Revisions to the FECA Manual-Part 1 of 4: Job Offers and Return to Work

OWCP has changed the FECA manual regarding job offers and return to work. The changes were made as a recognition of the concept embodied in the legislative history of the 1916 Act that an “employee is bound to do what work he can.”

The FECA Manual Part Two at 2-0814 now only addresses job offers, temporary light duty assignments and abandonment of employment.

If the claimant cannot return to their date of injury position, the employing agency can make a job offer of light or limited duty.

A job offer may be solicited by a rehabilitation specialist, rehabilitation counselor, staff nurse, field nurse, claims examiner or by the claimant.

Some of the changes included are:

The existing elements of a job offer are still in effect, however a legitimate job offer now requires a work schedule be added.

If the job offer is for a site outside the claimant’s residential area, the employing agency must document that it first searched for suitable employment in the claimant’s geographic area before it settled on a position outside the claimant’s geographic area and must provide this documentation to OWCP.

If the medical evidence substantiates that a gradual return to work is necessary, the job offer must specify the dates of the increased hours corresponding with the claimant's prescribed restrictions.

The employing agency must send a copy of the written job offer to OWCP, along with the medical evidence used as the basis for the job offer (if OWCP does not already have a copy).

Previously, OWCP determined that a job which involved less than four (4) hours of work per day where the claimant had been released to work more than four (4) hours per day would not be suitable. In the new rules, OWCP has determined that employing agencies need flexibility to provide suitable work to claimants. OWCP has made the change that the employing agency may offer a job for fewer hours than the claimant was released to work as long as the job offer is for at least half the total hours. In other words if a claimant was released to work six (6) hours per day, the employing agency can make a job offer of three (3) hours per day and OWCP may find the job offer suitable.

Where less than four (4) hours had previously been determined to be an unsuitable job offer, now a job offer of less than two (2) hours per day and less than 20 hours per pay period will be considered unsuitable.

If the employing agency cannot provide a job offer for the full number of hours the claimant has been released to work, the employing agency must provide OWCP written verification that it is unable to provide a job offer for the full number of hours. If OWCP has this written verification from the employing agency, the job offer can be determined to be suitable.

The new rules indicate that where OWCP is not clear on whether the position offered to the claimant is temporary or permanent; OWCP must contact the employing agency and ask for clarification in writing.

New references for teleworking as a viable option for offering suitable employment have been added. Factors OWCP must consider regarding teleworking are; whether the claimant previously performed teleworking. If the employee had already performed teleworking, then a job offer that involves teleworking should be acceptable.

If the claimant had not previously performed teleworking, the additional factors OWCP must consider are; whether the claimant has an appropriate work space (including any necessary furniture) available. If not, the job offer should include the employing agency’s intention to purchase any equipment deemed necessary, whether the claimant has the necessary technological capacity (internet connectivity, computer, etc.). If not, the job offer should include the employing agency’s intention to purchase any equipment deemed necessary and whether the claimant will be able to perform any necessary training remotely.

A limited referral for vocational rehabilitation services may be necessary if the claimant alleges that any of the above factors of teleworking have not been met. Any refusal to cooperate with the Rehabilitation Counselor assigned to confirm or arrange for the necessary accommodations may result in sanctions.

A job offer which represents seasonal employment will generally be considered unsuitable unless the claimant was a career seasonal or temporary employee when injured. However, in locations where year-round jobs are scarce, a seasonal position may be considered suitable for an employee who previously held a year-round job. In either case, the job must reasonably represent the claimant's wage earning capacity.

A temporary job offer will be considered unsuitable unless the claimant was a temporary employee when injured, and the temporary job reasonably represents the claimant's wage earning capacity. Even if all other conditions are met, a job offer which will terminate in less than 90 days will be considered unsuitable.

The weight of medical evidence must establish that the claimant is physically capable of carrying out any physical requirements of the job. If the claimant has an emotional condition, there may be other requirements that must be met for the position to be deemed suitable (for example, not working in a particular environment).

After assessing the position and determining that it is a suitable offer of employment, OWCP must confirm with the employing agency that the job remains open and available to the claimant. This must be documented in the claimant’s file.

If medical reports in the file document a condition which has arisen or worsened since the compensable injury, and this condition disables the claimant from the offered job, the job will be considered unsuitable (even if the subsequently acquired condition is not work-related), as the claimant must be taken as a whole person. If a non-work-related condition results in work restrictions, those must be considered. 

OWCP may need to develop this evidence with the claimant and seek an OWCP directed examination, if necessary, to determine the severity of any such restrictions. (See E.G. and Department of the Interior, Docket No. 11-1730 issued October 14, 2011 http://www.dol.gov/ecab/decisions/2011/Oct/11-1730.htm)

OWCP must then advise the claimant in writing that:

The job offered is considered suitable. OWCP should explain how it determined that the job offer is suitable and identify the medical evidence which represents the weight of medical opinion with respect to the claimant's work capacity.

The job remains open and available for the claimant.

The claimant will be paid compensation for the difference (if any) between the pay of the offered job and the pay of the claimant's date of injury job.

The claimant can still accept the job with no penalty.

The claimant has 30 days from the date of OWCP’s notification letter to either accept the job offer or provide a written explanation of the reason(s) for refusing it. There is no change to a claimant’s “Maggie Moore” rights (notification with 30 days to accept the job offer and if no acceptance, notification with 15 days prior to termination of benefits).

That a claimant who unreasonably refuses an offer of suitable employment is not entitled to any further compensation benefits (with the exception of medical expenses for treatment of the accepted condition). The letter should cite the specific language of §8106 of the FECA ("a partially disabled employee who refuses to seek suitable work, or refuses or neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.").

The claimant must also be advised whether relocation expenses will be paid if the job offer is not within the claimant's commuting area. 

Revisions to the FECA Manual 3-0500 regarding Independent Medical Examinations, (IME)

An Independent Medical Examination, (IME) also called a Referee examination is scheduled to resolve a medical conflict between the claimant’s physician and OWCP’s physician. 

OWCP assigns more weight to the opinions contained in an IME report and negative decisions are often issued from these opinions. This is why the IME physician must be chosen at random on a rotational basis.

Once OWCP selects the IME physician for a claimant, a report called the ME023 is generated.

The Employees’ Compensation Appeals Board, (ECAB) has questioned OWCP’s documentation of the process of selecting the IME at random; stating that OWCP has other documentation available that was not being presented by OWCP as evidence of the rotational selection and that the ME023 report alone was insufficient to substantiate proper random selection of the IME physician.

Due to the questions and concerns from the ECAB, the requirements of documenting an IME have been revised and the ME023 report has been enhanced.

The enhancements include a listing of all physicians contacted and bypassed prior to the selection of the IME physician, as well as a certification statement. This information was previously included in certain case files via screen shots, but in many cases that information was not readable due to the quality of the screen shots and in turn unusable by the claimant in proving whether or not the IME was in fact selected on a random rotational basis.

The updated version of the ME023 report can only be generated for IME appointments created on and after December 17, 2012. It cannot be generated for appointments made prior to December 17, 2012.

The process for IME selection and scheduling has not changed. OWCP will continue to use a rotational method for selection of IME physicians but the prior version of the ME023 report (without bypass information) can no longer be duplicated.

Under the new system, when the scheduler inputs the appointment date and time, the ME023 is generated for imaging directly into the claimant’s case file.

A 200 mile radius has been set as the outer limit for zip code selection. The FECA Manual part three has been updated to indicate that this 200 mile radius is calculated from the claimant’s home zip code.

Updates were made to the IME selection process so that the physicians were automatically grouped into zip clusters based upon specified mileage ranges outside of the initial zip cluster (50 miles, 75 miles, and continuing in 25 mile increments up to 200 miles), now seen on the ME023 report.

Where circumstances exist (such as when an obscure specialty is required, or no physicians of the required specialty are within the 200 mile radius), scheduling outside the 200 mile range may take place. If this occurs, the scheduler should consult an appropriate directory of medical specialists to obtain names of suitable physicians for referral.

If the scheduler reaches the 200-mile mark and still cannot find a physician, a print screen from the application showing that there are no physicians within that range should be placed in the case file. The scheduler will then need to use an alternative method for scheduling the examination. Documentation outlining the rationale for this decision must now be placed in the case file, and the decision must be approved by a Supervisory Claims Examiner or higher level authority.

If all physicians presented are bypassed and there are no physicians available within the 200 mile zip code range, the application system prompts the medical scheduler to select a range of miles for selection of another zip code. The scheduler incrementally chooses zip code ranges so that the closest available appointment to the claimant’s home zip code can be scheduled.

When the scheduler inputs the claim number, the claimant’s home zip code is automatically loaded. The scheduler then selects the specialty of the physician required. Based on specialty and zip code, the next physician on the roster appears on the screen. This continues until the appointment is scheduled.

The roster of physicians is not visible to the scheduler and s/he can only see and update information pertaining to the selected physician until a decision is made to schedule the IME or bypass the physician. The search results are in alphabetical order, based on the specialty and the claimant’s home zip code. As physicians are bypassed and/or already have appointments scheduled, the physician is then placed at the bottom of the roster.

The scheduler will then contact the physician and determine if the appointment can be scheduled in a timely manner.

If the appointment cannot be made in a timely manner, the scheduler updates the application with an appropriate bypass code. Once a bypass code is entered, the system will then present the next physician on the roster. This continues until the IME is scheduled.

If the appointment can be scheduled, the scheduler inputs the appointment date and time onto the application. The ME023 report is then copied into the claimant’s file and the claimant is notified of the IME appointment.

The ME023 report can only be generated through this application process and serves as the claimant’s evidence that the IME was scheduled on a rotational basis. If for some reason the ME023 report is not included in the claimant’s file at the time the IME is scheduled a copy of the ME023 can be obtained by OWCP. However, under the new system, no adjustments can be made to the original information contained within the ME023 report and it will have the original date the report was generated.

If a scheduled IME has to be cancelled or rescheduled for any reason, the claimant’s file should be clearly documented using the appropriate code.

Codes used during the IME scheduling process are as follows:

Code A - Appointment Cancelled. This code is used when an appointment has been cancelled by either the physician or OWCP. This code is not a bypass code option.

Code B - Busy. This code is used when the physician cannot schedule an appointment in a reasonable amount of time (usually within 60 days) or is on extended leave or a leave of absence. A note is required to further explain usage of this code, e.g. “physician is on medical leave of absence – unknown return date.” This code should NOT be used if the telephone line is busy or if the medical receptionist indicates the physician is too busy at the moment to take the call.

Code C - Conflict. This code is used if the physician, or his/her associate, has a previous connection with the claim. This also includes physicians performing fitness for duty exams for the employing agency.

Code D – Physician does not accept OWCP patients. This code is used if the physician will not accept any OWCP cases, will not do an IME, will not accept workers’ compensation cases, or is not willing to perform examinations for OWCP.

Code E - Excluded/Lost license. This code is used if a physician is an excluded provider or has lost required licensing. This code is not a bypass code option but can be used in other portions of the application.

Code L - Location is too far for claimant. This code is used when the physician’s office is too far for the employee to travel, or the claimant may be medically unable to travel long distances to report for the examination. A note is required to further explain usage of this code, since distance to travel is accounted for in the rotational presentation of physicians in the application.

Code M - Physician moved out of zip code area. This code is used when the physician is no longer at the address shown in the database. The medical scheduler should attempt to obtain current contact information to update the physician’s address. If the physician is still within the same zip codes as the address in the application, the address can be updated and the appointment scheduled.

Code O - Other. This code is used when none of the other bypass reasons are applicable. This code is appropriate to use when no one answers the phone (e.g. “phone rings continuously with no answer”) or the phone number has been disconnected (e.g. “phone disconnected/no other contact number noted”). A note is required to explain usage of this code, and code O should not be used if there is another appropriate code.

Code O is also appropriate if the scheduler must leave a message. If a message must be left, the scheduler should note the name of the person who was contacted or that a message was left on a voice mail. While waiting for a return call, the appointment with that particular physician should be put into a “pending” status. The scheduler should allow the physician’s office a minimum of two business hours for a return call (as determined by usual physician business hours). If the physician’s office does not call back within this period of time, the physician can be bypassed with the O code and another physician can be contacted. 

When the scheduler removes the “pending” status, the bypass note should be updated with an annotation that no call back was received. If a call back was received, and it was determined that the appointment could not be scheduled for some other reason (related to another bypass code), the record should be updated accordingly.

Code S – Sub-specialty. This code is used if the case requires a different subspecialty, or if the physician does not evaluate the specific body part or extremity. For instance, the physician will only perform exams for back conditions but the claimant has an upper extremity injury.

Code U - Physician in use by another scheduler. This code is used when the physician is in use by another scheduler. It is not available as a bypass option; it is automatically updated when the next physician in the rotation is currently in use or in pending status (being contacted for an appointment) by another scheduler.

If a claimant is being sent to or has been sent to an IME on or after December 17, 2012, a copy of the ME023 report and all other documentation should be requested so that the claimant has proof the IME was in fact randomly selected. If the IME appointment is outside the 200 mile range of the claimant’s zip code, documentation must now be in the claimant’s file.

If the claimant hasn’t done so, a copy of the claimant’s file should also be requested as the ME023 report and all other documentation should be contained in the claimant’s file and often it is quicker for a claimant to get a copy of their file than a response from their CE.

If the IME was not randomly selected, the claimant can use that information to overturn the IME report or use the fact that the IME was not randomly selected on appeal.

Change to ICD-10 Codes Announced

OWCP will adopt the use of the International Classification of Diseases, 10^th Edition diagnosis and procedure codes (ICD-10) beginning October 01, 2014 replacing the ICD-9 codes used to report medical diagnosis and inpatient procedures.

On or after October 01, 2014, OWCP will require all providers to only use the ICD-10 codes for services provided.

For services provided prior to October 01, 2014 only ICD-9 codes will be accepted.

After October 01, 2014 if your providers use ICD-9 codes, claims/bills will be denied. Claims and bills can be resubmitted for payment/acceptance with the proper ICD-10 codes.

A claimant’s providers should be made aware of this change to avoid delays in acceptance of claims and/or payment of bills.

Here is the link to the ICD-10 code website: http://www.icd10data.com/ICD10CM/Codes  

ICD-9 to ICD-10 conversion: http://www.icd10data.com/Convert

FECA Benefits for Legally Married Same Sex Couples

On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA limited the definition of spouse to a person of the opposite sex who is a husband or wife, and as a result, augmented FECA compensation was not available based on a claimant's same sex spouse. The Office of Workers' Compensation Programs (OWCP) has begun to implement the ruling of the Supreme Court.

Benefits under the Federal Employees' Compensation Act (FECA) impacted by Windsor include augmentation of compensation (5 U.S.C. § 8110), survivor benefits (5 U.S.C. § 8133), beneficiaries of schedule awards unpaid at death (5 U.S.C. § 8109), and payment of the FECA death gratuity to a spouse (5 U.S.C. § 8102a).

The FECA program's long held position as set forth in FECA Program Memorandum No. 156 (issued May 30, 1972) explicitly provides: "The validity of a marriage is determined by the law of the jurisdiction where the marriage took place."[Emphasis added.] Therefore, an employee or claimant legally married to a same sex spouse is entitled to any and all FECA benefits that would be extended based on a valid marriage regardless of their place of residence or domicile. The same principles apply to surviving spouses and stepchildren of same sex marriage.

There are numerous places in the FECA, its implementing regulations and procedures that include gender-neutral terms that refer to marital status, such as "spouse," "surviving spouse," "marriage," and "married." These terms will be read to include an individual married to a person of the same sex if the couple is lawfully married under the law of the jurisdiction where the marriage took place. The term "marriage" will be read to include a marriage between individuals of the same sex.

FECA also uses the terms "widow" and "widower," which are defined in a gender-specific manner. FECA provides that: "'widow' means the wife living with or dependent for support on the decedent at the time of his death, or living apart for reasonable cause or because of his desertion," 5 U.S.C. § 8101(6), and "'widower' means the husband living with or dependent for support on the decedent at the time of her death, or living apart for reasonable cause or because of her desertion," 5 U.S.C. § 8101(11). "Husband" and "wife" are also used in the statute, but are not defined. See 5 U.S.C. §§ 8101, 8110, 8133. In light of Windsor, the terms "widow," "widower," "husband," and "wife" as used in FECA will also be interpreted to include same-sex spouses.

For the most part, the Division of Federal Employees' Compensation's (DFEC's) existing practices and processes will simply apply to the granting of benefits based on a valid same sex marriage.

OWCP has determined that claimants who are in a same sex marriage should not be required to provide a higher level of detailed documentation than claimants who are in an opposite sex marriage.

The Office of Personnel Management (OPM) has announced that it will extend health and other benefits to Federal employees and annuitants who have legally married a spouse of the same sex.

Granting of Augmented Compensation:

FECA provides a basic rate of compensation for disability equal to 66 2/3 percent of the injured employee's pay. 5 U.S.C. §§ 8105, 8106. Where the employee has one or more dependents as defined by the FECA, the employee is entitled to have basic compensation augmented at the rate of 8 1/3 percent, for a total of 75 percent of pay. 5 U.S.C § 8110 (b).

1. If a claimant applies for augmented compensation based on a same sex marriage, that claimant will be expected to supply proof of a valid marriage in the form of a marriage certificate to the same extent and in the same manner that any claimant would be expected to supply marriage proof. This proof will generally consist of a marriage certificate issued by a jurisdiction/state that recognizes same sex marriage.

2. A claimant seeking augmented compensation who has previously been married must produce proof of divorce.

3. Where a claimant previously precluded from seeking benefits based on Section 3 of DOMA establishes a same sex marriage, augmented compensation (if not previously granted due to the existence of another eligible dependent such as a child) will be granted retroactively back to the date of the valid same sex marriage or the triggering event for payment, whichever is later.

4. Consistent with DFEC historic practice, in cases where a CA-7 claim is received from the employing agency, the employing agency may assist in verifying marital status in the initial stages of the claim.

Survivor benefits:

FECA provides survivor benefits to surviving spouses in accordance with a statutory formula set forth in 5 U.S.C. § 8133. The statutory percentage paid to a spouse differs based on whether there are dependent children.

1. Because Section 3 of DOMA has been declared unconstitutional, it is possible there are surviving same sex spouses whose entitlement post Windsor will reduce the payments made to surviving qualifying children. Any payment to a surviving same sex spouse who has established a valid marriage will be issued retroactive to the date of the employee's death.

2. Because the payments to the dependent children were legally correct at the time of payment, all adjustments to benefits due to the children will be prospective and no overpayments will be declared.

3. Under the definition of child under FECA (5 U.S.C. § 8101 (9)), the stepchildren of same-sex married couples also qualify for survivor benefits.

Note: Because of the many ways that a death claim may be found timely (including a prior disability claim, or notice to the agency) under 5 U.S.C. § 8122, claims examiners have been reminded that survivor claims impacted by Windsor should not reflexively be denied on the basis of time limitations and that the National Office should be consulted prior to denial of any survivor claim that involves a same-sex marriage.

Beneficiaries of schedule awards unpaid at death:

Section 8109 of the FECA provides for the order or precedence of beneficiaries of schedule awards unpaid at the time of a claimant's death where an employee has filed a valid claim for a schedule award during his or her lifetime and where the employee dies from a cause other than the injury.

1. The order of precedence provided by 5 U.S.C. § 8109(a)(3)(D) is to the surviving spouse if there is no child; if there is both a surviving spouse and a child or children, one half to the spouse and the remaining half to the child or children. If there is no surviving spouse, payment is to the child or children. (Section 8109 then provides for payment to dependent parents and relatives thereafter if there is no surviving spouse and no surviving child.)

2. As with the survivor benefits discussed above, a surviving same sex spouse who has established a valid marriage will be issued his or her appropriate share, while any required adjustments to the payments to children will be prospective only and no overpayments will be declared.

3. As with survivor benefits discussed above, under the definition of child under FECA (5 U.S.C. § 8101 (9)), the stepchildren of a same sex married couple also qualify for survivor benefits.

D. FECA Death Gratuity:

Section 8102a of the FECA provides for a death gratuity of $100,000 for the survivors of an employee who dies of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation. Unless the order of precedence is varied by the designation of an alternate beneficiary, the gratuity is paid in full to a surviving spouse, if one exists. In cases where a claimant was previously precluded from seeking benefits based on Section 3 of DOMA, that payment may be made to a surviving same sex spouse where that spouse is able to establish a valid marriage.

Under 5 U.S.C. § 8102a(d)(6), if an employee has a spouse but designates a person other than that spouse to receive all or a portion of the FECA death gratuity, the employing agency is required to provide notice of the designation to the spouse. Accordingly, the agency will need to notify any same sex spouse if such a designation is made.

Administering Health (FEHB) and other Federal Benefits:

Under the OPM guidance noted above, same sex spouses and children of same sex marriage are entitled to the same benefits as opposite sex spouses and children of opposite sex marriages.

Note: FECA authorizes certain payments conditioned upon the existence of a marriage. Prior to the Supreme Court's Windsor decision, OWCP was not able to recognize the legal marriages of same-sex couples. With the striking down of Section 3 of DOMA, OWCP can now treat same-sex marriages, same-sex spouses, and children of same-sex marriages as eligible for certain FECA payments. However, because FECA conditions these payments on the existence of a marriage, individuals in other kinds of relationships, such as civil unions and domestic partnerships (whether same-sex or opposite-sex), are still not eligible for FECA payments. FECA benefits also continue to be unavailable to all ex-spouses, whether same-sex or opposite-sex. See William S. Capeller, M.D., 28 ECAB 262, 264 (1977) (An ex-wife does not come within the definition of wife under FECA.)

FECA Manual Part Two: http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-Part2.pdf

FECA Manual Part Five: http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-PT5/

United States vs. Windsor:  http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf