Division of Federal Employees' Compensation (DFEC)
Part 1
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4. Division of Federal Employees' Compensation (DFEC) Overview |
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6. General Provisions of the Federal Employees' Compensation Act (FECA) |
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8. Statutory and Regulatory Provisions relating to Return to Work (RTW) |
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1. Purpose. The Office of Workers' Compensation Programs (OWCP), Division of Federal Employees' Compensation (DFEC) administers a Vocational Rehabilitation Program to utilize contracted Rehabilitation Counselors (RC) to assist with the rehabilitation and return to work (RTW) efforts of the Injured Worker (IW). This effort involves a collaborative process between the IW, RC, DFEC Rehabilitation Specialist (RS) and Claims Examiner (CE) and may also include the DFEC Field Nurse (FN), treating physician, medical and rehabilitation provider(s) and previous or new employers. Assignment of an RC typically occurs when the IW has been medically approved to return to work with specific work restrictions, but may occur at earlier stages as well.
This handbook is intended to be used by all OWCP/DFEC RSs and contracted RCs certified with the DFEC Vocational Rehabilitation Program handling cases in connection with the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101 et seq; 20 CFR Part 10. Its purpose is to provide RSs and RCs with information necessary to understand program policies and to assist the RCs in adhering to program requirements and performance expectations in assigned cases.
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2. Scope.
a. Rehabilitation Counseling is a profession with recognized objectives and standards which facilitate a process for the rehabilitation and employment of persons with disabilities, usually via assessment, planning, coordination, and provision of relevant services. Private Rehabilitation Counseling in the workers' compensation arena is a specialty within the larger field of vocational rehabilitation with a focus on the reemployment of IWs through efficient and cost-effective service delivery. Within this specialty, private RCs seek to meet the needs of clients being served while working in cooperation with, and being cognizant of, the needs of other participants involved in the process.
(1) While the IW is the focus for services, the RC must work within the structure and provisions of the workers' compensation program and cooperate with other stakeholders, including new employers and the prior employing agency. This may offer unique challenges for the RC, which at times may differ from the rehabilitation process as utilized in other public or private settings. However, while programmatic procedures may vary among delivery systems and organizations, the goals of vocational rehabilitation remain consistent across all practice settings: promotion of quality rehabilitation and return to work.
As a contracted, certified RC for the OWCP/DFEC, the RC agrees to apply both independent professional standards as well as those directed by the DFEC program.
(2) Some DFEC procedures may differ, from those of other programs, which may consequently impact the RC's role, including:
(a) Participation in the Vocational Rehabilitation Program under the FECA is not voluntary. An injured Federal worker has a statutory obligation to cooperate with rehabilitation and placement efforts. Sanctions may be imposed upon those who obstruct or do not cooperate with this process.
(b) Reemployment goals under the FECA must be guided primarily by the potential to return the IW to work in an efficient time frame with a salary that minimizes wage loss. While the RC's counseling interventions must take into account the IW's interests as an important factor in the planning and decision making process, personal desire to pursue a particular training or occupation may not be outweighed by program requirements.
(c) FECA reemployment goals must be consistent with the Dictionary of Occupational Titles (DOT). While supplemental resources such as O*Net may also be utilized and referenced, the RC must rely on the DOT as the primary resource for planning.
(3) An RC providing rehabilitation services for the OWCP/DFEC program serves as a liaison for the OWCP/DFEC, which administers the provisions of the FECA. When implementing policies and procedures, the OWCP/DFEC must approach the provision of services in a non–adversarial, unbiased manner. The RC is expected to deliver rehabilitation services in that manner.
(4) As a contractor of the OWCP/DFEC, the RC is expected to follow the policies of the OWCP/DFEC while supporting the IW. OWCP expects expeditious handling of cases assigned at every stage of the rehabilitation process. There may be cases that the RC feels would benefit from ongoing rehabilitation services; however, from a program standpoint, the case may need to be moved on to the next stage of the process or closed. It is expected that the RC will support the decisions of the program and provide assistance with transitioning the case to the next phase.
(5) An RC may not use his/her association with the Government, including business contacts obtained through any work with the Government, to try to obtain personal benefits or favors for his/herself, friends, relatives, or business associates.
An RC may not use any Government affiliation for personal gain or for that of others, or use that affiliation in any manner to endorse a product service or enterprise.
(6) An RC is a contractor for OWCP/DFEC, but the Department of Labor's Office of the Solicitor cannot provide legal advice to an RC. Because the United States cannot defend or indemnify a contractor such as an RC in a lawsuit arising out of RC activities in connection with the FECA program, the RC may wish to consider obtaining liability insurance.
b. This handbook focuses on the following topics:
(1) Roles and responsibilities of key participants in OWCP/DFEC;
(2) DFEC's Rehabilitation process;
(3) Rehabilitation referral types, RC activities and time frames;
(4) Required OWCP/DFEC forms and reports;
(5) Billing procedures and authorizations; and
(6) Relevant information regarding the security and use of case file information consistent with the Privacy Act and OWCP/DFEC's routine uses.
c. Structure. This handbook begins with a brief overview of the OWCP/DFEC program and structure and relevant portions of the FECA. The remainder of the handbook is devoted to the OWCP Vocational Rehabilitation Program structure, policies, and guidelines.
d. A separate handbook exists for DFEC FNs and the Nurse Intervention Program.
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3. Office of Workers' Compensation Programs (OWCP) Overview. The mission of the OWCP is to protect the interests of workers who are injured or become ill on the job, their families and their employers by making timely, appropriate and accurate decisions on claims, providing prompt payment of benefits and helping IWs return to gainful employment as early as is feasible.
The OWCP administers four major disability compensation programs which provide wage replacement benefits, medical treatment, vocational rehabilitation services and other benefits to certain workers (or their dependents) who have experienced a work-related injury or illness. Each program serves a distinct employee group covered under the relevant statutes and regulations by mitigating the financial burden resulting from workplace injury/illness. The four programs administered by OWCP include the following:
- Federal Employees' Compensation Program
- Longshore and Harbor Workers' Compensation Program
- Black Lung Benefits Program
- Energy Employees Occupational Illness Compensation Program
The focus of this handbook is solely the Federal Employees' Compensation Program. However, it should be noted that the Energy Employees Occupational Illness Compensation Program does have a nurse program and the Longshore and Harbor Workers' Compensation Program has a vocational rehabilitation program.
More information about the OWCP can be found on the following website: http://www.dol.gov/owcp/
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4. Division of Federal Employees' Compensation (DFEC) Overview. The FECA provides workers' compensation coverage to nearly three million Federal and postal workers around the world for employment-related injuries and occupational diseases. It covers all civilian Federal employees except for non-appropriated fund employees. In addition, special legislation provides coverage to Peace Corps and VISTA volunteers; Federal petit or grand jurors; volunteer members of the Civil Air Patrol; Reserve Officers' Training Corps Cadets; Job Corps and Youth Conservation Corps enrollees; and non-Federal law enforcement officers under certain circumstances involving crimes against the United States. Temporary employees are covered on the same basis as permanent employees.
Benefits include wage replacement, payment for medical care, and where necessary, medical and vocational rehabilitation assistance in returning to work. All FECA benefits are paid from the Employees' Compensation Fund, and then charged back to the Federal employing agencies through the budget process in a subsequent year.
a. Jurisdiction and Office Structure. There are 12 District Offices, each headed by a District Director, who is responsible for overseeing claims administration. Each District Office has designated areas of responsibility and jurisdiction, which are provided at: http://www.dol.gov/owcp/contacts/fecacont.htm
b. District Office Staff. Supervisory Claims Examiners are responsible for the operation of individual claims units. Senior Claims Examiners and Claims Examiners (CE) are responsible for the adjudication, payment and management of claims. Staff Nurses (SN) oversee the Nurse Intervention Program in the district, and Rehabilitation Specialists (RS) oversee the Vocational Rehabilitation Program in the district.
c. More information about the DFEC can be found on the following website: http://www.dol.gov/owcp/dfec/index.htm
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5. Case Adjudication. The FECA is not an insurance program or medical plan, but a Federal law that provides benefits and compensation for injured Federal employees during their recovery from a work-related incident. The procedures related to claims adjudication and case management are specific to the implementation of the FECA and may vary from the management of private sector cases. The DFEC has its procedure manual available on line at http://www.dol.gov/owcp/dfec/index.htm, however, a few key concepts are outlined below:
a. Types of Claims.
(1) A traumatic injury is defined as a condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by external force, including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body affected. See 20 C.F.R. §10.5(ee). Traumatic injury claims are filed on a Form CA-1 (Notice of Traumatic Injury).
(2) An occupational disease or illness is a condition produced by the work environment over a period longer than a single workday or shift. See 20 C.F.R. §10.5(q). Occupational disease claims are filed on a Form CA-2 (Notice of Occupational Disease or Illness).
b. Burden of Proof. The IW is responsible for establishing the essential elements of his/her claim. The OWCP will help the IW meet this responsibility by requesting evidence needed to establish these elements if such information is not included with the original submittal.
c. Each claim for traumatic injury or occupational disease must meet five requirements before OWCP can accept the claim. See 20 C.F.R. §10.115. These requirements, which the employee must establish to meet his or her burden of proof, are as follows:
(1) The claim was filed within the time limits specified by the FECA;
(2) The IW was, at the time of injury, disease or death, an employee of the United States;
(3) The fact that an injury, disease or death occurred;
(4) The injury, disease or death occurred while the employee was in the performance of duty; and
(5) The medical condition for which compensation or medical benefits is claimed is causally related to the claimed injury, disease or death.
d. Acceptance. Once the OWCP accepts a claim, the burden of proof shifts from the IW to the OWCP. IWs remain in receipt of program benefits during the disability management phase of the injury, which includes nurse intervention and vocational rehabilitation.
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6. General Provisions of the Federal Employees' Compensation Act (FECA). The FECA is a complex mutli-faceted law. FNs and RCs are not expected to be experts in the FECA. Some general principles are outlined below, but if an IW has questions pertaining to specific provisions of the FECA, he/she should be directed to the CE.
a. Exclusive Remedy. Benefits provided under the FECA constitute a sole remedy against the United States for work-related injury or death. A Federal employee covered under the statute is not entitled to sue the United States or recover tort damages for such injury under any other law. 5 U.S.C. 8116. Proceedings under the FECA are non- adversarial.
b. Medical Services. The FECA, at 5 U.S.C. 8103, authorizes medical services for treatment of any condition/disease which is causally related to factors of Federal employment. No limit is imposed on the total amount of medical expenses or the length of time for which they are paid as long as the charges represent the reasonable and customary fees for the services involved and the need for the treatment can be shown. Most medical expenses are paid under a fee schedule.
The IW is entitled under the FECA to initially select a physician of his/her choice to provide treatment. The provider must meet the definition of "physician" under the FECA (which includes certain services provided by chiropractors and clinical psychologists) and must not have been excluded from payment under the program. Physicians employed by, or under contract to, the employing agency (EA) may examine the IW at the EA's facility, however, the IW's choice of physician must be honored and treatment by the IW's physician must not be delayed for the purpose of obtaining an EA directed medical examination.
c. Representation. Under 5 U.S.C. 8127(a), and in accordance with 20 C.F.R. §10.700, a claimant may authorize an attorney or other individual to represent his or her interests in any proceeding before OWCP, but such representation is not required. A statement signed by the claimant is required to establish the representative's appointment (or subsequent dismissal) and there can only be one authorized representative at any given time.
All requests for medical and/or other case file documentation from a legal representative should be made in writing to the OWCP. The FN and RC should not release case file documentation to a legal representative, but instead direct him/her to contact the responsible CE.
d. Restoration Rights with the Federal Government. Section 8151 of the FECA provides civil service restoration rights to Federal employees who have recovered either fully or partially from an employment-related injury or illness, and who can perform the duties of their original job or its equivalent. The EA must restore a permanent employee (i.e., one with career or career-conditional status) who recovers within one year after beginning compensation to that position or its equivalent. This provision does not apply to temporary or term employees, and not all individuals covered by FECA are entitled to restoration rights.
20 C.F.R. §10.505 explains that the employer should make all reasonable efforts to place the employee in his or her former or an equivalent position in accordance with 5 U.S.C. 8151 if the employee has fully recovered after one year. 20 C.F.R §353.301 provides an overview of restoration rights for fully recovered and partially recovered employees. The Office of Personnel Management (OPM) has jurisdiction and is responsible for enforcing this section. If an IW has issues or questions pertaining to restoration rights he/she should contact the EA or OPM.
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7. Disability Management (DM) Overview. The management of disability claims begins as soon as a new claim is received indicating that the IW has lost time from work as a result of the injury/illness or is disabled from his or her date of injury position. The DM process is outlined in detail in FECA Procedure Manual (PM) Part 2-0600.
a. DM is an active team approach where the CE, the EA, the IW and the medical provider(s) use all available tools to ensure medical recovery (to the extent possible) and facilitate a sustainable return to work (RTW). This includes, but is not limited to, utilizing services of contracted FNs and RCs.
b. DM consists of multiple case management components and various types of intervention actions which should take place simultaneously in order to produce the best possible outcome for the IW. While there are many active parties in the DM process, the responsible CE retains sole discretion to determine what actions should be taken.
c. When the medical evidence shows that total disability has ended, DFEC will make every reasonable effort to arrange for reemployment of the IW. These efforts always start initially with the EA. In the event that the EA is unable to offer suitable reemployment, however, DFEC attempts to place the IW with a new employer.
d. To assist with the RTW efforts, DFEC uses nurse intervention and vocational rehabilitation as the primary avenues to pursue reemployment of the IW.
(1) DFEC's Nurse Intervention Program, which consists of Continuation of Pay (COP) Nurses, as well as FNs, is discussed in FECA PM Part 2-811 and FECA PM Part 7, as well as this DFEC FN Handbook.
(2) DFEC's Vocational Rehabilitation Program is discussed in FECA PM Part 2-813 and FECA PM Part 8, as well as the DFEC RC Handbook.
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8. Statutory and Regulatory Provisions relating to Return to Work (RTW). Some applicable references are outlined below since many actions related to the RTW and vocational rehabilitation efforts are mandatory, not voluntary, under the FECA. Questions pertaining to these issues should be directed to the CE.
a. Statutory Provisions.
(1) 5 USC § 8104 describes the vocational rehabilitation services that the OWCP provides to help employees RTW.
(a) The Secretary of Labor may direct a permanently disabled individual whose disability is compensable under this subchapter to undergo vocational rehabilitation. The Secretary shall provide for furnishing the vocational rehabilitation services. In providing for these services, the Secretary, insofar as practicable, shall use the services or facilities of State Agencies and corresponding agencies which cooperate with the Secretary of Health, Education, and Welfare in carrying out the purposes of chapter 4 of title 29, except to the extent that the Secretary of Labor provides for furnishing these services under section 8103 of this title. The cost of providing these services to individuals undergoing vocational rehabilitation under this section shall be paid from the Employees' Compensation Fund. However, in reimbursing a State or corresponding agency under an arrangement pursuant to this section the cost to the agency reimbursable in full under section 32(b)(1) of title 29 is excluded.
(b) Notwithstanding section 8106, individuals directed to undergo vocational rehabilitation by the Secretary shall, while undergoing such rehabilitation, receive compensation at the rate provided in sections 8105 and 8110 of this title, less the amount of any earnings received from remunerative employment, other than employment undertaken pursuant to such rehabilitation.
(2) 5 USC § 8111(b) describes additional compensation the OWCP will pay for individuals undergoing vocational rehabilitation.
The Secretary may pay an individual undergoing vocational rehabilitation under section 8104 of this title additional compensation necessary for his maintenance, but not to exceed $200 a month.
(3) 5 USC §8113(b) describes what actions the OWCP will take if an employee refuses to undergo vocational rehabilitation.
If an individual without good cause fails to apply for and undergo vocational rehabilitation when so directed under section 8104 of this title, the Secretary, on review under section 8128 of this title and after finding that in the absence of the failure the wage-earning capacity of the individual would probably have substantially increased, may reduce prospectively the monetary compensation of the individual in accordance with what would probably have been his/her wage-earning capacity in the absence of the failure, until the individual in good faith complies with the direction of the Secretary.
b. Regulatory Provisions
(1) 20 CFR §10.310 outlines the basic rules for obtaining medical care and references FNs specifically.
OWCP may also utilize the services of a field nurse to facilitate and coordinate medical care for the employee.
(2) 20 CFR §10.500 provides the basic rules governing continuing receipt of compensation benefits and return to work
(a) Benefits are available only while the effects of a work-related condition continue. Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury. For example, an employee is not entitled to compensation for any wage loss claimed on a CA-7 to the extent that evidence contemporaneous with the period claimed on a CA-7 establishes that an employee had medical work restrictions in place; that light duty within those work restrictions was available; and that the employee was previously notified in writing that such duty was available. Similarly, an employee receiving continuing periodic payments for disability was not prevented from earning the wages earned before the work-related injury if the evidence establishes that the employing agency had offered, in accordance with OWCP procedures, a temporary light duty assignment within the employee's work restrictions. (The penalty provision of 5 U.S.C. 8106(c)(2) will not be imposed on such assignments under this paragraph.)
(b) Each disabled employee is obligated to perform such work as he or she can. OWCP's goal is to return each disabled employee to work as soon as he or she is medically able. In determining what work qualifies under 5 U.S.C. 8115 for determining the wage-earning capacity for a particular disabled employee, OWCP considers all relevant factors, including the employee's current physical limitations, whether the work is available within the employee's demonstrated commuting area and the employee's qualifications to perform such work.
(c) A disabled employee who refuses to seek or accept suitable employment within the meaning of
5 U.S.C. 8106(c)(2) is not entitled to compensation.
(d) Payment of medical benefits is available for all treatment necessary due to a work-related medical condition.
(3) 20 CFR §10.517 outlines the penalties for refusing to accept a suitable job offer.
(a) 5 U.S.C. 8106(c) provides that a partially disabled employee who refuses to seek suitable work, or refuses to or neglects to work after suitable work is offered to or arranged for him or her, is not entitled to compensation. An employee who refuses or neglects to work after suitable work has been offered or secured for him or her has the burden to show that this refusal or failure to work was reasonable or justified.
(b) After providing the two notices described in §10.516, OWCP will terminate the employee's entitlement to further compensation under 5 U.S.C. 8105, 8106, and 8107 on all claims where the injury occurred prior to the termination decision, as provided by 5 U.S.C. 8106(c)(2). However, the employee remains entitled to medical benefits as provided by 5 U.S.C. 8103.
(4) 20 CFR §10.518 outlines the services OWCP provides to help employees return to work.
OWCP may, in its discretion, provide vocational rehabilitation services as authorized by 5 U.S.C. 8104. Vocational rehabilitation services may include vocational evaluation, testing, training, and placement services with either the original employer or a new employer, when the injured employee cannot return to the job held at the time of injury. These services also include functional capacity evaluations, which help to tailor individual rehabilitation programs to employees' physical reconditioning and behavioral modification needs, and help employees to meet the demands of current or potential jobs.
(5) 20 CFR §10.519 describes what actions OWCP will take if an employee refuses to undergo vocational rehabilitation.
Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled employee to undergo vocational rehabilitation. To ensure that vocational rehabilitation services are available to all who might be entitled to benefit from them, an injured employee who has a loss of wage-earning capacity shall be presumed to be "permanently disabled," for purposes of this section only, unless and until the employee proves that the disability is not permanent. If an employee without good cause fails or refuses to apply for, undergo, participate in, or continue to participate in a vocational rehabilitation effort when so directed, OWCP will act as follows:
(a) Where a suitable job has been identified, OWCP will reduce the employee's future monetary compensation based on the amount which would likely have been his or her wage-earning capacity had he or she undergone vocational rehabilitation. OWCP will determine this amount in accordance with the job identified through the vocational rehabilitation planning process, which includes meetings with the OWCP nurse and the employer. The reduction will remain in effect until such time as the employee acts in good faith to comply with the direction of OWCP.
(b) Where a suitable job has not been identified, because the failure or refusal occurred in the early but necessary stages of a vocational rehabilitation effort (that is, interviews, testing, counseling, functional capacity evaluations, and work evaluations), OWCP cannot determine what would have been the employee's wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in the absence of evidence to the contrary, OWCP will assume that the vocational rehabilitation effort would have resulted in a return to work with no loss of wage-earning capacity, and OWCP will reduce the employee's monetary compensation accordingly (that is, to zero). This reduction will remain in effect until such time as the employee acts in good faith to comply with the direction of OWCP.
(6) 20 CFR §10.521 outlines the effect an election of retirement benefits will have on benefits if such election is made during a vocational rehabilitation effort.
Where an employee is undergoing vocational rehabilitation, or where OWCP is attempting to otherwise place that employee in a suitable job, and that employee elects to receive retirement benefits from the Office of Personnel Management instead of benefits under the FECA, the OWCP may proceed with a loss of wage-earning capacity determination which may reduce FECA entitlement as long as the determination is based on the evidence of record at the time of such election.
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