Division of Federal Employees' Compensation (DFEC)
Part 6
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1. Overview. Most often, vocational rehabilitation services begin with a request for the Rehabilitation Counselor (RC) to explore a possible return to work with the Injured Worker's (IW) previous Federal employer. While this may be done in conjunction with, or parallel to, other rehabilitation services, it is an important part of the FECA rehabilitation effort and is always the first priority.
Section 8151 of the FECA provides civil service retention 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 the original job or its equivalent. The FECA regulations at 20 C.F.R. §10.505 explain 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. Under 5 U.S.C. 8151, the Federal employer must restore a permanent employee (i.e., one with career or career-conditional status) who recovers within one year after beginning disability/wage loss compensation to that position or its equivalent. This provision does not apply to temporary or term employees. The Office of Personnel Management (OPM), not the OWCP, has jurisdiction over retention and restoration rights and is responsible for enforcing this provision. The OPM regulations at 5C.F.R §353.301 provide an overview of restoration rights for fully recovered and partially recovered employees.
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2. Benefits of Placement - Previous Employer (PPE). IWs most often prefer to return to work with previous employers and there are a variety of advantages for both parties because:
a. It is often the quickest way to return the IW to duty.
b. It reduces potential salary loss for the IW that may come with a new employer or career change.
c. It may preserve the IW's pension, benefits and seniority rights.
d. It places the IW in a familiar environment and may decrease anxiety about returning to work.
e. It allows the employer to maintain an experienced employee, saving recruitment and training costs.
f. It can reduce or eliminate disability/wage loss compensation payments and costs incurred by the employer.
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3. Initial Steps. Unless the previous employer has already explicitly refused reemployment for the IW, and/or the Rehabilitation Specialist (RS) instructs otherwise, the RC should contact the previous employer first to explore return to work possibilities. The employer's point of contact information will be included in the DFEC referral information.
Often, a contracted DFEC Field Nurse assigned to the IW's case has already been in contact with the employer and may have initially addressed return to work possibilities. Usually, however, a Field Nurse will no longer be assigned to the case when it is referred for vocational rehabilitation services, but there are exceptions. See paragraph 12 of this Part: Dual Tracking.
If a Field Nurse is no longer assigned to the case, the RC should review the nurse's reports along with the referral information and confer with the RS, if necessary, to discuss the status of the return to work effort to avoid duplicating efforts. If it is not absolutely clear that the previous employer cannot accommodate the IW, the RC should independently contact that employer to inquire about the availability of work accommodations.
As noted in paragraph 12, if a Field Nurse is still assigned to the case, the RC should approach the employer in conjunction with the nurse, as appropriate.
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4. PPE Process.
a. The RC should contact both the IW and the previous employer within 10 business days of receipt of the referral. Initial contacts with both the IW and the employer may be telephonic.
b. The RC should schedule an in-person initial interview with the IW in an accessible location as quickly as possible after the first contact in order to ensure prompt action and provision of services. In rare circumstances, if an in-person interview is not possible, the RC may receive authorization from the RS to use an alternate method to complete the interview.
c. The RC should work with both parties to determine whether a return to previous duties is possible, with or without accommodations. Exploration and discussion of other options should take place as well, e.g. light or modified duty, gradual return to work, telework ,or reassignment to a different job within the agency. As noted in paragraph 6 below, any job offer must meet certain pre-established criteria.
d. Within 30 days, the RC should assess prospects for return to work placement with the previous employer. At that time, if the employer has not identified a position, the RC should contact the RS to discuss how to proceed. If exploration of modified or alternate duty is in process, it may be appropriate to extend the PPE phase and continue to work with the previous employer while also initiating services which may lead to placement with a new employer. In some circumstances, the RS may direct the RC to begin working jointly on both placement with the previous employer and plan development for a new position/employer from the start of the referral.
e. Even if the original PPE phase is extended, the PPE process should usually not exceed 60 days unless a return to work is imminent. If there is an actual return to work, the RC should provide follow-up services for an additional 60 days.
f. Requests for time extensions in exceptional circumstances must be made to the RS as early as possible for consideration. The requests should be in writing and include a justification of the need for extra time.
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5. Rehabilitation Counselor (RC) Services. RCs are expected to provide support in the following ways, though this list is not exclusive:
a. Technical advice and counseling related to accommodations and disability issues, as well as exploration with the employer to identify other job possibilities within the agency.
Note - Questions concerning an employing agency's legal responsibility to accommodate its employees under Section 501 of the Rehabilitation Act (and related laws) should not be answered by the RC, as that is the responsibility of the employing agency's legal counsel.
b. Time-limited medical rehabilitation services – Functional Capacities Evaluation (FCE), Work Hardening – to assist with clarification of work tolerances, work restrictions and/or accommodations. See Part 4 of this handbook.
c. Ergonomic and assistive technology assessments to identify accommodations in same or new job. See Part 5 of this handbook.
d. Job Site Analysis in which the RC documents the physical and/or other requirements that a specific job entails and then makes recommendations as to whether or not the job is within the work tolerance limitations of the IW and/or if it could be adapted ergonomically or with other accommodations to do so.
e. Vocational testing and transferrable skills analysis to identify the IW's aptitudes and abilities which may transfer to new positions within the agency. See Part 5 of this handbook.
f. Short-term, targeted training which may qualify the IW for an alternate position with the employer (e.g. computer, clerical skills). See Part 5 of this handbook.
g. Guidance and counseling with the IW on disability and return to work issues; foster motivation and engagement in the return to work process.
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6. Job Offer from Previous Employer. If a position is identified and a return to work is intended, the employer must first provide a written job offer.
a. Job Offer Requirements. The RC should work with the employing agency (EA) to craft an offer that includes the following elements:
(1) A description of the duties to be performed;
(2) The specific physical requirements of the position and any special demands of the workload or unusual working conditions;
(3) The organizational and geographical location of the job;
(4) The date on which the job will first be available;
(5) The claimant's work schedule;
(6) Pay rate (salary) information; and
(7) The date by which a response to the job offer is required.
b. A job offer should be consistent with the employee's vocational qualifications and medical restrictions as determined by the Claims Examiner (CE). When a job offer is made by the previous employer, the RC should review it to determine whether these criteria have been met. The ultimate determination regarding suitability of the job offer, however, can only be made by the CE (see Part 7, paragraph 5, of this handbook and the FECA Procedure Manual 2-814 for a further discussion of job offer suitability).
(1) Vocationally – The job should be compatible with IW's educational and vocational capabilities. This is usually not an issue with PPE since the EA will have greater knowledge of the IW's vocational skills and abilities than OWCP based on the IW's initial application and work experience and/or would be able to provide any training necessary to perform the job. Therefore, an extensive assessment of these criteria is usually not necessary unless there is evidence suggesting a vocational inability to perform the job or an objection is raised by the IW, in which case the RC should address the issue with the EA and advise the RS of this information immediately.
(2) Medically – The medical evidence should establish that the IW is able to perform the job, taking into consideration medical conditions due to the accepted work-related injury or disease, and any other medical conditions (including those that pre-existed the work injury and those that have arisen since the injury). If pre- or post-existing conditions disable the IW from an offered job, the job cannot be considered suitable by the CE. For example, an IW with an accepted back condition may have developed a nonemployment-related cardiac condition of sufficient severity to render the job unsuitable.
(3) Other factors to consider -
(a) Ideally, a job offer should be made for the number of hours for which the IW has been released to work. When this is not possible, the previous employer may offer a job for fewer hours. As long as the offer is for at least half of the total hours for which the IW has been released to work, it may be found suitable. However, a job offer of less than two hours per day (or less than 20 hours per pay period) will always be considered unsuitable. If the previous employer cannot accommodate the full number of hours for which the IW has been released to work, the employer must provide written verification that it is unable to do so.
(b) A seasonal job will usually be unsuitable unless the IW was a seasonal employee when injured. Seasonal positions, if suitable, must last 90 or more days.
(c) A temporary job is usually unsuitable unless an IW was a temporary employee when injured. A temporary position, if suitable, must last for 90 or more days.
c. The RC should verify that the job offer is received by the IW and OWCP. The CE will review the job offer and issue a suitability determination if the IW does not return to work.
d. When considering the job offer, the IW should be aware that under the FECA an employee is required to accept a suitable offer of employment from his/her previous employer.
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.
The IW must be flexible with regard to duties, hours, shift, pay, position location, travel requirements, environment, or other benefits which may have changed. If the IW has questions related to the impact of reemployment on Federal benefits, he/she should be encouraged to discuss the job offer with the employer or CE.
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7. Job Offer Accepted. If the IW accepts the employer's job offer, the RC should immediately document and communicate this information to the RS and assist with the identification of a start date and any VR services needed to assist with the transition back to work.
a. Once a return to work date has been established the RC should immediately notify the RS and submit a Rehabilitation Action Report, Form OWCP-44 (or DFEC specified equivalent).
b. Unless otherwise instructed, the RC should provide follow-up services over the next 60 days. These services may include technical assistance, counseling and guidance and/or any additional vocational rehabilitation services needed by the IW or employer and approved by the RS.
c. The RC should contact the IW and employer at minimum during the first day on the job, at the end of the first and second months of employment, and prior to closure of the file. At least one of these contacts should be an in-person job site visit. However, the RC is not limited to only these contacts and should maintain communications with both parties, as needed, to assist with problem solving and to ensure a smooth transition back to work.
d. All regular communications and any problems which may arise should be documented and reported promptly to the RS. If the RC feels that a time extension for additional services or increased professional hours is required, a request with justification should be submitted promptly in writing for the RS's consideration.
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8. Job Offer Rejected. If the IW rejects the employer's offer, the RC should immediately notify the RS and submit a Rehabilitation Action Report, Form OWCP-44 (or DFEC specified equivalent), providing the IW's reasons for concern and rejection of the offer, if known. The RC should discuss with the RS how to proceed with VR services. The RC should also advise the IW to contact his/her CE to discuss concerns. If these are related to the need for accommodations or the ability to perform certain job tasks, the RC may be asked to arrange for additional vocational rehabilitation services such as the aforementioned job site analysis to assist with clarification of these issues.
If the IW cannot be contacted and/or is not cooperative with additional services, the RC should inform the RS immediately. As noted above in paragraph 6 of this Part, the CE may need to determine whether the job offer is suitable and/or whether additional services are needed.
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9. No Job Offer from Previous Employer. If, after a reasonable amount of time (usually 30 days) and follow-up by the RC, the previous employer does not identify a position and there is no expectation that a job offer will be made, the RC should arrange and hold a final meeting with the previous employer, either in person or by telephone.
a. This meeting must take place prior to the 60th day in PPE status at the latest, but may take place sooner if there is no activity toward a job offer.
b. During the meeting, the RC should remind the employer of the following, which should have already been discussed in the initial contact:
(1) The IW's current functional capacities.
(2) Any opportunities the RC sees for modified or alternate duty possibilities.
(3) Vocational services and support which may be available to assist with the return to work if a specific job offer is made.
(4) The advantages of reemployment to the agency and the IW.
(5) The potential consequences to the agency if the IW needs to pursue employment elsewhere, which includes the expense to the agency of funding additional vocational services for the IW, as well as the agency's long-term responsibility to pay partial wage loss compensation if the IW obtains a lower paying job with a new employer (based on the loss of wage-earning capacity).
(6) The date on which the RC will consider the PPE process complete and move the case into the next phase of the rehabilitation process.
c. If there is no job offer or further expression of interest by the date noted in number 6 above, the RC should document it, contact and inform the RS, and discuss how to proceed. At this point, it is likely that the RS will instruct the RC to begin or continue plan development with services focusing on placement with a new employer. As always, any request for consideration of time extensions should be made promptly in writing, including justification.
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10. Time Frames. Unless otherwise authorized, RCs should provide the following services within the identified time frames during the PPE process:
a. Initial contact with the IW and previous employer should be completed within 10 (business) days from receipt of referral. At the time of initial contact, the RC should schedule the initial interview as soon as possible to ensure prompt initiation of rehabilitation services.
b. An initial determination as to whether a return to work with the previous employer is possible should be made within 30 (calendar) days. If not, the RC should contact the RS to discuss the status and whether to continue to pursue PPE and/or initiate additional vocational rehabilitation services. The RC should be prepared to provide recommendations for upcoming actions and vocational rehabilitation direction.
c. The PPE process should be completed within 60 (calendar days) unless a return to work occurs or an extension is authorized because a return to work is imminent.
d. If the IW returns to work with the previous employer 60 (additional calendar) days are allowed for follow-up.
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11. Allowed Professional Hours. Unless otherwise authorized, throughout the PPE process, RCs may use up to 20 professional hours for counseling, guidance and employer (and IW) contacts. Reasonable travel and clerical time may be charged in addition to the professional time.
During the 60 day post-placement period, RCs may use 10 professional hours.
Any requests for increase in professional hours or extension of time frames must be forwarded to RS in writing with justification as early as possible.
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12. Dual Tracking. Based on the circumstances of a case, the RC may sometimes be assigned to work in conjunction with a contracted DFEC Field Nurse (FN) to facilitate a return to work with the IW's previous employer. Consistent with DFEC's sense of urgency, this partnership may promote earlier intervention and quicker return to work.
a. Referrals. Dual tracking referrals may be appropriate when:
(1) The EA is having difficulty identifying a suitable position within the IW's work restrictions.
(2) Clarification of work tolerances and restrictions are needed.
(3) Assistance is needed to determine whether there are reasonable accommodations which could make a return to work possible.
(4) Assistance is needed to determine whether there are other jobs within that agency that the IW can perform.
b. Complementary roles. During dual tracking, the FN and RC have different, but complementary, roles.
The FN will focus on the medical aspects of the case in order to obtain stable, well-defined work restrictions and to coordinate any necessary medical intervention.
The RC will concentrate on vocational aspects of the case. The RC may also assist with facilitating medical rehabilitation interventions (FCE, work hardening), if needed, to clarify work tolerances and restrictions and will also assist with services as discussed previously (paragraph 5 of this Part) to determine whether a return to work in the same job or a different job within the agency is possible.
c. Lines of Communication. During dual tracking, the FN will be the designated point of contact with the physician and other medical personnel. Any questions that the RC may have regarding those issues should go through the FN. The RC, RS and FN (and the OWCP District Office Staff Nurse, if necessary) can decide on the best approach for working with the employer in order to facilitate streamlined communications and the best outcome. Unless otherwise authorized, the FN's involvement in the case will usually end once stable and well-defined work restrictions are established. RC interventions will continue as needed and as authorized by the RS.
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