AN INTRODUCTION TO CONTROVERSIONS, DISPUTES, AND LWEC S PRESENTED BY: EILEEN PADAR

Transcription

1 AN INTRODUCTION TO CONTROVERSIONS, DISPUTES, AND LWEC S PRESENTED BY: EILEEN PADAR

2 TOPICS TO BE COVERED: Agency s Role in Adjudication - Assistance - Guardianship Controversions and Disputes Post Adjudication - Return to Work Effort - Administrative Procedures for Limited Modified Duty - Job Offer Loss of Wage Earning Capacity (LWEC) - What is It? - Who Is Eligible? - When Is One Appropriate? - Agency s Role in LWEC s

3 AGENCY S ROLE IN ADJUDICATION DUAL ROLE 1. Assist employees in receiving benefits. 2. Guard the Public Purse so employees do not receive more benefits than they are entitled to.

4 AGENCY S ROLE IN ADJUDICATION ASSISTANCE The agency is there to help employees receive all the benefits they are entitled to as federal employees under the Federal Employees Compensation Act (FECA). Those benefits include: - Continuation of Pay - Medical Benefits - Compensation for Wage Loss - Compensation for Loss of Wage Earning Capacity - Schedule Awards - Vocational Rehabilitation Services

5 AGENCY S ROLE IN ADJUDICATION (CONT D) ASSISTANCE (CONT D) Review claim forms for completeness Explain to employee what information is needed on the claim forms Timely filing of claim forms with OWCP CA-1 10 work days from date agency received form CA-2 10 work days from date agency received form CA-7 5 work days from date agency received form Interpretation of OWCP correspondence Impartial advice, if asked, on appeal right options

6 AGENCY S ROLE IN ADJUDICATION (CONT D) ASSISTANCE (CONT D) In traumatic injury cases: - authorize immediate medical care if needed with the CA-16, Authorization for Examination and/or Treatment form - advise employee of right to elect COP and the need to submit medical evidence within 10 calendar days In occupational disease cases: - employee is not eligible for COP; advise employee of right to use sick/annual leave or LWOP while claim is adjudicated - form CA-16 is not given to an employee

7 AGENCY S ROLE IN ADJUDICATION (CONT D) GUARDIANSHIP Provide OWCP with all the relevant facts Filling out all forms (particularly CA-7s) very carefully and completely Challenging all claims you have good reason to believe are invalid (OWCP accepts employee s statement as factual unless agency challenges it.) Monitoring medical evidence and returning partially disabled employees to light duty as soon as they are able to return to work, even during the COP period Managing compensation costs: Submit claim forms early and timely The sooner claims are submitted, the sooner employees receive medical care and return to work

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9 CONTROVERSIONS If you do not believe an employee meets the requirements for entitlement to COP, controvert paying it. There are nine (9) reasons for controverting COP. If one of these reasons applies, COP should not be paid. Advise employee s/he is not eligible to receive it.

10 CONTROVERSIONS (CONT D) Nine Reasons for Not Paying COP 1) It s not a traumatic injury. 2) CA-1 claim form was not submitted within 30 calendar days after the date of injury (DOI). 3) The first time the employee lost time from work was more than 45 calendar days after the DOI. 4) The injury was first reported after his/her employment ended. 5) The injury occurred off the agency s premises and the employee was not involved in work-related duties. 6) The employee was injured as a result of willful misconduct, intoxication by alcohol or illegal drugs, or intent to injure self or others. 7) The individual is a volunteer, contractor, or consultant. 8) The individual is covered by special legislation. (e.g., Peace Corps, VISTA, Job Corps) 9) The individual is not a citizen nor resident of the U.S. or Canada.

11 CONTROVERSIONS(CONT D) Controverting COP is separate from disputing the merits of the claim itself. In a traumatic injury case, you may do both controvert COP and dispute the claim. EXAMPLES COP would be controverted because the CA-1 form was not filed within 30 days of the date of injury. OR COP would be controverted because employee was injured off the agency s premises during the lunch break A CA-1 would be disputed because employee was involved in a non-work-related automobile accident just prior to filing the claim. You believe the medical condition claimed is not work-related. OR A CA-1 would be disputed because employee was not at work on the day s/he claimed the work injury occurred.

12 CONTROVERSIONS(CONT D) In an occupational disease case, the employee is not eligible for COP, so you can only dispute the claim if you believe it is not valid. EXAMPLES A CA-2 would be disputed because employee did not meet the 3 years filing deadline as required under the FECA. A CA-2 would be disputed because medical condition claimed (herniated disk) is part of another case that was accepted by OWCP.

13 DISPUTES DISPUTING THE CLAIM The agency s actions to dispute the validity of a claim may be based on factual and/or medical information: Submitted by the employee and/or Obtained by the agency as the result of an investigation The agency can dispute a claim when the CA-1 or CA-2 form is submitted to OWCP or later in response to an OWCP inquiry for information. If you receive a letter from OWCP asking you to comment on allegations made by the employee (e.g., what a supervisor said or deadlines employee had to meet), and you do not respond, OWCP will accept the employee s allegations as factual.

14 DISPUTES (CONT D) You should challenge all claims where you dispute the facts as stated by the employee. Submit a statement to OWCP explaining why you disagree and, if necessary, submit your evidence to support your dispute.

15 DISPUTES (CONT D) SUBMIT OBJECTIVE - FACTUAL AND MEDICAL EVIDENCE SUCH AS: - Time cards and sheets - Agency s Investigation Report - Credible Witness statements - Pictures - Police Report - Air Quality Test Reports - Medical Evidence

16 DISPUTES (CONT D) STRESS CLAIMS In stress claims you must submit a statement to OWCP acknowledging whether you agree or disagree with the allegations made by the employee. OWCP will give you the opportunity to respond to the employee s allegations. If you do not respond, OWCP will accept the employee s allegations as factual. This may ultimately lead to a stress claim, that you believe is invalid, being accepted. Although, not impossible, it is difficult to have an acceptance rescinded by OWCP. It is in the agency s best interests to respond timely to every request made by OWCP for information. If you need more time to prepare a response, contact the claims examiner and request an extension.

17 DISPUTES KEYS TO SUCCESS Well Trained Supervisors Consult Occupational Health Physician, if available Investigate When You Have A Healthy Suspicion Do Not Speculate Gather All Facts in Case Send All Facts to OWCP Dispute when appropriate. Lack of dispute of an issue by the agency may be interpreted by OWCP as the agency s acceptance of the facts as submitted by the employee Know FECA Regulations CFR Use FECA Procedure Manual

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19 POST-ADJUDICATION If your employee s claim was accepted by OWCP and s/he has not returned to work, how does s/he get paid and how do the medical bills get paid?

20 POST-ADJUDICATION WAGE LOSS Make sure CA-7 claims for compensation are properly completed and timely filed with OWCP so that employee can be compensated for wage loss. MEDICAL BILLS Medical bills are processed through a contractor, ACS. Specific information regarding the status on individual bills can be obtained at the ACS website on the INTERNET. (owcp.dol.acs-inc.com)

21 POST-ADJUDICATION (CONT D) ADMINISTRATIVE PROCEDURES FOR LIMITED MODIFIED DUTY Maintain contact with your employee at reasonable intervals for updated medical information regarding the injury. For medical reports, with current work restrictions, you can: 1) write to attending physician) {20 CFR }; 2) contact the OWCP nurse (if one was assigned to case); 3) contact the OWCP claims examiner Explain to them that you want to review medical reports so that you can prepare a job offer to determine if claimant is medically able to work.

22 POST-ADJUDICATION (CONT D) ADMINISTRATIVE PROCEDURES FOR LIMITED MODIFIED DUTY (CONT D) Obtain work restrictions indicating some work capacity Try to find appropriate limited duty that is consistent with the work restrictions Return-to-work conferences are helpful in facilitating a successful return. Cooperation among the operational branches, HR, and workers compensation is crucial. The best way to get an employee working again and reducing agency costs is by accommodating the employee making a job offer. Only if the medical evidence indicates that the condition precludes any work, should you be prepared to follow the case as a long-term disability.

23 JOB OFFERS:

24 JOB OFFERS (CONT D) Making the Job Offer It must be offered in writing and must be based on employee s work restrictions It must include: 1) description of job duties to be performed 2) the physical requirements of the job 3) the work schedule 4) organizational and geographical location of the job 5) the date on which job will be available 6) the date by which response is required 7) grade, step, and salary of job

25 JOB OFFERS(CONT D) ACCEPTING/REJECTING JOB OFFERS If a job offer is made and the employee accepts the offered job, there is no need to contact OWCP to request a job suitability determination. OWCP will only make a suitability finding if the employee declines the job or there is a strong sense (usually from prior history) that the employee will resist or decline the job offer.

26 LOSS OF WAGE EARNING CAPACITY Most employees will return to their regular jobs, but what happens if you have another employee who is returning to light duty work at less money than s/he was earning on the date of injury?

27 LOSS OF WAGE EARNING CAPACITY (LWEC) WHAT IS IT? If an employee is medically restricted from working the DOI job and returns to work earning less than the current pay for the date of injury job (same grade/step), OWCP compensates the employee for the loss. This is known as a Loss of Wage Earning Capacity (LWEC) determination. The intent of LWECs is to bring an employee s earning capacity as close as possible to parity with the current pay for the grade and step held on date of injury.

28 LWEC S (CONT D) WHO IS ELIGIBLE? Only those employees who have not been released to the DOI job because they continue to have residuals of their work injury can be considered for the LWEC.

29 LWEC S (CONT D) EXAMPLES OF WHEN IS APPROPRIATE TO DO AN LWEC? 1) A partially disabled employee returns to work earning less than the current pay for date of injury job because: - base pay of new job is less - new job does not include night differential; Sunday Premium,etc - fewer hours scheduled in new job 2) Employee is on the periodic roll through OWCP based on total disability for work, but his/her annual CA-1032 form shows s/he has been working earning less than current salary for DOI job. 3) A partially disabled employee participated in vocational rehabilitation through OWCP, and they were unable to get a job, but they are medically and vocationally able to work.

30 LWEC S (CONT D) AGENCY S ROLE IN LWEC S 1) Call OWCP and advise claims examiner or customer service representative that employee is back at work. This will avoid an overpayment at OWCP. 2) Advise OWCP that employee accepted a new job paying less than the job held when injured. 3) Submit CA-7 indicating reason(s) for loss of wages.

31 LWEC S (CONT D) THE SHADRICK FORMULA In order for OWCP to do the calculation known as the Shadrick Formula, so that the employee can be compensated for their loss in wage earning capacity, you will be asked by OWCP to provide: 1) Grade/step for job employee held on date of injury 2) Current salary for that grade/step 3) Employee s actual earnings

32 LWEC S (CONT D) THE FINAL WORD ON THE LWEC Once an LWEC has been put in place by OWCP (e.g.,a formal decision issued), generally it does not change. But it can, if one of these conditions is met: 1) There was an error in the LWEC decision 2) Employee s accepted condition changes 3) Employee has been vocationally rehabilitated

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