COP Defined
•COP stands for Continuation of Pay & is the continuance of the employee's regular pay for a period not to exceed 45 calendar days of disability for a federal worker who is injured on the job. COP is the continuation of your regular pay check uninterrupted for 45 days rather than being paid for time off of work through OWCP.
For the rest of the podcast I will refer to Continuation of PAY as COP! This entire podcast 1 of a 2 part COP series is about being paid while off of work for the first 45 days rather than your employer wrongly using and not re-imbursing you the injured worker for your LEAVE!
•Applies to traumatic cases only
•Intent is to avoid interruption of pay while the claim is adjudicated.
•COP can be paid for the following:
•Disability – Total or Partial
•Lost elements of pay – (e.g. night differential, holiday pay)
•Lost time for medical appointments
•After entitlement to COP ends, the employee may apply for compensation or use leave
We will cover these 7 bulletin points in detail in this podcast and then we will cover other important factors of COP to include common scenarios of how to calculate and/or apply or qualify correctly for FACTORS that COP can be applied to….in the 2nd podcast in this two part series. You will want to share this podcast with everyone and will want to take notes and stop and pause to write some of this information down. This is dense material and is hard to fully understand. I will cover most of it and try to make it easier for you to understand. Lets dive in.
Sipping my coffee for some brain boosting energy to get through this… OK …SO..
COP Defined – and some interesting Historical context!
•On January 4, 1999, the Code of Federal Regulations Section 10.205(a)(3) was revised. The period in which a person must begin losing time from work in order to receive COP was changed from 90 days to 45 days, because at the time….the submission and adjudication of claims had improved. The 90-day grace period was no longer necessary to ensure the employee’s pay was continued. I worry that the OWCP current procedural changes are taking us backwards…as claims are being more readily denied and delayed in unprecedented numbers lately.
•On December 20, 2006, FECA was amended by Title IX of the Postal Service Accountability and Enhancement Act to establish a three-day waiting period before COP may be granted to employees of the United States Postal Service.
Agency Responsibilities- This is the part for YOUR employer! Your employer needs to …
•Provide Form CA-1 to employee.
•Notify of right to elect COP or AL/SL ( checked off COP box on the CA-1 form)
•Employee must begin losing time from work due to traumatic injury within 45 days of the injury to be eligible for COP
Now HERE is YOUR COP Responsibilities…so take notes
•File an approved OWCP Form CA-1 within 30 days of the injury. (CA-2, CA-2a, or CA-7 will be considered an approved form to fulfill the timely filing requirement but are only considered and not guaranteed to PAY COP!
•Present medical documentation supporting disability to EA within 10 days.
•Advise physician of the availability of LIMITED DUTY if applicable.
• YOU must RTW upon notification by attending physician of release to full or LIMITED DUTY.
• YOU the injured worker must provide a written report on Form CA-1 within 30 days of the injury
•Notify employee to submit medical evidence (aka CA Forms)to the employing agency within 10 days
•Termination of COP – when disability ends, 45 days expires, or employee returns to work (RTW)
•If Limited Duty (LIMITED DUTY) job offer made verbally, must be confirmed in writing ..always ask for a job offer, modified job offer or any change in your employment ..in writing.
OK …COP …Dates of Eligibility
•Unless the injury occurs before the beginning of the workday, time lost on date of injury is charged to administrative leave.
• YOUR employer keeps You the injured worker in a pay status on the date of injury (DOI) with no charge against COP.
•If You the injured worker stops work on the DOI, the first day of COP is the day after the DOI. Very important to remember!
•For non-postal employees, (listen up) the period to be charged to COP begins with the first day or shift of disability or medical treatment after the date of injury, provided that the absence began within 45 days after the injury.
•For U.S. Postal Service employees, (you guys listen up…it is different for Postal Workers) COP entitlement begins following a three-day waiting period, unless the period of disability exceeds 14 days.
Counting COP
•COP should be charged for weekends and holidays if the medical evidence shows the employee was disabled on the days in question - calendar days are counted, not just work days.
•For example, if the physician states that disability will continue only through Saturday for an employee who has Saturday and Sunday off, COP will be charged only through Saturday.
•If work stoppage occurs for only a portion of a day or shift, e.g. for a medical appointment, a full day of COP will be counted toward the 45-day entitlement even though the employee is not entitled to COP for the entire day or shift. ( very important to remember)
Counting COP---The MATH…this part gets tricky
•If the employee is absent for all or part of the remaining workday, the time loss should be covered by leave, LWOP, AWOL, etc., if work is available, since absence beyond the time needed to obtain the medical treatment cannot be charged to COP.
•If a partially disabled employee continues to work several hours a day, each day or partial day of absence from work is chargeable against the 45-day period.
Counting COP - COP and Leave
•An employee may use annual or sick leave to cover all or part of an absence due to injury.
•If an employee elects to use leave, each full or partial day for which leave is taken will be counted against the 45 days of entitlement to COP.
•While an employee may use COP intermittently along with sick or annual leave, entitlement is not extended beyond 45 days of combined absences.
Counting COP - COP and Leave—Listen very carefully here…this is a very common misunderstood and abused part of COP!
•Decision to use leave versus COP is not irrevocable. Employee who uses leave can later elect COP within one year of the leave usage or date the case is accepted by OWCP, whichever is later. Let me repeat… because this is a common problem that injured workers have experience where they do not realize they are entitle to be reimbursed back their leave after a period of time of …for example a disputed case that takes months or years to adjudicate to win!
•Compensation from OWCP does not begin to run until COP terminates and any use of leave ends.
•If OWCP denies a claim for COP, the amount paid will be charged to sick leave or annual leave at the option of you the injured federal worker or shall be deemed an overpayment.
Modified Duty Assignments during COP—another misused and misunderstood problem---know your rights and responsibilities related to modified duty offers.
• Employing agencies are expected to provide their injured employees with modified alternative-duty assignments during COP whenever possible, and you the federal workers are expected to accept such offers of work. You can not say no…to such offers…only your physician can refuse this offer on your behalf…if he feels it is unsafe!
•If You the injured worker accepts a modified position, COP is paid if You the injured worker are assigned to a job with a lower salary resulting in loss of income.
Modified Duty Assignments during COP -Refusals or no suitable scenarios
•Refusal of Job – If You the injured worker refuses or fails to respond to an offer of work, the Claims Examiner (CE) must determine the suitability. (typically the claims examiner will send your file to a 2nd opinion doctor for a paper review or for a requested medical assessment for return to work capabilities.
•If not suitable, the Claims Examiner advises your employer the reason why and instructs to pay COP retroactive to the date of termination.
•If suitable, then You the injured worker are given 30 days to submit the reason for refusal. (This requires an experienced OWCP approved medical provider to document why this is not appropriate or appropriate).
Modified Duty Assignments during COP
•If the You the injured worker respond and the refusal is found justified, the Claims Examiner instructs your employer to reinstate COP retroactive to the date of termination.
•If the refusal is not found to be reasonable or justified (or no response), a formal decision is issued, effective the date of your employers termination of COP. (Getting a headache yet?) I told you this stuff gets a little dense)
| Recurrences during COP—What to do when you suffer a recurrence of disability while back at regular or modified duty during the 45 day COP period.
| •If You the injured federal worker returns to work following a work stoppage without using all 45 days of COP and then suffer a recurrence of disability within the 45 days from the first RTW date, you are entitled to use the remaining 45 days. •So, understand that a period which begins before the 45-day deadline and continues beyond it, may be charged to COP as long as the period of time is uninterrupted. •If the recurrence begins later than 45 days after the first RTW, your employer doe does not have to pay COP even though some days of entitlement remain unused.( You can tell all of these rules are written by lawyers) | Recurrences during COP
| •To clarify, if the 45-day entitlement in this example has been exhausted, or the recurrence begins more than 45 days after the employee first RTW, your employer is not required to pay COP. •The employee should claim compensation for wage loss on Form CA-7. (we covered CA-7 forms in previous Podcasts).
| Controverting COP - Nine Reasons
| An Employer agency’s has the right to objection to paying COP for one of nine reasons provided by OWCP regulation and this right to object …is called “controversion”. COP may be controverted only if one of the following 9 scenarios applies: 1. Disability is a result of occupational disease or illness (CA-2 or CA-2a) 2. Claimant’s status as an employee is defined by 5 USC 8101 (1) (B) or (E) (volunteers) 3. Employee is neither a citizen nor resident of the US or Canada 4. Injury occurred off Employing Agency’s premises and the employee was not engaged in official “off premises” duties 5. The injury resulted from the employee's willful misconduct, the employee's intention to bring about the injury or death of himself or herself or of another person, or the employee's intoxication by alcohol or illegal drugs 6. Injury not reported on a form approved by OWCP within 30 days following the injury 7. Work stoppage first occurred more than 45 days after the injury 8. Employee reported injury after employment was terminated 9. Employee is enrolled in Civil Air Patrol, Peace Corps, or other group covered by special Legislation | Paying COP--- its your money…so understand this part
| •COP is not considered compensation •COP IS Subject to usual deductions from pay, such as income tax, retirement, allotments, etc. •The pay rate for COP purposes is equal to your regular weekly check pay rate •COP Excludes overtime pay, but includes other applicable extra pay except to the extent prohibited by law •Changes in pay in which would have otherwise occurred during the 45-day period are to be reflected (i.e., promotion, demotion, step increases) | Paying COP – Pay Rate for regular and irregular work schedules
| •Regular Work Schedules: For a full-time or part-time worker, whether permanent or temporary, who works the same number of hours per week, the weekly pay rate equals the number of hours regularly worked each week times the hourly pay rate on the date of injury, excluding overtime. •Irregular Work Schedules: For a part-time worker, whether permanent or temporary, who does not work the same number of hours per week, the weekly pay rate equals the average weekly earnings for the year prior to the date of injury, excluding overtime. | Paying COP – Pay Rate for intermittent and/or seasonal workers
| Intermittent and Seasonal Workers: •For an intermittent or part-time worker, whether permanent or temporary, who does not work each week of the year (or the period of appointment), the weekly pay rate equals the average of the employee’s earnings in Federal employment within one year prior to the date of injury. •The pay rate is computed on the basis of the total earnings divided by the number of weeks worked. Partial weeks worked are counted as whole weeks. Increments of Pay: Night or shift differential, holiday or other extra premium pay should be included, but overtime pay may not be considered. | Paying COP – Pay Rate CHANGES
| Changes in Pay: •Changes in pay due to within-grade increases, promotions, demotions, terminations of temporary details, etc., which would have occurred but for the injury are included in COP since COP represents salary and not compensation. For example…If you were due to get a raise during your COP…the raise would be honored during your time off work for the 45 day COP period. •So you see if you move into a higher-paying job during the COP period you are entitled to receive COP at the higher rate of pay. •Where the weekly COP rate is based on the employee’s average weekly earnings during the year prior to the date of injury, the COP rate should be changed by the same percentage as the change in hourly pay or salary. ( no you know why medical providers do not want to work in this field…it is a pain in the tuccus! 😊) | Lastly, Paying COP – Pay Rate
| Lost Elements in Pay: •An element is sometimes lost due to the effects of the injury. For instance, a night shift worker may be reassigned to the day shift to perform LIMITED DUTY, and thus lose night differential. In such instances, COP should be granted for the lost element of pay. Each day for which COP is granted to cover a lost element of pay will count as one full day of COP. •EA is not required to include in COP elements of pay that EA is prohibited to pay by law. Well that does it for this episode of Federal Workers Comp Coffee break Podcast. I want to thank you for listening and want to remind you to share this podcast with other federal workers you think would benefit from this information. Also if you need an approved medical provider for your DOL -OWCP Or Longshore case in Florida you can find me in Tampa at two different locations and in Jacksonville. To make a consult with me to discuss your case or if you know someone if Florida who is recently injured you can call the clinic at 813-877-6900. Also if you are in another state and you want me to assist you with claim questions or assistance for your doctor you can email me at fedcompconsultans!protonmail.com. I do this for free as a service to you. I know that I can not be everywhere…and sometimes YOU need to teach this stuff to YOUR doctor. OK…I need to warm up this coffee and get going. As usual I want to thank all of you who put on that uniform, that badge, deliver that mail, take care of our veterans and make this government run… a big thank you. I do this for free just for you… We could not do this without all of the work all of you out there do…so a big thank you. And remember if you have an injured federal claim and you need assistance…. I am here to help!. See you next time. Off to get my next cup of coffee for part two of our “COP” PODCAST!