Federal Workers Compensation Coffee Break
Federal Workers Compensation Coffee Break
Episode 45 Federal Workers Compensation Coffee Break Podcast- OWCP Lost Work Earning Capacity (LWEC) Denials
Federal Workers Compensation Coffee Break Podcast is an educational and informative training on how to navigate the DOL -OWCP claims filing process for all types of injured US government and federal workers. The podcaster has 28 years in assisting with federal workers compensation as a consultant and trainer. The podcast is free and is educational. If you need help with anything related to a federal workers compensation claim...help is just a cup of coffee away.
Loss of Wage Earning Capacity (LWEC). The loss of wage-earning capacity determination performed pursuant to 5 U.S.C. 8115 provides that an injured worker will not be penalized for returning to a lower-paying job because of a disabling condition. It also permits the adjustment of compensation to reflect partial rather than total disability, if the requirements of the law are strictly met. So how does wage loss compensation get denied based on a LWEC decision by a OWCP claims examiner?
Some government employees who have had their medically suitable job withdrawn by the Employee agency as a result of the National Reassessment Process (NRP) are being denied wage loss compensation by OWCP because of a previous LWEC decision. How does this happen?
OWCP DFEC Procedure Manual lists procedures that establish that after an employee with an accepted claim has returned to work for at least 60 days, (you guys have heard me call this the “60 day rule” in previous podcasts. The claims examiner has the right to determine if the salary that the injured worker/claimant is being paid, fairly and reasonably represents that employee’s actual wage earning capacity.
The Employees’ Compensation Appeals Board (ECAB) has ruled repeatedly that once a formal LWEC has been issued, it can only be changed in three circumstances:
· The original LWEC rating was in error;
· The claimant’s medical condition has changed; or
· The claimant has been vocationally rehabilitated, i.e. is working in a new job which
pays at least 25% more than the current pay of the job he or she was working
when the original LWEC was performed.
ECAB decisions that that support your appeal of a odd-lot job offer withdraw and/or LWEC 0% decision:
Baggett, 50 ECAB 560; Wade, 37 ECAB 556 (1986); Rowe, Docket No.88-1179 (issued September 27, 1988); and Moss, Docket No. 89-846 (issued July 26, 1989), Woolever, 29 ECAB 114, Emory, 47 ECAB 371, and in Weisman, 50 ECAB 418
For more information please read the attached transcript!
Dr. Taylor’s contact information is: https://fedcompconsultants@protonmail.com If you need a provider or assistance with a DOL claim in Tampa, Pensacola or Jacksonville Florida you can make an appointment to see him and the other providers at the clinic at M & R Medical & Therapy Center. To make a consult with Dr. Taylor to discuss your case or if you know someone if Florida who is recently injured you can call the clinic at 813-877-6900 or go to our website at https://mrtherapycenter.com/
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When OWCP Denies Compensation Based On a Previous Lost Wage Earning Capacity (LWEC) Determination
Some government employees who have had their medically suitable job withdrawn by the Employee agency as a result of the National Reassessment Process (NRP) are being denied wage loss compensation by OWCP because of a previous LWEC decision. How does this happen?
First let’s review LWEC from our previous podcast:
Loss of Wage Earning Capacity (LWEC). The loss of wage-earning capacity determination performed pursuant to 5 U.S.C. 8115 provides that an injured worker will not be penalized for returning to a lower-paying job because of a disabling condition. It also permits the adjustment of compensation to reflect partial rather than total disability, if the requirements of the law are strictly met.
So how does wage loss compensation get denied based on a LWEC decision by a OWCP claims examiner?
Here is how it happens:
OWCP DFEC Procedure Manual lists procedures that establish that after an employee with an accepted claim has returned to work for at least 60 days, (you guys have heard me call this the “60 day rule” in previous podcasts. The claims examiner has the right to determine if the salary that the injured worker/claimant is being paid, fairly and reasonably represents that employee’s actual wage earning capacity. If the Claims Examiner determines that the employee’s pay does represent his or her actual ability to earn a wage, then a formal LWEC decision is issued.
When injured Employee agency employees return to full time work following their injuries, whether returning without restrictions, or to a limited duty or Vocational rehabilitation job (OWCP calls such medically restricted jobs “light duty” or “modified duty”), the Employee agency pays them the salary that they would have acquired had there been no injury or disability (See Chapter 546.143.e. of theELM).
Therefore, they have been restored to their normal wage and have not lost any capacity to earn a wage. In such cases the CLAIMS EXAMINER will normally determine that there is no loss of wage earning capacity and will issue a formal decision indicating that the employee has a 0% LWEC.
The Employees’ Compensation Appeals Board (ECAB) has ruled repeatedly that once a formal LWEC has been issued, it can only be changed in ONLY in three circumstances: So LISTEN UP & Pay CLOSE ATTENTION!
· The original LWEC rating was in error;
· The claimant’s medical condition has changed; or
· The claimant has been vocationally rehabilitated, i.e. is working in a new job which pays at least 25% more than the current pay of the job he or she was working when the original LWEC was performed.
So, as a result of these policies this is what can happen. An employee returns to work following a disabling workplace injury and is working in a modified job at his or her regular salary. After a period of time the employee receives a 0% LWEC as described above. Then, as a result of the National Reassessment Process the modified job is withdrawn. Because of the loss of the medically suitable assignment, this employee has once again become disabled, and files a CA-2a, Notice of Recurrence and a CA-7, Claim for Compensation.
A FECA Bulletin (No.09-05) was issued by the Director for Federal Employees’ Compensation on August 18, 2009, with instructions for CLAIMS EXAMINERs regarding the processing of these types of claims. The instructions state that if a formal LWEC has previously been issued, then the CLAIMS EXAMINER must develop the evidence to determine whether modification of that LWEC is appropriate.
In these circumstances, before making a formal decision, the CLAIMS EXAMINER would normally send a LWEC modification development letter to the claimant (and to the Employee agency) asking if any of the three circumstances that could result in the modification of the LWEC are present. The claimant would then have an opportunity to respond and request that the LWEC be modified.
In most National Reassessment Process cases the claimant’s request for modification is not going to be based on a change in the medical condition, but would be based on the argument that the original LWEC rating was done in error. For examples of arguments to make in support of a request for modification, please see where I have placed an example template in the podcast Transcript with the headline of “Guide for Requesting Modification of a LWEC Determination”
But for the listeners of this podcast let me give you some highlights of how to argue that LWEC has been denied in-appropriately: The most common retaliatory light duty offer to financially punish you as an injured worker is when the employee agency creates an ODD-LOT JOB. An odd-lot job is a limited (light) duty job to which you are assigned the job was specifically designed for you particular medical needs, and was not a regular position of a type readily available to other Employee agency employees. It was created solely for you and your individual restrictions and accommodations and would not exist except for the Employee agency’s obligation to provide you with medically suitable employment. It was never available for bid or application by any other employee, and would cease to exist once you left it or the position is withdrawn by the employee agency. So, here is some case law and explanations to remember to fight back and win if this happens to you.
You response letter should include the following, I believe that the facts establish that original LWEC determination was in error because it was based on an odd-lot or make-shift job.
There are ECAB legal decisions that have been established in cases such as Baggett, 50 ECAB 560; Wade, 37 ECAB 556 (1986); Rowe, Docket No.88-1179 (issued September 27, 1988); and Moss, Docket No. 89-846 (issued July 26, 1989), that wage earning capacity is a measure of the employee’s ability to earn wages in the open labor market under normal employment conditions.
ECAB decisions further established in Woolever, 29 ECAB 114, that an odd-lot or make-shift job is one which is designed for an employee’s particular needs, and, therefore, it does not constitute an identifiable, regular position of a type readily available on the general labor market.
ECAB decisions further supported this odd-lot job offer in Emory, 47 ECAB 371, and in Weisman, 50 ECAB 418, ECAB reiterates the principle that actual earnings do not fairly and reasonably represent a claimant’s wage earning capacity if those earnings are derived from a make-shift position designed for the claimant’s particular needs.
In my opinion, applying these ECAB rulings to the odd-lot job that I was performing when the LWEC determination was made will establish that this job was an odd- lot job. This is a clear legal error.
Whether there is a development letter sent to YOU or not, if the CLAIMS EXAMINER ultimately issues a formal decision denying modification of the previous LWEC determination, YOU would then have to use the OWCP appeal process in an effort to overturn the Claims Examiner’s decision. Your appeal rights would accompany the formal decision. For suggestions regarding an appeal of such a denial, please see the where I have placed an example template in the podcast Transcript with the headline of “Guide for Appealing a Formal Decision Denying Modification.”
But for the listeners of this podcast let me give you some highlights of how to argue an appeal of a formal denial decision of a previous LWEC decision.
It would start out like this…
As you know, the Employees’ Compensation Appeals Board (ECAB) has ruled that once a formal LWEC decision has been issued, a request for modification must establish that one of three circumstances has occurred: that the original rating was in error, that the injury-related condition has worsened, or that the claimant has been vocationally rehabilitated. Then list the ECAB decisions that I just previously listed:
Baggett, 50 ECAB 560; Wade, 37 ECAB 556 (1986); Rowe, Docket No.88-1179 (issued September 27, 1988); and Moss, Docket No. 89-846 (issued July 26, 1989), Woolever, 29 ECAB 114, Emory, 47 ECAB 371, and in Weisman, 50 ECAB 418
The limited (light) duty job to which I was assigned was designed for my particular medical needs, and was not a regular position of a type readily available to other Employee agency employees. It was created solely for me and would not exist except for the Employee agency’s obligation to provide me with medically suitable employment. It was never available for bid or application by any other employee, and would cease to exist once I left it.
The reason that this job was not available to other employees in the Employee agency’s general labor market is because it was not an actual, bona fide position. It was not a job that was “funded” or “classified”, and therefore was not part of the authorized employment complement of the Employee agency. It was an ad hoc job consisting of various sub-duties that was created for me, based on my medical restrictions.
Therefore, it was an odd- lot or make-shift job as defined by the above referenced ECAB decisions, and any LWEC determination based on this assignment would be in error and should be modified.
The cited ECAB rulings regarding odd-lot or make-shift jobs are consistent with the injury compensation principles discussed in Larson’s Workers’ Compensation Laws. In Volume 10, Section 57.51, Larson specifically addresses the “Odd-lot Doctrine” and discusses various compensation law rulings relating to this subject. One of the principles that emerges from Larson’s review that is particularly relevant to the circumstances arising under Employee agency’s National Reassessment Process is that a job would also be considered to be odd-lot if it is not regularly and continuously available under normal employment conditions.
You then would say that YOU know that YOU did not lose my limited duty job as a result of a lay off or REDUCTION IN WORKFORCE since the Employee agency has neither invoked nor complied with their contractual obligations as set forth in our collective bargaining agreement at Article 6, No Layoffs or Reduction in Force. I believe that the facts establish that original LWEC determination was in error because it was based on an odd-lot or make-shift job.
It is my opinion that the most appropriate appeal option would be a “Review of the Written Record”. Be careful
of the time limits for this appeal. It must be made within 30 days from the date of the decision.
Ok lets go over the formal explanation in the OWCP procedure manual and some examples of what OWCP says about a few LWEC scenarios.
First: Return to modified work, with or without wage loss.
(1) Re-employment with no Loss of Wage Earning Capacity (LWEC).
(a) EXAMPLE: If the you return to a new position or a modified version of the date of injury position with the previous employer at a pay rate commensurate with the current pay for the job held when injured, the claimant has no loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days, the CLAIMS EXAMINER should review the case to determine whether the medical evidence establishes permanent restrictions and whether the position fairly and reasonably represents the claimant's wage earning capacity. If so, the CLAIMS EXAMINER should prepare a formal decision making this finding. So if you go back to your original work category or a work category considered substantially equivalent for 60 days you would hav no loss of wage earning capacity to be considered.
(b) Example 2: If the you return to work with a new employer ( VOCATIONAL REHABILITATION Placement) at pay rate commensurate with the current pay for the job held when injured, the claimant has no loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days and the medical evidence establishes permanent restrictions, the CLAIMS EXAMINER should prepare a formal decision addressing whether the earnings fairly and reasonably represent the claimant's wage earning capacity.
(2) NOW LET GO OVER +Re-employment with LWEC.
(a) EXAMPLE 1: If you return to a new position or a modified version of the your original work position your were performing at the time of your injury with the previous employer and are earning less than the current pay rate of the job held when injured, the claimant has sustained a loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days, the CLAIMS EXAMINER should review the case to determine whether the medical evidence establishes permanent restrictions and whether the position fairly and reasonably represents the claimant's wage earning capacity. If so, the CLAIMS EXAMINER should prepare a formal decision making this finding. See OWCP Procedure Manual Chapter 2-0814. If the position does not fairly and reasonably represent the claimant's wage earning capacity, no decision can be issued.
(b) EXAMPLE 2: If you return to work with a new employer and are earning less than the current pay rate of the job held when injured, you as the injured worker has sustained a loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days and the medical evidence establishes permanent restrictions, the CLAIMS EXAMINER should prepare a formal decision addressing whether the earnings fairly and reasonably represent the claimant's wage earning capacity.
d. EXAMPLE 3: Determination of LWEC without actual job placement. This type of decision can be issued after the OWCP has made reasonable efforts to return the claimant to work and has advised the claimant of his or her rights and responsibilities. See OWCP Procedure Manual Chapters 2-0813, 2-0814, and 2-1400.
In these cases, the claimant has been notified that the OWCP will provide vocational rehabilitation assistance leading to re-employment. The claimant is able to return to work and the file contains documentation that establishes appropriate work is reasonably available in the local labor market; therefore, benefits are adjusted to reflect any loss in wage earning capacity. The OWCP issues a decision based on the selected jobs, regardless of actual employment status. This is a common occurrence that I want to explain. For example, your doctor has you on Temporary Total Disability and a second opinion doctor is requested and he says you can do light duty and recommends Vocational Rehabilitation. You are required to either go back to work to a modified duty offer that the employee agency creates that did not previously exist in order to accommodate your restrictions or be required to attend vocational rehab and the voc rehab counselor finds some type of work that fits your restrictions. You are then placed in a newly created light duty job to fit your restrictions by the employee agency in a limited duty job offer. If the agency then pulls the newly created job after 60 days and LWEC is also denied. It would be inequitable and inconsistent with the rules and provisions of the FECA act and OWCP procedure manual that apply to injury compensation if the Employee agency was permitted to offer an employee medically suitable employment, wait 60 days for the formal LWEC determination of 0% loss of earning capacity, and then tell the injured employee that the job on which the LWEC was performed is being withdrawn because the work is no longer “necessary”. The injured employee files a CA-7, but because of the 0% LWEC, OWCP denies wage loss compensation. The Employee agency has now neatly shed the financial burden of compensation costs for these employees. This horrible tactic is being utilized to hurt injured workers who do not return back to their original job all over the country. Most treating doctors, OWCP clinics and injured workers do not know how to fight back and win, regarding the abuse of this tactic. Please share this podcast with any and everyone you think this tactic has been used on. This type of free advise and expertise is impossible to find anywhere else but here.
In this instance, the CLAIMS EXAMINER will prepare a pre-reduction notice, addressing the claimant's loss of wage earning capacity based on a suitable position for which the claimant received training and/or placement efforts. After the notice period ends (usually the passing of 60 days), a formal decision establishing the claimant's wage earning capacity will be issued, taking into account any evidence or arguments submitted during the notice period and compensation reduced or terminated as of the date of the final decision.
A Suggested Guide for Requesting Modification of a Previous LWEC
Dear Sirs:
My name is ( ), my address is ( ), and my OWCP file number is ( ).
I am requesting that my Lost Wage Earning Capacity (LWEC) determination be modified.
As you know, the Employees’ Compensation Appeals Board (ECAB) has ruled that once a formal LWEC decision has been issued, a request for modification must establish that one of three circumstances has occurred: that the original rating was in error, that the injury-related condition has worsened, or that the claimant has been vocationally rehabilitated.
I believe that the facts establish that original LWEC determination was in error because it was based on an odd-lot or make-shift job.
The ECAB has established in cases such as Baggett, 50 ECAB 560; Wade, 37 ECAB 556 (1986); Rowe, Docket No.88-1179 (issued September 27,
1988); and Moss, Docket No. 89-846 (issued July 26, 1989), that wage earning capacity is a measure of the employee’s ability to earn wages in the open labor market under normal employment conditions.
They further established in Woolever, 29 ECAB 114, that an odd-lot or make-shift job is one which is designed for an employee’s particular needs, and, therefore, it does not constitute an identifiable, regular position of a type readily available on the general labor market.
In Emory, 47 ECAB 371, and in Weisman, 50 ECAB 418, ECAB reiterates the principle that actual earnings do not fairly and reasonably represent a claimant’s wage earning capacity if those earnings are derived from a make-shift position designed for the claimant’s particular needs.
In my opinion, applying these rulings to the job that I was performing when the LWEC determination was made will establish that this job was an odd- lot job.
The limited (light) duty job to which I was assigned was designed for my particular medical needs, and was not a regular position of a type readily available to other Employee agency employees. It was created solely for me and would not exist except for the Employee agency’s obligation to provide me with medically suitable employment. It was never available for bid or application by any other employee, and would cease to exist once I left it.
The reason that this job was not available to other employees in the Employee agency’s general labor market is because it was not an actual, bona fide position. It was not a job that was “funded” or “classified”, and therefore was not part of the authorized employment complement of the Employee agency. It was an ad hoc job consisting of various sub-duties that was created for me, based on my medical restrictions.
Therefore, it was an odd- lot or make-shift job as defined by the above referenced ECAB decisions, and any LWEC determination based on this assignment would be in error and should be modified.
The cited ECAB rulings regarding odd-lot or make-shift jobs are consistent with the injury compensation principles discussed in Larson’s Workers’ Compensation Laws. In Volume 10, Section 57.51, Larson specifically addresses the “Odd-lot Doctrine” and discusses various compensation law rulings relating to this subject. One of the principles that emerges from Larson’s review that is particularly relevant to the circumstances arising under Employee agency’s NRP is that a job would also be considered to be odd-lot if it is not regularly and continuously available under normal employment conditions.
I know that I did not lose my limited duty job as a result of a lay off or REDUCTION IN WORKFORCE since the Employee agency has neither invoked nor complied with their contractual obligations as set forth in our collective bargaining agreement at
Article 6, No Layoffs or Reduction in Force. Furthermore, the enclosed “Employee Leave Information Letter, Complete Day/Partial Day” given to me by the Employee agency simply states that my work is no longer “necessary”. Not only does this statement underline the make-shift nature of the work that I was performing, but, obviously, demonstrates that the work on which my LWEC was based was not regular and continuous.
The principle underlying the requirement that employment in a limited duty job must remain regular and continuous (baring misconduct or lay off) is one of equity. It would be inequitable and inconsistent with the general principles of injury compensation if the Employee agency was permitted to offer an employee medically suitable employment, wait 60 days for the formal LWEC determination of 0% loss of earning capacity, and then tell the injured employee that the job on which the LWEC was performed is being withdrawn because the work is no longer “necessary”. The injured employee files a CA-7, but because of the 0% LWEC, OWCP denies wage loss compensation. The Employee agency has now neatly shed the financial burden of compensation costs for these employees.
Therefore, for all of the reasons stated above, I am requesting that the previous LWEC be modified, and that I be approved for the payment of wage loss compensation.
Thank you,
(signed)
A Suggested Guide for Appealing an OWCP Decision Denying Modification of a Previous LWEC
Dear Sirs:
My name is ( ), my address is ( ), and my OWCP file number is ( ).
I am appealing the OWCP decision dated ( ) which denied modification of my previous Lost Wage Earning Capacity (LWEC) determination.
As you know, the Employees’ Compensation Appeals Board (ECAB) has ruled that once a formal LWEC decision has been issued, a request for modification must establish that one of three circumstances has occurred: that the original rating was in error, that the injury-related condition has worsened, or that the claimant has been vocationally rehabilitated.
I believe that the facts establish that original LWEC determination was in error because it was based on an odd-lot or make-shift job.
The ECAB has established in cases such as Baggett, 50 ECAB 560; Wade, 37 ECAB 556 (1986); Rowe, Docket No.88-1179 (issued September 27,
1988); and Moss, Docket No. 89-846 (issued July 26, 1989), that wage earning capacity is a measure of the employee’s ability to earn wages in the open labor market under normal employment conditions.
They further established in Woolever, 29 ECAB 114, that an odd-lot or make-shift job is one which is designed for an employee’s particular needs, and, therefore, it does not constitute an identifiable, regular position of a type readily available on the general labor market.
In Emory, 47 ECAB 371, and in Weisman, 50 ECAB 418, ECAB reiterates the principle that actual earnings do not fairly and reasonably represent a claimant’s wage earning capacity if those earnings are derived from a make-shift position designed for the claimant’s particular needs.
These rulings apply to the job that I was performing when the LWEC determination was made. The limited (light) duty job to which I was assigned was designed for my particular medical needs, and was not a regular position of a type readily available to other Employee agency employees. It was created solely for me and would not exist except for the Employee agency’s obligation to provide me with medically suitable employment. It was never available for bid or application by any other employee, and would cease to exist once I left it.
The reason that this job was not available to other employees in the Employee agency’s general labor market is because it was not an actual, bona fide position. It was not a job that was “funded” or “classified”, and therefore was not part of the authorized employment complement of the Employee agency. It was an ad hoc job consisting of various sub-duties that was created for me, based on my medical restrictions.
Therefore, it was an odd- lot or make-shift job as defined by the above referenced ECAB decisions, and any LWEC determination based on this assignment would be in error and should be modified.
The cited ECAB rulings regarding odd-lot or make-shift jobs are consistent with the injury compensation principles discussed in Larson’s Workers’ Compensation Laws. In Volume 10, Section 57.51, Larson specifically addresses the “Odd-lot Doctrine” and discusses various compensation law rulings relating to this subject. One of the principles that emerges from Larson’s review that is particularly relevant to the application of the Employee agency’s NRP is that a job would also be considered to be odd-lot if it is not regularly and continuously available under normal employment conditions.
I know that I did not lose my limited duty job as a result of a lay off or REDUCTION IN WORKFORCE since the Employee agency has neither invoked nor complied with their contractual obligations as set forth in our collective bargaining agreement at Article 6, No Layoffs or Reduction in Force. Furthermore, the enclosed “Employee Leave Information Letter, Complete Day/Partial Day” provided to me by the Employee agency simply states that my work is no longer “necessary”. Not only does this position underline the make-shift nature of the work that I was performing, but, obviously, demonstrates that the work on which my LWEC was based was not regular and continuous.
The principle underlying the requirement that employment in a limited duty job must remain regular and continuous (baring misconduct or lay off) is one of equity. It would be inequitable and inconsistent with the general principles of injury compensation if the Employee agency was permitted to offer an employee medically suitable employment, wait 60 days for the formal LWEC determination of 0% loss of earning capacity, and then tell the injured employee that the job on which the LWEC was performed is being withdrawn because the work is no longer “necessary”. Then OWCP denies wage loss compensation based on the 0% LWEC, and the Employee agency has now neatly shed the financial burden of compensation costs for these employees.
Therefore, for all of the reasons stated above, I am requesting that the LWEC be declared in error and set aside, that the decision denying me wage loss compensation be vacated, and that I be approved for the appropriate compensation.
Thank you,
(signed)
