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Vocational Rehabilitation

Claimants call me surprised and alarmed that OWCP has assigned them to a vocational counselor. The idea isn’t new; what’s new is my sense that OWCP is sending ever more injured workers to vocational experts in an attempt to lower overall compensation costs.

If OWCP finds a claimant is no longer disabled from the accepted condition, it acts to terminate compensation. Such a decision is most often based on a second opinion medical report.

A medical report may indicate a claimant is permanently disabled but may also conclude the claimant has recovered from the work injury to the extent he is only partially disabled. At this point, vocational rehabilitation can come into play.

OWCP is interested in learning from a professional vocational counselor if the partially disabled claimant can do some work and, if so, what he could earn at that work in relation to the amount of workers’ compensation he receives. In other words, what is the loss of wage earning capacity? Once there is a loss of wage earning capacity determination, OWCP may reduce compensation by the amount of the new possible wage, even if the claimant is not employed. (A vocational counselor will assist with a job search.)

At that point, OWCP issues a notice of proposed reduction, to which the claimant can disagree in writing. OWCP may then issue a notice of reduction, which the claimant can formally appeal by requesting a hearing or requesting reconsideration. (I would not advise an appeal to the Employees’ Compensation Appeals Board because a claimant can’t submit evidence or argument to the Board.) The impact of the reduction depends on the amount of the claimant’s compensation and the purported wage decided on by the vocational counselor, but I’ve seen clients reduced from thousands of dollars monthly to hundreds.

Some claimants try to avoid such an event by avoiding the vocational counselor herself. Such avoidance can only go on so long because OWCP anticipated that tactic. Federal regulation 20 CFR § 10.519 is entitled: What action will OWCP take if an employee refuses to undergo vocational rehabilitation? It reads:

Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled employee to undergo vocational rehabilitation. … 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, …. 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, meetings with the OWCP nurse, 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.

Paragraph (c) is essentially a suspension of compensation, and I’ve had a number of clients who have been suspended. Getting back on compensation sounds easy—the claimant simply complies by contacting the vocational counselors. However, my experience is that OWCP takes seriously the regulation’s language until such time as the employee acts in good faith, meaning a claim examiner wants to see a vocational report recording an actual meeting, etc. What constitutes complying, in OWCP’s terms, can cause delay in reinstatement of compensation.

Bottom line. The law clearly provides that OWCP can require claimants to undergo vocational rehabilitation under certain circumstances. Unless a claimant can show good cause with evidence such as a medical report, resisting vocational rehabilitation can cause grief. If the reduction of compensation is unfair, there will be a day to respond to a notice of proposed reduction. If a claimant’s condition worsens in the future, the loss of wage earning capacity determination can be changed with updated medical documentation.

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