5 USC 8106(c) Suitable Employment Issues. All MEDICAL CONDITIONS MUST BE Considered. What is a suitable job? OWCP s Role

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1 Federal Workers Compensation Conference Suitable Employment under the Federal Employees Compensation Act DOL Perspective Catherine P. Carter Office of Solicitor USDOL 1 5 USC 8106(c) A partially disabled employee who (1) refuses to seek suitable work; or (2) refuses or neglects to work after suitable work is offered to, procured by, or secured for him; is not entitled to compensation. ECAB has said that 5 USC 8106(c) is a penalty provision that will be narrowly construed. 2 An injured employee who cannot return to the position held at the time of injury (or earn equivalent wages) due to the work-related injury, but who is not totally disabled for all gainful employment, is considered to be partially disabled. (20 CFR ). An employer may offer suitable employment to a partially disabled employee. (20 CFR ). GOAL: RETURN TO WORK IN A JOB THE EMPLOYEE CAN DO. Suitable Employment Issues Employee Responsibilities Accept/Seek suitable work Employer Responsibilities Offer employment that the employee is capable of performing i.e. work within medical restrictions that employee is vocationally qualified to perform Locate suitable work within commuting area or confirm none is available OWCP s Role Develop evidence Determine suitability Provide notice in accordance with DOL regulations and ECAB case law Provide appeal rights if OWCP terminates wage loss/schedule benefits 3 4 What is a suitable job? Preliminary Assessment of Position. A job which involves less than four hours of work per day where the claimant is capable of working four or more hours per day will be considered unsuitable. A job which represents permanent seasonal employment will generally be considered unsuitable unless the claimant was a career seasonal or temporary employee when injured. A temporary job will be considered unsuitable unless the claimant was a temporary employee when injured and the temporary job reasonably represents the claimant's WEC. Even if these conditions are met, a job which will terminate in less than 90 days will be considered unsuitable. All MEDICAL CONDITIONS MUST BE Considered If medical evidence in file document either a preexisting medical condition OR a condition which has arisen since the compensable injury, and these conditions disable the claimant from the offered job, the job will be considered unsuitable (even if the preexisting/ subsequently-acquired condition is not workrelated)

2 OWCP Employee Responsibilities OWCP's goal is to return each disabled employee to suitable work as soon as he or she is medically able. (20 CFR ). OWCP may offer vocational rehabilitation to the employee. (20 CFR ). 7 If an employee can resume regular Federal employment, he must do so. If an employee cannot return to the job held at the time of injury due to partial disability, but has recovered enough to perform some type of work, he must seek work. The employee must accept suitable work offered to him. (20 CFR ) 8 Employer Responsibilities Advise in writing of employee of obligation to return to work. Monitor the employee s medical progress and duty status and must do so in writing 20 CFR Place employee in former or equivalent position if fully recovered within one year. Make an offer of suitable employment in writing. 20 CFR Making an Offer of Suitable Work Employer must determine what duties are available based on the employee s medical restrictions. Employer may modify an existing job to fit the employee s medical restrictions. ECAB has said that whether a job offer is suitable turns on the medical evidence. 10 Location of Offered Job The employer should offer suitable employment in the location where the employee currently resides. If this is not practical, the employer may offer suitable employment at the employee's former duty station or other location. Lack of work in commuting area must be documented in the file! Relocation expenses if >50 miles. 20 CFR The Job Offer The job offer must be in writing and include the following: a description of the duties of the position, the physical requirements of those duties, the date the employee must return to work or decline the job offer. A copy of the job offer must be sent to OWCP when it is sent to the employee. 20 CFR

3 Employer s Responsibilities under the Rehabilitation Act An employer bears certain responsibilities under Section 501 of the Rehabilitation Act of The responsibility to reasonably accommodate an employee lies with the employer. An employer should check with the agency HR office or with agency counsel to determine the agency s responsibilities for reasonable accommodation. The mere fact that a job offer is being made within the FECA context does not excuse the agency s responsibilities in this area nor does the responsibility for reasonable accommodation shift to OWCP. 13 OWCP s Offer OWCP will review the job offer and the employee s medical restrictions and advise the employee whether the offer is suitable. In determining what constitutes "suitable work" OWCP considers: the employee's current physical and mental limitations (ALL) the employee's commuting area the employee's qualifications to perform such work, and other relevant factors SUCH AS THE PHYSICAL ABILITY TO COMMUTE TO THE OFFERED POSITION. 14 Job Offer: OWCP s Two Notices 30 Days: The employee has 30 days to accept the offer or present any reasons to counter OWCP s finding of suitability. 15 Days: If OWCP finds the employee s reasons unacceptable and the job offer still suitable, OWCP must give the employee 15 days to accept the offer. See 20 CFR ; Maggie Moore case. Job Offer: The Employee An employee who refuses or neglects to work after suitable work has been offered or secured for him has the burden to show that this refusal or failure to work was reasonable or justified. The employee may submit a medical report from his physician explaining why he is physically unable to perform the offered job Acceptable Reasons for Refusal Unacceptable Reasons for Refusal The offered position was withdrawn. The claimant found other work which fairly and reasonably represents their earning capacity (in which case compensation would be adjusted or terminated based on actual earnings). The medical evidence establishes that the claimant s condition has worsened since the beginning of the reemployment effort such that the claimant is now disabled for the job The claimant's preference for the area in which he currently resides. Personal dislike of the position offered or the work hours scheduled. Lack of potential for promotion. Lack of job security. Retirement. Previously-issued rating for LWEC based on a constructed position where the claimant is not already working at a job which fairly and in question reasonably represents his WEC. 3

4 Job Offer: Referee Examination If the employee submits rationalized medical evidence that he cannot perform the job, OWCP may perform additional medical development and/or find a conflict in medical evidence exists. OWCP then refers employee to a third impartial referee physician to resolve the conflict. The results of the referee examination will be given special weight in determining the suitability of the offer. 19 Suitable Work Penalty Provision An employee who refuses to seek suitable work, or refuses to or neglects to work after suitable work is offered to or arranged for him, is not entitled to compensation benefits. Only OWCP may make a suitability determination that can result in terminating compensation benefits if claimant refuses job. The employee remains entitled to medical benefits only. Penalty also bars a schedule award for period after termination based on refusal of suitable employment. 20 Terminating Benefits Appealing OWCP s Decision After OWCP makes an offer of suitable employment, and OWCP determines that the evidence the employee submits is not an acceptable reason to refuse the employment, the employee is given another opportunity to accept the job. If the offer is not accepted, the employee receives a formal decision terminating all benefits except medical benefits. 21 OWCP s formal decision terminating benefits is accompanied by an explanation of the employee s rights to further administrative review. Employee may appeal the termination by: 1. Requesting reconsideration before the OWCP district office based on new evidence or legal arguments OR 2. Hearing (telephonic or in person) or review of the written record before an OWCP hearing representative OR 3. Appeal to the Employees Compensation Appeals Board (ECAB). 22 ECAB Case Law O.W., Docket No (Issued February 2, 2007). [OWCP must consider preexisting and subsequently acquired [medical] conditions in evaluating the suitability of an offered position.] M.B., Docket No (issued April 1, 2009). OWCP erred in terminating compensation benefits without positive evidence showing job offer in the location where the employee currently resided was not possible or practical--ecab reversed a suitability determination on a job offer 400 miles ECAB Case Law Charles W. Lund, Docket No (issued September 27, 2004). [Desire to work in his date-of-injury position not a valid reason for not accepting the modified work as approved by the physicians of record.] E.W., Docket No (issued June 16, [While OWCP provided initial 30 day notice, OWCP failed to advise claimant that her medicals were unacceptable and failed to provide her an additional 15 days to accept the employment. OWCP did not comply with the proper notice requirements prior to termination. ] away

5 ECAB Case Law M.K., Docket No (issued June 9, 2009). Although inability to travel to work is an acceptable reason to refuse suitable employment, OWCP met its burden of proof to terminate benefits where medical report concluding appellant was unable to drive was not well reasoned and lacked physical findings or an explanation as to why appellant could not use her right arm to steer her car. Thus, the report was not sufficient to establish the position was not suitable due to an inability to commute. 25 ECAB cases W.S., Docket No (issued June 22, 2010). [OWCP failed to meet its burden of proof on suitability. Although appellant, a utility system operator, had the physical capacity to perform the offered secretarial position, the record failed to establish employee had the necessary educational and vocational background to perform the position.] P.P., Docket No (issued June 21, 2010). [ECAB reversed suitability determination, finding that OWCP and examining doctors had not adequately addressed possible effects of appellant s pain medications in evaluating the job.] 26 Suitable work and retirement R.F., Docket No (issued January 13, 2011) (OWCP noted that appellant s disability retirement became effective November 8, 2008, before the date that she sought to return to work. Under OWCP procedures, retirement is not considered an acceptable reason for refusing an offer of suitable work. When appellant accepted disability retirement, she effectively removed herself from the employing establishment rolls. Appellant s contention that the employing establishment withdrew the job offer was not supported by the record. The employer confirmed the job was open and available--there was no evidence to support assertion that the employing establishment tricked her into returning to work. 27 After Your Training 28 FECA References Additional Guidance 5 USC 8101 et seq. 20 CFR Part 1 (explains OWCP structure and the delegation of authority from Secretary of Labor) 20 CFR Part 10 FECA Regulations CA-810, Injury Compensation for Federal DOL Website: OWCP District Office addresses and telephone contacts CA-810, CA-550 (Q&A Booklet), Forms Decisions of the ECAB (final appellate authority on FECA claims) (On DOL Website and searchable) Program Procedures --Federal (FECA) Procedure Manual, FECA Bulletins & Circulars FYI: No judicial review of FECA determinations 5 USC 8128 (b) Employees

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