New Regulations Taking Effect 1/4/1999
On November 25, 1998, the U.S. Department of Labor published entirely new regulations for the operation of the Office of Workers’ Compensation Programs. These regulations took effect on January 4, 1999, and were under the regulation number 20 CFR Parts 10 and 25. There were a number of significant changes, as discussed in the following paper.
Stylistic Changes
The new regulations are presented in a question/answer format, which makes it easy to find the question which needs answering. The language within the regulations has a pleasant, explanatory tone. It is clear that the writers were trying to make this subject more understandable. This change is applauded.
Management Coercion Prohibited
The new regulations contain new language prohibiting management from trying to induce an employee to not file or withdraw a previously-filed claim.
Rights and Penalties 20 CFR § 10.15
May compensation rights be waived?
No employer or other person may require an employee or other claimant to enter into any agreement, either before or after an injury or death, to waive his or her right to claim compensation under the FECA. No waiver of compensation rights shall be valid.
Reduced Time Frame for COP
The most controversial change in the new regulations reduces that date that continuation of pay can be commenced from 90 to 45 days following the injury. This change could have a profound effect on the length of time an employee can seek follow up care on the clock, and will have an effect when surgery for an injury is not approved until a claim is adjudicated. The employee in the above instances will have to use paid leave or use LWOP and claim compensation.
20 CFR § 10.205 What conditions must be met to receive COP?
(a) To be eligible for COP, a person must:
(1) Have a ‘‘traumatic injury’’ as defined at § 10.5(ee) which is job-related and the cause of the disability, and/or the cause of lost time due to the need for medical examination and treatment;
(2) File Form CA–1 within 30 days of the date of the injury (but if that form is not available, using another form would not alone preclude receipt); and
(3) Begin losing time from work due to the traumatic injury within 45 days of the injury.
COP Calculation Potentially Weakened
Several federal agencies have passed appropriations bills denying the inclusion of holiday pay or Sunday differential when calculating lost wages for continuation of pay. OWCP has included language permitting such a change in those agencies who have passed such laws. The Postal Service does not appear to have been affected as of yet, but permission now exists for any federal agency to pass laws that would reduce this benefit.
20 CFR § 10.216
How is the pay rate for COP calculated?
The employer shall calculate COP using the period of time and the weekly pay rate.
(a) The pay rate for COP purposes is equal to the employee’s regular ‘‘weekly’’ pay (the average of the weekly pay over the preceding 52 weeks).
(1) The pay rate excludes overtime pay, but includes other applicable extra pay except to the extent prohibited by law.
Tighter Medical Evidence Rules
The employing agency may terminate payment of COP after ten calendar days, which was changed from ten working days in prior regulations. This is further proof of the need to file a claim promptly when injured and pursue the claim with diligence.
20 CFR § 10.222
When may an employer terminate COP which has already begun? (a) Where the employer has continued the pay of the employee, it may be stopped only when at least one of the following circumstances is present:
(1) Medical evidence which on its face supports disability due to a work-related injury is not received within 10 calendar days after the claim is submitted (unless the employer’s own investigation shows disability to exist). Where the medical evidence is later provided, however, COP shall be reinstated retroactive to the date of termination; considered an overpayment of pay consistent with 5 U.S.C. 5584.
Form CA-16 Time Limit Clarified
OWCP has permitted employing agencies to refuse to issue Form Ca-16 if the injury is not claimed within one week. This policy is found in their training materials for agency compensation specialists and was published in 1994 in their Handbook Ca-810, Section 2.2b. This change brings their regulations into accord with their actual working policy.
Emergency Medical Care 20 CFR § 10.300
What are the basic rules for authorizing emergency medical care?
(b) The employer shall issue Form CA–16 within four hours of the claimed injury. If the employer gives verbal authorization for such care, he or she should issue a Form CA–16 within 48 hours. The employer is not required to issue a Form CA–16 more than one week after the occurrence of the claimed injury....
Nurse Intervention Program Strengthened
By incorporating the nurse intervention program under vocational rehabilitation, the voluntary status of the nurse program is subject to question, due to the ability of OWCP to sanction long-term claimants who do not cooperate with vocational rehabilitation. Time will tell if this program will continue to be at all voluntary for short-term cases.
20 CFR § 10.518
Does OWCP provide services to help employees return to work?
(a) OWCP may, in its discretion, provide vocational rehabilitation services as authorized by 5 U.S.C. 8104. These services include assistance from registered nurses working under the direction of OWCP. Among other things, these nurses visit the worksite, ensure that the duties of the position do not exceed the medical limitations as represented by the weight of medical evidence established by OWCP, and address any problems the employee may have in adjusting to the work setting.
Agency Physician Telephone Contact Denied
In a remarkable rule change, employing agencies, including the Postal Service, have been denied the right to telephone physicians to propose limited duty work. Although this change will hinder somewhat the placement of injured workers in limited duty, this change was a just act, certain to prevent serious abuse of injured workers and their physicians.
20 CFR § 10.506 May the employer monitor the employee’s medical care?
The employer may monitor the employee’s medical progress and duty status by obtaining periodic medical reports. Form CA–17 is usually adequate for this purpose. To aid in returning an injured employee to suitable employment, the employer may also contact the employee’s physician in writing concerning the work limitations imposed by the effects of the injury and possible job assignments. (However, the employer shall not contact the physician by telephone or through personal visit.)
Medical Conflict Defined
The FECA defines medical conflict as conflict between the employee’s physician and the physician(s) for the United States. There are no distinctions between specialists and general practicioners. Still, OWCP constantly rules that a particular physician has more probative weight than another. The new regulations contain their justification for
overruling the claimant’s physician.
20 CFR § 10.321
What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?
(a) If one medical opinion holds more probative value, OWCP will base its determination of entitlement on that medical conclusion (see § 10.502). A difference in medical opinion sufficient to be considered a conflict occurs when two reports of virtually equal weight and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB 1010 (1980)).
Concluding Remarks
The full effect of these changes is yet to be determined, and our discussion is in no way a complete assessment. As these changes roll out, things will certainly be interesting.
Disclaimer: The material in this article is not presumed or intended to reflect an official position of the
National Association of Letter Carriers or the Michigan State Association of Letter Carriers. This article contains opinion statements of the writer offered for basic informational purposes only. There is no substitute for consultation with or representation by a trained advocate. The writer cannot assume responsibility of any type for the use of this material by others.
