How to Establish Entitlement to Wage Loss Compensation
There is a common misconception among our injured members that once their claim is accepted by OWCP, they are automatically entitled to wage-loss compensation. Unfortunately, this is not the case, rather it is a separate hurdle to overcome. Whenever OWCP initially accepts a traumatic injury (CA-1) or an occupational disease (CA-2), it accepts the claims for medical benefits only.
WAGE REPLACEMENT
Under FECA the term “disability” means incapacity, because of an accepted employment injury, to earn the wages that the employee was receiving at the time of injury. Disability is, thus, not synonymous with physical impairment which may or may not result in an incapacity to earn wages. An employee who has a physical impairment causally related to his or her federal employment, but who nonetheless has the capacity to earn the wages he or she was receiving at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.
WAGE LOSS COMPENSATION
To establish disability from work a claimant must submit medical evidence that either establishes that he or she is precluded from performing any type of work, even modified or sedentary duty, or that he/she has work restrictions due to the injury that the employing agency is not able to accommodate.
WHAT IS WAGE LOSS COMPENSATION?
Wage loss compensation is paid out of the workers’ compensation fund allocated by congress. Funds issued from the United States Department of the Treasury. Ultimately, all wage loss compensation paid is “charged back” to the employing agency each fiscal year. In the end, the Postal Service foots the bill. 20 C.F.R. 10.403b: Wage loss compensation is paid as a percentage of weekly pay rate, generally from the date of injury, 66 2/3 percent if the employee has no dependents, 75 percent if the employee has at least one dependent, tax free.
The most common dependents are: A husband or wife who lives with the employee. An unmarried child (including an adopted child or stepchild) who lives with the employee is under 18 years of age, and the employee makes regular direct payments for his or her support.
HOW IS PAYRATE DETERMINED?
The most common Pay rate for compensation is based upon:
Date of injury; In some cases it can be: Date that disability began; or
Date of recurrence, when disability recurs at least 6 months after return to regular full-time employment.
The following elements of pay are included in computing an employee’s pay rate:
Employee’s full salary;
Night or shift differential;
Extra compensation/premium pay for Sunday or holiday work
The following elements of pay are excluded in computing an employee’s pay rate:
Overtime pay
SEEKING LIMITED DUTY WORK
The Law obligates injured workers to work if they can. 20 C.F.R. 10.500b: Each disabled employee is obligated to perform such work as he/she can. It is always in the carrier’s best interest to do some work.
PS FORM 3971
Injured workers should submit 3971s (leave slips) requesting COP, 071, for time lost due to their traumatic injury. Injured workers should submit 3971s (leave slips) requesting OWCP – LWOP, 049, for time lost due to their traumatic injury after the 45 calendar days of COP or for time lost due to their occupational disease.
PS FORM 2499 – Offer of Modified Assignment (Limited Duty) identifies:
Scheduled Hours
Scheduled Days
Salary
Duties
Never Refuse Work
If you have reason to question the propriety of a job offer, accept under protest.
Refusing a job puts the injured worker at risk.
Once a job offer is refused OWCP will determine whether it was suitable.
If determined suitable OWCP will issue an 8106c Sanction.
Once issued Sanctions are difficult if not impossible to overcome.
Pursue a job offer through the grievance procedure.
Accepting under protest is not a waiver of your right to contest the job offer through the grievance procedure M-01120.
If you can perform some of the job offer show up and do what you can.
Limited Duty Job Offer (LDJO)
Postal and federal regulations allow the injured worker to take the job offer to their attending physician. When in doubt, accept any job offer and write “under protest” next to your signature. Then, schedule an appointment with your treating physician as soon as possible. Injured workers, who get a job offer with some duties exceeding their medical limitations, should accept the job offer, do what work they feel is within their medical limitations, and take the job offer to their physician for review. Never work beyond your accepted medical restrictions!!
Medical Evidence For Total Disability FECA Procedure Manual 2.0901.5.a.2(a&b):
(2) The medical evidence must establish that the lost time claimed was the result of the accepted work injury.
(a) To be eligible for compensation, the medical evidence should support that the claimant is disabled as a result of the accepted work injury. The evidence should either establish that the claimant is precluded from performing any type of work, or that the claimant has work restrictions due to the injury that the employing agency is not able to accommodate.
20 CFR § 10.501(a)(3): The physician’s opinion must be based on the facts of the case and the complete medical background of the employee, must be one of reasonable medical certainty and must include objective findings in support of its conclusions. Subjective complaints of pain are not sufficient, in and of themselves, to support payment of continuing compensation. Likewise, medical limitations based solely on the fear of a possible future injury are also not sufficient to support payment of continuing compensation. See § 10.330 for a fuller discussion of medical evidence.
OBJECTIVE VS SUBJECTIVE
Objective evidence can be measured or verified e.g., MRI, X-Ray, Range of Motion testing etc. Pain is Subjective: An IW with a sprained ankle may report pain on a scale of one to ten as a ten. Another IW with the same injury may report a two. FECA Procedure Manual 2-1500: Pain or an increase in pain does not constitute objective evidence of disability. See Sally S. Weinacht, Docket No. 91-1035, issued November 12, 1991;D.C., ECAB Docket No. 08-2185 (Apr. 10, 2009).
YOU MUST BE IN LWOP STATUS
For traumatic injury claims do not file form CA-7 for any period covered by COP. Do not file for overlapping dates. Do not file for dates where sick or annual leave was used. If dates are intermittent file a CA-7A. File only for continuous periods of disability.
PROOF OF FILING
Delayed submission by USPS means delayed payments. Before submitting print or screen shot the CA-7 to prove the date of filing in the event of delayed submission. 20 C.F.R. 10. 112b: Upon receipt of Form CA-7 from the employee…the employer shall complete the appropriate portions of the form. As soon as possible, but no more than five working days after receipt, the employer shall forward the completed Form Ca-7…to OWCP. Also see ELM 545.82d.
