Worker's Compensation

(1) Designating a workers’ compensation program manager. This position may be either full-time or collateral-duty, as appropriate for the size of the program;

(2) Retaining program management responsibility within the agency even if case management is outsourced.

(3) Providing adequate training and information on program and case management and procedures for managers, supervisors, and employees;

(4) Providing assistance for managers and supervisors in the execution of their program responsibilities;

(5) Conducting analyses or participating in program evaluations using established program assessment tools to assess whether programs comply with established principles, policies, procedures, and determining the need for improvement, training, or guidance;

(6) Taking adequate measures to protect the privacy of injured employees; and

(7) Providing requested reports and documentation of program activities to support USDA and DOL accountability program reviews and/or audits.

d. Managers and Supervisors are responsible for:

(1) Ensuring that employees are oriented in safety practices and that they observe safe work habits;

(2) Providing healthy and safe work areas;

(3) Ensuring that employees receive prompt medical care for injuries sustained on the job;

(4) Notifying the appropriate workers’ compensation program manager and/or Human Resources specialist immediately of any injury sustained on the job by an employee under their supervision;

(5) Giving priority attention to completing the necessary reporting forms promptly, including initiating their part of CA-Forms 1, 2, 2a, and 16, and submitting the original of these forms in a timely manner to the appropriate workers’ compensation program manager and/or Human Resources Specialist;

(6) Advising employees of their rights regarding election of continuation of regular pay or use of annual or sick leave as applicable to their injuries;

(7) Informing employees whether COP will be controverted, and, if so, whether it will be terminated, including the basis for this action; and

(8) Assisting in workers’ compensation cost reduction efforts by:

(a) Investigating and reporting all injuries and illnesses and any instances of possible abuse or false claims;

(b) Correcting, to the extent of their authority, recognized hazards that are causing or are likely to cause death or serious physical harm; and

(c) Making part-time, limited-duty, or light-duty work assignments available to employees so they may return to duty as soon as possible following absences.

e. Employees are responsible for:

(1) Complying with all applicable safety and health rules and regulations in order to prevent injuries and illnesses;

(2) Reporting unsafe or unhealthful working conditions to their immediate supervisor as soon as possible;

(3) Reporting work-related injuries and illnesses to their immediate supervisor as soon as possible;

(4) Completing the necessary reporting forms promptly, or ensure that someone acting in the employee’s behalf completes such forms; and

(5) Complying promptly with requests from their supervisor, the appropriate workers’ compensation program manager and/or Human Resources specialist for status updates or medical reports; and return to work as soon as the medical condition permits, even into a part-time, limited-duty, or light-duty work assignment or arrangement.

9. BENEFITS

a. Medical Care. An injured employee is entitled to all medical care determined to be necessary by qualified medical personnel, including transportation to such care. The medical care, if possible, is to be provided by a fully licensed physician or hospital of the employee’s choice.

b. Disability Benefits. Disability benefits are classified on the basis of the nature and extents of disability, and temporary/permanent partial disability. Federal employees who suffer disabilities that are causally related to employment may be eligible for one or more of several types of wage loss compensation.

c. Continuation of Pay (COP). The FECA provides 45 days continuation of regular pay for an employee who sustains a work-related traumatic injury. A day, or portion of a day, spent by an injured employee in a light duty job within the first 45 days of disability following an injury shall be counted as one (1) day of COP. This also includes any day or portion of a day during which a physician specifically altered the employee’s regular job to accommodate imposed injury-related work restrictions. If, during the 45-day period, the treating physician indicates the employee is able to return to work and the employee refuses to do so, the continued absence from work may result in an overpayment. For this reason, the USDA will submit the medical evidence of ability to work (CA-17) to the OWCP and an explicit statement of the light duty job that was offered to the employee. This medical evidence must include the light duty assignment physical requirements and documentary evidence of the light duty offer, as evidence that entitlement to continued pay may be terminated under this section.

(1) An employee sustaining a disabling, job-related traumatic injury is entitled to COP for a period not to exceed 45 calendar days. This will not be construed to require a person’s continued employment beyond the date it would have terminated had the employee not been injured. Any absence, for all or portion of the workday, while disabled or while seeking treatment, is counted as a day of COP.

(2) Employees are not entitled to COP for a traumatic, job-related injury, and the USDA may recommend that DOL controvert such pay when:

(a) The disability is the result of an occupational disease or illness;

(b) The employee falls within the exclusion of 5 U.S.C. 8101(1)(B) or (E) – that is, persons rendering services to the United States for no pay or for nominal pay;

(d) The injury occurred off the employing agency’s premises and the employee was not involved in official off-premises duties;

(e) The injury was caused by the employee’s willful misconduct, intent to injure, or intoxication;

(f) The injury was not reported on Form CA-1 within 30 calendar days following the injury;

(g) Work stoppage first occurred six (6) months or more following the injury; or

(h) The employee initially reported the injury after the employee’s employment had terminated.

(3) When COP for traumatic injury is allowed, it must not be interrupted until:

(a) The expiration of 45 calendar days;

(b) Receipt of medical information from the attending physician indicating that the employee is no longer disabled from his or her regular position;

(c) Medical evidence supporting disability due to a work-related injury is not received within 10 calendar days (unless the employer’s own investigation shows disability to exist); or

(d) Receipt of notification from the OWCP to terminate it.

d. Temporary Total Disability. An injured employee sustaining temporary total disability is entitled to compensation for the period of time that the medical evidence shows that the disability continues. The amount of compensation is 75% of the employee’s pay if s/he has one or more dependents (66.67% if there are no dependents) provided the amount payable does not exceed 75% of the monthly pay of a GS-15, step 10.

e. Permanent Total Disability. An injured employee sustaining permanent total disability is entitled to compensation during his lifetime unless medically or vocationally rehabilitated. The amount of compensation is 75% of the employee’s pay if s/he has one or more dependents (66 .67% if there are no dependents) provided the amount payable does not exceed 75% of the monthly pay of a GS-15, step 10. When the OWCP determines that medical documentation supports a requirement for attendant services, an additional sum up to $1,500 per month may be payable to a medical provider for this purpose.

f. Temporary/Permanent Partial Disability

(1) An injured employee may receive compensation computed on the loss of wage-earning capacity when the employee is partially disabled and unable to return to his/her employment because of injury.

(2) Compensation will be paid as long as there is a loss of wage earning capacity. Compensation will not exceed 75% of the monthly pay of a GS-15, step 10.

g. Scheduled Awards. Compensation is provided for specific periods of time for the loss of certain members and bodily functions. See 5 U.S.C. Section 8107 for the complete compensation schedule.

h. Compensation. Compensation depends on the type of injury. In a traumatic injury, compensation for loss of wages is payable after a three- (3) day waiting period following expiration of the forty-five (45) calendar days of continuation of pay. In a non-traumatic injury case, compensation for loss of wages is payable after an initial three (3) day waiting period. In either event, no waiting period is required when there is a permanent disability or where the disability causing wage loss exceeds 14 days from the time compensation begins.

(1) An injured employee with one or more dependents is entitled to receive 75% of his/her pay (66.67% if there are no dependents), provided the amount payable does not exceed 75% of the monthly pay of a GS-15, step 10.

(2) Compensation may not be paid while an employee is on leave. The employee has the right to elect whether to receive pay for leave (annual or sick) or to receive compensation. The employee must be in a Leave-Without-Pay (LWOP) wage-losing category before s/he can receive compensation.

i. Leave Buy-Back.

(1) An employee may elect to take paid leave to avoid possible interruption of income. An employee electing to take paid leave may subsequently elect compensation coverage and buy back the leave used.

(2) The amount of money the employee will be required to pay will depend on several factors such as the length of the period of disability and the amount of Federal income tax which is withheld from leave pay. Upon USDA/agency request, the OWCP provides a statement to the employee and the USDA/agency. The USDA/agency will compute and complete the buy-back cost and notify the OWCP about the transaction. The employee must refund to the USDA/agency the amount of leave paid for the period involved. The amount necessary to buy back the leave used may be reduced by the amount of compensation paid by the OWCP, if that compensation is paid directly to the USDA.

(3) When leave buy-back is completed, the period of time the leave was used is converted to LWOP, and the rules and regulations governing LWOP apply.

j. Death Benefits.

Survivors of USDA employee who died on or after October 7, 2001, as a result of injuries incurred in connection with an Armed Force in the theater of operations of Operation Enduring Freedom or Operation Iraqi Freedom may be entitled to a $100,000 death gratuity payment. This gratuity amount is to be reduced by death benefits paid under other authorizations. Employees who are serving, or are to serve in those theaters should have on file with their agency a signed form CA-40 “Designation of Recipient of the Death Gratuity Payment under Section 1105 of Public Law 110-181. Eligibility for this gratuity will be determined by OWCP based on the claim information submitted, additional information requested from the employing agency, and/or claims submitted by survivors. There is no requirement that the employee’s death occur within a certain time limit following the injury.

k. Election between Compensation and Retirement Annuity.

Generally employees, or their survivors, may elect to receive either retirement or survivor annuity under either a Federal retirement plan or compensation from OWCP, whichever is more advantageous to the employee/survivor. Exceptions to this general rule will be reviewed in the context of the DOL and other applicable regulations.

10. PROCEDURES

a. Case Management. Proper case management requires agencies to be actively engaged in all of the activities described in Section 12 of this Departmental Regulation. Special emphasis should be given to submitting claim forms to DOL in a timely manner, to ensuring that only rightful benefits are paid to eligible employees and to returning injured employees to work as soon as they are able.

b. Employer’s Notice of Injury. An injured employee, or someone acting on the employee’s behalf, must provide written notice of the injury to the employee’s supervisor as soon as possible, but not later than 30 days after the injury in order to preserve the claimant’s right to COP. The notice should be provided to the supervisor using Form CA-1 or on Form CA-2, as appropriate.

(1) When an injury comes to the attention of a supervisor, the supervisor will give the employee Form CA-1 or Form CA-2, as appropriate, and direct the employee to give notice of the injury on the front of the form. When the employee completes notice of the injury, the supervisor must complete the receipt on the bottom of the instruction sheet attached for the form and give it to the employee. This form is then forwarded to the appropriate workers’ compensation program manager and/or Human Resources specialist. The form is then to be transmitted to DOL within ten working days after receipt from the employee.

(2) Statements should also be obtained from any witnesses and submitted with Form CA-1 or Form CA-2 when possible.

c. Report of Injury by Supervisor.

(1) The supervisor must prepare a written report of injury if:

(a) The injury causes disability form the employee’s usual work beyond the shift in which the injury occurred; or

(b) The injury will result in a charge for medical or other related expenses.

(2) The supervisor’s report of injury is to be made on Form CA-1 or Form CA-2, as appropriate. The report should be submitted to the appropriate workers’ compensation program manager and/or Human Resources specialist. If either situation as defined in (1), above, pertains, the report of injury will then be forwarded to the DOL OWCP. If a report of injury to the OWCP is not required, the completed Form CA-1 or CA-2 will be made a permanent part of the employee’s official personnel file.

d. Authorizing Examination and Treatment.

(1) When an employee sustains an injury in the performance of duty, the supervisor will immediately authorize examination by issuing the medical Form CA-16, Request for Examination and/or Treatment, to a United States medical officer or hospital, or any duly qualified physician or hospital of the employee’s choice. Federal medical officers readily available may provide medical care when their use is practicable. The injured employee has the right to select a local, duly qualified, private physician or hospital within a 25-mile radius of the employee’s home. Federal Health Service units or other occupational health service facilities established under the provisions of 5 U.S.C. 7901 are not Federal medical officers and hospitals for the purpose of this directive.

(2) In cases of traumatic injury where emergency treatment is necessary, the employee may contact the nearest qualified physician or hospital for initial treatment. When the employee’s supervisor issues oral authorization for treatment due to the emergency nature of the situation, the supervisor must complete the Form CA-16 and issue it to the injured employee within 48 hours following the injury.

e. Medical Reports. All cases reported to the OWCP require that the OWCP be furnished with an immediate medical report from the attending physician. This report may be made on Part B of Form CA-16, CA-20, CA-20a, or by a narrative report on the physician’s letterhead stationery. Employees will be provided with a Form CA-17, duty Status Report, at the time the injury is reported to the appropriate workers’ compensation program manager and/or Human Resources specialist.

Under CFR Sec. 10.506 the employing agency of the injured worker is allowed to monitor the injured worker’s medical care. Agency personnel can request work restrictions from the OWCP nurse, OWCP itself, or directly from the physician, although the Health Insurance Portability and Accountability Act will prohibit this if the employee has not signed a release.

f. Health Insurance.

(1) An employee retains health insurance coverage (including coverage for any covered family members) if the employee:

(a) Has been enrolled (or covered as a family member) in a plan under the Federal health benefits program for: (1) the five (5) years of service immediately preceding the start of compensation; or (2) during all service since his/her first opportunity to enroll; or (3) enrolled continuously for the full period or periods of service beginning with the enrollment which became effective no later than December 31, 1964;

(b) Is receiving compensation as described in this regulation; and

(d) Has been determined by the OWCP (via written notice to the employee) to be able to return to duty following medical treatment.

(2) The employee is responsible for paying the employee’s share of health benefits coverage during the receipt of compensation as during any time of nonpay status. The OWCP will make withholdings for the employee from compensation for any period of compensation 29 days or more. After 365 days in nonpay status, the employee may elect to convert to an individual policy or have his/her coverage transferred to the OWCP, if the coverage has not already been transferred.

g. Life Insurance.

(1) An employee retains basic life insurance (excluding accidental death and dismemberment) under the OPM Federal Employees’ Group Life Insurance (FEGLI) program without cost if the employee:

(a) Is in receipt of OWCP benefits on the day insurance would otherwise terminate, and the OWCP has not issued to the employee a determination that s/he is able to return to duty;

(b) Does not convert to an individual policy; and

(c) Has been insured under the FEGLI program for the five (5) years of service immediately preceding the date s/he becomes entitled to benefits under the FECA or the full period(s) of service since the employee’s first opportunity to be insured, if less than five (5) years.

(2) During receipt of compensation, the employee is required to pay for any optional life insurance that s/he wishes to continue after the first 29 days. If the employee elects to continue optional insurance beyond the first 29 days, the OWCP will make withholdings from the employee’s compensation benefits beginning with the first day of the pay period following the one in which withholdings from COP ceases.

(3) After an employee has been in a non-pay status for 12 months, the employee may elect to: (1) convert to an individual life insurance policy; or (2) continue OPM FEGLI coverage during receipt of OWCP compensation (if approved by OPM in response to a request by the employee for such approval).

h. Returning Injured Workers to Suitable Employment. Employers and injured employees each have responsibilities in returning the injured worker to suitable employment.

(1) The injured employee is responsible for:

(a) Seeking or accepting suitable employment;

(b) Resuming regular Federal employment if capable;

(d) Reporting efforts to obtain suitable employment, if requested by OWCP.

(2) The employer is responsible for:

(a) Authorizing medical care;

(b) Advising the employee of alternative positions available for a partially disabled person;

(d) Advising the employee of any accommodations the agency can make where no alternative position is available.

(3) After an employee has provided medical documentation that he/she can return to work after an extended absence, the supervisor and the agency workers’ compensation manager representative must:

(a) Review the medical documentation to determine if the documentation is sufficient for the employee to return. The documentation must have a return to work (RTW) date and must state that the employee is out of work due to a work-related injury. Submit all medical documentation to OWCP when received.

(b) Provide the employee and the physician a copy of the employee’s position description and CA-17, Duty Status Report; and

(d) Provide the employee and OWCP with a written, valid job offer which takes into account any work restrictions imposed by the physician.

(4) A valid job offer must contain:

(a) A description of specific job duties to be performed;

(b) Specific physical requirements of the position and any special demands or unusual working conditions;

(d) The organizational and geographical location of the job;

(e) Date on which the job will first be available;

(f) Date by which a response to the job offer is required;

(g) Pay information including grade, step, and salary; and

(h) Information regarding the election of OPM benefits.

Return the employee to duty when medically released. An employee cannot RTW prior to the RTW date on medical documentation as doing so can hinder the employee’s recovery or worsen their condition. The supervisor must submit an SF-52, Request for Personnel Action, Return to Duty, to Human Resources. The supervisor then meets with the employee to discuss the work schedule, any needed training, and work expectations.

i. Termination of Disability. Immediately upon the return to duty of an employee after an absence caused by an on-the-job injury or occupational disease, the supervisor will complete the appropriate section of Form CA-3, Report of Termination of Disability and/or Payment. The report will be forwarded to the HR Section, which will in turn forward it to the OWCP.

j. Recurrence of Disability. If an employee suffers a recurrence of disability and again stops work, the supervisor will notify the FLA HR Section. The appropriate workers’ compensation program manager and/or Human Resources specialist will forward the appropriate CA forms to the OWCP. In traumatic injury cases, if the original 45-day entitlement period has not been exhausted and less than six (6) months have expired since the employee returned to work after the initial disability, the employee may elect continuation of regular pay instead of sick or annual leave.

11. CLAIMS FOR COMPENSATION

a. Time Limits.

(1) Notice of Injury or Death. Supervisors must be provided written notice of job-related injury or death within 30 days of the incident in order to preserve the claimant’s right to COP. The designated or appointed representative of the injured or deceased employee may report the injury or death and complete the required written report. Failure to report injuries or deaths may jeopardize benefit rights.

(2) Filing with the OWCP. Before the OWCP will pay compensation, the injured employee, or a representative designated by an injured or deceased employee, is required to file a written claim for compensation within three (3) years after the injury. If the supervisor had actual knowledge of the injury within 30 days, or if written notice was given within 30 days, the OWCP allows compensation regardless of whether a written claim is made within three years (3) after the injury.

(3) Exceptions. The time limits do not apply to:

(a) A minor until attaining the age of 21 or until a representative is designated or appointed;

(b) An incompetent during the period of incompetence when there is no designated representative or a duly appointed legal representative; or

(c) An employee whose failure to comply is excluded on the grounds that notice could not be given because of exceptional circumstances.

b. Traumatic Injury Claims.

(1) Where disability continues beyond 45 calendar days, the employee and supervisor must complete and submit Form CA-7 to the OWCP not later than five (5) working days after the end of the 45-day period to ensure continuity of benefits.

(2) Employees may have the right to representation on any matter pertaining to an injury or death occurring in the performance of duty.

(3) Form CA-7 must be accompanied by a medical report (see Section 3-4, above) showing continued disability for work beyond the end of the 45-day period. The employee or the medical provider must submit the Form CA-7 and the medical report directly to the appropriate OWCP office handling the claim and provide copies to the appropriate workers’ compensation program manager and/or Human Resources specialist.

c. Occupational Disease Claims.

(1) The USDA/agency must submit the Form CA-4 to the OWCP within 10 calendar days after pay stops or when disability terminates, if the pay loss is less than 10 days.

(2) The Form CA-4 must be accompanied by a medical report showing the disability. The employee or the medical provider must submit the Form CA-4 and the medical report directly to the appropriate OWCP office handling the claim and provide copies to the appropriate workers’ compensation program manager and/or Human Resources specialist.

(3) Employees may elect to use sick or annual leave pending adjudication of the claim by the OWCP.

d. Continuing Disability Claims.

(1) When temporary total disability continues, the employee must submit a Form CA-7 to the OWCP every two (2) weeks. The employee must continue to submit this form every 2 weeks unless the OWCP exercises its discretion and otherwise instructs the employee.

(2) Form CA-7 must be accompanied by a medical report (see Section 103.5 above) showing continued disability for work. The employee or the medical provider must submit the Form CA-7 and the medical report directly to the appropriate OWCP office handling the claim and provide copies to the appropriate workers’ compensation program manager and/or Human Resources specialist.

e. Cases Involving Liability of a Third Party. The OWCP has the right to be reimbursed for damages recovered in any case of injury or death caused under circumstances creating a legal liability upon someone other than the United States government. No person claiming compensation should attempt to settle a third party claim arising out of an injury or death without first obtaining advice and approval from the Solicitor of Labor (obtain from the Associate Counsel for Employees’ Compensation, DOL, Washington, D.C. 20210). Whenever a potential third-party liability case occurs, the supervisor of the injured or deceased employee (the claimant) must make the employee or deceased employee’s designated or appointed representative aware of this process.

f. Hearings. A claimant (or his/her designated representative) that has filed a claim for benefits from the OWCP, who is dissatisfied with an OWCP decision regarding the claim may ask for a hearing before an OWCP representative. The request for a hearing must be made to the Director of the OWCP within 30 days after the decision with which the claimant is dissatisfied. Upon receipt of the request for hearing, the OWCP will advise the claimant regarding the details of the hearing process. At the hearing, which will be held at a location convenient to both the claimant and the OWCP, the claimant may present evidence in further support of the claim. After the hearing, the OWCP will issue a new decision.

g. Reconsideration. A claimant may ask the OWCP to reconsider any determination made by one of its offices. No special form is required to request this reconsideration, but the request must be addressed to the Director of the OWCP in writing and must state clearly the grounds upon which it is based. It must also be accompanied by evidence not previously submitted, such as new medical reports or new statements and affidavits. There is no time limitation within which a request for reconsideration must be filed.

i. Appeals.

(1) A claimant may ask the DOL Employees’ Compensation Appeals Board to review final decisions by the OWCP. To file an appeal, the claimant should write to the Employees’ Compensation Appeals Board, United States Department of Labor, Washington, D.C. 20210. A Form AB-1 is provided for this purpose to ensure furnishing necessary information.

(2) The Board’s jurisdiction extends to questions of law and fact, and it may also consider exercises of discretion to determine their reasonableness. Its review is based solely upon the case record in the OWCP at the time the final determination was made, and new evidence is neither received nor considered by the Board.

(3) For claimants residing within the continental United States, applications for review by the Board are to be filed within 90 days of the date of the final determination by the OWCP. If the claimant resides outside of the continental United States, applications for review by the Board are to be filed within 180 days of the date of the final OWCP determination. For good cause shown, the Board may excuse final OWCP determination. For good cause shown, the Board may excuse failure to timely file an application for review, if it was filed within one (1) year of the date of the final OWCP determination.

12. PROGRAM ADMINISTRATION AND EVALUATIONS

This directive is administered through the Office of Procurement and Property Management (OPPM), Safety and Health Management Division, Washington, D.C. 20250, telephone number (202) 720-8248. As part of its overall program responsibility, OPPM may conduct reviews of agency workers’ compensation programs. These will be conducted as part of comprehensive Management Reviews when deemed necessary by OPPM, or at the request of an agency.

When conducted, these program reviews will examine agency compliance with DOL and USDA requirements. This includes, but is not necessarily limited to, agency actions to:

· Track claim forms submissions, claimants’ files, and OWCP time lag reports to ensure timely processing, or controversion of claims;

· Manage new and long-term claims;

· Monitor employees’ status during periods of disability, and ensure that employees are returned to duty as soon as medically capable.

· Implement agency and/or Mission Area-wide rehire and return-to-work programs;