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Vocational Rehabilitation
Vocational Rehab & Loss of Wage-Earning Capacity
The OWCP assigns Vocational Rehabilitation to help employees return to suitable employment within the medical restrictions imposed by an injury or occupational disease that prevents them from returning to their position at the time of the injury. For some employees, vocational rehabilitation becomes the process that leads to a Loss of Wage-Earning Capacity (LWEC) determination. This is often where compensation changes, especially for employees whose checks are later reduced based on a job they never actually held.
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How It Helps
Services Offered Through Vocational Rehab
This return-to-work program offers services such as vocational counseling, testing, training, job placement assistance, and functional capacity evaluations. OWCP's authority to provide and direct these services comes from 5 U.S.C. § 8104 and related regulations. It’s assigned when medical evidence shows that an employee cannot return to the original federal position but may be capable of other work. The parties involved include a CE, a rehabilitation specialist, and a contract rehabilitation counselor. Formal vocational rehabilitation is different from early return-to-work efforts. A field nurse or nurse intervention may occur long before a formal rehabilitation referral.
The Employee’s Responsibility for Compliance
Vocational rehabilitation is a benefit, but participation is not optional. OWCP regulations require cooperation when vocational rehab is directed. Employees must return calls and correspondence, attend meetings and evaluations, participate in approved testing or training, apply for suitable jobs identified through the process, and provide updated medical information when it’s requested. If a medical condition prevents participation, document that limitation through medical evidence. Silence is treated differently than documented inability.
The Consequences of Noncooperation
Ignoring calls, missing meetings, refusing evaluations, or failing to participate in an approved rehabilitation effort can have serious consequences. OWCP may reduce or suspend compensation when an employee refuses or fails to cooperate without good cause. In some situations, compensation may be reduced based on a presumed earning capacity. In others, the reduction can effectively reach zero until cooperation resumes. A disagreement with the plan is not the same as proving inability to participate. A bad plan should be challenged with evidence. Going silent can create a different problem.
Be Responsive
When OWCP directs vocational rehabilitation, respond promptly and participate in the required activities. Raise any difficulties with supporting evidence.Document Limitations
Medical proof of inability is stronger than silence when meetings, testing, or training cannot be completed.LWEC
OWCP may use earnings from a suitable labor market position to determine earning capacity and benefits.Retirement
An OPM retirement election may occur while OWCP continues evaluating wage-earning capacity.
Bridging the Gap
How LWEC Is Calculated After the Process
After rehabilitation, OWCP may determine an employee’s Loss of Wage-Earning Capacity (LWEC). This determination establishes the employee’s earning capacity and how it affects continuing wage-loss compensation. It may be based on actual earnings after a return to work, provided those earnings fairly and reasonably represent the employee’s wage-earning capacity. It may also be based on earnings that OWCP concludes the employee can earn in suitable employment. The key question becomes earning capacity, not simply whether the employee currently holds a particular job.
Constructed Earnings
Constructed earnings are often the most misunderstood part of the process. A constructed LWEC can occur when OWCP identifies a job in the labor market that fits the employee's medical restrictions, experience, education, and vocational background. OWCP may use that job to establish earning capacity even if the employee never worked in the position. The position must be medically and vocationally suitable and reasonably available within the employee’s commuting area. If those requirements are met, OWCP may use the position’s earnings to calculate wage-loss compensation even if the employee has not secured that job.
Retirement Election During Rehab
Some federal employees elect OPM retirement benefits while a vocational rehabilitation effort is ongoing. That election does not automatically stop OWCP from continuing its analysis. Under 20 C.F.R. § 10.521, OWCP may proceed with a loss of wage-earning capacity determination based on the evidence in the record at the time of the retirement election. An LWEC finding may still affect future FECA entitlement even after a retirement election. Retirement and rehabilitation should be evaluated together rather than as completely separate issues.
When to Get the Plan and the Medical Record Reread
Problems often arise when the rehabilitation plan does not align with accepted medical restrictions or when a proposed LWEC relies on labor market assumptions that do not reflect the actual commuting area. Documents to review include:
The rehabilitation plan
Labor market survey materials
Medical work restrictions
Functional capacity evaluations
Job descriptions relied upon by OWCP
Reports from the rehabilitation counselor
Updated medical opinions addressing work capacity
Contact Our Office About Vocational Rehabilitation
Common disputes involve plans that ignore restrictions, pressure to pursue jobs that exceed documented limitations, or proposed LWEC findings based on job titles that do not realistically exist within the identified labor market. If concerns arise about your rehabilitation plan or a proposed reduction in compensation, contact Aumiller Lomax for a free telephone consultation. We can discuss your situation and whether representation would be helpful. Have relevant OWCP correspondence available or your ECOMP account open, and let us know about any response deadline.
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