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Getting Continuation of Pay Started Off Right
Brad Harris, Attorney at Law
Most federal employees know that if they are injured on the job they are entitled to workers compensation, some mistakenly think that all is well with their workers compensation claim due to the quick start of disability compensation called the Continuation of Pay (COP) program. The source of this confusion is that, to some extent, the process of applying for COP overlaps with the process of applying for workers compensation.
COP is paid by the employer only in connection with a traumatic work injury. Employees with occupational disease claims are not eligible to receive COP. They use a different form (CA-2) to apply for workers compensation.
COP is the continuation of an employee's regular pay for up to 45 calendar days of wage loss due to disability. COP is paid as salary, not compensation. It is therefore subject to the usual payroll deductions such as income taxes and retirement contributions. The pay rate includes missing night differential, hazard, premium, and holiday pay - but neither Sunday pay nor lost overtime is included.
In order to receive COP benefits the employee must file form (CA-1) "Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/ Compensation," It must be filed within 30 days of the injury. If the employing agency (EA) does not have a signed CA-1 they cannot authorize medical care or COP benefits.
The employee cannot be required to use his accumulated leave time when he or she suffers a traumatic injury, but if his COP is controverted and terminated, due to financial circumstances he has no choice but to use Form CA-7 to apply for his accumulated leave time, leave without pay, and regular workers compensation (which pays a non-taxable percentage of pay rate – 66% if no minor dependents, 75% if minor dependents).
The employee has the right to select a physician of his choice. Because the willingness of the physician to connect the injury to work activity is critical with regard to entitlement to benefits, this selection may be one of the most important decisions an injured employee can make. I suggest that the employee contact local plaintiff attorneys to find out which doctors are likely to be more responsive to the employee as opposed to the employer. If the medical evidence on its face supports disability due to a work-related injury the employee is entitled to COP when absent from work due to the disability. The attending physician reports the employee’s condition on a Form CA 20.
Generally speaking, once COP has begun the employer must continue paying. Exceptions to this general rule exist when (1) the employee fails to provide the employer with medical evidence of a disabling traumatic injury within 10 calendar days of claiming COP (2) the employee's physician has found the employee to be partially disabled and the employee refuses suitable work or fails to respond to the job offer or (3) the employee's scheduled period of employment ends, or employment otherwise ends, provided the period of employment or date of termination is set before the injury occurs.
The employer does not have the right to interrupt COP if a disciplinary action has been taken against an employee unless preliminary written notice of termination or other action was issued before the injury occurred and the termination or other action became final during the COP period.
The Employing Agency (EA) rightfully has an obligation to controvert the claim where there is a dispute as to the stated facts. They are to assign all claims to an individual that I will refer to in this article as the EA’s workers compensation (wc) specialist. That person has a responsibility to gather all facts and circumstance about the claim and to conduct a thorough investigation whenever circumstances are suspicious.
His or her file typically contains witness statements that are closely checked to see if the various statements are consistent. The specialist may choose to inquire as to if the employee was previously expressing any fear of job security or opinion that he was not being permitted to work in a particular job or environment. He collects pictures, time sheets, and creates a report of the circumstances surrounding the injury incident which includes the employee’s then existing leave balance, his prior injury claims, performance problems, grievances or EEO complaints.
The EA’s wc specialist is trained to watch for some obvious concerns:
- Was the employee terminated from his job and then claimed he was injured at work?
- Was the claimed injury really caused by a work related activity? For example:
1. if the injury occurred off the employing agency’s premises, was he engaged in official “off-premises” duties?
2. was the injury caused by the employee’s willful misconduct, intent to bring about injury or death to self or another person, or intoxication?
- What amount of time transpired between the time the injury was allegedly caused and the employee’s report of injury (a delay in reporting is suspicious).
The EA has a responsibility to monitor the worker’s medical progress and duty status by obtaining periodic medical reports (CA-17). The EA’s wc specialist typically obtains the employee’s authorization to obtain medical records. If the employee refuses to supply the medical records authorization he can typically get the OWCP to get one because the EA’s wc specialist has a legitimate interest in making sure that the injury wasn’t really a pre-existing condition. He then checks over the medical records very carefully to determine if there was any pre-existing condition. He also checks to see if physical complaints during subsequent medical care are consistent with the initial complaints or simply relate back to employee’s condition prior to the claimed injury date.
The EA’s wc specialist is not to have telephone conversations with the employee’s physician. He is allowed to correspond in writing with the employee’s physician concerning the work limitations and restrictions imposed. He is required to send copy of such letters and answers to the OWCP. In order to stay advised, the employee should ask the doctor to be sure to provide him with copies of any correspondence of this nature.
If the EA’s wc specialist believes the disability claim will extend beyond the 45 day COP period or if surgery is suggested he or she will seek the assistance of an RN to assist in the evaluation of the claim. This nurse is often used to interpret medical jargon and verify medical necessity. For example, he or she typically communicates directly with the employee’s primary treating physician, seeking to know when the employee can return to work or if the injured employee has returned to the condition he was in (although it may have been poor) prior to the work incident.
The EA has the legal right to require the employee to submit to a medical examination conducted by a doctor selected by the EA to obtain an opinion regarding the employee’s condition 5 CFR 339.301(c). This report often serves as material to controvert the employee’s claims. The subject of competing medical examinations is too extensive to cover in this article.
If the EA’s wc specialist believes that the claim is improper he or she can file an objection to pay with the OWCP. COP generally continues unless the OWCP claim examiner agrees that the evidence is clear. Under 5 U.S.C. 5584, if the OWCP later agrees that the COP shouldn’t have been paid, the payments, at the employee’s option, are charged back to annual sick leave or LWOP (overpayment of pay) and reimbursement is required.
Part of the EA’s wc specialist job is to assist the employee in returning to work as soon as possible 5 U.S.C. 8106. He should work with the employee’s supervisor to see if any accommodation work is available. In those situations where an agency has advised the employee of its willingness to accommodate the employee’s work limitations and restrictions, the employee is required to advise his attending physician and request the physician to specify the limitations and restrictions imposed by the injury. The employee has the responsibility to advise the employing agency immediately of the limitations and restrictions imposed.
Whenever the medical report "Duty Status Report," Form CA-17 indicates that the employee can return to work (either in an accommodated basis or not) the agency advises the employee in writing of his or her obligation to return to work as soon as possible. If an employee refuses an offer of suitable work, his entitlement to COP (as well as his right to regular workers compensation benefits) ceases as of the effective date of availability of such work.
The employee can file grievances with regard to mistakes or misconduct by the EA and its wc specialist but no grievances are allowed for decisions made by the OWCP (such as acceptance of the claim as work-related or medical suitability of a limited-duty job offer).
Disputes regarding the employee’s return to work and reasonable accommodation are controlled by the OWCP. These disputes are often mistakenly thought by employees to be the basis for asserting an EEO claim. The topic is too large to address in this article about COP.
Finally, if the employee believes that his disability will last more than 45 days he should be entitled to regular workers compensation and be sure to complete and have the employer submit a Form CA-7 to the OWCP as soon as possible before the 40th day of COP.
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