Section 7-141. LOSS OF WAGE EARNING CAPACITY

 

141.1The Program may modify a claimant’s compensation by converting it from TTD, TPD, or PTD to compensation for Loss of Wage Earning Capacity (LWEC) under the following circumstances:

 

(a) A qualified physician has released a claimant to return to work in a modified duty capacity with restrictions, after examining the claimant and reviewing his or her medical records; or

 

(b) A claimant has failed to apply for and undergo vocational rehabilitation when so directed by the Program and the Program finds that, in the absence of such failure, the wage-earning capacity of the claimant would probably have substantially increased.

 

141.2Before the Program may modify a claimant’s compensation pursuant to paragraph 141.1(a), the Program shall conduct a labor market survey.  The phrase “labor market survey,” as used in this section, means:

 

(a) A determination of the types of jobs that a claimant is capable of doing, based on the following factors:

 

(1) The nature of his or her injury;

 

(2) The degree of physical impairment;

 

(3) His or her usual employment;

 

(4) His or her age;

 

(5) His or her qualifications for other employment;

 

(6) The availability of suitable employment; and

 

(7) Other factors or circumstances which may affect his or her wage-earning capacity as a worker with a disability,

 

(b) A determination of the claimant’s wage earning capacity, based on the wages that the claimant would be able to earn in the jobs identified pursuant to paragraph 141.2(a); and

 

(c) A determination regarding the availability of the jobs identified pursuant to paragraph (a) in the commuting area surrounding the claimant’s residence. 

 

141.3After it is completed, the Program shall share the labor market survey with the physician who conducted the examination referenced by paragraph 141.1(a) and ask the physician to comment on whether or not the employee can perform the essential functions or requirements of the jobs listed in the labor market survey, in light of the claimant’s medical restrictions.  If the physician agrees that the claimant can perform the jobs in light of the claimant’s medical restrictions, the Program may modify the claimant’s benefits pursuant to § 141.4. 

 

141.4After the claimant has met all of the requirements of this section, the Program may modify a claimant’s compensation to be sixty-six and two-thirds percent (66 2/3%) or, if the claimant is eligible for augmented pay pursuant to section 2310 of the Act, seventy-five percent (75%) of the difference between the claimant’s average weekly wage at the time of injury and the claimant’s wage-earning capacity.

 

141.5Prior to modifying a claimant’s compensation pursuant to this section, the Program must issue a NOD to the claimant that explains the basis of the Program’s decision and that attaches supporting documentation, including the LWEC wage calculation, the physician’s opinion, and the labor market survey.  The notice shall also advise the claimant of his or her right to request reconsideration or a hearing pursuant to § 128 of this chapter. 

 

 

authority

Chief Risk Officer of the Office of Risk Management (ORM), Executive Office of the Mayor, pursuant to the authority set forth in section 2344 of the District of Columbia Government Merit Personnel Act of 1978 (CMPA), effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-623.44 (2012 Supp.)); section 7 of Reorganization Plan No. 1 of 2003 for the Office of Risk Management, effective December 15, 2003; and Mayor’s Order 2004-198, effective December 14, 2004

source

Final Rulemaking published at 59 DCR 8766, 8810 (July 27, 2012).