D.C. Mun. Regs. tit. 7 § 130
Current through Register Vol. 71, No. 21, May 24, 2024
Rule 7-130 - COMPUTATION OF WAGE INDEMNITY; PARTIAL DISABILITY130.1 A disability is partial, when a qualified health professional determines that a claimant can perform work with restrictions, provided that:
(a) The restrictions arise out of a work-related injury;(b) A claim has been filed for the work-related injury and accepted by the Program; and(c) The qualified health professional has examined the employee and reviewed his or her medical records.130.2 If the disability is partial, subject to the limitations in Section 2306 a of the Act (D.C. Official Code § 1-623.06 a), the claimant's monthly monetary compensation shall be sixty-six and two-thirds percent (66 2/3%) (or seventy- five percent (75%), if an augmented rate of wage-loss compensation is permitted) of the difference between the claimant's monthly pay, as defined at Section 2301(4) of the Act (D.C. Official Code § 1-623.01(4) ), and the claimant's monthly wage-earning capacity after the beginning of the partial disability.
130.3(a) Determination based on actual wages. If the claimant has current or a history of actual earnings which fairly and reasonably represent his or her wage-earning capacity, those earnings shall form the basis for payment of wage- lo ss compensation for partial disability.(b) Determination based on labor market survey. If the claimant's actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the claimant has no actual earnings, the Program shall perform a labor market survey, using the factors set forth in § 130.5 of this chapter, to select a position that represents his or her wage-earning capacity.(c) Determination pending labor market survey. If a claimant is released to work in any capacity, the Program may calculate earnings at the highest minimum wage rate in effect within a fifty (50) mile radius of the claimant's residence at the time, taking into account the total hours the claimant is medically authorized to work, to construct a temporary wage-earning capacity until a labor market survey is completed.130.4 In establishing a wage-earning capacity, the Program is not obligated to secure employment for the claimant in the position selected for establishing a wage-earning capacity.
130.5 The phrase "labor market survey" means a determination of the types of positions that a claimant is capable of doing, based on the following factors, as set forth in Section 2315 of the Act (D.C. Official Code § 1-623.15 ):
(a) The nature of his or her injury;(b) The degree of physical impairment;(c) His or her usual employment;(e) His or her qualifications for other employment;(f) The availability of suitable employment; and(g) Other factors or circumstances which ma y affect his or her wage-earning capacity as a worker with a disability.130.6 When conducting a labor market survey, the Program shall identify at least three (3) suitable positions that are available at the time. The claimant's wage-earning capacity shall be calculated based on the annual earnings of the lowest-paid position identified, taking into account the total hours the claimant is medically authorized to work, unless it is reasonable to select a higher-paid position based on the factors set forth in § 130.5 of this chapter.
130.7 The Program shall determine whether the positions selected are reasonably available and vocationally suitable. Th e fact that a claimant is not successful in securing employment does not establish that the selected positions are not vocationally suitable.
130.8(a) When calculating wage-earning capacity pursuant to Section 2315 of the Act (D.C. Official Code § 1-623.15 ) and this section, it is necessary to establish that the selected positions are medically suitable given the claimant's injury-related and pre-existing impairments.(b) A wage-earning capacity determination must be based on a current or contemporaneous medical evaluation.(c) Medical conditions not related to the work-related injury or condition that has been accepted as compensable by the Program will not be considered, unless they pre-existed the accepted injury or condition.(d) Considerations shall be based on well-defined work restrictions in the medical or claim record.130.9 The positions selected for determining the wage-earning capacity must be reasonably available in the general labor market within fifty (50) miles of the claimant's residence.
130.11 To convert the monthly partial disability monetary compensation into bi-weekly installments, the monthly compensation rate shall be multiplied by twelve (12) and divided by twenty-six (26).
130.12 Cost-of- living adjustments shall be applied to the partial disability compensation rate in accordance with § 139.2 of this chapter.
130.13 The Program may apply a wage-earning determination retroactively if the evidence shows that partial, rather than total, disability existed. A claimant's receipt of actual earnings shall be deemed to support the retroactive application of a wage-earning capacity determination to at least the period when wages were first earned. Following the Program's initial determination, a retroactive determination based solely on a labor market survey may not encompass any period during which wage-loss benefits were actually paid.
D.C. Mun. Regs. Tit. 7, § 130
Final Rulemaking published at 59 DCR 8766, 8802 (July 27, 2012); amended by Final Rulemaking published at 64 DCR 6325 (7/7/2017); amended by Final Rulemaking published at 66 DCR 4246 (4/5/2019); amended by Final Rulemaking published at 67 DCR 7481 (6/12/2020)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