D.C. Mun. Regs. tit. 7, r. 7-144

Current through Register Vol. 71, No. 44, November 1, 2024

Rule 7-144 - MODIFICATION OF AWARD OF COMPENSATION

144.1

The Program may modify an award of compensation if the Program has reason to believe that the claimant's PSWCP file and records establish:

(a) A change of condition has occurred pursuant to Section 2324(d)(1) of the Act (D.C. Official Code § 1-623.24(d)(1) );

(1) A change of condition means a change to a claimant's accepted medical condition or other circumstance, such as incarceration, vocational or other education studies, that affect the claimant's ability to earn wages; or

(b) A change to the claimant's accepted medical condition has occurred pursuant to Section 2324(d)(4) of the Act (D.C. Official Code § 1-623.24(d)(4) ) for one of the following reasons:

(1) The disability for which compensation was paid has ceased or lessened;

(2) The disabling condition is no longer causally related to the accepted work injury;

(3) Claimant's condition has changed from total disability to partial disability;

(4) Claimant has been released to return to work with or without restrictions; or

(5) The Program determines based on compelling evidence that the initial decision was in error.

144.2

An "award of compensation" means a Program determination or Compensation Order issued pursuant to section 2324 of the Act (D.C. Official Code § 1-623.24 ) and shall not include calculations set forth in a Notice of Benefits or adjustments to benefits made pursuant to § 145 of this chapter.

144.3

Except as provided at Subsection 144.3(a), the Program will provide the claimant with prior written notice of the proposed action to modify an award of compensation pursuant to § 144 of this chapter and give the claimant thirty (30) days to submit relevant evidence or argument to support entitlement to continued payment of compensation prior to issuance of an Eligibility Determination (ED), where the Program has a reason to believe that compensation should be modified due to a change of condition pursuant to Sections 2324(d)(1) and (4) of the Act. An ED shall be accompanied by information identifying the employee's appeal rights and, for termination of benefits, claimant's time limitation from the date of the notice to make a claim for permanent disability compensation.

(a) Prior written notice will not be given when:

(1) The claimant dies;

(2) The Program either reduces or terminates compensation upon a claimant's return to work or release to return to work;

(3) The claimant has been convicted of fraud in connection with the claim;

(4) When the award of compensation was for a closed period, which has expired;

(5) The Program issues an initial determination where a claim has been deemed accepted pending such issuance; or

(6) The claimant's benefits are suspended for failure to:

(A) Participate in vocational rehabilitation, if the claimant is hired on or after January 1, 1980;

(B) Follow prescribed and recommended course of medical treatment from the treating physician; or

(C) With regard to a scheduled additional medical examination:

(i) Attend the examination,

(ii) Bring medical records under the claimant's possession and control to the examination, or

(iii) Any other obstruction of the examination.

144.4

Prior notice provided under this section will include a description of the reasons for the proposed action and a copy of the specific evidence upon which the Program is basing its determination. Payment of compensation will continue until any evidence or argument submitted has been reviewed and an appropriate decision has been issued, or until thirty (30) days have elapsed after the issuance of the notice if no additional evidence or argument is submitted.

144.5

(a) If a claimant timely files his or her response to the Program's prior written notice of proposed modification and identifies additional evidence the claimant wishes to submit, the Program shall allow the claimant additional time to submit evidence, where claimant establishes good cause for the delay in acquiring the evidence.

(b) If the claimant submits evidence or argument prior to the issuance of the decision, the Program will evaluate the submission in light of the proposed action and undertake such further development as it may deem appropriate, if any. Evidence or argument that is repetitious, cumulative, or irrelevant will not require any further development. If the claimant does not respond within thirty (30) days of the prior written notice, the Program will issue a decision consistent with its prior written notice. The Program will not grant any request for an extension of this thirty (30) day period.

(c) Evidence or argument that refutes the evidence upon which the proposed action was based will result in the continued payment of compensation. If the claimant submits evidence or argument that fails to refute the evidence upon which the proposed action was based but which requires further development of the evidence and basis for the decision, the Program will not provide the claimant with another notice of its proposed action upon completion of such development. Once any further development of the evidence is completed, the Program will either continue payment or issue a decision consistent with its prior written notice or further developed evidence.

144.6

(a) If substantial evidence in the claimant's Program file establishes that a claimant hired before January 1, 1980, without good cause failed to apply for or undergo vocational rehabilitation, when directed by the Program:

(1) The Program may propose a reduction of wage- loss compensation and present the proposed reduction to the Compensation Review Board (CRB) for review; and

(2) The CRB shall affirm the reduction in benefits, if it determines that there is substantial evidence in the record to show that the wage-earning capacity of the individual would probably have substantially increased, absent the claimant's failure to attend vocational rehabilitation, as directed by the Program.

(b) For the purposes of this subsection, the term "substantially increase" means an increase in wage-earning capacity of fifty percent (50%) or more.

(c) The Program shall compute the claimant's wage-earning capacity by conducting a labor market survey or applying the factors provided at Section 2315 of the Act (D.C. Official Code § 1-623.15 ) based on the assumption the claimant has enrolled completed in vocational rehabilitation. The claimant's annual wage-earning capacity shall be divided by twelve (12) to arrive at the claimant's monthly wage-earning capacity. The claimant's monthly wage-earning capacity assuming enrollment incompletion of vocational rehabilitation shall be compared against the claimant's wage-earning capacity without enrollment or incompletion of vocational rehabilitation. If the claimant's wage-earning capacity assuming enrollment in completion of vocational rehabilitation exceeds the claimant's wage-earning capacity without vocational rehabilitation by fifty percent (50%) or more, the Program may propose a reduction of wage-loss compensation.

144.7

Failure to apply for or undergo vocational rehabilitation shall include failure to attend meetings with the vocational rehabilitation counselor, failure to apply for jobs that have been identified for the claimant, or failure to otherwise participate in good faith in the job application process.

144.8

In all claims, the claimant is responsible for continual submission, or arranging for the continual submission of, a medical report from the attending physician as evidence supporting the reason for continued payment of compensation under the award of compensation.

144.9

For wage- loss compensation benefits, "reason to believe" that the disability for which compensation was paid has ceased pursuant to §§ 144.1(b)(1) and 144.3(a) of this chapter includes a claimant's failure to provide contemporaneous medical evidence to show that:

(a) The accepted condition remains disabling; and

(b) The nature and extent of the ongoing disability necessitate claimant's continued absence from work or restricts claimant from performing the full scope of pre- injury duties.

144.10

For medical compensation benefits, "reason to believe" that the condition for which compensation was paid has ceased pursuant to § 144.3(a) of this chapter includes a claimant's lack of treatment for the accepted condition for one year or more.

144.11

Compensation benefits that have been suspended under this section may be resumed if a claimant cures the deficiency that gave rise to the suspension, unless benefits have been terminated. Resumption of compensation benefits that have been suspended shall occur on a prospective basis.

D.C. Mun. Regs. tit. 7, r. 7-144

Final Rulemaking published at 59 DCR 8766, 8814 (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