Where the failure or refusal occurs in the preliminary stages of the vocational rehabilitation   effort and the District Office cannot determine what the Claimant's wage-earning capacity would have been, the District Office will assume that

the vocational rehabilitation effort would have resulted in a return to work with no loss of wage earning capacity, and the Office will reduce the employee's monetary compensation accordingly. Any reduction in the employee's monetary compensation under this provision shall continue until the employee in good faith complies with the direction of the Office.(*153)

     When vocational rehabilitation is not feasible, the Claimant's wage-earning capacity is determined based upon a position deemed suitable but not actually held, a so-called "constructed" wage-earning capacity. Selection of this position will employ the factors listed in § 8115(a) of the FECA.

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     The Claims Examiner is responsible for determining whether the medical evidence establishes that the Claimant is able to perform the job, taking into consideration medical conditions due to the work-related injury or disease and any pre-existing medical condition.(*155) Once the Claims Examiner determines that the job is suitable, the CE provides the Claimant with a pre-reduction notice and gives the Claimant 30 days to respond.

     As with so many of DFEC's procedures, the wage-earning capacity determination process has many areas susceptible to abuse. As discussed above, the medical evidence may be selectively developed and evaluated to show that the injured employee is capable of performing some work. DFEC's Strategic Goal of reducing the number of "lost production days" has made this an important objective.

     Once the medical evidence establishes that the Claimant is not totally disabled, a District Office RS will select positions for a "constructed"wage-earning capacity determination. In many cases the Claimant is not qualified for the position. However, the RS can state that the position is suitable and reasonably available in the Claimant's without providing any corroborating evidence. The Procedure Manual states that "[b]ecause the RS is an expert in the field of vocational rehabilitation, the CE may rely on his or her opinion as to whether the job is reasonably available and vocationally suitable."(*156) After a hearing, however, the RS's opinion will be rejected unless there is a basis for the opinion. DFEC is improperly using the unverified opinions of Rehabilitation Specialist to unfairly reduce or terminate benefits.

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     Employing agencies also have a financial incentive to develop medical evidence which establishes that a Claimant is only partially disabled. Based upon this evidence an agency will make an offer of alternative employment. However, although that District Office is required to make a suitability evaluation of the position it does not do so in many cases. Instead the District Office will rely on the agency's statement that the position is suitable. The employing agency often will not make a written offer of alternative employment. Instead, the agency will assure the District Office that they can provide a position which accommodates the Claimant's residual disability. However, without a written job offer, the agency can, and often does, force the Claimant to perform other, medically unsuitable duties. One important reason that wage-earning capacity determinations are reversed when appealed is that the medical evidence does not establish that the Claimant can perform the selected job.

     Another important reason that wage-earning capacity determinations are reversed is inappropriate job selection. As noted above, DFEC is improperly using the unverified opinions of Rehabilitation Specialist to unfairly reduce or terminate benefits. However a Claimant is unable to challenge the suitability of the position selected since the opinion of the RS is presumptively valid. Once the position is identified and the Claimant is told it is suitable, he or she has no alternative but to take the position and appeal.

[t]he guiding principle of this new approach . . . is early, active management of the case through staff teamwork, leading to return to light or alternative work if possible. If intervention by the occupational health or rehabilitation nurse does not lead to return to work, the case is expected to move quickly to medical and vocational evaluation. If evaluation supports a -wage-earning capacity, the injured worker is advised that OWCP judges him or her to be partially disabled, and that benefits will be adjusted (*158)

[t]he DFEC rehabilitation program grew significantly after 1986 when the division began to emphasize rehabilitation services in preference to earning capacity determinations not based on actual employment. In the intervening years, the program went from serving 3,574 workers in 1986 to serving 10,401 in 1992.(*159)

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This change in strategy is reflected in the data summarized in Table 7. As the number of nurse interventions increased, the number of rehabilitations decreased. This strategy appears to be based upon the fact that nurse interventions cost less per cases than rehabilitations.(*161)

     As with the PRM project and QCM procedures,(*162) increased implementation of early nurse interventions is positively correlated with an increase in hearing requests, i.e. early nurse interventions increased by 44% from 1993 to 1996, while hearing requests, including requests for written record reviews, increased by 22% during the same period. After spiking in 1994, injuries during this period dropped by 7%,

     The true success of early nurse intervention has not been validated. As with so many other initiatives, DFEC has not reported meaningful statistics. For example, DFEC states

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