DEPARTMENT
OF LABOR
Office
of Workers’ Compensation Programs
20
CFR Parts 1 and 30
RIN
1215-AB51
Performance
of Functions; Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended
AGENCY: Office of Workers’ Compensation
Programs, Employment Standards Administration, Labor.
ACTION: Final Rule.
SUMMARY: On
At the same time the
Department published the interim final regulations, it also invited written
comments and advice from interested parties regarding possible changes to those
regulations. This document amends
the interim final regulations based on comments that the Department
received.
DATES: Effective
Date: This
rule will be effective on
FOR
FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of
Workers’ Compensation Programs, Employment Standards Administration, U.S.
Department of Labor,
Room S-3524,
SUPPLEMENTARY
INFORMATION: The Department of Labor’s interim final
regulations implementing its responsibilities under the Energy Employees
Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C.
7384 et seq.), were published in the
Federal Register on June 8, 2005 (70
FR 33590). They took effect
immediately and included a 60-day period for comment. During the comment period, the Department
received 533 timely comments: two
joint comments from 39 congressional representatives; two from labor
organizations; four from attorneys; four from advocacy groups; one from a lay
representative; one from DOE; one from a DOE contractor; and 518 from
individuals. The Department also
received untimely comments from one physician, one attorney, one advocacy group,
the
Some minor changes have been
made to the interim final regulations that did not result from any
comments. One such change is the
addition of new language to § 30.112(b) to recognize that pursuant to § 30.106,
entities other than DOE may be verifying alleged periods of employment that
claimants have reported to OWCP. A
second change is the addition of language to § 30.301(c) clarifying that OWCP
will also not issue a subpoena for the testimony of employees of the National
Institute for Occupational Safety and Health (NIOSH) or contractors of either
OWCP or NIOSH acting in their official capacities with respect to the EEOICPA
claims adjudication process. In
addition, the existing language of § 30.316(c) has been modified so that a
recommended decision on a claim that is pending for more than one year after the
date it was reopened for issuance of a new final decision will be considered a
final decision on that claim as of that date, and § 30.400(a) has been modified
to reflect the current practice of OWCP to pay for medically necessary treatment
of a primary cancer in claims where the accepted occupational illness or covered
illness is a secondary cancer.
When publishing a final rule
following a comment period, it is customary to publish only the changes that
have been made to the rule; however, in order to be more user-friendly, the
Department is publishing the entire rule, including the parts that have not been
changed. By doing so, only one
document containing all of the regulations and commentary needs to be consulted
rather than multiple documents.
I. Comments on the Interim Final
Regulations
The section numbers used in
the headings of the following analysis are those that were used in the interim
final regulations. Unless otherwise
stated, the section numbers in the text of the analysis refer to the numbering
used for the final regulations. No
comments were received with respect to part 1.
Section
30.5
One individual suggested
that the definition for the statutory term “Department of Energy facility” be
modified to more clearly identify the “list of facilities established by the
Department of Energy” referred to in the interim final regulation. To eliminate any confusion with respect to this list, and
as suggested by the comment, § 30.5(x) has been amended in this final rule to
specify which list of facilities the Department has adopted. Another individual believed that the
five-year latency period requirement for specified cancers listed in §
30.5(ff)(5) was “in error” and suggested that it be deleted. However, the latency period requirement
is contained within section 7384l(17)(A) of the Act and cannot be modified in
these regulations. Therefore, the
suggested change was not made. A
third individual suggested that § 30.5(gg) be modified to more clearly describe
the requirements for eligibility of survivors under Part E. Section 30.5(gg) is only intended to
inform readers that survivors must be alive to receive a payment. Because complete descriptions of the
requirements for eligibility of survivors under Part B and Part E of EEOICPA
already appear at § 30.500, the suggested change is unnecessary and was not
made.
Sections
30.100, 30.101, 30.102 and 30.103
One attorney pointed out
that while employees and survivors can use Forms EE-1 and EE-2 to file their
initial claims with OWCP, there was no form provided for filing a claim for an
alleged consequential illness or injury.
The absence of a specific form for claiming an alleged consequential
illness or injury is intentional since in those situations, OWCP would already
have all of the necessary factual information that could be requested by a
form. Claimants need only submit
written “words of claim” to OWCP, together with the type of supporting medical
evidence described in §§ 30.207(d), 30.215, 30.222(b), 30.226 or 30.232(c), to
file a claim for a consequential illness or injury. Therefore, no new form has been designed
and the suggested changes to §§ 30.100 and 30.101 were not
made.
Two individuals disputed the
provision in § 30.101(c) that a survivor must be alive to receive a payment
under the Act and noted that if all of the eligible survivors die before payment
can be made, no payment can be made to any other individual as the heir of a
deceased eligible survivor.
However, this result is required under both Parts B and E of EEOICPA
pursuant to sections 7384s(e)(1) and 7385s-3(c), which require that survivors
under both Part B and Part E must be alive at the time of payment, and cannot be
altered by regulation. Therefore,
the requested change to § 30.101(c) was not made.
Three advocacy groups
suggested that the provision in § 30.102 that OWCP will only adjudicate a claim
for an increased impairment rating if it is filed at least two years from the
date of the last award of impairment benefits is unreasonable and proposed that
the waiting period to be reduced to either one year or six months. The claim development process that OWCP
uses when it determines a covered Part E employee’s minimum impairment rating is
necessarily complex and usually takes a considerable amount of time to
complete. For example, the medical
evidence submitted in support of an alleged rating may not contain all of the
information that OWCP will need to determine an impairment rating. OWCP would then have to seek that
information from another source, or obtain an impairment evaluation by another
physician before it would be able to determine the extent of the alleged
permanent impairment based on the evidence in the case record. If claimants were permitted to apply for
an increased impairment rating sooner than two years after their prior award for
impairment benefits, the claims processing system would inevitably become less
efficient and claimants who have not had their initial impairment claims
adjudicated and who have not received benefits for their compensable permanent
impairments would necessarily have to wait even longer to receive a decision
from OWCP. Therefore, in order to
maintain an efficient system of adjudication for all claimants and to best use
its limited resources, OWCP concludes that the two-year waiting period should
remain in place and none of the suggested changes to this section have been
adopted.
One of these same advocacy
groups also noted that while § 30.103 requires claimants to use approved forms
when filing claims under Part E of EEOICPA, “the present forms do not allow for
claiming diseases other than cancer, berylliosis or silicosis.” On
regs/compliance/owcp/eeoicp/main.htm. Therefore, the suggested change to §
30.103 is unnecessary and has not been made.
Section
30.106
One individual questioned
whether DOE was in possession of sufficient employment data to enable it to
verify alleged periods of employment for “most” claims. OWCP does not dispute that there are a
number of facilities for which DOE does not have access to any employment
data. However, OWCP has developed a
number of alternative methods to be used for verifying alleged employment at
those facilities. In
acknowledgement of this situation, § 30.106 describes the various alternative
methods by which OWCP may seek to verify alleged periods of employment at those
facilities for which DOE has no employment data, and no change to this section
was made in the final rule.
Sections
30.111, 30.113 and 30.114
One individual and two labor
organizations questioned the description of the general burden of proof that all
claimants must meet in order to establish their entitlement to any compensation
under either Parts B or E of EEOICPA.
Section 30.111(a) describes the general burden of proof that claimants
must meet, “[e]xcept where otherwise provided in the Act and these regulations,”
with respect to all of the required elements involved in a claim. As one of these labor organizations
noted, there are differing burdens of proof between Parts B and E, as well as
between different claimed illnesses within a single Part of the Act. This fact, however, does not mean that
the description of the general burden
of proof in § 30.111(a) is incorrect.
OWCP is committed to helping claimants meet their burden of proof and is
aware that some claimants may have difficulty proving both the presence of and
their exposure to a toxic substance at a particular facility under Part E. In an effort to remedy this situation,
OWCP is currently developing exposure matrices that will compile information
provided by a variety of sources, including DOE, former worker medical survey
programs, and epidemiological studies.
For all of the DOE facilities, extensive documentation exists covering
thousands of toxic materials. The
matrices now being developed will be posted on our website and will be available
to claimants and their representatives.
While it is not possible to define precisely in a regulation how these
complex matrices will be used in each case, OWCP’s procedural guidance documents
will provide additional clarity in this regard, and those documents will also be
available to the public on our website.
Nevertheless, it would not be appropriate to relieve claimants of their
ultimate obligation to prove their claims, which is a standard requirement of
all state and federal workers’ compensation programs. Since Part E was intended to substitute
for the state workers’ compensation benefits that claimants could have sought
DOE’s assistance in obtaining under former Part D of EEOICPA, OWCP’s application
of standard workers’ compensation principles is appropriate and no changes were
made to § 30.111(a).
Another individual suggested
that OWCP amend § 30.111(c) to state that an affidavit submitted by a claimant
is not, in and of itself, sufficient to establish a period of alleged
employment. Section 30.111(c)
currently states that such affidavits “may be relied on in determining whether a
claim meets the requirements of the Act. . . .” However, since § 30.112(b)(3) already
makes clear that OWCP may reject a claim when the only evidence of covered
employment is a “self-serving affidavit,” the suggested change is unnecessary
and was not adopted in the final rule.
A third individual suggested that language be added to § 30.111 stating
that when OWCP requests a second opinion from a medical specialist, it will only
provide such specialist with copies of the “medical” evidence in the case file
to review instead of all “relevant” evidence in the file. This suggestion ignores the fact that
factual evidence from a case file may be highly relevant (e.g., evidence of exposure levels,
environmental assessments, etc.) to the probative value of the specialist’s
medical opinion and as a result, the requested change was not
made.
A third individual requested
that § 30.113(a) be changed to indicate that OWCP will accept various types of
“electronic” submissions in support of claims for compensation under EEOICPA,
while an advocacy group suggested that § 30.113(c) be changed due to its belief
that all statements regarding the substance of lost or destroyed factual or
medical evidence would be “self-serving” and therefore not acceptable. Both of these provisions have been in
effect since the issuance of the first final rule on
A fourth individual
disagreed with the general requirement in § 30.114 that claims for compensation
under EEOICPA be supported with medical evidence that establishes the existence
of the alleged occupational illness under Part B or covered illness under Part
E. However, these medical
requirements are derived from the statutory requirements in the Act itself and
cannot be altered through the rulemaking process. Therefore, the requested change to §
30.114 was not made.
Section
30.115
Two individuals asserted
that application of the dose reconstruction process discussed in § 30.115 of the
interim final regulations to Part E cancer claims would be neither just nor
fair, and one advocacy group asked how OWCP planned to adjudicate the claims of
employees with non-specified cancers (those not listed at § 30.5(ff)) at newly
designated Special Exposure Cohort worksites. With respect to the first of these two
concerns, the discussion of § 30.213 in the preamble to the interim final rule
described the scientific and administrative reasons why OWCP decided to use the
existing dose reconstruction process from Part B to adjudicate certain
radiogenic cancer claims filed under Part E, and the two commenters have not
presented any arguments challenging the underlying bases for that decision. As for the comment regarding OWCP’s
adjudication of non-specified cancer claims following an administrative addition
of a class of employees to the Special Exposure Cohort, this question involves
the manner in which the Department of Health and Human Services (HHS) defines
the new class of employees and the unique factual basis for its addition to the
Special Exposure Cohort. However,
since neither of these matters are within the jurisdiction of OWCP, they cannot
be addressed in the context of this rulemaking (see § 30.2(b)). For the above reasons, no changes were
made to § 30.115 in the final rule based on these three
comments.
Section
30.213
OWCP received 19 comments
regarding the operation of § 30.213 with respect to the 50 percent compensable
level of probability of causation (PoC) it will use to adjudicate claims for
radiogenic cancer under Part E of EEOICPA (three comments were received from
advocacy groups, 11 from individuals, two from congressional representatives,
one from a lay representative, and two from a single labor organization). These comments requested that OWCP lower
the compensability level below the fifty percent level that is used for Part B
claims, but gave no scientific or other rationale for setting the compensability
level at any particular point below 50 percent. Rather, the commenters base their
arguments on the fact that the statutory causation standard for Part E uses
language that differs from the language used for Part B. For the reasons set forth below, OWCP
has determined that it is more consistent with congressional intent and current
science to continue to use HHS’s regulations in making the determination
required by section 7385s-4(c)(1)(A) of the Act because those regulations
provide the only reasonable factual basis upon which OWCP can determine if it is
“at least as likely as not” that exposure to radiation at a DOE facility or RECA
section 5 facility was a “significant factor in aggravating, contributing to, or
causing” radiogenic cancer for which compensation is claimed under Part
E.
It is clear from the
scientific literature that it is not possible to definitively attribute any
individual’s cancer to any particular cause, and no commenter identified a
method of attribution. As noted in
Science Panel Report No. 6, Use of
Probability of Causation by the Veterans Administration in the Adjudication of
Claims of Injury Due to Ionizing Radiation, issued by the Committee on
Interagency Radiation Research and Policy Coordination of the Office of Science
and Technology Policy, Executive Office of the President (August 1988),
“[a]nalysis of medical findings cannot separate the ‘radiogenic cases’ from
those unrelated to radiation exposure; no ‘biological markers’ have yet been
identified that can unequivocally point to radiogenic cancers as distinct from
non-radiogenic cancers. An excess
incidence of cancer is identifiable in a statistical sense
only.”
It is, thus, not surprising
that Congress required the use of statistical probability in the determination
whether to compensate an individual with a claimed cancer under Part B. Under Part B, an individual will be
determined to have sustained “cancer in the performance of duty for purposes of
the compensation program if, and only if, the cancer [at issue] was at least as
likely as not related to employment
at the facility” (emphasis added), determined pursuant to guidelines based upon
radiation dose and “the upper 99 percent confidence interval of the probability
of causation in the radioepidemiological tables published under section 7(b) of
the Orphan Drug Act (42 U.S.C. 241 note),” as well as a number of other
factors. The technical
documentation prepared by HHS to explain the computer program used to make this
calculation similarly notes that “it is not possible to determine, for a given
individual, whether his or her cancer resulted from workplace exposure to
ionizing radiation.”
(NIOSH-Interactive RadioEpidemiological Program (IREP) Technical
Documentation,
Because it is impossible to
determine the extent to which any individual factor contributed to the
development of cancer, OWCP has concluded that the only way to comply with the
statutory mandate in Part E is, in effect, to interpret “a significant factor”
as including any factor. Accordingly, the determination made
pursuant to HHS regulations issued under Part B whether there is a 50 percent
probability that radiation was a factor in the development of cancer (i.e., that in the absence of
work-related exposure to radiation, the cancer would not have occurred at all)
will be deemed sufficient to establish that radiation was not only a factor, but
was also a significant factor “in aggravating, contributing to, or causing” the
cancer in question.
The position taken by the
commenters appears to be based on a misunderstanding of the test used by
Congress in Part B of EEOICPA for determining coverage for cancer due to
exposure to radiation. The standard
used is whether a cancer suffered by a worker is “related to” his or her
employment at a covered facility.
The commenters suggest that Part B awards benefits only for cancers
caused by exposure to radiation, while Part E was intended to award benefits
where the cancer was either caused by or contributed to by exposure to
radiation. This misunderstanding
may well stem from use of the term “probability of causation” to describe the
results of the statistical determination made by the radioepidemiological tables
used in the process. By using the
term “related to” in Part B, however, Congress encompassed all cancers for which
there is a statistical probability that exposure to radiation was a factor in
the development of the cancer.
Despite the use of the word “causation” in the term “probability of
causation,” the determination reached is not an individual determination of the
mechanism of cause and effect leading to a particular cancer, which as explained
above is not scientifically possible, but a statistical prediction of the
probability that the cancer would not have occurred in the absence of exposure
to radiation. Thus, the HHS
technical documentation describes PoC as “the likelihood that an existing cancer
resulted from that [workplace radiation] exposure.” (NIOSH-IREP Technical Documentation,
Further, it should be noted
that the epidemiological method utilized in this determination is actually far
more favorable towards claimants than merely requiring a determination that
radiation exposure was “at least as likely as not” a significant factor. The method
specified by Congress for Part B and adopted by OWCP for Part E requires that
OWCP use the upper 99 percent confidence interval to determine whether cancers
of employees are to be compensable. In essence, a confidence interval
indicates the likelihood that a statistical sample will reflect actual results
and is often demonstrated in terms of a margin of error (e.g., +/- 5 percentage points in a
poll). The precise statistical
definition of the 99 percent confidence interval is that if a study or poll were
conducted 100 times, the results would be within the sample’s margin of error 99
times and one time the results would be either higher or lower. For purposes of the calculations
performed under Parts B and/or E of EEOICPA, an upper 99 percent confidence
interval establishes a significant margin of error in favor of claimants for
whether the exposures that appeared at least as likely as not to cause cancer
actually did. That is, use of this
confidence interval means that there is only a one percent chance that the
exposure level has been underestimated and a 99 percent chance that it has been
overestimated. Because of this
extremely claimant-favorable margin of error, we believe that it is reasonable
to conclude that the use of this method for adjudicating radiogenic cancer
claims under Part E will provide compensation in any case in which it is at least as likely as not that an employee would not
have suffered cancer absent his or her employment-related exposure to
radiation.
This conclusion finds
further support in the Report of the
NCI-CDC Working Group to Revise the 1985 NIH Radioepidemiological Tables
(September 2003), which found that the PoC model was a viable method to
adjudicate claims for radiation-related instances of cancer that appropriately
summarized “the likelihood that prior radiation exposure might be causally
related to cancer occurrence.” The
report described the Department of Veterans Affairs’ use of PoC calculated at
the 99 percent credibility limit (the term used in that report for confidence
interval) as “highly unlikely to exclude persons with meritorious claims. However it is likely to award many
persons whose true [PoC’s] are very much less than 50 percent.” For example, as noted in that report,
because of the substantial margin for error established by use of the 99 percent
confidence level, a cancer that is actually nine percent likely to have been
caused by the alleged exposure, but for which data is limited, could yield a PoC
of 82 percent under the HHS PoC guidelines.
OWCP also believes that
utilizing the 50 percent PoC process for Part E is more likely to result in a
scientifically valid and consistent determination process than attempting to
reach a determination based on medical opinions from physicians that inevitably
contain a significant speculative component. Use of the PoC guidelines for claims
under both Part B and Part E allows OWCP to adjudicate the entitlement of
radiogenic cancers that are potentially compensable under both Part B and Part E
in a uniform manner. Any process
for determining coverage of claims for radiogenic cancers that would yield
inconsistent results as to whether that cancer is compensable under Parts B and
E is unlikely to be understood or accepted by claimants and other
stakeholders.
The commenters’ argument
that eligibility for a radiogenic cancer under Part E should be based on a lower
than 50 percent PoC level apparently is based on their interpretation of the
language of section 7385s-4(c)(1)(A), which requires a determination that it is
“at least as likely as not that exposure to a toxic substance at a Department of
Energy facility was a significant factor in aggravating, contributing to, or
causing” the claimed cancer. While
Congress utilized different terminology to establish the test for compensation
in Part E and Part B, the differences reflect the fact that Part B was intended
to establish narrowly drawn tests for specific medical conditions, such as
radiogenic cancer or chronic beryllium disease. Part E, on the other hand, sets forth a
broad test that must be used to determine the compensability of a virtually
unlimited array of illnesses potentially caused by exposure to the tens of
thousands of toxic substances present at Department of Energy facilities. While there is no way to distinguish
between causation and contribution in regard to cancer related to exposure to
radiation (because it is only possible to determine the statistical probability
that, absent work-related exposure to radiation, the employee in question would
not have incurred the cancer or cancers from which he or she suffered), Part E
applies to other types of illnesses for which the concept of “contribution” may
be highly relevant. Indeed, unlike
the case of radiogenic cancer, it is possible to determine that toxic exposure
contributed to a number of other illnesses or that other pre-existing illnesses
were aggravated by toxic exposure.
Therefore, the difference in the statutory language between the standard
in Part B and the standard in Part E does not indicate that Part E was intended
to establish a more lenient test, but can be explained by the fact that it was
designed to cover a wide variety of situations and circumstances, as opposed to
the more narrowly drawn Part B radiogenic cancer standard, where no difference
existed between causation and contribution.
It should also be noted that
the regulation specifies that the PoC model will be determinative under Part E
only with respect to claims where the
sole alleged condition is radiogenic cancer. When a claim for cancer under Part E
cannot be accepted based on exposure to radiation alone because the PoC was
determined to be less than 50 percent, the claimant is provided the opportunity
to establish that the cancer was caused by a combination of exposure to
radiation and exposure to one or more other toxic substances. OWCP will adjudicate those claims for
cancer allegedly due to exposure to radiation combined with exposure to one or
more other toxic substances using the eligibility criteria for other covered
illnesses in §§ 30.230 through 30.232.
As a result, no changes were made to § 30.213(c) in the final
rule.
Sections
30.230, 30.231 and 30.232
One labor organization
suggested that the statutory terms “aggravated,” “contributed to” and “caused”
from one portion of the Part E causation standard appearing in section
7385s-4(c)(1)(A) of EEOICPA be defined in § 30.230 of the final rule so it will
be “possible to determine how DOL will adjudicate claims.” However, these statutory terms have a
long and settled history in workers’ compensation law, and OWCP believes any
attempt to further define those terms (which involve matters of administrative
discretion and professional medical opinion) would only lead to increased
confusion. As a result, § 30.230
has not been amended in the final rule.
Two comments from
congressional representatives, three from advocacy groups and one from an
individual asserted that it would be extremely difficult for claimants to
satisfy their burden of proof under § 30.231 to establish both the presence of a
toxic substance and the employee’s exposure to the substance without the
development of site exposure assessments of toxic substances. OWCP shares this concern and is
committed to studying all of the available information pertaining to these sites
and making publicly available a listing of the toxic substances present at such
sites. The information compiled
from these studies will be accepted as probative evidence in determining the
eligibility of claimants, barring extraordinary and unusual circumstances, and §
30.231(b) has been modified to clarify OWCP’s policies regarding this
matter. However, the remainder of
the suggested changes to the burden of proof described in § 30.231 have not been
adopted.
One advocacy group objected
to the requirement in § 30.232(a)(2) that each claimant under Part E provide a
signed medical release authorizing the release of any diagnosis, medical opinion
or medical records documenting the employee’s alleged covered illness and that
it resulted from exposure to a toxic substance. The advocacy group is concerned that in
some cases such documents may no longer exist. OWCP is aware of this problem and has
established procedures in § 30.113 by which a claimant can nevertheless meet
this requirement through the submission of affidavits attesting to medical
evidence that was contained in documents that no longer exist. However, a signed medical release is
needed in all Part E claims so OWCP may thoroughly investigate the claim. Thus, the suggestion to drop this
requirement was not adopted. The
same advocacy group and another advocacy group suggested that the requirement
contained in § 30.232(c) that a claimant establish that a covered Part E
employee suffered an injury, illness, impairment or disease as a consequence of
a covered illness be deleted. These
commenters feel that OWCP claims examiners should have enough documentation and
medical evidence in the case file to made these determinations without requiring
the submission of additional medical evidence. However, the nature of these
consequential conditions is that they only arise subsequent to the development
of an underlying condition, thus necessitating the submission of more recent
medical evidence establishing their causal relationship to an existing covered
illness. Accordingly, the
suggestion was not adopted in the final rule.
Section
30.300
Two comments from
individuals, two from congressional representatives and one from an advocacy
group suggested that OWCP use Physicians Panels to make determinations when
there is a dispute with regard to issues of causation or the degree of
impairment. After considering the
use of Physicians Panels in the adjudication of Part E claims, OWCP decided in
the interim final rule to base the formal adjudicatory and review structure for
those claims on the same successful and streamlined structure that has been used
for Part B claims since 2001. The
use of Physicians Panels as deciding bodies for claims submitted to DOE under
former Part D of EEOICPA proved to be both inefficient and extremely
time-consuming. Nevertheless, OWCP
will use a full range of qualified medical specialists to assist in the
development of claims, especially the kind of complex cases these comments
discuss. When a claim involves
extreme complexity and multiple medical disciplines, OWCP may refer the claimant
to a panel of physicians for a medical evaluation. Once a report is received, OWCP’s
adjudicatory staff will then consider it when they make a decision on the
claim. OWCP continues to believe
that this type of claims adjudication process provides for a more efficient and
expeditious handling of medical disputes and the application of more uniform
criteria to resolve such disputes.
Thus, the suggested changes have not been adopted.
The same advocacy group
suggested that OWCP state in the regulations the processes it will follow with
respect to classified information that may be pertinent to a claim under
EEOICPA, and urged that in situations where the claimant or his or her
representative lacked the requisite security clearances, OWCP should ask the
Another advocacy group
suggested that the claims adjudication processes described in § 30.300 be
altered to include a review by an “independent entity” like an administrative
law judge. This same suggestion was
made by several commenters with respect to this section as it appeared in the
first interim final rule governing its administration of the Act that OWCP
published on May 25, 2001 (66 FR 28948).
As it noted when it subsequently published the first final rule governing
its administration of EEOICPA on December 26, 2002 (67 FR 78874), OWCP believed
that utilizing administrative law judges or another type of independent review
body would unnecessarily complicate and delay the claims adjudication process to
the detriment of claimants. The
commenter did not present any new
reason not previously considered by OWCP when it originally decided to retain
the adjudicatory structure described in § 30.300, or any evidence of problems
with it since its inception in 2001.
Therefore, the suggested change to this section of the regulations was
not adopted.
Sections
30.301 and 30.302
One advocacy group suggested
that OWCP extend the ability to request issuance of a subpoena to include Part E
claims as well as Part B claims, and that this ability should be extended to all
stages of the claims adjudication process.
Section 30.301 indicates that a claimant may request that a Final
Adjudication Branch (FAB) reviewer issue a subpoena in connection with a claim
under Part B of EEOICPA. The
statutory authority underlying this section is derived from section 7384w, which
only applies to claims filed under Part B; Part E does not contain a similar
provision. Therefore, OWCP does not
have authority to extend the ability to request a subpoena to claimants under
Part E. Further, OWCP has found it
to be more efficient to limit the use of subpoenas by claimants to the portion
of the claims adjudication process that includes the right to request an oral
hearing, i.e., the portion before the
FAB. OWCP claims examiners
regularly assist claimants in obtaining relevant documents and information in
the early development of claims under EEOICPA, and adding subpoena requests to
this assistance would not appear to be either efficient or productive. Therefore, the suggested changes to §
30.301 have not been adopted.
One attorney suggested that
§ 30.302 be modified so that claimants will be relieved of their obligation to
pay the costs associated with subpoenas they have requested when the subpoenaed
witness submits evidence into the case record that is relevant to the claimant’s
case and where the witness failed before the hearing to provide written evidence
after being requested to provide such evidence by the claimant. OWCP believes that the suggested
modification erroneously presumes that there will likely be situations where a
witness will refuse to provide requested evidence without issuance of a subpoena
by a FAB reviewer. This has not
been the experience of OWCP in other benefit programs it administers, and OWCP
does not contemplate that it will occur in its future administration of Part
B. Up to the present time, OWCP has
not encountered significant difficulty obtaining the factual or medical evidence
necessary for it to adjudicate these claims, and there is no reason to think
that these sorts of difficulties will occur in the future. Therefore, the suggestion to modify §
30.302 was not adopted in the final rule.
Section
30.303
DOE commented that the
60-day period within which it was required to respond to a request from OWCP for
information or documents relevant to a claim under Part E of the Act in § 30.303
was unreasonable, and noted that it would not be able to respond to such a
request in a timely manner if the evidence needed to be reviewed for
declassification purposes. As an
alternative, DOE proposed that the standard for compliance with such a request
be “as soon as possible.” While it
does not dispute the validity of this concern, OWCP believes that the suggested
proposal would effectively remove the time period for response from §
30.303. However, in order to
accommodate DOE’s belief that it requires additional time to comply with these
necessary requests, OWCP has amended § 30.303(a) to provide DOE with 90 days
within which to respond.
Sections
30.307 and 30.316
One attorney suggested that
§§ 30.307(a) and 30.316(e) be amended to provide that a copy of the recommended
decision and the final decision be sent to both the claimant and the claimant’s
representative. These sections
currently provide that the recommended decision and final decision be sent to
the claimant, unless he or she has a representative. In such a case, the recommended decision
and final decision are to be sent only to the representative. OWCP believes that these suggestions
have merit, and also notes that this has been the administrative practice of the
program for some time. Thus, §§
30.307(a) and 30.316(e) have been amended in the final rule to provide that OWCP
will send a copy of the recommended decision and the final decision on a claim
to both the claimant and the claimant’s representative, if
any.
Section
30.315
One attorney suggested that
§ 30.315 be amended to permit, at the discretion of the FAB reviewer, a
postponement of a hearing if the claimant’s representative provides reasonable
notice that the representative has a medical reason that prevents his or her
attendance at the claimant’s hearing.
The interim final rule permits such a postponement where the claimant is
prevented from attending the hearing for medical reasons, and it is the current
practice of OWCP to permit such postponements for representatives whose
attendance is prevented for the same reasons. Thus, § 30.315(b) has been amended as
suggested by the commenter.
Section
30.320
One attorney suggested that
§ 30.320(b) be amended to require the reopening of a final adverse decision on a
claim if the claimant submits new evidence of a medical condition or discovers
additional medical reports. The
section currently requires the Director for Energy Employees Occupational
Illness Compensation to a reopen a final decision on a claim if he concludes
that the claimant has submitted new and material evidence with regard to either
covered employment or exposure to a toxic substance, or identifies either a
material change in the PoC guidelines, a material change in the dose
reconstruction methods or a material addition of a class of employees to the
Special Exposure Cohort. The
experience of OWCP with respect to the processing and adjudicating of claims
based on occupational or covered illnesses is that new medical evidence of a
condition is easily obtained and, upon consideration, rarely sufficient to
warrant the reversal of an earlier determination regarding a claimed
condition. To permit an automatic
reopening of a final decision based on such evidence would inevitably lead to
numerous frivolous reopenings and the attendant administrative inefficiencies
would deprive claimants with meritorious claims of the opportunity to have those
claims adjudicated in a timely manner.
It should be noted, however, that claims may be reopened on the basis of
new medical evidence by the Director under § 30.320(a), which permits the
Director, at his discretion, to reopen a final decision at any time. For these reasons, the suggestion
regarding § 30.320(b) has not been adopted.
Sections
30.400, 30.403, 30.404 and 30.405
OWCP received three comments
from advocacy groups, one from an attorney and two from congressional
representatives objecting to the wording in §§ 30.400, 30.403, 30.404 and 30.405
that suggested that there was no way for a claimant to administratively
challenge a denial of a particular medical benefit. The wording in question was intended to
describe the process that OWCP’s medical billing contractor uses to inform
claimants of decisions on medical bills that are submitted for payment. However, this wording incorrectly
suggested that there was no administrative method by which a claimant could
challenge an adverse medical billing determination by OWCP’s contractor. To rectify this situation, and as
suggested by the commenters, §§ 30.400, 30.403, 30.404 and 30.405 have been
changed to indicate that a claimant may administratively challenge an adverse
medical billing determination by utilizing the internal adjudicatory processes
described in subpart D of the regulations.
Sections
30.410 and 30.411
One advocacy group asked
that OWCP clarify the provisions in §§ 30.410(b) and 30.411(c) regarding
disruptions of directed medical examinations. The provisions in question are intended
to remind employees and their representatives that these medical examinations
are under the control of medical professionals and are not, therefore, a proper
forum for disputing aspects of individual claim adjudications. These physicians have been asked to
conduct an examination at the request of OWCP in order to further clarify
aspects of an employee’s alleged medical condition, not to treat the employee,
and therefore they do not have the type of ethical obligations regarding the
employee that would otherwise naturally arise with a normal “doctor-patient”
relationship. Since any attempt to
interfere with a directed examination would disrupt the purpose of the
examination, § 30.410(b) and § 30.411(c) set out the consequences of taking such
actions, and have not been altered in the final rule.
This same advocacy group
disagreed with § 30.411(b), which states that when OWCP finds that a conflict in
the medical evidence exists, OWCP will select a third physician to conduct a
referee examination that resolves such conflict. This process has been in place since the
inception of OWCP’s administration of Part B, and was not altered in any way
with the promulgation of the interim final rule. Further, this same process has been used
successfully in other benefit programs administered by OWCP. Accordingly, § 30.411(b) was not
modified in the final rule.
The same advocacy group and
another advocacy group criticized the absence of any “conflict of interest”
provisions with respect to physicians in the interim final rule. These comments asserted that it was
important that OWCP indicate that physicians involved in the claims adjudication
process who submitted medical evidence upon which OWCP claims examiners would
make determinations on claims would be subject to some sort of constraints
regarding such matters as prior involvement with a claimant, former work for a
claimant’s employer, etc. OWCP
agrees with the general thrust of these comments, and has added provisions to §§
30.410 and 30.411 that indicate that physicians who perform directed medical
examinations at the request of OWCP in connection with the claims adjudication
process will be subject to “conflict of interest” standards devised by OWCP to
ensure their compliance with ethical standards of professional
conduct.
Sections
30.500 and 30.501
A total of 521 comments
objecting to the definitions of “covered” child and “surviving spouse” for the
purposes of Part E in § 30.500(a) were received from 502 individuals and one lay
representative (several individual commenters submitted multiple comments on
this issue). While the definition
of a “surviving spouse” is the same one that applies to Part B claims, a
“covered” child under Part E must meet the same definition of a “child” used in
Part B and, as of the date of the covered Part E employee’s death, be either
under the age of 18, under the age
of 23 and a full-time student who was continuously enrolled in one or more
educational institutions since attaining the age of 18 years, or any age and
incapable of self-support. These
definitions merely follow, as they must, the definitions for these two terms
that appear in section 7385s-3(d).
Since these terms cannot be altered through the rulemaking process, the
suggestions were not adopted and no changes were made to §
30.500(a).
The same lay representative
and two of the same individuals also objected to the order of precedence for
survivors under Part E that is set out in § 30.501(b) and argued that a
surviving spouse should not be required to share an award with children of a
deceased Part E employee under any circumstances. This section states that if there is a
surviving spouse and at least one “covered” child of a deceased covered Part E
employee who is living at the time of payment and who is not a recognized
natural child or adopted child of such surviving spouse, half of the payment is
made to the surviving spouse and the other half is shared equally among all
“covered” children of the employee who are living at the time of payment. As was the case with the survivor
definitions discussed in the preceding paragraph, the regulatory order of
precedence for survivors under Part E of the Act merely tracks the statutory
order of precedence contained in section 7385s-3(c)(3) of EEOICPA. Since the order of precedence for
survivors under Part E cannot be modified by regulation, the suggestion was not
adopted.
Section
30.505
Two advocacy groups suggested that
the unified benefit payment processes for both Parts B and E described in §
30.505(a) be amended to require OWCP to issue a “partial” award of $12,500 to
covered Part E employees at the time it determines that they have contracted a
covered illness, and to determine the balance of any compensation due them
within another six months. Unlike
Part B of EEOICPA, which compensates individuals upon a finding that a covered
Part B employee contracted an occupational illness, Part E monetary compensation
can only be awarded if OWCP further determines that a covered Part E employee’s
wage-loss, impairment or death was due to his or her covered illness. Thus, this suggestion would result in
the issuance of a monetary award to a claimant before OWCP has determined that
the statutory entitlement criteria established by Part E have been met, and that
a payment is due after any required offsets have been calculated. Shortening the monetary benefit payment
processes for Part E as suggested by these two commenters would violate the
explicit terms of EEOICPA, and therefore the suggestions to change § 30.505(a) have not been
adopted.
One labor organization
suggested that § 30.505(d) be amended to permit a claimant to receive up to the
$250,000 maximum aggregate compensation payable under Part E for both wage-loss
and impairment, for each of his or her covered illnesses. As OWCP noted in the preamble discussion
of this provision of the interim final rule, 42 U.S.C. 7385s-12 “limits the
aggregate compensation (other than
medical
benefits) that OWCP may pay under Part E to all claimants for each individual
whose illness or death serves as a basis for compensation or benefits under Part
E to a total of $250,000. This is
the only reading of the statutory language that is consistent with the statutory
requirement that the computation of both impairment benefits and wage-loss
benefits under [section] 7385s-2 be based upon impairment or wage-loss that is
‘the result of any covered illness.’
This reading is also consistent with congressional intent, as reflected
in the Conference Report for Public Law 108-375, which states that the ‘maximum
aggregate benefit available under [Part] E of EEOICPA is $250,000.’ See H.R. Conf. Rep. No. 108-767, at 894
(2004).” Thus, the suggested
changes have not been adopted.
Section
30.509
Two advocacy groups
asked why § 30.509(c) indicates that OWCP will only make an impairment
determination for a deceased Part E employee if an eligible survivor makes an
election to receive the compensation of the employee as permitted by section
7385s-1(2)(B) of EEOICPA, when the Conference Report states that survivors under
Part E are to receive a minimum lump-sum payment of $125,000. These comments are based on a
misunderstanding of the operation of § 30.509, which describes the very limited
universe of survivors who are eligible to make the election described in section
7385s-1(2)(B), and the fact that the only survivors entitled to utilize this
election provision would not be entitled to survivor benefits because the
election is only available to survivors of a covered Part E employee who died
“from a cause other than the covered illness of the employee.” Survivors who make this election will
therefore not be eligible to receive any other compensation (such as the
$125,000 lump-sum payment) under the terms of section 7385s-3. Accordingly, the provision discussed in
§ 30.509(c) is correct, and no changes were made to this section in the final
rule.
Sections
30.513 through 30.517
One lay representative
suggested that in § 30.517, OWCP should more specifically describe the
circumstances under which it would decide to waive its statutory right to
recover an overpayment pursuant to section 7385j-2 of EEOICPA. While § 30.513 of the interim final
regulations notes the general authority of OWCP to waive recovery of an
overpayment of EEOICPA benefits, §§ 30.514 through 30.517 elaborate on that
authority with a substantial amount of detail. In light of the variety of factual
circumstances and fairness considerations that may apply in any specific case,
it is not possible to identify particular circumstances rather than general
principles concerning how this authority is to be exercised. Therefore, since §§ 30.513 through
30.517 in the interim final regulations adequately identify the standards that
OWCP will use to make these determinations without depriving OWCP of sufficient
flexibility to administer this aspect of the program, the suggested changes have
not been adopted.
Section
30.600
One individual suggested
that § 30.600(b) make it clearer that a claimant can grant a person a “power of
attorney” to act on his or her behalf, and that such person can then designate a
representative to pursue the claim under EEOICPA. OWCP believes there is merit in this
suggestion. Thus, additional
language was added to § 30.600(b) to clarify that a person who has been granted
a power of attorney by a claimant under EEOICPA may designate a representative
to pursue that claim before OWCP.
Also, one attorney suggested that OWCP change § 30.600(c)(2) to allow an
attorney or representative to complete, but not sign, a Form EN-20. OWCP believes that this suggestion has
merit, and § 30.600(c)(2) has been amended as requested.
Section
30.603
One attorney suggested that
the 10 percent limit for attorney fees for filing objections to a recommended
decision should apply to the amount of the lump-sum awarded in the final
decision. The interim final rule
currently applies this limit to the amount by which the lump-sum award is increased as a result of the objections,
and is consistent with the mandate in section 7385s-9 to limit such fees in Part
E cases in the same manner as Part B cases. Since Part B claimants either receive a
full lump-sum award or no award at all,
successful objections to a recommended decision provide a claimant with
an “increased” lump-sum award equal to the entire amount payable under Part
B. Section 30.603(b)(2) in the
interim final rule merely applies this same principle to Part E cases as
required by the explicit terms of the Act.
Since lump-sum awards to covered Part E employees may vary according to
their level of impairment and the extent of their wage-loss, there may be
instances where an objection to a recommended decision proposing to award
benefits under Part E may result in a final decision awarding greater benefits.
In such a case, the gain to the
covered Part E employee from the filing of the objection will not be the entire
lump-sum award; the gain will the difference between the lump-sum payment and
the amount proposed in the recommended decision. To be consistent with Part B, as
required by the statute, the attorney fees under Part E have to be limited to
the difference in lump-sum amounts.
Thus, the suggested change has not been
adopted.
This attorney and two other
attorneys also objected to the provision in § 30.603(b)(1) that does not permit
a representative to charge a two percent fee unless he or she was retained prior
to the initial filing of the claim.
This provision, however, is based on the limitation contained in 42
U.S.C. 7385g(b)(1), which states that a representative may only charge a two
percent fee “for the filing of an initial claim for payment of lump-sum
compensation. . . .” OWCP believes
that it would violate the statute to permit a representative to charge a fee of
two percent of the lump-sum award if the representative was retained after the
claim was filed. One of these two
other attorneys also suggested that the term “initial claim” be defined to
include the filing of amended claim forms, the submission of additional
documents or data, or the reopening of the claim following the issuance of a
final decision by the FAB; in the alternative, he also suggested that the
limitations described in the interim final rule not apply to claims that were
filed prior to the effective date of that rule, i.e., June 8, 2005. OWCP believes that an expansive
definition of the term “initial claim” would be inconsistent with the plain
meaning of the statute, which has not changed in this regard since section 7385g
was amended on
Section
30.609
Two advocacy groups
disagreed with the requirement in § 30.609 that claimants must report (for
offset purposes) any payments that they receive due to medical malpractice resulting from treatment of their
occupational illness or covered illness.
Such medical malpractice payments have as their genesis exposures for
which compensation is payable under Part B or Part E of EEOICPA. Under section 7385 of EEOICPA, benefits
payable under Part B or Part E must be offset to reflect these types of
payments. Thus, OWCP must be
informed of these types of payments so it can perform the statutorily mandated
offset of EEOICPA benefits, and the suggestion to eliminate this section has not
been adopted in the final rule.
Section
30.626
One lay representative and
five individuals objected to § 30.626, which describes the required coordination
of payments under Part E of EEOICPA with benefits from state workers’
compensation programs for the same covered illness or illnesses. However, OWCP is required to coordinate
Part E benefits in this manner by section 7385s-11 of the Act. Thus, the suggestion to eliminate this
section has not been adopted.
Sections
30.801, 30.805, 30.806 and 30.815
One individual suggested
that § 30.801 indicate that compensation will be provided to employees who have suffered occasional
days of lost pay due to their covered illnesses. However, Part E is not a program that
provides compensation for any
wage-loss, regardless of amount, that a covered Part E employee may experience
due to his or her covered illness.
Instead, Part E only provides compensation under a specific formula in
section 7385s-2(a)(2)(A) based on a qualifying amount of wage-loss sustained in
a given calendar year, and this formula cannot be altered in this final
rule. Thus, the suggestion has not
been adopted.
One labor organization
asserted that it is more difficult for employees who worked intermittently at
DOE facilities to establish their average annual wage and their alleged calendar
years of wage-loss through reliance on wage data received from the Social
Security Administration, and that this will result in employees having to use
the methods of § 30.806 to convince OWCP to determine a different average annual
wage and/or the extent of
compensable calendar years of wage-loss than it determined using § 30.805. However, the labor organization did not
put forward any discernable proposal to address the purported problem it raised
in its comment. While it is
possible that some employees may incur difficulties in securing the type of
records described as acceptable to OWCP in § 30.806, these difficulties alone
should not relieve them of their burden to produce records that show a level of
wage-loss sufficient to make them eligible for an award. OWCP claims examiners are instructed to
accept tax returns, pay stubs, union records and pension records as evidence of
earnings. In addition, claims
examiners can request earning records from employers. Therefore, no change has been made to §
30.806 in the final rule. However, because of these concerns, § 30.805 has
been amended in the final rule to more precisely define the term “wages.” Another labor organization
asserted that some occupations are more likely to be affected by the business
cycle than others, and asked that the wages of employees in these occupations be
determined by looking to the average wages of their “peer group” rather than to
their own individual wages. OWCP
does not believe that adjustments for fluctuations in demand for labor in
certain occupations can be made fairly or efficiently, nor does it believe that
it has the authority to make this type of change to the statutory formulae for
determining these matters by regulation.
As a result, this suggested change has also not been
adopted.
One individual suggested a
stylistic change for the wording of § 30.815(b), which he felt was too
confusing. Section 30.815(b) is
merely intended to inform readers that in most situations, OWCP will determine
the number of compensable years of wage-loss in accordance with the procedures
described in §§ 30.800 through 30.811.
The suggested change is not substantive in nature and would be, in OWCP’s
opinion, more confusing than the language that currently appears in §
30.815(b). Therefore, the suggested
change to this section has not been adopted in the final
rule.
Section
30.901
One labor organization
questioned OWCP’s ability to make the type of apportionment determinations
described in § 30.901(a) of the interim final rule and asserted that there was
no reasoned basis for allocating the cause of a permanent impairment of an organ
or body function among both compensable and non-compensable exposures. This provision was based on the somewhat ambiguous
language of section 7385s-2(a)(1)(A) of the Act, which can be read in such a way
as to require the apportionment described in § 30.901(a) of the interim final
rule. However, after carefully
considering both the dearth of support for such apportionments in the medical
literature and the practical difficulties that claims examiners would be faced
with if they were required to make these particular types of determinations,
OWCP agrees with the commenter and has decided to interpret the statutory
provision in question as not requiring such an apportionment. Thus, OWCP has modified § 30.901(a) in
the final rule to remove this requirement.
Conforming changes have also been made to §§ 30.901(d), 30.902, and
30.908(b) and (c).
One lay representative, four
individuals and the same labor organization also criticized the description of
the criteria for physicians to perform impairment evaluations set out in §
30.901(b), and suggested that OWCP modify that description to make the criteria
less restrictive so as to increase the potential pool of physicians who can
perform impairment evaluations acceptable to OWCP. After considering several different
potential criteria since the issuance of the interim final rule, OWCP believes
that it has developed criteria that will satisfy the commenters’ concern that
there will be few physicians who meet the criteria in a given locality, or that
claimants will not be able to use their local physicians to perform the testing
and measurements upon which an impairment evaluation under Part E can be
performed by a physician who meets the criteria. As changed, these criteria will now
provide that a physician has to establish (to OWCP’s satisfaction) that he or
she possesses knowledge and experience in using the American Medical
Association’s Guides to the Evaluation of
Permanent Impairment (AMA’s Guides) and/or possesses the requisite
professional background and work experience to conduct acceptable impairment
evaluations. Further, while a
claimant’s local physician may not be able to satisfy all of the criteria
described in § 30.901(b) and perform the impairment evaluation itself, the
claimant can still elect to have such a physician perform the underlying
objective testing and other procedures that another physician who does satisfy
the criteria could rely upon in arriving at an evaluation of his or her
impairment. Since OWCP has changed
the policy to which the commenters objected, no changes were made to § 30.901(b)
in the final rule.
Sections
30.905 and 30.906
One individual objected to
the provision in § 30.905(b)(1) that only impairment evaluations performed by
physicians who meet the criteria identified by OWCP will be considered
probative. The comment suggests
that impairment evaluations performed by physicians of the Radiation Exposure
Screening and Education Program (RESEP) that is administered by the Health
Resources and Services Administration within HHS be considered probative under
Part E of EEOICPA. OWCP has no
objection to claimants submitting impairment evaluations performed by a
RESEP physician, so long as that physician meets the qualifications set forth by
OWCP. The same would be true for
physicians who are affiliated with other government-sponsored health clinics.
Not all physicians, however, have
the necessary training to perform impairment evaluations (as noted above,
claimants can utilize any physician to perform the testing and measurements upon
which an impairment evaluation can be performed by a physician who meets OWCP’s
criteria). Thus, OWCP must put into
place certain criteria to identify those physicians who are qualified to perform
impairment evaluations upon which it can base its ratings. As a result, no changes to § 30.905(b)(1)
were made in the final rule. Two
other individuals objected to the requirement found in § 30.905(b)(2) that an
impairment evaluation must have been performed within one year of its submission
to OWCP for it to be considered probative in determining the permanent
impairment of a covered Part E employee and suggested that this requirement be
deleted. OWCP does not find any
merit to this objection because the Act requires OWCP to determine the minimum
impairment rating of the employee as of the time it is adjudicating the claim
for the award. In light of this
requirement, OWCP believes that it is reasonable to insist that the rating be
based on an impairment evaluation that is no more than one year old. Two advocacy groups also suggested that
this same requirement be deleted because covered Part E employees with previous
temporary impairments from which they have recovered would not receive
compensation. OWCP believes that
the reasoning behind these latter comments ignores the mandate in the Act to
compensate covered Part E employees for their permanent impairment rather than
their temporary impairment. Thus,
the suggestions to delete the requirement in § 30.905(b)(2) were not
adopted.
Two attorneys suggested that
§ 30.906 be amended to provide that OWCP will pay for the cost of any additional
impairment evaluation if such impairment evaluation increases the minimum
impairment rating. In the interim
final rule, this section states that OWCP will pay for one evaluation if it
meets the criteria set forth in § 30.905(b), and that it will also pay for any
additional impairment evaluations that it directs the employee to undergo (and
reimburse the employee for reasonable expenses, as defined in the rule, that are
associated with such an evaluation).
OWCP is not persuaded that there is a reasonable basis for paying for
additional impairment evaluations beyond those already described in § 30.906,
and therefore the suggestion was not adopted in the final
rule.
Sections
30.907 and 30.908
Two advocacy groups asserted
that § 30.907(b) did not provide a process whereby a dispute regarding a covered
Part E employee’s impairment evaluation could be resolved. While § 30.907(b) in the interim final
rule noted that the procedures for “directed medical examinations” set out in §§
30.410 and 30.411 of the regulations applied to these types of disputes, OWCP
acknowledges that it did not explicitly note that such procedures include the
process by which OWCP resolves medical disputes in general. Therefore, in order to make this
provision more clear, § 30.907(b) has been modified slightly in the final rule
to explicitly note that OWCP will resolve medical disputes regarding impairment
through the “referee examination” process set out in §
30.411.
One labor organization
objected to the provisions in § 30.908 requiring that medical evidence of
impairment submitted to the FAB in opposition to the impairment evaluation that
was relied upon in a recommended decision conform to the requirements set out in
§ 30.905(b) in order to be afforded any probative value, and noted that
claimants have the burden of proving that the new medical evidence has greater
probative value than the impairment evaluation relied upon in the recommended
decision. Requirements of this sort
that set out minimum standards for new evidence and the assumption of the burden
of proof when challenging a determination made below are standard features of
any adjudicative system, and are necessary to conserve scarce administrative
resources. OWCP does not agree that
their use in this context is either unduly burdensome on claimants or inherently
unfair in a system such as Part E.
Therefore, no changes were made to § 30.908 as a result of the
comment.
Section
30.910
Two comments from
congressional representatives, four from advocacy groups and two from
individuals objected to the provision in § 30.910(a) of the interim final rule
that an impairment that cannot be assigned a numerical percentage using the
AMA’s Guides will not be included in
a covered Part E employee’s impairment rating, and noted that the Conference
Report for Public Law 108-375 suggests that for those illnesses for which the
AMA’s Guides do not provide a method
to assign a numerical percentage, the Department should devise another method to
determine the amount of an impairment award to a covered Part E employee. See H.R. Conf. Rep. No. 108-767, at 893
(2004). However, as the Department
pointed out when it promulgated § 30.910, the plain language of section
7385s-2(b) requires OWCP to determine the amount of an impairment award to a
covered Part E employee in accordance with the AMA’s Guides and does not contain the exception
referred to in the Conference Report for “an illness for which the [AMA’s Guides] do not provide an impairment
rating. . . .” It should be noted
that this suggestion appears to be based on the assumption that the AMA’s Guides cannot be used to determine an
impairment rating for an illness unless they explicitly provide a method to
evaluate that particular illness.
However, because the Guides
evaluate the impairment of organs and body functions rather than illnesses per se, even a newly identified illness
can be evaluated using the Guides so
long as its effects on those organs and/or body functions are known and
quantifiable.
As noted above, section
7385s-2(b) of EEOICPA requires that impairment ratings “shall be determined in
accordance with the American Medical Association’s Guides to the Evaluation of Permanent
Impairment.” The discussion of
mental impairments that do not originate from documented physical dysfunctions
of the nervous system in Chapter 14 (Mental and Behavioral Disorders) of the
AMA’s Guides states that “there are
no precise measures of impairment in mental disorders. The use of percentages implies a
certainty that does not exist.”
Chapter 14 then explains that the authors of the current (fifth) edition
of the AMA’s Guides are “unaware of
data that show the reliability” of any percentages for these particular types of
impairments and that “the Committee on Disability and Rehabilitation of the
American Psychiatric Association advised Guides contributors against the use of
percentages in the chapter on mental and behavioral disorders of the fourth
edition, and that remains the opinion of the authors of the present
chapter.” In support of their
decision not to assign numerical percentages to mental impairments that do not
originate from documented physical dysfunctions of the nervous system, the
authors point out that “[n]o available empirical evidence supports any method
for assigning a percentage of impairment of the whole person” to these
disorders. Since the AMA’s Guides clearly takes the position that
there is no basis to calculate numerical percentages of mental impairment due to
mental disorders, attempting to do so by devising a rating mechanism independent
of the AMA’s Guides would violate
EEOICPA’s requirement that impairment ratings be determined “in accordance with”
the AMA’s Guides. Thus, § 30.910(b) indicates that these
types of mental impairments will not be included in an impairment rating; no
change was made to this section in the final rule.
Section
30.911
Two comments from
individuals, two from congressional representatives, two from advocacy groups
and two from attorneys questioned the appropriateness of the provision in §
30.911(a) in light of the progressive nature of the covered illnesses that would
be compensable under Part E of EEOICPA.
OWCP’s intent in the interim final rule was to apply the requirement that
an individual reach “maximum medical improvement” in order for an impairment
rating to be determined in a manner that is appropriate for the conditions
covered by EEOICPA. OWCP recognizes
that many of these covered illnesses are progressive, and that many employees
may find themselves in a situation where their accepted condition is not likely
to improve but can be expected to gradually deteriorate. The intent in the interim final rule was
to allow for minimum impairment ratings to be calculated and compensated in such
circumstances. However, since the
wording of § 30.911(a) in the interim final rule did not convey this intent as
clearly as it could have, this provision has been modified slightly in the final
rule by changing the word “change” to “improve” in the final
rule.
II. Miscellaneous
Comments
Several of the 533 timely
comments the Department received raised issues that either were not addressed in
the interim final regulations or involved extraneous matters. The Department’s analysis of these
miscellaneous comments follows:
The
OWCP received one comment
from an advocacy group pointing out that the interim final regulations did not
address the role and functions of the
The
rulemaking process
OWCP received one comment
from an attorney on a specific aspect of the rulemaking process. Without identifying any particular
provision of the regulations, the commenter opined that at least some of them
would not be comprehensible to some members of the public and should be
rewritten in “plain English.” OWCP
acknowledges that some of the regulations for Part E involve complex medical
matters or complicated arithmetic calculations. However, while these concepts can be
difficult to comprehend, OWCP went to great lengths in an effort to ensure that
the corresponding regulations in subparts I and J were written in a clear and
understandable manner. Since the
commenter neither identified a particularly incomprehensible provision of the
regulations nor provided any suggested improvements, no additional changes were
made to the regulations based on this comment.
Coverage
One DOE contractor and four
individuals made suggestions about which workers or survivors should be covered
by Part E of EEOICPA. However, the
Act mandates the categories of workers and survivors covered under Part B and
Part E and the regulations cannot be changed to either expand or restrict these
categories unless the Act is amended.
Therefore, the suggested changes have not been made in this final
rule.
III. Publication in Final
The
Department of Labor has determined, pursuant to 5 U.S.C. 553(b)(B), that good
cause exists for waiving public comment on this final rule with respect to the
following changes: (1) corrections
of typographical errors; and (2) minor wording changes and clarifications that
do not affect the substance of the regulations. For these changes, publication of a
proposed rule and solicitation of comments would be neither necessary nor
fruitful.
IV. Statutory
Authority
Section 7384d of EEOICPA
provides general statutory authority, which E.O. 13179 allocates to the
Secretary, to prescribe rules and regulations necessary for administration of
Part B of the Act. Section
7385s-10(e) also provides the Secretary with the general statutory authority to
prescribe regulations necessary for administration of Part E of the Act. Sections 7384t, 7384u and 7385s-8
provide the specific authority regarding medical treatment and care, including
authority to determine the appropriateness of charges. The Federal Claims
Collection Act of 1966, as amended (31 U.S.C. 3701 et seq.), authorizes imposition of
interest charges and collection of debts by withholding funds due the
debtor.
V. Paperwork Reduction
Act
This final rule contains
information collection requirements subject to the Paperwork Reduction Act of
1995 (PRA), 44
U.S.C. 3501 et seq. The requirements set out in §§ 30.401,
30.404, 30.420, 30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule
were both submitted to and approved by OMB under the PRA in OMB Control Nos.
1215-0054 (expires June 30, 2007), 1215-0055 (expires October 31, 2009),
1215-0137 (expires March 31, 2007), 1215-0144 (expires October 31, 2009),
1215-0176 (expires January 31, 2007), 1215-0193 (expires March 31, 2007) and
1215-0194 (expires March 31, 2007).
The requirements in §§ 30.100, 30.101, 30.102, 30.103, 30.111, 30.112,
30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215, 30.221, 30.222,
30.226, 30.231, 30.232, 30.415, 30.416, 30.417, 30.505, 30.620, 30.806, 30.905
and 30.907of this rule were also both submitted to and approved by OMB under the
PRA in OMB Control No. 1215-0197 (expires August 31,
2007).
Following publication of
this final rule, the Department plans to seek OMB approval of two new
information collections under the PRA and will issue 60-day Federal Register notices seeking public
comment on (1) a collection that will annually request updated information
relating to state workers’ compensation benefits received by EEOICPA Part E
beneficiaries; and (2) a collection annually requesting verifying information on
state workers’ compensation benefits from state authorities. These collections will implement the
Department’s responsibilities under section 7385s-11 of EEOICPA.
VI. Executive Order
12866
This rule is being treated
as a “significant regulatory action,” within the meaning of E.O. 12866, because
it is “economically significant” as defined by section 3(f)(1) of that
Order. The payment of the benefits
provided for by EEOICPA through the program administered pursuant to this
regulatory action has an annual effect on the economy of $100 million or
more. However, this rule does not
adversely affect in a material way the economy, a sector of the economy,
productivity, jobs, the environment, public health or safety, or State, local,
or tribal governments or communities, as defined by section 3(f)(1) of E.O.
12866. This rule is also a
“significant regulatory action” because it meets the criterion of section
3(f)(4) of that Order in that it raises novel or legal policy issues arising out
of the legal mandate established by EEOICPA.
Based on the factors and
assumptions set forth below, DOL’s estimate of the aggregate cost of benefits
and administrative expenses of this regulatory action implementing Part B and
Part E of EEOICPA is, in millions of dollars:
------------------------------------------------------------------------------------------------------------
FY2007 FY2008 FY2009
FY2010 FY2011
------------------------------------------------------------------------------------------------------------
Admin...................................................
$162
$163
$147
$127 $111
Benefits................................................. 1,123
861
752
656
579
------------------------------------------------------------------------------------------------------------
The
Department’s estimate of the benefits to be paid pursuant to EEOICPA and of the
administrative costs of providing those benefits is based on program experience
to date, data collected from other federal agencies, assumptions about the
incidence of cancer, covered beryllium disease, chronic silicosis and other
covered illnesses in the claimant population, life expectancy tables, dose
reconstruction acceptance rates, Physicians Panel acceptances under the former
Part D of the Act, the anticipated distribution of benefit amounts, and its
experience in estimating administrative and medical costs of workers’
compensation programs. The
Department’s benefit estimates are not based on any projections regarding the
number of future additions to the Special Exposure Cohort
(SEC).
For
Part B benefits, estimates for cancer claims are based on the actual number of
claims received by OWCP, the anticipated number of future claims, and the
historical approval rates for both SEC and non-SEC claims. Part B benefit
estimates for beryllium exposure are based on the actual number of such claims
received by OWCP, anticipated future claims, and the historical approval
rate. Benefit estimates for chronic silicosis are based on similar
factors. Benefit estimates for claims that require receipt of an award
from DOJ under section 5 of RECA are based on historical claim receipts and
include the amounts awarded by DOJ under RECA but paid from the compensation
fund. Medical benefits for living employees eligible under Part B are
computed using an average of $10,000 per year.
Part E benefit estimates for Part E cases are based on cases received by OWCP to
date, future expected receipts, and the average Part B approval rate. The
benefit amounts for Part E are calculated based on an estimated distribution of
approved claims with varying degrees of compensable impairment and wage-loss,
with an average benefit amount of $135,000 and average medical costs of $10,000
per year for each eligible living employee. Additional Part E benefits for
individuals who are determined to be eligible RECA section 5 uranium workers are
computed based upon the number of such claims received to date and the expected
number of such claims in the future.
Administrative cost
estimates were developed based upon OWCP’s experience to date in administering
Part B and the other workers’ compensation programs that fall within its area of
administrative responsibility, using calculations of the number of incoming
claims and forecasting the necessary full-time equivalents and other resources
that are necessary to efficiently administer the program.
No more extensive economic
impact analysis of this rule is necessary because this regulatory action only
addresses the transfer of funds from the federal government to individuals who
qualify under EEOICPA and to providers of medical services in that program. This regulatory action has no affect on
the functioning of the economy and private markets, on the health and safety of
the general population, or on the natural environment. In addition, because this rule
implements a statutory mandate, there are no feasible alternatives to this
regulatory action. Finally, to the
extent that policy choices have been made in interpreting statutory terms, those
choices have no significant impact on the cost of this regulatory action. Such policy choices may affect who will
be entitled to receive benefits (such as covered Part E employees with unratable
impairments due to a covered illness), but will not have a significant impact on
the number of eligible Part B or E beneficiaries or the level of benefits to
which they are entitled.
OMB has reviewed the rule
for consistency with the President’s priorities and the principles set forth in
E.O. 12866.
VII. Small Business Regulatory Enforcement
Fairness Act
As required by Congress
under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801 et seq.), the Department will
report to Congress promulgation of this final rule prior to its effective
date. The report will state that
the Department has concluded that this final rule is a “major rule” because it
will likely result in an annual effect on the economy of $100 million or
more.
VIII. Unfunded Mandates Reform Act of
1995
Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.) directs agencies to assess the
effects of federal regulatory actions on state, local, and tribal governments,
and the private sector, “other than to the extent that such regulations
incorporate requirements specifically set forth in law.” For purposes of the Unfunded Mandates
Reform Act, this final rule does not include any federal mandate that may result
in increased annual expenditures in excess of $100 million by state, local or
tribal governments in the aggregate, or by the private
sector.
IX. Regulatory Flexibility
Act
The Department believes that
this rule has “no significant economic impact upon a substantial number of small
entities” within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). The provisions of
this rule that apply cost-control measures to payments for medical expenses are
the only ones that could have a monetary effect on small businesses, and have
been in effect since OWCP began administration of Part B of EEOICPA on July 31, 2001. The economic effect of these
cost-control measures are not significant for a substantial number of those
businesses who participate in the program under Parts B and E of EEOICPA,
however, because no one business bills a significant amount to OWCP for
EEOICPA-related services, and the monetary effect on bills that are submitted,
while a worthwhile savings for the Government in the aggregate, are not significant for any individual business
affected.
The cost-control provisions
are: (1) a set schedule of maximum
allowable fees for professional medical services; (2) a set schedule for payment
of pharmacy bills; and (3) a prospective payment system for hospital inpatient
services. The methodologies used
for the first two of these provisions were explained in the text of the preamble
to two earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 28948)
and 2002 (67 FR 78874), which essentially adopted payment systems that are
prevalent in the industry. Their
adoption for use in connection with OWCP’s administration of Part E of the
Act results in continued
efficiencies for the Government and providers. The Government benefits because OWCP did not develop
new cost containment measures for Part E claims, but rather adopted existing and
well-recognized measures that were already in place. The providers benefit because submitting
a bill and receiving a payment is almost the same as submitting it to Medicare,
a program with which they are already familiar and have existing systems in
place for billing—they do not have to incur unnecessary administrative costs to
learn a new process because the EEOICPA bill process for Part E claims is
identical to the bill process that applies to Part B claims, and is not readily
distinguishable from the Medicare billing process. Similarly, pharmacies are familiar with
billing through clearing houses and having their charges subject to limits by
private insurance carriers. By
adopting private sector uniform billing requirements and a familiar cost control
methodology, OWCP has not altered the billing environment with which pharmacies
are already familiar. The methods
chosen, therefore, represent systems familiar to the providers. The third of these three provisions does
not have an effect on a substantial number of “small entities” under Small
Business Administration (SBA) standards, since most hospitals providing services
for medical conditions covered by EEOICPA have annual receipts that exceed the
set maximum.
The implementation of these
cost-control methods does not have a significant effect on any single medical
professional or pharmacy since they are already used by Medicare, CHAMPUS, and
the Departments of Labor and Veterans Affairs, among Government
entities, and by private insurance carriers. In actual terms, the amount by which
these provider bills are reduced does not have a significant impact on any one
small entity since these charges are currently being processed by other payers
applying similar cost-control provisions.
The costs to providers whose charges are reduced also are relatively
small because EEOICPA bills simply do not represent a large share of any single
provider’s total business. Since
the small universe of potential claimants is spread across the United States and
this bill processing system covers only those employees who have sustained an
occupational illness or a covered illness and require medical treatment on or
after October 30, 2000, the number of bills submitted by any one small entity
which may be subject to these provisions is likely to be very small. Therefore, the “cost” of this rule to
any one pharmacy or medical professional is negligible. On the other hand, OWCP reaps
substantial aggregate cost savings that benefit both OWCP (by strengthening the
integrity of the program) and the taxpayers to whom the costs of the program are
eventually charged.
The Assistant Secretary for
Employment Standards has certified to the Chief Counsel for Advocacy of the SBA
that this rule does not have a significant impact on a substantial number of
small entities. The factual basis
for this certification has been provided above. Accordingly, no regulatory impact
analysis is required.
X. Executive Order 12988 (Civil Justice
Reform)
This final rule has been
drafted and reviewed in accordance with E.O. 12988 and will not unduly burden
the federal court system. While
Part B of EEOICPA does not provide any specific procedures that claimants under
that Part must follow in order to seek review of decisions on their claims, Part
E specifies that claimants under that Part have 60 days to file petitions for
review of decisions on their claims in the United States district courts, and
mandates the use of an “arbitrary and capricious” standard of review. It is reasonably likely that some
EEOICPA claimants will seek review of adverse decisions in
XI. Executive Order 13045 (Protection of
Children from Environmental, Health Risks and Safety Risks)
In accordance with E.O.
13045, the Department has evaluated the environmental health and safety effects
of this rule on children. The
Department has determined that the final rule will have no effect on
children.
XII. Executive Order 13132
(Federalism)
The Department has reviewed
this final rule in accordance with E.O. 13132 and has determined that it does
not have any “federalism implications.”
The final rule does not “have substantial direct effects on the States,
on the relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.”
XIII. Executive Order 13211 (Actions
Concerning Regulations that Significantly Affect Energy Supply, Distribution, or
Use)
In accordance with E.O.
13211, the Department has evaluated the effects of this final rule on energy
supply, distribution or use, and has determined that this rule is not likely to
have a significant adverse effect on them.
XIV. Submission to Congress and the General
Accountability Office
In accordance with the Small
Business Regulatory Enforcement Fairness Act of 1996, the Department will submit
to each House of the Congress and to the Comptroller General a report regarding
the issuance of this final rule prior to the effective date set forth at the
outset of this notice. The report
will note that this rule constitutes a “major rule” as defined by 5 U.S.C.
804(2).
XV.
Catalog of Federal Domestic Assistance Number
This program is listed in the
Catalog of Federal Domestic Assistance as No. 17.310.
List
of Subjects
20
CFR Part 1
Organization and functions
(Government agencies).
20
CFR Part 30
Administrative practice and
procedure, Cancer, Claims, Kidney Diseases, Leukemia, Lung Diseases, Miners,
Radioactive Materials, Tort claims, Underground mining, Uranium, Workers’
Compensation.
Text
of the Rule
For the reasons set forth in
the preamble, 20 CFR Chapter 1 is amended as follows:
SUBCHAPTER
A—ORGANIZATION AND PROCEDURES
1. Part 1 is revised to read as
follows:
PART
1—PERFORMANCE OF FUNCTIONS
Sec.
1.1 Under what authority was the
Office of Workers’ Compensation Programs established?
1.2 What functions are assigned to
OWCP?
1.3 What rules are contained in this
chapter?
1.4 Where are other rules concerning
OWCP functions found?
1.5 When was the former Bureau of
Employees’ Compensation abolished?
1.6 How were many of OWCP’s current
functions administered in the past?
Authority: 5 U.S.C. 301,
8145 and 8149 (Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953
Comp., p. 1004, 64 Stat. 1263); 42 U.S.C. 7384d and 7385s-10; Executive Order
13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor’s Order No. 13-71, 36 FR 8155;
Employment Standards Order No. 2-74, 39 FR 34722.
§
1.1 Under what authority was the
Office of Workers’ Compensation Programs established?
The Assistant Secretary of
Labor for Employment Standards, by authority
vested in him by the Secretary of Labor in Secretary’s Order No. 13-71
(36 FR 8755), established in the Employment Standards Administration an Office
of Workers’ Compensation Programs (OWCP) by Employment Standards Order No. 2-74
(39 FR 34722). The Assistant
Secretary subsequently designated as the head thereof a Director who, under the
general supervision of the Assistant Secretary, administers the programs
assigned to OWCP by the Assistant Secretary.
§
1.2 What functions are assigned to
OWCP?
The Assistant Secretary of
Labor for Employment Standards has delegated authority and assigned
responsibility to the Director of OWCP for the Department of Labor’s programs under the following
statutes:
(a) The Federal Employees’ Compensation Act,
as amended and extended (5 U.S.C. 8101 et
seq.), except 5 U.S.C. 8149 as it pertains to the Employees’ Compensation
Appeals Board.
(b) The War Hazards Compensation Act (42
U.S.C. 1701 et
seq.).
(c) The War Claims Act (50 U.S.C. App.
2003).
(d) The Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities, pursuant to
Executive Order 13179 (“Providing Compensation to America’s Nuclear Weapons
Workers”) of December 7, 2000, assigned to the Secretary of Health and Human
Services, the Secretary of Energy and the Attorney
General.
(e) The Longshore and Harbor Workers’
Compensation Act, as amended and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with respect to
administrative law judges in the Office of Administrative Law Judges; 33 U.S.C.
921(b) as it pertains to the Benefits Review Board; and activities, pursuant to
33 U.S.C. 941, assigned to the Assistant Secretary of Labor for Occupational
Safety and Health.
(f) The Black Lung Benefits Act, as amended
(30 U.S.C. 901 et
seq.).
§
1.3 What rules are contained in
this chapter?
The rules in this chapter
are those governing the OWCP functions under the Federal Employees’ Compensation
Act, the War Hazards Compensation Act, the War Claims Act and the Energy
Employees Occupational Illness Compensation Program Act of
2000.
§
1.4 Where are other rules
concerning OWCP functions found?
(a) The rules of the OWCP governing its
functions under the Longshore and Harbor Workers’ Compensation Act and its
extensions are set forth in subchapter A of chapter VI of this
title.
(b) The rules of the OWCP governing its
functions under the Black Lung Benefits Act program are set forth in subchapter
B of chapter VI of this title.
(c) The rules and regulations of the
Employees’ Compensation Appeals Board are set forth in chapter IV of this
title.
(d) The rules and regulations of the
Benefits Review Board are set forth in Chapter VII of this
title.
§
1.5 When was the former Bureau of
Employees’ Compensation abolished?
By Secretary of
Labor’s Order issued
September 23, 1974 (39 FR 34723), issued concurrently with Employment Standards
Order 2-74 (39 FR 34722), the Secretary revoked the prior Secretary’s Order No.
18-67 (32 FR 12979), which had delegated authority and assigned responsibility
for the various workers’ compensation programs enumerated in § 1.2, except the
Black Lung Benefits Program and the Energy Employees Occupational Illness
Compensation Program not then in existence, to the Director of the former Bureau
of Employees’ Compensation.
§
1.6 How were many of OWCP’s current
functions administered in the past?
(a) Administration of the Federal Employees’
Compensation Act and the Longshore and Harbor Workers’ Compensation Act was
initially vested in an independent establishment known as the U.S. Employees’
Compensation Commission. By
Reorganization Plan No. 2 of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat.
1095, effective July 16, 1946), the Commission was abolished and its functions
were transferred to the Federal Security Agency to be performed by a newly
created Bureau of Employees’ Compensation within such Agency. By Reorganization Plan No. 19 of 1950
(15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 1271), said Bureau was
transferred to the Department of Labor (DOL), and the authority formerly
vested in the Administrator, Federal Security Agency, was vested in the
Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15
FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of
Labor was authorized to make from time to
time such provisions as he shall deem appropriate, authorizing the performance
of any of his functions by any other officer, agency, or employee of the
DOL.
(b) In 1972, two separate organizational
units were established within the Bureau:
an Office of Workmen’s Compensation Programs (37 FR 20533) and an Office
of Federal Employees’ Compensation (37 FR 22979). In 1974, these two units were abolished
and one organizational unit, the Office of Workers’ Compensation Programs, was
established in lieu of the Bureau of Employees’ Compensation (39 FR
34722).
2. Subchapter C consisting of Part 30 is
revised to read as follows:
SUBCHAPTER
C—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF
2000
PART
30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES
OCCUPATIONAL
ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED
Subpart
A—General Provisions
Introduction
Sec.
30.0 What are the provisions of
EEOICPA, in general?
30.1 What rules govern the
administration of EEOICPA and this chapter?
30.2 In general, how have the tasks
associated with the administration of the EEOICPA claims process been
assigned?
30.3 What do these regulations
contain?
Definitions
30.5 What are the definitions used in
this part?
Information
in Program Records
30.10 Are all OWCP records relating to
claims filed under EEOICPA considered confidential?
30.11 Who maintains custody and control
of claim records?
30.12 What process is used by a person
who wants to obtain copies of or amend EEOICPA claim
records?
Rights
and Penalties
30.15 May EEOICPA benefits be assigned,
transferred or garnished?
30.16 What penalties may be imposed in
connection with a claim under the Act?
30.17 Is a beneficiary who defrauds the
government in connection with a claim for EEOICPA benefits still entitled to
those benefits?
Subpart
B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain
Cancer Claims
Filing
Claims for Benefits Under EEOICPA
30.100 In general, how does an employee
file an initial claim for benefits?
30.101 In general, how is a survivor’s
claim filed?
30.102 In general, how does an employee
file a claim for additional impairment or wage-loss under Part E of
EEOICPA?
30.103 How does a claimant make sure that
OWCP has the evidence necessary to process the claim?
Verification
of Alleged Employment
30.105 What must DOE do after an employee
or survivor files a claim?
30.106 Can OWCP request employment
verification from other sources?
Evidence
and Burden of Proof
30.110 Who is entitled to compensation
under the Act?
30.111 What is the claimant’s
responsibility with respect to burden of proof, production of documents,
presumptions, and affidavits?
30.112 What kind of evidence is needed to
establish covered employment and how will that evidence be
evaluated?
30.113 What are the requirements for
written medical documentation, contemporaneous records, and other records or
documents?
30.114 What kind of evidence is needed to
establish a compensable medical condition and how will that evidence be
evaluated?
Special
Procedures for Certain Radiogenic Cancer Claims
30.115 For those radiogenic cancer claims
that do not seek benefits under Part B of the Act pursuant to the Special
Exposure Cohort provisions, what will OWCP do once it determines that an
employee contracted cancer?
Subpart
C--Eligibility Criteria
General
Provisions
30.200 What is the scope of this
subpart?
Eligibility
Criteria for Claims Relating to Covered Beryllium Illness Under Part B of
EEOICPA
30.205 What are the criteria for
eligibility for benefits relating to beryllium illnesses covered under Part
B?
30.206 How does a claimant prove that the
employee was a “covered beryllium employee” exposed to beryllium dust, particles
or vapor in the performance of duty?
30.207 How does a claimant prove a
diagnosis of a beryllium disease covered under Part B?
Eligibility
Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of
EEOICPA
30.210 What are the criteria for
eligibility for benefits relating to radiogenic cancer?
30.211 How does a claimant establish that
the employee has or had contracted cancer?
30.212 How does a claimant establish that
the employee contracted cancer after beginning employment at a DOE facility, an
atomic weapons employer facility or a RECA section 5
facility?
30.213 How does a claimant establish that
the radiogenic cancer was at least as likely as not related to employment at the
DOE facility, the atomic weapons employer facility, or the RECA section 5
facility?
30.214 How does a claimant establish that
the employee is a member of the Special Exposure Cohort?
30.215 How does a claimant establish that
the employee has sustained an injury, illness, impairment or disease as a
consequence of a diagnosed cancer?
Eligibility
Criteria for Claims Relating to Chronic Silicosis Under Part B of
EEOICPA
30.220 What are the criteria for
eligibility for benefits relating to chronic silicosis?
30.221 How does a claimant prove exposure
to silica in the performance of duty?
30.222 How does a claimant establish that
the employee has been diagnosed with chronic silicosis or has sustained a
consequential injury, illness, impairment or disease?
Eligibility
Criteria for Certain Uranium Employees Under Part B of
EEOICPA
30.225 What are the criteria for
eligibility for benefits under Part B of EEOICPA for certain uranium
employees?
30.226 How does a claimant establish that
a covered uranium employee has sustained a consequential injury, illness,
impairment or disease?
Eligibility
Criteria for Other Claims Under Part E of EEOICPA
30.230 What are the criteria necessary to
establish that an employee contracted a covered illness under Part E of
EEOICPA?
30.231 How does a claimant prove
employment-related exposure to a toxic substance at a DOE facility or a RECA
section 5 facility?
30.232 How does a claimant establish that
the employee has been diagnosed with a covered illness, or sustained an injury,
illness, impairment or disease as a consequence of a covered
illness?
Subpart
D—Adjudicatory Process
30.300 What process will OWCP use to
decide claims for entitlement and to provide for administrative review of those
decisions?
30.301 May subpoenas be issued for
witnesses and documents in connection with a claim under Part B of
EEOICPA?
30.302 Who pays the costs associated with
subpoenas?
30.303 What information may OWCP request
in connection with a claim under Part E of EEOICPA?
Recommended
Decisions on Claims
30.305 How does OWCP determine
entitlement to EEOICPA compensation?
30.306 What does the recommended decision
contain?
30.307 To whom is the recommended
decision sent?
Hearings
and Final Decisions on Claims
30.310 What must the claimant do if he or
she objects to the recommended decision or wants to request a
hearing?
30.311 What happens if the claimant does
not object to the recommended decision or request a hearing within 60
days?
30.312 What will the FAB do if the claimant
objects to the recommended decision but does not request a
hearing?
30.313 How is a review of the written
record conducted?
30.314 How is a hearing
conducted?
30.315 May a claimant postpone a
hearing?
30.316 How does the FAB issue a final
decision on a claim?
30.317 Can the FAB request a further
response from the claimant or return a claim to the district
office?
30.318 Can the FAB consider objections to
HHS’s reconstruction of a radiation dose or to the guidelines OWCP uses to
determine if a claimed cancer was at least as likely as not related to
employment?
30.319 May a claimant request
reconsideration of a final decision of the FAB?
Reopening
Claims
30.320 Can a claim be reopened after the
FAB has issued a final decision?
Subpart
E—Medical and Related Benefits
Medical
Treatment and Related Issues
30.400 What are the basic rules for
obtaining medical treatment?
30.401 What are the special rules for the
services of chiropractors?
30.402 What are the special rules for the
services of clinical psychologists?
30.403 Will OWCP pay for the services of
an attendant?
30.404 Will OWCP pay for transportation
to obtain medical treatment?
30.405 After selecting a treating
physician, may an employee choose to be treated by another physician
instead?
30.406 Are there any exceptions to these
procedures for obtaining medical care?
Directed
Medical Examinations
30.410 Can OWCP require an employee to be
examined by another physician?
30.411 What happens if the opinion of the
physician selected by OWCP differs from the opinion of the physician selected by
the employee?
30.412 Who pays for second opinion and
referee examinations?
Medical
Reports
30.415 What are the requirements for
medical reports?
30.416 How and when should medical
reports be submitted?
30.417 What additional medical
information may OWCP require to support continuing payment of
benefits?
Medical
Bills
30.420 How should medical bills and
reimbursement requests be submitted?
30.421 What are the time frames for
submitting bills and reimbursement requests?
30.422 If an employee is only partially
reimbursed for a medical expense, must the provider refund the balance of the
amount paid to the employee?
Subpart
F—Survivors; Payments and Offsets; Overpayments
Survivors
30.500 What special statutory definitions
apply to survivors under EEOICPA?
30.501 What order of precedence will OWCP
use to determine which survivors are entitled to receive compensation under
EEOICPA?
30.502 When is entitlement for survivors
determined for purposes of EEOICPA?
Payment
of Claims and Offset for Certain Payments
30.505 What procedures will OWCP follow
before it pays any compensation?
30.506 To whom and in what manner will
OWCP pay compensation?
30.507 What compensation will be provided to
covered Part B employees who only establish beryllium sensitivity under Part B
of EEOICPA?
30.508 What is beryllium sensitivity
monitoring?
30.509 Under what circumstances may a survivor
claiming under Part E of the Act choose to receive the benefits that would
otherwise be payable to a covered Part E employee who is
deceased?
Overpayments
30.510 How does OWCP notify an individual
of a payment made on a claim?
30.511 What is an “overpayment” for
purposes of EEOICPA?
30.512 What does OWCP do when an
overpayment is identified?
30.513 Under what circumstances may OWCP
waive recovery of an overpayment?
30.514 If OWCP finds that the recipient
of an overpayment was not at fault, what criteria are used to decide whether to
waive recovery of it?
30.515 Is a recipient responsible for an
overpayment that resulted from an error made by OWCP?
30.516 Under what circumstances would
recovery of an overpayment defeat the purpose of the Act?
30.517 Under what circumstances would
recovery of an overpayment be against equity and good
conscience?
30.518 Can OWCP require the recipient of
the overpayment to submit additional financial
information?
30.519 How does OWCP communicate its
final decision concerning recovery of an overpayment?
30.520 How are overpayments
collected?
Subpart
G—Special Provisions
Representation
30.600 May a claimant designate a
representative?
30.601 Who may serve as a
representative?
30.602 Who is responsible for paying the
representative’s fee?
30.603 Are there any limitations on what
the representative may charge the claimant for his or her
services?
Third
Party Liability
30.605 What rights does the
30.606 Under what circumstances must a
recovery of money or other property in connection with an illness for which
benefits are payable under EEOICPA be reported to OWCP?
30.607 How is a structured settlement
(that is, a settlement providing for receipt of funds over a specified period of
time) treated for purposes of reporting the recovery?
30.608 How does the
30.609 Is a settlement or judgment
received as a result of allegations of medical malpractice in treating an
illness covered by EEOICPA a recovery that must be reported to
OWCP?
30.610 Are payments to a covered Part B
employee, a covered Part E employee or an eligible surviving beneficiary as a
result of an insurance policy which the employee or eligible surviving
beneficiary has purchased a recovery that must be reported to
OWCP?
30.611 If a settlement or judgment is
received for more than one medical condition, can the amount paid on a single
EEOICPA claim be attributed to different conditions for purposes of calculating
the amount to which the United States is subrogated?
Effect
of Tort Suits Against Beryllium Vendors and Atomic Weapons
Employers
30.615
What type of tort suits filed against beryllium vendors or atomic weapons
employers may disqualify certain claimants from receiving benefits under Part B
of EEOICPA?
30.616 What happens if this type of tort
suit was filed prior to
30.617 What happens if this type of tort
suit was filed during the period from
30.618 What happens if this type of tort
suit was filed after
30.619 Do all the parties to this type of
tort suit have to take these actions?
30.620 How will OWCP ascertain whether a
claimant filed this type of tort suit and if he or she has been disqualified
from receiving any benefits under Part B of EEOICPA?
Coordination of Part E
Benefits with State Workers’ Compensation Benefits
30.625 What does “coordination of benefits” mean
under Part E of EEOICPA?
30.626 How will OWCP coordinate compensation
payable under Part E of EEOICPA with benefits from state workers’ compensation
programs?
30.627 Under what circumstances will OWCP
waive the statutory requirement to coordinate these
benefits?
Subpart
H—Information for Medical Providers
Medical
Records and Bills
30.700 What kind of medical records must
providers keep?
30.701 How are medical bills to be
submitted?
30.702 How should an employee prepare and
submit requests for reimbursement for medical expenses, transportation costs,
loss of wages, and incidental expenses?
30.703 What are the time limitations on
OWCP’s payment of bills?
Medical
Fee Schedule
30.705 What services are covered by the
OWCP fee schedule?
30.706 How are the maximum fees
defined?
30.707 How are payments for particular
services calculated?
30.708 Does the fee schedule apply to
every kind of procedure?
30.709 How are payments for medicinal
drugs determined?
30.710 How are payments for inpatient
medical services determined?
30.711 When and how are fees
reduced?
30.712 If OWCP reduces a fee, may a
provider request reconsideration of the reduction?
30.713 If OWCP reduces a fee, may a
provider bill the employee for the balance?
Exclusion
of Providers
30.715 What are the grounds for excluding
a provider for payment under this part?
30.716 What will cause OWCP to
automatically exclude a physician or other provider of medical services and
supplies?
30.717 When are OWCP’s exclusion
procedures initiated?
30.718 How is a provider notified of
OWCP’s intent to exclude him or her?
30.719 What requirements must the
provider’s reply and OWCP’s decision meet?
30.720 How can an excluded provider
request a hearing?
30.721 How are hearings assigned and
scheduled?
30.722 How are subpoenas or advisory
opinions obtained?
30.723 How will the administrative law
judge conduct the hearing and issue the recommended
decision?
30.724 How can a party request review by
OWCP of the administrative law judge’s recommended
decision?
30.725 What are the effects of
non-automatic exclusion?
30.726 How can an excluded provider be
reinstated?
Subpart
I—Wage-Loss Determinations Under Part E of EEOICPA
General
Provisions
30.800 What types of wage-loss are compensable
under Part E of EEOICPA?
30.801 What special definitions does OWCP
use in connection with Part E wage-loss determinations?
Evidence
of Wage-Loss
30.805 What evidence does OWCP use to
determine a covered Part E employee’s average annual wage and whether he or she
experienced compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence
in support of a different determination of average annual wage and/or wage-loss
than that found by OWCP?
Determinations
of Average Annual Wage and Percentages of Loss
30.810 How will OWCP calculate the
average annual wage of a covered Part E employee?
30.811 How will OWCP calculate the
duration and extent of a covered Part E employee’s initial period of compensable
wage-loss?
30.812 May a covered Part E employee
claim for subsequent periods of compensable wage-loss?
Special
Rules for Certain Survivor Claims Under Part E of
EEOICPA
30.815 Are there special rules that OWCP
will use to determine the extent of a deceased covered Part E employee’s
compensable wage-loss?
Subpart
J—Impairment Benefits Under Part E of EEOICPA
General
Provisions
30.900 Who can receive impairment benefits under
Part E?
30.901 How does OWCP determine the extent
of an employee’s impairment that is due to a covered illness contracted through
exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as
appropriate?
30.902 How will OWCP calculate the amount of the
award of impairment benefits that is payable under Part E?
Medical
Evidence of Impairment
30.905 How may an impairment evaluation be
obtained?
30.906 Who will pay for an impairment
evaluation?
30.907 Can an impairment evaluation
obtained by OWCP be challenged prior to issuance of the recommended
decision?
30.908 How will the FAB evaluate new
medical evidence submitted to challenge the impairment determination in the
recommended decision?
Ratable
Impairments
30.910 Will an impairment that cannot be
assigned a numerical percentage using the AMA’s Guides be included in the impairment
rating?
30.911 Does maximum medical improvement always
have to be reached for an impairment to be included in the impairment
rating?
30.912 Can a covered Part E employee receive
benefits for additional impairment
following an award of such benefits by OWCP?
Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717;
42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487,
3 CFR, 2000 Comp., p. 321; Secretary of Labor’s Order No. 4-2001, 66 FR
29656.
Subpart
A—General Provisions
Introduction
§
30.0 What are the provisions of
EEOICPA, in general?
Part B of the Energy
Employees Occupational Illness Compensation Program Act of 2000, as amended
(EEOICPA or Act), 42 U.S.C. 7384 et
seq., provides for the payment of compensation benefits to covered Part B
employees and, where applicable, survivors of such employees, of the United
States Department of Energy (DOE), its predecessor agencies and certain of its
contractors and subcontractors. Part B also provides for the payment of
supplemental compensation benefits to other covered Part B employees who have
already been found eligible for benefits under section 5 of the Radiation
Exposure Compensation Act, as amended (RECA), 42 U.S.C. 2210 note, and where
applicable, survivors of such persons.
Part E of the Act provides for the payment of compensation benefits to
covered Part E employees and, where applicable, survivors of such
employees. The regulations in this
part describe the rules governing filing, processing, and paying claims for
benefits under both Part B and Part E of EEOICPA.
(a) Part B of EEOICPA provides for the
payment of either lump-sum monetary compensation for the disability of a covered
Part B employee due to an occupational illness or for monitoring for beryllium
sensitivity, as well as for medical and related benefits for such illness. Part B also provides for the payment of
monetary compensation for the disability of a covered Part B employee to
specified survivors if the employee is deceased at the time of
payment.
(b) Part E of EEOICPA provides for the
payment of monetary compensation for the established wage-loss and/or impairment
of a covered Part E employee due to a covered illness, and for medical and
related benefits for such covered illness.
Part E also provides for the payment of monetary compensation for the
death (and established wage-loss, where applicable) of a covered Part E employee
to specified survivors if the covered Part E employee is deceased at the time of
payment.
(c) All types of benefits and conditions of
eligibility listed in this section are subject to the provisions of EEOICPA and
this part.
§
30.1 What rules govern the
administration of EEOICPA and this chapter?
In accordance with EEOICPA,
Executive Order 13179 and Secretary’s Order No. 4-2001, the primary
responsibility for administering the Act, except for those activities assigned
to the Secretary of Health and Human Services (HHS), the Secretary of Energy and
the Attorney General, has been delegated to the Assistant Secretary of Labor for
Employment Standards. The Assistant
Secretary, in turn, has delegated the responsibility for administering the Act
to the Director of the Office of Workers’ Compensation Programs (OWCP). Except as otherwise provided by law, the
Director of OWCP and his or her designees have the exclusive authority to
administer, interpret and enforce the provisions of the
Act.
§
30.2 In general, how have the tasks
associated with the administration of EEOICPA claims process been
assigned?
(a) In E.O. 13179, the President assigned
the tasks associated with administration of the EEOICPA claims process among the
Secretaries of Labor,
HHS and Energy, and the Attorney General.
In light of the fact that the Secretary of Labor has been assigned primary
responsibility for administering EEOICPA, almost the entire claims process is
within the exclusive control of OWCP.
This means that all claimants file their claims with OWCP, and OWCP is
responsible for granting or denying compensation under the Act (see §§ 30.100
through 30.102). OWCP also provides
assistance to claimants and potential claimants by providing information
regarding eligibility and other program requirements, including information on
completing claim forms and the types and availability of medical testing and
diagnostic services related to occupational illnesses under Part B of the Act
and covered illnesses under Part E of the Act. In addition, OWCP provides an
administrative review process for claimants who disagree with its recommended
and final adverse decisions on claims of entitlement (see §§ 30.300 through
30.320).
(b) However, HHS has exclusive control of
the portion of the claims process under which it provides reconstructed doses
for certain radiogenic cancer claims (see § 30.115). HHS also has exclusive control of the
process for designating classes of employees to be added to the Special Exposure
Cohort under Part B of the Act, and has promulgated regulations governing that
process at 42 CFR part 83. Finally,
HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that
OWCP follows when it assesses the compensability of an employee’s radiogenic
cancer (see § 30.213). DOE and DOJ
must, among other things, notify potential claimants and submit evidence that
OWCP deems necessary for its adjudication of claims under EEOICPA (see §§
30.105, 30.112, 30.206, 30.212 and 30.221).
§
30.3 What do these regulations
contain?
This part 30 sets forth the
regulations governing administration of all claims that are filed with OWCP,
except to the extent specified in certain provisions. Its provisions are intended to assist
persons seeking benefits under EEOICPA, as well as personnel in the various
federal agencies and DOL who process claims filed under EEOICPA or who perform
administrative functions with respect to EEOICPA. The various subparts of this part
contain the following:
(a) Subpart A: the general statutory and administrative
framework for processing claims under both Parts B and E of EEOICPA. It contains a statement of purpose and
scope, together with definitions of terms, information regarding the disclosure
of OWCP records, and a description of rights and penalties involving EEOICPA
claims, including convictions for fraud.
(b) Subpart B: the rules for filing claims for
entitlement under EEOICPA. It also
addresses general standards regarding necessary evidence and the burden of
proof, descriptions of basic forms and special procedures for certain cancer
claims.
(c) Subpart C: the eligibility criteria for
occupational illnesses and covered illnesses compensable under Parts B and E of
EEOICPA, respectively.
(d) Subpart D: the rules governing the adjudication
process leading to recommended and final decisions on claims for entitlement
filed under Parts B and E of EEOICPA.
It also describes the hearing and reopening
processes.
(e) Subpart E: the rules governing medical care, second
opinion and referee medical examinations and impairment evaluations directed by
OWCP as part of its adjudication of entitlement, and medical reports and records
in general. It also addresses the
kinds of medical treatment that may be authorized and how medical bills are
paid.
(f) Subpart F: the rules relating to the payment of
monetary compensation available under Parts B and E of EEOICPA. It includes provisions on medical
monitoring for beryllium sensitivity, on the identification, processing and
recovery of overpayments of compensation, and on the maximum aggregate amount of
compensation payable under Part E.
(g) Subpart G: the rules concerning the representation
of claimants in connection with the administrative adjudication of claims before
OWCP, subrogation of the United States, the effect of tort suits against
beryllium vendors and atomic weapons employers, and the coordination of benefits
under Part E of EEOICPA with state workers’ compensation benefits for the same
covered illness.
(h) Subpart H: information for medical providers. It includes rules for medical reports,
medical bills, and the OWCP medical fee schedule, as well as the provisions for
exclusion of medical providers.
(i) Subpart I: the rules relating to the adjudication
of alleged periods of wage-loss of covered Part E employees. It also includes provisions on the use
by OWCP of Social Security Administration earnings information and certain
medical evidence to establish compensable wage-loss.
(j) Subpart J: the rules relating to the adjudication
of alleged permanent impairment due to the exposure of covered Part E employees
to toxic substances. It includes
provisions relating to the medical evaluation of ratable impairments, the rating
of progressive conditions, and qualifications of
physicians.
Definitions
§
30.5 What are the definitions used
in this part?
(a) Act or EEOICPA means the Energy Employees
Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C.
7384 et seq.).
(b) Atomic weapon means any device utilizing
atomic energy, exclusive of the means for transporting or propelling the device
(where such means is a separable and divisible part of the device), the
principle purpose of which is for use as, or for development of, a weapon, a
weapon prototype, or a weapon test device.
(c) Atomic weapons employee
means:
(1) An individual employed by an atomic
weapons employer during a period when the employer was processing or producing,
for the use by the United States, material that emitted radiation and was used
in the production of an atomic weapon, excluding uranium mining and milling;
or
(2)(i) An individual employed at a facility
that the National Institute for Occupational Safety and Health (NIOSH) reported
had a potential for significant residual contamination outside of the period
described in paragraph (c)(1) of this section;
(ii) By the atomic weapons employer that
owned the facility referred to in paragraph (c)(2)(i) of this section, or a
subsequent owner or operator of such facility; and
(iii) During a period reported by NIOSH, in
its report
dated October 2003 and titled “Report on Residual
Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities
and Beryllium Vendor Facilities,” or any update to that report,
to
have a potential for significant residual radioactive
contamination.
(d) Atomic weapons employer means any
entity, other than the
(1) Processed or produced, for use by the
(2) Is designated by the Secretary of Energy
as an atomic weapons employer for purposes of the compensation
program.
(e) Atomic weapons employer facility means
any facility, owned by an atomic weapons employer, that:
(1) Is or was used to process or produce,
for use by the United States, material that emitted radiation and was used in
the production of an atomic weapon, excluding uranium mining or milling;
and
(2) Is designated as such in the list
periodically published in the Federal
Register by DOE.
(f) Attorney General means the Attorney
General of the
(g) Benefit or Compensation means the money the
Department pays to or on behalf of either a covered Part B employee under Part
B, or a covered Part E employee under Part E, from the Energy Employees
Occupational Illness Compensation Fund.
However, the term “compensation” used in section 7385f(b) of EEOICPA
(restricting entitlement to only one payment of compensation under Part B) means
only the payments specified in section 7384s(a)(1) and in section 7384u(a). Except as used in section 7385f(b),
these two terms also include any other amounts paid out of the Fund for such
things as medical treatment, monitoring, examinations, services, appliances and
supplies as well as for transportation and expenses incident to the securing of
such medical treatment, monitoring, examinations, services, appliances, and
supplies.
(h) Beryllium sensitization or sensitivity
means that the individual has an abnormal beryllium lymphocyte proliferation
test (LPT) performed on either blood or lung lavage cells.
(i) Beryllium vendor means the specific
corporations and named predecessor corporations listed in section 7384l(6) of
the Act and any of the facilities designated as such in the list periodically
published in the Federal Register by
DOE.
(j) Chronic silicosis means a non-malignant
lung disease if:
(1) The initial occupational exposure to
silica dust preceded the onset of silicosis by at least 10 years;
and
(2) A written diagnosis of silicosis is made
by a medical doctor and is accompanied by:
(i) A chest radiograph, interpreted by an
individual certified by NIOSH as a B reader, classifying the existence of
pneumoconioses of category 1/0 or higher; or
(ii) Results from a computer assisted
tomograph or other imaging technique that are consistent with silicosis;
or
(iii) Lung biopsy findings consistent with
silicosis.
(k) Claim means a written assertion to OWCP
of an individual’s entitlement to benefits under EEOICPA, submitted in a manner
authorized by this part.
(l) Claimant means the individual who is
alleged to satisfy the criteria for compensation under the
Act.
(m) Compensation fund or fund means the fund established on the
books of the Treasury for payment of benefits and compensation under the
Act.
(n) Contemporaneous record means any
document created at or around the time of the event that is recorded in the
document.
(o) Covered beryllium illness means any of
the following:
(1) Beryllium sensitivity as established by
an abnormal LPT performed on either blood or lung lavage
cells.
(2) Established chronic beryllium disease
(see § 30.207(c)).
(3) Any injury, illness, impairment, or
disability sustained as a consequence of a covered beryllium illness referred to
in paragraphs (o)(1) or (2) of this section.
(p) Covered Part E employee means, under
Part E of the Act, a Department of Energy contractor employee or a RECA section
5 uranium worker who has been determined by OWCP to have contracted a covered
illness (see paragraph (r) of this section) through exposure at a Department of
Energy facility or a RECA section 5 facility, as
appropriate.
(q) Covered Part B employee means, under
Part B of the Act, a covered beryllium employee (see § 30.205), a covered
employee with cancer (see § 30.210(a)), a covered employee with chronic
silicosis (see § 30.220), or a covered uranium employee (see paragraph (s) of
this section).
(r) Covered illness means, under Part E of
the Act relating to exposures at a DOE facility or a RECA section 5 facility, an illness or death resulting from exposure to a
toxic substance.
(s) Covered uranium employee means, under
Part B of the Act, an individual who has been determined by DOJ to be entitled
to an award under section 5 of RECA, whether or not the individual was the
employee or the deceased employee’s survivor.
(t) Current or former employee as defined in 5
U.S.C. 8101(1) as used in § 30.205(a)(1) means an
individual who fits within one of the following listed
groups:
(1) A civil officer or employee in any
branch of the Government of the
(2) An individual rendering personal service
to the United States similar to the service of a civil officer or employee of
the United States, without pay or for nominal pay, when a statute authorizes the
acceptance or use of the service, or authorizes payment of travel or other
expenses of the individual;
(3) An individual, other than an independent
contractor or individual employed by an independent contractor, employed on the
Menominee Indian Reservation in Wisconsin in operations conducted under a
statute relating to tribal timber and logging operations on that
reservation;
(4) An individual appointed to a position on
the office staff of a former President; or
(5) An individual selected and serving as a
Federal petit or grand juror.
(u) Department means the United States
Department of Labor
(DOL).
(v) Department of Energy or DOE includes the predecessor agencies of
the DOE, including the Manhattan Engineering District.
(w) Department of Energy contractor employee
means any of the following:
(1) An individual who is or was in residence
at a DOE facility as a researcher for one or more periods aggregating at least
24 months.
(2) An individual who is or was employed at
a DOE facility by:
(i) An entity that contracted with the DOE
to provide management and operating, management and integration, or
environmental remediation at the facility; or
(ii) A contractor or subcontractor that
provided services, including construction and maintenance, at the
facility.
(x)(1) Department of Energy facility means, as
determined by the Director of OWCP, any building, structure, or
premise, including the grounds upon which such building, structure, or premise
is located:
(i) In which operations are, or have been,
conducted by, or on behalf of, the DOE (except for buildings, structures,
premises, grounds, or operations covered by E.O. 12344, dated February 1, 1982,
pertaining to the Naval Nuclear Propulsion Program); and
(ii) With regard to which the DOE has or
had:
(A) A proprietary interest;
or
(B) Entered into a contract with an entity
to provide management and operation, management and integration, environmental
remediation services, construction, or maintenance
services.
(2) DOL has adopted the determinations of
the Department of Energy regarding Department of Energy facilities that were
contained in the list of facilities published in the Federal Register on August 23, 2004 (69
FR 51825). DOL will periodically
update this list as it deems appropriate in its sole discretion by publishing a
revised list of Department of Energy facilities in the Federal Register.
(y) Disability means, for purposes of
determining entitlement to payment of Part B benefits under section 7384s(a)(1) of the Act, having been determined by OWCP to
have or have had established chronic beryllium disease, cancer, or chronic
silicosis.
(z) Eligible surviving beneficiary means any
individual who is entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and
(d) of the Act to receive a payment on behalf of a deceased covered Part B
employee or a deceased covered Part E employee.
(aa) Employee means either a current or
former employee.
(bb) Occupational illness means, under Part B
of the Act, a covered beryllium illness, cancer sustained in the performance of
duty as defined in § 30.210(a), specified cancer, chronic silicosis, or an
illness for which DOJ has awarded compensation under section 5 of
RECA.
(cc) OWCP means the Office of Workers’
Compensation Programs, United States Department of Labor. One of the four divisions of OWCP is the
Division of Energy Employees Occupational Illness
Compensation.
(dd) Physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state
law. The term “physician” includes
chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.
(ee) Qualified physician means any physician
who has not been excluded under the provisions of subpart H of this part. Except as otherwise provided by
regulation, a qualified physician shall be deemed to be designated or approved
by OWCP.
(ff) Specified cancer (as defined in section
4(b)(2) of RECA and in EEOICPA)
means:
(1) Leukemia (other than chronic lymphocytic
leukemia) provided that the onset of the disease was at least 2 years after
first exposure;
(2) Lung cancer (other than in situ lung
cancer that is discovered during or after a post-mortem
exam);
(3) Bone cancer;
(4) Renal cancers; or
(5) The following diseases, provided onset
was at least 5 years after first exposure:
(i) Multiple myeloma;
(ii) Lymphomas (other than Hodgkin’s
disease); and
(iii) Primary cancer of
the:
(A) Thyroid;
(B) Male or female
breast;
(C) Esophagus;
(D) Stomach;
(E) Pharynx;
(F) Small intestine;
(G) Pancreas;
(H) Bile ducts;
(I) Gall bladder;
(J) Salivary gland;
(K) Urinary bladder;
(L) Brain;
(M)
(N) Ovary; or
(O) Liver (except if cirrhosis or hepatitis
B is indicated).
(6) The specified diseases designated in
this section mean the physiological condition or conditions that are recognized
by the National Cancer Institute under those names or nomenclature, or under any
previously accepted or commonly used names or
nomenclature.
(gg) Survivor means:
(1) For claims under Part B of the Act, and
subject to paragraph (gg)(3) of this section, a surviving spouse, child, parent,
grandchild and grandparent of a deceased covered Part B
employee.
(2) For claims under Part E of the Act, and
subject to paragraph (gg)(3) of this section, a surviving spouse and child of a
deceased covered Part E employee.
(3) Those individuals listed in paragraphs
(gg)(1) and (gg)(2) of this section do not include any individuals not living as
of the time OWCP makes a lump-sum payment or payments to an eligible surviving
beneficiary or beneficiaries.
(hh) Time of injury
means:
(1) In regard to a claim arising out of
exposure to beryllium or silica, the last date on which a covered Part B
employee was exposed to such substance in the performance of duty in accordance
with sections 7384n(a) or 7384r(c) of the Act; or
(2) In regard to a claim arising out of
exposure to radiation under Part B, the last date on which a covered Part B
employee was exposed to radiation in the performance of duty in accordance with
section 7384n(b) of the Act or, in the case of a member of the Special Exposure
Cohort, the last date on which the member of the Special Exposure Cohort was
employed at the Department of Energy facility or the atomic weapons employer
facility at which the member was exposed to radiation; or
(3) In regard to a claim arising out of
exposure to a toxic substance, the last date on which a covered Part E employee
was employed at the Department of Energy facility or RECA section 5 facility, as
appropriate, at which the exposure took place.
(ii) Toxic substance means any material that
has the potential to cause illness or death because of its radioactive,
chemical, or biological nature.
(jj) Workday means a single workshift whether
or not it occurred on more than one calendar day.
Information
in Program Records
§
30.10 Are all OWCP records relating
to claims filed under EEOICPA considered confidential?
All OWCP records relating to
claims for benefits under EEOICPA are considered confidential and may not be
released, inspected, copied or otherwise disclosed except as provided in the
Freedom of Information Act and the Privacy Act of 1974.
§
30.11 Who maintains custody and
control of claim records?
All OWCP records relating to
claims for benefits filed under the Act are covered by the Privacy Act system of
records entitled DOL/ESA-49 (Office of Workers’ Compensation Programs, Energy
Employees Occupational Illness Compensation Program Act File). This system of records is maintained by
and under the control of OWCP, and, as such, all records covered by DOL/ESA-49
are official records of OWCP. The
protection, release, inspection and copying of records covered by DOL/ESA-49
shall be accomplished in accordance with the rules, guidelines and provisions of
this part, as well as those contained in 29 CFR parts 70 and 71, and with the
notice of the system of records and routine uses published in the Federal Register. All questions relating to access,
disclosure, and/or amendment of claims records maintained by OWCP are to be
resolved in accordance with this section.
§
30.12 What process is used by a
person who wants to obtain copies of or amend EEOICPA claim
records?
(a) A claimant seeking copies of his or her
official EEOICPA file should address a request to the District Director of the
OWCP district office having custody of the file.
(b) Any request to amend a record covered by
DOL/ESA-49 should be directed to the district office having custody of the
official file.
(c) Any administrative appeal taken from a
denial issued by OWCP under this section shall be filed with the Solicitor of
Labor in accordance
with 29 CFR 71.7 and 71.9.
Rights
and Penalties
§
30.15 May EEOICPA benefits be
assigned, transferred or garnished?
(a) Pursuant to section 7385f(a) of the Act,
no claim for EEOICPA benefits may be assigned or
transferred.
(b) Provisions of the Social Security Act
(42 U.S.C. 659) and regulations issued by the Office of Personnel Management at
5 CFR part 581 permit the garnishment of payments of EEOICPA monetary benefits
to collect overdue alimony and child support. A request to garnish a payment for
either of these purposes should be submitted to the district office that is
handling the EEOICPA claim, and must be accompanied by a copy of the pertinent
state agency or court order.
§
30.16 What penalties may be imposed
in connection with a claim under the Act?
(a) Other statutory provisions make it a
crime to file a false or fraudulent claim or statement with the federal
government in connection with a claim under the Act. Included among these provisions is 18
U.S.C. 1001. Enforcement of
criminal provisions that may apply to claims under the Act is within the
jurisdiction of the Department of Justice.
(b) In addition, administrative proceedings
may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31
U.S.C. 3801 et seq., to impose civil
penalties and assessments against persons or entities who make, submit or
present, or cause to be made, submitted or presented, false, fictitious or
fraudulent claims or written statements to OWCP in connection with a claim under
EEOICPA. The
Department’s
regulations implementing PFCRA are found at 29 CFR part
22.
§
30.17 Is a beneficiary who defrauds
the government in connection with a claim for EEOICPA benefits still entitled to
those benefits?
When a beneficiary either
pleads guilty to or is found guilty on either federal or state criminal charges
of defrauding the federal or a state government in connection with a claim for
benefits under the Act or any other federal or state workers’ compensation law,
the beneficiary forfeits (effective the date either the guilty plea is accepted
or a verdict of guilty is returned after trial) any entitlement to any further
benefits for any injury, illness or death covered by this part for which the
time of injury was on or before the date of such guilty plea or verdict. Any subsequent change in or recurrence
of the beneficiary’s medical condition does not affect termination of
entitlement under this section.
Subpart
B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain
Cancer Claims
Filing
Claims for Benefits Under EEOICPA
§
30.100 In general, how does an
employee file an initial claim for benefits?
(a) To claim benefits under EEOICPA, an
employee must file a claim in writing.
Form EE-1 should be used for this purpose, but any written communication
that requests benefits under EEOICPA will be considered a claim. It will, however, be necessary for an
employee to submit a Form EE-1 for OWCP to fully develop the claim. Copies of Form EE-1 may be obtained from
OWCP or on the Internet at www.dol.gov/esa/regs/
compliance/owcp/eeoicp/main.htm. The employee’s claim
must be filed with OWCP, but another person may do so on the employee’s
behalf.
(b) The employee may choose, at his or her
own option, to file for benefits for only certain conditions that are
potentially compensable under the Act (e.g., the employee may not want to
claim for an occupational illness or a covered illness for which a payment has
been received that would necessitate an offset of EEOICPA benefits under the
provisions of § 30.505(b) of these regulations). The employee may withdraw his or her
claim by so requesting in writing to OWCP at any time before OWCP determines his
or her eligibility for benefits.
(c) Except as provided in paragraph (d) of
this section, a claim is considered to be “filed” on the date that the employee
mails his or her claim to OWCP, as determined by postmark, or on the date that
the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a claim under
Part B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor
will a claim under Part E of
EEOICPA be considered to be “filed” earlier than October 30,
2000.
(1) The employee, or the person filing the
claim on behalf of the employee, shall affirm that the information provided on
the Form EE-1 is true, and must inform OWCP of any subsequent changes to that
information.
(2) Except for a covered uranium employee
filing a claim under Part B of the Act, the employee is responsible for
submitting with his or her claim, or arranging for the submission of, medical
evidence to OWCP that establishes that he or she sustained an occupational
illness and/or a covered illness.
This required medical evidence is
described in § 30.114 and does not refer to mere recitations of symptoms the
employee experienced that the employee believes indicate that he or she
sustained an occupational illness or a covered illness.
(d) For those claims under Part E of EEOICPA
that were originally filed with DOE as claims for assistance under former
section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is
considered to be “filed” on the date that the employee mailed his or her claim
to DOE, as determined by postmark, or on the date that the claim was received by
DOE, whichever is the earliest determinable date. However, in no event will a claim
referred to in this paragraph be considered to be “filed” earlier than
§
30.101 In general, how is a
survivor’s claim filed?
(a) A survivor of an employee who sustained
an occupational illness or a covered illness must file a claim for compensation
in writing. Form EE-2 should be
used for this purpose, but any written communication that requests survivor
benefits under the Act will be considered a claim. It will, however, be necessary for a
survivor to submit a Form EE-2 for OWCP to fully develop the claim. Copies of Form EE-2 may be obtained from
OWCP or on the Internet at
www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. The survivor’s claim must be filed with
OWCP, but another person may do so on the survivor’s behalf. Although only one survivor needs to file
a claim under this section to initiate the development process, OWCP will
distribute any monetary benefits payable on the claim among all eligible
surviving beneficiaries who have filed claims with OWCP.
(b) A survivor may choose, at his or her own
option, to file for benefits for only certain conditions that are potentially
compensable under the Act (e.g., the survivor may not want to claim for
an occupational illness or a covered illness for which a payment has been
received that would necessitate an offset of EEOICPA benefits under the
provisions of § 30.505(b) of these regulations). The survivor may withdraw his or her
claim by so requesting in writing to OWCP at any time before OWCP determines his
or her eligibility for benefits.
(c) A survivor must be alive to receive any
payment under EEOICPA; there is no vested right to such
payment.
(d) Except as provided in paragraph (e) of
this section, a survivor’s claim is considered to be “filed” on the date that
the survivor mails his or her claim to OWCP, as determined by postmark, or the
date that the claim is received by OWCP, whichever is the earliest determinable
date. However, in no event will a
survivor’s claim under Part B of the Act be considered to be “filed” earlier
than July 31, 2001, nor will a survivor’s claim under Part E of the Act be
considered to be “filed” earlier than October 30, 2000.
(1) The survivor, or the person filing the
claim on behalf of the survivor, shall affirm that the information provided on
the Form EE-2 is true, and must inform OWCP of any subsequent changes to that
information.
(2) Except for the survivor of a covered
uranium employee claiming under Part B of the Act, the survivor is responsible
for submitting, or arranging for the submission of, evidence to OWCP that
establishes that the employee upon whom the survivor’s claim is based was
eligible for such benefits, including medical evidence that establishes that the
employee sustained an occupational illness or a covered illness. This required medical evidence is
described in § 30.114 and does not refer to mere recitations by the survivor of
symptoms the employee experienced that the survivor believes indicate that the
employee sustained an occupational illness or a covered
illness.
(e) For those claims under Part E of EEOICPA
that were originally filed with DOE as claims for assistance under former
section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is
considered to be “filed” on the date that the survivor mailed his or her claim
to DOE, as determined by postmark, or on the date that the claim was received by
DOE, whichever is the earliest determinable date. However, in no event will a claim
referred to in this paragraph be considered to be “filed” earlier than
(f) A spouse or a child of a deceased DOE
contractor employee or RECA section 5 uranium worker, who is not a covered
spouse or covered child under Part E, may submit a written request to OWCP for a
determination of whether that deceased DOE contractor employee or RECA section 5
uranium worker contracted a covered illness under section 7385s-4(d) of
EEOICPA.
(1) Any such request submitted pursuant to
paragraph (f) of this section will not be considered a survivor’s claim for
benefits under Part E of the Act.
(2) As part of its consideration of any
request submitted pursuant to paragraph (f) of this section, OWCP will apply the
eligibility criteria in subpart C of this part. However, the adjudicatory procedures
contained in subpart D of this part will not apply to OWCP’s consideration of
such a request, and OWCP’s response to the request will not constitute a final
agency decision on entitlement to any benefits under
EEOICPA.
§
30.102 In general, how does an
employee file a claim for additional impairment or wage-loss under Part E of
EEOICPA?
(a) An employee previously awarded
impairment benefits by OWCP may file a claim for additional impairment
benefits. Such claim must be based
on an increase in the employee’s minimum impairment rating attributable to the
covered illness or illnesses from the impairment rating that formed the basis
for the last award of such benefits by OWCP. OWCP will only adjudicate claims for
such an increased rating that are filed at least two years from the date of the
last award of impairment benefits.
However, OWCP will not wait two years before it will adjudicate a claim
for additional impairment that is based on an allegation that the employee
sustained a new covered illness.
(b) An employee previously awarded wage-loss
benefits by OWCP may be eligible for additional wage-loss benefits for periods
of wage-loss that were not addressed in a prior claim only if the employee had
not reached his or her Social Security retirement age at the time of the prior
award. OWCP will adjudicate claims
filed on a yearly basis in connection with each succeeding calendar year for
which qualifying wage-loss under Part E is alleged, as well as claims that
aggregate calendar years for which qualifying wage-loss is
alleged.
(c) Employees should use Form EE-10 to claim
for additional impairment or wage-loss benefits under Part E of
EEOICPA.
(1) The employee, or the person filing the
claim on behalf of the employee, shall affirm that the information provided on
Form EE-10 is true, and must inform OWCP of any subsequent changes to that
information.
(2) The employee is responsible for
submitting with any claim filed under this section, or arranging for the
submission of, factual and medical evidence establishing that he or she
experienced another calendar year of qualifying wage-loss, and/or medical
evidence establishing that he or she has an increased minimum impairment rating,
as appropriate.
§
30.103 How does a claimant make
sure that OWCP has the evidence necessary to process the claim?
(a) Claims and certain required submissions
should be made on forms prescribed by OWCP. Persons submitting forms shall not
modify these forms or use substitute forms.
------------------------------------------------------------------------
Form No.
Title
------------------------------------------------------------------------
(1) EE-1............................ Claim for Benefits Under the Energy
Employees Occupational Illness
Compensation Program Act
(2) EE-2............................ Claim for Survivor Benefits
Under
the Energy Employees Occupational
Illness Compensation Program Act.
(3) EE-3............................ Employment History for a Claim
Under
the
Energy Employees Occupational
Illness Compensation Program Act
(4) EE-4............................ Employment History Affidavit for
a
Claim Under
the Energy Employees
Occupational Illness Compensation
Program Act
------------------------------------------------------------------------
(b) Copies of the forms listed in this
section are available for public inspection at the Office of Workers’
Compensation Programs, Employment Standards Administration, U.S. Department of
Labor,
eeoicp/main.htm.
Verification
of Alleged Employment
§
30.105 What must DOE do after an
employee or survivor files a claim?
(a) After it receives a claim for benefits
described in §§ 30.100 or 30.101, OWCP may request that DOE verify the
employment history provided by the claimant. Upon receipt of such a request, DOE will
complete Form EE-5 as soon as possible and transmit the completed form to
OWCP. On this form, DOE will
certify either that it concurs with the employment history provided by the
claimant, that it disagrees with such history, or that it can neither concur nor
disagree after making a reasonable search of its records and also making a
reasonable effort to locate pertinent records not already in its
possession.
(b) Claims for additional impairment or
wage-loss benefits under Part E of the Act described in § 30.102 will not
require any verification of employment by DOE, since OWCP will have made any
required findings on this particular issue when it adjudicated the employee’s
initial claim for benefits.
§
30.106 Can OWCP request employment
verification from other sources?
(a) For most claims filed under EEOICPA, DOE
has access to sufficient factual information to enable it to fulfill its
obligations described in § 30.105(a).
However, in instances where it lacks such information, DOE may arrange
for other entities to provide OWCP with the information necessary to verify an
employment history submitted as part of a claim. These other entities may consist of
either current or former DOE contractors and subcontractors, atomic weapons
employers, beryllium vendors, or other entities with access to relevant
employment information.
(b) On its own initiative, OWCP may also
arrange for entities other than DOE to perform the employment verification
duties described in § 30.105(a).
Evidence
and Burden of Proof
§
30.110 Who is entitled to
compensation under the Act?
(a) Under Part B of EEOICPA, compensation is
payable to the following covered Part B employees, or their
survivors:
(1) A “covered beryllium employee” (as
described in § 30.205(a)) with a covered beryllium illness (as defined in §
30.5(o)) who was exposed to beryllium in the performance of duty (in accordance
with § 30.206).
(2) A “covered Part B employee with cancer”
(as described in § 30.210(a)).
(3) A “covered Part B employee with chronic
silicosis” (as described in § 30.220).
(4) A “covered uranium employee” (as defined
in § 30.5(s)).
(b) Under Part E of EEOICPA, compensation is
payable to a “covered Part E employee” (as defined in § 30.5(p)), or his or her
survivors.
(c) Any claim that does not meet all of the
criteria for at least one of these categories, as set forth in the regulations
in this part, must be denied.
(d) All claims for benefits under the Act
must comply with the claims procedures and requirements set forth in subpart B
of this part before any payment can be made from the Fund.
§
30.111 What is the claimant’s
responsibility with respect to burden of proof, production of documents,
presumptions, and affidavits?
(a) Except where otherwise provided in the
Act and these regulations, the claimant bears the burden of proving by a
preponderance of the evidence the existence of each and every criterion
necessary to establish eligibility under any compensable claim category set
forth in § 30.110. Proof by a
preponderance of the evidence means that it is more likely than not that the
proposition to be proved is true.
Subject to the exceptions expressly provided in the Act and the
regulations in this part, the claimant also bears the burden of providing to
OWCP all written medical documentation, contemporaneous records, or other
records and documents necessary to establish any and all criteria for benefits
set forth in these regulations.
(b) In the event that the claim lacks
required information or supporting documentation, OWCP will notify the claimant
of the deficiencies and provide him or her an opportunity for correction of the
deficiencies.
(c) Written affidavits or declarations,
subject to penalty for perjury, by the employee, survivor or any other person,
will be accepted as evidence of employment history and survivor relationship for
purposes of establishing eligibility and may be relied on in determining whether
a claim meets the requirements of the Act for benefits if, and only if, such
person attests that due diligence was used to obtain records in support of the
claim, but that no records exist.
(d) A claimant will not be entitled to any
presumption otherwise provided for in these regulations if substantial evidence
exists that rebuts the existence of the fact that is the subject of the
presumption. Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. When such
evidence exists, the claimant shall be notified and afforded the opportunity to
submit additional written medical documentation or
records.
§
30.112 What kind of evidence is
needed to establish covered employment and how will that evidence be
evaluated?
(a) Evidence of covered employment may
include: employment records; pay
stubs; tax returns; Social Security records; and written affidavits or
declarations, subject to penalty of perjury, by the employee, survivor or any
other person. However, no one
document is required to establish covered employment and a claimant is not
required to submit all of the evidence listed above. A claimant may submit other evidence not
listed above to establish covered employment. To be acceptable as evidence, all
documents and records must be legible.
OWCP will accept photocopies, certified copies, and original documents
and records.
(b) Pursuant to §§ 30.105 and/or 30.106, DOE
or another entity verifying alleged employment shall certify that it concurs
with the employment information provided by the claimant, that it disagrees with
the information provided by the claimant, or, after a reasonable search of its
records and a reasonable effort to locate pertinent records not already in its
possession, it can neither concur nor disagree with the information provided by
the claimant.
(1) If DOE or another entity certifies that
it concurs with the employment information provided by the claimant, then the
criterion for covered employment will be established.
(2) If DOE or another entity certifies that
it disagrees with the information provided by the claimant or that after a
reasonable search of its records and a reasonable effort to locate pertinent
records not already in its possession it can neither concur nor disagree with
the information provided by the claimant, OWCP will evaluate the evidence
submitted by the claimant to determine whether the claimant has established
covered employment by a preponderance of the evidence. OWCP may request additional evidence
from the claimant to demonstrate that the claimant has met the criterion for
covered employment. Nothing in this
section shall be construed to limit OWCP’s ability to require additional
documentation.
(3) If the only evidence of covered
employment is a self-serving affidavit and DOE or another entity either
disagrees with the assertion of covered employment or cannot concur or disagree
with the assertion of covered employment, then OWCP may reject the claim based
upon a lack of evidence of covered employment.
§
30.113 What are the requirements
for written medical documentation, contemporaneous records, and other records or
documents?
(a) All written medical documentation,
contemporaneous records, and other records or documents submitted by an employee
or his or her survivor to prove any criteria provided for in these regulations
must be legible. OWCP will accept
photocopies, certified copies, and original documents and
records.
(b) To establish eligibility, the employee
or his or her survivor may be required to provide, where appropriate, additional
contemporaneous records to the extent they exist or an authorization to release
additional contemporaneous records or a statement by the custodian(s) of the
record(s) certifying that the requested record(s) no longer exist. Nothing in this section shall be
construed to limit OWCP’s ability to require additional
documentation.
(c) If a claimant submits a certified
statement, by a person with knowledge of the facts, that the medical records
containing a diagnosis and date of diagnosis of a covered medical condition no
longer exist, then OWCP may consider other evidence to establish a diagnosis and
date of diagnosis of a covered medical condition. However, if the certified statement is a
self-serving document, OWCP may reject the claim based upon a lack of evidence
of a covered medical condition.
§
30.114 What kind of evidence is
needed to establish a compensable medical condition and how will that evidence
be evaluated?
(a) Evidence of a compensable medical
condition may include: a
physician’s report, laboratory reports, hospital records, death certificates,
x-rays, magnetic resonance images or reports, computer axial tomography or other
imaging reports, lymphocyte proliferation testings, beryllium patch tests,
pulmonary function or exercise testing results, pathology reports including
biopsy results and other medical records.
A claimant is not required to submit all of the evidence listed in this
paragraph. A claimant may submit
other evidence that is not listed in this paragraph to establish a compensable
medical condition. Nothing in this
section shall be construed to limit OWCP’s ability to require additional
documentation.
(b) The medical evidence submitted will be
used to establish the diagnosis and the date of diagnosis of the compensable
medical condition.
(1) For covered beryllium illnesses,
additional medical evidence, as set forth in § 30.207, is required to establish
a beryllium illness.
(2) For chronic silicosis, additional
medical evidence, as set forth in § 30.222, is required to establish chronic
silicosis.
(3) For consequential injuries, illnesses,
impairments or diseases, the claimant must also submit a physician’s fully
rationalized medical report showing a causal relationship between the resulting
injury, illness, impairment or disease and the compensable medical
condition.
(c) OWCP will evaluate the medical evidence
in accordance with recognized and accepted diagnostic criteria used by
physicians to determine whether the claimant has established the medical
condition for which compensation is sought in accordance with the requirements
of the Act.
Special
Procedures for Certain Radiogenic Cancer Claims
§
30.115 For those radiogenic cancer
claims that do not seek benefits under Part B of the Act pursuant to the Special
Exposure Cohort provisions, what will OWCP do once it determines that an
employee contracted cancer?
(a) Other than claims for a non-radiogenic
cancer listed by HHS at 42 CFR 81.30, or claims seeking benefits under Part E of
the Act that have previously been accepted under section 7384u of the Act, or
claims previously accepted under Part B pursuant to the Special Exposure Cohort
provisions, OWCP will forward the claim package (including, but not limited to,
Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) to HHS for dose
reconstruction. At that point in
time, development of the claim by OWCP may be suspended.
(1) This package will include OWCP’s initial
findings in regard to the diagnosis and date of diagnosis of the employee, as
well as any employment history compiled by OWCP (including information such as
dates and locations worked, and job titles). The package, however, will not
constitute either a recommended or final decision by OWCP on the
claim.
(2) HHS will then reconstruct the radiation
dose of the employee, after such further development of the employment history
as it may deem necessary, and provide OWCP, DOE and the claimant with the final
dose reconstruction report. The
final dose reconstruction record will be delivered to OWCP with the final dose
reconstruction report and to the claimant upon request.
(b) Following its receipt of the
reconstructed dose from HHS, OWCP will resume its adjudication of the cancer
claim and consider whether the claimant has met the eligibility criteria set
forth in subpart C of this part.
However, during the period before it receives a reconstructed dose from
HHS, OWCP may continue to develop other aspects of a claim, to the extent that
it deems such development to be appropriate.
Subpart
C--Eligibility Criteria
General
Provisions
§
30.200 What is the scope of this
subpart?
The regulations in this
subpart describe the criteria for eligibility for benefits for claims under Part
B of EEOICPA relating to covered beryllium illness under sections 7384l, 7384n,
7384s and 7384t of the Act; for cancer under sections 7384l, 7384n, 7384q and
7384t of the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and
7384t of the Act; and for claims relating to covered uranium employees under
sections 7384t and 7384u of the Act.
These regulations also describe the criteria for eligibility for benefits
for claims under Part E of EEOICPA relating to covered illnesses under sections
7385s-4 and 7385s-5 of the Act.
This subpart describes the type and extent of evidence that will be
necessary to establish the criteria for eligibility for compensation for these
illnesses.
Eligibility
Criteria for Claims Relating to Covered Beryllium Illness Under Part B of
EEOICPA
§
30.205 What are the criteria for
eligibility for benefits relating to beryllium illnesses covered under Part B of
EEOICPA?
To establish eligibility for
benefits under this section, the claimant must establish the criteria set forth
in both paragraphs (a) and (b) of this section:
(a) The employee is a covered beryllium
employee only if the criteria in paragraphs (a)(1) and (a)(3) of this section,
or (a)(2) and (a)(3) of this section, are established:
(1) The employee is a “current or former
employee as defined in 5 U.S.C. 8101(1)” (see § 30.5(t) of this part) who may
have been exposed to beryllium at a DOE facility or at a facility owned,
operated, or occupied by a beryllium vendor; or
(2) The employee is a current or former
civilian employee of:
(i) Any entity that contracted with the DOE
to provide management and operation, management and integration, or
environmental remediation of a DOE facility; or
(ii) Any contractor or subcontractor that
provided services, including construction and maintenance, at such a facility;
or
(iii) A beryllium vendor, or of a contractor
or subcontractor of a beryllium vendor, during a period when the vendor was
engaged in activities related to the production or processing of beryllium for
sale to, or use by, the DOE, including periods during which environmental
remediation of a vendor’s facility was undertaken pursuant to a contract between
the vendor and DOE; and
(3) The civilian employee was exposed to
beryllium in the performance of duty by establishing that he or she was, during
a period when beryllium dust, particles, or vapor may have been present at such
a facility:
(i) Employed at a DOE facility (as defined
in § 30.5(x) of this part); or
(ii) Present at a DOE facility, or at a
facility owned, operated, or occupied by a beryllium vendor, because of his or
her employment by the
(b) The employee has one of the
following:
(1) Beryllium sensitivity as established by
an abnormal beryllium LPT performed on either blood or lung lavage
cells.
(2) Established chronic beryllium
disease.
(3) Any injury, illness, impairment, or
disability sustained as a consequence of the conditions specified in paragraphs
(b)(1) and (2) of this section.
§
30.206 How does a claimant prove
that the employee was a “covered beryllium employee” exposed to beryllium dust,
particles or vapor in the performance of duty?
(a) Proof of employment at or physical
presence at a DOE facility, or a facility owned, operated, or occupied by a
beryllium vendor, because of employment by the United States, a beryllium
vendor, or a contractor or subcontractor of a beryllium vendor during a period
when beryllium dust, particles, or vapor may have been present at such a
facility, may be made by the submission of any trustworthy records that, on
their face or in conjunction with other such records, establish that the
employee was employed or present at a covered facility and the time period of
such employment or presence.
(b) If the evidence shows that exposure
occurred while the employee was employed or present at a facility during a time
frame that is outside the relevant time frame indicated for that facility, OWCP
may request that DOE provide additional information on the facility. OWCP will determine whether the evidence
of record supports enlarging the relevant time frame for that
facility.
(c) If the evidence shows that exposure
occurred while the employee was employed or present at a facility that would
have to be designated by DOE as a beryllium vendor under section 7384m of the
Act to be a covered facility, and that the facility has not been so designated,
OWCP will deny the claim on the ground that the facility is not a covered
facility.
(d) Records from the following sources may
be considered as evidence for purposes of establishing employment or presence at
a covered facility:
(1) Records or documents created by any
federal government agency (including verified information submitted for security
clearance), any tribal government, or any state, county, city or local
government office, agency, department, board or other entity, or other public
agency or office.
(2) Records or documents created by any
vendor, processor, or producer of beryllium or related products designated as a
beryllium vendor by the DOE in accordance with section 7384m of the
Act.
(3) Records or documents created as a by
product of any regularly conducted business activity or by an entity that acted
as a contractor or subcontractor to the DOE.
§
30.207 How does a claimant prove a
diagnosis of a beryllium disease covered under Part B?
(a) Written medical documentation is
required in all cases to prove that the employee developed a covered beryllium
illness. Proof that the employee
developed a covered beryllium illness must be made by using the procedures
outlined in paragraphs (b), (c), or (d) of this section.
(b) Beryllium sensitivity or sensitization
is established with an abnormal LPT performed on either blood or lung lavage
cells.
(c) Chronic beryllium disease is established
in the following manner:
(1) For diagnoses on or after
(i) A lung biopsy showing granulomas or a
lymphocytic process consistent with chronic beryllium
disease;
(ii) A computerized axial tomography scan
showing changes consistent with chronic beryllium disease;
or
(iii) Pulmonary function or exercise testing
showing pulmonary deficits consistent with chronic beryllium
disease.
(2) For diagnoses before
(i) Occupational or environmental history,
or epidemiologic evidence of beryllium exposure; and
(ii) Any three of the following
criteria:
(A) Characteristic chest radiographic (or
computed tomography (CT)) abnormalities.
(B) Restrictive or obstructive lung
physiology testing or diffusing lung capacity defect.
(C) Lung pathology consistent with chronic
beryllium disease.
(D) Clinical course consistent with a
chronic respiratory disorder.
(E) Immunologic tests showing beryllium
sensitivity (skin patch test or beryllium blood test
preferred).
(d) An injury, illness, impairment or
disability sustained as a consequence of beryllium sensitivity or established
chronic beryllium disease must be established with a fully rationalized medical
report by a physician that shows the relationship between the injury, illness,
impairment or disability and the beryllium sensitivity or established chronic
beryllium disease. Neither the fact
that the injury, illness, impairment or disability manifests itself after a
diagnosis of beryllium sensitivity or established chronic beryllium disease, nor
the belief of the claimant that the injury, illness, impairment or disability
was caused by the beryllium sensitivity or established chronic beryllium
disease, is sufficient in itself to prove a causal
relationship.
Eligibility
Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of
EEOICPA
§
30.210 What are the criteria for
eligibility for benefits relating to radiogenic cancer?
(a)
To establish eligibility for benefits for radiogenic cancer under Part B
of EEOICPA, an employee or his or
her survivor must show that:
(1) The employee has been diagnosed with one
of the forms of cancer specified in § 30.5(ff) of this part;
and
(i) Is a member of the Special Exposure
Cohort (as described in § 30.214(a) of this subpart) who, as a civilian DOE
employee or civilian DOE contractor employee, contracted the specified cancer
after beginning employment at a DOE facility; or
(ii) Is a member of the Special Exposure
Cohort (as described in § 30.214(a) of this subpart) who, as a civilian atomic
weapons employee, contracted the specified cancer after beginning employment at
an atomic weapons employer facility (as defined in § 30.5(e));
or
(2) The employee has been diagnosed with
cancer; and
(i)(A) Is/was a civilian DOE employee who
contracted that cancer after beginning employment at a DOE facility;
or
(B) Is/was a civilian DOE contractor
employee who contracted that cancer after beginning employment at a DOE
facility; or
(C) Is/was a civilian atomic weapons
employee who contracted that cancer after beginning employment at an atomic
weapons employer facility; and
(ii) The cancer was at least as likely as not
related to the employment at the DOE facility or atomic weapons employer
facility; or
(3) The employee has been diagnosed with an
injury, illness, impairment or disease
that arose as a consequence of the accepted cancer.
(b)(1) To establish eligibility for benefits
for radiogenic cancer under Part E of
EEOICPA, an employee or his or her survivor must show
that:
(i) The employee has been diagnosed with
cancer; and
(A) Is/was a civilian DOE contractor
employee or a civilian RECA section 5 uranium worker who contracted that cancer
after beginning employment at a DOE facility or a RECA section 5 facility;
and
(B) The cancer was at least as likely as not
related to exposure to a toxic substance of a radioactive nature at a DOE
facility or a RECA section 5 facility; and
(C) It is at least as likely as not that the
exposure to such toxic substance(s) was related to employment at a DOE facility
or a RECA section 5 facility; or
(ii) The employee has been diagnosed with an
injury, illness, impairment or disease
that arose as a consequence of the accepted cancer.
(2) Eligibility for benefits for radiogenic
cancer under Part E in a claim that has previously been accepted under Part B
pursuant to the Special Exposure Cohort provisions is described in § 30.230(a)
of these regulations.
§
30.211 How does a claimant
establish that the employee has or had contracted cancer?
A claimant establishes that
the employee has or had contracted a specified cancer (as defined in § 30.5(ff))
or other cancer with medical evidence that sets forth an explicit diagnosis of
cancer and the date on which that diagnosis was first
made.
§
30.212 How does a claimant
establish that the employee contracted cancer after beginning employment at a
DOE facility, an atomic weapons employer facility or a RECA section 5
facility?
(a) Proof of employment by the DOE or a DOE
contractor at a DOE facility, or by an atomic weapons employer at an atomic
weapons employer facility, or at a RECA section 5 facility, may be made by the
submission of any trustworthy records that, on their face or in conjunction with
other such records, establish that the employee was so employed and the time
period(s) of such employment.
(b)(1) Except as provided in paragraph (b)(2)
of this section, if the evidence shows that exposure occurred while the employee
was employed at a facility during a time frame that is outside the relevant
period indicated for that facility, OWCP may request that DOE provide additional
information on the facility. OWCP
will determine whether the evidence of record supports enlarging the relevant
period for that facility.
(2) OWCP may choose not to request that DOE
provide additional information on an atomic weapons employer facility that NIOSH
reported had a potential for significant residual radiation contamination in its
report
dated October 2003 and titled “Report on Residual Radioactive and Beryllium
Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor
Facilities,” or any update to that report,
if the evidence referred to in paragraph (a) of this section establishes that
the employee was employed at that facility during a period when NIOSH reported
that it had a potential for significant residual radiation
contamination.
(c) If the evidence shows that exposure
occurred while the employee was employed by an employer that would have to be
designated by DOE as an atomic weapons employer under section 7384l(4) of the
Act to be a covered employer, and that the employer has not been so designated,
OWCP will deny the claim on the ground that the employer is not a covered atomic
weapons employer.
(d) Records from the following sources may
be considered as evidence for purposes of establishing employment or presence at
a covered facility:
(1) Records or documents created by any
federal government agency (including verified information submitted for security
clearance), any tribal government, or any state, county, city or local
government office, agency, department, board or other entity, or other public
agency or office.
(2) Records or documents created as a
byproduct of any regularly conducted business activity or by an entity that
acted as a contractor or subcontractor to the DOE.
§
30.213 How does a claimant
establish that the radiogenic cancer was at least as likely as not related to
employment at the DOE facility, the atomic weapons employer facility, or the
RECA section 5 facility?
(a) HHS, with the advice of the Advisory
Board on Radiation and Worker Health, has issued regulatory guidelines at 42 CFR
part 81 that OWCP uses to determine whether radiogenic cancers claimed under
Parts B and E were at least as likely as not related to employment at a DOE
facility, an atomic weapons employer facility, or a RECA section 5 facility, as
appropriate. Persons should consult
HHS’s regulations for information regarding the factual evidence that will be
considered by OWCP, in addition to the employee’s radiation dose reconstruction
that will be provided to OWCP by HHS, in making this particular factual
determination.
(b) HHS’s regulations satisfy the legal
requirements in section 7384n(c) of the Act, which also sets out OWCP’s
obligation to use them in its adjudication of claims for radiogenic cancer filed
under Part B of the Act, and provide the factual basis for OWCP to determine if
the “probability of causation” (PoC) that an employee’s cancer was sustained in
the performance of duty is 50% or greater (i.e., it is “at least as
likely as not” causally related to employment), as required under section
7384n(b).
(c) OWCP also uses HHS’s regulations when it
makes the determination required by section 7385s-4(c)(1)(A) of the Act, since
those regulations provide the factual basis for OWCP to determine if “it is at
least as likely as not” that exposure to radiation at a DOE facility or RECA
section 5 facility, as appropriate, was a significant factor in aggravating,
contributing to, or causing the employee’s radiogenic cancer claimed under Part
E. For cancer claims under Part E,
if the PoC is less than 50% and the claimant alleges that the employee was
exposed to additional toxic substances, OWCP will determine if the claim is
otherwise compensable pursuant to § 30.230(d) of this part.
§
30.214 How does a claimant
establish that the employee is a member of the Special Exposure
Cohort?
(a) For purposes of establishing eligibility
as a member of the Special Exposure Cohort (SEC) under § 30.210(a)(1), the
employee must have been a DOE employee, a DOE contractor employee, or an atomic
weapons employee who meets any of the following
requirements:
(1) The employee was so employed for a
number of workdays aggregating at least 250 workdays before
(i) Was monitored through the use of
dosimetry badges for exposure at the plant of the external parts of the
employee’s body to radiation; or
(ii) Worked in a job that had exposures
comparable to a job that is or was monitored through the use of dosimetry
badges.
(2) The employee was so employed before
(3) The employee is a member of a group or
class of employees subsequently designated as additional members of the SEC by
HHS.
(b) For purposes of satisfying the 250
workday requirement of paragraph (a)(1) of this section, the claimant may
aggregate the days of service at more than one gaseous diffusion
plant.
(c) Proof of employment by the DOE or a DOE
contractor, or an atomic weapons employer, for the requisite time periods set
forth in paragraph (a) of this section, may be made by the submission of any
trustworthy records that, on their face or in conjunction with other such
records, establish that the employee was so employed and the time period(s) of
such employment. If the evidence
shows that exposure occurred while the employee was employed by an employer that
would have to be designated by DOE as an atomic weapons employer under section
7384l(4) of the Act to be a covered employer, and that the employer has not been
so designated, OWCP will deny the claim on the ground that the employer is not a
covered atomic weapons employer.
(d) Records from the following sources may
be considered as evidence for purposes of establishing employment or presence at
a covered facility:
(1) Records or documents created by any
federal government agency (including verified information submitted for security
clearance), any tribal government, or any state, county, city or local
government office, agency, department, board or other entity, or other public
agency or office.
(2) Records or documents created as a
byproduct of any regularly conducted business activity or by an entity that
acted as a contractor or subcontractor to the DOE.
§
30.215 How does a claimant
establish that the employee has sustained an injury, illness, impairment or
disease as a consequence of a diagnosed cancer?
An injury, illness,
impairment or disease sustained as a consequence of a diagnosed cancer covered
by the provisions of § 30.210 must be established with a fully rationalized
medical report by a physician that shows the relationship between the injury,
illness, impairment or disease and the cancer. Neither the fact that the injury,
illness, impairment or disease manifests itself after a diagnosis of a cancer,
nor the belief of the claimant that the injury, illness, impairment or disease
was caused by the cancer, is sufficient in itself to prove a causal
relationship.
Eligibility
Criteria for Claims Relating to Chronic Silicosis Under Part B of
EEOICPA
§
30.220 What are the criteria for
eligibility for benefits relating to chronic silicosis?
To establish eligibility for
benefits for chronic silicosis under Part B of EEOICPA, an employee or his or
her survivor must show that:
(a) The employee is a
civilian DOE employee, or a civilian DOE contractor employee, who was present
for a number of workdays aggregating at least 250 workdays during the mining of
tunnels at a DOE facility (as defined in § 30.5(x)) located in Nevada or Alaska
for tests or experiments related to an atomic weapon, and has been diagnosed
with chronic silicosis (as defined in § 30.5(j)); or
(b) The employee has been diagnosed with an
injury, illness, impairment or disease
that arose as a consequence of the accepted chronic
silicosis.
§
30.221 How does a claimant prove
exposure to silica in the performance of duty?
(a) Proof of the employee’s employment and
presence for the requisite days during the mining of tunnels at a DOE facility
located in Nevada or Alaska for tests or experiments related to an atomic weapon
may be made by the submission of any trustworthy records that, on their face or
in conjunction with other such records, establish that the employee was so
employed and present at these sites and the time period(s) of such employment
and presence.
(b) If the evidence shows that exposure
occurred while the employee was employed and present at a facility during a time
frame that is outside the relevant time frame indicated for that facility, OWCP
may request that DOE provide additional information on the facility. OWCP will determine whether the evidence
of record supports enlarging the relevant time frame for that
facility.
(c) Records from the following sources may
be considered as evidence for purposes of establishing proof of employment or
presence at a covered facility:
(1) Records or documents created by any
federal government agency (including verified information submitted for security
clearance), any tribal government, or any state, county, city or local
government office, agency, department, board or other entity, or other public
agency or office.
(2) Records or documents created as a
byproduct of any regularly conducted business activity or by an entity that
acted as a contractor or subcontractor to the DOE.
(d) For purposes of satisfying the 250
workday requirement of § 30.220(a), the claimant may aggregate the days of
service at more than one qualifying site.
§
30.222 How does a claimant
establish that the employee has been diagnosed with chronic silicosis or has
sustained a consequential injury, illness, impairment or
disease?
(a) A written diagnosis of the employee’s
chronic silicosis (as defined in § 30.5(j)) shall be made by a medical doctor
and accompanied by one of the following:
(1) A chest radiograph, interpreted by an
individual certified by NIOSH as a B reader, classifying the existence of
pneumoconioses of category 1/0 or higher; or
(2) Results from a computer assisted
tomograph or other imaging technique that are consistent with silicosis;
or
(3) Lung biopsy findings consistent with
silicosis.
(b) An injury, illness, impairment or
disease sustained as a consequence of accepted chronic silicosis covered by the
provisions of § 30.220(a) must be established with a fully rationalized medical
report by a physician that shows the relationship between the injury, illness,
impairment or disease and the accepted chronic silicosis. Neither the fact that the injury,
illness, impairment or disease manifests itself after a diagnosis of accepted
chronic silicosis, nor the belief of the claimant that the injury, illness,
impairment or disease was caused by the accepted chronic silicosis, is
sufficient in itself to prove a causal relationship.
Eligibility
Criteria for Certain Uranium Employees Under Part B of
EEOICPA
§
30.225 What are the criteria for
eligibility for benefits under Part B of EEOICPA for certain uranium
employees?
In order to be eligible for
benefits under this section, the claimant must establish the criteria set forth
in either paragraph (a) or paragraph (b) of this section:
(a) The Attorney General has determined that
the claimant is a covered uranium employee who is entitled to payment of
$100,000 as compensation due under section 5 of RECA for a claim made under that statute
(there is, however, no requirement that the claimant or surviving eligible
beneficiary has actually received payment pursuant to RECA). If a deceased employee’s survivor(s) has
been determined to be entitled to such an award, his or her survivor(s), if any,
will only be entitled to EEOICPA compensation in accordance with section
7384u(e) of the Act.
(b) The covered uranium employee has been
diagnosed with an injury, illness, impairment or disease that arose as a
consequence of the medical condition for which he or she was determined to be
entitled to payment of $100,000 as compensation due under section 5 of
RECA.
§
30.226 How does a claimant
establish that a covered uranium employee has sustained a consequential injury,
illness, impairment or disease?
An injury, illness,
impairment or disease sustained as a consequence of a medical condition covered
by the provisions of § 30.225(a) must be established with a fully rationalized
medical report by a physician that shows the relationship between the injury,
illness, impairment or disease and the accepted medical condition. Neither the fact that the injury,
illness, impairment or disease manifests itself after a diagnosis of a medical
condition covered by the provisions of § 30.225(a), nor the belief of the
claimant that the injury, illness, impairment or disease was caused by such a
condition, is sufficient in itself to prove a causal
relationship.
Eligibility
Criteria for Other Claims Under Part E of EEOICPA
§
30.230 What are the criteria
necessary to establish that an employee contracted a covered illness under Part
E of EEOICPA?
To establish that an
employee contracted a covered illness under Part E of the Act, the employee, or
his or her survivor, must show one of the following:
(a) That OWCP has determined under Part B of
EEOICPA that the employee is a Department of Energy contractor employee
as defined in § 30.5(w), and that he or she has been awarded compensation under
that Part of the Act for an occupational illness;
(b) That the Attorney General has determined
that the employee is entitled to payment of $100,000 as compensation due under
section 5 of RECA for a claim made under that statute (however, if a deceased
employee’s survivor has been determined to be entitled to such an award, his or
her survivor(s), if any, will only be entitled to benefits under Part E of
EEOICPA in accordance with section 7385s-3 of the Act);
(c) That the Secretary of Energy has
accepted a positive determination of a Physicians Panel that the employee
sustained an illness or died due to exposure to a toxic substance at a DOE
facility under former section 7385o of EEOICPA, or that the Secretary of Energy
has found significant evidence contrary to a negative determination of a
Physicians Panel; or
(d)(1) That the employee is a civilian
Department of Energy contractor employee as defined in § 30.5(w), or a civilian
who was employed in a uranium mine or mill located in Colorado, New Mexico,
Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or
Texas at any time during the period from January 1, 1942 through December 31,
1971, or was employed in the transport of uranium ore or vanadium-uranium ore
from such a mine or mill during that same period, and that he or
she:
(i) Has been diagnosed with an illness;
and
(ii) That it is at least as likely as not
that exposure to a toxic substance at a Department of Energy facility or at a
RECA section 5 facility, as appropriate, was a significant factor in
aggravating, contributing to, or causing the illness; and
(iii) That it is at least as likely as not
that the exposure to such toxic substance was related to employment at a
Department of Energy facility or a RECA section 5 facility, as
appropriate.
(2) In making the determination under
paragraph (d)(1)(ii) of this section, OWCP will consider:
(i) The nature, frequency and duration of
exposure of the covered employee to the substance alleged to be
toxic;
(ii) Evidence of the carcinogenic or
pathogenic properties of the alleged toxic substance to which the employee was
exposed;
(iii) An opinion of a qualified physician with
expertise in treating, diagnosing or researching the illness claimed to be
caused or aggravated by the alleged exposure; and
(iv) Any other evidence that OWCP determines
to have demonstrated relevance to the relation between a particular toxic
substance and the claimed illness.
§
30.231 How does a claimant prove
employment-related exposure to a toxic substance at a DOE facility or a RECA
section 5 facility?
To establish
employment-related exposure to a toxic substance at a Department of Energy
facility or RECA section 5 facility as required by § 30.230(d), an employee, or
his or her survivor(s), must prove that the employee was employed at such
facility and that he or she was exposed to a toxic substance in the course of
that employment.
(a) Proof of employment may be established
by any
trustworthy records that, on their face or in conjunction with other such
records, establish that the employee was so employed and the time period(s) of
such employment.
(b) Proof of exposure to a toxic substance
may be established by the submission of any appropriate document or information
that is evidence that such substance was present at the facility in which the
employee was employed and that the employee came into contact with such
substance. OWCP site exposure
matrices may be used to provide probative factual evidence that a particular
substance was present at either a DOE facility or a RECA section 5
facility.
§
30.232 How does a claimant
establish that the employee has been diagnosed with a covered illness, or
sustained an injury, illness, impairment or disease as a consequence of a
covered illness?
(a) To establish that the employee has been
diagnosed with a covered illness as required by § 30.230(d), the employee, or
his or her survivor(s), must provide the following:
(1) The name and address of any licensed
physician who is the source of a diagnosis based upon documented medical
information that the employee has or had an illness and that the illness may
have resulted from exposure to a toxic substance while
the employee was employed at a DOE facility or a RECA section 5 facility, as
appropriate, and, to the extent practicable, a copy of the diagnosis and a
summary of the information upon which the diagnosis is based;
and
(2) A signed medical release, authorizing
the release of any diagnosis, medical opinion and medical records documenting
the diagnosis or opinion that the employee has or had an illness and that the
illness may have resulted from exposure to a toxic
substance while the employee was employed at a DOE facility
or RECA section 5 facility, as appropriate; and
(3) To the extent practicable and
appropriate, an occupational history obtained by a physician, an occupational
health professional, or a DOE-sponsored Former Worker Program (if such an
occupational history is not reasonably available or is inadequate, and such
history is deemed by OWCP to be needed for the fair adjudication of the claim,
then OWCP may assist the claimant in developing this history);
and
(4) Any other information or materials
deemed by OWCP to be necessary to provide reasonable evidence that the employee
has or had an illness that may have arisen from exposure to a
toxic substance while employed at a DOE facility or RECA
section 5 facility, as appropriate.
(b) The employee, or his or her survivor(s),
may also submit to OWCP other evidence not described in paragraph (a) of this
section showing that the employee has or had an illness that resulted from an
exposure to a toxic substance
during the course of employment at either a DOE facility or a
RECA section 5 facility, as appropriate.
(c) An injury, illness, impairment or
disease sustained as a consequence of a covered illness (as defined in §
30.5(r)) must be established with a fully rationalized medical report by a
physician that shows the relationship between the injury, illness, impairment or
disease and the covered illness.
Neither the fact that the injury, illness, impairment or disease
manifests itself after a diagnosis of a covered illness, nor the belief of the
claimant that the injury, illness, impairment or disease was caused by the
covered illness, is sufficient in itself to prove a causal
relationship.
Subpart D--Adjudicatory
Process
§ 30.300 What process will OWCP use to decide
claims for entitlement and to provide for administrative review of those
decisions?
OWCP district offices will
issue recommended decisions with respect to claims for entitlement under Part B
and/or Part E of EEOICPA that are filed pursuant to the regulations set forth in
subpart B of this part. In
circumstances where a claim is made for more than one benefit available under
Part B and/or Part E of the Act, OWCP may issue a recommended decision on only
part of that particular claim in order to adjudicate that portion of the claim
as quickly as possible. Should this
occur, OWCP will issue one or more recommended decisions on the deferred
portions of the claim when the adjudication of those portions is completed. All recommended decisions granting
and/or denying benefits under Part B and/or Part E of the Act will be forwarded
to the Final Adjudication Branch (FAB).
Claimants will be given an opportunity to object to all or part of the
recommended decision before the FAB.
The FAB will consider objections filed by a claimant and conduct a
hearing, if requested to do so by the claimant, before issuing a final decision
on the claim for entitlement.
§
30.301 May subpoenas be issued for
witnesses and documents in connection with a claim under Part B of
EEOICPA?
(a) In connection with the adjudication of a
claim under Part B of EEOICPA, an OWCP district office and/or a FAB reviewer
may, at their own initiative, issue subpoenas for the attendance and testimony
of witnesses, and for the production of books, electronic records,
correspondence, papers or other relevant documents. Subpoenas will only be issued for
documents if they are relevant and cannot be obtained by other means, and for
witnesses only where oral testimony is the best way to ascertain the
facts.
(b) A claimant may also request a subpoena
in connection with his or her claim under Part B of the Act, but such request
may only be made to a FAB reviewer.
No subpoenas will be issued at the request of the claimant under any
other portion of the claims process.
The decision to grant or deny such request is within the discretion of
the FAB reviewer. To request a
subpoena under this section, the requestor must:
(1) Submit the request in writing and send it
to the FAB reviewer as early as possible, but no later than 30 days (as
evidenced by postmark, electronic marker or other objective date mark) after the
date of the original hearing request;
(2) Explain why the testimony or evidence is
directly relevant and material to the issues in the case;
and
(3) Establish that a subpoena is the best
method or opportunity to obtain such evidence because there are no other means
by which the documents or testimony could have been
obtained.
(c) No subpoena will be issued for attendance
of employees or contractors of OWCP or NIOSH acting in their official capacities
as decision-makers or policy administrators. For hearings taking the form of a review
of the written record, no subpoena for the appearance of witnesses will be
considered.
(d) The FAB reviewer will issue the subpoena
under his or her own name. It may
be served in person or by certified mail, return receipt requested, addressed to
the person to be served at his or her last known principal place of business or
residence. A decision to deny a
subpoena requested by a claimant can only be challenged as part of a request for
reconsideration of any adverse decision of the FAB which results from the
hearing.
§
30.302 Who pays the costs
associated with subpoenas?
(a) Witnesses who are not employees or former
employees of the federal government shall be paid the same fees and mileage as
paid for like services in the District Court of the
(b) Where OWCP asked that the witness submit
evidence into the case record or asked that the witness attend, OWCP shall pay
the fees and mileage. Where the
claimant asked for the subpoena, and where the witness submitted evidence into
the record at the request of the claimant, the claimant shall pay the fees and
mileage.
§
30.303 What information may OWCP
request in connection with a claim under Part E of
EEOICPA?
At any time during the
course of development of a claim for benefits under Part E, OWCP may determine
that it needs relevant information to adjudicate the claim. When this occurs, and at the request of OWCP, DOE and/or any contractor
who employed a Department of Energy contractor employee must provide to OWCP
information or documents in response to the request in connection with a claim
under Part E of EEOICPA.
(a) The party to whom the request is made
must respond to OWCP within 90 days of the request with
either:
(1) The requested information or documents;
or
(2) A sworn statement that a good faith
search for the requested information or documents was conducted, and that the
information or documents could not be located.
(b) DOE and/or the DOE contractor who
employed a Department of Energy contractor employee must query third parties
under its control to acquire the requested information or
documents.
(c) In providing the requested information
or documents, DOE and/or the DOE contractor who employed a DOE contractor
employee must preserve the current organization of the requested information or
documents, and must provide such description and indexing of the requested
information or documents as OWCP considers appropriate to facilitate their use
by OWCP.
(d) Information or document requests may
include, but are not limited to, requests for records, files and other data,
whether paper, electronic, imaged or otherwise, developed, acquired or
maintained by DOE or the DOE contractor who employed a DOE contractor
employee. Such information or
documents may include records, files and data on facility industrial hygiene,
employment of individuals or groups, exposure and medical records, and claims
applications.
Recommended
Decisions on Claims
§
30.305 How does OWCP determine
entitlement to EEOICPA compensation?
(a) In reaching a recommended decision with
respect to EEOICPA compensation, OWCP considers the claim presented by the
claimant, the factual and medical evidence of record, the dose reconstruction
report calculated by HHS (if any), any report submitted by DOE and the results
of such investigation as OWCP may deem necessary.
(b) The OWCP claims staff applies the law,
the regulations and its procedures when it evaluates the medical evidence and
the facts as reported or obtained upon investigation.
§
30.306 What does the recommended
decision contain?
The recommended decision
shall contain findings of fact and conclusions of law. The recommended decision may accept or
reject the claim in its entirety, or it may accept or reject a portion of the
claim presented. It is accompanied
by a notice of the claimant’s right to file objections with, and request a
hearing before, the FAB.
§
30.307 To whom is the recommended
decision sent?
(a) A copy of the recommended decision will
be mailed to the claimant’s last known address and to the claimant’s designated
representative before OWCP, if any.
Notification to either the claimant or the representative will be
considered notification to both parties.
(b) At the same time it issues a recommended
decision on a claim, the OWCP district office will forward the record of such
claim to the FAB. Any new evidence
submitted to the district office following the issuance of the recommended
decision will also be forwarded to the FAB for
consideration.
Hearings
and Final Decisions on Claims
§
30.310 What must the claimant do if
he or she objects to the recommended decision or wants to request a
hearing?
(a) Within 60 days from the date the
recommended decision is issued, the claimant must state, in writing, whether he
or she objects to any of the findings of fact and/or conclusions of law
contained in such decision, including HHS’s reconstruction of the radiation dose
to which the employee was exposed (if any), and whether a hearing is
desired. This written statement
should be filed with the FAB at the address indicated in the notice accompanying
the recommended decision.
(b) For purposes of determining whether the
written statement referred to in paragraph (a) of this section has been timely
filed with the FAB, the statement will be considered to be “filed” on the date
that the claimant mails it to the FAB, as determined by postmark, or on the date
that such written statement is actually received by the FAB, whichever is the
earliest determinable date.
§
30.311 What happens if the claimant
does not object to the recommended decision or request a hearing within 60
days?
(a) If the claimant does not file a written
statement that objects to the recommended decision and/or requests a hearing
within the period of time allotted in § 30.310, the FAB may issue a final
decision accepting the recommendation of the district office as provided in §
30.316.
(b) If the recommended decision accepts all
or part of a claim for compensation, the FAB may issue a final decision at any
time after receiving written notice from the claimant that he or she waives any
objection to all or part of the recommended decision.
§
30.312 What will the FAB do if the
claimant objects to the recommended decision but does not request a
hearing?
If the claimant files a
written statement that objects to the recommended decision within the period of
time allotted in § 30.310 but does not request a hearing, the FAB will consider
any objections by means of a review of the written record. If the claimant only objects to part of
the recommended decision, the FAB may issue a final decision accepting the
remaining part of the recommendation of the district office without first
reviewing the written record (see § 30.316).
§
30.313 How is a review of the
written record conducted?
(a) The FAB reviewer will consider the
written record forwarded by the district office and any additional evidence
and/or argument submitted by the claimant.
The reviewer may also conduct whatever investigation is deemed
necessary.
(b) The claimant should submit, with his or
her written statement that objects to the recommended decision, all evidence or
argument that he or she wants to present to the reviewer. However, evidence or argument may be
submitted at any time up to the date specified by the reviewer for the
submission of such evidence or argument.
(c) Any objection that is not presented to
the FAB reviewer, including any objection to HHS’s reconstruction of the
radiation dose to which the employee was exposed (if any), whether or not the
pertinent issue was previously presented to the district office, is deemed
waived for all purposes.
§
30.314 How is a hearing
conducted?
(a) The FAB reviewer retains complete
discretion to set the time and place of the hearing, including the amount of
time allotted for the hearing, considering the issues to be resolved. At the discretion of the reviewer, the
hearing may be conducted by telephone or teleconference. As part of the hearing process, the FAB
reviewer will consider the written record forwarded by the district office and
any additional evidence and/or argument submitted by the claimant. The reviewer may also conduct whatever
investigation is deemed necessary.
(1) The FAB reviewer will try to set the
hearing at a place that is within commuting distance of the claimant’s
residence, but will not be able to do so in all cases. Therefore, for reasons of economy, the
claimant may be required to travel a roundtrip distance of up to 200 miles to
attend the hearing.
(2) In unusual circumstances, the FAB
reviewer may set a place for the hearing that is more than 200 miles roundtrip
from the claimant’s residence.
However, in that situation, OWCP will reimburse the claimant for
reasonable and necessary travel expenses incurred to attend the hearing if he or
she submits a written reimbursement request that documents such
expenses.
(b) Unless otherwise directed in writing by
the claimant, the FAB reviewer will mail a notice of the time and place of the
hearing to the claimant and any representative at least 30 days before the
scheduled hearing date. If the
claimant only objects to part of the recommended decision, the FAB reviewer may
issue a final decision accepting the remaining part of the recommendation of the
district office without first holding a hearing (see § 30.316). Any objection that is not presented to
the FAB reviewer, including any objection to HHS’s reconstruction of the
radiation dose to which the employee was exposed (if any), whether or not the
pertinent issue was previously presented to the district office, is deemed
waived for all purposes.
(c) The hearing is an informal process, and
the reviewer is not bound by common law or statutory rules of evidence, or by
technical or formal rules of procedure.
The reviewer may conduct the hearing in such manner as to best ascertain
the rights of the claimant. During
the hearing process, the claimant may state his or her arguments and present new
written evidence and/or testimony in support of the claim.
(d) Testimony at hearings is recorded, then
transcribed and placed in the record.
Oral testimony shall be made under oath.
(e) The FAB reviewer will furnish a
transcript of the hearing to the claimant, who has 20 days from the date it is
sent to submit any comments to the reviewer.
(f) The claimant will have 30 days after the
hearing is held to submit additional evidence or argument, unless the reviewer,
in his or her sole discretion, grants an extension. Only one such extension may be
granted.
(g) The reviewer determines the conduct of
the hearing and may terminate the hearing at any time he or she determines that
all relevant evidence has been obtained, or because of misbehavior on the part
of the claimant and/or representative at or near the place of the oral
presentation.
§
30.315 May a claimant postpone a
hearing?
(a) The FAB will entertain any reasonable
request for scheduling the time and place of the hearing, but such requests
should be made at the time that the hearing is requested. Scheduling is at the discretion of the
FAB, and is not reviewable. In most
instances, once the hearing has been scheduled and appropriate written notice
has been mailed, it cannot be postponed at the claimant’s request for any reason
except those stated in paragraph (b) of this section, unless the FAB reviewer
can reschedule the hearing on the same docket (that is, during the same hearing
trip). If a request to postpone a
scheduled hearing does not meet one of the tests of paragraph (b) of this
section and cannot be accommodated on the same docket, no further opportunity
for a hearing will be provided.
Instead, the FAB will consider the claimant’s objections by means of a
review of the written record. In
the alternative, a teleconference may be substituted for the hearing at the
discretion of the reviewer.
(b) Where the claimant
or the representative appointed by the claimant in accordance with § 30.600 of
this part has a medical reason that prevents attendance at the hearing, or where
the death or illness of the
claimant’s parent , spouse, or child prevents the claimant from attending the
hearing as scheduled, a postponement may be granted in the discretion of the FAB
if the claimant or the representative provides at least 24 hours notice and a
reasonable explanation supporting his or her inability to attend the scheduled
hearing.
(c) At any time after requesting a hearing,
the claimant can request a change to a review of the written record by making a
written request to the FAB. Once
such a change is made, no further opportunity for a hearing will be
provided.
§
30.316 How does the FAB issue a
final decision on a claim?
(a) If the claimant does not file a written
statement that objects to the recommended decision and/or requests a hearing
within the period of time allotted in § 30.310, or if the claimant waives any
objections to all or part of the recommended decision, the FAB may issue a final
decision accepting the recommendation of the district office, either in whole or
in part (see §§ 30.311, 30.312 and 30.314(b)).
(b) If the claimant objects to all or part
of the recommended decision, the FAB reviewer will issue a final decision on the
claim after either the hearing or the review of the written record, and after
completing such further development of the case as he or she may deem
necessary.
(c) Any recommended decision (or part
thereof) that is pending either a hearing or a review of the written record for
more than one year from the date the FAB received the written statement
described in § 30.310(a), or the date the Director reopened the claim for
issuance of a new final decision pursuant to § 30.320(a), shall be considered a
final decision of the FAB on the one-year anniversary of such date. Any recommended decision described in §
30.311 that is pending at the FAB for more than one year from the date that the
period of time described in § 30.310 expired shall be considered a final
decision of the FAB on the one-year anniversary of such
date.
(d) The decision of the FAB, whether issued
pursuant to paragraph (a), (b) or (c) of this section, shall be final upon the
date of issuance of such decision, unless a timely request for reconsideration
under § 30.319 has been filed.
(e) A copy of the final decision of the FAB
will be mailed to the claimant’s last known address and to the claimant’s
designated representative before OWCP, if any. Notification to either the claimant or
the representative will be considered notification to both
parties.
§
30.317 Can the FAB request a
further response from the claimant or return a claim to the district
office?
At any time before the
issuance of its final decision, the FAB may request that the claimant submit
additional evidence or argument, or return the claim to the district office for
further development and/or issuance of a new recommended decision without
issuing a final decision, whether or not requested to do so by the
claimant.
§
30.318 Can the FAB consider
objections to HHS’s reconstruction of a radiation dose or to the guidelines OWCP
uses to determine if a claimed cancer was at least as likely as not related to
employment?
(a) If the claimant objects to HHS’s
reconstruction of the radiation dose to which the employee was exposed, the FAB
will evaluate the factual findings upon which HHS based its dose
reconstruction. If these factual
findings do not appear to be supported by substantial evidence, the claim will
be returned to the district office for referral to HHS for further
consideration.
(b) The methodology used by HHS in arriving
at reasonable estimates of the radiation doses received by an employee,
established by regulations issued by HHS at 42 CFR part 82, is binding on the
FAB. The FAB reviewer may
determine, however, that objections concerning the application of that
methodology should be considered by HHS and may return the case to the district
office for referral to HHS for such consideration.
(c) The methodology that OWCP uses to
determine if a claimed cancer was at least as likely as not related to
employment at a DOE facility, an atomic weapons employer facility, or a RECA
section 5 facility, established by regulations issued by HHS at 42 CFR part 81,
is also binding on the FAB (see § 30.213).
However, since OWCP applies this methodology when it makes these
determinations, the FAB reviewer may consider objections to the manner in which
OWCP applied HHS’s regulatory guidelines.
§
30.319 May a claimant request
reconsideration of a final decision of the FAB?
(a) A claimant may request reconsideration
of a final decision of the FAB by filing a written request with the FAB within
30 days from the date of issuance of such decision. If a timely request for reconsideration
is made, the decision in question will no longer be considered “final” under §
30.316(d).
(b) For purposes of determining whether the
written request referred to in paragraph (a) of this section has been timely
filed with the FAB, the request will be considered to be “filed” on the date
that the claimant mails it to the FAB, as determined by postmark, or on the date
that such written request is actually received by the FAB, whichever is the
earliest determinable date.
(c) A hearing is not available as part of
the reconsideration process. If the
FAB grants the request for reconsideration, it will consider the written record
of the claim again and issue a new final decision on the claim.
A new final decision that is issued
after the FAB grants a request for reconsideration will be “final” upon the date
of issuance of such new decision.
(1) Instead of issuing a new final decision
after granting a request for reconsideration, the FAB may return the claim to
the district office for further development as provided in §
30.317.
(2) If the FAB denies the request for
reconsideration, the FAB decision that formed the basis for the request will be
considered “final” upon the date the request is denied, and no further requests
for reconsideration of that particular final decision of the FAB will be
entertained.
(d) A claimant may not seek judicial review
of a decision on his or her claim under
EEOICPA until OWCP’s decision on the claim is final pursuant to either §
30.316(d) (for claims in which no request for reconsideration was filed with the
FAB) or paragraph (c) of this section (for claims in which a request for
reconsideration was filed with the FAB).
Reopening
Claims
§
30.320 Can a claim be reopened
after the FAB has issued a final decision?
(a) At any time after the FAB has issued a
final decision pursuant to § 30.316, and without regard to whether new evidence
or information is presented or obtained, the Director for Energy Employees
Occupational Illness Compensation may reopen a claim and return it to the FAB
for issuance of a new final decision, or to the district office for such further
development as may be necessary, to be followed by a new recommended
decision. The Director may also
vacate any other type of decision issued by the FAB.
(b) At any time after the FAB has issued a
final decision pursuant to § 30.316, a claimant may file a written request that
the Director for Energy Employees Occupational Illness Compensation reopen his
or her claim, provided that the claimant also submits new evidence of either
covered employment or exposure to a toxic substance, or identifies either a
change in the PoC guidelines, a change in the dose reconstruction methods or an
addition of a class of employees to the Special Exposure
Cohort.
(1) If the Director concludes that the
evidence submitted or matter identified in support of the claimant’s request is
material to the claim, the Director will reopen the claim and return it to the
district office for such further development as may be necessary, to be followed
by a new recommended decision.
(2) New evidence of a medical condition
described in subpart C of these regulations is not sufficient to support a
written request to reopen a claim for such a condition under paragraph (b) of
this section.
(c) The decision whether or not to reopen a
claim under this section is solely within the discretion of the Director for
Energy Employees Occupational Illness Compensation and is not reviewable. If the Director reopens a claim pursuant
to paragraphs (a) or (b) of this section and returns it to the district office,
the resulting new recommended decision will be subject to the adjudicatory
process described in this subpart.
However, neither the district office nor the FAB can consider any
objection concerning the Director’s decision to reopen a claim under this
section.
Subpart
E--Medical and Related Benefits
Medical
Treatment and Related Issues
§ 30.400 What are the basic rules for obtaining
medical treatment?
(b) If a claimant disagrees with the
decision of OWCP that medical benefits provided under paragraph (a) of this
section are not necessary to treat an occupational illness or covered illness,
he or she may choose to utilize the adjudicatory process described in subpart D
of this part.
(c) Any qualified physician or qualified
hospital may provide medical services, appliances and supplies to the covered
Part B employee or the covered Part E employee. A qualified provider of medical support
services may also furnish appropriate services, appliances, and supplies. OWCP may apply a test of
cost-effectiveness when it decides if appliances and supplies are necessary to
treat an occupational illness or covered illness. With respect to prescribed medications,
OWCP may require the use of generic equivalents where they are
available.
§
30.401 What are the special rules
for the services of chiropractors?
(a) The services of chiropractors that may
be reimbursed by OWCP are limited to treatment to correct a spinal
subluxation. The costs of physical
and related laboratory tests performed by or required by a chiropractor to
diagnose such a subluxation are also payable.
(b) A diagnosis of spinal subluxation as
demonstrated by x-ray to exist must appear in the chiropractor’s report before
OWCP can consider payment of a chiropractor’s bill.
(c) A chiropractor may interpret his or her
x-rays to the same extent as any other physician. To be given any weight, the medical
report must state that x-rays support the finding of spinal subluxation. OWCP will not necessarily require
submission of the x-ray, or a report of the x-ray, but the report must be
available for submission on request.
(d) A chiropractor may also provide services
in the nature of physical therapy under the direction of a qualified
physician.
§
30.402 What are the special rules
for the services of clinical psychologists?
A clinical psychologist may
serve as a physician within the scope of his or her practice as defined by state
law. Therefore, a clinical
psychologist may not serve as a physician for conditions that include a physical
component unless the applicable state law allows clinical psychologists to treat
physical conditions. A clinical
psychologist may also perform testing, evaluation, and other services under the
direction of a qualified physician.
§
30.403 Will OWCP pay for the
services of an attendant?
OWCP will authorize payment
for personal care services under section 7384t of the Act, whether or not such
care includes medical services, so long as the personal care services have been
determined to be medically necessary and are provided by a home health aide,
licensed practical nurse, or similarly trained individual. If a claimant disagrees with the
decision of OWCP that personal care services are not medically necessary, he or
she may utilize the adjudicatory process described in subpart D of this
part.
§
30.404 Will OWCP pay for
transportation to obtain medical treatment?
(a) The employee is entitled to
reimbursement for reasonable and necessary expenses, including transportation,
incident to obtaining authorized medical services, appliances or supplies. To determine what is a reasonable
distance to travel, OWCP will consider the availability of services, the
employee’s condition, and the means of transportation. Generally, a roundtrip distance of up to
200 miles is considered a reasonable distance to travel.
(b) If travel of more than 200 miles is
contemplated, or air transportation or overnight accommodations will be needed,
the employee must submit a written request to OWCP for prior authorization with
information describing the circumstances and necessity for such travel
expenses. OWCP will approve the
request if it determines that the travel expenses are reasonable and necessary,
and are incident to obtaining authorized medical services, appliances or
supplies. Requests for travel
expenses that are often approved include those resulting from referrals to a
specialist for further medical treatment, and those involving air transportation
of an employee who lives in a remote geographical area with limited local
medical services.
(c) If a claimant disagrees with the
decision of OWCP that requested travel expenses are either not reasonable or
necessary, or are not incident to obtaining authorized medical services,
appliances or supplies, he or she may utilize the adjudicatory process described
in subpart D of this part.
(d) The standard form designated for medical
travel refund requests is Form OWCP-957 and must be used to seek reimbursement
under this section. This form can
be obtained from OWCP.
§
30.405 After selecting a treating
physician, may an employee choose to be treated by another physician
instead?
(a) OWCP will provide the employee with an
opportunity to designate a treating physician when it accepts the claim. When the physician originally selected
to provide treatment for an occupational illness or a covered illness refers the
employee to a specialist for further medical care, the employee need not consult
OWCP for approval. In all other
instances, however, the employee must submit a written request to OWCP with his
or her reasons for desiring a change of physician.
(b) OWCP will approve the request if it
determines that the reasons submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician who
specializes in treating the occupational illnesses or covered illnesses covered
by EEOICPA, or the need for a new physician when an employee has
moved.
(c) If a claimant disagrees with the decision
of OWCP that insufficient reasons for a change of physician have been submitted,
he or she may utilize the adjudicatory process described in subpart D of this
part.
§
30.406 Are there any exceptions to
these procedures for obtaining medical care?
In cases involving
emergencies or unusual circumstances, OWCP may authorize treatment in a manner
other than as stated in this subpart.
Directed
Medical Examinations
§
30.410 Can OWCP require an employee
to be examined by another physician?
(a) OWCP sometimes needs a second opinion
from a medical specialist. The
employee must submit to examination by a qualified physician who conforms to the
standards regarding conflicts of interest adopted by OWCP as often and at such
times and places as OWCP considers reasonably necessary. Also, OWCP may send a case file for
second opinion review to a qualified physician who conforms to the standards
regarding conflicts of interest adopted by OWCP where an actual examination is
not needed, or where the employee is deceased.
(b) If the initial examination is disrupted
by someone accompanying the employee, OWCP will schedule another examination
with a different qualified physician who conforms to the standards regarding
conflicts of interest adopted by OWCP.
The employee will not be entitled to have anyone else present at the
subsequent examination unless OWCP decides that exceptional circumstances
exist. For example, where a
hearing-impaired employee needs an interpreter, the presence of an interpreter
would be allowed.
§
30.411 What happens if the opinion
of the physician selected by OWCP differs from the opinion of the physician
selected by the employee?
(a) If one medical opinion holds more
probative value than the other, OWCP will base its determination of coverage on
the medical opinion with the greatest probative value. A difference in medical opinion
sufficient to be considered a conflict only occurs when two reports of virtually
equal weight and rationale reach opposing conclusions.
(b) If a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of a second opinion
physician, an OWCP medical adviser or consultant, or a physician submitting an
impairment evaluation that meets the criteria set out in § 30.905 of this part,
OWCP shall appoint a third physician who conforms to the standards regarding
conflicts of interest adopted by OWCP to make an examination or an impairment
evaluation. This is called a
referee examination or a referee impairment evaluation. OWCP will select a physician who is
qualified in the appropriate specialty and who has had no prior connection with
the case. Also, a case file may be
sent to a physician who conforms to the standards regarding conflicts of
interest adopted by OWCP for a referee medical review where there is no need for
an actual examination, or where the employee is deceased.
(c) If the initial referee examination or
referee impairment evaluation is disrupted by someone accompanying the employee,
OWCP will schedule another examination or impairment evaluation with a different
qualified physician who conforms to the standards regarding conflicts of
interest adopted by OWCP. The
employee will not be entitled to have anyone else present at the subsequent
referee examination or referee impairment evaluation unless OWCP decides that
exceptional circumstances exist.
For example, where a hearing-impaired employee needs an interpreter, the
presence of an interpreter would be allowed.
§
30.412 Who pays for second opinion
and referee examinations?
OWCP will pay second opinion
and referee medical specialists directly.
OWCP will also reimburse the employee for all necessary and reasonable
expenses incident to such an examination, including transportation costs and
actual wages the employee lost for the time needed to submit to an examination
required by OWCP.
Medical
Reports
§
30.415 What are the requirements
for medical reports?
In general, medical reports
from the employee’s attending physician should include the
following:
(a) Dates of examination and
treatment;
(b) History given by the
employee;
(c) Physical findings;
(d) Results of diagnostic
tests;
(e) Diagnosis;
(f) Course of
treatment;
(g) A description of any other conditions
found due to the claimed occupational illness or covered
illness;
(h) The treatment given or recommended for
the claimed occupational illness or covered illness; and
(i) All other material
findings.
§
30.416 How and when should medical
reports be submitted?
(a) The initial medical report (and any
subsequent reports) should be made in narrative form on the physician’s
letterhead stationery. The
physician should use the Form EE-7 as a guide for the preparation of his or her
initial medical report in support of a claim under Part B and/or Part E of
EEOICPA. The report should bear the
physician’s signature or signature stamp.
OWCP may require an original signature on the
report.
(b) The report shall be submitted directly
to OWCP as soon as possible after medical examination or treatment is received,
either by the employee or the physician.
§
30.417 What additional medical
information may OWCP require to support continuing payment of
benefits?
In all cases requiring
hospital treatment or prolonged care, OWCP will request detailed narrative
reports from the attending physician at periodic intervals. The physician will be asked to describe
continuing medical treatment for the occupational illness or covered illness
accepted by OWCP, a prognosis, and the physician’s opinion as to the continuing
causal relationship between the need for additional treatment and the
occupational illness or covered illness.
Medical
Bills
§ 30.420 How should medical bills and
reimbursement requests be submitted?
Usually, medical providers
submit their bills directly for processing. The rules for submitting and processing
provider bills and reimbursement requests are stated in subpart H of this
part. An employee requesting
reimbursement for out-of-pocket medical expenses must submit a Form OWCP-915 and
meet the requirements described in § 30.702.
§ 30.421 What are the time frames for submitting
bills and reimbursement requests?
To be considered for payment,
bills and reimbursement requests must be submitted by the end of the calendar
year after the year when the expense was incurred, or by the end of the calendar
year after the year when OWCP first accepted the claim as compensable under
subpart D of this part, whichever is later.
§ 30.422 If an employee is only partially
reimbursed for a medical expense, must the provider refund the balance of the
amount paid to the employee?
(a) The OWCP fee schedule sets maximum
limits on the amounts payable for many services. The employee may be only partially
reimbursed for out-of-pocket medical expenses because the amount he or she paid
to the medical provider for a service exceeds the maximum allowable charge set
by the OWCP fee schedule.
(b) If this happens, the employee will be
advised of the maximum allowable charge for the service in question and of his
or her responsibility to ask the provider to refund to the employee, or credit
to the employee’s account, the amount he or she paid that exceeds the maximum
allowable charge. The provider that
the employee paid, but not the employee, may request reconsideration of the fee
determination as set forth in § 30.712.
(c) If the provider does not refund to the
employee or credit to his or her account the amount of money paid in excess of
the charge that OWCP allows, the employee should submit documentation of the
attempt to obtain such refund or credit to OWCP. OWCP may authorize reasonable
reimbursement to the employee after reviewing the facts and circumstances of the
case.
Subpart
F--Survivors; Payments and Offsets; Overpayments
Survivors
§
30.500 What special statutory
definitions apply to survivors under EEOICPA?
(a) For the purposes of paying compensation
to survivors under both Parts B and E of
EEOICPA, OWCP will use the following definitions:
(1) Surviving spouse means the wife or
husband of a deceased covered Part B employee or deceased covered Part E
employee who was married to that individual for the 365 consecutive days
immediately prior to the death of that individual.
(2) Child or children includes a recognized natural
child of a deceased covered Part B employee or deceased covered Part E employee,
a stepchild who lived with that individual in a regular parent-child
relationship, and an adopted child of that individual. However, to be a “covered” child under
Part E only, such child must have been, as of the date of the deceased covered
Part E employee’s death, either under the age of 18 years, or under the age of
23 years and a full-time student who was continuously enrolled in one or more
educational institutions since attaining the age of 18 years, or any age and
incapable of self-support.
(b) For the purposes of paying compensation
to survivors only under Part B of
EEOICPA, OWCP will use the following additional
definitions:
(1) Parent includes fathers and mothers of a
deceased covered Part B employee through adoption.
(2) Grandchild means a child of a child of a
deceased covered Part B employee.
(3) Grandparent means a parent of a parent
of a deceased covered Part B employee.
§
30.501 What order of precedence
will OWCP use to determine which survivors are entitled to receive compensation
under EEOICPA?
(a) Under Part B of the Act, if OWCP
determines that a survivor or survivors are entitled to receive compensation
under EEOICPA because a covered Part B employee who would otherwise have been
entitled to benefits is deceased, that compensation will be disbursed as
follows, subject to the qualifications set forth in § 30.5(gg)(3) of these
regulations:
(1) If there is a surviving spouse, the
compensation shall be paid to that individual.
(2) If there is no surviving spouse, the
compensation shall be paid in equal shares to all children of the deceased
covered Part B employee.
(3) If there is no surviving spouse and no
children, the compensation shall be paid in equal shares to the parents of the
deceased covered Part B employee.
(4) If there is no surviving spouse, no
children and no parents, the compensation shall be paid in equal shares to all
grandchildren of the deceased covered Part B employee.
(5) If there is no surviving spouse, no
children, no parents and no grandchildren, the compensation shall be paid in
equal shares to the grandparents of the deceased covered Part B
employee.
(6) Notwithstanding paragraphs (a)(1)
through (a)(5) of this section, if there is a surviving spouse and at least one
child of the deceased covered Part B employee who is a minor at the time of
payment and who is not a recognized natural child or adopted child of such
surviving spouse, half of the compensation shall be paid to the surviving
spouse, and the other half of the compensation shall be paid in equal shares to
each child of the deceased covered Part B employee who is a minor at the time of
payment.
(b) Under Part E of the Act, if OWCP
determines that a survivor or survivors are entitled to receive compensation
under EEOICPA because a covered Part E employee who would otherwise have been
entitled to benefits is deceased, that compensation will be disbursed as
follows, subject to the qualifications set forth in § 30.5(gg)(3) of these
regulations:
(1) If there is a surviving spouse, the
compensation shall be paid to that individual.
(2) If there is no surviving spouse, the
compensation shall be paid in equal shares to all “covered” children of the
deceased covered Part E employee.
(3) Notwithstanding paragraphs (b)(1) and
(b)(2) of this section,
if there is
a surviving spouse and at least one “covered” child of the deceased covered Part
E employee who is living at the time of payment and who is not a recognized
natural child or adopted child of such surviving spouse, then half
of such payment shall be made to such surviving spouse, and the other half of
such payment shall be made in equal shares to each “covered” child of the
employee who is living at the time of payment.
§
30.502 When is entitlement for
survivors determined for purposes of EEOICPA?
Entitlement to any lump-sum
payment for survivors under EEOICPA, other than for “covered” children under
Part E, will be determined as of the time OWCP makes such a payment. As noted in § 30.500(a)(2) of these
regulations, a child of a deceased Part E employee will only qualify as a
“covered” child of that individual if he or she satisfied one of the additional
statutory criteria for a “covered” child as of the date of the deceased Part E
employee’s death.
Payment
of Claims and Offset for Certain Payments
§
30.505 What procedures will OWCP
follow before it pays any compensation?
(a) In cases involving the approval of a
claim, whether in whole or in part, OWCP shall take all necessary steps to
determine the amount of any offset or coordination of EEOICPA benefits before
paying any benefits, and to verify the identity of the covered Part B employee,
the covered Part E employee, or the eligible surviving beneficiary or
beneficiaries. To perform these
tasks, OWCP may conduct any investigation, require any claimant to provide or
execute any affidavit, record or document, or authorize the release of any
information as OWCP deems necessary to ensure that the compensation payment is
made in the correct amount and to the correct person or persons. OWCP shall also require every claimant
under Part B of the Act to execute and provide any necessary affidavit described
in § 30.620 of these regulations.
Should a claimant fail or refuse to execute an affidavit or release of
information, or fail or refuse to provide a requested document or record or to
provide access to information, such failure or refusal may be deemed to be a
rejection of the payment, unless the claimant does not have and cannot obtain
the legal authority to provide, release, or authorize access to the required
information, records, or documents.
(b) To determine the amount of any offset,
OWCP shall require the covered Part B employee, covered Part E employee or each
eligible surviving beneficiary filing a claim under this part to execute and
provide an affidavit (or declaration made under oath on Form EE-1 or EE-2)
reporting the amount of any payment made pursuant to a final judgment or
settlement in litigation seeking damages.
Even if someone other than the covered Part B employee or the covered
Part E employee receives a payment pursuant to a final judgment or settlement in
litigation seeking damages (e.g., the surviving spouse of a deceased
covered Part B employee or a deceased covered Part E employee), the receipt of
any such payment must be reported.
(1) For the purposes of this paragraph (b)
only, “litigation seeking damages” refers to any request or demand for money
(other than for workers’ compensation) by the covered Part B employee or the
covered Part E employee, or by another individual if the covered Part B employee
or the covered Part E employee is deceased, made or sought in a civil action or
in anticipation of the filing of a civil action, for injuries incurred on
account of an exposure for which compensation is payable under EEOICPA. This term does not also include any
request or demand for money made or sought pursuant to a life insurance or
health insurance contract, or any request or demand for money made or sought by
an individual other than the covered Part B employee or the covered Part E
employee in that individual’s own right (e.g., a spouse’s claim for loss
of consortium), or any request or demand for money made or sought by the covered
Part B employee or the covered Part E employee (or the estate of a deceased
covered Part B employee or deceased covered Part E employee) not for injuries
incurred on account of an exposure for which compensation is payable under the
EEOICPA (e.g., a covered Part B employee’s or a covered Part E employee’s
claim for damage to real or personal property).
(2) If a payment has been made pursuant to a
final judgment or settlement in litigation seeking damages, OWCP shall subtract
a portion of the dollar amount of such payment from the benefit payments to be
made under EEOICPA. OWCP will
calculate the amount to be subtracted from the benefit payments in the following
manner:
(i) OWCP will first determine the value of
the payment made pursuant to either a final judgment or settlement in litigation
seeking damages by adding the dollar amount of any monetary damages (excluding
contingent awards) and any medical expenses for treatment provided on or after
the date the covered Part B employee or the covered Part E employee filed a
claim for EEOICPA benefits that were paid for under the final judgment or
settlement. In the event that these
payments include a “structured” settlement (where a party makes an initial cash payment and
also arranges, usually through the purchase of an annuity, for payments in the
future), OWCP will usually accept the cost of the annuity to the purchaser as
the dollar amount of the right to receive the future
payments.
(ii) OWCP will then make certain deductions
from the above dollar amount to arrive at the dollar amount to be subtracted
from any unpaid EEOICPA benefits.
Allowable deductions consist of attorney’s fees OWCP deems reasonable,
and itemized costs of suit (out-of-pocket expenditures not part of the normal
overhead of a law firm’s operation like filing fees, travel expenses, witness
fees, and court reporter costs for transcripts) provided that adequate
supporting documentation is submitted to OWCP.
(iii) The EEOICPA benefits that will be
reduced will consist of any unpaid lump-sum payments payable in the future and
medical benefits payable in the future.
In those cases where it has not yet paid EEOICPA benefits, OWCP will
reduce such benefits on a dollar-for-dollar basis, beginning with the lump-sum
payments first. If the amount to be
subtracted exceeds the lump-sum payments, OWCP will reduce ongoing EEOICPA
medical benefits payable in the future by the amount of any remaining
surplus. This means that OWCP will
apply the amount it would otherwise pay to reimburse the covered Part B employee
or the covered Part E employee for any ongoing EEOICPA medical treatment to the
remaining surplus until it is absorbed.
In addition to this reduction of ongoing EEOICPA medical benefits, OWCP
will not be the first payer for any medical expenses that are the responsibility
of another party (who will instead be the first payer) as part of a final
judgment or settlement in litigation seeking damages.
(3) The above reduction of EEOICPA benefits
will not occur if an EEOICPA claimant had his or her award under section 5 of
RECA reduced by the full amount of the payment made pursuant to a final judgment
or settlement in litigation seeking damages. It will also not occur if an EEOICPA
claimant’s prior payment of EEOICPA benefits, or his or her workers’
compensation benefits, were offset to reflect the full amount of the payment
made pursuant to a final judgment or settlement in litigation seeking
damages. However, if the prior
reduction or offset of the above benefits did not reflect the full amount of the
payment made pursuant to a final judgment or settlement in litigation seeking
damages, OWCP will reduce currently payable EEOICPA benefits by the amount of
any surplus final judgment or settlement payment that
remains.
(c) Except as provided in § 30.506(b) of
these regulations, when OWCP has verified the identity of every claimant who is
entitled to the compensation payment, or to a share of the compensation payment,
and has determined the correct amount of the payment or the share of the
payment, OWCP shall notify every claimant, every duly appointed guardian
or conservator of a claimant, or
every person with power of attorney for a claimant, and require such person or
persons to complete a Form EN-20 providing
payment information. Such
form shall be signed and returned to OWCP within sixty days of the date of the
form or within such greater period as may be allowed by OWCP. Failure to sign and return the form
within the required time may be deemed to be a rejection of the payment. If the claimant dies before the payment
is received, the person who receives the payment shall return it to OWCP for
redetermination of the correct disbursement of the payment. No payment shall be made until OWCP has
made a determination concerning the survivors related to a respective claim for
benefits.
(d) The total amount of compensation (other
than medical benefits) under Part E that can be paid to all claimants as a
result of the exposure of a covered Part E employee shall not be more than
$250,000 in any circumstances.
§
30.506 To whom and in what manner
will OWCP pay compensation?
(a) Except with respect to claims under Part
B of the Act for beryllium sensitivity, payment shall be made to the covered
Part B employee or the covered Part E employee, to the duly appointed guardian
or conservator of that individual, or to the person with power of attorney for
that individual, unless the covered Part B employee or covered Part E employee
is deceased at the time of the payment.
In all cases involving a deceased covered Part B employee or deceased
covered Part E employee, payment shall be made to the eligible surviving
beneficiary or beneficiaries, to the duly appointed guardian or conservator of
the eligible surviving beneficiary or beneficiaries, or to every person with
power of attorney for an eligible surviving beneficiary, in accordance with the
terms and conditions specified in sections 7384s(e), 7384u(e), and 7385s-3(c)
and (d) of EEOICPA.
(b) Under Part B of the Act, compensation
for any consequential injury, illness, impairment or disease is limited to
payment of medical benefits for that injury, illness, impairment or
disease. Under Part E of the Act,
compensation for any consequential injury, illness, impairment or disease
consists of medical benefits for that injury, illness, impairment or disease, as
well as any additional monetary benefits that are consistent with the terms of §
30.505(d).
(c) Rejected compensation payments, or
shares of compensation payments, shall not be distributed to other eligible
surviving beneficiaries, but shall be returned to the
Fund.
(d) No covered Part B employee may receive
more than one lump-sum payment under Part B of EEOICPA for any occupational
illnesses he or she contracted.
However, any individual, including a covered Part B employee who has
received a lump-sum payment for his or her own occupational illness or
illnesses, may receive one lump-sum payment for each deceased covered Part B
employee for whom he or she qualifies as an eligible surviving beneficiary under
Part B of the Act.
§
30.507 What compensation will be
provided to covered Part B employees who only establish beryllium sensitivity
under Part B of EEOICPA?
The establishment of
beryllium sensitivity does not entitle a covered Part B employee, or the
eligible surviving beneficiary or beneficiaries of a deceased covered Part B
employee, to any lump-sum payment provided for under Part B. Instead, a covered Part B employee whose
sole accepted occupational illness is beryllium sensitivity shall receive
beryllium sensitivity monitoring, as well as medical benefits for the treatment
of this occupational illness in accordance with § 30.400 of these
regulations.
§
30.508 What is beryllium
sensitivity monitoring?
Beryllium sensitivity
monitoring shall consist of medical examinations to confirm and monitor the
extent and nature of a covered Part B employee’s beryllium sensitivity. Monitoring shall also include regular
medical examinations, with diagnostic testing, to determine if the covered Part
B employee has established chronic beryllium disease.
§
30.509 Under what circumstances may
a survivor claiming under Part E of the Act choose to receive the benefits that
would otherwise be payable to a covered Part E employee who is
deceased?
(a) If a covered Part E employee dies after
filing a claim but before monetary benefits are paid under Part E of the Act,
and his or her death is from a cause other than a covered illness, his or her
survivor can choose to receive either the survivor benefits payable on account
of the death of that covered Part E employee, or the monetary benefits that
would otherwise have been payable to the covered Part E
employee.
(b) For the purposes of this section
only, a death “from a cause other than a covered illness” refers only to a
death that was solely caused by a non-covered illness
or illnesses. Therefore, the choice
referred to in paragraph (a) of this section will not be available if a covered
illness contributed to the death of the covered Part E employee in any
manner. In those instances,
survivor benefits will still be payable to the claimant, but he or she cannot
choose to receive the monetary benefits that would have otherwise been payable
to the deceased covered Part E employee in lieu of survivor
benefits.
(c) OWCP only makes impairment
determinations based on rationalized medical evidence in the case file that is
sufficiently detailed and meets the various requirements for the many different
types of impairment determinations possible under the AMA’s Guides. Therefore, OWCP will only make an
impairment determination for a deceased covered Part E employee pursuant to this
section if the medical evidence of record is sufficient to satisfy the pertinent
requirements in the AMA’s Guides and
subpart J of this part.
Overpayments
§
30.510 How does OWCP notify an
individual of a payment made on a claim?
(a) In addition to providing narrative
descriptions to recipients of benefits paid or payable, OWCP includes on each
check a clear indication of the reason the payment is being made. For payments sent by electronic funds
transfer, a notification of the date and amount of payment appears on the
statement from the recipient’s financial institution.
(b) By these means, OWCP puts the recipient
on notice that a payment was made and the amount of the payment. If the amount received differs from the
amount indicated on the written notice or bank statement, the recipient is
responsible for notifying OWCP of the difference. Absent affirmative evidence to the
contrary, the recipient will be presumed to have received the notice of payment,
whether mailed or transmitted electronically.
§
30.511 What is an “overpayment” for
purposes of EEOICPA?
An “overpayment” is any
amount of compensation paid under sections 7384s, 7384t, 7384u, 7385s-2 or
7385s-3 of the EEOICPA to a recipient that constitutes, as of the time OWCP
makes such payment:
(a) Payment where no amount is payable under
this part; or
(b) Payment in excess of the correct amount
determined by OWCP.
§
30.512 What does OWCP do when an
overpayment is identified?
Before seeking to recover an
overpayment or adjust benefits, OWCP will advise the recipient of the
overpayment in writing that:
(a) The overpayment exists, and the amount of
overpayment;
(b) A preliminary finding shows either that
the recipient was or was not at fault in the creation of the
overpayment;
(c) He or she has the right to inspect and
copy OWCP records relating to the overpayment; and
(d) He or she has the right to present
written evidence which challenges the fact or amount of the overpayment, and/or
challenges the preliminary finding that he or she was at fault in the creation
of the overpayment. He or she may
also request that recovery of the overpayment be waived. Any submission of evidence or request
that recovery of the overpayment be waived must be presented to OWCP within 30
days of the date of the written notice of overpayment.
§
30.513 Under what circumstances may
OWCP waive recovery of an overpayment?
(a) OWCP may consider waiving recovery of an
overpayment only if the recipient was not at fault in accepting or creating the
overpayment. Recipients of benefits
paid under EEOICPA are responsible
for taking all reasonable measures to ensure that payments received from OWCP
are proper. The recipient must show
good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of the
following will be found to be at fault with respect to creating an
overpayment:
(1) Made an incorrect statement as to a
material fact which he or she knew or should have known to be incorrect;
or
(2) Failed to provide information which he or
she knew or should have known to be material; or
(3) Accepted a payment which he or she knew
or should have known to be incorrect.
(This provision applies only to the overpaid
individual.)
(b) Whether or not OWCP determines that a
recipient was at fault with respect to the creation of an overpayment depends on
the circumstances surrounding the overpayment. The degree of care expected may vary
with the complexity of those circumstances and the recipient’s capacity to
realize that he or she is being overpaid.
§
30.514 If OWCP finds that the
recipient of an overpayment was not at fault, what criteria are used to decide
whether to waive recovery of it?
If OWCP finds that the
recipient of an overpayment was not at fault, repayment will still be required
unless:
(a) Adjustment or recovery of the overpayment
would defeat the purpose of the Act (see § 30.516); or
(b) Adjustment or recovery of the overpayment
would be against equity and good conscience (see §
30.517).
§
30.515 Is a recipient responsible
for an overpayment that resulted from an error made by
OWCP?
(a) The fact that OWCP may have erred in
making the overpayment does not by itself relieve the recipient of the
overpayment from liability for repayment if the recipient also was at fault in
accepting the overpayment.
(b) However, OWCP may find that the recipient
was not at fault if failure to report an event affecting compensation benefits,
or acceptance of an incorrect payment, occurred because:
(1) The recipient relied on misinformation
given in writing by OWCP regarding the interpretation of a pertinent provision
or EEOICPA of this part; or
(2) OWCP erred in calculating either the
percentage of impairment or wage-loss under Part E of
EEOICPA.
§
30.516 Under what circumstances
would recovery of an overpayment defeat the purpose of the
Act?
Recovery of an overpayment
will defeat the purpose of the Act if such recovery would cause hardship to the
recipient because:
(a) The recipient from whom OWCP seeks
recovery needs substantially all of his or her current income to meet current
ordinary and necessary living expenses; and
(b) The recipient’s assets do not exceed two
months’ expenditures as determined by OWCP using the Bureau of Labor Statistics
Consumer Expenditure Survey tables.
§
30.517 Under what circumstances
would recovery of an overpayment be against equity and good
conscience?
(a) Recovery of an overpayment is considered
to be against equity and good conscience when the recipient would experience
severe financial hardship in attempting to repay the debt.
(b) Recovery of an overpayment is also
considered to be against equity and good conscience when the recipient, in
reliance on such payments or on notice that such payments would be made, gives
up a valuable right or changes his or her position for the worse. In making such a decision, OWCP does not
consider the recipient’s current ability to repay the
overpayment.
(1) To establish that a valuable right has
been relinquished, it must be shown that the right was in fact valuable, that it
cannot be regained, and that the action was based chiefly or solely in reliance
on the payments or on the notice of payment. Gratuitous transfers of funds to other
individuals are not considered relinquishments of valuable
rights.
(2) To establish that a recipient’s position
has changed for the worse, it must be shown that the decision made would not
otherwise have been made but for the receipt of benefits, and that this decision
resulted in a loss.
§
30.518 Can OWCP require the
recipient of the overpayment to submit additional financial
information?
(a) The recipient of the overpayment is
responsible for providing information about income, expenses and assets as
specified by OWCP. This information
is needed to determine whether or not recovery of an overpayment would defeat
the purpose of the Act, or would be against equity and good conscience. This information will also be used to
determine the repayment schedule, if necessary.
(b) Failure to submit this requested
information within 30 days of the request shall result in denial of waiver, and
no further request for waiver shall be considered until the requested
information is furnished.
§
30.519 How does OWCP communicate
its final decision concerning recovery of an
overpayment?
(a) After considering any written
documentation or argument submitted to OWCP within the 30-day period set out in
§ 30.512(d), OWCP will issue a final decision on the overpayment. OWCP will send a copy of the final
decision to the individual from whom recovery is sought and his or her
representative, if any.
(b) The provisions of subpart D of this part
do not apply to any decision regarding the recovery of an
overpayment.
§
30.520 How are overpayments
collected?
(a) When an overpayment has been made to a
recipient who is entitled to further payments, the recipient shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. If
no refund is made, OWCP shall recover the overpayment by reducing any further
lump-sum payments due currently or in the future, taking into account the
financial circumstances of the recipient, and any other relevant factors, so as
to minimize any hardship. Should
the recipient die before collection has been completed, further collection shall
be made by decreasing later payments, if any, payable under EEOICPA with respect
to the underlying occupational illness or covered illness.
(b) When an overpayment has been made to a
recipient and OWCP is unable to recover the overpayment by reducing compensation
due currently, the recipient shall refund to OWCP the amount of the overpayment
as soon as the error is discovered or his or her attention is called to
same. The overpayment is subject to
the provisions of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et seq.), and may
be reported to the Internal Revenue Service as income. If the recipient fails to make such
refund, OWCP may recover the overpayment through any available means, including
offset of salary, annuity benefits, or other Federal payments, including tax
refunds as authorized by the Tax Refund Offset Program, or referral of the debt
to a collection agency or to the Department of Justice.
Subpart
G--Special Provisions
Representation
§
30.600 May a claimant designate a
representative?
(a) The claims process under this part is
informal, and OWCP acts as an impartial evaluator of the evidence. A claimant need not be represented to
file a claim or receive a payment.
Nevertheless, a claimant may appoint one individual to represent his or
her interests, but the appointment must be in writing.
(b) There can be only one representative at
any one time, so after one representative has been properly appointed, OWCP will
not recognize another individual as a representative until the claimant
withdraws the authorization of the first individual. In addition, OWCP will recognize only
certain types of individuals (see § 30.601). For the purposes of paragraph (b) of
this section, a “representative” does not include a person who only has a power
of attorney to act on behalf of a claimant.
(c) A properly appointed representative who
is recognized by OWCP may make a request or give direction to OWCP regarding the
claims process, including a hearing.
This authority includes presenting or eliciting evidence, making
arguments on facts or the law, and obtaining information from the case file, to
the same extent as the claimant.
(1) Any notice requirement contained in this
part or EEOICPA is fully satisfied if served on the representative, and has the
same force and effect as if sent to the claimant.
(2) A representative does not have authority
to sign the Form EN-20, described in § 30.505(c) of these regulations, which
collects information necessary for issuance of a compensation
payment.
§
30.601 Who may serve as a
representative?
A claimant may authorize any
individual to represent him or her in regard to a claim under EEOICPA, unless
that individual’s service as a representative would violate any applicable
provision of law (such as 18 U.S.C. 205 and 208). A federal employee may act as a
representative only:
(a) On behalf of immediate family members,
defined as a spouse, children, parents, and siblings of the representative,
provided no fee or gratuity is charged; or
(b) While acting as a union representative,
defined as any officially sanctioned union official, and no fee or gratuity is
charged.
§
30.602 Who is responsible for
paying the representative’s fee?
A representative may charge
the claimant a fee for services and for costs associated with the representation
before OWCP. The claimant is solely
responsible for paying the fee and other costs. OWCP will not reimburse the claimant,
nor is it in any way liable for the amount of the fee and
costs.
§
30.603 Are there any limitations on
what the representative may charge the claimant for his or her
services?
(a) Notwithstanding any contract, the
representative may not receive, for services rendered in connection with a claim
pending before OWCP, more than the percentages of the lump-sum payment made to
the claimant set out in paragraph (b) of this section.
(b) The percentages referred to in paragraph
(a) of this section are:
(1) 2 percent for the filing of an initial
claim with OWCP, provided that the representative was retained prior to the
filing of the initial claim; plus
(2) 10 percent of the difference between the
lump-sum payment made to the claimant and the amount proposed in the recommended
decision with respect to objections to a recommended
decision.
(c)(1) Any representative who violates this
section shall be fined not more than $5,000.
(2) The authority to prosecute violations of
this limitation lies with the Department of Justice.
(d) The fee limitations described in this
section shall not apply with respect to representative services that are
rendered in connection with a petition filed with a U.S. District Court seeking
review of an OWCP decision that is final pursuant to § 30.316(d), or with
respect to any subsequent appeal in such a
proceeding.
Third Party
Liability
§
30.605 What rights does the
If an occupational illness
or covered illness for which compensation is payable under EEOICPA is caused, wholly or partially,
by someone other than a federal employee acting within the scope of his or her
employment, a DOE contractor or subcontractor, a beryllium vendor, an atomic
weapons employer or a RECA section 5 mine or mill, the United States is
subrogated for the full amount of any payment of compensation under EEOICPA to
any right or claim that the individual to whom the payment was made may have
against any person or entity on account of such occupational illness or covered
illness.
§
30.606 Under what circumstances
must a recovery of money or other property in connection with an illness for
which benefits are payable under EEOICPA be reported to OWCP?
Any person who has filed an
EEOICPA claim that has been accepted by OWCP (whether or not compensation has
been paid), or who has received EEOICPA benefits in connection with a claim
filed by another, is required to notify OWCP of the receipt of money or other
property as a result of a settlement or judgment in connection with the
circumstances of that claim.
§
30.607 How is a structured
settlement (that is, a settlement providing for receipt of funds over a
specified period of time) treated for purposes of reporting the
recovery?
In this situation, the
recovery to be reported is the present value of the right to receive all of the
payments included in the structured settlement, allocated in the case of
multiple recipients in the same manner as single payment
recoveries.
§
30.608 How does the
The subrogated amount of a
specific claim consists of the total money paid by OWCP from the Energy
Employees Occupational Illness Compensation Fund with respect to that claim to
or on behalf of a covered Part B employee, a covered Part E employee or an
eligible surviving beneficiary, less charges for any medical file review
(i.e., the physician did not examine the employee) done at the request of
OWCP. Charges for medical
examinations also may be subtracted if the covered Part B employee, covered Part
E employee or an eligible surviving beneficiary establishes that the
examinations were required to be made available to the covered Part B employee
or covered Part E employee under a statute other than
EEOICPA.
§
30.609 Is a settlement or judgment
received as a result of allegations of medical malpractice in treating an
illness covered by EEOICPA a recovery that must be reported to
OWCP?
Since an injury caused by
medical malpractice in treating an occupational illness or covered illness
compensable under EEOICPA is also covered under EEOICPA, any recovery in a suit
alleging such an injury is treated as a recovery that must be reported to
OWCP.
§
30.610 Are payments to a covered
Part B employee, a covered Part E employee or an eligible surviving beneficiary
as a result of an insurance policy which the employee or eligible surviving
beneficiary has purchased a recovery that must be reported to
OWCP?
Since payments received by a
covered Part B employee, a covered Part E employee or an eligible surviving
beneficiary pursuant to an insurance policy purchased by someone other than a
liable third party are not payments in satisfaction of liability for causing an
occupational illness or covered illness compensable under the Act, they are not
considered a recovery that must be reported to OWCP.
§
30.611 If a settlement or judgment
is received for more than one medical condition, can the amount paid on a single
EEOICPA claim be attributed to different conditions for purposes of calculating
the amount to which the United States is subrogated?
(a) All medical conditions accepted by OWCP
in connection with a single claim are treated as the same illness for the
purpose of computing the amount which the United States is entitled to offset in
connection with the receipt of a recovery from a third party, except that an
injury caused by medical malpractice in treating an illness covered under EEOICPA will be treated as a separate
injury.
(b) If an illness covered under EEOICPA is
caused under circumstances creating a legal liability in more than one person,
other than the United States, a DOE contractor or subcontractor, a beryllium
vendor or an atomic weapons employer, to pay damages, OWCP will determine
whether recoveries received from one or more third parties should be attributed
to separate conditions for which compensation is payable in connection with a
single EEOICPA claim. If such an
attribution is both practicable and equitable, as determined by OWCP, in its
discretion, the conditions will be treated as separate injuries for purposes of
calculating the amount to which the
Effect of Tort Suits Against
Beryllium Vendors and Atomic Weapons Employers
§ 30.615 What type of tort suits filed against
beryllium vendors or atomic weapons employers may disqualify certain claimants
from receiving benefits under Part B of EEOICPA?
(a) A tort suit (other than an
administrative or judicial proceeding for workers’ compensation) that includes a claim arising out of a
covered Part B employee’s employment-related exposure to beryllium or radiation,
filed against a beryllium vendor or an atomic weapons employer, by a covered
Part B employee or an eligible surviving beneficiary or beneficiaries of a
deceased covered Part B employee, will disqualify that otherwise eligible
individual or individuals from receiving benefits under Part B of EEOICPA unless
such claim is terminated in accordance with the requirements of §§ 30.616
through 30.619 of these regulations.
(b) The term “claim arising out of a covered
Part B employee’s employment-related exposure to beryllium or radiation” used in
paragraph (a) of this section includes a claim that is derivative of a covered
Part B employee’s employment-related exposure to beryllium or radiation, such as
a claim for loss of consortium raised by a covered Part B employee’s
spouse.
(c) If all claims arising out of a covered
Part B employee’s employment-related exposure to beryllium or radiation are
terminated in accordance with the requirements of §§ 30.616 through 30.619 of
these regulations, proceeding with the remaining portion of the tort suit filed
against a beryllium vendor or an atomic weapons employer will not disqualify an
otherwise eligible individual or individuals from receiving benefits under Part
B of EEOICPA.
§
30.616 What happens if this type of
tort suit was filed prior to
(a) If a tort suit described in § 30.615 was
filed prior to October 30, 2000, the claimant or claimants will not be
disqualified from receiving any EEOICPA benefits to which they may be found
entitled if the tort suit was terminated in any manner prior to December 28,
2001.
(b) If a tort suit described in § 30.615 was
filed prior to October 30, 2000 and was pending as of December 28, 2001, the
claimant or claimants will be disqualified from receiving any benefits under
Part B of EEOICPA unless they dismissed all claims arising out of a covered Part
B employee’s employment-related exposure to beryllium or radiation that were
included in the tort suit prior to December 31, 2003.
§
30.617 What happens if this type of
tort suit was filed during the period from
(a) If a tort suit described in § 30.615 was
filed during the period from October 30, 2000 through December 28, 2001, the
claimant or claimants will be disqualified from receiving any benefits under
Part B of EEOICPA unless they dismiss all claims arising out of a covered Part B
employee’s employment-related exposure to beryllium or radiation that are
included in the tort suit on or before the last permissible date described in
paragraph (b) of this section.
(b) The last permissible date is the later
of:
(1)
(2) The date that is 30 months after the
date the claimant or claimants first became aware that an illness of the covered
Part B employee may be connected to his or her exposure to beryllium or
radiation covered by EEOICPA. For
purposes of determining when this 30-month period begins, “the date the claimant
or claimants first became aware” will be deemed to be the date they received
either a reconstructed dose from HHS, or a diagnosis of a covered beryllium
illness, as applicable.
§
30.618 What happens if this type of
tort suit was filed after
(a) If a tort suit described in § 30.615 was
filed after
(b) If a tort suit described in § 30.615 was
filed after December 28, 2001 and a judgment has not yet been entered against
the claimant or claimants, they will also be disqualified from receiving any
benefits under Part B of EEOICPA unless, prior to entry of any judgment, they
dismiss all claims arising out of a covered Part B employee’s employment-related
exposure to beryllium or radiation that are included in the tort suit on or
before the last permissible date described in paragraph (c) of this
section.
(c) The last permissible date is the later
of:
(1)
(2) The date that is 30 months after the
date the claimant or claimants first became aware that an illness of the covered
Part B employee may be connected to his or her exposure to beryllium or
radiation covered by EEOICPA. For
purposes of determining when this 30-month period begins, “the date the claimant
or claimants first became aware” will be deemed to be the date they received
either a reconstructed dose from HHS, or a diagnosis of a covered beryllium
illness, as applicable.
§
30.619 Do all the parties to this
type of tort suit have to take these actions?
The type of tort suits
described in § 30.615 may be filed by more than one individual, each with a
different cause of action. For
example, a tort suit may be filed against a beryllium vendor by both a covered
Part B employee and his or her spouse, with the covered Part B employee claiming
for chronic beryllium disease and the spouse claiming for loss of consortium due
to the covered Part B employee’s exposure to beryllium. However, since the spouse of a living
covered Part B employee could not be an eligible surviving beneficiary under
Part B of EEOICPA, the spouse would
not have to comply with the termination requirements of §§ 30.616 through
30.618. A similar result would
occur if a tort suit were filed by both the spouse of a deceased covered Part B
employee and other family members (such as children of the deceased covered part
B employee). In this case, the
spouse would be the only eligible surviving beneficiary of the deceased covered
Part B employee under Part B of the EEOICPA because the other family members
could not be eligible for benefits while he or she was alive. As a result, the spouse would be the
only party to the tort suit who would have to comply with the termination
requirements of §§ 30.616 through 30.618.
§ 30.620 How will OWCP ascertain whether a
claimant filed this type of tort suit and if he or she has been disqualified
from receiving any benefits under Part B of EEOICPA?
Prior to authorizing payment
on a claim under Part B of EEOICPA, OWCP will require each claimant to execute
and provide an affidavit stating if he or she filed a tort suit (other than an
administrative or judicial proceeding for workers’ compensation) against either
a beryllium vendor or an atomic weapons employer that included a claim arising
out of a covered Part B employee’s employment-related exposure to beryllium or
radiation, and if so, the current status of such tort suit. OWCP may also require the submission of
any supporting evidence necessary to confirm the particulars of any affidavit
provided under this section.
Coordination of Part E
Benefits with State Workers’ Compensation Benefits
§ 30.625 What does “coordination of benefits”
mean under Part E of EEOICPA?
In general, “coordination of
benefits” under Part E of the Act occurs when compensation to be received under
Part E is reduced by OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect
certain benefits the beneficiary receives under a state workers’ compensation
program for the same covered illne
§ 30.626 How will OWCP coordinate compensation
payable under Part E of EEOICPA with benefits from state workers’ compensation
programs?
(a) OWCP will reduce the compensation
payable under Part E by the amount of benefits the claimant receives from a
state workers’ compensation program by reason of the same covered illness, after
deducting the reasonable costs to the claimant of obtaining those
benefits.
(b) To determine the amount of any reduction
of EEOICPA compensation, OWCP shall require the covered Part E employee or each
eligible surviving beneficiary filing a claim under Part E to execute and
provide affidavits reporting the amount of any benefit received pursuant to a
claim filed in a state workers’ compensation program for the same covered
illness.
(c) If a covered Part E employee or a
survivor of such employee receives benefits through a state workers’
compensation program pursuant to a claim for the same covered illness, OWCP
shall reduce a portion of the dollar amount of such state workers’ benefit from
the compensation payable under Part E.
OWCP will calculate the net amount of the state workers’ compensation
benefit amount to be subtracted from the compensation payment under Part E in
the following manner:
(1) OWCP will first determine the dollar
value of the benefits received by that individual from a state workers’
compensation program by including all benefits, other than medical and
vocational rehabilitation benefits, received for the same covered
illne
(2) OWCP will then make certain deductions
from the above dollar benefit received under a state workers’ compensation
program to arrive at the dollar amount that will be subtracted from any
compensation payable under Part E of EEOICPA.
(i) Allowable deductions consist of
reasonable costs in obtaining state workers’ compensation benefits incurred by
that individual, including but not limited to attorney’s fees OWCP deems
reasonable and itemized costs of suit (out-of-pocket expenditures not part of
the normal overhead of a law firm’s operation like filing, travel expenses,
witne
(ii) The EEOICPA benefits that will be
reduced will consist of any unpaid monetary payments payable in the future and
medical benefits payable in the future.
In those cases where it has not yet paid EEOICPA benefits under Part E,
OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the
current monetary payments first. If
the amount to be subtracted exceeds the monetary payments currently payable,
OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the
amount of any remaining surplus.
This means that OWCP will apply the amount it would otherwise pay to
reimburse the covered Part E employee for any ongoing EEOICPA medical treatment
to the remaining surplus until it is absorbed (or until further monetary
benefits become payable that are sufficient to absorb the
surplus).
(3) The above coordination of benefits will
not occur if the beneficiary under a state workers’ compensation program
receives state workers’ compensation benefits for both a covered and a
non-covered illne
§ 30.627 Under what circumstances will OWCP waive
the statutory requirement to coordinate these
benefits?
A waiver to the requirement
to coordinate Part E benefits with benefits paid under a state workers’
compensation program may be granted if OWCP determines that the administrative
costs and burdens of coordinating benefits in a particular case or
cla
Subpart
H--Information for Medical Providers
Medical
Records and Bills
§
30.700 What kinds of medical
records must providers keep?
Federal government medical
officers, private physicians and hospitals are required to keep records of all
cases treated by them under EEOICPA so they can supply OWCP with a history of
the claimed occupational illness or covered illness, a description of the nature
and extent of the claimed occupational illness or covered illness, the results
of any diagnostic studies performed, and the nature of the treatment
rendered. This requirement
terminates after a provider has supplied OWCP with the above-noted information,
and otherwise terminates ten years after the record was
created.
§ 30.701 How are medical bills to be
submitted?
(a) All charges for medical and surgical
treatment, appliances or supplies furnished to employees, except for treatment
and supplies provided by nursing homes, shall be supported by medical evidence
as provided in § 30.700. The
physician or provider shall itemize the charges on Form OWCP-1500 or CMS-1500
(for professional charges), Form OWCP-04 or UB-04 (for hospitals), an electronic
or paper-based bill that includes required data elements (for pharmacies), or
other form as warranted, and submit the form or bill promptly for
processing.
(b) The provider shall identify each service
performed using the Physician’s Current Procedural Terminology (CPT) code, the
Healthcare Common Procedure Coding System (HCPCS) code, the National Drug Code
(NDC) number, or the Revenue Center Code (RCC), with a brief narrative
description. Where no code is
applicable, a detailed description of services performed should be
provided.
(c) For professional charges billed on Form
OWCP-1500 or CMS-1500, the provider shall also state each diagnosed condition
and furnish the corresponding diagnostic code using the “International
Classification of Disease, 9th Edition, Clinical Modification” (ICD-9-CM), or as
revised. A separate bill shall be
submitted when the employee is discharged from treatment or monthly, if
treatment for the occupational illness is necessary for more than 30
days.
(1)(i) Hospitals shall submit charges for
medical and surgical treatment or supplies promptly on Form OWCP-04 or
UB-04. The provider shall identify
each outpatient radiology service, outpatient pathology service and physical
therapy service performed, using HCPCS/CPT codes with a brief narrative
description. The charge for each
individual service, or the total charge for all identical services, should also
appear on the form.
(ii) Other outpatient hospital services for
which HCPCS/CPT codes exist shall also be coded individually using the coding
scheme noted in this section.
Services for which there are no HCPCS/CPT codes available can be
presented using the RCCs described in the “National Uniform Billing Data
Elements Specifications,” current edition.
The provider shall also furnish the diagnostic code using the
ICD-9-CM. If the outpatient
hospital services include surgical and/or invasive procedures, the provider
shall code each procedure using the proper HCPCS/CPT codes and furnishing the
corresponding diagnostic codes using the ICD-9-CM.
(2) Pharmacies shall itemize charges for
prescription medications, appliances, or supplies on electronic or paper-based
bills and submit them promptly for processing. Bills for prescription medications must
include all required data elements, including the NDC number assigned to the
product, the generic or trade name of the drug provided, the prescription
number, the quantity provided, and the date the prescription was
filled.
(3) Nursing homes shall itemize charges for
appliances, supplies or services on the provider’s billhead stationery and
submit them promptly for processing.
(d) By submitting a bill and/or accepting
payment, the provider signifies that the service for which payment is sought was
performed as described and was necessary.
In addition, the provider thereby agrees to comply with all regulations
set forth in this subpart concerning the rendering of treatment and/or the
process for seeking payment for medical services, including the limitation
imposed on the amount to be paid for such services.
(e) In summary, bills submitted by providers
must: be itemized on Form OWCP-1500
or CMS-1500 (for physicians), Form OWCP-04 or UB-04 (for hospitals), or an
electronic or paper-based bill that includes required data elements (for
pharmacies); contain the signature or signature stamp of the provider; and
identify the procedures using HCPCS/CPT codes, RCCs, or NDC numbers. Otherwise, the bill may be returned to
the provider for correction and resubmission. The decision of OWCP whether to pay a
provider’s bill is final when issued and is not subject to the adjudicatory
process described in subpart D of this part.
§
30.702 How should an employee
prepare and submit requests for reimbursement for medical expenses,
transportation costs, loss of wages, and incidental expenses?
(a) If an employee has paid bills for
medical, surgical or other services, supplies or appliances provided by a
professional due to an occupational illness or a covered illness, he or she must
submit a request for reimbursement on Form OWCP-915, together with an itemized
bill on Form OWCP-1500 or CMS-1500 prepared by the provider and a medical report
as provided in § 30.700, for consideration.
(1) The provider of such service shall state
each diagnosed condition and furnish the applicable ICD-9-CM code and identify
each service performed using the applicable HCPCS/CPT code, with a brief
narrative description of the service performed, or, where no code is applicable,
a detailed description of that service.
(2) The reimbursement request must be
accompanied by evidence that the provider received payment for the service from
the employee and a statement of the amount paid. Acceptable evidence that payment was
received includes, but is not limited to, a signed statement by the provider, a
mechanical stamp or other device showing receipt of payment, a copy of the
employee’s canceled check (both front and back) or a copy of the employee’s
credit card receipt.
(b) If a hospital, pharmacy or nursing home
provided services for which the employee paid, the employee must also use Form
OWCP-915 to request reimbursement and should submit the request in accordance
with the provisions of § 30.701(a).
Any such request for reimbursement must be accompanied by evidence, as
described in paragraph (a)(2) of this section, that the provider received
payment for the service from the employee and a statement of the amount
paid.
(c) The requirements of paragraphs (a) and
(b) of this section may be waived if extensive delays in the filing or the
adjudication of a claim make it unusually difficult for the employee to obtain
the required information.
(d) Copies of bills submitted for
reimbursement will not be accepted unless they bear the original signature of
the provider and evidence of payment.
Payment for medical and surgical treatment, appliances or supplies shall
in general be no greater than the maximum allowable charge for such service
determined by OWCP, as set forth in § 30.705. The decision of OWCP whether to
reimburse an employee for out-of-pocket medical expenses, and the amount of any
reimbursement, is final when issued and is not subject to the adjudicatory
process described in subpart D of this part.
(e) An employee will be only partially
reimbursed for a medical expense if the amount he or she paid to a provider for
the service exceeds the maximum allowable charge set by OWCP’s schedule. If this happens, the employee will be
advised of the maximum allowable charge for the service in question and of his
or her responsibility to ask the provider to refund to the employee, or credit
to the employee’s account, the amount he or she paid which exceeds the maximum
allowable charge. The provider that
the employee paid, but not the employee, may request reconsideration of the fee
determination as set forth in § 30.712.
(f) If the provider fails to make
appropriate refund to the employee, or to credit the employee’s account, within
60 days after the employee requests a refund of any excess amount, or the date
of a subsequent reconsideration decision which continues to disallow all or a
portion of the disputed amount, OWCP will initiate exclusion procedures as
provided by § 30.715.
(g) If the provider does not refund to the
employee or credit to his or her account the amount of money paid in excess of
the allowed charge, the employee should submit documentation of the attempt to
obtain such refund or credit to OWCP.
OWCP may authorize reasonable reimbursement to the employee after
reviewing the facts and circumstances of the case.
§
30.703 What are the time
limitations on OWCP’s payment of bills?
OWCP will pay providers and
reimburse employees promptly for all bills received on an approved form and in a
timely manner. However, no bill
will be paid for expenses incurred if the bill is submitted more than one year
beyond the end of the calendar year in which the expense was incurred or the
service or supply was provided, or more than one year beyond the end of the
calendar year in which the claim was first accepted as compensable by OWCP,
whichever is later.
Medical
Fee Schedule
§
30.705 What services are covered by
the OWCP fee schedule?
(a) Payment for medical and other health
services furnished by physicians, hospitals and other providers for occupational
illnesses or covered illnesses shall not exceed a maximum allowable charge for
such service as determined by OWCP, except as provided in this
section.
(b) The schedule of maximum allowable
charges does not apply to charges for services provided in nursing homes, but it
does apply to charges for treatment furnished in a nursing home by a physician
or other medical professional.
(c) The schedule of maximum allowable
charges also does not apply to charges for appliances, supplies, services or
treatment furnished by medical facilities of the U.S. Public Health Service or
the Departments of the Army, Navy, Air Force and Veterans
Affairs.
§
30.706 How are the maximum fees
defined?
For professional medical
services, OWCP shall maintain a schedule of maximum allowable fees for
procedures performed in a given locality.
The schedule shall consist of:
an assignment of a value to procedures identified by HCPCS/CPT code which
represents the relative skill, effort, risk and time required to perform the
procedure, as compared to other procedures of the same general class; an index
based on a relative value scale that considers skill, labor, overhead, malpractice
insurance and other related costs; and a monetary value assignment (conversion
factor) for one unit of value in each of the categories of
service.
§
30.707 How are payments for
particular services calculated?
Payment for a procedure identified
by a HCPCS/CPT code shall not exceed the amount derived by multiplying the
relative values for that procedure by the geographic indices for services in
that area and by the dollar amount assigned to one unit in that category of
service.
(a) The “locality” which serves as a basis
for the determination of average cost is defined by the Bureau of Census
Metropolitan Statistical Areas.
OWCP shall base the determination of the relative per capita cost of
medical care in a locality using information about enrollment and medical cost
per county, provided by the Centers for Medicare and Medicaid Services
(CMS).
(b) OWCP shall assign the relative value
units (RVUs) published by CMS to all services for which CMS has made
assignments, using the most recent revision. Where there are no RVUs assigned to a
procedure, OWCP may develop and assign any RVUs considered appropriate. The geographic adjustment factor shall
be that designated by Geographic Practice Cost Indices for Metropolitan
Statistical Areas as devised for CMS and as updated or revised by CMS from time
to time. OWCP will devise
conversion factors for each category of service, and in doing so may adapt CMS
conversion factors as appropriate using OWCP’s processing experience and
internal data.
(c) For example, if the unit values for a
particular surgical procedure are 2.48 for physician’s work (W), 3.63 for
practice expense (PE), and 0.48 for malpractice insurance (M), and the dollar
value assigned to one unit in that category of service (surgery) is $61.20, then
the maximum allowable charge for one performance of that procedure is the
product of the three RVUs times the corresponding geographical indices for the
locality times the conversion factor.
If the geographic indices for the locality are 0.988(W), 0.948 (PE), and
1.174 (M), then the maximum payment calculation is:
[(2.48)(0.988)
+ (3.63)(0.948) + (0.48)(1.174)]
x
$61.20
[2.45
+ 3.44 + .56] x $61.20
6.45 x
$61.20 = $394.74
§
30.708 Does the fee schedule apply
to every kind of procedure?
Where the time, effort and
skill required to perform a particular procedure vary widely from one occasion
to the next, OWCP may choose not to assign a relative value to that
procedure. In this case the
allowable charge for the procedure will be set individually based on
consideration of a detailed medical report and other evidence. At its discretion, OWCP may set fees
without regard to schedule limits for specially authorized consultant
examinations, for directed medical examinations, and for other specially
authorized services.
§
30.709 How are payments for
medicinal drugs determined?
Payment for medicinal drugs
prescribed by physicians shall not exceed the amount derived by multiplying the
average wholesale price of the medication by the quantity or amount provided,
plus a dispensing fee.
(a) All prescription medications identified
by NDC number will be assigned an average wholesale price representing the
product’s nationally recognized wholesale price as determined by surveys of
manufacturers and wholesalers. OWCP
will establish the dispensing fee.
(b) The NDC numbers, the average wholesale
prices, and the dispensing fee shall be reviewed from time to time and updated
as necessary.
§
30.710 How are payments for
inpatient medical services determined?
(a) OWCP will pay for inpatient medical
services according to pre-determined, condition-specific rates based on the
Prospective Payment System (PPS) devised by CMS (42 CFR parts 412, 413, 424,
485, and 489). Using this system,
payment is derived by multiplying the diagnosis-related group (DRG) weight
assigned to the hospital discharge by the provider-specific
factors.
(1) All hospital discharges will be
classified according to the DRGs prescribed by CMS in the form of the DRG
Grouper software program. On this
list, each DRG represents the average resources necessary to provide care in a
case in that DRG relative to the national average of resources consumed per
case.
(2) The provider-specific factors will be
provided by CMS in the form of their PPS Pricer software program. The software takes into consideration
the type of facility, census division, actual geographic location of the
hospital, case mix cost per discharge, number of hospital beds, intern/beds
ratio, operating cost to charge ratio, and other factors used by CMS to
determine the specific rate for a hospital discharge under their PPS. OWCP may devise price adjustment factors
as appropriate using OWCP’s processing experience and internal
data.
(3) OWCP will base payments to facilities
excluded from CMS’s PPS on consideration of detailed medical reports and other
evidence.
(4) OWCP shall review the pre-determined
hospital rates at least once a year, and may adjust any or all components when
OWCP deems it necessary or appropriate.
(b) OWCP shall review the schedule of fees
at least once a year, and may adjust the schedule or any of its components when
OWCP deems it necessary or appropriate.
§
30.711 When and how are fees
reduced?
(a) OWCP shall accept a provider’s
designation of the code to identify a billed procedure or service if the code is
consistent with medical reports and other evidence. Where no code is supplied, OWCP may
determine the code based on the narrative description of the procedure on the
billing form and in associated medical reports. OWCP will pay no more than the maximum
allowable fee for that procedure.
(b) If the charge submitted for a service
supplied to an employee exceeds the maximum amount determined to be reasonable
according to the schedule, OWCP shall pay the amount allowed by the schedule for
that service and shall notify the provider in writing that payment was reduced
for that service in accordance with the schedule. OWCP shall also notify the provider of
the method for requesting reconsideration of the balance of the charge. The decision of OWCP to pay less than
the charged amount is final when issued and is not subject to the adjudicatory
process described in subpart D of this part.
§
30.712 If OWCP reduces a fee, may a
provider request reconsideration of the reduction?
(a) A physician or other provider whose
charge for service is only partially paid because it exceeds a maximum allowable
amount set by OWCP may, within 30 days, request reconsideration of the fee
determination.
(1) Any such request will be considered by
the district office with jurisdiction over the employee’s claim. The request must be accompanied by
documentary evidence that the procedure performed was either incorrectly
identified by the original code, that the presence of a severe or concomitant
medical condition made treatment especially difficult, or that the provider
possessed unusual qualifications.
In itself, board certification in a specialty is not sufficient evidence
of unusual qualifications to justify a charge in excess of the maximum allowable
amount set by OWCP. These are the
only three circumstances that will justify reevaluation of the paid
amount.
(2) A list of district offices and their
respective areas of jurisdiction is available upon request from the U.S.
Department of Labor,
Office of Workers’ Compensation Programs,
eeoicp/main.htm. Within 30 days of receiving the request
for reconsideration, the district office shall respond in writing stating
whether or not an additional amount will be allowed as reasonable, considering
the evidence submitted.
(b) If the district office issues a decision
that continues to disallow a contested amount, the provider may apply to the
Regional Director of the region with jurisdiction over the district office. The application must be filed within 30
days of the date of such decision, and it may be accompanied by additional
evidence. Within 60 days of receipt
of such application, the Regional Director shall issue a decision in writing
stating whether or not an additional amount will be allowed as reasonable,
considering the evidence submitted.
§
30.713 If OWCP reduces a fee, may a
provider bill the employee for the balance?
A provider whose fee for
service is partially paid by OWCP as a result of the application of its fee
schedule or other tests for reasonableness in accordance with this part shall
not request payment from the employee for the unpaid amount of the provider’s
bill.
(a) Where a provider’s fee for a particular
service or procedure is lower to the general public than as provided by the
schedule of maximum allowable charges, the provider shall bill at the lower
rate. A fee for a particular
service or procedure which is higher than the provider’s fee to the general
public for that same service or procedure will be considered a charge
“substantially in excess of such provider’s customary charges” for the purposes
of § 30.715(d).
(b) A provider whose fee for service is
partially paid by OWCP as the result of the application of the schedule of
maximum allowable charges and who collects or attempts to collect from the
employee, either directly or through a collection agent, any amount in excess of
the charge allowed by OWCP, and who does not cease such action or make
appropriate refund to the employee within 60 days of the date of the decision of
OWCP, shall be subject to the exclusion procedures provided by §
30.715(h).
Exclusion
of Providers
§
30.715 What are the grounds for
excluding a provider from payment under this part?
A physician, hospital, or
provider of medical services or supplies shall be excluded from payment under
this part if such physician, hospital or provider has:
(a) Been convicted under any criminal
statute of fraudulent activities in connection with any federal or state program
for which payments are made to providers for similar medical, surgical or
hospital services, appliances or supplies;
(b) Been excluded or suspended, or has
resigned in lieu of exclusion or suspension, from participation in any federal
or state program referred to in paragraph (a) of this
section;
(c) Knowingly made, or caused to be made,
any false statement or misrepresentation of a material fact in connection with a
determination of the right to reimbursement under this part, or in connection
with a request for payment;
(d) Submitted, or caused to be submitted,
three or more bills or requests for payment within a 12-month period under this
subpart containing charges which OWCP finds to be substantially in excess of
such provider’s customary charges, unless OWCP finds there is good cause for the
bills or requests containing such charges;
(e) Knowingly failed to timely reimburse
employees for treatment, services or supplies furnished under this subpart and
paid for by OWCP;
(f) Failed, neglected or refused on three or
more occasions during a 12-month period to submit full and accurate medical
reports, or to respond to requests by OWCP for additional reports or
information, as required by § 30.700 of this part;
(g) Knowingly furnished treatment, services
or supplies which are substantially in excess of the employee’s needs, or of a
quality which fails to meet professionally recognized standards;
or
(h) Collected or attempted to collect from
the employee, either directly or through a collection agent, an amount in excess
of the charge allowed by OWCP for the procedure performed, and has failed or
refused to make appropriate refund to the employee, or to cease such collection
attempts, within 60 days of the date of the decision of
OWCP.
§
30.716 What will cause OWCP to
automatically exclude a physician or other provider of medical services and
supplies?
(a) OWCP shall automatically exclude a
physician, hospital, or provider of medical services or supplies
who:
(1) Has been convicted of a crime described
in § 30.715(a); or
(2) Has been excluded or suspended, or has
resigned in lieu of exclusion or suspension, from participation in any federal
or state program for which payments are made to providers for similar medical,
surgical or hospital services, appliances or supplies.
(b) The exclusion applies to participating
in the program and to seeking payment under this part for services performed
after the date of the entry of the judgment of conviction or order of exclusion,
suspension or resignation, as the case may be, by the court or agency
concerned. Proof of the conviction,
exclusion, suspension or resignation may consist of a copy thereof authenticated
by the seal of the court or agency concerned.
§
30.717 When are OWCP’s exclusion
procedures initiated?
Upon receipt of information
indicating that a physician, hospital or provider of medical services or
supplies (hereinafter the provider) has engaged in activities enumerated in
paragraphs (c) through (h) of § 30.715, the Regional Director, after completion
of inquiries he or she deems appropriate, may initiate procedures to exclude the
provider from participation in the EEOICPA program. For the purposes of these procedures,
“Regional Director” may include any officer designated to act on his or her
behalf.
§
30.718 How is a provider notified
of OWCP’s intent to exclude him or her?
The Regional Director shall
initiate the exclusion process by sending the provider a letter, by certified
mail and with return receipt requested, which shall contain the
following:
(a) A concise statement of the grounds upon
which exclusion shall be based;
(b) A summary of the information, with
supporting documentation, upon which the Regional Director has relied in
reaching an initial decision that exclusion proceedings should
begin;
(c) An invitation to the provider
to:
(1) Resign voluntarily from participation in
the EEOICPA program without admitting or denying the allegations presented in
the letter; or
(2) Request that the decision on exclusion
be based upon the existing record and any additional documentary information the
provider may wish to furnish;
(d) A notice of the provider’s right, in the
event of an adverse ruling by the Regional Director, to request a formal hearing
before an administrative law judge;
(e) A notice that should the provider fail
to answer (as described in § 30.719) the letter of intent within 30 calendar
days of receipt, the Regional Director may deem the allegations made therein to
be true and may order exclusion of the provider without conducting any further
proceedings; and
(f) The name and address of the OWCP
representative who shall be responsible for receiving the answer from the
provider.
§
30.719 What requirements must the
provider’s reply and OWCP’s decision meet?
(a) The provider’s answer shall be in
writing and shall include an answer to OWCP’s invitation to resign
voluntarily. If the provider does
not offer to resign, he or she shall request that a determination be made upon
the existing record and any additional information
provided.
(b) Should the provider fail to answer the
letter of intent within 30 calendar days of receipt, the Regional Director may
deem the allegations made therein to be true and may order exclusion of the
provider.
(c) By arrangement with the OWCP
representative, the provider may inspect or request copies of information in the
record at any time prior to the Regional Director’s
decision.
(d) The Regional Director shall issue his or
her decision in writing, and shall send a copy of the decision to the provider
by certified mail, return receipt requested. The decision shall advise the provider
of his or her right to request, within 30 days of the date of the adverse
decision, a formal hearing before an administrative law judge under the
procedures set forth in § 30.720.
The filing of a request for a hearing within the time specified shall
stay the effectiveness of the decision to exclude.
§
30.720 How can an excluded provider
request a hearing?
A request for a hearing
shall be sent to the OWCP representative named pursuant to § 30.718(f) and shall
contain:
(a) A concise notice of the issues on which
the provider desires to give evidence at the hearing;
(b) Any request for a more definite
statement by OWCP;
(c) Any request for the presentation of oral
argument or evidence; and
(d) Any request for a certification of
questions concerning professional medical standards, medical ethics or medical
regulation for an advisory opinion from a competent recognized professional
organization or federal, state or local regulatory body.
§
30.721 How are hearings assigned
and scheduled?
(a) If the designated OWCP representative
receives a timely request for hearing, the OWCP representative shall refer the
matter to the Chief Administrative Law Judge of the Department of Labor, who shall assign it for an
expedited hearing. The
administrative law judge assigned to the matter shall consider the request for
hearing, act on all requests therein, and issue a Notice of Hearing and Hearing
Schedule for the conduct of the hearing.
A copy of the hearing notice shall be served on the provider by certified
mail, return receipt requested. The
Notice of Hearing and Hearing Schedule shall include:
(1) A ruling on each item raised in the
request for hearing;
(2) A schedule for the prompt disposition of
all preliminary matters, including requests for more definite statements and for
the certification of questions to advisory bodies; and
(3) A scheduled hearing date not less than
30 days after the date the schedule is issued, and not less than 15 days after
the scheduled conclusion of preliminary matters, provided that the specific time
and place of the hearing may be set on 10 days’ notice.
(b) The purpose of the designation of issues
is to provide for an effective hearing process. The provider is entitled to be heard on
any matter placed in issue by his or her response to the Notice of Intent to
Exclude, and may designate “all issues” for purposes of hearing. However, a specific designation of
issues is required if the provider wishes to interpose affirmative defenses or
request the certification of questions for an advisory
opinion.
§
30.722 How are subpoenas or
advisory opinions obtained?
(a) In exclusion proceedings involving
medical services provided under Part B of the Act only, the provider may apply
to the administrative law judge for the issuance of subpoenas upon a showing of
good cause therefore.
(b) A certification of a request for an
advisory opinion concerning professional medical standards, medical ethics or
medical regulation to a competent recognized or professional organization or
federal, state or local regulatory agency may be made:
(1) As to an issue properly designated by
the provider, in the sound discretion of the administrative law judge, provided
that the request will not unduly delay the proceedings;
(2) By OWCP on its own motion either before
or after the institution of proceedings, and the results thereof shall be made
available to the provider at the time that proceedings are instituted or, if
after the proceedings are instituted, within a reasonable time after
receipt. The opinion, if rendered
by the organization or agency, is advisory only and not binding on the
administrative law judge.
§
30.723 How will the administrative
law judge conduct the hearing and issue the recommended
decision?
(a) To the extent appropriate, proceedings
before the administrative law judge shall be governed by 29 CFR part
18.
(b) The administrative law judge shall
receive such relevant evidence as may be adduced at the hearing. Evidence shall be presented under oath,
orally or in the form of written statements. The administrative law judge shall
consider the Notice and Response, including all pertinent documents accompanying
them, and may also consider any evidence which refers to the provider or to any
claim with respect to which the provider has provided medical services, hospital
services, or medical services and supplies, and such other evidence as the
administrative law judge may determine to be necessary or useful in evaluating
the matter.
(c) All hearings shall be recorded and the
original of the complete transcript shall become a permanent part of the
official record of the proceedings.
(d) In conjunction with the hearing, the
administrative law judge may:
(1) Administer oaths;
and
(2) Examine witnesses.
(e) At the conclusion of the hearing, the
administrative law judge shall issue a written decision and cause it to be
served on all parties to the proceeding, their representatives and
OWCP.
§
30.724 How can a party request
review by OWCP of the administrative law judge’s recommended
decision?
(a) Any party adversely affected or
aggrieved by the decision of the administrative law judge may file a petition
for discretionary review with the Director for Energy Employees Occupational
Illness Compensation within 30 days after issuance of such decision. The
administrative
law judge’s decision, however, shall be effective on the date issued and shall
not be stayed except upon order of the Director.
(b) Review by the Director for Energy
Employees Occupational Illness Compensation shall not be a matter of right but
of the sound discretion of the Director.
(c) Petitions for discretionary review shall
be filed only upon one or more of the following grounds:
(1) A finding or conclusion of material fact
is not supported by substantial evidence;
(2) A necessary legal conclusion is
erroneous;
(3) The decision is contrary to law or to
the duly promulgated rules or decisions of OWCP;
(4) A substantial question of law, policy,
or discretion is involved; or
(5) A prejudicial error of procedure was
committed.
(d) Each issue shall be separately numbered
and plainly and concisely stated, and shall be supported by detailed citations
to the record when assignments of error are based on the record, and by
statutes, regulations or principal authorities relied upon. Except for good cause shown, no
assignment of error by any party shall rely on any question of fact or law upon
which the administrative law judge had not been afforded an opportunity to
pass.
(e) A statement in opposition to the
petition for discretionary review may be filed, but such filing shall in no way
delay action on the petition.
(f) If a petition is granted, review shall
be limited to the questions raised by the petition.
(g) A petition not granted within 20 days
after receipt of the petition is deemed denied.
§
30.725 What are the effects of
non-automatic exclusion?
(a) OWCP shall give notice of the exclusion
of a physician, hospital or provider of medical services or supplies
to:
(1) All OWCP district
offices;
(2) CMS; and
(3) All employees who are known to have had
treatment, services or supplies from the excluded provider within the six-month
period immediately preceding the order of exclusion.
(b) Notwithstanding any exclusion of a
physician, hospital, or provider of medical services or supplies under this
subpart, OWCP shall not refuse an employee reimbursement for any otherwise
reimbursable medical treatment, service or supply if:
(1) Such treatment, service or supply was
rendered in an emergency by an excluded physician; or
(2) The employee could not reasonably have
been expected to know of such exclusion.
(c) An employee who is notified that his or
her attending physician has been excluded shall have a new right to select a
qualified physician.
§
30.726 How can an excluded provider
be reinstated?
(a) If a physician, hospital, or provider of
medical services or supplies has been automatically excluded pursuant to §
30.716, the provider excluded will automatically be reinstated upon notice to
OWCP that the conviction or exclusion which formed the basis of the automatic
exclusion has been reversed or withdrawn.
However, an automatic reinstatement shall not preclude OWCP from
instituting exclusion proceedings based upon the underlying facts of the
matter.
(b) A physician, hospital, or provider of
medical services or supplies excluded from participation as a result of an order
issued pursuant to this subpart may apply for reinstatement one year after the
entry of the order of exclusion, unless the order expressly provides for a
shorter period. An application for
reinstatement shall be addressed to the Director for Energy Employees
Occupational Illness Compensation, and shall contain a concise statement of the
basis for the application. The
application should be accompanied by supporting documents and
affidavits.
(c) A request for reinstatement may be
accompanied by a request for oral argument. Oral argument will be allowed only in
unusual circumstances where it will materially aid the decision
process.
(d) The Director for Energy Employees
Occupational Illness Compensation shall order reinstatement only in instances
where such reinstatement is clearly consistent with the goal of this subpart to
protect the EEOICPA program against fraud and abuse. To satisfy this requirement the provider
must provide reasonable assurances that the basis for the exclusion will not be
repeated.
Subpart
I—Wage-Loss Determinations Under Part E of EEOICPA
General
Provisions
§
30.800 What types of wage-loss are
compensable under Part E of EEOICPA?
Years of wage-loss occurring
prior to normal retirement age that are the result of a covered illness
contracted by a covered Part E employee through work-related exposure to a toxic
substance at a Department of Energy facility or a RECA section 5 facility, as
appropriate, may be compensable under Part E of the Act. Whether years of wage-loss are
compensable depends on determinations with respect to:
(a) The average annual wage of the employee
as determined by OWCP in accordance with § 30.810;
(b) The percentage of his or her average
annual wage that the employee was able to earn during the calendar year(s) in
question as determined by OWCP in accordance with § 30.811;
and
(c) Whether the employee’s inability to earn
at least as much as his or her average annual wage was due to a covered illness
as defined in § 30.5(r).
§
30.801 What special definitions
does OWCP use in connection with Part E wage-loss
determinations?
For the purposes of paying
compensation based on wage-loss under Part E of the Act, OWCP will apply the
following definitions:
(a) Average annual wage means four times the
average quarterly wages of a covered Part E employee for the 12 quarters preceding the quarter during which he or she first
experienced wage-loss due to exposure to a toxic substance at a DOE facility or
RECA section 5 facility, excluding any quarters during which the employee was
unemployed. Because being “retired”
is not equivalent to being “unemployed,” quarters during which an employee had
no wages because he or she was retired will not be excluded from this
calculation.
(b) Normal retirement age means the age at
which a covered Part E employee first became eligible for unreduced retirement
benefits under the Old-Age, Survivors and Disability Insurance (OASDI)
provisions of the Social Security Act.
In general, persons born during or before 1937 are eligible for unreduced
OASDI retirement benefits at age 65, and that age increases in monthly
increments until it reaches 67, which is the age at which persons born during or
after 1960 become eligible for unreduced OASDI retirement
benefits.
(c) Quarter means
the three-month period January through March, April through June, July through
September, or October through December.
(d) Quarter during which the employee was
unemployed means any quarter during which the covered Part E employee had
$700 (in constant 2005 dollars) or less in wages unless the quarter is one
during which the employee was retired.
(e) Year of wage-loss means a calendar year
during which the covered Part E employee’s earnings were less than his or her
average annual wage, after such earnings have been adjusted using the Consumer
Price Index for All Urban Consumers (CPI-U), as produced by the Bureau of Labor
Statistics, to reflect their value in the year during which the employee first
experienced wage-loss due to exposure to a toxic substance at a DOE facility or
RECA section 5 facility.
Evidence
of Wage-Loss
§
30.805 What evidence does OWCP use
to determine a covered Part E employee’s average annual wage and whether he or
she experienced compensable wage-loss under Part E of
EEOICPA?
(a) OWCP may rely on quarterly wages
information reported to the Social Security Administration to establish a
covered Part E employee’s presumed average annual wage (see § 30.810) and the
duration and extent of any years of wage-loss that are compensable under Part E
of the Act (see § 30.811). OWCP may
also rely on other probative evidence of a covered Part E employee’s wages, and
may ask the claimant for additional evidence necessary to make this
determination, if necessary. For
the purposes of making these two types of determinations, OWCP will consider all
monetary payments that the covered Part E employee received in a quarter from
employment or services, except for monetary payments that were not taxable as
income during that quarter under the Internal Revenue Code, to be “wages.”
(b) OWCP also requires the submission of
rationalized medical evidence of sufficient probative value to establish that
the period of wage-loss at issue is causally related to the covered Part E
employee’s covered illness.
§ 30.806 May
a claimant submit factual evidence in support of a different determination of
average annual wage and/or wage-loss than that found by OWCP?
A claimant who disagrees
with the evidence OWCP has obtained under § 30.805(a) and alleges a different
average annual wage for the covered Part E employee, or that there was a greater
duration or extent of wage-loss, may submit records that were produced in the
ordinary course of business due to the employee’s employment to rebut that
evidence, to the extent that such records are determined to be authentic by OWCP
by a preponderance of the evidence.
The average annual wage and/or wage-loss of the covered Part E employee
will then be determined by OWCP in the exercise of its
discretion.
Determinations
of Average Annual Wage and Percentages of Loss
§
30.810 How will OWCP calculate the
average annual wage of a covered Part E employee?
To calculate the average
annual wage of a covered Part E employee as defined in § 30.801(a), OWCP
will:
(a) Aggregate the wages for the twelve
quarters that preceded the quarter during which the covered Part E employee
first experienced wage-loss due to exposure to a toxic substance at a DOE
facility or a RECA section 5 facility, excluding any quarter during which the
employee was unemployed;
(b) Add any additional wages earned by the
employee during those same quarters as evidenced by records described in §§
30.805(a) and 30.806;
(c) Divide the sum of paragraphs (a) and (b)
of this section by 12 less the number of quarters during which the employee was
unemployed; and
(d) Multiply this figure by four to
calculate the covered Part E employee’s average annual
wage.
§
30.811 How will OWCP calculate the
duration and extent of a covered Part E employee’s initial period of compensable
wage-loss?
(a) To determine the initial calendar years
of wage-loss, OWCP will use the evidence it receives under §§ 30.805 and 30.806
to determine the quarter in which a covered Part E employee first sustained
wage-loss due to exposure to a toxic substance while engaged in employment at a
DOE facility or a RECA section 5 facility, as appropriate.
(b) OWCP will then compare the calendar-year
wages for that employee, as adjusted, with the average annual wage determined
under § 30.810 for each calendar year beginning with the calendar year that
includes the quarter in which the wage-loss commenced, and concluding with the
last calendar year of wage-loss prior to the submission of the claim or the
calendar year in which the employee reached normal retirement age (as defined in
§ 30.801(b), whichever occurred first.
(c) OWCP will then aggregate separately the
number of calendar years of wage-loss in which the employee’s wages, as
adjusted, did not exceed 50 percent of the average annual wage determined under
§ 30.810, and the number of calendar years of wage-loss in which the employee’s
wages, as adjusted, exceeded 50 percent of such average annual wage, but did not
exceed 75 percent of such average annual wage.
(d) For each calendar year of wage-loss
determined under paragraph (c) of this section during which the employee’s wages
did not exceed 50 percent of his or her average annual wage, OWCP will pay the
employee $15,000 as compensation for wage-loss. For each calendar year of wage-loss
determined under paragraph (c) of this section during which the employee’s
calendar-year wages exceeded 50 percent of his or her average annual wage but
did not exceed 75 percent of such average annual wage, OWCP will pay the
employee $10,000 as compensation for wage-loss.
§
30.812 May a covered Part E
employee claim for subsequent periods of compensable
wage-loss?
A covered Part E employee
previously awarded compensation for wage-loss under § 30.811 may file for
additional compensation for wage-loss suffered by the employee during periods
subsequent to a period for which a wage-loss claim for the employee has already
been adjudicated by OWCP. However,
no compensation for wage-loss shall be awarded for any period following the year
during which the covered Part E employee attained normal retirement age for
purposes of the Social Security Act as described in §
30.801(b).
Special
Rules for Certain Survivor Claims Under Part E of
EEOICPA
§
30.815 Are there special rules that
OWCP will use to determine the extent of a deceased covered Part E employee’s
compensable wage-loss?
(a) For purposes of adjudicating a claim of
a survivor of a deceased covered Part E employee only, OWCP will presume that
such employee experienced wage-loss for each calendar year subsequent to the
calendar year of his or her death through and including the calendar year in
which the employee would have reached normal retirement age under the Social
Security Act. During these
particular calendar years, OWCP will also presume that the deceased covered Part
E employee’s subsequent calendar-year wages did not exceed 50 percent of his or
her average annual wage as determined under § 30.810.
(b) Except as provided in paragraph (a) of
this section, OWCP will calculate the wage-loss of a deceased covered Part E
employee in conformance with the provisions of §§ 30.800 through
30.811.
(c) If OWCP determines that a deceased
covered Part E employee had an aggregate of not less than ten calendar years of
adjusted earnings that did not exceed 50 percent of his or her average annual
earnings, it will pay the eligible surviving beneficiary(s) additional
compensation (the basic survivor award payable under section 7385s-3(a)(1) is
$125,000) in the amount of $25,000 pursuant to section 7385s-3(a)(2) of the
Act. In the alternative, if OWCP
determines that the aggregate number of such years is not less than 20 years, it
will pay the eligible surviving beneficiary(s) additional compensation in the
amount of $50,000 pursuant to section 7385s-3(a)(3).
Subpart
J—Impairment Benefits Under Part E of EEOICPA
General
Provisions
§
30.900 Who can receive impairment
benefits under Part E?
In order to receive
impairment benefits under Part E, the employee must show
that:
(a) He or she is a covered Part E employee
who has been determined to have contracted a covered illness through exposure to
a toxic substance at a DOE facility or a RECA section 5 facility, as
appropriate, pursuant to either §§ 30.210 through 30.215 or §§ 30.230 through
30.232 of these regulations; and
(b) He or she has been determined to have an
impairment, pursuant to the regulations set out in this subpart, that is the
result of the covered illness referred to in paragraph (a) of this
section.
§ 30.901 How does OWCP determine the extent of an
employee’s impairment that is due to a covered illness contracted through
exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as
appropriate?
(a) OWCP will determine the amount of
impairment benefits to which an employee is entitled based on one or more
impairment evaluations submitted by physicians. An impairment evaluation shall contain
the physician’s opinion on the extent of whole person impairment of all organs
and body functions of the employee that are compromised or otherwise affected by
the employee’s covered illness or illnesses, which shall be referred to as a
“minimum impairment rating.”
(b) The minimum impairment rating shall be
determined in accordance with the current edition of the American Medical
Association’s Guides to the Evaluation of
Permanent Impairment (AMA’s Guides). In making impairment benefit
determinations, OWCP will only consider medical reports from physicians who are
certified by the relevant medical board and who satisfy any additional criteria
determined by OWCP to be necessary to qualify to perform impairment evaluations
under Part E, including any specific training in use of the AMA’s Guides, specific training and experience
related to particular conditions and other objective
factors.
(c) OWCP will establish criteria based upon
objective factors such as training and certification that must be met by
physicians preparing impairment evaluations in order for an impairment
evaluation to be considered in determining an impairment award. Such criteria shall be made available to
claimants and the public by OWCP.
§
30.902 How will OWCP calculate the
amount of the award of impairment benefits that is payable under Part
E?
OWCP will multiply the
percentage points of the minimum impairment rating by $2,500 to calculate the
amount of the award.
Medical
Evidence of Impairment
§
30.905 How may an impairment
evaluation be obtained?
(a) Except as provided in paragraph (b) of
this section, OWCP may request that an employee undergo an evaluation of his or
her permanent impairment that specifies the percentage points that are the
result of the employee’s covered illness or illnesses. To be of any probative value, such
evaluation must be performed by a physician who meets the criteria OWCP has
identified for physicians performing impairment evaluations for the pertinent
covered illness or illnesses in accordance with the AMA’s Guides.
(b) In lieu of submitting an evaluation
requested by OWCP under paragraph (a) of this section, an employee may obtain an
impairment evaluation at his own initiative and submit it to OWCP for
consideration. Such an evaluation
will be deemed to have sufficient probative value to be considered in the
adjudication of impairment benefits by OWCP only if:
(1) The evaluation was performed by a
physician who meets the criteria identified by OWCP for the covered illness or
illnesses in question;
(2) The evaluation was performed no more
than one year before the date that it was received by OWCP;
and
(3) The evaluation conforms to all
applicable requirements set out in this part.
§
30.906 Who will pay for an
impairment evaluation?
(a) OWCP will pay for one impairment
evaluation obtained by an employee if it meets the criteria set out in §
30.905(b), unless it was performed by a physician prior to the date that the
claim for Part E benefits is filed, or obtained for a claim in which OWCP finds
that the employee did not contract a covered illness. At its discretion, OWCP may direct that
the employee undergo additional evaluations. OWCP will pay for any such additional
evaluations and will reimburse the employee for any reasonable and necessary
costs incident to the evaluations, as described in §§ 30.404 and 30.412 of this
part.
(b) Except for one impairment evaluation
obtained pursuant to § 30.905(b) and meeting the criteria set out in §
30.905(b)(1), (2) and (3), the employee must pay for any impairment evaluations
not directed by OWCP.
§
30.907 Can an impairment evaluation
obtained by OWCP be challenged prior to issuance of the recommended
decision?
(a) An employee may submit arguments
challenging an impairment evaluation, and/or additional medical evidence of
impairment, before the district office issues a recommended decision on his or
her claim. However, the district
office will not consider an additional impairment evaluation, even if it differs
from the impairment evaluation obtained under §§ 30.905 or 30.906, if it does not meet the
criteria listed in § 30.905(b)(1), (2) and (3).
(b) If the district office obtains an
additional impairment evaluation that differs from the impairment evaluation
obtained under §§ 30.905 or 30.906, the district office will base its
recommended determinations regarding impairment upon the evidence it considers
to have the greatest probative value, after evaluating all relevant evidence of
impairment in the record, including evidence from directed impairment
evaluations and referee impairment evaluations, if any, that it deems necessary
pursuant to §§ 30.410 and 30.411 of this part.
§
30.908 How will the FAB evaluate new medical
evidence submitted to challenge the impairment determination in the recommended
decision?
(a) If an employee submits an additional
impairment evaluation that differs from the impairment evaluation relied upon by
the district office, the FAB will not consider the additional impairment
evaluation if it does not meet the criteria listed in § 30.905(b)(1), (2) and
(3).
(b) The employee shall bear the burden of
proving that the additional impairment evaluation submitted is more probative
than the evaluation relied upon by the district office to determine the
employee’s recommended minimum impairment rating.
(c) If an employee submits an additional
impairment evaluation that differs from the impairment evaluation relied upon by
the district office, the FAB will review all relevant evidence of impairment in
the record, and will base its determinations regarding impairment upon the
evidence it considers to be most probative. The FAB will determine the minimum
impairment rating after it has evaluated all relevant evidence and argument in
the record.
Ratable
Impairments
§
30.910 Will an impairment that
cannot be assigned a numerical percentage using the AMA’s Guides be included in
the impairment rating?
(a) An impairment of an organ or body
function that cannot be assigned a numerical impairment percentage using the
AMA’s Guides will not be included in
the employee’s impairment rating.
(b) A mental impairment that does not
originate from a documented physical dysfunction of the nervous system, and
cannot be assigned a numerical percentage using the AMA’s Guides, will not be included in the
impairment rating for the employee.
Mental impairments that are due to documented physical dysfunctions of
the nervous system can be assigned numerical percentages using the AMA’s Guides and will be included in the
rating.
§
30.911 Does maximum medical
improvement always have to be reached for an impairment to be included in the
impairment rating?
(a) An impairment that is the result of a
covered illness will be included in the employee’s impairment rating determined
by OWCP under § 30.901 only if OWCP concludes that the impairment has reached
maximum medical improvement, which means that it is well-stabilized and unlikely
to improve substantially with or without medical
treatment.
(b) Notwithstanding paragraph (a) of this
section, if OWCP finds that an employee’s covered illness is in the terminal
stages, based upon probative medical evidence, an impairment that results from
such covered illness will be included in the impairment rating for the employee
even if it has not reached maximum medical improvement.
§
30.912 Can a covered Part E
employee receive benefits for additional impairment following an award of such benefits by
OWCP?
A covered Part E employee
previously awarded impairment benefits by OWCP may file a claim for additional
impairment benefits. Such claim
must be based on an increase in the impairment rating that is the result of the
covered illness or illnesses from the impairment rating that formed the basis
for the last award of such benefits by OWCP. OWCP will only adjudicate claims for
such an increased rating that are filed at least two years from the date of the
last award of impairment benefits.
However, OWCP will not wait two years before it will adjudicate a claim
for additional impairment that is based on an allegation that the employee
sustained a new covered illness.
Signed
at
Victoria
A. Lipnic,
Assistant
Secretary of Labor for Employment
Standards.
Signed
at
Shelby
Hallmark,
Director,
Office of Workers’ Compensation Programs, Employment Standards
Administration.