Claims for Compensation Under the Federal Employees' Compensation Act;
Compensation for Disability and Death of Noncitizen Federal Employees
Outside the United States; Final Rule [11/25/1998]
(See the CORRECTION,
to the Final Rule issued
12/23/99.)
(See the CORRECTION,
to the Final Rule issued
03/12/99.)
Volume 63, Number 227, Page 65283-65345[[Page 65283]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of Workers' Compensation Programs
_______________________________________________________________________
20 CFR Parts 10 and 25
Claims for Compensation Under the Federal Employees' Compensation Act;
Compensation for Disability and Death of Noncitizen Federal Employees
Outside the United States; Final Rule
[[Page 65284]]
DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 10 and 25
RIN 1215-AB07
Claims for Compensation Under the Federal Employees' Compensation
Act; Compensation for Disability and Death of Noncitizen Federal
Employees Outside the United States
AGENCY: Office of Workers' Compensation Programs, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On December 23, 1997, the Department of Labor proposed
revisions to the regulations governing the administration of the
Federal Employees' Compensation Act (FECA) (62 FR 67120). The FECA
provides benefits to all civilian Federal employees and certain other
groups of employees and individuals who are injured or killed while
performing their jobs.
The proposed changes were summarized in that publication. They
contain a major revision of the medical fee schedule to include
pharmacy and inpatient hospital bills. Other significant new provisions
address suspension of benefits during incarceration and termination of
benefits for conviction of fraud against the program; changes to the
continuation of pay (COP) provisions; paying for an attendant as a
medical expense; inclusion of OWCP nurse services in the definition of
vocational rehabilitation services; clarifying the reconsideration
process; restricting entitlement to postpone oral hearings;
clarification of subpoena authority; streamlining the standards for
review of representatives' fees; provision of more detailed guidance
for claims involving the liability of a third party; and clarification
of procedures for claims filed by non-Federal law enforcement officers.
Finally, in light of comments received, the proposal to remove all
references to leave repurchase has been abandoned in favor of including
a brief mention of this practice.
EFFECTIVE DATE: January 4, 1999.
FOR FURTHER INFORMATION CONTACT: Thomas M. Markey, Director for Federal
Employees' Compensation, Employment Standards Administration, U.S.
Department of Labor, Room S-3229, 200 Constitution Avenue N.W.,
Washington, DC 20210; Telephone (202) 693-0040.
SUPPLEMENTARY INFORMATION: Proposed regulations were published in the
Federal Register on December 23, 1997 (62 FR 67120). They allowed a 60-
day period for comment, during which the Department of Labor received
timely comments from 24 parties. Thirteen were submitted by Federal
employing agencies, seven by labor organizations which represent
Federal employees, two by attorneys, one by a physician, and one by a
Department of Labor employee. Four untimely comments from Federal
employing agencies were also received; many of the points they made
were also made by other commenters.
The comments centered on time frames for use of continuation of pay
(COP), time frames for submittal of forms by agencies, and postponement
of hearing requests. None of the comments represented a profound
challenge to the proposed rules.
This final rule applies to cases where the injury or death occurred
before the effective date, but only when an initial decision on a
particular issue is made on or after the effective date. This final
rule does not apply, however, to issues decided for the first time in
one of these cases before the effective date, even when such decision
is being reviewed after a hearing before an OWCP representative, on
reconsideration before OWCP, or on appeal to the Employees'
Compensation Appeals Board (ECAB).
Several changes were made which did not result from the comments.
One is the addition of nine new OMB clearance numbers to Sec. 10.3
since publication of the Notice of Proposed Rulemaking. Another is that
Sec. 10.500 has been subdivided for clarity into four different
subsections, and the contents have been rearranged slightly. Also, the
title of subpart F has been changed to ``Continuing Benefits'', and the
title of subpart G has been changed to ``Appeals Process'' for clarity.
Several of the questions have been modified slightly for clarity, or so
that they will be understandable on their own, without reference to the
section where they appear.
Finally, after reviewing the decision of the United States District
Court for the District of Massachusetts in Jones-Booker v. United
States (C.A. No. 97cv10616-PBS, May 20, 1998), a provision is being
added as new Sec. 10.607(c). This provision will toll the running of
the one-year time limitation for requesting reconsideration during any
period for which the claimant can establish through the submission of
probative medical evidence that he or she was unable to communicate in
any way, and that his or her testimony was necessary to obtain
modification of the prior decision. Any such period is not counted as
part of the year in which a claimant has to timely request
reconsideration. To establish eligibility for such tolling, the
claimant will have the burden of proving both that he or she was unable
to communicate in any way and that his or her testimony was necessary
to establish factual matters that could not be established in any other
way.
Overall, the parties who commented on the organization of the
proposed regulations, the new question-and-answer format, and the
``plain English'' approach approved of these changes. However, one
agency stated that the question-and-answer format might well be
problematical, and that subject headings would be easier to follow.
The Department's analysis of the comments received is set forth
below. Unless otherwise stated, section numbers refer to the revised
regulations. No comments were received with respect to part 25.
Section 10.0
One labor organization asked that OWCP clarify the introduction to
the regulations at Sec. 10.0 by adding ``including an officer or
employee of an instrumentality wholly owned by the United States'' to
the first sentence. However, this same phrase already appears in the
definition of ``Employee'' at Sec. 10.5(h)(1), and it is not felt that
repeating it in Sec. 10.0 would provide any further clarification.
Therefore, this change is not being made.
Section 10.5(a)
Two labor organizations noted OWCP's efforts to streamline its
regulations and suggested dropping the term ``Compensation'' from the
first line of Sec. 10.5(a) since ``Compensation'' is defined at section
8101(12) of the FECA. While it is true that the FECA contains a general
definition of ``Compensation,'' Sec. 10.5(a) provides a more precise
definition of this term (which is used interchangeably with
``Benefits'' throughout these regulations) that takes into account the
construction given to this particular section since the FECA was first
amended to include it in 1924. Therefore, dropping the term
``Compensation'' from Sec. 10.5(a) would not be consistent with OWCP's
streamlining effort, and the suggestion is not adopted.
Two labor organizations also argued that Sec. 10.5(a) should not
include ``medical treatment'' paid for out of the Employees''
Compensation Fund since beneficiaries are entitled to medical treatment
for employment-related injuries and illnesses regardless of whether or
not they sustain any
[[Page 65285]]
disability. However, this argument ignores the fact that, as one of the
``benefits paid for from the Employees'' Compensation Fund,'' medical
treatment clearly falls within the statutory definition of
``Compensation'' set out at section 8101(12). Also, the regulatory
definition of ``Benefits or Compensation'' in use since 1987 (20 CFR
10.5(a)(6)) includes ``medical treatment'' and, as there was no intent
to change this aspect of the definition in these regulations, the
suggestion is not accepted.
Section 10.5(f)
One commenter disagreed with the dual economic and medical nature
of the definition of ``Disability'' in Sec. 10.5(f) and argued that the
definition of this word should focus solely on clinical findings.
However, such a change would be contrary to settled precedent of the
ECAB that has emphasized both the economic and medical aspects of
disability for work under the FECA. Also, the regulatory definition of
``Disability'' in use since 1987 (20 CFR 10.5(a)(17)) was essentially
identical to Sec. 10.5(f), and as there was no intent to change this
definition in these regulations, the suggestion is not adopted.
Section 10.5(g)
While one labor organization commended OWCP for providing further
helpful explanation of the term ``Earnings from employment or self-
employment'' in the definition at Sec. 10.5(g), another labor
organization asserted that ``reimbursed expenses'' are ``commonly not
considered to be income'' and asked that they be deleted from the list
of examples contained in Sec. 10.5(g)(1) because they are not paid for
``services'' as that word is used in section 8114(e) of the FECA. There
is nothing in the language referenced in section 8114(e) that would
necessarily take precedence over the general requirement in section
8106(b) of the FECA that an employee must include any ``other
advantages which are part of his earnings in employment or self-
employment and which can be estimated in money'' in his reports to
OWCP. The regulatory definition of ``Earnings from employment or self-
employment'' in use since 1987 (20 CFR 10.125(c)) has included
``reimbursed expenses'', and as there was no intent to change this
definition in these regulations, the request to delete this specific
example from the list in Sec. 10.5(g)(1) is not adopted.
Section 10.5(q)
One labor organization requested that the word ``by'' in the
definition of ``Occupational disease or illness'' at Sec. 10.5(q) be
changed to ``in'' as it appeared in the prior regulatory definition in
use since 1987. However, using the word ``in'' would not adequately
convey the requirement in section 8101(5) of the FECA that occupational
diseases or illnesses be ``proximately caused by the employment''
(emphasis added) rather than merely occurring during or ``in'' a period
of employment in order to be compensable. Therefore, while there was no
intent in these regulations to change the prior definition of
``Occupational disease or illness'' in any significant way, the
requested change would not clarify Sec. 10.5(q) in a manner consistent
with the FECA, and it is therefore not adopted.
Section 10.5(x)
One Federal agency and two labor organizations expressed concern
about the intended effect of the word ``material'' in the definition of
``Recurrence of disability'' and requested further clarification from
OWCP. After considering the practical impact of the word ``material''
on the definition of this term, it does not appear that this particular
word adds any further precision to Sec. 10.5(x), and therefore it is
deleted.
One labor organization suggested that confusion might result from
the use of the term ``intervening injury'' in Sec. 10.5(x) given the
precise meaning of this term in the adjudication of claims for
consequential injuries. However, since the context of Sec. 10.5(x)
makes it clear that the term ``intervening injury'' merely refers to a
type of work stoppage that is not due to a ``spontaneous change in a
medical condition,'' and there was no intent to limit this term to the
meaning it has with respect to consequential injuries, modification of
this particular term is not warranted.
The same labor organization also suggested that the reductions-in-
force referred to Sec. 10.5(x) as not resulting in recurrences of
disability be limited to ``officially mandated'' actions. As the agency
responsible for adjudicating FECA claims for the entire Federal
workforce, OWCP must be able to rely upon employers (and claimants) to
advise it of any relevant and pertinent personnel actions that might
have some bearing on the outcome of a FECA claim. OWCP has neither the
resources nor the expertise to ascertain whether reductions-in-force
are ``officially mandated'' (presumably, this phrase is equivalent to
``duly authorized''), and must leave disputes about individual
reductions-in-force to be resolved in the proper forum. Moreover, the
words ``general'' or ``officially mandated'' add nothing to the sense
of this section or its legal force. Under these circumstances, the
requested modification of ``reductions-in-force'' would not be workable
and is therefore not adopted.
Finally, two Federal agencies suggested that language be added to
Sec. 10.5(x) to highlight that a ``Recurrence of disability'' does not
occur after an employee recuperates from surgery for an employment-
related condition or injury if he or she has no entitlement to monetary
benefits for refusing an offer of suitable work. Another commenter
disagreed with the concept of recurrences altogether. This group of
comments about the effect of changes in an employee's accepted medical
condition indicates that it would be helpful to add another definition
to answer the concerns raised. Therefore, Sec. 10.5 is revised to add a
new Sec. 10.5(y), ``Recurrence of medical condition'', and subsequent
paragraphs are renumbered accordingly.
Section 10.5(dd)
One labor organization suggested that a portion of the definition
of ``Temporary aggravation'' in Sec. 10.5(cc) (renumbered Sec. 10.5(dd)
in accordance with the revision noted above) be changed from ``caused
that condition'' to ``caused that preexisting condition.'' This same
organization also suggested that the second part of this section be
changed from ``no greater impairment than existed prior to the
employment injury'' to ``no greater impairment or disability than
existed prior to the aggravation.'' The first wording change is
redundant, given the context, and the second wording change would
modify the sense of the definition in use since 1987 (20 CFR
10.5(a)(18)), which the program had no intent to change. For these
reasons, the suggested changes are not adopted.
Section 10.5(ee)
One Federal agency assumed that the proposed definition of
``Traumatic injury'' in Sec. 10.5(dd) (renumbered Sec. 10.5(ee) in
accordance with the revision noted above) differed from the prior
regulatory definition of this term in that it now included the phrase
``external force,'' and requested further clarification regarding the
meaning of this phrase. However, the definition of ``Traumatic injury''
has included the phrase ``external force'' since 1975 and no further
definition of this phrase is required since it does not represent an
[[Page 65286]]
attempt to change the existing definition.
Section 10.6
One Federal agency felt that the statement that ``certain other
benefits are payable'' in Sec. 10.6(b) was not consistent with the
language of section 8148(b)(3) of the FECA, which provides OWCP with
discretionary authority in this area, and should be changed to
``certain other benefits may be payable * * *.'' We agree that the
statute does give OWCP discretion in this matter, and Sec. 10.6(b) is
therefore revised consistent with the suggestion.
The same agency also felt that Sec. 10.6(c) should refer only to
persons who live in the beneficiary's household ``and are'' dependent
on the beneficiary for support. Adoption of this idea would eliminate
compensation payable for dependents living in another household through
no fault of their own, e.g., minor children whose non-custodial parent
is a beneficiary. In any event, this interpretation of the term
``dependent'' does not conform to the statutory test for dependency
contained in section 8110(a) of the FECA, and the suggested revision is
not adopted.
Finally, this agency suggested addition of a means test for
dependents to this section and to Sec. 10.405. The FECA contains no
basis for such a measure.
Section 10.7
Three agencies commented on the use of Form CA-3, two stating that
they would like to see continued use of the form, and one stating that
there should be some way to report return to duty in its place. If the
form is not to be required, one agency said that it should be removed
from the list. On balance, OWCP does not believe that use of the form
should be required, since agencies routinely notify the district
offices when employees return to work. Form CA-3 is therefore being
removed from the list. However, OWCP is looking into alternative means
of collecting the information requested on this form.
One agency inquired about the purpose of Form CA-12, and another
suggested that it simply be deleted from the list. A labor organization
suggested that its purpose be clarified. OWCP uses this form to obtain
reports of dependents in death cases. As the form is used exclusively
by OWCP, and employers have no need to stock it, it is being removed
from the list.
Two employee organizations suggested that this section include a
statement that employers may not modify forms prescribed by OWCP, or
use substitute forms. A statement to that effect is being added to
paragraph (a).
Forms CA-7a and CA-7b have been added to the list (see the comments
concerning leave buy-back at the end of this analysis).
Sections 10.10, 10.11, and 10.12
Two agencies commented on the statement that all records related to
claims filed under the FECA are covered by the Government-wide system
of records established by the Department of Labor. More specifically,
they stated that an employer generates and maintains a variety of
records systems in connection with claims filed under the FECA. The
agencies suggested that Sec. 10.10 be revised to provide that DOL/GOVT-
1 covers only those records whose primary purpose is to generate,
record or report data required by OWCP in its adjudication of claims.
All other records an agency may generate as a result of a claim, such
as those needed for personnel actions, payroll actions, safety records
and investigative reports, should be subject only to the agency's
Privacy Act regulations.
Similar comments were submitted to OWCP in connection with its
proposal to amend former Sec. 10.12 of the FECA regulations. In the
final rule promulgated in the Federal Register on October 22, 1998,
OWCP concluded that all records collected because a claim was filed
seeking benefits under the FECA, including copies of records maintained
by the employing agency, were official records of OWCP and, with one
limited exception, covered by DOL/GOVT-1.
OWCP recognized, however, that a record may be created to satisfy
two or more purposes, and therefore may be covered by other systems of
records even though the subject matter of the document relates to an
on-the-job injury sustained by a Federal employee. Thus, for example,
records collected by an agency as part of a safety, personnel, or
criminal investigation conducted pursuant to statutory or regulatory
authority other than the FECA would not be covered by DOL/GOVT-1,
unless they are submitted by the employee or the agency to OWCP for
consideration in connection with the FEC claim. Readers are directed to
the comments set forth at 63 FR 56752.
As noted above, the Department's proposed amendments to former
Sec. 10.12 have been adopted as a final rule. To ensure consistency,
the provisions of that rule are being included in this publication.
With respect to Sec. 10.12, a commenter alleged that he had
experienced difficulty obtaining copies of case records from OWCP and
recommended that this provision be revised to include a time
limitation. The Department of Labor's regulations at 29 CFR part 71
contain the pertinent time limitations applicable to Privacy Act
requests, and repeating them in these regulations would serve no useful
purpose.
The same commenter also suggested that Sec. 10.12 be revised to
require OWCP to suspend the adjudication process until it complies with
a request for copies under this section, and also to provide claimants
with an opportunity to ``review and respond to the final decision after
being provided with the requested documents.'' However, there is no
reason given to support the recommendation that case adjudication
should be interrupted until OWCP responds to a request under this
provision, and the time periods within which claimants can exercise
their appeal rights are set out in either the FECA itself or the ECAB's
regulations and cannot be altered in these regulations. Accordingly,
this second group of suggested revisions to Sec. 10.12 have also not
been made.
Section 10.16
One Federal agency requested the addition of a sentence at the end
of Sec. 10.16(a) to ``clarify'' that OWCP both cooperates with and
supports the Department of Justice's efforts to enforce the criminal
provisions that apply to claims under the FECA. However, OWCP already
cooperates with and supports these efforts to vigorously enforce the
criminal provisions referred to in Sec. 10.16(a). Therefore, since the
addition of an essentially hortatory sentence will not ``clarify''
OWCP's policy any further, the suggestion is not adopted.
One labor organization suggested deleting the phrase ``for making a
false report'' from the question asked by Sec. 10.16 to clarify that
one of the criminal provisions referenced in this section, 18 U.S.C.
1922, applies to employer actions that wrongfully impede a claim. Since
the question asked by proposed Sec. 10.16 refers only to penalties that
arise from filing a false report, it is revised consistent with the
suggestion.
The same labor organization also suggested that a new subsection
(c) be added to Sec. 10.16 to further clarify that criminal penalties
apply to actions by employers that wrongfully impede a claim. However,
Sec. 10.16(a) already lists 18 U.S.C. 1922 as one of the criminal
provisions that can apply in connection with a claim under the FECA, so
the addition of a new subsection to address this one provision is not
seen as necessary. Instead, this subsection is
[[Page 65287]]
revised to clarify that criminal penalties also apply to actions of
employers that wrongfully impede a claim.
Section 10.17
One Federal agency inquired whether the forfeiture of benefits
provided for in Sec. 10.17 applied to both Federal and State crimes and
requested clarification if that was indeed the case. In light of the
fact that section 8148(a) of the FECA refers to any ``Federal or State
criminal statute,'' Sec. 10.17 is revised consistent with the
suggestion. The same agency also requested that a reporting requirement
be added to this section so beneficiaries would have to inform OWCP of
their convictions, and such a requirement will in fact be added to Form
CA-1032.
Section 10.18
One Federal agency asked whether benefits inadvertently paid to an
incarcerated beneficiary would be considered an overpayment of
compensation, and also asked whether the forfeiture described in
Sec. 10.18(a) would apply to a period of time already served prior to
conviction that is later included in the sentence of a convicted felon.
As for the overpayment inquiry, an incarcerated felon is not entitled
to compensation during the period of his or her incarceration, and
therefore any compensation paid to such an individual would clearly
constitute an overpayment of compensation under section 8129 and would
be recoverable as such.
With respect to the possible retroactive application of any such
forfeiture, section 8148(b)(1) specifies the potential range of these
forfeitures by providing that ``no benefits * * * shall be paid or
provided to any individual during any period'' of incarceration, not
for any period of incarceration. This temporal limitation means that
the forfeiture provided for by section 8148(b)(1) of the FECA will
result only in a cessation of current payments that would otherwise
have been made ``during'' a period of incarceration based on a felony
conviction, and will not also result in a retroactive forfeiture for a
period of time already served prior to conviction if subsequently
included in the sentence.
Four Federal agencies objected to OWCP's blanket decision in
Sec. 10.18(b) to exercise the discretion granted it by section
8148(b)(3) of the FECA in such a way as to require the payment of
benefits to eligible dependents of all incarcerated beneficiaries,
since this is a ``benefit'' that was not available to family members of
uninjured Federal employees incarcerated for felony convictions. One of
these agencies wanted OWCP to restrict payments of this sort to
dependents of felons who are incarcerated for periods of up to six
months only, while two of the four agencies complained that there would
be ``no reduction in compensation benefits'' in certain situations
under Sec. 10.18(b).
OWCP's policy is consistent with both the remedial aspect of the
FECA and Congress's decision in section 8148(b)(3) to provide OWCP with
the discretion necessary to make these types of payments. Also, these
comments include no recognition that OWCP has exercised this discretion
in such a way that these payments to dependents will never exceed 75%
of the incarcerated felon's gross current entitlement (which is less
than their monthly pay), and will therefore always result in a
reduction of compensation benefits. To clarify matters, Sec. 10.18(b)
is revised to point out that dependents under this paragraph will not
be paid the same amount of compensation as other dependents.
One of these four Federal agencies also requested that a reporting
requirement be added to this section so incarcerated felons would have
to inform OWCP when they were incarcerated, and such a requirement will
be added to Form CA-1032.
Section 10.100
With respect to paragraph (b)(1), one agency requested some
examples of verbal notifications of injury, asking specifically what
would happen if an employee claimed to have told a supervisor that an
injury occurred, but the supervisor died before the facts could be
determined. In practice, verbal notification very seldom forms the
basis for a claim. In problematic situations such as the one cited,
OWCP would need to explore the surrounding circumstances and make a
finding consistent with all of the evidence. Since such situations are
so individual in nature, as well as quite rare in occurrence, OWCP does
not believe that a fuller discussion of this matter in the regulations
is warranted.
A commenter objected to the three-year time limit, which is set by
law. A modification to it would require a change to the FECA itself.
Sections 10.101 Through 10.106
An employer stated that proposed Sec. 10.103 is redundant, since it
essentially repeats the contents of proposed Sec. 10.101. This point is
well taken. The positions of proposed Sec. 10.102 and Sec. 10.101 have
been reversed, the title of proposed Sec. 10.101 (now Sec. 10.102) has
been reworded, and proposed Sec. 10.104 through Sec. 10.106 have been
renumbered Sec. 10.103 through Sec. 10.105. (The suggestion from a
labor organization that the heading in Sec. 10.103 be rephrased to
include only compensable injuries therefore becomes moot). The
following comments refer to the provisions as renumbered.
Sections 10.100(b)(3), 10.101(a), and 10.105(a)
Three labor organizations objected to the provision allowing for
withdrawal of claims on the grounds that employers may pressure
employees to drop claims. While the program continues to believe that
there are valid reasons for retaining this provision, the text of
Sec. 10.117(b) has been modified to prohibit employers from compelling
or inducing employees to withdraw claims.
Two agencies suggested that language be added to Sec. 10.100(b)(3)
to indicate that any COP granted to an employee after a claim is
withdrawn must be charged to sick leave, annual leave or leave without
pay as chosen by the employee. This suggestion has been adopted with
respect to annual or sick leave, and the last part of the sentence has
been reworded in accordance with Sec. 10.223, which says that COP paid
in error may be considered an overpayment of pay consistent with 5
U.S.C. 5584.
One agency asked about the implications of withdrawal of cases
which were closed ``short form'', on the basis that OWCP does not
formally ``determine eligibility for benefits'' in these cases. While
no case-specific determination is made in these cases, eligibility has
been established using pre-determined criteria, and the program does
not believe that the proposed language compromises the ability to
withdraw a case which is closed ``short form''. Should this happen, any
monies paid for medical care would be declared an overpayment, which
would be handled according to the usual procedures.
Section 10.101 (b) and (c)
A labor organization stated that, because latent conditions may
result from traumatic injuries, the discussion of timeliness with
respect to latent conditions should not appear solely in the paragraph
dealing with occupational disease. The point is well taken, and the
language of paragraph (c) is being added to Sec. 10.100 as new
paragraph (c). The organization also favors removing the word
``injurious'' from the first sentence of paragraph (b). As the concept
of ``injury'' is integral to workers'
[[Page 65288]]
compensation claims, OWCP believes that the use of this word is
appropriate.
Section 10.102
A labor organization suggested that the heading be rephrased to
include only compensable injuries. When a Form CA-7 is filed, OWCP has
not necessarily determined the compensability of the claim. The
suggested change would therefore be unnecessarily restrictive and
confusing.
Section 10.102(a)
One agency suggested that this section be amended to include a
statement that Form CA-7 is not needed during the initial period of
disability, which is covered by COP. The first sentence is being
modified to clarify this point.
A labor organization states that the requirement to submit Form CA-
7 no more than 14 days after pay stops suggests a legal time limit
which a reader might confuse with the time limits specified by the FECA
for making claim for compensation, which are described in
Sec. 10.100(b). Section 10.101(a) is exclusively concerned with the
mechanics of filing a particular form, and makes no reference to time
limitations under the FECA. OWCP does not believe that readers will be
misled by the wording of this section when it is read in context.
Section 10.102(b)(3)
One agency asked for clarification as to whether the medical
evidence should be submitted to the employer or to OWCP. As OWCP is the
proper recipient, this paragraph has been changed to so state. The
agency also stated that the employee should be required to provide the
medical evidence to the employer. OWCP strenuously disagrees, as it is
the adjudicator of claims for compensation and employers do not have a
global need for medical reports supporting such payments. The agency
may, however, obtain copies of such medical evidence directly from
OWCP. Therefore, this change has not been made.
Section 10.103
One agency proposed that Form CA-7 always be required to file
claims for schedule awards, as they are tracked for timely processing
and letters are not, and a request for a schedule award conveyed in a
letter might be overlooked. While this suggestion has merit, it does
not take into account that schedule awards are initiated by claims
personnel as well as by claimants, or that a schedule award may be
claimed whether or not the employee is receiving compensation for
disability. Given the variety of ways in which a claim for a schedule
award may originate, OWCP does not think it is prudent to restrict the
method of filing the claim to Form CA-7.
One employee organization noted that the phrase ``compensated
according to the schedule'' is redundant. The phrase is being removed
and the word ``such'' is being added before ``impairment'' to ensure
that the meaning of the paragraph is clear.
Section 10.104
A commenter objected to the concept of recurrences. Removal of this
concept would require a change to the FECA itself.
Section 10.104(a)
An agency desired clarification of whether an employee must both
lose time from work and incur a wage loss for the submittal of a Form
CA-2a to be necessary. This in fact is the case, and no change is made
to this paragraph.
Another agency noted that this section addresses only recurrences
of disability, and does not consider recurrences of medical conditions
(although Form CA-2a is designed to claim both). This agency proposed
adding a phrase to the end of the first sentence to address recurrences
of medical conditions, and this change has been made.
Three agencies and a labor organization noted a contradiction
between a statement in this section and a statement in Sec. 10.207(a),
with respect to whether a Form CA-2a, Notice of Recurrence, must be
filed during the COP period. One agency noted that submittal of the
form is a workload item both for the employer and for OWCP, while
another agency noted OWCP's comment in the Preamble to the Proposed
Rule that it is difficult for OWCP to intervene in cases when it does
not know that time loss is occurring. The statement in Sec. 10.207(a)
is correct, and the second sentence of proposed Sec. 10.105(a) (now
Sec. 10.104(a)) has been removed.
A labor organization suggested rewording the sentence addressing
situations where a Form CA-2a need not be filed. From the suggested
text it is clear that three situations (new traumatic injuries, new
occupational diseases, and new events contributing to already-existing
occupational diseases), rather than the two specified in the proposed
rule, need to be addressed in this regard, and the paragraph has been
reworded accordingly.
Section 10.104(b)
An agency asked whether the statement accompanying Form CA-2a is to
be submitted as a separate narrative, since the information listed in
this paragraph is also listed on Form CA-2a. The paragraph is being
reworded so that it refers to the specific requirements stated on Form
CA-2a, just as Sec. 10.104(b)(2) refers to specific requirements stated
on Form CA-2a with reference to the submittal of a medical report.
Section 10.105(a)
A labor organization suggested that this section be reworded to
refer to the claimant as the ``survivor claimant'' throughout. As the
referent changes from ``survivor'' to ``claimant'' in the middle of the
paragraph, different wording would clearly be desirable. Therefore,
``claimant'' has been changed to ``survivor'' both in this paragraph
and in paragraph (c). The point that SSNs are to be provided for all
survivors on whose behalf benefits are being claimed has been
clarified, though this issue was not raised by the labor organization.
Section 10.105(d)
A labor organization suggested that the first sentence of this
paragraph, which parallels the language of section 8122(c), be expanded
to include occupational diseases, and this change has been made.
However, the meaning of the statutory text has not been expanded as
suggested, by changing ``the same injury'' to ``the same compensable
condition''.
The organization also proposed that this section address the
entitlement of a survivor to the remainder of a schedule award after an
employee dies. That is not the subject of this section, however, and
its inclusion here would not be germane.
The organization also asked what provision of the FECA bars a claim
for disability which is not filed while the employee is alive. In Anna
Palestro (Vincent Palestro), 15 ECAB 241 (1964), the Employees'
Compensation Appeals Board established that an individual must be alive
to claim benefits for disability. The only provision for payments to
carry over from a disability claim after death is found in section
8109.
Section 10.110 (a) and (b)
Nine employing agencies, one employee organization, and one other
commenter objected to the reduction of time for submitting Forms CA-1
and CA-2 from 10 to five days. Many reasons were cited for this
objection.
[[Page 65289]]
Practical concerns included observations that decentralized
operations make it difficult to meet current time standards, much less
tightened ones, and that delivery by the Postal Service can take five
days. Also, injuries occurring on a night shift or weekend cannot
always receive administrative attention until the next day, when the
employee and/or witnesses may not be available; a five-day time frame
may result in incomplete and/or inaccurate submittals of information;
the quality of claims review by employers might suffer; and the
proposed standards would be difficult to enforce.
With respect to traumatic injury cases, it was stated that a five-
day period for submittal would be at variance with the 10-day period
allowed employees to produce prima facie evidence of disability. It was
further stated that, given that OWCP closes most traumatic injury cases
``short form'', and OWCP nurses are not assigned unless and until a
Form CA-7 is submitted, the advantage of a five-day period over a 10-
day period was not evident.
With respect to occupational disease cases, it was stated that 15
days should be allowed for submittal of Forms CA-2 for former
employees, on the basis that it takes more than 10 days to compile even
minimal information for these people. This longer time period would be
consistent with the longer time frames OWCP allows for developing and
adjudicating claims for occupational disease.
Concerns about the effect on employer morale included the
observations that while a reduced time period is a worthy goal, less
than half of claims submitted Government-wide meet the 10-day goal now;
that employers trying to improve their performance in this area would
be subject to criticism for inability to comply with this time limit;
and that reducing the time limit would change employers' focus from the
needs of injured employees to the need to meet the regulatory
requirements.
As a related matter, an employer predicted with respect to
Sec. 10.117 that a five-day submittal requirement would result in more
erroneous controversions, or more controversions after the initial
submittal. This employer juxtaposed the five-day period to the 30-day
period allowed for controversion, but this juxtaposition differs little
from that presented by the current requirement to submit notices of
injury within 10 days. Also, there is a difference between
controverting the case, which can be done quickly, and providing
supporting evidence, which may in fact take more time.
Finally, Sec. 10.110(b) indicates that the employing agency will
``transmit'' the completed form to OWCP (as does Sec. 10.113(c)). The
word ``transmit'' is used specifically to allow for electronic
transmission of forms. It was suggested that a five-day time frame
would be more appropriate when electronic transmission is a reality. It
is this argument which seemed most salient, and given the evolutionary
nature of the program's electronic data processing efforts, the
proposal to reduce the number of days allowed for submittal from 10
working days to five calendar days will be set aside until OWCP has the
capacity to receive the notices in electronic format from all agencies.
At that time OWCP will revisit this issue from the regulatory
standpoint. The 10-day submittal period is very much within the norm by
comparison with workers' compensation programs in the States and the
District of Columbia. Nineteen states also set a 10-day submittal
period, while 19 states set a shorter period and 13 states set a longer
one.
A commenter stated that the employer cannot know if ``the need for
more than two appointments'' as stated in Sec. 10.110(b)(3) will
develop, and suggests a more general rewording. The program has
followed this practice for a number of years, and it has proven to be
quite serviceable. Therefore, OWCP does not believe that a change is
warranted.
Two labor organizations suggested that the employer be required to
furnish the employee with a copy of both sides of Form CA-1 or CA-2
when the employer completes its portion of the form. A phrase to this
effect is being added.
Section 10.111
Concerning paragraph (a), a labor organization suggested that
language be added to explicitly require the employer to advise the
employee of his or her rights under the FECA, as the current
regulations provide at Sec. 10.106(a). Employers are required at
various places in these regulations to provide specific information and
forms to injured workers, and inclusion of a general statement is
superfluous.
Concerning paragraph (b), an agency suggested that the time frame
for submitting Form CA-7 to OWCP remain as stated in current
Sec. 10.106(b), which allows for submittal by the tenth calendar day of
wage loss rather than during the COP period. The proposed regulation
represents long-standing policy in accordance with guidance first
issued by FPM Letter 810-6 in May 1985. OWCP does not believe that this
policy needs to be changed.
Concerning paragraph (c), three agencies objected to the five-day
time frame for submitting Form CA-7. However, this time frame is the
same as that found in the current regulations, and the program is
striving to shorten the time frames for submittal of notices of injury
and claims for compensation. Therefore, OWCP believes that it would be
counterproductive to specify a period greater than the five days
currently allowed for submittal of claim forms.
One employee organization suggested that the time frame be
expressed as calendar days, rather than working days, to be consistent
with Sec. 10.110(a). As the latter section will be changed to read ``10
working days'' (see comments above), the wording in Sec. 10.111(c) will
remain ``working days'' as well.
Section 10.112
Two agencies objected to the five-day time frame for submitting
Form CA-8. As noted in the comments about Sec. 10.111(c) above,
however, this time frame is the same as the one found in the current
regulations, and the program is striving to shorten the time frames for
submittal of claims for compensation. Here, too, the program believes
that it would be counterproductive to specify a period greater than the
five days currently allowed for submittal of claim forms.
As with Sec. 10.111(c), one employee organization suggested that
the time frame be expressed as calendar days, rather than working days,
to be consistent with Sec. 10.110(a). As the latter section will be
changed to read ``10 working days'' (see comments above), the wording
in Sec. 10.112(b) will remain ``working days'' as well.
Section 10.115
Current Sec. 10.104 requires the employee to submit medical
evidence in all cases. One agency stated that this requirement is not
clearly enunciated in the proposed regulations, in spite of specific
references in proposed Secs. 10.210, 10.101, and 10.105, and suggested
a change to proposed Sec. 10.115. The program concurs, and a sentence
is being added to clarify this point.
A commenter recommended that Forms CA-1, CA-2, and CA-2c (perhaps
CA-2a was intended) be combined, and that Forms CA-5 and CA-5b be
combined, and that Forms CA-7, CA-8, and CA-12 be combined. Each of
these forms serves a specific purpose and is accompanied by specific
instructions. Any of the combinations suggested would result in much
longer forms which would be more difficult to
[[Page 65290]]
use and understand, both for employees and employers.
A labor organization objected to the removal of the language found
at current Sec. 10.110(a) concerning the employee's burden of proof,
and suggested that it be restored. Most of the material in the current
rule is covered in proposed Sec. 10.115, but the sentences pertaining
to the belief of the claimant and emergence of a condition during a
period of Federal employment with respect to causal relationship have
been added to proposed Sec. 10.115(e), and the latter part of that
paragraph as proposed has been relettered (f). Also, a statement that
the claimant must establish the five basic requirements of the claim to
meet his or her burden of proof has been added to the introductory
paragraph of this section.
Section 10.117
One agency read this section as applying only to occupational
disease claims, as this is the subject of the section immediately
preceding it, and proposed that Sec. 10.117 be retitled to make clear
that it applies to both traumatic injuries and occupational diseases.
OWCP concurs, and this change has been made.
The same agency proposed a new paragraph providing that ``OWCP will
promptly respond'' to an agency's objection to acceptance of a claim,
and also that the agency and the claimant may review each other's
responses to the agency's objections. Section 10.119 already addresses
OWCP's responsibility to advise all of the parties to the claim when a
claim is contested, and the remainder of this suggestion would add
another layer of review by claimants and agencies. For these reasons
OWCP has not adopted this suggestion.
One labor organization suggested that the last sentence of
paragraph (b) be modified to include withdrawal of a claim. OWCP
concurs with this suggestion and believes that it will address the
issues raised with respect to Secs. 10.100(b)(3), 10.101(a), and
10.105(a) (see the comments above with respect to these sections).
Section 10.118
One employee organization suggested that the language which appears
in current Sec. 10.140 with respect to the non-adversarial nature of
proceedings under the FECA be added to this section. OWCP agrees that
it should appear, but as this language applies to many aspects of
claims processing, it is being added to Sec. 10.0.
Section 10.119
An agency made two comments about delayed controversion which
apparently flowed from the proposal to reduce the number of days
allowed for filing notices of injury and occupational disease from 10
to five days. It asked whether OWCP would provide written explanation
of an acceptance if the agency contested the claim within 30 days of
receiving the notice from the claimant, even if the claim was not
contested on the notice itself. OWCP will in fact provide such written
explanation, and this section has been modified accordingly.
Section 10.121
Two employee organizations suggested that the phrase ``up to'' be
removed, so that employees will always have 30 days to respond to a
request for information. OWCP concurs, and the language of the current
Sec. 10.110(b) regulation is being retained in this regard.
Section 10.127
One employee organization suggested that the word ``should'' in the
second sentence be changed to ``will'', both to ensure that the
employee's representative is properly notified and to be consistent
with the language in the last sentence. This change has been made.
Section 10.200
One agency requested amplification of when an agency can make
preliminary determinations on an employee's entitlement to COP other
than in the situations described in Sec. 10.220 and Sec. 10.221.
Another agency suggested that the proposed language did not make it
clear enough that the employing agency must pay COP, even while
controverting it, except for certain delineated reasons. A labor
organization also suggested clarifying language in this regard.
The policy behind the proposed rule was and remains that there are
no circumstances under which an agency can refuse to pay COP, except
for those listed in Sec. 10.220 and Sec. 10.221. The confusion and
doubt expressed in the comments, however, pointed to a need for
clarification. OWCP found language suggested by an employing agency to
be helpful in this regard and changed Sec. 10.200(b) accordingly.
Moreover, in paragraph (a), the phrase ``workers'' compensation
benefits'' has been changed to ``wage loss benefits'' to make the
meaning more clear. Finally, paragraph (e) lacks the words ``employing
agency's'' before the word ``premises''. This oversight has been
corrected.
Sections 10.205 and 10.207
These sections elicited the most comments with respect to COP (six
and seven, respectively). These sections propose that, to use COP:
Disability must either (1) begin within 30 days after the date of
injury (Sec. 10.205(a)(3)); or (2) recur within 30 days after the first
return to work (Sec. 10.207(c)).
One agency objected to shortening the time frame for commencing COP
after suffering a recurrence of disability, and noted that since a Form
CA-2a was required, OWCP would be put on notice of the recurrence. That
agency also pointed out that neither the current nor the proposed rules
address the situation where an employee returns to work but takes
intermittent COP for medical appointments only, and it suggested that a
new section be added to specifically allow for this. COP is
appropriately used for medical appointments, and while OWCP does not
believe a separate section is needed, a phrase to this effect has been
added to Sec. 10.205(a)(1).
Finally, that agency also suggested that employees should document
these medical visits. Since bills will be submitted to OWCP for any
medical treatment and the dates of treatment will be specified on these
bills, no additional documentation will be required.
Six labor organizations addressed the reduction in the time period
for commencing COP in both Sec. 10.205 and Sec. 10.207. One
organization noted that disability may not begin right away because,
for example, of difficulty in scheduling surgery, and that the
restriction in both sections was contrary to the remedial purpose of
COP. Another noted that complete healing following surgery may take
longer than the 30-day time frame would allow, and suggested that a
special extension to 180 days be allowed where COP is used for medical
appointments only. A third organization challenged OWCP's stated
rationale, noting that agencies do not uniformly submit claim forms in
a timely manner. This organization stated further that early
intervention is valuable in cases involving extensive disability, not
where disability is infrequent, and suggested that the intention was
really to save agencies COP payments.
A fourth organization felt that the change would deprive the
employee of one of the Act's benefits and instead allow agencies to
return employees to work before they were physically able to do so. A
fifth organization expressed deep concern with the proposal, stating
that it failed to recognize that some conditions result in delayed
disability,
[[Page 65291]]
and while it applauded efforts to minimize lost time, it asked that
other methods be used. The fifth organization suggested that the period
be reduced to 60 rather than 30 days. A sixth organization also
registered grave concerns with this change, stating that it ran counter
to the remedial intent of COP and noting that medical treatment may be
delayed beyond 30 days from the date of the injury.
COP is intended to prevent an interruption of income in traumatic
injury cases during the time period it takes for an employee to submit
a claim and for OWCP to adjudicate the claim. While the legislative
history does not specify why a 45-day maximum was chosen, the history,
supported by the plain language of the statute, makes it clear that
Congress was concerned about interruption of an employee's salary while
a claim was filed and adjudicated, but had no intention of providing an
entitlement to the entire 45-day period if wage-loss benefits could be
paid instead. Section 8118(b)(3) further provides that COP is to be
paid ``under accounting procedures and such other regulations as the
Secretary may require,'' giving the Secretary broad authority to
establish the ground rules under which COP will be paid.
However, to mitigate any problems which a 30-day maximum time frame
for beginning to use COP might cause, the time frame in the final rule
has been changed to 45 days. Despite this change, OWCP believes that it
will still be able to fulfill its goal of returning employees to work
at the earliest possible time. As noted in the Preamble to the Proposed
Rule, it is best if OWCP learns of lost-time cases as soon as possible
so that early intervention can facilitate an early return to work.
Continued disability-related absences, even intermittent absences, can
prevent OWCP from intervening during this crucial time. OWCP recognizes
that this need must be balanced against the need to ensure an income
stream. The two are not mutually exclusive, however, and the efforts of
the agencies and OWCP to shorten the time period required to process
claims and pay benefits will prevent interruptions to the income
stream.
One example put forth in favor of retaining the existing period for
payment of COP when disability does not begin right after the date of
injury is that of a claimant whose surgery cannot be scheduled within
30 days. If the claimant continues to work, lost time does not begin
until the date of surgery, and if this date is more than 30 days past
the date of injury, the individual will have no entitlement to COP and
no income.
In this scenario, however, the income stream would not be
interrupted. OWCP would note that surgery is pending, and the
anticipated lost time would allow the agency and OWCP to process claim
forms for wage-loss benefits so that the income stream would not be
interrupted. Indeed, this is the very kind of scenario in which COP
would not be appropriate, since such lost time is anticipated well in
advance and the agency and OWCP have time to process the claim to
provide the wage-loss benefits under the Act.
Finally, several commenters noted that employees in some cases lose
time intermittently just to attend medical appointments, and cited this
kind of time loss as a reason for not reducing the period for
commenting use of COP. OWCP does not disagree with this argument, but
after careful consideration, it concluded that administration of a
provision with different time frames with respect to disability and
medical care would be too complicated, both for employing agencies and
for OWCP itself. Therefore, the time frame for beginning to use COP
will be 45 days in all circumstances.
Three agencies and a labor organization noted a contradiction
between a statement in this section and a statement in Sec. 10.105(a),
with respect to whether a Form CA-2a, Notice of Recurrence, must be
filed during the COP period. As noted in the comments about
Sec. 10.105, the statement in Sec. 10.207(a) is correct.
Section 10.205(a)(2)
An employing agency inquired as to what would constitute ``another
form'' acceptable to OWCP, and whether a letter would suffice. This
language is included so that the regulations reflect OWCP's position
that a Form CA-2, CA-7 or CA-8 (all of which contain words of claim)
fulfills the requirement that notice be given ``in writing'' under the
appropriate circumstances. The word ``form'' does in fact denote an
OWCP-approved claim form, and a letter would not serve the purpose
described herein.
Section 10.206
One agency expressed concern with the retroactive election of COP
in those cases OWCP terms ``short form closure'' cases, that is, cases
where there is no wage loss claim and the medical bills do not exceed a
certain dollar amount. In these cases, no formal acceptance is issued.
The agency points out that in such cases, the wording in Sec. 10.206(a)
should be revised to reflect this by adding the parenthetical clause
``(if written approval is issued).'' This suggestion is accepted and
the language has been changed accordingly.
Section 10.210
An employing agency argued that employees should submit medical
reports to employing agencies as well as to OWCP. This issue is
addressed in the comments about Sec. 10.331(b). Several commenters
pointed out a typographical error (``employer'' instead of
``employee''), which is corrected in the final rule.
A labor organization objected to changing the period within which
medical evidence supporting disability must be submitted to the
employer from 10 working days to 10 calendar days. This change was made
because it is important to obtain this evidence as soon as possible.
Using working days, which do not include Saturdays, Sundays and Federal
government holidays, can easily result in a period of 15 or more
calendar days elapsing before a medical report is received, a period
during which the employee continues to be absent from work. OWCP has
discussed the importance of early intervention, and the earlier the
submittal, the better. This section is entitled ``Employee's
Responsibilities'' to emphasize that return-to-work efforts are
required by employees as well as employers and OWCP. Certainly the
employee, who has chosen his or her physician, has the most leverage
over the physician at this crucial time and can best ensure that such
medical evidence is submitted. The new language requiring the report to
contain a statement as to when the employee can return to work is
consistent with and essential to this goal.
Section 10.211
One labor organization suggested wording changes to subsection (c)
that would have the effect of eliminating the distinction between
controverting a claim for COP and other objections an employer might
raise to a claim under the FECA. Unlike a general objection that would
have no immediate consequences for a claimant pending action by OWCP,
controverting a claim for COP is a preliminary determination by an
employer that stops a claimant's regular pay. Therefore, OWCP wants to
retain the distinctive nature of this particular type of objection, and
the suggested changes have not been adopted.
In subsection (d), several commenters asked what the phrase ``other
forms approved by the Secretary'' meant. This phrase was added to
ensure that the
[[Page 65292]]
regulations reflected OWCP's position that a Form CA-2, CA-7 or CA-8
(all of which contain words of claim) will fulfill the requirement that
notice be given ``in writing'' under the appropriate circumstances. In
addition, one labor organization suggested changing ``return'' to
``transmit'', and this change has been made. Finally, three agencies
objected to the requirement that Form CA-1 be submitted to OWCP within
five calendar days. For the reasons stated in the response to the
comments received to Sec. 10.110, OWCP has decided to keep the time
frame of 10 working days, and the language of paragraph (d) has been
changed accordingly.
Section 10.215
One agency noted with respect to paragraph (d) that there appeared
to be a change in how COP days are calculated in this section as
proposed. The section states that days off are counted toward COP if
COP was used in the days immediately before and after the days off. The
comment pointed to an inadvertent modification in how days are
calculated and the final version has been changed to read that if COP
is used on the day before or the day after days off and disability is
supported by medical evidence, the days off are counted toward COP.
The same agency suggested language on calculating COP days for
part-time or intermittent employees, and that language has been
adopted. However, this agency's suggestion that OWCP add a new
paragraph to Sec. 10.215 to address the circumstances under which COP
may be used for obtaining medical treatment would both limit the scope
of paragraph (c) and unnecessarily restrict OWCP's ability to monitor
the provision of medical treatment, and therefore the requested
addition has not been made.
Sections 10.216 and 10.217
Two Federal agencies noted that the inclusion of differential and/
or Sunday premium pay in the pay rate for COP was contrary to
provisions in two appropriation bills passed by Congress, Pub. L. 104-
208, section 630, 110 Stat. 3009, 3362 (1996) and Pub. L. 105-61,
section 636, 111 Stat. 1272, 1316 (1997), which prohibited Federal
agencies funded by those bills from paying differential and/or Sunday
premium pay to their employees unless they actually performed work
during the time period relevant to such pay. These agencies therefore
suggested that both Secs. 10.216(a)(1) and 10.217 be changed to reflect
that these particular increments of pay are not to be included in the
pay rate for COP.
Ever since Congress amended the FECA in 1974 to provide for COP,
OWCP has directed agencies to include premium, night or shift
differential, Sunday or holiday pay, and other extra pay in their
calculations of the pay rate for COP. However, in several recent
appropriation bills, Congress has included language similar to the
prohibitions cited by the two Federal agencies, without actually
amending the underlying statutory authority for such increments of pay
or overturning court decisions construing such statutory authority.
Therefore, while it is clear in the absence of such appropriations
language that it would still be proper for OWCP to require the
inclusion of these two increments of pay in the pay rate for COP, it is
also clear that the statutory authority for the payment of such
increments is not derived from the FECA itself, nor are these
increments currently being paid in a consistent manner throughout the
entire Federal workforce due to the varied scope of agency legal
authority to spend appropriated funds. In addition, the agencies funded
by the appropriation bills in question would again be required to
include these increments of pay in the pay rate for COP should the
prohibition on their payment not be included in future appropriation
bills.
From an administrative standpoint, there is little justification
for OWCP involvement in payroll functions among the various agencies,
only some of which are affected by the appropriation bills noted above,
since COP constitutes a continuation of an employee's ``pay'' that is
calculated and paid by his or her agency rather than a form of
``compensation'' that is calculated and paid by OWCP. Accordingly,
Secs. 10.216(a)(1) and 10.217 are revised to reflect these
circumstances.
One of the same two Federal agencies also suggested adding language
to Sec. 10.216(a) to emphasize that ``weekly pay'' is based on an
average of the employee's weekly pay over the prior 52 weeks. However,
Sec. 10.216(a) already explains this very point, and thus the suggested
addition is not made. One labor organization urged that Sec. 10.216
include a reference to paid leave in determining how COP is calculated,
for fear that agencies would exclude it from their calculations.
Certainly, paid leave must be included in the calculation of COP. While
neither OWCP's regulations issued since 1975 nor the Federal (FECA)
Procedure Manual make reference to paid leave, there is no indication
that this absence has caused the feared exclusions to occur. Therefore,
OWCP sees no need to add the requested reference.
Sections 10.220, 10.221 and 10.222
One labor organization recommended changes to Sec. 10.221 regarding
the requirement that an agency controvert a claim for COP before it
stops an employee's pay. However, the suggested changes, which involve
retention of language in current Sec. 10.203(b), would not maintain the
desired distinction between controverting and otherwise objecting to a
claim, and they have therefore not been incorporated.
A number of labor organizations noted that the existing rules
direct agencies to retroactively reinstate COP which it had stopped
because medical evidence showing disability had not been received
within 10 days, when that medical report is received. The language has
been added to Sec. 10.222(a)(1).
One agency asked about the type of medical evidence necessary to
support the continued payment of COP and requested further guidance
from OWCP. The evaluation of medical evidence by the employing agency
is limited to a determination of whether, on its face, the medical
report supports disability. Agencies do not properly consider medical
rationale. Given this limited involvement, further guidance of the type
requested is seen as unnecessary.
One labor organization objected to the provision in
Sec. 10.222(a)(1) that would allow an agency to stop paying COP if the
claimant fails to submit the required medical evidence within 10
calendar days and requested that the time frame of 10 working days be
retained. However, as noted previously in the response to this labor
organization's objection to the equivalent language in Sec. 10.210(b),
the change to calendar days from working days was made because it is
important to obtain this evidence as soon as possible. Therefore, for
the same reasons that supported maintaining the equivalent change in
Sec. 10.210(b), the requested change in Sec. 10.222(a)(1) has not been
made.
Another labor organization objected to the change allowing the
termination of COP when a personnel action--initiated before the injury
and including a removal action--becomes final following the injury and
during the COP period. No reason was offered for the objection,
however, and the program believes that this clarification is necessary
to ensure that employees who would otherwise not have received salary
do not receive it merely because of the COP provisions. This change was
supported by one agency.
Yet another labor organization, along with an agency, suggested
that the
[[Page 65293]]
proposed rules clarify the employing agencies' authority to terminate
COP. An agency noted that Sec. 10.222(a)(3), regarding refusal of a
written offer of suitable work, appears to change the current authority
for an agency to stop COP. Such a change was not intended, and so new
language has been added to this section which makes it clear that an
agency can stop COP when an employee refuses a written offer of
suitable work, but that OWCP has final authority to determine whether
the termination was appropriate and can order retroactive restoration
of COP benefits improperly terminated.
The labor organization noted that the language preventing an agency
from terminating COP except under the circumstances listed in existing
Sec. 10.203 and Sec. 10.204 does not appear in the proposed rules. The
reasons for termination have remained essentially the same (except for
termination for personnel actions initiated before the injury which
become final after the injury). While the language in Sec. 10.220 and
Sec. 10.222 is phrased to limit authority of the agency not to pay
(Sec. 10.220) or to stop paying (Sec. 10.222) in those circumstances
listed, the comments show that the program's intent was not clear.
Therefore, additional language has been added to Sec. 10.220 and
Sec. 10.222(c), clarifying that the agency cannot stop COP to which the
employee is otherwise entitled except for the reasons set out in these
two sections, or unless OWCP directs COP to stop, or unless the
individual has returned to work.
Sections 10.223
Two agencies noted that this section failed to address disruptions
by the employee's representative. That language has been added. A labor
organization noted that the ``required medical examination'' is one
required by OWCP and the regulations should so state, and this change
has been made. The organization also suggested making clear that the
suspension is subject to all appeal and review rights. This language is
unnecessary, since all adverse decisions by OWCP are subject to the
review and appeal processes set forth under the Act.
Section 10.300(b)
While agreeing with the proposed language that Form CA-16 need not
be issued more than a week after the injury occurs, one agency
suggested that this section be changed to state that the form need not
be issued if the employee reports the injury more than one week after
its occurrence. The current language covers this situation as well as
the situation where an employee reports an injury right away but does
not appear to need medical care for up to a week afterwards. Therefore,
OWCP does not believe that the suggested change is necessary.
Another agency suggested that the time for issuing Form CA-16 be
increased from four to 24 hours, citing distances among supervisors,
injured employees, medical treatment facilities, and those authorized
to sign Forms CA-16. The four-hour time frame is the same as currently
provided, and as noted in the second sentence of this paragraph, verbal
authorization may be given if necessary. In view of the excellent
telephone and facsimile communications generally available in the
United States, OWCP sees no reason to increase this time frame.
A commenter also objected to the time frame stated, claiming that
reaching OWCP may take a week, that care cannot be authorized unless
the specific procedures are known ahead of time, and that employees
injured at night and on weekends are denied equal access to care. These
arguments are not persuasive, especially as the proposed rule is
unchanged from the existing rule, and the commenter's suggestion that
the employer authorize one visit for medical care until OWCP can
approve further care is impractical.
Three labor organizations argued that the proposed rule limiting
issuance of Form CA-16 to one week following the injury is inconsistent
with the statutory 30-day requirement for claiming COP. Still another
labor organization stated that changing to a one-week limit from what
it considered to be the current time frame of six months from the date
of injury to be ``radical and inappropriate''. OWCP does not agree. The
purpose of Form CA-16 is to authorize urgently-needed medical care in
connection with a work-related traumatic injury, not to provide blanket
medical coverage. An employee whose need for medical care develops so
gradually that it is not apparent until a week after the injury
occurred cannot accurately be said to require urgent medical care. The
time requirements for claiming COP have no relation to those governing
issuance of Form CA-16.
Section 10.300(d)
Three employee organizations suggested that the employer be
specifically instructed to ``advise the employee of the right to
initial choice of physician'', parallel to the language of proposed
Sec. 10.211(b) with respect to the employee's right to COP. This change
has been made.
Another employee organization suggested that this paragraph allow
for initial choice of medical facility as well as physician. Inasmuch
as a report from a physician is needed to support a claim for
compensation, the inclusion of the term ``medical facility'' is
irrelevant at best, and might prove misleading as well.
A commenter stated that this section does not indicate how OWCP
will notify physicians that they have been excluded. This information
is provided in subpart I, which is referenced in this paragraph.
Section 10.303
Two agencies expressed their appreciation for the clear statement
with respect to issuing Forms CA-16 for simple workplace exposures to
hazardous substances when injuries have not occurred.
Section 10.310
Two agencies stated their support for the changes in this section
with respect to appliances, supplies, and generic equivalents for
prescribed medications, indicating their belief that these measures
would assist in cost containment (and, in the view of one of them,
sound fiscal management). Another agency stated its approval of the
program's cost containment efforts in general. Another commenter, on
the other hand, questioned how OWCP would apply the test of cost-
effectiveness.
A commenter also questioned the statement that OWCP ``will not
approve an elaborate appliance or service where a more basic one is
suitable'', positing that OWCP will oppose use of higher-cost
diagnostic tests (for instance MRIs, in comparison with x-rays) in a
misguided attempt to cut costs. This conclusion is incorrect. The
statement is intended to address requests for special equipment, such
as exercise bicycles, and special services, such as health club
memberships, when prescribed to treat the effects of an injury. OWCP
will not pay for a top-of-the-line appliance or service where a less
expensive equivalent exists. However, in matters of diagnosis and
treatment, OWCP does not and will not attempt to second-guess
physicians.
Section 10.310(b)
The last sentence in this paragraph gives OWCP the authority to
require the use of generic equivalents where available. An agency
suggested that OWCP require the use of generic equivalents where
available for all prescribed medications, unless the employee shows
good cause for not
[[Page 65294]]
doing so. Another commenter, on the other hand, stated that OWCP should
not be allowed to require the use of generic equivalents if they do not
represent the ``SOC'' (presumably ``standard of care''), since doing so
``sets MDs up for malpractice''.
As the purpose of adding this provision to the regulations is to
provide OWCP with the flexibility to implement such a policy in the
future, the first comment is not adopted. With respect to the second
comment, use of generic equivalents is a commonly accepted practice in
many health plans and medical benefit programs, and the program has no
intent to subvert generally accepted standards of care. The statement
will therefore remain unchanged.
Section 10.311
With respect to Sec. 10.311(a), two agencies stated their
disagreement with what they considered the expansion of chiropractic
services and suggested that the first sentence be reworded to more
closely follow the statutory language. However, the proposed change is
virtually identical to the last sentence of section 8101(2), and as
there is no intent to expand the meaning of the statute, and the costs
involved are consistent with the statute and with OWCP's past practice,
OWCP does not believe that the language of this section needs to be
modified.
Another commenter objected to Secs. 10.311(a) and (b) on the basis
that chiropractors cannot treat subluxations. Such treatment is
authorized at section 8101(2).
Section 10.313
An agency asked that this section more clearly define when
preventive treatment may be authorized and when it may not,
particularly in the context that a work-related injury must be present
before treatment may be authorized. Paragraphs (b) and (d) already
refer to specific injuries, and paragraph (a) addresses complications
of agency-sponsored preventive measures, which are considered to be
injuries. Paragraph (c) refers to conversion of tuberculin reaction
after exposure to tuberculosis in the performance of duty. Since
tuberculosis is transmitted invisibly, through the air, a specific
injury is inferred from the conversion. For these reasons, OWCP does
not believe that changes to this paragraph are necessary.
Section 10.314
Two employee organizations objected to the change in method of
payment to attendants as represented by this section, given the
language of section 8111(a). The Preamble to the Proposed Rule (62 FR
67123-67124) sets forth in detail OWCP's reasons for making this
change, and OWCP continues to believe that this exercise of the
Director's discretion will be beneficial in several ways. As noted in
the Preamble, employees currently receiving an attendant's allowance
under section 8111(a) will not be affected by this change.
Two agencies stated that they support the changes noted in this
section, one indicating its belief that this provision will help OWCP
to monitor and control medical costs in the future. The other suggested
that this section address the desired billing method, either
specifically or by cross-reference to subpart I. OWCP concurs, and a
cross-reference to Sec. 10.801 has been added.
The second agency also suggested that the new provision apply to
all cases, and that attendants' allowances currently being paid under
section 8111(a) be discontinued. In this agency's view, such a change
would reduce workload and avoid any confusion which might result from
having two methods of payment. Given the relatively small number of
cases affected by this provision, OWCP does not believe that the
benefits which would result from changing the method of payment to
claimants now receiving augmented compensation for attendants would
outweigh the disruption which might result.
Section 10.320
An agency questioned whether an employee's spouse may attend a
second opinion examination, and if not, asked that this be stated in
the regulation (and in the letters notifying claimants of
appointments). The proposed paragraph states that ``the employee is not
entitled to have anyone else present at the examination * * *.'' OWCP
believes that the word ``anyone'' is inclusive enough to convey the
intended meaning of this sentence, and that clarification is
unnecessary.
A labor organization commented that it is unlikely that personal
physicians will participate in second opinion examinations, due to
other commitments, and that is unfair for an employee to be ``be denied
an opportunity to have a second person present during the
examination.'' Another organization expressed similar concerns and
stated that the language of Sec. 10.323 is sufficient to address any
improper behavior.
Section 8123(a) provides that ``The employee may have a physician
designated and paid by him present to participate in the examination.''
The FECA says nothing about other individuals participating in the
examination. Of course, it is perfectly permissible for any individual
to accompany the employee to the examination and remain nearby, in the
waiting room, if the employee so desires.
On another subject covered by this section, an employee
organization argued that the provision for sending a case file for
second opinion evaluation without actual examination of the claimant is
counter to the clear language of section 8123, and should therefore be
removed. Evaluation of the case file without examination of the
claimant can assist claims staff in resolving such issues as causal
relationship in occupational disease cases, or making retroactive
determination of whether surgery should be authorized. Furthermore, in
Melvina Jackson, 38 ECAB 443 (1987), the ECAB authoritatively held that
this section of the FECA is not limited to physical examinations of a
claimant and specifically construed section 8123(a) as providing for
evaluations of the evidence in a claimant's record without an actual
physical examination. Therefore, the suggested deletion is not made.
Section 10.321
One agency asked that a statement be added to this section
clarifying that not every difference in medical opinion results in a
referee examination. The requested clarification is consistent with
decisions of both the ECAB (Andrea Kay Roberts, Docket No. 95-1839
(October 22, 1997)) and federal courts that have addressed this point
(McDougal-Saddler v. Herman, No.Civ.A. 97-1908 (E.D.Pa. December 24,
1997), and Chaklos v. Reich, et al., No. Civ.A. 95-1763 (W.D.Pa. August
25, 1997)). OWCP agrees that clarifying this section would be useful
and therefore a new paragraph (a) has been added. Also, the current
text has been relettered paragraph (b), and the title of this section
has been slightly revised to more accurately reflect its subject
matter.
One labor organization argued that the provision for sending a case
file for referee evaluation without actual examination of the claimant
is counter to the clear language of section 8123, and should therefore
be removed. However, in Melvina Jackson, 38 ECAB 443 (1987), the ECAB
noted that it had never held that an actual physical examination of a
claimant was necessary to resolve disagreements using the medical
referee provisions of
[[Page 65295]]
section 8123(a). Therefore, the suggested deletion is not made.
In paragraph (b), the reference to section 8123(a) has been
replaced with a reference to Sec. 10.502.
Section 10.322
An agency asked that a statement be added to this paragraph noting
that the costs of second opinion and referee examinations are
eventually charged back to employers. However, the costs associated
with medical examinations are no different from other benefits under
the FECA, as all expenses are charged back to employers. The mechanism
for doing so is described in the FECA at section 8147. In line with
OWCP's attempt to avoid repeating statutory provisions in the
regulations wherever possible, the program does not believe that
addition of language about chargeback of costs associated with medical
examinations is necessary or desirable.
Section 10.323
An agency suggested that the title of this section be revised to
include the word ``penalties'', and this change has been made.
Section 10.324
A labor organization argued for inclusion of language which would
bar the results of medical examinations requested by the employer from
being used to reduce or terminate OWCP benefits, unless those results
were corroborated by medical examinations directed by OWCP. The
program's procedures have stated for some time that such examinations
will not be used in this way, and OWCP is not aware of any problems
which have arisen with respect to this policy. Therefore, the program
does not believe that it is necessary to address it by regulation.
Section 10.330
See the discussion above concerning Sec. 10.115. This section is
being modified to make clear that in all cases the employee is
responsible for submitting medical evidence, or arranging for its
submittal.
A commenter suggested that medical reports require the disclosure
of previous claims for the same condition, pre-existing conditions of
the same part of the body, and hobbies or other occupations which may
contribute to the condition claimed. OWCP already has the capacity to
identify previous Federal workers' compensation claims for injuries to
the same part of the body. Where necessary, OWCP requests information
about pre-existing conditions, hobbies and other jobs as part of
evaluating claims for disability.
The same commenter stated that examining physicians should be
required to state whether the condition found is causally related to
employment. In fact, such a requirement already exists. The commenter
also suggested that OWCP physicians review all claims to ensure that
causal relationship is properly established. OWCP will shortly begin
using automated decision tables, which will compare the condition
claimed on the bill with the condition accepted in order to identify
problematical acceptances.
Section 10.331(b)
An agency suggested that the employee or treating physician submit
copies of medical reports to the employer, stating that while Form CA-
17 is useful, physicians do not always complete it. The agency also
suggested that OWCP should be required to submit to the employer a copy
of any medical report showing that the employee can return to work in
some capacity.
Another agency characterized the requirement that reports be sent
directly to OWCP as ``directing employees and medical providers to
circumvent the employing agencies'' and claimed that this represents a
detrimental change, although current Sec. 10.410(b) also requires
submittal of reports to OWCP. This agency also stated that this policy
will hinder agencies from helping claimants with requests for surgery
and claims for wage loss and from becoming aware of new medical
conditions which need to be considered in making offers of
reemployment.
A third agency stated that it has difficulty managing cases without
immediate access to medical reports, which it cannot always obtain
right away from OWCP. Another commenter makes this argument as well.
This set of comments speaks to the need for careful information-
gathering and for close coordination among employers, employees and
OWCP. They also speak to the rights and responsibilities of all parties
in the claims process. In its proposed regulations, OWCP has tried to
strike a balance among these sometimes competing interests. Employers
usually need copies of medical reports primarily to identify jobs to
which their injured employees may return, and Form CA-17 is designed
explicitly for this purpose. That medical providers do not always
complete forms and reports as requested is an experience shared by
OWCP, and the program does not believe that adding another requirement
for information submittal will truly address this issue, particularly
when the medical reports may not accurately describe work limitations.
With respect to managing claims and the need for up-to-date
information when offering reemployment, one of the reasons that OWCP
uses the services of registered nurses is to facilitate coordination
and exchange of medical information among claimants, employers, and
medical providers. When a claimant can return to work, whether to full
or light duty, full or part time, it has been OWCP's experience that
the nurses are able to provide information quickly and accurately so
that reemployment can take place as soon as possible.
For all of these reasons the program does not believe that a change
in this section is warranted. The agency may, however, obtain copies of
such medical evidence directly from OWCP.
Another issue raised by several employing agencies is whether Form
CA-17 may be used only for traumatic injuries. One agency notes that it
might well be used to determine work limitations in certain kinds of
occupational illness cases. OWCP concurs, and the word ``traumatic''
has been removed from this paragraph.
Section 10.333
One employee organization suggested that this section state that
medical reports in support of claims for schedule awards must be based
on the American Medical Administration's (actually, American Medical
Association's) Guides to the Evaluation of Permanent Impairment. OWCP
concurs, and this reference has been added to this section.
Section 10.336
A commenter stated that the time frames for submittal of bills are
too long and suggested that OWCP require submittal within 30 days of
the service date. However, the time frames set forth in the regulations
are consistent with the practice of the insurance industry in general,
and OWCP sees no reason to change them. The commenter also suggested
that OWCP be required to process bills within 60 days of receipt. OWCP
adheres to internal standards which require that 90 percent of medical
payments be made within 28 days of receipt and that 95 percent be made
within 60 days of receipt. For this reason, OWCP does not see the
benefit of including specific time periods in the regulations.
Requiring an ``attached medical report'', as is also suggested, is
impractical in an automated bill processing environment.
[[Page 65296]]
Section 10.337
An employer and another commenter objected to the provision for
reimbursement on the basis that it is unfair to both the agency, which
will have to pay the chargeback bill, and to providers who adhere to
the fee schedule. While OWCP does not consistently and/or routinely
reimburse employees for these excess charges, paragraphs (b) and (c)
have been revised so that the employee will be responsible for
contacting the provider to obtain refund or credit. If the provider
does not comply with this request, the claimant will need to submit
documentation of the attempt to OWCP. OWCP may in its discretion make
up the difference to the claimant, after reviewing the facts and
circumstances of the case. Once such a payment is made, the employee
would be aware of the monetary costs of continuing to seek treatment
with such a provider, and OWCP might consider not reimbursing the
employee for any subsequent excess charges, thereby minimizing the
impact of Sec. 10.337 on an agency's chargeback costs. (Section 10.802
has been modified consistent with these changes.)
Two labor organizations suggested that the language of Sec. 10.813
be repeated for claimants in this section. Sections 10.337 and 10.813
are intended to be parallel in structure, and OWCP does not believe
that repeating Sec. 10.813 would serve any useful purpose.
Section 10.401
With respect to the period of disability which must elapse before
the claimant may be compensated for the first three days of wage loss,
an agency asked that the method of counting the days be clarified. The
word ``calendar'' is being inserted to make the meaning clear. The
agency also inquired as to whether the 14 days may be intermittent, and
in fact they may.
One agency suggested a cross-reference to Sec. 10.6. A specific
reference to section 8110(a) would probably be more useful, and one is
therefore being added.
Section 10.403(a)
One agency commented, apparently with respect to this section, that
determinations of wage-earning capacity should be tied to the minimum
wage rate. However, the FECA has no provision for establishing such a
link.
Two labor organizations argued that, consistent with ECAB decisions
in this area, any position selected as representing an employee's wage-
earning capacity must be actually available to the employee within his
or her commuting area. However, this is an incorrect interpretation of
the ECAB's rulings, which have consistently held that OWCP only needs
to find that a position is being performed in sufficient numbers in the
area in which the employee lives so as to be considered reasonably
available before it can determine that the job represents the
employee's wage-earning capacity [e.g., Kenneth H. Cummings, Sr., 28
ECAB 284 (1977); James B. Stewart, 32 ECAB 36 (1980)]. Accordingly,
since there is no requirement that the selected position actually be
available to the employee, the suggested change is not made.
Section 10.404
Two agencies objected to the inclusion of pre-existing impairments
in payments made under the schedule award provisions of the FECA. These
agencies argued that employees who are compensated for the full extent
of their impairments actually receive benefits for non-occupational
impairment.
It is a well-settled principle of workers' compensation law that
each employee is hired ``as is''. The employee is a whole person, with
various strengths and weaknesses, some of which pre-exist employment
and some which develop concurrently with it. Apart from the practical
difficulties which the commenting agencies admit would result from any
attempt to differentiate work-related from non-work-related impairment
to a schedule member, such an attempt would violate the remedial nature
and spirit of the FECA.
One agency suggested re-writing this section to reflect a means
test for dependency. The FECA contains no provision for such a test
(see the comments about Sec. 10.6).
A labor organization suggested restoring text concerning payment
for schedule impairment which appears in current Sec. 10.304(c). This
material already appears in section 8107(a), and OWCP sees no reason to
repeat it here.
Another commenter objected to the program's use of the AMA's Guides
to the Evaluation of Permanent Impairment for determining schedule
awards under the FECA, indicating that it focuses on the extent of the
initial injury or illness, not the degree of recovery. This, however,
is not true. The AMA states on page 1/1 of the fourth edition that
``The Guides defines `permanent impairment' as one that has become
static or stabilized during a period of time sufficient to allow
optimal tissue repair, and one that is unlikely to change in spite of
further medical or surgical therapy.'' OWCP does not agree with the
commenter's suggestion that the program use another publication for
determining schedule awards.
The commenter also questioned whether medical benefits are payable
in cases where the claimant has reached maximum medical improvement.
Such expenses are in fact payable as long as treatment is found to be
necessary and reasonable.
Section 10.405
An agency suggested addition of a means test for dependents to this
section and to Sec. 10.6. The FECA contains no basis for such a
measure.
Section 10.406
A commenter suggested use of different percentages than those
provided by law for payment of compensation for disability. Such
modifications would require a change to the FECA itself.
Section 10.410
One labor organization requested that OWCP restore the partial
description of the compensation payable in death cases that was set out
at Sec. 10.306 of the 1987 regulations (the organization was apparently
unaware that the FECA was amended in 1990 to change the age of
remarriage noted in section 8133(b)(1) to 55). Since the proposed rule
was published in the Federal Register on December 23, 1997, the ECAB
issued a decision construing section 8133(a)(5) of the FECA for the
first time. That decision is Clyde Stevenson (Donna R. Stevenson),
Docket No. 95-3016 (issued February 4, 1998). In light of the
authoritative construction of this section of the FECA provided by the
ECAB in Stevenson, and to address the concerns of the labor
organization, the heading and text of Sec. 10.410 are revised
consistent with the request.
Section 10.417
A commenter suggested that this section should state whether a
handicapped child continues to be entitled to benefits if the employee
dies. If this happens, payments end unless death benefits are awarded.
No change is necessary as a result of this comment.
Section 10.420
In all four subsections, the statutory reference has been changed
to section 8146a, not 8146(a).
Section 10.421
Two Federal agencies recommended that the election provision in
Sec. 10.421(a) be modified to make it either partially or fully
irrevocable, citing the Office of
[[Page 65297]]
Personnel Management's (OPM's) rule that elections of benefits in death
cases are irrevocable, while another commenter recommended that the
provision be removed entirely. OPM and OWCP have adopted their
respective policies for particular reasons, and neither agency is
unaware of the other's position.
While it is understandable that agencies would desire that OPM and
OWCP policy be the same, the changes proposed by these commenters would
not be consistent with the settled construction given to section 8116
of the FECA by the ECAB in such leading cases as Adeline N. Etzel
(Bernard E. Etzel), 21 ECAB 151 (1969); Charles W. Akers, 24 ECAB 316
(1973); Louis Teplitsky, 29 ECAB 826 (1978); and Gary J. Bartolucci, 34
ECAB 1569 (1983). Therefore, the suggested modifications are not
adopted.
The latter commenter recommended that both subsections (a) and (d)
of Sec. 10.421 be modified to automatically end compensation payments
at retirement age (except for permanently totally disabled
individuals), at which time such beneficiaries would ``revert'' to
their respective retirement systems. The commenter also recommended
that the dual benefit restrictions set out in Sec. 10.421(a) also apply
to the military payments described in Sec. 10.421(b). Absent an act of
Congress amending section 8116, however, such changes cannot be made,
and OWCP is therefore not adopting them.
Finally, the same commenter recommended that the first sentence of
Sec. 10.421(e) be modified to add the requirement that beneficiaries
provide ``information on any other compensation or injury.'' However,
such information would have no effect on a beneficiary's entitlement to
compensation under the provisions of section 8116, and the requested
modification is therefore considered unwarranted.
Section 10.430(a)
One labor organization suggested that the word ``clear'' be added
before ``indication of the period * * *'', and OWCP is making this
change. The organization also suggested that the section specify that
periodic checks are to show any deductions or adjustments affecting the
amount of the payment. OWCP is working on automated enhancements which
will allow this information to be shown, but the capacity to do so is
not yet available.
Sections 10.433, 10.436, and 10.437
Three agencies objected to being held financially accountable,
through the chargeback process, for waivers of overpayments which
resulted from errors made by OWCP. They suggested that when OWCP waives
such an overpayment, the agency should receive a credit to its
chargeback bill in the amount of the overpayment. For two reasons, OWCP
does not concur with this suggestion.
First, the FECA is remedial in nature, and OWCP considers requests
for waiver according to carefully defined procedures which are intended
to protect the interests of both the claimant and the Government. The
granting or withholding of a waiver is not intended to be a punishment
or a reward, but rather the result of an administrative process as
provided by law. Secondly, the FECA contains no provision for crediting
the chargeback with monies reflecting either the commission of errors
or the waiver of overpayments by OWCP.
Section 10.441
A commenter objected to inclusion of overpayment amounts in
agencies' chargeback bills when the claimant is not at fault and the
employer controverted the claim or detected the overpayment. The FECA
contains no provision for crediting the chargeback because of such
actions by the employer. In paragraph (b), the reference to the Debt
Collection Act of 1982 has been replaced with the Federal Claims
Collection Act of 1966 (as amended).
Section 10.500
As noted above, the proposed section has been subdivided into four
new sections (Sec. 10.500 through 10.503) for clarity, and the contents
have been slightly rearranged.
One agency objected to what it believed to be a new criterion for
defining suitable work, namely that it be ``appropriate to the nature
of the employee's usual employment''. This phrase represents a
misreading of the actual text, which is taken from section 8115, as
follows: ``appropriate to the nature of the injury; the degree of
physical impairment; the employee's usual work; * * *'' The regulatory
language contains nothing novel.
Four labor organizations argued that any position found to
constitute suitable work should be available within the employee's
commuting area. The availability of suitable work within the employee's
``commuting area'', a term which has been extensively addressed by the
ECAB, is required. See Arquelio Pacheco, 40 ECAB 277 (1988); Fred L.
Nelly, 46 ECAB 142 (1994). OWCP is modifying this section accordingly.
Section 10.501
One labor organization suggested rewording paragraph (a) to state
that OWCP's requests for medical evidence in long-term disability cases
will ordinarily occur not less than once a year. OWCP is making this
change, as the suggested wording reflects long-term OWCP policy with
respect to certain severely disabled employees.
One agency and another commenter noted that, while the Preamble to
the Proposed Rule states that benefits may be suspended for failure to
undergo non-invasive testing directed by OWCP, the text of paragraph
(b) itself does not so state. A sentence is being added to this section
to correct this oversight.
Section 10.505
One agency stated that this section combines two subsections of
section 8151(b) in error, and a labor organization made the same point
by suggesting that this section be rephrased. The word ``within'' is
being replaced by the word ``after'' to correct this oversight.
The same agency noted that, because of the importance of making job
offers in writing, Sec. 10.505(c) is better placed in Sec. 10.507,
``How should the employer make an offer of suitable work?'' OWCP
concurs, and the language has been moved accordingly.
Section 10.505(a)
One labor organization suggested that this section require the
employer to advise the employee in writing of the specific duties
involved. This change has been made.
Section 10.506
An employer suggested that agencies not be limited to the use of
Form CA-17 in gathering medical information from physicians. The form
is usually adequate for this purpose, and this section has been revised
to so state. Another agency wanted to remove the words ``in writing''
from this section, on the basis that return to work might be delayed or
improper job placements might result from unclear descriptions of
restrictions from physicians. The need for clarity in such descriptions
is one of the two main reasons for requiring such offers to be made in
writing, the other being the need for diligent attention to due process
requirements. The suggested change has not been made.
A labor organization asked whether it is appropriate to use Form
CA-17 for occupational diseases as well as traumatic injuries. OWCP has
revised Sec. 10.331(b) to allow its use in both kinds of situations.
[[Page 65298]]
This organization, along with one other, also suggested that
employers be allowed to contact employees only in writing. Also, two
labor organizations stated that employers should be explicitly
prohibited from contacting physicians through phone calls or personal
visits. OWCP concurs with both of these ideas, and the suggested
changes have been added to this section.
Another labor organization objected to the provision allowing
employers to contact employees at reasonable intervals to obtain
medical evidence, due to a perceived possibility of harassment. While
reasonable people may interpret the phrase ``at reasonable intervals''
differently, the phrase clearly does not provide license for
harassment. OWCP does not believe that there is merit to the suggestion
that this provision be removed.
Section 10.507
Two labor organizations stated that employers should be required to
advise employees in writing of the information specified in paragraphs
(a) and (b). This change has been made. (Also, ``should'' in (a) has
been changed to ``shall'' for consistency with (b).)
Section 10.507(c)
An agency asked whether a job offer can be made verbally and
followed up in writing. As discussed with respect to Sec. 10.331(b),
OWCP has tried to strike a balance among the sometimes competing
interests of employers, employees, and OWCP itself.
In this case, the time gained by allowing verbal job offers must be
balanced against the need to protect the employee's due process rights.
The FECA provides a severe and permanent penalty for refusing an
offered job, and the ECAB has remanded cases where OWCP has not
scrupulously followed various procedural requirements. Job duties must
be defined with great precision so that both employer and employee
correctly understand them, and the potential for miscommunication is
always higher in verbal than in written exchanges. However, as a
practical matter, verbal job offers can expedite the process of
reemployment, which benefits both the employer and the employee.
To both allow this flexibility and provide due process rights, this
section has been modified to state that a job offer may be made
verbally as long as the employing agency follows it up with a detailed
written job offer within two business days of the verbal offer. This
amount of time should be sufficient for the claimant to consider the
job duties and assess whether he or she can perform them. The second
half of this section has also been relettered ``(d)''.
Section 10.508
A labor organization stated that, since relocation expenses may be
paid only to individuals who have been separated from the employer's
rolls, the title of this section should be modified. However, the
program believes that the question should continue to be phrased more
generally, since it will arise with respect to employees still on the
employer's rolls as well as to separated employees.
The same organization, and two others as well, proposed that the
regulations require OWCP to notify employees that relocation expenses
are payable when the job is offered. OWCP concurs that such
notification should be provided in any case where a finding is made
that the job is suitable, and text has been added to this effect.
Section 10.509
Three labor organizations suggested that the term ``reduction-in-
force'' in Sec. 10.509(a) be further modified by adding language that
would limit its application to ``general'' or ``officially mandated''
actions. Using these modifiers, however, would not be consistent with
ECAB decisions finding that employees do not sustain compensable
recurrences of disability when they lose their light-duty positions
pursuant to many different types of reductions-in-force.
Moreover, OWCP must be able to rely upon employers (and claimants)
to advise it of any personnel actions that might affect the outcome of
a FECA claim. OWCP has neither the resources nor the expertise to
determine whether reductions-in-force are ``officially mandated''
(presumably, this phrase is equivalent to ``duly authorized''), and
must leave disputes about individual reductions-in-force to be resolved
in the proper forum. The suggested change would therefore not be
workable, nor would it enhance either the sense of this section or its
legal force.
Two of the same organizations suggested that OWCP simply assume
that eliminated light-duty positions have been abolished because of
employment-related disability. It is not OWCP's practice to make
assumptions where the facts can be determined, and OWCP sees no merit
in this idea.
Another labor organization objected to the underlying premise in
Sec. 10.509(a) that a reduction-in-force will not lead to a compensable
recurrence of disability. However, as noted above, the ECAB has
consistently ruled that employees who lose their light-duty positions
in a reduction-in-force do not sustain compensable recurrences of
disability.
A labor organization suggested that this section be modified so
that employers would be prohibited from eliminating only light-duty
positions. This is a personnel matter, and one which is outside the
scope of these regulations.
One labor organization argued that a partially disabled employee
who loses his or her Federal job will not be able to find another job
in private industry and should therefore be entitled to receive
compensation. Because this statement is hypothetical, OWCP cannot
address it. An employee whose light-duty job is withdrawn, except in
reduction-in-force situations, will in fact be entitled to claim
compensation for a recurrence of disability.
An agency noted that employees may be performing light-duty work in
classified positions while they are still receiving ``retained pay''
based on their date-of-injury positions and questioned whether OWCP
should use their actual earnings in such circumstances to determine
their wage-earning capacities consistent with the language found in
Sec. 10.509(a). However, using an employee's actual earnings while he
or she is receiving ``retained pay'' has been approved by the ECAB in
cases such as Domenick Pezzetti, 45 ECAB 787, petition for recon.
denied, Docket No. 92-2037 (issued November 2, 1994), which held that
the use of actual earnings under these circumstances to determine an
employee's wage-earning capacity was consistent with section 8115(a) of
the FECA.
The same agency also suggested that Sec. 10.509(b) specifically
note that an injured employee must ``encumber'' a classified light-duty
position before OWCP will use the actual earnings in such a position to
determine the wage-earning capacity under Sec. 10.509(a). This
suggestion reflects OWCP's existing policy in this area, and
Sec. 10.509(b) is revised accordingly.
A labor organization raised a concern that pursuant to
Sec. 10.509(b), OWCP might be tempted to use an ``odd-lot'' or
``sheltered'' position created specifically for a particular injured
employee to determine that employee's wage-earning capacity. However,
the ECAB has long rejected use of such a position, and nothing in this
subsection is meant to thwart this legal prohibition, which is widely
recognized in the field of workers' compensation law. If a job is
withdrawn after OWCP has determined the employee's loss of wage-earning
capacity, and the job was in fact an odd-lot or sheltered job, the
employee may file a claim for a recurrence of disability.
[[Page 65299]]
Finally, one commenter disagreed with the use of the term ``light-
duty'' in this section and argued that it should be replaced with a
term such as ``modified'' or ``restricted duty'' that would be based
solely on medical restrictions. However, the term ``light-duty'' has a
very specific meaning in Sec. 10.509(b) that is obviously based on a
number of medical and factual circumstances, and for these reasons OWCP
does not accept the argument that it be replaced with a purely medical
term.
Section 10.515(a)
A labor organization suggested that the word ``total'' be replaced
by ``his or her compensable'' disability. In fact, neither the original
phrase nor the proposed revision adds value to this paragraph, and the
phrase ``because total disability has ceased'' is therefore being
removed.
Section 10.515(b)
An agency suggested that this section be reworded to require
claimants to seek suitable employment, as well as to accept it. This
change, which is consistent with section 8106(c), has been made.
A labor organization suggested that this paragraph be expanded to
include the effects of an ``other acceptable medical condition'' as
well as the effects of the work-related injury. The suggested wording
both obscures the meaning of the paragraph and introduces extraneous
concerns, and no change is being made to it.
Section 10.515(c) and (d)
An agency noted that employees do not always advise attending
physicians that work may be available for them, and asks whether the
agency can contact the physician when there is a written job offer or
the employee's work limitations can be accommodated. Section 10.331(b)
allows employers to contact physicians to obtain descriptions of work
limitations on Form CA-17.
Section 10.516
Two agencies argued that the 30-day period provided by OWCP for an
employee to accept or decline an offered position is too long. One
suggested that this period be shortened to five days, while the other
suggested that it be shortened to 15 days.
Where a job is to be accepted or declined, and termination of
benefits may be at issue, OWCP does not consider a period of less than
30 days sufficient, across the board, for response from employees. For
instance, if the employee objects to the position offered for medical
reasons and thus needs to obtain a medical report, it is unreasonable
to expect that the physician will conform to a five or even a 15-day
deadline to prepare and submit a medical report.
Although the circumstances in a particular case may not in fact
warrant a 30-day period for response, clear and consistent procedures
are especially important in this area of the program's operations,
given the need to provide due process at every step. For these reasons,
OWCP does not believe a change to this paragraph is warranted.
Sections 10.518 and 10.519
While one Federal agency strongly supported the inclusion of
nursing services as one of the many vocational rehabilitation services
that OWCP may provide to injured employees, one labor organization
noted that such inclusion would change nursing services from a
voluntary choice to an obligatory course that OWCP could ``direct'' an
employee to undergo, and argued that OWCP should not make this change.
It stated that such an approach would be ``deeply unproductive''
without giving any reason for this belief. The organization also
posited that the mandatory aspect was proposed so that the costs
associated with OWCP nurses would be shifted to the employing agencies,
but in fact, the costs are already charged back to the agencies.
In addition, the organization argued that since section 8104(a) of
the FECA only allows OWCP to direct ``permanently disabled'' employees
to undergo vocational rehabilitation, OWCP could not impose the
sanctions described in Sec. 10.519 (which are derived from section
8113(b) against employees who refuse to cooperate with OWCP nurses
unless they were ``permanently disabled.''
Pursuant to section 8104(a), OWCP has the discretionary authority
to ``direct a permanently disabled individual whose disability is
compensable'' to undergo vocational rehabilitation. The ECAB has
repeatedly held that a ``permanently disabled individual'' refers to an
employee with a loss of wage-earning capacity, since the intent of
Congress in enacting section 8104(a) was to provide disabled employees
with the services necessary to overcome or lessen their disability.
See, e.g., Wayne E. Vincent, 6 ECAB 1024 (1954); Joseph C. Reuter, 11
ECAB 296 (1960); Gary L. Loser, 38 ECAB 673 (1987).
Consistent with these rulings, OWCP's policy is to presume that an
injured employee who has a loss of wage-earning capacity is
``permanently disabled,'' for purposes of Sec. 10.519 only, unless and
until the employee proves that the disability is not permanent, and to
intervene in the early stages of disability cases to help employees
return to some type of work as soon as possible. Since nursing services
have been shown to be one of the most effective vocational
rehabilitation services that can be provided to employees in the weeks
immediately following their injuries, Sec. 10.519 allows OWCP to impose
sanctions against employees who refuse to cooperate with its nurses.
However, in light of the apparent confusion regarding the scope of this
regulation, Sec. 10.519 is revised to better describe OWCP's policy.
Section 10.520
A labor organization asked that this section be reworded to state
that positions must be available within the employee's commuting area.
OWCP believes that this point is sufficiently addressed in the response
to the comments to Sec. 10.403 set out above.
Section 10.525(a)
Two agencies asked that this section include the authority for OWCP
to request copies of employees' tax returns, though neither agency
includes a reason for this request. The program occasionally finds it
necessary to request tax returns, for instance to verify self-
employment or to ensure that an employee has not earned income for a
lengthy period for which retroactive compensation is claimed. When
asked, employees have submitted the copies without protest. OWCP does
not believe that an addition of regulatory authority is necessary.
Section 10.526
One agency asked OWCP to clarify the language of this section
regarding the applicability and frequency of the intended reporting
requirement, while another agency noted the similarity of this section
to Sec. 10.525 and suggested simply combining the two sections. To
clarify Sec. 10.526 consistent with the first suggestion, the text of
this section has been modified to specifically state that this is a
periodic reporting requirement which applies to both partially and
totally disabled employees. However, the suggestion to combine
Secs. 10.525 and 10.526 is not adopted since the text of Sec. 10.526 is
intended to focus on volunteer activities, and keeping these sections
separate will further highlight this intentional distinction.
The second agency also suggested that this section include OWCP's
expectation that employees will report
[[Page 65300]]
any information which might reasonably affect their benefit levels. The
program believes that this last point is better left to procedural
guidance.
One labor organization argued that employees should not be required
to report volunteer activities because such activities may help them
cope with their disabilities. While agreeing that these activities may
be beneficial to an employee's self-esteem, OWCP is of the opinion that
they are also a useful indicator of an employee's ability to perform
some form of work and therefore should be reported.
Section 10.527
One agency suggested strengthening the wording of this section by
removing the words ``attempt to'' with respect to verifying employees
earnings. Those two words have been removed. Another agency stated that
this section should be reworded so as not to limit the kinds of
computer matches which may be performed with records of State agencies.
This suggestion is being adopted as well.
Section 10.540(b)
One labor organization suggested that the second sentence of
Sec. 10.540(b) be changed from ``a claim has been made for a specific
period of time'' to ``a claim has been approved for a specific period
of time * * *'' However, the recommended change would change the focus
of this portion of Sec. 10.540(b) from the reasonable expectation of
the beneficiary to a determination of OWCP, and would therefore be
inconsistent with the remainder of this subsection, which states that
OWCP will not provide written notice before it terminates compensation
``when the beneficiary has no reasonable basis to expect that payment
of compensation will continue.'' Therefore, the suggested change is not
made. However, two minor wording changes have been made to clarify the
meaning of two clauses in the third sentence.
Section 10.540(c)
A labor organization suggested wording changes that would, in
essence, provide employees who refuse to accept or perform suitable
work additional procedural safeguards that exceeded those described in
Sec. 10.516. However, the procedures in Sec. 10.516 are based on the
ECAB's decision in Maggie L. Moore, 42 ECAB 484 (1991), reaffirmed on
recon., 43 ECAB 818 (1992). OWCP sees no basis to add further
procedures in this area.
One agency was under the impression that this section, which states
(among other things) that OWCP will not provide written notice before
it terminates compensation based on a ``failure or refusal to either
continue performing suitable work or to accept an offer of suitable
work,'' was inconsistent with the notice provided in these situations
pursuant to Sec. 10.516. However, the two regulations are not
inconsistent since the notice provided under Sec. 10.516 informs the
employee of OWCP's determination that a particular position is
suitable, whereas the notice contemplated by Sec. 10.540 informs the
employee of the impending cessation of his or her compensation rather
than a finding on a preliminary issue such as suitability.
Therefore, for example, once an employee has received the notice
required by Sec. 10.516 and has refused an offer of suitable work, OWCP
will issue a decision terminating the employee's monetary benefits
without any prior written notice to that effect. The first sentence of
Sec. 10.540(c) is being amended to include the word ``terminated''
before ``suspended or forfeited'' to account for all of the possible
ways in which OWCP may end compensation payments.
Section 10.541(b)
An agency suggested that the word ``Substantial'' be inserted
before the word ``Evidence'' at the beginning of this section, which
addresses the kinds of evidence which will affect OWCP's proposed
action to reduce or terminate benefits. In practice, evaluations of
evidence received when pre-termination notice has been issued always
require judgment and discretion on the part of OWCP staff. This wording
change would have no effect of any significance on the meaning of this
subsection.
A labor organization suggested substituting ``finding and award
under 5 U.S.C. 8124'' for ``decision'', but here again, such a wording
change would have no apparent effect of any significance on the meaning
of this subsection.
Section 10.600
One agency proposed giving agencies the right to seek review of
decisions. Since proceedings under the FECA are non-adversarial, there
is no statutory basis for providing the agencies with the right to seek
review of benefit determinations.
Two employing agencies suggested that the phrase ``initial final
decision'' in the first sentence is confusing. OWCP concurs, and the
phrase has been changed to ``formal decision''.
Section 10.607
The existing rule, unchanged in the proposal, is that the claimant
has a right to reconsideration of any decision if requested within one
year of the date of the last merit decision. Three labor organizations
noted that the proposal does not reflect OWCP's practice of including
ECAB decisions among the ``merit decisions'' the date from which the
one year begins to run.
Any suggestion that OWCP should review or reconsider an ECAB
decision is inappropriate. OWCP and ECAB are separate and distinct
entities. The ECAB is the highest appellate authority under the FECA
and its decisions are binding on OWCP. Since OWCP has no authority to
review decisions of the ECAB, OWCP has interpreted its limitation
provision as liberally as possible, such that a merit decision of the
ECAB will renew the one-year time period within which a claimant may
request reconsideration before OWCP, with the date of the ECAB's merit
decision serving as the new starting point from which the one-year
period will run. OWCP will continue to do so, but because ECAB
decisions cannot be reviewed by anyone, including OWCP, the language in
this section has not been changed.
Section 10.609
One commenter suggested that the amount of time allowed for
employers to comment on the application for reconsideration be expanded
from 15 to 30 days, due to time constraints on the part of agency
staff. While such a change would lengthen a process which is already
time-consuming, OWCP recognizes that the 15-day period has been
problematical. Therefore, the period for commenting on the application
for reconsideration has been changed to 20 days in the final rule. This
commenter also advocated allowing employers to ``question'' claims
(presumably by requesting reconsideration). The FECA makes no provision
for appeal rights for employers.
Section 10.610
One employing agency suggested that this section include appeal
rights for employers. The FECA contains no provision for granting such
rights.
Section 10.615
One agency objected to the proposal that a hearing representative
may direct that the hearing be conducted by telephone or
teleconference. A labor organization said that this should be a
recommendation but not done at the hearing representative's option.
Neither
[[Page 65301]]
the agency nor the labor organization gives a basis for its objection.
OWCP believes that this option will allow it to better control an ever-
increasing workload and to provide hearings at an earlier time than it
otherwise could, without limiting claimants' rights in any way.
Sections 10.616 and 10.619
Several labor organizations objected to recognizing forms of date
marking other than postmarks. Since requests are being submitted
through carriers other than the Postal Service, and electronic
transmission is likely to become routine in the future, the text has
not been changed.
With respect to Sec. 10.616, one commenter noted that the claimant
could ask for a change to an oral hearing after the case was far along
in the written review process, thus undercutting efficiency and
allowing for purposeful delays. The point is well taken, and the time
frame for such requests has been shortened to 30 days after the Branch
of Hearings and Review acknowledges the request.
Sections 10.617 and 10.618
Several comments about time frames were received. One commenter
noted that the time frames set forth in Sec. 10.617(f) for submitting
evidence were confusing and potentially never-ending, because they
would allow new evidence to be submitted up to the date of the
decision, which in turn would require comments by the agency or the
employee, and so forth. The final rules have been changed to clarify
that evidence in cases where oral hearings are held is to be submitted
up to 30 days after the date on which the hearing is held (unless the
hearing representative specifically grants an extension of time).
Similarly, Sec. 10.618(a) has been changed to provide that OWCP will
designate a date by which evidence is to be submitted in reviews of the
written record.
Another commenter noted that the service provisions in
Sec. 10.618(b) represent a change from the current practice of having
the agency serve their comments directly on the claimant (or the
claimant's representative, if any) and provide OWCP with a
certification of service. That section has been slightly modified to
reflect this practice.
With respect to the agencies' comments that 15 days is not enough
time to adequately review and analyze the transcript (Sec. 10.617(e)),
OWCP recognizes that this time frame has been problematical and has
therefore extended the period for response to 20 days. For consistency,
the time frame for claimants to respond to agency comments has also
been changed to 20 days.
A labor organization suggested that the notice of hearing be mailed
60 days, rather than 30 days, before the date of the scheduled hearing.
The argument offered is that seven to 10 days can elapse between the
hearing representative's determination of the date of the hearing and
the employee's receipt of the notice. However, any increase in the
period of notice adds an increment of delay to a process which OWCP is
attempting to streamline. The program does not believe that this change
is necessary, and it has not been adopted.
Finally, one labor organization noted that language from the
statute (section 8124(b)(2)) which appears in the current rules (at
existing Sec. 10.133) should be included in Sec. 10.617. The phrase
``but may conduct the hearing in such a manner as to best ascertain the
rights of the claimant'' has been added to Sec. 10.617(c).
Section 10.621
One employing agency noted that the agency's role in
teleconferenced hearings and the number of representatives an agency
may send to the hearing needed to be clarified (another agency made the
latter point as well). Section 10.621 has been changed to allow more
than one representative, where appropriate. The comments also stated
that the agency and the claimant should each be given copies of the
other's comments, and both should have the same amount of time to
review and respond to transcripts and comments. The current practice of
sending agency comments to the claimant reflects the non-adversarial
nature of the FECA claims process, and the fact that the agency is not
a party to the claim. Because the agency is a source of information,
however, it is allowed limited participation, but expansion of that
role would not be appropriate.
Section 10.621(a)
One labor organization objected to the statement allowing hearing
representatives to ask employing agency representatives to testify, on
the basis that the employee cannot easily anticipate what issues the
hearing representative will raise and that employing agency
representatives, who are often compensation specialists, may confuse
employees with sophisticated arguments. The organization also argues
that active participation by the agency will compromise the non-
adversarial nature of the hearing process and hinder the ability of
claimants to present evidence. These arguments do not take into
consideration the role of the hearing representative, which is to
uphold the non-adversarial nature of the process and adjudicate the
issues based on the evidence. OWCP does not find these arguments
persuasive, and the language of this section has not been modified.
Section 10.622
The provision prohibiting cancellations of hearings drew
considerable criticism from four labor organizations and three
commenters, and support from one Federal agency. Most of the comments
suggested that the blanket prohibition against postponements was too
harsh and suggested that postponements be allowed under ``exceptional
circumstances.''
OWCP is concerned about providing any opportunity to further delay
the hearing process or to add yet another issue for potential review.
Nevertheless, it is recognized that very narrow circumstances exist
which are truly out of the control of the claimant and would justify a
postponement. Accordingly, Sec. 10.622(b) has been changed to allow a
postponement for exceptional circumstances, defined in Sec. 10.622(c)
as medically documented non-elective hospitalization of the claimant,
or death of the claimant's parent, spouse or child.
One labor organization commented on the period for rescheduling a
hearing. However, nothing in this section of the regulations refers to
time periods.
The first sentence in Sec. 10.622(b) has been slightly reworded and
divided into two sentences for clarity.
Section 10.701
A labor organization questioned whether representational activity
undertaken in connection with a claim under the FECA is exempt from the
prohibitions set forth at 18 U.S.C. 205. The organization asserted that
``the adjudication of a claim under the FECA is an administrative
proceeding and thereby such representation meets the exceptions noted
in the applicable law''. OWCP believes that the organization was
referring to section 205(d), which permits a Federal employee to
represent another employee in ``disciplinary, loyalty, or other
personnel administration proceedings'' so long as the person acts
without compensation. Based on OWCP's reading of Informal Advisory
Letter 85 x 1, issued January 7, 1995, by the Office of Government
Ethics (OGE) (representation of persons seeking to establish
entitlement to benefits under laws administered by the
[[Page 65302]]
Veterans Administration is not covered by section 205(d)), the program
is of the opinion that proceedings under the FECA do not come within
the exception. For these reasons, no change will be made to
Sec. 10.701.
Section 10.701(b)
A labor organization noted that the phrase ``conflict with any
other provision of law'' is redundant, given that it appears in the
first paragraph of this section. Therefore, the phrase has been removed
from paragraph (b).
Section 10.703
One commenter objected to assigning the task of approving fee
petitions to the body before which the services for which fees are
charged were performed. However, the office before which the work was
performed is in the best position to evaluate the usefulness of
services, the nature and complexity of the claim and the other criteria
set out in this section. Thus, the text remains unchanged in this
regard.
Section 10.705
One Federal agency asked whether claims examiners exercise any
discretion in requiring an employee to prosecute an action against a
third party in regard to minor injury claims, noting that Sec. 10.709
references the procedures under which a FECA beneficiary who has been
directed to pursue an action against a third party can be released from
that obligation. Section 10.705(a) provides that an injured claimant
``can be required to take action'' against a third party responsible
for an injury covered under the FECA. It does, however, allow OWCP to
exercise discretion in determining whether to require a FECA
beneficiary to take action against a third party.
Section 10.711
One Federal agency pointed out that ``Subtotal B'' in the example
should be ``72,000'' and not ``-72,000'', and that ``Disbursement'' in
line 4 of the example should be ``Disbursements.'' These observations
are correct, and Sec. 10.711 is revised accordingly.
Section 10.714
One commenter objected to the inclusion of costs for both second
opinion medical examinations and referee medical examinations within
the refundable disbursements used to calculate any required refund or
any credit against future benefits. The objection is based upon the
fact that the damages requested from a third party in any litigation
are not based upon those expenditures. Inclusion of such costs within
the refundable disbursements used to calculate both required refund and
credit against future benefits is a longstanding practice based upon
the fact that such costs are paid from the Employees' Compensation Fund
and contribute to the ability of OWCP to ``furnish to an employee who
is injured while in the performance of duty, the services, appliances,
and supplies prescribed or recommended by a qualified physician, which
the Secretary of Labor considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount
of the monthly compensation'' as set forth in section 8103(a) of the
FECA.
Furthermore, the Supreme Court in United States v. Lorrenzetti, 467
U.S. 167 (1984), has specifically rejected any attempt to limit the
calculation of either the refund required to be paid by FECA
beneficiaries or any credit against future benefits based upon whether
or not the expenditures at issue were within the elements of damages
for which recovery was sought against a third party in the litigation
that resulted in a recovery subject to section 8132. Accordingly, the
requested change to this section is not made.
Section 10.717
One commenter disagreed with the statement that ``an injury caused
by medical malpractice in treating an injury covered by the FECA is
also an injury covered under the FECA,'' and argued that such coverage
should not result from the medical malpractice of a private physician.
However, since the statement in question is based on ECAB cases where
coverage has been found under these circumstances, such as in Bonnie D.
Jefferson, 34 ECAB 1426 (1983), the suggested modification of
Sec. 10.717 would be directly contrary to the ECAB's interpretation of
the FECA, and it is therefore considered unwarranted.
Sections 10.730 and 10.731
An agency objected to the elimination of a number of redundant
provisions that involved the Peace Corps and stated that without their
inclusion in these regulations, it would not be able to effectively
administer the workers' compensation claims of its personnel. However,
the retention of the provisions in question would not be consistent
with OWCP's efforts to streamline its regulations and would not provide
any significant assistance with respect to this class of claims since
the eliminated provisions merely repeat statutory language without
adding anything. The suggested changes to this section are therefore
not adopted.
Section 10.800
One agency recommended that OWCP expand the list of issues
addressed by medical records to include ``disability.'' The recommended
change would be consistent with Sec. 10.330(j), which states that a
medical report from an attending physician must address ``the extent of
disability,'' and therefore Sec. 10.800 is revised to reflect this
suggestion.
Section 10.801
One agency supported the changes to OWCP's fee schedule, but asked
how the requirement to use the specific billing forms listed in
Sec. 10.801 would be communicated to providers and employees. These
regulations themselves are the primary vehicle for informing providers
and employees of OWCP's billing requirements, which will also be
communicated via the Internet (from which copies of the forms can be
downloaded) and through routine contacts with OWCP claims staff and
bill processing units in the various district offices across the
country.
Section 10.802
One agency asked if there were any consequences for providers who
consistently refused to reimburse employees for amounts charged in
excess of the fee schedule. Since the inception of the fee schedule in
1986, OWCP has specified such consequences, and Sec. 10.815(e) of these
regulations states that providers may be excluded from participating in
the FECA program if they knowingly fail to reimburse employees for
amounts charged in excess of the fee schedule. Another agency thought
that allowing OWCP to consider reimbursing an employee for the amount
in excess of the fee schedule in Sec. 10.802(g) contravened the fee
schedule and would lead to an undesirable increase in agency chargeback
costs. As noted above in response to similar comments regarding
Sec. 10.337, subsections (e), (f), and (g) of Sec. 10.802 have been
modified consistent with the changes to Sec. 10.337.
Section 10.805
One agency asked if some providers might be exempt from the OWCP
fee schedule. In Sec. 10.805(b) and (c), OWCP notes that its fee
schedule does not currently cover services provided in nursing homes,
nor does it cover 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.
[[Page 65303]]
Another agency disagreed with the fact that the fee schedule did
not apply to Government medical facilities, since this meant that
agencies would pay more if they encouraged their employees to seek
treatment for employment-related injuries or illnesses at such
facilities. However, this agency did not seem to be aware that pursuant
to section 8103(a), employees have the right to make an initial
selection of a physician to provide medical treatment, and would
presumably not choose to be treated in a Government medical facility if
other sources were available. Furthermore, there seems to be little
rationale for applying OWCP's fee schedule to these facilities since
they are, to a large extent, designed to provide specific types of
medical services to rather limited groups of patients and are not
currently operated under any recognizable billing system.
Finally, one commenter disagreed with the development and
application of OWCP's fee schedule. Referencing a February 1994 article
in the Journal of Occupational Medicine, this commenter alleged that
using the schedule would cause providers to choose not to treat injured
Federal employees, thus resulting in a diminished quality of care.
OWCP's medical fee schedule has been in use since 1986 and is currently
based on the relative value scale (RVS) used by the Health Care
Financing Administration (HCFA), which includes geographic index
factors. These data were developed by HCFA through studies and
consultations with national physicians' groups and others. They are
updated yearly through the regulatory process. While OWCP has
incorporated the HCFA RVS in its medical fee schedule, the conversion
factors that translate the RVS into maximum dollar amounts are based on
OWCP program data, data from other Federal programs, reimbursements
under State workers' compensation programs, and common billing data.
The article referenced by the commenter discusses the comparative
cost savings of a corporate medical department versus outside services
and therefore has no relevance to the program administered by OWCP
given its national scope and the restrictions imposed by the physician
selection provision of section 8103(a).
In the years since 1986, OWCP has not received any evidence that
the fee schedule has jeopardized the quality of care provided injured
employees, and the program only rarely receives a complaint about the
maxima allowable that is not satisfactorily resolved. Therefore, no
changes to Sec. 10.805 will be made.
Section 10.809
One agency recommended that OWCP reimburse employees only for
prescription drugs that they purchase for employment-related injuries
and illnesses at the lower of either the fee schedule or the employee's
individual health insurance plan charges. As already provided in
Sec. 10.809, OWCP will not reimburse an employee for an amount that
exceeds the price he or she actually paid, nor will it reimburse an
employee for an amount that exceeds the fee schedule. However, further
limitations of the sort recommended would not be feasible due to the
wide variation in health insurance plan charges and the fact that most
plans do not cover prescription drugs needed for employment-related
injuries and illnesses.
One labor organization noted that some small pharmacies lack the
means to submit bills electronically to OWCP or to wait for the
assignment of a claim number before submitting bills for payment by
OWCP. However, there is no requirement that pharmacies bill OWCP
electronically in these regulations, nor is there a likelihood that a
problem involving claim numbers will occur since these numbers are
currently being assigned in an expeditious manner.
The same labor organization asked that this section be amended to
provide that pharmacies be notified of the requirement to refund any
charges in excess of the fee schedule when employees are only partially
reimbursed for prescription drugs. However, Sec. 10.802(e) already
provides for this notice to pharmacies and repeating this provision in
Sec. 10.809 is seen as unnecessary.
Another labor organization wanted OWCP to give employees notice of
the fee schedule and an explanation of how it works, presumably in
addition to the legal notice of these matters provided by the
publication of the regulations in the Federal Register. However,
additional notice of the sort requested would not be practical and is
not seen as necessary, since current beneficiaries will be informed of
these matters as part of the routine administration of their claims by
OWCP. Therefore, the requested changes to Sec. 10.809 will not be made.
Section 10.810
As with Sec. 10.809, one labor organization wanted OWCP to notify
employees of the fee schedule for inpatient medical services in
Sec. 10.810 and explain how it works, in addition to the legal notice
of these matters provided by the publication of the regulations in the
Federal Register. However, additional notice of the sort requested
would not be practical and is not seen as necessary, since current
beneficiaries will be informed of these matters as part of the routine
administration of their claims by OWCP.
One commenter criticized the decision to use the HCFA Prospective
Payment System (PPS) using Diagnostic Related Groups (DRGs) as the
foundation of OWCP's own PPS in Sec. 10.810. However, this decision was
based on research that explored available options and a study of FECA
inpatient bills which revealed that the HCFA PPS using DRGs is well-
suited to OWCP's efforts to monitor and control its inpatient costs.
Accordingly, the requested changes to Sec. 10.810 have not been
adopted.
Section 10.816
One commenter suggested that a new paragraph (c) be added to
Sec. 10.816 requiring that the ``partner or group'' of a physician
automatically excluded from the FECA program under Sec. 10.816(a) also
be excluded from participating in the program. However, the situations
that would lead OWCP to automatically exclude a physician under
Sec. 10.816(a) would be specific to that physician, and therefore they
would not form a proper legal basis for automatically excluding that
physician's ``partner or group'' under this regulation. Therefore, the
suggested addition of a new subsection is not adopted.
Leave Buy-Back Provision
Two employing agencies and two labor organizations objected to the
removal of the leave buy-back provision found at current Sec. 10.310.
Most important among the reasons for this removal, which are stated in
the Preamble to the Proposed Rule, is that leave buy-back is neither
authorized nor required by the FECA, nor is it controlled by OWCP.
The commenters argued that agencies would not have the authority to
convert periods of leave to LWOP without the equivalent of the current
Sec. 10.310, and that in remaining silent about this issue, OWCP is
abandoning its own procedures. It was also stated that compensation
would have to be paid directly to employees, without reimbursement to
agencies, and that employees would have to pay the entire cost of leave
to agencies before leave restoration, instead of compensation due being
paid to agencies. Finally, the two agencies stated that the current
procedure, where OWCP pays the
[[Page 65304]]
agency directly, aids in debt collection, and that removal of the leave
buy-back provision from OWCP's regulations would add work for agencies.
As an ancillary issue, several agencies asked that Forms CA-7a and
CA-7b be added to the list in Sec. 10.7(a).
The reasons for removal of the leave buy-back provision have not
changed. However, since OWCP does in fact have a procedure for paying
compensation when leave is restorable, a brief mention of this process
in this rule is considered warranted, and it is being added as new
Sec. 10.425. For similar reasons, Forms CA-7a and CA-7b are being added
to the list in Sec. 10.7(a). Current practice is not altered.
Miscellaneous Comments
OWCP also received comments and suggestions which did not pertain
directly to the proposed regulations. Many would require legislative
amendments before they could be implemented, or concern procedural
matters. Because they are not germane to this final rule, no further
comments are appropriate.
One commenter addressed the section about Executive Order 12866,
questioning whether compliance will be possible with existing
personnel. To the extent that the comment refers to the staff needed by
pharmacies to comply with the fee schedule, OWCP does not agree since
similar fee schedules are already widely used. If the comment refers to
federal personnel who administer the FECA, OWCP also disagrees but, in
any event, the Executive Order does not concern the impact of
regulations on federal agencies.
The commenter also stated that the proposed pharmacy fee schedule
will adversely affect claimants since the most advanced drugs for
musculoskeletal disorders are very expensive. However, the providers
will be required to accept the amount offered under the fee schedule,
and if they do not, the regulations contain a provision for
reimbursement to the claimant of the difference between the amount
charged and the amount allowed by the fee schedule (see the comments
about Sec. 10.337 above).
This commenter also addressed the section about the Unfunded
Mandates Reform Act, referring to the above-noted proposal for
establishing ``centers of excellence'' as well as to occupational
health personnel matters. The first concern is misplaced (unfunded
mandates apply to Federal requirements imposing a burden on States).
The second concern is not germane to the regulations at hand.
Finally, with regard to the section about the Paperwork Reduction
Act, this commenter made a general recommendation that existing forms
be eliminated and consolidated. Since no specific forms are named or
specific criticisms offered, OWCP is unable to address this comment.
Publication in Final Re Non-Substantive Changes
The Department of Labor has determined, pursuant to 5 U.S.C.
553(b)(B), that good cause exists for waiving the public comment on
this rule with respect to the following changes:
(a) Typographical errors.
(b) Other minor wording changes and clarifications which do not
affect the substance of the rules.
Executive Order 12866
This final rule constitutes a ``significant'' rule within the
meaning of Executive Order 12866. The Department believes, however,
that this rule will not have a significant economic impact on the
economy, or any person or organization subject to the proposed changes.
The changes will have little or no effect on the level of benefits paid
(which in any case involve payments almost exclusively to Federal
employees from funds appropriated by Congress); nor will there be a
significant economic impact upon the hospitals and pharmacies which,
for the first time, will be subject to the fee schedules established by
these rules. The total dollar amount paid for inpatient hospital
services in fiscal year 1996 was $81,955,562.00, and subjecting these
charges to the DRG schedule is expected to result in a 20 percent
decrease in the amount paid, or about $16.4 million. The total dollar
amount paid for pharmacy costs in fiscal year 1996 was $31.9 million,
and subjecting these charges to the fee schedule is expected to result
in a 10 to 15 percent decrease in the amount paid, or about $3-4.5
million. Insofar as the new rules make it easier to seek benefits under
the FECA and streamline the administration of the program, they would
decrease administrative costs. These changes have been reviewed by the
Office of Management and Budget for consistency with the President's
priorities and the principles set forth in Executive Order 12866.
Unfunded Mandates Reform Act and Federalism Executive Order
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as E.O. 12875, this rule does not include any Federal mandate that may
result in increased expenditures by State, local and tribal
Governments, or increased expenditures by the private sector of more
than $100 million.
Paperwork Reduction Act
The new collection of information contained in this rulemaking has
been approved by the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act of 1995. No person is
required to respond to a collection of information request unless the
collection of information displays a valid OMB control number.
The new information collection requirements contained in this
proposed rule are set forth in Secs. 10.801 and 10.802, and they relate
to information required to be submitted by pharmacies and hospitals
covering certain inpatient bills. The Department has adopted a new form
(Universal Pharmacy Billing Form) which will be used by pharmacies in
submitting claims for payment. Another form (the claimant reimbursement
form) will be used by claimants seeking reimbursement for medical
expenses for which they have paid the providers directly. The public
reporting burden for these collections of information is estimated to
average as follows: Universal Pharmacy Billing Form--It will take five
(5) minutes to complete the form, including time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed and completing and reviewing the collection
of information; Claimant Reimbursement Form--It will take an average of
ten (10) minutes to complete this form, including reviewing
instructions, searching for existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Type of Review: New Collection.
Agency: Employment Standards Administration.
Title: Claimant Medical Reimbursement Form (CA-915).
OMB Number: 1215-0193.
Affected Public: Individuals or households, Federal Government.
Total Respondents: 40,500.
Frequency: On occasion.
Total Responses: 40,500.
Average Time per Response: 10 minutes.
Total Hours: 6,723.
Total Burden Cost (capital/startup): 0.
Total Burden Cost (operating/maintenance): 0.
Type of Review: New Collection.
Agency: Employment Standards Administration.
Title: NCPDP Universal Pharmacy Billing Form (79-1A) .
[[Page 65305]]
OMB Number: 1215-0194.
Affected Public: Businesses or other for-profit; Not-for-profit
Institutions; Individuals or households; Federal Government; State,
Local or Tribal Government.
Total Respondents: 406,198.
Frequency: On occasion.
Total Responses: 406,198.
Average Time per Response: 5 minutes.
Total Hours: 33,714.
Total Burden Cost (capital/startup): 0.
Total Burden Cost (operating/maintenance): 0.
Regulatory Flexibility Act
The Department believes that the rule will have ``no significant
economic impact upon a substantial number of small entities'' within
the meaning of section 3(a) of the Regulatory Flexibility Act Pub. L.
96-354, 91 Stat. 1164 (5 U.S.C. 605(b)). The provision of the final
rules extending cost control measures to hospital inpatient services
and pharmacies is the only provision of the regulations which may have
a monetary effect on small businesses. That effect will not be
significant for a substantial number of those businesses, however, for
no one business bills a significant amount to OWCP for FECA-related
services, and the effect on those bills which are submitted, while a
worthwhile savings for the Government in the aggregate, will be not be
significant for individual businesses affected.
The two new cost containment provisions are: (1) A set schedule for
payment of pharmacy bills; and (2) a prospective payment system for
hospital inpatient services. The two methodologies are fully explained
in the text of the Preamble to the Proposed Rule, including the fact
that the use of Diagnostic Related Groups (DRGs) for setting payment
for inpatient hospital charges essentially is an adaptation of a system
used by the Health Care Finance Agency (HCFA) in payment of Medicare
bills. The use of Average Wholesale Prices (AWP) in setting the maximum
reimbursable amount for pharmacy bills is also commonplace in the
industry.
The method selected by OWCP is therefore one which contains
efficiencies both for the Government and providers. The Government
benefits because OWCP did not develop a new system, but rather
minimized the use of resources by adopting existing and well-recognized
systems already in place. The providers benefit because submitting a
bill to OWCP and receiving payment will be almost the same process as
submitting it to Medicare, a program with which hospitals are already
familiar and have in place for billing, so they will not have to learn
a new process and the FECA bills will not represent an unnecessary
administrative cost because the FECA bill process will not be
essentially distinguished from that for Medicare. Similarly, the
pharmacies are used to billing through clearing houses and having
charges subject to limits by private insurers. By adopting the uniform
billing statement and a familiar cost control methodology, OWCP has
kept close to the environment with which the pharmacies are already
familiar. The methods chosen, therefore, represent a familiar
environment to the providers.
The costs savings resulting from the implementation of these cost
containment methods will have no significant effect on any individual
business. First, the need for cost containment in the FECA program is
self-evident and these methods are already used by Medicare, CHAMPUS
and the Department of Veterans Affairs, among Government entities, and
for the private insurance carriers which cover Federal employees as
part of the Federal employees' health benefit insurance programs. The
costs to providers whose charges may be reduced are relatively small,
both in incremental and in actual terms.
Incrementally, FECA bills simply do not represent a large share of
any one provider's total business. Since Federal employees are spread
throughout the United States and this system covers only those Federal
employees who are injured on the job and require either prescription
drugs or inpatient hospital care (a tiny subset of all employees), the
number of bills submitted by any one provider which may be subject to
these provisions is likely to be very small.
Second, in actual terms, the amount by which these bills might be
reduced will not have a significant impact on any business. In fiscal
year (FY) 1998, the program paid $100.1 million dollars on about 13,150
bills received for inpatient hospital services (an average charge of
$7,600.00 per stay). The total number of hospitals on the program's
provider files is about 5,000, for an average patient load of slightly
over three FECA-claimant patients per hospital. If we assume that no
hospital had more than three patients, then the average annual billings
subject to these rules for any hospital would be about $22,800 (3 X
$7,600). As noted in the Preamble to the Proposed Rule, the DRG method
will reduce the $100.1 million by about 20 percent, or $20.2 million.
Thus, the average dollar amount of the reduction in bills submitted by
any one hospital resulting from these rules would be about $4,560.00.
A similarly small actual dollar reduction applies to pharmacy
charges. OWCP paid about $32,000,000 for pharmacy charges, although the
program cannot identify exactly what portion of this amount was paid to
institutions, since much of this dollar figure represents
reimbursements directly to claimants. OWCP cannot identify with
certainty the number of pharmacies who provided supplies, for the same
reason, but there are about 4,000 pharmacies in the program's provider
files. Similarly, OWCP cannot determine the exact number of bills paid,
since the program captures only those submitted by a provider for
direct payment and not those submitted by a claimant for reimbursement.
Assuming for purposes of this analysis that the reimbursements were
evenly divided among pharmacies already part of our provider files, we
divide 4,000 providers into the total number of dollars paid to get an
average annual aggregate of charges paid to a provider of about $8,000.
It is estimated that the schedule would result in an average reduction
of five percent in pharmacy charges; based on these figures, the
average pharmacy would see a reduction in the total amount received of
about $400.
These figures illustrate that the ``cost'' of these rules to any
one provider is negligible. On the other hand, OWCP will see
substantial aggregate cost savings as a result (estimated at
$18,000,000). These savings benefit OWCP (by strengthening the
integrity of the program), the employing agencies (which ultimately
foot the bill for FECA through the chargeback system), and taxpayer and
rate payers to whom the ultimate costs of the program are eventually
charged through appropriations.
The Assistant Secretary for Employment Standards has certified to
the Chief Counsel for Advocacy of the Small Business Administration
that these rules will 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.
Executive Order 13045 Protection of Children From Environmental,
Health Risks and Safety Risks
In accordance with Executive Order 13045, OWCP has evaluated the
environmental health and safety effects of the rule on children. The
agency has determined that the final rule will have no effect on
children.
[[Page 65306]]
Submission to Congress and the General Accounting Office
In accordance with the Small Business Regulatory Enforcement
Fairness Act, the Department will submit to each House of the Congress
and to the Comptroller General a report regarding the issuance of
today's final rule prior to the effective date set forth at the outset
of this notice. The report will note that this rule does not constitute
a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 20 CFR Parts 10 and 25
Administrative practices and procedures, Claims, Government
employees, Labor, Workers' compensation.
For reasons set forth in the preamble, 20 Chapter I is amended to
read as follows:
1. Part 10 is revised to read as follows:
PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES'
COMPENSATION ACT, AS AMENDED
Subpart A--General Provisions
Sec.
Introduction
10.0 What are the provisions of the FECA, in general?
10.1 What rules govern the administration of the FECA and this
chapter?
10.2 What do these regulations contain?
10.3 Have the collection of information requirements of this part
been approved by the Office of Management and Budget (OMB)?
Definitions and Forms
10.5 What definitions apply to these regulations?
10.6 What special statutory definitions apply to dependents and
survivors?
10.7 What forms are needed to process claims under the FECA?
Information in Program Records
10.10 Are all documents relating to claims filed under the FECA
considered confidential?
10.11 Who maintains custody and control of FECA records?
10.12 How may a FECA claimant or beneficiary obtain copies of
protected records?
10.13 What process is used by a person who wants to correct FECA-
related documents?
Rights and Penalties
10.15 May compensation rights be waived?
10.16 What criminal penalties may be imposed in connection with a
claim under the FECA?
10.17 Is a beneficiary who defrauds the Government in connection
with a claim for benefits still entitled to those benefits?
10.18 Can a beneficiary who is incarcerated based on a felony
conviction still receive benefits?
Subpart B--Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease and Death--Employee or
Survivor's Actions
10.100 How and when is a notice of traumatic injury filed?
10.101 How and when is a notice of occupational disease filed?
10.102 How and when is a claim for wage loss compensation filed?
10.103 How and when is a claim for permanent impairment filed?
10.104 How and when is a claim for recurrence filed?
10.105 How and when is a notice of death and claim for benefits
filed?
Notices and Claims for Injury, Disease and Death--Employer's Actions
10.110 What should the employer do when an employee files a notice
of traumatic injury or occupational disease?
10.111 What should the employer do when an employee files an
initial claim for compensation due to disability or permanent
impairment?
10.112 What should the employer do when an employee files a claim
for continuing compensation due to disability?
10.113 What should the employer do when an employee dies from a
work-related injury or disease?
Evidence and Burden of Proof
10.115 What evidence is needed to establish a claim?
10.116 What additional evidence is needed in cases based on
occupational disease?
10.117 What happens if, in any claim, the employer contests any of
the facts as stated by the claimant?
10.118 Does the employer participate in the claims process in any
other way?
10.119 What action will OWCP take with respect to information
submitted by the employer?
10.120 May a claimant submit additional evidence?
10.121 What happens if OWCP needs more evidence from the claimant?
Decisions on Entitlement to Benefits
10.125 How does OWCP determine entitlement to benefits?
10.126 What does the decision contain?
10.127 To whom is the decision sent?
Subpart C--Continuation of Pay
10.200 What is continuation of pay?
Eligibility for COP
10.205 What conditions must be met to receive COP?
10.206 May an employee who uses leave after an injury later decide
to use COP instead?
10.207 May an employee who returns to work, then stops work again
due to the effects of the injury, receive COP?
Responsibilities
10.210 What are the employee's responsibilities in COP cases?
10.211 What are the employer's responsibilities in COP cases?
Calculation of COP
10.215 How does OWCP compute the number of days of COP used?
10.216 How is the pay rate for COP calculated?
10.217 Is COP charged if the employee continues to work, but in a
different job that pays less?
Controversion and Termination of COP
10.220 When is an employer not required to pay COP?
10.221 How is a claim for COP controverted?
10.222 When may an employer terminate COP which has already begun?
10.223 Are there other circumstances under which OWCP will not
authorize payment of COP?
10.224 What happens if OWCP finds that the employee is not entitled
to COP after it has been paid?
Subpart D--Medical and Related Benefits
Emergency Medical Care
10.300 What are the basic rules for authorizing emergency medical
care?
10.301 May the physician designated on Form CA-16 refer the
employee to another medical specialist or medical facility?
10.302 Should the employer authorize medical care if he or she
doubts that the injury occurred, or that it is work-related?
10.303 Should the employer use a Form CA-16 to authorize medical
testing when an employee is exposed to a workplace hazard just once?
10.304 Are there any exceptions to these procedures for obtaining
emergency medical care?
Medical Treatment and Related Issues
10.310 What are the basic rules for obtaining medical care?
10.311 What are the special rules for the services of
chiropractors?
10.312 What are the special rules for the services of clinical
psychologists?
10.313 Will OWCP pay for preventive treatment?
10.314 Will OWCP pay for the services of an attendant?
10.315 Will OWCP pay for transportation to obtain medical
treatment?
10.316 After selecting a treating physician, may an employee choose
to be treated by another physician instead?
Directed Medical Examinations
10.320 Can OWCP require an employee to be examined by another
physician?
[[Page 65307]]
10.321 What happens if the opinion of the physician selected by
OWCP differs from the opinion of the physician selected by the
employee?
10.322 Who pays for second opinion and referee examinations?
10.323 What are the penalties for failing to report for or
obstructing a second opinion or referee examination?
10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
Medical Reports
10.330 What are the requirements for medical reports?
10.331 How and when should the medical report be submitted?
10.332 What additional medical information will OWCP require to
support continuing payment of benefits?
10.333 What additional medical information will OWCP require to
support a claim for a schedule award?
Medical Bills
10.335 How are medical bills submitted?
10.336 What are the time frames for submitting bills?
10.337 If OWCP reimburses an employee only partially for a medical
expense, must the provider refund the balance of the amount paid to
the employee?
Subpart E--Compensation and Related Benefits
Compensation for Disability and Impairment
10.400 What is total disability?
10.401 When and how is compensation for total disability paid?
10.402 What is partial disability?
10.403 When and how is compensation for partial disability paid?
10.404 When and how is compensation for a schedule impairment paid?
10.405 Who is considered a dependent in a claim based on disability
or impairment?
10.406 What are the maximum and minimum rates of compensation in
disability cases?
Compensation for Death
10.410 Who is entitled to compensation in case of death, and what
are the rates of compensation payable in death cases?
10.411 What are the maximum and minimum rates of compensation in
death cases?
10.412 Will OWCP pay the costs of burial and transportation of the
remains?
10.413 If a person dies while receiving a schedule award, to whom
is the balance of the schedule award payable?
10.414 What reports of dependents are needed in death cases?
10.415 What must a beneficiary do if the number of beneficiaries
decreases?
10.416 How does a change in the number of beneficiaries affect the
amount of compensation paid to the other beneficiaries?
10.417 What reports are needed when compensation payments continue
for children over age 18?
Adjustments to Compensation
10.420 How are cost-of-living adjustments applied?
10.421 May a beneficiary receive other kinds of payments from the
Federal Government concurrently with compensation?
10.422 May compensation payments be issued in a lump sum?
10.423 May compensation payments be assigned to, or attached by,
creditors?
10.424 May someone other than the beneficiary be designated to
receive compensation payments?
10.425 May compensation be claimed for periods of restorable leave?
Overpayments
10.430 How does OWCP notify an individual of a payment made?
10.431 What does OWCP do when an overpayment is identified?
10.432 How can an individual present evidence to OWCP in response
to a preliminary notice of an overpayment?
10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
10.434 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?
10.435 Is an individual responsible for an overpayment that
resulted from an error made by OWCP or another Government agency?
10.436 Under what circumstances would recovery of an overpayment
defeat the purpose of the FECA?
10.437 Under what circumstances would recovery of an overpayment be
against equity and good conscience?
10.438 Can OWCP require the individual who received the overpayment
to submit additional financial information?
10.439 What is addressed at a pre-recoupment hearing?
10.440 How does OWCP communicate its final decision concerning
recovery of an overpayment, and what appeal right accompanies it?
10.441 How are overpayments collected?
Subpart F--Continuing Benefits
Rules and Evidence
10.500 What are the basic rules for continuing receipt of
compensation benefits and return to work?
10.501 What medical evidence is necessary to support continuing
receipt of compensation benefits?
10.502 How does OWCP evaluate evidence in support of continuing
receipt of compensation benefits?
10.503 Under what circumstances may OWCP reduce or terminate
compensation benefits?
Return to Work--Employer's Responsibilities
10.505 What actions must the employer take?
10.506 May the employer monitor the employee's medical care?
10.507 How should the employer make an offer of suitable work?
10.508 May relocation expenses be paid for an employee who would
need to move to accept an offer of reemployment?
10.509 If an employee's light-duty job is eliminated due to
downsizing, what is the effect on compensation?
Return to Work--Employee's Responsibilities
10.515 What actions must the employee take with respect to
returning to work?
10.516 How will an employee know if OWCP considers a job to be
suitable?
10.517 What are the penalties for refusing to accept a suitable job
offer?
10.518 Does OWCP provide services to help employees return to work?
10.519 What action will OWCP take if an employee refuses to undergo
vocational rehabilitation?
10.520 How does OWCP determine compensation after an employee
completes a vocational rehabilitation program?
Reports of Earnings From Employment and Self-Employment
10.525 What information must the employee report?
10.526 Must the employee report volunteer activities?
10.527 Does OWCP verify reports of earnings?
10.528 What action will OWCP take if the employee fails to file a
report of activity indicating an ability to work?
10.529 What action will OWCP take if the employee files an
incomplete report?
Reports of Dependents
10.535 How are dependents defined, and what information must the
employee report?
10.536 What is the penalty for failing to submit a report of
dependents?
10.537 What reports are needed when compensation payments continue
for children over age 18?
Reduction and Termination of Compensation
10.540 When and how is compensation reduced or terminated?
10.541 What action will OWCP take after issuing written notice of
its intention to reduce or terminate compensation?
Subpart G--Appeals Process
10.600 How can final decisions of OWCP be reviewed?
Reconsiderations and Reviews by the Director
10.605 What is reconsideration?
10.606 How does a claimant request reconsideration?
10.607 What is the time limit for requesting reconsideration?
10.608 How does OWCP decide whether to grant or deny the request
for reconsideration?
10.609 How does OWCP decide whether new evidence requires
modification of the prior decision?
10.610 What is a review by the Director?
[[Page 65308]]
Hearings
10.615 What is a hearing?
10.616 How does a claimant obtain a hearing?
10.617 How is an oral hearing conducted?
10.618 How is a review of the written record conducted?
10.619 May subpoenas be issued for witnesses and documents?
10.62 Who pays the costs associated with subpoenas?
10.621 What is the employer's role when an oral hearing has been
requested?
10.622 May a claimant withdraw a request for or postpone a hearing?
Reviews by the Employees' Compensation Appeals Board (ECAB)
10.625 What kinds of decisions may be appealed?
10.626 Who has jurisdiction of cases on appeal to the ECAB?
Subpart H--Special Provisions
Representation
10.70 May a claimant designate a representative?
10.701 Who may serve as a representative?
10.702 How are fees for services paid?
10.703 How are fee applications approved?
Third Party Liability
10.705 When must an employee or other FECA beneficiary take action
against a third party?
10.706 How will a beneficiary know if OWCP or SOL has determined
that action against a third party is required?
10.707 What must a FECA beneficiary who is required to take action
against a third party do to satisfy the requirement that the claim
be ``prosecuted''?
10.708 Can a FECA beneficiary who refuses to comply with a request
to assign a claim to the United States or to prosecute the claim in
his or her own name be penalized?
10.709 What happens if a beneficiary directed by OWCP or SOL to
take action against a third party does not believe that a claim can
be successfully prosecuted at a reasonable cost?
10.71 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which benefits
are payable under the FECA be reported to OWCP or SOL?
10.711 How much of any settlement or judgment must be paid to the
United States?
10.712 What amounts are included in the gross recovery?
10.713 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 gross recovery?
10.714 What amounts are included in the refundable disbursements?
10.715 Is a beneficiary required to pay interest on the amount of
the refund due to the United States?
10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under
the FECA?
10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by
the FECA a gross recovery that must be reported to OWCP or SOL?
10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that
must be reported to OWCP or SOL?
10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on
a single FECA claim be attributed to different conditions for
purposes of calculating the refund or credit owed to the United
States?
Federal Grand and Petit Jurors
10.725 When is a Federal grand or petit juror covered under the
FECA?
10.726 When does a juror's entitlement to disability compensation
begin?
10.727 What is the pay rate of jurors for compensation purposes?
Peace Corps Volunteers
10.73 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the
United States?
10.731 What is the pay rate of Peace Corps volunteers and volunteer
leaders for compensation purposes?
Non-Federal Law Enforcement Officers
10.735 When is a non-Federal law enforcement officer (LEO) covered
under the FECA?
10.736 What are the time limits for filing a LEO claim?
10.737 How is a LEO claim filed, and who can file a LEO claim?
10.738 Under what circumstances are benefits payable in LEO claims?
10.739 What kind of objective evidence of a potential Federal crime
must exist for coverage to be extended?
10.740 In what situations will OWCP automatically presume that a
law enforcement officer is covered by the FECA?
10.741 How are benefits calculated in LEO claims?
Subpart I--Information for Medical Providers
Medical Records and Bills
10.800 What kind of medical records must providers keep?
10.801 How are medical bills to be submitted?
10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
10.803 What are the time limitations on OWCP's payment of bills?
Medical Fee Schedule
10.805 What services are covered by the OWCP fee schedule?
10.806 How are the maximum fees defined?
10.807 How are payments for particular services calculated?
10.808 Does the fee schedule apply to every kind of procedure?
10.809 How are payments for medicinal drugs determined?
10.810 How are payments for inpatient medical services determined?
10.811 When and how are fees reduced?
10.812 If OWCP reduces a fee, may a provider request
reconsideration of the reduction?
10.813 If OWCP reduces a fee, may a provider bill the claimant for
the balance?
Exclusion of Providers
10.815 What are the grounds for excluding a provider from payment
under the FECA?
10.816 What will cause OWCP to automatically exclude a physician or
other provider of medical services and supplies?
10.817 When are OWCP's exclusion procedures initiated?
10.818 How is a provider notified of OWCP's intent to exclude him
or her?
10.819 What requirements must the provider's reply and OWCP's
decision meet?
10.820 How can an excluded provider request a hearing?
10.821 How are hearings assigned and scheduled?
10.822 How are subpoenas or advisory opinions obtained?
10.823 How will the administrative law judge conduct the hearing
and issue the recommended decision?
10.824 How can a party request review by the Director of the
administrative law judge's recommended decision?
10.825 What are the effects of exclusion?
10.826 How can an excluded provider be reinstated?
Authority: 5 U.S.C. 301, 8103, 8145 and 8149; 31 U.S.C. 3716 and
3717; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263;
Secretary's Order 5-96, 62 FR 107.
Subpart A--General Provisions
Introduction
Sec. 10.0 What are the provisions of the FECA, in general?
The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C.
8101 et seq.) provides for the payment of workers' compensation
benefits to civilian officers and employees of all branches of the
Government of the United States. The regulations in this part describe
the rules for filing, processing, and paying claims for benefits under
the FECA. Proceedings under the FECA are non-adversarial in nature.
[[Page 65309]]
(a) The FECA has been amended and extended a number of times to
provide workers' compensation benefits to volunteers in the Civil Air
Patrol (5 U.S.C. 8141), members of the Reserve Officers' Training Corps
(5 U.S.C. 8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps
enrollees and Volunteers in Service to America (5 U.S.C. 8143), members
of the National Teachers Corps (5 U.S.C. 8143a), certain student
employees (5 U.S.C. 5351 and 8144), certain law enforcement officers
not employed by the United States (5 U.S.C. 8191-8193), and various
other classes of persons who provide or have provided services to the
Government of the United States.
(b) The FECA provides for payment of several types of benefits,
including compensation for wage loss, schedule awards, medical and
related benefits, and vocational rehabilitation services for conditions
resulting from injuries sustained in performance of duty while in
service to the United States.
(c) The FECA also provides for payment of monetary compensation to
specified survivors of an employee whose death resulted from a work-
related injury and for payment of certain burial expenses subject to
the provisions of 5 U.S.C. 8134.
(d) All types of benefits and conditions of eligibility listed in
this section are subject to the provisions of the FECA and of this
part. This section shall not be construed to modify or enlarge upon the
provisions of the FECA.
Sec. 10.1 What rules govern the administration of the FECA and this
chapter?
In accordance with 5 U.S.C. 8145 and Secretary's Order 5-96, the
responsibility for administering the FECA, except for 5 U.S.C. 8149 as
it pertains to the Employees' Compensation Appeals Board, has been
delegated to the Assistant Secretary for Employment Standards. The
Assistant Secretary, in turn, has delegated the authority and
responsibility for administering the FECA to the Director of the Office
of Workers' Compensation Programs (OWCP). Except as otherwise provided
by law, the Director, OWCP and his or her designees have the exclusive
authority to administer, interpret and enforce the provisions of the
Act.
Sec. 10.2 What do these regulations contain?
This part 10 sets forth the regulations governing administration of
all claims filed under the FECA, except to the extent specified in
certain particular provisions. Its provisions are intended to assist
persons seeking compensation benefits under the FECA, as well as
personnel in the various Federal agencies and the Department of Labor
who process claims filed under the FECA or who perform administrative
functions with respect to the FECA. This part 10 applies to part 25 of
this chapter except as modified by part 25. The various subparts of
this part contain the following:
(a) Subpart A: The general statutory and administrative framework
for processing claims under the FECA. It contains a statement of
purpose and scope, together with definitions of terms, descriptions of
basic forms, information about the disclosure of OWCP records, and a
description of rights and penalties under the FECA, including
convictions for fraud.
(b) Subpart B: The rules for filing notices of injury and claims
for benefits under the FECA. It also addresses evidence and burden of
proof, as well as the process of making decisions concerning
eligibility for benefits.
(c) Subpart C: The rules governing claims for and payment of
continuation of pay.
(d) Subpart D: The rules governing emergency and routine medical
care, second opinion and referee medical examinations directed by OWCP,
and medical reports and records in general. It also addresses the kinds
of treatment which may be authorized and how medical bills are paid.
(e) Subpart E: The rules relating to the payment of monetary
compensation benefits for disability, impairment and death. It includes
the provisions for identifying and processing overpayments of
compensation.
(f) Subpart F: The rules governing the payment of continuing
compensation benefits. It includes provisions concerning the employee's
and the employer's responsibilities in returning the employee to work.
It also contains provisions governing reports of earnings and
dependents, recurrences, and reduction and termination of compensation
benefits.
(g) Subpart G: The rules governing the appeals of decisions under
the FECA. It includes provisions relating to hearings,
reconsiderations, and appeals before the Employees' Compensation
Appeals Board.
(h) Subpart H: The rules concerning legal representation and for
adjustment and recovery from a third party. It also contains provisions
relevant to three groups of employees whose status requires special
application of the provisions of the FECA: Federal grand and petit
jurors, Peace Corps volunteers, and non-Federal law enforcement
officers.
(i) Subpart I: 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.
Sec. 10.3 Have the collection of information requirements of this part
been approved by the Office of Management and Budget (OMB)?
The collection of information requirements in this part have been
approved by OMB and assigned OMB control numbers 1215-0055, 1215-0067,
1215-0078, 1215-0103, 1215-0105, 1215-0115, 1215-0116, 1215-0144, 1215-
0151, 1215-0154, 1215-0155, 1215-0161, 1215-0167, 1215-0176, 1215-0178,
1215-0182, 1215-0193 and 1215-0194.
Definitions and Forms
Sec. 10.5 What definitions apply to these regulations?
Certain words and phrases found in this part are defined in this
section or in the FECA. Some other words and phrases that are used only
in limited situations are defined in the later subparts of these
regulations.
(a) Benefits or Compensation means the money OWCP pays to or on
behalf of a beneficiary from the Employees' Compensation Fund for lost
wages, a loss of wage-earning capacity or a permanent physical
impairment, as well as the money paid to beneficiaries for an
employee's death. These two terms also include any other amounts paid
out of the Employees' Compensation Fund for such things as medical
treatment, medical examinations conducted at the request of OWCP as
part of the claims adjudication process, vocational rehabilitation
services, services of an attendant and funeral expenses, but does not
include continuation of pay.
(b) Beneficiary means an individual who is entitled to a benefit
under the FECA and this part.
(c) Claim means a written assertion of an individual's entitlement
to benefits under the FECA, submitted in a manner authorized by this
part.
(d) Claimant means an individual whose claim has been filed.
(e) Director means the Director of OWCP or a person designated to
carry out his or her functions.
(f) Disability means the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.
(g) Earnings from employment or self-employment means:
[[Page 65310]]
(1) Gross earnings or wages before any deductions and includes the
value of subsistence, quarters, reimbursed expenses and any other goods
or services received in kind as remuneration; or
(2) A reasonable estimate of the cost to have someone else perform
the duties of an individual who accepts no remuneration. Neither lack
of profits, nor the characterization of the duties as a hobby, removes
an unremunerated individual's responsibility to report the estimated
cost to have someone else perform his or her duties.
(h) Employee means, but is not limited to, 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 United States, including an officer or employee of an
instrumentality wholly owned by the United States;
(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 an
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.
(i) Employer or Agency means any civil agency or instrumentality of
the United States Government, or any other organization, group or
institution employing an individual defined as an ``employee'' by this
section. These terms also refer to officers and employees of an
employer having responsibility for the supervision, direction or
control of employees of that employer as an ``immediate superior,'' and
to other employees designated by the employer to carry out the
functions vested in the employer under the FECA and this part,
including officers or employees delegated responsibility by an employer
for authorizing medical treatment for injured employees.
(j) Entitlement means entitlement to benefits as determined by OWCP
under the FECA and the procedures described in this part.
(k) FECA means the Federal Employees' Compensation Act, as amended.
(l) Hospital services means services and supplies provided by
hospitals within the scope of their practice as defined by State law.
(m) Impairment means any anatomic or functional abnormality or
loss. A permanent impairment is any such abnormality or loss after
maximum medical improvement has been achieved.
(n) Knowingly means with knowledge, consciously, willfully or
intentionally.
(o) Medical services means services and supplies provided by or
under the supervision of a physician. Reimbursable chiropractic
services are limited to physical examinations (and related laboratory
tests), x-rays performed to diagnose a subluxation of the spine and
treatment consisting of manual manipulation of the spine to correct a
subluxation.
(p) Medical support services means services, drugs, supplies and
appliances provided by a person other than a physician or hospital.
(q) Occupational disease or Illness means a condition produced by
the work environment over a period longer than a single workday or
shift.
(r) OWCP means the Office of Workers' Compensation Programs.
(s) Pay rate for compensation purposes means the employee's pay, as
determined under 5 U.S.C. 8114, at the time of injury, the time
disability begins or the time compensable disability recurs if the
recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever
is greater, except as otherwise determined under 5 U.S.C. 8113 with
respect to any period.
(t) Physician means an individual defined as such in 5 U.S.C.
8101(2), except during the period for which his or her license to
practice medicine has been suspended or revoked by a State licensing or
regulatory authority.
(u) Qualified hospital means any hospital licensed as such under
State law which has not been excluded under the provisions of subpart I
of this part. Except as otherwise provided by regulation, a qualified
hospital shall be deemed to be designated or approved by OWCP.
(v) Qualified physician means any physician who has not been
excluded under the provisions of subpart I of this part. Except as
otherwise provided by regulation, a qualified physician shall be deemed
to be designated or approved by OWCP.
(w) Qualified provider of medical support services or supplies
means any person, other than a physician or a hospital, who provides
services, drugs, supplies and appliances for which OWCP makes payment,
who possesses any applicable licenses required under State law, and who
has not been excluded under the provisions of subpart I of this part.
(x) Recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that
takes place when a light-duty assignment made specifically to
accommodate an employee's physical limitations due to his or her work-
related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, non-performance of job duties or a
reduction-in-force), or when the physical requirements of such an
assignment are altered so that they exceed his or her established
physical limitations.
(y) Recurrence of medical condition means a documented need for
further medical treatment after release from treatment for the accepted
condition or injury when there is no accompanying work stoppage.
Continuous treatment for the original condition or injury is not
considered a ``need for further medical treatment after release from
treatment,'' nor is an examination without treatment.
(z) Representative means an individual properly authorized by a
claimant in writing to act for the claimant in connection with a claim
or proceeding under the FECA or this part.
(aa) Student means an individual defined at 5 U.S.C. 8101(17). Two
terms used in that particular definition are further defined as
follows:
(1) Additional type of educational or training institution means a
technical, trade, vocational, business or professional school
accredited or licensed by the United States Government or a State
Government or any political subdivision thereof providing courses of
not less than three months duration, that prepares the individual for a
livelihood in a trade, industry, vocation or profession.
(2) Year beyond the high school level means:
(i) The 12-month period beginning the month after the individual
graduates from high school, provided he or she had indicated an
intention to continue schooling within four months of high school
graduation, and each successive 12-month period in which there is
school attendance or the payment of
[[Page 65311]]
compensation based on such attendance; or
(ii) If the individual has indicated that he or she will not
continue schooling within four months of high school graduation, the
12-month period beginning with the month that the individual enters
school to continue his or her education, and each successive 12-month
period in which there is school attendance or the payment of
compensation based on such attendance.
(bb) Subluxation means an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must
be demonstrable on any x-ray film to an individual trained in the
reading of x-rays.
(cc) Surviving spouse means the husband or wife living with or
dependent for support upon a deceased employee at the time of his or
her death, or living apart for reasonable cause or because of the
deceased employee's desertion.
(dd) Temporary aggravation of a pre-existing condition means that
factors of employment have directly caused that condition to be more
severe for a limited period of time and have left no greater impairment
than existed prior to the employment injury.
(ee) Traumatic injury means a condition of the body caused by a
specific event or incident, or series of events or incidents, within a
single workday or shift. Such condition must be caused by external
force, including stress or strain, which is identifiable as to time and
place of occurrence and member or function of the body affected.
Sec. 10.6 What special statutory definitions apply to dependents and
survivors?
(a) 5 U.S.C. 8133 provides that certain benefits are payable to
certain enumerated survivors of employees who have died from an injury
sustained in the performance of duty.
(b) 5 U.S.C. 8148 also provides that certain other benefits may be
payable to certain family members of employees who have been
incarcerated due to a felony conviction.
(c) 5 U.S.C. 8110(b) further provides that any employee who is
found to be eligible for a basic benefit shall be entitled to have such
basic benefit augmented at a specified rate for certain persons who
live in the beneficiary's household or who are dependent upon the
beneficiary for support.
(d) 5 U.S.C. 8101, 8110, 8133 and 8148, which define the nature of
such survivorship or dependency necessary to qualify a beneficiary for
a survivor's benefit or an augmented benefit, apply to the provisions
of this part.
Sec. 10.7 What forms are needed to process claims under the FECA?
(a) Notice of injury, claims and certain specified reports shall be
made on forms prescribed by OWCP. Employers shall not modify these
forms or use substitute forms. Employers are expected to maintain an
adequate supply of the basic forms needed for the proper recording and
reporting of injuries.
------------------------------------------------------------------------
Form No. Title
------------------------------------------------------------------------
(1) CA-1............................... Federal Employee's Notice of
Traumatic Injury and Claim for
Continuation of Pay/
Compensation.
(2) CA-2............................... Notice of Occupational Disease
and Claim for Compensation.
(3) CA-2a.............................. Notice of Employee's Recurrence
of Disability and Claim for
Pay/ Compensation.
(4) CA-5............................... Claim for Compensation by
Widow, Widower and/or
Children.
(5) CA-5b.............................. Claim for Compensation by
Parents, Brothers, Sisters,
Grandparents, or
Grandchildren.
(6) CA-6............................... Official Superior's Report of
Employee's Death.
(7) CA-7............................... Claim for Compensation Due to
Traumatic Injury or
Occupational Disease.
(8) CA-7a.............................. Time Analysis Form.
(9) CA-7b.............................. Leave Buy Back (LBB) Worksheet/
Certification and Election.
(10) CA-8.............................. Claim for Continuing
Compensation on Account of
Disability.
(11) CA-16............................. Authorization of Examination
and/or Treatment.
(12) CA-17............................. Duty Status Report.
(13) CA-20............................. Attending Physician's Report.
(14) CA-20a............................ Attending Physician's
Supplemental Report.
------------------------------------------------------------------------
(b) Copies of the forms listed in this paragraph are available for
public inspection at the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor,
Washington, DC 20210. They may also be obtained from district offices,
employers (i.e., safety and health offices, supervisors), and the
Internet, at www.dol.gov./esa/owcp.htm.
Information in Program Records
Sec. 10.10 Are all documents relating to claims filed under the FECA
considered confidential?
All records relating to claims for benefits, including copies of
such records maintained by an employer, 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.
Sec. 10.11 Who maintains custody and control of FECA records?
All records relating to claims for benefits filed under the FECA,
including any copies of such records maintained by an employing agency,
are covered by the government-wide Privacy Act system of records
entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal
Employees' Compensation Act File). This system of records is maintained
by and under the control of OWCP, and, as such, all records covered by
DOL/GOVT-1 are official records of OWCP. The protection, release,
inspection and copying of records covered by DOL/GOVT-1 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 FECA records maintained by OWCP or the employing
agency, are to be resolved in accordance with this section.
Sec. 10.12 How may a FECA claimant or beneficiary obtain copies of
protected records?
(a) A claimant seeking copies of his or her official FECA file
should address a request to the District Director of the OWCP office
having custody of the file. A claimant seeking copies of FECA-related
documents in the custody of the employer should follow the procedures
established by that agency.
(b) (1) While an employing agency may establish procedures that an
injured employee or beneficiary should follow in requesting access to
documents it maintains, any decision issued in response to such a
request must comply with the rules and regulations of the Department of
Labor which govern all other aspects of safeguarding these records.
(2) No employing agency has the authority to issue determinations
with respect to requests for the correction or amendment of records
contained in or covered by DOL/GOVT-1. That authority is within the
exclusive control of OWCP. Thus, any request for correction or
amendment received by an employing agency must be referred to OWCP for
review and decision.
(3) Any administrative appeal taken from a denial issued by the
employing agency or OWCP shall be filed with the
[[Page 65312]]
Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.
Sec. 10.13 What process is used by a person who wants to correct FECA-
related documents?
Any request to amend a record covered by DOL/GOVT-1 should be
directed to the district office having custody of the official file. No
employer has the authority to issue determinations with regard to
requests for the correction of records contained in or covered by DOL/
GOVT-1. Any request for correction received by an employer must be
referred to OWCP for review and decision.
Rights and Penalties
Sec. 10.15 May compensation rights be waived?
No employer or other person may require an employee or other
claimant to enter into any agreement, either before or after an injury
or death, to waive his or her right to claim compensation under the
FECA. No waiver of compensation rights shall be valid.
Sec. 10.16 What criminal penalties may be imposed in connection with a
claim under the FECA?
(a) A number of statutory provisions make it a crime to file a
false or fraudulent claim or statement with the Government in
connection with a claim under the FECA, or to wrongfully impede a FECA
claim. Included among these provisions are sections 287, 1001, 1920,
and 1922 of title 18, United States Code. Enforcement of these and
other criminal provisions that may apply to claims under the FECA are
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-
12, to impose civil penalties and assessments against persons 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 the FECA. The Department of Labor's
regulations implementing the PFRCA are found at 29 CFR part 22.
Sec. 10.17 Is a beneficiary who defrauds the Government in connection
with a claim for 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
Government in connection with a claim for benefits, the beneficiary's
entitlement to any further compensation benefits will terminate
effective the date either the guilty plea is accepted or a verdict of
guilty is returned after trial, for any injury occurring on or before
the date of such guilty plea or verdict. Termination of entitlement
under this section is not affected by any subsequent change in or
recurrence of the beneficiary's medical condition.
Sec. 10.18 Can a beneficiary who is incarcerated based on a felony
conviction still receive benefits?
(a) Whenever a beneficiary is incarcerated in a State or Federal
jail, prison, penal institution or other correctional facility due to a
State or Federal felony conviction, he or she forfeits all rights to
compensation benefits during the period of incarceration. A
beneficiary's right to compensation benefits for the period of his or
her incarceration is not restored after such incarceration ends, even
though payment of compensation benefits may resume.
(b) If the beneficiary has eligible dependents, OWCP will pay
compensation to such dependents at a reduced rate during the period of
his or her incarceration, by applying the percentages of 5 U.S.C.
8133(a)(1) through (5) to the beneficiary's gross current entitlement
rather than to the beneficiary's monthly pay.
(c) If OWCP's decision on entitlement is pending when the period of
incarceration begins, and compensation is due for a period of time
prior to such incarceration, payment for that period will only be made
to the beneficiary following his or her release.
Subpart B--Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease, and Death--Employee or
Survivor's Actions
Sec. 10.100 How and when is a notice of traumatic injury filed?
(a) To claim benefits under the FECA, an employee who sustains a
work-related traumatic injury must give notice of the injury in writing
on Form CA-1, which may be obtained from the employer or from the
Internet at www.dol.gov./esa/owcp.htm. The employee must forward
this notice to the employer. Another person, including the employer,
may give notice of injury on the employee's behalf. The person
submitting a notice shall include the Social Security Number (SSN) of
the injured employee.
(b) For injuries sustained on or after September 7, 1974, a notice
of injury must be filed within three years of the injury. (The form
contains the necessary words of claim.) The requirements for filing
notice are further described in 5 U.S.C. 8119. Also see Sec. 10.205
concerning time requirements for filing claims for continuation of pay.
(1) If the claim is not filed within three years, compensation may
still be allowed if notice of injury was given within 30 days or the
employer had actual knowledge of the injury or death within 30 days
after occurrence. This knowledge may consist of written records or
verbal notification. An entry into an employee's medical record may
also satisfy this requirement if it is sufficient to place the employer
on notice of a possible work-related injury or disease.
(2) OWCP may excuse failure to comply with the three-year time
requirement because of truly exceptional circumstances (for example,
being held prisoner of war).
(3) The claimant may withdraw his or her claim (but not the notice
of injury) by so requesting in writing to OWCP at any time before OWCP
determines eligibility for benefits. Any continuation of pay (COP)
granted to an employee after a claim is withdrawn must be charged to
sick or annual leave, or considered an overpayment of pay consistent
with 5 U.S.C. 5584, at the employee's option.
(c) However, in cases of latent disability, the time for filing
claim does not begin to run until the employee has a compensable
disability and is aware, or reasonably should have been aware, of the
causal relationship between the disability and the employment (see 5
U.S.C. 8122(b)).
Sec. 10.101 How and when is a notice of occupational disease filed?
(a) To claim benefits under the FECA, an employee who has a disease
which he or she believes to be work-related must give notice of the
condition in writing on Form CA-2, which may be obtained from the
employer or from the Internet at www.dol.gov./esa/owcp.htm. The
employee must forward this notice to the employer. Another person,
including the employer, may do so on the employee's behalf. The person
submitting a notice shall include the Social Security Number (SSN) of
the injured employee. The claimant may withdraw his or her claim (but
not the notice of occupational disease) by so requesting in writing to
OWCP at any time before OWCP determines eligibility for benefits.
(b) For occupational diseases sustained as a result of exposure to
injurious work factors that occurs on or after September 7, 1974, a
notice of occupational disease must be filed within three years of the
onset of the
[[Page 65313]]
condition. (The form contains the necessary words of claim.) The
requirements for timely filing are described in Sec. 10.100(b)(1)
through (3).
(c) However, in cases of latent disability, the time for filing
claim does not begin to run until the employee has a compensable
disability and is aware, or reasonably should have been aware, of the
causal relationship between the disability and the employment (see 5
U.S.C. 8122(b)).
Sec. 10.102 How and when is a claim for wage loss compensation filed?
(a) Form CA-7 is used to claim compensation for periods of
disability not covered by COP.
(1) An employee who is disabled with loss of pay for more than
three calendar days due to an injury, or someone acting on his or her
behalf, must file Form CA-7 before compensation can be paid.
(2) The employee shall complete the front of Form CA-7 and submit
the form to the employer for completion and transmission to OWCP. The
form should be completed as soon as possible, but no more than 14
calendar days after the date pay stops due to the injury or disease.
(3) The requirements for filing claims are further described in 5
U.S.C. 8121.
(b) Form CA-8 is used to claim compensation for additional periods
of disability after Form CA-7 is submitted to OWCP.
(1) It is the employee's responsibility to submit Form CA-8.
Without receipt of such claim, OWCP has no knowledge of continuing wage
loss. Therefore, while disability continues, the employee should submit
a claim on Form CA-8 each two weeks until otherwise instructed by OWCP.
(2) The employee shall complete the front of Form CA-8 and submit
the form to the employer for completion and transmission to OWCP.
(3) The employee is responsible for submitting, or arranging for
the submittal of, medical evidence to OWCP which establishes both that
disability continues and that the disability is due to the work-related
injury. Form CA-20a is attached to Form CA-8 for this purpose.
Sec. 10.103 How and when is a claim for permanent impairment filed?
Form CA-7 is used to claim compensation for impairment to a body
part covered under the schedule established by 5 U.S.C. 8107. If Form
CA-7 has already been filed to claim disability compensation, an
employee may file a claim for such impairment by sending a letter to
OWCP which specifies the nature of the benefit claimed.
Sec. 10.104 How and when is a claim for recurrence filed?
(a) A recurrence should be reported on Form CA-2a if it causes the
employee to lose time from work and incur a wage loss, or if the
employee experiences a renewed need for treatment after previously
being released from care. However, a notice of recurrence should not be
filed when a new injury, new occupational disease, or new event
contributing to an already-existing occupational disease has occurred.
In these instances, the employee should file Form CA-1 or CA-2.
(b) The employee has the burden of establishing by the weight of
reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury.
(1) The employee must include a detailed factual statement as
described on Form CA-2a. The employer may submit comments concerning
the employee's statement.
(2) The employee should arrange for the submittal of a detailed
medical report from the attending physician as described on Form CA-2a.
The employee should also submit, or arrange for the submittal of,
similar medical reports for any examination and/or treatment received
after returning to work following the original injury.
Sec. 10.105 How and when is a notice of death and claim for benefits
filed?
(a) If an employee dies from a work-related traumatic injury or an
occupational disease, any survivor may file a claim for death benefits
using Form CA-5 or CA-5b, which may be obtained from the employer or
from the Internet at www.dol.gov./esa/owcp.htm. The survivor must
provide this notice in writing and forward it to the employer. Another
person, including the employer, may do so on the survivor's behalf. The
survivor may also submit the completed Form CA-5 or CA-5b directly to
OWCP. The survivor shall disclose the SSNs of all survivors on whose
behalf claim for benefits is made in addition to the SSN of the
deceased employee. The survivor may withdraw his or her claim (but not
the notice of death) by so requesting in writing to OWCP at any time
before OWCP determines eligibility for benefits.
(b) For deaths that occur on or after September 7, 1974, a notice
of death must be filed within three years of the death. The form
contains the necessary words of claim. The requirements for timely
filing are described in Sec. 10.100(b)(1) through (3).
(c) However, in cases of death due to latent disability, the time
for filing the claim does not begin to run until the survivor is aware,
or reasonably should have been aware, of the causal relationship
between the death and the employment (see 5 U.S.C. 8122(b)).
(d) The filing of a notice of injury or occupational disease will
satisfy the time requirements for a death claim based on the same
injury or occupational disease. If an injured employee or someone
acting on the employee's behalf does not file a claim before the
employee's death, the right to claim compensation for disability other
than medical expenses ceases and does not survive.
(e) A survivor must be alive to receive any payment; there is no
vested right to such payment. A report as described in Sec. 10.414 of
this part must be filed once each year to support continuing payments
of compensation.
Notices and Claims for Injury, Disease, and Death--Employer's
Actions
Sec. 10.110 What should the employer do when an employee files a
notice of traumatic injury or occupational disease?
(a) The employer shall complete the agency portion of Form CA-1
(for traumatic injury) or CA-2 (for occupational disease) no more than
10 working days after receipt of notice from the employee. The employer
shall also complete the Receipt of Notice and give it to the employee,
along with copies of both sides of Form CA-1 or Form CA-2.
(b) The employer must complete and transmit the form to OWCP within
10 working days after receipt of notice from the employee if the injury
or disease will likely result in:
(1) A medical charge against OWCP;
(2) Disability for work beyond the day or shift of injury;
(3) The need for more than two appointments for medical examination
and/or treatment on separate days, leading to time loss from work;
(4) Future disability;
(5) Permanent impairment; or
(6) Continuation of pay pursuant to 5 U.S.C. 8118.
(c) The employer should not wait for submittal of supporting
evidence before sending the form to OWCP.
(d) If none of the conditions in paragraph (b) of this section
applies, the Form CA-1 or CA-2 shall be retained as a permanent record
in the Employee Medical Folder in accordance with the guidelines
established by the Office of Personnel Management.
[[Page 65314]]
Sec. 10.111 What should the employer do when an employee files an
initial claim for compensation due to disability or permanent
impairment?
(a) When an employee is disabled by a work-related injury and loses
pay for more than three calendar days, or has a permanent impairment or
serious disfigurement as described in 5 U.S.C. 8107, the employer shall
furnish the employee with Form CA-7 for the purpose of claiming
compensation.
(b) If the employee is receiving continuation of pay (COP), the
employer should give Form CA-7 to the employee by the 30th day of the
COP period and submit the form to OWCP by the 40th day of the COP
period. If the employee has not returned the form to the employer by
the 40th day of the COP period, the employer should ask him or her to
submit it as soon as possible.
(c) Upon receipt of Form CA-7 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five
working days after receipt from the employee, the employer shall
forward the completed Form CA-7 and any accompanying medical report to
OWCP.
Sec. 10.112 What should the employer do when an employee files a claim
for continuing compensation due to disability?
(a) If the employee continues in a leave-without-pay status due to
a work-related injury after the period of compensation initially
claimed on Form CA-7, the employer shall furnish the employee with Form
CA-8 for the purpose of claiming continuing compensation.
(b) Upon receipt of Form CA-8 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five
working days after receipt from the employee, the employer shall
forward the completed Form CA-8 and any accompanying medical report to
OWCP.
Sec. 10.113 What should the employer do when an employee dies from a
work-related injury or disease?
(a) The employer shall immediately report a death due to a work-
related traumatic injury or occupational disease to OWCP by telephone,
telegram, or facsimile (fax). No more than 10 working days after
notification of the death, the employer shall complete and send Form
CA-6 to OWCP.
(b) When possible, the employer shall furnish a Form CA-5 or CA-5b
to all persons likely to be entitled to compensation for death of an
employee. The employer should also supply information about completing
and filing the form.
(c) The employer shall promptly transmit Form CA-5 or CA-5b to
OWCP. The employer shall also promptly transmit to OWCP any other claim
or paper submitted which appears to claim compensation on account of
death.
Evidence and Burden of Proof
Sec. 10.115 What evidence is needed to establish a claim?
Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence
required. OWCP may send any request for additional evidence to the
claimant and to his or her representative, if any. Evidence should be
submitted in writing. The evidence submitted must be reliable,
probative and substantial. Each claim for compensation must meet five
requirements before OWCP can accept it. These requirements, which the
employee must establish to meet his or her burden of proof, are as
follows:
(a) The claim was filed within the time limits specified by the
FECA;
(b) The injured person was, at the time of injury, an employee of
the United States as defined in 5 U.S.C. 8101(1) and Sec. 10.5(h) of
this part;
(c) The fact that an injury, disease or death occurred;
(d) The injury, disease or death occurred while the employee was in
the performance of duty; and
(e) The medical condition for which compensation or medical
benefits is claimed is causally related to the claimed injury, disease
or death. Neither the fact that the condition manifests itself during a
period of Federal employment, nor the belief of the claimant that
factors of employment caused or aggravated the condition, is sufficient
in itself to establish causal relationship.
(f) In all claims, the claimant is responsible for submitting, or
arranging for submittal of, a medical report from the attending
physician. For wage loss benefits, the claimant must also submit
medical evidence showing that the condition claimed is disabling. The
rules for submitting medical reports are found in Secs. 10.330 through
10.333.
Sec. 10.116 What additional evidence is needed in cases based on
occupational disease?
(a) The employee must submit the specific detailed information
described on Form CA-2 and on any checklist (Form CA-35, A-H) provided
by the employer. OWCP has developed these checklists to address
particular occupational diseases. The medical report should also
include the information specified on the checklist for the particular
disease claimed.
(b) The employer should submit the specific detailed information
described on Form CA-2 and on any checklist pertaining to the claimed
disease.
Sec. 10.117 What happens if, in any claim, the employer contests any
of the facts as stated by the claimant?
(a) An employer who has reason to disagree with any aspect of the
claimant's report shall submit a statement to OWCP that specifically
describes the factual allegation or argument with which it disagrees
and provide evidence or argument to support its position. The employer
may include supporting documents such as witness statements, medical
reports or records, or any other relevant information.
(b) Any such statement shall be submitted to OWCP with the notice
of traumatic injury or death, or within 30 calendar days from the date
notice of occupational disease or death is received from the claimant.
If the employer does not submit a written explanation to support the
disagreement, OWCP may accept the claimant's report of injury as
established. The employer may not use a disagreement with an aspect of
the claimant's report to delay forwarding the claim to OWCP or to
compel or induce the claimant to change or withdraw the claim.
Sec. 10.118 Does the employer participate in the claims process in any
other way?
(a) The employer is responsible for submitting to OWCP all relevant
and probative factual and medical evidence in its possession, or which
it may acquire through investigation or other means. Such evidence may
be submitted at any time.
(b) The employer may ascertain the events surrounding an injury and
the extent of disability where it appears that an employee who alleges
total disability may be performing other work, or may be engaging in
activities which would indicate less than total disability. This
authority is in addition to that given in Sec. 10.118(a). However, the
provisions of the Privacy Act apply to any endeavor by the employer to
ascertain the facts of the case (see Secs. 10.10 and 10.11).
(c) The employer does not have the right, except as provided in
subpart C of this part, to actively participate in the claims
adjudication process.
[[Page 65315]]
Sec. 10.119 What action will OWCP take with respect to information
submitted by the employer?
OWCP will consider all evidence submitted appropriately, and OWCP
will inform the employee, the employee's representative, if any, and
the employer of any action taken. Where an employer contests a claim
within 30 days of the initial submittal and the claim is later
approved, OWCP will notify the employer of the rationale for approving
the claim.
Sec. 10.120 May a claimant submit additional evidence?
A claimant or a person acting on his or her behalf may submit to
OWCP at any time any other evidence relevant to the claim.
Sec. 10.121 What happens if OWCP needs more evidence from the
claimant?
If the claimant submits factual evidence, medical evidence, or
both, but OWCP determines that this evidence is not sufficient to meet
the burden of proof, OWCP will inform the claimant of the additional
evidence needed. The claimant will be allowed at least 30 days to
submit the evidence required. OWCP is not required to notify the
claimant a second time if the evidence submitted in response to its
first request is not sufficient to meet the burden of proof.
Decisions on Entitlement to Benefits
Sec. 10.125 How does OWCP determine entitlement to benefits?
(a) In reaching any decision with respect to FECA coverage or
entitlement, OWCP considers the claim presented by the claimant, the
report by the employer, and the results of such investigation as OWCP
may deem necessary.
(b) OWCP claims staff apply the law, the regulations, and its
procedures to the facts as reported or obtained upon investigation.
They also apply decisions of the Employees' Compensation Appeals Board
and administrative decisions of OWCP as set forth in FECA Program
Memoranda.
Sec. 10.126 What does the decision contain?
The decision shall contain findings of fact and a statement of
reasons. It is accompanied by information about the claimant's appeal
rights, which may include the right to a hearing, a reconsideration,
and/or a review by the Employees' Compensation Appeals Board. (See
subpart G of this part.)
Sec. 10.127 To whom is the decision sent?
A copy of the decision shall be mailed to the employee's last known
address. If the employee has a designated representative before OWCP, a
copy of the decision will also be mailed to the representative.
Notification to either the employee or the representative will be
considered notification to both. A copy of the decision will also be
sent to the employer.
Subpart C--Continuation of Pay
Sec. 10.200 What is continuation of pay?
(a) For most employees who sustain a traumatic injury, the FECA
provides that the employer must continue the employee's regular pay
during any periods of resulting disability, up to a maximum of 45
calendar days. This is called continuation of pay, or COP. The
employer, not OWCP, pays COP. Unlike wage loss benefits, COP is subject
to taxes and all other payroll deductions that are made from regular
income.
(b) The employer must continue the pay of an employee who is
eligible for COP, and may not require the employee to use his or her
own sick or annual leave, unless the provisions of Secs. 10.200(c),
10.220, or Sec. 10.222 apply. However, while continuing the employee's
pay, the employer may controvert the employee's COP entitlement pending
a final determination by OWCP. OWCP has the exclusive authority to
determine questions of entitlement and all other issues relating to
COP.
(c) The FECA excludes certain persons from eligibility for COP. COP
cannot be authorized for members of these excluded groups, which
include but are not limited to: persons 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; volunteers (for
instance, in the Civil Air Patrol and Peace Corps); Job Corps and Youth
Conservation Corps enrollees; individuals in work-study programs, and
grand or petit jurors (unless otherwise Federal employees).
Eligibility for COP
Sec. 10.205 What conditions must be met to receive COP?
(a) To be eligible for COP, a person must:
(1) Have a ``traumatic injury'' as defined at Sec. 10.5(ee) which
is job-related and the cause of the disability, and/or the cause of
lost time due to the need for medical examination and treatment;
(2) File Form CA-1 within 30 days of the date of the injury (but if
that form is not available, using another form would not alone preclude
receipt); and
(3) Begin losing time from work due to the traumatic injury within
45 days of the injury.
(b) OWCP may find that the employee is not entitled to COP for
other reasons consistent with the statute (see Sec. 10.220).
Sec. 10.206 May an employee who uses leave after an injury later
decide to use COP instead?
On Form CA-1, an employee may elect to use accumulated sick or
annual leave, or leave advanced by the agency, instead of electing COP.
The employee can change the election between leave and COP for
prospective periods at any point while eligibility for COP remains. The
employee may also change the election for past periods and request COP
in lieu of leave already taken for the same period. In either
situation, the following provisions apply:
(a) The request must be made to the employer within one year of the
date the leave was used or the date of the written approval of the
claim by OWCP (if written approval is issued), whichever is later.
(b) Where the employee is otherwise eligible, the agency shall
restore leave taken in lieu of any of the 45 COP days. Where any of the
45 COP days remain unused, the agency shall continue pay prospectively.
(c) The use of leave may not be used to delay or extend the 45-day
COP period or to otherwise affect the time limitation as provided by 5
U.S.C. 8117. Therefore, any leave used during the period of eligibility
counts towards the 45-day maximum entitlement to COP.
Sec. 10.207 May an employee who returns to work, then stops work again
due to the effects of the injury, receive COP?
If the employee recovers from disability and returns to work, then
becomes disabled again and stops work, the employer shall pay any of
the 45 days of entitlement to COP not used during the initial period of
disability where:
(a) The employee completes Form CA-2a and elects to receive regular
pay;
(b) OWCP did not deny the original claim for disability;
(c) The disability recurs and the employee stops work within 45
days of the time the employee first returned to work following the
initial period of disability; and
(d) Pay has not been continued for the entire 45 days.
Responsibilities
Sec. 10.210 What are the employee's responsibilities in COP cases?
An employee who sustains a traumatic injury which he or she
considers disabling, or someone authorized to act on his or her behalf,
[[Page 65316]]
must take the following actions to ensure continuing eligibility for
COP. The employee must:
(a) Complete and submit Form CA-1 to the employing agency as soon
as possible, but no later than 30 days from the date the traumatic
injury occurred.
(b) Ensure that medical evidence supporting disability resulting
from the claimed traumatic injury, including a statement as to when the
employee can return to his or her date of injury job, is provided to
the employer within 10 calendar days after filing the claim for COP.
(c) Ensure that relevant medical evidence is submitted to OWCP, and
cooperate with OWCP in developing the claim.
(d) Ensure that the treating physician specifies work limitations
and provides them to the employer and/or representatives of OWCP.
(e) Provide to the treating physician a description of any specific
alternative positions offered the employee, and ensure that the
treating physician responds promptly to the employer and/or OWCP, with
an opinion as to whether and how soon the employee could perform that
or any other specific position.
Sec. 10.211 What are the employer's responsibilities in COP cases?
Once the employer learns of a traumatic injury sustained by an
employee, it shall:
(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in
accordance with Sec. 10.300. Failure to do so may mean that OWCP will
not uphold any termination of COP by the employer.
(b) Advise the employee of the right to receive COP, and the need
to elect among COP, annual or sick leave or leave without pay, for any
period of disability.
(c) Inform the employee of any decision to controvert COP and/or
terminate pay, and the basis for doing so.
(d) Complete Form CA-1 and transmit it, along with all other
available pertinent information, (including the basis for any
controversion), to OWCP within 10 working days after receiving the
completed form from the employee.
Calculation of COP
Sec. 10.215 How does OWCP compute the number of days of COP used?
COP is payable for a maximum of 45 calendar days, and every day
used is counted toward this maximum. The following rules apply:
(a) Time lost on the day or shift of the injury does not count
toward COP. (Instead, the agency must keep the employee in a pay status
for that period);
(b) The first COP day is the first day disability begins following
the date of injury (providing it is within the 30 days following the
date of injury), except where the injury occurs before the beginning of
the work day or shift, in which case the date of injury is charged to
COP;
(c) Any part of a day or shift (except for the day of the injury)
counts as a full day toward the 45 calendar day total;
(d) Regular days off are included if COP has been used on the
regular work days immediately preceding or following the regular day(s)
off, and medical evidence supports disability; and
(e) Leave used during a period when COP is otherwise payable is
counted toward the 45-day COP maximum as if the employee had been in a
COP status.
(f) For employees with part-time or intermittent schedules, all
calendar days on which medical evidence indicates disability are
counted as COP days, regardless of whether the employee was or would
have been scheduled to work on those days. The rate at which COP is
paid for these employees is calculated according to Sec. 10.216(b).
Sec. 10.216 How is the pay rate for COP calculated?
The employer shall calculate COP using the period of time and the
weekly pay rate.
(a) The pay rate for COP purposes is equal to the employee's
regular ``weekly'' pay (the average of the weekly pay over the
preceding 52 weeks).
(1) The pay rate excludes overtime pay, but includes other
applicable extra pay except to the extent prohibited by law.
(2) Changes in pay or salary (for example, promotion, demotion,
within-grade increases, termination of a temporary detail, etc.) which
would have otherwise occurred during the 45-day period are to be
reflected in the weekly pay determination.
(b) The weekly pay for COP purposes is determined according to the
following formulas:
(1) For full or part-time workers (permanent or temporary) who work
the same number of hours each week of the year (or of the appointment),
the weekly pay rate is the hourly pay rate (A) in effect on the date of
injury multiplied by ( x ) the number of hours worked each week (B): A
x B = Weekly Pay Rate.
(2) For part-time workers (permanent or temporary) who do not work
the same number of hours each week, but who do work each week of the
year (or period of appointment), the weekly pay rate is an average of
the weekly earnings, established by dividing (<divide>) the total
earnings (excluding overtime) from the year immediately preceding the
injury (A) by the number of weeks (or partial weeks) worked in that
year (B): A <divide> B = Weekly Pay Rate.
(3) For intermittent, seasonal and on-call workers, whether
permanent or temporary, who do not work either the same number of hours
or every week of the year (or period of appointment), the weekly pay
rate is the average weekly earnings established by dividing (<divide>)
the total earnings during the full 12-month period immediately
preceding the date of injury (excluding overtime) (A), by the number of
weeks (or partial weeks) worked during that year (B) (that is, A
<divide> B); or 150 times the average daily wage earned in the
employment during the days employed within the full year immediately
preceding the date of injury divided by 52 weeks, whichever is greater.
Sec. 10.217 Is COP charged if the employee continues to work, but in a
different job that pays less?
If the employee cannot perform the duties of his or her regular
position, but instead works in another job with different duties with
no loss in pay, then COP is not chargeable. COP must be paid and the
days counted against the 45 days authorized by law whenever an actual
reduction of pay results from the injury, including a reduction of pay
for the employee's normal administrative workweek that results from a
change or diminution in his or her duties following an injury. However,
this does not include a reduction of pay that is due solely to an
employer being prohibited by law from paying extra pay to an employee
for work he or she does not actually perform.
Controversion and Termination of COP
Sec. 10.220 When is an employer not required to pay COP?
An employer shall continue the regular pay of an eligible employee
without a break in time for up to 45 calendar days, except when, and
only when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of
injury;
(d) The injury was not reported until after employment has been
terminated;
(e) The injury occurred off the employing agency's premises and was
otherwise not within the performance of official duties;
[[Page 65317]]
(f) The injury was caused by the employee's willful misconduct,
intent to injure or kill himself or herself or another person, or was
proximately caused by intoxication by alcohol or illegal drugs; or
(g) Work did not stop until more than 30 days following the injury.
Sec. 10.221 How is a claim for COP controverted?
When the employer stops an employee's pay for one of the reasons
cited in Sec. 10.220, the employer must controvert the claim for COP on
Form CA-1, explaining in detail the basis for the refusal. The final
determination on entitlement to COP always rests with OWCP.
Sec. 10.222 When may an employer terminate COP which has already
begun?
(a) Where the employer has continued the pay of the employee, it
may be stopped only when at least one of the following circumstances is
present:
(1) Medical evidence which on its face supports disability due to a
work-related injury is not received within 10 calendar days after the
claim is submitted (unless the employer's own investigation shows
disability to exist). Where the medical evidence is later provided,
however, COP shall be reinstated retroactive to the date of
termination;
(2) The medical evidence from the treating physician shows that the
employee is not disabled from his or her regular position;
(3) Medical evidence from the treating physician shows that the
employee is not totally disabled, and the employee refuses a written
offer of a suitable alternative position which is approved by the
attending physician. If OWCP later determines that the position was not
suitable, OWCP will direct the employer to grant the employee COP
retroactive to the termination date.
(4) The employee returns to work with no loss of pay;
(5) The employee's period of employment expires or employment is
otherwise terminated (as established prior to the date of injury);
(6) OWCP directs the employer to stop COP; and/or
(7) COP has been paid for 45 calendar days.
(b) An employer may not interrupt or stop COP to which the employee
is otherwise entitled because of a disciplinary action, unless a
preliminary notice was issued to the employee before the date of injury
and the action becomes final or otherwise takes effect during the COP
period.
(c) An employer cannot otherwise stop COP unless it does so for one
of the reasons found in this section or Sec. 10.220. Where an employer
stops COP, it must file a controversion with OWCP, setting forth the
basis on which it terminated COP, no later than the effective date of
the termination.
Sec. 10.223 Are there other circumstances under which OWCP will not
authorize payment of COP?
When OWCP finds that an employee or his or her representative
refuses or obstructs a medical examination required by OWCP, the right
to COP is suspended until the refusal or obstruction ceases. COP
already paid or payable for the period of suspension is forfeited. If
already paid, the COP may be charged to annual or sick leave or
considered an overpayment of pay consistent with 5 U.S.C. 5584.
Sec. 10.224 What happens if OWCP finds that the employee is not
entitled to COP after it has been paid?
Where OWCP finds that the employee is not entitled to COP after it
has been paid, the employee may chose to have the time charged to
annual or sick leave, or considered an overpayment of pay under 5
U.S.C. 5584. The employer must correct any deficiencies in COP as
directed by OWCP.
Subpart D--Medical and Related Benefits
Emergency Medical Care
Sec. 10.300 What are the basic rules for authorizing emergency medical
care?
(a) When an employee sustains a work-related traumatic injury that
requires medical examination, medical treatment, or both, the employer
shall authorize such examination and/or treatment by issuing a Form CA-
16. This form may be used for occupational disease or illness only if
the employer has obtained prior permission from OWCP.
(b) The employer shall issue Form CA-16 within four hours of the
claimed injury. If the employer gives verbal authorization for such
care, he or she should issue a Form CA-16 within 48 hours. The employer
is not required to issue a Form CA-16 more than one week after the
occurrence of the claimed injury. The employer may not authorize
examination or medical or other treatment in any case that OWCP has
disallowed.
(c) Form CA-16 must contain the full name and address of the
qualified physician or qualified medical facility authorized to provide
service. The authorizing official must sign and date the form and must
state his or her title. Form CA-16 authorizes treatment for 60 days
from the date of issuance, unless OWCP terminates the authorization
sooner.
(d) The employer should advise the employee of the right to his or
her initial choice of physician. The employer shall allow the employee
to select a qualified physician, after advising him or her of those
physicians excluded under subpart I of this part. The physician may be
in private practice, including a health maintenance organization (HMO),
or employed by a Federal agency such as the Department of the Army,
Navy, Air Force, or Veterans Affairs. Any qualified physician may
provide initial treatment of a work-related injury in an emergency. See
also Sec. 10.825(b).
Sec. 10.301 May the physician designated on Form CA-16 refer the
employee to another medical specialist or medical facility?
The physician designated on Form CA-16 may refer the employee for
further examination, testing, or medical care. OWCP will pay this
physician or facility's bill on the authority of Form CA-16. The
employer should not issue a second Form CA-16.
Sec. 10.302 Should the employer authorize medical care if he or she
doubts that the injury occurred, or that it is work-related?
If the employer doubts that the injury occurred, or that it is
work-related, he or she should authorize medical care by completing
Form CA-16 and checking block 6B of the form. If the medical and
factual evidence sent to OWCP shows that the condition treated is not
work-related, OWCP will notify the employee, the employer, and the
physician or hospital that OWCP will not authorize payment for any
further treatment.
Sec. 10.303 Should the employer use a Form CA-16 to authorize medical
testing when an employee is exposed to a workplace hazard just once?
(a) Simple exposure to a workplace hazard, such as an infectious
agent, does not constitute a work-related injury entitling an employee
to medical treatment under the FECA. The employer therefore should not
use a Form CA-16 to authorize medical testing for an employee who has
merely been exposed to a workplace hazard, unless the employee has
sustained an identifiable injury or medical condition as a result of
that exposure. OWCP will authorize preventive treatment only under
certain well-defined circumstances (see Sec. 10.313).
(b) Employers may be required under other statutes or regulations
to provide their employees with medical testing and/or other services
in situations described in paragraph (a) of this section. For example,
regulations issued
[[Page 65318]]
by the Occupational Safety and Health Administration at 29 CFR chapter
XVII require employers to provide their employees with medical
consultations and/or examinations when they either exhibit symptoms
consistent with exposure to a workplace hazard, or when an identifiable
event such as a spill, leak or explosion occurs and results in the
likelihood of exposure to a workplace hazard. In addition, 5 U.S.C.
7901 authorizes employers to establish health programs whose staff can
perform tests for workplace hazards, counsel employees for exposure or
feared exposure to such hazards, and provide health care screening and
other associated services.
Sec. 10.304 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.
Medical Treatment and Related Issues
Sec. 10.310 What are the basic rules for obtaining medical care?
(a) The employee is entitled to receive all medical services,
appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related
injury. The employee need not be disabled to receive such treatment. If
there is any doubt as to whether a specific service, appliance or
supply is necessary to treat the work-related injury, the employee
should consult OWCP prior to obtaining it.
(b) Any qualified physician or qualified hospital may provide such
services, appliances and supplies. A qualified provider of medical
support services may also furnish appropriate services, appliances, and
supplies. OWCP may apply a test of cost-effectiveness to appliances and
supplies. With respect to prescribed medications, OWCP may require the
use of generic equivalents where they are available.
Sec. 10.311 What are the special rules for the services of
chiropractors?
(a) The services of chiropractors that may be reimbursed are
limited by the FECA 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) In accordance with 5 U.S.C. 8101(3), 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 submittal of the x-ray,
or a report of the x-ray, but the report must be available for
submittal on request.
(d) A chiropractor may also provide services in the nature of
physical therapy under the direction of a qualified physician.
Sec. 10.312 What are the special rules for the services of clinical
psychologists?
A clinical psychologist may serve as a physician only 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.
Sec. 10.313 Will OWCP pay for preventive treatment?
The FECA does not authorize payment for preventive measures such as
vaccines and inoculations, and in general, preventive treatment may be
a responsibility of the employing agency under the provisions of 5
U.S.C. 7901 (see Sec. 10.303). However, OWCP can authorize treatment
for the following conditions, even though such treatment is designed,
in part, to prevent further injury:
(a) Complications of preventive measures which are provided or
sponsored by the agency, such as an adverse reaction to prophylactic
immunization.
(b) Actual or probable exposure to a known contaminant due to an
injury, thereby requiring disease-specific measures against infection.
Examples include the provision of tetanus antitoxin or booster toxoid
injections for puncture wounds; administration of rabies vaccine for a
bite from a rabid or potentially rabid animal; or appropriate measures
where exposure to human immunodeficiency virus (HIV) has occurred.
(c) Conversion of tuberculin reaction from negative to positive
following exposure to tuberculosis in the performance of duty. In this
situation, the appropriate therapy may be authorized.
(d) Where injury to one eye has resulted in loss of vision,
periodic examination of the uninjured eye to detect possible
sympathetic involvement of the uninjured eye at an early stage.
Sec. 10.314 Will OWCP pay for the services of an attendant?
Yes, OWCP will pay for the services of an attendant up to a maximum
of $1,500 per month, where the need for such services has been
medically documented. In the exercise of the discretion afforded by 5
U.S.C. 8111(a), the Director has determined that, except where payments
were being made prior to January 4, 1999, direct payments to the
claimant to cover such services will no longer be made. Rather, the
cost of providing attendant services will be paid under section 8103 of
the Act, and medical bills for these services will be considered under
Sec. 10.801. This decision is based on the following factors:
(a) The additional payments authorized under section 8111(a) should
not be necessary since OWCP will authorize payment for personal care
services under 5 U.S.C. 8103, 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.
(b) A home health aide, licensed practical nurse, or similarly
trained individual is better able to provide quality personal care
services, including assistance in feeding, bathing, and using the
toilet. In the past, provision of supplemental compensation directly to
injured employees may have encouraged family members to take on these
responsibilities even though they may not have been trained to provide
such services. By paying for the services under section 8103, OWCP can
better determine whether the services provided are necessary and/or
adequate to meet the needs of the injured employee. In addition, a
system requiring the personal care provider to submit a bill to OWCP,
where the amount billed will be subject to OWCP's fee schedule, will
result in greater fiscal accountability.
Sec. 10.315 Will OWCP pay for transportation to obtain medical
treatment?
The employee is entitled to reimbursement of reasonable and
necessary expenses, including transportation needed to obtain
authorized medical services, appliances or supplies. To determine what
is a reasonable distance to travel, OWCP will consider the availability
of services,
[[Page 65319]]
the employee's condition, and the means of transportation. Generally,
25 miles from the place of injury, the work site, or the employee's
home, is considered a reasonable distance to travel. The standard form
designated for Federal employees to claim travel expenses should be
used to seek reimbursement under this section.
Sec. 10.316 After selecting a treating physician, may an employee
choose to be treated by another physician instead?
(a) When the physician originally selected to provide treatment for
a work-related injury 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 conditions like the work-related one, or
the need for a new physician when an employee has moved. The employer
may not authorize a change of physicians.
Directed Medical Examinations
Sec. 10.320 Can OWCP require an employee to be examined by another
physician?
OWCP sometimes needs a second opinion from a medical specialist.
The employee must submit to examination by a qualified physician as
often and at such times and places as OWCP considers reasonably
necessary. The employee may have a qualified physician, paid by him or
her, present at such examination. However, the employee is not entitled
to have anyone else present at the 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. Also, OWCP may send a case file for second opinion review
where actual examination is not needed, or where the employee is
deceased.
Sec. 10.321 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, OWCP will
base its determination of entitlement on that medical conclusion (see
Sec. 10.502). A difference in medical opinion sufficient to be
considered a conflict occurs when two reports of virtually equal weight
and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB
1010 (1980)).
(b) If a conflict exists between the medical opinion of the
employee's physician and the medical opinion of either a second opinion
physician or an OWCP medical adviser or consultant, OWCP shall appoint
a third physician to make an examination (see Sec. 10.502). This is
called a referee examination. OWCP will select a physician who is
qualified in the appropriate specialty and who has had no prior
connection with the case. The employee is not entitled to have anyone
present at the 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.
Also, a case file may be sent for referee medical review where there is
no need for an actual examination, or where the employee is deceased.
Sec. 10.322 Who pays for second opinion and referee examinations?
OWCP will pay second opinion and referee medical specialists
directly. OWCP will reimburse the employee all necessary and reasonable
expenses incident to such an examination, including transportation
costs and actual wages lost for the time needed to submit to an
examination required by OWCP.
Sec. 10.323 What are the penalties for failing to report for or
obstructing a second opinion or referee examination?
If an employee refuses to submit to or in any way obstructs an
examination required by OWCP, his or her right to compensation under
the FECA is suspended until such refusal or obstruction stops. The
action of the employee's representative is considered to be the action
of the employee for purposes of this section. The employee will forfeit
compensation otherwise paid or payable under the FECA for the period of
the refusal or obstruction, and any compensation already paid for that
period will be declared an overpayment and will be subject to recovery
pursuant to 5 U.S.C. 8129.
Sec. 10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
The employer may have authority independent of the FECA to require
the employee to undergo a medical examination to determine whether he
or she meets the medical requirements of the position held or can
perform the duties of that position. Nothing in the FECA or in this
part affects such authority. However, no agency-required examination or
related activity shall interfere with the employee's initial choice of
physician or the provision of any authorized examination or treatment,
including the issuance of Form CA-16.
Medical Reports
Sec. 10.330 What are the requirements for medical reports?
In all cases reported to OWCP, a medical report from the attending
physician is required. This report should include:
(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 but not due to the
claimed injury;
(h) The treatment given or recommended for the claimed injury;
(i) The physician's opinion, with medical reasons, as to causal
relationship between the diagnosed condition(s) and the factors or
conditions of the employment;
(j) The extent of disability affecting the employee's ability to
work due to the injury;
(k) The prognosis for recovery; and
(l) All other material findings.
Sec. 10.331 How and when should the medical report be submitted?
(a) Form CA-16 may be used for the initial medical report; Form CA-
20 may be used for the initial report and for subsequent reports; and
Form CA-20a may be used where continued compensation is claimed. Use of
medical report forms is not required, however. The report may also be
made in narrative form on the physician's letterhead stationery. 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. (See also Sec. 10.210.) The employer may
request a copy of the report from OWCP. The employer should use Form
CA-17 to obtain interim reports concerning the duty status of an
employee with a disabling injury.
[[Page 65320]]
Sec. 10.332 What additional medical information will OWCP require to
support continuing payment of benefits?
In all cases of serious injury or disease, especially those
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 condition accepted by OWCP, a prognosis, a
description of work limitations, if any, and the physician's opinion as
to the continuing causal relationship between the employee's condition
and factors of his or her Federal employment.
Sec. 10.333 What additional medical information will OWCP require to
support a claim for a schedule award?
To support a claim for a schedule award, a medical report must
contain accurate measurements of the function of the organ or member,
in accordance with the American Medical Association's Guides to the
Evaluation of Permanent Impairment. These measurements may include: The
actual degree of loss of active or passive motion or deformity; the
amount of atrophy; the decrease, if any, in strength; the disturbance
of sensation; and pain due to nerve impairment.
Medical Bills
Sec. 10.335 How are medical bills submitted?
Usually, medical providers submit bills directly to OWCP. The rules
for submitting and paying bills are stated in subpart I of this part.
An employee claiming reimbursement of medical expenses should submit an
itemized bill as described in Sec. 10.802.
Sec. 10.336 What are the time frames for submitting bills?
To be considered for payment, bills 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, whichever is later.
Sec. 10.337 If OWCP reimburses an employee only partially 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 (see Sec. 10.805). The employee may be only
partially reimbursed for 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, OWCP shall advise the employee 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 may request reconsideration of
the fee determination as set forth in Sec. 10.812.
(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
which OWCP allows, the employee should submit documentation of the
attempt to obtain such refund or credit to OWCP. OWCP may make
reasonable reimbursement to the employee after reviewing the facts and
circumstances of the case.
Subpart E--Compensation and Related Benefits
Compensation for Disability and Impairment
Sec. 10.400 What is total disability?
(a) Permanent total disability is presumed to result from the loss
of use of both hands, both arms, both feet, or both legs, or the loss
of sight of both eyes. However, the presumption of permanent total
disability as a result of such loss may be rebutted by evidence to the
contrary, such as evidence of continued ability to work and to earn
wages despite the loss.
(b) Temporary total disability is defined as the inability to
return to the position held at the time of injury or earn equivalent
wages, or to perform other gainful employment, due to the work-related
injury. Except as presumed under paragraph (a) of this section, an
employee's disability status is always considered temporary pending
return to work.
Sec. 10.401 When and how is compensation for total disability paid?
(a) Compensation is payable when the employee starts to lose pay if
the injury causes permanent disability or if pay loss continues for
more than 14 calendar days. Otherwise, compensation is payable on the
fourth day after pay stops. Compensation may not be paid while an
injured employee is in a continuation of pay status or receives pay for
leave.
(b) Compensation for total disability is payable at the rate of
66\2/3\ percent of the pay rate if the employee has no dependents, or
75 percent of the pay rate if the employee has at least one dependent.
(``Dependents'' are defined at 5 U.S.C. 8110(a).)
Sec. 10.402 What is partial disability?
An injured employee who cannot return to the position held at the
time of injury (or earn equivalent wages) due to the work-related
injury, but who is not totally disabled for all gainful employment, is
considered to be partially disabled.
Sec. 10.403 When and how is compensation for partial disability paid?
(a) 5 U.S.C. 8115 outlines how compensation for partial disability
is determined. If the employee has actual earnings which fairly and
reasonably represent his or her wage-earning capacity, those earnings
may form the basis for payment of compensation for partial disability.
(See Secs. 10.500 through 10.520 concerning return to work.) If the
employee's actual earnings do not fairly and reasonably represent his
or her wage-earning capacity, or if the employee has no actual
earnings, OWCP uses the factors stated in 5 U.S.C. 8115 to select a
position which represents his or her wage-earning capacity. However,
OWCP will not secure employment for the employee in the position
selected for establishing a wage-earning capacity.
(b) Compensation for partial disability is payable as a percentage
of the difference between the employee's pay rate for compensation
purposes and the employee's wage-earning capacity. The percentage is
66\2/3\ percent of this difference if the employee has no dependents,
or 75 percent of this difference if the employee has at least one
dependent.
(c) The formula which OWCP uses to compute the compensation payable
for partial disability employs the following terms: Pay rate for
compensation purposes, which is defined in Sec. 10.5(s) of this part;
current pay rate, which means the salary or wages for the job held at
the time of injury at the time of the determination; and earnings,
which means the employee's actual earnings, or the salary or pay rate
of the position selected by OWCP as representing the employee's wage-
earning capacity.
(d) The employee's wage-earning capacity in terms of percentage is
computed by dividing the employee's earnings by the current pay rate.
The comparison of earnings and ``current'' pay rate for the job held at
the time of injury need not be made as of the beginning of partial
disability. OWCP may use any convenient date for making the comparison
as long as both wage rates are in effect on the date used for
comparison.
(e) The employee's wage-earning capacity in terms of dollars is
computed by first multiplying the pay rate for compensation purposes by
the
[[Page 65321]]
percentage of wage-earning capacity. The resulting dollar amount is
then subtracted from the pay rate for compensation purposes to obtain
the employee's loss of wage-earning capacity.
Sec. 10.404 When and how is compensation for a schedule impairment
paid?
Compensation is provided for specified periods of time for the
permanent loss or loss of use of certain members, organs and functions
of the body. Such loss or loss of use is known as permanent impairment.
Compensation for proportionate periods of time is payable for partial
loss or loss of use of each member, organ or function. OWCP evaluates
the degree of impairment to schedule members, organs and functions as
defined in 5 U.S.C. 8107 according to the standards set forth in the
specified (by OWCP) edition of the American Medical Association's
Guides to the Evaluation of Permanent Impairment.
(a) 5 U.S.C. 8107(c) provides a list of schedule members. Pursuant
to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary has
added the following organs to the compensation schedule for injuries
that were sustained on or after September 7, 1974:
------------------------------------------------------------------------
Member Weeks
------------------------------------------------------------------------
Breast (one)................................................. 52
Kidney (one)................................................. 156
Larynx....................................................... 160
Lung (one)................................................... 156
Penis........................................................ 205
Testicle (one)............................................... 52
Tongue....................................................... 160
Ovary (one).................................................. 52
Uterus/cervix and vulva/vagina............................... 205
------------------------------------------------------------------------
(b) Compensation for schedule awards is payable at 66\2/3\ percent
of the employee's pay, or 75 percent of the pay when the employee has
at least one dependent.
(c) The period of compensation payable under 5 U.S.C. 8107(c) shall
be reduced by the period of compensation paid or payable under the
schedule for an earlier injury if:
(1) Compensation in both cases is for impairment of the same member
or function or different parts of the same member or function, or for
disfigurement; and
(2) OWCP finds that compensation payable for the later impairment
in whole or in part would duplicate the compensation payable for the
pre-existing impairment.
(d) Compensation not to exceed $3,500 may be paid for serious
disfigurement of the face, head or neck which is likely to handicap a
person in securing or maintaining employment.
Sec. 10.405 Who is considered a dependent in a claim based on
disability or impairment?
(a) Dependents include a wife or husband; an unmarried child under
18 years of age; an unmarried child over 18 who is incapable of self-
support; a student, until he or she reaches 23 years of age or
completes four years of school beyond the high school level; or a
wholly dependent parent.
(b) Augmented compensation payable for an unmarried child, which
would otherwise terminate when the child reached the age of 18, may be
continued while the child is a student as defined in 5 U.S.C. 8101(17).
Sec. 10.406 What are the maximum and minimum rates of compensation in
disability cases?
(a) Compensation for total or partial disability may not exceed 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule. (Basic monthly pay does not include locality
adjustments.) However, this limit does not apply to disability
sustained in the performance of duty which was due to an assault which
occurred during an attempted assassination of a Federal official
described under 10 U.S.C. 351(a) or 1751(a).
(b) Compensation for total disability may not be less than 75
percent of the basic monthly pay of the first step of grade 2 of the
General Schedule or actual pay, whichever is less. (Basic monthly pay
does not include locality adjustments.)
Compensation for Death
Sec. 10.410 Who is entitled to compensation in case of death, and what
are the rates of compensation payable in death cases?
(a) If there is no child entitled to compensation, the employee's
surviving spouse will receive compensation equal to 50 percent of the
employee's monthly pay until death or remarriage before reaching age
55. Upon remarriage, the surviving spouse will be paid a lump sum equal
to 24 times the monthly compensation payment (excluding compensation
payable on account of another individual) to which the surviving spouse
was entitled immediately before the remarriage. If remarriage occurs at
age 55 or older, the lump-sum payment will not be paid and compensation
will continue until death.
(b) If there is a child entitled to compensation, the compensation
for the surviving spouse will equal 45 percent of the employee's
monthly pay plus 15 percent for each child, but the total percentage
may not exceed 75 percent.
(c) If there is a child entitled to compensation and no surviving
spouse, compensation for one child will equal 40 percent of the
employee's monthly pay. Fifteen percent will be awarded for each
additional child, not to exceed 75 percent, the total amount to be
shared equally among all children.
(d) If there is no child or surviving spouse entitled to
compensation, the parents will receive compensation equal to 25 percent
of the employee's monthly pay if one parent was wholly dependent on the
employee at the time of death and the other was not dependent to any
extent, or 20 percent each if both were wholly dependent on the
employee, or a proportionate amount in the discretion of the Director
if one or both were partially dependent on the employee. If there is a
child or surviving spouse entitled to compensation, the parents will
receive so much of the compensation described in the preceding sentence
as, when added to the total percentages payable to the surviving spouse
and children, will not exceed a total of 75 percent of the employee's
monthly pay.
(e) If there is no child, surviving spouse or dependent parent
entitled to compensation, the brothers, sisters, grandparents and
grandchildren will receive compensation equal to 20 percent of the
employee's monthly pay to such dependent if one was wholly dependent on
the employee at the time of death; or 30 percent if more than one was
wholly dependent, divided among such dependents equally; or 10 percent
if no one was wholly dependent but one or more was partly dependent,
divided among such dependents equally. If there is a child, surviving
spouse or dependent parent entitled to compensation, the brothers,
sisters, grandparents and grandchildren will receive so much of the
compensation described in the preceding sentence as, when added to the
total percentages payable to the children, surviving spouse and
dependent parents, will not exceed a total of 75 percent of the
employee's monthly pay.
(f) A child, brother, sister or grandchild may be entitled to
receive death benefits until death, marriage, or reaching age 18.
Regarding entitlement after reaching age 18, refer to Sec. 10.417 of
these regulations.
Sec. 10.411 What are the maximum and minimum rates of compensation in
death cases?
(a) Compensation for death may not exceed the employee's pay or 75
percent of the basic monthly pay of the highest
[[Page 65322]]
step of grade 15 of the General Schedule, except that compensation may
exceed the employee's basic monthly pay if such excess is created by
authorized cost-of-living increases. (Basic monthly pay does not
include locality adjustments.) However, the maximum limit does not
apply when the death occurred during an assassination of a Federal
official described under 18 U.S.C. 351(a) or 18 U.S.C. 1751(a).
(b) Compensation for death is computed on a minimum pay rate equal
to the basic monthly pay of an employee at the first step of grade 2 of
the General Schedule. (Basic monthly pay does not include locality
adjustments.)
Sec. 10.412 Will OWCP pay the costs of burial and transportation of
the remains?
In a case accepted for death benefits, OWCP will pay up to $800 for
funeral and burial expenses. When an employee's home is within the
United States and the employee dies outside the United States, or away
from home or the official duty station, an additional amount may be
paid for transporting the remains to the employee's home. An additional
amount of $200 is paid to the personal representative of the decedent
for reimbursement of the costs of terminating the decedent's status as
an employee of the United States.
Sec. 10.413 If a person dies while receiving a schedule award, to whom
is the balance of the schedule award payable?
The circumstances under which the balance of a schedule award may
be paid to an employee's survivors are described in 5 U.S.C. 8109.
Therefore, if there is no surviving spouse or child, OWCP will pay
benefits as follows:
(a) To the parent, or parents, wholly dependent for support on the
decedent in equal shares with any wholly dependent brother, sister,
grandparent or grandchild;
(b) To the parent, or parents, partially dependent for support on
the decedent in equal shares when there are no wholly dependent
brothers, sisters, grandparents or grandchildren (or other wholly
dependent parent); and
(c) To the parent, or parents, partially dependent upon the
decedent, 25 percent of the amount payable, shared equally, and the
remaining 75 percent to any wholly dependent brother, sister,
grandparent or grandchild (or wholly dependent parent), shared equally.
Sec. 10.414 What reports of dependents are needed in death cases?
If a beneficiary is receiving compensation benefits on account of
an employee's death, OWCP will ask him or her to complete a report once
each year on Form CA-12. The report requires the beneficiary to note
changes in marital status and dependents. If the beneficiary fails to
submit the form (or an equivalent written statement) within 30 days of
the date of request, OWCP shall suspend compensation until the
requested form or equivalent written statement is received. The
suspension will include compensation payable for or on behalf of
another person (for example, compensation payable to a widow on behalf
of a child). When the form or statement is received, compensation will
be reinstated at the appropriate rate retroactive to the date of
suspension, provided the beneficiary is entitled to such compensation.
Sec. 10.415 What must a beneficiary do if the number of beneficiaries
decreases?
The circumstances under which compensation on account of death
shall be terminated are described in 5 U.S.C. 8133(b). A beneficiary in
a claim for death benefits should promptly notify OWCP of any event
which would affect his or her entitlement to continued compensation.
The terms ``marriage'' and ``remarriage'' include common-law marriage
as recognized and defined by State law in the State where the
beneficiary resides. If a beneficiary, or someone acting on his or her
behalf, receives a check which includes payment of compensation for any
period after the date when entitlement ended, he or she must promptly
return the check to OWCP.
Sec. 10.416 How does a change in the number of beneficiaries affect
the amount of compensation paid to the other beneficiaries?
If compensation to a beneficiary is terminated, the amount of
compensation payable to one or more of the remaining beneficiaries may
be reapportioned. Similarly, the birth of a posthumous child may result
in a reapportionment of the amount of compensation payable to other
beneficiaries. The parent, or someone acting on the child's behalf,
shall promptly notify OWCP of the birth and submit a copy of the birth
certificate.
Sec. 10.417 What reports are needed when compensation payments
continue for children over age 18?
(a) Compensation payable on behalf of a child, brother, sister, or
grandchild, which would otherwise end when the person reaches 18 years
of age, shall be continued if and for so long as he or she is not
married and is either a student as defined in 5 U.S.C. 8101(17), or
physically or mentally incapable of self-support.
(b) At least twice each year, OWCP will ask a beneficiary receiving
compensation based on the student status of a dependent to provide
proof of continuing entitlement to such compensation, including
certification of school enrollment.
(c) Likewise, at least twice each year, OWCP will ask a beneficiary
or legal guardian receiving compensation based on a dependent's
physical or mental inability to support himself or herself to submit a
medical report verifying that the dependent's medical condition
persists and that it continues to preclude self-support.
Adjustments to Compensation
Sec. 10.420 How are cost-of-living adjustments applied?
(a) In cases of disability, a beneficiary is eligible for cost-of-
living adjustments under 5 U.S.C. 8146a where injury-related disability
began more than one year prior to the date the cost-of-living
adjustment took effect. The employee's use of continuation of pay as
provided by 5 U.S.C. 8118, or of sick or annual leave, during any part
of the period of disability does not affect the computation of the one-
year period.
(b) Where an injury does not result in disability but compensation
is payable for permanent impairment of a covered member, organ or
function of the body, a beneficiary is eligible for cost-of-living
adjustments under 5 U.S.C. 8146a where the award for such impairment
began more than one year prior to the date the cost-of-living
adjustment took effect.
(c) In cases of recurrence of disability, where the pay rate for
compensation purposes is the pay rate at the time disability recurs, a
beneficiary is eligible for cost-of-living adjustments under 5 U.S.C.
8146a where the effective date of that pay rate began more than one
year prior to the date the cost-of living adjustment took effect.
(d) In cases of death, entitlement to cost-of-living adjustments
under 5 U.S.C. 8146a begins with the first such adjustment occurring
more than one year after the date of death. However, if the death was
preceded by a period of injury-related disability, compensation payable
to the survivors will be increased by the same percentages as the cost-
of-living adjustments paid or payable to the deceased employee for the
period of disability, as well as by subsequent cost-of-living
adjustments to which the survivors would otherwise be entitled.
[[Page 65323]]
Sec. 10.421 May a beneficiary receive other kinds of payments from the
Federal Government concurrently with compensation?
(a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive
wage-loss compensation concurrently with a Federal retirement or
survivor annuity. The beneficiary must elect the benefit that he or she
wishes to receive, and the election, once made, is revocable.
(b) An employee may receive compensation concurrently with military
retired pay, retirement pay, retainer pay or equivalent pay for service
in the Armed Forces or other uniformed services, subject to the
reduction of such pay in accordance with 5 U.S.C. 5532(b).
(c) An employee may not receive compensation for total disability
concurrently with severance pay or separation pay. However, an employee
may concurrently receive compensation for partial disability or
permanent impairment to a schedule member, organ or function with
severance pay or separation pay.
(d) Pursuant to 5 U.S.C. 8116(d), a beneficiary may receive
compensation under the FECA for either the death or disability of an
employee concurrently with benefits under title II of the Social
Security Act on account of the age or death of such employee. However,
this provision of the FECA also requires OWCP to reduce the amount of
any such compensation by the amount of any Social Security Act benefits
that are attributable to the Federal service of the employee.
(e) To determine the employee's entitlement to compensation, OWCP
may require an employee to submit an affidavit or statement as to the
receipt of any Federally funded or Federally assisted benefits. If an
employee fails to submit such affidavit or statement within 30 days of
the date of the request, his or her right to compensation shall be
suspended until such time as the requested affidavit or statement is
received. At that time compensation will be reinstated retroactive to
the date of suspension provided the employee is entitled to such
compensation.
Sec. 10.422 May compensation payments be issued in a lump sum?
(a) In exercise of the discretion afforded under 5 U.S.C. 8135(a),
OWCP has determined that lump-sum payments will not be made to persons
entitled to wage-loss benefits (that is, those payable under 5 U.S.C.
8105 and 8106). Therefore, when OWCP receives requests for lump-sum
payments for wage-loss benefits, OWCP will not exercise further
discretion in the matter. This determination is based on several
factors, including:
(1) The purpose of the FECA, which is to replace lost wages;
(2) The prudence of providing wage-loss benefits on a regular,
recurring basis; and
(3) The high cost of the long-term borrowing that is needed to pay
out large lump sums.
(b) However, a lump-sum payment may be made to an employee entitled
to a schedule award under 5 U.S.C. 8107 where OWCP determines that such
a payment is in the employee's best interest. Lump-sum payments of
schedule awards generally will be considered in the employee's best
interest only where the employee does not rely upon compensation
payments as a substitute for lost wages (that is, the employee is
working or is receiving annuity payments). An employee possesses no
absolute right to a lump-sum payment of benefits payable under 5 U.S.C.
8107.
(c) Lump-sum payments to surviving spouses are addressed in 5
U.S.C. 8135(b).
Sec. 10.423 May compensation payments be assigned to, or attached by,
creditors?
(a) As a general rule, compensation and claims for compensation are
exempt from the claims of private creditors. This rule does not apply
to claims submitted by Federal agencies. Further, any attempt by a FECA
beneficiary to assign his or her claim is null and void. However,
pursuant to provisions of the Social Security Act, 42 U.S.C. 659, and
regulations issued by the Office of Personnel Management (OPM) at 5 CFR
part 581, FECA benefits, including survivor's benefits, may be
garnished to collect overdue alimony and child support payments.
(b) Garnishment for child support and alimony may be requested by
providing a copy of the State agency or court order to the district
office handling the FECA claim.
Sec. 10.424 May someone other than the beneficiary be designated to
receive compensation payments?
A beneficiary may be incapable of managing or directing the
management of his or her benefits because of a mental or physical
disability, or because of legal incompetence, or because he or she is
under 18 years of age. In this situation, absent the appointment of a
guardian or other party to manage the financial affairs of the claimant
by a court or administrative body authorized to do so, OWCP in its sole
discretion may approve a person to serve as the representative payee
for funds due the beneficiary.
Sec. 10.425 May compensation be claimed for periods of restorable
leave?
The employee may claim compensation for periods of annual and sick
leave which are restorable in accordance with the rules of the
employing agency. Forms CA-7a and CA-7b are used for this purpose.
Overpayments
Sec. 10.430 How does OWCP notify an individual of a payment made?
(a) In addition to providing narrative descriptions to recipients
of benefits paid or payable, OWCP includes on each periodic check a
clear indication of the period for which payment is being made. A form
is sent to the recipient with each supplemental check which states the
date and amount of the payment and the period for which payment is
being made. For payments sent by electronic funds transfer (EFT), 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
beneficiary will be presumed to have received the notice of payment,
whether mailed or transmitted electronically.
Sec. 10.431 What does OWCP do when an overpayment is identified?
Before seeking to recover an overpayment or adjust benefits, OWCP
will advise the beneficiary in writing that:
(a) The overpayment exists, and the amount of overpayment;
(b) A preliminary finding shows either that the individual was or
was not at fault in the creation of the overpayment;
(c) He or she has the right to inspect and copy Government records
relating to the overpayment; and
(d) He or she has the right to present 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.
Sec. 10.432 How can an individual present evidence to OWCP in response
to a preliminary notice of an overpayment?
The individual may present this evidence to OWCP in writing or at a
pre-recoupment hearing. The evidence must
[[Page 65324]]
be presented or the hearing requested within 30 days of the date of the
written notice of overpayment. Failure to request the hearing within
this 30-day time period shall constitute a waiver of that right.
Sec. 10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
(a) OWCP may consider waiving an overpayment only if the individual
to whom it was made was not at fault in accepting or creating the
overpayment. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she
receives 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 an individual 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
individual's capacity to realize that he or she is being overpaid.
Sec. 10.434 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 FECA (see Sec. 10.436), or
(b) Adjustment or recovery of the overpayment would be against
equity and good conscience (see Sec. 10.437).
Sec. 10.435 Is an individual responsible for an overpayment that
resulted from an error made by OWCP or another Government agency?
(a) The fact that OWCP may have erred in making the overpayment, or
that the overpayment may have resulted from an error by another
Government agency, does not by itself relieve the individual who
received the overpayment from liability for repayment if the individual
also was at fault in accepting the overpayment.
(b) However, OWCP may find that the individual was not at fault if
failure to report an event affecting compensation benefits, or
acceptance of an incorrect payment, occurred because:
(1) The individual relied on misinformation given in writing by
OWCP (or by another Government agency which he or she had reason to
believe was connected with the administration of benefits) as to the
interpretation of a pertinent provision of the FECA or its regulations;
or
(2) OWCP erred in calculating cost-of-living increases, schedule
award length and/or percentage of impairment, or loss of wage-earning
capacity.
Sec. 10.436 Under what circumstances would recovery of an overpayment
defeat the purpose of the FECA?
Recovery of an overpayment will defeat the purpose of the FECA if
such recovery would cause hardship to a currently or formerly entitled
beneficiary because:
(a) The beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation
benefits) to meet current ordinary and necessary living expenses; and
(b) The beneficiary's assets do not exceed a specified amount as
determined by OWCP from data furnished by the Bureau of Labor
Statistics. A higher amount is specified for a beneficiary with one or
more dependents.
Sec. 10.437 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 any individual who received an overpayment
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 any individual, 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 individual'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. Donations to charitable
causes or gratuitous transfers of funds to other individuals are not
considered relinquishments of valuable rights.
(2) To establish that an individual'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.
Sec. 10.438 Can OWCP require the individual who received the
overpayment to submit additional financial information?
(a) The individual who received 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 FECA, or be against
equity and good conscience. This information will also be used to
determine the repayment schedule, if necessary.
(b) Failure to submit the 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.
Sec. 10.439 What is addressed at a pre-recoupment hearing?
At a pre-recoupment hearing, the OWCP representative will consider
all issues in the claim on which a formal decision has been issued.
Such a hearing will thus fulfill OWCP's obligation to provide pre-
recoupment rights and a hearing under 5 U.S.C. 8124(b). Pre-recoupment
hearings shall be conducted in exactly the same manner as provided in
Sec. 10.615 through Sec. 10.622.
Sec. 10.440 How does OWCP communicate its final decision concerning
recovery of an overpayment, and what appeal right accompanies it?
(a) OWCP will send a copy of the final decision to the individual
from whom recovery is sought; his or her representative, if any; and
the employing agency.
(b) The only review of a final decision concerning an overpayment
is to the Employees' Compensation Appeals Board. The provisions of 5
U.S.C. 8124(b) (concerning hearings) and 5 U.S.C. 8128(a) (concerning
reconsiderations) do not apply to such a decision.
Sec. 10.441 How are overpayments collected?
(a) When an overpayment has been made to an individual who is
entitled to further payments, the individual shall refund to OWCP the
amount of the
[[Page 65325]]
overpayment as soon as the error is discovered or his or her attention
is called to same. If no refund is made, OWCP shall decrease later
payments of compensation, taking into account the probable extent of
future payments, the rate of compensation, the financial circumstances
of the individual, and any other relevant factors, so as to minimize
any hardship. Should the individual die before collection has been
completed, collection shall be made by decreasing later payments, if
any, payable under the FECA with respect to the individual's death.
(b) When an overpayment has been made to an individual who is not
entitled to further payments, the individual 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)
and may be reported to the Internal Revenue Service as income. If the
individual fails to make such refund, OWCP may recover the same 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 F--Continuing Benefits
Rules and Evidence
Sec. 10.500 What are the basic rules governing continuing receipt of
compensation benefits and return to work?
(a) Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is
available only for any periods during which an employee's work-related
medical condition prevents him or her from earning the wages earned
before the work-related injury. Payment of medical benefits is
available for all treatment necessary due to a work-related medical
condition.
(b) Each disabled employee is obligated to perform such work as he
or she can, and OWCP's goal is to return each disabled employee to
suitable work as soon as he or she is medically able. In determining
what constitutes ``suitable work'' for a particular disabled employee,
OWCP considers the employee's current physical limitations, whether the
work is available within the employee's demonstrated commuting area,
the employee's qualifications to perform such work, and other relevant
factors. (See Sec. 10.508 with respect to the payment of relocation
expenses.)
Sec. 10.501 What medical evidence is necessary to support continuing
receipt of compensation benefits?
(a) The employee is responsible for providing sufficient medical
evidence to justify payment of any compensation sought.
(1) To support payment of continuing compensation, narrative
medical evidence must be submitted whenever OWCP requests it but
ordinarily not less than once a year. It must contain a physician's
rationalized opinion as to whether the specific period of alleged
disability is causally related to the employee's accepted injury or
illness.
(2) The physician's opinion must be based on the facts of the case
and the complete medical background of the employee, must be one of
reasonable medical certainty and must include objective findings in
support of its conclusions. Subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing
compensation. Likewise, medical limitations based solely on the fear of
a possible future injury are also not sufficient to support payment of
continuing compensation. See Sec. 10.330 for a fuller discussion of
medical evidence.
(b) OWCP may require any kind of non-invasive testing to determine
the employee's functional capacity. Failure to undergo such testing
will result in a suspension of benefits. In addition, OWCP may direct
the employee to undergo a second opinion or referee examination in any
case it deems appropriate (see Secs. 10.320 and 10.321).
Sec. 10.502 How does OWCP evaluate evidence in support of continuing
receipt of compensation benefits?
In considering the medical and factual evidence, OWCP will weigh
the probative value of the attending physician's report, any second
opinion physician's report, any other medical reports, or any other
evidence in the file. If OWCP determines that the medical evidence
supporting one conclusion is more consistent, logical, and well-
reasoned than evidence supporting a contrary conclusion, OWCP will use
the conclusion that is supported by the weight of the medical evidence
as the basis for awarding or denying further benefits. If medical
reports that are equally well-reasoned support inconsistent
determinations of an issue under consideration, OWCP will direct the
employee to undergo a referee examination to resolve the issue. The
results of the referee examination will be given special weight in
determining the issue.
Sec. 10.503 Under what circumstances may OWCP reduce or terminate
compensation benefits?
Once OWCP has advised the employee that it has accepted a claim and
has either approved continuation of pay or paid medical benefits or
compensation, benefits will not be terminated or reduced unless the
weight of the evidence establishes that:
(a) The disability for which compensation was paid has ceased;
(b) The disabling condition is no longer causally related to the
employment;
(c) The employee is only partially disabled;
(d) The employee has returned to work;
(e) The beneficiary was convicted of fraud in connection with a
claim under the FECA, or the beneficiary was incarcerated based on any
felony conviction; or
(f) OWCP's initial decision was in error.
Return to Work--Employer's Responsibilities
Sec. 10.505 What actions must the employer take?
Upon authorizing medical care, the employer should advise the
employee in writing as soon as possible of his or her obligation to
return to work under Sec. 10.210 and as defined in this subpart. The
term ``return to work'' as used in this subpart is not limited to
returning to work at the employee's normal worksite or usual position,
but may include returning to work at other locations and in other
positions. In general, the employer should make all reasonable efforts
to place the employee in his or her former or an equivalent position,
in accordance with 5 U.S.C. 8151(b)(2), if the employee has fully
recovered after one year. The Office of Personnel Management (not OWCP)
administers this provision.
(a) Where the employer has specific alternative positions available
for partially disabled employees, the employer should advise the
employee in writing of the specific duties and physical requirements of
those positions.
(b) Where the employer has no specific alternative positions
available for an employee who can perform restricted or limited duties,
the employer should advise the employee of any accommodations the
agency can make to accommodate the employee's limitations due to the
injury.
[[Page 65326]]
Sec. 10.506 May the employer monitor the employee's medical care?
The employer may monitor the employee's medical progress and duty
status by obtaining periodic medical reports. Form CA-17 is usually
adequate for this purpose. To aid in returning an injured employee to
suitable employment, the employer may also contact the employee's
physician in writing concerning the work limitations imposed by the
effects of the injury and possible job assignments. (However, the
employer shall not contact the physician by telephone or through
personal visit.) When such contact is made, the employer shall send a
copy of any such correspondence to OWCP and the employee, as well as a
copy of the physician's response when received. The employer may also
contact the employee at reasonable intervals to request periodic
medical reports addressing his or her ability to return to work.
Sec. 10.507 How should the employer make an offer of suitable work?
Where the attending physician or OWCP notifies the employer in
writing that the employee is partially disabled (that is, the employee
can perform some work but not return to the position held at date of
injury), the employer should act as follows:
(a) If the employee can perform in a specific alternative position
available in the agency, and the employer has advised the employee in
writing of the specific duties and physical requirements, the employer
shall notify the employee in writing immediately of the date of
availability.
(b) If the employee can perform restricted or limited duties, the
employer should determine whether such duties are available or whether
an existing job can be modified. If so, the employer shall advise the
employee in writing of the duties, their physical requirements and
availability.
(c) The employer must make any job offer in writing. However, the
employer may make a job offer verbally as long as it provides the job
offer to the employee in writing within two business days of the verbal
job offer.
(d) The offer must include a description of the duties of the
position, the physical requirements of those duties, and the date by
which the employee is either to return to work or notify the employer
of his or her decision to accept or refuse the job offer. The employer
must send a complete copy of any job offer to OWCP when it is sent to
the employee.
Sec. 10.508 May relocation expenses be paid for an employee who would
need to move to accept an offer of reemployment?
If possible, the employer should offer suitable reemployment in the
location where the employee currently resides. If this is not
practical, the employer may offer suitable reemployment at the
employee's former duty station or other location. Where the distance
between the location of the offered job and the location where the
employee currently resides is at least 50 miles, OWCP may pay such
relocation expenses as are considered reasonable and necessary if the
employee has been terminated from the agency's employment rolls and
would incur relocation expenses by accepting the offered reemployment.
OWCP may also pay such relocation expenses when the new employer is
other than a Federal employer. OWCP will notify the employee that
relocation expenses are payable if it makes a finding that the job is
suitable. To determine whether a relocation expense is reasonable and
necessary, OWCP shall use as a guide the Federal travel regulations for
permanent changes of duty station.
Sec. 10.509 If an employee's light-duty job is eliminated due to
downsizing, what is the effect on compensation?
(a) In general, an employee will not be considered to have
experienced a compensable recurrence of disability as defined in
Sec. 10.5(x) merely because his or her employer has eliminated the
employee's light-duty position in a reduction-in-force or some other
form of downsizing. When this occurs, OWCP will determine the
employee's wage-earning capacity based on his or her actual earnings in
such light-duty position if this determination is appropriate on the
basis that such earnings fairly and reasonably represent the employee's
wage-earning capacity and such a determination has not already been
made.
(b) For the purposes of this section only, a light-duty position
means a classified position to which the injured employee has been
formally reassigned that conforms to the established physical
limitations of the injured employee and for which the employer has
already prepared a written position description such that the position
constitutes ``regular'' Federal employment. In the absence of a
``light-duty position'' as described in this paragraph, OWCP will
assume that the employee was instead engaged in non-competitive
employment which does not represent the employee's wage-earning
capacity, i.e., work of the type provided to injured employees who
cannot otherwise be employed by the Federal Government or in any well-
known branch of the general labor market.
Return to Work--Employee's Responsibilities
Sec. 10.515 What actions must the employee take with respect to
returning to work?
(a) If an employee can resume regular Federal employment, he or she
must do so. No further compensation for wage loss is payable once the
employee has recovered from the work-related injury to the extent that
he or she can perform the duties of the position held at the time of
injury, or earn equivalent wages.
(b) If an employee cannot return to the job held at the time of
injury due to partial disability from the effects of the work-related
injury, but has recovered enough to perform some type of work, he or
she must seek work. In the alternative, the employee must accept
suitable work offered to him or her. (See Sec. 10.500 for a definition
of ``suitable work''.) This work may be with the original employer or
through job placement efforts made by or on behalf of OWCP.
(c) If the employer has advised an employee in writing that
specific alternative positions exist within the agency, the employee
shall provide the description and physical requirements of such
alternate positions to the attending physician and ask whether and when
he or she will be able to perform such duties.
(d) If the employer has advised an employee that it is willing to
accommodate his or her work limitations, the employee shall so advise
the attending physician and ask him or her to specify the limitations
imposed by the injury. The employee is responsible for advising the
employer immediately of these limitations.
(e) From time to time, OWCP may require the employee to report his
or her efforts to obtain suitable employment, whether with the Federal
Government, State and local Governments, or in the private sector.
Sec. 10.516 How will an employee know if OWCP considers a job to be
suitable?
OWCP shall advise the employee that it has found the offered work
to be suitable and afford the employee 30 days to accept the job or
present any reasons to counter OWCP's finding of suitability. If the
employee presents such reasons, and OWCP determines that the reasons
are unacceptable, it will notify the employee of that determination and
that he or she has 15 days in which to accept the offered work without
penalty. At that point in
[[Page 65327]]
time, OWCP's notification need not state the reasons for finding that
the employee's reasons are not acceptable.
Sec. 10.517 What are the penalties for refusing to accept a suitable
job offer?
(a) 5 U.S.C. 8106(c) provides that a partially disabled employee
who refuses to seek suitable work, or refuses to or neglects to work
after suitable work is offered to or arranged for him or her, is not
entitled to compensation. An employee who refuses or neglects to work
after suitable work has been offered or secured for him or her has the
burden to show that this refusal or failure to work was reasonable or
justified.
(b) After providing the two notices described in Sec. 10.516, OWCP
will terminate the employee's entitlement to further compensation under
5 U.S.C. 8105, 8106, and 8107, as provided by 5 U.S.C. 8106(c)(2).
However, the employee remains entitled to medical benefits as provided
by 5 U.S.C. 8103.
Sec. 10.518 Does OWCP provide services to help employees return to
work?
(a) OWCP may, in its discretion, provide vocational rehabilitation
services as authorized by 5 U.S.C. 8104. These services include
assistance from registered nurses working under the direction of OWCP.
Among other things, these nurses visit the worksite, ensure that the
duties of the position do not exceed the medical limitations as
represented by the weight of medical evidence established by OWCP, and
address any problems the employee may have in adjusting to the work
setting. The nurses do not evaluate medical evidence; OWCP claims staff
perform this function.
(b) Vocational rehabilitation services may also include vocational
evaluation, testing, training, and placement services with either the
original employer or a new employer, when the injured employee cannot
return to the job held at the time of injury. These services also
include functional capacity evaluations, which help to tailor
individual rehabilitation programs to employees' physical
reconditioning and behavioral modification needs, and help employees to
meet the demands of current or potential jobs.
Sec. 10.519 What action will OWCP take if an employee refuses to
undergo vocational rehabilitation?
Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation. To ensure that
vocational rehabilitation services are available to all who might be
entitled to benefit from them, an injured employee who has a loss of
wage-earning capacity shall be presumed to be ``permanently disabled,''
for purposes of this section only, unless and until the employee proves
that the disability is not permanent. If an employee without good cause
fails or refuses to apply for, undergo, participate in, or continue to
participate in a vocational rehabilitation effort when so directed,
OWCP will act as follows:
(a) Where a suitable job has been identified, OWCP will reduce the
employee's future monetary compensation based on the amount which would
likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. OWCP will determine this amount in
accordance with the job identified through the vocational
rehabilitation planning process, which includes meetings with the OWCP
nurse and the employer. The reduction will remain in effect until such
time as the employee acts in good faith to comply with the direction of
OWCP.
(b) Where a suitable job has not been identified, because the
failure or refusal occurred in the early but necessary stages of a
vocational rehabilitation effort (that is, meetings with the OWCP
nurse, interviews, testing, counseling, functional capacity
evaluations, and work evaluations), OWCP cannot determine what would
have been the employee's wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this
section, in the absence of evidence to the contrary, OWCP will assume
that the vocational rehabilitation effort would have resulted in a
return to work with no loss of wage-earning capacity, and OWCP will
reduce the employee's monetary compensation accordingly (that is, to
zero). This reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.
Sec. 10.520 How does OWCP determine compensation after an employee
completes a vocational rehabilitation program?
After completion of a vocational rehabilitation program, OWCP may
adjust compensation to reflect the injured worker's wage-earning
capacity. Actual earnings will be used if they fairly and reasonably
reflect the earning capacity. The position determined to be the goal of
a training plan is assumed to represent the employee's earning capacity
if it is suitable and performed in sufficient numbers so as to be
reasonably available, whether or not the employee is placed in such a
position.
Reports of Earnings From Employment and Self-Employment
Sec. 10.525 What information must the employee report?
(a) An employee who is receiving compensation for partial or total
disability must advise OWCP immediately of any return to work, either
part-time or full-time. In addition, an employee who is receiving
compensation for partial or total disability will periodically be
required to submit a report of earnings from employment or self-
employment, either part-time or full-time. (See Sec. 10.5(g) for a
definition of ``earnings''.)
(b) The employee must report even those earnings which do not seem
likely to affect his or her level of benefits. Many kinds of income,
though not all, will result in reduction of compensation benefits.
While earning income will not necessarily result in a reduction of
compensation, failure to report income may result in forfeiture of all
benefits paid during the reporting period.
Sec. 10.526 Must the employee report volunteer activities?
An employee who is receiving compensation for partial or total
disability is periodically required to report volunteer activity or any
other kind of activity which shows that the employee is no longer
totally disabled for work.
Sec. 10.527 Does OWCP verify reports of earnings?
To make proper determinations of an employee's entitlement to
benefits, OWCP may verify the earnings reported by the employee through
a variety of means, including but not limited to computer matches with
the Office of Personnel Management and inquiries to the Social Security
Administration. Also, OWCP may perform computer matches with records of
State agencies, including but not limited to workers' compensation
administrations, to determine whether private employers are paying
workers' compensation insurance premiums for recipients of benefits
under the FECA.
Sec. 10.528 What action will OWCP take if the employee fails to file a
report of activity indicating an ability to work?
OWCP periodically requires each employee who is receiving
compensation benefits to complete an affidavit as to any work, or
activity indicating an ability to work, which the employee has
performed for the prior 15 months. If an employee who is required to
file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage
[[Page 65328]]
loss under 5 U.S.C. 8105 or 8106 is suspended until OWCP receives the
requested report. At that time, OWCP will reinstate compensation
retroactive to the date of suspension if the employee remains entitled
to compensation.
Sec. 10.529 What action will OWCP take if the employee files an
incomplete report?
(a) If an employee knowingly omits or understates any earnings or
work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was
required. A false or evasive statement, omission, concealment, or
misrepresentation with respect to employment activity or earnings in a
report may also subject an employee to criminal prosecution.
(b) Where the right to compensation is forfeited, OWCP shall
recover any compensation already paid for the period of forfeiture
pursuant to 5 U.S.C. 8129 and other relevant statutes.
Reports of Dependents
Sec. 10.535 How are dependents defined, and what information must the
employee report?
(a) Dependents in disability cases are defined in Sec. 10.405.
While the employee has one or more dependents, the employee's basic
compensation for wage loss or for permanent impairment shall be
augmented as provided in 5 U.S.C. 8110. (The rules for death claims are
found in Sec. 10.414.)
(b) An employee who is receiving augmented compensation on account
of dependents must advise OWCP immediately of any change in the number
or status of dependents. The employee should also promptly refund to
OWCP any amounts received on account of augmented compensation after
the right to receive augmented compensation has ceased. Any difference
between actual entitlement and the amount already paid beyond the date
entitlement ended is an overpayment of compensation and may be
recovered pursuant to 5 U.S.C. 8129 and other relevant statutes.
(c) An employee who is receiving augmented compensation shall be
periodically required to submit a statement as to any dependents, or to
submit supporting documents such as birth or marriage certificates or
court orders, to determine if he or she is still entitled to augmented
compensation.
Sec. 10.536 What is the penalty for failing to submit a report of
dependents?
If an employee fails to submit a requested statement or supporting
document within 30 days of the date of the request, OWCP will suspend
his or her right to augmented compensation until OWCP receives the
requested statement or supporting document. At that time, OWCP will
reinstate augmented compensation retroactive to the date of suspension,
provided that the employee is entitled to receive augmented
compensation.
Sec. 10.537 What reports are needed when compensation payments
continue for children over age 18?
(a) Compensation payable on behalf of a child that would otherwise
end when the child reaches 18 years of age will continue if and for so
long as he or she is not married and is either a student as defined in
5 U.S.C. 8101(17), or physically or mentally incapable of self-support.
(b) At least twice each year, OWCP will ask an employee who
receives compensation based on the student status of a child to provide
proof of continuing entitlement to such compensation, including
certification of school enrollment.
(c) Likewise, at least twice each year, OWCP will ask an employee
who receives compensation based on a child's physical or mental
inability to support himself or herself to submit a medical report
verifying that the child's medical condition persists and that it
continues to preclude self-support.
(d) If an employee fails to submit proof within 30 days of the date
of the request, OWCP will suspend the employee's right to compensation
until the requested information is received. At that time OWCP will
reinstate compensation retroactive to the date of suspension, provided
the employee is entitled to such compensation.
Reduction and Termination of Compensation
Sec. 10.540 When and how is compensation reduced or terminated?
(a) Except as provided in paragraphs (b) and (c) of this section,
where the evidence establishes that compensation should be either
reduced or terminated, OWCP will provide the beneficiary with written
notice of the proposed action and give him or her 30 days to submit
relevant evidence or argument to support entitlement to continued
payment of compensation. This notice will include a description of the
reasons for the proposed action and a copy of the specific evidence
upon which OWCP is basing its determination. Payment of compensation
will continue until any evidence or argument submitted has been
reviewed and an appropriate decision has been issued, or until 30 days
have elapsed if no additional evidence or argument is submitted.
(b) OWCP will not provide such written notice when the beneficiary
has no reasonable basis to expect that payment of compensation will
continue. For example, when a claim has been made for a specific period
of time and that specific period expires, no written notice will be
given. Written notice will also not be given when a beneficiary dies,
when OWCP either reduces or terminates compensation upon an employee's
return to work, when OWCP terminates only medical benefits after a
physician indicates that further medical treatment is not necessary or
has ended, or when OWCP denies payment for a particular medical
expense.
(c) OWCP will also not provide such written notice when
compensation is terminated, suspended or forfeited due to one of the
following: A beneficiary's conviction for fraud in connection with a
claim under the FECA; a beneficiary's incarceration based on any felony
conviction; an employee's failure to report earnings from employment or
self-employment; an employee's failure or refusal to either continue
performing suitable work or to accept an offer of suitable work; or an
employee's refusal to undergo or obstruction of a directed medical
examination or treatment for substance abuse.
Sec. 10.541 What action will OWCP take after issuing written notice of
its intention to reduce or terminate compensation?
(a) If the beneficiary submits evidence or argument prior to the
issuance of the decision, OWCP will evaluate it in light of the
proposed action and undertake such further development as it may deem
appropriate, if any. Evidence or argument which is repetitious,
cumulative, or irrelevant will not require any further development. If
the beneficiary does not respond within 30 days of the written notice,
OWCP will issue a decision consistent with its prior notice. OWCP will
not grant any request for an extension of this 30-day period.
(b) Evidence or argument which refutes the evidence upon which the
proposed action was based will result in the continued payment of
compensation. If the beneficiary submits evidence or argument which
fails to refute the evidence upon which the proposed action was based
but which requires further development, OWCP will not provide the
beneficiary with another notice of its proposed action upon completion
of such development. Once any further development of the evidence is
completed, OWCP will either continue payment or issue a decision
consistent with its prior notice.
[[Page 65329]]
Subpart G--Appeals Process
Sec. 10.600 How can final decisions of OWCP be reviewed?
There are three methods for reviewing a formal decision of the OWCP
(Secs. 10.125-10.127 discuss how decisions are made). These methods
are: reconsideration by the district office; a hearing before an OWCP
hearing representative; and appeal to the Employees' Compensation
Appeals Board (ECAB). For each method there are time limitations and
other restrictions which may apply, and not all options are available
for all decisions, so the employee should consult the requirements set
forth below. Further rules governing appeals to the ECAB are found at
part 501 of this title.
Reconsiderations and Reviews by the Director
Sec. 10.605 What is reconsideration?
The FECA provides that the Director may review an award for or
against compensation upon application by an employee (or his or her
representative) who receives an adverse decision. The employee shall
exercise this right through a request to the district office. The
request, along with the supporting statements and evidence, is called
the ``application for reconsideration.''
Sec. 10.606 How does a claimant request reconsideration?
(a) An employee (or representative) seeking reconsideration should
send the application for reconsideration to the address as instructed
by OWCP in the final decision.
(b) The application for reconsideration, including all supporting
documents, must:
(1) Be submitted in writing;
(2) Set forth arguments and contain evidence that either:
(i) Shows that OWCP erroneously applied or interpreted a specific
point of law;
(ii) Advances a relevant legal argument not previously considered
by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not
previously considered by OWCP.
Sec. 10.607 What is the time limit for requesting reconsideration?
(a) An application for reconsideration must be sent within one year
of the date of the OWCP decision for which review is sought. If
submitted by mail, the application will be deemed timely if postmarked
by the U.S. Postal Service within the time period allowed. If there is
no such postmark, or it is not legible, other evidence such as (but not
limited to) certified mail receipts, certificate of service, and
affidavits, may be used to establish the mailing date.
(b) OWCP will consider an untimely application for reconsideration
only if the application demonstrates clear evidence of error on the
part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.
(c) The year in which a claimant has to timely request
reconsideration shall not include any period subsequent to an OWCP
decision for which the claimant can establish through probative medical
evidence that he or she is unable to communicate in any way and that
his or her testimony is necessary in order to obtain modification of
the decision.
Sec. 10.608 How does OWCP decide whether to grant or deny the request
for reconsideration?
(a) A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence and/or argument
that meets at least one of the standards described in
Sec. 10.606(b)(2). If reconsideration is granted, the case is reopened
and the case is reviewed on its merits (see Sec. 10.609).
(b) Where the request is timely but fails to meet at least one of
the standards described in Sec. 10.606(b)(2), or where the request is
untimely and fails to present any clear evidence of error, OWCP will
deny the application for reconsideration without reopening the case for
a review on the merits. A decision denying an application for
reconsideration cannot be the subject of another application for
reconsideration. The only review for this type of non-merit decision is
an appeal to the ECAB (see Sec. 10.625), and OWCP will not entertain a
request for reconsideration or a hearing on this decision denying
reconsideration.
Sec. 10.609 How does OWCP decide whether new evidence requires
modification of the prior decision?
When application for reconsideration is granted, OWCP will review
the decision for which reconsideration is sought on the merits and
determine whether the new evidence or argument requires modification of
the prior decision.
(a) After OWCP decides to grant reconsideration, but before
undertaking the review, OWCP will send a copy of the reconsideration
application to the employer, which will have 20 days from the date sent
to comment or submit relevant documents. OWCP will provide any such
comments to the employee, who will have 20 days from the date the
comments are sent to him or her within which to comment. If no comments
are received from the employer, OWCP will proceed with the merit review
of the case.
(b) A claims examiner who did not participate in making the
contested decision will conduct the merit review of the claim. When all
evidence has been reviewed, OWCP will issue a new merit decision, based
on all the evidence in the record. A copy of the decision will be
provided to the agency.
(c) An employee dissatisfied with this new merit decision may again
request reconsideration under this subpart or appeal to the ECAB. An
employee may not request a hearing on this decision.
Sec. 10.610 What is a review by the Director?
The FECA specifies that an award for or against payment of
compensation may be reviewed at any time on the Director's own motion.
Such review may be made without regard to whether there is new evidence
or information. If the Director determines that a review of the award
is warranted (including, but not limited to circumstances indicating a
mistake of fact or law or changed conditions), the Director (at any
time and on the basis of existing evidence) may modify, rescind,
decrease or increase compensation previously awarded, or award
compensation previously denied. A review on the Director's own motion
is not subject to a request or petition and none shall be entertained.
(a) The decision whether or not to review an award under this
section is solely within the discretion of the Director. The Director's
exercise of this discretion is not subject to review by the ECAB, nor
can it be the subject of a reconsideration or hearing request.
(b) Where the Director reviews an award on his or her own motion,
any resulting decision is subject as appropriate to reconsideration, a
hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal
to ECAB is limited to a review of the merits of the resulting decision.
The Director's determination to review the award is not reviewable.
Hearings
Sec. 10.615 What is a hearing?
A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats:
An oral hearing or a review of the written record. At the discretion of
the hearing representative, an oral hearing may be conducted by
telephone or teleconference. In addition to the evidence of record, the
employee
[[Page 65330]]
may submit new evidence to the hearing representative.
Sec. 10.616 How does a claimant obtain a hearing?
(a) A claimant, injured on or after July 4, 1966, who has received
a final adverse decision by the district office may obtain a hearing by
writing to the address specified in the decision. The hearing request
must be sent within 30 days (as determined by postmark or other
carrier's date marking) of the date of the decision for which a hearing
is sought. The claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same
decision.
(b) The claimant may specify the type of hearing desired when
making the original hearing request. If the request does not specify a
format, OWCP will schedule an oral hearing. The claimant can request a
change in the format of the hearing by making a written request to the
Branch of Hearings and Review. OWCP will grant a request received by
the Branch of Hearings and Review within 30 days of: The date OWCP
acknowledges the initial hearing request, or the date OWCP issues a
notice setting a date for an oral hearing, in cases where the initial
request was for, or was treated as a request for, an oral hearing. A
request received after those dates will be subject to OWCP's
discretion. The decision to grant or deny a change of format is not
reviewable.
Sec. 10.617 How is an oral hearing conducted?
(a) The hearing representative 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.
(b) Unless otherwise directed in writing by the claimant, the
hearing representative will mail a notice of the time and place of the
oral hearing to the claimant and any representative at least 30 days
before the scheduled date. The employer will also be mailed a notice at
least 30 days before the scheduled date.
(c) The hearing is an informal process, and the hearing
representative is not bound by common law or statutory rules of
evidence, by technical or formal rules of procedure or by section 5 of
the Administrative Procedure Act, but the hearing representative 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 in support of the claim.
(d) Testimony at oral hearings is recorded, then transcribed and
placed in the record. Oral testimony shall be made under oath.
(e) OWCP will furnish a transcript of the oral hearing to the
claimant and the employer, who have 20 days from the date it is sent to
comment. Any comments received from the employer shall be sent to the
claimant, who will be given an additional 20 days to comment from the
date OWCP sends any agency comments.
(f) The hearing remains open for the submittal of additional
evidence until 30 days after the hearing is held, unless the hearing
representative, in his or her sole discretion, grants an extension.
Only one such extension may be granted. A copy of the decision will be
mailed to the claimant's last known address, to any representative, and
to the employer.
(g) The hearing representative determines the conduct of the oral
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.
Sec. 10.618 How is a review of the written record conducted?
(a) The hearing representative will review the official record and
any additional evidence submitted by the claimant and by the agency.
The hearing representative may also conduct whatever investigation is
deemed necessary. New evidence and arguments are to be submitted at any
time up to the time specified by OWCP, but they should be submitted as
soon as possible to avoid delaying the hearing process.
(b) The claimant should submit, with his or her application for
review, all evidence or argument that he or she wants to present to the
hearing representative. A copy of all pertinent material will be sent
to the employer, which will have 20 days from the date it is sent to
comment. (Medical evidence is not considered ``pertinent'' for review
and comment by the agency, and it will therefore not be furnished to
the agency. OWCP has sole responsibility for evaluating medical
evidence.) The employer shall send any comments to the claimant, who
will have 20 more days from the date of the agency's certificate of
service to comment.
Sec. 10.619 May subpoenas be issued for witnesses and documents?
A claimant may request a subpoena, but the decision to grant or
deny such a request is within the discretion of the hearing
representative. The hearing representative may issue subpoenas for the
attendance and testimony of witnesses, and for the production of books,
records, correspondence, papers or other relevant documents. Subpoenas
are issued for documents only 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.
(a) A claimant may request a subpoena only as part of the hearings
process, and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must:
(1) Submit the request in writing and send it to the hearing
representative as early as possible but no later than 60 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 to
the issues at hand, and 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.
(b) No subpoena will be issued for attendance of employees of OWCP
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.
(c) The hearing representative issues 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 can only be appealed as part of an appeal of any adverse
decision which results from the hearing.
Sec. 10.620 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 United States where the
subpoena is returnable, except that expert witnesses shall be paid a
fee not to exceed the local customary fee for such services.
(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 requested 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.
[[Page 65331]]
Sec. 10.621 What is the employer's role when an oral hearing has been
requested?
(a) The employer may send one (or more, where appropriate)
representative(s) to observe the proceeding, but the agency
representative cannot give testimony or argument or otherwise
participate in the hearing, except where the claimant or the hearing
representative specifically asks the agency representative to testify.
(b) The hearing representative may deny a request by the claimant
that the agency representative testify where the claimant cannot show
that the testimony would be relevant or where the agency representative
does not have the appropriate level of knowledge to provide such
evidence at the hearing. The employer may also comment on the hearing
transcript, as described in Sec. 10.617(e).
Sec. 10.622 May a claimant withdraw a request for or postpone a
hearing?
(a) The claimant and/or representative may withdraw the hearing
request at any time up to and including the day the hearing is held, or
the decision issued. Withdrawing the hearing request means the record
is returned to the jurisdiction of the district office and no further
requests for a hearing on the underlying decision will be considered.
(b) OWCP will entertain any reasonable request for scheduling the
oral hearing, but such requests should be made at the time of the
original application for hearing. Scheduling is at the sole discretion
of the hearing representative, and is not reviewable. Once the oral
hearing is scheduled and OWCP has mailed appropriate written notice to
the claimant, the oral hearing cannot be postponed at the claimant's
request for any reason except those stated in paragraph (c) of this
section, unless the hearing representative can reschedule the hearing
on the same docket (that is, during the same hearing trip). When the
request to postpone a scheduled hearing does not meet the test of
paragraph (c) of this section and cannot be accommodated on the docket,
no further opportunity for an oral hearing will be provided. Instead,
the hearing will take the form of a review of the written record and a
decision issued accordingly. In the alternative, a teleconference may
be substituted for the oral hearing at the discretion of the hearing
representative.
(c) Where the claimant is hospitalized for a reason which is not
elective, or where the death of the claimant's parent, spouse, or child
prevents attendance at the hearing, a postponement may be granted upon
proper documentation.
Review by the Employees' Compensation Appeals Board (ECAB)
Sec. 10.625 What kinds of decisions may be appealed?
Only final decisions of OWCP may be appealed to the ECAB. However,
certain types of final decisions, described in this part as not subject
to further review, cannot be appealed to the ECAB. Decisions that are
not appealable to the ECAB include: Decisions concerning the amounts
payable for medical services, decisions concerning exclusion and
reinstatement of medical providers, decisions by the Director to review
an award on his or her own motion, and denials of subpoenas independent
of the appeal of the underlying decision. In appeals before the ECAB,
attorneys from the Office of the Solicitor of Labor shall represent
OWCP.
Sec. 10.626 Who has jurisdiction of cases on appeal to the ECAB?
While a case is on appeal to the ECAB, OWCP has no jurisdiction
over the claim with respect to issues which directly relate to the
issue or issues on appeal. The OWCP continues to administer the claim
and retains jurisdiction over issues unrelated to the issue or issues
on appeal and issues which arise after the appeal as a result of
ongoing administration of the case. Such issues would include, for
example, the ability to terminate benefits where an individual returns
to work while an appeal is pending at the ECAB.
Subpart H--Special Provisions
Representation
Sec. 10.700 May a claimant designate a representative?
(a) The claims process under the FECA is informal. Unlike many
workers' compensation laws, the employer is not a party to the claim,
and OWCP acts as an impartial evaluator of the evidence. 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 representative until the claimant withdraws the
authorization of the first individual. In addition, OWCP will recognize
only certain types of individuals (see Sec. 10.701).
(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. Any
notice requirement contained in this part or the FECA is fully
satisfied if served on the representative, and has the same force and
effect as if sent to the claimant.
Sec. 10.701 Who may serve as a representative?
A claimant may authorize any individual to represent him or her in
regard to a claim under the FECA, 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.
Sec. 10.702 How are fees for services paid?
A representative may charge the claimant a fee and other costs
associated with the representation before OWCP. The claimant is solely
responsible for paying the fee and other charges. The claimant will not
be reimbursed by OWCP, nor is OWCP in any way liable for the amount of
the fee.
Administrative costs (mailing, copying, messenger services, travel
and the like, but not including secretarial services, paralegal and
other activities) need not be approved before the representative
collects them. Before any fee for services can be collected, however,
the fee must be approved by the Secretary. (Collecting a fee without
this approval may constitute a misdemeanor under 18 U.S.C. 292.)
Sec. 10.703 How are fee applications approved?
(a) Fee Application. (1) The representative must submit the fee
application to the district office and/or the Branch of Hearings and
Review, according to where the work for which the fee is charged was
performed. The application shall contain the following:
(i) An itemized statement showing the representative's hourly rate,
the number of hours worked and specifically identifying the work
performed and a total amount charged for the representation (excluding
administrative costs).
[[Page 65332]]
(ii) A statement of agreement or disagreement with the amount
charged, signed by the claimant. The statement must also acknowledge
that the claimant is aware that he or she must pay the fees and that
OWCP is not responsible for paying the fee or other costs.
(2) An incomplete application will be returned with no further
comment.
(b) Approval where there is no dispute. Where a fee application is
accompanied by a signed statement indicating the claimant's agreement
with the fee as described in paragraph (a)(1)(ii) of this section, the
application is deemed approved.
(c) Disputed requests. (1) Where the claimant disagrees with the
amount of the fee, as indicated in the statement accompanying the
submittal, OWCP will evaluate the objection and decide whether or not
to approve the request. OWCP will provide a copy of the request to the
claimant and ask him or her to submit any further information in
support of the objection within 15 days from the date the request is
forwarded. After that period has passed, OWCP will evaluate the
information received to determine whether the amount of the fee is
substantially in excess of the value of services received by looking at
the following factors:
(i) Usefulness of the representative's services;
(ii) The nature and complexity of the claim;
(iii) The actual time spent on development and presentation of the
claim; and
(iv) Customary local charges for similar services.
(2) Where the claimant disputes the representative's request and
files an objection with OWCP, an appealable decision will be issued.
Third Party Liability
Sec. 10.705 When must an employee or other FECA beneficiary take
action against a third party?
(a) If an injury or death for which benefits are payable under the
FECA is caused, wholly or partially, by someone other than a Federal
employee acting within the scope of his or her employment, the claimant
can be required to take action against that third party.
(b) The Office of the Solicitor of Labor (SOL) is hereby delegated
authority to administer the subrogation aspects of certain FECA claims
for OWCP. Either OWCP or SOL can require a FECA beneficiary to assign
his or her claim for damages to the United States or to prosecute the
claim in his or her own name.
Sec. 10.706 How will a beneficiary know if OWCP or SOL has determined
that action against a third party is required?
When OWCP determines that an employee or other FECA beneficiary
must take action against a third party, it will notify the employee or
beneficiary in writing. If the case is transferred to SOL, a second
notification may be issued.
Sec. 10.707 What must a FECA beneficiary who is required to take
action against a third party do to satisfy the requirement that the
claim be ``prosecuted''?
At a minimum, a FECA beneficiary must do the following:
(a) Seek damages for the injury or death from the third party,
either through an attorney or on his or her own behalf;
(b) Either initiate a lawsuit within the appropriate statute of
limitations period or obtain a written release of this obligation from
OWCP or SOL unless recovery is possible through a negotiated settlement
prior to filing suit;
(c) Refuse to settle or dismiss the case for any amount less than
the amount necessary to repay OWCP's refundable disbursements, as
defined in Sec. 10.714, without receiving permission from OWCP or SOL;
(d) Provide periodic status updates and other relevant information
in response to requests from OWCP or SOL;
(e) Submit detailed information about the amount recovered and the
costs of the suit on a ``Statement of Recovery'' form approved by OWCP;
and
(f) Pay any required refund.
Sec. 10.708 Can a FECA beneficiary who refuses to comply with a
request to assign a claim to the United States or to prosecute the
claim in his or her own name be penalized?
When a FECA beneficiary refuses a request to either assign a claim
or prosecute a claim in his or her own name, OWCP may determine that he
or she has forfeited his or her right to all past or future
compensation for the injury with respect to which the request is made.
Alternatively, OWCP may also suspend the FECA beneficiary's
compensation payments until he or she complies with the request.
Sec. 10.709 What happens if a beneficiary directed by OWCP or SOL to
take action against a third party does not believe that a claim can be
successfully prosecuted at a reasonable cost?
If a beneficiary consults an attorney and is informed that a suit
for damages against a third party for the injury or death for which
benefits are payable is unlikely to prevail or that the costs of such a
suit are not justified by the potential recovery, he or she should
request that OWCP or SOL release him or her from the obligation to
proceed. This request should be in writing and provide evidence of the
attorney's opinion. If OWCP or SOL agrees, the beneficiary will not be
required to take further action against the third party.
Sec. 10.710 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which benefits are
payable under the FECA be reported to OWCP or SOL?
Any person who has filed a FECA claim that has been accepted by
OWCP (whether or not compensation has been paid), or who has received
FECA benefits in connection with a claim filed by another, is required
to notify OWCP or SOL of the receipt of money or other property as a
result of a settlement or judgment in connection with the circumstances
of that claim. This includes an injured employee, and in the case of a
claim involving the death of an employee, a spouse, children or other
dependents entitled to receive survivor's benefits. OWCP or SOL should
be notified in writing within 30 days of the receipt of such money or
other property or the acceptance of the FECA claim, whichever occurs
later.
Sec. 10.711 How much of any settlement or judgment must be paid to the
United States?
The statute permits a FECA beneficiary to retain, as a minimum,
one-fifth of the net amount of money or property remaining after a
reasonable attorney's fee and the costs of litigation have been
deducted from the third-party recovery. The United States shares in the
litigation expense by allowing the beneficiary to retain, at the time
of distribution, an amount equivalent to a reasonable attorney's fee
proportionate to the refund due the United States. After the refund
owed to the United States is calculated, the FECA beneficiary retains
any surplus remaining, and this amount is credited, dollar for dollar,
against future compensation for the same injury, as defined in
Sec. 10.719. OWCP will resume the payment of compensation only after
the FECA beneficiary has been awarded compensation which exceeds the
amount of the surplus.
(a) The refund to the United States is calculated as follows, using
the Statement of Recovery form approved by OWCP:
(1) Determine the gross recovery as set forth in Sec. 10.712;
(2) Subtract the amount of attorney's fees actually paid, but not
more than the maximum amount of attorney's fees
[[Page 65333]]
considered by OWCP or SOL to be reasonable, from the gross recovery
(Subtotal A);
(3) Subtract the costs of litigation, as allowed by OWCP or SOL
(Subtotal B);
(4) Subtract one fifth of Subtotal B from Subtotal B (Subtotal C);
(5) Compare Subtotal C and the refundable disbursements as defined
in Sec. 10.714. Subtotal D is the lower of the two amounts.
(6) Multiply Subtotal D by a percentage that is determined by
dividing the gross recovery into the amount of attorney's fees actually
paid, but not more than the maximum amount of attorney's fees
considered by OWCP or SOL to be reasonable, to determine the
Government's allowance for attorney's fees, and subtract this amount
from Subtotal D.
(b) The credit against future benefits (also referred to as the
surplus) is calculated as follows:
(1) If Subtotal C, as calculated according to paragraph (a)(4) of
this section, is less than the refundable disbursements, as defined in
Sec. 10.714, there is no credit to be applied against future benefits;
(2) If Subtotal C is greater than the refundable disbursements, the
credit against future benefits (or surplus) amount is determined by
subtracting the refundable disbursements from Subtotal C.
(c) An example of how these calculations are made follows. In this
example, a Federal employee sues another party for causing injuries for
which the employee has received $22,000 in benefits under the FECA,
subject to refund. The suit is settled and the injured employee
receives $100,000, all of which was for his injury. The injured worker
paid attorney's fees of $25,000 and costs for the litigation of $3,000.
(1) Gross recovery.......................................... $100,000
Attorney's fees......................................... -25,000
-----------
(2) Subtotal A.............................................. 75,000
(3) Costs of suit........................................... -3,000
-----------
Subtotal B.............................................. 72,000
One-fifth of Subtotal B................................. -14,400
-----------
(4) Subtotal C.............................................. 57,600
Refundable Disbursements................................ 22,000
(5) Subtotal D (lower of Subtotal C or refundable
disbursements)............................................. 22,000
(6) Government's allowance for attorney's fees [25,000/
100,000) x 22,000] (attorney's fees divided by gross
recovery then multiplied by Subtotal D).................... -5,500
-----------
Refund to the United States............................. 16,500
(7) Credit against future benefits [57,600-22,000] (Subtotal
C minus refundable disbursements).......................... 35,600
Sec. 10.712 What amounts are included in the gross recovery?
(a) When a settlement or judgment is paid to, or for, one
individual, the entire amount, except for the portion representing
damage to real or personal property, is reported as the gross recovery.
If a settlement or judgment is paid to or for more than one individual
or in more than one capacity, such as a joint payment to a husband and
wife for personal injury and loss of consortium or a payment to a
spouse representing both loss of consortium and wrongful death, the
gross recovery to be reported is the amount allocated to the injured
employee. If a judge or jury specifies the percentage of a contested
verdict attributable to each of several plaintiffs, OWCP or SOL will
accept that division.
(b) In any other case, where a judgment or settlement is paid to or
on behalf of more than one individual, OWCP or SOL will determine the
appropriate amount of the FECA beneficiary's gross recovery and advise
the beneficiary of its determination. FECA beneficiaries may accept
OWCP's or SOL's determination or demonstrate good cause for a different
allocation. Whether to accept a specific allocation is at the
discretion of SOL or OWCP.
Sec. 10.713 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 gross recovery?
In this situation, the gross 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.
Sec. 10.714 What amounts are included in the refundable disbursements?
The refundable disbursements of a specific claim consist of the
total money paid by OWCP from the Employees' Compensation Fund with
respect to that claim to or on behalf of a FECA beneficiary, less
charges for any medical file review (i.e., the physician does not
examine the employee) done at the request of OWCP. Charges for medical
examinations also may be subtracted if the FECA beneficiary establishes
that the examinations were required to be made available to the
employee under a statute other than the FECA by the employing agency or
at the employing agency's cost.
Sec. 10.715 Is a beneficiary required to pay interest on the amount of
the refund due to the United States?
If the refund due to the United States is not submitted within 30
days of receiving a request for payment from SOL or OWCP, interest
shall accrue on the refund due to the United States from the date of
the request. The rate of interest assessed shall be the rate of the
current value of funds to the United States Treasury as published in
the Federal Register (as of the date the request for payment is sent).
Waiver of the collection of interest shall be in accordance with the
provisions of the Department of Labor regulations on Federal Claims
Collection governing waiver of interest, 29 CFR 20.61.
Sec. 10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under the
FECA?
If the required refund is not paid within 30 days of the request
for payment, OWCP can, in its discretion, collect the refund by
withholding all or part of any payments currently payable to the
beneficiary under the FECA with respect to any injury. The waiver
provisions of Secs. 10.432 through 10.440 do not apply to such
determinations.
[[Page 65334]]
Sec. 10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by the
FECA a gross recovery that must be reported to OWCP or SOL?
Since an injury caused by medical malpractice in treating an injury
covered by the FECA is also an injury covered under the FECA, any
recovery in a suit alleging such an injury is treated as a gross
recovery that must be reported to OWCP or SOL.
Sec. 10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that must
be reported to OWCP or SOL?
Since payments received by a FECA 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 injury
covered by the FECA, they are not considered a gross recovery covered
by section 8132 that requires filing a Statement of Recovery and paying
any required refund.
Sec. 10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on a
single FECA claim be attributed to different conditions for purposes of
calculating the refund or credit owed to the United States?
(a) All wounds, diseases or other medical conditions accepted by
OWCP in connection with a single claim are treated as the same injury
for the purpose of computing any required refund and any credit against
future benefits in connection with the receipt of a recovery from a
third party, except that an injury caused by medical malpractice in
treating an injury covered under the FECA will be treated as a separate
injury for purposes of section 8132.
(b) If an injury covered under the FECA is caused under
circumstances creating a legal liability in more than one person, other
than the United States, to pay damages, OWCP or SOL 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 FECA claim. If such an attribution is both
practicable and equitable, as determined by OWCP or SOL, in its
discretion, the conditions will be treated as separate injuries for
purposes of calculating the refund and credit owed to the United States
under section 8132.
Federal Grand and Petit Jurors
Sec. 10.725 When is a Federal grand or petit juror covered under the
FECA?
(a) Federal grand and petit jurors are covered under the FECA when
they are in performance of duty as a juror, which includes that time
when a juror is:
(1) In attendance at court pursuant to a summons;
(2) In deliberation;
(3) Sequestered by order of a judge; or
(4) At a site, by order of the court, for the taking of a view.
(b) A juror is not considered to be in the performance of duty
while traveling to or from home in connection with the activities
enumerated in paragraphs (a)(1) through (4) of this section.
Sec. 10.726 When does a juror's entitlement to disability compensation
begin?
Pursuant to 28 U.S.C. 1877, entitlement to disability compensation
does not commence until the day after the date of termination of
service as a juror.
Sec. 10.727 What is the pay rate of jurors for compensation purposes?
For the purpose of computing compensation payable for disability or
death, a juror is deemed to receive pay at the minimum rate for Grade
GS-2 of the General Schedule unless his or her actual pay as an
``employee'' of the United States while serving on court leave is
higher, in which case the pay rate for compensation purposes is
determined in accordance with 5 U.S.C. 8114.
Peace Corps Volunteers
Sec. 10.730 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the
United States?
(a) Any injury sustained by a volunteer or volunteer leader while
he or she is located abroad shall be presumed to have been sustained in
the performance of duty, and any illness contracted during such time
shall be presumed to be proximately caused by the employment. However,
this presumption will be rebutted by evidence that:
(1) The injury or illness was caused by the claimant's willful
misconduct, intent to bring about the injury or death of self or
another, or was proximately caused by the intoxication by alcohol or
illegal drugs of the injured claimant; or
(2) The illness is shown to have pre-existed the period of service
abroad; or
(3) The injury or illness claimed is a manifestation of symptoms
of, or consequent to, a pre-existing congenital defect or abnormality.
(b) If the presumption that an injury or illness was sustained in
the performance of duty is rebutted as provided by paragraph (a) of
this section, the claimant has the burden of proving by the submittal
of substantial and probative evidence that such injury or illness was
sustained in the performance of duty with the Peace Corps.
(c) If an injury or illness, or episode thereof, comes within one
of the exceptions described in paragraph (a)(2) or (3) of this section,
the claimant may nonetheless be entitled to compensation. This will be
so provided he or she meets the burden of proving by the submittal of
substantial, probative and rationalized medical evidence that the
illness or injury was proximately caused by factors or conditions of
Peace Corps service, or that it was materially aggravated, accelerated
or precipitated by factors of Peace Corps service.
Sec. 10.731 What is the pay rate of Peace Corps volunteers and
volunteer leaders for compensation purposes?
The pay rate for these claimants is defined as the pay rate in
effect on the date following separation, provided that the rate equals
or exceeds the pay rate on the date of injury. It is defined in
accordance with 5 U.S.C. 8142(a), not 8101(4).
Non-Federal Law Enforcement Officers
Sec. 10.735 When is a non-Federal law enforcement officer (LEO)
covered under the FECA?
(a) A law enforcement officer (officer) includes an employee of a
State or local Government, the Governments of U.S. possessions and
territories, or an employee of the United States pensioned or
pensionable under sections 521-535 of Title 4, D.C. Code, whose
functions include the activities listed in 5 U.S.C. 8191.
(b) Benefits are available to officers who are not ``employees''
under 5 U.S.C. 8101, and who are determined in the discretion of OWCP
to have been engaged in the activities listed in 5 U.S.C. 8191 with
respect to the enforcement of crimes against the United States.
Individuals who only perform administrative functions in support of
officers are not considered officers.
(c) Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in
this part, the provisions of the FECA and of subparts A, B, and D
through I of this part apply to officers.
[[Page 65335]]
Sec. 10.736 What are the time limits for filing a LEO claim?
OWCP must receive a claim for benefits under 5 U.S.C. 8191 within
five years after the injury or death. This five-year limitation is not
subject to waiver. The tolling provisions of 5 U.S.C. 8122(d) do not
apply to these claims.
Sec. 10.737 How is a LEO claim filed, and who can file a LEO claim?
A claim for injury or occupational disease should be filed on Form
CA-721; a death claim should be filed on Form CA-722. All claims should
be submitted to the officer's employer for completion and forwarding to
OWCP. A claim may be filed by the officer, the officer's survivor, or
any person or association authorized to act on behalf of an officer or
an officer's survivors.
Sec. 10.738 Under what circumstances are benefits payable in LEO
claims?
(a) Benefits are payable when an officer is injured while
apprehending, or attempting to apprehend, an individual for the
commission of a Federal crime. However, either an actual Federal crime
must be in progress or have been committed, or objective evidence (of
which the officer is aware at the time of injury) must exist that a
potential Federal crime was in progress or had already been committed.
The actual or potential Federal crime must be an integral part of the
criminal activity toward which the officer's actions are directed. The
fact that an injury to an officer is related in some way to the
commission of a Federal crime does not necessarily bring the injury
within the coverage of the FECA. The FECA is not intended to cover
officers who are merely enforcing local laws.
(b) For benefits to be payable when an officer is injured
preventing, or attempting to prevent, a Federal crime, there must be
objective evidence that a Federal crime is about to be committed. An
officer's belief, unsupported by objective evidence, that he or she is
acting to prevent the commission of a Federal crime will not result in
coverage. Moreover, the officer's subjective intent, as measured by all
available evidence (including the officer's own statements and
testimony, if available), must have been directed toward the prevention
of a Federal crime. In this context, an officer's own statements and
testimony are relevant to, but do not control, the determination of
coverage.
Sec. 10.739 What kind of objective evidence of a potential Federal
crime must exist for coverage to be extended?
Based on the facts available at the time of the event, the officer
must have an awareness of sufficient information which would lead a
reasonable officer, under the circumstances, to conclude that a Federal
crime was in progress, or was about to occur. This awareness need not
extend to the precise particulars of the crime (the section of Title
18, United States Code, for example), but there must be sufficient
evidence that the officer was in fact engaged in actual or attempted
apprehension of a Federal criminal or prevention of a Federal crime.
Sec. 10.740 In what situations will OWCP automatically presume that a
law enforcement officer is covered by the FECA?
(a) Where an officer is detailed by a competent State or local
authority to assist a Federal law enforcement authority in the
protection of the President of the United States, or any other person
actually provided or entitled to U.S. Secret Service protection,
coverage will be extended.
(b) Coverage for officers of the U.S. Park Police and those
officers of the Uniformed Division of the U.S. Secret Service who
participate in the District of Columbia Retirement System is
adjudicated under the principles set forth in paragraph (a) of this
section, and does not extend to numerous tangential activities of law
enforcement (for example, reporting to work, changing clothes).
However, officers of the Non-Uniformed Division of the U.S. Secret
Service who participate in the District of Columbia Retirement System
are covered under the FECA during the performance of all official
duties.
Sec. 10.741 How are benefits calculated in LEO claims?
(a) Except for continuation of pay, eligible officers and survivors
are entitled to the same benefits as if the officer had been an
employee under 5 U.S.C. 8101. However, such benefits may be reduced or
adjusted as OWCP in its discretion may deem appropriate to reflect
comparable benefits which the officer or survivor received or would
have been entitled to receive by virtue of the officer's employment.
(b) For the purpose of this section, a comparable benefit includes
any benefit that the officer or survivor is entitled to receive because
of the officer's employment, including pension and disability funds,
State workers' compensation payments, Public Safety Officers' Benefits
Act payments, and State and local lump-sum payments. Health benefits
coverage and proceeds of life insurance policies purchased by the
employer are not considered to be comparable benefits.
(c) The FECA provides that, where an officer receives comparable
benefits, compensation benefits are to be reduced proportionally in a
manner that reflects the relative percentage contribution of the
officer and the officer's employer to the fund which is the source of
the comparable benefit. Where the source of the comparable benefit is a
retirement or other system which is not fully funded, the calculation
of the amount of the reduction will be based on a per capita comparison
between the contribution by the employer and the contribution by all
covered officers during the year prior to the officer's injury or
death.
(d) The non-receipt of compensation during a period where a dual
benefit (such as a lump-sum payment on the death of an officer) is
being offset against compensation entitlement does not result in an
adjustment of the respective benefit percentages of remaining
beneficiaries because of a cessation of compensation under 5 U.S.C.
8133(c).
Subpart I--Information for Medical Providers
Medical Records and Bills
Sec. 10.800 What kind of medical records must providers keep?
Agency medical officers, private physicians and hospitals are
required to keep records of all cases treated by them under the FECA so
they can supply OWCP with a history of the injury, a description of the
nature and extent of injury, the results of any diagnostic studies
performed, the nature of the treatment rendered and the degree of any
impairment and/or disability arising from the injury.
Sec. 10.801 How are medical bills to be submitted?
(a) All charges for medical and surgical treatment, appliances or
supplies furnished to injured employees, except for treatment and
supplies provided by nursing homes, shall be supported by medical
evidence as provided in Sec. 10.800. The physician or provider shall
itemize the charges on the standard Health Insurance Claim Form, HCFA
1500 or OWCP 1500, (for professional charges), the UB-92 (for
hospitals), the Universal Claim Form (for pharmacies), or other form as
warranted, and submit the form promptly to OWCP.
(b) The provider shall identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the Health Care
Financing Administration Common Procedure Coding System (HCPCS) code,
the National Drug Code (NDC), or the
[[Page 65336]]
Revenue Center Code (RCC), with a brief narrative description. Where no
code is applicable, a detailed description of services performed should
be provided.
(c) 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
work-related condition is necessary for more than 30 days.
(1) (i) Hospitals shall submit charges for medical and surgical
treatment or supplies promptly to OWCP on the Uniform Bill (UB-92). 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 in the UB-92.
(ii) Other outpatient hospital services for which HCPCS/CPT codes
exist shall also be coded individually using the coding scheme noted in
this paragraph. 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
CPT/HCPCS codes and furnishing the corresponding diagnostic codes using
the ICD-9-CM.
(2) Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on the Universal Claim Form and submit them
promptly to OWCP. Bills for prescription medications must include the
NDC 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
to OWCP.
(d) By submitting a bill and/or accepting payment, the provider
signifies that the service for which reimbursement 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
reimbursement 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
the Health Insurance Claim Form (for physicians), the UB-92 (for
hospitals), or the Universal Claim Form (for pharmacies); contain the
signature or signature stamp of the provider; and identify the
procedures using HCPCS/CPT codes, RCCs, or NDCs. Otherwise, OWCP may
return the bill to the provider for correction and resubmission.
Sec. 10.802 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 dental
services, supplies or appliances due to an injury sustained in the
performance of duty, he or she may submit an itemized bill on the
Health Insurance Claim Form, HCFA 1500 or OWCP 1500, together with a
medical report as provided in Sec. 10.800, to OWCP 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 bill 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 services were provided by a hospital, pharmacy or nursing
home, the employee should submit the bill in accordance with the
provisions of Sec. 10.801(a). Any request for reimbursement must be
accompanied by evidence, as described in paragraph (a) of this section,
that the provider received payment for the service from the employee
and a statement of the amount paid.
(c) OWCP may waive the requirements of paragraphs (a) and (b) of
this section 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) OWCP will not accept copies of bills for reimbursement unless
they bear the original signature of the provider, with 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 the Director, as set forth in
Sec. 10.805.
(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 the Director's schedule. If
this happens, OWCP shall advise the employee 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 may request reconsideration of the fee
determination as set forth in Sec. 10.812.
(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 appealed amount, OWCP shall initiate exclusion
procedures as provided by Sec. 10.815.
(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 charge
which OWCP allows, the employee should submit documentation of the
attempt to obtain such refund or credit to OWCP. OWCP may make
reasonable reimbursement to the employee after reviewing the facts and
circumstances of the case.
Sec. 10.803 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
Sec. 10.805 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 work-
[[Page 65337]]
related injuries shall not exceed a maximum allowable charge for such
service as determined by the Director, 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.
Sec. 10.806 How are the maximum fees defined?
For professional medical services, the Director 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 Health Care Financing Administration Common
Procedure Coding System/Current Procedural Terminology (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.
Sec. 10.807 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. The Director 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 Health Care Financing Administration (HCFA).
(b) The Director shall assign the relative value units (RVUs)
published by HCFA to all services for which HCFA has made assignments,
using the most recent revision. Where there are no RVUs assigned to a
procedure, the Director may develop and assign any RVUs that he or she
considers appropriate. The geographic adjustment factor shall be that
designated by Geographic Practice Cost Indices for Metropolitan
Statistical Areas as devised for HCFA and as updated or revised by HCFA
from time to time. The Director will devise conversion factors for each
category of service, and in doing so may adapt HCFA 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
Sec. 10.808 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, the Director 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 examinations
performed under 5 U.S.C. 8123, and for other specially authorized
services.
Sec. 10.809 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 National Drug Code
(NDC) will be assigned an average wholesale price representing the
product's nationally recognized wholesale price as determined by
surveys of manufacturers and wholesalers. The Director will establish
the dispensing fee.
(b) The NDCs, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.
Sec. 10.810 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 HCFA (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 the HCFA 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 HCFA in the
form of their PPS Pricer software program. The software takes into
consideration the type of facility, census division, actual geographic
location (MSA) 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 HCFA to determine the specific rate for a
hospital discharge under their PPS. The Director may devise price
adjustment factors as appropriate using OWCP's processing experience
and internal data.
(3) OWCP will base payments to facilities excluded from HCFA's PPS
on consideration of detailed medical reports and other evidence.
(4) The Director shall review the pre-determined hospital rates at
least once a year, and may adjust any or all components when he or she
deems it necessary or appropriate.
(b) The Director shall review the schedule of fees at least once a
year, and may adjust the schedule or any of its components when he or
she deems it necessary or appropriate.
Sec. 10.811 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.
[[Page 65338]]
(b) If the charge submitted for a service supplied to an injured
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.
Sec. 10.812 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 the
Director may, within 30 days, request reconsideration of the fee
determination.
(1) The provider should make such a request to the OWCP district
office with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
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 an exception. These are the only
three circumstances which will justify reevaluation of the paid amount.
(2) A list of OWCP district offices and their respective areas of
jurisdiction is available upon request from the U.S. Department of
Labor, Office of Workers' Compensation Programs, Washington, DC 20210,
or from the Internet at www.dol.gov./esa/owcp.htm. Within 30 days
of receiving the request for reconsideration, the OWCP 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 OWCP district office issues a decision which continues
to disallow a contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the OWCP 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. This
decision shall be final, and shall not be subject to further review.
Sec. 10.813 If OWCP reduces a fee, may a provider bill the claimant
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
reimbursement from the employee for additional amounts.
(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 Sec. 10.815(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 Sec. 10.815(h).
Exclusion of Providers
Sec. 10.815 What are the grounds for excluding a provider from payment
under the FECA?
A physician, hospital, or provider of medical services or supplies
shall be excluded from payment under the FECA 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 the FECA, 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 twelve-month period under this subpart
containing charges which the Director finds to be substantially in
excess of such provider's customary charges, unless the Director 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 the FECA and Sec. 10.800;
(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.
Sec. 10.816 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 has been convicted of a
crime described in Sec. 10.815(a), or has been excluded or suspended,
or has resigned in lieu of exclusion or suspension, from participation
in any program as described in Sec. 10.815(b).
(b) The exclusion applies to participating in the program and to
seeking payment under the FECA 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.
Sec. 10.817 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
Sec. 10.815, the Regional Director, after completion of inquiries he or
she deems appropriate, may
[[Page 65339]]
initiate procedures to exclude the provider from participation in the
FECA program. For the purposes of this section, ``Regional Director''
may include any officer designated to act on his or her behalf.
Sec. 10.818 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 FECA 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 Sec. 10.819) 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.
Sec. 10.819 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 official 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 Sec. 10.820. The filing of a
request for a hearing within the time specified shall stay the
effectiveness of the decision to exclude.
Sec. 10.820 How can an excluded provider request a hearing?
A request for a hearing shall be sent to the official
representative named under Sec. 10.818(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.
Sec. 10.821 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 issuance of
subpoenas or the certification of questions for an advisory opinion.
Sec. 10.822 How are subpoenas or advisory opinions obtained?
(a) The provider may apply to the administrative law judge for the
issuance of subpoenas upon a showing of good cause therefor.
(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.
Sec. 10.823 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
[[Page 65340]]
shall become a permanent part of the official record of the
proceedings.
(d) Pursuant to 5 U.S.C. 8126, the administrative law judge may:
(1) Issue subpoenas for and compel the attendance of witnesses
within a radius of 100 miles;
(2) Administer oaths;
(3) Examine witnesses; and
(4) Require the production of books, papers, documents, and other
evidence with respect to the proceedings.
(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 the Director.
Sec. 10.824 How can a party request review by the Director 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 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 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 the Director;
(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.
(h) The decision of the Director shall be final with respect to the
provider's participation in the program, and shall not be subject to
further review by any court or agency.
Sec. 10.825 What are the effects of 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) All Federal employers;
(3) The HCFA;
(4) The State or local authority responsible for licensing or
certifying the excluded party; and
(5) 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 have
known 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.
Sec. 10.826 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 Sec. 10.816, 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 Federal Employees' 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 Federal Employees' Compensation shall order
reinstatement only in instances where such reinstatement is clearly
consistent with the goal of this subpart to protect the FECA 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.
2. Part 25 is revised to read as follows:
Part 25--Compensation for Disability and Death of Noncitizen
Federal Employees Outside the United States
Subpart A--General Provisions
Sec.
25.1 How are claims of Federal employees who are neither citizens
nor residents adjudicated?
25.2 In general, what is the Director's policy regarding such
claims?
25.3 What is the authority to settle and pay such claims?
25.4 What type of evidence is required to establish a claim under
this part?
25.5 What special rules does OWCP apply to claims of third and
fourth country nationals?
25.6 How does OWCP adjudicate claims of non-citizen residents of
possessions?
Subpart B--The Special Schedule of Compensation
25.100 How is compensation for disability paid?
25.101 How is compensation for death paid?
25.102 What general provisions does OWCP apply to the Special
Schedule?
Subpart C--Extensions of the Special Schedule of Compensation
25.200 How is the Special Schedule applied for employees in the
Republic of the Philippines?
25.201 How is the Special Schedule applied for employees in
Australia?
25.202 How is the Special Schedule applied for Japanese seamen?
25.203 How is the Special Schedule applied to non-resident aliens
in the Territory of Guam?
Authority: 5 U.S.C. 301, 8137, 8145 and 8149; 1946
Reorganization Plan No. 2, sec. 3, 3 CFR 1943-1948 Comp., p. 1064;
60 Stat. 1095; Reorganization Plan No. 19 of 1950, sec. 1, 3 CFR
1943-1953 Comp., p. 1010; 64 Stat. 1271; Secretary's Order 5-96, 62
FR 107.
[[Page 65341]]
Subpart A--General Provisions
Sec. 25.1 How are claims of Federal employees who are neither citizens
nor residents adjudicated?
This part describes how OWCP pays compensation under the FECA to
employees of the United States who are neither citizens nor residents
of the United States, any territory or Canada, as well as to any
dependents of such employees. It has been determined that the
compensation provided under the FECA is substantially disproportionate
to the compensation for disability or death which is payable in similar
cases under local law, regulation, custom or otherwise, in areas
outside the United States, any territory or Canada. Therefore, with
respect to the claims of such employees whose injury (or injury
resulting in death) has occurred subsequent to December 7, 1941, or may
occur, the regulations in this part shall apply.
Sec. 25.2 In general, what is the Director's policy regarding such
claims?
(a) Pursuant to 5 U.S.C. 8137, the benefit features of local
workers' compensation laws, or provisions in the nature of workers'
compensation, in effect in areas outside the United States, any
territory or Canada shall, effective as of December 7, 1941 and as
recognized by the Director, be adopted and apply in the cases of
employees of the United States who are neither citizens nor residents
of the United States, any territory or Canada, unless a special
schedule of compensation for injury or death has been established under
this part for the particular locality, or for a class of employees in
the particular locality.
(b) The benefit provisions adopted under paragraph (a) of this
section are those dealing with money payments for injury and death
(including medical benefits), as well as those dealing with services
and purposes forming an integral part of the local plan, provided they
are of a kind or character similar to services and purposes authorized
by the FECA.
(1) Procedural provisions, designations of classes of beneficiaries
in death cases, limitations (except those affecting amounts of benefit
payments), and any other provisions not directly affecting the amounts
of the benefit payments, in such local plans, shall not apply, but in
lieu thereof the pertinent provisions of the FECA shall apply, unless
modified in this section.
(2) However, the Director may at any time modify, limit or
redesignate the class or classes of beneficiaries entitled to death
benefits, including the designation of persons, representatives or
groups entitled to payment under local statute or custom whether or not
included in the classes of beneficiaries otherwise specified by this
subchapter.
(c) Compensation in all cases of such employees paid and closed
prior to January 4, 1999 shall be deemed compromised and paid under 5
U.S.C. 8137. In all other cases, compensation may be adjusted to
conform with the regulations in this part, or the beneficiary may by
compromise or agreement with the Director have compensation continued
on the basis of a previous adjustment of the claim.
(d) Persons employed in a country or area having no well-defined
workers' compensation benefits structure shall be accorded the benefits
provided--either by local law or special schedule--in a nearby country
as determined by the Director. In selecting the benefit structure to be
applied, equity and administrative ease will be given consideration, as
well as local custom.
(e) Compensation for disability and death of non-citizens outside
the United States under this part, whether paid under local law or
special schedule, shall in no event exceed that generally payable under
the FECA.
Sec. 25.3 What is the authority to settle and pay such claims?
In addition to the authority to receive, process and pay claims,
when delegated such representative or agency receiving delegation of
authority shall, in respect to cases adjudicated under this part, and
when so authorized by the Director, have authority to make lump-sum
awards (in the manner prescribed by 5 U.S.C. 8135) whenever such
authorized representative shall deem such settlement to be for the best
interest of the United States, and to compromise and pay claims for any
benefits provided for under this part, including claims in which there
is a dispute as to questions of fact or law. The Director shall, in
instructions to the particular representative concerned, establish such
procedures in respect to action under this section as he or she may
deem necessary, and may specify the scope of any administrative review
of such action.
Sec. 25.4 What type of evidence is required to establish a claim under
this part?
Claims of employees of the United States who are neither citizens
nor residents of the United States, any territory or Canada, if
otherwise compensable, shall be approved only upon evidence of the
following nature without regard to the date of injury or death for
which claim is made:
(a) Appropriate certification by the Federal employing
establishment; or
(b) An armed service's casualty or medical record; or
(c) Verification of the employment and casualty by military
personnel; or
(d) Recommendation of an armed service's ``Claim Service'' based on
investigations conducted by it.
Sec. 25.5 What special rules does OWCP apply to claims of third and
fourth country nationals?
(a) Definitions. A ``third country national'' is a person who is
neither a citizen nor resident of the United States who is hired by the
United States in the person's country of citizenship or residence for
employment in another foreign country, or in a possession or territory
of the United States. A ``fourth country national'' is a person who is
neither a citizen nor resident of either the country of hire or the
place of employment, but who otherwise meets the definition of third
country national. ``Benefits applicable to local hires'' are the
benefits provided in this part by local law or special schedule, as
determined by the Director. With respect to a United States territory
or possession, ``local law'' means only the law of the particular
territory or possession.
(b) Benefits payable. Third and fourth country nationals shall be
paid the benefits applicable to local hires in the country of hire or
the place of employment, whichever benefits are greater, provided that
all benefits payable on account of one injury must be paid under the
same benefit structure.
(1) Where no well-defined workers' compensation benefits structure
is provided in either the country of hire or the place of employment,
the provisions of Sec. 25.2(d) shall apply.
(2) Where equitable considerations as determined by the Director so
warrant, a fourth country national may be awarded benefits applicable
to local hires in his or her home country.
Sec. 25.6 How does OWCP adjudicate claims of non-citizen residents of
possessions?
An employee who is a bona fide permanent resident of any United
States possession, territory, commonwealth or trust territory will
receive the full benefits of the FECA, as amended, except that the
application of the minimum benefit provisions provided therein shall be
governed by the restrictions set forth in 5 U.S.C. 8138.
[[Page 65342]]
Subpart B--The Special Schedule of Compensation
Sec. 25.100 How is compensation for disability paid?
Compensation for disability shall be paid to the employee as
follows:
(a) Permanent total disability. In cases of permanent total
disability, 66\2/3\ percent of the monthly pay during the period of
such disability.
(b) Temporary total disability. In cases of temporary total
disability, 66\2/3\ percent of the monthly pay during the period of
such disability.
(c) Permanent partial disability. In cases of permanent partial
disability, 66\2/3\ percent of the monthly pay, for the following
losses and periods:
(1) Arm lost: 280 weeks' compensation.
(2) Leg lost: 248 weeks' compensation.
(3) Hand lost: 212 weeks' compensation.
(4) Foot lost: 173 weeks' compensation.
(5) Eye lost: 140 weeks' compensation.
(6) Thumb lost: 51 weeks' compensation.
(7) First finger lost: 28 weeks' compensation.
(8) Great toe lost: 26 weeks' compensation.
(9) Second finger lost: 18 weeks' compensation.
(10) Third finger lost: 17 weeks' compensation.
(11) Toe, other than great toe, lost: 8 weeks' compensation.
(12) Fourth finger lost: 7 weeks' compensation.
(13) Loss of hearing: One ear, 52 weeks' compensation; both ears,
200 weeks' compensation.
(14) Phalanges: Compensation for loss of more than one phalanx of a
digit shall be the same as for the loss of the entire digit.
Compensation for loss of the first phalanx shall be one-half of the
compensation for the loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as for
the loss of the arm or leg; but, if amputated between the elbow and the
wrist, or between the knee and the ankle, the compensation shall be the
same as for the loss of the hand or the foot.
(16) Binocular vision or percent of vision: Compensation for loss
of binocular vision, or for 80 percent or more of the vision of an eye
shall be the same as for the loss of the eye.
(17) Two or more digits: Compensation for loss of two or more
digits, one or more phalanges of two or more digits of a hand or foot
may be proportioned to the loss of use of the hand or foot occasioned
thereby, but shall not exceed the compensation for the loss of a hand
or a foot.
(18) Total loss of use: Compensation for a permanent total loss of
use of a member shall be the same as for loss of the member.
(19) Partial loss or partial loss of use: Compensation for
permanent partial loss or loss of use of a member may be for
proportionate loss of use of the member.
(20) Consecutive awards: In any case in which there shall be a loss
or loss of use of more than one member or parts of more than one member
set forth in paragraphs (c)(1) through (19) of this section, but not
amounting to permanent total disability, the award of compensation
shall be for the loss or loss of use of each such member or part
thereof, which awards shall run consecutively, except that where the
injury affects only two or more digits of the same hand or foot,
paragraph (c)(17) of this section shall apply.
(21) Other cases: In all other cases within this class of
disability the compensation during the continuance of disability shall
be that proportion of compensation for permanent total disability, as
determined under paragraph (a) of this section, which is equal in
percentage to the degree or percentage of physical impairment caused by
the disability.
(22) Compensation under paragraphs (c)(1) through (21) of this
section for permanent partial disability shall be in addition to any
compensation for temporary total or temporary partial disability under
this section, and awards for temporary total, temporary partial, and
permanent partial disability shall run consecutively.
(d) Temporary partial disability. In cases of temporary partial
disability, during the period of disability, that proportion of
compensation for temporary total disability, as determined under
paragraph (b) of this section, which is equal in percentage to the
degree or percentage of physical impairment caused by the disability.
Sec. 25.101 How is compensation for death paid?
If the disability causes death, the compensation shall be payable
in the amount and to or for the benefit of the following persons:
(a) To the undertaker or person entitled to reimbursement,
reasonable funeral expenses not exceeding $200.
(b) To the surviving spouse, if there is no child, 35 percent of
the monthly pay until his or her death or remarriage.
(c) To the surviving spouse, if there is a child, the compensation
payable under paragraph (b) of this section, and in addition thereto 10
percent of the monthly wage for each child, not to exceed a total of
66\2/3\ percent for such surviving spouse and children. If a child has
a guardian other than the surviving spouse, the compensation payable on
account of such child shall be paid to such guardian. The compensation
of any child shall cease when he or she dies, marries or reaches the
age of 18 years, or if over such age and incapable of self-support,
becomes capable of self-support.
(d) To the children, if there is no surviving spouse, 25 percent of
the monthly pay for one child and 10 percent thereof for each
additional child, not to exceed a total of 66\2/3\ percent thereof,
divided among such children share and share alike. The compensation of
each child shall be paid until he or she dies, marries or reaches the
age of 18, or if over such age and incapable of self-support, becomes
capable of self-support. The compensation of a child under legal age
shall be paid to its guardian, if there is one, otherwise to the person
having the custody or care of such child, for such child, as the
Director in his or her discretion shall determine.
(e) To the parents, if one is wholly dependent for support upon the
deceased employee at the time of his or her death and the other is not
dependent to any extent, 25 percent of the monthly pay; if both are
wholly dependent, 20 percent thereof to each; if one is or both are
partly dependent, a proportionate amount in the discretion of the
Director. The compensation to a parent or parents in the percentages
specified shall be paid if there is no surviving spouse or child, but
if there is a surviving spouse or child, there shall be paid so much of
such percentages for a parent or parents as, when added to the total of
the percentages of the surviving spouse and children, will not exceed a
total of 66\2/3\ percent of the monthly pay.
(f) To the brothers, sisters, grandparents and grandchildren, if
one is wholly dependent upon the deceased employee for support at the
time of his or her death, 20 percent of the monthly pay to such
dependent; if more than one are wholly dependent, 30 percent of such
pay, divided among such dependents share and share alike; if there is
no one of them wholly dependent, but one or more are partly dependent,
10 percent of such pay divided among such dependents share and share
alike. The compensation to such beneficiaries shall be paid if there
[[Page 65343]]
is no surviving spouse, child or dependent parent. If there is a
surviving spouse, child or dependent parent, there shall be paid so
much of the above percentages as, when added to the total of the
percentages payable to the surviving spouse, children and dependent
parents, will not exceed a total of 66\2/3\ percent of such pay.
(g) The compensation of each beneficiary under paragraphs (e) and
(f) of this section shall be paid until he or she, if a parent or
grandparent, dies, marries or ceases to be dependent, or, if a brother,
sister or grandchild, dies, marries or reaches the age of 18 years, or
if over such age and incapable of self-support, becomes capable of
self-support. The compensation of a brother, sister or grandchild under
legal age shall be paid to his or her guardian, if there is one,
otherwise to the person having the custody or care of such person, for
such person, as the Director in his or her discretion shall determine.
(h) Upon the cessation of any person's compensation for death under
this subpart, the compensation of any remaining person entitled to
continuing compensation in the same case shall be adjusted, so that the
continuing compensation shall be at the same rate such person would
have received had no award been made to the person whose compensation
ceased.
(i) In cases where there are two or more classes of persons
entitled to compensation for death under this subpart, and the
apportionment of such compensation as provided in this section would
result in injustice, the Director may in his or her discretion modify
the apportionments to meet the requirements of the case.
Sec. 25.102 What general provisions does OWCP apply to the Special
Schedule?
(a) The definitions of terms in the FECA, as amended, shall apply
to terms used in this subpart.
(b) The provisions of the FECA, unless modified by this subpart or
otherwise inapplicable, shall be applied whenever possible in the
application of this subpart.
(c) The provisions of the regulations for the administration of the
FECA, as amended or supplemented from time to time by instructions
applicable to this subpart, shall apply in the administration of
compensation under this subpart, whenever they can reasonably be
applied.
Subpart C--Extensions of the Special Schedule of Compensation
Sec. 25.200 How is the Special Schedule applied for employees in the
Republic of the Philippines?
(a) Modified special schedule of compensation. Except for injury or
death of direct-hire employees of the U.S. Military Forces covered by
the Philippine Medical Care Program and the Employees' Compensation
Program pursuant to the agreement signed by the United States and the
Republic of the Philippines on March 10, 1982 who are also members of
the Philippine Social Security System, the special schedule of
compensation established in subpart B of this part shall apply, with
the modifications or additions specified in paragraphs (b) through (k)
of this section, in the Republic of the Philippines, to injury or death
occurring on or after July 1, 1968, with the following limitations:
(1) Temporary disability. Benefits for payments accruing on and
after July 1, 1969, for injuries causing temporary disability and which
occurred on and after July 1, 1968, shall be payable at the rates in
the special schedule as modified in this section.
(2) Permanent disability and death. Benefits for injuries occurring
on and after July 1, 1968, which cause permanent disability or death,
shall be payable at the rates specified in the special schedule as
modified in this section for all awards not paid in full before July 1,
1969, and any award paid in full prior to July 1, 1969: Provided, that
application for adjustment is made, and the adjustment will result in
additional benefits of at least $10. In the case of injuries or death
occurring on or after December 8, 1941 and prior to July 1, 1968, the
special schedule as modified in this section may be applied to
prospective awards for permanent disability or death, provided that the
monthly and aggregate maximum provisions in effect at the time of
injury or death shall prevail. These maxima are $50 and $4,000,
respectively.
(b) Death benefits. 400 weeks' compensation at two-thirds of the
weekly wage rate, shared equally by the eligible survivors in the same
class.
(c) Death beneficiaries. Benefits are payable to the survivors in
the following order of priority (all beneficiaries in the highest
applicable classes are entitled to share equally):
(1) Surviving spouse and unmarried children under 18, or over 18
and totally incapable of self-support.
(2) Dependent parents.
(3) Dependent grandparents.
(4) Dependent grandchildren, brothers and sisters who are unmarried
and under 18, or over 18 and totally incapable of self-support.
(d) Burial allowance. 14 weeks' wages or $400, whichever is less,
payable to the eligible survivor(s), regardless of the actual expense.
If there is no eligible survivor, actual burial expenses may be paid or
reimbursed, in an amount not to exceed what would be paid to an
eligible survivor.
(e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
(f) Permanent partial disability. Where applicable, the
compensation provided in paragraphs (c)(1) through (19) of Sec. 25.100,
subject to an aggregate limitation of 400 weeks' compensation. In all
other cases, provided for permanent total disability that proportion of
the compensation (paragraph (e) of this section) which is equivalent to
the degree or percentage of physical impairment caused by the
disability.
(g) Temporary partial disability. Two-thirds of the weekly loss of
wage-earning capacity.
(h) Compensation period for temporary disability. Compensation for
temporary disability is payable for a maximum period of 80 weeks.
(i) Maximum compensation. The total aggregate compensation payable
in any case, for injury or death or both, shall not exceed $8,000,
exclusive of medical costs and burial allowance. The weekly rate of
compensation for disability or death shall not exceed $35.
(j) Method of payment. Only compensation for temporary disability
shall be payable periodically. Compensation for permanent disability
and death shall be payable in full at the time the extent of
entitlement is established.
(k) Exceptions. The Director in his or her discretion may make
exceptions to the regulations in this section by:
(1) Reapportioning death benefits, for the sake of equity.
(2) Excluding from consideration potential death beneficiaries who
are not available to receive payment.
(3) Paying compensation for permanent disability or death on a
periodic basis, where this method of payment is considered to be in the
best interest of the beneficiary.
Sec. 25.201 How is the Special Schedule applied for employees in
Australia?
(a) The special schedule of compensation established by subpart B
of this part shall apply in Australia with the modifications or
additions specified in paragraph (b) of this section, as of
[[Page 65344]]
December 8, 1941, in all cases of injury (or death from injury) which
occurred between December 8, 1941 and December 31, 1961, inclusive, and
shall be applied retrospectively in all such cases of injury (or death
from injury). Compensation in all such cases pending as of July 15,
1946, shall be readjusted accordingly, with credit taken in the amount
of compensation paid prior to such date. Refund of compensation shall
not be required if the amount of compensation paid in any such case,
otherwise than through fraud, misrepresentation or mistake, and prior
to July 15, 1946, exceeds the amount provided for under this paragraph,
and such case shall be deemed compromised and paid under 5 U.S.C. 8137.
(b) The total aggregate compensation payable in any case under
paragraph (a) of this section, for injury or death or both, shall not
exceed the sum of $4,000, exclusive of medical costs. The maximum
monthly rate of compensation in any such case shall not exceed the sum
of $50.
(c) The benefit amounts payable under the provisions of the
Commonwealth Employees' Compensation Act of 1930-1964, Australia, shall
apply as of January 1, 1962, in Australia, as the exclusive measure of
compensation in cases of injury (or death from injury) according on and
after January 1, 1962, and shall be applied retrospectively in all such
cases, occurring on and after such date: Provided, that the
compensation payable under the provisions of this paragraph shall in no
event exceed that payable under the FECA.
Sec. 25.202 How is the Special Schedule applied for Japanese seamen?
(a) The special schedule of compensation established by subpart B
of this part shall apply as of November 1, 1971, with the modifications
or additions specified in paragraphs (b) through (i) of this section,
to injuries sustained outside the continental United States or Canada
by direct-hire Japanese seamen who are neither citizens nor residents
of the United States or Canada and who are employed by the Military
Sealift Command in Japan.
(b) Temporary total disability. Weekly compensation shall be paid
at 75 percent of the weekly wage rate.
(c) Temporary partial disability. Weekly compensation shall be paid
at 75 percent of the weekly loss of wage-earning capacity.
(d) Permanent total disability. Compensation shall be paid in a
lump sum equivalent to 360 weeks' wages.
(e) Permanent partial disability.
(1) The provisions of Sec. 25.100 shall apply to the types of
permanent partial disability listed in paragraphs (c)(1) through (19)
of that section: Provided that weekly compensation shall be paid at 75
percent of the weekly wage rate and that the number of weeks allowed
for specified losses shall be changed as follows:
(i) Arm lost: 312 weeks.
(ii) Leg lost: 288 weeks.
(iii) Hand lost: 244 weeks.
(iv) Foot lost: 205 weeks.
(v) Eye lost: 160 weeks.
(vi) Thumb lost: 75 weeks.
(vii) First finger lost: 46 weeks.
(viii) Second finger lost: 30 weeks.
(ix) Third finger lost: 25 weeks.
(x) Fourth finger lost: 15 weeks.
(xi) Great toe lost: 38 weeks.
(xii) Toe, other than great toe lost: 16 weeks.
(2) In all other cases, that proportion of the compensation
provided for permanent total disability in paragraph (d) of this
section which is equivalent to the degree or percentage of physical
impairment caused by the injury.
(f) Death. If there are two or more eligible survivors,
compensation equivalent to 360 weeks' wages shall be paid to the
survivors, share and share alike. If there is only one eligible
survivor, compensation equivalent to 300 weeks' wages shall be paid.
The following survivors are eligible for death benefits:
(1) Spouse who lived with or was dependent upon the employee.
(2) Unmarried children under 21 who lived with or were dependent
upon the employee.
(3) Adult children who were dependent upon the employee by reason
of physical or mental disability.
(4) Dependent parents, grandparents and grandchildren.
(g) Burial allowance. $1,000 payable to the eligible survivor(s),
regardless of actual expenses. If there are no eligible survivors,
actual expenses may be paid or reimbursed, up to $1,000.
(h) Method of payment. Only compensation for temporary disability
shall be payable periodically, as entitlement accrues. Compensation for
permanent disability and death shall be payable in a lump sum.
(i) Maxima. In all cases, the maximum weekly benefit shall be $130.
Also, except in cases of permanent total disability and death, the
aggregate maximum compensation payable for any injury shall be $40,000.
(j) Prior injury. In cases where injury or death occurred prior to
November 1, 1971, benefits will be paid in accordance with regulations
promulgated, contained in 20 CFR parts 1-399, edition revised as of
January 1, 1971.
Sec. 25.203 How is the Special Schedule applied to non-resident aliens
in the Territory of Guam?
(a) The special schedule of compensation established by subpart B
of this part shall apply, with the modifications or additions specified
in paragraphs (b) through (k) of this section, to injury or death
occurring on or after July 1, 1971 in the Territory of Guam to non-
resident alien employees recruited in foreign countries for employment
by the military departments in the Territory of Guam. However, the
Director may, in his or her discretion, adopt the benefit features and
provisions of local workers' compensation law as provided in subpart A
of this part, or substitute the special schedule in subpart B of this
part or other modifications of the special schedule in this subpart C,
if such adoption or substitution would be to the advantage of the
employee or his or her beneficiary. This schedule shall not apply to
any employee who becomes a permanent resident in the Territory of Guam
prior to the date of his or her injury or death.
(b) Death benefits. 400 weeks' compensation at two-thirds of the
weekly wage rate, shared equally by the eligible survivors in the same
class.
(c) Death beneficiaries. Beneficiaries of death benefits shall be
determined in accordance with the laws or customs of the country of
recruitment.
(d) Burial allowance. 14 weeks' wages or $400, whichever is less,
payable to the eligible survivor(s), regardless of the actual expense.
If there is no eligible survivor, actual burial expenses may be paid or
reimbursed, in an amount not to exceed what would be paid to an
eligible survivor.
(e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
(f) Permanent partial disability. Where applicable, the
compensation provided in paragraphs (c)(1) through (19) of Sec. 25.100,
subject to an aggregate limitation of 400 weeks' compensation. In all
other cases, that proportion of the compensation provided for permanent
total disability (paragraph (e) of this section) which is equivalent to
the degree or percentage of physical impairment caused by the
disability.
(g) Temporary partial disability. Two-thirds of the weekly loss of
wage-earning capacity.
(h) Compensation period for temporary disability. Compensation for
temporary disability is payable for a maximum period of 80 weeks.
[[Page 65345]]
(i) Maximum compensation. The total aggregate compensation payable
in any case, for injury or death or both, shall not exceed $24,000,
exclusive of medical costs and burial allowance. The weekly rate of
compensation for disability or death shall not exceed $70.
(j) Method of payment. Compensation for temporary disability shall
be payable periodically. Compensation for permanent disability and
death shall be payable in full at the time the extent of entitlement is
established.
(k) Exceptions. The Director may in his or her discretion make
exception to the regulations in this section by:
(1) Reapportioning death benefits for the sake of equity.
(2) Excluding from consideration potential beneficiaries of a
deceased employee who are not available to receive payment.
(3) Paying compensation for permanent disability or death on a
periodic basis, where this method of payment is considered to be in the
best interest of the employee or his or her beneficiary(ies).
Signed at Washington, D.C., this 17th day of November, 1998.
Alexis M. Herman,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards Administration.
[FR Doc. 98-31190 Filed 11-24-98; 8:45 am]
BILLING CODE 4510-27-P
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