[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2001 Edition]
[From the U.S. Government Printing Office]



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          20
          Parts 1 to 399
          Revised as of April 1, 2001

          Employees' Benefits





          Containing a codification of documents 
          of general applicability and future effect

          As of April 1, 2001

          With Ancillaries

          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

          A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2001



 For sale by the Superintendent of Documents, U.S. Government Printing Office
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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 20:
          Chapter I--Office of Workers' Compensation Programs, 
          Department of Labor                                        3
          Chapter II--Railroad Retirement Board                     91
  Finding Aids:
      Table of CFR Titles and Chapters........................     589
      Alphabetical List of Agencies Appearing in the CFR......     607
      Redesignation Tables....................................     617
      List of CFR Sections Affected...........................     627



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  20 CFR 1.1 refers 
                       to title 20, part 1, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
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parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2001.



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                               THIS TITLE

    Title 20--Employees' Benefits is composed of three volumes. The 
first volume, containing parts 1-399, includes all current regulations 
issued by the Office of Workers' Compensation Programs, Department of 
Labor and the Railroad Retirement Board. The second volume, containing 
parts 400-499, includes all current regulations issued by the Social 
Security Administration. The third volume, containing part 500 to End, 
includes all current regulations issued by the Employees' Compensation 
Appeals Board, the Employment and Training Administration, the 
Employment Standards Administration, the Benefits Review Board, the 
Office of the Assistant Secretary for Veterans' Employment and Training 
(all of the Department of Labor) and the Joint Board for the Enrollment 
of Actuaries. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of April 1, 2001.

    Redesignation tables appear in the Finding Aids section of the first 
and second volumes and an Index to chapter III appears in the second 
volume.

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                      TITLE 20--EMPLOYEES' BENEFITS




                   (This book contains parts 1 to 399)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Office of Workers' Compensation Programs, 
  Department of Labor.......................................           1

chapter ii--Railroad Retirement Board.......................         200

Cross Reference: Other regulations issued by the Department of Labor 
  appear in 20 CFR chapters IV, V, VI, VII and IX, 29 CFR subtitle A and 
  chapters II, IV, V, XVII and XXV, 30 CFR chapter I, 41 CFR chapters 
  50, 60, and 61, and 48 CFR chapter 29.

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 CHAPTER I--OFFICE OF WORKERS'COMPENSATION PROGRAMS,DEPARTMENT OF LABOR




  --------------------------------------------------------------------

                SUBCHAPTER A--ORGANIZATION AND PROCEDURES
Part                                                                Page
1               Performance of functions under this chapter.           5
            SUBCHAPTER B--FEDERAL EMPLOYEES' COMPENSATION ACT
10              Claims for compensation under the Federal 
                    Employees' Compensation Act, as amended.           7
25              Compensation for disability and death of 
                    noncitizen Federal employees outside the 
                    United States...........................          68
                       SUBCHAPTERS C-E [RESERVED]
   SUBCHAPTER F--COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY 
      DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES
61              Claims for compensation under the War 
                    Hazards Compensation Act, as amended....          77
 SUBCHAPTER G--COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN 
   AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE 
                      IMPERIAL JAPANESE GOVERNMENT
71              General provisions..........................          87

Cross Reference: Employees' and employers' taxes under Federal Insurance 
  Contributions Act and Excise tax on employers under Federal 
  Unemployment Tax Act: See Internal Revenue, 26 CFR part 31.

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                SUBCHAPTER A--ORGANIZATION AND PROCEDURES


PART 1--PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER--Table of Contents




Sec.
1.1  Establishment of the Office of Workers' Compensation Programs.
1.2  Assignment of functions.
1.3  Rules in this chapter.
1.4  Cross-references.
1.5  Abolition of Bureau of Employees' Compensation.
1.6  Historical background.

    Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15 FR 
3174, 64 Stat. 1263; (5 U.S.C. 8145, 8149); Secretary of Labor's Order 
No. 13-71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.

    Source: 40 FR 6876, Feb. 14, 1975, unless otherwise noted.



Sec. 1.1  Establishment of the Office of Workers' Compensation Programs.

    The Assistant Secretary of Labor for Employment Standards, by 
authority vested in him by the Secretary of Labor in Secretary's Order 
No. 13-71, 36 FR 8755, established in the Employment Standards 
Administration (ESA) an Office of Workers' Compensation Programs (OWCP) 
by Employment Standards Order No. 2-74, 39 FR 34722. The Assistant 
Secretary has further designated as the head thereof a Director who, 
under the general supervision of the Assistant Secretary, shall 
administer the programs assigned to that Office by the Assistant 
Secretary.



Sec. 1.2  Assignment of functions.

    By Employment Standards Order No. 2-74, 39 FR 34722, the Assistant 
Secretary has delegated authority and assigned responsibility to the 
Director, OWCP, for the Department of Labor's programs under the 
following statutes:
    (a) Federal Employees' Compensation Act (FECA), (5 U.S.C. 8101 et 
seq.), except 8149 as it applies to the Employees' Compensation Appeals 
Board.
    (b) War Hazards Compensation Act (WHCA), (42 U.S.C. 1701 et seq.).
    (c) War Claims Act (WCA), (50 U.S.C. App. 2003).
    (d) Longshoremen's and Harbor Workers' Compensation Act (LHWCA), (33 
U.S.C. 901 et seq.), except 921 as it applies to the Benefits Review 
Board.
    (e) District of Columbia Workmen's Compensation Act (DCWCA) (36 D.C. 
Code 501 et seq.).
    (f) Defense Base Act (DBA) (42 U.S.C. 1651 et seq.).
    (g) Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1331).
    (h) Nonappropriated Fund Instrumentalities Act (NFIA) (5 U.S.C. 8171 
et seq.).
    (i) Title IV of the Federal Coal Mine Health and Safety Act 
(FCMHSA), 83 Stat. 742, as amended by the Black Lung Benefits Act of 
1972 (BLBA) (30 U.S.C. 901 et seq.).



Sec. 1.3  Rules in this chapter.

    The rules in this chapter are those governing the OWCP functions 
under the Federal Employees' Compensation Act, the War Hazards 
Compensation Act, and the War Claims Act.



Sec. 1.4  Cross-references.

    (a) The rules of the OWCP governing its functions under the 
Longshoremen's and Harbor Workers' Compensation Act and its extensions, 
the District of Columbia Workmen's Compensation Act, Defense Base Act, 
Outer Continental Shelf Lands Act, and Nonappropriated Fund 
Instrumentalities Act are set forth in subchapter A of chapter VI of 
this title.
    (b) The rules of the OWCP governing its functions under the Black 
Lung Benefits Act program are set forth in subchapter B of chapter VI of 
this title.
    (c) The rules and regulations of the Employees' Compensation Appeals 
Board are set forth in chapter IV of this title.
    (d) The rules and regulations of the Benefits Review Board are set 
forth in chapter VII of this title.



Sec. 1.5  Abolition of Bureau of Employees' Compensation.

    By Secretary of Labor's Order issued September 23, 1974, 39 FR 
34723, issued concurrently with Employment Standards Order 2-74, 39 FR 
34722, the Secretary revoked the prior Secretary's Order No. 18-67, 32 
FR 12979, which had

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delegated authority and assigned responsibility for the various workers' 
compensation programs enumerated in Sec. 1.2, except the Black Lung 
Benefits Act program not then in existence, to the Director of the 
former Bureau of Employees' Compensation.



Sec. 1.6  Historical background.

    (a) Administration of the Federal Employees' Compensation Act and 
the Longshoremen's and Harbor Workers' Compensation Act was initially 
vested in an independent establishment known as the U.S. Employees' 
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR 
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the 
Commission was abolished and its functions were transferred to the 
Federal Security Agency to be performed by a newly created Bureau of 
Employees' Compensation within such Agency. By Reorganization Plan No. 
19 of 1950 (15 FR 3178, 64 Stat. 1263) said Bureau was transferred to 
the Department of Labor, and the authority formerly vested in the 
Administrator, Federal Security Agency, was vested in the Secretary of 
Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 64 Stat. 1263), 
the Secretary of Labor was authorized to make from time to time such 
provisions as he shall deem appropriate, authorizing the performance of 
any of his functions by any other officer, agency, or employee of the 
Department of Labor.
    (b) In 1972 two separate organizational units were established 
within the Bureau: an Office of Workmen's Compensation Programs (37 FR 
20533) and an Office of Federal Employees' Compensation (37 FR 22979). 
In 1974 these two units were abolished and one organizational unit, the 
Office of Workers' Compensation Programs (OWCP), was established in lieu 
of the Bureau of Employees' Compensation (39 FR 34722).

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            SUBCHAPTER B--FEDERAL EMPLOYEES' COMPENSATION ACT


PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED--Table of Contents




                      Subpart A--General Provisions

                              Introduction

Sec.
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?

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                     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?
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?

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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?

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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?

                                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?

[[Page 11]]

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.

    Source: 63 FR 65306, Nov. 25, 1998, unless otherwise noted.



                      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

[[Page 12]]

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.
    (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.

[[Page 13]]

    (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:
    (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

[[Page 14]]

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

[[Page 15]]

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 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

[[Page 16]]

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-16................................  Authorization of Examination
                                             and/or Treatment
(11) CA-17................................  Duty Status Report
(12) CA-20................................  Attending Physician's 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./dol/esa/owcp.htm.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]

                     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

[[Page 17]]

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 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

[[Page 18]]

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./dol/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./dol/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 condition. (The form contains the necessary words of 
claim.) The requirements for timely filing are described in 
Sec. 10.100(b)(1) through (3).

[[Page 19]]

    (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) Additional Forms CA-7 are used to claim compensation for 
additional periods of disability after the first Form CA-7 is submitted 
to OWCP.
    (1) It is the employee's responsibility to submit Form CA-7. 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-7 each two weeks until otherwise instructed by OWCP.
    (2) The employee shall complete the front of Form CA-7 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-20 is attached to Form CA-7 for this purpose.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



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./dol/esa/owcp.htm. The survivor must 
provide this notice in writing and forward it to the employer.

[[Page 20]]

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.



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

[[Page 21]]

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 another Form 
CA-7 for the purpose of claiming continuing compensation.
    (b) 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.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



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

[[Page 22]]

(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.



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.

[[Page 23]]

    (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

[[Page 24]]

(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, 
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);

[[Page 25]]

    (b) The first COP day is the first day disability begins following 
the date of injury (providing it is within the 45 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).

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



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 () 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  B = Weekly Pay Rate.
    (3) For intermittent and seasonal 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 () 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  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.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



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.

[[Page 26]]

                  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;
    (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 45 days following the injury.

[63 FR 65306, Nov. 25, 1998; 64 FR 12684, Mar. 12, 1999]



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.

[[Page 27]]



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).

[[Page 28]]

    (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 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

[[Page 29]]

(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, 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

[[Page 30]]

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

[[Page 31]]

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, while 
Form CA-20 may be used for the initial report and for subsequent 
reports, including 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.

[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]



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.

[[Page 32]]



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,

[[Page 33]]

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 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.

[[Page 34]]



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

[[Page 35]]

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 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

[[Page 36]]

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.



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

[[Page 37]]

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.

[[Page 38]]



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 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

[[Page 39]]

    (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

[[Page 40]]

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 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

[[Page 41]]

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.

[[Page 42]]

               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.



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

[[Page 43]]

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.

[[Page 44]]



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 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,

[[Page 45]]

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 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.

[[Page 46]]



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

[[Page 47]]

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.



                       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

[[Page 48]]

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

[[Page 49]]

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 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.

[[Page 50]]



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

[[Page 51]]

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.



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.

[[Page 52]]

    (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.

[[Page 53]]

    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).
    (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

[[Page 54]]

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:

[[Page 55]]

    (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 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                 22,000
 disbursements)..............................................
(6) Government's allowance for attorney's fees [25,000 /          -5,500
 100,000)  x  22,000] (attorney's fees divided by gross
 recovery then multiplied by Subtotal D).....................
                                                              ----------
  Refund to the United States................................     16,500
(7) Credit against future benefits [57,600 - 22,000]              35,600
 (Subtotal C minus refundable disbursements).................
 



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.

[[Page 56]]



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.



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

[[Page 57]]

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

[[Page 58]]

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.



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

[[Page 59]]

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

[[Page 60]]

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 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.

[[Page 61]]

    (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-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.

[[Page 62]]



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.

[[Page 63]]

    (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.
    (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

[[Page 64]]

at www.dol.gov./dol/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

[[Page 65]]

    (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 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

[[Page 66]]

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

[[Page 67]]

judge shall be governed by 29 CFR part 18.
    (b) The administrative law judge shall receive such relevant 
evidence as may be adduced at the hearing. Evidence shall be presented 
under oath, orally or in the form of written statements. The 
administrative law judge shall consider the Notice and Response, 
including all pertinent documents accompanying them, and may also 
consider any evidence which refers to the provider or to any claim with 
respect to which the provider has provided medical services, hospital 
services, or medical services and supplies, and such other evidence as 
the administrative law judge may determine to be necessary or useful in 
evaluating the matter.
    (c) All hearings shall be recorded and the original of the complete 
transcript shall become a permanent part of the official record of the 
proceedings.
    (d) 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

[[Page 68]]

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.



Part 25--Compensation for Disability and Death of Noncitizen Federal Employees Outside the United States--Table of Contents




                      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.

    Source: 63 FR 65340, Nov. 25, 1998, unless otherwise noted.

[[Page 69]]



                      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,

[[Page 70]]

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.



             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.

[[Page 71]]

    (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

[[Page 72]]

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 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

[[Page 73]]

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

[[Page 74]]

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 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

[[Page 75]]

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.
    (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.

[[Page 76]]

    (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).



                       SUBCHAPTERS C-E [RESERVED]

[[Page 77]]


   SUBCHAPTER F--COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY 
      DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES


PART 61--CLAIMS FOR COMPENSATION UNDER THE WAR HAZARDS COMPENSATION ACT, AS AMENDED--Table of Contents




                      Subpart A--General Provisions

Sec.
61.1  Statutory provisions.
61.2  Administration of the Act and this chapter.
61.3  Purpose and scope of this part.
61.4  Definitions and use of terms.

                  Subpart B--Reimbursement of Carriers

61.100  General reimbursement provisions.
61.101  Filing a request for reimbursement.
61.102  Disposition of reimbursement requests.
61.103  Examination of records of carrier.
61.104  Reimbursement of claims expense.
61.105  Direct payment of benefits.

         Subpart C--Compensation for Injury, Disability or Death

61.200  Entitlement to benefits.
61.201  Filing of notice and claim.
61.202  Time limitations for filing notice and claim.
61.203  Limitations on and deductions from benefits.
61.204  Furnishing of medical treatment.
61.205  Burial expense.
61.206  Reports by employees and dependents.

                      Subpart D--Detention Benefits

61.300  Payment of detention benefits.
61.301  Filing a claim for detention benefits.
61.302  Time limitations for filing a claim for detention benefits.
61.303  Determination of detention status.
61.304  Limitations on and deductions from detention benefits.
61.305  Responsibilities of dependents receiving detention benefits.
61.306  Transportation of persons released from detention and return of 
          employees.
61.307  Transportation of recovered bodies of missing persons.

                   Subpart E--Miscellaneous Provisions

61.400  Custody of records relating to claims under the War Hazards 
          Compensation Act.
61.401  Confidentiality of records.
61.402  Protection, release, inspection and copying of records.
61.403  Approval of claims for legal and other services.
61.404  Assignments; creditors.

    Authority: 1950 Reorg. Plan No. 19, sec. 1, 3 CFR, 1949-1953 Comp., 
p. 1010, 64 Stat. 1271; 5 U.S.C. 8145, 8149; 42 U.S.C. 1704, 1706; 
Secretary's Order 7-87, 52 FR 48466; Employment Standards Order 78-1, 43 
FR 51469.

    Source: 53 FR 3679, Feb. 8, 1988, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 61.1  Statutory provisions

    (a) The War Hazards Compensation Act, as amended (42 U.S.C. 1701 et 
seq.) provides for reimbursement of workers' compensation benefits paid 
under the Defense Base Act (42 U.S.C. 1651 et seq.), or under other 
workers' compensation laws as described in Sec. 61.100(a), for injury or 
death causally related to a war-risk hazard.
    (b) If no benefits are payable under the Defense Base Act or other 
applicable workers' compensation law, compensation is paid to the 
employee or survivors for the war-risk injury or death of--
    (1) Any person subject to workers' compensation coverage under the 
Defense Base Act;
    (2) Any person engaged by the United States under a contract for his 
or her personal services outside the continental United States;
    (3) Any person subject to workers' compensation coverage under the 
Nonappropriated Fund Instrumentalities Act (5 U.S.C. 8171 et seq.);
    (4) Any person engaged for personal services outside the continental 
United States under a contract approved and financed by the United 
States under the Mutual Security Act of 1954, as amended (other than 
title II of chapter II unless the Secretary of Labor, upon the 
recommendation of the head of any department or other agency of the U.S. 
Government, determines a contract financed under a successor provision 
of

[[Page 78]]

any successor Act should be covered by this subchapter), except that in 
cases where the United States is not a formal party to contracts 
approved and financed under the Mutual Security Act of 1954, as amended, 
the Secretary, upon the recommendation of the head of any department or 
agency of the United States, may waive the application of the Act; or
    (5) Any person engaged for personal services outside the continental 
United States by an American employer providing welfare or similar 
services for the benefit of the Armed Forces under appropriate 
authorization by the Secretary of Defense.
    (c) The Act also provides for payment of detention benefits to an 
employee specified in paragraph (a) of this section who--
    (1) If found to be missing from his or her place of employment under 
circumstances supporting a reasonable inference that the absence is due 
to the belligerent action of a hostile force or person;
    (2) Is known to have been taken by a hostile force or person as a 
prisoner or hostage; or
    (3) Is not returned to his or her home or to the place of employment 
due to the failure of the United States or its contractor to furnish 
transportation.



Sec. 61.2  Administration of the Act and this chapter.

    (a) Pursuant to 42 U.S.C. 1706, Secretary of Labor's Order 6-84, (49 
FR 32473), and Employment Standards Order 78-1, (43 FR 51469), the 
responsibility for administration of the Act has been delegated to the 
Director, Office of Workers' Compensation Programs.
    (b) In administering the provisions of the Act, the Director may 
enter into agreements or cooperative working arrangements with other 
agencies of the United States or of any State (including the District of 
Columbia, Puerto Rico, and the Virgin Islands) or political subdivisions 
thereof, and with other public agencies and private persons, agencies, 
or institutions within and outside the United States. The Director may 
also contract with insurance carriers for the use of their service 
facilities to process claims filed under the Act



Sec. 61.3  Purpose and scope of this part.

    (a) This part 61 sets forth the rules applicable to the filing, 
processing, and payment of claims for reimbursement and workers' 
compensation benefits under the provisions of the War Hazards 
Compensation Act, as amended. The provisions of this part are intended 
to afford guidance and assistance to any person, insurance carrier, 
self-insured employer, or compensation fund seeking benefits under the 
Act, as well as to personnel within the Department of Labor who 
administer the Act.
    (b) Subpart A describes the statutory and administrative framework 
within which claims under the Act are processed, contains a statement of 
purpose and scope, and defines terms used in the administration of the 
Act.
    (c) Subpart B describes the procedure by which an insurance carrier, 
self-insured employer, or compensation fund shall file a claim for 
reimbursement under section 104 of the Act, and describes the procedures 
for processing a claim for reimbursement and transferring a case for 
direct payment by the Department of Labor.
    (d) Subpart C contains the rules governing the filing and processing 
of a claim for injury, disability or death benefits under section 101(a) 
of the Act.
    (e) Subpart D contains provisions relating to claims for detention 
benefits under section 101(b) of the Act.
    (f) Subpart E contains miscellaneous provisions concerning 
disclosure of program information, approval of claims for legal 
services, and assignment of claim.



Sec. 61.4  Definitions and use of terms.

    For the purpose of this part--
    (a) The Act means the War Hazards Compensation Act, 42 U.S.C. 1701 
et seq., as amended.
    (b) Office or OWCP means the Office of Workers' Compensation 
Programs, Employment Standards Administration, United States Department 
of Labor.
    (c) Contractor with the United States includes any contractor, 
subcontractor or subordinate subcontractor.

[[Page 79]]

    (d) Carrier means any payer of benefits for which reimbursement is 
requested under the Act, and includes insurance carriers, self-insured 
employers and compensation funds.
    (e) War-risk hazard means any hazard arising during a war in which 
the United States is engaged; during an armed conflict in which the 
United States is engaged, whether or not war has been declared; or 
during a war or armed conflict between military forces of any origin, 
occurring within any country in which a person covered by the Act is 
serving; from--
    (1) The discharge of any missile (including liquids and gas) or the 
use of any weapon, explosive, or other noxious thing by a hostile force 
or person or in combating an attack or an imagined attack by a hostile 
force or person;
    (2) Action of a hostile force or person, including rebellion or 
insurrection against the United States or any of its allies;
    (3) The discharge or explosion of munitions intended for use in 
connection with a war or armed conflict with a hostile force or person 
(except with respect to employees of a manufacturer, processor, or 
transporter of munitions during the manufacture, processing, or 
transporting of munitions, or while stored on the premises of the 
manufacturer, processor, or transporter);
    (4) The collision of vessels in convoy or the operation of vessels 
or aircraft without running lights or without other customary peacetime 
aids to navigation; or
    (5) The operation of vessels or aircraft in a zone of hostilities or 
engaged in war activities.
    (f) Hostile force or person means any nation, any subject of a 
foreign nation, or any other person serving a foreign nation--
    (1) Engaged in a war against the United States or any of its allies;
    (2) Engaged in armed conflict, whether or not war has been declared, 
against the United States or any of its allies; or
    (3) Engaged in a war or armed conflict between military forces of 
any origin in any country in which a person covered by the Act is 
serving.
    (g) Allies means any nation with which the United States is engaged 
in a common military effort or with which the United States has entered 
into a common defensive military alliance.
    (h) War activities includes activities directly relating to military 
operations.
    (i) Continental United States means the States and the District of 
Columbia.
    (j) Injury means injury resulting from a war-risk hazard, as defined 
in this section, whether or not such injury occurred in the course of 
the person's employment, and includes any disease proximately resulting 
from a war-risk hazard.
    (k) Death means death resulting from an injury, as defined in this 
section.
    (l) The terms compensation, physician, and medical, surgical, and 
hospital services and supplies when used in subparts D and E are 
construed and applied as defined in the Federal Employees' Compensation 
Act, as amended (5 U.S.C. 8101 et seq.).
    (m) The terms disability, wages, child, grandchild, brother, sister, 
parent, widow, widower, student, adoption or adopted are construed and 
applied as defined in the Longshore and Harbor Workers' Compensation 
Act, as amended (35 U.S.C. 901 et seq.).



                  Subpart B--Reimbursement of Carriers



Sec. 61.100  General reimbursement provisions.

    (a) The Office shall reimburse any carrier that pays benefits under 
the Defense Base Act or other applicable workers' compensation law due 
to the injury, disability or death of any person specified in 
Sec. 61.1(a), if the injury or death for which the benefits are paid 
arose from a war-risk hazard. The amount to be reimbursed includes 
disability and death payments, funeral and burial expenses, medical 
expenses, and the reasonable and necessary claims expense incurred in 
processing the request.
    (b) The Office shall not provide reimbursement in any case in which 
an additional premium for war-risk hazard was charged, or in which the 
carrier

[[Page 80]]

has been reimbursed, paid, or compensated for the loss for which 
reimbursement is requested.
    (c) Reimbursement under this section with respect to benefits shall 
be limited to the amounts which will discharge the liability of the 
carrier under the applicable workers' compensation law.



Sec. 61.101  Filing a request for reimbursement.

    (a) A carrier or employer may file a request for reimbursement. The 
request shall be submitted to the U.S. Department of Labor, Office of 
Workers' Compensation Programs, Branch of Special Claims, P.O. Box 
37117, Washington, DC 20013-7117;
    (b) Each request for reimbursement shall include documentation 
itemizing the payments for which reimbursement is claimed. The 
documentation shall be sufficient to establish the purpose of the 
payment, the name of the payee, the date(s) for which payment was made, 
and the amount of the payment. Copies of any medical reports and bills 
related to medical examination or treatment for which reimbursement is 
claimed shall also be submitted. If the carrier cannot provide copies of 
the payment drafts or receipts, the Office may accept a certified 
listing of payments which includes payee name, description of services 
rendered, date of services rendered, amount paid, date paid check or 
draft number, and signature of certifier.
    (c) When filing an initial request for reimbursement under the Act, 
the carrier shall submit copies of all available documents related to 
the workers' compensation case, including--
    (1) Notice and claim forms;
    (2) Statements of the employee or employer;
    (3) Medical reports;
    (4) Compensation orders; and
    (5) Proof of liability (e.g., insurance policy or other 
documentation).



Sec. 61.102  Disposition of reimbursement requests.

    (a) If the Office finds that insufficient or inadequate information 
has been submitted with the claim, the carrier shall be asked to submit 
further information. Failure to supply the requested information may 
result in disallowance of items not adequately supported as properly 
reimbursable.
    (b) The Office shall not withhold payment of an approved part of a 
reimbursement request because of denial of another part of the 
reimbursement request.
    (c) The Office shall regard awards, decisions and approved 
settlement agreements under the Defense Base Act or other applicable 
workers' compensation law, that have become final, as establishing prima 
facie, the right of the beneficiary to the payment awarded or provided 
for.
    (d) The Office shall advise the carrier of the amount approved for 
reimbursement. If the reimbursement request has been denied in whole or 
in part, the Office shall provide the carrier an explanation of the 
action taken and the reasons for the action. A carrier within the United 
States may file objections with the Associate Director for Federal 
Employees' Compensation to the disallowance or reduction of a claim 
within 60 days of the Office's decision. A carrier outside the United 
States has six months within which to file objections with the Associate 
Director. The Office may consider objections filed beyond the time 
limits under unusual circumstances or when reasonable cause has been 
shown for the delay. A determination by the Office is final.
    (e) In determining whether a claim is reimbursable, the Office shall 
hold the carrier to the same degree of care and prudence as any 
individual or corporation in the protection of its interests or the 
handling of its affairs would be expected to exercise under similar 
circumstances. A part or an item of a claim may be disapproved if the 
Office finds that the carrier--
    (1) Failed to take advantage of any right accruing by assignment or 
subrogation (except against the United States, directly or indirectly, 
its employees, or members of its armed forces) due to the liability of a 
third party, unless the financial condition of the third party or the 
facts and circumstances surrounding the liability justify the failure;
    (2) Failed to take reasonable measures to contest, reduce, or 
terminate its liability by appropriate available

[[Page 81]]

procedure under workers' compensation law or otherwise; or
    (3) Failed to make reasonable and adequate investigation or injury 
as to the right of any person to any benefit or payment; or
    (4) Failed to avoid augmentation of liability by reason of delay in 
recognizing or discharging a compensation claimant's right to benefits.



Sec. 61.103  Examination of records of carrier.

    Whenever it is deemed necessary, the Office may request submission 
of case records or may inspect the records and accounts of a carrier for 
the purpose of verifying any allegation, fact or payment stated in the 
claim. The carrier shall furnish the records and permit or authorize 
their inspection as requested. The right of inspection shall also relate 
to records and data necessary for the determination of whether any 
premium or other charge was made with respect to the reimbursement 
claimed.



Sec. 61.104  Reimbursement of claims expense.

    (a) A carrier may claim reimbursement for reasonable and necessary 
claims expense incurred in connection with a case for which 
reimbursement is claimed under the Act. Reimbursement may be claimed for 
allocated and unallocated claims expense.
    (b) The term ``allocated claims expense'' includes payments made for 
reasonable attorneys' fees, court and litigation costs, expenses of 
witnesses and expert testimony, examinations, autopsies and other items 
of expense that were reasonably incurred in determining liability under 
the Defense Base Act or other workers' compensation law. Allocated 
claims expense must be itemized and documented as described in 
Sec. 61.101.
    (c) The term ``unallocated claims expense'' means costs that are 
incurred in processing a claim, but cannot be specifically itemized or 
documented. A carrier may receive reimbursement of unallocated claims 
expense in an amount of to 15% of the sum of the reimbursable payments 
made under the Defense Base Act or other workers' compensation law. If 
this method of computing unallocated claims expense would not result in 
reimbursement of reasonable and necessary claims expense, the Office 
may, in its discretion, determine an amount that fairly represents the 
expenses incurred.
    (d) The Office shall not consider as a claims expense any general 
administrative costs, general office maintenance costs, rent, insurance, 
taxes, or other similar general expenses. Nor shall expenses incurred in 
establishing or documenting entitlement to reimbursement under the Act 
be considered.



Sec. 61.105  Direct payment of benefits.

    (a) The Office may pay benefits, as they accrue, directly to any 
entitled beneficiary in lieu of reimbursement of a carrier.
    (b) The Office will not accept a case for direct payment until the 
right of the person or persons entitled to benefits has been established 
and the Office finds that the carrier would be entitled to reimbursement 
for continuing benefits.
    (c) The Office will not accept a case for direct payment until the 
rate of compensation or benefit and the period of payment have become 
relatively fixed and known. The Office may accept a case for direct 
payment before this condition has been satisfied, if the Office 
determines that direct payment is advisable due to the circumstances in 
that particular case.
    (d) In cases transferred to the Office for direct payment, medical 
care for the effects of a war-risk injury may be furnished in a manner 
consistent with the regulations governing the furnishing of medical care 
under the Federal Employees' Compensation Act, as amended (5 U.S.C. 
8101, et seq.).
    (e) The transfer of a case to the Office for direct payment does not 
affect the hearing or adjudicatory rights of a beneficiary or carrier as 
established under the Defense Base Act or other applicable workers' 
compensation law.
    (f) The Office may retransfer any case to a carrier either for the 
purpose of completion of adjudicatory processes or for continuation of 
payment of benefits.

[[Page 82]]



         Subpart C--Compensation for Injury, Disability or Death



Sec. 61.200  Entitlement to benefits.

    (a) Compensation under section 101(a) of the Act is payable for 
injury or death due to a war-risk hazard of an employee listed in 
Sec. 61.1(a), whether or not the person was engaged in the course of his 
or her employment at the time of the injury.
    (b) Compensation under this subpart is paid under the provisions of 
the Federal Employees' Compensation Act, as amended (5 U.S.C. 8101 et 
seq.), except that the determination of beneficiaries and the 
computation of compensation are made in accordance with sections 6, 8, 
9, and 10 of the Longshore and Harbor Workers' Compensation Act (33 
U.S.C. 901 et seq.).
    (c) The Office may not approve a claim for compensation if any of 
the following conditions are met:
    (1) The employee resides at or in the vicinity of the place of 
employment, does not live there solely due to the exigencies of the 
employment, and is injured outside the course of the employment.
    (2) The claim is filed due to the injury or death of a prisoner of 
war detained or utilized by the United States.
    (3) The person seeking benefits recovers or receives workers' 
compensation benefits from any other source for the same injury or 
death.
    (4) The person seeking benefits is a national of a foreign country 
and is entitled to compensation benefits from that or any other foreign 
country on account of the same injury or death.
    (5) The employee is convicted in a court of competent jurisdiction 
of any subversive act against the United States or any of its allies.



Sec. 61.201  Filing of notice and claim.

    An employee or his or her survivors may file a claim under section 
101(a) of the Act only after a determination has been made that no 
benefits are payable under the Defense Base Act administered by the 
Office's Division of Longshore and Harbor Workers' Compensation, Notice 
and claim may be filed on standard Longshore or Federal Employees' 
Compensation Act forms. The claimant shall submit notice and claim, 
along with any supporting documentation, to the U.S. Department of 
Labor, Office of Workers' Compensation Programs, Branch of Special 
Claims, P.O. Box 37117, Washington, DC 20013-7117.



Sec. 61.202  Time limitations for filing notice and claim.

    The time limitation provisions found in 5 U.S.C. 8119 apply to the 
filing of claims under section 101(a) of the War Hazards Compensation 
Act. The Office may waive the time limitations if it finds that 
circumstances beyond the claimant's control prevented the filing of a 
timely claim.



Sec. 61.203  Limitations on and deductions from benefits.

    (a) Compensation payable for injury, disability or death may not 
exceed the maximum limitations specified in section 6(b) of the 
Longshore and Harbor Workers' Compensation Act, as amended.
    (b) In determining benefits for disability or death, the Office 
shall not apply the minimum limits found in sections 6(b) and 9(e) of 
the Longshore and Harbor Workers' Compensation Act.
    (c) Compensation for death or permanent disability payable to 
persons who are not citizens of the United States and who are not 
residents of the United States or Canada is in the same amount as 
provided for residents, except that dependents in a foreign country are 
limited to the employee's spouse and children, or if there be no spouse 
or children, to the employee's father or mother whom the employee 
supported, either wholly or in part, for the period of one year 
immediately prior to the date of the injury. The Office may discharge 
its liability for all future payments of compensation to a noncitizen/
nonresident by paying a limp sum representing one-half the commuted 
value of all future compensation as determined by the Office.
    (d) If any employee or beneficiary receives or claims wages, 
payments in lieu of wages, or insurance benefits for disability or loss 
of life (other than workers' compensation benefits), and the cost of 
these payments is provided in whole or in part by the United

[[Page 83]]

States, the Office shall credit the amount of the benefits against any 
payments to which the person is entitled under the Act. The Office shall 
apply credit only where the wages, payments, or benefits received are 
items for which the contractor is entitled to reimbursement from the 
United States, or where they are otherwise reimbursable by the United 
States.
    (e) If an employee who is receiving workers' compensation benefits 
on account of a prior accident or disease sustains an injury compensable 
under the Act, the employee is not entitled to any benefits under the 
Act during the period covered by other workers' compensation benefits 
unless the injury from a war-risk hazard increases the employee's 
disability. If the war-risk injury increases the disability, 
compensation under the Act is payable only for the amount of the 
increase in disability. This provision is applicable only to disability 
resulting jointly from two unrelated causes, namely, (1) prior 
industrial accident or disease, and (2) injury from a war-risk hazard.
    (f) Compensation for disability under this subchapter, with the 
exception of allowances for scheduled losses of members or functions of 
the body, may not be paid for the same period of time during which 
benefits for detention under this subchapter are paid or accrued.



Sec. 61.204  Furnishing of medical treatment.

    All medical services, appliances, drugs and supplies which in the 
opinion of the Office are necessary for the treatment of an injury 
coming within the purview of section 101(a) of the Act shall be 
furnished to the same extent, and wherever practicable in the same 
manner and under the same regulations, as are prescribed for the 
furnishing of medical treatment under the Federal Employees' 
Compensation Act, as amended (5 U.S.C. 8101 et seq.).



Sec. 61.205  Burial expense.

    (a) When the death of a person listed in Sec. 61.1(a) results from 
an injury caused by a war-risk hazard, the Office shall pay reasonable 
burial expenses up to the amount specified in section 9 of the Longshore 
and Harbor Workers' Compensation Act. If any part of the burial expense 
has been paid by any other agency of the United States, or by any person 
under obligation to discharge burial expenses, the amount so paid shall 
be deducted from the burial expense payable by the Office. Payment will 
be made directly (1) to the undertaker, (2) to the estate of the 
deceased if the estate is obligated to make payment, or (3) to any 
person who has paid such burial expenses and is entitled to such 
reimbursement.
    (b) If the employee's home is within the United States and death 
occurs away from the employee's home or outside the United States, the 
Office may pay an additional sum for transporting the remains to the 
home.



Sec. 61.206  Reports by employees and dependents.

    The Office may require a claimant to submit reports of facts 
materially affecting the claimant's entitlement to compensation under 
the Act. These may include reports of recurrence or termination of 
disability, of employment and earnings, or of a change in the marital or 
dependency status of a beneficiary.



                      Subpart D--Detention Benefits



Sec. 61.300  Payment of detention benefits.

    (a) The Office shall pay detention benefits to any person listed in 
Sec. 61.1(a) who is detained by a hostile force or person, or who is not 
returned to his or her home or to the place of employment by reason of 
the failure of the United States or its contractor to furnish 
transportation. Benefits are payable for periods of absence on and 
subsequent to January 1, 1942, regardless of whether the employee was 
actually engaged in the course of his or her employment at the time of 
capture or disappearance.
    (b) For the purposes of paying benefits for detention, the employee 
is considered as totally disabled until the time that the employee is 
returned to his or her home, to the place of employment, or to the 
jurisdiction of the United States. The Office shall credit the 
compensation benefits to the employee's account, to be paid to the 
employee for the period of the absence or

[[Page 84]]

until the employee's death is in fact established or can be legally 
presumed to have occurred. A part of the compensation accruing to the 
employee may be disbursed during the period of absence to the employee's 
dependents.
    (c) During the period of absence of any employee detained by a 
hostile force or person, detention benefits shall be credited to the 
employee's account at one hundred percent of his or her average weekly 
wages. The average weekly wages may not exceed the average weekly wages 
paid to civilian employees of the United States performing the same or 
most similar employment in that geographic area. If there are eligible 
dependents, the Office may pay to these dependents seventy percent of 
the credited benefits.
    (d) The Office may not pay detention benefits under any of the 
following conditions:
    (1) The employee resides at or in the vicinity of the place of 
employment, does not live there solely due to the exigencies of the 
employment, and is detained under circumstances outside the course of 
the employment.
    (2) The person detained is a prisoner of war detained or utilized by 
the United States.
    (3) Workers' compensation benefits from any other source or other 
payments from the United States are paid for the same period of absence 
or detention.
    (4) The person seeking detention benefits is a national of a foreign 
country and is entitled to compensation benefits from that or any other 
foreign country on account of the same absence or detention.
    (5) The employee has been convicted in a court of competent 
jurisdiction of any subversive act against the United States or any of 
its allies.



Sec. 61.301  Filing a claim for detention benefits.

    (a) A claim for detention benefits shall contain the following 
information: Name, address, and occupation of the missing employee; 
name, address and relation to the employee of any dependent making 
claim; name and address of the employer; contract number under which 
employed; date, place and circumstances of capture or detention; date, 
place and circumstances of release (if applicable). The employer shall 
provide information about the circumstances of the detention and the 
employee's payrate at the time of capture. Dependents making claim for 
detention benefits may be required to submit all evidence available to 
them concerning the employment status of the missing person and the 
circumstances surrounding his or her absence.
    (b) A claim filed by a dependent or by the employee upon his or her 
release should be sent with any supporting documentation to the U.S. 
Department of Labor, Office of Workers' Compensation Programs, Branch of 
Special Claims, P.O. Box 37117, Washington, DC 20013-7117.



Sec. 61.302  Time limitations for filing a claim for detention benefits.

    The time limitation provisions found in the Federal Employees' 
Compensation Act, as amended (5 U.S.C. 8101 et seq.) apply to the filing 
of claims for detention benefits. The Office may waive the time 
limitations if it finds that circumstances beyond the claimant's control 
prevented the filing of a timely claim.



Sec. 61.303  Determination of detention status.

    A determination that an employee has been detained by a hostile 
force or person may be made on the basis that the employee has 
disappeared under circumstances that make detention appear probable. In 
making the determination, the Office will consider the information and 
the conclusion of the Department or agency of the United States having 
knowledge of the circumstances surrounding the absence of the employee 
as prima facie evidence of the employee's status. The presumptive status 
of total disability of the missing person shall continue during the 
period of the absence, or until death is in fact established or can be 
legally presumed to have occurred.



Sec. 61.304  Limitations on and deductions from detention benefits.

    (a) In determining benefits for detention, the Office shall not 
apply the minimum limits found in sections 6(b)

[[Page 85]]

and 9(e) of the Longshore and Harbor Workers' Compensation Act.
    (b) If any employee or dependent receives or claims wages, payments 
in lieu of wages, or insurance benefits for the period of detention, and 
the cost of the wages, payments or benefits is provided in whole or in 
part by the United States, the Office shall credit the amount of the 
benefits against any detention payments to which the person is entitled 
under the Act. The Office shall apply credit only where the wages, 
payments, or benefits received are items for which the contractor is 
entitled to reimbursement from the United States, or where they are 
otherwise reimbursable by the United States.



Sec. 61.305  Responsibilities of dependents receiving detention benefits.

    A dependent having knowledge of a change of status of a missing 
employee shall promptly inform the Office of the change. The Office must 
be advised immediately by the dependent if the employee is returned home 
or to the place of his or her employment, or is able to be returned to 
the jurisdiction of the United States.



Sec. 61.306  Transportation of persons released from detention and return of employees.

    (a) The Office may furnish the cost of transporting an employee from 
the point of the employee's release from detention to his or her home, 
the place of employment, or other place within the jurisdiction of the 
United States. The Office shall not pay for transportation if the 
employee is furnished the transportation under any agreement with his or 
her employer or under any other provision of law.
    (b) The Office may furnish the cost of transportation under 
circumstances not involving detention, if the furnishing of 
transportation is an obligation of the United States or its contractor, 
and the United States or its contractor fails to return the employee to 
his or her home or to the place of employment.



Sec. 61.307  Transportation of recovered bodies of missing persons.

    If an employee dies while in detention and the body is later 
recovered, the Office may provide the cost of transporting the body to 
the home of the deceased or to any place designated by the employee's 
next of kin, near relative, or legal representative.



                   Subpart E--Miscellaneous Provisions



Sec. 61.400  Custody of records relating to claims under the War Hazards Compensation Act.

    All records, medical and other reports, statements of witnesses and 
other papers filed with the Office with respect to the disability, 
death, or detention of any person coming within the purview of the Act, 
are the official records of the Office and are not records of the 
agency, establishment, Government department, employer, or individual 
making or having the care or use of such records.



Sec. 61.401  Confidentiality of records.

    Records of the Office pertaining to injury, death, or detention are 
confidential, and are exempt from disclosure to the public under section 
552(b)(6) of title 5, U.S. Code. No official or employee of the United 
States who has investigated or secured statements from witnesses and 
others pertaining to any case within the purview of the Act, or any 
person having the care or use of such records, shall disclose 
information from or pertaining to such records to any person, except in 
accordance with applicable regulations (see 29 CFR part 70a).



Sec. 61.402  Protection, release, inspection and copying of records.

    The protection, release, inspection and copying of the records shall 
be accomplished in accordance with the rules, guidelines and provisions 
contained in 29 CFR parts 70 and 70a and the annual notice of systems of 
records and routine uses as published in the Federal Register.

[[Page 86]]



Sec. 61.403  Approval of claims for legal and other services.

    (a) No claim for legal services or for any other services rendered 
in respect to a claim or award for compensation under the Act to or on 
account of any person shall be valid unless approved by the Office. Any 
such claim approved by the Office shall, in the manner and to the extent 
fixed by the Office, be paid out of the compensation payable to the 
claimant.
    (b) The Office shall not recognize a contract for a stipulated fee 
or for a fee on a contingent basis. No fee for services shall be 
approved except upon application supported by a sufficient statement of 
the extent and character of the necessary work done on behalf of the 
claimant. Except where the claimant was advised that the representation 
would be rendered on a gratuitous basis, the fee approved shall be 
reasonably commensurate with the actual necessary work performed by the 
representative, and with due regard to the capacity in which the 
representative appeared, the amount of compensation involved, and the 
circumstances of the claimant.



Sec. 61.404  Assignments; creditors.

    The right of any person to benefits under the Act is not 
transferable of assignable at law or in equity except to the United 
States, and none of the moneys paid or payable (except money paid as 
reimbursement for funeral expenses), or rights existing under the Act 
are subject to execution, levy, attachment, garnishment, or other legal 
process or to the operation of any bankruptcy or insolvency law.

[[Page 87]]





 SUBCHAPTER G--COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN 
   AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE 
                      IMPERIAL JAPANESE GOVERNMENT


PART 71--GENERAL PROVISIONS--Table of Contents




Sec.
71.1  General administrative provisions.
71.2  Computation of benefits.
71.3  Deductions from benefits.
71.4  Limitation upon benefits.
71.5  Payment of benefits.
71.6  Notice of injury or death.
71.7  Claim filing, processing, adjudication and time limits.

    Authority: Sec. 32, 39 Stat. 749, as amended, sec. 106, 56 Stat. 
1033, as amended, sec. 5, 62 Stat. 1242, as amended; 5 U.S.C. 8145, 
8149, 42 U.S.C. 1706, 50 U.S.C. App., 2004.

    Source: 16 FR 2933, Apr. 4, 1951, unless otherwise noted.



Sec. 71.1  General administrative provisions.

    (a) Section 5(f) of the War Claims Act of 1948 (act of July 3, 1948; 
Pub. L. 896, 80th Cong., 62 Stat. 1240) makes provision for the payment 
of benefits with respect to the injury, disability or death resulting 
from injury of any civilian American citizen occurring while he was held 
by or in hiding from the Imperial Japanese Government to the same extent 
as if such civilian American citizen were an employee within the purview 
of the act of December 2, 1942 (Pub. L. 784, 77th Cong., 56 Stat. 1028, 
42 U.S.C. 1701, et seq.). Under section 5(f) of the said War Claims Act 
of 1948, the rights of individuals to benefits payable under this 
subchapter shall accrue from and after December 7, 1941, subject, 
however, to all of the provisions of said act and the regulations in 
this subchapter.
    (b) The regulations in part 61 of subchapter F of this chapter 
governing the administration of the benefits provided under titles I and 
II of the said act of December 2, 1942, as amended, shall, insofar as 
they are applicable and are not inconsistent with any of the provisions 
of this subchapter, govern the administration of the benefits payable 
under this subchapter. Provisions of such regulations relating to 
benefits for detention by the enemy, reimbursement to an employer or 
insurance carrier, and limitations on benefits in cases where workmen's 
compensation is payable are not applicable to the benefits provided in 
this subchapter nor are they within the purview of this subchapter. The 
provisions of sections 101(b), 104 and 105 of such act of December 2, 
1942, and the various provisions of part 61 of this chapter relating to 
such provisions, accordingly, are not applicable to the payment of 
benefits under this subchapter.
    (c) All rights or benefits under this subchapter which are 
determinable with reference to other provisions of law other than the 
said War Claims Act of 1948, shall be determined with reference to such 
provisions as they existed and were in force on January 3, 1948.
    (d) As used in this subchapter:
    (1) The term ``Bureau'' means the Bureau of Employees' Compensation, 
U.S. Department of Labor.
    (2) The term ``civilian American citizen'' means any person who, 
being then a citizen of the United States, was captured by the Imperial 
Japanese Government on or after December 7, 1941, at Midway, Guam, Wake 
Island, the Philippine Islands, or any Territory or possession of the 
United States attacked or invaded by such government or while in transit 
to or from any such place, or who went into hiding at any such place in 
order to avoid capture or internment by such government; except (i) a 
person who at any time voluntarily gave aid to, collaborated with, or in 
any manner served such government, or (ii) a person who at the time of 
his capture or entrance into hiding was within the purview of the 
Federal Employees' Compensation Act of September 7, 1918, as amended and 
extended, or the said act of December 2, 1942, as amended, or the 
Missing Persons Act of March 7, 1942 (56 Stat. 143), as amended, or who 
was a regularly appointed, enrolled, enlisted, or

[[Page 88]]

inducted member of any military or naval force.
    (3) The terms ``held by the Imperial Japanese Government'' or 
``captured by the Imperial Japanese Government'' mean a holding of such 
person as a prisoner, internee, hostage or in any other capacity.
    (4) The terms ``compensation'', ``physician'' and ``medical, 
surgical and hospital services and supplies'' shall be construed and 
applied as defined in the Federal Employees' Compensation Act of 
September 7, 1916, as amended.
    (5) The term ``benefit'' is construed as synonymous with the term 
``compensation''.
    (6) The terms ``disability'', ``wages'', ``child'', ``grandchild'', 
``brother'', ``sister'', ``parent'', ``widow'', ``widower'', 
``adoption'' or ``adopted'' shall be construed and applied as defined in 
the Longshoremen's and Harbor Workers' Compensation Act, as amended.



Sec. 71.2  Computation of benefits.

    (a) For the purpose of determining the benefits under this 
subchapter, the average weekly wage of any such civilian American 
citizen, whether employed, self-employed, or not employed, shall be 
deemed to have been $37.50. The provisions of this subchapter are 
applicable and benefits are payable whether or not such civilian 
American citizen was employed. Monthly compensation in cases involving 
partial disability shall be determined by the percentage which the 
degree of partial disability bears to total disability, and shall not be 
determined with respect to the extent of loss of wage-earning capacity.
    (b) Notwithstanding any of the provisions of part 61 of this 
chapter, total maximum aggregate compensation for disability payable 
under this subchapter is limited to $7,500 in case of injury and $7,500 
in case of death, such sum being exclusive of medical costs and funeral 
and burial expenses.



Sec. 71.3  Deductions from benefits.

    If a civilian American citizen or his dependents receives or has 
received from the United States any payments on account of the same 
injury or death, or from his employer in the form of wages or payments 
in lieu of wages, or in any form of support or compensation (including 
workmen's compensation) in respect to the same objects, the benefits 
under this subchapter shall be diminished in the case of an injured 
person by the amount of payments such injured person received on account 
of the same injury or disability, or in the case of dependents, by the 
amount of payments such dependents of the deceased civilian American 
citizen received on account of the same death, as the case may be.



Sec. 71.4  Limitation upon benefits.

    No person, except a widow or a child, shall be entitled to benefits 
under this subchapter for disability with respect to himself and to 
death benefits on account of the death of another.



Sec. 71.5  Payment of benefits.

    (a) Benefits under this subchapter payable for disability or death 
shall be paid only to the person entitled thereto, or to his legal or 
natural guardian if he has one, and shall not upon death of the person 
so entitled survive for the benefit of his estate or any other person.
    (b) The benefit of a minor or an incompetent person who has no 
natural or legal guardian may, in the discretion of the Bureau be paid 
in whole or in such part as the Bureau may determine, for and on behalf 
of such minor or incompetent directly to the person or institution 
caring for, supporting or having custody of such minor or incompetent.
    (c) In any case in which benefits are payable under this subchapter 
to any person who is prevented from accepting such benefits by the 
rules, regulations or customs of the church or the religious order or 
organization of which he is a member, such benefits will be paid, upon 
the request of such person, to such church or to such religious order or 
organization.



Sec. 71.6  Notice of injury or death.

    Notwithstanding any of the provisions in part 61 of this chapter, no 
notice or report of injury or death shall be required for claims filed 
under this subchapter.

[[Page 89]]



Sec. 71.7  Claim filing, processing, adjudication and time limits.

    (a) Claims for injury, disability or death benefits payable under 
section 5(f) of the said War Claims Act of 1948, originating in the 
United States or in its Territories or possessions, shall be filed by 
mailing to the Bureau of Employees' Compensation, United States 
Department of Labor, Washington, DC 20211. All claims originating in the 
Philippine Islands may be filed by mailing to the Bureau of Employees' 
Compensation, United States Department of Labor, Manila, P.I. All claims 
will be finally processed and adjudicated by the Bureau at its principal 
office in Washington, DC.
    (b) The limitation provisions for the filing of claims for 
disability or death benefits, as prescribed by applicable provisions of 
statute, shall not begin to run earlier than July 3, 1948.

[[Page 91]]



                  CHAPTER II--RAILROAD RETIREMENT BOARD




  --------------------------------------------------------------------

                  SUBCHAPTER A--GENERAL ADMINISTRATION
Part                                                                Page
200             General administration......................          95
       SUBCHAPTER B--REGULATIONS UNDER THE RAILROAD RETIREMENT ACT
201             Definitions.................................         124
202             Employers under the Act.....................         124
203             Employees under the Act.....................         129
204             Employment relation.........................         132
205             Employee representative.....................         134
209             Railroad employers' reports and 
                    responsibilities........................         135
210             Creditable railroad service.................         139
211             Creditable railroad compensation............         143
212             Military service............................         147
216             Eligibility for an annuity..................         149
217             Application for annuity or lump sum.........         166
218             Annuity beginning and ending dates..........         174
219             Evidence required for payment...............         184
220             Determining disability......................         196
221             Jurisdiction determinations.................         361
222             Family relationships........................         362
225             Primary insurance amount determinations.....         375
226             Computing employee, spouse, and divorced 
                    spouse annuities........................         387
227             Computing supplemental annuities............         399
228             Computation of survivor annuities...........         401
229             Social security overall minimum guarantee...         408
230             Months annuities not payable by reason of 
                    work....................................         421
233             Reduction in the windfall benefit annuity 
                    component...............................         422
234             Lump-sum payments...........................         423
235             Payment of Social Security benefits by the 
                    Railroad Retirement Board...............         431
236-238         [Reserved]
240             [Reserved]
243             Transfer, assignment, or waiver of payments.         432
250             [Reserved]

[[Page 92]]

255             Recovery of overpayments....................         433
258             Hearings before the Board or designated 
                    examiners...............................         440
259             Initial determinations and appeals from 
                    initial determinations with respect to 
                    employer status and employee status.....         442
260             Requests for reconsideration and appeals 
                    within the Board from decisions issued 
                    by the Bureau of Disability and Medicare 
                    Operations, Bureau of Retirement 
                    Benefits, Bureau of Survivor Benefits, 
                    Office of Retirement and Survivor 
                    Programs, and the Bureau of Research and 
                    Employment Accounts.....................         444
261             Administrative finality.....................         454
262             [Reserved]
266             Representative payment......................         457
295             Payments pursuant to court decree or court-
                    approved property settlement............         463
 SUBCHAPTER C--REGULATIONS UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT
300             Definitions.................................         470
301             Employers under the Act.....................         470
302             Qualified employee..........................         471
319             Procedure for determining liability for 
                    contributions or repayments of benefits.         473
320             Initial determinations under the Railroad 
                    Unemployment Insurance Act and reviews 
                    of and appeals from such determinations.         476
322             Remuneration................................         484
323             Nongovernmental plans for unemployment or 
                    sickness insurance......................         489
325             Registration for railroad unemployment 
                    benefits................................         491
327             Available for work..........................         496
330             Determination of daily benefit rates........         498
332             Mileage or work restrictions and stand-by or 
                    lay-over rules..........................         501
335             Sickness benefits...........................         503
336             Duration of normal and extended benefits....         508
337             [Reserved]
340             Recovery of benefits........................         511
341             Statutory lien where sickness benefits paid.         517
344             [Reserved]
345             Employers' contributions and contribution 
                    reports.................................         519
346             Railroad hiring.............................         536
348             Representative payment......................         536

[[Page 93]]

349             Finality of decisions regarding unemployment 
                    and sickness insurance benefits.........         537
                  SUBCHAPTER D--GARNISHMENT OF BENEFITS
350             Garnishment of benefits paid under the 
                    Railroad Retirement Act, the Railroad 
                    Unemployment Insurance Act, and under 
                    any other act administered by the Board.         540
     SUBCHAPTER E--ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS OR 
                               STATEMENTS
355             Regulations under the Program Fraud Civil 
                    Remedies Act of 1986....................         543
356             Civil monetary penalty inflation adjustment.         558
      SUBCHAPTER F--INTERNAL ADMINISTRATION, POLICY AND PROCEDURES
360             [Reserved]
361             Recovery of debts owed to the United States 
                    Government by Government employees......         559
362             Employees' personal property claims.........         564
363             Garnishment of remuneration of Board 
                    personnel...............................         567
364             Use of penalty mail to assist in the 
                    location and recovery of missing 
                    children................................         569
365             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Railroad 
                    Retirement Board........................         570
366             Collection of debts by Federal tax refund 
                    offset..................................         576
367             Recovery of debts owed to the United States 
                    Government by administrative offset.....         577
368             Prohibition of cigarette sales to minors....         580
                         SUBCHAPTER G [RESERVED]
                   SUBCHAPTER H--EMERGENCY REGULATIONS
375             Plan of operation during a national 
                    emergency...............................         582
                         SUBCHAPTER I [RESERVED]

Cross References: Social Security Administration: See chapter III of 
  this title; Rules of Procedure, National Railroad Adjustment Board: 
  See 29 CFR, chapter III.

[[Page 95]]


                  SUBCHAPTER A--GENERAL ADMINISTRATION


PART 200--GENERAL ADMINISTRATION--Table of Contents




Sec.
200.1  Designation of central and field organization.
200.2  The general course and method by which the Board's functions are 
          channeled and determined.
200.3  Obtaining forms from the Railroad Retirement Board.
200.4  Availability of information to public.
200.5  Protection of privacy of records maintained on individuals.
200.6  Open meetings.
200.7  Assessment or waiver of interest, penalties, and administrative 
          costs with respect to collection of certain debts.
200.8  Disclosure of information obtained in the administration of the 
          Railroad Retirement Act and the Railroad Unemployment 
          Insurance Act.
200.9  Selection of members of Actuarial Advisory Committee.
200.10  Representatives of applicant or beneficiaries.

    Authority: 45 U.S.C. 231f(b)(5) and 45 U.S.C. 362; Sec. 200.4 also 
issued under 5 U.S.C. 552; Sec. 200.5 also issued under 5 U.S.C. 552a; 
Sec. 200.6 also issued under 5 U.S.C. 552b; and Sec. 200.7 also issued 
under 31 U.S.C. 3717.



Sec. 200.1  Designation of central and field organization.

    (a) Introduction. (1) The Railroad Retirement Board (hereinafter 
referenced as the ``Board'') is an independent agency in the executive 
branch of the Federal Government and is administered by three members 
appointed by the President, with the advice and consent of the Senate. 
By law, one member is appointed upon recommendations made by railroad 
labor organizations, one upon recommendations of railroad employers, and 
the third member, the Chairman, is in effect independent of employees 
and employers and represents the public interest. The terms of office 
are five years and are arranged so as to expire in different calendar 
years.
    (2) The primary function of the Board is the determination and 
payment of benefits under the retirement-survivor and unemployment-
sickness programs. To this end, the Board must maintain lifetime 
earnings records for covered employees, a network of field offices to 
assist railroad personnel and their dependents in filing claims for 
benefits, and examiners to adjudicate the claims.
    (3) The Board administers the Railroad Retirement Act and the 
Railroad Unemployment Insurance Act. The Railroad Retirement Tax Act, 
which imposes employment taxes to fund the railroad retirement system, 
is administered by the Internal Revenue Service of the U.S. Department 
of Treasury. The Board also participates in the administration of the 
Federal Medicare health insurance program.
    (4) The headquarters of the Board is in Chicago, Illinois, at 844 
Rush Street. The Board maintains numerous district offices across the 
country in localities easily accessible to large numbers of railroad 
workers, in addition to five regional offices located in Atlanta, 
Georgia; Hackensack, New Jersey; Cleveland, Ohio; Kansas City, Missouri; 
and, San Francisco, California.
    (b) Internal organization. (1) In addition to the three Board 
Members, there is an Executive Director who reports directly to the 
Board Members and who is responsible for the overall administrative 
direction and coordination of the work of the entire Board organization.
    (2) Responsibility for Board operations is concentrated in seven 
Associate Executive Directors, who report directly to the Executive 
Director and who serve on an Executive Committee advising the Executive 
Director on matters of agency-wide impact. The Associate Executive 
Director for Legal and Administrative Services is responsible for legal, 
appeals, personnel, legislative, information management, and internal 
services. The Associate Executive Director for Program Analysis is 
responsible for research, actuarial, and compensation operations. The 
Associate Executive Director for Retirement Claims is responsible for 
all claims operations under the Railroad Retirement Act. The Associate 
Executive Director for Unemployment and Sickness Insurance is 
responsible for

[[Page 96]]

all claims operations under the Railroad Unemployment Insurance Act, as 
well as certain employee protection laws, and the Associate Executive 
Director for Field Service is responsible for all district and regional 
office operations. There is also an Associate Executive Director for 
Fiscal Operations and an Associate Executive Director for Data 
Processing.
    (3) Further, the following offices provide administrative and other 
services in support of Board Operations: Office of Equal Employment 
Opportunity, Washington Legislative/Liaison Office, Office of Planning, 
Office of Public Affairs and Bureau of Quality Assurance.
    (c) Office of Inspector General. The Railroad Retirement Solvency 
Act of 1983 established the Office of Inspector General within the Board 
to be governed by the Inspector General Act of 1978. As structured, the 
Inspector General reports directly to the Chairman. The Office of 
Inspector General is responsible for policy direction and conduct of 
audit, inspection, and investigation activities relating to program and 
operations of the Board; and maintaining liaison with other law 
enforcement agencies, the Department of Justice, and United States 
Attorneys on all matters relating to the detection and prevention of 
fraud and abuse. The Inspector General reports semi-annually to the 
Congress through the Chairman concerning fraud, abuses, other serious 
problems, and deficiencies of agency programs and operations; recommends 
corrective action; and, reports on progress made in implementing these 
actions.

[52 FR 11010, Apr. 6, 1987]



Sec. 200.2  The general course and method by which the Board's functions are channeled and determined.

    (a) Retirement and death benefits. (1) Retirement and death benefits 
must be applied for by filing application therefor. (For details as to 
application, see parts 210 and 237 of this chapter). The Bureau of 
Retirement Claims considers the application and the evidence and 
information submitted with it. Wage and service records maintained by 
the Board are checked and if necessary, further evidence is obtained 
from the employee, the employer, fellow employees, public records and 
any other person or source available. The Bureau makes initial decisions 
on the following matters:
    (i) Applications for benefits;
    (ii) Requests for the withdrawal of an application;
    (iii) Requests for a change in an annuity beginning date;
    (iv) The termination of an annuity;
    (v) The modification of the amount of an annuity or lump sum;
    (vi) Requests for the reinstatement of an annuity which had been 
terminated or modified;
    (vii) The existence of an erroneous payment;
    (viii) The eligibility of an individual for a supplemental annuity 
or the amount of such supplemental annuity.
    (ix) Whether representative payments shall serve the interests of an 
individual by reason of his incapacity to manage his annuity payments; 
and
    (x) Who shall be appointed or continued as representative payee on 
behalf of an annuitant.
    (2) A claimant dissatisfied with the Bureau's decision may, upon 
filing notice within one year from the date the decision is mailed to 
the claimant, appeal to the Bureau of Hearings and Appeals. Provided, 
however, That (i) an individual under age 16 shall not have the right to 
appeal a finding of incapacity to manage his annuity payments, but shall 
have the right to contest on appeal that he is, in fact, under age 16; 
(ii) an individual who has been adjudged legally incompetent shall not 
have the right to appeal a finding of incapacity to manage his annuity 
payments, but shall have the right to contest on appeal the fact of his 
having been adjudged legally incompetent; and (iii) an individual shall 
not have the right to appeal a denial of his application to serve as 
representative payee on behalf of an annuitant. There he may have an 
oral hearing before a hearings officer of which a stenographic record is 
made, submit additional evidence, be represented, and present written 
and oral argument. If dissatisfied with the decision of the hearings 
officer, the claimant may appeal to the Board itself. This appeal must 
be made on a prescribed form within four months of the date a copy

[[Page 97]]

of the hearings officer's decision was mailed to him. If new evidence is 
received, the Board may remand the case to the hearings officer for 
investigation and recommendation concerning the new evidence. (For 
details on appeals procedure, see part 260 of this chapter.) A claimant, 
after he has unsuccessfully appealed to the Board itself and has thus 
exhausted all administrative remedies within the Board, may obtain a 
review of a final decision of the Board by filing a petition for review, 
within one year after the entry of the decision on the records of the 
Board and its communication to the claimant, in the U.S. Court of 
Appeals for the circuit in which the claimant resides, or in the U.S. 
Court of Appeals for the Seventh Circuit, or in the U.S. Court of 
Appeals for the District of Columbia Circuit.
    (b) Unemployment, sickness, and maternity benefits. (1) Claims for 
unemployment benefits are handled by a comprehensive organization set up 
in the field. Under agreements between the Railroad Retirement Board and 
covered employers, the employers select employees of theirs to act as 
unemployment claims agents. These agents perform their services, 
specified in the agreement, in accordance with instructions issued by 
the Board but under general supervision and control of the employer. In 
accordance with the agreements, employers are reimbursed for such 
services at the rate of 50 cents for each claim taken by an unemployment 
claims agent and transmitted to the Board. There are some 13,000 such 
contract claims agents. An unemployed person who wishes to file a claim 
for unemployment benefits need only consult his recent railroad employer 
to be directed to the unemployment claims agent with whom he may file 
his claim.
    (2) When an employee makes his first claim in any benefit year, he 
identifies himself and fills out an application for unemployment 
benefits (UI-1), an application for employment service (Form ES-1), and 
a pay rate report (Form UI 1a) to be used in determining the rate at 
which benefits may be paid. The employee is given an informational 
booklet UB-4 and an Unemployment Bulletin No. UB-3 informing him of his 
responsibilities and explaining the statements to which he is required 
to certify and to which he does certify when he registers for benefits. 
When the applications and pay rate report are completed, the 
unemployment claims agent sends them to the nearest field office of the 
Board. That office inspects the applications to detect errors and 
omissions and to note items requiring investigation. The office also 
attempts to verify the employee's statement about his pay rate unless 
the unemployment claims agent has already done so. The application for 
unemployment benefits and the pay rate report are then sent to the 
appropriate regional office of the Board. The application for employment 
service is retained in the field office for use in referring the 
claimant to suitable job openings. On the basis of the information 
furnished on the application for unemployment benefits, the regional 
office determines whether the applicant is a qualified employee (that 
is, whether he earned $500 or more from covered employment in the base 
year). The applicant is notified by letter if he is found to be not 
qualified.
    (3) In addition to the application forms and pay rate report, the 
claimant executes a registration and claim for unemployment insurance 
benefits (Form UI-3). In substance, registration consists of his 
appearing before an unemployment claims agent during the agent's working 
hours and signing his name on the registration and claim form for the 
days he wishes to claim as days of unemployment. Registration for any 
day must be made on the day or not later than the sixth calendar day 
thereafter, except that, if such calendar day is not a business day, the 
claimant may make his registration on the next following business day. 
In other words, a claimant must ordinarily appear for registration at 
seven-day intervals. Under certain circumstances, such as illness, 
employment, looking for employment, etc., an employee may make a delayed 
registration for any day for which he is unable to register within the 
time limit mentioned above. The unemployment claims agent sends the 
claim to the nearest field office where it is inspected with a view to 
calling the claimant in for interview or referral to job openings, 
detecting errors and

[[Page 98]]

omissions, and noting items requiring investigation. The claim is then 
forwarded to the regional office.
    (4) Claims for sickness benefits are handled by the field 
organization of the Board. An employee need not register in person for 
sickness benefits but claims for such benefits must be made on the forms 
prescribed by the Board and executed by the individual claiming benefits 
except that, if the Board is satisfied that an employee is so sick or 
injured that he cannot sign forms, the Board may accept forms executed 
by someone else in his behalf. Forms used in connection with claims for 
sickness benefits may be obtained from a railroad employer, a railway 
labor organization, or any Board office. An application for sickness 
benefits (Form SI-1a) and the required statement of sickness (Form SI-
1b) may be mailed to any office of the Board (see part 335 of this 
chapter). It is important that a statement of sickness be filed 
promptly, for no day can be considered as a day of sickness unless a 
statement of sickness with respect to such day is filed at an office of 
the Board within ten days. The application and statement of sickness are 
forwarded to a regional office where they are examined. If it appears 
that the employee is entitled to benefits, the regional office will send 
him a claim form covering a 14-day registration period, and a pay rate 
report (Form SI-1d). The employee completes the forms, indicating on the 
claim form the days during the period he claims as days of sickness and 
returns both forms to the regional office to which the claim form is 
preaddressed. When additional medical information is needed, a form for 
supplemental doctor's statement is sent to the employee. This should be 
filled out by a doctor and returned to the Board.
    (5) Maternity benefits must be applied for on a form prescribed by 
the Board. A statement of maternity sickness, executed by a person 
authorized to execute statements of sickness (see part 335 of this 
chapter), is required also. The necessary forms may be obtained from a 
railroad employer, a railway labor organization, or any Board office. An 
application for maternity benefits (Form SI-101) and the statement of 
maternity sickness (Form SI-104) may be filed in person or by mail with 
any Board office. It is important that the statement of maternity 
sickness be filed promptly since no day can be considered as a day of 
sickness in a maternity period unless a statement of maternity sickness 
with respect to the day is filed at an office of the Board within ten 
days. As in the case of claims for sickness benefits, the forms are 
forwarded to a regional office. Claim forms are mailed to the claimant 
and are pre-addressed for return to the regional office.
    (6) Whether benefits are payable to a claimant and, if so, the 
amount of benefits payable, is determined with respect to claims for 
unemployment, sickness, and maternity benefits, by the regional office. 
The names and addresses of claimants to whom benefits are found payable, 
and the amounts payable to them, are certified to the local disbursing 
office of the Treasury Department which mails the benefit checks to the 
claimants. If a claim is denied in whole or in part, an explanation is 
given to the claimant by letter.
    (7) The rate at which benefits are payable is determined from the 
claimant's railroad wages earned in a base year period or from his daily 
pay rate for his last railroad employment in the base year period, 
whichever will result in the higher benefit rate. His daily benefit rate 
will be at least 60 per centum of his daily pay rate for his last 
railroad employment in the base year period, but not exceeding $10.20.
    (8) Any qualified employee whose claim for benefits under the 
Railroad Unemployment Insurance Act has been denied in whole or in part 
may, within one year from the date such denial is communicated to him, 
appeal from the initial determination, and such appeal will be heard 
before an impartial hearings officer. An unsuccessful claimant in an 
appeal before such hearings officer may appeal to the Board. (For 
further details of appeals procedure by claimants for benefits and for 
appeals procedure by employers, see parts 319 and 320 of this chapter.)

Any claimant, or any railway labor organization organized in accordance 
with the provisions of the Railway Labor Act, of which the claimant is a

[[Page 99]]

member, or any other party aggrieved by a final decision pursuant to the 
Railroad Unemployment Insurance Act, may, only after all administrative 
remedies within the Board will have been availed of and exhausted, 
obtain a review of such final decision of the Board by filing a petition 
for review within 90 days after the mailing of notice of such decision 
to the claimant or other party, or within such further time as the Board 
may allow, in the United States court of appeals for the circuit in 
which the claimant or other party resides or will have had his principal 
place of business or principal executive office, or in the United States 
Court of Appeals for the Seventh Circuit, or in the United States Court 
of Appeals for the District of Columbia Circuit.
    (c) Current compensation and service records. Current compensation 
and service records are maintained by the Bureau of Research and 
Employment Accounts. These records are obtained from reports made 
periodically on either a quarterly or annual basis by employers and 
employee representatives. General instructions in this regard may be 
found in part 250 of this chapter. Special instructions to employers and 
employee representatives are issued from time to time by the Director of 
Research and Employment Accounts.
    (d) Collection of contributions. The Office of Budget and Fiscal 
Operations acts as the collecting agency of the Board in receiving 
contributions due under the Railroad Unemployment Insurance Act. 
Contributions are, with some few exceptions, due quarterly and with the 
payment, the employer must file a report, Form DC-1, Employers Quarterly 
or Annual Report of Contributions under the Railroad Unemployment 
Insurance Act. (For further details see part 345 of this chapter.)
    (e) Employment service. Employers needing workers may avail 
themselves of the Board's employment service by making requests of any 
field office for referrals, in writing, on forms provided by the Board, 
or by telephone.

[15 FR 6752, Oct. 6, 1950, as amended at 21 FR 4808, June 29, 1956; 
Board Order 62-115, 27 FR 9254, Sept. 19, 1962; Board Order 67-67, 32 FR 
9064, June 27, 1967; 41 FR 22557, June 4, 1976. Redesignated at 52 FR 
11010, Apr. 6, 1987, as amended at 55 FR 26430, June 28, 1990]



Sec. 200.3  Obtaining forms from the Railroad Retirement Board.

    Forms used by the Board, including applications for benefits and 
informational publications, may be obtained from the Board's 
headquarters at 844 Rush Street, Chicago, Illinois 60611, and from local 
Board offices.

[63 FR 17326, Apr. 9, 1998]



Sec. 200.4  Availability of information to public.

    (a) The following materials (more particularly described in 
paragraph (d) of this section), with identifying details deleted 
pursuant to paragraph (b) of this section, are available for public 
inspection and copying:
    (1) All final opinions (including concurring and dissenting 
opinions), and all orders made in the adjudication of cases, which have 
precedential effect;
    (2) All statements of policy and interpretations which have been 
adopted by the Board, or by anyone under authority delegated by the 
Board, which have not been published in the Federal Register; and
    (3) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (b) The identifying details to be deleted shall include, but not be 
limited to, names and identifying numbers of employees and other 
individuals as needed to comply with sections 12(d) and (n) of the 
Railroad Unemployment Insurance Act, section 7(b)(3) of the Railroad 
Retirement Act, and Sec. 200.8 of this part, or to prevent a clearly 
unwarranted invasion of personal privacy.
    (c) There shall be maintained in the Board's library a current index 
of the materials referred to in paragraph (a) of this section which will 
have been

[[Page 100]]

issued, adopted, or promulgated subsequent to July 4, 1967. This index 
shall be available for public inspection and copying at the Board's 
headquarters offices located at 844 Rush Street, Chicago, Illinois, 
during the normal business hours of the Board. Copies of the index or 
any portion thereof may be obtained for a fee equivalent to the costs of 
reproduction by submitting a written request therefor. Such request 
should comply with the form for requests as described in paragraph (h) 
of this section.
    (d) The materials and indexes thereto shall be kept, and made 
available to the public upon request, in the bureaus and offices of the 
Board which produce or utilize the materials. The following materials 
currently in use shall, as long as they are in effect as precedents and 
instructions, be made available in offices of the Board at 844 Rush 
Street, Chicago:
    (1) In the Bureau of Retirement Claims: The Retirement Claims 
Manual, RCM Circulars, Special Services Manual, Policy Decisions, 
Procedural Memoranda containing information on the adjudication of 
claims not contained in the Retirement Claims Manual or in RCM 
Circulars, Instructions and Circular Letters to Employers, Field 
Operating Manual (Parts I and VI), FOM Circulars and Memoranda, and the 
Occupational Disability Rating Schedule.
    (2) In the Bureau of Unemployment and Sickness Insurance: the 
Adjudication Instruction Manual, Regional Operating Manual (Part I), 
Field Operating Manual (Part II), FOM Circulars and Memoranda, Bureau of 
Unemployment and Sickness Insurance Circulars, Memorandum Opinions, 
memorandum instructions on adjudication, and circular letters of 
instruction to railroad officials.
    (3) In the Bureau of Research and Employment Accounts: the 
Instructions to Employers, and Circular Letters to Employers.
    (4) In the Bureau of Law: Legal Opinions.
    (5) In the Office of the Secretary of the Board: Decisions and 
rulings of the Board.

Regional offices and field offices shall also make available to the 
extent practicable such of these materials and indexes as are furnished 
them in the ordinary course of business.
    (e) The copies of manuals and instructions made available for public 
copying and inspection shall not include:
    (1) Confidential statements, standards, and instructions which do 
not affect the public, and
    (2) Instructions not affecting the public (such as those relating 
solely to processing and procedure, to management, or to personnel) 
which it is feasible to separate from instructions that do affect the 
public.
    (f) With the exception of records specifically excluded from 
disclosure by section 552(b) of title 5, United States Code, or other 
applicable statute, any records of or in the custody of this agency, 
other than those made available under paragraphs (a), (c), and (d) of 
this section, shall, upon receipt of a written request reasonably 
describing them, promptly be made available to the person requesting 
them.
    (g) The RRB may charge the person of persons making a request for 
records under paragraph (f) of this section a fee in an amount not to 
exceed the costs actually incurred in complying with the request and not 
to exceed the cost of processing a check for payment. Depending on the 
category into which the request falls, a fee may be assessed for the 
cost of search for documents, reviewing documents to determine whether 
any portion of any located documents is permitted to be withheld, and 
duplicating documents.
    (1) Fee schedule. To the extent that the following are chargeable, 
they are chargeable according to the following schedule:
    (i) The charge for making a manual search for records shall be the 
salary rate, including benefits, for a GS-7, step 5 Federal employee;
    (ii) The charge for reviewing documents to determine whether any 
portion of any located document is permitted to be withheld shall be the 
salary rate, including benefits, for a GS-13, step 5 Federal employee;
    (iii) The charge for making photocopies of any size document shall 
be $.10 per copy per page:

[[Page 101]]

    (iv) The charge for computer-generated listings or labels shall 
include the direct cost to the RRB of analysis and programming, where 
required, plus the cost of computer operations to produce the listing or 
labels. The maximum computer search charge shall be $2,250.00 per hour 
($37.50 per minute). Search time shall not include the time expended in 
analysis or programming where these operations are required.
    (v) There shall be no charge for transmitting documents by regular 
post. The charge for all other methods of transmitting documents shall 
be the actual cost of transmittal.
    (2) Categories of requesters. For the purpose of assessing fees, 
requesters shall be classified into one of the following five groups:
    (i) Commercial use requesters. Commercial use requesters are 
requesters who seek information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made. For such requesters, the RRB will 
fully charge for the cost of searching, reviewing and copying and shall 
not consider a request for waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest; however, the 
RRB will not charge a fee if the total cost for searching, reviewing, 
and copying is less than $10.00.
    (ii) Educational and non-commercial scientific institution 
requesters. Educational requesters are educational institutions which 
operate a program or programs of scholarly research. They may be a 
preschool, a public or private elementary or secondary school, an 
institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, or an institution of vocational education. Non-commercial 
scientific requesters are institutions that are not operated on a 
``commercial'' basis and which are operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. To be eligible for inclusion 
in this category, requesters must show that the request is being made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. For requesters in this category, the RRB shall 
charge for the cost of reproduction alone, excluding the first 100 
pages, for which no charge will be made. If after excluding the cost of 
the first 100 pages of reproduction, there remain costs to be assessed, 
the RRB will not charge for such costs is such costs total less than 
$10.00. If the cost is $10.00 or more, the RRB may waive the charge or 
reduce it if it determines that disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. To be 
eligible for free search time, these requesters must reasonably describe 
the records sought.
    (iii) Requesters who are representatives of the news media. The term 
``representative of the news media'' refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that could be of interest to the public. 
In the case of ``freelance'' journalists, they may be regarded as 
working for a news organization if they can demonstrate a solid basis 
for expecting publication through that organization, even though not 
actually employed by it. For requesters in this category the RRB shall 
charge for the cost of reproduction alone excluding the cost of the 
first 100 pages, for which no charge will be made. If, after excluding 
the cost of the first 100 pages of reproduction, there remain costs to 
be assessed, the RRB will not charge for such costs if such costs total 
less than $10.00. If the cost is $10.00 or more, the RRB may waive the 
charge or reduce it if it determines that disclosure is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester. To be 
eligible for free search

[[Page 102]]

time, these requesters must reasonably describe the record sought.
    (iv) Requests by subjects of records in Privacy Act Systems of 
Records. Requests from subject individuals for records about themselves 
filed in any of the Board's Privacy Act Systems of records will continue 
to be treated under the fee provisions of the Privacy Act of 1984 which 
permit assessing fees only for reproduction.
    (v) All other requesters. For requesters who do not fall within the 
purview of paragraph (g)(2)(i), (ii), (iii), or (iv) of this section, 
the RRB will charge the full direct cost of searching for and 
reproducing records that are responsive to the request. The RRB will not 
charge for such costs to be assessed if the total is less than $10.00. 
If the total is $10.00 or more, the RRB may waive the charge or reduce 
it if it determines that disclosure of the information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester.
    (3) Charges for unsuccessful searches. Where search time is 
chargeable, the RRB may assess charges for time spent searching, even if 
the RRB fails to locate the records, or if located, the records are 
determined to be exempt from disclosure. If the Board estimates that 
search charges are likely to exceed $25.00 it will notify the requester 
of the estimated amount of fees, unless the requester has agreed in 
advance to pay fees as high as those anticipated. Such notice will offer 
the requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or here needs at a lower 
cost.
    (4) Aggregating requests. When the RRB reasonably believes that a 
requester or group of requesters acting in concert is attempting to 
break a request into a series of requests for the purpose of evading the 
assessment of fees, the RRB will aggregate any such requests and charge 
accordingly. One element the RRB will consider in determining whether a 
belief would be reasonable is the time period in which the requests have 
been.
    (5) Advance payments. (i) The RRB estimates or determines that the 
allowable charges payment unless:
    (A) The RRV estimates or determines that the allowable charges that 
a requester may be required to pay are likely to exceed $250.00, in 
which case the RRV will notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payment of FOIA fees, or require an advance payment of 
an amount up to the full estimated charges in the case of requesters 
with no history of payment; or
    (B) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), in 
which case the RRB may require the requester to pay the full amount owed 
plus any applicable interest as provided below of demonstrate that he 
has, in fact, paid the fee, and to make an advance payment of the full 
amount of the estimated fee before the agency begins to process a new 
request or a pending request from that requester.
    (ii) When the Board acts under paragraph (g)(5)(i) of this section, 
the administrative time limits prescribed in subsection (a)(6) of the 
Freedom of Information Act (5 U.S.C. 552(a)(6)) (i.e., 10 working days 
from receipt of initial requests and 20 working days from receipt of 
appeals from initial denials, plus permissible extensions of these time 
limits) will begin only after the Board has received the fee payments 
described in said paragraph (g)(5)(i) of this section.
    (6) Charging interest. Interest may be charged to any requester who 
fails to pay fees charged within 30 days fo the date of billing. 
Interest will be assessed beginning on the 31st day following the day on 
which the bill for fees was sent. Interest will be the rate prescribed 
in section 3717 of title 31 of the U.S. Code Annotated and will accrue 
from the date of the billing.
    (7) Collection of fees due. Whenever it is appropriate in the 
judgment of the Board in order to encourage repayment of fees billed in 
accordance with these

[[Page 103]]

regulations, the Board will use the procedures authorized by the Debt 
Collection Act of 1982 (Pub. L. 97-365), including disclosure to 
consumer reporting agencies and use of collection agencies.
    (h) Any person or organization requesting records pursuant to this 
section shall submit such request in writing to the Executive Director, 
Railroad Retirement Board, Room 536, 844 Rush Street, Chicago, Illinois 
60611. All such requests should be clearly and prominently identified as 
requests for information under the Freedom of Information Act. If 
submitted by mail or otherwise submitted in an envelope or other cover, 
requests should be clearly and prominently identified as such on the 
envelope or cover.
    (i) The Executive Director, or any other individual specifically 
authorized to act on behalf of the Executive Director, shall have the 
authority to grant or deny a request for information submitted under 
this section. The Executive Director or such authorized representative 
shall, within 10 working days following the receipt of a request, except 
as provided in paragraph (j)(1) of this section, make a determination 
granting or denying the request and notify the requester of his or her 
decision and if a denial, the reasons therefor. The requester shall be 
further advised that a total or partial denial may be appealed to the 
Board as provided in paragraph (j) of this section.
    (j) In cases where a request for information is denied, in whole or 
in part, by the Executive Director or his or her authorized 
representative, the party who originally made the request may appeal 
such determination to the Board by filing a written appeal with the 
Secretary of the Board within 20 working days following receipt of the 
notice of denial. The Board shall render a decision on an appeal within 
20 working days following receipt of the appeal except as provided in 
paragraph (j)(1) of this section. The requester shall promptly be 
notified of the Board's decision and, in cases where the denial is 
upheld, of the provisions for judicial review of such final 
administrative decisions.
    (1) In unusual circumstances, as enumerated in section 552(a)(6)(B) 
of title 5, United States Code, the time restrictions of paragraphs (i) 
and (j) of this section may be extended in the aggregate by no more than 
10 days by notice to the requester of such extension, the reasons 
therefor, and the date on which a determination is expected to be 
dispatched.
    (2) For purposes of paragraphs (i) and (j) of this section, a 
request shall be received by the Executive Director of the Board when it 
arrives at the Board's headquarters. Provided, however, That when the 
estimated fee to be assessed for a given request exceeds $30.00, such 
request shall be deemed not to have been received by the Executive 
Director until the requester is advised of the estimated cost and agrees 
to bear it. Provided further, That a request which does not fully comply 
with all the provisions of paragraph (h) of this section shall be deemed 
to have been received by the Executive Director on the day it actually 
reaches his or her office.
    (k) Any person in the employ of the Railroad Retirement Board who 
receives a request for any information, document or record of this 
agency, or in the custody thereof, shall advise the requester to address 
such request to the Executive Director. If the request received is in 
writing, it shall be immediately referred for action to the Executive 
Director.
    (l) The Executive Director shall maintain records of:
    (1) The total amount of fees collected by this agency pursuant to 
this section;
    (2) The number of initial denials of requests for records made 
pursuant to this section and the reason for each;
    (3) The number of appeals from such denials and the result of each 
appeal, together with the reason(s) for the action upon each appeal that 
results in a denial of information;
    (4) The name(s) and title(s) or position(s) of each person 
responsible for each initial denial of records requested and the number 
of instances of action on a request for information for each such 
person;
    (5) The results of each proceeding conducted pursuant to section 
552(a)(4)(F) of title 5 U.S. Code, including a report of any 
disciplinary action against an official or employee who

[[Page 104]]

was determined to be primarily responsible for improperly withholding 
records, or an explanation of why disciplinary action was not taken;
    (6) Every rule made by this agency affecting or in implementation of 
section 552 of title 5 U.S. Code;
    (7) The fee schedule for copies of records and documents requested 
pursuant to this regulation; and
    (8) All other information which indicates efforts to administer 
fully the letter and spirit of section 552 of title 5 U.S. Code.
    (m) The Board shall, prior to March 1 of each year, prepare and 
submit a report to the Speaker of the House of Representatives and the 
President of the Senate covering each of the categories of records 
maintained in accordance with the foregoing for the preceding calendar 
year.
    (n) Special procedures for handling requests for business 
information:
    (1) The Freedom of Information Act exempts from mandatory disclosure 
matters that are ``trade secrets and commercial or financial information 
obtained from a person and privileged or confidential * * *.'' The Board 
maintains records that may include information within this exception and 
to protect the rights of submitters of business information with respect 
to the confidentiality of such information, all requests for records or 
information contained in contract bids, contract proposals, contracts, 
and similar business information documents shall be handled in 
accordance with the procedures established by this paragraph.
    (2) When the Executive Director or an individual authorized to grant 
or deny requests under the Freedom of Information Act receives a request 
for business information, the Executive Director or other individual 
shall promptly provide the person who submitted the information to the 
Board with written notice that a request for the information has been 
made. The notice shall specify what record or information has been 
requested and shall inform the business submitter that the submitter 
may, within ten working days after the date of the notice, file a 
written objection to disclosure of the information or portions of the 
information. The written objection to disclosure shall be addressed to 
the individual whose name appears in the notification and shall specify 
the portion or portions of the information that the submitter believes 
should not be disclosed and state the grounds or bases for objecting to 
disclosure of such portion or portions. No written notice to the 
business submitter shall be required under this subparagraph if it is 
readily determined that the information will not be disclosed or that 
the information has lawfully been published or otherwise made available 
to the public.
    (3) In determining whether to grant or deny the request for the 
business information, the official or entity making the determination 
shall carefully consider any objection to disclosure made by the 
submitter of the information in question.
    (4) If a determination is made to disclose information with respect 
to which the business submitter has filed an objection to disclosure, 
the official or entity making the determination shall, no later than ten 
working days prior to the date on which disclosure of the information 
will be made, provide the submitter with written notice of the 
determination to disclose. The written notice shall state the reasons 
why the submitter's grounds for objecting to disclosure were rejected 
and inform the submitter of the date on which the information is to be 
disclosed.
    (5) The Board shall promptly notify the business submitter of any 
suit commenced under the Freedom of Information Act to compel disclosure 
of information which he or she submitted to the Board.
    (o) Custom tailored information services; Fees charged. This 
paragraph and paragraph (p) of this section set forth the policy of the 
Railroad Retirement Board with respect to the assessment of a fee for 
providing custom tailored information where requested. Except as 
provided in paragraphs (o)(4)(vii) and (p) of this section, a fee shall 
be charged for providing custom tailored information.
    (1) Definition: Custom tailored information. Custom tailored 
information is information not otherwise required to be disclosed under 
this part but which can

[[Page 105]]

be created or extracted and manipulated, reformatted, or otherwise 
prepared to the specifications of the requester from existing records. 
For example, the Board needs to program computers to provide data in a 
particular format or to compile selected items from records, provide 
statistical data, ratios, proportions, percentages, etc. If this data is 
not already compiled and available, the end product would be the result 
of custom tailored information services.
    (2) Providing custom tailored information. The Board is not required 
to provide custom tailored information. It will do so only when the 
appropriate fees have been paid as provided in paragraph (o)(4) of this 
section and when the request for such information will not divert staff 
and equipment from the Board's primary responsibilities.
    (3) Requesting custom tailored information. Information may be 
requested in person, by telephone, or by mail. Any request should 
reasonably describe the information wanted and may be sent to the 
Director of Administration, Railroad Retirement Board, 844 North Rush 
Street, Chicago, Illinois 60611-2092.
    (4) Fee schedule. Requests for custom tailored information are 
chargeable according to the following schedule:
    (i) Manual searching for records. Full cost of the time of the 
employees who perform the service, even if records cannot be found, 
management and supervisory costs, plus the full costs of any machine 
time and materials the employee uses. Consulting and other indirect 
costs will be assessed as appropriate.
    (ii) Photocopying or reproducing records on magnetic tapes or 
computer diskettes. The charge for making photocopies of any size 
document shall be $.10 per copy per page. The charge for reproducing 
records on magnetic tapes or computer diskettes is the full cost of the 
operator's time plus the full cost of the machine time and the materials 
used.
    (iii) Use of electronic data processing equipment to obtain records. 
Full cost for the service, including computer search time and computer 
runs and printouts, and the time of computer programmers and operators 
and of other employees.
    (iv) Certification or authentication. Full cost of certification and 
authentication.
    (v) Providing other special services. Full cost of the time of the 
employee who performs the service, management and supervisory costs, 
plus the full costs of any machine time and materials the employee uses. 
Consulting and other indirect costs will be assessed as appropriate.
    (vi) Special forwarding arrangements. Full cost of special 
arrangements for forwarding material requested.
    (vii) Statutory supersession. Where a Federal statute prohibits the 
assessment of a charge for a service or addresses an aspect of that 
charge, the statute shall take precedence over this paragraph (o).
    (p) Assessment of a fee with respect to the provision of custom 
tailored information where the identification of the beneficiary is 
obscure and where provision of the information can be seen as benefiting 
the public generally. When the identification of a specific beneficiary 
with respect to the provision of custom tailored information is obscure, 
the service can be considered primarily as benefiting broadly the 
general public, and the estimated cost of providing the information is 
less than $1,000.00, the Director of Administration shall determine 
whether or not a fee is to be charged. In any such case where the cost 
is $1,000.00 or more, the request shall be referred by the Director of 
Administration to the three-member Board for a determination whether or 
not a fee is to be assessed.

(The information collection requirements for paragraph (n) were approved 
by the Office of Management and Budget under control number 3220-0150)

[Board Order 6784, 32 FR 9651, Sept. 4, 1967, as amended at 40 FR 7255, 
Feb. 19, 1975; 48 FR 51447, 51448, Nov. 9, 1983; 50 FR 26357, June 26, 
1985. Redesignated at 52 FR 11010, Apr. 6, 1987, as amended at 52 FR 
13820, Apr. 24, 1987; 54 FR 43055, Oct. 20, 1989; 59 FR 28765, June 3, 
1994; 60 FR 29984, June 7, 1995; 61 FR 25390, May 21, 1996]



Sec. 200.5  Protection of privacy of records maintained on individuals.

    (a) Purpose and scope. The purpose of this section is to establish 
specific procedures necessary for compliance with the Privacy Act of 
1974 (Pub. L. 93-579).

[[Page 106]]

These regulations apply to all record systems containing information of 
a personal or private nature maintained by the Railroad Retirement Board 
that are indexed and retrieved by personal identifier.
    (b) Definitions--(1) Individual. The term ``individual'' pertains to 
a natural person who is a citizen of the United States or an alien 
lawfully admitted for permanent residence and not to a company or 
corporation.
    (2) System of records. For the purposes of this section, the term 
``system of records'' pertains to only those records that can be 
retrieved by an individual identifier.
    (3) Railroad Retirement Board. For purposes of this section, the 
term ``Railroad Retirement Board'' refers to the United States Railroad 
Retirement Board, an independent agency in the executive branch of the 
United States Government.
    (4) Board. For purposes of this section the term ``Board'' refers to 
the three member governing body of the United States Railroad Retirement 
Board.
    (c) Procedure for requesting the existence of personally 
identifiable records in a record system. An individual can determine if 
a particular record system maintained by the Railroad Retirement Board 
contains any record pertaining to him by submitting a written request 
for such information to the system manager of that record system as 
described in the annual notice published in the Federal Register. A 
current copy of the system notices, published in accordance with 
paragraph (i) of this section, is available for inspection at all 
regional and district offices of the Board. If necessary, Board 
personnel will aid requesters in determining what system(s) of records 
they wish to review and will forward any requests for information to the 
appropriate system manager. Also, requests for personal information may 
be submitted either by mail or in person to the system manager at the 
headquarters of the Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611. Prior to responding to a request for information under 
this subsection, the system manager shall require the individual 
requesting such information to provide identifying data, such as his 
full name, date of birth, and social security number. The system manager 
shall respond to a request under this subsection within a reasonable 
time by stating that a record on the individual either is or is not 
contained in the system.
    (d) Disclosure of requested information to individuals. (1) Upon 
request, an individual shall be granted access to records pertaining to 
himself, other than medical records and records compiled in anticipation 
of a civil or criminal action or proceeding against him, which are 
indexed by individual identifier in a particular system of records. 
Requests for access must be in writing and should be addressed to the 
system manager of that record system as described in the annual notice 
published in the Federal Register. Requests under this subsection may be 
submitted either by mail or in person at the headquarters offices of the 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611.
    (2) The system manager shall, within ten working days following the 
date on which the request is received in his office, render a decision 
either granting or denying access and shall promptly notify the 
individual of his decision. If the request is denied, the notification 
shall inform the individual of his right to appeal the denial to the 
Board. An individual whose request for access under this subsection has 
been denied by the system manager may appeal that determination to the 
Board by filing a written appeal with the Secretary of the Board, 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611 
within twenty working days following receipt of the notice of denial. 
The Board shall render a decision on an appeal within thirty working 
days following the date on which the appeal is received in the office of 
the Secretary of the Board. The individual shall promptly be notified of 
the Board's decision.
    (3) In cases where an individual has been granted access to his 
records, the system manager shall, prior to releasing such records, 
require the individual to produce identifying data such as his name, 
date of birth, and social security number.

[[Page 107]]

    (4) Disclosure to an individual of his record may be made by 
providing him, upon written request therefor, a copy of the record or 
portion thereof which he reasonably describes in his request.
    (5) An individual, and if such individual so desires, one other 
person of his choosing, may review and have a copy made of his record 
(in a form comprehensible to him) during regular business hours at the 
location described as the repository of the record system containing 
such records in the annual notice published in the Federal Register or 
at such other location convenient to the individual as specified by the 
system manager. If an individual is accompanied by another person, the 
system manager may require written authorizations for disclosure in the 
presence of the other person from the individual before any record or 
portion thereof is released.
    (e) Special procedures--medical records. (1) An individual 
concerning whom the Railroad Retirement Board maintains medical records 
in a system of records shall, upon written request, be permitted to 
review such medical records or be furnished copies of such records if 
the system manager of the system containing the requested records 
determines that disclosure of the records or any portion thereof would 
not be harmful to the individual's mental or physical health.
    (2) If, upon review of the medical records requested, the system 
manager determines that disclosure of such records or any portion 
thereof might be harmful to the individual's mental or physical health, 
he shall inform the individual that copies of the records may be 
furnished to a physician of the individual's own choosing. If the 
individual should select a physician to conduct such a review and direct 
the Board to permit the physician to review the records, the system 
manger shall promptly forward copies of the records in question to that 
physician. The system manger shall inform the physician that the records 
are being provided to him or her for the purpose of making an 
independent determination as to whether release or the records directly 
to the individual who has requested them might be harmful to that 
individual. The physician shall be informed that if, in his or her 
opinion, direct disclosure of the records would not be harmful to the 
individual's mental or physical health, he or she may then provide the 
copies to the individual. The physician shall further be informed that 
should he or she determine that disclosure of the records in question 
might be harmful to the individual, such records shall not be disclosed 
and should be returned to the Board, but the physician may summarize and 
discuss the contents of the records with the individual.
    (3) The special procedure established by paragraph (e) of this 
section to permit an individual access to medical records pertaining to 
himself or herself shall not be construed as authorizing the individual 
to direct the Board to disclose such medical records to any third 
parties, other than to a physician in accordance with paragraph (e)(2) 
of this section. Medical records shall not be disclosed by the Board to 
any entities or persons other than the individual to whom the record 
pertains or his or her authorized physician regardless of consent, 
except as permissible under paragraphs (j)(1)(i), (iii), and (viii) of 
this section and as provided under paragraph (e)(4) of this section.
    (4) Notwithstanding the provisions of paragraphs (e)(1), (2) and (3) 
of this section and of paragraph (d) of this section, if a determination 
made with respect to an individual's claim for benefits under the 
Railroad Retirement Act of the Railroad Unemployment Insurance Act is 
based in whole or in part on medical records, disclosure of or access to 
such medical records shall be granted to such individual or to such 
individual's representative when such records are requested for the 
purpose of contesting such determination either administratively of 
judicially.
    (5) The procedures for access to medical records set forth in 
paragraph (e) of this section shall not apply with respect to requests 
for access to an individual's disability decision sheet or similar 
adjudicatory documents, access to which is governed solely by paragraph 
(d) of this section.
    (f) General exemptions--(1) Systems of records subject to 
investigatory material exemption under 5 U.S.C. 552a(j)(2). RRB-

[[Page 108]]

43, Investigation Files, a system containing information concerning 
alleged violations of law, regulation, or rule pertinent to the 
administration of programs by the RRB or alleging misconduct or conflict 
of interest on the part of RRB employees in the discharge of their 
official duties.
    (2) Scope of exemption. (i) The system of records identified in this 
paragraph is maintained by the Office of Investigations (OI) of the 
Office of Inspector General (OIG), a component of the Board which 
performs as its principal function activities pertaining to the 
enforcement of criminal laws. Authority for the criminal law enforcement 
activities of the OIG's OI is the Inspector General Act of 1978, 5 
U.S.C. App.
    (ii) Applicable information in the system of records described in 
this paragraph is exempt from subsections (c)(3) and (4) (Accounting of 
Certain Disclosures), (d) (Access to Records), (e)(1), (2), (3), (4)(G), 
(H), and (I), (5), and (8), (Agency Requirements), (f) (Agency Rules) 
and (g) (Civil Remedies) of 5 U.S.C. 552a.
    (iii) To the extent that information in this system of records does 
not fall within the scope of this general exemption under 5 U.S.C. 
552(j)(2) for any reason, the specific exemption under 5 U.S.C. 
552(k)(2) is claimed for such information. (See paragraph (g) of this 
section.)
    (3) Reasons for exemptions. The system of records described in this 
section is exempt for one or more of the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make available to the 
individual named in the records, at his or her request, an accounting of 
each disclosure of records. This accounting must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Accounting of each disclosure would alert the subjects of 
an investigation to the existence of the investigation and the fact that 
they are subjects of an investigation. The release of such information 
to the subjects of an investigation would provide them with significant 
information concerning the nature of the investigation, and could 
seriously impede or compromise the investigation and lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (ii) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with subsection (d) of the Act. Since the RRB is 
claiming that this system of records is exempt from subsection (d) of 
the Act, concerning access to records, this section is inapplicable and 
is exempted to the extent that this system of records is exempted from 
subsection (d) of the Act.
    (iii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him or her, to request amendment of 
such records, to request a review of an agency decision not to amend 
such records, and to contest the information contained in such records. 
Granting access to records in this system of records could inform the 
subject of the investigation of an actual or potential criminal 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his or her 
activities, of the identity of confidential sources, witnesses, and law 
enforcement personnel, and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony, and disclose investigative techniques 
and procedures.
    (iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose required by statute or executive order 
of the President. The application of this provision could impair 
investigations and law enforcement, because it is not always possible to 
detect the relevance or necessity of specific information in the early 
stages of an investigation. Relevance and necessity are often questions 
of judgment and timing, and it is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.

[[Page 109]]

    (v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation of the existence 
of the investigation, enabling the subject to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony. Moreover, in certain circumstances the subject 
of an investigation cannot be required to provide information to 
investigators, and information must be collected from other sources. 
Furthermore, it is often necessary to collect information from sources 
other than the subject of the investigation to verify the accuracy of 
the evidence collected.
    (vi) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purposes 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation.
    (vii) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him or her, how he or she can gain access to such a 
record, and how he or she can contest its contents. Since the RRB is 
claiming that the system of records is exempt from subsection (f) of the 
Act, concerning agency rules, and subsection (d) of the Act, concerning 
access to records, these requirements are inapplicable and are exempted 
to the extent that these systems of records are exempted from 
subsections (f) and (d) of the Act. Although the RRB is claiming 
exemption from these requirements, RRB has published such a notice 
concerning its notification, access, and contest procedures because, 
under certain circumstances, RRB might decide it is appropriate for an 
individual to have access to all or a portion of his or her records in 
this system of records.
    (viii) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish in the 
Federal Register notice concerning the categories of sources or records 
in the system of records. Exemption from this provision is necessary to 
protect the confidentiality of the sources of information, to protect 
the privacy of confidential sources and witnesses, and to avoid the 
disclosure of investigative techniques and procedures. Although RRB is 
claiming exemption from this requirement, RRB has published such a 
notice in broad generic terms in the belief that this is all subsection 
(e)(4)(I) of the Act requires.
    (ix) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Since the Act defines ``maintain'' 
to include the collection of information, complying with this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In 
collecting information for criminal law enforcement purposes, it is not 
possible to determine in advance what information is accurate, relevant, 
timely, and complete. Facts are first gathered and then placed into a 
logical order to prove or disprove objectively the criminal behavior of 
an individual. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
the investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, 
thereby impending effective law enforcement.
    (x) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made

[[Page 110]]

available to any person under compulsory legal process when such process 
becomes a matter of public record. Complying with this provision could 
prematurely reveal an ongoing criminal investigation to the subject of 
the investigation.
    (xi) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his or her request if any system of records named by the 
individual contains a record pertaining to him or her. The application 
of this provision could impede or compromise an investigation or 
prosecution if the subject of an investigation was able to use such 
rules to learn of the existence of an investigation before it could be 
completed. In addition, mere notice of the fact of an investigation 
could inform the subject or others that their activities are under or 
may become the subject of an investigation and could enable the subjects 
to avoid detection or apprehension, to influence witnesses improperly, 
to destroy evidence, or to fabricate testimony. Since the RRB is 
claiming that these systems of records are exempt from subsection (d) of 
the Act, concerning access to records, the requirements of subsections 
(f)(2) through (5) of the Act, concerning agency rules for obtaining 
access to such records, are inapplicable and are exempted to the extent 
that this system of records is exempted from subsection (d) of the Act. 
Although RRB is claiming exemption from the requirements of subsection 
(f) of the Act, RRB has promulgated rules which establish Agency 
procedures because, under certain circumstances, it might be appropriate 
for an individual to have access to all or a portion of his or her 
records in this system of records. These procedures are described 
elsewhere in this part.
    (xii) 5 U.S.C. 552a(g) provides for civil remedies if an agency 
fails to comply with the requirements concerning access to records under 
subsections (d)(1) and (3) of the Act; maintenance of records under 
subsection (e)(5) of the Act; and any rule promulgated thereunder, in 
such a way as to have an adverse effect on an individual. Since the RRB 
is claiming that this system of records is exempt from subsections 
(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G), (H), and (I), (5), and 
(8), and (f) of the Act, the provisions of subsection (g) of the Act are 
inapplicable and are exempted to the extent that this system or records 
is exempted from those subsections of the Act.
    (g) Specific exemptions--(1) Systems of records subject to 
investigatory material exemption under 5 U.S.C. 552a(k)(2). RRB-43, 
Investigation Files, a system containing information concerning alleged 
violations of law, regulation, or rule pertinent to the administration 
of programs by the RRB or alleging misconduct or conflict of interest on 
the part of RRB employees in the discharge of their official duties.
    (2) Privacy Act provisions from which exempt. The system of records 
described in this paragraph is exempt from subsections (c)(3) 
(Accounting of Certain Disclosures), (d) (Access to Records), (e)(1), 
4G, H, and I (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 
552a.
    (3) Reasons for exemptions. The system of records described in this 
section is exempt for one or more of the following reasons:
    (i) To prevent the subject of the investigations from frustrating 
the investigatory process.
    (ii) To protect investigatory material compiled for law enforcement 
purposes.
    (iii) To fulfill commitments made to protect the confidentiality of 
sources and to maintain access to necessary sources of information.
    (iv) To prevent interference with law enforcement proceedings.
    (h) Request for amendment of a record. (1) An individual may request 
that a record pertaining to himself be amended by submitting a written 
request for such amendment to the system manager as described in the 
annual notice published in the Federal Register. Requests under this 
subsection may be made either by mail or in person at the headquarters 
offices of the Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611. Such a request should include a statement of the 
information in the record which the individual believes is incorrect, a 
statement of any information not in the record which the individual 
believes

[[Page 111]]

would correct the record, if included, and a statement of any evidence 
which substantiates the individual's belief concerning the inaccuracy of 
the information presently contained in the record.
    (2) Prior to rendering a determination in response to a request 
under this subsection, the system manager shall require that the 
individual provide identifying data such as his name, date of birth, and 
social security number.
    (3) The system manager responsible for the system of records which 
contains the challenged record shall acknowledge receipt of the request 
in writing within ten working days following the date on which the 
request for amendment was received in his office and shall promptly 
render a decision either granting or denying the request.
    (i) If the system manager grants the individual's request to amend 
his record, the system manager shall amend the record accordingly, 
advise the individual in writing that the requested amendment has been 
made and where an accounting of disclosures has been made, advise all 
previous recipients of the record to whom disclosure of such record was 
made and accounted for of the fact that the amendment was made and the 
substance of the amendment.
    (ii) If the system manager denies the individual's request to amend 
his record, the system manager shall inform the individual that the 
request has been denied in whole or in part, the reason for the denial 
and the procedure regarding the individual's right to appeal the denial 
to the Board.
    (i) Appeal of initial adverse determination on amendment. (1) An 
individual, whose request for amendment of a record pertaining to him is 
denied, may appeal that determination to the Board by filing a written 
appeal with the Secretary of the Board, Railroad Retirement Board, 844 
Rush Street, Chicago, Illinois 60611. The written notice of appeal 
should include a statement of the information in the record which the 
individual believes is correct, a statement of any information not in 
the record which the individual believes would correct the record, if 
included, and a statement of any evidence which substantiates the 
individual's belief concerning the inaccuracy of the information 
presently contained in the record.
    (2) The Board shall consider the appeal and render a final decision 
thereon within thirty working days following the date on which the 
appeal is received in the office of the Secretary of the Board. An 
extension of the thirty day response period is permitted for a good 
cause upon notification of such to the requester.
    (3) If, upon consideration of the appeal, the Board upholds the 
denial, the appellant shall be so informed in writing. The appellant 
shall be advised that he may file a concise statement with the Board 
setting forth his reasons for disagreeing with the Board's decision and 
the procedures to be followed in filing such a statement of 
disagreement. The individual shall also be informed of his right to 
judicial review as provided under section 552a(g)(1)(A) of title 5 of 
the United States Code. If disclosure has or will be made of a record 
containing information about which an individual has filed a statement 
of disagreement, that contested information will be annotated and a copy 
of the statement of disagreement will be provided to past and future 
recipients of the information along with which the Board may include a 
statement of its reasons for not amending the record in question.
    (4) If, upon consideration of the appeal, the Board reverses the 
denial, the Board shall amend the record, advise the appellant in 
writing that such amendment has been made, and where an accounting of 
disclosures has been made, advise all previous recipients of the record 
to whom disclosure of such was made and accounted for, of the fact that 
the amendment was made and the substance of the amendment.
    (j) Disclosure of record to person other than the individual to whom 
it pertains. (1) Records collected and maintained by the Railroad 
Retirement Board in the administration of the Railroad Retirement Act 
and the Railroad Unemployment Insurance Act which contain information of 
a personal or private nature shall not be disclosed to any person or to 
another agency without

[[Page 112]]

the express written consent of the individual to whom the record 
pertains. Such written consent shall not be required if the disclosure 
is not otherwise prohibited by law or regulation and is:
    (i) To officers or employees of the Railroad Retirement Board who, 
in the performance of their official duties, have a need for the record;
    (ii) Required under section 552 of title 5 of the U.S. Code;
    (iii) For a routine use of such record as published in the annual 
notice in the Federal Register;
    (iv) To the Bureau of the Census for uses pursuant to the provisions 
of title 13 of the United States Code;
    (v) To a recipient who has provided the Board with advance written 
assurance that the record will be used solely as a statistical or 
research record, and the record is to be transferred in a form that is 
not individually identifiable;
    (vi) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government or for evaluation by the 
administrator of General Services or his designee to determine whether 
the record has such value;
    (vii) To another agency or to an instrumentality of any governmental 
jurisidiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the agency which maintains the record specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (viii) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon such 
disclosure, notification is transmitted to the last known address of 
such individual;
    (ix) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (x) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (xi) Pursuant to the order of a court of competent jurisdiction.
    (2) The Railroad Retirement Board shall maintain an accounting of 
all disclosures of records made under paragraph (h)(1) of this section, 
except those made under paragraphs (h)(1)(i) and (ii) of this section. 
This accounting will include:
    (i) Date of disclosure;
    (ii) Specific subject matter of disclosure;
    (iii) Purpose of disclosure; and
    (iv) Name and address of the person or agency to whom the 
information has been released.

The Railroad Retirement Board shall maintain the accounting for five 
years or the life of the system of records, whichever is longer, and 
make such accounting, with the exception of disclosures made under 
paragraph (h)(1)(vii) of this section, available to the individual to 
whom the record pertains upon his request. If, subsequent to disclosure 
of a record for which disclosure an accounting has been made pursuant to 
this subsection, an amendment is made to that record or an individual 
has filed a statement of disagreement concerning that record, the person 
or agency to whom such disclosure was made shall be notified of the 
amendment or statement of disagreement.
    (k) Annual notice of systems of records. The Railroad Retirement 
Board shall publish in the Federal Register on an annual basis a listing 
of the various systems of records which it maintains by individual 
identifier. That notice shall provide the following for each system:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The routine uses of the system;
    (4) The methods of storage, disposal, retention, access controls and 
retrievability of the system;
    (5) The title and business address of the individual who is 
responsible for the system;
    (6) The procedure whereby an individual can be notified at his 
request

[[Page 113]]

whether or not the system contains a record pertaining to him;
    (7) The procedure whereby the individual can be notified at his 
request how he can gain access to any record pertaining to him which is 
contained in the system;
    (8) How the individual can contest the contents of such a record; 
and
    (9) The categories of sources of records in the system.
    (l) Collection of information and maintenance of records. With 
respect to each system of records indexed by individual identifer which 
is maintained by the Railroad Retirement Board, the Railroad Retirement 
Board shall:
    (1) Maintain in each system only such information about an 
individual as is relevant and necessary in accomplishing the purposes 
for which the system is kept;
    (2) To the greatest extent practicable, collect information directly 
from the individual when that information may result in an adverse 
determination about such individual's rights, benefits or privileges 
under programs administered by the Railroad Retirement Board;
    (3) Inform each individual who is asked to supply information:
    (i) The authority under which the solicitation of such information 
is carried out;
    (ii) Whether disclosure of the requested information is mandatory or 
voluntary and any penalties for failure to furnish such information;
    (iii) The principal purposes for which the information will be used;
    (iv) The routine uses and transfers of such information; and
    (v) The possible effects on such individual if he fails to provide 
the requested information.
    (4) Maintain all records which are used by the Railroad Retirement 
Board in making any determination about any individual with such 
accuracy, relevance, timeliness and completeness as is reasonably 
necessary to assure fairness to the individual in the determination;
    (5) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to paragraph (h)(1)(ii) of this section, make reasonable efforts to 
assure that such records are accurate, complete, timely and relevant for 
purposes of the administration of the Railroad Retirement Act and the 
Railroad Unemployment Insurance Act;
    (6) Maintain no record describing how any individual exercises 
rights guaranteed by the First Amendment unless expressly authorized by 
statute or by the individual to whom the record pertains or unless 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (7) Make reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record; and
    (8) At least thirty days prior to publication of information under 
paragraph (i) of this section, publish in the Federal Register notice of 
any new use or intended use of the information in the system and provide 
an opportunity for interested persons to submit written data, views or 
arguments to the Railroad Retirement Board.
    (m) Fees. The Railroad Retirement Board may assess a fee for copies 
of any records furnished to an individual under paragraph (d) of this 
section. The fees for copies shall be $.10 per copy per page, not to 
exceed the actual cost of reproduction, and should be paid to the 
Director of Budget and Fiscal Operations for deposit to the Railroad 
Retirement Account. If payment is made by check, the check should be 
payable to the order of the Railroad Retirement Board. Any fee of less 
than $10 may be waived by the system manager if he determines that it is 
in the public interest to do so.
    (n) Government contractors. When the Railroad Retirement Board 
provides by a contract or by a subcontract subject to its approval for 
the operation by or on behalf of the Railroad Retirement Board of a 
system of records to accomplish an agency function, the Railroad 
Retirement Board shall, consistent with its authority, cause the 
requirements of section 552a of title 5 of the United States Code to be 
applied to such system. In each such contract or subcontract for the 
operation of a system of records, entered into on or after

[[Page 114]]

September 27, 1975, the Railroad Retirement Board shall cause to be 
included a provision stating that the contractors or subcontractors and 
their employees shall be considered employees of the Railroad Retirement 
Board for purposes of the civil and criminal penalties provided in 
sections (g) and (i) of the Privacy Act of 1974 (5 U.S.C. 552a (g) and 
(i)).
    (o) Mailing lists. The Railroad Retirement Board shall neither sell 
nor rent information containing any individual's name or address, unless 
authorized by statute.
    (p) Disclosure of social security account numbers. Whenever an 
individual is requested by the Railroad Retirement Board to disclose his 
social security account number he shall be informed as to whether such 
disclosure is mandatory or voluntary. If disclosure of the individual's 
social security account number is mandatory, he shall be informed of the 
statutory authority requiring such disclosure.

[41 FR 20580, May 19, 1976, as amended at 43 FR 17468, Apr. 25, 1978; 50 
FR 27222, July 2, 1985. Redesignated at 52 FR 11010, Apr. 6, 1987, as 
amended at 53 FR 3198, Feb. 4, 1988; 54 FR 43055, Oct. 20, 1989]



Sec. 200.6  Open meetings.

    (a) Definitions--(1) Meeting. For purposes of this section, the term 
``meeting'' shall mean the deliberations of at least two of the three 
members of the Railroad Retirement Board, which deliberations determine 
or result in the joint conduct or disposition of official agency 
business. The term ``meeting'' shall not include:
    (i) Deliberations of the Board members concerning the closure of a 
meeting, the withholding of any information with respect to a meeting, 
the scheduling of a meeting, the establishment of the agenda of a 
meeting, or any change in the scheduling, agenda, or the open or closed 
status of a meeting; or
    (ii) Consideration by the Board members of agency business 
circulated to them individually in writing for disposition by notation.
    (2) Public announcement. For purposes of this section the term 
``public announcement'' shall mean the posting of the notice of a 
scheduled meeting as required by this section on a bulletin board 
available to the public on the first floor of the Board's headquarters 
building located at 844 Rush Street, Chicago, Illinois 60611.
    (b)(1) The members of the Board shall not jointly conduct or dispose 
of agency business except in accordance with the procedures and 
requirements established by this section. Provided, however, That 
nothing in this section shall be construed so as to prohibit the Board 
from disposing of routine or administrative matters by sequential, 
notational voting.
    (2) Where agency business is disposed of by notational voting as 
provided in paragraph (b)(1) of this section, the minutes of the next 
succeeding Board meeting shall reflect such action.
    (3) Every portion of every meeting of the Board at which agency 
business is conducted or disposed of shall be open to public 
observation, except as provided in paragraph (c) of this section.
    (c)(1) Except as provided in this section, every portion of every 
meeting of the Board shall be open to the public. A meeting or a portion 
of a meeting may be closed where (i) the Board properly determines that 
the subject matter of the meeting or portion thereof is such as to make 
it likely that disclosure of matters falling within one or more of the 
exceptions set out in paragraph (c)(3) of this section would result, and 
(ii) the Board determines that the public interest would not require 
that the meeting or portion thereof be open to the public.
    (2) The requirements of paragraphs (d) and (e) of this section shall 
not apply to information pertaining to a meeting which would otherwise 
be required to be disclosed to the public under this section where the 
Board properly determines that the disclosure of the information is 
likely to disclose matters within the exceptions listed in paragraph 
(c)(3) of this section, and that the public interest would not require 
that the matters, even though excepted, should be disclosed.
    (3) The Board may close a meeting or a portion thereof and may 
withhold information concerning the meeting or portion thereof, 
including the explanation of closure, the description of the subject 
matter of the meeting, and the

[[Page 115]]

list of individuals expected to attend, which otherwise would be 
required to be made public under paragraphs (d) and (e) of this section, 
where it has determined, as provided in paragraphs (c)(1) and (2) of 
this section, where it has determined, as provided in paragraphs (c)(1) 
and (2) of this section, that the public interest would not otherwise 
require that the meeting or portion thereof be open or that the 
information be made public, and that the meeting, or portion thereof, or 
the disclosure of the information is likely to:
    (i) Disclose matters that are (A) specifically authorized under 
criteria established by Executive Order to be kept secret in the 
interests of national defense or foreign policy and (B) in fact properly 
classified pursuant to such executive order;
    (ii) Relate solely to the internal personnel rules and practices of 
the Board;
    (iii) Disclose matters exempted from disclosure under 45 U.S.C. 
362(d) and 362(n) and 45 U.S.C. 231f(b)(3) or disclose matters 
specifically exempted from disclosure by any other statute (other than 5 
U.S.C 552), Provided, That such other statute either requires that the 
matters be withheld from the public in such a manner as to afford no 
discretion on the issue or establishes particular criteria for 
withholding or refers to particular types of matters to be withheld;
    (iv) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (v) Involve accusing any person of a crime, or formally censuring 
any person;
    (vi) Disclose information of a personal nature where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (vii) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would
    (A) Interfere with law enforcement proceedings,
    (B) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (C) Constitute an unwarranted invasion of personal privacy,
    (D) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (E) Disclose investigative techniques and procedures, or
    (F) Endanger the life or physical safety of law enforcement 
personnel;
    (viii) Disclose information the premature disclosure of which would 
be likely to significantly frustrate implementation of a proposed Board 
action, except that this paragraph shall not apply in any instance where 
the Board has already disclosed to the public the content or nature of 
its proposed action, or where the Board is required by law to make such 
disclosure on its own initiative prior to taking final agency action on 
such proposal; or
    (ix) Specifically concern the agency's issuance of a subpoena, or 
the agency's participation in a civil action or proceeding, an action in 
a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the authority granted in 45 
U.S.C. 231f and 45 U.S.C. 365.
    (d)(1) Any action by the Board to close a meeting or a portion 
thereof, or to withhold any information pertaining to such meeting or 
portion thereof, shall be taken only upon the vote of at least two 
members of the Board that the meeting or portion thereof be closed or 
information withheld for one or more of the reasons set forth in 
paragraph (c)(3) of this section. A single vote may be taken with 
respect to a series of meetings, to close the meetings or portions 
thereof or to withhold information pertaining to such meetings, where 
the meetings or portions thereof involve the same subject matter and are 
scheduled within 30 calendar days after the date of the initial meeting 
in the series.
    (2) The vote of each member of the Board participating in the vote 
on closure of a meeting or portion thereof shall be recorded. Vote by 
proxy shall not be allowed.

[[Page 116]]

    (3) A person whose interests might be directly affected by a meeting 
or portion thereof which otherwise would be open may request that the 
meeting or portion thereof which concerns such person's interests be 
closed under paragraphs (c)(3)(v), (vi), or (vii) of this section. The 
request should be directed to The Secretary, Railroad Retirement Board, 
844 Rush Street, Chicago, Illinois 60611, and must be received no later 
than the beginning of the meeting to which it applies. Upon receipt of 
such a request the Board shall vote by recorded vote on the question as 
to whether the meeting or portion thereof should be closed.
    (4) Within one day following a vote taken under paragraphs (d)(2) 
and (3) of this section, a copy of such vote showing the vote of each 
member shall be available for public inspection and copying in the 
office of the Secretary of the Board, located in the Board's 
headquarters office.
    (5) If a meeting or portion thereof is closed in accordance with an 
action under paragraphs (d)(2) or (3) of this section, the Board shall, 
within one day following the vote, except to the extent such information 
is exempt from disclosure under paragraph (c) of this section, make 
available for inspection and copying in the office of the Secretary of 
the Board a written explanation of the Board's action and a list of the 
persons expected to attend and their affiliations.
    (e)(1) Except as to those meetings or portions of meetings scheduled 
as provided in paragraphs (d)(2) and (3) of this section, the Board 
shall for each meeting make public announcement at least one week prior 
thereto of the time, place and subject matter of the meeting, whether 
the meeting is to be open or closed to the public, and the name and 
telephone number of an official of the Railroad Retirement Board 
designated by the Board to respond to any requests from the public 
pertaining to the meeting.
    (2) The requirement contained in paragraph (e)(1) of this section 
that the Board give one week advance notice of each meeting shall not 
apply where the Board determines by majority vote, which vote shall be 
recorded, that agency business requires that a meeting be scheduled at 
an earlier date. If a meeting is scheduled less than one week in the 
future, as provided in this paragraph, the Board shall make a public 
announcement at the earliest practicable time of the time, place and 
subject matter of the meeting and whether the meeting is to be open or 
closed to the public.
    (3) The Board may change the time and place of a previously 
scheduled and announced meeting, but such change must be announced to 
the public at the earliest practicable time. The Board may change the 
subject matter, or its determination to open or close a meeting or 
portion thereof, of a previously scheduled and announced meeting only if 
(i) a majority of the Board determines by recorded vote that agency 
business requires the change and that no earlier public announcement of 
the change was possible, and (ii) the Board makes a public announcement 
of the change and the vote of each member thereon at the earliest 
practicable time.
    (4) Immediately following each public announcement required by this 
subsection, the Board shall submit for publication in the Federal 
Register notice of the time, place, and subject matter of the meeting, 
whether the meeting is to be open or closed, any changes in such items 
from a previous announcement, and the name and telephone number of the 
Railroad Retirement Board official designated by the Board to respond to 
requests concerning the announced meeting.
    (f)(1) Whenever the Board should determine to close a meeting or a 
portion of a meeting under any of the exemptions contained in paragraph 
(c)(3) of this section, the General Counsel of the Railroad Retirement 
Board shall, prior to the meeting, certify in writing that in his or her 
opinion the meeting or portion thereof may be closed to the public and 
shall state the applicable exemptions which permit closure. The Board 
shall maintain a copy of the General Counsel's certification and a copy 
of the statement of the presiding officer of the meeting setting forth 
the time and place of the meeting and a list of the persons present, 
other than those present merely as spectators.

[[Page 117]]

    (2) In the event that a meeting or any portion of a meeting is 
closed to the public, a complete transcript or recording shall be made 
of the meeting or portion thereof closed; Provided, however, That if the 
meeting or portion thereof is closed under paragraph (c)(3)(ix) of this 
section, a set of minutes may be made of the closed meeting or portion 
of a meeting in lieu of a complete transcript or recording thereof. If a 
set of minutes is the method chosen to record the proceedings of a 
meeting or portion thereof closed under paragraph (c)(3)(ix) of this 
section, such minutes shall fully and clearly describe the matters 
discussed. The minutes shall also fully reflect any actions taken by the 
Board, set forth a statement of the reasons for such actions, summarize 
each of the views expressed concerning such actions, identify any 
documents considered in connection with such agency actions, and show 
the vote of the Board and each of its members on such actions.
    (3) The transcript, recording, or minutes of each meeting or portion 
thereof closed to the public shall be available for public inspection or 
listening in the office of the Secretary of the Board, 844 Rush Street, 
Chicago, Illinois 60611, no later than two weeks following the meeting. 
There shall be expunged or erased from the transcript, recording, or 
minutes of each meeting which is made available to the public any items 
of discussion or testimony when it has been determined that they contain 
information which may be withheld under paragraph (c) of this section, 
and that the public interest would not require disclosure. The 
determination as to what items of discussion or testimony shall be 
expunged or erased from the copies of the transcript, recording, or 
minutes available to the public shall be made by the Secretary of the 
Board with the approval of the Board.
    (4) Copies of transcripts, minutes, or transcriptions of recordings 
maintained by the Board as provided in paragraph (e)(3) of this section 
shall be provided to members of the public who request such copies, at 
the actual cost of duplicating or transcription. Requests for copies of 
transcripts, minutes or transcriptions of recordings should be in 
writing, addressed to the Secretary of the Board, Railroad Retirement 
Board, 844 Rush Street, Chicago, Illinois 60611, and should clearly 
indicate the date of the meeting or meetings for which such copies are 
requested. If the requester desires a copy of only a portion or portions 
of the transcript, minutes, or transcription of a specified meeting, the 
request should specify which portion or portions are desired.
    (5) The Board shall maintain the complete transcript, recording, or 
minutes required to be made under paragraph (e)(2) of this section for a 
period of at least two years after the meeting, or for at least one year 
after the conclusion of any agency proceeding with respect to which the 
meeting or portion of the meeting was held, whichever occurs later.
    (g) Nothing in this section shall expand or limit the rights of any 
person under 5 U.S.C. 552, and 20 CFR 200.3, except that the exemptions 
contained in paragraph (c) of this section shall govern in the case of 
any request under 5 U.S.C. 552 and 20 CFR 200.3 to copy, inspect, or 
obtain copies of transcripts, recordings, or minutes described in 
paragraph (f) of this section. Nothing in this section shall limit the 
rights of any individual under 5 U.S.C. 552a and 20 CFR 200.4 to gain 
access to any record which would be available to such individual under 
those provisions.

[42 FR 15312, Mar. 21, 1977, as amended at 42 FR 22865, Nov. 11, 1977. 
Redesignated at 52 FR 11010, Apr. 6, 1987]



Sec. 200.7  Assessment or waiver of interest, penalties, and administrative costs with respect to collection of certain debts.

    (a) Purpose. The Debt Collection Act of 1982 requires the Board to 
charge interest on claims for money owed the Board, to assess penalties 
on delinquent debts, and to assess charges to cover the costs of 
processing claims for delinquent debts. The Act permits, and in certain 
cases requires, an agency to waive the collection of interest, penalties 
and charges under circumstances which comply with standards enunciated 
jointly by the Comptroller General and the Attorney General. Those 
standards are contained in 4 CFR

[[Page 118]]

102.13. This section contains the circumstances under which the Board 
may either assess or waive interest, penalties, and administrative costs 
which arise from benefit or annuity overpayments made under any of the 
Acts which the Board administers.
    (b)(1) Simple interest shall be assessed once a month on the unpaid 
principal of a debt.
    (2) Interest shall accrue from the date on which notice of the debt 
and demand for repayment with interest is first mailed or hand-delivered 
to the debtor, or in the case of a debt which is subject to section 
10(c) of the Railroad Retirement Act or section 2(d) of the Railroad 
Unemployment Insurance Act, interest shall accrue from the date that a 
denial of waiver of recovery is mailed or hand-delivered to the debtor 
or, if waiver has not been requested, upon the expiration of the time 
within which to request waiver, except as otherwise specified in this 
section.
    (3) In the case of a lien for reimbursement of sickness benefits 
pursuant to part 341 of this chapter, interest on the amount of the lien 
shall accrue from the date of settlement or the entry of final judgment.
    (4) The rate of interest assessed shall be the rate of the current 
value of funds to the U.S. Treasury (i.e., the Treasury tax and loan 
account rate) as prescribed and published in the Federal Register and 
the Treasury Financial Manual Bulletins annually or quarterly, in 
accordance with 31 U.S.C. 3717.
    (5) The rate of interest as initially assessed shall remain fixed 
for the duration of the indebtedness, except that where a debtor has 
defaulted on a repayment agreement and seeks to enter into a new 
agreement, a new interest rate may be assessed.
    (c)(1) A penalty charge of 6 percent per year shall be assessed on 
any debt that is delinquent for more than 90 days.
    (2) The penalty charge shall accrue from the date on which the debt 
became delinquent.
    (3) A debt is delinquent if it has not been paid in full by the 30th 
day after the date on which the initial demand letter was first mailed 
or hand-delivered, or, if the debt is being repaid under an installment 
payment agreement, at any time after the debtor fails to satisfy his or 
her obligation for payment thereunder.
    (4) In the case of a lien for reimbursement of sickness benefits 
pursuant to part 341 of this chapter, the amount of the lien is 
delinquent if it has not been paid in full by the 30th day after the 
date of settlement or entry of final judgment.
    (d)(1) Charges shall be assessed against the debtor for 
administrative costs incurred as a result of processing and handling the 
debt because it became delinquent.
    (2) Administrative costs include costs incurred in obtaining a 
credit report and in using a private debt collector.
    (e) When a debt is paid in partial or installment payments, amounts 
received shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and third to 
outstanding principal. Where a debtor is in default under an installment 
repayment agreement, uncollected interest, penalties and administrative 
cost charges which have accrued under the agreement shall be added to 
the principal to be paid under any new installment repayment agreement 
entered into between the Board and the debtor.
    (f) Exemptions. The assessment of interest, penalties, and 
administrative costs under this section does not apply to debts under 
sections 2(f) and 8(g) of the Railroad Unemployment Insurance Act (45 
U.S.C. 352(f) and 358(g)).
    (g)(1) The Board shall waive the collection of interest under the 
following circumstances:
    (i) When the debt is paid within thirty days after the date on which 
notice of the debt was mailed or personally delivered to the debtor,
    (ii) When, in any case where a decision with respect to waiver of 
recovery of an overpayment must be made:
    (A) The debt is paid within thirty days after the end of the period 
within which the debtor may request waiver of recovery, if no request 
for waiver is received within the prescribed time period; or
    (B) The debt is paid within thirty days after the date on which 
notice was

[[Page 119]]

mailed to the debtor that his or her request for waiver of recovery has 
been wholly or partially denied if the debtor requested waiver of 
recovery within the prescribed time limit; however, regardless of when 
the debt is paid, no interest may be charged for any period prior to the 
end of the period within which the debtor may request waiver of recovery 
or, if such request is made, for any period prior to the date on which 
notice was mailed to the debtor that his or her request for waiver of 
recovery has been wholly or partially denied;
    (iii) When, in the situations described in paragraphs (g)(1) (i) and 
(ii) of this section, the debt is paid within any extension of the 
thirty-day period granted by the Board;
    (iv) With respect to any portion of the debt which is paid within 
the time limits described in paragraphs (g)(1)(i), (g)(1)(ii), or 
(g)(1)(iii) of this section; or
    (v) In regard to any debt the recovery of which is waived.
    (2) The Board may waive the collection of interest, penalties and 
administrative costs in whole or in part in the following circumstances:
    (i) Where, in the judgment of the Board, collecting interest, 
penalty and administrative costs would be against equity and good 
conscience; or
    (ii) Where, in the judgment of the Board, collecting interest, 
penalty and administrative costs would not be in the best interest of 
the United States.
    (h)(1) In making determinations as to when the collection of 
interest, penalty and administrative costs is against equity and good 
conscience the Board will consider evidence on the following factors:
    (i) The fault of the overpaid individual in causing the underlying 
overpayment; and
    (ii) Whether the overpaid individual in reliance on the incorrect 
payment relinquished a valuable right or changed his or her position for 
the worse.
    (2) In rendering a determination as to when the collection of 
interest, penalties and administrative costs is not in the best interest 
of the United States the Board will consider the following factors:
    (i) Whether the collection of interest, penalties and administrative 
costs would result in the debt never being repaid; and
    (ii) Whether the collection of interest, penalties and 
administrative costs would cause undue hardship.

[52 FR 41559, Oct. 29, 1987, as amended at 59 FR 15049, Mar. 31, 1994]



Sec. 200.8  Disclosure of information obtained in the administration of the Railroad Retirement Act and the Railroad Unemployment Insurance Act.

    (a) Purpose and scope. The purpose of this section is to establish 
specific procedures necessary for compliance with section 12(d) of the 
Railroad Unemployment Insurance Act, which is incorporated into the 
Railroad Retirement Act by section 7(b)(3) of that Act. Except as 
otherwise indicated in this section, these regulations apply to all 
information obtained by the Railroad Retirement Board in connection with 
the administration of the Railroad Retirement Act and the Railroad 
Unemployment Insurance Act.
    (b) Definitions--Agency. The term agency refers to the Railroad 
Retirement Board, an independent agency in the executive branch of the 
United States Government.
    Applicant. The term applicant means a person who signs an 
application for an annuity or lump-sum payment or unemployment benefits 
or sickness benefits for himself or herself or for some other person.
    Beneficiary. The term beneficiary refers to an individual to whom a 
benefit is payable under either the Railroad Retirement Act or the 
Railroad Unemployment Insurance Act.
    Board. The term Board refers to the three-member governing body of 
the Railroad Retirement Board.
    Document. The term document includes correspondence, applications, 
claims, reports, records, memoranda and any other materials or data 
used, prepared, received or transmitted to, from, by or for the agency 
in connection with the administration of the Railroad Retirement Act or 
the Railroad Unemployment Insurance Act.
    Information. The term information means any non-medical document or

[[Page 120]]

data which is obtained by the agency in the administration of the 
Railroad Retirement Act and/or the Railroad Unemployment Insurance Act. 
Information does not include the fact of entitlement to or the amount of 
a benefit under either of these Acts. Medical records are subject to the 
disclosure provisions set out in Sec. 200.5(e) of this part.
    Testify and testimony. The terms testify and testimony include both 
in-person oral statements before a court or a legislative or 
administrative body and statements made in the form of depositions, 
interrogatories, declarations, affidavits or other means of formal 
participation in such proceedings.
    (c) General rule. Except as otherwise authorized by this section, 
information shall not be produced, disclosed, delivered or open to 
inspection in any manner revealing the identity of an employee, 
applicant or beneficiary unless the Board or its authorized designee 
finds that such production, disclosure, delivery, or inspection is 
clearly in furtherance of the interest of the employee, applicant or 
beneficiary or of the estate of such employee, applicant, or 
beneficiary. Where no such finding is made, no information shall be 
released except in accordance with the provisions of Sec. 200.5 of this 
part, unless release of such information is required by a law determined 
to supersede this general rule. In addition, regardless of whether or 
not such finding can be made, information which is compiled in 
anticipation of a civil or criminal action or proceeding against an 
applicant or beneficiary may not be released under this general rule.
    (d) Subpoenas--statement of policy and general rule. (1) It is the 
policy of the Board to provide information, data, and records to non-
Federal litigants to the same extent and in the same manner that they 
are available to the general public. The availability of Board employees 
to testify before state and local courts and administrative and 
legislative bodies, as well as in Federal court and administrative 
proceedings which involve non-Federal litigants, concerning information 
acquired in the course of performing their official duties or because of 
the employee's official capacity, is governed by the Board's policy of 
maintaining strict impartiality with respect to private litigants and 
minimizing the disruption of an employee's official duties. Thus, the 
Board may refuse to make an employee available for testimony under this 
paragraph or paragraph (e) or (f) of this section if it determines that 
the information sought is available other than through testimony and 
where making such employee available would cause disruption of agency 
operations. However, this paragraph does not apply to any civil or 
criminal proceeding where the United States, the Railroad Retirement 
Board, or any other Federal agency is a party; to Congressional requests 
or subpoenas for testimony; to consultative services and technical 
assistance provided by the Board or the agency in carrying out its 
normal program activities; to employees serving as expert witnesses in 
connection with professional and consultative services rendered as 
approved outside activities (in cases where employees are providing such 
outside services, they must state for the record that the testimony 
represents their own views and does not necessarily represent the 
official position of the agency); or to employees making appearances in 
their private capacity in legal or administrative proceedings that do 
not relate to the official business of the agency (such as cases arising 
out of traffic accidents, crimes, domestic relations, etc.) and not 
involving professional and consultative services as described above.
    (2) No officer, agent, or employee of the agency is authorized to 
accept or receive service of subpoenas, summons, or other judicial 
process addressed to the Board or to the agency except as the Board may 
from time to time delegate such authority by power of attorney. The 
Board has issued such power of attorney to the Deputy General Counsel of 
the agency and to no one else.
    (3) In the event the production, disclosure, or delivery of any 
information is called for on behalf of the United States or the agency, 
such information shall be produced, disclosed, or delivered only upon 
and pursuant to the advice of the Deputy General Counsel.

[[Page 121]]

    (4) When any member, officer, agent, or employee of the agency is 
served with a subpoena to produce, disclose, deliver, or furnish any 
information, he or she shall immediately notify the Deputy General 
Counsel of the fact of the service of such subpoena. Unless otherwise 
ordered by the Deputy General Counsel or his or her designee, he or she 
shall appear in response to the subpoena and respectfully decline to 
produce, disclose, deliver, or furnish the information, basing such 
refusal upon the authority of this section.
    (e) Subpoena duces tecum. (1) When any document is sought from the 
agency by a subpoena duces tecum or other judicial order issued to the 
agency by a court of competent jurisdiction in a proceeding wherein such 
document is relevant, a copy of such document, certified by the 
Secretary to the Board to be a true copy, may be produced, disclosed, or 
delivered by the agency if, in the judgment of the Board or its 
designee, such production is clearly in furtherance of the interest of 
the employee, applicant, or beneficiary to whom the document pertains, 
or is clearly in furtherance of the interest of the estate of such 
employee, applicant, or beneficiary, and such document does not consist 
of or include a report of medical information.
    (2) When the production, diclosure, or delivery of any document 
described in paragraph (e)(1) of this section would not be permitted 
under the standards therein set forth, no member, officer, agent, or 
employee of the agency shall make any disclosure of or testify with 
respect to such document.
    (f) Requests for voluntary testimony. All requests for testimony by 
a Board employee in his or her official capacity must be in writing and 
directed to the Deputy General Counsel. They shall state the nature of 
the requested testimony, why the information is not available by any 
other means, and the reasons, if any, why the testimony would be in the 
interest of the Board or the Federal government.
    (g) Authorized release of information. Subject to the limitation 
expressed in paragraph (h) of this section, disclosure of documents and 
information is hereby authorized, in such manner as the Board may by 
instructions prescribe, in the following cases:
    (1) To any employer, employee, applicant, or prospective applicant 
for an annuity or death benefit under the Railroad Retirement Act of 
1974, or his or her duly authorized representative, as to matters 
directly concerning such employer, employee, applicant, or prospective 
applicant in connection with the administration of such Act.
    (2) To any employer, employee, applicant or prospective applicant 
for benefits under the Railroad Unemployment Insurance Act, or his or 
her duly authorized representative, as to matters directly concerning 
such employer, employee, applicant, or prospective applicant in 
connection with the administration of such Act.
    (3) To any officer or employee of the United States lawfully charged 
with the administration of the Railroad Retirement Tax Act, the Social 
Security Act, or acts or executive orders administered by the Department 
of Veterans Affairs, and for the purpose of the administration of those 
Acts only.
    (4) To any applicant or prospective applicant for death benefits or 
accrued annuities under the Railroad Retirement Act, or to his or her 
duly authorized representative, as to the amount payable as such death 
benefits or accrued annuities, and the name of the person or persons 
determined by the agency to be the beneficiary, or beneficiaries, 
thereof, if such applicant or prospective applicant purports to have a 
valid reason for believing himself or herself to be, in whole or in 
part, the beneficiary thereof.
    (5) To any officer or employee of the United States lawfully charged 
with the administration of any Federal law concerning taxes imposed with 
respect to amounts payable under the Railroad Retirement Act of 1974 and 
the Railroad Unemployment Insurance Act and the name of the person or 
persons to whom such amount was payable.
    (6) To any officer or employee of any state of the United States 
lawfully charged with the administration of any law of such state 
concerning unemployment compensation, as to the amounts payable to 
payees or beneficiaries under the Railroad Retirement Act of

[[Page 122]]

1974 and the Railroad Unemployment Insurance Act.
    (7) To any court of competent jurisdiction in which proceedings are 
pending which relate to the care of the person or estate of an 
incompetent individual, as to amounts payable under the Railroad 
Retirement Act to such incompetent individual, but only for the purpose 
of such proceedings.
    (8) To parties involved in litigation, including an action with 
respect to child support, alimony, or marital property, the amount of 
any actual or estimated benefit payable under the Railroad Retirement 
Act or the Railroad Unemployment Insurance Act, where such amount or 
estimated amount is relevant to that litigation.
    (9) To any employer, as to the monthly amount of any retirement 
annuity under the Railroad Retirement Act of 1974 or benefit under the 
Railroad Unemployment Insurance Act to which a present or former 
employee of that employer is entitled.
    (10) To any governmental welfare agency, information about the 
receipt of benefits and eligibility for benefits.
    (11) To any law enforcement agency, information necessary to 
investigate or prosecute criminal activity in connection with claims for 
benefits under the Railroad Retirement Act, Railroad Unemployment 
Insurance Act, or any other Act the Board may be authorized to 
administer.
    (12) To any consular official, other than a consular officer of a 
country to which United States Treasury checks and warrants may not be 
sent, acting in behalf of a compatriot who has claimed benefits under 
the Railroad Retirement Act or Railroad Unemployment Insurance Act, 
information that is pertinent to the claim and that the applicant 
himself could have upon his or her own request.
    (h) No document and no information acquired solely by reason of any 
agreement, arrangement, contract, or request by or on behalf of the 
agency, relating to the gathering, preparation, receipt or transmittal 
of documents or information to, from or for the agency, which is by 
virtue of such agreement, arrangement, contract, or request in the 
possession of any person other than an employee of the agency, shall be 
produced, reproduced, or duplicated, disclosed or delivered by any 
person to any other person or tribunal (other than the agency or an 
employee thereof, or the person to whom the document or information 
pertains), whether in response to a subpoena or otherwise, except with 
the consent of the Board or its designee. Any person, upon receipt of 
any request, subpoena, or order calling for the production, disclosure, 
or delivery of such document or information shall notify the Board or 
its designee of the request, subpoena, or order and shall take no 
further action except upon advice of the Board or its designee. Unless 
consent of the Board or its designee is given, the person shall 
respectfully decline to comply with the request, subpoena or order.
    (i) Notwithstanding any other provision of this section, no 
disclosure of information may be made by the Board or any member, 
officer, agent, or employee of the agency, if the disclosure of such 
information is prohibited by law.
    (j) The Deputy General Counsel or his designee will request the 
assistance of the Department of Justice where necessary to represent the 
interests of the agency and its employees under this section.

[54 FR 43055, Oct. 20, 1989, as amended at 56 FR 50247, Oct. 4, 1991; 63 
FR 2141, Jan. 14, 1998]



Sec. 200.9  Selection of members of Actuarial Advisory Committee.

    (a) Introduction. Under section 15(f) of the Railroad Retirement Act 
of 1974 (45 U.S.C. 231n(f)), the Board is directed to select two 
actuaries to serve on an Actuarial Advisory Committee. This section 
describes how the two actuaries are selected.
    (b) Carrier actuary. One member of the Actuarial Advisory Committee 
shall be selected by recommendations made by ``carrier 
representatives.'' ``Carrier representatives,'' as used in this section, 
shall mean any organization formed jointly by the express companies, 
sleeping-car companies and carriers by railroad subject to the 
Interstate Commerce Act which own or control more than 50 percent of the 
total railroad mileage within the United States.

[[Page 123]]

    (c) Railway labor actuary. The other member of the Actuarial 
Advisory Committee to be selected by the Board shall be recommended by 
``representatives of employees.'' ``Representatives of employees,'' as 
used in this section, shall mean any organization or body formed jointly 
by a majority of railway labor organizations organized in accordance 
with the provisions of the Railway Labor Act, as amended, or any 
individual or committee authorized by a majority of such railway labor 
organizations to make such recommendation.

[54 FR 43056, Oct. 20, 1989]



Sec. 200.10  Representatives of applicant or beneficiaries.

    (a) Power of attorney. An applicant or a beneficiary shall not be 
required to hire, retain or utilize the services of an attorney, agent, 
or other representative in any claim filed with the Board. In the event 
an applicant or beneficiary desires to be represented by another person, 
he or she shall file with the Board prior to the time of such 
representation a power of attorney signed by such applicant or 
beneficiary and naming such other person as the person authorized to 
represent the applicant or beneficiary with respect to matters in 
connection with his or her claim. However, the Board may recognize one 
of the following persons as the duly authorized representative of the 
applicant or beneficiary without requiring such power of attorney when 
it appears that such recognition is in the interest of the applicant or 
beneficiary:
    (1) A Member of Congress;
    (2) A person designated by the railway labor organization of which 
the applicant or beneficiary is a member to act on behalf of members of 
that organization on such matters; or
    (3) An attorney who, in the absence of information to the contrary, 
declares that he or she is representing the applicant or beneficiary.
    (b) Payment of claim. The Board will not certify payment of any 
awarded claim to or through any person other than the applicant or 
beneficiary for the reason that a power of attorney for such person to 
represent such applicant or beneficiary has been filed.

[54 FR 43057, Oct. 20, 1989]

[[Page 124]]





       SUBCHAPTER B--REGULATIONS UNDER THE RAILROAD RETIREMENT ACT


PART 201--DEFINITIONS--Table of Contents




    Authority: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 
45 U.S.C. 228a, 228j.



Sec. 201.1  Words and phrases.

    For the purposes of the regulations in this chapter, except where 
the language or context indicates otherwise:
    (a) Act. The term ``act,'' or ``1937 act'' means the Railroad 
Retirement Act of 1937 (50 Stat. 307; 45 U.S.C. chapter 9). The term 
``1935 act,'' means the Railroad Retirement Act of 1935 (49 Stat. 967; 
45 U.S.C. chapter 9).
    (b) Employer. The term ``employer'' means an employer as defined in 
the act and part 202 of this chapter.
    (c) Employee. The term ``employee'' means an employee as defined in 
the act and part 203 of this chapter.
    (d) Service. The term ``service'' means service as defined in the 
act and part 220 of this chapter.
    (e) Compensation. The term ``compensation'' means compensation as 
defined in the act and part 222 of this chapter.
    (f) Board. The term ``Board'' means the Railroad Retirement Board.
    (g) Company. The term ``company'' means a partnership, association, 
joint stock company, corporation, or institution.
    (h) United States. The term ``United States'' where used in a 
geographical sense means the States and the District of Columbia.
    (i) Carrier. The term ``carrier'' means an express company, 
sleeping-car company, or carrier by railroad, subject to part I of the 
Interstate Commerce Act (24 Stat. 379; 49 U.S.C. chapter 1).
    (j) Person. The term ``person'' includes an individual, trust, 
estate, partnership, association, joint stock company, company, 
corporation, and institution.
    (k) General Committee. The term ``General Committee'' as used in 
section 1 of the Railroad Retirement Act of 1937 (50 Stat. 307; 45 
U.S.C., Sup., 228a) is construed to include any subordinate unit of a 
national railway labor organization, defined as an employer in the 1937 
act, regardless of the title or designation of such unit, which, under 
the constitution and bylaws of the organization of which it is a unit, 
is properly authorized to and does represent that organization on all of 
a particular railroad or on a substantial portion thereof (such as on 
that portion of a railroad under the jurisdiction of the general 
manager) in negotiating with the management of that railroad with 
respect to the wages and working conditions of the employees represented 
by such organization.
    (l) Local lodges and divisions; local lodge or division. The term 
``local lodges and divisions'' and the term ``local lodge or division'' 
as used in section 1(a) and 1(b), respectively, of the 1937 act, shall 
be construed to include any subordinate unit of a national railway labor 
organization defined as an ``employer'' under the 1937 act, which unit 
functions in the same manner as, or similar to ``local lodges'' as that 
term is ordinarily used, irrespective of the designation of such unit by 
its national organization.

[4 FR 1477, Apr. 7, 1939, as amended by Board Order 40-367, 5 FR 2717, 
Aug. 1, 1940; Board Order 59-190, 24 FR 9083, Nov. 7, 1959]



PART 202--EMPLOYERS UNDER THE ACT--Table of Contents




Sec.
202.1  Statutory provisions.
202.2  Company or person principally engaged in carrier business.
202.3  Company or person principally engaged in non-carrier business.
202.4  Control.
202.5  Company or person under common control.
202.6  Casual service and the casual operation of equipment or 
          facilities.
202.7  Service or operation in connection with railroad transportation.
202.8  Controlled company or person principally engaged in service or 
          operation in connection with railroad transportation.

[[Page 125]]

202.9  Controlled company or person not principally engaged in service 
          or operation in connection with railroad transportation.
202.10  Commencement of employer status of receiver or trustee, etc.
202.11  Termination of employer status.
202.12  Evidence of termination of employer status.
202.13  Electric railways.
202.14  Service incidental to railroad transportation.
202.15  Railway labor organizations.

    Authority: Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 
45 U.S.C. 228a, 228j, unless otherwise noted.

    Source: 4 FR 1478, Apr. 7, 1939, unless otherwise noted.



Sec. 202.1  Statutory provisions.

    The term ``employer'' means any carrier (as defined in subsection 
1(m) of this section), and any company which is directly or indirectly 
owned or controlled by one or more such carriers or under common control 
therewith, and which operates any equipment or facility or performs any 
service (except trucking service, casual service, and the casual 
operation of equipment or facilities) in connection with the 
transportation of passengers or property by railroad, or the receipt, 
delivery, elevation, transfer in transit, refrigeration or icing, 
storage, or handling of property transported by railroad, and any 
receiver, trustee, or other individual or body, judicial or otherwise, 
when in the possession of the property or operating all or any part of 
the business of any such employer: Provided, however, That the term 
``employer'' shall not include any street, interurban, or suburban 
electric railway, unless such railway is operating as a part of a 
general steam-railroad system of transportation, but shall not exclude 
any part of the general steam-railroad system now or hereafter operated 
by any other motive power. The Interstate Commerce Commission is hereby 
authorized and directed upon request of the Board, or upon complaint of 
any party interested, to determine after hearing whether any line 
operated by electric power falls within the terms of this proviso. The 
term ``employer'' shall also include railroad associations, traffic 
associations, tariff bureaus, demurrage bureaus, weighing and inspection 
bureaus, collection agencies and other associations, bureaus, agencies, 
or organizations controlled and maintained wholly or principally by two 
or more employers as hereinbefore defined and engaged in the performance 
of services in connection with or incidental to railroad transportation; 
and railway labor organizations, national in scope, which have been or 
may be organized in accordance with the provisions of the Railway Labor 
Act, as amended, and their State and National legislative committees and 
their general committees and their insurance departments and their local 
lodges and divisions, established pursuant to the constitution and by-
laws of such organizations. (Sec. 1 (a), 50 Stat. 307; 45 U. S. C. 228a 
(a))
    The term ``employer'' shall not include any company by reason of its 
being engaged in the mining of coal, the supplying of coal to an 
employer where delivery is not beyond the mine tipple, and the operation 
of equipment or facilities therefore, or in any of such activities. (54 
Stat. 785; 45 U.S.C. 228a (a))

[4 FR 1478, Apr. 7, 1939, as amended by Board Order 41-526, 7 FR 96, 
Jan. 6, 1942]



Sec. 202.2  Company or person principally engaged in carrier business.

    Any company or person principally engaged in carrier business is an 
employer.



Sec. 202.3  Company or person principally engaged in non-carrier business.

    (a) With respect to any company or person principally engaged in 
business other than carrier business, but which, in addition to such 
principal business, engages in some carrier business, the Board will 
require submission of information pertaining to the history and all 
operations of such company or person with a view to determining whether 
some identifiable and separable enterprise conducted by the person or 
company is to be considered to be the employer. The determination will 
be made in the light of considerations such as the following:
    (1) The primary purpose of the company or person on and since the 
date it was established;
    (2) The functional dominance or subservience of its carrier business 
in relation to its non-carrier business;
    (3) The amount of its carrier business and the ratio of such 
business to its entire business;
    (4) Whether its carrier business is a separate and distinct 
enterprise.
    (b) In the event that the employer is found to be an aggregate of 
persons or legal entities or less than the whole of a legal entity or a 
person operating in only one of several capacities, then the unit or 
units competent to assume legal obligations shall be responsible for the 
discharge of the duties of the employer.

[[Page 126]]



Sec. 202.4  Control.

    A company or person is controlled by one or more carriers, whenever 
there exists in one or more such carriers the right or power by any 
means, method or circumstance, irrespective of stock ownership to 
direct, either directly or indirectly, the policies and business of such 
a company or person and in any case in which a carrier is in fact 
exercising direction of the policies and business of such a company or 
person.



Sec. 202.5  Company or person under common control.

    A company or person is under common control with a carrier, whenever 
the control (as the term is used in Sec. 202.4) of such company or 
person is in the same person, persons, or company as that by which such 
carrier is controlled.



Sec. 202.6  Casual service and the casual operation of equipment or facilities.

    The service rendered or the operation of equipment or facilities by 
a controlled company or person in connection with the transportation of 
passengers or property by railroad is ``casual'' whenever such service 
or operation is so irregular or infrequent as to afford no substantial 
basis for an inference that such service or operation will be repeated, 
or whenever such service or operation is insubstantial.



Sec. 202.7  Service or operation in connection with railroad transportation.

    The service rendered or the operation of equipment or facilities by 
persons or companies owned or controlled by or under common control with 
a carrier is in connection with the transportation of passengers or 
property by railroad, or the receipt, delivery, elevation, transfer in 
transit, refrigeration or icing, storage, or handling of property 
transported by railroad, if such service or operation is reasonably 
directly related, functionally or economically, to the performance of 
obligations which a company or person or companies or persons have 
undertaken as a common carrier by railroad, or to the receipt, delivery, 
elevation, transfer in transit, refrigeration or icing, storage, or 
handling of property transported by railroad.



Sec. 202.8  Controlled company or person principally engaged in service or operation in connection with railroad transportation.

    Any company or person owned or controlled by one or more carriers or 
under common control therewith, whose principal business is the 
operation of equipment or facilities or the performance of service 
(other than trucking service) in connection with the transportation of 
passengers or property by railroad, shall be an employer.



Sec. 202.9  Controlled company or person not principally engaged in service or operation in connection with railroad transportation.

    (a) With respect to any company or person owned or controlled by one 
or more carriers or under common control therewith, performing a service 
or operating equipment in connection with the transportation of 
passengers or property by railroad, or the receipt, delivery, elevation, 
transfer in transit, refrigeration or icing, storage, or handling of 
property transported by railroad, but which is principally engaged in 
some other business, the Board will require the submission of 
information pertaining to the history and all operations of such company 
or person with a view to determining whether it is an employer or 
whether some identifiable and separable enterprise conducted by the 
person or company is to be considered to be the employer, and will make 
a determination in the light of considerations such as the following:
    (1) The primary purpose of the company or person on and since the 
date it was established;
    (2) The functional dominance or subservience of its business which 
constitutes a service or operation of equipment or facilities in 
connection with the transportation of passengers or property by railroad 
in relation to its other business;
    (3) The amount of its business which constitutes a service or 
operation of equipment or facilities in connection with the 
transportation of passengers or property by railroad and the ratio of 
such business to its entire business;
    (4) Whether such service or operation is a separate and distinct 
enterprise;

[[Page 127]]

    (5) Whether such service or operation is more than casual, as that 
term is defined in Sec. 202.6.
    (b) In the event that the employer is found to be an aggregate of 
persons or legal entities or less than the whole of a legal entity or a 
person operating in only one of several capacities, then the unit or 
units competent to assume legal obligations shall be responsible for the 
discharge of the duties of the employer.



Sec. 202.10  Commencement of employer status of receiver or trustee, etc.

    A receiver, trustee, or other individual or body, judicial or 
otherwise, in the possession of the property or operating all or any 
part of the business of a carrier, or of a company or person owned or 
controlled by or under common control with such a carrier, which 
operates any equipment or facility or performs any service in connection 
with the transportation of passengers or property by railroad, shall be 
deemed to be an employer beginning as of whichever of the following 
three dates is the earliest:
    (a) The date that it takes possession of such property; or
    (b) The first date on which it has authority to operate all or any 
part of the business of such a carrier, company or person; or
    (c) The date that it begins operating without appointment or 
authorization all or any part of the business of such a carrier, company 
or person;

Provided, however, That the receiver, trustee, or other individual or 
body, judicial or otherwise, shall be an employer only with respect to 
such individuals as would be employees if the preceding employer had 
continued in the possession of the property or the operation of the 
business.



Sec. 202.11  Termination of employer status.

    The employer status of any company or person shall terminate 
whenever such company or person loses any of the characteristics 
essential to the existence of an employer status.

[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]



Sec. 202.12  Evidence of termination of employer status.

    (a) In determining whether a cessation of an essential 
characteristic, such as control or service in connection with railroad 
transportation, has occurred, consideration will be given only to those 
events or actions which evidence a final or complete cessation. Mere 
temporary periods of inactivity or failure to exercise functions or to 
operate equipment or facilities will not necessarily result in a loss of 
employer status.
    (b) The actual date of cessation of employer status shall be the 
date upon which final or complete cessation of an essential employer 
characteristic occurs. The following indicate but do not delimit the 
type of evidence that will be considered in determining the actual date 
of cessation of an employer status: stoppage of business or operations; 
the cancellation of tariffs, concurrences, or powers of attorney filed 
with the Interstate Commerce Commission; the effective date of a 
certificate permitting abandonment; the effective date of a pertinent 
judicial action such as the discharge of a receiver, trustee, or other 
judicial officer, or an order approving sale of equipment or machinery; 
the sale, transfer, or lease of property, equipment, or machinery 
essential to the continuance of an employer function or to control by a 
carrier employer; public or private notices of contemplated or scheduled 
abandonment or cessation of operations; termination of contract; 
discharge of last employee; date upon which the right of a railway labor 
organization to participate in the selection of labor members of the 
National Railroad Adjustment Board ceases or is denied; and date on 
which an employer, if a labor organization, ceases to represent or is 
denied the right to represent crafts or classes of employees in the 
railroad industry, or to promote the interests of employees in the 
railroad industry.
    (c) In the absence of evidence to the contrary the employer status 
of an existing company or person shall be presumed to continue, and in 
accordance with Sec. 250.1(b) of this chapter it is the

[[Page 128]]

duty of each employer promptly to notify the Board of any change in 
operations affecting such company's status as an employer.

[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]



Sec. 202.13  Electric railways.

    (a) The Deputy General Counsel will require the submission of 
information pertaining to the history and operations of an electric 
railway with a view to determining whether it is an employer and will 
inquire into and make his recommendations upon the following 
considerations:
    (1) Whether the electric railway is more than a street, suburban or 
interurban electric railway; or
    (2) Whether it is operating as a part of a general steam-railroad 
system of transportation; or
    (3) Whether it is part of the national transportation system.
    (b) If in the opinion of the Deputy General Counsel an electric 
railway has the characteristic set forth in either paragraphs (a)(1), 
(2), or (a)(3) of this section, he will conclude that it is an employer 
under the act and if the operator concurs in such opinion, the decision 
will be made final by the Board. If the operator does not concur in the 
conclusion reached the question will be submitted to the Interstate 
Commerce Commission for determination.

(45 U.S.C. 231f(b)(5))

[4 FR 1478, Apr. 7, 1939, as amended at 48 FR 51448, Nov. 9, 1983]



Sec. 202.14  Service incidental to railroad transportation.

    An organization, association, bureau or agency is performing a 
service in connection with or incidental to railroad transportation 
whenever it is engaged in the performance of functions which would 
normally be performed by the constituent employers in the absence of 
such organization, association, bureau, or agency.



Sec. 202.15  Railway labor organizations.

    Railway labor organizations, national in scope, which have been or 
may be organized in accordance with the provisions of the Railway Labor 
Act, as amended, and their State and National legislative committees and 
their general committees and their insurance departments and their local 
lodges and divisions, established pursuant to the constitution and 
bylaws of such organizations, shall be employers within the meaning of 
the act.
    (a) An organization doing business on or after June 21, 1934, which 
establishes, in accordance with paragraph (a)(1), (2), or (3) of this 
section a right, under section 3 ``First'' (a) of the Railway Labor Act, 
as amended (48 Stat. 1189; 45 U.S.C. 153 ``First'' (a)), to participate 
in the selection of labor members of the National Railroad Adjustment 
Board, will be presumed, in the absence of clear and convincing evidence 
to the contrary, to be, from and after the date on which such right is 
thus established, a labor organization, national in scope and organized 
in accordance with the provisions of the Railway Labor Act, as amended. 
Such an organization can establish that it is an employer by 
establishing, in accordance with paragraph (b) of this section, that, as 
a labor organization, national in scope and organized in accordance with 
the provisions of the Railway Labor Act, as amended, it is a ``railway'' 
organization. An organization, doing business on or after June 21, 1934, 
which has not established such a right of participation, will be 
presumed not to be a labor organization, national in scope and organized 
in accordance with the provisions of the Railway Labor Act, as amended, 
and such presumption can be rebutted only by clear and convincing 
evidence satisfactory to the Board showing that the reasons for the 
organization's failure to establish such a right have no relation to its 
being a labor organization, national in scope and organized in 
accordance with the provisions of the Railway Labor Act, as amended. 
Only after such presumption has thus been rebutted will further evidence 
as to whether the organization is an employer be considered. (The 
establishment or nonestablishment of such a right of participation will 
not raise any presumption as to whether an organization is, or is not, a 
``railway'' organization. The existence of this qualification shall be 
determined in accordance with paragraph (b) of this section.) An

[[Page 129]]

organization will have established such a right of participation if:
    (1) It has in fact participated in the selection of labor members of 
the National Railroad Adjustment Board and has continued to participate 
in such selection; or
    (2) It has been found, under section 3 ``First'' (f) of the Railway 
Labor Act, as amended (48 Stat. 1190; 45 U.S.C. 153 ``First'' (f)), to 
be qualified to participate in the selection of labor members of the 
National Railroad Adjustment Board; or
    (3) It is recognized by all organizations, qualified under 
paragraphs (a)(1) or (2) of this section, as having the right to 
participate in the selection of labor members of the National Railroad 
Adjustment Board.
    (b) The question as to whether a labor organization, national in 
scope, and organized in accordance with the provisions of the Railway 
Labor Act, as amended, is, as such a national labor organization, a 
``railway'' labor organization, will be determined by the Board on the 
basis of considerations such as the following:
    (1) The extent to which it is, and has been recognized as, 
representative of crafts or classes of employees in the railroad 
industry.
    (2) The extent to which its purposes and business are and have been 
to promote the interests of employees in the railroad industry.
    (c) A labor organization which ceased doing business before June 21, 
1934, will have been an employer if its characteristics were 
substantially the same as those of labor organizations, doing business 
on or after June 21, 1934, which are established as employers in 
accordance with paragraphs (a) and (b) of this section.
    (d) An organization which establishes, to the satisfaction of the 
Board, that it is a labor organization, as defined in paragraph (e) of 
this section, and that is composed of labor organizations which are 
established as employers in accordance with paragraphs (a), (b), and (c) 
of this section, is thereby established as being an employer.
    (e) For the purposes of the regulations in this chapter, a labor 
organization is an organization whose business is to promote the 
interests of employees in their capacity as employees, either directly 
or through their organizations.



PART 203--EMPLOYEES UNDER THE ACT--Table of Contents




Sec.
203.1  Statutory provisions.
203.2  General definition of employee.
203.3  When an individual is performing service for an employer.
203.4  When service is compensated.
203.5  Service outside the United States.
203.6  Age, citizenship, and other factors.
203.7  Local lodge employee.

    Authority: Secs. 1, 10, 50 Stat. 307, as amended, 314 as amended; 45 
U.S.C. 228a, 228j, unless otherwise noted.

    Source: 12 FR 1133, Feb. 19, 1947, unless otherwise noted.



Sec. 203.1  Statutory provisions.

    The term ``employee'' means (1) any individual in the service of one 
or more employers for compensation, (2) any individual who is in the 
employment relation to one or more employers, and (3) an employee 
representative. The term ``employee'' shall include an employee of a 
local lodge or division defined as an employer in sub-section (a) only 
if he was in the service of or in the employment relation to a carrier 
on or after the enactment date. The term ``employee representative'' 
means any officer or official representative of a railway labor 
organization other than a labor organization included in the term 
``employer'' as defined in section 1(a) who before or after the 
enactment date was in the service of an employer as defined in section 
1(a) and who is duly authorized and designated to represent employees in 
accordance with the Railway Labor Act, as amended, and any individual 
who is regularly assigned to or regularly employed by such officer or 
official representative in connection with the duties of his office.
    The term ``employee'' shall not include any individual while such 
individual is engaged in the physical operations consisting of the 
mining of coal, the preparation of coal, the handling (other than 
movement by rail with standard railroad locomotives) of coal

[[Page 130]]

not beyond the mine tipple, or the loading of coal at the tipple.
    An individual is in the service of an employer whether his service 
is rendered within or without the United States if (i) he is subject to 
the continuing authority of the employer to supervise and direct the 
manner of rendition of his service, or he is rendering professional or 
technical services and is integrated into the staff of the employer, or 
he is rendering, on the property used in the employer's operations, 
other personal services the rendition of which is integrated into the 
employer's operations, and (ii) he renders such service for 
compensation, or a method of computing the monthly compensation for such 
service is provided in section 3(c): Provided, however, That an 
individual shall be deemed to be in the service of an employer, other 
than a local lodge or division or a general committee of a railway-
labor-organization employer, not conducting the principal part of its 
business in the United States only when he is rendering service to it in 
the United States; and an individual shall be deemed to be in the 
service of such a local lodge or division only if (1) all, or 
substantially all, the individuals constituting its membership are 
employees of an employer conducting the principal part of its business 
in the United States; or (2) the headquarters of such local lodge or 
division is located in the United States; and an individual shall be 
deemed to be in the service of such a general committee only if (1) he 
is representing a local lodge or division described in clauses (1) or 
(2) immediately above; or (2) all, or substantially all, the individuals 
represented by it are employees of an employer conducting the principal 
part of its business in the United States; or (3) he acts in the 
capacity of a general chairman or an assistant general chairman of a 
general committee which represents individuals rendering service in the 
United States to an employer, but in such case if his office or 
headquarters is not located in the United States and the individuals 
represented by such general committee are employees of an employer not 
conducting the principal part of its business in the United States, only 
such proportion of the remuneration for such service shall be regarded 
as compensation as the proportion which the mileage in the United States 
under the jurisdiction of such general committee bears to the total 
mileage under its jurisdiction, unless such mileage formula is 
inapplicable in which case the Board may prescribe such other formula as 
it finds to be equitable, and if the application of such mileage 
formula, or such other formula as the Board may prescribe, would result 
in the compensation of the individual being less than 10 per centum of 
his remuneration for such service no part of such remuneration shall be 
regarded as compensation: Provided further, That an individual not a 
citizen or resident of the United States shall not be deemed to be in 
the service of an employer when rendering service outside the United 
States to an employer who is required under the laws applicable in the 
place where the service is rendered to employ therein, in whole or in 
part, citizens or residents thereof; and the laws applicable on August 
29, 1935, in the place where the service is rendered shall be deemed to 
have been applicable there at all times prior to that date.



Sec. 203.2  General definition of employee.

    An individual shall be an employee whenever (a) he is engaged in 
performing compensated service for an employer or (b) he is in an 
employment relation to an employer, or (c) he is an employee 
representative, or (d) he is an officer of an employer.



Sec. 203.3  When an individual is performing service for an employer.

    (a) The legal relationship of employer and employee is defined by 
the act. Thus, an individual is performing service for an employer if:
    (1) He is subject to the right of an employer, directly or through 
another, to supervise and direct the manner in which his services are 
rendered; or
    (2) In rendering professional or technical services he is integrated 
into the staff of the employer; or
    (3) He is rendering personal services on the property used in the 
operations of the employer and the services are integrated into those 
operations.

[[Page 131]]

    (b) The provisions in paragraph (a) of this section are controlling 
irrespective of whether the service is performed on a part-time basis, 
and, with respect to paragraph (a)(1) of this section, irrespective of 
whether the right to supervise and direct is exercised.



Sec. 203.4  When service is compensated.

    Service shall be ``compensated'' if it is performed for 
compensation, as that term is defined in part 222 of this chapter: 
Provided, however, That service prior to September 1941 of a station 
employee whose duties consisted of or included the carrying of 
passengers' hand baggage and otherwise assisting passengers at passenger 
stations shall be considered compensated service although the 
individual's remuneration was, in whole or in part, in the form of tips. 
(For the effect of compensation of less than $3.00 per month earned 
after December 31, 1936, for service to a local lodge or division of a 
railway-labor-organization employer, see part 222 of this chapter.)


(Sec. 3, 50 Stat. 310, as amended; 45 U.S.C. 228c)



Sec. 203.5  Service outside the United States.

    (a) An individual shall not be an employee by reason of rendition of 
service to an employer other than a local lodge or division, or a 
general committee of a railway-labor-organization employer, not 
conducting the principal part of its business in the United States 
except while engaged in performing service for it in the United States.
    (b) An individual shall not be an employee by reason of rendition of 
service to a local lodge or division, unless:
    (1) All, or substantially all the individuals constituting the 
membership of such local lodge or division are employees of an employer 
conducting the principal part of its business in the United States; or
    (2) The headquarters of such local lodge or division is located in 
the United States.
    (c) An individual shall not be an employee by reason of rendition of 
service to a general committee of a railway-labor-organization employer, 
unless:
    (1) Such individual is representing a local lodge or division, all 
or substantially all of whose members are employees of an employer 
conducting the principal part of its business in the United States, or 
the headquarters of such local lodge or division is located in the 
United States; or
    (2) All or substantially all the individuals represented by such a 
general committee are employees of an employer conducting the principal 
part of its business in the United States; or
    (3) Such an individual acts in the capacity of a general chairman or 
an assistant general chairman of a general committee which represents 
individuals rendering service in the United States to an employer; 
Provided, however, That if the office or headquarters of such general 
chairman or assistant general chairman is not located within the United 
States he will not be an employee unless 10 percent or more of his 
remuneration for service as general chairman or assistant general 
chairman is creditable as compensation, the creditable compensation to 
be computed according to the proportion which the mileage in the United 
States under the jurisdiction of such general committee bears to the 
total mileage under its jurisdiction, or according to a formula to be 
prescribed by the Board if the mileage formula is inapplicable.



Sec. 203.6  Age, citizenship, and other factors.

    The age, citizenship, or residence of an individual, or his 
designation as other than an ``employee'' shall not be controlling in 
determining whether or not such individual is an employee within the 
meaning of the act, except that an individual not a citizen or resident 
of the United States shall not be deemed to be in the service of an 
employer when rendering service outside the United States to an employer 
who is required by the laws of the place where the service is performed 
to employ, in whole or in part, citizens or residents thereof and the 
laws in force therein on August 29, 1935, shall be deemed to have been 
in force at all times prior to that date.

[Board Order 55-89, 20 FR 3706, May 27, 1955]

[[Page 132]]



Sec. 203.7  Local lodge employee.

    An individual who, prior to January 1, 1937, shall have rendered 
service to a local lodge or division of a railway labor organization 
included as an employer under section 1(a) of the act, shall be an 
employee with respect to such service to such local lodge or division 
only if he was on August 29, 1935, in the service of or in an employment 
relation to an employer which was a carrier. An individual who, 
subsequent to December 31, 1936, shall have rendered service to a local 
lodge or division of a railway labor organization included as an 
employer under section 1(a) of the act, shall be an employee with 
respect to such service to such local lodge or division only with 
respect to such service as was preceded by service, or an employment 
relation, on or after August 29, 1935, to an employer which was a 
carrier. (For the effect of compensation less than $3.00 per month 
earned after December 31, 1936, for service to a local lodge or division 
of a railway-labor-organization employer, see part 222 of this chapter.)



PART 204--EMPLOYMENT RELATION--Table of Contents




Sec.
204.1  Introduction.
204.2  Employment relation--determination by the Board.
204.3  Employment relation--prior service.
204.4  Conditions which preclude an employment relation.
204.5  Employment relation--deemed service.
204.6  Employment relation--pay for time lost.
204.7  Employment relation--service to a local lodge or division of a 
          railway labor organization.

    Authority: 45 U.S.C. 231f.

    Source: 54 FR 5224, Feb. 2, 1989, unless otherwise noted.



Sec. 204.1  Introduction.

    In order for an individual to receive credit under the Railroad 
Retirement Act (Act) for railroad service prior to 1937, he or she must 
establish that he or she was actively working for an employer under the 
Act on August 29, 1935, or was in an employment relation to an emp]oyer 
on that date. Section 204.3 of this part defines employment relation for 
purposes of establishing prior service. It is also necessary to 
establish an employment relation to an employer for any month in which 
an individual wishes to receive a deemed service month, as provided for 
in Sec. 210.3 of this chapter, and to receive credit for pay for time 
lost as provided for in Sec. 211.3 of this chapter. This part defines 
employment relation for these purposes. See Secs. 204.5 and 204.6. In 
addition, in order for an individual to have his or her service to a 
local lodge or division of a railway labor organization considered as 
creditable service under the Act, he or she must establish that he or 
she was working for a railroad or in an employment relation to a 
railroad on or after August 29, 1935, and that such employment or 
employment relation preceded his or her service to the local lodge or 
division. Section 204.7 defines employment relation for this purpose.



Sec. 204.2  Employment relation--determination by the Board.

    The existence or non-existence of an employment relation, as defined 
in this part, is a conclusion which must be reached by the Board or its 
authorized officers or employees upon the basis of the evidence before 
the agency. The employer and the employee are the principal sources of 
evidence with respect to a determination whether an employment relation 
existed, but the Board will not be bound by the mere conclusion of the 
employer or the employee that the employee had or did not have an 
employment relation.



Sec. 204.3  Employment relation--prior service.

    An individual shall have an employment relation to an employer on 
August 29, 1935, for purposes of crediting service prior to January 1, 
1937, if:
    (a) He or she was in the service of an employer on that date; or
    (b) He or she was on that date on 1eave of absence expressly granted 
by the employer or by a duly authorized representative of such employer, 
but only if such leave of absence was established to the satisfaction of 
the Board before July 1947; or
    (c) He or she was in the service of an employer after that date and 
before

[[Page 133]]

January 1946, in each of six calendar months, whether or not 
consecutive; or
    (d) Before that date he or she did not retire and was not retired or 
discharged from the service of the last employer by whom he or she was 
employed, but solely by reason of a physical or mental disability he or 
she ceased before August 29, 1935, to be in the service of such employer 
and thereafter remained continuously disabled until he or she attained 
age sixty-five or until August 1945; or
    (e) Solely for the reason stated in paragraph (c) of this section an 
employer by whom he or she was employed before August 29, 1935, did not 
on or after August 29, 1935, and before August 1945, call him or her to 
return to service, or if he or she were called to return to service he 
or she for such reason was unable to render service in six calendar 
months as provided in paragraph (b) of this section; or
    (f) He or she was on August 29, 1935, absent from the service of an 
employer by reason of a discharge which, within one year after the 
effective date thereof, was protested to an appropriate labor 
representative or to the employer, as wrongful, and which was followed 
within ten years of the effective date thereof by his or her 
reinstatement in good faith to his or her former service with all his or 
her seniority rights.



Sec. 204.4  Conditions which preclude an employment relation.

    (a) An individual shall not have been on August 29, 1935, an 
employee by reason of an employment relation if, during the last payroll 
period in which he or she rendered service to an employer prior to that 
date, such service was rendered outside of the United States to an 
employer not conducting the principal part of its business in the United 
States.
    (b) An individual may not acquire an employment relation solely by 
virtue of service to a local lodge or division of a railway labor 
organization.



Sec. 204.5  Employment relation--deemed service.

    For the purpose of crediting deemed service months as provided in 
Sec. 210.3(b) of this chapter, an individual must have maintained an 
employment relation to one or more employers in the month or months to 
be deemed. For that purpose an employment relation exists with respect 
to any month in which an individual, although not in the active service 
of an employer, is on furlough subject to recall by an employer, is on a 
bona fide leave of absence, has not been retired or discharged but was 
by reason of continuous disability unable to return to service, or was 
not in active service because of a discharge later determined to be 
wrongful. However, an employment relation with respect to an employer 
ceases after an individual has resigned or relinquished his or her 
rights to return to the service of that employer or after the individual 
becomes entitled to receive an annuity under the Railroad Retirement 
Act.



Sec. 204.6  Employment relation--pay for time lost.

    For the purpose of crediting pay for time lost as provided in 
Sec. 211.3 of this chapter, an individual must have maintained an 
employment relation to one or more employers in the month or months to 
be credited with pay for time lost. For that purpose an employment 
relation exists with respect to any month in which an individual, 
although not in the active service of an employer, is on furlough 
subject to recall by an employer, is on a bona fide leave of absence, 
has not been retired or discharged but was by reason of continuous 
disability unable to return to service, or was not in active service 
because of a discharge later determined to be wrongful. However, an 
employment relation with respect to an employer ceases after an 
individual has resigned or relinquished his or her rights to return to 
the service of that employer.



Sec. 204.7  Employment relation--service to a local lodge or division of a railway labor organization.

    Service by an individual to a local lodge or division of a railway 
labor organization shall be creditable under the Railroad Retirement Act 
only if, prior to such service, and on or after

[[Page 134]]

August 29, 1935, such individual performed compensated service for a 
carrier employer under part 202 of this chapter or was in an employment 
relation to such a carrier employer under the rules set forth in 
Sec. 204.3 of this part.



PART 205--EMPLOYEE REPRESENTATIVE--Table of Contents




Sec.
205.1  Introduction.
205.2  Definition of employee representative.
205.3  Factors considered in determining employee representative status.
205.4  Claiming status as an employee representative.
205.5  Reports of an employee representative.
205.6  Service of an employee representative.
205.7  Termination of employee representative status.

    Authority: 45 U.S.C. 231, 45 U.S.C. 231f, 45 U.S.C. 231h.

    Source: 53 FR 39255, Oct. 6, 1988, unless otherwise noted.



Sec. 205.1  Introduction.

    This part sets out the various factors considered in determining an 
individual's status as an employee representative under section 1(b)(1) 
of the Railroad Retirement Act, and discusses the procedure for 
reporting and crediting of compensation and service as an employee 
representative under that Act. An employee representative is considered 
to be a covered employee under the provisions of the Railroad Retirement 
Act.



Sec. 205.2  Definition of employee representative.

    (a) An individual shall be an employee representative within the 
meaning of the Railroad Retirement Act if he or she is an officer or 
official representative of a railway labor organization, other than a 
labor organization included in the term ``employer'' within the meaning 
of part 202 of these regulations, who before or after August 29, 1935, 
was in the service of an ``employer'' within the meaning of part 202 of 
these regulations and who is duly authorized and designated to represent 
employees in accordance with the Railway Labor Act, as amended.
    (b) An individual is also considered to be an employee 
representative within the meaning of the Act if he or she is regularly 
assigned to or regularly employed by an individual described in 
paragraph (a) of this section in connection with the duties of the 
office of employee representative of said individual.
    (c) Example: A is employed by railroad R as a carman. He is also 
employed as recording secretary for the local chapter of union U, which 
has been recognized as the collective bargaining representative of the 
carmen of R. Although U represents some railroad employees, it is not a 
railway labor organization as described in part 202 of these 
regulations. A is an employee representative. His service for U is 
treated as employee service under the Railroad Retirement Act.



Sec. 205.3  Factors considered in determining employee representative status.

    The following factors, among others, are considered by the Board in 
determining an individual's status as an employee representative:
    (a) The name of the last railroad or other employer under the Act by 
which the individual was employed, and the period of employment;
    (b) The present official name of the organization by which the 
individual is employed, as well as any other name(s) under which that 
organization operated previously;
    (c) The date on which the organization was founded;
    (d) The title of the position held by the individual within the 
organization, and the duties of said position;
    (e) The method by which the individual, or the person to whom he or 
she is regularly assigned or by whom he or she is regularly employed, 
was authorized to represent members of the organization in negotiating 
with their employers, the date on which the individual was so 
authorized, and the time period covered by said authorization;
    (f) The purpose or business of the organization as reflected by its 
constitution and by-laws;
    (g) The extent to which the organization is, and has been recognized 
as, representative of crafts or classes of employees in the railroad 
industry;

[[Page 135]]

    (h) The extent to which the purposes and businesses of the 
organization are and have been to promote the interests of employees in 
the railroad industry as indicated by:
    (1) The specific employee group(s) represented; and
    (2) The proportion of members that are employed by railroad 
employers in relation to those members that are employed by non-railroad 
employers;
    (i) Whether the organization has been certified by the National 
Mediation Board as a representative of any class of employees of any 
company;
    (j) If the organization has not been certified as representative of 
any class of employees, the manner and method by which the organization 
determined that it was the duly authorized representative of such 
employees;
    (k) Whether the organization participates or is authorized to 
participate in the selection of labor members of the National Railroad 
Adjustment Board; and
    (l) Whether the organization was assisted by any carrier by 
railroad, express company, or sleeping car company, directly or 
indirectly, in its formation, in influencing employees to join the 
organization, financially, or in the collection of dues, fees, 
assessments, or any contributions payable to the organization.



Sec. 205.4  Claiming status as an employee representative.

    An individual who claims status as an employee representative shall 
file a report in accordance with Sec. 209.10 of this chapter.

(Approved by the Office of Management and Budget under control number 
3220-0014)



Sec. 205.5  Reports of an employee representative.

    An annual report of creditable compensation shall be made by an 
employee representative in accordance with Sec. 209.10 of this chapter.

(Approved by the Office of Management and Budget under control number 
3220-0014)



Sec. 205.6  Service of an employee representative.

    Service rendered as an employee representative is creditable in the 
same manner and to the same extent as though the organization by which 
the employee representative was employed were an employer under the 
Railroad Retirement Act. (Creditable railroad service is discussed under 
part 210 of the Board's regulations.)



Sec. 205.7  Termination of employee representative status.

    The employee representative status of any individual shall terminate 
whenever the individual or the organization by whom he or she is 
employed loses any of the characteristics essential to the existence of 
employee representative status.



PART 209--RAILROAD EMPLOYERS' REPORTS AND RESPONSIBILITIES--Table of Contents




Sec.
209.1  General.
209.2  Duty to furnish information and records.
209.3  Social security number required.
209.4  Method of filing.
209.5  Information regarding change in status.
209.6  Employers' notice of death of employees.
209.7  Employers' supplemental reports of service.
209.8  Employers' annual reports of creditable service and compensation.
209.9  Employers' adjustment reports.
209.10  Terminated employers' reports.
209.11  Employee representatives' reports.
209.12  Certificates of service months and compensation.
209.13  Employers' gross earnings reports.
209.14  Report of separation allowances subject to tier II taxation.
209.15  Compensation reportable when paid.
209.16  Disposal of payroll records.
209.17  Use of payroll records as returns of compensation.

    Authority: 45 U.S.C. 231f.

    Source: 49 FR 46729, Nov. 28, 1984, unless otherwise noted.



Sec. 209.1  General.

    Benefits under the Railroad Retirement Act are based in part upon an 
individual's years of service and amount of compensation credited to the 
individual under the Act. It is the duty of the Board to gather, keep 
and compile such records and data as may be necessary to assure proper 
administration of the Act. This part sets forth the types of reports 
employers are required

[[Page 136]]

to make to the Board and states the penalties that the Board may impose 
upon employers and employees who fail or refuse to make required 
reports.



Sec. 209.2  Duty to furnish information and records.

    In the administration of the Railroad Retirement Act of 1974, the 
Board may require any employer or employee to furnish or submit any 
information, records, contracts, documents, reports or other materials 
within their possession or control, that, in the judgment of the Board, 
may have any bearing upon:
    (a) The employer status of any individual, person or company,
    (b) The employee or pension status of any individual,
    (c) The amount and creditability of service and compensation, or
    (d) Any other matter arising which involves the administration of 
the Railroad Retirement Act. Any person who knowingly fails or refuses 
to make any report or furnish any information required by the Board, may 
be punished by a fine of not more than $10,000 or by imprisonment not 
exceeding one year, or both.

(Approved by the Office of Management and Budget under control number 
3220-0089)

[49 FR 46729, Nov. 2, 1984, as amended at 52 FR 11016, Apr. 6, 1987]



Sec. 209.3  Social security number required.

    Each employer shall furnish to the Board a social security number 
for each employee for whom any report is submitted to the Board. 
Employers are encouraged to validate any social security number provided 
under this section.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[63 FR 32613, June 15, 1998]



Sec. 209.4  Method of filing.

    Any report or information required to be furnished under this part 
shall be prepared in accordance with instructions of the Board and shall 
be filed with the Board electronically, which includes the use of 
magnetic tape, computer diskette, electronic data interchange, or on 
such form as prescribed by the Board. If not filed electronically, 
reports shall be transmitted by facsimile or mailed directly to the 
Board. Any report which includes, or should include, information for 250 
or more employees must be filed electronically, as described in this 
section.

[63 FR 32613, June 15, 1998]



Sec. 209.5  Information regarding change in status.

    It is the duty of each employer to promptly notify the Board of:
    (a) Any change in the employer's operations, ownership or control of 
the employer which affects its status as an employer under the Railroad 
Retirement Act and the Railroad Unemployment Insurance Act;
    (b) Any change in the ownership or control by the employer in any 
company which may affect the status of the company as an employer under 
the Railroad Retirement Act or Railroad Unemployment Insurance Act; and
    (c) The gain of ownership or control by the employer of any company 
which may give that company status as an employer under the Railroad 
Retirement Act and Railroad Unemployment Insurance Act. The notice must 
fully advise the Board of the type of change in ownership, the date of 
the change, the number of employees affected by the change and any other 
information pertinent to the change.

[49 FR 46729, Nov. 28, 1984. Redesignated at 63 FR 32613, June 15, 1998]



Sec. 209.6  Employers' notice of death of employees.

    Each employer shall notify the Board immediately of the death of an 
employee who, prior to the employee's death, performed compensated 
service which has not been reported to the Board.

(Approved by the Office of Management and Budget under control number 
3220-0005)

[63 FR 32613, June 15, 1998]



Sec. 209.7  Employers' supplemental reports of service.

    Each employer shall furnish the Board a report of the current year 
service of each employee who ceases work for the purpose of retiring 
under the

[[Page 137]]

provisions of the Railroad Retirement Act.

(Approved by the Office of Management and Budget under control number 
3220-0005)

[63 FR 32613, June 15, 1998]



Sec. 209.8  Employers' annual reports of creditable service and compensation.

    Each year, on or before the last day of February, each employer is 
required to make an annual report of the creditable service and 
compensation (including a report that there is no compensation or 
service to report) of employees who performed compensated service in the 
preceding calendar year. The annual report shall include service and 
compensation previously furnished in supplemental reports and notices of 
death.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[63 FR 32613, June 15, 1998]



Sec. 209.9  Employers' adjustment reports.

    (a) The Board may request employers to submit adjustments to correct 
employee accounts when:
    (1) Errors are detected in processing employers' annual report;
    (2) An employee shows that the amount of service or compensation 
reported by the employer to the employee's account was not correct; or
    (3) An employee shows that he or she should have been credited with 
service and compensation for a period for which the employer reported no 
service and compensation.
    (b) Employers may submit adjustment reports to:
    (1) Correct service and compensation previously reported; and
    (2) Report service and compensation that was omittted from a 
previous report.
    (c) Employers submitting adjustment reports covering pay for time 
lost as an employee shall report this compensation as provided for in 
Sec. 211.3 of this chapter. Adjustment reports may be submitted to the 
Board each month.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[49 FR 46729, Nov. 28, 1984. Redesignated and amended at 63 FR 32613, 
June 15, 1998]



Sec. 209.10  Terminated employers' reports.

    When an employer's status as an employer is terminated, a final 
report of creditable service and compensation shall be made. The final 
report shall be submitted to the Board on or before the last day of the 
month following the final month for which there was compensated service. 
The report shall be completed as prescribed in Sec. 209.8(a) of this 
part and shall be marked Final Compensation Report.

(Approved by the Office of Management and Budget under control number 
3220-0008)

[49 FR 46729, Nov. 28, 1984. Redesignated and amended at 63 FR 32613, 
June 15, 1998]



Sec. 209.11  Employee representatives' reports.

    An individual claiming status as an employee representative shall 
describe his or her duties as an employee representative on the form 
prescribed by the Board. The Board shall determine whether the 
individual claiming to be an employee representative meets the 
requirements for such a status. If the individual is determined to be an 
employee representative, he or she is required to make an annual report 
of creditable compensation as provided for in Sec. 209.8 of this part. 
If an employee representative's status is terminated, the last report of 
service and compensation shall be marked Final Compensation Report.

(Approved by the Office of Management and Budget under control number 
3220-0014)

[63 FR 32613, June 15, 1998]



Sec. 209.12  Certificates of service months and compensation.

    (a) Each year the Board shall provide each employee who performed 
compensated service in the preceding calendar year a certificate of 
service months and compensation. This certificate is the employee's 
record of the service and compensation credited to his or her account at 
the Board. An employee who for any reason does not receive a certificate 
may obtain one from the nearest Board district office or may write the 
Board for one.

[[Page 138]]

    (b) By April 1 of each year each employer shall provide the Board 
the current address of each employee for whom it had reported 
compensation. This requirement shall not apply in the case of an 
employee for whom the employer had previously provided an address.

(Approved by the Office of Management and Budget under control number 
3220-0194)

[63 FR 32613, June 15, 1998]



Sec. 209.13  Employers' gross earnings reports.

    (a) Each employer is required to report the gross earnings of a one-
percent sample group of railroad employees. The gross earnings sample is 
based on the earnings of employees whose social security numbers end 
with the digits 30. This report is used to determine:
    (1) Tax and benefit amounts involved in the Financial Interchange 
with the Social Security Administration and the Health Care Financing 
Administration; and
    (2) Estimated tax income accruing to the railroad retirement system 
in future periods.
    (b) Employers shall submit reports annually for employees in the 
gross earnings sample. Such reports shall include the employee's gross 
annual earnings, which includes all compensation taxable under the 
hospital insurance portion of the tier I tax rate. Employers with 5,000 
or more employees shall provide a monthly or quarterly breakdown of the 
year's earnings. Employers with fewer than 5,000 employees may submit an 
annual amount only, although a monthly or quarterly breakdown is 
preferable. Gross earnings are to be counted for the same time period as 
used in determining the employer's annual report of creditable 
compensation. The reports are to be prepared in accordance with 
prescribed instructions and filed in accordance with Sec. 209.4 of this 
part.

(Approved by the Office of Management and Budget under control number 
3220-0132)

[49 FR 46729, Nov. 28, 1984, as amended at 55 FR 26430, June 28, 1990; 
57 FR 4365, Feb. 5, 1992; 59 FR 2292, Jan. 14, 1994. Redesignated and 
amended at 63 FR 32613, 32614, June 15, 1998]



Sec. 209.14  Report of separation allowances subject to tier II taxation.

    For any employee who is paid a separation payment, the employer must 
file a report of the amount of the payment. This report shall be 
submitted to the Board on or before the last day of the month following 
the end of the calendar quarter in which payment is made. The report is 
to be prepared in accordance with prescribed instructions and filed in 
accordance with Sec. 209.4 of this part.

(Approved by the Office of Management and Budget under control number 
3220-0173)

[63 FR 32614, June 15, 1998]



Sec. 209.15  Compensation reportable when paid.

    (a) General. In preparing a report required under this part, an 
employer may report compensation in the report required for the year in 
which the compensation was paid even though such compensation was earned 
by the employee in a previous year. If compensation is reported with 
respect to the year in which it was paid, it shall be credited by the 
Board to the employee in such year unless within the four year period 
provided in Sec. 211.15 of this chapter the employee requests that such 
compensation be credited to the year in which it was earned. If the 
employee makes such a request, and the Board determines that the 
compensation should be credited to the year in which it was earned, the 
reporting employer must file an adjustment report as required by 
Sec. 209.9 of this part which reports such compensation in the year in 
which it was earned. The employee may revoke his or her request anytime 
prior to the filing of the adjustment report. Upon the Board's receipt 
of the adjustment report, the request becomes irrevocable.
    (b) Pay for time lost. Compensation which is pay for time lost, as 
provided in Sec. 211.3 of this chapter, shall be reported with respect 
to the period in which the time and compensation were lost. For example, 
if an employee is off work because of an on-the-job injury for a period 
of months in a given year and in a later year receives a payment

[[Page 139]]

from his or her employer to compensate for wages lost during the period 
of absence, the employer must, by way of adjustment provided for in 
Sec. 209.9 of this part, report the compensation with respect to the 
year in which the time and compensation were lost.
    (c) Separation allowance or severance pay. A separation allowance or 
severance payment shall be reported in accordance with Sec. 209.14 of 
this part.
    (d) Miscellaneous pay. Miscellaneous pay, as defined in Sec. 211.11 
of this chapter, shall be reported in the year paid and reported on the 
annual report of compensation as provided for in Sec. 209.8 of this 
part.
    (e) Vacation pay. Vacation pay may be reported in accordance with 
this section except that any payments made in the year following the 
year in which the employee resigns or is discharged shall be reported by 
way of adjustment under Sec. 209.9 of this part as paid in the year of 
resignation or discharge.

[58 FR 45250, Aug. 27, 1993, as amended at 63 FR 32614, June 15, 1998]



Sec. 209.16  Disposal of payroll records.

    Employers may dispose of payroll records for periods subsequent to 
1936, provided that the payroll records are more than five years old and 
that there is no dispute pending pertaining to the compensation reported 
for the period of those records.

[61 FR 31395, June 20, 1996]



Sec. 209.17  Use of payroll records as returns of compensation.

    Payroll records of employers which have permanently ceased 
operations may be accepted in lieu of prescribed reports provided that 
there is no official of the employer available to prepare and certify to 
the accuracy of such reports and, provided further that any employer and 
employee tax liability incurred under the Railroad Retirement Tax Act 
has been discharged.

[61 FR 31395, June 20, 1996]



PART 210--CREDITABLE RAILROAD SERVICE--Table of Contents




Sec.
210.1  General.
210.2  Definition of service.
210.3  Month of service.
210.4  Year of service.
210.5  Creditability of service.
210.6  Service credited for creditable military service.
210.7  Verification of service claimed.

    Authority: 45 U.S.C. 231f.



Sec. 210.1  General.

    An individual's entitlement to benefits and the amount of benefits 
payable under the Railroad Retirement Act are determined based, in part, 
on the individual's years of service. This part defines what the term 
service means under the Railroad Retirement Act and sets forth what 
types of service are creditable under that Act.

[49 FR 46731, Nov. 28, 1984]



Sec. 210.2  Definition of service.

    Service means a period of time for which an employee receives 
payment from a railroad employer for the performance of work; or a 
period of time for which an employee receives compensation which is paid 
for time lost as an employee; or a period of time credited to an 
employee for creditable military service as defined in part 212 of this 
chapter. Service shall also include deemed months of service as provided 
under Sec. 210.3(b) of this chapter and any month in which an employee 
is credited with compensation under Sec. 211.12 of this chapter based on 
benefits paid under title VII of the Regional Rail Reorganization Act of 
1973.

[53 FR 17182, May 16, 1988]



Sec. 210.3  Month of service.

    (a) Reported. A reported month of service is any calendar month or 
any part of a calendar month for which an employee receives compensation 
for services performed for an employer; or receives pay for time lost as 
an employee; or is credited with compensation for a period of creditable 
military

[[Page 140]]

service; or is credited with compensation under Sec. 211.12 of this 
chapter based on benefits paid under title VII of the Regional Rail 
Reorganization Act of 1973.
    (b) Deemed. A deemed month of service is any additional month of 
service credited to an employee subject to paragraphs (b)(1) and (2) of 
this section.
    (1) An employee who is credited with less than twelve reported 
months of service for a calendar year after 1984 may be ``deemed'' to 
have performed service for compensation in additional months, not to 
exceed twelve, providing:
    (i) The employee's compensation for the calendar year in question 
exceeds an amont calculated by multiplying the number of reported months 
credited for that year by an amount equal to one-twelfth of the current 
annual maximum for non-tier I components as defined in Sec. 211.15 of 
this chapter; and
    (ii) The employee maintains an employment relation to one or more 
employers or serves as an employee representative in the month or months 
to be deemed. For purposes of this section, employment relation has the 
same meaning as defined in part 204 of this chapter, disregarding the 
restrictions involving the establishment of such a relationship as of 
August 29, 1935. Employee representative has the same meaning as defined 
in part 205 of this chapter.
    (2) Employees satisfying the conditions in both paragraphs (b)(1)(i) 
and (b)(1)(ii) of this section shall have their months of service for a 
calendar year calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TC14NO91.103


The quotient obtained using this formula equals the employee's total 
months of service, reported and deemed, for the calendar year. Any 
fraction or remainder in the quotient is credited as an additional month 
of service.
    (3) Examples. The provisions of paragraphs (b)(1) and (2) of this 
section may be illustrated by the following examples.

    Example (1): Employee B worked in the railroad industry in 1985 and 
was credited with nine reported months of service (January through 
September) and non-tier I compensation of $20,000. The 1985 annual 
maximum for non-tier I compensation is $29,700. B maintained an 
employment relation in the three months he was not employed in 1985. The 
following computations are necessary to determine if B has sufficient 
non-tier I compensation to be credited with deemed months of service.

(1) Enter the annual maximum for non-tier I compensation for the 
calendar year....................................................$29,700
(2) Divide line (1) by 12
  $29,70012...............................................$2,475
(3) Enter the employee's reported months of service for the calendar 
year...................................................................9
(4) Multiply line (2) by line (3) $2,475 x 9.....................$22,275
(5) Enter the employee's non-tier I compensation for the calendar year 
                                                                 $20,000
(6) Subtract line (4) from line (5). Enter the result (but not less than 
zero). This is the employee's excess non-tier I compensation for the 
calendar year.
  $20,000-$22,275......................................................0

    a. If line (6) is zero, the employee does not have sufficient non-
tier I compensation to be credited with deemed months of service.
    b. If line (6) is greater than zero, the employee has sufficient 
non-tier I compensation to be credited with deemed months of service.
    Since the amount on line (6) is zero, employee B does not have 
enough non-tier I compensation to be credited with deemed months of 
service. B is credited with only nine reported months of service for the 
year.

    Example (2): Assume the same facts as in example (1), except that 
employee B was credited with non-tier I compensation of $25,000 for 
1985. The following computations are necessary to determine if B has 
sufficient non-tier I compensation to be credited with deemed months of 
service.

(1) Enter the annual maximum for non-tier I compensation for the 
calendar year....................................................$29,700
(2) Divide line (1) by 12

[[Page 141]]

  $29,70012...............................................$2,475
(3) Enter the employee's reported months of service for the calendar 
year...................................................................9
(4) Multiply line (2) by line (3) $2,475 x 9.....................$22,275
(5) Enter the employee's non-tier I compensation for the calendar year 
                                                                 $25,000
(6) Subtract line (4) from line (5). Enter the result (but not less than 
zero). This is the employee's excess non-tier I compensation for the 
calendar year.
  $25,000-$22,275.................................................$2,725

    a. If line (6) is zero, the employee does not have sufficient non-
tier I compensation to be credited with deemed months of service.
    b. If line (6) is greater than zero, the employee has sufficient 
non-tier I compensation to be credited with deemed months of service.
    Since the amount on line (6) is greater than zero, employee B has 
enought non-tier I compensation to be credited with deemed months of 
service. B now satisfies all the requirements for deeming, therefore his 
months of service for the calendar year are calculated using the formula 
in Sec. 210.3(b)(2).
[GRAPHIC] [TIFF OMITTED] TC14NO91.104

[GRAPHIC] [TIFF OMITTED] TC14NO91.105

[GRAPHIC] [TIFF OMITTED] TC14NO91.106


(3) Months of service = 25,0002,475 or 10.10
(4) Round the result in line (3) to the next higher whole number. This 
is the employee's total months of service for the calendar year.
  10.10 becomes.......................................................11

Employee B is credited with 11 months of service for 1985; nine reported 
months (January through September) and two deemed months (October and 
November).

[53 FR 17182, May 16, 1988]



Sec. 210.4  Year of service.

    (a) A year of service is twelve months of reported or deemed 
service, consecutive or not consecutive. A fraction of a year of service 
is taken at its actual value.
    (b) The term years of service means the total number of years an 
employee is credited with service as defined in Sec. 210.2 of this part.

[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17183, May 16, 1988]



Sec. 210.5  Creditability of service.

    (a) Service before January 1, 1937. (1) Service performed before 
January 1, 1937, is called prior service. Prior service is creditable 
under the Railroad Retirement Act if the employee had an employment 
relation with a railroad employer on August 29, 1935. Prior service may 
be combined with creditable service performed after December 31, 1936, 
to make the employee's total years of service equal, but not exceed, 30 
years (360 months).
    (2) An employee is considered to have an employment relation on 
August 29, 1935, if:
    (i) The employee was on that date in active railroad service for an 
employer; or
    (ii) The employee was on that date on a leave of absence expressly 
granted by the employer or the employer's authorized representative, but 
only if such leave of absence was established to the satisfaction of the 
Board before July 1947; or
    (iii) The employee had 6 months of active railroad service for an 
employer during the period August 29, 1935, through December 31, 1945; 
or
    (iv) The employee was not in the service of an employer by reason of 
a mental or physical disability from which the employee was continuously 
disabled until the employee attained age 65 or until August 1945; or

[[Page 142]]

    (v) Solely for the reason stated in paragraph (a)(2)(iv) of this 
section the employee was not recalled to active service before August 
1945; or
    (vi) If the employee was recalled, the employee was unable to 
perform 6 months of service during the period August 29, 1935, through 
December 31, 1945, solely for the reason stated in paragraph (a)(2)(iv) 
of this section.
    (b) Service after December 31, 1936. All service performed after 
December 31, 1936, is creditable. If an employee has service both before 
January 1, 1937, and after December 31, 1936, all service after December 
31, 1936, is credited first; if this service totals less than 30 years 
(360 months), then the service before January 1, 1937, is included but 
only up to the amount sufficient to make the total years of service 
equal 30. Where the years of service include only part of the service 
performed before January 1, 1937, the part included is taken in reverse 
order beginning with the last calendar month of the service.
    (c) Service after December 31, 1936, to a local lodge or division. 
Services performed for a local lodge or division of a railway labor 
organization is creditable if the employee is credited with compensation 
as defined in Sec. 211.2 of this chapter.
    (d) Service based on time lost. Any month or any part of a month 
during which an employee performed no active service but received pay 
for time lost as an employee is counted as a month of service. Service 
for time lost as an employee shall be credited as provided for in 
Sec. 211.3 of this chapter.
    (e) Place of performance of service. (1) Service performed for an 
employer who conducts the principal part of its business with the United 
States is creditable. However, service performed for an employer who 
conducts the principal part of its business outside the United States is 
creditable only when the service is performed in the United States. If 
an employer, other than a local lodge or division or a general committee 
of a railway labor organization, does not conduct the principal part of 
its business within the United States, the service performed outside the 
United States for that employer is not creditable.
    (2) Service performed outside the United States by an employee who 
is not a citizen or resident of the United States is not creditable if 
the employer is required under the laws of that place to hire, in whole 
or in part, only citizens or residents of that place.
    (f) Service as employee representative. Service performed as an 
employee representative is creditable in the same manner and to the same 
extent as service performed for an employer.
    (g) Service performed after the beginning date of an annuity. 
Service performed after the beginning date of an annuity shall be used 
in the annuity recomputation.

[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988]



Sec. 210.6  Service credited for creditable military service.

    Any calendar month in which an employee performed creditable 
military service, as defined in part 212 of this chapter, shall be 
counted as a month of service and shall be included in the employee's 
years of service, as provided for in Sec. 210.5, provided that the 
employee has not previously been credited with reported or deemed 
service for an employer for the same month(s).

[53 FR 17184, May 16, 1988]



Sec. 210.7  Verification of service claimed.

    Service claimed by an employee, which is not credited in the records 
of the Board, must be verified to the satisfaction of the Board before 
it may be credited. Verification of the Service claimed shall be as 
follows:
    (a) Service claimed will be verified from the payroll or other 
detailed records of the employer.
    (b) If the payroll or other detailed records are incomplete or 
missing, the service claimed and not established by these records will 
be verified from the personnel records of the employer.
    (c) If the payroll, personnel and detailed records are incomplete or 
missing, the service claimed and not established by these records will 
be verified from any other books and records of the employer.
    (d) If the employer's records do not establish the service claimed, 
the employee may submit affidavits and other

[[Page 143]]

evidence in support of the service claimed in either of the following 
instances:
    (1) When there are no employer records available to show whether or 
not the service claimed was performed; or
    (2) When there are employer records available which do not verify 
the service claimed and do not establish that the service claimed was 
not performed.
    (e) When service is verified as to over-all dates, but is not 
supported in detail by employer records, and when there are no employer 
records showing in detail absences from service, a deduction shall be 
made to cover an average amount of the absences. The deduction shall be 
the absences shown by the applicant or 5 percent of the total period in 
question, whichever is greater. However, where the employee submits 
detailed records of the service claimed, properly identified and 
established as having been made at the time the employee performed the 
service for which detailed records of the employer are not available, 
full credit may be allowed for the service as may be verified from the 
records. Also, the employee may be permitted to establish in any other 
manner satisfactory to the Board the actual amount of his or her 
absences.
    (f) For the purpose of verifying service before 1937, employers 
shall preserve through 1986, in accessible form, the original records of 
the service and compensation.
    (g) For the purpose of verifying service after 1936, employers shall 
preserve in accessible form the original records of service and 
compensation for a period of five calendar years after the due date of 
the report.

(Approved by the Office of Management and Budget under control numbers 
3220-0003 and 3220-0008)

[49 FR 46731, Nov. 28, 1984, as amended at 52 FR 11016, Apr. 6, 1987]



PART 211--CREDITABLE RAILROAD COMPENSATION--Table of Contents




Sec.
211.1  General.
211.2  Definition of compensation.
211.3  Compensation paid for time lost.
211.4  Vacation pay.
211.5  Employee representative compensation.
211.6  Compensation based on waiver or refund of organization dues.
211.7  Compensation credited for creditable military service.
211.8  Displacement allowance.
211.9  Dismissal allowance.
211.10  Separation allowance or severance pay.
211.11  Miscellaneous pay.
211.12  Compensation credited for title VII benefits.
211.13  Payments made after death.
211.14  Maximum creditable compensation.
211.15  Verification of compensation claimed.
211.16  Finality of records of compensation.

    Authority: 45 U.S.C. 231f.

    Source: 49 FR 46732, Nov. 28, 1984, unless otherwise noted.



Sec. 211.1  General.

    Benefits under the Railroad Retirement Act are based in part on the 
individual's years of service and amount of compensation credited to the 
individual under the Act. This part defines what the term compensation 
means and sets forth the criteria applied in determining what payments 
are creditable as compensation under the Railroad Retirement Act.



Sec. 211.2  Definition of compensation.

    (a) The term compensation means any form of payment made to an 
individual for services rendered as an employee for an employer; 
services performed as an employee representative; and any separation or 
subsistence allowance paid under any benefit schedule provided in 
conformance with title VII of the Regional Rail Reorganization Act of 
1973 and any termination allowance paid under section 702 of that Act. 
Compensation may be paid as money, a commodity, a service or a 
privilege. However, if an employee is to be paid in any form other than 
money, the employer and employee must agree before the service is 
performed upon the following:
    (1) The value of the commodity, service or privilege; and
    (2) That the amount agreed upon to be paid may be paid in the form 
of the commodity, service or privilege.
    (b) Compensation includes, but is not limited to, the following:
    (1) Salary, wages and bonuses;

[[Page 144]]

    (2) Pay for time lost as an employee;
    (3) Cash tips of $20 or more received in a calendar month;
    (4) Vacation pay;
    (5) Military pay as determined in Sec. 211.7 of this part;
    (6) Displacement allowances as provided for in Sec. 211.8 of this 
part;
    (7) Dismissal allowances as provided for in Sec. 211.9 of this part;
    (8) Separation allowances as provided for in Sec. 211.10 of this 
part;
    (9) Miscellaneous pay as provided for in Sec. 211.11 of this part;
    (10) Payments made under title VII of the Regional Rail 
Reorganization Act of 1973 as provided for in Sec. 211.12 of this part.
    (11) Payments paid to an employee or employee representative which 
are subject to tax under section 3201(a) or 3211(a) of the Internal 
Revenue Code of 1954 are creditable as compensation under the Railroad 
Retirement Act for purposes of computation of benefits under sections 
3(a)(1), 3(f)(3), 4(a)(1) and 4(f)(1).
    (12) Voluntary payments of any tax by an employer, without deducting 
such tax from the employee's salary.
    (13) Payments made by an employer with respect to a deceased 
employee except as provided for in Sec. 211.13 of this part.
    (c) Compensation does not include:
    (1) Tips, except as provided in paragraph (b)(3) of this section;
    (2) Payments for services performed by a nonresident alien for the 
period the individual is temporarily present in the United States as a 
nonimmigrant under subparagraph (F) or (J) of section 1101(a)(15) of 
title 8, U.S.C. and which is performed to carry out the purpose 
specified in subparagraph (F) or (J), as the case may be;
    (3) Remuneration paid in certain cases, as described below, for 
services performed for a local lodge or division of a railway labor 
organization.
    (i) Remuneration for services rendered for a local lodge or division 
of a railway labor organization which was earned after 1936 and prior to 
April 1, 1940, shall not be creditable as compensation in a month unless 
taxes with respect to such remuneration were paid under the Railroad 
Retirement Tax Act prior to July 1, 1940.
    (ii) Remuneration for services rendered for a local lodge or 
division of a railway labor organization which was earned after March 
31, 1940, and prior to January 1, 1975, shall not be creditable as 
compensation in a month if the amount of such remuneration earned in the 
month is less than $3.00.
    (iii) Remuneration for services rendered for a local lodge or 
division of a railway labor organization which was earned after December 
31, 1974, shall not be creditable as compensation in a month if the 
amount of such remuneration earned in the month is less than $25.00.
    (4) Payments for service as a delegate to a national or 
international convention of a railway-labor-organization employer if the 
individual rendering the service has not previously rendered service, 
other than as a delegate, which may be included in the individual's 
years of service;
    (5) Except as provided in Sec. 211.2(b)(11), the amount of any 
payment (including any amount paid by an employer for insurance or 
annuities, or into a fund, to provide for any such payment) made to, or 
on behalf of, an employee or any of the employee's dependents under a 
plan or system established by an employer which makes provisions for 
employees generally (or for employees generally and their dependents), 
or for a class or classes of employees (or for a class or classes of 
employees and their dependents), on account of sickness or accident 
disability, or medical, or hospitalization expenses in connection with 
sickness or accident disability; and
    (6) Any amount paid specifically--either as an advance, as 
reimbursement or allowance--for traveling or other bona fide and 
necessary expenses incurred, or reasonably expected to be incurred in 
the business of the employer, provided the payment is identified by the 
employer either by a separate payment or by specifically indicating the 
separate amounts where both wages and expense reimbursement or allowance 
are combined in a single payment.

[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988; 58 
FR 45251, Aug. 27, 1993]

[[Page 145]]



Sec. 211.3  Compensation paid for time lost.

    (a) A payment made to an employee for a period during which the 
employee was absent from the active service of the employer is 
considered to be pay for time lost and is, therefore, creditable 
compensation. Pay for time lost as an employee includes:
    (1) Pay received for a certain period of time due to personal 
injury, or
    (2) Pay received for loss of earnings for a certain period of time, 
resulting from the employee being placed in a position or occupation 
paying less money. In reporting compensation which represents pay for 
time lost, employers shall allocate the amount paid to the employee to 
the month(s) in which the time was actually lost. The entire amount of 
any payment made to an employee for personal injury is considered pay 
for time lost unless, at the time of payment, the employer states that a 
particular amount of the payment was for reasons other than pay for time 
lost.
    (b) Where pay for time lost is allocated to the month(s) in which 
the time was actually lost, the Board will accept the allocation made by 
the parties involved if it relates to the employee's normal monthly pay. 
A reasonable relationship to an employee's normal monthly pay is 
ordinarily no less than ten times the employee's daily pay rate.



Sec. 211.4  Vacation pay.

    Payments made to an employee with respect to vacation or holidays 
shall be considered creditable compensation whether or not the employee 
takes the vacation or holiday.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.5  Employee representative compensation.

    All payments made by a railway labor organization to an individual 
who is an employee representative as a result of the position or office 
he occupies with such organization are creditable as compensation, 
including payments made for services not connected with the 
representation of employees, except that payments in excess of the 
annual maximum amount will not be credited.

[53 FR 17184, May 16, 1988]



Sec. 211.6  Compensation based on waiver or refund of organization dues.

    A waiver or refund or organization dues which was based solely on 
consideration for membership in the organization is considered 
creditable compensation if there is proof that the waiver or refund was 
intended to be, and was accepted as, a dismissal of an obligation of the 
organization to compensate the employee for services rendered.

[53 FR 17184, May 16, 1988]



Sec. 211.7  Compensation credited for creditable military service.

    In determining the creditable compensation of an employee, the 
following amounts shall be credited for each month of military service, 
provided the employee's combined monthly railroad and military 
compensation does not exceed the maximum creditable amount:
    (a) $160 for each calendar month before 1968;
    (b) $260 for each calendar month after 1967 and before 1975;
    (c) For years after 1974, the actual military earnings reported as 
wages under the Social Security Act.

[53 FR 17184, May 16, 1988]



Sec. 211.8  Displacement allowance.

    An allowance paid to an employee because he has been displaced to a 
lower paying position is creditable compensation.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.9  Dismissal allowance.

    Dismissal allowances paid to an employee under a protective labor 
agreement that covers the amounts paid for specific periods of time are 
creditable as compensation under the Railroad Retirement Act, provided 
the employee has not severed his or her employee-employer relationship.

[53 FR 17184, May 16, 1988, as amended at 58 FR 45251, Aug. 27, 1993]

[[Page 146]]



Sec. 211.10  Separation allowance or severance pay.

    Separation or severance payments are creditable compensation except 
that no part of such payment shall be considered creditable compensation 
to any period after the employee has severed his or her employer-
employee relationship except as provided for in Sec. 211.11 of this 
part.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.11  Miscellaneous pay.

    Any payment made to an employee by an employer which is excluded 
from compensation under the Railroad Retirement Act, but which is 
subject to taxes under the Railroad Retirement Tax Act, shall be 
considered compensation for purposes of this part but only for the 
limited purpose of computing the portion of the annuity computed under 
section 3(a), 4(a), or 4(f) of the Railroad Retirement Act (commonly 
called the tier I component).

[58 FR 45251, Aug. 27, 1993]



Sec. 211.12  Compensation credited for title VII benefits.

    Payments made to an employee under title VII of the Regional Rail 
Reorganization Act of 1973 are creditable as compensation only for the 
month in which the employee first filed an application for benefits 
under that Act. The compensation to be credited cannot exceed the 
monthly creditable amounts defined in Sec. 211.13(a) of this part for 
compensation earned prior to 1985 or the annual creditable amount 
defined in Sec. 211.13(b) of this part for compensation earned after 
1984.

[53 FR 17185, May 16, 1988]



Sec. 211.13  Payments made after death.

    Payments made by an employer with respect to a deceased employee but 
paid after the calendar year of the employee's death to the employee's 
survivors or estate are not creditable compensation.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.14  Maximum creditable compensation.

    Maximum creditable compensation for calendar years after 1984 is the 
maximum annual taxable wage base defined in section 3231(e)(2)(B) of the 
Internal Revenue Code of 1986. In November of each calendar year the 
Director of Research and Employment Accounts shall notify each employer 
of the amount of maximum creditable compensation applicable to the 
following calendar year.

[58 FR 45251, Aug. 27, 1993]



Sec. 211.15  Verification of compensation claimed.

    Compensation claimed by an employee, which is not credited in the 
records of the Board, must be verified to the satisfaction of the Board 
before it may be credited. An employee's claim to compensation not 
credited shall be processed as follows:
    (a) If the compensation claimed is in excess of the maximum 
creditable amounts defined in Sec. 211.13 of this part, the Director of 
the Bureau of Research and Employment Accounts shall inform the employee 
that the compensation claimed is not creditable.
    (b) If the compensation is claimed within four years from the date 
the compensation was required to be reported to the Board as prescribed 
in Sec. 209.6 of this chapter, the Director of Research and Employment 
Accounts shall contact the employer requesting a review of their 
records, and if the employee's claim is correct, the employer will 
submit an adjustment crediting the employee with the compensation 
claimed. If the employer states that the employee's claim is incorrect, 
the employee will be requested to submit check stubs to show railroad 
retirement taxes withheld from the compensation claimed. Upon receipt of 
the check stubs, the proof will be sent to the employer along with a 
request for the employer to submit an adjustment crediting the employee 
with the compensation claimed.

[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17185, May 16, 1988. 
Redesignated at 58 FR 45251, Aug. 27, 1993]



Sec. 211.16  Finality of records of compensation.

    (a) Time limit for corrections to records of compensation. The 
Board's record of the compensation reported as paid to an employee for a 
given period shall be

[[Page 147]]

conclusive as to amount, or if no compensation was reported for such 
period, then as to the employee's having received no compensation for 
such period, unless the error in the amount of compensation or the 
failure to make return of the compensation is called to the attention of 
the Board within four years after the date on which the compensation was 
required to be reported to the Board as provided for in Sec. 209.6 of 
this chapter.
    (b) Correction after 4 years. (1) The Board may correct a report of 
compensation after the time limit set forth in paragraph (a) of this 
section where the compensation was posted or not posted as the result of 
fraud on the part of the employer.
    (2) Subject to paragraph (c) of this section, the Board may correct 
a report of compensation after the time limit set forth in paragraph (a) 
of this section for one of the following reasons:
    (i) Where the compensation was posted for the wrong person or the 
wrong period;
    (ii) Where the earnings were erroneously reported to the Social 
Security Administration in the good faith belief by the employer or 
employee that such earnings were not covered under the Railroad 
Retirement Act and there is a final decision of the Board under part 259 
of this chapter that such employer or employee was covered under the 
Railroad Retirement Act during the period in which the earnings were 
paid;
    (iii) Where a determination pertaining to the coverage under the 
Railroad Retirement Act of an individual, partnership, or company as an 
employer, is retroactive; or
    (iv) Where a record of compensation could not otherwise be corrected 
under this part and where in the judgment of the three-member Board that 
heads the Railroad Retirement Board failure to make a correction would 
be inequitable.
    (c) Limitation on crediting service. (1) Except as provided in 
paragraph (b)(1) of this section, no employee may be credited with 
service months or tier II compensation beyond the four year period 
referred to in paragraph (a) of this section unless the employee 
establishes to the satisfaction of the Board that all employment taxes 
imposed by sections 3201, 3211, and 3221 of title 26 of the Internal 
Revenue Code have been paid with respect to the compensation and 
service.
    (2) The limitation on the creditability of service months and tier 
II compensation in paragraph (c)(1) of this section shall not affect the 
creditability, for purposes of computing the tier I component of a 
railroad retirement annuity, of compensation payments with respect to 
which taxes have been paid under either the Railroad Retirement Tax Act 
or the Federal Insurance Contributions Act.

[62 FR 3790, Jan. 27, 1997]



PART 212--MILITARY SERVICE--Table of Contents




Sec.
212.1  General.
212.2  Military service defined.
212.3  Crediting of military service.
212.4  Periods of creditable military service.
212.5  Verification of military service.
212.6  Board's determination for use of military service.

    Authority: 45 U.S.C. 231f.

    Source: 49 FR 46734, Nov. 28, 1984, unless otherwise noted.



Sec. 212.1  General.

    In determining an individual's entitlement and amount of benefits 
under the Railroad Retirement Act, an individual's military service 
creditable under the Railroad Retirement Act is used. This part defines 
military service as used under this Act and sets forth the criteria to 
determine the creditability of military service.



Sec. 212.2  Military service defined.

    Military service is the performance of active service by an 
individual in the armed forces of the United States. An individual is 
considered to be in active military service when commissioned or 
enrolled in the land, naval or air forces of the United States until 
resignation or discharge therefrom. The service of an individual in any 
reserve component of the land, naval or air forces of the United States, 
during any period in which ordered to active duty, even though less than 
thirty days, is also considered active service. However, service in the 
Army Specialist Corps

[[Page 148]]

and the Merchant Marine is not creditable under the Railroad Retirement 
Act.



Sec. 212.3  Crediting of military service.

    In determining an individual's entitlement to an annuity and the 
amount of annuity to be paid under the Railroad Retirement Act, a 
calendar month or part of a calendar month during which the individual 
was in the active military service of the United States in a war service 
period, or period of national emergency, as determined in Sec. 212.4 of 
this part, may be included in the individual's years of service. 
Military service is credited as though the individual had performed 
service for a railroad employer as provided for in part 210 of this 
chapter, provided that the individual is credited with railroad service 
in the year of or the year before entrance into active military service. 
Compensation for creditable military service shall be credited as 
provided for in Sec. 211.7 of this chapter.



Sec. 212.4  Periods of creditable military service.

    In order for military service to be considered to be creditable 
under the Railroad Retirement Act, it must have been performed during 
one of the following periods:
    (a) April 21, 1898, through August 13, 1898--Spanish American War;
    (b) February 4, 1899, through April 27, 1902--Philippine 
Insurrection;
    (c) May 9, 1916, through February 5, 1917--Mexican Border 
Disturbances;
    (d) April 6, 1917, through November 11, 1918--World War I;
    (e) September 8, 1939, through June 14, 1948--National Emergency and 
World War II. Individuals required to continue in service after this 
period may be credited with the service if:
    (1) They were in military service on December 31, 1946, or
    (2) They were required to remain in military service involuntarily 
after December 31, 1946;
    (f) June 15, 1948, through December 15, 1950. This service is 
creditable if:
    (1) Entered into involuntarily; or
    (2) Entered into voluntarily, but only if:
    (i) The individual who seeks credit for this service performs 
service as an employee for an employer as defined in part 202 of this 
chapter either in the year of his or her release from active military 
service or in the year following such release, and;
    (ii) The individual does not engage in any employment not covered by 
part 203 between his or her release from active military service and his 
or her commencement of service for an employer.
    (g) December 16, 1950, through September 14, 1978--National 
Emergency.

[49 FR 46734, Nov. 28, 1984, as amended at 55 FR 20454, May 17, 1990]



Sec. 212.5  Verification of military service.

    Military service may be verified by the following proof:
    (a) The original certificate of discharge or release to inactive 
duty from a branch of the armed forces that shows the beginning and 
ending dates of the individual's active military service; or a certified 
copy of the original certificate made by the Federal, State, county or 
municipal agency or department in which the original certificate is 
recorded; or
    (b) A certificate from a branch of the armed forces that shows the 
beginning and ending dates of the individual's active military service; 
or
    (c) A photocopy of the document described in paragraph (a) or (b) of 
this section.



Sec. 212.6  Board's determination for use of military service.

    (a) Military service may be creditable under both the Railroad 
Retirement and Social Security Acts, but there are provisions under 
those Acts to prevent duplicate use of the service. The Railroad 
Retirement Board will determine whether an employee's military service 
should be used as railroad service or as Social Security service. The 
Board's determination is intended to be to the employee's advantage; 
however, if the employee does not agree with the Board's determination 
for use of the employee's military service, the employee may request 
that it be changed.
    (b) Generally, it is to the employee's advantage for the employee's 
military service to be creditable as railroad

[[Page 149]]

service where any of the following conditions may be met with the use of 
the employee's military service as railroad service:
    (1) It gives the employee 10 years of service (120 months), which is 
the minimum needed to qualify for an annuity based on age and service or 
total disability, as provided for in part 216, subpart B; or
    (2) It gives the employee 20 years of service (240 months), which is 
the minimum needed to qualify for an occupational disability annuity, as 
provided for in Sec. 216.6 of this chapter; or
    (3) It gives the employee 25 years of service (300 months), which is 
the minimum needed to qualify for a supplemental annuity, as provided 
for in part 216, subpart C; or
    (4) It gives the employee 30 years of service (360 months), which 
would allow the employee to retire at age 60 with a full annuity and 
will also provide a full annuity to a qualified spouse at age 60, as 
provided for in part 216, subparts B and D; or
    (5) It gives the employee sufficient railroad service to entitle the 
employee to vested dual benefit payments, as provided for in part 216, 
subpart H.
    (c) In certain cases it may be to the employee's advantage for the 
employee's military service to be credited under the Social Security 
Act. This is generally true under the following conditions:
    (1) Crediting the military service under the Social Security Act 
would entitle the employee and any eligible children to social security 
benefits, since direct benefits are not payable to children of retired 
employees under the Railroad Retirement Act; or
    (2) Crediting the military service under the Social Security Act 
would entitle employee to vested dual benefit payments.



PART 216--ELIGIBILITY FOR AN ANNUITY--Table of Contents




                           Subpart A--General

Sec.
216.1  Introduction.
216.2  Definitions.
216.3  Other regulations related to this part.

        Subpart B--Current Connection With the Railroad Industry

216.11  General.
216.12  When current connection is required.
216.13  Regular current connection test.
216.14  Regular non-railroad employment that will not break a current 
          connection.
216.15  Special current connection test.
216.16  What is regular non-railroad employment.
216.17  What amount of regular non-railroad employment will break a 
          current connection.

          Subpart C--Railroad and Last Non-Railroad Employment

216.21  General.
216.22  Work as an employee which affects payment.
216.23  Work which does not affect eligibility.
216.24  Relinquishment of rights to return to work.

                       Subpart D--Employee Annuity

216.30  General.
216.31  Who is eligible for an age annuity.
216.32  Who is eligible for a disability annuity.
216.33  What is required for payment of an age or disability annuity.

                     Subpart E--Supplemental Annuity

216.40  General.
216.41  Who is entitled to a supplemental annuity.
216.42  How a private railroad pension affects a supplemental annuity.
216.43  Effect of a supplemental annuity on other benefits.

             Subpart F--Spouse and Divorced Spouse Annuities

216.50  General.
216.51  Who is eligible for a spouse annuity.
216.52  Who is eligible for an annuity as a divorced spouse.
216.53  What is required for payment.
216.54  Who is an employee's wife or husband.

Subpart G--Widow(er), Surviving Divorced Spouse, and Remarried Widow(er) 
                                Annuities

216.60  General.
216.61  Who is eligible for an annuity as a widow(er).
216.62  Who is eligible for an annuity as a surviving divorced spouse.
216.63  Who is eligible for an annuity as a remarried widow(er).
216.64  What is required for payment.

[[Page 150]]

216.65  Who is an employee's widow(er).
216.66  Who is an employee's surviving divorced spouse.
216.67  ``Child in care.''
216.68  Disability period for widow(er), surviving divorced spouse, or 
          remarried widow(er).

                       Subpart H--Child's Annuity

216.70  General.
216.71  Who is eligible for a child's annuity.
216.72  What is required for payment of a child's annuity.
216.73  Who may be re-entitled to a child's annuity.
216.74  When a child is a full-time elementary or secondary school 
          student.
216.75  When a child is a full-time student during a period of non-
          attendance.

                       Subpart I--Parent's Annuity

216.80  General.
216.81  Who is eligible for a parent's annuity.
216.82  What is required for payment.

            Subpart J--Eligibility for More Than One Annuity

216.90  General.
216.91  Entitlement as an employee and spouse, divorced spouse, or 
          survivor.
216.92  Entitlement as a spouse or divorced spouse and as a survivor.
216.93  Entitlement to more than one survivor annuity.
216.94  Entitlement to more than one divorced spouse annuity.

    Authority: 45 U.S.C. 231f.

    Source: 56 FR 28692, June 24, 1991, unless otherwise noted.



                           Subpart A--General



Sec. 216.1  Introduction.

    This part explains when an individual is eligible for a monthly 
annuity under the Railroad Retirement Act. An individual eligible for an 
annuity as described in this part may become entitled to an annuity only 
in such amount as set forth in parts 225 through 229 of this chapter
    (a) Regular annuity. A regular monthly annuity is provided for:
    (1) An employee who retires because of age or disability;
    (2) An employee's spouse or divorced spouse; or
    (3) The widow, widower, child, parent, remarried widow or widower, 
or surviving divorced spouse of an employee.
    (b) Supplemental annuity. An employee who retires because of age or 
disability may also be entitled to a supplemental annuity.



Sec. 216.2  Definitions.

    Except as otherwise expressly noted, as used in this part--
    Age means an individual's age on the day preceding the anniversary 
date of his or her birth.
    Annuity means a payment due an entitled individual for a calendar 
month and made to him or her on the first day of the following month.
    Apply means to sign a form or statement that the Railroad Retirement 
Board accepts as an application for benefits under the rules set out in 
part 217 of this chapter.
    Attainment of age means that an individual attains a given age on 
the first moment of the day preceding the anniversary date of his or her 
birth corresponding to such numerical age.
    Board means the Railroad Retirement Board.
    Claimant means an individual who files an annuity application or for 
whom an annuity application is filed.
    Eligible means that an individual meets all the requirements for 
payment of an annuity but has not yet applied for one.
    Employee means an individual who is or has been in the service of an 
employer as here defined.
    Employer means a company, individual, or other entity determined to 
be a covered employer under the Railroad Retirement Act as provided by 
part 202 of this chapter.
    Entitled means that an individual has applied for and has 
established his or her rights to benefits.
    Railroad Retirement Act means the Railroad Retirement Act of 1974, 
as amended.
    Re-entitled annuity means an annuity to which an individual becomes 
entitled after an earlier-awarded annuity has been terminated. A re-
entitled annuity is usually awarded on the basis of different factors of 
eligibility from the initial annuity, and may be awarded without the 
filing of another application.

[[Page 151]]

    Retirement age means, with respect to an employee who attains age 62 
before January 1, 2000 (age 60 in the case of a widow(er), remarried 
widow(er) or surviving divorced spouse) age 65. For an employee who 
attains age 62 (or age 60 in the case of a widow(er), remarried 
widow(er), or surviving divorced spouse) after December 31, 1999, 
retirement age means the age provided for in section 216(1) of the 
Social Security Act.
    Social Security Act means the Social Security Act as amended.
    Tier I benefit means the benefit component calculated using Social 
Security Act formulas and based upon earnings covered under both the 
Railroad Retirement Act and the Social Security Act.
    Tier II benefit means the benefit component calculated under a 
formula found in the Railroad Retirement Act and based only upon 
earnings and service in the railroad industry.
    Year of service means 12 calendar months, consecutive or otherwise, 
of service creditable to an employee as described in part 210 of this 
chapter.



Sec. 216.3  Other regulations related to this part.

    This part is related to a number of other parts. Part 217 of this 
chapter describes how to apply for an annuity. Part 218 indicates when 
annuities begin and when they terminate. Part 219 sets out what evidence 
is necessary to prove eligibility. Where eligibility for an annuity is 
based upon a family relationship to an employee (for example, a widow's 
annuity), the definition of such family relationship may be found in 
part 222 of this chapter. Part 225 of this chapter describes the 
computation of the primary insurance amount.



        Subpart B--Current Connection With the Railroad Industry



Sec. 216.11  General.

    A current connection with the railroad industry is required to 
qualify for certain types of railroad retirement benefits. The existence 
of a current connection is clear in most cases where entitlement or 
death immediately follows continuous years of railroad employment. 
However, there are cases in which the employee did not work for a 
railroad employer for a period of time before entitlement or death. In 
these situations, special tests are applied to determine whether the 
employee can be considered to have a current connection with the 
railroad industry for the purpose of determining his or her eligibility 
for an annuity or other benefits.



Sec. 216.12  When current connection is required.

    (a) A current connection is required to qualify an individual for 
the following types of railroad retirement benefits:
    (1) An employee occupational disability annuity as described in 
subpart D of this part;
    (2) A supplemental annuity as described in subpart E of this part;
    (3) An employee vested dual benefit in certain cases;
    (4) A survivor annuity as described in subparts G, H, and I of this 
part; and
    (5) A lump-sum death payment as described in part 234 of this 
chapter.
    (b) A current connection which was established when an employee's 
annuity began is effective for:
    (1) Any annuity under this part for which the employee later becomes 
eligible; and
    (2) Any survivor annuity under this part or a lump-sum death payment 
under part 234 of this chapter.



Sec. 216.13  Regular current connection test.

    An employee has a current connection with the railroad industry if 
he or she meets one of the following requirements:
    (a) The employee has creditable railroad service in at least 12 of 
the 30 consecutive months immediately preceding the earlier of:
    (1) The month his or her annuity begins; or
    (2) The month he or she dies.
    (b) The employee has creditable railroad service in at least 12 
months in a period of 30 consecutive months and does not work in any 
regular non-railroad employment in the interval between the month the 
30-month period ends and the earlier of:
    (1) The month his or her annuity begins; or

[[Page 152]]

    (2) The month he or she dies.



Sec. 216.14  Regular non-railroad employment that will not break a current connection.

    Regular non-railroad employment will not break an employee's current 
connection if it is performed during the 30-month period described in 
Sec. 216.13(b), in or after the month the annuity begins, or in the 
month the employee dies.



Sec. 216.15  Special current connection test.

    (a) For survivor annuities. An employee who does not have a current 
connection under the regular test has a current connection only to 
qualify an individual for a survivor annuity if:
    (1) The employee would not be fully or currently insured under 
section 214 of the Social Security Act if his or her railroad 
compensation after 1936 were treated as social security earnings;
    (2) The employee has no quarters of coverage as defined in section 
213 of the Social Security Act; or
    (3) The employee received a pension or a retirement annuity that 
began before 1948 based on at least 114 months of service.
    (b) For survivor and supplemental annuities. An employee who does 
not have a current connection under the regular test has a current 
connection in order to pay a supplemental or survivor annuity if he or 
she meets all of the following requirements:
    (1) Has been credited with at least 25 years of railroad service;
    (2) Stopped working in the railroad industry ``involuntarily and 
without fault'' on or after October 1, 1975, or was on furlough, leave 
of absence or absent for injury on that date;
    (3) Did not decline an offer of employment in the same ``class or 
craft'' as his or her most recent railroad service; and
    (4) Was alive on October 1, 1981.
    (c) ``Involuntarily and without fault'' defined. An employee is 
considered to have stopped railroad employment involuntarily and without 
fault if:
    (1) The employee loses his or her job;
    (2) The employee could not, through the exercise of seniority 
rights, remain in railroad service in the same class or craft as his or 
her most recent railroad service, regardless of the location where that 
service would be performed; and
    (3) The employee did not lose his or her job because of poor job 
performance, misconduct, medical reasons or other action or inaction on 
the part of the employee.
    (d) Effect of separation allowance. An employee who accepts a 
separation allowance and in so doing relinquishes his or her seniority 
rights to railroad employment is deemed to have voluntarily terminated 
his or her railroad service. However, if the employee stopped railroad 
employment involuntarily and without fault, as defined in paragraph (c) 
of this section, receipt of a separation allowance will not affect a 
current connection under paragraph (b) of this section.
    (e) ``Class or craft'' defined. The terms``class or craft,'' as used 
in this section, have the same meaning as they do generally in the 
railroad industry.
    (f) For supplemental annuities only. An additional special current 
connection test is required for an individual who was receiving a 
disability annuity which terminated due to the individual's recovery 
from disability. If the individual becomes entitled to a new annuity, a 
new current connection test based on the new annuity beginning date must 
be made. This test is made using the rules contained in Secs. 216.13 and 
216.17.



Sec. 216.16  What is regular non-railroad employment.

    (a) Regular non-railroad employment is full or part-time employment 
for pay.
    (b) Regular non-railroad employment does not include any of the 
following:
    (1) Self-employment;
    (2) Temporary work provided as relief by an agency of a Federal, 
State, or local government;
    (3) Service inside or outside the United States for an employer 
under the Railroad Retirement Act, even if the employer does not conduct 
the main part of its business in the United States;

[[Page 153]]

    (4) Involuntary military service not creditable under the Railroad 
Retirement Act;
    (5) Employment with the following agencies of the United States 
Government:
    (i) Department of Transportation;
    (ii) Interstate Commerce Commission;
    (iii) National Mediation Board;
    (iv) Railroad Retirement Board;
    (v) National Transportation Safety Board; or
    (vi) Surface Transportation Board.
    (6) Employment entered into after early retirement by an employee 
who is receiving an annuity under Conrail's voluntary annuity program. 
This program is provided under the Staggers Rail Act of 1980 (Pub. L. 
96-448); or
    (7) Employment with the Alaska Railroad so long as it is an 
instrumentality of the State of Alaska.

[56 FR 28692, June 24, 1991, as amended at 62 FR 11324, Mar. 12, 1997]



Sec. 216.17  What amount of regular non-railroad employment will break a current connection.

    The amount of regular non-railroad employment needed to break a 
current connection depends on when the applicable 30-month period ends 
(see Sec. 216.13 of this part), as follows:
    (a) If the 30-month period ends in the calendar year before or in 
the same calendar year as the annuity begins or the month the employee 
dies, the current connection is broken if the employee:
    (1) Works in each month in the interval after the end of the 30-
month period and before the earlier of the month the annuity begins or 
the employee dies; or
    (2) Works and earns at least $200 in wages in any 3 months within 
the interval described in paragraph (a)(1) of this section.
    (b) If the 30-month period ends more than a year before the calendar 
year in which the annuity begins or the employee dies, the current 
connection is broken if the employee:
    (1) Works in any 2 consecutive years wholly or partially within the 
interval after the end of the 30-month period and before the month the 
annuity begins or the employee dies, whichever is earlier; and
    (2) Earns at least $1,000 in wages in any year wholly or partially 
within the interval described in paragraph (b)(1) of this section (but 
not counting earnings during the 30-month period and after the annuity 
beginning date), even if that year is not one of the 2 consecutive years 
described in paragraph (b)(1) of this section.



          Subpart C--Railroad and Last Non-Railroad Employment



Sec. 216.21  General.

    To be eligible for an employee, a spouse, or a divorced spouse 
annuity, the Railroad Retirement Act requires that an applicant must 
stop work for pay performed as an employee for a railroad employer. In 
addition, no employee, spouse or divorced spouse annuity may be paid for 
any month in which the employee, spouse or divorced spouse annuitant 
works for pay for any railroad employer after the date his or her 
annuity began. No annuity may be paid to a widow or widower, surviving 
divorced spouse, remarried widow or widower, child, or parent for any 
month such individual works for pay for a railroad employer.



Sec. 216.22  Work as an employee which affects payment.

    (a) Work for a railroad employer. Work for pay as an employee of a 
railroad employer always prevents payment of an annuity.
    (b) Work for last non-railroad employer. Work for pay in the service 
of the last non-railroad employer by whom an individual is employed will 
reduce the amount of the tier II benefit of the employee, spouse and 
supplemental annuity as provided in part 230 of this chapter. An 
individual's last non-railroad employer is:
    (1) Any non-railroad employer from whom the individual last resigned 
(in point of time) in order to receive an annuity; and
    (2) Any additional non-railroad employer from whom the individual 
resigned in order to have an annuity become payable. Employment which an 
individual stops within 6 months of the date on which the individual 
files for an annuity will be presumed in the absence of evidence to the 
contrary to be

[[Page 154]]

service from which the individual resigned in order to receive an 
annuity.
    (c) Corporate officers. An officer of a corporation will be 
considered to be an employee of the corporation. A director of a 
corporation acting solely in his or her capacity as such director is not 
an employee of the corporation.



Sec. 216.23  Work which does not affect eligibility.

    An individual may engage in any of the following without adversely 
affecting his or her annuity:
    (a) Work for a railway labor organization. An individual may work 
for a local lodge or division of a railway labor organization if the pay 
is under $25 a month, unless the work performed is solely for the 
purpose of collecting insurance premiums.
    (b) Work without pay. Work performed for any person or entity for 
which no pay is received, or where the pay merely constitutes 
reimbursement for out-of-pocket expenses, or where the amount received 
consists only of free will donations and there is no agreement that such 
donation shall constitute remuneration for services, does not affect 
entitlement to an annuity.
    (c) Self-employment. Self-employment is work performed in an 
individual's own business, trade or profession as an independent 
contractor, rather than as an employee. An individual is not self-
employed if the business is incorporated. The designation or description 
of the relationship between the individual and another person as 
anything other than that of an employer and employee is immaterial. If 
the Board determines that an employer-employee relationship exists, the 
fact that the employee is designated as a partner, coadventurer, agent, 
independent contractor, or the like will be disregarded. An individual 
determined to be an employee of a railroad employer pursuant to part 203 
of this chapter is not self-employed. Whether an individual performing 
services is an employee depends upon the degree to which the recipient 
of services controls the individual's work. Control is determined in 
accordance with general legal principles delineating an employer-
employee relationship. Among the factors considered are:
    (1) Instructions. An individual required to comply with instructions 
about when, where, and how to work is ordinarily an employee. 
Instructions may be oral or in the form of manuals or written procedures 
which show how the desired result is to be accomplished. An individual 
who ordinarily works without receiving instructions because he or she is 
highly skilled or knowledgeable may nevertheless be an employee if the 
employer has a right to instruct the individual in performance of the 
work.
    (2) Training. Training provided an individual by an employer 
indicates that the employer wants the work to be performed in a 
particular method or manner, especially if the training is given 
periodically or at frequent intervals. An individual may be trained by 
an experienced employee working with him or her, by correspondence, by 
required attendance at meetings, or by other methods.
    (3) Integration into the employer's business. Integration of an 
individual's services into the business operations of an employer 
generally shows that the individual is subject to direction and control. 
When the success or continuation of a business depends to an appreciable 
degree upon the performance of certain services, the individuals who 
perform those services must necessarily be subject to a certain amount 
of control by the owner of the business.
    (4) Services rendered personally. A requirement that an individual 
personally work for the employer indicates that the employer is 
interested in the methods as well as the results, and that the employer 
intends to control the result by controlling who does the work.
    (5) Hiring, supervising, and payment of assistants. An employer 
generally hires, supervises, and pays assistants. An individual who 
hires, supervises, and pays other workers at the direction of the 
employer may be an employee acting as a representative of the employer. 
However, if an individual hires, supervises, and pays his or her own 
assistants pursuant to a contract under which the individual agrees to 
provide materials and labor and under which the individual is 
responsible only for the attainment of a result, this factor

[[Page 155]]

indicates an independent contractor status.
    (6) Continuing work relationship. A work relationship between an 
individual and an employer which continues over time indicates that the 
individual is an employee. A relationship may continue if the individual 
works at frequently recurring, though somewhat irregular intervals, 
either on call of the employer or when work is available.
    (7) Set hours of work. A requirement that an individual work for an 
employer during a specified period of the day, week, month or year, or 
for a specified number of hours daily indicates that the individual is 
an employee. An individual whose occupation renders fixed hours 
impractical may be an employee if required by the employer to work at 
certain times.
    (8) Full time required. A requirement that an individual devote full 
time to the employer's business indicates that the individual is an 
employee. What full time means may vary with the intent of the parties, 
the nature of the occupation, and customs in the locality. Full-time 
work may be required indirectly even though not specified in writing or 
orally. An individual required to produce a minimum volume of business 
for an employer may be compelled to devote full time to producing the 
work. Prohibiting work for any other employer may require an individual 
to work full time to earn a living However, part-time work performed on 
a regular basis, or on call of the employer, or when work is available, 
may also render an individual an employee.
    (9) Working on employer's premises. Working on the employer's 
premises may indicate that an individual is an employee where by nature 
the work could be done elsewhere, because the employer's place of 
business is physically within the employer's direction and supervision. 
Desk space, telephone, and stenographic services provided by an employer 
place the worker within the employer's direction and supervision unless 
the worker has the option not to use these facilities. Work done off the 
employer's premises does not by itself indicate that the worker is not 
an employee because some occupations require that work be performed away 
from the premises of the employer. Control over the place of work is 
indicated when the person or persons for whom the services are performed 
have the right to compel the worker to travel a designated route, to 
canvass a territory within a certain time, or to work at specific places 
as required.
    (10) Order or sequence set. Performing tasks in the order or 
sequence set by the employer indicates that the worker is an employee. 
Often, because of the nature of an occupation, the person or persons for 
whom the services are performed do not set the order of the services or 
set the order infrequently. It is sufficient to show control, however, 
if such person or persons retain the right to do so.
    (11) Oral or written reports. Regular oral or written reports 
submitted to the employer indicate that the worker is an employee, 
compelled to account to the employer for his or her actions.
    (12) Payment by hour, week, month. Payment at a fixed rate per hour, 
week, or month indicates that an individual is an employee. Payment by 
commission with a guaranteed minimum salary, or by a drawing account at 
stated intervals with no requirement to repay amounts which exceed the 
individual's earnings, also indicates that an individual is an employee. 
Payment in a lump sum for a completed job indicates that an individual 
is self-employed. The lump sum may be computed by the number of hours 
required to do the job at a fixed hourly rate, or by weekly or monthly 
installments toward a lump sum agreed upon in advance as the total cost. 
Payment made on a straight commission basis generally indicates that the 
worker is an independent contractor.
    (13) Payment of business and/or traveling expenses. Payment by the 
employer of expenses which an individual incurs in connection with the 
employer's business indicates that the individual is an employee.
    (14) Furnishing of tools and materials. The fact that the person or 
persons for whom the services are performed furnish significant tools, 
materials, and other equipment tends to show the existence of an 
employer-employee relationship.

[[Page 156]]

    (15) Investment in facilities. If the worker invests in facilities 
which are used by the worker in performing services and which are not 
typically maintained by employees, such as an office rented by the 
worker from a party unrelated to the worker or to the employer, this 
factor tends to indicate that the worker is an independent contractor. 
On the other hand, if all facilities necessary to the work which an 
individual performs are furnished without charge by the employer, this 
factor indicates the existence of an employer-employee relationship. 
Facilities include equipment or premises necessary for the work, other 
than items such as tools, instruments, and clothing which may be 
commonly provided by an employee in a particular trade.
    (16) Realization of profit or loss. An individual not in a position 
to realize a profit or suffer a loss as a result of work performed for 
an employer is an employee. An individual has an opportunity for profit 
or loss if he or she:
    (i) Hires, directs, and pays assistants;
    (ii) Has his or her own office, equipment, materials, or other 
facilities for doing the work;
    (iii) Has continuing and recurring liabilities or obligations, and 
success or failure depends on the relation of receipts to expenditures; 
or
    (iv) Agrees to perform specific jobs for prices agreed upon in 
advance and pays expenses incurred in connection with the work.
    (17) Working for more than one firm at a time. If a worker performs 
more than de minimus services for a number of unrelated persons or firms 
at the same time, this factor generally indicates that the worker is an 
independent contractor. However, a worker who performs services for more 
than one person may be an employee of each of the persons, especially 
where such persons are part of the same service arrangement.
    (18) Making service available to the general public. The fact that 
an individual makes his or her services available to the general public 
on a regular and consistent basis rather than to one employer indicates 
that the individual is self-employed rather than an employee of any one 
firm. An individual may make services available to the public by working 
from his or her own office with assistants, from his or her own home, by 
holding business licenses, by a listing in a business directory, or by 
advertising.
    (19) Employer's right to discharge. The right to discharge a worker 
is a factor which indicates that the worker is an employee and the 
person who possesses the right is an employer. An employer exercises 
control through the threat of dismissal, which causes the worker to obey 
the employer's instructions. An employer's right to discharge exists 
even if it is restricted due to a collective bargaining agreement. An 
employer ordinarily cannot end a relationship without incurring 
liability with a self-employed individual who meets contract 
specifications.
    (20) Employee's right to terminate. The fact that an individual has 
the right to end his or her relationship with an employer at any time 
without incurring liability for work to be performed indicates that the 
individual is an employee. A self-employed individual is legally 
obligated to satisfactorily complete a specific job.



Sec. 216.24  Relinquishment of rights to return to work.

    (a) What return to work rights must be given up. Before an 
individual may receive an annuity based on age, he or she must give up 
any seniority or other rights to return to work for any railroad 
employer.
    (b) When right to return to work is ended. An individual's right to 
return to work for a railroad employer is ended whenever any of the 
following events occur:
    (1) The employer reports to the Board that the individual no longer 
has the right;
    (2) The individual or an authorized agent of that individual gives 
the employer an oral or written notice of the individual's wish to give 
up that right and:
    (i) The individual certifies to the Board that the right has been 
given up;
    (ii) The Board notifies the employer of the individual's 
certification; and
    (iii) The employer either confirms the individual's right has been 
given up

[[Page 157]]

or fails to reply within 10 days following the day the Board mailed the 
notice to the employer;
    (3) An event occurs which under the established rules or practices 
of the employer automatically ends that right;
    (4) The employer or the individual or both take an action which 
clearly and positively ends that right;
    (5) The individual never had that right and permanently stops 
working;
    (6) The Board gives up that right for the individual, having been 
authorized to do so by the individual;
    (7) The individual dies; or
    (8) The individual signs a statement that he or she gives up all 
rights to return to work in order to receive a separation allowance or 
severance pay.

(The information collection requirements contained in paragraph (b) were 
approved by the Office of Management and Budget under control number 
3220-0016)



                       Subpart D--Employee Annuity



Sec. 216.30  General.

    The Railroad Retirement Act provides annuities for employees who 
have reached a specified age and have been credited with a specified 
number of years of service. The Act also provides annuities for 
employees who become disabled. In addition, to be eligible for an 
annuity an employee must comply with the work restrictions outlined in 
subpart C of this part.



Sec. 216.31  Who is eligible for an age annuity.

    The Railroad Retirement Act provides annuities based on the 
employee's age for employees who have been credited with at least 10 
years of railroad service.
    (a) Annuities based on 10 years of service. An employee with 10 
years of railroad service but less than 30 years of service is eligible 
for an annuity if he or she:
    (1) Has attained retirement age; or
    (2) Has attained age 62 (the annuity cannot begin prior to the first 
full month during which the employee is age 62) but is less than 
retirement age. All components of the annuity are reduced for each month 
the employee is under retirement age when the annuity begins.
    (b) Annuities based on 30 years of service. An employee who has been 
credited with 30 years of railroad service is eligible for an annuity at 
age 60 (the annuity cannot begin prior to the first full month the 
employee is age 60). The Tier I component of the annuity is reduced if 
the employee meets the following conditions:
    (1) The employee annuity begins before the month in which the 
employee is age 62; and either
    (2) He or she had not attained age 60, prior to July 1, 1984; or
    (3) He or she had not completed 30 years of railroad service prior 
to July 1, 1984.
    (c) Change from employee disability to age annuity. A disability 
annuity paid to an employee through the end of the month before the 
month in which the employee attains retirement age is converted to an 
age annuity beginning with the month in which he or she attains 
retirement age.



Sec. 216.32  Who is eligible for a disability annuity.

    The Railroad Retirement Act provides two types of disability 
annuities for employees who have been credited with at least 10 years of 
railroad service. An employee may receive an annuity if his or her 
disability prevents work in his or her regular railroad occupation. An 
employee who cannot be considered for a disability based on ability to 
work in his or her regular railroad occupation may receive an annuity if 
his or her disability prevents work in any regular employment.
    (a) Disability for work in regular railroad occupation. An employee 
disabled for work in his or her regular occupation, as defined in part 
220 of this chapter, is eligible for a disability annuity if he or she:
    (1) Has not attained retirement age; and
    (2) Has a current connection with the railroad industry; and has 
either:
    (3) Completed 20 years of service; or
    (4) Completed 10 years of service and is at least 60 years old.
    (b) Disabled for work in any regular employment. An employee 
disabled for work in any regular employment, as

[[Page 158]]

defined in part 220 of this chapter, is eligible for a disability 
annuity if he or she:
    (1) Is under retirement age; and
    (2) Has completed 10 years of service.



Sec. 216.33  What is required for payment of an age or disability annuity.

    In addition to the eligibility requirements listed above, an 
employee may be required to meet other conditions before payment of his 
or her annuity may begin.
    (a) To receive payment of an employee annuity based on age, an 
eligible employee must:
    (1) Apply to be entitled to an annuity; and
    (2) Give up the right to return to service with his or her last 
railroad employer.
    (b) If a disability annuity is converted to an age annuity when the 
annuitant attains retirement age, the age annuity cannot be paid until 
the employee gives up the right to return to work as described in 
subpart C of this part. The employee may authorize the Board to 
relinquish any such right on his or her behalf at the time when he or 
she applies for the disability annuity.
    (c) To receive payment of an employee annuity based on disability, 
and eligible employee must apply to be entitled to an annuity.
    (d) When requested, the employee must submit evidence to support his 
or her application, such as proof of age or evidence of disability.

(The information collection requirements contained in this section were 
approved by the Office of Management and Budget under control number 
3220-0002)



                     Subpart E--Supplemental Annuity



Sec. 216.40  General.

    An employee with a current connection with the railroad industry at 
the time of retirement may qualify for a supplemental annuity in 
addition to the regular employee annuity. Supplemental annuities are 
paid from a separate account funded by employer taxes in addition to 
those assessed for regular annuities. The Board reduces a supplemental 
annuity if the employee receives a private pension based on 
contributions from a railroad employer.



Sec. 216.41  Who is entitled to a supplemental annuity.

    An employee is entitled to a supplemental annuity if he or she:
    (a) Has been credited with railroad service in at least one month 
before October 1981;
    (b) Is entitled to the payment of an employee annuity awarded after 
June 30, 1966;
    (c) Has a current connection with the railroad industry when the 
employee annuity begins;
    (d) Has given up the right to return to work as shown in subpart C 
of this part; and either
    (e) Is age 65 or older and has completed 25 years of service; or
    (f) Is age 60 or older and under age 65, has completed 30 years of 
service, and is awarded an annuity on or after July 1, 1974.



Sec. 216.42  How a private railroad pension affects a supplemental annuity.

    (a) What is a private railroad pension. The Board determines whether 
a pension established by a railroad employer is a private pension that 
will cause a reduction in the employee's supplemental annuity. A private 
pension for purposes of this subpart is a plan that:
    (1) Is a written plan or arrangement which is communicated to the 
employees to whom it applies;
    (2) Is established and maintained by an employer for a defined group 
of employees; and
    (3) Provides for the payment of definitely determinable benefits to 
employees over a period of years, usually for life, after retirement or 
disability. Such a plan is sometimes referred to as a defined benefit 
plan.
    (b) Defined contribution plan. A plan under which the employer is 
obligated to make fixed contributions to the plan regardless of profits 
(sometimes known as a money purchase plan) is a private pension plan. A 
plan under which the employer's contributions are discretionary is not a 
private pension plan under this section.

[[Page 159]]

    (c) Other than retirement benefits. A plan which provides benefits 
not customarily considered retirement benefits (such as unemployment 
benefits, sickness or hospitalization benefits) is not a private pension 
plan under this section.
    (d) Effective date of private railroad pension for supplemental 
annuity purposes. A private pension reduces a supplemental annuity 
payment effective on the first day of the month after the month the 
Board determines that it is a private pension as defined in paragraph 
(a) of this section.
    (e) Effect of private railroad pension. A supplemental annuity is 
reduced by the amount of any private pension the employee is receiving 
which is attributable to an employer's contributions, less any amount by 
which the private pension is reduced because of the supplemental 
annuity. The supplemental annuity is not reduced for the amount of a 
private pension attributable to the employee's contributions. The Board 
will determine the amount of a private pension for any month which is 
attributable to the employee's contributions.



Sec. 216.43  Effect of a supplemental annuity on other benefits.

    (a) Employee annuity. A supplemental annuity that begins after 
December 31, 1974, does not affect the payment of a regular employee 
annuity. A supplemental annuity beginning prior to 1975 causes a 
reduction in the employee annuity as provided by section 3(j) of the 
Railroad Retirement Act of 1937.
    (b) Spouse or survivor annuity. The payment of a supplemental 
annuity does not affect the amount of a spouse or survivor annuity.
    (c) Residual lump-sum. The amount of a supplemental annuity is not 
deducted from the gross residual lump-sum benefit. See part 234 of this 
chapter for an explanation of the residual lump-sum benefit.



             Subpart F--Spouse and Divorced Spouse Annuities



Sec. 216.50  General.

    The Railroad Retirement Act provides annuities for the spouse, and 
divorced spouse, of an employee who is entitled to an employee annuity. 
A spouse may receive an annuity based on age, or on having a child of 
the employee in his or her care. A divorced spouse may only receive an 
annuity based on age. No spouse or divorced spouse annuity may be paid 
based upon disability.



Sec. 216.51  Who is eligible for a spouse annuity.

    (a) To be eligible for an annuity, a spouse must:
    (1) Be the husband or wife, as defined in part 222 of this chapter, 
of an employee who is entitled to an annuity described under subpart D 
of this part; and
    (2) Stop working for any railroad employer.
    (b) Where the employee's annuity began before January 1, 1975, the 
employee has completed less than 30 years of railroad service, and is 
age 65 or older, the spouse must be:
    (1) Age 65 or older;
    (2) Less than age 65 and have in his or her care a disabled child or 
minor child (a child under 18 years old if the spouse claimant is a 
wife, or under 16 years old if the spouse claimant is a husband) of the 
employee; or
    (3) Age 62 or older but under age 65. In such case, all annuity 
components are reduced for each month the spouse is under age 65 at the 
time the annuity begins.
    (c) Where the employee's annuity begins after December 31, 1974, the 
employee has completed 10 years but less than 30 years of railroad 
service, and has attained age 62, the spouse must be:
    (1) Retirement age or older;
    (2) Less than retirement age and have in his or her care a disabled 
child or a minor child (a child under 18 years old if the spouse 
claimant is a wife, or under 16 years old if the spouse claimant is a 
husband) of the employee; or
    (3) Age 62 or older but under retirement age. In such case, all 
annuity components are reduced for each month the spouse is under 
retirement age at the time the annuity begins.
    (d) Where the employee's annuity began after June 30, 1974, the 
employee has completed 30 years of railroad service, and is age 60 or 
older, the spouse must be:

[[Page 160]]

    (1) Age 60 or older;
    (2) Less than age 60 and have in his or her care a disabled child or 
a minor child (a child under 18 years old if the spouse claimant is a 
wife, or under 16 years old if the spouse claimant is a husband) of the 
employee; or
    (3) Age 60 but less than retirement age. In such case, the tier I 
component is reduced if the following conditions are met:
    (i) The employee was under age 62 at the time his or her annuity 
began;
    (ii) The employee annuity began after June 30, 1984;
    (iii) The employee was under age 60 on June 30, 1984 or completed 30 
years of railroad service after June 30, 1984; and
    (iv) The spouse annuity begins after June 30, 1984.



Sec. 216.52  Who is eligible for an annuity as a divorced spouse.

    To be eligible for a divorced spouse annuity, the employee annuitant 
must be at least age 62 and the divorced spouse (see Sec. 222.22 of this 
chapter) must:
    (a) Be the divorced wife or husband of an employee;
    (b) Stop work for a railroad employer;
    (c) Not be entitled to an old-age or disability benefit under the 
Social Security Act based on a primary insurance amount that is equal to 
or greater than one-half of the employee's tier I primary insurance 
amount; and either
    (d) Have attained retirement age; or
    (e) Have attained age 62 but be under retirement age. The annuity is 
reduced for each month the spouse is under retirement age at the time 
the annuity begins.



Sec. 216.53  What is required for payment.

    An eligible spouse or divorced spouse must:
    (a) Apply to be entitled to an annuity; and
    (b) Give up the right to return to work for a railroad employer.

(Approved by the Office of Management and Budget under control number 
3220-0016 and 3220-0042)



Sec. 216.54  Who is an employee's wife or husband.

    An employee's wife or husband is an individual who--
    (a) Is married to the employee; and
    (b) Has been married to the employee for at least one year 
immediately before the date the spouse applied for annuity;
    (c) Is the natural parent of the employee's child;
    (d) Was entitled to an annuity as a widow(er), a parent, or a 
disabled child under this part in the month before he or she married the 
employee; or
    (e) Could have been entitled to a benefit listed in paragraph (d) of 
this section, if the spouse had applied and been old enough in the month 
before he or she married the employee.



Subpart G--Widow(er), Surviving Divorced Spouse, and Remarried Widow(er) 
                                Annuities



Sec. 216.60  General.

    The Railroad Retirement Act provides annuities for the widow(er), 
surviving divorced spouse, or remarried widow(er) of an employee. The 
deceased employee must have completed 10 years of railroad service and 
have had a current connection with the railroad industry at the time of 
his or her death. A widow(er), surviving divorced spouse, or remarried 
widow(er) may receive an annuity based on age, on disability, or on 
having a child of the employee in his or her care.



Sec. 216.61  Who is eligible for an annuity as a widow(er).

    (a) A widow(er) of an employee who has completed 10 years of 
railroad service and had a current connection with the railroad industry 
at death is eligible for an annuity if he or she:
    (1) Has not remarried; and either
    (2) Has attained retirement age;
    (3) Is at least 50 but less than 60 years of age and became disabled 
as defined in part 220 of this chapter before the end of the period 
described in Sec. 216.68 (this results in a reduced annuity);
    (4) Is less than retirement age but has in his or her care a child 
who either is under age 18 (16 with respect to the tier I component) or 
is disabled and

[[Page 161]]

who is entitled to an annuity under subpart H of this part; or
    (5) Is at least 60 years of age but has not attained retirement age. 
(In this case, all components of the annuity are reduced for each month 
the widow(er) is age 62 or over but under retirement age when the 
annuity begins. For each month the widow(er) is at least age 60 but 
under age 62, all components of the annuity are reduced as if the 
widow(er) were age 62).



Sec. 216.62  Who is eligible for an annuity as a surviving divorced spouse.

    (a) A surviving divorced spouse of an employee who completed 10 
years of railroad service and had a current connection with the railroad 
industry at death, is eligible for an annuity if he or she:
    (1) Is unmarried;
    (2) Is not entitled to an old-age benefit under the Social Security 
Act that is equal to or higher than the surviving divorced spouse's 
annuity before any reduction for age; and either
    (3) Has attained retirement age;
    (4) Is at least 50 years of age but less than retirement age and is 
disabled as defined in part 220 of this chapter before the end of the 
period described in Sec. 216.68 (this results in a reduced annuity.);
    (5) Is less than retirement age but has in his or her care a child 
who either is under age 16 or is disabled and who is entitled to an 
annuity under subpart H of this part; or
    (6) Is at least 60 years of age but has not attained retirement age. 
In this case, the annuity is reduced for each month the surviving spouse 
is under retirement age when the annuity begins.
    (b) A disabled surviving spouse's annuity is converted to an annuity 
based on age beginning the month he or she becomes 60 years old. The 
annuity rate does not change.
    (c) If a surviving divorced spouse marries after attaining age 60 
(or age 50 if he or she is a disabled surviving divorced spouse), such 
marriage shall be deemed not to have occurred.



Sec. 216.63  Who is eligible for an annuity as a remarried widow(er).

    (a) A widow(er) of an employee who completed 10 years of railroad 
service and had a current connection with the railroad industry at death 
is eligible for an annuity as a remarried widow(er) if he or she:
    (1) Remarried either:
    (i) After having attained age 60 (after age 50 if disabled); or
    (ii) Before age 60 but the marriage terminated;
    (2) Is not entitled to an old-age benefit under the Social Security 
Act that is equal to or higher than the full amount of the remarried 
widow(er)'s annuity before any reduction for age; and
    (3) Has attained retirement age;
    (4) Is at least 50 but less than 60 years of age and is disabled as 
defined in part 220 of this chapter before the end of the period 
described in Sec. 216.68 (this results in a reduced annuity);
    (5) Has not attained retirement age but has in his or her care a 
child who either is under age 16 or is disabled, and who is entitled to 
an annuity under subpart H of this part; or
    (6) Is at least age 60 but has not attained retirement age. (In this 
case, the annuity is reduced for each month the remarried widow(er) is 
under retirement age when the annuity begins.)
    (b) An individual entitled to a widow(er)'s annuity may be entitled 
to an annuity as a remarried widow(er) if he or she:
    (1) Remarries after having attained age 60 (after age 50 if he or 
she has been determined to be disabled prior to his or her remarriage) 
and is not a surviving divorced spouse; or
    (2) Is entitled to an annuity based upon having a child of the 
employee in his or her care and marries an individual entitled to a 
retirement, disability, widow(er)'s, mother's, father's, parent's, or 
disabled child's benefit under the Railroad Retirement Act or Social 
Security Act.



Sec. 216.64  What is required for payment.

    An eligible widow(er), surviving divorced spouse, or remarried 
widow(er) must:
    (a) Apply to be entitled for an annuity; and
    (b) Submit evidence requested by the Board to support his or her 
application.

(Approved by the Office of Management and Budget under control number 
3220-0030)

[[Page 162]]



Sec. 216.65  Who is an employee's widow(er).

    An individual who was married to the employee at the employee's 
death is the deceased employee's widow(er) if he or she:
    (a) Was married to the employee for at least 9 months before the day 
the employee died;
    (b) Is the natural parent of the employee's child;
    (c) Was married to the employee when either the employee or the 
widow(er) adopted the other's child, or they both legally adopted a 
child who was then under 18 years old;
    (d) Was married to the employee less than 9 months before the 
employee died but, at the time of marriage, the employee was reasonably 
expected to live for 9 months; and
    (1) The employee's death was accidental;
    (2) The employee died in the line of duty while he or she was 
serving active duty as a member of armed forces of the United States; or
    (3) The surviving spouse was previously married to the employee for 
at least 9 months;
    (e) Was entitled in the month before the month of marriage to 
either:
    (1) A benefit under section 202 of the Social Security Act as a 
widow, widower, spouse (divorced spouse, surviving divorced spouse), 
father, mother, parent, or disabled child; or
    (2) An annuity under the Railroad Retirement Act as a widow, 
widower, divorced spouse, or surviving divorced spouse, parent or 
disabled child; or
    (f) Could have been entitled to a benefit listed in paragraph (e) of 
this section, if the widow(er) had applied and been old enough to 
qualify therefor in the month before the month of marriage.



Sec. 216.66  Who is an employee's surviving divorced spouse.

    An individual who was married to the employee is the deceased 
employee's surviving divorced spouse if he or she:
    (a) Was married to the employee for a period of at least 10 years 
immediately before the date the divorce became final, and applies for an 
annuity based on age or disability; or
    (b) Applies for an annuity based on having a ``child in care'' and 
either:
    (1) Is the natural parent of the employee's child;
    (2) Was married to the employee at the time the employee or the 
surviving divorced spouse adopted the other's child who was then under 
18 years old; or
    (3) Was married to the employee at the time they adopted a child who 
was then under 18 years old.



Sec. 216.67  ``Child in care.''

    (a) Railroad Retirement Act. Part 222 of this chapter sets forth 
what is required to establish that a child is in an individual's care 
for purposes of the Railroad Retirement Act. This definition is used to 
establish eligibility for the tier II component of a female spouse or 
widow(er) annuity under that Act. Under this definition a child must be 
under age 18 or under a disability before any benefit is payable based 
upon having the child in care.
    (b) Social Security Act. In order to establish eligibility for the 
tier I components of a spouse or widow(er) annuity, and eligibility for 
a surviving divorced spouse annuity based upon having a child of the 
employee in care, the definition of ``child in care'' found in the 
Social Security Act is used. Under this definition, a child must be 
under age 16 or under a disability.



Sec. 216.68  Disability period for widow(er), surviving divorced spouse, or remarried widow(er).

    A widow(er), surviving divorced spouse, or remarried widow(er) who 
has a disability as defined in part 220 of this chapter is eligible for 
an annuity only if the disability began before the end of a period 
which:
    (a) Begins in the later of:
    (1) The month in which the employee died;
    (2) The last month for which the widow(er) or surviving divorced 
spouse was entitled to an annuity for having the employee's child in 
care; or
    (3) The last month for which the widow(er) or surviving divorced 
spouse was entitled to a previous annuity based on disability; and
    (b) Ends with the earlier of:

[[Page 163]]

    (1) The month before the month in which the widow(er) or surviving 
divorced spouse or remarried widow(er) become 60 years old; or
    (2) The last day of the last month of a 7-year period (84 
consecutive months) following the month in which the period began.



                       Subpart H--Child's Annuity



Sec. 216.70  General.

    The Railroad Retirement Act provides an annuity for the child of a 
deceased employee but not for the child of a living employee. The Act 
does provide that the child of a living employee can establish another 
individual's eligibility for a spouse annuity or cause an increase in 
the annuities of an employee and spouse. The eligibility requirements 
described in this subpart also apply for the following purposes, except 
as otherwise indicated in this part:
    (a) To establish annuity eligibility for a spouse under subpart F of 
this part if he or she has the employee's eligible child in care;
    (b) To establish annuity eligibility for a widow(er), or surviving 
divorce spouse or remarried widow(er) under subpart G of this part if he 
or she has the employee's child in care; or
    (c) To provide an increase in the employee's annuity under the 
Social Security Overall Minimum Guaranty (see part 229) by including the 
eligible child.



Sec. 216.71  Who is eligible for a child's annuity.

    An individual is eligible for a child's annuity if the individual:
    (a) Is a child of an employee who has completed 10 years of railroad 
service and had a current connection with the railroad industry when he 
or she died;
    (b) Is not married at the time the application is filed;
    (c) Is dependent upon the employee as defined in part 222 of this 
chapter; and
    (d) Meets one of the following at the time the application is filed:
    (1) Is under age 18; or
    (2) Is age 18 or older and either:
    (i) Is disabled as defined in part 220 of this chapter before 
attaining age 22 (the disability must continue through the time of 
application for benefits);
    (ii) Is under age 19 and is a full-time student as defined in 
Sec. 216.74 of this part; or
    (iii) Becomes age 19 in a month in which he or she is a full-time 
student and has not completed the requirement for, or received a diploma 
or certificate from, a secondary school.



Sec. 216.72  What is required for payment of a child's annuity.

    An eligible child of a deceased employee is entitled to an annuity 
upon applying therefor and submitting any evidence requested by the 
Board.

(Approved by the Office of Management and Budget under control number 
3220-0030)



Sec. 216.73  Who may be re-entitled to a child's annuity.

    If an individual's entitlement to a child's annuity has ended, the 
individual may be re-entitled if he or she has not married and he or she 
applies to be re-entitled. The re-entitlement may begin with:
    (a) The first month in which the individual is a full-time student 
if he or she is under age 19, or is age 19 and has not completed 
requirements for, or received a diploma or certificate from, a secondary 
school;
    (b) The first month the individual is disabled, if the disability 
began before he or she attained age 22 and continues through the time of 
application for benefits; or
    (c) The first month in which the individual is under a disability 
that began before the last day of a 7-year period (84 consecutive 
months) following the month in which the previous child's annuity ended, 
or the individual was no longer included as a disabled child in a 
railroad retirement annuity paid under the Social Security Overall 
Minimum Annuity (see part 229).



Sec. 216.74  When a child is a full-time elementary or secondary school student.

    (a) A child is a full-time elementary or secondary school student if 
he or she meets all of the following conditions:
    (1) The child is in full-time attendance at an elementary or 
secondary school; or

[[Page 164]]

    (2) The child is instructed in elementary or secondary education at 
home in accordance with a home school law of the State or other 
jurisdiction in which the child resides; or
    (3) The child is in an independent study elementary or a secondary 
education program administered by the local school, district, or 
jurisdiction, which is in accordance with the law of the State or other 
jurisdiction in which he or she resides.
    (b) The child is in full-time attendance in a day or evening non-
correspondence course of at least 13 weeks duration and he or she is 
carrying a subject load that is considered full-time for day students 
under the institution's standards and practices. If he or she is in a 
home schooling program as described in paragraph (a)(2) of this section, 
he or she must be carrying a subject load that is considered full-time 
for day students under the standards and practices set by the State or 
other jurisdiction in which the student resides.
    (c) To be considered in full-time attendance, scheduled attendance 
must be at the rate of at least 20 hours per week unless one of the 
exceptions in paragraphs (c) (1) and (2) of this section applies. If the 
student is in an independent study program as described in paragraph 
(a)(3) of this section, the number of hours spent in school attendance 
is determined by combining the number of hours of attendance at a school 
facility with the agreed upon number of hours spent in independent 
study. The student may still be considered in full-time attendance if 
the scheduled rate of attendance is below 20 hours per week if the Board 
finds that:
    (1) The school attended does not schedule at least 20 hours per week 
and going to that particular school is the student's only reasonable 
alternative; or
    (2) The student's medical condition prevents him or her from having 
scheduled attendance of at least 20 hours per week. To prove that the 
student's medical condition prevents him or her from scheduling 20 hours 
per week, the Board may request that the student provide appropriate 
medical evidence or a statement from the school; or
    (3) The student is not attending classes, but is graduating in that 
month and classes ended the month before.
    (d) An individual is not a full-time student if, while attending an 
elementary or secondary school, he or she is paid compensation by an 
employer who has requested or required that the individual attend the 
school. An individual is not a full time student while he or she is 
confined in a penal institution or correctional facility because he or 
she committed a felony after October 19, 1980.
    (e) A student who reaches age 19 but has not completed the 
requirements for a secondary school diploma or certificate and who is a 
full-time elementary or secondary student, as defined in paragraph (a) 
of this section, will continue to be eligible for benefits until the 
first day of the first month following the end of the quarter or 
semester in which he or she is then enrolled, or if the school is not 
operated on a quarter or semester system, the earlier of:
    (1) The first day of the month following completion of the course(s) 
in which he or she was enrolled when age 19 was reached; or
    (2) The first day of the third month following the month in which he 
or she reached age 19.

[63 FR 17326, Apr. 9, 1998]



Sec. 216.75  When a child is a full-time student during a period of non-attendance.

    A student who has been in full-time attendance at an elementary or 
secondary school is considered a full-time student during a period of 
non-attendance (include part-time attendance) if:
    (a) The period of non-attendance is 4 consecutive months or less;
    (b) The student shows to the satisfaction of the Board that he or 
she intends to return, or the student does return, to full-time 
attendance at the end of the period; and
    (c) The student has not been expelled or suspended from the school.

[[Page 165]]



                       Subpart I--Parent's Annuity



Sec. 216.80  General.

    The Railroad Retirement Act provides an annuity for the surviving 
parent of a deceased employee. The deceased employee must have completed 
10 years of railroad service and have had a current connection with the 
railroad industry at the time of his or her death. A parent may only 
receive an annuity based on age.



Sec. 216.81  Who is eligible for a parent's annuity.

    (a) Where the employee is not survived by a widow(er), or child who 
is or ever could be entitled to an annuity as described by subpart G or 
H of this part, a parent of the deceased employee is eligible for both 
the tier I and tier II components of an annuity if he or she:
    (1) Is age 60 or older;
    (2) Has not married since the employee died;
    (3) Received one-half of his or her support (as defined in part 222 
of this chapter) from the employee at the time the employee died; and
    (4) Files proof of support as provided for in paragraphs (b)(4) and 
(b)(5) of this section.
    (b) Where the employee is survived by a widow(er), or child who is 
or ever could be entitled to an annuity as described by subpart G or H 
of this part, a parent of the deceased employee is eligible for an 
annuity consisting of the tier I component alone if he or she:
    (1) Is age 60 or older;
    (2) Has not married since the employee died;
    (3) Is not in receipt of an old age benefit under the Social 
Security Act equal to or exceeding the amount of the parent's tier I 
annuity amount before it is reduced for the family maximum but after the 
sole survivor minimum is considered;
    (4) Received at least one-half of his or her support (as defined in 
part 222 of this chapter) from the employee either:
    (i) When the employee died, or
    (ii) At the beginning of the period of disability if the employee 
has a period of disability (as explained in part 220 of this chapter) 
which did not end before death; and
    (5) Files proof of support with the Board within 2 years after 
either:
    (i) The month in which the employee filed an application for a 
period of disability if support is to be established as of the beginning 
of the period of disability; or
    (ii) The date of the employee's death if support is to be 
established at that point.
    (c) The Board may accept proof of support filed after the 2-year 
period for reasons which constitute good cause to do so as that term is 
defined in part 219 of this chapter.



Sec. 216.82  What is required for payment.

    An eligible parent must file an application and submit the evidence 
requested by the Board to be entitled to an annuity.

(Approved by the Office of Management and Budget under control number 
3220-0030)



            Subpart J--Eligibility for More Than One Annuity



Sec. 216.90  General.

    An individual may meet the eligibility provisions for more than one 
annuity described in this part. The Railroad Retirement Act generally 
requires that the total amount of annuities otherwise independently 
payable to one individual must be reduced if that individual is entitled 
to multiple annuities. Entitlement as a survivor includes entitlement as 
a widow(er), surviving divorced spouse, remarried widow(er), child, or 
parent.



Sec. 216.91  Entitlement as an employee and spouse, divorced spouse, or survivor.

    (a) General. If an individual is entitled to an annuity as a spouse, 
divorced spouse or survivor, and is also entitled to an employee 
annuity, then the spouse, divorced spouse or survivor annuity must be 
reduced by the amount of the employee annuity. However, this reduction 
does not apply (except as provided in paragraph (b) of this section) if 
the spouse, divorced spouse or survivor or the individual upon whose 
earnings record the spouse, divorced spouse or survivor annuity is based 
worked for a railroad employer or as an

[[Page 166]]

employee representative before January 1, 1975.
    (b) Tier I reduction. If an individual is entitled to an annuity as 
a spouse, divorced spouse or survivor, and is also entitled to an 
employee annuity, then the tier I component of the spouse, divorced 
spouse or survivor annuity must be reduced by the amount of the tier I 
component of the employee annuity. Where the spouse or survivor is 
entitled to a tier II component, then a portion of this reduction may be 
restored in the computation of this component.



Sec. 216.92  Entitlement as a spouse or divorced spouse and as a survivor.

    If an individual is entitled to both a spouse or divorced spouse and 
survivor annuity, only the larger annuity will be paid. However, if the 
individual so chooses, he or she can receive the smaller annuity rather 
than the larger annuity.



Sec. 216.93  Entitlement to more than one survivor annuity.

    If an individual is entitled to more than one survivor annuity, only 
the larger annuity will be paid. However, if the individual so chooses, 
he or she can receive the smaller annuity rather than the larger 
annuity.



Sec. 216.94  Entitlement to more than one divorced spouse annuity.

    If an individual is entitled to more than one annuity as a divorced 
spouse, only the larger annuity will be paid. However, if the individual 
so chooses, he or she can receive the smaller annuity rather than the 
larger annuity.



PART 217--APPLICATION FOR ANNUITY OR LUMP SUM--Table of Contents




                           Subpart A--General

Sec.
217.1  Introduction.
217.2  Definitions.
217.3  Need to file an application.

                         Subpart B--Applications

217.5  When an application is a claim for an annuity or lump sum.
217.6  What is an application filed with the Board.
217.7  Claim filed with the Social Security Administration.
217.8  When one application satisfies the filing requirement for other 
          benefits.
217.9  Effective period of application.
217.10  Application filed after death.
217.11  ``Good cause'' for delay in filing application.

                    Subpart C--Filing An Application

217.15  Where to file.
217.16  Filing date.
217.17  Who may sign an application.
217.18  When application is not acceptable.
217.19  Representative of the claimant selected after application is 
          filed.
217.20  When a written statement is used to establish the filing date.
217.21  Deterred from filing.

                 Subpart D--Cancellation of Application

217.25  Who may cancel an application.
217.26  How to cancel an application.
217.27  Effect of cancellation.

                    Subpart E--Denial of Application

217.30  Reasons for denial of application.
217.31  Applicant's right to appeal denial.

    Authority: 45 U.S.C. 231d and 45 U.S.C. 231f.

    Source: 47 FR 7647, Feb. 22, 1982, unless otherwise noted.



                           Subpart A--General



Sec. 217.1  Introduction.

    This part prescribes how to apply for an annuity or lump-sum payment 
under this chapter. It contains the rules for the filing and 
cancellation of an application and the period of time the application is 
in effect. Eligibility requirements for an annuity and for a lump-sum 
payment are found respectively in parts 216 and 234 of this chapter.

[54 FR 13363, Apr. 3, 1989]



Sec. 217.2  Definitions.

    The following definitions are used in this part:
    Applicant means a person who signs an application for an annuity or 
lump sum for himself or herself or for some other person.
    Application refers only to a form described in Sec. 217.6.
    Apply or file means to sign a form or statement that the Railroad 
Retirement Board accepts as an application.

[[Page 167]]

    Award means to process a form to make a payment. An annuity is 
awarded on the date the payment form is processed.
    Claimant means a person who files for an annuity or lump sum for 
himself or herself or the person for whom an application is filed.



Sec. 217.3  Need to file an application.

    In addition to meeting other requirements, a person must file an 
application to become entitled to an annuity or lump sum. Filing an 
application will--
    (a) Permit a formal decision on whether the person is entitled to an 
annuity or lump sum;
    (b) Protect a person's entitlement to an annuity for as many as 12 
months before the application is filed; and
    (c) Provide the right to appeal if the person is dissatisfied with 
the decision (see part 260 of this chapter).

(Approved by the Office of Management and Budget under control numbers 
3220-0030, 3220-0031 and 3220-0042)

[47 FR 7647, Feb. 22, 1982, as amended at 52 FR 11017, Apr. 6, 1987]



                         Subpart B--Applications



Sec. 217.5  When an application is a claim for an annuity or lump sum.

    An application is a claim for an annuity or lump sum if it meets all 
of the following conditions:
    (a) It is on an application form completed and filed with the Board 
as described in Sec. 217.6;
    (b) It is signed by the claimant or by someone described in 
Sec. 217.17 who can sign the application for the claimant;
    (c) It is filed with the Board on or before the date of death of the 
claimant. (See Sec. 217.10 for limited exceptions.)

(Approved by the Office of Management and Budget under control number 
3220-0002)

[47 FR 7647, Feb. 22, 1982, as amended at 52 FR 11017, Apr. 6, 1987]



Sec. 217.6  What is an application filed with the Board.

    (a) General. An application filed with the Board is generally one 
that is filed on a form set up by the Board for that purpose. See part 
200 of this chapter for a list of application forms.
    (b) Claim filed with the Social Security Administration. An 
application filed for benefits under title II of the Social Security Act 
on one of the forms set up by the Social Security Administration for 
that purpose (except an application for a disability insurance benefit 
that terminated before the employee completed his or her 120th month of 
creditable railroad service) is also considered an application for an 
annuity or lump sum if it is filed as shown in Sec. 217.7.
    (c) Claim filed with the Veterans Administration. An application 
filed with the Veterans Administration on one of its forms for survivor 
benefits under section 3005 of title 38, United States Code, is also 
considered an application for a survivor annuity.



Sec. 217.7  Claim filed with the Social Security Administration.

    (a) Claim is for life benefits. An application for life benefits 
under title II of the Social Security Act is an application for an 
annuity if the conditions either in paragraphs (a)(1), (2), and (3) or 
in paragraph (a)(4) of this section are met:
    (1) The application was filed because the applicant did not know he 
or she was eligible for an annuity under the Railroad Retirement Act. 
The Board must have or receive evidence indicating why the applicant 
thought that he or she lacked eligibility for an annuity.
    (2) The claimant would have been entitled to and would currently be 
entitled to an annuity under subpart B or D of part 216 of this chapter 
if the applicant had applied for the annuity on the date the social 
security application was filed.
    (3) The applicant asks the Board in a written statement to consider 
the application for social security benefits as an application for an 
employee or spouse annuity.
    (4) The application was filed because the employee had less than 10 
years of creditable railroad service, and having established entitlement 
to social security benefits and continued working in railroad service, 
subsequently acquired 10 years of railroad service.
    (b) Claim is for death benefits. An application for death benefits 
under title

[[Page 168]]

II of the Social Security Act is an application for an annuity or lump 
sum if--
    (1) The application is filed based on the death of an employee and 
the Board has jurisdiction for the payment of survivor benefits based on 
the compensation record of the deceased employee; and
    (2) The claimant is eligible for an annuity or a lump-sum death 
payment on the date the application is filed.



Sec. 217.8  When one application satisfies the filing requirement for other benefits.

    An annuity application filed with the Board is generally considered 
as an application for other benefits to which a person is or may be 
eligible. Therefore a claimant does not need to file another application 
to be entitled to any of the following types of benefits:
    (a) An employee age annuity if--
    (1) The employee's application for a disability annuity is denied 
and the employee is eligible for the age annuity on the date the 
application is filed; or
    (2) The employee is entitled to a disability annuity in the month 
before the month he or she is 65 years old.
    (b) An employee disability annuity if an application for an age 
annuity is denied and the employee is eligible for the disability 
annuity on the date the application is filed.
    (c) An accrued employee or supplemental annuity, or a residual lump 
sum, if a claimant is eligible for one of these payments when he or she 
files an application for a survivor annuity or lump-sum payment under 
this chapter.
    (d) A widow(er)'s annuity if the widow(er) was entitled to a spouse 
annuity in the month before the month the employee died.
    (e) A widow(er)'s annuity if the widow(er) was included in the 
computation of the employee's annuity under the social security overall 
minimum provision of the Railroad Retirement Act in the month before the 
month the employee died.
    (f) A child's annuity if the spouse of the employee had the child 
``in care'' and was entitled to a spouse annuity in the month before the 
month the employee died.
    (g) A child's annuity or child's full-time student annuity if the 
child of the employee was included in the computation of the employee's 
annuity under the social security overall minimum provision of the 
Railroad Retirement Act in the month before the month the employee died.
    (h) A widow(er)'s annuity based on age if the widow(er) was entitled 
to a widow(er)'s annuity based on disability in the month before the 
month in which he or she attains age 60.
    (i) A widow(er)'s annuity based on age or disability if a widow(er), 
who was receiving an annuity because he or she had the employee's child 
``in care'', is eligible for an age or disability annuity when he or she 
no longer has an eligible child ``in care''.
    (j) A spouse annuity based on age if a spouse, who was receiving an 
annuity because he or she had the employee's child ``in care'', is 
eligible for an unreduced age annuity when he or she no longer has an 
eligible child ``in care''.
    (k) A widow(er)'s annuity based upon having the employee's child 
``in care'' if during the time the widow(er) is entitled to an annuity 
based on disability, he or she has ``in care'' a child of the deceased 
employee.
    (l) A divorced spouse annuity if the divorced spouse was entitled to 
a spouse annuity reduced for age in the month before the month of the 
effective date of the final decree of divorce.
    (m) A divorced spouse annuity if the divorced spouse was entitled to 
a spouse annuity not reduced for age in the month before the month of 
the effective date of the final decree of divorce and would also be 
entitled to a divorced spouse annuity not reduced for age.
    (n) A surviving divorced spouse annuity if the surviving divorced 
spouse was entitled to a divorced spouse annuity in the month before the 
month the employee died.
    (o) A remarried widow(er)'s annuity if the remarried widow(er) was 
entitled to a widow(er)'s annuity in the month before the month of 
remarriage.
    (p) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age or disability if the remarried widow(er) or 
surviving divorced spouse, who was receiving an annuity

[[Page 169]]

because he or she had the employee's child ``in care'', is eligible for 
an age or disability annuity when he or she no longer has an eligible 
child ``in care''.
    (q) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age if the remarried widow(er) or the surviving 
divorced spouse was entitled to an annuity based on the disability in 
the month before the month in which he or she attains age 65.
    (r) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age if the remarried widow(er) or surviving divorced 
spouse, who was receiving an annuity based on disability, is 60 years 
old or older when he or she recovers from the disability.
    (s) A benefit under title II of the Social Security Act unless the 
applicant restricts the application only to an annuity payable under the 
Railroad Retirement Act.
    (t) An accrued annuity due at the death of a spouse or divorced 
spouse if the claimant is entitled to an employee annuity on the same 
claim number.
    (u) A full-time student's annuity if the student was entitled to a 
child's annuity in the month before the month the child attained age 18.

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13363, Apr. 3, 1989; 60 
FR 21982, May 4, 1995]



Sec. 217.9  Effective period of application.

    (a) When effective period ends. The effective period of an 
application ends on the date of the notice of an initial decision 
denying the claim. If a timely appeal is made (see part 260 of this 
chapter) the effective period of the application ends on the date of the 
notice of the decision of the referee, on the date of the notice of the 
final decision of the Board, or when court review of the denial has been 
completed. After the effective period of an application ends, the person 
must file a new application for any annuity or lump sum to which the 
claimant believes he or she is eligible.
    (b) Application filed before claimant is eligible--(1) General rule. 
Except as shown in paragraph (b)(2) of this section, an application for 
an annuity must be denied if it is filed with the Board more than three 
months before the date an annuity can begin.
    (2) Application for disability annuity. If the Board determines that 
a claimant for a disability annuity is disabled under part 220 of this 
chapter, beginning with a date after the application is filed and before 
a final decision is made, the application is treated as though it were 
filed on the date the claimant became disabled. The claimant may be an 
employee, widow(er), surviving divorced spouse, remarried widow(er), or 
surviving child.
    (c) Application filed after the claimant is eligible--(1) 
Application for lump-sum death payment. An application for a lump-sum 
death payment under part 234 of this chapter must be filed within two 
years after the death of the employee. This period may be extended under 
the Soldiers' and Sailors' Civil Relief Act of 1940, or when the 
applicant can prove ``good cause'' under Sec. 217.11 of this chapter for 
not filing within the time limit.
    (2) Application for annuity unpaid at death. An application for an 
annuity due but unpaid at death under part 234 of this chapter must be 
filed within two years after the death of the person entitled to the 
annuity. This period may be extended under the Soldiers' and Sailors' 
Civil Relief Act of 1940, or when the applicant can prove ``good cause'' 
under Sec. 217.11 of this chapter for not filing within the time limit.
    (3) Application for residual lump sum. An application for a residual 
lump sum under part 234 of this chapter may be filed at any time after 
the death of the employee.
    (4) Application for a period of disability. In order to be entitled 
to a period of disability under part 220 of this chapter, an employee 
must apply while he or she is disabled under part 220 or not later than 
12 months after the month in which the period of disability ends except 
that an employee who is unable to apply within the 12-month period after 
the period of disability ends because his or her physical condition 
limited his or her activities to the extent that he or she could not 
complete and sign an application or because he or she was mentally 
incompetent, may

[[Page 170]]

apply no later than 36 months after the period of disability ends.

(Approved by the Office of Management and Budget under control number 
3220-0002)

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13363, Apr. 3, 1989]



Sec. 217.10  Application filed after death.

    (a) A survivor eligible for an annuity or lump sum under this 
chapter may file an application to establish a period of disability if 
the employee dies before filing an application for a disability annuity. 
A period of disability is defined in part 220 of this chapter. The 
application must be filed within three months after the month the 
employee died.
    (b) A person who could receive payment for the estate of a person 
who paid the burial expenses of the deceased employee may file an 
application if the person who paid the burial expenses dies before 
applying for the lump-sum death payment under part 234 of this chapter. 
The application must be filed within the two-year period shown in 
Sec. 217.9 (c)(1).
    (c) A widow(er) or surviving divorced spouse may file an application 
for a spouse or divorced spouse annuity after the death of the employee 
if the widower(er) or surviving divorced spouse was eligible for a 
spouse or divorced spouse annuity in any month before the month the 
employee died. The spouse or divorced spouse annuity is payable from the 
beginning date set forth in part 218 of this chapter.

(Approved by the Office of Management and Budget under control numbers 
3220-0031 and 3220-0032)

[47 FR 7647, Feb. 22, 1982, as amended at 52 FR 11017, Apr. 6, 1987; 54 
FR 13364, Apr. 3, 1989]



Sec. 217.11  ``Good cause'' for delay in filing application.

    (a) An applicant has ``good cause'' for a delay in the filing of an 
application for a lump-sum death payment or an annuity unpaid at death, 
as shown in Sec. 217.9(c)(1) and (2), if the delay was due to--
    (1) Circumstances beyond the applicant's control, such as extended 
illiness, mental or physical incapacity, or communication difficulties; 
or
    (2) Incorrect or incomplete information furnished by the Board; or
    (3) Efforts by the applicant to secure evidence without realizing 
that evidence could be submitted after filing an application; or
    (4) Unusual or unavoidable circumstances which show that the 
applicant could not reasonably be expected to have been aware of the 
need to file an application within the set time limit.
    (b) An applicant does not have good cause for a delay in filing if 
he or she was informed of the need to file within the set time limit but 
neglected to do so or decided not to file.



                    Subpart C--Filing An Application



Sec. 217.15  Where to file.

    (a) Applicant in U.S. or Canada. An applicant who lives in the 
United States or Canada may file an application at any Board office in 
person or by mail. An applicant may also give the application to any 
Board field employee who is authorized to receive it at a place other 
than a Board office.
    (b) Application outside U.S. An applicant who lives outside the 
United States or Canada may file an application at any United States 
Foreign Service office. An applicant may also send the application to an 
office of the Board.



Sec. 217.16  Filing date.

    An application filed in a manner and form acceptable to the Board is 
officially filed with the Board on the earliest of the following dates:
    (a) On the date it is received at a Board office.
    (b) On the date it is delivered to a field employee of the Board as 
described in Sec. 217.15.
    (c) On the date it is received at any office of the U.S. Foreign 
Service.
    (d) On the date the application was mailed, as shown by the 
postmark, if using the date it is received will result in the loss or 
reduction of benefits.
    (e) On the date the Social Security Administration considers the 
application filed, if it is filed with the Social Security Adminstration 
or the Veterans Administration.

[[Page 171]]



Sec. 217.17  Who may sign an application.

    An application may be signed according to the following rules:
    (a) A claimant who is 18 years old or older, competent (able to 
handle his or her own affairs), and physically able to sign the 
application, must sign in his or her own handwriting, except as provided 
in paragraph (e) of this section. A parent or a person standing in place 
of a parent must sign the application for a child who is not yet 18 
years old, except as shown in paragraph (d) of this section.
    (b) A claimant who is unable to write must make his or her mark. A 
Board representative or two other persons must sign as witnesses to a 
signature by mark.
    (c) A claimant's representative, as described in part 266 of this 
chapter, must sign the application if the claimant is incompetent 
(unable to handle his or her own affairs).
    (d) A claimant who is a child between the ages of 16 and 18, is 
competent, as defined in paragraph (a) of this section, has no court 
appointed representative, and is not in the care of any person, may sign 
the application.
    (e) If it is necessary to protect a claimant from losing benefits 
and there is good cause for the claimant not personally signing the 
application, the Board may accept an application signed by someone other 
than a person described in paragraphs (a), (b), (c), and (d) of this 
section. A person who signs an application for someone else will be 
required to provide evidence of his or her authority to sign the 
application for the person claiming benefits under the following rules:
    (1) If the person who signs is a court-appointed representative, he 
or she must submit a certificate issued by the court showing authority 
to act for the claimant.
    (2) If the person who signs is not a court-appointed representative, 
he or she must submit a statement describing his or her relationship to 
the claimant. The statement must also describe the extent to which the 
person is responsible for the care of the claimant.
    (3) If the person who signs is the manager or principal officer of 
an institution which is responsible for the care of the claimant, he or 
she must submit a statement indicating the person's position of 
responsibility at the institution.
    (4) The Board may, at any time, in its sole discretion require 
additional evidence to establish the authority of a person to sign an 
application for someone else.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030, 3220-0031 and 3220-0042)

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13364, Apr. 3, 1989]



Sec. 217.18  When application is not acceptable.

    (a) Not properly signed. The Board will ask the applicant to prepare 
a corrected application if--
    (1) The original application was signed by someone other than the 
claimant or a person described in Sec. 217.17; or
    (2) The signature has been changed; or
    (3) The signature is not readable or does not appear to be 
authentic.
    (b) Incomplete or not readable. The Board will ask the applicant to 
prepare a supplemental application with certain items completed if--
    (1) Any entries on the application are not readable or appear to be 
incorrect; or
    (2) An important part of the application was not completed.
    (c) Obtaining corrected application. If an application is not 
properly signed, the applicant must prepare a new application with a 
corrected signature. If the Board receives the corrected application 
within 30 days after the applicant is asked to prepare it, the Board 
will use the filing date of the original application to pay benefits. If 
the Board receives the corrected application more than 30 days after the 
notice to the applicant, the Board will use the filing date of the 
corrected application to pay benefits.



Sec. 217.19  Representative of the claimant selected after application is filed.

    (a) Before benefits awarded. If the Board selects a representative 
for an incompetent claimant (see part 266 of this chapter) after an 
application is filed but before the benefit is awarded,

[[Page 172]]

a new benefit application must be filed by the representative. However, 
benefits will be paid using the filing date of the original benefit 
application.
    (b) After benefits awarded. If the Board selects a representative 
after a monthly annuity was awarded to another person, the 
representative must apply as a substitute payee on a form specifically 
designed for that purpose. A new annuity application is not required.



Sec. 217.20  When a written statement is used to establish the filing date.

    (a) Statement filed with the Board. A written statement indicating 
an intent to file a claim for an annuity or lump sum, filed with the 
Board as provided in Secs. 217.15 and 217.16, can establish the filing 
date of an application. A form set up by the Board to obtain information 
about persons who may be eligible for an annuity or lump sum in a 
particular case is not by itself considered a written statement for the 
purpose of this section. The Board will use the filing date of the 
written statement if all of the following requirements are met:
    (1) The statement gives a person's clear and positive intent to 
claim an annuity or lump sum for himself or herself or for some other 
person.
    (2) The claimant or a person described in Sec. 217.17 signs the 
statement.
    (3) The person who signed the statement files an application with 
the Board on one of the forms described in part 200 of this chapter 
within 90 days after the date a notice is sent advising the person of 
the need to file an application.
    (4) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.
    (b) Statement filed with the Social Security Administration. A 
written statement filed with the Social Security Administration can be 
used to establish the filing date of an application if, assuming the 
statement were an application, the conditions under Sec. 217.7 are met 
and--
    (1) The statement gives a clear and positive intent to claim 
benefits under title II of the Social Security Act;
    (2) The claimant or a person described in Sec. 217.17 signs the 
statement;
    (3) The statement is sent to the Board by the Social Security 
Administration;
    (4) The person who signed the statement files an application with 
the Board on one of the forms described in part 200 of this chapter 
within 90 days after the date a notice is sent advising the person of 
the need to file an application; and
    (5) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.
    (c) Telephone contact with the Board. If an individual telephones a 
Board office and advises a Board employee that he or she intends to file 
an application but cannot do so before the end of the month, the Board 
employee will prepare and sign a written statement which may be used to 
establish the filing date of an application if all of the following 
requirements are met:
    (1) The inquirer expresses a clear and positive intent to claim 
benefits for himself or herself or for some other person;
    (2) The prescribed application cannot be filed by the end of the 
current month;
    (3) The inquirer is either the potential claimant or the person who 
will file an application as representative payee therefor;
    (4) The inquiry is received by an office of the Board no more than 3 
months before eligibility exists;
    (5) It appears that a loss of benefits might otherwise result;
    (6) The telephone inquirer files an application with the Board on 
one of the forms described in part 200 of this chapter within 90 days 
after the date a notice is sent advising the person of the need to file 
an application; and
    (7) The claimant is alive when the application is filed, except as 
provided in Sec. 217.10 of the part.

[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13364, Apr. 3, 1989]



Sec. 217.21  Deterred from filing.

    A person who telephones or visits a Board office stating that he or 
she wishes to file for an annuity or lump sum, but puts off filing 
because of an action or lack of action by an employee of the Board, can 
establish a filing date

[[Page 173]]

based on that oral notice if the following conditions are met:
    (a) There is evidence which establishes that the employee of the 
Board failed to--
    (1) Tell the person that it was necessary to file an application on 
the proper form; or
    (2) Tell the person that a written statement could protect the 
filing date; or
    (3) Give the person the proper application form; or
    (4) Correctly inform the person of his or her eligibility.
    (b) The person files an application on one of the forms described in 
part 200 of this chapter within 90 days after the date a notice is sent 
advising the person of the need to file an application.
    (c) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.



                 Subpart D--Cancellation of Application



Sec. 217.25  Who may cancel an application.

    An application may be cancelled by the claimant or a person 
described in Sec. 217.17. If the claimant is deceased, the person who is 
or could be eligible for any annuity accrual under part 234 of this 
chapter may cancel the application for the annuity.



Sec. 217.26  How to cancel an application.

    An application may be cancelled under the following conditions:
    (a) Before an annuity is awarded. The application may be cancelled 
if--
    (1) The applicant files a written request with the Board at a place 
described in Sec. 217.15 asking that the application be cancelled or 
stating that he or she wants to withdraw the application;
    (2) The claimant is alive on the date the written request is filed 
or the claimant is deceased and the rights of no person other than the 
person requesting the cancellation will be adversely affected; and
    (3) The applicant files the written request on or before the date 
the annuity is awarded.
    (b) After an annuity is awarded. The application may be cancelled 
if--
    (1) The conditions in paragraph (a)(1) and (2) of this section are 
met;
    (2) Any other person who would lose benefits because of the 
cancellation consents to the cancellation in writing; and
    (3) All annuity payments already made based on the application being 
cancelled are repaid or will be recovered.



Sec. 217.27  Effect of cancellation.

    When a person cancels an application the effect is the same as 
though an application was never filed. When an employee cancels his or 
her application, any application filed by the employee's spouse is also 
cancelled. However, a request to cancel a survivor's application will 
cancel only the application of the survivor named in the written 
request. A person who cancels an application may reapply by filing a new 
application under this part.



                    Subpart E--Denial of Application



Sec. 217.30  Reasons for denial of application.

    The Board will deny each application filed by or for an employee, 
spouse or survivor for one or more of the following reasons:
    (a) The claimant does not meet the eligibility requirements for an 
annuity or lump sum under this chapter.
    (b) The applicant files an application for other than a disability 
annuity more than three months before the date on which the eligible 
person's annuity can begin.
    (c) The applicant does not submit the evidence required under this 
chapter to establish eligibility for an annuity or lump sum.



Sec. 217.31  Applicant's right to appeal denial.

    Each applicant is given the right to appeal the denial of his or her 
application if he or she does not agree with the Board's decision. The 
appeals process is explained in part 260 of this chapter.

[[Page 174]]



PART 218--ANNUITY BEGINNING AND ENDING DATES--Table of Contents




                           Subpart A--General

Sec.
218.1  Introduction.
218.2  Definitions.
218.3  When an employee disappears.

                    Subpart B--When an Annuity Begins

218.5  General rules.
218.6  How to choose an annuity beginning date.
218.7  When chosen annuity beginning date is more than three months 
          after filing date.
218.8  When an individual may change the annuity beginning date.
218.9  When an employee annuity begins.
218.10  When a supplemental annuity begins.
218.11  When a spouse annuity begins.
218.12  When a divorced spouse annuity begins.
218.13  When a widow(er) annuity begins.
218.14  When a child annuity begins.
218.15  When a parent annuity begins.
218.16  When a surviving divorced spouse annuity begins.
218.17  When a remarried widow(er) annuity begins.

Subpart C--How Work and Special Payments Affect an Employee, Spouse, or 
                 Divorced Spouse Annuity Beginning Date

218.25  Introduction.
218.26  Work started after annuity beginning date.
218.27  Vacation pay.
218.28  Sick pay.
218.29  Pay for time lost.
218.30  Separation, displacement or dismissal allowance.

                     Subpart D--When an Annuity Ends

218.35  When an employee age annuity ends.
218.36  When an employee disability annuity ends.
218.37  When a supplemental annuity ends.
218.38  When a spouse annuity ends.
218.39  When a divorced spouse annuity ends.
218.40  When a widow(er) annuity ends.
218.41  When a child annuity ends.
218.42  When a parent annuity ends.
218.43  When a surviving divorced spouse annuity ends.
218.44  When a remarried widow(er) annuity ends.

    Authority: 45 U.S.C. 231f(b)(5).

    Source: 54 FR 30725, July 24, 1989, unless otherwise noted.



                           Subpart A--General



Sec. 218.1  Introduction.

    This part tells when a person's entitlement to a monthly railroad 
retirement annuity begins and ends. Ordinarily, an annuity begins on the 
earliest date permitted under the Railroad Retirement Act (Act). This 
part also tells when and how a person may select a later beginning date. 
Included is an explanation of how work and certain types of special 
payments affect the beginning date of an employee or spouse annuity.



Sec. 218.2  Definitions.

    As used in this part:
    Applicant means a person who signs an application for an annuity for 
himself, herself or for some other person.
    Application means a form described in part 217 of this chapter.
    Award means to process a form to make a payment.
    Claimant means the person for whom an annuity application is filed.
    Filing date means the date on which an application or written 
statement is filed with the Board.
    Tier I benefit means the benefit calculated using the Social 
Security formulas and is based upon earnings, both in and outside the 
railroad industry.
    Tier II benefit means the benefit calculated under a formula found 
in the Act and is based only upon railroad earnings.



Sec. 218.3  When an employee disappears.

    (a) General. If an employee who is entitled to an annuity 
disappears, the employee annuity ends on the last day of the month 
before the month of the disappearance.
    (b) Employee has a current connection. (1) The Board may pay 
survivor benefits from the month of the employee's disappearance if both 
of the following conditions are met at the time of the disappearance:
    (i) The employee has a current connection with the railroad industry 
as defined in part 216 of this chapter, and
    (ii) The employee's spouse is entitled, or would have been entitled 
if he or she had filed an application, to a spouse annuity in the month 
that the employee disappeared.

[[Page 175]]

    (2) If the employee is later found to have been alive during any 
month for which a survivor annuity was paid, the amount of any incorrect 
payment must be recovered under the rules of part 255, Erroneous 
Payments, of this chapter. The incorrect payment is the amount of any 
survivor benefits which were paid minus any spouse benefits which were 
paid minus any spouse benefits that would have been paid.
    (c) Employee has no current connection. If the employee does not 
have a current connection and the employee's spouse is entitled to an 
annuity in the month of the employee's disappearance, the spouse annuity 
will continue to be paid until one of the following events occurs:
    (1) The employee's death is established.
    (2) The spouse annuity ends for another reason.



                    Subpart B--When an Annuity Begins



Sec. 218.5  General rules.

    (a) An annuity begins either on the earliest date permitted by law, 
or on a specific date chosen by the applicant. If the applicant chooses 
a specific date, that date must not be before the earliest date 
permitted by law.
    (b) An annuity may not begin on the thirty-first day of a month, 
unless the claimant would lose benefits if the annuity begins on the 
first day of the following month. No annuity is payable for the thirty-
first day of any month.



Sec. 218.6  How to choose an annuity beginning date.

    (a) When application is filed. The applicant may choose an annuity 
beginning date by--
    (1) Naming the month, day and year in an application accepted by the 
Board; or
    (2) Including with the application a signed statement which tells 
the date (month, day and year) when the annuity should begin.
    (b) After application is filed. After an application is filed, the 
claimant may choose an annuity beginning date by submitting a signed 
statement which tells the month, day and year when the annuity should 
begin.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030 and 3220-0042)



Sec. 218.7  When chosen annuity beginning date is more than three months after filing date.

    If the applicant for any type of annuity other than a disability 
annuity, or a spouse annuity based upon the disabled applicant's 
compensation, chooses an annuity beginning date in a month which is more 
than three months after the date the application is filed, the Board 
will deny the application as explained in part 217 of this chapter. The 
applicant must file a new application no earlier than three months 
before the month he or she wants the annuity to begin.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030 and 3220-0042)



Sec. 218.8  When an individual may change the annuity beginning date.

    (a) Before annuity is awarded. A claimant may change the annuity 
beginning date if--
    (1) The claimant requests the change in a signed statement; and
    (2) The statement is received by the Board on or before the date of 
the claimant's death.
    (b) After annuity is awarded. An award can be reopened to change the 
annuity beginning date to a later date if--
    (1) The annuitant requests the change in a signed statement;
    (2) The statement is received by the Board on or before the date of 
the annuitant's death;
    (3) The annuitant shows that it is to his or her advantage to have a 
later annuity beginning date; and
    (4) All payments made for the period before the later annuity 
beginning date are recovered by cash refund or setoff.



Sec. 218.9  When an employee annuity begins.

    (a) Full-age annuity--employee has completed 10 years but less than 
30 years of service. An employee full-age annuity begins on the later of 
either the date chosen by the applicant or the earliest date permitted 
by law. The

[[Page 176]]

earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the month in which the claimant attains age 65; 
or
    (3) The first day of the sixth month before the month in which the 
application is filed.
    (b) Reduced-age annuity--employee has completed 10 years but less 
than 30 years of service. An employee reduced-age annuity begins on the 
later of either the date chosen by the applicant, or the earliest date 
permitted by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the first full month in which the claimant is 
age 62; or
    (3) The first day of the month in which the application is filed if 
the claimant does not have a spouse (or divorced spouse) who would be 
entitled to a retroactive unreduced spouse (or divorced spouse) annuity. 
If the claimant has such a spouse (or divorced spouse) the claimant's 
annuity can begin on the first day of the month in which the spouse (or 
divorced spouse) annuity begins.
    (c) Disability annuity. An employee disability annuity begins on the 
later of either the date chosen by the applicant or the earliest date 
permitted by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the twelfth month before the month in which the 
application is filed;
    (3) The first day of the sixth month after the month of disability 
onset; or
    (4) The first day of the month of disability onset if the claimant 
was previously entitled to an employee disability annuity which ended 
within five years of the current disability onset month.
    (d) Annuity based on at least 30 years of service. An employee 
annuity based on at least 30 years of service begins on the later of 
either the date chosen by the applicant or the earliest date permitted 
by law. The earliest date permitted by law is the latest of--
    (1) The day after the day the claimant last worked for a railroad 
employer;
    (2) The first day of the first full month in which the claimant is 
age 60 and will accept a reduced annuity;
    (3) The first day of the month in which the claimant attains age 62; 
or
    (4) The first day of the sixth month before the month in which the 
application is filed.



Sec. 218.10  When a supplemental annuity begins.

    An employee supplemental annuity begins on the latest of--
    (a) The beginning date of the employee age or disability annuity;
    (b) The first day of the month in which the employee meets the age 
and years of service requirements as shown in part 216 of this chapter; 
or
    (c) The first day of the twelfth month before the month in which the 
employee disability annuitant under age 65 gives up the right to return 
to work as explained in part 216 of this chapter.



Sec. 218.11  When a spouse annuity begins.

    (a) A spouse annuity begins on the later of either the date chosen 
by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the latest of--
    (i) The day after the day the claimant last worked for a railroad 
employer;
    (ii) The beginning date of the employee annuity;
    (iii) The first day of the month in which the claimant meets the 
marriage requirement as shown in part 216 of this chapter; or
    (iv) The first day of the month in which the employee annuitant 
meets the age requirement to qualify the claimant as shown in part 216 
of this chapter.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;

[[Page 177]]

    (ii) The first day of the month in which the claimant meets the age 
requirement as shown in part 216 of this chapter; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (3) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant becomes 
eligible for a spouse annuity based on having a ``child in care'' as 
shown in part 216 of this chapter; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (4) Reduced-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the first full month in which the spouse is 
age 62 if the employee has less than 30 years of service;
    (iii) The first day of the month in which the spouse is age 60, if 
the employee has at least 30 years of service;
    (iv) The first day of the sixth month before the month in which the 
application is filed; or
    (v) The first day of the month in which the application is filed if 
beginning the annuity in an earlier month would increase the age 
reduction factor applied to the annuity.



Sec. 218.12  When a divorced spouse annuity begins.

    (a) A divorced spouse annuity begins on the later of either the date 
chosen by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the latest of--
    (i) The day after the day the claimant last worked for a railroad 
employer;
    (ii) The beginning date of the employee annuity;
    (iii) The first day of the first full month in which the employee 
annuitant is age 62 if the employee has not been granted a period of 
disability;
    (iv) The first day of the month in which the employee annuitant 
attains age 62 if the employee has been granted a period of disability; 
or
    (v) The first day of the month in which the final decree of divorce 
is effective.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
65;
    (iii) The first day of the twelfth month before the month in which 
the application is filed if the employee is a disability annuitant or 
has been granted a period of disability; or
    (iv) The first day of the sixth full month before the month in which 
the application is filed if the employee is not entitled to a disability 
annuity or a period of disability.
    (3) Reduced-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the first full month the claimant is age 62 if 
the application is filed in or before that month; or
    (iii) The first day of the month in which the application is filed.



Sec. 218.13  When a widow(er) annuity begins.

    (a) A widow(er) annuity begins on the later of either the date 
chosen by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) Full-age annuity. The 
earliest date permitted by law is the latest of--
    (i) The first day of the month in which the employee dies;
    (ii) The first day of the month in which the claimant attains age 
65; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (2) Reduced-age annuity--(i) Widow(er) age 60 through age 62. The 
earliest date permitted by law is the latest of--
    (A) The first day of the month in which the employee dies;
    (B) The first day of the month in which the claimant attains age 60; 
or

[[Page 178]]

    (C) The first day of the sixth month before the month in which the 
application is filed.
    (ii) Widow(er) over age 62 but under age 65. The earliest date 
permitted by law is the latest of--
    (A) The first day of the month in which the employee dies;
    (B) The first day of the month in which the claimant attains age 62 
and one month; or
    (C) The first day of the month in which the application is filed.
    (3) Disability annuity. The earliest date permitted by law is the 
latest of--
    (i) The first day of the month in which the employee dies;
    (ii) The first day of the month in which the claimant attains age 
50;
    (iii) The first day of the twelfth month before the month in which 
the application is filed; or
    (iv) The first day of the sixth month after the month of disability 
onset.
    (4) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The first day of the month in which the employee dies;
    (ii) The first day of the month in which the claimant becomes 
eligible for a widow(er) annuity based on having a ``child in care'' as 
explained in part 216 of this chapter; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.



Sec. 218.14  When a child annuity begins.

    (a) A child annuity begins on the later of either the date chosen by 
the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the later of--
    (i) The first day of the month in which the employee dies; or
    (ii) The first day of the month in which the claimant becomes 
eligible for a child annuity as explained in part 216 of this chapter.
    (2) Child age annuity. The earliest date permitted by law is the 
later of--
    (i) The month shown in paragraph (b)(1) of this section; or
    (ii) The first day of the sixth month before the month in which the 
application is filed.
    (3) Child annuity based on full-time school attendance. The earliest 
date permitted by law is the latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the sixth month before the month in which the 
application is filed;
    (iii) The first day of the month in which the claimant is in full-
time school attendance at an elementary or secondary educational 
institution; or
    (iv) The first day of the month in which the claimant attains age 
18.
    (4) Child disability annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the sixth month before the month in which the 
application is filed;
    (iii) The first day of the month in which the claimant meets the 
definition of disability as explained in part 220; or
    (iv) The first day of the month in which the claimant attains age 
18.



Sec. 218.15  When a parent annuity begins.

    A parent annuity begins on the later of either the date chosen by 
the applicant or the earliest date permitted by law. The earliest date 
permitted by law is the latest of--
    (a) The first day of the month in which the employee dies;
    (b) The first day of the month in which the claimant attains age 60; 
or
    (c) The first day of the sixth month before the month in which the 
application is filed.



Sec. 218.16  When a surviving divorced spouse annuity begins.

    (a) A surviving divorced spouse annuity begins on the later of 
either the date chosen by the applicant or the earliest date permitted 
by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the later of--
    (i) The first day of the month in which the employee dies; or
    (ii) The first day of the month in which the claimant becomes 
eligible for a surviving divorced spouse annuity as shown in part 216 of 
this chapter.

[[Page 179]]

    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
65; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (3) Reduced age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
60; or
    (iii) The first day of the month in which the application is filed 
or the first day of the month preceding the month in which the 
application is filed if the employee died in that preceding month.
    (4) Disability annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
50;
    (iii) The first day of the twelfth month before the month in which 
the application is filed; or
    (iv) The first day of the sixth month after the month of disability 
onset.
    (5) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section; or
    (ii) The first day of the sixth month before the month in which the 
application is filed.



Sec. 218.17  When a remarried widow(er) annuity begins.

    (a) A remarried widow(er) annuity begins on the later of either the 
date chosen by the applicant or the earliest date permitted by law.
    (b) Earliest date permitted by law--(1) General rules. The earliest 
date permitted by law is the later of--
    (i) The first day of the month in which the employee dies; or
    (ii) The first day of the month in which the claimant becomes 
eligible for a remarried widow(er) annuity as shown in part 216 of this 
chapter.
    (2) Full-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
65; or
    (iii) The first day of the sixth month before the month in which the 
application is filed.
    (3) Reduced-age annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
60: or
    (iii) The first day of the month in which the application is filed 
or the first day of the month preceding the month in which the 
application is filed if the employee died in that preceding month.
    (4) Disability annuity. The earliest date permitted by law is the 
latest of--
    (i) The month shown in paragraph (b)(1) of this section;
    (ii) The first day of the month in which the claimant attains age 
50;
    (iii) The first day of the twelfth month before the month in which 
the application is filed; or
    (iv) The first day of the sixth month after the month of disability 
onset.
    (5) ``Child in care'' annuity. The earliest date permitted by law is 
the latest of--
    (i) The month shown in paragraph (b)(1) of this section; or
    (ii) The first day of the sixth month before the month in which the 
application is filed.



Subpart C--How Work and Special Payments Affect an Employee, Spouse, or 
                 Divorced Spouse Annuity Beginning Date



Sec. 218.25  Introduction.

    The rules in this subpart apply only to an employee, spouse, 
divorced spouse, and supplemental annuity. They do not apply to any type 
of survivor annuity.



Sec. 218.26  Work started after annuity beginning date.

    (a) General. An annuity can begin only after an employee, spouse, or 
divorced spouse stops any work for a railroad employer. However, if the 
employee, spouse or divorced spouse

[[Page 180]]

starts work after an ``intent to retire'' is established, that work will 
have no effect on the annuity beginning date. However, an annuity cannot 
be paid for any month the employee, spouse or divorced spouse returns to 
work for a railroad employer.
    (b) Intent to retire--(1) Disability annuity. An ``intent to 
retire'' is established to pay a disability annuity when--
    (i) The employee files for a disability annuity; or
    (ii) The employee gives up all rights to return to work for a 
railroad employee before starting any new work.
    (2) Age annuity. An ``intent to retire'' is established to pay an 
employee age, spouse or divorced spouse annuity when the employee, 
spouse or divorced spouse gives up all rights to return to work for a 
railroad employer before starting any new work.



Sec. 218.27  Vacation pay.

    (a) From railroad employer. Vacation pay may be credited to the 
vacation period due the employee or to the last day of actual work for 
the railroad employer. If the vacation pay is credited to the vacation 
period, the annuity can begin no earlier than the day after the vacation 
period ends. (Part 211 of this chapter discusses how vacation pay is 
credited as compensation.)
    (b) From non-railroad employer. Vacation pay will not affect the 
annuity beginning date.



Sec. 218.28  Sick pay.

    (a) From railroad employer. If the employee is carried on the 
payroll while sick, the annuity can begin no earlier than the day after 
the last day of sick pay. However, sick pay is not considered 
compensation and does not affect the annuity beginning date if it is a 
payment described in Sec. 211.2(c)(6) of these regulations.
    (b) From non-railroad employer. Sick pay will not affect the annuity 
beginning date.



Sec. 218.29  Pay for time lost.

    Pay for time lost because of personal injury must be credited to an 
actual period of time lost. The annuity can begin no earlier than the 
day after that period ends.



Sec. 218.30  Separation, displacement or dismissal allowance.

    (a) General. When an employee receives a separation, displacement or 
dismissal allowance from a railroad employer, the annuity beginning date 
depends on whether the payments are a separation allowance as described 
in paragraph (b) of this section, or monthly compensation payments as 
described in paragraph (c) of this section. (Part 211 of this chapter 
discusses how a separation, displacement or dismissal alowance is 
credited as compensation.)
    (b) Separation allowance. When an employee accepts a separation 
allowance, the employee gives up his or her job rights. Regardless of 
whether a separation allowance is paid in a lump sum or in installments, 
the annuity can begin as early as the day after the day the separation 
allowance is credited.
    (c) Monthly compensation payments. An employee who receives monthly 
compensation payments keeps his or her job rights while the payments are 
being made. The annuity cannot begin until after the end of the period 
for which payments are made.



                     Subpart D--When an Annuity Ends



Sec. 218.35  When an employee age annuity ends.

    An employee annuity based on age ends with the last day of the month 
before the month in which the employee dies.



Sec. 218.36  When an employee disability annuity ends.

    (a) Ending date. An employee annuity based on disability ends with 
the earliest of--
    (1) The last day of the month before the month in which the employee 
dies;
    (2) The last day of the second month following the month in which 
the employee's disability ends; or
    (3) The last day of the month before the month in which the employee 
attains age 65 (the disability annuity is changed to an age annuity).
    (b) Effect of ended disability annuity on eligibility for a later 
annuity. The ending of a disability annuity will not affect an 
employee's rights to receive any annuity to which he or she later 
becomes entitled. When a disability annuity

[[Page 181]]

ends before an employee attains age 65, any additional railroad service 
the employee has after the disability annuity ends can be credited as if 
no annuity had previously been paid.



Sec. 218.37  When a supplemental annuity ends.

    A supplemental annuity ends when the employee age or disability 
annuity ends.



Sec. 218.38  When a spouse annuity ends.

    (a) General rules. A spouse annuity ends with the earliest of--
    (1) The last day of the month before the month in which the spouse 
dies;
    (2) The last day of the month before the month in which the employee 
dies or the employee's entitlement to an annuity ends;
    (3) The last day of the month before the month in which the spouse's 
marriage to the empoyee is ended by absolute divorce, annulment, or 
other judicial action (the spouse may be entitled to a divorced spouse 
annuity as explained in part 216 of this chapter); or
    (4) The month shown in paragraphs (b) and (d) of this section.
    (b) Annuity entitlement based on ``child in care.'' A spouse annuity 
based on having a ``child in care'' ends as shown in this paragraph if 
he or she is not also eligible for a full-age spouse annuity as 
explained in part 216 of this chapter. However, see also paragraph (c) 
of this section. If the spouse is eligible for a full-age spouse annuity 
when he or she is no longer entitled on the basis of a child, his or her 
annuity is changed to a spouse annuity based on age. A spouse annuity 
based on having a ``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraphs (a) and (d) of 
this section;
    (2) The last day of the month before the month in which the child is 
no longer in the spouse's care, as explained in part 216 of this 
chapter;
    (3) The last day of the month before the month in which the child 
attains age 18 and is not disabled;
    (4) The last day of the month before the month in which the child 
marries;
    (5) The last day of the month before the month in which the child 
dies; or
    (6) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 18.
    (c) Tier I benefit entitlement based on ``child in care.'' The tier 
I benefit of a spouse entitled because he or she has a ``child in care'' 
and is not otherwise entitled to a tier I benefit based on age, ends 
with the earliest of--
    (1) The last day of the month shown in paragraphs (a) and (d) of 
this section;
    (2) The last day of the month before the month in which the child is 
no longer in the spouse's care as explained in part 216 of this chapter;
    (3) The last day of the month before the month in which the child 
attains age 16 and is not disabled;
    (4) The last day of the month before the month in which the child 
marries;
    (5) The last day of the month before the month in which the child 
dies; or
    (6) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16.
    (d) Entitlement based on deemed marriage. If the spouse entitlement 
is based on a deemed valid marriage, the annuity ends with the earliest 
of--
    (1) The last day of the month shown in paragraphs (a) and (b) of 
this section;
    (2) The last day of the month before the month in which the deemed 
spouse enters a valid marriage with someone other than the employee; or
    (3) The last day of the month before the month in which the Board 
approves an award to someone else as the employee's legal spouse.



Sec. 218.39  When a divorced spouse annuity ends.

    A divorced spouse annuity ends with the earliest of the last day of 
the month before the month in which the--
    (a) Divorced spouse dies;
    (b) Employee's entitlement to an annuity ends;
    (c) Divorced spouse marries;
    (d) Employee dies; or
    (e) Divorced spouse becomes entitled to a retirement or disability 
insurance benefit under the Social Security Act based on a primary 
insurance amount which equals or exceeds the amount of

[[Page 182]]

the full divorced spouse annuity before reduction for age.



Sec. 218.40  When a widow(er) annuity ends.

    (a) Entitlement based on age. When a widow(er)'s annuity is based on 
age, the annuity ends with the earliest of the last day of the month 
before the month in which--
    (1) The widow(er) dies;
    (2) The widow(er) remarries (the widow(er) may be entitled to 
benefits as a remarried widow(er) as explained in part 216 of this 
chapter);
    (3) The widow(er) becomes entitled to another survivor annuity in a 
larger amount, unless he or she elects to be paid the smaller annuity; 
or
    (4) The Board approves an award to someone else as the employee's 
legal widow(er) if entitlement is based on a deemed valid marriage.
    (b) Disabled widow(er). If entitlement is based on the widow(er)'s 
disability, the annuity ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the second month following the month in which 
the disability ends; or
    (3) The last day of the month before the month in which the 
widow(er) attains age 60 (the disability annuitant then becomes entitled 
to an annuity based upon age).
    (c) Annuity entitlement based on ``child in care.'' A widow(er) 
annuity based on having a ``child in care'' ends as shown in this 
paragraph if he or she is not eligible for a widow(er) annuity based on 
age as explained in part 216 of this chapter. However, see also 
paragraph (d) of this section. If the widow(er) is eligible for a 
widow(er) annuity based on age, when he or she is no longer entitled on 
the basis of having a ``child in care,'' his or her annuity is changed 
to a widow(er) annuity based on age. A widow(er) annuity based on having 
a ``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the widow(er)'s care as explained in part 216 of this 
chapter (in this case entitlement to the annuity does not terminate, but 
no annuity is payable while the child is no longer in care);
    (3) The last day of the month before the month in which the child 
attains age 18 and is not disabled;
    (4) The last day of the month before the month in which the 
widow(er) attains age 65 (the ``child in care'' annuity is changed to an 
age annuity);
    (5) The last day of the month before the month in which the child 
marries;
    (6) The last day of the month before the month in which the child 
dies; or
    (7) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 18.
    (d) Tier I benefit entitlement based on child in care. The tier I 
benefit of a widow(er), entitled because he or she has a ``child in 
care'' and is not otherwise entitled to a tier I benefit based on age, 
ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the widow(er)'s care as explained in part 216 of this 
chapter;
    (3) The last day of the month before the month in which the child 
attains age 16 and is not disabled;
    (4) The last day of the month before the month in which the child 
marries;
    (5) The last day of the month before the month in which the child 
dies; or
    (6) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16.



Sec. 218.41  When a child annuity ends.

    A child annuity ends with the earliest of--
    (a) The last day of the month before the month in which the child 
marries;
    (b) The last day of the month before the month in which the child 
dies;
    (c) The last day of the month before the month in which the child 
attains age 18 if the child is not eligible for an annuity as a disabled 
or student child;
    (d) The last day of the last month in which the child is considered 
a full-time student, as defined in part 216 of this chapter, if the 
child is a full-time student age 18 through 19; or

[[Page 183]]

    (e) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 18.



Sec. 218.42  When a parent annuity ends.

    (a) Tier I. The tier I benefit of a parent annuity ends with the 
earliest of the last day of the month before the month in which the 
parent--
    (1) Dies;
    (2) Becomes entitled to an old age benefit under the Social Security 
Act that is equal to or larger than the tier I benefit of the parent 
annuity before any reduction for the family maximum, unless he or she is 
also entitled to a tier II benefit (reduction for the family maximum is 
discussed in part 228 of this chapter);
    (3) Becomes entitled to another survivor annuity in a larger amount, 
unless he or she elects to be paid the smaller annuity; or
    (4) Remarries after the employee's death, unless he or she marries a 
person who is entitled to Social Security or Railroad Retirement Act 
benefits as a divorced spouse, widow, widower, mother, father, parent, 
or disabled child.
    (b) Tier II. The tier II benefit of a parent annuity ends with the 
earliest of the last day of the month before the month in which the 
parent--
    (1) Dies;
    (2) Remarries after the employee's death; or
    (3) Becomes entitled to another survivor annuity in a larger amount, 
unless he or she elects to be paid the smaller annuity.



Sec. 218.43  When a surviving divorced spouse annuity ends.

    (a) Entitlement based on age. When the surviving divorced spouse 
annuity is based on age, the annuity ends with the earliest of the last 
day of the month before the month in which the surviving divorced 
spouse--
    (1) Dies;
    (2) Becomes entitled to an old age benefit under the Social Security 
Act that is equal to or larger than the amount of the full surviving 
divorced spouse annuity before reduction for age; or
    (3) Becomes entitled to a spouse or survivor annuity in a larger 
amount, unless he or she elects to be paid the smaller annuity.
    (b) Entitlement based on disability. When the surviving divorced 
spouse annuity is based on disability, the annuity ends with the 
earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the second month following the month in which 
the disability ends; or
    (3) The last day of the month before the month in which the 
surviving divorced spouse attains age 65 (the disability annuitant then 
becomes entitled based upon age).
    (c) Entitlement based on ``child in care.'' When the surviving 
divorced spouse annuity is based on having a ``child in care'' as 
explained in part 216 of this chapter, the annuity ends as shown in this 
paragraph unless he or she is at least age 60 and was married to the 
employee for at least 10 years. In that case, the surviving divorced 
spouse annuity based on having a child in care is changed to an annuity 
based on age. If the surviving divorced spouse is not entitled to an 
annuity based on age, the surviving divorced spouse annuity based on 
``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the surviving divorced spouse's care, as explained in part 
216 of this chapter (in this case entitlement to the annuity does not 
terminate, but no annuity is payable while the child is no longer in 
care);
    (3) The last day of the month before the month in which the child 
attains age 16, unless the child is disabled;
    (4) The last day of the month before the month in which the 
surviving divorced spouse remarries unless the marriage is to an 
individual entitled to a retirement, disability, widow(er)'s, father's/
mother's, parent's or child's disability benefit under the Railroad 
Retirement Act or Social Security Act;
    (5) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16; or

[[Page 184]]

    (6) The last day of the month before the month in which the 
surviving divorced spouse attains age 65 (the annuitant then becomes 
entitled to an annuity based upon age).



Sec. 218.44  When a remarried widow(er) annuity ends.

    (a) Entitlement based on age. When the remarried widow(er) annuity 
is based on age, the annuity ends with the earliest of the last day of 
the month before the month in which the remarried widow(er)--
    (1) Dies;
    (2) Becomes entitled to an old age benefit under the Social Security 
Act that is equal to or larger than the amount of the full remarried 
widow(er) annuity before reduction for age or the family maximum (see 
part 228 of this chapter); or
    (3) Becomes entitled to a spouse or survivor annuity in a larger 
amount, unless he or she elects to be paid the smaller annuity.
    (b) Entitlement based on disability. When the remarried widow(er) 
annuity is based on disability, the annuity ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the second month following the month in which 
the disability ends; or
    (3) The last day of the month before the month in which the 
remarried widow(er) attains age 65 (the disability annuitant then 
becomes entitled to an annuity based upon age).
    (c) Entitlement based on ``child in care.'' When the remarried 
widow(er) annuity is based on having a ``child in care,'' as explained 
in part 216 of this chapter, the annuity ends as shown in this paragraph 
unless the remarried widow(er) is at least age 60. In that case, the 
remarried widow(er) annuity based on having a ``child in care'' is 
changed to an annuity based on age. If the remarried widow(er) is not 
entitled to an annuity based on age, the remarried widow(er) annuity 
based on having a ``child in care'' ends with the earliest of--
    (1) The last day of the month shown in paragraph (a) of this 
section;
    (2) The last day of the month before the month in which the child is 
no longer in the remarried widow(er)'s care, as explained in part 216 of 
this chapter (in this case entitlement to the annuity does not terminate 
but no annuity is payable while the child is no longer in care);
    (3) The last day of the month before the month in which the child 
attains age 16, unless the child is disabled;
    (4) The last day of the month before the month in which the 
remarried widow(er) remarries unless the marriage is to an individual 
entitled to a retirement, disability, widow(er)'s, father's/mother's, 
parent's or child's disability benefit under the Railroad Retirement Act 
or Social Security Act;
    (5) The last day of the second month after the month in which the 
child's disability ends, if the child is over age 16; or
    (6) The last day of the month before the month in which the 
remarried widow attains age 65 (the annuitant then becomes entitled to 
an annuity based upon age).



PART 219--EVIDENCE REQUIRED FOR PAYMENT--Table of Contents




                Subpart A--General Evidence Requirements

Sec.
219.1  Introduction.
219.2  Definitions.
219.3  When evidence is required.
219.4  Who is responsible for furnishing evidence.
219.5  Where and how to provide evidence.
219.6  Records as evidence.
219.7  How the Board decides what is convincing evidence.
219.8  Preferred evidence and other evidence.
219.9  Evidence, information, and records filed with the Board.

                  Subpart B--Evidence of Age and Death

219.20  When evidence of age is required.
219.21  Types of evidence to prove age.
219.22  When evidence of death is required.
219.23  Evidence to prove death.
219.24  Evidence of presumed death.

                   Subpart C--Evidence of Relationship

219.30  When evidence of marriage is required.
219.31  Evidence of a valid ceremonial marriage.
219.32  Evidence of a common-law marriage.
219.33  Evidence of a deemed valid marriage.

[[Page 185]]

219.34  When evidence that a marriage has ended is required.
219.35  Evidence that a marriage has ended.
219.36  When evidence of a parent or child relationship is required.
219.37  Evidence of natural parent or child relationship.
219.38  Evidence of stepparent or stepchild relationship.
219.39  Evidence of relationship by legal adoption--parent or child.
219.40  Evidence of relationship by equitable adoption--child.
219.41  Evidence of relationship of grandchild or stepgrandchild.
219.42  When evidence of child's dependency is required.
219.43  Evidence of child's dependency.
219.44  Evidence of relationship of a person other than a parent or 
          child.

                 Subpart D--Other Evidence Requirements

219.50  When evidence of ``living with'' is required.
219.51  Evidence to prove ``living with''.
219.52  When evidence of having a child in care is required.
219.53  Evidence of having a child in care.
219.54  When evidence of school attendance is required.
219.55  Evidence of school attendance for child age 18.
219.56  When evidence of a parent's support is required.
219.57  Evidence of a parent's support.
219.58  When evidence regarding payment of burial expenses is required.
219.59  Evidence of responsibility for or payment of burial expenses.
219.60  When evidence of the employee's permanent home is required.
219.61  Evidence of where the employee had a permanent home.
219.62  When evidence of ``good cause'' is required.
219.63  What evidence is required to establish ``good cause''.
219.64  When evidence may be required for other reasons.
219.65  Other types of evidence that may be required.

    Authority: 45 U.S.C 231f.

    Source: 54 FR 31942, Aug. 3, 1989, unless otherwise noted.



                Subpart A--General Evidence Requirements



Sec. 219.1  Introduction.

    As described in parts 216 (Eligibility for an Annuity), 234 (Lump-
Sum Payments), and 222 (Family Relationships), certain requirements must 
be met before benefits may be paid under the Railroad Retirement Act. 
This part contains the basic rules for evidence that is required to 
support a claimant's claim for monthly or lump-sum benefit payments 
under the Railroad Retirement Act. Part 219 describes when evidence is 
required and what types of documents can be used as evidence. Part 222 
defines and explains family relationships for which evidence 
requirements are stated in part 219. Special evidence requirements for 
disability annuities are found in part 220 of this chapter.



Sec. 219.2  Definitions.

    As used in this subpart--
    Annuity means a recurring payment due an entitled person for a 
calendar month and made to him or her on the first day of the following 
month.
    Apply means to sign a form or statement that the Board accepts as an 
application.
    Claimant means the person who files an application for an annuity or 
lump-sum payment for himself, herself, or some other person.
    Benefit means any employee annuity, spouse annuity, survivor 
annuity, or lump-sum payment under the Railroad Retirement Act.
    Convincing evidence means one or more pieces of evidence that proves 
to the satisfaction of the Board that an individual meets a requirement 
for eligibility for benefits. See Sec. 219.7 for guides the Board uses 
in deciding whether evidence is convincing.
    Eligible means that a person meets all of the requirements for 
payment of benefits but has not yet applied therefor.
    Entitled means that a person has applied for and has proved his or 
her right to payment of benefits.
    Evidence means any record or document or testimony that helps to 
show whether a person is eligible for benefits. It may also be used to 
establish whether the person is still entitled to benefits.
    Representative means a person who acts on behalf of a claimant in 
regard to his or her claim for benefits from the Board and in the 
presentation of evidence to support the claim.

[[Page 186]]



Sec. 219.3  When evidence is required.

    (a) To prove initial eligibility. The Board will ask for evidence to 
prove a claimant is eligible for benefits when he or she applies for 
benefits. Usually the Board will ask the claimant to furnish specific 
kinds of evidence or information by a certain date to prove initial 
eligibility for benefits. If evidence or information is not received by 
that date, the Board may decide that the claimant is not eligible for 
benefits and will deny his or her application.
    (b) To prove continued entitlement. After a claimant establishes 
entitlement to an annuity, the Board may ask that annuitant to produce 
by a certain date information or evidence needed to decide whether he or 
she may continue to receive an annuity or whether the annuity should be 
reduced or stopped. If the information is not received by the date 
specified, the Board may decide that the person is no longer entitled to 
benefits or that his or her annuity should be stopped or reduced.



Sec. 219.4  Who is responsible for furnishing evidence.

    (a) Claimant or representative responsible. When evidence is 
required to prove a person's eligibility for or right to continue to 
receive annuity or lump-sum payments, that claimant or his or her 
representative is responsible for obtaining and submitting the evidence 
to the Board.
    (b) What to do when required evidence will be delayed. When the 
required evidence cannot be furnished within the specified time, the 
claimant or representative who was asked to furnish the evidence or 
information should notify the Board and explain why there will be a 
delay. If the delay is caused by illness, failure to receive the 
information from another source, or a similar situation, the claimant 
will be allowed a reasonable time to secure the evidence or information. 
If the information is not received within a reasonable time as 
determined by the Board, the claimant or representative who was asked to 
furnish the evidence or information will be notified of the effect that 
his or her failure to furnish the evidence or information will have on 
the claimant's eligibility to receive or continue to receive payments.



Sec. 219.5  Where and how to provide evidence.

    (a) When Board office is accessible. A claimant or representative 
should give his or her evidence to an employee of the Railroad 
Retirement Board office where he or she files the application. An 
employee of the Board will tell the claimant or representative what is 
needed and how to get it.
    (b) When Board office is not accessible. A claimant who lives in an 
area where there is no Board office or who is unable to travel to a 
Board office may send evidence to the Board office nearest to where the 
claimant lives. A claimant who lives outside the United States may take 
evidence to the American embassy or consulate or other Foreign Service 
Office nearest to where he or she lives or send it to the headquarters 
of the Board.



Sec. 219.6  Records as evidence.

    (a) General. If a claimant or an annuitant provides an original 
document or record as evidence to prove eligibility or continued 
entitlement to payments, where possible, a Board employee will make a 
photocopy or transcript of these original documents or records and 
return the original documents to the person who furnished them. A 
claimant may also submit certified copies of original records as 
described in paragraph (c) of this section. The Board may also accept 
uncertified copies as described in paragraph (d) of this section.
    (b) Foreign-language documents. If the evidence submitted is a 
foreign-language document, the Board may require that the record be 
translated. An acceptable translation includes, but is not limited to, a 
translation certified by a United States consular official or employee 
of the Department of State authorized to certify evidence, or by an 
employee of the Board or the Social Security Administration.
    (c) Certified copies of original records. The Board will accept 
copies of original records or extracts from records if they are 
certified as true and exact copies of the original by--
    (1) The official custodian of the record;
    (2) A Veterans Administration employee, if the evidence was given to

[[Page 187]]

that agency to obtain veterans benefits;
    (3) A Social Security Administration employee, if the evidence was 
given to that agency to obtain social security benefits;
    (4) A United States Consular Officer, an employee of the Department 
of State, or an employee of the Immigration and Naturalization Service 
authorized to certify evidence received outside the United States; or
    (5) An employee of a state agency or state welfare office authorized 
to certify copies of original records in the agency's or office's files.
    (d) Uncertified copies and facsimiles. In lieu of certified paper 
copies of records or extracts from such official sources as listed in 
paragraph (c) of this section, the Board will accept facsimile copies of 
such records or extracts when the official custodian of such records 
transmits the facsimile directly to an office of the Board and the 
source of the transmittal is clearly identified on the facsimile.

[54 FR 31942, Aug. 3, 1989, as amended at 65 FR 19829, Apr. 13, 2000]



Sec. 219.7  How the Board decides what is convincing evidence.

    When the Board receives evidence, a Board representative examines it 
to see if it is convincing evidence. If it is, no other evidence is 
needed. In deciding whether the evidence is convincing, the Board 
representative decides whether--
    (a) The information contained in the evidence was given by a person 
in a position to know the facts;
    (b) There was any reason to give false information when the evidence 
was created;
    (c) The information contained in the evidence was given under oath, 
or in the presence of witnesses, or with the knowledge that there was a 
penalty for giving false information;
    (d) The evidence was created at the time the event took place or 
shortly after;
    (e) The evidence has been altered or has any erasures on it; and
    (f) The information contained in the evidence agrees with other 
available evidence, including existing Board records.



Sec. 219.8  Preferred evidence and other evidence.

    (a) Preferred evidence. When a claimant submits the type of evidence 
shown as preferred in subparts B and C of this part, the Board will 
generally find it is convincing evidence. This means that unless there 
is information in the Board's records that raises a doubt about the 
evidence, other evidence to prove the same fact will not be needed.
    (b) Other evidence. If preferred evidence is not available, the 
Board will consider any other evidence a claimant furnishes. If the 
other evidence consists of several different records or documents which 
all show the same information, the Board may determine that it is 
convincing evidence even though it is not preferred evidence. If the 
other evidence is not convincing by itself, the claimant will be asked 
to submit additional evidence. If the additional evidence shows the same 
information all the evidence considered together may be convincing 
evidence.
    (c) Board decision. When the Board has convincing evidence of the 
facts that must be proven, or when it is clear that the evidence 
provided does not prove the necessary facts, the Board will make a 
formal decision about the applicant's rights to benefits.



Sec. 219.9  Evidence, information, and records filed with the Board.

    The Railroad Retirement Act provides criminal penalties for any 
persons who misrepresent the facts or make false statements to obtain 
payments for themselves or someone else. All evidence and documents 
given to the Board are kept confidential and are not disclosed to anyone 
but the person who submitted them, except under the rules described in 
part 200 of this chapter.



                  Subpart B--Evidence of Age and Death



Sec. 219.20  When evidence of age is required.

    (a) Evidence of age is required when an employee applies for an 
annuity under the Railroad Retirement Act or for Medicare coverage under 
title XVIII of the Social Security Act.

[[Page 188]]

    (b) Evidence of age is also required from a person who applies for a 
spouse's or divorced spouse's, widow's, widower's, surviving divorced 
spouse's, parent's, or child's annuity under the Railroad Retirement 
Act, or for Medicare coverage under title XVIII of the Social Security 
Act.



Sec. 219.21  Types of evidence to prove age.

    (a) Preferred evidence. The best type of evidence to prove a 
claimant's age is--
    (1) A birth certificate recorded before age 5;
    (2) A church record of birth or baptism recorded before age 5; or
    (3) Notification of registration of birth made before age 5.
    (b) Other evidence of age. If an individual cannot obtain preferred 
evidence of age, he or she will be asked to submit other convincing 
evidence to prove age. The other evidence may be one or more of the 
following records, with the records of highest value listed first:
    (1) Hospital birth record or certificate.
    (2) Physician's or midwife's birth record.
    (3) Bible or other family record.
    (4) Naturalization record.
    (5) Military record.
    (6) Immigration record.
    (7) Passport.
    (8) Selective service registration record.
    (9) Census record.
    (10) School record.
    (11) Vaccination record.
    (12) Insurance record.
    (13) Labor union or fraternal record.
    (14) Employer's record.
    (15) Marriage record.
    (16) A statement signed by the individual giving the reason why he 
or she cannot obtain other convincing evidence of age and the sworn 
statements of two other persons who have personal knowledge of the age 
that the individual is trying to prove.

(Approved by the Office of Management and Budget under control number 
3220-0106)



Sec. 219.22  When evidence of death is required.

    (a) When evidence of the employee's death is required. Evidence to 
prove the employee's death is always required for payment of any type of 
survivor annuity or lump-sum payment based on the deceased employee's 
record. See parts 216 and 234 for types of survivor payments.
    (b) When evidence to prove death of other persons is required. 
Evidence to prove the death of persons other than the empoyee is 
required when--
    (1) A claimant, who is eligible for survivor benefits, dies after 
the employee;
    (2) A residual lump sum (see part 234 of this chapter) is payable 
and a person whom the employee named to receive all or part of this 
payment dies before the employee, or such person dies after the employee 
but before receiving his or her share of the benefit; or
    (3) There is reasonable doubt of the death of--
    (i) Any person who, if alive, has priority over the applicant;
    (ii) Any spouse whose death is alleged to have ended a previous 
marriage, if a later marriage in question cannot be presumed valid under 
state law; or
    (iii) Any person the termination of whose entitlement would increase 
payments to other entitled persons.



Sec. 219.23  Evidence to prove death.

    (a) Preferred evidence of death. The best evidence of a person's 
death is--
    (1) A certified copy of or extract from the public record of death, 
or verdict of the coroner's jury of the state or community where death 
occurred; or a certificate or statement of death issued by a local 
registrar or public health official;
    (2) A signed statement of the funeral director, attending physician, 
or official of an institution where death occurred;
    (3) A certified copy of, or extract from, an official report or 
finding of death made by an agency or department of the United States or 
of a state; or
    (4) If death occurred outside the United States, an official report 
of death by a United States Consul or other authorized employee of the 
State

[[Page 189]]

Department, or a certified copy of the public record of death in a 
foreign country.
    (b) Other evidence of death. If the preferred evidence of death 
cannot be obtained, the individual who must furnish evidence of death 
will be asked to explain the reason therefor and to submit other 
convincing evidence, such as sworn statements of at least two persons 
who have personal knowledge of the death. These persons must be able to 
swear to the date, time, place, and cause of death.

(Approved by the Office of Management and Budget under control number 
3220-0077)



Sec. 219.24  Evidence of presumed death.

    When a person cannot be proven dead but evidence of death is needed, 
the Board may presume he or she died at a certain time if the Board 
receives the following evidence:
    (a) A certified copy of, or extract from, an official report or 
finding by an agency or department of the United States that a missing 
person is presumed to be dead as stated in Federal law (5 U.S.C. 5565). 
Unless other evidence is submitted showing an actual date of death, the 
Board will use the date on which the person was reported missing as the 
date of death.
    (b) Signed statements by those in a position to know that facts and 
other records which show that the person has been absent from his or her 
residence for no apparent reason and has not been heard from for at 
least 7 years. If there is no evidence available that that person 
continued in life after the date of disappearance, the Board will use as 
the date of death the date the person disappeared.
    (c) When a person has been missing for less than 7 years but may be 
presumed dead due to drowning or common disaster (fire, accident, etc.), 
signed statements from the applicant and individuals who know the 
circumstances surrounding the occurrence leading to the person's 
disappearance. The best evidence is statements from individuals who 
witnessed the occurrence or saw the missing person at the scene of the 
occurrence shortly before it happened.



                   Subpart C--Evidence of Relationship



Sec. 219.30  When evidence of marriage is required.

    (a) When an application is filed for benefits. Documentary evidence 
of marriage is required when an individual files for a monthly annuity, 
lump-sum death payment, residual lump sum, or Medicare coverage, as the 
wife, husband, widow, widower, divorced spouse or surviving divorced 
spouse, or stepparent of the employee. A claimant may also be required 
to submit evidence of another person's marriage when that person's 
marriage is necessary to determine the applicant's entitlement to 
benefits under the Railroad Retirement Act.
    (b) State law. In deciding whether the marriage to the employee is 
valid or not, in a case where the employee is living, the Board will 
follow the law of the state where the employee had a permanent home when 
the applicant filed an application; in a case where the employee is 
dead, the Board will follow the law of the state where the employee had 
a permanent home when he or she died.
    (c) Types of evidence. What evidence will be required depends on 
whether the employee's marriage was a ceremonial marriage, a common-law 
marriage, or a marriage that can be deemed to be valid.



Sec. 219.31  Evidence of a valid ceremonial marriage.

    (a) Preferred evidence. Preferred evidence of a ceremonial marriage 
is--
    (1) A copy of the public record of the marriage, certified by the 
custodian of the record or by a Board employee;
    (2) A copy of a church record of the marriage certified by the 
custodian of the record or by a Board employee; or
    (3) The original certificate of marriage.
    (b) Other evidence of a ceremonial marriage. If preferred evidence 
of a ceremonial marriage cannot be obtained, the applicant must state 
the reason therefor in writing and submit either--
    (1) A sworn statement of the clergyman or official who performed the 
marriage ceremony; or

[[Page 190]]

    (2) Other convincing evidence, such as the sworn statements of at 
least two persons who have direct knowledge of the marriage, preferably 
eyewitnesses to the marriage ceremony.

(Approved by the Office of Management and Budget under control number 
3220-0140)



Sec. 219.32  Evidence of a common-law marriage.

    (a) Preferred evidence. Evidence of a common-law marriage must give 
the reasons why the informant believes that a marriage exists. If the 
information described in this paragraph is not furnished on a form 
provided by the Board, it must be submitted in the form of a sworn 
statement. Preferred evidence of a common-law marriage is one of the 
following:
    (1) If both the husband and wife are alive, each shall sign a 
statement and get signed statements from one blood relative of each. The 
statement of another individual may be submitted for each statement the 
husband or wife is unable to get from a relative. Each signed statement 
should show--
    (i) That the husband and wife believed they were married;
    (ii) The basis for this belief; and
    (iii) That the husband and wife have presented themselves to the 
public as husband and wife.
    (2) If either the husband or wife is dead, the surviving spouse 
shall furnish a signed statement and signed statements from two blood 
relatives of the dead spouse. The surviving spouse's statement should 
show that he or she and the dead spouse believed themselves to be 
married, the basis for this belief, and that they presented themselves 
to the public as husband and wife. The statements from relatives of the 
dead spouse should support the surviving spouse's statement.
    (3) If both husband and wife are dead, the applicant shall get a 
signed statement from one blood relative of each dead spouse. Each 
statement should show that the husband and wife believed themselves to 
be married, the basis for this belief, and that they presented 
themselves to the public as husband and wife.
    (4) Statements by relatives and other individuals described in 
paragraphs (a)(1), (2) and (3) of this section are not required when--
    (i) The husband and wife entered into a ceremonial marriage which 
was void because of a legal impediment to the marriage;
    (ii) After the impediment was removed, the husband and wife 
continued to live together as man and wife until the employee filed an 
application or one of them died; and
    (iii) A valid common-law marriage was established, under the law of 
the State in which they lived, by their continuing to live together as 
man and wife.
    (b) Other evidence of common-law marriage. When preferred evidence 
of a common-law marriage cannot be obtained, the claimant will be asked 
to explain the reason therefor and to furnish other convincing evidence 
of the marriage.

(Approved by the Office of Management and Budget under control number 
3220-0021)



Sec. 219.33  Evidence of a deemed valid marriage.

    (a) Preferred evidence. Preferred evidence of a deemed valid 
marriage is--
    (1) Evidence of a ceremonial marriage as described in Sec. 219.31;
    (2) If both the employee and spouse are alive, the spouse's signed 
statement that he or she went through the ceremony in good faith and his 
or her reasons for believing the marriage was valid; or if the employee 
is dead, the widow or widower's signed statement to that effect;
    (3) If required to remove a reasonable doubt, the signed statements 
of other persons who have information about what the parties knew about 
any previous marriage or other facts showing whether the parties went 
through the marriage ceremony in good faith; and
    (4) Evidence that the parties were living in the same household when 
the employee applied for payments; or, if the employee is dead, when he 
or she died. See Sec. 219.51 for the evidence required to demonstrate 
living in the same household.
    (b) Other evidence of a deemed valid marriage. If preferred evidence 
of a deemed valid marriage cannot be obtained, the claimant must explain 
the

[[Page 191]]

reason therefor and submit other convincing evidence of the marriage.

(Approved by the Office of Management and Budget under control number 
3220-0140)



Sec. 219.34  When evidence that a marriage has ended is required.

    Evidence of how a previous marriage ended may be required to 
determine whether a later marriage is valid. If a widow or widower 
remarried after the employee's death and that marriage was annulled, 
evidence of the annulment is required. If the claimant is a divorced 
spouse or surviving divorced spouse, evidence to prove a final or 
absolute divorce from the employee may be required.



Sec. 219.35  Evidence that a marriage has ended.

    (a) Preferred evidence. Preferred evidence that a marriage has ended 
is--
    (1) A certified copy of the decree of divorce or annulment; or
    (2) Evidence of the death (See Sec. 219.23) of a party to the 
marriage.
    (b) Other evidence that a marriage has ended. If preferred evidence 
that the marriage has ended cannot be obtained, the claimant must 
explain the reason therefor and submit other convincing evidence that 
the marriage has ended.

(Approved by the Office of Management and Budget under control numbers 
3220-0021 and 3220-0140)



Sec. 219.36  When evidence of a parent or child relationship is required.

    (a) When parent or child applies. A person who applies for a 
parent's or child's annuity or for Medicare coverage is required to 
submit evidence of his or her relationship to the deceased employee.
    (b) When individual with child in care applies. An individual who 
applies for an annuity because he or she has a child of the employee in 
care is required to submit evidence of the child's relationship to the 
employee.
    (c) Evidence required depends on relationship. The evidence the 
Board will require depends on whether the person is the employee's 
natural child, adopted child, stepchild, grandchild, or stepgrandchild; 
or whether the person is the employee's natural parent or adopting 
parent.



Sec. 219.37  Evidence of natural parent or child relationship.

    (a) Preferred evidence. If the claimant is the natural parent of the 
employee, preferred evidence of the ralationship is a copy of the 
employee's public or religious birth record. If the claimant is the 
natural child of the employee, preferred evidence of the relationship is 
a copy of the child's public or religious birth record.
    (b) Other evidence of parent or child relationship. (1) When 
preferred evidence of a parent or child relationship cannot be obtained, 
the Board may ask the applicant for evidence of the employee's marriage 
or of the marriage of the employee's parents if that is needed to remove 
any reasonable doubt of the relationship.
    (2) To show that a person is the child of the employee, the person 
may be asked for evidence that he or she would be able to inherit the 
employee's personal property under the law of the state where the 
employee died or had a permanent home.
    (3) In some instances the Board may ask for a signed statement from 
the employee that a person is his or her natural child, or for a copy of 
a court order showing that the person has been declared to be the child 
of the employee, or for a copy of a court order requiring the employee 
to contribute to the person's support because the person is his or her 
child, or for any other supporting evidence which may be required in 
order to establish that the person is the child of the employee.



Sec. 219.38  Evidence of stepparent or stepchild relationship.

    If the claimant is a stepparent or stepchild of the employee, the 
Board will ask for the evidence described in Sec. 219.37 or Sec. 219.39 
which shows the person's natural or adoptive relationship to the 
employee's husband, wife, widow, or widower. The Board will also ask for 
evidence of the husband's, wife's, widow's or widower's marriage to the 
employee (See Secs. 219.30-219.33).



Sec. 219.39  Evidence of relationship by legal adoption--parent or child.

    (a) Preferred evidence. Preferred evidence of legal adoption is--

[[Page 192]]

    (1) A copy of the decree or order of adoption, certified by the 
custodian of the record;
    (2) A photocopy of the decree or order of adoption; or
    (3) If the widow or widower adopted the child after the employee's 
death, the evidence described in paragraph (a)(1) or (2) of this 
section; the widow's or widower's statement as to whether the child was 
living in the same household with the employee when the employee died 
(see Secs. 219.50 and 219.51); what support, if any, the child was 
getting from another person or organization; and if the widow or widower 
had a deemed valid marriage with the employee, evidence of that marriage 
(see Sec. 219.33).
    (b) Other evidence of legal adoption. In some states the record of 
adoption proceedings is sealed and cannot be obtained without a court 
order. In this event, the Board will accept as proof of adoption an 
official notice received by the adopting parents at the time of adoption 
that the adoption has been completed or a birth certificate issued as a 
result of the adoption proceeding.



Sec. 219.40  Evidence of relationship by equitable adoption--child.

    (a) Preferred evidence. If the claimant is a person who claims to be 
the equitably adopted child of the employee (or of the employee's wife, 
widow, widower, or husband), as defined in part 222 of this chapter, the 
Board will ask for evidence of the agreement to adopt if it is in 
writing. The Board will also ask for written statements from the child's 
natural parents as well as adopting parents concerning the child's 
relationship to the adopting parents.
    (b) Other evidence. If the agreement to adopt was not in writing, 
the Board will require other convincing evidence about the child's 
relationship to the adopting parents.

(Approved by the Office of Management and Budget under control number 
3220-0040)



Sec. 219.41  Evidence of relationship of grandchild or stepgrandchild.

    If the child is the grandchild or stepgrandchild of the employee, 
the Board will require the kind of evidence described in Secs. 219.36-
219.38 that shows that child's relationship to his or her parents and 
his or her parents' relationship to the employee.



Sec. 219.42  When evidence of child's dependency is required.

    Evidence of a child's dependency on the employee is required when--
    (a) The employee is receiving an annuity that can be increased under 
the social security overall minimum (see part 229 of this chapter) by 
including a child, grandchild or a spouse who has a child in his or her 
care;
    (b) A wife under age 65 applies for a full spouse annuity because 
she has a child or a grandchild of the employee in her care; or
    (c) A child or someone in behalf of a child applies for a child's 
annuity based on the deceased employee's record.



Sec. 219.43  Evidence of child's dependency.

    (a) When the dependency requirement must be met. Usually the 
dependency requirement must be met at one of the times shown in part 222 
of this chapter.
    (b) Natural or adopted. If the child is the employee's natural or 
adopted child, the Board may ask for the following evidence:
    (1) A signed statement by someone who knows the facts that confirms 
that the child is the natural or adopted child.
    (2) If the child was adopted by someone else while the employee was 
alive but the adoption was annulled, the Board may require a certified 
copy of the annulment decree or other convincing evidence of the 
annulment.
    (3) A signed statement by someone having personal knowledge of the 
circumstances showing when and where the child lived with the employee 
and when and why they may have lived apart; and showing what 
contributions the employee made to the child's support and how the 
contributions were made.
    (c) Stepchild. If the child is the employee's stepchild, the Board 
may ask for the following evidence;
    (1) A signed statement by someone having personal knowledge of the 
circumstances showing when and where the child lived with the employee 
and when and why they may have lived apart.

[[Page 193]]

    (2) A signed statement by someone having personal knowledge of the 
circumstances showing what contributions the employee made to the 
child's support, the child's ordinary living costs and the income and 
support the child received from any other source during the relevant 
time as required by Sec. 222.55 of this chapter.
    (d) Grandchild or stepgrandchild. If the child is the employee's 
grandchild or stepgrandchild, the Board will require the evidence 
described in paragraph (c) of this section. The Board will also require 
evidence of the employee's death or disability.

(Approved by the Office of Management and Budget under control number 
3220-0099)



Sec. 219.44  Evidence of relationship of a person other than a parent or child.

    (a) Claimants other than child or parent. When any person other than 
a child or parent applies for benefits due because of the employee's 
death or because of the death of a beneficiary, the Board may ask the 
claimant for evidence of relationship.
    (b) Evidence required. The type of evidence required is dependent 
upon the amount payable and the claimant's relationship to the deceased 
employee or beneficiary.
    (c) More than one eligible and claimants agree on relationship. If 
there is more than one person eligible for benefits, and all eligible 
persons agree on the relationship of each other eligible person, only 
one of the persons will be asked to furnish proof of relationship. For 
example, if brothers and sisters of a deceased employee file 
applications for the residual lump sum or annuity payments due but 
unpaid at death, only one of them need file proof of relationship if 
their applications indicate that there is no dispute as to who are the 
brothers and sisters of the employee.



                 Subpart D--Other Evidence Requirements



Sec. 219.50  When evidence of ``living with'' is required.

    Evidence of ``living with'' (see part 222 of this chapter on Family 
Relationships) is required when--
    (a) The employee's spouse applies for a spouse's annuity as a deemed 
spouse; or
    (b) The employee's legal widow or widower applies for a lump-sum 
death payment, annuity payments due the employee but unpaid at death, or 
a residual lump-sum death payment on the basis of that relationship, or 
the employee's deemed widow or widower applies for a widow's or 
widower's annuity.



Sec. 219.51  Evidence to prove ``living with''.

    The following evidence may be required:
    (a) If the employee is alive, both the employee and his or her 
spouse must sign a statement that they are living together in the same 
household when the spouse applies for a spouse's annuity as a deemed 
spouse.
    (b) If the employee is dead, the widow or widower must sign a 
statement showing whether he or she was living together in the same 
household with the employee when the employee died.
    (c) If the employee and spouse, widow or widower were temporarily 
living apart, a signed statement is required explaining where each was 
living, how long the separation lasted, and the reason for separation. 
If more evidence is required to remove any reasonable doubt about the 
temporary nature of the separation, the Board may ask for sworn 
statements of other persons having personal knowledge of the facts or 
for other convincing evidence.
    (d) If the employee and spouse, widow, or widower were not living in 
the same household, the Board may ask for evidence that the employee was 
contributing to or under court order to contribute to the support of his 
or her spouse, widow, or widower. Evidence of contributions or a 
certified copy of the order for support may be requested. The court 
order for support must be in effect on the day the spouse applies for a 
spouse's annuity or, if the employee is dead, the day of the employee's 
death. This type of evidence does not apply for purposes of establishing 
a deemed valid marriage. (See part 222 of this chapter.) A deemed 
spouse, widow, or widower must furnish evidence as

[[Page 194]]

described in paragraphs (a) and (b) of this section.

(Approved by the Office of Management and Budget under control number 
3220-0030)



Sec. 219.52  When evidence of having a child in care is required.

    A person who applies for a spouse's, widow's or widower's, or 
surviving divorced spouse's annuity on the basis of caring for a child, 
or for an increase under the social security overall minimum guaranty 
provision based on caring for a child, is required to furnish evidence 
that he or she has in care an eligible child of the employee as 
described in part 222 of this chapter. What evidence the Board will 
require depends upon whether the child is living with the applicant or 
with someone else.



Sec. 219.53  Evidence of having a child in care.

    (a) Preferred evidence of having a child in care. Preferred evidence 
of having a child in care is--
    (1) If the child is living with the applicant, the claimant's signed 
statement showing that the child is living with him or her.
    (2) If the child is living with someone else--
    (i) The claimant's signed statement showing with whom the child is 
living and why. The claimant must also show when the child last lived 
with him or her, how long the separation will last, and what care and 
contributions he or she provides for the child; and
    (ii) The signed statement of the person with whom the child is 
living showing what care the claimant provides and the sources and 
amounts of support received by the child. If the child is in an 
institution, an official thereof should sign the statement. A copy of 
any court order or written agreement showing who has custody of the 
child should be provided to the Board.
    (b) Other evidence. If the preferred evidence described in paragraph 
(a) of this section cannot be obtained, the Board will require other 
convincing evidence that the applicant has the child in care.

(Approved by the Office of Management and Budget under control numbers 
3220-0030 and 3220-0042)



Sec. 219.54  When evidence of school attendance is required.

    If a child age 18 applies for payments as a student, the Board will 
require evidence that the child is attending elementary or secondary 
school. After the child has started his or her school attendance, the 
Board may also ask for evidence that he or she is continuing to attend 
school full time. To be acceptable to the Board, the child must submit 
the evidence of school attendance within 90 days of the date the 
evidence is requested by the Board.



Sec. 219.55  Evidence of school attendance for child age 18.

    The child will be asked to submit (on a form furnished by the Board 
or other form acceptable to the Board) the following evidence:
    (a) A signed statement that he or she is attending school full-time 
and is not being paid by an employer to attend school; and
    (b) A statement from an official of the school verifying that the 
child is attending school full-time. The Board may also accept as 
evidence a letter of acceptance from the school, receipted bill, or 
other evidence showing that the child has enrolled or been accepted at 
that school or is continuing in full-time attendance.

(Approved by the Office of Management and Budget under control numbers 
3220-0030, 3220-0083, and 3220-0123)



Sec. 219.56  When evidence of a parent's support is required.

    If a person applies for a parent's annuity, the Board will require 
evidence to show that the parent received at least one-half of his or 
her support from the employee in the one-year period before--
    (a) The employee died; or
    (b) The beginning of a period of disability if the employee had a 
period of disability which did not end before his or her death.



Sec. 219.57  Evidence of a parent's support.

    (a) The Board will require the parent's signed statement showing his 
or her income, any other sources of support, the amount from each source 
and

[[Page 195]]

his or her expenses during the one-year period.
    (b) The Board may also ask the parent for signed statements from 
other people who know the facts about his or her sources of support.
    (c) If the statements described in paragraphs (a) and (b) of this 
section cannot be obtained, the Board will require other convincing 
evidence that the parent is receiving one-half of his or her support 
from the employee.

(Approved by the Office of Management and Budget under control number 
3220-0099)



Sec. 219.58  When evidence regarding payment of burial expenses is required.

    If a person applies for the lump-sum death payment because he or she 
is responsible for paying the funeral home or burial expenses of the 
employee or because he or she has paid some or all of these expenses, 
the Board will require evidence of such payment.



Sec. 219.59  Evidence of responsibility for or payment of burial expenses.

    The Board will ask for the following evidence:
    (a) The claimant's signed statement showing--
    (1) That he or she accepted responsibility for the funeral home 
expenses or paid some or all of these expenses or other burial expenses; 
or the name and address of the person who accepted responsibility for or 
paid these expenses;
    (2) Total funeral home expenses and, if necessary, the total of 
other burial expenses; and if someone else paid part of the expenses, 
that person's name, address, and the amount he or she paid;
    (3) The amount of cash or property the applicant expects to receive 
as repayment for any burial expenses he or she paid; and whether anyone 
has applied for any burial allowance from the Veterans Administration or 
other governmental agency for these expenses; and
    (4) If the claimant is an owner or official of a funeral home, a 
signed statement from anyone, other than employee of the home, who 
helped make the burial arrangements showing whether he or she accepted 
responsibility for paying the burial expenses.
    (b) Unless the claimant is an owner or official of a funeral home, a 
signed statement from the owner or official of the funeral home which 
handled the deceased employee's funeral and, if necessary, from those 
who supplied other burial goods or services which shows--
    (1) The name and address of everyone who accepted responsibility for 
or paid any part of the burial expenses; and
    (2) Information which the owner or official of the funeral home and, 
if necessary, any other supplier has about the expenses and payments 
described in paragraphs (a)(2) and (a)(3) of this section.

(Approved by the Office of Management and Budget under control number 
3220-0031)



Sec. 219.60  When evidence of the employee's permanent home is required.

    The Board may ask for evidence to prove where the employee had a 
permanent home at the time of filing an application or, if earlier, at 
the time the employee died if--
    (a) The claimant is applying for payments as the employee's wife, 
husband, widow, widower, parent, or child; and
    (b) The claimant's relationship to the employee depends upon the 
laws of the state where the employee had his or her permanent home when 
his or her wife or husband applied for an annuity or when the employee 
died.



Sec. 219.61  Evidence of where the employee had a permanent home.

    The Board will ask for the following evidence to establish the 
employee's permanent home:
    (a) The claimant's signed statement showing what the employee 
considered to be his or her permanent home.
    (b) If the statement in paragraph (a) of this section or other 
evidence raises a reasonable doubt in establishing the employee's 
permanent home, evidence of where the employee paid personal property 
taxes, real estate taxes, or income taxes; or evidence where the 
employee voted; or other convincing evidence.



Sec. 219.62  When evidence of ``good cause'' is required.

    The principle of ``good cause'', as defined in part 217 of this 
chapter, is applied by the Board in determining whether to allow an 
application which is submitted more than two years after

[[Page 196]]

the employee's death as acceptable for the lump-sum death payment or for 
an annuity unpaid at death, or to accept the proof of support required 
for entitlement to a parent's annuity if such proof is filed more than 
two years after the employee's death.



Sec. 219.63  What evidence is required to establish ``good cause''.

    The Board will ask for the following evidence of ``good cause'':
    (a) The claimant's signed statement explaining why he or she did not 
file the application for lump-sum death payment or annuity unpaid at 
death or the parent's proof of support within the specified two-year 
period.
    (b) If the statement in paragraph (a) of this section or other 
evidence raises a reasonable doubt as to whether there was good cause, 
other convincing evidence to establish ``good cause''.



Sec. 219.64  When evidence may be required for other reasons.

    (a) The Board will require evidence of the appointment of a legal 
representative when--
    (1) The employee's estate is entitled to a lump-sum death payment, 
annuity unpaid at death, or residual lump sum, and an executor or 
administrator has been appointed for the estate; or
    (2) A minor child or incompetent is entitled to an annuity or lump-
sum payment and a guardian, trustee, committee, or conservator has been 
appointed to act in his or her behalf.
    (b) The Board will require evidence of an annuitant's earnings when 
the information that he or she furnished the Board does not agree with 
the earnings data furnished by the Social Security Administration or 
secured from other sources, and the annuitant maintains that the 
earnings data from the Social Security Administration or from other 
sources is not correct.
    (c) The Board will require evidence to establish the amounts paid as 
a public service pension, public disability benefit, or worker's 
compensation to an employee, spouse, widow, or widower when the pension, 
public disability benefit, or worker's compensation affects the amount 
of his or her annuity.

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0136, and 3220-0154)
    (d) The Board will require evidence to reconcile discrepancies 
between the information furnished by the claimant and information 
already in the records of the Board, the Social Security Administration, 
or other public agencies. Such discrepancies may be differences in name, 
date or place of birth, periods of employment, or other identifying 
data.



Sec. 219.65  Other types of evidence that may be required.

    (a) The Board may ask for a statement from an employer listing the 
annuitant's earnings by months and explaining any payments made to the 
annuitant when he or she was not working.
    (b) The Board may ask for copies of award notices from a public 
agency showing the amounts of periodic payments and the period covered 
by each payment.
    (c) The Board may ask for a statement from the applicant explaining 
discrepancies and may ask for sworn statements from persons who have 
personal knowledge of the facts or for any other convincing evidence.
    (d) The Board may ask for proof of the court appointment of a legal 
representative, such as:
    (1) Certified copy of letters of appointment;
    (2) ``Short'' certificate;
    (3) Certified copy of order of appointment; or
    (4) Any official document issued by the clerk or other proper 
official of the appointing court.



PART 220--DETERMINING DISABILITY--Table of Contents




                           Subpart A--General

Sec.
220.1  Introduction of part.
220.2  The basis for the Board's disability decision.
220.3  Determinations by other organizations and agencies.

[[Page 197]]

        Subpart B--General Definitions of Terms Used In This Part

220.5  Definitions as used in this part.

 Subpart C--Disability Under the Railroad Retirement Act for Work in an 
                 Employee's Regular Railroad Occupation

220.10  Disability for work in an employee's regular railroad 
          occupation.
220.11  Definitions as used in this subpart.
220.12  Evidence considered.
220.13  Establishment of permanent disability for work in regular 
          railroad occupation.
220.14  Weighing of evidence.
220.15  Effects of work on occupational disability.
220.16  Responsibility to notify the Board of events which affect 
          disability.
220.17  Recovery from disability for work in the regular occupation.
220.18  The reentitlement period.
220.19  Payment of the disability annuity during the trial work period 
          and the reentitlement period.
220.20  Notice that an annuitant is no longer disabled.
220.21  Initial evaluation of a previous occupational disability.

Subpart D--Disability Under the Railroad Retirement Act for Any Regular 
                               Employment

220.25  General.
220.26  Disability for any regular employment, defined.
220.27  What is needed to show an impairment.
220.28  How long the impairment must last.
220.29  Work that is considered substantial gainful activity.
220.30  Special period required for eligibility of widow(er)s.

Subpart E--Disability Determinations Governed by the Regulations of the 
                     Social Security Administration

220.35  Introduction.
220.36  Period of disability.
220.37  When a child's disability determination is governed by the 
          regulations of the Social Security Administration.
220.38  When a widow(er)'s disability determination is governed by the 
          regulations of the Social Security Administration.
220.39  Disability determination for a surviving divorced spouse or 
          remarried widow(er).

                    Subpart F--Evidence of Disability

220.45  Providing evidence of disability.
220.46  Medical evidence.
220.47  Purchase of existing medical evidence.
220.48  If the claimant fails to submit medical or other evidence.

                  Subpart G--Consultative Examinations

220.50  Consultative examinations at the Board's expense.
220.51  Notice of the examination.
220.52  Failure to appear at a consultative examination.
220.53  When the Board will purchase a consultative examination and how 
          it will be used.
220.54  When the Board will not purchase a consultative examination.
220.55  Purchase of consultative examinations at the reconsideration 
          level.
220.56  Securing medical evidence at the hearings officer hearing level.
220.57  Types of purchased examinations and selection of sources.
220.58  Objections to the designated physician or psychologist.
220.59  Requesting examination by a specific physician, psychologist or 
          institution--hearings officer hearing level.
220.60  Diagnostic surgical procedures.
220.61  Informing the examining physician or psychologist of examination 
          scheduling, report content and signature requirements.
220.62  Reviewing reports of consultative examinations.
220.63  Conflict of interest.
220.64  Program integrity.

                   Subpart H--Evaluation of Disability

220.100  Evaluation of disability for any regular employment.
220.101  Evaluation of mental impairments.
220.102  Non-severe impairment(s), defined.
220.103  Two or more unrelated impairments--initial claims.
220.104  Multiple impairments.
220.105  Initial evaluation of a previous disability.

                    Subpart I--Medical Considerations

220.110  Listing of Impairments in appendix 1 of this part.
220.111  Medical equivalence.
220.112  Conclusions by physicians concerning the claimant's disability.
220.113  Symptoms, signs, and laboratory findings.
220.114  Evaluation of symptoms, including pain.
220.115  Need to follow prescribed treatment.

                 Subpart J--Residual Functional Capacity

220.120  Residual functional capacity, defined.

[[Page 198]]

220.121  Responsibility for assessing and determining residual 
          functional capacity.

                  Subpart K--Vocational Considerations

220.125  When vocational background is considered.
220.126  Relationship of ability to do work and residual functional 
          capacity.
220.127  When the only work experience is arduous unskilled physical 
          labor.
220.128  Age as a vocational factor.
220.129  Education as a vocational factor.
220.130  Work experience as a vocational factor.
220.131  Work which exists in the national economy.
220.132  Physical exertion requirements.
220.133  Skill requirements.
220.134  Medical-vocational guidelines in appendix 2 of this part.

                 Subpart L--Substantial Gainful Activity

220.140  General.
220.141  Substantial gainful activity, defined.
220.142  General information about work activity.
220.143  Evaluation guides for an employed claimant.
220.144  Evaluation guides for a self-employed claimant.
220.145  Impairment-related work expenses.

           Subpart M--Disability Annuity Earnings Restrictions

220.160  How work for a railroad employer affects a disability annuity.
220.161  How work affects an employee disability annuity.
220.162  Earnings report.
220.163  Employee penalty deductions.
220.164  Employee end-of-year adjustment.

  Subpart N--Trial Work Period and Reentitlement Period for Annuitants 
                   Disabled for Any Regular Employment

220.170  The trial work period.
220.171  The reentitlement period.

Subpart O--Continuing or Stopping Disability Due to Substantial Gainful 
                     Activity or Medical Improvement

220.175  Responsibility to notify the Board of events which affect 
          disability.
220.176  When disability continues or ends.
220.177  Terms and definitions.
220.178  Determining medical improvement and its relationship to the 
          annuitant's ability to do work.
220.179  Exceptions to medical improvement.
220.180  Determining continuation or cessation of disability.
220.181  The month in which the Board will find that the annuitant is no 
          longer disabled.
220.182  Before a disability annuity is stopped.
220.183  Notice that the annuitant is not disabled.
220.184  If the annuitant becomes disabled by another impairment(s).
220.185  The Board may conduct a review to find out whether the 
          annuitant continues to be disabled.
220.186  When and how often the Board will conduct a continuing 
          disability review.
220.187  If the annuitant's medical recovery was expected and the 
          annuitant returned to work.

Appendix 1 to Part 220--Listing of Impairments
Appendix 2 to Part 220--Medical-Vocational Guidelines
Appendix 3 to Part 220--Railroad Retirement Board Occupational 
          Disability Standards

    Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.

    Source: 56 FR 12980, Mar. 28, 1991, unless otherwise noted.



                           Subpart A--General



Sec. 220.1  Introduction of part.

    (a) This part explains how disability determinations are made by the 
Railroad Retirement Board. In some determinations of disability 
entitlement, as described below, the Board makes the decision of 
disability under the Railroad Retirement Act based on the regulations 
set out in this part. However, in certain other determinations of 
disability entitlement (as also described below) the Board has the 
authority to decide whether the claimant is disabled as that term is 
defined in the Social Security Act and the regulations of the Social 
Security Administration.
    (b) In order for a claimant to become entitled to a railroad 
retirement annuity based on disability for his or her regular railroad 
occupation, or to become entitled to a railroad retirement annuity based 
on disability for any regular employment as an employee, widow(er), or 
child, he or she must be disabled as those terms are defined in the 
Railroad Retirement Act. In order for a claimant to become entitled to a 
period of disability, to early Medicare coverage based on disability, to 
benefits under the social security overall minimum, or to a disability 
annuity as

[[Page 199]]

a surviving divorced spouse or remarried widow(er), the claimant must be 
found disabled as that term is defined in the Social Security Act.



Sec. 220.2  The basis for the Board's disability decision.

    (a) The Board makes disability decisions for claims of disability 
under the Railroad Retirement Act. These decisions are based either on 
the rules contained in the Board's regulations in this part or the rules 
contained in the regulations of the Social Security Administration, 
whichever is controlling.
    (b) A disability decision is made only if the claimant meets other 
basic eligibility requirements for the specific disability benefit for 
which he or she is applying. For example, a claimant for an occupational 
disability annuity must first meet the eligibility requirements for that 
annuity, as explained in part 216 of this chapter, in order for the 
Board to make a disability decision.



Sec. 220.3  Determinations by other organizations and agencies.

    Determinations of the Social Security Administration or any other 
governmental or non-governmental agency about whether or not a claimant 
is disabled under the laws, regulations or standards administered by 
that agency shall be considered by the Board but are not binding on the 
Board.



        Subpart B--General Definitions of Terms Used in This Part



Sec. 220.5  Definitions as used in this part.

    Act means the Railroad Retirement Act of 1974.
    Application refers only to a form described in part 217 of this 
chapter.
    Board means the Railroad Retirement Board.
    Claimant means the person for whom an application for an annuity, 
period of disability or Medicare coverage is filed.
    Eligible means that a person would meet all the requirements for 
payment of an annuity but has not yet applied.
    Employee is defined in part 203 of this title.
    Entitled means that a person has applied and has proven his or her 
right to have the annuity, period of disability, or Medicare coverage 
begin.
    Medical source refers to both a treating source and a source of 
record.
    Review physician means a medical doctor either employed by or under 
contract to the Board who upon request reviews medical evidence and 
provides medical advice.
    Social security overall minimum refers to the provision of the 
Railroad Retirement Act which guarantees that the total monthly 
annuities payable to an employee and his or her family will not be less 
than the total monthly amount which would be payable under the Social 
Security Act if the employee's railroad service were credited as 
employment under the Social Security Act.
    Source of record means a hospital, clinic or other source that has 
provided a claimant with medical treatment or evaluation, as well as a 
physician or psychologist who has treated or evaluated a claimant but 
does not have an ongoing relationship with him or her.
    Treating source means the claimant's own physician or psychologist 
who has provided the claimant with medical treatment or evaluation and 
who has an ongoing treatment relationship with him or her.



 Subpart C--Disability Under the Railroad Retirement Act for Work in an 
                 Employee's Regular Railroad Occupation



Sec. 220.10  Disability for work in an employee's regular railroad occupation.

    (a) In order to receive an occupational disability annuity an 
eligible employee must be found by the Board to be disabled for work in 
his or her regular railroad occupation because of a permanent physical 
or mental impairment. In this subpart the Board describes in general 
terms how it evaluates a claim for an occupational disability annuity. 
In accordance with section 2(a)(2) of the Railroad Retirement Act this 
subpart was developed with the cooperation of employers and employees. 
This subpart is supplemented by an Occupational Disability

[[Page 200]]

Claims Manual (Manual) \1\ which was also developed with the cooperation 
of employers and employees.
---------------------------------------------------------------------------

    \1\ The Manual may be obtained from the Board's headquarters at 844 
North Rush Street, Chicago, IL 60611.
---------------------------------------------------------------------------

    (b) In accordance with section 2(a)(2) of the Railroad Retirement 
Act, the Board shall select two physicians, one from recommendations 
made by representatives of employers and one from recommendations made 
by representatives of employees. These individuals shall comprise the 
Occupational Disability Advisory Committee (Committee). This Committee 
shall periodically review, as necessary, this subpart and the Manual and 
make recommendations to the Board with respect to amendments to this 
subpart or to the Manual. The Board shall confer with the Committee 
before it amends either this subpart or the Manual.

[63 FR 7541, Feb. 13, 1998]



Sec. 220.11  Definitions as used in this subpart.

    Functional capacity test means one of a number of tests which 
provide objective measures of a claimant's maximal work ability and 
includes functional capacity evaluations which provide a systematic 
comprehensive assessment of a claimant's overall strength, mobility, 
endurance and capacity to perform physically demanding tasks, such as 
standing, walking, lifting, crouching, stooping or bending, climbing or 
kneeling.
    Independent Case Evaluation (ICE) means the process for evaluating 
claims not covered by appendix 3 of this part.
    Permanent physical or mental impairment means a physical or mental 
impairment or combination of impairments that can be expected to result 
in death or has lasted or can be expected to last for a continuous 
period of not less than 12 months.
    Regular railroad occupation means an employee's railroad occupation 
in which he or she has engaged in service for hire in more calendar 
months than the calendar months in which he or she has been engaged in 
service for hire in any other occupation during the last preceding five 
calendar years, whether or not consecutive; or has engaged in service 
for hire in not less than one-half of all of the months in which he or 
she has been engaged in service for hire during the last preceding 15 
consecutive calendar years. If an employee last worked as an officer or 
employee of a railway labor organization and if continuance in such 
employment is no longer available to him or her, the ``regular 
occupation'' shall be the position to which the employee holds seniority 
rights or the position which he or she left to work for a railway labor 
organization.
    Residual functional capacity has the same meaning as found in 
Sec. 220.120.

[63 FR 7541, Feb. 13, 1998]



Sec. 220.12  Evidence considered.

    The regulations explaining the employee's responsibility to provide 
evidence of disability, the kind of evidence, what medical evidence 
consists of, and the consequences of refusing or failing to provide 
evidence or to have a medical examination are found in Sec. 220.45 
through Sec. 220.48. The regulations explaining when the employee may be 
requested to report for a consultative examination are found in 
Sec. 220.50 and Sec. 220.51. The regulations explaining how the Board 
evaluates conclusions by physicians concerning the employee's 
disability, how the Board evaluates the employee's symptoms, what 
medical findings consist of, and the need to follow prescribed treatment 
are found in Sec. 220.112 through Sec. 220.115.

[56 FR 12980, Mar. 28, 1991. Redesignated at 63 FR 7541, Feb. 13, 1998]



Sec. 220.13  Establishment of permanent disability for work in regular railroad occupation.

    The Board will presume that a claimant who is not allowed to 
continue working for medical reasons by his employer has been found, 
under standards contained in this subpart, disabled unless the Board 
finds that no person could reasonably conclude on the basis of evidence 
presented that the claimant can no longer perform his or her regular 
railroad occupation for medical reasons. (See Sec. 220.21 if the 
claimant is not currently disabled, but was previously occupationally 
disabled for a

[[Page 201]]

specified period of time in the past). The Board uses the following 
evaluation process in determining disability for work in the regular 
occupation:
    (a) The Board evaluates the employee's medically documented physical 
and mental impairment(s) to determine if the employee has an impairment 
which is listed in the Listing of Impairments in appendix 1 of this 
part. That Listing describes impairments which are considered severe 
enough to prevent a person from doing any substantial gainful activity. 
If the Board finds that an employee has an impairment which is listed or 
is equal to one which is listed, it will find the employee disabled for 
work in his or her regular occupation without considering the duties of 
his or her regular occupation.
    (b) If the Board finds that the claimant does not have an impairment 
described in paragraph (a) of this section, it will--
    (1) Determine the employee's regular railroad occupation, as defined 
in Sec. 220.11, based upon the employee's own description of his or her 
job;
    (2) Evaluate whether the claimant is disabled as follows:
    (i) The Board first determines whether the employee's regular 
railroad occupation is an occupation covered under appendix 3 of this 
part. Second, the Board will determine whether the employee's claimed 
impairment(s) is covered under appendix 3 of this part. If claimant's 
regular railroad occupation or impairment(s) is not covered under 
appendix 3 of this part, then the Board will determine if the employee 
is disabled under ICE as set forth in paragraph (b)(2)(iv) of this 
section.
    (ii)(A) If the Board determines that, in accordance with paragraph 
(b)(2)(i) of this section, appendix 3 of this part applies, then the 
Board will confirm the existence of the employee's impairment(s) using--
    (1) The ``highly recommended'' and ``recommended'' tests set forth 
in appendix 3 of this part that relate to the body part affected by the 
claimant's impairment(s); or
    (2) By using valid diagnostic tests accepted by the medical 
community as described in Sec. 220.27.
    (B) If the employee's impairment(s) cannot be confirmed because 
there are significant differences in objective tests such as imaging 
study, electrocardiograms or other test results, and these differences 
cannot be readily resolved, the Board will determine if the employee is 
disabled under ICE as set forth in paragraph (b)(2)(iv) of this section. 
However, if the employee's impairment(s) cannot be confirmed, and there 
are no significant differences in objective medical tests which cannot 
be readily resolved, then the employee will be found not disabled.
    (iii) Once the impairment(s) is confirmed, as provided for in 
paragraph (b)(2)(ii) of this section, the Board will apply appendix 3 of 
this part. If appendix 3 of this part dictates a ``D'' (disabled) 
finding, the Board will find the claimant disabled.
    (iv) If the Board does not find the employee disabled using the 
standards in appendix 3 of this part, then the Board will determine if 
the employee is disabled using ICE. To evaluate a claim under ICE the 
Board will use the following steps:
    (A) Step 1. The Board will determine if the medical evidence is 
complete. Under this step the Board may request the claimant to take 
additional medical tests such as a functional capacity test or other 
consultative examinations;
    (B) Step 2. If the employee's impairment(s) has not been confirmed, 
as provided for in paragraph (b)(2)(ii)(A)(2) of this section, the Board 
will next confirm the employee's impairment(s), as described in 
paragraph (b)(2)(ii)(A)(2) of this section;
    (C) Step 3. The Board will determine whether the opinions among the 
physicians regarding medical findings are consistent, by reviewing the 
employee's medical history, physical and mental examination findings, 
laboratory or

[[Page 202]]

other test results, and other information provided by the employee or 
obtained by the Board. If such records reveal that there are significant 
differences in the medical findings, significant differences in opinions 
concerning the residual functional capacity evaluations among treating 
physicians, or significant differences between the results of functional 
capacity evaluations and residual functional capacity examinations, then 
the Board may request additional evidence from treating physicians, 
additional consultative examinations and/or residual functional capacity 
tests to resolve the inconsistencies;
    (D) Step 4. When the Board determines that there is concordance of 
medical findings, then the Board will assess the quality of the evidence 
in accordance with Sec. 220.112, which describes the weight to be given 
to the opinions of various physicians, and Sec. 220.114, which describes 
how the Board evaluates symptoms such as pain. The Board will also 
assess the weight of evidence by utilizing Sec. 220.14, which outlines 
factors to be used in determining the weight to be attributed to certain 
types of evidence. If, after assessment, the Board determines that there 
is no substantial objective evidence of an impairment, the Board will 
determine that the employee is not disabled;
    (E) Step 5. Next, the Board determines the physical and mental 
demands of the employee's regular railroad occupation. In determining 
the job demands of the employee's regular railroad occupation, the Board 
will not only consider the employee's own description of his or her 
regular railroad occupation, but shall also consider the employer's 
description of the physical requirements and environmental factors 
relating to the employee's regular railroad occupation, as provided by 
the employer on the appropriate form set forth in appendix 3 of this 
part, and consult other sources such as the Dictionary of Occupational 
Titles and the job descriptions of occupations found in the Occupational 
Disability Claims Manual, as provided for in Sec. 220.10;
    (F) Step 6. Based upon the assessment of the evidence in paragraph 
(b)(2)(iv)(D) of this section, the Board shall determine the employee's 
residual functional capacity. The Board will then compare the job 
demands of the employee's regular railroad occupation, as determined in 
paragraph (b)(2)(iv)(E) of this section. If the demands of the 
employee's regular railroad occupation exceed the employee's residual 
functional capacity, then the Board will find the employee disabled. If 
the demands do not exceed the employee's residual functional capacity, 
then the Board will find the employee not disabled.

[56 FR 12980, Mar. 28, 1991, as amended at 63 FR 7541, Feb. 13, 1998]



Sec. 220.14  Weighing of evidence.

    (a) Factors which support greater weight. Evidence will generally be 
given more weight if it meets one or more of the following criteria:
    (1) The residual functional capacity evaluation is based upon 
functional objective tests with high validity and reliability;
    (2) The medical evidence shows multiple impairments which have a 
cumulative effect on the employee's residual functional capacity;
    (3) Symptoms associated with limitations are consistent with 
objective findings;
    (4) There exists an adequate trial of therapies with good 
compliance, but poor outcome;
    (5) There exists consistent history of conditions between treating 
physicians and other health care providers.
    (b) Factors which support lesser weight. Evidence will generally be 
given lesser weight if it meets one or more of the following criteria:
    (1) There is an inconsistency between the diagnoses of the treating 
physicians;
    (2) There is inconsistency between reports of pain and functional 
impact;
    (3) There is inconsistency between subjective symptoms and physical 
examination findings;
    (4) There is evidence of poor compliance with treatment regimen, 
keeping appointments, or cooperating with treatment;
    (5) There is evidence of exam findings which is indicative of 
exaggerated or potential malingering response;

[[Page 203]]

    (6) The evidence consists of objective findings of exams that have 
poor reliability or validity;
    (7) The evidence consists of imaging findings which are nonspecific 
and largely present in the general population;
    (8) The evidence consists of a residual functional capacity 
evaluation which is supported by limited objective data without 
consideration for functional capacity testing.

[63 FR 7542, Feb. 13, 1998]



Sec. 220.15  Effects of work on occupational disability.

    (a) Disability onset when the employee works despite impairment. An 
employee who has stopped work in his or her regular occupation due to a 
permanent physical or mental impairment(s) may make an effort to return 
to work in his or her regular occupation. If the employee is 
subsequently forced to stop that work after a short time because of his 
or her impairment(s), the Board will generally consider that work as an 
unsuccessful work attempt. In this situation, the Board may determine 
that the employee became disabled for work in his or her regular 
occupation before the last date the employee worked in his or her 
regular occupation. No annuity will be payable, however, until after the 
last date worked.
    (b) Occupational disability annuitant work restrictions. The 
restrictions which apply to an annuitant who is disabled for work in his 
or her regular occupation are found in Secs. 220.160 through 220.164.



Sec. 220.16  Responsibility to notify the Board of events which affect disability.

    If the annuitant is entitled to a disability annuity because he or 
she is disabled for work in his or her regular occupation, the annuitant 
should promptly tell the Board if--
    (a) His or her impairment(s) improves;
    (b) He or she returns to any type of work;
    (c) He or she increases the amount of work; or
    (d) His or her earnings increase.



Sec. 220.17  Recovery from disability for work in the regular occupation.

    (a) General. Disability for work in the regular occupation will end 
if--
    (1) There is medical improvement in the annuitant's impairment(s) to 
the extent that the annuitant is able to perform the duties of his or 
her regular occupation; or
    (2) The annuitant demonstrates the ability to perform the duties of 
his or her regular occupation. The Board provides a trial work period 
before terminating a disability annuity because of the annuitant's 
return to work.
    (b) Definition of the trial work period. The trial work period is a 
period during which the annuitant may test his or her ability to work 
and still be considered occupationally disabled. It begins and ends as 
described in paragraph (e) of this section. During this period, the 
annuitant may perform ``services'' (see paragraph (c) of this section) 
in as many as 9 months, but these months do not have to be consecutive. 
The Board will not consider those services as showing that the 
annuitant's occupational disability has ended until the annuitant has 
performed services in at least 9 months. However, after the trial work 
period has ended, the Board will consider the work the annuitant did 
during the trial work period in determining whether the annuitant's 
occupational disability has ended at any time after the trial work 
period.
    (c) What the Board means by services in an occupational disability 
case. When used in this section, ``services'' means any activity which, 
even though it may not be substantial gainful activity as defined in 
Sec. 220.141, is--
    (1) Done by a person in employment or self-employment for pay or 
profit, or is the kind normally done for pay or profit; and
    (2) The activity is a return to the same duties of the annuitant's 
regular occupation or the activity so closely approximates the duties of 
the regular occupation as to demonstrate the ability to perform those 
duties.
    (d) Limitations on the number of trial work periods. The annuitant 
may have only one trial work period during each period in which he or 
she is occupationally disabled.

[[Page 204]]

    (e) When the trial work period begins and ends. (1) The trial work 
period begins with whichever of the following calendar months is the 
latest--
    (i) The annuity beginning date;
    (ii) The month after the end of the appropriate waiting period; or
    (iii) The month the application for disability is filed.
    (2) The trial work period ends with the close of whichever of the 
following calendar months is the earlier--
    (i) The ninth month (whether or not the months have been 
consecutive) in which the annuitant performed services; or
    (ii) The month in which new evidence, other than evidence relating 
to any work the annuitant did during the trial work period, shows that 
the annuitant is not disabled, even though the annuitant has not worked 
a full nine months. The Board may find that the annuitant's disability 
has ended at any time during the trial work period if the medical or 
other evidence shows that the annuitant is no longer disabled.



Sec. 220.18  The reentitlement period.

    (a) General. The reentitlement period is an additional period after 
the nine months of trial work during which the annuitant may continue to 
test his or her ability to work if the annuitant has a disabling 
impairment.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of nine months 
of trial work but cannot begin earlier than December 1, 1980. It ends 
with whichever is earlier--
    (1) The month before the first month in which the annuitant's 
impairment(s) no longer exists or is not medically disabling; or
    (2) The last day of the 36th month following the end of the 
annuitant's trial work period.
    (c) When the annuitant is not entitled to a reentitlement period. 
The annuitant is not entitled to a reentitlement period if--
    (1) The annuitant is not entitled to a trial work period; or
    (2) The annuitant's disability ended before the annuitant completed 
nine months of trial work in that period in which he or she was 
disabled.



Sec. 220.19  Payment of the disability annuity during the trial work period and the reentitlement period.

    (a) The employee who is entitled to an occupational disability 
annuity will not be paid an annuity for each month in the trial work 
period or reentitlement period in which he or she--
    (1) Works for an employer covered by the Railroad Retirement Act 
(see Sec. 220.160); or
    (2) Earns more than $400 (after deduction of impairment-related work 
expenses) in employment or self-employment (see Secs. 220.161 and 
220.164). See Sec. 220.145 for the definition of impairment-related work 
expenses.
    (b) If the employee's occupational disability annuity is stopped 
because of work during the trial work period or reentitlement period, 
and the employee discontinues that work before the end of either period, 
the disability annuity may be started again without a new application 
and a new determination of disability.



Sec. 220.20  Notice that an annuitant is no longer disabled.

    The regulation explaining the Board's responsibilities in notifying 
the annuitant, and the annuitant's rights when the disability annuity is 
stopped is found in Sec. 220.183.



Sec. 220.21  Initial evaluation of a previous occupational disability.

    (a) In some cases, the Board may determine that a claimant is not 
currently disabled for work in his or her regular occupation but was 
previously disabled for a specified period of time in the past. This can 
occur when--
    (1) The disability application was filed before the claimant's 
occupational disability ended, but the Board did not make the initial 
determination of occupational disability until after the claimant's 
disability ended; or
    (2) The disability application was filed after the claimant's 
occupational disability ended but no later than the 12th month after the 
month the disability ended.
    (b) When evaluating a claim for a previous occupational disability, 
the Board follows the steps in Sec. 220.13 to determine whether an 
occupational disability existed, and follows the steps in

[[Page 205]]

Sec. Sec. 220.16 and 220.17 to determine when the occupational 
disability ended.

    Example 1: The claimant sustained multiple fractures to his left leg 
in an automobile accident which occurred on June 16, 1982. For a period 
of 18 months following the accident the claimant underwent 2 surgical 
procedures which restored the functional use of his leg. After a 
recovery period following the last surgery, the claimant returned to his 
regular railroad job on February 1, 1984. The claimant, although fully 
recovered medically and regularly employed, filed an application on 
December 3, 1984 for a determination of occupational disability for the 
period June 16, 1982 through January 31, 1984. The Board reviewed his 
claim in January 1985 and determined that he was occupationally disabled 
for the prior period which began on June 16, 1982 and continued through 
January 31, 1984. A disability annuity is payable to the employee only 
for the period December 1, 1983 through January 31, 1984. An annuity may 
not begin any earlier than the 1st day of the 12th month before the 
month in which the application was filed. (See part 218 of this chapter 
for the rules on when an annuity may begin).
    Example 2: The claimant is occupationally disabled using the same 
medical facts disclosed above, beginning June 16, 1982 (the date of the 
automobile accident). The claimant files an application for an 
occupational disability annuity, dated December 1, 1983. However, as of 
February 1, 1984, and before the Board makes a disability determination, 
the claimant returns to his regular railroad job and is no longer 
considered occupationally disabled. The Board reviews the claimant's 
application in May of 1984 and finds him occupationally disabled for the 
period June 16, 1982 through January 31, 1984. A disability annuity is 
payable to the employee from December 1, 1982 through January 31, 1984. 
(See part 218 of this chapter for the rules on when an annuity may 
begin).



Subpart D--Disability Under the Railroad Retirement Act for Any Regular 
                               Employment



Sec. 220.25  General.

    The definition and discussion of disability for any regular 
employment are found in Secs. 220.26 through 220.184.



Sec. 220.26  Disability for any regular employment, defined.

    An employee, widow(er), or child is disabled for any regular 
employment if he or she is unable to do any substantial gainful activity 
because of a medically determinable physical or mental impairment which 
meets the duration requirement defined in Sec. 220.28. In the case of a 
widow(er), the permanent physical or mental impairment must have 
prevented work in any regular employment before the end of a specific 
period (see Sec. 220.30). In the case of a child, the permanent physical 
or mental impairment must have prevented work in any regular employment 
since before age 22. To meet this definition of disability, a claimant 
must have a severe impairment, which makes him or her unable to do any 
previous work or other substantial gainful activity which exists in the 
national economy. To determine whether a claimant is able to do any 
other work, the Board considers a claimant's residual functional 
capacity, age, education and work experience. See Sec. 220.100 for the 
process by which the Board evaluates disability for any regular 
employment. This process applies to employees, widow(er)s, or children 
who apply for annuities based on disability for any regular employment. 
This process does not apply to surviving divorced spouses or remarried 
widow(er)s who apply for annuities based on disability.



Sec. 220.27  What is needed to show an impairment.

    A physical or mental impairment must result from anatomical, 
physiological, or psychological abnormalities which can be shown by 
medically acceptable clinical and laboratory diagnostic techniques. A 
physical or mental impairment must be established by medical evidence 
consisting of signs, symptoms, and laboratory findings, not only by the 
claimant's statement of symptoms. (See Sec. 220.113 for further 
information about what is meant by symptoms, signs, and laboratory 
findings.) (See also Sec. 220.112 for the effect of a medical opinion 
about whether or not a claimant is disabled.)



Sec. 220.28  How long the impairment must last.

    Unless the claimant's impairment is expected to result in death, it 
must have lasted or must be expected to last for a continuous period of 
at least 12 months. This is known as the duration requirement.

[[Page 206]]



Sec. 220.29  Work that is considered substantial gainful activity.

    Work is considered to be substantial gainful activity if it--
    (a) Involves doing significant and productive physical or mental 
duties; and
    (b) Is done or is intended to be done for pay or profit. (See 
Sec. 220.141 for a detailed explanation of what is substantial gainful 
activity.)



Sec. 220.30  Special period required for eligibility of widow(er)s.

    In order to be found disabled for any regular employment, a 
widow(er) must have a permanent physical or mental impairment which 
prevented work in any regular employment since before the end of a 
specific period as defined in part 216 of this chapter.



Subpart E--Disability Determinations Governed by the Regulations of the 
                     Social Security Administration



Sec. 220.35  Introduction.

    In addition to its authority to decide whether a claimant is 
disabled under the Railroad Retirement Act, the Board has authority in 
certain instances to decide whether a claimant is disabled as that term 
is defined in the Social Security Act. In making these decisions the 
Board must apply the regulations of the Social Security Administration 
in the same manner as does the Secretary of Health and Human Services in 
making disability decisions under the Social Security Act. Regulations 
of the Social Security Administration concerning disability are found at 
part 404, subpart P of this title.



Sec. 220.36  Period of disability.

    (a) General. In order to receive an annuity based upon a disability, 
an employee must be found disabled under the Railroad Retirement Act. If 
an employee is found disabled under the Railroad Retirement Act, the 
Board will determine whether he is disabled under the Social Security 
Act to qualify for a period of disability as defined in that Act.
    (b) Period of disability--(1) Definition and effect. A period of 
disability is a continuous period of time during which an employee is 
disabled as that term is defined in Sec. 404.1505 of this title. A 
period of disability established by the Board--
    (i) Preserves the disabled employee's earnings record as it is when 
the period begins;
    (ii) Protects the insured status required for entitlement to social 
security overall minimum;
    (iii) May cause an increase in the rate of an employee, spouse, or 
survivor annuity; or
    (iv) May permit a disabled employee to receive Medicare benefits in 
addition to an annuity under the Railroad Retirement Act.
    (2) Effect on benefits. The establishment of a period of disability 
for the employee will never cause a denial or reduction in benefits 
under the Railroad Retirement Act or Social Security Act, but it will 
always be used to establish Medicare entitlement before age 65.
    (3) Who may establish a period of disability. The Railroad 
Retirement Board or the Social Security Administration may establish a 
period of disability. However, the decision of one agency is not binding 
upon the other agency.
    (4) When the Board may establish a period of disability. The Board 
has independent authority to decide whether or not to establish a period 
of disability for any employee who was awarded an annuity under the 
Railroad Retirement Act, or who--
    (i) Has applied for a disability annuity; and
    (ii) Has at least 10 years of railroad service.
    (5) When an employee is entitled to a period of disability. An 
employee is entitled to a period of disability if he or she meets the 
following requirements:
    (i) The employee is disabled under the Social Security Act, as 
described in Sec. 404.1505 of this title.
    (ii) The employee is insured for a period of disability under 
Sec. 404.130 of this title based on combined railroad and social 
security earnings.
    (iii) The employee files an application as shown in subparagraph 
(b)(6) of this section.

[[Page 207]]

    (iv) At least 5 consecutive months elapse from the month in which 
the period of disability begins and before the month in which it would 
end.
    (6) Application for a period of disability. (i) An application for 
an employee disability annuity under the Railroad Retirement Act or an 
employee disability benefit under the Social Security Act is also an 
application for a period of disability.
    (ii) An employee who is receiving an age annuity or who was 
previously denied a period of disability must file a separate 
application for a period of disability.
    (iii) In order to be entitled to a period of disability, an employee 
must apply while he or she is disabled or not later than 12 months after 
the month in which the period of disability ends.
    (iv) An employee who is unable to apply within the 12-month period 
after the period of disability ends because his or her physical 
condition limited his or her activities to the extent that he or she 
could not complete and sign an application or because he or she was 
mentally incompetent, may apply no later than 36 months after the period 
of disability ends.
    (v) A period of disability can also be established on the basis of 
an application filed within 3 months after the month a disabled employee 
died.
    (c) Social security overall minimum. The social security overall 
minimum provision of the Railroad Retirement Act guarantees that the 
total monthly annuities payable to an employee and his or her family 
will not be less than the total monthly benefit which would be payable 
under the Social Security Act if the employee's railroad service were 
credited as employment under the Social Security Act.

(The information collection requirements contained in paragraph (b)(6) 
were approved by the Office of Management and Budget under control 
number 3220-0002)



Sec. 220.37  When a child's disability determination is governed by the regulations of the Social Security Administration.

    (a) In order to receive an annuity based upon disability, a child of 
a deceased employee must be found disabled under the Railroad Retirement 
Act. However, in addition to this determination, the child must be found 
disabled under the Social Security Act in order to qualify for Medicare 
based upon disability.
    (b) Although the child of a living employee may not receive an 
annuity under the Railroad Retirement Act, he or she, if found disabled 
under the Social Security Act, may qualify for the following:
    (1) Inclusion as a disabled child in the employee's annuity rate 
under the social security overall minimum.
    (2) Entitlement to Medicare based upon disability.



Sec. 220.38  When a widow(er)'s disability determination is governed by the regulations of the Social Security Administration.

    In order to receive an annuity based upon disability, a widow(er) 
must be found disabled under the Railroad Retirement Act. However, in 
addition to this determination, the widow(er) must be found disabled 
under the Social Security Act in order to qualify for early Medicare 
based upon disability.



Sec. 220.39  Disability determination for a surviving divorced spouse or remarried widow(er).

    A surviving divorced spouse or a remarried widow(er) must be found 
disabled under the Social Security Act in order to qualify for both an 
annuity under the Railroad Retirement Act and early Medicare based upon 
disability. Disability determinations for surviving divorced spouses and 
remarried widow(er)s are governed by the applicable regulations of the 
Social Security Administration, found at Sec. 404.1577 of this title.



                    Subpart F--Evidence of Disability



Sec. 220.45  Providing evidence of disability.

    (a) General. The claimant for a disability annuity is responsible 
for providing evidence of the claimed disability and the effect of the 
disability on the ability to work. The Board will assist the claimant, 
when necessary, in obtaining the required evidence. At its discretion, 
the Board will arrange for an examination by a consultant at the

[[Page 208]]

expense of the Board as explained in Secs. 220.50 and 220.51.
    (b) Kind of evidence. The claimant must provide medical evidence 
showing that he or she has an impairment(s) and how severe it is during 
the time the claimant claims to be disabled. The Board will consider 
only impairment(s) the claimant claims to have or about which the Board 
receives evidence. Before deciding that the claimant is not disabled, 
the Board will develop a complete medical history (i.e., evidence from 
the records of the claimant's medical sources) covering at least the 
preceding 12 months, unless the claimant says that his or her disability 
began less than 12 months before he or she filed an application. The 
Board will make every reasonable effort to help the claimant in getting 
medical reports from his or her own medical sources when the claimant 
gives the Board permission to request them. Every reasonable effort 
means that the Board will make an initial request and, after 20 days, 
one follow-up request to the claimant's medical source to obtain the 
medical evidence necessary to make a determination before the Board 
evaluates medical evidence obtained from another source on a 
consultative basis. The medical source will have 10 days from the 
follow-up request to reply (unless experience indicates that a longer 
period is advisable in a particular case). In order to expedite 
processing the Board may order a consultative exam from a non-treating 
source while awaiting receipt of medical source evidence. If the Board 
ask the claimant to do so, he or she must contact the medical sources to 
help us get the medical reports. The Board may also ask the claimant to 
provide evidence about his or her--
    (1) Age;
    (2) Education and training;
    (3) Work experience;
    (4) Daily activities both before and after the date the claimant 
says that he or she became disabled;
    (5) Efforts to work; and
    (6) Any other evidence showing how the claimant's impairment(s) 
affects his or her ability to work. (In Secs. 220.125 through 220.134, 
we discuss in more detail the evidence the Board needs when it considers 
vocational factors.)

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0030, 3220-0106 and 3220-0141)



Sec. 220.46  Medical evidence.

    (a) Acceptable sources. The Board needs reports about the claimant's 
impairment(s) from acceptable medical sources. Acceptable medical 
sources are--
    (1) Licensed physicians;
    (2) Licensed osteopaths;
    (3) Licensed or certified psychologists;
    (4) Licensed optometrists for the measurement of visual acuity and 
visual fields (a report from a physician may be needed to determine 
other aspects of eye diseases); and
    (5) Persons authorized to furnish a copy or summary of the records 
of a medical facility. Generally, the copy or summary should be 
certified as accurate by the custodian or by any authorized employee of 
the Railroad Retirement Board, Social Security Administration, 
Department of Veterans Affairs, or State agency.
    (b) Medical reports. Medical reports should include--
    (1) Medical history;
    (2) Clinical findings (such as the results of physical or mental 
status examinations);
    (3) Laboratory findings (such as blood pressure, x-rays);
    (4) Diagnosis (statement of disease or injury based on its signs and 
symptoms);
    (5) Treatment prescribed, with response to treatment and prognosis; 
and
    (6)(i) Statements about what the claimant can still do despite his 
or her impairment(s) based on the medical source's findings on the 
factors under paragraph (b)(1) through (5) of this section (except in 
disability claims for remarried widow's and surviving divorced spouses). 
(See Sec. 220.112).
    (ii) Statements about what the claimant can still do (based on the 
medical source's findings on the factors under paragraph (b)(1) through 
(5) of this section) should describe--
    (A) The medical source's opinion about the claimant's ability, 
despite his or her impairment(s), to do work-

[[Page 209]]

related activities such as sitting, standing, moving about, lifting, 
carrying, handling objects, hearing, speaking, and traveling; and
    (B) In cases of mental impairment(s), the medical source's opinion 
about the claimant's ability to reason or make occupational, personal, 
or social adjustments. (See Sec. 220.112).
    (c) Completeness. The medical evidence, including the clinical and 
laboratory findings, must be complete and detailed enough to allow the 
Board to make a determination about whether or not the claimant is 
disabled. It must allow the Board to determine--
    (1) The nature and limiting effects of the claimant's impairment(s) 
for any period in question;
    (2) The probable duration of the claimant's impairment(s); and
    (3) The claimant's residual functional capacity to do work-related 
physical and mental activities.
    (d) Evidence from physicians. A statement by or the opinion of the 
claimant's treating physician will not determine whether the claimant is 
disabled. However, the medical evidence provided by a treating physician 
will be considered by the Board in making a disability decision. A 
treating physician is a doctor to whom the claimant has been going for 
treatment on a continuing basis. The claimant may have more than one 
treating physician. The Board may use consulting physicians or other 
medical consultants for specialized examinations or tests, to obtain 
more complete evidence, and to resolve any conflicts. A consulting 
physician is a doctor (often a specialist) to whom the claimant is 
referred for an examination once or on a limited basis. (See Sec. 220.50 
for an explanation of when the Board may request a consultative 
examination.)
    (e) Information from other sources. Information from other sources 
may also help the Board understand how an impairment affects the 
claimant's ability to work. Other sources include--
    (1) Public and private social welfare agencies;
    (2) Observations by nonmedical sources;
    (3) Other practitioners (for example, naturopaths, chiropractors, 
audiologists, etc.); and
    (4) Railroad and nonrailroad employers.

(Approved by the Office of Management and Budget under control number 
3220-0038)



Sec. 220.47  Purchase of existing medical evidence.

    The Board needs specific medical evidence to determine whether a 
claimant is disabled. The claimant is responsible for providing that 
evidence. However, at its discretion, the Board will pay the reasonable 
cost to obtain medical evidence that it needs and requests from 
physicians not employed by the Federal government and other non-Federal 
providers of medical services.



Sec. 220.48  If the claimant fails to submit medical or other evidence.

    The Board may request a claimant to submit medical or other 
evidence. If the claimant does not submit that evidence, the Board will 
make a decision on other evidence which is either already available in 
the claimant's case or which the Board may develop from other sources, 
including reports of consultative examinations.



                  Subpart G--Consultative Examinations



Sec. 220.50  Consultative examinations at the Board's expense.

    A consultative examination is a physical or mental examination or 
test purchased for a claimant at the Board's request and expense. If the 
claimant's medical sources cannot provide sufficient medical evidence 
about the claimant's impairment(s) in order to enable the Board to 
determine whether the claimant is disabled, the Board may ask the 
claimant to have one or more consultative examinations or tests. The 
decision to purchase a consultative examination will be made on an 
individual case basis in accordance with the provisions of Secs. 220.53 
through 220.56. Selection of the source for the examination will be 
consistent with the provisions of Sec. 220.64 (Program Integrity).

(Approved by the Office of Management and Budget under control number 
3220-0124)

[[Page 210]]



Sec. 220.51  Notice of the examination.

    If the Board arranges for an examination or test, the claimant will 
be provided with reasonable notice of the date, time, and place of the 
examination or test and the name of the person who will do it. The Board 
will also give the examiner any necessary background information about 
the claimant's impairment(s).



Sec. 220.52  Failure to appear at a consultative examination.

    (a) General. The Board may find that the claimant is not disabled if 
he or she does not have good reason for failing or refusing to take part 
in a consultative examination or test which was arranged by the Board. 
If the individual is already receiving an annuity and does not have a 
good reason for failing or refusing to take part in a consultative 
examination or test which the Board arranged, the Board may determine 
that the individual's disability has stopped because of his or her 
failure or refusal. The claimant for whom an examination or test has 
been scheduled should notify the Board as soon as possible before the 
scheduled date of the examination or test if he or she has any reason 
why he or she cannot go to the examination or test. If the Board finds 
that the claimant has a good reason for failure to appear, another 
examination or test will be scheduled.
    (b) Examples of good reasons for failure to appear. Some examples of 
good reasons for not going to a scheduled examination or test include--
    (1) Illness on the date of the scheduled examination or test;
    (2) Failure to receive notice or timely notice of an examination or 
test;
    (3) Receipt of incorrect or incomplete information about the 
examination or test; or
    (4) A death or serious illness in the claimant's immediate family.
    (c) Objections by a claimant's physician. The Board should be 
notified immediately if the claimant is advised by his or her treating 
physician not to take an examination or test. In some cases, the Board 
may be able to secure the information which is needed in another way or 
the treating physician may agree to another type of examination for the 
same purpose.



Sec. 220.53  When the Board will purchase a consultative examination and how it will be used.

    (a)(1) General. The decision to purchase a consultative examination 
for a claimant will be made after full consideration is given to whether 
the additional information needed (e.g., clinical findings, laboratory 
tests, diagnosis, and prognosis, etc.) is readily available from the 
records of the claimant's medical sources. Upon filing an application 
for a disability annuity, a claimant will be required to obtain from his 
or her medical source(s) information regarding the claimed impairments. 
The Board will seek clarification from a medical source who has provided 
a report when that report contains a conflict or ambiguity, or does not 
contain all necessary information or when the information supplied is 
not based on objective evidence. The Board will not, however, seek 
clarification from a medical source when it is clear that the source 
either cannot or will not provide the necessary findings, or cannot 
reconcile a conflict or ambiguity in the findings provided from the 
source's records. Therefore, before purchasing a consultative 
examination, the Board will consider not only existing medical reports, 
but also the background report containing the claimant's allegations and 
information about the claimant's vocational background, as well as other 
pertinent evidence in his or her file.
    (2) When the Board purchases a consultative examination, we will use 
the report from the consultative examination to try to resolve a 
conflict or ambiguity if one exists. The Board will do this by comparing 
the persuasiveness and value of the evidence. The Board will also use a 
consultative examination to secure needed medical evidence the file does 
not contain such as clinical findings, laboratory tests, a diagnosis or 
prognosis necessary for decision.
    (b) Situations requiring a consultative examination. A consultative 
examination may be purchased when the evidence as a whole, both medical 
and non-medical, is not sufficient to support a decision on the claim. 
In addition, other situations, such as one or more of the following, 
will normally

[[Page 211]]

require a consultative examination (these situations are not all-
inclusive):
    (1) The specific additional evidence needed for adjudication has 
been pinpointed and high probability exists for obtaining it through 
purchase.
    (2) The additional evidence needed is not contained in the records 
of the claimant's treating sources.
    (3) Evidence that may be needed from the claimant's treating or 
other medical sources cannot be obtained for reasons beyond his or her 
control, such as death or noncooperation of the medical source.
    (4) Highly technical or specialized medical evidence which is needed 
is not available from the claimant's treating sources.
    (5) A conflict, inconsistency, ambiguity or insufficiency in the 
evidence must be resolved.
    (6) There is an indication of a change in the claimant's condition 
that is likely to affect his or her ability to function, but current 
severity is not documented.
    (7) Information provided by any source appears not to be supported 
by objective evidence.



Sec. 220.54  When the Board will not purchase a consultative examination.

    A consultative examination will not be purchased in the following 
situations (these situations are not all-inclusive):
    (a) In disabled widow(er) benefit claims, when the alleged month of 
disability is after the end of the 7-year period specified in 
Sec. 216.38 and there is no possibility of establishing an earlier 
onset, or when the 7-year period expired in the past and all the medical 
evidence in the claimant's file establishes that he or she was not 
disabled on or before the expiration date.
    (b) When any issues about the actual performance of substantial 
gainful activity have not been resolved.
    (c) In childhood disability claims, when it is determined that the 
claimant's alleged childhood disability did not begin before the month 
of attainment of age 22. In this situation, the claimant could not be 
entitled to benefits as a disabled child unless found disabled before 
age 22.
    (d) When, on the basis of the claimant's allegations and all 
available medical reports in his or her case file, it is apparent that 
he or she does not have an impairment which will have more than a 
minimal effect on his or her capacity to work.
    (e) Childhood disability claims filed concurrently with the 
employee's claim and entitlement cannot be established for the employee.
    (f) Survivors childhood disability claims where entitlement is 
precluded based on non-disability factors.



Sec. 220.55  Purchase of consultative examinations at the reconsideration level.

    (a) When a claimant requests a review of the Board's initial 
determination at the reconsideration level of review, consultative 
medical examinations will be obtained when needed, but not routinely. A 
consultative examination will not, if possible, be performed by the same 
physician or psychologist used in the initial claim.
    (b) Where the evidence tends to substantiate an affirmation of the 
initial denial but the claimant states that the treating physician or 
psychologist considers him or her to be disabled, the Board will assist 
the claimant in securing medical reports or records from the treating 
physician.



Sec. 220.56  Securing medical evidence at the hearings officer hearing level.

    (a) Where there is a conflict in the medical evidence at the hearing 
level of review before a hearings officer, the hearings officer will try 
to resolve it by comparing the persuasiveness and value of the 
conflicting evidence. The hearings officer's reasoning will be explained 
in the decision rationale. Where such resolution is not possible, the 
hearings officer will secure additional medical evidence (e.g., clinical 
findings, laboratory test, diagnosis, prognosis, etc.) to resolve the 
conflict. Even in the absence of a conflict, the hearings officer will 
also secure additional medical evidence when the file does not contain 
findings, laboratory tests, a diagnosis, or a prognosis necessary for a 
decision.
    (b) Before requesting a consultative examination, the hearings 
officer will

[[Page 212]]

ascertain whether the information is available as a result of a recent 
examination by any of the claimant's medical sources. If it is, the 
hearings officer will request the evidence from that medical 
practitioner. If contact with the medical source is not productive for 
any reason, or if there is no recent examination by a medical source, 
the hearings officer will obtain a consultative examination.



Sec. 220.57  Types of purchased examinations and selection of sources.

    (a) Additional evidence needed for disability determination. The 
types of examinations and tests the Board will purchase depends upon the 
additional evidence needed for the disability determination. The Board 
will purchase only the specific evidence needed. For example, if special 
tests (such as X-rays, blood studies, or EKG) will furnish the 
additional evidence needed for the disability determination, a more 
comprehensive medical examination will not be authorized.
    (b) The physician or psychologist selected to do the examination or 
test must be qualified. The physician's or psychologist's qualifications 
must indicate that the physician or psychologist is currently licensed 
in the State and has the training and experience to perform the type of 
examination or test requested. The physician or psychologist may use 
support staff to help perform the examination. Any such support staff 
must meet appropriate licensing or certification requirements of the 
State. See also Sec. 220.64.



Sec. 220.58  Objections to the designated physician or psychologist.

    A claimant or his or her representative may object to his or her 
being examined by a designated physician or psychologist. If there is a 
good reason for the objection, the Board will schedule the examination 
with another physician or psychologist. A good reason may be where the 
consultative examination physician or psychologist had previously 
represented an interest adverse to the claimant. For example, the 
physician or psychologist may have represented the claimant's employer 
in a worker's compensation case or may have been involved in an 
insurance claim or legal action adverse to the claimant. Other things 
the Board will consider are: language barrier, office location of 
consultative examination physician or psychologist (2nd floor, no 
elevator, etc.), travel restrictions, and examination by the physician 
or psychologist in connection with a previous unfavorable determination. 
If the objection is because a physician or psychologist allegedly 
``lacks objectivity'' (in general, but not in relation to the claimant 
personally) the Board will review the allegations. To avoid a delay in 
processing the claimant's claim, the consultative examination in such a 
case will be changed to another physician or psychologist while a review 
is being conducted. Any objection to use of the substitute physician or 
psychologist will be handled in the same manner. However, if the Board 
or the Social Security Administration had previously conducted such a 
review and found that the reports of the consultative physician or 
psychologist in question conform to the Board's guidelines, then the 
Board will not change the claimant's examination.



Sec. 220.59  Requesting examination by a specific physician, psychologist or institution--hearings officer hearing level.

    In an unusual case, a hearings officer may have reason to request an 
examination by a particular physician, psychologist or institution. Some 
examples include the following:
    (a) Conflicts in the existing medical evidence require resolution by 
a recognized authority in a particular specialty:
    (b) The impairment requires hospitalization for diagnostic purposes; 
or
    (c) The claimant's treating physician or psychologist is in the best 
position to submit a meaningful report.



Sec. 220.60  Diagnostic surgical procedures.

    The Board will not order diagnostic surgical procedures such as 
myelograms and arteriograms for the evaluation of disability under the 
Board's disability program. In addition, the Board

[[Page 213]]

will not order procedures such as cardiac catheterization and surgical 
biopsy. However, if any of these procedures have been performed as part 
of a workup by the claimant's treating physician or other medical 
source, the results may be secured and used to help evaluate an 
impairment(s)'s severity.



Sec. 220.61  Informing the examining physician or psychologist of examination scheduling, report content and signature requirements.

    Consulting physicians or psychologists will be fully informed at the 
time the Board contacts them of the following obligations:
    (a) General. In scheduling full consultative examinations, 
sufficient time should be allowed to permit the examining physician to 
take a case history and perform the examination (including any needed 
tests).
    (b) Report content. The reported results of the claimant's medical 
history, examination, pertinent requested laboratory findings, 
discussions and conclusions must conform to accepted professional 
standards and practices in the medical field for a complete and 
competent examination. The facts in a particular case and the 
information and findings already reported in the medical and other 
evidence of record will dictate the extent of detail needed in the 
consultative examination report for that case. Thus, the detail and 
format for reporting the results of a purchased examination will vary 
depending upon the type of examination or testing requested. The 
reporting of information will differ from one type of examination to 
another when the requested examination relates to the performance of 
tests such as ventilatory function tests, treadmill exercise tests, or 
audiological tests. The medical report must be complete enough to help 
the Board determine the nature, severity, duration of the impairment, 
and residual functional capacity. Pertinent points in the claimant's 
medical history, such as a description of chest pain, will reflect the 
claimant's statements of his or her symptoms, not simply the physician's 
or psychologist's statements or conclusions. The examining physician's 
or psychologist's report of the consultative examination will include 
the objective medical facts.
    (c) Elements of a complete examination. A complete examination is 
one which involves all the elements of a standard examination in the 
applicable medical specialty. When a complete examination is involved, 
the report will include the following elements:
    (1) The claimant's major or chief complaint(s).
    (2) A detailed description, within the area of speciality of the 
examination, of the history of the claimant's major complaint(s).
    (3) A description, and disposition, of pertinent ``positive,'' as 
well as ``negative,'' detailed findings based on the history, 
examination and laboratory test(s) related to the major complaint(s) and 
any other abnormalities reported or found during examination or 
laboratory testing.
    (4) The results of laboratory and other tests (e.g., x-rays) 
performed according to the requirements stated in the Listing of 
Impairments (see appendix 1 of this part).
    (5) The diagnosis and prognosis for the claimant's impairment(s).
    (6) A statement as to what the claimant can still do despite his or 
her impairment(s) (except in disability claims for remarried widows and 
widowers, and surviving divorced spouses). This statement must describe 
the consultative physician's or psychologist's opinion concerning the 
claimant's ability, despite his or her impairment(s), to do basic work 
activities such as sitting, standing, lifting, carrying, handling 
objects, hearing, speaking, and traveling: and, in cases of mental 
impairment(s), the consultative physician's or psychologist's opinion as 
to the claimant's ability to reason or make occupational, personal, or 
social adjustments.
    (7) When less than a complete examination is required (for example, 
a specific test or study is needed), not every element is required.
    (d) Signature requirements. All consultative examination reports 
will be personally reviewed and signed by the physician or psychologist 
who actually performed the examination. This attests to the fact that 
the physician or psychologist doing the examination or

[[Page 214]]

testing is solely responsible for the report contents and for the 
conclusions, explanations or comments provided with respect to the 
history, examination and evaluation of laboratory test results.



Sec. 220.62  Reviewing reports of consultative examinations.

    (a) The Board will review the report of the consultative examination 
to determine whether the specific information requested has been 
furnished. The Board will consider these factors in reviewing the 
report:
    (1) Whether the report provides evidence which serves as an adequate 
basis for decision-making in terms of the impairment it assesses.
    (2) Whether the report is internally consistent. Whether all the 
diseases, impairments and complaints described in the history are 
adequately assessed and reported in the physical findings. Whether the 
conclusions correlate the findings from the claimant's medical history, 
physical examination and laboratory tests and explain all abnormalities.
    (3) Whether the report is consistent with the other information 
available to the Board within the specialty of the examination 
requested. Whether the report fails to mention an important or relevant 
complaint within the speciality that is noted on other evidence in the 
file (e.g., blindness in one eye, amputations, flail limbs or claw 
hands, etc.).
    (4) Whether the report is properly signed.
    (b) If the report is inadequate or incomplete, the Board will 
contact the examining consultative physician or psychologist, give an 
explanation of the Board's evidentiary needs, and ask that the physician 
or psychologist furnish the missing information or prepare a revised 
report.
    (c) Where the examination discloses new diagnostic information or 
test results which are significant to the claimant's treatment, the 
Board will consider referral of the consultative examination report to 
the claimant's treating physician or psychologist.
    (d) The Board will take steps to ensure that consultative 
examinations are scheduled only with medical sources who have the 
equipment required to provide an adequate assessment and record of the 
level of severity of the claimant's alleged impairments.



Sec. 220.63  Conflict of interest.

    All implications of possible conflict of interest between Board 
medical consultants and their medical practices will be avoided. Board 
review physicians or psychologists will not perform consultative 
examinations for the Board's disability programs without prior approval. 
In addition, they will not acquire or maintain, directly or indirectly, 
including any member of their families, any financial interest in a 
medical partnership or similar relationship in which consultative 
examinations are provided. Sometimes one of the Board's review 
physicians or psychologists will have prior knowledge of a case (e.g., 
the claimant was a patient). Where this is so, the physician or 
psychologist will not participate in the review or determination of the 
case. This does not preclude the physician or psychologist from 
submitting medical evidence based on prior treatment or examination of 
the claimant.



Sec. 220.64  Program integrity.

    The Board will not use in its program any individual or entity who 
is excluded, suspended, or otherwise barred from participation in the 
Medicare or Medicaid programs, or any other Federal or Federally-
assisted program; who has been convicted, under Federal or State law, in 
connection with the delivery of health care services, of fraud, theft, 
embezzlement, breach of fiduciary responsibility or financial abuse; who 
has been convicted under Federal or State law of unlawful manufacture, 
distribution, prescription, or dispensing of a controlled substance; 
whose license to provide health care services is revoked or suspended by 
any State licensing authority for reasons bearing on professional 
competence, professional conduct, or financial integrity; who has 
surrendered such a license while formal disciplinary proceedings 
involving professional conduct were pending; or who has had a civil 
monetary assessment or penalty imposed on such individual or entity

[[Page 215]]

for any activity described in this section or as a result of formal 
disciplinary proceedings. Also see Secs. 220.53 and 220.57(b).



                   Subpart H--Evaluation of Disability



Sec. 220.100  Evaluation of disability for any regular employment.

    (a) General. The Board uses a set evaluation process, explained in 
paragraph (b) of this section, to determine whether a claimant is 
disabled for any regular employment. This evaluation process applies to 
employees, widow(er)s, and children who have applied for annuities under 
the Railroad Retirement Act based on disability for any regular 
employment. Regular employment means substantial gainful activity as 
that term is defined in Sec. 220.141.
    (b) Steps in evaluating disability. A set order is followed to 
determine whether disability exists. The duration requirement, as 
described in Sec. 220.28, must be met for a claimant to be found 
disabled. The Board reviews any current work activity, the severity of 
the claimant's impairment(s), the claimant's residual functional 
capacity, and the claimant's age, education, and work experience. If the 
Board finds that the claimant is disabled or is not disabled at any step 
in the process, the Board does not review further. (See Sec. 220.105 if 
the claimant is not currently disabled but was previously disabled for a 
specified period of time in the past.) The steps are as follows:
    (1) Claimant is working. If the claimant is working, and the work is 
substantial gainful activity, the Board will find that he or she is not 
disabled regardless of his or her impairments, age, education, or work 
experience. If the claimant is not performing substantial gainful 
activity, the Board will follow paragraph (2) of this section.
    (2) Impairment(s) not severe. If the claimant does not have an 
impairment or combination of impairments which significantly limit his 
or her physical or mental ability to do basic work activities, the Board 
will find that the claimant is not disabled without consideration of 
age, education, or work experience. If the claimant has an impairment or 
combination of impairments which significantly limit his or her ability 
to do basic work activities, the Board will follow paragraph (3) of this 
section. (See Sec. 220.102(b) for a definition of basic work 
activities.)
    (3) Impairment(s) meets or equals one in the Listing of Impairments. 
If the claimant has an impairment or combination of impairments which 
meets the duration requirement and such impairment is listed or is 
medically equal to one which is listed in the Listing of Impairments, 
the Board will find the claimant disabled without considering his or her 
age, education or work experience. (The Listing of Impairments is 
contained in appendix 1 of this part.) If the claimant's impairment or 
combination of impairments is not listed or is not medically equal to 
one which is listed in the Listing of Impairments, the Board will follow 
paragraph (4) of this section. (Medical equivalence is discussed in 
Sec. 220.111).
    (4) Impairment(s) must prevent past relevant work. If the claimant's 
impairment or combination of impairments is not listed or is not 
medically equal to one which is listed in the Listing of Impairments, 
the Board will then review the claimant's residual functional capacity 
(see Sec. 220.120) and the physical and mental demands of past relevant 
work (see Sec. 220.130). If the Board determines that the claimant is 
still able to do his or her past relevant work, the Board will find that 
he or she is not disabled. If the claimant is unable to do his or her 
past relevant work, the Board will follow paragraph (5) of this section.
    (5) Impairment(s) must prevent any other work. (i) If the claimant 
is unable to do his or her past relevant work because of his or her 
impairment or combination of impairments, the Board will review the 
claimant's residual functional capacity and his or her age, education 
and work experience to determine if the claimant is able to do any other 
work. If the claimant cannot do other work, the Board will find him or 
her disabled. If the claimant can do other work, the Board will find the 
claimant not disabled.
    (ii) If the claimant has only a marginal education (see 
Sec. 220.129) and long work experience (i.e., 35 years or more)

[[Page 216]]

in which he or she only did arduous unskilled physical labor, and the 
claimant can no longer do this kind of work, the Board will use a 
different rule (see Sec. 220.127) to determine disability.
    (c) Once a claimant has been found eligible to receive a disability 
annuity, the Board follows a somewhat different order of evaluation to 
determine whether the claimant's eligibility continues as explained in 
Sec. 220.180.



Sec. 220.101  Evaluation of mental impairments.

    (a) General. The steps outlined in Sec. 220.100 apply to the 
evaluation of physical and mental impairments. In addition, in 
evaluating the severity of a mental impairment(s), the Board will follow 
a special procedure at each administrative level of review. Following 
this procedure will assist the Board in--
    (1) Identifying additional evidence necessary for the determination 
of impairment severity;
    (2) Considering and evaluating aspects of the mental impairment(s) 
relevant to the claimant's ability to work; and
    (3) Organizing and presenting the findings in a clear, concise, and 
consistent manner.
    (b) Use of the procedure to record pertinent findings and rate the 
degree of functional loss. (1) This procedure requires the Board to 
record the pertinent signs, symptoms, findings, functional limitations, 
and effects of treatment contained in the claimant's case record. This 
will assist the Board in determining if a mental impairment(s) exists. 
Whether or not a mental impairment(s) exists is decided in the same way 
the question of a physical impairment is decided, i.e., the evidence 
must be carefully reviewed and conclusions supported by it. The mental 
status examination and psychiatric history will ordinarily provide the 
needed information. (See Sec. 220.27 for further information about what 
is needed to show an impairment.)
    (2) If the Board determines that a mental impairment(s) exists, this 
procedure then requires the Board to indicate whether certain medical 
findings which have been found especially relevant to the ability to 
work are present or absent.
    (3) The procedure then requires the Board to rate the degree of 
functional loss resulting from the impairment(s). Four areas of function 
considered by the Board as essential to work have been identified, and 
the degree of functional loss in those areas must be rated on a scale 
that ranges from no limitation to a level of severity which is 
incompatible with the ability to perform those work-related functions.

For the first two areas (activities of daily living and social 
functioning), the rating is done based upon the following five-point 
scale; none, slight, moderate, marked, and extreme. For the third area 
(concentration, persistence, or pace), the following five-point scale is 
used: never, seldom, often, frequent, and constant. For the fourth area 
(deterioration or decompensation in work or work-like settings), the 
following four-point scale is used: never, once or twice, repeated 
(three or more), and continual. The last two points for each of these 
scales represent a degree of limitation which is incompatible with the 
ability to perform the work-related function.
    (c) Use of the procedure to evaluate mental impairments. Following 
the rating of the degree of functional loss resulting from the 
impairment(s), the Board then determines the severity of the mental 
impairment(s).
    (1) If the four areas considered by the Board as essential to work 
have been rated to indicate a degree of limitation as ``none'' or 
``slight'' in the first and second area, ``never'' or ``seldom'' in the 
third area, and ``never'' in the fourth area, the Board can generally 
conclude that the impairment(s) is not severe, unless the evidence 
otherwise indicates that there is significant limitation of the 
claimant's mental ability to do basic work activities (see 
Sec. 220.102).
    (2) If the claimant's mental impairment(s) is severe, the Board must 
then determine if it meets or equals a listed mental impairment. This is 
done by comparing the Board's prior conclusions based on this procedure 
(i.e., the presence of certain medical findings considered by the Board 
as especially relevant to a claimant's ability to

[[Page 217]]

work and the Board's rating of functional loss resulting from the mental 
impairment(s)) against the criteria of the appropriate listed mental 
disorder(s).
    (3) If the claimant has a severe impairment(s), but the 
impairment(s) neither meets nor equals the Listings, the Board will then 
do a residual functional capacity assessment for those claimants 
(employees, widow(er)s, and children) whose applications are based on 
disability for any regular employment under the Railroad Retirement Act.
    (4) At all adjudicative levels, the Board will, in each case, 
incorporate the pertinent findings and conclusions based on this 
procedure in its decision rationale. The Board's rationale must show the 
significant history, including examination, laboratory findings, and 
functional limitations that the Board considered in reaching conclusions 
about the severity of the mental impairment(s).



Sec. 220.102  Non-severe impairment(s), defined.

    (a) Non-severe impairment(s). An impairment or combination of 
impairments is not severe if it does not significantly limit the 
claimant's physical or mental ability to do basic work activities.
    (b) Basic work activities. Basic work activities means the ability 
and aptitudes necessary to do most jobs. Examples of these include--
    (1) Physical functions such as walking, standing, sitting, lifting, 
pushing, pulling, reaching, carrying, or handling;
    (2) Capacities for seeing, hearing, and speaking;
    (3) Understanding, carrying out, and remembering simple 
instructions;
    (4) Use of judgment;
    (5) Responding appropriately to supervision, co-workers and usual 
work situations; and
    (6) Dealing with changes in a routine work setting.



Sec. 220.103  Two or more unrelated impairments--initial claims.

    (a) Unrelated severe impairments. Two or more unrelated severe 
impairments cannot be combined to meet the 12-month duration test. If 
the claimant has a severe impairment(s) and then develops another 
unrelated severe impairment(s) but neither one is expected to last for 
12 months, he or she cannot be found disabled even though the 2 
impairments in combination last for 12 months.
    (b) Concurrent impairments. If the claimant has 2 or more concurrent 
impairments which, when considered in combination, are severe, the board 
must also determine whether the combined effect of the impairments can 
be expected to continue to be severe for 12 months. If 1 or more of the 
claimant's impairments improves or is expected to improve within 12 
months, so that the combined effect of the claimant's impairments is no 
longer severe, he or she will be found to not meet the 12-month duration 
test.



Sec. 220.104  Multiple impairments.

    To determine whether the claimant's physical or mental impairment or 
impairments are of a sufficient medical severity that such impairment or 
impairments could be the basis of eligiblity under the law, the combined 
effect of all of the claimant's impairments are considered regardless of 
whether any such impairment, if considered separately, would be of 
sufficient severity. If a medically severe combination of impairments is 
found, it will be considered throughout the disability evaluation 
process. If a medically severe combination of impairments is not found, 
the claimant will be determined to be not disabled.



Sec. 220.105  Initial evaluation of a previous disability.

    (a) In some cases, the Board may determine that a claimant is not 
currently disabled but was previously disabled for a specified period of 
time in the past. This can occur when--
    (1) The disability application was filed before the claimant's 
disability ended but the Board did not make the initial determination of 
disability until after the claimant's disability ended; or
    (2) The disability application was filed after the claimant's 
disability ended but no later than the 12th month after the month the 
disability ended.

[[Page 218]]

    (b) When evaluating a claim for a previous disability, the Board 
follows the steps in Sec. 220.100 to determine whether a disability 
existed, and follows the steps in Sec. 220.180 to determine when the 
disability ended.

    Example 1. The claimant sustained multiple fractures to his left leg 
in an automobile accident which occurred on June 16, 1982. For a period 
of 18 months following the accident the claimant underwent 2 surgical 
procedures which restored the functional use of his leg. After a 
recovery period following the last surgery, the claimant returned to 
work on February 1, 1984.
    The claimant, although fully recovered medically and regularly 
employed, filed an application on December 3, 1984 for a determination 
of disability for the period June 16, 1982 through January 31, 1984. The 
Board reviewed his claim in January 1985 and determined that he was 
disabled for the prior period which began June 16, 1982 and continued 
through January 31, 1984. A disability annuity is payable to the 
employee only for the period December 1, 1983 through January 31, 1984.
    An annuity may not begin any earlier than the 1st of the 12th month 
before the month in which the application was filed (See part 218 of 
this chapter for the rules on when an annuity may begin).
    Example 2: The claimant is disabled using the same medical facts 
disclosed above, beginning June 16, 1982 (the date of the automobile 
accident). The claimant files an application for a disability annuity, 
dated December 1, 1983. However, as of February 1, 1984, and before the 
Board makes a disability determination, the claimant returns to full-
time work and is no longer considered disabled. The Board reviews the 
claimant's application in May 1984 and finds him disabled for the period 
June 16, 1982 through January 31, 1984. A disability annuity is payable 
to the employee from December 1, 1982 through January 31, 1984. (See 
part 218 of this chapter for the rules on when an annuity may begin).



                    Subpart I--Medical Considerations



Sec. 220.110  Listing of Impairments in appendix 1 of this part.

    (a) Purpose of the Listing of Impairments. The Listing of 
Impairments describes, for each of the major body systems, impairments 
which are considered severe enough to prevent a person from doing any 
substantial gainful activity. Most of the listed impairments are 
permanent or expected to result in death, or a specific statement of 
duration is made. For all others, the evidence must show that the 
impairment has lasted or is expected to last for a continuous period of 
at least 12 months.
    (b) Adult and childhood listings. The Listing of Impairments 
consists of two parts:
    (1) Part A contains medical criteria that apply to claimants age 18 
and over. The medical criteria in part A may also be applied in 
evaluating impairments in claimants under age 18 if the disease 
processes have a similar effect on adults and younger persons.
    (2) Part B contains additional medical criteria that apply only to 
the evaluation of impairments of disabled children who are between the 
ages of 16 and 18. Certain criteria in part A do not give appropriate 
consideration to the particular effects of the disease processes in 
childhood: i.e., when the disease process is generally found only in 
children or when the disease process differs in its effect on children 
than on adults. Additional criteria are included in part B, and the 
impairment categories are, to the extent possible, numbered to maintain 
a relationship with their counterparts in part A. In evaluating 
disability for a child between 16 and 18, part B will be used first. If 
the medical criteria in part B do not apply, then the medical criteria 
in part A will be used.
    (c) How to use the Listing of Impairments. Each section of the 
Listing of Impairments has a general introduction containing definitions 
of key concepts used in that section. Certain specific medical findings, 
some of which are required in establishing a diagnosis or in confirming 
the existence of the impairment for the purpose of this Listing, are 
also given in the narrative introduction. If the medical findings needed 
to support a diagnosis are not given in the introduction or elsewhere in 
the Listing, the diagnosis must still be established on the basis of 
medically acceptable clinical and laboratory techniques. Following the 
introduction in each section, the required level of severity of 
impairment is shown under ``Category of Impairments'' by one or more 
sets of medical findings. The medical findings consist of symptoms, 
signs, and laboratory findings.

[[Page 219]]

    (d) Diagnosis of impairments. The Board will not consider the 
claimant's impairment to be one listed in appendix 1 of this part solely 
because it has the diagnosis of a listed impairment. It must also have 
the findings shown in the Listing of that impairment.
    (e) Addiction to alcohol or drugs. If a claimant has a condition 
diagnosed as addiction to alcohol or drugs, this will not, by itself, be 
a basis for determining whether the claimant is, or is not, disabled. As 
with any other medical condition, the Board will decide whether the 
claimant is disabled based on symptoms, signs, and laboratory findings.



Sec. 220.111  Medical equivalence.

    (a) How medical equivalence is determined. The Board will decide 
that the claimant's impairment(s) is medically equivalent to a listed 
impairment in appendix 1 of this part if the medical findings are at 
least equal in severity and duration to the listed findings. The Board 
compares the symptoms, signs, and laboratory findings about the 
claimant's impairment(s), as shown in the medical evidence in his or her 
claim, with the medical criteria shown with the listed impairment. If 
the claimant's impairment is not listed, the Board will consider the 
listed impairment most like the claimant's impairment to decide whether 
his or her impairment is medically equal. If the claimant has more than 
one impairment, and none of them meets or equals a listed impairment, 
the Board will review the symptoms, signs, and laboratory findings about 
the claimant's impairments to determine whether the combination of his 
or her impairments is medically equal to any listed impairment.
    (b) Medical equivalence must be based on medical findings. The Board 
will base its decision about whether the claimant's impairment(s) is 
medically equal to a listed impairment on medical evidence only. Any 
medical findings in the evidence must be supported by medically 
acceptable clinical and laboratory diagnostic techniques. The Board will 
also consider the medical opinion given by one or more physicians 
employed or engaged by the Board or the Social Security Administration 
to make medical judgments.



Sec. 220.112  Conclusions by physicians concerning the claimant's disability.

    (a) General. Under the statute, the Board is responsible for making 
the decision about whether a claimant meets the statutory definition of 
disability. A claimant can only be found disabled if he or she is unable 
to do any substantial gainful activity by reason of any medically 
determinable physical or mental impairment which can be expected to 
result in death or which has lasted or can be expected to last for a 
continuous period of not less than 12 months. (See Sec. 220.28). A 
claimant's impairment must result from anatomical, physiological, or 
psychological abnormalities which are demonstrable by medically 
acceptable clinical and laboratory diagnostic techniques. (See 
Sec. 220.27). Except in cases of remarried widows, widowers, and 
surviving divorced spouses, the decision as to whether a claimant is 
disabled may involve more than medical considerations and the Board may 
have to consider such factors as age, education, and past work 
experience. Such vocational factors are not within the expertise of 
medical sources.
    (b) Medical opinions that are conclusive. A medical opinion by a 
treating source will be conclusive as to the medical issues of the 
nature and severity of a claimant's impairment(s) where the Board finds 
that (1) it is fully supported by medically acceptable clinical and 
laboratory diagnostic techniques and (2) it is not inconsistent with the 
other substantial medical evidence of record. A medical opinion that is 
not fully supported will not be conclusive.
    (c) Medical opinions that are not fully supported. If an opinion by 
a treating source(s) is not fully supported, the Board will make every 
reasonable effort (i.e., an initial request and, after 20 days, one 
follow-up request) to obtain from the claimant's treating source(s) the 
relevant evidence that supports the medical opinion(s) before the Board 
makes a determination as to whether a claimant is disabled.


[[Page 220]]


    Example: In a case involving an organic mental disorder caused by 
trauma to the head, a consultative physician, upon interview with the 
claimant, found only mild disorientation as to time and place. The 
claimant's treating physician reports that the claimant, as the result 
of his impairment, has severe disorientation as to time and place. The 
treating physician supplies office notes which follow the course of the 
claimant's illness from the date of injury to the present. These notes 
indicate that the claimant's condition is such that he has some ``good 
days'' on which he appears to be unimpaired, but generally support the 
treating physician's opinion that the claimant is severely impaired. In 
this case the treating physician's opinion will be given some weight 
over that of the consultative physician.

    (d) Inconsistent medical opinions. Where the Board finds that the 
opinion of a treating source regarding medical issues is inconsistent 
with the evidence of record, including opinions of other sources that 
are supported by medically acceptable clinical and laboratory diagnostic 
techniques, the Board must resolve the inconsistency. If necessary to 
resolve the inconsistency, the Board will secure additional independent 
evidence and/or further interpretation or explanation from the treating 
source(s) and/or the consultative physician or psychologist. The Board's 
determination will be based on all the evidence in the case record, 
including the opinions of the medical sources. In resolving an 
inconsistency, the Board will give some extra weight to the treating 
source's supported opinion(s) which interprets the medical findings 
about the nature and severity of the impairment(s).

    Example: In a case involving arthritis of the shoulder, where the X-
rays confirm bone destruction, the examinations indicate minimal 
swelling and inflammation, but the treating source supplies evidence of 
greater restriction in the range of motion than found by the 
consultative physician, the Board will ask the treating source for 
further interpretation of the range of motion studies. If the treating 
source supplies a reasonable explanation. e.g., that the individual's 
condition is subject to periods of aggravation, the treating source's 
explanation will be given some extra weight over that of the 
consultative physician.

    (e) Medical opinions that will not be considered conclusive nor 
given extra weight. The Board will not consider as conclusive nor give 
extra weight to medical opinions which are not in accord with the 
statutory or regulatory standards for establishing disability. Thus, 
opinions that the individual's impairments meet the Listing of 
Impairments in appendix 1 of this part, where the medical findings which 
are the basis for that conclusion would not meet the specific criteria 
applicable to the particular impairment as set out in the Listing will 
not be conclusive nor given extra weight. Likewise, an opinion(s) as to 
the individual's residual functional capacity which is not in accord 
with regulatory requirements set forth in Secs. 220.120 and 220.121 will 
not be conclusive nor given extra weight.

    Example 1: A medical opinion that an impairment meets listing 2.02 
but the medical findings show that the individual's visual acuity in the 
better eye after best correction is 20/100, would not be conclusive nor 
would it be given extra weight since listing 2.02 requires that the 
remaining vision in the better eye after best correction be 20/200 or 
less.
    Example 2: A medical opinion that the individual is limited to light 
work when the evidence shows that he or she can lift a maximum of 50 
pounds and lift 25 pounds frequently will not be considered as 
conclusive nor given extra weight. This is because the individual's 
exertional capacity exceeds the criteria set forth in the regulations 
for light work.



Sec. 220.113  Symptoms, signs, and laboratory findings.

    Medical findings consist of symptoms, signs, and laboratory 
findings:
    (a) Symptoms are the claimant's own description of his or her 
physical or mental impairment(s). The claimant's statements alone are 
not enough to establish that there is a physical or mental 
impairment(s).
    (b) Signs are anatomical, physiological, or psychological 
abnormalities which can be observed, apart from the claimant's own 
statements (symptoms). Signs must be shown by medically acceptable 
clinical diagnostic techniques. Psychiatric signs are medically 
demonstrable phenomena which indicate specific abnormalities of 
behavior, affect, thought, memory, orientation and contact with reality. 
They must also be shown by observable facts that can be medically 
described and evaluated.

[[Page 221]]

    (c) Laboratory findings are anatomical, physiological, or 
psychological phenomena which can be shown by the use of medically 
acceptable laboratory diagnostic techniques. Some of these diagnostic 
techniques include chemical tests, electrophysiological studies 
(electrocardiogram, electroencephalogram, etc.) x-rays, and 
psychological tests.



Sec. 220.114  Evaluation of symptoms, including pain.

    The Board considers all of the claimant's symptoms, including pain, 
and the extent to which signs and laboratory findings confirm these 
symptoms. The Board will not find the claimant disabled based on his or 
her symptoms unless medical signs or findings show a medical impairment 
that could be reasonably expected to produce those symptoms.



Sec. 220.115  Need to follow prescribed treatment.

    (a) What treatment the claimant must follow. In order to get a 
disability annuity, the claimant must follow treatment prescribed by his 
or her physician if this treatment can restore the claimant's ability to 
work.
    (b) When the claimant does not follow prescribed treatment. If the 
claimant does not follow the prescribed treatment without a good reason, 
the Board will find him or her not disabled or, if the claimant is 
already receiving a disability annuity, the Board will stop paying the 
annuity.
    (c) Acceptable reasons for failure to follow prescribed treatment. 
The following are examples of a good reason for not following treatment:
    (1) The specific medical treatment is contrary to the established 
teaching and tenets of the claimant's religion.
    (2) The prescribed treatment would be cataract surgery for one eye, 
when there is an impairment of the other eye resulting in a severe loss 
of vision and is not subject to improvement through surgery.
    (3) Surgery was previously performed with unsuccessful results and 
the same surgery is again being recommended for the same impairment.
    (4) The treatment because of its magnitude (e.g., open heart 
surgery), unusual nature (e.g., organ transplant), or other reason is 
very risky for the claimant.
    (5) The treatment involves amputation of an extremity, or a major 
part of an extremity.



                 Subpart J--Residual Functional Capacity



Sec. 220.120  Residual functional capacity, defined.

    (a) General. (1) The claimant's impairment(s) may cause physical and 
mental limitations that affect what the claimant can do in a work 
setting. Residual functional capacity is what the claimant can do 
despite his or her limitations. If the claimant has more than one 
impairment, the Board will consider all of his or her impairments of 
which the Board is aware. The Board considers the claimant's capacity 
for various functions as described in the following paragraphs: (b) 
physical abilities, (c) mental impairments, and (d) other impairments. 
Residual functional capacity is a medical assessment. However, it may 
include descriptions (even the claimant's) of the limitations that go 
beyond the symptoms that are important in diagnosis and treatment of the 
claimant's medical impairment(s) and may include observations of the 
claimant's work limitations in addition to those usually made during 
formal medical examinations.
    (2) The descriptions and observations of the limitations, when used, 
must be considered along with the rest of the claimant's medical records 
to enable the Board to decide to what extent the claimant's 
impairment(s) keeps him or her from performing particular work 
activities.
    (3) The assessment of the claimant's residual functional capacity 
for work is not a decision on whether the claimant is disabled, but is 
used as the basis for determining the particular types of work the 
claimant may be able to do despite his or her impairment(s). A 
claimant's vocational background (see Secs. 220.125 through 220.134) is 
considered along with his or her residual functional capacity in 
arriving at a disability decision.

[[Page 222]]

    (b) Physical abilities. When the Board assesses the claimant's 
physical abilities, the Board assesses the severity of his or her 
impairment(s) and determines his or her residual functional capacity for 
work activity on a regular and continuing basis. The Board considers the 
claimant's ability to do physical activities such as walking, standing, 
lifting, carrying, pushing, pulling, reaching, handling, and the 
evaluation of other physical functions. A limited ability to do these 
things may reduce the claimant's ability to do work.
    (c) Mental impairments. When the board assesses a claimant's mental 
impairment(s), the Board considers the factors, such as--
    (1) His or her ability to understand, to carry out, and remember 
instructions; and
    (2) His or her ability to respond appropriately to supervision, co-
workers, and work pressures in a work setting.
    (d) Other impairments. Some medically determinable impairments, such 
as skin impairments, epilepsy, and impairments of vision, hearing, or 
other senses, postural and manipulative limitations, and environmental 
restrictions do not limit physical exertion. If the claimant has this 
type of impairment, in addition to one that affects physical exertion, 
the Board considers both in deciding his or her residual functional 
capacity.



Sec. 220.121  Responsibility for assessing and determining residual functional capacity.

    (a) For cases at the initial or reconsideration level, the 
responsibility for determining residual functional capacity rests with 
the bureau of retirement claims. This assessment is based on all the 
evidence the Board has, including any statements regarding what the 
claimant can still do that have been provided by treating or examining 
physicians, consultative physicians, or any other physician designated 
by the Board. In any case where there is evidence which indicates the 
existence of a mental impairment, the bureau of retirement claims will 
not make a residual functional capacity determination without making 
every reasonable effort to ensure that a qualified psychiatrist or 
psychologist has provided a medical review of the case.
    (b) For cases at the hearing level or the three-member-Board review 
level, the responsibility for deciding residual functional capacity 
rests with the hearings officer or the three-member Board, respectively.



                  Subpart K--Vocational Considerations



Sec. 220.125  When vocational background is considered.

    (a) General. The Board will consider vocational factors when the 
claimant is applying for--
    (1) An employee annuity based on disability for any regular 
employment; (See Sec. 220.45(b))
    (2) Widow(er) disability annuity; or
    (3) Child's disability annuity based on disability before age 22.
    (b) Disability determinations in which vocational factors must be 
considered along with medical evidence. When the Board cannot decide 
whether the claimant is disabled on medical evidence alone, the Board 
must use other evidence.
    (1) The Board will use information from the claimant about his or 
her age, education, and work experience.
    (2) The Board will consider the doctors' reports, and hospital 
records, as well as the claimant's own statements and other evidence to 
determine a claimant's residual functional capacity and how it affects 
the work the claimant can do. Sometimes, to do this, the Board will need 
to ask the claimant to have special examinations or tests. (See 
Sec. 220.50.)
    (3) If the Board finds that the claimant can no longer do the work 
he or she has done in the past, the Board will determine whether the 
claimant can do other work (jobs) which exist in significant numbers in 
the national economy.



Sec. 220.126  Relationship of ability to do work and residual functional capacity.

    (a) If the claimant can do his or her previous work (his or her 
usual work or other applicable past work), the Board will determine he 
or she is not disabled.

[[Page 223]]

    (b) If the residual functional capacity is not enough for the 
claimant to do any of his or her previous work, the Board must still 
decide if the claimant can do any other work. To determine whether the 
claimant can do other work, the Board will consider the claimant's 
residual functional capacity, and his or her age, education, and work 
experience. Any work (jobs) that the claimant can do must exist in 
significant numbers in the national economy (either in the region where 
he or she lives or in several regions of the country).



Sec. 220.127  When the only work experience is arduous unskilled physical labor.

    (a) Arduous work. Arduous work is primarily physical work requiring 
a high level of strength or endurance. The Board will consider the 
claimant unable to do lighter work and therefore, disabled if he or she 
has--
    (1) A marginal education (see Sec. 220.129);
    (2) Work experience of 35 years or more during which he or she did 
arduous unskilled physical labor; and
    (3) A severe impairment which no longer allows him or her to do 
arduous unskilled physical labor.
    (b) Exceptions. The Board may consider the claimant not disabled 
if--
    (1) The claimant is working or has worked despite his or her 
impairment(s) (except where work is sporadic or not medically 
advisable); or
    (2) Evidence shows that the claimant has training or past work 
experience which enables him or her to do substantial gainful activity 
in another occupation with his or her impairment, either full-time or on 
reasonably regular part-time basis.

    Example: B is a 60-year-old miner with a 4th grade education who has 
a life-long history of arduous physical labor. B says that he is 
disabled because of arthritis of the spine, hips, and knees, and other 
impairments. Medical evidence shows a combination of impairments and 
establishes that these impairments prevent B from performing his usual 
work or any other type of arduous physical labor. His vocational 
background does not show that he has skills or capabilities needed to do 
lighter work which would be readily transferable to another work 
setting. Under these circumstances, the Board will find that B is 
disabled.



Sec. 220.128  Age as a vocational factor.

    (a) General. (1) Age refers to how old the claimaint is 
(chronological age) and the extent to which his or her age affects his 
or her ability to--
    (i) Adapt to a new work situation; and
    (ii) Do work in competition with others.
    (2) In determining disability, the Board does not consider age 
alone. The Board must also consider the claimant's residual functional 
capacity, education, and work experience. If the claimant is unemployed 
because of his or her age and can still do a significant number of jobs 
which exist in the national economy, the Board will find that he or she 
is not disabled. Appendix 2 of this part explains in detail how the 
Board considers age as a vocational factor. However, the Board does not 
apply these age categories mechanically in a borderline situation.
    (b) Younger person. If the claimant is under age 50, the Board 
generally does not consider that his or her age will seriously affect 
the ability to adapt to a new work situation. In some circumstances, the 
Board considers age 45 a handicap in adapting to a new work setting (see 
Rule 201.17 in appendix 2 of this part).
    (c) Person approaching advanced age. If the claimant is closely 
approaching advanced age (50-54), the Board considers that the 
claimant's age, along with a severe impairment and limited work 
experience, may seriously affect the claimant's ability to adjust to a 
significant number of jobs in the national economy.
    (d) Person of advanced age. The Board considers that advanced age 
(55 or over) is the point at which age significantly affects the 
claimant's ability to do substantial gainful activity.
    (1) If the claimant is severly impaired and of advanced age, and he 
or she cannot do medium work (see Sec. 220.132), the claimant may not be 
able to work unless he or she has skills that can be used in less 
demanding jobs which exist in significant numbers in the national 
economy.

[[Page 224]]

    (2) If the claimant is close to retirement age (60-64) and has a 
severe impairment, the Board will not consider him or her able to adjust 
to sedentary or light work unless the claimant has skills which are 
highly marketable.



Sec. 220.129  Education as a vocational factor.

    (a) General. ``Education'' is primarily used to mean formal 
schooling or other training which contributes to the claimant's ability 
to meet vocational requirements, for example, reasoning ability, 
communication skills, and arithmetical ability. If the claimant does not 
have formal schooling, this does not necessarily mean that the claimant 
is uneducated or lacks these abilities. Past work experience and the 
kinds of responsibilities the claimant had when he or she was working 
may show that he or she has intellectual abilities, although the 
claimant may have little formal education. A claimant's daily 
activities, hobbies, or the results of testing may also show that the 
claimant has significant intellectual ability that can be used to work.
    (b) How the Board evaluates the claimant's education. The importance 
of the claimant's educational background may depend upon how much time 
has passed between the completion of the claimant's formal education and 
the beginning of the claimant's physical or mental impairment(s) and 
what the claimant has done with his or her education in a work or other 
setting. Formal education completed many years before the claimant's 
impairment(s) began, or unused skills and knowledge that were a part of 
the claimant's formal education, may no longer be useful or meaningful 
in terms of ability to work. Therefore, the numerical grade level that 
the claimant completed in school may not represent his or her actual 
educational abilities. These educational abilities may be higher or 
lower than the numerical grade level that the claimant completed. 
However, if there is no other evidence to contradict it, the Board uses 
the claimant's numerical grade level to determine the claimant's 
educational abilities. The term ``education'' also includes how well the 
claimant is able to communicate in English since this ability is often 
acquired or improved by education. In evaluating the claimant's 
educational level, the Board uses the following categories:
    (1) Illiteracy. Illiteracy means the inability to read or write. The 
Board will consider the claimant illiterate if he or she cannot read or 
write a simple message such as instructions or inventory lists even 
though the claimant can sign his or her name. Generally, the illiterate 
claimant has had little or no formal schooling.
    (2) Marginal education. Marginal education means ability in 
reasoning, arithmetic, and language skills which are needed to do 
simple, unskilled types of jobs. Generally, this means a 6th grade or 
less level of education.
    (3) Limited education. Limited education means ability in reasoning, 
arithmetic, and language skills, but not enough to allow a person with 
these educational qualifications to do most of the more complex duties 
needed in semi-skilled or skilled jobs. Generally, a limited education 
is a 7th grade through 11th grade level of education.
    (4) High school education and above. High school and above means 
abilities in reasoning, arithmetic, and language skills acquired through 
formal schooling at a 12th grade level or above. The claimant with this 
level of education is generally considered able to do semi-skilled 
through skilled work.
    (5) Inability to communicate in English. Since the ability to speak, 
read, and understand English is generally learned or increased at 
school, the Board may consider this an educational factor. Because 
English is the dominant language of the country, it may be difficult for 
the claimant who does not speak and understand English to do a job, 
regardless of the amount of education he or she may have in another 
language. The claimant's ability to speak, read and understand English 
will be considered when the Board evaluates what work, if any, he or she 
can do.
    (6) Information about the claimant's education. The Board will ask 
the claimant how long he or she attended school and whether he or she 
can speak, understand, read and write in

[[Page 225]]

English, and do at least simple calculations in arithmetic. The Board 
will also consider information about how much formal or informal 
education the claimant received from his or her previous work, community 
projects, hobbies and any other activities which might help him or her 
to work.



Sec. 220.130  Work experience as a vocational factor.

    (a) General--Work experience means skills and abilities the claimant 
has acquired through work he or she has done which show the type of work 
he or she may be expected to do. Work the claimant has already been able 
to do shows the kind of work that he or she may be expected to do. The 
Board considers that the claimant's work experience is relevant and 
applies when it was done within the last 15 years, lasted long enough 
for him or her to learn to do it, and was substantial gainful activity. 
This work experience is called ``past relevant work.'' The Board does 
not usually consider that work the claimant did 15 years or more before 
the time the Board is deciding whether he or she is disabled (or when 
the disability insured status requirement was last met, if earlier) 
applies. A gradual change occurs in most jobs so that after 15 years, it 
is no longer realistic to expect that skills and abilities acquired in a 
job done then continue to apply. The 15-year guide is intended to insure 
that remote work experience is not currently applied. If the claimant 
has no work experience or worked only ``off-and-on'' or for brief 
periods of time during the 15-year period, the Board generally considers 
that these do not apply. If the claimant has acquired skills through his 
or her past work, the Board considers the claimant to have these work 
skills unless he or she cannot use them in other skilled or semi-skilled 
work that he or she can do. If the claimant cannot use his or her skills 
in other skilled or semi-skilled work, the Board will consider his or 
her work background the same as unskilled. However, even if the claimant 
has no work experience, the Board may consider that the claimant is able 
to do unskilled work because it requires little or no judgment and can 
be learned in a short period of time.
    (b) Information about the claimant's work. (1) Sometimes the Board 
will need information about the claimant's past work to make a 
disability determination. The Board may request work information from--
    (i) The claimant; and
    (ii) The claimant's employer or other person who knows about the 
claimant's work (member of family or co-worker) with the claimant's 
permission.
    (2) The Board will ask for the following information about all the 
jobs the claimant has had in the last 15 years:
    (i) The dates the claimant worked.
    (ii) All the duites the claimant did.
    (iii) Any tools, machinery, and equipment the claimant used.
    (iv) The amount of walking, standing, sitting, lifting and carrying 
the claimant did during the work day, as well as any other physical and 
mental duties of the job.
    (3) If all the claimant's work in the past 15 years has been arduous 
and unskilled, and the claimant has very little education, the Board 
will ask the claimant to tell about all of his or her work from the time 
he or she first began working. (See Sec. 220.45(b).)



Sec. 220.131  Work which exists in the national economy.

    (a) General. The Board considers that work exists in the national 
economy when it exists in significant numbers either in the region where 
the claimant lives or in several other regions of the country. It does 
not matter whether--
    (1) Work exits in the immediate area in which the claimant lives,
    (2) A specific job vacancy exists for the claimant; or
    (3) The claimant would be hired if the claimant applied for work.
    (b) How the Board determines the existence of work. Work exists in 
the national economy when there are a significant number of jobs (in one 
or more occupations) having requirements which the claimant is able to 
meet with his or her physical or mental ability and vocational 
qualifications. Isolated jobs that exist in very limited numbers in 
relatively few locations outside the region where the claimant lives are 
not considered ``work which exists in the national economy.'' The

[[Page 226]]

Board will not deny the claimant a disability annuity on the basis of 
the existence of these kinds of jobs. The Board will determine that the 
claimant is disabled if the work he or she can do does not exist in the 
national economy. If the work the claimant can do does exist in the 
national economy, the Board will determine that the claimant is not 
disabled.
    (c) Inability to obtain work. The Board will determine that the 
claimant is not disabled if he or she has the residual functional 
capacity and vocational abilities to do work which exists in the 
national economy but the claimant remains unemployed because of--
    (1) His or her inability to get work;
    (2) Lack of work in his or her local area;
    (3) The hiring practices of employers;
    (4) Technological changes in the industry in which the claimant has 
worked;
    (5) Cyclical economic conditions;
    (6) No job openings for the claimant;
    (7) The claimant not actually being hired to do work he or she could 
otherwise do; or
    (8) The claimant not wishing to do a particular type of work.
    (d) Administrative notice of job data. The following sources are 
used when the Board determines that unskilled, sedentary, light and 
medium jobs exist in the national economy:
    (1) Dictionary of Occupational Titles, published by the Department 
of Labor.
    (2) County Business Patterns, published by the Bureau of the Census.
    (3) Census Reports, also published by the Bureau of the Census.
    (4) Occupational Analyses, prepared for the Social Security 
Administration by various State employment agencies.
    (5) Occupational Outlook Handbook, published by the Bureau of Labor 
Statistics.
    (e) Use of vocational experts and other specialists. If the issue in 
determining whether the claimant is disabled is whether his or her work 
skills can be used in other work and the specific occupations in which 
they can be used, or there is a similarly complex issue, the Board may 
use the services of a vocational expert or other specialist. The Board 
will decide whether to use a vocational expert or other specialist.



Sec. 220.132  Physical exertion requirements.

    To determine the physical exertion requirements of work in the 
national economy, jobs are classified as ``sedentary'', ``light'', 
``medium'', ``heavy'', and ``very heavy.'' These terms have the same 
meaning as they have in the Dictionary of Occupational Titles, published 
by the Department of Labor. In making disability determinations the 
Board uses the following definitions:
    (a) Sedentary work. Sedentary work involves lifting no more than 10 
pounds at a time and occasionally lifting or carrying articles like 
docket files, ledgers, and small tools. Although a sedentary job is 
defined as one which involves sitting, a certain amount of walking and 
standing is often necessary in carrying out job duties. Jobs are 
sedentary if walking and standing are required occasionally and the 
other sedentary criteria are met.
    (b) Light work. Light work involves lifting no more than 20 pounds 
at a time with frequent lifting or carrying of objects weighing up to 10 
pounds. Even though the weight lifted may be very little, a job is in 
this category when it requires a good deal of walking or standing, or 
when it involves sitting most of the time with some pushing and pulling 
of arm or leg controls. To be considered capable of performing a full or 
wide range of light work, the claimant must have the ability to do 
substantially all of these activities. If the claimant can do light 
work, the Board determines that he or she can also do sedentary work, 
unless there are additional limiting factors such as loss of fine 
dexerity or inability to sit for long periods of time.
    (c) Medium work. Medium work involves lifting no more than 50 pounds 
at a time with frequent lifting or carrying of objects weighing up to 25 
pounds. If the claimant can do medium work, the Board determines that he 
or she can also do sedentary and light work.
    (d) Heavy work. Heavy work involves lifting no more than 100 pounds 
at a time with frequent lifting or carrying of objects weighing up to 50 
pounds. If the claimant can do heavy work, the Board determines that he 
or she can

[[Page 227]]

also do medium, light, and sedentary work.
    (e) Very heavy work. Very heavy work involves lifting objects 
weighing more than 100 pounds at a time with frequent lifting or 
carrying of objects weighing 50 pounds or more. If the claimant can do 
very heavy work, the Board determines that he or she can also do heavy, 
medium, light and sedentary work.



Sec. 220.133  Skill requirements.

    (a) General. To evaluate skills and to help determine the existence 
in the national economy of work the claimant is able to do, occupations 
are classified as unskilled, semi-skilled, and skilled. In classifying 
these occupations, the Board uses materials published by the Department 
of Labor.
    (b) Unskilled work. Unskilled work is work which needs little or no 
judgment to do simple duties that can be learned on the job in a short 
period of time (30 days). The job may or may not require considerable 
strength. A job is considered unskilled if the claimant can usually 
learn to do the job in 30 days, and little job training and judgment are 
needed. The claimant does not gain work skills by doing unskilled jobs. 
For example, jobs are considered unskilled if primary work duties are--
    (1) Handling;
    (2) Feeding;
    (3) Offbearing (placing or removing materials from machines which 
are automatic or operated by others); or
    (4) Machine tending.
    (c) Semi-skilled work. Semi-skilled work is work which needs some 
skills but does not require doing the more complex work duties. A job 
may be classified as semi-skilled where coordination and dexterity are 
necessary, as when hand or feet must be moved quickly to do repetitive 
tasks. Semi-skilled jobs may require--
    (1) Alertness and close attention to watching machine processes;
    (2) Inspecting, testing, or otherwise looking for irregularities;
    (3) Tending or guarding equipment, property, materials, or persons 
against loss, damage, or injury; or
    (4) Other types of activities which are similarly less complex than 
skilled work but more complex than unskilled work.
    (d) Skilled work. Skilled work requires qualifications in which a 
person uses judgment to determine the machine and manual operations to 
be performed in order to obtain the proper form, quality, or quantity of 
material to be produced. Skilled jobs may require--
    (1) Laying out work;
    (2) Estimating quality;
    (3) Determining suitability and needed quantities of materials;
    (4) Making precise measurements;
    (5) Reading blueprints or other specifications;
    (6) Making necessary computations or mechanical adjustments to 
control or regulate work; or
    (7) Dealing with people, facts, figures or abstract ideas at a high 
level of complexity.
    (e) Skills that can be used in other work (transferability)--(1) 
What the Board means by transferable skills. The Board considers the 
claimant to have skills that can be used in other jobs, when the skilled 
or semi-skilled work activities the claimant did in past work can be 
used to meet the requirements of skilled or semi-skilled work activities 
of other jobs or kinds of work. This depends largely on the similarity 
of occupationally significant work activities among different jobs.
    (2) How the Board determines skills that can be transferred to other 
jobs. Transferability is most probable and meaningful among jobs in 
which--
    (i) The same or a lesser degree of skill is required;
    (ii) The same or similar tools and machines are used; and
    (iii) The same or similar raw materials, products, processes, or 
services are involved.
    (3) Degrees of transferability. There are degrees of transferability 
of skills ranging from very close similarities to remote and incidental 
similarities among jobs. A complete similarity of all three factors is 
not necessary for transferability. However, when skills are so 
specialized or have been acquired in such an isolated vocational setting 
(like many jobs in mining, agriculture, or fishing) that they are not 
readily usable in other industries, jobs, and work settings, they are 
considered not transferable.

[[Page 228]]



Sec. 220.134  Medical-vocational guidelines in appendix 2 of this part.

    (a) The Dictionary of Occupational Titles includes information about 
jobs (classified by their exertional and skill requirements) that exist 
in the national economy. Appendix 2 of this part provides rules using 
this data reflecting major functional and vocational patterns.
    (b) The Board applies that rules in appendix 2 of this part in cases 
where a claimant is not doing substantial gainful activity and is 
prevented by a severe impairment(s) from doing vocationally relevant 
past work.
    (c) The rules in appendix 2 of this part do not cover all possible 
variations of factors. The Board does not apply these rules if one of 
the findings of fact about the claimant's vocational factors and 
residual functional capacity is not the same as the corresponding 
criterion of a rule. In these instances, the Board gives full 
consideration to all relevant facts in accordance with the definitions 
and discussions under vocational considerations. However, if the 
findings of fact made about all factors are the same as the rule, the 
Board uses that rule to decide whether that claimant is disabled.



                 Subpart L--Substantial Gainful Activity



Sec. 220.140  General.

    The work that a claimant has done during any period in which the 
claimant believes he or she is disabled may show that the claimant is 
able to do work at the substantial gainful activity level. If the 
claimant is able to engage in substantial gainful activity, the Board 
will find that the claimant is not disabled for any regular employment 
under the Railroad Retirement Act. Even if the work the claimant has 
done was not substantial gainful activity, it may show that the claimant 
is able to do more work than he or she actually did. The Board will 
consider all of the medical and vocational evidence in the claimant's 
file to decide whether or not the claimant has the ability to engage in 
substantial gainful activity.



Sec. 220.141  Substantial gainful activity, defined.

    Substantial gainful activity is work activity that is both 
substantial and gainful.
    (a) Substantial work activity. Substantial work activity is work 
activity that involves doing significant physical or mental activities. 
The claimant's work may be substantial even if it is done on a part-time 
basis or if the claimant does less, gets paid less, or has less 
responsibility than when the claimant worked before.
    (b) Gainful work activity. Gainful work activity is work activity 
that the claimant does for pay or profit. Work activity is gainful if it 
is the kind of work usually done for pay or profit, whether or not a 
profit is realized.
    (c) Some other activities. Generally, the Board does not consider 
activities like taking care of one's self, household tasks, hobbies, 
therapy, school attendance, club activities, or social programs to be 
substantial gainful activity.



Sec. 220.142  General information about work activity.

    (a) The nature of the claimant's work. If the claimant's duties 
require use of the claimant's experience, skills, supervision and 
responsibilities, or contribute substantially to the operation of a 
business, this tends to show that the claimant has the ability to work 
at the substantial gainful activity level.
    (b) How well the claimant performs. The Board considers how well the 
claimant does his or her work when the Board determines whether or not 
the claimant is doing substantial gainful activity. If the claimant does 
his or her work satisfactorily, this may show that the claimant is 
working at the substantial gainful activity level. If the claimant is 
unable, because of his or her impairments, to do ordinary or simple 
tasks satisfactorily without more supervision or assistance than is 
usually given other people doing similar work, this may show that the 
claimant is not working at the substantial gainful activity level. If 
the claimant is doing work that involves minimal duties that make little 
or no demands on the claimant and that are of little or no use to the 
claimant's

[[Page 229]]

railroad or non-railroad employer, or to the operation of a business if 
the claimant is self-employed, this does not show that the claimant is 
working at the substantial gainful activity level.
    (c) If the claimant's work is done under special conditions. Even 
though the work the claimant is doing takes into account his or her 
impairment, such as work done in a sheltered workshop or as a patient in 
a hospital, it may still show that the claimant has the necessary skills 
and ability to work at the substantial gainful activity level.
    (d) If the claimant is self-employed. Supervisory, managerial, 
advisory or other significant personal services that the claimant 
performs as a self-employed person may show that the claimant is able to 
do substantial gainful activity.
    (e) Time spent in work. While the time the claimant spends in work 
is important, the Board will not decide whether or not the claimant is 
doing substantial gainful activity only on that basis. The Board will 
still evaluate the work to decide whether it is substantial and gainful 
regardless of whether the claimant spends more time or less time at the 
job than workers who are not impaired and who are doing similar work as 
a regular means of their livelihood.



Sec. 220.143  Evaluation guides for an employed claimant.

    (a) General. The Board uses several guides to decide whether the 
work the claimant has done shows that he or she is able to do 
substantial gainful activity.
    (1) The claimant's earnings may show the claimant has done 
substantial gainful activity. The amount of the claimant's earnings from 
work the claimant has done may show that he or she has engaged in 
substantial gainful activity. Generally, if the claimant worked for 
substantial earnings, this will show that he or she is able to do 
substantial gainful activity. On the other hand, the fact that the 
claimant's earnings are not substantial will not necessarily show that 
the claimant is not able to do substantial gainful activity. The Board 
will generally consider work that the claimant is forced to stop after a 
short time because of his or her impairment(s) as an unsuccessful work 
attempt and the claimant's earnings from that work will not show that 
the claimant is able to do substantial gainful activity.
    (2) The Board considers only the amount the claimant earns. The 
Board does not consider any income not directly related to the 
claimant's productivity when the Board decides whether the claimant has 
done substantial gainful activity. If the claimant's earnings are 
subsidized, the amount of the subsidy is not counted when the Board 
determines whether or not the claimant's work is substantial gainful 
activity. Thus, where work is done under special conditions, the Board 
only considers the part of the claimant's pay which the claimant 
actually ``earns.'' For example, where a handicapped person does simple 
tasks under close and continuous supervision, the Board would not 
determine that the person worked at the substantial gainful activity 
level only on the basis of the amount of pay. A railroad or non-railroad 
employer may set a specific amount as a subsidy after figuring the 
reasonable value of the employee's services. If the claimant's work is 
subsidized and the claimant's railroad and non-railroad employer does 
not set the amount of the subsidy or does not adequately explain how the 
subsidy was figured, the Board will investigate to see how much the 
claimant's work is worth.
    (3) If the claimant is working in a sheltered or special 
environment. If the claimant is working in a sheltered workshop, the 
claimant may or may not be earning the amounts he or she is being paid. 
The fact that the sheltered workshop or similar facility is operating at 
a loss or is receiving some charitable contributions or governmental aid 
does not establish that the claimant is not earning all he or she is 
being paid. Since persons in military service being treated for a severe 
impairment usually continue to receive full pay, the Board evaluates 
work activity in a therapy program or while on limited duty by comparing 
it with similar work in the civilian work force or on the basis of 
reasonable worth of

[[Page 230]]

the work, rather than on the actual amount of the earnings.
    (b) Earnings guidelines--(1) General. If the claimant is employed, 
the Board first considers the criteria in paragraph (a) of this section 
and Sec. 220.145, and then the guides in paragraphs (b)(2), (3), (4), 
(5), and (6) of this section.
    (2) Earnings that will ordinarily show that the claimant has engaged 
in substantial gainful activity. The Board will consider that the 
earnings from the employed claimant's work activities show that the 
claimant has engaged in substantial gainful activity if--

------------------------------------------------------------------------
                                                                Monthly
                                                               earnings
                         For months                            averaged
                                                               more than
------------------------------------------------------------------------
In calendar years before 1976...............................        $200
In calendar year 1976.......................................         230
In calendar year 1977.......................................         240
In calendar year 1978.......................................         260
In calendar year 1979.......................................         280
In calendar years 1980-1989.................................         300
In January 1990-June 1999...................................         500
After June 1999.............................................         700
------------------------------------------------------------------------

    (3) Earnings that will ordinarily show that the claimant has not 
engaged in substantial gainful activity. The Board will generally 
consider that the earnings from the employed claimant's work will show 
that the claimant has not engaged in substantial gainful activity if--

------------------------------------------------------------------------
                                                                Monthly
                                                               earnings
                         For months                            averaged
                                                               less than
------------------------------------------------------------------------
In calendar years before 1976...............................        $130
In calendar year 1976.......................................         150
In calendar year 1977.......................................         160
In calendar year 1978.......................................         170
In calendar year 1979.......................................         180
In calendar years 1980-1989.................................         190
After December 1989.........................................         300
------------------------------------------------------------------------

    (4) If the claimant works in a sheltered workshop. If the claimant 
is working in a sheltered workshop or a comparable facility especially 
set up for severely impaired persons, the claimant's earnings and 
activities will ordinarily establish that the claimant has not done 
substantial gainful activity if--

------------------------------------------------------------------------
                                                                Average
                                                                monthly
                                                               earnings
                         For months                             are not
                                                                greater
                                                                 than
------------------------------------------------------------------------
In calendar years before 1976...............................        $200
In calendar year 1976.......................................         230
In calendar year 1977.......................................         240
In calendar 1978............................................         260
In calendar year 1979.......................................         280
In calendar years 1980-1989.................................         300
In January 1990-June 1999...................................         500
After June 1999.............................................         700
------------------------------------------------------------------------

    (5) If there is evidence showing that the claimant may have done 
substantial gainful activity. If there is evidence showing that the 
claimant may have done substantial gainful activity, the Board will 
apply the criteria in paragraph (b)(6) of this section regarding 
comparability and value of services.
    (6) Earnings that are not high or low enough to show whether the 
claimant engaged in substantial gainful activity. If the claimant's 
earnings, on the average, are between the amounts shown in paragraph 
(b)(2) and (3) of this section, the Board will generally consider other 
information in addition to the claimant's earnings, such as whether--
    (i) The claimant's work is comparable to that of unimpaired persons 
in the claimant's community who are doing the same or similar 
occupations as their means of livelihood, taking into account the time, 
energy, skill, and responsibility involved in the work; or
    (ii) The claimant's work, although significantly less than that done 
by unimpaired persons, is clearly worth the amounts shown in paragraph 
(b)(2) of this section, according to pay scales in the claimant's 
community.

[56 FR 12980, Mar 28, 1991, as amended at 64 FR 62976, Nov. 18, 1999]



Sec. 220.144  Evaluation guides for a self-employed claimant.

    (a) If the claimant is a self-employed claimant. The Board will 
consider the claimant's activities and their value to the claimant's 
business to decide whether the claimant has engaged in substantial 
gainful activity if the claimant is self-employed. The Board will not 
consider the claimant's income alone since the amount of income the 
claimant actually receives may depend upon a number of different factors

[[Page 231]]

like capital investment, profit sharing agreements, etc. The Board will 
generally consider work that the claimant is forced to stop after a 
short time because of his or her impairment(s) as an unsuccessful work 
attempt and the claimant's income from that work will not show that the 
claimant is able to do substantial gainful activity. The Board will 
evaluate the claimant's work activity on the value to the business of 
the claimant's services regardless of whether the claimant receives an 
immediate income for his or her services. The Board considers that the 
claimant has engaged in substantial gainful activity if--
    (1) The claimant's work activity, in terms of factors such as hours, 
skills, energy output, efficency, duties, and responsibilities, is 
comparable to that of unimpaired persons in the claimant's community who 
are in the same or similar businesses as their means of livelihood;
    (2) The claimant's work activity, although not comparable to that of 
unimpaired persons, is clearly worth the amount shown in 
Sec. 220.143(b)(2) when considered in terms of its value to the 
business, or when compared to the salary that an owner would pay to an 
employed person to do the work the claimant is doing; or
    (3) The claimant renders services that are significant to the 
operation of the business and receives a substantial income from the 
business.
    (b) What the Board means by significant services--(1) Claimants who 
are not farm landlords. If the claimant is not a farm landlord and the 
claimant operates a business entirely by himself or herself, any 
services that the claimant renders are significant to the business. If 
the claimant's business involves the services of more than one person, 
the Board will consider the claimant to be rendering significant 
services if he or she contributes more than half the total time required 
for the management of the business or he or she renders management 
services for more than 45 hours a month regardless of the total 
management time required by the business.
    (2) Claimants who are farm landlords--(i) General. If the claimant 
is a farm landlord, that is, the claimant rents farm land to another, 
the Board will consider the claimant to be rendering significant 
services if the claimant materially participates in the production or 
the management of the production of the things raised on the rented 
farm. If the claimant was given social security earnings credits because 
he or she materially participated in the activities of the farm and he 
or she continues these same activities, the Board will consider the 
claimant to be rendering significant services.
    (ii) Material participation. (A) The claimant will have established 
that he or she is materially participating if he or she--
    (1) Furnishes a large portion of the machinery, tools, and livestock 
used in the production of the things raised on the rented farm; or
    (2) Furnishes or advances monies or assumes financial responsibility 
for a substantial part of the expense involved in the production of the 
things raised on the rented farm.
    (B) The claimant will have presented strong evidence that he or she 
is materially participating if he or she periodically--
    (1) Advise or consults with the other person who under the rental 
agreement produces the things raised on the rented farm; and
    (2) Inspects the production activities on the land.
    (iii) Production. The term ``production'' refers to the physical 
work performed and the expenses incurred in producing the things raised 
on the farm. It includes activities like the actual work of planting, 
cultivating, and harvesting of crops, and the furnishing of machinery, 
implements, seed, and livestock.
    (iv) Management of the production. The term ``management of the 
production'' refers to services performed in making managerial decisions 
about the production of the crop, such as when to plant, cultivate, 
dust, spray or harvest. It includes advising and consulting, making 
inspections, and making decisions on matters, such as rotation of crops, 
the type of crops to be grown, the type of livestock to be raised, and 
the type of machinery and implements to be furnished.

[[Page 232]]

    (c) What the Board means by substantial income. After the claimant's 
normal business expenses are deducted from the claimant's gross income 
to determine net income, the Board will deduct the reasonable value of 
any unpaid help, any soil bank payments that were included as farm 
income, and impairment-related work expenses described in Sec. 220.145 
that have not been deducted in determining the claimant's net earnings 
from self-employment. The Board will consider the resulting amount of 
income from the business to be substantial if--
    (1) It averages more than the amounts described in 
Sec. 220.143(b)(2); or
    (2) It averages less than the amounts described in 
Sec. 220.143(b)(2) but the livelihood which the claimant gets from the 
business is either comparable to what it was before the claimant became 
severely impaired or is comparable to that of unimpaired self-employed 
persons in the claimant's community who are in the same or similar 
businesses as their means of livelihood.



Sec. 220.145  Impairment-related work expenses.

    (a) General. When the Board figures the claimant's earnings in 
deciding if the claimant has done substantial gainful activity, the 
Board will subtract the reasonable costs to the claimant of certain 
items and services which, because of his or her impairment(s), the 
claimant needs and uses to enable him or her to work. The costs are 
deductible even though the claimant also needs or uses the items and 
services to carry out daily living functions unrelated to his or her 
work. Paragraph (b) of this section explains the conditions for 
deducting work expenses. Paragraph (c) of this section describes the 
expenses the Board will deduct. Paragraph (d) of this section explains 
when expenses may be deducted. Paragraph (e) of this section describes 
how expenses may be allocated. Paragraph (f) of this section explains 
the limitations on deducting expenses. Paragraph (g) of this section 
explains the Board's verification procedures.
    (b) Conditions for deducting impairment-related work expenses. The 
Board will deduct impairment-related work expenses if--
    (1) The claimant is otherwise disabled as defined in Sec. 220.26;
    (2) The severity of the claimant's impairment(s) requires the 
claimant to purchase (or rent) certain items and services in order to 
work;
    (3) The claimant pays the cost of the item or service. No deduction 
will be allowed to the extent that payment has been or will be made by 
another source. No deduction will be allowed to the extent that the 
claimant has been, could be, or will be reimbursed for such cost by any 
other source (such as through a private insurance plan, Medicare or 
Medicaid, or other plan or agency). For example, if the claimant 
purchases crutches for $80 but the claimant was, could be, or will be 
reimbursed $64 by some agency, plan, or program, the Board will deduct 
only $16;
    (4) The claimant pays for the item or service in a month he or she 
is working (in accordance with paragraph (d) of this section); and
    (5) The claimant's payment is in cash (including checks or other 
forms of money). Payment in kind is not deductible.
    (c) What expenses may be deducted--(1) Payments for attendant care 
services. (i) If because of the claimant's impairment(s) the claimant 
needs assistance in traveling to and from work, or while at work the 
claimant needs assistance with personal functions (e.g., eating, 
toileting) or with work-related functions (e.g., reading, 
communicating), the payments the claimant makes for those services may 
be deducted.
    (ii) If because of the claimant's impairment(s) the claimant needs 
assistance with personal functions (e.g., dressing, administering 
medications) at home in preparation for going to and assistance in 
returning from work, the payments the claimant makes for those services 
may be deducted.
    (iii)(A) The Board will deduct payments the claimant makes to a 
family member for attendant care services only if such person, in order 
to perform the services, suffers an economic loss by terminating his or 
her employment or by reducing the number of hours he or she worked.

[[Page 233]]

    (B) The Board considers a family member to be anyone who is related 
to the claimant by blood, marriage or adoption, whether or not that 
person lives with the claimant.
    (iv) If only part of the claimant's payment to a person is for 
services that come under the provisions of paragraph (c)(1) of this 
section, the Board will only deduct that part of the payment which is 
attributable to those services. For example, an attendant gets the 
claimant ready for work and helps the claimant in returning from work, 
which takes about 2 hours a day. The rest of the attendant's 8-hour day 
is spent cleaning the claimant's house and doing the claimant's laundry, 
etc. The Board would only deduct one-fourth of the attendant's daily 
wages as an impairment-related work expense.
    (2) Payment for medical devices. If the claimant's impairment(s) 
requires that the claimant utilize medical devices in order to work, the 
payments the claimant makes for those devices may be deducted. As used 
in this subparagraph, medical devices include durable medical equipment 
which can withstand repeated use, is customarily used for medical 
purposes, and is generally not useful to a person in the absence of an 
illness or injury. Examples of durable medical equipment are 
wheelchairs, hemodialysis equipment, canes, crutches, inhalators and 
pacemakers.
    (3) Payments for prosthetic devices. If the claimant's impairment(s) 
requires that the claimant utilize a prosthetic device in order to work, 
the payments the claimant makes for that device can be deducted. A 
prosthetic device is that which replaces an internal body organ or 
external body part. Examples of prosthetic devices are artificial 
replacements of arms, legs and other parts of the body.
    (4) Payments for equipment--(i) Work-related equipment. If the 
claimant's impairment(s) requires that the claimant utilize special 
equipment in order to do his or her job, the payments the claimant makes 
for that equipment may be deducted. Examples of work-related equipment 
are one-hand typewriters, vision aids, sensory aids for the blind, 
telecommunication devices for the deaf and tools specifically designed 
to accommodate a person's impairment(s).
    (ii) Residential modifications. If the claimant's impairment(s) 
requires that the claimant make modifications to his or her residence, 
the location of the claimant's place of work will determine if the cost 
of these modifications will be deducted. If the claimant is employed 
away from home, only the cost of changes made outside of the claimant's 
home to permit the claimant to get to his or her means of transportation 
(e.g., the installation of an exterior ramp for a wheelchair confined 
person or special exterior railings or pathways for someone who requires 
crutches) will be deducted. Costs relating to modifications of the 
inside of the claimant's home will not be deducted. If the claimant 
works at home, the costs of modifying the inside of the claimant's home 
in order to create a working space to accommodate the claimant's 
impairment(s) will be deducted to the extent that the changes pertain 
specifically to the space in which the claimant works. Examples of such 
changes are the enlargement of a doorway leading into the workspace or 
modification of the workspace to accommodate problems in dexterity. 
However, if the claimant is self-employed at home, any cost deducted as 
a business expense cannot be deducted as an impairment-related work 
expense.
    (iii) Non-medical applicances and equipment. Expenses for appliances 
and equipment which the claimant does not ordinarily use for medical 
purposes are generally not deductible. Examples of these items are 
portable room heaters, air conditioners, humidifiers, dehumidifiers, and 
electric air cleaners. However, expenses for such items may be 
deductible when unusual circumstances clearly establish an impairment-
related and medically verified need for such an item because it is for 
the control of the claimant's disabling impairment(s), thus enabling the 
claimant to work. To be considered essential, the item must be of such a 
nature that if it were not available to the claimant there would be an 
immediate adverse impact on the claimant's ability to function in his or 
her work activity. In this situation, the expense is deductible whether 
the item is used

[[Page 234]]

at home or in the working place. An example would be the need for an 
electric air cleaner by a person with severe respiratory disease who 
cannot function in a non-purified air environment. An item such as an 
exercycle is not deductible if used for general physical fitness. If an 
exercycle is prescribed and used as necessary treatment to enable the 
claimant to work, the Board will deduct payments the claimant makes 
toward its cost.
    (5) Payments for drugs and medical services. (i) If the claimant 
must use drugs or medical services (including diagnostic procedures) to 
control his or her impairment(s), the payments the claimant makes for 
them may be deducted. The drugs or services must be prescribed (or 
utilized) to reduce or eliminate symptoms of the claimant's 
impairment(s) or to slow down its progression. The diagnostic procedures 
must be performed to ascertain how the impairment(s) is progressing or 
to determine what type of treatment should be provided for the 
impairment(s).
    (ii) Examples of deductible drugs and medical services are anti-
convulsant drugs to control epilepsy or anticonvulsant blood level 
monitoring; antidepressant medication for mental impairments; medication 
used to allay the side effects of certain treatments; radiation 
treatment or chemotherapy for cancer patients; corrective surgery for 
spinal impairments; electroencephalograms and brain scans related to a 
disabling epileptic impairment; tests to determine the efficacy of 
medication on a diabetic condition; and immunosuppressive medications 
that kidney transplant patients regularly take to protect against graft 
rejection.
    (iii) The Board will only deduct the costs of drugs or services that 
are directly related to the claimant's impairment(s). Examples of non-
deductible items are routine annual physical examinations, optician 
services (unrelated to a disabling visual impairment) and dental 
examinations.
    (6) Payments for similar items and services--(i) General. If the 
claimant is required to utilize items and services not specified in 
paragraphs (c)(1) through (5) of this section, but which are directly 
related to his or her impairment(s) and which the claimant needs to 
work, their costs are deductible. Examples of such items and services 
are medical supplies and services not discussed above, the purchase and 
maintenance of a dog guide which the claimant needs to work, and 
transportation.
    (ii) Medical supplies and services not described above. The Board 
will deduct payments the claimant makes for expendable medical supplies, 
such as incontinence pads, catheters, bandages, elastic stockings, face 
masks, irrigating kits, and disposable sheets and bags. The Board will 
also deduct payments the claimant makes for physical therapy which the 
claimant requires because of his or her impairment(s) and which the 
claimant needs in order to work.
    (iii) Payments for transportation costs. The Board will deduct 
transportation costs in these situations:
    (A) The claimant's impairment(s) requires that in order to get to 
work the claimant needs a vehicle that has structural or operational 
modifications. The modifications must be critical to the claimant's 
operation or use of the vehicle and directly related to the claimant's 
impairment(s). The Board will deduct the cost of the modifications, but 
not the cost of the vehicle. The Board will also deduct a mileage 
allowance for the trip to and from work. The allowance will be based on 
data compiled by the Federal Highway Administration relating to vehicle 
operating costs.
    (B) The claimant's impairment(s) requires the claimant to use driver 
assistance, taxicabs or other hired vehicles in order to work. The Board 
will deduct amounts paid to the driver and, if the claimant's own 
vehicle is used, the Board will also deduct a mileage allowance, as 
provided in paragraph (c)(6)(iii)(A) of this section, for the trip to 
and from work.
    (C) The claimant's impairment(s) prevents the claimant from taking 
available public transportation to and from work and the claimant must 
drive his or her (unmodified) vehicle to work. If the Board can verify 
through the claimant's physician or other sources that the need to drive 
is caused by the claimant's impairment(s) (and

[[Page 235]]

not due to the unavailability of public transportation), the Board will 
deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) of 
this section, for the trip to and from work.
    (7) Payments for installing, maintaining, and repairing deductible 
items. If the device, equipment, appliance, etc., that the claimant 
utilizes qualifies as a deductible item as described in paragraphs 
(c)(2), (3), (4) and (6) of this section, the costs directly related to 
installing, maintaining and repairing these items are also deductible. 
(The costs which are associated with modifications to a vehicle are 
deductible. Except for a mileage allowance, as provided for in paragraph 
(c)(6)(iii)(A) of this section, the costs which are associated with the 
vehicle itself are not deductible.)
    (d) When expenses may be deducted--(1) Effective date. To be 
deductible, an expense must be incurred after November 30, 1980. An 
expense may be considered incurred after that date if it is paid 
thereafter even though pursuant to a contract or other arrangement 
entered into before December 1, 1980.
    (2) Payments for services. A payment the claimant makes for services 
may be deducted if the services are received while the claimant is 
working and the payment is made in a month the claimant is working. The 
Board considers the claimant to be working even though he or she must 
leave work temporarily to receive the services.
    (3) Payments for items. A payment the claimant makes toward the cost 
of a deductible item (regardless of when it is acquired) may be deducted 
if payment is made in a month claimant is working. See paragraph (e)(4) 
of this section when purchases are made in anticipation of work.
    (e) How expenses are allocated--(1) Recurring expenses. The claimant 
may pay for services on a regular periodic basis, or the claimant may 
purchase an item on credit and pay for it in regular periodic 
installments or the claimant may rent an item. If so, each payment the 
claimant makes for the services and each payment the claimant makes 
toward the purchase or rental (including interest) is deductible in the 
month it is made.

    Example: B starts work in October 1981 at which time she purchases a 
medical device at a cost of $4,800 plus interest charges of $720. Her 
monthly payments begin in October. She earns and receives $400 a month. 
The term of the installment contract is 48 months. No downpayment is 
made. The monthly allowable deduction for the item would be $115 ($5,520 
divided by 48) for each month of work during the 48 months.

    (2) Non-recurring expenses. Part or all of the claimant's expenses 
may not be recurring. For example, the claimant may make a one-time 
payment in full for an item or service or make a downpayment. If the 
claimant is working when he or she makes the payment, the Board will 
either deduct the entire amount in the month the claimant pays it or 
allocate the amount over a 12-consecutive-month period beginning with 
the month of payment, whichever the claimant selects.

    Example: A begins working in October 1981 and earns $525 a month. In 
the same month, he purchases and pays for a deductible item at a cost of 
$250. In this situation the Board could allow a $250 deduction for 
October 1981, reducing A's earnings below the substantial gainful 
activity level for that month.
    If A's earnings had been $15 above the substantial gainful activity 
earnings amount, A probably would select the option of projecting the 
$250 payment over the 12-month period, October 1981-September 1982, 
giving A an allowable deduction of $20.83 a month for each month of work 
during that period. This deduction would reduce A's earnings below the 
substantial gainful activity level for 12 months.

    (3) Allocating downpayments. If the claimant makes a downpayment, 
the Board will, if the claimant chooses, make a separate calculation for 
the downpayment in order to provide for uniform monthly deductions. In 
these situations the Board will determine the total payment that the 
claimant will make over a 12-consecutive-month period beginning with the 
month of the downpayment and allocate that amount over the 12 months. 
Beginning with the 13th month, the regular monthly payment will be 
deductible. This allocation process will be for a shorter period if the 
claimant's regular monthly payments will extend over a period of less 
than 12 months.

    Example 1. C starts working in October 1981, at which time he 
purchases special equipment at a cost of $4,800, paying $1,200

[[Page 236]]

down. The balance of $3,600, plus interest of $540, is to be repaid in 
36 installments of $115 a month beginning November 1981. C earns $500 a 
month. He chooses to have the downpayment allocated. In this situation 
the Board would allow a deduction of $205.42 a month for each month of 
work during the period October 1981 through September 1982. After 
September 1982, the deduction amount would be the regular monthly 
payment of $115 for each month of work during the remaining installment 
period.

Explanation:
Downpayment in October 1981.........................              $1,200
  Monthly payments:
    November 1981 through September 1982............               1,265
                                                     -------------------
                                                       12/ $2,465=205.42
 

    Example 2. D, while working, buys a deductible item in July 1981, 
paying $1,450 down. However, his first monthly payment of $125 is not 
due until September 1981. D chooses to have the downpayment allocated. 
In this situation, the Board would allow a deduction of $225 a month for 
each month of work during the period July 1981 through June 1982. After 
June 1982, the deduction amount would be the regular monthly payment of 
$125 for each month of work.

Explanation:
Downpayment in July 1981............................              $1,450
  Monthly payments:
    September 1981 through June 1982................               1,250
                                                     -------------------
                                                         12/ $2,700=$225
 

    (4) Payments made in anticipation of work. A payment made toward the 
cost of a deductible item that the claimant made in any of the 11 months 
preceding the month he or she started working will be taken into account 
in determining the claimant's impairment-related work expenses. When an 
item is paid for in full during the 11 months preceding the month the 
claiment started working, the payment will be allocated over the 12-
consecutive-month period beginning with the month of the payment. 
However, the only portion of the payment which may be deductible is the 
portion allocated to the month work begins and the following months. For 
example, if an item is purchased 3 months before the month work began 
and is paid for with a one-time payment of $600, the deductible amount 
would be $450 ($600 divided by 12, multiplied by 9). Installment 
payments (including a downpayment) that the claimant made for a 
particular item during the 11 months preceding the month he or she 
started working will be totalled and considered to have been made in the 
month of the claimant's first payment for that item within this 11-month 
period. The sum of these payments will be allocated over the 12-
consecutive-month period beginning with the month of the claimant's 
first payment (but never earlier than 11 months before the month work 
began). However, the only portion of the total which may be deductible 
is the portion allocated to the month work begins and the following 
months. For example, if an item is purchased 3 months before the month 
work began and is paid for in 3 monthly installments of $200 each, the 
total payment of $600 will be considered to have been made in the month 
of the first payment, that is, 3 months before the month work began. The 
deductible amount would be $450 ($600 divided by 12, multiplied by 9). 
The amount, as determined by these formulas, will then be considered to 
have been paid in the first month of work. The Board will deduct either 
this entire amount in the first month of work or allocate it over a 12-
consecutive-month period, beginning with the first month of work, 
whichever the claimant selects. In the above examples, the claimant 
would have the choice of having the entire $450 deducted in the first 
month of work or having $37.50 a month ($450 divided by 12) deducted for 
each month that he or she works over a 12-consecutive-month period, 
beginning with the first month of work. To be deductible, the payments 
must be for durable items such as medical devices, prostheses, work-
related equipment, residential modifications, non-medical appliances and 
vehicle modifications. Payments for services and expendable items such 
as drugs, oxygen, diagnostic procedures, medical supplies and vehicle 
operating costs are not deductible for the purpose of this paragraph.
    (f) Limits on deductions. (1) The Board will deduct the actual 
amounts the claimant pays towards his or her impairment-related work 
expenses unless the amounts are unreasonable. With respect to durable 
medical equipment,

[[Page 237]]

prosthetic devices, medical services, and similar medically-related 
items and services, the Board will apply the prevailing charges under 
Medicare (Part B of the title XVIII, Health Insurance for the Aged and 
Disabled) to the extent that this information is readily available. 
Where the Medicare guides are used, the Board will consider the amount 
that the claimant pays to be reasonable if it is no more than the 
prevailing charge for the same item or service under the Medicare 
guidelines. If the amount the claimant actually pays is more than the 
prevailing charge for the same item under the Medicare guidelines, the 
Board will deduct from the claimant's earnings the amount the claimant 
paid to the extent he or she establishes that the amount is consistent 
with the standard or normal charge for the same or similar item or 
service in his or her community. For items and services that are not 
listed in the Medicare guidelines, and for items and services that are 
listed in the Medicare guidelines but for which such guides cannot be 
used because the information is not readily available, the Board will 
consider the amount the claimant pays to be reasonable if it does not 
exceed the standard or normal charge for the same or similar item or 
service in the claimant's community.
    (2) Impairment-related work expenses are not deducted in computing 
the claimant's earnings for purposes of determining whether the 
claimant's work was ``services'' as described in Sec. 220.170.
    (3) The decision as to whether the claimant performed substantial 
gainful activity in a case involving impairment-related work expenses 
for items or services necessary for the claimant to work generally will 
be based upon the claimant's ``earnings'' and not on the value of 
``services'' the claimant rendered. (See Secs. 220.143 (b)(6)(i) and 
(ii), and 220.144(a)). This is not necessarily so, however, if the 
claimant is in a position to control or manipulate his or her earnings.
    (4) No deduction will be allowed to the extent that any other source 
has paid or will pay for an item or service. No deduction will be 
allowed to the extent that the claimant has been, could be, or will be 
reimbursed for payments he or she made. (See paragraph (b)(3) of this 
section.)
    (5) The provisions described in the foregoing paragraphs in this 
section are effective with respect to expenses incurred on or after 
December 1, 1980, although expenses incurred after November 1980, as a 
result of contractual or other arrangements entered into before December 
1980, are deductible. For months before December 1980, the Board will 
deduct impairment-related work expenses from the claimant's earnings 
only to the extent they exceeded the normal work-related expenses the 
claimant would have had if the claimant did not have his or her 
impairment(s). The Board will not deduct expenses, however, for those 
things with the claimant needed even when he or she was not working.
    (g) Verification. The Board will verify the claimant's need for 
items or services for which deductions are claimed, and the amount of 
the charges for those items or services. The claimant will also be asked 
to provide proof that he or she paid for the items or services.



           Subpart M--Disability Annuity Earnings Restrictions



Sec. 220.160  How work for a railroad employer affects a disability annuity.

    A disability annuity is not payable and the annuity must be returned 
for any month in which the disabled annuitant works for an employer as 
defined in part 202 of this chapter.



Sec. 220.161  How work affects an employee disability annuity.

    In addition to the condition in Sec. 220.160, the employee's 
disability annuity is not payable and the employee must return the 
annuity payment for any month in which the employee earns more than $400 
(after deduction of impairment-related work expenses) in employment or 
self-employment of any kind. Any annuity amounts withheld because the 
annuitant earned over $400 in a month may be paid after the end of the 
year, as shown in Sec. 220.164. The $400 monthly limit no longer applies 
when the employee becomes 65 years old and the disability annuity is 
converted to an age annuity. See

[[Page 238]]

Sec. 220.145 for the definition of impairment-related work expenses.



Sec. 220.162  Earnings report.

    (a) General. Any annuitant receiving an annuity based on disability 
must report to the Board any work and earnings as described in 
Sec. 220.160 and Sec. 220.161. The report may be a written or oral 
statement by the annuitant, or a person acting for the annuitant, made 
or sent to a representative of the Board. The report should include the 
name and address of the railroad or non-railroad employer, a description 
of the work and the amount of gross wages (before deductions) or the net 
income from self-employment (earnings after deducting business 
expenses).
    (b) Employee reports. In addition to the requirement described in 
(a), a report of earnings over $400 a month must be made before the 
employee accepts a disability annuity (the annuity payment is issued and 
not returned) for the second month after the first month in which 
earnings are over $400. Along with the report, the employee must return 
the annuity payment for any month in which he or she earns over $400.



Sec. 220.163  Employee penalty deductions.

    If the employee earns over $400 in a month and does not report it 
within the time limit shown in Sec. 220.162(b), a penalty is imposed. 
The penalty deduction for the first failure to report equals the annuity 
amount for the first month in which the employee earned over $400. The 
deduction for a second or later failure to report equals the annuity 
amount for each month in which the employee earned over $400 and failed 
to report it on time.



Sec. 220.164  Employee end-of-year adjustment.

    (a) General. After the end of a year, the employee whose annuity was 
withheld for earnings over $400 in a month receives a form on which to 
report his or her earnings for the year.
    (b) Earnings are less than $5000. If the employee's yearly earnings 
are less than $5000, all annuity payments and penalties withheld during 
the year because of earnings over $4800 are paid.
    (c) Earnings are $5000 or more. (1) If the employee's yearly 
earnings are $5000 or more, the annuity payments are adjusted so that 
the employee does not have more than one regular deduction for every 
$400 of earnings over $4800. The last $200 or more of earnings over 
$4800 is treated as if it were $400. If the annuity rate changes during 
the year, any annuities due at the end of the year are paid first for 
months in which the annuity rate is higher. Penalty deductions may also 
apply as described in paragraph (c)(2) of this section.
    (2) If the employee's yearly earnings are $5000 or more and the 
employee failed to report monthly earnings over $400 within the time 
limit described in Sec. 220.162(b), penalty deductions will also apply. 
If it is the employee's first failure to report, the penalty deduction 
is equal to one month's annuity. If it is the employee's second or later 
failure to report, the penalty deduction equals the annuity amount for 
each month in which the employee earned over $400 and failed to report 
it on time.
    (d) This section is illustrated by the following examples:

    Example 1: Employee is awarded a disability annuity based upon his 
inability to engage in his regular railroad occupation effective January 
1, 1989. During that year, he works April through October, for which he 
receives $785 per month. He does not report these earnings to the Board 
until January of the following year. The employee is considered to have 
earned $5600 (7 x $785=$5495, which is rounded up to the nearest $400). 
He forfeits three months of annuities:
[GRAPHIC] [TIFF OMITTED] TC14NO91.107

    Example 2: The same employee in the following year also works April 
through October, for which he receives $785 per month. This time he 
reports the earnings on October 31. This year he forfeits 6 months of 
annuity payments, 2 due to earnings, computed as above, and 4 more due 
to penalty deductions for failure to report earnings over $400 for the 
months April through July. There are no penalty deductions with respect 
to the months August, September, and October, since the employee 
reported these earnings prior to accepting an annuity for the second 
month after the month of earnings in excess of $400.

[[Page 239]]



  Subpart N--Trial Work Period and Reentitlement Period for Annuitants 
                   Disabled for Any Regular Employment



Sec. 220.170  The trial work period.

    (a) Definition of the trial work period. The trial work period is a 
period during which the annuitant may test his or her ability to work 
and still be considered disabled. The trial work period begins and ends 
as described in paragraph (e) of this section. During this period, the 
annuitant may perform ``services'' (see paragraph (b) of this section) 
in as many as 9 months, but these months do not have to be consecutive. 
The Board will not consider those services as showing that the 
annuitant's disability has ended until the annuitant has performed 
services in at least 9 months. However, after the trial work period has 
ended, the Board will consider the work the annuitant did during the 
trial work period in determining whether the annuitant's disability has 
ended at any time after the trial work period.
    (b) What the Board means by services. When used in this section, 
``services'' means any activity, even though it is not substantial 
gainful activity, which is done by the annuitant in employment or self-
employment for pay or profit, or is the kind normally done for pay or 
profit. If the annuitant is employed, the Board will consider his or her 
work to be ``services'' if in any calendar year after 1989 the annuitant 
earns more than $200 a month ($75 a month is the figure for earnings in 
any calendar year before 1989). If the annuitant is self-employed, the 
Board will consider his or her activities ``services'' if in any 
calendar year after 1989 the annuitant's net earnings are more than $200 
a month, ($75 a month is the figure for earnings in any calendar year 
before 1989), or the annuitant works more than 40 hours a month in the 
business in any calendar year after 1989 (15 hours a month is the figure 
for calendar years before 1990). The Board generally does not consider 
work to be ``services'' when it is done without remuneration or merely 
as therapy or training, or when it is work usually done in a daily 
routine around the house, or in self-care.
    (c) Limitations on the number of trial work periods. The annuitant 
may have only one trial work period during each period in which he or 
she is disabled for any regular employment as defined in Sec. 220.26.
    (d) Who is and is not entitled to a trial work period. (1) 
Generally, the annuitant is entitled to a trial work period if he or she 
is entitled to an annuity based on disability.
    (2) An annuitant is not entitled to a trial work period if he or she 
is in a second period of disability for which he or she did not have to 
complete a waiting period before qualifying for a disability annuity.
    (e) Payment of the disability annuity during the trial work period. 
(1) The disability annuity of an employee, child, or widow(er) who is 
disabled for any regular employment will not be paid for any month in 
the trial work period in which the annuitant works for an employer 
covered by the Railroad Retirement Act (see Sec. 220.160).
    (2) The disability annuity of an employee who is disabled for any 
regular employment will not be paid for any month in this period in 
which the employee annuitant earns more than $400 in employment or self-
employment (see Sec. 220.161 and Sec. 220.164).
    (3) If the disability annuity for an employee, child, or widow(er) 
who is disabled for any regular employment is stopped because of work 
during the trial work period, and the disability annuitant discontinues 
that work before the end of the trial work period, the disability 
annuity may be started again without a new application and a new 
determination of disability.
    (f) When the trial work period begins and ends. (1) The trial work 
period begins with whichever of the following calendar months is the 
later--
    (i) The annuity beginning date;
    (ii) The month after the end of the appropriate waiting period; or
    (iii) The month the application for disability is filed.
    (2) The trial work period ends with the close of whichever of the 
following calendar months is the earlier--
    (i) The 9th month (whether or not the months have been consecutive) 
in which the annuitant performed services; or

[[Page 240]]

    (ii) The month in which new evidence, other than evidence relating 
to any work the annuitant did during the trial work period, shows that 
the annuitant is not disabled, even though he or she has not worked a 
full 9 months. The Board may find that the annuitant's disability has 
ended at any time during the trial work period if the medical or other 
evidence shows that the annuitant is no longer disabled.



Sec. 220.171  The reentitlement period.

    (a) General. (1) The reentitlement period is an additional period 
after the 9 months of trial work during which the annuitant may continue 
to test his or her ability to work if he or she has a disabling 
impairment(s).
    (2) The disability annuity of an employee, child, or widow(er) who 
is disabled for any regular employment will not be paid for--
    (i) Any month, after the 3rd month, in this period in which the 
annuitant does substantial gainful activity; or
    (ii) Any month in this period in which the annuitant works for an 
employer covered by the Railroad Retirement Act ( see Sec. 220.160).
    (3) The disability annuity of an employee who is disabled for any 
regular employment will not be paid for any month in this period in 
which the employee annuitant earns more than $400 in employment or self-
employment (see Sec. 220.161 and Sec. 220.164).
    (4) If the disability annuity of an employee, child or widow(er) who 
is disabled for any regular employment is stopped because of work during 
the trial work period or reentitlement period, and the disability 
annuitant discontinues that work before the end of either period, the 
disability annuity may be started again without a new application or a 
new determination of disability.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of nine months 
of trial work but cannot begin earlier than December 1, 1980. It ends 
with whichever is earlier--
    (1) The month before the first month in which the annuitant's 
impairment(s) no longer exists or is not medically disabling; or
    (2) The last day of the 36th month following the end of the 
annuitant's trial work period.
    (c) When the annuitant is not entitled to a reentitlement period. 
The annuitant is not entitled to a reentitlement period if--
    (1) He or she is not entitled to a trial work period; or
    (2) His or her disability ended before the annuitant completed nine 
months of trial work in that period in which he or she was disabled.



Subpart O--Continuing or Stopping Disability Due to Substantial Gainful 
                     Activity or Medical Improvement



Sec. 220.175  Responsibility to notify the Board of events which affect disability.

    If the annuitant is entitled to a disability annuity because he or 
she is disabled for any regular employment, the annuitant should 
promptly tell the Board if--
    (a) His or her impairment(s) improves;
    (b) He or she returns to work;
    (c) He or she increases the amount of work; or
    (d) His or her earnings increase.



Sec. 220.176  When disability continues or ends.

    There is a statutory requirement that, if an annuitant is entitled 
to a disability annuity, the annuitant's continued entitlement to such 
an annuity must be reviewed periodically until the employee or child 
annuitant reaches age 65 and the widow(er) annuitant reaches age 60. 
When the annuitant is entitled to a disability annuity as a disabled 
employee, disabled widow(er) or as a person disabled since childhood, 
there are a number of factors to be considered in deciding whether his 
or her disability continues. The Board must first consider whether the 
annuitant has worked and, by doing so, demonstrated the ability to 
engage in substantial gainful activity. If so, the disability will end. 
If the annuitant has not demonstrated the ability to engage in 
substantial gainful activity, then the Board must determine

[[Page 241]]

if there has been any medical improvement in the annuitant's 
impairment(s) and, if so, whether this medical improvement is related to 
the annuitant's ability to work. If an impairment(s) has not medically 
improved, the Board must consider whether one or more of the exceptions 
to medical improvement applies. If medical improvement related to 
ability to work has not occurred and no exception applies, the 
disability will continue. Even the medical improvement related to 
ability to work has occurred or an exception applies (see Sec. 220.179 
for exceptions), in most cases the Board must also show that the 
annuitant is currently able to engage in substantial gainful activity 
before it can find that the annuitant is no longer disabled.



Sec. 220.177  Terms and definitions.

    There are several terms and definitions which are important to know 
in order to understand how the Board reviews whether a disability for 
any regular employment continues:
    (a) Medical improvement. Medical improvement is any decrease in the 
medical severity of an impairment(s) which was present at the time of 
the most recent favorable medical decision that the annuitant was 
disabled or continued to be disabled. A determination that there has 
been a decrease in medical severity must be based on a comparison of 
prior and current medical evidence showing changes (improvement) in the 
symptoms, signs or laboratory findings associated with the 
impairment(s).

    Example 1: The claimant was awarded a disability annuity due to a 
herniated disc. At the time of the Board's prior decision granting the 
claimant an annuity he had had a laminectomy.
    Postoperatively, a myelogram still shows evidence of a persistant 
deficit in his lumbar spine. He had pain in his back, and pain and a 
burning sensation in his right foot and leg. There were no muscle 
weakness or neurological changes and a modest decrease in motion in his 
back and leg. When the Board reviewed the annuitant's claim to determine 
whether his disability should be continued, his treating physician 
reported that he had seen the annuitant regularly every 2 to 3 months 
for the past 2 years. No further myelograms had been done, complaints of 
pain in the back and right leg continued especially on sitting or 
standing for more than a short period of time. The annuitant's doctor 
further reported a moderately decreased range of motion in the 
annuitant's back and right leg, but again no muscle atrophy or 
neurological changes were reported. Medical improvement has not occurred 
because there has been no decrease in the severity of the annuitant's 
back impairment as shown by changes in symptoms, signs or laboratory 
findings.
    Example 2: The claimant was awarded a disability annuity due to 
rheumatoid arthritis. At the time, laboratory findings were positive for 
this impairment. The claimant's doctor reported persistent swelling and 
tenderness of the claimant's fingers and wrists and that he complained 
of joint pain. Current medical evidence shows that while laboratory 
tests are still positive for rheumatoid arthritis, the annuitant's 
impairment has responded favorably to therapy so that for the last year 
his fingers and wrists have not been significantly swollen or painful. 
Medical improvement has occurred because there has been a decrease in 
the severity of the annuitant's impairment as documented by the current 
symptoms and signs reported by his physician. Although the annuitant's 
impairment is subject to temporary remission and exacerbations, the 
improvement that has occurred has been sustained long enough to permit a 
finding of medical improvement. The Board would then determine if this 
medical improvement is related to the annuitant's ability to work.

    (b) Medical improvement not related to ability to do work. Medical 
improvement is not related to the annuitant's ability to work if there 
has been a decrease in the severity of the impairment(s) (as defined in 
paragraph (a) of this section) present at the time of the most recent 
favorable medical decision, but no increase in that annuitant's 
functional capacity to do basic work activities as defined in paragraph 
(d) of this section. If there has been any medical improvement in an 
annuitant's impairment(s), but it is not related to the annuitant's 
ability to do work and none of the exceptions applies, the annuity will 
be continued.

    Example: An annuitant was 65 inches tall and weighed 246 pounds at 
the time his disability was established. He had venous insufficiency and 
persistent edema in his legs. At the time, the annuitant's ability to do 
basic work activities was affected because he was able to sit for 6 
hours, but was able to stand or walk only occasionally. At the time of 
the Board's continuing disability review, the annuitant had undergone a 
vein stripping operation. He now weighed 220 pounds and had

[[Page 242]]

intermittent edema. He is still able to sit for 6 hours at a time and to 
stand or walk only occasionally although he reports less discomfort on 
walking. Medical improvement has occurred because there has been a 
decrease in the severity of the existing impairment as shown by his 
weight loss and the improvement in his edema. This medical improvement 
is not related to his ability to work, however, because his functional 
capacity to do basic work activities (i.e., the ability to sit, stand 
and walk) has not increased.

    (c) Medical improvement that is related to ability to do work. 
Medical improvement is related to an annuitant's ability to work if 
there has been a decrease in the severity (as defined in paragraph (a) 
of this section) of the impairment(s) present at the time of the most 
recent favorable medical decision and an increase in the annuitant's 
functional capacity to do basic work activities as discussed in 
paragraph (d) of this section. A determination that medical improvement 
related to an annuitant's ability to do work has occurred does not, 
necessarily, mean that such annuitant's disability will be found to have 
ended unless it is also shown that the annuitant is currently able to 
engage in substantial gainful activity as discussed in paragraph (e) of 
this section.

    Example 1: The annuitant has a back impairment and has had a 
laminectomy to relieve the nerve root impingement and weakness in his 
left leg. At the time of the Board's prior decision, basic work 
activities were affected because he was able to stand less than 6 hours, 
and sit no more than \1/2\ hour at a time. The annuitant had a 
successful fusion operation on his back about 1 year before the Board's 
review of his entitlement. At the time of the Board's review, the 
weakness in his leg has decreased. The annuitant's functional capacity 
to perform basic work activities now is unimpaired because he now has no 
limitation on his ability to sit, walk, or stand. Medical improvement 
has occurred because there has been a decrease in the severity of his 
impairment as demonstrated by the decreased weakness in his leg. This 
medical improvement is related to his ability to work because there has 
also been an increase in his functional capacity to perform basic work 
activities (or residual functional capacity) as shown by the absence of 
limitation on his ability to sit, walk, or stand. Whether or not his 
disability is found to have ended, however, will depend on the Board's 
determination as to whether he can currently engage in substantial 
gainful activity.
    Example 2: The annuitant was injured in an automobile accident 
receiving a compound fracture to his right femur and a fractured pelvis. 
When he applied for disability annuity 10 months after the accident his 
doctor reported that neither fracture had yet achieved solid union based 
on his clinical examination. X-rays supported this finding. The 
annuitant's doctor estimated that solid union and a subsequent return to 
full weight bearing would not occur for at least 3 more months. At the 
time of the Board's review 6 months later, solid union had occurred and 
the annuitant had been returned to full weight-bearing for over a month. 
His doctor reported this and the fact that his prior fractures no longer 
placed any limitation on his ability to walk, stand, and lift, and, that 
in fact, he could return to full-time work if he so desired.
    Medical improvement has occurred because there has been a decrease 
in the severity of the annuitant's impairments as shown by x-ray and 
clinical evidence of solid union and his return to full weight-bearing. 
This medical improvement is related to his ability to work because he no 
longer meets the same listed impairment in appendix 1 of this part (see 
Sec. 220.178(c)(1)). Whether or not the annuitant's disability is found 
to have ended will depend on the Board's determination as to whether he 
can currently engage in substantial gainful activity.

    (d) Functional capacity to do basic work activities. (1) Under the 
law, disability is defined, in part, as the inability to do any regular 
employment by reason of a physical or mental impairment(s). ``Regular 
employment'' is defined in this part as ``substantial gainful 
activity.'' In determining whether the annuitant is disabled under the 
law, the Board will measure, therefore, how and to what extent the 
annuitant's impairment(s) has affected his or her ability to do work. 
The Board does this by looking at how the annuitant's functional 
capacity for doing basic work activities has been affected. Basic work 
activities means the abilities and aptitudes necessary to do most jobs. 
Included are exertional abilities such as walking, standing, pushing, 
pulling, reaching and carrying, and nonexertional abilities and 
aptitudes such as seeing, hearing, speaking, remembering, using 
judgment, dealing with changes in a work setting and dealing with both 
supervisors and fellow workers. The annuitant who has no impairment(s) 
would be able to do all basic work activities at normal levels; he or

[[Page 243]]

she would have an unlimited functional capacity to do basic work 
activities. Depending on its nature and severity, an impairment(s) will 
result in some limitation to the functional capacity to do one or more 
of these basic work activities. Diabetes, for example, can result in 
circulatory problems which could limit the length of time the annuitant 
could stand or walk and can result in damage to his or her eyes as well, 
so that the annuitant also had limited vision. What the annuitant can 
still do, despite his or her impairment(s), is called his or her 
residual functional capacity. How the residual functional capacity is 
assessed is discussed in more detail in Sec. 220.120. Unless an 
impairment is so severe that it is deemed to prevent the annuitant from 
doing substantial gainful activity (i.e., the impairment(s) meets or 
equals the severity of a listed impairment in appendix 1 of this part), 
it is this residual functional capacity that is used to determine 
whether the annuitant can still do his or her past work or, in 
conjunction with his or her age, education and work experience, do any 
other work.
    (2) A decrease in the severity of an impairment as measured by 
changes (improvement) in symptoms, signs or laboratory findings can, if 
great enough, result in an increase in the functional capacity to do 
work activities. Vascular surgery (e.g., femoropopliteal bypass) may 
sometimes reduce the severity of the circulatory complications of 
diabetes so that better circulation results and the annuitant can stand 
or walk for longer periods. When new evidence showing a change in 
medical findings establishes that both medical improvement has occurred 
and the annuitant's functional capacity to perform basic work 
activities, or residual functional capacity, has increased, the Board 
will find that medical improvement which is related to the annuitant's 
ability to do work has occurred. A residual functional capacity 
assessment is also used to determine whether an annuitant can engage in 
substantial gainful activity and, thus, whether he or she continues to 
be disabled (see paragraph (e) of this section).
    (3) Many impairment-related factors must be considered in assessing 
an annuitant's functional capacity for basic work activities. Age is one 
key factor. Medical literature shows that there is a gradual decrease in 
organ function with age; that major losses and deficits become 
irreversible over time and that maximum exercise performance diminishes 
with age. Other changes related to sustained periods of inactivity and 
the aging process include muscle atrophy, degenerative joint changes, 
decrease in range of motion, and changes in the cardiac and respiratory 
systems which limit the exertional range.
    (4) Studies have also shown that the longer the annuitant is away 
from the workplace and is inactive, the more difficult it becomes to 
return to ongoing gainful employment. In addition, a gradual change 
occurs in most jobs so that after about 15 years, it is no longer 
realistic to expect that skills and abilities acquired in these jobs 
will continue to apply to the current workplace. Thus, if the annuitant 
is age 50 or over and had been receiving a disability annuity for a 
considerable period of time, the Board will consider this factor along 
with his or her age in assessing the residual functional capacity. This 
will ensure that the disadvantages resulting from inactivity and the 
aging process during a longer period of disability will be considered. 
In some instances where available evidence does not resolve what the 
annuitant can or cannot do on a sustained basis, the Board may provide 
special work evaluations or other appropriate testing.
    (e) Ability to engage in substantial gainful activity. In most 
instances, the Board must show that the annuitant is able to engage in 
substantial gainful activity before stopping his or her annuity. When 
doing this, the Board will consider all of the annuitant's current 
impairments not just that impairment(s) present at the time of the most 
recent favorable determination. If the Board cannot determine that the 
annuitant is still disabled based on medical considerations alone (as 
discussed in Secs. 220.110 through 220.115), it will use the new 
symptoms, signs and laboratory findings to make an objective assessment 
of functional capacity to do

[[Page 244]]

basic work activities (or residual functional capacity) and will 
consider vocational factors. See Secs. 220.120 through 220.134.
    (f) Evidence and basis for the Board's decision. The Board's 
decisions under this section will be made on a neutral basis without any 
initial inference as to the presence or absence of disability being 
drawn from the fact that the annuitant had previously been determined to 
be disabled. The Board will consider all of the evidence the annuitant 
submits. An annuitant must give the Board reports from his or her 
physician, psychologist, or others who have treated or evaluated him or 
her, as well as any other evidence that will help the board determine if 
he or she is still disabled (see Sec. 220.45). The annuitant must have a 
good reason for not giving the Board this information or the Board may 
find that his or her disability has ended (see Sec. 220.178(b)(2)). If 
the Board asks the annuitant, he or she must contact his or her medical 
sources to help the Board get the medical reports. The Board will make 
every reasonable effort to help the annuitant in getting medical reports 
when he or she gives the Board permission to request them from his or 
her physician, psychologist, or other medical sources, Every reasonable 
effort means that the Board will make an initial request and, after 20 
days, one follow-up request to the annuitant's medical source to obtain 
the medical evidence necessary to make a determination before the Board 
evaluates medical evidence obtained from another source on a 
consultative basis. The medical source will have 10 days from the 
follow-up to reply (unless experience indicates that a longer period is 
advisable in a particular case). In some instances the Board may order a 
consultative examination while awaiting receipt of medical source 
evidence. Before deciding that an annuitant's disability has ended, the 
Board will develop a complete medical history covering at least the 
preceding 12 months (See Sec. 220.45(b)). A consultative examination may 
be purchased when the Board needs additional evidence to determine 
whether or not an annuitant's disability continues. As a result, the 
Board may ask the annuitant, upon the Board request and reasonable 
notice, to undergo consultative examinations and tests to help the Board 
determine whether the annuitant is still disabled (see Sec. 220.50). The 
Board will decide whether or not to purchase a consultative examination 
in accordance with the standards in Secs. 220.53 through 220.54.
    (g) Point of comparison. For purposes of determining whether medical 
improvement has occurred, the Board will compare the current medical 
severity of that impairment(s), which was present at the time of the 
most recent favorable medical decision that the annuitant was disabled 
or continued to be disabled, to the medical severity of that 
impairment(s) at that time. If medical improvement has occurred, the 
Board will compare the annuitant's current functional capacity to do 
basic work activities (i.e., his or her residual functional capacity) 
based on this previously existing impairment(s) with the annuitant's 
prior residual functional capacity in order to determine whether the 
medical improvement is related to his or her ability to do work. The 
most recent favorable medical decision is the latest decision involving 
a consideration of the medical evidence and the issue of whether the 
annuitant was disabled or continued to be disabled which became final.



Sec. 220.178  Determining medical improvement and its relationship to the annuitant's ability to do work.

    (a) General. Paragraphs (a), (b), and (c) of Sec. 220.177 discuss 
what is meant by medical improvement, medical improvement not related to 
the ability to work and medical improvement that is related to the 
ability to work. How the Board will arrive at the decision that medical 
improvement has occurred and its relationship to the ability to do work, 
is discussed in paragraphs (b) and (c) of this section.
    (b) Determining if medical improvement is related to ability to 
work. If there is a decrease in medical severity as shown by the 
symptoms, signs and laboratory findings, the Board then must determine 
if it is related to the annuitant's ability to do work. In 
Sec. 220.177(d) the relationship between medical severity and limitation 
on functional capacity to do basic work activities (or residual

[[Page 245]]

functional capacity) and how changes in medical severity can affect the 
annuitant's residual functional capacity is explained. In determining 
whether medical improvement that has occurred is related to the 
annuitant's ability to do work, the Board will assess the annuitant's 
residual functional capacity (in accordance with Sec. 220.177(d)) based 
on the current severity of the impairment(s) which was present at that 
annuitant's last favorable medical decision. The annuitant's new 
residual functional capacity will then be compared to the annuitant's 
residual functional capcity at the time of the Board's most recent 
favorable medical decision. Unless an increase in the current residual 
functional capacity is based on changes in the signs, symptoms, or 
laboratory findings, any medical improvement that has occurred will not 
be considered to be related to the annuitant's ability to do work.
    (c) Additional factors and considerations. The Board will also apply 
the following in its determinations of medical improvement and its 
relationship to the annuitant's ability to do work:
    (1) Previous impairment met or equaled listings. If the Board's most 
recent favorable decision was based on the fact that the annuitant's 
impairment(s) at the time met or equaled the severity contemplated by 
the Listing of Impairments in appendix 1 of this part, an assessment of 
his or her residual functional capacity would not have been made. If 
medical improvement has occurred and the severity of the prior 
impairment(s) no longer meets or equals the same listing, the Board will 
find that the medical improvement was related to the annuitant's ability 
to work. Appendix 1 of this part describes impairments which, if severe 
enough, affect the annuitant's ability to work. If the Listing level of 
severity is met or equaled, the annuitant is deemed, in the absence of 
evidence to the contrary, to be unable to engage in substantial gainful 
activity. If there has been medical improvement to the degree that the 
requirement of the listing is no longer met or equaled, then the medical 
improvement is related to the annuitant's ability to work. The Board 
must, of course, also establish that the annuitant can currenlty engage 
in gainful activity before finding that his or her disability has ended.
    (2) Prior residual functional capacity assessment made. The residual 
functional capacity assessment used in making the most recent favorable 
medical decision will be compared to the residual functional capacity 
assessment based on current evidence in order to determine if an 
annuitant's functional capacity for basic work activities has increased. 
There will be no attempt made to reassess the prior residual functional 
capacity.
    (3) Prior residual functional capacity assessment should have been 
made, but was not. If the most recent favorable medical decision should 
have contained an assessment of the annuitant's residual functional 
capacity (i.e., his or her impairment(s) did not meet or equal the level 
of severity contemplated by the Listing of Impairments in appendix 1 of 
this part) but does not, either because this assessment is missing from 
the annuitant's file or because it was not done, the Board will 
reconstruct the residual functional capacity. This reconstructed 
residual functional capacity will accurately and objectively assess the 
annuitant's functional capacity to do basic work activities. The Board 
will assign the maximum functional capacity consistent with an 
allowance.

    Example: The annuitant was previously found to be disabled on the 
basis that while his impairment did not meet or equal a listing, it did 
prevent him from doing his past or any other work. The prior adjudicator 
did not, however, include a residual functional capacity assessment in 
the rationale of that decision and a review of the prior evidence does 
not show that such an assessment was ever made. If a decrease in medical 
severity, i.e., medical improvement, has occurred, the residual 
functional capacity based on the current level of severity of the 
annuitant's impairment will have to be compared with his residual 
functional capacity based on its prior severity in order to determine if 
the medical improvement is related to his ability to do work. In order 
to make this comparison, the Board will review the prior evidence and 
make an objective assessment of the annuitant's residual functional 
capacity at the time of its most recent favorable medical determination, 
based on the symptoms, signs and laboratory findings as they then 
existed.


[[Page 246]]


    (4) Impairment subject to temporary remission. In some cases the 
evidence shows that the annuitant's impairment(s) are subject to 
temporary remission. In assessing whether medical improvement has 
occurred in annuitants with this type of impairment(s), the Board will 
be careful to consider the longitudinal history of the impairment(s), 
including the occurrence of prior remission, and prospects for future 
worsenings. Improvement in such impairment(s) that is only temporary, 
i.e., less than 1 year, will not warrant a finding of medical 
improvement.
    (5) Prior file cannot be located. If the prior file cannot be 
located, the Board will first determine whether the annuitant is able to 
now engage in substantial gainful activity based on all of his or her 
current impairments. (In this way, the Board will be able to determine 
that his or her disability continues at the earliest point without 
addressing the often lengthy process of reconstructing prior evidence.) 
If the annuitant cannot engage in substantial gainful activity 
currently, his or her disability will continue unless one of the second 
group of exceptions applies (see Sec. 220.179(b)).



Sec. 220.179  Exceptions to medical improvement.

    (a) First group of exceptions to medical improvement. The law 
provides for certain limited situations when the annuitant's disability 
can be found to have ended even though medical improvement has not 
occurred, if he or she can engage in substantial gainful activity. These 
exceptions to medical improvement are intended to provide a way of 
finding that the annuitant is no longer disabled in those limited 
situations where, even though there has been no decrease in severity of 
the impairment(s), evidence shows that the annuitant should no longer be 
considered disabled or never should have been considered disabled. If 
one of these exceptions applies, the Board must also show that, taking 
all of the annuitant's current impairment(s) into account, not just 
those that existed at the time of the Board's most recent favorable 
medical decision, the annuitant is now able to engage in substantial 
gainful activity before his or her disability can be found to have 
ended. As part of the review process, the annuitant will be asked about 
any medical or vocational therapy that he or she has received or is 
receiving. Those answers and the evidence gathered as a result as well 
as all other evidence, will serve as the basis for the finding that an 
exception applies.
    (1) Substantial evidence shows that the annuitant is the beneficiary 
of advances in medical or vocational therapy or technology (related to 
his or her ability to work). Advances in medical or vocational therapy 
or technology are improvements in treatment or rehabilitative methods 
which have increased the annuitant's ability to do basic work 
activities. The Board will apply this exception when substantial 
evidence shows that the annuitant has been the beneficiary of services 
which reflect these advances and they have favorably affected the 
severity of his or her impairment(s) or ability to do basic work 
activities. This decision will be based on new medical evidence and a 
new residual functional capacity assessment. In many instances, an 
advanced medical therapy or technology will result in a decrease in 
severity as shown by symptoms, signs and laboratory findings which will 
meet the definition of medical improvement. This exception will, 
therefore, see very limited application.
    (2) Substantial evidence shows that the annuitant has undergone 
vocational therapy (related to his or her ability to work). Vocational 
therapy (related to the annuitant's ability to work) may include, but is 
not limited to, additional education, training, or work experience that 
improves his or her ability to meet the vocational requirements of more 
jobs. This decision will be based on substantial evidence which includes 
new medical evidence and a new residual functional capacity assessment. 
If, at the time of the Board's review the annuitant has not completed 
vocational therapy which could affect the continuance of his or her 
disability, the Board will review such annuitant's claim upon completion 
of the therapy.

    Example 1: The annuitant was found to be disabled because the 
limitations imposed on him by his impairment(s) allowed him to only do 
work that was at a sedentary level of

[[Page 247]]

exertion. The annuitant's prior work experience was work that required a 
medium level of exertion with no acquired skills that could be 
transferred to sedentary work. His age, education, and past work 
experience at the time did not qualify him for work that was below this 
medium level of exertion. The annuitant enrolled in and completed a 
specialized training course which qualifies him for a job in data 
processing as a computer programmer in the period since he was awarded a 
disability annuity. On review of his claim, current evidence shows that 
there is no medical improvement and that he can still do only sedentary 
work. As the work of a computer programmer is sedentary in nature, he is 
now able to engage in substantial gainful activity when his new skills 
are considered.
    Example 2: The annuitant was previously entitled to a disability 
annuity because the medical evidence and assessment of his residual 
functional capacity showed he could only do light work. His prior work 
was considered to be of a heavy exertional level with no acquired skills 
that could be transferred to light work. His age, education, and past 
work experience did not qualify him for work that was below the heavy 
level of exertion. The current evidence and residual functional capacity 
show there has been no medical improvement and that he can still do only 
light work. Since he was originally entitled to a disability annuity, 
his vocational rehabilitation agency enrolled him in and he successfully 
completed a trade school course so that he is now qualified to do small 
appliance repair. This work is light in nature, so when his new skills 
are considered, he is now able to engage in substantial gainful activity 
even though there has been no change in his residual functional 
capacity.

    (3) Substantial evidence shows that based on new or improved 
diagnostic or evaluative techniques the annuitant's impairment(s) is not 
as disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic or evaluative techniques have given, and will continue 
to give, rise to improved methods for measuring and documenting the 
effect of various impairments on the ability to do work. Where, by such 
new or improved methods, substantial evidence shows that the annuitant's 
impairment(s) is not as severe as was determined at the time of the 
Board's most recent favorable medical decision, such evidence may serve 
as a basis for finding that the annuitant can engage in substantial 
gainful activity and is no longer disabled. In order to be used under 
this exception, however, the new or improved techniques must have become 
generally available after the date of the Board's most recent favorable 
medical decision.
    (i) How the Board will determine which methods are new or improved 
techniques and when they become generally available. New or improved 
diagnostic techniques or evalutions will come to the Board's attention 
by several methods. In reviewing cases, the Board often becomes aware of 
new techniques when their results are presented as evidence. Such 
techniques and evalutions are also discussed and acknowledged in medical 
literature by medical professional groups and other governmental 
entities. Through these sources, the Board develops listings of new 
techniques and when they become generally available.
    (ii) How the annuitant will know which methods are new or improved 
techniques and when they become generally available. The Board will let 
annuitants know which methods it considers to be new or improved 
techniques and when they become available. Some of the future changes in 
the Listing of Impairments in appendix 1 of this part will be based on 
new or improved diagnostic or evaluative techniques. Such listings 
changes will clearly state this fact as they are published as Notices of 
Proposed Rulemaking and the new or improved techniques will be 
considered generally available as of the date of the final publication 
of that particular listing in the Federal Register.

    Example: The electrocardiographic exercise test has replaced the 
Master's 2-step test as a measurement of heart function since the time 
of the annuitant's last favorable medical decision. Current evidence 
shows that the annuitant's impairment, which was previously evaluated 
based on the Master's 2-step test, is not now as disabling as was 
previously thought. If, taking all his current impairments into account, 
the annuitant is now able to engage in substantial gainful activity, 
this exception would be used to find that he is no longer disabled even 
if medical improvement has not occurred.

    (4) Substantial evidence demonstrates that any prior disability 
decision was in error. The Board will apply the exception to medical 
improvement based on error if substantial evidence (which may be 
evidence on the record at the

[[Page 248]]

time any prior determination of the entitlement to an annuity based on 
disability was made, or newly obtained evidence which relates to that 
determination) demonstrates that a prior determination was in error. A 
prior determination will be found in error only if:
    (i) Substantial evidence shows on its face that the decision in 
question should not have been made (e.g., the evidence in file such as 
pulmonary function study values was misread or an adjudicative standard 
such as a listing in appendix 1 of this part or a medical/vocational 
rule in appendix 2 of this part was misapplied).

    Example 1: The annuitant was granted a disability annuity when it 
was determined that his epilepsy met Listing 11.02. This listing calls 
for a finding of major motor seizures more frequently than once a month 
as documented by EEG evidence and by a detailed description of a typical 
seizure pattern. As history of either diurnal episodes or nocturnal 
episodes with residuals interfering with daily activities is also 
required. On review, it is found that a history of the frequency of his 
seizures showed that they occurred only once or twice a year. The prior 
decision would be found to be in error, and whether the annuitant was 
still considered to be disabled would be based on whether he could 
currently engage in substantial gainful activity.
    Example 2: The annuitant's prior award of a disability annuity was 
based on vocational rule 201.14 in appendix 2 of this part. This rule 
applies to a person age 50-54 who has at least a high school education, 
whose previous work was entirely at semiskilled level, and who can do 
only sedentary work. On review it is found that at the time of the prior 
determination the annuitant was actually only age 46 and vocational rule 
201.21 should have been used. This rule would have called for a denial 
of his claim and the prior decision is found to have been in error. 
Continuation of his disability would depend on a finding of his current 
inability to engage in substantial gainful activity.

    (ii) At the time of the prior evaluation, required and material 
evidence of the severity of the annuitant's impairment(s) was missing. 
That evidence becomes available upon review, and substantial evidence 
demonstrates that had such evidence been present at the time of the 
prior determination, disability would not have been found.

    Example: The annuitant was found disabled on the basis of chronic 
obstructive pulmonary disease. The severity of his impairment was 
documented primarily by pulmonary function testing results. The evidence 
showed that he could do only light work. Spirometric tracings of this 
testing, although required, were not obtained, however. On review, the 
original report is resubmitted by the consultative examining physician 
along with the corresponding spirometric tracings. A review of the 
tracings shows that the test was invalid. Current pulmonary function 
testing supported by spirometric tracings reveals that the annuitant's 
impairment does not limit his ability to perform basic work activities 
in any way. Error is found based on the fact that required material 
evidence, which was originally missing, now becomes available and shows 
that if it had been available at the time of the prior determination, 
disability would not have been found.

    (iii) Substantial evidence which is new evidence relating to the 
prior determination (of allowance or continuance) refutes the 
conclusions that were based upon the prior evidence (e.g., a tumor 
thought to be malignant was later shown to have actually been benign). 
Substantial evidence must show that had the new evidence (which relates 
to the prior determination) been considered at the time of the prior 
decision, the disability would not have been allowed or continued. A 
substitution of current judgment for that used in the prior favorable 
decision will not be the basis for applying this exception.

    Example: The annuitant was previously found entitled to a disability 
annuity on the basis of diabetes mellitus which the prior adjudicator 
believed was equivalent to the level of severity contemplated in the 
Listing of Impairments. The prior record shows that the annuitant has 
``brittle'' diabetes for which he was taking insulin. The annuitant's 
urine was 3+ for sugar, and he alleged occasional hypoglycemic attacks 
caused by exertion. His doctor felt the diabetes was never really 
controlled because he was not following his diet or taking his 
medication regularly. On review, symptoms, signs and laboratory findings 
are unchanged. The current adjudicator feels, however, that the 
annuitant's impairment clearly does not equal the severity contemplated 
by the listings. Error cannot be found because it would represent a 
substitution of current judgement for that of the prior adjudicator that 
the annuitant's impairment equaled a listing. The exception for error 
will not be applied retroactively under the conditions set out above

[[Page 249]]

unless the conditions for reopening the prior decision are met.

    (5) The annuitant is currently engaging in substantial gainful 
activity. If the annuitant is currently engaging in substantial gainful 
activity, before the Board determines whether he or she is no longer 
disabled because of his or her work activity, the Board will consider 
whether he or she is entitled to a trial work period as set out in 
Sec. 220.170. The Board will find that the annuitant's disability has 
ended in the month in which he or she demonstrated the ability to engage 
in substantial gainful activity (following completion of a trial work 
period, where it applies). This exception does not apply in determining 
whether the annuitant continues to have a disabling impairment(s) for 
purposes of deciding his or her eligibility for a reentitlement period.
    (b) Second group of exceptions to medical improvement. In addition 
to the first group of exceptions to medical improvement, the following 
exceptions may result in a determination that the annuitant is no longer 
disabled. In these situations the decision will be made without a 
determination that the annuitant has medically improved or can engage in 
substantial gainful activity.
    (1) A prior determination was fraudulently obtained. If the Board 
finds that any prior favorable determination was obtained by fraud, it 
may find that the annuitant is not disabled. In addition, the Board may 
reopen the claim.
    (2) Failure to cooperate with the Board. If there is a question 
about whether the annuitant continues to be disabled and the Board 
requests that he or she submit medical or other evidence or go for a 
physical or mental examination by a certain date, the Board will find 
that the annuitant's disability has ended if he or she fails (without 
good cause) to do what is requested. The month in which the annuitant's 
disability ends will be the first month in which he or she failed to do 
what was requested.
    (3) Inability of the Board to locate the annuitant. If there is 
question about whether the annuitant continues to be disabled and the 
Board is unable to find him or her to resolve the question, the Board 
will suspend annuity payments. If, after a suitable investigation, the 
Board is still unable to locate the annuitant, the Board will determine 
that the annuitant's disability has ended. The month such annuitant's 
disability ends will be the first month in which the question arose and 
the annuitant could not be found.
    (4) Failure of the annuitant to follow prescribed treatment which 
would be expected to restore the ability to engage in substantial 
gainful activity. If treatment has been prescribed for the annuitant 
which would be expected to restore his or her ability to work, he or she 
must follow that treatment in order to be paid a disability annuity. If 
the annuitant is not following that treatment and he or she does not 
have good cause for failing to follow the treatment, the Board will find 
that his or her disability has ended. The month such annuitant's 
disability ends will be the first month in which he or she failed to 
follow the prescribed treatment.



Sec. 220.180  Determining continuation or cessation of disability.

    Evaluation steps. To assure that disability reviews are carried out 
in a uniform manner, that decisions of continuing disability can be made 
in the most expeditious and administratively efficient way, and that any 
decisions to stop a disability annuity are made objectively, neutrally 
and are fully documented, the Board will follow specific steps in 
reviewing the question of whether an annuitant's disability continues. 
The Board's review may cease and the disability may be continued at any 
point if the Board determines that there is sufficient evidence to find 
that the annuitant is still unable to engage in substantial gainful 
activity. The steps are--
    (a) Is the annuitant engaging in substantial gainful activity? If he 
or she is (and any applicable trial work period has been completed), the 
Board will find disability to have ended (see Sec. 220.179(a)(5));
    (b) If the annuitant is not engaging in substantial gainful 
activity, does he or she have an impairment or combination of 
impairments which meets or equals the severity of an impairment listed 
in appendix 1 of this part? If the annuitant's impairment(s) does meet

[[Page 250]]

or equal the level of severity of an impairment listed in appendix 1 of 
this part, his or her disability will be found to continue;
    (c) If the annuitant's impairment(s) does not meet or equal the 
level of severity of an impairment listed in appendix 1 of this part, 
has there been medical improvement as defined in Sec. 220.177(a)? If 
there has been medical improvement as shown by a decrease in medical 
severity, see step (d). If there has been no decrease in medical 
severity, then there has been no medical improvement; (See step (e));
    (d) If there has been medical improvement, the Board must determine 
whether it is related to the annuitant's ability to do work in 
accordance with paragraphs (a) through (d) of Sec. 220.177, (i.e., 
whether or not there has been an increase in the residual functional 
capacity based on the impairment(s) that was present at the time of the 
most recent favorable medical determination). If medical improvement is 
not related to the annuitant's ability to do work, see step (e). If 
medical improvement is related to the annuitant's ability to do work, 
see step (f);
    (e) If the Board found at step (c) that there has been no medical 
improvement or if it found at step (d) that the medical improvement is 
not related to the annuitant's ability to work, the Board considers 
whether any of the exceptions in Sec. 220.178 apply. If none of them 
apply, disability will be found to continue. If one of the first group 
of exceptions to medical improvement applies, see step (f). If an 
exception from the second group of exceptions to medical improvement 
applies, disability will be found to have ended. The second group of 
exceptions to medical improvement may be considered at any point in this 
process;
    (f) If medical improvement is shown to be related to the annuitant's 
ability to do work or if one of the first group of exceptions to medical 
improvement applies, the Board will determine whether all of the 
annuitant's current impairments in combination are severe. This 
determination will consider all current impairments and the impact of 
the combination of those impairments on the ability to function. If the 
residual functional capacity assessment in step (d) above shows 
significant limitation of ability to do basic work activities, see step 
(g). When the evidence shows that all current impairments in combination 
do not significantly limit physical or mental abilities to do basic work 
activities, these impairments will not be considered severe in nature, 
and the annuitant will no longer be consider to be disabled;
    (g) If the annuitant's impairment(s) is severe, the Board will 
assess his or her current ability to engage in substantial gainful 
activity. That is, the Board will assess the annuitant's residual 
functional capacity based on all of his or her current impairments and 
consider whether he or she can still do work that was done in the past. 
If he or she can do such work, disability will be found to have ended; 
and
    (h) If the annuitant is not able to do work he or she has done in 
the past, the Board will consider one final step. Given the residual 
functional capacity assessment and considering the annuitant's age, 
education and past work experience, can he or she do other work? If the 
annuitant can do other work, disability will be found to have ended. If 
he or she cannot do other work, disability will be found to continue.



Sec. 220.181  The month in which the Board will find that the annuitant is no longer disabled.

    If the evidence shows that the annuitant is no longer disabled, the 
Board will find that his or her disability ended in the earliest of the 
following months--
    (a) The month the Board mails the annuitant a notice saying that the 
Board finds that he or she is no longer disabled based on evidence 
showing:
    (1) There has been medical improvement in the annuitant's 
impairments related to the ability to work and the annuitant has the 
capacity to engage in substantial gainful work under the rules set out 
in Secs. 220.177 and 220.178; or
    (2) There has been no medical improvement in the annuitant's 
impairments related to the ability to work but the annuitant has the 
capacity to engage in substantial gainful work and

[[Page 251]]

one of the exceptions to medical improvement set out in 
Sec. 220.179(a)(1), (2), (3) or (4) applies.
    (b) The month in which the annuitant demonstrated his or her ability 
to engage in substantial gainful activity (following completion of a 
trial work period);
    (c) The month in which the annuitant actually does substantical 
gainful activity where such annuitant is not entitled to a trial work 
period;
    (d) The month in which the annuitant returns to full-time work, with 
no significant medical restrictions and acknowledges that medical 
improvement has occurred, and the Board expected the annuitant's 
impairment(s) to improve;
    (e) The first month in which the annuitant failed without good cause 
to do what the Board asked, when the rule set out in paragraph (b)(2) of 
Sec. 220.179 applies;
    (f) The first month in which the question of continuing disability 
arose and the Board could not locate the annuitant after a suitable 
investigation (see Sec. 220.179(b)(3));
    (g) The first month in which the annuitant failed without good cause 
to follow prescribed treatment, when the rule set out in paragraph 
(b)(4) of Sec. 220.179 applies; or
    (h) The first month the annuitant was told by his or her physician 
that he or she could return to work provided there is no substantial 
conflict between the physician's and the annuitant's statements 
regarding that annuitant's awareness of his or her capacity for work and 
the earlier date is supported by the medical evidence.
    (i) The month the evidence shows that the annuitant is not longer 
disabled under the rules set out in Secs. 220.177 through 220.180, and 
he or she was disabled only for a specified period of time in the past 
as discussed in Sec. 220.21 or Sec. 220.105;



Sec. 220.182  Before a disability annuity is stopped.

    Before the Board stops a disability annuity, it will give the 
annuitant a chance to explain why it should not do so.



Sec. 220.183  Notice that the annuitant is not disabled.

    (a) General. If the Board determines that the annuitant does not 
meet the disability requirements of the law, the disability annuity will 
generally stop. Except in the circumstance described in paragraph (d) of 
this section, the Board will give the annuitant advance written notice 
when the Board has determined that he or she is not now disabled.
    (b) What the advance written notice will tell the annuitant. The 
advance written notice will provide--
    (1) A summary of the information the Board has and an explanation of 
why the Board believes the annuitant is no longer disabled. If it is 
because of medical reasons, the notice will tell the annuitant what the 
medical information in his or her file shows. If it is because of the 
annuitant's work activity, the notice will tell the annuitant what 
information the Board has about the work he or she is doing or has done, 
and why this work shows that he or she is not disabled. If it is because 
of the annuitant's failure to give the Board information the Board needs 
or failure to do what the Board asks, the notice will tell the annuitant 
what information the Board needs and why, or what the annuitant has to 
do and why;
    (2) The date the disability annuity will stop;
    (3) An opportunity for the annuitant to submit evidence within a 
specified period to support continuance of disability before the 
decision becomes final; and
    (4) An explanation of the annuitant's rights to reconsideration and 
appeal after the decision becomes final.
    (c) What the annuitant should do if he or she receives an advance 
written notice. If the annuitant agrees with the advance written notice, 
he or she does not need to take any action. If the annuitant desires 
further information or disagrees with what the Board has told him or 
her, the annuitant should immediately write or visit a Board office. If 
the annuitant believes he or she is now disabled, the annuitant should 
tell the Board why. The annuitant may give the Board any additional or 
new information, including reports from

[[Page 252]]

doctors, hospitals, railroad or non-railroad employers, or others that 
he or she believes the Board should have. The annuitant should send 
these as soon as possible to a Board office.
    (d) When the Board will not give the annuitant advance written 
notice. The Board will not give the annuitant advance written notice 
when the Board determines that he or she is not now disabled if the 
Board recently told the annuitant that--
    (1) The information the Board has shows that he or she is not 
disabled;
    (2) The Board was gathering more information; and
    (3) The disability annuity would stop.



Sec. 220.184  If the annuitant becomes disabled by another impairment(s).

    If a new severe impairment(s) begins in or before the month in which 
the last impairment(s) ends, the Board will find that disability is 
continuing. The impairment(s) need not be expected to last 12 months or 
to result in death, but it must be severe enough to keep the annuitant 
from doing substantial gainful activity, or severe enough so that he or 
she is still disabled.



Sec. 220.185  The Board may conduct a review to find out whether the annuitant continues to be disabled.

    After the Board finds that the annuitant is disabled, the Board must 
evaluate the annuitant's impairment(s) from time to time to determine if 
the annuitant is still eligible for disability cash benefits. The Board 
calls this evaluation a continuing disability review. The Board may 
begin a continuing disability review for any number of reasons including 
the annuitant's failure to follow the provisions of the Railroad 
Retirement Act or these regulations. When the Board begins such a 
review, the Board will notify the annuitant that the Board is reviewing 
the annuitant's eligibility for disability benefits, why the Board is 
reviewing the annuitant's eligibility, that in medical reviews the 
medical improvement review standard will apply, that the Board's review 
could result in the termination of the annuitant's benefits, and that 
the annuitant has the right to submit medical and other evidence for the 
Board's consideration during the continuing disability review. In doing 
a medical review the Board will develop a complete medical history of at 
least the preceding 12 months in any case in which a determination is 
made that the annuitant is no longer under a disability. If this review 
shows that the Board should stop payment of cash benefits, the Board 
will notify the annuitant in writing and give the annuitant an 
opportunity to appeal. In Sec. 220.186 the Board describes those events 
that may prompt it to review whether the annuitant continues to be 
disabled.



Sec. 220.186  When and how often the Board will conduct a continuing disability review.

    (a) General. The Board conducts continuing disability reviews to 
determine whether or not the annuitant continues to meet the disability 
requirements of the law. Payment of cash benefits or a period of 
disability ends if the medical or other evidence shows that the 
annuitant is not disabled under the standards set out in section 2 of 
the Railroad Retirement Act or section 223(f) of the Social Security 
Act.
    (b) When the Board will conduct a continuing disability review. A 
continuing disability review will be started if--
    (1) The annuitant has been scheduled for a medical improvement 
expected diary review;
    (2) The annuitant has been scheduled for a periodic review in 
accordance with the provisions of paragraph (d) of this section;
    (3) The Board needs a current medical or other report to see if the 
annuitant's disability continues. (This could happen when, for example, 
an advance in medical technology, such as improved treatment for 
Alzheimer's disease or a change in vocational therapy or technology 
raises a disability issue.);
    (4) The annuitant returns to work and successfully completes a 
period of trial work;
    (5) Substantial earnings are reported to the annuitant's wage 
record;
    (6) The annuitant tells the Board that he or she has recovered from 
his or her disability or that he or she has returned to work;

[[Page 253]]

    (7) A State Vocational Rehabilitation Agency tells the Board that--
    (i) The services have been completed; or
    (ii) The annuitant is now working; or
    (iii) The annuitant is able to work;
    (8) Someone in a position to know of the annuitant's physical or 
mental condition tells the Board that the annuitant is not disabled, 
that the annuitant in not following prescribed treatment, that the 
annuitant has returned to work, or that the annuitant is failing to 
follow the provisions of the Social Security Act, the Railroad 
Retirement Act, or these regulations, and it appears that the report 
could be substantially correct; or
    (9) Evidence the Board receives raises a question as to whether the 
annuitant's disability continues.
    (c) Definitions. As used in this section--
    Medical improvement expected diary-- refers to a case which is 
scheduled for review at a later date because the individual's 
impairment(s) is expected to improve. Generally, the diary period is set 
for not less than 6 months or for not more than 18 months. Examples of 
cases likely to be scheduled for a medical improvement excepted diary 
are fractures and cases in which corrective surgery is planned and 
recovery can be anticipated. The term ``medical improvement expected 
diary'' also includes a case which is scheduled for a review at a later 
date because the individual is undergoing vocational therapy, training 
or an educational program which may improve his or her ability to work 
so that the disability requirement of the law is no longer met. 
Generally, the diary period will be the length of the training, therapy, 
or program of education.
    Permanent impairment medical improvement not expected--refers to a 
case in which any medical improvement in the person's impairment(s) is 
not expected. This means an extremely severe condition determined on the 
basis of our experience in administering the disability program to be at 
least static, but more likely to be progressively disabling either by 
itself or by reason of impairment complications, and unlikely to improve 
so as to permit the individual to engage in substantial gainful 
activity. The interaction of the individual's age, impairment 
consequences and lack of recent attachment to the labor market may also 
be considered in determining whether an impairment is permanent. 
Improvement which is considered temporary under Sec. 220.178(c)(4), will 
not be considered in deciding if an impairment is permanent. Examples of 
permanent impairments are as follows and are not intended to be all 
inclusive:
    (1) Parkinsonian Syndrome which has reached the level of severity 
necessary to meet the Listing in appendix 1.
    (2) Amyotrophic Lateral Sclerosis which has reached the level of 
severity necessary to meet the Listing in appendix 1.
    (3) Diffuse pulmonary fibrosis in an individual age 55 or over which 
has reached the level of severity necessary to meet the Listing in 
appendix 1.
    (4) Amputation of leg at hip.
    Nonpermanent impairment refers to a case in which any medical 
improvement in the person's impairment(s) is possible. This means an 
impairment for which improvement cannot be predicted based on current 
experience and the facts of the particular case but which is not at the 
level of severity of an impairment that is considered permanent. 
Examples of nonpermanent impairments are: regional enteritis, 
hyperthyroidism, and chronic ulcerative colitis.
    (d) Frequency of review. If an annuitant's impairment is expected to 
improve, generally the Board will review the annuitant's continuing 
eligibility for disability benefits at intervals from 6 months to 18 
months following the Board's most recent decision. The Board's notice to 
the annuitant about the review of the annuitant's case will tell the 
annuitant more precisely when the review will be conducted. If the 
annuitant's disability is not considered permanent but is such that any 
medical improvement in the annuitant's impairment(s) cannot be 
accurately predicted, the Board will review the annuitant's continuing 
eligibility for disability benefits at least once every 3 years. If no 
medical improvement is expected in the annuitant's impairment(s), the 
Board will not routinely

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review the annuitant's continuing eligibility. Regardless of the 
annuitant's classification, the Board will conduct an immediate 
continuing disability review if a question of continuing disability is 
raised pursuant to paragraph (b) of this section.
    (e) Change in classification of impairment. If the evidence 
developed during a continuing disability review demonstrates that the 
annuitant's impairment has improved, is expected to improve, or has 
worsened since the last review, the Board may reclassify the annuitant's 
impairment to reflect this change in severity. A change in the 
classification of the annuitant's impairment will change the frequency 
with which the Board will review the case. The Board may also reclassify 
certain impairments because of improved tests, treatment, and other 
technical advances concerning those impairments.
    (f) Review after administrative appeal. If the annuitant was found 
eligible to receive or to continue to receive disability benefits on the 
basis of a decision by a hearings officer, the three-member Board or a 
Federal court, the agency will not conduct a continuing disability 
review earlier than 3 years after that decision unless the annuitant's 
case should be scheduled for a medical improvement expected or 
vocational reexamination diary review or a question of continuing 
disability is raised pursuant to paragraph (b) of this section.
    (g) Waiver of timeframes. All cases involving a nonpermanent 
impairment will be reviewed by the Board at least once every 3 years 
unless the Board determines that the requirements should be waived to 
ensure that only the appropriate number of cases are reviewed. The 
appropriate number of cases to be reviewed is to be based on such 
considerations as the backlog of pending reviews, the projected number 
of new applications, and projected staffing levels. Therefore, an 
annuitant's continuing disability review may be delayed longer than 3 
years following the Board's original decision or other review under 
certain circumstances. Such a delay would be based on the Board's need 
to ensure that backlogs, and new disability claims workloads are 
accomplished within available medical and other resources and that such 
reviews are done carefully and accurately.

[56 FR 12980, Mar. 28, 1991, as amended at 65 FR 20372, Apr. 17, 2000]



Sec. 220.187  If the annuitant's medical recovery was expected and the annuitant returned to work.

    If the annuitant's impairment was expected to improve and the 
annuitant returned to full-time work with no significant medical 
limitations and acknowledges that medical improvement has occurred, the 
Board may find that the annuitant's disability ended in the month he or 
she returned to work. Unless there is evidence showing that the 
annuitant's disability has not ended, the Board will use the medical and 
other evidence already in the annuitant's file and the fact that he or 
she has returned to full-time work without significant limitations to 
determine that the annuitant is no longer disabled. (If the annuitant's 
impairment is not expected to improve, the Board will not ordinarily 
review his or her claim until the end of the trial work period, as 
described in Sec. 220.170.)

    Example: Evidence obtained during the processing of the annuitant's 
claim showed that the annuitant had an impairment that was expected to 
improve about 18 months after the annuitant's disability began. The 
Board, therefore, told the annuitant that his or her claim would be 
reviewed again at that time. However, before the time arrived for the 
annuitant's scheduled medical reexamination, the annuitant told the 
Board that he or she had returned to work and the annuitant's impairment 
had improved. The Board investigated immediately and found that, in the 
16th month after the annuitant's began, the annuitant returned to full-
time work without any significant medical restrictions. Therefore, the 
Board would find that the annuitant's disability ended in the first 
month the annuitant returned to full-time work.

             Appendix 1 to Part 220--Listing of Impairments

    In the Listing of Impairments, the listings under each separate body 
system in both Part A and Part B will be effective for periods ranging 
from 4 to 8 years unless extended or revised and promulgated again. 
Specifically, the body system listings in the Listing of Impairments 
will be subject to the following termination dates:

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    Musculoskeletal system (1.00) within 5 years. Consequently, the 
listings in this body system will no longer be effective on June 6, 
1992.
    Respiratory system (3.00) within 6 years. Consequently, the listings 
in this body system will no longer be effective on December 6, 1991.
    The cardiovascular system (4.00) will no longer be effective on June 
6, 1991.
    The listings under the other body systems in Part A and Part B will 
expire in 8 years. Consequently, the listing in these body systems will 
no longer be effective on December 6, 1993. The mental disorders 
listings in Part A will no longer be effective on August 28, 1991, 
unless extended by the Board or revised and promulgated again.

                                 Part A

    Criteria applicable to individuals age 18 and over and to children 
under age 18 where criteria are appropriate.
Sec.
1.00 Musculoskeletal System.
2.00 Special Senses and Speech.
3.00 Respiratory System.
4.00 Cardiovascular System.
5.00 Digestive System.
6.00 Genito-Urinary System.
7.00 Hemic and Lymphatic System.
8.00 Skin.
9.00 Endocrine System.
10.00 Multiple Body Systems.
11.00 Neurological.
12.00 Mental Disorders.
13.00 Neoplastic Diseases, Malignant.

                       1.00 Musculoskeletal System

    A. Loss of function may be due to amputation or deformity. Pain may 
be an important factor in causing functional loss, but it must be 
associated with relevant abnormal signs or laboratory findings. 
Evaluations of musculoskeletal impairments should be supported where 
applicable by detailed descriptions of the joints, including ranges of 
motion, condition of the musculature, sensory or reflex changes, 
circulatory deficits, and X-ray abnormalities.
    B. Disorders of the spine, associated with vertebrogenic disorders 
as in 1.05C, result in impairment because of distortion of the bony and 
ligamentous architecture of the spine or impingement of a herniated 
nucleus pulposus or bulging annulus on a nerve root. Impairment caused 
by such abnormalities usually improves with time or responds to 
treatment. Appropriate abnormal physical findings must be shown to 
persist on repeated examinations despite therapy for a reasonable 
presumption to be made that severe impairment will last for a continuous 
period of 12 months. This may occur in cases with unsuccessful prior 
surgical treatment.
    Evaluation of the impairment caused by disorders of the spine 
requires that a clinical diagnosis of the entity to be evaluated first 
must be established on the basis of adequate history, physical 
examination, and roentgenograms. The specific findings stated in 1.05C 
represent the level required for that impairment; these findings, by 
themselves, are not intended to represent the basis for establishing the 
clinical diagnosis. Furthermore, while neurological examination findings 
are required, they are not to be interpreted as a basis for evaluating 
the magnitude of any neurological impairment. Neurological impairments 
are to be evaluated under 11.00-11.19.
    The history must include a detailed description of the character, 
location, and radiation of pain; mechanical factors which incite and 
relieve pain; prescribed treatment, including type, dose, and frequency 
of analgesic; and typical daily activities. Care must be taken to 
ascertain that the reported examination findings are consistent with the 
individual's daily activities.
    There must be a detailed description of the orthopedic and 
neurologic examination findings. The findings should include a 
description of gait, limitation of movement of the spine given 
quantitatively in degrees from the vertical position, motor and sensory 
abnormalities, muscle spasm, and deep tendon reflexes. Observations of 
the individual during the examination should be reported; e.g., how he 
or she gets on and off the examining table. Inability to walk on heels 
or toes, to squat, or to arise from a squatting position, where 
appropriate, may be considered evidence of significant motor loss. 
However, a report of atrophy is not acceptable as evidence of 
significant motor loss without circumferential measurements of both 
thighs and lower legs (or upper or lower arms) at a stated point above 
and below the knee or elbow given in inches or centimeters. A specific 
description of atrophy of hand muscles is acceptable without 
measurements of atrophy but should include measurements of grip 
strength.
    These physical examination findings must be determined on the basis 
of objective observations during the examination and not simply a report 
of the individual's allegation, e.g., he says his leg is week, numb, 
etc. Alternative testing methods should be used to verify the 
objectivity of the abnormal findings, e.g., a seated straight-leg 
raising test in addition to a supine straight-leg raising test. Since 
abnormal findings may be intermittent, their continuous presence over a 
period of time must be established by a record of ongoing treatment. 
Neurological abnormalities may not completely subside after surgical or 
nonsurgical treatment, or with the passage of time. Residual 
neurological abnormalities, which persist after it has been determined 
clinically or by direct

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surgical or other observation that the ongoing or progressive condition 
is no longer present, cannot be considered to satisfy the required 
findings in 1.05C.
    Where surgical procedures have been performed, documentation should 
include a copy of the operative note and available pathology reports.
    Electrodiagnostic procedures and myelography may be useful in 
establishing the clinical diagnosis, but do not constitute alternative 
criteria to the requirements in 1.05C.
    C. After maximum benefit from surgical therapy has been achieved in 
situations involving fractures of an upper extremity (see 1.12) or soft 
tissue injuries of a lower or upper extremity (see 1.13), i.e., there 
have been no significant changes in physical findings or X-ray findings 
for any 6-month period after the last definitive surgical procedure, 
evaluation should be made on the basis of demonstrable residuals.
    D. Major joints as used herein refer to hip, knee, ankle, shoulder, 
elbow, or wrist and hand. (Wrist and hand are considered together as one 
major joint.)
    E. The measurements of joint motion are based on the techniques 
described in the ``Joint Motion Method of Measuring and Recording,'' 
published by the American Academy of Orthopedic Surgeons in 1965, or the 
``Guides to the Evaluation of Permanent Impairment--The Extremities and 
Back'' (Chapter I); American Medical Association, 1971.
    1.01 Category of Impairments, Musculoskeletal
    1.02 Active rheumatoid arthritis and other inflammatory arthritis.
    With both A and B.
    A. History of persistent joint pain, swelling, and tenderness 
involving multiple major joints (see 1.00D) and with signs of joint 
inflammation (swelling and tenderness) on current physical examination 
despite prescribed therapy for at least 3 months, resulting in 
significant restriction of function of the affected joints, and clinical 
activity expected to last at least 12 months; and
    B. Corroboration of diagnosis at some point in time by either.
    1. Positive serologic test for rheumatoid factor; or
    2. Antinuclear antibodies; or
    3. Elevated sedimentation rate; or
    4. Characteristic histologic changes in biopsy of synovial membrane 
or subcutaneous nodule (obtained independent of Social Security 
disability evaluation).
    1.03 Arthritis of a major weight-bearing joint (due to any cause):
    With history of persistent joint pain and stiffness with signs of 
marked limitation of motion or abnormal motion of the affected joint on 
current physical examination. With:
    A. Gross anatomical deformity of hip or knee (e.g., subluxation, 
contracture, bony or fibrous ankylosis, instability) supported by X-ray 
evidence of either significant joint space narrowing or significant bony 
destruction and markedly limiting ability to walk and stand; or
    B. Reconstructive surgery or surgical arthrodesis of a major weight-
bearing joint and return to full weight-bearing status did not occur, or 
is not expected to occur, within 12 months of onset.
    1.04 Arthritis of one major joint in each of the upper extremities 
(due to any cause):
    With history of persistent joint pain and stiffness, signs of marked 
limitation of motion of the affected joints on current physical 
examination, and X-ray evidence of either significant joint space 
narrowing or significant bony destruction. With:
    A. Abduction and forward flexion (elevation) of both arms at the 
shoulders, including scapular motion, restricted to less than 90 
degrees; or
    B. Gross anatomical deformity (e.g., subluxation, contracture, bony 
or fibrous ankylosis, instability, ulnar deviation) and enlargement or 
effusion of the affected joints.
    1.05 Disorders of the spine:
    A. Arthritis manifested by ankylosis or fixation of the cervical or 
dorsolumbar spine at 30\1/2\ or more of flexion measured from the 
neutral position, with X-ray evidence of:
    1. Calcification of the anterior and lateral ligaments; or
    2. Bilateral ankylosis of the sacroiliac joints with abnormal 
apophyseal articulations; or
    B. Osteoporosis, generalized (established by X-ray) manifested by 
pain and limitation of back motion and paravertebral muscle spasm with 
X-ray evidence of either:
    1. Compression fracture of a vertebral body with loss of at least 50 
percent of the estimated height of the vertebral body prior to the 
compression fracture, with no intervening direct traumatic episode; or
    2. Multiple fractures of vertebrae with no intervening direct 
traumatic episode; or
    C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, 
spinal stenosis) with the following persisting for at least 3 months 
despite prescribed therapy and expected to last 12 months. With both 1 
and 2:
    1. Pain, muscle spasm, and significant limitation of motion in the 
spine; and
    2. Appropriate radicular distribution of significant motor loss with 
muscle weakness and sensory and reflex loss.
    1.08 Osteomyelitis or septic arthritis (established by X-ray):
    A. Located in the pelvis, vertebra, femur, tibia, or a major joint 
of an upper or lower extremity, with persistent activity or occurrence 
of at least two episodes of acute activity within a 5-month period prior 
to adjudication, manifested by local inflammatory,

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and systemic signs and laboratory findings (e.g., heat, redness, 
swelling, leucocytosis, or increased sedimentation rate) and expected to 
last at least 12 months despite prescribed therapy; or
    B. Multiple localizations and systemic manifestations as in A above.
    1.09 Amputation or anatomical deformity of (i.e., loss of major 
function due to degenerative changes associated with vascular or 
neurological deficits, traumatic loss of muscle mass or tendons and X-
ray evidence of bony ankylosis at an unfavorable angle, joint 
subluxation or instability):
    A. Both hands; or
    B. Both feet; or
    C. One hand and one foot.
    1.10 Amputation of one lower extremity (at or above the tarsal 
region):
    A. Hemipelvectomy or hip disarticulation; or
    B. Amputation at or above the tarsal region due to peripheral 
vascular disease or diabetes mellitus; or
    C. Inability to use a prosthesis effectively, without obligatory 
assistive devices, due to one of the following:
    1. Vascular disease; or
    2. Neurological complications (e.g., loss of position sense); or
    3. Stump too short or stump complications persistent, or are 
expected to persist, for at least 12 months from onset; or
    4. Disorder of contralateral lower extremity which markedly limits 
ability to walk and stand.
    1.11 Fracture of the femur, tibia, tarsal bone of pelvis with solid 
union not evident on X-ray and not clinically solid, when such 
determination is feasible, and return to full weight-bearing status did 
not occur or is not expected to occur within 12 months of onset.
    1.12 Fractures of an upper extremity with non-union of a fracture of 
the shaft of the humerus, radius, or ulna under continuing surgical 
management directed toward restoration of functional use of the 
extremity and such function was not restored or expected to be restored 
within 12 months after onset.
    1.13 Soft tissue injuries of an upper or lower extremity requiring a 
series of staged surgical procedures within 12 months after onset for 
salvage and/or restoration of major function of the extremity, and such 
major function was not restored or expected to be restored within 12 
months after onset.

                     2.00 Special Senses and Speech

    A. Ophthalmology
    1. Causes of impairment. Diseases or injury of the eyes may produce 
loss of central or peripheral vision. Loss of central vision results in 
inability to distinguish detail and prevents reading and fine work. Loss 
of peripheral vision restricts the ability of an individual to move 
about freely. The extent of impairment of sight should be determined by 
visual testing.
    2. Central visual acuity. A loss of central visual acuity may be 
caused by impaired distant and/or near vision. However, for an 
individual to meet the level of severity described in 2.02 and 2.04, 
only the remaining central visual acuity for distance of the better eye 
with best correction based on the Snellen test chart measurement may be 
used. Correction obtained by special visual aids (e.g., contact lenses) 
will be considered if the individual has the ability to wear such aids.
    3. Field of vision. Impairment of peripheral vision may result if 
there is contraction of the visual fields. The contraction may be either 
symmetrical or irregular. The extent of the remaining peripheral visual 
field will be determined by usual perimetric methods at a distance of 
330 mm. under illumination of not less than 7-foot candles. For the 
phakic eye (the eye with a lens), a 3 mm. white disc target will be 
used, and for the aphakic eye (the eye without the lens), a 6 mm. white 
disc target will be used. In neither instance should corrective 
spectacle lenses be worn during the examination but if they have been 
used, this fact must be stated.
    Measurements obtained on comparable perimetric devices may be used; 
this does not include the use of tangent screen measurements. For 
measurements obtained using the Goldmann perimeter, the object size 
designation III and the illumination designation 4 should be used for 
the phakic eye, and the object size designation IV and illumination 
designation 4 for the aphakic eye.
    Field measurements must be accompanied by notated field charts, a 
description of the type and size of the target and the test distance. 
Tangent screen visual fields are not acceptable as a measurement of 
peripheral field loss.
    Where the loss is predominantly in the lower visual fields, a system 
such as the weighted grid scale for perimetric fields described by B. 
Esterman (see Grid for Scoring Visual Fields, II. Perimeter, Archives of 
Ophthalmology, 79:400, 1968) may be used for determining whether the 
visual field loss is comparable to that described in Table 2.
    4. Muscle function. Paralysis of the third cranial nerve producing 
ptosis, paralysis of accommodation, and dilation and immobility of the 
pupil may cause significant visual impairment. When all the muscle of 
the eye are paralyzed including the iris and ciliary body (total 
ophthalmoplegia), the condition is considered a severe impairment 
provided it is bilateral. A finding of severe impairment based primarily 
on impaired muscle function must be supported by a report of an actual 
measurement of ocular motility.
    5. Visual efficiency. Loss of visual efficiency may be caused by 
disease or injury resulting in a reduction of central visual acuity or 
visual field. The visual efficiency of one eye is

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the product of the percentage of central visual efficiency and the 
percentage of visual field efficiency. (See Tables No. 1 and 2, 
following 2.09.)
    6. Special situations. Aphakia represents a visual handicap in 
addition to the loss of central visual acuity. The term monocular 
aphakia would apply to an individual who has had the lens removed from 
one eye, and who still retains the lens in his other eye, or to an 
individual who has only one eye which is aphakic. The term binocular 
aphakia would apply to an individual who has had both lenses removed. In 
cases of binocular aphakia, the central efficiency of the better eye 
will be accepted as 75 percent of its value. In cases of monocular 
aphakia, where the better eye is aphakic, the central visual efficiency 
will be accepted as 50 percent of the value. (If an individual has 
binocular aphakia, and the central visual acuity in the poorer eye can 
be corrected only to 20/200, or less, the central visual efficiency of 
the better eye will be accepted as 50 percent of its value.)
    Ocular symptoms of systemic disease may or may not produce a 
disabling visual impairement. These manifestations should be evaluated 
as part of the unde