May 14, 2007 CODE OF FEDERAL REGULATIONS 20 Parts 1 to 399 Revised as of April 1, 2007 Employees' Benefits Containing a codification of documents of general applicability and future effect As of April 1, 2007 With Ancillaries

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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 153 Finding Aids: Table of CFR Titles and Chapters 659 Alphabetical List of Agencies Appearing in the CFR 677 List of CFR Sections Affected 687

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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, 2007.

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 <CFRTITLE> <LRH>20 CFR Ch. I (4-1-07 Edition)</LRH> <RRH>Office of Workers' Compensation Programs, Labor</RRH> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 20—Employees' Benefits</HD> <P>(This book contains parts 1 to 399)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter i</E>—Office of Workers' Compensation Programs, Department of Labor</SUBJECT> <PG>1</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter ii</E>—Railroad Retirement Board</SUBJECT> <PG>200</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER I—OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1</PT> <SUBJECT>Performance of functions</SUBJECT> <PG>5</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—FEDERAL EMPLOYEES' COMPENSATION ACT</HD> </SUBCHAP> <CHAPTI> <PT>10</PT> <SUBJECT>Claims for compensation under the Federal Employees' Compensation Act, as amended</SUBJECT> <PG>7</PG> <PT>25</PT> <SUBJECT>Compensation for disability and death of noncitizen Federal employees outside the United States</SUBJECT> <PG>68</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000</HD> </SUBCHAP> <CHAPTI> <PT>30</PT> <SUBJECT>Claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended</SUBJECT> <PG>77</PG> </CHAPTI> <SUBCHAP> <RESERVED>SUBCHAPTERS D-E [RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES</HD> </SUBCHAP> <CHAPTI> <PT>61</PT> <SUBJECT>Claims for compensation under the War Hazards Compensation Act, as amended</SUBJECT> <PG>139</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER G—COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE IMPERIAL JAPANESE GOVERNMENT</HD> </SUBCHAP> <CHAPTI> <PT>71</PT> <SUBJECT>General provisions</SUBJECT> <PG>149</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="5"/> <HD SOURCE="HED">SUBCHAPTER A—ORGANIZATION AND PROCEDURES</HD> <PART> <EAR>Pt. 1</EAR> <HD SOURCE="HED">PART 1—PERFORMANCE OF FUNCTIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1.1</SECTNO> <SUBJECT>Under what authority was the Office of Workers' Compensation Programs established?</SUBJECT> <SECTNO>1.2</SECTNO> <SUBJECT>What functions are assigned to OWCP?</SUBJECT> <SECTNO>1.3</SECTNO> <SUBJECT>What rules are contained in this chapter?</SUBJECT> <SECTNO>1.4</SECTNO> <SUBJECT>Where are other rules concerning OWCP functions found?</SUBJECT> <SECTNO>1.5</SECTNO> <SUBJECT>When was the former Bureau of Employees' Compensation abolished?</SUBJECT> <SECTNO>1.6</SECTNO> <SUBJECT>How were many of OWCP's current functions administered in the past?</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>71 FR 78533, Dec. 29, 2006 unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.1</SECTNO> <SUBJECT>Under what authority was the Office of Workers' Compensation Programs established?</SUBJECT> <P>The Assistant Secretary of Labor for Employment Standards, by authority vested in him by the Secretary of Labor in Secretary's Order No. 13-71 (36 FR 8755), established in the Employment Standards Administration an Office of Workers' Compensation Programs (OWCP) by Employment Standards Order No. 2-74 (39 FR 34722). The Assistant Secretary subsequently designated as the head thereof a Director who, under the general supervision of the Assistant Secretary, administers the programs assigned to OWCP by the Assistant Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 1.2</SECTNO> <SUBJECT>What functions are assigned to OWCP?</SUBJECT> <P>The Assistant Secretary of Labor for Employment Standards has delegated authority and assigned responsibility to the Director of OWCP for the Department of Labor's programs under the following statutes:</P> <P>(a) The Federal Employees' Compensation Act, as amended and extended (5 U.S.C. 8101 <E T="03">et seq.</E>), except 5 U.S.C. 8149 as it pertains to the Employees' Compensation Appeals Board.</P> <P>(b) The War Hazards Compensation Act (42 U.S.C. 1701 <E T="03">et seq.</E>).</P> <P>(c) The War Claims Act (50 U.S.C. App. 2003).</P> <P>(d) The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 <E T="03">et seq.</E>), except activities, pursuant to Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000, assigned to the Secretary of Health and Human Services, the Secretary of Energy and the Attorney General.</P> <P>(e) The Longshore and Harbor Workers' Compensation Act, as amended and extended (33 U.S.C. 901 <E T="03">et seq.</E>), except: 33 U.S.C. 919(d) with respect to administrative law judges in the Office of Administrative Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board; and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant Secretary of Labor for Occupational Safety and Health.</P> <P>(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 <E T="03">et seq.</E>).</P> </SECTION> <SECTION> <SECTNO>§ 1.3</SECTNO> <SUBJECT>What rules are contained in this chapter?</SUBJECT> <P>The rules in this chapter are those governing the OWCP functions under the Federal Employees' Compensation Act, the War Hazards Compensation Act, the War Claims Act and the Energy Employees Occupational Illness Compensation Program Act of 2000.</P> </SECTION> <SECTION> <SECTNO>§ 1.4</SECTNO> <SUBJECT>Where are other rules concerning OWCP functions found?</SUBJECT> <P>(a) The rules of the OWCP governing its functions under the Longshore and Harbor Workers' Compensation Act and its extensions are set forth in subchapter A of chapter VI of this title.</P> <P>(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.</P> <P>(c) The rules and regulations of the Employees' Compensation Appeals Board are set forth in chapter IV of this title.<PRTPAGE P="6"/> </P> <P>(d) The rules and regulations of the Benefits Review Board are set forth in Chapter VII of this title.</P> </SECTION> <SECTION> <SECTNO>§ 1.5</SECTNO> <SUBJECT>When was the former Bureau of Employees' Compensation abolished?</SUBJECT> <P>By Secretary of Labor's Order issued September 23, 1974 (39 FR 34723), issued concurrently with Employment Standards Order 2-74 (39 FR 34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32 FR 12979), which had delegated authority and assigned responsibility for the various workers' compensation programs enumerated in § 1.2, except the Black Lung Benefits Program and the Energy Employees Occupational Illness Compensation Program not then in existence, to the Director of the former Bureau of Employees' Compensation.</P> </SECTION> <SECTION> <SECTNO>§ 1.6</SECTNO> <SUBJECT>How were many of OWCP's current functions administered in the past?</SUBJECT> <P>(a) Administration of the Federal Employees' Compensation Act and the Longshore and Harbor Workers' Compensation Act was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the Commission was abolished and its functions were transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation within such Agency. By Reorganization Plan No. 19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 1271), said Bureau was transferred to the Department of Labor (DOL), and the authority formerly vested in the Administrator, Federal Security Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to make from time to time such provisions as he shall deem appropriate, authorizing the performance of any of his functions by any other officer, agency, or employee of the DOL.</P> <P>(b) In 1972, two separate organizational units were established within the Bureau: an Office of Workmen's Compensation Programs (37 FR 20533) and an Office of Federal Employees' Compensation (37 FR 22979). In 1974, these two units were abolished and one organizational unit, the Office of Workers' Compensation Programs, was established in lieu of the Bureau of Employees' Compensation (39 FR 34722).</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="7"/> <HD SOURCE="HED">SUBCHAPTER B—FEDERAL EMPLOYEES' COMPENSATION ACT</HD> <PART> <EAR>Pt. 10</EAR> <HD SOURCE="HED">PART 10—CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Introduction</HD> <SECHD>Sec.</SECHD> <SECTNO>10.0</SECTNO> <SUBJECT>What are the provisions of the FECA, in general?</SUBJECT> <SECTNO>10.1</SECTNO> <SUBJECT>What rules govern the administration of the FECA and this chapter?</SUBJECT> <SECTNO>10.2</SECTNO> <SUBJECT>What do these regulations contain?</SUBJECT> <SECTNO>10.3</SECTNO> <SUBJECT>Have the collection of information requirements of this part been approved by the Office of Management and Budget (OMB)?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Definitions and Forms</HD> <SECTNO>10.5</SECTNO> <SUBJECT>What definitions apply to these regulations?</SUBJECT> <SECTNO>10.6</SECTNO> <SUBJECT>What special statutory definitions apply to dependents and survivors?</SUBJECT> <SECTNO>10.7</SECTNO> <SUBJECT>What forms are needed to process claims under the FECA?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information in Program Records</HD> <SECTNO>10.10</SECTNO> <SUBJECT>Are all documents relating to claims filed under the FECA considered confidential?</SUBJECT> <SECTNO>10.11</SECTNO> <SUBJECT>Who maintains custody and control of FECA records?</SUBJECT> <SECTNO>10.12</SECTNO> <SUBJECT>How may a FECA claimant or beneficiary obtain copies of protected records?</SUBJECT> <SECTNO>10.13</SECTNO> <SUBJECT>What process is used by a person who wants to correct FECA-related documents?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rights and Penalties</HD> <SECTNO>10.15</SECTNO> <SUBJECT>May compensation rights be waived?</SUBJECT> <SECTNO>10.16</SECTNO> <SUBJECT>What criminal penalties may be imposed in connection with a claim under the FECA?</SUBJECT> <SECTNO>10.17</SECTNO> <SUBJECT>Is a beneficiary who defrauds the Government in connection with a claim for benefits still entitled to those benefits?</SUBJECT> <SECTNO>10.18</SECTNO> <SUBJECT>Can a beneficiary who is incarcerated based on a felony conviction still receive benefits?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Filing Notices and Claims; Submitting Evidence</HD> <SUBJGRP> <HD SOURCE="HED">Notices and Claims for Injury, Disease and Death—Employee or Survivor's Actions</HD> <SECTNO>10.100</SECTNO> <SUBJECT>How and when is a notice of traumatic injury filed?</SUBJECT> <SECTNO>10.101</SECTNO> <SUBJECT>How and when is a notice of occupational disease filed?</SUBJECT> <SECTNO>10.102</SECTNO> <SUBJECT>How and when is a claim for wage loss compensation filed?</SUBJECT> <SECTNO>10.103</SECTNO> <SUBJECT>How and when is a claim for permanent impairment filed?</SUBJECT> <SECTNO>10.104</SECTNO> <SUBJECT>How and when is a claim for recurrence filed?</SUBJECT> <SECTNO>10.105</SECTNO> <SUBJECT>How and when is a notice of death and claim for benefits filed?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Notices and Claims for Injury, Disease and Death—Employer's Actions</HD> <SECTNO>10.110</SECTNO> <SUBJECT>What should the employer do when an employee files a notice of traumatic injury or occupational disease?</SUBJECT> <SECTNO>10.111</SECTNO> <SUBJECT>What should the employer do when an employee files an initial claim for compensation due to disability or permanent impairment?</SUBJECT> <SECTNO>10.112</SECTNO> <SUBJECT>What should the employer do when an employee files a claim for continuing compensation due to disability?</SUBJECT> <SECTNO>10.113</SECTNO> <SUBJECT>What should the employer do when an employee dies from a work-related injury or disease?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence and Burden of Proof</HD> <SECTNO>10.115</SECTNO> <SUBJECT>What evidence is needed to establish a claim?</SUBJECT> <SECTNO>10.116</SECTNO> <SUBJECT>What additional evidence is needed in cases based on occupational disease?</SUBJECT> <SECTNO>10.117</SECTNO> <SUBJECT>What happens if, in any claim, the employer contests any of the facts as stated by the claimant?</SUBJECT> <SECTNO>10.118</SECTNO> <SUBJECT>Does the employer participate in the claims process in any other way?</SUBJECT> <SECTNO>10.119</SECTNO> <SUBJECT>What action will OWCP take with respect to information submitted by the employer?</SUBJECT> <SECTNO>10.120</SECTNO> <SUBJECT>May a claimant submit additional evidence?</SUBJECT> <SECTNO>10.121</SECTNO> <SUBJECT>What happens if OWCP needs more evidence from the claimant?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Decisions on Entitlement to Benefits</HD> <SECTNO>10.125</SECTNO> <SUBJECT>How does OWCP determine entitlement to benefits?</SUBJECT> <SECTNO>10.126</SECTNO> <SUBJECT>What does the decision contain?</SUBJECT> <SECTNO>10.127</SECTNO> <SUBJECT>To whom is the decision sent?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="8"/> <HD SOURCE="HED">Subpart C—Continuation of Pay</HD> <SECTNO>10.200</SECTNO> <SUBJECT>What is continuation of pay?</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Eligibility for COP</HD> <SECTNO>10.205</SECTNO> <SUBJECT>What conditions must be met to receive COP?</SUBJECT> <SECTNO>10.206</SECTNO> <SUBJECT>May an employee who uses leave after an injury later decide to use COP instead?</SUBJECT> <SECTNO>10.207</SECTNO> <SUBJECT>May an employee who returns to work, then stops work again due to the effects of the injury, receive COP?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibilities</HD> <SECTNO>10.210</SECTNO> <SUBJECT>What are the employee's responsibilities in COP cases?</SUBJECT> <SECTNO>10.211</SECTNO> <SUBJECT>What are the employer's responsibilities in COP cases?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Calculation of COP</HD> <SECTNO>10.215</SECTNO> <SUBJECT>How does OWCP compute the number of days of COP used?</SUBJECT> <SECTNO>10.216</SECTNO> <SUBJECT>How is the pay rate for COP calculated?</SUBJECT> <SECTNO>10.217</SECTNO> <SUBJECT>Is COP charged if the employee continues to work, but in a different job that pays less?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Controversion and Termination of COP</HD> <SECTNO>10.220</SECTNO> <SUBJECT>When is an employer not required to pay COP?</SUBJECT> <SECTNO>10.221</SECTNO> <SUBJECT>How is a claim for COP controverted?</SUBJECT> <SECTNO>10.222</SECTNO> <SUBJECT>When may an employer terminate COP which has already begun?</SUBJECT> <SECTNO>10.223</SECTNO> <SUBJECT>Are there other circumstances under which OWCP will not authorize payment of COP?</SUBJECT> <SECTNO>10.224</SECTNO> <SUBJECT>What happens if OWCP finds that the employee is not entitled to COP after it has been paid?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Medical and Related Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Emergency Medical Care</HD> <SECTNO>10.300</SECTNO> <SUBJECT>What are the basic rules for authorizing emergency medical care?</SUBJECT> <SECTNO>10.301</SECTNO> <SUBJECT>May the physician designated on Form CA-16 refer the employee to another medical specialist or medical facility?</SUBJECT> <SECTNO>10.302</SECTNO> <SUBJECT>Should the employer authorize medical care if he or she doubts that the injury occurred, or that it is work-related?</SUBJECT> <SECTNO>10.303</SECTNO> <SUBJECT>Should the employer use a Form CA-16 to authorize medical testing when an employee is exposed to a workplace hazard just once?</SUBJECT> <SECTNO>10.304</SECTNO> <SUBJECT>Are there any exceptions to these procedures for obtaining emergency medical care?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Treatment and Related Issues</HD> <SECTNO>10.310</SECTNO> <SUBJECT>What are the basic rules for obtaining medical care?</SUBJECT> <SECTNO>10.311</SECTNO> <SUBJECT>What are the special rules for the services of chiropractors?</SUBJECT> <SECTNO>10.312</SECTNO> <SUBJECT>What are the special rules for the services of clinical psychologists?</SUBJECT> <SECTNO>10.313</SECTNO> <SUBJECT>Will OWCP pay for preventive treatment?</SUBJECT> <SECTNO>10.314</SECTNO> <SUBJECT>Will OWCP pay for the services of an attendant?</SUBJECT> <SECTNO>10.315</SECTNO> <SUBJECT>Will OWCP pay for transportation to obtain medical treatment?</SUBJECT> <SECTNO>10.316</SECTNO> <SUBJECT>After selecting a treating physician, may an employee choose to be treated by another physician instead?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Directed Medical Examinations</HD> <SECTNO>10.320</SECTNO> <SUBJECT>Can OWCP require an employee to be examined by another physician?</SUBJECT> <SECTNO>10.321</SECTNO> <SUBJECT>What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?</SUBJECT> <SECTNO>10.322</SECTNO> <SUBJECT>Who pays for second opinion and referee examinations?</SUBJECT> <SECTNO>10.323</SECTNO> <SUBJECT>What are the penalties for failing to report for or obstructing a second opinion or referee examination?</SUBJECT> <SECTNO>10.324</SECTNO> <SUBJECT>May an employer require an employee to undergo a physical examination in connection with a work-related injury?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Reports</HD> <SECTNO>10.330</SECTNO> <SUBJECT>What are the requirements for medical reports?</SUBJECT> <SECTNO>10.331</SECTNO> <SUBJECT>How and when should the medical report be submitted?</SUBJECT> <SECTNO>10.332</SECTNO> <SUBJECT>What additional medical information will OWCP require to support continuing payment of benefits?</SUBJECT> <SECTNO>10.333</SECTNO> <SUBJECT>What additional medical information will OWCP require to support a claim for a schedule award?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Bills</HD> <SECTNO>10.335</SECTNO> <SUBJECT>How are medical bills submitted?</SUBJECT> <SECTNO>10.336</SECTNO> <SUBJECT>What are the time frames for submitting bills?</SUBJECT> <SECTNO>10.337</SECTNO> <SUBJECT>If OWCP reimburses an employee only partially for a medical expense, must the provider refund the balance of the amount paid to the employee?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Compensation and Related Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Compensation for Disability and Impairment</HD> <SECTNO>10.400</SECTNO> <SUBJECT>What is total disability?</SUBJECT> <SECTNO>10.401</SECTNO> <SUBJECT>When and how is compensation for total disability paid?</SUBJECT> <SECTNO>10.402</SECTNO> <SUBJECT>What is partial disability?</SUBJECT> <SECTNO>10.403</SECTNO> <SUBJECT>When and how is compensation for partial disability paid?</SUBJECT> <SECTNO>10.404</SECTNO> <SUBJECT>When and how is compensation for a schedule impairment paid?<PRTPAGE P="9"/> </SUBJECT> <SECTNO>10.405</SECTNO> <SUBJECT>Who is considered a dependent in a claim based on disability or impairment?</SUBJECT> <SECTNO>10.406</SECTNO> <SUBJECT>What are the maximum and minimum rates of compensation in disability cases?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Compensation for Death</HD> <SECTNO>10.410</SECTNO> <SUBJECT>Who is entitled to compensation in case of death, and what are the rates of compensation payable in death cases?</SUBJECT> <SECTNO>10.411</SECTNO> <SUBJECT>What are the maximum and minimum rates of compensation in death cases?</SUBJECT> <SECTNO>10.412</SECTNO> <SUBJECT>Will OWCP pay the costs of burial and transportation of the remains?</SUBJECT> <SECTNO>10.413</SECTNO> <SUBJECT>If a person dies while receiving a schedule award, to whom is the balance of the schedule award payable?</SUBJECT> <SECTNO>10.414</SECTNO> <SUBJECT>What reports of dependents are needed in death cases?</SUBJECT> <SECTNO>10.415</SECTNO> <SUBJECT>What must a beneficiary do if the number of beneficiaries decreases?</SUBJECT> <SECTNO>10.416</SECTNO> <SUBJECT>How does a change in the number of beneficiaries affect the amount of compensation paid to the other beneficiaries?</SUBJECT> <SECTNO>10.417</SECTNO> <SUBJECT>What reports are needed when compensation payments continue for children over age 18?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Adjustments to Compensation</HD> <SECTNO>10.420</SECTNO> <SUBJECT>How are cost-of-living adjustments applied?</SUBJECT> <SECTNO>10.421</SECTNO> <SUBJECT>May a beneficiary receive other kinds of payments from the Federal Government concurrently with compensation?</SUBJECT> <SECTNO>10.422</SECTNO> <SUBJECT>May compensation payments be issued in a lump sum?</SUBJECT> <SECTNO>10.423</SECTNO> <SUBJECT>May compensation payments be assigned to, or attached by, creditors?</SUBJECT> <SECTNO>10.424</SECTNO> <SUBJECT>May someone other than the beneficiary be designated to receive compensation payments?</SUBJECT> <SECTNO>10.425</SECTNO> <SUBJECT>May compensation be claimed for periods of restorable leave?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Overpayments</HD> <SECTNO>10.430</SECTNO> <SUBJECT>How does OWCP notify an individual of a payment made?</SUBJECT> <SECTNO>10.431</SECTNO> <SUBJECT>What does OWCP do when an overpayment is identified?</SUBJECT> <SECTNO>10.432</SECTNO> <SUBJECT>How can an individual present evidence to OWCP in response to a preliminary notice of an overpayment?</SUBJECT> <SECTNO>10.433</SECTNO> <SUBJECT>Under what circumstances can OWCP waive recovery of an overpayment?</SUBJECT> <SECTNO>10.434</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.435</SECTNO> <SUBJECT>Is an individual responsible for an overpayment that resulted from an error made by OWCP or another Government agency?</SUBJECT> <SECTNO>10.436</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment defeat the purpose of the FECA?</SUBJECT> <SECTNO>10.437</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment be against equity and good conscience?</SUBJECT> <SECTNO>10.438</SECTNO> <SUBJECT>Can OWCP require the individual who received the overpayment to submit additional financial information?</SUBJECT> <SECTNO>10.439</SECTNO> <SUBJECT>What is addressed at a pre-recoupment hearing?</SUBJECT> <SECTNO>10.440</SECTNO> <SUBJECT>How does OWCP communicate its final decision concerning recovery of an overpayment, and what appeal right accompanies it?</SUBJECT> <SECTNO>10.441</SECTNO> <SUBJECT>How are overpayments collected?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Continuing Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Rules and Evidence</HD> <SECTNO>10.500</SECTNO> <SUBJECT>What are the basic rules for continuing receipt of compensation benefits and return to work?</SUBJECT> <SECTNO>10.501</SECTNO> <SUBJECT>What medical evidence is necessary to support continuing receipt of compensation benefits?</SUBJECT> <SECTNO>10.502</SECTNO> <SUBJECT>How does OWCP evaluate evidence in support of continuing receipt of compensation benefits?</SUBJECT> <SECTNO>10.503</SECTNO> <SUBJECT>Under what circumstances may OWCP reduce or terminate compensation benefits?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Return to Work—Employer's Responsibilities</HD> <SECTNO>10.505</SECTNO> <SUBJECT>What actions must the employer take?</SUBJECT> <SECTNO>10.506</SECTNO> <SUBJECT>May the employer monitor the employee's medical care?</SUBJECT> <SECTNO>10.507</SECTNO> <SUBJECT>How should the employer make an offer of suitable work?</SUBJECT> <SECTNO>10.508</SECTNO> <SUBJECT>May relocation expenses be paid for an employee who would need to move to accept an offer of reemployment?</SUBJECT> <SECTNO>10.509</SECTNO> <SUBJECT>If an employee's light-duty job is eliminated due to downsizing, what is the effect on compensation?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Return to Work—Employee's Responsibilities</HD> <SECTNO>10.515</SECTNO> <SUBJECT>What actions must the employee take with respect to returning to work?</SUBJECT> <SECTNO>10.516</SECTNO> <SUBJECT>How will an employee know if OWCP considers a job to be suitable?</SUBJECT> <SECTNO>10.517</SECTNO> <SUBJECT>What are the penalties for refusing to accept a suitable job offer?</SUBJECT> <SECTNO>10.518</SECTNO> <SUBJECT>Does OWCP provide services to help employees return to work?</SUBJECT> <SECTNO>10.519</SECTNO> <SUBJECT>What action will OWCP take if an employee refuses to undergo vocational rehabilitation?</SUBJECT> <SECTNO>10.520</SECTNO> <SUBJECT>How does OWCP determine compensation after an employee completes a vocational rehabilitation program?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports of Earnings From Employment and Self-Employment</HD> <SECTNO>10.525</SECTNO> <SUBJECT>What information must the employee report?<PRTPAGE P="10"/> </SUBJECT> <SECTNO>10.526</SECTNO> <SUBJECT>Must the employee report volunteer activities?</SUBJECT> <SECTNO>10.527</SECTNO> <SUBJECT>Does OWCP verify reports of earnings?</SUBJECT> <SECTNO>10.528</SECTNO> <SUBJECT>What action will OWCP take if the employee fails to file a report of activity indicating an ability to work?</SUBJECT> <SECTNO>10.529</SECTNO> <SUBJECT>What action will OWCP take if the employee files an incomplete report?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports of Dependents</HD> <SECTNO>10.535</SECTNO> <SUBJECT>How are dependents defined, and what information must the employee report?</SUBJECT> <SECTNO>10.536</SECTNO> <SUBJECT>What is the penalty for failing to submit a report of dependents?</SUBJECT> <SECTNO>10.537</SECTNO> <SUBJECT>What reports are needed when compensation payments continue for children over age 18?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reduction and Termination of Compensation</HD> <SECTNO>10.540</SECTNO> <SUBJECT>When and how is compensation reduced or terminated?</SUBJECT> <SECTNO>10.541</SECTNO> <SUBJECT>What action will OWCP take after issuing written notice of its intention to reduce or terminate compensation?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Appeals Process</HD> <SECTNO>10.600</SECTNO> <SUBJECT>How can final decisions of OWCP be reviewed?</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Reconsiderations and Reviews by the Director</HD> <SECTNO>10.605</SECTNO> <SUBJECT>What is reconsideration?</SUBJECT> <SECTNO>10.606</SECTNO> <SUBJECT>How does a claimant request reconsideration?</SUBJECT> <SECTNO>10.607</SECTNO> <SUBJECT>What is the time limit for requesting reconsideration?</SUBJECT> <SECTNO>10.608</SECTNO> <SUBJECT>How does OWCP decide whether to grant or deny the request for reconsideration?</SUBJECT> <SECTNO>10.609</SECTNO> <SUBJECT>How does OWCP decide whether new evidence requires modification of the prior decision?</SUBJECT> <SECTNO>10.610</SECTNO> <SUBJECT>What is a review by the Director?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings</HD> <SECTNO>10.615</SECTNO> <SUBJECT>What is a hearing?</SUBJECT> <SECTNO>10.616</SECTNO> <SUBJECT>How does a claimant obtain a hearing?</SUBJECT> <SECTNO>10.617</SECTNO> <SUBJECT>How is an oral hearing conducted?</SUBJECT> <SECTNO>10.618</SECTNO> <SUBJECT>How is a review of the written record conducted?</SUBJECT> <SECTNO>10.619</SECTNO> <SUBJECT>May subpoenas be issued for witnesses and documents?</SUBJECT> <SECTNO>10.62</SECTNO> <SUBJECT>Who pays the costs associated with subpoenas?</SUBJECT> <SECTNO>10.621</SECTNO> <SUBJECT>What is the employer's role when an oral hearing has been requested?</SUBJECT> <SECTNO>10.622</SECTNO> <SUBJECT>May a claimant withdraw a request for or postpone a hearing?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reviews by the Employees' Compensation Appeals Board (ECAB)</HD> <SECTNO>10.625</SECTNO> <SUBJECT>What kinds of decisions may be appealed?</SUBJECT> <SECTNO>10.626</SECTNO> <SUBJECT>Who has jurisdiction of cases on appeal to the ECAB?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Special Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Representation</HD> <SECTNO>10.70</SECTNO> <SUBJECT>May a claimant designate a representative?</SUBJECT> <SECTNO>10.701</SECTNO> <SUBJECT>Who may serve as a representative?</SUBJECT> <SECTNO>10.702</SECTNO> <SUBJECT>How are fees for services paid?</SUBJECT> <SECTNO>10.703</SECTNO> <SUBJECT>How are fee applications approved?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Third Party Liability</HD> <SECTNO>10.705</SECTNO> <SUBJECT>When must an employee or other FECA beneficiary take action against a third party?</SUBJECT> <SECTNO>10.706</SECTNO> <SUBJECT>How will a beneficiary know if OWCP or SOL has determined that action against a third party is required?</SUBJECT> <SECTNO>10.707</SECTNO> <SUBJECT>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”?</SUBJECT> <SECTNO>10.708</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.709</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.71</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.711</SECTNO> <SUBJECT>How much of any settlement or judgment must be paid to the United States?</SUBJECT> <SECTNO>10.712</SECTNO> <SUBJECT>What amounts are included in the gross recovery?</SUBJECT> <SECTNO>10.713</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.714</SECTNO> <SUBJECT>What amounts are included in the refundable disbursements?</SUBJECT> <SECTNO>10.715</SECTNO> <SUBJECT>Is a beneficiary required to pay interest on the amount of the refund due to the United States?</SUBJECT> <SECTNO>10.716</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.717</SECTNO> <SUBJECT>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?<PRTPAGE P="11"/> </SUBJECT> <SECTNO>10.718</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>10.719</SECTNO> <SUBJECT>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?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Federal Grand and Petit Jurors</HD> <SECTNO>10.725</SECTNO> <SUBJECT>When is a Federal grand or petit juror covered under the FECA?</SUBJECT> <SECTNO>10.726</SECTNO> <SUBJECT>When does a juror's entitlement to disability compensation begin?</SUBJECT> <SECTNO>10.727</SECTNO> <SUBJECT>What is the pay rate of jurors for compensation purposes?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Peace Corps Volunteers</HD> <SECTNO>10.73</SECTNO> <SUBJECT>What are the conditions of coverage for Peace Corps volunteers and volunteer leaders injured while serving outside the United States?</SUBJECT> <SECTNO>10.731</SECTNO> <SUBJECT>What is the pay rate of Peace Corps volunteers and volunteer leaders for compensation purposes?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Non-Federal Law Enforcement Officers</HD> <SECTNO>10.735</SECTNO> <SUBJECT>When is a non-Federal law enforcement officer (LEO) covered under the FECA?</SUBJECT> <SECTNO>10.736</SECTNO> <SUBJECT>What are the time limits for filing a LEO claim?</SUBJECT> <SECTNO>10.737</SECTNO> <SUBJECT>How is a LEO claim filed, and who can file a LEO claim?</SUBJECT> <SECTNO>10.738</SECTNO> <SUBJECT>Under what circumstances are benefits payable in LEO claims?</SUBJECT> <SECTNO>10.739</SECTNO> <SUBJECT>What kind of objective evidence of a potential Federal crime must exist for coverage to be extended?</SUBJECT> <SECTNO>10.740</SECTNO> <SUBJECT>In what situations will OWCP automatically presume that a law enforcement officer is covered by the FECA?</SUBJECT> <SECTNO>10.741</SECTNO> <SUBJECT>How are benefits calculated in LEO claims?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Information for Medical Providers</HD> <SUBJGRP> <HD SOURCE="HED">Medical Records and Bills</HD> <SECTNO>10.800</SECTNO> <SUBJECT>What kind of medical records must providers keep?</SUBJECT> <SECTNO>10.801</SECTNO> <SUBJECT>How are medical bills to be submitted?</SUBJECT> <SECTNO>10.802</SECTNO> <SUBJECT>How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?</SUBJECT> <SECTNO>10.803</SECTNO> <SUBJECT>What are the time limitations on OWCP's payment of bills?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Fee Schedule</HD> <SECTNO>10.805</SECTNO> <SUBJECT>What services are covered by the OWCP fee schedule?</SUBJECT> <SECTNO>10.806</SECTNO> <SUBJECT>How are the maximum fees defined?</SUBJECT> <SECTNO>10.807</SECTNO> <SUBJECT>How are payments for particular services calculated?</SUBJECT> <SECTNO>10.808</SECTNO> <SUBJECT>Does the fee schedule apply to every kind of procedure?</SUBJECT> <SECTNO>10.809</SECTNO> <SUBJECT>How are payments for medicinal drugs determined?</SUBJECT> <SECTNO>10.810</SECTNO> <SUBJECT>How are payments for inpatient medical services determined?</SUBJECT> <SECTNO>10.811</SECTNO> <SUBJECT>When and how are fees reduced?</SUBJECT> <SECTNO>10.812</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider request reconsideration of the reduction?</SUBJECT> <SECTNO>10.813</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider bill the claimant for the balance?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Exclusion of Providers</HD> <SECTNO>10.815</SECTNO> <SUBJECT>What are the grounds for excluding a provider from payment under the FECA?</SUBJECT> <SECTNO>10.816</SECTNO> <SUBJECT>What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?</SUBJECT> <SECTNO>10.817</SECTNO> <SUBJECT>When are OWCP's exclusion procedures initiated?</SUBJECT> <SECTNO>10.818</SECTNO> <SUBJECT>How is a provider notified of OWCP's intent to exclude him or her?</SUBJECT> <SECTNO>10.819</SECTNO> <SUBJECT>What requirements must the provider's reply and OWCP's decision meet?</SUBJECT> <SECTNO>10.820</SECTNO> <SUBJECT>How can an excluded provider request a hearing?</SUBJECT> <SECTNO>10.821</SECTNO> <SUBJECT>How are hearings assigned and scheduled?</SUBJECT> <SECTNO>10.822</SECTNO> <SUBJECT>How are subpoenas or advisory opinions obtained?</SUBJECT> <SECTNO>10.823</SECTNO> <SUBJECT>How will the administrative law judge conduct the hearing and issue the recommended decision?</SUBJECT> <SECTNO>10.824</SECTNO> <SUBJECT>How can a party request review by the Director of the administrative law judge's recommended decision?</SUBJECT> <SECTNO>10.825</SECTNO> <SUBJECT>What are the effects of exclusion?</SUBJECT> <SECTNO>10.826</SECTNO> <SUBJECT>How can an excluded provider be reinstated?</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 65306, Nov. 25, 1998, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Introduction</HD> <SECTION> <SECTNO>§ 10.0</SECTNO> <SUBJECT>What are the provisions of the FECA, in general?</SUBJECT> <P>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 <PRTPAGE P="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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.1</SECTNO> <SUBJECT>What rules govern the administration of the FECA and this chapter?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.2</SECTNO> <SUBJECT>What do these regulations contain?</SUBJECT> <P>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:</P> <P>(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.</P> <P>(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.</P> <P>(c) Subpart C: The rules governing claims for and payment of continuation of pay.</P> <P>(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.</P> <P>(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.<PRTPAGE P="13"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.3</SECTNO> <SUBJECT>Have the collection of information requirements of this part been approved by the Office of Management and Budget (OMB)?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Definitions and Forms</HD> <SECTION> <SECTNO>§ 10.5</SECTNO> <SUBJECT>What definitions apply to these regulations?</SUBJECT> <P>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.</P> <P>(a) <E T="03">Benefits</E> or <E T="03">Compensation</E> 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.</P> <P>(b) <E T="03">Beneficiary</E> means an individual who is entitled to a benefit under the FECA and this part.</P> <P>(c) <E T="03">Claim</E> means a written assertion of an individual's entitlement to benefits under the FECA, submitted in a manner authorized by this part.</P> <P>(d) <E T="03">Claimant</E> means an individual whose claim has been filed.</P> <P>(e) <E T="03">Director</E> means the Director of OWCP or a person designated to carry out his or her functions.</P> <P>(f) <E T="03">Disability</E> 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.</P> <P>(g) <E T="03">Earnings from employment or self-employment</E> means:</P> <P>(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</P> <P>(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.</P> <P>(h) <E T="03">Employee</E> means, but is not limited to, an individual who fits within one of the following listed groups:</P> <P>(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;</P> <P>(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 <PRTPAGE P="14"/>authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;</P> <P>(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;</P> <P>(4) An individual appointed to a position on the office staff of a former President; or</P> <P>(5) An individual selected and serving as a Federal petit or grand juror.</P> <P>(i) <E T="03">Employer or Agency</E> 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.</P> <P>(j) <E T="03">Entitlement</E> means entitlement to benefits as determined by OWCP under the FECA and the procedures described in this part.</P> <P>(k) <E T="03">FECA</E> means the Federal Employees' Compensation Act, as amended.</P> <P>(l) <E T="03">Hospital services</E> means services and supplies provided by hospitals within the scope of their practice as defined by State law.</P> <P>(m) <E T="03">Impairment</E> means any anatomic or functional abnormality or loss. A permanent impairment is any such abnormality or loss after maximum medical improvement has been achieved.</P> <P>(n) <E T="03">Knowingly</E> means with knowledge, consciously, willfully or intentionally.</P> <P>(o) <E T="03">Medical services</E> 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> <P>(p) <E T="03">Medical support services</E> means services, drugs, supplies and appliances provided by a person other than a physician or hospital.</P> <P>(q) <E T="03">Occupational disease</E> or <E T="03">Illness</E> means a condition produced by the work environment over a period longer than a single workday or shift.</P> <P>(r) <E T="03">OWCP</E> means the Office of Workers' Compensation Programs.</P> <P>(s) <E T="03">Pay rate for compensation purposes</E> 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.</P> <P>(t) <E T="03">Physician</E> 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.</P> <P>(u) <E T="03">Qualified hospital</E> 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.</P> <P>(v) <E T="03">Qualified physician</E> 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.</P> <P>(w) <E T="03">Qualified provider of medical support services or supplies</E> 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.</P> <P>(x) <E T="03">Recurrence of disability</E> means an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition <PRTPAGE P="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.</P> <P>(y) <E T="03">Recurrence of medical condition</E> 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.</P> <P>(z) <E T="03">Representative</E> 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.</P> <P>(aa) <E T="03">Student</E> means an individual defined at 5 U.S.C. 8101(17). Two terms used in that particular definition are further defined as follows:</P> <P>(1) <E T="03">Additional type of educational or training institution</E> 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.</P> <P>(2) <E T="03">Year beyond the high school level</E> means:</P> <P>(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</P> <P>(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.</P> <P>(bb) <E T="03">Subluxation</E> 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.</P> <P>(cc) <E T="03">Surviving spouse</E> 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.</P> <P>(dd) <E T="03">Temporary aggravation</E> 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.</P> <P>(ee) <E T="03">Traumatic injury</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.6</SECTNO> <SUBJECT>What special statutory definitions apply to dependents and survivors?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) 5 U.S.C. 8110(b) further provides that any employee who is found to be <PRTPAGE P="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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.7</SECTNO> <SUBJECT>What forms are needed to process claims under the FECA?</SUBJECT> <P>(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.</P> <GPOTABLE CDEF="s25,r75" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Form No.</CHED> <CHED H="1">Title</CHED> </BOXHD> <ROW> <ENT I="01">(1) CA-1</ENT> <ENT>Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/ Compensation</ENT> </ROW> <ROW> <ENT I="01">(2) CA-2</ENT> <ENT>Notice of Occupational Disease and Claim for Compensation</ENT> </ROW> <ROW> <ENT I="01">(3) CA-2a</ENT> <ENT>Notice of Employee's Recurrence of Disability and Claim for Pay/ Compensation</ENT> </ROW> <ROW> <ENT I="01">(4) CA-5</ENT> <ENT>Claim for Compensation by Widow, Widower and/or Children</ENT> </ROW> <ROW> <ENT I="01">(5) CA-5b</ENT> <ENT>Claim for Compensation by Parents, Brothers, Sisters, Grandparents, or Grandchildren</ENT> </ROW> <ROW> <ENT I="01">(6) CA-6</ENT> <ENT>Official Superior's Report of Employee's Death</ENT> </ROW> <ROW> <ENT I="01">(7) CA-7</ENT> <ENT>Claim for Compensation Due to Traumatic Injury or Occupational Disease</ENT> </ROW> <ROW> <ENT I="01">(8) CA-7a</ENT> <ENT>Time Analysis Form</ENT> </ROW> <ROW> <ENT I="01">(9) CA-7b</ENT> <ENT>Leave Buy Back (LBB) Worksheet/Certification and Election</ENT> </ROW> <ROW> <ENT I="01">(10) CA-16</ENT> <ENT>Authorization of Examination and/or Treatment</ENT> </ROW> <ROW> <ENT I="01">(11) CA-17</ENT> <ENT>Duty Status Report</ENT> </ROW> <ROW> <ENT I="01">(12) CA-20</ENT> <ENT>Attending Physician's Report</ENT> </ROW> </GPOTABLE> <P>(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 <E T="03">www.dol.gov./dol/esa/owcp.htm.</E> </P> <CITA>[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information in Program Records</HD> <SECTION> <SECTNO>§ 10.10</SECTNO> <SUBJECT>Are all documents relating to claims filed under the FECA considered confidential?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.11</SECTNO> <SUBJECT>Who maintains custody and control of FECA records?</SUBJECT> <P>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 <E T="04">Federal Register.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.12</SECTNO> <SUBJECT>How may a FECA claimant or beneficiary obtain copies of protected records?</SUBJECT> <P>(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.</P> <P>(b)(1) While an employing agency may establish procedures that an injured employee or beneficiary should <PRTPAGE P="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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.13</SECTNO> <SUBJECT>What process is used by a person who wants to correct FECA-related documents?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rights and Penalties</HD> <SECTION> <SECTNO>§ 10.15</SECTNO> <SUBJECT>May compensation rights be waived?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.16</SECTNO> <SUBJECT>What criminal penalties may be imposed in connection with a claim under the FECA?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.17</SECTNO> <SUBJECT>Is a beneficiary who defrauds the Government in connection with a claim for benefits still entitled to those benefits?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.18</SECTNO> <SUBJECT>Can a beneficiary who is incarcerated based on a felony conviction still receive benefits?</SUBJECT> <P>(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.</P> <P>(b) If the beneficiary has eligible dependents, OWCP will pay compensation <PRTPAGE P="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.</P> <P>(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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Filing Notices and Claims; Submitting Evidence</HD> <SUBJGRP> <HD SOURCE="HED">Notices and Claims for Injury, Disease, and Death—Employee or Survivor's Actions</HD> <SECTION> <SECTNO>§ 10.100</SECTNO> <SUBJECT>How and when is a notice of traumatic injury filed?</SUBJECT> <P>(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 <E T="03">www.dol.gov./dol/esa/owcp.htm.</E> 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.</P> <P>(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 § 10.205 concerning time requirements for filing claims for continuation of pay.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(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)).</P> </SECTION> <SECTION> <SECTNO>§ 10.101</SECTNO> <SUBJECT>How and when is a notice of occupational disease filed?</SUBJECT> <P>(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 <E T="03">www.dol.gov./dol/esa/owcp.htm.</E> 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.</P> <P>(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 § 10.100(b)(1) through (3).<PRTPAGE P="19"/> </P> <P>(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)).</P> </SECTION> <SECTION> <SECTNO>§ 10.102</SECTNO> <SUBJECT>How and when is a claim for wage loss compensation filed?</SUBJECT> <P>(a) Form CA-7 is used to claim compensation for periods of disability not covered by COP.</P> <P>(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.</P> <P>(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.</P> <P>(3) The requirements for filing claims are further described in 5 U.S.C. 8121.</P> <P>(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.</P> <P>(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.</P> <P>(2) The employee shall complete the front of Form CA-7 and submit the form to the employer for completion and transmission to OWCP.</P> <P>(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.</P> <CITA>[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.103</SECTNO> <SUBJECT>How and when is a claim for permanent impairment filed?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.104</SECTNO> <SUBJECT>How and when is a claim for recurrence filed?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.105</SECTNO> <SUBJECT>How and when is a notice of death and claim for benefits filed?</SUBJECT> <P>(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 <E T="03">www.dol.gov./dol/esa/owcp.htm.</E> The survivor must provide this notice in writing and forward it to the employer. <PRTPAGE P="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.</P> <P>(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 § 10.100(b)(1) through (3).</P> <P>(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)).</P> <P>(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.</P> <P>(e) A survivor must be alive to receive any payment; there is no vested right to such payment. A report as described in § 10.414 of this part must be filed once each year to support continuing payments of compensation.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Notices and Claims for Injury, Disease, and Death—Employer's Actions</HD> <SECTION> <SECTNO>§ 10.110</SECTNO> <SUBJECT>What should the employer do when an employee files a notice of traumatic injury or occupational disease?</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) A medical charge against OWCP;</P> <P>(2) Disability for work beyond the day or shift of injury;</P> <P>(3) The need for more than two appointments for medical examination and/or treatment on separate days, leading to time loss from work;</P> <P>(4) Future disability;</P> <P>(5) Permanent impairment; or</P> <P>(6) Continuation of pay pursuant to 5 U.S.C. 8118.</P> <P>(c) The employer should not wait for submittal of supporting evidence before sending the form to OWCP.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.111</SECTNO> <SUBJECT>What should the employer do when an employee files an initial claim for compensation due to disability or permanent impairment?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="21"/>any accompanying medical report to OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 10.112</SECTNO> <SUBJECT>What should the employer do when an employee files a claim for continuing compensation due to disability?</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.113</SECTNO> <SUBJECT>What should the employer do when an employee dies from a work-related injury or disease?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence and Burden of Proof</HD> <SECTION> <SECTNO>§ 10.115</SECTNO> <SUBJECT>What evidence is needed to establish a claim?</SUBJECT> <P>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:</P> <P>(a) The claim was filed within the time limits specified by the FECA;</P> <P>(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 § 10.5(h) of this part;</P> <P>(c) The fact that an injury, disease or death occurred;</P> <P>(d) The injury, disease or death occurred while the employee was in the performance of duty; and</P> <P>(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.</P> <P>(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 §§ 10.330 through 10.333.</P> </SECTION> <SECTION> <SECTNO>§ 10.116</SECTNO> <SUBJECT>What additional evidence is needed in cases based on occupational disease?</SUBJECT> <P>(a) The employee must submit the specific detailed information described on Form CA-2 and on any checklist (Form CA-35, A-H) provided by the employer. OWCP has developed these checklists to address particular occupational diseases. The medical report <PRTPAGE P="22"/>should also include the information specified on the checklist for the particular disease claimed.</P> <P>(b) The employer should submit the specific detailed information described on Form CA-2 and on any checklist pertaining to the claimed disease.</P> </SECTION> <SECTION> <SECTNO>§ 10.117</SECTNO> <SUBJECT>What happens if, in any claim, the employer contests any of the facts as stated by the claimant?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.118</SECTNO> <SUBJECT>Does the employer participate in the claims process in any other way?</SUBJECT> <P>(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.</P> <P>(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 § 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 §§ 10.10 and 10.11).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.119</SECTNO> <SUBJECT>What action will OWCP take with respect to information submitted by the employer?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.120</SECTNO> <SUBJECT>May a claimant submit additional evidence?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.121</SECTNO> <SUBJECT>What happens if OWCP needs more evidence from the claimant?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Decisions on Entitlement to Benefits</HD> <SECTION> <SECTNO>§ 10.125</SECTNO> <SUBJECT>How does OWCP determine entitlement to benefits?</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="23"/>Appeals Board and administrative decisions of OWCP as set forth in FECA Program Memoranda.</P> </SECTION> <SECTION> <SECTNO>§ 10.126</SECTNO> <SUBJECT>What does the decision contain?</SUBJECT> <P>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.)</P> </SECTION> <SECTION> <SECTNO>§ 10.127</SECTNO> <SUBJECT>To whom is the decision sent?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Continuation of Pay</HD> <SECTION> <SECTNO>§ 10.200</SECTNO> <SUBJECT>What is continuation of pay?</SUBJECT> <P>(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.</P> <P>(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 §§ 10.200(c), 10.220, or § 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.</P> <P>(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).</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Eligibility for COP</HD> <SECTION> <SECTNO>§ 10.205</SECTNO> <SUBJECT>What conditions must be met to receive COP?</SUBJECT> <P>(a) To be eligible for COP, a person must:</P> <P>(1) Have a “traumatic injury” as defined at § 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;</P> <P>(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</P> <P>(3) Begin losing time from work due to the traumatic injury within 45 days of the injury.</P> <P>(b) OWCP may find that the employee is not entitled to COP for other reasons consistent with the statute (see § 10.220).</P> </SECTION> <SECTION> <SECTNO>§ 10.206</SECTNO> <SUBJECT>May an employee who uses leave after an injury later decide to use COP instead?</SUBJECT> <P>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:</P> <P>(a) The request must be made to the employer within one year of the date the leave was used or the date of the written approval of the claim by OWCP (if written approval is issued), whichever is later.</P> <P>(b) Where the employee is otherwise eligible, the agency shall restore leave taken in lieu of any of the 45 COP days. <PRTPAGE P="24"/>Where any of the 45 COP days remain unused, the agency shall continue pay prospectively.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.207</SECTNO> <SUBJECT>May an employee who returns to work, then stops work again due to the effects of the injury, receive COP?</SUBJECT> <P>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:</P> <P>(a) The employee completes Form CA-2a and elects to receive regular pay;</P> <P>(b) OWCP did not deny the original claim for disability;</P> <P>(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</P> <P>(d) Pay has not been continued for the entire 45 days.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibilities</HD> <SECTION> <SECTNO>§ 10.210</SECTNO> <SUBJECT>What are the employee's responsibilities in COP cases?</SUBJECT> <P>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:</P> <P>(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.</P> <P>(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.</P> <P>(c) Ensure that relevant medical evidence is submitted to OWCP, and cooperate with OWCP in developing the claim.</P> <P>(d) Ensure that the treating physician specifies work limitations and provides them to the employer and/or representatives of OWCP.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.211</SECTNO> <SUBJECT>What are the employer's responsibilities in COP cases?</SUBJECT> <P>Once the employer learns of a traumatic injury sustained by an employee, it shall:</P> <P>(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in accordance with § 10.300. Failure to do so may mean that OWCP will not uphold any termination of COP by the employer.</P> <P>(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.</P> <P>(c) Inform the employee of any decision to controvert COP and/or terminate pay, and the basis for doing so.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Calculation of COP</HD> <SECTION> <SECTNO>§ 10.215</SECTNO> <SUBJECT>How does OWCP compute the number of days of COP used?</SUBJECT> <P>COP is payable for a maximum of 45 calendar days, and every day used is counted toward this maximum. The following rules apply:</P> <P>(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);</P> <P>(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 <PRTPAGE P="25"/>beginning of the work day or shift, in which case the date of injury is charged to COP;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(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 § 10.216(b).</P> <CITA>[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.216</SECTNO> <SUBJECT>How is the pay rate for COP calculated?</SUBJECT> <P>The employer shall calculate COP using the period of time and the weekly pay rate.</P> <P>(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).</P> <P>(1) The pay rate excludes overtime pay, but includes other applicable extra pay except to the extent prohibited by law.</P> <P>(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.</P> <P>(b) The weekly pay for COP purposes is determined according to the following formulas:</P> <P>(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 (×) the number of hours worked each week (B): A × B = Weekly Pay Rate.</P> <P>(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.</P> <P>(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.</P> <CITA>[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.217</SECTNO> <SUBJECT>Is COP charged if the employee continues to work, but in a different job that pays less?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="26"/> <HD SOURCE="HED">Controversion and Termination of COP</HD> <SECTION> <SECTNO>§ 10.220</SECTNO> <SUBJECT>When is an employer not required to pay COP?</SUBJECT> <P>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:</P> <P>(a) The disability was not caused by a traumatic injury;</P> <P>(b) The employee is not a citizen of the United States or Canada;</P> <P>(c) No written claim was filed within 30 days from the date of injury;</P> <P>(d) The injury was not reported until after employment has been terminated;</P> <P>(e) The injury occurred off the employing agency's premises and was otherwise not within the performance of official duties;</P> <P>(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</P> <P>(g) Work did not stop until more than 45 days following the injury.</P> <CITA>[63 FR 65306, Nov. 25, 1998; 64 FR 12684, Mar. 12, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.221</SECTNO> <SUBJECT>How is a claim for COP controverted?</SUBJECT> <P>When the employer stops an employee's pay for one of the reasons cited in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.222</SECTNO> <SUBJECT>When may an employer terminate COP which has already begun?</SUBJECT> <P>(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:</P> <P>(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;</P> <P>(2) The medical evidence from the treating physician shows that the employee is not disabled from his or her regular position;</P> <P>(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.</P> <P>(4) The employee returns to work with no loss of pay;</P> <P>(5) The employee's period of employment expires or employment is otherwise terminated (as established prior to the date of injury);</P> <P>(6) OWCP directs the employer to stop COP; and/or</P> <P>(7) COP has been paid for 45 calendar days.</P> <P>(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.</P> <P>(c) An employer cannot otherwise stop COP unless it does so for one of the reasons found in this section or § 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.223</SECTNO> <SUBJECT>Are there other circumstances under which OWCP will not authorize payment of COP?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="27"/> <SECTNO>§ 10.224</SECTNO> <SUBJECT>What happens if OWCP finds that the employee is not entitled to COP after it has been paid?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Medical and Related Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Emergency Medical Care</HD> <SECTION> <SECTNO>§ 10.300</SECTNO> <SUBJECT>What are the basic rules for authorizing emergency medical care?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 10.825(b).</P> </SECTION> <SECTION> <SECTNO>§ 10.301</SECTNO> <SUBJECT>May the physician designated on Form CA-16 refer the employee to another medical specialist or medical facility?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.302</SECTNO> <SUBJECT>Should the employer authorize medical care if he or she doubts that the injury occurred, or that it is work-related?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.303</SECTNO> <SUBJECT>Should the employer use a Form CA-16 to authorize medical testing when an employee is exposed to a workplace hazard just once?</SUBJECT> <P>(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 § 10.313).<PRTPAGE P="28"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.304</SECTNO> <SUBJECT>Are there any exceptions to these procedures for obtaining medical care?</SUBJECT> <P>In cases involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Treatment and Related Issues</HD> <SECTION> <SECTNO>§ 10.310</SECTNO> <SUBJECT>What are the basic rules for obtaining medical care?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.311</SECTNO> <SUBJECT>What are the special rules for the services of chiropractors?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) A chiropractor may also provide services in the nature of physical therapy under the direction of a qualified physician.</P> </SECTION> <SECTION> <SECTNO>§ 10.312</SECTNO> <SUBJECT>What are the special rules for the services of clinical psychologists?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.313</SECTNO> <SUBJECT>Will OWCP pay for preventive treatment?</SUBJECT> <P>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 <PRTPAGE P="29"/>(see § 10.303). However, OWCP can authorize treatment for the following conditions, even though such treatment is designed, in part, to prevent further injury:</P> <P>(a) Complications of preventive measures which are provided or sponsored by the agency, such as an adverse reaction to prophylactic immunization.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.314</SECTNO> <SUBJECT>Will OWCP pay for the services of an attendant?</SUBJECT> <P>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 § 10.801. This decision is based on the following factors:</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.315</SECTNO> <SUBJECT>Will OWCP pay for transportation to obtain medical treatment?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.316</SECTNO> <SUBJECT>After selecting a treating physician, may an employee choose to be treated by another physician instead?</SUBJECT> <P>(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 <PRTPAGE P="30"/>reasons for desiring a change of physician.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Directed Medical Examinations</HD> <SECTION> <SECTNO>§ 10.320</SECTNO> <SUBJECT>Can OWCP require an employee to be examined by another physician?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.321</SECTNO> <SUBJECT>What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?</SUBJECT> <P>(a) If one medical opinion holds more probative value, OWCP will base its determination of entitlement on that medical conclusion (see § 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 (<E T="03">see James P. Roberts, 31 ECAB 1010 (1980)</E>).</P> <P>(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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.322</SECTNO> <SUBJECT>Who pays for second opinion and referee examinations?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.323</SECTNO> <SUBJECT>What are the penalties for failing to report for or obstructing a second opinion or referee examination?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.324</SECTNO> <SUBJECT>May an employer require an employee to undergo a physical examination in connection with a work-related injury?</SUBJECT> <P>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 <PRTPAGE P="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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Reports</HD> <SECTION> <SECTNO>§ 10.330</SECTNO> <SUBJECT>What are the requirements for medical reports?</SUBJECT> <P>In all cases reported to OWCP, a medical report from the attending physician is required. This report should include:</P> <P>(a) Dates of examination and treatment;</P> <P>(b) History given by the employee;</P> <P>(c) Physical findings;</P> <P>(d) Results of diagnostic tests;</P> <P>(e) Diagnosis;</P> <P>(f) Course of treatment;</P> <P>(g) A description of any other conditions found but not due to the claimed injury;</P> <P>(h) The treatment given or recommended for the claimed injury;</P> <P>(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;</P> <P>(j) The extent of disability affecting the employee's ability to work due to the injury;</P> <P>(k) The prognosis for recovery; and</P> <P>(l) All other material findings.</P> </SECTION> <SECTION> <SECTNO>§ 10.331</SECTNO> <SUBJECT>How and when should the medical report be submitted?</SUBJECT> <P>(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.</P> <P>(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 § 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.</P> <CITA>[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.332</SECTNO> <SUBJECT>What additional medical information will OWCP require to support continuing payment of benefits?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.333</SECTNO> <SUBJECT>What additional medical information will OWCP require to support a claim for a schedule award?</SUBJECT> <P>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 <E T="03">Guides to the Evaluation of Permanent Impairment.</E> 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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Bills</HD> <SECTION> <SECTNO>§ 10.335</SECTNO> <SUBJECT>How are medical bills submitted?</SUBJECT> <P>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 § 10.802.</P> </SECTION> <SECTION> <PRTPAGE P="32"/> <SECTNO>§ 10.336</SECTNO> <SUBJECT>What are the time frames for submitting bills?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.337</SECTNO> <SUBJECT>If OWCP reimburses an employee only partially for a medical expense, must the provider refund the balance of the amount paid to the employee?</SUBJECT> <P>(a) The OWCP fee schedule sets maximum limits on the amounts payable for many services (see § 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.</P> <P>(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 § 10.812.</P> <P>(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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Compensation and Related Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Compensation for Disability and Impairment</HD> <SECTION> <SECTNO>§ 10.400</SECTNO> <SUBJECT>What is total disability?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.401</SECTNO> <SUBJECT>When and how is compensation for total disability paid?</SUBJECT> <P>(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.</P> <P>(b) Compensation for total disability is payable at the rate of 66<FR>2/3</FR> 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).)</P> </SECTION> <SECTION> <SECTNO>§ 10.402</SECTNO> <SUBJECT>What is partial disability?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.403</SECTNO> <SUBJECT>When and how is compensation for partial disability paid?</SUBJECT> <P>(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 §§ 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, <PRTPAGE P="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.</P> <P>(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<FR>2/3</FR> percent of this difference if the employee has no dependents, or 75 percent of this difference if the employee has at least one dependent.</P> <P>(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 § 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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.404</SECTNO> <SUBJECT>When and how is compensation for a schedule impairment paid?</SUBJECT> <P>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 <E T="03">Guides to the Evaluation of Permanent Impairment</E>.</P> <P>(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:</P> <GPOTABLE CDEF="s50,8" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Member</CHED> <CHED H="1">Weeks</CHED> </BOXHD> <ROW> <ENT I="01">Breast (one)</ENT> <ENT>52</ENT> </ROW> <ROW> <ENT I="01">Kidney (one)</ENT> <ENT>156</ENT> </ROW> <ROW> <ENT I="01">Larynx</ENT> <ENT>160</ENT> </ROW> <ROW> <ENT I="01">Lung (one)</ENT> <ENT>156</ENT> </ROW> <ROW> <ENT I="01">Penis</ENT> <ENT>205</ENT> </ROW> <ROW> <ENT I="01">Testicle (one)</ENT> <ENT>52</ENT> </ROW> <ROW> <ENT I="01">Tongue</ENT> <ENT>160</ENT> </ROW> <ROW> <ENT I="01">Ovary (one)</ENT> <ENT>52</ENT> </ROW> <ROW> <ENT I="01">Uterus/cervix and vulva/vagina</ENT> <ENT>205</ENT> </ROW> </GPOTABLE> <P>(b) Compensation for schedule awards is payable at 66<FR>2/3</FR> percent of the employee's pay, or 75 percent of the pay when the employee has at least one dependent.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="34"/> <SECTNO>§ 10.405</SECTNO> <SUBJECT>Who is considered a dependent in a claim based on disability or impairment?</SUBJECT> <P>(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.</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 10.406</SECTNO> <SUBJECT>What are the maximum and minimum rates of compensation in disability cases?</SUBJECT> <P>(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).</P> <P>(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.)</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Compensation for Death</HD> <SECTION> <SECTNO>§ 10.410</SECTNO> <SUBJECT>Who is entitled to compensation in case of death, and what are the rates of compensation payable in death cases?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="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.</P> <P>(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 § 10.417 of these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 10.411</SECTNO> <SUBJECT>What are the maximum and minimum rates of compensation in death cases?</SUBJECT> <P>(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).</P> <P>(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.)</P> </SECTION> <SECTION> <SECTNO>§ 10.412</SECTNO> <SUBJECT>Will OWCP pay the costs of burial and transportation of the remains?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.413</SECTNO> <SUBJECT>If a person dies while receiving a schedule award, to whom is the balance of the schedule award payable?</SUBJECT> <P>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:</P> <P>(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;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.414</SECTNO> <SUBJECT>What reports of dependents are needed in death cases?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.415</SECTNO> <SUBJECT>What must a beneficiary do if the number of beneficiaries decreases?</SUBJECT> <P>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 <PRTPAGE P="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.</P> </SECTION> <SECTION> <SECTNO>§ 10.416</SECTNO> <SUBJECT>How does a change in the number of beneficiaries affect the amount of compensation paid to the other beneficiaries?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.417</SECTNO> <SUBJECT>What reports are needed when compensation payments continue for children over age 18?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Adjustments to Compensation</HD> <SECTION> <SECTNO>§ 10.420</SECTNO> <SUBJECT>How are cost-of-living adjustments applied?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.421</SECTNO> <SUBJECT>May a beneficiary receive other kinds of payments from the Federal Government concurrently with compensation?</SUBJECT> <P>(a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive wage-loss <PRTPAGE P="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.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.422</SECTNO> <SUBJECT>May compensation payments be issued in a lump sum?</SUBJECT> <P>(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:</P> <P>(1) The purpose of the FECA, which is to replace lost wages;</P> <P>(2) The prudence of providing wage-loss benefits on a regular, recurring basis; and</P> <P>(3) The high cost of the long-term borrowing that is needed to pay out large lump sums.</P> <P>(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.</P> <P>(c) Lump-sum payments to surviving spouses are addressed in 5 U.S.C. 8135(b).</P> </SECTION> <SECTION> <SECTNO>§ 10.423</SECTNO> <SUBJECT>May compensation payments be assigned to, or attached by, creditors?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="38"/> <SECTNO>§ 10.424</SECTNO> <SUBJECT>May someone other than the beneficiary be designated to receive compensation payments?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.425</SECTNO> <SUBJECT>May compensation be claimed for periods of restorable leave?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Overpayments</HD> <SECTION> <SECTNO>§ 10.430</SECTNO> <SUBJECT>How does OWCP notify an individual of a payment made?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.431</SECTNO> <SUBJECT>What does OWCP do when an overpayment is identified?</SUBJECT> <P>Before seeking to recover an overpayment or adjust benefits, OWCP will advise the beneficiary in writing that:</P> <P>(a) The overpayment exists, and the amount of overpayment;</P> <P>(b) A preliminary finding shows either that the individual was or was not at fault in the creation of the overpayment;</P> <P>(c) He or she has the right to inspect and copy Government records relating to the overpayment; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.432</SECTNO> <SUBJECT>How can an individual present evidence to OWCP in response to a preliminary notice of an overpayment?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.433</SECTNO> <SUBJECT>Under what circumstances can OWCP waive recovery of an overpayment?</SUBJECT> <P>(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:</P> <P>(1) Made an incorrect statement as to a material fact which he or she knew or should have known to be incorrect; or<PRTPAGE P="39"/> </P> <P>(2) Failed to provide information which he or she knew or should have known to be material; or</P> <P>(3) Accepted a payment which he or she knew or should have known to be incorrect. (This provision applies only to the overpaid individual.)</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.434</SECTNO> <SUBJECT>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?</SUBJECT> <P>If OWCP finds that the recipient of an overpayment was not at fault, repayment will still be required unless:</P> <P>(a) Adjustment or recovery of the overpayment would defeat the purpose of the FECA (see § 10.436), or</P> <P>(b) Adjustment or recovery of the overpayment would be against equity and good conscience (see § 10.437).</P> </SECTION> <SECTION> <SECTNO>§ 10.435</SECTNO> <SUBJECT>Is an individual responsible for an overpayment that resulted from an error made by OWCP or another Government agency?</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(2) OWCP erred in calculating cost-of-living increases, schedule award length and/or percentage of impairment, or loss of wage-earning capacity.</P> </SECTION> <SECTION> <SECTNO>§ 10.436</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment defeat the purpose of the FECA?</SUBJECT> <P>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:</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.437</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment be against equity and good conscience?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="40"/>but for the receipt of benefits, and that this decision resulted in a loss.</P> </SECTION> <SECTION> <SECTNO>§ 10.438</SECTNO> <SUBJECT>Can OWCP require the individual who received the overpayment to submit additional financial information?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.439</SECTNO> <SUBJECT>What is addressed at a pre-recoupment hearing?</SUBJECT> <P>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 § 10.615 through § 10.622.</P> </SECTION> <SECTION> <SECTNO>§ 10.440</SECTNO> <SUBJECT>How does OWCP communicate its final decision concerning recovery of an overpayment, and what appeal right accompanies it?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.441</SECTNO> <SUBJECT>How are overpayments collected?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Continuing Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Rules and Evidence</HD> <SECTION> <SECTNO>§ 10.500</SECTNO> <SUBJECT>What are the basic rules governing continuing receipt of compensation benefits and return to work?</SUBJECT> <P>(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.</P> <P>(b) Each disabled employee is obligated to perform such work as he or <PRTPAGE P="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 § 10.508 with respect to the payment of relocation expenses.)</P> </SECTION> <SECTION> <SECTNO>§ 10.501</SECTNO> <SUBJECT>What medical evidence is necessary to support continuing receipt of compensation benefits?</SUBJECT> <P>(a) The employee is responsible for providing sufficient medical evidence to justify payment of any compensation sought.</P> <P>(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.</P> <P>(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 § 10.330 for a fuller discussion of medical evidence.</P> <P>(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 §§ 10.320 and 10.321).</P> </SECTION> <SECTION> <SECTNO>§ 10.502</SECTNO> <SUBJECT>How does OWCP evaluate evidence in support of continuing receipt of compensation benefits?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.503</SECTNO> <SUBJECT>Under what circumstances may OWCP reduce or terminate compensation benefits?</SUBJECT> <P>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:</P> <P>(a) The disability for which compensation was paid has ceased;</P> <P>(b) The disabling condition is no longer causally related to the employment;</P> <P>(c) The employee is only partially disabled;</P> <P>(d) The employee has returned to work;</P> <P>(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</P> <P>(f) OWCP's initial decision was in error.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="42"/> <HD SOURCE="HED">Return to Work—Employer's Responsibilities</HD> <SECTION> <SECTNO>§ 10.505</SECTNO> <SUBJECT>What actions must the employer take?</SUBJECT> <P>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 § 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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.506</SECTNO> <SUBJECT>May the employer monitor the employee's medical care?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.507</SECTNO> <SUBJECT>How should the employer make an offer of suitable work?</SUBJECT> <P>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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.508</SECTNO> <SUBJECT>May relocation expenses be paid for an employee who would need to move to accept an offer of reemployment?</SUBJECT> <P>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 <PRTPAGE P="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.</P> </SECTION> <SECTION> <SECTNO>§ 10.509</SECTNO> <SUBJECT>If an employee's light-duty job is eliminated due to downsizing, what is the effect on compensation?</SUBJECT> <P>(a) In general, an employee will not be considered to have experienced a compensable recurrence of disability as defined in § 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.</P> <P>(b) For the purposes of this section only, a <E T="03">light-duty position</E> 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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Return to Work—Employee's Responsibilities</HD> <SECTION> <SECTNO>§ 10.515</SECTNO> <SUBJECT>What actions must the employee take with respect to returning to work?</SUBJECT> <P>(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.</P> <P>(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 § 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="44"/> <SECTNO>§ 10.516</SECTNO> <SUBJECT>How will an employee know if OWCP considers a job to be suitable?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.517</SECTNO> <SUBJECT>What are the penalties for refusing to accept a suitable job offer?</SUBJECT> <P>(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.</P> <P>(b) After providing the two notices described in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.518</SECTNO> <SUBJECT>Does OWCP provide services to help employees return to work?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.519</SECTNO> <SUBJECT>What action will OWCP take if an employee refuses to undergo vocational rehabilitation?</SUBJECT> <P>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:</P> <P>(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.</P> <P>(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, <PRTPAGE P="45"/>counseling, functional capacity evaluations, and work evaluations), OWCP cannot determine what would have been the employee's wage-earning capacity.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.520</SECTNO> <SUBJECT>How does OWCP determine compensation after an employee completes a vocational rehabilitation program?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports of Earnings From Employment and Self-Employment</HD> <SECTION> <SECTNO>§ 10.525</SECTNO> <SUBJECT>What information must the employee report?</SUBJECT> <P>(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 § 10.5(g) for a definition of “earnings”.)</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.526</SECTNO> <SUBJECT>Must the employee report volunteer activities?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.527</SECTNO> <SUBJECT>Does OWCP verify reports of earnings?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.528</SECTNO> <SUBJECT>What action will OWCP take if the employee fails to file a report of activity indicating an ability to work?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="46"/> <SECTNO>§ 10.529</SECTNO> <SUBJECT>What action will OWCP take if the employee files an incomplete report?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports of Dependents</HD> <SECTION> <SECTNO>§ 10.535</SECTNO> <SUBJECT>How are dependents defined, and what information must the employee report?</SUBJECT> <P>(a) Dependents in disability cases are defined in § 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 § 10.414.)</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.536</SECTNO> <SUBJECT>What is the penalty for failing to submit a report of dependents?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.537</SECTNO> <SUBJECT>What reports are needed when compensation payments continue for children over age 18?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reduction and Termination of Compensation</HD> <SECTION> <SECTNO>§ 10.540</SECTNO> <SUBJECT>When and how is compensation reduced or terminated?</SUBJECT> <P>(a) Except as provided in paragraphs (b) and (c) of this section, where the <PRTPAGE P="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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.541</SECTNO> <SUBJECT>What action will OWCP take after issuing written notice of its intention to reduce or terminate compensation?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Appeals Process</HD> <SECTION> <SECTNO>§ 10.600</SECTNO> <SUBJECT>How can final decisions of OWCP be reviewed?</SUBJECT> <P>There are three methods for reviewing a formal decision of the OWCP (§§ 10.125-10.127 discuss how decisions are made). These methods are: reconsideration by the district office; a hearing before an OWCP hearing representative; and appeal to the Employees' Compensation Appeals Board (ECAB). For each method there are time limitations and other restrictions which may apply, and not all options are available for all decisions, so the employee should consult the requirements set forth below. Further rules governing appeals to the ECAB are found at part 501 of this title.</P> </SECTION> <SUBJGRP> <PRTPAGE P="48"/> <HD SOURCE="HED">Reconsiderations and Reviews by the Director</HD> <SECTION> <SECTNO>§ 10.605</SECTNO> <SUBJECT>What is reconsideration?</SUBJECT> <P>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.”</P> </SECTION> <SECTION> <SECTNO>§ 10.606</SECTNO> <SUBJECT>How does a claimant request reconsideration?</SUBJECT> <P>(a) An employee (or representative) seeking reconsideration should send the application for reconsideration to the address as instructed by OWCP in the final decision.</P> <P>(b) The application for reconsideration, including all supporting documents, must:</P> <P>(1) Be submitted in writing;</P> <P>(2) Set forth arguments and contain evidence that either:</P> <P>(i) Shows that OWCP erroneously applied or interpreted a specific point of law;</P> <P>(ii) Advances a relevant legal argument not previously considered by OWCP; or</P> <P>(iii) Constitutes relevant and pertinent new evidence not previously considered by OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 10.607</SECTNO> <SUBJECT>What is the time limit for requesting reconsideration?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.608</SECTNO> <SUBJECT>How does OWCP decide whether to grant or deny the request for reconsideration?</SUBJECT> <P>(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 § 10.606(b)(2). If reconsideration is granted, the case is reopened and the case is reviewed on its merits (see § 10.609).</P> <P>(b) Where the request is timely but fails to meet at least one of the standards described in § 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 § 10.625), and OWCP will not entertain a request for reconsideration or a hearing on this decision denying reconsideration.</P> </SECTION> <SECTION> <SECTNO>§ 10.609</SECTNO> <SUBJECT>How does OWCP decide whether new evidence requires modification of the prior decision?</SUBJECT> <P>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.</P> <P>(a) After OWCP decides to grant reconsideration, but before undertaking the review, OWCP will send a copy of the reconsideration application to the employer, which will have 20 days from the date sent to comment or submit <PRTPAGE P="49"/>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.610</SECTNO> <SUBJECT>What is a review by the Director?</SUBJECT> <P>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings</HD> <SECTION> <SECTNO>§ 10.615</SECTNO> <SUBJECT>What is a hearing?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.616</SECTNO> <SUBJECT>How does a claimant obtain a hearing?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.617</SECTNO> <SUBJECT>How is an oral hearing conducted?</SUBJECT> <P>(a) The hearing representative retains complete discretion to set the <PRTPAGE P="50"/>time and place of the hearing, including the amount of time allotted for the hearing, considering the issues to be resolved.</P> <P>(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.</P> <P>(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.</P> <P>(d) Testimony at oral hearings is recorded, then transcribed and placed in the record. Oral testimony shall be made under oath.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.618</SECTNO> <SUBJECT>How is a review of the written record conducted?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.619</SECTNO> <SUBJECT>May subpoenas be issued for witnesses and documents?</SUBJECT> <P>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.</P> <P>(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:</P> <P>(1) Submit the request in writing and send it to the hearing representative as early as possible but no later than 60 days (as evidenced by postmark, electronic marker or other objective date <PRTPAGE P="51"/>mark) after the date of the original hearing request.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.620</SECTNO> <SUBJECT>Who pays the costs associated with subpoenas?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.621</SECTNO> <SUBJECT>What is the employer's role when an oral hearing has been requested?</SUBJECT> <P>(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.</P> <P>(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 § 10.617(e).</P> </SECTION> <SECTION> <SECTNO>§ 10.622</SECTNO> <SUBJECT>May a claimant withdraw a request for or postpone a hearing?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Where the claimant is hospitalized for a reason which is not elective, or where the death of the claimant's <PRTPAGE P="52"/>parent, spouse, or child prevents attendance at the hearing, a postponement may be granted upon proper documentation.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review by the Employees' Compensation Appeals Board (ECAB)</HD> <SECTION> <SECTNO>§ 10.625</SECTNO> <SUBJECT>What kinds of decisions may be appealed?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.626</SECTNO> <SUBJECT>Who has jurisdiction of cases on appeal to the ECAB?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Special Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Representation</HD> <SECTION> <SECTNO>§ 10.700</SECTNO> <SUBJECT>May a claimant designate a representative?</SUBJECT> <P>(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.</P> <P>(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 § 10.701).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.701</SECTNO> <SUBJECT>Who may serve as a representative?</SUBJECT> <P>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:</P> <P>(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</P> <P>(b) While acting as a union representative, defined as any officially sanctioned union official, and no fee or gratuity is charged.</P> </SECTION> <SECTION> <SECTNO>§ 10.702</SECTNO> <SUBJECT>How are fees for services paid?</SUBJECT> <P>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.</P> <P>Administrative costs (mailing, copying, messenger services, travel and the <PRTPAGE P="53"/>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.)</P> </SECTION> <SECTION> <SECTNO>§ 10.703</SECTNO> <SUBJECT>How are fee applications approved?</SUBJECT> <P>(a) <E T="03">Fee Application.</E> (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:</P> <P>(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).</P> <P>(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.</P> <P>(2) An incomplete application will be returned with no further comment.</P> <P>(b) <E T="03">Approval where there is no dispute.</E> 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.</P> <P>(c) <E T="03">Disputed requests.</E> (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:</P> <P>(i) Usefulness of the representative's services;</P> <P>(ii) The nature and complexity of the claim;</P> <P>(iii) The actual time spent on development and presentation of the claim; and</P> <P>(iv) Customary local charges for similar services.</P> <P>(2) Where the claimant disputes the representative's request and files an objection with OWCP, an appealable decision will be issued.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Third Party Liability</HD> <SECTION> <SECTNO>§ 10.705</SECTNO> <SUBJECT>When must an employee or other FECA beneficiary take action against a third party?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.706</SECTNO> <SUBJECT>How will a beneficiary know if OWCP or SOL has determined that action against a third party is required?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.707</SECTNO> <SUBJECT>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”?</SUBJECT> <P>At a minimum, a FECA beneficiary must do the following:</P> <P>(a) Seek damages for the injury or death from the third party, either through an attorney or on his or her own behalf;<PRTPAGE P="54"/> </P> <P>(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;</P> <P>(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 § 10.714, without receiving permission from OWCP or SOL;</P> <P>(d) Provide periodic status updates and other relevant information in response to requests from OWCP or SOL;</P> <P>(e) Submit detailed information about the amount recovered and the costs of the suit on a “Statement of Recovery” form approved by OWCP; and</P> <P>(f) Pay any required refund.</P> </SECTION> <SECTION> <SECTNO>§ 10.708</SECTNO> <SUBJECT>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?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.709</SECTNO> <SUBJECT>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?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.710</SECTNO> <SUBJECT>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?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.711</SECTNO> <SUBJECT>How much of any settlement or judgment must be paid to the United States?</SUBJECT> <P>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 § 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.</P> <P>(a) The refund to the United States is calculated as follows, using the Statement of Recovery form approved by OWCP:</P> <P>(1) Determine the gross recovery as set forth in § 10.712;<PRTPAGE P="55"/> </P> <P>(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);</P> <P>(3) Subtract the costs of litigation, as allowed by OWCP or SOL (Subtotal B);</P> <P>(4) Subtract one fifth of Subtotal B from Subtotal B (Subtotal C);</P> <P>(5) Compare Subtotal C and the refundable disbursements as defined in § 10.714. Subtotal D is the lower of the two amounts.</P> <P>(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.</P> <P>(b) The credit against future benefits (also referred to as the surplus) is calculated as follows:</P> <P>(1) If Subtotal C, as calculated according to paragraph (a)(4) of this section, is less than the refundable disbursements, as defined in § 10.714, there is no credit to be applied against future benefits;</P> <P>(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.</P> <P>(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.</P> <GPOTABLE CDEF="s100,8" COLS="2" OPTS="L0"> <ROW> <ENT I="01">(1) Gross recovery</ENT> <ENT>$100,000</ENT> </ROW> <ROW RUL="n,s"> <ENT I="03">Attorney's fees</ENT> <ENT>−25,000</ENT> </ROW> <ROW> <ENT I="01">(2) Subtotal A</ENT> <ENT>75,000</ENT> </ROW> <ROW RUL="n,s"> <ENT I="01">(3) Costs of suit</ENT> <ENT>−3,000</ENT> </ROW> <ROW> <ENT I="02">Subtotal B</ENT> <ENT>72,000</ENT> </ROW> <ROW RUL="n,s"> <ENT I="02">One-fifth of Subtotal B</ENT> <ENT>−14,400</ENT> </ROW> <ROW> <ENT I="01">(4) Subtotal C</ENT> <ENT>57,600</ENT> </ROW> <ROW> <ENT I="02">Refundable Disbursements</ENT> <ENT>22,000</ENT> </ROW> <ROW> <ENT I="01">(5) Subtotal D (lower of Subtotal C or refundable disbursements)</ENT> <ENT>22,000</ENT> </ROW> <ROW RUL="n,s"> <ENT I="01">(6) Government's allowance for attorney's fees [25,000 / 100,000) × 22,000] (attorney's fees divided by gross recovery then multiplied by Subtotal D)</ENT> <ENT>−5,500</ENT> </ROW> <ROW> <ENT I="02">Refund to the United States</ENT> <ENT>16,500</ENT> </ROW> <ROW> <ENT I="01">(7) Credit against future benefits [57,600 − 22,000] (Subtotal C minus refundable disbursements)</ENT> <ENT>35,600</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 10.712</SECTNO> <SUBJECT>What amounts are included in the gross recovery?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.713</SECTNO> <SUBJECT>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?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="56"/> <SECTNO>§ 10.714</SECTNO> <SUBJECT>What amounts are included in the refundable disbursements?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.715</SECTNO> <SUBJECT>Is a beneficiary required to pay interest on the amount of the refund due to the United States?</SUBJECT> <P>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 <E T="04">Federal Register</E> (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.</P> </SECTION> <SECTION> <SECTNO>§ 10.716</SECTNO> <SUBJECT>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?</SUBJECT> <P>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 §§ 10.432 through 10.440 do not apply to such determinations.</P> </SECTION> <SECTION> <SECTNO>§ 10.717</SECTNO> <SUBJECT>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?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.718</SECTNO> <SUBJECT>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?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.719</SECTNO> <SUBJECT>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?</SUBJECT> <P>(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.</P> <P>(b) If an injury covered under the FECA is caused under circumstances creating a legal liability in more than one person, other than the United States, to pay damages, OWCP or SOL will determine whether recoveries received from one or more third parties <PRTPAGE P="57"/>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Federal Grand and Petit Jurors</HD> <SECTION> <SECTNO>§ 10.725</SECTNO> <SUBJECT>When is a Federal grand or petit juror covered under the FECA?</SUBJECT> <P>(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:</P> <P>(1) In attendance at court pursuant to a summons;</P> <P>(2) In deliberation;</P> <P>(3) Sequestered by order of a judge; or</P> <P>(4) At a site, by order of the court, for the taking of a view.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.726</SECTNO> <SUBJECT>When does a juror's entitlement to disability compensation begin?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.727</SECTNO> <SUBJECT>What is the pay rate of jurors for compensation purposes?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Peace Corps Volunteers</HD> <SECTION> <SECTNO>§ 10.730</SECTNO> <SUBJECT>What are the conditions of coverage for Peace Corps volunteers and volunteer leaders injured while serving outside the United States?</SUBJECT> <P>(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:</P> <P>(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</P> <P>(2) The illness is shown to have pre-existed the period of service abroad; or</P> <P>(3) The injury or illness claimed is a manifestation of symptoms of, or consequent to, a pre-existing congenital defect or abnormality.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.731</SECTNO> <SUBJECT>What is the pay rate of Peace Corps volunteers and volunteer leaders for compensation purposes?</SUBJECT> <P>The pay rate for these claimants is defined as the pay rate in effect on the date following separation, provided <PRTPAGE P="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).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Non-Federal Law Enforcement Officers</HD> <SECTION> <SECTNO>§ 10.735</SECTNO> <SUBJECT>When is a non-Federal law enforcement officer (LEO) covered under the FECA?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.736</SECTNO> <SUBJECT>What are the time limits for filing a LEO claim?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.737</SECTNO> <SUBJECT>How is a LEO claim filed, and who can file a LEO claim?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.738</SECTNO> <SUBJECT>Under what circumstances are benefits payable in LEO claims?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.739</SECTNO> <SUBJECT>What kind of objective evidence of a potential Federal crime must exist for coverage to be extended?</SUBJECT> <P>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 <PRTPAGE P="59"/>evidence that the officer was in fact engaged in actual or attempted apprehension of a Federal criminal or prevention of a Federal crime.</P> </SECTION> <SECTION> <SECTNO>§ 10.740</SECTNO> <SUBJECT>In what situations will OWCP automatically presume that a law enforcement officer is covered by the FECA?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.741</SECTNO> <SUBJECT>How are benefits calculated in LEO claims?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Information for Medical Providers</HD> <SUBJGRP> <HD SOURCE="HED">Medical Records and Bills</HD> <SECTION> <SECTNO>§ 10.800</SECTNO> <SUBJECT>What kind of medical records must providers keep?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.801</SECTNO> <SUBJECT>How are medical bills to be submitted?</SUBJECT> <P>(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 § 10.800. The physician or provider shall itemize the charges on the standard Health Insurance Claim Form, HCFA 1500 or <PRTPAGE P="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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(3) Nursing homes shall itemize charges for appliances, supplies or services on the provider's billhead stationery and submit them promptly to OWCP.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.802</SECTNO> <SUBJECT>How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?</SUBJECT> <P>(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 § 10.800, to OWCP for consideration.</P> <P>(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.<PRTPAGE P="61"/> </P> <P>(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.</P> <P>(b) If services were provided by a hospital, pharmacy or nursing home, the employee should submit the bill in accordance with the provisions of § 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.</P> <P>(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.</P> <P>(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 § 10.805.</P> <P>(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 § 10.812.</P> <P>(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 § 10.815.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.803</SECTNO> <SUBJECT>What are the time limitations on OWCP's payment of bills?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Fee Schedule</HD> <SECTION> <SECTNO>§ 10.805</SECTNO> <SUBJECT>What services are covered by the OWCP fee schedule?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="62"/> <SECTNO>§ 10.806</SECTNO> <SUBJECT>How are the maximum fees defined?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.807</SECTNO> <SUBJECT>How are payments for particular services calculated?</SUBJECT> <P>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.</P> <P>(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).</P> <P>(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.</P> <P>(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: </P> <FP SOURCE="FP-1">[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] × $61.20</FP> <FP SOURCE="FP-1">[2.45 + 3.44 + .56] × $61.20</FP> <FP SOURCE="FP-1">6.45 × $61.20 = $394.74</FP> </SECTION> <SECTION> <SECTNO>§ 10.808</SECTNO> <SUBJECT>Does the fee schedule apply to every kind of procedure?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 10.809</SECTNO> <SUBJECT>How are payments for medicinal drugs determined?</SUBJECT> <P>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.</P> <P>(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.<PRTPAGE P="63"/> </P> <P>(b) The NDCs, the average wholesale prices, and the dispensing fee shall be reviewed from time to time and updated as necessary.</P> </SECTION> <SECTION> <SECTNO>§ 10.810</SECTNO> <SUBJECT>How are payments for inpatient medical services determined?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(3) OWCP will base payments to facilities excluded from HCFA's PPS on consideration of detailed medical reports and other evidence.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.811</SECTNO> <SUBJECT>When and how are fees reduced?</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.812</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider request reconsideration of the reduction?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="64"/>at <E T="03">www.dol.gov./dol/esa/owcp.htm.</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.813</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider bill the claimant for the balance?</SUBJECT> <P>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.</P> <P>(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 § 10.815(d).</P> <P>(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 § 10.815(h).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Exclusion of Providers</HD> <SECTION> <SECTNO>§ 10.815</SECTNO> <SUBJECT>What are the grounds for excluding a provider from payment under the FECA?</SUBJECT> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(e) Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this subpart and paid for by OWCP;</P> <P>(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 § 10.800;</P> <P>(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<PRTPAGE P="65"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.816</SECTNO> <SUBJECT>What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?</SUBJECT> <P>(a) OWCP shall automatically exclude a physician, hospital, or provider of medical services or supplies who has been convicted of a crime described in § 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 § 10.815(b).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.817</SECTNO> <SUBJECT>When are OWCP's exclusion procedures initiated?</SUBJECT> <P>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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 10.818</SECTNO> <SUBJECT>How is a provider notified of OWCP's intent to exclude him or her?</SUBJECT> <P>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:</P> <P>(a) A concise statement of the grounds upon which exclusion shall be based;</P> <P>(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;</P> <P>(c) An invitation to the provider to:</P> <P>(1) Resign voluntarily from participation in the FECA program without admitting or denying the allegations presented in the letter; or</P> <P>(2) Request that the decision on exclusion be based upon the existing record and any additional documentary information the provider may wish to furnish;</P> <P>(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;</P> <P>(e) A notice that should the provider fail to answer (as described in § 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</P> <P>(f) The name and address of the OWCP representative who shall be responsible for receiving the answer from the provider.</P> </SECTION> <SECTION> <SECTNO>§ 10.819</SECTNO> <SUBJECT>What requirements must the provider's reply and OWCP's decision meet?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) By arrangement with the official representative, the provider may inspect or request copies of information <PRTPAGE P="66"/>in the record at any time prior to the Regional Director's decision.</P> <P>(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 § 10.820. The filing of a request for a hearing within the time specified shall stay the effectiveness of the decision to exclude.</P> </SECTION> <SECTION> <SECTNO>§ 10.820</SECTNO> <SUBJECT>How can an excluded provider request a hearing?</SUBJECT> <P>A request for a hearing shall be sent to the official representative named under § 10.818(f) and shall contain:</P> <P>(a) A concise notice of the issues on which the provider desires to give evidence at the hearing;</P> <P>(b) Any request for a more definite statement by OWCP;</P> <P>(c) Any request for the presentation of oral argument or evidence; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.821</SECTNO> <SUBJECT>How are hearings assigned and scheduled?</SUBJECT> <P>(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:</P> <P>(1) A ruling on each item raised in the request for hearing;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.822</SECTNO> <SUBJECT>How are subpoenas or advisory opinions obtained?</SUBJECT> <P>(a) The provider may apply to the administrative law judge for the issuance of subpoenas upon a showing of good cause therefor.</P> <P>(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:</P> <P>(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;</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.823</SECTNO> <SUBJECT>How will the administrative law judge conduct the hearing and issue the recommended decision?</SUBJECT> <P>(a) To the extent appropriate, proceedings before the administrative law <PRTPAGE P="67"/>judge shall be governed by 29 CFR part 18.</P> <P>(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.</P> <P>(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.</P> <P>(d) Pursuant to 5 U.S.C. 8126, the administrative law judge may:</P> <P>(1) Issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles;</P> <P>(2) Administer oaths;</P> <P>(3) Examine witnesses; and</P> <P>(4) Require the production of books, papers, documents, and other evidence with respect to the proceedings.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.824</SECTNO> <SUBJECT>How can a party request review by the Director of the administrative law judge's recommended decision?</SUBJECT> <P>(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.</P> <P>(b) Review by the Director shall not be a matter of right but of the sound discretion of the Director.</P> <P>(c) Petitions for discretionary review shall be filed only upon one or more of the following grounds:</P> <P>(1) A finding or conclusion of material fact is not supported by substantial evidence;</P> <P>(2) A necessary legal conclusion is erroneous;</P> <P>(3) The decision is contrary to law or to the duly promulgated rules or decisions of the Director;</P> <P>(4) A substantial question of law, policy, or discretion is involved; or</P> <P>(5) A prejudicial error of procedure was committed.</P> <P>(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.</P> <P>(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.</P> <P>(f) If a petition is granted, review shall be limited to the questions raised by the petition.</P> <P>(g) A petition not granted within 20 days after receipt of the petition is deemed denied.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.825</SECTNO> <SUBJECT>What are the effects of exclusion?</SUBJECT> <P>(a) OWCP shall give notice of the exclusion of a physician, hospital or provider of medical services or supplies to:</P> <P>(1) All OWCP district offices;</P> <P>(2) All Federal employers;</P> <P>(3) The HCFA;</P> <P>(4) The State or local authority responsible for licensing or certifying the excluded party; and</P> <P>(5) All employees who are known to have had treatment, services or supplies from the excluded provider within <PRTPAGE P="68"/>the six-month period immediately preceding the order of exclusion.</P> <P>(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:</P> <P>(1) Such treatment, service or supply was rendered in an emergency by an excluded physician; or</P> <P>(2) The employee could not reasonably have been expected to have known of such exclusion.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 10.826</SECTNO> <SUBJECT>How can an excluded provider be reinstated?</SUBJECT> <P>(a) If a physician, hospital, or provider of medical services or supplies has been automatically excluded pursuant to § 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 25</EAR> <HD SOURCE="HED">PART 25—Compensation for Disability and Death of Noncitizen Federal Employees Outside the United States</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>25.1</SECTNO> <SUBJECT>How are claims of Federal employees who are neither citizens nor residents adjudicated?</SUBJECT> <SECTNO>25.2</SECTNO> <SUBJECT>In general, what is the Director's policy regarding such claims?</SUBJECT> <SECTNO>25.3</SECTNO> <SUBJECT>What is the authority to settle and pay such claims?</SUBJECT> <SECTNO>25.4</SECTNO> <SUBJECT>What type of evidence is required to establish a claim under this part?</SUBJECT> <SECTNO>25.5</SECTNO> <SUBJECT>What special rules does OWCP apply to claims of third and fourth country nationals?</SUBJECT> <SECTNO>25.6</SECTNO> <SUBJECT>How does OWCP adjudicate claims of non-citizen residents of possessions?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—The Special Schedule of Compensation</HD> <SECTNO>25.100</SECTNO> <SUBJECT>How is compensation for disability paid?</SUBJECT> <SECTNO>25.101</SECTNO> <SUBJECT>How is compensation for death paid?</SUBJECT> <SECTNO>25.102</SECTNO> <SUBJECT>What general provisions does OWCP apply to the Special Schedule?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Extensions of the Special Schedule of Compensation</HD> <SECTNO>25.200</SECTNO> <SUBJECT>How is the Special Schedule applied for employees in the Republic of the Philippines?</SUBJECT> <SECTNO>25.201</SECTNO> <SUBJECT>How is the Special Schedule applied for employees in Australia?</SUBJECT> <SECTNO>25.202</SECTNO> <SUBJECT>How is the Special Schedule applied for Japanese seamen?</SUBJECT> <SECTNO>25.203</SECTNO> <SUBJECT>How is the Special Schedule applied to non-resident aliens in the Territory of Guam?</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 65340, Nov. 25, 1998, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="69"/> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 25.1</SECTNO> <SUBJECT>How are claims of Federal employees who are neither citizens nor residents adjudicated?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 25.2</SECTNO> <SUBJECT>In general, what is the Director's policy regarding such claims?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 25.3</SECTNO> <SUBJECT>What is the authority to settle and pay such claims?</SUBJECT> <P>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, <PRTPAGE P="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.</P> </SECTION> <SECTION> <SECTNO>§ 25.4</SECTNO> <SUBJECT>What type of evidence is required to establish a claim under this part?</SUBJECT> <P>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:</P> <P>(a) Appropriate certification by the Federal employing establishment; or</P> <P>(b) An armed service's casualty or medical record; or</P> <P>(c) Verification of the employment and casualty by military personnel; or</P> <P>(d) Recommendation of an armed service's “Claim Service” based on investigations conducted by it.</P> </SECTION> <SECTION> <SECTNO>§ 25.5</SECTNO> <SUBJECT>What special rules does OWCP apply to claims of third and fourth country nationals?</SUBJECT> <P>(a) <E T="03">Definitions.</E> 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.</P> <P>(b) <E T="03">Benefits payable.</E> 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.</P> <P>(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 § 25.2(d) shall apply.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 25.6</SECTNO> <SUBJECT>How does OWCP adjudicate claims of non-citizen residents of possessions?</SUBJECT> <P>An employee who is a <E T="03">bona fide</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—The Special Schedule of Compensation</HD> <SECTION> <SECTNO>§ 25.100</SECTNO> <SUBJECT>How is compensation for disability paid?</SUBJECT> <P>Compensation for disability shall be paid to the employee as follows:</P> <P>(a) <E T="03">Permanent total disability.</E> In cases of permanent total disability, 66<FR>2/3</FR> percent of the monthly pay during the period of such disability.</P> <P>(b) <E T="03">Temporary total disability.</E> In cases of temporary total disability, 66<FR>2/3</FR> percent of the monthly pay during the period of such disability.</P> <P>(c) <E T="03">Permanent partial disability.</E> In cases of permanent partial disability, 66<FR>2/3</FR> percent of the monthly pay, for the following losses and periods:</P> <P>(1) Arm lost: 280 weeks' compensation.</P> <P>(2) Leg lost: 248 weeks' compensation.</P> <P>(3) Hand lost: 212 weeks' compensation.</P> <P>(4) Foot lost: 173 weeks' compensation.</P> <P>(5) Eye lost: 140 weeks' compensation.</P> <P>(6) Thumb lost: 51 weeks' compensation.</P> <P>(7) First finger lost: 28 weeks' compensation.<PRTPAGE P="71"/> </P> <P>(8) Great toe lost: 26 weeks' compensation.</P> <P>(9) Second finger lost: 18 weeks' compensation.</P> <P>(10) Third finger lost: 17 weeks' compensation.</P> <P>(11) Toe, other than great toe, lost: 8 weeks' compensation.</P> <P>(12) Fourth finger lost: 7 weeks' compensation.</P> <P>(13) Loss of hearing: One ear, 52 weeks' compensation; both ears, 200 weeks' compensation.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Temporary partial disability.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 25.101</SECTNO> <SUBJECT>How is compensation for death paid?</SUBJECT> <P>If the disability causes death, the compensation shall be payable in the amount and to or for the benefit of the following persons:</P> <P>(a) To the undertaker or person entitled to reimbursement, reasonable funeral expenses not exceeding $200.</P> <P>(b) To the surviving spouse, if there is no child, 35 percent of the monthly pay until his or her death or remarriage.</P> <P>(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<FR>2/3</FR> 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 <PRTPAGE P="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.</P> <P>(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<FR>2/3</FR> 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.</P> <P>(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<FR>2/3</FR> percent of the monthly pay.</P> <P>(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<FR>2/3</FR> percent of such pay.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 25.102</SECTNO> <SUBJECT>What general provisions does OWCP apply to the Special Schedule?</SUBJECT> <P>(a) The definitions of terms in the FECA, as amended, shall apply to terms used in this subpart.</P> <P>(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.</P> <P>(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 <PRTPAGE P="73"/>subpart, shall apply in the administration of compensation under this subpart, whenever they can reasonably be applied.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Extensions of the Special Schedule of Compensation</HD> <SECTION> <SECTNO>§ 25.200</SECTNO> <SUBJECT>How is the Special Schedule applied for employees in the Republic of the Philippines?</SUBJECT> <P>(a) <E T="03">Modified special schedule of compensation.</E> 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:</P> <P>(1) <E T="03">Temporary disability.</E> 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.</P> <P>(2) <E T="03">Permanent disability and death.</E> 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.</P> <P>(b) <E T="03">Death benefits.</E> 400 weeks' compensation at two-thirds of the weekly wage rate, shared equally by the eligible survivors in the same class.</P> <P>(c) <E T="03">Death beneficiaries.</E> Benefits are payable to the survivors in the following order of priority (all beneficiaries in the highest applicable classes are entitled to share equally):</P> <P>(1) Surviving spouse and unmarried children under 18, or over 18 and totally incapable of self-support.</P> <P>(2) Dependent parents.</P> <P>(3) Dependent grandparents.</P> <P>(4) Dependent grandchildren, brothers and sisters who are unmarried and under 18, or over 18 and totally incapable of self-support.</P> <P>(d) <E T="03">Burial allowance.</E> 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.</P> <P>(e) <E T="03">Permanent total disability.</E> 400 weeks' compensation at two-thirds of the weekly wage rate.</P> <P>(f) <E T="03">Permanent partial disability.</E> Where applicable, the compensation provided in paragraphs (c) (1) through (19) of § 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.</P> <P>(g) <E T="03">Temporary partial disability.</E> Two-thirds of the weekly loss of wage-earning capacity.</P> <P>(h) <E T="03">Compensation period for temporary disability.</E> Compensation for temporary disability is payable for a maximum period of 80 weeks.</P> <P>(i) <E T="03">Maximum compensation.</E> 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.</P> <P>(j) <E T="03">Method of payment.</E> Only compensation for temporary disability <PRTPAGE P="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.</P> <P>(k) <E T="03">Exceptions.</E> The Director in his or her discretion may make exceptions to the regulations in this section by:</P> <P>(1) Reapportioning death benefits, for the sake of equity.</P> <P>(2) Excluding from consideration potential death beneficiaries who are not available to receive payment.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 25.201</SECTNO> <SUBJECT>How is the Special Schedule applied for employees in Australia?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 25.202</SECTNO> <SUBJECT>How is the Special Schedule applied for Japanese seamen?</SUBJECT> <P>(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.</P> <P>(b) <E T="03">Temporary total disability.</E> Weekly compensation shall be paid at 75 percent of the weekly wage rate.</P> <P>(c) <E T="03">Temporary partial disability.</E> Weekly compensation shall be paid at 75 percent of the weekly loss of wage-earning capacity.</P> <P>(d) <E T="03">Permanent total disability.</E> Compensation shall be paid in a lump sum equivalent to 360 weeks' wages.</P> <P>(e) <E T="03">Permanent partial disability.</E> (1) The provisions of § 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:</P> <P>(i) Arm lost: 312 weeks.</P> <P>(ii) Leg lost: 288 weeks.</P> <P>(iii) Hand lost: 244 weeks.</P> <P>(iv) Foot lost: 205 weeks.</P> <P>(v) Eye lost: 160 weeks.</P> <P>(vi) Thumb lost: 75 weeks.</P> <P>(vii) First finger lost: 46 weeks.</P> <P>(viii) Second finger lost: 30 weeks.</P> <P>(ix) Third finger lost: 25 weeks.</P> <P>(x) Fourth finger lost: 15 weeks.</P> <P>(xi) Great toe lost: 38 weeks.</P> <P>(xii) Toe, other than great toe lost: 16 weeks.</P> <P>(2) In all other cases, that proportion of the compensation provided for permanent total disability in paragraph (d) of this section which is equivalent <PRTPAGE P="75"/>to the degree or percentage of physical impairment caused by the injury.</P> <P>(f) <E T="03">Death.</E> 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:</P> <P>(1) Spouse who lived with or was dependent upon the employee.</P> <P>(2) Unmarried children under 21 who lived with or were dependent upon the employee.</P> <P>(3) Adult children who were dependent upon the employee by reason of physical or mental disability.</P> <P>(4) Dependent parents, grandparents and grandchildren.</P> <P>(g) <E T="03">Burial allowance.</E> $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.</P> <P>(h) <E T="03">Method of payment.</E> 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.</P> <P>(i) <E T="03">Maxima.</E> 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.</P> <P>(j) <E T="03">Prior injury.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 25.203</SECTNO> <SUBJECT>How is the Special Schedule applied to non-resident aliens in the Territory of Guam?</SUBJECT> <P>(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.</P> <P>(b) <E T="03">Death benefits.</E> 400 weeks' compensation at two-thirds of the weekly wage rate, shared equally by the eligible survivors in the same class.</P> <P>(c) <E T="03">Death beneficiaries.</E> Beneficiaries of death benefits shall be determined in accordance with the laws or customs of the country of recruitment.</P> <P>(d) <E T="03">Burial allowance.</E> 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.</P> <P>(e) <E T="03">Permanent total disability.</E> 400 weeks' compensation at two-thirds of the weekly wage rate.</P> <P>(f) <E T="03">Permanent partial disability.</E> Where applicable, the compensation provided in paragraphs (c) (1) through (19) of § 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.</P> <P>(g) <E T="03">Temporary partial disability.</E> Two-thirds of the weekly loss of wage-earning capacity.</P> <P>(h) <E T="03">Compensation period for temporary disability.</E> Compensation for temporary disability is payable for a maximum period of 80 weeks.</P> <P>(i) <E T="03">Maximum compensation.</E> 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.<PRTPAGE P="76"/> </P> <P>(j) <E T="03">Method of payment.</E> 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.</P> <P>(k) <E T="03">Exceptions.</E> The Director may in his or her discretion make exception to the regulations in this section by:</P> <P>(1) Reapportioning death benefits for the sake of equity.</P> <P>(2) Excluding from consideration potential beneficiaries of a deceased employee who are not available to receive payment.</P> <P>(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).</P> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="77"/> <HD SOURCE="HED">SUBCHAPTER C—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000</HD> <PART> <EAR>Pt. 30</EAR> <HD SOURCE="HED">PART 30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Introduction</HD> <SECHD>Sec.</SECHD> <SECTNO>30.0</SECTNO> <SUBJECT>What are the provisions of EEOICPA, in general?</SUBJECT> <SECTNO>30.1</SECTNO> <SUBJECT>What rules govern the administration of EEOICPA and this chapter?</SUBJECT> <SECTNO>30.2</SECTNO> <SUBJECT>In general, how have the tasks associated with the administration of the EEOICPA claims process been assigned?</SUBJECT> <SECTNO>30.3</SECTNO> <SUBJECT>What do these regulations contain?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>30.5</SECTNO> <SUBJECT>What are the definitions used in this part?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information in Program Records</HD> <SECTNO>30.10</SECTNO> <SUBJECT>Are all OWCP records relating to claims filed under EEOICPA considered confidential?</SUBJECT> <SECTNO>30.11</SECTNO> <SUBJECT>Who maintains custody and control of claim records?</SUBJECT> <SECTNO>30.12</SECTNO> <SUBJECT>What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rights and Penalties</HD> <SECTNO>30.15</SECTNO> <SUBJECT>May EEOICPA benefits be assigned, transferred or garnished?</SUBJECT> <SECTNO>30.16</SECTNO> <SUBJECT>What penalties may be imposed in connection with a claim under the Act?</SUBJECT> <SECTNO>30.17</SECTNO> <SUBJECT>Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims</HD> <SUBJGRP> <HD SOURCE="HED">Filing Claims for Benefits Under EEOICPA</HD> <SECTNO>30.100</SECTNO> <SUBJECT>In general, how does an employee file an initial claim for benefits?</SUBJECT> <SECTNO>30.101</SECTNO> <SUBJECT>In general, how is a survivor's claim filed?</SUBJECT> <SECTNO>30.102</SECTNO> <SUBJECT>In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?</SUBJECT> <SECTNO>30.103</SECTNO> <SUBJECT>How does a claimant make sure that OWCP has the evidence necessary to process the claim?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Verification of Alleged Employment</HD> <SECTNO>30.105</SECTNO> <SUBJECT>What must DOE do after an employee or survivor files a claim?</SUBJECT> <SECTNO>30.106</SECTNO> <SUBJECT>Can OWCP request employment verification from other sources?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence and Burden of Proof</HD> <SECTNO>30.110</SECTNO> <SUBJECT>Who is entitled to compensation under the Act?</SUBJECT> <SECTNO>30.111</SECTNO> <SUBJECT>What is the claimant's responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?</SUBJECT> <SECTNO>30.112</SECTNO> <SUBJECT>What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?</SUBJECT> <SECTNO>30.113</SECTNO> <SUBJECT>What are the requirements for written medical documentation, contemporaneous records, and other records or documents?</SUBJECT> <SECTNO>30.114</SECTNO> <SUBJECT>What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Procedures for Certain Radiogenic Cancer Claims</HD> <SECTNO>30.115</SECTNO> <SUBJECT>For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Eligibility Criteria</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>30.200</SECTNO> <SUBJECT>What is the scope of this subpart?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA</HD> <SECTNO>30.205</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B?</SUBJECT> <SECTNO>30.206</SECTNO> <SUBJECT>How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?</SUBJECT> <SECTNO>30.207</SECTNO> <SUBJECT>How does a claimant prove a diagnosis of a beryllium disease covered under Part B?</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="78"/> <HD SOURCE="HED">Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA</HD> <SECTNO>30.210</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits relating to radiogenic cancer?</SUBJECT> <SECTNO>30.211</SECTNO> <SUBJECT>How does a claimant establish that the employee has or had contracted cancer?</SUBJECT> <SECTNO>30.212</SECTNO> <SUBJECT>How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility?</SUBJECT> <SECTNO>30.213</SECTNO> <SUBJECT>How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility?</SUBJECT> <SECTNO>30.214</SECTNO> <SUBJECT>How does a claimant establish that the employee is a member of the Special Exposure Cohort?</SUBJECT> <SECTNO>30.215</SECTNO> <SUBJECT>How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA</HD> <SECTNO>30.220</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits relating to chronic silicosis?</SUBJECT> <SECTNO>30.221</SECTNO> <SUBJECT>How does a claimant prove exposure to silica in the performance of duty?</SUBJECT> <SECTNO>30.222</SECTNO> <SUBJECT>How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA</HD> <SECTNO>30.225</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees?</SUBJECT> <SECTNO>30.226</SECTNO> <SUBJECT>How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Other Claims Under Part E of EEOICPA</HD> <SECTNO>30.230</SECTNO> <SUBJECT>What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA?</SUBJECT> <SECTNO>30.231</SECTNO> <SUBJECT>How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?</SUBJECT> <SECTNO>30.232</SECTNO> <SUBJECT>How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Adjudicatory Process</HD> <SECTNO>30.300</SECTNO> <SUBJECT>What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions?</SUBJECT> <SECTNO>30.301</SECTNO> <SUBJECT>May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?</SUBJECT> <SECTNO>30.302</SECTNO> <SUBJECT>Who pays the costs associated with subpoenas?</SUBJECT> <SECTNO>30.303</SECTNO> <SUBJECT>What information may OWCP request in connection with a claim under Part E of EEOICPA?</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Recommended Decisions on Claims</HD> <SECTNO>30.305</SECTNO> <SUBJECT>How does OWCP determine entitlement to EEOICPA compensation?</SUBJECT> <SECTNO>30.306</SECTNO> <SUBJECT>What does the recommended decision contain?</SUBJECT> <SECTNO>30.307</SECTNO> <SUBJECT>To whom is the recommended decision sent?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings and Final Decisions on Claims</HD> <SECTNO>30.310</SECTNO> <SUBJECT>What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?</SUBJECT> <SECTNO>30.311</SECTNO> <SUBJECT>What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?</SUBJECT> <SECTNO>30.312</SECTNO> <SUBJECT>What will the FAB do if the claimant objects to the recommended decision but does not request a hearing?</SUBJECT> <SECTNO>30.313</SECTNO> <SUBJECT>How is a review of the written record conducted?</SUBJECT> <SECTNO>30.314</SECTNO> <SUBJECT>How is a hearing conducted?</SUBJECT> <SECTNO>30.315</SECTNO> <SUBJECT>May a claimant postpone a hearing?</SUBJECT> <SECTNO>30.316</SECTNO> <SUBJECT>How does the FAB issue a final decision on a claim?</SUBJECT> <SECTNO>30.317</SECTNO> <SUBJECT>Can the FAB request a further response from the claimant or return a claim to the district office?</SUBJECT> <SECTNO>30.318</SECTNO> <SUBJECT>Can the FAB consider objections to HHS's reconstruction of a radiation dose or to the guidelines OWCP uses to determine if a claimed cancer was at least as likely as not related to employment?</SUBJECT> <SECTNO>30.319</SECTNO> <SUBJECT>May a claimant request reconsideration of a final decision of the FAB?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reopening Claims</HD> <SECTNO>30.320</SECTNO> <SUBJECT>Can a claim be reopened after the FAB has issued a final decision?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Medical and Related Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Medical Treatment and Related Issues</HD> <SECTNO>30.400</SECTNO> <SUBJECT>What are the basic rules for obtaining medical treatment?</SUBJECT> <SECTNO>30.401</SECTNO> <SUBJECT>What are the special rules for the services of chiropractors?</SUBJECT> <SECTNO>30.402</SECTNO> <SUBJECT>What are the special rules for the services of clinical psychologists?</SUBJECT> <SECTNO>30.403</SECTNO> <SUBJECT>Will OWCP pay for the services of an attendant?</SUBJECT> <SECTNO>30.404</SECTNO> <SUBJECT>Will OWCP pay for transportation to obtain medical treatment?<PRTPAGE P="79"/> </SUBJECT> <SECTNO>30.405</SECTNO> <SUBJECT>After selecting a treating physician, may an employee choose to be treated by another physician instead?</SUBJECT> <SECTNO>30.406</SECTNO> <SUBJECT>Are there any exceptions to these procedures for obtaining medical care?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Directed Medical Examinations</HD> <SECTNO>30.410</SECTNO> <SUBJECT>Can OWCP require an employee to be examined by another physician?</SUBJECT> <SECTNO>30.411</SECTNO> <SUBJECT>What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?</SUBJECT> <SECTNO>30.412</SECTNO> <SUBJECT>Who pays for second opinion and referee examinations?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Reports</HD> <SECTNO>30.415</SECTNO> <SUBJECT>What are the requirements for medical reports?</SUBJECT> <SECTNO>30.416</SECTNO> <SUBJECT>How and when should medical reports be submitted?</SUBJECT> <SECTNO>30.417</SECTNO> <SUBJECT>What additional medical information may OWCP require to support continuing payment of benefits?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Bills</HD> <SECTNO>30.420</SECTNO> <SUBJECT>How should medical bills and reimbursement requests be submitted?</SUBJECT> <SECTNO>30.421</SECTNO> <SUBJECT>What are the time frames for submitting bills and reimbursement requests?</SUBJECT> <SECTNO>30.422</SECTNO> <SUBJECT>If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Survivors; Payments and Offsets; Overpayments</HD> <SUBJGRP> <HD SOURCE="HED">Survivors</HD> <SECTNO>30.500</SECTNO> <SUBJECT>What special statutory definitions apply to survivors under EEOICPA?</SUBJECT> <SECTNO>30.501</SECTNO> <SUBJECT>What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?</SUBJECT> <SECTNO>30.502</SECTNO> <SUBJECT>When is entitlement for survivors determined for purposes of EEOICPA?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Payment of Claims and Offset for Certain Payments</HD> <SECTNO>30.505</SECTNO> <SUBJECT>What procedures will OWCP follow before it pays any compensation?</SUBJECT> <SECTNO>30.506</SECTNO> <SUBJECT>To whom and in what manner will OWCP pay compensation?</SUBJECT> <SECTNO>30.507</SECTNO> <SUBJECT>What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA?</SUBJECT> <SECTNO>30.508</SECTNO> <SUBJECT>What is beryllium sensitivity monitoring?</SUBJECT> <SECTNO>30.509</SECTNO> <SUBJECT>Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Overpayments</HD> <SECTNO>30.510</SECTNO> <SUBJECT>How does OWCP notify an individual of a payment made on a claim?</SUBJECT> <SECTNO>30.511</SECTNO> <SUBJECT>What is an “overpayment” for purposes of EEOICPA?</SUBJECT> <SECTNO>30.512</SECTNO> <SUBJECT>What does OWCP do when an overpayment is identified?</SUBJECT> <SECTNO>30.513</SECTNO> <SUBJECT>Under what circumstances may OWCP waive recovery of an overpayment?</SUBJECT> <SECTNO>30.514</SECTNO> <SUBJECT>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?</SUBJECT> <SECTNO>30.515</SECTNO> <SUBJECT>Is a recipient responsible for an overpayment that resulted from an error made by OWCP?</SUBJECT> <SECTNO>30.516</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment defeat the purpose of the Act?</SUBJECT> <SECTNO>30.517</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment be against equity and good conscience?</SUBJECT> <SECTNO>30.518</SECTNO> <SUBJECT>Can OWCP require the recipient of the overpayment to submit additional financial information?</SUBJECT> <SECTNO>30.519</SECTNO> <SUBJECT>How does OWCP communicate its final decision concerning recovery of an overpayment?</SUBJECT> <SECTNO>30.520</SECTNO> <SUBJECT>How are overpayments collected?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Special Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Representation</HD> <SECTNO>30.600</SECTNO> <SUBJECT>May a claimant designate a representative?</SUBJECT> <SECTNO>30.601</SECTNO> <SUBJECT>Who may serve as a representative?</SUBJECT> <SECTNO>30.602</SECTNO> <SUBJECT>Who is responsible for paying the representative's fee?</SUBJECT> <SECTNO>30.603</SECTNO> <SUBJECT>Are there any limitations on what the representative may charge the claimant for his or her services?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Third Party Liability</HD> <SECTNO>30.605</SECTNO> <SUBJECT>What rights does the United States have upon payment of compensation under EEOICPA?</SUBJECT> <SECTNO>30.606</SECTNO> <SUBJECT>Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP?</SUBJECT> <SECTNO>30.607</SECTNO> <SUBJECT>How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery?</SUBJECT> <SECTNO>30.608</SECTNO> <SUBJECT>How does the United States calculate the amount to which it is subrogated?</SUBJECT> <SECTNO>30.609</SECTNO> <SUBJECT>Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP?</SUBJECT> <SECTNO>30.610</SECTNO> <SUBJECT>Are payments to a covered Part B employee, a covered Part E employee or <PRTPAGE P="80"/>an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?</SUBJECT> <SECTNO>30.611</SECTNO> <SUBJECT>If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers</HD> <SECTNO>30.615</SECTNO> <SUBJECT>What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA?</SUBJECT> <SECTNO>30.616</SECTNO> <SUBJECT>What happens if this type of tort suit was filed prior to October 30, 2000?</SUBJECT> <SECTNO>30.617</SECTNO> <SUBJECT>What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?</SUBJECT> <SECTNO>30.618</SECTNO> <SUBJECT>What happens if this type of tort suit was filed after December 28, 2001?</SUBJECT> <SECTNO>30.619</SECTNO> <SUBJECT>Do all the parties to this type of tort suit have to take these actions?</SUBJECT> <SECTNO>30.620</SECTNO> <SUBJECT>How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of EEOICPA?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Coordination of Part E Benefits With State Workers' Compensation Benefits</HD> <SECTNO>30.625</SECTNO> <SUBJECT>What does “coordination of benefits” mean under Part E of EEOICPA?</SUBJECT> <SECTNO>30.626</SECTNO> <SUBJECT>How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers' compensation programs?</SUBJECT> <SECTNO>30.627</SECTNO> <SUBJECT>Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Information for Medical Providers</HD> <SUBJGRP> <HD SOURCE="HED">Medical Records and Bills</HD> <SECTNO>30.700</SECTNO> <SUBJECT>What kind of medical records must providers keep?</SUBJECT> <SECTNO>30.701</SECTNO> <SUBJECT>How are medical bills to be submitted?</SUBJECT> <SECTNO>30.702</SECTNO> <SUBJECT>How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?</SUBJECT> <SECTNO>30.703</SECTNO> <SUBJECT>What are the time limitations on OWCP's payment of bills?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Fee Schedule</HD> <SECTNO>30.705</SECTNO> <SUBJECT>What services are covered by the OWCP fee schedule?</SUBJECT> <SECTNO>30.706</SECTNO> <SUBJECT>How are the maximum fees defined?</SUBJECT> <SECTNO>30.707</SECTNO> <SUBJECT>How are payments for particular services calculated?</SUBJECT> <SECTNO>30.708</SECTNO> <SUBJECT>Does the fee schedule apply to every kind of procedure?</SUBJECT> <SECTNO>30.709</SECTNO> <SUBJECT>How are payments for medicinal drugs determined?</SUBJECT> <SECTNO>30.710</SECTNO> <SUBJECT>How are payments for inpatient medical services determined?</SUBJECT> <SECTNO>30.711</SECTNO> <SUBJECT>When and how are fees reduced?</SUBJECT> <SECTNO>30.712</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider request reconsideration of the reduction?</SUBJECT> <SECTNO>30.713</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider bill the employee for the balance?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Exclusion of Providers</HD> <SECTNO>30.715</SECTNO> <SUBJECT>What are the grounds for excluding a provider for payment under this part?</SUBJECT> <SECTNO>30.716</SECTNO> <SUBJECT>What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?</SUBJECT> <SECTNO>30.717</SECTNO> <SUBJECT>When are OWCP's exclusion procedures initiated?</SUBJECT> <SECTNO>30.718</SECTNO> <SUBJECT>How is a provider notified of OWCP's intent to exclude him or her?</SUBJECT> <SECTNO>30.719</SECTNO> <SUBJECT>What requirements must the provider's reply and OWCP's decision meet?</SUBJECT> <SECTNO>30.720</SECTNO> <SUBJECT>How can an excluded provider request a hearing?</SUBJECT> <SECTNO>30.721</SECTNO> <SUBJECT>How are hearings assigned and scheduled?</SUBJECT> <SECTNO>30.722</SECTNO> <SUBJECT>How are subpoenas or advisory opinions obtained?</SUBJECT> <SECTNO>30.723</SECTNO> <SUBJECT>How will the administrative law judge conduct the hearing and issue the recommended decision?</SUBJECT> <SECTNO>30.724</SECTNO> <SUBJECT>How can a party request review by OWCP of the administrative law judge's recommended decision?</SUBJECT> <SECTNO>30.725</SECTNO> <SUBJECT>What are the effects of non-automatic exclusion?</SUBJECT> <SECTNO>30.726</SECTNO> <SUBJECT>How can an excluded provider be reinstated?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Wage-Loss Determinations Under Part E of EEOICPA</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>30.800</SECTNO> <SUBJECT>What types of wage-loss are compensable under Part E of EEOICPA?</SUBJECT> <SECTNO>30.801</SECTNO> <SUBJECT>What special definitions does OWCP use in connection with Part E wage-loss determinations?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence of Wage-Loss</HD> <SECTNO>30.805</SECTNO> <SUBJECT>What evidence does OWCP use to determine a covered Part E employee's average annual wage and whether he or she experienced compensable wage-loss under Part E of EEOICPA?</SUBJECT> <SECTNO>30.806</SECTNO> <SUBJECT>May a claimant submit factual evidence in support of a different determination of average annual wage and/or wage-loss than that found by OWCP?</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="81"/> <HD SOURCE="HED">Determinations of Average Annual Wage and Percentages of Loss</HD> <SECTNO>30.810</SECTNO> <SUBJECT>How will OWCP calculate the average annual wage of a covered Part E employee?</SUBJECT> <SECTNO>30.811</SECTNO> <SUBJECT>How will OWCP calculate the duration and extent of a covered Part E employee's initial period of compensable wage-loss?</SUBJECT> <SECTNO>30.812</SECTNO> <SUBJECT>May a covered Part E employee claim for subsequent periods of compensable wage-loss?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Rules for Certain Survivor Claims Under Part E of EEOICPA</HD> <SECTNO>30.815</SECTNO> <SUBJECT>Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee's compensable wage-loss?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Impairment Benefits Under Part E of EEOICPA</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>30.900</SECTNO> <SUBJECT>Who can receive impairment benefits under Part E?</SUBJECT> <SECTNO>30.901</SECTNO> <SUBJECT>How does OWCP determine the extent of an employee's impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?</SUBJECT> <SECTNO>30.902</SECTNO> <SUBJECT>How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Evidence of Impairment</HD> <SECTNO>30.905</SECTNO> <SUBJECT>How may an impairment evaluation be obtained?</SUBJECT> <SECTNO>30.906</SECTNO> <SUBJECT>Who will pay for an impairment evaluation?</SUBJECT> <SECTNO>30.907</SECTNO> <SUBJECT>Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?</SUBJECT> <SECTNO>30.908</SECTNO> <SUBJECT>How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ratable Impairments</HD> <SECTNO>30.910</SECTNO> <SUBJECT>Will an impairment that cannot be assigned a numerical percentage using the AMA's <E T="03">Guides</E> be included in the impairment rating?</SUBJECT> <SECTNO>30.911</SECTNO> <SUBJECT>Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?</SUBJECT> <SECTNO>30.912</SECTNO> <SUBJECT>Can a covered Part E employee receive benefits for additional impairment following an award of such benefits by OWCP?</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 4-2001, 66 FR 29656.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>71 FR 78534, Dec. 29, 2006, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Introduction</HD> <SECTION> <SECTNO>§ 30.0</SECTNO> <SUBJECT>What are the provisions of EEOICPA, in general?</SUBJECT> <P>Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 <E T="03">et seq.</E>, provides for the payment of compensation benefits to covered Part B employees and, where applicable, survivors of such employees, of the United States Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors. Part B also provides for the payment of supplemental compensation benefits to other covered Part B employees who have already been found eligible for benefits under section 5 of the Radiation Exposure Compensation Act, as amended (RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such persons. Part E of the Act provides for the payment of compensation benefits to covered Part E employees and, where applicable, survivors of such employees. The regulations in this part describe the rules governing filing, processing, and paying claims for benefits under both Part B and Part E of EEOICPA.</P> <P>(a) Part B of EEOICPA provides for the payment of either lump-sum monetary compensation for the disability of a covered Part B employee due to an occupational illness or for monitoring for beryllium sensitivity, as well as for medical and related benefits for such illness. Part B also provides for the payment of monetary compensation for the disability of a covered Part B employee to specified survivors if the employee is deceased at the time of payment.</P> <P>(b) Part E of EEOICPA provides for the payment of monetary compensation for the established wage-loss and/or impairment of a covered Part E employee due to a covered illness, and for medical and related benefits for such covered illness. Part E also provides for <PRTPAGE P="82"/>the payment of monetary compensation for the death (and established wage-loss, where applicable) of a covered Part E employee to specified survivors if the covered Part E employee is deceased at the time of payment.</P> <P>(c) All types of benefits and conditions of eligibility listed in this section are subject to the provisions of EEOICPA and this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.1</SECTNO> <SUBJECT>What rules govern the administration of EEOICPA and this chapter?</SUBJECT> <P>In accordance with EEOICPA, Executive Order 13179 and Secretary's Order No. 4-2001, the primary responsibility for administering the Act, except for those activities assigned to the Secretary of Health and Human Services (HHS), the Secretary of Energy and the Attorney General, has been delegated to the Assistant Secretary of Labor for Employment Standards. The Assistant Secretary, in turn, has delegated the responsibility for administering the Act to the Director of the Office of Workers' Compensation Programs (OWCP). Except as otherwise provided by law, the Director of OWCP and his or her designees have the exclusive authority to administer, interpret and enforce the provisions of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 30.2</SECTNO> <SUBJECT>In general, how have the tasks associated with the administration of EEOICPA claims process been assigned?</SUBJECT> <P>(a) In E.O. 13179, the President assigned the tasks associated with administration of the EEOICPA claims process among the Secretaries of Labor, HHS and Energy, and the Attorney General. In light of the fact that the Secretary of Labor has been assigned primary responsibility for administering EEOICPA, almost the entire claims process is within the exclusive control of OWCP. This means that all claimants file their claims with OWCP, and OWCP is responsible for granting or denying compensation under the Act (see §§ 30.100 through 30.102). OWCP also provides assistance to claimants and potential claimants by providing information regarding eligibility and other program requirements, including information on completing claim forms and the types and availability of medical testing and diagnostic services related to occupational illnesses under Part B of the Act and covered illnesses under Part E of the Act. In addition, OWCP provides an administrative review process for claimants who disagree with its recommended and final adverse decisions on claims of entitlement (see §§ 30.300 through 30.320).</P> <P>(b) However, HHS has exclusive control of the portion of the claims process under which it provides reconstructed doses for certain radiogenic cancer claims (see § 30.115). HHS also has exclusive control of the process for designating classes of employees to be added to the Special Exposure Cohort under Part B of the Act, and has promulgated regulations governing that process at 42 CFR part 83. Finally, HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee's radiogenic cancer (see § 30.213). DOE and DOJ must, among other things, notify potential claimants and submit evidence that OWCP deems necessary for its adjudication of claims under EEOICPA (see §§ 30.105, 30.112, 30.206, 30.212 and 30.221).</P> </SECTION> <SECTION> <SECTNO>§ 30.3</SECTNO> <SUBJECT>What do these regulations contain?</SUBJECT> <P>This part 30 sets forth the regulations governing administration of all claims that are filed with OWCP, except to the extent specified in certain provisions. Its provisions are intended to assist persons seeking benefits under EEOICPA, as well as personnel in the various federal agencies and DOL who process claims filed under EEOICPA or who perform administrative functions with respect to EEOICPA. The various subparts of this part contain the following:</P> <P>(a) Subpart A: The general statutory and administrative framework for processing claims under both Parts B and E of EEOICPA. It contains a statement of purpose and scope, together with definitions of terms, information regarding the disclosure of OWCP records, and a description of rights and penalties involving EEOICPA claims, including convictions for fraud.</P> <P>(b) Subpart B: The rules for filing claims for entitlement under <PRTPAGE P="83"/>EEOICPA. It also addresses general standards regarding necessary evidence and the burden of proof, descriptions of basic forms and special procedures for certain cancer claims.</P> <P>(c) Subpart C: The eligibility criteria for occupational illnesses and covered illnesses compensable under Parts B and E of EEOICPA, respectively.</P> <P>(d) Subpart D: The rules governing the adjudication process leading to recommended and final decisions on claims for entitlement filed under Parts B and E of EEOICPA. It also describes the hearing and reopening processes.</P> <P>(e) Subpart E: The rules governing medical care, second opinion and referee medical examinations and impairment evaluations directed by OWCP as part of its adjudication of entitlement, and medical reports and records in general. It also addresses the kinds of medical treatment that may be authorized and how medical bills are paid.</P> <P>(f) Subpart F: The rules relating to the payment of monetary compensation available under Parts B and E of EEOICPA. It includes provisions on medical monitoring for beryllium sensitivity, on the identification, processing and recovery of overpayments of compensation, and on the maximum aggregate amount of compensation payable under Part E.</P> <P>(g) Subpart G: The rules concerning the representation of claimants in connection with the administrative adjudication of claims before OWCP, subrogation of the United States, the effect of tort suits against beryllium vendors and atomic weapons employers, and the coordination of benefits under Part E of EEOICPA with state workers' compensation benefits for the same covered illness.</P> <P>(h) Subpart H: Information for medical providers. It includes rules for medical reports, medical bills, and the OWCP medical fee schedule, as well as the provisions for exclusion of medical providers.</P> <P>(i) Subpart I: The rules relating to the adjudication of alleged periods of wage-loss of covered Part E employees. It also includes provisions on the use by OWCP of Social Security Administration earnings information and certain medical evidence to establish compensable wage-loss.</P> <P>(j) Subpart J: The rules relating to the adjudication of alleged permanent impairment due to the exposure of covered Part E employees to toxic substances. It includes provisions relating to the medical evaluation of ratable impairments, the rating of progressive conditions, and qualifications of physicians.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 30.5</SECTNO> <SUBJECT>What are the definitions used in this part?</SUBJECT> <P>(a) <E T="03">Act</E> or <E T="03">EEOICPA</E> means the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 <E T="03">et seq.</E>).</P> <P>(b) <E T="03">Atomic weapon</E> means any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device), the principle purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapon test device.</P> <P>(c) <E T="03">Atomic weapons employee</E> means:</P> <P>(1) An individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; or</P> <P>(2)(i) An individual employed at a facility that the National Institute for Occupational Safety and Health (NIOSH) reported had a potential for significant residual contamination outside of the period described in paragraph (c)(1) of this section;</P> <P>(ii) By the atomic weapons employer that owned the facility referred to in paragraph (c)(2)(i) of this section, or a subsequent owner or operator of such facility; and</P> <P>(iii) During a period reported by NIOSH, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, to have a potential for significant residual radioactive contamination.<PRTPAGE P="84"/> </P> <P>(d) <E T="03">Atomic weapons employer</E> means any entity, other than the United States, that:</P> <P>(1) Processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and</P> <P>(2) Is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.</P> <P>(e) <E T="03">Atomic weapons employer facility</E> means any facility, owned by an atomic weapons employer, that:</P> <P>(1) Is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling; and</P> <P>(2) Is designated as such in the list periodically published in the <E T="04">Federal Register</E> by DOE.</P> <P>(f) <E T="03">Attorney General</E> means the Attorney General of the United States or the United States Department of Justice (DOJ).</P> <P>(g) <E T="03">Benefit</E> or <E T="03">Compensation</E> means the money the Department pays to or on behalf of either a covered Part B employee under Part B, or a covered Part E employee under Part E, from the Energy Employees Occupational Illness Compensation Fund. However, the term “compensation” used in section 7385f(b) of EEOICPA (restricting entitlement to only one payment of compensation under Part B) means only the payments specified in section 7384s(a)(1) and in section 7384u(a). Except as used in section 7385f(b), these two terms also include any other amounts paid out of the Fund for such things as medical treatment, monitoring, examinations, services, appliances and supplies as well as for transportation and expenses incident to the securing of such medical treatment, monitoring, examinations, services, appliances, and supplies.</P> <P>(h) <E T="03">Beryllium sensitization or sensitivity</E> means that the individual has an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.</P> <P>(i) <E T="03">Beryllium vendor</E> means the specific corporations and named predecessor corporations listed in section 7384l(6) of the Act and any of the facilities designated as such in the list periodically published in the <E T="04">Federal Register</E> by DOE.</P> <P>(j) <E T="03">Chronic silicosis</E> means a non-malignant lung disease if:</P> <P>(1) The initial occupational exposure to silica dust preceded the onset of silicosis by at least 10 years; and</P> <P>(2) A written diagnosis of silicosis is made by a medical doctor and is accompanied by:</P> <P>(i) A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or</P> <P>(ii) Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or</P> <P>(iii) Lung biopsy findings consistent with silicosis.</P> <P>(k) <E T="03">Claim</E> means a written assertion to OWCP of an individual's entitlement to benefits under EEOICPA, submitted in a manner authorized by this part.</P> <P>(l) <E T="03">Claimant</E> means the individual who is alleged to satisfy the criteria for compensation under the Act.</P> <P>(m) <E T="03">Compensation fund</E> or <E T="03">fund</E> means the fund established on the books of the Treasury for payment of benefits and compensation under the Act.</P> <P>(n) <E T="03">Contemporaneous record</E> means any document created at or around the time of the event that is recorded in the document.</P> <P>(o) <E T="03">Covered beryllium illness</E> means any of the following:</P> <P>(1) Beryllium sensitivity as established by an abnormal LPT performed on either blood or lung lavage cells.</P> <P>(2) Established chronic beryllium disease (see § 30.207(c)).</P> <P>(3) Any injury, illness, impairment, or disability sustained as a consequence of a covered beryllium illness referred to in paragraphs (o)(1) or (2) of this section.</P> <P>(p) <E T="03">Covered Part E employee</E> means, under Part E of the Act, a Department of Energy contractor employee or a RECA section 5 uranium worker who has been determined by OWCP to have contracted a covered illness (see paragraph (r) of this section) through exposure at a Department of Energy facility or a RECA section 5 facility, as appropriate.<PRTPAGE P="85"/> </P> <P>(q) <E T="03">Covered Part B employee</E> means, under Part B of the Act, a covered beryllium employee (see § 30.205), a covered employee with cancer (see § 30.210(a)), a covered employee with chronic silicosis (see § 30.220), or a covered uranium employee (see paragraph (s) of this section).</P> <P>(r) <E T="03">Covered illness</E> means, under Part E of the Act relating to exposures at a DOE facility or a RECA section 5 facility, an illness or death resulting from exposure to a toxic substance.</P> <P>(s) <E T="03">Covered uranium employee</E> means, under Part B of the Act, an individual who has been determined by DOJ to be entitled to an award under section 5 of RECA, whether or not the individual was the employee or the deceased employee's survivor.</P> <P>(t) <E T="03">Current or former employee as defined in 5 U.S.C. 8101(1)</E> as used in § 30.205(a)(1) means an individual who fits within one of the following listed groups:</P> <P>(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;</P> <P>(2) An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;</P> <P>(3) An individual, other than an independent contractor or individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;</P> <P>(4) An individual appointed to a position on the office staff of a former President; or</P> <P>(5) An individual selected and serving as a Federal petit or grand juror.</P> <P>(u) <E T="03">Department</E> means the United States Department of Labor (DOL).</P> <P>(v) <E T="03">Department of Energy</E> or <E T="03">DOE</E> includes the predecessor agencies of the DOE, including the Manhattan Engineering District.</P> <P>(w) <E T="03">Department of Energy contractor employee</E> means any of the following:</P> <P>(1) An individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months.</P> <P>(2) An individual who is or was employed at a DOE facility by:</P> <P>(i) An entity that contracted with the DOE to provide management and operating, management and integration, or environmental remediation at the facility; or</P> <P>(ii) A contractor or subcontractor that provided services, including construction and maintenance, at the facility.</P> <P>(x)(1) <E T="03">Department of Energy facility</E> means, as determined by the Director of OWCP, any building, structure, or premise, including the grounds upon which such building, structure, or premise is located:</P> <P>(i) In which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by E.O. 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and</P> <P>(ii) With regard to which the DOE has or had:</P> <P>(A) A proprietary interest; or</P> <P>(B) Entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.</P> <P>(2) DOL has adopted the determinations of the Department of Energy regarding Department of Energy facilities that were contained in the list of facilities published in the <E T="04">Federal Register</E> on August 23, 2004 (69 FR 51825). DOL will periodically update this list as it deems appropriate in its sole discretion by publishing a revised list of Department of Energy facilities in the <E T="04">Federal Register</E>.</P> <P>(y) <E T="03">Disability</E> means, for purposes of determining entitlement to payment of Part B benefits under section 7384s(a)(1) of the Act, having been determined by OWCP to have or have had established chronic beryllium disease, cancer, or chronic silicosis.</P> <P>(z) <E T="03">Eligible surviving beneficiary</E> means any individual who is entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of the Act to receive a payment on behalf of a deceased covered Part B <PRTPAGE P="86"/>employee or a deceased covered Part E employee.</P> <P>(aa) <E T="03">Employee</E> means either a current or former employee.</P> <P>(bb) <E T="03">Occupational illness</E> means, under Part B of the Act, a covered beryllium illness, cancer sustained in the performance of duty as defined in § 30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has awarded compensation under section 5 of RECA.</P> <P>(cc) <E T="03">OWCP</E> means the Office of Workers' Compensation Programs, United States Department of Labor. One of the four divisions of OWCP is the Division of Energy Employees Occupational Illness Compensation.</P> <P>(dd) <E T="03">Physician</E> includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. The term “physician” includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.</P> <P>(ee) <E T="03">Qualified physician</E> means any physician who has not been excluded under the provisions of subpart H of this part. Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP.</P> <P>(ff) <E T="03">Specified cancer</E> (as defined in section 4(b)(2) of RECA and in EEOICPA) means:</P> <P>(1) Leukemia (other than chronic lymphocytic leukemia) provided that the onset of the disease was at least 2 years after first exposure;</P> <P>(2) Lung cancer (other than in situ lung cancer that is discovered during or after a post-mortem exam);</P> <P>(3) Bone cancer;</P> <P>(4) Renal cancers; or</P> <P>(5) The following diseases, provided onset was at least 5 years after first exposure:</P> <P>(i) Multiple myeloma;</P> <P>(ii) Lymphomas (other than Hodgkin's disease); and</P> <P>(iii) Primary cancer of the:</P> <P>(A) Thyroid;</P> <P>(B) Male or female breast;</P> <P>(C) Esophagus;</P> <P>(D) Stomach;</P> <P>(E) Pharynx;</P> <P>(F) Small intestine;</P> <P>(G) Pancreas;</P> <P>(H) Bile ducts;</P> <P>(I) Gall bladder;</P> <P>(J) Salivary gland;</P> <P>(K) Urinary bladder;</P> <P>(L) Brain;</P> <P>(M) Colon;</P> <P>(N) Ovary; or</P> <P>(O) Liver (except if cirrhosis or hepatitis B is indicated).</P> <P>(6) The specified diseases designated in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.</P> <P>(gg) <E T="03">Survivor</E> means:</P> <P>(1) For claims under Part B of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse, child, parent, grandchild and grandparent of a deceased covered Part B employee.</P> <P>(2) For claims under Part E of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse and child of a deceased covered Part E employee.</P> <P>(3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) of this section do not include any individuals not living as of the time OWCP makes a lump-sum payment or payments to an eligible surviving beneficiary or beneficiaries.</P> <P>(hh) <E T="03">Time of injury</E> means:</P> <P>(1) In regard to a claim arising out of exposure to beryllium or silica, the last date on which a covered Part B employee was exposed to such substance in the performance of duty in accordance with sections 7384n(a) or 7384r(c) of the Act; or</P> <P>(2) In regard to a claim arising out of exposure to radiation under Part B, the last date on which a covered Part B employee was exposed to radiation in the performance of duty in accordance with section 7384n(b) of the Act or, in the case of a member of the Special Exposure Cohort, the last date on which the member of the Special Exposure Cohort was employed at the Department of Energy facility or the atomic weapons employer facility at which the member was exposed to radiation; or<PRTPAGE P="87"/> </P> <P>(3) In regard to a claim arising out of exposure to a toxic substance, the last date on which a covered Part E employee was employed at the Department of Energy facility or RECA section 5 facility, as appropriate, at which the exposure took place.</P> <P>(ii) <E T="03">Toxic substance</E> means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.</P> <P>(jj) <E T="03">Workday</E> means a single workshift whether or not it occurred on more than one calendar day.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information in Program Records</HD> <SECTION> <SECTNO>§ 30.10</SECTNO> <SUBJECT>Are all OWCP records relating to claims filed under EEOICPA considered confidential?</SUBJECT> <P>All OWCP records relating to claims for benefits under EEOICPA are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act and the Privacy Act of 1974.</P> </SECTION> <SECTION> <SECTNO>§ 30.11</SECTNO> <SUBJECT>Who maintains custody and control of claim records?</SUBJECT> <P>All OWCP records relating to claims for benefits filed under the Act are covered by the Privacy Act system of records entitled DOL/ESA-49 (Office of Workers' Compensation Programs, Energy Employees Occupational Illness Compensation Program Act File). This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/ESA-49 are official records of OWCP. The protection, release, inspection and copying of records covered by DOL/ESA-49 shall be accomplished in accordance with the rules, guidelines and provisions of this part, as well as those contained in 29 CFR parts 70 and 71, and with the notice of the system of records and routine uses published in the <E T="04">Federal Register.</E> All questions relating to access, disclosure, and/or amendment of claims records maintained by OWCP are to be resolved in accordance with this section.</P> </SECTION> <SECTION> <SECTNO>§ 30.12</SECTNO> <SUBJECT>What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?</SUBJECT> <P>(a) A claimant seeking copies of his or her official EEOICPA file should address a request to the District Director of the OWCP district office having custody of the file.</P> <P>(b) Any request to amend a record covered by DOL/ESA-49 should be directed to the district office having custody of the official file.</P> <P>(c) Any administrative appeal taken from a denial issued by OWCP under this section shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rights and Penalties</HD> <SECTION> <SECTNO>§ 30.15</SECTNO> <SUBJECT>May EEOICPA benefits be assigned, transferred or garnished?</SUBJECT> <P>(a) Pursuant to section 7385f(a) of the Act, no claim for EEOICPA benefits may be assigned or transferred.</P> <P>(b) Provisions of the Social Security Act (42 U.S.C. 659) and regulations issued by the Office of Personnel Management at 5 CFR part 581 permit the garnishment of payments of EEOICPA monetary benefits to collect overdue alimony and child support. A request to garnish a payment for either of these purposes should be submitted to the district office that is handling the EEOICPA claim, and must be accompanied by a copy of the pertinent state agency or court order.</P> </SECTION> <SECTION> <SECTNO>§ 30.16</SECTNO> <SUBJECT>What penalties may be imposed in connection with a claim under the Act?</SUBJECT> <P>(a) Other statutory provisions make it a crime to file a false or fraudulent claim or statement with the federal government in connection with a claim under the Act. Included among these provisions is 18 U.S.C. 1001. Enforcement of criminal provisions that may apply to claims under the Act is within the jurisdiction of the Department of Justice.</P> <P>(b) In addition, administrative proceedings may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801 <E T="03">et seq.</E>, to impose civil penalties and assessments against persons or entities who make, submit or present, or cause to be made, submitted or presented, false, fictitious or fraudulent claims or written statements to OWCP in connection with a claim under EEOICPA. The Department's regulations implementing PFCRA are found at 29 CFR part 22.</P> </SECTION> <SECTION> <PRTPAGE P="88"/> <SECTNO>§ 30.17</SECTNO> <SUBJECT>Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?</SUBJECT> <P>When a beneficiary either pleads guilty to or is found guilty on either federal or state criminal charges of defrauding the federal or a state government in connection with a claim for benefits under the Act or any other federal or state workers' compensation law, the beneficiary forfeits (effective the date either the guilty plea is accepted or a verdict of guilty is returned after trial) any entitlement to any further benefits for any injury, illness or death covered by this part for which the time of injury was on or before the date of such guilty plea or verdict. Any subsequent change in or recurrence of the beneficiary's medical condition does not affect termination of entitlement under this section.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims</HD> <SUBJGRP> <HD SOURCE="HED">Filing Claims for Benefits Under EEOICPA</HD> <SECTION> <SECTNO>§ 30.100</SECTNO> <SUBJECT>In general, how does an employee file an initial claim for benefits?</SUBJECT> <P>(a) To claim benefits under EEOICPA, an employee must file a claim in writing. Form EE-1 should be used for this purpose, but any written communication that requests benefits under EEOICPA will be considered a claim. It will, however, be necessary for an employee to submit a Form EE-1 for OWCP to fully develop the claim. Copies of Form EE-1 may be obtained from OWCP or on the Internet at <E T="03">http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.</E> The employee's claim must be filed with OWCP, but another person may do so on the employee's behalf.</P> <P>(b) The employee may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (<E T="03">e.g.</E>, the employee may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations). The employee may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.</P> <P>(c) Except as provided in paragraph (d) of this section, a claim is considered to be “filed” on the date that the employee mails his or her claim to OWCP, as determined by postmark, or on the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a claim under Part B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor will a claim under Part E of EEOICPA be considered to be “filed” earlier than October 30, 2000.</P> <P>(1) The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on the Form EE-1 is true, and must inform OWCP of any subsequent changes to that information.</P> <P>(2) Except for a covered uranium employee filing a claim under Part B of the Act, the employee is responsible for submitting with his or her claim, or arranging for the submission of, medical evidence to OWCP that establishes that he or she sustained an occupational illness and/or a covered illness. This required medical evidence is described in § 30.114 and does not refer to mere recitations of symptoms the employee experienced that the employee believes indicate that he or she sustained an occupational illness or a covered illness.</P> <P>(d) For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the employee mailed his or her claim to DOE, as determined by postmark, or on the date that the claim was received by DOE, whichever is the earliest determinable date. However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.</P> </SECTION> <SECTION> <PRTPAGE P="89"/> <SECTNO>§ 30.101</SECTNO> <SUBJECT>In general, how is a survivor's claim filed?</SUBJECT> <P>(a) A survivor of an employee who sustained an occupational illness or a covered illness must file a claim for compensation in writing. Form EE-2 should be used for this purpose, but any written communication that requests survivor benefits under the Act will be considered a claim. It will, however, be necessary for a survivor to submit a Form EE-2 for OWCP to fully develop the claim. Copies of Form EE-2 may be obtained from OWCP or on the Internet at <E T="03">http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.</E> The survivor's claim must be filed with OWCP, but another person may do so on the survivor's behalf. Although only one survivor needs to file a claim under this section to initiate the development process, OWCP will distribute any monetary benefits payable on the claim among all eligible surviving beneficiaries who have filed claims with OWCP.</P> <P>(b) A survivor may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (<E T="03">e.g.</E>, the survivor may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations). The survivor may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.</P> <P>(c) A survivor must be alive to receive any payment under EEOICPA; there is no vested right to such payment.</P> <P>(d) Except as provided in paragraph (e) of this section, a survivor's claim is considered to be “filed” on the date that the survivor mails his or her claim to OWCP, as determined by postmark, or the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a survivor's claim under Part B of the Act be considered to be “filed” earlier than July 31, 2001, nor will a survivor's claim under Part E of the Act be considered to be “filed” earlier than October 30, 2000.</P> <P>(1) The survivor, or the person filing the claim on behalf of the survivor, shall affirm that the information provided on the Form EE-2 is true, and must inform OWCP of any subsequent changes to that information.</P> <P>(2) Except for the survivor of a covered uranium employee claiming under Part B of the Act, the survivor is responsible for submitting, or arranging for the submission of, evidence to OWCP that establishes that the employee upon whom the survivor's claim is based was eligible for such benefits, including medical evidence that establishes that the employee sustained an occupational illness or a covered illness. This required medical evidence is described in § 30.114 and does not refer to mere recitations by the survivor of symptoms the employee experienced that the survivor believes indicate that the employee sustained an occupational illness or a covered illness.</P> <P>(e) For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the survivor mailed his or her claim to DOE, as determined by postmark, or on the date that the claim was received by DOE, whichever is the earliest determinable date. However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.</P> <P>(f) A spouse or a child of a deceased DOE contractor employee or RECA section 5 uranium worker, who is not a covered spouse or covered child under Part E, may submit a written request to OWCP for a determination of whether that deceased DOE contractor employee or RECA section 5 uranium worker contracted a covered illness under section 7385s-4(d) of EEOICPA.</P> <P>(1) Any such request submitted pursuant to paragraph (f) of this section will not be considered a survivor's claim for benefits under Part E of the Act.</P> <P>(2) As part of its consideration of any request submitted pursuant to paragraph (f) of this section, OWCP will apply the eligibility criteria in subpart <PRTPAGE P="90"/>C of this part. However, the adjudicatory procedures contained in subpart D of this part will not apply to OWCP's consideration of such a request, and OWCP's response to the request will not constitute a final agency decision on entitlement to any benefits under EEOICPA.</P> </SECTION> <SECTION> <SECTNO>§ 30.102</SECTNO> <SUBJECT>In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?</SUBJECT> <P>(a) An employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits. Such claim must be based on an increase in the employee's minimum impairment rating attributable to the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP. OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits. However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness.</P> <P>(b) An employee previously awarded wage-loss benefits by OWCP may be eligible for additional wage-loss benefits for periods of wage-loss that were not addressed in a prior claim only if the employee had not reached his or her Social Security retirement age at the time of the prior award. OWCP will adjudicate claims filed on a yearly basis in connection with each succeeding calendar year for which qualifying wage-loss under Part E is alleged, as well as claims that aggregate calendar years for which qualifying wage-loss is alleged.</P> <P>(c) Employees should use Form EE-10 to claim for additional impairment or wage-loss benefits under Part E of EEOICPA.</P> <P>(1) The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on Form EE-10 is true, and must inform OWCP of any subsequent changes to that information.</P> <P>(2) The employee is responsible for submitting with any claim filed under this section, or arranging for the submission of, factual and medical evidence establishing that he or she experienced another calendar year of qualifying wage-loss, and/or medical evidence establishing that he or she has an increased minimum impairment rating, as appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 30.103</SECTNO> <SUBJECT>How does a claimant make sure that OWCP has the evidence necessary to process the claim?</SUBJECT> <P>(a) Claims and certain required submissions should be made on forms prescribed by OWCP. Persons submitting forms shall not modify these forms or use substitute forms.</P> <GPOTABLE CDEF="s10,r50" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Form No.</CHED> <CHED H="1">Title</CHED> </BOXHD> <ROW> <ENT I="01">(1) EE-1</ENT> <ENT>Claim for Benefits Under the Energy Employees Occupational Illness Compensation Program Act.</ENT> </ROW> <ROW> <ENT I="01">(2) EE-2</ENT> <ENT>Claim for Survivor Benefits Under the Energy Employees Occupational Illness Compensation Program Act.</ENT> </ROW> <ROW> <ENT I="01">(3) EE-3</ENT> <ENT>Employment History for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.</ENT> </ROW> <ROW> <ENT I="01">(4) EE-4</ENT> <ENT>Employment History Affidavit for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.</ENT> </ROW> </GPOTABLE> <P>(b) Copies of the forms listed in this section are available for public inspection at the Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. They may also be obtained from OWCP district offices and on the Internet at <E T="03">http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.</E> </P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Verification of Alleged Employment</HD> <SECTION> <SECTNO>§ 30.105</SECTNO> <SUBJECT>What must DOE do after an employee or survivor files a claim?</SUBJECT> <P>(a) After it receives a claim for benefits described in §§ 30.100 or 30.101, OWCP may request that DOE verify the employment history provided by the claimant. Upon receipt of such a request, DOE will complete Form EE-5 as soon as possible and transmit the completed form to OWCP. On this form, DOE will certify either that it concurs with the employment history provided by the claimant, that it disagrees with such history, or that it can neither concur nor disagree after making a reasonable search of its records and also making a reasonable effort to <PRTPAGE P="91"/>locate pertinent records not already in its possession.</P> <P>(b) Claims for additional impairment or wage-loss benefits under Part E of the Act described in § 30.102 will not require any verification of employment by DOE, since OWCP will have made any required findings on this particular issue when it adjudicated the employee's initial claim for benefits.</P> </SECTION> <SECTION> <SECTNO>§ 30.106</SECTNO> <SUBJECT>Can OWCP request employment verification from other sources?</SUBJECT> <P>(a) For most claims filed under EEOICPA, DOE has access to sufficient factual information to enable it to fulfill its obligations described in § 30.105(a). However, in instances where it lacks such information, DOE may arrange for other entities to provide OWCP with the information necessary to verify an employment history submitted as part of a claim. These other entities may consist of either current or former DOE contractors and subcontractors, atomic weapons employers, beryllium vendors, or other entities with access to relevant employment information.</P> <P>(b) On its own initiative, OWCP may also arrange for entities other than DOE to perform the employment verification duties described in § 30.105(a).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence and Burden of Proof</HD> <SECTION> <SECTNO>§ 30.110</SECTNO> <SUBJECT>Who is entitled to compensation under the Act?</SUBJECT> <P>(a) Under Part B of EEOICPA, compensation is payable to the following covered Part B employees, or their survivors:</P> <P>(1) A “covered beryllium employee” (as described in § 30.205(a)) with a covered beryllium illness (as defined in § 30.5(o)) who was exposed to beryllium in the performance of duty (in accordance with § 30.206).</P> <P>(2) A “covered Part B employee with cancer” (as described in § 30.210(a)).</P> <P>(3) A “covered Part B employee with chronic silicosis” (as described in § 30.220).</P> <P>(4) A “covered uranium employee” (as defined in § 30.5(s)).</P> <P>(b) Under Part E of EEOICPA, compensation is payable to a “covered Part E employee” (as defined in § 30.5(p)), or his or her survivors.</P> <P>(c) Any claim that does not meet all of the criteria for at least one of these categories, as set forth in the regulations in this part, must be denied.</P> <P>(d) All claims for benefits under the Act must comply with the claims procedures and requirements set forth in subpart B of this part before any payment can be made from the Fund.</P> </SECTION> <SECTION> <SECTNO>§ 30.111</SECTNO> <SUBJECT>What is the claimant's responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?</SUBJECT> <P>(a) Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. Subject to the exceptions expressly provided in the Act and the regulations in this part, the claimant also bears the burden of providing to OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.</P> <P>(b) In the event that the claim lacks required information or supporting documentation, OWCP will notify the claimant of the deficiencies and provide him or her an opportunity for correction of the deficiencies.</P> <P>(c) Written affidavits or declarations, subject to penalty for perjury, by the employee, survivor or any other person, will be accepted as evidence of employment history and survivor relationship for purposes of establishing eligibility and may be relied on in determining whether a claim meets the requirements of the Act for benefits if, and only if, such person attests that due diligence was used to obtain records in support of the claim, but that no records exist.</P> <P>(d) A claimant will not be entitled to any presumption otherwise provided for in these regulations if substantial <PRTPAGE P="92"/>evidence exists that rebuts the existence of the fact that is the subject of the presumption. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. When such evidence exists, the claimant shall be notified and afforded the opportunity to submit additional written medical documentation or records.</P> </SECTION> <SECTION> <SECTNO>§ 30.112</SECTNO> <SUBJECT>What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?</SUBJECT> <P>(a) Evidence of covered employment may include: employment records; pay stubs; tax returns; Social Security records; and written affidavits or declarations, subject to penalty of perjury, by the employee, survivor or any other person. However, no one document is required to establish covered employment and a claimant is not required to submit all of the evidence listed above. A claimant may submit other evidence not listed above to establish covered employment. To be acceptable as evidence, all documents and records must be legible. OWCP will accept photocopies, certified copies, and original documents and records.</P> <P>(b) Pursuant to §§ 30.105 and/or 30.106, DOE or another entity verifying alleged employment shall certify that it concurs with the employment information provided by the claimant, that it disagrees with the information provided by the claimant, or, after a reasonable search of its records and a reasonable effort to locate pertinent records not already in its possession, it can neither concur nor disagree with the information provided by the claimant.</P> <P>(1) If DOE or another entity certifies that it concurs with the employment information provided by the claimant, then the criterion for covered employment will be established.</P> <P>(2) If DOE or another entity certifies that it disagrees with the information provided by the claimant or that after a reasonable search of its records and a reasonable effort to locate pertinent records not already in its possession it can neither concur nor disagree with the information provided by the claimant, OWCP will evaluate the evidence submitted by the claimant to determine whether the claimant has established covered employment by a preponderance of the evidence. OWCP may request additional evidence from the claimant to demonstrate that the claimant has met the criterion for covered employment. Nothing in this section shall be construed to limit OWCP's ability to require additional documentation.</P> <P>(3) If the only evidence of covered employment is a self-serving affidavit and DOE or another entity either disagrees with the assertion of covered employment or cannot concur or disagree with the assertion of covered employment, then OWCP may reject the claim based upon a lack of evidence of covered employment.</P> </SECTION> <SECTION> <SECTNO>§ 30.113</SECTNO> <SUBJECT>What are the requirements for written medical documentation, contemporaneous records, and other records or documents?</SUBJECT> <P>(a) All written medical documentation, contemporaneous records, and other records or documents submitted by an employee or his or her survivor to prove any criteria provided for in these regulations must be legible. OWCP will accept photocopies, certified copies, and original documents and records.</P> <P>(b) To establish eligibility, the employee or his or her survivor may be required to provide, where appropriate, additional contemporaneous records to the extent they exist or an authorization to release additional contemporaneous records or a statement by the custodian(s) of the record(s) certifying that the requested record(s) no longer exist. Nothing in this section shall be construed to limit OWCP's ability to require additional documentation.</P> <P>(c) If a claimant submits a certified statement, by a person with knowledge of the facts, that the medical records containing a diagnosis and date of diagnosis of a covered medical condition no longer exist, then OWCP may consider other evidence to establish a diagnosis and date of diagnosis of a covered medical condition. However, if the certified statement is a self-serving document, OWCP may reject the claim based upon a lack of evidence of a covered medical condition.</P> </SECTION> <SECTION> <PRTPAGE P="93"/> <SECTNO>§ 30.114</SECTNO> <SUBJECT>What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?</SUBJECT> <P>(a) Evidence of a compensable medical condition may include: a physician's report, laboratory reports, hospital records, death certificates, x-rays, magnetic resonance images or reports, computer axial tomography or other imaging reports, lymphocyte proliferation testings, beryllium patch tests, pulmonary function or exercise testing results, pathology reports including biopsy results and other medical records. A claimant is not required to submit all of the evidence listed in this paragraph. A claimant may submit other evidence that is not listed in this paragraph to establish a compensable medical condition. Nothing in this section shall be construed to limit OWCP's ability to require additional documentation.</P> <P>(b) The medical evidence submitted will be used to establish the diagnosis and the date of diagnosis of the compensable medical condition.</P> <P>(1) For covered beryllium illnesses, additional medical evidence, as set forth in § 30.207, is required to establish a beryllium illness.</P> <P>(2) For chronic silicosis, additional medical evidence, as set forth in § 30.222, is required to establish chronic silicosis.</P> <P>(3) For consequential injuries, illnesses, impairments or diseases, the claimant must also submit a physician's fully rationalized medical report showing a causal relationship between the resulting injury, illness, impairment or disease and the compensable medical condition.</P> <P>(c) OWCP will evaluate the medical evidence in accordance with recognized and accepted diagnostic criteria used by physicians to determine whether the claimant has established the medical condition for which compensation is sought in accordance with the requirements of the Act.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Procedures for Certain Radiogenic Cancer Claims</HD> <SECTION> <SECTNO>§ 30.115</SECTNO> <SUBJECT>For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?</SUBJECT> <P>(a) Other than claims for a non-radiogenic cancer listed by HHS at 42 CFR 81.30, or claims seeking benefits under Part E of the Act that have previously been accepted under section 7384u of the Act, or claims previously accepted under Part B pursuant to the Special Exposure Cohort provisions, OWCP will forward the claim package (including, but not limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) to HHS for dose reconstruction. At that point in time, development of the claim by OWCP may be suspended.</P> <P>(1) This package will include OWCP's initial findings in regard to the diagnosis and date of diagnosis of the employee, as well as any employment history compiled by OWCP (including information such as dates and locations worked, and job titles). The package, however, will not constitute either a recommended or final decision by OWCP on the claim.</P> <P>(2) HHS will then reconstruct the radiation dose of the employee, after such further development of the employment history as it may deem necessary, and provide OWCP, DOE and the claimant with the final dose reconstruction report. The final dose reconstruction record will be delivered to OWCP with the final dose reconstruction report and to the claimant upon request.</P> <P>(b) Following its receipt of the reconstructed dose from HHS, OWCP will resume its adjudication of the cancer claim and consider whether the claimant has met the eligibility criteria set forth in subpart C of this part. However, during the period before it receives a reconstructed dose from HHS, OWCP may continue to develop other aspects of a claim, to the extent that it deems such development to be appropriate.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="94"/> <HD SOURCE="HED">Subpart C—Eligibility Criteria</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 30.200</SECTNO> <SUBJECT>What is the scope of this subpart?</SUBJECT> <P>The regulations in this subpart describe the criteria for eligibility for benefits for claims under Part B of EEOICPA relating to covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t of the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and 7384t of the Act; and for claims relating to covered uranium employees under sections 7384t and 7384u of the Act. These regulations also describe the criteria for eligibility for benefits for claims under Part E of EEOICPA relating to covered illnesses under sections 7385s-4 and 7385s-5 of the Act. This subpart describes the type and extent of evidence that will be necessary to establish the criteria for eligibility for compensation for these illnesses.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA</HD> <SECTION> <SECTNO>§ 30.205</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B of EEOICPA?</SUBJECT> <P>To establish eligibility for benefits under this section, the claimant must establish the criteria set forth in both paragraphs (a) and (b) of this section:</P> <P>(a) The employee is a covered beryllium employee only if the criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and (a)(3) of this section, are established:</P> <P>(1) The employee is a “current or former employee as defined in 5 U.S.C. 8101(1)” (see § 30.5(t) of this part) who may have been exposed to beryllium at a DOE facility or at a facility owned, operated, or occupied by a beryllium vendor; or</P> <P>(2) The employee is a current or former civilian employee of:</P> <P>(i) Any entity that contracted with the DOE to provide management and operation, management and integration, or environmental remediation of a DOE facility; or</P> <P>(ii) Any contractor or subcontractor that provided services, including construction and maintenance, at such a facility; or</P> <P>(iii) A beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the DOE, including periods during which environmental remediation of a vendor's facility was undertaken pursuant to a contract between the vendor and DOE; and</P> <P>(3) The civilian employee was exposed to beryllium in the performance of duty by establishing that he or she was, during a period when beryllium dust, particles, or vapor may have been present at such a facility:</P> <P>(i) Employed at a DOE facility (as defined in § 30.5(x) of this part); or</P> <P>(ii) Present at a DOE facility, or at a facility owned, operated, or occupied by a beryllium vendor, because of his or her employment by the United States, a beryllium vendor, a contractor or subcontractor of a beryllium vendor, or a contractor or subcontractor of the DOE. Under this paragraph, exposure to beryllium in the performance of duty can be established whether or not the beryllium that may have been present at such facility was produced or processed for sale to, or use by, DOE.</P> <P>(b) The employee has one of the following:</P> <P>(1) Beryllium sensitivity as established by an abnormal beryllium LPT performed on either blood or lung lavage cells.</P> <P>(2) Established chronic beryllium disease.</P> <P>(3) Any injury, illness, impairment, or disability sustained as a consequence of the conditions specified in paragraphs (b)(1) and (2) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 30.206</SECTNO> <SUBJECT>How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?</SUBJECT> <P>(a) Proof of employment at or physical presence at a DOE facility, or a facility owned, operated, or occupied by a beryllium vendor, because of employment by the United States, a beryllium <PRTPAGE P="95"/>vendor, or a contractor or subcontractor of a beryllium vendor during a period when beryllium dust, particles, or vapor may have been present at such a facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was employed or present at a covered facility and the time period of such employment or presence.</P> <P>(b) If the evidence shows that exposure occurred while the employee was employed or present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.</P> <P>(c) If the evidence shows that exposure occurred while the employee was employed or present at a facility that would have to be designated by DOE as a beryllium vendor under section 7384m of the Act to be a covered facility, and that the facility has not been so designated, OWCP will deny the claim on the ground that the facility is not a covered facility.</P> <P>(d) Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:</P> <P>(1) Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.</P> <P>(2) Records or documents created by any vendor, processor, or producer of beryllium or related products designated as a beryllium vendor by the DOE in accordance with section 7384m of the Act.</P> <P>(3) Records or documents created as a by product of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.</P> </SECTION> <SECTION> <SECTNO>§ 30.207</SECTNO> <SUBJECT>How does a claimant prove a diagnosis of a beryllium disease covered under Part B?</SUBJECT> <P>(a) Written medical documentation is required in all cases to prove that the employee developed a covered beryllium illness. Proof that the employee developed a covered beryllium illness must be made by using the procedures outlined in paragraphs (b), (c), or (d) of this section.</P> <P>(b) Beryllium sensitivity or sensitization is established with an abnormal LPT performed on either blood or lung lavage cells.</P> <P>(c) Chronic beryllium disease is established in the following manner:</P> <P>(1) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (b) of this section), together with lung pathology consistent with chronic beryllium disease, including the following:</P> <P>(i) A lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;</P> <P>(ii) A computerized axial tomography scan showing changes consistent with chronic beryllium disease; or</P> <P>(iii) Pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.</P> <P>(2) For diagnoses before January 1, 1993, the presence of the following:</P> <P>(i) Occupational or environmental history, or epidemiologic evidence of beryllium exposure; and</P> <P>(ii) Any three of the following criteria:</P> <P>(A) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.</P> <P>(B) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.</P> <P>(C) Lung pathology consistent with chronic beryllium disease.</P> <P>(D) Clinical course consistent with a chronic respiratory disorder.</P> <P>(E) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).</P> <P>(d) An injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that <PRTPAGE P="96"/>shows the relationship between the injury, illness, impairment or disability and the beryllium sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease, is sufficient in itself to prove a causal relationship.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA</HD> <SECTION> <SECTNO>§ 30.210</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits relating to radiogenic cancer?</SUBJECT> <P>(a) To establish eligibility for benefits for radiogenic cancer under Part B of EEOICPA, an employee or his or her survivor must show that:</P> <P>(1) The employee has been diagnosed with one of the forms of cancer specified in § 30.5(ff) of this part; and</P> <P>(i) Is a member of the Special Exposure Cohort (as described in § 30.214(a) of this subpart) who, as a civilian DOE employee or civilian DOE contractor employee, contracted the specified cancer after beginning employment at a DOE facility; or</P> <P>(ii) Is a member of the Special Exposure Cohort (as described in § 30.214(a) of this subpart) who, as a civilian atomic weapons employee, contracted the specified cancer after beginning employment at an atomic weapons employer facility (as defined in § 30.5(e)); or</P> <P>(2) The employee has been diagnosed with cancer; and</P> <P>(i)(A) Is/was a civilian DOE employee who contracted that cancer after beginning employment at a DOE facility; or</P> <P>(B) Is/was a civilian DOE contractor employee who contracted that cancer after beginning employment at a DOE facility; or</P> <P>(C) Is/was a civilian atomic weapons employee who contracted that cancer after beginning employment at an atomic weapons employer facility; and</P> <P>(ii) The cancer was at least as likely as not related to the employment at the DOE facility or atomic weapons employer facility; or</P> <P>(3) The employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the accepted cancer.</P> <P>(b)(1) To establish eligibility for benefits for radiogenic cancer under Part E of EEOICPA, an employee or his or her survivor must show that:</P> <P>(i) The employee has been diagnosed with cancer; and</P> <P>(A) Is/was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and</P> <P>(B) The cancer was at least as likely as not related to exposure to a toxic substance of a radioactive nature at a DOE facility or a RECA section 5 facility; and</P> <P>(C) It is at least as likely as not that the exposure to such toxic substance(s) was related to employment at a DOE facility or a RECA section 5 facility; or</P> <P>(ii) The employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the accepted cancer.</P> <P>(2) Eligibility for benefits for radiogenic cancer under Part E in a claim that has previously been accepted under Part B pursuant to the Special Exposure Cohort provisions is described in § 30.230(a) of these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 30.211</SECTNO> <SUBJECT>How does a claimant establish that the employee has or had contracted cancer?</SUBJECT> <P>A claimant establishes that the employee has or had contracted a specified cancer (as defined in § 30.5(ff)) or other cancer with medical evidence that sets forth an explicit diagnosis of cancer and the date on which that diagnosis was first made.</P> </SECTION> <SECTION> <SECTNO>§ 30.212</SECTNO> <SUBJECT>How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility?</SUBJECT> <P>(a) Proof of employment by the DOE or a DOE contractor at a DOE facility, <PRTPAGE P="97"/>or by an atomic weapons employer at an atomic weapons employer facility, or at a RECA section 5 facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment.</P> <P>(b)(1) Except as provided in paragraph (b)(2) of this section, if the evidence shows that exposure occurred while the employee was employed at a facility during a time frame that is outside the relevant period indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant period for that facility.</P> <P>(2) OWCP may choose not to request that DOE provide additional information on an atomic weapons employer facility that NIOSH reported had a potential for significant residual radiation contamination in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, if the evidence referred to in paragraph (a) of this section establishes that the employee was employed at that facility during a period when NIOSH reported that it had a potential for significant residual radiation contamination.</P> <P>(c) If the evidence shows that exposure occurred while the employee was employed by an employer that would have to be designated by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a covered employer, and that the employer has not been so designated, OWCP will deny the claim on the ground that the employer is not a covered atomic weapons employer.</P> <P>(d) Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:</P> <P>(1) Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.</P> <P>(2) Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.</P> </SECTION> <SECTION> <SECTNO>§ 30.213</SECTNO> <SUBJECT>How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility?</SUBJECT> <P>(a) HHS, with the advice of the Advisory Board on Radiation and Worker Health, has issued regulatory guidelines at 42 CFR part 81 that OWCP uses to determine whether radiogenic cancers claimed under Parts B and E were at least as likely as not related to employment at a DOE facility, an atomic weapons employer facility, or a RECA section 5 facility, as appropriate. Persons should consult HHS's regulations for information regarding the factual evidence that will be considered by OWCP, in addition to the employee's radiation dose reconstruction that will be provided to OWCP by HHS, in making this particular factual determination.</P> <P>(b) HHS's regulations satisfy the legal requirements in section 7384n(c) of the Act, which also sets out OWCP's obligation to use them in its adjudication of claims for radiogenic cancer filed under Part B of the Act, and provide the factual basis for OWCP to determine if the “probability of causation” (PoC) that an employee's cancer was sustained in the performance of duty is 50% or greater (<E T="03">i.e.</E>, it is “at least as likely as not” causally related to employment), as required under section 7384n(b).</P> <P>(c) OWCP also uses HHS's regulations when it makes the determination required by section 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if “it is at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the employee's radiogenic cancer claimed under Part E. For cancer claims under Part E, if the PoC is less <PRTPAGE P="98"/>than 50% and the claimant alleges that the employee was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.214</SECTNO> <SUBJECT>How does a claimant establish that the employee is a member of the Special Exposure Cohort?</SUBJECT> <P>(a) For purposes of establishing eligibility as a member of the Special Exposure Cohort (SEC) under § 30.210(a)(1), the employee must have been a DOE employee, a DOE contractor employee, or an atomic weapons employee who meets any of the following requirements:</P> <P>(1) The employee was so employed for a number of workdays aggregating at least 250 workdays before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak Ridge, Tennessee; and during such employment:</P> <P>(i) Was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee's body to radiation; or</P> <P>(ii) Worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.</P> <P>(2) The employee was so employed before January 1, 1974, by DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.</P> <P>(3) The employee is a member of a group or class of employees subsequently designated as additional members of the SEC by HHS.</P> <P>(b) For purposes of satisfying the 250 workday requirement of paragraph (a)(1) of this section, the claimant may aggregate the days of service at more than one gaseous diffusion plant.</P> <P>(c) Proof of employment by the DOE or a DOE contractor, or an atomic weapons employer, for the requisite time periods set forth in paragraph (a) of this section, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment. If the evidence shows that exposure occurred while the employee was employed by an employer that would have to be designated by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a covered employer, and that the employer has not been so designated, OWCP will deny the claim on the ground that the employer is not a covered atomic weapons employer.</P> <P>(d) Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:</P> <P>(1) Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.</P> <P>(2) Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.</P> </SECTION> <SECTION> <SECTNO>§ 30.215</SECTNO> <SUBJECT>How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?</SUBJECT> <P>An injury, illness, impairment or disease sustained as a consequence of a diagnosed cancer covered by the provisions of § 30.210 must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the cancer. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a cancer, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the cancer, is sufficient in itself to prove a causal relationship.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA</HD> <SECTION> <SECTNO>§ 30.220</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits relating to chronic silicosis?</SUBJECT> <P>To establish eligibility for benefits for chronic silicosis under Part B of <PRTPAGE P="99"/>EEOICPA, an employee or his or her survivor must show that:</P> <P>(a) The employee is a civilian DOE employee, or a civilian DOE contractor employee, who was present for a number of workdays aggregating at least 250 workdays during the mining of tunnels at a DOE facility (as defined in § 30.5(x)) located in Nevada or Alaska for tests or experiments related to an atomic weapon, and has been diagnosed with chronic silicosis (as defined in § 30.5(j)); or</P> <P>(b) The employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the accepted chronic silicosis.</P> </SECTION> <SECTION> <SECTNO>§ 30.221</SECTNO> <SUBJECT>How does a claimant prove exposure to silica in the performance of duty?</SUBJECT> <P>(a) Proof of the employee's employment and presence for the requisite days during the mining of tunnels at a DOE facility located in Nevada or Alaska for tests or experiments related to an atomic weapon may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and present at these sites and the time period(s) of such employment and presence.</P> <P>(b) If the evidence shows that exposure occurred while the employee was employed and present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.</P> <P>(c) Records from the following sources may be considered as evidence for purposes of establishing proof of employment or presence at a covered facility:</P> <P>(1) Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.</P> <P>(2) Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.</P> <P>(d) For purposes of satisfying the 250 workday requirement of § 30.220(a), the claimant may aggregate the days of service at more than one qualifying site.</P> </SECTION> <SECTION> <SECTNO>§ 30.222</SECTNO> <SUBJECT>How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease?</SUBJECT> <P>(a) A written diagnosis of the employee's chronic silicosis (as defined in § 30.5(j)) shall be made by a medical doctor and accompanied by one of the following:</P> <P>(1) A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or</P> <P>(2) Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or</P> <P>(3) Lung biopsy findings consistent with silicosis.</P> <P>(b) An injury, illness, impairment or disease sustained as a consequence of accepted chronic silicosis covered by the provisions of § 30.220(a) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the accepted chronic silicosis. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of accepted chronic silicosis, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the accepted chronic silicosis, is sufficient in itself to prove a causal relationship.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA</HD> <SECTION> <SECTNO>§ 30.225</SECTNO> <SUBJECT>What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees?</SUBJECT> <P>In order to be eligible for benefits under this section, the claimant must establish the criteria set forth in either <PRTPAGE P="100"/>paragraph (a) or paragraph (b) of this section:</P> <P>(a) The Attorney General has determined that the claimant is a covered uranium employee who is entitled to payment of $100,000 as compensation due under section 5 of RECA for a claim made under that statute (there is, however, no requirement that the claimant or surviving eligible beneficiary has actually received payment pursuant to RECA). If a deceased employee's survivor(s) has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to EEOICPA compensation in accordance with section 7384u(e) of the Act.</P> <P>(b) The covered uranium employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the medical condition for which he or she was determined to be entitled to payment of $100,000 as compensation due under section 5 of RECA.</P> </SECTION> <SECTION> <SECTNO>§ 30.226</SECTNO> <SUBJECT>How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease?</SUBJECT> <P>An injury, illness, impairment or disease sustained as a consequence of a medical condition covered by the provisions of § 30.225(a) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the accepted medical condition. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a medical condition covered by the provisions of § 30.225(a), nor the belief of the claimant that the injury, illness, impairment or disease was caused by such a condition, is sufficient in itself to prove a causal relationship.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Eligibility Criteria for Other Claims Under Part E of EEOICPA</HD> <SECTION> <SECTNO>§ 30.230</SECTNO> <SUBJECT>What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA?</SUBJECT> <P>To establish that an employee contracted a covered illness under Part E of the Act, the employee, or his or her survivor, must show one of the following:</P> <P>(a) That OWCP has determined under Part B of EEOICPA that the employee is a Department of Energy contractor employee as defined in § 30.5(w), and that he or she has been awarded compensation under that Part of the Act for an occupational illness;</P> <P>(b) That the Attorney General has determined that the employee is entitled to payment of $100,000 as compensation due under section 5 of RECA for a claim made under that statute (however, if a deceased employee's survivor has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to benefits under Part E of EEOICPA in accordance with section 7385s-3 of the Act);</P> <P>(c) That the Secretary of Energy has accepted a positive determination of a Physicians Panel that the employee sustained an illness or died due to exposure to a toxic substance at a DOE facility under former section 7385o of EEOICPA, or that the Secretary of Energy has found significant evidence contrary to a negative determination of a Physicians Panel; or</P> <P>(d)(1) That the employee is a civilian Department of Energy contractor employee as defined in § 30.5(w), or a civilian who was employed in a uranium mine or mill located in Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or Texas at any time during the period from January 1, 1942 through December 31, 1971, or was employed in the transport of uranium ore or vanadium-uranium ore from such a mine or mill during that same period, and that he or she:</P> <P>(i) Has been diagnosed with an illness; and</P> <P>(ii) That it is at least as likely as not that exposure to a toxic substance at a Department of Energy facility or at a RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the illness; and</P> <P>(iii) That it is at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility or a RECA section 5 facility, as appropriate.<PRTPAGE P="101"/> </P> <P>(2) In making the determination under paragraph (d)(1)(ii) of this section, OWCP will consider:</P> <P>(i) The nature, frequency and duration of exposure of the covered employee to the substance alleged to be toxic;</P> <P>(ii) Evidence of the carcinogenic or pathogenic properties of the alleged toxic substance to which the employee was exposed;</P> <P>(iii) An opinion of a qualified physician with expertise in treating, diagnosing or researching the illness claimed to be caused or aggravated by the alleged exposure; and</P> <P>(iv) Any other evidence that OWCP determines to have demonstrated relevance to the relation between a particular toxic substance and the claimed illness.</P> </SECTION> <SECTION> <SECTNO>§ 30.231</SECTNO> <SUBJECT>How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?</SUBJECT> <P>To establish employment-related exposure to a toxic substance at a Department of Energy facility or RECA section 5 facility as required by § 30.230(d), an employee, or his or her survivor(s), must prove that the employee was employed at such facility and that he or she was exposed to a toxic substance in the course of that employment.</P> <P>(a) Proof of employment may be established by any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment.</P> <P>(b) Proof of exposure to a toxic substance may be established by the submission of any appropriate document or information that is evidence that such substance was present at the facility in which the employee was employed and that the employee came into contact with such substance. OWCP site exposure matrices may be used to provide probative factual evidence that a particular substance was present at either a DOE facility or a RECA section 5 facility.</P> </SECTION> <SECTION> <SECTNO>§ 30.232</SECTNO> <SUBJECT>How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?</SUBJECT> <P>(a) To establish that the employee has been diagnosed with a covered illness as required by § 30.230(d), the employee, or his or her survivor(s), must provide the following:</P> <P>(1) The name and address of any licensed physician who is the source of a diagnosis based upon documented medical information that the employee has or had an illness and that the illness may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility or a RECA section 5 facility, as appropriate, and, to the extent practicable, a copy of the diagnosis and a summary of the information upon which the diagnosis is based; and</P> <P>(2) A signed medical release, authorizing the release of any diagnosis, medical opinion and medical records documenting the diagnosis or opinion that the employee has or had an illness and that the illness may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility or RECA section 5 facility, as appropriate; and</P> <P>(3) To the extent practicable and appropriate, an occupational history obtained by a physician, an occupational health professional, or a DOE-sponsored Former Worker Program (if such an occupational history is not reasonably available or is inadequate, and such history is deemed by OWCP to be needed for the fair adjudication of the claim, then OWCP may assist the claimant in developing this history); and</P> <P>(4) Any other information or materials deemed by OWCP to be necessary to provide reasonable evidence that the employee has or had an illness that may have arisen from exposure to a toxic substance while employed at a DOE facility or RECA section 5 facility, as appropriate.</P> <P>(b) The employee, or his or her survivor(s), may also submit to OWCP other evidence not described in paragraph (a) of this section showing that the employee has or had an illness that <PRTPAGE P="102"/>resulted from an exposure to a toxic substance during the course of employment at either a DOE facility or a RECA section 5 facility, as appropriate.</P> <P>(c) An injury, illness, impairment or disease sustained as a consequence of a covered illness (as defined in § 30.5(r)) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the covered illness. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a covered illness, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the covered illness, is sufficient in itself to prove a causal relationship.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Adjudicatory Process</HD> <SECTION> <SECTNO>§ 30.300</SECTNO> <SUBJECT>What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions?</SUBJECT> <P>OWCP district offices will issue recommended decisions with respect to claims for entitlement under Part B and/or Part E of EEOICPA that are filed pursuant to the regulations set forth in subpart B of this part. In circumstances where a claim is made for more than one benefit available under Part B and/or Part E of the Act, OWCP may issue a recommended decision on only part of that particular claim in order to adjudicate that portion of the claim as quickly as possible. Should this occur, OWCP will issue one or more recommended decisions on the deferred portions of the claim when the adjudication of those portions is completed. All recommended decisions granting and/or denying benefits under Part B and/or Part E of the Act will be forwarded to the Final Adjudication Branch (FAB). Claimants will be given an opportunity to object to all or part of the recommended decision before the FAB. The FAB will consider objections filed by a claimant and conduct a hearing, if requested to do so by the claimant, before issuing a final decision on the claim for entitlement.</P> </SECTION> <SECTION> <SECTNO>§ 30.301</SECTNO> <SUBJECT>May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?</SUBJECT> <P>(a) In connection with the adjudication of a claim under Part B of EEOICPA, an OWCP district office and/or a FAB reviewer may, at their own initiative, issue subpoenas for the attendance and testimony of witnesses, and for the production of books, electronic records, correspondence, papers or other relevant documents. Subpoenas will only be issued for documents if they are relevant and cannot be obtained by other means, and for witnesses only where oral testimony is the best way to ascertain the facts.</P> <P>(b) A claimant may also request a subpoena in connection with his or her claim under Part B of the Act, but such request may only be made to a FAB reviewer. No subpoenas will be issued at the request of the claimant under any other portion of the claims process. The decision to grant or deny such request is within the discretion of the FAB reviewer. To request a subpoena under this section, the requestor must:</P> <P>(1) Submit the request in writing and send it to the FAB reviewer as early as possible, but no later than 30 days (as evidenced by postmark, electronic marker or other objective date mark) after the date of the original hearing request;</P> <P>(2) Explain why the testimony or evidence is directly relevant and material to the issues in the case; and</P> <P>(3) Establish that a subpoena is the best method or opportunity to obtain such evidence because there are no other means by which the documents or testimony could have been obtained.</P> <P>(c) No subpoena will be issued for attendance of employees or contractors of OWCP or NIOSH acting in their official capacities as decision-makers or policy administrators. For hearings taking the form of a review of the written record, no subpoena for the appearance of witnesses will be considered.</P> <P>(d) The FAB reviewer will issue the subpoena under his or her own name. It may be served in person or by certified mail, return receipt requested, addressed to the person to be served at his or her last known principal place of business or residence. A decision to <PRTPAGE P="103"/>deny a subpoena requested by a claimant can only be challenged as part of a request for reconsideration of any adverse decision of the FAB which results from the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 30.302</SECTNO> <SUBJECT>Who pays the costs associated with subpoenas?</SUBJECT> <P>(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.</P> <P>(b) Where OWCP asked that the witness submit evidence into the case record or asked that the witness attend, OWCP shall pay the fees and mileage. Where the claimant asked for the subpoena, and where the witness submitted evidence into the record at the request of the claimant, the claimant shall pay the fees and mileage.</P> </SECTION> <SECTION> <SECTNO>§ 30.303</SECTNO> <SUBJECT>What information may OWCP request in connection with a claim under Part E of EEOICPA?</SUBJECT> <P>At any time during the course of development of a claim for benefits under Part E, OWCP may determine that it needs relevant information to adjudicate the claim. When this occurs, and at the request of OWCP, DOE and/or any contractor who employed a Department of Energy contractor employee must provide to OWCP information or documents in response to the request in connection with a claim under Part E of EEOICPA.</P> <P>(a) The party to whom the request is made must respond to OWCP within 90 days of the request with either:</P> <P>(1) The requested information or documents; or</P> <P>(2) A sworn statement that a good faith search for the requested information or documents was conducted, and that the information or documents could not be located.</P> <P>(b) DOE and/or the DOE contractor who employed a Department of Energy contractor employee must query third parties under its control to acquire the requested information or documents.</P> <P>(c) In providing the requested information or documents, DOE and/or the DOE contractor who employed a DOE contractor employee must preserve the current organization of the requested information or documents, and must provide such description and indexing of the requested information or documents as OWCP considers appropriate to facilitate their use by OWCP.</P> <P>(d) Information or document requests may include, but are not limited to, requests for records, files and other data, whether paper, electronic, imaged or otherwise, developed, acquired or maintained by DOE or the DOE contractor who employed a DOE contractor employee. Such information or documents may include records, files and data on facility industrial hygiene, employment of individuals or groups, exposure and medical records, and claims applications.</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Recommended Decisions on Claims</HD> <SECTION> <SECTNO>§ 30.305</SECTNO> <SUBJECT>How does OWCP determine entitlement to EEOICPA compensation?</SUBJECT> <P>(a) In reaching a recommended decision with respect to EEOICPA compensation, OWCP considers the claim presented by the claimant, the factual and medical evidence of record, the dose reconstruction report calculated by HHS (if any), any report submitted by DOE and the results of such investigation as OWCP may deem necessary.</P> <P>(b) The OWCP claims staff applies the law, the regulations and its procedures when it evaluates the medical evidence and the facts as reported or obtained upon investigation.</P> </SECTION> <SECTION> <SECTNO>§ 30.306</SECTNO> <SUBJECT>What does the recommended decision contain?</SUBJECT> <P>The recommended decision shall contain findings of fact and conclusions of law. The recommended decision may accept or reject the claim in its entirety, or it may accept or reject a portion of the claim presented. It is accompanied by a notice of the claimant's right to file objections with, and request a hearing before, the FAB.</P> </SECTION> <SECTION> <SECTNO>§ 30.307</SECTNO> <SUBJECT>To whom is the recommended decision sent?</SUBJECT> <P>(a) A copy of the recommended decision will be mailed to the claimant's last known address and to the claimant's designated representative before <PRTPAGE P="104"/>OWCP, if any. Notification to either the claimant or the representative will be considered notification to both parties.</P> <P>(b) At the same time it issues a recommended decision on a claim, the OWCP district office will forward the record of such claim to the FAB. Any new evidence submitted to the district office following the issuance of the recommended decision will also be forwarded to the FAB for consideration.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings and Final Decisions on Claims</HD> <SECTION> <SECTNO>§ 30.310</SECTNO> <SUBJECT>What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?</SUBJECT> <P>(a) Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS's reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired. This written statement should be filed with the FAB at the address indicated in the notice accompanying the recommended decision.</P> <P>(b) For purposes of determining whether the written statement referred to in paragraph (a) of this section has been timely filed with the FAB, the statement will be considered to be “filed” on the date that the claimant mails it to the FAB, as determined by postmark, or on the date that such written statement is actually received by the FAB, whichever is the earliest determinable date.</P> </SECTION> <SECTION> <SECTNO>§ 30.311</SECTNO> <SUBJECT>What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?</SUBJECT> <P>(a) If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, the FAB may issue a final decision accepting the recommendation of the district office as provided in § 30.316.</P> <P>(b) If the recommended decision accepts all or part of a claim for compensation, the FAB may issue a final decision at any time after receiving written notice from the claimant that he or she waives any objection to all or part of the recommended decision.</P> </SECTION> <SECTION> <SECTNO>§ 30.312</SECTNO> <SUBJECT>What will the FAB do if the claimant objects to the recommended decision but does not request a hearing?</SUBJECT> <P>If the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record. If the claimant only objects to part of the recommended decision, the FAB may issue a final decision accepting the remaining part of the recommendation of the district office without first reviewing the written record (see § 30.316).</P> </SECTION> <SECTION> <SECTNO>§ 30.313</SECTNO> <SUBJECT>How is a review of the written record conducted?</SUBJECT> <P>(a) The FAB reviewer will consider the written record forwarded by the district office and any additional evidence and/or argument submitted by the claimant. The reviewer may also conduct whatever investigation is deemed necessary.</P> <P>(b) The claimant should submit, with his or her written statement that objects to the recommended decision, all evidence or argument that he or she wants to present to the reviewer. However, evidence or argument may be submitted at any time up to the date specified by the reviewer for the submission of such evidence or argument.</P> <P>(c) Any objection that is not presented to the FAB reviewer, including any objection to HHS's reconstruction of the radiation dose to which the employee was exposed (if any), whether or not the pertinent issue was previously presented to the district office, is deemed waived for all purposes.</P> </SECTION> <SECTION> <SECTNO>§ 30.314</SECTNO> <SUBJECT>How is a hearing conducted?</SUBJECT> <P>(a) The FAB reviewer retains complete discretion to set the time and place of the hearing, including the amount of time allotted for the hearing, considering the issues to be resolved. At the discretion of the reviewer, the hearing may be conducted by telephone or teleconference. As part <PRTPAGE P="105"/>of the hearing process, the FAB reviewer will consider the written record forwarded by the district office and any additional evidence and/or argument submitted by the claimant. The reviewer may also conduct whatever investigation is deemed necessary.</P> <P>(1) The FAB reviewer will try to set the hearing at a place that is within commuting distance of the claimant's residence, but will not be able to do so in all cases. Therefore, for reasons of economy, the claimant may be required to travel a roundtrip distance of up to 200 miles to attend the hearing.</P> <P>(2) In unusual circumstances, the FAB reviewer may set a place for the hearing that is more than 200 miles roundtrip from the claimant's residence. However, in that situation, OWCP will reimburse the claimant for reasonable and necessary travel expenses incurred to attend the hearing if he or she submits a written reimbursement request that documents such expenses.</P> <P>(b) Unless otherwise directed in writing by the claimant, the FAB reviewer will mail a notice of the time and place of the hearing to the claimant and any representative at least 30 days before the scheduled hearing date. If the claimant only objects to part of the recommended decision, the FAB reviewer may issue a final decision accepting the remaining part of the recommendation of the district office without first holding a hearing (see § 30.316). Any objection that is not presented to the FAB reviewer, including any objection to HHS's reconstruction of the radiation dose to which the employee was exposed (if any), whether or not the pertinent issue was previously presented to the district office, is deemed waived for all purposes.</P> <P>(c) The hearing is an informal process, and the reviewer is not bound by common law or statutory rules of evidence, or by technical or formal rules of procedure. The reviewer may conduct the hearing in such manner as to best ascertain the rights of the claimant. During the hearing process, the claimant may state his or her arguments and present new written evidence and/or testimony in support of the claim.</P> <P>(d) Testimony at hearings is recorded, then transcribed and placed in the record. Oral testimony shall be made under oath.</P> <P>(e) The FAB reviewer will furnish a transcript of the hearing to the claimant, who has 20 days from the date it is sent to submit any comments to the reviewer.</P> <P>(f) The claimant will have 30 days after the hearing is held to submit additional evidence or argument, unless the reviewer, in his or her sole discretion, grants an extension. Only one such extension may be granted.</P> <P>(g) The reviewer determines the conduct of the hearing and may terminate the hearing at any time he or she determines that all relevant evidence has been obtained, or because of misbehavior on the part of the claimant and/or representative at or near the place of the oral presentation.</P> </SECTION> <SECTION> <SECTNO>§ 30.315</SECTNO> <SUBJECT>May a claimant postpone a hearing?</SUBJECT> <P>(a) The FAB will entertain any reasonable request for scheduling the time and place of the hearing, but such requests should be made at the time that the hearing is requested. Scheduling is at the discretion of the FAB, and is not reviewable. In most instances, once the hearing has been scheduled and appropriate written notice has been mailed, it cannot be postponed at the claimant's request for any reason except those stated in paragraph (b) of this section, unless the FAB reviewer can reschedule the hearing on the same docket (that is, during the same hearing trip). If a request to postpone a scheduled hearing does not meet one of the tests of paragraph (b) of this section and cannot be accommodated on the same docket, no further opportunity for a hearing will be provided. Instead, the FAB will consider the claimant's objections by means of a review of the written record. In the alternative, a teleconference may be substituted for the hearing at the discretion of the reviewer.</P> <P>(b) Where the claimant or the representative appointed by the claimant in accordance with § 30.600 of this part has a medical reason that prevents attendance at the hearing, or where the <PRTPAGE P="106"/>death or illness of the claimant's parent , spouse, or child prevents the claimant from attending the hearing as scheduled, a postponement may be granted in the discretion of the FAB if the claimant or the representative provides at least 24 hours notice and a reasonable explanation supporting his or her inability to attend the scheduled hearing.</P> <P>(c) At any time after requesting a hearing, the claimant can request a change to a review of the written record by making a written request to the FAB. Once such a change is made, no further opportunity for a hearing will be provided.</P> </SECTION> <SECTION> <SECTNO>§ 30.316</SECTNO> <SUBJECT>How does the FAB issue a final decision on a claim?</SUBJECT> <P>(a) If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part (see §§ 30.311, 30.312 and 30.314(b)).</P> <P>(b) If the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.</P> <P>(c) Any recommended decision (or part thereof) that is pending either a hearing or a review of the written record for more than one year from the date the FAB received the written statement described in § 30.310(a), or the date the Director reopened the claim for issuance of a new final decision pursuant to § 30.320(a), shall be considered a final decision of the FAB on the one-year anniversary of such date. Any recommended decision described in § 30.311 that is pending at the FAB for more than one year from the date that the period of time described in § 30.310 expired shall be considered a final decision of the FAB on the one-year anniversary of such date.</P> <P>(d) The decision of the FAB, whether issued pursuant to paragraph (a), (b) or (c) of this section, shall be final upon the date of issuance of such decision, unless a timely request for reconsideration under § 30.319 has been filed.</P> <P>(e) A copy of the final decision of the FAB will be mailed to the claimant's last known address and to the claimant's designated representative before OWCP, if any. Notification to either the claimant or the representative will be considered notification to both parties.</P> </SECTION> <SECTION> <SECTNO>§ 30.317</SECTNO> <SUBJECT>Can the FAB request a further response from the claimant or return a claim to the district office?</SUBJECT> <P>At any time before the issuance of its final decision, the FAB may request that the claimant submit additional evidence or argument, or return the claim to the district office for further development and/or issuance of a newly recommended decision without issuing a final decision, whether or not requested to do so by the claimant.</P> </SECTION> <SECTION> <SECTNO>§ 30.318</SECTNO> <SUBJECT>Can the FAB consider objections to HHS's reconstruction of a radiation dose or to the guidelines OWCP uses to determine if a claimed cancer was at least as likely as not related to employment?</SUBJECT> <P>(a) If the claimant objects to HHS's reconstruction of the radiation dose to which the employee was exposed, the FAB will evaluate the factual findings upon which HHS based its dose reconstruction. If these factual findings do not appear to be supported by substantial evidence, the claim will be returned to the district office for referral to HHS for further consideration.</P> <P>(b) The methodology used by HHS in arriving at reasonable estimates of the radiation doses received by an employee, established by regulations issued by HHS at 42 CFR part 82, is binding on the FAB. The FAB reviewer may determine, however, that objections concerning the application of that methodology should be considered by HHS and may return the case to the district office for referral to HHS for such consideration.</P> <P>(c) The methodology that OWCP uses to determine if a claimed cancer was at least as likely as not related to employment at a DOE facility, an atomic weapons employer facility, or a RECA <PRTPAGE P="107"/>section 5 facility, established by regulations issued by HHS at 42 CFR part 81, is also binding on the FAB (see § 30.213). However, since OWCP applies this methodology when it makes these determinations, the FAB reviewer may consider objections to the manner in which OWCP applied HHS's regulatory guidelines.</P> </SECTION> <SECTION> <SECTNO>§ 30.319</SECTNO> <SUBJECT>May a claimant request reconsideration of a final decision of the FAB?</SUBJECT> <P>(a) A claimant may request reconsideration of a final decision of the FAB by filing a written request with the FAB within 30 days from the date of issuance of such decision. If a timely request for reconsideration is made, the decision in question will no longer be considered “final” under § 30.316(d).</P> <P>(b) For purposes of determining whether the written request referred to in paragraph (a) of this section has been timely filed with the FAB, the request will be considered to be “filed” on the date that the claimant mails it to the FAB, as determined by postmark, or on the date that such written request is actually received by the FAB, whichever is the earliest determinable date.</P> <P>(c) A hearing is not available as part of the reconsideration process. If the FAB grants the request for reconsideration, it will consider the written record of the claim again and issue a new final decision on the claim. A new final decision that is issued after the FAB grants a request for reconsideration will be “final” upon the date of issuance of such new decision.</P> <P>(1) Instead of issuing a new final decision after granting a request for reconsideration, the FAB may return the claim to the district office for further development as provided in § 30.317.</P> <P>(2) If the FAB denies the request for reconsideration, the FAB decision that formed the basis for the request will be considered “final” upon the date the request is denied, and no further requests for reconsideration of that particular final decision of the FAB will be entertained.</P> <P>(d) A claimant may not seek judicial review of a decision on his or her claim under EEOICPA until OWCP's decision on the claim is final pursuant to either § 30.316(d) (for claims in which no request for reconsideration was filed with the FAB) or paragraph (c) of this section (for claims in which a request for reconsideration was filed with the FAB).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reopening Claims</HD> <SECTION> <SECTNO>§ 30.320</SECTNO> <SUBJECT>Can a claim be reopened after the FAB has issued a final decision?</SUBJECT> <P>(a) At any time after the FAB has issued a final decision pursuant to § 30.316, and without regard to whether new evidence or information is presented or obtained, the Director for Energy Employees Occupational Illness Compensation may reopen a claim and return it to the FAB for issuance of a new final decision, or to the district office for such further development as may be necessary, to be followed by a new recommended decision. The Director may also vacate any other type of decision issued by the FAB.</P> <P>(b) At any time after the FAB has issued a final decision pursuant to § 30.316, a claimant may file a written request that the Director for Energy Employees Occupational Illness Compensation reopen his or her claim, provided that the claimant also submits new evidence of either covered employment or exposure to a toxic substance, or identifies either a change in the PoC guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort.</P> <P>(1) If the Director concludes that the evidence submitted or matter identified in support of the claimant's request is material to the claim, the Director will reopen the claim and return it to the district office for such further development as may be necessary, to be followed by a new recommended decision.</P> <P>(2) New evidence of a medical condition described in subpart C of these regulations is not sufficient to support a written request to reopen a claim for such a condition under paragraph (b) of this section.</P> <P>(c) The decision whether or not to reopen a claim under this section is solely within the discretion of the Director <PRTPAGE P="108"/>for Energy Employees Occupational Illness Compensation and is not reviewable. If the Director reopens a claim pursuant to paragraphs (a) or (b) of this section and returns it to the district office, the resulting new recommended decision will be subject to the adjudicatory process described in this subpart. However, neither the district office nor the FAB can consider any objection concerning the Director's decision to reopen a claim under this section.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Medical and Related Benefits</HD> <SUBJGRP> <HD SOURCE="HED">Medical Treatment and Related Issues</HD> <SECTION> <SECTNO>§ 30.400</SECTNO> <SUBJECT>What are the basic rules for obtaining medical treatment?</SUBJECT> <P>(a) A covered Part B employee or a covered Part E employee who fits into at least one of the compensable claim categories described in subpart C of this part is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness or covered illness, retroactive to the date the claim for benefits for that occupational illness or covered illness under Part B or Part E of EEOICPA was filed. In situations where the occupational illness or covered illness is a secondary cancer, such treatment may include treatment of the underlying primary cancer when it is medically necessary or related to treatment of the secondary cancer; however, payment for medical treatment of the underlying primary cancer under these circumstances does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of EEOICPA. The employee need not be disabled to receive such treatment. When a survivor receives payment, OWCP will pay for such treatment if the employee died before the claim was paid. If there is any doubt as to whether a specific service, appliance or supply is necessary to treat the occupational illness or covered illness, the employee should consult OWCP prior to obtaining it.</P> <P>(b) If a claimant disagrees with the decision of OWCP that medical benefits provided under paragraph (a) of this section are not necessary to treat an occupational illness or covered illness, he or she may choose to utilize the adjudicatory process described in subpart D of this part.</P> <P>(c) Any qualified physician or qualified hospital may provide medical services, appliances and supplies to the covered Part B employee or the covered Part E employee. A qualified provider of medical support services may also furnish appropriate services, appliances, and supplies. OWCP may apply a test of cost-effectiveness when it decides if appliances and supplies are necessary to treat an occupational illness or covered illness. With respect to prescribed medications, OWCP may require the use of generic equivalents where they are available.</P> </SECTION> <SECTION> <SECTNO>§ 30.401</SECTNO> <SUBJECT>What are the special rules for the services of chiropractors?</SUBJECT> <P>(a) The services of chiropractors that may be reimbursed by OWCP are limited to treatment to correct a spinal subluxation. The costs of physical and related laboratory tests performed by or required by a chiropractor to diagnose such a subluxation are also payable.</P> <P>(b) A diagnosis of spinal subluxation as demonstrated by x-ray to exist must appear in the chiropractor's report before OWCP can consider payment of a chiropractor's bill.</P> <P>(c) A chiropractor may interpret his or her x-rays to the same extent as any other physician. To be given any weight, the medical report must state that x-rays support the finding of spinal subluxation. OWCP will not necessarily require submission of the x-ray, or a report of the x-ray, but the report must be available for submission on request.</P> <P>(d) A chiropractor may also provide services in the nature of physical therapy under the direction of a qualified physician.</P> </SECTION> <SECTION> <SECTNO>§ 30.402</SECTNO> <SUBJECT>What are the special rules for the services of clinical psychologists?</SUBJECT> <P>A clinical psychologist may serve as a physician within the scope of his or <PRTPAGE P="109"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 30.403</SECTNO> <SUBJECT>Will OWCP pay for the services of an attendant?</SUBJECT> <P>OWCP will authorize payment for personal care services under section 7384t of the Act, whether or not such care includes medical services, so long as the personal care services have been determined to be medically necessary and are provided by a home health aide, licensed practical nurse, or similarly trained individual. If a claimant disagrees with the decision of OWCP that personal care services are not medically necessary, he or she may utilize the adjudicatory process described in subpart D of this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.404</SECTNO> <SUBJECT>Will OWCP pay for transportation to obtain medical treatment?</SUBJECT> <P>(a) The employee is entitled to reimbursement for reasonable and necessary expenses, including transportation, incident to obtaining authorized medical services, appliances or supplies. To determine what is a reasonable distance to travel, OWCP will consider the availability of services, the employee's condition, and the means of transportation. Generally, a roundtrip distance of up to 200 miles is considered a reasonable distance to travel.</P> <P>(b) If travel of more than 200 miles is contemplated, or air transportation or overnight accommodations will be needed, the employee must submit a written request to OWCP for prior authorization with information describing the circumstances and necessity for such travel expenses. OWCP will approve the request if it determines that the travel expenses are reasonable and necessary, and are incident to obtaining authorized medical services, appliances or supplies. Requests for travel expenses that are often approved include those resulting from referrals to a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited local medical services.</P> <P>(c) If a claimant disagrees with the decision of OWCP that requested travel expenses are either not reasonable or necessary, or are not incident to obtaining authorized medical services, appliances or supplies, he or she may utilize the adjudicatory process described in subpart D of this part.</P> <P>(d) The standard form designated for medical travel refund requests is Form OWCP-957 and must be used to seek reimbursement under this section. This form can be obtained from OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.405</SECTNO> <SUBJECT>After selecting a treating physician, may an employee choose to be treated by another physician instead?</SUBJECT> <P>(a) OWCP will provide the employee with an opportunity to designate a treating physician when it accepts the claim. When the physician originally selected to provide treatment for an occupational illness or a covered illness refers the employee to a specialist for further medical care, the employee need not consult OWCP for approval. In all other instances, however, the employee must submit a written request to OWCP with his or her reasons for desiring a change of physician.</P> <P>(b) OWCP will approve the request if it determines that the reasons submitted are sufficient. Requests that are often approved include those for transfer of care from a general practitioner to a physician who specializes in treating the occupational illnesses or covered illnesses covered by EEOICPA, or the need for a new physician when an employee has moved.</P> <P>(c) If a claimant disagrees with the decision of OWCP that insufficient reasons for a change of physician have been submitted, he or she may utilize the adjudicatory process described in subpart D of this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.406</SECTNO> <SUBJECT>Are there any exceptions to these procedures for obtaining medical care?</SUBJECT> <P>In cases involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="110"/> <HD SOURCE="HED">Directed Medical Examinations</HD> <SECTION> <SECTNO>§ 30.410</SECTNO> <SUBJECT>Can OWCP require an employee to be examined by another physician?</SUBJECT> <P>(a) OWCP sometimes needs a second opinion from a medical specialist. The employee must submit to examination by a qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP as often and at such times and places as OWCP considers reasonably necessary. Also, OWCP may send a case file for second opinion review to a qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP where an actual examination is not needed, or where the employee is deceased.</P> <P>(b) If the initial examination is disrupted by someone accompanying the employee, OWCP will schedule another examination with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP. The employee will not be entitled to have anyone else present at the subsequent examination unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed.</P> </SECTION> <SECTION> <SECTNO>§ 30.411</SECTNO> <SUBJECT>What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?</SUBJECT> <P>(a) If one medical opinion holds more probative value than the other, OWCP will base its determination of coverage on the medical opinion with the greatest probative value. A difference in medical opinion sufficient to be considered a conflict only occurs when two reports of virtually equal weight and rationale reach opposing conclusions.</P> <P>(b) If a conflict exists between the medical opinion of the employee's physician and the medical opinion of a second opinion physician, an OWCP medical adviser or consultant, or a physician submitting an impairment evaluation that meets the criteria set out in § 30.905 of this part, OWCP shall appoint a third physician who conforms to the standards regarding conflicts of interest adopted by OWCP to make an examination or an impairment evaluation. This is called a referee examination or a referee impairment evaluation. OWCP will select a physician who is qualified in the appropriate specialty and who has had no prior connection with the case. Also, a case file may be sent to a physician who conforms to the standards regarding conflicts of interest adopted by OWCP for a referee medical review where there is no need for an actual examination, or where the employee is deceased.</P> <P>(c) If the initial referee examination or referee impairment evaluation is disrupted by someone accompanying the employee, OWCP will schedule another examination or impairment evaluation with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP. The employee will not be entitled to have anyone else present at the subsequent referee examination or referee impairment evaluation unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed.</P> </SECTION> <SECTION> <SECTNO>§ 30.412</SECTNO> <SUBJECT>Who pays for second opinion and referee examinations?</SUBJECT> <P>OWCP will pay second opinion and referee medical specialists directly. OWCP will also reimburse the employee for all necessary and reasonable expenses incident to such an examination, including transportation costs and actual wages the employee lost for the time needed to submit to an examination required by OWCP.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Reports</HD> <SECTION> <SECTNO>§ 30.415</SECTNO> <SUBJECT>What are the requirements for medical reports?</SUBJECT> <P>In general, medical reports from the employee's attending physician should include the following:</P> <P>(a) Dates of examination and treatment;</P> <P>(b) History given by the employee;</P> <P>(c) Physical findings;</P> <P>(d) Results of diagnostic tests;</P> <P>(e) Diagnosis;</P> <P>(f) Course of treatment;</P> <P>(g) A description of any other conditions found due to the claimed occupational illness or covered illness;<PRTPAGE P="111"/> </P> <P>(h) The treatment given or recommended for the claimed occupational illness or covered illness; and</P> <P>(i) All other material findings.</P> </SECTION> <SECTION> <SECTNO>§ 30.416</SECTNO> <SUBJECT>How and when should medical reports be submitted?</SUBJECT> <P>(a) The initial medical report (and any subsequent reports) should be made in narrative form on the physician's letterhead stationery. The physician should use the Form EE-7 as a guide for the preparation of his or her initial medical report in support of a claim under Part B and/or Part E of EEOICPA. The report should bear the physician's signature or signature stamp. OWCP may require an original signature on the report.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 30.417</SECTNO> <SUBJECT>What additional medical information may OWCP require to support continuing payment of benefits?</SUBJECT> <P>In all cases requiring hospital treatment or prolonged care, OWCP will request detailed narrative reports from the attending physician at periodic intervals. The physician will be asked to describe continuing medical treatment for the occupational illness or covered illness accepted by OWCP, a prognosis, and the physician's opinion as to the continuing causal relationship between the need for additional treatment and the occupational illness or covered illness.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Bills</HD> <SECTION> <SECTNO>§ 30.420</SECTNO> <SUBJECT>How should medical bills and reimbursement requests be submitted?</SUBJECT> <P>Usually, medical providers submit their bills directly for processing. The rules for submitting and processing provider bills and reimbursement requests are stated in subpart H of this part. An employee requesting reimbursement for out-of-pocket medical expenses must submit a Form OWCP-915 and meet the requirements described in § 30.702.</P> </SECTION> <SECTION> <SECTNO>§ 30.421</SECTNO> <SUBJECT>What are the time frames for submitting bills and reimbursement requests?</SUBJECT> <P>To be considered for payment, bills and reimbursement requests must be submitted by the end of the calendar year after the year when the expense was incurred, or by the end of the calendar year after the year when OWCP first accepted the claim as compensable under subpart D of this part, whichever is later.</P> </SECTION> <SECTION> <SECTNO>§ 30.422</SECTNO> <SUBJECT>If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee?</SUBJECT> <P>(a) The OWCP fee schedule sets maximum limits on the amounts payable for many services. The employee may be only partially reimbursed for out-of-pocket medical expenses because the amount he or she paid to the medical provider for a service exceeds the maximum allowable charge set by the OWCP fee schedule.</P> <P>(b) If this happens, the employee will be advised of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee's account, the amount he or she paid that exceeds the maximum allowable charge. The provider that the employee paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.</P> <P>(c) If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the charge that OWCP allows, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances of the case.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="112"/> <HD SOURCE="HED">Subpart F—Survivors; Payments and Offsets; Overpayments</HD> <SUBJGRP> <HD SOURCE="HED">Survivors</HD> <SECTION> <SECTNO>§ 30.500</SECTNO> <SUBJECT>What special statutory definitions apply to survivors under EEOICPA?</SUBJECT> <P>(a) For the purposes of paying compensation to survivors under both Parts B and E of EEOICPA, OWCP will use the following definitions:</P> <P>(1) <E T="03">Surviving spouse</E> means the wife or husband of a deceased covered Part B employee or deceased covered Part E employee who was married to that individual for the 365 consecutive days immediately prior to the death of that individual.</P> <P>(2) <E T="03">Child</E> or <E T="03">children</E> includes a recognized natural child of a deceased covered Part B employee or deceased covered Part E employee, a stepchild who lived with that individual in a regular parent-child relationship, and an adopted child of that individual. However, to be a “covered” child under Part E only, such child must have been, as of the date of the deceased covered Part E employee's death, either under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in one or more educational institutions since attaining the age of 18 years, or any age and incapable of self-support.</P> <P>(b) For the purposes of paying compensation to survivors only under Part B of EEOICPA, OWCP will use the following additional definitions:</P> <P>(1) <E T="03">Parent</E> includes fathers and mothers of a deceased covered Part B employee through adoption.</P> <P>(2) <E T="03">Grandchild</E> means a child of a child of a deceased covered Part B employee.</P> <P>(3) <E T="03">Grandparent</E> means a parent of a parent of a deceased covered Part B employee.</P> </SECTION> <SECTION> <SECTNO>§ 30.501</SECTNO> <SUBJECT>What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?</SUBJECT> <P>(a) Under Part B of the Act, if OWCP determines that a survivor or survivors are entitled to receive compensation under EEOICPA because a covered Part B employee who would otherwise have been entitled to benefits is deceased, that compensation will be disbursed as follows, subject to the qualifications set forth in § 30.5(gg)(3) of these regulations:</P> <P>(1) If there is a surviving spouse, the compensation shall be paid to that individual.</P> <P>(2) If there is no surviving spouse, the compensation shall be paid in equal shares to all children of the deceased covered Part B employee.</P> <P>(3) If there is no surviving spouse and no children, the compensation shall be paid in equal shares to the parents of the deceased covered Part B employee.</P> <P>(4) If there is no surviving spouse, no children and no parents, the compensation shall be paid in equal shares to all grandchildren of the deceased covered Part B employee.</P> <P>(5) If there is no surviving spouse, no children, no parents and no grandchildren, the compensation shall be paid in equal shares to the grandparents of the deceased covered Part B employee.</P> <P>(6) Notwithstanding paragraphs (a)(1) through (a)(5) of this section, if there is a surviving spouse and at least one child of the deceased covered Part B employee who is a minor at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, half of the compensation shall be paid to the surviving spouse, and the other half of the compensation shall be paid in equal shares to each child of the deceased covered Part B employee who is a minor at the time of payment.</P> <P>(b) Under Part E of the Act, if OWCP determines that a survivor or survivors are entitled to receive compensation under EEOICPA because a covered Part E employee who would otherwise have been entitled to benefits is deceased, that compensation will be disbursed as follows, subject to the qualifications set forth in § 30.5(gg)(3) of these regulations:</P> <P>(1) If there is a surviving spouse, the compensation shall be paid to that individual.</P> <P>(2) If there is no surviving spouse, the compensation shall be paid in equal shares to all “covered” children of the deceased covered Part E employee.<PRTPAGE P="113"/> </P> <P>(3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, if there is a surviving spouse and at least one “covered” child of the deceased covered Part E employee who is living at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, then half of such payment shall be made to such surviving spouse, and the other half of such payment shall be made in equal shares to each “covered” child of the employee who is living at the time of payment.</P> </SECTION> <SECTION> <SECTNO>§ 30.502</SECTNO> <SUBJECT>When is entitlement for survivors determined for purposes of EEOICPA?</SUBJECT> <P>Entitlement to any lump-sum payment for survivors under EEOICPA, other than for “covered” children under Part E, will be determined as of the time OWCP makes such a payment. As noted in § 30.500(a)(2) of these regulations, a child of a deceased Part E employee will only qualify as a “covered” child of that individual if he or she satisfied one of the additional statutory criteria for a “covered” child as of the date of the deceased Part E employee's death.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Payment of Claims and Offset for Certain Payments</HD> <SECTION> <SECTNO>§ 30.505</SECTNO> <SUBJECT>What procedures will OWCP follow before it pays any compensation?</SUBJECT> <P>(a) In cases involving the approval of a claim, whether in whole or in part, OWCP shall take all necessary steps to determine the amount of any offset or coordination of EEOICPA benefits before paying any benefits, and to verify the identity of the covered Part B employee, the covered Part E employee, or the eligible surviving beneficiary or beneficiaries. To perform these tasks, OWCP may conduct any investigation, require any claimant to provide or execute any affidavit, record or document, or authorize the release of any information as OWCP deems necessary to ensure that the compensation payment is made in the correct amount and to the correct person or persons. OWCP shall also require every claimant under Part B of the Act to execute and provide any necessary affidavit described in § 30.620 of these regulations. Should a claimant fail or refuse to execute an affidavit or release of information, or fail or refuse to provide a requested document or record or to provide access to information, such failure or refusal may be deemed to be a rejection of the payment, unless the claimant does not have and cannot obtain the legal authority to provide, release, or authorize access to the required information, records, or documents.</P> <P>(b) To determine the amount of any offset, OWCP shall require the covered Part B employee, covered Part E employee or each eligible surviving beneficiary filing a claim under this part to execute and provide an affidavit (or declaration made under oath on Form EE-1 or EE-2) reporting the amount of any payment made pursuant to a final judgment or settlement in litigation seeking damages. Even if someone other than the covered Part B employee or the covered Part E employee receives a payment pursuant to a final judgment or settlement in litigation seeking damages (<E T="03">e.g.</E>, the surviving spouse of a deceased covered Part B employee or a deceased covered Part E employee), the receipt of any such payment must be reported.</P> <P>(1) For the purposes of this paragraph (b) only, “litigation seeking damages” refers to any request or demand for money (other than for workers' compensation) by the covered Part B employee or the covered Part E employee, or by another individual if the covered Part B employee or the covered Part E employee is deceased, made or sought in a civil action or in anticipation of the filing of a civil action, for injuries incurred on account of an exposure for which compensation is payable under EEOICPA. This term does not also include any request or demand for money made or sought pursuant to a life insurance or health insurance contract, or any request or demand for money made or sought by an individual other than the covered Part B employee or the covered Part E employee in that individual's own right (<E T="03">e.g.</E>, a spouse's claim for loss of consortium), or any request or demand for money made or sought by the covered Part B employee or the covered Part E employee (or the <PRTPAGE P="114"/>estate of a deceased covered Part B employee or deceased covered Part E employee) not for injuries incurred on account of an exposure for which compensation is payable under the EEOICPA (<E T="03">e.g.</E>, a covered Part B employee's or a covered Part E employee's claim for damage to real or personal property).</P> <P>(2) If a payment has been made pursuant to a final judgment or settlement in litigation seeking damages, OWCP shall subtract a portion of the dollar amount of such payment from the benefit payments to be made under EEOICPA. OWCP will calculate the amount to be subtracted from the benefit payments in the following manner:</P> <P>(i) OWCP will first determine the value of the payment made pursuant to either a final judgment or settlement in litigation seeking damages by adding the dollar amount of any monetary damages (excluding contingent awards) and any medical expenses for treatment provided on or after the date the covered Part B employee or the covered Part E employee filed a claim for EEOICPA benefits that were paid for under the final judgment or settlement. In the event that these payments include a “structured” settlement (where a party makes an initial cash payment and also arranges, usually through the purchase of an annuity, for payments in the future), OWCP will usually accept the cost of the annuity to the purchaser as the dollar amount of the right to receive the future payments.</P> <P>(ii) OWCP will then make certain deductions from the above dollar amount to arrive at the dollar amount to be subtracted from any unpaid EEOICPA benefits. Allowable deductions consist of attorney's fees OWCP deems reasonable, and itemized costs of suit (out-of-pocket expenditures not part of the normal overhead of a law firm's operation like filing fees, travel expenses, witness fees, and court reporter costs for transcripts) provided that adequate supporting documentation is submitted to OWCP.</P> <P>(iii) The EEOICPA benefits that will be reduced will consist of any unpaid lump-sum payments payable in the future and medical benefits payable in the future. In those cases where it has not yet paid EEOICPA benefits, OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the lump-sum payments first. If the amount to be subtracted exceeds the lump-sum payments, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus. This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part B employee or the covered Part E employee for any ongoing EEOICPA medical treatment to the remaining surplus until it is absorbed. In addition to this reduction of ongoing EEOICPA medical benefits, OWCP will not be the first payer for any medical expenses that are the responsibility of another party (who will instead be the first payer) as part of a final judgment or settlement in litigation seeking damages.</P> <P>(3) The above reduction of EEOICPA benefits will not occur if an EEOICPA claimant had his or her award under section 5 of RECA reduced by the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages. It will also not occur if an EEOICPA claimant's prior payment of EEOICPA benefits, or his or her workers' compensation benefits, were offset to reflect the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages. However, if the prior reduction or offset of the above benefits did not reflect the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages, OWCP will reduce currently payable EEOICPA benefits by the amount of any surplus final judgment or settlement payment that remains.</P> <P>(c) Except as provided in § 30.506(b) of these regulations, when OWCP has verified the identity of every claimant who is entitled to the compensation payment, or to a share of the compensation payment, and has determined the correct amount of the payment or the share of the payment, OWCP shall notify every claimant, every duly appointed guardian or conservator of a claimant, or every person with power of attorney for a claimant, and require such person or persons to <PRTPAGE P="115"/>complete a Form EN-20 providing payment information. Such form shall be signed and returned to OWCP within sixty days of the date of the form or within such greater period as may be allowed by OWCP. Failure to sign and return the form within the required time may be deemed to be a rejection of the payment. If the claimant dies before the payment is received, the person who receives the payment shall return it to OWCP for redetermination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.</P> <P>(d) The total amount of compensation (other than medical benefits) under Part E that can be paid to all claimants as a result of the exposure of a covered Part E employee shall not be more than $250,000 in any circumstances.</P> </SECTION> <SECTION> <SECTNO>§ 30.506</SECTNO> <SUBJECT>To whom and in what manner will OWCP pay compensation?</SUBJECT> <P>(a) Except with respect to claims under Part B of the Act for beryllium sensitivity, payment shall be made to the covered Part B employee or the covered Part E employee, to the duly appointed guardian or conservator of that individual, or to the person with power of attorney for that individual, unless the covered Part B employee or covered Part E employee is deceased at the time of the payment. In all cases involving a deceased covered Part B employee or deceased covered Part E employee, payment shall be made to the eligible surviving beneficiary or beneficiaries, to the duly appointed guardian or conservator of the eligible surviving beneficiary or beneficiaries, or to every person with power of attorney for an eligible surviving beneficiary, in accordance with the terms and conditions specified in sections 7384s(e), 7384u(e), and 7385s-3(c) and (d) of EEOICPA.</P> <P>(b) Under Part B of the Act, compensation for any consequential injury, illness, impairment or disease is limited to payment of medical benefits for that injury, illness, impairment or disease. Under Part E of the Act, compensation for any consequential injury, illness, impairment or disease consists of medical benefits for that injury, illness, impairment or disease, as well as any additional monetary benefits that are consistent with the terms of § 30.505(d).</P> <P>(c) Rejected compensation payments, or shares of compensation payments, shall not be distributed to other eligible surviving beneficiaries, but shall be returned to the Fund.</P> <P>(d) No covered Part B employee may receive more than one lump-sum payment under Part B of EEOICPA for any occupational illnesses he or she contracted. However, any individual, including a covered Part B employee who has received a lump-sum payment for his or her own occupational illness or illnesses, may receive one lump-sum payment for each deceased covered Part B employee for whom he or she qualifies as an eligible surviving beneficiary under Part B of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 30.507</SECTNO> <SUBJECT>What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA?</SUBJECT> <P>The establishment of beryllium sensitivity does not entitle a covered Part B employee, or the eligible surviving beneficiary or beneficiaries of a deceased covered Part B employee, to any lump-sum payment provided for under Part B. Instead, a covered Part B employee whose sole accepted occupational illness is beryllium sensitivity shall receive beryllium sensitivity monitoring, as well as medical benefits for the treatment of this occupational illness in accordance with § 30.400 of these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 30.508</SECTNO> <SUBJECT>What is beryllium sensitivity monitoring?</SUBJECT> <P>Beryllium sensitivity monitoring shall consist of medical examinations to confirm and monitor the extent and nature of a covered Part B employee's beryllium sensitivity. Monitoring shall also include regular medical examinations, with diagnostic testing, to determine if the covered Part B employee has established chronic beryllium disease.</P> </SECTION> <SECTION> <PRTPAGE P="116"/> <SECTNO>§ 30.509</SECTNO> <SUBJECT>Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?</SUBJECT> <P>(a) If a covered Part E employee dies after filing a claim but before monetary benefits are paid under Part E of the Act, and his or her death is from a cause other than a covered illness, his or her survivor can choose to receive either the survivor benefits payable on account of the death of that covered Part E employee, or the monetary benefits that would otherwise have been payable to the covered Part E employee.</P> <P>(b) For the purposes of this section only, a death “from a cause other than a covered illness” refers only to a death that was <E T="03">solely</E> caused by a non-covered illness or illnesses. Therefore, the choice referred to in paragraph (a) of this section will not be available if a covered illness contributed to the death of the covered Part E employee in any manner. In those instances, survivor benefits will still be payable to the claimant, but he or she cannot choose to receive the monetary benefits that would have otherwise been payable to the deceased covered Part E employee in lieu of survivor benefits.</P> <P>(c) OWCP only makes impairment determinations based on rationalized medical evidence in the case file that is sufficiently detailed and meets the various requirements for the many different types of impairment determinations possible under the AMA's <E T="03">Guides</E>. Therefore, OWCP will only make an impairment determination for a deceased covered Part E employee pursuant to this section if the medical evidence of record is sufficient to satisfy the pertinent requirements in the AMA's <E T="03">Guides</E> and subpart J of this part.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Overpayments</HD> <SECTION> <SECTNO>§ 30.510</SECTNO> <SUBJECT>How does OWCP notify an individual of a payment made on a claim?</SUBJECT> <P>(a) In addition to providing narrative descriptions to recipients of benefits paid or payable, OWCP includes on each check a clear indication of the reason the payment is being made. For payments sent by electronic funds transfer, a notification of the date and amount of payment appears on the statement from the recipient's financial institution.</P> <P>(b) By these means, OWCP puts the recipient on notice that a payment was made and the amount of the payment. If the amount received differs from the amount indicated on the written notice or bank statement, the recipient is responsible for notifying OWCP of the difference. Absent affirmative evidence to the contrary, the recipient will be presumed to have received the notice of payment, whether mailed or transmitted electronically.</P> </SECTION> <SECTION> <SECTNO>§ 30.511</SECTNO> <SUBJECT>What is an “overpayment” for purposes of EEOICPA?</SUBJECT> <P>An “overpayment” is any amount of compensation paid under sections 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the EEOICPA to a recipient that constitutes, as of the time OWCP makes such payment:</P> <P>(a) Payment where no amount is payable under this part; or</P> <P>(b) Payment in excess of the correct amount determined by OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.512</SECTNO> <SUBJECT>What does OWCP do when an overpayment is identified?</SUBJECT> <P>Before seeking to recover an overpayment or adjust benefits, OWCP will advise the recipient of the overpayment in writing that:</P> <P>(a) The overpayment exists, and the amount of overpayment;</P> <P>(b) A preliminary finding shows either that the recipient was or was not at fault in the creation of the overpayment;</P> <P>(c) He or she has the right to inspect and copy OWCP records relating to the overpayment; and</P> <P>(d) He or she has the right to present written evidence which challenges the fact or amount of the overpayment, and/or challenges the preliminary finding that he or she was at fault in the creation of the overpayment. He or she may also request that recovery of the overpayment be waived. Any submission of evidence or request that recovery of the overpayment be waived must be presented to OWCP within 30 days of the date of the written notice of overpayment.</P> </SECTION> <SECTION> <PRTPAGE P="117"/> <SECTNO>§ 30.513</SECTNO> <SUBJECT>Under what circumstances may OWCP waive recovery of an overpayment?</SUBJECT> <P>(a) OWCP may consider waiving recovery of an overpayment only if the recipient was not at fault in accepting or creating the overpayment. Recipients of benefits paid under EEOICPA are responsible for taking all reasonable measures to ensure that payments received from OWCP are proper. The recipient must show good faith and exercise a high degree of care in reporting events which may affect entitlement to or the amount of benefits. A recipient who has done any of the following will be found to be at fault with respect to creating an overpayment:</P> <P>(1) Made an incorrect statement as to a material fact which he or she knew or should have known to be incorrect; or</P> <P>(2) Failed to provide information which he or she knew or should have known to be material; or</P> <P>(3) Accepted a payment which he or she knew or should have known to be incorrect. (This provision applies only to the overpaid individual.)</P> <P>(b) Whether or not OWCP determines that a recipient was at fault with respect to the creation of an overpayment depends on the circumstances surrounding the overpayment. The degree of care expected may vary with the complexity of those circumstances and the recipient's capacity to realize that he or she is being overpaid.</P> </SECTION> <SECTION> <SECTNO>§ 30.514</SECTNO> <SUBJECT>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?</SUBJECT> <P>If OWCP finds that the recipient of an overpayment was not at fault, repayment will still be required unless:</P> <P>(a) Adjustment or recovery of the overpayment would defeat the purpose of the Act (see § 30.516); or</P> <P>(b) Adjustment or recovery of the overpayment would be against equity and good conscience (see § 30.517).</P> </SECTION> <SECTION> <SECTNO>§ 30.515</SECTNO> <SUBJECT>Is a recipient responsible for an overpayment that resulted from an error made by OWCP?</SUBJECT> <P>(a) The fact that OWCP may have erred in making the overpayment does not by itself relieve the recipient of the overpayment from liability for repayment if the recipient also was at fault in accepting the overpayment.</P> <P>(b) However, OWCP may find that the recipient was not at fault if failure to report an event affecting compensation benefits, or acceptance of an incorrect payment, occurred because:</P> <P>(1) The recipient relied on misinformation given in writing by OWCP regarding the interpretation of a pertinent provision or EEOICPA of this part; or</P> <P>(2) OWCP erred in calculating either the percentage of impairment or wage-loss under Part E of EEOICPA.</P> </SECTION> <SECTION> <SECTNO>§ 30.516</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment defeat the purpose of the Act?</SUBJECT> <P>Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to the recipient because:</P> <P>(a) The recipient from whom OWCP seeks recovery needs substantially all of his or her current income to meet current ordinary and necessary living expenses; and</P> <P>(b) The recipient's assets do not exceed two months' expenditures as determined by OWCP using the Bureau of Labor Statistics Consumer Expenditure Survey tables.</P> </SECTION> <SECTION> <SECTNO>§ 30.517</SECTNO> <SUBJECT>Under what circumstances would recovery of an overpayment be against equity and good conscience?</SUBJECT> <P>(a) Recovery of an overpayment is considered to be against equity and good conscience when the recipient would experience severe financial hardship in attempting to repay the debt.</P> <P>(b) Recovery of an overpayment is also considered to be against equity and good conscience when the recipient, in reliance on such payments or on notice that such payments would be made, gives up a valuable right or changes his or her position for the worse. In making such a decision, OWCP does not consider the recipient's current ability to repay the overpayment.</P> <P>(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 <PRTPAGE P="118"/>that the action was based chiefly or solely in reliance on the payments or on the notice of payment. Gratuitous transfers of funds to other individuals are not considered relinquishments of valuable rights.</P> <P>(2) To establish that a recipient's position has changed for the worse, it must be shown that the decision made would not otherwise have been made but for the receipt of benefits, and that this decision resulted in a loss.</P> </SECTION> <SECTION> <SECTNO>§ 30.518</SECTNO> <SUBJECT>Can OWCP require the recipient of the overpayment to submit additional financial information?</SUBJECT> <P>(a) The recipient of the overpayment is responsible for providing information about income, expenses and assets as specified by OWCP. This information is needed to determine whether or not recovery of an overpayment would defeat the purpose of the Act, or would be against equity and good conscience. This information will also be used to determine the repayment schedule, if necessary.</P> <P>(b) Failure to submit this requested information within 30 days of the request shall result in denial of waiver, and no further request for waiver shall be considered until the requested information is furnished.</P> </SECTION> <SECTION> <SECTNO>§ 30.519</SECTNO> <SUBJECT>How does OWCP communicate its final decision concerning recovery of an overpayment?</SUBJECT> <P>(a) After considering any written documentation or argument submitted to OWCP within the 30-day period set out in § 30.512(d), OWCP will issue a final decision on the overpayment. OWCP will send a copy of the final decision to the individual from whom recovery is sought and his or her representative, if any.</P> <P>(b) The provisions of subpart D of this part do not apply to any decision regarding the recovery of an overpayment.</P> </SECTION> <SECTION> <SECTNO>§ 30.520</SECTNO> <SUBJECT>How are overpayments collected?</SUBJECT> <P>(a) When an overpayment has been made to a recipient who is entitled to further payments, the recipient shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is called to same. If no refund is made, OWCP shall recover the overpayment by reducing any further lump-sum payments due currently or in the future, taking into account the financial circumstances of the recipient, and any other relevant factors, so as to minimize any hardship. Should the recipient die before collection has been completed, further collection shall be made by decreasing later payments, if any, payable under EEOICPA with respect to the underlying occupational illness or covered illness.</P> <P>(b) When an overpayment has been made to a recipient and OWCP is unable to recover the overpayment by reducing compensation due currently, the recipient shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is called to same. The overpayment is subject to the provisions of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 <E T="03">et seq.</E>), and may be reported to the Internal Revenue Service as income. If the recipient fails to make such refund, OWCP may recover the overpayment through any available means, including offset of salary, annuity benefits, or other Federal payments, including tax refunds as authorized by the Tax Refund Offset Program, or referral of the debt to a collection agency or to the Department of Justice.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Special Provisions</HD> <SUBJGRP> <HD SOURCE="HED">Representation</HD> <SECTION> <SECTNO>§ 30.600</SECTNO> <SUBJECT>May a claimant designate a representative?</SUBJECT> <P>(a) The claims process under this part is informal, and OWCP acts as an impartial evaluator of the evidence. A claimant need not be represented to file a claim or receive a payment. Nevertheless, a claimant may appoint one individual to represent his or her interests, but the appointment must be in writing.</P> <P>(b) There can be only one representative at any one time, so after one representative has been properly appointed, OWCP will not recognize another individual as a representative until the claimant withdraws the authorization of the first individual. In <PRTPAGE P="119"/>addition, OWCP will recognize only certain types of individuals (see § 30.601). For the purposes of paragraph (b) of this section, a “representative” does not include a person who only has a power of attorney to act on behalf of a claimant.</P> <P>(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.</P> <P>(1) Any notice requirement contained in this part or EEOICPA is fully satisfied if served on the representative, and has the same force and effect as if sent to the claimant.</P> <P>(2) A representative does not have authority to sign the Form EN-20, described in § 30.505(c) of these regulations, which collects information necessary for issuance of a compensation payment.</P> </SECTION> <SECTION> <SECTNO>§ 30.601</SECTNO> <SUBJECT>Who may serve as a representative?</SUBJECT> <P>A claimant may authorize any individual to represent him or her in regard to a claim under EEOICPA, unless that individual's service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208). A federal employee may act as a representative only:</P> <P>(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</P> <P>(b) While acting as a union representative, defined as any officially sanctioned union official, and no fee or gratuity is charged.</P> </SECTION> <SECTION> <SECTNO>§ 30.602</SECTNO> <SUBJECT>Who is responsible for paying the representative's fee?</SUBJECT> <P>A representative may charge the claimant a fee for services and for costs associated with the representation before OWCP. The claimant is solely responsible for paying the fee and other costs. OWCP will not reimburse the claimant, nor is it in any way liable for the amount of the fee and costs.</P> </SECTION> <SECTION> <SECTNO>§ 30.603</SECTNO> <SUBJECT>Are there any limitations on what the representative may charge the claimant for his or her services?</SUBJECT> <P>(a) Notwithstanding any contract, the representative may not receive, for services rendered in connection with a claim pending before OWCP, more than the percentages of the lump-sum payment made to the claimant set out in paragraph (b) of this section.</P> <P>(b) The percentages referred to in paragraph (a) of this section are:</P> <P>(1) 2 percent for the filing of an initial claim with OWCP, provided that the representative was retained prior to the filing of the initial claim; plus</P> <P>(2) 10 percent of the difference between the lump-sum payment made to the claimant and the amount proposed in the recommended decision with respect to objections to a recommended decision.</P> <P>(c)(1) Any representative who violates this section shall be fined not more than $5,000.</P> <P>(2) The authority to prosecute violations of this limitation lies with the Department of Justice.</P> <P>(d) The fee limitations described in this section shall not apply with respect to representative services that are rendered in connection with a petition filed with a U.S. District Court seeking review of an OWCP decision that is final pursuant to § 30.316(d), or with respect to any subsequent appeal in such a proceeding.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Third Party Liability</HD> <SECTION> <SECTNO>§ 30.605</SECTNO> <SUBJECT>What rights does the United States have upon payment of compensation under EEOICPA?</SUBJECT> <P>If an occupational illness or covered illness for which compensation is payable under EEOICPA is caused, wholly or partially, by someone other than a federal employee acting within the scope of his or her employment, a DOE contractor or subcontractor, a beryllium vendor, an atomic weapons employer or a RECA section 5 mine or mill, the United States is subrogated for the full amount of any payment of compensation under EEOICPA to any right or claim that the individual to whom the payment was made may have <PRTPAGE P="120"/>against any person or entity on account of such occupational illness or covered illness.</P> </SECTION> <SECTION> <SECTNO>§ 30.606</SECTNO> <SUBJECT>Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP?</SUBJECT> <P>Any person who has filed an EEOICPA claim that has been accepted by OWCP (whether or not compensation has been paid), or who has received EEOICPA benefits in connection with a claim filed by another, is required to notify OWCP of the receipt of money or other property as a result of a settlement or judgment in connection with the circumstances of that claim.</P> </SECTION> <SECTION> <SECTNO>§ 30.607</SECTNO> <SUBJECT>How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery?</SUBJECT> <P>In this situation, the recovery to be reported is the present value of the right to receive all of the payments included in the structured settlement, allocated in the case of multiple recipients in the same manner as single payment recoveries.</P> </SECTION> <SECTION> <SECTNO>§ 30.608</SECTNO> <SUBJECT>How does the United States calculate the amount to which it is subrogated?</SUBJECT> <P>The subrogated amount of a specific claim consists of the total money paid by OWCP from the Energy Employees Occupational Illness Compensation Fund with respect to that claim to or on behalf of a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary, less charges for any medical file review (<E T="03">i.e.</E>, the physician did not examine the employee) done at the request of OWCP. Charges for medical examinations also may be subtracted if the covered Part B employee, covered Part E employee or an eligible surviving beneficiary establishes that the examinations were required to be made available to the covered Part B employee or covered Part E employee under a statute other than EEOICPA.</P> </SECTION> <SECTION> <SECTNO>§ 30.609</SECTNO> <SUBJECT>Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP?</SUBJECT> <P>Since an injury caused by medical malpractice in treating an occupational illness or covered illness compensable under EEOICPA is also covered under EEOICPA, any recovery in a suit alleging such an injury is treated as a recovery that must be reported to OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.610</SECTNO> <SUBJECT>Are payments to a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?</SUBJECT> <P>Since payments received by a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary pursuant to an insurance policy purchased by someone other than a liable third party are not payments in satisfaction of liability for causing an occupational illness or covered illness compensable under the Act, they are not considered a recovery that must be reported to OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.611</SECTNO> <SUBJECT>If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?</SUBJECT> <P>(a) All medical conditions accepted by OWCP in connection with a single claim are treated as the same illness for the purpose of computing the amount which the United States is entitled to offset in connection with the receipt of a recovery from a third party, except that an injury caused by medical malpractice in treating an illness covered under EEOICPA will be treated as a separate injury.</P> <P>(b) If an illness covered under EEOICPA is caused under circumstances creating a legal liability in more than one person, other than the United States, a DOE contractor or subcontractor, a beryllium vendor or an atomic weapons employer, to pay <PRTPAGE P="121"/>damages, OWCP will determine whether recoveries received from one or more third parties should be attributed to separate conditions for which compensation is payable in connection with a single EEOICPA claim. If such an attribution is both practicable and equitable, as determined by OWCP, in its discretion, the conditions will be treated as separate injuries for purposes of calculating the amount to which the United States is subrogated.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers</HD> <SECTION> <SECTNO>§ 30.615</SECTNO> <SUBJECT>What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA?</SUBJECT> <P>(a) A tort suit (other than an administrative or judicial proceeding for workers' compensation) that includes a claim arising out of a covered Part B employee's employment-related exposure to beryllium or radiation, filed against a beryllium vendor or an atomic weapons employer, by a covered Part B employee or an eligible surviving beneficiary or beneficiaries of a deceased covered Part B employee, will disqualify that otherwise eligible individual or individuals from receiving benefits under Part B of EEOICPA unless such claim is terminated in accordance with the requirements of §§ 30.616 through 30.619 of these regulations.</P> <P>(b) The term “claim arising out of a covered Part B employee's employment-related exposure to beryllium or radiation” used in paragraph (a) of this section includes a claim that is derivative of a covered Part B employee's employment-related exposure to beryllium or radiation, such as a claim for loss of consortium raised by a covered Part B employee's spouse.</P> <P>(c) If all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation are terminated in accordance with the requirements of §§ 30.616 through 30.619 of these regulations, proceeding with the remaining portion of the tort suit filed against a beryllium vendor or an atomic weapons employer will not disqualify an otherwise eligible individual or individuals from receiving benefits under Part B of EEOICPA.</P> </SECTION> <SECTION> <SECTNO>§ 30.616</SECTNO> <SUBJECT>What happens if this type of tort suit was filed prior to October 30, 2000?</SUBJECT> <P>(a) If a tort suit described in § 30.615 was filed prior to October 30, 2000, the claimant or claimants will not be disqualified from receiving any EEOICPA benefits to which they may be found entitled if the tort suit was terminated in any manner prior to December 28, 2001.</P> <P>(b) If a tort suit described in § 30.615 was filed prior to October 30, 2000 and was pending as of December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA unless they dismissed all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation that were included in the tort suit prior to December 31, 2003.</P> </SECTION> <SECTION> <SECTNO>§ 30.617</SECTNO> <SUBJECT>What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?</SUBJECT> <P>(a) If a tort suit described in § 30.615 was filed during the period from October 30, 2000 through December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA unless they dismiss all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation that are included in the tort suit on or before the last permissible date described in paragraph (b) of this section.</P> <P>(b) The last permissible date is the later of:</P> <P>(1) April 30, 2003; or</P> <P>(2) The date that is 30 months after the date the claimant or claimants first became aware that an illness of the covered Part B employee may be connected to his or her exposure to beryllium or radiation covered by EEOICPA. For purposes of determining when this 30-month period begins, “the date the claimant or claimants first became aware” will be deemed to be the date they received either a reconstructed dose from HHS, or a diagnosis <PRTPAGE P="122"/>of a covered beryllium illness, as applicable.</P> </SECTION> <SECTION> <SECTNO>§ 30.618</SECTNO> <SUBJECT>What happens if this type of tort suit was filed after December 28, 2001?</SUBJECT> <P>(a) If a tort suit described in § 30.615 was filed after December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA if a judgment is entered against them.</P> <P>(b) If a tort suit described in § 30.615 was filed after December 28, 2001 and a judgment has not yet been entered against the claimant or claimants, they will also be disqualified from receiving any benefits under Part B of EEOICPA unless, prior to entry of any judgment, they dismiss all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation that are included in the tort suit on or before the last permissible date described in paragraph (c) of this section.</P> <P>(c) The last permissible date is the later of:</P> <P>(1) April 30, 2003; or</P> <P>(2) The date that is 30 months after the date the claimant or claimants first became aware that an illness of the covered Part B employee may be connected to his or her exposure to beryllium or radiation covered by EEOICPA. For purposes of determining when this 30-month period begins, “the date the claimant or claimants first became aware” will be deemed to be the date they received either a reconstructed dose from HHS, or a diagnosis of a covered beryllium illness, as applicable.</P> </SECTION> <SECTION> <SECTNO>§ 30.619</SECTNO> <SUBJECT>Do all the parties to this type of tort suit have to take these actions?</SUBJECT> <P>The type of tort suits described in § 30.615 may be filed by more than one individual, each with a different cause of action. For example, a tort suit may be filed against a beryllium vendor by both a covered Part B employee and his or her spouse, with the covered Part B employee claiming for chronic beryllium disease and the spouse claiming for loss of consortium due to the covered Part B employee's exposure to beryllium. However, since the spouse of a living covered Part B employee could not be an eligible surviving beneficiary under Part B of EEOICPA, the spouse would not have to comply with the termination requirements of §§ 30.616 through 30.618. A similar result would occur if a tort suit were filed by both the spouse of a deceased covered Part B employee and other family members (such as children of the deceased covered part B employee). In this case, the spouse would be the only eligible surviving beneficiary of the deceased covered Part B employee under Part B of the EEOICPA because the other family members could not be eligible for benefits while he or she was alive. As a result, the spouse would be the only party to the tort suit who would have to comply with the termination requirements of §§ 30.616 through 30.618.</P> </SECTION> <SECTION> <SECTNO>§ 30.620</SECTNO> <SUBJECT>How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of EEOICPA?</SUBJECT> <P>Prior to authorizing payment on a claim under Part B of EEOICPA, OWCP will require each claimant to execute and provide an affidavit stating if he or she filed a tort suit (other than an administrative or judicial proceeding for workers' compensation) against either a beryllium vendor or an atomic weapons employer that included a claim arising out of a covered Part B employee's employment-related exposure to beryllium or radiation, and if so, the current status of such tort suit. OWCP may also require the submission of any supporting evidence necessary to confirm the particulars of any affidavit provided under this section.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Coordination of Part E Benefits With State Workers' Compensation Benefits</HD> <SECTION> <SECTNO>§ 30.625</SECTNO> <SUBJECT>What does “coordination of benefits” mean under Part E of EEOICPA?</SUBJECT> <P>In general, “coordination of benefits” under Part E of the Act occurs when compensation to be received under Part E is reduced by OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect certain benefits the beneficiary <PRTPAGE P="123"/>receives under a state workers' compensation program for the same covered illness.</P> </SECTION> <SECTION> <SECTNO>§ 30.626</SECTNO> <SUBJECT>How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers' compensation programs?</SUBJECT> <P>(a) OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers' compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits.</P> <P>(b) To determine the amount of any reduction of EEOICPA compensation, OWCP shall require the covered Part E employee or each eligible surviving beneficiary filing a claim under Part E to execute and provide affidavits reporting the amount of any benefit received pursuant to a claim filed in a state workers' compensation program for the same covered illness.</P> <P>(c) If a covered Part E employee or a survivor of such employee receives benefits through a state workers' compensation program pursuant to a claim for the same covered illness, OWCP shall reduce a portion of the dollar amount of such state workers' benefit from the compensation payable under Part E. OWCP will calculate the net amount of the state workers' compensation benefit amount to be subtracted from the compensation payment under Part E in the following manner:</P> <P>(1) OWCP will first determine the dollar value of the benefits received by that individual from a state workers' compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness.</P> <P>(2) OWCP will then make certain deductions from the above dollar benefit received under a state workers' compensation program to arrive at the dollar amount that will be subtracted from any compensation payable under Part E of EEOICPA.</P> <P>(i) Allowable deductions consist of reasonable costs in obtaining state workers' compensation benefits incurred by that individual, including but not limited to attorney's fees OWCP deems reasonable and itemized costs of suit (out-of-pocket expenditures not part of the normal overhead of a law firm's operation like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to OWCP for its consideration.</P> <P>(ii) The EEOICPA benefits that will be reduced will consist of any unpaid monetary payments payable in the future and medical benefits payable in the future. In those cases where it has not yet paid EEOICPA benefits under Part E, OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first. If the amount to be subtracted exceeds the monetary payments currently payable, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus. This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing EEOICPA medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).</P> <P>(3) The above coordination of benefits will not occur if the beneficiary under a state workers' compensation program receives state workers' compensation benefits for both a covered and a non-covered illness arising out of and in the course of the same work-related incident.</P> </SECTION> <SECTION> <SECTNO>§ 30.627</SECTNO> <SUBJECT>Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits?</SUBJECT> <P>A waiver to the requirement to coordinate Part E benefits with benefits paid under a state workers' compensation program may be granted if OWCP determines that the administrative costs and burdens of coordinating benefits in a particular case or class of cases justifies the waiver. This decision is exclusively within the discretion of OWCP.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="124"/> <HD SOURCE="HED">Subpart H—Information for Medical Providers</HD> <SUBJGRP> <HD SOURCE="HED">Medical Records and Bills</HD> <SECTION> <SECTNO>§ 30.700</SECTNO> <SUBJECT>What kinds of medical records must providers keep?</SUBJECT> <P>Federal Government medical officers, private physicians and hospitals are required to keep records of all cases treated by them under EEOICPA so they can supply OWCP with a history of the claimed occupational illness or covered illness, a description of the nature and extent of the claimed occupational illness or covered illness, the results of any diagnostic studies performed, and the nature of the treatment rendered. This requirement terminates after a provider has supplied OWCP with the above-noted information, and otherwise terminates ten years after the record was created.</P> </SECTION> <SECTION> <SECTNO>§ 30.701</SECTNO> <SUBJECT>How are medical bills to be submitted?</SUBJECT> <P>(a) All charges for medical and surgical treatment, appliances or supplies furnished to employees, except for treatment and supplies provided by nursing homes, shall be supported by medical evidence as provided in § 30.700. The physician or provider shall itemize the charges on Form OWCP-1500 or CMS-1500 (for professional charges), Form OWCP-04 or UB-04 (for hospitals), an electronic or paper-based bill that includes required data elements (for pharmacies), or other form as warranted, and submit the form or bill promptly for processing.</P> <P>(b) The provider shall identify each service performed using the Physician's Current Procedural Terminology (CPT) code, the Healthcare Common Procedure Coding System (HCPCS) code, the National Drug Code (NDC) number, or the Revenue Center Code (RCC), with a brief narrative description. Where no code is applicable, a detailed description of services performed should be provided.</P> <P>(c) For professional charges billed on Form OWCP-1500 or CMS-1500, the provider shall also state each diagnosed condition and furnish the corresponding diagnostic code using the “International Classification of Disease, 9th Edition, Clinical Modification” (ICD-9-CM), or as revised. A separate bill shall be submitted when the employee is discharged from treatment or monthly, if treatment for the occupational illness is necessary for more than 30 days.</P> <P>(1)(i) Hospitals shall submit charges for medical and surgical treatment or supplies promptly on Form OWCP-04 or UB-04. The provider shall identify each outpatient radiology service, outpatient pathology service and physical therapy service performed, using HCPCS/CPT codes with a brief narrative description. The charge for each individual service, or the total charge for all identical services, should also appear on the form.</P> <P>(ii) Other outpatient hospital services for which HCPCS/CPT codes exist shall also be coded individually using the coding scheme noted in this section. Services for which there are no HCPCS/CPT codes available can be presented using the RCCs described in the “National Uniform Billing Data Elements Specifications,” current edition. The provider shall also furnish the diagnostic code using the ICD-9-CM. If the outpatient hospital services include surgical and/or invasive procedures, the provider shall code each procedure using the proper HCPCS/CPT codes and furnishing the corresponding diagnostic codes using the ICD-9-CM.</P> <P>(2) Pharmacies shall itemize charges for prescription medications, appliances, or supplies on electronic or paper-based bills and submit them promptly for processing. Bills for prescription medications must include all required data elements, including the NDC number assigned to the product, the generic or trade name of the drug provided, the prescription number, the quantity provided, and the date the prescription was filled.</P> <P>(3) Nursing homes shall itemize charges for appliances, supplies or services on the provider's billhead stationery and submit them promptly for processing.</P> <P>(d) By submitting a bill and/or accepting payment, the provider signifies that the service for which payment is sought was performed as described and was necessary. In addition, the provider thereby agrees to comply with all regulations set forth in this subpart <PRTPAGE P="125"/>concerning the rendering of treatment and/or the process for seeking payment for medical services, including the limitation imposed on the amount to be paid for such services.</P> <P>(e) In summary, bills submitted by providers must: Be itemized on Form OWCP-1500 or CMS-1500 (for physicians), Form OWCP-04 or UB-04 (for hospitals), or an electronic or paper-based bill that includes required data elements (for pharmacies); contain the signature or signature stamp of the provider; and identify the procedures using HCPCS/CPT codes, RCCs, or NDC numbers. Otherwise, the bill may be returned to the provider for correction and resubmission. The decision of OWCP whether to pay a provider's bill is final when issued and is not subject to the adjudicatory process described in subpart D of this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.702</SECTNO> <SUBJECT>How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?</SUBJECT> <P>(a) If an employee has paid bills for medical, surgical or other services, supplies or appliances provided by a professional due to an occupational illness or a covered illness, he or she must submit a request for reimbursement on Form OWCP-915, together with an itemized bill on Form OWCP-1500 or CMS-1500 prepared by the provider and a medical report as provided in § 30.700, for consideration.</P> <P>(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.</P> <P>(2) The reimbursement request must be accompanied by evidence that the provider received payment for the service from the employee and a statement of the amount paid. Acceptable evidence that payment was received includes, but is not limited to, a signed statement by the provider, a mechanical stamp or other device showing receipt of payment, a copy of the employee's canceled check (both front and back) or a copy of the employee's credit card receipt.</P> <P>(b) If a hospital, pharmacy or nursing home provided services for which the employee paid, the employee must also use Form OWCP-915 to request reimbursement and should submit the request in accordance with the provisions of § 30.701(a). Any such request for reimbursement must be accompanied by evidence, as described in paragraph (a)(2) of this section, that the provider received payment for the service from the employee and a statement of the amount paid.</P> <P>(c) The requirements of paragraphs (a) and (b) of this section may be waived if extensive delays in the filing or the adjudication of a claim make it unusually difficult for the employee to obtain the required information.</P> <P>(d) Copies of bills submitted for reimbursement will not be accepted unless they bear the original signature of the provider and evidence of payment. Payment for medical and surgical treatment, appliances or supplies shall in general be no greater than the maximum allowable charge for such service determined by OWCP, as set forth in § 30.705. The decision of OWCP whether to reimburse an employee for out-of-pocket medical expenses, and the amount of any reimbursement, is final when issued and is not subject to the adjudicatory process described in subpart D of this part.</P> <P>(e) An employee will be only partially reimbursed for a medical expense if the amount he or she paid to a provider for the service exceeds the maximum allowable charge set by OWCP's schedule. If this happens, the employee will be advised of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee's account, the amount he or she paid which exceeds the maximum allowable charge. The provider that the employee paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.</P> <P>(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 <PRTPAGE P="126"/>date of a subsequent reconsideration decision which continues to disallow all or a portion of the disputed amount, OWCP will initiate exclusion procedures as provided by § 30.715.</P> <P>(g) If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the allowed charge, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances of the case.</P> </SECTION> <SECTION> <SECTNO>§ 30.703</SECTNO> <SUBJECT>What are the time limitations on OWCP's payment of bills?</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Fee Schedule</HD> <SECTION> <SECTNO>§ 30.705</SECTNO> <SUBJECT>What services are covered by the OWCP fee schedule?</SUBJECT> <P>(a) Payment for medical and other health services furnished by physicians, hospitals and other providers for occupational illnesses or covered illnesses shall not exceed a maximum allowable charge for such service as determined by OWCP, except as provided in this section.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 30.706</SECTNO> <SUBJECT>How are the maximum fees defined?</SUBJECT> <P>For professional medical services, OWCP shall maintain a schedule of maximum allowable fees for procedures performed in a given locality. The schedule shall consist of: An assignment of a value to procedures identified by HCPCS/CPT code which represents the relative skill, effort, risk and time required to perform the procedure, as compared to other procedures of the same general class; an index based on a relative value scale that considers skill, labor, overhead, malpractice insurance and other related costs; and a monetary value assignment (conversion factor) for one unit of value in each of the categories of service.</P> </SECTION> <SECTION> <SECTNO>§ 30.707</SECTNO> <SUBJECT>How are payments for particular services calculated?</SUBJECT> <P>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.</P> <P>(a) The “locality” which serves as a basis for the determination of average cost is defined by the Bureau of Census Metropolitan Statistical Areas. OWCP shall base the determination of the relative per capita cost of medical care in a locality using information about enrollment and medical cost per county, provided by the Centers for Medicare and Medicaid Services (CMS).</P> <P>(b) OWCP shall assign the relative value units (RVUs) published by CMS to all services for which CMS has made assignments, using the most recent revision. Where there are no RVUs assigned to a procedure, OWCP may develop and assign any RVUs considered appropriate. The geographic adjustment factor shall be that designated by Geographic Practice Cost Indices for Metropolitan Statistical Areas as devised for CMS and as updated or revised by CMS from time to time. OWCP will devise conversion factors for each category of service, and in doing so may adapt CMS conversion factors as appropriate using OWCP's processing experience and internal data.<PRTPAGE P="127"/> </P> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-1">[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] × $61.20</FP> <FP SOURCE="FP-1">[2.45 + 3.44 + .56] × $61.20</FP> <FP SOURCE="FP-1">6.45 × $61.20 = $394.74</FP> </EXTRACT> </SECTION> <SECTION> <SECTNO>§ 30.708</SECTNO> <SUBJECT>Does the fee schedule apply to every kind of procedure?</SUBJECT> <P>Where the time, effort and skill required to perform a particular procedure vary widely from one occasion to the next, OWCP may choose not to assign a relative value to that procedure. In this case the allowable charge for the procedure will be set individually based on consideration of a detailed medical report and other evidence. At its discretion, OWCP may set fees without regard to schedule limits for specially authorized consultant examinations, for directed medical examinations, and for other specially authorized services.</P> </SECTION> <SECTION> <SECTNO>§ 30.709</SECTNO> <SUBJECT>How are payments for medicinal drugs determined?</SUBJECT> <P>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.</P> <P>(a) All prescription medications identified by NDC number will be assigned an average wholesale price representing the product's nationally recognized wholesale price as determined by surveys of manufacturers and wholesalers. OWCP will establish the dispensing fee.</P> <P>(b) The NDC numbers, the average wholesale prices, and the dispensing fee shall be reviewed from time to time and updated as necessary.</P> </SECTION> <SECTION> <SECTNO>§ 30.710</SECTNO> <SUBJECT>How are payments for inpatient medical services determined?</SUBJECT> <P>(a) OWCP will pay for inpatient medical services according to pre-determined, condition-specific rates based on the Prospective Payment System (PPS) devised by CMS (42 CFR parts 412, 413, 424, 485, and 489). Using this system, payment is derived by multiplying the diagnosis-related group (DRG) weight assigned to the hospital discharge by the provider-specific factors.</P> <P>(1) All hospital discharges will be classified according to the DRGs prescribed by CMS in the form of the DRG Grouper software program. On this list, each DRG represents the average resources necessary to provide care in a case in that DRG relative to the national average of resources consumed per case.</P> <P>(2) The provider-specific factors will be provided by CMS in the form of their PPS Pricer software program. The software takes into consideration the type of facility, census division, actual geographic location of the hospital, case mix cost per discharge, number of hospital beds, intern/beds ratio, operating cost to charge ratio, and other factors used by CMS to determine the specific rate for a hospital discharge under their PPS. OWCP may devise price adjustment factors as appropriate using OWCP's processing experience and internal data.</P> <P>(3) OWCP will base payments to facilities excluded from CMS's PPS on consideration of detailed medical reports and other evidence.</P> <P>(4) OWCP shall review the pre-determined hospital rates at least once a year, and may adjust any or all components when OWCP deems it necessary or appropriate.</P> <P>(b) OWCP shall review the schedule of fees at least once a year, and may adjust the schedule or any of its components when OWCP deems it necessary or appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 30.711</SECTNO> <SUBJECT>When and how are fees reduced?</SUBJECT> <P>(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 <PRTPAGE P="128"/>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.</P> <P>(b) If the charge submitted for a service supplied to an employee exceeds the maximum amount determined to be reasonable according to the schedule, OWCP shall pay the amount allowed by the schedule for that service and shall notify the provider in writing that payment was reduced for that service in accordance with the schedule. OWCP shall also notify the provider of the method for requesting reconsideration of the balance of the charge. The decision of OWCP to pay less than the charged amount is final when issued and is not subject to the adjudicatory process described in subpart D of this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.712</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider request reconsideration of the reduction?</SUBJECT> <P>(a) A physician or other provider whose charge for service is only partially paid because it exceeds a maximum allowable amount set by OWCP may, within 30 days, request reconsideration of the fee determination.</P> <P>(1) Any such request will be considered by the district office with jurisdiction over the employee's claim. The request must be accompanied by documentary evidence that the procedure performed was either incorrectly identified by the original code, that the presence of a severe or concomitant medical condition made treatment especially difficult, or that the provider possessed unusual qualifications. In itself, board certification in a specialty is not sufficient evidence of unusual qualifications to justify a charge in excess of the maximum allowable amount set by OWCP. These are the only three circumstances that will justify reevaluation of the paid amount.</P> <P>(2) A list of district offices and their respective areas of jurisdiction is available upon request from the U.S. Department of Labor, Office of Workers' Compensation Programs, Washington, DC 20210, or on the Internet at <E T="03">http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm</E>. Within 30 days of receiving the request for reconsideration, the district office shall respond in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted.</P> <P>(b) If the district office issues a decision that continues to disallow a contested amount, the provider may apply to the Regional Director of the region with jurisdiction over the district office. The application must be filed within 30 days of the date of such decision, and it may be accompanied by additional evidence. Within 60 days of receipt of such application, the Regional Director shall issue a decision in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted.</P> </SECTION> <SECTION> <SECTNO>§ 30.713</SECTNO> <SUBJECT>If OWCP reduces a fee, may a provider bill the employee for the balance?</SUBJECT> <P>A provider whose fee for service is partially paid by OWCP as a result of the application of its fee schedule or other tests for reasonableness in accordance with this part shall not request payment from the employee for the unpaid amount of the provider's bill.</P> <P>(a) Where a provider's fee for a particular service or procedure is lower to the general public than as provided by the schedule of maximum allowable charges, the provider shall bill at the lower rate. A fee for a particular service or procedure which is higher than the provider's fee to the general public for that same service or procedure will be considered a charge “substantially in excess of such provider's customary charges” for the purposes of § 30.715(d).</P> <P>(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 <PRTPAGE P="129"/>the exclusion procedures provided by § 30.715(h).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Exclusion of Providers</HD> <SECTION> <SECTNO>§ 30.715</SECTNO> <SUBJECT>What are the grounds for excluding a provider from payment under this part?</SUBJECT> <P>A physician, hospital, or provider of medical services or supplies shall be excluded from payment under this part if such physician, hospital or provider has:</P> <P>(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;</P> <P>(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;</P> <P>(c) Knowingly made, or caused to be made, any false statement or misrepresentation of a material fact in connection with a determination of the right to reimbursement under this part, or in connection with a request for payment;</P> <P>(d) Submitted, or caused to be submitted, three or more bills or requests for payment within a 12-month period under this subpart containing charges which OWCP finds to be substantially in excess of such provider's customary charges, unless OWCP finds there is good cause for the bills or requests containing such charges;</P> <P>(e) Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this subpart and paid for by OWCP;</P> <P>(f) Failed, neglected or refused on three or more occasions during a 12-month period to submit full and accurate medical reports, or to respond to requests by OWCP for additional reports or information, as required by § 30.700 of this part;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 30.716</SECTNO> <SUBJECT>What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?</SUBJECT> <P>(a) OWCP shall automatically exclude a physician, hospital, or provider of medical services or supplies who:</P> <P>(1) Has been convicted of a crime described in § 30.715(a); or</P> <P>(2) Has been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any federal or state program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies.</P> <P>(b) The exclusion applies to participating in the program and to seeking payment under this part for services performed after the date of the entry of the judgment of conviction or order of exclusion, suspension or resignation, as the case may be, by the court or agency concerned. Proof of the conviction, exclusion, suspension or resignation may consist of a copy thereof authenticated by the seal of the court or agency concerned.</P> </SECTION> <SECTION> <SECTNO>§ 30.717</SECTNO> <SUBJECT>When are OWCP's exclusion procedures initiated?</SUBJECT> <P>Upon receipt of information indicating that a physician, hospital or provider of medical services or supplies (hereinafter the provider) has engaged in activities enumerated in paragraphs (c) through (h) of § 30.715, the Regional Director, after completion of inquiries he or she deems appropriate, may initiate procedures to exclude the provider from participation in the EEOICPA program. For the purposes of these procedures, “Regional Director” may include any officer designated to act on his or her behalf.</P> </SECTION> <SECTION> <SECTNO>§ 30.718</SECTNO> <SUBJECT>How is a provider notified of OWCP's intent to exclude him or her?</SUBJECT> <P>The Regional Director shall initiate the exclusion process by sending the provider a letter, by certified mail and <PRTPAGE P="130"/>with return receipt requested, which shall contain the following:</P> <P>(a) A concise statement of the grounds upon which exclusion shall be based;</P> <P>(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;</P> <P>(c) An invitation to the provider to:</P> <P>(1) Resign voluntarily from participation in the EEOICPA program without admitting or denying the allegations presented in the letter; or</P> <P>(2) Request that the decision on exclusion be based upon the existing record and any additional documentary information the provider may wish to furnish;</P> <P>(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;</P> <P>(e) A notice that should the provider fail to answer (as described in § 30.719) the letter of intent within 30 calendar days of receipt, the Regional Director may deem the allegations made therein to be true and may order exclusion of the provider without conducting any further proceedings; and</P> <P>(f) The name and address of the OWCP representative who shall be responsible for receiving the answer from the provider.</P> </SECTION> <SECTION> <SECTNO>§ 30.719</SECTNO> <SUBJECT>What requirements must the provider's reply and OWCP's decision meet?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) By arrangement with the OWCP representative, the provider may inspect or request copies of information in the record at any time prior to the Regional Director's decision.</P> <P>(d) The Regional Director shall issue his or her decision in writing, and shall send a copy of the decision to the provider by certified mail, return receipt requested. The decision shall advise the provider of his or her right to request, within 30 days of the date of the adverse decision, a formal hearing before an administrative law judge under the procedures set forth in § 30.720. The filing of a request for a hearing within the time specified shall stay the effectiveness of the decision to exclude.</P> </SECTION> <SECTION> <SECTNO>§ 30.720</SECTNO> <SUBJECT>How can an excluded provider request a hearing?</SUBJECT> <P>A request for a hearing shall be sent to the OWCP representative named pursuant to § 30.718(f) and shall contain:</P> <P>(a) A concise notice of the issues on which the provider desires to give evidence at the hearing;</P> <P>(b) Any request for a more definite statement by OWCP;</P> <P>(c) Any request for the presentation of oral argument or evidence; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 30.721</SECTNO> <SUBJECT>How are hearings assigned and scheduled?</SUBJECT> <P>(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:</P> <P>(1) A ruling on each item raised in the request for hearing;<PRTPAGE P="131"/> </P> <P>(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</P> <P>(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.</P> <P>(b) The purpose of the designation of issues is to provide for an effective hearing process. The provider is entitled to be heard on any matter placed in issue by his or her response to the Notice of Intent to Exclude, and may designate “all issues” for purposes of hearing. However, a specific designation of issues is required if the provider wishes to interpose affirmative defenses or request the certification of questions for an advisory opinion.</P> </SECTION> <SECTION> <SECTNO>§ 30.722</SECTNO> <SUBJECT>How are subpoenas or advisory opinions obtained?</SUBJECT> <P>(a) In exclusion proceedings involving medical services provided under Part B of the Act only, the provider may apply to the administrative law judge for the issuance of subpoenas upon a showing of good cause therefore.</P> <P>(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:</P> <P>(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;</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 30.723</SECTNO> <SUBJECT>How will the administrative law judge conduct the hearing and issue the recommended decision?</SUBJECT> <P>(a) To the extent appropriate, proceedings before the administrative law judge shall be governed by 29 CFR part 18.</P> <P>(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.</P> <P>(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.</P> <P>(d) In conjunction with the hearing, the administrative law judge may:</P> <P>(1) Administer oaths; and</P> <P>(2) Examine witnesses.</P> <P>(e) At the conclusion of the hearing, the administrative law judge shall issue a written decision and cause it to be served on all parties to the proceeding, their representatives and OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.724</SECTNO> <SUBJECT>How can a party request review by OWCP of the administrative law judge's recommended decision?</SUBJECT> <P>(a) Any party adversely affected or aggrieved by the decision of the administrative law judge may file a petition for discretionary review with the Director for Energy Employees Occupational Illness Compensation within 30 days after issuance of such decision. The administrative law judge's decision, however, shall be effective on the date issued and shall not be stayed except upon order of the Director.</P> <P>(b) Review by the Director for Energy Employees Occupational Illness Compensation shall not be a matter of right <PRTPAGE P="132"/>but of the sound discretion of the Director.</P> <P>(c) Petitions for discretionary review shall be filed only upon one or more of the following grounds:</P> <P>(1) A finding or conclusion of material fact is not supported by substantial evidence;</P> <P>(2) A necessary legal conclusion is erroneous;</P> <P>(3) The decision is contrary to law or to the duly promulgated rules or decisions of OWCP;</P> <P>(4) A substantial question of law, policy, or discretion is involved; or</P> <P>(5) A prejudicial error of procedure was committed.</P> <P>(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.</P> <P>(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.</P> <P>(f) If a petition is granted, review shall be limited to the questions raised by the petition.</P> <P>(g) A petition not granted within 20 days after receipt of the petition is deemed denied.</P> </SECTION> <SECTION> <SECTNO>§ 30.725</SECTNO> <SUBJECT>What are the effects of non-automatic exclusion?</SUBJECT> <P>(a) OWCP shall give notice of the exclusion of a physician, hospital or provider of medical services or supplies to:</P> <P>(1) All OWCP district offices;</P> <P>(2) CMS; and</P> <P>(3) All employees who are known to have had treatment, services or supplies from the excluded provider within the six-month period immediately preceding the order of exclusion.</P> <P>(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:</P> <P>(1) Such treatment, service or supply was rendered in an emergency by an excluded physician; or</P> <P>(2) The employee could not reasonably have been expected to know of such exclusion.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 30.726</SECTNO> <SUBJECT>How can an excluded provider be reinstated?</SUBJECT> <P>(a) If a physician, hospital, or provider of medical services or supplies has been automatically excluded pursuant to § 30.716, the provider excluded will automatically be reinstated upon notice to OWCP that the conviction or exclusion which formed the basis of the automatic exclusion has been reversed or withdrawn. However, an automatic reinstatement shall not preclude OWCP from instituting exclusion proceedings based upon the underlying facts of the matter.</P> <P>(b) A physician, hospital, or provider of medical services or supplies excluded from participation as a result of an order issued pursuant to this subpart may apply for reinstatement one year after the entry of the order of exclusion, unless the order expressly provides for a shorter period. An application for reinstatement shall be addressed to the Director for Energy Employees Occupational Illness Compensation, and shall contain a concise statement of the basis for the application. The application should be accompanied by supporting documents and affidavits.</P> <P>(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.</P> <P>(d) The Director for Energy Employees Occupational Illness Compensation shall order reinstatement only in instances where such reinstatement is clearly consistent with the goal of this subpart to protect the EEOICPA program against fraud and abuse. To satisfy this requirement the provider must provide reasonable assurances <PRTPAGE P="133"/>that the basis for the exclusion will not be repeated.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Wage-Loss Determinations Under Part E of EEOICPA</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 30.800</SECTNO> <SUBJECT>What types of wage-loss are compensable under Part E of EEOICPA?</SUBJECT> <P>Years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a Department of Energy facility or a RECA section 5 facility, as appropriate, may be compensable under Part E of the Act. Whether years of wage-loss are compensable depends on determinations with respect to:</P> <P>(a) The average annual wage of the employee as determined by OWCP in accordance with § 30.810;</P> <P>(b) The percentage of his or her average annual wage that the employee was able to earn during the calendar year(s) in question as determined by OWCP in accordance with § 30.811; and</P> <P>(c) Whether the employee's inability to earn at least as much as his or her average annual wage was due to a covered illness as defined in § 30.5(r).</P> </SECTION> <SECTION> <SECTNO>§ 30.801</SECTNO> <SUBJECT>What special definitions does OWCP use in connection with Part E wage-loss determinations?</SUBJECT> <P>For the purposes of paying compensation based on wage-loss under Part E of the Act, OWCP will apply the following definitions:</P> <P>(a) <E T="03">Average annual wage</E> means four times the average quarterly wages of a covered Part E employee for the 12 quarters preceding the quarter during which he or she first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility, excluding any quarters during which the employee was unemployed. Because being “retired” is not equivalent to being “unemployed,” quarters during which an employee had no wages because he or she was retired will not be excluded from this calculation.</P> <P>(b) <E T="03">Normal retirement age</E> means the age at which a covered Part E employee first became eligible for unreduced retirement benefits under the Old-Age, Survivors and Disability Insurance (OASDI) provisions of the Social Security Act. In general, persons born during or before 1937 are eligible for unreduced OASDI retirement benefits at age 65, and that age increases in monthly increments until it reaches 67, which is the age at which persons born during or after 1960 become eligible for unreduced OASDI retirement benefits.</P> <P>(c) <E T="03">Quarter</E> means the three-month period January through March, April through June, July through September, or October through December.</P> <P>(d) <E T="03">Quarter during which the employee was unemployed</E> means any quarter during which the covered Part E employee had $700 (in constant 2005 dollars) or less in wages unless the quarter is one during which the employee was retired.</P> <P>(e) <E T="03">Year of wage-loss</E> means a calendar year during which the covered Part E employee's earnings were less than his or her average annual wage, after such earnings have been adjusted using the Consumer Price Index for All Urban Consumers (CPI-U), as produced by the Bureau of Labor Statistics, to reflect their value in the year during which the employee first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence of Wage-Loss</HD> <SECTION> <SECTNO>§ 30.805</SECTNO> <SUBJECT>What evidence does OWCP use to determine a covered Part E employee's average annual wage and whether he or she experienced compensable wage-loss under Part E of EEOICPA?</SUBJECT> <P>(a) OWCP may rely on quarterly wages information reported to the Social Security Administration to establish a covered Part E employee's presumed average annual wage (see § 30.810) and the duration and extent of any years of wage-loss that are compensable under Part E of the Act (see § 30.811). OWCP may also rely on other probative evidence of a covered Part E employee's wages, and may ask the claimant for additional evidence necessary to make this determination, if necessary. For the purposes of making <PRTPAGE P="134"/>these two types of determinations, OWCP will consider all monetary payments that the covered Part E employee received in a quarter from employment or services, except for monetary payments that were not taxable as income during that quarter under the Internal Revenue Code, to be “wages.”</P> <P>(b) OWCP also requires the submission of rationalized medical evidence of sufficient probative value to establish that the period of wage-loss at issue is causally related to the covered Part E employee's covered illness.</P> </SECTION> <SECTION> <SECTNO>§ 30.806</SECTNO> <SUBJECT>May a claimant submit factual evidence in support of a different determination of average annual wage and/or wage-loss than that found by OWCP?</SUBJECT> <P>A claimant who disagrees with the evidence OWCP has obtained under § 30.805(a) and alleges a different average annual wage for the covered Part E employee, or that there was a greater duration or extent of wage-loss, may submit records that were produced in the ordinary course of business due to the employee's employment to rebut that evidence, to the extent that such records are determined to be authentic by OWCP by a preponderance of the evidence. The average annual wage and/or wage-loss of the covered Part E employee will then be determined by OWCP in the exercise of its discretion.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Determinations of Average Annual Wage and Percentages of Loss</HD> <SECTION> <SECTNO>§ 30.810</SECTNO> <SUBJECT>How will OWCP calculate the average annual wage of a covered Part E employee?</SUBJECT> <P>To calculate the average annual wage of a covered Part E employee as defined in § 30.801(a), OWCP will:</P> <P>(a) Aggregate the wages for the twelve quarters that preceded the quarter during which the covered Part E employee first experienced wage-loss due to exposure to a toxic substance at a DOE facility or a RECA section 5 facility, excluding any quarter during which the employee was unemployed;</P> <P>(b) Add any additional wages earned by the employee during those same quarters as evidenced by records described in §§ 30.805(a) and 30.806;</P> <P>(c) Divide the sum of paragraphs (a) and (b) of this section by 12 less the number of quarters during which the employee was unemployed; and</P> <P>(d) Multiply this figure by four to calculate the covered Part E employee's average annual wage.</P> </SECTION> <SECTION> <SECTNO>§ 30.811</SECTNO> <SUBJECT>How will OWCP calculate the duration and extent of a covered Part E employee's initial period of compensable wage-loss?</SUBJECT> <P>(a) To determine the initial calendar years of wage-loss, OWCP will use the evidence it receives under §§ 30.805 and 30.806 to determine the quarter in which a covered Part E employee first sustained wage-loss due to exposure to a toxic substance while engaged in employment at a DOE facility or a RECA section 5 facility, as appropriate.</P> <P>(b) OWCP will then compare the calendar-year wages for that employee, as adjusted, with the average annual wage determined under § 30.810 for each calendar year beginning with the calendar year that includes the quarter in which the wage-loss commenced, and concluding with the last calendar year of wage-loss prior to the submission of the claim or the calendar year in which the employee reached normal retirement age (as defined in § 30.801(b)), whichever occurred first.</P> <P>(c) OWCP will then aggregate separately the number of calendar years of wage-loss in which the employee's wages, as adjusted, did not exceed 50 percent of the average annual wage determined under § 30.810, and the number of calendar years of wage-loss in which the employee's wages, as adjusted, exceeded 50 percent of such average annual wage, but did not exceed 75 percent of such average annual wage.</P> <P>(d) For each calendar year of wage-loss determined under paragraph (c) of this section during which the employee's wages did not exceed 50 percent of his or her average annual wage, OWCP will pay the employee $15,000 as compensation for wage-loss. For each calendar year of wage-loss determined under paragraph (c) of this section during which the employee's calendar-year wages exceeded 50 percent of his or her average annual wage but did not exceed 75 percent of such average annual wage, OWCP will pay the employee $10,000 as compensation for wage-loss.</P> </SECTION> <SECTION> <PRTPAGE P="135"/> <SECTNO>§ 30.812</SECTNO> <SUBJECT>May a covered Part E employee claim for subsequent periods of compensable wage-loss?</SUBJECT> <P>A covered Part E employee previously awarded compensation for wage-loss under § 30.811 may file for additional compensation for wage-loss suffered by the employee during periods subsequent to a period for which a wage-loss claim for the employee has already been adjudicated by OWCP. However, no compensation for wage-loss shall be awarded for any period following the year during which the covered Part E employee attained normal retirement age for purposes of the Social Security Act as described in § 30.801(b).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Rules for Certain Survivor Claims Under Part E of EEOICPA</HD> <SECTION> <SECTNO>§ 30.815</SECTNO> <SUBJECT>Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee's compensable wage-loss?</SUBJECT> <P>(a) For purposes of adjudicating a claim of a survivor of a deceased covered Part E employee only, OWCP will presume that such employee experienced wage-loss for each calendar year subsequent to the calendar year of his or her death through and including the calendar year in which the employee would have reached normal retirement age under the Social Security Act. During these particular calendar years, OWCP will also presume that the deceased covered Part E employee's subsequent calendar-year wages did not exceed 50 percent of his or her average annual wage as determined under § 30.810.</P> <P>(b) Except as provided in paragraph (a) of this section, OWCP will calculate the wage-loss of a deceased covered Part E employee in conformance with the provisions of §§ 30.800 through 30.811.</P> <P>(c) If OWCP determines that a deceased covered Part E employee had an aggregate of not less than ten calendar years of adjusted earnings that did not exceed 50 percent of his or her average annual earnings, it will pay the eligible surviving beneficiary(s) additional compensation (the basic survivor award payable under section 7385s-3(a)(1) is $125,000) in the amount of $25,000 pursuant to section 7385s-3(a)(2) of the Act. In the alternative, if OWCP determines that the aggregate number of such years is not less than 20 years, it will pay the eligible surviving beneficiary(s) additional compensation in the amount of $50,000 pursuant to section 7385s-3(a)(3).</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Impairment Benefits Under Part E of EEOICPA</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 30.900</SECTNO> <SUBJECT>Who can receive impairment benefits under Part E?</SUBJECT> <P>In order to receive impairment benefits under Part E, the employee must show that:</P> <P>(a) He or she is a covered Part E employee who has been determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate, pursuant to either §§ 30.210 through 30.215 or §§ 30.230 through 30.232 of these regulations; and</P> <P>(b) He or she has been determined to have an impairment, pursuant to the regulations set out in this subpart, that is the result of the covered illness referred to in paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 30.901</SECTNO> <SUBJECT>How does OWCP determine the extent of an employee's impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?</SUBJECT> <P>(a) OWCP will determine the amount of impairment benefits to which an employee is entitled based on one or more impairment evaluations submitted by physicians. An impairment evaluation shall contain the physician's opinion on the extent of whole person impairment of all organs and body functions of the employee that are compromised or otherwise affected by the employee's covered illness or illnesses, which shall be referred to as a “minimum impairment rating.”</P> <P>(b) The minimum impairment rating shall be determined in accordance with the current edition of the American Medical Association's <E T="03">Guides to the Evaluation of Permanent Impairment</E> (AMA's <E T="03">Guides</E>). In making impairment <PRTPAGE P="136"/>benefit determinations, OWCP will only consider medical reports from physicians who are certified by the relevant medical board and who satisfy any additional criteria determined by OWCP to be necessary to qualify to perform impairment evaluations under Part E, including any specific training in use of the AMA's <E T="03">Guides</E>, specific training and experience related to particular conditions and other objective factors.</P> <P>(c) OWCP will establish criteria based upon objective factors such as training and certification that must be met by physicians preparing impairment evaluations in order for an impairment evaluation to be considered in determining an impairment award. Such criteria shall be made available to claimants and the public by OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.902</SECTNO> <SUBJECT>How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E?</SUBJECT> <P>OWCP will multiply the percentage points of the minimum impairment rating by $2,500 to calculate the amount of the award.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Medical Evidence of Impairment</HD> <SECTION> <SECTNO>§ 30.905</SECTNO> <SUBJECT>How may an impairment evaluation be obtained?</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, OWCP may request that an employee undergo an evaluation of his or her permanent impairment that specifies the percentage points that are the result of the employee's covered illness or illnesses. To be of any probative value, such evaluation must be performed by a physician who meets the criteria OWCP has identified for physicians performing impairment evaluations for the pertinent covered illness or illnesses in accordance with the AMA's <E T="03">Guides.</E> </P> <P>(b) In lieu of submitting an evaluation requested by OWCP under paragraph (a) of this section, an employee may obtain an impairment evaluation at his own initiative and submit it to OWCP for consideration. Such an evaluation will be deemed to have sufficient probative value to be considered in the adjudication of impairment benefits by OWCP only if:</P> <P>(1) The evaluation was performed by a physician who meets the criteria identified by OWCP for the covered illness or illnesses in question;</P> <P>(2) The evaluation was performed no more than one year before the date that it was received by OWCP; and</P> <P>(3) The evaluation conforms to all applicable requirements set out in this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.906</SECTNO> <SUBJECT>Who will pay for an impairment evaluation?</SUBJECT> <P>(a) OWCP will pay for one impairment evaluation obtained by an employee if it meets the criteria set out in § 30.905(b), unless it was performed by a physician prior to the date that the claim for Part E benefits is filed, or obtained for a claim in which OWCP finds that the employee did not contract a covered illness. At its discretion, OWCP may direct that the employee undergo additional evaluations. OWCP will pay for any such additional evaluations and will reimburse the employee for any reasonable and necessary costs incident to the evaluations, as described in §§ 30.404 and 30.412 of this part.</P> <P>(b) Except for one impairment evaluation obtained pursuant to § 30.905(b) and meeting the criteria set out in § 30.905(b)(1), (2) and (3), the employee must pay for any impairment evaluations not directed by OWCP.</P> </SECTION> <SECTION> <SECTNO>§ 30.907</SECTNO> <SUBJECT>Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?</SUBJECT> <P>(a) An employee may submit arguments challenging an impairment evaluation, and/or additional medical evidence of impairment, before the district office issues a recommended decision on his or her claim. However, the district office will not consider an additional impairment evaluation, even if it differs from the impairment evaluation obtained under §§ 30.905 or 30.906, if it does not meet the criteria listed in § 30.905(b)(1), (2) and (3).</P> <P>(b) If the district office obtains an additional impairment evaluation that differs from the impairment evaluation obtained under §§ 30.905 or 30.906, the district office will base its recommended determinations regarding <PRTPAGE P="137"/>impairment upon the evidence it considers to have the greatest probative value, after evaluating all relevant evidence of impairment in the record, including evidence from directed impairment evaluations and referee impairment evaluations, if any, that it deems necessary pursuant to §§ 30.410 and 30.411 of this part.</P> </SECTION> <SECTION> <SECTNO>§ 30.908</SECTNO> <SUBJECT>How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?</SUBJECT> <P>(a) If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will not consider the additional impairment evaluation if it does not meet the criteria listed in § 30.905(b)(1), (2) and (3).</P> <P>(b) The employee shall bear the burden of proving that the additional impairment evaluation submitted is more probative than the evaluation relied upon by the district office to determine the employee's recommended minimum impairment rating.</P> <P>(c) If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative. The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ratable Impairments</HD> <SECTION> <SECTNO>§ 30.910</SECTNO> <SUBJECT>Will an impairment that cannot be assigned a numerical percentage using the AMA's Guides be included in the impairment rating?</SUBJECT> <P>(a) An impairment of an organ or body function that cannot be assigned a numerical impairment percentage using the AMA's <E T="03">Guides</E> will not be included in the employee's impairment rating.</P> <P>(b) A mental impairment that does not originate from a documented physical dysfunction of the nervous system, and cannot be assigned a numerical percentage using the AMA's <E T="03">Guides</E>, will not be included in the impairment rating for the employee. Mental impairments that are due to documented physical dysfunctions of the nervous system can be assigned numerical percentages using the AMA's <E T="03">Guides</E> and will be included in the rating.</P> </SECTION> <SECTION> <SECTNO>§ 30.911</SECTNO> <SUBJECT>Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?</SUBJECT> <P>(a) An impairment that is the result of a covered illness will be included in the employee's impairment rating determined by OWCP under § 30.901 only if OWCP concludes that the impairment has reached maximum medical improvement, which means that it is well-stabilized and unlikely to improve substantially with or without medical treatment.</P> <P>(b) Notwithstanding paragraph (a) of this section, if OWCP finds that an employee's covered illness is in the terminal stages, based upon probative medical evidence, an impairment that results from such covered illness will be included in the impairment rating for the employee even if it has not reached maximum medical improvement.</P> </SECTION> <SECTION> <SECTNO>§ 30.912</SECTNO> <SUBJECT>Can a covered Part E employee receive benefits for additional impairment following an award of such benefits by OWCP?</SUBJECT> <P>A covered Part E employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits. Such claim must be based on an increase in the impairment rating that is the result of the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP. OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits. However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> </SUBCHAP> <SUBCHAP> <PRTPAGE P="138"/> <RESERVED>SUBCHAPTERS D-E [RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="139"/> <HD SOURCE="HED">SUBCHAPTER F—COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES</HD> <PART> <EAR>Pt. 61</EAR> <HD SOURCE="HED">PART 61—CLAIMS FOR COMPENSATION UNDER THE WAR HAZARDS COMPENSATION ACT, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>61.1</SECTNO> <SUBJECT>Statutory provisions.</SUBJECT> <SECTNO>61.2</SECTNO> <SUBJECT>Administration of the Act and this chapter.</SUBJECT> <SECTNO>61.3</SECTNO> <SUBJECT>Purpose and scope of this part.</SUBJECT> <SECTNO>61.4</SECTNO> <SUBJECT>Definitions and use of terms.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Reimbursement of Carriers</HD> <SECTNO>61.100</SECTNO> <SUBJECT>General reimbursement provisions.</SUBJECT> <SECTNO>61.101</SECTNO> <SUBJECT>Filing a request for reimbursement.</SUBJECT> <SECTNO>61.102</SECTNO> <SUBJECT>Disposition of reimbursement requests.</SUBJECT> <SECTNO>61.103</SECTNO> <SUBJECT>Examination of records of carrier.</SUBJECT> <SECTNO>61.104</SECTNO> <SUBJECT>Reimbursement of claims expense.</SUBJECT> <SECTNO>61.105</SECTNO> <SUBJECT>Direct payment of benefits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Compensation for Injury, Disability or Death</HD> <SECTNO>61.200</SECTNO> <SUBJECT>Entitlement to benefits.</SUBJECT> <SECTNO>61.201</SECTNO> <SUBJECT>Filing of notice and claim.</SUBJECT> <SECTNO>61.202</SECTNO> <SUBJECT>Time limitations for filing notice and claim.</SUBJECT> <SECTNO>61.203</SECTNO> <SUBJECT>Limitations on and deductions from benefits.</SUBJECT> <SECTNO>61.204</SECTNO> <SUBJECT>Furnishing of medical treatment.</SUBJECT> <SECTNO>61.205</SECTNO> <SUBJECT>Burial expense.</SUBJECT> <SECTNO>61.206</SECTNO> <SUBJECT>Reports by employees and dependents.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Detention Benefits</HD> <SECTNO>61.300</SECTNO> <SUBJECT>Payment of detention benefits.</SUBJECT> <SECTNO>61.301</SECTNO> <SUBJECT>Filing a claim for detention benefits.</SUBJECT> <SECTNO>61.302</SECTNO> <SUBJECT>Time limitations for filing a claim for detention benefits.</SUBJECT> <SECTNO>61.303</SECTNO> <SUBJECT>Determination of detention status.</SUBJECT> <SECTNO>61.304</SECTNO> <SUBJECT>Limitations on and deductions from detention benefits.</SUBJECT> <SECTNO>61.305</SECTNO> <SUBJECT>Responsibilities of dependents receiving detention benefits.</SUBJECT> <SECTNO>61.306</SECTNO> <SUBJECT>Transportation of persons released from detention and return of employees.</SUBJECT> <SECTNO>61.307</SECTNO> <SUBJECT>Transportation of recovered bodies of missing persons.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Miscellaneous Provisions</HD> <SECTNO>61.400</SECTNO> <SUBJECT>Custody of records relating to claims under the War Hazards Compensation Act.</SUBJECT> <SECTNO>61.401</SECTNO> <SUBJECT>Confidentiality of records.</SUBJECT> <SECTNO>61.402</SECTNO> <SUBJECT>Protection, release, inspection and copying of records.</SUBJECT> <SECTNO>61.403</SECTNO> <SUBJECT>Approval of claims for legal and other services.</SUBJECT> <SECTNO>61.404</SECTNO> <SUBJECT>Assignments; creditors.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 3679, Feb. 8, 1988, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 61.1</SECTNO> <SUBJECT>Statutory provisions</SUBJECT> <P>(a) The War Hazards Compensation Act, as amended (42 U.S.C. 1701 <E T="03">et seq.</E>) provides for reimbursement of workers' compensation benefits paid under the Defense Base Act (42 U.S.C. 1651 <E T="03">et seq.</E>), or under other workers' compensation laws as described in § 61.100(a), for injury or death causally related to a war-risk hazard.</P> <P>(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—</P> <P>(1) Any person subject to workers' compensation coverage under the Defense Base Act;</P> <P>(2) Any person engaged by the United States under a contract for his or her personal services outside the continental United States;</P> <P>(3) Any person subject to workers' compensation coverage under the Nonappropriated Fund Instrumentalities Act (5 U.S.C. 8171 <E T="03">et seq.</E>);</P> <P>(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 <PRTPAGE P="140"/>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</P> <P>(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.</P> <P>(c) The Act also provides for payment of detention benefits to an employee specified in paragraph (a) of this section who—</P> <P>(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;</P> <P>(2) Is known to have been taken by a hostile force or person as a prisoner or hostage; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.2</SECTNO> <SUBJECT>Administration of the Act and this chapter.</SUBJECT> <P>(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.</P> <P>(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</P> </SECTION> <SECTION> <SECTNO>§ 61.3</SECTNO> <SUBJECT>Purpose and scope of this part.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) Subpart D contains provisions relating to claims for detention benefits under section 101(b) of the Act.</P> <P>(f) Subpart E contains miscellaneous provisions concerning disclosure of program information, approval of claims for legal services, and assignment of claim.</P> </SECTION> <SECTION> <SECTNO>§ 61.4</SECTNO> <SUBJECT>Definitions and use of terms.</SUBJECT> <P>For the purpose of this part—</P> <P>(a) <E T="03">The Act</E> means the War Hazards Compensation Act, 42 U.S.C. 1701 <E T="03">et seq.,</E> as amended.</P> <P>(b) <E T="03">Office</E> or <E T="03">OWCP</E> means the Office of Workers' Compensation Programs, Employment Standards Administration, United States Department of Labor.</P> <P>(c) <E T="03">Contractor with the United States</E> includes any contractor, subcontractor or subordinate subcontractor.<PRTPAGE P="141"/> </P> <P>(d) <E T="03">Carrier</E> means any payer of benefits for which reimbursement is requested under the Act, and includes insurance carriers, self-insured employers and compensation funds.</P> <P>(e) <E T="03">War-risk hazard</E> 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—</P> <P>(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;</P> <P>(2) Action of a hostile force or person, including rebellion or insurrection against the United States or any of its allies;</P> <P>(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);</P> <P>(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</P> <P>(5) The operation of vessels or aircraft in a zone of hostilities or engaged in war activities.</P> <P>(f) <E T="03">Hostile force or person</E> means any nation, any subject of a foreign nation, or any other person serving a foreign nation—</P> <P>(1) Engaged in a war against the United States or any of its allies;</P> <P>(2) Engaged in armed conflict, whether or not war has been declared, against the United States or any of its allies; or</P> <P>(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.</P> <P>(g) <E T="03">Allies</E> 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.</P> <P>(h) <E T="03">War activities</E> includes activities directly relating to military operations.</P> <P>(i) <E T="03">Continental United States</E> means the States and the District of Columbia.</P> <P>(j) <E T="03">Injury</E> 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.</P> <P>(k) <E T="03">Death</E> means death resulting from an injury, as defined in this section.</P> <P>(l) The terms <E T="03">compensation,</E> <E T="03">physician,</E> and <E T="03">medical, surgical, and hospital services and supplies</E> 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 <E T="03">et seq.</E>).</P> <P>(m) The terms <E T="03">disability,</E> <E T="03">wages,</E> <E T="03">child,</E> <E T="03">grandchild,</E> <E T="03">brother,</E> <E T="03">sister,</E> <E T="03">parent,</E> <E T="03">widow,</E> <E T="03">widower,</E> <E T="03">student,</E> <E T="03">adoption</E> or <E T="03">adopted</E> are construed and applied as defined in the Longshore and Harbor Workers' Compensation Act, as amended (35 U.S.C. 901 <E T="03">et seq.</E>).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Reimbursement of Carriers</HD> <SECTION> <SECTNO>§ 61.100</SECTNO> <SUBJECT>General reimbursement provisions.</SUBJECT> <P>(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 § 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.</P> <P>(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 <PRTPAGE P="142"/>has been reimbursed, paid, or compensated for the loss for which reimbursement is requested.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.101</SECTNO> <SUBJECT>Filing a request for reimbursement.</SUBJECT> <P>(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;</P> <P>(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.</P> <P>(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—</P> <P>(1) Notice and claim forms;</P> <P>(2) Statements of the employee or employer;</P> <P>(3) Medical reports;</P> <P>(4) Compensation orders; and</P> <P>(5) Proof of liability (e.g., insurance policy or other documentation).</P> </SECTION> <SECTION> <SECTNO>§ 61.102</SECTNO> <SUBJECT>Disposition of reimbursement requests.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(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;</P> <P>(2) Failed to take reasonable measures to contest, reduce, or terminate its liability by appropriate available <PRTPAGE P="143"/>procedure under workers' compensation law or otherwise; or</P> <P>(3) Failed to make reasonable and adequate investigation or injury as to the right of any person to any benefit or payment; or</P> <P>(4) Failed to avoid augmentation of liability by reason of delay in recognizing or discharging a compensation claimant's right to benefits.</P> </SECTION> <SECTION> <SECTNO>§ 61.103</SECTNO> <SUBJECT>Examination of records of carrier.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 61.104</SECTNO> <SUBJECT>Reimbursement of claims expense.</SUBJECT> <P>(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.</P> <P>(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 § 61.101.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.105</SECTNO> <SUBJECT>Direct payment of benefits.</SUBJECT> <P>(a) The Office may pay benefits, as they accrue, directly to any entitled beneficiary in lieu of reimbursement of a carrier.</P> <P>(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.</P> <P>(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.</P> <P>(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, <E T="03">et seq.</E>).</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="144"/> <HD SOURCE="HED">Subpart C—Compensation for Injury, Disability or Death</HD> <SECTION> <SECTNO>§ 61.200</SECTNO> <SUBJECT>Entitlement to benefits.</SUBJECT> <P>(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 § 61.1(a), whether or not the person was engaged in the course of his or her employment at the time of the injury.</P> <P>(b) Compensation under this subpart is paid under the provisions of the Federal Employees' Compensation Act, as amended (5 U.S.C. 8101 <E T="03">et seq.</E>), 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 <E T="03">et seq.</E>).</P> <P>(c) The Office may not approve a claim for compensation if any of the following conditions are met:</P> <P>(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.</P> <P>(2) The claim is filed due to the injury or death of a prisoner of war detained or utilized by the United States.</P> <P>(3) The person seeking benefits recovers or receives workers' compensation benefits from any other source for the same injury or death.</P> <P>(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.</P> <P>(5) The employee is convicted in a court of competent jurisdiction of any subversive act against the United States or any of its allies.</P> </SECTION> <SECTION> <SECTNO>§ 61.201</SECTNO> <SUBJECT>Filing of notice and claim.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 61.202</SECTNO> <SUBJECT>Time limitations for filing notice and claim.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 61.203</SECTNO> <SUBJECT>Limitations on and deductions from benefits.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="145"/>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.204</SECTNO> <SUBJECT>Furnishing of medical treatment.</SUBJECT> <P>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 <E T="03">et seq.</E>).</P> </SECTION> <SECTION> <SECTNO>§ 61.205</SECTNO> <SUBJECT>Burial expense.</SUBJECT> <P>(a) When the death of a person listed in § 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.206</SECTNO> <SUBJECT>Reports by employees and dependents.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Detention Benefits</HD> <SECTION> <SECTNO>§ 61.300</SECTNO> <SUBJECT>Payment of detention benefits.</SUBJECT> <P>(a) The Office shall pay detention benefits to any person listed in § 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.</P> <P>(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 <PRTPAGE P="146"/>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.</P> <P>(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.</P> <P>(d) The Office may not pay detention benefits under any of the following conditions:</P> <P>(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.</P> <P>(2) The person detained is a prisoner of war detained or utilized by the United States.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.301</SECTNO> <SUBJECT>Filing a claim for detention benefits.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.302</SECTNO> <SUBJECT>Time limitations for filing a claim for detention benefits.</SUBJECT> <P>The time limitation provisions found in the Federal Employees' Compensation Act, as amended (5 U.S.C. 8101 <E T="03">et seq.</E>) 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.</P> </SECTION> <SECTION> <SECTNO>§ 61.303</SECTNO> <SUBJECT>Determination of detention status.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 61.304</SECTNO> <SUBJECT>Limitations on and deductions from detention benefits.</SUBJECT> <P>(a) In determining benefits for detention, the Office shall not apply the minimum limits found in sections 6(b) <PRTPAGE P="147"/>and 9(e) of the Longshore and Harbor Workers' Compensation Act.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.305</SECTNO> <SUBJECT>Responsibilities of dependents receiving detention benefits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 61.306</SECTNO> <SUBJECT>Transportation of persons released from detention and return of employees.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.307</SECTNO> <SUBJECT>Transportation of recovered bodies of missing persons.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Miscellaneous Provisions</HD> <SECTION> <SECTNO>§ 61.400</SECTNO> <SUBJECT>Custody of records relating to claims under the War Hazards Compensation Act.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 61.401</SECTNO> <SUBJECT>Confidentiality of records.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 61.402</SECTNO> <SUBJECT>Protection, release, inspection and copying of records.</SUBJECT> <P>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 <E T="04">Federal Register.</E> </P> </SECTION> <SECTION> <PRTPAGE P="148"/> <SECTNO>§ 61.403</SECTNO> <SUBJECT>Approval of claims for legal and other services.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 61.404</SECTNO> <SUBJECT>Assignments; creditors.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="149"/> <HD SOURCE="HED">SUBCHAPTER G—COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE IMPERIAL JAPANESE GOVERNMENT</HD> <PART> <EAR>Pt. 71</EAR> <HD SOURCE="HED">PART 71—GENERAL PROVISIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>71.1</SECTNO> <SUBJECT>General administrative provisions.</SUBJECT> <SECTNO>71.2</SECTNO> <SUBJECT>Computation of benefits.</SUBJECT> <SECTNO>71.3</SECTNO> <SUBJECT>Deductions from benefits.</SUBJECT> <SECTNO>71.4</SECTNO> <SUBJECT>Limitation upon benefits.</SUBJECT> <SECTNO>71.5</SECTNO> <SUBJECT>Payment of benefits.</SUBJECT> <SECTNO>71.6</SECTNO> <SUBJECT>Notice of injury or death.</SUBJECT> <SECTNO>71.7</SECTNO> <SUBJECT>Claim filing, processing, adjudication and time limits.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>16 FR 2933, Apr. 4, 1951, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 71.1</SECTNO> <SUBJECT>General administrative provisions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) As used in this subchapter:</P> <P>(1) The term “Bureau” means the Bureau of Employees' Compensation, U.S. Department of Labor.</P> <P>(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 <PRTPAGE P="150"/>inducted member of any military or naval force.</P> <P>(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.</P> <P>(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.</P> <P>(5) The term “benefit” is construed as synonymous with the term “compensation”.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 71.2</SECTNO> <SUBJECT>Computation of benefits.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 71.3</SECTNO> <SUBJECT>Deductions from benefits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 71.4</SECTNO> <SUBJECT>Limitation upon benefits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 71.5</SECTNO> <SUBJECT>Payment of benefits.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 71.6</SECTNO> <SUBJECT>Notice of injury or death.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="151"/> <SECTNO>§ 71.7</SECTNO> <SUBJECT>Claim filing, processing, adjudication and time limits.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </PART> </SUBCHAP> </CHAPTER> <CHAPTER> <LRH>20 CFR Ch. II (4-1-07 Edition)</LRH> <RRH>Railroad Retirement Board</RRH> <TOC> <TOCHD> <PRTPAGE P="153"/> <HD SOURCE="HED">CHAPTER II—RAILROAD RETIREMENT BOARD</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—GENERAL ADMINISTRATION</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>200</PT> <SUBJECT>General administration</SUBJECT> <PG>157</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—REGULATIONS UNDER THE RAILROAD RETIREMENT ACT</HD> </SUBCHAP> <CHAPTI> <PT>201</PT> <SUBJECT>Definitions</SUBJECT> <PG>186</PG> <PT>202</PT> <SUBJECT>Employers under the Act</SUBJECT> <PG>186</PG> <PT>203</PT> <SUBJECT>Employees under the Act</SUBJECT> <PG>191</PG> <PT>204</PT> <SUBJECT>Employment relation</SUBJECT> <PG>194</PG> <PT>205</PT> <SUBJECT>Employee representative</SUBJECT> <PG>196</PG> <PT>206</PT> <SUBJECT>Account benefits ratio</SUBJECT> <PG>197</PG> <PT>209</PT> <SUBJECT>Railroad employers' reports and responsibilities</SUBJECT> <PG>198</PG> <PT>210</PT> <SUBJECT>Creditable railroad service</SUBJECT> <PG>202</PG> <PT>211</PT> <SUBJECT>Creditable railroad compensation</SUBJECT> <PG>206</PG> <PT>212</PT> <SUBJECT>Military service</SUBJECT> <PG>210</PG> <PT>216</PT> <SUBJECT>Eligibility for an annuity</SUBJECT> <PG>216</PG> <PT>217</PT> <SUBJECT>Application for annuity or lump sum</SUBJECT> <PG>229</PG> <PT>218</PT> <SUBJECT>Annuity beginning and ending dates</SUBJECT> <PG>236</PG> <PT>219</PT> <SUBJECT>Evidence required for payment</SUBJECT> <PG>247</PG> <PT>220</PT> <SUBJECT>Determining disability</SUBJECT> <PG>259</PG> <PT>221</PT> <SUBJECT>Jurisdiction determinations</SUBJECT> <PG>430</PG> <PT>222</PT> <SUBJECT>Family relationships</SUBJECT> <PG>431</PG> <PT>225</PT> <SUBJECT>Primary insurance amount determinations</SUBJECT> <PG>444</PG> <PT>226</PT> <SUBJECT>Computing employee, spouse, and divorced spouse annuities</SUBJECT> <PG>456</PG> <PT>227</PT> <SUBJECT>Computing supplemental annuities</SUBJECT> <PG>469</PG> <PT>228</PT> <SUBJECT>Computation of survivor annuities</SUBJECT> <PG>470</PG> <PT>229</PT> <SUBJECT>Social security overall minimum guarantee</SUBJECT> <PG>477</PG> <PT>230</PT> <SUBJECT>Months annuities not payable by reason of work</SUBJECT> <PG>490</PG> <PT>233</PT> <SUBJECT>Reduction in the windfall benefit annuity component</SUBJECT> <PG>491</PG> <PT>234</PT> <SUBJECT>Lump-sum payments</SUBJECT> <PG>492</PG> <PT>235</PT> <SUBJECT>Payment of Social Security benefits by the Railroad Retirement Board</SUBJECT> <PG>500</PG> <PT>236-238</PT> <RESERVED>[Reserved]</RESERVED> <PT>240</PT> <RESERVED>[Reserved]</RESERVED> <PT>243</PT> <SUBJECT>Transfer, assignment, or waiver of payments</SUBJECT> <PG>501<PRTPAGE P="154"/> </PG> <PT>250</PT> <RESERVED>[Reserved]</RESERVED> <PT>255</PT> <SUBJECT>Recovery of overpayments</SUBJECT> <PG>502</PG> <PT>258</PT> <SUBJECT>Hearings before the Board or designated examiners</SUBJECT> <PG>509</PG> <PT>259</PT> <SUBJECT>Initial determinations and appeals from initial determinations with respect to employer status and employee status</SUBJECT> <PG>511</PG> <PT>260</PT> <SUBJECT>Requests for reconsideration and appeals within the Board </SUBJECT> <PG>513</PG> <PT>261</PT> <SUBJECT>Administrative finality</SUBJECT> <PG>523</PG> <PT>262</PT> <RESERVED>[Reserved]</RESERVED> <PT>266</PT> <SUBJECT>Representative payment</SUBJECT> <PG>525</PG> <PT>295</PT> <SUBJECT>Payments pursuant to court decree or court-approved property settlement</SUBJECT> <PG>532</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—REGULATIONS UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT</HD> </SUBCHAP> <CHAPTI> <PT>300</PT> <SUBJECT>Definitions</SUBJECT> <PG>538</PG> <PT>301</PT> <SUBJECT>Employers under the Act</SUBJECT> <PG>538</PG> <PT>302</PT> <SUBJECT>Qualified employee</SUBJECT> <PG>539</PG> <PT>319</PT> <SUBJECT>Procedure for determining liability for contributions or repayments of benefits</SUBJECT> <PG>541</PG> <PT>320</PT> <SUBJECT>Initial determinations under the Railroad Unemployment Insurance Act and reviews of and appeals from such determinations</SUBJECT> <PG>544</PG> <PT>321</PT> <SUBJECT>Electronic filing of applications and claims for benefits under the Railroad Unemployment Insurance Act</SUBJECT> <PG>554</PG> <PT>322</PT> <SUBJECT>Remuneration</SUBJECT> <PG>554</PG> <PT>323</PT> <SUBJECT>Nongovernmental plans for unemployment or sickness insurance</SUBJECT> <PG>559</PG> <PT>325</PT> <SUBJECT>Registration for railroad unemployment benefits</SUBJECT> <PG>561</PG> <PT>327</PT> <SUBJECT>Available for work</SUBJECT> <PG>566</PG> <PT>330</PT> <SUBJECT>Determination of daily benefit rates</SUBJECT> <PG>568</PG> <PT>332</PT> <SUBJECT>Mileage or work restrictions and stand-by or lay-over rules</SUBJECT> <PG>571</PG> <PT>335</PT> <SUBJECT>Sickness benefits</SUBJECT> <PG>573</PG> <PT>336</PT> <SUBJECT>Duration of normal and extended benefits</SUBJECT> <PG>578</PG> <PT>337</PT> <RESERVED>[Reserved]</RESERVED> <PT>340</PT> <SUBJECT>Recovery of benefits</SUBJECT> <PG>581</PG> <PT>341</PT> <SUBJECT>Statutory lien where sickness benefits paid</SUBJECT> <PG>587</PG> <PT>344</PT> <RESERVED>[Reserved]</RESERVED> <PT>345</PT> <SUBJECT>Employers' contributions and contribution reports</SUBJECT> <PG>589</PG> <PT>346</PT> <SUBJECT>Railroad hiring</SUBJECT> <PG>606</PG> <PT>348</PT> <SUBJECT>Representative payment</SUBJECT> <PG>607<PRTPAGE P="155"/> </PG> <PT>349</PT> <SUBJECT>Finality of decisions regarding unemployment and sickness insurance benefits</SUBJECT> <PG>608</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—GARNISHMENT OF BENEFITS</HD> </SUBCHAP> <CHAPTI> <PT>350</PT> <SUBJECT>Garnishment of benefits paid under the Railroad Retirement Act, the Railroad Unemployment Insurance Act, and under any other act administered by the Board</SUBJECT> <PG>610</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER E—ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS OR STATEMENTS</HD> </SUBCHAP> <CHAPTI> <PT>355</PT> <SUBJECT>Regulations under the Program Fraud Civil Remedies Act of 1986</SUBJECT> <PG>613</PG> <PT>356</PT> <SUBJECT>Civil monetary penalty inflation adjustment</SUBJECT> <PG>628</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—INTERNAL ADMINISTRATION, POLICY AND PROCEDURES</HD> </SUBCHAP> <CHAPTI> <PT>360</PT> <RESERVED>[Reserved]</RESERVED> <PT>361</PT> <SUBJECT>Recovery of debts owed to the United States Government by Government employees</SUBJECT> <PG>629</PG> <PT>362</PT> <SUBJECT>Employees' personal property claims</SUBJECT> <PG>634</PG> <PT>363</PT> <SUBJECT>Garnishment of remuneration of Board personnel</SUBJECT> <PG>637</PG> <PT>364</PT> <SUBJECT>Use of penalty mail to assist in the location and recovery of missing children</SUBJECT> <PG>639</PG> <PT>365</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Railroad Retirement Board</SUBJECT> <PG>640</PG> <PT>366</PT> <SUBJECT>Collection of debts by Federal tax refund offset</SUBJECT> <PG>646</PG> <PT>367</PT> <SUBJECT>Recovery of debts owed to the United States Government by administrative offset</SUBJECT> <PG>647</PG> <PT>368</PT> <SUBJECT>Prohibition of cigarette sales to minors</SUBJECT> <PG>650</PG> <PT>369</PT> <SUBJECT>Use of the seal of the Railroad Retirement Board</SUBJECT> <PG>651</PG> </CHAPTI> <SUBCHAP> <RESERVED>SUBCHAPTER G [RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER H—EMERGENCY REGULATIONS</HD> </SUBCHAP> <CHAPTI> <PT>375</PT> <SUBJECT>Plan of operation during a national emergency</SUBJECT> <PG>653</PG> </CHAPTI> <SUBCHAP> <RESERVED>SUBCHAPTER I [RESERVED]</RESERVED> </SUBCHAP> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="157"/> <HD SOURCE="HED">SUBCHAPTER A—GENERAL ADMINISTRATION</HD> <PART> <EAR>Pt. 200</EAR> <HD SOURCE="HED">PART 200—GENERAL ADMINISTRATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>200.1</SECTNO> <SUBJECT>Designation of central and field organization.</SUBJECT> <SECTNO>200.2</SECTNO> <SUBJECT>The general course and method by which the Board's functions are channeled and determined.</SUBJECT> <SECTNO>200.3</SECTNO> <SUBJECT>Obtaining forms from the Railroad Retirement Board.</SUBJECT> <SECTNO>200.4</SECTNO> <SUBJECT>Availability of information to public.</SUBJECT> <SECTNO>200.5</SECTNO> <SUBJECT>Protection of privacy of records maintained on individuals.</SUBJECT> <SECTNO>200.6</SECTNO> <SUBJECT>Open meetings.</SUBJECT> <SECTNO>200.7</SECTNO> <SUBJECT>Assessment or waiver of interest, penalties, and administrative costs with respect to collection of certain debts.</SUBJECT> <SECTNO>200.8</SECTNO> <SUBJECT>Disclosure of information obtained in the administration of the Railroad Retirement Act and the Railroad Unemployment Insurance Act.</SUBJECT> <SECTNO>200.9</SECTNO> <SUBJECT>Selection of members of Actuarial Advisory Committee.</SUBJECT> <SECTNO>200.10</SECTNO> <SUBJECT>Representatives of applicant or beneficiaries.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f(b)(5) and 45 U.S.C. 362; § 200.4 also issued under 5 U.S.C. 552; § 200.5 also issued under 5 U.S.C. 552a; § 200.6 also issued under 5 U.S.C. 552b; and § 200.7 also issued under 31 U.S.C. 3717.</P> </AUTH> <SECTION> <SECTNO>§ 200.1</SECTNO> <SUBJECT>Designation of central and field organization.</SUBJECT> <P>(a) <E T="03">Introduction.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(4) The headquarters of the Board is in Chicago, Illinois, at 844 North Rush Street. The Board maintains numerous district offices across the country in localities easily accessible to large numbers of railroad workers, in addition to three regional offices located in Atlanta, Georgia; Denver, Colorado; and, Philadelphia, Pennsylvania.</P> <P>(b) <E T="03">Internal organization.</E> (1) Reporting directly to the Board Members is the six member Executive Committee. The Executive Committee is comprised of the General Counsel, who also serves as the Senior Executive Officer, the Director of Administration, the Director of Programs, the Chief Financial Officer, the Chief Information Officer, and the Chief Actuary.</P> <P>(2) The Executive Committee is responsible for the day to day operations of the agency. The Senior Executive Officer is responsible for direction and oversight of the Executive Committee. The General Counsel is responsible for advising the Board Members on major issues, interpreting the Acts and regulations administered by the Board, drafting and analyzing legislation, and planning, directing, and coordinating the work of the Office of General Counsel, the Bureau of Hearings and Appeals, and the Office of Legislative Affairs through their respective directors, and the Office of Secretary to the Board. The Director of Programs is responsible for managing, coordinating, and controlling the program operations of the agency which carry out provisions of the Railroad Retirement and <PRTPAGE P="158"/>Railroad Unemployment Insurance Acts. The Director of Administration is responsible for managing, coordinating, and controlling certain administrative operations of the Board including the Bureau of Supply and Service, the Bureau of Human Resources, the Office of Public Affairs, and the Office of Equal Opportunity. The Chief Financial Officer is responsible for the financial management of the agency, and the Chief Information Officer is responsible for coordinating the agency's information resources management program. The Board's Chief Actuary is responsible for the actuarial program of the Board. The Chief Actuary is a non-voting member of the Executive Committee.</P> <P>(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.</P> <P>(c) <E T="03">Office of Inspector General.</E> 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.</P> <CITA>[52 FR 11010, Apr. 6, 1987, as amended at 67 FR 5723, Feb. 7, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.2</SECTNO> <SUBJECT>The general course and method by which the Board's functions are channeled and determined.</SUBJECT> <P>(a) <E T="03">Retirement and death benefits.</E> (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:</P> <P>(i) Applications for benefits;</P> <P>(ii) Requests for the withdrawal of an application;</P> <P>(iii) Requests for a change in an annuity beginning date;</P> <P>(iv) The termination of an annuity;</P> <P>(v) The modification of the amount of an annuity or lump sum;</P> <P>(vi) Requests for the reinstatement of an annuity which had been terminated or modified;</P> <P>(vii) The existence of an erroneous payment;</P> <P>(viii) The eligibility of an individual for a supplemental annuity or the amount of such supplemental annuity.</P> <P>(ix) Whether representative payments shall serve the interests of an individual by reason of his incapacity to manage his annuity payments; and</P> <P>(x) Who shall be appointed or continued as representative payee on behalf of an annuitant.</P> <P>(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. <E T="03">Provided, however,</E> 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 <PRTPAGE P="159"/>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 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.</P> <P>(b) <E T="03">Unemployment, sickness, and maternity benefits.</E> (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.</P> <P>(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.</P> <P>(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-<PRTPAGE P="160"/>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 omissions, and noting items requiring investigation. The claim is then forwarded to the regional office.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="161"/>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.)</P> <FP>Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act, of which the claimant is a 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.</FP> <P>(c) <E T="03">Current compensation and service records.</E> 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.</P> <P>(d) <E T="03">Collection of contributions.</E> 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.)</P> <P>(e) <E T="03">Employment service.</E> 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.3</SECTNO> <SUBJECT>Obtaining forms from the Railroad Retirement Board.</SUBJECT> <P>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.</P> <CITA>[63 FR 17326, Apr. 9, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.4</SECTNO> <SUBJECT>Availability of information to public.</SUBJECT> <P>(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:</P> <P>(1) All final opinions (including concurring and dissenting opinions), and all orders made in the adjudication of cases, which have precedential effect;</P> <P>(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 <E T="04">Federal Register;</E> and</P> <P>(3) Administrative staff manuals and instructions to staff that affect any member of the public.</P> <P>(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 § 200.8 of this part, or to prevent a clearly unwarranted invasion of personal privacy.</P> <P>(c) There shall be maintained in the Board's library a current index of the materials referred to in paragraph (a) <PRTPAGE P="162"/>of this section which will have been 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.</P> <P>(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 that 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 North Rush Street, Chicago, Illinois 60611-2092:</P> <P>(1) In the Office of Programs/Operations: 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, Field Operating Manual (Parts I and VI), FOM Circulars and Memoranda, the Occupational Disability Rating Schedule, Adjudication Instruction Manual, Regional Operating Manual (Part I), memorandum instructions on adjudication, and circular letters of instruction to railroad officials.</P> <P>(2) In the Office of Programs/Assessment and Training: The Instructions to Employers, and Circular Letters to Employers.</P> <P>(3) In the Office of General Counsel: Legal Opinions.</P> <P>(4) In the Office of the Secretary to the Board: Decisions and rulings of the Board.</P> <P>(5) 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.</P> <P>(e) The copies of manuals and instructions made available for public copying and inspection shall not include:</P> <P>(1) Confidential statements, standards, and instructions which do not affect the public, and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(1) <E T="03">Fee schedule.</E> To the extent that the following are chargeable, they are chargeable according to the following schedule:</P> <P>(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;</P> <P>(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;</P> <P>(iii) The charge for making photocopies of any size document shall be $.10 per copy per page:</P> <P>(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). <PRTPAGE P="163"/>Search time shall not include the time expended in analysis or programming where these operations are required.</P> <P>(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.</P> <P>(2) <E T="03">Categories of requesters.</E> For the purpose of assessing fees, requesters shall be classified into one of the following five groups:</P> <P>(i) <E T="03">Commercial use requesters.</E> 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.</P> <P>(ii) <E T="03">Educational and non-commercial scientific institution requesters.</E> 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.</P> <P>(iii) <E T="03">Requesters who are representatives of the news media.</E> 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 time, these requesters must reasonably describe the record sought.</P> <P>(iv) <E T="03">Requests by subjects of records in Privacy Act Systems of Records.</E> 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 <PRTPAGE P="164"/>fee provisions of the Privacy Act of 1984 which permit assessing fees only for reproduction.</P> <P>(v) <E T="03">All other requesters.</E> 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.</P> <P>(3) <E T="03">Charges for unsuccessful searches.</E> 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.</P> <P>(4) <E T="03">Aggregating requests.</E> 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.</P> <P>(5) <E T="03">Advance payments.</E> (i) The RRB estimates or determines that the allowable charges payment unless:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(6) <E T="03">Charging interest.</E> 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.</P> <P>(7) <E T="03">Collection of fees due.</E> Whenever it is appropriate in the judgment of the Board in order to encourage repayment of fees billed in accordance with these 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.</P> <P>(h) Any person or organization requesting records pursuant to this section shall submit such request in writing to the General Counsel, Railroad Retirement Board, Room 836, 844 North Rush Street, Chicago, Illinois 60611-<PRTPAGE P="165"/>2092. 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. Requests may also be submitted by e-mail, <E T="03">LAWGroupMailbox@rrb.gov.</E> </P> <P>(i) The General Counsel, or any other individual specifically authorized to act on behalf of the General Counsel, shall have the authority to grant or deny a request for information submitted under this section. The General Counsel or such authorized representative shall, within 20 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.</P> <P>(j) In cases where a request for information is denied, in whole or in part, by the General Counsel 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.</P> <P>(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.</P> <P>(2) For purposes of paragraphs (i) and (j) of this section, a request shall be received by the General Counsel of the Board when it arrives at the Board's headquarters. <E T="03">Provided, however,</E> 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 General Counsel until the requester is advised of the estimated cost and agrees to bear it. <E T="03">Provided further,</E> 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 General Counsel on the day it actually reaches his or her office.</P> <P>(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 General Counsel. If the request received is in writing, it shall be immediately referred for action to the Executive Director.</P> <P>(l) The General Counsel shall maintain records of:</P> <P>(1) The total amount of fees collected by this agency pursuant to this section;</P> <P>(2) The number of initial denials of requests for records made pursuant to this section and the reason for each;</P> <P>(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;</P> <P>(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;</P> <P>(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 was determined to be primarily responsible for improperly withholding records, or an explanation of why disciplinary action was not taken;</P> <P>(6) Every rule made by this agency affecting or in implementation of section 552 of title 5 U.S. Code;</P> <P>(7) The fee schedule for copies of records and documents requested pursuant to this regulation; and<PRTPAGE P="166"/> </P> <P>(8) All other information which indicates efforts to administer fully the letter and spirit of section 552 of title 5 U.S. Code.</P> <P>(m) The Board shall, prior to February 1 of each year, prepare and submit a report to the Attorney General of the United States covering each of the categories of records maintained in accordance with the foregoing for the preceding fiscal year.</P> <P>(n) <E T="03">Special procedures for handling requests for business information:</E> </P> <P>(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.</P> <P>(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 General Counsel 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(o) <E T="03">Custom tailored information services; Fees charged.</E> 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.</P> <P>(1) <E T="03">Definition: Custom tailored information.</E> Custom tailored information is information not otherwise required to be disclosed under this part but which can 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 <PRTPAGE P="167"/>the result of custom tailored information services.</P> <P>(2) <E T="03">Providing custom tailored information.</E> 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.</P> <P>(3) <E T="03">Requesting custom tailored information.</E> 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.</P> <P>(4) <E T="03">Fee schedule.</E> Requests for custom tailored information are chargeable according to the following schedule:</P> <P>(i) <E T="03">Manual searching for records.</E> 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.</P> <P>(ii) <E T="03">Photocopying or reproducing records on magnetic tapes or computer diskettes.</E> 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.</P> <P>(iii) <E T="03">Use of electronic data processing equipment to obtain records.</E> 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.</P> <P>(iv) <E T="03">Certification or authentication.</E> Full cost of certification and authentication.</P> <P>(v) <E T="03">Providing other special services.</E> 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.</P> <P>(vi) <E T="03">Special forwarding arrangements.</E> Full cost of special arrangements for forwarding material requested.</P> <P>(vii) <E T="03">Statutory supersession.</E> 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> <P>(p) <E T="03">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.</E> 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.</P> <CITA>[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; 68 FR 61621, Oct. 29, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.5</SECTNO> <SUBJECT>Protection of privacy of records maintained on individuals.</SUBJECT> <P>(a) <E T="03">Purpose and scope.</E> The purpose of this section is to establish specific procedures necessary for compliance with the Privacy Act of 1974 (Pub. L. 93-579). 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.</P> <P>(b) <E T="03">Definitions</E>—(1) <E T="03">Individual.</E> 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.</P> <P>(2) <E T="03">System of records.</E> For the purposes of this section, the term “system of records” pertains to only those records <PRTPAGE P="168"/>that can be retrieved by an individual identifier.</P> <P>(3) <E T="03">Railroad Retirement Board.</E> 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.</P> <P>(4) <E T="03">Board.</E> For purposes of this section the term “Board” refers to the three member governing body of the United States Railroad Retirement Board.</P> <P>(c) <E T="03">Procedure for requesting the existence of personally identifiable records in a record system.</E> 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 <E T="04">Federal Register.</E> 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.</P> <P>(d) <E T="03">Disclosure of requested information to individuals.</E> (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 <E T="04">Federal Register.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> or at such other location convenient to the individual as <PRTPAGE P="169"/>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.</P> <P>(e) <E T="03">Special procedures—medical records.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) <E T="03">General exemptions</E>—(1) <E T="03">Systems of records subject to investigatory material exemption under 5 U.S.C. 552a(j)(2).</E> 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.</P> <P>(2) <E T="03">Scope of exemption.</E> (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 <PRTPAGE P="170"/>activities of the OIG's OI is the Inspector General Act of 1978, 5 U.S.C. App.</P> <P>(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.</P> <P>(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.)</P> <P>(3) <E T="03">Reasons for exemptions.</E> The system of records described in this section is exempt for one or more of the following reasons:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="171"/>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.</P> <P>(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.</P> <P>(vii) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a <E T="04">Federal Register</E> 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.</P> <P>(viii) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish in the <E T="04">Federal Register</E> 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.</P> <P>(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.</P> <P>(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 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.</P> <P>(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 <PRTPAGE P="172"/>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.</P> <P>(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.</P> <P>(g) <E T="03">Specific exemptions</E>—(1) <E T="03">Systems of records subject to investigatory material exemption under 5 U.S.C. 552a(k</E>)(<E T="03">2</E>). 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.</P> <P>(2) <E T="03">Privacy Act provisions from which exempt.</E> 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.</P> <P>(3) <E T="03">Reasons for exemptions.</E> The system of records described in this section is exempt for one or more of the following reasons:</P> <P>(i) To prevent the subject of the investigations from frustrating the investigatory process.</P> <P>(ii) To protect investigatory material compiled for law enforcement purposes.</P> <P>(iii) To fulfill commitments made to protect the confidentiality of sources and to maintain access to necessary sources of information.</P> <P>(iv) To prevent interference with law enforcement proceedings.</P> <P>(h) <E T="03">Request for amendment of a record.</E> (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 <E T="04">Federal Register.</E> 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 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.</P> <P>(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.</P> <P>(3) The system manager responsible for the system of records which contains the challenged record shall acknowledge receipt of the request in <PRTPAGE P="173"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(i) <E T="03">Appeal of initial adverse determination on amendment.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(j) <E T="03">Disclosure of record to person other than the individual to whom it pertains.</E> (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 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:</P> <P>(i) To officers or employees of the Railroad Retirement Board who, in the performance of their official duties, have a need for the record;</P> <P>(ii) Required under section 552 of title 5 of the U.S. Code;</P> <P>(iii) For a routine use of such record as published in the annual notice in the <E T="04">Federal Register;</E> </P> <P>(iv) To the Bureau of the Census for uses pursuant to the provisions of title 13 of the United States Code;<PRTPAGE P="174"/> </P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(xi) Pursuant to the order of a court of competent jurisdiction.</P> <P>(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:</P> <P>(i) Date of disclosure;</P> <P>(ii) Specific subject matter of disclosure;</P> <P>(iii) Purpose of disclosure; and</P> <P>(iv) Name and address of the person or agency to whom the information has been released.</P> <FP>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.</FP> <P>(k) <E T="03">Annual notice of systems of records.</E> The Railroad Retirement Board shall publish in the <E T="04">Federal Register</E> 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:</P> <P>(1) The name and location of the system;</P> <P>(2) The categories of individuals on whom records are maintained in the system;</P> <P>(3) The routine uses of the system;</P> <P>(4) The methods of storage, disposal, retention, access controls and retrievability of the system;</P> <P>(5) The title and business address of the individual who is responsible for the system;</P> <P>(6) The procedure whereby an individual can be notified at his request whether or not the system contains a record pertaining to him;</P> <P>(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;</P> <P>(8) How the individual can contest the contents of such a record; and</P> <P>(9) The categories of sources of records in the system.</P> <P>(l) <E T="03">Collection of information and maintenance of records.</E> With respect to each system of records indexed by individual identifer which is maintained by the <PRTPAGE P="175"/>Railroad Retirement Board, the Railroad Retirement Board shall:</P> <P>(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;</P> <P>(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;</P> <P>(3) Inform each individual who is asked to supply information:</P> <P>(i) The authority under which the solicitation of such information is carried out;</P> <P>(ii) Whether disclosure of the requested information is mandatory or voluntary and any penalties for failure to furnish such information;</P> <P>(iii) The principal purposes for which the information will be used;</P> <P>(iv) The routine uses and transfers of such information; and</P> <P>(v) The possible effects on such individual if he fails to provide the requested information.</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(8) At least thirty days prior to publication of information under paragraph (i) of this section, publish in the <E T="04">Federal Register</E> 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.</P> <P>(m) <E T="03">Fees.</E> 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.</P> <P>(n) <E T="03">Government contractors.</E> 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 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)).</P> <P>(o) <E T="03">Mailing lists.</E> The Railroad Retirement Board shall neither sell nor rent <PRTPAGE P="176"/>information containing any individual's name or address, unless authorized by statute.</P> <P>(p) <E T="03">Disclosure of social security account numbers.</E> 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.6</SECTNO> <SUBJECT>Open meetings.</SUBJECT> <P>(a) <E T="03">Definitions</E>—(1) <E T="03">Meeting.</E> 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:</P> <P>(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</P> <P>(ii) Consideration by the Board members of agency business circulated to them individually in writing for disposition by notation.</P> <P>(2) <E T="03">Public announcement.</E> 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.</P> <P>(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. <E T="03">Provided, however,</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 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 <PRTPAGE P="177"/>meeting, or portion thereof, or the disclosure of the information is likely to:</P> <P>(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;</P> <P>(ii) Relate solely to the internal personnel rules and practices of the Board;</P> <P>(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), <E T="03">Provided,</E> 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;</P> <P>(iv) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;</P> <P>(v) Involve accusing any person of a crime, or formally censuring any person;</P> <P>(vi) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;</P> <P>(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</P> <P>(A) Interfere with law enforcement proceedings,</P> <P>(B) Deprive a person of a right to a fair trial or an impartial adjudication,</P> <P>(C) Constitute an unwarranted invasion of personal privacy,</P> <P>(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,</P> <P>(E) Disclose investigative techniques and procedures, or</P> <P>(F) Endanger the life or physical safety of law enforcement personnel;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="178"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(4) Immediately following each public announcement required by this subsection, the Board shall submit for publication in the <E T="04">Federal Register</E> 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.</P> <P>(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.</P> <P>(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; <E T="03">Provided, however,</E> 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 <PRTPAGE P="179"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[42 FR 15312, Mar. 21, 1977, as amended at 42 FR 22865, Nov. 11, 1977. Redesignated at 52 FR 11010, Apr. 6, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.7</SECTNO> <SUBJECT>Assessment or waiver of interest, penalties, and administrative costs with respect to collection of certain debts.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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 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.</P> <P>(b)(1) Simple interest shall be assessed once a month on the unpaid principal of a debt.</P> <P>(2) Interest shall accrue from the date on which notice of the debt and <PRTPAGE P="180"/>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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> and the Treasury Financial Manual Bulletins annually or quarterly, in accordance with 31 U.S.C. 3717.</P> <P>(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.</P> <P>(c)(1) A penalty charge of 6 percent per year shall be assessed on any debt that is delinquent for more than 90 days.</P> <P>(2) The penalty charge shall accrue from the date on which the debt became delinquent.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(2) Administrative costs include costs incurred in obtaining a credit report and in using a private debt collector.</P> <P>(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.</P> <P>(f) <E T="03">Exemptions.</E> 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)).</P> <P>(g)(1) The Board shall waive the collection of interest under the following circumstances:</P> <P>(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,</P> <P>(ii) When, in any case where a decision with respect to waiver of recovery of an overpayment must be made:</P> <P>(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</P> <P>(B) The debt is paid within thirty days after 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 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 <PRTPAGE P="181"/>his or her request for waiver of recovery has been wholly or partially denied;</P> <P>(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;</P> <P>(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</P> <P>(v) In regard to any debt the recovery of which is waived.</P> <P>(2) The Board may waive the collection of interest, penalties and administrative costs in whole or in part in the following circumstances:</P> <P>(i) Where, in the judgment of the Board, collecting interest, penalty and administrative costs would be against equity and good conscience; or</P> <P>(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.</P> <P>(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:</P> <P>(i) The fault of the overpaid individual in causing the underlying overpayment; and</P> <P>(ii) Whether the overpaid individual in reliance on the incorrect payment relinquished a valuable right or changed his or her position for the worse.</P> <P>(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:</P> <P>(i) Whether the collection of interest, penalties and administrative costs would result in the debt never being repaid; and</P> <P>(ii) Whether the collection of interest, penalties and administrative costs would cause undue hardship.</P> <P>(i) The Board shall waive the collection of interest, penalties, and administrative costs in any case where the debt to be recovered is being recovered by full or partial withholding of a current annuity payable under the Railroad Retirement Act and the debt was not incurred through fraud.</P> <CITA>[52 FR 41559, Oct. 29, 1987, as amended at 59 FR 15049, Mar. 31, 1994; 67 FR 5723, Feb. 7, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.8</SECTNO> <SUBJECT>Disclosure of information obtained in the administration of the Railroad Retirement Act and the Railroad Unemployment Insurance Act.</SUBJECT> <P>(a) <E T="03">Purpose and scope.</E> 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.</P> <P>(b) <E T="03">Definitions—Agency.</E> The term <E T="03">agency</E> refers to the Railroad Retirement Board, an independent agency in the executive branch of the United States Government.</P> <P> <E T="03">Applicant.</E> The term <E T="03">applicant</E> 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.</P> <P> <E T="03">Beneficiary.</E> The term <E T="03">beneficiary</E> refers to an individual to whom a benefit is payable under either the Railroad Retirement Act or the Railroad Unemployment Insurance Act.</P> <P> <E T="03">Board.</E> The term <E T="03">Board</E> refers to the three-member governing body of the Railroad Retirement Board.</P> <P> <E T="03">Document.</E> The term <E T="03">document</E> 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.</P> <P> <E T="03">Information.</E> The term <E T="03">information</E> means any non-medical document or data which is obtained by the agency in the administration of the Railroad Retirement Act and/or the Railroad <PRTPAGE P="182"/>Unemployment Insurance Act. <E T="03">Information</E> 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 § 200.5(e) of this part.</P> <P> <E T="03">Testify and testimony.</E> The terms <E T="03">testify</E> and <E T="03">testimony</E> 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.</P> <P>(c) <E T="03">General rule.</E> 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 § 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.</P> <P>(d) <E T="03">Subpoenas—statement of policy and general rule.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="183"/>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.</P> <P>(e) <E T="03">Subpoena duces tecum.</E> (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.</P> <P>(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.</P> <P>(f) <E T="03">Requests for voluntary testimony.</E> 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.</P> <P>(g) <E T="03">Authorized release of information.</E> 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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 1974 and the Railroad Unemployment Insurance Act.<PRTPAGE P="184"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(10) To any governmental welfare agency, information about the receipt of benefits and eligibility for benefits.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[54 FR 43055, Oct. 20, 1989, as amended at 56 FR 50247, Oct. 4, 1991; 63 FR 2141, Jan. 14, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.9</SECTNO> <SUBJECT>Selection of members of Actuarial Advisory Committee.</SUBJECT> <P>(a) <E T="03">Introduction.</E> 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.</P> <P>(b) <E T="03">Carrier actuary.</E> 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.</P> <P>(c) <E T="03">Railway labor actuary.</E> The other member of the Actuarial Advisory <PRTPAGE P="185"/>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.</P> <CITA>[54 FR 43056, Oct. 20, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 200.10</SECTNO> <SUBJECT>Representatives of applicant or beneficiaries.</SUBJECT> <P>(a) <E T="03">Power of attorney.</E> 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:</P> <P>(1) A Member of Congress;</P> <P>(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</P> <P>(3) An attorney who, in the absence of information to the contrary, declares that he or she is representing the applicant or beneficiary.</P> <P>(b) <E T="03">Payment of claim.</E> 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.</P> <CITA>[54 FR 43057, Oct. 20, 1989]</CITA> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="186"/> <HD SOURCE="HED">SUBCHAPTER B—REGULATIONS UNDER THE RAILROAD RETIREMENT ACT</HD> <PART> <EAR>Pt. 201</EAR> <HD SOURCE="HED">PART 201—DEFINITIONS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228a, 228j.</P> </AUTH> <SECTION> <SECTNO>§ 201.1</SECTNO> <SUBJECT>Words and phrases.</SUBJECT> <P>For the purposes of the regulations in this chapter, except where the language or context indicates otherwise:</P> <P>(a) <E T="03">Act.</E> 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).</P> <P>(b) <E T="03">Employer.</E> The term “employer” means an employer as defined in the act and part 202 of this chapter.</P> <P>(c) <E T="03">Employee.</E> The term “employee” means an employee as defined in the act and part 203 of this chapter.</P> <P>(d) <E T="03">Service.</E> The term “service” means service as defined in the act and part 220 of this chapter.</P> <P>(e) <E T="03">Compensation.</E> The term “compensation” means compensation as defined in the act and part 222 of this chapter.</P> <P>(f) <E T="03">Board.</E> The term “Board” means the Railroad Retirement Board.</P> <P>(g) <E T="03">Company.</E> The term “company” means a partnership, association, joint stock company, corporation, or institution.</P> <P>(h) <E T="03">United States.</E> The term “United States” where used in a geographical sense means the States and the District of Columbia.</P> <P>(i) <E T="03">Carrier.</E> 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).</P> <P>(j) <E T="03">Person.</E> The term “person” includes an individual, trust, estate, partnership, association, joint stock company, company, corporation, and institution.</P> <P>(k) <E T="03">General Committee.</E> 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.</P> <P>(l) <E T="03">Local lodges and divisions; local lodge or division.</E> 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.</P> <CITA>[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]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 202</EAR> <HD SOURCE="HED">PART 202—EMPLOYERS UNDER THE ACT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>202.1</SECTNO> <SUBJECT>Statutory provisions.</SUBJECT> <SECTNO>202.2</SECTNO> <SUBJECT>Company or person principally engaged in carrier business.</SUBJECT> <SECTNO>202.3</SECTNO> <SUBJECT>Company or person principally engaged in non-carrier business.</SUBJECT> <SECTNO>202.4</SECTNO> <SUBJECT>Control.</SUBJECT> <SECTNO>202.5</SECTNO> <SUBJECT>Company or person under common control.</SUBJECT> <SECTNO>202.6</SECTNO> <SUBJECT>Casual service and the casual operation of equipment or facilities.</SUBJECT> <SECTNO>202.7</SECTNO> <SUBJECT>Service or operation in connection with railroad transportation.</SUBJECT> <SECTNO>202.8</SECTNO> <SUBJECT>Controlled company or person principally engaged in service or operation in connection with railroad transportation.<PRTPAGE P="187"/> </SUBJECT> <SECTNO>202.9</SECTNO> <SUBJECT>Controlled company or person not principally engaged in service or operation in connection with railroad transportation.</SUBJECT> <SECTNO>202.10</SECTNO> <SUBJECT>Commencement of employer status of receiver or trustee, etc.</SUBJECT> <SECTNO>202.11</SECTNO> <SUBJECT>Termination of employer status.</SUBJECT> <SECTNO>202.12</SECTNO> <SUBJECT>Evidence of termination of employer status.</SUBJECT> <SECTNO>202.13</SECTNO> <SUBJECT>Electric railways.</SUBJECT> <SECTNO>202.14</SECTNO> <SUBJECT>Service incidental to railroad transportation.</SUBJECT> <SECTNO>202.15</SECTNO> <SUBJECT>Railway labor organizations.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 228a, 228j, unless otherwise noted.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>4 FR 1478, Apr. 7, 1939, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 202.1</SECTNO> <SUBJECT>Statutory provisions.</SUBJECT> <EXTRACT> <P>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: <E T="03">Provided, however,</E> 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))</P> <P>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))</P> </EXTRACT> <CITA>[4 FR 1478, Apr. 7, 1939, as amended by Board Order 41-526, 7 FR 96, Jan. 6, 1942]</CITA> </SECTION> <SECTION> <SECTNO>§ 202.2</SECTNO> <SUBJECT>Company or person principally engaged in carrier business.</SUBJECT> <P>Any company or person principally engaged in carrier business is an employer.</P> </SECTION> <SECTION> <SECTNO>§ 202.3</SECTNO> <SUBJECT>Company or person principally engaged in non-carrier business.</SUBJECT> <P>(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:</P> <P>(1) The primary purpose of the company or person on and since the date it was established;</P> <P>(2) The functional dominance or subservience of its carrier business in relation to its non-carrier business;</P> <P>(3) The amount of its carrier business and the ratio of such business to its entire business;</P> <P>(4) Whether its carrier business is a separate and distinct enterprise.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="188"/> <SECTNO>§ 202.4</SECTNO> <SUBJECT>Control.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 202.5</SECTNO> <SUBJECT>Company or person under common control.</SUBJECT> <P>A company or person is under common control with a carrier, whenever the control (as the term is used in § 202.4) of such company or person is in the same person, persons, or company as that by which such carrier is controlled.</P> </SECTION> <SECTION> <SECTNO>§ 202.6</SECTNO> <SUBJECT>Casual service and the casual operation of equipment or facilities.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 202.7</SECTNO> <SUBJECT>Service or operation in connection with railroad transportation.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 202.8</SECTNO> <SUBJECT>Controlled company or person principally engaged in service or operation in connection with railroad transportation.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 202.9</SECTNO> <SUBJECT>Controlled company or person not principally engaged in service or operation in connection with railroad transportation.</SUBJECT> <P>(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:</P> <P>(1) The primary purpose of the company or person on and since the date it was established;</P> <P>(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;</P> <P>(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;</P> <P>(4) Whether such service or operation is a separate and distinct enterprise;<PRTPAGE P="189"/> </P> <P>(5) Whether such service or operation is more than casual, as that term is defined in § 202.6.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 202.10</SECTNO> <SUBJECT>Commencement of employer status of receiver or trustee, etc.</SUBJECT> <P>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:</P> <P>(a) The date that it takes possession of such property; or</P> <P>(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</P> <P>(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;</P> <FP> <E T="03">Provided, however,</E> 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.</FP> </SECTION> <SECTION> <SECTNO>§ 202.11</SECTNO> <SUBJECT>Termination of employer status.</SUBJECT> <P>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.</P> <CITA>[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]</CITA> </SECTION> <SECTION> <SECTNO>§ 202.12</SECTNO> <SUBJECT>Evidence of termination of employer status.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 § 250.1(b) of this chapter it is the <PRTPAGE P="190"/>duty of each employer promptly to notify the Board of any change in operations affecting such company's status as an employer.</P> <CITA>[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]</CITA> </SECTION> <SECTION> <SECTNO>§ 202.13</SECTNO> <SUBJECT>Electric railways.</SUBJECT> <P>(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:</P> <P>(1) Whether the electric railway is more than a street, suburban or interurban electric railway; or</P> <P>(2) Whether it is operating as a part of a general steam-railroad system of transportation; or</P> <P>(3) Whether it is part of the national transportation system.</P> <P>(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.</P> <SECAUTH>(45 U.S.C. 231f(b)(5))</SECAUTH> <CITA>[4 FR 1478, Apr. 7, 1939, as amended at 48 FR 51448, Nov. 9, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 202.14</SECTNO> <SUBJECT>Service incidental to railroad transportation.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 202.15</SECTNO> <SUBJECT>Railway labor organizations.</SUBJECT> <P>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.</P> <P>(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 <PRTPAGE P="191"/>organization will have established such a right of participation if:</P> <P>(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</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) The extent to which it is, and has been recognized as, representative of crafts or classes of employees in the railroad industry.</P> <P>(2) The extent to which its purposes and business are and have been to promote the interests of employees in the railroad industry.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> <PART> <EAR>Pt. 203</EAR> <HD SOURCE="HED">PART 203—EMPLOYEES UNDER THE ACT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>203.1</SECTNO> <SUBJECT>Statutory provisions.</SUBJECT> <SECTNO>203.2</SECTNO> <SUBJECT>General definition of employee.</SUBJECT> <SECTNO>203.3</SECTNO> <SUBJECT>When an individual is performing service for an employer.</SUBJECT> <SECTNO>203.4</SECTNO> <SUBJECT>When service is compensated.</SUBJECT> <SECTNO>203.5</SECTNO> <SUBJECT>Service outside the United States.</SUBJECT> <SECTNO>203.6</SECTNO> <SUBJECT>Age, citizenship, and other factors.</SUBJECT> <SECTNO>203.7</SECTNO> <SUBJECT>Local lodge employee.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 1, 10, 50 Stat. 307, as amended, 314 as amended; 45 U.S.C. 228a, 228j, unless otherwise noted.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>12 FR 1133, Feb. 19, 1947, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 203.1</SECTNO> <SUBJECT>Statutory provisions.</SUBJECT> <P>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.</P> <P>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 <PRTPAGE P="192"/>not beyond the mine tipple, or the loading of coal at the tipple.</P> <P>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): <E T="03">Provided, however,</E> 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: <E T="03">Provided further,</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 203.2</SECTNO> <SUBJECT>General definition of employee.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 203.3</SECTNO> <SUBJECT>When an individual is performing service for an employer.</SUBJECT> <P>(a) The legal relationship of employer and employee is defined by the act. Thus, an individual is performing service for an employer if:</P> <P>(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</P> <P>(2) In rendering professional or technical services he is integrated into the staff of the employer; or</P> <P>(3) He is rendering personal services on the property used in the operations of the employer and the services are integrated into those operations.<PRTPAGE P="193"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 203.4</SECTNO> <SUBJECT>When service is compensated.</SUBJECT> <P>Service shall be “compensated” if it is performed for compensation, as that term is defined in part 222 of this chapter: <E T="03">Provided, however,</E> 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.)</P> <SECAUTH>(Sec. 3, 50 Stat. 310, as amended; 45 U.S.C. 228c)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 203.5</SECTNO> <SUBJECT>Service outside the United States.</SUBJECT> <P>(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.</P> <P>(b) An individual shall not be an employee by reason of rendition of service to a local lodge or division, unless:</P> <P>(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</P> <P>(2) The headquarters of such local lodge or division is located in the United States.</P> <P>(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:</P> <P>(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</P> <P>(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</P> <P>(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; <E T="03">Provided, however,</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 203.6</SECTNO> <SUBJECT>Age, citizenship, and other factors.</SUBJECT> <P>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.</P> <CITA>[Board Order 55-89, 20 FR 3706, May 27, 1955]</CITA> </SECTION> <SECTION> <SECTNO>§ 203.7</SECTNO> <SUBJECT>Local lodge employee.</SUBJECT> <P>An individual who, prior to January 1, 1937, shall have rendered service to a <PRTPAGE P="194"/>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.)</P> </SECTION> </PART> <PART> <EAR>Pt. 204</EAR> <HD SOURCE="HED">PART 204—EMPLOYMENT RELATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>204.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>204.2</SECTNO> <SUBJECT>Employment relation—determination by the Board.</SUBJECT> <SECTNO>204.3</SECTNO> <SUBJECT>Employment relation—prior service.</SUBJECT> <SECTNO>204.4</SECTNO> <SUBJECT>Conditions which preclude an employment relation.</SUBJECT> <SECTNO>204.5</SECTNO> <SUBJECT>Employment relation—deemed service.</SUBJECT> <SECTNO>204.6</SECTNO> <SUBJECT>Employment relation—pay for time lost.</SUBJECT> <SECTNO>204.7</SECTNO> <SUBJECT>Employment relation—service to a local lodge or division of a railway labor organization.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 5224, Feb. 2, 1989, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 204.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>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 § 210.3 of this chapter, and to receive credit for pay for time lost as provided for in § 211.3 of this chapter. This part defines employment relation for these purposes. See §§ 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.</P> </SECTION> <SECTION> <SECTNO>§ 204.2</SECTNO> <SUBJECT>Employment relation—determination by the Board.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 204.3</SECTNO> <SUBJECT>Employment relation—prior service.</SUBJECT> <P>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:</P> <P>(a) He or she was in the service of an employer on that date; or</P> <P>(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</P> <P>(c) He or she was in the service of an employer after that date and before January 1946, in each of six calendar months, whether or not consecutive; or</P> <P>(d) Before that date he or she did not retire and was not retired or discharged from the service of the last <PRTPAGE P="195"/>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</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 204.4</SECTNO> <SUBJECT>Conditions which preclude an employment relation.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 204.5</SECTNO> <SUBJECT>Employment relation—deemed service.</SUBJECT> <P>For the purpose of crediting deemed service months as provided in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 204.6</SECTNO> <SUBJECT>Employment relation—pay for time lost.</SUBJECT> <P>For the purpose of crediting pay for time lost as provided in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 204.7</SECTNO> <SUBJECT>Employment relation—service to a local lodge or division of a railway labor organization.</SUBJECT> <P>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 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 § 204.3 of this part.</P> </SECTION> </PART> <PART> <PRTPAGE P="196"/> <EAR>Pt. 205</EAR> <HD SOURCE="HED">PART 205—EMPLOYEE REPRESENTATIVE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>205.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>205.2</SECTNO> <SUBJECT>Definition of employee representative.</SUBJECT> <SECTNO>205.3</SECTNO> <SUBJECT>Factors considered in determining employee representative status.</SUBJECT> <SECTNO>205.4</SECTNO> <SUBJECT>Claiming status as an employee representative.</SUBJECT> <SECTNO>205.5</SECTNO> <SUBJECT>Reports of an employee representative.</SUBJECT> <SECTNO>205.6</SECTNO> <SUBJECT>Service of an employee representative.</SUBJECT> <SECTNO>205.7</SECTNO> <SUBJECT>Termination of employee representative status.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231, 45 U.S.C. 231f, 45 U.S.C. 231h.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 39255, Oct. 6, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 205.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 205.2</SECTNO> <SUBJECT>Definition of employee representative.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Example:</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 205.3</SECTNO> <SUBJECT>Factors considered in determining employee representative status.</SUBJECT> <P>The following factors, among others, are considered by the Board in determining an individual's status as an employee representative:</P> <P>(a) The name of the last railroad or other employer under the Act by which the individual was employed, and the period of employment;</P> <P>(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;</P> <P>(c) The date on which the organization was founded;</P> <P>(d) The title of the position held by the individual within the organization, and the duties of said position;</P> <P>(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;</P> <P>(f) The purpose or business of the organization as reflected by its constitution and by-laws;</P> <P>(g) The extent to which the organization is, and has been recognized as, representative of crafts or classes of employees in the railroad industry;</P> <P>(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:</P> <P>(1) The specific employee group(s) represented; and<PRTPAGE P="197"/> </P> <P>(2) The proportion of members that are employed by railroad employers in relation to those members that are employed by non-railroad employers;</P> <P>(i) Whether the organization has been certified by the National Mediation Board as a representative of any class of employees of any company;</P> <P>(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;</P> <P>(k) Whether the organization participates or is authorized to participate in the selection of labor members of the National Railroad Adjustment Board; and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 205.4</SECTNO> <SUBJECT>Claiming status as an employee representative.</SUBJECT> <P>An individual who claims status as an employee representative shall file a report in accordance with § 209.10 of this chapter.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0014)</APPRO> </SECTION> <SECTION> <SECTNO>§ 205.5</SECTNO> <SUBJECT>Reports of an employee representative.</SUBJECT> <P>An annual report of creditable compensation shall be made by an employee representative in accordance with § 209.10 of this chapter.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0014)</APPRO> </SECTION> <SECTION> <SECTNO>§ 205.6</SECTNO> <SUBJECT>Service of an employee representative.</SUBJECT> <P>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.)</P> </SECTION> <SECTION> <SECTNO>§ 205.7</SECTNO> <SUBJECT>Termination of employee representative status.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 206</EAR> <HD SOURCE="HED">PART 206—ACCOUNT BENEFITS RATIO</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>206.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>206.2</SECTNO> <SUBJECT>Computations.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f(b)(5); 45 U.S.C. 231u(a).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>68 FR 51153, Aug. 26, 2003, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 206.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Except as otherwise expressly noted, as used in this part—</P> <P> <E T="03">Account benefits ratio</E> means the amount determined by the Railroad Retirement Board by dividing the fair market value of the assets in the Railroad Retirement Account and the National Railroad Retirement Investment Trust (and for years prior to 2002, the Social Security Equivalent Benefit Account) as of the close of each fiscal year by the total benefits and administrative expenses paid from those accounts during the fiscal year.</P> <P> <E T="03">Administrative expenses paid</E> means the amount of the cash transfers from the Railroad Retirement Account to the agency's single administrative fund. Also included in this term is the amount of the cash transfers from the Railroad Retirement Account to the Limitation on the Office of Inspector General and the administrative expenses paid by the National Railroad Retirement Investment Trust.</P> <P> <E T="03">Assets</E> means the market value of cash and investments in the Railroad Retirement Account and the National Railroad Retirement Investment Trust (and for years before 2002, the Social Security Equivalent Benefit Account).</P> <P> <E T="03">Average account benefits ratio</E> means for any calendar year, the average of the account benefits ratio for the 10 most recent fiscal years ending before <PRTPAGE P="198"/>such calendar year. If the amount computed is not a multiple of 0.1, such amount shall be increased to the next highest 0.1.</P> <P> <E T="03">Total benefits paid</E> means the total amount of benefits paid from the Railroad Retirement Account and the National Railroad Retirement Investment Trust in a fiscal year minus any benefit overpayments actually recovered during that fiscal year.</P> </SECTION> <SECTION> <SECTNO>§ 206.2</SECTNO> <SUBJECT>Computation.</SUBJECT> <P>(a) On or before November 1, 2003, the Railroad Retirement Board shall:</P> <P>(1) Compute the account benefits ratios for each of the most recent 10 preceding fiscal years; and</P> <P>(2) Certify the account benefits ratio for each such fiscal year to the Secretary of the Treasury.</P> <P>(b) On or before November 1 of each year after 2003, the Railroad Retirement Board shall:</P> <P>(1) Compute the account benefits ratio for the fiscal year ending in such year; and</P> <P>(2) Certify the account benefits ratio for such fiscal year to the Secretary of the Treasury.</P> <P>(c) No later than May 1 of each year, beginning 2003, the Board shall compute its projection of the account benefits ratio and the average account benefits ratios for each of the next succeeding 5 fiscal years.</P> </SECTION> </PART> <PART> <EAR>Pt. 209</EAR> <HD SOURCE="HED">PART 209—RAILROAD EMPLOYERS' REPORTS AND RESPONSIBILITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>209.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>209.2</SECTNO> <SUBJECT>Duty to furnish information and records.</SUBJECT> <SECTNO>209.3</SECTNO> <SUBJECT>Social security number required.</SUBJECT> <SECTNO>209.4</SECTNO> <SUBJECT>Method of filing.</SUBJECT> <SECTNO>209.5</SECTNO> <SUBJECT>Information regarding change in status.</SUBJECT> <SECTNO>209.6</SECTNO> <SUBJECT>Employers' notice of death of employees.</SUBJECT> <SECTNO>209.7</SECTNO> <SUBJECT>Employers' supplemental reports of service.</SUBJECT> <SECTNO>209.8</SECTNO> <SUBJECT>Employers' annual reports of creditable service and compensation.</SUBJECT> <SECTNO>209.9</SECTNO> <SUBJECT>Employers' adjustment reports.</SUBJECT> <SECTNO>209.10</SECTNO> <SUBJECT>Terminated employers' reports.</SUBJECT> <SECTNO>209.11</SECTNO> <SUBJECT>Employee representatives' reports.</SUBJECT> <SECTNO>209.12</SECTNO> <SUBJECT>Certificates of service months and compensation.</SUBJECT> <SECTNO>209.13</SECTNO> <SUBJECT>Employers' gross earnings reports.</SUBJECT> <SECTNO>209.14</SECTNO> <SUBJECT>Report of separation allowances subject to tier II taxation.</SUBJECT> <SECTNO>209.15</SECTNO> <SUBJECT>Compensation reportable when paid.</SUBJECT> <SECTNO>209.16</SECTNO> <SUBJECT>Disposal of payroll records.</SUBJECT> <SECTNO>209.17</SECTNO> <SUBJECT>Use of payroll records as returns of compensation.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>49 FR 46729, Nov. 28, 1984, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 209.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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 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.</P> </SECTION> <SECTION> <SECTNO>§ 209.2</SECTNO> <SUBJECT>Duty to furnish information and records.</SUBJECT> <P>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:</P> <P>(a) The employer status of any individual, person or company,</P> <P>(b) The employee or pension status of any individual,</P> <P>(c) The amount and creditability of service and compensation, or</P> <P>(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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0089)</APPRO> <CITA>[49 FR 46729, Nov. 2, 1984, as amended at 52 FR 11016, Apr. 6, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="199"/> <SECTNO>§ 209.3</SECTNO> <SUBJECT>Social security number required.</SUBJECT> <P>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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0008)</APPRO> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.4</SECTNO> <SUBJECT>Method of filing.</SUBJECT> <P>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.</P> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.5</SECTNO> <SUBJECT>Information regarding change in status.</SUBJECT> <P>It is the duty of each employer to promptly notify the Board of:</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <CITA>[49 FR 46729, Nov. 28, 1984. Redesignated at 63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.6</SECTNO> <SUBJECT>Employers' notice of death of employees.</SUBJECT> <P>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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0005)</APPRO> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.7</SECTNO> <SUBJECT>Employers' supplemental reports of service.</SUBJECT> <P>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 provisions of the Railroad Retirement Act.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0005)</APPRO> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.8</SECTNO> <SUBJECT>Employers' annual reports of creditable service and compensation.</SUBJECT> <P>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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0008)</APPRO> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.9</SECTNO> <SUBJECT>Employers' adjustment reports.</SUBJECT> <P>(a) The Board may request employers to submit adjustments to correct employee accounts when:</P> <P>(1) Errors are detected in processing employers' annual report;<PRTPAGE P="200"/> </P> <P>(2) An employee shows that the amount of service or compensation reported by the employer to the employee's account was not correct; or</P> <P>(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.</P> <P>(b) Employers may submit adjustment reports to:</P> <P>(1) Correct service and compensation previously reported; and</P> <P>(2) Report service and compensation that was omittted from a previous report.</P> <P>(c) Employers submitting adjustment reports covering pay for time lost as an employee shall report this compensation as provided for in § 211.3 of this chapter. Adjustment reports may be submitted to the Board each month.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0008)</APPRO> <CITA>[49 FR 46729, Nov. 28, 1984. Redesignated and amended at 63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.10</SECTNO> <SUBJECT>Terminated employers' reports.</SUBJECT> <P>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 § 209.8(a) of this part and shall be marked Final Compensation Report.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0008)</APPRO> <CITA>[49 FR 46729, Nov. 28, 1984. Redesignated and amended at 63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.11</SECTNO> <SUBJECT>Employee representatives' reports.</SUBJECT> <P>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 § 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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0014)</APPRO> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.12</SECTNO> <SUBJECT>Certificates of service months and compensation.</SUBJECT> <P>(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.</P> <P>(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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0194)</APPRO> <CITA>[63 FR 32613, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.13</SECTNO> <SUBJECT>Employers' gross earnings reports.</SUBJECT> <P>(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:</P> <P>(1) Tax and benefit amounts involved in the Financial Interchange with the Social Security Administration and the Health Care Financing Administration; and</P> <P>(2) Estimated tax income accruing to the railroad retirement system in future periods.</P> <P>(b) Employers shall submit reports annually for employees in the gross earnings sample. Such reports shall include the employee's gross annual <PRTPAGE P="201"/>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 § 209.4 of this part.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0132)</APPRO> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.14</SECTNO> <SUBJECT>Report of separation allowances subject to tier II taxation.</SUBJECT> <P>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 § 209.4 of this part.</P> <APPRO>(Approved by the Office of Management and Budget under control number 3220-0173)</APPRO> <CITA>[63 FR 32614, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.15</SECTNO> <SUBJECT>Compensation reportable when paid.</SUBJECT> <P>(a) <E T="03">General.</E> 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 § 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 § 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.</P> <P>(b) <E T="03">Pay for time lost.</E> Compensation which is pay for time lost, as provided in § 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 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 § 209.9 of this part, report the compensation with respect to the year in which the time and compensation were lost.</P> <P>(c) <E T="03">Separation allowance or severance pay.</E> A separation allowance or severance payment shall be reported in accordance with § 209.14 of this part.</P> <P>(d) <E T="03">Miscellaneous pay.</E> Miscellaneous pay, as defined in § 211.11 of this chapter, shall be reported in the year paid and reported on the annual report of compensation as provided for in § 209.8 of this part.</P> <P>(e) <E T="03">Vacation pay.</E> 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 § 209.9 of this part as paid in the year of resignation or discharge.</P> <CITA>[58 FR 45250, Aug. 27, 1993, as amended at 63 FR 32614, June 15, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.16</SECTNO> <SUBJECT>Disposal of payroll records.</SUBJECT> <P>Employers may dispose of payroll records for periods subsequent to 1936, <E T="03">provided that</E> the payroll records are more than five years old and that there is no dispute pending pertaining to the <PRTPAGE P="202"/>compensation reported for the period of those records.</P> <CITA>[61 FR 31395, June 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 209.17</SECTNO> <SUBJECT>Use of payroll records as returns of compensation.</SUBJECT> <P>Payroll records of employers which have permanently ceased operations may be accepted in lieu of prescribed reports <E T="03">provided that</E> there is no official of the employer available to prepare and certify to the accuracy of such reports and, <E T="03">provided further that</E> any employer and employee tax liability incurred under the Railroad Retirement Tax Act has been discharged.</P> <CITA>[61 FR 31395, June 20, 1996]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 210</EAR> <HD SOURCE="HED">PART 210—CREDITABLE RAILROAD SERVICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>210.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>210.2</SECTNO> <SUBJECT>Definition of service.</SUBJECT> <SECTNO>210.3</SECTNO> <SUBJECT>Month of service.</SUBJECT> <SECTNO>210.4</SECTNO> <SUBJECT>Year of service.</SUBJECT> <SECTNO>210.5</SECTNO> <SUBJECT>Creditability of service.</SUBJECT> <SECTNO>210.6</SECTNO> <SUBJECT>Service credited for creditable military service.</SUBJECT> <SECTNO>210.7</SECTNO> <SUBJECT>Verification of service claimed.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f.</P> </AUTH> <SECTION> <SECTNO>§ 210.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> <CITA>[49 FR 46731, Nov. 28, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.2</SECTNO> <SUBJECT>Definition of service.</SUBJECT> <P>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 § 210.3(b) of this chapter and any month in which an employee is credited with compensation under § 211.12 of this chapter based on benefits paid under title VII of the Regional Rail Reorganization Act of 1973.</P> <CITA>[53 FR 17182, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.3</SECTNO> <SUBJECT>Month of service.</SUBJECT> <P>(a) <E T="03">Reported.</E> 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 service; or is credited with compensation under § 211.12 of this chapter based on benefits paid under title VII of the Regional Rail Reorganization Act of 1973.</P> <P>(b) <E T="03">Deemed.</E> 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.</P> <P>(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:</P> <P>(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 § 211.15 of this chapter; and</P> <P>(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.</P> <P>(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:</P> <MATH DEEP="26" SPAN="2"> <PRTPAGE P="203"/> <MID>EC14NO91.103</MID> </MATH> <FP>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.</FP> <P>(3) <E T="03">Examples.</E> The provisions of paragraphs (b)(1) and (2) of this section may be illustrated by the following examples. </P> <EXAMPLE> <HD SOURCE="HED">Example (1):</HD> <P>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. </P> <LDRWK> <FL-2>(1) Enter the annual maximum for non-tier I compensation for the calendar year </FL-2> <LDRFIG>$29,700</LDRFIG> <FL-2>(2) Divide line (1) by 12</FL-2> <FL-2>$29,700÷12 </FL-2> <LDRFIG>$2,475</LDRFIG> <FL-2>(3) Enter the employee's reported months of service for the calendar year </FL-2> <LDRFIG>9</LDRFIG> <FL-2>(4) Multiply line (2) by line (3) $2,475×9 </FL-2> <LDRFIG>$22,275</LDRFIG> <FL-2>(5) Enter the employee's non-tier I compensation for the calendar year </FL-2> <LDRFIG>$20,000</LDRFIG> <FL-2>(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.</FL-2> <FL-2>$20,000−$22,275 </FL-2> <LDRFIG>0</LDRFIG> </LDRWK> <P>a. If line (6) is zero, the employee does not have sufficient non-tier I compensation to be credited with deemed months of service.</P> <P>b. If line (6) is greater than zero, the employee has sufficient non-tier I compensation to be credited with deemed months of service.</P> <P>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.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example (2):</HD> <P>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. </P> <LDRWK> <FL-2>(1) Enter the annual maximum for non-tier I compensation for the calendar year </FL-2> <LDRFIG>$29,700</LDRFIG> <FL-2>(2) Divide line (1) by 12</FL-2> <FL-2>$29,700÷12 </FL-2> <LDRFIG>$2,475</LDRFIG> <FL-2>(3) Enter the employee's reported months of service for the calendar year </FL-2> <LDRFIG>9</LDRFIG> <FL-2>(4) Multiply line (2) by line (3) $2,475×9 </FL-2> <LDRFIG>$22,275</LDRFIG> <FL-2>(5) Enter the employee's non-tier I compensation for the calendar year </FL-2> <LDRFIG>$25,000</LDRFIG> <FL-2>(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.</FL-2> <FL-2>$25,000−$22,275 </FL-2> <LDRFIG>$2,725</LDRFIG> </LDRWK> <P>a. If line (6) is zero, the employee does not have sufficient non-tier I compensation to be credited with deemed months of service.</P> <P>b. If line (6) is greater than zero, the employee has sufficient non-tier I compensation to be credited with deemed months of service.</P> <P>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 § 210.3(b)(2).</P> <MATH DEEP="26" SPAN="2"> <MID>EC14NO91.104</MID> </MATH> <MATH DEEP="26" SPAN="2"> <MID>EC14NO91.105</MID> </MATH> <MATH DEEP="26" SPAN="2"> <PRTPAGE P="204"/> <MID>EC14NO91.106</MID> </MATH> <LDRWK> <FL-2>(3) Months of service = 25,000÷2,475 or 10.10</FL-2> <FL-2>(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.</FL-2> <FL-2>10.10 becomes </FL-2> <LDRFIG>11</LDRFIG> </LDRWK> <FP>Employee B is credited with 11 months of service for 1985; nine reported months (January through September) and two deemed months (October and November).</FP> </EXAMPLE> <CITA>[53 FR 17182, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.4</SECTNO> <SUBJECT>Year of service.</SUBJECT> <P>(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.</P> <P>(b) The term years of service means the total number of years an employee is credited with service as defined in § 210.2 of this part.</P> <CITA>[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17183, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.5</SECTNO> <SUBJECT>Creditability of service.</SUBJECT> <P>(a) <E T="03">Service before January 1, 1937.</E> (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).</P> <P>(2) An employee is considered to have an employment relation on August 29, 1935, if:</P> <P>(i) The employee was on that date in active railroad service for an employer; or</P> <P>(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</P> <P>(iii) The employee had 6 months of active railroad service for an employer during the period August 29, 1935, through December 31, 1945; or</P> <P>(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</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Service after December 31, 1936.</E> 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.</P> <P>(c) <E T="03">Service after December 31, 1936, to a local lodge or division.</E> 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 § 211.2 of this chapter.</P> <P>(d) <E T="03">Service based on time lost.</E> 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 § 211.3 of this chapter.</P> <P>(e) <E T="03">Place of performance of service.</E> (1) Service performed for an employer who <PRTPAGE P="205"/>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.</P> <P>(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.</P> <P>(f) <E T="03">Service as employee representative.</E> Service performed as an employee representative is creditable in the same manner and to the same extent as service performed for an employer.</P> <P>(g) <E T="03">Service performed after the beginning date of an annuity.</E> Service performed after the beginning date of an annuity shall be used in the annuity recomputation.</P> <CITA>[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.6</SECTNO> <SUBJECT>Service credited for creditable military service.</SUBJECT> <P>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 § 210.5, provided that the employee has not previously been credited with reported or deemed service for an employer for the same month(s).</P> <CITA>[53 FR 17184, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 210.7</SECTNO> <SUBJECT>Verification of service claimed.</SUBJECT> <P>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:</P> <P>(a) Service claimed will be verified from the payroll or other detailed records of the employer.</P> <P>(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.</P> <P>(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.</P> <P>(d) If the employer's records do not establish the service claimed, the employee may submit affidavits and other evidence in support of the service claimed in either of the following instances:</P> <P>(1) When there are no employer records available to show whether or not the service claimed was performed; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(g) For the purpose of verifying service after 1936, employers shall preserve in accessible form the original records <PRTPAGE P="206"/>of service and compensation for a period of five calendar years after the due date of the report.</P> <APPRO>(Approved by the Office of Management and Budget under control numbers 3220-0003 and 3220-0008)</APPRO> <CITA>[49 FR 46731, Nov. 28, 1984, as amended at 52 FR 11016, Apr. 6, 1987]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 211</EAR> <HD SOURCE="HED">PART 211—CREDITABLE RAILROAD COMPENSATION</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>211.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>211.2</SECTNO> <SUBJECT>Definition of compensation.</SUBJECT> <SECTNO>211.3</SECTNO> <SUBJECT>Compensation paid for time lost.</SUBJECT> <SECTNO>211.4</SECTNO> <SUBJECT>Vacation pay.</SUBJECT> <SECTNO>211.5</SECTNO> <SUBJECT>Employee representative compensation.</SUBJECT> <SECTNO>211.6</SECTNO> <SUBJECT>Compensation based on waiver or refund of organization dues.</SUBJECT> <SECTNO>211.7</SECTNO> <SUBJECT>Compensation credited for creditable military service.</SUBJECT> <SECTNO>211.8</SECTNO> <SUBJECT>Displacement allowance.</SUBJECT> <SECTNO>211.9</SECTNO> <SUBJECT>Dismissal allowance.</SUBJECT> <SECTNO>211.10</SECTNO> <SUBJECT>Separation allowance or severance pay.</SUBJECT> <SECTNO>211.11</SECTNO> <SUBJECT>Miscellaneous pay.</SUBJECT> <SECTNO>211.12</SECTNO> <SUBJECT>Compensation credited for title VII benefits.</SUBJECT> <SECTNO>211.13</SECTNO> <SUBJECT>Payments made after death.</SUBJECT> <SECTNO>211.14</SECTNO> <SUBJECT>Maximum creditable compensation.</SUBJECT> <SECTNO>211.15</SECTNO> <SUBJECT>Verification of compensation claimed.</SUBJECT> <SECTNO>211.16</SECTNO> <SUBJECT>Finality of records of compensation.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>49 FR 46732, Nov. 28, 1984, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 211.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 211.2</SECTNO> <SUBJECT>Definition of compensation.</SUBJECT> <P>(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:</P> <P>(1) The value of the commodity, service or privilege; and</P> <P>(2) That the amount agreed upon to be paid may be paid in the form of the commodity, service or privilege.</P> <P>(b) Compensation includes, but is not limited to, the following:</P> <P>(1) Salary, wages and bonuses;</P> <P>(2) Pay for time lost as an employee;</P> <P>(3) Cash tips of $20 or more received in a calendar month;</P> <P>(4) Vacation pay;</P> <P>(5) Military pay as determined in § 211.7 of this part;</P> <P>(6) Displacement allowances as provided for in § 211.8 of this part;</P> <P>(7) Dismissal allowances as provided for in § 211.9 of this part;</P> <P>(8) Separation allowances as provided for in § 211.10 of this part;</P> <P>(9) Miscellaneous pay as provided for in § 211.11 of this part;</P> <P>(10) Payments made under title VII of the Regional Rail Reorganization Act of 1973 as provided for in § 211.12 of this part.</P> <P>(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).</P> <P>(12) Voluntary payments of any tax by an employer, without deducting such tax from the employee's salary.</P> <P>(13) Payments made by an employer with respect to a deceased employee except as provided for in § 211.13 of this part.</P> <P>(c) Compensation does not include:</P> <P>(1) Tips, except as provided in paragraph (b)(3) of this section;</P> <P>(2) Payments for services performed by a nonresident alien for the period the individual is temporarily present in the United States as a nonimmigrant <PRTPAGE P="207"/>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;</P> <P>(3) Remuneration paid in certain cases, as described below, for services performed for a local lodge or division of a railway labor organization.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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;</P> <P>(5) Except as provided in § 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</P> <P>(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.</P> <CITA>[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988; 58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.3</SECTNO> <SUBJECT>Compensation paid for time lost.</SUBJECT> <P>(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:</P> <P>(1) Pay received for a certain period of time due to personal injury, or</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 211.4</SECTNO> <SUBJECT>Vacation pay.</SUBJECT> <P>Payments made to an employee with respect to vacation or holidays shall be <PRTPAGE P="208"/>considered creditable compensation whether or not the employee takes the vacation or holiday.</P> <CITA>[58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.5</SECTNO> <SUBJECT>Employee representative compensation.</SUBJECT> <P>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.</P> <CITA>[53 FR 17184, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.6</SECTNO> <SUBJECT>Compensation based on waiver or refund of organization dues.</SUBJECT> <P>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.</P> <CITA>[53 FR 17184, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.7</SECTNO> <SUBJECT>Compensation credited for creditable military service.</SUBJECT> <P>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:</P> <P>(a) $160 for each calendar month before 1968;</P> <P>(b) $260 for each calendar month after 1967 and before 1975;</P> <P>(c) For years after 1974, the actual military earnings reported as wages under the Social Security Act.</P> <CITA>[53 FR 17184, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.8</SECTNO> <SUBJECT>Displacement allowance.</SUBJECT> <P>An allowance paid to an employee because he has been displaced to a lower paying position is creditable compensation.</P> <CITA>[58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.9</SECTNO> <SUBJECT>Dismissal allowance.</SUBJECT> <P>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.</P> <CITA>[53 FR 17184, May 16, 1988, as amended at 58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.10</SECTNO> <SUBJECT>Separation allowance or severance pay.</SUBJECT> <P>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 § 211.11 of this part.</P> <CITA>[58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.11</SECTNO> <SUBJECT>Miscellaneous pay.</SUBJECT> <P>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).</P> <CITA>[58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.12</SECTNO> <SUBJECT>Compensation credited for title VII benefits.</SUBJECT> <P>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 § 211.13(a) of this part for compensation earned prior to 1985 or the annual creditable amount defined <PRTPAGE P="209"/>in § 211.13(b) of this part for compensation earned after 1984.</P> <CITA>[53 FR 17185, May 16, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.13</SECTNO> <SUBJECT>Payments made after death.</SUBJECT> <P>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.</P> <CITA>[58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.14</SECTNO> <SUBJECT>Maximum creditable compensation.</SUBJECT> <P>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.</P> <CITA>[58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.15</SECTNO> <SUBJECT>Verification of compensation claimed.</SUBJECT> <P>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:</P> <P>(a) If the compensation claimed is in excess of the maximum creditable amounts defined in § 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.</P> <P>(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 § 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.</P> <CITA>[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17185, May 16, 1988. Redesignated at 58 FR 45251, Aug. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 211.16</SECTNO> <SUBJECT>Finality of records of compensation.</SUBJECT> <P>(a) <E T="03">Time limit for corrections to records of compensation.</E> The Board's record of the compensation reported as paid to an employee for a given period shall be 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 § 209.6 of this chapter.</P> <P>(b) <E T="03">Correction after 4 years.</E> (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.</P> <P>(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:</P> <P>(i) Where the compensation was posted for the wrong person or the wrong period;</P> <P>(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;</P> <P>(iii) Where a determination pertaining to the coverage under the Railroad Retirement Act of an individual, <PRTPAGE P="210"/>partnership, or company as an employer, is retroactive; or</P> <P>(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.</P> <P>(c) <E T="03">Limitation on crediting service.</E> (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.</P> <P>(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.</P> <CITA>[62 FR 3790, Jan. 27, 1997]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 212</EAR> <HD SOURCE="HED">PART 212—MILITARY SERVICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>212.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>212.2</SECTNO> <SUBJECT>Military service defined.</SUBJECT> <SECTNO>212.3</SECTNO> <SUBJECT>Crediting of military service.</SUBJECT> <SECTNO>212.4</SECTNO> <SUBJECT>Periods of creditable military service.</SUBJECT> <SECTNO>212.5</SECTNO> <SUBJECT>Verification of military service.</SUBJECT> <SECTNO>212.6</SECTNO> <SUBJECT>Board's determination for use of military service.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>49 FR 46734, Nov. 28, 1984, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 212.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 212.2</SECTNO> <SUBJECT>Military service defined.</SUBJECT> <P>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 and the Merchant Marine is not creditable under the Railroad Retirement Act.</P> </SECTION> <SECTION> <SECTNO>§ 212.3</SECTNO> <SUBJECT>Crediting of military service.</SUBJECT> <P>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 § 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 § 211.7 of this chapter.</P> </SECTION> <SECTION> <SECTNO>§ 212.4</SECTNO> <SUBJECT>Periods of creditable military service.</SUBJECT> <P>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:</P> <P>(a) April 21, 1898, through August 13, 1898—Spanish American War;</P> <P>(b) February 4, 1899, through April 27, 1902—Philippine Insurrection;</P> <P>(c) May 9, 1916, through February 5, 1917—Mexican Border Disturbances;</P> <P>(d) April 6, 1917, through November 11, 1918—World War I;<PRTPAGE P="211"/> </P> <P>(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:</P> <P>(1) They were in military service on December 31, 1946, or</P> <P>(2) They were required to remain in military service involuntarily after December 31, 1946;</P> <P>(f) June 15, 1948, through December 15, 1950. This service is creditable if:</P> <P>(1) Entered into involuntarily; or</P> <P>(2) Entered into voluntarily, but only if:</P> <P>(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;</P> <P>(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.</P> <P>(g) December 16, 1950, through September 14, 1978—National Emergency.</P> <CITA>[49 FR 46734, Nov. 28, 1984, as amended at 55 FR 20454, May 17, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 212.5</SECTNO> <SUBJECT>Verification of military service.</SUBJECT> <P>Military service may be verified by the following proof:</P> <P>(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</P> <P>(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</P> <P>(c) A photocopy of the document described in paragraph (a) or (b) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 212.6</SECTNO> <SUBJECT>Board's determination for use of military service.</SUBJECT> <P>(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.</P> <P>(b) Generally, it is to the employee's advantage for the employee's military service to be creditable as railroad service where any of the following conditions may be met with the use of the employee's military service as railroad service:</P> <P>(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</P> <P>(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 § 216.6 of this chapter; or</P> <P>(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</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(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 <PRTPAGE P="212"/>children of retired employees under the Railroad Retirement Act; or</P> <P>(2) Crediting the military service under the Social Security Act would entitle employee to vested dual benefit payments.</P> </SECTION> </PART> <PART> <EAR>Pt. 216</EAR> <HD SOURCE="HED">PART 216—ELIGIBILITY FOR AN ANNUITY</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>216.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>216.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>216.3</SECTNO> <SUBJECT>Other regulations related to this part.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Current Connection With the Railroad Industry</HD> <SECTNO>216.11</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.12</SECTNO> <SUBJECT>When current connection is required.</SUBJECT> <SECTNO>216.13</SECTNO> <SUBJECT>Regular current connection test.</SUBJECT> <SECTNO>216.14</SECTNO> <SUBJECT>Regular non-railroad employment that will not break a current connection.</SUBJECT> <SECTNO>216.15</SECTNO> <SUBJECT>Special current connection test.</SUBJECT> <SECTNO>216.16</SECTNO> <SUBJECT>What is regular non-railroad employment.</SUBJECT> <SECTNO>216.17</SECTNO> <SUBJECT>What amount of regular non-railroad employment will break a current connection.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Railroad and Last Non-Railroad Employment</HD> <SECTNO>216.21</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.22</SECTNO> <SUBJECT>Work as an employee which affects payment.</SUBJECT> <SECTNO>216.23</SECTNO> <SUBJECT>Work which does not affect eligibility.</SUBJECT> <SECTNO>216.24</SECTNO> <SUBJECT>Relinquishment of rights to return to work.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Employee Annuity</HD> <SECTNO>216.30</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.31</SECTNO> <SUBJECT>Who is eligible for an age annuity.</SUBJECT> <SECTNO>216.32</SECTNO> <SUBJECT>Who is eligible for a disability annuity.</SUBJECT> <SECTNO>216.33</SECTNO> <SUBJECT>What is required for payment of an age or disability annuity.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Supplemental Annuity</HD> <SECTNO>216.40</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.41</SECTNO> <SUBJECT>Who is entitled to a supplemental annuity.</SUBJECT> <SECTNO>216.42</SECTNO> <SUBJECT>How a private railroad pension affects a supplemental annuity.</SUBJECT> <SECTNO>216.43</SECTNO> <SUBJECT>Effect of a supplemental annuity on other benefits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Spouse and Divorced Spouse Annuities</HD> <SECTNO>216.50</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.51</SECTNO> <SUBJECT>Who is eligible for a spouse annuity.</SUBJECT> <SECTNO>216.52</SECTNO> <SUBJECT>Who is eligible for an annuity as a divorced spouse.</SUBJECT> <SECTNO>216.53</SECTNO> <SUBJECT>What is required for payment.</SUBJECT> <SECTNO>216.54</SECTNO> <SUBJECT>Who is an employee's wife or husband.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Widow(er), Surviving Divorced Spouse, and Remarried Widow(er) Annuities</HD> <SECTNO>216.60</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.61</SECTNO> <SUBJECT>Who is eligible for an annuity as a widow(er).</SUBJECT> <SECTNO>216.62</SECTNO> <SUBJECT>Who is eligible for an annuity as a surviving divorced spouse.</SUBJECT> <SECTNO>216.63</SECTNO> <SUBJECT>Who is eligible for an annuity as a remarried widow(er).</SUBJECT> <SECTNO>216.64</SECTNO> <SUBJECT>What is required for payment.</SUBJECT> <SECTNO>216.65</SECTNO> <SUBJECT>Who is an employee's widow(er).</SUBJECT> <SECTNO>216.66</SECTNO> <SUBJECT>Who is an employee's surviving divorced spouse.</SUBJECT> <SECTNO>216.67</SECTNO> <SUBJECT>“Child in care.”</SUBJECT> <SECTNO>216.68</SECTNO> <SUBJECT>Disability period for widow(er), surviving divorced spouse, or remarried widow(er).</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Child's Annuity</HD> <SECTNO>216.70</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.71</SECTNO> <SUBJECT>Who is eligible for a child's annuity.</SUBJECT> <SECTNO>216.72</SECTNO> <SUBJECT>What is required for payment of a child's annuity.</SUBJECT> <SECTNO>216.73</SECTNO> <SUBJECT>Who may be re-entitled to a child's annuity.</SUBJECT> <SECTNO>216.74</SECTNO> <SUBJECT>When a child is a full-time elementary or secondary school student.</SUBJECT> <SECTNO>216.75</SECTNO> <SUBJECT>When a child is a full-time student during a period of non-attendance.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Parent's Annuity</HD> <SECTNO>216.80</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.81</SECTNO> <SUBJECT>Who is eligible for a parent's annuity.</SUBJECT> <SECTNO>216.82</SECTNO> <SUBJECT>What is required for payment.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Eligibility for More Than One Annuity</HD> <SECTNO>216.90</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>216.91</SECTNO> <SUBJECT>Entitlement as an employee and spouse, divorced spouse, or survivor.</SUBJECT> <SECTNO>216.92</SECTNO> <SUBJECT>Entitlement as a spouse or divorced spouse and as a survivor.</SUBJECT> <SECTNO>216.93</SECTNO> <SUBJECT>Entitlement to more than one survivor annuity.</SUBJECT> <SECTNO>216.94</SECTNO> <SUBJECT>Entitlement to more than one divorced spouse annuity.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>45 U.S.C. 231f.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 28692, June 24, 1991, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="213"/> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 216.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>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</P> <P>(a) <E T="03">Regular annuity.</E> A regular monthly annuity is provided for:</P> <P>(1) An employee who retires because of age or disability;</P> <P>(2) An employee's spouse or divorced spouse; or</P> <P>(3) The widow, widower, child, parent, remarried widow or widower, or surviving divorced spouse of an employee.</P> <P>(b) <E T="03">Supplemental annuity.</E> An employee who retires because of age or disability may also be entitled to a supplemental annuity.</P> </SECTION> <SECTION> <SECTNO>§ 216.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Except as otherwise expressly noted, as used in this part—</P> <P> <E T="03">Age</E> means an individual's age on the day preceding the anniversary date of his or her birth.</P> <P> <E T="03">Annuity</E> 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.</P> <P> <E T="03">Apply</E> 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.</P> <P> <E T="03">Attainment of age</E> 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.</P> <P> <E T="03">Board</E> means the Railroad Retirement Board.</P> <P> <E T="03">Claimant</E> means an individual who files an annuity application or for whom an annuity application is filed.</P> <P> <E T="03">Eligible</E> means that an individual meets all the requirements for payment of an annuity but has not yet applied for one.</P> <P> <E T="03">Employee</E> means an individual who is or has been in the service of an employer as here defined.</P> <P> <E T="03">Employer</E> 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.</P> <P> <E T="03">Entitled</E> means that an individual has applied for and has established his or her rights to benefits.</P> <P> <E T="03">Railroad Retirement Act</E> means the Railroad Retirement Act of 1974, as amended.</P> <P> <E T="03">Re-entitled annuity</E> 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.</P> <P> <E T="03">Retirement age</E> 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.</P> <P> <E T="03">Social Security Act</E> means the Social Security Act as amended.</P> <P> <E T="03">Tier I benefit</E> 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.</P> <P> <E T="03">Tier II benefit</E> 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.</P> <P> <E T="03">Year of service</E> means 12 calendar months, consecutive or otherwise, of service creditable to an employee as described in part 210 of this chapter.</P> </SECTION> <SECTION> <SECTNO>§ 216.3</SECTNO> <SUBJECT>Other regulations related to this part.</SUBJECT> <P>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 <PRTPAGE P="214"/>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Current Connection With the Railroad Industry</HD> <SECTION> <SECTNO>§ 216.11</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 216.12</SECTNO> <SUBJECT>When current connection is required.</SUBJECT> <P>(a) A current connection is required to qualify an individual for the following types of railroad retirement benefits:</P> <P>(1) An employee occupational disability annuity as described in subpart D of this part;</P> <P>(2) A supplemental annuity as described in subpart E of this part;</P> <P>(3) An employee vested dual benefit in certain cases;</P> <P>(4) A survivor annuity as described in subparts G, H, and I of this part; and</P> <P>(5) A lump-sum death payment as described in part 234 of this chapter.</P> <P>(b) A current connection which was established when an employee's annuity began is effective for:</P> <P>(1) Any annuity under this part for which the employee later becomes eligible; and</P> <P>(2) Any survivor annuity under this part or a lump-sum death payment under part 234 of this chapter.</P> </SECTION> <SECTION> <SECTNO>§ 216.13</SECTNO> <SUBJECT>Regular current connection test.</SUBJECT> <P>An employee has a current connection with the railroad industry if he or she meets one of the following requirements:</P> <P>(a) The employee has creditable railroad service in at least 12 of the 30 consecutive months immediately preceding the earlier of:</P> <P>(1) The month his or her annuity begins; or</P> <P>(2) The month he or she dies.</P> <P>(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:</P> <P>(1) The month his or her annuity begins; or</P> <P>(2) The month he or she dies.</P> </SECTION> <SECTION> <SECTNO>§ 216.14</SECTNO> <SUBJECT>Regular non-railroad employment that will not break a current connection.</SUBJECT> <P>Regular non-railroad employment will not break an employee's current connection if it is performed during the 30-month period described in § 216.13(b), in or after the month the annuity begins, or in the month the employee dies.</P> </SECTION> <SECTION> <SECTNO>§ 216.15</SECTNO> <SUBJECT>Special current connection test.</SUBJECT> <P>(a) <E T="03">For survivor annuities.</E> 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:</P> <P>(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;</P> <P>(2) The employee has no quarters of coverage as defined in section 213 of the Social Security Act; or</P> <P>(3) The employee received a pension or a retirement annuity that began before 1948 based on at least 114 months of service.</P> <P>(b) <E T="03">For survivor and supplemental annuities.</E> An employee who does not have a current connection under the regular test has a current connection in order <PRTPAGE P="215"/>to pay a supplemental or survivor annuity if he or she meets all of the following requirements:</P> <P>(1) Has been credited with at least 25 years of railroad service;</P> <P>(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;</P> <P>(3) Did not decline an offer of employment in the same “class or craft” as his or her most recent railroad service; and</P> <P>(4) Was alive on October 1, 1981.</P> <P>(c) <E T="03">“Involuntarily and without fault” defined.</E> An employee is considered to have stopped railroad employment involuntarily and without fault if:</P> <P>(1) The employee loses his or her job;</P> <P>(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</P> <P>(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.</P> <P>(d) <E T="03">Effect of separation allowance.</E> 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.</P> <P>(e) <E T="03">“Class or craft” defined.</E> The terms“class or craft,” as used in this section, have the same meaning as they do generally in the railroad industry.</P> <P>(f) <E T="03">For supplemental annuities only.</E> 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 §§ 216.13 and 216.17.</P> </SECTION> <SECTION> <SECTNO>§ 216.16</SECTNO> <SUBJECT>What is regular non-railroad employment.</SUBJECT> <P>(a) Regular non-railroad employment is full or part-time employment for pay.</P> <P>(b) Regular non-railroad employment does not include any of the following:</P> <P>(1) Self-employment;</P> <P>(2) Temporary work provided as relief by an agency of a Federal, State, or local government;</P> <P>(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;</P> <P>(4) Involuntary military service not creditable under the Railroad Retirement Act;</P> <P>(5) Employment with the following agencies of the United States Government:</P> <P>(i) Department of Transportation;</P> <P>(ii) Interstate Commerce Commission;</P> <P>(iii) National Mediation Board;</P> <P>(iv) Railroad Retirement Board;</P> <P>(v) National Transportation Safety Board; or</P> <P>(vi) Surface Transportation Board.</P> <P>(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</P> <P>(7) Employment with the Alaska Railroad so long as it is an instrumentality of the State of Alaska.</P> <CITA>[56 FR 28692, June 24, 1991, as amended at 62 FR 11324, Mar. 12, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.17</SECTNO> <SUBJECT>What amount of regular non-railroad employment will break a current connection.</SUBJECT> <P>The amount of regular non-railroad employment needed to break a current connection depends on when the applicable 30-month period ends (see § 216.13 of this part), as follows:</P> <P>(a) If the 30-month period ends in the calendar year before or in the same calendar year as the annuity begins or the <PRTPAGE P="216"/>month the employee dies, the current connection is broken if the employee:</P> <P>(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</P> <P>(2) Works and earns at least $200 in wages in any 3 months within the interval described in paragraph (a)(1) of this section.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Railroad and Last Non-Railroad Employment</HD> <SECTION> <SECTNO>§ 216.21</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 216.22</SECTNO> <SUBJECT>Work as an employee which affects payment.</SUBJECT> <P>(a) <E T="03">Work for a railroad employer.</E> Work for pay as an employee of a railroad employer always prevents payment of an annuity.</P> <P>(b) <E T="03">Work for last non-railroad employer.</E> 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:</P> <P>(1) Any non-railroad employer from whom the individual last resigned (in point of time) in order to receive an annuity; and</P> <P>(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 service from which the individual resigned in order to receive an annuity.</P> <P>(c) <E T="03">Corporate officers.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.23</SECTNO> <SUBJECT>Work which does not affect eligibility.</SUBJECT> <P>An individual may engage in any of the following without adversely affecting his or her annuity:</P> <P>(a) <E T="03">Work for a railway labor organization.</E> 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.</P> <P>(b) <E T="03">Work without pay.</E> 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.</P> <P>(c) <E T="03">Self-employment.</E> 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 <PRTPAGE P="217"/>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:</P> <P>(1) <E T="03">Instructions.</E> 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.</P> <P>(2) <E T="03">Training.</E> 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.</P> <P>(3) <E T="03">Integration into the employer's business.</E> 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.</P> <P>(4) <E T="03">Services rendered personally.</E> 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.</P> <P>(5) <E T="03">Hiring, supervising, and payment of assistants.</E> 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 indicates an independent contractor status.</P> <P>(6) <E T="03">Continuing work relationship.</E> 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.</P> <P>(7) <E T="03">Set hours of work.</E> 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.</P> <P>(8) <E T="03">Full time required.</E> 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 <PRTPAGE P="218"/>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.</P> <P>(9) <E T="03">Working on employer's premises.</E> 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.</P> <P>(10) <E T="03">Order or sequence set.</E> 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.</P> <P>(11) <E T="03">Oral or written reports.</E> 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.</P> <P>(12) <E T="03">Payment by hour, week, month.</E> 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.</P> <P>(13) <E T="03">Payment of business and/or traveling expenses.</E> Payment by the employer of expenses which an individual incurs in connection with the employer's business indicates that the individual is an employee.</P> <P>(14) <E T="03">Furnishing of tools and materials.</E> 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.</P> <P>(15) <E T="03">Investment in facilities.</E> 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.</P> <P>(16) <E T="03">Realization of profit or loss.</E> 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:</P> <P>(i) Hires, directs, and pays assistants;</P> <P>(ii) Has his or her own office, equipment, materials, or other facilities for doing the work;</P> <P>(iii) Has continuing and recurring liabilities or obligations, and success or failure depends on the relation of receipts to expenditures; or</P> <P>(iv) Agrees to perform specific jobs for prices agreed upon in advance and <PRTPAGE P="219"/>pays expenses incurred in connection with the work.</P> <P>(17) <E T="03">Working for more than one firm at a time.</E> If a worker performs more than <E T="03">de minimus</E> 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.</P> <P>(18) <E T="03">Making service available to the general public.</E> 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.</P> <P>(19) <E T="03">Employer's right to discharge.</E> 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.</P> <P>(20) <E T="03">Employee's right to terminate.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.24</SECTNO> <SUBJECT>Relinquishment of rights to return to work.</SUBJECT> <P>(a) <E T="03">What return to work rights must be given up.</E> 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.</P> <P>(b) <E T="03">When right to return to work is ended.</E> An individual's right to return to work for a railroad employer is ended whenever any of the following events occur:</P> <P>(1) The employer reports to the Board that the individual no longer has the right;</P> <P>(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:</P> <P>(i) The individual certifies to the Board that the right has been given up;</P> <P>(ii) The Board notifies the employer of the individual's certification; and</P> <P>(iii) The employer either confirms the individual's right has been given up or fails to reply within 10 days following the day the Board mailed the notice to the employer;</P> <P>(3) An event occurs which under the established rules or practices of the employer automatically ends that right;</P> <P>(4) The employer or the individual or both take an action which clearly and positively ends that right;</P> <P>(5) The individual never had that right and permanently stops working;</P> <P>(6) The Board gives up that right for the individual, having been authorized to do so by the individual;</P> <P>(7) The individual dies; or</P> <P>(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.</P> <APPRO>(The information collection requirements contained in paragraph (b) were approved by the Office of Management and Budget under control number 3220-0016)</APPRO> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Employee Annuity</HD> <SECTION> <SECTNO>§ 216.30</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="220"/> <SECTNO>§ 216.31</SECTNO> <SUBJECT>Who is eligible for an age annuity.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Annuities based on 10 years of service.</E> An employee with 10 years of railroad service but less than 30 years of service is eligible for an annuity if he or she:</P> <P>(1) Has attained retirement age; or</P> <P>(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.</P> <P>(b) <E T="03">Annuities based on 30 years of service.</E> 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:</P> <P>(1) The employee annuity begins before the month in which the employee is age 62; and either</P> <P>(2) He or she had not attained age 60, prior to July 1, 1984; or</P> <P>(3) He or she had not completed 30 years of railroad service prior to July 1, 1984.</P> <P>(c) <E T="03">Change from employee disability to age annuity.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.32</SECTNO> <SUBJECT>Who is eligible for a disability annuity.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Disability for work in regular railroad occupation.</E> 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:</P> <P>(1) Has not attained retirement age; and</P> <P>(2) Has a current connection with the railroad industry; and has either:</P> <P>(3) Completed 20 years of service; or</P> <P>(4) Completed 10 years of service and is at least 60 years old.</P> <P>(b) <E T="03">Disabled for work in any regular employment.</E> An employee disabled for work in any regular employment, as defined in part 220 of this chapter, is eligible for a disability annuity if he or she:</P> <P>(1) Is under retirement age; and</P> <P>(2) Has completed 10 years of service.</P> </SECTION> <SECTION> <SECTNO>§ 216.33</SECTNO> <SUBJECT>What is required for payment of an age or disability annuity.</SUBJECT> <P>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.</P> <P>(a) To receive payment of an employee annuity based on age, an eligible employee must:</P> <P>(1) Apply to be entitled to an annuity; and</P> <P>(2) Give up the right to return to service with his or her last railroad employer.</P> <P>(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.</P> <P>(c) To receive payment of an employee annuity based on disability, and eligible employee must apply to be entitled to an annuity.</P> <P>(d) When requested, the employee must submit evidence to support his or <PRTPAGE P="221"/>her application, such as proof of age or evidence of disability.</P> <APPRO>(The information collection requirements contained in this section were approved by the Office of Management and Budget under control number 3220-0002)</APPRO> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Supplemental Annuity</HD> <SECTION> <SECTNO>§ 216.40</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 216.41</SECTNO> <SUBJECT>Who is entitled to a supplemental annuity.</SUBJECT> <P>An employee is entitled to a supplemental annuity if he or she:</P> <P>(a) Has been credited with railroad service in at least one month before October 1981;</P> <P>(b) Is entitled to the payment of an employee annuity awarded after June 30, 1966;</P> <P>(c) Has a current connection with the railroad industry when the employee annuity begins;</P> <P>(d) Has given up the right to return to work as shown in subpart C of this part; and either</P> <P>(e) Is age 65 or older and has completed 25 years of service; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.42</SECTNO> <SUBJECT>How a private railroad pension affects a supplemental annuity.</SUBJECT> <P>(a) <E T="03">What is a private railroad pension.</E> 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:</P> <P>(1) Is a written plan or arrangement which is communicated to the employees to whom it applies;</P> <P>(2) Is established and maintained by an employer for a defined group of employees; and</P> <P>(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.</P> <P>(b) <E T="03">Defined contribution plan.</E> 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.</P> <P>(c) <E T="03">Other than retirement benefits.</E> 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.</P> <P>(d) <E T="03">Effective date of private railroad pension for supplemental annuity purposes.</E> 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.</P> <P>(e) <E T="03">Effect of private railroad pension.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.43</SECTNO> <SUBJECT>Effect of a supplemental annuity on other benefits.</SUBJECT> <P>(a) <E T="03">Employee annuity.</E> 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.<PRTPAGE P="222"/> </P> <P>(b) <E T="03">Spouse or survivor annuity.</E> The payment of a supplemental annuity does not affect the amount of a spouse or survivor annuity.</P> <P>(c) <E T="03">Residual lump-sum.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Spouse and Divorced Spouse Annuities</HD> <SECTION> <SECTNO>§ 216.50</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 216.51</SECTNO> <SUBJECT>Who is eligible for a spouse annuity.</SUBJECT> <P>(a) To be eligible for an annuity, a spouse must:</P> <P>(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</P> <P>(2) Stop working for any railroad employer.</P> <P>(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:</P> <P>(1) Age 65 or older;</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) Retirement age or older;</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) Age 60 or older;</P> <P>(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</P> <P>(3) Age 60 but less than retirement age. In such case, the tier I component is reduced if the following conditions are met:</P> <P>(i) The employee was under age 62 at the time his or her annuity began;</P> <P>(ii) The employee annuity began after June 30, 1984;</P> <P>(iii) The employee was under age 60 on June 30, 1984 or completed 30 years of railroad service after June 30, 1984; and</P> <P>(iv) The spouse annuity begins after June 30, 1984.</P> </SECTION> <SECT