[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2010 Edition]
[From the U.S. Government Printing Office]
[[Page 1]]
20
Parts 1 to 399
Revised as of April 1, 2010
Employees' Benefits
________________________
Containing a codification of documents of general
applicability and future effect
As of April 1, 2010
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter I--Office of Workers' Compensation Programs,
Department of Labor 3
Chapter II--Railroad Retirement Board 161
Finding Aids:
Table of CFR Titles and Chapters........................ 629
Alphabetical List of Agencies Appearing in the CFR...... 649
List of CFR Sections Affected........................... 659
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 1.1 refers to
title 20, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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April 1, 2010.
[[Page ix]]
THIS TITLE
Title 20--Employees' Benefits is composed of three volumes. The
first volume, containing parts 1-399, includes all current regulations
issued by the Office of Workers' Compensation Programs, Department of
Labor and the Railroad Retirement Board. The second volume, containing
parts 400-499, includes all current regulations issued by the Social
Security Administration. The third volume, containing part 500 to End,
includes all current regulations issued by the Employees' Compensation
Appeals Board, the Employment and Training Administration, the
Employment Standards Administration, the Benefits Review Board, the
Office of the Assistant Secretary for Veterans' Employment and Training
(all of the Department of Labor) and the Joint Board for the Enrollment
of Actuaries. The contents of these volumes represent all current
regulations codified under this title of the CFR as of April 1, 2010.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains parts 1 to 399)
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Part
chapter i--Office of Workers' Compensation Programs,
Department of Labor....................................... 1
chapter ii--Railroad Retirement Board....................... 200
[[Page 3]]
CHAPTER I--OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR
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SUBCHAPTER A--ORGANIZATION AND PROCEDURES
Part Page
1 Performance of functions.................... 5
SUBCHAPTER B--FEDERAL EMPLOYEES' COMPENSATION ACT
10 Claims for compensation under the Federal
Employees' Compensation Act, as amended. 7
25 Compensation for disability and death of
noncitizen Federal employees outside the
United States........................... 77
SUBCHAPTER C--ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM
ACT OF 2000
30 Claims for compensation under the Energy
Employees Occupational Illness
Compensation Program Act of 2000, as
amended................................. 85
SUBCHAPTERS D-E [RESERVED]
SUBCHAPTER F--COMPENSATION FOR INJURY, DISABILITY, DEATH, OR ENEMY
DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES
61 Claims for compensation under the War
Hazards Compensation Act, as amended.... 147
SUBCHAPTER G--COMPENSATION FOR INJURY, DISABILITY OR DEATH OF CIVILIAN
AMERICAN CITIZENS INCURRED WHILE DETAINED BY OR IN HIDING FROM THE
IMPERIAL JAPANESE GOVERNMENT
71 General provisions.......................... 157
[[Page 5]]
SUBCHAPTER A_ORGANIZATION AND PROCEDURES
PART 1_PERFORMANCE OF FUNCTIONS--Table of Contents
Sec.
1.1 Under what authority was the Office of Workers' Compensation
Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the past?
Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of
1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42
U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR,
2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155;
Employment Standards Order No. 2-74, 39 FR 34722.
Source: 71 FR 78533, Dec. 29, 2006 unless otherwise noted.
Sec. 1.1 Under what authority was the Office of Workers' Compensation Programs established?
The Assistant Secretary of Labor for Employment Standards, by
authority vested in him by the Secretary of Labor in Secretary's Order
No. 13-71 (36 FR 8755), established in the Employment Standards
Administration an Office of Workers' Compensation Programs (OWCP) by
Employment Standards Order No. 2-74 (39 FR 34722). The Assistant
Secretary subsequently designated as the head thereof a Director who,
under the general supervision of the Assistant Secretary, administers
the programs assigned to OWCP by the Assistant Secretary.
Sec. 1.2 What functions are assigned to OWCP?
The Assistant Secretary of Labor for Employment Standards has
delegated authority and assigned responsibility to the Director of OWCP
for the Department of Labor's programs under the following statutes:
(a) The Federal Employees' Compensation Act, as amended and extended
(5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains to the
Employees' Compensation Appeals Board.
(b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
(c) The War Claims Act (50 U.S.C. App. 2003).
(d) The Energy Employees Occupational Illness Compensation Program
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities,
pursuant to Executive Order 13179 (``Providing Compensation to America's
Nuclear Weapons Workers'') of December 7, 2000, assigned to the
Secretary of Health and Human Services, the Secretary of Energy and the
Attorney General.
(e) The Longshore and Harbor Workers' Compensation Act, as amended
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with
respect to administrative law judges in the Office of Administrative Law
Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board;
and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant
Secretary of Labor for Occupational Safety and Health.
(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et seq.).
Sec. 1.3 What rules are contained in this chapter?
The rules in this chapter are those governing the OWCP functions
under the Federal Employees' Compensation Act, the War Hazards
Compensation Act, the War Claims Act and the Energy Employees
Occupational Illness Compensation Program Act of 2000.
Sec. 1.4 Where are other rules concerning OWCP functions found?
(a) The rules of the OWCP governing its functions under the
Longshore and Harbor Workers' Compensation Act and its extensions are
set forth in subchapter A of chapter VI of this title.
(b) The rules of the OWCP governing its functions under the Black
Lung Benefits Act program are set forth in subchapter B of chapter VI of
this title.
(c) The rules and regulations of the Employees' Compensation Appeals
Board are set forth in chapter IV of this title.
[[Page 6]]
(d) The rules and regulations of the Benefits Review Board are set
forth in Chapter VII of this title.
Sec. 1.5 When was the former Bureau of Employees' Compensation abolished?
By Secretary of Labor's Order issued September 23, 1974 (39 FR
34723), issued concurrently with Employment Standards Order 2-74 (39 FR
34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32
FR 12979), which had delegated authority and assigned responsibility for
the various workers' compensation programs enumerated in Sec. 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.
Sec. 1.6 How were many of OWCP's current functions administered in the past?
(a) Administration of the Federal Employees' Compensation Act and
the Longshore and Harbor Workers' Compensation Act was initially vested
in an independent establishment known as the U.S. Employees'
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR,
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the
Commission was abolished and its functions were transferred to the
Federal Security Agency to be performed by a newly created Bureau of
Employees' Compensation within such Agency. By Reorganization Plan No.
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat.
1271), said Bureau was transferred to the Department of Labor (DOL), and
the authority formerly vested in the Administrator, Federal Security
Agency, was vested in the Secretary of Labor. By Reorganization Plan No.
6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat.
1263), the Secretary of Labor was authorized to make from time to time
such provisions as he shall deem appropriate, authorizing the
performance of any of his functions by any other officer, agency, or
employee of the DOL.
(b) In 1972, two separate organizational units were established
within the Bureau: an Office of Workmen's Compensation Programs (37 FR
20533) and an Office of Federal Employees' Compensation (37 FR 22979).
In 1974, these two units were abolished and one organizational unit, the
Office of Workers' Compensation Programs, was established in lieu of the
Bureau of Employees' Compensation (39 FR 34722).
[[Page 7]]
SUBCHAPTER B_FEDERAL EMPLOYEES' COMPENSATION ACT
PART 10_CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED--Table of Contents
Subpart A_General Provisions
Introduction
Sec.
10.0 What are the provisions of the FECA, in general?
10.1 What rules govern the administration of the FECA and this chapter?
10.2 What do these regulations contain?
10.3 Have the collection of information requirements of this part been
approved by the Office of Management and Budget (OMB)?
Definitions and Forms
10.5 What definitions apply to these regulations?
10.6 What special statutory definitions apply to dependents and
survivors?
10.7 What forms are needed to process claims under the FECA?
Information in Program Records
10.10 Are all documents relating to claims filed under the FECA
considered confidential?
10.11 Who maintains custody and control of FECA records?
10.12 How may a FECA claimant or beneficiary obtain copies of protected
records?
10.13 What process is used by a person who wants to correct FECA-related
documents?
Rights and Penalties
10.15 May compensation rights be waived?
10.16 What criminal penalties may be imposed in connection with a claim
under the FECA?
10.17 Is a beneficiary who defrauds the Government in connection with a
claim for benefits still entitled to those benefits?
10.18 Can a beneficiary who is incarcerated based on a felony conviction
still receive benefits?
Subpart B_Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease and Death--Employee or Survivor's
Actions
10.100 How and when is a notice of traumatic injury filed?
10.101 How and when is a notice of occupational disease filed?
10.102 How and when is a claim for wage loss compensation filed?
10.103 How and when is a claim for permanent impairment filed?
10.104 How and when is a claim for recurrence filed?
10.105 How and when is a notice of death and claim for benefits filed?
Notices and Claims for Injury, Disease and Death--Employer's Actions
10.110 What should the employer do when an employee files a notice of
traumatic injury or occupational disease?
10.111 What should the employer do when an employee files an initial
claim for compensation due to disability or permanent
impairment?
10.112 What should the employer do when an employee files a claim for
continuing compensation due to disability?
10.113 What should the employer do when an employee dies from a work-
related injury or disease?
Evidence and Burden of Proof
10.115 What evidence is needed to establish a claim?
10.116 What additional evidence is needed in cases based on occupational
disease?
10.117 What happens if, in any claim, the employer contests any of the
facts as stated by the claimant?
10.118 Does the employer participate in the claims process in any other
way?
10.119 What action will OWCP take with respect to information submitted
by the employer?
10.120 May a claimant submit additional evidence?
10.121 What happens if OWCP needs more evidence from the claimant?
Decisions on Entitlement to Benefits
10.125 How does OWCP determine entitlement to benefits?
10.126 What does the decision contain?
10.127 To whom is the decision sent?
[[Page 8]]
Subpart C_Continuation of Pay
10.200 What is continuation of pay?
Eligibility for COP
10.205 What conditions must be met to receive COP?
10.206 May an employee who uses leave after an injury later decide to
use COP instead?
10.207 May an employee who returns to work, then stops work again due to
the effects of the injury, receive COP?
Responsibilities
10.210 What are the employee's responsibilities in COP cases?
10.211 What are the employer's responsibilities in COP cases?
Calculation of COP
10.215 How does OWCP compute the number of days of COP used?
10.216 How is the pay rate for COP calculated?
10.217 Is COP charged if the employee continues to work, but in a
different job that pays less?
Controversion and Termination of COP
10.220 When is an employer not required to pay COP?
10.221 How is a claim for COP controverted?
10.222 When may an employer terminate COP which has already begun?
10.223 Are there other circumstances under which OWCP will not authorize
payment of COP?
10.224 What happens if OWCP finds that the employee is not entitled to
COP after it has been paid?
Subpart D_Medical and Related Benefits
Emergency Medical Care
10.300 What are the basic rules for authorizing emergency medical care?
10.301 May the physician designated on Form CA-16 refer the employee to
another medical specialist or medical facility?
10.302 Should the employer authorize medical care if he or she doubts
that the injury occurred, or that it is work-related?
10.303 Should the employer use a Form CA-16 to authorize medical testing
when an employee is exposed to a workplace hazard just once?
10.304 Are there any exceptions to these procedures for obtaining
emergency medical care?
Medical Treatment and Related Issues
10.310 What are the basic rules for obtaining medical care?
10.311 What are the special rules for the services of chiropractors?
10.312 What are the special rules for the services of clinical
psychologists?
10.313 Will OWCP pay for preventive treatment?
10.314 Will OWCP pay for the services of an attendant?
10.315 Will OWCP pay for transportation to obtain medical treatment?
10.316 After selecting a treating physician, may an employee choose to
be treated by another physician instead?
Directed Medical Examinations
10.320 Can OWCP require an employee to be examined by another physician?
10.321 What happens if the opinion of the physician selected by OWCP
differs from the opinion of the physician selected by the
employee?
10.322 Who pays for second opinion and referee examinations?
10.323 What are the penalties for failing to report for or obstructing a
second opinion or referee examination?
10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
Medical Reports
10.330 What are the requirements for medical reports?
10.331 How and when should the medical report be submitted?
10.332 What additional medical information will OWCP require to support
continuing payment of benefits?
10.333 What additional medical information will OWCP require to support
a claim for a schedule award?
Medical Bills
10.335 How are medical bills submitted?
10.336 What are the time frames for submitting bills?
10.337 If OWCP reimburses an employee only partially for a medical
expense, must the provider refund the balance of the amount
paid to the employee?
Subpart E_Compensation and Related Benefits
Compensation for Disability and Impairment
10.400 What is total disability?
10.401 When and how is compensation for total disability paid?
10.402 What is partial disability?
10.403 When and how is compensation for partial disability paid?
10.404 When and how is compensation for a schedule impairment paid?
[[Page 9]]
10.405 Who is considered a dependent in a claim based on disability or
impairment?
10.406 What are the maximum and minimum rates of compensation in
disability cases?
Compensation for Death
10.410 Who is entitled to compensation in case of death, and what are
the rates of compensation payable in death cases?
10.411 What are the maximum and minimum rates of compensation in death
cases?
10.412 Will OWCP pay the costs of burial and transportation of the
remains?
10.413 If a person dies while receiving a schedule award, to whom is the
balance of the schedule award payable?
10.414 What reports of dependents are needed in death cases?
10.415 What must a beneficiary do if the number of beneficiaries
decreases?
10.416 How does a change in the number of beneficiaries affect the
amount of compensation paid to the other beneficiaries?
10.417 What reports are needed when compensation payments continue for
children over age 18?
Adjustments to Compensation
10.420 How are cost-of-living adjustments applied?
10.421 May a beneficiary receive other kinds of payments from the
Federal Government concurrently with compensation?
10.422 May compensation payments be issued in a lump sum?
10.423 May compensation payments be assigned to, or attached by,
creditors?
10.424 May someone other than the beneficiary be designated to receive
compensation payments?
10.425 May compensation be claimed for periods of restorable leave?
Overpayments
10.430 How does OWCP notify an individual of a payment made?
10.431 What does OWCP do when an overpayment is identified?
10.432 How can an individual present evidence to OWCP in response to a
preliminary notice of an overpayment?
10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
10.434 If OWCP finds that the recipient of an overpayment was not at
fault, what criteria are used to decide whether to waive
recovery of it?
10.435 Is an individual responsible for an overpayment that resulted
from an error made by OWCP or another Government agency?
10.436 Under what circumstances would recovery of an overpayment defeat
the purpose of the FECA?
10.437 Under what circumstances would recovery of an overpayment be
against equity and good conscience?
10.438 Can OWCP require the individual who received the overpayment to
submit additional financial information?
10.439 What is addressed at a pre-recoupment hearing?
10.440 How does OWCP communicate its final decision concerning recovery
of an overpayment, and what appeal right accompanies it?
10.441 How are overpayments collected?
Subpart F_Continuing Benefits
Rules and Evidence
10.500 What are the basic rules for continuing receipt of compensation
benefits and return to work?
10.501 What medical evidence is necessary to support continuing receipt
of compensation benefits?
10.502 How does OWCP evaluate evidence in support of continuing receipt
of compensation benefits?
10.503 Under what circumstances may OWCP reduce or terminate
compensation benefits?
Return to Work--Employer's Responsibilities
10.505 What actions must the employer take?
10.506 May the employer monitor the employee's medical care?
10.507 How should the employer make an offer of suitable work?
10.508 May relocation expenses be paid for an employee who would need to
move to accept an offer of reemployment?
10.509 If an employee's light-duty job is eliminated due to downsizing,
what is the effect on compensation?
Return to Work--Employee's Responsibilities
10.515 What actions must the employee take with respect to returning to
work?
10.516 How will an employee know if OWCP considers a job to be suitable?
10.517 What are the penalties for refusing to accept a suitable job
offer?
10.518 Does OWCP provide services to help employees return to work?
10.519 What action will OWCP take if an employee refuses to undergo
vocational rehabilitation?
10.520 How does OWCP determine compensation after an employee completes
a vocational rehabilitation program?
Reports of Earnings From Employment and Self-Employment
10.525 What information must the employee report?
[[Page 10]]
10.526 Must the employee report volunteer activities?
10.527 Does OWCP verify reports of earnings?
10.528 What action will OWCP take if the employee fails to file a report
of activity indicating an ability to work?
10.529 What action will OWCP take if the employee files an incomplete
report?
Reports of Dependents
10.535 How are dependents defined, and what information must the
employee report?
10.536 What is the penalty for failing to submit a report of dependents?
10.537 What reports are needed when compensation payments continue for
children over age 18?
Reduction and Termination of Compensation
10.540 When and how is compensation reduced or terminated?
10.541 What action will OWCP take after issuing written notice of its
intention to reduce or terminate compensation?
Subpart G_Appeals Process
10.600 How can final decisions of OWCP be reviewed?
Reconsiderations and Reviews by the Director
10.605 What is reconsideration?
10.606 How does a claimant request reconsideration?
10.607 What is the time limit for requesting reconsideration?
10.608 How does OWCP decide whether to grant or deny the request for
reconsideration?
10.609 How does OWCP decide whether new evidence requires modification
of the prior decision?
10.610 What is a review by the Director?
Hearings
10.615 What is a hearing?
10.616 How does a claimant obtain a hearing?
10.617 How is an oral hearing conducted?
10.618 How is a review of the written record conducted?
10.619 May subpoenas be issued for witnesses and documents?
10.62 Who pays the costs associated with subpoenas?
10.621 What is the employer's role when an oral hearing has been
requested?
10.622 May a claimant withdraw a request for or postpone a hearing?
Reviews by the Employees' Compensation Appeals Board (ECAB)
10.625 What kinds of decisions may be appealed?
10.626 Who has jurisdiction of cases on appeal to the ECAB?
Subpart H_Special Provisions
Representation
10.70 May a claimant designate a representative?
10.701 Who may serve as a representative?
10.702 How are fees for services paid?
10.703 How are fee applications approved?
Third Party Liability
10.705 When must an employee or other FECA beneficiary take action
against a third party?
10.706 How will a beneficiary know if OWCP or SOL has determined that
action against a third party is required?
10.707 What must a FECA beneficiary who is required to take action
against a third party do to satisfy the requirement that the
claim be ``prosecuted''?
10.708 Can a FECA beneficiary who refuses to comply with a request to
assign a claim to the United States or to prosecute the claim
in his or her own name be penalized?
10.709 What happens if a beneficiary directed by OWCP or SOL to take
action against a third party does not believe that a claim can
be successfully prosecuted at a reasonable cost?
10.71 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which
benefits are payable under the FECA be reported to OWCP or
SOL?
10.711 How much of any settlement or judgment must be paid to the United
States?
10.712 What amounts are included in the gross recovery?
10.713 How is a structured settlement (that is, a settlement providing
for receipt of funds over a specified period of time) treated
for purposes of reporting the gross recovery?
10.714 What amounts are included in the refundable disbursements?
10.715 Is a beneficiary required to pay interest on the amount of the
refund due to the United States?
10.716 If the required refund is not paid within 30 days of the request
for repayment, can it be collected from payments due under the
FECA?
10.717 Is a settlement or judgment received as a result of allegations
of medical malpractice in treating an injury covered by the
FECA a gross recovery that must be reported to OWCP or SOL?
[[Page 11]]
10.718 Are payments to a beneficiary as a result of an insurance policy
which the beneficiary has purchased a gross recovery that must
be reported to OWCP or SOL?
10.719 If a settlement or judgment is received for more than one wound
or medical condition, can the refundable disbursements paid on
a single FECA claim be attributed to different conditions for
purposes of calculating the refund or credit owed to the
United States?
Federal Grand and Petit Jurors
10.725 When is a Federal grand or petit juror covered under the FECA?
10.726 When does a juror's entitlement to disability compensation begin?
10.727 What is the pay rate of jurors for compensation purposes?
Peace Corps Volunteers
10.73 What are the conditions of coverage for Peace Corps volunteers and
volunteer leaders injured while serving outside the United
States?
10.731 What is the pay rate of Peace Corps volunteers and volunteer
leaders for compensation purposes?
Non-Federal Law Enforcement Officers
10.735 When is a non-Federal law enforcement officer (LEO) covered under
the FECA?
10.736 What are the time limits for filing a LEO claim?
10.737 How is a LEO claim filed, and who can file a LEO claim?
10.738 Under what circumstances are benefits payable in LEO claims?
10.739 What kind of objective evidence of a potential Federal crime must
exist for coverage to be extended?
10.740 In what situations will OWCP automatically presume that a law
enforcement officer is covered by the FECA?
10.741 How are benefits calculated in LEO claims?
Subpart I_Information for Medical Providers
Medical Records and Bills
10.800 What kind of medical records must providers keep?
10.801 How are medical bills to be submitted?
10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss
of wages, and incidental expenses?
10.803 What are the time limitations on OWCP's payment of bills?
Medical Fee Schedule
10.805 What services are covered by the OWCP fee schedule?
10.806 How are the maximum fees defined?
10.807 How are payments for particular services calculated?
10.808 Does the fee schedule apply to every kind of procedure?
10.809 How are payments for medicinal drugs determined?
10.810 How are payments for inpatient medical services determined?
10.811 When and how are fees reduced?
10.812 If OWCP reduces a fee, may a provider request reconsideration of
the reduction?
10.813 If OWCP reduces a fee, may a provider bill the claimant for the
balance?
Exclusion of Providers
10.815 What are the grounds for excluding a provider from payment under
the FECA?
10.816 What will cause OWCP to automatically exclude a physician or
other provider of medical services and supplies?
10.817 When are OWCP's exclusion procedures initiated?
10.818 How is a provider notified of OWCP's intent to exclude him or
her?
10.819 What requirements must the provider's reply and OWCP's decision
meet?
10.820 How can an excluded provider request a hearing?
10.821 How are hearings assigned and scheduled?
10.822 How are subpoenas or advisory opinions obtained?
10.823 How will the administrative law judge conduct the hearing and
issue the recommended decision?
10.824 How can a party request review by the Director of the
administrative law judge's recommended decision?
10.825 What are the effects of exclusion?
10.826 How can an excluded provider be reinstated?
Subpart J_Death Gratuity
10.900 What is the death gratuity under this subpart?
10.901 Which employees are covered under this subpart?
10.902 Does every employee's death due to injuries incurred in
connection with his or her service with an Armed Force in a
contingency operation qualify for the death gratuity?
10.903 Is the death gratuity payment applicable retroactively?
10.904 Does a death as a result of occupational disease qualify for
payment of the death gratuity?
10.905 If an employee incurs a covered injury in connection with his or
her service with an Armed Force in a contingency
[[Page 12]]
operation but does not die of the injury until years later,
does the death qualify for payment of the death gratuity?
10.906 What special statutory definitions apply to survivors under this
subpart?
10.907 What order of precedence will OWCP use to determine which
survivors are entitled to receive the death gratuity payment
under this subpart?
10.908 Can an employee designate alternate beneficiaries to receive a
portion of the death gratuity payment?
10.909 How does an employee designate a variation in the order or
percentage of gratuity payable to survivors and how does the
employee designate alternate beneficiaries?
10.910 What if a person entitled to a portion of the death gratuity
payment dies after the death of the covered employee but
before receiving his or her portion of the death gratuity?
10.911 How is the death gratuity payment process initiated?
10.912 What is required to establish a claim for the death gratuity
payment?
10.913 In what situations will OWCP consider that an employee incurred
injury in connection with his or her service with an Armed
Force in a contingency operation?
10.914 What are the responsibilities of the employing agency in the
death gratuity payment process?
10.915 What are the responsibilities of OWCP in the death gratuity
payment process?
10.916 How is the amount of the death gratuity calculated?
Authority: 5 U.S.C. 301, 8103, 8145 and 8149; 31 U.S.C. 3716 and
3717; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263;
Secretary's Order 5-96, 62 FR 107.
Source: 63 FR 65306, Nov. 25, 1998, unless otherwise noted.
Subpart A_General Provisions
Introduction
Sec. 10.0 What are the provisions of the FECA, in general?
The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C.
8101 et seq.) provides for the payment of workers' compensation benefits
to civilian officers and employees of all branches of the Government of
the United States. The regulations in this part describe the rules for
filing, processing, and paying claims for benefits under the FECA.
Proceedings under the FECA are non-adversarial in nature.
(a) The FECA has been amended and extended a number of times to
provide workers' compensation benefits to volunteers in the Civil Air
Patrol (5 U.S.C. 8141), members of the Reserve Officers' Training Corps
(5 U.S.C. 8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps
enrollees and Volunteers in Service to America (5 U.S.C. 8143), members
of the National Teachers Corps (5 U.S.C. 8143a), certain student
employees (5 U.S.C. 5351 and 8144), certain law enforcement officers not
employed by the United States (5 U.S.C. 8191-8193), and various other
classes of persons who provide or have provided services to the
Government of the United States.
(b) The FECA provides for payment of several types of benefits,
including compensation for wage loss, schedule awards, medical and
related benefits, and vocational rehabilitation services for conditions
resulting from injuries sustained in performance of duty while in
service to the United States.
(c) The FECA also provides for payment of monetary compensation to
specified survivors of an employee whose death resulted from a work-
related injury and for payment of certain burial expenses subject to the
provisions of 5 U.S.C. 8134.
(d) All types of benefits and conditions of eligibility listed in
this section are subject to the provisions of the FECA and of this part.
This section shall not be construed to modify or enlarge upon the
provisions of the FECA.
Sec. 10.1 What rules govern the administration of the FECA and this chapter?
In accordance with 5 U.S.C. 8145 and Secretary's Order 5-96, the
responsibility for administering the FECA, except for 5 U.S.C. 8149 as
it pertains to the Employees' Compensation Appeals Board, has been
delegated to the Assistant Secretary for Employment Standards. The
Assistant Secretary, in turn, has delegated the authority and
responsibility for administering the FECA to the Director of the Office
of Workers' Compensation Programs (OWCP). Except as otherwise provided
by law, the Director, OWCP and his or
[[Page 13]]
her designees have the exclusive authority to administer, interpret and
enforce the provisions of the Act.
Sec. 10.2 What do these regulations contain?
This part 10 sets forth the regulations governing administration of
all claims filed under the FECA, except to the extent specified in
certain particular provisions. Its provisions are intended to assist
persons seeking compensation benefits under the FECA, as well as
personnel in the various Federal agencies and the Department of Labor
who process claims filed under the FECA or who perform administrative
functions with respect to the FECA. This part 10 applies to part 25 of
this chapter except as modified by part 25. The various subparts of this
part contain the following:
(a) Subpart A. The general statutory and administrative framework
for processing claims under the FECA. It contains a statement of purpose
and scope, together with definitions of terms, descriptions of basic
forms, information about the disclosure of OWCP records, and a
description of rights and penalties under the FECA, including
convictions for fraud.
(b) Subpart B. The rules for filing notices of injury and claims for
benefits under the FECA. It also addresses evidence and burden of proof,
as well as the process of making decisions concerning eligibility for
benefits.
(c) Subpart C. The rules governing claims for and payment of
continuation of pay.
(d) Subpart D. The rules governing emergency and routine medical
care, second opinion and referee medical examinations directed by OWCP,
and medical reports and records in general. It also addresses the kinds
of treatment which may be authorized and how medical bills are paid.
(e) Subpart E. The rules relating to the payment of monetary
compensation benefits for disability, impairment and death. It includes
the provisions for identifying and processing overpayments of
compensation.
(f) Subpart F. The rules governing the payment of continuing
compensation benefits. It includes provisions concerning the employee's
and the employer's responsibilities in returning the employee to work.
It also contains provisions governing reports of earnings and
dependents, recurrences, and reduction and termination of compensation
benefits.
(g) Subpart G. The rules governing the appeals of decisions under
the FECA. It includes provisions relating to hearings, reconsiderations,
and appeals before the Employees' Compensation Appeals Board.
(h) Subpart H. The rules concerning legal representation and for
adjustment and recovery from a third party. It also contains provisions
relevant to three groups of employees whose status requires special
application of the provisions of the FECA: Federal grand and petit
jurors, Peace Corps volunteers, and non-Federal law enforcement
officers.
(i) Subpart I. Information for medical providers. It includes rules
for medical reports, medical bills, and the OWCP medical fee schedule,
as well as the provisions for exclusion of medical providers.
Sec. 10.3 Have the collection of information requirements of this part been approved by the Office of Management and Budget (OMB)?
The collection of information requirements in this part have been
approved by OMB and assigned OMB control numbers 1215-0055, 1215-0067,
1215-0078, 1215-0103, 1215-0105, 1215-0115, 1215-0116, 1215-0144, 1215-
0151, 1215-0154, 1215-0155, 1215-0161, 1215-0167, 1215-0176, 1215-0178,
1215-0182, 1215-0193 and 1215-0194.
Definitions and Forms
Sec. 10.5 What definitions apply to these regulations?
Certain words and phrases found in this part are defined in this
section or in the FECA. Some other words and phrases that are used only
in limited situations are defined in the later subparts of these
regulations.
(a) Benefits or Compensation means the money OWCP pays to or on
behalf of a beneficiary from the Employees' Compensation Fund for lost
wages, a loss of wage-earning capacity or a permanent physical
impairment, as well as the money paid to beneficiaries for an employee's
death. These two terms
[[Page 14]]
also include any other amounts paid out of the Employees' Compensation
Fund for such things as medical treatment, medical examinations
conducted at the request of OWCP as part of the claims adjudication
process, vocational rehabilitation services, services of an attendant
and funeral expenses, but does not include continuation of pay.
(b) Beneficiary means an individual who is entitled to a benefit
under the FECA and this part.
(c) Claim means a written assertion of an individual's entitlement
to benefits under the FECA, submitted in a manner authorized by this
part.
(d) Claimant means an individual whose claim has been filed.
(e) Director means the Director of OWCP or a person designated to
carry out his or her functions.
(f) Disability means the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.
(g) Earnings from employment or self-employment means:
(1) Gross earnings or wages before any deductions and includes the
value of subsistence, quarters, reimbursed expenses and any other goods
or services received in kind as remuneration; or
(2) A reasonable estimate of the cost to have someone else perform
the duties of an individual who accepts no remuneration. Neither lack of
profits, nor the characterization of the duties as a hobby, removes an
unremunerated individual's responsibility to report the estimated cost
to have someone else perform his or her duties.
(h) Employee means, but is not limited to, an individual who fits
within one of the following listed groups:
(1) A civil officer or employee in any branch of the Government of
the United States, including an officer or employee of an
instrumentality wholly owned by the United States;
(2) An individual rendering personal service to the United States
similar to the service of a civil officer or employee of the United
States, without pay or for nominal pay, when a statute authorizes the
acceptance or use of the service, or authorizes payment of travel or
other expenses of the individual;
(3) An individual, other than an independent contractor or an
individual employed by an independent contractor, employed on the
Menominee Indian Reservation in Wisconsin in operations conducted under
a statute relating to tribal timber and logging operations on that
reservation;
(4) An individual appointed to a position on the office staff of a
former President; or
(5) An individual selected and serving as a Federal petit or grand
juror.
(i) Employer or Agency means any civil agency or instrumentality of
the United States Government, or any other organization, group or
institution employing an individual defined as an ``employee'' by this
section. These terms also refer to officers and employees of an employer
having responsibility for the supervision, direction or control of
employees of that employer as an ``immediate superior,'' and to other
employees designated by the employer to carry out the functions vested
in the employer under the FECA and this part, including officers or
employees delegated responsibility by an employer for authorizing
medical treatment for injured employees.
(j) Entitlement means entitlement to benefits as determined by OWCP
under the FECA and the procedures described in this part.
(k) FECA means the Federal Employees' Compensation Act, as amended.
(l) Hospital services means services and supplies provided by
hospitals within the scope of their practice as defined by State law.
(m) Impairment means any anatomic or functional abnormality or loss.
A permanent impairment is any such abnormality or loss after maximum
medical improvement has been achieved.
(n) Knowingly means with knowledge, consciously, willfully or
intentionally.
(o) Medical services means services and supplies provided by or
under the supervision of a physician. Reimbursable chiropractic services
are limited to physical examinations (and related laboratory tests), x-
rays performed to diagnose a subluxation of the spine and treatment
consisting of manual manipulation of the spine to correct a subluxation.
[[Page 15]]
(p) Medical support services means services, drugs, supplies and
appliances provided by a person other than a physician or hospital.
(q) Occupational disease or Illness means a condition produced by
the work environment over a period longer than a single workday or
shift.
(r) OWCP means the Office of Workers' Compensation Programs.
(s) Pay rate for compensation purposes means the employee's pay, as
determined under 5 U.S.C. 8114, at the time of injury, the time
disability begins or the time compensable disability recurs if the
recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever
is greater, except as otherwise determined under 5 U.S.C. 8113 with
respect to any period.
(t) Physician means an individual defined as such in 5 U.S.C.
8101(2), except during the period for which his or her license to
practice medicine has been suspended or revoked by a State licensing or
regulatory authority.
(u) Qualified hospital means any hospital licensed as such under
State law which has not been excluded under the provisions of subpart I
of this part. Except as otherwise provided by regulation, a qualified
hospital shall be deemed to be designated or approved by OWCP.
(v) Qualified physician means any physician who has not been
excluded under the provisions of subpart I of this part. Except as
otherwise provided by regulation, a qualified physician shall be deemed
to be designated or approved by OWCP.
(w) Qualified provider of medical support services or supplies means
any person, other than a physician or a hospital, who provides services,
drugs, supplies and appliances for which OWCP makes payment, who
possesses any applicable licenses required under State law, and who has
not been excluded under the provisions of subpart I of this part.
(x) Recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that
takes place when a light-duty assignment made specifically to
accommodate an employee's physical limitations due to his or her work-
related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, non-performance of job duties or a
reduction-in-force), or when the physical requirements of such an
assignment are altered so that they exceed his or her established
physical limitations.
(y) Recurrence of medical condition means a documented need for
further medical treatment after release from treatment for the accepted
condition or injury when there is no accompanying work stoppage.
Continuous treatment for the original condition or injury is not
considered a ``need for further medical treatment after release from
treatment,'' nor is an examination without treatment.
(z) Representative means an individual properly authorized by a
claimant in writing to act for the claimant in connection with a claim
or proceeding under the FECA or this part.
(aa) Student means an individual defined at 5 U.S.C. 8101(17). Two
terms used in that particular definition are further defined as follows:
(1) Additional type of educational or training institution means a
technical, trade, vocational, business or professional school accredited
or licensed by the United States Government or a State Government or any
political subdivision thereof providing courses of not less than three
months duration, that prepares the individual for a livelihood in a
trade, industry, vocation or profession.
(2) Year beyond the high school level means:
(i) The 12-month period beginning the month after the individual
graduates from high school, provided he or she had indicated an
intention to continue schooling within four months of high school
graduation, and each successive 12-month period in which there is school
attendance or the payment of compensation based on such attendance; or
[[Page 16]]
(ii) If the individual has indicated that he or she will not
continue schooling within four months of high school graduation, the 12-
month period beginning with the month that the individual enters school
to continue his or her education, and each successive 12-month period in
which there is school attendance or the payment of compensation based on
such attendance.
(bb) Subluxation means an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must
be demonstrable on any x-ray film to an individual trained in the
reading of x-rays.
(cc) Surviving spouse means the husband or wife living with or
dependent for support upon a deceased employee at the time of his or her
death, or living apart for reasonable cause or because of the deceased
employee's desertion.
(dd) Temporary aggravation of a pre-existing condition means that
factors of employment have directly caused that condition to be more
severe for a limited period of time and have left no greater impairment
than existed prior to the employment injury.
(ee) Traumatic injury means a condition of the body caused by a
specific event or incident, or series of events or incidents, within a
single workday or shift. Such condition must be caused by external
force, including stress or strain, which is identifiable as to time and
place of occurrence and member or function of the body affected.
Sec. 10.6 What special statutory definitions apply to dependents and survivors?
(a) 5 U.S.C. 8133 provides that certain benefits are payable to
certain enumerated survivors of employees who have died from an injury
sustained in the performance of duty.
(b) 5 U.S.C. 8148 also provides that certain other benefits may be
payable to certain family members of employees who have been
incarcerated due to a felony conviction.
(c) 5 U.S.C. 8110(b) further provides that any employee who is found
to be eligible for a basic benefit shall be entitled to have such basic
benefit augmented at a specified rate for certain persons who live in
the beneficiary's household or who are dependent upon the beneficiary
for support.
(d) 5 U.S.C. 8101, 8110, 8133 and 8148, which define the nature of
such survivorship or dependency necessary to qualify a beneficiary for a
survivor's benefit or an augmented benefit, apply to the provisions of
this part.
Sec. 10.7 What forms are needed to process claims under the FECA?
(a) Notice of injury, claims and certain specified reports shall be
made on forms prescribed by OWCP. Employers shall not modify these forms
or use substitute forms. Employers are expected to maintain an adequate
supply of the basic forms needed for the proper recording and reporting
of injuries.
------------------------------------------------------------------------
Form No. Title
------------------------------------------------------------------------
(1) CA-1.................................. Federal Employee's Notice of
Traumatic Injury and Claim
for Continuation of Pay/
Compensation
(2) CA-2.................................. Notice of Occupational
Disease and Claim for
Compensation
(3) CA-2a................................. Notice of Employee's
Recurrence of Disability
and Claim for Pay/
Compensation
(4) CA-5.................................. Claim for Compensation by
Widow, Widower and/or
Children
(5) CA-5b................................. Claim for Compensation by
Parents, Brothers, Sisters,
Grandparents, or
Grandchildren
(6) CA-6.................................. Official Superior's Report
of Employee's Death
(7) CA-7.................................. Claim for Compensation Due
to Traumatic Injury or
Occupational Disease
(8) CA-7a................................. Time Analysis Form
(9) CA-7b................................. Leave Buy Back (LBB)
Worksheet/Certification and
Election
(10) CA-16................................ Authorization of Examination
and/or Treatment
(11) CA-17................................ Duty Status Report
(12) CA-20................................ Attending Physician's Report
------------------------------------------------------------------------
(b) Copies of the forms listed in this paragraph are available for
public inspection at the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor,
Washington, DC 20210. They may also be obtained from district offices,
employers (i.e., safety and health offices, supervisors), and the
Internet, at www.dol.gov./dol/esa/owcp.htm.
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
[[Page 17]]
Information in Program Records
Sec. 10.10 Are all documents relating to claims filed under the FECA considered confidential?
All records relating to claims for benefits, including copies of
such records maintained by an employer, are considered confidential and
may not be released, inspected, copied or otherwise disclosed except as
provided in the Freedom of Information Act and the Privacy Act of 1974.
Sec. 10.11 Who maintains custody and control of FECA records?
All records relating to claims for benefits filed under the FECA,
including any copies of such records maintained by an employing agency,
are covered by the government-wide Privacy Act system of records
entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal
Employees' Compensation Act File). This system of records is maintained
by and under the control of OWCP, and, as such, all records covered by
DOL/GOVT-1 are official records of OWCP. The protection, release,
inspection and copying of records covered by DOL/GOVT-1 shall be
accomplished in accordance with the rules, guidelines and provisions of
this part, as well as those contained in 29 CFR parts 70 and 71, and
with the notice of the system of records and routine uses published in
the Federal Register. All questions relating to access/disclosure, and/
or amendment of FECA records maintained by OWCP or the employing agency,
are to be resolved in accordance with this section.
Sec. 10.12 How may a FECA claimant or beneficiary obtain copies of protected records?
(a) A claimant seeking copies of his or her official FECA file
should address a request to the District Director of the OWCP office
having custody of the file. A claimant seeking copies of FECA-related
documents in the custody of the employer should follow the procedures
established by that agency.
(b)(1) While an employing agency may establish procedures that an
injured employee or beneficiary should follow in requesting access to
documents it maintains, any decision issued in response to such a
request must comply with the rules and regulations of the Department of
Labor which govern all other aspects of safeguarding these records.
(2) No employing agency has the authority to issue determinations
with respect to requests for the correction or amendment of records
contained in or covered by DOL/GOVT-1. That authority is within the
exclusive control of OWCP. Thus, any request for correction or amendment
received by an employing agency must be referred to OWCP for review and
decision.
(3) Any administrative appeal taken from a denial issued by the
employing agency or OWCP shall be filed with the Solicitor of Labor in
accordance with 29 CFR 71.7 and 71.9.
Sec. 10.13 What process is used by a person who wants to correct FECA-related documents?
Any request to amend a record covered by DOL/GOVT-1 should be
directed to the district office having custody of the official file. No
employer has the authority to issue determinations with regard to
requests for the correction of records contained in or covered by DOL/
GOVT-1. Any request for correction received by an employer must be
referred to OWCP for review and decision.
Rights and Penalties
Sec. 10.15 May compensation rights be waived?
No employer or other person may require an employee or other
claimant to enter into any agreement, either before or after an injury
or death, to waive his or her right to claim compensation under the
FECA. No waiver of compensation rights shall be valid.
Sec. 10.16 What criminal penalties may be imposed in connection with a claim under the FECA?
(a) A number of statutory provisions make it a crime to file a false
or fraudulent claim or statement with the Government in connection with
a claim under the FECA, or to wrongfully impede a FECA claim. Included
among these provisions are sections 287, 1001, 1920, and 1922 of title
18, United States
[[Page 18]]
Code. Enforcement of these and other criminal provisions that may apply
to claims under the FECA are within the jurisdiction of the Department
of Justice.
(b) In addition, administrative proceedings may be initiated under
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-12,
to impose civil penalties and assessments against persons who make,
submit, or present, or cause to be made, submitted or presented, false,
fictitious or fraudulent claims or written statements to OWCP in
connection with a claim under the FECA. The Department of Labor's
regulations implementing the PFRCA are found at 29 CFR part 22.
Sec. 10.17 Is a beneficiary who defrauds the Government in connection with a claim for benefits still entitled to those benefits?
When a beneficiary either pleads guilty to or is found guilty on
either Federal or State criminal charges of defrauding the Federal
Government in connection with a claim for benefits, the beneficiary's
entitlement to any further compensation benefits will terminate
effective the date either the guilty plea is accepted or a verdict of
guilty is returned after trial, for any injury occurring on or before
the date of such guilty plea or verdict. Termination of entitlement
under this section is not affected by any subsequent change in or
recurrence of the beneficiary's medical condition.
Sec. 10.18 Can a beneficiary who is incarcerated based on a felony conviction still receive benefits?
(a) Whenever a beneficiary is incarcerated in a State or Federal
jail, prison, penal institution or other correctional facility due to a
State or Federal felony conviction, he or she forfeits all rights to
compensation benefits during the period of incarceration. A
beneficiary's right to compensation benefits for the period of his or
her incarceration is not restored after such incarceration ends, even
though payment of compensation benefits may resume.
(b) If the beneficiary has eligible dependents, OWCP will pay
compensation to such dependents at a reduced rate during the period of
his or her incarceration, by applying the percentages of 5 U.S.C.
8133(a)(1) through (5) to the beneficiary's gross current entitlement
rather than to the beneficiary's monthly pay.
(c) If OWCP's decision on entitlement is pending when the period of
incarceration begins, and compensation is due for a period of time prior
to such incarceration, payment for that period will only be made to the
beneficiary following his or her release.
Subpart B_Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease, and Death--Employee or
Survivor's Actions
Sec. 10.100 How and when is a notice of traumatic injury filed?
(a) To claim benefits under the FECA, an employee who sustains a
work-related traumatic injury must give notice of the injury in writing
on Form CA-1, which may be obtained from the employer or from the
Internet at www.dol.gov./dol/esa/owcp.htm. The employee must forward
this notice to the employer. Another person, including the employer, may
give notice of injury on the employee's behalf. The person submitting a
notice shall include the Social Security Number (SSN) of the injured
employee.
(b) For injuries sustained on or after September 7, 1974, a notice
of injury must be filed within three years of the injury. (The form
contains the necessary words of claim.) The requirements for filing
notice are further described in 5 U.S.C. 8119. Also see Sec. 10.205
concerning time requirements for filing claims for continuation of pay.
(1) If the claim is not filed within three years, compensation may
still be allowed if notice of injury was given within 30 days or the
employer had actual knowledge of the injury or death within 30 days
after occurrence. This knowledge may consist of written records or
verbal notification. An entry into an employee's medical record may also
satisfy this requirement if it is sufficient to place the employer on
notice of a possible work-related injury or disease.
[[Page 19]]
(2) OWCP may excuse failure to comply with the three-year time
requirement because of truly exceptional circumstances (for example,
being held prisoner of war).
(3) The claimant may withdraw his or her claim (but not the notice
of injury) by so requesting in writing to OWCP at any time before OWCP
determines eligibility for benefits. Any continuation of pay (COP)
granted to an employee after a claim is withdrawn must be charged to
sick or annual leave, or considered an overpayment of pay consistent
with 5 U.S.C. 5584, at the employee's option.
(c) However, in cases of latent disability, the time for filing
claim does not begin to run until the employee has a compensable
disability and is aware, or reasonably should have been aware, of the
causal relationship between the disability and the employment (see 5
U.S.C. 8122(b)).
Sec. 10.101 How and when is a notice of occupational disease filed?
(a) To claim benefits under the FECA, an employee who has a disease
which he or she believes to be work-related must give notice of the
condition in writing on Form CA-2, which may be obtained from the
employer or from the Internet at www.dol.gov./dol/esa/owcp.htm. The
employee must forward this notice to the employer. Another person,
including the employer, may do so on the employee's behalf. The person
submitting a notice shall include the Social Security Number (SSN) of
the injured employee. The claimant may withdraw his or her claim (but
not the notice of occupational disease) by so requesting in writing to
OWCP at any time before OWCP determines eligibility for benefits.
(b) For occupational diseases sustained as a result of exposure to
injurious work factors that occurs on or after September 7, 1974, a
notice of occupational disease must be filed within three years of the
onset of the condition. (The form contains the necessary words of
claim.) The requirements for timely filing are described in Sec.
10.100(b)(1) through (3).
(c) However, in cases of latent disability, the time for filing
claim does not begin to run until the employee has a compensable
disability and is aware, or reasonably should have been aware, of the
causal relationship between the disability and the employment (see 5
U.S.C. 8122(b)).
Sec. 10.102 How and when is a claim for wage loss compensation filed?
(a) Form CA-7 is used to claim compensation for periods of
disability not covered by COP.
(1) An employee who is disabled with loss of pay for more than three
calendar days due to an injury, or someone acting on his or her behalf,
must file Form CA-7 before compensation can be paid.
(2) The employee shall complete the front of Form CA-7 and submit
the form to the employer for completion and transmission to OWCP. The
form should be completed as soon as possible, but no more than 14
calendar days after the date pay stops due to the injury or disease.
(3) The requirements for filing claims are further described in 5
U.S.C. 8121.
(b) Additional Forms CA-7 are used to claim compensation for
additional periods of disability after the first Form CA-7 is submitted
to OWCP.
(1) It is the employee's responsibility to submit Form CA-7. Without
receipt of such claim, OWCP has no knowledge of continuing wage loss.
Therefore, while disability continues, the employee should submit a
claim on Form CA-7 each two weeks until otherwise instructed by OWCP.
(2) The employee shall complete the front of Form CA-7 and submit
the form to the employer for completion and transmission to OWCP.
(3) The employee is responsible for submitting, or arranging for the
submittal of, medical evidence to OWCP which establishes both that
disability continues and that the disability is due to the work-related
injury. Form CA-20 is attached to Form CA-7 for this purpose.
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
Sec. 10.103 How and when is a claim for permanent impairment filed?
Form CA-7 is used to claim compensation for impairment to a body
[[Page 20]]
part covered under the schedule established by 5 U.S.C. 8107. If Form
CA-7 has already been filed to claim disability compensation, an
employee may file a claim for such impairment by sending a letter to
OWCP which specifies the nature of the benefit claimed.
Sec. 10.104 How and when is a claim for recurrence filed?
(a) A recurrence should be reported on Form CA-2a if it causes the
employee to lose time from work and incur a wage loss, or if the
employee experiences a renewed need for treatment after previously being
released from care. However, a notice of recurrence should not be filed
when a new injury, new occupational disease, or new event contributing
to an already-existing occupational disease has occurred. In these
instances, the employee should file Form CA-1 or CA-2.
(b) The employee has the burden of establishing by the weight of
reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury.
(1) The employee must include a detailed factual statement as
described on Form CA-2a. The employer may submit comments concerning the
employee's statement.
(2) The employee should arrange for the submittal of a detailed
medical report from the attending physician as described on Form CA-2a.
The employee should also submit, or arrange for the submittal of,
similar medical reports for any examination and/or treatment received
after returning to work following the original injury.
Sec. 10.105 How and when is a notice of death and claim for benefits filed?
(a) If an employee dies from a work-related traumatic injury or an
occupational disease, any survivor may file a claim for death benefits
using Form CA-5 or CA-5b, which may be obtained from the employer or
from the Internet at www.dol.gov./dol/esa/owcp.htm. The survivor must
provide this notice in writing and forward it to the employer. Another
person, including the employer, may do so on the survivor's behalf. The
survivor may also submit the completed Form CA-5 or CA-5b directly to
OWCP. The survivor shall disclose the SSNs of all survivors on whose
behalf claim for benefits is made in addition to the SSN of the deceased
employee. The survivor may withdraw his or her claim (but not the notice
of death) by so requesting in writing to OWCP at any time before OWCP
determines eligibility for benefits.
(b) For deaths that occur on or after September 7, 1974, a notice of
death must be filed within three years of the death. The form contains
the necessary words of claim. The requirements for timely filing are
described in Sec. 10.100(b)(1) through (3).
(c) However, in cases of death due to latent disability, the time
for filing the claim does not begin to run until the survivor is aware,
or reasonably should have been aware, of the causal relationship between
the death and the employment (see 5 U.S.C. 8122(b)).
(d) The filing of a notice of injury or occupational disease will
satisfy the time requirements for a death claim based on the same injury
or occupational disease. If an injured employee or someone acting on the
employee's behalf does not file a claim before the employee's death, the
right to claim compensation for disability other than medical expenses
ceases and does not survive.
(e) A survivor must be alive to receive any payment; there is no
vested right to such payment. A report as described in Sec. 10.414 of
this part must be filed once each year to support continuing payments of
compensation.
Notices and Claims for Injury, Disease, and Death--Employer's Actions
Sec. 10.110 What should the employer do when an employee files a notice of traumatic injury or occupational disease?
(a) The employer shall complete the agency portion of Form CA-1 (for
traumatic injury) or CA-2 (for occupational disease) no more than 10
working days after receipt of notice from the employee. The employer
shall also complete the Receipt of Notice and give it to the employee,
along with copies of both sides of Form CA-1 or Form CA-2.
(b) The employer must complete and transmit the form to OWCP within
10
[[Page 21]]
working days after receipt of notice from the employee if the injury or
disease will likely result in:
(1) A medical charge against OWCP;
(2) Disability for work beyond the day or shift of injury;
(3) The need for more than two appointments for medical examination
and/or treatment on separate days, leading to time loss from work;
(4) Future disability;
(5) Permanent impairment; or
(6) Continuation of pay pursuant to 5 U.S.C. 8118.
(c) The employer should not wait for submittal of supporting
evidence before sending the form to OWCP.
(d) If none of the conditions in paragraph (b) of this section
applies, the Form CA-1 or CA-2 shall be retained as a permanent record
in the Employee Medical Folder in accordance with the guidelines
established by the Office of Personnel Management.
Sec. 10.111 What should the employer do when an employee files an initial claim for compensation due to disability or permanent impairment?
(a) When an employee is disabled by a work-related injury and loses
pay for more than three calendar days, or has a permanent impairment or
serious disfigurement as described in 5 U.S.C. 8107, the employer shall
furnish the employee with Form CA-7 for the purpose of claiming
compensation.
(b) If the employee is receiving continuation of pay (COP), the
employer should give Form CA-7 to the employee by the 30th day of the
COP period and submit the form to OWCP by the 40th day of the COP
period. If the employee has not returned the form to the employer by the
40th day of the COP period, the employer should ask him or her to submit
it as soon as possible.
(c) Upon receipt of Form CA-7 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five working
days after receipt from the employee, the employer shall forward the
completed Form CA-7 and any accompanying medical report to OWCP.
Sec. 10.112 What should the employer do when an employee files a claim for continuing compensation due to disability?
(a) If the employee continues in a leave-without-pay status due to a
work-related injury after the period of compensation initially claimed
on Form CA-7, the employer shall furnish the employee with another Form
CA-7 for the purpose of claiming continuing compensation.
(b) Upon receipt of Form CA-7 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five working
days after receipt from the employee, the employer shall forward the
completed Form CA-7 and any accompanying medical report to OWCP.
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
Sec. 10.113 What should the employer do when an employee dies from a work-related injury or disease?
(a) The employer shall immediately report a death due to a work-
related traumatic injury or occupational disease to OWCP by telephone,
telegram, or facsimile (fax). No more than 10 working days after
notification of the death, the employer shall complete and send Form CA-
6 to OWCP.
(b) When possible, the employer shall furnish a Form CA-5 or CA-5b
to all persons likely to be entitled to compensation for death of an
employee. The employer should also supply information about completing
and filing the form.
(c) The employer shall promptly transmit Form CA-5 or CA-5b to OWCP.
The employer shall also promptly transmit to OWCP any other claim or
paper submitted which appears to claim compensation on account of death.
Evidence and Burden of Proof
Sec. 10.115 What evidence is needed to establish a claim?
Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence
required. OWCP may send any request for additional evidence to the
claimant and to
[[Page 22]]
his or her representative, if any. Evidence should be submitted in
writing. The evidence submitted must be reliable, probative and
substantial. Each claim for compensation must meet five requirements
before OWCP can accept it. These requirements, which the employee must
establish to meet his or her burden of proof, are as follows:
(a) The claim was filed within the time limits specified by the
FECA;
(b) The injured person was, at the time of injury, an employee of
the United States as defined in 5 U.S.C. 8101(1) and Sec. 10.5(h) of
this part;
(c) The fact that an injury, disease or death occurred;
(d) The injury, disease or death occurred while the employee was in
the performance of duty; and
(e) The medical condition for which compensation or medical benefits
is claimed is causally related to the claimed injury, disease or death.
Neither the fact that the condition manifests itself during a period of
Federal employment, nor the belief of the claimant that factors of
employment caused or aggravated the condition, is sufficient in itself
to establish causal relationship.
(f) In all claims, the claimant is responsible for submitting, or
arranging for submittal of, a medical report from the attending
physician. For wage loss benefits, the claimant must also submit medical
evidence showing that the condition claimed is disabling. The rules for
submitting medical reports are found in Sec. Sec. 10.330 through
10.333.
Sec. 10.116 What additional evidence is needed in cases based on occupational disease?
(a) The employee must submit the specific detailed information
described on Form CA-2 and on any checklist (Form CA-35, A-H) provided
by the employer. OWCP has developed these checklists to address
particular occupational diseases. The medical report should also include
the information specified on the checklist for the particular disease
claimed.
(b) The employer should submit the specific detailed information
described on Form CA-2 and on any checklist pertaining to the claimed
disease.
Sec. 10.117 What happens if, in any claim, the employer contests any of the facts as stated by the claimant?
(a) An employer who has reason to disagree with any aspect of the
claimant's report shall submit a statement to OWCP that specifically
describes the factual allegation or argument with which it disagrees and
provide evidence or argument to support its position. The employer may
include supporting documents such as witness statements, medical reports
or records, or any other relevant information.
(b) Any such statement shall be submitted to OWCP with the notice of
traumatic injury or death, or within 30 calendar days from the date
notice of occupational disease or death is received from the claimant.
If the employer does not submit a written explanation to support the
disagreement, OWCP may accept the claimant's report of injury as
established. The employer may not use a disagreement with an aspect of
the claimant's report to delay forwarding the claim to OWCP or to compel
or induce the claimant to change or withdraw the claim.
Sec. 10.118 Does the employer participate in the claims process in any other way?
(a) The employer is responsible for submitting to OWCP all relevant
and probative factual and medical evidence in its possession, or which
it may acquire through investigation or other means. Such evidence may
be submitted at any time.
(b) The employer may ascertain the events surrounding an injury and
the extent of disability where it appears that an employee who alleges
total disability may be performing other work, or may be engaging in
activities which would indicate less than total disability. This
authority is in addition to that given in Sec. 10.118(a). However, the
provisions of the Privacy Act apply to any endeavor by the employer to
ascertain the facts of the case (see Sec. Sec. 10.10 and 10.11).
(c) The employer does not have the right, except as provided in
subpart C of this part, to actively participate in the claims
adjudication process.
[[Page 23]]
Sec. 10.119 What action will OWCP take with respect to information submitted by the employer?
OWCP will consider all evidence submitted appropriately, and OWCP
will inform the employee, the employee's representative, if any, and the
employer of any action taken. Where an employer contests a claim within
30 days of the initial submittal and the claim is later approved, OWCP
will notify the employer of the rationale for approving the claim.
Sec. 10.120 May a claimant submit additional evidence?
A claimant or a person acting on his or her behalf may submit to
OWCP at any time any other evidence relevant to the claim.
Sec. 10.121 What happens if OWCP needs more evidence from the claimant?
If the claimant submits factual evidence, medical evidence, or both,
but OWCP determines that this evidence is not sufficient to meet the
burden of proof, OWCP will inform the claimant of the additional
evidence needed. The claimant will be allowed at least 30 days to submit
the evidence required. OWCP is not required to notify the claimant a
second time if the evidence submitted in response to its first request
is not sufficient to meet the burden of proof.
Decisions on Entitlement to Benefits
Sec. 10.125 How does OWCP determine entitlement to benefits?
(a) In reaching any decision with respect to FECA coverage or
entitlement, OWCP considers the claim presented by the claimant, the
report by the employer, and the results of such investigation as OWCP
may deem necessary.
(b) OWCP claims staff apply the law, the regulations, and its
procedures to the facts as reported or obtained upon investigation. They
also apply decisions of the Employees' Compensation Appeals Board and
administrative decisions of OWCP as set forth in FECA Program Memoranda.
Sec. 10.126 What does the decision contain?
The decision shall contain findings of fact and a statement of
reasons. It is accompanied by information about the claimant's appeal
rights, which may include the right to a hearing, a reconsideration,
and/or a review by the Employees' Compensation Appeals Board. (See
subpart G of this part.)
Sec. 10.127 To whom is the decision sent?
A copy of the decision shall be mailed to the employee's last known
address. If the employee has a designated representative before OWCP, a
copy of the decision will also be mailed to the representative.
Notification to either the employee or the representative will be
considered notification to both. A copy of the decision will also be
sent to the employer.
Subpart C_Continuation of Pay
Sec. 10.200 What is continuation of pay?
(a) For most employees who sustain a traumatic injury, the FECA
provides that the employer must continue the employee's regular pay
during any periods of resulting disability, up to a maximum of 45
calendar days. This is called continuation of pay, or COP. The employer,
not OWCP, pays COP. Unlike wage loss benefits, COP is subject to taxes
and all other payroll deductions that are made from regular income.
(b) The employer must continue the pay of an employee who is
eligible for COP, and may not require the employee to use his or her own
sick or annual leave, unless the provisions of Sec. Sec. 10.200(c),
10.220, or Sec. 10.222 apply. However, while continuing the employee's
pay, the employer may controvert the employee's COP entitlement pending
a final determination by OWCP. OWCP has the exclusive authority to
determine questions of entitlement and all other issues relating to COP.
(c) The FECA excludes certain persons from eligibility for COP. COP
cannot be authorized for members of these excluded groups, which include
but are not limited to: persons rendering personal service to the United
States similar to the service of a civil officer or employee of the
United States, without
[[Page 24]]
pay or for nominal pay; volunteers (for instance, in the Civil Air
Patrol and Peace Corps); Job Corps and Youth Conservation Corps
enrollees; individuals in work-study programs, and grand or petit jurors
(unless otherwise Federal employees).
Eligibility for COP
Sec. 10.205 What conditions must be met to receive COP?
(a) To be eligible for COP, a person must:
(1) Have a ``traumatic injury'' as defined at Sec. 10.5(ee) which
is job-related and the cause of the disability, and/or the cause of lost
time due to the need for medical examination and treatment;
(2) File Form CA-1 within 30 days of the date of the injury (but if
that form is not available, using another form would not alone preclude
receipt); and
(3) Begin losing time from work due to the traumatic injury within
45 days of the injury.
(b) OWCP may find that the employee is not entitled to COP for other
reasons consistent with the statute (see Sec. 10.220).
Sec. 10.206 May an employee who uses leave after an injury later decide to use COP instead?
On Form CA-1, an employee may elect to use accumulated sick or
annual leave, or leave advanced by the agency, instead of electing COP.
The employee can change the election between leave and COP for
prospective periods at any point while eligibility for COP remains. The
employee may also change the election for past periods and request COP
in lieu of leave already taken for the same period. In either situation,
the following provisions apply:
(a) The request must be made to the employer within one year of the
date the leave was used or the date of the written approval of the claim
by OWCP (if written approval is issued), whichever is later.
(b) Where the employee is otherwise eligible, the agency shall
restore leave taken in lieu of any of the 45 COP days. Where any of the
45 COP days remain unused, the agency shall continue pay prospectively.
(c) The use of leave may not be used to delay or extend the 45-day
COP period or to otherwise affect the time limitation as provided by 5
U.S.C. 8117. Therefore, any leave used during the period of eligibility
counts towards the 45-day maximum entitlement to COP.
Sec. 10.207 May an employee who returns to work, then stops work again due to the effects of the injury, receive COP?
If the employee recovers from disability and returns to work, then
becomes disabled again and stops work, the employer shall pay any of the
45 days of entitlement to COP not used during the initial period of
disability where:
(a) The employee completes Form CA-2a and elects to receive regular
pay;
(b) OWCP did not deny the original claim for disability;
(c) The disability recurs and the employee stops work within 45 days
of the time the employee first returned to work following the initial
period of disability; and
(d) Pay has not been continued for the entire 45 days.
Responsibilities
Sec. 10.210 What are the employee's responsibilities in COP cases?
An employee who sustains a traumatic injury which he or she
considers disabling, or someone authorized to act on his or her behalf,
must take the following actions to ensure continuing eligibility for
COP. The employee must:
(a) Complete and submit Form CA-1 to the employing agency as soon as
possible, but no later than 30 days from the date the traumatic injury
occurred.
(b) Ensure that medical evidence supporting disability resulting
from the claimed traumatic injury, including a statement as to when the
employee can return to his or her date of injury job, is provided to the
employer within 10 calendar days after filing the claim for COP.
(c) Ensure that relevant medical evidence is submitted to OWCP, and
cooperate with OWCP in developing the claim.
[[Page 25]]
(d) Ensure that the treating physician specifies work limitations
and provides them to the employer and/or representatives of OWCP.
(e) Provide to the treating physician a description of any specific
alternative positions offered the employee, and ensure that the treating
physician responds promptly to the employer and/or OWCP, with an opinion
as to whether and how soon the employee could perform that or any other
specific position.
Sec. 10.211 What are the employer's responsibilities in COP cases?
Once the employer learns of a traumatic injury sustained by an
employee, it shall:
(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in
accordance with Sec. 10.300. Failure to do so may mean that OWCP will
not uphold any termination of COP by the employer.
(b) Advise the employee of the right to receive COP, and the need to
elect among COP, annual or sick leave or leave without pay, for any
period of disability.
(c) Inform the employee of any decision to controvert COP and/or
terminate pay, and the basis for doing so.
(d) Complete Form CA-1 and transmit it, along with all other
available pertinent information, (including the basis for any
controversion), to OWCP within 10 working days after receiving the
completed form from the employee.
Calculation of COP
Sec. 10.215 How does OWCP compute the number of days of COP used?
COP is payable for a maximum of 45 calendar days, and every day used
is counted toward this maximum. The following rules apply:
(a) Time lost on the day or shift of the injury does not count
toward COP. (Instead, the agency must keep the employee in a pay status
for that period);
(b) The first COP day is the first day disability begins following
the date of injury (providing it is within the 45 days following the
date of injury), except where the injury occurs before the beginning of
the work day or shift, in which case the date of injury is charged to
COP;
(c) Any part of a day or shift (except for the day of the injury)
counts as a full day toward the 45 calendar day total;
(d) Regular days off are included if COP has been used on the
regular work days immediately preceding or following the regular day(s)
off, and medical evidence supports disability; and
(e) Leave used during a period when COP is otherwise payable is
counted toward the 45-day COP maximum as if the employee had been in a
COP status.
(f) For employees with part-time or intermittent schedules, all
calendar days on which medical evidence indicates disability are counted
as COP days, regardless of whether the employee was or would have been
scheduled to work on those days. The rate at which COP is paid for these
employees is calculated according to Sec. 10.216(b).
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
Sec. 10.216 How is the pay rate for COP calculated?
The employer shall calculate COP using the period of time and the
weekly pay rate.
(a) The pay rate for COP purposes is equal to the employee's regular
``weekly'' pay (the average of the weekly pay over the preceding 52
weeks).
(1) The pay rate excludes overtime pay, but includes other
applicable extra pay except to the extent prohibited by law.
(2) Changes in pay or salary (for example, promotion, demotion,
within-grade increases, termination of a temporary detail, etc.) which
would have otherwise occurred during the 45-day period are to be
reflected in the weekly pay determination.
(b) The weekly pay for COP purposes is determined according to the
following formulas:
(1) For full or part-time workers (permanent or temporary) who work
the same number of hours each week of the year (or of the appointment),
the weekly pay rate is the hourly pay rate (A) in effect on the date of
injury multiplied by (x) the number of hours worked each week (B): A x B
= Weekly Pay Rate.
[[Page 26]]
(2) For part-time workers (permanent or temporary) who do not work
the same number of hours each week, but who do work each week of the
year (or period of appointment), the weekly pay rate is an average of
the weekly earnings, established by dividing (/) the total earnings
(excluding overtime) from the year immediately preceding the injury (A)
by the number of weeks (or partial weeks) worked in that year (B): A / B
= Weekly Pay Rate.
(3) For intermittent and seasonal workers, whether permanent or
temporary, who do not work either the same number of hours or every week
of the year (or period of appointment), the weekly pay rate is the
average weekly earnings established by dividing (/) the total earnings
during the full 12-month period immediately preceding the date of injury
(excluding overtime) (A), by the number of weeks (or partial weeks)
worked during that year (B) (that is, A / B); or 150 times the average
daily wage earned in the employment during the days employed within the
full year immediately preceding the date of injury divided by 52 weeks,
whichever is greater.
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
Sec. 10.217 Is COP charged if the employee continues to work, but in a different job that pays less?
If the employee cannot perform the duties of his or her regular
position, but instead works in another job with different duties with no
loss in pay, then COP is not chargeable. COP must be paid and the days
counted against the 45 days authorized by law whenever an actual
reduction of pay results from the injury, including a reduction of pay
for the employee's normal administrative workweek that results from a
change or diminution in his or her duties following an injury. However,
this does not include a reduction of pay that is due solely to an
employer being prohibited by law from paying extra pay to an employee
for work he or she does not actually perform.
Controversion and Termination of COP
Sec. 10.220 When is an employer not required to pay COP?
An employer shall continue the regular pay of an eligible employee
without a break in time for up to 45 calendar days, except when, and
only when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of
injury;
(d) The injury was not reported until after employment has been
terminated;
(e) The injury occurred off the employing agency's premises and was
otherwise not within the performance of official duties;
(f) The injury was caused by the employee's willful misconduct,
intent to injure or kill himself or herself or another person, or was
proximately caused by intoxication by alcohol or illegal drugs; or
(g) Work did not stop until more than 45 days following the injury.
[63 FR 65306, Nov. 25, 1998; 64 FR 12684, Mar. 12, 1999]
Sec. 10.221 How is a claim for COP controverted?
When the employer stops an employee's pay for one of the reasons
cited in Sec. 10.220, the employer must controvert the claim for COP on
Form CA-1, explaining in detail the basis for the refusal. The final
determination on entitlement to COP always rests with OWCP.
Sec. 10.222 When may an employer terminate COP which has already begun?
(a) Where the employer has continued the pay of the employee, it may
be stopped only when at least one of the following circumstances is
present:
(1) Medical evidence which on its face supports disability due to a
work-related injury is not received within 10 calendar days after the
claim is submitted (unless the employer's own investigation shows
disability to exist). Where the medical evidence is later
[[Page 27]]
provided, however, COP shall be reinstated retroactive to the date of
termination;
(2) The medical evidence from the treating physician shows that the
employee is not disabled from his or her regular position;
(3) Medical evidence from the treating physician shows that the
employee is not totally disabled, and the employee refuses a written
offer of a suitable alternative position which is approved by the
attending physician. If OWCP later determines that the position was not
suitable, OWCP will direct the employer to grant the employee COP
retroactive to the termination date.
(4) The employee returns to work with no loss of pay;
(5) The employee's period of employment expires or employment is
otherwise terminated (as established prior to the date of injury);
(6) OWCP directs the employer to stop COP; and/or
(7) COP has been paid for 45 calendar days.
(b) An employer may not interrupt or stop COP to which the employee
is otherwise entitled because of a disciplinary action, unless a
preliminary notice was issued to the employee before the date of injury
and the action becomes final or otherwise takes effect during the COP
period.
(c) An employer cannot otherwise stop COP unless it does so for one
of the reasons found in this section or Sec. 10.220. Where an employer
stops COP, it must file a controversion with OWCP, setting forth the
basis on which it terminated COP, no later than the effective date of
the termination.
Sec. 10.223 Are there other circumstances under which OWCP will not authorize payment of COP?
When OWCP finds that an employee or his or her representative
refuses or obstructs a medical examination required by OWCP, the right
to COP is suspended until the refusal or obstruction ceases. COP already
paid or payable for the period of suspension is forfeited. If already
paid, the COP may be charged to annual or sick leave or considered an
overpayment of pay consistent with 5 U.S.C. 5584.
Sec. 10.224 What happens if OWCP finds that the employee is not entitled to COP after it has been paid?
Where OWCP finds that the employee is not entitled to COP after it
has been paid, the employee may chose to have the time charged to annual
or sick leave, or considered an overpayment of pay under 5 U.S.C. 5584.
The employer must correct any deficiencies in COP as directed by OWCP.
Subpart D_Medical and Related Benefits
Emergency Medical Care
Sec. 10.300 What are the basic rules for authorizing emergency medical care?
(a) When an employee sustains a work-related traumatic injury that
requires medical examination, medical treatment, or both, the employer
shall authorize such examination and/or treatment by issuing a Form CA-
16. This form may be used for occupational disease or illness only if
the employer has obtained prior permission from OWCP.
(b) The employer shall issue Form CA-16 within four hours of the
claimed injury. If the employer gives verbal authorization for such
care, he or she should issue a Form CA-16 within 48 hours. The employer
is not required to issue a Form CA-16 more than one week after the
occurrence of the claimed injury. The employer may not authorize
examination or medical or other treatment in any case that OWCP has
disallowed.
(c) Form CA-16 must contain the full name and address of the
qualified physician or qualified medical facility authorized to provide
service. The authorizing official must sign and date the form and must
state his or her title. Form CA-16 authorizes treatment for 60 days from
the date of issuance, unless OWCP terminates the authorization sooner.
(d) The employer should advise the employee of the right to his or
her initial choice of physician. The employer shall allow the employee
to select a qualified physician, after advising him or her of those
physicians excluded
[[Page 28]]
under subpart I of this part. The physician may be in private practice,
including a health maintenance organization (HMO), or employed by a
Federal agency such as the Department of the Army, Navy, Air Force, or
Veterans Affairs. Any qualified physician may provide initial treatment
of a work-related injury in an emergency. See also Sec. 10.825(b).
Sec. 10.301 May the physician designated on Form CA-16 refer the employee to another medical specialist or medical facility?
The physician designated on Form CA-16 may refer the employee for
further examination, testing, or medical care. OWCP will pay this
physician or facility's bill on the authority of Form CA-16. The
employer should not issue a second Form CA-16.
Sec. 10.302 Should the employer authorize medical care if he or she doubts that the injury occurred, or that it is work-related?
If the employer doubts that the injury occurred, or that it is work-
related, he or she should authorize medical care by completing Form CA-
16 and checking block 6B of the form. If the medical and factual
evidence sent to OWCP shows that the condition treated is not work-
related, OWCP will notify the employee, the employer, and the physician
or hospital that OWCP will not authorize payment for any further
treatment.
Sec. 10.303 Should the employer use a Form CA-16 to authorize medical testing when an employee is exposed to a workplace hazard just once?
(a) Simple exposure to a workplace hazard, such as an infectious
agent, does not constitute a work-related injury entitling an employee
to medical treatment under the FECA. The employer therefore should not
use a Form CA-16 to authorize medical testing for an employee who has
merely been exposed to a workplace hazard, unless the employee has
sustained an identifiable injury or medical condition as a result of
that exposure. OWCP will authorize preventive treatment only under
certain well-defined circumstances (see Sec. 10.313).
(b) Employers may be required under other statutes or regulations to
provide their employees with medical testing and/or other services in
situations described in paragraph (a) of this section. For example,
regulations issued by the Occupational Safety and Health Administration
at 29 CFR chapter XVII require employers to provide their employees with
medical consultations and/or examinations when they either exhibit
symptoms consistent with exposure to a workplace hazard, or when an
identifiable event such as a spill, leak or explosion occurs and results
in the likelihood of exposure to a workplace hazard. In addition, 5
U.S.C. 7901 authorizes employers to establish health programs whose
staff can perform tests for workplace hazards, counsel employees for
exposure or feared exposure to such hazards, and provide health care
screening and other associated services.
Sec. 10.304 Are there any exceptions to these procedures for obtaining medical care?
In cases involving emergencies or unusual circumstances, OWCP may
authorize treatment in a manner other than as stated in this subpart.
Medical Treatment and Related Issues
Sec. 10.310 What are the basic rules for obtaining medical care?
(a) The employee is entitled to receive all medical services,
appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related
injury. The employee need not be disabled to receive such treatment. If
there is any doubt as to whether a specific service, appliance or supply
is necessary to treat the work-related injury, the employee should
consult OWCP prior to obtaining it.
(b) Any qualified physician or qualified hospital may provide such
services, appliances and supplies. A qualified provider of medical
support services may also furnish appropriate services, appliances, and
supplies. OWCP may apply a test of cost-effectiveness to appliances and
supplies. With respect to prescribed medications, OWCP
[[Page 29]]
may require the use of generic equivalents where they are available.
Sec. 10.311 What are the special rules for the services of chiropractors?
(a) The services of chiropractors that may be reimbursed are limited
by the FECA to treatment to correct a spinal subluxation. The costs of
physical and related laboratory tests performed by or required by a
chiropractor to diagnose such a subluxation are also payable.
(b) In accordance with 5 U.S.C. 8101(3), a diagnosis of spinal
``subluxation as demonstrated by X-ray to exist'' must appear in the
chiropractor's report before OWCP can consider payment of a
chiropractor's bill.
(c) A chiropractor may interpret his or her x-rays to the same
extent as any other physician. To be given any weight, the medical
report must state that x-rays support the finding of spinal subluxation.
OWCP will not necessarily require submittal of the x-ray, or a report of
the x-ray, but the report must be available for submittal on request.
(d) A chiropractor may also provide services in the nature of
physical therapy under the direction of a qualified physician.
Sec. 10.312 What are the special rules for the services of clinical psychologists?
A clinical psychologist may serve as a physician only within the
scope of his or her practice as defined by State law. Therefore, a
clinical psychologist may not serve as a physician for conditions that
include a physical component unless the applicable State law allows
clinical psychologists to treat physical conditions. A clinical
psychologist may also perform testing, evaluation and other services
under the direction of a qualified physician.
Sec. 10.313 Will OWCP pay for preventive treatment?
The FECA does not authorize payment for preventive measures such as
vaccines and inoculations, and in general, preventive treatment may be a
responsibility of the employing agency under the provisions of 5 U.S.C.
7901 (see Sec. 10.303). However, OWCP can authorize treatment for the
following conditions, even though such treatment is designed, in part,
to prevent further injury:
(a) Complications of preventive measures which are provided or
sponsored by the agency, such as an adverse reaction to prophylactic
immunization.
(b) Actual or probable exposure to a known contaminant due to an
injury, thereby requiring disease-specific measures against infection.
Examples include the provision of tetanus antitoxin or booster toxoid
injections for puncture wounds; administration of rabies vaccine for a
bite from a rabid or potentially rabid animal; or appropriate measures
where exposure to human immunodeficiency virus (HIV) has occurred.
(c) Conversion of tuberculin reaction from negative to positive
following exposure to tuberculosis in the performance of duty. In this
situation, the appropriate therapy may be authorized.
(d) Where injury to one eye has resulted in loss of vision, periodic
examination of the uninjured eye to detect possible sympathetic
involvement of the uninjured eye at an early stage.
Sec. 10.314 Will OWCP pay for the services of an attendant?
Yes, OWCP will pay for the services of an attendant up to a maximum
of $1,500 per month, where the need for such services has been medically
documented. In the exercise of the discretion afforded by 5 U.S.C.
8111(a), the Director has determined that, except where payments were
being made prior to January 4, 1999, direct payments to the claimant to
cover such services will no longer be made. Rather, the cost of
providing attendant services will be paid under section 8103 of the Act,
and medical bills for these services will be considered under Sec.
10.801. This decision is based on the following factors:
(a) The additional payments authorized under section 8111(a) should
not be necessary since OWCP will authorize payment for personal care
services under 5 U.S.C. 8103, whether or not such care includes medical
services, so long as the personal care services have
[[Page 30]]
been determined to be medically necessary and are provided by a home
health aide, licensed practical nurse, or similarly trained individual.
(b) A home health aide, licensed practical nurse, or similarly
trained individual is better able to provide quality personal care
services, including assistance in feeding, bathing, and using the
toilet. In the past, provision of supplemental compensation directly to
injured employees may have encouraged family members to take on these
responsibilities even though they may not have been trained to provide
such services. By paying for the services under section 8103, OWCP can
better determine whether the services provided are necessary and/or
adequate to meet the needs of the injured employee. In addition, a
system requiring the personal care provider to submit a bill to OWCP,
where the amount billed will be subject to OWCP's fee schedule, will
result in greater fiscal accountability.
Sec. 10.315 Will OWCP pay for transportation to obtain medical treatment?
The employee is entitled to reimbursement of reasonable and
necessary expenses, including transportation needed to obtain authorized
medical services, appliances or supplies. To determine what is a
reasonable distance to travel, OWCP will consider the availability of
services, the employee's condition, and the means of transportation.
Generally, 25 miles from the place of injury, the work site, or the
employee's home, is considered a reasonable distance to travel. The
standard form designated for Federal employees to claim travel expenses
should be used to seek reimbursement under this section.
Sec. 10.316 After selecting a treating physician, may an employee choose to be treated by another physician instead?
(a) When the physician originally selected to provide treatment for
a work-related injury refers the employee to a specialist for further
medical care, the employee need not consult OWCP for approval. In all
other instances, however, the employee must submit a written request to
OWCP with his or her reasons for desiring a change of physician.
(b) OWCP will approve the request if it determines that the reasons
submitted are sufficient. Requests that are often approved include those
for transfer of care from a general practitioner to a physician who
specializes in treating conditions like the work-related one, or the
need for a new physician when an employee has moved. The employer may
not authorize a change of physicians.
Directed Medical Examinations
Sec. 10.320 Can OWCP require an employee to be examined by another physician?
OWCP sometimes needs a second opinion from a medical specialist. The
employee must submit to examination by a qualified physician as often
and at such times and places as OWCP considers reasonably necessary. The
employee may have a qualified physician, paid by him or her, present at
such examination. However, the employee is not entitled to have anyone
else present at the examination unless OWCP decides that exceptional
circumstances exist. For example, where a hearing-impaired employee
needs an interpreter, the presence of an interpreter would be allowed.
Also, OWCP may send a case file for second opinion review where actual
examination is not needed, or where the employee is deceased.
Sec. 10.321 What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?
(a) If one medical opinion holds more probative value, OWCP will
base its determination of entitlement on that medical conclusion (see
Sec. 10.502). A difference in medical opinion sufficient to be
considered a conflict occurs when two reports of virtually equal weight
and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB
1010 (1980)).
(b) If a conflict exists between the medical opinion of the
employee's physician and the medical opinion of either a second opinion
physician or an OWCP medical adviser or consultant, OWCP shall appoint a
third physician
[[Page 31]]
to make an examination (see Sec. 10.502). This is called a referee
examination. OWCP will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.
The employee is not entitled to have anyone present at the examination
unless OWCP decides that exceptional circumstances exist. For example,
where a hearing-impaired employee needs an interpreter, the presence of
an interpreter would be allowed. Also, a case file may be sent for
referee medical review where there is no need for an actual examination,
or where the employee is deceased.
Sec. 10.322 Who pays for second opinion and referee examinations?
OWCP will pay second opinion and referee medical specialists
directly. OWCP will reimburse the employee all necessary and reasonable
expenses incident to such an examination, including transportation costs
and actual wages lost for the time needed to submit to an examination
required by OWCP.
Sec. 10.323 What are the penalties for failing to report for or obstructing a second opinion or referee examination?
If an employee refuses to submit to or in any way obstructs an
examination required by OWCP, his or her right to compensation under the
FECA is suspended until such refusal or obstruction stops. The action of
the employee's representative is considered to be the action of the
employee for purposes of this section. The employee will forfeit
compensation otherwise paid or payable under the FECA for the period of
the refusal or obstruction, and any compensation already paid for that
period will be declared an overpayment and will be subject to recovery
pursuant to 5 U.S.C. 8129.
Sec. 10.324 May an employer require an employee to undergo a physical examination in connection with a work-related injury?
The employer may have authority independent of the FECA to require
the employee to undergo a medical examination to determine whether he or
she meets the medical requirements of the position held or can perform
the duties of that position. Nothing in the FECA or in this part affects
such authority. However, no agency-required examination or related
activity shall interfere with the employee's initial choice of physician
or the provision of any authorized examination or treatment, including
the issuance of Form CA-16.
Medical Reports
Sec. 10.330 What are the requirements for medical reports?
In all cases reported to OWCP, a medical report from the attending
physician is required. This report should include:
(a) Dates of examination and treatment;
(b) History given by the employee;
(c) Physical findings;
(d) Results of diagnostic tests;
(e) Diagnosis;
(f) Course of treatment;
(g) A description of any other conditions found but not due to the
claimed injury;
(h) The treatment given or recommended for the claimed injury;
(i) The physician's opinion, with medical reasons, as to causal
relationship between the diagnosed condition(s) and the factors or
conditions of the employment;
(j) The extent of disability affecting the employee's ability to
work due to the injury;
(k) The prognosis for recovery; and
(l) All other material findings.
Sec. 10.331 How and when should the medical report be submitted?
(a) Form CA-16 may be used for the initial medical report, while
Form CA-20 may be used for the initial report and for subsequent
reports, including where continued compensation is claimed. Use of
medical report forms is not required, however. The report may also be
made in narrative form on the physician's letterhead stationery. The
report should bear the physician's signature or signature stamp. OWCP
may require an original signature on the report.
(b) The report shall be submitted directly to OWCP as soon as
possible after medical examination or treatment is received, either by
the employee or the physician. (See also Sec. 10.210.) The employer may
request a
[[Page 32]]
copy of the report from OWCP. The employer should use Form CA-17 to
obtain interim reports concerning the duty status of an employee with a
disabling injury.
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
Sec. 10.332 What additional medical information will OWCP require to support continuing payment of benefits?
In all cases of serious injury or disease, especially those
requiring hospital treatment or prolonged care, OWCP will request
detailed narrative reports from the attending physician at periodic
intervals. The physician will be asked to describe continuing medical
treatment for the condition accepted by OWCP, a prognosis, a description
of work limitations, if any, and the physician's opinion as to the
continuing causal relationship between the employee's condition and
factors of his or her Federal employment.
Sec. 10.333 What additional medical information will OWCP require to support a claim for a schedule award?
To support a claim for a schedule award, a medical report must
contain accurate measurements of the function of the organ or member, in
accordance with the American Medical Association's Guides to the
Evaluation of Permanent Impairment. These measurements may include: The
actual degree of loss of active or passive motion or deformity; the
amount of atrophy; the decrease, if any, in strength; the disturbance of
sensation; and pain due to nerve impairment.
Medical Bills
Sec. 10.335 How are medical bills submitted?
Usually, medical providers submit bills directly to OWCP. The rules
for submitting and paying bills are stated in subpart I of this part. An
employee claiming reimbursement of medical expenses should submit an
itemized bill as described in Sec. 10.802.
Sec. 10.336 What are the time frames for submitting bills?
To be considered for payment, bills must be submitted by the end of
the calendar year after the year when the expense was incurred, or by
the end of the calendar year after the year when OWCP first accepted the
claim as compensable, whichever is later.
Sec. 10.337 If OWCP reimburses an employee only partially for a medical expense, must the provider refund the balance of the amount paid to the employee?
(a) The OWCP fee schedule sets maximum limits on the amounts payable
for many services (see Sec. 10.805). The employee may be only partially
reimbursed for medical expenses because the amount he or she paid to the
medical provider for a service exceeds the maximum allowable charge set
by the OWCP fee schedule.
(b) If this happens, OWCP shall advise the employee of the maximum
allowable charge for the service in question and of his or her
responsibility to ask the provider to refund to the employee, or credit
to the employee's account, the amount he or she paid which exceeds the
maximum allowable charge. The provider may request reconsideration of
the fee determination as set forth in Sec. 10.812.
(c) If the provider does not refund to the employee or credit to his
or her account the amount of money paid in excess of the charge which
OWCP allows, the employee should submit documentation of the attempt to
obtain such refund or credit to OWCP. OWCP may make reasonable
reimbursement to the employee after reviewing the facts and
circumstances of the case.
Subpart E_Compensation and Related Benefits
Compensation for Disability and Impairment
Sec. 10.400 What is total disability?
(a) Permanent total disability is presumed to result from the loss
of use of both hands, both arms, both feet, or both legs, or the loss of
sight of both eyes. However, the presumption of permanent total
disability as a result of
[[Page 33]]
such loss may be rebutted by evidence to the contrary, such as evidence
of continued ability to work and to earn wages despite the loss.
(b) Temporary total disability is defined as the inability to return
to the position held at the time of injury or earn equivalent wages, or
to perform other gainful employment, due to the work-related injury.
Except as presumed under paragraph (a) of this section, an employee's
disability status is always considered temporary pending return to work.
Sec. 10.401 When and how is compensation for total disability paid?
(a) Compensation is payable when the employee starts to lose pay if
the injury causes permanent disability or if pay loss continues for more
than 14 calendar days. Otherwise, compensation is payable on the fourth
day after pay stops. Compensation may not be paid while an injured
employee is in a continuation of pay status or receives pay for leave.
(b) Compensation for total disability is payable at the rate of
66\2/3\ percent of the pay rate if the employee has no dependents, or 75
percent of the pay rate if the employee has at least one dependent.
(``Dependents'' are defined at 5 U.S.C. 8110(a).)
Sec. 10.402 What is partial disability?
An injured employee who cannot return to the position held at the
time of injury (or earn equivalent wages) due to the work-related
injury, but who is not totally disabled for all gainful employment, is
considered to be partially disabled.
Sec. 10.403 When and how is compensation for partial disability paid?
(a) 5 U.S.C. 8115 outlines how compensation for partial disability
is determined. If the employee has actual earnings which fairly and
reasonably represent his or her wage-earning capacity, those earnings
may form the basis for payment of compensation for partial disability.
(See Sec. Sec. 10.500 through 10.520 concerning return to work.) If the
employee's actual earnings do not fairly and reasonably represent his or
her wage-earning capacity, or if the employee has no actual earnings,
OWCP uses the factors stated in 5 U.S.C. 8115 to select a position which
represents his or her wage-earning capacity. However, OWCP will not
secure employment for the employee in the position selected for
establishing a wage-earning capacity.
(b) Compensation for partial disability is payable as a percentage
of the difference between the employee's pay rate for compensation
purposes and the employee's wage-earning capacity. The percentage is
66\2/3\ percent of this difference if the employee has no dependents, or
75 percent of this difference if the employee has at least one
dependent.
(c) The formula which OWCP uses to compute the compensation payable
for partial disability employs the following terms: Pay rate for
compensation purposes, which is defined in Sec. 10.5(s) of this part;
current pay rate, which means the salary or wages for the job held at
the time of injury at the time of the determination; and earnings, which
means the employee's actual earnings, or the salary or pay rate of the
position selected by OWCP as representing the employee's wage-earning
capacity.
(d) The employee's wage-earning capacity in terms of percentage is
computed by dividing the employee's earnings by the current pay rate.
The comparison of earnings and ``current'' pay rate for the job held at
the time of injury need not be made as of the beginning of partial
disability. OWCP may use any convenient date for making the comparison
as long as both wage rates are in effect on the date used for
comparison.
(e) The employee's wage-earning capacity in terms of dollars is
computed by first multiplying the pay rate for compensation purposes by
the percentage of wage-earning capacity. The resulting dollar amount is
then subtracted from the pay rate for compensation purposes to obtain
the employee's loss of wage-earning capacity.
Sec. 10.404 When and how is compensation for a schedule impairment paid?
Compensation is provided for specified periods of time for the
permanent loss or loss of use of certain members,
[[Page 34]]
organs and functions of the body. Such loss or loss of use is known as
permanent impairment. Compensation for proportionate periods of time is
payable for partial loss or loss of use of each member, organ or
function. OWCP evaluates the degree of impairment to schedule members,
organs and functions as defined in 5 U.S.C. 8107 according to the
standards set forth in the specified (by OWCP) edition of the American
Medical Association's Guides to the Evaluation of Permanent Impairment.
(a) 5 U.S.C. 8107(c) provides a list of schedule members. Pursuant
to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary has
added the following organs to the compensation schedule for injuries
that were sustained on or after September 7, 1974:
------------------------------------------------------------------------
Member Weeks
------------------------------------------------------------------------
Breast (one)................................................. 52
Kidney (one)................................................. 156
Larynx....................................................... 160
Lung (one)................................................... 156
Penis........................................................ 205
Testicle (one)............................................... 52
Tongue....................................................... 160
Ovary (one).................................................. 52
Uterus/cervix and vulva/vagina............................... 205
------------------------------------------------------------------------
(b) Compensation for schedule awards is payable at 66\2/3\ percent
of the employee's pay, or 75 percent of the pay when the employee has at
least one dependent.
(c) The period of compensation payable under 5 U.S.C. 8107(c) shall
be reduced by the period of compensation paid or payable under the
schedule for an earlier injury if:
(1) Compensation in both cases is for impairment of the same member
or function or different parts of the same member or function, or for
disfigurement; and
(2) OWCP finds that compensation payable for the later impairment in
whole or in part would duplicate the compensation payable for the pre-
existing impairment.
(d) Compensation not to exceed $3,500 may be paid for serious
disfigurement of the face, head or neck which is likely to handicap a
person in securing or maintaining employment.
Sec. 10.405 Who is considered a dependent in a claim based on disability or impairment?
(a) Dependents include a wife or husband; an unmarried child under
18 years of age; an unmarried child over 18 who is incapable of self-
support; a student, until he or she reaches 23 years of age or completes
four years of school beyond the high school level; or a wholly dependent
parent.
(b) Augmented compensation payable for an unmarried child, which
would otherwise terminate when the child reached the age of 18, may be
continued while the child is a student as defined in 5 U.S.C. 8101(17).
Sec. 10.406 What are the maximum and minimum rates of compensation in disability cases?
(a) Compensation for total or partial disability may not exceed 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule. (Basic monthly pay does not include locality
adjustments.) However, this limit does not apply to disability sustained
in the performance of duty which was due to an assault which occurred
during an attempted assassination of a Federal official described under
10 U.S.C. 351(a) or 1751(a).
(b) Compensation for total disability may not be less than 75
percent of the basic monthly pay of the first step of grade 2 of the
General Schedule or actual pay, whichever is less. (Basic monthly pay
does not include locality adjustments.)
Compensation for Death
Sec. 10.410 Who is entitled to compensation in case of death, and what are the rates of compensation payable in death cases?
(a) If there is no child entitled to compensation, the employee's
surviving spouse will receive compensation equal to 50 percent of the
employee's monthly pay until death or remarriage before reaching age 55.
Upon remarriage, the surviving spouse will be paid a lump sum equal to
24 times the monthly compensation payment (excluding compensation
payable on account of another individual) to which
[[Page 35]]
the surviving spouse was entitled immediately before the remarriage. If
remarriage occurs at age 55 or older, the lump-sum payment will not be
paid and compensation will continue until death.
(b) If there is a child entitled to compensation, the compensation
for the surviving spouse will equal 45 percent of the employee's monthly
pay plus 15 percent for each child, but the total percentage may not
exceed 75 percent.
(c) If there is a child entitled to compensation and no surviving
spouse, compensation for one child will equal 40 percent of the
employee's monthly pay. Fifteen percent will be awarded for each
additional child, not to exceed 75 percent, the total amount to be
shared equally among all children.
(d) If there is no child or surviving spouse entitled to
compensation, the parents will receive compensation equal to 25 percent
of the employee's monthly pay if one parent was wholly dependent on the
employee at the time of death and the other was not dependent to any
extent, or 20 percent each if both were wholly dependent on the
employee, or a proportionate amount in the discretion of the Director if
one or both were partially dependent on the employee. If there is a
child or surviving spouse entitled to compensation, the parents will
receive so much of the compensation described in the preceding sentence
as, when added to the total percentages payable to the surviving spouse
and children, will not exceed a total of 75 percent of the employee's
monthly pay.
(e) If there is no child, surviving spouse or dependent parent
entitled to compensation, the brothers, sisters, grandparents and
grandchildren will receive compensation equal to 20 percent of the
employee's monthly pay to such dependent if one was wholly dependent on
the employee at the time of death; or 30 percent if more than one was
wholly dependent, divided among such dependents equally; or 10 percent
if no one was wholly dependent but one or more was partly dependent,
divided among such dependents equally. If there is a child, surviving
spouse or dependent parent entitled to compensation, the brothers,
sisters, grandparents and grandchildren will receive so much of the
compensation described in the preceding sentence as, when added to the
total percentages payable to the children, surviving spouse and
dependent parents, will not exceed a total of 75 percent of the
employee's monthly pay.
(f) A child, brother, sister or grandchild may be entitled to
receive death benefits until death, marriage, or reaching age 18.
Regarding entitlement after reaching age 18, refer to Sec. 10.417 of
these regulations.
Sec. 10.411 What are the maximum and minimum rates of compensation in death cases?
(a) Compensation for death may not exceed the employee's pay or 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule, except that compensation may exceed the employee's
basic monthly pay if such excess is created by authorized cost-of-living
increases. (Basic monthly pay does not include locality adjustments.)
However, the maximum limit does not apply when the death occurred during
an assassination of a Federal official described under 18 U.S.C. 351(a)
or 18 U.S.C. 1751(a).
(b) Compensation for death is computed on a minimum pay rate equal
to the basic monthly pay of an employee at the first step of grade 2 of
the General Schedule. (Basic monthly pay does not include locality
adjustments.)
Sec. 10.412 Will OWCP pay the costs of burial and transportation of the remains?
In a case accepted for death benefits, OWCP will pay up to $800 for
funeral and burial expenses. When an employee's home is within the
United States and the employee dies outside the United States, or away
from home or the official duty station, an additional amount may be paid
for transporting the remains to the employee's home. An additional
amount of $200 is paid to the personal representative of the decedent
for reimbursement of the costs of terminating the decedent's status as
an employee of the United States.
[[Page 36]]
Sec. 10.413 If a person dies while receiving a schedule award, to whom is the balance of the schedule award payable?
The circumstances under which the balance of a schedule award may be
paid to an employee's survivors are described in 5 U.S.C. 8109.
Therefore, if there is no surviving spouse or child, OWCP will pay
benefits as follows:
(a) To the parent, or parents, wholly dependent for support on the
decedent in equal shares with any wholly dependent brother, sister,
grandparent or grandchild;
(b) To the parent, or parents, partially dependent for support on
the decedent in equal shares when there are no wholly dependent
brothers, sisters, grandparents or grandchildren (or other wholly
dependent parent); and
(c) To the parent, or parents, partially dependent upon the
decedent, 25 percent of the amount payable, shared equally, and the
remaining 75 percent to any wholly dependent brother, sister,
grandparent or grandchild (or wholly dependent parent), shared equally.
Sec. 10.414 What reports of dependents are needed in death cases?
If a beneficiary is receiving compensation benefits on account of an
employee's death, OWCP will ask him or her to complete a report once
each year on Form CA-12. The report requires the beneficiary to note
changes in marital status and dependents. If the beneficiary fails to
submit the form (or an equivalent written statement) within 30 days of
the date of request, OWCP shall suspend compensation until the requested
form or equivalent written statement is received. The suspension will
include compensation payable for or on behalf of another person (for
example, compensation payable to a widow on behalf of a child). When the
form or statement is received, compensation will be reinstated at the
appropriate rate retroactive to the date of suspension, provided the
beneficiary is entitled to such compensation.
Sec. 10.415 What must a beneficiary do if the number of beneficiaries decreases?
The circumstances under which compensation on account of death shall
be terminated are described in 5 U.S.C. 8133(b). A beneficiary in a
claim for death benefits should promptly notify OWCP of any event which
would affect his or her entitlement to continued compensation. The terms
``marriage'' and ``remarriage'' include common-law marriage as
recognized and defined by State law in the State where the beneficiary
resides. If a beneficiary, or someone acting on his or her behalf,
receives a check which includes payment of compensation for any period
after the date when entitlement ended, he or she must promptly return
the check to OWCP.
Sec. 10.416 How does a change in the number of beneficiaries affect the amount of compensation paid to the other beneficiaries?
If compensation to a beneficiary is terminated, the amount of
compensation payable to one or more of the remaining beneficiaries may
be reapportioned. Similarly, the birth of a posthumous child may result
in a reapportionment of the amount of compensation payable to other
beneficiaries. The parent, or someone acting on the child's behalf,
shall promptly notify OWCP of the birth and submit a copy of the birth
certificate.
Sec. 10.417 What reports are needed when compensation payments continue for children over age 18?
(a) Compensation payable on behalf of a child, brother, sister, or
grandchild, which would otherwise end when the person reaches 18 years
of age, shall be continued if and for so long as he or she is not
married and is either a student as defined in 5 U.S.C. 8101(17), or
physically or mentally incapable of self-support.
(b) At least twice each year, OWCP will ask a beneficiary receiving
compensation based on the student status of a dependent to provide proof
of continuing entitlement to such compensation, including certification
of school enrollment.
[[Page 37]]
(c) Likewise, at least twice each year, OWCP will ask a beneficiary
or legal guardian receiving compensation based on a dependent's physical
or mental inability to support himself or herself to submit a medical
report verifying that the dependent's medical condition persists and
that it continues to preclude self-support.
Adjustments to Compensation
Sec. 10.420 How are cost-of-living adjustments applied?
(a) In cases of disability, a beneficiary is eligible for cost-of-
living adjustments under 5 U.S.C. 8146a where injury-related disability
began more than one year prior to the date the cost-of-living adjustment
took effect. The employee's use of continuation of pay as provided by 5
U.S.C. 8118, or of sick or annual leave, during any part of the period
of disability does not affect the computation of the one-year period.
(b) Where an injury does not result in disability but compensation
is payable for permanent impairment of a covered member, organ or
function of the body, a beneficiary is eligible for cost-of-living
adjustments under 5 U.S.C. 8146a where the award for such impairment
began more than one year prior to the date the cost-of-living adjustment
took effect.
(c) In cases of recurrence of disability, where the pay rate for
compensation purposes is the pay rate at the time disability recurs, a
beneficiary is eligible for cost-of-living adjustments under 5 U.S.C.
8146a where the effective date of that pay rate began more than one year
prior to the date the cost-of living adjustment took effect.
(d) In cases of death, entitlement to cost-of-living adjustments
under 5 U.S.C. 8146a begins with the first such adjustment occurring
more than one year after the date of death. However, if the death was
preceded by a period of injury-related disability, compensation payable
to the survivors will be increased by the same percentages as the cost-
of-living adjustments paid or payable to the deceased employee for the
period of disability, as well as by subsequent cost-of-living
adjustments to which the survivors would otherwise be entitled.
Sec. 10.421 May a beneficiary receive other kinds of payments from the Federal Government concurrently with compensation?
(a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive
wage-loss compensation concurrently with a Federal retirement or
survivor annuity. The beneficiary must elect the benefit that he or she
wishes to receive, and the election, once made, is revocable.
(b) An employee may receive compensation concurrently with military
retired pay, retirement pay, retainer pay or equivalent pay for service
in the Armed Forces or other uniformed services, subject to the
reduction of such pay in accordance with 5 U.S.C. 5532(b).
(c) An employee may not receive compensation for total disability
concurrently with severance pay or separation pay. However, an employee
may concurrently receive compensation for partial disability or
permanent impairment to a schedule member, organ or function with
severance pay or separation pay.
(d) Pursuant to 5 U.S.C. 8116(d), a beneficiary may receive
compensation under the FECA for either the death or disability of an
employee concurrently with benefits under title II of the Social
Security Act on account of the age or death of such employee. However,
this provision of the FECA also requires OWCP to reduce the amount of
any such compensation by the amount of any Social Security Act benefits
that are attributable to the Federal service of the employee.
(e) To determine the employee's entitlement to compensation, OWCP
may require an employee to submit an affidavit or statement as to the
receipt of any Federally funded or Federally assisted benefits. If an
employee fails to submit such affidavit or statement within 30 days of
the date of the request, his or her right to compensation shall be
suspended until such time as the requested affidavit or statement is
received. At that time compensation will be reinstated retroactive to
the date of suspension provided the employee is entitled to such
compensation.
[[Page 38]]
Sec. 10.422 May compensation payments be issued in a lump sum?
(a) In exercise of the discretion afforded under 5 U.S.C. 8135(a),
OWCP has determined that lump-sum payments will not be made to persons
entitled to wage-loss benefits (that is, those payable under 5 U.S.C.
8105 and 8106). Therefore, when OWCP receives requests for lump-sum
payments for wage-loss benefits, OWCP will not exercise further
discretion in the matter. This determination is based on several
factors, including:
(1) The purpose of the FECA, which is to replace lost wages;
(2) The prudence of providing wage-loss benefits on a regular,
recurring basis; and
(3) The high cost of the long-term borrowing that is needed to pay
out large lump sums.
(b) However, a lump-sum payment may be made to an employee entitled
to a schedule award under 5 U.S.C. 8107 where OWCP determines that such
a payment is in the employee's best interest. Lump-sum payments of
schedule awards generally will be considered in the employee's best
interest only where the employee does not rely upon compensation
payments as a substitute for lost wages (that is, the employee is
working or is receiving annuity payments). An employee possesses no
absolute right to a lump-sum payment of benefits payable under 5 U.S.C.
8107.
(c) Lump-sum payments to surviving spouses are addressed in 5 U.S.C.
8135(b).
Sec. 10.423 May compensation payments be assigned to, or attached by, creditors?
(a) As a general rule, compensation and claims for compensation are
exempt from the claims of private creditors. This rule does not apply to
claims submitted by Federal agencies. Further, any attempt by a FECA
beneficiary to assign his or her claim is null and void. However,
pursuant to provisions of the Social Security Act, 42 U.S.C. 659, and
regulations issued by the Office of Personnel Management (OPM) at 5 CFR
part 581, FECA benefits, including survivor's benefits, may be garnished
to collect overdue alimony and child support payments.
(b) Garnishment for child support and alimony may be requested by
providing a copy of the State agency or court order to the district
office handling the FECA claim.
Sec. 10.424 May someone other than the beneficiary be designated to receive compensation payments?
A beneficiary may be incapable of managing or directing the
management of his or her benefits because of a mental or physical
disability, or because of legal incompetence, or because he or she is
under 18 years of age. In this situation, absent the appointment of a
guardian or other party to manage the financial affairs of the claimant
by a court or administrative body authorized to do so, OWCP in its sole
discretion may approve a person to serve as the representative payee for
funds due the beneficiary.
Sec. 10.425 May compensation be claimed for periods of restorable leave?
The employee may claim compensation for periods of annual and sick
leave which are restorable in accordance with the rules of the employing
agency. Forms CA-7a and CA-7b are used for this purpose.
Overpayments
Sec. 10.430 How does OWCP notify an individual of a payment made?
(a) In addition to providing narrative descriptions to recipients of
benefits paid or payable, OWCP includes on each periodic check a clear
indication of the period for which payment is being made. A form is sent
to the recipient with each supplemental check which states the date and
amount of the payment and the period for which payment is being made.
For payments sent by electronic funds transfer (EFT), a notification of
the date and amount of payment appears on the statement from the
recipient's financial institution.
(b) By these means, OWCP puts the recipient on notice that a payment
was made and the amount of the payment. If the amount received differs
from the amount indicated on the written notice or bank statement, the
recipient is responsible for notifying OWCP of the difference. Absent
affirmative evidence
[[Page 39]]
to the contrary, the beneficiary will be presumed to have received the
notice of payment, whether mailed or transmitted electronically.
Sec. 10.431 What does OWCP do when an overpayment is identified?
Before seeking to recover an overpayment or adjust benefits, OWCP
will advise the beneficiary in writing that:
(a) The overpayment exists, and the amount of overpayment;
(b) A preliminary finding shows either that the individual was or
was not at fault in the creation of the overpayment;
(c) He or she has the right to inspect and copy Government records
relating to the overpayment; and
(d) He or she has the right to present evidence which challenges the
fact or amount of the overpayment, and/or challenges the preliminary
finding that he or she was at fault in the creation of the overpayment.
He or she may also request that recovery of the overpayment be waived.
Sec. 10.432 How can an individual present evidence to OWCP in response to a preliminary notice of an overpayment?
The individual may present this evidence to OWCP in writing or at a
pre-recoupment hearing. The evidence must be presented or the hearing
requested within 30 days of the date of the written notice of
overpayment. Failure to request the hearing within this 30-day time
period shall constitute a waiver of that right.
Sec. 10.433 Under what circumstances can OWCP waive recovery of an overpayment?
(a) OWCP may consider waiving an overpayment only if the individual
to whom it was made was not at fault in accepting or creating the
overpayment. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper. The recipient must show good faith and
exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits. A recipient who has done any
of the following will be found to be at fault with respect to creating
an overpayment:
(1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have known to
be incorrect. (This provision applies only to the overpaid individual.)
(b) Whether or not OWCP determines that an individual was at fault
with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual's
capacity to realize that he or she is being overpaid.
Sec. 10.434 If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it?
If OWCP finds that the recipient of an overpayment was not at fault,
repayment will still be required unless:
(a) Adjustment or recovery of the overpayment would defeat the
purpose of the FECA (see Sec. 10.436), or
(b) Adjustment or recovery of the overpayment would be against
equity and good conscience (see Sec. 10.437).
Sec. 10.435 Is an individual responsible for an overpayment that resulted from an error made by OWCP or another Government agency?
(a) The fact that OWCP may have erred in making the overpayment, or
that the overpayment may have resulted from an error by another
Government agency, does not by itself relieve the individual who
received the overpayment from liability for repayment if the individual
also was at fault in accepting the overpayment.
(b) However, OWCP may find that the individual was not at fault if
failure to report an event affecting compensation benefits, or
acceptance of an incorrect payment, occurred because:
(1) The individual relied on misinformation given in writing by OWCP
(or by another Government agency which he or she had reason to believe
was connected with the administration of benefits) as to the
interpretation of
[[Page 40]]
a pertinent provision of the FECA or its regulations; or
(2) OWCP erred in calculating cost-of-living increases, schedule
award length and/or percentage of impairment, or loss of wage-earning
capacity.
Sec. 10.436 Under what circumstances would recovery of an overpayment defeat the purpose of the FECA?
Recovery of an overpayment will defeat the purpose of the FECA if
such recovery would cause hardship to a currently or formerly entitled
beneficiary because:
(a) The beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation
benefits) to meet current ordinary and necessary living expenses; and
(b) The beneficiary's assets do not exceed a specified amount as
determined by OWCP from data furnished by the Bureau of Labor
Statistics. A higher amount is specified for a beneficiary with one or
more dependents.
Sec. 10.437 Under what circumstances would recovery of an overpayment be against equity and good conscience?
(a) Recovery of an overpayment is considered to be against equity
and good conscience when any individual who received an overpayment
would experience severe financial hardship in attempting to repay the
debt.
(b) Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a
valuable right or changes his or her position for the worse. In making
such a decision, OWCP does not consider the individual's current ability
to repay the overpayment.
(1) To establish that a valuable right has been relinquished, it
must be shown that the right was in fact valuable, that it cannot be
regained, and that the action was based chiefly or solely in reliance on
the payments or on the notice of payment. Donations to charitable causes
or gratuitous transfers of funds to other individuals are not considered
relinquishments of valuable rights.
(2) To establish that an individual's position has changed for the
worse, it must be shown that the decision made would not otherwise have
been made but for the receipt of benefits, and that this decision
resulted in a loss.
Sec. 10.438 Can OWCP require the individual who received the overpayment to submit additional financial information?
(a) The individual who received the overpayment is responsible for
providing information about income, expenses and assets as specified by
OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of the FECA, or be against
equity and good conscience. This information will also be used to
determine the repayment schedule, if necessary.
(b) Failure to submit the requested information within 30 days of
the request shall result in denial of waiver, and no further request for
waiver shall be considered until the requested information is furnished.
Sec. 10.439 What is addressed at a pre-recoupment hearing?
At a pre-recoupment hearing, the OWCP representative will consider
all issues in the claim on which a formal decision has been issued. Such
a hearing will thus fulfill OWCP's obligation to provide pre-recoupment
rights and a hearing under 5 U.S.C. 8124(b). Pre-recoupment hearings
shall be conducted in exactly the same manner as provided in Sec.
10.615 through Sec. 10.622.
Sec. 10.440 How does OWCP communicate its final decision concerning recovery of an overpayment, and what appeal right accompanies it?
(a) OWCP will send a copy of the final decision to the individual
from whom recovery is sought; his or her representative, if any; and the
employing agency.
(b) The only review of a final decision concerning an overpayment is
to the Employees' Compensation Appeals Board. The provisions of 5 U.S.C.
8124(b) (concerning hearings) and 5 U.S.C. 8128(a) (concerning
reconsiderations) do not apply to such a decision.
[[Page 41]]
Sec. 10.441 How are overpayments collected?
(a) When an overpayment has been made to an individual who is
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant
factors, so as to minimize any hardship. Should the individual die
before collection has been completed, collection shall be made by
decreasing later payments, if any, payable under the FECA with respect
to the individual's death.
(b) When an overpayment has been made to an individual who is not
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. The overpayment is subject to the
provisions of the Federal Claims Collection Act of 1966 (as amended) and
may be reported to the Internal Revenue Service as income. If the
individual fails to make such refund, OWCP may recover the same through
any available means, including offset of salary, annuity benefits, or
other Federal payments, including tax refunds as authorized by the Tax
Refund Offset Program, or referral of the debt to a collection agency or
to the Department of Justice.
Subpart F_Continuing Benefits
Rules and Evidence
Sec. 10.500 What are the basic rules governing continuing receipt of compensation benefits and return to work?
(a) Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is
available only for any periods during which an employee's work-related
medical condition prevents him or her from earning the wages earned
before the work-related injury. Payment of medical benefits is available
for all treatment necessary due to a work-related medical condition.
(b) Each disabled employee is obligated to perform such work as he
or she can, and OWCP's goal is to return each disabled employee to
suitable work as soon as he or she is medically able. In determining
what constitutes ``suitable work'' for a particular disabled employee,
OWCP considers the employee's current physical limitations, whether the
work is available within the employee's demonstrated commuting area, the
employee's qualifications to perform such work, and other relevant
factors. (See Sec. 10.508 with respect to the payment of relocation
expenses.)
Sec. 10.501 What medical evidence is necessary to support continuing receipt of compensation benefits?
(a) The employee is responsible for providing sufficient medical
evidence to justify payment of any compensation sought.
(1) To support payment of continuing compensation, narrative medical
evidence must be submitted whenever OWCP requests it but ordinarily not
less than once a year. It must contain a physician's rationalized
opinion as to whether the specific period of alleged disability is
causally related to the employee's accepted injury or illness.
(2) The physician's opinion must be based on the facts of the case
and the complete medical background of the employee, must be one of
reasonable medical certainty and must include objective findings in
support of its conclusions. Subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing
compensation. Likewise, medical limitations based solely on the fear of
a possible future injury are also not sufficient to support payment of
continuing compensation. See Sec. 10.330 for a fuller discussion of
medical evidence.
(b) OWCP may require any kind of non-invasive testing to determine
the employee's functional capacity. Failure to undergo such testing will
result in a suspension of benefits. In addition,
[[Page 42]]
OWCP may direct the employee to undergo a second opinion or referee
examination in any case it deems appropriate (see Sec. Sec. 10.320 and
10.321).
Sec. 10.502 How does OWCP evaluate evidence in support of continuing receipt of compensation benefits?
In considering the medical and factual evidence, OWCP will weigh the
probative value of the attending physician's report, any second opinion
physician's report, any other medical reports, or any other evidence in
the file. If OWCP determines that the medical evidence supporting one
conclusion is more consistent, logical, and well-reasoned than evidence
supporting a contrary conclusion, OWCP will use the conclusion that is
supported by the weight of the medical evidence as the basis for
awarding or denying further benefits. If medical reports that are
equally well-reasoned support inconsistent determinations of an issue
under consideration, OWCP will direct the employee to undergo a referee
examination to resolve the issue. The results of the referee examination
will be given special weight in determining the issue.
Sec. 10.503 Under what circumstances may OWCP reduce or terminate compensation benefits?
Once OWCP has advised the employee that it has accepted a claim and
has either approved continuation of pay or paid medical benefits or
compensation, benefits will not be terminated or reduced unless the
weight of the evidence establishes that:
(a) The disability for which compensation was paid has ceased;
(b) The disabling condition is no longer causally related to the
employment;
(c) The employee is only partially disabled;
(d) The employee has returned to work;
(e) The beneficiary was convicted of fraud in connection with a
claim under the FECA, or the beneficiary was incarcerated based on any
felony conviction; or
(f) OWCP's initial decision was in error.
Return to Work--Employer's Responsibilities
Sec. 10.505 What actions must the employer take?
Upon authorizing medical care, the employer should advise the
employee in writing as soon as possible of his or her obligation to
return to work under Sec. 10.210 and as defined in this subpart. The
term ``return to work'' as used in this subpart is not limited to
returning to work at the employee's normal worksite or usual position,
but may include returning to work at other locations and in other
positions. In general, the employer should make all reasonable efforts
to place the employee in his or her former or an equivalent position, in
accordance with 5 U.S.C. 8151(b)(2), if the employee has fully recovered
after one year. The Office of Personnel Management (not OWCP)
administers this provision.
(a) Where the employer has specific alternative positions available
for partially disabled employees, the employer should advise the
employee in writing of the specific duties and physical requirements of
those positions.
(b) Where the employer has no specific alternative positions
available for an employee who can perform restricted or limited duties,
the employer should advise the employee of any accommodations the agency
can make to accommodate the employee's limitations due to the injury.
Sec. 10.506 May the employer monitor the employee's medical care?
The employer may monitor the employee's medical progress and duty
status by obtaining periodic medical reports. Form CA-17 is usually
adequate for this purpose. To aid in returning an injured employee to
suitable employment, the employer may also contact the employee's
physician in writing concerning the work limitations imposed by the
effects of the injury and possible job assignments. (However, the
employer shall not contact the physician by telephone or through
personal visit.) When such contact is made, the employer shall send a
copy of any such
[[Page 43]]
correspondence to OWCP and the employee, as well as a copy of the
physician's response when received. The employer may also contact the
employee at reasonable intervals to request periodic medical reports
addressing his or her ability to return to work.
Sec. 10.507 How should the employer make an offer of suitable work?
Where the attending physician or OWCP notifies the employer in
writing that the employee is partially disabled (that is, the employee
can perform some work but not return to the position held at date of
injury), the employer should act as follows:
(a) If the employee can perform in a specific alternative position
available in the agency, and the employer has advised the employee in
writing of the specific duties and physical requirements, the employer
shall notify the employee in writing immediately of the date of
availability.
(b) If the employee can perform restricted or limited duties, the
employer should determine whether such duties are available or whether
an existing job can be modified. If so, the employer shall advise the
employee in writing of the duties, their physical requirements and
availability.
(c) The employer must make any job offer in writing. However, the
employer may make a job offer verbally as long as it provides the job
offer to the employee in writing within two business days of the verbal
job offer.
(d) The offer must include a description of the duties of the
position, the physical requirements of those duties, and the date by
which the employee is either to return to work or notify the employer of
his or her decision to accept or refuse the job offer. The employer must
send a complete copy of any job offer to OWCP when it is sent to the
employee.
Sec. 10.508 May relocation expenses be paid for an employee who would need to move to accept an offer of reemployment?
If possible, the employer should offer suitable reemployment in the
location where the employee currently resides. If this is not practical,
the employer may offer suitable reemployment at the employee's former
duty station or other location. Where the distance between the location
of the offered job and the location where the employee currently resides
is at least 50 miles, OWCP may pay such relocation expenses as are
considered reasonable and necessary if the employee has been terminated
from the agency's employment rolls and would incur relocation expenses
by accepting the offered reemployment. OWCP may also pay such relocation
expenses when the new employer is other than a Federal employer. OWCP
will notify the employee that relocation expenses are payable if it
makes a finding that the job is suitable. To determine whether a
relocation expense is reasonable and necessary, OWCP shall use as a
guide the Federal travel regulations for permanent changes of duty
station.
Sec. 10.509 If an employee's light-duty job is eliminated due to downsizing, what is the effect on compensation?
(a) In general, an employee will not be considered to have
experienced a compensable recurrence of disability as defined in Sec.
10.5(x) merely because his or her employer has eliminated the employee's
light-duty position in a reduction-in-force or some other form of
downsizing. When this occurs, OWCP will determine the employee's wage-
earning capacity based on his or her actual earnings in such light-duty
position if this determination is appropriate on the basis that such
earnings fairly and reasonably represent the employee's wage-earning
capacity and such a determination has not already been made.
(b) For the purposes of this section only, a light-duty position
means a classified position to which the injured employee has been
formally reassigned that conforms to the established physical
limitations of the injured employee and for which the employer has
already prepared a written position description such that the position
constitutes ``regular'' Federal employment. In the absence of a ``light-
duty position'' as described in this paragraph, OWCP will assume that
the employee was instead engaged in non-competitive employment which
does not represent the employee's wage-
[[Page 44]]
earning capacity, i.e., work of the type provided to injured employees
who cannot otherwise be employed by the Federal Government or in any
well-known branch of the general labor market.
Return to Work--Employee's Responsibilities
Sec. 10.515 What actions must the employee take with respect to returning to work?
(a) If an employee can resume regular Federal employment, he or she
must do so. No further compensation for wage loss is payable once the
employee has recovered from the work-related injury to the extent that
he or she can perform the duties of the position held at the time of
injury, or earn equivalent wages.
(b) If an employee cannot return to the job held at the time of
injury due to partial disability from the effects of the work-related
injury, but has recovered enough to perform some type of work, he or she
must seek work. In the alternative, the employee must accept suitable
work offered to him or her. (See Sec. 10.500 for a definition of
``suitable work''.) This work may be with the original employer or
through job placement efforts made by or on behalf of OWCP.
(c) If the employer has advised an employee in writing that specific
alternative positions exist within the agency, the employee shall
provide the description and physical requirements of such alternate
positions to the attending physician and ask whether and when he or she
will be able to perform such duties.
(d) If the employer has advised an employee that it is willing to
accommodate his or her work limitations, the employee shall so advise
the attending physician and ask him or her to specify the limitations
imposed by the injury. The employee is responsible for advising the
employer immediately of these limitations.
(e) From time to time, OWCP may require the employee to report his
or her efforts to obtain suitable employment, whether with the Federal
Government, State and local Governments, or in the private sector.
Sec. 10.516 How will an employee know if OWCP considers a job to be suitable?
OWCP shall advise the employee that it has found the offered work to
be suitable and afford the employee 30 days to accept the job or present
any reasons to counter OWCP's finding of suitability. If the employee
presents such reasons, and OWCP determines that the reasons are
unacceptable, it will notify the employee of that determination and that
he or she has 15 days in which to accept the offered work without
penalty. At that point in time, OWCP's notification need not state the
reasons for finding that the employee's reasons are not acceptable.
Sec. 10.517 What are the penalties for refusing to accept a suitable job offer?
(a) 5 U.S.C. 8106(c) provides that a partially disabled employee who
refuses to seek suitable work, or refuses to or neglects to work after
suitable work is offered to or arranged for him or her, is not entitled
to compensation. An employee who refuses or neglects to work after
suitable work has been offered or secured for him or her has the burden
to show that this refusal or failure to work was reasonable or
justified.
(b) After providing the two notices described in Sec. 10.516, OWCP
will terminate the employee's entitlement to further compensation under
5 U.S.C. 8105, 8106, and 8107, as provided by 5 U.S.C. 8106(c)(2).
However, the employee remains entitled to medical benefits as provided
by 5 U.S.C. 8103.
Sec. 10.518 Does OWCP provide services to help employees return to work?
(a) OWCP may, in its discretion, provide vocational rehabilitation
services as authorized by 5 U.S.C. 8104. These services include
assistance from registered nurses working under the direction of OWCP.
Among other things, these nurses visit the worksite, ensure that the
duties of the position do not exceed the medical limitations as
represented by the weight of medical evidence established by OWCP, and
address any problems the employee may have in adjusting to the work
setting. The nurses do not evaluate medical
[[Page 45]]
evidence; OWCP claims staff perform this function.
(b) Vocational rehabilitation services may also include vocational
evaluation, testing, training, and placement services with either the
original employer or a new employer, when the injured employee cannot
return to the job held at the time of injury. These services also
include functional capacity evaluations, which help to tailor individual
rehabilitation programs to employees' physical reconditioning and
behavioral modification needs, and help employees to meet the demands of
current or potential jobs.
Sec. 10.519 What action will OWCP take if an employee refuses to undergo vocational rehabilitation?
Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation. To ensure that vocational
rehabilitation services are available to all who might be entitled to
benefit from them, an injured employee who has a loss of wage-earning
capacity shall be presumed to be ``permanently disabled,'' for purposes
of this section only, unless and until the employee proves that the
disability is not permanent. If an employee without good cause fails or
refuses to apply for, undergo, participate in, or continue to
participate in a vocational rehabilitation effort when so directed, OWCP
will act as follows:
(a) Where a suitable job has been identified, OWCP will reduce the
employee's future monetary compensation based on the amount which would
likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. OWCP will determine this amount in
accordance with the job identified through the vocational rehabilitation
planning process, which includes meetings with the OWCP nurse and the
employer. The reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.
(b) Where a suitable job has not been identified, because the
failure or refusal occurred in the early but necessary stages of a
vocational rehabilitation effort (that is, meetings with the OWCP nurse,
interviews, testing, counseling, functional capacity evaluations, and
work evaluations), OWCP cannot determine what would have been the
employee's wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this
section, in the absence of evidence to the contrary, OWCP will assume
that the vocational rehabilitation effort would have resulted in a
return to work with no loss of wage-earning capacity, and OWCP will
reduce the employee's monetary compensation accordingly (that is, to
zero). This reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.
Sec. 10.520 How does OWCP determine compensation after an employee completes a vocational rehabilitation program?
After completion of a vocational rehabilitation program, OWCP may
adjust compensation to reflect the injured worker's wage-earning
capacity. Actual earnings will be used if they fairly and reasonably
reflect the earning capacity. The position determined to be the goal of
a training plan is assumed to represent the employee's earning capacity
if it is suitable and performed in sufficient numbers so as to be
reasonably available, whether or not the employee is placed in such a
position.
Reports of Earnings From Employment and Self-Employment
Sec. 10.525 What information must the employee report?
(a) An employee who is receiving compensation for partial or total
disability must advise OWCP immediately of any return to work, either
part-time or full-time. In addition, an employee who is receiving
compensation for partial or total disability will periodically be
required to submit a report of earnings from employment or self-
employment, either part-time or full-time. (See Sec. 10.5(g) for a
definition of ``earnings''.)
(b) The employee must report even those earnings which do not seem
likely to affect his or her level of benefits. Many kinds of income,
though not all, will result in reduction of compensation benefits. While
earning income
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will not necessarily result in a reduction of compensation, failure to
report income may result in forfeiture of all benefits paid during the
reporting period.
Sec. 10.526 Must the employee report volunteer activities?
An employee who is receiving compensation for partial or total
disability is periodically required to report volunteer activity or any
other kind of activity which shows that the employee is no longer
totally disabled for work.
Sec. 10.527 Does OWCP verify reports of earnings?
To make proper determinations of an employee's entitlement to
benefits, OWCP may verify the earnings reported by the employee through
a variety of means, including but not limited to computer matches with
the Office of Personnel Management and inquiries to the Social Security
Administration. Also, OWCP may perform computer matches with records of
State agencies, including but not limited to workers' compensation
administrations, to determine whether private employers are paying
workers' compensation insurance premiums for recipients of benefits
under the FECA.
Sec. 10.528 What action will OWCP take if the employee fails to file a report of activity indicating an ability to work?
OWCP periodically requires each employee who is receiving
compensation benefits to complete an affidavit as to any work, or
activity indicating an ability to work, which the employee has performed
for the prior 15 months. If an employee who is required to file such a
report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss under 5 U.S.C. 8105 or 8106 is
suspended until OWCP receives the requested report. At that time, OWCP
will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.
Sec. 10.529 What action will OWCP take if the employee files an incomplete report?
(a) If an employee knowingly omits or understates any earnings or
work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was
required. A false or evasive statement, omission, concealment, or
misrepresentation with respect to employment activity or earnings in a
report may also subject an employee to criminal prosecution.
(b) Where the right to compensation is forfeited, OWCP shall recover
any compensation already paid for the period of forfeiture pursuant to 5
U.S.C. 8129 and other relevant statutes.
Reports of Dependents
Sec. 10.535 How are dependents defined, and what information must the employee report?
(a) Dependents in disability cases are defined in Sec. 10.405.
While the employee has one or more dependents, the employee's basic
compensation for wage loss or for permanent impairment shall be
augmented as provided in 5 U.S.C. 8110. (The rules for death claims are
found in Sec. 10.414.)
(b) An employee who is receiving augmented compensation on account
of dependents must advise OWCP immediately of any change in the number
or status of dependents. The employee should also promptly refund to
OWCP any amounts received on account of augmented compensation after the
right to receive augmented compensation has ceased. Any difference
between actual entitlement and the amount already paid beyond the date
entitlement ended is an overpayment of compensation and may be recovered
pursuant to 5 U.S.C. 8129 and other relevant statutes.
(c) An employee who is receiving augmented compensation shall be
periodically required to submit a statement as to any dependents, or to
submit supporting documents such as birth or marriage certificates or
court orders, to determine if he or she is still entitled to augmented
compensation.
Sec. 10.536 What is the penalty for failing to submit a report of dependents?
If an employee fails to submit a requested statement or supporting
document within 30 days of the date of the request, OWCP will suspend
his or her right to augmented compensation until
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OWCP receives the requested statement or supporting document. At that
time, OWCP will reinstate augmented compensation retroactive to the date
of suspension, provided that the employee is entitled to receive
augmented compensation.
Sec. 10.537 What reports are needed when compensation payments continue for children over age 18?
(a) Compensation payable on behalf of a child that would otherwise
end when the child reaches 18 years of age will continue if and for so
long as he or she is not married and is either a student as defined in 5
U.S.C. 8101(17), or physically or mentally incapable of self-support.
(b) At least twice each year, OWCP will ask an employee who receives
compensation based on the student status of a child to provide proof of
continuing entitlement to such compensation, including certification of
school enrollment.
(c) Likewise, at least twice each year, OWCP will ask an employee
who receives compensation based on a child's physical or mental
inability to support himself or herself to submit a medical report
verifying that the child's medical condition persists and that it
continues to preclude self-support.
(d) If an employee fails to submit proof within 30 days of the date
of the request, OWCP will suspend the employee's right to compensation
until the requested information is received. At that time OWCP will
reinstate compensation retroactive to the date of suspension, provided
the employee is entitled to such compensation.
Reduction and Termination of Compensation
Sec. 10.540 When and how is compensation reduced or terminated?
(a) Except as provided in paragraphs (b) and (c) of this section,
where the evidence establishes that compensation should be either
reduced or terminated, OWCP will provide the beneficiary with written
notice of the proposed action and give him or her 30 days to submit
relevant evidence or argument to support entitlement to continued
payment of compensation. This notice will include a description of the
reasons for the proposed action and a copy of the specific evidence upon
which OWCP is basing its determination. Payment of compensation will
continue until any evidence or argument submitted has been reviewed and
an appropriate decision has been issued, or until 30 days have elapsed
if no additional evidence or argument is submitted.
(b) OWCP will not provide such written notice when the beneficiary
has no reasonable basis to expect that payment of compensation will
continue. For example, when a claim has been made for a specific period
of time and that specific period expires, no written notice will be
given. Written notice will also not be given when a beneficiary dies,
when OWCP either reduces or terminates compensation upon an employee's
return to work, when OWCP terminates only medical benefits after a
physician indicates that further medical treatment is not necessary or
has ended, or when OWCP denies payment for a particular medical expense.
(c) OWCP will also not provide such written notice when compensation
is terminated, suspended or forfeited due to one of the following: A
beneficiary's conviction for fraud in connection with a claim under the
FECA; a beneficiary's incarceration based on any felony conviction; an
employee's failure to report earnings from employment or self-
employment; an employee's failure or refusal to either continue
performing suitable work or to accept an offer of suitable work; or an
employee's refusal to undergo or obstruction of a directed medical
examination or treatment for substance abuse.
Sec. 10.541 What action will OWCP take after issuing written notice of its intention to reduce or terminate compensation?
(a) If the beneficiary submits evidence or argument prior to the
issuance of the decision, OWCP will evaluate it in light of the proposed
action and undertake such further development as it may deem
appropriate, if any. Evidence or argument which is repetitious,
cumulative, or irrelevant
[[Page 48]]
will not require any further development. If the beneficiary does not
respond within 30 days of the written notice, OWCP will issue a decision
consistent with its prior notice. OWCP will not grant any request for an
extension of this 30-day period.
(b) Evidence or argument which refutes the evidence upon which the
proposed action was based will result in the continued payment of
compensation. If the beneficiary submits evidence or argument which
fails to refute the evidence upon which the proposed action was based
but which requires further development, OWCP will not provide the
beneficiary with another notice of its proposed action upon completion
of such development. Once any further development of the evidence is
completed, OWCP will either continue payment or issue a decision
consistent with its prior notice.
Subpart G_Appeals Process
Sec. 10.600 How can final decisions of OWCP be reviewed?
There are three methods for reviewing a formal decision of the OWCP
(Sec. Sec. 10.125-10.127 discuss how decisions are made). These methods
are: reconsideration by the district office; a hearing before an OWCP
hearing representative; and appeal to the Employees' Compensation
Appeals Board (ECAB). For each method there are time limitations and
other restrictions which may apply, and not all options are available
for all decisions, so the employee should consult the requirements set
forth below. Further rules governing appeals to the ECAB are found at
part 501 of this title.
Reconsiderations and Reviews by the Director
Sec. 10.605 What is reconsideration?
The FECA provides that the Director may review an award for or
against compensation upon application by an employee (or his or her
representative) who receives an adverse decision. The employee shall
exercise this right through a request to the district office. The
request, along with the supporting statements and evidence, is called
the ``application for reconsideration.''
Sec. 10.606 How does a claimant request reconsideration?
(a) An employee (or representative) seeking reconsideration should
send the application for reconsideration to the address as instructed by
OWCP in the final decision.
(b) The application for reconsideration, including all supporting
documents, must:
(1) Be submitted in writing;
(2) Set forth arguments and contain evidence that either:
(i) Shows that OWCP erroneously applied or interpreted a specific
point of law;
(ii) Advances a relevant legal argument not previously considered by
OWCP; or
(iii) Constitutes relevant and pertinent new evidence not previously
considered by OWCP.
Sec. 10.607 What is the time limit for requesting reconsideration?
(a) An application for reconsideration must be sent within one year
of the date of the OWCP decision for which review is sought. If
submitted by mail, the application will be deemed timely if postmarked
by the U.S. Postal Service within the time period allowed. If there is
no such postmark, or it is not legible, other evidence such as (but not
limited to) certified mail receipts, certificate of service, and
affidavits, may be used to establish the mailing date.
(b) OWCP will consider an untimely application for reconsideration
only if the application demonstrates clear evidence of error on the part
of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.
(c) The year in which a claimant has to timely request
reconsideration shall not include any period subsequent to an OWCP
decision for which the claimant can establish through probative medical
evidence that he or she is unable to communicate in any way and that his
or her testimony is necessary in order to obtain modification of the
decision.
[[Page 49]]
Sec. 10.608 How does OWCP decide whether to grant or deny the request for reconsideration?
(a) A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence and/or argument that
meets at least one of the standards described in Sec. 10.606(b)(2). If
reconsideration is granted, the case is reopened and the case is
reviewed on its merits (see Sec. 10.609).
(b) Where the request is timely but fails to meet at least one of
the standards described in Sec. 10.606(b)(2), or where the request is
untimely and fails to present any clear evidence of error, OWCP will
deny the application for reconsideration without reopening the case for
a review on the merits. A decision denying an application for
reconsideration cannot be the subject of another application for
reconsideration. The only review for this type of non-merit decision is
an appeal to the ECAB (see Sec. 10.625), and OWCP will not entertain a
request for reconsideration or a hearing on this decision denying
reconsideration.
Sec. 10.609 How does OWCP decide whether new evidence requires modification of the prior decision?
When application for reconsideration is granted, OWCP will review
the decision for which reconsideration is sought on the merits and
determine whether the new evidence or argument requires modification of
the prior decision.
(a) After OWCP decides to grant reconsideration, but before
undertaking the review, OWCP will send a copy of the reconsideration
application to the employer, which will have 20 days from the date sent
to comment or submit relevant documents. OWCP will provide any such
comments to the employee, who will have 20 days from the date the
comments are sent to him or her within which to comment. If no comments
are received from the employer, OWCP will proceed with the merit review
of the case.
(b) A claims examiner who did not participate in making the
contested decision will conduct the merit review of the claim. When all
evidence has been reviewed, OWCP will issue a new merit decision, based
on all the evidence in the record. A copy of the decision will be
provided to the agency.
(c) An employee dissatisfied with this new merit decision may again
request reconsideration under this subpart or appeal to the ECAB. An
employee may not request a hearing on this decision.
Sec. 10.610 What is a review by the Director?
The FECA specifies that an award for or against payment of
compensation may be reviewed at any time on the Director's own motion.
Such review may be made without regard to whether there is new evidence
or information. If the Director determines that a review of the award is
warranted (including, but not limited to circumstances indicating a
mistake of fact or law or changed conditions), the Director (at any time
and on the basis of existing evidence) may modify, rescind, decrease or
increase compensation previously awarded, or award compensation
previously denied. A review on the Director's own motion is not subject
to a request or petition and none shall be entertained.
(a) The decision whether or not to review an award under this
section is solely within the discretion of the Director. The Director's
exercise of this discretion is not subject to review by the ECAB, nor
can it be the subject of a reconsideration or hearing request.
(b) Where the Director reviews an award on his or her own motion,
any resulting decision is subject as appropriate to reconsideration, a
hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal
to ECAB is limited to a review of the merits of the resulting decision.
The Director's determination to review the award is not reviewable.
Hearings
Sec. 10.615 What is a hearing?
A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats:
An oral hearing or a review of the written record. At the discretion of
the hearing representative, an oral hearing may be conducted
[[Page 50]]
by telephone or teleconference. In addition to the evidence of record,
the employee may submit new evidence to the hearing representative.
Sec. 10.616 How does a claimant obtain a hearing?
(a) A claimant, injured on or after July 4, 1966, who has received a
final adverse decision by the district office may obtain a hearing by
writing to the address specified in the decision. The hearing request
must be sent within 30 days (as determined by postmark or other
carrier's date marking) of the date of the decision for which a hearing
is sought. The claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same
decision.
(b) The claimant may specify the type of hearing desired when making
the original hearing request. If the request does not specify a format,
OWCP will schedule an oral hearing. The claimant can request a change in
the format of the hearing by making a written request to the Branch of
Hearings and Review. OWCP will grant a request received by the Branch of
Hearings and Review within 30 days of: The date OWCP acknowledges the
initial hearing request, or the date OWCP issues a notice setting a date
for an oral hearing, in cases where the initial request was for, or was
treated as a request for, an oral hearing. A request received after
those dates will be subject to OWCP's discretion. The decision to grant
or deny a change of format is not reviewable.
Sec. 10.617 How is an oral hearing conducted?
(a) The hearing representative retains complete discretion to set
the time and place of the hearing, including the amount of time allotted
for the hearing, considering the issues to be resolved.
(b) Unless otherwise directed in writing by the claimant, the
hearing representative will mail a notice of the time and place of the
oral hearing to the claimant and any representative at least 30 days
before the scheduled date. The employer will also be mailed a notice at
least 30 days before the scheduled date.
(c) The hearing is an informal process, and the hearing
representative is not bound by common law or statutory rules of
evidence, by technical or formal rules of procedure or by section 5 of
the Administrative Procedure Act, but the hearing representative may
conduct the hearing in such manner as to best ascertain the rights of
the claimant. During the hearing process, the claimant may state his or
her arguments and present new written evidence in support of the claim.
(d) Testimony at oral hearings is recorded, then transcribed and
placed in the record. Oral testimony shall be made under oath.
(e) OWCP will furnish a transcript of the oral hearing to the
claimant and the employer, who have 20 days from the date it is sent to
comment. Any comments received from the employer shall be sent to the
claimant, who will be given an additional 20 days to comment from the
date OWCP sends any agency comments.
(f) The hearing remains open for the submittal of additional
evidence until 30 days after the hearing is held, unless the hearing
representative, in his or her sole discretion, grants an extension. Only
one such extension may be granted. A copy of the decision will be mailed
to the claimant's last known address, to any representative, and to the
employer.
(g) The hearing representative determines the conduct of the oral
hearing and may terminate the hearing at any time he or she determines
that all relevant evidence has been obtained, or because of misbehavior
on the part of the claimant and/or representative at or near the place
of the oral presentation.
Sec. 10.618 How is a review of the written record conducted?
(a) The hearing representative will review the official record and
any additional evidence submitted by the claimant and by the agency. The
hearing representative may also conduct whatever investigation is deemed
necessary. New evidence and arguments are to be submitted at any time up
to the time specified by OWCP, but they should be submitted as soon as
possible to avoid delaying the hearing process.
[[Page 51]]
(b) The claimant should submit, with his or her application for
review, all evidence or argument that he or she wants to present to the
hearing representative. A copy of all pertinent material will be sent to
the employer, which will have 20 days from the date it is sent to
comment. (Medical evidence is not considered ``pertinent'' for review
and comment by the agency, and it will therefore not be furnished to the
agency. OWCP has sole responsibility for evaluating medical evidence.)
The employer shall send any comments to the claimant, who will have 20
more days from the date of the agency's certificate of service to
comment.
Sec. 10.619 May subpoenas be issued for witnesses and documents?
A claimant may request a subpoena, but the decision to grant or deny
such a request is within the discretion of the hearing representative.
The hearing representative may issue subpoenas for the attendance and
testimony of witnesses, and for the production of books, records,
correspondence, papers or other relevant documents. Subpoenas are issued
for documents only if they are relevant and cannot be obtained by other
means, and for witnesses only where oral testimony is the best way to
ascertain the facts.
(a) A claimant may request a subpoena only as part of the hearings
process, and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must:
(1) Submit the request in writing and send it to the hearing
representative as early as possible but no later than 60 days (as
evidenced by postmark, electronic marker or other objective date mark)
after the date of the original hearing request.
(2) Explain why the testimony or evidence is directly relevant to
the issues at hand, and a subpoena is the best method or opportunity to
obtain such evidence because there are no other means by which the
documents or testimony could have been obtained.
(b) No subpoena will be issued for attendance of employees of OWCP
acting in their official capacities as decision-makers or policy
administrators. For hearings taking the form of a review of the written
record, no subpoena for the appearance of witnesses will be considered.
(c) The hearing representative issues the subpoena under his or her
own name. It may be served in person or by certified mail, return
receipt requested, addressed to the person to be served at his or her
last known principal place of business or residence. A decision to deny
a subpoena can only be appealed as part of an appeal of any adverse
decision which results from the hearing.
Sec. 10.620 Who pays the costs associated with subpoenas?
(a) Witnesses who are not employees or former employees of the
Federal Government shall be paid the same fees and mileage as paid for
like services in the District Court of the United States where the
subpoena is returnable, except that expert witnesses shall be paid a fee
not to exceed the local customary fee for such services.
(b) Where OWCP asked that the witness submit evidence into the case
record or asked that the witness attend, OWCP shall pay the fees and
mileage. Where the claimant requested the subpoena, and where the
witness submitted evidence into the record at the request of the
claimant, the claimant shall pay the fees and mileage.
Sec. 10.621 What is the employer's role when an oral hearing has been requested?
(a) The employer may send one (or more, where appropriate)
representative(s) to observe the proceeding, but the agency
representative cannot give testimony or argument or otherwise
participate in the hearing, except where the claimant or the hearing
representative specifically asks the agency representative to testify.
(b) The hearing representative may deny a request by the claimant
that the agency representative testify where the claimant cannot show
that the testimony would be relevant or where the agency representative
does not have the appropriate level of knowledge to provide such
evidence at the hearing. The employer may also comment on the hearing
transcript, as described in Sec. 10.617(e).
[[Page 52]]
Sec. 10.622 May a claimant withdraw a request for or postpone a hearing?
(a) The claimant and/or representative may withdraw the hearing
request at any time up to and including the day the hearing is held, or
the decision issued. Withdrawing the hearing request means the record is
returned to the jurisdiction of the district office and no further
requests for a hearing on the underlying decision will be considered.
(b) OWCP will entertain any reasonable request for scheduling the
oral hearing, but such requests should be made at the time of the
original application for hearing. Scheduling is at the sole discretion
of the hearing representative, and is not reviewable. Once the oral
hearing is scheduled and OWCP has mailed appropriate written notice to
the claimant, the oral hearing cannot be postponed at the claimant's
request for any reason except those stated in paragraph (c) of this
section, unless the hearing representative can reschedule the hearing on
the same docket (that is, during the same hearing trip). When the
request to postpone a scheduled hearing does not meet the test of
paragraph (c) of this section and cannot be accommodated on the docket,
no further opportunity for an oral hearing will be provided. Instead,
the hearing will take the form of a review of the written record and a
decision issued accordingly. In the alternative, a teleconference may be
substituted for the oral hearing at the discretion of the hearing
representative.
(c) Where the claimant is hospitalized for a reason which is not
elective, or where the death of the claimant's parent, spouse, or child
prevents attendance at the hearing, a postponement may be granted upon
proper documentation.
Review by the Employees' Compensation Appeals Board (ECAB)
Sec. 10.625 What kinds of decisions may be appealed?
Only final decisions of OWCP may be appealed to the ECAB. However,
certain types of final decisions, described in this part as not subject
to further review, cannot be appealed to the ECAB. Decisions that are
not appealable to the ECAB include: Decisions concerning the amounts
payable for medical services, decisions concerning exclusion and
reinstatement of medical providers, decisions by the Director to review
an award on his or her own motion, and denials of subpoenas independent
of the appeal of the underlying decision. In appeals before the ECAB,
attorneys from the Office of the Solicitor of Labor shall represent
OWCP.
Sec. 10.626 Who has jurisdiction of cases on appeal to the ECAB?
While a case is on appeal to the ECAB, OWCP has no jurisdiction over
the claim with respect to issues which directly relate to the issue or
issues on appeal. The OWCP continues to administer the claim and retains
jurisdiction over issues unrelated to the issue or issues on appeal and
issues which arise after the appeal as a result of ongoing
administration of the case. Such issues would include, for example, the
ability to terminate benefits where an individual returns to work while
an appeal is pending at the ECAB.
Subpart H_Special Provisions
Representation
Sec. 10.700 May a claimant designate a representative?
(a) The claims process under the FECA is informal. Unlike many
workers' compensation laws, the employer is not a party to the claim,
and OWCP acts as an impartial evaluator of the evidence. Nevertheless, a
claimant may appoint one individual to represent his or her interests,
but the appointment must be in writing.
(b) There can be only one representative at any one time, so after
one representative has been properly appointed, OWCP will not recognize
another individual as representative until the claimant withdraws the
authorization of the first individual. In addition, OWCP will recognize
only certain types of individuals (see Sec. 10.701).
(c) A properly appointed representative who is recognized by OWCP
may make a request or give direction to OWCP regarding the claims
process, including a hearing. This authority includes presenting or
eliciting evidence,
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making arguments on facts or the law, and obtaining information from the
case file, to the same extent as the claimant. Any notice requirement
contained in this part or the FECA is fully satisfied if served on the
representative, and has the same force and effect as if sent to the
claimant.
Sec. 10.701 Who may serve as a representative?
A claimant may authorize any individual to represent him or her in
regard to a claim under the FECA, unless that individual's service as a
representative would violate any applicable provision of law (such as 18
U.S.C. 205 and 208). A Federal employee may act as a representative
only:
(a) On behalf of immediate family members, defined as a spouse,
children, parents, and siblings of the representative, provided no fee
or gratuity is charged; or
(b) While acting as a union representative, defined as any
officially sanctioned union official, and no fee or gratuity is charged.
Sec. 10.702 How are fees for services paid?
A representative may charge the claimant a fee and other costs
associated with the representation before OWCP. The claimant is solely
responsible for paying the fee and other charges. The claimant will not
be reimbursed by OWCP, nor is OWCP in any way liable for the amount of
the fee.
Administrative costs (mailing, copying, messenger services, travel
and the like, but not including secretarial services, paralegal and
other activities) need not be approved before the representative
collects them. Before any fee for services can be collected, however,
the fee must be approved by the Secretary. (Collecting a fee without
this approval may constitute a misdemeanor under 18 U.S.C. 292.)
Sec. 10.703 How are fee applications approved?
(a) Fee Application. (1) The representative must submit the fee
application to the district office and/or the Branch of Hearings and
Review, according to where the work for which the fee is charged was
performed. The application shall contain the following:
(i) An itemized statement showing the representative's hourly rate,
the number of hours worked and specifically identifying the work
performed and a total amount charged for the representation (excluding
administrative costs).
(ii) A statement of agreement or disagreement with the amount
charged, signed by the claimant. The statement must also acknowledge
that the claimant is aware that he or she must pay the fees and that
OWCP is not responsible for paying the fee or other costs.
(2) An incomplete application will be returned with no further
comment.
(b) Approval where there is no dispute. Where a fee application is
accompanied by a signed statement indicating the claimant's agreement
with the fee as described in paragraph (a)(1)(ii) of this section, the
application is deemed approved.
(c) Disputed requests. (1) Where the claimant disagrees with the
amount of the fee, as indicated in the statement accompanying the
submittal, OWCP will evaluate the objection and decide whether or not to
approve the request. OWCP will provide a copy of the request to the
claimant and ask him or her to submit any further information in support
of the objection within 15 days from the date the request is forwarded.
After that period has passed, OWCP will evaluate the information
received to determine whether the amount of the fee is substantially in
excess of the value of services received by looking at the following
factors:
(i) Usefulness of the representative's services;
(ii) The nature and complexity of the claim;
(iii) The actual time spent on development and presentation of the
claim; and
(iv) Customary local charges for similar services.
(2) Where the claimant disputes the representative's request and
files an objection with OWCP, an appealable decision will be issued.
[[Page 54]]
Third Party Liability
Sec. 10.705 When must an employee or other FECA beneficiary take action against a third party?
(a) If an injury or death for which benefits are payable under the
FECA is caused, wholly or partially, by someone other than a Federal
employee acting within the scope of his or her employment, the claimant
can be required to take action against that third party.
(b) The Office of the Solicitor of Labor (SOL) is hereby delegated
authority to administer the subrogation aspects of certain FECA claims
for OWCP. Either OWCP or SOL can require a FECA beneficiary to assign
his or her claim for damages to the United States or to prosecute the
claim in his or her own name.
Sec. 10.706 How will a beneficiary know if OWCP or SOL has determined that action against a third party is required?
When OWCP determines that an employee or other FECA beneficiary must
take action against a third party, it will notify the employee or
beneficiary in writing. If the case is transferred to SOL, a second
notification may be issued.
Sec. 10.707 What must a FECA beneficiary who is required to take action
against a third party do to satisfy the requirement that the claim be ``prosecuted''?
At a minimum, a FECA beneficiary must do the following:
(a) Seek damages for the injury or death from the third party,
either through an attorney or on his or her own behalf;
(b) Either initiate a lawsuit within the appropriate statute of
limitations period or obtain a written release of this obligation from
OWCP or SOL unless recovery is possible through a negotiated settlement
prior to filing suit;
(c) Refuse to settle or dismiss the case for any amount less than
the amount necessary to repay OWCP's refundable disbursements, as
defined in Sec. 10.714, without receiving permission from OWCP or SOL;
(d) Provide periodic status updates and other relevant information
in response to requests from OWCP or SOL;
(e) Submit detailed information about the amount recovered and the
costs of the suit on a ``Statement of Recovery'' form approved by OWCP;
and
(f) Pay any required refund.
Sec. 10.708 Can a FECA beneficiary who refuses to comply with a request
to assign a claim to the United States or to prosecute the claim in his or her own
name be penalized?
When a FECA beneficiary refuses a request to either assign a claim
or prosecute a claim in his or her own name, OWCP may determine that he
or she has forfeited his or her right to all past or future compensation
for the injury with respect to which the request is made. Alternatively,
OWCP may also suspend the FECA beneficiary's compensation payments until
he or she complies with the request.
Sec. 10.709 What happens if a beneficiary directed by OWCP or SOL to take
action against a third party does not believe that a claim can be successfully
prosecuted at a reasonable cost?
If a beneficiary consults an attorney and is informed that a suit
for damages against a third party for the injury or death for which
benefits are payable is unlikely to prevail or that the costs of such a
suit are not justified by the potential recovery, he or she should
request that OWCP or SOL release him or her from the obligation to
proceed. This request should be in writing and provide evidence of the
attorney's opinion. If OWCP or SOL agrees, the beneficiary will not be
required to take further action against the third party.
Sec. 10.710 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which benefits are payable under the
FECA be reported to OWCP or SOL?
Any person who has filed a FECA claim that has been accepted by OWCP
(whether or not compensation has been paid), or who has received FECA
benefits in connection with a claim filed by another, is required to
notify OWCP or SOL of the receipt of money or other property as a result
of a settlement or
[[Page 55]]
judgment in connection with the circumstances of that claim. This
includes an injured employee, and in the case of a claim involving the
death of an employee, a spouse, children or other dependents entitled to
receive survivor's benefits. OWCP or SOL should be notified in writing
within 30 days of the receipt of such money or other property or the
acceptance of the FECA claim, whichever occurs later.
Sec. 10.711 How much of any settlement or judgment must be paid to the United States?
The statute permits a FECA beneficiary to retain, as a minimum, one-
fifth of the net amount of money or property remaining after a
reasonable attorney's fee and the costs of litigation have been deducted
from the third-party recovery. The United States shares in the
litigation expense by allowing the beneficiary to retain, at the time of
distribution, an amount equivalent to a reasonable attorney's fee
proportionate to the refund due the United States. After the refund owed
to the United States is calculated, the FECA beneficiary retains any
surplus remaining, and this amount is credited, dollar for dollar,
against future compensation for the same injury, as defined in Sec.
10.719. OWCP will resume the payment of compensation only after the FECA
beneficiary has been awarded compensation which exceeds the amount of
the surplus.
(a) The refund to the United States is calculated as follows, using
the Statement of Recovery form approved by OWCP:
(1) Determine the gross recovery as set forth in Sec. 10.712;
(2) Subtract the amount of attorney's fees actually paid, but not
more than the maximum amount of attorney's fees considered by OWCP or
SOL to be reasonable, from the gross recovery (Subtotal A);
(3) Subtract the costs of litigation, as allowed by OWCP or SOL
(Subtotal B);
(4) Subtract one fifth of Subtotal B from Subtotal B (Subtotal C);
(5) Compare Subtotal C and the refundable disbursements as defined
in Sec. 10.714. Subtotal D is the lower of the two amounts.
(6) Multiply Subtotal D by a percentage that is determined by
dividing the gross recovery into the amount of attorney's fees actually
paid, but not more than the maximum amount of attorney's fees considered
by OWCP or SOL to be reasonable, to determine the Government's allowance
for attorney's fees, and subtract this amount from Subtotal D.
(b) The credit against future benefits (also referred to as the
surplus) is calculated as follows:
(1) If Subtotal C, as calculated according to paragraph (a)(4) of
this section, is less than the refundable disbursements, as defined in
Sec. 10.714, there is no credit to be applied against future benefits;
(2) If Subtotal C is greater than the refundable disbursements, the
credit against future benefits (or surplus) amount is determined by
subtracting the refundable disbursements from Subtotal C.
(c) An example of how these calculations are made follows. In this
example, a Federal employee sues another party for causing injuries for
which the employee has received $22,000 in benefits under the FECA,
subject to refund. The suit is settled and the injured employee receives
$100,000, all of which was for his injury. The injured worker paid
attorney's fees of $25,000 and costs for the litigation of $3,000.
(1) Gross recovery........................................... $100,000
Attorney's fees.......................................... -25,000
----------
(2) Subtotal A............................................... 75,000
(3) Costs of suit............................................ -3,000
----------
Subtotal B................................................. 72,000
One-fifth of Subtotal B.................................... -14,400
----------
(4) Subtotal C............................................... 57,600
Refundable Disbursements................................... 22,000
(5) Subtotal D (lower of Subtotal C or refundable 22,000
disbursements)..............................................
(6) Government's allowance for attorney's fees [25,000 / -5,500
100,000) x 22,000] (attorney's fees divided by gross
recovery then multiplied by Subtotal D).....................
----------
Refund to the United States................................ 16,500
(7) Credit against future benefits [57,600 - 22,000] 35,600
(Subtotal C minus refundable disbursements).................
[[Page 56]]
Sec. 10.712 What amounts are included in the gross recovery?
(a) When a settlement or judgment is paid to, or for, one
individual, the entire amount, except for the portion representing
damage to real or personal property, is reported as the gross recovery.
If a settlement or judgment is paid to or for more than one individual
or in more than one capacity, such as a joint payment to a husband and
wife for personal injury and loss of consortium or a payment to a spouse
representing both loss of consortium and wrongful death, the gross
recovery to be reported is the amount allocated to the injured employee.
If a judge or jury specifies the percentage of a contested verdict
attributable to each of several plaintiffs, OWCP or SOL will accept that
division.
(b) In any other case, where a judgment or settlement is paid to or
on behalf of more than one individual, OWCP or SOL will determine the
appropriate amount of the FECA beneficiary's gross recovery and advise
the beneficiary of its determination. FECA beneficiaries may accept
OWCP's or SOL's determination or demonstrate good cause for a different
allocation. Whether to accept a specific allocation is at the discretion
of SOL or OWCP.
Sec. 10.713 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time) treated for purposes of
reporting the gross recovery?
In this situation, the gross recovery to be reported is the present
value of the right to receive all of the payments included in the
structured settlement, allocated in the case of multiple recipients in
the same manner as single payment recoveries.
Sec. 10.714 What amounts are included in the refundable disbursements?
The refundable disbursements of a specific claim consist of the
total money paid by OWCP from the Employees' Compensation Fund with
respect to that claim to or on behalf of a FECA beneficiary, less
charges for any medical file review (i.e., the physician does not
examine the employee) done at the request of OWCP. Charges for medical
examinations also may be subtracted if the FECA beneficiary establishes
that the examinations were required to be made available to the employee
under a statute other than the FECA by the employing agency or at the
employing agency's cost.
Sec. 10.715 Is a beneficiary required to pay interest on the amount of the refund due to the United States?
If the refund due to the United States is not submitted within 30
days of receiving a request for payment from SOL or OWCP, interest shall
accrue on the refund due to the United States from the date of the
request. The rate of interest assessed shall be the rate of the current
value of funds to the United States Treasury as published in the Federal
Register (as of the date the request for payment is sent). Waiver of the
collection of interest shall be in accordance with the provisions of the
Department of Labor regulations on Federal Claims Collection governing
waiver of interest, 29 CFR 20.61.
Sec. 10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under the FECA?
If the required refund is not paid within 30 days of the request for
payment, OWCP can, in its discretion, collect the refund by withholding
all or part of any payments currently payable to the beneficiary under
the FECA with respect to any injury. The waiver provisions of Sec. Sec.
10.432 through 10.440 do not apply to such determinations.
Sec. 10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by the FECA a gross recovery
that must be reported to OWCP or SOL?
Since an injury caused by medical malpractice in treating an injury
covered by the FECA is also an injury covered under the FECA, any
recovery in a suit alleging such an injury is treated as a gross
recovery that must be reported to OWCP or SOL.
[[Page 57]]
Sec. 10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that must be reported to
OWCP or SOL?
Since payments received by a FECA beneficiary pursuant to an
insurance policy purchased by someone other than a liable third party
are not payments in satisfaction of liability for causing an injury
covered by the FECA, they are not considered a gross recovery covered by
section 8132 that requires filing a Statement of Recovery and paying any
required refund.
Sec. 10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on a single FECA claim
be attributed to different conditions for purposes of
calculating the refund or credit owed to the United States?
(a) All wounds, diseases or other medical conditions accepted by
OWCP in connection with a single claim are treated as the same injury
for the purpose of computing any required refund and any credit against
future benefits in connection with the receipt of a recovery from a
third party, except that an injury caused by medical malpractice in
treating an injury covered under the FECA will be treated as a separate
injury for purposes of section 8132.
(b) If an injury covered under the FECA is caused under
circumstances creating a legal liability in more than one person, other
than the United States, to pay damages, OWCP or SOL will determine
whether recoveries received from one or more third parties should be
attributed to separate conditions for which compensation is payable in
connection with a single FECA claim. If such an attribution is both
practicable and equitable, as determined by OWCP or SOL, in its
discretion, the conditions will be treated as separate injuries for
purposes of calculating the refund and credit owed to the United States
under section 8132.
Federal Grand and Petit Jurors
Sec. 10.725 When is a Federal grand or petit juror covered under the FECA?
(a) Federal grand and petit jurors are covered under the FECA when
they are in performance of duty as a juror, which includes that time
when a juror is:
(1) In attendance at court pursuant to a summons;
(2) In deliberation;
(3) Sequestered by order of a judge; or
(4) At a site, by order of the court, for the taking of a view.
(b) A juror is not considered to be in the performance of duty while
traveling to or from home in connection with the activities enumerated
in paragraphs (a) (1) through (4) of this section.
Sec. 10.726 When does a juror's entitlement to disability compensation begin?
Pursuant to 28 U.S.C. 1877, entitlement to disability compensation
does not commence until the day after the date of termination of service
as a juror.
Sec. 10.727 What is the pay rate of jurors for compensation purposes?
For the purpose of computing compensation payable for disability or
death, a juror is deemed to receive pay at the minimum rate for Grade
GS-2 of the General Schedule unless his or her actual pay as an
``employee'' of the United States while serving on court leave is
higher, in which case the pay rate for compensation purposes is
determined in accordance with 5 U.S.C. 8114.
Peace Corps Volunteers
Sec. 10.730 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the United States?
(a) Any injury sustained by a volunteer or volunteer leader while he
or she is located abroad shall be presumed to have been sustained in the
performance of duty, and any illness contracted during such time shall
be presumed to be
[[Page 58]]
proximately caused by the employment. However, this presumption will be
rebutted by evidence that:
(1) The injury or illness was caused by the claimant's willful
misconduct, intent to bring about the injury or death of self or
another, or was proximately caused by the intoxication by alcohol or
illegal drugs of the injured claimant; or
(2) The illness is shown to have pre-existed the period of service
abroad; or
(3) The injury or illness claimed is a manifestation of symptoms of,
or consequent to, a pre-existing congenital defect or abnormality.
(b) If the presumption that an injury or illness was sustained in
the performance of duty is rebutted as provided by paragraph (a) of this
section, the claimant has the burden of proving by the submittal of
substantial and probative evidence that such injury or illness was
sustained in the performance of duty with the Peace Corps.
(c) If an injury or illness, or episode thereof, comes within one of
the exceptions described in paragraph (a) (2) or (3) of this section,
the claimant may nonetheless be entitled to compensation. This will be
so provided he or she meets the burden of proving by the submittal of
substantial, probative and rationalized medical evidence that the
illness or injury was proximately caused by factors or conditions of
Peace Corps service, or that it was materially aggravated, accelerated
or precipitated by factors of Peace Corps service.
Sec. 10.731 What is the pay rate of Peace Corps volunteers and volunteer leaders for compensation purposes?
The pay rate for these claimants is defined as the pay rate in
effect on the date following separation, provided that the rate equals
or exceeds the pay rate on the date of injury. It is defined in
accordance with 5 U.S.C. 8142(a), not 8101(4).
Non-Federal Law Enforcement Officers
Sec. 10.735 When is a non-Federal law enforcement officer (LEO) covered under the FECA?
(a) A law enforcement officer (officer) includes an employee of a
State or local Government, the Governments of U.S. possessions and
territories, or an employee of the United States pensioned or
pensionable under sections 521-535 of Title 4, D.C. Code, whose
functions include the activities listed in 5 U.S.C. 8191.
(b) Benefits are available to officers who are not ``employees''
under 5 U.S.C. 8101, and who are determined in the discretion of OWCP to
have been engaged in the activities listed in 5 U.S.C. 8191 with respect
to the enforcement of crimes against the United States. Individuals who
only perform administrative functions in support of officers are not
considered officers.
(c) Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in
this part, the provisions of the FECA and of subparts A, B, and D
through I of this part apply to officers.
Sec. 10.736 What are the time limits for filing a LEO claim?
OWCP must receive a claim for benefits under 5 U.S.C. 8191 within
five years after the injury or death. This five-year limitation is not
subject to waiver. The tolling provisions of 5 U.S.C. 8122(d) do not
apply to these claims.
Sec. 10.737 How is a LEO claim filed, and who can file a LEO claim?
A claim for injury or occupational disease should be filed on Form
CA-721; a death claim should be filed on Form CA-722. All claims should
be submitted to the officer's employer for completion and forwarding to
OWCP. A claim may be filed by the officer, the officer's survivor, or
any person or association authorized to act on behalf of an officer or
an officer's survivors.
Sec. 10.738 Under what circumstances are benefits payable in LEO claims?
(a) Benefits are payable when an officer is injured while
apprehending, or attempting to apprehend, an individual for the
commission of a Federal crime. However, either an actual Federal crime
must be in progress or have been committed, or objective evidence (of
which the officer is aware at the time of injury) must exist that a
potential Federal crime was in progress or had already been committed.
The actual or
[[Page 59]]
potential Federal crime must be an integral part of the criminal
activity toward which the officer's actions are directed. The fact that
an injury to an officer is related in some way to the commission of a
Federal crime does not necessarily bring the injury within the coverage
of the FECA. The FECA is not intended to cover officers who are merely
enforcing local laws.
(b) For benefits to be payable when an officer is injured
preventing, or attempting to prevent, a Federal crime, there must be
objective evidence that a Federal crime is about to be committed. An
officer's belief, unsupported by objective evidence, that he or she is
acting to prevent the commission of a Federal crime will not result in
coverage. Moreover, the officer's subjective intent, as measured by all
available evidence (including the officer's own statements and
testimony, if available), must have been directed toward the prevention
of a Federal crime. In this context, an officer's own statements and
testimony are relevant to, but do not control, the determination of
coverage.
Sec. 10.739 What kind of objective evidence of a potential Federal crime must exist for coverage to be extended?
Based on the facts available at the time of the event, the officer
must have an awareness of sufficient information which would lead a
reasonable officer, under the circumstances, to conclude that a Federal
crime was in progress, or was about to occur. This awareness need not
extend to the precise particulars of the crime (the section of Title 18,
United States Code, for example), but there must be sufficient evidence
that the officer was in fact engaged in actual or attempted apprehension
of a Federal criminal or prevention of a Federal crime.
Sec. 10.740 In what situations will OWCP automatically presume that a law enforcement officer is covered by the FECA?
(a) Where an officer is detailed by a competent State or local
authority to assist a Federal law enforcement authority in the
protection of the President of the United States, or any other person
actually provided or entitled to U.S. Secret Service protection,
coverage will be extended.
(b) Coverage for officers of the U.S. Park Police and those officers
of the Uniformed Division of the U.S. Secret Service who participate in
the District of Columbia Retirement System is adjudicated under the
principles set forth in paragraph (a) of this section, and does not
extend to numerous tangential activities of law enforcement (for
example, reporting to work, changing clothes). However, officers of the
Non-Uniformed Division of the U.S. Secret Service who participate in the
District of Columbia Retirement System are covered under the FECA during
the performance of all official duties.
Sec. 10.741 How are benefits calculated in LEO claims?
(a) Except for continuation of pay, eligible officers and survivors
are entitled to the same benefits as if the officer had been an employee
under 5 U.S.C. 8101. However, such benefits may be reduced or adjusted
as OWCP in its discretion may deem appropriate to reflect comparable
benefits which the officer or survivor received or would have been
entitled to receive by virtue of the officer's employment.
(b) For the purpose of this section, a comparable benefit includes
any benefit that the officer or survivor is entitled to receive because
of the officer's employment, including pension and disability funds,
State workers' compensation payments, Public Safety Officers' Benefits
Act payments, and State and local lump-sum payments. Health benefits
coverage and proceeds of life insurance policies purchased by the
employer are not considered to be comparable benefits.
(c) The FECA provides that, where an officer receives comparable
benefits, compensation benefits are to be reduced proportionally in a
manner that reflects the relative percentage contribution of the officer
and the officer's employer to the fund which is the source of the
comparable benefit. Where the source of the comparable benefit is a
retirement or other system which is not fully funded, the calculation of
the amount of the reduction will be based on a per capita comparison
between the contribution by the
[[Page 60]]
employer and the contribution by all covered officers during the year
prior to the officer's injury or death.
(d) The non-receipt of compensation during a period where a dual
benefit (such as a lump-sum payment on the death of an officer) is being
offset against compensation entitlement does not result in an adjustment
of the respective benefit percentages of remaining beneficiaries because
of a cessation of compensation under 5 U.S.C. 8133(c).
Subpart I_Information for Medical Providers
Medical Records and Bills
Sec. 10.800 What kind of medical records must providers keep?
Agency medical officers, private physicians and hospitals are
required to keep records of all cases treated by them under the FECA so
they can supply OWCP with a history of the injury, a description of the
nature and extent of injury, the results of any diagnostic studies
performed, the nature of the treatment rendered and the degree of any
impairment and/or disability arising from the injury.
Sec. 10.801 How are medical bills to be submitted?
(a) All charges for medical and surgical treatment, appliances or
supplies furnished to injured employees, except for treatment and
supplies provided by nursing homes, shall be supported by medical
evidence as provided in Sec. 10.800. The physician or provider shall
itemize the charges on the standard Health Insurance Claim Form, HCFA
1500 or OWCP 1500, (for professional charges), the UB-92 (for
hospitals), the Universal Claim Form (for pharmacies), or other form as
warranted, and submit the form promptly to OWCP.
(b) The provider shall identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the Health Care
Financing Administration Common Procedure Coding System (HCPCS) code,
the National Drug Code (NDC), or the Revenue Center Code (RCC), with a
brief narrative description. Where no code is applicable, a detailed
description of services performed should be provided.
(c) The provider shall also state each diagnosed condition and
furnish the corresponding diagnostic code using the ``International
Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-
CM), or as revised. A separate bill shall be submitted when the employee
is discharged from treatment or monthly, if treatment for the work-
related condition is necessary for more than 30 days.
(1)(i) Hospitals shall submit charges for medical and surgical
treatment or supplies promptly to OWCP on the Uniform Bill (UB-92). The
provider shall identify each outpatient radiology service, outpatient
pathology service and physical therapy service performed, using HCPCS/
CPT codes with a brief narrative description. The charge for each
individual service, or the total charge for all identical services,
should also appear in the UB-92.
(ii) Other outpatient hospital services for which HCPCS/CPT codes
exist shall also be coded individually using the coding scheme noted in
this paragraph. Services for which there are no HCPCS/CPT codes
available can be presented using the RCCs described in the ``National
Uniform Billing Data Elements Specifications'', current edition. The
provider shall also furnish the diagnostic code using the ICD-9-CM. If
the outpatient hospital services include surgical and/or invasive
procedures, the provider shall code each procedure using the proper CPT/
HCPCS codes and furnishing the corresponding diagnostic codes using the
ICD-9-CM.
(2) Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on the Universal Claim Form and submit them
promptly to OWCP. Bills for prescription medications must include the
NDC assigned to the product, the generic or trade name of the drug
provided, the prescription number, the quantity provided, and the date
the prescription was filled.
(3) Nursing homes shall itemize charges for appliances, supplies or
services on the provider's billhead stationery and submit them promptly
to OWCP.
(d) By submitting a bill and/or accepting payment, the provider
signifies
[[Page 61]]
that the service for which reimbursement is sought was performed as
described and was necessary. In addition, the provider thereby agrees to
comply with all regulations set forth in this subpart concerning the
rendering of treatment and/or the process for seeking reimbursement for
medical services, including the limitation imposed on the amount to be
paid for such services.
(e) In summary, bills submitted by providers must: be itemized on
the Health Insurance Claim Form (for physicians), the UB-92 (for
hospitals), or the Universal Claim Form (for pharmacies); contain the
signature or signature stamp of the provider; and identify the
procedures using HCPCS/CPT codes, RCCs, or NDCs. Otherwise, OWCP may
return the bill to the provider for correction and resubmission.
Sec. 10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of wages, and incidental
expenses?
(a) If an employee has paid bills for medical, surgical or dental
services, supplies or appliances due to an injury sustained in the
performance of duty, he or she may submit an itemized bill on the Health
Insurance Claim Form, HCFA 1500 or OWCP 1500, together with a medical
report as provided in Sec. 10.800, to OWCP for consideration.
(1) The provider of such service shall state each diagnosed
condition and furnish the applicable ICD-9-CM code and identify each
service performed using the applicable HCPCS/CPT code, with a brief
narrative description of the service performed, or, where no code is
applicable, a detailed description of that service.
(2) The bill must be accompanied by evidence that the provider
received payment for the service from the employee and a statement of
the amount paid. Acceptable evidence that payment was received includes,
but is not limited to, a signed statement by the provider, a mechanical
stamp or other device showing receipt of payment, a copy of the
employee's canceled check (both front and back) or a copy of the
employee's credit card receipt.
(b) If services were provided by a hospital, pharmacy or nursing
home, the employee should submit the bill in accordance with the
provisions of Sec. 10.801(a). Any request for reimbursement must be
accompanied by evidence, as described in paragraph (a) of this section,
that the provider received payment for the service from the employee and
a statement of the amount paid.
(c) OWCP may waive the requirements of paragraphs (a) and (b) of
this section if extensive delays in the filing or the adjudication of a
claim make it unusually difficult for the employee to obtain the
required information.
(d) OWCP will not accept copies of bills for reimbursement unless
they bear the original signature of the provider, with evidence of
payment. Payment for medical and surgical treatment, appliances or
supplies shall in general be no greater than the maximum allowable
charge for such service determined by the Director, as set forth in
Sec. 10.805.
(e) An employee will be only partially reimbursed for a medical
expense if the amount he or she paid to a provider for the service
exceeds the maximum allowable charge set by the Director's schedule. If
this happens, OWCP shall advise the employee of the maximum allowable
charge for the service in question and of his or her responsibility to
ask the provider to refund to the employee, or credit to the employee's
account, the amount he or she paid which exceeds the maximum allowable
charge. The provider may request reconsideration of the fee
determination as set forth in Sec. 10.812.
(f) If the provider fails to make appropriate refund to the
employee, or to credit the employee's account, within 60 days after the
employee requests a refund of any excess amount, or the date of a
subsequent reconsideration decision which continues to disallow all or a
portion of the appealed amount, OWCP shall initiate exclusion procedures
as provided by Sec. 10.815.
(g) If the provider does not refund to the employee or credit to his
or her account the amount of money paid in excess of the charge which
OWCP allows, the employee should submit documentation of the attempt to
obtain such refund or credit to OWCP. OWCP may make reasonable
reimbursement
[[Page 62]]
to the employee after reviewing the facts and circumstances of the case.
Sec. 10.803 What are the time limitations on OWCP's payment of bills?
OWCP will pay providers and reimburse employees promptly for all
bills received on an approved form and in a timely manner. However, no
bill will be paid for expenses incurred if the bill is submitted more
than one year beyond the end of the calendar year in which the expense
was incurred or the service or supply was provided, or more than one
year beyond the end of the calendar year in which the claim was first
accepted as compensable by OWCP, whichever is later.
Medical Fee Schedule
Sec. 10.805 What services are covered by the OWCP fee schedule?
(a) Payment for medical and other health services furnished by
physicians, hospitals and other providers for work-related injuries
shall not exceed a maximum allowable charge for such service as
determined by the Director, except as provided in this section.
(b) The schedule of maximum allowable charges does not apply to
charges for services provided in nursing homes, but it does apply to
charges for treatment furnished in a nursing home by a physician or
other medical professional.
(c) The schedule of maximum allowable charges also does not apply to
charges for appliances, supplies, services or treatment furnished by
medical facilities of the U.S. Public Health Service or the Departments
of the Army, Navy, Air Force and Veterans Affairs.
Sec. 10.806 How are the maximum fees defined?
For professional medical services, the Director shall maintain a
schedule of maximum allowable fees for procedures performed in a given
locality. The schedule shall consist of: An assignment of a value to
procedures identified by Health Care Financing Administration Common
Procedure Coding System/Current Procedural Terminology (HCPCS/CPT) code
which represents the relative skill, effort, risk and time required to
perform the procedure, as compared to other procedures of the same
general class; an index based on a relative value scale that considers
skill, labor, overhead, malpractice insurance and other related costs;
and a monetary value assignment (conversion factor) for one unit of
value in each of the categories of service.
Sec. 10.807 How are payments for particular services calculated?
Payment for a procedure identified by a HCPCS/CPT code shall not
exceed the amount derived by multiplying the relative values for that
procedure by the geographic indices for services in that area and by the
dollar amount assigned to one unit in that category of service.
(a) The ``locality'' which serves as a basis for the determination
of average cost is defined by the Bureau of Census Metropolitan
Statistical Areas. The Director shall base the determination of the
relative per capita cost of medical care in a locality using information
about enrollment and medical cost per county, provided by the Health
Care Financing Administration (HCFA).
(b) The Director shall assign the relative value units (RVUs)
published by HCFA to all services for which HCFA has made assignments,
using the most recent revision. Where there are no RVUs assigned to a
procedure, the Director may develop and assign any RVUs that he or she
considers appropriate. The geographic adjustment factor shall be that
designated by Geographic Practice Cost Indices for Metropolitan
Statistical Areas as devised for HCFA and as updated or revised by HCFA
from time to time. The Director will devise conversion factors for each
category of service, and in doing so may adapt HCFA conversion factors
as appropriate using OWCP's processing experience and internal data.
(c) For example, if the unit values for a particular surgical
procedure are 2.48 for physician's work (W), 3.63 for practice expense
(PE), and 0.48 for malpractice insurance (M), and the dollar value
assigned to one unit in that category of service (surgery) is $61.20,
then the maximum allowable charge for one performance of that procedure
is the
[[Page 63]]
product of the three RVUs times the corresponding geographical indices
for the locality times the conversion factor. If the geographic indices
for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then the
maximum payment calculation is:
[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20
[2.45 + 3.44 + .56] x $61.20
6.45 x $61.20 = $394.74
Sec. 10.808 Does the fee schedule apply to every kind of procedure?
Where the time, effort and skill required to perform a particular
procedure vary widely from one occasion to the next, the Director may
choose not to assign a relative value to that procedure. In this case
the allowable charge for the procedure will be set individually based on
consideration of a detailed medical report and other evidence. At its
discretion, OWCP may set fees without regard to schedule limits for
specially authorized consultant examinations, for examinations performed
under 5 U.S.C. 8123, and for other specially authorized services.
Sec. 10.809 How are payments for medicinal drugs determined?
Payment for medicinal drugs prescribed by physicians shall not
exceed the amount derived by multiplying the average wholesale price of
the medication by the quantity or amount provided, plus a dispensing
fee.
(a) All prescription medications identified by National Drug Code
(NDC) will be assigned an average wholesale price representing the
product's nationally recognized wholesale price as determined by surveys
of manufacturers and wholesalers. The Director will establish the
dispensing fee.
(b) The NDCs, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.
Sec. 10.810 How are payments for inpatient medical services determined?
(a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Prospective Payment
System (PPS) devised by HCFA (42 CFR parts 412, 413, 424, 485, and 489).
Using this system, payment is derived by multiplying the diagnosis-
related group (DRG) weight assigned to the hospital discharge by the
provider-specific factors.
(1) All hospital discharges will be classified according to the DRGs
prescribed by the HCFA in the form of the DRG Grouper software program.
On this list, each DRG represents the average resources necessary to
provide care in a case in that DRG relative to the national average of
resources consumed per case.
(2) The provider-specific factors will be provided by HCFA in the
form of their PPS Pricer software program. The software takes into
consideration the type of facility, census division, actual geographic
location (MSA) of the hospital, case mix cost per discharge, number of
hospital beds, intern/beds ratio, operating cost to charge ratio, and
other factors used by HCFA to determine the specific rate for a hospital
discharge under their PPS. The Director may devise price adjustment
factors as appropriate using OWCP's processing experience and internal
data.
(3) OWCP will base payments to facilities excluded from HCFA's PPS
on consideration of detailed medical reports and other evidence.
(4) The Director shall review the pre-determined hospital rates at
least once a year, and may adjust any or all components when he or she
deems it necessary or appropriate.
(b) The Director shall review the schedule of fees at least once a
year, and may adjust the schedule or any of its components when he or
she deems it necessary or appropriate.
Sec. 10.811 When and how are fees reduced?
(a) OWCP shall accept a provider's designation of the code to
identify a billed procedure or service if the code is consistent with
medical reports and other evidence. Where no code is supplied, OWCP may
determine the code based on the narrative description of the procedure
on the billing form and in associated medical reports. OWCP will pay no
more than the maximum allowable fee for that procedure.
[[Page 64]]
(b) If the charge submitted for a service supplied to an injured
employee exceeds the maximum amount determined to be reasonable
according to the schedule, OWCP shall pay the amount allowed by the
schedule for that service and shall notify the provider in writing that
payment was reduced for that service in accordance with the schedule.
OWCP shall also notify the provider of the method for requesting
reconsideration of the balance of the charge.
Sec. 10.812 If OWCP reduces a fee, may a provider request reconsideration of the reduction?
(a) A physician or other provider whose charge for service is only
partially paid because it exceeds a maximum allowable amount set by the
Director may, within 30 days, request reconsideration of the fee
determination.
(1) The provider should make such a request to the OWCP district
office with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
incorrectly identified by the original code, that the presence of a
severe or concomitant medical condition made treatment especially
difficult, or that the provider possessed unusual qualifications. In
itself, board-certification in a specialty is not sufficient evidence of
unusual qualifications to justify an exception. These are the only three
circumstances which will justify reevaluation of the paid amount.
(2) A list of OWCP district offices and their respective areas of
jurisdiction is available upon request from the U.S. Department of
Labor, Office of Workers' Compensation Programs, Washington, DC 20210,
or from the Internet at www.dol.gov./dol/esa/owcp.htm. Within 30 days of
receiving the request for reconsideration, the OWCP district office
shall respond in writing stating whether or not an additional amount
will be allowed as reasonable, considering the evidence submitted.
(b) If the OWCP district office issues a decision which continues to
disallow a contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the OWCP district office.
The application must be filed within 30 days of the date of such
decision, and it may be accompanied by additional evidence. Within 60
days of receipt of such application, the Regional Director shall issue a
decision in writing stating whether or not an additional amount will be
allowed as reasonable, considering the evidence submitted. This decision
shall be final, and shall not be subject to further review.
Sec. 10.813 If OWCP reduces a fee, may a provider bill the claimant for the balance?
A provider whose fee for service is partially paid by OWCP as a
result of the application of its fee schedule or other tests for
reasonableness in accordance with this part shall not request
reimbursement from the employee for additional amounts.
(a) Where a provider's fee for a particular service or procedure is
lower to the general public than as provided by the schedule of maximum
allowable charges, the provider shall bill at the lower rate. A fee for
a particular service or procedure which is higher than the provider's
fee to the general public for that same service or procedure will be
considered a charge ``substantially in excess of such provider's
customary charges'' for the purposes of Sec. 10.815(d).
(b) A provider whose fee for service is partially paid by OWCP as
the result of the application of the schedule of maximum allowable
charges and who collects or attempts to collect from the employee,
either directly or through a collection agent, any amount in excess of
the charge allowed by OWCP, and who does not cease such action or make
appropriate refund to the employee within 60 days of the date of the
decision of OWCP, shall be subject to the exclusion procedures provided
by Sec. 10.815(h).
Exclusion of Providers
Sec. 10.815 What are the grounds for excluding a provider from payment under the FECA?
A physician, hospital, or provider of medical services or supplies
shall be excluded from payment under the FECA if such physician,
hospital or provider has:
(a) Been convicted under any criminal statute of fraudulent
activities in
[[Page 65]]
connection with any Federal or State program for which payments are made
to providers for similar medical, surgical or hospital services,
appliances or supplies;
(b) Been excluded or suspended, or has resigned in lieu of exclusion
or suspension, from participation in any Federal or State program
referred to in paragraph (a) of this section;
(c) Knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact in connection with a determination
of the right to reimbursement under the FECA, or in connection with a
request for payment;
(d) Submitted, or caused to be submitted, three or more bills or
requests for payment within a twelve-month period under this subpart
containing charges which the Director finds to be substantially in
excess of such provider's customary charges, unless the Director finds
there is good cause for the bills or requests containing such charges;
(e) Knowingly failed to timely reimburse employees for treatment,
services or supplies furnished under this subpart and paid for by OWCP;
(f) Failed, neglected or refused on three or more occasions during a
12-month period to submit full and accurate medical reports, or to
respond to requests by OWCP for additional reports or information, as
required by the FECA and Sec. 10.800;
(g) Knowingly furnished treatment, services or supplies which are
substantially in excess of the employee's needs, or of a quality which
fails to meet professionally recognized standards; or
(h) Collected or attempted to collect from the employee, either
directly or through a collection agent, an amount in excess of the
charge allowed by OWCP for the procedure performed, and has failed or
refused to make appropriate refund to the employee, or to cease such
collection attempts, within 60 days of the date of the decision of OWCP.
Sec. 10.816 What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?
(a) OWCP shall automatically exclude a physician, hospital, or
provider of medical services or supplies who has been convicted of a
crime described in Sec. 10.815(a), or has been excluded or suspended,
or has resigned in lieu of exclusion or suspension, from participation
in any program as described in Sec. 10.815(b).
(b) The exclusion applies to participating in the program and to
seeking payment under the FECA for services performed after the date of
the entry of the judgment of conviction or order of exclusion,
suspension or resignation, as the case may be, by the court or agency
concerned. Proof of the conviction, exclusion, suspension or resignation
may consist of a copy thereof authenticated by the seal of the court or
agency concerned.
Sec. 10.817 When are OWCP's exclusion procedures initiated?
Upon receipt of information indicating that a physician, hospital or
provider of medical services or supplies (hereinafter the provider) has
engaged in activities enumerated in paragraphs (c) through (h) of Sec.
10.815, the Regional Director, after completion of inquiries he or she
deems appropriate, may initiate procedures to exclude the provider from
participation in the FECA program. For the purposes of this section,
``Regional Director'' may include any officer designated to act on his
or her behalf.
Sec. 10.818 How is a provider notified of OWCP's intent to exclude him or her?
The Regional Director shall initiate the exclusion process by
sending the provider a letter, by certified mail and with return receipt
requested, which shall contain the following:
(a) A concise statement of the grounds upon which exclusion shall be
based;
(b) A summary of the information, with supporting documentation,
upon which the Regional Director has relied in reaching an initial
decision that exclusion proceedings should begin;
[[Page 66]]
(c) An invitation to the provider to:
(1) Resign voluntarily from participation in the FECA program
without admitting or denying the allegations presented in the letter; or
(2) Request that the decision on exclusion be based upon the
existing record and any additional documentary information the provider
may wish to furnish;
(d) A notice of the provider's right, in the event of an adverse
ruling by the Regional Director, to request a formal hearing before an
administrative law judge;
(e) A notice that should the provider fail to answer (as described
in Sec. 10.819) the letter of intent within 30 calendar days of
receipt, the Regional Director may deem the allegations made therein to
be true and may order exclusion of the provider without conducting any
further proceedings; and
(f) The name and address of the OWCP representative who shall be
responsible for receiving the answer from the provider.
Sec. 10.819 What requirements must the provider's reply and OWCP's decision meet?
(a) The provider's answer shall be in writing and shall include an
answer to OWCP's invitation to resign voluntarily. If the provider does
not offer to resign, he or she shall request that a determination be
made upon the existing record and any additional information provided.
(b) Should the provider fail to answer the letter of intent within
30 calendar days of receipt, the Regional Director may deem the
allegations made therein to be true and may order exclusion of the
provider.
(c) By arrangement with the official representative, the provider
may inspect or request copies of information in the record at any time
prior to the Regional Director's decision.
(d) The Regional Director shall issue his or her decision in
writing, and shall send a copy of the decision to the provider by
certified mail, return receipt requested. The decision shall advise the
provider of his or her right to request, within 30 days of the date of
the adverse decision, a formal hearing before an administrative law
judge under the procedures set forth in Sec. 10.820. The filing of a
request for a hearing within the time specified shall stay the
effectiveness of the decision to exclude.
Sec. 10.820 How can an excluded provider request a hearing?
A request for a hearing shall be sent to the official representative
named under Sec. 10.818(f) and shall contain:
(a) A concise notice of the issues on which the provider desires to
give evidence at the hearing;
(b) Any request for a more definite statement by OWCP;
(c) Any request for the presentation of oral argument or evidence;
and
(d) Any request for a certification of questions concerning
professional medical standards, medical ethics or medical regulation for
an advisory opinion from a competent recognized professional
organization or Federal, State or local regulatory body.
Sec. 10.821 How are hearings assigned and scheduled?
(a) If the designated OWCP representative receives a timely request
for hearing, the OWCP representative shall refer the matter to the Chief
Administrative Law Judge of the Department of Labor, who shall assign it
for an expedited hearing. The administrative law judge assigned to the
matter shall consider the request for hearing, act on all requests
therein, and issue a Notice of Hearing and Hearing Schedule for the
conduct of the hearing. A copy of the hearing notice shall be served on
the provider by certified mail, return receipt requested. The Notice of
Hearing and Hearing Schedule shall include:
(1) A ruling on each item raised in the request for hearing;
(2) A schedule for the prompt disposition of all preliminary
matters, including requests for more definite statements and for the
certification of questions to advisory bodies; and
(3) A scheduled hearing date not less than 30 days after the date
the schedule is issued, and not less than 15 days after the scheduled
conclusion of preliminary matters, provided that the specific time and
place of the hearing may be set on 10 days' notice.
(b) The purpose of the designation of issues is to provide for an
effective
[[Page 67]]
hearing process. The provider is entitled to be heard on any matter
placed in issue by his or her response to the Notice of Intent to
Exclude, and may designate ``all issues'' for purposes of hearing.
However, a specific designation of issues is required if the provider
wishes to interpose affirmative defenses, or request the issuance of
subpoenas or the certification of questions for an advisory opinion.
Sec. 10.822 How are subpoenas or advisory opinions obtained?
(a) The provider may apply to the administrative law judge for the
issuance of subpoenas upon a showing of good cause therefor.
(b) A certification of a request for an advisory opinion concerning
professional medical standards, medical ethics or medical regulation to
a competent recognized or professional organization or Federal, State or
local regulatory agency may be made:
(1) As to an issue properly designated by the provider, in the sound
discretion of the administrative law judge, provided that the request
will not unduly delay the proceedings;
(2) By OWCP on its own motion either before or after the institution
of proceedings, and the results thereof shall be made available to the
provider at the time that proceedings are instituted or, if after the
proceedings are instituted, within a reasonable time after receipt. The
opinion, if rendered by the organization or agency, is advisory only and
not binding on the administrative law judge.
Sec. 10.823 How will the administrative law judge conduct the hearing and issue the recommended decision?
(a) To the extent appropriate, proceedings before the administrative
law judge shall be governed by 29 CFR part 18.
(b) The administrative law judge shall receive such relevant
evidence as may be adduced at the hearing. Evidence shall be presented
under oath, orally or in the form of written statements. The
administrative law judge shall consider the Notice and Response,
including all pertinent documents accompanying them, and may also
consider any evidence which refers to the provider or to any claim with
respect to which the provider has provided medical services, hospital
services, or medical services and supplies, and such other evidence as
the administrative law judge may determine to be necessary or useful in
evaluating the matter.
(c) All hearings shall be recorded and the original of the complete
transcript shall become a permanent part of the official record of the
proceedings.
(d) Pursuant to 5 U.S.C. 8126, the administrative law judge may:
(1) Issue subpoenas for and compel the attendance of witnesses
within a radius of 100 miles;
(2) Administer oaths;
(3) Examine witnesses; and
(4) Require the production of books, papers, documents, and other
evidence with respect to the proceedings.
(e) At the conclusion of the hearing, the administrative law judge
shall issue a written decision and cause it to be served on all parties
to the proceeding, their representatives and the Director.
Sec. 10.824 How can a party request review by the Director of the administrative law judge's recommended decision?
(a) Any party adversely affected or aggrieved by the decision of the
administrative law judge may file a petition for discretionary review
with the Director within 30 days after issuance of such decision. The
administrative law judge's decision, however, shall be effective on the
date issued and shall not be stayed except upon order of the Director.
(b) Review by the Director shall not be a matter of right but of the
sound discretion of the Director.
(c) Petitions for discretionary review shall be filed only upon one
or more of the following grounds:
(1) A finding or conclusion of material fact is not supported by
substantial evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law or to the duly promulgated rules
or decisions of the Director;
(4) A substantial question of law, policy, or discretion is
involved; or
[[Page 68]]
(5) A prejudicial error of procedure was committed.
(d) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
record when assignments of error are based on the record, and by
statutes, regulations or principal authorities relied upon. Except for
good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass.
(e) A statement in opposition to the petition for discretionary
review may be filed, but such filing shall in no way delay action on the
petition.
(f) If a petition is granted, review shall be limited to the
questions raised by the petition.
(g) A petition not granted within 20 days after receipt of the
petition is deemed denied.
(h) The decision of the Director shall be final with respect to the
provider's participation in the program, and shall not be subject to
further review by any court or agency.
Sec. 10.825 What are the effects of exclusion?
(a) OWCP shall give notice of the exclusion of a physician, hospital
or provider of medical services or supplies to:
(1) All OWCP district offices;
(2) All Federal employers;
(3) The HCFA;
(4) The State or local authority responsible for licensing or
certifying the excluded party; and
(5) All employees who are known to have had treatment, services or
supplies from the excluded provider within the six-month period
immediately preceding the order of exclusion.
(b) Notwithstanding any exclusion of a physician, hospital, or
provider of medical services or supplies under this subpart, OWCP shall
not refuse an employee reimbursement for any otherwise reimbursable
medical treatment, service or supply if:
(1) Such treatment, service or supply was rendered in an emergency
by an excluded physician; or
(2) The employee could not reasonably have been expected to have
known of such exclusion.
(c) An employee who is notified that his or her attending physician
has been excluded shall have a new right to select a qualified
physician.
Sec. 10.826 How can an excluded provider be reinstated?
(a) If a physician, hospital, or provider of medical services or
supplies has been automatically excluded pursuant to Sec. 10.816, the
provider excluded will automatically be reinstated upon notice to OWCP
that the conviction or exclusion which formed the basis of the automatic
exclusion has been reversed or withdrawn. However, an automatic
reinstatement shall not preclude OWCP from instituting exclusion
proceedings based upon the underlying facts of the matter.
(b) A physician, hospital, or provider of medical services or
supplies excluded from participation as a result of an order issued
pursuant to this subpart may apply for reinstatement one year after the
entry of the order of exclusion, unless the order expressly provides for
a shorter period. An application for reinstatement shall be addressed to
the Director for Federal Employees' Compensation, and shall contain a
concise statement of the basis for the application. The application
should be accompanied by supporting documents and affidavits.
(c) A request for reinstatement may be accompanied by a request for
oral argument. Oral argument will be allowed only in unusual
circumstances where it will materially aid the decision process.
(d) The Director for Federal Employees' Compensation shall order
reinstatement only in instances where such reinstatement is clearly
consistent with the goal of this subpart to protect the FECA program
against fraud and abuse. To satisfy this requirement the provider must
provide reasonable assurances that the basis for the exclusion will not
be repeated.
Subpart J_Death Gratuity
Authority: 5 U.S.C. 8102a.
[[Page 69]]
Source: 74 FR 41627, Aug. 18, 2009, unless otherwise noted.
Sec. 10.900 What is the death gratuity under this subpart?
(a) The death gratuity authorized by 5 U.S.C. 8102a and payable
pursuant to the provisions of this subpart is a payment to a claimant
who is an eligible survivor (as defined in Sec. Sec. 10.906 and 10.907)
or a designated alternate beneficiary (as defined in Sec. Sec. 10.908
and 10.909) of an employee who dies of injuries incurred in connection
with the employee's service with an Armed Force in a contingency
operation. This payment was authorized by section 1105 of Public Law
110-181 (2008). For the purposes of this subchapter, the term ``Armed
Force'' means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(b) This death gratuity payment is a FECA benefit, as defined by
Sec. 10.5(a) of this part. All the provisions and definitions in this
part apply to claims for payment under this subpart unless otherwise
specified.
Sec. 10.901 Which employees are covered under this subpart?
For purposes of this subpart, the term ``employee'' means all
employees defined in 5 U.S.C. 8101 and Sec. 10.5(h) of this part and
all non-appropriated fund instrumentality employees as defined in
section 1587(a)(1) of title 10 of the United States Code.
Sec. 10.902 Does every employee's death due to injuries incurred in
connection with his or her service with an Armed Force in a contingency operation qualify
for the death gratuity?
Yes. All such deaths that occur on or after January 28, 2008 (the
date of enactment of Public Law 110-181 (2008)) qualify for the death
gratuity administered by this subpart.
Sec. 10.903 Is the death gratuity payment applicable retroactively?
An employee's death qualifies for the death gratuity if the employee
died on or after October 7, 2001, and before January 28, 2008, if the
death was a result of injuries incurred in connection with the
employee's service with an Armed Force in the theater of operations of
Operation Enduring Freedom or Operation Iraqi Freedom.
Sec. 10.904 Does a death as a result of occupational disease qualify for payment of the death gratuity?
Yes--throughout this subpart, the word ``injury'' is defined as it
is in 5 U.S.C. 8101(5), which includes a disease proximately caused by
employment. If an employee's death results from an occupational disease
incurred in connection with the employee's service in a contingency
operation, the death qualifies for payment of the death gratuity under
this subpart.
Sec. 10.905 If an employee incurs a covered injury in connection with
his or her service with an Armed Force in a contingency operation but does not die of
the injury until years later, does the death qualify for
payment of the death gratuity?
Yes--as long as the employee's death is a result of injuries
incurred in connection with the employee's service with an Armed Force
in a contingency operation, the death qualifies for the death gratuity
of this subpart regardless of how long after the injury the employee's
death occurs.
Sec. 10.906 What special statutory definitions apply to survivors under this subpart?
For the purposes of paying the death gratuity to eligible survivors
under this subpart, OWCP will use the following definitions:
(a) ``Surviving spouse'' means the person who was legally married to
the deceased employee at the time of his or her death.
(b) ``Children'' means, without regard to age or marital status, the
deceased employee's natural children and adopted children. It also
includes any stepchildren who were a part of the decedent's household at
the time of death.
(1) A stepchild will be considered part of the decedent's household
if the decedent and the stepchild share the same principal place of
abode in the year prior to the decedent's death. The decedent and
stepchild will be considered as part of the same household
notwithstanding temporary absences due to special circumstances such as
illness, education, business travel, vacation travel, military service,
or a written custody agreement under which the stepchild is absent from
the employee's
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household for less than 180 days of the year.
(2) A natural child who is an illegitimate child of a male decedent
is included in the definition of ``children'' under this subpart if:
(i) The child has been acknowledged in writing signed by the
decedent;
(ii) The child has been judicially determined, before the decedent's
death, to be his child;
(iii) The child has been otherwise proved, by evidence satisfactory
to the employing agency, to be the decedent's child; or
(iv) The decedent had been judicially ordered to contribute to the
child's support.
(c) ``Parent'' or ``parents'' mean the deceased employee's natural
father and mother or father and mother through adoption. It also
includes persons who stood in loco parentis to the decedent for a period
of not less than one year at any time before the decedent became an
employee.
(1) A person stood in loco parentis when the person assumed the
status of parent toward the deceased employee. (Any person who takes a
child of another into his or her home and treats the child as a member
of his her family, providing parental supervision, support, and
education as if the child were his or her own child, will be considered
to stand in loco parentis.)
(2) Only one father and one mother, or their counterparts in loco
parentis, may be recognized in any case.
(3) Preference will be given to those who exercised a parental
relationship on the date, or most nearly before the date, on which the
decedent became an employee.
(d) ``Brother'' and ``sister'' mean any person, without regard to
age or marital status, who is a natural brother or sister of the
decedent, a half-brother or half-sister, or a brother or sister through
adoption. Step-brothers or step-sisters of the decedent are not
considered a ``brother'' or a ``sister.''
Sec. 10.907 What order of precedence will OWCP use to determine which
survivors are entitled to receive the death gratuity payment under this subpart?
If OWCP determines that an employee's death qualifies for the death
gratuity, the FECA provides that the death gratuity payment will be
disbursed to the living survivor(s) highest on the following list:
(a) The employee's surviving spouse.
(b) The employee's children, in equal shares.
(c) The employee's parents, brothers, and sisters, or any
combination of them, if designated by the employee pursuant to the
designation procedures in Sec. 10.909.
(d) The employee's parents, in equal shares.
(e) The employee's brothers and sisters, in equal shares.
Sec. 10.908 Can an employee designate alternate beneficiaries to receive a portion of the death gratuity payment?
An employee may designate another person or persons to receive not
more than 50 percent of the death gratuity payment pursuant to the
designation procedures in Sec. 10.909. Only living persons, rather than
trusts, corporations or other legal entities, may be designated under
this subsection. The balance of the death gratuity will be paid
according to the order of precedence described in Sec. 10.907.
Sec. 10.909 How does an employee designate a variation in the order or
percentage of gratuity payable to survivors and how does the employee designate
alternate beneficiaries?
(a) Form CA-40 must be used to make a variation in the order or
percentages of survivors under Sec. 10.907 and/or to make an alternate
beneficiary designation under Sec. 10.908. A designation may be made at
any time before the employee's death, regardless of the time of injury.
The form will not be valid unless it is signed by the employee and
received and signed prior to the death of the employee by the supervisor
of the employee or by another official of the employing agency
authorized to do so.
(b) Alternatively, any paper executed prior to the effective date of
this regulation that specifies an alternate beneficiary of the death
gratuity payment will serve as a valid designation if it is in writing,
completed before the employee's death, signed by the employee,
[[Page 71]]
and signed prior to the death of the employee by the supervisor of the
employee or by another official of the employing agency authorized to do
so.
(c) If an employee makes a survivor designation under Sec.
10.907(c), but does not designate the portions to be received by each
designated survivor, the death gratuity will be disbursed to the
survivors in equal shares.
(d) An alternate beneficiary designation made under Sec. 10.908
must indicate the percentage of the death gratuity, in 10 percent
increments up to the maximum of 50 percent, that the designated
person(s) will receive. No more than five alternate beneficiaries may be
designated. If the designation fails to indicate the percentage to be
paid to an alternate beneficiary, the designation to that person will be
invalid.
Sec. 10.910 What if a person entitled to a portion of the death gratuity
payment dies after the death of the covered employee but before receiving his or her
portion of the death gratuity?
(a) If a person entitled to all or a portion of the death gratuity
due to the order of precedence for survivors in Sec. 10.907 dies after
the death of the covered employee but before the person receives the
death gratuity, the portion will be paid to the living survivors
otherwise eligible according to the order of precedence prescribed in
that subsection.
(b) If a survivor designated under the survivor designation
provision in Sec. 10.907(c) dies after the death of the covered
employee but before receiving his or her portion of the death gratuity,
the survivor's designated portion will be paid to the next living
survivors according to the order of precedence.
(c) If a person designated as an alternate beneficiary under Sec.
10.908 dies after the death of the covered employee but before the
person receives his or her designated portion of the death gratuity, the
designation to that person will have no effect. The portion designated
to that person will be paid according to the order of precedence
prescribed in Sec. 10.907.
(d) If there are no living survivors or alternate beneficiaries, the
death gratuity will not be paid.
Sec. 10.911 How is the death gratuity payment process initiated?
(a) Either the employing agency or a living claimant (survivor or
alternate beneficiary) may initiate the death gratuity payment process.
If the death gratuity payment process is initiated by the employing
agency notifying OWCP of the employee's death, each claimant must file a
claim with OWCP in order to receive payment of the death gratuity. The
legal representative or guardian of any minor child may file on the
child's behalf. Alternatively, if a claimant initiates the death
gratuity payment process by filing a claim, the employing agency must
complete a death notification form and submit it to OWCP. Other
claimants must also file a claim for their portion of the death
gratuity.
(b) The employing agency must notify OWCP immediately upon learning
of an employee's death that may be eligible for benefits under this
subpart, by submitting form CA-42 to OWCP. The agency must also submit
to OWCP any designation forms completed by the employee, and the agency
must provide as much information as possible about any living survivors
or alternate beneficiaries of which the agency is aware.
(1) OWCP will then contact any living survivor(s) or alternate
beneficiary(ies) it is able to identify.
(2) OWCP will furnish claim form CA-41 to any identified survivor(s)
or alternate beneficiary(ies) and OWCP will provide information to them
explaining how to file a claim for the death gratuity.
(c) Alternatively, any claimant may file a claim for death gratuity
benefits with OWCP. Form CA-41 may be used for this purpose. The
claimant will be required to provide any information that he or she has
regarding any other beneficiaries who may be entitled to the death
gratuity payment. The claimant must disclose, in addition to the Social
Security number (SSN) of the deceased employee, the SSNs (if known) and
all known contact information of all other possible claimants who may be
eligible to receive the death gratuity payment. The claimant must also
identify, if known, the agency that employed the deceased employee when
he or she incurred the injury that
[[Page 72]]
caused his or her death. OWCP will then contact the employing agency and
notify the agency that it must complete and submit form CA-42 for the
employee. OWCP will also contact any other living survivor(s) or
alternate beneficiary(ies) it is able to identify, furnish to them claim
form CA-41, and provide information explaining how to file a claim for
the death gratuity.
(d) If a claimant submits a claim for the death gratuity to an
employing agency, the agency must promptly transmit the claim to OWCP.
This includes both claim forms CA-41 and any other claim or paper
submitted which appears to claim compensation on account of the
employee's death.
Sec. 10.912 What is required to establish a claim for the death gratuity payment?
Claim form CA-41 describes the basic requirements. Much of the
required information will be provided by the employing agency when it
completes notification form CA-42. However, the claimant bears the
burden of proof to ensure that OWCP has the evidence needed to establish
the claim. 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 the death gratuity must
establish the following before OWCP can pay the gratuity:
(a) That the claim was filed within the time limits specified by the
FECA, as prescribed in 5 U.S.C. 8122 and this part. Timeliness is based
on the date that the claimant filed the claim for the death gratuity
under Sec. 10.911, not the date the employing agency submitted form CA-
42.
(b) That the injured person, at the time he or she incurred the
injury or disease, was an employee of the United States as defined in 5
U.S.C. 8101(1) and Sec. 10.5(h) of this part, or a non-appropriated
fund instrumentality employee, as defined in 10 U.S.C. 1587(a)(1).
(c) That the injury or disease occurred and that the employee's
death was causally related to that injury or disease. The death
certificate of the employee must be provided. Often, the employing
agency will provide the death certificate and any needed medical
documentation. OWCP may request from the claimant any additional
documentation that may be needed to establish the claim.
(d) That the employee incurred the injury or disease in connection
with the employee's service with an Armed Force in a contingency
operation. This will be determined from evidence provided by the
employing agency or otherwise obtained by OWCP and from any evidence
provided by the claimant.
(1) Section 8102a defines ``contingency operation'' to include
humanitarian operations, peacekeeping operations, and similar
operations. (``Similar operations'' will be determined by OWCP.)
(i) A ``contingency operation'' is defined by 10 U.S.C. 101(a)(13)
as a military operation that--
(A) Is designated by the Secretary of Defense as an operation in
which members of the Armed Forces are or may become involved in military
actions, operations, or hostilities against an enemy of the United
States or against an opposing military force; or
(B) Results in the call or order to, or retention on, active duty of
members of the uniformed services under section 688, 12301(a), 12302,
12304, 12305, or 12406 of [Title 10], chapter 15 of [Title 10], or any
other provision of law during a war or during a national emergency
declared by the President or Congress.
(ii) A ``humanitarian or peacekeeping operation'' is defined by 10
U.S.C. 2302(8) as a military operation in support of the provision of
humanitarian or foreign disaster assistance or in support of a
peacekeeping operation under chapter VI or VII of the Charter of the
United Nations. The term does not include routine training, force
rotation, or stationing.
(iii) ``Humanitarian assistance'' is defined by 10 U.S.C. 401(e) to
mean medical, surgical, dental, and veterinary care provided in areas of
a country that are rural or are underserved by
[[Page 73]]
medical, surgical, dental, and veterinary professionals, respectively,
including education, training, and technical assistance related to the
care provided; construction of rudimentary surface transportation
systems; well drilling and construction of basic sanitation facilities;
rudimentary construction and repair of public facilities.
(2) A contingency operation may take place within the United States
or abroad. However, operations of the National Guard are only considered
``contingency operations'' for purposes of this subpart when the
President, Secretary of the Army, or Secretary of the Air Force calls
the members of the National Guard into service. A ``contingency
operation'' does not include operations of the National Guard when
called into service by a Governor of a State.
(3) To show that the injury or disease was incurred ``in connection
with'' the employee's service with an Armed Force in a contingency
operation, the claim must show that the employee incurred the injury or
disease while in the performance of duty as that phrase is defined for
the purposes of otherwise awarding benefits under FECA.
(4) (i) When the contingency operation occurs outside of the United
States, OWCP will find that an employee's injury or disease was incurred
``in connection with'' the employee's service with an Armed Force in a
contingency operation if the employee incurred the injury or disease
while performing assignments in the same region as the operation, unless
there is conclusive evidence that the employee's service was not
supporting the Armed Force's operation.
(ii) Economic or social development projects, including service on
Provincial Reconstruction Teams, undertaken by covered employees in
regions where an Armed Force is engaged in a contingency operation will
be considered to be supporting the Armed Force's operation.
(5) To show that an employee's injury or disease was incurred ``in
connection with'' the employee's service with an Armed Force in a
contingency operation, the claimant will be required to establish that
the employee's service was supporting the Armed Force's operation. The
death gratuity does not cover federal employees who are performing
service within the United States that is not supporting activity being
performed by an Armed Force.
(e) The claimant must establish his or her relationship to the
deceased employee so that OWCP can determine whether the claimant is the
survivor entitled to receive the death gratuity payment according to the
order of precedence prescribed in Sec. 10.907.
Effective Date Note: At 75 FR 5501, Feb. 3, 2010, Sec. 10.912 was
revised, effective April 5, 2010. For the convenience of the user, the
revised text is set forth as follows:
Sec. 10.912 What is required to establish a claim for the death
gratuity payment?
Claim form CA-41 describes the basic requirements. Much of the
required information will be provided by the employing agency when it
completes notification form CA-42. However, the claimant bears the
burden of proof to ensure that OWCP has the evidence needed to establish
the claim. 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 the death gratuity must
establish the following before OWCP can pay the gratuity:
(a) That the claim was filed within the time limits specified by the
FECA, as prescribed in 5 U.S.C. 8122 and this part. Timeliness is based
on the date that the claimant filed the claim for the death gratuity
under Sec. 10.911, not the date the employing agency submitted form CA-
42. As procedures for accepting and paying retroactive claims were not
available prior to the publication of the interim final rule, the
applicable statute of limitations began to run for a retroactive payment
under this subpart on August 18, 2009.
(b) That the injured person, at the time he or she incurred the
injury or disease, was an employee of the United States as defined in 5
U.S.C. 8101(1) and Sec. 10.5(h) of this part, or a non-appropriated
fund instrumentality employee, as defined in 10 U.S.C. 1587(a)(1).
(c) That the injury or disease occurred and that the employee's
death was causally related to that injury or disease. The death
certificate of the employee must be provided. Often, the employing
agency will provide the death certificate and any needed medical
documentation. OWCP may request from the claimant any additional
documentation that may be needed to establish the claim.
(d) That the employee incurred the injury or disease in connection
with the employee's
[[Page 74]]
service with an Armed Force in a contingency operation. This will be
determined from evidence provided by the employing agency or otherwise
obtained by OWCP and from any evidence provided by the claimant.
(1) Section 8102a defines ``contingency operation'' to include
humanitarian operations, peacekeeping operations, and similar
operations. (``Similar operations'' will be determined by OWCP.)
(i) A ``contingency operation'' is defined by 10 U.S.C. 101(a)(13)
as a military operation that--
(A) Is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in military
actions, operations, or hostilities against an enemy of the United
States or against an opposing military force; or
(B) Results in the call or order to, or retention on, active duty of
members of the uniformed services under section 688, 12301(a), 12302,
12304, 12305, or 12406 of [Title 10], chapter 15 of [Title 10], or any
other provision of law during a war or during a national emergency
declared by the President or Congress.
(ii) A ``humanitarian or peacekeeping operation'' is defined by 10
U.S.C. 2302(8) as a military operation in support of the provision of
humanitarian or foreign disaster assistance or in support of a
peacekeeping operation under chapter VI or VII of the Charter of the
United Nations. The term does not include routine training, force
rotation, or stationing.
(iii) ``Humanitarian assistance'' is defined by 10 U.S.C. 401(e) to
mean medical, surgical, dental, and veterinary care provided in areas of
a country that are rural or are underserved by medical, surgical,
dental, and veterinary professionals, respectively, including education,
training, and technical assistance related to the care provided;
construction of rudimentary surface transportation systems; well
drilling and construction of basic sanitation facilities; rudimentary
construction and repair of public facilities.
(2) A contingency operation may take place within the United States
or abroad. However, operations of the National Guard are only considered
``contingency operations'' for purposes of this subpart when the
President, Secretary of the Army, or Secretary of the Air Force calls
the members of the National Guard into service. A ``contingency
operation'' does not include operations of the National Guard when
called into service by a Governor of a State.
(3) To show that the injury or disease was incurred ``in connection
with'' the employee's service with an Armed Force in a contingency
operation, the claim must show that the employee incurred the injury or
disease while in the performance of duty as that phrase is defined for
the purposes of otherwise awarding benefits under FECA.
(4)(i) When the contingency operation occurs outside of the United
States, OWCP will find that an employee's injury or disease was incurred
``in connection with'' the employee's service with an Armed Force in a
contingency operation if the employee incurred the injury or disease
while performing assignments in the same region as the operation, unless
there is conclusive evidence that the employee's service was not
supporting the Armed Force's operation.
(ii) Economic or social development projects, including service on
Provincial Reconstruction Teams, undertaken by covered employees in
regions where an Armed Force is engaged in a contingency operation will
be considered to be supporting the Armed Force's operation.
(5) To show that an employee's injury or disease was incurred ``in
connection with'' the employee's service with an Armed Force in a
contingency operation, the claimant will be required to establish that
the employee's service was supporting the Armed Force's operation. The
death gratuity does not cover federal employees who are performing
service within the United States that is not supporting activity being
performed by an Armed Force.
(e) The claimant must establish his or her relationship to the
deceased employee so that OWCP can determine whether the claimant is the
survivor entitled to receive the death gratuity payment according to the
order of precedence prescribed in Sec. 10.907.
Sec. 10.913 In what situations will OWCP consider that an employee incurred
injury in connection with his or her service with an Armed Force in a contingency
operation?
(a) OWCP will consider that an employee incurred injury in
connection with service with an Armed Force in a contingency operation
if:
(1) The employee incurred injury while serving under the direction
or supervision of an official of an Armed Force conducting a contingency
operation; or
(2) The employee incurred injury while riding with members of an
Armed Force in a vehicle or other conveyance deployed to further an
Armed Force's objectives in a contingency operation.
(b) An employee may incur injury in connection with service with an
Armed Force in a contingency operation in situations other than those
listed above. Additional situations will be determined by OWCP on a
case-by-case basis.
[[Page 75]]
Sec. 10.914 What are the responsibilities of the employing agency in the death gratuity payment process?
Because some of the information needed to establish a claim under
this subpart will not be readily available to the claimants, the
employing agency of the deceased employee has significant
responsibilities in the death gratuity claim process. These
responsibilities are as follows:
(a) The agency must completely fill out form CA-42 immediately upon
learning of an employee's death that may be eligible for benefits under
this subpart. The agency must complete form CA-42 as promptly as
possible if notified by OWCP that a survivor filed a claim based on the
employee's death. The agency should provide as much information as
possible regarding the circumstances of the employee's injury and his or
her assigned duties at the time of the injury, so that OWCP can
determine whether the injury was incurred in the performance of duty and
whether the employee was performing service in connection with an Armed
Force in a contingency operation at the time.
(b) The employing agency must promptly transmit any form CA-41's
received from claimants to OWCP. The employer must also promptly
transmit to OWCP any other claim or paper submitted that appears to
claim compensation on account of the employee's death.
(c) The employing agency must maintain any designations completed by
the employee and signed by a representative of the agency in the
employee's official personnel file or a related system of records. The
agency must forward any such forms to OWCP if the agency submits form
CA-42 notifying OWCP of the employee's death. The agency must also
forward any other paper signed by the employee and employing agency that
appears to make designations of the death gratuity.
(d) If requested by OWCP, the employing agency must determine
whether a survivor, who is claiming the death gratuity based on his or
her status as an illegitimate child of a deceased male employee, has
offered satisfactory evidence to show that he or she is in fact the
employee's child.
(e) The employing agency must notify OWCP of any other death
gratuity payments under any other law of the United States for which the
employee's death qualifies. The employing agency also must notify OWCP
of any other death gratuity payments that have been paid based on the
employee's death.
(f) Non-appropriated fund instrumentalities must fulfill the same
requirements under this subpart as any other employing agency.
Sec. 10.915 What are the responsibilities of OWCP in the death gratuity payment process?
(a) If the death gratuity payment process is initiated by the
employing agency's submission of form CA-42, OWCP will identify living
potential claimants. OWCP will make a reasonable effort to provide claim
form CA-41's to any known potential claimants and provide instructions
on how to file a claim for the death gratuity payment.
(b) If the death gratuity payment process is initiated by a
claimant's submission of a claim, OWCP will contact the employing agency
and prompt it to submit form CA-42. OWCP will then review the
information provided by both the claim and form CA-42, and OWCP will
attempt to identify all living survivors or alternate beneficiaries who
may be eligible for payment of the gratuity.
(c) If OWCP determines that the evidence is not sufficient to meet
the claimant's burden of proof, OWCP will notify the claimant of the
additional evidence needed. The claimant will be allowed at least 30
days to submit the additional evidence required. OWCP may also request
additional information from the employing agency.
(d) OWCP will review the information provided by the claimant and
information provided by the employing agency to determine whether the
claim satisfies all the requirements listed in Sec. 10.912.
(e) OWCP will calculate the amount of the death gratuity payment and
pay the beneficiaries as soon as possible after accepting the claim.
[[Page 76]]
Sec. 10.916 How is the amount of the death gratuity calculated?
The death gratuity payment under this subpart equals $100,000 minus
the amount of any death gratuity payments that have been paid under any
other law of the United States based on the same death. A death gratuity
payment is a payment in the nature of a gift, beyond reimbursement for
death and funeral expenses, relocation costs, or other similar death
benefits. Only other death gratuity payments will reduce the amount of
the death gratuity provided in this subpart. For this reason, death
benefits provided to the same employee's survivors such as those under 5
U.S.C. 8133 as well as benefits paid under 5 U.S.C. 8134 are not death
gratuity payments, and therefore have no effect on the amount of the
death gratuity provided under this subpart.
(a) A payment provided under section 413 of the Foreign Service Act
of 1980 (22 U.S.C. 3973), is a death gratuity payment, and if a deceased
employee's survivors received that payment for the employee's death, the
amount of the death gratuity paid to the survivors under this subpart
would be reduced by the amount of the Foreign Service Act death
gratuity. Other death gratuities that would affect the calculation of
the amount payable include but are not limited to: the gratuity
provision in section 1603 of the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006
(Pub. L. 109-234, June 15, 2006); the $10,000 death gratuity to the
personal representative of civilian employees, at Title VI, Section 651
of the Omnibus Consolidated Appropriations Act of 1996 (Pub. L. 104-208,
September 30, 1996); the death gratuity for members of the Armed Forces
or any employee of the Department of Defense dying outside the United
States while assigned to intelligence duties, at 10 U.S.C. 1489; and the
death gratuity for employees of the Central Intelligence Agency, at 50
U.S.C. 403k.
(b) The amount of the death gratuity under this section will be
calculated before it is disbursed to the employee's survivors or
alternate beneficiaries, by taking into account any death gratuities
paid by the time of disbursement. Therefore, any designations made by
the employee under Sec. 10.909 are only applicable to the amount of the
death gratuity as described in paragraph (a) of this section. The
following examples are intended to provide guidance in this
administration of this subpart.
(1) Example One. An employee's survivors are entitled to the Foreign
Service Act death gratuity; the employee's spouse received payment in
the amount of $80,000 under that Act. A death gratuity is also payable
under FECA; the amount of the FECA death gratuity that is payable is a
total of $20,000. That employee, using Form CA-40 had designated 50% of
the death gratuity under this subpart to be paid to his neighbor John
Smith who is still living. So, 50% of the death gratuity will be paid to
his spouse and the remaining 50% of the death gratuity paid under this
subpart would be paid to John Smith. This means the surviving spouse
will receive $10,000 and John Smith will receive $10,000.
(2) Example Two. Employee dies in circumstances that would qualify
her for payment of the gratuity under this subpart; her agency has paid
the $10,000 death gratuity pursuant to Public Law 104-208. The employee
had not completed any designation form. The FECA death gratuity is
reduced by the $10,000 death gratuity and employee's spouse receives
$90,000.
(3) Example Three. An employee of the Foreign Service whose annual
salary is $75,000 dies in circumstances that would qualify for payment
of both the Foreign Service Act death gratuity and the death gratuity
under this subpart. Before his death, the employee designated that 40%
of the death gratuity under this subpart be paid to his cousin Jane
Smith, pursuant to the alternate beneficiary designation provision at
section 10.908 and that 10% be paid to his uncle John Doe who has since
died. At the time of his death, the employee had no surviving spouse,
children, parents, or siblings. Therefore, the Foreign Service Act death
gratuity will not be paid, because no eligible survivors according to
the Foreign Service Act provision exist. The death gratuity under this
subpart would equal $100,000, because no other death gratuity has been
paid, and Jane would receive
[[Page 77]]
$40,000 according to the employee's designation. As John Doe is
deceased, no death gratuity may be paid pursuant to the designation of a
share of the death gratuity to him.