[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 1998 Edition]
[From the U.S. Government Printing Office]


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          20



          Employees' Benefits



          PARTS 1 TO 399

                         Revised as of April 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT
          AS OF APRIL 1, 1998

          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration
          as a Special Edition of
          the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



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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.....................      89
  Finding Aids:
    Table of CFR Titles and Chapters..........................     589
    Alphabetical List of Agencies Appearing in the CFR........     605
    Redesignation Tables......................................     615
    List of CFR Sections Affected.............................     625



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   Cite this Code:  CFR

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

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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EFFECTIVE AND EXPIRATION DATES

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inserted following the text.

OMB CONTROL NUMBERS

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

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
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CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
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    An index to the text of ``Title 3--The President'' is carried within 
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the revision dates of the 50 CFR titles.

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in the Code of Federal Regulations.

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    The Office of the Federal Register also offers a free service on the 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 1998.



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                               THIS TITLE

    Title 20--Employees' Benefits is composed of three volumes. The 
first volume, containing parts 1-399, includes all current regulations 
issued by the Office of Workers' Compensation Programs, Department of 
Labor and the Railroad Retirement Board. The second volume, containing 
parts 400-499, includes all current regulations issued by the Social 
Security Administration. The third volume, containing part 500 to End, 
includes all current regulations issued by the Employees' Compensation 
Appeals Board, the Employment and Training Administration, the 
Employment Standards Administration, the Benefits Review Board, the 
Office of the Assistant Secretary for Veterans' Employment and Training 
(all of the Department of Labor) and the Joint Board for the Enrollment 
of Actuaries. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of April 1, 1998.

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

    For this volume, Melanie L. Marcec was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

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[[Page 1]]



                      TITLE 20--EMPLOYEES' BENEFITS




                   (This book contains parts 1 to 399)

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

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


Chapter ii--Railroad Retirement Board.......................         200


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

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




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


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

                SUBCHAPTER A--ORGANIZATION AND PROCEDURES

Part                                                                Page
1               Performance of functions under this chapter.           5
            SUBCHAPTER B--FEDERAL EMPLOYEES' COMPENSATION ACT

10              Claims for compensation under the Federal 
                    Employees' Compensation Act, as amended.           7
25              Compensation for disability and death of 
                    noncitizen Federal employees outside the 
                    United States...........................          67

                       SUBCHAPTERS C--E [RESERVED]

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

61              Claims for compensation under the War 
                    Hazards Compensation Act, as amended....          76

 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..........................          86

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                SUBCHAPTER A--ORGANIZATION AND PROCEDURES





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




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

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

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



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

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



Sec. 1.2  Assignment of functions.

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



Sec. 1.3  Rules in this chapter.

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



Sec. 1.4  Cross-references.

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



Sec. 1.5  Abolition of Bureau of Employees' Compensation.

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

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



Sec. 1.6  Historical background.

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

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            SUBCHAPTER B--FEDERAL EMPLOYEES' COMPENSATION ACT





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




                      Subpart A--General Provisions

                              Introduction

Sec.
10.1  Statutory provisions.
10.2  Administration of the Act and this chapter.
10.3  Purpose and scope of this part.
10.4  Applicability of other parts within this chapter.
10.5  Definitions and use of terms.

                     Information in Program Records

10.10  Custody of records relating to Federal Employees' Compensation 
          Act matters.
10.11  Confidentiality of records relating to Federal Employees' 
          Compensation Act matters.
10.12  Protection, release, inspection and copying of records.

                        Miscellaneous Provisions

10.20  Forms.
10.21  Waiver of compensation rights invalid.
10.22  Exclusiveness of remedy.
10.23  Penalties.

 Subpart B--Notice of Injury and Claim for Compensation, Administrative 
                               Procedures

                        Notice of Injury or Death

10.100  How to file a notice of injury or death.
10.101  When a notice of injury or death must be given.
10.102  Report of injury by the official superior.
10.103  Report of death by the official superior.
10.104  Report of the attending physician.

                         Claims for Compensation

10.105  Time for perfecting a claim for compensation.
10.106  How to file a claim for disability compensation.
10.107  Application for augmented compensation.
10.108  How to file an original claim for death benefits.
10.109  Claims for balance of schedule awards unpaid at death when death 
          is due to other causes.

                                Evidence

10.110  Burden of proof.
10.111  Submission of other evidence.

               Termination and Continuation of Eligibility

10.120  Report of termination of disability or return to work.
10.121  Recurrence of disability.
10.122  Claim for continuing compensation for disability.
10.123  Employing agency's responsibilities in returning the employee to 
          work.
10.124  Employee's obligation to return to work or to seek work when 
          able.
10.125  Affidavit or report by employee of employment and earnings.
10.126  Claims for continuing compensation for death.
10.127  Continuation of death compensation for a child, brother, sister 
          or grandchild who has reached the age of 18.
10.128  Termination of right to compensation for death; reapportionment 
          of compensation.

         Determinations of Claims, Hearing and Review Procedures

10.130  Processing of claims.
10.131  Request for a hearing.
10.132  Time and place of hearing; prehearing conference.
10.133  Conduct of hearing.
10.134  Subpoenas; witness fees.
10.135  Employing agency attendance at hearings and submission of 
          evidence.
10.136  Termination of hearing; release of decision.
10.137  Postponement; withdrawal or abandonment of request for hearing.
10.138  Review of decision.
10.139  Review by the Employee's Compensation Appeals Board.
10.140  Participation in claims process by employing agency.
10.141  Representation of the Director.
10.142  Representation of claimants.
10.143  Qualification of representative.
10.144  Authority of representative.
10.145  Fees for services.
10.146--10.149  [Reserved]
10.150  Statement relative to substantive rules.
10.151--10.159  [Reserved]

                         Representative Payment

10.160  Indications for designation of a representative payee.
10.161  Selection of a payee.
10.162  Responsibilities of a representative payee.
10.163  Use of benefit payments.

[[Page 8]]

10.164  Conservation and investment of benefit payments.
10.165  Termination of representation.
10.166  Accounting for benefit payments.

                     Subpart C--Continuation of Pay

                                 General

10.200  Statutory provisions.

                               Procedures

10.201  Right to continuation of pay.
10.202  Election of annual or sick leave.
10.203  Controversion by employing agency.
10.204  Termination and forfeiture of continuation of pay.
10.205  Pay defined for continuation of pay purposes.
10.206  Agency accounting and reporting of continuation of pay.

         Official Superior's and Beneficiaries' Responsibilities

10.207  Official superior's responsibility in continuation of pay cases.
10.208  Recurrence of disability.
10.209  Employee's responsibilities in continuation of pay cases.

                   Subpart D--Payment of Compensation

                           Compensation Rates

10.300  Maximum and minimum compensation.
10.301  Temporary total disability rate.
10.302  Permanent total disability rate.
10.303  Partial disability rate.
10.304  Schedule compensation rate.
10.305  Attendant allowance.
10.306  Eligibility for death benefits and death benefit rates.
10.307  Burial and transportation benefits.

                         Adjustments to Benefits

10.310  Buy back of annual or sick leave.
10.311  Lump-sum awards.
10.312  Assignment of claim, claims of creditors.
10.313  Dual benefits.
10.314  Cost-of-living adjustments.

                              Overpayments

10.320  Definitions.
10.321  Recovery of overpayments.
10.322  Waiver of recovery--defeat the purpose of the subchapter.
10.323  Waiver of recovery--against equity and good conscience.
10.324  Responsibility for providing financial information.

                 Subpart E--Furnishing Medical Treatment

10.400  Physician and medical services, etc. defined.
10.401  Medical treatment, hospital services, transportation, etc.
10.402  Official authorization for treatment.
10.403  Medical treatment in doubtful cases.
10.404  Emergency treatment.
10.405  Medical treatment if symptoms or disability recur.
10.406  Authority for dental treatment.
10.407  Medical examinations.
10.408  Medical referee examination.
10.409  Furnishing of orthopedic and prosthetic appliances, and dental 
          work.
10.410  Recording and submission of medical reports.
10.411  Submission of bills for medical services, appliances and 
          supplies; limitation on payment for services.
10.412  Reimbursement for medical expenses, transportation costs, loss 
          of wages and incidental expenses.
10.413  Time limitation on payment of bills.

   Subpart F--Exclusion of Physicians and Other Providers of Medical 
                          Services and Supplies

10.450  Exclusion for fraud and abuse: Grounds.
10.451  Automatic exclusion.
10.452  Initiation of exclusion procedures.
10.453  Requests for a hearing.
10.454  Hearings and recommended decision.
10.455  Review by Director.
10.456  Effects of exclusion.
10.457  Reinstatement.

        Subpart G--Cases Involving the Liability of a Third Party

10.500  Prosecution of third party action by a beneficiary.
10.501  Assignment of third party.
10.502  Refusal to assign or prosecute claim when required; effect.
10.503  Distribution of damages recovered by beneficiary.
10.504  Distribution of damages where cause of action is assigned.
10.505  Office may require beneficiary to settle or compromise third 
          party suit.
10.506  Official superior's responsibility in cases involving potential 
          third party liability.
10.507  Satisfaction of the interest of the United States.

                  Subpart H--Special Category Employees

                         Peace Corps Volunteers

10.600  Definition of volunteer.
10.601  Applicability of the Act.
10.602  When disability compensation commences.
10.603  Pay rate for compensation purposes.
10.604  Period of service as a volunteer.

[[Page 9]]

10.605  Conditions of coverage while serving outside the United States 
          and the District of Columbia.

                  Non-Federal Law Enforcement Officers

10.610  Definition of a law enforcement officer.
10.611  Applicability.
10.612  Conditions for eligibility.
10.613  Time for filing a claim.
10.614  How to file a notice of injury or death.
10.615  Benefits.
10.616  Computation of benefits.
10.617  Responsibilities of the claimant, the employing agency and the 
          Office.
10.618  Consultation with Attorney General and other agencies.
10.619  Cooperation with State and local agencies.

                     Federal Grand and Petit Jurors

10.620  Definition of juror.
10.621  Applicability.
10.622  Performance of duty.
10.623  When disability compensation commences.
10.624  Pay rate for compensation purposes.

    Authority:  5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 FR 
3174, 64 Stat. 1263; 5 U.S.C. 8149; Secretary's Order 1-93, 58 FR 21190.

    Source:  40 FR 6877, Feb. 14, 1975, unless otherwise noted.



                      Subpart A--General Provisions

                              Introduction



Sec. 10.1  Statutory provisions.

    (a) The Federal Employees' Compensation Act, 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 Act 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 Officer 
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 (see 5 U.S.C. 5351, 8144), employees of the Panama 
Canal Commission and certain employees of the Alaska Railroad (see 5 
U.S.C. 8146), certain law enforcement officers not employed by the 
United States (see 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 Act provides for the payment of compensation for wage loss 
and for permanent impairment of specified members and functions of the 
body incurred by employees as a result of an injury sustained while in 
the performance of their duties in service to the United States. In 
addition to monetary compensation, eligible employees are entitled to 
receive, at reasonable expense to the United States, medical and related 
services made necessary by the medical condition or conditions accepted 
as being employment related. In appropriate cases, vocational 
rehabilitation services shall be provided to eligible beneficiaries.
    (c) The Act also provides for the payment of monetary compensation 
to specified survivors of an employee whose death is the result of an 
employment-related injury and for payment of certain burial expenses 
subject to the provisions of 5 U.S.C. 8134.
    (d) Each of the types of benefits and conditions of eligibility 
enumerated in this section is subject to the applicable provisions of 
the Act and the provisions of this part. This section shall not be 
construed to modify or enlarge upon the provisions of the Act.
[52 FR 10503, Apr. 1, 1987]



Sec. 10.2  Administration of the Act and this chapter.

    (a) Pursuant to 5 U.S.C. 8145 and Secretary of Labor's Orders 13-71 
(36 FR 8755) and 16-73 (38 FR 19130) the responsibility for 
administering the provisions of the Act were delegated to the Assistant 
Secretary of Labor for Employment Standards. Pursuant to Employment 
Standards Order 2-74 effective September 27, 1974 (39 FR 34722-34723), 
the responsibility for the administration and implementation of the 
Federal Employees' Compensation Act, except for 5 U.S.C. 8149 thereof as 
it pertains to the Employees' Compensation Appeals Board, was delegated 
and assigned to the Director, Office of Workers' Compensation Programs. 
The Director, Office of Workers' Compensation Programs and his or her 
designees

[[Page 10]]

shall, therefore, except as is otherwise provided by law have the 
exclusive authority for the administration, implementation, and 
enforcement of the provisions of this chapter.
    (b) In the case of employees of the Panama Canal Commission, the 
Federal Employees' Compensation Act is administered by the Panama Canal 
Commission and inquiries pertaining to such coverage should be directed 
to that Commission.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10503, Apr. 1, 1987]



Sec. 10.3  Purpose and scope of this part.

    (a) This part 10 sets forth the rules applicable to the filing, 
processing, and payment of claims for workers' compensation benefits 
under the provisions of the Federal Employees' Compensation Act, as 
amended. This part is applicable to all claims filed on or after 
November 6, 1974. The provisions of this part are intended to afford 
guidance and assistance to any person seeking compensation benefits 
under the Act, as well as to personnel within the Department of Labor 
and other agencies of the United States who are required to perform some 
function with respect to the administration of any provision of the Act 
or the processing of any claim filed under the Act.
    (b) This subpart A describes generally the statutory and 
administrative framework governing the manner in which claims under the 
Act shall be processed, contains a statement of purpose and scope, 
together with provisions pertaining to definition and use of terms, the 
disclosure of program information, and other miscellaneous provisions 
relating to the administration of the Act.
    (c) Subpart B of this part describes the procedure by which an 
individual claimant shall file a notice of injury and claim for benefits 
under the Act and further describes the administrative procedures 
applicable to the processing of each individual claim and the rules 
governing the termination and continuation of eligibility for benefits 
with respect to certain previously approved claims.
    (d) Subpart C of this part describes special procedures applicable 
to the continuation of pay provisions contained in 5 U.S.C. 8118 as 
amended by Pub. L. 93-416, 88 Stat. 1146.
    (e) Subpart D of this part contains provisions relating to the 
procedures governing the payment of dollar benefits for disability or 
death and further contains additions to the compensation schedule 
mandated by the new paragraph 22 of 5 U.S.C. 8107(c), Pub. L. 93-416, 88 
Stat. 1145.
    (f) Subpart E of this part contains the rules governing an 
employee's rights to obtain medical evidence in support of such 
employee's claim and further contains information describing the rights 
of a beneficiary to medical benefits under the Act.
    (g) Subpart F of this part is reserved.
    (h) Subpart G of this part contains the rules governing the 
adjustment and recovery from a third person under 5 U.S.C. 8132.
    (i) Subpart H of this part contains rules for particular groups of 
employees whose status requires special application of the provisions of 
the Act.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10503, Apr. 1, 1987]



Sec. 10.4  Applicability of other parts within this chapter.

    This revised part 10 is applicable to part 25 of this chapter except 
as modified by part 25.
[52 FR 10503, Apr. 1, 1987]



Sec. 10.5  Definitions and use of terms.

    (a) Definitions. For purposes of this subchapter except where the 
content clearly indicates otherwise, the following definitions apply:
    (1) The Act means the Federal Employees' Compensation Act, 5 U.S.C. 
8101 et seq., as amended by Pub. L. 93-416 and as it may be hereafter 
amended.
    (2) Secretary means the Secretary of the U.S. Department of Labor or 
a person authorized to perform his functions under the Act.
    (3) Department means the U.S. Department of Labor.
    (4) Office or OWCP means the Office of Workers Compensation 
Programs, Employment Standards Administration, of the Department.
    (5) Director means the Director of OWCP or a person designated by 
him or

[[Page 11]]

her to carry out his or her functions under the Act.
    (6) Benefits or Compensation means the money paid or payable under 
the Act to the employee on account of loss of wages or loss of wage-
earning capacity and to enumerated survivors on account of the 
employee's death, and includes any other benefits paid for from the 
Employee's Compensation Fund such as scheduled compensation under 5 
U.S.C. 8107, medical diagnostic and treatment services supplied pursuant 
to the Act and this part, vocational rehabilitation services, additional 
money for services of an attendant or for vocational rehabilitation 
under 5 U.S.C. 8111, and funeral expenses under 5 U.S.C. 8134, but does 
not include continuation of pay as provided by 5 U.S.C. 8118.
    (7) Claim means an assertion in writing of an individual's 
entitlement to benefits under or pursuant to the Act, submitted in a 
form and manner authorized by the provisions of this part.
    (8) Claimant means an individual whose claim for entitlement to 
benefits under the Act has been filed in accordance with the Act and the 
provisions of this part.
    (9) Beneficiary means an individual who is entitled to a benefit 
under the Act and this part.
    (10) Entitlement means entitlement to benefits as determined 
pursuant to the provisions of the Act and the procedures set forth in 
this part. A beneficiary is entitled to benefits as so determined when 
the determination is final.
    (11) Employee means:
    (i) 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;
    (ii) 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;
    (iii) 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;
    (iv) An individual appointed to a position on the office staff of a 
former President under section 1(b) of the Act of August 25, 1958 (72 
Stat. 838);
    (v) An individual selected pursuant to chapter 121 of title 28 U.S. 
Code, and serving as a petit or grand juror;
    (vi) Members of the Reserve Officers Training Corps;
    (vii) Civil Air Patrol Volunteers;
    (viii) Peace Corps Volunteers and volunteer leaders;
    (ix) Job Corps enrollees;
    (x) Youth Conservation Corps enrollees;
    (xi) Volunteers in Service to America;
    (xii) Members of the National Teachers Corps;
    (xiii) Members of the Neighborhood Youth Corps;
    (xiv) Student employees as defined in 5 U.S.C. 5351;
    (xv) Employees of the Panama Canal Commission;
    (xvi) Certain employees of the Alaska Railroad;
    (xvii) Law enforcement officers not employees of the United States 
and Federal law enforcement officers who are pensioned or pensionable 
under sections 521-535 of title 4, District of Columbia Code;
    (xviii) An individual covered under the provisions of section 
105(e)(1) of Pub. L. 93-638 (Indian Self-Determination and Education 
Assistance Act of 1975); and,
    (xix) Other persons performing service for the United States within 
the purview of the Act and all acts in amendment, substitution or 
extension thereof;
    (xx) But does not include:
    (A) A commissioned officer of the Regular Corps of the Public Health 
Service;
    (B) A commissioned officer of the Reserve Corps of the Public Health 
Service on active duty;
    (C) A commissioned officer of the National Oceanic and Atmospheric 
Administration.
    (12) Official superior means officers and employees having 
responsibility

[[Page 12]]

for the supervision, direction or control of employees, or other 
employees of the agency designated by the employing agency to carry out 
the responsibilities vested in the agency under the Act and this 
subpart.
    (13) Employing agency or agency means any civil agency or 
instrumentality of the U.S. Government or any other organization, group 
or institution employing any individual defined as an ``employee'' by 
this section.
    (14) Injury means a wound or condition of the body induced by 
accident or trauma, and includes a disease or illness proximately caused 
by the employment for which benefits are provided under the Act. The 
term ``injury'' includes damage to or destruction of medical braces, 
artificial limbs, and other prosthetic devices which shall be replaced 
or repaired; except that eyeglasses and hearing aids shall not be 
replaced, repaired, or otherwise compensated for, unless the damage or 
destruction is incident to a personal injury requiring medical services.
    (15) Traumatic injury means a wound or other condition of the body 
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. The injury must be caused by a specific event or 
incident or series of events or incidents within a single work day or 
work shift.
    (16) Occupational disease or illness means a condition produced in 
the work environment over a period longer than a single workday or shift 
by such factors as systemic infection; continued or repeated stress or 
strain; or exposure to hazardous elements such as, but not limited to, 
toxins, poisons, fumes, noise, particulates, or radiation, or other 
continued or repeated conditions or factors of the work environment.
    (17) Disability means the incapacity, because of employment injury, 
to earn the wages the employee was receiving at the time of injury.
    (18) Temporary aggravation means that factors of employment have 
directly caused an underlying or pre-existing condition, disease or 
illness to be more severe for a definite limited period of time and 
thereafter leaves no greater impairment than existed prior to the 
employment injury.
    (19) 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.
    (20) Pay rate for compensation purposes means the employee's pay, as 
determined under section 8114 of the Act, at the time of injury, or at 
the time disability begins, or at the time compensable disability recurs 
if the recurrence begins more than 6 months after the injured employee 
resumes regular full-time employment with the United States, whichever 
is greater, except as otherwise determined under section 8113 of the Act 
with respect to any period.
    (21) Organ means a part of the body that performs a special 
function, and for purposes of this part excludes the brain, heart and 
back.
    (22) United States Medical Officers and Hospitals includes medical 
officers and hospitals of the Army, Navy, Air Force, Veterans 
Administration, and U.S. Public Health Service, and any other medical 
officers or hospitals designated as a U.S. medical officer or hospital 
by the Secretary.
    (23) Representative means a person authorized by a claimant in 
writing to act for the claimant in connection with a claim or proceeding 
under the Act or this part. Where a claimant is physically or mentally 
incapable of making such a designation, it may be made by the claimant's 
legal guardian.
    (24) Surviving spouse means the husband or wife living with or 
dependent for support on a deceased employee at the time of his or her 
death, or living apart for reasonable cause or because of his or her 
desertion.
    (25) Student means an individual under 23 years of age who has not 
completed 4 years of education beyond the high school level and who is 
regularly pursuing a full-time course of study or training at an 
institution which is--
    (i) A school or college or university operated or directly supported 
by the United States, or by any State or local government or political 
subdivision thereof; or
    (ii) A school or college or university which has been accredited by 
a State

[[Page 13]]

or by a State-recognized or nationally recognized accrediting agency or 
body; or
    (iii) A school or college or university not so accredited but whose 
credits are accepted on transfer by not less than three institutions 
which are so accredited, for credit on the same basis as if transferred 
from an accredited institution; or
    (iv) A technical, trade, vocational, business, or professional 
school accredited or licensed by the Federal or a State government or 
any political subdivision thereof providing courses of not less than 3 
months duration, that prepares the individual for a livelihood in a 
trade, industry, vocation, or profession.

An individual continues to be a student during any interim between 
school years if the interim does not exceed 4 months and the individual 
shows to the satisfaction of the Office that he or she has a bona fide 
intention of continuing to pursue a full-time course of education or 
training during the semester or other enrollment period immediately 
after the interim, or during periods of reasonable duration during 
which, in the judgment of the Office, the individual is prevented by 
factors beyond his or her control from pursuing his or her education. A 
student whose 23rd birthday occurs during a semester or other enrollment 
period is deemed a student until the end of the semester or other 
enrollment period.
    (26) A 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 has indicated an 
intention to continue schooling within 4 months of high school 
graduation, and each successive 12-month period in which there is school 
attendance or the payment of compensation based on student attendance, 
or
    (ii) If the individual has indicated that he or she will not 
continue schooling within 4 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 
student status.
    (b) Dependents and survivors. In addition to basic disability 
benefits for employees the Act provides in section 8133 that certain 
monthly benefits shall be payable to certain enumerated survivors of 
employees who have died from an injury sustained in the performance of 
duty. Section 8110 of the Act provides that any employee who is found 
eligible for a basic benefit shall be entitled to have such a basic 
benefit augmented at a specified rate for certain persons living in the 
beneficiary's household or who are dependent upon the beneficiary for 
support. The provisions of 5 U.S.C. 8101, 8110, and 8133 defining the 
nature of such survivorship or dependency necessary to qualify a 
beneficiary for a survivor's benefit or augmented benefit shall be 
applicable as appropriate to the provisions of this part.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10503, Apr. 1, 1987]

                     Information In Program Records



Sec. 10.10  Custody of records relating to Federal Employees' Compensation Act matters.

    All records, medical and other reports, statements of witnesses and 
other papers relating to the injury or death of a civil employee of the 
United States or other persons entitled to compensation or benefits from 
the United States under the Act and all amendments and extensions 
thereof, are the official records of the Office and are not records of 
the agency, establishment or department making or having the care or use 
of such records.
[52 FR 10504, Apr. 1, 1987]



Sec. 10.11  Confidentiality of records relating to Federal Employees' Compensation Act matters.

    Records of the Office pertaining to an injury or death are 
confidential, and are exempt from disclosure to the public under section 
552(b)(6) of title 5, United States Code. No official or employee of an 
agency, establishment or department who has investigated or secured 
statements from witnesses and others pertaining to a claim for benefits, 
or any person having the care or

[[Page 14]]

use of such reports, shall disclose information from or pertaining to 
such records to any person, except in accordance with applicable 
regulations (see 29 CFR parts 70 and 70a).
[52 FR 10505, Apr. 1, 1987]



Sec. 10.12  Protection, release, inspection and copying of records.

    (a) The protection, release, inspection and copying of records of 
the Office pertaining to an injury or death shall be accomplished in 
accordance with the rules, guidelines and provisions contained in 29 CFR 
parts 70 and 70a and the annual notice of systems of records and routine 
uses as published in the Federal Register. However, since the records of 
the Office are contained within a government-wide system of records 
under the control of the Department of Labor, 29 CFR 70a.1(b)(3) 
provides that the regulations of the agency in possession of such 
records shall govern the procedure for requesting access to, or 
amendment of the records, including initial determinations on such 
requests, while the Department of Labor regulations shall govern all 
other aspects of safeguarding these records established by the Privacy 
Act. Where requested to amend such records in possession of the agency 
is received, the agency shall so advise the Office and shall provide the 
Office with a copy of any amended record.
    (b) Records of the Office pertaining to an employee or beneficiary 
which are in the possession of the employing agency may be released by 
the employing agency to that employee or beneficiary, or their 
representative, in accordance with the provisions contained in 29 CFR 
part 70a. This includes copies retained by the employing agency of 
records previously submitted to and in the possession of the Office.
    (c) When an employee or beneficiary is prosecuting an action for 
damages under 5 U.S.C. 8131, records may be released as provided for in 
29 CFR part 70a.
[52 FR 10505, Apr. 1, 1987]

                        Miscellaneous Provisions



Sec. 10.20  Forms.

    (a) Notice of injury, claims and certain specified reports required 
to be made with respect to any claim shall be made on approved forms as 
are prescribed by the Office. Supervisors are expected to maintain an 
adequate supply of the basic forms needed for the proper recording and 
reporting of injuries. Pamphlet CA-136, obtainable from OWCP, lists the 
forms to be stocked by the agencies; and also tells where the forms may 
be obtained.
    (b) The basic forms cited in this chapter are:

                                                                        
------------------------------------------------------------------------
                 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-3.................................  Report of Termination of     
                                            Disability and/or Payment.  
(5) CA-5.................................  Claim for Compensation by    
                                            Widow, Widower and/or       
                                            Children.                   
(6) CA-5b................................  Claim for Compensation by    
                                            Parents, Brothers, Sisters, 
                                            Grandparents, or            
                                            Grandchildren.              
(7) CA-6.................................  Official Superior's Report of
                                            Employee's Death.           
(8) CA-7.................................  Claim for Compensation Due to
                                            Traumatic Injury of         
                                            Occupational Disease.       
(9) CA-8.................................  Claim for Continuing         
                                            Compensation on Account of  
                                            Disability.                 
(10) CA-12...............................  Claim for Continuance of     
                                            Compensation.               
(11) CA-16...............................  Authorization of Examination 
                                            and/or Treatment.           
(12) CA-17...............................  Duty Status Report.          
(13) CA-20...............................  Attending Physician's Report.
(14) CA-20a..............................  Attending Physician's        
                                            Supplemental Report.        
------------------------------------------------------------------------

    (c) Copies of the forms enumerated in this paragraph are available 
for public inspection at the Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, 
Washington, D.C. 20211.
[40 FR 6877, Feb. 14, 1975, as amended at 41 FR 2, Jan. 2, 1976; 52 FR 
10505, Apr. 1, 1987]

[[Page 15]]



Sec. 10.21  Waiver of compensation rights invalid.

    No official superior or other person is authorized to 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 Act. No waiver of compensation rights shall be 
valid.



Sec. 10.22  Exclusiveness of remedy.

    The benefits provided to employees and to survivors of employees by 
the Act constitute the exclusive remedy against the United States for 
employment related injuries or deaths. The injury or death of an 
employee gives rise to no right to recover damages from the United 
States exclusive of the Act.



Sec. 10.23  Penalties.

    (a) Any employee, beneficiary, official superior, representative, or 
other person who knowingly makes, or knowingly certifies to, any false 
statement, misrepresentation, concealment of fact, or any other act of 
fraud with respect to a claim under the Act, or who knowingly accepts 
compensation to which that person is not entitled, is subject to 
criminal prosecution and may, under appropriate U.S. Criminal Code 
provisions (e.g., 18 U.S.C. 287 and 1001), be punished by a fine of not 
more than $10,000 or imprisonment for not more than five years, or both.
    (b) Any employee, beneficiary, official superior, representative, or 
other person who, with respect to a claim under the Act, enters into any 
agreement, combination, or conspiracy to defraud the United States by 
obtaining or aiding to obtain the payment or allowance of any false, 
fictitious or fraudulent claim is subject to criminal prosecution and 
may, under appropriate U.S. Criminal Code provisions (e.g., 18 U.S.C. 
286), be punished by a fine of not more than $10,000 or imprisonment for 
not more than ten years, or both.
    (c) Any person charged with the responsibility of making reports in 
connection with an injury who willfully fails, neglects, or refuses to 
do so; induces, compels, or directs an injured employee to forego filing 
a claim; or willfully retains any notice, report, or paper required in 
connection with an injury, is subject to a fine of not more than $500 or 
imprisonment for not more than one year, or both.
[52 FR 10505, Apr. 1, 1987]



 Subpart B--Notice of Injury and Claim for Compensation, Administrative 
                               Procedures

                        Notice of Injury or Death



Sec. 10.100  How to file a notice of injury or death.

    (a) Traumatic injury. An employee who sustains a traumatic injury 
which the employee believes occurred while in the performance of duty 
shall give written notice of the injury on Form CA-1 to the official 
superior. If the employee is unable to give written notice, it may be 
given by any person acting on the employee's behalf.
    (b) Occupational disease or illness. An employee who has a disease 
or illness which the employee believes to be employment-related shall 
give written notice of the condition on Form CA-2 to the official 
superior. If the employee is unable to give written notice, it may be 
given by any person acting on the employee's behalf. If it is 
impractical to give written notice to the employee's official superior, 
it may be given to any official of the employing agency, or directly to 
the Office. Form CA-2 must be accompanied by a statement from the 
employee to include:
    (1) A detailed history of the disease or illness with identification 
of part(s) of the body affected;
    (2) Complete details of types of substances or conditions of 
employment believed responsible for the disease or illness;
    (3) A description of specific exposures to substances or stressful 
conditions including locations, frequency and duration, and
    (4) Whether the employee ever suffered a similar condition and, if 
so, full details of onset, history and medical care received with names 
and addresses of physicians rendering treatment.
    (c) Death. If an employee dies because of a traumatic injury 
believed to have been sustained in the performance of duty or because of 
a disease or illness

[[Page 16]]

believed to have been employment-related, the employee's survivor(s), or 
any person acting on behalf of the survivor(s), shall notify the 
official superior of the death. If it is impractical to give notice to 
the employee's official superior, it may be given to any official of the 
employing agency, or directly to the Office.
    (d) The person submitting a notice under paragraph (a) or (b) of 
this section shall include the Social Security Number (SSN) of the 
injured worker. In cases where the worker dies as a result of an on-the-
job injury and the notice is submitted under paragraph (c) of this 
section, the SSN of the person seeking benefits shall be disclosed in 
addition to the SSN of the deceased worker.
[52 FR 10505, Apr. 1, 1987, as amended at 58 FR 68032, Dec. 23, 1993]



Sec. 10.101  When a notice of injury or death must be given.

    (a) Traumatic injury. Written notice of a traumatic injury or death 
due to a traumatic injury shall be given as soon as possible but, 
pursuant to 5 U.S.C. 8119, no later than 30 days from the date on which 
the injury or death occurred. Given the provisions of 5 U.S.C. 8122 and 
Sec. 10.105 of this part concerning the timely filing of a claim for 
compensation, the failure to give notice within 30 days may result in a 
loss of compensation rights.
    (b) Occupational disease or illness. Written notice of disease or 
illness believed to be employment related shall be given as soon as 
possible but no later than 30 days from the date on which the employee 
was first aware, or by the exercise of reasonable diligence should have 
been aware, of a possible relationship between the disease or illness 
and the conditions or factors of employment. Given the provisions of 5 
U.S.C. 8122 and Sec. 10.105 of this part concerning the timely filing of 
a claim for compensation, the failure to give notice within 30 days may 
result in a loss of compensation rights.
    (c) Death. In the case of death, notice shall be given as soon as 
possible but no later than 30 days from the date of death or the date 
the employee's survivor first became aware, or by the exercise of 
reasonable diligence should have been aware, of a possible relationship 
between the death and the conditions or factors of employment. Given the 
provisions of 5 U.S.C. 8122 and Sec. 10.105 of this part concerning the 
timely filing of a claim for compensation, the failure to give notice 
within 30 days may result in a loss of compensation rights.
[52 FR 10506, Apr. 1, 1987]



Sec. 10.102  Report of injury by the official superior.

    (a) As soon as possible but no later than 10 working days after 
receipt of written notice of injury from the employee, the official 
superior shall submit to the Office a written report of every injury or 
occupational disease or illness which is likely to:
    (1) Result in a medical charge against the Office;
    (2) Result in disability for work beyond the day or shift of injury;
    (3) Require prolonged treatment (i.e., more than two instances of 
medical examination and/or treatment);
    (4) Result in future disability;
    (5) Result in permanent impairment or;
    (6) Result in a continuation of pay pursuant to 5 U.S.C 8118.

Portions of Forms CA-1 or CA-2 are provided for this purpose. If the 
injury does not come under any of the categories enumerated in this 
paragraph, the Form CA-1 or CA-2 need not be submitted to the Office but 
shall be retained as a permanent record in the Employee Medical Folder 
in accordance with the guidelines established by the Office of Personnel 
Management. Regardless of whether the Form CA-1 of CA-2 is forwarded to 
the Office or retained by the employing agency, immediately upon receipt 
of the written notice of injury the official superior shall complete the 
``Receipt of Notice of Injury'' and return it to the employee.
    (b) If the official superior has reason to disagree with any 
particular of the injury as reported by the employee, the official 
superior or other agency official shall explore the circumstances of the 
injury and submit to the Office a full written explanation specifying 
the areas of disagreement and the findings upon which the disagreement 
is based. The report may be accompanied by

[[Page 17]]

supporting documentation such as witness statements, medical reports or 
records, or any other relevant information. Any written explanation of 
disagreement shall be submitted to the Office at the same time as Form 
CA-1 in cases of traumatic injury, and within 30 calendar days from the 
date Form CA-2 is received from the employee in occupational disease 
cases. If written explanation in support of the disagreement is not 
submitted, the Office may accept as factual the report of injury made by 
the employee. Disagreement with the particulars of the injury as 
reported by the employee may not be used by the employing agency to 
delay the forwarding of the claim to the Office or to compel or induce 
the employee to change the claim.
    (c) In cases of disease or illness, Form CA-2 must be accompanied by 
the following from the official superior:
    (1) A detailed description of the employee's duty assignments 
including the nature, extent and duration of exposure to fumes, 
chemicals, or other irritants or situations;
    (2) Copies of all physical examination reports, including x-ray 
reports and laboratory data, on file for the employee;
    (3) A record of the employee's absences from work showing the reason 
for the absence in each instance, if known;
    (4) Statements from each co-worker currently employed by the agency 
who has firsthand knowledge about the employee's condition and its 
cause, and;
    (5) The official superior's comments on the accuracy of the 
employee's statement required by Sec. 10,100(b) of this part.
    (d) Other reports shall be submitted by the official superior as 
described elsewhere in this part or as may be required by the Office.
    (e) The official superior is authorized to furnish an employee or 
beneficiary, or the representative, with a copy of any notice of injury, 
claim form, or other document pertaining to that employee or beneficiary 
which has been completed and submitted to the Office by the employing 
agency. This includes any notice of injury, claim form, or other 
document previously submitted to the Office, a copy of which was 
retained by the employing agency. While furnishing a copy of such forms 
and documents is not required on a routine basis in every case, the 
official superior shall furnish a copy of such forms and documents upon 
receipt of a written request from the employee or beneficiary, or the 
representative.
[52 FR 10506, Apr. 1, 1987]



Sec. 10.103  Report of death by the offical superior.

    If an employee dies because of a traumatic injury or a disease or 
illness sustained in the performance of duty, the official superior 
shall immediately report the death to the Office by telephone or 
telegram. As soon as possible but no later than 10 working days after 
receipt of knowledge of death, the official superior shall complete and 
send Form CA-6 to the Office.
[52 FR 10506, Apr. 1, 1987]



Sec. 10.104  Report of the attending physician.

    (a) In all cases reported, the employee must submit, or arrange for 
the submission of, a medical report to the Office from the attending 
physician. This report should include: dates of examination and 
treatment; history given by the employee; findings; results of x-rays 
and laboratory tests; diagnosis; course of treatment; and the 
physician's opinion, with medical reasons, regarding causal relationship 
between the diagnosed condition(s) and the factors or conditions of the 
employment. This report may be made:
    (1) On Part B of Form CA-16;
    (2) On Form CA-20 or CA-20a; or
    (3) By narrative report on the physician's letterhead stationery. 
The report shall be submitted to the Office as soon as possible after 
medical examination or treatment is received. (See also 
Sec. 10.204(a)(1).)
    (b) Additional reports shall be submitted by the attending physician 
as described elsewhere in this part or as may be required by the Office.

[[Page 18]]

    (c) Medical reports from the attending physician are to be submitted 
directly to the Office. However, the employing agency may request copies 
of these reports from the Office.
[52 FR 10506, Apr. 1, 1987]

                         Claims for Compensation



Sec. 10.105  Time for perfecting a claim for compensation.

    (a) Claim for disability compensation. An injured employee is 
required to file a written claim for compensation within 3 years after 
the injury before compensation may be paid. If, however, the official 
superior had actual knowledge of the injury within 30 days, or if 
written notice was given within 30 days, compensation may be allowed 
regardless of whether a written claim was made within 3 years after the 
injury. Actual knowledge must be such as to put the official superior 
reasonably on notice of an on-the-job injury.
    (b) Claim for death compensation. If the employee dies, a written 
claim for compensation by or on behalf of the survivors is required 
before compensation may be paid. This claim is to be filed within 3 
years after the death, unless within 30 days of such death, the official 
superior had actual knowledge of the death, due to an employment related 
injury or disease or written notice of such death was given to the 
official superior within 30 days of such death. The timely filing of a 
disability claim because of an on-the-job injury will satisfy the time 
requirements for a death claim based on the same injury.
    (c) Claim predicated upon a latent disability. In a case of latent 
disability, or death due to a latent disability, the time for filing a 
claim does not begin to run until the employee has a compensable 
disability or dies and is aware or his survivors are aware, or by the 
exercise of reasonable diligence should have been aware, of the casual 
relationship of the compensable disability or death to the employment. 
In such a case, the time for giving notice of injury or death begins to 
run when the employee is aware or the survivors are aware, or by the 
exercise of reasonable diligence should have been aware that the 
employee's condition or death is casually related to his or her 
employment, whether or not there is a compensable disability or death.
    (d) The time limitations described in this section do not begin to 
run against a minor until such minor reaches 21 years of age or has had 
a legal representative appointed; or run against an incompetent 
individual while such individual is incompetent and has no duly 
appointed legal representative; or run against any individual whose 
failure to comply is excused by the Secretary of Labor on the ground 
that notice could not be given because of exceptional circumstances.
    (e) If no claim is filed by an injured employee or by someone acting 
on the employee's behalf prior to his or her death, the right to claim 
compensation for disability other than medical expenses ceases and does 
not survive.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10507, Apr. 1, 1987]



Sec. 10.106  How to file a claim for disability compensation.

    (a) Whenever an employee, as a result of an injury in the 
performance of duty, is disabled with loss of pay for more than 3 
calendar days or has a permanent impairment or serious disfigurement as 
described in 5 U.S.C. 8107, the official superior shall furnish the 
employee with Form CA-7 for the purpose of claiming compensation and 
shall advise the employee of his or her rights under the Act.
    (b) The employee, upon termination of wage loss if the period of 
wage loss is less than 10 calendar days, or at the expiration of 10 
calendar days from the date pay stops if the period of wage loss will be 
10 calendar days or more, should file Form CA-7 with the Office or with 
any person designated by the Office to receive claims. The employee's 
official superior is so designated to receive claims on behalf of the 
Office. The employee, or someone acting on the employee's behalf, must 
complete the front of Form CA-7 and, unless special circumstances 
require otherwise, submit the form to the official superior for 
completion and transmission to the Office. The employee is responsible 
for submitting, or arranging for the submission of, medical evidence in 
support

[[Page 19]]

of the claim. Form CA-20 is attached to Form CA-7 for this purpose.
    (c) Upon receipt of Form CA-7 from the employee (or from someone 
acting on the employee's behalf), the official superior shall complete 
the appropriate portions of the claim form. As soon as possible, but not 
later than 5 working days after its receipt from the employee, the 
official superior shall forward the completed Form CA-7 and any 
accompanying medical report to the Office.

(Approved by the Office of Management and Budget under control number 
1215-0103)

[52 FR 10507, Apr. 1, 1987]



Sec. 10.107  Application for augmented compensation.

    (a) While the employee has one or more dependents as defined in 5 
U.S.C. 8110, the employee's basic compensation for wage loss as provided 
in section 8105 or 8106(a), or for permanent impairment as provided in 
section 8107(a), shall be augmented as provided in section 8110. Form 
CA-7 includes an application for such augmented compensation.
    (b) Augmented compensation payable while an employee has an 
unmarried child as defined by 5 U.S.C. 8110, which would otherwise 
terminate because the child reaches the age of 18, may be continued 
while the child is a student as defined by the Act and in 
Sec. 10.5(a)(25) of this part.
    (c) The Office may require an employee to submit an affidavit or 
statement as to any dependents, or to submit necessary supporting 
documentation such as birth or marriage certificates or court orders, in 
the manner and at the times the Office specifies, in order to determine 
the employee's entitlement to augmented compensation. If an employee 
when required, fails within 30 days of the date of the request to submit 
such affidavit, statement, or supporting documentation the employee's 
right to augmented compensation otherwise payable shall be suspended 
until such time as the requested affidavit, statement, or supporting 
documentation is received, at which time augmented compensation will be 
reinstated retroactive to the date of suspension provided the employee 
is entitled to such augmented compensation.
    (d) An employee entitled to or receiving augmented compensation 
shall promptly notify the Office of any event which would terminate the 
employee's continued entitlement to augmented compensation. Any checks 
or payments received after such event shall be returned to the Office as 
soon as possible. Where augmented compensation is paid by the Office 
beyond the date entitlement terminated, the Office shall make proper 
adjustment and any difference between actual entitlement and the amount 
already paid is an overpayment of compensation and may be recovered 
pursuant to 5 U.S.C. 8129 and other appropriate statutes.
[52 FR 10507, Apr. 1, 1987]



Sec. 10.108  How to file an original claim for death benefits.

    An original claim for death benefits may be filed by any survivor of 
a deceased employee (see section 8133 of the Act) or any other person 
acting on behalf of such survivor. Form CA-5 is provided by the Office 
for this purpose, and should be executed as provided therein. An 
original death claim may be filed by delivering a completed Form CA-5 to 
the Office, or to any person designated by the Office to receive such 
claim. The deceased employee's former official superior is so designated 
to receive such claims on behalf of the Office, and the person claiming 
benefits should submit the claim to such former official superior, 
unless special circumstances require a different procedure. The official 
superior shall, when it is practicable, furnish to all persons likely to 
be entitled to compensation for death of an employee, a Form CA-5 or CA-
5b with information as to the use of the form for making claim for 
compensation and procedure in respect of filing such form. The 
furnishing of assistance in preparing such form or in obtaining evidence 
relating to the claim shall be without charge by the official superior. 
Any claim or paper purporting to claim compensation on account of death, 
submitted to the deceased employee's former official superior, shall be 
transmitted promptly to the Office.

[[Page 20]]



Sec. 10.109  Claims for balance of schedule awards unpaid at death when death is due to other causes.

    (a) If an employee who has sustained compensable impairment within 
the meaning of 5 U.S.C. 8107, and has filed a valid claim during his or 
her lifetime, dies from causes other than the injury which resulted in 
the compensable impairment before the entire amount due for the schedule 
was paid, a claim for the unpaid balance may be made on a form approved 
by the Office by the surviving spouse or child in accordance with 5 
U.S.C. 8109(a)(3)(D). If there is no surviving spouse or child, then a 
claim for the unpaid balance may be made by any other survivors pursuant 
to 5 U.S.C. 8109(a)(3)(D) and benefits shall be paid in the proportions 
and under the conditions and in the order as follows:
    (1) To the parent or parents wholly dependent for support upon the 
decedent in equal shares with any wholly dependent brother, sister, 
grandparent or grandchild;
    (2) To the parent or parents partially dependent for support upon 
the decedent in equal shares when there are no wholly dependent 
brothers, sisters, grandparents or grandchildren (or other wholly 
dependent parent); and
    (3) 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), share and share alike.
    (b) Any survivor referred to in paragraph (a) of this section must 
be alive to receive any payment and any such survivor shall not have a 
vested right to any such payment. Claims for continuation of payments 
under 5 U.S.C. 8109 shall be made in the manner described by Sec. 10.126 
of this subpart.
    (c) The entitlement of any survivor to payment under 5 U.S.C. 8109 
shall cease upon the happening of any event which would terminate such 
right under 5 U.S.C. 8133. The termination of such right and any 
necessary reapportionment shall be governed by Sec. 10.128 of this 
subpart.
    (d) The disposition of any balance not paid under the foregoing 
paragraphs shall be made in accordance with 5 U.S.C. 8109(a)(D)(v).
[52 FR 10507, Apr. 1, 1987]

                                Evidence



Sec. 10.110  Burden of proof.

    (a) A claimant has the burden of establishing by the weight of 
reliable, probative and substantial evidence that the claimed condition 
and the disability, if any, was caused, aggravated, or adversely 
affected by the claimant's Federal employment. As a part of this burden, 
the claimant must specify the employment incident or the factors or 
conditions of employment to which the injury, disease or disability is 
attributed, and must submit rationalized medical opinion evidence, based 
upon a complete and accurate factual and medical background, showing 
causal relationship between the claimed condition and the Federal 
employment. The fact that a condition or disease manifests itself during 
a period of Federal employment by itself does not raise an inference 
that there is causal relationship between the two. Neither the fact that 
the condition or disease became manifest during a period of Federal 
employment, nor the belief of the claimant that the condition or disease 
was caused or aggravated by employment conditions or factors, is 
sufficient in itself to establish causal relationship.
    (b) If a claimant initially submits supportive factual and/or 
medical evidence which is not sufficient to carry the burden of proof, 
the Office will inform the claimant of the defects in proof and grant at 
least 30 calendar days for the claimant to submit the evidence required 
to meet the burden of proof. Subsequent submissions of evidence still 
not sufficient to carry the burden of proof will not require another 
notification of defects. The Office may, in its discretion, undertake to 
develop either factual or medical evidence for determination of the 
claim. For example, when the claim is based on exposure to hazardous 
material or noise at work, or when relevant evidence is in the 
possession of the Federal government and not accessible to the claimant 
(e.g., a deactivated employing agency facility), the Office will

[[Page 21]]

undertake to develop the necessary evidence.
    (c) Once the Office has accepted a claim and paid compensation, it 
has the burden, before terminating or reducing compensation, of 
establishing by the weight of the evidence that the disability for which 
compensation was paid has ceased, or that the disabling condition is no 
longer causally related to the employment, or that the claimant is only 
partially disabled, or that its initial decision was in error.
[52 FR 10508, Apr. 1, 1987]



Sec. 10.111  Submission of other evidence.

    The responsibilities of the official superior and the claimant to 
submit evidence are specified elsewhere in this part. A claimant, a 
person acting on the claimant's behalf, or the employing agency may 
submit to the Office any other evidence which is deemed relevant and 
pertinent to the initial and ongoing determination of the claim.
[52 FR 10508, Apr. 1, 1987]

               Termination and Continuation of Eligibility



Sec. 10.120  Report of termination of disability or return to work.

    In all cases reported to the Office the official superior shall 
notify the Office immediately upon the injured employee's return to work 
or termination of disability. Form CA-3 is provided for this purpose. It 
shall be used unless a report of termination of disability is made to 
the Office on Form CA-1 or CA-2, or CA-7 as appropriate, or in some 
other manner.
[52 FR 10508, Apr. 1, 1987]



Sec. 10.121  Recurrence of disability.

    (a) The official superior shall notify the Office if, after the 
employee returns to work, the original injury causes the employee to 
stop work again. Form CA-2a is provided for this purpose. If the 
original injury was not previously reported to the Office, notice of the 
original injury shall be made on Form CA-1 or CA-2, as appropriate, and 
attached when Form CA-2a is submitted. Medical reports concerning the 
original injury should also be attached if not previously submitted. 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.
    (b) When the employee has received medical care as a result of the 
recurrence, he or she should arrange for a detailed medical report to be 
submitted by the attending physician. The report should include: dates 
of examination and treatment; history given by the employee; findings; 
results of x-ray and laboratory tests; diagnosis; course of treatment; 
the physician's opinion, with medical reasons, regarding causal 
relationship between the employee's condition and the original injury; 
work limitations or restrictions, and prognosis. The employee should 
also submit, or arrange for the submission of, similar medical reports 
for any examination and/or treatment received subsequent to returning to 
work following the original injury.
    (c) The employee must also give the reasons for believing the 
recurrence of disability is related to the original injury. A statement 
from the employee must accompany Form CA-2a describing the employee's 
duties upon return to work after the original injury, stating whether 
there were any other injuries or illness, and giving a general 
description of the employee's physical condition during the intervening 
period. The official superior may submit comments concerning the 
employee's statement.
    (d) If the injured employee does not return to duty prior to the 
date Form CA-2a is submitted to the Office, the return to duty or 
termination of disability shall be reported to the Office on Form CA-3 
unless otherwise reported on Form CA-7 or Form CA-8.
    (e) Claim for compensation as a result of the recurrence of 
disability should be made using Form CA-7, unless such form was 
previously filed after the original injury. If Form CA-7 was previously 
filed, compensation must be claimed using Form CA-8. A completed claim 
form plus a medical report on Form CA-20 or CA-20a (or in narrative 
form) must be submitted before compensation may be paid.
[52 FR 10509, Apr. 1, 1987]

[[Page 22]]



Sec. 10.122  Claim for continuing compensation for disability.

    Form CA-8 is provided to claim compensation for additional periods 
of time after Form CA-7 is submitted to the Office. It is the 
responsibility of the employee to submit Form CA-8. Without receipt of 
such claim, the Office has no knowledge of continuing wage loss. 
Therefore, while disability continues, a claim on Form CA-8 should be 
submitted every 2 weeks until the employee is otherwise instructed by 
the Office. The employee shall complete and sign the face of the form, 
and the official superior shall complete the reverse side. The employee 
is responsible for submitting, or arranging for the submission of, 
medical evidence in support of the claim. Form CA-20a is attached to 
Form CA-8 for this purpose. The official superior shall forward the 
completed Form CA-8 and any accompanying medical report to the Office 
within 5 working days of receipt from the employee.

(Approved by the Office of Management and Budget under control number 
1215-0103)

[52 FR 10509, Apr. 1, 1987, as amended at 54 FR 18834, May 2, 1989]



Sec. 10.123  Employing agency's responsibilities in returning the employee to work.

    (a) Upon authorization of medical care, the official superior shall 
provide the employee with written notification of his or her obligation 
to return to work as soon as possible and, with respect to alternative 
work, shall
    (1) Advise the employee in the same manner as provided by 
Sec. 10.207(b); and
    (2) Advise the employee of his or her responsibilities under 
Sec. 10.124 of this subpart.

The term ``return to work'' as used in this section is not limited to 
return to work at the employee's normal worksite, but may include return 
to work at other alternate locations.
    (b) The employing agency shall monitor the employee's medical 
progress and duty status by obtaining periodic medical reports. Form CA-
17 is provided for this purpose. To facilitate an injured employee's 
return to suitable employment, the employing agency may correspond in 
writing with the employee's physician concerning the work limitations 
and restrictions imposed by the effects of the injury and possible job 
assignments. The employing agency shall concurrently send a copy of any 
such correspondence to the Office and the claimant, as well as a copy of 
the physician's response when received.
    (c) Where the employing agency is notified in writing that the 
attending physician has found the employee to be partially disabled, and 
the employee is able to:
    (1) Perform in a specific alternative position which is available 
within the agency and for which the agency has furnished the employee 
with a written description of the specific duties and physical 
requirements, the agency shall notify the employee immediately of the 
date of availability. To facilitate early return to work, the agency may 
inform the employee of the offer and its availability by telephone, but 
must provide written confirmation of the offer as soon as possible 
thereafter.
    (2) Perform restricted or limited duties, the agency shall determine 
whether necessary accommodation can be made, and if so, advise the 
employee in writing of the duties, their physical requirements and 
availability. To facilitate early return to work, the agency may inform 
the employee of the offer by telephone, but must provide written 
confirmation of the offer as soon as possible thereafter.
    (d) Where the nature and extent of injury prohibit the employee from 
returning to the duties of the position held at the time of injury, and 
the agency is unable to accommodate the restrictions and limitations 
imposed on the employee by the injury, and employment is consequently 
terminated, the agency may, in cooperation and coordination with the 
Office, subsequently determine the former employee's current physical 
condition and offer reemployment in a position suitable to the former 
employee's capabilities. Such reemployment offer must be in writing and 
include a description of the duties of the position being offered, the 
physical requirements of those duties, and the date the former employee 
is to return to work or, in the alternative, the date by which the 
former

[[Page 23]]

employee must notify the agency of his or her decision with respect to 
acceptance or refusal of the reemployment offer.
    (e) A complete copy of any agency offer of employment or 
reemployment should be sent to the Office at the same time as it is sent 
to the employee.
    (f) Where an injured employee relocates after having been terminated 
from the agency's employment rolls, the Office encourages employing 
agencies to offer suitable reemployment in the location where the former 
employee currently resides. If this is not practical, the agency may 
offer suitable employment at the employee's former duty station or other 
alternate location. Where acceptance of the offered reemployment would 
result in relocation expenses being incurred by the former employee, 
such expenses as are considered reasonable and necessary may be paid by 
the Office from the Employees' Compensation Fund. In determining whether 
a relocation expense is reasonable and necessary, the Office shall use 
as a guide the Federal travel regulations pertaining to permanent change 
of duty station.
[52 FR 10510, Apr. 1, 1987]



Sec. 10.124  Employee's obligation to return to work or to seek work when able.

    (a) An employee whose disability has ceased and who is able to 
resume regular Federal employment has the obligation to do so. No 
further compensation for wage loss is payable once the employee has 
recovered from the employment injury to the extent that he or she could 
perform the duties of the position held at the time of injury, or earn 
equivalent wages.
    (b) Where an employee has been advised by the employing agency in 
writing of the existence of specific alternative positions within the 
agency, the employee shall furnish the description and physical 
requirements of such alternative positions to the attending physician 
and inquire whether and when the employee will be able to perform such 
duties. Where an agency has advised the employee of its willingness to 
accommodate, where possible, the employee's work limitations and 
restrictions, the employee shall so advise the attending physician and 
request the physician to specify the limitations and restrictions 
imposed by the injury. The employee has the responsibility to advise the 
employing agency immediately of the limitations and restrictions 
imposed.
    (c) Where an employee has been offered suitable employment (or 
reemployment) by the employing agency (i.e., employment or reemployment 
which the Office has found to be within the employee's educational and 
vocational capabilities, within any limitations and restrictions which 
pre-existed the injury, and within the limitations and restrictions 
which resulted from the injury), or where an employee has been offered 
suitable employment as a result of job placement efforts made by or on 
behalf of the Office, the employee is obligated to return to such 
employment. An employee who refuses or neglects to work after suitable 
work has been offered or secured for the employee has the burden of 
showing that such refusal or failure to work was reasonable or 
justified, and shall be provided with the opportunity to make such 
showing before a determination is made with respect to termination of 
entitlement to compensation as provided by 5 U.S.C. 8106(c)(2) and 
paragraph (e) of this section.
    (d) When a permanently disabled employee who cannot return to the 
position held at the time of injury due to the residuals of the 
employment injury has recovered sufficiently to be able to perform some 
type of work, the employee must seek suitable work either in the 
Government or in private employment. Such an employee must report the 
efforts made to obtain suitable employment at such times and in such 
manner as the Office may require including the names and addresses of 
the persons or establishments to whom the employee has applied for work.
    (e) A partially disabled employee who, without showing sufficient 
reason or justification, refuses to seek suitable work or refuses or 
neglects to work after suitable work has been offered to, procured by, 
or secured for the employee, is not entitled to further compensation for 
total disability, partial disability, or permanent impairment as 
provided by sections 8105, 8106,

[[Page 24]]

and 8107 of the Act, but remains entitled to medical benefits as 
provided by section 8103 of the Act. An employee shall be provided with 
the opportunity to make such showing of sufficient reason or 
justification before a determination is made with respect to termination 
of entitlement to compensation as provided by 5 U.S.C. 8106(c).
    (f) Pursuant to 5 U.S.C. 8104(a), the Office may direct a 
permanently disabled employee to undergo vocational rehabilitation. If 
an employee without good cause fails or refuses to apply for, undergo, 
participate in, or continue participation in a vocational rehabilitation 
effort when so directed, the Office will, in accordance with 5 U.S.C. 
8113(b), reduce prospectively the employee's monetary compensation based 
on what would probably have been the employee's wage-earning capacity 
had there not been such failure or refusal. If an employee without good 
cause fails or refuses to apply for, undergo, participate in, or 
continue participation in the early but necessary stages of a vocational 
rehabilitation effort (i.e., interviews, testing, counseling, and work 
evaluations), the Office cannot determine what would have been the 
employee's wage-earning capacity had there not been such failure or 
refusal. It will be assumed, therefore, in the absence of evidence to 
the contrary, that the vocational rehabilitation effort would have 
resulted in a return to work with no loss of wage-earning capacity, and 
the Office will reduce the employee's monetary compensation accordingly. 
Any reduction in the employee's monetary compensation under the 
provisions of this paragraph shall continue until the employee in good 
faith complies with the direction of the Office.
[52 FR 10509, Apr. 1, 1987]



Sec. 10.125  Affidavit or report by employee of employment and earnings.

    (a) While in receipt of compensation for partial or total 
disability, and unless found by the Office to be unnecessary or 
inappropriate, an employee shall periodically be required to submit an 
affidavit or other report of earnings from employment or self-employment 
on either a part-time or full-time basis. If an employee when required, 
fails within 30 days of the date of the request to submit such an 
affidavit or report, the employee's right to compensation for wage loss 
under section 8105 or 8106 is suspended until such time as the requested 
affidavit or report is received by the Office, at which time 
compensation will be reinstated retroactive to the date of suspension. 
If, in making an affidavit or report, an employee knowingly omits or 
understates any earnings or remuneration, the employee shall forfeit the 
right to compensation with respect to any period for which the affidavit 
or report was required. A false or evasive statement, omission, 
concealment, or misrepresentation with respect to employment or earnings 
in a required affidavit or report may, in addition to forfeiture, 
subject the employee to criminal prosecution.
    (b) Where the right to compensation is forfeited, any compensation 
already paid for the period of forfeiture shall be recovered by 
deducting the amount from compensation payable in the future. If further 
compensation is not payable, the compensation already paid may be 
recovered pursuant to 5 U.S.C. 8129 and the Federal Claims Collection 
Act (31 U.S.C. 952).
    (c) Earnings from employment referred to in this section or 
elsewhere in this part means gross earnings or wages before any 
deductions and includes the value of subsistence, quarters, reimbursed 
expenses, or any other advantages received in kind as part of the wages 
or remuneration. In general, earnings from self-employment means a 
reasonable estimate of the rate of pay it would cost the employee to 
have someone else perform the work or duties the employee is performing. 
Where self-employment is in the form of a corporation, partnership, or 
sole-proprietorship, a lack of profits for such entity does not remove 
the employee's obligation to report the employment or the rate of pay.
    (d) For the purpose of administering the Act, including the making 
of proper determinations as to an employee's entitlement to benefits, 
the Office may, with the written consent of the employee, obtain from 
the Social Security Administration wage information concerning that 
employee to include

[[Page 25]]

the names and addresses of employers for whom the employee worked during 
a specified period of time, the periods employed, and the gross amount 
of wages earned.
[52 FR 10508, Apr. 1, 1987, as amended at 53 FR 11594, Apr. 7, 1988]



Sec. 10.126  Claims for continuing compensation for death.

    A beneficiary to whom an award of compensation has been made on 
account of an employee's death shall submit additional claims for 
continuing compensation to the Office once each year, or when required 
by the Office. Form CA-12 is provided by the Office for this purpose and 
will be sent to the beneficiary when an additional claim is required. If 
a beneficiary when required, fails within 30 days of the date of request 
to submit the form (or an equivalent written statement), the 
beneficiary's right to compensation, including compensation payable to 
that beneficiary for or on behalf of another (e.g., compensation payable 
to a widow on behalf of a child), shall be suspended until such time as 
the requested form or equivalent written statement is received, at which 
time compensation will be reinstated at the appropriate rate retroactive 
to the date of suspension.
[52 FR 10509, Apr. 1, 1987]



Sec. 10.127  Continuation of death compensation for a child, brother, sister or grandchild who has reached the age of 18.

    Compensation payable on behalf of a child, brother, sister, or 
grandchild under 5 U.S.C. 8133, which would otherwise be terminated 
because such individual has reached 18 years of age, shall be continued 
if and for so long as he or she is not married and is physically or 
mentally incapable of self-support, or if he or she is a student as 
defined in Sec. 10.5(a)(25) for so long as he or she is not married and 
continues as a student. An individual in receipt of compensation under 
the provisions of 5 U.S.C. 8133 shall furnish, when so required by the 
Office, proof of continuing entitlement to such compensation, including 
certification of school enrollment. If a beneficiary when required, 
fails within 30 days of the date of the request to submit such proof, 
the beneficiary's right to compensation shall be suspended until the 
requested information is received, at which time compensation will be 
reinstated retroactive to the date of suspension, provided the 
beneficiary is entitled to such compensation.
[52 FR 10510, Apr. 1, 1987]



Sec. 10.128  Termination of right to compensation for death; reapportionment of compensation.

    (a) When a beneficiary who is receiving compensation on account of 
death ceases to be entitled to such compensation by reason of death, 
remarrying before age 60, marrying, reaching the age of 18, ceasing to 
be dependent, ceasing to be student, or becoming capable of self-
support, the beneficiary or someone acting on the beneficiary's behalf 
shall immediately notify the Office of such event. If the beneficiary, 
or someone acting on the beneficiary's behalf, receives a check which 
includes payment of compensation for any period after the date when 
entitlement ceased for any of the above reasons, the check shall be 
promptly returned to the Office. The terms marrying and remarrying 
include common law marriage as recognized and defined by state law in 
the state where the beneficiary resides.
    (b) An event as described in paragraph (a) of this section which 
results in the termination of compensation to a beneficiary may also 
result in a reapportionment of the amount of compensation payable to one 
or more of the remaining beneficiaries. Similarly, the birth of a 
posthumous child of the deceased employee may also 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 the Office of the birth and submit a certified 
copy of the birth certificate.
[52 FR 10511, Apr. 1, 1987]

         Determinations of Claims, Hearing and Review Procedures



Sec. 10.130  Processing of claims.

    Claims for compensation for disability and death are processed by 
claims examiners of the Office, whose duty it

[[Page 26]]

is to apply the law to the facts as reported, received, or obtained upon 
investigation. The Federal Employees' Compensation Act, as amended, 
requires that a decision with respect to entitlement contain findings of 
fact and be based on consideration of the claim presented by the 
claimant, the report by his or her immediate official superior, and the 
completion of such investigation as the Office may deem necessary. There 
is no required procedure for the production of evidence but the evidence 
should be in written form. The final authority in the Office in the 
determination of a claim is vested in the Director of the Office. The 
decision shall contain findings of fact and a statement of reasons. A 
copy of the decision, together with information as to the right to a 
hearing, to a reconsideration, and to an appeal to the Employees' 
Compensation Appeals Board, shall be mailed to the claimant's last known 
address. If the claimant is represented before the Office, a copy of the 
decision will also be mailed to such representative. At the time the 
decision is issued, a copy will also be sent to the claimant's employing 
agency.
[52 FR 10511, Apr. 1, 1987]



Sec. 10.131  Request for a hearing.

    (a) Any claimant not satisfied with a decision of the Office shall 
be afforded an opportunity for an oral hearing before an Office 
representative designated by the Director. A hearing must be requested 
in writing within 30 days of the date of issuance of the decision and be 
made to the Office as set forth in the decision. A claimant is not 
entitled to an oral hearing if the request is not made within 30 days of 
the date of issuance of the decision as determined by the postmark of 
the request, or if a request for reconsideration of the decision is made 
pursuant to 5 U.S.C. 8128(a) and Sec. 10.138(b) of this subpart prior to 
requesting a hearing, or if review of the written record as provided by 
paragraph (b) of this section has been obtained. At an oral hearing, the 
claimant shall be afforded the opportunity to present oral testimony 
and/or written evidence in further support of the claim. A claimant may 
change his or her selection of an oral hearing to a review of the 
written record as provided by paragraph (b) of this section; however, 
such written request for change must be made within 30 days after the 
date of the Office's acknowledgment of receipt of the initial request.
    (b) In lieu of an oral hearing, a claimant shall be afforded an 
opportunity for a review of the written record by an Office 
representative designated by the Director. Such review will not involve 
oral testimony or attendance of the claimant; however, the claimant may 
submit any written evidence or argument which he or she believes 
relevant. A review of the written record must be requested in writing 
within 30 days of the date of issuance of the decision, specify the 
decision and/or issue which is the subject of the request, and be made 
to the Office as set forth in the decision. A claimant is not entitled 
to a review of the written record if the request is not made within 30 
days of the date of issuance of the decision as determined by the 
postmark of the request, or if a request for reconsideration of the 
decision is made pursuant to 5 U.S.C. 8128(a) and Sec. 10.138(b) of this 
subpart prior to requesting a review of the written record, or if an 
oral hearing has been obtained as provided by paragraph (a) of this 
section. A claimant may change his or her selection of a review of the 
written record to an oral hearing as provided by paragraph (a) of this 
section; however, such written request for change must be made within 30 
days after the date of the Office's acknowledgment of receipt of the 
initial request. Where timely request for a review of the written record 
is received, the Office shall furnish the employing agency with a copy 
of the claimant's request and allow 15 days for the agency to submit any 
comments and/or documents which it believes relevant and material to the 
issue in question. Any comments or documents submitted by the agency are 
subject to review and comment by the claimant within 15 days following 
the date the Office sends any such agency submission to the claimant. 
Following a review of the record and any evidence submitted, the Office 
representative shall decide the claim and inform the claimant, the 
claimant's

[[Page 27]]

representative and the employing agency of the decision.
[52 FR 10511, Apr. 1, 1987]



Sec. 10.132  Time and place of hearing; prehearing conference.

    The Office representative shall set the time and place of the 
hearing and shall mail written notice thereof to the claimant, the 
claimant's representative, and the employing agency at least 15 days 
prior to the hearing. When practicable, the hearing will be set at a 
time and place convenient for the claimant. At the request of the 
claimant, the Office representative may schedule a prehearing conference 
to further define or clarify the issues. Request for such a conference 
must be made to the Office representative in writing at least 5 days 
prior to the scheduled date of the hearing. The decision whether or not 
to schedule a prehearing conference shall be solely within the 
discretion of the Office representative.
[52 FR 105011, Apr. 1, 1987]



Sec. 10.133  Conduct of hearing.

    (a) In conducting the hearing, the Office representative shall not 
be 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 may conduct the hearing in such manner as to best 
ascertain the rights of the claimant. For this purpose, the 
representative shall receive such relevant evidence as may be adduced by 
the claimant and shall, in addition, receive such other evidence as the 
representative may determine to be necessary or useful in evaluating the 
claim. Evidence may be presented orally or in the form of written 
statements and exhibits. The hearing shall be recorded. The recording, 
either by magnetic tape or by transcription, shall be made a part of the 
case record.
    (b) Pursuant to 5 U.S.C. 8126 the Office may whenever necessary:
    (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 proceedings conducted for the purpose of 
determining the validity of any claim under this part.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10512, Apr. 1, 1987]



Sec. 10.134  Subpoenas; witness fees.

    (a) When reasonably necessary for full presentation of a case, an 
Office hearing representative may upon his or her own motion, or upon 
request of the claimant, issue subpoenas for the attendance and 
testimony of witnesses and for the production of books, records, 
correspondence, papers, or other documents which are relevant and 
material to any matter in issue at the hearing. A claimant who desires 
the issuance of a subpoena shall, not less than 20 days prior to the 
date fixed for the hearing, file with the Office representative a 
written request therefor, designating the witness or documents to be 
produced, and describing the address and location thereof with 
sufficient particularity to permit such witness or documents to be 
found. The request for a subpoena shall state the pertinent facts which 
the claimant expects to establish by such witnesses or documents and 
whether such facts could be established by other evidence without the 
use of a subpoena. A subpoena issued under the provisions of this 
section shall be issued in the name of the Office hearing 
representative, and shall be served either in person by an authorized 
representative of the Office 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. Where service is made in 
person by an authorized Office representative, such representative shall 
make an affidavit stating that he or she personally served a copy of the 
subpoena upon the person named therein. Where service is by certified 
mail, the signed returned post office receipt shall serve as proof of 
service.
    (b) Non-government witnesses subpoenaed under this section who have 
submitted evidence into the case record at the request of the Office 
shall be paid the same fees and mileage as are paid for like services in 
the District

[[Page 28]]

Court of the United States where the subpoena was returnable. However, 
in the case of an expert witness, the witness fee shall not exceed the 
local customary fee for such service. Fees and mileage requested by such 
witnesses shall be paid by the Office.
    (c) Non-government witnesses subpoenaed under this section who have 
submitted evidence into the case record at the request of the claimant 
or who have not submitted evidence into the case record but have 
testimony which is relevant and material to the issue in question and 
were subpoenaed at the request of the claimant, shall be paid the same 
fees and mileage as are paid for like services in the District Court of 
the United States where the subpoena was returnable. However, in the 
case of an expert witness, the witness fee shall not exceed the local 
customary fee for such service. Fees and mileage requested by such 
witnesses shall be paid by the claimant.
[52 FR 10513, Apr. 1, 1987]



Sec. 10.135  Employing agency attendance at hearings and submission of evidence.

    The employing agency does not have the right to request a hearing 
pursuant to 5 U.S.C. 8124. However, the employing agency has an interest 
in the outcome of the hearing and frequently possesses information 
pertinent to issues raised at the hearing. Therefore, the employing 
agency shall be afforded the opportunity to have an agency 
representative in attendance at the hearing and/or to request that it 
receive a copy of the hearing transcript. Where the employing agency 
sends a representative, the representative will attend primarily in the 
role of an observer without the right to question the claimant or make 
any argument. However, since the claimant is entitled to present 
evidence in support of the claim, the agency representative may, upon 
the specific request of the claimant, be called upon by the Office 
representative to give oral testimony. Where the employing agency 
requests that it receive a copy of the hearing transcript, the agency 
will be allowed 15 days following release of the transcript to submit 
comments or additional material for inclusion in the record. Any 
comments or materials submitted by the agency are subject to review and 
comment by the claimant within 15 days following the date the Office 
sends any such agency submission to the claimant.
[52 FR 10512, Apr. 1, 1987]



Sec. 10.136  Termination of hearing; release of decision.

    The Office representative shall fix the time within which evidence 
will be received and shall terminate the hearing by mailing a copy of 
the decision, setting forth the basis therefor, to the claimant's last 
known address and to the claimant's representative, if any. A copy of 
the decision will also be mailed to the employing agency.
[52 FR 10512, Apr. 1, 1987]



Sec. 10.137  Postponement; withdrawal or abandonment of request for hearing.

    (a) A scheduled hearing may be postponed or cancelled at the option 
of the Office, or upon written request of the claimant if the request is 
received by the Office at least 3 days prior to the scheduled date of 
the hearing and good cause for the postponement is shown. The unexcused 
failure of a claimant to appear at a hearing or late notice may result 
in the assessment of costs against such claimant.
    (b) A claimant may withdraw a request for a hearing at any time by 
written notice to the Office representative before the hearing is held, 
or on the record at the hearing.
    (c) A claimant who fails to appear at a scheduled hearing may 
request in writing within 10 days after the date set for the hearing 
that another hearing be scheduled. Where good cause for failure to 
appear is shown, another hearing will be scheduled. The failure of the 
claimant to request another hearing within 10 days, or the failure of 
the claimant to appear at the second scheduled hearing without good 
cause shown, shall constitute abandonment of the request for a hearing. 
Where good cause is shown for failure to appear at the second scheduled 
hearing, another hearing will be scheduled. Unless extraordinary 
circumstances such

[[Page 29]]

as hospitalization, a death in the family, or similar circumstances 
which prevent the claimant from appearing are demonstrated, failure of 
the claimant to appear at the third scheduled hearing shall constitute 
abandonment of the request for a hearing.
[52 FR 10512, Apr. 1, 1987]



Sec. 10.138  Review of decision.

    (a) Under the discretionary authority granted by 5 U.S.C. 8128(a), 
the Office may review an award for or against the payment of 
compensation at any time on its own motion and may, as a result of that 
review, affirm, reverse or modify the previous decision and inform the 
claimant, the claimant's representative and the employing agency of the 
decision.
    (b)(1) Under the discretionary authority granted by 5 U.S.C. 
8128(a), the Office may review an award for or against the payment of 
compensation on application of the claimant. No formal application for 
review is required, but the claimant must make a written request 
identifying the decision and the specific issue(s) within the decision 
which the claimant wishes the Office to reconsider, and give the reasons 
why the decision should be changed. Where the decision or issue cannot 
be reasonably determined from the claimant's application for review, the 
application will be returned to the claimant for clarification without 
further action by the Office with respect to the application. The 
claimant may obtain review of the merits of the claim by--
    (i) Showing that the Office erroneously applied or interpreted a 
point of law, or
    (ii) Advancing a point of law or a fact not previously considered by 
the Office, or
    (iii) Submitting relevant and pertinent evidence not previously 
considered by the Office.
    (2) Any application for review of the merits of the claim which does 
not meet at least one of the requirements listed in paragraphs (b)(1)(i) 
through (iii) of this section will be denied by the Office without 
review of the merits of the claim. Such a denial of application is not 
subject to review under this section or to hearing under Sec. 10.131. 
Further, the Office will not review under this paragraph a decision 
denying or terminating a benefit unless the application is filed within 
one year of the date of that decision. Where proper application is 
submitted and the Office finds that merit review of the claim is 
warranted, the Office shall furnish the employing agency with a copy of 
the claimant's application for reconsideration and allow 15 days for the 
agency to submit any comments and/or documents which it believes 
relevant and material to the issue in question. Any comments or 
materials submitted by the agency are subject to review and comment by 
the claimant within 15 days following the date the Office sends any such 
agency submission to the claimant. The Office shall then review the 
decision and any agency submission, decide the claim, and inform the 
claimant, the claimant's representative and the employing agency of the 
decision.
[52 FR 10512, Apr. 1, 1987]



Sec. 10.139  Review by the Employee's Compensation Appeals Board.

    Final decisions of the Office, except decisions concerning the 
amounts payable for medical services, and decisions concerning exclusion 
and reinstatement of medical providers, are subject to review by the 
Employees Compensation Appeals Board (ECAB), U.S. Department of Labor, 
under rules of procedure set forth in part 501 of this title.
[49 FR 18978, May 3, 1984. Redesignated at 52 FR 10512, Apr. 1, 1987]



Sec. 10.140  Participation in claims process by employing agency.

    Proceedings conducted with respect to claims filed under the Act are 
nonadversary in character. Accordingly, a claimant's employing agency 
shall not have the right, except as provided in subpart C of this part, 
to actively participate in the claims adjudication process. However, the 
employing agency may, under circumstances other than that described in 
Sec. 10.102(b), investigate the circumstances surrounding an injury to 
an employee and the extent of disability (e.g., an agency may 
investigate an employee's activities where it appears the employee 
alleging total disability may be performing

[[Page 30]]

other employment or may be engaging in activities which would indicate 
less than total disability). Further, the agency has the responsibility 
to submit to the Office at any time all relevant and probative factual 
and medical evidence in its possession or which it may acquire through 
investigation or other means. All evidence submitted will be considered 
and acted upon by the Office as appropriate, and the Office will inform 
the claimant, the claimant's representative and the employing agency of 
such action. In those instances where an employing agency contests a 
claim at time of initial submission and the claim is subsequently 
approved, the Office will notify the agency of the rationale for 
approving the claim.
[52 FR 10513, Apr. 1, 1987]



Sec. 10.141  Representation of the Director.

    The Director shall be represented in proceedings with respect to any 
claim conducted before the Employees' Compensation Appeals Board (ECAB) 
by attorneys from the Office of the Solicitor of Labor.
[52 FR 10513, Apr. 1, 1987]



Sec. 10.142  Representation of claimants.

    Any claimant may appoint an individual to represent his or her 
interest in any proceeding for determination of a claim under this part. 
Such appointment shall be made in writing or on the record at the 
hearing. A written notice appointing a representative shall be signed by 
the claimant or his or her legal guardian and shall be sent to the 
Office. In any case such representative must be qualified under 
Sec. 10.143.



Sec. 10.143  Qualification of representative.

    (a) Attorney. Any attorney in good standing who is admitted to 
practice before a court of a State, territory, district, or insular 
possession or before the Supreme Court of the United States or other 
Federal court and is not, pursuant to any provision of law, prohibited 
from acting as a representative may be appointed as a representative.
    (b) Other person. Any other person with the approval of the Office 
may be appointed as a representative so long as that person is not, 
pursuant to any provision of law, prohibited from acting as a 
representative.



Sec. 10.144  Authority of representative.

    A representative, appointed and qualified as provided in this part, 
may make or give on behalf of the claimant any request or notice 
relative to any proceeding before the Office under the Act, including 
hearing and review. A representative shall be entitled to present or 
elicit evidence and to make allegations as to facts and law in any 
proceeding affecting the claimant and to obtain information with respect 
to the claim to the same extent as the claimant. Notice to any claimant 
of any administrative action, determination, or decision, or request to 
any party for the production of evidence shall be sent to the 
representative, and the notice or request shall have the same force and 
effect as if it has been sent to the claimant.
[52 FR 10513, Apr. 1, 1987]



Sec. 10.145  Fees for services.

    (a) No fee for representation services rendered in respect to a 
claim under this part shall be valid, unless prior approval of such fee 
has been obtained from the Office.
    (b) The fee approved by the Office will be determined on the basis 
of the actual necessary work performed and will generally include but 
are not limited to the following factors:
    (1) Usefulness of the representative's services to the claimant.
    (2) The nature and complexity of the claim.
    (3) The actual time spent on development and presentation of the 
claim.
    (4) The amount of compensation accrued and potential future 
payments.
    (5) Customary local charges for similar services.
    (6) Professional qualifications of the representative.
    (c) In every case where a representative's fee is desired, an 
application for approval of the fee shall be made to the Office. The 
application should be made when the representative has submitted the 
final piece of information believed

[[Page 31]]

necessary for the adjudication of the claim. Each request for approval 
of a fee shall be accompanied by a complete itemized statement, in 
duplicate, describing the services rendered. Such itemization shall 
contain the following information:
    (1) The dates that services began and ended in addition to all dates 
on which conferences were held, documents or letters prepared, telephone 
calls made, etc.
    (2) A description of each service rendered with the amount of time 
spent on each type of service.
    (3) The amount of the fee which the representative desires for 
services performed.
    (4) The amount of fees requested, charged or received for services 
rendered on behalf of the claimant before any State or Federal court or 
agency, in a similar or related matter.
    (5) A statement explaining the basis for the amount of the fee 
requested.
    (d) The representative shall arrange for the claimant to review the 
request for a fee and to comment as to the services provided and as to 
the reasonableness of the fee. The claimant's written comments should 
accompany the application for approval of a fee submitted to the Office.
    (e) In considering any request for such a fee, the Office will not 
recognize such items as:
    (1) Work performed before any other State or Federal agency or court 
including the Employees' Compensation Appeals Board, and any State or 
Federal Court.
    (2) Any contract for the payment of an agreed sum or any contingent 
contract.
    (3) Expenses incurred by the representative for services performed.
    (f) The Office will not pay or assist in the collection of any 
representative fee. Neither will compensation payments be routinely 
forwarded to the representative with or without the claimant's approval.
    (g) Any claimant aggrieved or adversely affected by an award of a 
fee may request a hearing or reconsideration by the Office, or may 
request review by the Employees' Compensation Appeals Board.
    (h) A representative aggrieved or adversely affected by an award of 
a fee may request review by the Employees' Compensation Appeals Board.
    (i) Any person who receives a fee, other consideration or gratuity 
on account of services rendered with respect to a claim under this part, 
unless approved by the Office, or who solicits employment for himself or 
another in respect to a case or claim under (or to be brought under) 
this Act shall be guilty of a misdemeanor under 18 U.S.C. 292 and upon 
conviction of each offense, will be punished by a fine of not more than 
$1,000 or imprisoned not to exceed 1 year, or both. Utilization of an 
escrow deposit of funds by a representative for the deposit of a 
client's funds, prior to approval by the Office of the representative's 
fee, is not considered receipt or collection of a fee by the 
representative; provided, the escrow deposit of funds is one made by the 
claimant/client into the hands of a third party to be held by that third 
party until receipt of the Office's approval of the representative's 
fee, and then delivered by the third party to the representative in 
accordance with the decision of the Office and the provisions of the 
escrow agreement.

(Approved by the Office of Management and Budget under control number 
1215-0115)

[40 FR 6877, Feb. 14, 1975, as amended at 47 FR 145, Jan. 5, 1982; 52 FR 
10513, Apr. 1, 1987]



Secs. 10.146--10.149  [Reserved]



Sec. 10.150  Statement relative to substantive rules.

    (a) The principal function of the Office and its subordinate parts 
is that of adjudicating claims for workers' compensation. This function 
is quasijudicial in character and involves the application of statutes 
and principles of law to resolve factual situations. This field of 
activity is within the specialized branch of the law generally referred 
to as ``workers' compensation,'' and has its own particularized 
principles which have general applicability to workers' compensation 
statutes (State and Federal), as such statutes have certain common or 
underlying similarity in respect to the meaning of terms and phrases, 
and in respect to

[[Page 32]]

scope, jurisdiction, and general basic concepts of employer liability.
    (b) In the administration of the Act, the Office has one general 
policy, which is to follow and to adhere to the principles of workers' 
compensation law as stated in the opinions of the Supreme Court, the 
Federal Circuit Courts of Appeal, and the District Courts of the United 
States, as they may appropriately be applied or have been determined by 
the Employees' Compensation Appeals Board (ECAB) to apply in like 
situations arising under the Act. In addition, decisions and opinions of 
the judicial tribunals of the several States furnish principles of law 
of general applicability in the specialized field of workers' 
compensation, which form parts of the foundation of general principles 
relied upon in the application and interpretation of the Act. The Office 
applies the provision of the Act applicable in respect to a particular 
case or situation, to the extent that such provision can readily be 
applied without extrinsic aid, but where such aid is necessary the 
source thereof is the body of principles embodied in authoritative 
decisions of the courts and the ECAB within such well-recognized branch 
of the law.

                         Representative Payment

    Source:  Sections 10.160 through 10.166 appear at 52 FR 10514, 
10515, Apr. 1, 1987, unless otherwise noted.



Sec. 10.160  Indications for designation of a representative payee.

    When the Office determines that a beneficiary is incapable of 
managing or directing the management of benefits either because of a 
mental or physical disability, or because of legal incompetence, or 
because the individual is under 18 years of age, the Office in its sole 
discretion may approve an individual designated or appointed to serve as 
the representative payee for funds due the eligible beneficiary.



Sec. 10.161  Selection of a payee.

    (a) In approving a payee, the Office shall approve the person, 
agency, organization or institution which, in its judgment, will best 
serve the interest of the beneficiary. In making its decision the Office 
shall consider:
    (1) The relationship of the person to the beneficiary;
    (2) The amount of interest that the person shows in the welfare of 
the beneficiary;
    (3) Any legal authority the person, agency, organization or 
institution has to act on behalf of the beneficiary;
    (4) Whether the potential payee has custody of the beneficiary;
    (5) Whether the potential payee is in a position to know of and to 
look after the needs of the beneficiary.
    (b) For beneficiaries 18 years old or older, the general order of 
preference subject to the provisions of paragraph (a) of this section, 
shall be:
    (1) A legal guardian, spouse or other relative who has custody of 
the beneficiary or who demonstrates strong concern for the personal 
welfare of the beneficiary;
    (2) A friend who has custody of the beneficiary or demonstrates 
strong concern for the personal welfare of the beneficiary;
    (3) A public or nonprofit agency or institution having custody of 
the beneficiary;
    (4) A private institution operated for profit and licensed under 
State law which has custody of the beneficiary; and
    (5) Persons other than above who are qualified to carry out the 
responsibilities of a payee and who are able and willing to serve as a 
payee for a beneficiary.
    (c) For beneficiaries under age 18, the general order of preference 
subject to the provisions of paragraph (a) of this section shall be--
    (1) A biological or adoptive parent who has custody of the 
beneficiary, or a legal guardian;
    (2) A biological or adoptive parent who does not have custody of the 
beneficiary, but is contributing to the beneficiary's support and is 
demonstrating strong concern for the beneficiary's well-being;
    (3) A biological or adoptive parent who does not have custody of the 
beneficiary and is not contributing toward his or her support, but is 
demonstrating strong concern for the beneficiary's well-being;
    (4) A relative or stepparent who has custody of the beneficiary;

[[Page 33]]

    (5) A relative who does not have custody of the beneficiary but is 
contributing toward the beneficiary's support and is demonstrating 
concern for the beneficiary's well-being;
    (6) A relative or close friend who does not have custody of the 
beneficiary but is demonstrating concern for the beneficiary's well-
being; and
    (7) An authorized social agency or custodial institution.



Sec. 10.162  Responsibilities of a representative payee.

    A representative payee has a responsibility to--
    (a) Spend or invest payments received only for the use and benefit 
of the beneficiary in a manner and for the purposes he or she determines 
to be in the best interests of the beneficiary, subject to the 
guidelines contained in Sec. 10.163;
    (b) Notify the Office of any event that would affect the amount of 
benefits the beneficiary receives or the right of the beneficiary to 
receive benefits;
    (c) Submit to the Office, upon its request, a written report 
accounting for the benefits received; and
    (d) Notify the Office of any change in the payee's circumstances 
that would affect performance of the payee's responsibilities.



Sec. 10.163  Use of benefit payments.

    To assure that the general welfare of the beneficiary is properly 
served, benefit payments received by a representative payee shall be 
used in the following manner, and in the prescribed order:
    (a) Current maintenance, including costs incurred in obtaining food, 
shelter, clothing, medical care, and personal comfort items.
    (b) Institutional care, including the customary charges made by the 
institution, as well as expenditures for those items which will aid in 
the beneficiary's recovery or release from the institution or expenses 
for personal needs which will improve the beneficiary's conditions while 
in the institution.
    (c) Support of the beneficiary's legal dependents after current 
maintenance needs or institutional care of the beneficiary are met; and
    (d) Claims of creditors only if the current and reasonably 
foreseeable needs of the beneficiary are met.



Sec. 10.164  Conservation and investment of benefit payments.

    If payments either in whole or in part are not needed for any of the 
purposes listed in Sec. 10.163 of this part, they shall be conserved or 
invested on behalf of the beneficiary in non-speculative accounts. 
Conserved funds should be invested in accordance with rules followed by 
trustees. Any investment must show clearly that the payee holds the 
property in trust for the beneficiary. Preferred investments for excess 
funds are U.S. Savings Bonds and deposits in an interest or dividend 
paying account in a bank, trust company, credit union, or savings and 
loan association which is insured under either Federal or State law. The 
account must be in a form which shows clearly that the representative 
payee has only a fiduciary and not a personal interest in the funds. The 
account should provide for withdrawal upon demand without penalty. The 
interest and dividends, as well as all other profits, which result from 
an investment are the property of the beneficiary and may not be 
considered to be the property of the payee.



Sec. 10.165  Termination of representation.

    The services of a representative payee may be terminated when:
    (a) The payee has not used the funds in the interests of the 
beneficiary as stipulated in this subpart;
    (b) The payee has not discharged other responsibilities described in 
this subpart, or has not done so in a timely manner;
    (c) The payee dies, wishes to be discharged from responsibility, or 
is unable to carry out the responsibilities of payee;
    (d) The Office, after receipt of competent evidence, determines that 
the beneficiary is capable of managing his or her own funds; or
    (e) A minor beneficiary attains majority.

[[Page 34]]



Sec. 10.166  Accounting for benefit payments.

    A representative payee is accountable for the use of benefit 
payments. The Office may require periodic written reports from the 
representative payee, and in certain cases, verification of how the 
funds were used. The representative payee shall keep records of how the 
funds were used so as to be able to furnish the following information to 
the Office:
    (a) The amount of benefit payments on hand at the beginning of the 
accounting period;
    (b) A description of how the benefit payments were used;
    (c) An accounting of the amounts of payments which were saved or 
invested;
    (d) The place(s) of residence of the beneficiary during the 
accounting period; and
    (e) The amount of the beneficiary's income from other sources during 
the accounting period so as to assist the Office in evaluating the use 
of the benefit payments.



                     Subpart C--Continuation of Pay

                                 General



Sec. 10.200  Statutory provisions.

    (a) Pub. L. 93-416, approved September 7, 1974, significantly 
revised the Act to provide that specified employees who file a claim for 
a period of wage loss caused by a traumatic injury shall be entitled, 
under certain circumstances, to have their regular pay continued for a 
period not to exceed 45 days.
    (b) Continuation of pay shall be considered regular income and not 
compensation and unlike compensation, shall be subject to all taxes and 
other payroll deductions applicable to regular income.
[52 FR 10515, Apr. 1, 1987]

                               Procedures



Sec. 10.201  Right to continuation of pay.

    (a) An employee is not entitled to continuation of pay unless:
    (1) The employee is one of the types of employees listed in 
Sec. 10.5(a)(11)(i), (iii), or (v), except that an individual selected 
pursuant to chapter 121 of title 28 and serving as a petit or grand 
juror but who is not otherwise an employee of the United States is not 
entitled to continuation of pay;
    (2) The employee sustains a traumatic job-related injury;
    (3) The employee files claim for a period of wage loss, as required 
by 5 U.S.C. 8118(a), within 30 days of the injury on a form approved by 
the Secretary. (Form CA-1 may be used for this purpose.); and
    (4) The employee's disability begins within 90 days of the date of 
injury.
    (b) An employee entitled to continuation of pay shall have regular 
pay continued without a break in time for a period not to exceed 45 
calendar days of disability, unless the right to continuation of pay is 
controverted and pay is terminated under Sec. 10.203 or is terminated 
under Sec. 10.204. Where the employee stops work due to the disabling 
effects of the injury, the 45-day period starts with the first day or 
shift following the date or shift of injury during which the claimant is 
disabled, provided the disability begins within 90 days of the 
occurrence of the injury. With regard to the date of injury, the 
employing agency will keep the employee in a pay status for any fraction 
of the day or shift of injury for which the employee was disabled with 
no ``charge'' to the 45-day period. If the employee stops work for a 
part of a day or shift other than the day or shift of injury, that day 
or shift will be considered one calendar day for the purpose of counting 
45 days. If a disabled employee returns to work with duties other than 
the duties performed at the time of injury, continuation of pay is 
chargeable only when there has been a formal assignment to an 
established job which is normally paid at a lower salary and would 
otherwise result in loss of income to the employee. Continuation of pay 
must be charged against the employee's 45-day entitlement when, due to 
the effects of the injury upon the employee, (1) A personnel action has 
been taken to assign or detail the employee to an identified position 
for which a position description

[[Page 35]]

exists which is classified at a lower salary level than that earned by 
the employee when injured; or (2) a personnel action has been taken to 
change the employee to a lower grade, or to a lower rate of basic pay. 
When, due to the effects of the injury, an employee is changed to a 
different schedule of work which results in loss of salary or premium 
pay (e.g., Sunday pay or night differential) authorized for the 
employee's normal administrative workweek, the employee is entitled to 
continuation of pay for such wage loss. If the employee's job-related 
disability continues after entitlement to continuation of pay ceases, 
the employee shall be entitled to receive compensation subject to the 
provisions of 5 U.S.C. 8117.
    (c) Where an employee's pay is continued under this subpart, it 
shall not be interrupted as a part of a disciplinary action, nor shall 
it be terminated as a result of a disciplinary action which terminates 
employment unless final written notice of termination of employment for 
cause was issued to the employee prior to the date of injury.
    (d) The administration and interpretation of the Act, including 
section 8118 of the Act, is the function of the Office. While the 
employing agency shall make certain preliminary decisions with respect 
to an employee's entitlement to pay continuation under this subpart, 
final determinations as to such entitlement are a function of the 
Office.
    (e) If the Office finds that the employee is not entitled to 
continuation of pay after it has been paid, the payments, at the 
employee's option, shall be charged to annual or sick leave or 
considered overpayments of pay under 5 U.S.C. 5584.
    (f) If the Office determines that pay has been continued at an 
incorrect rate, the Office shall notify the employing agency and the 
employee of the correct rate of pay, and the employing agency shall make 
the necessary adjustment.
[52 FR 10515, Apr. 1, 1987]



Sec. 10.202  Election of annual or sick leave.

    An employee may use accumulated annual or sick leave, or such leave 
as may be advanced by the employing agency, instead of claiming 
continuation of pay; however, the time provisions of 5 U.S.C. 8117, 
governing the date upon which an employee's entitlement to compensation 
begins, do not begin to run until the use of annual or sick leave ends. 
The ``buy back'' provisions specified in Sec. 10.310 may not be used to 
repurchase the leave taken while an employee was otherwise eligible for 
pay continuation as provided by this subpart. An election to use annual 
or sick leave is not irrevocable and an employee may subsequently 
request continuation of pay in lieu of previously requested annual or 
sick leave; however, such request must be made within one year of the 
date the leave was used or the date of the Office's approval of the 
claim, whichever is later. Where an employee is eligible, the employing 
agency shall, subject to the 45-day limitation, convert and restore the 
leave previously used and, if any of the 45 days of COP remains unused, 
shall continue pay prospectively. The use of leave may not be used to 
delay or extend the 45-day continuation of pay period or to otherwise 
affect the time limitations as provided by section 8117. Therefore, 
where leave is used during a period when COP is otherwise payable, and 
the employee does not request that such leave be converted and restored, 
the 45 days will be counted as though the employee had been in a 
continuation of pay status.
[52 FR 10516, Apr. 1, 1987]



Sec. 10.203  Controversion by employing agency.

    (a) With respect to continuation of pay under 5 U.S.C. 8118, the 
employing agency shall, on the basis of information submitted by the 
employee, or secured on investigation, controvert a claim and terminate 
an employee's pay only if:
    (1) The disability is caused by an occupational disease or illness; 
or
    (2) The employee is the type employee defined by 
Sec. 10.5(a)(11)(ii) or (iv), or is an individual selected pursuant to

[[Page 36]]

chapter 121 of title 28 and serving as a petit or grand juror and who is 
not otherwise an employee of the United States;
    (3) The employee is neither a citizen nor a resident of the United 
States or Canada; or
    (4) The injury occurred off the employing agency's premises and the 
employee was not performing official duties; or
    (5) The injury was caused by the employee's willful misconduct, or 
the employee's intent to kill or injure himself or herself or another 
person, or was proximately caused by the employee's intoxication by 
alcohol or illegal drugs; or
    (6) A written claim for wage loss required by 5 U.S.C. 8118(a) was 
not filed within 30 days after the date of injury; or
    (7) The employee first stopped work as a result of the injury more 
than 90 days following the injury; or
    (8) The employee reports the injury after employment has terminated; 
or
    (9) The employee is enrolled in the Civil Air Patrol, Peace Corps, 
Job Corps, Youth Conservation Corps, Work Study Programs, or another 
similar group.
    (b) If for reasons other than those listed in paragraph (a) of this 
section, the agency believes the employee is not entitled to 
continuation of pay, the agency may controvert an employee's right to 
continuation of pay; however, the employee's regular pay must be 
continued and may not be interrupted during the 45-day period unless the 
controversion is sustained by the Office and the agency is so notified, 
or unless entitlement ceases under the provisions of Sec. 10.204 of this 
subpart.
    (c) To controvert a claim for continuation of pay, the employing 
agency shall complete the appropriate section of Form CA-1 and submit 
detailed information in support of the controversion to the Office.
    (d) If the Office determines that the employing agency has 
incorrectly controverted and terminated the employee's pay, the Office 
shall notify the agency and the employee's pay shall be continued for a 
period not to exceed 45 days or as otherwise directed by the Office, and 
the Office shall notify the agency to convert periods of sick or annual 
leave or leave without pay to COP.
[52 FR 10515, Apr. 1, 1987]



Sec. 10.204  Termination and forfeiture of continuation of pay.

    (a) Where pay is continued after an employee stops work due to a 
disabling traumatic injury, such pay shall be terminated if:
    (1) Within 10 work days after the date the employee submits claim 
for continuation of pay, including such claim for a recurrence of 
disability, the employing agency has not received prima facie medical 
evidence that the employee sustained a disabling traumatic injury, 
except that pay shall be continued without interruption in the absence 
of such medical evidence if investigation shows to the official 
superior's satisfaction that the employee sustained a disabling 
traumatic injury. Where medical evidence is received by the agency more 
than 10 work days after claim is made for continuation of pay, the 
agency shall continue the employee's pay retroactive to date of 
termination provided the medical evidence supports injury-related 
disability beyond the 10 work-day period, and restore to the employee's 
account any annual or sick leave the employee may have used during that 
period. The provisions of this paragraph also apply to periods of 
recurrent disability as described in Sec. 10.208; or
    (2) The employing agency receives evidence that the attending 
physician has found the employee no longer disabled (i.e., the employee 
can perform the duties of the position held at the time of injury); or
    (3) The employing agency receives evidence that the attending 
physician has found the employee to be partially disabled and the 
employee refuses suitable work which has been offered by the agency in 
accordance with Sec. 10.207, or fails to respond to such offer within 5 
work days of receipt of the offer; or
    (4) The employee's scheduled period of employment expires or 
employment is otherwise terminated, provided the date of termination of 
employment is established prior to the date of injury. (See also 
Sec. 10.201(c)); or

[[Page 37]]

    (5) The employing agency receives notification from the Office that 
pay should be terminated; or
    (6) The 45-day continuation of pay period expires.
    (b) When an employee refuses to submit to or obstructs an 
examination required by the Office under the provisions of 5 U.S.C. 
8123(a), the right to continuation of pay under this subpart may be 
suspended until the refusal or obstruction stops. Pay otherwise paid or 
payable under this subpart for the period of the refusal or obstruction 
may be forfeited and, where already paid, is subject to the provisions 
of Sec. 10.201(e).
    (c) If the Office determines that the employing agency has 
incorrectly terminated the employee's pay or selected an incorrect date 
of termination, the Office shall instruct the agency to take appropriate 
corrective action.
[52 FR 10516, Apr. 1, 1987]



Sec. 10.205  Pay defined for continuation of pay purposes.

    (a) For a full or part-time worker, either permanent or temporary, 
who works the same number of hours each week of the year, or each week 
of the period of appointment if less than one year, the weekly pay rate 
shall be the hourly pay rate on the date of injury multiplied by the 
number of hours worked each week, excluding overtime.
    (b) For a part-time worker, either permanent or temporary, who does 
not work the same number of hours each week but who does work each week 
of the year, or each week of the period of appointment if less than one 
year, the weekly pay rate shall be the average weekly earnings 
established by dividing the total earnings during the one year 
immediately preceding the date of injury, excluding overtime, by the 
number of weeks worked during the one year period. For the purposes of 
this computation, if the employee worked only a part of a workweek, such 
week is counted as one week.
    (c) For all WAE (when actually employed), intermittent and part-time 
workers, either permanent or temporary, who do not work each week of the 
year, or each week of the period of appointment if less than one year, 
the weekly pay rate shall be the average weekly earnings established by 
dividing the total earnings during the one year immediately preceding 
the date of injury, excluding overtime, by the number of weeks worked 
during that one year period. For the purposes of this computation, if 
the employee worked only a part of a workweek, such week is counted as 
one week. However, the average weekly earnings may not be less than 150 
times the average daily wage earned in the employment during the days 
employed within the one year period immediately preceding the date of 
injury divided by 52 weeks.
    (d) Premium, Sunday and holiday pay, night and shift differential, 
or other extra pay shall be included when computing wages for 
continuation of pay, but overtime pay shall not be included.
    (e) Changes in pay or salary which would have otherwise occurred 
during the 45-day period (e.g., promotion, within-grade increase, 
demotion, termination of a temporary detail, etc.) are to be reflected 
in the continuation of an employee's pay under this subpart, and are to 
take effect at the time the event would otherwise have occurred.
[52 FR 10516, Apr. 1, 1987]



Sec. 10.206  Agency accounting and reporting of continuation of pay.

    (a) Pending development of a system within the Office for directly 
capturing and tabulating data on continuing payments to employees under 
5 U.S.C. 8118, each agency and instrumentality of the United States 
having an employee who is in a continuation of pay status during the 
calendar quarter shall submit a report to the Office within 30 days 
after the end of each quarter (address: Director, Office of Workers' 
Compensation Programs, U.S. Department of Labor, Washington, DC 20210).
    (b) Quarterly reports are to include data on all continuation of pay 
cases paid in the quarter for only those employees who have returned to 
work or exceeded the 45-day period by the last pay date of the reporting 
agency or instrumentality during the quarter (employees who have not 
returned to work or exceeded the 45-day period by the

[[Page 38]]

last pay date of the quarter are to be reported in the following 
quarter).
    (c) Reported summary data for employees returning to work during the 
quarter is to include:
    (1) Total number of employees provided such continuation of pay.
    (2) Total number of workdays or shifts (full workdays) for which 
these employees were paid during the quarter (and the earlier quarter if 
return to work did not occur during such earlier quarter).
    (3) Total amount paid to all employees during the quarter (and the 
earlier quarter if return to work did not occur during such earlier 
quarter).
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10517, Apr. 1, 1987]

         Official Superior's and Beneficiaries' Responsibilities



Sec. 10.207  Official superior's responsibility in continuation of pay cases.

    (a) Upon receiving notice that an employee has suffered an 
employment-related traumatic injury, an official superior shall:
    (1) Promptly authorize medical care in accordance with subpart E of 
this part;
    (2) Provide the employee with Form CA-1 for reporting the injury and 
upon receipt of the completed form, return to the employee the ``Receipt 
of Notice of Injury'';
    (3) Fully advise the employee of the right to elect continuation of 
regular pay or use annual or sick leave, if the injury is disabling;
    (4) Advise the employee that prima facie medical evidence of a 
disabling traumatic injury must be submitted to the official superior 
within 10 work days of the date disability begins or pay may be 
terminated in accordance with Sec. 10. 204(a)(1);
    (5) Inform the employees whether continuation of pay will be 
controverted, and, if so, whether pay will be terminated and the basis 
for the controversion and termination of pay;
    (6) Submit Form CA-1, completed by the employee and official 
superior, and all other available pertinent information to the Office as 
soon as possible, but no later than 10 work days after the official 
superior has received Form CA-1. If the claim is controverted, the 
official superior will provide an explanation on Form CA-1 or in a 
separate narrative statement or both.
    (b) Upon authorization of medical care, the official superior shall 
advise the employee of his or her obligation to return to work as soon 
as possible and:
    (1) Where the agency has specific alternative positions available 
for partially disabled employees, the agency shall furnish the employee 
with a written description of the specific duties and physical 
requirements of those positions;
    (2) Where, in addition to any specific alternative positions, the 
agency is willing to accommodate the limitations and restrictions 
imposed on the employee by the injury, shall so advise the employee; and
    (3) Shall advise the employee of his or her responsibilities under 
Sec. 10.209 of this subpart.
    (c) The employing agency shall monitor the employee's medical 
progress and duty status by obtaining periodic medical reports. Form CA-
17 is provided for this purpose. Additional information or clarification 
may be obtained by the agency through telephone contact with the 
employee's attending physician provided such contact is by a physician 
or nurse who is an employee of the agency, or by an appropriate 
supervisory official.
    (d) Where the employing agency is notified that the attending 
physician has found the employee to be partially disabled, and the 
employee is able to:
    (1) Perform one of the specific alternative positions referred to in 
Sec. 10.207(b)(1), the employing agency shall notify the employee 
immediately of the description of the job and its physical requirements 
and of the date the job will be available. To facilitate early return to 
work, the agency may contact the employee by telephone, but must provide 
written confirmation of availability as soon as possible thereafter. A 
complete copy of the offer, including the description of the duties of 
the job, the physical requirements and the date of availability, should 
be sent to the Office at the same time as it is sent to the employee.

[[Page 39]]

    (2) Perform restricted or limited duties referred to in 
Sec. 10.207(b)(2), the employing agency shall determine whether duties 
suitable to the employee's limitations and restrictions are available, 
and if so, advise the employee in writing of the duties, their physical 
requirements and availability. To facilitate early return to work, the 
agency may contact the employee by telephone, but must provide written 
confirmation of the offer as soon as possible thereafter. A complete 
copy of any offer made to the employee should also be sent to the Office 
at the same time as it is sent to the employee.

(The information collection requirements contained in paragraph (c) were 
approved by the Office of Management and Budget under control number 
1215-0103)

[52 FR 10517, Apr. 1, 1987]



Sec. 10.208  Recurrence of disability.

    (a) If an employee claims a recurrence of disability, the official 
superior shall promptly complete Form CA-2a. The employee shall request 
on Form CA-2a to continue to receive regular pay or to charge the 
absence to sick or annual leave.
    (b) Where the employee requests continuation of pay, the official 
superior shall continue pay if:
    (1) The original claim of disability has not been denied by the 
Office; and
    (2) Pay has not been continued for the entire 45 days; and
    (3) The disability recurs within 90 days of the date the employee 
first returned to work following the initial period of disability.
    (c) If the employee's pay has been continued for 45 days, or 
disability recurs more than 90 days after the employee first returns to 
work, the employee is entitled to compensation only, provided the claim 
is approved by the Office, and the employing agency may not continue 
regular pay. An employee who is no longer entitled to continuation of 
pay should file a claim for compensation on Form CA-7 or CA-8.
[52 FR 10517, Apr. 1, 1987]



Sec. 10.209  Employee's responsibilities in continuation of pay cases.

    (a) An employee who sustains a traumatic job-related injury, or 
someone acting on the employee's behalf, shall complete and submit the 
employee's portion of Form CA-1 to the official superior as soon as 
possible but no later than 30 days after the date of injury. An employee 
shall elect on Form CA-1 either to receive continuation of pay or use 
sick or annual leave while disabled for work as a result of the injury. 
(See Sec. 10.201 and Sec. 10.202.)
    (b) An employee has the responsibility of submitting, or arranging 
for the submission of, prima facie medical evidence of a traumatic 
disabling injury to the employing agency within 10 work days after 
claiming continuation of pay. Under the provisions of Sec. 10.204(a)(1) 
of this subpart, the lack of receipt of such evidence by the employing 
agency within that time may serve as sufficient reason for termination 
of continuation of pay, subject to reinstatement upon receipt of such 
evidence.
    (c) Where the agency has advised of the existence of specific 
alternative positions, the employee shall furnish the description of 
such alternative positions to the attending physician and inquire 
whether and when the employee will be able to perform such duties. The 
employee must furnish the employing agency with a copy of the 
physician's response.
    (d) Where the agency has advised of its willingness to accommodate 
where possible the employee's work limitations and restrictions, the 
employee shall so advise the attending physician and request the 
attending physician to specify the limitations and restrictions imposed 
by the injury. The employee has the responsibility to advise the 
employing agency immediately of the limitations and restrictions 
imposed.
    (e) Where an employee has been offered duties within the limitations 
and restrictions imposed by the physician, the employee is obligated to 
return to duty. Where an employee refuses such an offer of suitable 
work, entitlement to continuation of pay ceases as of the effective date 
of availability of such work.
    (f) Where the Office determines that, due to the failure of the 
employee to meet his or her obligations and responsibilities under this 
section, pay was continued beyond the date it would

[[Page 40]]

otherwise have terminated, the Office will advise the official superior 
and the employee of the period of disability which is approved, and the 
official superior may require the employee to resolve any overpayment in 
accordance with Sec. 10.201(e) of this subpart.
    (g) Where return to suitable work results in a loss of pay such as 
premium pay, Sunday pay, holiday pay, night or shift differential, etc., 
continuation of pay will be granted for the lost elements of pay (see 
Sec. 10.205(d) of this subpart).
[52 FR 10518, Apr. 1, 1987]



                   Subpart D--Payment of Compensation

                           Compensation Rates



Sec. 10.300  Maximum and minimum compensation.

    (a) Disability. Compensation for disability may not exceed 75 
percent of the monthly pay of the highest step of grade 15 of the 
General Schedule, except insofar as provided in paragraph (c) below. For 
total disability, it may not be less than 75 percent of the monthly pay 
of the first step of grade 2 of the General Schedule or actual pay, 
whichever is less.
    (b) Death. Compensation for death is computed on a minimum pay equal 
to the first step of grade 2 of the General Schedule. The total 
compensation may not exceed the employee's pay or 75 percent of the 
monthly pay of the highest step of grade 15 of the General Schedule, 
except that compensation is allowed to exceed the employee's monthly pay 
if such excess is created by authorized cost of living increases.
    (c) Exclusion from maximum compensation rate. The provisions in 
paragraph (a) above concerning the maximum rate of compensation do not 
apply to any employee whose disability is a result of an assault which 
occurs during an assassination or attempted assassination of a Federal 
official described under section 351(a) or 1751(a) of title 18, and was 
sustained in the performance of duty.
[40 FR 6877, Feb. 14, 1975, as amended at 54 FR 52024, Dec. 20, 1989]



Sec. 10.301  Temporary total disability rate.

    (a) Compensation based on loss of wages is payable, subject to the 
provisions of 5 U.S.C. 8117, after the expiration of continuation of pay 
as provided by subpart C of this part or from the beginning of pay loss 
in all other cases.
    (b) When an injured employee loses pay due to temporary total 
disability resulting from an injury, compensation is payable at the rate 
of 66\2/3\ percent of the pay rate established for compensation 
purposes. The compensation rate is increased to 75 percent when there 
are one or more dependents. Dependents include a wife or husband; an 
unmarried child under 18 years of age or if over 18, incapable of self-
support, or a student (until reaching 23 years of age or completing four 
years of school beyond the high school level); or a wholly dependent 
parent. Compensation begins when the employee starts to lose pay if the 
injury causes permanent disability or if there is pay loss for more than 
14 days, otherwise compensation begins on the fourth day after pay 
stops. Compensation may not be paid while an injured employee receives 
pay for leave or is otherwise in a continuation of pay status. The 
employee has the right to elect whether to receive pay for leave or to 
receive compensation.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10518, Apr. 1, 1987]



Sec. 10.302  Permanent total disability rate.

    When the injury causes permanent total disability, an injured 
employee is entitled to total disability compensation until death unless 
the employee is medically or vocationally rehabilitated to either full 
or partial earning capacity. The loss of use of both hands, both arms, 
both feet, or both legs, or the loss of sight of both eyes is prima 
facie evidence of permanent total disability. However, the presumption 
of permanent total disability as a result of such loss is rebuttable by 
evidence to the contrary, such as evidence of sustained work and 
earnings despite the loss. Compensation for permanent total disability 
is payable at the rate of 66\2/3\ percent of the pay rate established 
for

[[Page 41]]

compensation purposes, or at 75 percent when where is a dependent (see 
Sec. 10.301(b) of this section).
[52 FR 10518, Apr. 1, 1987]



Sec. 10.303  Partial disability rate.

    (a) An injured employee who is unable to return to the position held 
at the time of injury (or to earn equivalent wages) but who is not 
totally disabled for all gainful employment is entitled to compensation 
computed on loss of wage-earning capacity. Compensation for partial 
disability is payable at 66\2/3\ percent (or at 75 percent if the 
employee has a dependent) of the difference between the employee's pay 
rate for compensation purposes and the employee's wage-earning capacity. 
A narrative description of the formula used by the Office to compute the 
compensation payable is contained in paragraph (b) of this section. In 
determining the compensation payable for partial disability, an 
employee's wage-earning capacity is determined by the employee's actual 
earnings if those earnings fairly and reasonably represent the wage-
earning capacity. If the actual earnings do not fairly and reasonably 
represent the employee's wage-earning capacity or if the employee has no 
actual earnings, the employee's wage-earning capacity shall be 
determined by the Office by selection of a job after having given due 
regard to the nature of the employee's injury, the degree of physical 
impairment, the employee's usual employment, the employee's age, the 
employee's qualification for other employment, the availability of 
suitable employment, and other factors or circumstances which may affect 
the employee's wage-earning capacity in his or her disabled condition. 
The salary of such a job shall be considered the employee's wage-earning 
capacity. The Office will not secure employment for the claimant in the 
position selected for establishing an earning capacity.
    (b) For the purpose of describing the formula utilized by the Office 
for computing the compensation payable for partial disability, the 
following terms are defined: pay rate for compensation purposes is as 
defined in Sec. 10.5(a)(20) of this part; current pay rate means 
``current'' salary or pay rate for the job held at the time of injury; 
and earnings means the claimant's actual earnings, or the salary or pay 
rate of the job selected by the Office as representative of the 
employee's wage-earning capacity. An employee's wage-earning capacity in 
terms of percentage is obtained 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. Any convenient date may be chosen by 
the Office for making the comparison as long as the two wage rates are 
in effect on the date used for comparison. The employee's wage-earning 
capacity in terms of dollars is computed by multiplying the pay rate for 
compensation purposes by the percentage of wage-earning capacity and the 
resulting dollar amount is subtracted from the pay rate for compensation 
purposes to obtain the employee's loss of wage-earning capacity. 
Compensation for partial disability is payable at the rate of 66\2/3\ 
percent (or at 75 percent if the employee has a dependent) of this loss 
of wage-earning capacity. The compensation payable shall be increased by 
applicable cost-of-living adjustments.
[52 FR 10518, Apr. 1, 1987]



Sec. 10.304  Schedule compensation rate.

    (a) Compensation is provided for specified periods of time for the 
permanent loss or loss of use (referred to as impairment) of each of 
certain members, organs and functions of the body. Compensation for 
proportionate periods of time is payable for partial loss or loss of use 
of each member, organ or function. The compensation for scheduled awards 
will equal 66\2/3\ percent of the employee's pay or 75 percent of the 
pay when there is a dependent. Compensation for loss of wage-earning 
capacity may be paid after the schedule expires. Proper and equitable 
compensation not to exceed $3,500 may be paid for serious disfigurement 
of the face, head or neck if of a character likely to handicap a person 
in securing or maintaining employment.
    (b) Authority is provided under 5 U.S.C. 8107(c)(22) to add other 
internal

[[Page 42]]

and external organs to the compensation schedule. Pursuant to this 
authority, the following is added:

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

    (c) Compensation under this schedule is:
    (1) Payable regardless of whether the cause of the impairment 
originates in part of the body other than the impaired member or organ;
    (2) Payable regardless of whether the disability also involves 
another impairment of the body; and
    (3) Payable in addition to but, with the exception of compensation 
for serious disfigurement of the face, head or neck, not concurrently 
with compensation for temporary total or temporary partial disability.
    (d) The period of compensation payable under the schedule in 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 or the same member of function or for 
disfigurement; and
    (2) The Office finds that compensation payable for the later 
impairment in whole or in part would duplicate the compensation payable 
for the pre-existing impairment.
    (e) Where compensation is reduced as provided by paragraph (d) of 
this section, compensation for continuing wage loss starts on expiration 
of the schedule period as reduced.
[52 FR 10519, Apr. 1, 1987, as amended at 57 FR 15227, Apr. 27, 1992]



Sec. 10.305  Attendant allowance.

    An employee who has been awarded compensation may receive an 
additional sum of not more than $1,500 a month, as the Office considers 
necessary to pay for the service of an attendant, when the Office finds 
that the service of an attendant is necessary constantly because the 
employee is totally blind or has lost the use of both hands or both 
feet, or is paralyzed and unable to walk, or because of any impairment 
resulting from the injury making the employee so helpless as to require 
constant attendance.
[56 FR 47675, Sept. 20, 1991]



Sec. 10.306  Eligibility for death benefits and death benefit rates.

    (a) If there is no child entitled to compensation, the employee's 
surviving spouse shall receive compensation equal to 50 percent of the 
employee's pay until death or remarriage before reaching 55 years of 
age. Upon remarriage, the surviving spouse will be paid a lump sum equal 
to 24 times the monthly compensation payment (excluding compensation 
payable on account of another individual) to which the surviving spouse 
was entitled immediately before the remarriage. If remarriage occurs at 
age 55 or older, the lump sum payment will not be paid and compensation 
shall continue until death.
    (b) If there is a child entitled to compensation, the compensation 
for the surviving spouse equal 45 percent of the employee's 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 equals 40 percent of the employee's 
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) Parents, brothers, sisters, grandparents and grandchildren 
dependent upon the deceased employee at the time of death may be 
entitled to compensation as provided by 5 U.S.C. 8133.
    (e) A child, brother, sister or grandchild may be entitled to 
receive death benefits until death, marriage, or the attainment of age 
18. Regarding entitlement after reaching age 18, refer to Sec. 10.127 of 
this part.
[52 FR 10519, Apr. 1, 1987, as amended at 56 FR 47675, Sept. 20, 1991]

[[Page 43]]



Sec. 10.307  Burial and transportation benefits.

    In the case of an employment related death of an employee a sum, not 
to exceed $800, may be paid for funeral and burial expenses. When an 
employee's home is within the United States, an additional sum may be 
paid for transporting the remains to the home if the employee dies away 
from home, official duty station, or outside the United States. An 
additional sum of $200 is paid to the personal representative of the 
decedent for reimbursement of the costs of termination of the decedent's 
status as an employee of the United States.
[40 FR 6877, Feb. 14, 1975. Redesignated at 52 FR 10519, Apr. 1, 1987]

                         Adjustments to Benefits



Sec. 10.310  Buy back of annual or sick leave.

    (a) An employee who sustains a job-related disability may use sick 
or annual leave or both to avoid interruption of income. If the employee 
uses leave during a period of disability caused by an occupational 
disease or illness, and a claim for compensation is approved, the 
employee may, with the approval of the employing agency, ``buy back'' 
the used leave and have it recredited to the employee's account. If the 
employee uses leave during a period of disability caused by a traumatic 
injury and a claim is approved by the Office, the employee may ``buy 
back'' leave taken after the 45-day continuation of pay period. The 
employee may not repurchase leave taken during the 45-day continuation 
of pay period unless the employee was not entitled to receive 
continuation of pay. The computation of the amount due the agency to 
effect the leave repurchase is the responsibility of the employing 
agency and is to be done in accordance with the accounting principles 
and practices of that agency.
    (b) If the employing agency does not approve a repurchase of leave, 
then no compensation may be paid for the period leave was used. Where 
the agency agrees to the leave repurchase, the employee may elect to 
have the compensation payable for the period paid directly to the 
employing agency to be applied against the amount due the agency to 
effect the repurchase.
[52 FR 10519, Apr. 1, 1987]



Sec. 10.311  Lump-sum awards.

    (a)(1) In exercise of the discretion afforded by section 8135(a), 
the Director has determined that lump-sum payments will no longer be 
made to individuals whose injury in the performance of duty as a federal 
employee has resulted in a loss of wage-earning capacity. This 
determination is based on, among other factors:
    (i) The fact that FECA is intended as a wage-loss replacement 
program;
    (ii) The general advisability that such benefits be provided on a 
periodic basis; and
    (iii) The high cost associated with the long-term borrowing that is 
necessary to pay out large lump sums.
    (2) Accordingly, where applications for lump-sum payments for wage-
loss benefits under sections 8105 and 8106 are received, the Director 
will not exercise further discretion in the matter.
    (b) Notwithstanding the determination set forth in paragraph (a) of 
this section, a lump sum payment may be made to a claimant whose injury 
entitles him or her to a schedule award under section 8107. Even under 
these circumstances, a claimant possesses no absolute right to a lump-
sum payment of benefits payable under section 8107, and such a payment 
may be granted only where the Director determines, acting within his or 
her discretion, that such a payment is in the claimant's best interest. 
Lump-sum payments of schedule awards generally will not be considered in 
the claimant's best interest where the compensation payments are relied 
upon by the claimant as a substitute for lost wages.
    (c) On remarriage before age 55, a surviving spouse entitled to 
compensation under 5 U.S.C. 8133, shall be paid a lump sum equal to 24 
times the monthly compensation payment (excluding compensation payable 
on account of another individual) to which the surviving spouse was 
entitled immediately before the remarriage.
[57 FR 35755, Aug. 11, 1992]

[[Page 44]]



Sec. 10.312  Assignment of claim, claims of creditors.

    An assignment of a claim for compensation is void. Compensation and 
claims for compensation are exempt from claims of creditors.



Sec. 10.313  Dual benefits.

    (a) Except as otherwise provided by law, a person may not 
concurrently receive compensation pursuant to the Act and a retirement 
or survivor annuity under the U.S. Civil Service Retirement Act, the 
Federal Employees' Retirement System Act, or a retirement or survivor 
annuity which stands in lieu of either of these Acts, such as Foreign 
Service or Central Intelligence Agency disability and retirement 
programs. Such beneficiary shall elect the benefit which he or she 
wishes to receive, and such election, once made, is revocable.
    (b) Military retirement/retainer pay and compensation. 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) The Office may require an employee to submit an affidavit or 
statement as to the receipt of any federally funded or federally 
assisted benefits, as identified and in the manner and at the times 
specified by the Office, in order to determine the employee's 
entitlement to compensation or to determine whether the employee is 
receiving benefits under other programs administered by the Office. If 
an employee when required, fails within 30 days of the date of the 
request to submit such affidavit or statement, the employee's right to 
compensation otherwise payable shall be suspended until such time as the 
requested affidavit or report is received, at which time compensation 
will be reinstated retroactive to the date of suspension provided the 
employee is entitled to such compensation.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10520, Apr. 1, 1987]



Sec. 10.314  Cost-of-living adjustments.

    (a) Cost-of-living adjustments shall be made from time to time in 
accordance with 5 U.S.C. 8146a.
    (b) Compensation payable on account of disability or death which 
occurred more than one year before the effective date of the cost-of-
living adjustment shall be increased as determined in accordance with 5 
U.S.C. 8146a. In disability cases, a beneficiary is eligible for cost-
of-living adjustments where injury-related disability began more than 
one year prior to the effective date of the adjustment without regard to 
the fact that for any part of that period of disability the beneficiary 
may have elected to receive continuation of pay as provided by 5 U.S.C. 
8118, or to use sick or annual leave. Where an injury does not result in 
disability but compensation is payable pursuant to 5 U.S.C. 8107 for 
permanent impairment of a covered member or function of the body, 
entitlement to cost-of-living adjustments begins with the first such 
adjustment occurring more than one year after the effective date of the 
award for such impairment. In the case of a recurrence of disability 
where the pay rate for compensation purposes is the pay rate at the time 
disability recurs, entitlement to cost-of-living adjustments begins with 
the first such adjustment occurring more than one year after the 
disability recurs. In death cases, entitlement to cost-of-living 
adjustments 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.
[52 FR 10520, Apr. 1, 1987]

                              Overpayments

    Source:  Sections 10.320 through 10.324 appear at 52 FR 10520--
10522, Apr. 1, 1987, unless otherwise noted.

[[Page 45]]



Sec. 10.320  Definitions.

    (a) Fault as used in the term ``without fault'' in 5 U.S.C. 8129(b) 
and Sec. 10.321(c) of this subpart applies only to the individual who 
has received a payment in his or her own name or on behalf of a 
beneficiary. Although the Office may have been at fault in making the 
overpayment, that fact does not relieve the overpaid individual or any 
other individual from whom the Office seeks to recover the overpayment 
from liability for repayment if such individual is not without fault.
    (b) With fault. In determining whether an individual is with fault, 
the Office will consider all pertinent circumstances, including age, 
intelligence, education, and physical and mental condition. An 
individual is with fault in the creation of an overpayment who:
    (1) Made an incorrect statement as to a material fact which the 
individual knew or should have known to be incorrect; or
    (2) Failed to furnish information which the individual knew or 
should have known to be material; or
    (3) With respect to the overpaid individual only, accepted a payment 
which the individual knew or should have been expected to know was 
incorrect.
    (c) Without fault. Whether an individual is ``without fault'' 
depends on all the circumstances surrounding the overpayment in the 
particular case. The Office will consider the individual's understanding 
of any reporting requirements, the agreement to report events affecting 
payments, knowledge of the occurrence of events that should have been 
reported, efforts to comply with the reporting requirements, 
opportunities to comply with the reporting requirements, understanding 
of the obligation to return payments which were not due, and ability to 
comply with any reporting requirements (e.g., age, comprehension, 
memory, physical and mental condition). Although ``without fault'' is 
not limited to the overpayment circumstances described below, an 
individual is ``without fault,'' except as provided in paragraph (b) 
above, if it is established after consideration of all the factors 
stated above that failure to report an event that would affect 
compensation benefits or acceptance of an incorrect payment was due to 
one of the following:
    (1) The individual relied on misinformation given to him or her (or 
his or her representative) by an official source within the Office (or 
other governmental agency which the individual had reason to believe was 
connected with the administration of benefits) as to the interpretation 
of a pertinent provision of the Act or the regulations pertaining 
thereto; or
    (2) The Office erred in calculation of cost-of-living increases, 
schedule award length and/or percentage, and loss of wage earning 
capacity, unless the claimant had knowledge of the calculation errors.
    (d) Degree of care. An individual will be ``with fault'' if the 
Office has evidence which shows either a lack of good faith or failure 
to exercise a high degree of care in reporting changes in circumstances 
which may affect entitlement to or the amount of benefits. As indicated 
in paragraphs (b) and (c) of this section, the degree of care expected 
of an individual may vary with the complexity of the circumstances 
giving rise to the overpayment and the capacity of the particular payee 
to realize that he or she is being overpaid. Accordingly, variances in 
the personal circumstances and situations of individual payees are to be 
considered in determining whether the individual exercised the degree of 
care necessary to warrant a finding of ``without fault.''



Sec. 10.321  Recovery of overpayments.

    (a) Whenever an overpayment has been made to an individual who is 
entitled to further payments, proper adjustment shall be made by 
decreasing subsequent payments of compensation, having due regard to 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 resulting hardship upon such individual. 
In the event such individual dies before such adjustment has been 
completed, a similar adjustment shall be made by decreasing subsequent 
payments, if any, payable under this Act with respect to such 
individual's death.
    (b) Where there are no further payments due and an overpayment has

[[Page 46]]

been made to an individual by reason of an error of fact or law such 
individual, as soon as the mistake is discovered or his attention is 
called to same, shall refund to the Office any amount so paid or, upon 
failure to make such refund, the Office may proceed to recover the same.
    (c) There shall be no adjustment or recovery under paragraph (a) or 
(b) of this section by the United States in any case when incorrect 
payment has been made to an individual who is without fault and when 
adjustment or recovery would defeat the purpose of the Act or would be 
against equity and good conscience.
    (d) Before adjusting future payments or otherwise seeking to recover 
an overpayment, the Office shall provide the individual with written 
notice of:
    (1) The fact and amount of overpayment;
    (2) Its preliminary finding of whether the individual is at fault in 
the creation of the overpayment;
    (3) The individual's right to inspect and copy Government records 
relating to the overpayment;
    (4) The individual's right to request a pre-recoupment hearing 
within 30 days of the date of written notice of overpayment for the 
purpose of challenging the fact or amount of the overpayment, the 
preliminary finding of fault, or for the purpose of requesting waiver;
    (5) The individual's right to submit additional written evidence 
within 30 days of the date of written notice of overpayment for the 
purpose of challenging the fact or amount of the overpayment, the 
preliminary fault finding, or for the purpose of requesting waiver.
    (e) Additional evidence must be submitted, or a pre-recoupment 
hearing requested, within 30 days of the Office's written notice to the 
individual. Failure to exercise the right to a pre-recoupment hearing 
within 30 days of the date of notice of overpayment shall constitute a 
waiver of that right.
    (f) Pre-recoupment hearings shall be conducted in all matters in 
exactly the same manner as provided in Sec. 10.131 through Sec. 10.137.
    (g) When an overpayment exists because a claim was accepted in 
error, or because benefits were otherwise denied or terminated, the 
Office representative shall determine any and all issues raised at the 
pre-recoupment hearing, including those regarding the correctness of the 
decision to deny or terminate compensation. If an employee requests a 
pre-recoupment hearing as provided by this section with respect to an 
overpayment, and also requests a hearing as provided by 5 U.S.C. 8124(b) 
with respect to the decision denying or terminating benefits and 
resulting in the overpayment, both requests for a hearing shall be 
combined and one hearing held on any and all issues.
    (h) If additional written evidence is not submitted, or a hearing 
requested, within the 30-day period, the Office will issue a final 
decision based on the available evidence and will initiate appropriate 
collection action. The final decision concerning an overpayment, whether 
rendered subsequent to a pre-recoupment hearing or in the absence of the 
submission of additional written evidence, is not subject to the hearing 
provision of 5 U.S.C. 8124(b) nor the reconsideration provision of 5 
U.S.C. 8128(a). An individual aggrieved or adversely affected by a 
decision concerning an overpayment may request review by the Employees' 
Compensation Appeals Board.
    (i) A copy of the final decision concerning an overpayment will be 
sent to the individual from whom recovery is sought, the individual's 
representative, and the employing agency.
[40 FR 6877, Feb. 14, 1975, as amended at 53 FR 11594, Apr. 7, 1988]



Sec. 10.322  Waiver of recovery--defeat the purpose of the subchapter.

    (a) General. Recovery of an overpayment will defeat the purpose of 
the Act if recovery would cause hardship by depriving a presently or 
formerly entitled beneficiary of income and resources needed for 
ordinary and necessary living expenses under the criteria set out in 
this section. Recovery will defeat the purpose of this subchapter to the 
extent that:
    (1) The individual from whom recovery is sought needs substantially 
all of his or her current income (including compensation benefits) to 
meet current ordinary and necessary living expenses; and

[[Page 47]]

    (2) The individual's assets do not exceed the resource base of $3000 
for an individual or $5000 for an individual with a spouse or one 
dependent plus $600 for each additional dependent. This base includes 
all of the claimant's assets not exempted from recoupment in paragraph 
(d) of this section. The first $3000 or more depending on the number of 
the claimant's dependents is also exempted from recoupment.
    (b) Income. The individual's total income includes any funds which 
may be reasonably considered available for his or her use, regardless of 
the source. Income to a spouse will not be considered available to the 
individual unless the spouse was living in the household both at the 
time the overpayment was incurred and at the time waiver is considered. 
Types of income include but are not limited to:
    (1) Government benefits such as Black Lung, Social Security, and 
Unemployment Compensation benefits;
    (2) Wages and self-employment income;
    (3) Regular payments such as rent or pensions; and
    (4) Investment income.
    (c) Ordinary and necessary living expenses. An individual's ordinary 
and necessary living expenses include:
    (1) Fixed living expenses, such as food and clothing, rent, mortgage 
payments, utilities, maintenance, transportation, insurance (e.g., life, 
accident, and health insurance);
    (2) Medical, hospitalization, and other similar expenses;
    (3) Expenses for the support of others for whom the individual is 
responsible.
    (4) Church and charitable contributions made on regular basis. (This 
shall not include large one-time gifts made after receipt of the 
preliminary notice of overpayment); and
    (5) Miscellaneous expenses (e.g., newspaper, haircuts) not to exceed 
$25.00 per month.
    (d) Assets. An individual's assets include:
    (1) Liquid assets--cash on hand, the value of stocks, bonds, savings 
accounts, mutual funds, and the like; and
    (2) Non-liquid assets--the fair market value of property such as a 
camper, second home, extra automobile, jewelry, etc.

Assets for these purposes shall not include the value of household 
furnishings, wearing apparel, family automobile, burial plot or prepaid 
burial contract, a home which the person maintains as the principal 
family domicile, or income producing property if the income from such 
property has been included in comparing income and expenses.



Sec. 10.323  Waiver of recovery--against equity and good conscience.

    (a) Recovery of an overpayment is considered to be ``against equity 
and good conscience'' when an individual presently or formerly entitled 
to benefits would experience severe financial hardship in attempting to 
repay the debt. The criteria to be applied in determining severe 
financial hardship are the same as in Sec. 10.322.
    (b) Recovery of an overpayment is considered to be inequitable and 
against good conscience when an individual, in reliance on such payments 
or on notice that such payments would be made, relinquished a valuable 
right or changed his position for the worse. In making such a decision, 
the individual's present ability to repay the overpayment is not 
considered. 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 on reliance on 
the payments or on the notice of payment. To establish that the 
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. An example of 
such ``detrimental reliance'' would be a decision to enroll in college 
based on the award of benefits. The funds have been spent and cannot be 
recovered nor can the purchase be liquidated.



Sec. 10.324  Responsibility for providing financial information.

    In requesting waiver of an overpayment, either in whole or in part, 
the overpaid individual has the responsibility for providing the 
financial information described in Sec. 10.322, as well as

[[Page 48]]

such additional information as the Office may require to make a decision 
with respect to waiver. Failure to furnish the information within 30 
days of request shall result in denial of waiver, and no further 
requests for waiver shall be entertained until such time as the 
requested information is furnished.



                 Subpart E--Furnishing Medical Treatment



Sec. 10.400  Physician and medical services, etc. defined.

    (a) The term ``physician'' as used in subparts E and F of this part 
includes physicians (M.D. and D.O.), surgeons, podiatrists, dentists, 
clinical psychologists, optometrists, and chiropractors, within the 
scope of their practice as defined by State Law. The term ``physician'' 
includes chiropractors only to the extent that their reimbursable 
services are limited to treatment consisting of manual manipulation of 
the spine to correct a subluxation as demonstrated by X-ray to exist. A 
physician whose license to practice medicine has been suspended or 
revoked by a State licensing or regulatory authority is not a physician 
within the meaning of this section during the period of such suspension 
or revocation.
    (b) The term ``duly qualified physician'' as used in subparts E and 
F of this part includes any physician, as defined by paragraph (a) of 
this section, who has not been excluded under the provisions of subpart 
F of this part. Except as otherwise provided by regulation, a duly 
qualified physician shall be deemed to be designated or approved by the 
Office.
    (c) The term ``duly qualified hospital'' as used in subparts E and F 
of this part includes any hospital licensed as such under State law 
which has not been excluded under the provisions of subpart F of this 
part. Except as otherwise provided by regulation, a duly qualified 
hospital shall be deemed to be designated or approved by the Office.
    (d) The term ``duly qualified provider of medical support services 
or supplies'' as used in subparts E and F of this part includes any 
person, other than a physician or a hospital, who provides services, 
drugs, supplies, and appliances for which the Office makes payment who 
possesses any applicable licenses required under State law and who has 
not been excluded under the provisions of subpart F of this part.
    (e) The term ``medical services'' as used in subparts E and F of 
this part includes services and supplies provided by or under the 
supervision of physicians (M.D. and D.O.), surgeons, podiatrists, 
dentists, clinical psychologists, optometrists, and chiropractors, 
within the scope of their practices as defined by State law. 
Reimbursable chiropractic services are limited to treatment consisting 
of manual manipulation of the spine to correct a subluxation as 
demonstrated by x-rays to exist. Also included for payment or 
reimbursement are physical examinations (and related laboratory tests) 
and x-rays performed by or required by a chiropractor to diagnose a 
subluxation of the spinal column. The term ``subluxation'' means an 
incomplete dislocation, off-centering, misalignment, fixation or 
abnormal spacing of the vertebrae anatomically which must be 
demonstrable on any x-ray film to individuals trained in the reading of 
x-rays. A chiropractor may interpret his or her x-rays to the same 
extent as any other physician defined in this section.
    (f) The term ``hospital services'' as used in subparts E and F of 
this part includes services and supplies provided by hospitals within 
the scope of their practice as defined by State law.
    (g) The term ``medical support services and supplies'' as used in 
subparts E and F of this part includes services, drugs, supplies, and 
appliances provided by a person other than a physican or hospital.
    (h) The term ``job-related injury'' as used in subparts E and F of 
this part includes injuries sustained while in the performance of duty 
and diseases proximately caused by the conditions of employment.
    (i) The term ``designated agency official'' means the individual 
delegated responsibility by an employing agency for authorizing medical 
treatment for the injured employee.
[49 FR 18978, May 3, 1984, as amended at 52 FR 10520, Apr. 1, 1987]

[[Page 49]]



Sec. 10.401  Medical treatment, hospital services, transportation, etc.

    (a) A claimant shall be entitled to receive all medical services, 
appliances or supplies which are prescribed or recommended by a duly 
qualified physician and which the Office considers necessary for the 
treatment of a job-related injury, whether or not the claimant is 
disabled. Such services, appliances and supplies may be furnished by, or 
on the order or recommendation of, either United States medical officers 
or hospitals, or, at the claimant's option as provided in paragraph (b) 
of this section, any other duly qualified physician or duly qualified 
hospital. Medical support services and supplies not furnished by a duly 
qualified physician or a duly qualified hospital shall be furnished by a 
duly qualified provider of medical support services or supplies. A 
claimant shall also be entitled to reimbursement of reasonable and 
necessary expenses, including transportation incident to obtaining 
authorized medical services, appliances or supplies.
    (b) A claimant has an initial choice of physicians. The designated 
agency official shall give the claimant an opportunity to select a duly 
qualified physician, after advising the claimant of those physicians 
excluded under the provisions of this part. An employee who wishes to 
change physicians must submit a written request to the Office fully 
explaining the reasons for the request. The Office may approve the 
request in its discretion if sufficient justification is shown for the 
request. Any duly qualified physician shall be authorized to provide 
necessary treatment of a job-related injury in an emergency. See also 
Sec. 10.456(c).
    (c) The medical facilities of the U.S. Public Health Service, Army, 
Navy, Air Force, and Veterans Administration may be used when previous 
arrangements have been made on a case-by-case basis with the director of 
the facility.
    (d) Federal health service units or other occupational health 
service facilities established under the provisions of the Act of August 
8, 1946, as amended (U.S.C. 7901), are not U.S. medical hospitals as 
used in this part, nor are the staff of these facilities U.S. medical 
officers as used in this part.

Under criteria established by the Bureau of the Budget (now the Office 
of Management and Budget) in Circular No. A-72 of June 18, 1965, these 
health service units or occupational health service facilities shall 
only provide emergency diagnosis and treatment of injury or illness such 
as are necessary during working hours and are within the competence of 
the professional staff of the health service unit or facility. Any 
medical treatments by these units or facilities other than emergency 
treatment must be specifically authorized by the Office and given under 
the supervision of a duly qualified physician.
    (e) Nothing in the Act or in these regulations affects any authority 
which the employing agency may have to require the employee to undergo a 
medical examination to determine whether the employee meets the 
mandatory medical requirements of the position held, or is able to 
perform the duties of the position held. Any agency-required examination 
or related activity shall not interfere with issuance of Form CA-16, 
with the employee's initial free choice of physician or with any 
authorized examination or treatment.
    (f) In emergency cases or those involving unusual considerations 
affecting the quality of medical care, the Office may authorize 
treatment or approve payment of medical expenses in a matter other than 
that provided in this subpart.
[49 FR 18978, May 3, 1984]



Sec. 10.402  Official authorization for treatment.

    (a) When an employee sustains a job-related injury which may require 
medical treatment, the designated agency official shall promptly 
authorize such treatment by giving the employee a properly executed CA-
16 within 4 hours. Form CA-16 shall be used primarily for traumatic 
injuries. It may also be used to authorize examination and treatment for 
disease or illness, but only if the designated agency official has 
obtained prior permission from the Office.

[[Page 50]]

    (b) To be valid, a Form CA-16 must give the full name and address of 
the duly qualified physician or duly qualified medical facility 
authorized to provide service, and must be signed and dated by the 
authorizing official, and must show his or her title. Except as provided 
in Sec. 10.404. Form CA-16 may not be issued for past medical care. The 
period for which treatment is authorized by a correctly issued Form CA-
16 is limited to 60 days from the date of issuance, unless terminated 
earlier by the Office. Further, in view of the provisions of 
Sec. 10.401(b), the employing agency may not use Form CA-16 to authorize 
a change of physicians.
    (c) In determining the use of medical facilities, consideration must 
be given to their availability, the employee's condition, and the method 
and means of transportation. Generally, 25 miles from the place of 
injury, the employing agency, or the employee's home, is a reasonable 
distance to travel, but other pertinent factors must also be taken into 
consideration.
[49 FR 18979, May 3, 1984]



Sec. 10.403  Medical treatment in doubtful cases.

    Cases of doubtful nature, so far as compensability is concerned, 
shall be referred by the designated agency official to a United States 
medical official or hospital, or at the employee's option, to a duly 
qualified private physician or a duly qualified hospital designated or 
approved by the Office, or as otherwise provided in this part, using a 
Form CA-16 for medical services as indicated in 6B of the form. This 
authorizes the necessary diagnostic studies and emergency treatment 
pending receipt of advice from the Office. A statement of all pertinent 
facts relating to the particular case shall also be forwarded 
immediately to the Office for consideration. If the medical examination 
or other information received subsequent to the issuance of 
authorization for treatment discloses that the condition for which 
treatment was rendered is not due to an injury, the person issuing the 
authorization shall immediately notify the employee and the physician or 
hospital that no further treatment shall be rendered at the expense of 
the Office. In cases of an emergency or cases involving unusual 
circumstances, the Office may, in the exercise of its discretion, 
authorize treatment otherwise than as provided for in this part, or it 
may approve payment for medical expenses incurred otherwise than as 
authorized in this section. No authority for examination or for medical 
or other treatment shall be given by the designated agency official in 
any case already disallowed by the Office.
[49 FR 18979, May 3, 1984]



Sec. 10.404  Emergency treatment.

    In cases of traumatic injury where emergency treatment is necessary, 
any duly qualified physician may render initial treatment. If oral 
authorization for such treatment is given by the designated agency 
official, a Form CA-16 shall be issued within 48 hours thereafter. If 
further treatment is necessary, authorization therefor shall be 
requested as soon as practicable in accordance with Sec. 10.402 of this 
part. It is the duty of the designated agency official to authorize 
initial medical treatment for acute injuries, exclusive of disease or 
illness, and to transfer the employee at the employee's option to the 
care of a local U.S. medical officer or hospital or to a duly qualified 
private physician or a duly qualified hospital designated or approved by 
the Office for any subsequent treatment needed. If unable to comply 
promptly with this requirement, the designated agency official shall 
communicate with the Office for instructions.
[49 FR 18979, May 3, 1984]



Sec. 10.405  Medical treatment if symptoms or disability recur.

    If, after having been discharged from medical treatment, an injured 
employee again has symptoms or disability under circumstances from which 
it may reasonably be inferred that such symptoms or disability are the 
result of an injury previously recognized as compensable by the Office, 
and the place of employment is the same as at the time of injury, Form 
CA-16 may be issued at the discretion of the designated agency official. 
Form CA-16 shall not be used by the designated agency official if more 
than six months

[[Page 51]]

have elapsed since the empoyee last returned to work. In any case in 
which there may be doubt that the symptoms or disability are the result 
of the injury, or in which it has been more than six months since the 
last return to work, the designated agency official shall communicate 
with the Office and request instructions, stating all the pertinent 
facts. In all other cases, the employee shall communicate with the 
Office and request such treatment.
[49 FR 18979, May 3, 1984]



Sec. 10.406  Authority for dental treatment.

    All necessary dental treatment, including repairs to natural teeth, 
false teeth, and other prosthetic dental devices, needed to repair 
damage or loss caused by an employment related injury shall be obtained 
at the employee's option from a U.S. Medical Officer or hospital, or 
from a duly qualified private dentist, a duly qualified physician, or a 
duly qualified hospital, upon authorization obtained in advance from the 
Office.
[49 FR 18980, May 3, 1984]



Sec. 10.407  Medical examinations.

    (a) An injured employee shall be required to submit to examination 
by a U.S. Medical Officer or by a qualified private physician approved 
by the Office as frequently and at such times and places as in the 
opinion of the Office may be reasonably necessary. The injured employee 
may have a duly qualified physician, paid by him or her, present at the 
time of such examination. For any examination required by the Office, an 
injured employee shall be paid all expenses incident to such examination 
which, in the opinion of the Office, are necessary and reasonable, 
including transportation and actual loss of wages incurred in order to 
submit to the examination authorized by the Office.
    (b) If the employee refuses to submit himself or herself for or in 
any way obstructs any examination required by the Office pursuant to 
paragraph (a) of this section, the employee's right to compensation 
under the Act shall be suspended until such refusal or obstruction 
ceases. Compensation otherwise paid or payable under the Act and this 
part for the period of the refusal or obstruction is forfeited and, 
where already paid, is subject to recovery pursuant to 5 U.S.C. 8129. 
When notifying an employee of an examination required under paragraph 
(a) of this section, the Office shall inform the employee of the penalty 
for refusing or obstructing the examination.
[49 FR 18980, May 3, 1984]



Sec. 10.408  Medical referee examination.

    If there should be a disagreement between the physician making the 
examination on the part of the United States and the injured employee's 
physician, the Office shall appoint a third physician, qualified in the 
appropriate speciality, who shall make an examination. The physician 
appointed shall be one not previously connected with the case.



Sec. 10.409  Furnishing of orthopedic and prosthetic appliances, and dental work.

    When a job-related injury results in the need for an orthopedic or 
prosthetic appliance, such as an artificial limb, eye, or denture, as 
recommended by the duly qualified attending physician, written 
application for authority to purchase such appliance may be made to the 
Office. The application must include a statement from the attending 
physician regarding the need for the appliance, a brief description 
thereof, and the approximate cost.
[49 FR 18980, May 3, 1984]



Sec. 10.410  Recording and submission of medical reports.

    (a) Medical officers and private physicians and hospitals shall keep 
adequate records of all cases treated by them under the Act so as to be 
able to supply the Office with a history of the employee's accident, the 
exact description, nature, location, and extent of injury, the X-ray 
findings or other studies, if X-ray examination or other studies have 
been made, the nature of the treatment rendered, and the degree of 
impairment arising from the injury.
    (b) Form CA-16 provides for the furnishing of the initial medical 
report. Form CA-20 may also be used for the

[[Page 52]]

initial report and for subsequent report. The medical report Form CA-20a 
attached to Form CA-8 is to be utilized in instances where continued 
compensation is claimed on such form. These reports shall be forwarded 
promptly to the Office. In cases of disabling traumatic injuries Form 
CA-17 shall be used to obtain interim reports concerning the employee's 
duty status. These reports are necessary to support continuation of pay 
up to 45 days.
    (c) Detailed supplementary reports in narrative form shall be made 
by the physician at approximately monthly intervals in all cases of 
serious injury or disease, especially injuries of the head and back, and 
including all cases requiring hospital treatment or prolonged care. The 
supplementary report shall show the date the employee was first examined 
or treated, the patient's complaint, the condition found on examination, 
the diagnosis and medical opinion as to any relationship between the 
impairment and the injury or employment factors alleged, report as to 
any other impairments found not due to injury, the treatment given or 
recommended for the injury alleged, the extent of impairment affecting 
the employment as a result of the injury, the actual degree of loss of 
active or passive motion of an injured member, the amount of atrophy or 
deformity in a member, the decrease, if any, in strength, the 
disturbance of sensation, the prognosis for recovery, and all other 
material findings. If the services of a specialist are required in the 
examination or treatment of the employee, a report of his findings upon 
examination, his diagnosis, his opinion as to the relationship between 
the impairment and the injury and/or conditions of employment, the 
medical rationale for his opinion, the treatment recommended by him, a 
statement of the extent of impairment as a result of the injury or 
employment and the prognosis shall be forwarded to the Office for 
consideration in conjunction with other reports. The requirement of this 
section or of any section in this part with respect to the form of 
medical, dental, hospital or other reports may be waived by the Office.
[40 FR 6877, Feb. 14, 1975, as amended at 49 FR 18980, May 3, 1984]



Sec. 10.411  Submission of bills for medical services, appliances and supplies; limitation on payment for services.

    (a)(1) All charges for medical and surgical treatment, appliances or 
supplies furnished to injured employees, except for treatment and 
supplies provided by hospitals, pharmacies and nursing homes, shall be 
supported by medical evidence as provided in Sec. 10.410, itemized by 
the physician or provider on the American Medical Association standard 
``Health Insurance Claim Form,'' OWCP 1500a ``Instructions for 
Completing Health Insurance Claim Form,'' and shall be forwarded 
promptly to the Office for consideration. The provider of such service 
shall identify each service performed, using the Health Care Financing 
Administration Common Procedure Coding System (HCPCS as periodically 
revised), with brief narrative description or, where no code is 
applicable, a detailed description of services performed. 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). 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.
    (2) Charges for medical and surgical treatment provided by hospitals 
shall be supported by medical evidence as provided in Sec. 10.410. Such 
charges shall be submitted by the provider on the Uniform Bill (UB-82). 
The provider shall identify each outpatient radiology service (including 
diagnostic and therapeutic radiology, nuclear medicine and CAT scan 
procedures, magnetic resonance imaging, and ultrasound and other imaging 
services), outpatient pathology service (including automated, 
multichannel tests, panels, urinalysis, chemistry and toxicology, 
hematology, microbiology, immunology and anatomic pathology), 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-82. 
Other outpatient hospital services for which

[[Page 53]]

HCPCS/CPT codes exist shall also be coded individually using the 
aforementioned coding scheme. Services for which there are no HCPCS/CPT 
codes available can be presented using the Revenue Center Codes (RCCs) 
described in the ``National Uniform Billing. Data Elements 
specifications, current edition.'' The provider shall also state each 
diagnosed condition and furnish the corresponding diagnostic code using 
the ``International Classification of Diseases, 9th Edition, Clinical 
Modification''(ICD-9-CM). If the outpatient hospital services include 
surgical and/or invasive procedures, the provider shall state each 
procedure and furnish the corresponding code using the ``International 
Classification of Diseases--Procedures, 9th Edition, Clinical 
Modification.''
    (3) Charges for appliances, supplies or services provided by 
pharmacies and nursing homes shall be itemized on the provider's 
billhead stationery or a standard form and forwarded promptly to the 
Office for consideration. Bills for prescription drugs must include the 
generic or trade name of the drug provided, the prescription number, and 
the date the prescription was filled.
    (b) By submitting a bill and/or accepting payment, the physician or 
other medical provider signifies that the service for which 
reimbursement is sought was performed as described and was necessary. In 
addition, the physician or other provider thereby agrees to comply with 
all rules and regulations set forth in this subchapter 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.
    (c) Bills submitted by providers which are not itemized on the 
American Medical Association ``Health Insurance Claim Form'' (for 
physicians) or the Uniform Bill (UB-82) (for hospitals), or are not 
signed by the provider and the claimant, or on which procedure are not 
identified by the provider using HCPCS/CPT codes or RCCs, or on which 
diagnoses and/or surgical procedures are not identified using ICD-9-CM 
codes, may be returned to the provider for correction and resubmission.
    (d)(1) Payment for medical and other health services furnished by 
physicians, hospitals and other persons for work-connected injuries 
shall, except as provided below, be no greater than a maximum allowable 
charge for such service as determined by the Director. The schedule of 
maximum allowable charges is not applicable to charges for appliances, 
supplies, services or treatment provided and billed for by hospitals for 
services rendered on an inpatient basis, pharmacies or nursing homes, 
but is applicable to charges for services or treatment furnished by a 
physician or other medical professional in a hospital or nursing home 
setting. The schedule of maximum allowable charges is also not 
applicable to charges for appliances, supplies, services or treatment 
furnished by medical facilities of the U.S. Public Health Service, the 
Departments of the Army, Navy and Air Force, and the Veterans 
Administration. 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 HCPCS/CPT which represents the relative skill, effort, 
risk, and time required to perform the procedure, as compared to other 
procedures of the same general class; a classification of the procedure 
into one of the following categories: medical, surgical, pathology, 
radiology; an index representing the average cost of medical care per 
capita in the locality where service is provided, in relation to other 
areas, as a measure of the reasonable cost of a single service in that 
area; and a monetary value assignment (conversion factor) for one unit 
of value in each of the four categories of service. Payment for 
performance of a procedure identified by a HCPCS/CPT code shall not be 
more than the amount derived by multiplying the relative value for that 
procedure by the geographic index for services in that area and by the 
dollar amount assigned to one unit in that category of service.
    (2) The ``locality'' which serves as a bases for 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

[[Page 54]]

in a locality using information about enrollment and medical cost per 
county, provided by the Health Care Financing Administration (HCFA).
    (3) The Director shall assign the relative value units (RVUs) 
published by the Health Care Finance Administration (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 that he/she considers to be appropriate RVUs. 
The Director will also devise conversion factors for each category of 
service, and in devising such factors the Director may adapt the HCFA 
conversion factors as appropriate using OWCP processing experience and 
internal data. The geographic adjustment factor shall be that designated 
by Geographic Practice Cost Indices for Metropolitan Statistical Areas 
as devised for HCFA by the Urban Institute and published February 1, 
1991, as Refining the Malpractice Geographic Cost Index, as updated or 
revised from time to time.
    (4) Thus, if the unit value for a particular surgical procedure is 
14.0, and the dollar value assigned to one unit in that category of 
service (surgery) is $59.49, then the maximum allowable charge for one 
performance of that procedure, in a locale whose index is 1.0, would be 
the product of 14, 1.0, and $59.49, or $832.86.
    (e) Where there is wide variation in the time, effort and skill 
required to perform a particular procedure from one occasion to the 
next, the Director may choose not to assign a relative value to that 
procedure, but the allowable charge for the procedure may be set 
individually based on consideration of a detailed medical report and 
other evidence. The Office may, at its discretion, 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.
    (f) The Director shall review the schedule of fees at least once a 
year, and may adjust the schedule or any of its components when deemed 
necessary or appropriate.
    (g)(1) A provider's designation of the HCPCS/CPT code to identify a 
procedure being billed shall be accepted by the Office if it is 
consistent with medical reports and other evidence.

Where no code is supplied, the Office may determine the correct 
procedure code based on the narrative description of the procedure 
supplied on the billing form and in associated medical reports, and pay 
no more than the maximum allowable fee for that procedure. If the charge 
submitted by a provider for a treatment or service supplied to an 
injured employee exceeds the maximum amount determined to be reasonable 
according to the schedule, the Office 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. The provider shall also be notified of procedures for 
requesting reconsideration of the balance of the charge.
    (2) 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. Such request should be made to the OWCP District Office 
having jurisdiction over the injured employee's case, and must be 
accompanied by documentary evidence that the actual procedure performed 
was incorrectly identified by HCPCS/CPT code; that the presence of a 
severe or concomitant medical condition made treatment especially 
difficult; or that the provider possessed unusual qualifications. Board-
certification in a specialty is not sufficient evidence in itself of 
unusual qualification to justify an exception. These are the only 
circumstances which will justify reevaluation of the paid amount. 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. 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.
    (h) If an appealed amount continues to be disallowed by the decision 
of the

[[Page 55]]

OWCP District Office, the provider may apply, within thirty days of the 
date of that decision, to the Assistant Regional Administrator of the 
region having jurisdiction over the district office. The application may 
be accompanied by additional evidence. Within 60 days of receipt of the 
application, the Assistant Regional Administrator 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.
    (i)(1) 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 these regulations shall not request 
reimbursement from the employee (patient) for additional amounts.
    (2) 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 a lower rate. A charge to 
an injured Federal employee for a particular service or procedure which 
is higher than the provider's charge 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. 10.450(d).
    (3) A provider whose fee for service is partially paid by OWCP as 
the result of the application of its schedule of maximum allowable 
charges and who collects or attempts to collect from the injured 
employee, either directly or through a collection agent, any amount in 
excess of the charge allowed by the Office, and who does not cease such 
action or make appropriate refund to the injured employee within 60 days 
of the date of the decision of the Office, shall be subject to the 
exclusion procedures as provided by Sec. 10.450(h).
[51 FR 8280, Mar. 10, 1986, as amended at 56 FR 1360, Jan. 14, 1991; 59 
FR 8530, Feb. 23, 1994]



Sec. 10.412  Reimbursement for medical expenses, transportation costs, loss of wages and incidental expenses.

    (a)(1) If bills for medical, surgical, or dental services, supplies, 
or appliances have been paid for by an injured employee on account of an 
injury incurred in the performance of duty, an itemized bill on the 
American Medical Association ``Health Insurance Claim Form,'' OWCP 1500a 
``Instructions for Completing Health Insurance Claim Form,'' together 
with a medical report as provided in Sec. 10.410, may be submitted to 
the Office for consideration. The provider of such service shall state 
each diagnosed condition and furnish the applicable ICD-9-CM diagnostic 
code and identify each service performed using the applicable HCPCS/CPT 
procedure code, with a brief narrative description of the service 
performed, or where no code is applicable, a detailed description of 
that service. The bill must be accompanied by evidence that payment for 
the service was received from the injured employee and the amount of 
that payment. Acceptable evidence that payment was received includes, 
but is not necessarily limited to, a signed statement by the provider, a 
mechanical stamp or other device showing receipt of payment, a copy of 
the claimant's cancelled check (both front and back), or a copy of the 
claimant's credit card receipt.
    (2) If services were provided by a hospital, pharmacy or nursing 
home, the bill should be submitted in accordance with the provisions of 
Sec. 10.411(a)(2) or (3), as appropriate. Any request for reimbursement 
must be accompanied by evidence, as described in paragraph (a)(1) of 
this section, that payment for the service was received from the 
employee and the amount of that payment.
    (3) These requirements may be waived by the Office if extensive 
delays in the filing or the adjudication of a claim make it unusually 
difficult for the claimant to obtain the required information.
    (b) Copies of bills shall not be paid 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. 10.411.
    (c) If a claimant is only partially reimbursed for medical expenses 
because

[[Page 56]]

the amount paid by the claimant to the physician for a service exceeds 
the maximum allowable charge set by the Director's schedule, the Office 
shall advise the provider of the maximum allowable charge for the 
service in question and allow the provider the opportunity to refund to 
the claimant, or credit to the claimant's account, the amount paid by 
the claimant which exceeds the maximum allowable charge, or to request 
reconsideration of the fee determination as provided by Sec. 10.411 (g) 
and (h). Failure of the provider to make appropriate refund to the 
claimant, or to credit the claimant's account, within 60 days after the 
date of this notification by the Office, or the date of a subsequent 
reconsideration decision which continues to disallow all or a portion of 
the appealed amount, shall result in initiation of exclusion procedures 
as provided by Sec. 10.450(h).
    (d) After notification as provided in paragraph (c) of this section, 
if the amount of money paid in excess of the charge allowed by the 
Office is not refunded by the provider or credited to the claimant's 
account, the Office may make reasonable reimbursement to the claimant 
based on a review of the facts and circumstances of the case.
[51 FR 8282, Mar. 10, 1986]



Sec. 10.413  Time limitation on payment of bills.

    The Office will reimburse claimants and providers 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 calendar year in which the expense was incurred 
or the service or supply was provided, or more than one year beyond the 
calendar year in which the claim was first accepted as compensable by 
the Office, whichever is later.
[52 FR 10522, Apr. 1, 1987]



   Subpart F--Exclusion of Physicians and Other Providers of Medical 
                          Services and Supplies

    Source:  49 FR 18980, May 3, 1984, unless otherwise noted.



Sec. 10.450  Exclusion for fraud and abuse: Grounds.

    A physician, hospital, or provider of medical support services or 
supplies shall be excluded from payment under the Act if such physician, 
hospital or provider has:
    (a) Been convicted under any criminal statute for fraudulent 
activities in connection with any Federal or State program for which 
payments are made to providers for similar medical, surgical or hospital 
services, appliances or supplies;
    (b) Been excluded or suspended, or has resigned in lieu of exclusion 
or suspension, from participation in any Federal or State program 
referred to in paragraph (a) of this section.
    (c) Knowingly made or caused to be made, any false statement or 
misrepresentation of a material fact in connection with a determination 
of the right to reimbursement under the Act, 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 chapter 
containing charges which the Secretary finds to be substantially in 
excess of such provider's customary charges, unless the Secretary finds 
there is good cause for the bills or requests containing such charges;
    (e) Knowingly failed to timely reimburse claimants for treatment, 
services or supplies furnished under this chapter paid by the 
Government;
    (f) Failed, neglected or refused on three or more occasions during a 
twelve month period, to submit full and accurate medical reports, or to 
respond to requests by the Office for additional reports or information, 
as required by the Act and Sec. 10.410 of this part;
    (g) Knowingly furnished treatment, services or supplies which are 
substantially in excess of the claimant's needs, or of a quality which 
fails to meet professionally recognized standards.
    (h) Collected or attempted to collect from the claimant, either 
directly or through a collection agent, an amount in excess of the 
charge allowed by the Office for the procedure performed, and has failed 
or refused to make appropriate refund to the injured employee,

[[Page 57]]

or to cease such collection attempts, within 60 days of the date of the 
decision of the Office.
[49 FR 18980, May 3, 1984, as amended at 51 FR 8282, Mar. 10, 1986]



Sec. 10.451  Automatic exclusion.

    A physician, hospital, or provider of medical support services or 
supplies has been convicted of a crime described in paragraph (a) of 
Sec. 10.450, or excluded or suspended, or has resigned in lieu of 
exclusion or suspension, from participation in any program as described 
in paragraph (b) of Sec. 10.450, shall be automatically excluded from 
participating in the program and from seeking payment under the Act 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 be by a copy thereof 
authenticated by the seal of the court or agency concerned. See 
Sec. 10.457(a).



Sec. 10.452  Initiation of exclusion procedures.

    (a) General provision. Upon receipt of information indicating that a 
physician, hospital or provider of medical support services or supplies 
(hereinafter the provider) has engaged in activities enumerated in 
paragraphs (c) through (h) of Sec. 10.450, the Assistant Regional 
Administrator, after completion of inquiries he/she deems appropriate, 
may initiate procedures to exclude the provider from participation in 
the FECA program. For the purposes of this section, ``Assistant Regional 
Administrator'' may include any officer designated to act on his or her 
behalf.
    (b) Letter of intent. The exclusion procedure shall be initiated by 
sending a letter, signed by the Assistant Regional Administrator, 
stating his or her intention to commence proceedings to exclude the 
provider. The letter shall be sent by certified mail, return receipt 
requested and shall contain the following:
    (1) A concise statement of the grounds upon which exclusion shall be 
based;
    (2) A summary of the information, with supporting documentation, 
upon which the Assistant Regional Administrator has relied in reaching 
an initial decision that exclusion proceedings should be commenced;
    (3) An invitation to the provider to:
    (i) Resign voluntarily from participation in the FECA program 
without admitting or denying the allegations presented in the letter; or
    (ii) Request that the decision on exclusion be based upon the 
existing record and any additional documentary information the provider 
may wish to provide;
    (4) A notice of the provider's right, in the event of an adverse 
ruling by the Assistant Regional Administrator, to request a formal 
hearing before an administrative law judge;
    (5) A notice that should the provider fail to answer (as described 
below) the letter of intent within 30 calendar days of receipt, the 
Assistant Regional Administrator may deem the allegations made therein 
to be true and may order exclusion of the provider without conducting 
any further proceedings; and
    (6) The name and address of the official representative of the 
Office who shall be responsible for receiving the answer from the 
respondent.
    (c) Answer to the letter of intent. The provider's answer shall be 
in writing and shall include an answer to the Office'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.
    (d) Failure to answer. Should the provider fail to answer the letter 
of intent within 30 calendar days of receipt, the Assistant Regional 
Administrator may deem the allegations made therein to be true and may 
order exclusion of the provider.
    (e) Inspection of the record. By arrangement with the official 
representative, the provider may inspect or request copies of 
information in the record at any time prior to the Assistant Regional 
Administrator's decision.
    (f) Decision. The Assistant Regional Administrator shall issue his 
or her decision in writing, and shall send a copy of the decision to the 
provider by certificated mail, return receipt requested. The decision 
shall advise the

[[Page 58]]

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 below. The filing of a request for 
a hearing within the time specified shall operate to stay the 
effectiveness of the decision to exclude.
[49 FR 18980, May 3, 1984, as amended at 52 FR 10522, Apr. 1, 1987]



Sec. 10.453  Requests for a hearing.

    (a) A request for hearing shall be sent to the official 
representative (see Sec. 10.452(b)(6)) and contain:
    (1) A concise notice of the issues on which the provider desires to 
give evidence at the hearing.
    (2) Any request for a more definite statement by the Office.
    (3) Any request for the presentation of oral argument or evidence.
    (4) 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.
    (b) If a request for hearing is timely received by the designated 
official representative, the official 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.
    (3) A scheduled hearing date not less than thirty days after the 
date the schedule is issued, and not less than fifteen days after the 
scheduled conclusion of preliminary matters, provided that the specific 
time and place of the hearing may be set on ten days notice.
    (c) The purpose of the designation of issues is to provide for an 
effective hearing process. The provider is entitled to be heard on any 
matter placed in issue by his or her response to the Notice of Intent to 
Exclude, and may designate ``all issues'' for purposes of hearing. 
However a specific designation of issues is required if the provider 
wishes to interpose affirmative defenses, or request the issuance of 
subpoenas or the certification of questions for an advisory opinion.
    (d) The provider may make application for the issuance of subpoenas 
upon a showing of good cause therefore to the administrative law judge.
    (e) A certification of the 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 the Office 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: provided, that the opinion, if rendered by the 
organization or agency, is advisory only and not binding on the 
administrator law judge.



Sec. 10.454  Hearings and recommended decision.

    (a) To the extent appropriate proceedings before the administrative 
law judge shall be governed by 29 CFR part 18 (promulgated July 15, 
1983, at 48 FR 32538).
    (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,

[[Page 59]]

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 support 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. 10.455  Review by Director.

    (a) Procedure. 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 
the decision. The Judge's decision, however, shall be effective on the 
date issued and shall not be stayed except upon order of the Director.
    (b) Review discretionary. Review by the Director shall not be a 
matter of right but of the sound discretion of the Secretary.
    (c) Grounds. Petitions for discretionary review shall be filed only 
upon one or more of the following grounds:
    (1) A finding or conclusion of material fact is not supported by 
substantial evidence;
    (2) A necessary legal conclusion is erroneous;
    (3) The decision is contrary to law or to the duly promulgated rules 
or decisions of the Director;
    (4) A substantial question of law, policy, or discretion is 
involved; or
    (5) A prejudicial error of procedure was committed.
    (d) Requirement. 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 Judge had not been afforded an 
opportunity to pass.
    (e) Statement in opposition. 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) Scope of review. If a petition is granted, review shall be 
limited to the questions raised by the petition.
    (g) Denial of petition. 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. 10.456  Effects of exclusion.

    (a) The Office shall give notice of the exclusion of a physician, 
hospital, or provider of medical support services or supplies to:
    (1) All OWCP district offices;
    (2) All employing Federal agencies;
    (3) The Health Care Financing Administration;
    (4) The State of Local authority responsible for licensing or 
certifying the excluded party;
    (5) All claimants who are known to have had treatment, services or 
supplies from the excluded person within the six month period 
immediately preceding the order of exclusion.
    (b) Notwithstanding any exclusion of a physician, hospital, or 
provider of medical support survices or supplies under this subpart, the 
Office shall not refuse a claimant 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

[[Page 60]]

    (2) Claimant could not reasonably have been expected to have known 
of such exclusion.
    (c) A claimant who is notified that his or her attending physician 
has been excluded shall have a new right to select a duly qualified 
physician. See Sec. 10.401(b).



Sec. 10.457  Reinstatement.

    (a) If a physician, hospital, or provider of medical support 
services or supplies has been automatically excluded pursuant to 
Sec. 10.451, the person excluded will automatically be reinstated upon 
notice to the Office 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 the Office from 
instituting exclusion proceedings based upon the underlying facts of the 
matter.
    (b) A physician, hospital, or provider of medical support 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 Associate 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 decisional process.
    (d) The Associate Director shall order reinstatement only in 
instances where such reinstatement is clearly consistent with the 
ultimate goal of this subpart which is 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 G--Cases Involving the Liability of a Third Party



Sec. 10.500  Prosecution of third party action by a beneficiary.

    If an injury or death for which benefits are payable under the Act 
is caused under circumstances creating a legal liability upon some 
person or persons other than the United States to pay damages, the 
Office may require the beneficiary to prosecute an action for damages 
against the third party. When so required, the cause of action shall be 
prosecuted in the name of the beneficiary.
[52 FR 10522, Apr. 1, 1987]



Sec. 10.501  Assignment of third party.

    If an injury or death for which benefits are payable under the Act 
is caused under circumstances creating a legal liability upon some 
person other than the United States to pay damages therefore, the 
beneficiary shall, if required by the Office assign any right of action 
he may have to the United States. All such assignments shall be in 
writing and no such cause of action shall vest in the United States 
unless and until the assignment is accepted by the Office.



Sec. 10.502  Refusal to assign or prosecute claim when required; effect.

    Refusal on the part of a beneficiary to assign his right of action 
to the United States or to prosecute an action in his own name when 
required to do so pursuant to Sec. 10.500 or Sec. 10.501, shall deprive 
the beneficiary of all rights to benefits under the Act.



Sec. 10.503  Distribution of damages recovered by beneficiary.

    If an injury or death for which benefits are payable under the Act 
is caused under circumstances creating a legal liability upon a person 
or persons other than the United States to pay damages and, as a result 
of claim brought by or settlement made by the beneficiary or by someone 
acting on the beneficiary's behalf, the beneficiary recovers damages or 
receives money or other property in satisfaction of the liability on 
account of that injury or death, the

[[Page 61]]

proceeds of the recovery shall be applied as follows:
    (a) If an attorney is employed, a reasonable attorney's fee and cost 
of collection, if any, shall first be deducted from the gross amount of 
the settlement;
    (b) The beneficiary is entitled to retain one-fifth of the net 
amount of the money or other property remaining after the expenses of a 
suit or settlement have been deducted.
    (c) There shall then be remitted to the Office the benefits which 
have been paid on account of the injury including payments made on 
account of medical treatment, transportation costs, funeral expenses, 
and any other payments made under the Act on account of the injury or 
death, but not including continuation of pay as provided by 5 U.S.C. 
8118. If an attorney was employed, the amount to be remitted to the 
Office shall be reduced by an amount equivalent to a reasonable 
attorney's fee proportionate to any refund to the United States.
    (d) Any surplus remaining after proper refund has been made to the 
Office may be retained by the beneficiary but shall be credited by the 
Office against future payment of benefits to which the beneficiary may 
be entitled under the Act on account of the same injury or death.
[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10522, Apr. 1, 1987]



Sec. 10.504  Distribution of damages where cause of action is assigned.

    If recovery is realized upon a cause of action assigned to the 
United States pursuant to 5 U.S.C. 8131, the money or other property so 
received shall be applied in the following manner: After deducting the 
amount of any payments made under the Act in respect of the injury or 
death on account of which the cause of action arose, and the expense of 
such realization or collection, which sum shall be placed to the credit 
of the proper fund of the Office, the surplus, if any, of such amount 
received shall be paid to the beneficiary and credited pro tanto upon 
any future payment of benefits payable to him on account of the same 
injury. However, the beneficiary is entitled to not less than one-fifth 
of the net amount of a settlement or recovery remaining after the 
expenses of such realization or collection have been deducted.



Sec. 10.505  Office may require beneficiary to settle or compromise third party suit.

    Where a beneficiary under the Act has commenced an action in his or 
her own name or has initiated such action through an administrator of a 
deceased person to recover damages against the third party liable for 
the injury or death, the Office shall, at all times, have authority to 
require the beneficiary or such administrator to settle or compromise 
such action whenever it shall determine that further prosecution of the 
cause of action is not warranted. Refusal on the part of such 
beneficiary or other person acting in the interest of the beneficiary to 
make such settlement or to effect such compromise when so directed shall 
be deemed to be sufficient cause for refusal on the part of the Office 
to pay or cause to be paid any benefits under the Act on account of the 
same injury or death, or the Office may suspend or cause to suspend the 
payment of benefits under the Act during the period of such refusal.



Sec. 10.506  Official superior's responsibility in cases involving potential third party liability.

    If it appears that an injury or death for which benefits are payable 
under the Act was caused under circumstances creating a legal liability 
upon a person or persons other than the United States to pay damages, 
the official superior or other agency official shall investigate the 
third party aspect of the injury or death and submit a report of the 
findings with related documents to the Office.
[52 FR 10523, Apr. 1, 1987]



Sec. 10.507  Satisfaction of the interest of the United States.

    No court, insurer, attorney, or other person shall pay or distribute 
to the beneficiary or the beneficiary's designee the proceeds of any 
suit or settlement without first satisfying or assuring satisfaction of 
the interest of the United States.
[52 FR 10523, Apr. 1, 1987]

[[Page 62]]



                  Subpart H--Special Category Employees

    Source:  52 FR 10523, Apr. 1, 1987, unless otherwise noted.

                         Peace Corps Volunteers



Sec. 10.600  Definition of volunteer.

    The term ``volunteer'' means--
    (a) A volunteer enrolled in the Peace Corps under 22 U.S.C. 2504;
    (b) A volunteer leader enrolled in the Peace Corps under 22 U.S.C. 
2505; and
    (c) An applicant for enrollment as a volunteer or volunteer leader 
during a period of training under 22 U.S.C. 2507(a) before enrollment.



Sec. 10.601  Applicability of the Act.

    Except as provided by 5 U.S.C. 8142 and elsewhere in this subpart, 
the provisions of the Act are applicable to Peace Corps volunteers.



Sec. 10.602  When disability compensation commences.

    Pursuant to 5 U.S.C. 8142(b), entitlement to disability compensation 
payments does not commence until the day after the date of termination 
of the volunteer's service.



Sec. 10.603  Pay rate for compensation purposes.

    (a) The pay rate of a volunteer is the lowest step of grade 7 of the 
General Schedule.
    (b) The pay rate of a volunteer leader is the lowest step of grade 
11 of the General Schedule.
    (c) The pay rate of a volunteer with one or more minor children as 
defined in 22 U.S.C. 2504 is the lowest step of grade 11 of the General 
Schedule.
    (d) The pay rate for compensation purposes is defined as the pay 
rate in effect on the date following separation, provided that it is 
equal to or greater than the pay rate on the date of injury, and is not 
subject to the provisions of 5 U.S.C. 8101(4).



Sec. 10.604  Period of service as a volunteer.

    The period of service of an individual as a volunteer includes any 
period of training under 22 U.S.C. 2507(a) before enrollment as a 
volunteer and the period between enrollment as a volunteer and the 
termination of service as a volunteer by the President or by death or 
resignation.



Sec. 10.605  Conditions of coverage while serving outside the United States and the District of Columbia.

    (a) Any injury suffered by a volunteer during any time when the 
volunteer is located abroad shall be presumed to have been sustained in 
the performance of duty and any disease or illness contracted during 
such time shall be presumed to be proximately caused by the employment, 
except the presumption will be rebutted by evidence that:
    (1) The injury or disease or illness was caused by the volunteer'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 volunteer; or
    (2) The disease or illness is shown to have pre-existed the period 
of service abroad; or
    (3) The disease or illness or condition claimed is either a 
manifestation of symptoms of or consequent to a pre-existing congenital 
defect or abnormality.
    (b) If an injury is not presumed to have been sustained in the 
performance of duty as provided by paragraph (a) of this section, the 
volunteer has the burden of proving by the submission of substantial and 
probative evidence that the injury was sustained in the performance of 
duty with the Peace Corps.
    (c) If a disease or illness or claimed condition, or episode 
thereof, comes within exception paragraph (a)(2) or (a)(3) of this 
section, the volunteer has the burden of proving by the submission of 
substantial, probative and reasoned medical evidence that it was 
proximately caused by the factors of conditions of Peace Corps service, 
or that the condition was materially aggravated, or accelerated or 
precipitated by factors of Peace Corps Service.

[[Page 63]]

                  Non-Federal Law Enforcement Officers



Sec. 10.610  Definition of a law enforcement officer.

    For purposes of this subpart, a law enforcement officer is defined 
as an employee of a State or local government including 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, District of 
Columbia Code, whose functions include one or more of the following:
    (a) The apprehension of persons sought for the commission of crimes, 
including those sought by a law enforcement agency for such commission, 
as well as material witnesses sought in connection with criminal cases; 
or
    (b) The protection or guarding of persons held for the commission of 
crimes or as such material witnesses; or
    (c) The prevention of the commission of crimes.



Sec. 10.611  Applicability.

    Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in this 
subpart, the provisions of the Act and subparts A, B, and D through G 
are applicable to law enforcement officers, as defined in Sec. 10.610.



Sec. 10.612  Conditions for eligibility.

    (a) The benefits of the Act are available as provided in 5 U.S.C. 
8191 et seq. and this subpart to a law enforcement officer as defined in 
Sec. 10.610 and his or her survivors if the Office determines that an 
individual on any given occasion was--
    (1) A law enforcement officer and to have been engaged on a given 
occasion in the apprehension or attempted apprehension of any person:
    (i) For the commission of a crime against the United States, or
    (ii) Who at that time was sought by a law enforcement authority of 
the United States for the commission of a crime against the United 
States, or
    (iii) Who at that time was sought as a material witness in a 
criminal proceeding instituted by the United States; or
    (2) A law enforcement officer and to have been engaged on that 
occasion in protecting or guarding a person held for the commission of a 
crime against the United States or as a material witness in connection 
with such crime; or
    (3) A law enforcement officer and to have been engaged on that 
occasion in the lawful prevention of, or lawful attempt to prevent, the 
commission of a crime against the United States;

and to have been on that occasion not an employee as defined in 5 U.S.C. 
8101 (1) and to have sustained on that occasion a personal injury for 
which the United States would be required under 5 U.S.C. 8101 to pay 
compensation if the individual has been on that occasion an employee 
within the meaning of 5 U.S.C. 8101 (1) engaged in the performance of 
duty.
    (b) The mere fact that an injury to a law enforcement officer is in 
some way related to the commission of a Federal crime does not in itself 
bring the injury within the scope of this subpart. For the purpose of 
this subpart, being engaged in the apprehension or attempted 
apprehension of a person for the commission of a crime against the 
United States requires that the specific criminal activity which caused 
the officer's response was an actual Federal crime. Further, where the 
actions which result in an injury to an officer are based solely on a 
local police matter, the later discovery (i.e., discovery after the 
arrest has been made) of a Federal crime or potential Federal crime does 
not in itself bring the injury within the meaning of 5 U.S.C. 8191. For 
example, coverage under this subpart would extend to an officer who 
responded to an armed robbery and who was shot by the suspect. (For the 
purpose of this example, the suspect must be illegally in possession of 
a firearm in violation of Federal law.) With the officer's knowledge of 
an armed robbery (and/or the actual viewing of a firearm in the 
possession of the suspect), the firearm would be both an integral part 
of a Federal crime and a part of the specific criminal activity to which 
the officer was reacting. Coverage would be extended in this situation 
even though the officer may not have been aware at the time that the 
suspect was in fact in violation of Federal law. However, coverage under 
this

[[Page 64]]

subpart would not be extended to an officer injured while apprehending 
an individual for a violation of local law where it is discovered during 
a search of the individual (i.e., after the arrest has been made) that 
the individual was in violation of Federal law due to illegal possession 
of a controlled substance. In this situation, even though the individual 
was in violation of Federal law, the existence of the controlled 
substance was not a part of the specific criminal activity to which the 
officer was responding and thus did not play a part in the apprehension. 
Coverage would be extended in this situation if the officer had been 
aware of the existence of the substance prior to the arrest being made. 
To be considered a part of the criminal activity, it would not be 
necessary for the officer to know the nature of the substance, but only 
that the officer had reason to believe it was a controlled substance. If 
later investigation showed that the substance was not in fact a 
controlled substance, coverage would not be extended since no Federal 
crime had in fact been committed. Similarly, an officer injured while 
responding to an alarm of a robbery at a federally insured bank would be 
entitled to benefits as provided by this subpart. However, coverage 
would not be extended where the alarm was false since no Federal crime 
had actually occurred.
    (c) Coverage for injuries or death while a law enforcement officer 
and to have been engaged on that occasion in the lawful prevention of, 
or lawful attempt to prevent, the commission of a crime against the 
United States shall not attach unless a Federal crime had been committed 
or was about to be committed. Whether or not a Federal crime was about 
to be committed cannot be open to speculation. The threat must be actual 
and imminent. However, in situations where the 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 individual entitled to be provided or actually provided 
protection by the U.S. Secret Service pursuant to 18 U.S.C. 3056(a), 3 
U.S.C. 202-209, and the regulations promulgated pursuant to the latter 
provisions at 31 CFR 13.1--13.8, coverage will be extended for injury or 
death sustained in such activity, because the threat of Federal crime in 
those circumstances is presumed to be always imminent.
    (d) No person otherwise eligible to receive a benefit under this 
subpart because of the disability or death of an eligible officer shall 
be barred from the receipt of such benefit because the person 
apprehended or attempted to be apprehended by such officer was then 
sought for the commission of a crime against a sovereignty other than 
the United States.
    (e) Coverage for members of the U.S. Park Police and those members 
of the Uniformed Division of the U.S. Secret Service who are covered 
under the District of Columbia Policemen and Firemen's Retirement and 
Disability Act is limited to specific activities involving crimes 
against the United States, and does not include numerous tangential 
activities of law enforcement, such as reporting for work, changing 
clothing etc., even though the laws enforced in the job deal solely with 
crimes against the United States. However, members of the Non-Uniformed 
Division of the U.S. Secret Service who are covered under the District 
of Columbia Policemen and Firemen's Retirement and Disability Act are 
considered to be engaged in the types of activities specified in 5 
U.S.C. 8191 (1) through (3), and are covered by the provisions of 5 
U.S.C. 8191-8193 during the performance of all official duties.



Sec. 10.613  Time for filing a claim.

    A claim for benefits under the Act must be received by the Office 
within 5 years after the injury or death. The five-year limitation is 
maximum and mandatory and is not subject to waiver.



Sec. 10.614  How to file a notice of injury or death.

    (a) A claim for benefits due to the injury or death of an eligible 
officer shall be made by--
    (1) Any eligible officer or survivor of an eligible officer,

[[Page 65]]

    (2) Any guardian, personal representative, or other person legally 
authorized to act on behalf of an eligible officer, his or her estate, 
or any of his or her survivors, or
    (3) Any association of law enforcement officers which is acting on 
behalf of an eligible officer or any of his or her survivors.
    (b) The form provided for filing a claim for injury or occupational 
disease is CA-721.
    (c) The form provided for filing a claim for death is CA-722.
    (d) A claim for benefits should be submitted to the officer's 
employing agency for completion and forwarding to the Office of Workers' 
Compensation Programs.



Sec. 10.615  Benefits.

    (a) In the event of injury the Office shall furnish to any eligible 
officer the benefits, except for Continuation of Pay, to which he or she 
would have been entitled under subparts A through H of this part if, on 
the occasion giving rise to eligibility, the officer had been an 
employee as defined in 5 U.S.C. 8101(1) engaged in the performance of 
duty. However, such benefits shall be reduced or adjusted as the 
Secretary in his discretion may deem appropriate to reflect comparable 
benefits, if any, received by the officer (or which the officer would 
have been entitled to receive but for this subpart) by virtue of actual 
employment on that occasion. When an eligible officer has contributed to 
a disability compensation fund, the reduction of Federal benefits 
provided for in this subsection is to be limited to the amount of the 
State or local government benefits which bears the same proportion to 
the full amount of such benefits as the cost or contribution paid by the 
State or local government bears to the cost of disability coverage for 
the individual officer.
    (b) In the event of death the Secretary shall pay to any survivor of 
an eligible officer the difference, as determined by the Secretary in 
his discretion, between the benefits to which that survivor would be 
entitled if the officer had been an employee defined in 5 U.S.C. 8101(1) 
engaged in the performance of duty on the occasion giving rise to 
eligibility, and the comparable benefits, if any, received by the 
survivor (or which that survivor would have been entitled to receive but 
for this subpart) by virtue of the officer's actual employment on that 
occasion. When an eligible officer has contributed to a survivor's 
benefit fund, the reduction of Federal benefits provided for in this 
subsection is to be limited to the amount of the State or local 
government benefits which bears the same proportion to the full amount 
of such benefits as the cost or contribution paid by the State or local 
government bears to the cost of survivors' benefits coverage for the 
eligible officer.



Sec. 10.616  Computation of benefits.

    (a) In determining the amount of benefits payable to an eligible 
officer or survivors of an eligible officer, the Office shall compute 
the beneficiaries' entitlement under the Act including applicable cost-
of-living adjustments under 5 U.S.C. 8146a, then reduce the amounts by 
any comparable benefits payable by a State or local entity for the same 
injury or death.
    (b) Benefits payable under the Public Safety Officers' Benefit Act 
(42 U.S.C. 3796) for the same death constitute a prohibited dual benefit 
and any benefits payable under the Act will be reduced commensurate with 
the amounts payable under 42 U.S.C. 3796. Where a lump sum benefit is 
paid under 42 U.S.C. 3796, no benefits under the Act will be paid to a 
beneficiary until the entire amount, or the individual beneficiaries' 
portions of the entire amount, has been fully recovered.
    (c) Where one or more beneficiaries in a death claim is not eligible 
to receive compensation due to the fact that comparable benefits from a 
State or local program or benefits payable under another Federal program 
exceed what is payable to the individual(s) under the Act, no adjustment 
shall be made to the percentage(s) upon which compensation is computed 
for other beneficiaries until the happening of an event which would 
otherwise change the criteria for determining entitlement under the Act, 
e.g., death or remarriage of a spouse, a child turning 18 or marrying, 
or the birth of a posthumous child.

[[Page 66]]



Sec. 10.617  Responsibilities of the claimant, the employing agency and the Office.

    (a) The claimant, or someone acting on his or her behalf as 
specified in Sec. 10.614(a), shall be responsible for fully completing 
all forms, or portions thereof, which require information of the 
claimant, as well as for providing any supporting documentation or 
statements requested in support of the claim for benefits.
    (b) The employing law enforcement agency is responsible for fully 
completing all necessary portions of claim forms designated for the 
employing agency and for submitting evidence necessary to the Officer's 
determination of coverage under 5 U.S.C. 8191 including police reports, 
investigative reports, and records providing or disproving the 
involvement of a Federal crime or Federal felony.
    (c) The Office is responsible for evaluating a claim, advising of 
the deficiencies in a claim and requesting supportive information of the 
claimant and employing agency. Nothing in this subpart shall be 
construed as placing the burden on the Office to secure the information 
needed to discharge the responsibilities of the claimant(s) or the 
employing agency.



Sec. 10.618  Consultation with Attorney General and other agencies.

    The Secretary may refer any application received pursuant to this 
subpart to the Attorney General for assistance, comments and advice as 
to any determination required to be made pursuant to 5 U.S.C. 8191. The 
Secretary may request any Federal department or agency to supply any 
statistics, data or any other materials deemed necessary to carry out 
the functions of this subpart. Each such department or agency shall 
cooperate with the Secretary and, to the extent permitted by law, 
furnish such materials to him or her.



Sec. 10.619  Cooperation with State and local agencies.

    The Secretary shall cooperate fully with the appropriate State and 
local officials, and shall take all other practicable measures, to 
assure that the benefits of this subpart and the Act are made available 
to eligible officers and their survivors with a minimum of delay and 
difficulty.

                     Federal Grand and Petit Jurors



Sec. 10.620  Definition of juror.

    The term ``juror'' means an individual selected pursuant to chapter 
21 of title 28, United States Code, and serving as a petit or grand 
juror.



Sec. 10.621  Applicability.

    Except as provided by 28 U.S.C. 1877 and elsewhere in the subpart, 
the provisions of the Act and subparts A, B, C, and D through G are 
applicable to Federal grand or petit jurors as defined in Sec. 10.620.



Sec. 10.622  Performance of duty.

    (a) Performance of duty as a juror 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) For the purposes of this subpart, a juror is not 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. 10.623  When disability compensation commences.

    Pursuant to 28 U.S.C. 1877, entitlement to disability compensation 
payments does not commence until the day after the date of termination 
of service as a juror.



Sec. 10.624  Pay rate 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 a 
Government employee 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.

[[Page 67]]



PART 25--COMPENSATION FOR DISABILITY AND DEATH OF NONCITIZEN FEDERAL EMPLOYEES OUTSIDE THE UNITED STATES--Table of Contents




                      Subpart A--General Provisions

Sec.
25.1  General statement.
25.2  General adoption of local law.
25.3  General provisions relating to special schedule.
25.4  Authority to settle and pay claims.
25.5  Applicable criteria.
25.6  Third and fourth country nationals.
25.7  Non-citizen residents of possessions.

               Subpart B--Special Schedule of Compensation

25.11  Compensation for disability.
25.12  Compensation for death.
25.13  General provisions.

        Subpart C--Extensions of Special Schedule of Compensation

25.21  Republic of the Philippines.
25.22  Australia.
25.23--25.24  [Reserved]
25.25  Republic of Korea.
25.26  Japanese seamen.
25.27  Territory of Guam (nonresident aliens).

    Authority:  Sec. 32, 39 Stat. 749, as amended; (5 U.S.C. 8145, 
8149); 1946 Reorg. Plan No. 2, sec. 3, 3 CFR 1943-1948 Comp., p. 1064; 
60 Stat. 1095; 1950 Reorg. Plan No. 19, sec. 1, 3 CFR 1949-1953 Comp., 
p. 1010; 64 Stat. 1271, unless otherwise noted.

    Source:  40 FR 6891, Feb. 14, 1975, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 25.1  General statement.

    The provisions of this part shall apply in respect to compensation, 
under the Federal Employees' Compensation Act, payable only to employees 
of the United States who are neither citizens nor residents of the 
United States, any territory, or Canada, or payable to any dependents of 
such employees. It has previously been determined, pursuant to 5 U.S.C. 
8137, that the amount of compensation, as provided under such Act, is 
substantially disproportionate to the compensation for disability or 
death which is payable in similar cases under local law, regulation, 
custom, or otherwise, in areas outside the United States, any territory, 
or Canada. Therefore, in respect to cases of such employees whose injury 
(or injury resulting in death) has occurred subsequent to December 7, 
1941, or may occur, the following provisions shall be applicable.



Sec. 25.2  General adoption of local law.

    (a) Pursuant to the provisions of 5 U.S.C. 8137, the benefit 
features of local workers' compensation laws, or provisions in the 
nature of workers' compensation, in effect in the areas referred to in 
Sec. 25.1, shall, effective as of December 7, 1941, by adoption and 
adaptation, as recognized by the Director, Office of Workers' 
Compensation Programs, apply in the cases of the employees specified in 
Sec. 25.1: Provided, however, That there is not established and 
promulgated under this part, for the particular locality, or for a class 
of employees in the particular locality, a special schedule of 
compensation for injury or death.
    (b) The benefit provisions as thus adopted or adapted are those 
dealing with the money payments for injury and death (including 
provisions dealing with medical, surgical, hospital and similar 
treatment and care), as well as those dealing with services and purposes 
forming an integral part of the local plan, provided they are of a kind 
or character similar to services and purposes authorized by the Federal 
Employees' Compensation Act. Procedural provisions, designations of 
classes of beneficiaries in death cases, limitations (except those 
affecting amounts of benefit payments), and any other provisions not 
directly affecting the amounts of the benefit payments, in such local 
plans, shall not apply, but in lieu thereof the pertinent provisions of 
the Federal Employees' Compensation Act shall apply, unless modified by 
further specification in this section. However, the Director may at any 
time modify, limit or redesignate the class or classes of beneficiaries 
entitled to death benefits, including the designation of persons, 
representatives, or groups entitled to payment under local statute or 
custom whether or not included in the classes of beneficiaries otherwise 
specified by this subchapter.

[[Page 68]]

    (c) Compensation in all cases of such employees paid and closed 
prior to the effective date of the regulations in this part shall be 
deemed compromised and paid under 5 U.S.C. 8137; in all other cases 
compensation may be adjusted to conform with the regulations in this 
part, or the beneficiary may by compromise or agreement with the 
Director have compensation continued on the basis of a previous 
adjustment of the claim.
    (d) Persons employed in a country or area having no well-defined 
workers' compensation benefits structure shall be accorded the benefits 
provided--either by local law or special schedule--in a nearby country 
as determined by the Director. In selecting the benefit structure to be 
applied, equity and administrative feasibility shall be given due 
consideration, as well as local custom.
    (e) Compensation for disability and death of noncitizens outside the 
United States under this part, whether paid under local law or special 
schedule, shall in no event exceed that generally payable under the 
Federal Employees' Compensation Act.



Sec. 25.3  General provisions relating to special schedule.

    The special schedule established by subpart B of this part is 
intended as the vehicle of general basic provisions, to be adapted, with 
such modifications as may be necessary, and as local conditions outside 
the United States require. The application of this special schedule will 
be by specific and appropriate provision in the regulations in this 
part, such provision specifying the locality to which applied, and the 
particular modifications of or additions to the schedule, as may be 
made.



Sec. 25.4  Authority to settle and pay claims.

    In addition to the authority to receive, process, and pay claims, 
when delegated such representative or agency receiving delegation of 
authority shall, in respect to cases adjudicated under this part, and 
when so authorized by the Director, have authority (a) to make lump sum 
awards (in the manner prescribed by 5 U.S.C. 8135) whenever such 
authorized representative shall deem such settlement to be for the best 
interest of the United States, and (b) to compromise and pay claims for 
any benefits provided for under this part, including claims in which 
there is a dispute as to jurisdiction or other facts, or questions of 
law. The Director shall, in administrative instructions to the 
particular representative concerned, establish such procedures in 
respect to action under this section as may be deemed necessary, and may 
specify the scope of any administrative review of such action.



Sec. 25.5  Applicable criteria.

    The following criteria shall apply to cases of employees specified 
in Sec. 25.1 and such cases, if otherwise compensable, shall be approved 
only upon evidence of the following nature without regard to the date of 
injury or death for which claim is made:
    (a) Appropriate certification by the Federal employing 
establishment, or;
    (b) An armed service's casualty or medical record, or;
    (c) Verification of the employment and casualty by military 
personnel, or;
    (d) Recommendation of an armed service's ``Claim Service'' based on 
investigations conducted by it.

(79 Stat. 592)



Sec. 25.6  Third and fourth country nationals.

    (a) Definitions. (1) A third country national is a person who is 
neither a citizen nor resident of the United States who is hired by the 
United States in the person's country of citizenship or residence for 
employment in another foreign country, or in a possession or territory 
of the United States.
    (2) A fourth country national is a person who is neither a citizen 
nor resident of either the country of hire or the place of employment, 
but otherwise meets the definition of third country national.
    (3) ``Benefits applicable to local hires'' are the benefits provided 
in this part by local law or special schedule, as determined by the 
Director. In relation to a United States territory or possession, local 
law means only the law of the particular territory or possession.
    (b) Benefits payable. (1) Third and fourth country nationals shall 
be paid

[[Page 69]]

the benefits applicable to local hires in the country of hire or the 
place of employment, whichever benefits are greater, provided that all 
benefits payable on account of one injury must be paid under the same 
benefit structure.
    (2) Where no well-defined workers' compensation benefits structure 
is provided in either the country of hire or the place of employment, 
the provisions of Sec. 25.2(d) shall apply.
    (3) Where equitable considerations as determined by the Director so 
warrant, a fourth country national may be awarded benefits applicable to 
local hires in his home country.



Sec. 25.7  Non-citizen residents of possessions.

    An employee who is a bona fide permanent resident of any United 
States possession, territory, commonwealth or trust territory shall be 
accorded the full benefits of the basic law (Federal Employees' 
Compensation Act, as amended), provided that the application of the 
minimum benefit provisions therein shall be governed by the restrictions 
set forth in 5 U.S.C. 8138.



               Subpart B--Special Schedule of Compensation



Sec. 25.11  Compensation for disability.

    Compensation for disability shall be paid to the employee as 
follows:
    (a) Permanent total disability. In case of disability, total in 
character and permanent in quality, 66\2/3\ per centum of the monthly 
pay during the continuance of such disability.
    (b) Temporary total disability. In case of disability, total in 
character and temporary in quality, 66\2/3\ per centum of the monthly 
pay during the continuance of such disability.
    (c) Permanent partial disability. In case of disability, partial in 
character and permanent in quality, 66\2/3\ per centum of the monthly 
pay, for the following losses and periods:
    (1) Arm lost, 280 weeks' compensation.
    (2) Leg lost, 248 weeks' compensation.
    (3) Hand lost, 212 weeks' compensation.
    (4) Foot lost, 173 weeks' compensation.
    (5) Eye lost, 140 weeks' compensation.
    (6) Thumb lost, 51 weeks' compensation.
    (7) First finger lost, 28 weeks' compensation.
    (8) Great toe lost, 26 weeks' compensation.
    (9) Second finger lost, 18 weeks' compensation.
    (10) Third finger lost, 17 weeks' compensation.
    (11) Toe, other than great toe, lost, 8 weeks' compensation.
    (12) Fourth finger lost, 7 week's compensation.
    (13) Loss of hearing: One ear, 52 weeks' compensation; both ears, 
200 weeks' compensation.
    (14) Phalanges: Compensation for loss of more than one phalanx of a 
digit shall be the same as for the loss of the entire digit. 
Compensation for loss of the first phalanx shall be one-half of the 
compensation for the loss of the entire digit.
    (15) Amputated arm or leg: Compensation for an arm or a leg, if 
amputated at or above the elbow or the knee, shall be the same as for 
the loss of the arm or leg; but, if amputated between the elbow and the 
wrist, or between the knee and the ankle, the compensation shall be the 
same as for the loss of the hand or the foot.
    (16) Binocular vision or per centum of vision: Compensation for loss 
of binocular vision, or for 80 per centum or more of the vision of an 
eye shall be the same as for the loss of the eye.
    (17) Two or more digits: Compensation for loss of two or more 
digits, one or more phalanges of two or more digits of a hand or foot 
may be proportioned to the loss of use of the hand or foot occasioned 
thereby, but shall not exceed the compensation for the loss of a hand or 
a foot.
    (18) Total loss of use: Compensation for a permanent total loss of 
use of a member shall be the same as for loss of the member.
    (19) Partial loss or partial loss of use: Compensation for permanent 
partial loss or loss of use of a member may be for proportionate loss of 
use of the member.
    (20) Consecutive awards: In any case in which there shall be a loss 
or loss of use of more than one member or parts of more than one member, 
set forth in

[[Page 70]]

paragraphs (c)(1) to (19), inclusive, of this section but not amounting 
to permanent total disability, the award of compensation shall be for 
the loss or loss of use of each such member or part thereof, which 
awards shall run consecutively, except that where the injury affects 
only two or more digits of the same hand or foot, paragraph (c)(17) of 
this section shall apply.
    (21) Other cases: In all other cases within this class of disability 
the compensation during the continuance of disability shall be that 
proportion of compensation for permanent total disability, as determined 
under paragraph (a) of this section, which is equal in percentage to the 
degree or percentage of physical impairment caused by the disability.
    (22) Compensation under paragraph (c)(1) to (21), inclusive, of this 
section for permanent partial disability shall be in addition to any 
compensation for temporary total or temporary partial disability under 
this section, and awards for temporary total, temporary partial, and 
permanent partial disability shall run consecutively.
    (d) Temporary partial disability. In case of disability, partial in 
character and temporary in quality, during the continuance of disability 
that proportion of compensation for temporary total disability, as 
determined under paragraph (b) of this section, which is equal in 
percentage to the degree or percentage of physical impairment caused by 
the disability.



Sec. 25.12  Compensation for death.

    If the disability causes death the compensation shall be payable in 
the amount and to or for the benefit of the persons, determined as 
follows:
    (a) To the undertaker or person entitled to reimbursement, 
reasonable funeral expenses not exceeding $200.
    (b) To the widow, if there is no child, 35 per centum of the monthly 
pay until her death or remarriage.
    (c) To the widower, if there is no child and if wholly dependent for 
support upon the deceased employee at the time of her death, 35 per 
centum of the monthly pay until his death or remarriage.
    (d) To the widow or widower, if there is a child, the compensation 
payable under paragraph (b) or (c) of this section, and in addition 
thereto 10 per centum of the monthly wage for each child, not to exceed 
a total of 66\2/3\ per centum for such widow or widower and children. If 
a child has a guardian other than the surviving widow or widower, the 
compensation payable on account of such child shall be paid to such 
guardian. The compensation of any child shall cease when he or she dies, 
marries, or reaches the age of 18 years, or if over such age, and 
incapable of self-support, becomes capable of self-support.
    (e) To the children, if there is no widow or widower, 25 per centum 
of such monthly pay for one child and 10 per centum thereof for each 
additional child, not to exceed a total of 66\2/3\ per centum thereof, 
divided among such children share and share alike. The compensation of 
each child shall be paid until he or she dies, marries, or reaches the 
age of 18, or if over such age, and incapable of self-support, becomes 
capable of self-support. The compensation of a child under legal age 
shall be paid to its guardian, if there is one, otherwise to the person 
having the custody or care of such child, for such child, as the 
Director in his or her discretion shall determine.
    (f) To the parents, if one is wholly dependent for support upon the 
deceased employee at the time of his death and the other is not 
dependent to any extent, 25 per centum of such monthly pay; if both are 
wholly dependent, 20 per centum thereof to each; if one is or both are 
partly dependent, a proportionate amount in the discretion of the 
Director. The compensation to a parent or parents in the percentages 
specified shall be paid if there is no widow, widower, or child, but if 
there is a widow, widower, or child, there shall be paid so much of such 
percentages for a parent or parents, as, when added to the total of the 
percentages of the widow, widower, and children, will not exceed a total 
66\2/3\ per centum of such pay.
    (g) To the brothers, sisters, grandparents, and grandchildren, if 
one is wholly dependent upon the deceased employee for support at the 
time of his or her death, 20 per centum of such pay to such dependent if 
more than one are wholly dependent; 30 per centum of

[[Page 71]]

such pay, divided among such dependents share and share alike; if there 
is no one of them wholly dependent, but one or more are partly 
dependent, 10 per centum of such pay divided among such dependents share 
and share alike. The compensation to such beneficiaries shall be paid if 
there is no widow, widower, child, or dependent parent. If there is a 
widow, widower, child, or dependent parent, there shall be paid so much 
of the above percentages as, when added to the total of the percentages 
payable to the widow, widower, children, and dependent parents, will not 
exceed a total of 66\2/3\ per centum of such pay.
    (h) The compensation of each beneficiary under paragraphs (f) and 
(g) of this section shall be paid until he or she, if a parent or 
grandparent, dies, marries, or ceases to be dependent, or, if a brother, 
sister, or grandchild, dies, marries, or reaches the age of 18 years, or 
if over such age and incapable of self-support becomes capable of self-
support. The compensation of a brother, sister, or grandparent under 
legal age shall be paid to his or her guardian, if there is one, 
otherwise to the person having the custody or care of such child, for 
such child, as the Director in his or her discretion shall determine.
    (i) Upon the cessation of any person's compensation for death under 
this subpart, the compensation of any remaining person entitled to the 
continuation of compensation in the same case shall be adjusted, so that 
the continuing compensation shall be at the same rate such person would 
have received, had no award been made to the person whose compensation 
was terminated.
    (j) In case there are two or more classes of persons entitled to 
compensation for death under this subpart, and the apportionment of such 
compensation as above provided would result in injustice, the Director 
may in his or her discretion modify the apportionments to meet the 
requirements of the case.



Sec. 25.13  General provisions.

    (a) The definitions of terms in the Federal Employees' Compensation 
Act of September 7, 1916, as amended shall apply to terms used in this 
subpart.
    (b) The provisions of such Act unless modified by this subpart, or 
unless otherwise inapplicable, shall be applied whenever possible in the 
application of this subpart.
    (c) The provisions of the regulations for the administration of the 
Federal Employees' Compensation Act, as amended, and as supplemented 
from time to time by instructions applicable to this subpart, shall 
apply in the administration of compensation under this subpart, whenever 
they can reasonably be applied.



        Subpart C--Extensions of Special Schedule of Compensation



Sec. 25.21  Republic of the Philippines.

    (a) Modified special schedule of compensation. The special schedule 
of compensation established in subpart B of this part shall apply, with 
the modifications or additions specified in paragraphs (b) through (k) 
of this section, in the Republic of the Philippines, to injury or death 
occurring on or after July 1, 1968, with the following limitations:
    (1) Temporary disability. Benefits for payments accruing on and 
after July 1, 1969, for injuries causing temporary disability and which 
occurred on and after July 1, 1968, shall be payable at the rates in the 
special schedule as modified in this section.
    (2) Permanent disability and death. Benefits for injuries occurring 
on and after July 1, 1968, which cause permanent disability or death 
shall be payable at the rates specified in the special schedule as 
modified in this section for (i) all awards not paid in full before July 
1, 1969, and (ii) any award paid in full prior to July 1, 1969: 
Provided, That application for adjustment is made, and the adjustment 
will result in additional benefits of at least $10. (In the case of 
injuries or death occurring on or after December 8, 1941, and prior to 
July 1, 1968, the special schedule as modified in this section may be 
applied to prospective awards for permanent disability or death, 
provided that the monthly and aggregate maximum provisions in effect at 
the time of injury or death shall prevail. These maxima are $50 and 
$4,000, respectively.)

[[Page 72]]

    (b) Death benefits. 400 weeks' compensation at two-thirds of the 
weekly wage rate, shared equally by the eligible survivors in the same 
class.
    (c) Death beneficiaries. Benefits are payable to the survivors in 
the following order of priority (all beneficiaries in the highest 
applicable cases are entitled to share equally):
    (1) Widow, dependent widower, and unmarried children under 18, or 
over 18 and totally incapable of self-support.
    (2) Dependent parents.
    (3) Dependent grandparents.
    (4) Dependent grandchildren, brothers and sisters who are unmarried 
and under 18, or over 18 and totally incapable of self-support.
    (d) Burial allowance. 14 weeks' wages or $400, whichever is less, 
payable to the eligible survivor(s), regardless of the actual expense. 
If there is no eligible survivor, actual burial expenses may be paid or 
reimbursed, in amount not to exceed what would be paid to an eligible 
survivor.
    (e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
    (f) Permanent partial disability. Where applicable the compensation 
provided in paragraphs (c)(1) through (19) of the special schedule, 
subject to an aggregate limitation of 400 weeks' compensation. In all 
other cases, provided for permanent total disability that proportion of 
the compensation (paragraph (e) of this section) which is equivalent to 
the degree or percentage of physical impairment caused by the 
disability.
    (g) Temporary partial disability. Two-thirds of the weekly loss of 
wage-earning capacity.
    (h) Compensation period for temporary disability. Compensation for 
temporary disability is payable for a maximum period of 80 weeks.
    (i) Maximum compensation. The total aggregate compensation payable 
in any case, for injury or death or both, shall not exceed $8,000, 
exclusive of medical costs and burial allowance. The weekly rate of 
compensation disability or death shall not exceed $35.
    (j) Method of payment. Only compensation for temporary disability 
shall be payable periodically. Compensation for permanent disability and 
death shall be payable in full at the time extent of entitlement is 
established.
    (k) Exceptions. The Director in his or her discretion may make 
exceptions to these regulations by:
    (1) Reapportioning death benefits, for the sake of equity.
    (2) Excluding from consideration potential death beneficiaries who 
are not available to receive payment.
    (3) Paying compensation for permanent disability or death on a 
periodic basis, where this method of payment is considered to be in the 
best interest of the beneficiary.



Sec. 25.22  Australia.

    (a) The special schedule of compensation established by subpart B of 
this part shall apply with the modifications or additions specified in 
paragraph (b) of this section, as of December 8, 1941, in Australia, in 
all cases of injury (or death from injury) which occurred between 
December 8, 1941, and December 31, 1961, inclusive, and shall be applied 
retrospectively in all such cases of injury (or death from injury). 
Compensation in all such cases pending as of July 15, 1946, shall be 
readjusted accordingly, with credit taken in the amount of compensation 
paid prior to such date. Refund of compensation shall not be required if 
the amount of compensation paid in any such case, otherwise than through 
fraud, mispresentation, or mistake, and prior to July 15, 1946, exceeds 
the amount provided for under this paragraph; and such case shall be 
deemed compromised and paid under 5 U.S.C. 8137.
    (b) The total aggregate compensation payable in any case under 
paragraph (a) of this section, for injury or death or both, shall not 
exceed the sum of $4,000, exclusive of medical costs. The maximum 
monthly rate of compensation in any such case shall not exceed the sum 
of $50.
    (c) The benefit amounts payable under the provisions of the 
Commonwealth Employees' Compensation Act of 1930-1964, Australia, shall 
apply as of January 1, 1962, in Australia, as the exclusive measure of 
compensation in cases of injury (or death from injury) according on and 
after January 1, 1962, and shall be applied retrospectively in

[[Page 73]]

all such cases, occurring on and after such date: Provided, That the 
compensation payable under the provisions of this paragraph shall in no 
event exceed that payable under the Federal Employees' Compensation Act.

(5 U.S.C. 8137, 8138, 8145, 8149); Reorganization Plan No. 19 of 1950 
(64 Stat. 1271, 3 CFR 1949-1953 Comp., p. 1010); and General Order No. 
46 (Rev.) (24 FR 8472))



Secs. 25.23--25.24  [Reserved]



Sec. 25.25  Republic of Korea.

    (a) Modified special schedule of compensation. The special schedule 
of compensation established in subpart B of this part shall apply, with 
the modifications or additions specified in paragraphs (b) through (k) 
of this section in the Republic of Korea, to injury or death occurring 
on or after July 1, 1968, with the following limitations:
    (1) Temporary disability. Benefits for payments accruing on and 
after July 1, 1969, for injuries causing temporary disability and which 
occurred on and after July 1, 1968, shall be payable at the rates 
specified in the special schedule as modified in this section.
    (2) Permanent disability and death. Benefits for injuries occurring 
on and after July 1, 1968, which cause permanent disability or death 
shall be payable at rates specified in the special schedule as modified 
in this section for (i) all awards not paid in full before July 1, 1969, 
and (ii) any award paid in full prior to July 1, 1969: Provided, That 
application for adjustment is made, and the adjustment will result in 
additional benefits of at least $10. (In the case of injury or death 
occurring on or after December 1, 1954, and prior to July 1, 1968, the 
special schedule as modified in this section may be applied to 
prospective awards for permanent disability or death: Provided, That the 
monthly and aggregate maximum provisions in effect at the time of injury 
or death shall prevail. These maxima are $50 and $4,000, respectively.)
    (b) Death benefits. 400 weeks' compensation at two-thirds of the 
weekly wage rate, shared equally by the eligible survivors in the same 
class.
    (c) Death beneficiaries. Benefits are payable to survivor or 
survivors in the following order of priority:
    (1) Spouse.
    (2) Unmarried children who were supported by or lived with the 
deceased employee at the time of death.
    (3) Parents who were supported by or lived with the deceased 
employee at the time of death.
    (4) Unmarried grandchildren who were supported by or lived with the 
deceased employee at the time of death.
    (5) Grandparents who were supported by or lived with the deceased 
employee at the time of death.
    (6) Unmarried brothers and sisters who were supported by or lived 
with the deceased employee at the time of death.
    (d) Burial allowance. 14 weeks' wages or $400, whichever is less, 
payable to the eligible survivor(s), regardless of the actual expense. 
If there is no eligible survivor, actual burial expenses may be paid or 
reimbursed, in an amount not to exceed what would be paid to an eligible 
survivor.
    (e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
    (f) Permanent partial disability. Where applicable, the compensation 
provided in paragraphs (c)(1) through (19) of the special schedule, 
subject to an aggregate limitation of 400 weeks' compensation. In all 
other cases, that proportion of the compensation provided for permanent 
total disability (paragraph (e) of this section) which is equivalent to 
the degree or percentage of physical impairment caused by the 
disability.
    (g) Temporary partial disability. Two- thirds of the weekly loss of 
wage-earning capacity.
    (h) Compensation period of temporary disability. Compensation for 
temporary disability is payable for a maximum period of 80 weeks.
    (i) Maximum compensation. The total aggregate compensation payable 
in any case, for injury or death or both, shall not exceed $8,000, 
exclusive of medical costs and burial allowance. The weekly rate of 
compensation for disability or death shall not exceed $35.
    (j) Method of payment. Only compensation for temporary disability 
shall be payable periodically. Compensation for permanent disability and 
death shall be payable in full at the

[[Page 74]]

time extent of entitlement is established.
    (k) Exceptions. The Director may in his or her discretion make 
exception to these regulations by:
    (1) Reapportioning death benefits, for the sake of equity.
    (2) Excluding from consideration potential death beneficiaries who 
are not available to receive payment.
    (3) Paying compensation for permanent disability or death on a 
periodic basis, where this method of payment is considered to be in the 
best interest of the beneficiary.



Sec. 25.26  Japanese seamen.

    (a) The special schedule of compensation established by subpart B of 
this part shall apply, with the modifications or additions specified in 
paragraphs (b) through (i) of this section, as of November 1, 1971, to 
injuries sustained outside the continental United States or Canada by 
direct-hire Japanese seamen who are neither citizens nor residents of 
the United States or Canada and who are employed by the Military Sealift 
Command in Japan.
    (b) Temporary total disability. Weekly compensation shall be paid at 
75 percent of the weekly wage rate.
    (c) Temporary partial disability. Weekly compensation shall be paid 
at 75 percent of the weekly loss in wage- earning capacity.
    (d) Permanent total disability. Compensation shall be paid in a lump 
sum equivalent to 360 weeks' wages.
    (e) Permanent partial disability. (1) The provisions of Sec. 25.11 
shall apply to the types of permanent partial disability enumerated in 
paragraphs (c)(1) through (19) of that section, Provided, That weekly 
compensation shall be paid at 75 percent of the weekly wage rate, and 
Further provided, That the number of weeks allowed for specified losses 
shall be changed as follows:
    (i) Arm lost, 312 weeks.
    (ii) Leg lost, 288 weeks.
    (iii) Hand lost, 244 weeks.
    (iv) Foot lost, 205 weeks.
    (v) Eye lost, 160 weeks.
    (vi) Thumb lost, 75 weeks.
    (vii) First finger lost, 46 weeks.
    (viii) Second finger lost, 30 weeks.
    (ix) Third finger lost, 25 weeks.
    (x) Fourth finger lost, 15 weeks.
    (xi) Great toe lost, 38 weeks.
    (xii) Toe, other than great toe lost, 16 weeks.
    (2) In all other cases, that proportion of the compensation provided 
for permanent total disability (paragraph (d) of the section) which is 
equivalent to the degree or percentage of physical impairment caused by 
the injury.
    (f) Death. If there are two or more eligible survivors, compensation 
equivalent to 360 weeks' wages shall be paid to the survivors, share and 
share alike. If there is only one eligible survivor, compensation 
equivalent to 300 weeks' wages shall be paid. The following survivors 
are eligible for death benefits:
    (1) Spouse who lived with or was dependent upon the employee.
    (2) Unmarried children under 21 who lived with or were dependent 
upon the employee.
    (3) Adult children who were dependent upon the employee by reason of 
physical or mental disability.
    (4) Dependent parents, grandparents and grandchildren.
    (g) Burial allowance. $1,000 payable to the eligible survivor(s), 
regardless of actual expenses. If there are no eligible survivors, 
actual expenses may be paid or reimbursed, up to $1,000.
    (h) Method of payment. Only compensation for temporary disability 
shall be payable periodically, as entitlement accrues. Compensation for 
permanent disability and death shall be payable in a lump sum.
    (i) Maxima. In all cases (temporary disability, permanent 
disability, and death) the maximum weekly benefit shall be $130. Also, 
except in cases of permanent total disability and death, the aggregate 
maximum compensation payable for any injury shall be $40,000.
    (j) Prior injury. In cases where injury or death occurred prior to 
November 1, 1971, benefits will be paid in accord with regulations 
previously promulgated.



Sec. 25.27  Territory of Guam (nonresident aliens).

    (a) The special schedule of compensation established by subpart B of 
this part shall apply, with the modifications or additions specified in 
paragraphs (b) through (k) of this section, to injury or death occurring 
on or after

[[Page 75]]

July 1, 1971, in the Territory of Guam to nonresident alien employees 
recruited in foreign countries for employment by the military 
departments in the Territory of Guam. However, the Director may, in his 
or her discretion, adopt the benefit features and provisions of local 
workers' compensation law as provided in subpart A of this part, or 
substitute the special schedule in subpart B of this part or other 
modifications of the special schedule in this subpart C, if such 
adoption or substitution would be to the advantage of the employee or 
his beneficiary. This schedule shall not apply to any employee who 
becomes a permanent resident in the Territory of Guam prior to the date 
of his or her injury or death.
    (b) Death benefits. 400 weeks' compensation at two-thirds of the 
weekly wage rate, shared equally by the eligible survivors in the same 
class.
    (c) Death beneficiaries. Beneficiaries of death benefits shall be 
determined in accordance with the laws or customs of the country of 
recruitment.
    (d) Burial allowance. 14 weeks' wages or $400, whichever is less, 
payable to the eligible survivor(s), regardless of the actual expense. 
If there is no eligible survivor, actual burial expenses may be paid or 
reimbursed, in an amount not to exceed what would be paid to an eligible 
survivor.
    (e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
    (f) Permanent partial disability. Where applicable, the compensation 
provided in paragraphs (1) through (19) of paragraph (c) of Sec. 25.11, 
subject to an aggregate limitation of 400 weeks' compensation. In all 
other cases, that proportion of the compensation provided for permanent 
total disability (paragraph (e) of this section) which is equivalent to 
the degree or percentage of physical impairment caused by the 
disability.
    (g) Temporary partial disability. Two-thirds of the weekly loss of 
wage- earning capacity.
    (h) Compensation period for temporary disability. Compensation for 
temporary disability is payable for a maximum period of 80 weeks.
    (i) Maximum compensation. The total aggregate compensation payable 
in any case, for injury or death or both, shall not exceed $24,000, 
exclusive of medical costs and burial allowance. The weekly rate of 
compensation for disability or death shall not exceed $70.
    (j) Method of payment. Compensation for temporary disability shall 
be payable periodically. Compensation for permanent disability and death 
shall be payable in full at the time extent of entitlement is 
established.
    (k) Exceptions. The Director may in his or her discretion make 
exception to the regulations in this section by:
    (1) Reapportioning death benefits for the sake of equity.
    (2) Excluding from consideration potential beneficiaries of a 
deceased employee who are not available to receive payment.
    (3) Paying compensation for permanent disability or death on a 
periodic basis, where this method of payment is considered to be in the 
best interest of the employee or his beneficiary(ies).

(5 U.S.C. 8137, 8145, 8149)


[[Page 76]]





                       SUBCHAPTERS C--E [RESERVED]





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





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




                      Subpart A--General Provisions

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

                  Subpart B--Reimbursement of Carriers

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

         Subpart C--Compensation for Injury, Disability or Death

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

                      Subpart D--Detention Benefits

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

                   Subpart E--Miscellaneous Provisions

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

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

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



                      Subpart A--General Provisions



Sec. 61.1  Statutory provisions

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

[[Page 77]]

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



Sec. 61.2  Administration of the Act and this chapter.

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



Sec. 61.3  Purpose and scope of this part.

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



Sec. 61.4  Definitions and use of terms.

    For the purpose of this part--
    (a) The Act means the War Hazards Compensation Act, 42 U.S.C. 1701 
et seq., as amended.
    (b) Office or OWCP means the Office of Workers' Compensation 
Programs,

[[Page 78]]

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



                  Subpart B--Reimbursement of Carriers



Sec. 61.100  General reimbursement provisions.

    (a) The Office shall reimburse any carrier that pays benefits under 
the Defense Base Act or other applicable workers' compensation law due 
to the injury, disability or death of any person specified in 
Sec. 61.1(a), if the injury or death for which the benefits are paid 
arose from a war-risk hazard. The amount to be reimbursed includes 
disability and death payments, funeral and burial expenses, medical 
expenses, and the reasonable and necessary

[[Page 79]]

claims expense incurred in processing the request.
    (b) The Office shall not provide reimbursement in any case in which 
an additional premium for war-risk hazard was charged, or in which the 
carrier has been reimbursed, paid, or compensated for the loss for which 
reimbursement is requested.
    (c) Reimbursement under this section with respect to benefits shall 
be limited to the amounts which will discharge the liability of the 
carrier under the applicable workers' compensation law.



Sec. 61.101  Filing a request for reimbursement.

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



Sec. 61.102  Disposition of reimbursement requests.

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

[[Page 80]]

party, unless the financial condition of the third party or the facts 
and circumstances surrounding the liability justify the failure;
    (2) Failed to take reasonable measures to contest, reduce, or 
terminate its liability by appropriate available procedure under 
workers' compensation law or otherwise; or
    (3) Failed to make reasonable and adequate investigation or injury 
as to the right of any person to any benefit or payment; or
    (4) Failed to avoid augmentation of liability by reason of delay in 
recognizing or discharging a compensation claimant's right to benefits.



Sec. 61.103  Examination of records of carrier.

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



Sec. 61.104  Reimbursement of claims expense.

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



Sec. 61.105  Direct payment of benefits.

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

[[Page 81]]

of completion of adjudicatory processes or for continuation of payment 
of benefits.



         Subpart C--Compensation for Injury, Disability or Death



Sec. 61.200  Entitlement to benefits.

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



Sec. 61.201  Filing of notice and claim.

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



Sec. 61.202  Time limitations for filing notice and claim.

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



Sec. 61.203  Limitations on and deductions from benefits.

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

[[Page 82]]

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



Sec. 61.204  Furnishing of medical treatment.

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



Sec. 61.205  Burial expense.

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



Sec. 61.206  Reports by employees and dependents.

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



                      Subpart D--Detention Benefits



Sec. 61.300  Payment of detention benefits.

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

[[Page 83]]

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



Sec. 61.301  Filing a claim for detention benefits.

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



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

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



Sec. 61.303  Determination of detention status.

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

[[Page 84]]



Sec. 61.304  Limitations on and deductions from detention benefits.

    (a) In determining benefits for detention, the Office shall not 
apply the minimum limits found in sections 6(b) and 9(e) of the 
Longshore and Harbor Workers' Compensation Act.
    (b) If any employee or dependent receives or claims wages, payments 
in lieu of wages, or insurance benefits for the period of detention, and 
the cost of the wages, payments or benefits is provided in whole or in 
part by the United States, the Office shall credit the amount of the 
benefits against any detention payments to which the person is entitled 
under the Act. The Office shall apply credit only where the wages, 
payments, or benefits received are items for which the contractor is 
entitled to reimbursement from the United States, or where they are 
otherwise reimbursable by the United States.



Sec. 61.305  Responsibilities of dependents receiving detention benefits.

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



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

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



Sec. 61.307  Transportation of recovered bodies of missing persons.

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



                   Subpart E--Miscellaneous Provisions



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

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



Sec. 61.401  Confidentiality of records.

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



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

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

[[Page 85]]



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

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



Sec. 61.404  Assignments; creditors.

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

[[Page 86]]



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





PART 71--GENERAL PROVISIONS--Table of Contents




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

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

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



Sec. 71.1  General administrative provisions.

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

[[Page 87]]

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



Sec. 71.2  Computation of benefits.

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



Sec. 71.3  Deductions from benefits.

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



Sec. 71.4  Limitation upon benefits.

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



Sec. 71.5  Payment of benefits.

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



Sec. 71.6  Notice of injury or death.

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

[[Page 88]]



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

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

[[Page 89]]



                  CHAPTER II--RAILROAD RETIREMENT BOARD




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

  Editorial Note: Nomenclature changes affecting chapter II appear at 54 
FR 35874, Aug. 30, 1989, and 55 FR 26430, June 28, 1990.

                  SUBCHAPTER A--GENERAL ADMINISTRATION
Part                                                                Page
200             General administration......................          93
       SUBCHAPTER B--REGULATIONS UNDER THE RAILROAD RETIREMENT ACT
201             Definitions.................................         131
202             Employers under the Act.....................         131
203             Employees under the Act.....................         136
204             Employment relation.........................         138
205             Employee representative.....................         140
209             Railroad employers' reports and 
                    responsibilities........................         142
210             Creditable railroad service.................         146
211             Creditable railroad compensation............         150
212             Military service............................         154
216             Eligibility for an annuity..................         156
217             Application for annuity or lump sum.........         173
218             Annuity beginning and ending dates..........         180
219             Evidence required for payment...............         191
220             Determining disability......................         203
221             Jurisdiction determinations.................         368
222             Family relationships........................         369
225             Primary insurance amount determinations.....         381
226             Computing employee, spouse, and divorced 
                    spouse annuities........................         393
227             Computing supplemental annuities............         406
228             Computation of survivor annuities...........         407
229             Social security overall minimum guarantee...         414
230             Months annuities not payable by reason of 
                    work....................................         427
233             Reduction in the windfall benefit annuity 
                    component...............................         428
234             Lump-sum payments...........................         429
235             Payment of Social Security benefits by the 
                    Railroad Retirement Board...............         437
236--238

[Reserved]

240

[Reserved]

[[Page 90]]

243             Transfer, assignment, or waiver of payments.         438
250

[Reserved]

255             Recovery of overpayments....................         440
258             Hearings before the Board or designated 
                    examiners...............................         446
259             Initial determinations and appeals from 
                    initial determinations with respect to 
                    employer status and employee status.....         449
260             Requests for reconsideration and appeals 
                    within the Board from decisions issued 
                    by the Bureau of Disability and Medicare 
                    Operations, Bureau of Retirement 
                    Benefits, Bureau of Survivor Benefits, 
                    Office of Retirement and Survivor 
                    Programs, and the Bureau of Research and 
                    Employment Accounts.....................         450
261             Administrative finality.....................         460
262

[Reserved]

266             Representative payment......................         463
295             Payments pursuant to court decree or court-
                    approved property settlement............         470
 SUBCHAPTER C--REGULATIONS UNDER THE RAILROAD UNEMPLOYMENT INSURANCE ACT
300             Definitions.................................         476
301             Employers under the Act.....................         476
302             Qualified employee..........................         477
319             Procedure for determining liability for 
                    contributions or repayments of benefits.         479
320             Initial determinations under the Railroad 
                    Unemployment Insurance Act and reviews 
                    of and appeals from such determinations.         482
322             Remuneration................................         490
323             Nongovernmental plans for unemployment or 
                    sickness insurance......................         494
325             Registration for railroad unemployment 
                    benefits................................         496
327             Available for work..........................         500
330             Determination of daily benefit rates........         502
332             Mileage or work restrictions and stand-by or 
                    lay-over rules..........................         505
335             Sickness benefits...........................         507
336             Duration of normal and extended benefits....         512
337

[Reserved]

340             Recovery of benefits........................         515
341             Statutory lien where sickness benefits paid.         521
344

[Reserved]

345             Employers' contributions and contribution 
                    reports.................................         524
346             Railroad hiring.............................         540

[[Page 91]]

348             Representative payment......................         541
                  SUBCHAPTER D--GARNISHMENT OF BENEFITS
350             Garnishment of benefits paid under the 
                    Railroad Retirement Act, the Railroad 
                    Unemployment Insurance Act, and under 
                    any other act administered by the Board.         542
     SUBCHAPTER E--ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS OR 
                               STATEMENTS
355             Regulations under the Program Fraud Civil 
                    Remedies Act of 1986....................         545
356             Civil monetary penalty inflation adjustment.         560
      SUBCHAPTER F--INTERNAL ADMINISTRATION, POLICY AND PROCEDURES
360

[Reserved]

361             Recovery of debts owed to the United States 
                    Government by Government employees......         561
362             Employees' personal property claims.........         566
363             Garnishment of remuneration of Board 
                    personnel...............................         569
364             Use of penalty mail to assist in the 
                    location and recovery of missing 
                    children................................         571
365             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Railroad 
                    Retirement Board........................         572
366             Collection of debts by Federal tax refund 
                    offset..................................         578
367             Recovery of debts owed to the United States 
                    Government by administrative offset.....         579
368             Prohibition of cigarette sales to minors....         582
                        SUBCHAPTER G  [RESERVED]
                   SUBCHAPTER H--EMERGENCY REGULATIONS
375             Plan of operation during a national 
                    emergency...............................         583
                        SUBCHAPTER I  [RESERVED]

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

[[Page 93]]



                  SUBCHAPTER A--GENERAL ADMINISTRATION





PART 200--GENERAL ADMINISTRATION--Table of Contents




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

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



Sec. 200.1  Designation of central and field organization.

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

[[Page 94]]

operations under the Railroad Unemployment Insurance Act, as well as 
certain employee protection laws, and the Associate Executive Director 
for Field Service is responsible for all district and regional office 
operations. There is also an Associate Executive Director for Fiscal 
Operations and an Associate Executive Director for Data Processing.
    (3) Further, the following offices provide administrative and other 
services in support of Board Operations: Office of Equal Employment 
Opportunity, Washington Legislative/Liaison Office, Office of Planning, 
Office of Public Affairs and Bureau of Quality Assurance.
    (c) Office of Inspector General. The Railroad Retirement Solvency 
Act of 1983 established the Office of Inspector General within the Board 
to be governed by the Inspector General Act of 1978. As structured, the 
Inspector General reports directly to the Chairman. The Office of 
Inspector General is responsible for policy direction and conduct of 
audit, inspection, and investigation activities relating to program and 
operations of the Board; and maintaining liaison with other law 
enforcement agencies, the Department of Justice, and United States 
Attorneys on all matters relating to the detection and prevention of 
fraud and abuse. The Inspector General reports semi-annually to the 
Congress through the Chairman concerning fraud, abuses, other serious 
problems, and deficiencies of agency programs and operations; recommends 
corrective action; and, reports on progress made in implementing these 
actions.
[52 FR 11010, Apr. 6, 1987]



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

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

[[Page 95]]

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

[[Page 96]]

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

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

[[Page 97]]

member, or any other party aggrieved by a final decision pursuant to the 
Railroad Unemployment Insurance Act, may, only after all administrative 
remedies within the Board will have been availed of and exhausted, 
obtain a review of such final decision of the Board by filing a petition 
for review within 90 days after the mailing of notice of such decision 
to the claimant or other party, or within such further time as the Board 
may allow, in the United States court of appeals for the circuit in 
which the claimant or other party resides or will have had his principal 
place of business or principal executive office, or in the United States 
Court of Appeals for the Seventh Circuit, or in the United States Court 
of Appeals for the District of Columbia Circuit.
    (c) Current compensation and service records. Current compensation 
and service records are maintained by the Bureau of Research and 
Employment Accounts. These records are obtained from reports made 
periodically on either a quarterly or annual basis by employers and 
employee representatives. General instructions in this regard may be 
found in part 250 of this chapter. Special instructions to employers and 
employee representatives are issued from time to time by the Director of 
Research and Employment Accounts.
    (d) Collection of contributions. The Office of Budget and Fiscal 
Operations acts as the collecting agency of the Board in receiving 
contributions due under the Railroad Unemployment Insurance Act. 
Contributions are, with some few exceptions, due quarterly and with the 
payment, the employer must file a report, Form DC-1, Employers Quarterly 
or Annual Report of Contributions under the Railroad Unemployment 
Insurance Act. (For further details see part 345 of this chapter.)
    (e) Employment service. Employers needing workers may avail 
themselves of the Board's employment service by making requests of any 
field office for referrals, in writing, on forms provided by the Board, 
or by telephone.
[15 FR 6752, Oct. 6, 1950, as amended at 21 FR 4808, June 29, 1956; 
Board Order 62-115, 27 FR 9254, Sept. 19, 1962; Board Order 67-67, 32 FR 
9064, June 27, 1967; 41 FR 22557, June 4, 1976. Redesignated at 52 FR 
11010, Apr. 6, 1987, as amended at 55 FR 26430, June 28, 1990]



Sec. 200.3  Designation of forms and display of assigned OMB control numbers.

    (a) Designation of forms and instructions. (1) This paragraph lists 
the public reporting forms prescribed by the Railroad Retirement Board 
under the authority of the Railroad Retirement Act, the Railroad 
Unemployment Insurance Act and certain other Acts. The Board uses these 
reporting forms to obtain information from the public that it needs in 
administering these Acts. The public reporting forms have been organized 
into the following groups: applications for basic benefit programs and 
related forms; health insurance applications and related forms; forms 
for appeals, withdrawals, retention of benefits, substitution of payees 
and other actions subsequent to applying for a benefit; and, forms 
related to the crediting and maintenance of earnings records.
    (2) Applications for basic benefits and related forms. The following 
forms are prescribed for use by railroad employees, members of their 
families and certain other individuals in applying for benefits under 
the Railroad Retirement Act and the Railroad Unemployment Insurance Act; 
these forms are also prescribed for use by certain third parties to 
provide information in support of an application for benefits.
    (i) Application forms.

AA-1--Application for Employee Annuity. Used in applying for an employee 
annuity. Information collected includes: Applicant's personally 
identifying data, earnings, family history, work history, military 
service, railroad pensions, and benefits from other government agencies.
AA-1b--Application for Recomputation of Employee Annuity Under the 
Railroad Retirement Act. Used to obtain information from an employee who 
performed additional service in the railroad industry since his or

[[Page 98]]

her annuity began. The information will be used to recompute such 
annuity.
AA-1d--Application for Determination of Employee Disability. Used in 
applying for an employee disability annuity and in establishing a period 
of disability and early Medicare coverage. Information collected 
includes: Applicant's personally identifying data, medical condition, 
medical care, daily activities, education and training, work history, 
current earnings, and benefits from other government agencies.
AA-3--Application for Spouse/Divorced Spouse Annuity. Used in applying 
for a spouse's or divorced spouse's annuity. Information collected 
includes: Applicant's personally identifying data, earnings, family 
history, work history, and benefits from other government agencies.
AA-17--Application for Widow(er)'s Annuity. Used in applying for an 
insurance annuity and a lump-sum payment by the widow(er), remarried 
widow(er), or the surviving divorced spouse. Information collected 
includes: Applicant's personally identifying data, family history, 
employment information, benefits from other government agencies, and the 
work history and military service of the deceased spouse.
AA-17b--Application for Determination of Widow(er) Disability. Used in 
applying for a disability annuity and for early Medicare coverage by a 
disabled widow(er), a disabled widow(er) who has remarried, and a 
disabled divorced wife who has survived the employee. Information 
collected includes: The applicant's personally identifying data, medical 
condition, medical care, daily activities, education and training, work 
history, current earnings, and benefits from other government agencies.
AA-18--Application for Mother's/Father's and Child's Annuity. Used in 
applying for insurance annuity benefits by the following survivors--the 
mother or father, the remarried mother or father, or the surviving 
divorced spouse--on their own behalf and on behalf of the child of the 
deceased employee. Information collected includes: Applicant's 
personally identifying data, family history, work history, earnings, 
benefits from the other government agencies, and the deceased employee's 
work history and military service.
AA-19--Application for Child's Annuity. Used in applying, on behalf of a 
child of a deceased employee, for an insurance annuity and any insurance 
benefits payable under title II of the Social Security Act. Information 
collected includes: Applicant's personally identifying data, family 
history, work history, earnings, benefits from other government 
agencies, and deceased employee's work history and military service.
AA-19a--Application for Determination of Child Disability. Used in 
applying for an annuity based upon the child's disability and for early 
Medicare coverage by a spouse or the disabled child himself or herself. 
Information collected includes: Applicant's personally identifying data, 
medical condition, medical care, daily activities, education and 
training, work history, earnings, and benefits from other government 
agencies.
AA-19s--Application for Child's Annuity/Full-Time Student. Used in 
applying for an insurance annuity by a student who is the child of a 
deceased employee. Information collected includes: Applicant's 
personally identifying data, family history, work history, earnings, 
school attendance, benefits from other government agencies, and deceased 
employee's work history and military service.
AA-20--Application for Parent's Annuity. Used by the parent of a 
deceased employee in applying for an insurance annuity and for health 
insurance benefits. Information collected includes: Applicant's 
personally identifying data, family history, work history, earnings, 
benefits from other government agencies, and deceased employee's work 
history and military service.
AA-21--Application for Lump-Sum Death Payment and Annuities Unpaid at 
Death. Used by a surviving relative, a designated beneficiary or a 
funeral director to apply for, as appropriate, a lump-sum benefit or 
annuities due but unpaid at the annuitant's death. Information collected 
includes: Applicant's personally identifying data, burial expense 
information, and the deceased employee's family history, work history 
and military service.
ES-1a--Application for Employment Service. Used by an unemployed 
railroad employee in applying for employment counseling, referral and 
placement assistance services under the Railroad Unemployment Insurance 
Act; also used to enroll the names of separated railroad employees on 
the central register.
SI-1a--Application for Sickness Benefits. Used by a railroad employee in 
applying for sickness benefits under the Railroad Unemployment Insurance 
Act. Information collected will determine eligibility for benefits and 
the signed form will operate as a waiver for release of medical 
information.
SI-2--Application and Statement of Sickness/Pregnancy, Miscarriage or 
Childbirth. Used by a female railroad employee in applying under the 
Railroad Unemployment Insurance Act for sickness benefits based on 
pregnancy, miscarriage or childbirth.
UI-1 (ES-1)--Application for Unemployment Benefits & Employment Service. 
Used by an unemployed railroad employee in applying for unemployment 
insurance benefits and employment referral services under the Railroad 
Unemployment Insurance Act.

    (ii) Related forms.

[[Page 99]]

AA-2P(R)--Record of Employee's Prior Service (Retirement). Used by an 
employer to inform the Board of an employee's pre-1937 creditable 
service and compensation.
AA-2P(U)--Record of Employee's Prior Service (Unemployment). Used by an 
employer to inform the Board of an employee's pre-1937 creditable 
service and compensation for railroad unemployment insurance purposes.
AA-4--Self-Employment Questionnaire. Used by an employee or the 
employee's spouse who has applied for a retirement annuity in order to 
determine whether any self-employment is exempt from ``last person 
service'' employment restrictions.
AA-11a--Designation or Change of Beneficiary for Residual Lump Sum. Used 
by an employee to designate the beneficiary or beneficiaries who would 
receive the residual lump-sum.
AA-15--Employee's Statement of Service Performed Before January 1, 1937, 
to Employers Under the Railroad Retirement Act. Used by an employee 
claiming creditable service prior to January 1, 1973 to assist the 
employer in locating the employee's service and compensation record. 
(The Board's records do not reflect service prior to 1937.)
ES-2--Supplemental Information for Central Register (Card). Used to 
update the central register of separated railroad employees.
ES-20a--Applicant's Referral Report. Used to refer a railroad employee 
or a railroad unemployment benefit claimant to a prospective employer. 
If unemployed, the claimant is informed that failure without good cause 
to comply with instructions or to accept suitable work available will 
prevent payment of benefits for 30 days.
ES-20b--Employment Referral Card. Used by a prospective employer to 
verify that the referred railroad worker: (1) Appeared for the interview 
and (2) was considered for the position.
ES-20c--Notice of Job Opening. Used to advise unemployed railroad 
employees of job opportunities for which they may apply or decline to 
apply without being penalized by a 30 day disqualification.
ES-21--Referral to State Employment Service. Used to refer a railroad 
unemployment insurance claimant to the State Employment Service for 
possible job openings. The claimant is informed that failure without 
good cause to comply with instructions to accept suitable work will 
prevent payment of benefits for 30 days.
ES-21c--Report on Placement or Refusal or Referral or Job Offer to 
Railroad Retirement Board. Used by a State Employment Service to verify 
whether the referred claimant: (1) Did appear for an interview and (2) 
was considered for job openings.
ES-22--Unemployment Claims Agent's Placement Report. Used by a railroad 
unemployment claims agent to report results of efforts to place an 
unemployed railroad employee in another job.
G-3EMP--Report of Medical Condition by Employer. Used to request 
information from a railroad employer about a disability applicant's 
medical condition and disqualification for work.
G-45--Supplement to Claim of Person Outside the United States. Used to 
obtain supplemental information from a non-U.S. citizen annuity 
applicant whose annuity may be subject to the income tax withholding 
provisions of the U.S. Internal Revenue Code; used to obtain information 
from a beneficiary who has informed the Board or a change in country of 
residence which may subject him or her to such tax withholding 
provisions.
G-86--Certification in Support of Employer Service for Which No Records 
Are Available. Used by an employee to reconstruct pre-1937 creditable 
service and compensation when the employer's records are incomplete or 
unavailable.
G-88--Certificate of Termination of Service and Relinquishment of 
Rights. Used to obtain evidence that an applicant for a retirement 
annuity has relinquished all rights to return to employer service.
G-88p--Employer's Supplemental Pension Report. Used to obtain pension 
data from an employer to correct the supplemental annuity amount payable 
to an annuitant or annuity applicant.
G-88r--Request for Information About Employer Pension Plans. Used to 
obtain information from an employer about any private pension plans that 
it may have established.
G-118--Statement Regarding Adoption. Used by a surviving child through 
his or her representative, to provide information supporting an 
equitable adoption; used by an employee or a spouse trying to increase 
an annuity by claiming an equitably adopted child; and, used by a third 
party or an institution to provide evidence of an equitable adoption in 
support of the claim of a surviving child, employee or spouse.
G-124--Statement of Marital Relationship. Used by a spouse to provide 
information in support of a marital relationship not solemnized by a 
civil or religious ceremony.
G-124a--Statement Regarding Marriage. Used by an individual who has 
knowledge of a marital relationship not solemnized by a civil or 
religious ceremony to provide information in support of that 
relationship.
G-131--Authorization of Payment and Release of All Claims to a Death 
Benefit or Accrued Annuity Payment. Used by a non-spouse survivor of a 
deceased employee to assign rights as a beneficiary to another 
beneficiary.
G-134--Statement Regarding Contributions and Support. Used by an 
applicant who, in order to qualify for benefits, must show receipt of 
one-half support from the employee at

[[Page 100]]

the time of the employee's retirement, period of disability onset or 
death. Among these applicants are: a parent of a deceased employee, a 
spouse and a widow(er).
G-204--Verification of Worker's Compensation/Public Disability Benefit 
Information. Used to obtain, from a public agency paying an applicant's 
worker's compensation or public disability benefits, verification of the 
information provided by an applicant.
G-208--Public Service Pension Questionnaire. Used to obtain information 
from a spouse or a survivor annuity applicant to determine if the 
annuity is or will be subject to a reduction for a public service 
pension.
G-209--Employee Noncovered Service Questionnaire. Used to obtain 
information from railroad employee annuitants or annuity applicants 
about benefits they either receive or expect to receive based on 
employment not covered under the Railroad Retirement Act or the Social 
Security Act.
G-214--Worker's Compensation and Public Disability Benefit 
Questionnaire. Used to obtain information from an annuity applicant as 
to whether he or she is receiving or will receive worker's compensation 
or public disability benefits. Such benefits may be offset against the 
annuity computation.
G-237--Statement Regarding Marital Status. Used by an applicant or an 
employee if still living to obtain information required in establishing 
the marital status of the employee, spouse or surviving spouse if the 
initial information about the dissolution of the marriage is 
inconclusive.
G-238--Statement of Residence. Used to obtain information to determine 
whether there should be a presumption in favor of the validity of the 
last of several conflicting marriages. This form is completed by an 
individual who was shown by Form G-237 as having some knowledge as to 
where the applicant or former spouse lived after the dissolution of the 
marraige.
G-238a--Statement Regarding Divorce or Annulment. Used to search 
official legal records for copies of divorce decrees or annulments.
G-250--Report of Physical Examination. Used by a disability applicant's 
personal physician to provide requested medical information.
G-251--Vocational Report. Used to obtain a work history and detailed job 
duties from employee and most surviving spouse disability applicants; 
used to establish the employee's regular occupation for purposes of an 
employee occupational disability determination.
G-256--Application for Search of Census Records. Used to obtain census 
records from Bureau of Census to provide evidence of age in support of 
an application for benefits if age is at issue and no better evidence of 
age is available.
G-273--Statement of Death by Funeral Director. Used by a funeral 
director for providing certification of death in lieu of a death 
certificate and for providing information in support of a claim for 
death benefits.
G-273a--Funeral Director's Statement of Burial Charges. Used by a 
funeral director in connection with an application by a survivor (other 
than the surviving spouse who was living in the same household with the 
annuitant at the time of death) authorizing direct payment of the lump-
sum death payment to the funeral director.
G-315--Student Questionnaire. Used in seasonal monitoring and to obtain 
information from a student to verify his or her status with respect to 
(1) Full time enrollment, (2) marriage, (3) age, (4) employment, (5) 
social security benefits, and (6) earned income.
G-315a--Statement by School Official of Student's Full Time Attendance. 
Used to obtain information from a school official to verify the full 
time attendance of a student beneficiary.
G-318--Statement of Spouse of Employee Annuitant. Used to obtain 
information from a railroad employee's spouse to determine whether such 
spouse is eligible for Railroad Retirement Act benefits under the 
overall minimum guaranty provision.
G-319--Employee Annuitant's Statement Regarding Family and Earnings. 
Used to obtain information from a railroad employee about child(ren), 
earnings, and receipt of social security benefits to determine whether 
any student-child(ren) are eligible for Railroad Retirement Act benefits 
under the overall minimum guaranty provision.
G-320--Statement by Employee Annuitant Regarding Student Age 18-19. Used 
to obtain information from a railroad employee about the employee's 
child(ren)'s school attendance, earnings, and social security benefits.
G-346--Employee's Certification. Used in determining whether there was a 
legal impediment to the marriage of the spouse or former spouse of a 
railroad employee.
G-423--Financial Disclosure Statement. Used to obtain financial 
information from an overpaid annuitant or claimant who is requesting 
that the Board waive its right to recover the overpayment.
G-440--Annual and Quarterly Report Indication/Specification Sheet. Used 
by an employer to transmit reports of compensation.
G-476c--Report of Former Spouse-Annuitant. Used in determining the 
eligibility of a spouse annuitant or divorced spouse annuitant for an 
appropriate survivor annuity upon death of the employee. Information 
collected includes: Applicant's personally identifying information, 
recent work history, benefits from other government agencies, and 
identification of other family

[[Page 101]]

member(s) possibly eligible for survivor benefits.
ID-4k--Notification to Employer That a Current or Former Employee Has 
Applied for Unemployment Benefits. Used to notify a railroad employer 
that an employee has filed an unemployment compensation claim; used to 
grant such employer the opportunity to rebut the employee's statements 
as to current unemployment, reasons for current unemployment, date last 
worked, and/or nonpayment of vacation or other such pay.
ID-4L--Notification to Employer That a Current or Former Employee Has 
Applied for Sickness Benefits. Used to notify a railroad employer that 
an employee has filed a claim for sickness benefits; used to grant such 
employer the opportunity to rebut the employee's statements as to 
current sickness or injury, date last worked or returned to work, 
nonreceipt of a personal injury settlement or judgment for the infirmity 
which has precluded work, and/or non-receipt of wages or salary or 
benefits such as vacation or sick pay while not working.
ID-5i--Letter to Non-Railroad Employers on Employment and Earnings of a 
Claimant. Used to obtain information from a non-railroad employer about 
work performed during the period for which unemployment benefits were 
claimed.
ID-5r(SUP)--Report of Employees Paid RUIA Benefits for Each Day in Month 
Reported as a Creditable Month of Service. Used to obtain information 
from a railroad employee about compensation credited to an employee 
during the period for which either unemployment or sickness benefits 
were claimed.
ID-7h--Non-Entitlement to Sickness Benefits and Information on 
Unemployment Benefits. Used to notify a claimant that if he or she is 
unable to work for a longer period of time, he or she needs to have a 
doctor furnish additional medical information.
ID-11a--Notice of Late Filing for Sickness Benefits. Used to obtain 
information from an employee filing late for sickness benefits to 
determine whether the circumstances justify payment of benefits.
ID-28a(1)--Statement in Lieu of an Application for Sickness Benefits. 
Used by a survivor applying for sickness benefits for which the employee 
might have been eligible but for which no application had been filed.
ID-30k(1)--Supplemental Information on Injury or Illness. Used as a 
follow-up in obtaining information about the status of any personal 
injury claim based on the injury for which sickness benefits were paid.
RB-5--Your Duties As Representative Payee. Used to inform a substituted 
or representative payee of his or her recordkeeping duties with respect 
to the benefit payments he or she is receiving on behalf of an 
incompetent or incapacitated annuitant.
RL-11b--Request for Hospital Medical Records. Used to obtain copies of 
medical records from a private hospital when a disability applicant 
indicates that he or she received care from that hospital; used to 
provide that hospital with the applicant's written consent to disclose 
such information.
RL-11d--Request for State Agency's Medical Information. Used to obtain 
copies of medical reports and other information from a state agency that 
paid worker's compensation or public disability benefits when a 
disability applicant indicates that he or she received such benefits; 
used to provide the agency with the applicant's written consent to 
disclose such information.
RL-12/ID-31a--Contract for Professional Services. Used to request 
specific medical services from a consulting physician; used to provide 
the physician with reporting and reimbursement instructions.
RL-94-F--Survivor Questionnaire. Used to obtain information about the 
survivors or the estate of a deceased railroad employee to determine 
whether and to whom survivor benefits are payable.
RL-231-F--Request to Non-Railroad Employer for Information About 
Annuitant's Work and Earnings. Used to determine whether an annuitant 
has returned to work for ``last person service'' employer (i.e., the 
last employer before retirement of a railroad employee or spouse 
applicant).
RRB-1001--Nonresident Questionnaire. Used to obtain information from a 
non-resident annuitant about the status of his or her citizenship and 
legal residence for purposes of determining the amount of tax that must 
be withheld.
RRB-W4-P--Withholding Certificate for Railroad Retirement Payments. Used 
to obtain information from an annuitant about the amount to be withheld 
from any portion of his or her retirement benefits subject to federal 
income taxation.
SI-1b--Statement of Sickness. Completed by the railroad employee's 
physician to support the employee's claim of being unable to work 
because of illness or injury.
SI-1c--Supplemental Information on Accident and Insurance. Used to 
obtain further information from an employee about the identity of the 
person, company, and/or insurer who may be liable for damages to the 
employee and about the possibility of litigation and/or a settlement.
SI-3--Claim for Sickness Benefits. Used by an employer who has filed for 
sickness to provide information in support of a claim for benefits for a 
particular period, usually 14 days.
SI-5--Report of Payments to Employee Claiming Sickness Benefits Under 
the Railroad Unemployment Insurance Act. Used to obtain information from 
the allegedly liable party about the amount of damages received by a 
railroad employee from a personal injury

[[Page 102]]

settlement or lawsuit or about the amount of an award for a worker's 
compensation or an insurance claim. Form SI-5 is sent with Form ID-30b, 
which serves as a transmittal letter and explains the Board's right of 
reimbursement.
SI-7--Supplemental Doctor's Statement. Used to obtain medical evidence 
needed to supplement the medical information submitted on Form SI-1b, 
Statement of Sickness.
SI-10--Statement of Authority to Act for Employee. Used to determine who 
may act in a representative capacity for an employee when he or she has 
become incapable of signing documents and transacting business in 
connection with obtaining sickness benefits.
SI-62--Claim for Sickness Benefits Due Employee But Not Paid at Death. 
Used by a survivor to claim unpaid sickness benefits for which the 
deceased employee was ineligible.
UI-1e--Pay Rate Report. Used by a claimant for sickness or unemployment 
benefits to provide information on his or her last railroad employment 
and pay rate when such information is not otherwise available from the 
Board's records.
UI-1f--Pay Rate Report. Used by an employer to verify the rate of pay 
reported by an employee.
UI-1g--Employee-Employer Statement of Pay Rate. Used to obtain 
information from both the employee and the employer when the employee 
believes that his or her pay rate was not reported accurately by the 
employer.
UI-3--Claim for Unemployment Benefits. Used by a claimant for 
unemployment benefits to provide information in support of claimed days 
of unemployment during a 14-day registration period.
UI-9--Applicant's Statement of Employment and Wages. Used by a claimant 
for unemployment or sickness benefits if his or her current service and 
compensation either have not yet been reported or have been 
underreported to the Board.
UI-13--Notice of Payment of Separation Allowance. Used by an employer to 
provide information about a former employee's separation from service.
UI-23--Claimant's Statement of Service for Railroad Unemployment 
Insurance Benefits. Used by a claimant for unemployment or sickness 
benefits to establish whether he or she has sufficient service to 
qualify for extended or accelerated benefits.
UI-35--Field Office Record of Claimant Interview. Used to conduct a 
personal interview of a claimant for unemployment benefits at a field 
office or itinerant point.
UI-44--Claim for Credit for Military Service (RUIA Act). Used to obtain 
information from a claimant about military service because such service 
can be used under certain circumstances to extend employment or sickness 
benefits under the Railroad Unemployment Insurance Act.
UI-45--Certification Regarding Rights to Unemployment Benefits. Used by 
a claimant who has voluntarily left work to certify whether he or she 
has rights to benefits under any other unemployment insurance law.
UI-48--Claimant's Statement Regarding Benefit Claims for Days on Which 
He Worked. Used to obtain the claimant's explanation for claiming 
benefits for days on which he or she was apparently employed.
UI-54--Unemployment Claims Agent's Statement Regarding Benefit Claims 
for Days on Which a Claimant Worked. Used to obtain information from an 
unemployment claims agent concerning a claimant's alleged employment on 
days claimed as days of unemployment.
UI-62--Canadian Unemployment and Sickness Benefit Information. Used to 
obtain the Canadian social insurance number from a claimant for 
unemployment or sickness benefits when a claimant's address indicates 
Canadian residency.
UI-63--Application for Accrued Benefits Due Under the Railroad 
Unemployment Insurance Act and Unpaid at Death. Used by a survivor to 
apply for the accrued sickness or unemployment benefits unpaid at the 
death of the employee; also used to identify the proper payee.

    (3) Health insurance applications and related forms. The following 
forms are prescribed for use by qualified railroad retirement 
beneficiaries to establish entitlement based on age or disability, and 
to enroll and collect benefits under the Social Security health 
insurance program administered by the Board.
    (i) Application forms.

AA-6--Employee Application for Medicare. Used by an employee not 
entitled to monthly benefits to apply for hospital insurance and 
supplemental medical insurance.
AA-7--Spouse/Divorced Spouse Application for Medicare. Used by the 
spouse or divorced spouse, neither of whom would be otherwise entitled 
to benefits under the Railroad Retirement Act, to apply for hospital and 
supplemental medical insurance.
AA-8--Widow/Widower Application for Medicare. Used by a widow(er) who is 
not otherwise entitled to benefits under the Railroad Retirement Act to 
apply for hospital and supplemental medical insurance.

    (ii) Related forms.

AA-104--Application for Canadian Hospital Benefits Under Medicare--Part 
A. Used by a qualified railroad retirement beneficiary to apply for 
hospital benefits under Part A

[[Page 103]]

of Medicare for services provided in Canada. The information provided is 
verified by the Board's Canadian contractor, currently Blue Cross of 
Ontario, before any benefits are paid.
G-740B--Requests for Medicare Payment by Organizations Which Qualify to 
Receive Payment for Paid Bills. Used by Railroad Hospital Associations 
and Group Prepayment Plans approved to receive reimbursement directly 
from the Medicare carrier for charges that the organization paid for 
services to its members.
G-740s--Patient's Request for Medicare Payment. Used by a qualified 
railroad retirement beneficiary to file a claim for Part B (supplemental 
medical) benefits directly with the Board's carrier.
HCFA-1500--Common Health Insurance Claim Used by Physicians and 
Suppliers. Used by a physician or other supplier of Part B (supplemental 
medical) services to claim payment.

    (4) Forms for post-application actions. The following forms are 
prescribed for use by the public to retain benefits and to request an 
appeal from a denial of benefits, a withdrawal of an application, a 
substitution of a representative payee for an incompetent annuitant, and 
similar actions subsequent to applying for a benefit.

AA-5--Application for Substitution of Payee for Employee, Spouse or 
Survivor Annuitant. Used in applying for a substitute payee to receive 
benefits on behalf of an incompetent annuitant. Information collected 
includes that needed to select a representative or substitute payee who 
will serve in the best interest of the incompetent beneficiary.
G-19--Annual Earnings Monitoring Questionnaire. Used annually by an 
annuitant to report work and earnings since excess income may reduce the 
amount of an annuity and type of work performed may suggest recovery 
from disability.
G-99a--Representative Payee Report. Used in obtaining information from a 
substitute or representative payee to monitor the performance of his or 
her duties with respect to the annuitant.
G-99c--Representative Payee Evaluation Report. Used in obtaining more 
highly detailed information from a substitute or representative payee 
who has failed to respond to Form G-99A, above; also used to determine 
whether the current payee should continue in this capacity.
G-254--Continuing Disability Report. Used to obtain current information 
about a disability beneficiary's work activity and medical condition to 
determine continuing entitlement to disability benefits.
G-478--Statement Regarding Patient's Capability to Manage Payments. Used 
to obtain--from an annuitant's attending physician or from a medical 
officer attached to an institution--medical evidence of such annuitant's 
incapacity to manage his or her personal and financial affairs.
G-718--Request for Termination of Supplementary Medical Insurance. Used 
by a beneficiary to provide the information needed to terminate his or 
her supplemental medical insurance.
G-790--Request for Review of Part B Medicare Claim. Used by a 
beneficiary claiming Part B medical insurance benefits to request 
reconsideration of a benefit determination by the carrier.
G-791--Request for Hearing--Part B Medicare Claim. Used by a qualified 
railroad retirement beneficiary to request a hearing following review 
when an unfavorable redetermination decision has been made on a Part B 
Medicare claim.
HA-1--Appeal Under the Railroad Retirement Act. Used by an applicant or 
an annuitant to appeal to a hearings officer from a denial of a claim 
for retirement or disability benefits, or to appeal from a hearings 
officer's decision to sustain the original denial.
HA-4--Appeal Under the Railroad Unemployment Insurance Act. Used by a 
claimant to appeal both an initial determination, a redetermination and/
or a hearings officer's decision denying railroad unemployment or 
sickness insurance benefits.

    (5) Forms related to maintenance of earnings records. The following 
forms are used by the Railroad Retirement Board, by railroad employers, 
and by other members of the public in connection with the crediting and 
maintenance of earnings records of railroad wage earners.

AA-12--Notice of Death and Statement of Compensation. Used by an 
employer to notify the Board of the date of death of an employee and to 
report any service and compensation not yet reported to the Board; such 
``lag period'' data is used to determine entitlement to, and amount of, 
the annuity payable to the survivors of the employee.
BA-3a--Annual Report of Creditable Compensation. Used by an employer to 
report service months and compensation for each railroad employee 
annually.
BA-4--Report of Creditable Compensation Adjustments. Used by an employer 
to correct service and compensation previously reported, or to report 
service and compensation that was omitted from a previous report.

[[Page 104]]

BA-5--Quarterly Summary Report of Employee Compensation Adjustments. 
Used by an employer to summarize on a quarterly basis monthly 
adjustments to employee compensation.
BA-9--Report of Separation Allowances or Severance Pay Subject to Tier 
II Taxation. Used by an employer to report the amount of separation 
allowances paid.
BA-10--Report of Sick Pay and Miscellaneous Compensation Subject to Tier 
I Tax. Used by an employer to transmit reports of compensation.
DC-1--Employer's Quarterly or Annual Report of Contributions Under the 
Railroad Unemployment Insurance Act. Used by an employer to show and to 
certify periodic contributions to the Railroad Unemployment Insurance 
fund.
DC-2--Employee Representative's Report of Compensation. Used by an 
employee representative to update his or her creditable service and 
compensation record which is the basis for payment of benefits under the 
Railroad Retirement Act.
DC-2a--Employee Representative's Status Report. Used to determine 
whether an individual qualifies for employee representative status.
DC-3--Claim for Abatement or Refund of Contributions, Interest, or 
Penalty. Used by an employer to claim abatement of liability or to claim 
a refund of contributions to the railroad unemployment insurance 
account.
ERR-8--Employment Relation Questionnaire. Used by an employer to inform 
the Board when an employee was not in compensated service on August 29, 
1945 and did not perform six months of service after August 29, 1935 and 
before January 1, 1946.
G-88a--Employer's Supplemental Report of Service and Compensation. Used 
to obtain a report of ``lag service'' and compensation from an employer 
to help determine entitlement to, and the amount of, an annuity.
GL-99--Employee Deemed Service Month Questionnaire. Used to obtain 
information from a railroad employer to determine (1) Whether a claimant 
had an employment relationship with a covered railroad employer or was 
an employee representative during a month worked, and (2) whether such 
claimant can be credited with a deemed month of service.
UI-41--Supplemental Report of Service or Compensation. Used to obtain a 
report of service months and compensation from an employer covering the 
period between the Board's last recorded annual entry and the date when 
the claim for unemployment benefits was filed (i.e., the ``lag 
period'').
UI-41A--Supplemental Report of Compensation. Used to obtain information 
from an employer about an employee's compensation, not exceeding $775 
per month, to determine whether additional benefits may be paid.

    (b) OMB control numbers assigned under the Paperwork Reduction Act. 
(1) This paragraph collects and displays the control numbers assigned to 
information collection requirements of the Railroad Retirement Board 
(the ``Board'') by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1980. Further, such OMB control numbers have 
been appropriately dispersed throughout the Code of Federal Regulations, 
following the pertinent section prescribed by the Board. The Board 
intends that this chapter complies with section 7(b) of chapter 35 of 
title 44 of the United States Code, which requires in relevant part that 
Federal agencies display a current control number assigned by the 
Director of the Office of Management and Budget for each agency 
information collection requirement.
    (2) In addition to being dispersed throughout the substantive text 
of this chapter, the OMB control numbers have also been compiled into 
the following tables of information collection requirements which 
includes the public reporting forms listed in paragraph (a) of this 
section as well as certain other information collection activities. In 
these tables, the Board's public reporting forms are associated with the 
OMB control number assigned to the information collection containing 
each form. The public reporting forms are also associated, where 
applicable, with the section or paragraph of the Code of Federal 
Regulations (CFR) in which they are identified or described.

    Table 1A--Railroad Retirement Board Application and Related Forms   
------------------------------------------------------------------------
                                  20 CFR (unless otherwise      Current 
  Railroad Retirement Board       noted) part, section or         OMB   
           Form No.               subsection where form is      Control 
                                  identified or described         No.   
------------------------------------------------------------------------
AA-1.........................  217.3; 217.5; 217.6; 218.7;     3220-0002
                                218.8.                                  
AA-1d........................  .............................   3220-0002
AA-2P(R).....................  210.7........................   3220-0003
AA-3.........................  216.21; 217.3; 217.6; 218.7;    3220-0042
                                218.8; 219.33; 234.30.                  
AA-4.........................  .............................   3220-0138
AA-5.........................  266.12.......................   3220-0052
AA-6.........................  .............................   3220-0082
AA-7.........................  .............................   3220-0082
AA-8.........................  .............................   3220-0082
AA-11a.......................  234.42.......................   3220-0031
AA-12........................  209.4; 209.5.................   3220-0005
AA-15........................  210.7........................   3220-0003
AA-17........................  216.31; 217.3; 217.6; 218.7;    3220-0030
                                218.8; 219.31.                          

[[Page 105]]

                                                                        
AA-17b.......................  216.31; 218.7; 218.8.........   3220-0030
AA-18........................  216.31; 216.46; 217.3; 217.6;   3220-0030
                                218.7; 218.8; 219.33.                   
AA-19........................  216.47; 217.3; 217.6; 218.7;    3220-0030
                                218.8.                                  
AA-19a.......................  216.47; 218.7; 218.8.........   3220-0030
AA-19s.......................  218.7; 218.8; 219.27.........   3220-0030
AA-20........................  216.71; 217.3; 217.6; 218.7;    3220-0030
                                218.8.                                  
AA-21........................  217.10; 219.34; 234.10;         3220-0031
                                234.30.                                 
AA-104.......................  .............................   3220-0086
BA-3a........................  209.6; 345.4(a)..............   3220-0008
BA-4.........................  209.7; 209.9; 345.4(b).......   3220-0008
BA-4.........................  209.13.......................   3220-0158
BA-5.........................  209.8; 345.4(c)..............   3220-0008
BA-9.........................  209.14.......................   3220-0173
BA-10........................  209.13.......................   3220-0175
DC-1.........................  345.5; 345.7.................   3220-0012
DC-2.........................  209.10.......................   3220-0014
DC-2a........................  209.10.......................   3220-0014
ES-1a........................  325.13.......................   3220-0057
ES-2.........................  325.13.......................   3220-0057
ES-20a.......................  325.13.......................   3220-0057
ES-20b.......................  325.13.......................   3220-0057
ES-20c.......................  325.13.......................   3220-0057
ES-21........................  325.13.......................   3220-0057
ES-21c.......................  325.13.......................   3220-0057
ES-22........................  325.13.......................   3220-0057
G-3EMP.......................  .............................   3220-0038
G-19.........................  .............................   3220-0073
G-45.........................  .............................   3220-0155
G-86.........................  210.7(b).....................   3220-0003
G-88.........................  216.9; 216.21................   3220-0016
G-88a........................  209.5........................   3220-0005
G-88p........................  209.2........................   3220-0089
G-99a........................  266.12.......................   3220-0151
G-99c........................  266.12.......................   3220-0151
G-118........................  219.24.......................   3220-0040
G-124........................  219.16.......................   3220-0021
G-124a.......................  219.16.......................   3220-0021
G-131........................  234.61.......................   3220-0031
G-134........................  219.26; 219.31...............   3220-0099
G-204........................  219.64(c)....................   3220-0002
G-208........................  .............................   3220-0136
G-209........................  .............................   3220-0154
G-214........................  .............................   3220-0002
G-237........................  219.18.......................   3220-0021
G-238........................  219.18.......................   3220-0021
G-238a.......................  219.18.......................   3220-0021
G-250........................  .............................   3220-0038
G-251........................  .............................   3220-0141
G-254........................  .............................   3220-0073
G-256........................  219.11.......................   3220-0106
G-273........................  219.12.......................   3220-0077
G-273a.......................  219.34; 234.13...............   3220-0031
G-315........................  219.27.......................   3220-0123
G-315a.......................  219.27.......................   3220-0123
G-318........................  .............................   3220-0083
G-319........................  .............................   3220-0083
G-320........................  219.27.......................   3220-0083
G-346........................  .............................   3220-0140
G-423........................  .............................   3220-0127
G-476c.......................  216.31.......................   3220-0030
G-478........................  266.12.......................   3220-0052
G-718........................  .............................   3220-0098
G-740B.......................  .............................   3220-0131
G-740s.......................  .............................   3220-0131
G-790........................  .............................   3220-0100
G-791........................  .............................   3220-0100
GL-99........................  .............................   3220-0156
HA-1.........................  260.5(b); 260.9(b)...........   3220-0007
HA-4.........................  320.12; 320.39...............   3220-0020
HCFA-1500....................  .............................   3220-0131
ID-4k........................  .............................   3220-0153
ID-4L........................  .............................   3220-0153
ID-5i........................  322.4........................   3220-0049
ID-5r(SUP)...................  322.4........................   3220-0049
ID-7h........................  335.103......................   3220-0045
ID-11a.......................  335.104(c)...................   3220-0039
ID-28a(1)....................  .............................   3220-0055
ID-30k(1)....................  341.4........................   3220-0036
RB-5.........................  266.12.......................   3220-0052
RL-11b.......................  .............................   3220-0038
RL-11d.......................  .............................   3220-0038
RL-12/ID-31a.................  335.103......................   3220-0124
RL-94-F......................  217.10.......................   3220-0032
RRB-1001.....................  .............................   3220-0145
RRB-W4-P.....................  .............................   3220-0149
SI-1a........................  335.102......................   3220-0039
SI-1b........................  335.103......................   3220-0039
SI-1c........................  341.4........................   3220-0036
SI-2.........................  335.202......................   3220-0039
SI-3.........................  335.104(b)...................   3220-0039
SI-5.........................  341.4........................   3220-0036
SI-7.........................  335.103......................   3220-0045
SI-10........................  335.102......................   3220-0034
SI-62........................  .............................   3220-0055
UI-1(ES)-1...................  325.13.......................   3220-0022
UI-1e........................  330.4........................   3220-0097
UI-1f........................  330.4........................   3220-0097
UI-1g........................  330.4........................   3220-0097
UI-3.........................  325.12(b)....................   3220-0022
UI-9.........................  325.13; 335.102..............   3220-0025
UI-13........................  .............................   3220-0093
UI-23........................  325.13; 335.102..............   3220-0025
UI-35........................  325.13.......................   3220-0057
UI-41........................  .............................   3220-0070
UI-41A.......................  .............................   3220-0070
UI-44........................  .............................   3220-0072
UI-45........................  .............................   3220-0079
UI-48........................  322.4........................   3220-0049
UI-54........................  322.4........................   3220-0049
UI-62........................  .............................   3220-0074
UI-63........................  .............................   3220-0055
------------------------------------------------------------------------


    Table 1B--Other Railroad Retirement Board Information Collection    
  Activities Referenced by Pertinent CFR Section and OMB Control Number 
------------------------------------------------------------------------
                                          20 CFR (unless                
                                      otherwise noted) part,    Current 
     Railroad Retirement Board        section or subsection       OMB   
       Information Collection             where form is         Control 
                                     identified or described      No.   
------------------------------------------------------------------------
Disclosure of Business Information   200.3..................   3220-0150
 Under FOIA.                                                            
Gross Earnings Report..............  209.12.................   3220-0132
Procurement Request................  .......................   3220-0139
Railroad Job Vacancies.............  .......................   3220-0122

[[Page 106]]

                                                                        
Railroad Employer 5 Year             .......................   3220-0008
 Recordkeeping Requirement.                                             
------------------------------------------------------------------------

    (c) Public reporting forms submitted to fewer than ten individuals 
annually and, consequently, not required to display OMB control numbers. 
(1) This paragraph collects and displays the public reporting forms of 
the Railroad Retirement Board which are exempt from displaying Office 
Management and Budget (OMB) control numbers under the Paperwork 
Reduction Act. The Board intends that this paragraph complies with the 
requirements of section 6(c) of chapter 35 of title 44 of the United 
States Code which provide that those information collection requests 
that:
    (i) Require the public to respond under penalty of law or as a 
condition of obtaining a benefit and
    (ii) Are submitted to fewer than ten persons annually must contain a 
statement informing the public that they are exempt from OMB review. As 
a result of being exempt from such review, these information collections 
are also exempt from having to display a control number. The Board 
further intends that this list be a supplement to, rather than a 
substitution for, the statement of exemption that appears on the form.
    (2) Display.

  Table 2--Public Use Forms Exempt From Displaying OMB Control Numbers  
                                                                        
                                                    20 CFR Part, section
                                                    or subsection where 
                                                   form is identified or
                                                         described      
                                                                        
Railroad Retirement Board Farm Number:                                  
    AA-1b........................................            217.5      
    AA-2P(U).....................................            210.7      
    DC-3.........................................            345.13     
    ERR-8........................................            209.2      
    G-88r........................................            209.2      
                                                                        

[52 FR 11011, Apr. 6, 1987, as amended at 56 FR 1573, Jan. 16, 1991]



Sec. 200.4  Availability of information to public.

    (a) The following materials (more particularly described in 
paragraph (d) of this section), with identifying details deleted 
pursuant to paragraph (b) of this section, are available for public 
inspection and copying:
    (1) All final opinions (including concurring and dissenting 
opinions), and all orders made in the adjudication of cases, which have 
precedential effect;
    (2) All statements of policy and interpretations which have been 
adopted by the Board, or by anyone under authority delegated by the 
Board, which have not been published in the Federal Register; and
    (3) Administrative staff manuals and instructions to staff that 
affect any member of the public.
    (b) The identifying details to be deleted shall include, but not be 
limited to, names and identifying numbers of employees and other 
individuals as needed to comply with sections 12(d) and (n) of the 
Railroad Unemployment Insurance Act, section 7(b)(3) of the Railroad 
Retirement Act, and Sec. 200.8 of this part, or to prevent a clearly 
unwarranted invasion of personal privacy.
    (c) There shall be maintained in the Board's library a current index 
of the materials referred to in paragraph (a) of this section which will 
have been issued, adopted, or promulgated subsequent to July 4, 1967. 
This index shall be available for public inspection and copying at the 
Board's headquarters offices located at 844 Rush Street, Chicago, 
Illinois, during the normal business hours of the Board. Copies of the 
index or any portion thereof may be obtained for a fee equivalent to the 
costs of reproduction by submitting a written request therefor. Such 
request should comply with the form for requests as described in 
paragraph (h) of this section.
    (d) The materials and indexes thereto shall be kept, and made 
available to the public upon request, in the bureaus and offices of the 
Board which produce or utilize the materials. The following materials 
currently in use shall, as long as they are in effect as precedents

[[Page 107]]

and instructions, be made available in offices of the Board at 844 Rush 
Street, Chicago:
    (1) In the Bureau of Retirement Claims: The Retirement Claims 
Manual, RCM Circulars, Special Services Manual, Policy Decisions, 
Procedural Memoranda containing information on the adjudication of 
claims not contained in the Retirement Claims Manual or in RCM 
Circulars, Instructions and Circular Letters to Employers, Field 
Operating Manual (Parts I and VI), FOM Circulars and Memoranda, and the 
Occupational Disability Rating Schedule.
    (2) In the Bureau of Unemployment and Sickness Insurance: the 
Adjudication Instruction Manual, Regional Operating Manual (Part I), 
Field Operating Manual (Part II), FOM Circulars and Memoranda, Bureau of 
Unemployment and Sickness Insurance Circulars, Memorandum Opinions, 
memorandum instructions on adjudication, and circular letters of 
instruction to railroad officials.
    (3) In the Bureau of Research and Employment Accounts: the 
Instructions to Employers, and Circular Letters to Employers.
    (4) In the Bureau of Law: Legal Opinions.
    (5) In the Office of the Secretary of the Board: Decisions and 
rulings of the Board.

Regional offices and field offices shall also make available to the 
extent practicable such of these materials and indexes as are furnished 
them in the ordinary course of business.
    (e) The copies of manuals and instructions made available for public 
copying and inspection shall not include:
    (1) Confidential statements, standards, and instructions which do 
not affect the public, and
    (2) Instructions not affecting the public (such as those relating 
solely to processing and procedure, to management, or to personnel) 
which it is feasible to separate from instructions that do affect the 
public.
    (f) With the exception of records specifically excluded from 
disclosure by section 552(b) of title 5, United States Code, or other 
applicable statute, any records of or in the custody of this agency, 
other than those made available under paragraphs (a), (c), and (d) of 
this section, shall, upon receipt of a written request reasonably 
describing them, promptly be made available to the person requesting 
them.
    (g) The RRB may charge the person of persons making a request for 
records under paragraph (f) of this section a fee in an amount not to 
exceed the costs actually incurred in complying with the request and not 
to exceed the cost of processing a check for payment. Depending on the 
category into which the request falls, a fee may be assessed for the 
cost of search for documents, reviewing documents to determine whether 
any portion of any located documents is permitted to be withheld, and 
duplicating documents.
    (1) Fee schedule. To the extent that the following are chargeable, 
they are chargeable according to the following schedule:
    (i) The charge for making a manual search for records shall be the 
salary rate, including benefits, for a GS-7, step 5 Federal employee;
    (ii) The charge for reviewing documents to determine whether any 
portion of any located document is permitted to be withheld shall be the 
salary rate, including benefits, for a GS-13, step 5 Federal employee;
    (iii) The charge for making photocopies of any size document shall 
be $.10 per copy per page:
    (iv) The charge for computer-generated listings or labels shall 
include the direct cost to the RRB of analysis and programming, where 
required, plus the cost of computer operations to produce the listing or 
labels. The maximum computer search charge shall be $2,250.00 per hour 
($37.50 per minute). Search time shall not include the time expended in 
analysis or programming where these operations are required.
    (v) There shall be no charge for transmitting documents by regular 
post. The charge for all other methods of transmitting documents shall 
be the actual cost of transmittal.
    (2) Categories of requesters. For the purpose of assessing fees, 
requesters shall be classified into one of the following five groups:
    (i) Commercial use requesters. Commercial use requesters are 
requesters who

[[Page 108]]

seek information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made. For such requesters, the RRB will fully 
charge for the cost of searching, reviewing and copying and shall not 
consider a request for waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest; however, the 
RRB will not charge a fee if the total cost for searching, reviewing, 
and copying is less than $10.00.
    (ii) Educational and non-commercial scientific institution 
requesters. Educational requesters are educational institutions which 
operate a program or programs of scholarly research. They may be a 
preschool, a public or private elementary or secondary school, an 
institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, or an institution of vocational education. Non-commercial 
scientific requesters are institutions that are not operated on a 
``commercial'' basis and which are operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. To be eligible for inclusion 
in this category, requesters must show that the request is being made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. For requesters in this category, the RRB shall 
charge for the cost of reproduction alone, excluding the first 100 
pages, for which no charge will be made. If after excluding the cost of 
the first 100 pages of reproduction, there remain costs to be assessed, 
the RRB will not charge for such costs is such costs total less than 
$10.00. If the cost is $10.00 or more, the RRB may waive the charge or 
reduce it if it determines that disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. To be 
eligible for free search time, these requesters must reasonably describe 
the records sought.
    (iii) Requesters who are representatives of the news media. The term 
``representative of the news media'' refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that could be of interest to the public. 
In the case of ``freelance'' journalists, they may be regarded as 
working for a news organization if they can demonstrate a solid basis 
for expecting publication through that organization, even though not 
actually employed by it. For requesters in this category the RRB shall 
charge for the cost of reproduction alone excluding the cost of the 
first 100 pages, for which no charge will be made. If, after excluding 
the cost of the first 100 pages of reproduction, there remain costs to 
be assessed, the RRB will not charge for such costs if such costs total 
less than $10.00. If the cost is $10.00 or more, the RRB may waive the 
charge or reduce it if it determines that disclosure is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester. To be 
eligible for free search time, these requesters must reasonably describe 
the record sought.
    (iv) Requests by subjects of records in Privacy Act Systems of 
Records. Requests from subject individuals for records about themselves 
filed in any of the Board's Privacy Act Systems of records will continue 
to be treated under the fee provisions of the Privacy Act of 1984 which 
permit assessing fees only for reproduction.
    (v) All other requesters. For requesters who do not fall within the 
purview of paragraph (g)(2)(i), (ii), (iii), or (iv) of this section, 
the RRB will charge the full direct cost of searching for and 
reproducing records that are responsive to the request. The RRB will not 
charge for such costs to be assessed if the total is less than $10.00. 
If the total is $10.00 or more, the RRB may waive the charge or reduce 
it if it determines

[[Page 109]]

that disclosure of the information is in the public interest because it 
is likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requester.
    (3) Charges for unsuccessful searches. Where search time is 
chargeable, the RRB may assess charges for time spent searching, even if 
the RRB fails to locate the records, or if located, the records are 
determined to be exempt from disclosure. If the Board estimates that 
search charges are likely to exceed $25.00 it will notify the requester 
of the estimated amount of fees, unless the requester has agreed in 
advance to pay fees as high as those anticipated. Such notice will offer 
the requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or here needs at a lower 
cost.
    (4) Aggregating requests. When the RRB reasonably believes that a 
requester or group of requesters acting in concert is attempting to 
break a request into a series of requests for the purpose of evading the 
assessment of fees, the RRB will aggregate any such requests and charge 
accordingly. One element the RRB will consider in determining whether a 
belief would be reasonable is the time period in which the requests have 
been.
    (5) Advance payments. (i) The RRB estimates or determines that the 
allowable charges payment unless:
    (A) The RRV estimates or determines that the allowable charges that 
a requester may be required to pay are likely to exceed $250.00, in 
which case the RRV will notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payment of FOIA fees, or require an advance payment of 
an amount up to the full estimated charges in the case of requesters 
with no history of payment; or
    (B) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), in 
which case the RRB may require the requester to pay the full amount owed 
plus any applicable interest as provided below of demonstrate that he 
has, in fact, paid the fee, and to make an advance payment of the full 
amount of the estimated fee before the agency begins to process a new 
request or a pending request from that requester.
    (ii) When the Board acts under paragraph (g)(5)(i) of this section, 
the administrative time limits prescribed in subsection (a)(6) of the 
Freedom of Information Act (5 U.S.C. 552(a)(6)) (i.e., 10 working days 
from receipt of initial requests and 20 working days from receipt of 
appeals from initial denials, plus permissible extensions of these time 
limits) will begin only after the Board has received the fee payments 
described in said paragraph (g)(5)(i) of this section.
    (6) Charging interest. Interest may be charged to any requester who 
fails to pay fees charged within 30 days fo the date of billing. 
Interest will be assessed beginning on the 31st day following the day on 
which the bill for fees was sent. Interest will be the rate prescribed 
in section 3717 of title 31 of the U.S. Code Annotated and will accrue 
from the date of the billing.
    (7) Collection of fees due. Whenever it is appropriate in the 
judgment of the Board in order to encourage repayment of fees billed in 
accordance with these regulations, the Board will use the procedures 
authorized by the Debt Collection Act of 1982 (Pub. L. 97-365), 
including disclosure to consumer reporting agencies and use of 
collection agencies.
    (h) Any person or organization requesting records pursuant to this 
section shall submit such request in writing to the Executive Director, 
Railroad Retirement Board, Room 536, 844 Rush Street, Chicago, Illinois 
60611. All such requests should be clearly and prominently identified as 
requests for information under the Freedom of Information Act. If 
submitted by mail or otherwise submitted in an envelope or other cover, 
requests should be clearly and prominently identified as such on the 
envelope or cover.
    (i) The Executive Director, or any other individual specifically 
authorized to act on behalf of the Executive Director, shall have the 
authority to grant

[[Page 110]]

or deny a request for information submitted under this section. The 
Executive Director or such authorized representative shall, within 10 
working days following the receipt of a request, except as provided in 
paragraph (j)(1) of this section, make a determination granting or 
denying the request and notify the requester of his or her decision and 
if a denial, the reasons therefor. The requester shall be further 
advised that a total or partial denial may be appealed to the Board as 
provided in paragraph (j) of this section.
    (j) In cases where a request for information is denied, in whole or 
in part, by the Executive Director or his or her authorized 
representative, the party who originally made the request may appeal 
such determination to the Board by filing a written appeal with the 
Secretary of the Board within 20 working days following receipt of the 
notice of denial. The Board shall render a decision on an appeal within 
20 working days following receipt of the appeal except as provided in 
paragraph (j)(1) of this section. The requester shall promptly be 
notified of the Board's decision and, in cases where the denial is 
upheld, of the provisions for judicial review of such final 
administrative decisions.
    (1) In unusual circumstances, as enumerated in section 552(a)(6)(B) 
of title 5, United States Code, the time restrictions of paragraphs (i) 
and (j) of this section may be extended in the aggregate by no more than 
10 days by notice to the requester of such extension, the reasons 
therefor, and the date on which a determination is expected to be 
dispatched.
    (2) For purposes of paragraphs (i) and (j) of this section, a 
request shall be received by the Executive Director of the Board when it 
arrives at the Board's headquarters. Provided, however, That when the 
estimated fee to be assessed for a given request exceeds $30.00, such 
request shall be deemed not to have been received by the Executive 
Director until the requester is advised of the estimated cost and agrees 
to bear it. Provided further, That a request which does not fully comply 
with all the provisions of paragraph (h) of this section shall be deemed 
to have been received by the Executive Director on the day it actually 
reaches his or her office.
    (k) Any person in the employ of the Railroad Retirement Board who 
receives a request for any information, document or record of this 
agency, or in the custody thereof, shall advise the requester to address 
such request to the Executive Director. If the request received is in 
writing, it shall be immediately referred for action to the Executive 
Director.
    (l) The Executive Director shall maintain records of:
    (1) The total amount of fees collected by this agency pursuant to 
this section;
    (2) The number of initial denials of requests for records made 
pursuant to this section and the reason for each;
    (3) The number of appeals from such denials and the result of each 
appeal, together with the reason(s) for the action upon each appeal that 
results in a denial of information;
    (4) The name(s) and title(s) or position(s) of each person 
responsible for each initial denial of records requested and the number 
of instances of action on a request for information for each such 
person;
    (5) The results of each proceeding conducted pursuant to section 
552(a)(4)(F) of title 5 U.S. Code, including a report of any 
disciplinary action against an official or employee who was determined 
to be primarily responsible for improperly withholding records, or an 
explanation of why disciplinary action was not taken;
    (6) Every rule made by this agency affecting or in implementation of 
section 552 of title 5 U.S. Code;
    (7) The fee schedule for copies of records and documents requested 
pursuant to this regulation; and
    (8) All other information which indicates efforts to administer 
fully the letter and spirit of section 552 of title 5 U.S. Code.
    (m) The Board shall, prior to March 1 of each year, prepare and 
submit a report to the Speaker of the House of Representatives and the 
President of the Senate covering each of the categories of records 
maintained in accordance with the foregoing for the preceding calendar 
year.

[[Page 111]]

    (n) Special procedures for handling requests for business 
information:
    (1) The Freedom of Information Act exempts from mandatory disclosure 
matters that are ``trade secrets and commercial or financial information 
obtained from a person and privileged or confidential * * *.'' The Board 
maintains records that may include information within this exception and 
to protect the rights of submitters of business information with respect 
to the confidentiality of such information, all requests for records or 
information contained in contract bids, contract proposals, contracts, 
and similar business information documents shall be handled in 
accordance with the procedures established by this paragraph.
    (2) When the Executive Director or an individual authorized to grant 
or deny requests under the Freedom of Information Act receives a request 
for business information, the Executive Director or other individual 
shall promptly provide the person who submitted the information to the 
Board with written notice that a request for the information has been 
made. The notice shall specify what record or information has been 
requested and shall inform the business submitter that the submitter 
may, within ten working days after the date of the notice, file a 
written objection to disclosure of the information or portions of the 
information. The written objection to disclosure shall be addressed to 
the individual whose name appears in the notification and shall specify 
the portion or portions of the information that the submitter believes 
should not be disclosed and state the grounds or bases for objecting to 
disclosure of such portion or portions. No written notice to the 
business submitter shall be required under this subparagraph if it is 
readily determined that the information will not be disclosed or that 
the information has lawfully been published or otherwise made available 
to the public.
    (3) In determining whether to grant or deny the request for the 
business information, the official or entity making the determination 
shall carefully consider any objection to disclosure made by the 
submitter of the information in question.
    (4) If a determination is made to disclose information with respect 
to which the business submitter has filed an objection to disclosure, 
the official or entity making the determination shall, no later than ten 
working days prior to the date on which disclosure of the information 
will be made, provide the submitter with written notice of the 
determination to disclose. The written notice shall state the reasons 
why the submitter's grounds for objecting to disclosure were rejected 
and inform the submitter of the date on which the information is to be 
disclosed.
    (5) The Board shall promptly notify the business submitter of any 
suit commenced under the Freedom of Information Act to compel disclosure 
of information which he or she submitted to the Board.
    (o) Custom tailored information services; Fees charged. This 
paragraph and paragraph (p) of this section set forth the policy of the 
Railroad Retirement Board with respect to the assessment of a fee for 
providing custom tailored information where requested. Except as 
provided in paragraphs (o)(4)(vii) and (p) of this section, a fee shall 
be charged for providing custom tailored information.
    (1) Definition: Custom tailored information. Custom tailored 
information is information not otherwise required to be disclosed under 
this part but which can be created or extracted and manipulated, 
reformatted, or otherwise prepared to the specifications of the 
requester from existing records. For example, the Board needs to program 
computers to provide data in a particular format or to compile selected 
items from records, provide statistical data, ratios, proportions, 
percentages, etc. If this data is not already compiled and available, 
the end product would be the result of custom tailored information 
services.
    (2) Providing custom tailored information. The Board is not required 
to provide custom tailored information. It will do so only when the 
appropriate fees have been paid as provided in paragraph (o)(4) of this 
section and when the request for such information will not divert staff 
and equipment from the Board's primary responsibilities.

[[Page 112]]

    (3) Requesting custom tailored information. Information may be 
requested in person, by telephone, or by mail. Any request should 
reasonably describe the information wanted and may be sent to the 
Director of Administration, Railroad Retirement Board, 844 North Rush 
Street, Chicago, Illinois 60611-2092.
    (4) Fee schedule. Requests for custom tailored information are 
chargeable according to the following schedule:
    (i) Manual searching for records. Full cost of the time of the 
employees who perform the service, even if records cannot be found, 
management and supervisory costs, plus the full costs of any machine 
time and materials the employee uses. Consulting and other indirect 
costs will be assessed as appropriate.
    (ii) Photocopying or reproducing records on magnetic tapes or 
computer diskettes. The charge for making photocopies of any size 
document shall be $.10 per copy per page. The charge for reproducing 
records on magnetic tapes or computer diskettes is the full cost of the 
operator's time plus the full cost of the machine time and the materials 
used.
    (iii) Use of electronic data processing equipment to obtain records. 
Full cost for the service, including computer search time and computer 
runs and printouts, and the time of computer programmers and operators 
and of other employees.
    (iv) Certification or authentication. Full cost of certification and 
authentication.
    (v) Providing other special services. Full cost of the time of the 
employee who performs the service, management and supervisory costs, 
plus the full costs of any machine time and materials the employee uses. 
Consulting and other indirect costs will be assessed as appropriate.
    (vi) Special forwarding arrangements. Full cost of special 
arrangements for forwarding material requested.
    (vii) Statutory supersession. Where a Federal statute prohibits the 
assessment of a charge for a service or addresses an aspect of that 
charge, the statute shall take precedence over this paragraph (o).
    (p) Assessment of a fee with respect to the provision of custom 
tailored information where the identification of the beneficiary is 
obscure and where provision of the information can be seen as benefiting 
the public generally. When the identification of a specific beneficiary 
with respect to the provision of custom tailored information is obscure, 
the service can be considered primarily as benefiting broadly the 
general public, and the estimated cost of providing the information is 
less than $1,000.00, the Director of Administration shall determine 
whether or not a fee is to be charged. In any such case where the cost 
is $1,000.00 or more, the request shall be referred by the Director of 
Administration to the three-member Board for a determination whether or 
not a fee is to be assessed.

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

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



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

    (a) Purpose and scope. The purpose of this section is to establish 
specific procedures necessary for compliance with the Privacy Act of 
1974 (Pub. L. 93-579). These regulations apply to all record systems 
containing information of a personal or private nature maintained by the 
Railroad Retirement Board that are indexed and retrieved by personal 
identifier.
    (b) Definitions--(1) Individual. The term ``individual'' pertains to 
a natural person who is a citizen of the United States or an alien 
lawfully admitted for permanent residence and not to a company or 
corporation.
    (2) System of records. For the purposes of this section, the term 
``system of records'' pertains to only those records that can be 
retrieved by an individual identifier.
    (3) Railroad Retirement Board. For purposes of this section, the 
term ``Railroad Retirement Board'' refers to the United States Railroad 
Retirement Board, an independent agency in the

[[Page 113]]

executive branch of the United States Government.
    (4) Board. For purposes of this section the term ``Board'' refers to 
the three member governing body of the United States Railroad Retirement 
Board.
    (c) Procedure for requesting the existence of personally 
identifiable records in a record system. An individual can determine if 
a particular record system maintained by the Railroad Retirement Board 
contains any record pertaining to him by submitting a written request 
for such information to the system manager of that record system as 
described in the annual notice published in the Federal Register. A 
current copy of the system notices, published in accordance with 
paragraph (i) of this section, is available for inspection at all 
regional and district offices of the Board. If necessary, Board 
personnel will aid requesters in determining what system(s) of records 
they wish to review and will forward any requests for information to the 
appropriate system manager. Also, requests for personal information may 
be submitted either by mail or in person to the system manager at the 
headquarters of the Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611. Prior to responding to a request for information under 
this subsection, the system manager shall require the individual 
requesting such information to provide identifying data, such as his 
full name, date of birth, and social security number. The system manager 
shall respond to a request under this subsection within a reasonable 
time by stating that a record on the individual either is or is not 
contained in the system.
    (d) Disclosure of requested information to individuals. (1) Upon 
request, an individual shall be granted access to records pertaining to 
himself, other than medical records and records compiled in anticipation 
of a civil or criminal action or proceeding against him, which are 
indexed by individual identifier in a particular system of records. 
Requests for access must be in writing and should be addressed to the 
system manager of that record system as described in the annual notice 
published in the Federal Register. Requests under this subsection may be 
submitted either by mail or in person at the headquarters offices of the 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611.
    (2) The system manager shall, within ten working days following the 
date on which the request is received in his office, render a decision 
either granting or denying access and shall promptly notify the 
individual of his decision. If the request is denied, the notification 
shall inform the individual of his right to appeal the denial to the 
Board. An individual whose request for access under this subsection has 
been denied by the system manager may appeal that determination to the 
Board by filing a written appeal with the Secretary of the Board, 
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611 
within twenty working days following receipt of the notice of denial. 
The Board shall render a decision on an appeal within thirty working 
days following the date on which the appeal is received in the office of 
the Secretary of the Board. The individual shall promptly be notified of 
the Board's decision.
    (3) In cases where an individual has been granted access to his 
records, the system manager shall, prior to releasing such records, 
require the individual to produce identifying data such as his name, 
date of birth, and social security number.
    (4) Disclosure to an individual of his record may be made by 
providing him, upon written request therefor, a copy of the record or 
portion thereof which he reasonably describes in his request.
    (5) An individual, and if such individual so desires, one other 
person of his choosing, may review and have a copy made of his record 
(in a form comprehensible to him) during regular business hours at the 
location described as the repository of the record system containing 
such records in the annual notice published in the Federal Register or 
at such other location convenient to the individual as specified by the 
system manager. If an individual is accompanied by another person, the 
system manager may require written authorizations for disclosure in the 
presence of the other person from the individual before any record or 
portion thereof is released.

[[Page 114]]

    (e) Special procedures--medical records. (1) An individual 
concerning whom the Railroad Retirement Board maintains medical records 
in a system of records shall, upon written request, be permitted to 
review such medical records or be furnished copies of such records if 
the system manager of the system containing the requested records 
determines that disclosure of the records or any portion thereof would 
not be harmful to the individual's mental or physical health.
    (2) If, upon review of the medical records requested, the system 
manager determines that disclosure of such records or any portion 
thereof might be harmful to the individual's mental or physical health, 
he shall inform the individual that copies of the records may be 
furnished to a physician of the individual's own choosing. If the 
individual should select a physician to conduct such a review and direct 
the Board to permit the physician to review the records, the system 
manger shall promptly forward copies of the records in question to that 
physician. The system manger shall inform the physician that the records 
are being provided to him or her for the purpose of making an 
independent determination as to whether release or the records directly 
to the individual who has requested them might be harmful to that 
individual. The physician shall be informed that if, in his or her 
opinion, direct disclosure of the records would not be harmful to the 
individual's mental or physical health, he or she may then provide the 
copies to the individual. The physician shall further be informed that 
should he or she determine that disclosure of the records in question 
might be harmful to the individual, such records shall not be disclosed 
and should be returned to the Board, but the physician may summarize and 
discuss the contents of the records with the individual.
    (3) The special procedure established by paragraph (e) of this 
section to permit an individual access to medical records pertaining to 
himself or herself shall not be construed as authorizing the individual 
to direct the Board to disclose such medical records to any third 
parties, other than to a physician in accordance with paragraph (e)(2) 
of this section. Medical records shall not be disclosed by the Board to 
any entities or persons other than the individual to whom the record 
pertains or his or her authorized physician regardless of consent, 
except as permissible under paragraphs (j)(1)(i), (iii), and (viii) of 
this section and as provided under paragraph (e)(4) of this section.
    (4) Notwithstanding the provisions of paragraphs (e)(1), (2) and (3) 
of this section and of paragraph (d) of this section, if a determination 
made with respect to an individual's claim for benefits under the 
Railroad Retirement Act of the Railroad Unemployment Insurance Act is 
based in whole or in part on medical records, disclosure of or access to 
such medical records shall be granted to such individual or to such 
individual's representative when such records are requested for the 
purpose of contesting such determination either administratively of 
judicially.
    (5) The procedures for access to medical records set forth in 
paragraph (e) of this section shall not apply with respect to requests 
for access to an individual's disability decision sheet or similar 
adjudicatory documents, access to which is governed solely by paragraph 
(d) of this section.
    (f) General exemptions--(1) Systems of records subject to 
investigatory material exemption under 5 U.S.C. 552a(j)(2). RRB-43, 
Investigation Files, a system containing information concerning alleged 
violations of law, regulation, or rule pertinent to the administration 
of programs by the RRB or alleging misconduct or conflict of interest on 
the part of RRB employees in the discharge of their official duties.
    (2) Scope of exemption. (i) The system of records identified in this 
paragraph is maintained by the Office of Investigations (OI) of the 
Office of Inspector General (OIG), a component of the Board which 
performs as its principal function activities pertaining to the 
enforcement of criminal laws. Authority for the criminal law enforcement 
activities of the OIG's OI is the Inspector General Act of 1978, 5 
U.S.C. App.
    (ii) Applicable information in the system of records described in 
this paragraph is exempt from subsections (c)(3) and (4) (Accounting of 
Certain Disclosures), (d) (Access to Records),

[[Page 115]]

(e)(1), (2), (3), (4)(G), (H), and (I), (5), and (8), (Agency 
Requirements), (f) (Agency Rules) and (g) (Civil Remedies) of 5 U.S.C. 
552a.
    (iii) To the extent that information in this system of records does 
not fall within the scope of this general exemption under 5 U.S.C. 
552(j)(2) for any reason, the specific exemption under 5 U.S.C. 
552(k)(2) is claimed for such information. (See paragraph (g) of this 
section.)
    (3) Reasons for exemptions. The system of records described in this 
section is exempt for one or more of the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make available to the 
individual named in the records, at his or her request, an accounting of 
each disclosure of records. This accounting must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Accounting of each disclosure would alert the subjects of 
an investigation to the existence of the investigation and the fact that 
they are subjects of an investigation. The release of such information 
to the subjects of an investigation would provide them with significant 
information concerning the nature of the investigation, and could 
seriously impede or compromise the investigation and lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (ii) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with subsection (d) of the Act. Since the RRB is 
claiming that this system of records is exempt from subsection (d) of 
the Act, concerning access to records, this section is inapplicable and 
is exempted to the extent that this system of records is exempted from 
subsection (d) of the Act.
    (iii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him or her, to request amendment of 
such records, to request a review of an agency decision not to amend 
such records, and to contest the information contained in such records. 
Granting access to records in this system of records could inform the 
subject of the investigation of an actual or potential criminal 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his or her 
activities, of the identity of confidential sources, witnesses, and law 
enforcement personnel, and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony, and disclose investigative techniques 
and procedures.
    (iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose required by statute or executive order 
of the President. The application of this provision could impair 
investigations and law enforcement, because it is not always possible to 
detect the relevance or necessity of specific information in the early 
stages of an investigation. Relevance and necessity are often questions 
of judgment and timing, and it is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    (v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation of the existence 
of the investigation, enabling the subject to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony. Moreover, in certain circumstances the subject 
of an investigation cannot be required to provide information to 
investigators, and information must be collected from other sources. 
Furthermore, it is often necessary to collect information from sources 
other than the subject of the investigation to verify the accuracy of 
the evidence collected.

[[Page 116]]

    (vi) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purposes 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation.
    (vii) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him or her, how he or she can gain access to such a 
record, and how he or she can contest its contents. Since the RRB is 
claiming that the system of records is exempt from subsection (f) of the 
Act, concerning agency rules, and subsection (d) of the Act, concerning 
access to records, these requirements are inapplicable and are exempted 
to the extent that these systems of records are exempted from 
subsections (f) and (d) of the Act. Although the RRB is claiming 
exemption from these requirements, RRB has published such a notice 
concerning its notification, access, and contest procedures because, 
under certain circumstances, RRB might decide it is appropriate for an 
individual to have access to all or a portion of his or her records in 
this system of records.
    (viii) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish in the 
Federal Register notice concerning the categories of sources or records 
in the system of records. Exemption from this provision is necessary to 
protect the confidentiality of the sources of information, to protect 
the privacy of confidential sources and witnesses, and to avoid the 
disclosure of investigative techniques and procedures. Although RRB is 
claiming exemption from this requirement, RRB has published such a 
notice in broad generic terms in the belief that this is all subsection 
(e)(4)(I) of the Act requires.
    (ix) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Since the Act defines ``maintain'' 
to include the collection of information, complying with this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In 
collecting information for criminal law enforcement purposes, it is not 
possible to determine in advance what information is accurate, relevant, 
timely, and complete. Facts are first gathered and then placed into a 
logical order to prove or disprove objectively the criminal behavior of 
an individual. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
the investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, 
thereby impending effective law enforcement.
    (x) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.
    (xi) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his or her request if any system of records named by the 
individual contains a record pertaining to him or her. The application 
of this provision could impede or compromise an investigation or 
prosecution if the subject of an investigation was able to use such 
rules to learn of the existence of an investigation before it could be 
completed. In addition, mere notice of the fact of an investigation 
could inform the subject or others that their activities are under or 
may become the subject of an

[[Page 117]]

investigation and could enable the subjects to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony. Since the RRB is claiming that these systems of 
records are exempt from subsection (d) of the Act, concerning access to 
records, the requirements of subsections (f)(2) through (5) of the Act, 
concerning agency rules for obtaining access to such records, are 
inapplicable and are exempted to the extent that this system of records 
is exempted from subsection (d) of the Act. Although RRB is claiming 
exemption from the requirements of subsection (f) of the Act, RRB has 
promulgated rules which establish Agency procedures because, under 
certain circumstances, it might be appropriate for an individual to have 
access to all or a portion of his or her records in this system of 
records. These procedures are described elsewhere in this part.
    (xii) 5 U.S.C. 552a(g) provides for civil remedies if an agency 
fails to comply with the requirements concerning access to records under 
subsections (d)(1) and (3) of the Act; maintenance of records under 
subsection (e)(5) of the Act; and any rule promulgated thereunder, in 
such a way as to have an adverse effect on an individual. Since the RRB 
is claiming that this system of records is exempt from subsections 
(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G), (H), and (I), (5), and 
(8), and (f) of the Act, the provisions of subsection (g) of the Act are 
inapplicable and are exempted to the extent that this system or records 
is exempted from those subsections of the Act.
    (g) Specific exemptions--(1) Systems of records subject to 
investigatory material exemption under 5 U.S.C. 552a(k)(2). RRB-43, 
Investigation Files, a system containing information concerning alleged 
violations of law, regulation, or rule pertinent to the administration 
of programs by the RRB or alleging misconduct or conflict of interest on 
the part of RRB employees in the discharge of their official duties.
    (2) Privacy Act provisions from which exempt. The system of records 
described in this paragraph is exempt from subsections (c)(3) 
(Accounting of Certain Disclosures), (d) (Access to Records), (e)(1), 
4G, H, and I (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 
552a.
    (3) Reasons for exemptions. The system of records described in this 
section is exempt for one or more of the following reasons:
    (i) To prevent the subject of the investigations from frustrating 
the investigatory process.
    (ii) To protect investigatory material compiled for law enforcement 
purposes.
    (iii) To fulfill commitments made to protect the confidentiality of 
sources and to maintain access to necessary sources of information.
    (iv) To prevent interference with law enforcement proceedings.
    (h) Request for amendment of a record. (1) An individual may request 
that a record pertaining to himself be amended by submitting a written 
request for such amendment to the system manager as described in the 
annual notice published in the Federal Register. Requests under this 
subsection may be made either by mail or in person at the headquarters 
offices of the Railroad Retirement Board, 844 Rush Street, Chicago, 
Illinois 60611. Such a request should include a statement of the 
information in the record which the individual believes is incorrect, a 
statement of any information not in the record which the individual 
believes would correct the record, if included, and a statement of any 
evidence which substantiates the individual's belief concerning the 
inaccuracy of the information presently contained in the record.
    (2) Prior to rendering a determination in response to a request 
under this subsection, the system manager shall require that the 
individual provide identifying data such as his name, date of birth, and 
social security number.
    (3) The system manager responsible for the system of records which 
contains the challenged record shall acknowledge receipt of the request 
in writing within ten working days following the date on which the 
request for amendment was received in his office and shall promptly 
render a decision either granting or denying the request.
    (i) If the system manager grants the individual's request to amend 
his

[[Page 118]]

record, the system manager shall amend the record accordingly, advise 
the individual in writing that the requested amendment has been made and 
where an accounting of disclosures has been made, advise all previous 
recipients of the record to whom disclosure of such record was made and 
accounted for of the fact that the amendment was made and the substance 
of the amendment.
    (ii) If the system manager denies the individual's request to amend 
his record, the system manager shall inform the individual that the 
request has been denied in whole or in part, the reason for the denial 
and the procedure regarding the individual's right to appeal the denial 
to the Board.
    (i) Appeal of initial adverse determination on amendment. (1) An 
individual, whose request for amendment of a record pertaining to him is 
denied, may appeal that determination to the Board by filing a written 
appeal with the Secretary of the Board, Railroad Retirement Board, 844 
Rush Street, Chicago, Illinois 60611. The written notice of appeal 
should include a statement of the information in the record which the 
individual believes is correct, a statement of any information not in 
the record which the individual believes would correct the record, if 
included, and a statement of any evidence which substantiates the 
individual's belief concerning the inaccuracy of the information 
presently contained in the record.
    (2) The Board shall consider the appeal and render a final decision 
thereon within thirty working days following the date on which the 
appeal is received in the office of the Secretary of the Board. An 
extension of the thirty day response period is permitted for a good 
cause upon notification of such to the requester.
    (3) If, upon consideration of the appeal, the Board upholds the 
denial, the appellant shall be so informed in writing. The appellant 
shall be advised that he may file a concise statement with the Board 
setting forth his reasons for disagreeing with the Board's decision and 
the procedures to be followed in filing such a statement of 
disagreement. The individual shall also be informed of his right to 
judicial review as provided under section 552a(g)(1)(A) of title 5 of 
the United States Code. If disclosure has or will be made of a record 
containing information about which an individual has filed a statement 
of disagreement, that contested information will be annotated and a copy 
of the statement of disagreement will be provided to past and future 
recipients of the information along with which the Board may include a 
statement of its reasons for not amending the record in question.
    (4) If, upon consideration of the appeal, the Board reverses the 
denial, the Board shall amend the record, advise the appellant in 
writing that such amendment has been made, and where an accounting of 
disclosures has been made, advise all previous recipients of the record 
to whom disclosure of such was made and accounted for, of the fact that 
the amendment was made and the substance of the amendment.
    (j) Disclosure of record to person other than the individual to whom 
it pertains. (1) Records collected and maintained by the Railroad 
Retirement Board in the administration of the Railroad Retirement Act 
and the Railroad Unemployment Insurance Act which contain information of 
a personal or private nature shall not be disclosed to any person or to 
another agency without the express written consent of the individual to 
whom the record pertains. Such written consent shall not be required if 
the disclosure is not otherwise prohibited by law or regulation and is:
    (i) To officers or employees of the Railroad Retirement Board who, 
in the performance of their official duties, have a need for the record;
    (ii) Required under section 552 of title 5 of the U.S. Code;
    (iii) For a routine use of such record as published in the annual 
notice in the Federal Register;
    (iv) To the Bureau of the Census for uses pursuant to the provisions 
of title 13 of the United States Code;
    (v) To a recipient who has provided the Board with advance written 
assurance that the record will be used solely as a statistical or 
research record, and the record is to be transferred in a form that is 
not individually identifiable;

[[Page 119]]

    (vi) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government or for evaluation by the 
administrator of General Services or his designee to determine whether 
the record has such value;
    (vii) To another agency or to an instrumentality of any governmental 
jurisidiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the agency which maintains the record specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (viii) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon such 
disclosure, notification is transmitted to the last known address of 
such individual;
    (ix) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (x) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (xi) Pursuant to the order of a court of competent jurisdiction.
    (2) The Railroad Retirement Board shall maintain an accounting of 
all disclosures of records made under paragraph (h)(1) of this section, 
except those made under paragraphs (h)(1)(i) and (ii) of this section. 
This accounting will include:
    (i) Date of disclosure;
    (ii) Specific subject matter of disclosure;
    (iii) Purpose of disclosure; and
    (iv) Name and address of the person or agency to whom the 
information has been released.

The Railroad Retirement Board shall maintain the accounting for five 
years or the life of the system of records, whichever is longer, and 
make such accounting, with the exception of disclosures made under 
paragraph (h)(1)(vii) of this section, available to the individual to 
whom the record pertains upon his request. If, subsequent to disclosure 
of a record for which disclosure an accounting has been made pursuant to 
this subsection, an amendment is made to that record or an individual 
has filed a statement of disagreement concerning that record, the person 
or agency to whom such disclosure was made shall be notified of the 
amendment or statement of disagreement.
    (k) Annual notice of systems of records. The Railroad Retirement 
Board shall publish in the Federal Register on an annual basis a listing 
of the various systems of records which it maintains by individual 
identifier. That notice shall provide the following for each system:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The routine uses of the system;
    (4) The methods of storage, disposal, retention, access controls and 
retrievability of the system;
    (5) The title and business address of the individual who is 
responsible for the system;
    (6) The procedure whereby an individual can be notified at his 
request whether or not the system contains a record pertaining to him;
    (7) The procedure whereby the individual can be notified at his 
request how he can gain access to any record pertaining to him which is 
contained in the system;
    (8) How the individual can contest the contents of such a record; 
and
    (9) The categories of sources of records in the system.
    (l) Collection of information and maintenance of records. With 
respect to each system of records indexed by individual identifer which 
is maintained by the Railroad Retirement Board, the Railroad Retirement 
Board shall:
    (1) Maintain in each system only such information about an 
individual as is relevant and necessary in accomplishing the purposes 
for which the system is kept;
    (2) To the greatest extent practicable, collect information directly

[[Page 120]]

from the individual when that information may result in an adverse 
determination about such individual's rights, benefits or privileges 
under programs administered by the Railroad Retirement Board;
    (3) Inform each individual who is asked to supply information:
    (i) The authority under which the solicitation of such information 
is carried out;
    (ii) Whether disclosure of the requested information is mandatory or 
voluntary and any penalties for failure to furnish such information;
    (iii) The principal purposes for which the information will be used;
    (iv) The routine uses and transfers of such information; and
    (v) The possible effects on such individual if he fails to provide 
the requested information.
    (4) Maintain all records which are used by the Railroad Retirement 
Board in making any determination about any individual with such 
accuracy, relevance, timeliness and completeness as is reasonably 
necessary to assure fairness to the individual in the determination;
    (5) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to paragraph (h)(1)(ii) of this section, make reasonable efforts to 
assure that such records are accurate, complete, timely and relevant for 
purposes of the administration of the Railroad Retirement Act and the 
Railroad Unemployment Insurance Act;
    (6) Maintain no record describing how any individual exercises 
rights guaranteed by the First Amendment unless expressly authorized by 
statute or by the individual to whom the record pertains or unless 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (7) Make reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record; and
    (8) At least thirty days prior to publication of information under 
paragraph (i) of this section, publish in the Federal Register notice of 
any new use or intended use of the information in the system and provide 
an opportunity for interested persons to submit written data, views or 
arguments to the Railroad Retirement Board.
    (m) Fees. The Railroad Retirement Board may assess a fee for copies 
of any records furnished to an individual under paragraph (d) of this 
section. The fees for copies shall be $.10 per copy per page, not to 
exceed the actual cost of reproduction, and should be paid to the 
Director of Budget and Fiscal Operations for deposit to the Railroad 
Retirement Account. If payment is made by check, the check should be 
payable to the order of the Railroad Retirement Board. Any fee of less 
than $10 may be waived by the system manager if he determines that it is 
in the public interest to do so.
    (n) Government contractors. When the Railroad Retirement Board 
provides by a contract or by a subcontract subject to its approval for 
the operation by or on behalf of the Railroad Retirement Board of a 
system of records to accomplish an agency function, the Railroad 
Retirement Board shall, consistent with its authority, cause the 
requirements of section 552a of title 5 of the United States Code to be 
applied to such system. In each such contract or subcontract for the 
operation of a system of records, entered into on or after September 27, 
1975, the Railroad Retirement Board shall cause to be included a 
provision stating that the contractors or subcontractors and their 
employees shall be considered employees of the Railroad Retirement Board 
for purposes of the civil and criminal penalties provided in sections 
(g) and (i) of the Privacy Act of 1974 (5 U.S.C. 552a (g) and (i)).
    (o) Mailing lists. The Railroad Retirement Board shall neither sell 
nor rent information containing any individual's name or address, unless 
authorized by statute.
    (p) Disclosure of social security account numbers. Whenever an 
individual is requested by the Railroad Retirement Board to disclose his 
social security account number he shall be informed as to whether such 
disclosure is mandatory or voluntary. If disclosure of the individual's 
social security account

[[Page 121]]

number is mandatory, he shall be informed of the statutory authority 
requiring such disclosure.
[41 FR 20580, May 19, 1976, as amended at 43 FR 17468, Apr. 25, 1978; 50 
FR 27222, July 2, 1985. Redesignated at 52 FR 11010, Apr. 6, 1987, as 
amended at 53 FR 3198, Feb. 4, 1988; 54 FR 43055, Oct. 20, 1989]



Sec. 200.6  Open meetings.

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

[[Page 122]]

    (iii) Disclose matters exempted from disclosure under 45 U.S.C. 
362(d) and 362(n) and 45 U.S.C. 231f(b)(3) or disclose matters 
specifically exempted from disclosure by any other statute (other than 5 
U.S.C 552), Provided, That such other statute either requires that the 
matters be withheld from the public in such a manner as to afford no 
discretion on the issue or establishes particular criteria for 
withholding or refers to particular types of matters to be withheld;
    (iv) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (v) Involve accusing any person of a crime, or formally censuring 
any person;
    (vi) Disclose information of a personal nature where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (vii) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would
    (A) Interfere with law enforcement proceedings,
    (B) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (C) Constitute an unwarranted invasion of personal privacy,
    (D) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (E) Disclose investigative techniques and procedures, or
    (F) Endanger the life or physical safety of law enforcement 
personnel;
    (viii) Disclose information the premature disclosure of which would 
be likely to significantly frustrate implementation of a proposed Board 
action, except that this paragraph shall not apply in any instance where 
the Board has already disclosed to the public the content or nature of 
its proposed action, or where the Board is required by law to make such 
disclosure on its own initiative prior to taking final agency action on 
such proposal; or
    (ix) Specifically concern the agency's issuance of a subpoena, or 
the agency's participation in a civil action or proceeding, an action in 
a foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the authority granted in 45 
U.S.C. 231f and 45 U.S.C. 365.
    (d)(1) Any action by the Board to close a meeting or a portion 
thereof, or to withhold any information pertaining to such meeting or 
portion thereof, shall be taken only upon the vote of at least two 
members of the Board that the meeting or portion thereof be closed or 
information withheld for one or more of the reasons set forth in 
paragraph (c)(3) of this section. A single vote may be taken with 
respect to a series of meetings, to close the meetings or portions 
thereof or to withhold information pertaining to such meetings, where 
the meetings or portions thereof involve the same subject matter and are 
scheduled within 30 calendar days after the date of the initial meeting 
in the series.
    (2) The vote of each member of the Board participating in the vote 
on closure of a meeting or portion thereof shall be recorded. Vote by 
proxy shall not be allowed.
    (3) A person whose interests might be directly affected by a meeting 
or portion thereof which otherwise would be open may request that the 
meeting or portion thereof which concerns such person's interests be 
closed under paragraphs (c)(3)(v), (vi), or (vii) of this section. The 
request should be directed to The Secretary, Railroad Retirement Board, 
844 Rush Street, Chicago, Illinois 60611, and must be received no later 
than the beginning of the meeting to which it applies. Upon receipt of 
such a request the Board shall vote by recorded vote on the question as 
to whether the meeting or portion thereof should be closed.
    (4) Within one day following a vote taken under paragraphs (d)(2) 
and (3) of this section, a copy of such vote showing the vote of each 
member shall be available for public inspection and copying in the 
office of the Secretary

[[Page 123]]

of the Board, located in the Board's headquarters office.
    (5) If a meeting or portion thereof is closed in accordance with an 
action under paragraphs (d)(2) or (3) of this section, the Board shall, 
within one day following the vote, except to the extent such information 
is exempt from disclosure under paragraph (c) of this section, make 
available for inspection and copying in the office of the Secretary of 
the Board a written explanation of the Board's action and a list of the 
persons expected to attend and their affiliations.
    (e)(1) Except as to those meetings or portions of meetings scheduled 
as provided in paragraphs (d)(2) and (3) of this section, the Board 
shall for each meeting make public announcement at least one week prior 
thereto of the time, place and subject matter of the meeting, whether 
the meeting is to be open or closed to the public, and the name and 
telephone number of an official of the Railroad Retirement Board 
designated by the Board to respond to any requests from the public 
pertaining to the meeting.
    (2) The requirement contained in paragraph (e)(1) of this section 
that the Board give one week advance notice of each meeting shall not 
apply where the Board determines by majority vote, which vote shall be 
recorded, that agency business requires that a meeting be scheduled at 
an earlier date. If a meeting is scheduled less than one week in the 
future, as provided in this paragraph, the Board shall make a public 
announcement at the earliest practicable time of the time, place and 
subject matter of the meeting and whether the meeting is to be open or 
closed to the public.
    (3) The Board may change the time and place of a previously 
scheduled and announced meeting, but such change must be announced to 
the public at the earliest practicable time. The Board may change the 
subject matter, or its determination to open or close a meeting or 
portion thereof, of a previously scheduled and announced meeting only if 
(i) a majority of the Board determines by recorded vote that agency 
business requires the change and that no earlier public announcement of 
the change was possible, and (ii) the Board makes a public announcement 
of the change and the vote of each member thereon at the earliest 
practicable time.
    (4) Immediately following each public announcement required by this 
subsection, the Board shall submit for publication in the Federal 
Register notice of the time, place, and subject matter of the meeting, 
whether the meeting is to be open or closed, any changes in such items 
from a previous announcement, and the name and telephone number of the 
Railroad Retirement Board official designated by the Board to respond to 
requests concerning the announced meeting.
    (f)(1) Whenever the Board should determine to close a meeting or a 
portion of a meeting under any of the exemptions contained in paragraph 
(c)(3) of this section, the General Counsel of the Railroad Retirement 
Board shall, prior to the meeting, certify in writing that in his or her 
opinion the meeting or portion thereof may be closed to the public and 
shall state the applicable exemptions which permit closure. The Board 
shall maintain a copy of the General Counsel's certification and a copy 
of the statement of the presiding officer of the meeting setting forth 
the time and place of the meeting and a list of the persons present, 
other than those present merely as spectators.
    (2) In the event that a meeting or any portion of a meeting is 
closed to the public, a complete transcript or recording shall be made 
of the meeting or portion thereof closed; Provided, however, That if the 
meeting or portion thereof is closed under paragraph (c)(3)(ix) of this 
section, a set of minutes may be made of the closed meeting or portion 
of a meeting in lieu of a complete transcript or recording thereof. If a 
set of minutes is the method chosen to record the proceedings of a 
meeting or portion thereof closed under paragraph (c)(3)(ix) of this 
section, such minutes shall fully and clearly describe the matters 
discussed. The minutes shall also fully reflect any actions taken by the 
Board, set forth a statement of the reasons for such actions, summarize 
each of the views expressed concerning such actions, identify any 
documents considered in connection with such agency actions, and

[[Page 124]]

show the vote of the Board and each of its members on such actions.
    (3) The transcript, recording, or minutes of each meeting or portion 
thereof closed to the public shall be available for public inspection or 
listening in the office of the Secretary of the Board, 844 Rush Street, 
Chicago, Illinois 60611, no later than two weeks following the meeting. 
There shall be expunged or erased from the transcript, recording, or 
minutes of each meeting which is made available to the public any items 
of discussion or testimony when it has been determined that they contain 
information which may be withheld under paragraph (c) of this section, 
and that the public interest would not require disclosure. The 
determination as to what items of discussion or testimony shall be 
expunged or erased from the copies of the transcript, recording, or 
minutes available to the public shall be made by the Secretary of the 
Board with the approval of the Board.
    (4) Copies of transcripts, minutes, or transcriptions of recordings 
maintained by the Board as provided in paragraph (e)(3) of this section 
shall be provided to members of the public who request such copies, at 
the actual cost of duplicating or transcription. Requests for copies of 
transcripts, minutes or transcriptions of recordings should be in 
writing, addressed to the Secretary of the Board, Railroad Retirement 
Board, 844 Rush Street, Chicago, Illinois 60611, and should clearly 
indicate the date of the meeting or meetings for which such copies are 
requested. If the requester desires a copy of only a portion or portions 
of the transcript, minutes, or transcription of a specified meeting, the 
request should specify which portion or portions are desired.
    (5) The Board shall maintain the complete transcript, recording, or 
minutes required to be made under paragraph (e)(2) of this section for a 
period of at least two years after the meeting, or for at least one year 
after the conclusion of any agency proceeding with respect to which the 
meeting or portion of the meeting was held, whichever occurs later.
    (g) Nothing in this section shall expand or limit the rights of any 
person under 5 U.S.C. 552, and 20 CFR 200.3, except that the exemptions 
contained in paragraph (c) of this section shall govern in the case of 
any request under 5 U.S.C. 552 and 20 CFR 200.3 to copy, inspect, or 
obtain copies of transcripts, recordings, or minutes described in 
paragraph (f) of this section. Nothing in this section shall limit the 
rights of any individual under 5 U.S.C. 552a and 20 CFR 200.4 to gain 
access to any record which would be available to such individual under 
those provisions.
[42 FR 15312, Mar. 21, 1977, as amended at 42 FR 22865, Nov. 11, 1977. 
Redesignated at 52 FR 11010, Apr. 6, 1987]



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

    (a) Purpose. The Debt Collection Act of 1982 requires the Board to 
charge interest on claims for money owed the Board, to assess penalties 
on delinquent debts, and to assess charges to cover the costs of 
processing claims for delinquent debts. The Act permits, and in certain 
cases requires, an agency to waive the collection of interest, penalties 
and charges under circumstances which comply with standards enunciated 
jointly by the Comptroller General and the Attorney General. Those 
standards are contained in 4 CFR 102.13. This section contains the 
circumstances under which the Board may either assess or waive interest, 
penalties, and administrative costs which arise from benefit or annuity 
overpayments made under any of the Acts which the Board administers.
    (b)(1) Simple interest shall be assessed once a month on the unpaid 
principal of a debt.
    (2) Interest shall accrue from the date on which notice of the debt 
and demand for repayment with interest is first mailed or hand-delivered 
to the debtor, or in the case of a debt which is subject to section 
10(c) of the Railroad Retirement Act or section 2(d) of the Railroad 
Unemployment Insurance Act, interest shall accrue from the date that a 
denial of waiver of recovery is mailed or hand-delivered to the debtor 
or, if waiver has not been requested, upon the expiration of the time 
within which to request waiver, except as otherwise specified in this 
section.

[[Page 125]]

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

[[Page 126]]

    (2) The Board may waive the collection of interest, penalties and 
administrative costs in whole or in part in the following circumstances:
    (i) Where, in the judgment of the Board, collecting interest, 
penalty and administrative costs would be against equity and good 
conscience; or
    (ii) Where, in the judgment of the Board, collecting interest, 
penalty and administrative costs would not be in the best interest of 
the United States.
    (h)(1) In making determinations as to when the collection of 
interest, penalty and administrative costs is against equity and good 
conscience the Board will consider evidence on the following factors:
    (i) The fault of the overpaid individual in causing the underlying 
overpayment; and
    (ii) Whether the overpaid individual in reliance on the incorrect 
payment relinquished a valuable right or changed his or her position for 
the worse.
    (2) In rendering a determination as to when the collection of 
interest, penalties and administrative costs is not in the best interest 
of the United States the Board will consider the following factors:
    (i) Whether the collection of interest, penalties and administrative 
costs would result in the debt never being repaid; and
    (ii) Whether the collection of interest, penalties and 
administrative costs would cause undue hardship.
[52 FR 41559, Oct. 29, 1987, as amended at 59 FR 15049, Mar. 31, 1994]



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

    (a) Purpose and scope. The purpose of this section is to establish 
specific procedures necessary for compliance with section 12(d) of the 
Railroad Unemployment Insurance Act, which is incorporated into the 
Railroad Retirement Act by section 7(b)(3) of that Act. Except as 
otherwise indicated in this section, these regulations apply to all 
information obtained by the Railroad Retirement Board in connection with 
the administration of the Railroad Retirement Act and the Railroad 
Unemployment Insurance Act.
    (b) Definitions--Agency. The term agency refers to the Railroad 
Retirement Board, an independent agency in the executive branch of the 
United States Government.
    Applicant. The term applicant means a person who signs an 
application for an annuity or lump-sum payment or unemployment benefits 
or sickness benefits for himself or herself or for some other person.
    Beneficiary. The term beneficiary refers to an individual to whom a 
benefit is payable under either the Railroad Retirement Act or the 
Railroad Unemployment Insurance Act.
    Board. The term Board refers to the three-member governing body of 
the Railroad Retirement Board.
    Document. The term document includes correspondence, applications, 
claims, reports, records, memoranda and any other materials or data 
used, prepared, received or transmitted to, from, by or for the agency 
in connection with the administration of the Railroad Retirement Act or 
the Railroad Unemployment Insurance Act.
    Information. The term information means any non-medical document or 
data which is obtained by the agency in the administration of the 
Railroad Retirement Act and/or the Railroad Unemployment Insurance Act. 
Information does not include the fact of entitlement to or the amount of 
a benefit under either of these Acts. Medical records are subject to the 
disclosure provisions set out in Sec. 200.5(e) of this part.
    Testify and testimony. The terms testify and testimony include both 
in-person oral statements before a court or a legislative or 
administrative body and statements made in the form of depositions, 
interrogatories, declarations, affidavits or other means of formal 
participation in such proceedings.
    (c) General rule. Except as otherwise authorized by this section, 
information shall not be produced, disclosed, delivered or open to 
inspection in any manner revealing the identity of an employee, 
applicant or beneficiary unless the Board or its authorized designee 
finds that such production, disclosure,

[[Page 127]]

delivery, or inspection is clearly in furtherance of the interest of the 
employee, applicant or beneficiary or of the estate of such employee, 
applicant, or beneficiary. Where no such finding is made, no information 
shall be released except in accordance with the provisions of Sec. 200.5 
of this part, unless release of such information is required by a law 
determined to supersede this general rule. In addition, regardless of 
whether or not such finding can be made, information which is compiled 
in anticipation of a civil or criminal action or proceeding against an 
applicant or beneficiary may not be released under this general rule.
    (d) Subpoenas--statement of policy and general rule. (1) It is the 
policy of the Board to provide information, data, and records to non-
Federal litigants to the same extent and in the same manner that they 
are available to the general public. The availability of Board employees 
to testify before state and local courts and administrative and 
legislative bodies, as well as in Federal court and administrative 
proceedings which involve non-Federal litigants, concerning information 
acquired in the course of performing their official duties or because of 
the employee's official capacity, is governed by the Board's policy of 
maintaining strict impartiality with respect to private litigants and 
minimizing the disruption of an employee's official duties. Thus, the 
Board may refuse to make an employee available for testimony under this 
paragraph or paragraph (e) or (f) of this section if it determines that 
the information sought is available other than through testimony and 
where making such employee available would cause disruption of agency 
operations. However, this paragraph does not apply to any civil or 
criminal proceeding where the United States, the Railroad Retirement 
Board, or any other Federal agency is a party; to Congressional requests 
or subpoenas for testimony; to consultative services and technical 
assistance provided by the Board or the agency in carrying out its 
normal program activities; to employees serving as expert witnesses in 
connection with professional and consultative services rendered as 
approved outside activities (in cases where employees are providing such 
outside services, they must state for the record that the testimony 
represents their own views and does not necessarily represent the 
official position of the agency); or to employees making appearances in 
their private capacity in legal or administrative proceedings that do 
not relate to the official business of the agency (such as cases arising 
out of traffic accidents, crimes, domestic relations, etc.) and not 
involving professional and consultative services as described above.
    (2) No officer, agent, or employee of the agency is authorized to 
accept or receive service of subpoenas, summons, or other judicial 
process addressed to the Board or to the agency except as the Board may 
from time to time delegate such authority by power of attorney. The 
Board has issued such power of attorney to the Deputy General Counsel of 
the agency and to no one else.
    (3) In the event the production, disclosure, or delivery of any 
information is called for on behalf of the United States or the agency, 
such information shall be produced, disclosed, or delivered only upon 
and pursuant to the advice of the Deputy General Counsel.
    (4) When any member, officer, agent, or employee of the agency is 
served with a subpoena to produce, disclose, deliver, or furnish any 
information, he or she shall immediately notify the Deputy General 
Counsel of the fact of the service of such subpoena. Unless otherwise 
ordered by the Deputy General Counsel or his or her designee, he or she 
shall appear in response to the subpoena and respectfully decline to 
produce, disclose, deliver, or furnish the information, basing such 
refusal upon the authority of this section.
    (e) Subpoena duces tecum. (1) When any document is sought from the 
agency by a subpoena duces tecum or other judicial order issued to the 
agency by a court of competent jurisdiction in a proceeding wherein such 
document is relevant, a copy of such document, certified by the 
Secretary to the Board to be a true copy, may be produced, disclosed, or 
delivered by the agency if, in

[[Page 128]]

the judgment of the Board or its designee, such production is clearly in 
furtherance of the interest of the employee, applicant, or beneficiary 
to whom the document pertains, or is clearly in furtherance of the 
interest of the estate of such employee, applicant, or beneficiary, and 
such document does not consist of or include a report of medical 
information.
    (2) When the production, diclosure, or delivery of any document 
described in paragraph (e)(1) of this section would not be permitted 
under the standards therein set forth, no member, officer, agent, or 
employee of the agency shall make any disclosure of or testify with 
respect to such document.
    (f) Requests for voluntary testimony. All requests for testimony by 
a Board employee in his or her official capacity must be in writing and 
directed to the Deputy General Counsel. They shall state the nature of 
the requested testimony, why the information is not available by any 
other means, and the reasons, if any, why the testimony would be in the 
interest of the Board or the Federal government.
    (g) Authorized release of information. Subject to the limitation 
expressed in paragraph (h) of this section, disclosure of documents and 
information is hereby authorized, in such manner as the Board may by 
instructions prescribe, in the following cases:
    (1) To any employer, employee, applicant, or prospective applicant 
for an annuity or death benefit under the Railroad Retirement Act of 
1974, or his or her duly authorized representative, as to matters 
directly concerning such employer, employee, applicant, or prospective 
applicant in connection with the administration of such Act.
    (2) To any employer, employee, applicant or prospective applicant 
for benefits under the Railroad Unemployment Insurance Act, or his or 
her duly authorized representative, as to matters directly concerning 
such employer, employee, applicant, or prospective applicant in 
connection with the administration of such Act.
    (3) To any officer or employee of the United States lawfully charged 
with the administration of the Railroad Retirement Tax Act, the Social 
Security Act, or acts or executive orders administered by the Department 
of Veterans Affairs, and for the purpose of the administration of those 
Acts only.
    (4) To any applicant or prospective applicant for death benefits or 
accrued annuities under the Railroad Retirement Act, or to his or her 
duly authorized representative, as to the amount payable as such death 
benefits or accrued annuities, and the name of the person or persons 
determined by the agency to be the beneficiary, or beneficiaries, 
thereof, if such applicant or prospective applicant purports to have a 
valid reason for believing himself or herself to be, in whole or in 
part, the beneficiary thereof.
    (5) To any officer or employee of the United States lawfully charged 
with the administration of any Federal law concerning taxes imposed with 
respect to amounts payable under the Railroad Retirement Act of 1974 and 
the Railroad Unemployment Insurance Act and the name of the person or 
persons to whom such amount was payable.
    (6) To any officer or employee of any state of the United States 
lawfully charged with the administration of any law of such state 
concerning unemployment compensation, as to the amounts payable to 
payees or beneficiaries under the Railroad Retirement Act of 1974 and 
the Railroad Unemployment Insurance Act.
    (7) To any court of competent jurisdiction in which proceedings are 
pending which relate to the care of the person or estate of an 
incompetent individual, as to amounts payable under the Railroad 
Retirement Act to such incompetent individual, but only for the purpose 
of such proceedings.
    (8) To parties involved in litigation, including an action with 
respect to child support, alimony, or marital property, the amount of 
any actual or estimated benefit payable under the Railroad Retirement 
Act or the Railroad Unemployment Insurance Act, where such amount or 
estimated amount is relevant to that litigation.
    (9) To any employer, as to the monthly amount of any retirement 
annuity under the Railroad Retirement Act of 1974 or benefit under the 
Railroad Unemployment Insurance Act to which a present or former 
employee of that employer is entitled.

[[Page 129]]

    (10) To any governmental welfare agency, information about the 
receipt of benefits and eligibility for benefits.
    (11) To any law enforcement agency, information necessary to 
investigate or prosecute criminal activity in connection with claims for 
benefits under the Railroad Retirement Act, Railroad Unemployment 
Insurance Act, or any other Act the Board may be authorized to 
administer.
    (12) To any consular official, other than a consular officer of a 
country to which United States Treasury checks and warrants may not be 
sent, acting in behalf of a compatriot who has claimed benefits under 
the Railroad Retirement Act or Railroad Unemployment Insurance Act, 
information that is pertinent to the claim and that the applicant 
himself could have upon his or her own request.
    (h) No document and no information acquired solely by reason of any 
agreement, arrangement, contract, or request by or on behalf of the 
agency, relating to the gathering, preparation, receipt or transmittal 
of documents or information to, from or for the agency, which is by 
virtue of such agreement, arrangement, contract, or request in the 
possession of any person other than an employee of the agency, shall be 
produced, reproduced, or duplicated, disclosed or delivered by any 
person to any other person or tribunal (other than the agency or an 
employee thereof, or the person to whom the document or information 
pertains), whether in response to a subpoena or otherwise, except with 
the consent of the Board or its designee. Any person, upon receipt of 
any request, subpoena, or order calling for the production, disclosure, 
or delivery of such document or information shall notify the Board or 
its designee of the request, subpoena, or order and shall take no 
further action except upon advice of the Board or its designee. Unless 
consent of the Board or its designee is given, the person shall 
respectfully decline to comply with the request, subpoena or order.
    (i) Notwithstanding any other provision of this section, no 
disclosure of information may be made by the Board or any member, 
officer, agent, or employee of the agency, if the disclosure of such 
information is prohibited by law.
    (j) The Deputy General Counsel or his designee will request the 
assistance of the Department of Justice where necessary to represent the 
interests of the agency and its employees under this section.
[54 FR 43055, Oct. 20, 1989, as amended at 56 FR 50247, Oct. 4, 1991; 63 
FR 2141, Jan. 14, 1998]



Sec. 200.9  Selection of members of Actuarial Advisory Committee.

    (a) Introduction. Under section 15(f) of the Railroad Retirement Act 
of 1974 (45 U.S.C. 231n(f)), the Board is directed to select two 
actuaries to serve on an Actuarial Advisory Committee. This section 
describes how the two actuaries are selected.
    (b) Carrier actuary. One member of the Actuarial Advisory Committee 
shall be selected by recommendations made by ``carrier 
representatives.'' ``Carrier representatives,'' as used in this section, 
shall mean any organization formed jointly by the express companies, 
sleeping-car companies and carriers by railroad subject to the 
Interstate Commerce Act which own or control more than 50 percent of the 
total railroad mileage within the United States.
    (c) Railway labor actuary. The other member of the Actuarial 
Advisory Committee to be selected by the Board shall be recommended by 
``representatives of employees.'' ``Representatives of employees,'' as 
used in this section, shall mean any organization or body formed jointly 
by a majority of railway labor organizations organized in accordance 
with the provisions of the Railway Labor Act, as amended, or any 
individual or committee authorized by a majority of such railway labor 
organizations to make such recommendation.
[54 FR 43056, Oct. 20, 1989]



Sec. 200.10  Representatives of applicant or beneficiaries.

    (a) Power of attorney. An applicant or a beneficiary shall not be 
required to hire, retain or utilize the services of an attorney, agent, 
or other representative in any claim filed with the Board.

[[Page 130]]

In the event an applicant or beneficiary desires to be represented by 
another person, he or she shall file with the Board prior to the time of 
such representation a power of attorney signed by such applicant or 
beneficiary and naming such other person as the person authorized to 
represent the applicant or beneficiary with respect to matters in 
connection with his or her claim. However, the Board may recognize one 
of the following persons as the duly authorized representative of the 
applicant or beneficiary without requiring such power of attorney when 
it appears that such recognition is in the interest of the applicant or 
beneficiary:
    (1) A Member of Congress;
    (2) A person designated by the railway labor organization of which 
the applicant or beneficiary is a member to act on behalf of members of 
that organization on such matters; or
    (3) An attorney who, in the absence of information to the contrary, 
declares that he or she is representing the applicant or beneficiary.
    (b) Payment of claim. The Board will not certify payment of any 
awarded claim to or through any person other than the applicant or 
beneficiary for the reason that a power of attorney for such person to 
represent such applicant or beneficiary has been filed.
[54 FR 43057, Oct. 20, 1989]

[[Page 131]]



       SUBCHAPTER B--REGULATIONS UNDER THE RAILROAD RETIREMENT ACT





PART 201--DEFINITIONS--Table of Contents




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



Sec. 201.1  Words and phrases.

    For the purposes of the regulations in this chapter, except where 
the language or context indicates otherwise:
    (a) Act. The term ``act,'' or ``1937 act'' means the Railroad 
Retirement Act of 1937 (50 Stat. 307; 45 U.S.C. chapter 9). The term 
``1935 act,'' means the Railroad Retirement Act of 1935 (49 Stat. 967; 
45 U.S.C. chapter 9).
    (b) Employer. The term ``employer'' means an employer as defined in 
the act and part 202 of this chapter.
    (c) Employee. The term ``employee'' means an employee as defined in 
the act and part 203 of this chapter.
    (d) Service. The term ``service'' means service as defined in the 
act and part 220 of this chapter.
    (e) Compensation. The term ``compensation'' means compensation as 
defined in the act and part 222 of this chapter.
    (f) Board. The term ``Board'' means the Railroad Retirement Board.
    (g) Company. The term ``company'' means a partnership, association, 
joint stock company, corporation, or institution.
    (h) United States. The term ``United States'' where used in a 
geographical sense means the States and the District of Columbia.
    (i) Carrier. The term ``carrier'' means an express company, 
sleeping-car company, or carrier by railroad, subject to part I of the 
Interstate Commerce Act (24 Stat. 379; 49 U.S.C. chapter 1).
    (j) Person. The term ``person'' includes an individual, trust, 
estate, partnership, association, joint stock company, company, 
corporation, and institution.
    (k) General Committee. The term ``General Committee'' as used in 
section 1 of the Railroad Retirement Act of 1937 (50 Stat. 307; 45 
U.S.C., Sup., 228a) is construed to include any subordinate unit of a 
national railway labor organization, defined as an employer in the 1937 
act, regardless of the title or designation of such unit, which, under 
the constitution and bylaws of the organization of which it is a unit, 
is properly authorized to and does represent that organization on all of 
a particular railroad or on a substantial portion thereof (such as on 
that portion of a railroad under the jurisdiction of the general 
manager) in negotiating with the management of that railroad with 
respect to the wages and working conditions of the employees represented 
by such organization.
    (l) Local lodges and divisions; local lodge or division. The term 
``local lodges and divisions'' and the term ``local lodge or division'' 
as used in section 1(a) and 1(b), respectively, of the 1937 act, shall 
be construed to include any subordinate unit of a national railway labor 
organization defined as an ``employer'' under the 1937 act, which unit 
functions in the same manner as, or similar to ``local lodges'' as that 
term is ordinarily used, irrespective of the designation of such unit by 
its national organization.
[4 FR 1477, Apr. 7, 1939, as amended by Board Order 40-367, 5 FR 2717, 
Aug. 1, 1940; Board Order 59-190, 24 FR 9083, Nov. 7, 1959]



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




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

[[Page 132]]

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

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

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



Sec. 202.1  Statutory provisions.

    The term ``employer'' means any carrier (as defined in subsection 
1(m) of this section), and any company which is directly or indirectly 
owned or controlled by one or more such carriers or under common control 
therewith, and which operates any equipment or facility or performs any 
service (except trucking service, casual service, and the casual 
operation of equipment or facilities) in connection with the 
transportation of passengers or property by railroad, or the receipt, 
delivery, elevation, transfer in transit, refrigeration or icing, 
storage, or handling of property transported by railroad, and any 
receiver, trustee, or other individual or body, judicial or otherwise, 
when in the possession of the property or operating all or any part of 
the business of any such employer: Provided, however, That the term 
``employer'' shall not include any street, interurban, or suburban 
electric railway, unless such railway is operating as a part of a 
general steam-railroad system of transportation, but shall not exclude 
any part of the general steam-railroad system now or hereafter operated 
by any other motive power. The Interstate Commerce Commission is hereby 
authorized and directed upon request of the Board, or upon complaint of 
any party interested, to determine after hearing whether any line 
operated by electric power falls within the terms of this proviso. The 
term ``employer'' shall also include railroad associations, traffic 
associations, tariff bureaus, demurrage bureaus, weighing and inspection 
bureaus, collection agencies and other associations, bureaus, agencies, 
or organizations controlled and maintained wholly or principally by two 
or more employers as hereinbefore defined and engaged in the performance 
of services in connection with or incidental to railroad transportation; 
and railway labor organizations, national in scope, which have been or 
may be organized in accordance with the provisions of the Railway Labor 
Act, as amended, and their State and National legislative committees and 
their general committees and their insurance departments and their local 
lodges and divisions, established pursuant to the constitution and by-
laws of such organizations. (Sec. 1 (a), 50 Stat. 307; 45 U. S. C. 228a 
(a))
    The term ``employer'' shall not include any company by reason of its 
being engaged in the mining of coal, the supplying of coal to an 
employer where delivery is not beyond the mine tipple, and the operation 
of equipment or facilities therefore, or in any of such activities. (54 
Stat. 785; 45 U.S.C. 228a (a))
[4 FR 1478, Apr. 7, 1939, as amended by Board Order 41-526, 7 FR 96, 
Jan. 6, 1942]



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

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



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

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

[[Page 133]]



Sec. 202.4  Control.

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



Sec. 202.5  Company or person under common control.

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



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

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



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

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



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

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



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

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

[[Page 134]]

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



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

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

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



Sec. 202.11  Termination of employer status.

    The employer status of any company or person shall terminate 
whenever such company or person loses any of the characteristics 
essential to the existence of an employer status.
[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]



Sec. 202.12  Evidence of termination of employer status.

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

[[Page 135]]

duty of each employer promptly to notify the Board of any change in 
operations affecting such company's status as an employer.
[Board Order 41-85, 6 FR 1210, Mar. 1, 1941]



Sec. 202.13  Electric railways.

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

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

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



Sec. 202.14  Service incidental to railroad transportation.

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



Sec. 202.15  Railway labor organizations.

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

[[Page 136]]

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



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




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

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

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



Sec. 203.1  Statutory provisions.

    The term ``employee'' means (1) any individual in the service of one 
or more employers for compensation, (2) any individual who is in the 
employment relation to one or more employers, and (3) an employee 
representative. The term ``employee'' shall include an employee of a 
local lodge or division defined as an employer in sub-section (a) only 
if he was in the service of or in the employment relation to a carrier 
on or after the enactment date. The term ``employee representative'' 
means any officer or official representative of a railway labor 
organization other than a labor organization included in the term 
``employer'' as defined in section 1(a) who before or after the 
enactment date was in the service of an employer as defined in section 
1(a) and who is duly authorized and designated to represent employees in 
accordance with the Railway Labor Act, as amended, and any individual 
who is regularly assigned to or regularly employed by such officer or 
official representative in connection with the duties of his office.
    The term ``employee'' shall not include any individual while such 
individual is engaged in the physical operations consisting of the 
mining of coal, the preparation of coal, the handling (other than 
movement by rail with standard railroad locomotives) of coal not beyond 
the mine tipple, or the loading of coal at the tipple.
    An individual is in the service of an employer whether his service 
is rendered within or without the United States if (i) he is subject to 
the continuing authority of the employer to supervise and direct the 
manner of rendition of his service, or he is rendering professional or 
technical services and is integrated into the staff of the employer, or 
he

[[Page 137]]

is rendering, on the property used in the employer's operations, other 
personal services the rendition of which is integrated into the 
employer's operations, and (ii) he renders such service for 
compensation, or a method of computing the monthly compensation for such 
service is provided in section 3(c): Provided, however, That an 
individual shall be deemed to be in the service of an employer, other 
than a local lodge or division or a general committee of a railway-
labor-organization employer, not conducting the principal part of its 
business in the United States only when he is rendering service to it in 
the United States; and an individual shall be deemed to be in the 
service of such a local lodge or division only if (1) all, or 
substantially all, the individuals constituting its membership are 
employees of an employer conducting the principal part of its business 
in the United States; or (2) the headquarters of such local lodge or 
division is located in the United States; and an individual shall be 
deemed to be in the service of such a general committee only if (1) he 
is representing a local lodge or division described in clauses (1) or 
(2) immediately above; or (2) all, or substantially all, the individuals 
represented by it are employees of an employer conducting the principal 
part of its business in the United States; or (3) he acts in the 
capacity of a general chairman or an assistant general chairman of a 
general committee which represents individuals rendering service in the 
United States to an employer, but in such case if his office or 
headquarters is not located in the United States and the individuals 
represented by such general committee are employees of an employer not 
conducting the principal part of its business in the United States, only 
such proportion of the remuneration for such service shall be regarded 
as compensation as the proportion which the mileage in the United States 
under the jurisdiction of such general committee bears to the total 
mileage under its jurisdiction, unless such mileage formula is 
inapplicable in which case the Board may prescribe such other formula as 
it finds to be equitable, and if the application of such mileage 
formula, or such other formula as the Board may prescribe, would result 
in the compensation of the individual being less than 10 per centum of 
his remuneration for such service no part of such remuneration shall be 
regarded as compensation: Provided further, That an individual not a 
citizen or resident of the United States shall not be deemed to be in 
the service of an employer when rendering service outside the United 
States to an employer who is required under the laws applicable in the 
place where the service is rendered to employ therein, in whole or in 
part, citizens or residents thereof; and the laws applicable on August 
29, 1935, in the place where the service is rendered shall be deemed to 
have been applicable there at all times prior to that date.



Sec. 203.2  General definition of employee.

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



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

    (a) The legal relationship of employer and employee is defined by 
the act. Thus, an individual is performing service for an employer if:
    (1) He is subject to the right of an employer, directly or through 
another, to supervise and direct the manner in which his services are 
rendered; or
    (2) In rendering professional or technical services he is integrated 
into the staff of the employer; or
    (3) He is rendering personal services on the property used in the 
operations of the employer and the services are integrated into those 
operations.
    (b) The provisions in paragraph (a) of this section are controlling 
irrespective of whether the service is performed on a part-time basis, 
and, with respect to paragraph (a)(1) of this section, irrespective of 
whether the right to supervise and direct is exercised.



Sec. 203.4  When service is compensated.

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


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


[[Page 138]]





Sec. 203.5  Service outside the United States.

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



Sec. 203.6  Age, citizenship, and other factors.

    The age, citizenship, or residence of an individual, or his 
designation as other than an ``employee'' shall not be controlling in 
determining whether or not such individual is an employee within the 
meaning of the act, except that an individual not a citizen or resident 
of the United States shall not be deemed to be in the service of an 
employer when rendering service outside the United States to an employer 
who is required by the laws of the place where the service is performed 
to employ, in whole or in part, citizens or residents thereof and the 
laws in force therein on August 29, 1935, shall be deemed to have been 
in force at all times prior to that date.
[Board Order 55-89, 20 FR 3706, May 27, 1955]



Sec. 203.7  Local lodge employee.

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



PART 204--EMPLOYMENT RELATION--Table of Contents




Sec.
204.1  Introduction.

[[Page 139]]

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

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

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



Sec. 204.1  Introduction.

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



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

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



Sec. 204.3  Employment relation--prior service.

    An individual shall have an employment relation to an employer on 
August 29, 1935, for purposes of crediting service prior to January 1, 
1937, if:
    (a) He or she was in the service of an employer on that date; or
    (b) He or she was on that date on 1eave of absence expressly granted 
by the employer or by a duly authorized representative of such employer, 
but only if such leave of absence was established to the satisfaction of 
the Board before July 1947; or
    (c) He or she was in the service of an employer after that date and 
before January 1946, in each of six calendar months, whether or not 
consecutive; or
    (d) Before that date he or she did not retire and was not retired or 
discharged from the service of the last employer by whom he or she was 
employed, but solely by reason of a physical or mental disability he or 
she ceased before August 29, 1935, to be in the service of such employer 
and thereafter remained continuously disabled until he or she attained 
age sixty-five or until August 1945; or
    (e) Solely for the reason stated in paragraph (c) of this section an 
employer by whom he or she was employed before August 29, 1935, did not 
on or after August 29, 1935, and before August 1945, call him or her to 
return to service, or if he or she were called to return to service he 
or she for such reason was unable to render service in six calendar 
months as provided in paragraph (b) of this section; or
    (f) He or she was on August 29, 1935, absent from the service of an 
employer by reason of a discharge which, within one year after the 
effective date thereof, was protested to an appropriate labor 
representative or to the employer, as wrongful, and which was followed 
within ten years of the effective date thereof by his or her 
reinstatement in good faith to his or her former

[[Page 140]]

service with all his or her seniority rights.



Sec. 204.4  Conditions which preclude an employment relation.

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



Sec. 204.5  Employment relation--deemed service.

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



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

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



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

    Service by an individual to a local lodge or division of a railway 
labor organization shall be creditable under the Railroad Retirement Act 
only if, prior to such service, and on or after August 29, 1935, such 
individual performed compensated service for a carrier employer under 
part 202 of this chapter or was in an employment relation to such a 
carrier employer under the rules set forth in Sec. 204.3 of this part.



PART 205--EMPLOYEE REPRESENTATIVE--Table of Contents




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

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

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



Sec. 205.1  Introduction.

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

[[Page 141]]

An employee representative is considered to be a covered employee under 
the provisions of the Railroad Retirement Act.



Sec. 205.2  Definition of employee representative.

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



Sec. 205.3  Factors considered in determining employee representative status.

    The following factors, among others, are considered by the Board in 
determining an individual's status as an employee representative:
    (a) The name of the last railroad or other employer under the Act by 
which the individual was employed, and the period of employment;
    (b) The present official name of the organization by which the 
individual is employed, as well as any other name(s) under which that 
organization operated previously;
    (c) The date on which the organization was founded;
    (d) The title of the position held by the individual within the 
organization, and the duties of said position;
    (e) The method by which the individual, or the person to whom he or 
she is regularly assigned or by whom he or she is regularly employed, 
was authorized to represent members of the organization in negotiating 
with their employers, the date on which the individual was so 
authorized, and the time period covered by said authorization;
    (f) The purpose or business of the organization as reflected by its 
constitution and by-laws;
    (g) The extent to which the organization is, and has been recognized 
as, representative of crafts or classes of employees in the railroad 
industry;
    (h) The extent to which the purposes and businesses of the 
organization are and have been to promote the interests of employees in 
the railroad industry as indicated by:
    (1) The specific employee group(s) represented; and
    (2) The proportion of members that are employed by railroad 
employers in relation to those members that are employed by non-railroad 
employers;
    (i) Whether the organization has been certified by the National 
Mediation Board as a representative of any class of employees of any 
company;
    (j) If the organization has not been certified as representative of 
any class of employees, the manner and method by which the organization 
determined that it was the duly authorized representative of such 
employees;
    (k) Whether the organization participates or is authorized to 
participate in the selection of labor members of the National Railroad 
Adjustment Board; and
    (l) Whether the organization was assisted by any carrier by 
railroad, express company, or sleeping car company, directly or 
indirectly, in its formation, in influencing employees to join the 
organization, financially, or in the collection of dues, fees, 
assessments, or any contributions payable to the organization.

[[Page 142]]



Sec. 205.4  Claiming status as an employee representative.

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

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



Sec. 205.5  Reports of an employee representative.

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

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



Sec. 205.6  Service of an employee representative.

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



Sec. 205.7  Termination of employee representative status.

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



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




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

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

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



Sec. 209.1  General.

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



Sec. 209.2  Duty to furnish information and records.

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

[[Page 143]]

or by imprisonment not exceeding one year, or both.

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

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



Sec. 209.3  Information regarding change in status.

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



Sec. 209.4  Employers' notice of death of employees.

    Each employer shall notify the Board immediately of the death of an 
employee who, prior to the employee's death, performed compensated 
service which has not been reported to the Board. The notice of death 
shall be made on the form prescribed by the Board and mailed to the 
Director of Research and Employment Accounts.

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



Sec. 209.5  Employers' supplemental reports of service and compensation.

    Each employer shall furnish the Board a report of the current year 
service and compensation of each employee who ceases work for the 
purpose of retiring under the provisions of the Railroad Retirement Act. 
The reports are to be made on the form prescribed by the Board and 
mailed to the address shown on the reverse side of the form.

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



Sec. 209.6  Employers' annual reports of creditable service and compensation.

    (a) Each year, on or before the last day of February, each employer 
is required to make an annual report of the creditable service and 
compensation of employees who performed compensated service in the 
preceding calendar year. The annual report shall include service and 
compensation previously furnished in supplemental reports and notices of 
death. Annual reports are to be prepared in accordance with the 
instructions issued by the Director of Research and Employment Accounts 
and mailed directly to that office. The reports may be made on magnetic 
tape, punch cards or the form prescribed by the Board as described in 
Sec. 200.2 of this chapter. The reports must be accompanied by a report 
indication/specification sheet prescribed by the Board as described in 
Sec. 200.2 of this chapter.
    (b) Employers who do not have creditable service and compensation to 
report shall advise the Director of Research and Employment Accounts in 
writing, that they have no creditable service and compensation to report 
for the previous calendar year.

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



Sec. 209.7  Employers' adjustment reports.

    (a) The Board may request employers to submit adjustments to correct 
employee accounts when:
    (1) Errors are detected in processing employers' annual report;
    (2) An employee shows that the amount of service or compensation 
reported by the employer to the employee's account was not correct; or
    (3) An employee shows that he or she should have been credited with 
service and compensation for a period for which the employer reported no 
service and compensation.
    (b) Employers may submit adjustment reports to:

[[Page 144]]

    (1) Correct service and compensation previously reported; and
    (2) Report service and compensation that was omittted from a 
previous report.
    (c) Employers submitting adjustment reports covering pay for time 
lost as an employee shall report this compensation as provided for in 
Sec. 211.3 of this chapter. Adjustment reports are to be prepared in 
accordance with the instructions issued by the Director of Research and 
Employment Accounts and mailed directly to that office. The reports may 
be made on magnetic tape, punch cards or the form prescribed by the 
Board as described in Sec. 200.2 of this chapter. Adjustment reports may 
be submitted to the Board each month but shall be summarized quarterly 
on the form prescribed by the Board as provided for in Sec. 209.8 of 
this part.

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



Sec. 209.8  Employers' quarterly summary reports of compensation adjustments.

    Each employer submitting compensation adjustment reports shall, on 
or by the last day of each quarter in which a compensation adjustment 
report is made, submit a summary report of the adjustments on the form 
prescribed by the Board as described in Sec. 200.2 of this chapter. 
Employers who do not make any adjustment reports in any month of a 
quarter shall not submit a summary report for that quarter.

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



Sec. 209.9  Terminated employers' reports.

    When an employer's status as an employer is terminated, a final 
report of creditable service and compensation shall be made. The final 
report shall be submitted to the Director of Research and Employment 
Accounts on or before the last day of the month following the final 
month for which there was compensated service. The report shall be 
completed as prescribed in Sec. 209.6(a) of this part and shall be 
marked Final Compensation Report.

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



Sec. 209.10  Employee representatives' reports.

    Individuals claiming status as an employee representative shall 
describe their duties as an employee representative on the form 
prescribed by the Board and submit the form to the Director of Research 
and Employment Accounts. If the duties described in the status report 
are approved by the Director of Research and Employment Accounts, status 
as an employee representative is granted. The individual is then advised 
that he or she is required to make an annual report of creditable 
Railroad Retirement Act compensation. The compensation report shall be 
made on the form prescribed by the Board and is to be mailed to the 
Director of Research and Employment Accounts each year, or or before the 
last day of February. When the employee representative's status is 
terminated, the last report of service and compensation shall be marked 
Final Compensation Report.

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



Sec. 209.11  Certificates of service months and compensation.

    (a) Each year the Board prepares certificates of service months and 
compensation, as described in Sec. 200.2 of this chapter, for employees 
who performed compensated service in the preceding calendar year. This 
certificate is the employee's record of the service and compensation 
credited to his or her account. The certificates are either mailed 
directly to employees or forwarded to employers for delivery to their 
employees. Certificates mailed directly to employees and returned to the 
Board as undeliverable, are forwarded to employers for distribution to 
employees. Employers are to distribute the certificates within 30 days 
after they are received, and those certificates which are undeliverable 
within 30 days are to be returned to the Board. Employees who for any 
reason do not receive a certificate may obtain one from the nearest 
Board district office or may write to the Director of Research and 
Employment Accounts requesting one. Employers may also obtain 
certificates from the Director of

[[Page 145]]

Research and Employment Accounts for their employees.
    (b) Employers currently receiving certificates for distribution to 
their employees, but who wish the Board to mail the certificates 
directly to the employees, shall each year, before May 1, submit the 
current addresses of all employees to the Director of Research and 
Employment Accounts. The address reports shall be submitted on magnetic 
tape or punch cards only, and prepared in accordance with the 
instructions issued by the Director of Research and Employment Accounts.



Sec. 209.12  Employers' gross earnings reports.

    (a) Each employer is required to report the gross earnings of a one-
percent sample group of railroad employees. The gross earnings sample is 
based on the earnings of employees whose social security numbers end 
with the digits 30. This report is used to determine:
    (1) Tax and benefit amounts involved in the Financial Interchange 
with the Social Security Administration and the Health Care Financing 
Administration; and
    (2) Estimated tax income accruing to the railroad retirement system 
in future periods.
    (b) Employers shall report for employees in the gross earnings 
sample the employee's gross earnings in a year, including both taxable 
and non-taxable compensation for the year. All employers shall submit 
reports annually, or they may submit such reports more frequently if 
they desire. Employers with 5,000 or more employees shall provide a 
monthly or quarterly breakdown of the year's earnings. Employers with 
less than 5,000 employees may submit an annual amount only, although a 
monthly or quarterly breakdown is preferrable. Gross earnings are to be 
counted for the same time period as used in determining the employer's 
annual report of creditable compensation. The reports are to be prepared 
in accordance with prescribed instructions and mailed to: U.S. Railroad 
Retirement Board, Bureau of Research and Employment Accounts.

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

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



Sec. 209.13  Miscellaneous pay reports.

    (a) Employers, insurance carriers or other parties paying 
miscellaneous pay, as defined in Sec. 211.11 of this chapter, shall 
furnish the Board an annual report of such pay before the last day of 
February of the calendar year following the year in which the payment 
was made.
    (b) Miscellaneous pay reports are to be filed in accordance with 
instructions issued by the Director of Research and Employment Accounts 
and are to be mailed directly to the Director. The reports may be made 
on magnetic tape or the form described in Sec. 200.2 of this chapter.
[58 FR 45250, Aug. 27, 1993]



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

    For any employee who is paid a separation payment, the employer must 
file a report of the amount of the separation allowance. This report 
shall be submitted to the Director of Research and Employment Accounts 
on or before the last day of the month following the end of the calendar 
quarter in which payment is made. The reports may be made on magnetic 
tape, punch cards or the form prescribed by the Board as described in 
Sec. 200.3(a)(5) of this chapter. The reports must be accompanied by a 
report indication/specification sheet prescribed by the Board as 
described in Sec. 200.3(a)(2)(ii) of this chapter.

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

[56 FR 1573, Jan. 16, 1991]



Sec. 209.15  Compensation reportable when paid.

    (a) General. In preparing a report required under this part, an 
employer may report compensation in the report

[[Page 146]]

required for the year in which the compensation was paid even though 
such compensation was earned by the employee in a previous year. If 
compensation is reported with respect to the year in which it was paid, 
it shall be credited by the Board to the employee in such year unless 
within the four year period provided in Sec. 211.15 of this chapter the 
employee requests that such compensation be credited to the year in 
which it was earned. If the employee makes such a request, and the 
Director of Research and Employment Accounts determines that the 
compensation should be credited to the year in which it was earned, the 
reporting employer must file an adjustment report as required by 
Sec. 209.7 of this part which reports such compensation in the year in 
which it was earned. The employee may revoke his or her request anytime 
prior to the filing of the adjustment report. Upon the Board's receipt 
of the adjustment report, the request becomes irrevocable.
    (b) Pay for time lost. Compensation which is pay for time lost, as 
provided in Sec. 211.3 of this chapter, shall be reported with respect 
to the period in which the time and compensation were lost. For example, 
if an employee is off work because of an on-the-job injury for a period 
of months in a given year and in a later year receives a payment from 
his or her employer to compensate for wages lost during the period of 
absence, the employer must, by way of adjustment provided for in 
Sec. 209.7 of this part, report the compensation with respect to the 
year in which the time and compensation were lost.
    (c) Separation allowance or severance pay. A separation allowance or 
severance payment shall be reported in accordance with Sec. 209.14 of 
this part.
    (d) Miscellaneous pay. Miscellaneous pay shall be reported in the 
year in which it was paid in accordance with instructions provided for 
in Sec. 209.13 of this part.
    (e) Vacation pay. Vacation pay may be reported in accordance with 
this section except that any payments made in the year following the 
year in which the employee resigns or is discharged shall be reported by 
way of adjustment under Sec. 209.7 of this part as paid in the year of 
resignation or discharge.
[58 FR 45250, Aug. 27, 1993]



Sec. 209.16  Disposal of payroll records.

    Employers may dispose of payroll records for periods subsequent to 
1936, provided that the payroll records are more than five years old and 
that there is no dispute pending pertaining to the compensation reported 
for the period of those records.
[61 FR 31395, June 20, 1996]



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

    Payroll records of employers which have permanently ceased 
operations may be accepted in lieu of prescribed reports provided that 
there is no official of the employer available to prepare and certify to 
the accuracy of such reports and, provided further that any employer and 
employee tax liability incurred under the Railroad Retirement Tax Act 
has been discharged.
[61 FR 31395, June 20, 1996]



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




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

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



Sec. 210.1  General.

    An individual's entitlement to benefits and the amount of benefits 
payable under the Railroad Retirement Act are determined based, in part, 
on the individual's years of service. This part defines what the term 
service means under the Railroad Retirement Act and sets forth what 
types of service are creditable under that Act.
[49 FR 46731, Nov. 28, 1984]



Sec. 210.2  Definition of service.

    Service means a period of time for which an employee receives 
payment

[[Page 147]]

from a railroad employer for the performance of work; or a period of 
time for which an employee receives compensation which is paid for time 
lost as an employee; or a period of time credited to an employee for 
creditable military service as defined in part 212 of this chapter. 
Service shall also include deemed months of service as provided under 
Sec. 210.3(b) of this chapter and any month in which an employee is 
credited with compensation under Sec. 211.12 of this chapter based on 
benefits paid under title VII of the Regional Rail Reorganization Act of 
1973.
[53 FR 17182, May 16, 1988]



Sec. 210.3  Month of service.

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


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

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

(1) Enter the annual maximum for non-tier I compensation for the 
calendar year....................................................$29,700
(2) Divide line (1) by 12
  $29,70012...............................................$2,475
(3) Enter the employee's reported months of service for the calendar 
year...................................................................9
(4) Multiply line (2) by line (3) $2,475 x 9.....................$22,275
(5) Enter the employee's non-tier I

[[Page 148]]

compensation for the calendar year...............................$20,000
(6) Subtract line (4) from line (5). Enter the result (but not less than 
zero). This is the employee's excess non-tier I compensation for the 
calendar year.
  $20,000-$22,275......................................................0

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

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

(1) Enter the annual maximum for non-tier I compensation for the 
calendar year....................................................$29,700
(2) Divide line (1) by 12
  $29,70012...............................................$2,475
(3) Enter the employee's reported months of service for the calendar 
year...................................................................9
(4) Multiply line (2) by line (3) $2,475 x 9.....................$22,275
(5) Enter the employee's non-tier I compensation for the calendar year 
                                                                 $25,000
(6) Subtract line (4) from line (5). Enter the result (but not less than 
zero). This is the employee's excess non-tier I compensation for the 
calendar year.
  $25,000-$22,275.................................................$2,725

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

[GRAPHIC] [TIFF OMITTED] TC14NO91.105

[GRAPHIC] [TIFF OMITTED] TC14NO91.106


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

Employee B is credited with 11 months of service for 1985; nine reported 
months (January through September) and two deemed months (October and 
November).
[53 FR 17182, May 16, 1988]



Sec. 210.4  Year of service.

    (a) A year of service is twelve months of reported or deemed 
service, consecutive or not consecutive. A fraction of a year of service 
is taken at its actual value.
    (b) The term years of service means the total number of years an 
employee is credited with service as defined in Sec. 210.2 of this part.
[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17183, May 16, 1988]



Sec. 210.5  Creditability of service.

    (a) Service before January 1, 1937. (1) Service performed before 
January 1, 1937, is called prior service. Prior service is creditable 
under the Railroad Retirement Act if the employee had an employment 
relation with a railroad

[[Page 149]]

employer on August 29, 1935. Prior service may be combined with 
creditable service performed after December 31, 1936, to make the 
employee's total years of service equal, but not exceed, 30 years (360 
months).
    (2) An employee is considered to have an employment relation on 
August 29, 1935, if:
    (i) The employee was on that date in active railroad service for an 
employer; or
    (ii) The employee was on that date on a leave of absence expressly 
granted by the employer or the employer's authorized representative, but 
only if such leave of absence was established to the satisfaction of the 
Board before July 1947; or
    (iii) The employee had 6 months of active railroad service for an 
employer during the period August 29, 1935, through December 31, 1945; 
or
    (iv) The employee was not in the service of an employer by reason of 
a mental or physical disability from which the employee was continuously 
disabled until the employee attained age 65 or until August 1945; or
    (v) Solely for the reason stated in paragraph (a)(2)(iv) of this 
section the employee was not recalled to active service before August 
1945; or
    (vi) If the employee was recalled, the employee was unable to 
perform 6 months of service during the period August 29, 1935, through 
December 31, 1945, solely for the reason stated in paragraph (a)(2)(iv) 
of this section.
    (b) Service after December 31, 1936. All service performed after 
December 31, 1936, is creditable. If an employee has service both before 
January 1, 1937, and after December 31, 1936, all service after December 
31, 1936, is credited first; if this service totals less than 30 years 
(360 months), then the service before January 1, 1937, is included but 
only up to the amount sufficient to make the total years of service 
equal 30. Where the years of service include only part of the service 
performed before January 1, 1937, the part included is taken in reverse 
order beginning with the last calendar month of the service.
    (c) Service after December 31, 1936, to a local lodge or division. 
Services performed for a local lodge or division of a railway labor 
organization is creditable if the employee is credited with compensation 
as defined in Sec. 211.2 of this chapter.
    (d) Service based on time lost. Any month or any part of a month 
during which an employee performed no active service but received pay 
for time lost as an employee is counted as a month of service. Service 
for time lost as an employee shall be credited as provided for in 
Sec. 211.3 of this chapter.
    (e) Place of performance of service. (1) Service performed for an 
employer who conducts the principal part of its business with the United 
States is creditable. However, service performed for an employer who 
conducts the principal part of its business outside the United States is 
creditable only when the service is performed in the United States. If 
an employer, other than a local lodge or division or a general committee 
of a railway labor organization, does not conduct the principal part of 
its business within the United States, the service performed outside the 
United States for that employer is not creditable.
    (2) Service performed outside the United States by an employee who 
is not a citizen or resident of the United States is not creditable if 
the employer is required under the laws of that place to hire, in whole 
or in part, only citizens or residents of that place.
    (f) Service as employee representative. Service performed as an 
employee representative is creditable in the same manner and to the same 
extent as service performed for an employer.
    (g) Service performed after the beginning date of an annuity. 
Service performed after the beginning date of an annuity shall be used 
in the annuity recomputation.
[49 FR 46731, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988]



Sec. 210.6  Service credited for creditable military service.

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

[[Page 150]]

with reported or deemed service for an employer for the same month(s).
[53 FR 17184, May 16, 1988]



Sec. 210.7  Verification of service claimed.

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

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

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



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




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

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

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



Sec. 211.1  General.

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

[[Page 151]]

determining what payments are creditable as compensation under the 
Railroad Retirement Act.



Sec. 211.2  Definition of compensation.

    (a) The term compensation means any form of payment made to an 
individual for services rendered as an employee for an employer; 
services performed as an employee representative; and any separation or 
subsistence allowance paid under any benefit schedule provided in 
conformance with title VII of the Regional Rail Reorganization Act of 
1973 and any termination allowance paid under section 702 of that Act. 
Compensation may be paid as money, a commodity, a service or a 
privilege. However, if an employee is to be paid in any form other than 
money, the employer and employee must agree before the service is 
performed upon the following:
    (1) The value of the commodity, service or privilege; and
    (2) That the amount agreed upon to be paid may be paid in the form 
of the commodity, service or privilege.
    (b) Compensation includes, but is not limited to, the following:
    (1) Salary, wages and bonuses;
    (2) Pay for time lost as an employee;
    (3) Cash tips of $20 or more received in a calendar month;
    (4) Vacation pay;
    (5) Military pay as determined in Sec. 211.7 of this part;
    (6) Displacement allowances as provided for in Sec. 211.8 of this 
part;
    (7) Dismissal allowances as provided for in Sec. 211.9 of this part;
    (8) Separation allowances as provided for in Sec. 211.10 of this 
part;
    (9) Miscellaneous pay as provided for in Sec. 211.11 of this part;
    (10) Payments made under title VII of the Regional Rail 
Reorganization Act of 1973 as provided for in Sec. 211.12 of this part.
    (11) Payments paid to an employee or employee representative which 
are subject to tax under section 3201(a) or 3211(a) of the Internal 
Revenue Code of 1954 are creditable as compensation under the Railroad 
Retirement Act for purposes of computation of benefits under sections 
3(a)(1), 3(f)(3), 4(a)(1) and 4(f)(1).
    (12) Voluntary payments of any tax by an employer, without deducting 
such tax from the employee's salary.
    (13) Payments made by an employer with respect to a deceased 
employee except as provided for in Sec. 211.13 of this part.
    (c) Compensation does not include:
    (1) Tips, except as provided in paragraph (b)(3) of this section;
    (2) Payments for services performed by a nonresident alien for the 
period the individual is temporarily present in the United States as a 
nonimmigrant under subparagraph (F) or (J) of section 1101(a)(15) of 
title 8, U.S.C. and which is performed to carry out the purpose 
specified in subparagraph (F) or (J), as the case may be;
    (3) Remuneration paid in certain cases, as described below, for 
services performed for a local lodge or division of a railway labor 
organization.
    (i) Remuneration for services rendered for a local lodge or division 
of a railway labor organization which was earned after 1936 and prior to 
April 1, 1940, shall not be creditable as compensation in a month unless 
taxes with respect to such remuneration were paid under the Railroad 
Retirement Tax Act prior to July 1, 1940.
    (ii) Remuneration for services rendered for a local lodge or 
division of a railway labor organization which was earned after March 
31, 1940, and prior to January 1, 1975, shall not be creditable as 
compensation in a month if the amount of such remuneration earned in the 
month is less than $3.00.
    (iii) Remuneration for services rendered for a local lodge or 
division of a railway labor organization which was earned after December 
31, 1974, shall not be creditable as compensation in a month if the 
amount of such remuneration earned in the month is less than $25.00.
    (4) Payments for service as a delegate to a national or 
international convention of a railway-labor-organization employer if the 
individual rendering the service has not previously rendered service, 
other than as a delegate, which may be included in the individual's 
years of service;
    (5) Except as provided in Sec. 211.2(b)(11), the amount of any 
payment (including any amount paid by an employer for

[[Page 152]]

insurance or annuities, or into a fund, to provide for any such payment) 
made to, or on behalf of, an employee or any of the employee's 
dependents under a plan or system established by an employer which makes 
provisions for employees generally (or for employees generally and their 
dependents), or for a class or classes of employees (or for a class or 
classes of employees and their dependents), on account of sickness or 
accident disability, or medical, or hospitalization expenses in 
connection with sickness or accident disability; and
    (6) Any amount paid specifically--either as an advance, as 
reimbursement or allowance--for traveling or other bona fide and 
necessary expenses incurred, or reasonably expected to be incurred in 
the business of the employer, provided the payment is identified by the 
employer either by a separate payment or by specifically indicating the 
separate amounts where both wages and expense reimbursement or allowance 
are combined in a single payment.
[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17184, May 16, 1988; 58 
FR 45251, Aug. 27, 1993]



Sec. 211.3  Compensation paid for time lost.

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



Sec. 211.4  Vacation pay.

    Payments made to an employee with respect to vacation or holidays 
shall be considered creditable compensation whether or not the employee 
takes the vacation or holiday.
[58 FR 45251, Aug. 27, 1993]



Sec. 211.5  Employee representative compensation.

    All payments made by a railway labor organization to an individual 
who is an employee representative as a result of the position or office 
he occupies with such organization are creditable as compensation, 
including payments made for services not connected with the 
representation of employees, except that payments in excess of the 
annual maximum amount will not be credited.
[53 FR 17184, May 16, 1988]



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

    A waiver or refund or organization dues which was based solely on 
consideration for membership in the organization is considered 
creditable compensation if there is proof that the waiver or refund was 
intended to be, and was accepted as, a dismissal of an obligation of the 
organization to compensate the employee for services rendered.
[53 FR 17184, May 16, 1988]



Sec. 211.7  Compensation credited for creditable military service.

    In determining the creditable compensation of an employee, the 
following amounts shall be credited for each month of military service, 
provided the employee's combined monthly railroad and military 
compensation does not exceed the maximum creditable amount:

[[Page 153]]

    (a) $160 for each calendar month before 1968;
    (b) $260 for each calendar month after 1967 and before 1975;
    (c) For years after 1974, the actual military earnings reported as 
wages under the Social Security Act.
[53 FR 17184, May 16, 1988]



Sec. 211.8  Displacement allowance.

    An allowance paid to an employee because he has been displaced to a 
lower paying position is creditable compensation.
[58 FR 45251, Aug. 27, 1993]



Sec. 211.9  Dismissal allowance.

    Dismissal allowances paid to an employee under a protective labor 
agreement that covers the amounts paid for specific periods of time are 
creditable as compensation under the Railroad Retirement Act, provided 
the employee has not severed his or her employee-employer relationship.
[53 FR 17184, May 16, 1988, as amended at 58 FR 45251, Aug. 27, 1993]



Sec. 211.10  Separation allowance or severance pay.

    Separation or severance payments are creditable compensation except 
that no part of such payment shall be considered creditable compensation 
to any period after the employee has severed his or her employer-
employee relationship except as provided for in Sec. 211.11 of this 
part.
[58 FR 45251, Aug. 27, 1993]



Sec. 211.11  Miscellaneous pay.

    Any payment made to an employee by an employer which is excluded 
from compensation under the Railroad Retirement Act, but which is 
subject to taxes under the Railroad Retirement Tax Act, shall be 
considered compensation for purposes of this part but only for the 
limited purpose of computing the portion of the annuity computed under 
section 3(a), 4(a), or 4(f) of the Railroad Retirement Act (commonly 
called the tier I component).
[58 FR 45251, Aug. 27, 1993]



Sec. 211.12  Compensation credited for title VII benefits.

    Payments made to an employee under title VII of the Regional Rail 
Reorganization Act of 1973 are creditable as compensation only for the 
month in which the employee first filed an application for benefits 
under that Act. The compensation to be credited cannot exceed the 
monthly creditable amounts defined in Sec. 211.13(a) of this part for 
compensation earned prior to 1985 or the annual creditable amount 
defined in Sec. 211.13(b) of this part for compensation earned after 
1984.
[53 FR 17185, May 16, 1988]



Sec. 211.13  Payments made after death.

    Payments made by an employer with respect to a deceased employee but 
paid after the calendar year of the employee's death to the employee's 
survivors or estate are not creditable compensation.
[58 FR 45251, Aug. 27, 1993]



Sec. 211.14  Maximum creditable compensation.

    Maximum creditable compensation for calendar years after 1984 is the 
maximum annual taxable wage base defined in section 3231(e)(2)(B) of the 
Internal Revenue Code of 1986. In November of each calendar year the 
Director of Research and Employment Accounts shall notify each employer 
of the amount of maximum creditable compensation applicable to the 
following calendar year.
[58 FR 45251, Aug. 27, 1993]



Sec. 211.15  Verification of compensation claimed.

    Compensation claimed by an employee, which is not credited in the 
records of the Board, must be verified to the satisfaction of the Board 
before it may be credited. An employee's claim to compensation not 
credited shall be processed as follows:
    (a) If the compensation claimed is in excess of the maximum 
creditable amounts defined in Sec. 211.13 of this part, the Director of 
the Bureau of Research and Employment Accounts shall inform the employee 
that the compensation claimed is not creditable.

[[Page 154]]

    (b) If the compensation is claimed within four years from the date 
the compensation was required to be reported to the Board as prescribed 
in Sec. 209.6 of this chapter, the Director of Research and Employment 
Accounts shall contact the employer requesting a review of their 
records, and if the employee's claim is correct, the employer will 
submit an adjustment crediting the employee with the compensation 
claimed. If the employer states that the employee's claim is incorrect, 
the employee will be requested to submit check stubs to show railroad 
retirement taxes withheld from the compensation claimed. Upon receipt of 
the check stubs, the proof will be sent to the employer along with a 
request for the employer to submit an adjustment crediting the employee 
with the compensation claimed.
[49 FR 46732, Nov. 28, 1984, as amended at 53 FR 17185, May 16, 1988. 
Redesignated at 58 FR 45251, Aug. 27, 1993]



Sec. 211.16  Finality of records of compensation.

    (a) Time limit for corrections to records of compensation. The 
Board's record of the compensation reported as paid to an employee for a 
given period shall be conclusive as to amount, or if no compensation was 
reported for such period, then as to the employee's having received no 
compensation for such period, unless the error in the amount of 
compensation or the failure to make return of the compensation is called 
to the attention of the Board within four years after the date on which 
the compensation was required to be reported to the Board as provided 
for in Sec. 209.6 of this chapter.
    (b) Correction after 4 years. (1) The Board may correct a report of 
compensation after the time limit set forth in paragraph (a) of this 
section where the compensation was posted or not posted as the result of 
fraud on the part of the employer.
    (2) Subject to paragraph (c) of this section, the Board may correct 
a report of compensation after the time limit set forth in paragraph (a) 
of this section for one of the following reasons:
    (i) Where the compensation was posted for the wrong person or the 
wrong period;
    (ii) Where the earnings were erroneously reported to the Social 
Security Administration in the good faith belief by the employer or 
employee that such earnings were not covered under the Railroad 
Retirement Act and there is a final decision of the Board under part 259 
of this chapter that such employer or employee was covered under the 
Railroad Retirement Act during the period in which the earnings were 
paid;
    (iii) Where a determination pertaining to the coverage under the 
Railroad Retirement Act of an individual, partnership, or company as an 
employer, is retroactive; or
    (iv) Where a record of compensation could not otherwise be corrected 
under this part and where in the judgment of the three-member Board that 
heads the Railroad Retirement Board failure to make a correction would 
be inequitable.
    (c) Limitation on crediting service. (1) Except as provided in 
paragraph (b)(1) of this section, no employee may be credited with 
service months or tier II compensation beyond the four year period 
referred to in paragraph (a) of this section unless the employee 
establishes to the satisfaction of the Board that all employment taxes 
imposed by sections 3201, 3211, and 3221 of title 26 of the Internal 
Revenue Code have been paid with respect to the compensation and 
service.
    (2) The limitation on the creditability of service months and tier 
II compensation in paragraph (c)(1) of this section shall not affect the 
creditability, for purposes of computing the tier I component of a 
railroad retirement annuity, of compensation payments with respect to 
which taxes have been paid under either the Railroad Retirement Tax Act 
or the Federal Insurance Contributions Act.
[62 FR 3790, Jan. 27, 1997]



PART 212--MILITARY SERVICE--Table of Contents




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


[[Page 155]]


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

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



Sec. 212.1  General.

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



Sec. 212.2  Military service defined.

    Military service is the performance of active service by an 
individual in the armed forces of the United States. An individual is 
considered to be in active military service when commissioned or 
enrolled in the land, naval or air forces of the United States until 
resignation or discharge therefrom. The service of an individual in any 
reserve component of the land, naval or air forces of the United States, 
during any period in which ordered to active duty, even though less than 
thirty days, is also considered active service. However, service in the 
Army Specialist Corps and the Merchant Marine is not creditable under 
the Railroad Retirement Act.



Sec. 212.3  Crediting of military service.

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



Sec. 212.4  Periods of creditable military service.

    In order for military service to be considered to be creditable 
under the Railroad Retirement Act, it must have been performed during 
one of the following periods:
    (a) April 21, 1898, through August 13, 1898--Spanish American War;
    (b) February 4, 1899, through April 27, 1902--Philippine 
Insurrection;
    (c) May 9, 1916, through February 5, 1917--Mexican Border 
Disturbances;
    (d) April 6, 1917, through November 11, 1918--World War I;
    (e) September 8, 1939, through June 14, 1948--National Emergency and 
World War II. Individuals required to continue in service after this 
period may be credited with the service if:
    (1) They were in military service on December 31, 1946, or
    (2) They were required to remain in military service involuntarily 
after December 31, 1946;
    (f) June 15, 1948, through December 15, 1950. This service is 
creditable if:
    (1) Entered into involuntarily; or
    (2) Entered into voluntarily, but only if:
    (i) The individual who seeks credit for this service performs 
service as an employee for an employer as defined in part 202 of this 
chapter either in the year of his or her release from active military 
service or in the year following such release, and;
    (ii) The individual does not engage in any employment not covered by 
part 203 between his or her release from active military service and his 
or her commencement of service for an employer.
    (g) December 16, 1950, through September 14, 1978--National 
Emergency.
[49 FR 46734, Nov. 28, 1984, as amended at 55 FR 20454, May 17, 1990]



Sec. 212.5  Verification of military service.

    Military service may be verified by the following proof:
    (a) The original certificate of discharge or release to inactive 
duty from a branch of the armed forces that shows the beginning and 
ending dates of the individual's active military service; or a certified 
copy of the original certificate made by the Federal, State,

[[Page 156]]

county or municipal agency or department in which the original 
certificate is recorded; or
    (b) A certificate from a branch of the armed forces that shows the 
beginning and ending dates of the individual's active military service; 
or
    (c) A photocopy of the document described in paragraph (a) or (b) of 
this section.



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

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



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




                           Subpart A--General

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

        Subpart B--Current Connection With the Railroad Industry

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

          Subpart C--Railroad and Last Non-Railroad Employment

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

                       Subpart D--Employee Annuity

216.30  General.
216.31  Who is eligible for an age annuity.
216.32  Who is eligible for a disability annuity.

[[Page 157]]

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

                     Subpart E--Supplemental Annuity

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

             Subpart F--Spouse and Divorced Spouse Annuities

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

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

216.60  General.
216.61  Who is eligible for an annuity as a widow(er).
216.62  Who is eligible for an annuity as a surviving divorced spouse.
216.63  Who is eligible for an annuity as a remarried widow(er).
216.64  What is required for payment.
216.65  Who is an employee's widow(er).
216.66  Who is an employee's surviving divorced spouse.
216.67  ``Child in care.''
216.68  Disability period for widow(er), surviving divorced spouse, or 
          remarried widow(er).

                       Subpart H--Child's Annuity

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

                       Subpart I--Parent's Annuity

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

            Subpart J--Eligibility for More Than One Annuity

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

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

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



                           Subpart A--General



Sec. 216.1  Introduction.

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



Sec. 216.2  Definitions.

    Except as otherwise expressly noted, as used in this part--
    Age means an individual's age on the day preceding the anniversary 
date of his or her birth.
    Annuity means a payment due an entitled individual for a calendar 
month and made to him or her on the first day of the following month.
    Apply means to sign a form or statement that the Railroad Retirement 
Board accepts as an application for benefits under the rules set out in 
part 217 of this chapter.
    Attainment of age means that an individual attains a given age on 
the first moment of the day preceding the anniversary date of his or her 
birth corresponding to such numerical age.
    Board means the Railroad Retirement Board.

[[Page 158]]

    Claimant means an individual who files an annuity application or for 
whom an annuity application is filed.
    Eligible means that an individual meets all the requirements for 
payment of an annuity but has not yet applied for one.
    Employee means an individual who is or has been in the service of an 
employer as here defined.
    Employer means a company, individual, or other entity determined to 
be a covered employer under the Railroad Retirement Act as provided by 
part 202 of this chapter.
    Entitled means that an individual has applied for and has 
established his or her rights to benefits.
    Railroad Retirement Act means the Railroad Retirement Act of 1974, 
as amended.
    Re-entitled annuity means an annuity to which an individual becomes 
entitled after an earlier-awarded annuity has been terminated. A re-
entitled annuity is usually awarded on the basis of different factors of 
eligibility from the initial annuity, and may be awarded without the 
filing of another application.
    Retirement age means, with respect to an employee who attains age 62 
before January 1, 2000 (age 60 in the case of a widow(er), remarried 
widow(er) or surviving divorced spouse) age 65. For an employee who 
attains age 62 (or age 60 in the case of a widow(er), remarried 
widow(er), or surviving divorced spouse) after December 31, 1999, 
retirement age means the age provided for in section 216(1) of the 
Social Security Act.
    Social Security Act means the Social Security Act as amended.
    Tier I benefit means the benefit component calculated using Social 
Security Act formulas and based upon earnings covered under both the 
Railroad Retirement Act and the Social Security Act.
    Tier II benefit means the benefit component calculated under a 
formula found in the Railroad Retirement Act and based only upon 
earnings and service in the railroad industry.
    Year of service means 12 calendar months, consecutive or otherwise, 
of service creditable to an employee as described in part 210 of this 
chapter.



Sec. 216.3  Other regulations related to this part.

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



        Subpart B--Current Connection With the Railroad Industry



Sec. 216.11  General.

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



Sec. 216.12  When current connection is required.

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

[[Page 159]]

    (b) A current connection which was established when an employee's 
annuity began is effective for:
    (1) Any annuity under this part for which the employee later becomes 
eligible; and
    (2) Any survivor annuity under this part or a lump-sum death payment 
under part 234 of this chapter.



Sec. 216.13  Regular current connection test.

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



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

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



Sec. 216.15  Special current connection test.

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

[[Page 160]]

they do generally in the railroad industry.
    (f) For supplemental annuities only. An additional special current 
connection test is required for an individual who was receiving a 
disability annuity which terminated due to the individual's recovery 
from disability. If the individual becomes entitled to a new annuity, a 
new current connection test based on the new annuity beginning date must 
be made. This test is made using the rules contained in Secs. 216.13 and 
216.17.



Sec. 216.16  What is regular non-railroad employment.

    (a) Regular non-railroad employment is full or part-time employment 
for pay.
    (b) Regular non-railroad employment does not include any of the 
following:
    (1) Self-employment;
    (2) Temporary work provided as relief by an agency of a Federal, 
State, or local government;
    (3) Service inside or outside the United States for an employer 
under the Railroad Retirement Act, even if the employer does not conduct 
the main part of its business in the United States;
    (4) Involuntary military service not creditable under the Railroad 
Retirement Act;
    (5) Employment with the following agencies of the United States 
Government:
    (i) Department of Transportation;
    (ii) Interstate Commerce Commission;
    (iii) National Mediation Board;
    (iv) Railroad Retirement Board;
    (v) National Transportation Safety Board; or
    (vi) Surface Transportation Board.
    (6) Employment entered into after early retirement by an employee 
who is receiving an annuity under Conrail's voluntary annuity program. 
This program is provided under the Staggers Rail Act of 1980 (Pub. L. 
96-448); or
    (7) Employment with the Alaska Railroad so long as it is an 
instrumentality of the State of Alaska.
[56 FR 28692, June 24, 1991, as amended at 62 FR 11324, Mar. 12, 1997]



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

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



          Subpart C--Railroad and Last Non-Railroad Employment



Sec. 216.21  General.

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

[[Page 161]]

divorced spouse, remarried widow or widower, child, or parent for any 
month such individual works for pay for a railroad employer.



Sec. 216.22  Work as an employee which affects payment.

    (a) Work for a railroad employer. Work for pay as an employee of a 
railroad employer always prevents payment of an annuity.
    (b) Work for last non-railroad employer. Work for pay in the service 
of the last non-railroad employer by whom an individual is employed will 
reduce the amount of the tier II benefit of the employee, spouse and 
supplemental annuity as provided in part 230 of this chapter. An 
individual's last non-railroad employer is:
    (1) Any non-railroad employer from whom the individual last resigned 
(in point of time) in order to receive an annuity; and
    (2) Any additional non-railroad employer from whom the individual 
resigned in order to have an annuity become payable. Employment which an 
individual stops within 6 months of the date on which the individual 
files for an annuity will be presumed in the absence of evidence to the 
contrary to be service from which the individual resigned in order to 
receive an annuity.
    (c) Corporate officers. An officer of a corporation will be 
considered to be an employee of the corporation. A director of a 
corporation acting solely in his or her capacity as such director is not 
an employee of the corporation.



Sec. 216.23  Work which does not affect eligibility.

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

[[Page 162]]

services into the business operations of an employer generally shows 
that the individual is subject to direction and control. When the 
success or continuation of a business depends to an appreciable degree 
upon the performance of certain services, the individuals who perform 
those services must necessarily be subject to a certain amount of 
control by the owner of the business.
    (4) Services rendered personally. A requirement that an individual 
personally work for the employer indicates that the employer is 
interested in the methods as well as the results, and that the employer 
intends to control the result by controlling who does the work.
    (5) Hiring, supervising, and payment of assistants. An employer 
generally hires, supervises, and pays assistants. An individual who 
hires, supervises, and pays other workers at the direction of the 
employer may be an employee acting as a representative of the employer. 
However, if an individual hires, supervises, and pays his or her own 
assistants pursuant to a contract under which the individual agrees to 
provide materials and labor and under which the individual is 
responsible only for the attainment of a result, this factor indicates 
an independent contractor status.
    (6) Continuing work relationship. A work relationship between an 
individual and an employer which continues over time indicates that the 
individual is an employee. A relationship may continue if the individual 
works at frequently recurring, though somewhat irregular intervals, 
either on call of the employer or when work is available.
    (7) Set hours of work. A requirement that an individual work for an 
employer during a specified period of the day, week, month or year, or 
for a specified number of hours daily indicates that the individual is 
an employee. An individual whose occupation renders fixed hours 
impractical may be an employee if required by the employer to work at 
certain times.
    (8) Full time required. A requirement that an individual devote full 
time to the employer's business indicates that the individual is an 
employee. What full time means may vary with the intent of the parties, 
the nature of the occupation, and customs in the locality. Full-time 
work may be required indirectly even though not specified in writing or 
orally. An individual required to produce a minimum volume of business 
for an employer may be compelled to devote full time to producing the 
work. Prohibiting work for any other employer may require an individual 
to work full time to earn a living However, part-time work performed on 
a regular basis, or on call of the employer, or when work is available, 
may also render an individual an employee.
    (9) Working on employer's premises. Working on the employer's 
premises may indicate that an individual is an employee where by nature 
the work could be done elsewhere, because the employer's place of 
business is physically within the employer's direction and supervision. 
Desk space, telephone, and stenographic services provided by an employer 
place the worker within the employer's direction and supervision unless 
the worker has the option not to use these facilities. Work done off the 
employer's premises does not by itself indicate that the worker is not 
an employee because some occupations require that work be performed away 
from the premises of the employer. Control over the place of work is 
indicated when the person or persons for whom the services are performed 
have the right to compel the worker to travel a designated route, to 
canvass a territory within a certain time, or to work at specific places 
as required.
    (10) Order or sequence set. Performing tasks in the order or 
sequence set by the employer indicates that the worker is an employee. 
Often, because of the nature of an occupation, the person or persons for 
whom the services are performed do not set the order of the services or 
set the order infrequently. It is sufficient to show control, however, 
if such person or persons retain the right to do so.
    (11) Oral or written reports. Regular oral or written reports 
submitted to the employer indicate that the worker is an employee, 
compelled to account to the employer for his or her actions.
    (12) Payment by hour, week, month. Payment at a fixed rate per hour, 
week, or month indicates that an individual is an employee. Payment by

[[Page 163]]

commission with a guaranteed minimum salary, or by a drawing account at 
stated intervals with no requirement to repay amounts which exceed the 
individual's earnings, also indicates that an individual is an employee. 
Payment in a lump sum for a completed job indicates that an individual 
is self-employed. The lump sum may be computed by the number of hours 
required to do the job at a fixed hourly rate, or by weekly or monthly 
installments toward a lump sum agreed upon in advance as the total cost. 
Payment made on a straight commission basis generally indicates that the 
worker is an independent contractor.
    (13) Payment of business and/or traveling expenses. Payment by the 
employer of expenses which an individual incurs in connection with the 
employer's business indicates that the individual is an employee.
    (14) Furnishing of tools and materials. The fact that the person or 
persons for whom the services are performed furnish significant tools, 
materials, and other equipment tends to show the existence of an 
employer-employee relationship.
    (15) Investment in facilities. If the worker invests in facilities 
which are used by the worker in performing services and which are not 
typically maintained by employees, such as an office rented by the 
worker from a party unrelated to the worker or to the employer, this 
factor tends to indicate that the worker is an independent contractor. 
On the other hand, if all facilities necessary to the work which an 
individual performs are furnished without charge by the employer, this 
factor indicates the existence of an employer-employee relationship. 
Facilities include equipment or premises necessary for the work, other 
than items such as tools, instruments, and clothing which may be 
commonly provided by an employee in a particular trade.
    (16) Realization of profit or loss. An individual not in a position 
to realize a profit or suffer a loss as a result of work performed for 
an employer is an employee. An individual has an opportunity for profit 
or loss if he or she:
    (i) Hires, directs, and pays assistants;
    (ii) Has his or her own office, equipment, materials, or other 
facilities for doing the work;
    (iii) Has continuing and recurring liabilities or obligations, and 
success or failure depends on the relation of receipts to expenditures; 
or
    (iv) Agrees to perform specific jobs for prices agreed upon in 
advance and pays expenses incurred in connection with the work.
    (17) Working for more than one firm at a time. If a worker performs 
more than de minimus services for a number of unrelated persons or firms 
at the same time, this factor generally indicates that the worker is an 
independent contractor. However, a worker who performs services for more 
than one person may be an employee of each of the persons, especially 
where such persons are part of the same service arrangement.
    (18) Making service available to the general public. The fact that 
an individual makes his or her services available to the general public 
on a regular and consistent basis rather than to one employer indicates 
that the individual is self-employed rather than an employee of any one 
firm. An individual may make services available to the public by working 
from his or her own office with assistants, from his or her own home, by 
holding business licenses, by a listing in a business directory, or by 
advertising.
    (19) Employer's right to discharge. The right to discharge a worker 
is a factor which indicates that the worker is an employee and the 
person who possesses the right is an employer. An employer exercises 
control through the threat of dismissal, which causes the worker to obey 
the employer's instructions. An employer's right to discharge exists 
even if it is restricted due to a collective bargaining agreement. An 
employer ordinarily cannot end a relationship without incurring 
liability with a self-employed individual who meets contract 
specifications.
    (20) Employee's right to terminate. The fact that an individual has 
the right to end his or her relationship with an employer at any time 
without incurring liability for work to be performed indicates that the 
individual is an employee. A self-employed individual is

[[Page 164]]

legally obligated to satisfactorily complete a specific job.



Sec. 216.24  Relinquishment of rights to return to work.

    (a) What return to work rights must be given up. Before an 
individual may receive an annuity based on age, he or she must give up 
any seniority or other rights to return to work for any railroad 
employer.
    (b) When right to return to work is ended. An individual's right to 
return to work for a railroad employer is ended whenever any of the 
following events occur:
    (1) The employer reports to the Board that the individual no longer 
has the right;
    (2) The individual or an authorized agent of that individual gives 
the employer an oral or written notice of the individual's wish to give 
up that right and:
    (i) The individual certifies to the Board that the right has been 
given up;
    (ii) The Board notifies the employer of the individual's 
certification; and
    (iii) The employer either confirms the individual's right has been 
given up or fails to reply within 10 days following the day the Board 
mailed the notice to the employer;
    (3) An event occurs which under the established rules or practices 
of the employer automatically ends that right;
    (4) The employer or the individual or both take an action which 
clearly and positively ends that right;
    (5) The individual never had that right and permanently stops 
working;
    (6) The Board gives up that right for the individual, having been 
authorized to do so by the individual;
    (7) The individual dies; or
    (8) The individual signs a statement that he or she gives up all 
rights to return to work in order to receive a separation allowance or 
severance pay.

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



                       Subpart D--Employee Annuity



Sec. 216.30  General.

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



Sec. 216.31  Who is eligible for an age annuity.

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

[[Page 165]]

converted to an age annuity beginning with the month in which he or she 
attains retirement age.



Sec. 216.32  Who is eligible for a disability annuity.

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



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

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

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



                     Subpart E--Supplemental Annuity



Sec. 216.40  General.

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



Sec. 216.41  Who is entitled to a supplemental annuity.

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

[[Page 166]]

is awarded an annuity on or after July 1, 1974.



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

    (a) What is a private railroad pension. The Board determines whether 
a pension established by a railroad employer is a private pension that 
will cause a reduction in the employee's supplemental annuity. A private 
pension for purposes of this subpart is a plan that:
    (1) Is a written plan or arrangement which is communicated to the 
employees to whom it applies;
    (2) Is established and maintained by an employer for a defined group 
of employees; and
    (3) Provides for the payment of definitely determinable benefits to 
employees over a period of years, usually for life, after retirement or 
disability. Such a plan is sometimes referred to as a defined benefit 
plan.
    (b) Defined contribution plan. A plan under which the employer is 
obligated to make fixed contributions to the plan regardless of profits 
(sometimes known as a money purchase plan) is a private pension plan. A 
plan under which the employer's contributions are discretionary is not a 
private pension plan under this section.
    (c) Other than retirement benefits. A plan which provides benefits 
not customarily considered retirement benefits (such as unemployment 
benefits, sickness or hospitalization benefits) is not a private pension 
plan under this section.
    (d) Effective date of private railroad pension for supplemental 
annuity purposes. A private pension reduces a supplemental annuity 
payment effective on the first day of the month after the month the 
Board determines that it is a private pension as defined in paragraph 
(a) of this section.
    (e) Effect of private railroad pension. A supplemental annuity is 
reduced by the amount of any private pension the employee is receiving 
which is attributable to an employer's contributions, less any amount by 
which the private pension is reduced because of the supplemental 
annuity. The supplemental annuity is not reduced for the amount of a 
private pension attributable to the employee's contributions. The Board 
will determine the amount of a private pension for any month which is 
attributable to the employee's contributions.



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

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



             Subpart F--Spouse and Divorced Spouse Annuities



Sec. 216.50  General.

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



Sec. 216.51  Who is eligible for a spouse annuity.

    (a) To be eligible for an annuity, a spouse must:
    (1) Be the husband or wife, as defined in part 222 of this chapter, 
of an employee who is entitled to an annuity described under subpart D 
of this part; and
    (2) Stop working for any railroad employer.
    (b) Where the employee's annuity began before January 1, 1975, the 
employee has completed less than 30 years of railroad service, and is 
age 65 or older, the spouse must be:
    (1) Age 65 or older;

[[Page 167]]

    (2) Less than age 65 and have in his or her care a disabled child or 
minor child (a child under 18 years old if the spouse claimant is a 
wife, or under 16 years old if the spouse claimant is a husband) of the 
employee; or
    (3) Age 62 or older but under age 65. In such case, all annuity 
components are reduced for each month the spouse is under age 65 at the 
time the annuity begins.
    (c) Where the employee's annuity begins after December 31, 1974, the 
employee has completed 10 years but less than 30 years of railroad 
service, and has attained age 62, the spouse must be:
    (1) Retirement age or older;
    (2) Less than retirement age and have in his or her care a disabled 
child or a minor child (a child under 18 years old if the spouse 
claimant is a wife, or under 16 years old if the spouse claimant is a 
husband) of the employee; or
    (3) Age 62 or older but under retirement age. In such case, all 
annuity components are reduced for each month the spouse is under 
retirement age at the time the annuity begins.
    (d) Where the employee's annuity began after June 30, 1974, the 
employee has completed 30 years of railroad service, and is age 60 or 
older, the spouse must be:
    (1) Age 60 or older;
    (2) Less than age 60 and have in his or her care a disabled child or 
a minor child (a child under 18 years old if the spouse claimant is a 
wife, or under 16 years old if the spouse claimant is a husband) of the 
employee; or
    (3) Age 60 but less than retirement age. In such case, the tier I 
component is reduced if the following conditions are met:
    (i) The employee was under age 62 at the time his or her annuity 
began;
    (ii) The employee annuity began after June 30, 1984;
    (iii) The employee was under age 60 on June 30, 1984 or completed 30 
years of railroad service after June 30, 1984; and
    (iv) The spouse annuity begins after June 30, 1984.



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

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



Sec. 216.53  What is required for payment.

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

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



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

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

[[Page 168]]



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



Sec. 216.60  General.

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



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

    (a) A widow(er) of an employee who has completed 10 years of 
railroad service and had a current connection with the railroad industry 
at death is eligible for an annuity if he or she:
    (1) Has not remarried; and either
    (2) Has attained retirement age;
    (3) Is at least 50 but less than 60 years of age and became disabled 
as defined in part 220 of this chapter before the end of the period 
described in Sec. 216.68 (this results in a reduced annuity);
    (4) Is less than retirement age but has in his or her care a child 
who either is under age 18 (16 with respect to the tier I component) or 
is disabled and who is entitled to an annuity under subpart H of this 
part; or
    (5) Is at least 60 years of age but has not attained retirement age. 
(In this case, all components of the annuity are reduced for each month 
the widow(er) is age 62 or over but under retirement age when the 
annuity begins. For each month the widow(er) is at least age 60 but 
under age 62, all components of the annuity are reduced as if the 
widow(er) were age 62).



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

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



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

    (a) A widow(er) of an employee who completed 10 years of railroad 
service and had a current connection with the railroad industry at death 
is eligible for an annuity as a remarried widow(er) if he or she:
    (1) Remarried either:
    (i) After having attained age 60 (after age 50 if disabled); or
    (ii) Before age 60 but the marriage terminated;
    (2) Is not entitled to an old-age benefit under the Social Security 
Act that is equal to or higher than the full amount of the remarried 
widow(er)'s annuity before any reduction for age; and
    (3) Has attained retirement age;
    (4) Is at least 50 but less than 60 years of age and is disabled as 
defined in part 220 of this chapter before the end of the period 
described in Sec. 216.68 (this results in a reduced annuity);

[[Page 169]]

    (5) Has not attained retirement age but has in his or her care a 
child who either is under age 16 or is disabled, and who is entitled to 
an annuity under subpart H of this part; or
    (6) Is at least age 60 but has not attained retirement age. (In this 
case, the annuity is reduced for each month the remarried widow(er) is 
under retirement age when the annuity begins.)
    (b) An individual entitled to a widow(er)'s annuity may be entitled 
to an annuity as a remarried widow(er) if he or she:
    (1) Remarries after having attained age 60 (after age 50 if he or 
she has been determined to be disabled prior to his or her remarriage) 
and is not a surviving divorced spouse; or
    (2) Is entitled to an annuity based upon having a child of the 
employee in his or her care and marries an individual entitled to a 
retirement, disability, widow(er)'s, mother's, father's, parent's, or 
disabled child's benefit under the Railroad Retirement Act or Social 
Security Act.



Sec. 216.64  What is required for payment.

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

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



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

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



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

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



Sec. 216.67  ``Child in care.''

    (a) Railroad Retirement Act. Part 222 of this chapter sets forth 
what is required to establish that a child is in an individual's care 
for purposes of the Railroad Retirement Act. This definition is used to 
establish eligibility for the tier

[[Page 170]]

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



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

    A widow(er), surviving divorced spouse, or remarried widow(er) who 
has a disability as defined in part 220 of this chapter is eligible for 
an annuity only if the disability began before the end of a period 
which:
    (a) Begins in the later of:
    (1) The month in which the employee died;
    (2) The last month for which the widow(er) or surviving divorced 
spouse was entitled to an annuity for having the employee's child in 
care; or
    (3) The last month for which the widow(er) or surviving divorced 
spouse was entitled to a previous annuity based on disability; and
    (b) Ends with the earlier of:
    (1) The month before the month in which the widow(er) or surviving 
divorced spouse or remarried widow(er) become 60 years old; or
    (2) The last day of the last month of a 7-year period (84 
consecutive months) following the month in which the period began.



                       Subpart H--Child's Annuity



Sec. 216.70  General.

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



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

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



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

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

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


[[Page 171]]





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

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



Sec. 216.74  When a child is a full-time student.

    (a) Full-time student. A child is considered a full-time student 
when that individual is in full-time attendance at an elementary or 
secondary school. An individual is not a full-time student if while 
attending an elementary or secondary school he or she is paid 
compensation by an employer who has requested or required that the 
individual attend the school. An individual is not a full-time student 
while he or she is confined in a penal institution or correctional 
facility because he or she committed a felony after October 19, 1980. A 
student who reaches age 19 but has not completed the requirements for a 
secondary school diploma or certificate and who is in full-time 
attendance at an elementary or secondary school will continue to be 
eligible for benefits until the first day of the first month following 
the end of the quarter or semester in which he or she is then enrolled, 
or if the school is not operated on a quarter or semester system, the 
earlier of:
    (1) The first day of the month following completion of the course(s) 
in which he or she was enrolled when age 19 was reached; or
    (2) The first day of the third month following the month in which he 
or she reached age 19.
    (b) Full-time attendance. Full-time school attendance means that a 
student is enrolled in a non-correspondence course which is considered 
full-time for day students under the practices and standards of the 
elementary or secondary school. The course must last at least 13 weeks 
and the student's scheduled rate of attendance must be at least 20 hours 
a week. A student whose full-time attendance either begins or ends in a 
given month is in full-time attendance for that entire month. A student 
is in full-time attendance in the month in which he or she graduates, 
but has no classes, if classes end in the month before graduation.
    (c) Elementary or secondary school. An elementary or secondary 
school is a school which provides elementary or secondary education, as 
determined under the law of the State or other jurisdiction in which it 
is located.



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

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



                       Subpart I--Parent's Annuity



Sec. 216.80  General.

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

[[Page 172]]

death. A parent may only receive an annuity based on age.



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

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



Sec. 216.82  What is required for payment.

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

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



            Subpart J--Eligibility for More Than One Annuity



Sec. 216.90  General.

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



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

    (a) General. If an individual is entitled to an annuity as a spouse, 
divorced spouse or survivor, and is also entitled to an employee 
annuity, then the spouse, divorced spouse or survivor annuity must be 
reduced by the amount of the employee annuity. However, this reduction 
does not apply (except as provided in paragraph (b) of this section) if 
the spouse, divorced spouse or survivor or the individual upon whose 
earnings record the spouse, divorced spouse or survivor annuity is based 
worked for a railroad employer or as an employee representative before 
January 1, 1975.
    (b) Tier I reduction. If an individual is entitled to an annuity as 
a spouse, divorced spouse or survivor, and is also entitled to an 
employee annuity, then the tier I component of the spouse, divorced 
spouse or survivor annuity must be reduced by the amount of the tier I 
component of the employee annuity.

[[Page 173]]

Where the spouse or survivor is entitled to a tier II component, then a 
portion of this reduction may be restored in the computation of this 
component.



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

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



Sec. 216.93  Entitlement to more than one survivor annuity.

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



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

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



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




                           Subpart A--General

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

                         Subpart B--Applications

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

                    Subpart C--Filing An Application

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

                 Subpart D--Cancellation of Application

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

                    Subpart E--Denial of Application

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

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

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



                           Subpart A--General



Sec. 217.1  Introduction.

    This part prescribes how to apply for an annuity or lump-sum payment 
under this chapter. It contains the rules for the filing and 
cancellation of an application and the period of time the application is 
in effect. Eligibility requirements for an annuity and for a lump-sum 
payment are found respectively in parts 216 and 234 of this chapter.
[54 FR 13363, Apr. 3, 1989]



Sec. 217.2  Definitions.

    The following definitions are used in this part:
    Applicant means a person who signs an application for an annuity or 
lump sum for himself or herself or for some other person.
    Application refers only to a form described in Sec. 217.6.
    Apply or file means to sign a form or statement that the Railroad 
Retirement Board accepts as an application.
    Award means to process a form to make a payment. An annuity is 
awarded on the date the payment form is processed.
    Claimant means a person who files for an annuity or lump sum for 
himself or herself or the person for whom an application is filed.

[[Page 174]]



Sec. 217.3  Need to file an application.

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

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

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



                         Subpart B--Applications



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

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

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

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



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

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



Sec. 217.7  Claim filed with the Social Security Administration.

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

[[Page 175]]

    (2) The claimant is eligible for an annuity or a lump-sum death 
payment on the date the application is filed.



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

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

[[Page 176]]

entitled to an annuity based on the disability in the month before the 
month in which he or she attains age 65.
    (r) A remarried widow(er)'s annuity or a surviving divorced spouse 
annuity based on age if the remarried widow(er) or surviving divorced 
spouse, who was receiving an annuity based on disability, is 60 years 
old or older when he or she recovers from the disability.
    (s) A benefit under title II of the Social Security Act unless the 
applicant restricts the application only to an annuity payable under the 
Railroad Retirement Act.
    (t) An accrued annuity due at the death of a spouse or divorced 
spouse if the claimant is entitled to an employee annuity on the same 
claim number.
    (u) A full-time student's annuity if the student was entitled to a 
child's annuity in the month before the month the child attained age 18.
[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13363, Apr. 3, 1989; 60 
FR 21982, May 4, 1995]



Sec. 217.9  Effective period of application.

    (a) When effective period ends. The effective period of an 
application ends on the date of the notice of an initial decision 
denying the claim. If a timely appeal is made (see part 260 of this 
chapter) the effective period of the application ends on the date of the 
notice of the decision of the referee, on the date of the notice of the 
final decision of the Board, or when court review of the denial has been 
completed. After the effective period of an application ends, the person 
must file a new application for any annuity or lump sum to which the 
claimant believes he or she is eligible.
    (b) Application filed before claimant is eligible--(1) General rule. 
Except as shown in paragraph (b)(2) of this section, an application for 
an annuity must be denied if it is filed with the Board more than three 
months before the date an annuity can begin.
    (2) Application for disability annuity. If the Board determines that 
a claimant for a disability annuity is disabled under part 220 of this 
chapter, beginning with a date after the application is filed and before 
a final decision is made, the application is treated as though it were 
filed on the date the claimant became disabled. The claimant may be an 
employee, widow(er), surviving divorced spouse, remarried widow(er), or 
surviving child.
    (c) Application filed after the claimant is eligible--(1) 
Application for lump-sum death payment. An application for a lump-sum 
death payment under part 234 of this chapter must be filed within two 
years after the death of the employee. This period may be extended under 
the Soldiers' and Sailors' Civil Relief Act of 1940, or when the 
applicant can prove ``good cause'' under Sec. 217.11 of this chapter for 
not filing within the time limit.
    (2) Application for annuity unpaid at death. An application for an 
annuity due but unpaid at death under part 234 of this chapter must be 
filed within two years after the death of the person entitled to the 
annuity. This period may be extended under the Soldiers' and Sailors' 
Civil Relief Act of 1940, or when the applicant can prove ``good cause'' 
under Sec. 217.11 of this chapter for not filing within the time limit.
    (3) Application for residual lump sum. An application for a residual 
lump sum under part 234 of this chapter may be filed at any time after 
the death of the employee.
    (4) Application for a period of disability. In order to be entitled 
to a period of disability under part 220 of this chapter, an employee 
must apply while he or she is disabled under part 220 or not later than 
12 months after the month in which the period of disability ends except 
that an employee who is unable to apply within the 12-month period after 
the period of disability ends because his or her physical condition 
limited his or her activities to the extent that he or she could not 
complete and sign an application or because he or she was mentally 
incompetent, may apply no later than 36 months after the period of 
disability ends.

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

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



Sec. 217.10  Application filed after death.

    (a) A survivor eligible for an annuity or lump sum under this 
chapter may file an application to establish a period

[[Page 177]]

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

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

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



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

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



                    Subpart C--Filing An Application



Sec. 217.15  Where to file.

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



Sec. 217.16  Filing date.

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



Sec. 217.17  Who may sign an application.

    An application may be signed according to the following rules:
    (a) A claimant who is 18 years old or older, competent (able to 
handle his or her own affairs), and physically able to sign the 
application, must sign in his or her own handwriting, except as provided 
in paragraph (e) of this section. A parent or a person standing in place 
of

[[Page 178]]

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

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

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



Sec. 217.18  When application is not acceptable.

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



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

    (a) Before benefits awarded. If the Board selects a representative 
for an incompetent claimant (see part 266 of this chapter) after an 
application is filed but before the benefit is awarded, a new benefit 
application must be filed by the representative. However, benefits will 
be paid using the filing date of the original benefit application.

[[Page 179]]

    (b) After benefits awarded. If the Board selects a representative 
after a monthly annuity was awarded to another person, the 
representative must apply as a substitute payee on a form specifically 
designed for that purpose. A new annuity application is not required.



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

    (a) Statement filed with the Board. A written statement indicating 
an intent to file a claim for an annuity or lump sum, filed with the 
Board as provided in Secs. 217.15 and 217.16, can establish the filing 
date of an application. A form set up by the Board to obtain information 
about persons who may be eligible for an annuity or lump sum in a 
particular case is not by itself considered a written statement for the 
purpose of this section. The Board will use the filing date of the 
written statement if all of the following requirements are met:
    (1) The statement gives a person's clear and positive intent to 
claim an annuity or lump sum for himself or herself or for some other 
person.
    (2) The claimant or a person described in Sec. 217.17 signs the 
statement.
    (3) The person who signed the statement files an application with 
the Board on one of the forms described in part 200 of this chapter 
within 90 days after the date a notice is sent advising the person of 
the need to file an application.
    (4) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.
    (b) Statement filed with the Social Security Administration. A 
written statement filed with the Social Security Administration can be 
used to establish the filing date of an application if, assuming the 
statement were an application, the conditions under Sec. 217.7 are met 
and--
    (1) The statement gives a clear and positive intent to claim 
benefits under title II of the Social Security Act;
    (2) The claimant or a person described in Sec. 217.17 signs the 
statement;
    (3) The statement is sent to the Board by the Social Security 
Administration;
    (4) The person who signed the statement files an application with 
the Board on one of the forms described in part 200 of this chapter 
within 90 days after the date a notice is sent advising the person of 
the need to file an application; and
    (5) The claimant is alive when the application is filed except as 
provided in Sec. 217.10.
    (c) Telephone contact with the Board. If an individual telephones a 
Board office and advises a Board employee that he or she intends to file 
an application but cannot do so before the end of the month, the Board 
employee will prepare and sign a written statement which may be used to 
establish the filing date of an application if all of the following 
requirements are met:
    (1) The inquirer expresses a clear and positive intent to claim 
benefits for himself or herself or for some other person;
    (2) The prescribed application cannot be filed by the end of the 
current month;
    (3) The inquirer is either the potential claimant or the person who 
will file an application as representative payee therefor;
    (4) The inquiry is received by an office of the Board no more than 3 
months before eligibility exists;
    (5) It appears that a loss of benefits might otherwise result;
    (6) The telephone inquirer files an application with the Board on 
one of the forms described in part 200 of this chapter within 90 days 
after the date a notice is sent advising the person of the need to file 
an application; and
    (7) The claimant is alive when the application is filed, except as 
provided in Sec. 217.10 of the part.
[47 FR 7647, Feb. 22, 1982, as amended at 54 FR 13364, Apr. 3, 1989]



Sec. 217.21  Deterred from filing.

    A person who telephones or visits a Board office stating that he or 
she wishes to file for an annuity or lump sum, but puts off filing 
because of an action or lack of action by an employee of the Board, can 
establish a filing date based on that oral notice if the following 
conditions are met:
    (a) There is evidence which establishes that the employee of the 
Board failed to--

[[Page 180]]

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



                 Subpart D--Cancellation of Application



Sec. 217.25  Who may cancel an application.

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



Sec. 217.26  How to cancel an application.

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



Sec. 217.27  Effect of cancellation.

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



                    Subpart E--Denial of Application



Sec. 217.30  Reasons for denial of application.

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



Sec. 217.31  Applicant's right to appeal denial.

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



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




                           Subpart A--General

Sec.
218.1  Introduction.
218.2  Definitions.

[[Page 181]]

218.3  When an employee disappears.

                    Subpart B--When an Annuity Begins

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

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

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

                     Subpart D--When an Annuity Ends

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

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

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



                           Subpart A--General



Sec. 218.1  Introduction.

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



Sec. 218.2  Definitions.

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



Sec. 218.3  When an employee disappears.

    (a) General. If an employee who is entitled to an annuity 
disappears, the employee annuity ends on the last day of the month 
before the month of the disappearance.
    (b) Employee has a current connection. (1) The Board may pay 
survivor benefits from the month of the employee's disappearance if both 
of the following conditions are met at the time of the disappearance:
    (i) The employee has a current connection with the railroad industry 
as defined in part 216 of this chapter, and
    (ii) The employee's spouse is entitled, or would have been entitled 
if he or she had filed an application, to a spouse annuity in the month 
that the employee disappeared.
    (2) If the employee is later found to have been alive during any 
month for which a survivor annuity was paid, the amount of any incorrect 
payment must be recovered under the rules of part 255, Erroneous 
Payments, of this chapter. The incorrect payment is the amount of any 
survivor benefits which

[[Page 182]]

were paid minus any spouse benefits which were paid minus any spouse 
benefits that would have been paid.
    (c) Employee has no current connection. If the employee does not 
have a current connection and the employee's spouse is entitled to an 
annuity in the month of the employee's disappearance, the spouse annuity 
will continue to be paid until one of the following events occurs:
    (1) The employee's death is established.
    (2) The spouse annuity ends for another reason.



                    Subpart B--When an Annuity Begins



Sec. 218.5  General rules.

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



Sec. 218.6  How to choose an annuity beginning date.

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

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



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

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

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



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

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



Sec. 218.9  When an employee annuity begins.

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

[[Page 183]]

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



Sec. 218.10  When a supplemental annuity begins.

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



Sec. 218.11  When a spouse annuity begins.

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

[[Page 184]]

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



Sec. 218.12  When a divorced spouse annuity begins.

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



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

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

[[Page 185]]

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



Sec. 218.14  When a child annuity begins.

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



Sec. 218.15  When a parent annuity begins.

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



Sec. 218.16  When a surviving divorced spouse annuity begins.

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

[[Page 186]]

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



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

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



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



Sec. 218.25  Introduction.

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



Sec. 218.26  Work started after annuity beginning date.

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

[[Page 187]]

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



Sec. 218.27  Vacation pay.

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



Sec. 218.28  Sick pay.

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



Sec. 218.29  Pay for time lost.

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



Sec. 218.30  Separation, displacement or dismissal allowance.

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



                     Subpart D--When an Annuity Ends



Sec. 218.35  When an employee age annuity ends.

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



Sec. 218.36  When an employee disability annuity ends.

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

[[Page 188]]

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



Sec. 218.37  When a supplemental annuity ends.

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



Sec. 218.38  When a spouse annuity ends.

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



Sec. 218.39  When a divorced spouse annuity ends.

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

[[Page 189]]

the full divorced spouse annuity before reduction for age.



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

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



Sec. 218.41  When a child annuity ends.

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

[[Page 190]]

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



Sec. 218.42  When a parent annuity ends.

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



Sec. 218.43  When a surviving divorced spouse annuity ends.

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

[[Page 191]]

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



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

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



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




                Subpart A--General Evidence Requirements

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

                  Subpart B--Evidence of Age and Death

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

                   Subpart C--Evidence of Relationship

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

[[Page 192]]

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

                 Subpart D--Other Evidence Requirements

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

    Authority:  45 U.S.C 231f.

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



                Subpart A--General Evidence Requirements



Sec. 219.1  Introduction.

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



Sec. 219.2  Definitions.

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

[[Page 193]]



Sec. 219.3  When evidence is required.

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



Sec. 219.4  Who is responsible for furnishing evidence.

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



Sec. 219.5  Where and how to provide evidence.

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



Sec. 219.6  Original records or copies as evidence.

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

[[Page 194]]

that agency to obtain veterans benefits;
    (3) A Social Security Administration employee, if the evidence was 
given to that agency to obtain social security benefits;
    (4) A United States Consular Officer, an employee of the Department 
of State, or an employee of the Immigration and Naturalization Service 
authorized to certify evidence received outside the United States; or
    (5) An employee of a state agency or state welfare office authorized 
to certify copies of original records in the agency's or office's files.



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

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



Sec. 219.8  Preferred evidence and other evidence.

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



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

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



                  Subpart B--Evidence of Age and Death



Sec. 219.20  When evidence of age is required.

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



Sec. 219.21  Types of evidence to prove age.

    (a) Preferred evidence. The best type of evidence to prove a 
claimant's age is--

[[Page 195]]

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

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



Sec. 219.22  When evidence of death is required.

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



Sec. 219.23  Evidence to prove death.

    (a) Preferred evidence of death. The best evidence of a person's 
death is--
    (1) A certified copy of or extract from the public record of death, 
or verdict of the coroner's jury of the state or community where death 
occurred; or a certificate or statement of death issued by a local 
registrar or public health official;
    (2) A signed statement of the funeral director, attending physician, 
or official of an institution where death occurred;
    (3) A certified copy of, or extract from, an official report or 
finding of death made by an agency or department of the United States or 
of a state; or
    (4) If death occurred outside the United States, an official report 
of death by a United States Consul or other authorized employee of the 
State Department, or a certified copy of the public record of death in a 
foreign country.
    (b) Other evidence of death. If the preferred evidence of death 
cannot be obtained, the individual who must furnish evidence of death 
will be asked to explain the reason therefor and to submit other 
convincing evidence, such as sworn statements of at least two persons 
who have personal knowledge of the death. These persons must be able to 
swear to the date, time, place, and cause of death.

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


[[Page 196]]





Sec. 219.24  Evidence of presumed death.

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



                   Subpart C--Evidence of Relationship



Sec. 219.30  When evidence of marriage is required.

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



Sec. 219.31  Evidence of a valid ceremonial marriage.

    (a) Preferred evidence. Preferred evidence of a ceremonial marriage 
is--
    (1) A copy of the public record of the marriage, certified by the 
custodian of the record or by a Board employee;
    (2) A copy of a church record of the marriage certified by the 
custodian of the record or by a Board employee; or
    (3) The original certificate of marriage.
    (b) Other evidence of a ceremonial marriage. If preferred evidence 
of a ceremonial marriage cannot be obtained, the applicant must state 
the reason therefor in writing and submit either--
    (1) A sworn statement of the clergyman or official who performed the 
marriage ceremony; or
    (2) Other convincing evidence, such as the sworn statements of at 
least two persons who have direct knowledge of the marriage, preferably 
eyewitnesses to the marriage ceremony.

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



Sec. 219.32  Evidence of a common-law marriage.

    (a) Preferred evidence. Evidence of a common-law marriage must give 
the reasons why the informant believes that a marriage exists. If the 
information described in this paragraph is not furnished on a form 
provided by the Board, it must be submitted in the

[[Page 197]]

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

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



Sec. 219.33  Evidence of a deemed valid marriage.

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

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



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

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

[[Page 198]]



Sec. 219.35  Evidence that a marriage has ended.

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

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



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

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



Sec. 219.37  Evidence of natural parent or child relationship.

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



Sec. 219.38  Evidence of stepparent or stepchild relationship.

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



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

    (a) Preferred evidence. Preferred evidence of legal adoption is--
    (1) A copy of the decree or order of adoption, certified by the 
custodian of the record;
    (2) A photocopy of the decree or order of adoption; or
    (3) If the widow or widower adopted the child after the employee's 
death, the evidence described in paragraph (a)(1) or (2) of this 
section; the widow's or widower's statement as to whether the child was 
living in the same household with the employee when the employee died 
(see Secs. 219.50 and 219.51); what support, if any, the child was 
getting from another person or organization; and if the widow or widower 
had a deemed valid marriage with the employee, evidence of that marriage 
(see Sec. 219.33).

[[Page 199]]

    (b) Other evidence of legal adoption. In some states the record of 
adoption proceedings is sealed and cannot be obtained without a court 
order. In this event, the Board will accept as proof of adoption an 
official notice received by the adopting parents at the time of adoption 
that the adoption has been completed or a birth certificate issued as a 
result of the adoption proceeding.



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

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

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



Sec. 219.41  Evidence of relationship of grandchild or stepgrandchild.

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



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

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



Sec. 219.43  Evidence of child's dependency.

    (a) When the dependency requirement must be met. Usually the 
dependency requirement must be met at one of the times shown in part 222 
of this chapter.
    (b) Natural or adopted. If the child is the employee's natural or 
adopted child, the Board may ask for the following evidence:
    (1) A signed statement by someone who knows the facts that confirms 
that the child is the natural or adopted child.
    (2) If the child was adopted by someone else while the employee was 
alive but the adoption was annulled, the Board may require a certified 
copy of the annulment decree or other convincing evidence of the 
annulment.
    (3) A signed statement by someone having personal knowledge of the 
circumstances showing when and where the child lived with the employee 
and when and why they may have lived apart; and showing what 
contributions the employee made to the child's support and how the 
contributions were made.
    (c) Stepchild. If the child is the employee's stepchild, the Board 
may ask for the following evidence;
    (1) A signed statement by someone having personal knowledge of the 
circumstances showing when and where the child lived with the employee 
and when and why they may have lived apart.
    (2) A signed statement by someone having personal knowledge of the 
circumstances showing what contributions the employee made to the 
child's support, the child's ordinary living costs and the income and 
support the child received from any other source during the relevant 
time as required by Sec. 222.55 of this chapter.
    (d) Grandchild or stepgrandchild. If the child is the employee's 
grandchild or stepgrandchild, the Board will require the evidence 
described in paragraph (c)

[[Page 200]]

of this section. The Board will also require evidence of the employee's 
death or disability.

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



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

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



                 Subpart D--Other Evidence Requirements



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

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



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

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

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



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

    A person who applies for a spouse's, widow's or widower's, or 
surviving divorced spouse's annuity on the basis of caring for a child, 
or for an increase

[[Page 201]]

under the social security overall minimum guaranty provision based on 
caring for a child, is required to furnish evidence that he or she has 
in care an eligible child of the employee as described in part 222 of 
this chapter. What evidence the Board will require depends upon whether 
the child is living with the applicant or with someone else.



Sec. 219.53  Evidence of having a child in care.

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

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



Sec. 219.54  When evidence of school attendance is required.

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



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

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

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



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

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



Sec. 219.57  Evidence of a parent's support.

    (a) The Board will require the parent's signed statement showing his 
or her income, any other sources of support, the amount from each source 
and his or her expenses during the one-year period.
    (b) The Board may also ask the parent for signed statements from 
other people who know the facts about his or her sources of support.
    (c) If the statements described in paragraphs (a) and (b) of this 
section cannot be obtained, the Board will require other convincing 
evidence that

[[Page 202]]

the parent is receiving one-half of his or her support from the 
employee.

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



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

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



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

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

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



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

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



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

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



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

    The principle of ``good cause'', as defined in part 217 of this 
chapter, is applied by the Board in determining whether to allow an 
application which is submitted more than two years after the employee's 
death as acceptable for the lump-sum death payment or for an annuity 
unpaid at death, or to accept the proof of support required for 
entitlement to a parent's annuity if such proof is filed more than two 
years after the employee's death.

[[Page 203]]



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

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



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

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

(Approved by the Office of Management and Budget under control numbers 
3220-0002, 3220-0136, and 3220-0154)

    (d) The Board will require evidence to reconcile discrepancies 
between the information furnished by the claimant and information 
already in the records of the Board, the Social Security Administration, 
or other public agencies. Such discrepancies may be differences in name, 
date or place of birth, periods of employment, or other identifying 
data.



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

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



PART 220--DETERMINING DISABILITY--Table of Contents




                           Subpart A--General

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

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

220.5  Definitions as used in this part.

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

220.10  Disability for work in an employee's regular railroad 
          occupation.
220.11  Definitions as used in this subpart.
220.12  Evidence considered.

[[Page 204]]

220.13  Establishment of permanent disability for work in regular 
          railroad occupation.
220.14  Weighing of evidence.
220.15  Effects of work on occupational disability.
220.16  Responsibility to notify the Board of events which affect 
          disability.
220.17  Recovery from disability for work in the regular occupation.
220.18  The reentitlement period.
220.19  Payment of the disability annuity during the trial work period 
          and the reentitlement period.
220.20  Notice that an annuitant is no longer disabled.
220.21  Initial evaluation of a previous occupational disability.

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

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

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

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

                    Subpart F--Evidence of Disability

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

                  Subpart G--Consultative Examinations

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

                   Subpart H--Evaluation of Disability

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

                    Subpart I--Medical Considerations

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

                 Subpart J--Residual Functional Capacity

220.120  Residual functional capacity, defined.
220.121  Responsibility for assessing and determining residual 
          functional capacity.

                  Subpart K--Vocational Considerations

220.125  When vocational background is considered.
220.126  Relationship of ability to do work and residual functional 
          capacity.
220.127  When the only work experience is arduous unskilled physical 
          labor.
220.128  Age as a vocational factor.
220.129  Education as a vocational factor.

[[Page 205]]

220.130  Work experience as a vocational factor.
220.131  Work which exists in the national economy.
220.132  Physical exertion requirements.
220.133  Skill requirements.
220.134  Medical-vocational guidelines in appendix 2 of this part.

                 Subpart L--Substantial Gainful Activity

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

           Subpart M--Disability Annuity Earnings Restrictions

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

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

220.170  The trial work period.
220.171  The reentitlement period.

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

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

                         Appendices to Part 220

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

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

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



                           Subpart A--General



Sec. 220.1  Introduction of part.

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



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

    (a) The Board makes disability decisions for claims of disability 
under the Railroad Retirement Act. These decisions are based either on 
the rules contained in the Board's regulations in

[[Page 206]]

this part or the rules contained in the regulations of the Social 
Security Administration, whichever is controlling.
    (b) A disability decision is made only if the claimant meets other 
basic eligibility requirements for the specific disability benefit for 
which he or she is applying. For example, a claimant for an occupational 
disability annuity must first meet the eligibility requirements for that 
annuity, as explained in part 216 of this chapter, in order for the 
Board to make a disability decision.



Sec. 220.3  Determinations by other organizations and agencies.

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



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



Sec. 220.5  Definitions as used in this part.

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



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



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

    (a) In order to receive an occupational disability annuity an 
eligible employee must be found by the Board to be disabled for work in 
his or her regular railroad occupation because of a permanent physical 
or mental impairment. In this subpart the Board describes in general 
terms how it evaluates a claim for an occupational disability annuity. 
In accordance with section 2(a)(2) of the Railroad Retirement Act this 
subpart was developed with the cooperation of employers and employees. 
This subpart is supplemented by an Occupational Disability Claims Manual 
(Manual) 1  which was also developed with the cooperation of 
employers and employees.
---------------------------------------------------------------------------


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

    (b) In accordance with section 2(a)(2) of the Railroad Retirement 
Act, the Board shall select two physicians, one from recommendations 
made by representatives of employers and one from recommendations made 
by representatives of employees. These individuals

[[Page 207]]

shall comprise the Occupational Disability Advisory Committee 
(Committee). This Committee shall periodically review, as necessary, 
this subpart and the Manual and make recommendations to the Board with 
respect to amendments to this subpart or to the Manual. The Board shall 
confer with the Committee before it amends either this subpart or the 
Manual.
[63 FR 7541, Feb. 13, 1998]



Sec. 220.11  Definitions as used in this subpart.

    Functional capacity test means one of a number of tests which 
provide objective measures of a claimant's maximal work ability and 
includes functional capacity evaluations which provide a systematic 
comprehensive assessment of a claimant's overall strength, mobility, 
endurance and capacity to perform physically demanding tasks, such as 
standing, walking, lifting, crouching, stooping or bending, climbing or 
kneeling.
    Independent Case Evaluation (ICE) means the process for evaluating 
claims not covered by appendix 3 of this part.
    Permanent physical or mental impairment means a physical or mental 
impairment or combination of impairments that can be expected to result 
in death or has lasted or can be expected to last for a continuous 
period of not less than 12 months.
    Regular railroad occupation means an employee's railroad occupation 
in which he or she has engaged in service for hire in more calendar 
months than the calendar months in which he or she has been engaged in 
service for hire in any other occupation during the last preceding five 
calendar years, whether or not consecutive; or has engaged in service 
for hire in not less than one-half of all of the months in which he or 
she has been engaged in service for hire during the last preceding 15 
consecutive calendar years. If an employee last worked as an officer or 
employee of a railway labor organization and if continuance in such 
employment is no longer available to him or her, the ``regular 
occupation'' shall be the position to which the employee holds seniority 
rights or the position which he or she left to work for a railway labor 
organization.
    Residual functional capacity has the same meaning as found in 
Sec. 220.120.
[63 FR 7541, Feb. 13, 1998]



Sec. 220.12  Evidence considered.

    The regulations explaining the employee's responsibility to provide 
evidence of disability, the kind of evidence, what medical evidence 
consists of, and the consequences of refusing or failing to provide 
evidence or to have a medical examination are found in Sec. 220.45 
through Sec. 220.48. The regulations explaining when the employee may be 
requested to report for a consultative examination are found in 
Sec. 220.50 and Sec. 220.51. The regulations explaining how the Board 
evaluates conclusions by physicians concerning the employee's 
disability, how the Board evaluates the employee's symptoms, what 
medical findings consist of, and the need to follow prescribed treatment 
are found in Sec. 220.112 through Sec. 220.115.
[56 FR 12980, Mar. 28, 1991. Redesignated at 63 FR 7541, Feb. 13, 1998]



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

    The Board will presume that a claimant who is not allowed to 
continue working for medical reasons by his employer has been found, 
under standards contained in this subpart, disabled unless the Board 
finds that no person could reasonably conclude on the basis of evidence 
presented that the claimant can no longer perform his or her regular 
railroad occupation for medical reasons. (See Sec. 220.21 if the 
claimant is not currently disabled, but was previously occupationally 
disabled for a specified period of time in the past). The Board uses the 
following evaluation process in determining disability for work in the 
regular occupation:
    (a) The Board evaluates the employee's medically documented physical 
and mental impairment(s) to determine if the employee has an impairment 
which is listed in the Listing of Impairments in appendix 1 of this 
part. That Listing describes impairments which are considered severe 
enough to

[[Page 208]]

prevent a person from doing any substantial gainful activity. If the 
Board finds that an employee has an impairment which is listed or is 
equal to one which is listed, it will find the employee disabled for 
work in his or her regular occupation without considering the duties of 
his or her regular occupation.
    (b) If the Board finds that the claimant does not have an impairment 
described in paragraph (a) of this section, it will--
    (1) Determine the employee's regular railroad occupation, as defined 
in Sec. 220.11, based upon the employee's own description of his or her 
job;
    (2) Evaluate whether the claimant is disabled as follows:
    (i) The Board first determines whether the employee's regular 
railroad occupation is an occupation covered under appendix 3 of this 
part. Second, the Board will determine whether the employee's claimed 
impairment(s) is covered under appendix 3 of this part. If claimant's 
regular railroad occupation or impairment(s) is not covered under 
appendix 3 of this part, then the Board will determine if the employee 
is disabled under ICE as set forth in paragraph (b)(2)(iv) of this 
section.
    (ii)(A) If the Board determines that, in accordance with paragraph 
(b)(2)(i) of this section, appendix 3 of this part applies, then the 
Board will confirm the existence of the employee's impairment(s) using--
    (1) The ``highly recommended'' and ``recommended'' tests set forth 
in appendix 3 of this part that relate to the body part affected by the 
claimant's impairment(s); or
    (2) By using valid diagnostic tests accepted by the medical 
community as described in Sec. 220.27.
    (B) If the employee's impairment(s) cannot be confirmed because 
there are significant differences in objective tests such as imaging 
study, electrocardiograms or other test results, and these differences 
cannot be readily resolved, the Board will determine if the employee is 
disabled under ICE as set forth in paragraph (b)(2)(iv) of this section. 
However, if the employee's impairment(s) cannot be confirmed, and there 
are no significant differences in objective medical tests which cannot 
be readily resolved, then the employee will be found not disabled.
    (iii) Once the impairment(s) is confirmed, as provided for in 
paragraph (b)(2)(ii) of this section, the Board will apply appendix 3 of 
this part. If appendix 3 of this part dictates a ``D'' (disabled) 
finding, the Board will find the claimant disabled.
    (iv) If the Board does not find the employee disabled using the 
standards in appendix 3 of this part, then the Board will determine if 
the employee is disabled using ICE. To evaluate a claim under ICE the 
Board will use the following steps:
    (A) Step 1. The Board will determine if the medical evidence is 
complete. Under this step the Board may request the claimant to take 
additional medical tests such as a functional capacity test or other 
consultative examinations;
    (B) Step 2. If the employee's impairment(s) has not been confirmed, 
as provided for in paragraph (b)(2)(ii)(A)(2) of this section, the Board 
will next confirm the employee's impairment(s), as described in 
paragraph (b)(2)(ii)(A)(2) of this section;
    (C) Step 3. The Board will determine whether the opinions among the 
physicians regarding medical findings are consistent, by reviewing the 
employee's medical history, physical and mental examination findings, 
laboratory or other test results, and other information provided by the 
employee or obtained by the Board. If such records reveal that there are 
significant differences in the medical findings, significant differences 
in opinions concerning the residual functional capacity evaluations 
among treating physicians, or significant differences between the 
results of functional capacity evaluations and residual functional 
capacity examinations, then the Board may request additional evidence 
from treating physicians, additional consultative examinations and/or 
residual functional capacity tests to resolve the inconsistencies;
    (D) Step 4. When the Board determines that there is concordance of 
medical findings, then the Board will assess the quality of the evidence 
in accordance with Sec. 220.112, which describes the weight to be given 
to the opinions

[[Page 209]]

of various physicians, and Sec. 220.114, which describes how the Board 
evaluates symptoms such as pain. The Board will also assess the weight 
of evidence by utilizing Sec. 220.14, which outlines factors to be used 
in determining the weight to be attributed to certain types of evidence. 
If, after assessment, the Board determines that there is no substantial 
objective evidence of an impairment, the Board will determine that the 
employee is not disabled;
    (E) Step 5. Next, the Board determines the physical and mental 
demands of the employee's regular railroad occupation. In determining 
the job demands of the employee's regular railroad occupation, the Board 
will not only consider the employee's own description of his or her 
regular railroad occupation, but shall also consider the employer's 
description of the physical requirements and environmental factors 
relating to the employee's regular railroad occupation, as provided by 
the employer on the appropriate form set forth in appendix 3 of this 
part, and consult other sources such as the Dictionary of Occupational 
Titles and the job descriptions of occupations found in the Occupational 
Disability Claims Manual, as provided for in Sec. 220.10;
    (F) Step 6. Based upon the assessment of the evidence in paragraph 
(b)(2)(iv)(D) of this section, the Board shall determine the employee's 
residual functional capacity. The Board will then compare the job 
demands of the employee's regular railroad occupation, as determined in 
paragraph (b)(2)(iv)(E) of this section. If the demands of the 
employee's regular railroad occupation exceed the employee's residual 
functional capacity, then the Board will find the employee disabled. If 
the demands do not exceed the employee's residual functional capacity, 
then the Board will find the employee not disabled.
[56 FR 12980, Mar. 28, 1991, as amended at 63 FR 7541, Feb. 13, 1998]



Sec. 220.14  Weighing of evidence.

    (a) Factors which support greater weight. Evidence will generally be 
given more weight if it meets one or more of the following criteria:
    (1) The residual functional capacity evaluation is based upon 
functional objective tests with high validity and reliability;
    (2) The medical evidence shows multiple impairments which have a 
cumulative effect on the employee's residual functional capacity;
    (3) Symptoms associated with limitations are consistent with 
objective findings;
    (4) There exists an adequate trial of therapies with good 
compliance, but poor outcome;
    (5) There exists consistent history of conditions between treating 
physicians and other health care providers.
    (b) Factors which support lesser weight. Evidence will generally be 
given lesser weight if it meets one or more of the following criteria:
    (1) There is an inconsistency between the diagnoses of the treating 
physicians;
    (2) There is inconsistency between reports of pain and functional 
impact;
    (3) There is inconsistency between subjective symptoms and physical 
examination findings;
    (4) There is evidence of poor compliance with treatment regimen, 
keeping appointments, or cooperating with treatment;
    (5) There is evidence of exam findings which is indicative of 
exaggerated or potential malingering response;
    (6) The evidence consists of objective findings of exams that have 
poor reliability or validity;
    (7) The evidence consists of imaging findings which are nonspecific 
and largely present in the general population;
    (8) The evidence consists of a residual functional capacity 
evaluation which is supported by limited objective data without 
consideration for functional capacity testing.
[63 FR 7542, Feb. 13, 1998]



Sec. 220.15  Effects of work on occupational disability.

    (a) Disability onset when the employee works despite impairment. An 
employee who has stopped work in his or her regular occupation due to a 
permanent physical or mental impairment(s) may make an effort to return 
to work in his or her regular occupation. If the employee is 
subsequently forced to stop that work after a short time because of

[[Page 210]]

his or her impairment(s), the Board will generally consider that work as 
an unsuccessful work attempt. In this situation, the Board may determine 
that the employee became disabled for work in his or her regular 
occupation before the last date the employee worked in his or her 
regular occupation. No annuity will be payable, however, until after the 
last date worked.
    (b) Occupational disability annuitant work restrictions. The 
restrictions which apply to an annuitant who is disabled for work in his 
or her regular occupation are found in Secs. 220.160 through 220.164.



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

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



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

    (a) General. Disability for work in the regular occupation will end 
if--
    (1) There is medical improvement in the annuitant's impairment(s) to 
the extent that the annuitant is able to perform the duties of his or 
her regular occupation; or
    (2) The annuitant demonstrates the ability to perform the duties of 
his or her regular occupation. The Board provides a trial work period 
before terminating a disability annuity because of the annuitant's 
return to work.
    (b) Definition of the trial work period. The trial work period is a 
period during which the annuitant may test his or her ability to work 
and still be considered occupationally disabled. It begins and ends as 
described in paragraph (e) of this section. During this period, the 
annuitant may perform ``services'' (see paragraph (c) of this section) 
in as many as 9 months, but these months do not have to be consecutive. 
The Board will not consider those services as showing that the 
annuitant's occupational disability has ended until the annuitant has 
performed services in at least 9 months. However, after the trial work 
period has ended, the Board will consider the work the annuitant did 
during the trial work period in determining whether the annuitant's 
occupational disability has ended at any time after the trial work 
period.
    (c) What the Board means by services in an occupational disability 
case. When used in this section, ``services'' means any activity which, 
even though it may not be substantial gainful activity as defined in 
Sec. 220.141, is--
    (1) Done by a person in employment or self-employment for pay or 
profit, or is the kind normally done for pay or profit; and
    (2) The activity is a return to the same duties of the annuitant's 
regular occupation or the activity so closely approximates the duties of 
the regular occupation as to demonstrate the ability to perform those 
duties.
    (d) Limitations on the number of trial work periods. The annuitant 
may have only one trial work period during each period in which he or 
she is occupationally disabled.
    (e) When the trial work period begins and ends. (1) The trial work 
period begins with whichever of the following calendar months is the 
latest--
    (i) The annuity beginning date;
    (ii) The month after the end of the appropriate waiting period; or
    (iii) The month the application for disability is filed.
    (2) The trial work period ends with the close of whichever of the 
following calendar months is the earlier--
    (i) The ninth month (whether or not the months have been 
consecutive) in which the annuitant performed services; or
    (ii) The month in which new evidence, other than evidence relating 
to any work the annuitant did during the trial work period, shows that 
the annuitant is not disabled, even though the annuitant has not worked 
a full nine months. The Board may find that the annuitant's disability 
has ended at any time during the trial work period if the medical or 
other evidence shows that the annuitant is no longer disabled.

[[Page 211]]



Sec. 220.18  The reentitlement period.

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



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

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



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

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



Sec. 220.21  Initial evaluation of a previous occupational disability.

    (a) In some cases, the Board may determine that a claimant is not 
currently disabled for work in his or her regular occupation but was 
previously disabled for a specified period of time in the past. This can 
occur when--
    (1) The disability application was filed before the claimant's 
occupational disability ended, but the Board did not make the initial 
determination of occupational disability until after the claimant's 
disability ended; or
    (2) The disability application was filed after the claimant's 
occupational disability ended but no later than the 12th month after the 
month the disability ended.
    (b) When evaluating a claim for a previous occupational disability, 
the Board follows the steps in Sec. 220.13 to determine whether an 
occupational disability existed, and follows the steps in Secs. 220.16 
and 220.17 to determine when the occupational disability ended.

    Example 1:  The claimant sustained multiple fractures to his left 
leg in an automobile accident which occurred on June 16, 1982. For a 
period of 18 months following the accident the claimant underwent 2 
surgical procedures which restored the functional use of his leg. After 
a recovery period following the last surgery, the claimant returned to 
his regular railroad job on February 1, 1984. The claimant, although 
fully recovered medically and regularly employed, filed an application 
on December 3, 1984 for a determination of occupational disability for 
the period June 16, 1982 through January 31, 1984. The Board reviewed 
his claim in January 1985 and determined that he was occupationally 
disabled for the prior period which began on June 16, 1982 and continued 
through January 31, 1984. A disability annuity is payable to the 
employee only for the period December 1, 1983 through January 31, 1984. 
An annuity may not begin any earlier than the 1st day of the 12th month 
before the month in which the application was filed. (See part 218 of 
this chapter for the rules on when an annuity may begin).


[[Page 212]]


    Example 2: The claimant is occupationally disabled using the same 
medical facts disclosed above, beginning June 16, 1982 (the date of the 
automobile accident). The claimant files an application for an 
occupational disability annuity, dated December 1, 1983. However, as of 
February 1, 1984, and before the Board makes a disability determination, 
the claimant returns to his regular railroad job and is no longer 
considered occupationally disabled. The Board reviews the claimant's 
application in May of 1984 and finds him occupationally disabled for the 
period June 16, 1982 through January 31, 1984. A disability annuity is 
payable to the employee from December 1, 1982 through January 31, 1984. 
(See part 218 of this chapter for the rules on when an annuity may 
begin).



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



Sec. 220.25  General.

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



Sec. 220.26  Disability for any regular employment, defined.

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



Sec. 220.27  What is needed to show an impairment.

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



Sec. 220.28  How long the impairment must last.

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



Sec. 220.29  Work that is considered substantial gainful activity.

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



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

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

[[Page 213]]



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



Sec. 220.35  Introduction.

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



Sec. 220.36  Period of disability.

    (a) General. In order to receive an annuity based upon a disability, 
an employee must be found disabled under the Railroad Retirement Act. If 
an employee is found disabled under the Railroad Retirement Act, the 
Board will determine whether he is disabled under the Social Security 
Act to qualify for a period of disability as defined in that Act.
    (b) Period of disability--(1) Definition and effect. A period of 
disability is a continuous period of time during which an employee is 
disabled as that term is defined in Sec. 404.1505 of this title. A 
period of disability established by the Board--
    (i) Preserves the disabled employee's earnings record as it is when 
the period begins;
    (ii) Protects the insured status required for entitlement to social 
security overall minimum;
    (iii) May cause an increase in the rate of an employee, spouse, or 
survivor annuity; or
    (iv) May permit a disabled employee to receive Medicare benefits in 
addition to an annuity under the Railroad Retirement Act.
    (2) Effect on benefits. The establishment of a period of disability 
for the employee will never cause a denial or reduction in benefits 
under the Railroad Retirement Act or Social Security Act, but it will 
always be used to establish Medicare entitlement before age 65.
    (3) Who may establish a period of disability. The Railroad 
Retirement Board or the Social Security Administration may establish a 
period of disability. However, the decision of one agency is not binding 
upon the other agency.
    (4) When the Board may establish a period of disability. The Board 
has independent authority to decide whether or not to establish a period 
of disability for any employee who was awarded an annuity under the 
Railroad Retirement Act, or who--
    (i) Has applied for a disability annuity; and
    (ii) Has at least 10 years of railroad service.
    (5) When an employee is entitled to a period of disability. An 
employee is entitled to a period of disability if he or she meets the 
following requirements:
    (i) The employee is disabled under the Social Security Act, as 
described in Sec. 404.1505 of this title.
    (ii) The employee is insured for a period of disability under 
Sec. 404.130 of this title based on combined railroad and social 
security earnings.
    (iii) The employee files an application as shown in subparagraph 
(b)(6) of this section.
    (iv) At least 5 consecutive months elapse from the month in which 
the period of disability begins and before the month in which it would 
end.
    (6) Application for a period of disability. (i) An application for 
an employee disability annuity under the Railroad Retirement Act or an 
employee disability benefit under the Social Security Act is also an 
application for a period of disability.
    (ii) An employee who is receiving an age annuity or who was 
previously denied a period of disability must file a separate 
application for a period of disability.
    (iii) In order to be entitled to a period of disability, an employee 
must apply while he or she is disabled or not later than 12 months after 
the month in which the period of disability ends.
    (iv) An employee who is unable to apply within the 12-month period 
after

[[Page 214]]

the period of disability ends because his or her physical condition 
limited his or her activities to the extent that he or she could not 
complete and sign an application or because he or she was mentally 
incompetent, may apply no later than 36 months after the period of 
disability ends.
    (v) A period of disability can also be established on the basis of 
an application filed within 3 months after the month a disabled employee 
died.
    (c) Social security overall minimum. The social security overall 
minimum provision of the Railroad Retirement Act guarantees that the 
total monthly annuities payable to an employee and his or her family 
will not be less than the total monthly benefit which would be payable 
under the Social Security Act if the employee's railroad service were 
credited as employment under the Social Security Act.

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



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

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



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

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



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

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



                    Subpart F--Evidence of Disability



Sec. 220.45  Providing evidence of disability.

    (a) General. The claimant for a disability annuity is responsible 
for providing evidence of the claimed disability and the effect of the 
disability on the ability to work. The Board will assist the claimant, 
when necessary, in obtaining the required evidence. At its discretion, 
the Board will arrange for an examination by a consultant at the expense 
of the Board as explained in Secs. 220.50 and 220.51.
    (b) Kind of evidence. The claimant must provide medical evidence 
showing that he or she has an impairment(s) and how severe it is during 
the time the claimant claims to be disabled. The Board will consider 
only impairment(s) the claimant claims to have or about which the Board 
receives evidence. Before deciding that the claimant is not disabled, 
the Board will develop a complete medical history (i.e., evidence from 
the records of the claimant's medical sources) covering at least the 
preceding 12 months, unless the claimant says that his or her disability 
began less than 12 months before he or she filed an application. The 
Board will make every reasonable effort to help the claimant in getting 
medical reports from his or her own medical sources when the claimant 
gives the

[[Page 215]]

Board permission to request them. Every reasonable effort means that the 
Board will make an initial request and, after 20 days, one follow-up 
request to the claimant's medical source to obtain the medical evidence 
necessary to make a determination before the Board evaluates medical 
evidence obtained from another source on a consultative basis. The 
medical source will have 10 days from the follow-up request to reply 
(unless experience indicates that a longer period is advisable in a 
particular case). In order to expedite processing the Board may order a 
consultative exam from a non-treating source while awaiting receipt of 
medical source evidence. If the Board ask the claimant to do so, he or 
she must contact the medical sources to help us get the medical reports. 
The Board may also ask the claimant to provide evidence about his or 
her--
    (1) Age;
    (2) Education and training;
    (3) Work experience;
    (4) Daily activities both before and after the date the claimant 
says that he or she became disabled;
    (5) Efforts to work; and
    (6) Any other evidence showing how the claimant's impairment(s) 
affects his or her ability to work. (In Secs. 220.125 through 220.134, 
we discuss in more detail the evidence the Board needs when it considers 
vocational factors.)


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



Sec. 220.46  Medical evidence.

    (a) Acceptable sources. The Board needs reports about the claimant's 
impairment(s) from acceptable medical sources. Acceptable medical 
sources are--
    (1) Licensed physicians;
    (2) Licensed osteopaths;
    (3) Licensed or certified psychologists;
    (4) Licensed optometrists for the measurement of visual acuity and 
visual fields (a report from a physician may be needed to determine 
other aspects of eye diseases); and
    (5) Persons authorized to furnish a copy or summary of the records 
of a medical facility. Generally, the copy or summary should be 
certified as accurate by the custodian or by any authorized employee of 
the Railroad Retirement Board, Social Security Administration, 
Department of Veterans Affairs, or State agency.
    (b) Medical reports. Medical reports should include--
    (1) Medical history;
    (2) Clinical findings (such as the results of physical or mental 
status examinations);
    (3) Laboratory findings (such as blood pressure, x-rays);
    (4) Diagnosis (statement of disease or injury based on its signs and 
symptoms);
    (5) Treatment prescribed, with response to treatment and prognosis; 
and
    (6)(i) Statements about what the claimant can still do despite his 
or her impairment(s) based on the medical source's findings on the 
factors under paragraph (b)(1) through (5) of this section (except in 
disability claims for remarried widow's and surviving divorced spouses). 
(See Sec. 220.112).
    (ii) Statements about what the claimant can still do (based on the 
medical source's findings on the factors under paragraph (b)(1) through 
(5) of this section) should describe--
    (A) The medical source's opinion about the claimant's ability, 
despite his or her impairment(s), to do work-related activities such as 
sitting, standing, moving about, lifting, carrying, handling objects, 
hearing, speaking, and traveling; and
    (B) In cases of mental impairment(s), the medical source's opinion 
about the claimant's ability to reason or make occupational, personal, 
or social adjustments. (See Sec. 220.112).
    (c) Completeness. The medical evidence, including the clinical and 
laboratory findings, must be complete and detailed enough to allow the 
Board to make a determination about whether or not the claimant is 
disabled. It must allow the Board to determine--
    (1) The nature and limiting effects of the claimant's impairment(s) 
for any period in question;
    (2) The probable duration of the claimant's impairment(s); and
    (3) The claimant's residual functional capacity to do work-related 
physical and mental activities.

[[Page 216]]

    (d) Evidence from physicians. A statement by or the opinion of the 
claimant's treating physician will not determine whether the claimant is 
disabled. However, the medical evidence provided by a treating physician 
will be considered by the Board in making a disability decision. A 
treating physician is a doctor to whom the claimant has been going for 
treatment on a continuing basis. The claimant may have more than one 
treating physician. The Board may use consulting physicians or other 
medical consultants for specialized examinations or tests, to obtain 
more complete evidence, and to resolve any conflicts. A consulting 
physician is a doctor (often a specialist) to whom the claimant is 
referred for an examination once or on a limited basis. (See Sec. 220.50 
for an explanation of when the Board may request a consultative 
examination.)
    (e) Information from other sources. Information from other sources 
may also help the Board understand how an impairment affects the 
claimant's ability to work. Other sources include--
    (1) Public and private social welfare agencies;
    (2) Observations by nonmedical sources;
    (3) Other practitioners (for example, naturopaths, chiropractors, 
audiologists, etc.); and
    (4) Railroad and nonrailroad employers.


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



Sec. 220.47  Purchase of existing medical evidence.

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



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

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



                  Subpart G--Consultative Examinations



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

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

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



Sec. 220.51  Notice of the examination.

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



Sec. 220.52  Failure to appear at a consultative examination.

    (a) General. The Board may find that the claimant is not disabled if 
he or she does not have good reason for failing or refusing to take part 
in a consultative examination or test which was arranged by the Board. 
If the individual is already receiving an annuity and does not have a 
good reason for failing or refusing to take part in a consultative 
examination or test which the

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



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

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

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    (6) There is an indication of a change in the claimant's condition 
that is likely to affect his or her ability to function, but current 
severity is not documented.
    (7) Information provided by any source appears not to be supported 
by objective evidence.



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

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



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

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



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

    (a) Where there is a conflict in the medical evidence at the hearing 
level of review before a hearings officer, the hearings officer will try 
to resolve it by comparing the persuasiveness and value of the 
conflicting evidence. The hearings officer's reasoning will be explained 
in the decision rationale. Where such resolution is not possible, the 
hearings officer will secure additional medical evidence (e.g., clinical 
findings, laboratory test, diagnosis, prognosis, etc.) to resolve the 
conflict. Even in the absence of a conflict, the hearings officer will 
also secure additional medical evidence when the file does not contain 
findings, laboratory tests, a diagnosis, or a prognosis necessary for a 
decision.
    (b) Before requesting a consultative examination, the hearings 
officer will ascertain whether the information is available as a result 
of a recent examination by any of the claimant's medical sources. If it 
is, the hearings officer will request the evidence from that medical 
practitioner. If contact with the medical source is not productive for 
any reason, or if there is no recent examination by a medical source, 
the hearings officer will obtain a consultative examination.



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

    (a) Additional evidence needed for disability determination. The 
types of examinations and tests the Board will purchase depends upon the 
additional evidence needed for the disability determination. The Board 
will purchase only the specific evidence needed. For example, if special 
tests (such as X-

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



Sec. 220.58  Objections to the designated physician or psychologist.

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



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

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



Sec. 220.60  Diagnostic surgical procedures.

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



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

    Consulting physicians or psychologists will be fully informed at the 
time the Board contacts them of the following obligations:
    (a) General. In scheduling full consultative examinations, 
sufficient time should be allowed to permit the examining physician to 
take a case history and perform the examination (including any needed 
tests).
    (b) Report content. The reported results of the claimant's medical 
history,

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examination, pertinent requested laboratory findings, discussions and 
conclusions must conform to accepted professional standards and 
practices in the medical field for a complete and competent examination. 
The facts in a particular case and the information and findings already 
reported in the medical and other evidence of record will dictate the 
extent of detail needed in the consultative examination report for that 
case. Thus, the detail and format for reporting the results of a 
purchased examination will vary depending upon the type of examination 
or testing requested. The reporting of information will differ from one 
type of examination to another when the requested examination relates to 
the performance of tests such as ventilatory function tests, treadmill 
exercise tests, or audiological tests. The medical report must be 
complete enough to help the Board determine the nature, severity, 
duration of the impairment, and residual functional capacity. Pertinent 
points in the claimant's medical history, such as a description of chest 
pain, will reflect the claimant's statements of his or her symptoms, not 
simply the physician's or psychologist's statements or conclusions. The 
examining physician's or psychologist's report of the consultative 
examination will include the objective medical facts.
    (c) Elements of a complete examination. A complete examination is 
one which involves all the elements of a standard examination in the 
applicable medical specialty. When a complete examination is involved, 
the report will include the following elements:
    (1) The claimant's major or chief complaint(s).
    (2) A detailed description, within the area of speciality of the 
examination, of the history of the claimant's major complaint(s).
    (3) A description, and disposition, of pertinent ``positive,'' as 
well as ``negative,'' detailed findings based on the history, 
examination and laboratory test(s) related to the major complaint(s) and 
any other abnormalities reported or found during examination or 
laboratory testing.
    (4) The results of laboratory and other tests (e.g., x-rays) 
performed according to the requirements stated in the Listing of 
Impairments (see appendix 1 of this part).
    (5) The diagnosis and prognosis for the claimant's impairment(s).
    (6) A statement as to what the claimant can still do despite his or 
her impairment(s) (except in disability claims for remarried widows and 
widowers, and surviving divorced spouses). This statement must describe 
the consultative physician's or psychologist's opinion concerning the 
claimant's ability, despite his or her impairment(s), to do basic work 
activities such as sitting, standing, lifting, carrying, handling 
objects, hearing, speaking, and traveling: and, in cases of mental 
impairment(s), the consultative physician's or psychologist's opinion as 
to the claimant's ability to reason or make occupational, personal, or 
social adjustments.
    (7) When less than a complete examination is required (for example, 
a specific test or study is needed), not every element is required.
    (d) Signature requirements. All consultative examination reports 
will be personally reviewed and signed by the physician or psychologist 
who actually performed the examination. This attests to the fact that 
the physician or psychologist doing the examination or testing is solely 
responsible for the report contents and for the conclusions, 
explanations or comments provided with respect to the history, 
examination and evaluation of laboratory test results.



Sec. 220.62  Reviewing reports of consultative examinations.

    (a) The Board will review the report of the consultative examination 
to determine whether the specific information requested has been 
furnished. The Board will consider these factors in reviewing the 
report:
    (1) Whether the report provides evidence which serves as an adequate 
basis for decision-making in terms of the impairment it assesses.
    (2) Whether the report is internally consistent. Whether all the 
diseases, impairments and complaints described in the history are 
adequately assessed and reported in the physical findings. Whether the 
conclusions correlate the

[[Page 221]]

findings from the claimant's medical history, physical examination and 
laboratory tests and explain all abnormalities.
    (3) Whether the report is consistent with the other information 
available to the Board within the specialty of the examination 
requested. Whether the report fails to mention an important or relevant 
complaint within the speciality that is noted on other evidence in the 
file (e.g., blindness in one eye, amputations, flail limbs or claw 
hands, etc.).
    (4) Whether the report is properly signed.
    (b) If the report is inadequate or incomplete, the Board will 
contact the examining consultative physician or psychologist, give an 
explanation of the Board's evidentiary needs, and ask that the physician 
or psychologist furnish the missing information or prepare a revised 
report.
    (c) Where the examination discloses new diagnostic information or 
test results which are significant to the claimant's treatment, the 
Board will consider referral of the consultative examination report to 
the claimant's treating physician or psychologist.
    (d) The Board will take steps to ensure that consultative 
examinations are scheduled only with medical sources who have the 
equipment required to provide an adequate assessment and record of the 
level of severity of the claimant's alleged impairments.



Sec. 220.63  Conflict of interest.

    All implications of possible conflict of interest between Board 
medical consultants and their medical practices will be avoided. Board 
review physicians or psychologists will not perform consultative 
examinations for the Board's disability programs without prior approval. 
In addition, they will not acquire or maintain, directly or indirectly, 
including any member of their families, any financial interest in a 
medical partnership or similar relationship in which consultative 
examinations are provided. Sometimes one of the Board's review 
physicians or psychologists will have prior knowledge of a case (e.g., 
the claimant was a patient). Where this is so, the physician or 
psychologist will not participate in the review or determination of the 
case. This does not preclude the physician or psychologist from 
submitting medical evidence based on prior treatment or examination of 
the claimant.



Sec. 220.64  Program integrity.

    The Board will not use in its program any individual or entity who 
is excluded, suspended, or otherwise barred from participation in the 
Medicare or Medicaid programs, or any other Federal or Federally-
assisted program; who has been convicted, under Federal or State law, in 
connection with the delivery of health care services, of fraud, theft, 
embezzlement, breach of fiduciary responsibility or financial abuse; who 
has been convicted under Federal or State law of unlawful manufacture, 
distribution, prescription, or dispensing of a controlled substance; 
whose license to provide health care services is revoked or suspended by 
any State licensing authority for reasons bearing on professional 
competence, professional conduct, or financial integrity; who has 
surrendered such a license while formal disciplinary proceedings 
involving professional conduct were pending; or who has had a civil 
monetary assessment or penalty imposed on such individual or entity for 
any activity described in this section or as a result of formal 
disciplinary proceedings. Also see Secs. 220.53 and 220.57(b).



                   Subpart H--Evaluation of Disability



Sec. 220.100  Evaluation of disability for any regular employment.

    (a) General. The Board uses a set evaluation process, explained in 
paragraph (b) of this section, to determine whether a claimant is 
disabled for any regular employment. This evaluation process applies to 
employees, widow(er)s, and children who have applied for annuities under 
the Railroad Retirement Act based on disability for any regular 
employment. Regular employment means substantial gainful activity as 
that term is defined in Sec. 220.141.
    (b) Steps in evaluating disability. A set order is followed to 
determine whether disability exists. The duration requirement, as 
described in Sec. 220.28, must be

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met for a claimant to be found disabled. The Board reviews any current 
work activity, the severity of the claimant's impairment(s), the 
claimant's residual functional capacity, and the claimant's age, 
education, and work experience. If the Board finds that the claimant is 
disabled or is not disabled at any step in the process, the Board does 
not review further. (See Sec. 220.105 if the claimant is not currently 
disabled but was previously disabled for a specified period of time in 
the past.) The steps are as follows:
    (1) Claimant is working. If the claimant is working, and the work is 
substantial gainful activity, the Board will find that he or she is not 
disabled regardless of his or her impairments, age, education, or work 
experience. If the claimant is not performing substantial gainful 
activity, the Board will follow paragraph (2) of this section.
    (2) Impairment(s) not severe. If the claimant does not have an 
impairment or combination of impairments which significantly limit his 
or her physical or mental ability to do basic work activities, the Board 
will find that the claimant is not disabled without consideration of 
age, education, or work experience. If the claimant has an impairment or 
combination of impairments which significantly limit his or her ability 
to do basic work activities, the Board will follow paragraph (3) of this 
section. (See Sec. 220.102(b) for a definition of basic work 
activities.)
    (3) Impairment(s) meets or equals one in the Listing of Impairments. 
If the claimant has an impairment or combination of impairments which 
meets the duration requirement and such impairment is listed or is 
medically equal to one which is listed in the Listing of Impairments, 
the Board will find the claimant disabled without considering his or her 
age, education or work experience. (The Listing of Impairments is 
contained in appendix 1 of this part.) If the claimant's impairment or 
combination of impairments is not listed or is not medically equal to 
one which is listed in the Listing of Impairments, the Board will follow 
paragraph (4) of this section. (Medical equivalence is discussed in 
Sec. 220.111).
    (4) Impairment(s) must prevent past relevant work. If the claimant's 
impairment or combination of impairments is not listed or is not 
medically equal to one which is listed in the Listing of Impairments, 
the Board will then review the claimant's residual functional capacity 
(see Sec. 220.120) and the physical and mental demands of past relevant 
work (see Sec. 220.130). If the Board determines that the claimant is 
still able to do his or her past relevant work, the Board will find that 
he or she is not disabled. If the claimant is unable to do his or her 
past relevant work, the Board will follow paragraph (5) of this section.
    (5) Impairment(s) must prevent any other work. (i) If the claimant 
is unable to do his or her past relevant work because of his or her 
impairment or combination of impairments, the Board will review the 
claimant's residual functional capacity and his or her age, education 
and work experience to determine if the claimant is able to do any other 
work. If the claimant cannot do other work, the Board will find him or 
her disabled. If the claimant can do other work, the Board will find the 
claimant not disabled.
    (ii) If the claimant has only a marginal education (see 
Sec. 220.129) and long work experience (i.e., 35 years or more) in which 
he or she only did arduous unskilled physical labor, and the claimant 
can no longer do this kind of work, the Board will use a different rule 
(see Sec. 220.127) to determine disability.
    (c) Once a claimant has been found eligible to receive a disability 
annuity, the Board follows a somewhat different order of evaluation to 
determine whether the claimant's eligibility continues as explained in 
Sec. 220.180.



Sec. 220.101  Evaluation of mental impairments.

    (a) General. The steps outlined in Sec. 220.100 apply to the 
evaluation of physical and mental impairments. In addition, in 
evaluating the severity of a mental impairment(s), the Board will follow 
a special procedure at each administrative level of review. Following 
this procedure will assist the Board in--

[[Page 223]]

    (1) Identifying additional evidence necessary for the determination 
of impairment severity;
    (2) Considering and evaluating aspects of the mental impairment(s) 
relevant to the claimant's ability to work; and
    (3) Organizing and presenting the findings in a clear, concise, and 
consistent manner.
    (b) Use of the procedure to record pertinent findings and rate the 
degree of functional loss. (1) This procedure requires the Board to 
record the pertinent signs, symptoms, findings, functional limitations, 
and effects of treatment contained in the claimant's case record. This 
will assist the Board in determining if a mental impairment(s) exists. 
Whether or not a mental impairment(s) exists is decided in the same way 
the question of a physical impairment is decided, i.e., the evidence 
must be carefully reviewed and conclusions supported by it. The mental 
status examination and psychiatric history will ordinarily provide the 
needed information. (See Sec. 220.27 for further information about what 
is needed to show an impairment.)
    (2) If the Board determines that a mental impairment(s) exists, this 
procedure then requires the Board to indicate whether certain medical 
findings which have been found especially relevant to the ability to 
work are present or absent.
    (3) The procedure then requires the Board to rate the degree of 
functional loss resulting from the impairment(s). Four areas of function 
considered by the Board as essential to work have been identified, and 
the degree of functional loss in those areas must be rated on a scale 
that ranges from no limitation to a level of severity which is 
incompatible with the ability to perform those work-related functions.

For the first two areas (activities of daily living and social 
functioning), the rating is done based upon the following five-point 
scale; none, slight, moderate, marked, and extreme. For the third area 
(concentration, persistence, or pace), the following five-point scale is 
used: never, seldom, often, frequent, and constant. For the fourth area 
(deterioration or decompensation in work or work-like settings), the 
following four-point scale is used: never, once or twice, repeated 
(three or more), and continual. The last two points for each of these 
scales represent a degree of limitation which is incompatible with the 
ability to perform the work-related function.
    (c) Use of the procedure to evaluate mental impairments. Following 
the rating of the degree of functional loss resulting from the 
impairment(s), the Board then determines the severity of the mental 
impairment(s).
    (1) If the four areas considered by the Board as essential to work 
have been rated to indicate a degree of limitation as ``none'' or 
``slight'' in the first and second area, ``never'' or ``seldom'' in the 
third area, and ``never'' in the fourth area, the Board can generally 
conclude that the impairment(s) is not severe, unless the evidence 
otherwise indicates that there is significant limitation of the 
claimant's mental ability to do basic work activities (see 
Sec. 220.102).
    (2) If the claimant's mental impairment(s) is severe, the Board must 
then determine if it meets or equals a listed mental impairment. This is 
done by comparing the Board's prior conclusions based on this procedure 
(i.e., the presence of certain medical findings considered by the Board 
as especially relevant to a claimant's ability to work and the Board's 
rating of functional loss resulting from the mental impairment(s)) 
against the criteria of the appropriate listed mental disorder(s).
    (3) If the claimant has a severe impairment(s), but the 
impairment(s) neither meets nor equals the Listings, the Board will then 
do a residual functional capacity assessment for those claimants 
(employees, widow(er)s, and children) whose applications are based on 
disability for any regular employment under the Railroad Retirement Act.
    (4) At all adjudicative levels, the Board will, in each case, 
incorporate the pertinent findings and conclusions based on this 
procedure in its decision rationale. The Board's rationale must show the 
significant history, including examination, laboratory findings, and 
functional limitations that the Board considered in reaching conclusions

[[Page 224]]

about the severity of the mental impairment(s).



Sec. 220.102  Non-severe impairment(s), defined.

    (a) Non-severe impairment(s). An impairment or combination of 
impairments is not severe if it does not significantly limit the 
claimant's physical or mental ability to do basic work activities.
    (b) Basic work activities. Basic work activities means the ability 
and aptitudes necessary to do most jobs. Examples of these include--
    (1) Physical functions such as walking, standing, sitting, lifting, 
pushing, pulling, reaching, carrying, or handling;
    (2) Capacities for seeing, hearing, and speaking;
    (3) Understanding, carrying out, and remembering simple 
instructions;
    (4) Use of judgment;
    (5) Responding appropriately to supervision, co-workers and usual 
work situations; and
    (6) Dealing with changes in a routine work setting.



Sec. 220.103  Two or more unrelated impairments--initial claims.

    (a) Unrelated severe impairments. Two or more unrelated severe 
impairments cannot be combined to meet the 12-month duration test. If 
the claimant has a severe impairment(s) and then develops another 
unrelated severe impairment(s) but neither one is expected to last for 
12 months, he or she cannot be found disabled even though the 2 
impairments in combination last for 12 months.
    (b) Concurrent impairments. If the claimant has 2 or more concurrent 
impairments which, when considered in combination, are severe, the board 
must also determine whether the combined effect of the impairments can 
be expected to continue to be severe for 12 months. If 1 or more of the 
claimant's impairments improves or is expected to improve within 12 
months, so that the combined effect of the claimant's impairments is no 
longer severe, he or she will be found to not meet the 12-month duration 
test.



Sec. 220.104  Multiple impairments.

    To determine whether the claimant's physical or mental impairment or 
impairments are of a sufficient medical severity that such impairment or 
impairments could be the basis of eligiblity under the law, the combined 
effect of all of the claimant's impairments are considered regardless of 
whether any such impairment, if considered separately, would be of 
sufficient severity. If a medically severe combination of impairments is 
found, it will be considered throughout the disability evaluation 
process. If a medically severe combination of impairments is not found, 
the claimant will be determined to be not disabled.



Sec. 220.105  Initial evaluation of a previous disability.

    (a) In some cases, the Board may determine that a claimant is not 
currently disabled but was previously disabled for a specified period of 
time in the past. This can occur when--
    (1) The disability application was filed before the claimant's 
disability ended but the Board did not make the initial determination of 
disability until after the claimant's disability ended; or
    (2) The disability application was filed after the claimant's 
disability ended but no later than the 12th month after the month the 
disability ended.
    (b) When evaluating a claim for a previous disability, the Board 
follows the steps in Sec. 220.100 to determine whether a disability 
existed, and follows the steps in Sec. 220.180 to determine when the 
disability ended.

    Example 1. The claimant sustained multiple fractures to his left leg 
in an automobile accident which occurred on June 16, 1982. For a period 
of 18 months following the accident the claimant underwent 2 surgical 
procedures which restored the functional use of his leg. After a 
recovery period following the last surgery, the claimant returned to 
work on February 1, 1984.
    The claimant, although fully recovered medically and regularly 
employed, filed an application on December 3, 1984 for a determination 
of disability for the period June 16, 1982 through January 31, 1984. The 
Board reviewed his claim in January 1985 and determined that he was 
disabled for the prior period which began June 16, 1982 and continued

[[Page 225]]

through January 31, 1984. A disability annuity is payable to the 
employee only for the period December 1, 1983 through January 31, 1984.
    An annuity may not begin any earlier than the 1st of the 12th month 
before the month in which the application was filed (See part 218 of 
this chapter for the rules on when an annuity may begin).

    Example 2. The claimant is disabled using the same medical facts 
disclosed above, beginning June 16, 1982 (the date of the automobile 
accident). The claimant files an application for a disability annuity, 
dated December 1, 1983. However, as of February 1, 1984, and before the 
Board makes a disability determination, the claimant returns to full-
time work and is no longer considered disabled. The Board reviews the 
claimant's application in May 1984 and finds him disabled for the period 
June 16, 1982 through January 31, 1984. A disability annuity is payable 
to the employee from December 1, 1982 through January 31, 1984. (See 
part 218 of this chapter for the rules on when an annuity may begin).



                    Subpart I--Medical Considerations



Sec. 220.110  Listing of Impairments in appendix 1 of this part.

    (a) Purpose of the Listing of Impairments. The Listing of 
Impairments describes, for each of the major body systems, impairments 
which are considered severe enough to prevent a person from doing any 
substantial gainful activity. Most of the listed impairments are 
permanent or expected to result in death, or a specific statement of 
duration is made. For all others, the evidence must show that the 
impairment has lasted or is expected to last for a continuous period of 
at least 12 months.
    (b) Adult and childhood listings. The Listing of Impairments 
consists of two parts:
    (1) Part A contains medical criteria that apply to claimants age 18 
and over. The medical criteria in part A may also be applied in 
evaluating impairments in claimants under age 18 if the disease 
processes have a similar effect on adults and younger persons.
    (2) Part B contains additional medical criteria that apply only to 
the evaluation of impairments of disabled children who are between the 
ages of 16 and 18. Certain criteria in part A do not give appropriate 
consideration to the particular effects of the disease processes in 
childhood: i.e., when the disease process is generally found only in 
children or when the disease process differs in its effect on children 
than on adults. Additional criteria are included in part B, and the 
impairment categories are, to the extent possible, numbered to maintain 
a relationship with their counterparts in part A. In evaluating 
disability for a child between 16 and 18, part B will be used first. If 
the medical criteria in part B do not apply, then the medical criteria 
in part A will be used.
    (c) How to use the Listing of Impairments. Each section of the 
Listing of Impairments has a general introduction containing definitions 
of key concepts used in that section. Certain specific medical findings, 
some of which are required in establishing a diagnosis or in confirming 
the existence of the impairment for the purpose of this Listing, are 
also given in the narrative introduction. If the medical findings needed 
to support a diagnosis are not given in the introduction or elsewhere in 
the Listing, the diagnosis must still be established on the basis of 
medically acceptable clinical and laboratory techniques. Following the 
introduction in each section, the required level of severity of 
impairment is shown under ``Category of Impairments'' by one or more 
sets of medical findings. The medical findings consist of symptoms, 
signs, and laboratory findings.
    (d) Diagnosis of impairments. The Board will not consider the 
claimant's impairment to be one listed in appendix 1 of this part solely 
because it has the diagnosis of a listed impairment. It must also have 
the findings shown in the Listing of that impairment.
    (e) Addiction to alcohol or drugs. If a claimant has a condition 
diagnosed as addiction to alcohol or drugs, this will not, by itself, be 
a basis for determining whether the claimant is, or is not, disabled. As 
with any other medical condition, the Board will decide whether the 
claimant is disabled based on symptoms, signs, and laboratory findings.



Sec. 220.111  Medical equivalence.

    (a) How medical equivalence is determined. The Board will decide 
that the

[[Page 226]]

claimant's impairment(s) is medically equivalent to a listed impairment 
in appendix 1 of this part if the medical findings are at least equal in 
severity and duration to the listed findings. The Board compares the 
symptoms, signs, and laboratory findings about the claimant's 
impairment(s), as shown in the medical evidence in his or her claim, 
with the medical criteria shown with the listed impairment. If the 
claimant's impairment is not listed, the Board will consider the listed 
impairment most like the claimant's impairment to decide whether his or 
her impairment is medically equal. If the claimant has more than one 
impairment, and none of them meets or equals a listed impairment, the 
Board will review the symptoms, signs, and laboratory findings about the 
claimant's impairments to determine whether the combination of his or 
her impairments is medically equal to any listed impairment.
    (b) Medical equivalence must be based on medical findings. The Board 
will base its decision about whether the claimant's impairment(s) is 
medically equal to a listed impairment on medical evidence only. Any 
medical findings in the evidence must be supported by medically 
acceptable clinical and laboratory diagnostic techniques. The Board will 
also consider the medical opinion given by one or more physicians 
employed or engaged by the Board or the Social Security Administration 
to make medical judgments.



Sec. 220.112  Conclusions by physicians concerning the claimant's disability.

    (a) General. Under the statute, the Board is responsible for making 
the decision about whether a claimant meets the statutory definition of 
disability. A claimant can only be found disabled if he or she is unable 
to do any substantial gainful activity by reason of any medically 
determinable physical or mental impairment which can be expected to 
result in death or which has lasted or can be expected to last for a 
continuous period of not less than 12 months. (See Sec. 220.28). A 
claimant's impairment must result from anatomical, physiological, or 
psychological abnormalities which are demonstrable by medically 
acceptable clinical and laboratory diagnostic techniques. (See 
Sec. 220.27). Except in cases of remarried widows, widowers, and 
surviving divorced spouses, the decision as to whether a claimant is 
disabled may involve more than medical considerations and the Board may 
have to consider such factors as age, education, and past work 
experience. Such vocational factors are not within the expertise of 
medical sources.
    (b) Medical opinions that are conclusive. A medical opinion by a 
treating source will be conclusive as to the medical issues of the 
nature and severity of a claimant's impairment(s) where the Board finds 
that (1) it is fully supported by medically acceptable clinical and 
laboratory diagnostic techniques and (2) it is not inconsistent with the 
other substantial medical evidence of record. A medical opinion that is 
not fully supported will not be conclusive.
    (c) Medical opinions that are not fully supported. If an opinion by 
a treating source(s) is not fully supported, the Board will make every 
reasonable effort (i.e., an initial request and, after 20 days, one 
follow-up request) to obtain from the claimant's treating source(s) the 
relevant evidence that supports the medical opinion(s) before the Board 
makes a determination as to whether a claimant is disabled.

    Example-- In a case involving an organic mental disorder caused by 
trauma to the head, a consultative physician, upon interview with the 
claimant, found only mild disorientation as to time and place. The 
claimant's treating physician reports that the claimant, as the result 
of his impairment, has severe disorientation as to time and place. The 
treating physician supplies office notes which follow the course of the 
claimant's illness from the date of injury to the present. These notes 
indicate that the claimant's condition is such that he has some ``good 
days'' on which he appears to be unimpaired, but generally support the 
treating physician's opinion that the claimant is severely impaired. In 
this case the treating physician's opinion will be given some weight 
over that of the consultative physician.

    (d) Inconsistent medical opinions. Where the Board finds that the 
opinion of a treating source regarding medical issues is inconsistent 
with the evidence

[[Page 227]]

of record, including opinions of other sources that are supported by 
medically acceptable clinical and laboratory diagnostic techniques, the 
Board must resolve the inconsistency. If necessary to resolve the 
inconsistency, the Board will secure additional independent evidence 
and/or further interpretation or explanation from the treating source(s) 
and/or the consultative physician or psychologist. The Board's 
determination will be based on all the evidence in the case record, 
including the opinions of the medical sources. In resolving an 
inconsistency, the Board will give some extra weight to the treating 
source's supported opinion(s) which interprets the medical findings 
about the nature and severity of the impairment(s).
    Example --In a case involving arthritis of the shoulder, where the 
X-rays confirm bone destruction, the examinations indicate minimal 
swelling and inflammation, but the treating source supplies evidence of 
greater restriction in the range of motion than found by the 
consultative physician, the Board will ask the treating source for 
further interpretation of the range of motion studies. If the treating 
source supplies a reasonable explanation. e.g., that the individual's 
condition is subject to periods of aggravation, the treating source's 
explanation will be given some extra weight over that of the 
consultative physician.

    (e) Medical opinions that will not be considered conclusive nor 
given extra weight. The Board will not consider as conclusive nor give 
extra weight to medical opinions which are not in accord with the 
statutory or regulatory standards for establishing disability. Thus, 
opinions that the individual's impairments meet the Listing of 
Impairments in appendix 1 of this part, where the medical findings which 
are the basis for that conclusion would not meet the specific criteria 
applicable to the particular impairment as set out in the Listing will 
not be conclusive nor given extra weight. Likewise, an opinion(s) as to 
the individual's residual functional capacity which is not in accord 
with regulatory requirements set forth in Secs. 220.120 and 220.121 will 
not be conclusive nor given extra weight.

    Example 1-- A medical opinion that an impairment meets listing 2.02 
but the medical findings show that the individual's visual acuity in the 
better eye after best correction is 20/100, would not be conclusive nor 
would it be given extra weight since listing 2.02 requires that the 
remaining vision in the better eye after best correction be 20/200 or 
less.

    Example 2-- A medical opinion that the individual is limited to 
light work when the evidence shows that he or she can lift a maximum of 
50 pounds and lift 25 pounds frequently will not be considered as 
conclusive nor given extra weight. This is because the individual's 
exertional capacity exceeds the criteria set forth in the regulations 
for light work.



Sec. 220.113  Symptoms, signs, and laboratory findings.

    Medical findings consist of symptoms, signs, and laboratory 
findings:
    (a) Symptoms are the claimant's own description of his or her 
physical or mental impairment(s). The claimant's statements alone are 
not enough to establish that there is a physical or mental 
impairment(s).
    (b) Signs are anatomical, physiological, or psychological 
abnormalities which can be observed, apart from the claimant's own 
statements (symptoms). Signs must be shown by medically acceptable 
clinical diagnostic techniques. Psychiatric signs are medically 
demonstrable phenomena which indicate specific abnormalities of 
behavior, affect, thought, memory, orientation and contact with reality. 
They must also be shown by observable facts that can be medically 
described and evaluated.
    (c) Laboratory findings are anatomical, physiological, or 
psychological phenomena which can be shown by the use of medically 
acceptable laboratory diagnostic techniques. Some of these diagnostic 
techniques include chemical tests, electrophysiological studies 
(electrocardiogram, electroencephalogram, etc.) x-rays, and 
psychological tests.



Sec. 220.114  Evaluation of symptoms, including pain.

    The Board considers all of the claimant's symptoms, including pain, 
and the extent to which signs and laboratory findings confirm these 
symptoms. The Board will not find the claimant disabled based on his or 
her symptoms unless medical signs or findings show a

[[Page 228]]

medical impairment that could be reasonably expected to produce those 
symptoms.



Sec. 220.115  Need to follow prescribed treatment.

    (a) What treatment the claimant must follow. In order to get a 
disability annuity, the claimant must follow treatment prescribed by his 
or her physician if this treatment can restore the claimant's ability to 
work.
    (b) When the claimant does not follow prescribed treatment. If the 
claimant does not follow the prescribed treatment without a good reason, 
the Board will find him or her not disabled or, if the claimant is 
already receiving a disability annuity, the Board will stop paying the 
annuity.
    (c) Acceptable reasons for failure to follow prescribed treatment. 
The following are examples of a good reason for not following treatment:
    (1) The specific medical treatment is contrary to the established 
teaching and tenets of the claimant's religion.
    (2) The prescribed treatment would be cataract surgery for one eye, 
when there is an impairment of the other eye resulting in a severe loss 
of vision and is not subject to improvement through surgery.
    (3) Surgery was previously performed with unsuccessful results and 
the same surgery is again being recommended for the same impairment.
    (4) The treatment because of its magnitude (e.g., open heart 
surgery), unusual nature (e.g., organ transplant), or other reason is 
very risky for the claimant.
    (5) The treatment involves amputation of an extremity, or a major 
part of an extremity.



                 Subpart J--Residual Functional Capacity



Sec. 220.120  Residual functional capacity, defined.

    (a) General. (1) The claimant's impairment(s) may cause physical and 
mental limitations that affect what the claimant can do in a work 
setting. Residual functional capacity is what the claimant can do 
despite his or her limitations. If the claimant has more than one 
impairment, the Board will consider all of his or her impairments of 
which the Board is aware. The Board considers the claimant's capacity 
for various functions as described in the following paragraphs: (b) 
physical abilities, (c) mental impairments, and (d) other impairments. 
Residual functional capacity is a medical assessment. However, it may 
include descriptions (even the claimant's) of the limitations that go 
beyond the symptoms that are important in diagnosis and treatment of the 
claimant's medical impairment(s) and may include observations of the 
claimant's work limitations in addition to those usually made during 
formal medical examinations.
    (2) The descriptions and observations of the limitations, when used, 
must be considered along with the rest of the claimant's medical records 
to enable the Board to decide to what extent the claimant's 
impairment(s) keeps him or her from performing particular work 
activities.
    (3) The assessment of the claimant's residual functional capacity 
for work is not a decision on whether the claimant is disabled, but is 
used as the basis for determining the particular types of work the 
claimant may be able to do despite his or her impairment(s). A 
claimant's vocational background (see Secs. 220.125 through 220.134) is 
considered along with his or her residual functional capacity in 
arriving at a disability decision.
    (b) Physical abilities. When the Board assesses the claimant's 
physical abilities, the Board assesses the severity of his or her 
impairment(s) and determines his or her residual functional capacity for 
work activity on a regular and continuing basis. The Board considers the 
claimant's ability to do physical activities such as walking, standing, 
lifting, carrying, pushing, pulling, reaching, handling, and the 
evaluation of other physical functions. A limited ability to do these 
things may reduce the claimant's ability to do work.
    (c) Mental impairments. When the board assesses a claimant's mental 
impairment(s), the Board considers the factors, such as--
    (1) His or her ability to understand, to carry out, and remember 
instructions; and

[[Page 229]]

    (2) His or her ability to respond appropriately to supervision, co-
workers, and work pressures in a work setting.
    (d) Other impairments. Some medically determinable impairments, such 
as skin impairments, epilepsy, and impairments of vision, hearing, or 
other senses, postural and manipulative limitations, and environmental 
restrictions do not limit physical exertion. If the claimant has this 
type of impairment, in addition to one that affects physical exertion, 
the Board considers both in deciding his or her residual functional 
capacity.



Sec. 220.121  Responsibility for assessing and determining residual functional capacity.

    (a) For cases at the initial or reconsideration level, the 
responsibility for determining residual functional capacity rests with 
the bureau of retirement claims. This assessment is based on all the 
evidence the Board has, including any statements regarding what the 
claimant can still do that have been provided by treating or examining 
physicians, consultative physicians, or any other physician designated 
by the Board. In any case where there is evidence which indicates the 
existence of a mental impairment, the bureau of retirement claims will 
not make a residual functional capacity determination without making 
every reasonable effort to ensure that a qualified psychiatrist or 
psychologist has provided a medical review of the case.
    (b) For cases at the hearing level or the three-member-Board review 
level, the responsibility for deciding residual functional capacity 
rests with the hearings officer or the three-member Board, respectively.



                  Subpart K--Vocational Considerations



Sec. 220.125  When vocational background is considered.

    (a) General. The Board will consider vocational factors when the 
claimant is applying for--
    (1) An employee annuity based on disability for any regular 
employment; (See Sec. 220.45(b))
    (2) Widow(er) disability annuity; or
    (3) Child's disability annuity based on disability before age 22.
    (b) Disability determinations in which vocational factors must be 
considered along with medical evidence. When the Board cannot decide 
whether the claimant is disabled on medical evidence alone, the Board 
must use other evidence.
    (1) The Board will use information from the claimant about his or 
her age, education, and work experience.
    (2) The Board will consider the doctors' reports, and hospital 
records, as well as the claimant's own statements and other evidence to 
determine a claimant's residual functional capacity and how it affects 
the work the claimant can do. Sometimes, to do this, the Board will need 
to ask the claimant to have special examinations or tests. (See 
Sec. 220.50.)
    (3) If the Board finds that the claimant can no longer do the work 
he or she has done in the past, the Board will determine whether the 
claimant can do other work (jobs) which exist in significant numbers in 
the national economy.



Sec. 220.126  Relationship of ability to do work and residual functional capacity.

    (a) If the claimant can do his or her previous work (his or her 
usual work or other applicable past work), the Board will determine he 
or she is not disabled.
    (b) If the residual functional capacity is not enough for the 
claimant to do any of his or her previous work, the Board must still 
decide if the claimant can do any other work. To determine whether the 
claimant can do other work, the Board will consider the claimant's 
residual functional capacity, and his or her age, education, and work 
experience. Any work (jobs) that the claimant can do must exist in 
significant numbers in the national economy (either in the region where 
he or she lives or in several regions of the country).



Sec. 220.127  When the only work experience is arduous unskilled physical labor.

    (a) Arduous work. Arduous work is primarily physical work requiring 
a high level of strength or endurance.

[[Page 230]]

The Board will consider the claimant unable to do lighter work and 
therefore, disabled if he or she has--
    (1) A marginal education (see Sec. 220.129);
    (2) Work experience of 35 years or more during which he or she did 
arduous unskilled physical labor; and
    (3) A severe impairment which no longer allows him or her to do 
arduous unskilled physical labor.
    (b) Exceptions. The Board may consider the claimant not disabled 
if--
    (1) The claimant is working or has worked despite his or her 
impairment(s) (except where work is sporadic or not medically 
advisable); or
    (2) Evidence shows that the claimant has training or past work 
experience which enables him or her to do substantial gainful activity 
in another occupation with his or her impairment, either full-time or on 
reasonably regular part-time basis.

    Example: B is a 60-year-old miner with a 4th grade education who has 
a life-long history of arduous physical labor. B says that he is 
disabled because of arthritis of the spine, hips, and knees, and other 
impairments. Medical evidence shows a combination of impairments and 
establishes that these impairments prevent B from performing his usual 
work or any other type of arduous physical labor. His vocational 
background does not show that he has skills or capabilities needed to do 
lighter work which would be readily transferable to another work 
setting. Under these circumstances, the Board will find that B is 
disabled.



Sec. 220.128  Age as a vocational factor.

    (a) General. (1) Age refers to how old the claimaint is 
(chronological age) and the extent to which his or her age affects his 
or her ability to--
    (i) Adapt to a new work situation; and
    (ii) Do work in competition with others.
    (2) In determining disability, the Board does not consider age 
alone. The Board must also consider the claimant's residual functional 
capacity, education, and work experience. If the claimant is unemployed 
because of his or her age and can still do a significant number of jobs 
which exist in the national economy, the Board will find that he or she 
is not disabled. Appendix 2 of this part explains in detail how the 
Board considers age as a vocational factor. However, the Board does not 
apply these age categories mechanically in a borderline situation.
    (b) Younger person. If the claimant is under age 50, the Board 
generally does not consider that his or her age will seriously affect 
the ability to adapt to a new work situation. In some circumstances, the 
Board considers age 45 a handicap in adapting to a new work setting (see 
Rule 201.17 in appendix 2 of this part).
    (c) Person approaching advanced age. If the claimant is closely 
approaching advanced age (50-54), the Board considers that the 
claimant's age, along with a severe impairment and limited work 
experience, may seriously affect the claimant's ability to adjust to a 
significant number of jobs in the national economy.
    (d) Person of advanced age. The Board considers that advanced age 
(55 or over) is the point at which age significantly affects the 
claimant's ability to do substantial gainful activity.
    (1) If the claimant is severly impaired and of advanced age, and he 
or she cannot do medium work (see Sec. 220.132), the claimant may not be 
able to work unless he or she has skills that can be used in less 
demanding jobs which exist in significant numbers in the national 
economy.
    (2) If the claimant is close to retirement age (60-64) and has a 
severe impairment, the Board will not consider him or her able to adjust 
to sedentary or light work unless the claimant has skills which are 
highly marketable.



Sec. 220.129  Education as a vocational factor.

    (a) General. ``Education'' is primarily used to mean formal 
schooling or other training which contributes to the claimant's ability 
to meet vocational requirements, for example, reasoning ability, 
communication skills, and arithmetical ability. If the claimant does not 
have formal schooling, this does not necessarily mean that the claimant 
is uneducated or lacks these abilities. Past work experience and the 
kinds of responsibilities the claimant had when he or she was working 
may show that he or she has intellectual abilities, although the 
claimant may have little

[[Page 231]]

formal education. A claimant's daily activities, hobbies, or the results 
of testing may also show that the claimant has significant intellectual 
ability that can be used to work.
    (b) How the Board evaluates the claimant's education. The importance 
of the claimant's educational background may depend upon how much time 
has passed between the completion of the claimant's formal education and 
the beginning of the claimant's physical or mental impairment(s) and 
what the claimant has done with his or her education in a work or other 
setting. Formal education completed many years before the claimant's 
impairment(s) began, or unused skills and knowledge that were a part of 
the claimant's formal education, may no longer be useful or meaningful 
in terms of ability to work. Therefore, the numerical grade level that 
the claimant completed in school may not represent his or her actual 
educational abilities. These educational abilities may be higher or 
lower than the numerical grade level that the claimant completed. 
However, if there is no other evidence to contradict it, the Board uses 
the claimant's numerical grade level to determine the claimant's 
educational abilities. The term ``education'' also includes how well the 
claimant is able to communicate in English since this ability is often 
acquired or improved by education. In evaluating the claimant's 
educational level, the Board uses the following categories:
    (1) Illiteracy. Illiteracy means the inability to read or write. The 
Board will consider the claimant illiterate if he or she cannot read or 
write a simple message such as instructions or inventory lists even 
though the claimant can sign his or her name. Generally, the illiterate 
claimant has had little or no formal schooling.
    (2) Marginal education. Marginal education means ability in 
reasoning, arithmetic, and language skills which are needed to do 
simple, unskilled types of jobs. Generally, this means a 6th grade or 
less level of education.
    (3) Limited education. Limited education means ability in reasoning, 
arithmetic, and language skills, but not enough to allow a person with 
these educational qualifications to do most of the more complex duties 
needed in semi-skilled or skilled jobs. Generally, a limited education 
is a 7th grade through 11th grade level of education.
    (4) High school education and above. High school and above means 
abilities in reasoning, arithmetic, and language skills acquired through 
formal schooling at a 12th grade level or above. The claimant with this 
level of education is generally considered able to do semi-skilled 
through skilled work.
    (5) Inability to communicate in English. Since the ability to speak, 
read, and understand English is generally learned or increased at 
school, the Board may consider this an educational factor. Because 
English is the dominant language of the country, it may be difficult for 
the claimant who does not speak and understand English to do a job, 
regardless of the amount of education he or she may have in another 
language. The claimant's ability to speak, read and understand English 
will be considered when the Board evaluates what work, if any, he or she 
can do.
    (6) Information about the claimant's education. The Board will ask 
the claimant how long he or she attended school and whether he or she 
can speak, understand, read and write in English, and do at least simple 
calculations in arithmetic. The Board will also consider information 
about how much formal or informal education the claimant received from 
his or her previous work, community projects, hobbies and any other 
activities which might help him or her to work.



Sec. 220.130  Work experience as a vocational factor.

    (a) General--Work experience means skills and abilities the claimant 
has acquired through work he or she has done which show the type of work 
he or she may be expected to do. Work the claimant has already been able 
to do shows the kind of work that he or she may be expected to do. The 
Board considers that the claimant's work experience is relevant and 
applies when it was done within the last 15 years, lasted long enough 
for him or her to learn to do it, and was substantial gainful activity. 
This work experience

[[Page 232]]

is called ``past relevant work.'' The Board does not usually consider 
that work the claimant did 15 years or more before the time the Board is 
deciding whether he or she is disabled (or when the disability insured 
status requirement was last met, if earlier) applies. A gradual change 
occurs in most jobs so that after 15 years, it is no longer realistic to 
expect that skills and abilities acquired in a job done then continue to 
apply. The 15-year guide is intended to insure that remote work 
experience is not currently applied. If the claimant has no work 
experience or worked only ``off-and-on'' or for brief periods of time 
during the 15-year period, the Board generally considers that these do 
not apply. If the claimant has acquired skills through his or her past 
work, the Board considers the claimant to have these work skills unless 
he or she cannot use them in other skilled or semi-skilled work that he 
or she can do. If the claimant cannot use his or her skills in other 
skilled or semi-skilled work, the Board will consider his or her work 
background the same as unskilled. However, even if the claimant has no 
work experience, the Board may consider that the claimant is able to do 
unskilled work because it requires little or no judgment and can be 
learned in a short period of time.
    (b) Information about the claimant's work. (1) Sometimes the Board 
will need information about the claimant's past work to make a 
disability determination. The Board may request work information from--
    (i) The claimant; and
    (ii) The claimant's employer or other person who knows about the 
claimant's work (member of family or co-worker) with the claimant's 
permission.
    (2) The Board will ask for the following information about all the 
jobs the claimant has had in the last 15 years:
    (i) The dates the claimant worked.
    (ii) All the duites the claimant did.
    (iii) Any tools, machinery, and equipment the claimant used.
    (iv) The amount of walking, standing, sitting, lifting and carrying 
the claimant did during the work day, as well as any other physical and 
mental duties of the job.
    (3) If all the claimant's work in the past 15 years has been arduous 
and unskilled, and the claimant has very little education, the Board 
will ask the claimant to tell about all of his or her work from the time 
he or she first began working. (See Sec. 220.45(b).)



Sec. 220.131  Work which exists in the national economy.

    (a) General. The Board considers that work exists in the national 
economy when it exists in significant numbers either in the region where 
the claimant lives or in several other regions of the country. It does 
not matter whether--
    (1) Work exits in the immediate area in which the claimant lives,
    (2) A specific job vacancy exists for the claimant; or
    (3) The claimant would be hired if the claimant applied for work.
    (b) How the Board determines the existence of work. Work exists in 
the national economy when there are a significant number of jobs (in one 
or more occupations) having requirements which the claimant is able to 
meet with his or her physical or mental ability and vocational 
qualifications. Isolated jobs that exist in very limited numbers in 
relatively few locations outside the region where the claimant lives are 
not considered ``work which exists in the national economy.'' The Board 
will not deny the claimant a disability annuity on the basis of the 
existence of these kinds of jobs. The Board will determine that the 
claimant is disabled if the work he or she can do does not exist in the 
national economy. If the work the claimant can do does exist in the 
national economy, the Board will determine that the claimant is not 
disabled.
    (c) Inability to obtain work. The Board will determine that the 
claimant is not disabled if he or she has the residual functional 
capacity and vocational abilities to do work which exists in the 
national economy but the claimant remains unemployed because of--
    (1) His or her inability to get work;
    (2) Lack of work in his or her local area;
    (3) The hiring practices of employers;
    (4) Technological changes in the industry in which the claimant has 
worked;
    (5) Cyclical economic conditions;
    (6) No job openings for the claimant;

[[Page 233]]

    (7) The claimant not actually being hired to do work he or she could 
otherwise do; or
    (8) The claimant not wishing to do a particular type of work.
    (d) Administrative notice of job data. The following sources are 
used when the Board determines that unskilled, sedentary, light and 
medium jobs exist in the national economy:
    (1) Dictionary of Occupational Titles, published by the Department 
of Labor.
    (2) County Business Patterns, published by the Bureau of the Census.
    (3) Census Reports, also published by the Bureau of the Census.
    (4) Occupational Analyses, prepared for the Social Security 
Administration by various State employment agencies.
    (5) Occupational Outlook Handbook, published by the Bureau of Labor 
Statistics.
    (e) Use of vocational experts and other specialists. If the issue in 
determining whether the claimant is disabled is whether his or her work 
skills can be used in other work and the specific occupations in which 
they can be used, or there is a similarly complex issue, the Board may 
use the services of a vocational expert or other specialist. The Board 
will decide whether to use a vocational expert or other specialist.



Sec. 220.132  Physical exertion requirements.

    To determine the physical exertion requirements of work in the 
national economy, jobs are classified as ``sedentary'', ``light'', 
``medium'', ``heavy'', and ``very heavy.'' These terms have the same 
meaning as they have in the Dictionary of Occupational Titles, published 
by the Department of Labor. In making disability determinations the 
Board uses the following definitions:
    (a) Sedentary work. Sedentary work involves lifting no more than 10 
pounds at a time and occasionally lifting or carrying articles like 
docket files, ledgers, and small tools. Although a sedentary job is 
defined as one which involves sitting, a certain amount of walking and 
standing is often necessary in carrying out job duties. Jobs are 
sedentary if walking and standing are required occasionally and the 
other sedentary criteria are met.
    (b) Light work. Light work involves lifting no more than 20 pounds 
at a time with frequent lifting or carrying of objects weighing up to 10 
pounds. Even though the weight lifted may be very little, a job is in 
this category when it requires a good deal of walking or standing, or 
when it involves sitting most of the time with some pushing and pulling 
of arm or leg controls. To be considered capable of performing a full or 
wide range of light work, the claimant must have the ability to do 
substantially all of these activities. If the claimant can do light 
work, the Board determines that he or she can also do sedentary work, 
unless there are additional limiting factors such as loss of fine 
dexerity or inability to sit for long periods of time.
    (c) Medium work. Medium work involves lifting no more than 50 pounds 
at a time with frequent lifting or carrying of objects weighing up to 25 
pounds. If the claimant can do medium work, the Board determines that he 
or she can also do sedentary and light work.
    (d) Heavy work. Heavy work involves lifting no more than 100 pounds 
at a time with frequent lifting or carrying of objects weighing up to 50 
pounds. If the claimant can do heavy work, the Board determines that he 
or she can also do medium, light, and sedentary work.
    (e) Very heavy work. Very heavy work involves lifting objects 
weighing more than 100 pounds at a time with frequent lifting or 
carrying of objects weighing 50 pounds or more. If the claimant can do 
very heavy work, the Board determines that he or she can also do heavy, 
medium, light and sedentary work.



Sec. 220.133  Skill requirements.

    (a) General. To evaluate skills and to help determine the existence 
in the national economy of work the claimant is able to do, occupations 
are classified as unskilled, semi-skilled, and skilled. In classifying 
these occupations, the Board uses materials published by the Department 
of Labor.
    (b) Unskilled work. Unskilled work is work which needs little or no 
judgment to do simple duties that can be learned on the job in a short 
period of time (30 days). The job may or may not require

[[Page 234]]

considerable strength. A job is considered unskilled if the claimant can 
usually learn to do the job in 30 days, and little job training and 
judgment are needed. The claimant does not gain work skills by doing 
unskilled jobs. For example, jobs are considered unskilled if primary 
work duties are--
    (1) Handling;
    (2) Feeding;
    (3) Offbearing (placing or removing materials from machines which 
are automatic or operated by others); or
    (4) Machine tending.
    (c) Semi-skilled work. Semi-skilled work is work which needs some 
skills but does not require doing the more complex work duties. A job 
may be classified as semi-skilled where coordination and dexterity are 
necessary, as when hand or feet must be moved quickly to do repetitive 
tasks. Semi-skilled jobs may require--
    (1) Alertness and close attention to watching machine processes;
    (2) Inspecting, testing, or otherwise looking for irregularities;
    (3) Tending or guarding equipment, property, materials, or persons 
against loss, damage, or injury; or
    (4) Other types of activities which are similarly less complex than 
skilled work but more complex than unskilled work.
    (d) Skilled work. Skilled work requires qualifications in which a 
person uses judgment to determine the machine and manual operations to 
be performed in order to obtain the proper form, quality, or quantity of 
material to be produced. Skilled jobs may require--
    (1) Laying out work;
    (2) Estimating quality;
    (3) Determining suitability and needed quantities of materials;
    (4) Making precise measurements;
    (5) Reading blueprints or other specifications;
    (6) Making necessary computations or mechanical adjustments to 
control or regulate work; or
    (7) Dealing with people, facts, figures or abstract ideas at a high 
level of complexity.
    (e) Skills that can be used in other work (transferability)--(1) 
What the Board means by transferable skills. The Board considers the 
claimant to have skills that can be used in other jobs, when the skilled 
or semi-skilled work activities the claimant did in past work can be 
used to meet the requirements of skilled or semi-skilled work activities 
of other jobs or kinds of work. This depends largely on the similarity 
of occupationally significant work activities among different jobs.
    (2) How the Board determines skills that can be transferred to other 
jobs. Transferability is most probable and meaningful among jobs in 
which--
    (i) The same or a lesser degree of skill is required;
    (ii) The same or similar tools and machines are used; and
    (iii) The same or similar raw materials, products, processes, or 
services are involved.
    (3) Degrees of transferability. There are degrees of transferability 
of skills ranging from very close similarities to remote and incidental 
similarities among jobs. A complete similarity of all three factors is 
not necessary for transferability. However, when skills are so 
specialized or have been acquired in such an isolated vocational setting 
(like many jobs in mining, agriculture, or fishing) that they are not 
readily usable in other industries, jobs, and work settings, they are 
considered not transferable.



Sec. 220.134  Medical-vocational guidelines in appendix 2 of this part.

    (a) The Dictionary of Occupational Titles includes information about 
jobs (classified by their exertional and skill requirements) that exist 
in the national economy. Appendix 2 of this part provides rules using 
this data reflecting major functional and vocational patterns.
    (b) The Board applies that rules in appendix 2 of this part in cases 
where a claimant is not doing substantial gainful activity and is 
prevented by a severe impairment(s) from doing vocationally relevant 
past work.
    (c) The rules in appendix 2 of this part do not cover all possible 
variations of factors. The Board does not apply these rules if one of 
the findings of fact about the claimant's vocational

[[Page 235]]

factors and residual functional capacity is not the same as the 
corresponding criterion of a rule. In these instances, the Board gives 
full consideration to all relevant facts in accordance with the 
definitions and discussions under vocational considerations. However, if 
the findings of fact made about all factors are the same as the rule, 
the Board uses that rule to decide whether that claimant is disabled.



                 Subpart L--Substantial Gainful Activity



Sec. 220.140  General.

    The work that a claimant has done during any period in which the 
claimant believes he or she is disabled may show that the claimant is 
able to do work at the substantial gainful activity level. If the 
claimant is able to engage in substantial gainful activity, the Board 
will find that the claimant is not disabled for any regular employment 
under the Railroad Retirement Act. Even if the work the claimant has 
done was not substantial gainful activity, it may show that the claimant 
is able to do more work than he or she actually did. The Board will 
consider all of the medical and vocational evidence in the claimant's 
file to decide whether or not the claimant has the ability to engage in 
substantial gainful activity.



Sec. 220.141  Substantial gainful activity, defined.

    Substantial gainful activity is work activity that is both 
substantial and gainful.
    (a) Substantial work activity. Substantial work activity is work 
activity that involves doing significant physical or mental activities. 
The claimant's work may be substantial even if it is done on a part-time 
basis or if the claimant does less, gets paid less, or has less 
responsibility than when the claimant worked before.
    (b) Gainful work activity. Gainful work activity is work activity 
that the claimant does for pay or profit. Work activity is gainful if it 
is the kind of work usually done for pay or profit, whether or not a 
profit is realized.
    (c) Some other activities. Generally, the Board does not consider 
activities like taking care of one's self, household tasks, hobbies, 
therapy, school attendance, club activities, or social programs to be 
substantial gainful activity.



Sec. 220.142  General information about work activity.

    (a) The nature of the claimant's work. If the claimant's duties 
require use of the claimant's experience, skills, supervision and 
responsibilities, or contribute substantially to the operation of a 
business, this tends to show that the claimant has the ability to work 
at the substantial gainful activity level.
    (b) How well the claimant performs. The Board considers how well the 
claimant does his or her work when the Board determines whether or not 
the claimant is doing substantial gainful activity. If the claimant does 
his or her work satisfactorily, this may show that the claimant is 
working at the substantial gainful activity level. If the claimant is 
unable, because of his or her impairments, to do ordinary or simple 
tasks satisfactorily without more supervision or assistance than is 
usually given other people doing similar work, this may show that the 
claimant is not working at the substantial gainful activity level. If 
the claimant is doing work that involves minimal duties that make little 
or no demands on the claimant and that are of little or no use to the 
claimant's railroad or non-railroad employer, or to the operation of a 
business if the claimant is self-employed, this does not show that the 
claimant is working at the substantial gainful activity level.
    (c) If the claimant's work is done under special conditions. Even 
though the work the claimant is doing takes into account his or her 
impairment, such as work done in a sheltered workshop or as a patient in 
a hospital, it may still show that the claimant has the necessary skills 
and ability to work at the substantial gainful activity level.
    (d) If the claimant is self-employed. Supervisory, managerial, 
advisory or other significant personal services that the claimant 
performs as a self-employed person may show that the claimant is able to 
do substantial gainful activity.

[[Page 236]]

    (e) Time spent in work. While the time the claimant spends in work 
is important, the Board will not decide whether or not the claimant is 
doing substantial gainful activity only on that basis. The Board will 
still evaluate the work to decide whether it is substantial and gainful 
regardless of whether the claimant spends more time or less time at the 
job than workers who are not impaired and who are doing similar work as 
a regular means of their livelihood.



Sec. 220.143  Evaluation guides for an employed claimant.

    (a) General. The Board uses several guides to decide whether the 
work the claimant has done shows that he or she is able to do 
substantial gainful activity.
    (1) The claimant's earnings may show the claimant has done 
substantial gainful activity. The amount of the claimant's earnings from 
work the claimant has done may show that he or she has engaged in 
substantial gainful activity. Generally, if the claimant worked for 
substantial earnings, this will show that he or she is able to do 
substantial gainful activity. On the other hand, the fact that the 
claimant's earnings are not substantial will not necessarily show that 
the claimant is not able to do substantial gainful activity. The Board 
will generally consider work that the claimant is forced to stop after a 
short time because of his or her impairment(s) as an unsuccessful work 
attempt and the claimant's earnings from that work will not show that 
the claimant is able to do substantial gainful activity.
    (2) The Board considers only the amount the claimant earns. The 
Board does not consider any income not directly related to the 
claimant's productivity when the Board decides whether the claimant has 
done substantial gainful activity. If the claimant's earnings are 
subsidized, the amount of the subsidy is not counted when the Board 
determines whether or not the claimant's work is substantial gainful 
activity. Thus, where work is done under special conditions, the Board 
only considers the part of the claimant's pay which the claimant 
actually ``earns.'' For example, where a handicapped person does simple 
tasks under close and continuous supervision, the Board would not 
determine that the person worked at the substantial gainful activity 
level only on the basis of the amount of pay. A railroad or non-railroad 
employer may set a specific amount as a subsidy after figuring the 
reasonable value of the employee's services. If the claimant's work is 
subsidized and the claimant's railroad and non-railroad employer does 
not set the amount of the subsidy or does not adequately explain how the 
subsidy was figured, the Board will investigate to see how much the 
claimant's work is worth.
    (3) If the claimant is working in a sheltered or special 
environment. If the claimant is working in a sheltered workshop, the 
claimant may or may not be earning the amounts he or she is being paid. 
The fact that the sheltered workshop or similar facility is operating at 
a loss or is receiving some charitable contributions or governmental aid 
does not establish that the claimant is not earning all he or she is 
being paid. Since persons in military service being treated for a severe 
impairment usually continue to receive full pay, the Board evaluates 
work activity in a therapy program or while on limited duty by comparing 
it with similar work in the civilian work force or on the basis of 
reasonable worth of the work, rather than on the actual amount of the 
earnings.
    (b) Earnings guidelines--(1) General. If the claimant is employed, 
the Board first considers the criteria in paragraph (a) of this section 
and Sec. 220.145, and then the guides in paragraphs (b)(2), (3), (4), 
(5), and (6) of this section.
    (2) Earnings that will ordinarily show that the claimant has engaged 
in substantial gainful activity. The Board will consider that the 
earnings from the employed claimant's work activities show that the 
claimant has engaged in substantial gainful activity if--
    (i) The claimant's earnings averaged more than $200 a month in 
calendar years prior to 1976;
    (ii) The claimant's earnings averaged more than $230 a month in 
calendar year 1976;

[[Page 237]]

    (iii) The claimant's earnings averaged more than $240 a month in 
calendar year 1977;
    (iv) The claimant's earnings averaged more than $260 a month in 
calendar year 1978;
    (v) The claimant's earnings averaged more than $280 a month in 
calendar year 1979;
    (vi) The claimant's earnings averaged more than $300 a month in 
calendar years after 1979 and before 1990; or
    (vii) The claimant's earnings averaged more than $500 a month in 
calendar years after 1989.
    (3) Earnings that will ordinarily show that the claimant has not 
engaged in substantial gainful activity. The Board will generally 
consider that the earnings from the employed claimant's work will show 
that the claimant has not engaged in substantial gainful activity if--
    (i) The claimant's earnings averaged less than $130 a month in 
calendar years before 1976;
    (ii) The claimant's earnings averaged less than $150 a month in 
calendar year 1976;
    (iii) The claimant's earnings averaged less than $160 a month in 
calendar year 1977;
    (iv) The claimant's earnings averaged less than $170 a month in 
calendar year 1978;
    (v) The claimant's earnings averaged less than $180 a month in 
calendar year 1979;
    (vi) The claimant's earnings averaged less than $190 a month in 
calendar years after 1979 and before 1990; or
    (vii) The claimant's earnings averaged less than $300 a month in 
calendar years after 1989.
    (4) If the claimant works in a sheltered workshop. If the claimant 
is working in a sheltered workshop or a comparable facility especially 
set up for severely impaired persons, the claimant's earnings and 
activities will ordinarily establish that the claimant has not done 
substantial gainful activity if--
    (i) The claimant's average earnings are not greater than $200 a 
month in calendar years prior to 1976;
    (ii) The claimant's average earnings are not greater than $230 a 
month in calendar year 1976;
    (iii) The claimant's average earnings are not greater than $240 a 
month in calendar year 1977;
    (iv) The claimant's average earnings are not greater than $260 a 
month in calendar year 1978;
    (v) The claimant's average earnings are not greater than $280 a 
month in calendar year 1979; or
    (vi) The claimant's average earnings are not greater than $300 a 
month in calendar years after 1979 and before 1990; or
    (vii) The claimant's average earnings are not greater than $500 a 
month in calendar years after 1989;
    (5) If there is evidence showing that the claimant may have done 
substantial gainful activity. If there is evidence showing that the 
claimant may have done substantial gainful activity, the Board will 
apply the criteria in paragraph (b)(6) of this section regarding 
comparability and value of services.
    (6) Earnings that are not high or low enough to show whether the 
claimant engaged in substantial gainful activity. If the claimant's 
earnings, on the average, are between the amounts shown in paragraph 
(b)(2) and (3) of this section, the Board will generally consider other 
information in addition to the claimant's earnings, such as whether--
    (i) The claimant's work is comparable to that of unimpaired persons 
in the claimant's community who are doing the same or similar 
occupations as their means of livelihood, taking into account the time, 
energy, skill, and responsibility involved in the work; or
    (ii) The claimant's work, although significantly less than that done 
by unimpaired persons, is clearly worth the amounts shown in paragraph 
(b)(2) of this section, according to pay scales in the claimant's 
community.



Sec. 220.144  Evaluation guides for a self-employed claimant.

    (a) If the claimant is a self-employed claimant. The Board will 
consider the claimant's activities and their value to the claimant's 
business to decide whether the claimant has engaged in substantial 
gainful activity if the claimant is self-employed. The Board will not 
consider the claimant's income alone since the amount of income

[[Page 238]]

the claimant actually receives may depend upon a number of different 
factors like capital investment, profit sharing agreements, etc. The 
Board will generally consider work that the claimant is forced to stop 
after a short time because of his or her impairment(s) as an 
unsuccessful work attempt and the claimant's income from that work will 
not show that the claimant is able to do substantial gainful activity. 
The Board will evaluate the claimant's work activity on the value to the 
business of the claimant's services regardless of whether the claimant 
receives an immediate income for his or her services. The Board 
considers that the claimant has engaged in substantial gainful activity 
if--
    (1) The claimant's work activity, in terms of factors such as hours, 
skills, energy output, efficency, duties, and responsibilities, is 
comparable to that of unimpaired persons in the claimant's community who 
are in the same or similar businesses as their means of livelihood;
    (2) The claimant's work activity, although not comparable to that of 
unimpaired persons, is clearly worth the amount shown in 
Sec. 220.143(b)(2) when considered in terms of its value to the 
business, or when compared to the salary that an owner would pay to an 
employed person to do the work the claimant is doing; or
    (3) The claimant renders services that are significant to the 
operation of the business and receives a substantial income from the 
business.
    (b) What the Board means by significant services--(1) Claimants who 
are not farm landlords. If the claimant is not a farm landlord and the 
claimant operates a business entirely by himself or herself, any 
services that the claimant renders are significant to the business. If 
the claimant's business involves the services of more than one person, 
the Board will consider the claimant to be rendering significant 
services if he or she contributes more than half the total time required 
for the management of the business or he or she renders management 
services for more than 45 hours a month regardless of the total 
management time required by the business.
    (2) Claimants who are farm landlords--(i) General. If the claimant 
is a farm landlord, that is, the claimant rents farm land to another, 
the Board will consider the claimant to be rendering significant 
services if the claimant materially participates in the production or 
the management of the production of the things raised on the rented 
farm. If the claimant was given social security earnings credits because 
he or she materially participated in the activities of the farm and he 
or she continues these same activities, the Board will consider the 
claimant to be rendering significant services.
    (ii) Material participation. (A) The claimant will have established 
that he or she is materially participating if he or she--
    (1) Furnishes a large portion of the machinery, tools, and livestock 
used in the production of the things raised on the rented farm; or
    (2) Furnishes or advances monies or assumes financial responsibility 
for a substantial part of the expense involved in the production of the 
things raised on the rented farm.
    (B) The claimant will have presented strong evidence that he or she 
is materially participating if he or she periodically--
    (1) Advise or consults with the other person who under the rental 
agreement produces the things raised on the rented farm; and
    (2) Inspects the production activities on the land.
    (iii) Production. The term ``production'' refers to the physical 
work performed and the expenses incurred in producing the things raised 
on the farm. It includes activities like the actual work of planting, 
cultivating, and harvesting of crops, and the furnishing of machinery, 
implements, seed, and livestock.
    (iv) Management of the production. The term ``management of the 
production'' refers to services performed in making managerial decisions 
about the production of the crop, such as when to plant, cultivate, 
dust, spray or harvest. It includes advising and consulting, making 
inspections, and making decisions on matters, such as rotation of crops, 
the type of crops to be grown, the type of livestock to be raised, and

[[Page 239]]

the type of machinery and implements to be furnished.
    (c) What the Board means by substantial income. After the claimant's 
normal business expenses are deducted from the claimant's gross income 
to determine net income, the Board will deduct the reasonable value of 
any unpaid help, any soil bank payments that were included as farm 
income, and impairment-related work expenses described in Sec. 220.145 
that have not been deducted in determining the claimant's net earnings 
from self-employment. The Board will consider the resulting amount of 
income from the business to be substantial if--
    (1) It averages more than the amounts described in 
Sec. 220.143(b)(2); or
    (2) It averages less than the amounts described in 
Sec. 220.143(b)(2) but the livelihood which the claimant gets from the 
business is either comparable to what it was before the claimant became 
severely impaired or is comparable to that of unimpaired self-employed 
persons in the claimant's community who are in the same or similar 
businesses as their means of livelihood.



Sec. 220.145  Impairment-related work expenses.

    (a) General. When the Board figures the claimant's earnings in 
deciding if the claimant has done substantial gainful activity, the 
Board will subtract the reasonable costs to the claimant of certain 
items and services which, because of his or her impairment(s), the 
claimant needs and uses to enable him or her to work. The costs are 
deductible even though the claimant also needs or uses the items and 
services to carry out daily living functions unrelated to his or her 
work. Paragraph (b) of this section explains the conditions for 
deducting work expenses. Paragraph (c) of this section describes the 
expenses the Board will deduct. Paragraph (d) of this section explains 
when expenses may be deducted. Paragraph (e) of this section describes 
how expenses may be allocated. Paragraph (f) of this section explains 
the limitations on deducting expenses. Paragraph (g) of this section 
explains the Board's verification procedures.
    (b) Conditions for deducting impairment-related work expenses. The 
Board will deduct impairment-related work expenses if--
    (1) The claimant is otherwise disabled as defined in Sec. 220.26;
    (2) The severity of the claimant's impairment(s) requires the 
claimant to purchase (or rent) certain items and services in order to 
work;
    (3) The claimant pays the cost of the item or service. No deduction 
will be allowed to the extent that payment has been or will be made by 
another source. No deduction will be allowed to the extent that the 
claimant has been, could be, or will be reimbursed for such cost by any 
other source (such as through a private insurance plan, Medicare or 
Medicaid, or other plan or agency). For example, if the claimant 
purchases crutches for $80 but the claimant was, could be, or will be 
reimbursed $64 by some agency, plan, or program, the Board will deduct 
only $16;
    (4) The claimant pays for the item or service in a month he or she 
is working (in accordance with paragraph (d) of this section); and
    (5) The claimant's payment is in cash (including checks or other 
forms of money). Payment in kind is not deductible.
    (c) What expenses may be deducted--(1) Payments for attendant care 
services. (i) If because of the claimant's impairment(s) the claimant 
needs assistance in traveling to and from work, or while at work the 
claimant needs assistance with personal functions (e.g., eating, 
toileting) or with work-related functions (e.g., reading, 
communicating), the payments the claimant makes for those services may 
be deducted.
    (ii) If because of the claimant's impairment(s) the claimant needs 
assistance with personal functions (e.g., dressing, administering 
medications) at home in preparation for going to and assistance in 
returning from work, the payments the claimant makes for those services 
may be deducted.
    (iii)(A) The Board will deduct payments the claimant makes to a 
family member for attendant care services only if such person, in order 
to perform the services, suffers an economic loss by terminating his or 
her employment

[[Page 240]]

or by reducing the number of hours he or she worked.
    (B) The Board considers a family member to be anyone who is related 
to the claimant by blood, marriage or adoption, whether or not that 
person lives with the claimant.
    (iv) If only part of the claimant's payment to a person is for 
services that come under the provisions of paragraph (c)(1) of this 
section, the Board will only deduct that part of the payment which is 
attributable to those services. For example, an attendant gets the 
claimant ready for work and helps the claimant in returning from work, 
which takes about 2 hours a day. The rest of the attendant's 8-hour day 
is spent cleaning the claimant's house and doing the claimant's laundry, 
etc. The Board would only deduct one-fourth of the attendant's daily 
wages as an impairment-related work expense.
    (2) Payment for medical devices. If the claimant's impairment(s) 
requires that the claimant utilize medical devices in order to work, the 
payments the claimant makes for those devices may be deducted. As used 
in this subparagraph, medical devices include durable medical equipment 
which can withstand repeated use, is customarily used for medical 
purposes, and is generally not useful to a person in the absence of an 
illness or injury. Examples of durable medical equipment are 
wheelchairs, hemodialysis equipment, canes, crutches, inhalators and 
pacemakers.
    (3) Payments for prosthetic devices. If the claimant's impairment(s) 
requires that the claimant utilize a prosthetic device in order to work, 
the payments the claimant makes for that device can be deducted. A 
prosthetic device is that which replaces an internal body organ or 
external body part. Examples of prosthetic devices are artificial 
replacements of arms, legs and other parts of the body.
    (4) Payments for equipment--(i) Work-related equipment. If the 
claimant's impairment(s) requires that the claimant utilize special 
equipment in order to do his or her job, the payments the claimant makes 
for that equipment may be deducted. Examples of work-related equipment 
are one-hand typewriters, vision aids, sensory aids for the blind, 
telecommunication devices for the deaf and tools specifically designed 
to accommodate a person's impairment(s).
    (ii) Residential modifications. If the claimant's impairment(s) 
requires that the claimant make modifications to his or her residence, 
the location of the claimant's place of work will determine if the cost 
of these modifications will be deducted. If the claimant is employed 
away from home, only the cost of changes made outside of the claimant's 
home to permit the claimant to get to his or her means of transportation 
(e.g., the installation of an exterior ramp for a wheelchair confined 
person or special exterior railings or pathways for someone who requires 
crutches) will be deducted. Costs relating to modifications of the 
inside of the claimant's home will not be deducted. If the claimant 
works at home, the costs of modifying the inside of the claimant's home 
in order to create a working space to accommodate the claimant's 
impairment(s) will be deducted to the extent that the changes pertain 
specifically to the space in which the claimant works. Examples of such 
changes are the enlargement of a doorway leading into the workspace or 
modification of the workspace to accommodate problems in dexterity. 
However, if the claimant is self-employed at home, any cost deducted as 
a business expense cannot be deducted as an impairment-related work 
expense.
    (iii) Non-medical applicances and equipment. Expenses for appliances 
and equipment which the claimant does not ordinarily use for medical 
purposes are generally not deductible. Examples of these items are 
portable room heaters, air conditioners, humidifiers, dehumidifiers, and 
electric air cleaners. However, expenses for such items may be 
deductible when unusual circumstances clearly establish an impairment-
related and medically verified need for such an item because it is for 
the control of the claimant's disabling impairment(s), thus enabling the 
claimant to work. To be considered essential, the item must be of such a 
nature that if it were not available to the claimant there would be an 
immediate adverse impact on the claimant's ability to function in his or 
her work activity. In this situation, the expense

[[Page 241]]

is deductible whether the item is used at home or in the working place. 
An example would be the need for an electric air cleaner by a person 
with severe respiratory disease who cannot function in a non-purified 
air environment. An item such as an exercycle is not deductible if used 
for general physical fitness. If an exercycle is prescribed and used as 
necessary treatment to enable the claimant to work, the Board will 
deduct payments the claimant makes toward its cost.
    (5) Payments for drugs and medical services. (i) If the claimant 
must use drugs or medical services (including diagnostic procedures) to 
control his or her impairment(s), the payments the claimant makes for 
them may be deducted. The drugs or services must be prescribed (or 
utilized) to reduce or eliminate symptoms of the claimant's 
impairment(s) or to slow down its progression. The diagnostic procedures 
must be performed to ascertain how the impairment(s) is progressing or 
to determine what type of treatment should be provided for the 
impairment(s).
    (ii) Examples of deductible drugs and medical services are anti-
convulsant drugs to control epilepsy or anticonvulsant blood level 
monitoring; antidepressant medication for mental impairments; medication 
used to allay the side effects of certain treatments; radiation 
treatment or chemotherapy for cancer patients; corrective surgery for 
spinal impairments; electroencephalograms and brain scans related to a 
disabling epileptic impairment; tests to determine the efficacy of 
medication on a diabetic condition; and immunosuppressive medications 
that kidney transplant patients regularly take to protect against graft 
rejection.
    (iii) The Board will only deduct the costs of drugs or services that 
are directly related to the claimant's impairment(s). Examples of non-
deductible items are routine annual physical examinations, optician 
services (unrelated to a disabling visual impairment) and dental 
examinations.
    (6) Payments for similar items and services--(i) General. If the 
claimant is required to utilize items and services not specified in 
paragraphs (c)(1) through (5) of this section, but which are directly 
related to his or her impairment(s) and which the claimant needs to 
work, their costs are deductible. Examples of such items and services 
are medical supplies and services not discussed above, the purchase and 
maintenance of a dog guide which the claimant needs to work, and 
transportation.
    (ii) Medical supplies and services not described above. The Board 
will deduct payments the claimant makes for expendable medical supplies, 
such as incontinence pads, catheters, bandages, elastic stockings, face 
masks, irrigating kits, and disposable sheets and bags. The Board will 
also deduct payments the claimant makes for physical therapy which the 
claimant requires because of his or her impairment(s) and which the 
claimant needs in order to work.
    (iii) Payments for transportation costs. The Board will deduct 
transportation costs in these situations:
    (A) The claimant's impairment(s) requires that in order to get to 
work the claimant needs a vehicle that has structural or operational 
modifications. The modifications must be critical to the claimant's 
operation or use of the vehicle and directly related to the claimant's 
impairment(s). The Board will deduct the cost of the modifications, but 
not the cost of the vehicle. The Board will also deduct a mileage 
allowance for the trip to and from work. The allowance will be based on 
data compiled by the Federal Highway Administration relating to vehicle 
operating costs.
    (B) The claimant's impairment(s) requires the claimant to use driver 
assistance, taxicabs or other hired vehicles in order to work. The Board 
will deduct amounts paid to the driver and, if the claimant's own 
vehicle is used, the Board will also deduct a mileage allowance, as 
provided in paragraph (c)(6)(iii)(A) of this section, for the trip to 
and from work.
    (C) The claimant's impairment(s) prevents the claimant from taking 
available public transportation to and from work and the claimant must 
drive his or her (unmodified) vehicle to work. If the Board can verify 
through the claimant's physician or other sources that the need to drive 
is caused by the claimant's impairment(s) (and

[[Page 242]]

not due to the unavailability of public transportation), the Board will 
deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) of 
this section, for the trip to and from work.
    (7) Payments for installing, maintaining, and repairing deductible 
items. If the device, equipment, appliance, etc., that the claimant 
utilizes qualifies as a deductible item as described in paragraphs 
(c)(2), (3), (4) and (6) of this section, the costs directly related to 
installing, maintaining and repairing these items are also deductible. 
(The costs which are associated with modifications to a vehicle are 
deductible. Except for a mileage allowance, as provided for in paragraph 
(c)(6)(iii)(A) of this section, the costs which are associated with the 
vehicle itself are not deductible.)
    (d) When expenses may be deducted--(1) Effective date. To be 
deductible, an expense must be incurred after November 30, 1980. An 
expense may be considered incurred after that date if it is paid 
thereafter even though pursuant to a contract or other arrangement 
entered into before December 1, 1980.
    (2) Payments for services. A payment the claimant makes for services 
may be deducted if the services are received while the claimant is 
working and the payment is made in a month the claimant is working. The 
Board considers the claimant to be working even though he or she must 
leave work temporarily to receive the services.
    (3) Payments for items. A payment the claimant makes toward the cost 
of a deductible item (regardless of when it is acquired) may be deducted 
if payment is made in a month claimant is working. See paragraph (e)(4) 
of this section when purchases are made in anticipation of work.
    (e) How expenses are allocated--(1) Recurring expenses. The claimant 
may pay for services on a regular periodic basis, or the claimant may 
purchase an item on credit and pay for it in regular periodic 
installments or the claimant may rent an item. If so, each payment the 
claimant makes for the services and each payment the claimant makes 
toward the purchase or rental (including interest) is deductible in the 
month it is made.

    Example  B starts work in October 1981 at which time she purchases a 
medical device at a cost of $4,800 plus interest charges of $720. Her 
monthly payments begin in October. She earns and receives $400 a month. 
The term of the installment contract is 48 months. No downpayment is 
made. The monthly allowable deduction for the item would be $115 ($5,520 
divided by 48) for each month of work during the 48 months.

    (2) Non-recurring expenses. Part or all of the claimant's expenses 
may not be recurring. For example, the claimant may make a one-time 
payment in full for an item or service or make a downpayment. If the 
claimant is working when he or she makes the payment, the Board will 
either deduct the entire amount in the month the claimant pays it or 
allocate the amount over a 12-consecutive-month period beginning with 
the month of payment, whichever the claimant selects.

    Example  A begins working in October 1981 and earns $525 a month. In 
the same month, he purchases and pays for a deductible item at a cost of 
$250. In this situation the Board could allow a $250 deduction for 
October 1981, reducing A's earnings below the substantial gainful 
activity level for that month.
    If A's earnings had been $15 above the substantial gainful activity 
earnings amount, A probably would select the option of projecting the 
$250 payment over the 12-month period, October 1981-September 1982, 
giving A an allowable deduction of $20.83 a month for each month of work 
during that period. This deduction would reduce A's earnings below the 
substantial gainful activity level for 12 months.

    (3) Allocating downpayments. If the claimant makes a downpayment, 
the Board will, if the claimant chooses, make a separate calculation for 
the downpayment in order to provide for uniform monthly deductions. In 
these situations the Board will determine the total payment that the 
claimant will make over a 12-consecutive-month period beginning with the 
month of the downpayment and allocate that amount over the 12 months. 
Beginning with the 13th month, the regular monthly payment will be 
deductible. This allocation process will be for a shorter period if the 
claimant's regular monthly payments will extend over a period of less 
than 12 months.

    Example 1.  C starts working in October 1981, at which time he 
purchases special equipment at a cost of $4,800, paying $1,200

[[Page 243]]

down. The balance of $3,600, plus interest of $540, is to be repaid in 
36 installments of $115 a month beginning November 1981. C earns $500 a 
month. He chooses to have the downpayment allocated. In this situation 
the Board would allow a deduction of $205.42 a month for each month of 
work during the period October 1981 through September 1982. After 
September 1982, the deduction amount would be the regular monthly 
payment of $115 for each month of work during the remaining installment 
period.

                                                                        
                                                                        
                                                                        
Explanation:                                                            
Downpayment in October 1981.........................              $1,200
  Monthly payments:                                                     
    November 1981 through September 1982............               1,265
                                                     -------------------
                                                       12/ $2,465=205.42
                                                                        

    Example 2. D, while working, buys a deductible item in July 1981, 
paying $1,450 down. However, his first monthly payment of $125 is not 
due until September 1981. D chooses to have the downpayment allocated. 
In this situation, the Board would allow a deduction of $225 a month for 
each month of work during the period July 1981 through June 1982. After 
June 1982, the deduction amount would be the regular monthly payment of 
$125 for each month of work.

                                                                        
                                                                        
                                                                        
Explanation:                                                            
Downpayment in July 1981............................              $1,450
  Monthly payments:                                                     
    September 1981 through June 1982................               1,250
                                                     -------------------
                                                         12/ $2,700=$225
                                                                        

    (4) Payments made in anticipation of work. A payment made toward the 
cost of a deductible item that the claimant made in any of the 11 months 
preceding the month he or she started working will be taken into account 
in determining the claimant's impairment-related work expenses. When an 
item is paid for in full during the 11 months preceding the month the 
claiment started working, the payment will be allocated over the 12-
consecutive-month period beginning with the month of the payment. 
However, the only portion of the payment which may be deductible is the 
portion allocated to the month work begins and the following months. For 
example, if an item is purchased 3 months before the month work began 
and is paid for with a one-time payment of $600, the deductible amount 
would be $450 ($600 divided by 12, multiplied by 9). Installment 
payments (including a downpayment) that the claimant made for a 
particular item during the 11 months preceding the month he or she 
started working will be totalled and considered to have been made in the 
month of the claimant's first payment for that item within this 11-month 
period. The sum of these payments will be allocated over the 12-
consecutive-month period beginning with the month of the claimant's 
first payment (but never earlier than 11 months before the month work 
began). However, the only portion of the total which may be deductible 
is the portion allocated to the month work begins and the following 
months. For example, if an item is purchased 3 months before the month 
work began and is paid for in 3 monthly installments of $200 each, the 
total payment of $600 will be considered to have been made in the month 
of the first payment, that is, 3 months before the month work began. The 
deductible amount would be $450 ($600 divided by 12, multiplied by 9). 
The amount, as determined by these formulas, will then be considered to 
have been paid in the first month of work. The Board will deduct either 
this entire amount in the first month of work or allocate it over a 12-
consecutive-month period, beginning with the first month of work, 
whichever the claimant selects. In the above examples, the claimant 
would have the choice of having the entire $450 deducted in the first 
month of work or having $37.50 a month ($450 divided by 12) deducted for 
each month that he or she works over a 12-consecutive-month period, 
beginning with the first month of work. To be deductible, the payments 
must be for durable items such as medical devices, prostheses, work-
related equipment, residential modifications, non-medical appliances and 
vehicle modifications. Payments for services and expendable items such 
as drugs, oxygen, diagnostic procedures, medical supplies and vehicle 
operating costs are not deductible for the purpose of this paragraph.
    (f) Limits on deductions. (1) The Board will deduct the actual 
amounts the claimant pays towards his or her impairment-related work 
expenses unless

[[Page 244]]

the amounts are unreasonable. With respect to durable medical equipment, 
prosthetic devices, medical services, and similar medically-related 
items and services, the Board will apply the prevailing charges under 
Medicare (Part B of the title XVIII, Health Insurance for the Aged and 
Disabled) to the extent that this information is readily available. 
Where the Medicare guides are used, the Board will consider the amount 
that the claimant pays to be reasonable if it is no more than the 
prevailing charge for the same item or service under the Medicare 
guidelines. If the amount the claimant actually pays is more than the 
prevailing charge for the same item under the Medicare guidelines, the 
Board will deduct from the claimant's earnings the amount the claimant 
paid to the extent he or she establishes that the amount is consistent 
with the standard or normal charge for the same or similar item or 
service in his or her community. For items and services that are not 
listed in the Medicare guidelines, and for items and services that are 
listed in the Medicare guidelines but for which such guides cannot be 
used because the information is not readily available, the Board will 
consider the amount the claimant pays to be reasonable if it does not 
exceed the standard or normal charge for the same or similar item or 
service in the claimant's community.
    (2) Impairment-related work expenses are not deducted in computing 
the claimant's earnings for purposes of determining whether the 
claimant's work was ``services'' as described in Sec. 220.170.
    (3) The decision as to whether the claimant performed substantial 
gainful activity in a case involving impairment-related work expenses 
for items or services necessary for the claimant to work generally will 
be based upon the claimant's ``earnings'' and not on the value of 
``services'' the claimant rendered. (See Secs. 220.143 (b)(6)(i) and 
(ii), and 220.144(a)). This is not necessarily so, however, if the 
claimant is in a position to control or manipulate his or her earnings.
    (4) No deduction will be allowed to the extent that any other source 
has paid or will pay for an item or service. No deduction will be 
allowed to the extent that the claimant has been, could be, or will be 
reimbursed for payments he or she made. (See paragraph (b)(3) of this 
section.)
    (5) The provisions described in the foregoing paragraphs in this 
section are effective with respect to expenses incurred on or after 
December 1, 1980, although expenses incurred after November 1980, as a 
result of contractual or other arrangements entered into before December 
1980, are deductible. For months before December 1980, the Board will 
deduct impairment-related work expenses from the claimant's earnings 
only to the extent they exceeded the normal work-related expenses the 
claimant would have had if the claimant did not have his or her 
impairment(s). The Board will not deduct expenses, however, for those 
things with the claimant needed even when he or she was not working.
    (g) Verification. The Board will verify the claimant's need for 
items or services for which deductions are claimed, and the amount of 
the charges for those items or services. The claimant will also be asked 
to provide proof that he or she paid for the items or services.



           Subpart M--Disability Annuity Earnings Restrictions



Sec. 220.160  How work for a railroad employer affects a disability annuity.

    A disability annuity is not payable and the annuity must be returned 
for any month in which the disabled annuitant works for an employer as 
defined in part 202 of this chapter.



Sec. 220.161  How work affects an employee disability annuity.

    In addition to the condition in Sec. 220.160, the employee's 
disability annuity is not payable and the employee must return the 
annuity payment for any month in which the employee earns more than $400 
(after deduction of impairment-related work expenses) in employment or 
self-employment of any kind. Any annuity amounts withheld because the 
annuitant earned over $400 in a month may be paid after the end of the 
year, as shown in Sec. 220.164. The $400 monthly limit no longer applies 
when the employee becomes 65

[[Page 245]]

years old and the disability annuity is converted to an age annuity. See 
Sec. 220.145 for the definition of impairment-related work expenses.



Sec. 220.162  Earnings report.

    (a) General. Any annuitant receiving an annuity based on disability 
must report to the Board any work and earnings as described in 
Sec. 220.160 and Sec. 220.161. The report may be a written or oral 
statement by the annuitant, or a person acting for the annuitant, made 
or sent to a representative of the Board. The report should include the 
name and address of the railroad or non-railroad employer, a description 
of the work and the amount of gross wages (before deductions) or the net 
income from self-employment (earnings after deducting business 
expenses).
    (b) Employee reports. In addition to the requirement described in 
(a), a report of earnings over $400 a month must be made before the 
employee accepts a disability annuity (the annuity payment is issued and 
not returned) for the second month after the first month in which 
earnings are over $400. Along with the report, the employee must return 
the annuity payment for any month in which he or she earns over $400.



Sec. 220.163  Employee penalty deductions.

    If the employee earns over $400 in a month and does not report it 
within the time limit shown in Sec. 220.162(b), a penalty is imposed. 
The penalty deduction for the first failure to report equals the annuity 
amount for the first month in which the employee earned over $400. The 
deduction for a second or later failure to report equals the annuity 
amount for each month in which the employee earned over $400 and failed 
to report it on time.



Sec. 220.164  Employee end-of-year adjustment.

    (a) General. After the end of a year, the employee whose annuity was 
withheld for earnings over $400 in a month receives a form on which to 
report his or her earnings for the year.
    (b) Earnings are less than $5000. If the employee's yearly earnings 
are less than $5000, all annuity payments and penalties withheld during 
the year because of earnings over $4800 are paid.
    (c) Earnings are $5000 or more. (1) If the employee's yearly 
earnings are $5000 or more, the annuity payments are adjusted so that 
the employee does not have more than one regular deduction for every 
$400 of earnings over $4800. The last $200 or more of earnings over 
$4800 is treated as if it were $400. If the annuity rate changes during 
the year, any annuities due at the end of the year are paid first for 
months in which the annuity rate is higher. Penalty deductions may also 
apply as described in paragraph (c)(2) of this section.
    (2) If the employee's yearly earnings are $5000 or more and the 
employee failed to report monthly earnings over $400 within the time 
limit described in Sec. 220.162(b), penalty deductions will also apply. 
If it is the employee's first failure to report, the penalty deduction 
is equal to one month's annuity. If it is the employee's second or later 
failure to report, the penalty deduction equals the annuity amount for 
each month in which the employee earned over $400 and failed to report 
it on time.
    (d) This section is illustrated by the following examples:

    Example 1: Employee is awarded a disability annuity based upon his 
inability to engage in his regular railroad occupation effective January 
1, 1989. During that year, he works April through October, for which he 
receives $785 per month. He does not report these earnings to the Board 
until January of the following year. The employee is considered to have 
earned $5600 (7 x $785=$5495, which is rounded up to the nearest $400). 
He forfeits three months of annuities:
[GRAPHIC] [TIFF OMITTED] TC14NO91.107

    Example 2: The same employee in the following year also works April 
through October, for which he receives $785 per month. This time he 
reports the earnings on October 31. This year he forfeits 6 months of 
annuity payments, 2 due to earnings, computed as above, and 4 more due 
to penalty deductions for failure to report earnings over $400 for the 
months April through July. There are no penalty deductions with respect 
to the months August, September, and October, since the employee 
reported these earnings prior to accepting an annuity for the second

[[Page 246]]

month after the month of earnings in excess of $400.



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



Sec. 220.170  The trial work period.

    (a) Definition of the trial work period. The trial work period is a 
period during which the annuitant may test his or her ability to work 
and still be considered disabled. The trial work period begins and ends 
as described in paragraph (e) of this section. During this period, the 
annuitant may perform ``services'' (see paragraph (b) of this section) 
in as many as 9 months, but these months do not have to be consecutive. 
The Board will not consider those services as showing that the 
annuitant's disability has ended until the annuitant has performed 
services in at least 9 months. However, after the trial work period has 
ended, the Board will consider the work the annuitant did during the 
trial work period in determining whether the annuitant's disability has 
ended at any time after the trial work period.
    (b) What the Board means by services. When used in this section, 
``services'' means any activity, even though it is not substantial 
gainful activity, which is done by the annuitant in employment or self-
employment for pay or profit, or is the kind normally done for pay or 
profit. If the annuitant is employed, the Board will consider his or her 
work to be ``services'' if in any calendar year after 1989 the annuitant 
earns more than $200 a month ($75 a month is the figure for earnings in 
any calendar year before 1989). If the annuitant is self-employed, the 
Board will consider his or her activities ``services'' if in any 
calendar year after 1989 the annuitant's net earnings are more than $200 
a month, ($75 a month is the figure for earnings in any calendar year 
before 1989), or the annuitant works more than 40 hours a month in the 
business in any calendar year after 1989 (15 hours a month is the figure 
for calendar years before 1990). The Board generally does not consider 
work to be ``services'' when it is done without remuneration or merely 
as therapy or training, or when it is work usually done in a daily 
routine around the house, or in self-care.
    (c) Limitations on the number of trial work periods. The annuitant 
may have only one trial work period during each period in which he or 
she is disabled for any regular employment as defined in Sec. 220.26.
    (d) Who is and is not entitled to a trial work period. (1) 
Generally, the annuitant is entitled to a trial work period if he or she 
is entitled to an annuity based on disability.
    (2) An annuitant is not entitled to a trial work period if he or she 
is in a second period of disability for which he or she did not have to 
complete a waiting period before qualifying for a disability annuity.
    (e) Payment of the disability annuity during the trial work period. 
(1) The disability annuity of an employee, child, or widow(er) who is 
disabled for any regular employment will not be paid for any month in 
the trial work period in which the annuitant works for an employer 
covered by the Railroad Retirement Act (see Sec. 220.160).
    (2) The disability annuity of an employee who is disabled for any 
regular employment will not be paid for any month in this period in 
which the employee annuitant earns more than $400 in employment or self-
employment (see Sec. 220.161 and Sec. 220.164).
    (3) If the disability annuity for an employee, child, or widow(er) 
who is disabled for any regular employment is stopped because of work 
during the trial work period, and the disability annuitant discontinues 
that work before the end of the trial work period, the disability 
annuity may be started again without a new application and a new 
determination of disability.
    (f) When the trial work period begins and ends. (1) The trial work 
period begins with whichever of the following calendar months is the 
later--
    (i) The annuity beginning date;
    (ii) The month after the end of the appropriate waiting period; or
    (iii) The month the application for disability is filed.
    (2) The trial work period ends with the close of whichever of the 
following calendar months is the earlier--
    (i) The 9th month (whether or not the months have been consecutive) 
in

[[Page 247]]

which the annuitant performed services; or
    (ii) The month in which new evidence, other than evidence relating 
to any work the annuitant did during the trial work period, shows that 
the annuitant is not disabled, even though he or she has not worked a 
full 9 months. The Board may find that the annuitant's disability has 
ended at any time during the trial work period if the medical or other 
evidence shows that the annuitant is no longer disabled.



Sec. 220.171  The reentitlement period.

    (a) General. (1) The reentitlement period is an additional period 
after the 9 months of trial work during which the annuitant may continue 
to test his or her ability to work if he or she has a disabling 
impairment(s).
    (2) The disability annuity of an employee, child, or widow(er) who 
is disabled for any regular employment will not be paid for--
    (i) Any month, after the 3rd month, in this period in which the 
annuitant does substantial gainful activity; or
    (ii) Any month in this period in which the annuitant works for an 
employer covered by the Railroad Retirement Act ( see Sec. 220.160).
    (3) The disability annuity of an employee who is disabled for any 
regular employment will not be paid for any month in this period in 
which the employee annuitant earns more than $400 in employment or self-
employment (see Sec. 220.161 and Sec. 220.164).
    (4) If the disability annuity of an employee, child or widow(er) who 
is disabled for any regular employment is stopped because of work during 
the trial work period or reentitlement period, and the disability 
annuitant discontinues that work before the end of either period, the 
disability annuity may be started again without a new application or a 
new determination of disability.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of nine months 
of trial work but cannot begin earlier than December 1, 1980. It ends 
with whichever is earlier--
    (1) The month before the first month in which the annuitant's 
impairment(s) no longer exists or is not medically disabling; or
    (2) The last day of the 36th month following the end of the 
annuitant's trial work period.
    (c) When the annuitant is not entitled to a reentitlement period. 
The annuitant is not entitled to a reentitlement period if--
    (1) He or she is not entitled to a trial work period; or
    (2) His or her disability ended before the annuitant completed nine 
months of trial work in that period in which he or she was disabled.



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



Sec. 220.175  Responsibility to notify the Board of events which affect disability.

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



Sec. 220.176  When disability continues or ends.

    There is a statutory requirement that, if an annuitant is entitled 
to a disability annuity, the annuitant's continued entitlement to such 
an annuity must be reviewed periodically until the employee or child 
annuitant reaches age 65 and the widow(er) annuitant reaches age 60. 
When the annuitant is entitled to a disability annuity as a disabled 
employee, disabled widow(er) or as a person disabled since childhood, 
there are a number of factors to be considered in deciding whether his 
or her disability continues. The Board must first consider whether the 
annuitant has worked and, by doing so, demonstrated the ability to 
engage in substantial gainful activity.

[[Page 248]]

If so, the disability will end. If the annuitant has not demonstrated 
the ability to engage in substantial gainful activity, then the Board 
must determine if there has been any medical improvement in the 
annuitant's impairment(s) and, if so, whether this medical improvement 
is related to the annuitant's ability to work. If an impairment(s) has 
not medically improved, the Board must consider whether one or more of 
the exceptions to medical improvement applies. If medical improvement 
related to ability to work has not occurred and no exception applies, 
the disability will continue. Even the medical improvement related to 
ability to work has occurred or an exception applies (see Sec. 220.179 
for exceptions), in most cases the Board must also show that the 
annuitant is currently able to engage in substantial gainful activity 
before it can find that the annuitant is no longer disabled.



Sec. 220.177  Terms and definitions.

    There are several terms and definitions which are important to know 
in order to understand how the Board reviews whether a disability for 
any regular employment continues:
    (a) Medical improvement. Medical improvement is any decrease in the 
medical severity of an impairment(s) which was present at the time of 
the most recent favorable medical decision that the annuitant was 
disabled or continued to be disabled. A determination that there has 
been a decrease in medical severity must be based on a comparison of 
prior and current medical evidence showing changes (improvement) in the 
symptoms, signs or laboratory findings associated with the 
impairment(s).

    Example 1:  The claimant was awarded a disability annuity due to a 
herniated disc. At the time of the Board's prior decision granting the 
claimant an annuity he had had a laminectomy.
    Postoperatively, a myelogram still shows evidence of a persistant 
deficit in his lumbar spine. He had pain in his back, and pain and a 
burning sensation in his right foot and leg. There were no muscle 
weakness or neurological changes and a modest decrease in motion in his 
back and leg. When the Board reviewed the annuitant's claim to determine 
whether his disability should be continued, his treating physician 
reported that he had seen the annuitant regularly every 2 to 3 months 
for the past 2 years. No further myelograms had been done, complaints of 
pain in the back and right leg continued especially on sitting or 
standing for more than a short period of time. The annuitant's doctor 
further reported a moderately decreased range of motion in the 
annuitant's back and right leg, but again no muscle atrophy or 
neurological changes were reported. Medical improvement has not occurred 
because there has been no decrease in the severity of the annuitant's 
back impairment as shown by changes in symptoms, signs or laboratory 
findings.

    Example 2: The claimant was awarded a disability annuity due to 
rheumatoid arthritis. At the time, laboratory findings were positive for 
this impairment. The claimant's doctor reported persistent swelling and 
tenderness of the claimant's fingers and wrists and that he complained 
of joint pain. Current medical evidence shows that while laboratory 
tests are still positive for rheumatoid arthritis, the annuitant's 
impairment has responded favorably to therapy so that for the last year 
his fingers and wrists have not been significantly swollen or painful. 
Medical improvement has occurred because there has been a decrease in 
the severity of the annuitant's impairment as documented by the current 
symptoms and signs reported by his physician. Although the annuitant's 
impairment is subject to temporary remission and exacerbations, the 
improvement that has occurred has been sustained long enough to permit a 
finding of medical improvement. The Board would then determine if this 
medical improvement is related to the annuitant's ability to work.

    (b) Medical improvement not related to ability to do work. Medical 
improvement is not related to the annuitant's ability to work if there 
has been a decrease in the severity of the impairment(s) (as defined in 
paragraph (a) of this section) present at the time of the most recent 
favorable medical decision, but no increase in that annuitant's 
functional capacity to do basic work activities as defined in paragraph 
(d) of this section. If there has been any medical improvement in an 
annuitant's impairment(s), but it is not related to the annuitant's 
ability to do work and none of the exceptions applies, the annuity will 
be continued.

    Example: An annuitant was 65 inches tall and weighed 246 pounds at 
the time his disability was established. He had venous insufficiency and 
persistent edema in his legs. At the time, the annuitant's ability to do 
basic work activities was affected because he was

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able to sit for 6 hours, but was able to stand or walk only 
occasionally. At the time of the Board's continuing disability review, 
the annuitant had undergone a vein stripping operation. He now weighed 
220 pounds and had intermittent edema. He is still able to sit for 6 
hours at a time and to stand or walk only occasionally although he 
reports less discomfort on walking. Medical improvement has occurred 
because there has been a decrease in the severity of the existing 
impairment as shown by his weight loss and the improvement in his edema. 
This medical improvement is not related to his ability to work, however, 
because his functional capacity to do basic work activities (i.e., the 
ability to sit, stand and walk) has not increased.

    (c) Medical improvement that is related to ability to do work. 
Medical improvement is related to an annuitant's ability to work if 
there has been a decrease in the severity (as defined in paragraph (a) 
of this section) of the impairment(s) present at the time of the most 
recent favorable medical decision and an increase in the annuitant's 
functional capacity to do basic work activities as discussed in 
paragraph (d) of this section. A determination that medical improvement 
related to an annuitant's ability to do work has occurred does not, 
necessarily, mean that such annuitant's disability will be found to have 
ended unless it is also shown that the annuitant is currently able to 
engage in substantial gainful activity as discussed in paragraph (e) of 
this section.

    Example 1:  The annuitant has a back impairment and has had a 
laminectomy to relieve the nerve root impingement and weakness in his 
left leg. At the time of the Board's prior decision, basic work 
activities were affected because he was able to stand less than 6 hours, 
and sit no more than \1/2\ hour at a time. The annuitant had a 
successful fusion operation on his back about 1 year before the Board's 
review of his entitlement. At the time of the Board's review, the 
weakness in his leg has decreased. The annuitant's functional capacity 
to perform basic work activities now is unimpaired because he now has no 
limitation on his ability to sit, walk, or stand. Medical improvement 
has occurred because there has been a decrease in the severity of his 
impairment as demonstrated by the decreased weakness in his leg. This 
medical improvement is related to his ability to work because there has 
also been an increase in his functional capacity to perform basic work 
activities (or residual functional capacity) as shown by the absence of 
limitation on his ability to sit, walk, or stand. Whether or not his 
disability is found to have ended, however, will depend on the Board's 
determination as to whether he can currently engage in substantial 
gainful activity.

    Example 2: The annuitant was injured in an automobile accident 
receiving a compound fracture to his right femur and a fractured pelvis. 
When he applied for disability annuity 10 months after the accident his 
doctor reported that neither fracture had yet achieved solid union based 
on his clinical examination. X-rays supported this finding. The 
annuitant's doctor estimated that solid union and a subsequent return to 
full weight bearing would not occur for at least 3 more months. At the 
time of the Board's review 6 months later, solid union had occurred and 
the annuitant had been returned to full weight-bearing for over a month. 
His doctor reported this and the fact that his prior fractures no longer 
placed any limitation on his ability to walk, stand, and lift, and, that 
in fact, he could return to full-time work if he so desired.
    Medical improvement has occurred because there has been a decrease 
in the severity of the annuitant's impairments as shown by x-ray and 
clinical evidence of solid union and his return to full weight-bearing. 
This medical improvement is related to his ability to work because he no 
longer meets the same listed impairment in appendix 1 of this part (see 
Sec. 220.178(c)(1)). Whether or not the annuitant's disability is found 
to have ended will depend on the Board's determination as to whether he 
can currently engage in substantial gainful activity.

    (d) Functional capacity to do basic work activities. (1) Under the 
law, disability is defined, in part, as the inability to do any regular 
employment by reason of a physical or mental impairment(s). ``Regular 
employment'' is defined in this part as ``substantial gainful 
activity.'' In determining whether the annuitant is disabled under the 
law, the Board will measure, therefore, how and to what extent the 
annuitant's impairment(s) has affected his or her ability to do work. 
The Board does this by looking at how the annuitant's functional 
capacity for doing basic work activities has been affected. Basic work 
activities means the abilities and aptitudes necessary to do most jobs. 
Included are exertional abilities such as walking, standing, pushing, 
pulling, reaching and carrying, and nonexertional abilities and 
aptitudes such as seeing, hearing, speaking, remembering, using 
judgment, dealing with changes in a work setting and dealing

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with both supervisors and fellow workers. The annuitant who has no 
impairment(s) would be able to do all basic work activities at normal 
levels; he or she would have an unlimited functional capacity to do 
basic work activities. Depending on its nature and severity, an 
impairment(s) will result in some limitation to the functional capacity 
to do one or more of these basic work activities. Diabetes, for example, 
can result in circulatory problems which could limit the length of time 
the annuitant could stand or walk and can result in damage to his or her 
eyes as well, so that the annuitant also had limited vision. What the 
annuitant can still do, despite his or her impairment(s), is called his 
or her residual functional capacity. How the residual functional 
capacity is assessed is discussed in more detail in Sec. 220.120. Unless 
an impairment is so severe that it is deemed to prevent the annuitant 
from doing substantial gainful activity (i.e., the impairment(s) meets 
or equals the severity of a listed impairment in appendix 1 of this 
part), it is this residual functional capacity that is used to determine 
whether the annuitant can still do his or her past work or, in 
conjunction with his or her age, education and work experience, do any 
other work.
    (2) A decrease in the severity of an impairment as measured by 
changes (improvement) in symptoms, signs or laboratory findings can, if 
great enough, result in an increase in the functional capacity to do 
work activities. Vascular surgery (e.g., femoropopliteal bypass) may 
sometimes reduce the severity of the circulatory complications of 
diabetes so that better circulation results and the annuitant can stand 
or walk for longer periods. When new evidence showing a change in 
medical findings establishes that both medical improvement has occurred 
and the annuitant's functional capacity to perform basic work 
activities, or residual functional capacity, has increased, the Board 
will find that medical improvement which is related to the annuitant's 
ability to do work has occurred. A residual functional capacity 
assessment is also used to determine whether an annuitant can engage in 
substantial gainful activity and, thus, whether he or she continues to 
be disabled (see paragraph (e) of this section).
    (3) Many impairment-related factors must be considered in assessing 
an annuitant's functional capacity for basic work activities. Age is one 
key factor. Medical literature shows that there is a gradual decrease in 
organ function with age; that major losses and deficits become 
irreversible over time and that maximum exercise performance diminishes 
with age. Other changes related to sustained periods of inactivity and 
the aging process include muscle atrophy, degenerative joint changes, 
decrease in range of motion, and changes in the cardiac and respiratory 
systems which limit the exertional range.
    (4) Studies have also shown that the longer the annuitant is away 
from the workplace and is inactive, the more difficult it becomes to 
return to ongoing gainful employment. In addition, a gradual change 
occurs in most jobs so that after about 15 years, it is no longer 
realistic to expect that skills and abilities acquired in these jobs 
will continue to apply to the current workplace. Thus, if the annuitant 
is age 50 or over and had been receiving a disability annuity for a 
considerable period of time, the Board will consider this factor along 
with his or her age in assessing the residual functional capacity. This 
will ensure that the disadvantages resulting from inactivity and the 
aging process during a longer period of disability will be considered. 
In some instances where available evidence does not resolve what the 
annuitant can or cannot do on a sustained basis, the Board may provide 
special work evaluations or other appropriate testing.
    (e) Ability to engage in substantial gainful activity. In most 
instances, the Board must show that the annuitant is able to engage in 
substantial gainful activity before stopping his or her annuity. When 
doing this, the Board will consider all of the annuitant's current 
impairments not just that impairment(s) present at the time of the most 
recent favorable determination. If the Board cannot determine that the 
annuitant is still disabled based on medical considerations alone (as 
discussed in Secs. 220.110 through 220.115), it will use

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the new symptoms, signs and laboratory findings to make an objective 
assessment of functional capacity to do basic work activities (or 
residual functional capacity) and will consider vocational factors. See 
Secs. 220.120 through 220.134.
    (f) Evidence and basis for the Board's decision. The Board's 
decisions under this section will be made on a neutral basis without any 
initial inference as to the presence or absence of disability being 
drawn from the fact that the annuitant had previously been determined to 
be disabled. The Board will consider all of the evidence the annuitant 
submits. An annuitant must give the Board reports from his or her 
physician, psychologist, or others who have treated or evaluated him or 
her, as well as any other evidence that will help the board determine if 
he or she is still disabled (see Sec. 220.45). The annuitant must have a 
good reason for not giving the Board this information or the Board may 
find that his or her disability has ended (see Sec. 220.178(b)(2)). If 
the Board asks the annuitant, he or she must contact his or her medical 
sources to help the Board get the medical reports. The Board will make 
every reasonable effort to help the annuitant in getting medical reports 
when he or she gives the Board permission to request them from his or 
her physician, psychologist, or other medical sources, Every reasonable 
effort means that the Board will make an initial request and, after 20 
days, one follow-up request to the annuitant's medical source to obtain 
the medical evidence necessary to make a determination before the Board 
evaluates medical evidence obtained from another source on a 
consultative basis. The medical source will have 10 days from the 
follow-up to reply (unless experience indicates that a longer period is 
advisable in a particular case). In some instances the Board may order a 
consultative examination while awaiting receipt of medical source 
evidence. Before deciding that an annuitant's disability has ended, the 
Board will develop a complete medical history covering at least the 
preceding 12 months (See Sec. 220.45(b)). A consultative examination may 
be purchased when the Board needs additional evidence to determine 
whether or not an annuitant's disability continues. As a result, the 
Board may ask the annuitant, upon the Board request and reasonable 
notice, to undergo consultative examinations and tests to help the Board 
determine whether the annuitant is still disabled (see Sec. 220.50). The 
Board will decide whether or not to purchase a consultative examination 
in accordance with the standards in Secs. 220.53 through 220.54.
    (g) Point of comparison. For purposes of determining whether medical 
improvement has occurred, the Board will compare the current medical 
severity of that impairment(s), which was present at the time of the 
most recent favorable medical decision that the annuitant was disabled 
or continued to be disabled, to the medical severity of that 
impairment(s) at that time. If medical improvement has occurred, the 
Board will compare the annuitant's current functional capacity to do 
basic work activities (i.e., his or her residual functional capacity) 
based on this previously existing impairment(s) with the annuitant's 
prior residual functional capacity in order to determine whether the 
medical improvement is related to his or her ability to do work. The 
most recent favorable medical decision is the latest decision involving 
a consideration of the medical evidence and the issue of whether the 
annuitant was disabled or continued to be disabled which became final.



Sec. 220.178  Determining medical improvement and its relationship to the annuitant's ability to do work.

    (a) General. Paragraphs (a), (b), and (c) of Sec. 220.177 discuss 
what is meant by medical improvement, medical improvement not related to 
the ability to work and medical improvement that is related to the 
ability to work. How the Board will arrive at the decision that medical 
improvement has occurred and its relationship to the ability to do work, 
is discussed in paragraphs (b) and (c) of this section.
    (b) Determining if medical improvement is related to ability to 
work. If there is a decrease in medical severity as shown by the 
symptoms, signs and laboratory findings, the Board then must determine 
if it is related to the annuitant's

[[Page 252]]

ability to do work. In Sec. 220.177(d) the relationship between medical 
severity and limitation on functional capacity to do basic work 
activities (or residual functional capacity) and how changes in medical 
severity can affect the annuitant's residual functional capacity is 
explained. In determining whether medical improvement that has occurred 
is related to the annuitant's ability to do work, the Board will assess 
the annuitant's residual functional capacity (in accordance with 
Sec. 220.177(d)) based on the current severity of the impairment(s) 
which was present at that annuitant's last favorable medical decision. 
The annuitant's new residual functional capacity will then be compared 
to the annuitant's residual functional capcity at the time of the 
Board's most recent favorable medical decision. Unless an increase in 
the current residual functional capacity is based on changes in the 
signs, symptoms, or laboratory findings, any medical improvement that 
has occurred will not be considered to be related to the annuitant's 
ability to do work.
    (c) Additional factors and considerations. The Board will also apply 
the following in its determinations of medical improvement and its 
relationship to the annuitant's ability to do work:
    (1) Previous impairment met or equaled listings. If the Board's most 
recent favorable decision was based on the fact that the annuitant's 
impairment(s) at the time met or equaled the severity contemplated by 
the Listing of Impairments in appendix 1 of this part, an assessment of 
his or her residual functional capacity would not have been made. If 
medical improvement has occurred and the severity of the prior 
impairment(s) no longer meets or equals the same listing, the Board will 
find that the medical improvement was related to the annuitant's ability 
to work. Appendix 1 of this part describes impairments which, if severe 
enough, affect the annuitant's ability to work. If the Listing level of 
severity is met or equaled, the annuitant is deemed, in the absence of 
evidence to the contrary, to be unable to engage in substantial gainful 
activity. If there has been medical improvement to the degree that the 
requirement of the listing is no longer met or equaled, then the medical 
improvement is related to the annuitant's ability to work. The Board 
must, of course, also establish that the annuitant can currenlty engage 
in gainful activity before finding that his or her disability has ended.
    (2) Prior residual functional capacity assessment made. The residual 
functional capacity assessment used in making the most recent favorable 
medical decision will be compared to the residual functional capacity 
assessment based on current evidence in order to determine if an 
annuitant's functional capacity for basic work activities has increased. 
There will be no attempt made to reassess the prior residual functional 
capacity.
    (3) Prior residual functional capacity assessment should have been 
made, but was not. If the most recent favorable medical decision should 
have contained an assessment of the annuitant's residual functional 
capacity (i.e., his or her impairment(s) did not meet or equal the level 
of severity contemplated by the Listing of Impairments in appendix 1 of 
this part) but does not, either because this assessment is missing from 
the annuitant's file or because it was not done, the Board will 
reconstruct the residual functional capacity. This reconstructed 
residual functional capacity will accurately and objectively assess the 
annuitant's functional capacity to do basic work activities. The Board 
will assign the maximum functional capacity consistent with an 
allowance.

    Example: The annuitant was previously found to be disabled on the 
basis that while his impairment did not meet or equal a listing, it did 
prevent him from doing his past or any other work. The prior adjudicator 
did not, however, include a residual functional capacity assessment in 
the rationale of that decision and a review of the prior evidence does 
not show that such an assessment was ever made. If a decrease in medical 
severity, i.e., medical improvement, has occurred, the residual 
functional capacity based on the current level of severity of the 
annuitant's impairment will have to be compared with his residual 
functional capacity based on its prior severity in order to determine if 
the medical improvement is related to his ability to do work. In order 
to make this comparison, the Board will review the prior evidence and 
make an objective assessment of the annuitant's residual functional 
capacity

[[Page 253]]

at the time of its most recent favorable medical determination, based on 
the symptoms, signs and laboratory findings as they then existed.

    (4) Impairment subject to temporary remission. In some cases the 
evidence shows that the annuitant's impairment(s) are subject to 
temporary remission. In assessing whether medical improvement has 
occurred in annuitants with this type of impairment(s), the Board will 
be careful to consider the longitudinal history of the impairment(s), 
including the occurrence of prior remission, and prospects for future 
worsenings. Improvement in such impairment(s) that is only temporary, 
i.e., less than 1 year, will not warrant a finding of medical 
improvement.
    (5) Prior file cannot be located. If the prior file cannot be 
located, the Board will first determine whether the annuitant is able to 
now engage in substantial gainful activity based on all of his or her 
current impairments. (In this way, the Board will be able to determine 
that his or her disability continues at the earliest point without 
addressing the often lengthy process of reconstructing prior evidence.) 
If the annuitant cannot engage in substantial gainful activity 
currently, his or her disability will continue unless one of the second 
group of exceptions applies (see Sec. 220.179(b)).



Sec. 220.179  Exceptions to medical improvement.

    (a) First group of exceptions to medical improvement. The law 
provides for certain limited situations when the annuitant's disability 
can be found to have ended even though medical improvement has not 
occurred, if he or she can engage in substantial gainful activity. These 
exceptions to medical improvement are intended to provide a way of 
finding that the annuitant is no longer disabled in those limited 
situations where, even though there has been no decrease in severity of 
the impairment(s), evidence shows that the annuitant should no longer be 
considered disabled or never should have been considered disabled. If 
one of these exceptions applies, the Board must also show that, taking 
all of the annuitant's current impairment(s) into account, not just 
those that existed at the time of the Board's most recent favorable 
medical decision, the annuitant is now able to engage in substantial 
gainful activity before his or her disability can be found to have 
ended. As part of the review process, the annuitant will be asked about 
any medical or vocational therapy that he or she has received or is 
receiving. Those answers and the evidence gathered as a result as well 
as all other evidence, will serve as the basis for the finding that an 
exception applies.
    (1) Substantial evidence shows that the annuitant is the beneficiary 
of advances in medical or vocational therapy or technology (related to 
his or her ability to work). Advances in medical or vocational therapy 
or technology are improvements in treatment or rehabilitative methods 
which have increased the annuitant's ability to do basic work 
activities. The Board will apply this exception when substantial 
evidence shows that the annuitant has been the beneficiary of services 
which reflect these advances and they have favorably affected the 
severity of his or her impairment(s) or ability to do basic work 
activities. This decision will be based on new medical evidence and a 
new residual functional capacity assessment. In many instances, an 
advanced medical therapy or technology will result in a decrease in 
severity as shown by symptoms, signs and laboratory findings which will 
meet the definition of medical improvement. This exception will, 
therefore, see very limited application.
    (2) Substantial evidence shows that the annuitant has undergone 
vocational therapy (related to his or her ability to work). Vocational 
therapy (related to the annuitant's ability to work) may include, but is 
not limited to, additional education, training, or work experience that 
improves his or her ability to meet the vocational requirements of more 
jobs. This decision will be based on substantial evidence which includes 
new medical evidence and a new residual functional capacity assessment. 
If, at the time of the Board's review the annuitant has not completed 
vocational therapy which could affect the continuance of his or her 
disability, the Board will review such annuitant's claim upon completion 
of the therapy.


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    Example 1:  The annuitant was found to be disabled because the 
limitations imposed on him by his impairment(s) allowed him to only do 
work that was at a sedentary level of exertion. The annuitant's prior 
work experience was work that required a medium level of exertion with 
no acquired skills that could be transferred to sedentary work. His age, 
education, and past work experience at the time did not qualify him for 
work that was below this medium level of exertion. The annuitant 
enrolled in and completed a specialized training course which qualifies 
him for a job in data processing as a computer programmer in the period 
since he was awarded a disability annuity. On review of his claim, 
current evidence shows that there is no medical improvement and that he 
can still do only