[Federal Register Volume 62, Number 246 (Tuesday, December 23, 1997)]
[Proposed Rules]
[Pages 67120-67172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32511]
[[Page 67119]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of Workers Compensation Programs
_______________________________________________________________________
20 CFR Parts 10 and 25
Claims for Compensation Under the Federal Employees' Compensation Act;
Compensation for Disability and Death of Noncitizen Federal Employees
Outside the United States; Proposed Rule
Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 /
Proposed Rules
[[Page 67120]]
DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 10 and 25
RIN Number 1215-AB07
Claims for Compensation under the Federal Employees' Compensation
Act; Compensation for Disability and Death of Noncitizen Federal
Employees Outside the United States
AGENCY: Office of Workers' Compensation Programs, Employment Standards
Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor proposes to revise the regulations
governing the administration of the Federal Employees' Compensation Act
(FECA), which provides benefits to all civilian Federal employees and
certain other groups of employees and individuals who are injured or
killed while performing their jobs. The Office of Workers' Compensation
Programs (OWCP) administers the FECA.
The existing rules have been entirely rewritten using plain English
and have also been reorganized into a more accessible format. A number
of significant changes are made in the proposed regulations, including
new sections implementing amendments to the law which provide for
suspension of benefits during incarceration and termination of benefits
for conviction of fraud against the program; changes to the
continuation of pay (COP) provisions, including reducing to 30 days the
time within which COP may be used where there is a recurrence of
disability; paying for an attendant as a medical expense instead of as
a supplemental payment to the claimant; inclusion of OWCP nurse
services in the definition of vocational rehabilitation services;
clarifying the review process by distinguishing between modification on
the Director's own motion (in which case no new evidence or argument is
needed to reopen claim) and reconsideration at the request of the
claimant (which will require the claimant to provide new evidence or
argument to reopen the claim); restricting opportunities to postpone
oral hearings; clarification of subpoena authority; streamlining the
standards for review of attorney fees; provision of more detailed
guidance in regard to claims involving the liability of a third party;
and clarification of procedures with respect to claims filed by non-
Federal law enforcement officers. Also included in the proposed
regulations is a major revision of the medical fee schedule to include,
for the first time, pharmacy and inpatient hospital bills.
DATES: Written comments must be submitted on or before February 23,
1998.
ADDRESSES: Send written comments to Thomas M. Markey, Director for
Federal Employees' Compensation, Employment Standards Administration,
U.S. Department of Labor, Room S-3229, 200 Constitution Avenue NW.,
Washington, DC 20210; Telephone (202) 219-7552.
FOR FURTHER INFORMATION CONTACT: Thomas M. Markey, Director for Federal
Employees' Compensation, Telephone (202) 219-7552.
SUPPLEMENTARY INFORMATION: The FECA provides compensation for wage
loss, medical care, and vocational rehabilitation to Federal employees
and certain other individuals who are injured in the performance of
their duties, or who develop illness as a result of factors of their
Federal employment. It also provides monetary benefits to the survivors
of employees who are killed in the performance of duty or die as the
result of factors of their Federal employment.
The program's regulations were last substantially revised in 1987.
Since then, new provisions have been added to the statute, and
experience has shown that certain parts of the regulations need
clarification or revision to improve and streamline the claims process.
In addition, there has been a significant increase in the number and
complexity of OWCP issues requiring adjudication, which has strained
the administrative resources available to fulfill OWCP's statutory
mandate to adjudicate and administer claims. In addition, several
developments have enabled OWCP to devise a fee schedule applicable to
hospital inpatient and pharmacy bills. For all of these reasons, the
rules have been comprehensively rewritten.
The proposed rules look significantly different than the existing
rules. This is both because they have been completely reorganized into
a format reflecting the organization of the claims process itself and
because they are presented in a question-and-answer format instead of
the narrative form used in the existing rules. We believe that the new
organization and style of the regulations presents the information in a
way consistent with the needs of the user, and will help the reader
more easily find information. In addition, unnecessary information has
been eliminated and material which simply repeats the language of the
statute itself has been removed from various portions of the
regulations.
The regulations have been re-numbered and substantially re-worded.
The sections have been grouped by type of claims, where appropriate, so
that the reader who wants to know about filing death claims, for
example, need only turn to one section to get essentially all the basic
information about how such claims are filed.
A description of other significant changes made by these
regulations follows. Cross references from new sections to the existing
ones are made to allow the reader to better follow the changes.
Subpart A, General Provisions
This subpart is substantially the same as current subpart A
(Secs. 10.1 through 10.23), with the addition of material describing
the penalties imposed as a result of the amendments to the FECA that
added 5 U.S.C. 8148.
Introduction
Section 10.2 has been revised to reflect two changes: employees of
the Alaska Railroad are no longer covered under the FECA; and
administration of the FECA for Panama Canal Commission employees was
returned to OWCP in 1989.
Definitions and Forms
Section 10.5 now includes definitions that used to appear in
several later subparts. Definitions of terms defined in the FECA
itself, such as injury, organ and United States Medical Officers and
Hospitals, no longer appear in the regulations, because it is felt to
be unnecessary to repeat these statutory provisions.
Section 10.5(a) revises the definition of Benefits or Compensation
to clarify that those terms include the amounts paid out of the
Employees' Compensation Fund for medical examinations conducted at the
request of OWCP as part of the claims adjudication process, consistent
with OWCP's longstanding practice.
Section 10.5(g) moves the definition for Earnings From Employment
Or Self-Employment from its existing location in Section 10.125(c) and
revises it to clarify that earnings from self-employment include a
reasonable estimate of the cost to have someone else perform the duties
of an individual who accepts no remuneration. This revision is
consistent with several decisions by the Employees' Compensation
Appeals Board (ECAB) in this area. See, e.g., Edward O. Hamilton, 39
ECAB 1131 (1988); William C. Austin, 39 ECAB 357 (1988).
[[Page 67121]]
Section 10.5(h) replaces the lengthy and cumbersome list which
constituted the old definition for Employee with a shorter list that
omits references to coverage afforded pursuant to other specific
statutes, since the material omitted merely referenced other statutory
provisions.
Section 10.5(i) simplifies and updates the definition of Employer
or Agency by broadening it to make clear that it encompasses the
various titles now used by different agencies for persons designated to
perform the employer's tasks in the FECA claims process. This
streamlining is not intended to in any way change existing practice.
The definition of Knowingly in section 10.5(n) is new. It adopts
the definition for this term, consistently used by the ECAB in numerous
forfeiture cases construing section 8106(b)(2). See, e.g., Garry Don
Young, 45 ECAB 621 (1994); Lewis George, 45 ECAB 144 (1993).
Section 10.5(x) replaces the existing discussion of Recurrence Of
Disability found in Sec. 10.121, which merely provides that a
recurrence occurs when the original injury causes the employee to stop
work again. The definition of recurrence being added to the regulations
reflects OWCP's understanding of the term recurrence as explained by
the ECAB in numerous cases which have thoroughly examined both the
medical and non-medical aspects of this issue. The new definition will
also enable OWCP to recognize the changes that have occurred in the
nature of federal employment in this era of continued government
downsizing by specifically addressing some situations that arise as
agencies close work sites. See, e.g., Terry R. Hedman, 38 ECAB 222
(1986); John W. Normand, 39 ECAB 1378 (1988); Don J. Mazurek (Docket
No. 93-2063, January 23, 1995).
The definitions of Occupational Disease or Illness, Physician and
Student have been shortened, with no intent to make a substantive
change, by deleting (or simply referring to) definitional material
which already appears in the FECA.
In Sec. 10.6, current Sec. 10.5(b) is updated to include a new
category of ``dependents'' for purposes of implementing new section
8148 of the FECA. That amendment requires a suspension of benefits when
a claimant is incarcerated for a felony, but allows instead payments of
a portion of those benefits to eligible dependents.
Rights and Penalties
Sections which merely repeat provisions of the statute (such as the
reference to the FECA as the exclusive remedy for employees and their
families) have been removed. Proposed Sec. 10.16 provides information
about various provisions of criminal law relating to the FECA claims
process. In addition to the description of the penalties, a statement
has been added explaining that enforcement of the criminal laws
applicable to FECA activities is solely within the jurisdiction of the
Department of Justice. This is intended to eliminate confusion on the
part of some individuals who ask that OWCP enforce these criminal law
provisions.
Section 10.17 implements a recent addition to the FECA, section
8148(a). Pursuant to section 8148(a), any beneficiary convicted of
defrauding the federal government in connection with a FECA claim
forfeits his or her right to further compensation ``as of the date of
such conviction.'' To implement this provision in a uniform manner
consistent with the intent of the statute, the term ``conviction'' is
interpreted in this section as occurring either on the date that a
guilty plea is made in open court or the date that a verdict of guilty
is returned after trial.
This interpretation, which is consistent with opinions issued by
the Comptroller General and instructions issued by that office, ensures
consistency among various government agencies and permits uniform
application of these procedures despite variations among jurisdictions
with respect to how the term ``conviction'' has been defined for other
purposes. In addition, choice of the date a guilty plea is made in open
court or a verdict of guilty is returned after trial facilitates
implementation of the statutory provisions because the date is easy to
ascertain following the submission of pertinent factual evidence, such
as a copy of a plea agreement or a judgment order that has been filed
in a criminal case.
Section 10.18 implements another recent addition to the FECA,
section 8148(b). Pursuant to section 8148(b), which is similar to
provisions of several state workers' compensation statutes and a
provision in the Social Security Act, any beneficiary incarcerated for
either a state or federal felony conviction forfeits his or her right
to compensation during the period of such incarceration. However, this
section also provides the OWCP with the discretionary authority to
allocate ``a percentage of the benefits that would have been payable''
to an incarcerated beneficiary among his or her dependents using the
percentages stated in section 8133(a)(1) through (5).
In exercise of this discretion, OWCP has selected the gross current
entitlement of an incarcerated beneficiary as a ``percentage'' of such
beneficiary's ``monthly pay'' under section 8101(4), and the proposed
regulation provides that the resulting amount will be divided, using
the percentages of section 8133(a)(1) through (5), among his or her
dependents during the period of any such incarceration.
Subpart B, Filing Notices and Claims; Submitting Evidence
This subpart contains most of the information in current
Secs. 10.100 through 10.122, 10.130, and 10.140. The material in
current Sec. 10.102(e), which addresses the employer's authority to
provide copies of forms and other records pertaining to a claim, is now
addressed generally in subpart A, Sec. 10.12. Current Sec. 10.104,
regarding physicians' reports, has been moved to subpart D (Medical and
Related Benefits). Current Sec. 10.109(a) (concerning the payment of
the balance of schedule awards) has been moved to subpart E
(Compensation and Related Benefits).
The discussion of development of claims by OWCP found in current
Sec. 10.110(b) has been omitted from the proposed regulations. This
discussion has proven to be misleading, and was mistakenly assumed to
be a commitment by OWCP to undertake development, despite the fact that
it only describes what OWCP may, on an ad hoc basis, do even though the
burden of proof to establish the elements of the claim is on the
claimant at all times. The statements in current Sec. 10.120 and
Sec. 10.121(d) requiring the employer to report termination of
disability on Form CA-3 have been removed, as this procedure is no
longer required. Current Sec. 10.150, which describes OWCP's function
within the sphere of workers' compensation law generally, has been
entirely removed as unnecessary.
Notices and Claims for Injury, Disease, and Death--Employee or
Survivor's Actions
In Sec. 10.100 and 10.102, which discuss notices of injury and
occupational disease, the statements that the employer (or another
person) may file a notice of injury on the employee's behalf are new,
although the practice it describes is a longstanding one. This
provision is being added to the regulations to encourage prompt filing
of claims. OWCP cannot provide case management services, which assist
in a rapid return to work in the crucial early days of disability,
without prompt notice. An informational statement that a claimant may
withdraw a claim before
[[Page 67122]]
it has been adjudicated has also been added to these sections as well
as to Sec. 10.106.
Section 10.101 highlights the need for the employee to file a wage
loss claim (form CA-7 or CA-8) in order to receive wage-loss benefits
(compensation); this is in addition to the initial notice of injury
(form CA-1 or CA-2) which must be filed for every injury, whether or
not the injury results in lost wages. The need to file a separate claim
for wage loss has in the past sometimes been a point of confusion among
claimants, who do not realize that even though they filed the form
notifying OWCP of an injury, OWCP has no way of knowing that the person
has stopped work and lost wages unless the CA-7 or CA-8 claims for wage
loss are also filed. In addition, the 10-day time frame within which
the employee must file the wage-loss claim has been changed to 14 days
to conform to the two-week pay cycle observed by most federal agencies
and by OWCP. The longstanding practice that an employee may file a
claim for permanent impairment (that is, for a schedule award) by
letter if Form CA-7 has already been filed is specified in Sec. 10.104.
Section 10.105 clarifies the circumstances under which a notice of
recurrence (Form CA-2a) is required, rather than a new notice of injury
(Form CA-1 or CA-2). The statement in (a) concerning the need to file a
new notice of injury or episode of occupational disease is being added
as a clarification that reflects current OWCP practice.
The statement in Sec. 10.106 that the employer may file the claim
on the survivor's behalf is new. It is added to encourage prompt filing
of claims. The regulations also explain that the claim may be withdrawn
before adjudication in order to conserve resources.
Notices and Claims for Injury, Disease, and Death--Employer's Actions
Proposed Sec. 10.110, which discusses the employer's
responsibilities when a notice of traumatic injury or occupational
disease has been received, shortens the time frame for submission of
notices of injury and occupational disease from 10 to five work days,
and the regulations now make clear that the employer should not wait
for any supporting evidence before sending the form to OWCP. These
changes reflect OWCP's increasing emphasis on early receipt of notices
of injury and claims for compensation, which enables rapid initiation
of adjudication and case management procedures, as well as payment of
benefits, and an earlier return to work.
Proposed Sec. 10.111 discusses the employer's responsibilities when
a claim for compensation due to disability or permanent impairment has
been received. It also changes the time frames for submittal of a claim
for initial disability when the employee is receiving continuation of
pay. Similarly, a statement emphasizing that the employer should
provide the employee with a Form CA-8 to claim continuing disability
has been added to Sec. 10.112. Both changes represent long-standing
practice on the part of OWCP and most federal employers.
The statement that the employer may not charge for assisting
survivors in filing claims, which is found in current Sec. 10.108, has
been removed as unnecessary from Sec. 10.113, which discusses the
employer's responsibilities when an employee dies from a work-related
injury or disease.
Evidence and Burden of Proof
Section 10.115 describes, in a more comprehensive and specific
manner than the existing regulations, the five basic requirements which
have long been required of a claimant. It supplants the description in
the existing Sec. 10.110(a), which is more procedural and technical,
and which contains information (such as what medical evidence is
required) that is already in development letters and occupational
disease checklists provided directly to the claimant. The need to
submit supporting medical evidence when wage loss benefits are claimed
is emphasized, as this requirement is not always clear to employees.
Section 10.116 includes a reference to OWCP's use of checklists to
assist the claimant and employer in determining what information needs
to be submitted for certain occupational disease cases. While these
checklists have been in use for many years, and provide specific
guidance on what information is required for different types of claims,
they have not previously been mentioned in the regulations.
Decisions on Entitlement to Benefits
New Sec. 10.125 revises the language in existing Sec. 10.130 to
include, in the list of authorities used to adjudicate claims,
decisions of the Employees' Compensation Appeals Board interpreting the
FECA itself. This statement is added to provide claimants and employers
with a general idea of the precedents used in making determinations.
Sections 10.160-10.166 of the existing regulations authorize OWCP
to appoint a representative and to supervise the management of the
claimant's funds by the representative payee. Section 10.424 of the new
regulations regarding representative payees provides that a
representative payee will be appointed only in situations in which no
court or administrative body authorized to do so has appointed a
guardian or other party to manage the financial affairs of the
claimant, since such an appointment constitutes sufficient
authorization for payment of FECA benefits by OWCP to the party so
appointed. Furthermore, OWCP no longer will attempt to supervise a
representative payee's activities, but will instead rely upon
appointment of a guardian under applicable state law and supervision in
accordance with those procedures as necessary.
Subpart C, Continuation of Pay
This subpart covers the same material as current subpart C
(Secs. 10.200 through 10.209). The general rules found in current
Sec. 10.201 have been rearranged and placed in different sections. The
criteria for eligibility in current Sec. 10.201(a) are now found in
Sec. 10.205. Current Sec. 10.201(b) is now found at Sec. 10.215;
current Sec. 10.201(d) is now found at Sec. 10.200; and current
Secs. 10.201(e) and (f) are now found at Sec. 10.223.
Eligibility for COP
Sections 10.205 (d) and 10.207 address the time frames applicable
for paying continuation of pay (COP) when there is a recurrence of
injury. Under the current rule, COP is payable only when the disability
begins within 90 days of the date of injury (see current Sec. 10.201).
Similarly, when an injured employee returns to work but stops again,
any remaining COP is payable for the additional time lost (see current
Sec. 10.208(b)(3)). The proposed rules shorten the 90-day period to a
30-day period in both situations.
The 90-day period presently set forth in Sec. 10.202(a) and (b) was
initially adopted to ensure that injured workers (who filed claims for
COP within 30 days) would receive the full 45 days of COP, while at the
same time affording employers and OWCP sufficient time to develop and
adjudicate claims. Such a grace period is no longer necessary since the
employing agencies are referring Form CA-7s and CA-8s (claims for
compensation) to OWCP in a timely manner and OWCP is adjudicating about
93 percent of these claims and, where appropriate, authorizing the
payment of claims for disability compensation (CA-7s and CA-8s) within
14 days of receipt.
OWCP has focused on minimizing or eliminating lost work time
entirely,
[[Page 67123]]
which requires early intervention in the case. When the employer pays
COP, OWCP may not necessarily even know about lost work time. The
artificial extension of the COP period under the 90-day rules makes it
difficult to intervene in cases where lost time is continuing at the
point when early intervention is crucial. It is no longer necessary to
forego the opportunity for this early intervention to ensure that
income is not disrupted. Indeed, since COP was first introduced,
payment performance has improved measurably, and the time frames were
reduced in 1987 from six months to the current 90 days. OWCP's early
intervention efforts now support an additional reduction of the period
to 30 days, which is the period chosen by Congress as the time frame
within which the initial claim has to be filed.
Calculation of COP
Proposed Sec. 10.217 reworks material found in current
Sec. 10.201(b), which contains a lengthy discussion of when COP is
payable. Among other things, the discussion addresses situations where
an employee continues to work in a different position because he or she
is unable to work in the job held on the date of injury. The existing
rule has been re-written to remove excess verbiage and to make clear
that COP is chargeable where the employee who continues to work, but in
a different job, would otherwise incur a reduction in pay because of
the injury, but for COP. There is no intention to change the substance
of the current rule. Since the methods of computing pay differ among
agencies, it is difficult to capture all the variables, so we invite
comments particularly from agencies on whose practices these new rules
could inadvertently have an unintended adverse effect.
Controversion and Termination of COP
Section 10.222(b) allows an employer to terminate COP when a
preliminary notice of a disciplinary action issued before the injury
becomes final or otherwise effective during the COP period. Current
Sec. 10.201 states that the final written notice of termination of
employment for cause must have been issued before the date of injury.
The proposed change corrects an overly rigid rule and better reflects
the disciplinary process itself. It simply ensures that the employee
and the employer are put in the same position as that which would have
existed but for the injury; the salary would not have continued because
of the disciplinary action and therefore COP should not be paid.
Subpart D, Medical and Related Benefits
This subpart contains most of the information found in current
subpart E (Secs. 10.401 through 10.413), except that some of the
material about medical reports and payments (Secs. 10.410 through
10.413) has been moved to new subpart I. The definitions contained in
current Sec. 10.400 have been shortened and moved to subpart A. This
subpart also addresses the subjects of current Secs. 10.104(a) and
10.305. Current Sec. 10.401(d), which addresses the status of federal
health units, has been removed as superfluous. Current Sec. 10.406,
which concerns dental benefits, has been removed entirely as dental
care is just one of many specialized forms of treatment authorized
under the FECA, and it presents no special issues which need to be
addressed.
Emergency Medical Care
In Sec. 10.300, the statement that the employer need not issue a
Form CA-16 more than one week after the occurrence of the claimed
injury has been added. This statement reflects long-standing practice,
consistent with a purpose behind the issuance of this form, which is
designed to ensure that necessary immediate medical care is not
hindered through uncertainty by the provider of who is responsible for
payment. Section 10.301 addresses often-asked questions and reflects
long-standing policy, by making clear that the physician designated on
the CA-16 may refer a claimant for additional treatment and OWCP will
pay the appropriate associated costs.
Section 10.303 is new and is intended to provide uniform guidance
to employers who have questions about whether it is proper to use a
Form CA-16 to authorize medical testing at OWCP expense when their
employees experience an exposure to a workplace hazard. It has been a
matter of longstanding practice for OWCP to discourage the use of Form
CA-16 in this kind of situation and to remind employers that they may
be under an obligation independent of the FECA to provide their
employees with medical testing and/or other services. This regulation
reflects this practice, as well as OWCP's policy regarding payment for
preventive treatment.
Medical Treatment and Related Issues
In Sec. 10.310, the references to cost-effectiveness with respect
to appliances and supplies and to generic equivalents of prescribed
medications are new. They reflect the need for OWCP to control costs
wherever possible in the current medical environment. OWCP will not
approve an elaborate appliance or service where a more basic one is
suitable, and full reimbursement for the appliance or service may not
be made without prior approval by OWCP.
OWCP receives many questions from employees and chiropractors
concerning the parameters of chiropractic care, and Sec. 10.311
provides more specific guidance. Two changes to current practice are
made for administrative convenience: the definition of ``subluxation''
which appears in current Sec. 10.400(e) has been moved to new
Sec. 10.5(aa), and a statement that OWCP will not necessarily require
the x-ray or a report of the x-ray before adjudication has been added.
Section 10.312, which concerns the services of clinical
psychologists, is also new. Treatment of FECA claimants by clinical
psychologists has become much more common. Cases where a claimant
exhibits or alleges both physiological and psychological conditions
have presented problems concerning the proper scope of practice and the
needs of OWCP for comprehensive medical reports addressing both
conditions. Section 10.312 specifies that a clinical psychologist may
treat a FECA claimant as a physician within the scope of practice
allowed by applicable state law.
Section 10.313 has been added to address frequently asked questions
concerning preventive measures. It reflects OWCP policy as stated in
its internal procedures. What distinguishes situations where preventive
treatment may be authorized from those where it may not be authorized
is the presence of a verifiable work-related injury. Without such an
injury, preventive treatment cannot be authorized.
Attendants
Section 10.314, which concerns the services of attendants,
represents a significant departure from current practice. At present,
an allowance may be paid directly to a claimant for the services of an
attendant (limited by statute to a maximum of $1,500 per month).
Because the payment is made directly to the claimant, OWCP has no
opportunity to properly account for the expenditures, nor to monitor
the quality of the services provided.
The payment is a tax-free augmentation of compensation, and as the
proposed rule makes clear, the Director has determined that requests
for this augmentation will no longer be considered. Individuals who
have been awarded an attendant allowance before the effective date of
the final rule, however, would continue to receive it as
[[Page 67124]]
long as the service is otherwise necessary. Although the augmentation
payment will no longer be considered, and no new awards made, any
necessary services will still be payable (up to $1500 per month) but by
direct payments to the provider, as is generally the case for all other
services.
There are several reasons for this change. Foremost among these is
that it offers OWCP greater fiscal control and quality review, while
continuing to ensure that any necessary personal care services will
continue to be available to the claimant. First, augmentation itself is
paid very rarely. The attendant services for which the supplemental
income provided for under 5 U.S.C. 8111(a) is intended, is not often
necessary without the concurrent need for medical services. Under these
circumstances, the trained medical personnel necessary to perform the
medical functions also take care of the personal care needs, and both
are, and can continue to be paid for as a medical service.
Second, even when only personal care services are necessary, OWCP
may pay for them directly under 5 U.S.C. 8103. The administrative
resources expended in considering applications for this augmentation of
compensation under section 8111(a) are excessive, and most are denied
because there is no showing that the services are necessary. It is
expected that fewer requests for these services will be received when
the payments are made directly to the provider like almost all other
services. Where the claimant can show that the services are necessary
(by providing sufficient medical documentation), however, they will
still be provided for.
Another reason for this change is that by paying the providers of
such service, OWCP will gain both increased financial accountability
and better quality control than now exists. Currently, the allowance is
paid directly to the claimant resulting in OWCP having no effective
administrative control; we are unable to determine whether the provider
is charging too much for the services, for example, or even in some
cases whether the allowance is actually being spent for the services.
By paying for any necessary services directly, under section 8103,
instead of providing an allowance to the claimant, under section
8111(a), these costs will be subject to the same administrative
controls to which most other bills for services and supplies are
subject. Bills will be submitted to OWCP directly by the provider; they
will be subject through the OWCP fee schedule to a maximum monthly
charge of $1,500; bills for services will be scrutinized to ensure the
charges are correct; it will be OWCP, not the claimant, who will be
responsible for resolving any problems with the payments; and a record
of payments to the provider will be reported to the Internal Revenue
Service on form 1099 at the end of each year.
In addition to financial accountability, the quality of services
can better be monitored. Providing supplemental compensation to the
injured employee under section 8111 has in many instances encouraged
family members to take on the personal care services, even though they
may not be trained or well-suited to this task. Paying the provider
directly will give OWCP an added degree of review to ensure that the
necessary services are being provided by a home health aide, licensed
practical nurse or similarly trained individual better able to provide
the care needed. Where a family member can show he or she has the
appropriate qualifications and training, there will be nothing to
prevent them from providing the service and receiving payment.
Section 10.316, which concerns an employee's request to change his
or her primary treating physician, clarifies that an employee need not
consult OWCP for approval when the physician initially selected refers
the employee to a specialist appropriate to the nature of the injury.
Examples of frequently-approved requests for a change of physician are
also provided to illustrate the decision-making process.
Directed Medical Examinations
Sections 10.320 and 10.321 concern second opinion and referee
examinations. A statement has been added to make clear that the
claimant is not entitled to have anyone attend such examinations
(except for a physician of his or her choice, at a second opinion
examination) unless OWCP finds that exceptional circumstances, such as
the need for having an interpreter for a hearing-impaired claimant,
exist. This statement was added to address situations where
representatives and other parties wished to sit in on examinations,
even though this action can be disruptive. The statement that a case
file may be sent for second opinion or referee review where an actual
examination is not needed, or where the employee is deceased, reflects
long-standing practice and is consistent with ECAB precedent on this
issue.
In Sec. 10.323, which addresses failure to report for or
obstruction of a second opinion or referee examination, a sentence has
been added providing that actions of an employee's representative will
be considered the actions of the employee for the purposes of this
section. This statement was added to address situations where
representatives prevent or disrupt examinations, thereby hindering OWCP
from obtaining information needed to adjudicate and manage claims and
is consistent with ECAB precedent on this issue.
Medical Reports
In Sec. 10.330, the list of contents for medical reports has been
expanded to include the extent of disability and prognosis for
recovery, as these items are especially useful in managing disability
cases. Inclusion of these items reflects OWCP practice, and should help
medical providers and employees provide OWCP the information it
requires to reach a decision in the case.
To reduce confusion about submission of medical reports, the
statement that use of form reports is not required has been added to
Sec. 10.331. Also, this section makes clear that reports must have
signatures, although recognizing that many medical providers use
signature stamps in lieu of actual signatures. OWCP reserves the right
to request an original signature on any medical report. The use of Form
CA-17 to obtain interim medical reports is expressly confined to
employees with disabling traumatic injuries, as this form is not
properly used with occupational disease cases.
Subpart E, Compensation and Related Benefits
This subpart contains most of the information found in current
subpart D (Secs. 10.300 through 10.324), and it addresses the subjects
of current Secs. 10.109, 10.126 through 10.128, and Secs. 10.160
through 10.166. The very detailed guidance currently given with respect
to the appointment and responsibilities of representative payees has
been condensed into one paragraph, new Sec. 10.424, as most of the
current material is procedural rather than regulatory in nature.
No counterpart to current Sec. 10.310, which provided for buy-back
of annual or sick leave, is included in the new regulations. This
process is not authorized or required by the FECA, nor is it controlled
by OWCP. It is controlled by each employing agency, in accordance with
its general rules regarding leave repurchase. The only relationship
between those rules and FECA is the general prohibition against paying
wage-loss compensation benefits for any specific period where leave has
been used. OWCP needs to know, therefore, whether leave has been taken
in order to determine whether
[[Page 67125]]
compensation is payable for the same period. By including a reference
in the regulations to the repurchase of leave, however, OWCP has
inadvertently given the impression that OWCP controls or supervises
leave buy-back for injured workers, and disputes concerning leave buy-
back have often been incorrectly submitted to OWCP for resolution. To
avoid this confusion, the reference to leave buy-back has been removed.
Individuals who wish to repurchase leave should consult with their
employing agency. Compensation will not be paid where leave has been
used. Once restoration of leave has been authorized, however, OWCP will
entertain a claim for benefits for that period of time.
Compensation for Disability and Impairment; Compensation for Death
In Sec. 10.400, which defines total disability, a statement
explicitly recognizing OWCP's view that most employees will eventually
return to work has been added. This statement represents long-standing
policy as reflected in OWCP's case management procedures.
In Sec. 10.404, which concerns payment of compensation for schedule
impairment, a statement that OWCP uses the American Medical
Association's Guides to the Evaluation of Permanent Impairment as its
frame of reference for calculating such awards has been added. OWCP has
used this publication in calculating schedule awards for many years,
and the ECAB has approved its use. Since the publication is
periodically updated, OWCP generally uses the newest edition in effect
at the time of the decision in calculating loss of use.
OWCP has received a number of petitions over the years to add
various internal organs to the list of schedule members. We have
considered each organ suggested and, after much deliberation, decided
against any additions. This decision is consistent with most state
workers' compensation systems, which generally do not provide schedule
awards for internal organs.
In Sec. 10.406 and Sec. 10.411, which concern maximum and minimum
rates of compensation, the word ``basic'' has been prefixed to
``monthly pay'' to indicate that locality adjustments are not included
in determinations of maximum and minimum rates of compensation. Also,
statements have been added to recognize that compensation paid due to
an assault which occurred during an attempted or actual assassination
of a federal official in the performance of duty is exempted from the
maximum rates.
In Sec. 10.413, the provisions of current Sec. 10.109 have been
shortened so as not to repeat those appearing in the FECA itself.
In Sec. 10.417, the second and third paragraphs provide that OWCP
may, at least twice each year, request reports to verify student status
or the inability of a child over 18 years of age to support himself or
herself. This reporting schedule is consistent with most school
enrollment schedules, and helps avoid situations where overpayments
occur, by reminding recipients that individuals over the age of 18 who
are not enrolled in school for any particular semester are not eligible
for survivor benefits.
Adjustments to Compensation
Section 10.421(c) is new and reflects long-standing practice
regarding the concurrent receipt of compensation from OWCP and
severance or separation pay from the employer. With the increasing use
of such benefits as the government downsizes, the frequency with which
this is an issue has increased, and so a provision addressing this
issue was included in the regulation. This provision is consistent with
ECAB precedent on this issue.
Section 10.421(d) is also new and implements the changes made to
the FECA when the Federal Employees' Retirement System (FERS) was
instituted. Federal employees whose retirement benefits are provided by
the FERS receive benefits under the Social Security (SSA) retirement
system as part of their package of retirement benefits. Federal
employees eligible to receive retirement benefits under the Civil
Service Retirement Act (CSRA) must elect between FECA benefits and CSRS
retirement benefits and cannot receive both at the same time. With the
enactment of the FERS, Congress amended the dual benefit provisions of
the FECA (section 8116(d)). A FECA beneficiary may receive FECA
benefits and SSA benefits, except that OWCP is required to reduce FECA
benefits by the amount of any SSA retirement benefits attributable to
the individual's Federal employment.
In Sec. 10.423, which concerns assignment of compensation payments
to creditors, a statement concerning garnishment of benefits for
alimony and child support has been added. The language reflects changes
to various federal laws, making clear that FECA as well as other
Federal benefits may be attached to fulfill alimony and child support
obligations.
Overpayments
The regulations concerning overpayments have been extensively re-
written to highlight and clarify a FECA beneficiary's obligation to be
aware of the period for which benefits are paid, and the manner in
which overpayments are declared, contested, and collected.
The language in Sec. 10.430 has been added to describe how OWCP
notifies a recipient of compensation that a payment has been made,
whether by paper check or electronically. This language was added to
clarify that a recipient is required to be aware of the time period for
which each payment of compensation for wage loss or schedule award is
received and to advise OWCP of any discrepancies noted. Absent
affirmative evidence to the contrary, the beneficiary will be presumed
to have received the notice of payment, whether mailed or transmitted
electronically.
Sections 10.436 and 10.437 discuss the two circumstances under
which an overpayment can be waived pursuant to section 8129(b). Section
10.436 discusses the criteria to be used in determining whether
recovery would ``defeat the purpose'' of the FECA. Section 10.437
discusses the criteria to be used in determining whether recovery would
``be against equity and good conscience.'' Waiver under Sec. 10.436
because recovery would defeat the purposes of FECA is available only to
currently or formerly entitled beneficiaries, which continues the
application of that provision in the existing regulations. In
Sec. 10.437, the manner in which OWCP applies the ``against equity and
good conscience'' test for waiver of an overpayment is revised to
provide that this particular test applies to all individuals who are
``without fault'' and have received compensation because of an error of
fact or law, regardless of whether or not they are present or former
beneficiaries under the Act. This change restores the statutory
distinction between the application of the two tests for waiver
contained in section 8129(b), which was unintentionally removed as a
result of the 1987 revision of the regulations.
In new section 10.441, language has been added to clarify that an
overpayment is a debt that is subject to the Debt Collection Act of
1982 and that if such a debt is not repaid OWCP will attempt to recover
the debt by any available means including offset of salary, annuity
benefits or referral for collection to a collection agency or to the
Department of Justice.
Subpart F, Continuing Entitlement to Benefits
This subpart contains most of the information found in current
Secs. 10.123 through 10.128. It also includes some
[[Page 67126]]
material from current Secs. 10.107 and 10.110.
Claims for Continuing Disability
The regulation concerning continuing receipt of compensation
benefits, new Sec. 10.500, has been written to include a specific
statement that OWCP's goal is to return each disabled employee to work
as soon as medically able. The definition of ``suitable work'' has also
been revised to clarify the criteria by which it is determined that
work is ``suitable''. These changes were made because these concepts
are important to the program and important for both employees and
employers to understand.
The language in Sec. 10.500(a) has been added to inform claimants,
employing agencies and others of OWCP's long-standing practice of
requiring claimants to periodically submit medical evidence in support
of continuing disability. It also includes a description, based on a
consistent line of ECAB precedent, of the type of medical evidence
necessary to support a claim for continuing compensation.
The language in new Sec. 10.500(b) has been added to clarify that
OWCP can require non-invasive testing and functional capacity
evaluations and that failure to undergo such testing may result in
suspension of benefits.
The discussion of weighing medical evidence in Sec. 10.500(c) has
been added to describe OWCP's long-standing method of evaluating
medical evidence. It explains that the conclusions reached in medical
reports are not necessarily accepted at face value. Instead, OWCP
considers the entire report and determines the weight to be accorded it
based on a number of factors, including the extent to which the report
shows a familiarity with the history of the case, whether it contains
objective findings (as opposed, for example, to unsubstantiated
complaints), and the strength of the reasoning supporting any opinion
rendered.
Return to Work--Employer's Responsibilities
The discussion of an employer's responsibilities to return an
employee to work in Sec. 10.505 has been revised to specifically
reference the provisions of section 8151, which grants reinstatement
rights to injured employees and requires employers to take steps to
reemploy them. Language has also been added to inform employees,
employers and others that the Office of Personnel Management (not OWCP)
administers this provision. In the past, employees and former employees
have sought OWCP intervention in disputes concerning reemployment
rights based upon the mistaken belief that OWCP had jurisdiction over
such matters and authority over agency decisions concerning employment
decisions. This provision of the regulations is being added to correct
that misunderstanding of OWCP's role in regard to reemployment.
Section 10.506 includes a new provision allowing employers to
contact employees at reasonable intervals to request periodic medical
reports addressing their ability to return to work. This statement is
consistent with OWCP's case management procedures, which are designed
to include the employing agency in the effort to return the injured
employee to work. The provision is not intended to allow employers to
obtain medical reports for any reason other than evaluation of an
employee's ability to return to work.
The discussion of payment of relocation expenses, in Sec. 10.508,
has been revised to include a provision that OWCP may pay relocation
expenses when the new employer is other than a federal employer, a
situation which the current Sec. 10.123(f) does not address. Requests
for reimbursement in this context do not arise frequently, and the
expenses claimed are usually modest.
Section 10.509 adds a discussion, not contained in the current
regulations, of OWCP's practice with respect to injured employees who
have returned to light-duty work and are separated when their employers
eliminate their light-duty positions in a subsequent reduction-in-force
(RIF) as part of a general agency downsizing at a particular work site.
Consistent with established ECAB precedent, OWCP does not consider such
a termination of employment to be a recurrence of employment-related
disability, since it is not caused by a change in the nature or extent
of the employee's accepted medical condition or a change in the duties
of the light-duty position, which clearly would have continued to be
available in the absence of the RIF.
In such cases, OWCP will determine the employee's wage-earning
capacity based on his or her actual earnings in the former light-duty
position, if such a determination is appropriate and has not already
been made. Unless the employee has been working in a position for which
the employer has prepared a written position description, OWCP will
assume that the employee was engaged in non-competitive employment that
does not represent the employee's wage-earning capacity. This
requirement is consistent with ECAB precedent concerning wage-earning
capacity determinations, which provides that OWCP may not use an
unclassified or ``odd-lot'' position that has been specifically
tailored to fit the work limitations of a particular injured employee
to determine the wage-earning capacity of that employee.
Return to Work--Employee's Responsibilities
Section 10.516 incorporates into the regulations the procedures
followed when OWCP rejects an employee's reasons for refusing a
position that OWCP has found suitable. OWCP adopted these procedures
several years ago in accordance with the decision of the ECAB in Maggie
Moore, 42 ECAB 484 (1991). The proposed regulation provides for a 15-
day period during which an employee may accept the offered job without
penalty after OWCP has determined that his or her proffered reasons for
declining to accept an offer of suitable work are not reasonable.
Section 10.518 adds a discussion of ``vocational rehabilitation
services'' to the regulations. This definition is intended to clarify
that such services include the services of registered nurses working at
the direction of OWCP to assist employees in returning to work. These
nursing services, which generally take place in the weeks immediately
following the injury, are an integral part of OWCP's efforts to return
injured employees to work. Vocational rehabilitation includes a variety
of services, all of which are designed to assist an injured employee's
return to work. Including this definition of vocational rehabilitation
services clarifies that OWCP considers nursing services to be such
services and that the benefits and sanctions set forth in section 8104
and section 8113(b), which apply to other vocational services, will
also apply to nurse services. This discussion also states that OWCP
considers vocational evaluation, testing, training and placement
services, and functional capacity evaluations to be vocational
rehabilitation services.
Section 10.520 incorporates into the regulations an explanation of
how OWCP determines an employee's wage-earning capacity after
completion of a vocational rehabilitation program. This discussion is
intended to inform employees and others of OWCP's long-standing
practice in this area and is consistent with ECAB precedent concerning
determination of wage-earning capacity.
Reports of Earnings From Employment and Self-Employment
The FECA authorizes OWCP to require FECA claimants to report
[[Page 67127]]
earnings from employment or self-employment. The ``earnings'' from
employment or self-employment that must be reported by any employee who
is receiving compensation for either partial or total disability are
defined in Sec. 10.5(g). The language in Sec. 10.525(b) has been added
to clarify the distinction between the effects of having earnings,
which may or may not result in a reduction of FECA compensation, and
the effects of failing to report earnings, which can result in the
forfeiture of all compensation paid or found to be payable during the
reporting period.
The discussion of volunteer activity in Sec. 10.526 has been added
to clarify that employees receiving compensation for partial or total
disability are required to report volunteer activity as part of their
report of earnings from employment and self-employment. Volunteer
service can be a valuable indicator of the kind of gainful employment
that the employee may be able to undertake, and thus OWCP may be able
to use this information to help determine the employee's wage-earning
capacity.
The language in Sec. 10.527 has been added to the regulations to
inform employees and others of the fact that OWCP attempts to verify
reports of earnings in a number of ways, including computer matches
with the Office of Personnel Management and state workers' compensation
agencies.
Reduction and Termination of Compensation
Sections 10.540 and 10.541 are new and reflect OWCP's long-standing
practices with respect to how and under what circumstances it will
provide beneficiaries with written notice that it intends to either
reduce or terminate their compensation in the next 30 days, as well as
the administrative steps it will take after it provides such notice.
These provisions are to inform employees and others when and how OWCP
notifies beneficiaries of its intention to terminate compensation and
to clarify that, in situations when the beneficiary has no reasonable
expectation that compensation will continue, OWCP will not provide this
pre-termination notice.
Subpart G, Disallowances and Appeals
This subpart contains most of the information found in current
Secs. 10.130 through 10.145, except for the material found in current
Sec. 10.142, which is moved to subpart H.
Reconsiderations and Reviews by the Director
Review of a decision on application of the claimant is addressed in
current Sec. 10.138(b), and review of a decision on the Director's own
motion is addressed in current Sec. 10.138(a). Sections 10.605 through
10.610 revise and expand the description of reviewing a decision on
application of the claimant and on the Director's own motion in order
to clarify the difference between these two separate procedures. These
provisions state that the Director's authority is not subject to a
request or application. Further, these provisions adopt OWCP's long-
standing position that the Director does not need new evidence or
argument to review a decision and that the decision by the Director to
review a decision is not a proper subject for review or appeal.
In many cases, claimants appear not to have understood the
distinction between the two distinct review procedures authorized by
section 8128(a). Some individuals, who remain dissatisfied with an OWCP
decision after exhausting all their review and appeal rights, have
asked the Director to review the decision with which they disagree
pursuant to the Secretary's authority under section 8128(a), delegated
to the Director, to review a decision on his or her own motion. The
distinction between the Director's authority to review a decision on
his or her own motion and a claimant's application for review is not
new in practice. Claimants have never been entitled to ``apply'' for
review outside the process described as a ``reconsideration'' in the
review and appeal options accompanying all adverse decisions. When a
request to the Director to review a decision on his or her own motion
is received, it has been OWCP's long-standing practice to treat it as a
reconsideration request rather than an additional avenue for claimants
to seek review.
To alleviate the confusion that has been demonstrated in regard to
this issue, Sec. 10.610 specifically states that OWCP will not consider
a request for review on the Director's own motion. The statutory
provision authorizing a claimant to request review of a decision ``upon
application'' is fulfilled by the application for reconsideration.
Since no other mechanism for a claimant dissatisfied with a decision to
obtain a review ``upon application'' is available, OWCP will continue
to treat requests that the Director review a decision on his or her own
motion as requests for reconsideration.
A number of ECAB cases have addressed the question of whether the
Director is required to have new evidence or argument to review a
decision under section 8128(a). In Eli Jacobs, 32 ECAB 1147 (1981), the
ECAB held that the Director may reopen a claim at any time without
specifying what standard, if any, applied to that decision. In a later
decision, Daniel E. Phillips, 40 ECAB 1111, petition for
reconsideration denied, 41 ECAB 201 (1989), however, over the dissent
of one member of the panel, the ECAB held that to reopen and rescind
acceptance of a claim, the Director must establish that the original
decision was erroneous through the use of ``new or different
evidence.'' The ECAB reached this conclusion without specifying any
statutory or regulatory basis for this limitation. Its only rationale
was its opinion that reopening a decision should not become a
surreptitious route for OWCP to readjudicate a claim. In later cases
that formulation was expanded to include allowing reopening and
rescission of a prior decision through new or different evidence, legal
argument or rationale. See, e.g., Beth A. Quimby, 41 ECAB 683 (1990);
Billie C. Rae, 43 ECAB 192 (1991); Shelby J. Rycroft, 44 ECAB 795
(1993); Laura H. Hoexter (Nicholas P. Hoexter), 44 ECAB 987 (1993).
Section 10.610 adopts the long-standing position of the Director
that the plain language of section 8128(a) authorizes the Director,
without pre-condition, to review a decision ``at any time.'' The
existing regulations contain a provision, carried over in Sec. 10.608,
limiting the right of a claimant to obtain a merit review and a new
decision from OWCP to those situations in which the claimant meets one
of the requirements set out in Sec. 10.138(b). Without this limitation,
the effective administration of the program could be undermined by
taxing the limited resources available to administer the program
through frivolous requests for review. Allowing the claimant to reopen
the claim just to have the same evidence reviewed again would both
waste the claims staff time and slow down the appellate process.
In view of the fact that the statute imposes no limitation upon the
right of the Director to review a decision ``at any time,'' Sec. 10.610
grants the Director an unconditional right to review any decision
without requiring new evidence or argument. Effective administration of
the program requires that the Director be able to review decisions at
any time without having to supply new evidence or argument.
This does not mean, however, that the claimant has no recourse when
the
[[Page 67128]]
Director reviews a decision and issues a new decision with which he or
she disagrees. Any adverse decision is subject to the full range of
review and appeal options which protects the claimant from arbitrary
action. Congress clearly did not contemplate restricting the Director's
ability to reopen a claim when it gave the Director authority to review
a decision ``at any time''.
Consistent with this broad authority, Sec. 10.610 provides that the
determination whether or not to review a decision on his or her own
motion is not subject to reconsideration, review or appeal. Since the
Director has unfettered discretion in deciding whether or not to review
a decision, and any claimant unhappy with a new decision issued after
such a review by the Director is provided the same rights to seek
reconsideration, review or appeal associated with any OWCP decision, no
purpose would be served by allowing further review of the Director's
decision to review a previous decision.
Hearings
In Sec. 10.615 a provision has been added granting hearing
representatives discretion to conduct an oral hearing by telephone or
teleconference. Section 10.616(b) revises the time period in which a
claimant can request a change in the format of a hearing. A request
received by the Branch of Hearings and Review before the date OWCP
issues a notice that the record is closed for written review, or has
set a date for an oral hearing, will be granted. Later requests will be
subject to OWCP's discretion.
Section 10.617(g) makes clear that the hearing representative may
terminate a hearing at any time that he or she deems the actions of the
claimant and his or her representative to be disruptive. This provision
reflects current practice.
The discussion of issuing subpoenas, Sec. 10.619, has been revised
to set forth the criteria for issuing a subpoena. To alleviate
confusion that has been demonstrated concerning the circumstances under
which subpoenas can be issued, Sec. 10.619(a) specifically provides,
consistent with practice based upon ECAB precedent, that subpoenas will
be issued at the request of a claimant only in connection with
hearings. Moreover, it makes clear that this method of gathering
evidence is to be used as a last resort. Because the hearing is an
informal procedure, not bound by rules of evidence or formal rules of
procedure, the need for subpoenas is limited and is sufficiently
accommodated by providing that a subpoena can be issued for documents
when the information is not available by other means and for witnesses
when oral testimony is the best way to ascertain the facts. To avoid
disruptions of the hearing process and encourage early and active
development of the evidence, Sec. 10.619(a)(1) provides that a subpoena
must be requested within 60 days after the date of the original hearing
request.
To clarify the role of a representative of the employer at a
hearing, the discussion of this subject, in Sec. 10.621(b), has been
revised to specifically note that a hearing representative may deny a
request by the claimant that the agency representative testify where
the claimant cannot establish that such testimony would be relevant or
because the representative does not have the appropriate level of
knowledge.
Section 10.622 revises the rules concerning postponement of oral
hearings to address problems that have arisen since the institution of
the current rules concerning postponements in 1987. Oral hearings are
scheduled at locations within a reasonable proximity to claimants'
places of residence. As a result, hearings are scheduled throughout the
country, several times a year in some locations and only once a year in
other locations. For each trip, one hearing representative is assigned
a number of cases as the ``docket''. Before the trip, the hearing
representative must review each file, research the issues, and prepare
the record, all of which requires many hours of work.
Scheduling and workload constraints prevent OWCP from sending the
same hearing representative to the same city each time. Thus, when a
hearing is postponed, it often requires that another hearing
representative repeat the preparation for the hearing undertaken by the
previous representative. Furthermore, in many cases it is too late to
schedule another case for that slot on the docket, thus needlessly
delaying hearings for other claimants.
The current rule, found at Sec. 10.137, which allows a postponement
for ``good cause'' if the request is received at least three days prior
to the date of the hearing, has proven completely ineffective at
controlling the waste of resources caused by postponements. Disputes
over what constitutes ``good cause'' sometimes take longer and require
more resources than rescheduling the hearing itself. The result is
delay, not only for the claimant whose hearing was scheduled and
postponed, but for other claimants adversely affected by the
inefficiency of the current process.
Thus, new procedures are being adopted which provide that, once the
oral hearing is scheduled, it cannot be postponed unless the hearing
can be rescheduled on that same trip. In the event that an oral hearing
cannot be rescheduled on that same trip, the claimant will be provided
a review of the written record instead. The proposed limitation is a
reasonable compromise which will improve the administration of the
program. The program's resources must be preserved to ensure the best
service to all those seeking a hearing. Constant and repeated
postponement of oral hearings constitute a serious drain on those
resources. The review of the written record by a hearing representative
as a substitute for an oral hearing has served as an effective way to
provide the review contemplated by the FECA on a more timely basis than
resources otherwise would permit.
In most cases, the issues relate to written evidence (particularly
medical evidence). A face-to-face hearing does little to clarify
medical issues, since the determination, in most cases, must be made on
the basis of written medical evidence in the file. A review of the
written record has been selected, therefore, as an effective way to
provide the review of the decision by a hearing representative where
the claimant must postpone the hearing.
Another change to the oral hearing procedure is to allow a claimant
to express a preference for scheduling an oral hearing. OWCP will
attempt to comply with any scheduling preferences of which it is
advised at the time of the original request. Once the notice of hearing
is sent, the claimant can request a change in the day and the time of
the hearing within the same docket.
Review by the Employees' Compensation Appeals Board (ECAB)
Claims on appeal often have continuing issues, such as payments of
bills or actions on collateral issues such as recurrences, requiring
actions by OWCP. Sometimes, because the case is under the jurisdiction
of the ECAB, there are questions as to what can and cannot be done by
OWCP when cases are before the ECAB. To clarify this issue, language
has been added to the regulations, in Sec. 10.626, which explains the
circumstances under which OWCP still has jurisdiction over issues in
cases pending before the ECAB.
Subpart H, Specialized Topics
This subpart contains most of the information found in current
subparts G and H (Secs. 10.500 through 10.624), as well as the material
found in Sec. 10.142.
[[Page 67129]]
Representation
Current Sec. 10.143 states, with no elaboration, that a claimant
may authorize any individual as a representative in a claim before
OWCP. Section 10.700 more fully describes who may act as a
representative, what authority a representative has, and specifies that
there can be only one representative in a claim at a time. These
provisions essentially incorporate current practice.
The FECA gives to the Director, as the Secretary's delegate, the
authority to approve fees associated with representation of a claim
under the FECA. In the past, OWCP claims personnel have reviewed all
bills for representatives' services, even if the claimant did not
disagree with the amount billed. To reduce the workload imposed by
extensive review of bills with which claimants do not disagree,
Sec. 10.702 implements a new procedure by which OWCP would
automatically approve all fees unless the represented party objects to
the amount billed. In that case, OWCP will give that party an
opportunity to submit further information. OWCP will then adjudicate
the request according to the criteria set forth in Sec. 10.703(c). This
section adopts the criteria in the existing regulations at
Sec. 10.145(b), after removing items that are essentially duplicative.
Third-Party Liability
Current Sec. 10.501 through Sec. 10.507 essentially restate
provisions of sections 8131 and 8132 of the FECA. Much of that material
has, therefore, been removed as redundant. Sections 10.704 to 10.719
explain, interpret and clarify duties of FECA claimants and their
counsel pursuant to sections 8131 and 8132 of the FECA. Section
10.705(b) incorporates into the regulations a specific reference to the
fact that the Office of the Solicitor (SOL) administers the subrogation
aspects of certain FECA claims for OWCP. (This does not, however,
preclude an employing agency from participating in administering the
subrogation aspect of its employees' cases under a specific agreement
with OWCP.) Section 10.706 explains how a FECA beneficiary is informed
of the obligation to pursue a claim against a third party. Section
10.707 provides a list of all actions that must be taken by a FECA
beneficiary in order to comply with the requirement in section 8131 of
the FECA that a claimant prosecute an action against a third party when
required to do so by OWCP. The purpose of this section is to inform
claimants that failure to comply with any of the requirements in this
section could result in forfeiture of all FECA benefits arising out of
the injury at issue. Section 10.708 further details the penalties that
can be applied to a FECA beneficiary who fails to prosecute a claim or
to assign it to the United States when requested to do so by indicating
that OWCP may order forfeiture of such benefits or alternatively could
suspend such benefits until the request to assign or prosecute is
complied with. In many instances, review of the information available
to OWCP indicates that there is a possibility of third party liability,
which, upon further investigation by private counsel consulted by the
FECA beneficiaries, is either not economical to pursue or simply not
meritorious. Section 10.709 sets forth the procedure to be followed by
a FECA beneficiary to be released from the obligation to prosecute an
action against a third party.
Section 10.710 is being added to the regulations to clarify that
any person who has filed a FECA claim that has been accepted or who has
received FECA benefits in connection with a claim filed by another
person must report any receipt of money or other property as a result
of the liability arising out of that injury to OWCP or SOL within 30
days of receipt. Section 10.711 is being added to the regulations in
order to provide a step by step explanation of the calculation of the
refund to be paid to the United States and any credit against future
benefits calculated in accordance with the formula contained in section
8132 of the FECA. The only change contemplated from existing practice
by this formula is elimination of the opportunity to offset payment of
medical expenses to federal facilities or other parties from any
recovery. This practice has been allowed as an administrative
accommodation, but rarely occurs and is no longer considered necessary.
Any medical expenses paid directly by the FECA beneficiary should be
submitted directly to OWCP for reimbursement as appropriate.
Section 10.712 incorporates into the regulations OWCP's
longstanding practices in regard to what amounts are included in the
gross recovery reported in connection with third party liability for an
injury covered by the FECA. Section 10.713 is being incorporated into
the regulations to require that a FECA beneficiary who receives a
structured settlement (one which provides for payment of funds over a
specified period of time rather than immediately) report as the gross
recovery the present value of the right to receive all of the payments
called for in the settlement. This requirement is in keeping with the
plain language of section 8132 of the FECA, which covers the receipt of
``money or other property'' and the recognition that the right to
receive a stream of payments in the future is clearly a valuable
property right. This definition is intended to overrule the holding of
the ECAB in Benjamin S. Purser, Jr., 42 ECAB 204 (1990).
Section 10.714 sets forth the manner in which OWCP calculates
disbursements which it makes in connection with a FECA claim to be
refunded in accordance with the formula set out in section 8132 and
Sec. 10.711 of these regulations. The only change from existing
practice is to allow for subtraction from the total of refundable
disbursements of the cost of any medical examination that the FECA
beneficiary establishes that the employing agency should have made
available at no charge to the employee under a statute other than the
FECA. This change is being made to ensure that employees who sustain
injuries covered by the FECA are not treated less favorably than those
who receive such treatment but have not sustained injuries covered by
the FECA.
OWCP has decided to impose interest charges on refunds due to the
United States pursuant to section 8132 of the FECA as set forth in
Sec. 10.715. This is a change in current policy and is consistent with
the Debt Collection Act of 1982. In view of the fact that certain FECA
beneficiaries currently receiving compensation payments owe refunds and
have refused to pay, a provision is being added to the regulations at
Sec. 10.716 allowing collection of such refund by withholding from
payments currently payable under FECA. Section 10.717 is being added to
the regulations to clarify OWCP's longstanding interpretation that,
since an injury caused by medical malpractice in treating a FECA-
covered injury is itself an injury covered by FECA, any recovery
received in a negligence suit arising out of such malpractice is a
recovery subject to section 8132 of the FECA. Similarly, Sec. 10.718 is
being added to the regulations to make clear another longstanding OWCP
interpretation: that insurance payments to a beneficiary pursuant to a
policy the beneficiary has purchased do not constitute a recovery
pursuant to section 8132.
Section 10.719 is being added to the regulations to interpret the
phrase ``same injury'' for the purposes of implementing section 8132 of
the FECA. While an argument can be made that the statute intended that
each recovery for a medical condition or wound should be
[[Page 67130]]
treated separately for the purpose of calculating any required refund
or credit against future benefits (an argument which has been accepted
by one district court, in Benjamin S. Purser, Jr. v. United States
Department of Labor, 943 F.Supp. 898 (M.D. Tenn. 1996), the approach
being adopted by these regulations is more consistent with the intent
of section 8132 and the administration of the FECA. Attempting to
separate out each different ``injury'' incurred in, for example, an
automobile accident as a result of which an injured employee may have
multiple medical conditions affecting numerous body parts in order to
allocate a single settlement from the other driver into pieces appears
to be an artificial exercise that serves no purpose set forth by the
statute. Such an interpretation invites artful drafting of settlement
agreements designed to negate the intended effect of the statute to, in
part, shift the costs of FECA onto parties who have caused injuries
covered under the FECA. Since each claim for FECA benefits arising out
of a single incident is administered as one file, regardless of the
number of wounds or medical conditions involved, attempting to
separately account for the recovery attributable to each wound and to
offset any credit against future benefits only to medical payments
attributable to that wound would be nearly impossible, except in the
most arbitrary manner and even then would be time-consuming, cumbersome
and a source of immense delay and confusion.
Federal Grand and Petit Jurors
Current Sec. 10.620 on the definition of jurors has been moved to
the list of definitions at Sec. 10.5(h), while current Sec. 10.621 on
the applicability of the other subparts of the regulations has been
removed as unnecessary.
Peace Corps Volunteers
Current Sec. 10.600 on the definition of Peace Corps volunteers,
Sec. 10.601 on the applicability of the FECA, Sec. 10.602 on when
disability compensation commences, Sec. 10.603(a) through (c) on
special pay rate considerations, and Sec. 10.604 on the period of
service of volunteers essentially restated provisions of the FECA and
other relevant statutes and have therefore been removed as redundant.
Non-Federal Law Enforcement Officers
Current Sec. 10.612(d) on the eligibility of non-federal law
enforcement officers, Sec. 10.617(c) on the adjudication of these
claims, Sec. 10.618 regarding consultation with the Attorney General
and other agencies, and Sec. 10.619 on cooperation with state and local
agencies essentially restated provisions of the FECA and have therefore
been removed as redundant.
Subsections (a) and (c) of Sec. 10.735 combine current Secs. 10.611
and 10.612, which have been rewritten to accommodate the question and
answer format and to delete material that simply restated provisions of
the FECA, without any attempt to make a substantive change. Subsection
(b) is new and restates other parts of the FECA for use as a general
rule. The last sentence of subsection (b) reflects OWCP's longstanding
practice with respect to the issue of coverage under this subpart for
individuals who only perform administrative functions in support of
eligible officers.
The last sentence of Sec. 10.736 is new and reflects a recent ECAB
decision which construed the time limitation provision of 5 U.S.C.
8193(c)(3).
Section 10.738 has been rewritten with minor changes throughout to
address a growing body of ECAB precedent regarding the nature and
extent of coverage for officers who are injured in situations that
involve potential federal crimes (as distinguished from actual crimes
that have resulted in a criminal prosecution).
Section 10.739 is new and describes the type of objective evidence
necessary to establish the existence of a potential federal crime for
purposes of coverage consistent with several ECAB decisions on this
point. An enumeration of the various methods for making this type of
showing is necessary to assist OWCP in its adjudication of a growing
number of these sorts of claims.
Section 10.741 is new and substantially rewrites the existing
regulation at Sec. 10.616 to reflect longstanding administrative
practices regarding the interpretation of what constitutes
``comparable'' benefits consistent with ECAB precedent. Section
10.741(c) is added to the regulations to explain how these benefits are
calculated in certain circumstances where the officer contributes to
the fund which is the source of the benefit. These provisions are
needed to provide OWCP with guidance in adjudicating these matters,
which have generated a number of inquiries from officers and their
representatives. This interpretation is consistent with OWCP's current
practice in calculating how much of the eligible officer's FECA benefit
must be offset as a result of the receipt of comparable benefits.
Subpart I, Information for Medical Providers
This subpart is designed to gather in one section all of the
information needed by medical providers. It combines some of current
Secs. 10.410 through 10.413 with Secs. 10.450 through 10.457.
It also contains proposed revisions in the rules establishing
procedures for submission and reimbursement of inpatient hospital
services and pharmaceutical bills under the FECA. These revisions would
supplement rules in effect since 1986, which provide for a fee schedule
for reimbursement of medical procedures and services. This fee schedule
currently applies to all physician services as defined under the FECA,
and to outpatient professional services.
Medical Bills
In Sec. 10.801, references to National Drug Codes and Revenue
Center Codes have been added to the list of codes which the medical
provider must specify. References to UB-82 have been changed to UB-92,
as the latter has become the standard billing form for hospitals. A
statement that pharmacy bills are to be submitted on the Universal
Claim Form has also been added.
Medical Fee Schedule
Sections 10.809 and 10.810 are new. OWCP believes that expanding
its ability to control and monitor medical costs is a critical element
in ongoing efforts to enhance the management of injuries under FECA.
Under these rules, both pharmacy bills and inpatient hospital bills
will be subject to cost containment methods.
Under the FECA, OWCP authorizes payment for medical services and
establishes limits for fees for such services (March 10, 1986, 51 FR
8276-82, as amended). Since 1994, the schedule for payment of
professional services has been based on the relative value units
(RVU's) devised by the Department of Health and Human Services, Health
Care Financing Administration (HCFA). When appropriate for the
schedule, OWCP devises its own RVU's for procedures not covered under
the HCFA schedule, for procedures without an assigned RVU under the
HCFA schedule, for services HCFA covers under other schedules, and for
services unique to OWCP, such as second opinion and impartial medical
evaluations. In addition, OWCP devises its own conversion factors to
meet program needs.
The Department recognizes the worth of using a schedule to
reimburse
[[Page 67131]]
covered medical services in that it provides an equitable method to
implement cost control measures, and it enhances the ability to manage
injury claims, especially the appropriateness of the medical services
provided and their relatedness to the compensable injury. These same
principles underlie the extension of cost controls to pharmacy and
hospital bills.
Pharmacy bills: At present, pharmacy payments, which constitute
nearly 6% of the total medical outlays of the program, are not
controlled by the fee schedule. These rules would reimburse pharmacies
under a set schedule. To standardize payments for medicinal drugs, the
program has devised a fee schedule based on the Average Wholesale Price
(AWP) of each individual drug plus a dispensing fee established by the
Director. AWP prices will be obtained from a file provided by a
nationally recognized vendor containing medicinal drugs listed by their
unique National Drug Codes (NDCs). AWP prices will be updated on a
regular basis.
The AWP is set by the industry, and represents what pharmacies are
expected to pay for the drug. The dispensing fee will be twenty percent
of the cost of the drug up to a maximum of $12.50. Thus, if the AWP of
a drug is $20.00, there would be a dispensing fee of $4.00, and the
maximum allowable charge for the drug would be $24.00. If the AWP of
the drug was $500.00, however, the dispensing fee would be limited to
$12.50, and the maximum allowable charge would be $512.50.
The basic methodology is widely practiced. In all, 23 state
workers' compensation programs have some form of control over drug
costs through the use of a maximum allowable schedule; 17 of these
states have a set schedule for prescription drugs and six more have
reimbursement formulas based on average wholesale price similar to that
proposed for the FECA program or comparable data. OWCP's Division of
Coal Mine Workers' Compensation uses this formula for reimbursement of
drugs under the Black Lung Benefits Act.
Hospital bills: Proposed Sec. 10.810 concerns hospital bills.
Currently, only hospital outpatient services are subject to a fee
schedule. The OWCP now proposes to reimburse hospital inpatient
services under a prospective payment system (PPS) that is based on the
systems used by the Health Care Financing Administration's Medicare
program (42 CFR parts 412 et al).
The OWCP now proposes to use the HCFA prospective payment system
(PPS) using Diagnostic Related Groups (DRGs) (42 CFR part 412, et al.)
as the foundation of a PPS for determining the allowable reimbursement
for inpatient services covered under FECA. OWCP has already
successfully converted the foundation of its professional medical fee
schedule to the HCFA RVUs, and the use of the HCFA PPS will establish a
common base for payment of medical services under both agencies. OWCP's
proposal to use the HCFA PPS is compatible with hospital inpatient cost
control measures used by other federal agencies such as the Department
of Veterans Affairs (VA) and the Department of Defense, Civilian Health
and Medical Program of the Uniformed Services (CHAMPUS), who are also
using DRG-based reimbursement systems. In addition, several state
workers' compensation programs are using DRG-based systems to control
the cost of inpatient services for work-related injuries.
The HCFA PPS is based on the premise that similar medical
conditions and surgeries require similar inpatient services and
resources, and that those conditions and surgeries can be categorized
into DRGs according to the primary diagnoses and major surgical
procedures performed, as coded under the International Classification
of Diseases, 9th Revision (ICD-9-CM). Under the HCFA PPS, hospitals
receive a fixed, predetermined reimbursement for each beneficiary's
inpatient stay according to the assigned DRG and whether or not the
length of stay is considered to be an outlier (the number of inpatient
days is not within the nationally calculated range for the assigned
DRG).
Under the HCFA PPS, the reimbursement rate is hospital-specific and
is determined through a complex formula that considers national average
costs for all inpatient services, geographic wage and overhead indices,
medical education costs, patient mix, indigent care costs, and capital
investments. The HHS PPS DRG rates are updated each year and are
described in detail in the Federal Register (42 CFR part 412, et al.)
OWCP's decision to use the HCFA PPS as the foundation of its
reimbursement system is based on research that explored available
options, and on a study of FECA inpatient bills. OWCP reviewed a
representative sample of inpatient services reimbursed under FECA,
assigned DRGs in accordance with the HCFA DRG grouper rules, and used
the HCFA pricer program to determine allowable amounts under Medicare.
In the study, fourteen DRGs accounted for 61% of the dollars billed
and 64% of the inpatient stays. A wide range of diagnostic conditions
and medical procedures were represented in the study, nevertheless, and
they comprised a diverse list of DRGs. It is evident from the study
analyses that there is considerable variation in the amounts different
hospitals bill FECA for similar services. These billed amounts are
greater by a mean of 45% than the amounts that would be allowed if the
inpatient stay were paid under the HCFA PPS.
In instances of musculoskeletal soft tissue injuries, however, the
OWCP study indicated that the injured worker under FECA may at times
require a very short stay compared to that common for a patient under
HCFA's Medicare program. For that reason, the billed amounts under FECA
were in some cases actually less than that allowed under the HCFA PPS
for the same DRG. Short inpatient stays, however, are not uncommon for
work-related injuries and often are considered appropriate for post-
trauma observation and for diagnostic procedures. Services at
psychiatric and rehabilitation hospitals were excluded from this
portion of the analysis because they are not currently subject to the
HHS PPS for acute care.
Although there are differences in the medical conditions treated
under the HCFA and the FECA beneficiary populations, the study
indicated that the HCFA PPS using DRGs is well-suited to OWCP's efforts
to expand its ability to monitor and control inpatient costs covered
under FECA. Other federal agencies have reached similar conclusions,
such as CHAMPUS (32 CFR part 199) and the VA (38 CFR 17.55).
HCFA currently collects comprehensive hospital-specific fiscal
data, and has considerable experience in this regard. They have been
paying for inpatient services under a PPS since October 1983. OWCP does
not have the resources to collect such data now or in the foreseeable
future. In addition, the Department believes that duplicate collection
of data is not an efficient use of staff and resources.
It is proposed, therefore, that OWCP base reimbursement of
inpatient services covered under FECA on the HCFA PPS as described
below:
a. Hospitals must submit bills for inpatient services covered under
FECA on the Standard Form UB-92, or its equivalent, with all common
information completed. This information includes the hospital's
Medicare number, the patient's Social Security number, the FECA claim
number when available, the billed amount, and the primary conditions
[[Page 67132]]
treated and procedures performed coded under the current edition of the
International Classification of Diseases, 9th Revision, Clinical
Modification (ICD-9-CM), Volumes I, II, and III, and/or in accordance
with that specified in the yearly update of the HCFA regulations (42
CFR part 412, et. al.)
b. OWCP's adaptation of the HCFA PPS includes use of the HCFA
grouper and pricer programs, and an adjustment factor (AF) to the HCFA
DRG maximum allowable, which considers the uniqueness of work-related
injuries. For example, the median age of the FECA patient is about 42
years, rather than over 65, as is the case under the Medicare program.
Secondly, a low volume of FECA patients is expected at any one hospital
compared to the number of patients covered under the Medicare program.
Thirdly, at times there will be a need for more comprehensive
diagnostic and test procedures to determine the work-relatedness of
conditions, and/or conditions that may delay return to work. Finally,
FECA patients may have nationally common length of stays (LOSs)
different than those for Medicare patients, and FECA's goal to return
injured employees to work as soon as possible is not a Medicare goal
for a retired population.
OWCP believes, however, that the HCFA PPS is well-suited to be the
foundation of an OWCP PPS for inpatient services, and that it provides
a comprehensive data resource not otherwise available to the
Department. OWCP's proposal to use an adjustment factor (AF) to adapt
the HCFA PPS to individual program needs is consistent with similar
methods used by other federal and state agencies. The AFs used under
the OWCP PPS are based on the results of comprehensive studies of
inpatient services conducted by OWCP in 1996 and 1990, and on ongoing
analyses of medical costs and services provided under FECA.
c. Under OWCP's proposed PPS, the HCFA allowable for a specific DRG
at a particular facility constitutes OWCP's Threshold Amount (TA) for
the DRG. The OWCP AF to each TA considers: (1) Lengths of stay (LOS)
that are outside the HCFA LOS parameters; (2) LOS that are within the
HCFA LOS parameters but under OWCP are consistently on the short or
long end of the parameter for particular DRGs; and (3) cost outliers
that are the result of unique care requirements, particularly expensive
hardware such as that frequently used in joint replacements, or are
attributable to inflated charges.
In addition: (1) The proposed OWCP PPS per diem rate will not be
less than that allowable under the HCFA DRG program when based on the
50th percentile LOS as reported in the Federal Register by HCFA for the
Medicare program; and (2) the total dollar amounts reduced from billed
amounts will be consistent with reduction rates under other portions of
the OWCP medical fee schedule and with cost to charge ratios for
inpatient services reported by HCFA.
The following abbreviations are used in OWCP's formulae for setting
the AF:
TA--Threshold Amount--the HCFA Medicare program maximum allowable for a
specific DRG at a particular facility.
TA/H50--Threshold Amount Per Diem rate--the daily rate when the TA is
divided by the HCFA national 50th percentile LOS days.
HCFA LOS--The length of stay days as defined under the HCFA national
data sets reported in the Federal Register yearly; three sets are used
for these formulae:
H25 = 25th percentile
H50 = 50th percentile
H75 = 75th percentile
OWCP LOS--The actual number of inpatient days billed for covered
services provided a claimant under FECA.
OWCP's formulae for setting the AF are:
(1) The OWCP DRG standard maximum allowable (MA)
The OWCP LOS is within the HCFA LOS parameters, the 25th (H25) to
the 75th (H75) percentiles, and the billed amount is not greater than
twice the OWCP TA.
(TA x 1.24)--[(TA/H50*0.12) * (H75-LOS)] = MA
(2) The OWCP Short Stay Maximum Allowable (MASS)
The OWCP LOS is less than the HCFA 25th percentile (H25). Short
stays regardless of billed amounts are covered under this formula.
[(TA/H50) * (1.72*LOS)] + [(TA/H50*0.33) * (H50-LOS)] = MASS
This formula allows for higher costs typically associated with the
first days of an inpatient stay, and an incentive allowance for IP days
less than the H25.
(3) The OWCP Long Stay and/or Cost Outlier Maximum Allowable (MACO)
The OWCP LOS is (a) greater than the HCFA 75th (H75) percentile
LOS, considered a long stay, or (b) the billed amount is considered a
cost outlier (greater than twice the TA) but the LOS is within the HCFA
LOS parameters (H25 to H75).
(TA x 1.24) + [(Billed Amount-(TA x 1.24)) x 0.50] = MACO
This formula adjusts for the outlier length of stay, or
confinements with documented outlier costs when the length of stay is
within the H25-H75. The costs beyond the OWCP MA, however, are only
paid at 50% of the billed amount. There is no additional adjustment for
number of inpatient days. If the long stay billed amount is less than
the TA x 1.24, then no charges are paid at the 50% rate.
These formulae always result in a payment greater than the HCFA
Medicare program allowable per diem rate (TA/H50). They are consistent
with reimbursement principles used by CHAMPUS, the VA, and state
workers' compensation programs for short and long stays, and for cost
outliers.
d. OWCP proposes to use a separate schedule to reimburse facilities
not covered (FNCs) under the HCFA PPS, such as those that only provide
rehabilitation or psychiatric services. The information required on
each bill will be the same as that required of acute care facilities,
including ICD-9-CM coding of diagnostic conditions being treated and
any major procedures performed. During a two-year phase-in period, this
FNC schedule is to be based on HCFA-calculated cost to charge ratio
(CCR) data for acute care inpatient services, currently set at about
55%, on data shared by CHAMPUS and state workers' compensation
programs, and on the 1996 OWCP inpatient hospital services study.
The FNC schedule will be applied to inpatient services provided at
FNCs when CCR data is available to OWCP. When CCR data is not
available, reimbursements will be negotiated prior to services based on
locality FNC estimated CCR and available cost data.
FNC Per diem rate * CCR * 1.24 = FNC MA
Outlier costs will be negotiated based on the FNC formula.
20 CFR Part 25
Subpart A--General Provisions
Former Sec. 25.3 regarding the use of local workers' compensation
law and the Special Schedule has been deleted as unnecessary.
Subpart C--Extensions of the Special Schedule of Compensation
Section 25.200(a) now includes a specific statement that direct-
hire employees of the U.S. Military Forces covered by the Philippine
Medical Care Program and the Employees' Compensation Program pursuant
to the agreement signed by the United States and the Republic of the
Philippines on March 10, 1982 who are also members
[[Page 67133]]
of the Philippine Social Security System are not covered by the
modified Special Schedule that is otherwise applicable in the Republic
of the Philippines.
In addition, old reserved Secs. 25.23 and 25.24 have been deleted
as unnecessary. Furthermore, old Sec. 25.25 has also been deleted to
reflect OWCP's prior policy determination (and concomitant
administrative practice) to apply the lesser of the provisions of local
law in the Republic of Korea or FECA (not the special schedule).
Statutory Authority
Section 8149 of the Federal Employees' Compensation Act, (5 U.S.C.
8101, et seq.), provides the general statutory authority for the
Secretary to prescribe rules and regulations necessary for
administration and enforcement of the Act. Section 5 U.S.C. 8103
provides specific authority regarding medical treatment and care,
including determining the appropriateness of charges. The Debt
Collection Act of 1982, as amended authorizes imposition of interest
charges and collection of debts by withholding funds due the debtor.
Executive Order 12866
This proposed regulatory action constitutes a ``significant'' rule
within the meaning of Executive Order 12866. The Department believes,
however, that this regulatory action will not have a significant
economic impact on the economy, or any person or organization subject
to the proposed changes. The proposed changes will have little or no
effect on the level of benefits paid (which in any case involve
payments almost exclusively to Federal employees from funds
appropriated by Congress); nor will there be a significant economic
impact upon the hospitals and pharmacies which, for the first time,
will be subject to the fee schedules established by these rules. The
total dollar amount paid for inpatient hospital services in fiscal year
1996 was $81,955,562.00, and subjecting these charges to the DRG
schedule is expected to result in a 20 percent decrease in the amount
paid, or about $16.4 million. The total dollar amount paid for pharmacy
costs in fiscal year 1996 was $31.9 million, and subjecting these
charges to the fee schedule is expected to result in a 10 to 15 percent
decrease in the amount paid, or about $3-4.5 million. Insofar as the
proposed amendments make it easier to seek benefits under the FECA and
streamline the administration of the program, they would decrease
administrative costs. The proposed changes have been reviewed by the
Office of Management and Budget for consistency with the President's
priorities and the principles set forth in Executive Order 12866.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as E.O. 12875, this rule does not include any federal mandate that may
result in increased expenditures by state, local and tribal
governments, or increased expenditures by the private sector of more
than $100 million.
Paperwork Reduction Act
The new collection of information contained in this rulemaking has
been submitted for review to the Office of Management and Budget (OMB)
in accordance with the Paperwork Reduction Act of 1995. No person is
required to respond to a collection of information request unless the
collection of information displays a valid OMB control number.
The new information collection requirements contained in this
proposed rule are set forth in Secs. 10.801 and 10.802, and they relate
to information required to be submitted by pharmacies and hospitals
covering certain in-patient bills. The Department is proposing to
create a new form (Universal Pharmacy Billing Form) which will be used
by pharmacies in submitting claims for payment. Another form (the
claimant reimbursement form) will be used by claimants seeking
reimbursement for medical expenses for which they have paid the
providers directly. The public reporting burden for these collections
of information is estimated to average as follows: Universal Pharmacy
Billing Form--It will take five (5) minutes to complete the form,
including time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed and completing and
reviewing the collection of information; Claimant Reimbursement Form--
we estimate it will take an average of ten (10) minutes to complete
this form, including reviewing instructions, searching for existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
The Department would like to solicit comments to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Type of Review: New Collection.
Agency: Employment Standards Administration.
Title: Claimant Medical Reimbursement Form (CA-915).
OMB Number: None.
Affected Public: Individuals or households, Federal Government.
Total Respondents: 40,500.
Frequency: On occasion.
Total Responses: 40,500.
Average Time per Response: 10 minutes.
Total Hours: 6,723.
Total Burden Cost (capital/startup): 0.
Total Burden Cost (operating/maintenance): 0.
Type of Review: New Collection.
Agency: Employment Standards Administration.
Title: NCPDP Universal Pharmacy Billing Form (79-1A).
OMB Number: None.
Affected Public: Businesses or other for-profit; Not-for-profit
Institutions; Individuals or households; Federal Government; State,
Local or Tribal Government.
Total Respondents: 406,198.
Frequency: On occasion.
Total Responses: 406,198.
Average Time per Response: 5 minutes.
Total Hours: 33,714.
Total Burden Cost (capital/startup): 0.
Total Burden Cost (operating/maintenance): 0.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to the Office of information Management, U.S. Department of
Labor, Room N-1301, 200 Constitution Avenue, Washington, DC, 20210; and
to the Office of Information and Regulatory Affairs, Attn: ESA Desk
Officer, OMB New Executive Office Bldg., 725 17th Street NW., Room
10235, Washington, DC 20003.
Regulatory Flexibility Act
The Department believes that the rule will have ``no significant
economic impact upon a substantial number of small entities'' within
the meaning of
[[Page 67134]]
section 3(a) of the Regulatory Flexibility Act. Pub. L. No. 96-354, 91
Stat. 1164 (5 U.S.C. 605(b)). The provisions of the proposed rules
extending cost control measures to hospital inpatient services and
pharmacies is the only provision of the regulations which may have a
monetary effect on small businesses. That effect will not be
significant on a substantial number of those businesses, however, for
no one business bills a significant amount to OWCP for FECA-related
services, and the effect on those bills which are submitted, while a
worthwhile savings for the government in the aggregate, will not be
significant for individual businesses affected.
The two new cost containment provisions are: (1) a set schedule for
payment of pharmacy bills; and (2) a prospective payment system for
hospital inpatient services. The two methodologies are fully explained
in the text of the preamble, including the fact that the use of
Diagnostic Related Groups (DRGs) for setting payment for in-patient
hospital charges essentially is an adaptation of a system used by the
Health Care Finance Agency (HCFA) in payment of Medicare bills. The use
of Average Wholesale Prices (AWP) in setting the maximum reimbursable
amount for pharmacy bills is also commonplace in the industry.
The method selected by OWCP is therefore one which contains
efficiencies both for the government and providers. The government
benefits because OWCP did not reinvent the wheel, but minimized
resources by adopting existing and well-recognized systems already in
place. The providers benefit because submitting a bill to OWCP and
receiving payment will be almost the same process as submitting it to
Medicare, a program with which hospitals are already familiar and have
in place for billing, so they will not have to learn a new process and
the FECA bills will not represent an unnecessary administrative cost
because the FECA bill process will not be essentially distinguished
from that for Medicare. Similarly, the pharmacies are used to billing
through clearing houses and having charges subject to limits by private
insurers. By adopting the uniform billing statement and a familiar cost
control methodology, OWCP has kept close to the environment with which
the pharmacies are already familiar. The methods chosen, therefore,
represent a familiar environment to the providers.
The costs savings resulting from the implementation of these cost
containment methods are significant only in the aggregate and will have
no significant effect on any individual businesses. First, the need for
cost containment in the FECA program is self evident and these methods
are already utilized by Medicare, CHAMPUS and Veterans Administration
among government entities, and for the private insurance carriers which
cover Federal employees as part of the Federal employees' health
benefit insurance programs. The costs to providers whose charges may be
reduced are relatively small, both in incremental and in actual terms.
Incrementally, FECA bills simply do not represent a large share of
any one provider's total business. Since Federal employees are spread
throughout the United States and this system covers only those Federal
employees who are injured on the job and require either prescription
drugs or inpatient hospital care (a tiny subset of all employees), the
number of bills submitted by any one provider which may be subject to
these provisions is likely to be very small.
Second, in actual terms, the amount by which these bills might be
reduced will not have a significant impact on any business. As noted
earlier in this preamble, in fiscal year (FY) 1996, the program paid
$81.9 million dollars on about 15,700 bills received for in-patient
hospital services (an average charge of $5,225.00 per stay). The total
number of hospitals on our provider files is about 5,000, for an
average patient load of slightly over three FECA-claimant patients per
hospital. If we assume that no hospital had more than three patients,
then the average annual billings subject to these rules for any
hospital would be about $15,775 (3 x $5,225). As also noted earlier in
the preamble, the DRG method will reduce the $81.9 million by about 20
percent, or $16.4 million. Thus, the average dollar amount of the
reduction in bills submitted by any one hospital resulting from these
rules would be about $3,150.00.
A similarly small actual dollar reduction applies to pharmacy
charges. OWCP paid about $32,000,000 for pharmacy charges, although we
cannot identify exactly what portion of this amount was paid to
institutions, since much of this dollar figure represents
reimbursements directly to claimants. We cannot identify with certainty
the number of pharmacies who provided supplies, for the same reason,
but there are about 4,000 pharmacies in our provider files. Similarly,
we cannot determine the exact number of bills paid, since we capture
only those submitted by a provider for direct payment and not those
submitted by a claimant for reimbursement. Assuming for purposes of
this analysis that the reimbursements were evenly divided among
pharmacies already part of our provider files, we divide 4,000
providers in to the total number of dollars paid to get an average
annual aggregate of charges paid to a provider of about $8,000.00. It
is estimated that the schedule would result in an average reduction of
five percent in pharmacy charges; based on these figures, the average
pharmacy would see a reduction in the total amount of charges submitted
of about $400.
These figures illustrate that the ``cost'' of these rules to any
one provider is negligible. On the other hand, OWCP will see
substantial aggregate cost savings as a result (estimated at
$18,000,000). These savings benefit OWCP (by strengthening the
integrity of the program), the employing agencies (which ultimately
foot the bill for FECA through the chargeback system), and taxpayer and
rate payers to whom the ultimate costs of the program are eventually
charged through appropriations.
The Assistant Secretary for Employment Standards has certified to
the Chief Counsel for Advocacy of the Small Business Administration
that these rules will not have a significant impact on a substantial
number of small entities. Accordingly, no regulatory impact analysis is
required.
List of Subjects for 20 CFR Parts 10 and 25
Administrative practice and procedures, Claims, Government
employees, Labor, Workers' compensation.
For the reasons set forth in the preamble, it is proposed that 20
CFR Chapter I be amended as follows:
1. It is proposed that part 10 be revised to read as follows:
PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES'
COMPENSATION ACT, AS AMENDED
Subpart A--General Provisions
Sec.
Introduction
10.0 What are the provisions of the FECA, in general?
10.1 What rules govern the administration of the FECA and this
chapter?
10.2 What do these regulations contain?
10.3 Have the collection of information requirements of this part
been approved by OMB?
Definitions and Forms
10.5 What definitions apply to these regulations?
10.6 What special statutory definitions apply to dependents and
survivors?
[[Page 67135]]
10.7 What forms are needed to process claims under the FECA?
Information in Program Records
10.10 Are all documents relating to claims filed under the FECA
considered confidential?
10.11 Who maintains custody and control of FECA records?
10.12 How may a FECA claimant or beneficiary obtain copies of
protected records?
10.13 What process is used by a person who wants to correct FECA-
related documents?
Rights and Penalties
10.15 May compensation rights be waived?
10.16 What are the criminal law penalties for making a false report
in connection with a claim under the FECA?
10.17 Is a beneficiary who defrauds the government in connection
with a claim for benefits still entitled to those benefits?
10.18 Can a beneficiary who is incarcerated based on a felony
conviction still receive benefits?
Subpart B--Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease and Death--Employee or
Survivor's Actions
10.100 How and when is a notice of traumatic injury filed?
10.101 How and when is a claim for wage loss compensation on
account of traumatic injury filed?
10.102 How and when is a notice of occupational disease filed?
10.103 How and when is a claim for wage loss compensation on
account of occupational disease filed?
10.104 How and when is a claim for permanent impairment filed?
10.105 How and when is a claim for recurrence filed?
10.106 How and when is a notice of death and claim for benefits
filed?
Notices and Claims for Injury, Disease and Death--Employer's
Actions
10.110 What should the employer do when an employee files a notice
of traumatic injury or occupational disease?
10.111 What should the employer do when an employee files an
initial claim for compensation due to disability or permanent
impairment?
10.112 What should the employer do when an employee files a claim
for continuing compensation due to disability?
10.113 What should the employer do when an employee dies from a
work-related injury or disease?
Evidence and Burden of Proof
10.115 What evidence is needed to establish a claim?
10.116 What additional evidence is needed in cases based on
occupational disease?
10.117 What happens if the employer contests any of the facts as
stated by the claimant?
10.118 Does the employer participate in the claims process in any
other way?
10.119 What action will OWCP take with respect to information
submitted by the employer?
10.120 May a claimant submit additional evidence?
10.121 What happens if OWCP needs more evidence from the claimant?
Decisions on Entitlement to Benefits
10.125 How does OWCP determine entitlement to benefits?
10.126 What does the decision contain?
10.127 To whom is the decision sent?
Subpart C--Continuation of Pay
10.200 What is continuation of pay?
Eligibility for COP
10.205 What other conditions must be met to receive COP?
10.206 May an employee who uses leave after an injury later decide
to use COP instead?
10.207 May an employee who returns to work, then stops work again
due to the effects of the injury, receive COP?
Responsibilities
10.210 What are the employee's responsibilities in COP cases?
10.211 What are the employer's responsibilities in COP cases?
Calculation of COP
10.215 How does OWCP compute the number of days of COP used?
10.216 How is the pay rate for COP calculated?
10.217 Is COP charged if the employee continues to work, but in a
different job that pays less?
Controversion and Termination of COP
10.220 When is an employer not required to pay COP?
10.221 How is a claim for COP controverted?
10.222 When may an employer terminate COP which has already begun?
10.223 Are there other circumstances under which OWCP will not
authorize payment of COP?
10.224 What happens if OWCP finds that the employee is not entitled
to COP after it has been paid?
Subpart D--Medical and Related Benefits
Emergency Medical Care
10.300 What are the basic rules for authorizing emergency medical
care?
10.301 May the physician designated on Form CA-16 refer the
employee to another medical specialist or medical facility?
10.302 Should the employer authorize medical care if he or she
doubts that the injury occurred, or that it is work-related?
10.303 Should the employer use a Form CA-16 to authorize medical
testing when an employee is exposed to a workplace hazard just once?
10.304 Are there any exceptions to these procedures?
Medical Treatment and Related Issues
10.310 What are the basic rules for obtaining medical care?
10.311 What are the special rules for the services of
chiropractors?
10.312 What are the special rules for the services of clinical
psychologists?
10.313 Will OWCP pay for preventive treatment?
10.314 Will OWCP pay for the services of an attendant?
10.315 Will OWCP pay for transportation to obtain medical
treatment?
10.316 After selecting a treating physician, may an employee choose
to be treated by another physician instead?
Directed Medical Examinations
10.320 Can OWCP require an employee to be examined by another
doctor?
10.321 What happens if the physician selected by OWCP does not
agree with the physician selected by the employee?
10.322 Who pays for second opinion and referee examinations?
10.323 What are the consequences of failing to report for or
obstructing a second opinion or referee examination?
10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
Medical Reports
10.330 What are the requirements for medical reports?
10.331 How and when should the medical report be submitted?
10.332 What additional medical information will OWCP require to
support continuing payment of benefits?
10.333 What additional medical information will OWCP require to
support a claim for a schedule award?
Medical Bills
10.335 How are medical bills submitted?
10.336 What are the time frames for submitting bills?
10.337 If OWCP reimburses an employee only partially for a medical
expense, must the provider refund the balance of the amount paid to
the employee?
Subpart E--Compensation and Related Benefits
Compensation for Disability and Impairment
10.400 What is total disability?
10.401 When and how is compensation for total disability paid?
10.402 What is partial disability?
10.403 When and how is compensation for partial disability paid?
10.404 When and how is compensation for a schedule impairment paid?
10.405 Who is considered a dependent in a claim based on disability
or impairment?
10.406 What are the maximum and minimum rates of compensation in
disability cases?
[[Page 67136]]
Compensation for Death
10.410 What are the rates of compensation payable in death cases?
10.411 What are the maximum and minimum rates of compensation in
death cases?
10.412 Will OWCP pay the costs of burial and transportation of the
remains?
10.413 If a person dies while receiving a schedule award, to whom
is the balance of the schedule award payable?
10.414 What reports of dependents are needed in death cases?
10.415 What must a beneficiary do if the number of beneficiaries
decreases?
10.416 How does a change in the number of beneficiaries affect the
amount of compensation paid to the other beneficiaries?
10.417 What reports are needed when compensation payments continue
for children over age 18?
Adjustments to Compensation
10.420 How are cost-of-living adjustments applied?
10.421 May a beneficiary receive other kinds of payments from the
federal government concurrently with compensation?
10.422 May compensation payments be issued in a lump sum?
10.423 May compensation payments be assigned to, or attached by,
creditors?
10.424 May someone other than the beneficiary be designated to
receive compensation payments?
Overpayments
10.430 How does OWCP notify an individual of a payment made?
10.431 What does OWCP do when an overpayment is identified?
10.432 How can an individual present evidence to OWCP in response
to a preliminary notice of an overpayment?
10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
10.434 If OWCP finds that the recipient of an overpayment was not
at fault, what criteria are used to decide whether to waive recovery
of it?
10.435 Is an individual responsible for an overpayment that
resulted from an error by OWCP or another government agency?
10.436 Under what circumstances would recovery of an overpayment
defeat the purpose of the FECA?
10.437 Under what circumstances would recovery of an overpayment be
against equity and good conscience?
10.438 Can OWCP require the individual who received the overpayment
to submit additional financial information?
10.439 May other issues be addressed at the pre-recoupment hearing?
10.440 How does OWCP communicate its final decision concerning
recovery of an overpayment, and what appeal right accompanies it?
10.441 How are overpayments collected?
Subpart F--Continuing Entitlement to Benefits
10.500 What are the basic rules governing continuing receipt of
compensation benefits?
Return to Work--Employer's Responsibilities
10.505 What actions must the employer take?
10.506 May the employer monitor the employee's medical care?
10.507 How should the employer make an offer of suitable work?
10.508 May relocation expenses be paid for an employee who would
need to move to accept an offer of reemployment?
10.509 If an employee's light-duty job is eliminated due to
downsizing, what is the effect on compensation?
Return to Work--Employee's Responsibilities
10.515 What actions must the employee take?
10.516 How will an employee know if OWCP considers a job to be
suitable?
10.517 What are the penalties for refusing to accept a suitable job
offer?
10.518 Does OWCP provide services to help employees return to work?
10.519 What action will OWCP take if an employee refuses to undergo
vocational rehabilitation?
10.520 How does OWCP determine compensation after an employee
completes a vocational rehabilitation program?
Reports of Earnings From Employment and Self-Employment
10.525 What information must the employee report?
10.526 Must the employee report self-employment?
10.527 Does OWCP verify reports of earnings?
10.528 What action will OWCP take if the employee fails to file a
report of activity indicating an ability to work?
10.529 What action will OWCP take if the employee files an
incomplete report?
Reports of Dependents
10.535 How are dependents defined, and what information must the
employee report?
10.536 What is the penalty for failing to submit a report of
dependents?
10.537 What reports are needed when compensation payments continue
for children over age 18?
Reduction and Termination of Compensation
10.540 When and how is compensation reduced or terminated?
10.541 What action will OWCP take after issuing written notice of
its intention to reduce or terminate compensation?
Subpart G--Appeals Process
10.600 How can final decisions of OWCP be reviewed?
Reconsiderations and Reviews by the Director
10.605 What is reconsideration?
10.606 How does a claimant request reconsideration?
10.607 What is the deadline for requesting reconsideration?
10.608 How does OWCP decide whether to grant or deny the request
for reconsideration?
10.609 How does OWCP decide whether new evidence requires
modification of the prior decision?
10.610 What is a review by the Director?
Hearings
10.615 What is a hearing?
10.616 How does a claimant obtain a hearing?
10.617 How is an oral hearing conducted?
10.618 How is a review of the written record conducted?
10.619 May subpoenas be issued for witnesses and documents?
10.620 Who pays the costs associated with subpoenas?
10.621 What is the employer's role when an oral hearing has been
requested?
10.622 May a claimant withdraw a request for or postpone a hearing?
Reviews by the Employees' Compensation Appeals Board (ECAB)
10.625 What kinds of decisions may be appealed?
10.626 Who has jurisdiction of cases on appeal to the ECAB?
Subpart H--Special Provisions
Representation
10.700 May a claimant designate a representative?
10.701 Who may serve as a representative?
10.702 How are fees for services paid?
10.703 How are fee applications approved?
Third Party Liability
10.705 When must an employee or other FECA beneficiary take action
against a third party?
10.706 How will a beneficiary know if OWCP or SOL has determined
that action against a third party is required?
10.707 What must a FECA beneficiary who is required to take action
against a third party do to satisfy the requirement that the claim
be ``prosecuted''?
10.708 Can a FECA beneficiary who refuses to comply with a request
to assign a claim to the United States or to prosecute the claim in
his or her own name be penalized?
10.709 What happens if a beneficiary directed by OWCP or SOL to
take action against a third party does not believe that a claim can
be successfully prosecuted at a reasonable cost?
10.710 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which benefits
are payable under the FECA be reported to OWCP or SOL?
10.711 How much of any settlement or judgment must be paid to the
United States?
10.712 What amounts are included in the gross recovery?
[[Page 67137]]
10.713 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time)
treated for purposes of reporting the gross recovery?
10.714 What amounts are included in the refundable disbursements?
10.715 Is a beneficiary required to pay interest on the amount of
the refund due to the United States?
10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under
the FECA?
10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by
the FECA a gross recovery that must be reported to OWCP or SOL?
10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that
must be reported to OWCP or SOL?
10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on
a single FECA claim be attributed to different conditions for
purposes of calculating the refund or credit owed to the United
States?
Federal Grand and Petit Jurors
10.725 When is a federal grand or petit juror covered under the
FECA?
10.726 When does a juror's entitlement to disability compensation
begin?
10.727 What is the pay rate of jurors for compensation purposes?
Peace Corps Volunteers
10.730 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the
United States?
10.731 What is the pay rate of Peace Corps volunteers and volunteer
leaders for compensation purposes?
Non-Federal Law Enforcement Officers
10.735 When is a non-federal law enforcement officer covered under
the FECA?
10.736 What are the time limits for filing a claim?
10.737 How is a claim filed, and who can file a claim?
10.738 Under what circumstances are benefits payable?
10.739 What kind of objective evidence of a potential federal crime
must exist for coverage to be extended?
10.740 In what situations will OWCP automatically presume that a
law enforcement officer is covered by the FECA?
10.741 How are benefits calculated?
Subpart I--Information for Medical Providers
Medical Records and Bills
10.800 What kind of medical records must providers keep?
10.801 How are medical bills to be submitted?
10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
10.803 What are the time limitations on OWCP's payment of bills?
Medical Fee Schedule
10.805 What services are covered by the OWCP fee schedule?
10.806 How are the maximum fees defined?
10.807 How are payments for particular services calculated?
10.808 Does the fee schedule apply to every kind of procedure?
10.809 How are payments for medicinal drugs determined?
10.810 How are payments for inpatient medical services determined?
10.811 When and how are fees reduced?
10.812 If OWCP reduces a fee, may a provider request
reconsideration of the reduction?
10.813 If OWCP reduces a fee, may a provider bill the claimant for
the balance?
Exclusion of Providers
10.815 What are the grounds for excluding a provider from payment
under the FECA?
10.816 What will cause OWCP to automatically exclude a physician or
other provider of medical services and supplies?
10.817 When are OWCP's exclusion procedures initiated?
10.818 How is a provider notified of OWCP's intent to exclude him
or her?
10.819 What requirements must the provider's reply and OWCP's
decision meet?
10.820 How can an excluded provider request a hearing?
10.821 How are hearings assigned and scheduled?
10.822 How are subpoenas or advisory opinions obtained?
10.823 How will the administrative law judge conduct the hearing
and issue the recommended decision?
10.824 How can a party request review by the Director of the
administrative law judge's recommended decision?
10.825 What are the effects of exclusion?
10.826 How can an excluded provider be reinstated?
Authority: 5 U.S.C. 301, 8103, 8145 and 8149; 31 U.S.C. 3716 and
3717; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263;
Secretary's Order 5-96, 62 FR 107.
Subpart A--General Provisions
Introduction
Sec. 10.0 What are the provisions of the FECA, in general?
The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C.
8101 et seq.) provides for the payment of workers' compensation
benefits to civilian officers and employees of all branches of the
Government of the United States. The regulations in this part describe
the rules for filing, processing, and paying claims for benefits under
the FECA.
(a) The FECA has been amended and extended a number of times to
provide workers' compensation benefits to volunteers in the Civil Air
Patrol (5 U.S.C. 8141), members of the Reserve Officers' Training Corps
(5 U.S.C. 8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps
enrollees and Volunteers In Service to America (5 U.S.C. 8143), members
of the National Teachers Corps (5 U.S.C. 8143a), certain student
employees (5 U.S.C. 5351 and 8144), certain law enforcement officers
not employed by the United States (5 U.S.C. 8191-8193), and various
other classes of persons who provide or have provided services to the
Government of the United States.
(b) The FECA provides for payment of several types of benefits,
including compensation for wage loss, schedule awards, medical and
related benefits, and vocational rehabilitation services for conditions
resulting from injuries sustained in performance of duty while in
service to the United States.
(c) The FECA also provides for payment of monetary compensation to
specified survivors of an employee whose death resulted from a work-
related injury and for payment of certain burial expenses subject to
the provisions of 5 U.S.C. 8134.
(d) All types of benefits and conditions of eligibility listed in
this section are subject to the provisions of the FECA and of this
part. This section shall not be construed to modify or enlarge upon the
provisions of the FECA.
Sec. 10.1 What rules govern the administration of the FECA and this
chapter?
In accordance with 5 U.S.C. 8145 and Secretary's Order 5-96, the
responsibility for administering the FECA, except for 5 U.S.C. 8149 as
it pertains to the Employees' Compensation Appeals Board, has been
delegated to the Assistant Secretary for Employment Standards. The
Assistant Secretary, in turn, delegated the authority and
responsibility for administering the FECA to the Director of the Office
of Workers' Compensation Programs (OWCP). Except as otherwise provided
by law, the Director, OWCP and his or her designees have the exclusive
authority to administer, interpret and enforce the provisions of the
Act.
[[Page 67138]]
Sec. 10.2 What do these regulations contain?
Part 10 of this chapter sets forth the regulations governing
administration of all claims filed under the FECA, except to the extent
specified in certain particular provisions. Its provisions are intended
to assist persons seeking compensation benefits under the FECA, as well
as personnel in the various federal agencies and the Department of
Labor who process claims filed under the FECA or who perform
administrative functions with respect to the FECA. Part 10 applies to
part 25 of this chapter except as modified by part 25. The various
subparts of this part contain the following:
(a) Subpart A: The general statutory and administrative framework
for processing claims under the FECA. It contains a statement of
purpose and scope, together with definitions of terms, descriptions of
basic forms, information about the disclosure of OWCP records, and a
description of rights and penalties under the FECA, including
convictions for fraud.
(b) Subpart B: The rules for filing notices of injury and claims
for benefits under the FECA. It also addresses evidence and burden of
proof, as well as the process of making decisions concerning
eligibility for benefits.
(c) Subpart C: The rules governing claims for and payment of
continuation of pay.
(d) Subpart D: The rules governing emergency and routine medical
care, second opinion and referee medical examinations directed by OWCP,
and medical reports and records in general. It also addresses the kinds
of treatment which may be authorized and how medical bills are paid.
(e) Subpart E: The rules relating to the payment of monetary
compensation benefits for disability, impairment and death. It includes
the provisions for identifying and processing overpayments of
compensation.
(f) Subpart F: The rules governing the payment of continuing
compensation benefits. It includes provisions concerning the employee's
and the employer's responsibilities in returning the employee to work.
It also contains provisions governing reports of earnings and
dependents, recurrences, and reduction and termination of compensation
benefits.
(g) Subpart G: The rules governing the appeals of decisions under
the FECA. It includes provisions relating to hearings,
reconsiderations, and appeals before the Employees' Compensation
Appeals Board.
(h) Subpart H: The rules concerning legal representation and for
adjustment and recovery from a third party. It also contains provisions
relevant to three groups of employees whose status requires special
application of the provisions of the FECA: federal grand and petit
jurors, Peace Corps volunteers, and non-federal law enforcement
officers.
(i) Subpart I: Information for medical providers. It includes rules
for medical reports, medical bills, and the OWCP medical fee schedule,
as well as the provisions for exclusion of medical providers.
Sec. 10.3 Have the collection of information requirements of this part
been approved by OMB?
The collection of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB
control numbers 1215-0055, 1215-0067, 1215-0103, 1215-0115, 1215-0154,
1215-0155, 1215-0167, 1215-0176 and 1215-0182.
Definitions and Forms
Sec. 10.5 What definitions apply to these regulations?
Certain words and phrases found in this part are defined in this
section or in the FECA statute. Some other words and phrases that are
used only in limited situations are defined in the later subparts of
these regulations.
(a) Benefits or Compensation means the money OWCP pays to or on
behalf of a beneficiary from the Employees' Compensation Fund for lost
wages, a loss of wage-earning capacity or a permanent physical
impairment, as well as the money paid to beneficiaries for an
employee's death. These two terms also include any other amounts paid
out of the Employees' Compensation Fund for such things as medical
treatment, medical examinations conducted at the request of OWCP as
part of the claims adjudication process, vocational rehabilitation
services, services of an attendant and funeral expenses, but does not
include continuation of pay.
(b) Beneficiary means an individual who is entitled to a benefit
under the FECA and this part.
(c) Claim means a written assertion of an individual's entitlement
to benefits under the FECA, submitted in a manner authorized by this
part.
(d) Claimant means an individual whose claim has been filed.
(e) Director means the Director of OWCP or a person designated to
carry out his or her functions.
(f) Disability means the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.
(g) Earnings from employment or self-employment means:
(1) Gross earnings or wages before any deductions and includes the
value of subsistence, quarters, reimbursed expenses and any other goods
or services received in kind as remuneration; or
(2) A reasonable estimate of the cost to have someone else perform
the duties of an individual who accepts no remuneration. Neither lack
of profits, nor the characterization of the duties as a hobby, removes
an unremunerated individual's responsibility to report the estimated
cost to have someone else perform his or her duties.
(h) Employee means, but is not limited to, an individual who fits
within one of the following listed groups:
(1) A civil officer or employee in any branch of the Government of
the United States, including an officer or employee of an
instrumentality wholly owned by the United States;
(2) An individual rendering personal service to the United States
similar to the service of a civil officer or employee of the United
States, without pay or for nominal pay, when a statute authorizes the
acceptance or use of the service, or authorizes payment of travel or
other expenses of the individual;
(3) An individual, other than an independent contractor or an
individual employed by an independent contractor, employed on the
Menominee Indian Reservation in Wisconsin in operations conducted under
a statute relating to tribal timber and logging operations on that
reservation;
(4) An individual appointed to a position on the office staff of a
former President; or
(5) An individual selected and serving as a federal petit or grand
juror.
(i) Employer or Agency means any civil agency or instrumentality of
the United States Government, or any other organization, group or
institution employing an individual defined as an ``employee'' by this
section. These terms also refer to officers and employees of an
employer having responsibility for the supervision, direction or
control of employees of that employer as an ``immediate superior,'' and
to other employees designated by the employer to carry out the
functions vested in the employer under the FECA and this part,
including officers or employees delegated responsibility by an employer
for authorizing medical treatment for injured employees.
(j) Entitlement means entitlement to benefits as determined by OWCP
under the FECA and the procedures described in this part.
[[Page 67139]]
(k) FECA means the Federal Employees' Compensation Act, as amended.
(l) Hospital services means services and supplies provided by
hospitals within the scope of their practice as defined by State law.
(m) Impairment means any anatomic or functional abnormality or
loss. A permanent impairment is any such abnormality or loss after
maximum medical improvement has been achieved.
(n) Knowingly means with knowledge, consciously, willfully or
intentionally.
(o) Medical services means services and supplies provided by or
under the supervision of a physician. Reimbursable chiropractic
services are limited to physical examinations (and related laboratory
tests), x-rays performed to diagnose a subluxation of the spine and
treatment consisting of manual manipulation of the spine to correct a
subluxation.
(p) Medical support services means services, drugs, supplies and
appliances provided by a person other than a physician or hospital.
(q) Occupational disease or illness means a condition produced by
the work environment over a period longer than a single workday or
shift.
(r) OWCP means the Office of Workers' Compensation Programs.
(s) Pay rate for compensation purposes means the employee's pay, as
determined under 5 U.S.C. 8114, at the time of injury, the time
disability begins or the time compensable disability recurs if the
recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever
is greater, except as otherwise determined under 5 U.S.C. 8113 with
respect to any period.
(t) Physician means an individual defined as such in 5 U.S.C.
8101(2), except during the period for which his or her license to
practice medicine has been suspended or revoked by a State licensing or
regulatory authority.
(u) Qualified hospital means any hospital licensed as such under
State law which has not been excluded under the provisions of subpart I
of this part. Except as otherwise provided by regulation, a qualified
hospital shall be deemed to be designated or approved by OWCP.
(v) Qualified physician means any physician who has not been
excluded under the provisions of subpart I of this part. Except as
otherwise provided by regulation, a qualified physician shall be deemed
to be designated or approved by OWCP.
(w) Qualified provider of medical support services or supplies
means any person, other than a physician or a hospital, who provides
services, drugs, supplies and appliances for which OWCP makes payment,
who possesses any applicable licenses required under State law and who
has not been excluded under the provisions of subpart I of this part.
(x) Recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous and material
change in a medical condition which had resulted from a previous injury
or illness without an intervening injury or new exposure to the work
environment that caused the illness. This term also means an inability
to work that takes place when a light-duty assignment made specifically
to accommodate an employee's physical restrictions due to his or her
work-related injury or illness is withdrawn (except when such
withdrawal occurs for reasons of misconduct, non-performance of job
duties or a reduction-in-force), or when the physical requirements of
such an assignment are altered so that they exceed his or her
established physical restrictions.
(y) Representative means an individual properly authorized by a
claimant in writing to act for the claimant in connection with a claim
or proceeding under the FECA or this part.
(z) Student means an individual defined at 5 U.S.C. 8101(17). Two
terms used in that particular definition are further defined as
follows:
(1) ``Additional type of educational or training institution''
means a technical, trade, vocational, business or professional school
accredited or licensed by the United States Government or a state
government or any political subdivision thereof providing courses of
not less than three months' duration, that prepares the individual for
a livelihood in a trade, industry, vocation or profession.
(2) ``Year beyond the high school level'' means:
(i) The 12-month period beginning the month after the individual
graduates from high school, provided he or she had indicated an
intention to continue schooling within four months of high school
graduation, and each successive 12-month period in which there is
school attendance or the payment of compensation based on student
attendance; or
(ii) If the individual has indicated that he or she will not
continue schooling within four months of high school graduation, the
12-month period beginning with the month that the individual enters
school to continue his or her education, and each successive 12-month
period in which there is school attendance or the payment of
compensation based on student status.
(aa) Subluxation means an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must
be demonstrable on any x-ray film to an individual trained in the
reading of x-rays.
(bb) Surviving spouse means the husband or wife living with or
dependent for support upon a deceased employee at the time of his or
her death, or living apart for reasonable cause or because of the
deceased employee's desertion.
(cc) Temporary aggravation of a pre-existing condition means that
factors of employment have directly caused that condition to be more
severe for a limited period of time and have left no greater impairment
than existed prior to the employment injury.
(dd) Traumatic injury means a condition of the body caused by a
specific event or incident or series of events or incidents within a
single workday or shift. Such condition must be caused by external
force, including stress or strain, which is identifiable as to time and
place of occurrence and member or function of the body affected.
Sec. 10.6 What special statutory definitions apply to dependents and
survivors?
(a) 5 U.S.C. 8133 provides that certain benefits are payable to
certain enumerated survivors of employees who have died from an injury
sustained in the performance of duty.
(b) 5 U.S.C. 8148 also provides that certain other benefits are
payable to certain family members of employees who have been
incarcerated due to a felony conviction.
(c) 5 U.S.C. 8110(b) further provides that any employee who is
found to be eligible for a basic benefit shall be entitled to have such
basic benefit augmented at a specified rate for certain persons who
live in the beneficiary's household or who are dependent upon the
beneficiary for support.
(d) 5 U.S.C. 8101, 8110, 8133 and 8148, which define the nature of
such survivorship or dependency necessary to qualify a beneficiary for
a survivor's benefit or an augmented benefit, apply to the provisions
of this part.
Sec. 10.7 What forms are needed to process claims under the FECA?
(a) Notice of injury, claims and certain specified reports shall be
made on forms prescribed by OWCP. Employers are expected to maintain an
adequate
[[Page 67140]]
supply of the basic forms needed for the proper recording and reporting
of injuries.
------------------------------------------------------------------------
Form No. Title
------------------------------------------------------------------------
(1) CA-1................. Federal Employee's Notice of Traumatic Injury
and Claim for Continuation of Pay/
Compensation.
(2) CA-2................. Notice of Occupational Disease and Claim for
Compensation.
(3) CA-2a................ Notice of Employee's Recurrence of Disability
and Claim for Pay/Compensation.
(4) CA-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 or 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.
------------------------------------------------------------------------
(b) Copies of the forms listed in this paragraph are available for
public inspection at the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor,
Washington, DC 20210. They may also be obtained from district offices,
employers (i.e., safety and health offices, supervisors), and the
Internet.
Information in Program Records
Sec. 10.10 Are all documents relating to claims filed under the FECA
considered confidential?
All records relating to claims for benefits, including copies of
such records maintained by an employer, are considered confidential and
may not be released, inspected, copied or otherwise disclosed except as
provided in the Freedom of Information Act and the Privacy Act of 1974.
All FECA-related records are covered by the government-wide Privacy Act
system of records entitled DOL/GOVT-1 (Office of Workers' Compensation
Programs, Federal Employees' Compensation Act File). The routine uses
to which such records may be put are set forth in the Notice published
in the Federal Register by the Department of Labor. The regulations and
routine uses promulgated by the Department of Labor control decisions
regarding access to all FECA-related records.
Sec. 10.11 Who maintains custody and control of FECA records?
All documents covered by DOL/GOVT-1 are official records of OWCP
and, as such, are maintained by and under the control of OWCP. While an
employer may establish procedures an injured employee or FECA
beneficiary should follow in requesting access to documents it
maintains, any decision issued in response to such a request must
comply with the rules and regulations of the Department of Labor.
Sec. 10.12 How may a FECA claimant or beneficiary obtain copies of
protected records?
(a) A claimant seeking copies of his or her official FECA file
should address a request to the District Director of the OWCP office
having custody of the file. A claimant seeking copies of FECA-related
documents in the custody of the employer should follow the procedures
established by that agency. In responding to a claimant's request, the
employer must comply with the rules and regulations of the Department
of Labor which govern all aspects of safeguarding the records.
(b) Any appeal from a decision denying access to the FECA-related
documents must be filed with the Solicitor of Labor as provided in 29
CFR part 71.
Sec. 10.13 What process is used by a person who wants to correct FECA-
related documents?
Any request to amend a record covered by DOL/GOVT-1 should be
directed to the district office having custody of the official file. No
employer has the authority to issue determinations with regard to
requests for the correction of records contained in or covered by DOL/
GOVT-1. Any request for correction received by an employer must be
referred to OWCP for review and decision.
Rights and Penalties
Sec. 10.15 May compensation rights be waived?
No employer or other person may require an employee or other
claimant to enter into any agreement, either before or after an injury
or death, to waive his or her right to claim compensation under the
FECA. No waiver of compensation rights shall be valid.
Sec. 10.16 What are the criminal law penalties for making a false
report in connection with a claim under the FECA?
(a) A number of statutory provisions make it a crime to file a
false or fraudulent claim or statement with the government in
connection with a claim under the FECA. Included among these provisions
are sections 287, 1001, 1920, and 1922 of title 18, United States Code.
Enforcement of these and other criminal provisions that may apply to
claims under the FECA are within the jurisdiction of the Department of
Justice.
(b) In addition, administrative proceedings may be initiated under
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-
12, to impose civil penalties and assessments against persons who make,
submit, or present, or cause to be made, submitted or presented, false,
fictitious or fraudulent claims or written statements to OWCP in
connection with a claim under the FECA. The Department of Labor's
regulations implementing the PFRCA are found at 29 CFR part 22.
Sec. 10.17 Is a beneficiary who defrauds the government in connection
with a claim for benefits still entitled to those benefits?
When a beneficiary either pleads guilty to or is found guilty on
charges of defrauding the federal government in connection with a claim
for benefits, the beneficiary's entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is
accepted or a verdict of guilty is returned after trial, for any injury
occurring on or before the date of such guilty plea or verdict.
Termination of entitlement under this section is not affected by any
subsequent change in or recurrence of the beneficiary's medical
condition.
[[Page 67141]]
Sec. 10.18 Can a beneficiary who is incarcerated based on a felony
conviction still receive benefits?
(a) Whenever a beneficiary is incarcerated in a state or federal
jail, prison, penal institution or other correctional facility due to a
state or federal felony conviction, he or she forfeits all rights to
compensation benefits during the period of incarceration. A
beneficiary's right to compensation benefits for the period of his or
her incarceration is not restored after such incarceration ends, even
though payment of compensation benefits may resume.
(b) If the beneficiary has eligible dependents, OWCP will pay
compensation to such dependents at a reduced rate during the period of
his or her incarceration, by applying the percentages of 5 U.S.C.
8133(a)(1) through (5) to the beneficiary's gross current entitlement.
(c) If OWCP's decision on entitlement is pending when the period of
incarceration begins, and compensation is due for a period of time
prior to such incarceration, payment for that period will only be made
to the beneficiary following his or her release.
Subpart B--Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease, and Death--Employee or
Survivor's Actions
Sec. 10.100 How and when is a notice of traumatic injury filed?
(a) To claim benefits under the FECA, an employee who sustains a
work-related traumatic injury must give notice of the injury in writing
on Form CA-1, which may be obtained from the employer. The employee
must forward this notice to the employer. Another person, including the
employer, may give notice of injury on the employee's behalf. The
person submitting a notice shall include the Social Security Number
(SSN) of the injured employee.
(b) For injuries sustained on or after September 7, 1974, a notice
of injury must be filed within three years of the injury. (The form
contains the necessary words of claim.) The requirements for filing
notice are further described in 5 U.S.C. 8119. Also see Sec. 10.205
concerning time requirements for filing claims for continuation of pay.
(1) If the claim is not filed within three years, compensation may
still be allowed if notice of injury was given within 30 days or the
employer had actual knowledge of the injury or death within 30 days
after occurrence. This knowledge may consist of written records or
verbal notification. An entry into an employee's medical record may
also satisfy this requirement if it is sufficient to place the employer
on notice of a possible work-related injury or disease.
(2) OWCP may excuse failure to comply with the three-year time
requirement because of truly exceptional circumstances (for example,
being held prisoner of war).
(3) The claimant may withdraw his or her claim (but not the notice
of injury) by so requesting in writing to OWCP at any time before OWCP
determines eligibility for benefits.
Sec. 10.101 How and when is a claim for wage loss compensation on
account of traumatic injury filed?
(a) Form CA-7 is used to claim compensation for initial periods of
disability.
(1) An employee who is disabled with loss of pay for more than
three calendar days due to an injury, or someone acting on his or her
behalf, must file Form CA-7 before compensation can be paid.
(2) The employee shall complete the front of Form CA-7 and submit
the form to the employer for completion and transmission to OWCP. The
form should be completed as soon as possible, but no more than 14
calendar days after the date pay stops due to the injury or disease.
(3) The requirements for filing claims are further described in 5
U.S.C. 8121.
(b) Form CA-8 is used to claim compensation for additional periods
of disability after Form CA-7 is submitted to OWCP.
(1) It is the employee's responsibility to submit Form CA-8.
Without receipt of such claim, OWCP has no knowledge of continuing wage
loss. Therefore, while disability continues, the employee should submit
a claim on Form CA-8 each two weeks until otherwise instructed by OWCP.
(2) The employee shall complete the front of Form CA-8 and submit
the form to the employer for completion and transmission to OWCP.
(3) The employee is responsible for submitting, or arranging for
the submittal of, medical evidence which establishes both that
disability continues and that the disability is due to the work-related
injury. Form CA-20a is attached to Form CA-8 for this purpose.
Sec. 10.102 How and when is a notice of occupational disease filed?
(a) To claim benefits under the FECA, an employee who has a disease
which he or she believes to be work-related must give notice of the
condition in writing on Form CA-2, which may be obtained from the
employer. The employee must forward this notice to the employer.
Another person, including the employer, may do so on the employee's
behalf. The person submitting a notice shall include the Social
Security Number (SSN) of the injured employee. The claimant may
withdraw his or her claim (but not the Notice of Injury) by so
requesting in writing to OWCP at any time before OWCP determines
eligibility for benefits.
(b) For occupational diseases sustained as a result of exposure to
injurious work factors that occurs on or after September 7, 1974, a
notice of occupational disease must be filed within three years of the
onset of the condition. (The form contains the necessary words of
claim.) The requirements for timely filing are described in
Sec. 10.100(b)(1) through (3).
(c) However, in cases of latent disability, the time for filing
claim does not begin to run until the employee has a compensable
disability and is aware, or reasonably should have been aware, of the
causal relationship between the disability and the employment (see 5
U.S.C. 8122(b)).
Sec. 10.103 How and when is a claim for wage loss compensation on
account of occupational disease filed?
Compensation for the initial period of disability, additional
periods of disability, and impairment of a body part is claimed as
described in Secs. 10.101 and 10.104.
Sec. 10.104 How and when is a claim for permanent impairment filed?
Form CA-7 is used to claim compensation for impairment to a body
part covered under the schedule established by 5 U.S.C. 8107. If Form
CA-7 has already been filed to claim disability compensation, an
employee may file a claim for impairment compensated according to the
schedule by sending a letter to OWCP which specifies the nature of the
benefit claimed.
Sec. 10.105 How and when is a claim for recurrence filed?
(a) A recurrence should be reported on Form CA-2a if it causes the
employee to lose time from work and incur a wage loss. However, a
notice of recurrence should not be filed for time loss due to traumatic
injury during the period covered by continuation of pay. Also, a notice
of recurrence should not be filed when a new injury or event
contributing to an occupational disease has occurred. In these
instances, the employee should file Form CA-1 or CA-2.
[[Page 67142]]
(b) The employee has the burden of establishing by the weight of
reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury.
(1) The employee must include a statement with Form CA-2a
describing his or her duties upon return to work after the original
injury, stating whether there were any other injuries or illness, and
giving a general description of his or her physical condition during
the intervening period. The employer may submit comments concerning the
employee's statement.
(2) The employee should arrange for the submittal of a detailed
medical report from the attending physician as described on Form CA-2a.
The employee should also submit, or arrange for the submittal of,
similar medical reports for any examination and/or treatment received
after returning to work following the original injury.
Sec. 10.106 How and when is a notice of death and claim for benefits
filed?
(a) If an employee dies from a work-related traumatic injury or an
occupational disease, any survivor may file a claim for death benefits
using Form CA-5 or CA-5b, which may be obtained from the employer. The
survivor must provide this notice in writing and forward it to the
employer. Another person, including the employer, may do so on the
survivor's behalf. The claimant may also submit the completed Form CA-5
or CA-5b directly to OWCP. The claimant shall disclose the SSNs of the
survivors in addition to the SSN of the deceased employee. The claimant
may withdraw his or her claim (but not the notice of death) by so
requesting in writing to OWCP at any time before OWCP determines
eligibility for benefits.
(b) For deaths that occur on or after September 7, 1974, a notice
of death must be filed within three years of the death. The form
contains the necessary words of claim. The requirements for timely
filing are described in Sec. 10.100(b) (1) through (3).
(c) However, in cases of death due to latent disability, the time
for filing the claim does not begin to run until the claimant is aware,
or reasonably should have been aware, of the causal relationship
between the death and the employment (see 5 U.S.C. 8122(b)).
(d) The filing of a notice of injury will satisfy the time
requirements for a death claim based on the same injury. If an injured
employee or someone acting on the employee's behalf does not file a
claim before the employee's death, the right to claim compensation for
disability other than medical expenses ceases and does not survive.
(e) A survivor must be alive to receive any payment; there is no
vested right to such payment. A report as described in Sec. 10.414 of
this part must be filed once each year to support continuing payments
of compensation.
Notices and Claims for Injury, Disease, and Death--Employer's Actions
Sec. 10.110 What should the employer do when an employee files a
notice of traumatic injury or occupational disease?
(a) The employer shall complete the agency portion of Form CA-1
(for traumatic injury) or CA-2 (for occupational disease) no more than
five calendar days after receipt of notice from the employee. The
employer shall also complete the Receipt of Notice and give it to the
employee.
(b) The employer must transmit the form to OWCP within five
calendar days if the injury or disease will likely result in:
(1) A medical charge against OWCP;
(2) Disability for work beyond the day or shift of injury;
(3) The need for more than two appointments for medical examination
and/or treatment on separate days, leading to time loss from work;
(4) Future disability;
(5) Permanent impairment; or
(6) Continuation of pay pursuant to 5 U.S.C. 8118.
(c) The employer should not wait for submittal of supporting
evidence before sending the form to OWCP.
(d) If none of the conditions in paragraph (b) of this section
applies, the Form CA-1 or CA-2 shall be retained as a permanent record
in the Employee Medical Folder in accordance with the guidelines
established by the Office of Personnel Management.
Sec. 10.111 What should the employer do when an employee files an
initial claim for compensation due to disability or permanent
impairment?
(a) When an employee is disabled by a work-related injury and loses
pay for more than three calendar days, or has a permanent impairment or
serious disfigurement as described in 5 U.S.C. 8107, the employer shall
furnish the employee with Form CA-7 for the purpose of claiming
compensation.
(b) If the employee is receiving continuation of pay (COP), the
employer should give Form CA-7 to the employee by the 30th day of the
COP period and submit the form to OWCP by the 40th day of the COP
period. If the employee has not returned the form to the employer by
the 40th day of the COP period, the employer should ask him or her to
submit it as soon as possible.
(c) Upon receipt of Form CA-7 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five
working days after receipt from the employee, the employer shall
forward the completed Form CA-7 and any accompanying medical report to
OWCP.
Sec. 10.112 What should the employer do when an employee files a claim
for continuing compensation due to disability?
(a) If the employee continues in a leave-without-pay status due to
a work-related injury after the period of compensation initially
claimed on Form CA-7, the employer shall furnish the employee with Form
CA-8 for the purpose of claiming continuing compensation.
(b) Upon receipt of Form CA-8 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five
working days after receipt from the employee, the employer shall
forward the completed Form CA-8 and any accompanying medical report to
OWCP.
Sec. 10.113 What should the employer do when an employee dies from a
work-related injury or disease?
(a) The employer shall immediately report a death due to a work-
related traumatic injury or occupational disease to OWCP by telephone,
telegram, or telefax. No more than 10 working days after notification
of the death, the employer shall complete and send Form CA-6 to OWCP.
(b) When possible, the employer shall furnish a Form CA-5 or CA-5b
to all persons likely to be entitled to compensation for death of an
employee. The employer should also supply information about completing
and filing the form.
(c) The employer shall promptly transmit Form CA-5 or CA-5b to
OWCP. The employer shall also promptly transmit to OWCP any other claim
or paper submitted which appears to claim compensation on account of
death.
Evidence and Burden of Proof
Sec. 10.115 What evidence is needed to establish a claim?
Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence
required. OWCP may send any request for additional evidence to the
claimant and to his or her representative, if any. Evidence should be
submitted in writing. The evidence submitted must
[[Page 67143]]
be reliable, probative and substantial. Each claim for compensation
must meet five requirements before OWCP can accept it. These
requirements are as follows:
(a) The claim was filed within the time limits specified by the
FECA;
(b) The injured person was, at the time of injury, an employee of
the U.S. as defined in 5 U.S.C. 8101(1) and Sec. 10.5(h) of this part;
(c) The fact that an injury, disease or death occurred;
(d) The injury, disease or death occurred while the employee was in
the performance of duty; and
(e) The medical condition for which compensation or medical
benefits is claimed is causally related to the claimed injury, disease
or death. For wage loss benefits, the claimant must also submit medical
evidence showing that the condition claimed is disabling. The rules for
submitting medical reports are found in Secs. 10.330 through 10.333.
Sec. 10.116 What additional evidence is needed in cases based on
occupational disease?
(a) The employee must submit the specific detailed information
described on Form CA-2 and on any checklist (Form CA-35, A-H) provided
by the employer. OWCP has developed these checklists to address
particular occupational diseases. The medical report should also
include the information specified on the checklist for the particular
disease claimed.
(b) The employer should submit the specific detailed information
described on Form CA-2 and on any checklist pertaining to the claimed
disease.
Sec. 10.117 What happens if the employer contests any of the facts as
stated by the claimant?
(a) An employer who has reason to disagree with any aspect of the
claimant's report shall submit a statement to OWCP that specifically
describes the factual allegation or argument with which it disagrees
and provide evidence or argument to support its position. The employer
may include supporting documents such as witness statements, medical
reports or records, or any other relevant information.
(b) Any such statement shall be submitted to OWCP with the notice
of traumatic injury or death, or within 30 calendar days from the date
notice of occupational disease or death is received from the claimant.
If the employer does not submit a written explanation to support the
disagreement, OWCP may accept the claimant's report of injury as
established. The employer may not use a disagreement with an aspect of
the claimant's report to delay forwarding the claim to OWCP or to
compel or induce the claimant to change the claim.
Sec. 10.118 Does the employer participate in the claims process in any
other way?
(a) The employer is responsible for submitting to OWCP all relevant
and probative factual and medical evidence in its possession, or which
it may acquire through investigation or other means. Such evidence may
be submitted at any time.
(b) The employer may ascertain the events surrounding an injury and
the extent of disability where it appears that an employee who alleges
total disability may be performing other work, or may be engaging in
activities which would indicate less than total disability. This
authority is in addition to that given in Sec. 10.118(a). However, the
provisions of the Privacy Act apply to any endeavor by the employer to
ascertain the facts of the case (see Secs. 10.10 and 10.11).
(c) The employer does not have the right, except as provided in
subpart C of this part, to actively participate in the claims
adjudication process.
Sec. 10.119 What action will OWCP take with respect to information
submitted by the employer?
OWCP will consider all evidence submitted appropriately, and OWCP
will inform the employee, the employee's representative, if any, and
the employer of any action taken. Where an employer contests a claim at
time of the initial submittal and the claim is later approved, OWCP
will notify the employer of the rationale for approving the claim.
Sec. 10.120 May a claimant submit additional evidence?
A claimant or a person acting on his or her behalf may submit to
OWCP at any time any other evidence relevant to the claim.
Sec. 10.121 What happens if OWCP needs more evidence from the
claimant?
If the claimant submits factual evidence, medical evidence, or
both, but OWCP determines that this evidence is not sufficient to meet
the burden of proof, OWCP will inform the employee of the additional
evidence needed. The claimant will be allowed up to 30 calendar days to
submit the evidence required. OWCP is not required to notify the
claimant a second time if the evidence submitted in response to its
first request is not sufficient to meet the burden of proof.
Decisions on Entitlement to Benefits
Sec. 10.125 How does OWCP determine entitlement to benefits?
(a) In reaching any decision with respect to FECA coverage or
entitlement, OWCP considers the claim presented by the claimant, the
report by the employer, and the results of such investigation as OWCP
may deem necessary.
(b) OWCP claims staff apply the law, the regulations, and its
procedures to the facts as reported or obtained upon investigation.
They also apply decisions of the Employees' Compensation Appeals Board
and administrative decisions of OWCP as set forth in FECA Program
Memoranda.
Sec. 10.126 What does the decision contain?
The decision shall contain findings of fact and a statement of
reasons. It is accompanied by information about the claimant's appeal
rights, which may include the right to a hearing, a reconsideration,
and/or a review by the Employees' Compensation Appeals Board. (See
subpart G of this part.)
Sec. 10.127 To whom is the decision sent?
A copy of the decision shall be mailed to the employee's last known
address. If the employee has a designated representative before OWCP, a
copy of the decision should also be mailed to the representative.
Notification to either the employee or the representative will be
considered notification to both. A copy of the decision will also be
sent to the employer.
Subpart C--Continuation of Pay
Sec. 10.200 What is continuation of pay?
(a) For most employees who sustain a traumatic injury, the FECA
provides that the employer must continue the employee's regular pay
during any periods of resulting disability, up to a maximum of 45
calendar days. This is called continuation of pay, or COP. The
employer, not OWCP, pays COP. Unlike workers' compensation benefits,
COP is subject to taxes and all other payroll deductions that are made
from regular income.
(b) While the employer must generally continue the pay of an
employee entitled to COP, the employer may make certain preliminary
determinations regarding an employee's entitlement to COP (including
not paying salary under Sec. 10.220 or terminating COP under
Sec. 10.221), and may in all circumstances controvert the payment. OWCP
has the exclusive authority to finally determine questions of
entitlement and all other issues relating to COP.
[[Page 67144]]
(c) The FECA excludes certain persons from eligibility for COP. COP
cannot be authorized for members of these excluded groups, which
include but are not limited to: persons rendering personal service to
the United States similar to the service of a civil officer or employee
of the United States, without pay or for nominal pay; volunteers (for
instance, in the Civil Air Patrol and Peace Corps); Job Corps and Youth
Conservation Corps enrollees; individuals in work-study programs, and
grand or petit jurors (unless otherwise federal employees).
Eligibility for COP
Sec. 10.205 What other conditions must be met to receive COP?
(a) To be eligible for COP, a person must:
(1) Have a ``traumatic injury'' as defined at Sec. 10.5(dd) which
is job-related and the cause of the disability;
(2) File Form CA-1 within 30 days of the date of the injury (but if
that form is not available, using another form would not alone preclude
receipt); and
(3) Begin losing time from work due to the traumatic injury within
30 days of the injury.
(b) OWCP may find that the employee is not entitled to COP for
other reasons consistent with the statute (see Sec. 10.220).
Sec. 10.206 May an employee who uses leave after an injury later
decide to use COP instead?
On Form CA-1, an employee may elect to use accumulated sick or
annual leave, or leave advanced by the agency, instead of electing COP.
The employee can change the election between leave and COP for
prospective periods at any point while eligibility for COP remains. The
employee may also change the election for past periods and request COP
in lieu of leave already taken for the same period. In either
situation, the following provisions apply:
(a) The request must be made to the employer within one year of the
date the leave was used or the date of the written approval of the
claim by OWCP, whichever is later.
(b) Where the employee is otherwise eligible, the agency shall
restore leave taken in lieu of any of the 45 COP days. Where any of the
45 COP days remain unused, the agency shall continue pay prospectively.
(c) The use of leave may not be used to delay or extend the 45-day
COP period or to otherwise affect the time limitation as provided by 5
U.S.C. 8117. Therefore, any leave used during the period of eligibility
counts towards the 45 day maximum entitlement to COP.
Sec. 10.207 May an employee who returns to work, then stops work again
due to the effects of the injury, receive COP?
If the employee recovers from disability and returns to work, then
becomes disabled again and stops work, the employer shall pay any of
the 45 days of entitlement to COP not used during the initial period of
disability where:
(a) The employee completes Form CA-2a and elects to receive regular
pay;
(b) OWCP did not deny the original claim for disability;
(c) The disability recurs and the employee stops work within 30
days of the time the employee first returned to work following the
initial period of disability; and
(d) Pay has not been continued for the entire 45 days.
Responsibilities
Sec. 10.210 What are the employee's responsibilities in COP cases?
An employee who sustains a traumatic injury which he or she
considers disabling, or someone authorized to act on his or her behalf,
must take the following actions to ensure continuing eligibility for
COP. The employee must:
(a) Complete and submit Form CA-1 to the employing agency as soon
as possible, but no later than 30 days from the date the traumatic
injury occurred.
(b) Ensure that medical evidence supporting disability resulting
from the claimed traumatic injury, including a statement as to when the
employee can return to his or her date of injury job, is provided to
the employer within 10 calendar days after filing the claim for COP.
(c) Ensure that relevant medical evidence is submitted to OWCP, and
cooperate with OWCP in developing the claim.
(d) Ensure that the treating physician specifies work restrictions
and provides them to the employer and/or representatives of OWCP.
(e) Provide to the treating physician a description of any specific
alternative positions offered the employee, and ensure that the
treating physician responds promptly to the employer and/or OWCP, with
an opinion as to whether and how soon the employer could perform that
or any other specific position.
Sec. 10.211 What are the employer's responsibilities in COP cases?
Once the employer learns of a traumatic injury sustained by an
employee, it shall:
(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in
accordance with Sec. 10.300. Failure to do so may mean that OWCP will
not uphold any termination of COP by the employer.
(b) Advise the employee of the right to receive COP, and the need
to elect among COP, annual or sick leave or leave without pay, for any
period of disability.
(c) Inform the employee of any decision to controvert COP and/or
terminate pay, and the basis for doing so.
(d) Complete Form CA-1 (or other form approved by the Secretary)
and return it, along with all other available pertinent information,
(including the basis for any controversion), to OWCP within five
calendar days after receiving the completed form from the employee.
Calculation of COP
Sec. 10.215 How does OWCP compute the number of days of COP used?
COP is payable for a maximum of 45 calendar days, and every day
used is counted toward this maximum. The following rules apply:
(a) Time lost on the day or shift of the injury does not count
toward COP. (Instead, the agency must keep the employee in a pay status
for that period);
(b) The first COP day is the first day disability begins following
the date of injury (providing it is within the 30 days following the
date of injury), except where the injury occurs before the beginning of
the work day or shift, in which case the date of injury is charged to
COP;
(c) Any part of a day or shift (except for the day of the injury)
counts as a full day toward the 45 calendar day total;
(d) Regular days off are included if COP has been used on the
regular work days immediately preceding and following the regular
day(s) off; and
(e) Leave used during a period when COP is otherwise payable is
counted toward the 45 day COP maximum as if the employee had been in a
COP status.
Sec. 10.216 How is the pay rate for COP calculated?
The employer shall calculate COP using the period of time and the
weekly pay rate.
(a) The pay rate for COP purposes is equal to the employee's
regular ``weekly'' pay (the average of the weekly pay over the
preceding 52 weeks).
(1) The pay rate excludes overtime, but includes applicable
premium, Sunday and holiday pay, night and shift differential or other
extra pay.
(2) Changes in pay or salary (for example, promotion, demotion,
within-grade increases, termination of a
[[Page 67145]]
temporary detail, etc.) which would have otherwise occurred during the
45-day period are to be reflected in the weekly pay determination.
(b) The weekly pay for COP purposes is determined according to the
following formulas:
(1) For full or part-time workers (permanent or temporary) who work
the same number of hours each week of the year (or of the appointment),
the weekly pay rate is the hourly pay rate (A) in effect on the date of
injury multiplied by ( x ) the number of hours worked each week (B): A
x B = Weekly Pay Rate.
(2) For part-time workers (permanent or temporary) who do not work
the same number of hours each week, but who do work each week of the
year (or period of appointment), the weekly pay rate is an average of
the weekly earnings, established by dividing () the total
earnings (excluding overtime) from the year immediately preceding the
injury (A) by the number of weeks (or part of a week) worked in that
year (B): AB = Weekly Pay Rate.
(3) For intermittent, seasonal and on-call workers, whether
permanent or temporary, who do not work either the same number of hours
or every week of the year (or period of appointment), the weekly pay
rate is the average weekly earnings established by dividing ()
the total earnings during the full 12-month period immediately
preceding the date of injury (excluding overtime) (A), by the number of
weeks (or part of a week) worked during that year (B) (that is,
AB); or 150 times the average daily wage earned in the
employment during the days employed within the full year immediately
preceding the date of injury divided by 52 weeks, whichever is greater.
Sec. 10.217 Is COP charged if the employee continues to work, but in a
different job that pays less?
If the employee cannot perform the duties of his or her regular
position, but instead works in another job with different duties with
no loss in pay, then COP is not chargeable. COP must be paid and the
days counted against the 45 days authorized by law whenever an actual
reduction of pay results from the injury. This includes work which
results in loss of salary or premium (that is, Sunday or night
differential) pay authorized for the employee's normal administrative
workweek.
Controversion and Termination of COP
Sec. 10.220 When is an employer not required to pay COP?
An employer shall continue the regular pay of an eligible employee
without a break in time for up to 45 calendar days, except when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of
injury;
(d) The injury was not reported until after employment has been
terminated;
(e) The injury occurred off the premises and was otherwise not
within the performance of official duties;
(f) The injury was caused by the employee's willful misconduct,
intent to injure or kill himself or herself or another person, or was
proximately caused by intoxication by alcohol or illegal drugs; or
(g) Work did not stop until more than 30 days following the injury.
Sec. 10.221 How is a claim for COP controverted?
When the employer stops an employee's pay for one of the reasons in
Sec. 10.220, the employer must controvert the claim for COP on Form CA-
1, explaining in detail the basis for the refusal. The final
determination on entitlement to COP always rests with OWCP.
Sec. 10.222 When may an employer terminate COP which has already
begun?
(a) Where the employer has continued the pay of the employee, it
may be stopped only when at least one of the following circumstances is
present:
(1) Medical evidence which on its face supports disability due to a
work-related injury, is not received within 10 calendar days after the
claim is submitted (unless the employer's own investigation shows
disability to exist);
(2) The medical evidence from the treating physician shows the
individual is not disabled from his or her regular position;
(3) Medical evidence from the treating physician shows that the
employee is not totally disabled and the employee refuses a written
offer of a suitable alternative position as determined by OWCP;
(4) The employee returns to work with no loss of pay;
(5) The employee's period of employment expires or employment is
otherwise terminated (as established prior to the date of injury);
(6) OWCP directs the employer to stop COP; and/or
(7) COP has been paid for 45 calendar days.
(b) An employer may not interrupt or stop COP to which the employee
is otherwise entitled because of a disciplinary action, unless a
preliminary notice was issued to the employee before the date of injury
and the action becomes final or otherwise takes effect during the COP
period.
(c) An employer must file a controversion with OWCP, setting forth
the basis on which it terminated COP, no later than the effective date
of the termination.
Sec. 10.223 Are there other circumstances under which OWCP will not
authorize payment of COP?
When OWCP finds that an employee refuses or obstructs a required
medical examination, the right to COP is suspended until the refusal or
obstruction ceases. COP already paid or payable for the period of
suspension is forfeited. If already paid, the COP may be charged to
annual or sick leave or considered an overpayment of pay consistent
with 5 U.S.C. 5584.
Sec. 10.224 What happens if OWCP finds that the employee is not
entitled to COP after it has been paid?
Where OWCP finds that the employee is not entitled to COP after it
has been paid, the employee may chose to have the time charged to
annual or sick leave, or considered an overpayment of pay under 5
U.S.C. 5584. The employer must correct any deficiencies in COP as
directed by OWCP.
Subpart D--Medical and Related Benefits
Emergency Medical Care
Sec. 10.300 What are the basic rules for authorizing emergency medical
care?
(a) When an employee sustains a work-related traumatic injury that
requires medical examination, medical treatment, or both, the employer
shall authorize such examination and/or treatment by issuing a Form CA-
16. This form may be used for occupational disease or illness only if
the employer has obtained prior permission from OWCP.
(b) The employer shall issue Form CA-16 within four hours of the
claimed injury. If the employer gives verbal authorization for such
care, he or she should issue a Form CA-16 within 48 hours. The employer
is not required to issue a Form CA-16 more than one week after the
occurrence of the claimed injury. The employer may not authorize
examination or medical or other treatment in any case that OWCP has
disallowed.
(c) Form CA-16 must contain the full name and address of the
qualified physician or qualified medical facility authorized to provide
service. The authorizing official must sign and date
[[Page 67146]]
the form and must state his or her title. Form CA-16 authorizes
treatment for 60 days from the date of issuance, unless OWCP terminates
the authorization sooner.
(d) The employee has an initial choice of physician. The employer
shall allow the employee to select a qualified physician, after
advising him or her of those physicians excluded under subpart I of
this part. The physician may be in private practice, including a health
maintenance organization (HMO), or employed by a federal agency such as
the Department of the Army, Navy, Air Force, or Veterans Affairs. Any
qualified physician may provide initial treatment of a work-related
injury in an emergency. See also Sec. 10.825(b).
Sec. 10.301 May the physician designated on Form CA-16 refer the
employee to another medical specialist or medical facility?
The physician designated on Form CA-16 may refer the employee for
further examination, testing, or medical care. OWCP will pay this
physician or facility's bill on the authority of Form CA-16. The
employer should not issue a second Form CA-16.
Sec. 10.302 Should the employer authorize medical care if he or she
doubts that the injury occurred, or that it is work-related?
If the employer doubts that the injury occurred, or that it is
work-related, he or she should authorize medical care by completing
Form CA-16 and checking block 6B of the form. If the medical and
factual evidence sent to OWCP shows that the condition treated is not
work-related, OWCP will notify the employee, the employer, and the
physician or hospital that OWCP will not authorize payment for any
further treatment.
Sec. 10.303 Should the employer use a Form CA-16 to authorize medical
testing when an employee is exposed to a workplace hazard just once?
(a) Simple exposure to a workplace hazard, such as an infectious
agent, does not constitute a work-related injury entitling an employee
to medical treatment under the FECA. The employer therefore should not
use a Form CA-16 to authorize medical testing for an employee who has
merely been exposed to a workplace hazard, unless the employee has
sustained an identifiable injury or medical condition as a result of
that exposure. OWCP will authorize preventive treatment only under
certain well-defined circumstances (see Sec. 10.313).
(b) Employers may be required under other statutes or regulations
to provide their employees with medical testing and/or other services
in situations described in paragraph (a) of this section. For example,
regulations issued by the Occupational Safety and Health Administration
at Chapter XVII of Title 29 of the Code of Federal Regulations require
employers to provide their employees with medical consultations and/or
examinations when they either exhibit symptoms consistent with exposure
to a workplace hazard, or when an identifiable event such as a spill,
leak or explosion occurs and results in the likelihood of exposure to a
workplace hazard. In addition, 5 U.S.C. 7901 authorizes employers to
establish health programs whose staff can perform tests for workplace
hazards, counsel employees for exposure or feared exposure to such
hazards, and provide health care screening and other associated
services.
Sec. 10.304 Are there any exceptions to these procedures?
In cases involving emergencies or unusual circumstances, OWCP may
authorize treatment in a manner other than as stated in this subpart.
Medical Treatment and Related Issues
Sec. 10.310 What are the basic rules for obtaining medical care?
(a) The employee is entitled to receive all medical services,
appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related
injury. The employee need not be disabled to receive such treatment. If
there is any doubt as to whether a specific service, appliance or
supply is necessary to treat the work-related injury, the employee
should consult OWCP prior to obtaining it.
(b) Any qualified physician or qualified hospital may provide such
services, appliances and supplies. A qualified provider of medical
support services may also furnish appropriate services, appliances, and
supplies. OWCP may apply a test of cost-effectiveness to appliances and
supplies. With respect to prescribed medications, OWCP may require the
use of generic equivalents where they are available.
Sec. 10.311 What are the special rules for the services of
chiropractors?
(a) The services of chiropractors that may be reimbursed are
limited by the FECA to treatment to correct a spinal subluxation. The
costs of physical and related laboratory tests performed by or required
by a chiropractor to diagnose such a subluxation are also payable.
(b) In accordance with 5 U.S.C. 8101(3), a diagnosis of spinal
``subluxation as demonstrated by X-ray to exist'' must appear in the
chiropractor's report before OWCP can consider payment of a
chiropractor's bill.
(c) A chiropractor may interpret his or her x-rays to the same
extent as any other physician. To be given any weight, the medical
report must state that x-rays support the finding of spinal
subluxation. OWCP will not necessarily require submittal of the x-ray,
or a report of the x-ray, but the report must be available for
submittal on request.
(d) A chiropractor may also provide services in the nature of
physical therapy under the direction of a qualified physician.
Sec. 10.312 What are the special rules for the services of clinical
psychologists?
A clinical psychologist may serve as a physician only within the
scope of his or her practice as defined by state law. Therefore, a
clinical psychologist may not serve as a physician for conditions that
include an organic component unless the applicable state law allows
clinical psychologists to treat organic conditions. A clinical
psychologist may also perform testing, evaluation and other services
under the direction of a qualified physician.
Sec. 10.313 Will OWCP pay for preventive treatment?
The FECA does not authorize payment for preventive measures such as
vaccines and inoculations, and in general, preventive treatment may be
a responsibility of the employing agency under the provisions of 5
U.S.C. 7901 (see Sec. 10.303). However, OWCP can authorize treatment
for the following conditions, even though such treatment is designed,
in part, to prevent further injury:
(a) Complications of preventive measures which are provided or
sponsored by the agency, such as an adverse reaction to prophylactic
immunization.
(b) Actual or probable exposure to a known contaminant due to an
injury, thereby requiring disease-specific measures against infection.
Examples include the provision of tetanus antitoxin or booster toxoid
injections for puncture wounds; administration of rabies vaccine for a
bite from a rabid or potentially rabid animal; or appropriate measures
where exposure to human immunodeficiency virus (HIV) has occurred.
(c) Conversion of tuberculin reaction from negative to positive
following exposure to tuberculosis in the performance of duty. In this
situation, the appropriate therapy may be authorized.
(d) Where injury to one eye has resulted in loss of vision,
periodic
[[Page 67147]]
examination of the uninjured eye to detect possible sympathetic
involvement of the uninjured eye at an early stage.
Sec. 10.314 Will OWCP pay for the services of an attendant?
Yes, the OWCP will pay for the services of an attendant up to a
maximum of $1,500 per month, where the need for such services has been
medically documented. In the exercise of the discretion afforded by 5
U.S.C. 8111(a), the Director has determined that, except where payments
were being made prior to [insert the effective date of the final rule],
direct payments to the claimant to cover such services will no longer
be made. Rather, the cost of providing attendant services will be paid
under section 8103 of the Act. This decision is based on the following
factors:
(a) The additional payments authorized under section 8111(a) should
not be necessary since OWCP will authorize payment for personal care
services under 5 U.S.C. 8103, whether or not such care includes medical
services, so long as the personal care services have been determined to
be medically necessary and are provided by a home health aide, licensed
practical nurse, or similarly trained individual.
(b) A home health aide, licensed practical nurse, or similarly
trained individual is better able to provide quality personal care
including assistance in feeding, bathing, and using the toilet. In the
past, provision of supplemental compensation directly to injured
employees may have encouraged family members to take on these
responsibilities even though they may not have been trained to provide
such services. By paying for the services under section 8103, OWCP can
better determine whether the services provided are necessary and/or
adequate to meet the needs of the injured employee. In addition, a
system requiring the personal care provider to submit a bill to OWCP
will result in greater fiscal accountability as the amount billed will
be subject to OWCP's fee schedule.
Sec. 10.315 Will OWCP pay for transportation to obtain medical
treatment?
The employee is entitled to reimbursement of reasonable and
necessary expenses, including transportation needed to obtain
authorized medical services, appliances or supplies. To determine what
is a reasonable distance to travel, OWCP will consider the availability
of services, the employee's condition, and the means of transportation.
Generally, 25 miles from the place of injury, the work site, or the
employee's home, is considered a reasonable distance to travel. The
standard form designated for federal employees to claim travel expenses
should be used to seek reimbursement under this section.
Sec. 10.316 After selecting a treating physician, may an employee
choose to be treated by another physician instead?
(a) When the physician originally selected to provide treatment for
a work-related injury refers the employee to a specialist for further
medical care, the employee need not consult OWCP for approval. In all
other instances, however, the employee must submit a written request to
OWCP with his or her reasons for desiring a change of physician.
(b) OWCP will approve the request if it determines that the reasons
submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician
who specializes in treating conditions like the work-related one, or
the need for a new physician when an employee has moved. The employer
may not authorize a change of physicians.
Directed Medical Examinations
Sec. 10.320 Can OWCP require an employee to be examined by another
doctor?
OWCP sometimes needs a second opinion from a medical specialist.
The employee must submit to examination by a qualified physician as
often and at such times and places as OWCP considers reasonably
necessary. The employee may have a qualified physician, paid by him or
her, present at such examination. However, the employee is not entitled
to have anyone else present at the examination unless OWCP decides that
exceptional circumstances exist. For example, where a hearing-impaired
employee needs an interpreter, the presence of an interpreter would be
allowed. Also, OWCP may send a case file for second opinion review
where actual examination is not needed, or where the employee is
deceased.
Sec. 10.321 What happens if the physician selected by OWCP does not
agree with the physician selected by the employee?
If a conflict exists between the medical opinion of the employee's
physician and the medical opinion of either a second opinion physician
or an OWCP medical adviser or consultant, OWCP shall appoint a third
physician to make an examination (see 5 U.S.C. 8123(a)). This is called
a referee examination. OWCP will select a physician who is qualified in
the appropriate specialty and who has had no prior connection with the
case. The employee is not entitled to have anyone present at the
examination unless OWCP decides that exceptional circumstances exist.
For example, where a hearing-impaired employee needs an interpreter,
the presence of an interpreter would be allowed. Also, a case file may
be sent for referee medical review where there is no need for an actual
examination, or where the employee is deceased.
Sec. 10.322 Who pays for second opinion and referee examinations?
OWCP will pay second opinion and referee medical specialists
directly. OWCP will reimburse the employee all necessary and reasonable
expenses incident to such an examination, including transportation
costs and actual wages lost for the time needed to submit to an
examination required by OWCP.
Sec. 10.323 What are the consequences of failing to report for or
obstructing a second opinion or referee examination?
If an employee refuses to submit to or in any way obstructs an
examination required by OWCP, his or her right to compensation under
the FECA is suspended until such refusal or obstruction stops. The
action of the employee's representative is considered to be the action
of the employee for purposes of this section. The employee will forfeit
compensation otherwise paid or payable under the FECA for the period of
the refusal or obstruction, and any compensation already paid for that
period will be declared an overpayment and will be subject to recovery
pursuant to 5 U.S.C. 8129.
Sec. 10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
The employer may have authority independent of the FECA to require
the employee to undergo a medical examination to determine whether he
or she meets the medical requirements of the position held or can
perform the duties of that position. Nothing in the FECA or in this
part affects such authority. However, no agency-required examination or
related activity shall interfere with the employee's initial choice of
physician or the provision of any authorized examination or treatment,
including the issuance of Form CA-16.
[[Page 67148]]
Medical Reports
Sec. 10.330 What are the requirements for medical reports?
In all cases reported to OWCP, a medical report from the attending
physician is required. This report should include:
(a) Dates of examination and treatment;
(b) History given by the employee;
(c) Physical findings;
(d) Results of diagnostic tests;
(e) Diagnosis;
(f) Course of treatment;
(g) A description of any other conditions found but not due to the
claimed injury;
(h) The treatment given or recommended for the claimed injury;
(i) The physician's opinion, with medical reasons, as to causal
relationship between the diagnosed condition(s) and the factors or
conditions of the employment;
(j) The extent of disability affecting the employee's ability to
work due to the injury;
(k) The prognosis for recovery; and
(l) All other material findings.
Sec. 10.331 How and when should the medical report be submitted?
(a) Form CA-16 may be used for the initial medical report; Form CA-
20 may be used for the initial report and for subsequent reports; and
Form CA-20a may be used where continued compensation is claimed. Use of
medical report forms is not required, however. The report may also be
made in narrative form on the physician's letterhead stationery. The
report should bear the physician's signature or signature stamp. OWCP
may require an original signature on the report.
(b) The report shall be submitted directly to OWCP as soon as
possible after medical examination or treatment is received, either by
the employee or the physician. (See also Sec. 10.210.) The employer may
request a copy of the report from OWCP. The employer should use Form
CA-17 to obtain interim reports concerning the duty status of an
employee with a disabling traumatic injury.
Sec. 10.332 What additional medical information will OWCP require to
support continuing payment of benefits?
In all cases of serious injury or disease, especially those
requiring hospital treatment or prolonged care, OWCP will request
detailed narrative reports from the attending physician at periodic
intervals. The physician will be asked to describe continuing medical
treatment for the condition accepted by OWCP, a prognosis, a
description of work limitations, if any, and the physician's opinion as
to the continuing causal relationship between the employee's condition
and factors of his or her federal employment.
Sec. 10.333 What additional medical information will OWCP require to
support a claim for a schedule award?
To support a claim for a schedule award, a medical report must
contain accurate measurements of the function of the organ or member.
These measurements may include: the actual degree of loss of active or
passive motion or deformity; the amount of atrophy; the decrease, if
any, in strength; the disturbance of sensation; and pain due to nerve
impairment.
Medical Bills
Sec. 10.335 How are medical bills submitted?
Usually, medical providers submit bills directly to OWCP. The rules
for submitting and paying bills are stated in subpart I of this part.
An employee claiming reimbursement of medical expenses should submit an
itemized bill as described in Sec. 10.802.
Sec. 10.336 What are the time frames for submitting bills?
To be considered for payment, bills must be submitted by the end of
the calendar year after the year when the expense was incurred, or by
the end of the calendar year after the year when OWCP first accepted
the claim as compensable, whichever is later.
Sec. 10.337 If OWCP reimburses an employee only partially for a
medical expense, must the provider refund the balance of the amount
paid to the employee?
(a) The OWCP fee schedule sets maximum limits on the amounts
payable for many services (see Sec. 10.805). The employee may be only
partially reimbursed for medical expenses because the amount he or she
paid to the medical provider for a service exceeds the maximum
allowable charge set by the OWCP fee schedule.
(b) If this happens, OWCP shall advise the provider of the maximum
allowable charge for the service in question and ask the provider to
refund to the employee, or credit to the employee's account, the amount
he or she paid which exceeds the maximum allowable charge. The provider
may request reconsideration of the fee determination as provided by
Sec. 10.812.
(c) If the provider does not refund to the employee or credit to
his or her account the amount of money paid in excess of the charge
which OWCP allows, OWCP may make reasonable reimbursement to the
employee after reviewing the facts and circumstances of the case.
Subpart E--Compensation and Related Benefits
Compensation for Disability and Impairment
Sec. 10.400 What is total disability?
(a) Permanent total disability is presumed to result from the loss
of use of both hands, both arms, both feet, or both legs, or the loss
of sight of both eyes. However, the presumption of permanent total
disability as a result of such loss may be rebutted by evidence to the
contrary, such as evidence of continued ability to work and to earn
wages despite the loss.
(b) Temporary total disability is defined as the inability to
return to the position held at the time of injury or earn equivalent
wages, or to perform other gainful employment, due to the work-related
injury. Except as presumed under paragraph (a) of this section, an
employee's disability status is always considered temporary pending
return to work.
Sec. 10.401 When and how is compensation for total disability payable?
(a) Compensation is payable when the employee starts to lose pay if
the injury causes permanent disability or if pay loss continues for
more than 14 days. Otherwise, compensation is payable on the fourth day
after pay stops. Compensation may not be paid while an injured employee
is in a continuation of pay status or receives pay for leave.
(b) Compensation for total disability is payable at the rate of
66\2/3\ percent of the pay rate if the employee has no dependents, or
75 percent of the pay rate if the employee has at least one dependent.
Sec. 10.402 What is partial disability?
An injured employee who cannot return to the position held at the
time of injury (or earn equivalent wages) due to the work-related
injury, but who is not totally disabled for all gainful employment, is
considered to be partially disabled.
Sec. 10.403 When and how is compensation for partial disability paid?
(a) 5 U.S.C. 8115 outlines how compensation for partial disability
is determined. If the employee has actual earnings which fairly and
reasonably represent his or her wage-earning capacity, those earnings
may form the basis for payment of compensation for partial disability.
If the employee's actual earnings do not fairly and reasonably
represent his or her wage-
[[Page 67149]]
earning capacity, or if the employee has no actual earnings, OWCP uses
the factors stated in 5 U.S.C. 8115 to select a position which
represents his or her wage-earning capacity. However, OWCP will not
secure employment for the employee in the position selected for
establishing a wage-earning capacity.
(b) Compensation for partial disability is payable as a percentage
of the difference between the employee's pay rate for compensation
purposes and the employee's wage-earning capacity. The percentage is
66\2/3\ percent of this difference if the employee has no dependents,
or 75 percent of this difference if the employee has at least one
dependent.
(c) The formula which OWCP uses to compute the compensation payable
for partial disability employs the following terms: pay rate for
compensation purposes, which is defined in Sec. 10.5(s) of this part;
current pay rate, which means the salary or wages for the job held at
the time of injury at the time of the determination; and earnings,
which means the employee's actual earnings, or the salary or pay rate
of the position selected by OWCP as representing the employee's wage-
earning capacity.
(d) The employee's wage-earning capacity in terms of percentage is
computed by dividing the employee's earnings by the current pay rate.
The comparison of earnings and ``current'' pay rate for the job held at
the time of injury need not be made as of the beginning of partial
disability. OWCP may use any convenient date for making the comparison
as long as both wage rates are in effect on the date used for
comparison.
(e) The employee's wage-earning capacity in terms of dollars is
computed by first multiplying the pay rate for compensation purposes by
the percentage of wage-earning capacity. The resulting dollar amount is
then subtracted from the pay rate for compensation purposes to obtain
the employee's loss of wage-earning capacity.
Sec. 10.404 When and how is compensation for a schedule impairment
paid?
Compensation is provided for specified periods of time for the
permanent loss or loss of use of certain members, organs and functions
of the body. Such loss or loss of use is known as permanent impairment.
Compensation for proportionate periods of time is payable for partial
loss or loss of use of each member, organ or function. OWCP evaluates
the degree of impairment to schedule members, organs and functions as
defined in 5 U.S.C. 8107 according to the standards set forth in the
specified (by OWCP) edition of the American Medical Association's
Guides to the Evaluation of Permanent Impairment available from the
Order Department, OP-025493, American Medical Association, P.O. Box
109050, Chicago, Illinois, 60610.
(a) 5 U.S.C. 8107(c) provides a list of schedule members. Pursuant
to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary has
added the following organs to the compensation schedule for injuries
that were sustained on or after September 7, 1974:
------------------------------------------------------------------------
Member Weeks
------------------------------------------------------------------------
Breast (one)................................................... 52
Kidney (one)................................................... 156
Larynx......................................................... 160
Lung (one)..................................................... 156
Penis.......................................................... 205
Testicle (one)................................................. 52
Tongue......................................................... 160
Ovary (one).................................................... 52
Uterus/cervix and vulva/vagina................................. 205
------------------------------------------------------------------------
(b) Compensation for schedule awards is payable at 66\2/3\ percent
of the employee's pay, or 75 percent of the pay when the employee has
at least one dependent.
(c) The period of compensation payable under 5 U.S.C. 8107(c) shall
be reduced by the period of compensation paid or payable under the
schedule for an earlier injury if:
(1) Compensation in both cases is for impairment of the same member
or function or different parts of the same member or function, or for
disfigurement; and
(2) OWCP finds that compensation payable for the later impairment
in whole or in part would duplicate the compensation payable for the
pre-existing impairment.
(d) Compensation not to exceed $3,500 may be paid for serious
disfigurement of the face, head or neck which is likely to handicap a
person in securing or maintaining employment.
Sec. 10.405 Who is considered a dependent in a claim based on
disability or impairment?
(a) Dependents include a wife or husband; an unmarried child under
18 years of age; an unmarried child over 18 who is incapable of self-
support; a student, until he or she reaches 23 years of age or
completes four years of school beyond the high school level; or a
wholly dependent parent.
(b) Augmented compensation payable for an unmarried child, which
would otherwise terminate when the child reached the age of 18, may be
continued while the child is a student as defined in 5 U.S.C. 8101(17).
Sec. 10.406 What are the maximum and minimum rates of compensation in
disability cases?
(a) Compensation for total or partial disability may not exceed 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule. (Basic monthly pay does not include locality
adjustments.) However, this limit does not apply to disability
sustained in the performance of duty which was due to an assault which
occurred during an attempted assassination of a federal official
described under 10 U.S.C. 351(a) or 1751(a).
(b) Compensation for total disability may not be less than 75
percent of the basic monthly pay of the first step of grade 2 of the
General Schedule or actual pay, whichever is less. (Basic monthly pay
does not include locality adjustments.)
Compensation for Death
Sec. 10.410 What are the rates of compensation payable in death cases?
The rates of compensation payable in death cases are stated in 5
U.S.C. 8133.
Sec. 10.411 What are the maximum and minimum rates of compensation in
death cases?
(a) Compensation for death may not exceed the employee's pay or 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule, except that compensation may exceed the employee's
basic monthly pay if such excess is created by authorized cost-of-
living increases. (Basic monthly pay does not include locality
adjustments.) However, the maximum limit does not apply when the death
occurred during an assassination of a federal official described under
18 U.S.C. 351(a) or 18 U.S.C. 1751(a).
(b) Compensation for death is computed on a minimum pay rate equal
to the basic monthly pay of an employee at the first step of grade 2 of
the General Schedule. (Basic monthly pay does not include locality
adjustments.)
Sec. 10.412 Will OWCP pay the costs of burial and transportation of
the remains?
In a case accepted for death benefits, OWCP will pay up to $800 for
funeral and burial expenses. When an employee's home is within the U.S.
and the employee dies outside the U.S., or away from home or the
official duty station, an additional amount may be paid for
transporting the remains to the employee's home. An additional amount
of $200 is paid to the personal representative of the decedent for
reimbursement of the costs of
[[Page 67150]]
terminating the decedent's status as an employee of the United States.
Sec. 10.413 If a person dies while receiving a schedule award, to whom
is the balance of the schedule award payable?
The circumstances under which the balance of a schedule award may
be paid to an employee's survivors are described in 5 U.S.C. 8109.
Therefore, if there is no surviving spouse or child, OWCP will pay
benefits as follows:
(a) To the parent, or parents, wholly dependent for support on the
decedent in equal shares with any wholly dependent brother, sister,
grandparent or grandchild;
(b) To the parent, or parents, partially dependent for support on
the decedent in equal shares when there are no wholly dependent
brothers, sisters, grandparents or grandchildren (or other wholly
dependent parent); and
(c) To the parent, or parents, partially dependent upon the
decedent, 25 percent of the amount payable, shared equally, and the
remaining 75 percent to any wholly dependent brother, sister,
grandparent or grandchild (or wholly dependent parent), share and share
alike.
Sec. 10.414 What reports of dependents are needed in death cases?
If a beneficiary is receiving compensation benefits on account of
an employee's death, OWCP will ask him or her to complete a report once
each year on Form CA-12. The report requires the beneficiary to note
changes in marital status and dependents. If the beneficiary fails to
submit the form (or an equivalent written statement) within 30 days of
the date of request, OWCP shall suspend compensation until the
requested form or equivalent written statement is received. The
suspension will include compensation payable for or on behalf of
another person (for example, compensation payable to a widow on behalf
of a child). When the form or statement is received, compensation will
be reinstated at the appropriate rate retroactive to the date of
suspension, provided the beneficiary is entitled to such compensation.
Sec. 10.415 What must a beneficiary do if the number of beneficiaries
decreases?
The circumstances under which compensation on account of death
shall be terminated are described in 5 U.S.C. 8133(b). A beneficiary in
a claim for death benefits should promptly notify OWCP of any event
which would affect his or her entitlement to continued compensation.
The terms ``marriage'' and ``remarriage'' include common-law marriage
as recognized and defined by state law in the state where the
beneficiary resides. If a beneficiary, or someone acting on his or her
behalf, receives a check which includes payment of compensation for any
period after the date when entitlement ended, he or she must promptly
return the check to OWCP.
Sec. 10.416 How does a change in the number of beneficiaries affect
the amount of compensation paid to the other beneficiaries?
If compensation to a beneficiary is terminated, the amount of
compensation payable to one or more of the remaining beneficiaries may
be reapportioned. Similarly, the birth of a posthumous child may result
in a reapportionment of the amount of compensation payable to other
beneficiaries. The parent, or someone acting on the child's behalf,
shall promptly notify OWCP of the birth and submit a copy of the birth
certificate.
Sec. 10.417 What reports are needed when compensation payments
continue for children over age 18?
(a) Compensation payable on behalf of a child, brother, sister, or
grandchild, which would otherwise end when the person reaches 18 years
of age, shall be continued if and for so long as he or she is not
married and is either a student as defined in 5 U.S.C. 8101(17), or
physically or mentally incapable of self-support.
(b) At least twice each year, OWCP will ask a beneficiary receiving
compensation based on the student status of a dependent to provide
proof of continuing entitlement to such compensation, including
certification of school enrollment.
(c) Likewise, at least twice each year, OWCP will ask a beneficiary
or legal guardian receiving compensation based on a dependent's
physical or mental inability to support himself or herself to submit a
medical report verifying that the dependent's medical condition
persists and that it continues to preclude self-support.
Adjustments to Compensation
Sec. 10.420 How are cost-of-living adjustments applied?
(a) In cases of disability, a beneficiary is eligible for cost-of-
living adjustments under 5 U.S.C. 8146(a) where injury-related
disability began more than one year prior to the date the cost-of-
living adjustment took effect. The employee's use of continuation of
pay as provided by 5 U.S.C. 8118, or of sick or annual leave, during
any part of the period of disability does not affect the computation of
the one-year period.
(b) Where an injury does not result in disability but compensation
is payable for permanent impairment of a covered member, organ or
function of the body, a beneficiary is eligible for cost-of-living
adjustments under 5 U.S.C. 8146(a) where the award for such impairment
began more than one year prior to the date the cost-of-living
adjustment took effect.
(c) In cases of recurrence of disability, where the pay rate for
compensation purposes is the pay rate at the time disability recurs, a
beneficiary is eligible for cost-of-living adjustments under 5 U.S.C.
8146(a) where the effective date of that pay rate began more than one
year prior to the date the cost-of living adjustment took effect.
(d) In cases of death, entitlement to cost-of-living adjustments
under 5 U.S.C. 8146(a) begins with the first such adjustment occurring
more than one year after the date of death. However, if the death was
preceded by a period of injury-related disability, compensation payable
to the survivors will be increased by the same percentages as the cost-
of-living adjustments paid or payable to the deceased employee for the
period of disability, as well as by subsequent cost-of-living
adjustments to which the survivors would otherwise be entitled.
Sec. 10.421 May a beneficiary receive other kinds of payments from the
federal government concurrently with compensation?
(a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive
wage-loss compensation concurrently with a federal retirement or
survivor annuity. The beneficiary must elect the benefit that he or she
wishes to receive, and the election, once made, is revocable.
(b) An employee may receive compensation concurrently with military
retired pay, retirement pay, retainer pay or equivalent pay for service
in the Armed Forces or other uniformed services, subject to the
reduction of such pay in accordance with 5 U.S.C. 5532(b).
(c) An employee may not receive compensation for total disability
concurrently with severance pay or separation pay. However, an employee
may concurrently receive compensation for partial disability or
permanent impairment to a schedule member with severance pay or
separation pay.
(d) Pursuant to 5 U.S.C. 8116(d), a beneficiary may receive
compensation under the FECA for either the death or disability of an
employee concurrently with benefits under title II of the Social
Security Act on account of the age or death of such employee. However,
this provision of the FECA also requires OWCP to reduce the amount of
any such
[[Page 67151]]
compensation by the amount of any Social Security Act benefits that are
attributable to the federal service of the employee.
(e) To determine the employee's entitlement to compensation, OWCP
may require an employee to submit an affidavit or statement as to the
receipt of any federally funded or federally assisted benefits. If an
employee fails to submit such affidavit or statement within 30 days of
the date of the request, his or her right to compensation shall be
suspended until such time as the requested affidavit or report is
received. At that time compensation will be reinstated retroactive to
the date of suspension provided the employee is entitled to such
compensation.
Sec. 10.422 May compensation payments be issued in a lump sum?
(a) In exercise of the discretion afforded under 5 U.S.C. 8135(a),
OWCP has determined that lump-sum payments will not be made to persons
entitled to wage-loss benefits (that is, those payable under 5 U.S.C.
8105 and 8106). Therefore, when OWCP receives requests for lump-sum
payments for wage-loss benefits, OWCP will not exercise further
discretion in the matter. This determination is based on several
factors, including:
(1) The purpose of the FECA, which is to replace lost wages;
(2) The prudence of providing wage-loss benefits on a regular,
recurring basis; and
(3) The high cost of the long-term borrowing that is needed to pay
out large lump sums.
(b) However, a lump sum payment may be made to an employee entitled
to a schedule award under 5 U.S.C. 8107 where OWCP determines that such
a payment is in the employee's best interest. Lump-sum payments of
schedule awards generally will be considered in the employee's best
interest only where the employee does not rely upon compensation
payments as a substitute for lost wages (that is, the employee is
working or is receiving annuity payments). An employee possesses no
absolute right to a lump-sum payment of benefits payable under 5 U.S.C.
8107.
(c) Lump-sum payments to surviving spouses are addressed in 5
U.S.C. 8135(b).
Sec. 10.423 May compensation payments be assigned to, or attached by,
creditors?
(a) As a general rule, compensation and claims for compensation are
exempt from the claims of private creditors. This rule does not apply
to claims submitted by federal agencies. Further, any attempt by a FECA
beneficiary to assign his or her claim is null and void. However,
pursuant to provisions of the Social Security Act, 42 U.S.C. 659, and
regulations issued by the Office of Personnel Management (OPM) at 5 CFR
part 581, FECA benefits, including survivor's benefits, may be
garnished to collect overdue alimony and child support payments.
(b) Garnishment for child support and alimony may be requested by
providing a copy of the state agency or court order to the district
office handling the FECA claim.
Sec. 10.424 May someone other than the beneficiary be designated to
receive compensation payments?
A beneficiary may be incapable of managing or directing the
management of his or her benefits because of a mental or physical
disability, or because of legal incompetence, or because he or she is
under 18 years of age. In this situation, absent the appointment of a
guardian or other party to manage the financial affairs of the claimant
by a court or administrative body authorized to do so, OWCP in its sole
discretion may approve a person to serve as the representative payee
for funds due the beneficiary.
Overpayments
Sec. 10.430 How does OWCP notify an individual of a payment made?
(a) In addition to providing narrative descriptions to recipients
of benefits paid or payable, OWCP includes on each periodic check an
indication of the period for which payment is being made. A form is
sent to the recipient with each supplemental check which states the
date and amount of the payment and the period for which payment is
being made. For payments sent by electronic funds transfer (EFT), a
notification of the date and amount of payment appears on the statement
from the recipient's financial institution.
(b) By these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment. If the amount received
differs from the amount indicated on the written notice or bank
statement, the recipient is responsible for notifying OWCP of the
difference. Absent affirmative evidence to the contrary, the
beneficiary will be presumed to have received the notice of payment,
whether mailed or transmitted electronically.
Sec. 10.431 What does OWCP do when an overpayment is identified?
Before seeking to recover an overpayment or adjust benefits, OWCP
will advise the beneficiary in writing that:
(a) The overpayment exists, and the amount of overpayment;
(b) A preliminary finding shows either that the individual was or
was not at fault in the creation of the overpayment;
(c) He or she has the right to inspect and copy Government records
relating to the overpayment; and
(d) He or she has the right to present evidence which challenges
the fact or amount of the overpayment, and/or challenges the
preliminary finding that he or she was at fault in the creation of the
overpayment. He or she may also request that recovery of the
overpayment be waived.
Sec. 10.432 How can an individual present evidence to OWCP in response
to a preliminary notice of an overpayment?
The individual may present this evidence to OWCP in writing or at a
pre-recoupment hearing. The evidence must be presented or the hearing
requested within 30 days of the date of the written notice of
overpayment. Failure to request the hearing within this 30-day time
period shall constitute a waiver of that right.
Sec. 10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
(a) OWCP may consider waiving an overpayment only if the individual
to whom it was made was not at fault in accepting or creating the
overpayment. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper. The recipient must show good faith and
exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits. A recipient who has done any
of the following will be found to be at fault with respect to creating
an overpayment:
(1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have known to
be incorrect. (This provision applies only to the overpaid individual.)
(b) Whether or not OWCP determines that an individual was at fault
with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the
[[Page 67152]]
individual's capacity to realize that he or she is being overpaid.
Sec. 10.434 If OWCP finds that the recipient of an overpayment was not
at fault, what criteria are used to decide whether to waive recovery of
it?
If OWCP finds that the recipient of an overpayment was not at
fault, repayment will still be required unless:
(a) Adjustment or recovery of the overpayment would defeat the
purpose of the FECA (see Sec. 10.436), or
(b) Adjustment or recovery of the overpayment would be against
equity and good conscience (see Sec. 10.437).
Sec. 10.435 Is an individual responsible for an overpayment that
resulted from an error by OWCP or another government agency?
(a) The fact that OWCP may have erred in making the overpayment, or
that the overpayment may have resulted from an error by another
Government agency, does not by itself relieve the individual who
received the overpayment from liability for repayment if the individual
also was at fault in accepting the overpayment.
(b) However, OWCP may find that the individual was not at fault if
failure to report an event affecting compensation benefits, or
acceptance of an incorrect payment, occurred because:
(1) The individual relied on misinformation given in writing by
OWCP (or by another governmental agency which he or she had reason to
believe was connected with the administration of benefits) as to the
interpretation of a pertinent provision of the FECA or its regulations;
or
(2) OWCP erred in calculating cost-of-living increases, schedule
award length and/or percentage of impairment, or loss of wage-earning
capacity.
Sec. 10.436 Under what circumstances would recovery of an overpayment
defeat the purpose of the FECA?
Recovery of an overpayment will defeat the purpose of the FECA if
such recovery would cause hardship to a currently or formerly entitled
beneficiary because:
(a) The beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation
benefits) to meet current ordinary and necessary living expenses; and
(b) The beneficiary's assets do not exceed a specified amount as
determined by OWCP from data furnished by the Bureau of Labor
Statistics. A higher amount is specified for a beneficiary with one or
more dependents.
Sec. 10.437 Under what circumstances would recovery of an overpayment
be against equity and good conscience?
(a) Recovery of an overpayment is considered to be against equity
and good conscience when any individual who received an overpayment
would experience severe financial hardship in attempting to repay the
debt.
(b) Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a
valuable right or changes his or her position for the worse. In making
such a decision, OWCP does not consider the individual's current
ability to repay the overpayment.
(1) To establish that a valuable right has been relinquished, it
must be shown that the right was in fact valuable, that it cannot be
regained, and that the action was based chiefly or solely in reliance
on the payments or on the notice of payment. Donations to charitable
causes or gratuitous transfers of funds to other individuals are not
considered relinquishments of valuable rights.
(2) To establish that an individual's position has changed for the
worse, it must be shown that the decision made would not otherwise have
been made but for the receipt of benefits, and that this decision
resulted in a loss.
Sec. 10.438 Can OWCP require the individual who received the
overpayment to submit additional financial information?
(a) The individual who received the overpayment is responsible for
providing information about income, expenses and assets as specified by
OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of the FECA, or be against
equity and good conscience. This information will also be used to
determine the repayment schedule, if necessary.
(b) Failure to submit the requested information within 30 days of
the request shall result in denial of waiver, and no further request
for waiver shall be considered until the requested information is
furnished.
Sec. 10.439 May other issues be addressed at the pre-recoupment
hearing?
At the pre-recoupment hearing, the OWCP representative will
consider all issues in the claim on which a formal decision has been
issued. The hearing will thus fulfill OWCP's obligation to provide pre-
recoupment rights and a hearing under 5 U.S.C. 8124(b). Pre-recoupment
hearings shall be conducted in exactly the same manner as provided in
Sec. 10.615 through Sec. 10.622.
Sec. 10.440 How does OWCP communicate its final decision concerning
recovery of an overpayment, and what appeal right accompanies it?
(a) OWCP will send a copy of the final decision to the individual
from whom recovery is sought; his or her representative, if any; and
the employing agency.
(b) The only review of a final decision concerning an overpayment
is to the Employees' Compensation Appeals Board. The provisions of 5
U.S.C. 8124(b) (concerning hearings) and 5 U.S.C. 8128(a) (concerning
reconsiderations) do not apply to such a decision.
Sec. 10.441 How are overpayments collected?
(a) When an overpayment has been made to an individual who is
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant
factors, so as to minimize any hardship. Should the individual die
before collection has been completed, collection shall be made by
decreasing later payments, if any, payable under the FECA with respect
to the individual's death.
(b) When an overpayment has been made to an individual who is not
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. The overpayment is subject to the
provisions of the Debt Collection Act of 1982 and may be reported to
the Internal Revenue Service as income. If the individual fails to make
such refund, OWCP may recover the same through any available means,
including offset of salary, annuity benefits, or other Federal
payments, including tax refunds as authorized by the Tax Refund Offset
Program, or referral of the debt to a collection agency or to the
Department of Justice.
Subpart F--Continuing Entitlement to Benefits
Sec. 10.500 What are the basic rules governing continuing receipt of
compensation benefits?
OWCP's goal is to return each disabled employee to suitable work as
[[Page 67153]]
soon as medically able. ``Suitable work'' is defined as employment
which is: appropriate to the nature of the injury; the degree of
physical impairment; the employee's usual work; the employee's age; the
employee's qualifications for other work; and the availability of the
work.
(a) Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is
available only for any periods during which an employee's work-related
medical condition prevents him or her from earning the wages earned
before the work-related injury. Payment of medical benefits is
available for all treatment necessary due to a work-related medical
condition. The employee is responsible for providing sufficient medical
evidence to justify payment of any compensation sought.
(1) To support payment of continuing compensation, narrative
medical evidence must be submitted whenever OWCP requests it but not
less than once a year. It must contain a physician's rationalized
opinion as to whether the specific period of alleged disability is
causally related to the employee's accepted injury or illness.
(2) The physician's opinion must be based on the facts of the case
and the complete medical background of the employee, must be one of
reasonable medical certainty and must include objective findings in
support of its conclusions. Subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing
compensation. Likewise, medical restrictions based solely on the fear
of a possible future injury are also not sufficient to support payment
of continuing compensation. See Sec. 10.330 for a fuller discussion of
medical evidence.
(b) OWCP may require any kind of non-invasive testing to determine
the employee's functional capacity. In addition, OWCP may direct the
employee to undergo a second opinion or referee examination in any case
it deems appropriate (see Secs. 10.320 and 10.321).
(c) In considering the medical and factual evidence, OWCP will
weigh the probative value of the attending physician's report, any
second opinion physician's report, any other medical reports, or any
other evidence in the file. If OWCP determines that the medical
evidence supporting one conclusion is more consistent, logical, and
well-reasoned than evidence supporting a contrary conclusion, OWCP will
use the conclusion that is supported by the weight of the medical
evidence as the basis for awarding or denying further benefits. If
medical reports that are equally well-reasoned support inconsistent
determinations of an issue under consideration, OWCP will direct the
employee to undergo a referee examination to resolve the issue. The
results of the referee examination will be given special weight in
determining the issue.
(d) Once OWCP has advised the employee that it has accepted a claim
and has either approved continuation of pay or paid medical benefits or
compensation, benefits will not be terminated or reduced unless the
weight of the evidence establishes that:
(1) The disability for which compensation was paid has ceased;
(2) The disabling condition is no longer causally related to the
employment;
(3) The employee is only partially disabled;
(4) The employee has returned to work;
(5) The beneficiary was convicted of fraud in connection with a
claim under the FECA, or the beneficiary was incarcerated based on any
felony conviction; or
(6) OWCP's initial decision was in error.
Return to Work--Employer's Responsibilities
Sec. 10.505 What actions must the employer take?
Upon authorizing medical care, the employer should advise the
employee in writing as soon as possible of his or her obligation to
return to work under Sec. 10.210 and as defined in this subpart. The
term ``return to work'' as used in this subpart is not limited to
returning to work at the employee's normal worksite or usual position,
but may include returning to work at other locations and in other
positions. In general, the employer should make all reasonable efforts
to place the employee in his or her former or an equivalent position,
in accordance with 5 U.S.C. 8151(b)(2), if the employee has fully
recovered within one year. The Office of Personnel Management (not
OWCP) administers this provision.
(a) Where the employer has specific alternative positions available
for partially disabled employees, the employer should advise the
employee of the specific duties and physical requirements of those
positions.
(b) Where the employer has no specific alternative positions
available for an employee who can perform restricted or limited duties,
the employer should advise the employee of any accommodations the
agency can make to accommodate the employee's limitations due to the
injury.
(c) The employer must make any job offer in writing. The offer must
include a description of the duties of the position, the physical
requirements of those duties, and the date by which the employee is
either to return to work or notify the employer of his or her decision
to accept or refuse the job offer. The employer must send a complete
copy of any job offer to OWCP when it is sent to the employee.
Sec. 10.506 May the employer monitor the employee's medical care?
The employer may monitor the employee's medical progress and duty
status by obtaining periodic medical reports. Form CA-17 is provided
for this purpose. To aid in returning an injured employee to suitable
employment, the employer may also contact the employee's physician in
writing concerning the work limitations imposed by the effects of the
injury and possible job assignments. When such contact is made, the
employer shall send a copy of any such correspondence to OWCP and the
employee, as well as a copy of the physician's response when received.
The employer may also contact the employee at reasonable intervals to
request periodic medical reports addressing his or her ability to
return to work.
Sec. 10.507 How should the employer make an offer of suitable work?
Where the attending physician or OWCP notifies the employer in
writing that the employee is partially disabled (that is, the employee
can perform some work but not return to the position held at date of
injury), the employer should act as follows:
(a) If the employee can perform in a specific alternative position
available in the agency, and the employer has advised the employee of
the specific duties and physical requirements, the employer should
notify the employee immediately of the date of availability.
(b) If the employee can perform restricted or limited duties, the
employer should determine whether such duties are available or whether
an existing job can be modified. If so, the employer shall advise the
employee of the duties, their physical requirements and availability.
Sec. 10.508 May relocation expenses be paid for an employee who would
need to move to accept an offer of reemployment?
If possible, the employer should offer suitable reemployment in the
location where the employee currently resides. If this is not
practical, the employer may
[[Page 67154]]
offer suitable reemployment at the employee's former duty station or
other location. Where the distance between the location of the offered
job and the location where the employee currently resides is at least
50 miles, OWCP may pay such relocation expenses as are considered
reasonable and necessary if the employee has been terminated from the
agency's employment rolls and would incur relocation expenses by
accepting the offered reemployment. OWCP may also pay such relocation
expenses when the new employer is other than a federal employer. To
determine whether a relocation expense is reasonable and necessary,
OWCP shall use as a guide the federal travel regulations for permanent
changes of duty station.
Sec. 10.509 If an employee's light-duty job is eliminated due to
downsizing, what is the effect on compensation?
(a) In general, an employee will not be considered to have
experienced a compensable recurrence of disability as defined in
Sec. 10.5(x) merely because his or her employer has eliminated the
employee's light-duty position in a reduction-in-force or some other
form of downsizing. When this occurs, OWCP will determine the
employee's wage-earning capacity based on his or her actual earnings in
such light-duty position if this determination is appropriate on the
basis that such earnings fairly and reasonably represent the employee's
wage-earning capacity and such a determination has not already been
made.
(b) For the purposes of this section only, a ``light-duty
position'' means a classified position that conforms to the established
physical restrictions of the injured employee and for which the
employer has already prepared a written position description such that
the position constitutes ``regular'' federal employment. In the absence
of a ``light duty position'' as described in this paragraph, OWCP will
assume that the employee was instead engaged in non-competitive
employment which does not represent the employee's wage-earning
capacity, i.e., work of the type provided to injured employees who
cannot otherwise be employed by the federal government or in any well-
known branch of the general labor market.
Return to Work--Employee's Responsibilities
Sec. 10.515 What actions must the employee take?
(a) If an employee can resume regular federal employment because
total disability has ceased, he or she must do so. No further
compensation for wage loss is payable once the employee has recovered
from the work-related injury to the extent that he or she can perform
the duties of the position held at the time of injury, or earn
equivalent wages.
(b) If an employee cannot return to the job held at the time of
injury due to partial disability from the effects of the work-related
injury, but has recovered enough to perform some type of work, he or
she must accept suitable work. (See Sec. 10.500 for a definition of
``suitable work''.) This work may be with the original employer or
through job placement efforts made by or on behalf of OWCP.
(c) If the employer has advised an employee in writing that
specific alternative positions exist within the agency, the employee
shall provide the description and physical requirements of such
alternate positions to the attending physician and ask whether and when
he or she will be able to perform such duties.
(d) If the employer has advised an employee that it is willing to
accommodate his or her work limitations, the employee shall so advise
the attending physician and ask him or her to specify the limitations
imposed by the injury. The employee is responsible for advising the
employer immediately of these limitations.
(e) From time to time, OWCP may require the employee to report his
or her efforts to obtain suitable employment, whether with the federal
government, state and local governments, or in the private sector.
Sec. 10.516 How will an employee know if OWCP considers a job to be
suitable?
OWCP shall advise the employee that it has found the offered work
to be suitable and afford the employee 30 days to accept the job or
present any reasons to counter OWCP's finding of suitability. If the
employee presents such reasons, and OWCP determines that the reasons
are unacceptable, it will notify the employee of that determination and
that he or she has 15 days in which to accept the offered work without
penalty. At that point in time, OWCP's notification need not state the
reasons for finding that the employee's reasons are not acceptable.
Sec. 10.517 What are the penalties for refusing to accept a suitable
job offer?
(a) 5 U.S.C. 8106(c) provides that a partially disabled employee
who refuses to seek suitable work, or refuses to or neglects to work
after suitable work is offered to or arranged for him or her, is not
entitled to compensation. An employee who refuses or neglects to work
after suitable work has been offered or secured for him or her has the
burden to show that this refusal or failure to work was reasonable or
justified.
(b) After providing the two notices described in Sec. 10.516, OWCP
will terminate the employee's entitlement to further compensation under
5 U.S.C. 8105, 8106, and 8107, as provided by 5 U.S.C. 8106(c)(2).
However, the employee remains entitled to medical benefits as provided
by 5 U.S.C. 8103.
Sec. 10.518 Does OWCP provide services to help employees return to
work?
(a) OWCP may, in its discretion, provide vocational rehabilitation
services as authorized by 5 U.S.C. 8104. These services include
assistance from registered nurses working under the direction of OWCP.
Among other things, these nurses visit the worksite, ensure that the
duties of the position do not exceed the medical limitations as
represented by the weight of medical evidence established by OWCP, and
address any problems the employee may have in adjusting to the work
setting. The nurses do not evaluate medical evidence; OWCP claims staff
perform this function.
(b) Vocational rehabilitation services may also include vocational
evaluation, testing, training, and placement services with either the
original employer or a new employer, when the injured employee cannot
return to the job held at the time of injury. These services also
include functional capacity evaluations, which help to tailor
individual rehabilitation programs to employees' physical
reconditioning and behavioral modification needs, and help employees to
meet the demands of current or potential jobs.
Sec. 10.519 What action will OWCP take if an employee refuses to
undergo vocational rehabilitation?
Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation. If an employee without
good cause fails or refuses to apply for, undergo, participate in, or
continue to participate in a vocational rehabilitation effort when so
directed, OWCP will act as follows:
(a) Where a suitable job has been identified, OWCP will reduce the
employee's future monetary compensation based on the amount which would
likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. OWCP will determine this amount in
accordance with the job identified through the vocational
rehabilitation planning process, which includes
[[Page 67155]]
meetings with the OWCP nurse and the employer. The reduction will
remain in effect until such time as the employee acts in good faith to
comply with the direction of OWCP.
(b) Where a suitable job has not been identified, because the
failure or refusal occurred in the early but necessary stages of a
vocational rehabilitation effort (that is, meetings with the OWCP
nurse, interviews, testing, counseling, functional capacity
evaluations, and work evaluations), OWCP cannot determine what would
have been the employee's wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this
section, in the absence of evidence to the contrary, OWCP will assume
that the vocational rehabilitation effort would have resulted in a
return to work with no loss of wage-earning capacity, and OWCP will
reduce the employee's monetary compensation accordingly (that is, to
zero). This reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.
Sec. 10.520 How does OWCP determine compensation after an employee
completes a vocational rehabilitation program?
After completion of a vocational rehabilitation program, OWCP may
adjust compensation to reflect the injured worker's wage-earning
capacity. Actual earnings will be used if they fairly and reasonably
reflect the earning capacity. The position determined to be the goal of
a training plan is assumed to represent the employee's earning capacity
if it is suitable and performed in sufficient numbers so as to be
reasonably available, whether or not the employee is placed in such a
position.
Reports of Earnings From Employment and Self-Employment
Sec. 10.525 What information must the employee report?
(a) An employee who is receiving compensation for partial or total
disability must advise OWCP immediately of any return to work, either
part-time or full-time. In addition, an employee who is receiving
compensation for partial or total disability will periodically be
required to submit a report of earnings from employment or self-
employment, either part-time or full-time. (See Sec. 10.5(g) for a
definition of ``earnings''.)
(b) The employee must report even those earnings which do not seem
likely to affect his or her level of benefits. Many kinds of income,
though not all, will result in reduction of compensation benefits.
While earning income will not necessarily result in a reduction of
compensation, failure to report income may result in forfeiture of all
benefits paid during the reporting period.
Sec. 10.526 Must the employee report self-employment?
The employee is required to report self-employment, including
volunteer work or any other kind of activity which shows that the
employee is no longer totally disabled for work.
Sec. 10.527 Does OWCP verify reports of earnings?
To make proper determinations of an employee's entitlement to
benefits, OWCP may attempt to verify the earnings reported by the
employee through a variety of means, including but not limited to
computer matches with the Office of Personnel Management and inquiries
to the Social Security Administration. Also, OWCP may perform computer
matches with records of state workers' compensation administrations to
determine whether private employers are paying workers' compensation
insurance premiums for recipients of benefits under the FECA.
Sec. 10.528 What action will OWCP take if the employee fails to file a
report of activity indicating an ability to work?
OWCP periodically requires each employee who is receiving
compensation benefits to complete an affidavit as to any work, or
activity indicating an ability to work, which the employee has
performed for the prior 15 months. If an employee who is required to
file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C.
8105 or 8106 is suspended until OWCP receives the requested report. At
that time, OWCP will reinstate compensation retroactive to the date of
suspension if the employee remains entitled to compensation.
Sec. 10.529 What action will OWCP take if the employee files an
incomplete report?
(a) If an employee knowingly omits or understates any earnings or
work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was
required. A false or evasive statement, omission, concealment, or
misrepresentation with respect to employment activity or earnings in a
report may also subject an employee to criminal prosecution.
(b) Where the right to compensation is forfeited, OWCP shall
recover any compensation already paid for the period of forfeiture
pursuant to 5 U.S.C. 8129 and other relevant statutes.
Reports of Dependents
Sec. 10.535 How are dependents defined, and what information must the
employee report?
(a) Dependents are defined in Sec. 10.405. While the employee has
one or more dependents, the employee's basic compensation for wage loss
or for permanent impairment shall be augmented as provided in 5 U.S.C.
8110. (The rules for death claims are found in Sec. 10.414.)
(b) An employee who is receiving augmented compensation on account
of dependents must advise OWCP immediately of any change in the number
or status of dependents. The employee should also promptly refund to
OWCP any amounts received on account of augmented compensation after
the right to receive augmented compensation has ceased. Any difference
between actual entitlement and the amount already paid beyond the date
entitlement ended is an overpayment of compensation and may be
recovered pursuant to 5 U.S.C. 8129 and other relevant statutes.
(c) An employee who is receiving augmented compensation shall be
periodically required to submit a statement as to any dependents, or to
submit supporting documents such as birth or marriage certificates or
court orders, to determine if he or she is still entitled to augmented
compensation.
Sec. 10.536 What is the penalty for failing to submit a report of
dependents?
If an employee fails to submit a requested statement or supporting
document within 30 days of the date of the request, OWCP will suspend
his or her right to augmented compensation until OWCP receives the
requested statement or supporting document. At that time, OWCP will
reinstate augmented compensation retroactive to the date of suspension,
provided that the employee is entitled to receive augmented
compensation.
Sec. 10.537 What reports are needed when compensation payments
continue for children over age 18?
(a) Compensation payable on behalf of a child that would otherwise
end when the child reaches 18 years of age will continue if and for so
long as he or she is not married and is either a student as defined in
5 U.S.C. 8101(17), or physically or mentally incapable of self-support.
(b) At least twice each year, OWCP will ask an employee who
receives compensation based on the student status of a child to provide
proof of continuing entitlement to such
[[Page 67156]]
compensation, including certification of school enrollment.
(c) Likewise, at least twice each year, OWCP will ask an employee
who receives compensation based on a child's physical or mental
inability to support himself or herself to submit a medical report
verifying that the child's medical condition persists and that it
continues to preclude self-support.
(d) If an employee fails to submit proof within 30 days of the date
of the request, OWCP will suspend the employee's right to compensation
until the requested information is received. At that time OWCP will
reinstate compensation retroactive to the date of suspension, provided
the employee is entitled to such compensation.
Reduction and Termination of Compensation
Sec. 10.540 When and how is compensation reduced or terminated?
(a) Except as provided in paragraphs (b) and (c) of this section,
where the evidence establishes that compensation should be either
reduced or terminated, OWCP will provide the beneficiary with written
notice of the proposed action and give him or her 30 days to submit
relevant evidence or argument to support entitlement to continued
payment of compensation. This notice will include a description of the
reasons for the proposed action and a copy of the evidence upon which
OWCP is basing its determination. Payment of compensation will continue
until any evidence or argument submitted has been reviewed and an
appropriate decision has been issued, or until 30 days have elapsed if
no additional evidence or argument is submitted.
(b) OWCP will not provide such written notice when the beneficiary
has no reasonable basis to expect that payment of compensation will
continue. For example, when a claim has been made for a specific period
of time and that specific period expires, no written notice will be
given. Written notice will also not be given when a beneficiary dies,
when OWCP either reduces or terminates compensation when an employee
returns to work, when OWCP terminates medical benefits only after a
physician indicates that further medical treatment is not necessary or
has ended, or when OWCP denies payment for a particular medical
expense.
(c) OWCP will also not provide such written notice when
compensation is suspended or forfeited due to one of the following: a
beneficiary's conviction for fraud in connection with a claim under the
FECA, a beneficiary's incarceration based on any felony conviction, an
employee's failure to report earnings from employment or self-
employment, an employee's failure or refusal to either continue
performing suitable work or to accept an offer of suitable work, or an
employee's refusal to undergo or obstruction of a directed medical
examination or treatment for substance abuse.
Sec. 10.541 What action will OWCP take after issuing written notice of
its intention to reduce or terminate compensation?
(a) If the beneficiary submits evidence or argument prior to the
issuance of the decision, OWCP will evaluate it in light of the
proposed action and undertake such further development as it may deem
appropriate, if any. Evidence or argument which is repetitious,
cumulative, or irrelevant will not require any further development. If
the beneficiary does not respond within 30 days of the written notice,
OWCP will issue a decision consistent with its prior notice. OWCP will
not grant any request for an extension of this 30-day period.
(b) Evidence or argument which refutes the evidence upon which the
proposed action was based will result in the continued payment of
compensation. If the beneficiary submits evidence or argument which
fails to refute the evidence upon which the proposed action was based
but which requires further development, OWCP will not provide the
beneficiary with another notice of its proposed action upon completion
of such development. Once any further development of the evidence is
completed, OWCP will either continue payment or issue a decision
consistent with its prior notice.
Subpart G--Review Process
Sec. 10.600 How can final decisions of OWCP be reviewed?
There are three methods for reviewing an initial final decision of
the OWCP (Secs. 10.125-10.127 discuss how decisions are made). These
methods are: reconsideration by the district office; a hearing before
an OWCP hearing representative; and appeal to the Employees'
Compensation Appeals Board (ECAB). For each method there are time
limitations and other restrictions which may apply, and not all options
are available for all decisions, so the employee should consult the
requirements set forth below. Further rules governing appeals to ECAB
are found at part 501 of this title.
Reconsiderations and Reviews by the Director
Sec. 10.605 What is reconsideration?
The FECA provides that the Director may review an award for or
against compensation upon application by an employee (or his or her
representative) who receives an adverse decision. The employee shall
exercise this right through a request to the district office. The
request, along with the supporting statements and evidence, is called
the ``application for reconsideration.''
Sec. 10.606 How does a claimant request reconsideration?
(a) An employee (or representative) seeking reconsideration should
send the application for reconsideration to the address as instructed
by OWCP in the final decision.
(b) The application for reconsideration, including all supporting
documents, must:
(1) Be submitted in writing;
(2) Set forth arguments and contain evidence that either:
(i) Shows that OWCP erroneously applied or interpreted a specific
point of law;
(ii) Advances a relevant legal argument not previously considered
by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not
previously considered by OWCP.
Sec. 10.607 What is the deadline for requesting reconsideration?
(a) An application for reconsideration must be sent within one year
of the date of the OWCP decision for which review is sought. If
submitted by mail, the application will be deemed timely if postmarked
by the U.S. Postal Service within the time period allowed. If there is
no such postmark, or it is not legible, other evidence such as (but not
limited to) certified mail receipts, certificate of service, and
affidavits, may be used to establish the mailing date.
(b) OWCP will consider an untimely application for reconsideration
only if the application demonstrates clear evidence of error on the
part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.
Sec. 10.608 How does OWCP decide whether to grant or deny the request
for reconsideration?
(a) A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence and/or argument
that meets at least one of the standards described in
Sec. 10.606(b)(2). If reconsideration is granted, the case is
[[Page 67157]]
reopened and the case is reviewed on its merits (see Sec. 10.609).
(b) Where the request is timely but fails to meet at least one of
the standards described in Sec. 10.606(b)(2), or where the request is
untimely and fails to present any clear evidence of error, OWCP will
deny the application for reconsideration without reopening the case for
a review on the merits. A decision denying an application for
reconsideration cannot be the subject of another application for
reconsideration. The only review for this type of non-merit decision is
an appeal to the ECAB (see Sec. 10.625), and OWCP will not entertain a
request for reconsideration or a hearing on this decision denying
reconsideration.
Sec. 10.609 How does OWCP decide whether new evidence requires
modification of the prior decision?
When application for reconsideration is granted, OWCP will review
the decision for which reconsideration is sought on the merits and
determine whether the new evidence or argument requires modification of
the prior decision.
(a) After OWCP decides to grant reconsideration, but before
undertaking the review, OWCP will send a copy of the reconsideration
application to the employer, which will have 15 days from the date sent
to comment or submit relevant documents. OWCP will provide any such
comments to the employee, who will have 15 days from the date the
comments are sent to him or her within which to comment. If no comments
are received from the employer, OWCP will proceed with the merit review
of the case.
(b) A claims examiner who did not participate in making the
contested decision will conduct the merit review of the claim. When all
evidence has been reviewed, OWCP will issue a new merit decision, based
on all the evidence in the record. A copy of the decision will be
provided to the agency.
(c) An employee dissatisfied with this new merit decision may again
request reconsideration under this subpart or appeal to the ECAB. An
employee may not request a hearing on this decision.
Sec. 10.610 What is a review by the Director?
The FECA specifies that an award for or against payment of
compensation may be reviewed at any time on the Director's own motion.
Such review may be made without regard to whether there is new evidence
or information. If the Director determines that a review of the award
is warranted (including, but not limited to circumstances indicating a
mistake of fact or law or changed conditions), the Director (at any
time and on the basis of existing evidence) may modify, rescind,
decrease or increase compensation previously awarded, or award
compensation previously denied. A review on the Director's own motion
is not subject to a request or petition and none shall be entertained.
(a) The decision whether or not to review an award under this
section is solely within the discretion of the Director. The Director's
exercise of this discretion is not subject to review by the ECAB, nor
can it be the subject of a reconsideration or hearing request.
(b) Where the Director reviews an award on his or her own motion,
any resulting decision is subject as appropriate to reconsideration, a
hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal
to ECAB is limited to a review of the merits of the resulting decision.
The Director's determination to review the award is not reviewable.
Hearings
Sec. 10.615 What is a hearing?
A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats:
an oral hearing or a review of the written record. At the discretion of
the hearing representative, an oral hearing may be conducted by
telephone or teleconference. In addition to the evidence of record, the
employee may submit new evidence to the hearing representative.
Sec. 10.616 How does a claimant obtain a hearing?
(a) A claimant, injured on or after July 4, 1966, who has received
a final adverse decision by the district office may obtain a hearing by
writing to the address specified in the decision. The hearing request
must be sent within 30 days (as determined by postmark or other
carrier's date marking) of the date of the decision for which a hearing
is sought. The claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same
decision.
(b) The claimant may specify the type of hearing desired when
making the original hearing request. If the request does not specify a
format, OWCP will schedule an oral hearing. The claimant can request a
change in the format of the hearing by making a written request to the
Branch of Hearings and Review. A request received by the Branch of
Hearings and Review before either the date OWCP issues notice that the
record is closed for written review, or the date OWCP issues a notice
that OWCP has set a date for an oral hearing, will be granted. A
request received after that date will be subject to OWCP's discretion.
The decision to grant or deny a change of format is not reviewable.
Sec. 10.617 How is an oral hearing conducted?
(a) The hearing representative retains complete discretion to set
the time and place of the hearing, including the amount of time
allotted for the hearing, considering the issues to be resolved.
(b) Unless otherwise directed in writing by the claimant, the
hearing representative will mail a notice of the time and place of the
oral hearing to the claimant and any representative at least 30 days
before the scheduled date. The employer will also be notified at least
30 days before the scheduled date.
(c) The hearing is an informal process, and the hearing
representative is not bound by common law or statutory rules of
evidence, by technical or formal rules of procedure or by section 5 of
the Administrative Procedure Act. During the hearing process, the
claimant may state his or her arguments and present new written
evidence in support of the claim.
(d) Testimony at oral hearings is recorded, then transcribed and
placed in the record. Oral testimony shall be made under oath.
(e) OWCP will furnish a transcript of the oral hearing to the
claimant and the employer, who have 15 days from the date it is sent to
comment. Any comments received from the employer shall be sent to the
claimant, who will be given an additional 15 days to comment from the
date OWCP sends any agency comments.
(f) The hearing remains open for the submittal of additional
evidence until the date the decision is mailed to the claimant's last
known address and to any representative. A copy of the decision will
also be mailed to the employer.
(g) The hearing representative determines the conduct of the oral
hearing and may terminate the hearing at any time he or she determines
that all relevant evidence has been obtained, or because of misbehavior
on the part of the claimant and/or representative at or near the place
of the oral presentation.
Sec. 10.618 How is a review of the written record conducted?
(a) The hearing representative will review the official record and
any additional evidence submitted by the claimant and by the agency.
The hearing representative may also conduct whatever investigation is
deemed necessary. New evidence and arguments may be submitted at any
time up to the
[[Page 67158]]
time the hearing is closed, but it should be submitted as soon as
possible to avoid delaying the hearing process.
(b) The claimant should submit, with his or her application for
review, all evidence or argument that he or she wants to present to the
hearing representative. A copy of all pertinent material will be sent
to the employer, which will have 15 days from the date it is sent to
comment. (Medical evidence is not considered ``pertinent'' for review
and comment by the agency, and it will therefore not be furnished to
the agency. OWCP has sole responsibility for evaluating medical
evidence.) Any comments received from the employer shall be sent to the
claimant, who will be given an additional 15 days to comment from the
date OWCP sends any agency comments.
Sec. 10.619 May subpoenas be issued for witnesses and documents?
A claimant may request a subpoena, but the decision to grant or
deny such a request is within the discretion of the hearing
representative. The hearing representative may issue subpoenas for the
attendance and testimony of witnesses, and for the production of books,
records, correspondence, papers or other relevant documents. Subpoenas
are issued for documents only if they are relevant and cannot be
obtained by other means, and for witnesses only where oral testimony is
the best way to ascertain the facts.
(a) A claimant may request a subpoena only as part of the hearings
process, and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must:
(1) Submit the request in writing and send it to the hearing
representative as early as possible but no later than 60 days (as
evidenced by postmark, electronic marker or other objective date mark)
after the date of the original hearing request.
(2) Explain why the testimony or evidence is directly relevant to
the issues at hand, and a subpoena is the best method or opportunity to
obtain such evidence because there are no other means by which the
documents or testimony could have been obtained.
(b) No subpoena will be issued for attendance of employees of OWCP
acting in their official capacities as decision-makers or policy
administrators. For hearings taking the form of a review of the written
record, no subpoena for the appearance of witnesses will be considered.
(c) The hearing representative issues the subpoena under his or her
own name. It may be served in person or by certified mail, return
receipt requested, addressed to the person to be served at his or her
last known principal place of business or residence. A decision to deny
a subpoena can only be appealed as part of an appeal of any adverse
decision which results from the hearing.
Sec. 10.620 Who pays the costs associated with subpoenas?
(a) Witnesses who are not employees or former employees of the
federal government shall be paid the same fees and mileage as paid for
like services in the District Court of the United States where the
subpoena is returnable, except that expert witnesses shall be paid a
fee not to exceed the local customary fee for such services.
(b) Where OWCP asked that the witness submit evidence into the case
record or asked that the witness attend, OWCP shall pay the fees and
mileage. Where the claimant requested the subpoena, and where the
witness submitted evidence into the record at the request of the
claimant, the claimant shall pay the fees and mileage.
Sec. 10.621 What is the employer's role when an oral hearing has been
requested?
(a) The employer may send a representative to observe the
proceeding, but the agency representative cannot give testimony or
argument or otherwise participate in the hearing, except where the
claimant or the hearing representative specifically asks the agency
representative to testify.
(b) The hearing representative may deny a request by the claimant
that the agency representative testify where the claimant cannot show
that the testimony would be relevant or where the agency representative
does not have the appropriate level of knowledge to provide such
evidence at the hearing. The employer may also comment on the hearing
transcript, as described in Sec. 10.618(b).
Sec. 10.622 May a claimant withdraw a request for or postpone a
hearing?
(a) The claimant and/or representative may withdraw the hearing
request at any time up to and including the day the hearing is held, or
the decision issued. Withdrawing the hearing request means the record
is returned to the jurisdiction of the district office and no further
requests for a hearing on the underlying decision will be considered.
(b) OWCP will entertain any reasonable request for scheduling the
oral hearing, but such requests should be made at the time of the
original request; scheduling is at the sole discretion of the hearing
representative, and is not reviewable. Once the oral hearing is
scheduled and OWCP has mailed appropriate written notice to the
claimant, the oral hearing cannot be postponed at the claimant's
request for any reason, unless the hearing representative can
reschedule the hearing on the same docket (that is, during the same
hearing trip). When the request to postpone a scheduled hearing cannot
be accommodated on the docket, no further opportunity for an oral
hearing will be provided. Instead, the hearing will take the form of a
review of the written record and a decision issued accordingly. In the
alternative, a teleconference may be substituted for the oral hearing
at the discretion of the hearing representative.
Review by the Employees' Compensation Appeals Board (ECAB)
Sec. 10.625 What kinds of decisions may be appealed?
Only final decisions of OWCP may be appealed to the ECAB. However,
certain types of final decisions, described in this part as not subject
to further review, cannot be appealed to the ECAB. Decisions that are
not appealable to the ECAB include: decisions concerning the amounts
payable for medical services, decisions concerning exclusion and
reinstatement of medical providers, decisions by the Director to review
an award on his or her own motion, and denials of subpoenas independent
of the appeal of the underlying decision. In appeals before the ECAB,
attorneys from the Office of the Solicitor of Labor shall represent
OWCP.
Sec. 10.626 Who has jurisdiction of cases on appeal to the ECAB?
While a case is on appeal to the ECAB, OWCP has no jurisdiction
over the claim with respect to issues which directly relate to the
issue or issues on appeal. The OWCP continues to administer the claim
and retains jurisdiction over issues unrelated to the issue or issues
on appeal and issues which arise after the appeal as a result of
ongoing administration of the case. Such issues would include, for
example, the ability to terminate benefits where an individual returns
to work while an appeal is pending at the ECAB.
Subpart H--Special Provisions
Representation
Sec. 10.700 May a claimant designate a representative?
(a) The claims process under the FECA is informal. Unlike many
workers' compensation laws, the employer is not a party to the claim,
and OWCP acts as an impartial evaluator of the evidence. Nevertheless,
a claimant may appoint one individual to represent his or her
[[Page 67159]]
interests, but the appointment must be in writing.
(b) There can be only one representative at any one time, so after
one representative has been properly appointed, OWCP will not recognize
another individual as representative until the claimant withdraws the
authorization of the first individual. In addition, OWCP will recognize
only certain types of individuals (see Sec. 10.701).
(c) A properly appointed representative who is recognized by OWCP
may make a request or give direction to OWCP regarding the claims
process, including a hearing. This authority includes presenting or
eliciting evidence, making arguments on facts or the law, and obtaining
information from the case file, to the same extent as the claimant. Any
notice requirement contained in this subpart or the FECA is fully
satisfied if served on the representative, and has the same force and
effect as if sent to the claimant.
Sec. 10.701 Who may serve as a representative?
A claimant may authorize any individual to represent him or her in
regard to a claim under the FECA, unless that individual's service as a
representative would violate any applicable provision of law (such as
18 U.S.C. 205 and 208). A federal employee may act as a representative
only:
(a) On behalf of immediate family members, defined as a spouse,
children, parents, and siblings of the representative, provided no fee
or gratuity is charged; or
(b) While acting as a union representative, defined as any
officially sanctioned union official, provided such representation
would not conflict with any other provision of law, and no fee or
gratuity is charged.
Sec. 10.702 How are fees for services paid?
A representative may charge the claimant a fee and other costs
associated with the representation before OWCP. The claimant is solely
responsible for paying the fee and other charges. The claimant will not
be reimbursed by OWCP, nor is OWCP in any way liable for the amount of
the fee. Administrative costs (mailing, copying, messenger services,
travel and the like, but not including secretarial services, paralegal
and other activities) need not be approved before the representative
collects them. Before any fee for services can be collected, however,
the fee must be approved by the Secretary. (Collecting a fee without
this approval may constitute a misdemeanor under 18 U.S.C. 292.)
Sec. 10.703 How are fee applications approved?
(a) Fee application. (1) The representative must submit the fee
application to the district office and/or the Branch of Hearings and
Review, according to where the work for which the fee is charged was
performed. The application shall contain the following:
(i) An itemized statement showing the representative's hourly rate,
the number of hours worked and specifically identifying the work
performed and a total amount charged for the representation (excluding
administrative costs).
(ii) A statement of agreement or disagreement with the amount
charged, signed by the claimant. The statement must also acknowledge
that the claimant is aware that he or she must pay the fees and that
OWCP is not responsible for paying the fee or other costs.
(2) An incomplete application will be returned with no further
comment.
(b) Approval where there is no dispute. Where a fee application is
accompanied by a signed statement indicating the claimant's agreement
with the fee as described in paragraph (a)(2) of this section, the
application is deemed approved.
(c) Disputed requests. (1) Where the claimant disagrees with the
amount of the fee, as indicated in the statement accompanying the
submission, OWCP will evaluate the objection and decide whether or not
to approve the request. OWCP will provide a copy of the request to the
claimant and ask him or her to submit any further information in
support of the objection within 15 days from the date the request is
forwarded. After that period has passed, OWCP will evaluate the
information received to determine whether the amount of the fee is
substantially in excess of the value of services received by looking at
the following factors:
(i) Usefulness of the attorney's services;
(ii) The nature and complexity of the claim;
(iii) The actual time spent on development and presentation of the
claim; and
(iv) Customary local charges for similar services.
(2) Where the claimant disputes the attorney's request and files an
objection with OWCP, an appealable decision will be issued.
Third Party Liability
Sec. 10.705 When must an employee or other FECA beneficiary take
action against a third party?
(a) If an injury or death for which benefits are payable under the
FECA is caused, wholly or partially, by someone other than a federal
employee acting within the scope of his or her employment, the claimant
can be required to take action against that third party.
(b) The Office of the Solicitor of Labor (SOL) is hereby delegated
authority to administer the subrogation aspects of certain FECA claims
for OWCP. Either OWCP or SOL can require a FECA beneficiary to assign
his or her claim for damages to the United States or to prosecute the
claim in his or her own name.
Sec. 10.706 How will a beneficiary know if OWCP or SOL has determined
that action against a third party is required?
When OWCP determines that an employee or other FECA beneficiary
must take action against a third party, it will notify the employee or
beneficiary in writing. If the case is transferred to SOL, a second
notification may be issued.
Sec. 10.707 What must a FECA beneficiary who is required to take
action against a third party do to satisfy the requirement that the
claim be ``prosecuted''?
At a minimum, a FECA beneficiary must do the following:
(a) Seek damages for the injury or death from the third party,
either through an attorney or on his or her own behalf;
(b) Either initiate a lawsuit within the appropriate statute of
limitations period or obtain a written release of this obligation from
OWCP or SOL unless recovery is possible through a negotiated settlement
prior to filing suit;
(c) Refuse to settle or dismiss the case for any amount less than
the amount necessary to repay OWCP's refundable disbursements, as
defined in Sec. 10.714, without receiving permission from OWCP or SOL;
(d) Provide periodic status updates and other relevant information
in response to requests from OWCP or SOL;
(e) Submit detailed information about the amount recovered and the
costs of the suit on a ``Statement of Recovery'' form approved by OWCP;
and
(f) Pay any required refund.
[[Page 67160]]
Sec. 10.708 Can a FECA beneficiary who refuses to comply with a
request to assign a claim to the United States or to prosecute the
claim in his or her own name be penalized?
When a FECA beneficiary refuses a request to either assign a claim
or prosecute a claim in his or her own name, OWCP may determine that he
or she has forfeited his or her right to all past or future
compensation for the injury with respect to which the request is made.
Alternatively, OWCP may also suspend the FECA beneficiary's
compensation payments until he or she complies with the request.
Sec. 10.709 What happens if a beneficiary directed by OWCP or SOL to
take action against a third party does not believe that a claim can be
successfully prosecuted at a reasonable cost?
If a beneficiary consults an attorney and is informed that a suit
for damages against a third party for the injury or death for which
benefits are payable is unlikely to prevail or that the costs of such a
suit are not justified by the potential recovery, he or she should
request that OWCP or SOL release him or her from the obligation to
proceed. This request should be in writing and provide evidence of the
attorney's opinion. If OWCP or SOL agrees, the beneficiary will not be
required to take further action against the third party.
Sec. 10.710 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which benefits are
payable under the FECA be reported to OWCP or SOL?
Any person who has filed a FECA claim that has been accepted by
OWCP (whether or not compensation has been paid), or who has received
FECA benefits in connection with a claim filed by another, is required
to notify OWCP or SOL of the receipt of money or other property as a
result of a settlement or judgment in connection with the circumstances
of that claim. This includes an injured employee, and in the case of a
claim involving the death of an employee, a spouse, children or other
dependents entitled to receive survivor's benefits. OWCP or SOL should
be notified in writing within 30 days of the receipt of such money or
other property or the acceptance of the FECA claim, whichever occurs
later.
Sec. 10.711 How much of any settlement or judgment must be paid to the
United States?
The statute permits a FECA beneficiary to retain, as a minimum,
one-fifth of the net amount of money or property remaining after a
reasonable attorney's fee and the costs of litigation have been
deducted from the third-party recovery. The U.S. shares in the
litigation expense by allowing the beneficiary to retain, at the time
of distribution, an amount equivalent to a reasonable attorney's fee
proportionate to the refund due the United States. After the refund
owed to the United States is calculated, the FECA beneficiary retains
any surplus remaining, and this amount is credited, dollar for dollar,
against future compensation for the same injury, as defined in
Sec. 10.719. OWCP will resume the payment of compensation only after
the FECA beneficiary has been awarded compensation which exceeds the
amount of the surplus.
(a) The refund to the United States is calculated as follows, using
the Statement of Recovery form approved by OWCP:
(1) Determine the gross recovery as set forth in Sec. 10.712;
(2) Subtract the amount of attorney's fees actually paid, but not
more than the maximum amount of attorney's fees considered by OWCP or
SOL to be reasonable, from the gross recovery (Subtotal A);
(3) Subtract the costs of litigation, as allowed by OWCP or SOL
(Subtotal B);
(4) Subtract one fifth of Subtotal B from Subtotal B (Subtotal C);
(5) Compare Subtotal C and the refundable disbursements as defined
in Sec. 10.714. Subtotal D is the lower of the two amounts.
(6) Multiply Subtotal D by a percentage that is determined by
dividing the gross recovery into the amount of attorney's fees actually
paid, but not more than the maximum amount of attorney's fees
considered by OWCP or SOL to be reasonable, to determine the
government's allowance for attorney's fees, and subtract this amount
from Subtotal D.
(b) The credit against future benefits (also referred to as the
surplus) is calculated as follows:
(1) If Subtotal C, as calculated according to paragraph (a)(4) of
this section, is less than the refundable disbursements, as defined in
Sec. 10.714, there is no credit to be applied against future benefits;
(2) If Subtotal C is greater than the refundable disbursements, the
credit against future benefits (or surplus) amount is determined by
subtracting the refundable disbursements from Subtotal C.
(c) An example of how these calculations are made follows. In this
example, a federal employee sues another party for causing injuries for
which the employee has received $22,000 in benefits under the FECA,
subject to refund. The suit is settled and the injured employee
receives $100,000, all of which was for his injury. The injured worker
paid attorney's fees of $25,000 and costs for the litigation of $3,000.
(1) Gross recovery........................................... $100,000
Attorney's fees.............................................. -25,000
----------
(2) Subtotal A............................................... 75,000
(3) Costs of suit............................................ -3,000
----------
Subtotal B................................................... -72,000
One-fifth of Subtotal B...................................... -14,400
----------
(4) Subtotal C............................................... 57,600
Refundable Disbursement...................................... 22,000
(5) Subtotal D (lower of Subtotal C or refundable
disbursements).............................................. 22,000
(6) Government's allowance for attorney's fees [25,000/
100,000 x 22,000]........................................... -5,500
----------
(Attorney's fees divided by gross recovery then multiplied by
Subtotal D) Refund to the United States..................... 16,500
(7) Credit against future benefits [57,600-22,000] (Subtotal
C minus refundable disbursements)........................... 35,600
Sec. 10.712 What amounts are included in the gross recovery?
(a) When a settlement or judgment is paid to, or for, one
individual, the entire amount, except for the portion representing
damage to real or personal property, is reported as the gross recovery.
If a settlement or judgment is paid to or for more than one individual
or in more than one capacity, such as a joint payment to a husband and
wife for personal injury and loss of consortium or a payment to a
spouse representing both loss of consortium and wrongful death, the
gross recovery to be reported is the amount allocated to the injured
employee. If a judge or jury specifies the percentage of a contested
verdict attributable to each of several plaintiffs, OWCP or SOL will
accept that division.
(b) In any other case, where a judgment or settlement is paid to or
on behalf of more than one individual, OWCP or SOL will determine the
appropriate amount of the FECA beneficiary's gross recovery and advise
the beneficiary of its determination. FECA beneficiaries may accept
OWCP's or SOL's determination or demonstrate good cause for a different
allocation. Whether to accept a specific allocation is at the
discretion of SOL or OWCP.
[[Page 67161]]
Sec. 10.713 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time) treated
for purposes of reporting the gross recovery?
In this situation, the gross recovery to be reported is the present
value of the right to receive all of the payments included in the
structured settlement, allocated in the case of multiple recipients in
the same manner as single payment recoveries.
Sec. 10.714 What amounts are included in the refundable disbursements?
The refundable disbursements of a specific claim consist of the
total money paid by OWCP from the Employees' Compensation Fund with
respect to that claim to or on behalf of a FECA beneficiary, less
charges for any medical file review (i.e., the physician does not
examine the employee) done at the request of OWCP. Charges for medical
examinations also may be subtracted if the FECA beneficiary establishes
that the examinations were required to be made available to the
employee under a statute other than the FECA by the employing agency or
at the employing agency's cost.
Sec. 10.715 Is a beneficiary required to pay interest on the amount of
the refund due to the United States?
If the refund due to the United States is not submitted within 30
days of receiving a request for payment from SOL or OWCP, interest
shall accrue on the refund due to the United States from the date of
the request. The rate of interest assessed shall be the rate of the
current value of funds to the United States Treasury as published in
the Federal Register (as of the date the request for payment is sent).
Waiver of the collection of interest shall be in accordance with the
provisions of the Department of Labor regulations on Federal Claims
Collection governing waiver of interest, 29 CFR 20.61.
Sec. 10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under the
FECA?
If the required refund is not paid within 30 days of the request
for payment, OWCP can, in its discretion, collect the refund by
withholding all or part of any payments currently payable to the
beneficiary under the FECA with respect to any injury. The waiver
provisions of Secs. 10.432 through 10.440 do not apply to such
determinations.
Sec. 10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by the
FECA a gross recovery that must be reported to OWCP or SOL?
Since an injury caused by medical malpractice in treating an injury
covered by the FECA is also an injury covered under the FECA, any
recovery in a suit alleging such an injury is treated as a gross
recovery that must be reported to OWCP or SOL.
Sec. 10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that must
be reported to OWCP or SOL?
Since payments received by a FECA beneficiary pursuant to an
insurance policy purchased by someone other than a liable third party
are not payments in satisfaction of liability for causing an injury
covered by the FECA, they are not considered a gross recovery covered
by section 8132 that requires filing a Statement of Recovery and paying
any required refund.
Sec. 10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on a
single FECA claim be attributed to different conditions for purposes of
calculating the refund or credit owed to the United States?
(a) All wounds, diseases or other medical conditions accepted by
OWCP in connection with a single claim are treated as the same injury
for the purpose of computing any required refund and any credit against
future benefits in connection with the receipt of a recovery from a
third party, except that an injury caused by medical malpractice in
treating an injury covered under the FECA will be treated as a separate
injury for purposes of section 8132.
(b) If an injury covered under the FECA is caused under
circumstances creating a legal liability in more than one person, other
than the United States, to pay damages, OWCP or SOL will determine
whether recoveries received from one or more third parties should be
attributed to separate conditions for which compensation is payable in
connection with a single FECA claim. If such an attribution is both
practicable and equitable, as determined by OWCP or SOL, in its
discretion, the conditions will be treated as separate injuries for
purposes of calculating the refund and credit owed to the United States
under section 8132.
Federal Grand and Petit Jurors
Sec. 10.725 When is a federal grand or petit juror covered under the
FECA?
(a) Federal grand and petit jurors are covered under the FECA when
they are in performance of duty as a juror, which includes that time
when a juror is:
(1) In attendance at court pursuant to a summons;
(2) In deliberation;
(3) Sequestered by order of a judge; or
(4) At a site, by order of the court, for the taking of a view.
(b) A juror is not considered to be in the performance of duty
while traveling to or from home in connection with the activities
enumerated in paragraphs (a)(1) through (4) of this section.
Sec. 10.726 When does a juror's entitlement to disability compensation
begin?
Pursuant to 28 U.S.C. 1877, entitlement to disability compensation
does not commence until the day after the date of termination of
service as a juror.
Sec. 10.727 What is the pay rate of jurors for compensation purposes?
For the purpose of computing compensation payable for disability or
death, a juror is deemed to receive pay at the minimum rate for Grade
GS-2 of the General Schedule unless his or her actual pay as an
``employee'' of the United States while serving on court leave is
higher, in which case the pay rate for compensation purposes is
determined in accordance with 5 U.S.C. 8114.
Peace Corps Volunteers
Sec. 10.730 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the
United States?
(a) Any injury sustained by a volunteer or volunteer leader while
he or she is located abroad shall be presumed to have been sustained in
the performance of duty, and any illness contracted during such time
shall be presumed to be proximately caused by the employment. However,
this presumption will be rebutted by evidence that:
(1) The injury or illness was caused by the claimant's willful
misconduct, intent to bring about the injury or death of self or
another, or was proximately caused by the intoxication by alcohol or
illegal drugs of the injured claimant; or
(2) The illness is shown to have preexisted the period of service
abroad; or
(3) The injury or illness claimed is a manifestation of symptoms
of, or consequent to, a preexisting congenital defect or abnormality.
[[Page 67162]]
(b) If the presumption that an injury or illness was sustained in
the performance of duty is rebutted as provided by paragraph (a) of
this section, the claimant has the burden of proving by the submittal
of substantial and probative evidence that such injury or illness was
sustained in the performance of duty with the Peace Corps.
(c) If an injury or illness, or episode thereof, comes within one
of the exceptions described in paragraph (a)(2) or (3) of this section,
the claimant may nonetheless be entitled to compensation. This will be
so provided he or she meets the burden of proving by the submittal of
substantial, probative and rationalized medical evidence that the
illness or injury was proximately caused by factors or conditions of
Peace Corps service, or that it was materially aggravated, accelerated
or precipitated by factors of Peace Corps service.
Sec. 10.731 What is the pay rate of Peace Corps volunteers and
volunteer leaders for compensation purposes?
The pay rate for these claimants is defined as the pay rate in
effect on the date following separation, provided that the rate equals
or exceeds the pay rate on the date of injury. It is defined in
accordance with 5 U.S.C. 8142(a), not 8101(4).
Non-Federal Law Enforcement Officers
Sec. 10.735 When is a non-federal law enforcement officer covered
under the FECA?
(a) A law enforcement officer (officer) includes an employee of a
state or local government, the governments of U.S. possessions and
territories, or an employee of the United States pensioned or
pensionable under sections 521-535 of Title 4, D.C. Code, whose
functions include the activities listed in 5 U.S.C. 8191.
(b) Benefits are available to officers who are not ``employees''
under 5 U.S.C. 8101, and who are determined in the discretion of OWCP
to have been engaged in the activities listed in 5 U.S.C. 8191 with
respect to the enforcement of crimes against the United States.
Individuals who only perform administrative functions in support of
officers are not considered officers.
(c) Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in
this part, the provisions of the FECA and of subparts A, B, and D
through I of this part apply to officers.
Sec. 10.736 What are the time limits for filing a claim?
OWCP must receive a claim for benefits under 5 U.S.C. 8191 within
five years after the injury or death. This five-year limitation is not
subject to waiver. The tolling provisions of 5 U.S.C. 8122(d) do not
apply to these claims.
Sec. 10.737 How is a claim filed, and who can file a claim?
A claim for injury or occupational disease should be filed on Form
CA-721; a death claim should be filed on Form CA-722. All claims should
be submitted to the officer's employer for completion and forwarding to
OWCP. A claim may be filed by the officer, the officer's survivor, or
any person or association authorized to act on behalf of an officer or
an officer's survivors.
Sec. 10.738 Under what circumstances are benefits payable?
(a) Benefits are payable when an officer is injured while
apprehending, or attempting to apprehend, an individual for the
commission of a federal crime. However, either an actual federal crime
must be in progress or have been committed, or objective evidence (of
which the officer is aware at the time of injury) must exist that a
potential federal crime was in progress or had already been committed.
The actual or potential federal crime must be an integral part of the
criminal activity toward which the officer's actions are directed. The
fact that an injury to an officer is related in some way to the
commission of a federal crime does not necessarily bring the injury
within the coverage of the FECA. The FECA is not intended to cover
officers who are merely enforcing local laws.
(b) For benefits to be payable when an officer is injured
preventing, or attempting to prevent, a federal crime, there must be
objective evidence that a federal crime is about to be committed. An
officer's belief, unsupported by objective evidence, that he or she is
acting to prevent the commission of a federal crime will not result in
coverage. Moreover, the officer's subjective intent, as measured by all
available evidence (including the officer's own statements and
testimony, if available), must have been directed toward the prevention
of a federal crime. In this context, an officer's own statements and
testimony are relevant to, but do not control, the determination of
coverage.
Sec. 10.739 What kind of objective evidence of a potential federal
crime must exist for coverage to be extended?
Based on the facts available at the time of the event, the officer
must have an awareness of sufficient information which would lead a
reasonable officer, under the circumstances, to conclude that a federal
crime was in progress, or was about to occur. This awareness need not
extend to the precise particulars of the crime (the section of Title
18, United States Code, for example), but there must be sufficient
evidence that the officer was in fact engaged in actual or attempted
apprehension of a federal criminal or prevention of a federal crime.
Sec. 10.740 In what situations will OWCP automatically presume that a
law enforcement officer is covered by the FECA?
(a) Where an officer is detailed by a competent state or local
authority to assist a federal law enforcement authority in the
protection of the President of the United States, or any other person
actually provided or entitled to U.S. Secret Service protection,
coverage will be extended.
(b) Coverage for officers of the U.S. Park Police and those
officers of the Uniformed Division of the U.S. Secret Service who
participate in the District of Columbia Retirement System is
adjudicated under the principles set forth in paragraph (a) of this
section, and does not extend to numerous tangential activities of law
enforcement (for example, reporting to work, changing clothes).
However, officers of the Non-Uniformed Division of the U.S. Secret
Service who participate in the District of Columbia Retirement System
are covered under the FECA during the performance of all official
duties.
Sec. 10.741 How are benefits calculated?
(a) Except for continuation of pay, eligible officers and survivors
are entitled to the same benefits as if the officer had been an
employee under 5 U.S.C. 8101. However, such benefits may be reduced or
adjusted as OWCP in its discretion may deem appropriate to reflect
comparable benefits which the officer or survivor received or would
have been entitled to receive by virtue of the officer's employment.
(b) For the purpose of this section, a comparable benefit includes
any benefit that the officer or survivor is entitled to receive because
of the officer's employment, including pension and disability funds,
state workers' compensation payments, Public Safety Officers' Benefits
Act payments, and state and local lump sum payments. Health benefits
coverage and proceeds of life insurance policies purchased by the
employer are not considered to be comparable benefits.
(c) The FECA provides that, where an officer receives comparable
benefits,
[[Page 67163]]
compensation benefits are to be reduced proportionally in a manner that
reflects the relative percentage contribution of the officer and the
officer's employer to the fund which is the source of the comparable
benefit. Where the source of the comparable benefit is a retirement or
other system which is not fully funded, the calculation of the amount
of the reduction will be based on a per capita comparison between the
contribution by the employer and the contribution by all covered
officers during the year prior to the officer's injury or death.
(d) The non-receipt of compensation during a period where a dual
benefit (such as a lump sum payment on the death of an officer) is
being offset against compensation entitlement does not result in an
adjustment of the respective benefit percentages of remaining
beneficiaries because of a cessation of compensation under 5 U.S.C.
8133(c).
Subpart I--Information for Medical Providers
Medical Records and Bills
Sec. 10.800 What kind of medical records must providers keep?
Agency medical officers, private physicians and hospitals are
required to keep records of all cases treated by them under the FECA so
they can supply OWCP with a history of the injury, a description of the
nature and extent of injury, the results of any diagnostic studies
performed, the nature of the treatment rendered and the degree of any
impairment arising from the injury.
Sec. 10.801 How are medical bills to be submitted?
(a) All charges for medical and surgical treatment, appliances or
supplies furnished to injured employees, except for treatment and
supplies provided by nursing homes, shall be supported by medical
evidence as provided in Sec. 10.800. The physician or provider shall
itemize the charges on the standard Health Insurance Claim Form, HCFA
1500 or OWCP 1500, (for professional charges), the UB-92 (for
hospitals), the Universal Claim Form (for pharmacies), or other form as
warranted, and submit the form promptly to OWCP.
(b) The provider shall identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the Health Care
Financing Administration Common Procedure Coding System (HCPCS) code,
the National Drug Code (NDC), or the Revenue Center Code (RCC), with a
brief narrative description. Where no code is applicable, a detailed
description of services performed should be provided.
(c) The provider shall also state each diagnosed condition and
furnish the corresponding diagnostic code using the ``International
Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-
CM), or as revised. A separate bill shall be submitted when the
employee is discharged from treatment or monthly, if treatment for the
work-related condition is necessary for more than 30 days.
(1)(i) Hospitals shall submit charges for medical and surgical
treatment or supplies promptly to OWCP on the Uniform Bill (UB-92). The
provider shall identify each outpatient radiology service, outpatient
pathology service and physical therapy service performed, using HCPCS/
CPT codes with a brief narrative description. The charge for each
individual service, or the total charge for all identical services,
should also appear in the UB-92.
(ii) Other outpatient hospital services for which HCPCS/CPT codes
exist shall also be coded individually using the coding scheme noted in
this paragraph. Services for which there are no HCPCS/CPT codes
available can be presented using the RCCs described in the ``National
Uniform Billing Data Elements Specifications'', current edition. The
provider shall also furnish the diagnostic code using the ICD-9-CM. If
the outpatient hospital services include surgical and/or invasive
procedures, the provider shall code each procedure using the proper
CPT/HCPCS codes and furnishing the corresponding diagnostic codes using
the ICD-9-CM.
(2) Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on the Universal Claim Form and submit them
promptly to OWCP. Bills for prescription medications must include the
NDC assigned to the product, the generic or trade name of the drug
provided, the prescription number, the quantity provided, and the date
the prescription was filled.
(3) Nursing homes shall itemize charges for appliances, supplies or
services on the provider's billhead stationery and submit them promptly
to OWCP.
(d) By submitting a bill and/or accepting payment, the provider
signifies that the service for which reimbursement is sought was
performed as described and was necessary. In addition, the provider
thereby agrees to comply with all regulations set forth in this subpart
concerning the rendering of treatment and/or the process for seeking
reimbursement for medical services, including the limitation imposed on
the amount to be paid for such services.
(e) Bills submitted by providers must: be itemized on the Health
Insurance Claim Form (for physicians), the UB-92 (for hospitals), or
the Universal Claim Form (for pharmacies); contain the signature or
signature stamp of the provider; and identify the procedures using
HCPCS/CPT codes, RCCs, or NDCs. Otherwise, OWCP may return the bill to
the provider for correction and resubmission.
Sec. 10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
(a) If an employee has paid bills for medical, surgical or dental
services, supplies or appliances due to an injury sustained in the
performance of duty, he or she may submit an itemized bill on the
Health Insurance Claim Form, HCFA 1500 or OWCP 1500, together with a
medical report as provided in Sec. 10.800, to OWCP for consideration.
(1) The provider of such service shall state each diagnosed
condition and furnish the applicable ICD-9-CM code and identify each
service performed using the applicable HCPCS/CPT code, with a brief
narrative description of the service performed, or, where no code is
applicable, a detailed description of that service.
(2) The bill must be accompanied by evidence that the provider
received payment for the service from the employee and a statement of
the amount paid. Acceptable evidence that payment was received
includes, but is not limited to, a signed statement by the provider, a
mechanical stamp or other device showing receipt of payment, a copy of
the employee's canceled check (both front and back) or a copy of the
employee's credit card receipt.
(b) If services were provided by a hospital, pharmacy or nursing
home, the employee should submit the bill in accordance with the
provisions of Sec. 10.801(a). Any request for reimbursement must be
accompanied by evidence, as described in paragraph (a) of this section,
that the provider received payment for the service from the employee
and a statement of the amount paid.
(c) OWCP may waive the requirements of paragraphs (a) and (b) of
this section if extensive delays in the filing or the adjudication of a
claim make it unusually difficult for the employee to obtain the
required information.
(d) OWCP will not accept copies of bills for reimbursement unless
they bear the original signature of the provider,
[[Page 67164]]
with evidence of payment. Payment for medical and surgical treatment,
appliances or supplies shall in general be no greater than the maximum
allowable charge for such service determined by the Director, as set
forth in Sec. 10.805.
(e) An employee will be only partially reimbursed for a medical
expense if the amount he or she paid to a provider for the service
exceeds the maximum allowable charge set by the Director's schedule. In
this instance, OWCP shall advise the provider of the maximum allowable
charge for the service in question and allow the provider the
opportunity to refund to the employee, or credit to the employee's
account the amount paid by the employee which exceeds the maximum
allowable charge, or request reconsideration of the fee determination
as provided by Sec. 10.812.
(f) If the provider fails to make appropriate refund to the
employee, or to credit the employee's account, within 60 days after the
date of this notification by OWCP, or the date of a subsequent
reconsideration decision which continues to disallow all or a portion
of the appealed amount, OWCP shall initiate exclusion procedures as
provided by Sec. 10.815.
(g) After notification as provided in paragraph (e) of this
section, OWCP may make reasonable reimbursement to the employee, based
on a review of the facts and circumstances of the case, if the provider
does not refund or credit to the employee's account the amount of money
paid in excess of the charge allowed by OWCP.
Sec. 10.803 What are the time limitations on OWCP's payment of bills?
OWCP will pay providers and reimburse employees promptly for all
bills received on an approved form and in a timely manner. However, no
bill will be paid for expenses incurred if the bill is submitted more
than one year beyond the end of the calendar year in which the expense
was incurred or the service or supply was provided, or more than one
year beyond the end of the calendar year in which the claim was first
accepted as compensable by OWCP, whichever is later.
Medical Fee Schedule
Sec. 10.805 What services are covered by the OWCP fee schedule?
(a) Payment for medical and other health services furnished by
physicians, hospitals and other providers for work-related injuries
shall not exceed a maximum allowable charge for such service as
determined by the Director, except as provided in this section.
(b) The schedule of maximum allowable charges does not apply to
charges for services provided in nursing homes, but it does apply to
charges for treatment furnished in a nursing home by a physician or
other medical professional.
(c) The schedule of maximum allowable charges also does not apply
to charges for appliances, supplies, services or treatment furnished by
medical facilities of the U.S. Public Health Service or the Departments
of the Army, Navy, Air Force and Veterans Affairs.
Sec. 10.806 How are the maximum fees defined?
For professional medical services, the Director shall maintain a
schedule of maximum allowable fees for procedures performed in a given
locality. The schedule shall consist of: an assignment of a value to
procedures identified by Health Care Financing Administration Common
Procedure Coding System/Current Procedural Terminology (HCPCS/CPT) code
which represents the relative skill, effort, risk and time required to
perform the procedure, as compared to other procedures of the same
general class; an index based on a relative value scale that considers
skill, labor, overhead, malpractice insurance and other related costs;
and a monetary value assignment (conversion factor) for one unit of
value in each of the categories of service.
Sec. 10.807 How are payments for particular services calculated?
Payment for a procedure identified by a HCPCS/CPT code shall not
exceed the amount derived by multiplying the relative values for that
procedure by the geographic indices for services in that area and by
the dollar amount assigned to one unit in that category of service.
(a) The ``locality'' which serves as a basis for the determination
of average cost is defined by the Bureau of Census Metropolitan
Statistical Areas. The Director shall base the determination of the
relative per capita cost of medical care in a locality using
information about enrollment and medical cost per county, provided by
the Health Care Financing Administration (HCFA).
(b) The Director shall assign the relative value units (RVUs)
published by HCFA to all services for which HCFA has made assignments,
using the most recent revision. Where there are no RVUs assigned to a
procedure, the Director may develop and assign any RVUs that he or she
considers appropriate. The geographic adjustment factor shall be that
designated by Geographic Practice Cost Indices for Metropolitan
Statistical Areas as devised for HCFA and as updated or revised by HCFA
from time to time. The Director will devise conversion factors for each
category of service, and in doing so may adapt HCFA conversion factors
as appropriate using OWCP's processing experience and internal data.
(c) For example, if the unit values for a particular surgical
procedure are 2.48 for physician's work (W), 3.63 for practice expense
(PE), and 0.48 for malpractice insurance (M), and the dollar value
assigned to one unit in that category of service (surgery) is $61.20,
then the maximum allowable charge for one performance of that procedure
is the product of the three RVUs times the corresponding geographical
indices for the locality times the conversion factor. If the geographic
indices for the locality are 0.988 (W), 0.948 (PE), and 1.174 (M), then
the maximum payment calculation is:
[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20
[2.45 + 3.44 + .56] x $61.20
6.45 x $61.20 = $394.74
Sec. 10.808 Does the fee schedule apply to every kind of procedure?
Where the time, effort and skill required to perform a particular
procedure varies widely from one occasion to the next, the Director may
choose not to assign a relative value to that procedure. In this case
the allowable charge for the procedure will be set individually based
on consideration of a detailed medical report and other evidence. At
its discretion, OWCP may set fees without regard to schedule limits for
specially authorized consultant examinations, for examinations
performed under 5 U.S.C. 8123, and for other specially authorized
services.
Sec. 10.809 How are payments for medicinal drugs determined?
Payment for medicinal drugs prescribed by physicians shall not
exceed the amount derived by multiplying the average wholesale price of
the medication by the quantity or amount provided, plus a dispensing
fee.
(a) All prescription medications identified by National Drug Code
(NDC) will be assigned an average wholesale price representing the
product's nationally recognized wholesale price as determined by
surveys of manufacturers and wholesalers. The Director will establish
the dispensing fee.
(b) The NDCs, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.
[[Page 67165]]
Sec. 10.810 How are payments for inpatient medical services
determined?
(a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Prospective Payment
System (PPS) devised by HCFA (42 CFR parts 412, 413, 424, 485, and
489). Using this system, payment is derived by multiplying the
diagnosis-related group (DRG) weight assigned to the hospital discharge
by the provider-specific factors.
(1) All hospital discharges will be classified according to the
DRGs prescribed by the HCFA in the form of the DRG Grouper software
program. On this list, each DRG represents the average resources
necessary to provide care in a case in that DRG relative to the
national average of resources consumed per case.
(2) The provider-specific factors will be provided by HCFA in the
form of their PPS Pricer software program. The software takes into
consideration the type of facility, census division, actual geographic
location (MSA) of the hospital, case mix cost per discharge, number of
hospital beds, intern/beds ratio, operating cost to charge ratio, and
other factors used by HCFA to determine the specific rate for a
hospital discharge under their PPS. The Director may devise pricer
adjustment factors as appropriate using OWCP's processing experience
and internal data.
(3) OWCP will base payments to facilities excluded from HCFA's PPS
on consideration of detailed medical reports and other evidence.
(4) The Director shall review the pre-determined hospital rates at
least once a year, and may adjust any or all components when he or she
deems it necessary or appropriate.
(b) The Director shall review the schedule of fees at least once a
year, and may adjust the schedule or any of its components when he or
she deems it necessary or appropriate.
Sec. 10.811 When and how are fees reduced?
(a) OWCP shall accept a provider's designation of the code to
identify a billed procedure or service if the code is consistent with
medical reports and other evidence. Where no code is supplied, OWCP may
determine the code based on the narrative description of the procedure
on the billing form and in associated medical reports. OWCP will pay no
more than the maximum allowable fee for that procedure.
(b) If the charge submitted for a service supplied to an injured
employee exceeds the maximum amount determined to be reasonable
according to the schedule, OWCP shall pay the amount allowed by the
schedule for that service and shall notify the provider in writing that
payment was reduced for that service in accordance with the schedule.
OWCP shall also notify the provider of the method for requesting
reconsideration of the balance of the charge.
Sec. 10.812 If OWCP reduces a fee, may a provider request
reconsideration of the reduction?
(a) A physician or other provider whose charge for service is only
partially paid because it exceeds a maximum allowable amount set by the
Director may, within 30 days, request reconsideration of the fee
determination.
(1) The provider should make such a request to the OWCP district
office with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
incorrectly identified by the original code, that the presence of a
severe or concomitant medical condition made treatment especially
difficult, or that the provider possessed unusual qualifications. In
itself, board-certification in a specialty is not sufficient evidence
of unusual qualifications to justify an exception. These are the only
three circumstances which will justify reevaluation of the paid amount.
(2) A list of OWCP district offices and their respective areas of
jurisdiction is available upon request from the U.S. Department of
Labor, Office of Workers' Compensation Programs, Washington, D. C.
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.
(b) If the OWCP district office issues a decision which continues
to disallow a contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the OWCP district office.
The application must be filed within 30 days of the date of such
decision, and it may be accompanied by additional evidence. Within 60
days of receipt of such application, the Regional Director shall issue
a decision in writing stating whether or not an additional amount will
be allowed as reasonable, considering the evidence submitted. This
decision shall be final, and shall not be subject to further review.
Sec. 10.813 If OWCP reduces a fee, may a provider bill the claimant
for the balance?
A provider whose fee for service is partially paid by OWCP as a
result of the application of its fee schedule or other tests for
reasonableness in accordance with this subpart shall not request
reimbursement from the employee for additional amounts.
(a) Where a provider's fee for a particular service or procedure is
lower to the general public than as provided by the schedule of maximum
allowable charges, the provider shall bill at the lower rate. A fee for
a particular service or procedure which is higher than the provider's
fee to the general public for that same service or procedure will be
considered a charge ``substantially in excess of such provider's
customary charges'' for the purposes of Sec. 10.815(d).
(b) A provider whose fee for service is partially paid by OWCP as
the result of the application of the schedule of maximum allowable
charges and who collects or attempts to collect from the employee,
either directly or through a collection agent, any amount in excess of
the charge allowed by OWCP, and who does not cease such action or make
appropriate refund to the employee within 60 days of the date of the
decision of OWCP, shall be subject to the exclusion procedures provided
by Sec. 10.815(h).
Exclusion of Providers
Sec. 10.815 What are the grounds for excluding a provider from payment
under the FECA?
A physician, hospital, or provider of medical services or supplies
shall be excluded from payment under the FECA if such physician,
hospital or provider has:
(a) Been convicted under any criminal statute of fraudulent
activities in connection with any federal or state program for which
payments are made to providers for similar medical, surgical or
hospital services, appliances or supplies;
(b) Been excluded or suspended, or has resigned in lieu of
exclusion or suspension, from participation in any federal or state
program referred to in paragraph (a) of this section;
(c) Knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact in connection with a determination
of the right to reimbursement under the FECA, or in connection with a
request for payment;
(d) Submitted, or caused to be submitted, three or more bills or
requests for payment within a twelve-month period under this subpart
containing charges which the Director finds to be substantially in
excess of such provider's customary charges, unless the Director finds
there is good
[[Page 67166]]
cause for the bills or requests containing such charges;
(e) Knowingly failed to timely reimburse employees for treatment,
services or supplies furnished under this subpart paid by OWCP;
(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 OWCP for additional reports or information,
as required by the FECA and Sec. 10.800 of this subpart;
(g) Knowingly furnished treatment, services or supplies which are
substantially in excess of the employee's needs, or of a quality which
fails to meet professionally recognized standards; or
(h) Collected or attempted to collect from the employee, either
directly or through a collection agent, an amount in excess of the
charge allowed by OWCP for the procedure performed, and has failed or
refused to make appropriate refund to the employee, or to cease such
collection attempts, within 60 days of the date of the decision of
OWCP.
Sec. 10.816 What will cause OWCP to automatically exclude a physician
or other provider of medical services and supplies?
(a) OWCP shall automatically exclude a physician, hospital, or
provider of medical services or supplies who has been convicted of a
crime described in Sec. 10.815(a), or has been excluded or suspended,
or has resigned in lieu of exclusion or suspension, from participation
in any program as described in Sec. 10.815(b).
(b) The exclusion applies to participating in the program and to
seeking payment under the FECA for services performed after the date of
the entry of the judgment of conviction or order of exclusion,
suspension or resignation, as the case may be, by the court or agency
concerned. Proof of the conviction, exclusion, suspension or
resignation may be by a copy thereof authenticated by the seal of the
court or agency concerned.
Sec. 10.817 When are OWCP's exclusion procedures initiated?
Upon receipt of information indicating that a physician, hospital
or provider of medical services or supplies (hereinafter the provider)
has engaged in activities enumerated in paragraphs (c) through (h) of
Sec. 10.815, the Regional Director, after completion of inquiries he or
she deems appropriate, may initiate procedures to exclude the provider
from participation in the FECA program. For the purposes of this
section, ``Regional Director'' may include any officer designated to
act on his or her behalf.
Sec. 10.818 How is a provider notified of OWCP's intent to exclude him
or her?
The Regional Director shall initiate the exclusion process by
sending the provider a letter, by certified mail and with return
receipt requested, which shall contain the following:
(a) A concise statement of the grounds upon which exclusion shall
be based;
(b) A summary of the information, with supporting documentation,
upon which the Regional Director has relied in reaching an initial
decision that exclusion proceedings should begin;
(c) An invitation to the provider to:
(1) Resign voluntarily from participation in the FECA program
without admitting or denying the allegations presented in the letter;
or
(2) Request that the decision on exclusion be based upon the
existing record and any additional documentary information the provider
may wish to provide;
(d) A notice of the provider's right, in the event of an adverse
ruling by the Regional Director, to request a formal hearing before an
administrative law judge;
(e) A notice that should the provider fail to answer (as described
in Sec. 10.819) the letter of intent within 30 calendar days of
receipt, the Regional Director may deem the allegations made therein to
be true and may order exclusion of the provider without conducting any
further proceedings; and
(f) The name and address of the OWCP representative who shall be
responsible for receiving the answer from the provider.
Sec. 10.819 What requirements must the provider's reply and OWCP's
decision meet?
(a) The provider's answer shall be in writing and shall include an
answer to OWCP's invitation to resign voluntarily. If the provider does
not offer to resign, he or she shall request that a determination be
made upon the existing record and any additional information provided.
(b) Should the provider fail to answer the letter of intent within
30 calendar days of receipt, the Regional Director may deem the
allegations made therein to be true and may order exclusion of the
provider.
(c) By arrangement with the official representative, the provider
may inspect or request copies of information in the record at any time
prior to the Regional Director's decision.
(d) The Regional Director shall issue his or her decision in
writing, and shall send a copy of the decision to the provider by
certified mail, return receipt requested. The decision shall advise the
provider of his or her right to request, within 30 days of the date of
the adverse decision, a formal hearing before an administrative law
judge under the procedures set forth in Sec. 10.820. The filing of a
request for a hearing within the time specified shall stay the
effectiveness of the decision to exclude.
Sec. 10.820 How can an excluded provider request a hearing?
A request for a hearing shall be sent to the official
representative named under Sec. 10.818(f) and shall contain:
(a) A concise notice of the issues on which the provider desires to
give evidence at the hearing;
(b) Any request for a more definite statement by OWCP;
(c) Any request for the presentation of oral argument or evidence;
and
(d) Any request for a certification of questions concerning
professional medical standards, medical ethics or medical regulation
for an advisory opinion from a competent recognized professional
organization or federal, state or local regulatory body.
Sec. 10.821 How are hearings assigned and scheduled?
(a) If the designated OWCP representative receives a timely request
for hearing, the OWCP representative shall refer the matter to the
Chief Administrative Law Judge of the Department of Labor, who shall
assign it for an expedited hearing. The administrative law judge
assigned to the matter shall consider the request for hearing, act on
all requests therein, and issue a Notice of Hearing and Hearing
Schedule for the conduct of the hearing. A copy of the hearing notice
shall be served on the provider by certified mail, return receipt
requested. The Notice of Hearing and Hearing Schedule shall include:
(1) A ruling on each item raised in the request for hearing;
(2) A schedule for the prompt disposition of all preliminary
matters, including requests for more definite statements and for the
certification of questions to advisory bodies; and
(3) A scheduled hearing date not less than 30 days after the date
the schedule is issued, and not less than 15 days after the scheduled
conclusion of preliminary matters, provided that the specific time and
place of the hearing may be set on 10 days' notice.
(b) The purpose of the designation of issues is to provide for an
effective hearing process. The provider is entitled to be heard on any
matter placed in issue by his or her response to the Notice of Intent
to Exclude, and may designate ``all issues'' for purposes of
[[Page 67167]]
hearing. However, a specific designation of issues is required if the
provider wishes to interpose affirmative defenses, or request the
issuance of subpoenas or the certification of questions for an advisory
opinion.
Sec. 10.822 How are subpoenas or advisory opinions obtained?
(a) The provider may apply to the administrative law judge for the
issuance of subpoenas upon a showing of good cause therefor.
(b) A certification of a request for an advisory opinion concerning
professional medical standards, medical ethics or medical regulation to
a competent recognized or professional organization or federal, state
or local regulatory agency may be made:
(1) As to an issue properly designated by the provider, in the
sound discretion of the administrative law judge, provided that the
request will not unduly delay the proceedings;
(2) By OWCP on its own motion either before or after the
institution of proceedings, and the results thereof shall be made
available to the provider at the time that proceedings are instituted
or, if after the proceedings are instituted, within a reasonable time
after receipt. The opinion, if rendered by the organization or agency,
is advisory only and not binding on the administrative law judge.
Sec. 10.823 How will the administrative law judge conduct the hearing
and issue the recommended decision?
(a) To the extent appropriate, proceedings before the
administrative law judge shall be governed by 29 CFR part 18.
(b) The administrative law judge shall receive such relevant
evidence as may be adduced at the hearing. Evidence shall be presented
under oath, orally or in the form of written statements. The
administrative law judge shall consider the Notice and Response,
including all pertinent documents accompanying them, and may also
consider any evidence which refers to the provider or to any claim with
respect to which the provider has provided medical services, hospital
services, or medical services and supplies, and such other evidence as
the administrative law judge may determine to be necessary or useful in
evaluating the matter.
(c) All hearings shall be recorded and the original of the complete
transcript shall become a permanent part of the official record of the
proceedings.
(d) Pursuant to 5 U.S.C. 8126, the administrative law judge may:
(1) Issue subpoenas for and compel the attendance of witnesses
within a radius of 100 miles;
(2) Administer oaths;
(3) Examine witnesses; and
(4) Require the production of books, papers, documents, and other
evidence with respect to the proceedings.
(e) At the conclusion of the hearing, the administrative law judge
shall issue a written decision and cause it to be served on all parties
to the proceeding, their representatives and the Director.
Sec. 10.824 How can a party request review by the Director of the
administrative law judge's recommended decision?
(a) Any party adversely affected or aggrieved by the decision of
the administrative law judge may file a petition for discretionary
review with the Director within 30 days after issuance of such
decision. The administrative law judge's decision, however, shall be
effective on the date issued and shall not be stayed except upon order
of the Director.
(b) Review by the Director shall not be a matter of right but of
the sound discretion of the Director.
(c) Petitions for discretionary review shall be filed only upon one
or more of the following grounds:
(1) A finding or conclusion of material fact is not supported by
substantial evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law or to the duly promulgated
rules or decisions of the Director;
(4) A substantial question of law, policy, or discretion is
involved; or
(5) A prejudicial error of procedure was committed.
(d) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
record when assignments of error are based on the record, and by
statutes, regulations or principal authorities relied upon. Except for
good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass.
(e) A statement in opposition to the petition for discretionary
review may be filed, but such filing shall in no way delay action on
the petition.
(f) If a petition is granted, review shall be limited to the
questions raised by the petition.
(g) A petition not granted within 20 days after receipt of the
petition is deemed denied.
(h) The decision of the Director shall be final with respect to the
provider's participation in the program, and shall not be subject to
further review by any court or agency.
Sec. 10.825 What are the effects of exclusion?
(a) OWCP shall give notice of the exclusion of a physician,
hospital or provider of medical services or supplies to:
(1) All OWCP district offices;
(2) All federal employers;
(3) The HCFA;
(4) The State or Local authority responsible for licensing or
certifying the excluded party; and
(5) All employees who are known to have had treatment, services or
supplies from the excluded provider within the six-month period
immediately preceding the order of exclusion.
(b) Notwithstanding any exclusion of a physician, hospital, or
provider of medical services or supplies under this subpart, OWCP shall
not refuse an employee reimbursement for any otherwise reimbursable
medical treatment, service or supply if:
(1) Such treatment, service or supply was rendered in an emergency
by an excluded physician; or
(2) The employee could not reasonably have been expected to have
known of such exclusion.
(c) An employee who is notified that his or her attending physician
has been excluded shall have a new right to select a qualified
physician.
Sec. 10.826 How can an excluded provider be reinstated?
(a) If a physician, hospital, or provider of medical services or
supplies has been automatically excluded pursuant to Sec. 10.816, the
provider excluded will automatically be reinstated upon notice to OWCP
that the conviction or exclusion which formed the basis of the
automatic exclusion has been reversed or withdrawn. However, an
automatic reinstatement shall not preclude OWCP from instituting
exclusion proceedings based upon the underlying facts of the matter.
(b) A physician, hospital, or provider of medical services or
supplies excluded from participation as a result of an order issued
pursuant to this subpart may apply for reinstatement one year after the
entry of the order of exclusion, unless the order expressly provides
for a shorter period. An application for reinstatement shall be
addressed to the Director for Federal Employees' Compensation, and
shall contain a concise statement of the basis for the application. The
application should be accompanied by supporting documents and
affidavits.
(c) A request for reinstatement may be accompanied by a request for
oral argument. Oral argument will be allowed only in unusual
circumstances where it will materially aid the decision process.
[[Page 67168]]
(d) The Director for Federal Employees' Compensation shall order
reinstatement only in instances where such reinstatement is clearly
consistent with the goal of this subpart to protect the FECA program
against fraud and abuse. To satisfy this requirement the provider must
provide reasonable assurances that the basis for the exclusion will not
be repeated.
2. It is proposed that part 25 be revised to read as follows:
PART 25--COMPENSATION FOR DISABILITY AND DEATH OF NONCITIZEN
FEDERAL EMPLOYEES OUTSIDE THE UNITED STATES
Subpart A--General Provisions
25.1 How are claims of federal employees who are neither citizens
nor residents adjudicated?
25.2 In general, what is the Director's policy regarding such
claims?
25.3 What is the authority to settle and pay such claims?
25.4 What type of evidence is required to establish a claim under
this part?
25.5 What special rules does OWCP apply to claims of third and
fourth country nationals?
25.6 How does OWCP adjudicate claims of non-citizen residents of
possessions?
Subpart B--The Special Schedule of Compensation
25.100 How is compensation for disability paid?
25.101 How is compensation for death paid?
25.102 What general provisions does OWCP apply to the Special
Schedule?
Subpart C--Extensions of the Special Schedule of Compensation
25.200 How is the Special Schedule applied in the Republic of the
Philippines?
25.201 How is the Special Schedule applied in Australia?
25.202 How is the Special Schedule applied for Japanese seamen?
25.203 How is the Special Schedule applied to non-resident aliens
in the Territory of Guam?
Authority: 5 U.S.C. 301, 8137, 8145 and 8149; 1946
Reorganization Plan No. 2, sec. 3, 3 CFR 1943-1948 Comp., p. 1064;
60 Stat. 1095; Reorganization Plan No. 19 of 1950, sec. 1, 3 CFR
1943-1953 Comp., p. 1010; 64 Stat. 1271; Secretary's Order 5-96, 62
FR 107.
Subpart A--General Provisions
Sec. 25.1 How are claims of federal employees who are neither citizens
nor residents adjudicated?
This part describes how OWCP pays compensation under the FECA to
employees of the United States who are neither citizens nor residents
of the United States, any territory or Canada, as well as to any
dependents of such employees. It has been determined that the
compensation provided under the FECA is substantially disproportionate
to the compensation for disability or death which is payable in similar
cases under local law, regulation, custom or otherwise, in areas
outside the United States, any territory or Canada. Therefore, with
respect to the claims of such employees whose injury (or injury
resulting in death) has occurred subsequent to December 7, 1941, or may
occur, the regulations in this part shall apply.
Sec. 25.2 In general, what is the Director's policy regarding such
claims?
(a) Pursuant to 5 U.S.C. 8137, the benefit features of local
workers' compensation laws, or provisions in the nature of workers'
compensation, in effect in areas outside the United States, any
territory or Canada shall, effective as of December 7, 1941 and as
recognized by the Director, be adopted and apply in the cases of
employees of the United States who are neither citizens nor residents
of the United States, any territory or Canada, unless a special
schedule of compensation for injury or death has been established under
this part for the particular locality, or for a class of employees in
the particular locality.
(b) The benefit provisions adopted under paragraph (a) of this
section are those dealing with money payments for injury and death
(including medical benefits), as well as those dealing with services
and purposes forming an integral part of the local plan, provided they
are of a kind or character similar to services and purposes authorized
by the FECA.
(1) Procedural provisions, designations of classes of beneficiaries
in death cases, limitations (except those affecting amounts of benefit
payments), and any other provisions not directly affecting the amounts
of the benefit payments, in such local plans, shall not apply, but in
lieu thereof the pertinent provisions of the FECA shall apply, unless
modified in this section.
(2) However, the Director may at any time modify, limit or
redesignate the class or classes of beneficiaries entitled to death
benefits, including the designation of persons, representatives or
groups entitled to payment under local statute or custom whether or not
included in the classes of beneficiaries otherwise specified by this
subchapter.
(c) Compensation in all cases of such employees paid and closed
prior to [insert the effective date of the final rule] shall be deemed
compromised and paid under 5 U.S.C. 8137. In all other cases,
compensation may be adjusted to conform with the regulations in this
part, or the beneficiary may by compromise or agreement with the
Director have compensation continued on the basis of a previous
adjustment of the claim.
(d) Persons employed in a country or area having no well-defined
workers' compensation benefits structure shall be accorded the benefits
provided--either by local law or special schedule--in a nearby country
as determined by the Director. In selecting the benefit structure to be
applied, equity and administrative ease will be given consideration, as
well as local custom.
(e) Compensation for disability and death of non-citizens outside
the United States under this part, whether paid under local law or
special schedule, shall in no event exceed that generally payable under
the FECA.
Sec. 25.3 What is the authority to settle and pay such claims?
In addition to the authority to receive, process and pay claims,
when delegated such representative or agency receiving delegation of
authority shall, in respect to cases adjudicated under this part, and
when so authorized by the Director, have authority to make lump sum
awards (in the manner prescribed by 5 U.S.C. 8135) whenever such
authorized representative shall deem such settlement to be for the best
interest of the United States, and to compromise and pay claims for any
benefits provided for under this part, including claims in which there
is a dispute as to questions of fact or law. The Director shall, in
instructions to the particular representative concerned, establish such
procedures in respect to action under this section as he or she may
deem necessary, and may specify the scope of any administrative review
of such action.
Sec. 25.4 What type of evidence is required to establish a claim under
this part?
Claims of employees of the United States who are neither citizens
nor residents of the United States, any territory or Canada, if
otherwise compensable, shall be approved only upon evidence of the
following nature without regard to the date of injury or death for
which claim is made:
(a) Appropriate certification by the Federal employing
establishment; or
(b) An armed service's casualty or medical record; or
(c) Verification of the employment and casualty by military
personnel; or
(d) Recommendation of an armed service's ``Claim Service'' based on
investigations conducted by it.
[[Page 67169]]
Sec. 25.5 What special rules does OWCP apply to claims of third and
fourth country nationals?
(a) Definitions. A ``third country national'' is a person who is
neither a citizen nor resident of the United States who is hired by the
United States in the person's country of citizenship or residence for
employment in another foreign country, or in a possession or territory
of the United States. A ``fourth country national'' is a person who is
neither a citizen nor resident of either the country of hire or the
place of employment, but who otherwise meets the definition of third
country national. ``Benefits applicable to local hires'' are the
benefits provided in this part by local law or special schedule, as
determined by the Director. With respect to a United States territory
or possession, ``local law'' means only the law of the particular
territory or possession.
(b) Benefits payable. Third and fourth country nationals shall be
paid the benefits applicable to local hires in the country of hire or
the place of employment, whichever benefits are greater, provided that
all benefits payable on account of one injury must be paid under the
same benefit structure.
(1) Where no well-defined workers' compensation benefits structure
is provided in either the country of hire or the place of employment,
the provisions of Sec. 25.2(d) shall apply.
(2) Where equitable considerations as determined by the Director so
warrant, a fourth country national may be awarded benefits applicable
to local hires in his or her home country.
Sec. 25.6 How does OWCP adjudicate claims of non-citizen residents of
possessions?
An employee who is a bona fide permanent resident of any United
States possession, territory, commonwealth or trust territory will
receive the full benefits of the FECA, as amended, except that the
application of the minimum benefit provisions provided therein shall be
governed by the restrictions set forth in 5 U.S.C. 8138.
Subpart B--The Special Schedule of Compensation
Sec. 25.100 How is compensation for disability paid?
Compensation for disability shall be paid to the employee as
follows:
(a) Permanent total disability. In cases of permanent total
disability, 66\2/3\ percent of the monthly pay during the period of
such disability.
(b) Temporary total disability. In cases of temporary total
disability, 66\2/3\ percent of the monthly pay during the period of
such disability.
(c) Permanent partial disability. In cases of permanent partial
disability, 66\2/3\ percent of the monthly pay, for the following
losses and periods:
(1) Arm lost: 280 weeks' compensation.
(2) Leg lost: 248 weeks' compensation.
(3) Hand lost: 212 weeks' compensation.
(4) Foot lost: 173 weeks' compensation.
(5) Eye lost: 140 weeks' compensation.
(6) Thumb lost: 51 weeks' compensation.
(7) First finger lost: 28 weeks' compensation.
(8) Great toe lost: 26 weeks' compensation.
(9) Second finger lost: 18 weeks' compensation.
(10) Third finger lost: 17 weeks' compensation.
(11) Toe, other than great toe, lost: 8 weeks' compensation.
(12) Fourth finger lost: 7 weeks' compensation.
(13) Loss of hearing: One ear, 52 weeks' compensation; both ears,
200 weeks' compensation.
(14) Phalanges: Compensation for loss of more than one phalanx of a
digit shall be the same as for the loss of the entire digit.
Compensation for loss of the first phalanx shall be one-half of the
compensation for the loss of the entire digit.
(15) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as for
the loss of the arm or leg; but, if amputated between the elbow and the
wrist, or between the knee and the ankle, the compensation shall be the
same as for the loss of the hand or the foot.
(16) Binocular vision or percent of vision: Compensation for loss
of binocular vision, or for 80 percent or more of the vision of an eye
shall be the same as for the loss of the eye.
(17) Two or more digits: Compensation for loss of two or more
digits, one or more phalanges of two or more digits of a hand or foot
may be proportioned to the loss of use of the hand or foot occasioned
thereby, but shall not exceed the compensation for the loss of a hand
or a foot.
(18) Total loss of use: Compensation for a permanent total loss of
use of a member shall be the same as for loss of the member.
(19) Partial loss or partial loss of use: Compensation for
permanent partial loss or loss of use of a member may be for
proportionate loss of use of the member.
(20) Consecutive awards: In any case in which there shall be a loss
or loss of use of more than one member or parts of more than one member
set forth in paragraphs (c)(1) through (19) of this section, but not
amounting to permanent total disability, the award of compensation
shall be for the loss or loss of use of each such member or part
thereof, which awards shall run consecutively, except that where the
injury affects only two or more digits of the same hand or foot,
paragraph (c)(17) of this section shall apply.
(21) Other cases: In all other cases within this class of
disability the compensation during the continuance of disability shall
be that proportion of compensation for permanent total disability, as
determined under paragraph (a) of this section, which is equal in
percentage to the degree or percentage of physical impairment caused by
the disability.
(22) Compensation under paragraphs (c)(1) through (21) of this
section for permanent partial disability shall be in addition to any
compensation for temporary total or temporary partial disability under
this section, and awards for temporary total, temporary partial, and
permanent partial disability shall run consecutively.
(d) Temporary partial disability. In cases of temporary partial
disability, during the period of disability that proportion of
compensation for temporary total disability, as determined under
paragraph (b) of this section, which is equal in percentage to the
degree or percentage of physical impairment caused by the disability.
Sec. 25.101 How is compensation for death paid?
If the disability causes death, the compensation shall be payable
in the amount and to or for the benefit of the persons, determined as
follows:
(a) To the undertaker or person entitled to reimbursement,
reasonable funeral expenses not exceeding $200.
(b) To the surviving spouse, if there is no child, 35 percent of
the monthly pay until his or her death or remarriage.
(c) To the surviving spouse, if there is a child, the compensation
payable under paragraph (b) of this section, and in addition thereto 10
percent of the monthly wage for each child, not to exceed a total of
66\2/3\ percent for such surviving spouse and children. If a child has
a guardian other than the surviving spouse, the compensation payable on
account of such child shall be paid to such guardian. The compensation
of any child shall cease when he or she dies, marries or reaches the
age of 18 years, or if over such age and incapable of self-
[[Page 67170]]
support, becomes capable of self-support.
(d) To the children, if there is no surviving spouse, 25 percent of
the monthly pay for one child and 10 percent thereof for each
additional child, not to exceed a total of 66\2/3\ percent thereof,
divided among such children share and share alike. The compensation of
each child shall be paid until he or she dies, marries or reaches the
age of 18, or if over such age and incapable of self-support, becomes
capable of self-support. The compensation of a child under legal age
shall be paid to its guardian, if there is one, otherwise to the person
having the custody or care of such child, for such child, as the
Director in his or her discretion shall determine.
(e) To the parents, if one is wholly dependent for support upon the
deceased employee at the time of his or her death and the other is not
dependent to any extent, 25 percent of the monthly pay; if both are
wholly dependent, 20 percent thereof to each; if one is or both are
partly dependent, a proportionate amount in the discretion of the
Director. The compensation to a parent or parents in the percentages
specified shall be paid if there is no surviving spouse or child, but
if there is a surviving spouse or child, there shall be paid so much of
such percentages for a parent or parents as, when added to the total of
the percentages of the surviving spouse and children, will not exceed a
total of 66\2/3\ percent of the monthly pay.
(f) To the brothers, sisters, grandparents and grandchildren, if
one is wholly dependent upon the deceased employee for support at the
time of his or her death, 20 percent of the monthly pay to such
dependent; if more than one are wholly dependent, 30 percent of such
pay, divided among such dependents share and share alike; if there is
no one of them wholly dependent, but one or more are partly dependent,
10 percent of such pay divided among such dependents share and share
alike. The compensation to such beneficiaries shall be paid if there is
no surviving spouse, child or dependent parent. If there is a surviving
spouse, child or dependent parent, there shall be paid so much of the
above percentages as, when added to the total of the percentages
payable to the surviving spouse, children and dependent parents, will
not exceed a total of 66\2/3\ percent of such pay.
(g) The compensation of each beneficiary under paragraphs (e) and
(f) of this section shall be paid until he or she, if a parent or
grandparent, dies, marries or ceases to be dependent, or, if a brother,
sister or grandchild, dies, marries or reaches the age of 18 years, or
if over such age and incapable of self-support, becomes capable of
self-support. The compensation of a brother, sister or grandchild under
legal age shall be paid to his or her guardian, if there is one,
otherwise to the person having the custody or care of such person, for
such person, as the Director in his or her discretion shall determine.
(h) Upon the cessation of any person's compensation for death under
this subpart, the compensation of any remaining person entitled to
continuing compensation in the same case shall be adjusted, so that the
continuing compensation shall be at the same rate such person would
have received had no award been made to the person whose compensation
ceased.
(i) In cases where there are two or more classes of persons
entitled to compensation for death under this subpart, and the
apportionment of such compensation as provided in this section would
result in injustice, the Director may in his or her discretion modify
the apportionments to meet the requirements of the case.
Sec. 25.102 What general provisions does OWCP apply to the Special
Schedule?
(a) The definitions of terms in the FECA, as amended, shall apply
to terms used in this subpart.
(b) The provisions of the FECA, unless modified by this subpart or
otherwise inapplicable, shall be applied whenever possible in the
application of this subpart.
(c) The provisions of the regulations for the administration of the
FECA, as amended or supplemented from time to time by instructions
applicable to this subpart, shall apply in the administration of
compensation under this subpart, whenever they can reasonably be
applied.
Subpart C--Extensions of the Special Schedule of Compensation
Sec. 25.200 How is the Special Schedule applied in the Republic of the
Philippines?
(a) Modified special schedule of compensation. Except for injury or
death of direct-hire employees of the U.S. Military Forces covered by
the Philippine Medical Care Program and the Employees' Compensation
Program pursuant to the agreement signed by the United States and the
Republic of the Philippines on March 10, 1982 who are also members of
the Philippine Social Security System, the special schedule of
compensation established in subpart B of this part shall apply, with
the modifications or additions specified in paragraphs (b) through (k)
of this section, in the Republic of the Philippines, to injury or death
occurring on or after July 1, 1968, with the following limitations:
(1) Temporary disability. Benefits for payments accruing on and
after July 1, 1969, for injuries causing temporary disability and which
occurred on and after July 1, 1968, shall be payable at the rates in
the special schedule as modified in this section.
(2) Permanent disability and death. Benefits for injuries occurring
on and after July 1, 1968, which cause permanent disability or death,
shall be payable at the rates specified in the special schedule as
modified in this section for
(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.
(b) Death benefits. 400 weeks' compensation at two-thirds of the
weekly wage rate, shared equally by the eligible survivors in the same
class.
(c) Death beneficiaries. Benefits are payable to the survivors in
the following order of priority (all beneficiaries in the highest
applicable classes are entitled to share equally):
(1) Surviving spouse and unmarried children under 18, or over 18
and totally incapable of self-support.
(2) Dependent parents.
(3) Dependent grandparents.
(4) Dependent grandchildren, brothers and sisters who are unmarried
and under 18, or over 18 and totally incapable of self-support.
(d) Burial allowance. 14 weeks' wages or $400, whichever is less,
payable to the eligible survivor(s), regardless of the actual expense.
If there is no eligible survivor, actual burial expenses may be paid or
reimbursed, in an amount not to exceed what would be paid to an
eligible survivor.
(e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
(f) Permanent partial disability. Where applicable, the
compensation provided in paragraphs (c)(1) through (19) of Sec. 25.100,
subject to an aggregate
[[Page 67171]]
limitation of 400 weeks' compensation. In all other cases, provided for
permanent total disability that proportion of the compensation
(paragraph (e) of this section) which is equivalent to the degree or
percentage of physical impairment caused by the disability.
(g) Temporary partial disability. Two-thirds of the weekly loss of
wage-earning capacity.
(h) Compensation period for temporary disability. Compensation for
temporary disability is payable for a maximum period of 80 weeks.
(i) Maximum compensation. The total aggregate compensation payable
in any case, for injury or death or both, shall not exceed $8,000,
exclusive of medical costs and burial allowance. The weekly rate of
compensation for disability or death shall not exceed $35.
(j) Method of payment. Only compensation for temporary disability
shall be payable periodically. Compensation for permanent disability
and death shall be payable in full at the time the extent of
entitlement is established.
(k) Exceptions. The Director in his or her discretion may make
exceptions to regulations in this section by:
(1) Reapportioning death benefits, for the sake of equity.
(2) Excluding from consideration potential death beneficiaries who
are not available to receive payment.
(3) Paying compensation for permanent disability or death on a
periodic basis, where this method of payment is considered to be in the
best interest of the beneficiary.
Sec. 25.201 How is the Special Schedule applied in Australia?
(a) The special schedule of compensation established by subpart B
of this part shall apply in Australia with the modifications or
additions specified in paragraph (b) of this section, as of December 8,
1941, in all cases of injury (or death from injury) which occurred
between December 8, 1941 and December 31, 1961, inclusive, and shall be
applied retrospectively in all such cases of injury (or death from
injury). Compensation in all such cases pending as of July 15, 1946,
shall be readjusted accordingly, with credit taken in the amount of
compensation paid prior to such date. Refund of compensation shall not
be required if the amount of compensation paid in any such case,
otherwise than through fraud, misrepresentation or mistake, and prior
to July 15, 1946, exceeds the amount provided for under this paragraph,
and such case shall be deemed compromised and paid under 5 U.S.C. 8137.
(b) The total aggregate compensation payable in any case under
paragraph (a) of this section, for injury or death or both, shall not
exceed the sum of $4,000, exclusive of medical costs. The maximum
monthly rate of compensation in any such case shall not exceed the sum
of $50.
(c) The benefit amounts payable under the provisions of the
Commonwealth Employees' Compensation Act of 1930-1964, Australia, shall
apply as of January 1, 1962, in Australia, as the exclusive measure of
compensation in cases of injury (or death from injury) according on and
after January 1, 1962, and shall be applied retrospectively in all such
cases, occurring on and after such date: Provided, that the
compensation payable under the provisions of this paragraph shall in no
event exceed that payable under the FECA.
Sec. 25.202 How is the Special Schedule applied for Japanese seamen?
(a) The special schedule of compensation established by subpart B
of this part shall apply as of November 1, 1971, with the modifications
or additions specified in paragraphs (b) through (i) of this section,
to injuries sustained outside the continental United States or Canada
by direct-hire Japanese seamen who are neither citizens nor residents
of the United States or Canada and who are employed by the Military
Sealift Command in Japan.
(b) Temporary total disability. Weekly compensation shall be paid
at 75 percent of the weekly wage rate.
(c) Temporary partial disability. Weekly compensation shall be paid
at 75 percent of the weekly loss of wage-earning capacity.
(d) Permanent total disability. Compensation shall be paid in a
lump sum equivalent to 360 weeks' wages.
(e) Permanent partial disability. (1) The provisions of Sec. 25.100
shall apply to the types of permanent partial disability listed in
paragraphs (c)(1) through (19) of that section: Provided that weekly
compensation shall be paid at 75 percent of the weekly wage rate and
that the number of weeks allowed for specified losses shall be changed
as follows:
(i) Arm lost: 312 weeks.
(ii) Leg lost: 288 weeks.
(iii) Hand lost: 244 weeks.
(iv) Foot lost: 205 weeks.
(v) Eye lost: 160 weeks.
(vi) Thumb lost: 75 weeks.
(vii) First finger lost: 46 weeks.
(viii) Second finger lost: 30 weeks.
(ix) Third finger lost: 25 weeks.
(x) Fourth finger lost: 15 weeks.
(xi) Great toe lost: 38 weeks.
(xii) Toe, other than great toe lost: 16 weeks.
(2) In all other cases, that proportion of the compensation
provided for permanent total disability in paragraph (d) of this
section which is equivalent to the degree or percentage of physical
impairment caused by the injury.
(f) Death. If there are two or more eligible survivors,
compensation equivalent to 360 weeks' wages shall be paid to the
survivors, share and share alike. If there is only one eligible
survivor, compensation equivalent to 300 weeks' wages shall be paid.
The following survivors are eligible for death benefits:
(1) Spouse who lived with or was dependent upon the employee.
(2) Unmarried children under 21 who lived with or were dependent
upon the employee.
(3) Adult children who were dependent upon the employee by reason
of physical or mental disability.
(4) Dependent parents, grandparents and grandchildren.
(g) Burial allowance. $1,000 payable to the eligible survivor(s),
regardless of actual expenses. If there are no eligible survivors,
actual expenses may be paid or reimbursed, up to $1,000.
(h) Method of payment. Only compensation for temporary disability
shall be payable periodically, as entitlement accrues. Compensation for
permanent disability and death shall be payable in a lump sum.
(i) Maxima. In all cases, the maximum weekly benefit shall be $130.
Also, except in cases of permanent total disability and death, the
aggregate maximum compensation payable for any injury shall be $40,000.
(j) Prior injury. In cases where injury or death occurred prior to
November 1, 1971, benefits will be paid in accordance with regulations
previously promulgated, contained in the 20 CFR, parts 1 to 399,
edition revised as of January 1, 1971.
Sec. 25.203 How is the Special Schedule applied to non-resident aliens
in the Territory of Guam?
(a) The special schedule of compensation established by subpart B
of this part shall apply, with the modifications or additions specified
in paragraphs (b) through (k) of this section, to injury or death
occurring on or after July 1, 1971 in the Territory of Guam to non-
resident alien employees recruited in foreign countries for employment
by the military departments in the Territory of Guam. However, the
Director may, in his or her discretion, adopt the benefit features
[[Page 67172]]
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 (c)(1) through (19) of Sec. 25.100,
subject to an aggregate limitation of 400 weeks' compensation. In all
other cases, that proportion of the compensation provided for permanent
total disability (paragraph (e) of this section) which is equivalent to
the degree or percentage of physical impairment caused by the
disability.
(g) Temporary partial disability. Two-thirds of the weekly loss of
wage-earning capacity.
(h) Compensation period for temporary disability. Compensation for
temporary disability is payable for a maximum period of 80 weeks.
(i) Maximum compensation. The total aggregate compensation payable
in any case, for injury or death or both, shall not exceed $24,000,
exclusive of medical costs and burial allowance. The weekly rate of
compensation for disability or death shall not exceed $70.
(j) Method of payment. Compensation for temporary disability shall
be payable periodically. Compensation for permanent disability and
death shall be payable in full at the time the extent of entitlement is
established.
(k) Exceptions. The Director may in his or her discretion make
exception to the regulations in this section by:
(1) Reapportioning death benefits for the sake of equity.
(2) Excluding from consideration potential beneficiaries of a
deceased employee who are not available to receive payment.
(3) Paying compensation for permanent disability or death on a
periodic basis, where this method of payment is considered to be in the
best interest of the employee or his or her beneficiary(ies).
Signed at Washington, D.C., this 28th day of November, 1997.
Alexis M. Herman,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards Administration.
[FR Doc. 97-32511 Filed 12-22-97; 8:45 am]
BILLING CODE 4510-27-P
