Performance of Functions; Claims for Compensation Under the Federal Employees' Compensation Act; Compensation for Disability and Death of Noncitizen Federal Employees Outside the United States

DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1, 10, and 25

RIN 1240-AA03

Performance of Functions; 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, Department of Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Labor proposes to amend 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 Department of Labor also proposes to revise the regulations establishing the authority of the Office of Workers' Compensation Programs (OWCP) which administers the FECA.

The existing rules have been amended to acknowledge a change in the organization of the OWCP and amendments to the FECA which have occurred since the last time the regulations were amended in 1999. These changes also update the regulations by taking into account changes in technology and other changes to improve administrative efficiency. As many FECA claimants are not represented, the regulations are revised to insert FECA statutory references as a frame of reference for clarity and ease of use. The regulations include adding the skin as an organ pursuant to 5 U.S.C. 8107(c)(22). The regulations also create a new special schedule covering injuries to non-citizen non-resident Federal employees outside the United States. Finally, the regulations covering the processing of medical bills have been updated to provide for greater use of technology in that process to reduce costs and to clarify requirements for such submissions.

DATES:

Written comments must be submitted on or before October 12, 2010.

ADDRESSES:

You may submit comments on the proposed rule, identified by Regulatory Information Number (RIN) 1240-AA03, by one of the following methods:

•

Federal e-Rulemaking Portal:

The Internet address to submit comments on the rule is

http://www.regulations.gov.

Follow the Web site instructions for submitting comments.

•

Mail:

Submit written comments to Shelby Hallmark, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., Washington, DC 20210. Because of security measures, mail directed to Washington, DC is sometimes delayed. We will only consider comments postmarked by the U.S. Postal Service or other delivery service on or before the deadline for comments.

Instructions:

All comments must include the RIN 1240-AA03 for this rulemaking. Receipt of any comments, whether by mail or Internet, will not be acknowledged. Because DOL continues to experience delays in receiving postal mail in the Washington, DC area, commenters are encouraged to submit any comments by mail early.

Comments on the proposed rule will be available for public inspection during normal business hours at the address listed above for mailed comments. Persons who need assistance to review the comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this proposed rule may be obtained in alternative formats (

e.g.,

large print, audiotape or disk) upon request. To schedule an appointment to review the comments and/or to obtain the proposed rule in an alternative format, contact OWCP at 202-693-0031 (this is not a toll-free number).

Written comments on the information collection requirements described in this proposed rule should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Office of Workers' Compensation Programs, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT:

Shelby Hallmark, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., Washington, DC 20210, Telephone: 202-693-0031 (this is not a toll-free number).

Individuals with hearing or speech impairments may access this telephone number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

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 illnesses 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.

II. Overview of the Regulations

The program's regulations were last substantially revised in 1999. Since then, the organization and authority of OWCP has changed. Furthermore, new provisions have been added to the statute, and experience has shown that certain parts of the regulations need clarification or revision to promote fairness and efficiency in the claims process. In addition, technological advances that may help preserve administrative resources and improve efficiency in the claims process have been made since the last update of the regulations. Accordingly, OWCP has determined that the regulations governing the administration of claims under FECA require updating.

As many sections of the regulations are based on longstanding interpretations and program practice and do not require revision, this is not a wholesale revision of the existing regulations. However, consistent with past practice on FECA regulatory revisions, the entire regulation is being republished for ease of use. A detailed listing of the regulations changed and a description of those changes follows.

20 CFR Part 1

This part has been amended to reflect the change in organization at the Department of Labor that occurred on November 8, 2009, when the Employment Standards Administration (ESA) was dissolved and the authority that the Secretary of Labor had previously delegated under the FECA to ESA was delegated by the Secretary to the Director, OWCP.

20 CFR Part 10

Subpart A—General Provisions

This subpart is substantially the same as current subpart A (§§ 10.0 through 10.18). The majority of the changes to this subpart involve updating the regulations as a result of the addition of the new death gratuity benefit which was added to the FECA by 5 U.S.C. 8102a and by adding clarification language in a number of sections, as described below.

Definitions and Forms

Section 10.1 has been modified by deleting the references to the Assistant Secretary for Employment Standards, as that position no longer exists.

Section 10.2 now includes the new subpart J of this part which administers the new death gratuity benefit that was added to the FECA in 2008 by 5 U.S.C. 8102a.

Section 10.3 has been revised to update the list of OMB control numbers to include the new death gratuity forms and the subrogation forms.

Section 10.5 has been revised to restore statutory definitions and citations, as experience has shown that the absence of these citations caused confusion regarding what definitions were applicable and to clarify the definition of a recurrence of disability in paragraph (x).

Section 10.6 now includes a reference to the special definitions for survivorship and dependency that apply only to the new death gratuity benefit to promote clarity.

Section 10.7 has been updated to list all new forms described above and to eliminate forms that are no longer in use.

Information in Program Records

Section 10.10 has been amended to state that information may be released under the Privacy Act through the routine uses that apply to the records if such release is consistent with the purpose for which the records were created. This change has been made to clarify that there are certain situations where release of claim files is not appropriate under the Privacy Act.

Rights and Penalties

These sections have been updated to reflect current provisions that impose civil penalties on false claims under the FECA and to affirmatively require submission of documentation where appropriate.

Section 10.16 has been revised to note that a civil action may be maintained under the False Claims Act to recover erroneous payments under the FECA.

Section 10.17 has been revised to clarify when benefits are terminated for defrauding the Federal Government to eliminate confusion concerning what day should be used when a guilty plea has been entered. The addition specifies what date to use in such a situation. This section has also been revised to provide an affirmative duty for the employing agency (which may be fulfilled by the employing agency's Office of Inspector General (OIG) in a case where the agency OIG is actively involved) to submit this information to OWCP.

Section 10.18 has been revised to provide an affirmative duty for a beneficiary to report to OWCP any incarceration based on a felony conviction that would result in forfeiture of that beneficiary's right to compensation during incarceration.

Subpart B—Filing Notices and Claims; Submitting Evidence

This subpart is substantially the same as the current subpart B (§§ 10.100 through 10.127). Most changes involve the electronic submission of forms, a method of submission that was not feasible when the regulations were last changed. Other changes include the administration of the change to the waiting period for employees of the United States Postal Service necessitated by a statutory amendment in 5 U.S.C. 8117.

Notices and Claims for Injury, Disease, and Death—Employee or Survivor's Actions

Sections 10.100, 10.101, 10.102, 10.103 and 10.105 all have been revised by an identical provision that allows for electronic submission of notices and claims forms. This change includes a provision that all agencies should create a method to submit such forms electronically by December 31, 2012, by which time OWCP will have implemented a method to enhance the agencies' ability to file forms electronically. Electronic filing will speed OWCP's processing of claim forms.

Section 10.102 was also revised to clarify the language specifying that CA-7 should be used to claim compensation for additional periods of disability.

Section 10.103 has been revised to provide authority to create a separate form for schedule award claims under 5 U.S.C. 8107.

Section 10.104 was revised to make clear what constitutes a recurrence of disability and to explain the basis for a modification of a loss of wage-earning capacity determination. The addition of paragraph (c) to this section clarifies the distinction by incorporating longstanding case law from the Employees' Compensation Appeals Board.

Notices and Claims for Injury, Disease, and Death—Employer's Actions

Section 10.111 has been amended to reflect the change in law regarding waiting periods and Postal Service employees incorporated in the amendment to 5 U.S.C. 8117.

Evidence and Burden of Proof

Section 10.115 has been revised to clearly state that the burden of proof remains with the claimant even when OWCP requests additional information, as provided by ECAB case law.

Section 10.116 has been amended to reflect current OWCP practice, in that OWCP does not require the submission of the checklist in all situations.

Decisions on Entitlement to Benefits

Section 10.127 has been amended to remove the language stating that service of a decision on either the claimant or the representative would count as service to both, as this no longer reflects current practice of the OWCP. OWCP serves decisions on entitlement on both the claimant and the representative.

Subpart C—Continuation of Pay

Subpart C (§§ 10.200 through 10.224) continues unchanged from the previous regulations, except for a change to § 10.200. The change to this section reflects the change to continuation of pay to Postal Service employees as a result of the statutory change to 5 U.S.C. 8117 which provides that Postal Service employees are not entitled to continuation of pay for the first 3 days of temporary disability unless that disability exceeds 14 days or is followed by permanent disability.

Subpart D—Medical and Related Benefits

Subpart D (§§ 10.300 through 10.337) is mostly unchanged. Most of the changes involve technological advances since the last update of the regulations; these advances caused procedures to be changed. Other changes clarify the prior regulations or codify current practice. Additionally, OWCP seeks to codify authority to make changes to the manner in which durable medical equipment and other non-physician services are provided.

Emergency Medical Care

Section 10.300 has been amended to clarify that the Form CA-16, which provides authorization for initial medical treatment, authorizes treatment from the date of injury, not the date the form is signed. This change corrects situations where this form has not been signed immediately—this posed difficulties for employees obtaining treatment at the time of injury.

Medical Treatment and Related Issues

Section 10.310 has been amended in a number of places. First, this section was amended to cross-reference the sections of this part that provide for medical billing and authorization. This

section has also been modified to codify OWCP's authority to utilize field nurses in facilitating and coordinating medical care. Furthermore, this section has been modified to codify OWCP's authority to contract with specific providers to provide services and appliances; OWCP has determined that providing such services in this method may aid in delivering such benefits as well as controlling medical costs. This section has also been amended to clearly state that certain non-physician providers provide authorized services to injured employees, to the extent allowed under Federal and state law including licensure by any appropriate regulating body for that profession. This change was made to clarify that OWCP pays for such services.

Section 10.310 has also been amended to add a new paragraph (c) that covers durable medical equipment. This paragraph provides first that any provider of such equipment must be registered in Medicare's Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Process. This requirement provides OWCP a measure of reliability (including financial security) in such providers, while helping OWCP avoid using scarce program resources to police all such providers. Furthermore, this paragraph allows OWCP, when purchasing such equipment, to offset the costs of prior rental payments against a future purchase and provide refurbished equipment when appropriate. Both of these additions were done to help control the cost of providing this equipment.

Section 10.311(d) has been amended to clarify that, for a chiropractor's service to be under the direction of a qualified physician, that physician must prescribe those services.

Section 10.314 relating to attendant services has been substantially shortened from the prior regulation. As the number of attendant services provided in cases prior to January 4, 1999 has decreased and since the current policy has been successfully in place for over a decade, the extended discussion is no longer necessary.

Section 10.315 has been substantially modified, increasing the reasonable distance of travel up to a roundtrip distance of 100 miles. OWCP encountered situations where employees no longer had doctors within the old distance of 25 miles and determined that such an increase is needed. This section has also been amended to explain procedures regarding types and manner of transport allowed.

Directed Medical Examinations

Section 10.320 has been amended to add language allowing another person to be present at an OWCP directed examination where there is rationalized medical evidence demonstrating that such a person is needed in addition to situations such as where a translator or sign language interpreter is needed to aid communication. This change is in response to a number of claims where such a person may be needed. This language sets forth one method to meet the “exceptional circumstances” test for allowing an additional person in the examination where medically indicated.

Section 10.321 has been updated to add the word “impartial” to the referee medical review to conform with terminology normally used by OWCP and ECAB.

Section 10.323 has been amended by expressly noting that examinations required by OWCP includes testing such as functional capacity evaluations and by adding a new paragraph (b) which details the process of how OWCP suspends compensation for obstructing a medical examination, as well as to explain how the employee can end that obstruction. This paragraph was added to provide additional guidance to claimants and to consolidate all such information in one location.

Medical Reports

Section 10.333 has been amended to provide a cross reference to the information necessary to support an award for loss to a scheduled member and to include additional language used in the

AMA Guides.

Medical Bills

Section 10.335 has been amended to bring this section in line with current OWCP procedures, and to provide notice that OWCP may contract with a third party for bill payment processing.

Section 10.337 has been amended to update the cross-references contained in that section.

Subpart E—Compensation and Related Benefits

Subpart E (§§ 10.400 through 10.441) also is largely unchanged. Of the changes made to this subpart, most are to clarify the prior regulation by codifying ECAB case law or promoting administrative efficiency by changing practices that experience has shown waste program resources. A few additions have been made, including the addition of the skin as a scheduled member and including language regarding electronic payments and their effect on overpayments.

Section 10.400 has been amended to include the statutory citation for when permanent total disability is presumed to clarify the origin of that definition.

Section 10.401 has been amended to reflect the change in when the waiting period begins for Postal Service employees after the amendment to 5 U.S.C 8117 as described above.

Section 10.403 has been amended to restore the factors used in determining wage-earning capacity where actual earnings do not fairly and reasonably represent that capacity as described in 5 U.S.C. 8115 to facilitate ease of use of that section.

Section 10.404, which describes how compensation is paid for loss to scheduled members under 5 U.S.C. 8107, has been revised to include the statutory scheduled members as well as those that have been added by regulation. Furthermore, Section 10.404 has been amended to include the skin as a schedule member, for up to 205 weeks of compensation, for injuries sustained on or after September 11, 2001. In determining compensation payable for the skin, OWCP considered a number of factors, including relative percentage impairments of the other scheduled members under the

AMA Guides,

as well as the length of compensation that had been previously given for members added by regulation. After considering these factors, OWCP determined that the skin should be given the maximum amount of compensation that had been previously given when adding new members. As to the date of applicability of this section, OWCP determined that use of September 11, 2001 would allow individuals who had sustained severe burns or other skin conditions on or after September 11, 2001 to file schedule award claims. OWCP further determined that use of an earlier date would create problems of proof and eligibility under § 10.413 of this section.

Compensation for Death

Section 10.410 has been amended to clarify that survivor's benefits under 5 U.S.C. 8133 are separate and distinct from the death gratuity benefits under 5 U.S.C. 8102a.

Section 10.412 has been amended to include statutory citations to the amounts provided for burial and related expenses.

Section 10.413 has been amended to codify in the regulations the requirement of 5 U.S.C. 8109 and ECAB case law which states a claim for a schedule award must be filed while the claimant is still alive in order for the claim to be paid.

Section 10.415 has been amended to modernize the regulation to provide additional detail on handling the increasing number of governmental payments made by electronic fund transfer (EFT).

Section 10.417 has been revised to streamline the process by which employees establish the dependency for adult children who are incapable of self-support. In this section, OWCP has reduced the reporting requirements in those instances to once each year, while placing an affirmative duty on the employee to report any change in the conditions to OWCP. This change will promote efficiency for OWCP when, in a number of instances, the circumstance of such dependency will not change more than annually. Furthermore, this section was amended to add a new section allowing an employee to establish the permanency of an adult child's mental or physical disability; such a change will save OWCP administrative resources while eliminating an employee's burden to continuously submit reports for an adult child with permanent mental or physical disabilities.

Adjustments to Compensation

Section 10.421 has been amended to reflect the change in language to 5 U.S.C. 8116 made after the repeal of 5 U.S.C. 5532.

Section 10.422 has been amended to note that the availability of lump sum payments for non-citizen non-resident employees will be addressed in Part 25 of this title.

Section 10.423 has been amended to delete the discussion that suggests claims for compensation are subject to garnishment from claims from other Federal agencies. The authority for this language is unclear and has not been used.

Section 10.425 has been amended to clarify that leave donated to an employee through an employing agency's leave program is not leave that may be restored through the leave buy back process.

Overpayments

Since the last time the regulations were updated, most recipients of FECA benefits have been moved to electronic payment (EFT). This has created questions as to when an employee has knowledge of receipt of their FECA benefits. Accordingly, § 10.430 has been amended to reflect a growing concern regarding when a claimant receives, or has knowledge of, an electronic payment. This section has been amended to add the normal business transaction definition of such receipt, where a payee is presumed to have knowledge of any payment once the payee has had the opportunity to receive a bank statement from the payee's financial institution.

Section 10.433 was likewise amended to reflect that an employee is required to review such bank statements in order to ensure proper receipt of FECA benefits.

Section 10.440 was amended to include District Court and ECAB case law which allow OWCP to pursue collection of a debt while any such determination is pending before ECAB.

Section 10.441 was amended to describe the process used by OWCP to collect overpayment debts following the death of an employee.

Subpart F—Continuing Benefits

Subpart F (§§ 10.500 through 10.541) is largely unchanged. Most changes clarify the prior regulations by further describing the procedures and policies of OWCP and by including ECAB case law explaining those prior regulations.

Section 10.500 was amended to clarify the difference between light duty work and a suitable work determination and to restore statutory citations to the regulations.

Section 10.501 was amended to include a new subparagraph (2), which allows OWCP to require less medical documentation for continuing benefits where circumstances merit such reduced documentation, reducing the burden on those employees and the OWCP in administering their claims.

Section 10.502 was revised to update the language used to describe the impartial referee examination to bring the terminology in line with OWCP and ECAB usage.

Return to Work—Employer's Responsibilities

Section 10.509 was also modified by splitting that section into two sections, §§ 10.509 and 10.510. Section 10.509 now covers only situations involving the effect of downsizing of a light duty position on compensation. New § 10.510 describes when a light duty job may be used as a basis for a loss of wage-earning capacity determination.

Section 10.511 is a new section that codifies longstanding ECAB case law which delineates the only circumstances under which a loss of wage-earning capacity determination may be modified.

Return to Work—Employee's Responsibilities

Section 10.517 has been modified to make clear that, when an employee refuses to seek or accept suitable work, the resulting termination of compensation applies to any prior injuries in which compensation may be payable as well as the claim under which compensation has ended. Consistent with longstanding program practice, medical benefits remain payable in all cases following such termination.

Sections 10.518 and 10.519 have been modified to delete references to registered nurses under the vocational rehabilitation of employees, as ECAB ruled that the sanctions for failing to cooperate with vocational rehabilitation do not apply to nurse services.

New § 10.521 has been added to explain the process followed by OWCP when an employee that is involved in the vocational rehabilitation process or other return to work effort elects to receive benefits from the Office of Personnel Management instead of FECA benefits, and is no longer participating in the vocational rehabilitation process. In such instances, OWCP may use the evidence of file to perform a loss of wage-earning capacity determination.

Reports of Earnings From Employment and Self-Employment

Section 10.525 has been amended to clarify that an employee must report all employment activities, including all outside employment, as such employment is material to a disability determination. This is so even where such earnings from concurrent dissimilar employment held at the time of injury do not reduce compensation payable but may still assist OWCP in assessing disability for work.

Section 10.526 has been amended to clarify that, in reporting volunteer activities, the fact that the employee received no monetary compensation for those activities is not a basis for not reporting those activities to OWCP under ECAB case law.

Reports of Dependents

Section 10.537 was amended to reflect the change in reporting for non-minor children to once a year as described above in the discussion regarding § 10.417.

Reduction and Termination of Compensation

Section 10.540 has been reorganized by splitting paragraph (a) into new paragraphs (a) and (b), to promote clarity and ease of use of the section.

Subpart G—Appeals Process

Subpart G (§§ 10.600 through 10.626) also continues largely unchanged; the changes that have been made were made to promote clarity and update the

regulations to reflect changes in practice and technology that have taken place since the regulations were last updated.

Reconsiderations and Reviews by the Director

Section 10.606 has been modified to add language requiring that reconsideration requests be signed and dated. This change has been made to clarify when such requests have been made and to allow OWCP to ascertain that the person (such as a representative) requesting reconsideration is authorized to do so at the time such request is made.

Section 10.607 has been modified by changing the date of the reconsideration request for timeliness purposes from the date mailed to the date received by OWCP. This change has been made to promote efficiency in administering these requests; current electronic case files and associated scanning procedures and resources would be unnecessarily strained by the requirement to scan in every envelope from every letter sent to OWCP. Accordingly, the prior regulation which referenced the date of mailing on the envelope led to some uncertainty regarding when a request was filed. Rather than reduce the amount of time given to file the reconsideration request, OWCP has chosen simply to require that the request must have been received by OWCP within the one year period, a period which provides more than ample time to obtain the necessary evidence or make the legal arguments in support of a reconsideration request.

Section 10.609 has been modified to note that OWCP will not wait for comments from an employing agency regarding a request for reconsideration when comments from the agency are not germane to the issue being resolved on reconsideration.

Hearings

The sections governing hearings before the OWCP's Branch of Hearings and Review (BHR) have been modified to reference that procedures are available for reasonable accommodation in the hearing process. The sections include procedures for BHR to conduct hearings by teleconference and videoconference. Such methods although permissible under the regulations were not in active use at the time of the last regulation update. These sections have also been modified to clarify certain policies related to such processes and to provide discretion to utilize other technology to conduct hearings as it may become available. OWCP has found that use of teleconferences and videoconferences allows hearings to be held more quickly.

Section 10.616 has been modified to accommodate the alternative types of hearings as described above.

Section 10.617 has been amended to cover a number of policies that were previously not contained in the regulation. First, this section has been amended to note how an employee may request accommodations from BHR. This section has also been amended to note that hearings are generally limited to one hour, and to note that the transcript is the official record of the hearing. This section has also been modified to clarify the time limits for submitting comments following a hearing. Finally, a new paragraph (h) has been inserted as a reference to a statutory section that allows an OWCP hearing representative to certify any misconduct to a District Court for appropriate handling.

Section 10.618 has been amended to clarify that when an employee requests that a hearing be changed to a review of the written record, all evidence should be submitted with that request.

Section 10.619 has been amended to clarify that, if a request for a subpoena has been made, the requestor must explain why that subpoena is necessary at the time the request is made.

Section 10.621 has been amended to clarify that it is in the discretion of the hearing representative whether the employing agency may be allowed to have more than one representative attend the hearing.

Section 10.622 has been amended to accommodate the alternative forms of hearings discussed above and to explain how these types of hearings are handled with a monthly docket. Furthermore, this section has been amended to add new paragraph (d) which restores prior regulatory language addressing abandonment of hearings, as experience since that language was removed has shown that this section is necessary.

Review by the Employees' Compensation Appeals Board (ECAB)

Section 10.626 has been amended to cross reference ECAB's rules of procedure to promote ease of use of these regulations.

Subpart H—Special Provisions

While a majority of the provisions in subpart H (§§ 10.700 through 10.741) remain unchanged, some extensive changes have been made to certain portions of this subpart. This subpart has been changed to reference that an attorney associated with a law firm may represent claimants and to explicitly state that OWCP will communicate with the law firm. The regulation clarifies OWCP policy that contingency fees are not allowed under any circumstances. The FECA subrogation sections have been expanded to codify current practice; to promote transparency and clarity where a third party is responsible for an injury or death; and to better explain how subsequent FECA subrogation claims are handled. Finally, the provision relating to coverage of Peace Corps volunteers has been amended to restore statutory language concerning such coverage.

Representation

Section 10.700 has been amended to clarify that where a claimant's representative is an attorney, OWCP may communicate with any attorney or employee in the attorney's law firm. This change has been made to comport with the normal practice of law firms, and to promote efficient administration of the program.

Section 10.702 has been amended to clearly state that contingency fees are not allowed when representing beneficiaries under the FECA. This explicit language addressing contingency fees was removed during the last regulatory update; however, experience since that update has shown that the removal of this language caused some to believe that the ban on contingency fees had been removed as well.

Section 10.703 has been amended to make clear that OWCP can only approve representative's fees for services that have been performed before OWCP and references that ECAB must approve fees for services performed in front of ECAB. This section has also been amended to clarify that contingency fees will not be approved for any reason. Contingency fees are not subject to the deemed approved process where a fee may be approved if a claimant concurs with such a fee. If the fee is disputed, the regulations provide that OWCP will consider the customary local charge for a representative with similar qualifications in considering what constitutes a reasonable fee.

New § 10.704 takes a sentence that was formerly the last sentence of § 10.702 and makes that language its own section in the regulations to highlight that a person who collects a fee without OWCP approval may be charged with a misdemeanor. OWCP believes that adding this section is useful to provide notice of the potential consequences for failing to comport with the OWCP fee approval process.

Third Party Liability

Section 10.705 has been amended to give the full address where information on subrogation claims may be sent.

Section 10.707 has been amended to require that certain information be submitted in circumstances where the employee is not the only plaintiff in a suit.

The provisions in 10.711 have been moved to 10.712 and the provisions in 10.712 have been moved to 10.711. The new order reflects the process of calculating the refund and surplus in accordance with the statement of recovery form CA-1108. New section 10.711 substantially revises existing 10.712 by setting out in greater detail the manner in which the amount of recovery of the employee is determined including situations where property loss is part of the recovery or where loss of consortium or wrongful death and survival actions have been asserted. New section 10.711 reflects the procedures that have been in place for a number of years. New section 10.712 clarifies that the crediting of a surplus is done against both wage-loss compensation and medical benefits, sets out in greater detail the steps to follow in calculating the refund and surplus, and provides additional examples of how these calculations are made, including cases where loss of consortium and wrongful death and survival actions have been asserted.

Section 10.714 has been amended to clarify that OWCP may seek reimbursement for all types of benefits paid to an employee when that employee has successfully sued a third party for that injury. This section was also amended to clarify how that employee may obtain a copy of the disbursements made by OWCP in their claim.

Peace Corps Volunteers

Section 10.730 has been amended to restore the statutory language applicable to coverage of claims involving Peace Corps volunteers. The statutory language is a recognition of the difficulties for such volunteers to establish that certain injuries or illness are related to their covered activities. The change in language allows OWCP to consider evidence that controverts coverage, while still allowing the volunteer to establish the claim, and clarifies that a temporary aggravation of a preexisting condition may be paid without the necessity of accepting all disability related to that condition.

Subpart I—Information for Medical Providers

A number of changes have been made to subpart I. The majority of these changes have been made to address OWCP's electronic bill processing system and to comport this processing with that done in other compensation programs administered by OWCP. This subpart has also been revised to modify the process by which OWCP excludes medical providers by including the Department of Labor's Office of Inspector General (DOL OIG) in the process.

Medical Records and Bills

Section 10.800 has been amended to describe OWCP's provider enrollment process and automated bill processing and authorization system, which has been substantially revised since the last time the regulations were updated.

Section 10.801 has been amended to clarify how medical bills are currently processed. In addition to those changes, this section has been amended to codify that OWCP may require nursing homes to abide by a fee schedule for admissions made after the effective date of the regulations, which will standardize billing practices and promote cost containment. This change was made to allow additional modifications to restrain medical costs. This section has also been amended to provide language making it clear that providers must adhere to accepted industry standards when billing. Since the advent of the automated bill processing system, OWCP wishes to make clear that billing practices such as upcoding and unbundling are not in accord with industry standards and such attempts to circumvent the fee schedule through practices described in that language are prohibited under the regulations.

Section 10.802 has been amended to clarify how an injured employee currently seeks reimbursement for out of pocket expenses.

Medical Fee Schedule

Section 10.805 has been revised in order to give the Director of OWCP the express authority to determine a fee schedule for services provided by nursing homes.

Sections 10.806, 10.807 and 10.810 have been revised to update the indices used in determining maximum fees.

Section 10.809 has been revised to clarify that the fee schedule regarding medicinal drugs applies whether the drugs are dispensed by a pharmacy or by a doctor in his office. This section has also been modified by providing OWCP the authority to require the use of a specific contract provider for medicinal drugs. This language has been added so that OWCP may explore the use of such providers to contract for better prices on such drugs. Finally, the authority to require the use of generic drugs has been moved to this section as new paragraph (c).

Section 10.811 has been amended to clarify that OWCP will not correct procedure or diagnosis codes on submitted bills. Instead those bills will be returned to the provider for correction as the responsibility for proper submission lies with the provider.

Exclusion of Providers

Section 10.815 has been amended by adding new sections (i) and (j) which set out additional reasons for excluding providers. These new reasons are failure to update a change in provider status and having engaged in conduct found by OWCP to be misleading, deceptive or unfair. Experience has shown that a number of ambiguities existed in the exclusion process. These new reasons for exclusion are meant to address any perceived loopholes.

Section 10.816 has been amended to add new section (c), which clarifies that a provider may be voluntarily excluded without the exclusion procedures being initiated. This clarification is meant to address situations where providers agree to be excluded, for example, where a provider may be faced with criminal charges.

Section 10.817 has been amended to provide that the DOL OIG is primarily responsible for investigating possible exclusions of providers. This duty was previously handled by OWCP; OWCP has no investigatory arm and lacks resources to carry out this responsibility. Accordingly, this change in the exclusion process has been made in an effort to improve administrative efficiency of this process.

Sections 10.818 through 10.821 have been revised to change the deciding official in exclusion matters from just the Regional Director to the Regional Director or any other official specified by the Director of the Division of Federal Employees' Compensation. This change has been made in recognition of the fact that there may be instances (such as where more than one region is involved) where the Regional Director should not be the deciding official. These sections have also been modified to recognize the role of DOL OIG.

Sections 10.823 through 10.824 have been modified to change the manner in which the administrative law judge's recommended decision becomes final.

Previously, the decision became final if no objection was filed, which could lead to confusion regarding the finality of this decision. Accordingly, these sections were changed to reflect that no recommended decision regarding exclusion will become final until the Director of OWCP issues the decision in final form.

Section 10.825 has been amended to reflect current practices of OWCP, as OWCP may use discretion in determining who should receive the notice of exclusion.

Section 10.826 has been modified to correct terminology and to clarify that the Director of OWCP can order reinstatement of excluded providers.

Subpart J—Death Gratuity

Subpart J (§§ 10.900 through 10.916) is unchanged.

20 CFR Part 25

Section 8137 provides the conditions and parameters for FECA coverage for non-citizen non-resident employees of the United States, any territory, or Canada. Part 25 describes how benefits will be paid to such employees. Since the last time the regulations were revised in 1999, OWCP encountered a number of situations where the current regulatory scheme proved difficult to administer. Although payment of FECA compensation across the board in all such cases remains substantially disproportionate, benefits payable under local law may be insufficient. Moreover, many of the distinctions and definitions such as those for third country and fourth country nationals do not comport with the current governmental hiring realities for non-citizen non-resident employees. In conducting the comparison required by the current regulations between compensation payable under local law and that paid under FECA, OWCP encountered situations where the families of employees who were killed received very limited compensation under local law. However, payment of ongoing FECA benefits in such cases would result in disproportionately high payments and would pose administrative challenges in managing such cases on an ongoing basis. Under the statute, the Director has authority to create a special schedule. In the interests of fairness, the Director has created a new more comprehensive special schedule for disability that will pay benefits on an ongoing basis for up to two years and will pay a lump sum thereafter for cases of permanent total disability. Payment for death benefits will also be paid in a lump sum to facilitate benefit delivery and to ease administrative burdens.

Subpart A—General Provisions

Section 25.1 has been revised to reflect a change in policy in the payment of 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 any dependents of such employees. The proposed revision would modify the benefit structure for foreign nationals by using the authority under section 8137 to create a special schedule of compensation for foreign nationals to provide a reduced percentage of FECA benefits.

Section 25.2(a) has been revised to provide that the special schedule set forth in subpart B would apply to any non-citizen non-resident federal employee who is neither hired nor employed in the United States, Canada or in a possession or territory of the United States, with respect to any injury (or injury resulting in death) occurring subsequent to the effective date of the publication of the final rule in the

Federal Register

. This paragraph has also been amended to provide that the benefit provisions adopted under this paragraph shall apply to injuries that occur on or after 60 days after the publication of the final rule in the

Federal Register

.

Section 25.2(b) has been revised to provide that the special schedule in subpart B shall apply to cases unless the injured non-citizen non-resident employee receives compensation pursuant to a specific separate agreement between the United States and another government (or similar compensation from another sovereign government); or the employee receives compensation pursuant to the special schedule under subpart C; or the employee otherwise establishes entitlement to compensation under local law pursuant to section 25.100(e) of this part.

Section 25.2(c) has been revised to provide that compensation in all cases of such non-citizen non-resident employees paid and closed prior to 60 days after the publication of the final rule in the

Federal Register

are deemed paid in full under 5 U.S.C. 8137.

Section 25.2(d) has been revised to provide that the compensation received under the special schedule set forth in subpart B or as otherwise specified in 25.2(b) is the exclusive measure of compensation in cases of injury (or death from injury) to non-citizen non- resident employees of the United States.

Section 25.2(e) was revised to clarify the information in former section 25.2(e) that compensation for disability and death of non-citizen non-resident employees outside the United States under this part shall in no event exceed that generally payable under the FECA.

Section 25.3 remains unchanged, providing that the Director has the authority to make lump-sum awards (in the manner prescribed by 5 U.S.C. 8135) to settle claims pursuant to section 8137 of the FECA.

Section 25.4 remains unchanged except for section (c) which is revised to read “Verification of the employment and casualty by Department of Defense personnel” instead of military personnel to reflect the responsibility for providing the type of evidence necessary to make a claim under this section resides with that department.

Section 25.5 has been renumbered but otherwise remains unchanged, providing that an employee who is a permanent resident of any United States possession, territory, commonwealth or trust territory will receive full FECA benefits.

Subpart B—the Special Schedule of Compensation

Section 25.100 has been amended to provide that the definitions under this subpart are generally the same as those provided under the rest of the FECA statute and regulations.

25.101 has been modified to describe how compensation for temporary total and partial disability, and permanent total and permanent partial disability are paid to non-citizen non-resident employees. Provisions under the former section 25.101 for death benefits have been revised and currently appear in section 25.102.

Section 25.101(a) has been amended to provide for temporary total disability, where the injured employee is disabled for less than two years. Under this provision, the employee receives 50 percent of the monthly pay during the period of such disability.

Section 25.101(b) has been amended to provide for temporary partial disability, where the injured employee is unable to earn equivalent wages to those earned at the time of injury, but is not totally disabled for work. Under this section, the injured employee receives a proportional amount of compensation for the period of disability. The compensation amount is that portion of compensation for temporary 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.

Section 25.101(c) has been amended to provide for permanent total

disability, where the injured employee will be disabled for greater than two years. This section provides that the injured employee will receive a lump sum settlement, made by the manner prescribed under 5 U.S.C. 8135, based on compensation equaling 50 percent of the monthly pay.

Section 25.101(d) has been amended to provide for permanent partial disability, where there is permanent impairment involving the loss, or loss of use, of a member or function of the body. This section describes how compensation is paid for loss to scheduled members, and has been revised to be consistent with the time periods listed under 5 U.S.C. 8107 and the regulations listed in 20 CFR 10.404. In addition to the revision of the time periods, this section has been amended to include the skin as a schedule member, for up to 205 weeks of compensation. This change is consistent with changes made under Part 10. The employee will be paid in a lump sum according to 5 U.S.C. 8135, at 50 percent of the monthly pay.

Section 25.101(e) has been amended to provide that if a beneficiary can show that the amount payable under the special schedule would be demonstrably less than the amount payable under the law of his home country, the Director has the discretion to pay an amount in excess of the special schedule of compensation under 5 U.S.C. 8137(a)(2)(A), not to exceed the amount payable under FECA. This section provides that to request such benefits, the beneficiary must submit the following information: translated copies of the applicable local statute as well as any regulations, policies and procedures the beneficiary asserts are applicable; and a translated copy of an opinion rendered by an attorney licensed in that jurisdiction or an advisory opinion from a court or administrative tribunal that explains the benefits payable to the beneficiary.

Section 25.102 has been amended to describe how compensation for death of a non-citizen non-resident employee is paid. Section 25.102(a) has been amended to provide for burial expenses not to exceed $800. Sections 25.102(b)-(i) remain similar in the distribution of death benefits (as delineated in former sections 25.101(a)-(i)) but have been limited to a total of 50 percent of monthly pay. Section 25.102(j) has been added to provide that death benefits should be paid in a lump sum where practicable pursuant to 5 U.S.C. 8135.

Section 25.102(k) has been added to provide if a beneficiary can show that the amount payable under the special schedule would be demonstrably less than the amount payable under the law of his home country, the Director has the discretion to pay an amount in excess of the special schedule under 5 U.S.C. 8137(a)(2)(A), not to exceed the amount payable under FECA. This section provides that the beneficiary must submit the same information as noted in section 25.101(e).

Section 25.102(l) has been added to inform claimants that a FECA death gratuity of $65,000 may be payable for the death of a non-citizen non-resident employee should the death be a result of injury incurred in connection with service with an Armed Force in a contingency operation as set forth in subpart J of part 10.

Subpart C

The provisions of subpart C are largely unchanged in this regulatory revision. Section 25.202 has been amended to adjust the maximum amount of compensation payable under that section for inflation, and to provide an automatic, yearly escalator to that amount.

Section 25.203 has been amended to apply the special schedule created by subpart B to non-citizen, non-resident employees in the Territory of Guam, without the modifications contained in the prior regulations.

III. Administrative Requirements for the Proposed Rulemaking

Executive Order 12866

This proposed regulatory action constitutes a “significant” rule within the meaning of Executive Order 12866 in that any executive agency could be required to participate in the development of claims for benefits under this regulatory action. The Department believes, however, that as this regulatory action merely updates existing regulations, this regulatory action will not have a significant economic impact on the economy, or any person or organization subject to the proposed changes. The Department has projected that the addition of the skin as an organ under the schedule award provision as well as the revision of the part 25 compensation for non-citizen non-resident employees will result in additional expenditures of $10,893,434 over ten years.

This projection is based on a very limited amount of data and a single significant event could result in substantially higher than projected expenditures. This has 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.

Regulatory Flexibility Act of 1980

This proposed rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department has concluded that the rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation.

Paperwork Reduction Act (PRA)

This rule contains information collection requirements subject to the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501,

et seq.

The requirements set out in this rule were both submitted to and approved by the OMB under the OMB Control Numbers 1240-0001, 1240-0007, 1240-0008, 1240-0009, 1240-0012, 1240-0013, 1240-0015, 1240-0016, 1240-0017, 1240-0018, 1240-0019, 1240-0022, 1240-0044, 1240-0045, 1240-0046, 1240-0047, 1240-0049, 1240-0050 and 1240-0051.

The National Environmental Policy Act of 1969

The Department certifies that this proposed rule has been assessed in accordance with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321

et seq.

(NEPA). The Department concludes that NEPA requirements do not apply to this rulemaking because this proposed rule includes no provisions impacting the maintenance, preservation, or enhancement of a healthful environment.

Federal Regulations and Policies on Families

The Department has reviewed this proposed rule in accordance with the requirements of section 654 of the Treasury and General Government Appropriations Act of 1999, 5 U.S.C. 601 note. These proposed regulations were not found to have a potential negative effect on family well-being as it is defined thereunder.

Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

The Department certifies that this proposed rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. These proposed regulations were not found to have a potential negative effect on the health or safety of children.

Unfunded Mandates Reform Act of 1995 and Executive Order 13132

The Department has reviewed this proposed rule in accordance with the requirements of Executive Order 13132, 64 FR 43225 (Aug. 10, 1999), and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501

et seq.,

and has found no potential or substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. As there is no Federal mandate contained herein that could result in increased expenditures by State, local, or tribal governments or by the private sector, the Department has not prepared a budgetary impact statement.

Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

The Department has reviewed this proposed rule in accordance with Executive Order 13175, 65 FR 67249 (Nov. 9, 2000), and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

The Department has reviewed this proposed rule in accordance with Executive Order 12630, 53 FR 8859 (Mar. 15, 1988), and has determined that it does not contain any “policies that have takings implications” in regard to the “licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property.”

Executive Order 13211: Energy Supply, Distribution, or Use

The Department has reviewed this proposed regulation and has determined that the provisions of Executive Order 13211, 66 FR 28355 (May 18, 2001), are not applicable as there are no direct or implied effects on energy supply, distribution, or use.

The Privacy Act of 1974, 5 U.S.C. 552a, as Amended

Claims filed under these regulations are subject to the current Privacy Act System of Records, DOL/GOVT-1, Office of Workers' Compensation Programs, Federal Employees' Compensation Act File, 67 FR 16826 (April 8, 2002).

Clarity of This Regulation

Executive Order 12866, 58 FR 51735 (September 30, 1993), and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this proposed rule easier to understand.

List of Subjects in 20 CFR Parts 1, 10, and 25

Administrative practice and procedure, Claims, Government employees, Labor, Workers' compensation.

For reasons set forth in the preamble, the Office of Workers' Compensation Programs, Department of Labor, amends 20 CFR chapter I as follows:

1. Part 1 is revised to read as follows:

PART 1—PERFORMANCE OF FUNCTIONS

Sec.

1.1

Under what authority does the Office of Workers' Compensation Programs operate?

1.2

What functions are assigned to OWCP?

1.3

What rules are contained in this chapter?

1.4

Where are other rules concerning OWCP functions found?

1.5

When was the former Bureau of Employees' Compensation abolished?

1.6

How were many of OWCP's current functions administered in the past?

Authority:

5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42 U.S.C. 7384d and 7385s-10; E.O. 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722; Secretary of Labor's Order No. 10-2009, 74 FR 218.

§ 1.1

Under what authority does the Office of Workers' Compensation Programs operate?

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

(b) Effective November 8, 2009, ESA was dissolved into its four component parts, including OWCP. Secretary of Labor's Order 10-2009 (74 FR 218) cancelled or modified all prior orders and directives referencing ESA, devolved certain authorities and responsibilities of ESA to OWCP, and delegated authority to the Director, OWCP, to administer the programs now assigned directly to OWCP.

§ 1.2

What functions are assigned to OWCP?

The Secretary of Labor has delegated authority and assigned responsibility to the Director of OWCP for the Department of Labor's programs under the following statutes:

(a) The Federal Employees' Compensation Act, as amended and extended (5 U.S.C. 8101

et seq.

), except 5 U.S.C. 8149 as it pertains to the Employees' Compensation Appeals Board.

(b) The War Hazards Compensation Act, as amended (42 U.S.C. 1701

et seq.

).

(c) The War Claims Act of 1948, as amended (50 U.S.C. App. 2003

et seq.

).

(d) The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384

et seq.

), except 42 U.S.C. 7385s-15 as it pertains to the Office of the Ombudsman, and activities, pursuant to Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000, assigned to the Secretary of Health and Human Services, the Secretary of Energy and the Attorney General.

(e) The Longshore and Harbor Workers' Compensation Act, as amended and extended (33 U.S.C. 901

et seq.

), except: 33 U.S.C. 919(d) with respect to administrative law judges in the Office of Administrative Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board; and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant Secretary of Labor for Occupational Safety and Health.

(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901

et seq.

)., including 26 U.S.C. 9501, except: 33 U.S.C. 919(d) as incorporated by 30 U.S.C. 932(a), with respect to administrative law judges in the Office of Administrative Law Judges; and 33 U.S.C. 921(b) as incorporated by 30 U.S.C. 932(a), as it applies to the Benefits Review Board.

§ 1.3

What rules are contained in this chapter?

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

Act, the War Claims Act and the Energy Employees Occupational Illness Compensation Program Act of 2000.

§ 1.4

Where are other rules concerning OWCP functions found?

(a) The rules of OWCP governing its functions under the Longshore and Harbor Workers' Compensation Act and its extensions are set forth in subchapter A of chapter VI of this title.

(b) The rules of OWCP governing its functions under the Black Lung Benefits Act program are set forth in subchapter B of chapter VI of this title.

(c) The rules and regulations of the Employees' Compensation Appeals Board are set forth in chapter IV of this title.

(d) The rules and regulations of the Benefits Review Board are set forth in Chapter VII of this title.

§ 1.5

When was the former Bureau of Employees' Compensation abolished?

By Secretary of Labor's Order issued September 23, 1974 (39 FR 34723), issued concurrently with Employment Standards Order 2-74 (39 FR 34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32 FR 12979), which had delegated authority and assigned responsibility for the various workers' compensation programs enumerated in § 1.2, except the Black Lung Benefits Program and the Energy Employees Occupational Illness Compensation Program not then in existence, to the Director of the former Bureau of Employees' Compensation.

§ 1.6

How were many of OWCP's current functions administered in the past?

(a) Administration of the Federal Employees' Compensation Act and the Longshore and Harbor Workers' Compensation Act was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the Commission was abolished and its functions were transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation within such Agency. By Reorganization Plan No. 19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 1271), said Bureau was transferred to the Department of Labor (DOL), and the authority formerly vested in the Administrator, Federal Security Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to make from time to time such provisions as he shall deem appropriate, authorizing the performance of any of his functions by any other officer, agency, or employee of the DOL.

(b) In 1972, two separate organizational units were established within the Bureau: an Office of Workmen's Compensation Programs (37 FR 20533) and an Office of Federal Employees' Compensation (37 FR 22979). In 1974, these two units were abolished and one organizational unit, the Office of Workers' Compensation Programs, was established in lieu of the Bureau of Employees' Compensation (39 FR 34722).

2. Part 10 is 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 the Office of Management and Budget (OMB)?

Definitions and Forms

10.5

What definitions apply to these regulations?

10.6

What special statutory definitions apply to dependents and survivors?

10.7

What forms are needed to process claims under the FECA?

Information in Program Records

10.10

Are all documents relating to claims filed under the FECA considered confidential?

10.11

Who maintains custody and control of FECA records?

10.12

How may a FECA claimant or beneficiary obtain copies of protected records?

10.13

What process is used by a person who wants to correct FECA-related documents?

Rights and Penalties

10.15

May compensation rights be waived?

10.16

What criminal and civil penalties may be imposed in connection with a claim under the FECA?

10.17

Is a beneficiary who defrauds the Government in connection with a claim for benefits still entitled to those benefits?

10.18

Can a beneficiary who is incarcerated based on a felony conviction still receive benefits?

Subpart B—Filing Notices and Claims; Submitting Evidence

Notices and Claims for Injury, Disease, and Death—Employee or Survivor's Actions

10.100

How and when is a notice of traumatic injury filed?

10.101

How and when is a notice of occupational disease filed?

10.102

How and when is a claim for wage loss compensation filed?

10.103

How and when is a claim for permanent impairment filed?

10.104

How and when is a claim for recurrence filed?

10.105

How and when is a notice of death and claim for benefits filed?

Notices and Claims for Injury, Disease, and Death—Employer's Actions

10.110

What should the employer do when an employee files a notice of traumatic injury or occupational disease?

10.111

What should the employer do when an employee files an initial claim for compensation due to disability or permanent impairment?

10.112

What should the employer do when an employee files a claim for continuing compensation due to disability?

10.113

What should the employer do when an employee dies from a work-related injury or disease?

Evidence and Burden of Proof

10.115

What evidence is needed to establish a claim?

10.116

What additional evidence is needed in cases based on occupational disease?

10.117

What happens if, in any claim, the employer contests any of the facts as stated by the claimant?

10.118

Does the employer participate in the claims process in any other way?

10.119

What action will OWCP take with respect to information submitted by the employer?

10.120

May a claimant submit additional evidence?

10.121

What happens if OWCP needs more evidence from the claimant?

Decisions on Entitlement to Benefits

10.125

How does OWCP determine entitlement to benefits?

10.126

What does the decision contain?

10.127

To whom is the decision sent?

Subpart C—Continuation of Pay

10.200

What is continuation of pay?

Eligibility for COP

10.205

What conditions must be met to receive COP?

10.206

May an employee who uses leave after an injury later decide to use COP instead?

10.207

May an employee who returns to work, then stops work again due to the effects of the injury, receive COP?

Responsibilities

10.210

What are the employee's responsibilities in COP cases?

10.211

What are the employer's responsibilities in COP cases?

Calculation of COP

10.215

How does OWCP compute the number of days of COP used?

10.216

How is the pay rate for COP calculated?

10.217

Is COP charged if the employee continues to work, but in a different job that pays less?

Controversion and Termination of COP

10.220

When is an employer not required to pay COP?

10.221

How is a claim for COP controverted?

10.222

When may an employer terminate COP which has already begun?

10.223

Are there other circumstances under which OWCP will not authorize payment of COP?

10.224

What happens if OWCP finds that the employee is not entitled to COP after it has been paid?

Subpart D—Medical and Related Benefits

Emergency Medical Care

10.300

What are the basic rules for authorizing emergency medical care?

10.301

May the physician designated on Form CA-16 refer the employee to another medical specialist or medical facility?

10.302

Should the employer authorize medical care if he or she doubts that the injury occurred, or that it is work-related?

10.303

Should the employer use a Form CA-16 to authorize medical testing when an employee is exposed to a workplace hazard just once?

10.304

Are there any exceptions to these procedures for obtaining medical care?

Medical Treatment and Related Issues

10.310

What are the basic rules for obtaining medical care?

10.311

What are the special rules for the services of chiropractors?

10.312

What are the special rules for the services of clinical psychologists?

10.313

Will OWCP pay for preventive treatment?

10.314

Will OWCP pay for the services of an attendant?

10.315

Will OWCP pay for transportation to obtain medical treatment?

10.316

After selecting a treating physician, may an employee choose to be treated by another physician instead?

Directed Medical Examinations

10.320

Can OWCP require an employee to be examined by another physician?

10.321

What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?

10.322

Who pays for second opinion and referee examinations?

10.323

What are the penalties for failing to report for or obstructing a second opinion or referee examination?

10.324

May an employer require an employee to undergo a physical examination in connection with a work-related injury?

Medical Reports

10.330

What are the requirements for medical reports?

10.331

How and when should the medical report be submitted?

10.332

What additional medical information will OWCP require to support continuing payment of benefits?

10.333

What additional medical information will OWCP require to support a claim for a schedule award?

Medical Bills

10.335

How are medical bills submitted?

10.336

What are the time frames for submitting bills?

10.337

If an employee is only partially reimbursed 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?

Compensation for Death

10.410

Who is entitled to compensation in case of death, and what are the rates of compensation payable in death cases?

10.411

What are the maximum and minimum rates of compensation in death cases?

10.412

Will OWCP pay the costs of burial and transportation of the remains?

10.413

May a schedule award be paid after an employee's death?

10.414

What reports of dependents are needed in death cases?

10.415

What must a beneficiary do if the number of beneficiaries decreases?

10.416

How does a change in the number of beneficiaries affect the amount of compensation paid to the other beneficiaries?

10.417

What reports are needed when compensation payments continue for children over age 18?

Adjustments to Compensation

10.420

How are cost-of-living adjustments applied?

10.421

May a beneficiary receive other kinds of payments from the Federal Government concurrently with compensation?

10.422

May compensation payments be issued in a lump sum?

10.423

May compensation payments be assigned to, or attached by, creditors?

10.424

May someone other than the beneficiary be designated to receive compensation payments?

10.425

May compensation be claimed for periods of restorable leave?

Overpayments

10.430

How does OWCP notify an individual of a payment made?

10.431

What does OWCP do when an overpayment is identified?

10.432

How can an individual present evidence to OWCP in response to a preliminary notice of an overpayment?

10.433

Under what circumstances can OWCP waive recovery of an overpayment?

10.434

If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it?

10.435

Is an individual responsible for an overpayment that resulted from an error made by OWCP or another Government agency?

10.436

Under what circumstances would recovery of an overpayment defeat the purpose of the FECA?

10.437

Under what circumstances would recovery of an overpayment be against equity and good conscience?

10.438

Can OWCP require the individual who received the overpayment to submit additional financial information?

10.439

What is addressed at a pre-recoupment hearing?

10.440

How does OWCP communicate its final decision concerning recovery of an overpayment, and what appeal right accompanies it?

10.441

How are overpayments collected?

Subpart F—Continuing Benefits

Rules and Evidence

10.500

What are the basic rules governing continuing receipt of compensation benefits and return to work?

10.501

What medical evidence is necessary to support continuing receipt of compensation benefits?

10.502

How does OWCP evaluate evidence in support of continuing receipt of compensation benefits?

10.503

Under what circumstances may OWCP reduce or terminate compensation benefits?

Return to Work—Employer's Responsibilities

10.505

What actions must the employer take?

10.506

May the employer monitor the employee's medical care?

10.507

How should the employer make an offer of suitable work?

10.508

May relocation expenses be paid for an employee who would need to move to accept an offer of reemployment?

10.509

If an employee's light duty job is eliminated due to downsizing, what is the effect on compensation?

10.510

When may a light duty job form the basis of a loss of wage-earning capacity determination?

10.511

How may a loss of wage-earning capacity determination be modified?

Return to Work—Employee's Responsibilities

10.515

What actions must the employee take with respect to returning to work?

10.516

How will an employee know if OWCP considers a job to be suitable?

10.517

What are the penalties for refusing to accept a suitable job offer?

10.518

Does OWCP provide services to help employees return to work?

10.519

What action will OWCP take if an employee refuses to undergo vocational rehabilitation?

10.520

How does OWCP determine compensation after an employee completes a vocational rehabilitation program?

10.521

If an employee elects to receive retirement benefits instead of FECA benefits, what effect may such an election have on that employee's entitlement to FECA compensation?

Reports of Earnings From Employment and Self-Employment

10.525

What information must the employee report?

10.526

Must the employee report volunteer activities?

10.527

Does OWCP verify reports of earnings?

10.528

What action will OWCP take if the employee fails to file a report of activity indicating an ability to work?

10.529

What action will OWCP take if the employee files an incomplete report?

Reports of Dependents

10.535

How are dependents defined, and what information must the employee report?

10.536

What is the penalty for failing to submit a report of dependents?

10.537

What reports are needed when compensation payments continue for children over age 18?

Reduction and Termination of Compensation

10.540

When and how is compensation reduced or terminated?

10.541

What action will OWCP take after issuing written notice of its intention to reduce or terminate compensation?

Subpart G—Appeals Process

10.600

How can final decisions of OWCP be reviewed?

Reconsiderations and Reviews by the Director

10.605

What is reconsideration?

10.606

How does a claimant request reconsideration?

10.607

What is the time limit for requesting reconsideration?

10.608

How does OWCP decide whether to grant or deny the request for reconsideration?

10.609

How does OWCP decide whether new evidence requires modification of the prior decision?

10.610

What is a review by the Director?

Hearings

10.615

What is a hearing?

10.616

How does a claimant obtain a hearing?

10.617

How is an oral hearing conducted?

10.618

How is a review of the written record conducted?

10.619

May subpoenas be issued for witnesses and documents?

10.620

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?

Review 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?

10.704

What penalties apply to representatives who collect a fee without approval?

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 is the amount of the recovery of the FECA beneficiary determined?

10.712

How much of any settlement or judgment must be paid to the United States?

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 (LEO) covered under the FECA?

10.736

What are the time limits for filing a LEO claim?

10.737

How is a LEO claim filed, and who can file a LEO claim?

10.738

Under what circumstances are benefits payable in LEO claims?

10.739

What kind of objective evidence of a potential Federal crime must exist for coverage to be extended?

10.740

In what situations will OWCP automatically presume that a law enforcement officer is covered by the FECA?

10.741

HHow are benefits calculated in LEO claims?

Subpart I—Information for Medical Providers

Medical Records and Bills

10.800

How do providers enroll with OWCP for authorizations and billing?

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

How 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 answer 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 does the recommended decision become final?

10.825

What are the effects of exclusion?

10.826

How can an excluded provider be reinstated?

Subpart J—Death Gratuity

10.900

What is the death gratuity under this subpart?

10.901

Which employees are covered under this subpart?

10.902

Does every employee's death due to injuries incurred in connection with his or her service with an Armed Force in a contingency operation qualify for the death gratuity?

10.903

Is the death gratuity payment applicable retroactively?

10.904

Does a death as a result of occupational disease qualify for payment of the death gratuity?

10.905

If an employee incurs a covered injury in connection with his or her service with an Armed Force in a contingency operation but does not die of the injury until years later, does the death qualify for payment of the death gratuity?

10.906

What special statutory definitions apply to survivors under this subpart?

10.907

What order of precedence will OWCP use to determine which survivors are entitled to receive the death gratuity payment under this subpart?

10.908

Can an employee designate alternate beneficiaries to receive a portion of the death gratuity payment?

10.909

How does an employee designate a variation in the order or percentage of gratuity payable to survivors and how does the employee designate alternate beneficiaries?

10.910

What if a person entitled to a portion of the death gratuity payment dies after the death of the covered employee but before receiving his or her portion of the death gratuity?

10.911

How is the death gratuity payment process initiated?

10.912

What is required to establish a claim for the death gratuity payment?

10.913

In what situations will OWCP consider that an employee incurred injury in connection with his or her service with an Armed Force in a contingency operation?

10.914

What are the responsibilities of the employing agency in the death gratuity payment process?

10.915

What are the responsibilities of OWCP in the death gratuity payment process?

10.916

How is the amount of the death gratuity calculated?

Authority:

5 U.S.C. 301, 8102a, 8103, 8145 and 8149; 31 U.S.C. 3716 and 3717; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263; Secretary of Labor's Order No. 10-2009, 74 FR 218.

Subpart A—General Provisions

Introduction

§ 10.0

What are the provisions of the FECA, in general?

The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C. 8101

et seq.

) provides for the payment of workers' compensation benefits to civilian officers and employees of all branches of the Government of the United States. The regulations in this part describe the rules for filing, processing, and paying claims for benefits under the FECA. Proceedings under the FECA are non-adversarial in nature.

(a) The FECA has been amended and extended a number of times to provide workers' compensation benefits to volunteers in the Civil Air Patrol (5 U.S.C. 8141), members of the Reserve Officers' Training Corps (5 U.S.C. 8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps enrollees and Volunteers in Service to America (5 U.S.C. 8143), members of the National Teachers Corps (5 U.S.C. 8143a), certain student employees (5 U.S.C. 5351 and 8144), certain law enforcement officers not employed by the United States (5 U.S.C. 8191-8193), and various other classes of persons who provide or have provided services to the Government of the United States.

(b) The FECA provides for payment of several types of benefits, including compensation for wage loss, schedule awards, medical and related benefits, and vocational rehabilitation services for conditions resulting from injuries sustained in performance of duty while in service to the United States.

(c) The FECA also provides for payment of monetary compensation to specified survivors of an employee whose death resulted from a work-related injury and for payment of certain burial expenses subject to the provisions of 5 U.S.C. 8134.

(d) All types of benefits and conditions of eligibility listed in this section are subject to the provisions of the FECA and of this part. This section shall not be construed to modify or enlarge upon the provisions of the FECA.

§ 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 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.

§ 10.2

What do these regulations contain?

This part 10 sets forth the regulations governing administration of all claims filed under the FECA, except to the extent specified in certain particular provisions. Its provisions are intended to assist persons seeking compensation benefits under the FECA, as well as personnel in the various Federal agencies and the Department of Labor who process claims filed under the FECA or who perform administrative functions with respect to the FECA. This part 10 applies to part 25 of this chapter except as modified by part 25. The various subparts of this part contain the following:

(a)

Subpart A.

The general statutory and administrative framework for processing claims under the FECA. It contains a statement of purpose and scope, together with definitions of terms, descriptions of basic forms, information about the disclosure of OWCP records, and a description of rights and penalties under the FECA, including convictions for fraud.

(b)

Subpart B.

The rules for filing notices of injury and claims for benefits under the FECA. It also addresses evidence and burden of proof, as well as the process of making decisions concerning eligibility for benefits.

(c)

Subpart C.

The rules governing claims for and payment of continuation of pay.

(d)

Subpart D.

The rules governing emergency and routine medical care, second opinion and referee medical examinations directed by OWCP, and medical reports and records in general. It also addresses the kinds of treatment which may be authorized and how medical bills are paid.

(e)

Subpart E.

The rules relating to the payment of monetary compensation benefits for disability, impairment and death. It includes the provisions for identifying and processing overpayments of compensation.

(f)

Subpart F.

The rules governing the payment of continuing compensation benefits. It includes provisions concerning the employee's and the employer's responsibilities in returning the employee to work. It also contains provisions governing reports of earnings and dependents, recurrences, and reduction and termination of compensation benefits.

(g)

Subpart G.

The rules governing the appeals of decisions under the FECA. It includes provisions relating to hearings, reconsiderations, and appeals before the Employees' Compensation Appeals Board.

(h)

Subpart H.

The rules concerning legal representation and for adjustment and recovery from a third party. It also contains provisions relevant to three groups of employees whose status requires special application of the provisions of the FECA: Federal grand and petit jurors, Peace Corps volunteers, and non-Federal law enforcement officers.

(i)

Subpart I.

Information for medical providers. It includes rules for medical reports, medical bills, and the OWCP medical fee schedule, as well as the provisions for exclusion of medical providers.

(j)

Subpart J.

Death Gratuity. The rules relating to the payment of the death gratuity benefit under 5 U.S.C. 8102a.

§ 10.3

Have the collection of information requirements of this part been approved by the Office of Management and Budget (OMB)?

The collection of information requirements in this part have been approved by OMB and assigned OMB control numbers 1240-0001, 1240-0007, 1240-0008, 1240-0009, 1240-0012, 1240-0013, 1240-0015, 1240-0016, 1240-0017, 1240-0018, 1240-0019, 1240-0022, 1240-0044, 1240-0045, 1240-0046, 1240-0047, 1240-0049, 1240-0050 and 1240-0051.

Definitions and Forms

§ 10.5

What definitions apply to these regulations?

Certain words and phrases found in this part are defined in this section or in the FECA. Some other words and phrases that are used only in limited situations are defined in the later subparts of these regulations.

(a)

Benefits

or

Compensation

in these regulations means Compensation as defined by the FECA at 5 U.S.C. 8101(12), which is the money OWCP pays to or on behalf of a beneficiary from the Employees' Compensation Fund. The terms Benefits and Compensation include payments for lost wages, loss of wage-earning capacity, and permanent physical impairment. The terms Benefits and Compensation also include the money paid to beneficiaries for an employee's death, including both death benefits and any death gratuity benefit. 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 under 5 U.S.C. 8111, services of an attendant and funeral expenses under 5 U.S.C. 8134, but do not include continuation of pay as provided by 5 U.S.C. 8118.

(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 pursuant to 5 U.S.C. 8101(1)(A);

(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 pursuant to 5 U.S.C. 8101(1)(B);

(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 pursuant to 5 U.S.C. 8101(1)(C);

(4) An individual appointed to a position on the office staff of a former President under section 1(b) of the Act of August 25, 1958 (72 Stat. 838) pursuant to 5 U.S.C. 8101(1)(E); or

(5) An individual selected and serving as a Federal petit or grand juror pursuant to 5 U.S.C. 8101(1)(F).

(i)

Employer

or

Agency

means any civil agency or instrumentality of the United States Government, or any other organization, group or institution employing an individual defined as an “employee” by this section. These terms also refer to officers and employees of an employer having responsibility for the supervision, direction or control of employees of that employer as an “immediate superior,” and to other employees designated by the employer to carry out the functions vested in the employer under the FECA and this part, including officers or employees delegated responsibility by an employer for authorizing medical treatment for injured employees.

(j)

Entitlement

means entitlement to benefits as determined by OWCP under the FECA and the procedures described in this part.

(k)

FECA

means the Federal Employees' Compensation Act, as amended.

(l)

Hospital services

means services and supplies provided by hospitals within the scope of their practice as defined by State law.

(m)

Impairment

means any anatomic or functional abnormality or loss. A permanent impairment is any such

abnormality or loss after maximum medical improvement has been achieved.

(n)

Knowingly

means with knowledge, consciously, willfully or intentionally.

(o)

Medical services

means services and supplies provided by or under the supervision of a physician. Reimbursable chiropractic services are limited to physical examinations (and related laboratory tests), x-rays performed to diagnose a subluxation of the spine and treatment consisting of manual manipulation of the spine to correct a subluxation.

(p)

Medical support services

means services, drugs, supplies and appliances provided by a person other than a physician or hospital.

(q)

Occupational disease or illness

means a condition produced by the work environment over a period longer than a single workday or shift.

(r)

OWCP

means the Office of Workers' Compensation Programs.

(s)

Pay rate for compensation purposes

means the employee's pay, as determined under 5 U.S.C. 8114, at the time of injury, the time disability begins or the time compensable disability recurs if the recurrence begins more than six months after the injured employee resumes regular full-time employment with the United States, whichever is greater, except as otherwise determined under 5 U.S.C. 8113 with respect to any period.

(t)

Physician

means an individual defined as such in 5 U.S.C. 8101(2), except during the period for which his or her license to practice medicine has been suspended or revoked by a State licensing or regulatory authority.

(u)

Qualified hospital

means any hospital licensed as such under State law which has not been excluded under the provisions of subpart I of this part. Except as otherwise provided by regulation, a qualified hospital shall be deemed to be designated or approved by OWCP.

(v)

Qualified physician

means any physician who has not been excluded under the provisions of subpart I of this part. Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP.

(w)

Qualified provider of medical support services or supplies

means any person, other than a physician or a hospital, who provides services, drugs, supplies and appliances for which OWCP makes payment, who possesses any applicable licenses required under State law, and who has not been excluded under the provisions of subpart I of this part.

(x)

Recurrence of disability

means an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without an intervening injury or new exposure to the work environment that caused the illness. This term also means an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee's physical limitations due to his or her work-related injury or illness is withdrawn or when the physical requirements of such an assignment are altered so that they exceed his or her established physical limitations. A recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct, non-performance of job duties or other downsizing or where a loss of wage-earning capacity determination as provided by 5 U.S.C. 8115 is in place.

(y)

Recurrence of medical condition

means a documented need for further medical treatment after release from treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment for the original condition or injury is not considered a “need for further medical treatment after release from treatment,” nor is an examination without treatment.

(z)

Representative

means an individual or law firm properly authorized by a claimant in writing to act for the claimant in connection with a claim or proceeding under the FECA or this part.

(aa)

Student

means an individual defined at 5 U.S.C. 8101(17). Two terms used in that particular definition are further defined as follows:

(1)

Additional type of educational or training institution

means a technical, trade, vocational, business or professional school accredited or licensed by the United States Government or a State Government or any political subdivision thereof providing courses of not less than three months duration, that prepares the individual for a livelihood in a trade, industry, vocation or profession.

(2)

Year beyond the high school level

means:

(i) The 12-month period beginning the month after the individual graduates from high school, provided he or she had indicated an intention to continue schooling within four months of high school graduation, and each successive 12-month period in which there is school attendance or the payment of compensation based on such attendance; or

(ii) If the individual has indicated that he or she will not continue schooling within four months of high school graduation, the 12-month period beginning with the month that the individual enters school to continue his or her education, and each successive 12-month period in which there is school attendance or the payment of compensation based on such attendance.

(bb)

Subluxation

means an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained in the reading of x-rays.

(cc)

Surviving spouse

means the husband or wife living with or dependent for support upon a deceased employee at the time of his or her death, or living apart for reasonable cause or because of the deceased employee's desertion, unless otherwise defined under the FECA for the specific benefit such as the FECA death gratuity at 5 U.S.C. 8102a.

(dd)

Temporary aggravation of a pre-existing condition

means that factors of employment have directly caused that condition to be more severe for a limited period of time and have left no greater impairment than existed prior to the employment injury.

(ee)

Traumatic injury

means a condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by external force, including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body affected.

§ 10.6

What special statutory definitions apply to dependents and survivors?

(a) 5 U.S.C. 8133 provides that certain benefits are payable to certain enumerated survivors of employees who have died from an injury sustained in the performance of duty.

(b) 5 U.S.C. 8148 also provides that certain other benefits may be payable to certain family members of employees who have been incarcerated due to a felony conviction.

(c) 5 U.S.C. 8110(b) further provides that any employee who is found to be eligible for a basic benefit shall be entitled to have such basic benefit augmented at a specified rate for certain persons who live in the beneficiary's household or who are dependent upon the beneficiary for support.

(d) 5 U.S.C. 8101, 8110, 8133, and 8148, which define the nature of such survivorship or dependency necessary

to qualify a beneficiary for a survivor's benefit or an augmented benefit, apply to the provisions of this part but not to the death gratuity provided under subpart J.

(e) 5 U.S.C. 8102a provides the definitions for survivorship or dependency necessary to qualify as a beneficiary for a death gratuity benefit as well as allowing half the death gratuity benefit to be paid to alternate beneficiary.

§ 10.7

What forms are needed to process claims under the FECA?

(a) Notice of injury, claims and certain specified reports shall be made on forms prescribed by OWCP. Employers shall not modify these forms or use substitute forms. Employers are expected to maintain an adequate supply of the basic forms needed for the proper recording and reporting of injuries.

Form No.

Title

(1) CA-1

Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation.

(2) CA-2

Notice of Occupational Disease and Claim for Compensation.

(3) CA-2a

Notice of Employee's Recurrence of Disability and Claim for Pay/Compensation.

(4) CA-3

Report of Work Status.

(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-7a

Time Analysis Form.

(10) CA-7b

Leave Buy Back (LBB) Worksheet/Certification and Election.

(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.

(15) CA-40

Designation of a Recipient of the Federal Employees' Compensation Act Death Gratuity Payment under Section 1105 of Public Law 110-181 (Section 8102a).

(16) CA-41

Claim for Survivor Benefits Under the Federal Employees' Compensation Act Section 8102a Death Gratuity.

(17) CA-42

Official Notice of Employees' Death for Purposes of FECA Section 8102a Death Gratuity.

(18) CA-1108

Statement of Recovery Letter with Long Form.

(19) CA-1122

Statement of Recovery Letter with Short Form.

(b) Copies of the forms listed in this paragraph are available for public inspection at the Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, DC 20210. They may also be obtained from district offices, employers (

i.e.,

safety and health offices, supervisors), and the Internet, at

http://www.dol.gov.

Information in Program Records

§ 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 or under the routine uses provided by DOL/GOVT-1 if such release is consistent with the purpose for which the record was created.

§ 10.11

Who maintains custody and control of FECA records?

All records relating to claims for benefits filed under the FECA, including any copies of such records maintained by an employing agency, are covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal Employees' Compensation Act File). This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/GOVT-1 are official records of OWCP. The protection, release, inspection and copying of records covered by DOL/GOVT-1 shall be accomplished in accordance with the rules, guidelines and provisions of this part, as well as those contained in 29 CFR parts 70 and 71, and with the notice of the system of records and routine uses published in the

Federal Register

. All questions relating to access/disclosure, and/or amendment of FECA records maintained by OWCP or the employing agency, are to be resolved in accordance with this section.

§ 10.12

How may a FECA claimant or beneficiary obtain copies of protected records?

(a) A claimant seeking copies of his or her official FECA file should address a request to the District Director of the OWCP office having custody of the file. A claimant seeking copies of FECA-related documents in the custody of the employer should follow the procedures established by that agency.

(b)(1) While an employing agency may establish procedures that an injured employee or beneficiary should follow in requesting access to documents it maintains, any decision issued in response to such a request must comply with the rules and regulations of the Department of Labor which govern all other aspects of safeguarding these records.

(2) No employing agency has the authority to issue determinations with respect to requests for the correction or amendment of records contained in or covered by DOL/GOVT-1. That authority is within the exclusive control of OWCP. Thus, any request for correction or amendment received by an employing agency must be referred to OWCP for review and decision.

(3) Any administrative appeal taken from a denial issued by the employing agency or OWCP shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.

§ 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

§ 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.

§ 10.16

What criminal and civil penalties may be imposed in connection with a claim under the FECA?

(a) A number of statutory provisions make it a crime to file a false or fraudulent claim or statement with the Government in connection with a claim under the FECA, or to wrongfully impede a FECA claim. Included among these provisions are sections 287, 1001, 1920, and 1922 of title 18, United States Code. Enforcement of these and other 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. Furthermore, a civil action to recover benefits paid erroneously under the FECA may be maintained under the False Claims Act, 31 U.S.C. 3729-3733.

§ 10.17

Is a beneficiary who defrauds the Government in connection with a claim for benefits still entitled to those benefits?

When a beneficiary either pleads guilty to or is found guilty on either Federal or State criminal charges of defrauding the Federal Government in connection with a claim for benefits, the beneficiary's entitlement to any further compensation benefits will terminate effective the date of conviction, which is the date of the verdict or, in the case of a plea bargain, the date the claimant made the plea in open court (not the date of sentencing or the date court papers were signed). The employing agency may, upon request, be required to provide the documentation needed for termination under this section. Termination of entitlement under this section is not affected by any subsequent change in or recurrence of the beneficiary's medical condition.

§ 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. A beneficiary has an affirmative duty to provide notice of any conviction and imprisonment. The employing agency shall provide OWCP any information or documentation they may have concerning such matters.

(b) If the beneficiary has eligible dependents, OWCP will pay compensation to such dependents at a reduced rate during the period of his or her incarceration, by applying the percentages of 5 U.S.C. 8133(a)(1) through (5) to the beneficiary's gross current entitlement rather than to the beneficiary's monthly pay.

(c) If OWCP's decision on entitlement is pending when the period of incarceration begins, and compensation is due for a period of time prior to such incarceration, payment for that period will only be made to the beneficiary following his or her release.

Subpart B—Filing Notices and Claims; Submitting Evidence

Notices and Claims for Injury, Disease, and Death—Employee or Survivor's Actions

§ 10.100

How and when is a notice of traumatic injury filed?

(a) To claim benefits under the FECA, an employee who sustains a work-related traumatic injury must give notice of the injury in writing on Form CA-1, which may be obtained from the employer or from the Internet at

www.dol.gov

under forms. 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. All such notices should be submitted electronically wherever feasible to facilitate processing of such claims. All employers that currently do not have such capability should create such a method by December 31, 2012.

(b) For injuries sustained on or after September 7, 1974, a notice of injury must be filed within three years of the injury. (The form contains the necessary words of claim.) The requirements for filing notice are further described in 5 U.S.C. 8119. Also see § 10.205 concerning time requirements for filing claims for continuation of pay.

(1) If the claim is not filed within three years, compensation may still be allowed if notice of injury was given within 30 days or the employer had actual knowledge of the injury or death within 30 days after occurrence. This knowledge may consist of written records or verbal notification. An entry into an employee's medical record may also satisfy this requirement if it is sufficient to place the employer on notice of a possible work-related injury or disease.

(2) OWCP may excuse failure to comply with the three-year time requirement because of truly exceptional circumstances (for example, being held prisoner of war).

(3) The claimant may withdraw his or her claim (but not the notice of injury) by so requesting in writing to OWCP at any time before OWCP determines eligibility for benefits. Any continuation of pay (COP) granted to an employee after a claim is withdrawn must be charged to sick or annual leave, or considered an overpayment of pay consistent with 5 U.S.C. 5584, at the employee's option.

(c) However, in cases of latent disability, the time for filing claim does not begin to run until the employee has a compensable disability and is aware, or reasonably should have been aware, of the causal relationship between the disability and the employment (see 5 U.S.C. 8122(b)).

§ 10.101

How and when is a notice of occupational disease filed?

(a) To claim benefits under the FECA, an employee who has a disease which he or she believes to be work-related must give notice of the condition in writing on Form CA-2, which may be obtained from the employer or from the Internet at

www.dol.gov

under forms. 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. All such notices should be submitted electronically wherever feasible to facilitate processing of such claims. All employers that currently do not have such capability should create such a method by December 31, 2012. The claimant may withdraw his or her claim (but not the notice of occupational disease) by so requesting in writing to OWCP at any

time before OWCP determines eligibility for benefits.

(b) For occupational diseases sustained as a result of exposure to injurious work factors that occurs on or after September 7, 1974, a notice of occupational disease must be filed within three years of the onset of the condition. (The form contains the necessary words of claim.) The requirements for timely filing are described in § 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)).

§ 10.102

How and when is a claim for wage loss compensation filed?

(a) Form CA-7 is used to claim compensation for periods of disability not covered by COP.

(1) An employee who is disabled with loss of pay for more than three calendar days due to an injury, or someone acting on his or her behalf, must file Form CA-7 before compensation can be paid.

(2) The employee shall complete the front of Form CA-7 and submit the form to the employer for completion and transmission to OWCP. The form should be completed as soon as possible, but no more than 14 calendar days after the date pay stops due to the injury or disease. All such notices should be submitted electronically wherever feasible to facilitate processing of such claims. All employers that currently do not have such capability should create such a method by December 31, 2012.

(3) The requirements for filing claims are further described in 5 U.S.C. 8121.

(b) Form CA-7 is also used to claim compensation for additional periods of disability following the initial injury.

(1) It is the employee's responsibility to submit Form CA-7. Without receipt of such claim, OWCP has no knowledge of continuing wage loss. Therefore, while disability continues, the employee should submit a claim on Form CA-7 each two weeks until otherwise instructed by OWCP.

(2) The employee shall complete the front of Form CA-7 and submit the form to the employer for completion and transmission to OWCP.

(3) The employee is responsible for submitting, or arranging for the submittal of, medical evidence to OWCP which establishes both that disability continues and that the disability is due to the work-related injury. Form CA-20a is submitted with Form CA-7 for this purpose.

§ 10.103

How and when is a claim for permanent impairment filed?

Form CA-7 is used to claim compensation for impairment to a body part covered under the schedule established by 5 U.S.C. 8107. All such notices should be submitted electronically wherever feasible to facilitate processing of such claims. All employers that currently do not have such capability should create such a method by December 31, 2012. If Form CA-7 has already been filed to claim disability compensation, an employee may file a claim for such impairment by sending a letter to OWCP which specifies the nature of the benefit claimed. OWCP may create a form specifically for schedule award claims; if that form is created, only that form may be used to file a claim under 5 U.S.C. 8107.

§ 10.104

How and when is a claim for recurrence filed?

(a) A recurrence should be reported on Form CA-2a if it causes the employee to lose time from work and incur a wage loss, or if the employee experiences a renewed need for treatment after previously being released from care. However, a notice of recurrence should not be filed when a new injury, new occupational disease, or new event contributing to an already-existing occupational disease has occurred. In these instances, the employee should file Form CA-1 or CA-2.

(b) The employee has the burden of establishing by the weight of reliable, probative and substantial evidence that the recurrence of disability is causally related to the original injury.

(1) The employee must include a detailed factual statement as described on Form CA-2a. The employer may submit comments concerning the employee's statement.

(2) The employee should arrange for the submittal of a detailed medical report from the attending physician as described on Form CA-2a. The employee should also submit, or arrange for the submittal of, similar medical reports for any examination and/or treatment received after returning to work following the original injury.

(c) A claim for recurrence of disability is not available where OWCP has issued a loss of wage-earning capacity determination. Under that circumstance, the only method for claiming additional wage loss compensation is through a request to modify that determination. However, OWCP is not precluded from adjudicating a limited period of disability following the issuance of a loss of wage-earning capacity decision, i.e., where an employee has a demonstrated need for surgery.

§ 10.105

How and when is a notice of death and claim for benefits filed?

(a) If an employee dies from a work-related traumatic injury or an occupational disease, any survivor may file a claim for death benefits using Form CA-5 or CA-5b, which may be obtained from the employer or from the Internet at

http://www.dol.gov

under forms. The survivor must provide this notice in writing and forward it to the employer. Another person, including the employer, may do so on the survivor's behalf. The survivor may also submit the completed Form CA-5 or CA-5b directly to OWCP. The survivor shall disclose the SSNs of all survivors on whose behalf claim for benefits is made in addition to the SSN of the deceased employee. All such notices should be submitted electronically wherever feasible to facilitate processing of such claims. All employers that currently do not have such capability should create such a method by December 31, 2012. The survivor may withdraw his or her claim (but not the notice of death) by so requesting in writing to OWCP at any time before OWCP determines eligibility for benefits.

(b) For deaths that occur on or after September 7, 1974, a notice of death must be filed within three years of the death. The form contains the necessary words of claim. The requirements for timely filing are described in § 10.100(b)(1) through (3).

(c) However, in cases of death due to latent disability, the time for filing the claim does not begin to run until the survivor is aware, or reasonably should have been aware, of the causal relationship between the death and the employment (see 5 U.S.C. 8122(b)).

(d) The filing of a notice of injury or occupational disease will satisfy the time requirements for a death claim based on the same injury or occupational disease. If an injured employee or someone acting on the employee's behalf does not file a claim before the employee's death, the right to claim compensation for disability other than medical expenses ceases and does not survive.

(e) A survivor must be alive to receive any payment; there is no vested right to such payment. A report as described in § 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

§ 10.110

What should the employer do when an employee files a notice of traumatic injury or occupational disease?

(a) The employer shall complete the agency portion of Form CA-1 (for traumatic injury) or CA-2 (for occupational disease) no more than 10 working days after receipt of notice from the employee. The employer shall also complete the Receipt of Notice and give it to the employee, along with copies of both sides of Form CA-1 or Form CA-2.

(b) The employer must complete and transmit the form to OWCP within 10 working days after receipt of notice from the employee if the injury or disease will likely result in:

(1) A medical charge against OWCP;

(2) Disability for work beyond the day or shift of injury;

(3) The need for more than two appointments for medical examination and/or treatment on separate days, leading to time loss from work;

(4) Future disability;

(5) Permanent impairment; or

(6) Continuation of pay pursuant to 5 U.S.C. 8118.

(c) The employer should not wait for submittal of supporting evidence before sending the form to OWCP.

(d) If none of the conditions in paragraph (b) of this section applies, the Form CA-1 or CA-2 shall be retained as a permanent record in the Employee Medical Folder in accordance with the guidelines established by the Office of Personnel Management.

§ 10.111

What should the employer do when an employee files an initial claim for compensation due to disability or permanent impairment?

(a) Except for employees covered by paragraph (d) of this section, 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.

(d) Postal Service employees are not entitled to compensation or continuation of pay for the waiting period, the first three days of disability. Such employees may use annual leave, sick leave or leave without pay during that period; however, if the disability exceeds 14 days, the employee may have their sick leave or annual leave reinstated or receive pay for the time spent on leave without pay. This waiting period does not apply to the provision of medical care, and days of time loss for medical treatment only with no work-related disability do not count as part of the waiting period. A Postal Service employee seeking wage loss compensation for this period should utilize Form CA-7 to claim such benefits.

§ 10.112

What should the employer do when an employee files a claim for continuing compensation due to disability?

(a) If the employee continues in a leave-without-pay status due to a work-related injury after the period of compensation initially claimed on Form CA-7, the employer shall furnish the employee with another Form CA-7 for the purpose of claiming continuing compensation.

(b) Upon receipt of Form CA-7 from the employee, or someone acting on his or her behalf, the employer shall complete the appropriate portions of the form. As soon as possible, but no more than five working days after receipt from the employee, the employer shall forward the completed Form CA-7 and any accompanying medical report to OWCP.

§ 10.113

What should the employer do when an employee dies from a work-related injury or disease?

(a) The employer shall immediately report a death due to a work-related traumatic injury or occupational disease to OWCP by telephone, telegram, or facsimile (fax). No more than 10 working days after notification of the death, the employer shall complete and send Form CA-6 to OWCP.

(b) When possible, the employer shall furnish a Form CA-5 or CA-5b to all persons likely to be entitled to compensation for death of an employee. The employer should also supply information about completing and filing the form.

(c) The employer shall promptly transmit Form CA-5 or CA-5b to OWCP. The employer shall also promptly transmit to OWCP any other claim or paper submitted which appears to claim compensation on account of death.

Evidence and Burden of Proof

§ 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 a request for additional evidence to the claimant and to his or her representative, if any; however the burden of proof still remains with the claimant. Evidence should be submitted in writing. The evidence submitted must be reliable, probative and substantial. Each claim for compensation must meet five requirements before OWCP can accept it. These requirements, which the employee must establish to meet his or her burden of proof, are as follows:

(a) The claim was filed within the time limits specified by the FECA;

(b) The injured person was, at the time of injury, an employee of the United States as defined in 5 U.S.C. 8101(1) and § 10.5(h) of this part;

(c) The fact that an injury, disease or death occurred;

(d) The injury, disease or death occurred while the employee was in the performance of duty; and

(e) The medical condition for which compensation or medical benefits is claimed is causally related to the claimed injury, disease or death. Neither the fact that the condition manifests itself during a period of Federal employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship.

(f) In all claims, the claimant is responsible for submitting, or arranging for submittal of, a medical report from the attending physician. For wage loss benefits, the claimant must also submit medical evidence showing that the condition claimed is disabling. The rules for submitting medical reports are found in §§ 10.330 through 10.333.

§ 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 should submit 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.

§ 10.117

What happens if, in any claim, the employer contests any of the facts as stated by the claimant?

(a) An employer who has reason to disagree with any aspect of the claimant's report shall submit a statement to OWCP that specifically describes the factual allegation or argument with which it disagrees and provide evidence or argument to support its position. The employer may include supporting documents such as witness statements, medical reports or records, or any other relevant information.

(b) Any such statement shall be submitted to OWCP with the notice of traumatic injury or death, or within 30 calendar days from the date notice of occupational disease or death is received from the claimant. If the employer does not submit a written explanation to support the disagreement, OWCP may accept the claimant's report of injury as established. The employer may not use a disagreement with an aspect of the claimant's report to delay forwarding the claim to OWCP or to compel or induce the claimant to change or withdraw the claim.

§ 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 § 10.118(a). However, the provisions of the Privacy Act apply to any endeavor by the employer to ascertain the facts of the case (see §§ 10.10 and 10.11).

(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.

§ 10.119

What action will OWCP take with respect to information submitted by the employer?

OWCP will consider all evidence submitted appropriately, and OWCP will inform the employee, the employee's representative, if any, and the employer of any action taken. Where an employer contests a claim within 30 days of the initial submittal and the claim is later approved, OWCP will notify the employer of the rationale for approving the claim.

§ 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.

§ 10.121

What happens if OWCP needs more evidence from the claimant?

If the claimant submits factual evidence, medical evidence, or both, but OWCP determines that this evidence is not sufficient to meet the burden of proof, OWCP will inform the claimant of the additional evidence needed. The claimant will be allowed at least 30 days to submit the evidence required. OWCP is not required to notify the claimant a second time if the evidence submitted in response to its first request is not sufficient to meet the burden of proof.

Decisions on Entitlement to Benefits

§ 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.

§ 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.)

§ 10.127

To whom is the decision sent?

A copy of the decision shall be mailed to the employee's last known address. If the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the representative. A copy of the decision will also be sent to the employer.

Subpart C—Continuation of Pay

§ 10.200

What is continuation of pay?

(a) For most employees who sustain a traumatic injury, the FECA provides that the employer must continue the employee's regular pay during any periods of resulting disability, up to a maximum of 45 calendar days. This is called continuation of pay, or COP. The employer, not OWCP, pays COP. Unlike wage loss benefits, COP is subject to taxes and all other payroll deductions that are made from regular income.

(b) The employer must continue the pay of an employee, except for Postal Service employees pursuant to 5 U.S.C. 8117 and as provided below in paragraph (c) of this section, who is eligible for COP, and may not require the employee to use his or her own sick or annual leave, unless the provisions of §§ 10.200(c), 10.220, or 10.222 apply. However, while continuing the employee's pay, the employer may controvert the employee's COP entitlement pending a final determination by OWCP. OWCP has the exclusive authority to determine questions of entitlement and all other issues relating to COP.

(c) Postal Service employees are not entitled to continuation of pay for the first 3 days of temporary disability and may use annual, sick or leave without pay during that period, except that if the disability exceeds 14 days or is followed by permanent disability, the Postal Service employee may have that leave restored.

(d) 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

§ 10.205

What conditions must be met to receive COP?

(a) To be eligible for COP, a person must:

(1) Have a “traumatic injury” as defined at § 10.5(ee) which is job-related and the cause of the disability, and/or the cause of lost time due to the need for medical examination and treatment;

(2) File Form CA-1 within 30 days of the date of the injury (but if that form

is not available, using another form would not alone preclude receipt); and

(3) Begin losing time from work due to the traumatic injury within 45 days of the injury.

(b) OWCP may find that the employee is not entitled to COP for other reasons consistent with the statute (see § 10.220).

§ 10.206

May an employee who uses leave after an injury later decide to use COP instead?

On Form CA-1, an employee may elect to use accumulated sick or annual leave, or leave advanced by the agency, instead of electing COP. The employee can change the election between leave and COP for prospective periods at any point while eligibility for COP remains. The employee may also change the election for past periods and request COP in lieu of leave already taken for the same period. In either situation, the following provisions apply:

(a) The request must be made to the employer within one year of the date the leave was used or the date of the written approval of the claim by OWCP (if written approval is issued), whichever is later.

(b) Where the employee is otherwise eligible, the agency shall restore leave taken in lieu of any of the 45 COP days. Where any of the 45 COP days remain unused, the agency shall continue pay prospectively.

(c) The use of leave may not be used to delay or extend the 45-day COP period or to otherwise affect the time limitation as provided by 5 U.S.C. 8117. Therefore, any leave used during the period of eligibility counts towards the 45-day maximum entitlement to COP.

§ 10.207

May an employee who returns to work, then stops work again due to the effects of the injury, receive COP?

If the employee recovers from disability and returns to work, then becomes disabled again and stops work, the employer shall pay any of the 45 days of entitlement to COP not used during the initial period of disability where:

(a) The employee completes Form CA-2a and elects to receive regular pay;

(b) OWCP did not deny the original claim for disability;

(c) The disability recurs and the employee stops work within 45 days of the time the employee first returned to work following the initial period of disability; and

(d) Pay has not been continued for the entire 45 days.

Responsibilities

§ 10.210

What are the employee's responsibilities in COP cases?

An employee who sustains a traumatic injury which he or she considers disabling, or someone authorized to act on his or her behalf, must take the following actions to ensure continuing eligibility for COP. The employee must:

(a) Complete and submit Form CA-1 to the employing agency as soon as possible, but no later than 30 days from the date the traumatic injury occurred.

(b) Ensure that medical evidence supporting disability resulting from the claimed traumatic injury, including a statement as to when the employee can return to his or her date of injury job, is provided to the employer within 10 calendar days after filing the claim for COP.

(c) Ensure that relevant medical evidence is submitted to OWCP, and cooperate with OWCP in developing the claim.

(d) Ensure that the treating physician specifies work limitations and provides them to the employer and/or representatives of OWCP.

(e) Provide to the treating physician a description of any specific alternative positions offered the employee, and ensure that the treating physician responds promptly to the employer and/or OWCP, with an opinion as to whether and how soon the employee could perform that or any other specific position.

§ 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 § 10.300. Failure to do so may mean that OWCP will not uphold any termination of COP by the employer.

(b) Advise the employee of the right to receive COP, and the need to elect among COP, annual or sick leave or leave without pay, for any period of disability.

(c) Inform the employee of any decision to controvert COP and/or terminate pay, and the basis for doing so.

(d) Complete Form CA-1 and transmit it, along with all other available pertinent information, (including the basis for any controversion), to OWCP within 10 working days after receiving the completed form from the employee.

Calculation of COP

§ 10.215

How does OWCP compute the number of days of COP used?

COP is payable for a maximum of 45 calendar days, and every day used is counted toward this maximum. The following rules apply:

(a) Time lost on the day or shift of the injury does not count toward COP. (Instead, the agency must keep the employee in a pay status for that period);

(b) The first COP day is the first day disability begins following the date of injury (providing it is within the 45 days following the date of injury), except where the injury occurs before the beginning of the work day or shift, in which case the date of injury is charged to COP;

(c) Any part of a day or shift (except for the day of the injury) counts as a full day toward the 45 calendar day total;

(d) Regular days off are included if COP has been used on the regular work days immediately preceding or following the regular day(s) off, and medical evidence supports disability; and

(e) Leave used during a period when COP is otherwise payable is counted toward the 45-day COP maximum as if the employee had been in a COP status.

(f) For employees with part-time or intermittent schedules, all calendar days on which medical evidence indicates disability are counted as COP days, regardless of whether the employee was or would have been scheduled to work on those days. The rate at which COP is paid for these employees is calculated according to § 10.216(b).

§ 10.216

How is the pay rate for COP calculated?

The employer shall calculate COP using the period of time and the weekly pay rate.

(a) The pay rate for COP purposes is equal to the employee's regular “weekly” pay (the average of the weekly pay over the preceding 52 weeks).

(1) The pay rate excludes overtime pay, but includes other applicable extra pay except to the extent prohibited by law.

(2) Changes in pay or salary (for example, promotion, demotion, within-grade increases, termination of a temporary detail, etc.) which would have otherwise occurred during the 45-day period are to be reflected in the weekly pay determination.

(b) The weekly pay for COP purposes is determined according to the following formulas:

(1) For full or part-time workers (permanent or temporary) who work the

same number of hours each week of the year (or of the appointment), the weekly pay rate is the hourly pay rate (A) in effect on the date of injury multiplied by (×) the number of hours worked each week (B): A × B = Weekly Pay Rate.

(2) For part-time workers (permanent or temporary) who do not work the same number of hours each week, but who do work each week of the year (or period of appointment), the weekly pay rate is an average of the weekly earnings, established by dividing (÷) the total earnings (excluding overtime) from the year immediately preceding the injury (A) by the number of weeks (or partial weeks) worked in that year (B): A ÷ B = Weekly Pay Rate.

(3) For intermittent and seasonal workers, whether permanent or temporary, who do not work either the same number of hours or every week of the year (or period of appointment), the weekly pay rate is the average weekly earnings established by dividing (÷) the total earnings during the full 12-month period immediately preceding the date of injury (excluding overtime) (A), by the number of weeks (or partial weeks) worked during that year (B) (that is, A ÷ B); or 150 times the average daily wage earned in the employment during the days employed within the full year immediately preceding the date of injury divided by 52 weeks, whichever is greater.

§ 10.217

Is COP charged if the employee continues to work, but in a different job that pays less?

If the employee cannot perform the duties of his or her regular position, but instead works in another job with different duties with no loss in pay, then COP is not chargeable. COP must be paid and the days counted against the 45 days authorized by law whenever an actual reduction of pay results from the injury, including a reduction of pay for the employee's normal administrative workweek that results from a change or diminution in his or her duties following an injury. However, this does not include a reduction of pay that is due solely to an employer being prohibited by law from paying extra pay to an employee for work he or she does not actually perform.

Controversion and Termination of COP

§ 10.220

When is an employer not required to pay COP?

An employer shall continue the regular pay of an eligible employee without a break in time for up to 45 calendar days, except when, and only when:

(a) The disability was not caused by a traumatic injury;

(b) The employee is not a citizen of the United States or Canada;

(c) No written claim was filed within 30 days from the date of injury;

(d) The injury was not reported until after employment has been terminated;

(e) The injury occurred off the employing agency's premises and was otherwise not within the performance of official duties;

(f) The injury was caused by the employee's willful misconduct, intent to injure or kill himself or herself or another person, or was proximately caused by intoxication by alcohol or illegal drugs; or

(g) Work did not stop until more than 45 days following the injury.

§ 10.221

How is a claim for COP controverted?

When the employer stops an employee's pay for one of the reasons cited in § 10.220, the employer must controvert the claim for COP on Form CA-1, explaining in detail the basis for the refusal. The final determination on entitlement to COP always rests with OWCP.

§ 10.222

When may an employer terminate COP which has already begun?

(a) Where the employer has continued the pay of the employee, it may be stopped only when at least one of the following circumstances is present:

(1) Medical evidence which on its face supports disability due to a work-related injury is not received within 10 calendar days after the claim is submitted (unless the employer's own investigation shows disability to exist). Where the medical evidence is later provided, however, COP shall be reinstated retroactive to the date of termination;

(2) The medical evidence from the treating physician shows that the employee is not disabled from his or her regular position;

(3) Medical evidence from the treating physician shows that the employee is not totally disabled, and the employee refuses a written offer of a suitable alternative position which is approved by the attending physician. If OWCP later determines that the position was not suitable, OWCP will direct the employer to grant the employee COP retroactive to the termination date.

(4) The employee returns to work with no loss of pay;

(5) The employee's period of employment expires or employment is otherwise terminated (as established prior to the date of injury);

(6) OWCP directs the employer to stop COP; and/or

(7) COP has been paid for 45 calendar days.

(b) An employer may not interrupt or stop COP to which the employee is otherwise entitled because of a disciplinary action, unless a preliminary notice was issued to the employee before the date of injury and the action becomes final or otherwise takes effect during the COP period.

(c) An employer cannot otherwise stop COP unless it does so for one of the reasons found in this section or § 10.220. Where an employer stops COP, it must file a controversion with OWCP, setting forth the basis on which it terminated COP, no later than the effective date of the termination.

§ 10.223

Are there other circumstances under which OWCP will not authorize payment of COP?

When OWCP finds that an employee or his or her representative refuses or obstructs a medical examination required by OWCP, the right to COP is suspended until the refusal or obstruction ceases. COP already paid or payable for the period of suspension is forfeited. If already paid, the COP may be charged to annual or sick leave or considered an overpayment of pay consistent with 5 U.S.C. 5584.

§ 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

§ 10.300

What are the basic rules for authorizing emergency medical care?

(a) When an employee sustains a work-related traumatic injury that requires medical examination, medical treatment, or both, the employer shall authorize such examination and/or treatment by issuing a Form CA-16. This form may be used for occupational disease or illness only if the employer has obtained prior permission from OWCP.

(b) The employer shall issue Form CA-16 within four hours of the claimed injury. If the employer gives verbal authorization for such care, he or she should issue a Form CA-16 within 48 hours. The employer is not required to issue a Form CA-16 more than one week after the occurrence of the claimed injury. The employer may not authorize

examination or medical or other treatment in any case that OWCP has disallowed.

(c) Form CA-16 must contain the full name and address of the qualified physician or qualified medical facility authorized to provide service. The authorizing official must sign and date the form and must state his or her title. Form CA-16 authorizes treatment for 60 days from the date of injury, unless OWCP terminates the authorization sooner.

(d) The employer should advise the employee of the right to his or her initial choice of physician. The employer shall allow the employee to select a qualified physician, after advising him or her of those physicians excluded under subpart I of this part. The physician may be in private practice, including a health maintenance organization (HMO), or employed by a Federal agency such as the Department of the Army, Navy, Air Force, or Veterans Affairs. Any qualified physician may provide initial treatment of a work-related injury in an emergency. See also § 10.825(b).

§ 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.

§ 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.

§ 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 § 10.313).

(b) Employers may be required under other statutes or regulations to provide their employees with medical testing and/or other services in situations described in paragraph (a) of this section. For example, regulations issued by the Occupational Safety and Health Administration at 29 CFR chapter XVII require employers to provide their employees with medical consultations and/or examinations when they either exhibit symptoms consistent with exposure to a workplace hazard, or when an identifiable event such as a spill, leak or explosion occurs and results in the likelihood of exposure to a workplace hazard. In addition, 5 U.S.C. 7901 authorizes employers to establish health programs whose staff can perform tests for workplace hazards, counsel employees for exposure or feared exposure to such hazards, and provide health care screening and other associated services.

§ 10.304

Are there any exceptions to these procedures for obtaining medical care?

In cases involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart.

Medical Treatment and Related Issues

§ 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. Billing for these services is described in subpart I of this part. 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 through the automated authorization process described in § 10.800. OWCP may also utilize the services of a field nurse to facilitate and coordinate medical care for the employee. OWCP may contract with a specific provider or providers to supply such services or appliances, including durable medical equipment and prescribed medications.

(b) Any qualified physician or qualified hospital may provide such services, appliances and supplies. Non-physician providers such as physicians' assistants, nurse practitioners and physical therapists may also provide authorized services for injured employees to the extent allowed by applicable Federal and State law.

(c) Where OWCP has not contracted for the provision of appliances or supplies, only a supplier of durable medical equipment, which is a provider that is registered in Medicare's Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Process, may furnish such appliances and supplies. OWCP may apply a test of cost-effectiveness to appliances and supplies, may offset the cost of prior rental payments against a future purchase price, and may provide refurbished appliances where appropriate.

§ 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, and as prescribed by, a qualified physician.

§ 10.312

What are the special rules for the services of clinical psychologists?

A clinical psychologist may serve as a physician only within the scope of his or her practice as defined by State law. Therefore, a clinical psychologist may not serve as a physician for conditions that include a physical component unless the applicable State law allows clinical psychologists to treat physical conditions. A clinical psychologist may also perform testing, evaluation and other services under the direction of a qualified physician.

§ 10.313

Will OWCP pay for preventive treatment?

The FECA does not authorize payment f

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