# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-18965

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 13, 2010
- **Citation:** 75 FR 49596

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-18965. Public record. Not legal advice.