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

DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1, 10 and 25

RIN 1240-AA03

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

AGENCY:

Office of Workers' Compensation Programs, Department of Labor.

ACTION:

Final Rule.

SUMMARY:

On August 13, 2010, the Department of Labor (DOL) proposed revisions to the regulations governing the administration of the Federal Employees' Compensation Act (FECA). The FECA provides benefits to all civilian Federal employees and certain other groups of employees and individuals who are injured or killed while performing their jobs. At that time, DOL also proposed revisions to the regulations establishing the authority of the Office of Workers' Compensation Programs (OWCP) which administers the FECA.

The proposed changes were summarized in that publication. 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:

Effective Date:

This final rule is effective on August 29, 2011.

FOR FURTHER INFORMATION CONTACT:

Douglas Fitzgerald, Director, Division of Federal Employees' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, Room S3229, 200 Constitution Avenue, NW., Washington, DC 20210,

Telephone:

202-693-0040 (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:

Proposed regulations were published in the

Federal Register

on August 13, 2010 (75 FR 49596). They allowed a 60-day period for comment, during which the DOL received timely comments from 251 parties: one comment was submitted by a Federal employing agency; two comments were received from labor organizations representing Federal employees; one comment was received from a medical professional association; 173 comments were received from private individuals; and 74 comments were received from attorneys. Also, 44 untimely comments were received from private individuals and attorneys; the points made by these commenters echoed those made in comments that were timely submitted. Almost all of the comments addressed the reinsertion of the FECA's explicit bar on receipt of contingency fees. Furthermore, a number of the comments addressed scheduling of hearings before the Branch of Hearings and Review and a proposed change in how a request for reconsideration is determined to be timely. A smaller number of comments addressed changes in language regarding suitable employment and loss of wage earning capacity determinations. Finally, individual comments were received addressing a small number of issues, including changes to procedures involving Peace Corps volunteers, questions regarding verbiage, and a number of issues not raised by the proposed changes to the FECA regulations. All of these comments are addressed below.

Two minor changes have been made to the notice of proposed rulemaking that did not result from any comments. The first change clarifies language in § 10.104 to promote ease of reading. The second change was to §§ 10.619, 10.818 and 10.819, which added “or equivalent service from a commercial carrier” in situations where OWCP is to use certified mail, return receipt requested when mailing notices or decisions. This change will provide greater flexibility in such mailings while providing for proof of receipt.

When publishing a final rule following a comment period, it is customary to publish only the changes that have been made to the rule; however, in order to be more user-friendly, OWCP is publishing the entire rule, including the parts that have not been changed. By doing so, only one document containing all of the regulations and commentary needs to be consulted rather than multiple documents.

I. Comments on the Notice of Proposed Rulemaking

The section numbers used in the headings of the following analysis are those that were used in the notice of proposed rulemaking. Unless otherwise stated, the section numbers in the text of the analysis refer to the numbering used for the final regulations. No comments were received with respect to parts 1 and 25.

Section 10.16

One attorney suggested that the addition of language to subsection (b) of this section which discussed actions under the False Claims Act indicated that OWCP was changing this section to allow other agencies to institute actions under the Program Fraud Civil Remedies Act. The addition of this language was only intended to notify employees that suits may be maintained under the False Claims Act. As such, the comment is well taken in that it indicates that placing this language in subsection (b) reduced the clarity of the regulation. Accordingly, the language has been moved to subsection (a).

Section 10.104

Two labor organizations recommended the abbreviation “

i.e.”

be changed to “

e.g.”

because surgery is only one of multiple reasons that could support payment of wage-loss compensation for a limited period of disability in the presence of a loss-of-wage-earning-capacity determination. While OWCP does not think that such modification is required, the language has been changed to “such as” in an attempt to address the concerns expressed by the commenters and to add clarity through the use of plain language.

Section 10.310

One medical provider noted that Round 1 of Medicare's Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Competitive Bidding process covers only a limited number of metropolitan areas and closed on November 4, 2009. Registration for Round 2 has yet to open

with no date even tentatively scheduled. As a result, many providers currently supplying durable medical equipment services for OWCP would be precluded from participation.

This provision was added to afford OWCP with a measure of reliability in durable medical equipment suppliers while avoiding the use of scarce program resources to police all such providers. The comment is well taken as there are two processes relating to DMEPOS under Medicare. Relevant to this regulation is Medicare's DMEPOS Accreditation Process. This process was established as a result of the Medicare Modernization Act to implement quality standards for suppliers of, among other things, durable medical equipment. The accreditation process is currently open and providers are still being enrolled. This section has therefore been modified to require registration under Medicare's DMEPOS Accreditation Process rather than Medicare's Competitive Bidding Program. This should address the concerns of the commenter.

Section 10.321

One attorney suggested that the language should be changed to require OWCP to provide notice to the claimant of the right to object to the referee selection at the time the referee notice is sent and that OWCP bears the burden of showing that it complied with the strict rotational system. The only proposed change to the existing rule was to add the “impartial” nomenclature that the Employees' Compensation Appeals Board (ECAB) uses in its appeal decisions for the third tie-breaking (referee) physician. This section explains under what circumstances OWCP will appoint a third physician to make an examination. There is no requirement in the statute, ECAB case law or OWCP procedure for such notices or rotational requirements or for placing such strict obligations on OWCP by regulation. In addition, OWCP needs to retain some flexibility as to how it selects its impartial specialists, as some esoteric specialties may require more flexibility in scheduling. Consequently, the language in this section has not been modified.

Section 10.401

Two labor organizations commented that the proposed language does not clearly establish that USPS employees who use leave during the first three days of temporary disability should have their leave reinstated if the injury causes permanent disability or if the pay loss continues for more than 14 calendar days. This explanation is specifically provided in § 10.200(c). For clarity, a reference to § 10.200(c) and to 5 U.S.C. 8117(b) has been added.

Section 10.421

One agency commented that this section omitted a discussion of U.S. Department of Veterans Affairs benefits. The proposed language contains nothing novel and no specific reference to VA benefits appeared in either the 1988 or 1999 final rules. Furthermore, the program's procedures have long contained instructions on determining when VA payments constitute a prohibited dual benefit under the statute, and OWCP is not aware of any problems which have arisen with respect to these instructions. Therefore, the program does not believe that it is necessary to address it by regulation.

Section 10.500

Eight attorneys noted that the additional sentence added to paragraph (a) of this section ignores and appears to undercut a very necessary procedure that has been set up to protect the employee's vested interest in continuation of wage-loss benefits absent being afforded due process rights prior to any reduction or elimination of benefits.

Two labor organizations argued that the change to “appropriate work” in paragraph (b) of this section recasts the discussion into the context of loss of wage earning capacity determinations and that the term “appropriate” lacks a meaningful statutory or regulatory history and questioned the cross reference in § 10.515.

OWCP first notes that § 10.500, as evidenced by the question proposed in the title, is meant to provide the very basic rules on receipt of benefits and rules regarding return to work and its effect on compensation. The changes made to this section were to clarify these situations and to provide information to claimants regarding their obligation to perform light duty when the evidence establishes that work is available within the employee's restrictions. These comments, however, indicate an apparent misunderstanding of the basic intent of § 10.500. Accordingly, the section has been clarified by splitting up paragraphs (a) and (b) in the proposed rule to paragraphs (a)-(d) in this section. While these sections do not provide any new information or communicate a change in interpretation of current law, OWCP believes that the purpose and intent of the rule will be demonstrated more clearly. Furthermore, in any situation where benefits are reduced or denied under this section, OWCP will issue a decision that contains findings of fact and a statement of reasons. Where appropriate, such as in cases of ongoing continuous entitlement, OWCP will also provide the claimant notice of its proposed action as well as an opportunity to respond prior to issuing a decision based on this regulation. All such decisions will be accompanied by an explanation of the claimant's right to further administrative review including appeal to ECAB. These actions will address the due process concerns expressed by these organizations. Finally, the cross-reference that was questioned by the labor organizations was removed from § 10.515 as that was no longer needed.

Section 10.509

The proposed new § 10.509 was modified by splitting this 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. This section elicited comment from eight attorneys who disputed the additional phrase requiring the employing agency to state, in writing, that no other employment is available as being simply conclusory in nature. However, this clarifying phrase does not impact the section's basic premise that employees who have a wage-earning capacity determination in place do not sustain a compensable recurrence of disability when they lose their light duty positions pursuant to reductions-in-force and merely codifies existing procedures. As such, no change has been made to this section.

Another commenter took issue with the use of “other forms of downsizing”, arguing that this allows the agency to evade responsibilities under any collective bargaining agreement and established RIF law. As this is a personnel matter outside the scope of these FECA regulations, no change is necessary to the regulations as a result of this comment.

Section 10.510

This section elicited comments from sixty-nine individuals, all of which were form letters, as well as comments from nine attorneys and two labor organizations. All comments expressed concern that the change in language would undercut the job suitability determination process. The purpose of the section, as noted in the preamble to the proposed rule, was to clarify when a light duty job may form the basis of a loss of wage-earning capacity determination, and does not involve determinations regarding job suitability under 5 U.S.C. 8106(c). One of the

fundamental bases for a loss of wage-earning capacity determination is that the position must fairly and reasonably represent an employee's ability to earn wages. As that basic factor was not explicitly expressed in this section, this language has been added.

Section 10.511

Two labor organizations recommended the abbreviation “

i.e.”

be changed to “

e.g.”

because surgery is only one of multiple reasons that could support payment of wage-loss compensation for a limited period of disability in the presence of a loss-of-wage-earning-capacity determination. While no modification is strictly required, using the term “such as” will address the concerns expressed by the commenters and add clarity through the use of plain language.

Section 10.519

Two labor organizations noted that, although the reference to OWCP nurses was removed from § 10.518, it was not removed from this section. The reference to registered nurses was deleted from § 10.518 as ECAB found that nurse services were not to be considered vocational rehabilitation for the purposes of imposing sanctions pursuant to 5 U.S.C. 8113 (b). While OWCP will not apply such sanctions to non-cooperation with OWCP registered nurses, the reference remains in § 10.519(a) to allow for flexibility in coordinating the services of both registered nurses and vocational rehabilitation counselors in OWCP's return to work efforts for injured workers.

Section 10.521

The proposed rule added this section to explain the ramifications of electing to receive retirement benefits instead of FECA benefits. While not averse to referencing existing procedure in the regulatory language, two labor organizations objected to the addition of the phrase “where OWCP is attempting to otherwise place that employee in a suitable job[.]” The commenters argued that such language was potentially so broad as to cover any effort, including those inconsistent with law, regulation or procedure, and such a regulation would be punitive toward injured workers electing retirement benefits in order to receive schedule award payments. OWCP does not believe a change in this section is warranted, as the requirements for determining a loss of wage earning capacity are well established. A loss of wage earning capacity determination does not constitute a sanction; this section will have no impact on the concurrent receipt of OPM retirement benefits and a schedule award that is plainly permissible under the statute.

Section 10.607

Ninety commenters objected to the change to § 10.607, which modified the deadline for seeking reconsideration with OWCP on a denial of benefits from the requirement that the request “be sent within one year” to being “received” by OWCP within one year and requiring the request itself to be dated. Most of these comments were form letters. One commenter questioned whether the date would be the date received by OWCP or the date the letter is scanned into OWCP's electronic claim file system. Two commenters noted that this would create separate rules on deadlines for filing a request for reconsideration and a request for hearing with OWCP's Branch of Hearings and Review, in that the current rule in each instance bases the deadlines on the postmark on the envelope. The form letter comments suggested that this will increase the cost of filing reconsiderations by requiring claimants to send such requests by certified mail or facsimile in order to clearly know when the request has been received.

OWCP notes that the prior regulation, which allowed for the date a request for reconsideration was sent to be documented by postmark, predated the current electronic file system (iFECs). Due to the large volume of mail that is received and scanned into this file system, it is not feasible or efficient to keep envelopes for all mail scanned prior to determining whether such mail is a request for reconsideration, making it impossible to determine the date such a request was sent to OWCP. This anomaly led to situations where dated requests for reconsideration were received well past the one year deadline, but were required to be treated as timely under the prior regulations. Such a problem is not inherent in requests for oral hearings, as hearing requests are mailed directly to the Branch of Hearings and Review. Therefore no change was necessary to that procedure. OWCP believes that this difference in procedure will be clearly explained in the appeal rights notice to avoid confusion.

Furthermore, by 2012, OWCP will implement a free, Web-based system (E-COMP) that will allow claimants and representatives to directly upload documents to the electronic case file, minimizing both the cost and documentation questions noted by the commenters. Such electronic submissions should come at no cost to either the claimant or a representative and will provide instant acknowledgment as to when a document was received by OWCP.

Finally, OWCP notes that the one year period for requesting reconsideration is extremely generous compared to other benefit appeals systems. As noted in the preamble to the notice of proposed rulemaking, rather than cutting back the time to file such a request (to either 180 days, as with the ECAB, or 65 days, as with the Social Security Administration), OWCP simply chose to provide a solution that would allow OWCP to more easily document when the request was timely. The regulation provides more than ample time to both claimants and representatives to gather new evidence and submit a request for reconsideration. Accordingly, no change has been made to this section as a result of these comments.

Sections 10.616, 10.617 & 10.622

The notice of proposed rule making drew six comments, all from attorneys, in regards to §§ 10.616, 10.617 and 10.622. Although these sections address different issues, the comments all involved requests for additional flexibility in the scheduling of an oral hearing. One commenter specifically requested that the regulation be changed to require a hearing representative to consult with a claimant or representative prior to scheduling any hearing to arrange a mutually convenient time and place to hold the hearing. The remaining commenters simply asked that there be some coordination with the representative to better accommodate hearing calendars.

Due to the volume of hearing requests and limited resources available to conduct those hearings, OWCP is not able to grant the large degree of consultation and latitude in the scheduling or postponements of hearings requested by the commenters. However, the increased use of teleconferences and other technology in hearings affords OWCP some flexibility in scheduling that did not exist previously. Accordingly, OWCP has redrafted § 10.622 to provide greater flexibility while still maintaining OWCP's discretion in how and when these hearings are conducted. Specifically, OWCP added language allowing rescheduling within a monthly docket where a claimant or the representative has a prior unavoidable scheduling conflict and extended the previously existing language in paragraph (d) to include representatives as well.

Section 10.626

One labor organization stated in reference to § 10.626 that OWCP should consider adding language that states that OWCP will follow decisions of the Employees' Compensations Appeals Board based on the unions reading of a FECA circular from 1990. OWCP notes however that this section deals solely with the jurisdiction over a claim while that claim is appealed to ECAB. OWCP notes that part 0 of the

Federal (FECA) Procedure Manual

clearly states that the Employees' Compensation Appeals Board is an independent body that has jurisdiction to determine appeals from denials of FECA benefits.

Federal (FECA) Procedure Manual,

part 0-0100-3.

Section 10.700

An attorney commented that this section should include a mandatory requirement that copies of all documents in the case file, including e-mails, be automatically mailed to the claimant as well as the claimant's representative. OWCP notes that such a requirement is unnecessary, as the Privacy Act allows a claimant to request one free copy of all such documents and to sign a waiver allowing any representative to view those documents or receive a copy upon request. Furthermore, while representatives are frequently copied on correspondence to claimants, certain correspondence (such as the CA-1032) remains the direct responsibility of the claimant to complete and submit. For this reason, and based on program experience, OWCP will not impose the regulatory requirement suggested by this commenter and the regulation remains unchanged.

Sections 10.702 & 10.703

Two hundred forty-three of the comments, most of which were form letters, disagreed with the specific prohibition on contingency fees noted in these sections. One commenter strongly supported the ban on contingency fees as she believed that current fee application requirements compelled accountability on the part of the representative. Language specifically banning contingency fees was omitted during the last regulatory update, as the requirements for the fee application were believed to make the additional language redundant. Notwithstanding the regulation's explicit reference to hourly rates, the removal of this language left some with the impression that contingency fees were permissible and that the ban on contingency arrangements had been removed. ECAB precedent has stated that FECA does not allow for the payment of contingency fees, and the current regulations clearly contemplate the use of an hourly rate in determining representatives' fees. Furthermore, ECAB, in its recently published final rule, noted that no contract for a stipulated fee or on a contingent basis will be approved by ECAB.

Federal Register

cite. As 5 U.S.C. 8127 applies to representative fees before both ECAB and OWCP, OWCP will continue to conform its position on contingency fees with that of ECAB's. Consequently, no change has been made to this section as a result of these comments.

Section 10.730

This section was amended to restore the statutory language applicable to coverage of claims involving Peace Corps volunteers. The use of “deemed proximately caused” mirrors the language in 5 U.S.C. 8142(c)(3). One attorney noted that the language of this section reverses the statutory burden of proof for Peace Corps Volunteers by adding additional requirements of proof in paragraph (b) and (c) to those that are required in 5 U.S.C. 8142(c)(3). The language to which the attorney took exception was not the amended language, but the general statutory requirement that a volunteer must sustain either an occupational disease or illness or a traumatic injury in order for FECA coverage to apply. As such, no change has been made to this section as a result of these comments.

Section 10.812

One attorney commented that OWCP seldom sends a notice explaining appeal rights to the medical provider of reduced or denied fees and does not send notice to the claimant of a reduction or denial of a medical fee. This occasionally results in a claimant being sued years after the bill was denied or reduced.

The existing rule was unchanged in the notice of proposed rulemaking. Notification of payment, denial of payment or fee reduction of a service is supplied in writing to the provider requesting payment. A claimant may review the bills submitted in his/her case and information regarding the amount billed, paid and the reason for any denial is readily available on-line. Although § 10.813 of this part clearly states that claimants may not be billed for the difference when a fee is reduced, OWCP agrees that claimants may not realize that they are not responsible for medical charges exceeding the maximum allowed in the OWCP fee schedule. While no change has been made to this section, language regarding this concern has been added to the Web site and included in the acceptance letter sent to a claimant.

II. Administrative Requirements for the Proposed Rulemaking

Executive Orders 12866 and 13563

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866.

This rule 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. OWCP believes, however, that as this rule merely updates existing regulations, this rule will not have a significant economic impact on the economy, or any person or organization subject to the proposed changes. OWCP 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 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. OWCP 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

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

Federal Regulations and Policies on Families

OWCP has reviewed this 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. This rule was 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

OWCP certifies that this rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. This rule was 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

OWCP has reviewed this 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, OWCP has not prepared a budgetary impact statement.

Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

OWCP has reviewed this rule in accordance with Executive Order 13175, 65 FR 67249 (Nov. 9, 2000), and has determined that it does not have “Tribal implications.” The 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

OWCP has reviewed this 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

OWCP has reviewed this rule 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. OWCP invited comments on how to make the proposed rule easier to understand, and has incorporated plain language into the rule.

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 58834) 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' COMPENSATOIN 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 the regulations in this subchapter?

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 or representative 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

How 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 the regulations in this subchapter?

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 the regulations in this subchapter.

(a)

Benefits

or

Compensation

in the regulations in this subchapter 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 18 U.S.C. 287, 1001, 1920, and 1922. 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. Enforcement of such provisions that may apply to claims under the FECA is 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.

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

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

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

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

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

§ 10.105

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

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

www.dol.gov

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

(b) For deaths that occur on or after September 7, 1974, a notice of death must be filed within three years of the

death. The form contains the necessary words of claim. The requirements for timely filing are described in § 10.100(b)(1) through (3).

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

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

(e) A survivor must be alive to receive any payment; there is no vested right to such payment. A report as described in § 10.414 of this part must be filed once each year to support continuing payments of compensation.

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

§ 10.110

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

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

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

(1) A medical charge against OWCP;

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

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

(4) Future disability;

(5) Permanent impairment; or

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

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

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

§ 10.111

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

(a) Except for employees covered by paragraph (d) of this section, when an employee is disabled by a work-related injury and loses pay for more than three calendar days, or has a permanent impairment or serious disfigurement as described in 5 U.S.C. 8107, the employer shall furnish the employee with Form CA-7 for the purpose of claiming compensation.

(b) If the employee is receiving continuation of pay (COP), the employer should give Form CA-7 to the employee by the 30th day of the COP period and submit the form to OWCP by the 40th day of the COP period. If the employee has not returned the form to the employer by the 40th day of the COP period, the employer should ask him or her to submit it as soon as possible.

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

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

§ 10.112

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

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

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

§ 10.113

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

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

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

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

Evidence and Burden of Proof

§ 10.115

What evidence is needed to establish a claim?

Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence required. OWCP may send a request for additional evidence to the claimant and to his or her representative, if any; however the burden of proof still remains with the claimant. Evidence should be submitted in writing. The evidence submitted must be reliable, probative and substantial. Each claim for compensation must meet five requirements before OWCP can accept it. These requirements, which the employee must establish to meet his or her burden of proof, are as follows:

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

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

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

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

(e) The medical condition for which compensation or medical benefits is claimed is causally related to the

claimed injury, disease or death. Neither the fact that the condition manifests itself during a period of Federal employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship.

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

§ 10.116

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

(a) The employee must submit the specific detailed information described on Form CA-2 and should submit any checklist (Form CA-35, A-H) provided by the employer. OWCP has developed these checklists to address particular occupational diseases. The medical report should also include the information specified on the checklist for the particular disease claimed.

(b) The employer should submit the specific detailed information described on Form CA-2 and on any checklist pertaining to the claimed disease.

§ 10.117

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

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

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

§ 10.118

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

(a) The employer is responsible for submitting to OWCP all relevant and probative factual and medical evidence in its possession, or which it may acquire through investigation or other means. Such evidence may be submitted at any time.

(b) The employer may ascertain the events surrounding an injury and the extent of disability where it appears that an employee who alleges total disability may be performing other work, or may be engaging in activities which would indicate less than total disability. This authority is in addition to that given in § 10.118(a). However, the provisions of the Privacy Act apply to any endeavor by the employer to ascertain the facts of the case (see §§ 10.10 and 10.11).

(c) The employer does not have the right, except as provided in subpart C of this part, to actively participate in the claims adjudication process.

§ 10.119

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

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

§ 10.120

May a claimant submit additional evidence?

A claimant or a person acting on his or her behalf may submit to OWCP at any time any other evidence relevant to the claim.

§ 10.121

What happens if OWCP needs more evidence from the claimant?

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

Decisions on Entitlement to Benefits

§ 10.125

How does OWCP determine entitlement to benefits?

(a) In reaching any decision with respect to FECA coverage or entitlement, OWCP considers the claim presented by the claimant, the report by the employer, and the results of such investigation as OWCP may deem necessary.

(b) OWCP claims staff apply the law, the regulations, and its procedures to the facts as reported or obtained upon investigation. They also apply decisions of the Employees' Compensation Appeals Board and administrative decisions of OWCP as set forth in FECA Program Memoranda.

§ 10.126

What does the decision contain?

The decision shall contain findings of fact and a statement of reasons. It is accompanied by information about the claimant's appeal rights, which may include the right to a hearing, a reconsideration, and/or a review by the Employees' Compensation Appeals Board. (See subpart G of this part.)

§ 10.127

To whom is the decision sent?

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

Subpart C—Continuation of Pay

§ 10.200

What is continuation of pay?

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

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

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

Service employee may have that leave restored.

(d) The FECA excludes certain persons from eligibility for COP. COP cannot be authorized for members of these excluded groups, which include but are not limited to: persons rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay; volunteers (for instance, in the Civil Air Patrol and Peace Corps); Job Corps and Youth Conservation Corps enrollees; individuals in work- study programs, and grand or petit jurors (unless otherwise Federal employees).

Eligibility for COP

§ 10.205

What conditions must be met to receive COP?

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

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

(2) File Form CA-1 within 30 days of the date of the injury (but if that form is not available, using another form would not alone preclude receipt); and

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

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

§ 10.206

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

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

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

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

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

§ 10.207

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

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

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

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

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

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

Responsibilities

§ 10.210

What are the employee's responsibilities in COP cases?

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

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

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

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

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

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

§ 10.211

What are the employer's responsibilities in COP cases?

Once the employer learns of a traumatic injury sustained by an employee, it shall:

(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in accordance with § 10.300. Failure to do so may mean that OWCP will not uphold any termination of COP by the employer.

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

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

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

Calculation of COP

§ 10.215

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

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

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

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

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

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

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

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

§ 10.216

How is the pay rate for COP calculated?

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

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

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

(2) Changes in pay or salary (for example, promotion, demotion, within-grade increases, termination of a temporary detail,

etc.

) which would have otherwise occurred during the 45-day period are to be reflected in the weekly pay determination.

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

(1) For full or part-time workers (permanent or temporary) who work the same number of hours each week of the year (or of the appointment), the weekly pay rate is the hourly pay rate (A) in effect on the date of injury multiplied by (×) the number of hours worked each week (B): A × B = Weekly Pay Rate.

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

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

§ 10.217

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

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

Controversion and Termination of COP

§ 10.220

When is an employer not required to pay COP?

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

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

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

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

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

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

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

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

§ 10.221

How is a claim for COP controverted?

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

§ 10.222

When may an employer terminate COP which has already begun?

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

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

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

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

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

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

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

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

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

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

§ 10.223

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

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

§ 10.224

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

Where OWCP finds that the employee is not entitled to COP after it has been paid, the employee may chose to have the time charged to annual or sick leave, or considered an overpayment of pay under 5 U.S.C. 5584. The employer must correct any deficiencies in COP as directed by OWCP.

Subpart D—Medical and Related Benefits

Emergency Medical Care

§ 10.300

What are the basic rules for authorizing emergency medical care?

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

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

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

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

§ 10.301

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

The physician designated on Form CA-16 may refer the employee for further examination, testing, or medical care. OWCP will pay this physician or facility's bill on the authority of Form CA-16. The employer should not issue a second Form CA-16.

§ 10.302

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

If the employer doubts that the injury occurred, or that it is work-related, he or she should authorize medical care by completing Form CA-16 and checking block 6B of the form. If the medical and factual evidence sent to OWCP shows that the condition treated is not work-related, OWCP will notify the employee, the employer, and the physician or hospital that OWCP will not authorize payment for any further treatment.

§ 10.303

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

(a) Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a work-related injury entitling an employee to medical treatment under the FECA. The employer therefore should not use a Form CA-16 to authorize medical testing for an employee who has merely been exposed to a workplace hazard, unless the employee has sustained an identifiable injury or medical condition as a result of that exposure. OWCP will authorize preventive treatment only under certain well-defined circumstances (see § 10.313).

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

§ 10.304

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

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

Medical Treatment and Related Issues

§ 10.310

What are the basic rules for obtaining medical care?

(a) The employee is entitled to receive all medical services, appliances or supplies which a qualified physician prescribes or recommends and which OWCP considers necessary to treat the work-related injury. Billing for these services is described in subpart I of this part. The employee need not be disabled to receive such treatment. If there is any doubt as to whether a specific service, appliance or supply is necessary to treat the work-related injury, the employee should consult OWCP prior to obtaining it through the automated authorization process described in § 10.800. OWCP may also utilize the services of a field nurse to facilitate and coordinate medical care for the employee. OWCP may contract with a specific provider or providers to supply such services or appliances, including durable medical equipment and prescribed medications.

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

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

§ 10.311

What are the special rules for the services of chiropractors?

(a) The services of chiropractors that may be reimbursed are limited by the FECA to treatment to correct a spinal subluxation. The costs of physical and related laboratory tests performed by or required by a chiropractor to diagnose such a subluxation are also payable.

(b) In accordance with 5 U.S.C. 8101(3), a diagnosis of spinal “subluxation as demonstrated by X-ray to exist” must appear in the chiropractor's report before OWCP can consider payment of a chiropractor's bill.

(c) A chiropractor may interpret his or her x-rays to the same extent as any other physician. To be given any weight,

the medical report must state that x-rays support the finding of spinal subluxation. OWCP will not necessarily require submittal of the x-ray, or a report of the x-ray, but the report must be available for submittal on request.

(d) A chiropractor may also provide services in the nature of physical therapy under the direction of, and as prescribed by, a qualified physician.

§ 10.312

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

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

§ 10.313

Will OWCP pay for preventive treatment?

The FECA does not authorize payment for preventive measures such as vaccines and inoculations, and in general, preventive treatment may be a responsibility of the employing agency under the provisions of 5 U.S.C. 7901 (see § 10.303). However, OWCP can authorize treatment for the following conditions, even though such treatment is designed, in part, to prevent further injury:

(a) Complications of preventive measures which are provided or sponsored by the agency, such as an adverse reaction to prophylactic immunization.

(b) Actual or probable exposure to a known contaminant due to an injury, thereby requiring disease-specific measures against infection. Examples include the provision of tetanus antitoxin or booster toxoid injections for puncture wounds; administration of rabies vaccine for a bite from a rabid or potentially rabid animal; or appropriate measures where exposure to human immunodeficiency virus (HIV) has occurred.

(c) Conversion of tuberculin reaction from negative to positive following exposure to tuberculosis in the performance of duty. In this situation, the appropriate therapy may be authorized.

(d) Where injury to one eye has resulted in loss of vision, periodic examination of the uninjured eye to detect possible sympathetic involvement of the uninjured eye at an early stage.

§ 10.314

Will OWCP pay for the services of an attendant?

Yes, OWCP will pay for the services of an attendant where the need for such services has been medically documented. In the exercise of the discretion afforded by 5 U.S.C. 8111(a), the Director has determined that, except where attendant service payments were being made prior to January 4, 1999, direct payments to the claimant to cover such services will no longer be made. Rather, the cost of providing attendant services will be paid under section 8103 of the Act, and medical bills for these services will be considered under § 10.801, so long as the personal care services have been determined to be medically necessary and are provided by a home health aide, licensed practical nurse, or similarly trained individual, subject to requirements specified by OWCP. By paying for the services under section 8103, OWCP can better determine whether the services provided are necessary, and what type of provider is most qualified to provide adequate care to meet the needs of the injured employee. In addition, a system requiring the personal care provider to submit a bill to OWCP, where the amount billed will be subject to OWCP's fee schedule, will result in greater fiscal accountability.

§ 10.315

Will OWCP pay for transportation to obtain medical treatment?

(a) The employee is entitled to reimbursement of reasonable and necessary expenses, including transportation needed to obtain authorized medical services, appliances or supplies. To determine what is a reasonable distance to travel, OWCP will consider the availability of services, the employee's condition, and the means of transportation. Generally, a roundtrip distance of up to 100 miles is considered a reasonable distance to travel. Travel should be undertaken by the shortest route, and if practical, by public conveyance. If the medical evidence shows that the employee is unable to use these means of transportation, OWCP may authorize travel by taxi or special conveyance.

(b) For non-emergency medical treatment, if roundtrip travel of more than 100 miles is contemplated, or air transportation or overnight accommodations will be needed, the employee must submit a written request to OWCP for prior authorization with information describing the circumstances and necessity for such travel expenses. OWCP will approve the request if it determines that the travel expenses are reasonable and necessary, and are incident to obtaining authorized medical services, appliances or supplies. Requests for travel expenses that are often approved include those resulting from referrals to a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited local medical services.

(c) If a claimant disagrees with the decision of OWCP that requested travel expenses are either not reasonable or necessary, or are not incident to obtaining authorized medical services or supplies, he or she may utilize the appeals process described in subpart G of this part.

(d) The standard form designated for medical travel refund requests is Form OWCP-957 and must be used to seek reimbursement under this section. This form can be obtained from OWCP.

§ 10.316

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

(a) When the physician originally selected to provide treatment for a work-related injury refers the employee to a specialist for further medical care, the employee need not consult OWCP for approval. In all other instances, however, the employee must submit a written request to OWCP with his or her reasons for desiring a change of physician.

(b) OWCP will approve the request if it determines that the reasons submitted are sufficient. Requests that are often approved include those for transfer of care from a general practitioner to a physician who specializes in treating conditions like the work-related one, or the need for a new physician when an employee has moved. The employer may not authorize a change of physicians.

Directed Medical Examinations

§ 10.320

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

OWCP sometimes needs a second opinion from a medical specialist. The employee must submit to examination by a qualified physician as often and at such times and places as OWCP considers reasonably necessary. The employee may have a qualified physician, paid by him or her, present at such examination. However, the employee is not entitled to have anyone else present at the examination unless there is rationalized medical evidence that establishes that someone else is needed in the room or OWCP decides that exceptional circumstances exist. Where an employee requires an accommodation, such as where a hearing-impaired employee needs an

interpreter, the presence of an interpreter will be allowed. Also, OWCP may send a case file for second opinion review where actual examination is not needed, or where the employee is deceased.

§ 10.321

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

(a) If one medical opinion holds more probative value, OWCP will base its determination of entitlement on that medical conclusion (see § 10.502). A difference in medical opinion sufficient to be considered a conflict occurs when two reports of virtually equal weight and rationale reach opposing conclusions (see

James P. Roberts,

31 ECAB 1010 (1980)).

(b) If a conflict exists between the medical opinion of the employee's physician and the medical opinion of either a second opinion physician or an OWCP medical adviser or consultant, OWCP shall appoint a third physician to make an examination (see § 10.502). This is called a referee or impartial examination. OWCP will select a physician who is qualified in the appropriate specialty and who has had no prior connection with the case. The employee is not entitled to have anyone present at the examination unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed. Also, a case file may be sent for referee or impartial medical review where there is no need for an actual examination, or where the employee is deceased.

§ 10.322

Who pays for second opinion and referee examinations?

OWCP will pay second opinion and referee medical specialists directly. OWCP will reimburse the employee all necessary and reasonable expenses incident to such an examination, including transportation costs and actual wages lost for the time needed to submit to an examination required by OWCP.

§ 10.323

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

(a) If an employee refuses to submit to or in any way obstructs an examination required by OWCP, including testing such as functional capacity determinations conducted in connection with an OWCP-directed medical examination, his or her right to compensation under the FECA is suspended under 5 U.S.C. 8123(d) until such refusal or obstruction stops. The action of the employee's representative is considered to be the action of the employee for purposes of this section. The employee will forfeit compensation otherwise paid or payable under the FECA for the period of the refusal or obstruction, and any compensation already paid for that period will be declared an overpayment and will be subject to recovery pursuant to 5 U.S.C. 8129.

(b) If the employee does not report for an OWCP-directed examination or in any way obstructs this examination, he or she may provide an explanation to OWCP within 14 days. If this explanation does not establish good cause for the employee's actions, entitlement to compensation will be suspended in accordance with 5 U.S.C. 8123(d). Should the employee subsequently agree to attend the examination or cease the obstruction (as expressed in writing or by telephone documented on Form CA-110), OWCP will restore any periodic benefits to which the employee is entitled when the employee actually reports for and cooperates with the examination. Payment is retroactive to the date the employee agreed to attend or cease obstruction of the examination.

§ 10.324

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

The employer may have authority independent of the FECA to require the employee to undergo a medical examination to determine whether he or she meets the medical requirements of the position held or can perform the duties of that position. Nothing in the FECA or in this part affects such authority. However, no agency-required examination or related activity shall interfere with the employee's initial choice of physician or the provision of any authorized examination or treatment, including the issuance of Form CA-16.

Medical Reports

§ 10.330

What are the requirements for medical reports?

In all cases reported to OWCP, a medical report from the attending physician is required. This report should include:

(a) Dates of examination and treatment;

(b) History given by the employee;

(c) Physical findings;

(d) Results of diagnostic tests;

(e) Diagnosis;

(f) Course of treatment;

(g) A description of any other conditions found but not due to the claimed injury;

(h) The treatment given or recommended for the claimed injury;

(i) The physician's opinion, with medical reasons, as to causal relationship between the diagnosed condition(s) and the factors or conditions of the employment;

(j) The extent of disability affecting the employee's ability to work due to the injury;

(k) The prognosis for recovery; and

(l) All other material findings.

§ 10.331

How and when should the medical report be submitted?

(a) Form CA-16 may be used for the initial medical report; Form CA-20 may be used for the initial report and for subsequent reports; and Form CA-20a may be used where continued compensation is claimed. Use of medical report forms is not required, however. The report may also be made in narrative form on the physician's letterhead stationery. The report should bear the physician's signature or signature stamp. OWCP may require an original signature on the report.

(b) The report shall be submitted directly to OWCP as soon as possible after medical examination or treatment is received, either by the employee or the physician. (See also § 10.210.) The employer may request a copy of the report from OWCP. The employer should use Form CA-17 to obtain interim reports concerning the duty status of an employee with a disabling injury.

§ 10.332

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

In all cases of serious injury or disease, especially those requiring hospital treatment or prolonged care, OWCP will request detailed narrative reports from the attending physician at periodic intervals. The physician will be asked to describe continuing medical treatment for the condition accepted by OWCP, a prognosis, a description of work limitations, if any, and the physician's opinion as to the continuing causal relationship between the employee's condition and factors of his or her Federal employment.

§ 10.333

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

To support a claim for a schedule award, a medical report must contain accurate measurements of the function of the organ or member, in accordance with the American Medical Association's

Guides to the Evaluation

of Permanent Impairment

as described in § 10.404. These measurements may include: The actual degree of loss of active or passive motion or deformity; the amount of atrophy; the decrease, if any, in strength; the disturbance of sensation; pain due to nerve impairment; the diagnosis of the condition; and functional impairment ratings.

Medical Bills

§ 10.335

How are medical bills submitted?

Usually, medical providers submit bills directly to OWCP or to a bill processing agent designated by OWCP. The rules for submitting and paying bills are stated in subpart I of this part. An employee claiming reimbursement of medical expenses should submit an itemized bill as described in § 10.802.

§ 10.336

What are the time frames for submitting bills?

To be considered for payment, bills must be submitted by the end of the calendar year after the year when the expense was incurred, or by the end of the calendar year after the year when OWCP first accepted the claim as compensable, whichever is later.

§ 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?

(a) The OWCP fee schedule sets maximum limits on the amounts payable for many services (see § 10.805). The employee may be only partially reimbursed for medical expenses because the amount he or she paid to the medical provider for a service exceeds the maximum allowable charge set by the OWCP fee schedule.

(b) If this happens, OWCP shall advise the employee of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee's account, the amount he or she paid which exceeds the maximum allowable charge. The provider may request reconsideration of the fee determination as set forth in §§ 10.812 and 10.813.

(c) If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the charge which OWCP allows, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may make reasonable reimbursement to the employee after reviewing the facts and circumstances of the case.

Subpart E—Compensation and Related Benefits

Compensation for Disability and Impairment

§ 10.400

What is total disability?

(a) Permanent total disability is presumed to result from the loss of use of both hands, both arms, both feet, or both legs, or the loss of sight of both eyes. 5 U.S.C. 8105(b). However, the presumption of permanent total disability as a result of such loss may be rebutted by evidence to the contrary, such as evidence of continued ability to work and to earn wages despite the loss.

(b) Temporary total disability is defined as the inability to return to the position held at the time of injury or earn equivalent wages, or to perform other gainful employment, due to the work-related injury. Except as presumed under paragraph (a) of this section, an employee's disability status is always considered temporary pending return to work.

§ 10.401

When and how is compensation for total disability paid?

(a) Compensation is payable when an employee starts to lose pay if the injury causes permanent disability or if pay loss continues for more than 14 calendar days. Otherwise, compensation is payable on the fourth day after pay stops pursuant to 5 U.S.C. 8117(a). Compensation may not be paid while an injured employee is in a continuation of pay status or receives pay for leave or, for Postal Service employees, for the first three days of temporary disability as described in 5 U.S.C. 8117(b) and § 10.200(c), except for medical or vocational rehabilitation benefits.

(b) Compensation for total disability is payable at the rate of 66

2/3

percent of the pay rate if the employee has no dependents, or 75 percent of the pay rate if the employee has at least one dependent. (“Dependents” are defined at 5 U.S.C. 8110(a).)

§ 10.402

What is partial disability?

An injured employee who cannot return to the position held at the time of injury (or earn equivalent wages) due to the work-related injury, but who is not totally disabled for all gainful employment, is considered to be partially disabled.

§ 10.403

When and how is compensation for partial disability paid?

(a) 5 U.S.C. 8115 outlines how compensation for partial disability is determined. If the employee has actual earnings which fairly and reasonably represent his or her wage-earning capacity, those earnings will form the basis for payment of compensation for partial disability. (See §§ 10.500 through 10.521 concerning return to work.) If the employee's actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the employee has no actual earnings, OWCP uses the factors stated in 5 U.S.C. 8115 to select a position which represents his or her wage-earning capacity, which include the nature of the injury, the degree of physical impairment, the usual employment, the age of the employee, the employee's qualifications for other employment and the availability of suitable employment. However, OWCP will not secure employment for the employee in the position selected for establishing a wage-earning capacity.

(b) Compensation for partial disability is payable as a percentage of the difference between the employee's pay rate for compensation purposes and the employee's wage-earning capacity. The percentage is 66

2/3

percent of this difference if the employee has no dependents, or 75 percent of this difference if the employee has at least one dependent.

(c) The formula which OWCP uses to compute the compensation payable for partial disability employs the following terms: Pay rate for compensation purposes, which is defined in § 10.5(s) of this part; current pay rate, which means the salary or wages for the job held at the time of injury at the time of the determination; and earnings, which means the employee's actual earnings, or the salary or pay rate of the position selected by OWCP as representing the employee's wage-earning capacity.

(d) The employee's wage-earning capacity in terms of percentage is computed by dividing the employee's earnings by the current pay rate. The comparison of earnings and “current” pay rate for the job held at the time of injury need not be made as of the beginning of partial disability. OWCP may use any convenient date for making the comparison as long as both wage rates are in effect on the date used for comparison.

(e) The employee's wage-earning capacity in terms of dollars is computed by first multiplying the pay rate for compensation purposes by the percentage of wage-earning capacity. The resulting dollar amount is then subtracted from the pay rate for compensation purposes to obtain the employee's loss of wage-earning capacity.

§ 10.404

When and how is compensation for a schedule impairment paid?

Compensation is provided for specified periods of time for the permanent loss or loss of use of certain members, organs and functions of the body. Such loss or loss of use is known as permanent impairment. Compensation for proportionate periods of time is payable for partial loss or loss of use of each member, organ or function. 5 U.S.C. 8107(b)(19). OWCP evaluates the degree of impairment to schedule members, organs and functions as defined in 5 U.S.C. 8107 according to the standards set forth in the specified (by OWCP) edition of the American Medical Association's

Guides to the Evaluation of Permanent Impairment.

(a) 5 U.S.C. 8107(c) provides compensation for loss to the following list of schedule members:

Member

Weeks

Arm

312

Leg

288

Hand

244

Foot

205

Eye

160

Thumb

75

First Finger lost

46

Great toe

38

Second finger

30

Third finger

25

Toe other than great toe

16

Fourth finger

15

Hearing, one ear

52

Hearing, both ears

200

(b) Pursuant to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary has added the following organs to the compensation schedule for injuries that were sustained on or after September 7, 1974, except that a schedule award for the skin may be paid for injuries on or after September 11, 2001:

Member

Weeks

Breast (one)

52

Kidney (one)

156

Larynx

160

Lung (one)

156

Penis

205

Testicle (one)

52

Tongue

160

Ovary (one)

52

Uterus/cervix and vulva/vagina

205

Skin

205

(c) Compensation for schedule awards is payable at 66

2/3

percent of the employee's pay, or 75 percent of the pay when the employee has at least one dependent.

(d) The period of compensation payable under 5 U.S.C. 8107(c) shall be reduced by the period of compensation paid or payable under the schedule for an earlier injury if:

(1) Compensation in both cases is for impairment of the same member or function or different parts of the same member or function, or for disfigurement; and

(2) OWCP finds that compensation payable for the later impairment in whole or in part would duplicate the compensation payable for the pre-existing impairment.

(e) Compensation not to exceed $3,500 may be paid for serious disfigurement of the face, head or neck which is likely to handicap a person in securing or maintaining employment. Under 5 U.S.C. 8107(21), a disfigurement award may be paid concurrently with schedule awards.

§ 10.405

Who is considered a dependent in a claim based on disability or impairment?

(a) Dependents include a wife or husband; an unmarried child under 18 years of age; an unmarried child over 18 who is incapable of self-support; a student, until he or she reaches 23 years of age or completes four years of school beyond the high school level; or a wholly dependent parent.

(b) Augmented compensation payable for an unmarried child, which would otherwise terminate when the child reached the age of 18, may be continued while the child is a student as defined in 5 U.S.C. 8101(17).

§ 10.406

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

(a) Compensation for total or partial disability may not exceed 75 percent of the basic monthly pay of the highest step of grade 15 of the General Schedule. (Basic monthly pay does not include locality adjustments.) However, this limit does not apply to disability sustained in the performance of duty which was due to an assault which occurred during an attempted assassination of a Federal official described under 18 U.S.C. 351(a) or 1751(a).

(b) Compensation for total disability may not be less than 75 percent of the basic monthly pay of the first step of grade 2 of the General Schedule or actual pay, whichever is less. (Basic monthly pay does not include locality adjustments.)

Compensation for Death

§ 10.410

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

(a) Pursuant to 5 U.S.C. 8133, benefits may be paid to eligible dependents of an employee whose death results from an injury sustained in the performance of duty. This benefit is separate and distinct from a death gratuity benefit under 5 U.S.C. 8102a and subpart J of this part.

(b) If there is no child entitled to compensation, the employee's surviving spouse will receive compensation equal to 50 percent of the employee's monthly pay until death or remarriage before reaching age 55. Upon remarriage, the surviving spouse will be paid a lump sum equal to 24 times the monthly compensation payment (excluding compensation payable on account of another individual) to which the surviving spouse was entitled immediately before the remarriage. If remarriage occurs at age 55 or older, the lump-sum payment will not be paid and compensation will continue until death.

(c) If there is a child entitled to compensation, the compensation for the surviving spouse will equal 45 percent of the employee's monthly pay plus 15 percent for each child, but the total percentage may not exceed 75 percent.

(d) If there is a child entitled to compensation and no surviving spouse, compensation for one child will equal 40 percent of the employee's monthly pay. Fifteen percent will be awarded for each additional child, not to exceed 75 percent, the total amount to be shared equally among all children.

(e) If there is no child or surviving spouse entitled to compensation, the parents will receive compensation equal to 25 percent of the employee's monthly pay if one parent was wholly dependent on the employee at the time of death and the other was not dependent to any extent, or 20 percent each if both w

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