# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-14915 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 28, 2011 - **Citation:** 76 FR 37898 ## Text DEPARTMENT OF LABOR Office of Workers' Compensation Programs 20 CFR Parts 1, 10 and 25 RIN 1240-AA03 Performance of Functions; Claims for Compensation Under the Federal Employees' Compensation Act; Compensation for Disability and Death of Noncitizen Federal Employees Outside the United States AGENCY: Office of Workers' Compensation Programs, Department of Labor. ACTION: 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 empl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-14915. Public record. Not legal advice.