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

SUMMARY: On December 23, 1997, the Department of Labor proposed

revisions to the regulations governing the administration of the

Federal Employees' Compensation Act (FECA) (62 FR 67120). 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.

The proposed changes were summarized in that publication. They

contain a major revision of the medical fee schedule to include

pharmacy and inpatient hospital bills. Other significant new provisions

address suspension of benefits during incarceration and termination of

benefits for conviction of fraud against the program; changes to the

continuation of pay (COP) provisions; paying for an attendant as a

medical expense; inclusion of OWCP nurse services in the definition of

vocational rehabilitation services; clarifying the reconsideration

process; restricting entitlement to postpone oral hearings;

clarification of subpoena authority; streamlining the standards for

review of representatives' fees; provision of more detailed guidance

for claims involving the liability of a third party; and clarification

of procedures for claims filed by non-Federal law enforcement officers.

Finally, in light of comments received, the proposal to remove all

references to leave repurchase has been abandoned in favor of including

a brief mention of this practice.

EFFECTIVE DATE: January 4, 1999.

FOR FURTHER INFORMATION CONTACT: Thomas M. Markey, Director for Federal

Employees' Compensation, Employment Standards Administration, U.S.

Department of Labor, Room S-3229, 200 Constitution Avenue N.W.,

Washington, DC 20210; Telephone (202) 693-0040.

SUPPLEMENTARY INFORMATION: Proposed regulations were published in the

Federal Register on December 23, 1997 (62 FR 67120). They allowed a 60-

day period for comment, during which the Department of Labor received

timely comments from 24 parties. Thirteen were submitted by Federal

employing agencies, seven by labor organizations which represent

Federal employees, two by attorneys, one by a physician, and one by a

Department of Labor employee. Four untimely comments from Federal

employing agencies were also received; many of the points they made

were also made by other commenters.

The comments centered on time frames for use of continuation of pay

(COP), time frames for submittal of forms by agencies, and postponement

of hearing requests. None of the comments represented a profound

challenge to the proposed rules.

This final rule applies to cases where the injury or death occurred

before the effective date, but only when an initial decision on a

particular issue is made on or after the effective date. This final

rule does not apply, however, to issues decided for the first time in

one of these cases before the effective date, even when such decision

is being reviewed after a hearing before an OWCP representative, on

reconsideration before OWCP, or on appeal to the Employees'

Compensation Appeals Board (ECAB).

Several changes were made which did not result from the comments.

One is the addition of nine new OMB clearance numbers to Sec. 10.3

since publication of the Notice of Proposed Rulemaking. Another is that

Sec. 10.500 has been subdivided for clarity into four different

subsections, and the contents have been rearranged slightly. Also, the

title of subpart F has been changed to ``Continuing Benefits'', and the

title of subpart G has been changed to ``Appeals Process'' for clarity.

Several of the questions have been modified slightly for clarity, or so

that they will be understandable on their own, without reference to the

section where they appear.

Finally, after reviewing the decision of the United States District

Court for the District of Massachusetts in Jones-Booker v. United

States (C.A. No. 97cv10616-PBS, May 20, 1998), a provision is being

added as new Sec. 10.607(c). This provision will toll the running of

the one-year time limitation for requesting reconsideration during any

period for which the claimant can establish through the submission of

probative medical evidence that he or she was unable to communicate in

any way, and that his or her testimony was necessary to obtain

modification of the prior decision. Any such period is not counted as

part of the year in which a claimant has to timely request

reconsideration. To establish eligibility for such tolling, the

claimant will have the burden of proving both that he or she was unable

to communicate in any way and that his or her testimony was necessary

to establish factual matters that could not be established in any other

way.

Overall, the parties who commented on the organization of the

proposed regulations, the new question-and-answer format, and the

``plain English'' approach approved of these changes. However, one

agency stated that the question-and-answer format might well be

problematical, and that subject headings would be easier to follow.

The Department's analysis of the comments received is set forth

below. Unless otherwise stated, section numbers refer to the revised

regulations. No comments were received with respect to part 25.

Section 10.0

One labor organization asked that OWCP clarify the introduction to

the regulations at Sec. 10.0 by adding ``including an officer or

employee of an instrumentality wholly owned by the United States'' to

the first sentence. However, this same phrase already appears in the

definition of ``Employee'' at Sec. 10.5(h)(1), and it is not felt that

repeating it in Sec. 10.0 would provide any further clarification.

Therefore, this change is not being made.

Section 10.5(a)

Two labor organizations noted OWCP's efforts to streamline its

regulations and suggested dropping the term ``Compensation'' from the

first line of Sec. 10.5(a) since ``Compensation'' is defined at section

8101(12) of the FECA. While it is true that the FECA contains a general

definition of ``Compensation,'' Sec. 10.5(a) provides a more precise

definition of this term (which is used interchangeably with

``Benefits'' throughout these regulations) that takes into account the

construction given to this particular section since the FECA was first

amended to include it in 1924. Therefore, dropping the term

``Compensation'' from Sec. 10.5(a) would not be consistent with OWCP's

streamlining effort, and the suggestion is not adopted.

Two labor organizations also argued that Sec. 10.5(a) should not

include ``medical treatment'' paid for out of the Employees''

Compensation Fund since beneficiaries are entitled to medical treatment

for employment-related injuries and illnesses regardless of whether or

not they sustain any

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disability. However, this argument ignores the fact that, as one of the

``benefits paid for from the Employees'' Compensation Fund,'' medical

treatment clearly falls within the statutory definition of

``Compensation'' set out at section 8101(12). Also, the regulatory

definition of ``Benefits or Compensation'' in use since 1987 (20 CFR

10.5(a)(6)) includes ``medical treatment'' and, as there was no intent

to change this aspect of the definition in these regulations, the

suggestion is not accepted.

Section 10.5(f)

One commenter disagreed with the dual economic and medical nature

of the definition of ``Disability'' in Sec. 10.5(f) and argued that the

definition of this word should focus solely on clinical findings.

However, such a change would be contrary to settled precedent of the

ECAB that has emphasized both the economic and medical aspects of

disability for work under the FECA. Also, the regulatory definition of

``Disability'' in use since 1987 (20 CFR 10.5(a)(17)) was essentially

identical to Sec. 10.5(f), and as there was no intent to change this

definition in these regulations, the suggestion is not adopted.

Section 10.5(g)

While one labor organization commended OWCP for providing further

helpful explanation of the term ``Earnings from employment or self-

employment'' in the definition at Sec. 10.5(g), another labor

organization asserted that ``reimbursed expenses'' are ``commonly not

considered to be income'' and asked that they be deleted from the list

of examples contained in Sec. 10.5(g)(1) because they are not paid for

``services'' as that word is used in section 8114(e) of the FECA. There

is nothing in the language referenced in section 8114(e) that would

necessarily take precedence over the general requirement in section

8106(b) of the FECA that an employee must include any ``other

advantages which are part of his earnings in employment or self-

employment and which can be estimated in money'' in his reports to

OWCP. The regulatory definition of ``Earnings from employment or self-

employment'' in use since 1987 (20 CFR 10.125(c)) has included

``reimbursed expenses'', and as there was no intent to change this

definition in these regulations, the request to delete this specific

example from the list in Sec. 10.5(g)(1) is not adopted.

Section 10.5(q)

One labor organization requested that the word ``by'' in the

definition of ``Occupational disease or illness'' at Sec. 10.5(q) be

changed to ``in'' as it appeared in the prior regulatory definition in

use since 1987. However, using the word ``in'' would not adequately

convey the requirement in section 8101(5) of the FECA that occupational

diseases or illnesses be ``proximately caused by the employment''

(emphasis added) rather than merely occurring during or ``in'' a period

of employment in order to be compensable. Therefore, while there was no

intent in these regulations to change the prior definition of

``Occupational disease or illness'' in any significant way, the

requested change would not clarify Sec. 10.5(q) in a manner consistent

with the FECA, and it is therefore not adopted.

Section 10.5(x)

One Federal agency and two labor organizations expressed concern

about the intended effect of the word ``material'' in the definition of

``Recurrence of disability'' and requested further clarification from

OWCP. After considering the practical impact of the word ``material''

on the definition of this term, it does not appear that this particular

word adds any further precision to Sec. 10.5(x), and therefore it is

deleted.

One labor organization suggested that confusion might result from

the use of the term ``intervening injury'' in Sec. 10.5(x) given the

precise meaning of this term in the adjudication of claims for

consequential injuries. However, since the context of Sec. 10.5(x)

makes it clear that the term ``intervening injury'' merely refers to a

type of work stoppage that is not due to a ``spontaneous change in a

medical condition,'' and there was no intent to limit this term to the

meaning it has with respect to consequential injuries, modification of

this particular term is not warranted.

The same labor organization also suggested that the reductions-in-

force referred to Sec. 10.5(x) as not resulting in recurrences of

disability be limited to ``officially mandated'' actions. As the agency

responsible for adjudicating FECA claims for the entire Federal

workforce, OWCP must be able to rely upon employers (and claimants) to

advise it of any relevant and pertinent personnel actions that might

have some bearing on the outcome of a FECA claim. OWCP has neither the

resources nor the expertise to ascertain whether reductions-in-force

are ``officially mandated'' (presumably, this phrase is equivalent to

``duly authorized''), and must leave disputes about individual

reductions-in-force to be resolved in the proper forum. Moreover, the

words ``general'' or ``officially mandated'' add nothing to the sense

of this section or its legal force. Under these circumstances, the

requested modification of ``reductions-in-force'' would not be workable

and is therefore not adopted.

Finally, two Federal agencies suggested that language be added to

Sec. 10.5(x) to highlight that a ``Recurrence of disability'' does not

occur after an employee recuperates from surgery for an employment-

related condition or injury if he or she has no entitlement to monetary

benefits for refusing an offer of suitable work. Another commenter

disagreed with the concept of recurrences altogether. This group of

comments about the effect of changes in an employee's accepted medical

condition indicates that it would be helpful to add another definition

to answer the concerns raised. Therefore, Sec. 10.5 is revised to add a

new Sec. 10.5(y), ``Recurrence of medical condition'', and subsequent

paragraphs are renumbered accordingly.

Section 10.5(dd)

One labor organization suggested that a portion of the definition

of ``Temporary aggravation'' in Sec. 10.5(cc) (renumbered Sec. 10.5(dd)

in accordance with the revision noted above) be changed from ``caused

that condition'' to ``caused that preexisting condition.'' This same

organization also suggested that the second part of this section be

changed from ``no greater impairment than existed prior to the

employment injury'' to ``no greater impairment or disability than

existed prior to the aggravation.'' The first wording change is

redundant, given the context, and the second wording change would

modify the sense of the definition in use since 1987 (20 CFR

10.5(a)(18)), which the program had no intent to change. For these

reasons, the suggested changes are not adopted.

Section 10.5(ee)

One Federal agency assumed that the proposed definition of

``Traumatic injury'' in Sec. 10.5(dd) (renumbered Sec. 10.5(ee) in

accordance with the revision noted above) differed from the prior

regulatory definition of this term in that it now included the phrase

``external force,'' and requested further clarification regarding the

meaning of this phrase. However, the definition of ``Traumatic injury''

has included the phrase ``external force'' since 1975 and no further

definition of this phrase is required since it does not represent an

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attempt to change the existing definition.

Section 10.6

One Federal agency felt that the statement that ``certain other

benefits are payable'' in Sec. 10.6(b) was not consistent with the

language of section 8148(b)(3) of the FECA, which provides OWCP with

discretionary authority in this area, and should be changed to

``certain other benefits may be payable * * *.'' We agree that the

statute does give OWCP discretion in this matter, and Sec. 10.6(b) is

therefore revised consistent with the suggestion.

The same agency also felt that Sec. 10.6(c) should refer only to

persons who live in the beneficiary's household ``and are'' dependent

on the beneficiary for support. Adoption of this idea would eliminate

compensation payable for dependents living in another household through

no fault of their own, e.g., minor children whose non-custodial parent

is a beneficiary. In any event, this interpretation of the term

``dependent'' does not conform to the statutory test for dependency

contained in section 8110(a) of the FECA, and the suggested revision is

not adopted.

Finally, this agency suggested addition of a means test for

dependents to this section and to Sec. 10.405. The FECA contains no

basis for such a measure.

Section 10.7

Three agencies commented on the use of Form CA-3, two stating that

they would like to see continued use of the form, and one stating that

there should be some way to report return to duty in its place. If the

form is not to be required, one agency said that it should be removed

from the list. On balance, OWCP does not believe that use of the form

should be required, since agencies routinely notify the district

offices when employees return to work. Form CA-3 is therefore being

removed from the list. However, OWCP is looking into alternative means

of collecting the information requested on this form.

One agency inquired about the purpose of Form CA-12, and another

suggested that it simply be deleted from the list. A labor organization

suggested that its purpose be clarified. OWCP uses this form to obtain

reports of dependents in death cases. As the form is used exclusively

by OWCP, and employers have no need to stock it, it is being removed

from the list.

Two employee organizations suggested that this section include a

statement that employers may not modify forms prescribed by OWCP, or

use substitute forms. A statement to that effect is being added to

paragraph (a).

Forms CA-7a and CA-7b have been added to the list (see the comments

concerning leave buy-back at the end of this analysis).

Sections 10.10, 10.11, and 10.12

Two agencies commented on the statement that all records related to

claims filed under the FECA are covered by the Government-wide system

of records established by the Department of Labor. More specifically,

they stated that an employer generates and maintains a variety of

records systems in connection with claims filed under the FECA. The

agencies suggested that Sec. 10.10 be revised to provide that DOL/GOVT-

1 covers only those records whose primary purpose is to generate,

record or report data required by OWCP in its adjudication of claims.

All other records an agency may generate as a result of a claim, such

as those needed for personnel actions, payroll actions, safety records

and investigative reports, should be subject only to the agency's

Privacy Act regulations.

Similar comments were submitted to OWCP in connection with its

proposal to amend former Sec. 10.12 of the FECA regulations. In the

final rule promulgated in the Federal Register on October 22, 1998,

OWCP concluded that all records collected because a claim was filed

seeking benefits under the FECA, including copies of records maintained

by the employing agency, were official records of OWCP and, with one

limited exception, covered by DOL/GOVT-1.

OWCP recognized, however, that a record may be created to satisfy

two or more purposes, and therefore may be covered by other systems of

records even though the subject matter of the document relates to an

on-the-job injury sustained by a Federal employee. Thus, for example,

records collected by an agency as part of a safety, personnel, or

criminal investigation conducted pursuant to statutory or regulatory

authority other than the FECA would not be covered by DOL/GOVT-1,

unless they are submitted by the employee or the agency to OWCP for

consideration in connection with the FEC claim. Readers are directed to

the comments set forth at 63 FR 56752.

As noted above, the Department's proposed amendments to former

Sec. 10.12 have been adopted as a final rule. To ensure consistency,

the provisions of that rule are being included in this publication.

With respect to Sec. 10.12, a commenter alleged that he had

experienced difficulty obtaining copies of case records from OWCP and

recommended that this provision be revised to include a time

limitation. The Department of Labor's regulations at 29 CFR part 71

contain the pertinent time limitations applicable to Privacy Act

requests, and repeating them in these regulations would serve no useful

purpose.

The same commenter also suggested that Sec. 10.12 be revised to

require OWCP to suspend the adjudication process until it complies with

a request for copies under this section, and also to provide claimants

with an opportunity to ``review and respond to the final decision after

being provided with the requested documents.'' However, there is no

reason given to support the recommendation that case adjudication

should be interrupted until OWCP responds to a request under this

provision, and the time periods within which claimants can exercise

their appeal rights are set out in either the FECA itself or the ECAB's

regulations and cannot be altered in these regulations. Accordingly,

this second group of suggested revisions to Sec. 10.12 have also not

been made.

Section 10.16

One Federal agency requested the addition of a sentence at the end

of Sec. 10.16(a) to ``clarify'' that OWCP both cooperates with and

supports the Department of Justice's efforts to enforce the criminal

provisions that apply to claims under the FECA. However, OWCP already

cooperates with and supports these efforts to vigorously enforce the

criminal provisions referred to in Sec. 10.16(a). Therefore, since the

addition of an essentially hortatory sentence will not ``clarify''

OWCP's policy any further, the suggestion is not adopted.

One labor organization suggested deleting the phrase ``for making a

false report'' from the question asked by Sec. 10.16 to clarify that

one of the criminal provisions referenced in this section, 18 U.S.C.

1922, applies to employer actions that wrongfully impede a claim. Since

the question asked by proposed Sec. 10.16 refers only to penalties that

arise from filing a false report, it is revised consistent with the

suggestion.

The same labor organization also suggested that a new subsection

(c) be added to Sec. 10.16 to further clarify that criminal penalties

apply to actions by employers that wrongfully impede a claim. However,

Sec. 10.16(a) already lists 18 U.S.C. 1922 as one of the criminal

provisions that can apply in connection with a claim under the FECA, so

the addition of a new subsection to address this one provision is not

seen as necessary. Instead, this subsection is

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revised to clarify that criminal penalties also apply to actions of

employers that wrongfully impede a claim.

Section 10.17

One Federal agency inquired whether the forfeiture of benefits

provided for in Sec. 10.17 applied to both Federal and State crimes and

requested clarification if that was indeed the case. In light of the

fact that section 8148(a) of the FECA refers to any ``Federal or State

criminal statute,'' Sec. 10.17 is revised consistent with the

suggestion. The same agency also requested that a reporting requirement

be added to this section so beneficiaries would have to inform OWCP of

their convictions, and such a requirement will in fact be added to Form

CA-1032.

Section 10.18

One Federal agency asked whether benefits inadvertently paid to an

incarcerated beneficiary would be considered an overpayment of

compensation, and also asked whether the forfeiture described in

Sec. 10.18(a) would apply to a period of time already served prior to

conviction that is later included in the sentence of a convicted felon.

As for the overpayment inquiry, an incarcerated felon is not entitled

to compensation during the period of his or her incarceration, and

therefore any compensation paid to such an individual would clearly

constitute an overpayment of compensation under section 8129 and would

be recoverable as such.

With respect to the possible retroactive application of any such

forfeiture, section 8148(b)(1) specifies the potential range of these

forfeitures by providing that ``no benefits * * * shall be paid or

provided to any individual during any period'' of incarceration, not

for any period of incarceration. This temporal limitation means that

the forfeiture provided for by section 8148(b)(1) of the FECA will

result only in a cessation of current payments that would otherwise

have been made ``during'' a period of incarceration based on a felony

conviction, and will not also result in a retroactive forfeiture for a

period of time already served prior to conviction if subsequently

included in the sentence.

Four Federal agencies objected to OWCP's blanket decision in

Sec. 10.18(b) to exercise the discretion granted it by section

8148(b)(3) of the FECA in such a way as to require the payment of

benefits to eligible dependents of all incarcerated beneficiaries,

since this is a ``benefit'' that was not available to family members of

uninjured Federal employees incarcerated for felony convictions. One of

these agencies wanted OWCP to restrict payments of this sort to

dependents of felons who are incarcerated for periods of up to six

months only, while two of the four agencies complained that there would

be ``no reduction in compensation benefits'' in certain situations

under Sec. 10.18(b).

OWCP's policy is consistent with both the remedial aspect of the

FECA and Congress's decision in section 8148(b)(3) to provide OWCP with

the discretion necessary to make these types of payments. Also, these

comments include no recognition that OWCP has exercised this discretion

in such a way that these payments to dependents will never exceed 75%

of the incarcerated felon's gross current entitlement (which is less

than their monthly pay), and will therefore always result in a

reduction of compensation benefits. To clarify matters, Sec. 10.18(b)

is revised to point out that dependents under this paragraph will not

be paid the same amount of compensation as other dependents.

One of these four Federal agencies also requested that a reporting

requirement be added to this section so incarcerated felons would have

to inform OWCP when they were incarcerated, and such a requirement will

be added to Form CA-1032.

Section 10.100

With respect to paragraph (b)(1), one agency requested some

examples of verbal notifications of injury, asking specifically what

would happen if an employee claimed to have told a supervisor that an

injury occurred, but the supervisor died before the facts could be

determined. In practice, verbal notification very seldom forms the

basis for a claim. In problematic situations such as the one cited,

OWCP would need to explore the surrounding circumstances and make a

finding consistent with all of the evidence. Since such situations are

so individual in nature, as well as quite rare in occurrence, OWCP does

not believe that a fuller discussion of this matter in the regulations

is warranted.

A commenter objected to the three-year time limit, which is set by

law. A modification to it would require a change to the FECA itself.

Sections 10.101 Through 10.106

An employer stated that proposed Sec. 10.103 is redundant, since it

essentially repeats the contents of proposed Sec. 10.101. This point is

well taken. The positions of proposed Sec. 10.102 and Sec. 10.101 have

been reversed, the title of proposed Sec. 10.101 (now Sec. 10.102) has

been reworded, and proposed Sec. 10.104 through Sec. 10.106 have been

renumbered Sec. 10.103 through Sec. 10.105. (The suggestion from a

labor organization that the heading in Sec. 10.103 be rephrased to

include only compensable injuries therefore becomes moot). The

following comments refer to the provisions as renumbered.

Sections 10.100(b)(3), 10.101(a), and 10.105(a)

Three labor organizations objected to the provision allowing for

withdrawal of claims on the grounds that employers may pressure

employees to drop claims. While the program continues to believe that

there are valid reasons for retaining this provision, the text of

Sec. 10.117(b) has been modified to prohibit employers from compelling

or inducing employees to withdraw claims.

Two agencies suggested that language be added to Sec. 10.100(b)(3)

to indicate that any COP granted to an employee after a claim is

withdrawn must be charged to sick leave, annual leave or leave without

pay as chosen by the employee. This suggestion has been adopted with

respect to annual or sick leave, and the last part of the sentence has

been reworded in accordance with Sec. 10.223, which says that COP paid

in error may be considered an overpayment of pay consistent with 5

U.S.C. 5584.

One agency asked about the implications of withdrawal of cases

which were closed ``short form'', on the basis that OWCP does not

formally ``determine eligibility for benefits'' in these cases. While

no case-specific determination is made in these cases, eligibility has

been established using pre-determined criteria, and the program does

not believe that the proposed language compromises the ability to

withdraw a case which is closed ``short form''. Should this happen, any

monies paid for medical care would be declared an overpayment, which

would be handled according to the usual procedures.

Section 10.101 (b) and (c)

A labor organization stated that, because latent conditions may

result from traumatic injuries, the discussion of timeliness with

respect to latent conditions should not appear solely in the paragraph

dealing with occupational disease. The point is well taken, and the

language of paragraph (c) is being added to Sec. 10.100 as new

paragraph (c). The organization also favors removing the word

``injurious'' from the first sentence of paragraph (b). As the concept

of ``injury'' is integral to workers'

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compensation claims, OWCP believes that the use of this word is

appropriate.

Section 10.102

A labor organization suggested that the heading be rephrased to

include only compensable injuries. When a Form CA-7 is filed, OWCP has

not necessarily determined the compensability of the claim. The

suggested change would therefore be unnecessarily restrictive and

confusing.

Section 10.102(a)

One agency suggested that this section be amended to include a

statement that Form CA-7 is not needed during the initial period of

disability, which is covered by COP. The first sentence is being

modified to clarify this point.

A labor organization states that the requirement to submit Form CA-

7 no more than 14 days after pay stops suggests a legal time limit

which a reader might confuse with the time limits specified by the FECA

for making claim for compensation, which are described in

Sec. 10.100(b). Section 10.101(a) is exclusively concerned with the

mechanics of filing a particular form, and makes no reference to time

limitations under the FECA. OWCP does not believe that readers will be

misled by the wording of this section when it is read in context.

Section 10.102(b)(3)

One agency asked for clarification as to whether the medical

evidence should be submitted to the employer or to OWCP. As OWCP is the

proper recipient, this paragraph has been changed to so state. The

agency also stated that the employee should be required to provide the

medical evidence to the employer. OWCP strenuously disagrees, as it is

the adjudicator of claims for compensation and employers do not have a

global need for medical reports supporting such payments. The agency

may, however, obtain copies of such medical evidence directly from

OWCP. Therefore, this change has not been made.

Section 10.103

One agency proposed that Form CA-7 always be required to file

claims for schedule awards, as they are tracked for timely processing

and letters are not, and a request for a schedule award conveyed in a

letter might be overlooked. While this suggestion has merit, it does

not take into account that schedule awards are initiated by claims

personnel as well as by claimants, or that a schedule award may be

claimed whether or not the employee is receiving compensation for

disability. Given the variety of ways in which a claim for a schedule

award may originate, OWCP does not think it is prudent to restrict the

method of filing the claim to Form CA-7.

One employee organization noted that the phrase ``compensated

according to the schedule'' is redundant. The phrase is being removed

and the word ``such'' is being added before ``impairment'' to ensure

that the meaning of the paragraph is clear.

Section 10.104

A commenter objected to the concept of recurrences. Removal of this

concept would require a change to the FECA itself.

Section 10.104(a)

An agency desired clarification of whether an employee must both

lose time from work and incur a wage loss for the submittal of a Form

CA-2a to be necessary. This in fact is the case, and no change is made

to this paragraph.

Another agency noted that this section addresses only recurrences

of disability, and does not consider recurrences of medical conditions

(although Form CA-2a is designed to claim both). This agency proposed

adding a phrase to the end of the first sentence to address recurrences

of medical conditions, and this change has been made.

Three agencies and a labor organization noted a contradiction

between a statement in this section and a statement in Sec. 10.207(a),

with respect to whether a Form CA-2a, Notice of Recurrence, must be

filed during the COP period. One agency noted that submittal of the

form is a workload item both for the employer and for OWCP, while

another agency noted OWCP's comment in the Preamble to the Proposed

Rule that it is difficult for OWCP to intervene in cases when it does

not know that time loss is occurring. The statement in Sec. 10.207(a)

is correct, and the second sentence of proposed Sec. 10.105(a) (now

Sec. 10.104(a)) has been removed.

A labor organization suggested rewording the sentence addressing

situations where a Form CA-2a need not be filed. From the suggested

text it is clear that three situations (new traumatic injuries, new

occupational diseases, and new events contributing to already-existing

occupational diseases), rather than the two specified in the proposed

rule, need to be addressed in this regard, and the paragraph has been

reworded accordingly.

Section 10.104(b)

An agency asked whether the statement accompanying Form CA-2a is to

be submitted as a separate narrative, since the information listed in

this paragraph is also listed on Form CA-2a. The paragraph is being

reworded so that it refers to the specific requirements stated on Form

CA-2a, just as Sec. 10.104(b)(2) refers to specific requirements stated

on Form CA-2a with reference to the submittal of a medical report.

Section 10.105(a)

A labor organization suggested that this section be reworded to

refer to the claimant as the ``survivor claimant'' throughout. As the

referent changes from ``survivor'' to ``claimant'' in the middle of the

paragraph, different wording would clearly be desirable. Therefore,

``claimant'' has been changed to ``survivor'' both in this paragraph

and in paragraph (c). The point that SSNs are to be provided for all

survivors on whose behalf benefits are being claimed has been

clarified, though this issue was not raised by the labor organization.

Section 10.105(d)

A labor organization suggested that the first sentence of this

paragraph, which parallels the language of section 8122(c), be expanded

to include occupational diseases, and this change has been made.

However, the meaning of the statutory text has not been expanded as

suggested, by changing ``the same injury'' to ``the same compensable

condition''.

The organization also proposed that this section address the

entitlement of a survivor to the remainder of a schedule award after an

employee dies. That is not the subject of this section, however, and

its inclusion here would not be germane.

The organization also asked what provision of the FECA bars a claim

for disability which is not filed while the employee is alive. In Anna

Palestro (Vincent Palestro), 15 ECAB 241 (1964), the Employees'

Compensation Appeals Board established that an individual must be alive

to claim benefits for disability. The only provision for payments to

carry over from a disability claim after death is found in section

8109.

Section 10.110 (a) and (b)

Nine employing agencies, one employee organization, and one other

commenter objected to the reduction of time for submitting Forms CA-1

and CA-2 from 10 to five days. Many reasons were cited for this

objection.

[[Page 65289]]

Practical concerns included observations that decentralized

operations make it difficult to meet current time standards, much less

tightened ones, and that delivery by the Postal Service can take five

days. Also, injuries occurring on a night shift or weekend cannot

always receive administrative attention until the next day, when the

employee and/or witnesses may not be available; a five-day time frame

may result in incomplete and/or inaccurate submittals of information;

the quality of claims review by employers might suffer; and the

proposed standards would be difficult to enforce.

With respect to traumatic injury cases, it was stated that a five-

day period for submittal would be at variance with the 10-day period

allowed employees to produce prima facie evidence of disability. It was

further stated that, given that OWCP closes most traumatic injury cases

``short form'', and OWCP nurses are not assigned unless and until a

Form CA-7 is submitted, the advantage of a five-day period over a 10-

day period was not evident.

With respect to occupational disease cases, it was stated that 15

days should be allowed for submittal of Forms CA-2 for former

employees, on the basis that it takes more than 10 days to compile even

minimal information for these people. This longer time period would be

consistent with the longer time frames OWCP allows for developing and

adjudicating claims for occupational disease.

Concerns about the effect on employer morale included the

observations that while a reduced time period is a worthy goal, less

than half of claims submitted Government-wide meet the 10-day goal now;

that employers trying to improve their performance in this area would

be subject to criticism for inability to comply with this time limit;

and that reducing the time limit would change employers' focus from the

needs of injured employees to the need to meet the regulatory

requirements.

As a related matter, an employer predicted with respect to

Sec. 10.117 that a five-day submittal requirement would result in more

erroneous controversions, or more controversions after the initial

submittal. This employer juxtaposed the five-day period to the 30-day

period allowed for controversion, but this juxtaposition differs little

from that presented by the current requirement to submit notices of

injury within 10 days. Also, there is a difference between

controverting the case, which can be done quickly, and providing

supporting evidence, which may in fact take more time.

Finally, Sec. 10.110(b) indicates that the employing agency will

``transmit'' the completed form to OWCP (as does Sec. 10.113(c)). The

word ``transmit'' is used specifically to allow for electronic

transmission of forms. It was suggested that a five-day time frame

would be more appropriate when electronic transmission is a reality. It

is this argument which seemed most salient, and given the evolutionary

nature of the program's electronic data processing efforts, the

proposal to reduce the number of days allowed for submittal from 10

working days to five calendar days will be set aside until OWCP has the

capacity to receive the notices in electronic format from all agencies.

At that time OWCP will revisit this issue from the regulatory

standpoint. The 10-day submittal period is very much within the norm by

comparison with workers' compensation programs in the States and the

District of Columbia. Nineteen states also set a 10-day submittal

period, while 19 states set a shorter period and 13 states set a longer

one.

A commenter stated that the employer cannot know if ``the need for

more than two appointments'' as stated in Sec. 10.110(b)(3) will

develop, and suggests a more general rewording. The program has

followed this practice for a number of years, and it has proven to be

quite serviceable. Therefore, OWCP does not believe that a change is

warranted.

Two labor organizations suggested that the employer be required to

furnish the employee with a copy of both sides of Form CA-1 or CA-2

when the employer completes its portion of the form. A phrase to this

effect is being added.

Section 10.111

Concerning paragraph (a), a labor organization suggested that

language be added to explicitly require the employer to advise the

employee of his or her rights under the FECA, as the current

regulations provide at Sec. 10.106(a). Employers are required at

various places in these regulations to provide specific information and

forms to injured workers, and inclusion of a general statement is

superfluous.

Concerning paragraph (b), an agency suggested that the time frame

for submitting Form CA-7 to OWCP remain as stated in current

Sec. 10.106(b), which allows for submittal by the tenth calendar day of

wage loss rather than during the COP period. The proposed regulation

represents long-standing policy in accordance with guidance first

issued by FPM Letter 810-6 in May 1985. OWCP does not believe that this

policy needs to be changed.

Concerning paragraph (c), three agencies objected to the five-day

time frame for submitting Form CA-7. However, this time frame is the

same as that found in the current regulations, and the program is

striving to shorten the time frames for submittal of notices of injury

and claims for compensation. Therefore, OWCP believes that it would be

counterproductive to specify a period greater than the five days

currently allowed for submittal of claim forms.

One employee organization suggested that the time frame be

expressed as calendar days, rather than working days, to be consistent

with Sec. 10.110(a). As the latter section will be changed to read ``10

working days'' (see comments above), the wording in Sec. 10.111(c) will

remain ``working days'' as well.

Section 10.112

Two agencies objected to the five-day time frame for submitting

Form CA-8. As noted in the comments about Sec. 10.111(c) above,

however, this time frame is the same as the one found in the current

regulations, and the program is striving to shorten the time frames for

submittal of claims for compensation. Here, too, the program believes

that it would be counterproductive to specify a period greater than the

five days currently allowed for submittal of claim forms.

As with Sec. 10.111(c), one employee organization suggested that

the time frame be expressed as calendar days, rather than working days,

to be consistent with Sec. 10.110(a). As the latter section will be

changed to read ``10 working days'' (see comments above), the wording

in Sec. 10.112(b) will remain ``working days'' as well.

Section 10.115

Current Sec. 10.104 requires the employee to submit medical

evidence in all cases. One agency stated that this requirement is not

clearly enunciated in the proposed regulations, in spite of specific

references in proposed Secs. 10.210, 10.101, and 10.105, and suggested

a change to proposed Sec. 10.115. The program concurs, and a sentence

is being added to clarify this point.

A commenter recommended that Forms CA-1, CA-2, and CA-2c (perhaps

CA-2a was intended) be combined, and that Forms CA-5 and CA-5b be

combined, and that Forms CA-7, CA-8, and CA-12 be combined. Each of

these forms serves a specific purpose and is accompanied by specific

instructions. Any of the combinations suggested would result in much

longer forms which would be more difficult to

[[Page 65290]]

use and understand, both for employees and employers.

A labor organization objected to the removal of the language found

at current Sec. 10.110(a) concerning the employee's burden of proof,

and suggested that it be restored. Most of the material in the current

rule is covered in proposed Sec. 10.115, but the sentences pertaining

to the belief of the claimant and emergence of a condition during a

period of Federal employment with respect to causal relationship have

been added to proposed Sec. 10.115(e), and the latter part of that

paragraph as proposed has been relettered (f). Also, a statement that

the claimant must establish the five basic requirements of the claim to

meet his or her burden of proof has been added to the introductory

paragraph of this section.

Section 10.117

One agency read this section as applying only to occupational

disease claims, as this is the subject of the section immediately

preceding it, and proposed that Sec. 10.117 be retitled to make clear

that it applies to both traumatic injuries and occupational diseases.

OWCP concurs, and this change has been made.

The same agency proposed a new paragraph providing that ``OWCP will

promptly respond'' to an agency's objection to acceptance of a claim,

and also that the agency and the claimant may review each other's

responses to the agency's objections. Section 10.119 already addresses

OWCP's responsibility to advise all of the parties to the claim when a

claim is contested, and the remainder of this suggestion would add

another layer of review by claimants and agencies. For these reasons

OWCP has not adopted this suggestion.

One labor organization suggested that the last sentence of

paragraph (b) be modified to include withdrawal of a claim. OWCP

concurs with this suggestion and believes that it will address the

issues raised with respect to Secs. 10.100(b)(3), 10.101(a), and

10.105(a) (see the comments above with respect to these sections).

Section 10.118

One employee organization suggested that the language which appears

in current Sec. 10.140 with respect to the non-adversarial nature of

proceedings under the FECA be added to this section. OWCP agrees that

it should appear, but as this language applies to many aspects of

claims processing, it is being added to Sec. 10.0.

Section 10.119

An agency made two comments about delayed controversion which

apparently flowed from the proposal to reduce the number of days

allowed for filing notices of injury and occupational disease from 10

to five days. It asked whether OWCP would provide written explanation

of an acceptance if the agency contested the claim within 30 days of

receiving the notice from the claimant, even if the claim was not

contested on the notice itself. OWCP will in fact provide such written

explanation, and this section has been modified accordingly.

Section 10.121

Two employee organizations suggested that the phrase ``up to'' be

removed, so that employees will always have 30 days to respond to a

request for information. OWCP concurs, and the language of the current

Sec. 10.110(b) regulation is being retained in this regard.

Section 10.127

One employee organization suggested that the word ``should'' in the

second sentence be changed to ``will'', both to ensure that the

employee's representative is properly notified and to be consistent

with the language in the last sentence. This change has been made.

Section 10.200

One agency requested amplification of when an agency can make

preliminary determinations on an employee's entitlement to COP other

than in the situations described in Sec. 10.220 and Sec. 10.221.

Another agency suggested that the proposed language did not make it

clear enough that the employing agency must pay COP, even while

controverting it, except for certain delineated reasons. A labor

organization also suggested clarifying language in this regard.

The policy behind the proposed rule was and remains that there are

no circumstances under which an agency can refuse to pay COP, except

for those listed in Sec. 10.220 and Sec. 10.221. The confusion and

doubt expressed in the comments, however, pointed to a need for

clarification. OWCP found language suggested by an employing agency to

be helpful in this regard and changed Sec. 10.200(b) accordingly.

Moreover, in paragraph (a), the phrase ``workers'' compensation

benefits'' has been changed to ``wage loss benefits'' to make the

meaning more clear. Finally, paragraph (e) lacks the words ``employing

agency's'' before the word ``premises''. This oversight has been

corrected.

Sections 10.205 and 10.207

These sections elicited the most comments with respect to COP (six

and seven, respectively). These sections propose that, to use COP:

Disability must either (1) begin within 30 days after the date of

injury (Sec. 10.205(a)(3)); or (2) recur within 30 days after the first

return to work (Sec. 10.207(c)).

One agency objected to shortening the time frame for commencing COP

after suffering a recurrence of disability, and noted that since a Form

CA-2a was required, OWCP would be put on notice of the recurrence. That

agency also pointed out that neither the current nor the proposed rules

address the situation where an employee returns to work but takes

intermittent COP for medical appointments only, and it suggested that a

new section be added to specifically allow for this. COP is

appropriately used for medical appointments, and while OWCP does not

believe a separate section is needed, a phrase to this effect has been

added to Sec. 10.205(a)(1).

Finally, that agency also suggested that employees should document

these medical visits. Since bills will be submitted to OWCP for any

medical treatment and the dates of treatment will be specified on these

bills, no additional documentation will be required.

Six labor organizations addressed the reduction in the time period

for commencing COP in both Sec. 10.205 and Sec. 10.207. One

organization noted that disability may not begin right away because,

for example, of difficulty in scheduling surgery, and that the

restriction in both sections was contrary to the remedial purpose of

COP. Another noted that complete healing following surgery may take

longer than the 30-day time frame would allow, and suggested that a

special extension to 180 days be allowed where COP is used for medical

appointments only. A third organization challenged OWCP's stated

rationale, noting that agencies do not uniformly submit claim forms in

a timely manner. This organization stated further that early

intervention is valuable in cases involving extensive disability, not

where disability is infrequent, and suggested that the intention was

really to save agencies COP payments.

A fourth organization felt that the change would deprive the

employee of one of the Act's benefits and instead allow agencies to

return employees to work before they were physically able to do so. A

fifth organization expressed deep concern with the proposal, stating

that it failed to recognize that some conditions result in delayed

disability,

[[Page 65291]]

and while it applauded efforts to minimize lost time, it asked that

other methods be used. The fifth organization suggested that the period

be reduced to 60 rather than 30 days. A sixth organization also

registered grave concerns with this change, stating that it ran counter

to the remedial intent of COP and noting that medical treatment may be

delayed beyond 30 days from the date of the injury.

COP is intended to prevent an interruption of income in traumatic

injury cases during the time period it takes for an employee to submit

a claim and for OWCP to adjudicate the claim. While the legislative

history does not specify why a 45-day maximum was chosen, the history,

supported by the plain language of the statute, makes it clear that

Congress was concerned about interruption of an employee's salary while

a claim was filed and adjudicated, but had no intention of providing an

entitlement to the entire 45-day period if wage-loss benefits could be

paid instead. Section 8118(b)(3) further provides that COP is to be

paid ``under accounting procedures and such other regulations as the

Secretary may require,'' giving the Secretary broad authority to

establish the ground rules under which COP will be paid.

However, to mitigate any problems which a 30-day maximum time frame

for beginning to use COP might cause, the time frame in the final rule

has been changed to 45 days. Despite this change, OWCP believes that it

will still be able to fulfill its goal of returning employees to work

at the earliest possible time. As noted in the Preamble to the Proposed

Rule, it is best if OWCP learns of lost-time cases as soon as possible

so that early intervention can facilitate an early return to work.

Continued disability-related absences, even intermittent absences, can

prevent OWCP from intervening during this crucial time. OWCP recognizes

that this need must be balanced against the need to ensure an income

stream. The two are not mutually exclusive, however, and the efforts of

the agencies and OWCP to shorten the time period required to process

claims and pay benefits will prevent interruptions to the income

stream.

One example put forth in favor of retaining the existing period for

payment of COP when disability does not begin right after the date of

injury is that of a claimant whose surgery cannot be scheduled within

30 days. If the claimant continues to work, lost time does not begin

until the date of surgery, and if this date is more than 30 days past

the date of injury, the individual will have no entitlement to COP and

no income.

In this scenario, however, the income stream would not be

interrupted. OWCP would note that surgery is pending, and the

anticipated lost time would allow the agency and OWCP to process claim

forms for wage-loss benefits so that the income stream would not be

interrupted. Indeed, this is the very kind of scenario in which COP

would not be appropriate, since such lost time is anticipated well in

advance and the agency and OWCP have time to process the claim to

provide the wage-loss benefits under the Act.

Finally, several commenters noted that employees in some cases lose

time intermittently just to attend medical appointments, and cited this

kind of time loss as a reason for not reducing the period for

commenting use of COP. OWCP does not disagree with this argument, but

after careful consideration, it concluded that administration of a

provision with different time frames with respect to disability and

medical care would be too complicated, both for employing agencies and

for OWCP itself. Therefore, the time frame for beginning to use COP

will be 45 days in all circumstances.

Three agencies and a labor organization noted a contradiction

between a statement in this section and a statement in Sec. 10.105(a),

with respect to whether a Form CA-2a, Notice of Recurrence, must be

filed during the COP period. As noted in the comments about

Sec. 10.105, the statement in Sec. 10.207(a) is correct.

Section 10.205(a)(2)

An employing agency inquired as to what would constitute ``another

form'' acceptable to OWCP, and whether a letter would suffice. This

language is included so that the regulations reflect OWCP's position

that a Form CA-2, CA-7 or CA-8 (all of which contain words of claim)

fulfills the requirement that notice be given ``in writing'' under the

appropriate circumstances. The word ``form'' does in fact denote an

OWCP-approved claim form, and a letter would not serve the purpose

described herein.

Section 10.206

One agency expressed concern with the retroactive election of COP

in those cases OWCP terms ``short form closure'' cases, that is, cases

where there is no wage loss claim and the medical bills do not exceed a

certain dollar amount. In these cases, no formal acceptance is issued.

The agency points out that in such cases, the wording in Sec. 10.206(a)

should be revised to reflect this by adding the parenthetical clause

``(if written approval is issued).'' This suggestion is accepted and

the language has been changed accordingly.

Section 10.210

An employing agency argued that employees should submit medical

reports to employing agencies as well as to OWCP. This issue is

addressed in the comments about Sec. 10.331(b). Several commenters

pointed out a typographical error (``employer'' instead of

``employee''), which is corrected in the final rule.

A labor organization objected to changing the period within which

medical evidence supporting disability must be submitted to the

employer from 10 working days to 10 calendar days. This change was made

because it is important to obtain this evidence as soon as possible.

Using working days, which do not include Saturdays, Sundays and Federal

government holidays, can easily result in a period of 15 or more

calendar days elapsing before a medical report is received, a period

during which the employee continues to be absent from work. OWCP has

discussed the importance of early intervention, and the earlier the

submittal, the better. This section is entitled ``Employee's

Responsibilities'' to emphasize that return-to-work efforts are

required by employees as well as employers and OWCP. Certainly the

employee, who has chosen his or her physician, has the most leverage

over the physician at this crucial time and can best ensure that such

medical evidence is submitted. The new language requiring the report to

contain a statement as to when the employee can return to work is

consistent with and essential to this goal.

Section 10.211

One labor organization suggested wording changes to subsection (c)

that would have the effect of eliminating the distinction between

controverting a claim for COP and other objections an employer might

raise to a claim under the FECA. Unlike a general objection that would

have no immediate consequences for a claimant pending action by OWCP,

controverting a claim for COP is a preliminary determination by an

employer that stops a claimant's regular pay. Therefore, OWCP wants to

retain the distinctive nature of this particular type of objection, and

the suggested changes have not been adopted.

In subsection (d), several commenters asked what the phrase ``other

forms approved by the Secretary'' meant. This phrase was added to

ensure that the

[[Page 65292]]

regulations reflected OWCP's position that a Form CA-2, CA-7 or CA-8

(all of which contain words of claim) will fulfill the requirement that

notice be given ``in writing'' under the appropriate circumstances. In

addition, one labor organization suggested changing ``return'' to

``transmit'', and this change has been made. Finally, three agencies

objected to the requirement that Form CA-1 be submitted to OWCP within

five calendar days. For the reasons stated in the response to the

comments received to Sec. 10.110, OWCP has decided to keep the time

frame of 10 working days, and the language of paragraph (d) has been

changed accordingly.

Section 10.215

One agency noted with respect to paragraph (d) that there appeared

to be a change in how COP days are calculated in this section as

proposed. The section states that days off are counted toward COP if

COP was used in the days immediately before and after the days off. The

comment pointed to an inadvertent modification in how days are

calculated and the final version has been changed to read that if COP

is used on the day before or the day after days off and disability is

supported by medical evidence, the days off are counted toward COP.

The same agency suggested language on calculating COP days for

part-time or intermittent employees, and that language has been

adopted. However, this agency's suggestion that OWCP add a new

paragraph to Sec. 10.215 to address the circumstances under which COP

may be used for obtaining medical treatment would both limit the scope

of paragraph (c) and unnecessarily restrict OWCP's ability to monitor

the provision of medical treatment, and therefore the requested

addition has not been made.

Sections 10.216 and 10.217

Two Federal agencies noted that the inclusion of differential and/

or Sunday premium pay in the pay rate for COP was contrary to

provisions in two appropriation bills passed by Congress, Pub. L. 104-

208, section 630, 110 Stat. 3009, 3362 (1996) and Pub. L. 105-61,

section 636, 111 Stat. 1272, 1316 (1997), which prohibited Federal

agencies funded by those bills from paying differential and/or Sunday

premium pay to their employees unless they actually performed work

during the time period relevant to such pay. These agencies therefore

suggested that both Secs. 10.216(a)(1) and 10.217 be changed to reflect

that these particular increments of pay are not to be included in the

pay rate for COP.

Ever since Congress amended the FECA in 1974 to provide for COP,

OWCP has directed agencies to include premium, night or shift

differential, Sunday or holiday pay, and other extra pay in their

calculations of the pay rate for COP. However, in several recent

appropriation bills, Congress has included language similar to the

prohibitions cited by the two Federal agencies, without actually

amending the underlying statutory authority for such increments of pay

or overturning court decisions construing such statutory authority.

Therefore, while it is clear in the absence of such appropriations

language that it would still be proper for OWCP to require the

inclusion of these two increments of pay in the pay rate for COP, it is

also clear that the statutory authority for the payment of such

increments is not derived from the FECA itself, nor are these

increments currently being paid in a consistent manner throughout the

entire Federal workforce due to the varied scope of agency legal

authority to spend appropriated funds. In addition, the agencies funded

by the appropriation bills in question would again be required to

include these increments of pay in the pay rate for COP should the

prohibition on their payment not be included in future appropriation

bills.

From an administrative standpoint, there is little justification

for OWCP involvement in payroll functions among the various agencies,

only some of which are affected by the appropriation bills noted above,

since COP constitutes a continuation of an employee's ``pay'' that is

calculated and paid by his or her agency rather than a form of

``compensation'' that is calculated and paid by OWCP. Accordingly,

Secs. 10.216(a)(1) and 10.217 are revised to reflect these

circumstances.

One of the same two Federal agencies also suggested adding language

to Sec. 10.216(a) to emphasize that ``weekly pay'' is based on an

average of the employee's weekly pay over the prior 52 weeks. However,

Sec. 10.216(a) already explains this very point, and thus the suggested

addition is not made. One labor organization urged that Sec. 10.216

include a reference to paid leave in determining how COP is calculated,

for fear that agencies would exclude it from their calculations.

Certainly, paid leave must be included in the calculation of COP. While

neither OWCP's regulations issued since 1975 nor the Federal (FECA)

Procedure Manual make reference to paid leave, there is no indication

that this absence has caused the feared exclusions to occur. Therefore,

OWCP sees no need to add the requested reference.

Sections 10.220, 10.221 and 10.222

One labor organization recommended changes to Sec. 10.221 regarding

the requirement that an agency controvert a claim for COP before it

stops an employee's pay. However, the suggested changes, which involve

retention of language in current Sec. 10.203(b), would not maintain the

desired distinction between controverting and otherwise objecting to a

claim, and they have therefore not been incorporated.

A number of labor organizations noted that the existing rules

direct agencies to retroactively reinstate COP which it had stopped

because medical evidence showing disability had not been received

within 10 days, when that medical report is received. The language has

been added to Sec. 10.222(a)(1).

One agency asked about the type of medical evidence necessary to

support the continued payment of COP and requested further guidance

from OWCP. The evaluation of medical evidence by the employing agency

is limited to a determination of whether, on its face, the medical

report supports disability. Agencies do not properly consider medical

rationale. Given this limited involvement, further guidance of the type

requested is seen as unnecessary.

One labor organization objected to the provision in

Sec. 10.222(a)(1) that would allow an agency to stop paying COP if the

claimant fails to submit the required medical evidence within 10

calendar days and requested that the time frame of 10 working days be

retained. However, as noted previously in the response to this labor

organization's objection to the equivalent language in Sec. 10.210(b),

the change to calendar days from working days was made because it is

important to obtain this evidence as soon as possible. Therefore, for

the same reasons that supported maintaining the equivalent change in

Sec. 10.210(b), the requested change in Sec. 10.222(a)(1) has not been

made.

Another labor organization objected to the change allowing the

termination of COP when a personnel action--initiated before the injury

and including a removal action--becomes final following the injury and

during the COP period. No reason was offered for the objection,

however, and the program believes that this clarification is necessary

to ensure that employees who would otherwise not have received salary

do not receive it merely because of the COP provisions. This change was

supported by one agency.

Yet another labor organization, along with an agency, suggested

that the

[[Page 65293]]

proposed rules clarify the employing agencies' authority to terminate

COP. An agency noted that Sec. 10.222(a)(3), regarding refusal of a

written offer of suitable work, appears to change the current authority

for an agency to stop COP. Such a change was not intended, and so new

language has been added to this section which makes it clear that an

agency can stop COP when an employee refuses a written offer of

suitable work, but that OWCP has final authority to determine whether

the termination was appropriate and can order retroactive restoration

of COP benefits improperly terminated.

The labor organization noted that the language preventing an agency

from terminating COP except under the circumstances listed in existing

Sec. 10.203 and Sec. 10.204 does not appear in the proposed rules. The

reasons for termination have remained essentially the same (except for

termination for personnel actions initiated before the injury which

become final after the injury). While the language in Sec. 10.220 and

Sec. 10.222 is phrased to limit authority of the agency not to pay

(Sec. 10.220) or to stop paying (Sec. 10.222) in those circumstances

listed, the comments show that the program's intent was not clear.

Therefore, additional language has been added to Sec. 10.220 and

Sec. 10.222(c), clarifying that the agency cannot stop COP to which the

employee is otherwise entitled except for the reasons set out in these

two sections, or unless OWCP directs COP to stop, or unless the

individual has returned to work.

Sections 10.223

Two agencies noted that this section failed to address disruptions

by the employee's representative. That language has been added. A labor

organization noted that the ``required medical examination'' is one

required by OWCP and the regulations should so state, and this change

has been made. The organization also suggested making clear that the

suspension is subject to all appeal and review rights. This language is

unnecessary, since all adverse decisions by OWCP are subject to the

review and appeal processes set forth under the Act.

Section 10.300(b)

While agreeing with the proposed language that Form CA-16 need not

be issued more than a week after the injury occurs, one agency

suggested that this section be changed to state that the form need not

be issued if the employee reports the injury more than one week after

its occurrence. The current language covers this situation as well as

the situation where an employee reports an injury right away but does

not appear to need medical care for up to a week afterwards. Therefore,

OWCP does not believe that the suggested change is necessary.

Another agency suggested that the time for issuing Form CA-16 be

increased from four to 24 hours, citing distances among supervisors,

injured employees, medical treatment facilities, and those authorized

to sign Forms CA-16. The four-hour time frame is the same as currently

provided, and as noted in the second sentence of this paragraph, verbal

authorization may be given if necessary. In view of the excellent

telephone and facsimile communications generally available in the

United States, OWCP sees no reason to increase this time frame.

A commenter also objected to the time frame stated, claiming that

reaching OWCP may take a week, that care cannot be authorized unless

the specific procedures are known ahead of time, and that employees

injured at night and on weekends are denied equal access to care. These

arguments are not persuasive, especially as the proposed rule is

unchanged from the existing rule, and the commenter's suggestion that

the employer authorize one visit for medical care until OWCP can

approve further care is impractical.

Three labor organizations argued that the proposed rule limiting

issuance of Form CA-16 to one week following the injury is inconsistent

with the statutory 30-day requirement for claiming COP. Still another

labor organization stated that changing to a one-week limit from what

it considered to be the current time frame of six months from the date

of injury to be ``radical and inappropriate''. OWCP does not agree. The

purpose of Form CA-16 is to authorize urgently-needed medical care in

connection with a work-related traumatic injury, not to provide blanket

medical coverage. An employee whose need for medical care develops so

gradually that it is not apparent until a week after the injury

occurred cannot accurately be said to require urgent medical care. The

time requirements for claiming COP have no relation to those governing

issuance of Form CA-16.

Section 10.300(d)

Three employee organizations suggested that the employer be

specifically instructed to ``advise the employee of the right to

initial choice of physician'', parallel to the language of proposed

Sec. 10.211(b) with respect to the employee's right to COP. This change

has been made.

Another employee organization suggested that this paragraph allow

for initial choice of medical facility as well as physician. Inasmuch

as a report from a physician is needed to support a claim for

compensation, the inclusion of the term ``medical facility'' is

irrelevant at best, and might prove misleading as well.

A commenter stated that this section does not indicate how OWCP

will notify physicians that they have been excluded. This information

is provided in subpart I, which is referenced in this paragraph.

Section 10.303

Two agencies expressed their appreciation for the clear statement

with respect to issuing Forms CA-16 for simple workplace exposures to

hazardous substances when injuries have not occurred.

Section 10.310

Two agencies stated their support for the changes in this section

with respect to appliances, supplies, and generic equivalents for

prescribed medications, indicating their belief that these measures

would assist in cost containment (and, in the view of one of them,

sound fiscal management). Another agency stated its approval of the

program's cost containment efforts in general. Another commenter, on

the other hand, questioned how OWCP would apply the test of cost-

effectiveness.

A commenter also questioned the statement that OWCP ``will not

approve an elaborate appliance or service where a more basic one is

suitable'', positing that OWCP will oppose use of higher-cost

diagnostic tests (for instance MRIs, in comparison with x-rays) in a

misguided attempt to cut costs. This conclusion is incorrect. The

statement is intended to address requests for special equipment, such

as exercise bicycles, and special services, such as health club

memberships, when prescribed to treat the effects of an injury. OWCP

will not pay for a top-of-the-line appliance or service where a less

expensive equivalent exists. However, in matters of diagnosis and

treatment, OWCP does not and will not attempt to second-guess

physicians.

Section 10.310(b)

The last sentence in this paragraph gives OWCP the authority to

require the use of generic equivalents where available. An agency

suggested that OWCP require the use of generic equivalents where

available for all prescribed medications, unless the employee shows

good cause for not

[[Page 65294]]

doing so. Another commenter, on the other hand, stated that OWCP should

not be allowed to require the use of generic equivalents if they do not

represent the ``SOC'' (presumably ``standard of care''), since doing so

``sets MDs up for malpractice''.

As the purpose of adding this provision to the regulations is to

provide OWCP with the flexibility to implement such a policy in the

future, the first comment is not adopted. With respect to the second

comment, use of generic equivalents is a commonly accepted practice in

many health plans and medical benefit programs, and the program has no

intent to subvert generally accepted standards of care. The statement

will therefore remain unchanged.

Section 10.311

With respect to Sec. 10.311(a), two agencies stated their

disagreement with what they considered the expansion of chiropractic

services and suggested that the first sentence be reworded to more

closely follow the statutory language. However, the proposed change is

virtually identical to the last sentence of section 8101(2), and as

there is no intent to expand the meaning of the statute, and the costs

involved are consistent with the statute and with OWCP's past practice,

OWCP does not believe that the language of this section needs to be

modified.

Another commenter objected to Secs. 10.311(a) and (b) on the basis

that chiropractors cannot treat subluxations. Such treatment is

authorized at section 8101(2).

Section 10.313

An agency asked that this section more clearly define when

preventive treatment may be authorized and when it may not,

particularly in the context that a work-related injury must be present

before treatment may be authorized. Paragraphs (b) and (d) already

refer to specific injuries, and paragraph (a) addresses complications

of agency-sponsored preventive measures, which are considered to be

injuries. Paragraph (c) refers to conversion of tuberculin reaction

after exposure to tuberculosis in the performance of duty. Since

tuberculosis is transmitted invisibly, through the air, a specific

injury is inferred from the conversion. For these reasons, OWCP does

not believe that changes to this paragraph are necessary.

Section 10.314

Two employee organizations objected to the change in method of

payment to attendants as represented by this section, given the

language of section 8111(a). The Preamble to the Proposed Rule (62 FR

67123-67124) sets forth in detail OWCP's reasons for making this

change, and OWCP continues to believe that this exercise of the

Director's discretion will be beneficial in several ways. As noted in

the Preamble, employees currently receiving an attendant's allowance

under section 8111(a) will not be affected by this change.

Two agencies stated that they support the changes noted in this

section, one indicating its belief that this provision will help OWCP

to monitor and control medical costs in the future. The other suggested

that this section address the desired billing method, either

specifically or by cross-reference to subpart I. OWCP concurs, and a

cross-reference to Sec. 10.801 has been added.

The second agency also suggested that the new provision apply to

all cases, and that attendants' allowances currently being paid under

section 8111(a) be discontinued. In this agency's view, such a change

would reduce workload and avoid any confusion which might result from

having two methods of payment. Given the relatively small number of

cases affected by this provision, OWCP does not believe that the

benefits which would result from changing the method of payment to

claimants now receiving augmented compensation for attendants would

outweigh the disruption which might result.

Section 10.320

An agency questioned whether an employee's spouse may attend a

second opinion examination, and if not, asked that this be stated in

the regulation (and in the letters notifying claimants of

appointments). The proposed paragraph states that ``the employee is not

entitled to have anyone else present at the examination * * *.'' OWCP

believes that the word ``anyone'' is inclusive enough to convey the

intended meaning of this sentence, and that clarification is

unnecessary.

A labor organization commented that it is unlikely that personal

physicians will participate in second opinion examinations, due to

other commitments, and that is unfair for an employee to be ``be denied

an opportunity to have a second person present during the

examination.'' Another organization expressed similar concerns and

stated that the language of Sec. 10.323 is sufficient to address any

improper behavior.

Section 8123(a) provides that ``The employee may have a physician

designated and paid by him present to participate in the examination.''

The FECA says nothing about other individuals participating in the

examination. Of course, it is perfectly permissible for any individual

to accompany the employee to the examination and remain nearby, in the

waiting room, if the employee so desires.

On another subject covered by this section, an employee

organization argued that the provision for sending a case file for

second opinion evaluation without actual examination of the claimant is

counter to the clear language of section 8123, and should therefore be

removed. Evaluation of the case file without examination of the

claimant can assist claims staff in resolving such issues as causal

relationship in occupational disease cases, or making retroactive

determination of whether surgery should be authorized. Furthermore, in

Melvina Jackson, 38 ECAB 443 (1987), the ECAB authoritatively held that

this section of the FECA is not limited to physical examinations of a

claimant and specifically construed section 8123(a) as providing for

evaluations of the evidence in a claimant's record without an actual

physical examination. Therefore, the suggested deletion is not made.

Section 10.321

One agency asked that a statement be added to this section

clarifying that not every difference in medical opinion results in a

referee examination. The requested clarification is consistent with

decisions of both the ECAB (Andrea Kay Roberts, Docket No. 95-1839

(October 22, 1997)) and federal courts that have addressed this point

(McDougal-Saddler v. Herman, No.Civ.A. 97-1908 (E.D.Pa. December 24,

1997), and Chaklos v. Reich, et al., No. Civ.A. 95-1763 (W.D.Pa. August

25, 1997)). OWCP agrees that clarifying this section would be useful

and therefore a new paragraph (a) has been added. Also, the current

text has been relettered paragraph (b), and the title of this section

has been slightly revised to more accurately reflect its subject

matter.

One labor organization argued that the provision for sending a case

file for referee evaluation without actual examination of the claimant

is counter to the clear language of section 8123, and should therefore

be removed. However, in Melvina Jackson, 38 ECAB 443 (1987), the ECAB

noted that it had never held that an actual physical examination of a

claimant was necessary to resolve disagreements using the medical

referee provisions of

[[Page 65295]]

section 8123(a). Therefore, the suggested deletion is not made.

In paragraph (b), the reference to section 8123(a) has been

replaced with a reference to Sec. 10.502.

Section 10.322

An agency asked that a statement be added to this paragraph noting

that the costs of second opinion and referee examinations are

eventually charged back to employers. However, the costs associated

with medical examinations are no different from other benefits under

the FECA, as all expenses are charged back to employers. The mechanism

for doing so is described in the FECA at section 8147. In line with

OWCP's attempt to avoid repeating statutory provisions in the

regulations wherever possible, the program does not believe that

addition of language about chargeback of costs associated with medical

examinations is necessary or desirable.

Section 10.323

An agency suggested that the title of this section be revised to

include the word ``penalties'', and this change has been made.

Section 10.324

A labor organization argued for inclusion of language which would

bar the results of medical examinations requested by the employer from

being used to reduce or terminate OWCP benefits, unless those results

were corroborated by medical examinations directed by OWCP. The

program's procedures have stated for some time that such examinations

will not be used in this way, and OWCP is not aware of any problems

which have arisen with respect to this policy. Therefore, the program

does not believe that it is necessary to address it by regulation.

Section 10.330

See the discussion above concerning Sec. 10.115. This section is

being modified to make clear that in all cases the employee is

responsible for submitting medical evidence, or arranging for its

submittal.

A commenter suggested that medical reports require the disclosure

of previous claims for the same condition, pre-existing conditions of

the same part of the body, and hobbies or other occupations which may

contribute to the condition claimed. OWCP already has the capacity to

identify previous Federal workers' compensation claims for injuries to

the same part of the body. Where necessary, OWCP requests information

about pre-existing conditions, hobbies and other jobs as part of

evaluating claims for disability.

The same commenter stated that examining physicians should be

required to state whether the condition found is causally related to

employment. In fact, such a requirement already exists. The commenter

also suggested that OWCP physicians review all claims to ensure that

causal relationship is properly established. OWCP will shortly begin

using automated decision tables, which will compare the condition

claimed on the bill with the condition accepted in order to identify

problematical acceptances.

Section 10.331(b)

An agency suggested that the employee or treating physician submit

copies of medical reports to the employer, stating that while Form CA-

17 is useful, physicians do not always complete it. The agency also

suggested that OWCP should be required to submit to the employer a copy

of any medical report showing that the employee can return to work in

some capacity.

Another agency characterized the requirement that reports be sent

directly to OWCP as ``directing employees and medical providers to

circumvent the employing agencies'' and claimed that this represents a

detrimental change, although current Sec. 10.410(b) also requires

submittal of reports to OWCP. This agency also stated that this policy

will hinder agencies from helping claimants with requests for surgery

and claims for wage loss and from becoming aware of new medical

conditions which need to be considered in making offers of

reemployment.

A third agency stated that it has difficulty managing cases without

immediate access to medical reports, which it cannot always obtain

right away from OWCP. Another commenter makes this argument as well.

This set of comments speaks to the need for careful information-

gathering and for close coordination among employers, employees and

OWCP. They also speak to the rights and responsibilities of all parties

in the claims process. In its proposed regulations, OWCP has tried to

strike a balance among these sometimes competing interests. Employers

usually need copies of medical reports primarily to identify jobs to

which their injured employees may return, and Form CA-17 is designed

explicitly for this purpose. That medical providers do not always

complete forms and reports as requested is an experience shared by

OWCP, and the program does not believe that adding another requirement

for information submittal will truly address this issue, particularly

when the medical reports may not accurately describe work limitations.

With respect to managing claims and the need for up-to-date

information when offering reemployment, one of the reasons that OWCP

uses the services of registered nurses is to facilitate coordination

and exchange of medical information among claimants, employers, and

medical providers. When a claimant can return to work, whether to full

or light duty, full or part time, it has been OWCP's experience that

the nurses are able to provide information quickly and accurately so

that reemployment can take place as soon as possible.

For all of these reasons the program does not believe that a change

in this section is warranted. The agency may, however, obtain copies of

such medical evidence directly from OWCP.

Another issue raised by several employing agencies is whether Form

CA-17 may be used only for traumatic injuries. One agency notes that it

might well be used to determine work limitations in certain kinds of

occupational illness cases. OWCP concurs, and the word ``traumatic''

has been removed from this paragraph.

Section 10.333

One employee organization suggested that this section state that

medical reports in support of claims for schedule awards must be based

on the American Medical Administration's (actually, American Medical

Association's) Guides to the Evaluation of Permanent Impairment. OWCP

concurs, and this reference has been added to this section.

Section 10.336

A commenter stated that the time frames for submittal of bills are

too long and suggested that OWCP require submittal within 30 days of

the service date. However, the time frames set forth in the regulations

are consistent with the practice of the insurance industry in general,

and OWCP sees no reason to change them. The commenter also suggested

that OWCP be required to process bills within 60 days of receipt. OWCP

adheres to internal standards which require that 90 percent of medical

payments be made within 28 days of receipt and that 95 percent be made

within 60 days of receipt. For this reason, OWCP does not see the

benefit of including specific time periods in the regulations.

Requiring an ``attached medical report'', as is also suggested, is

impractical in an automated bill processing environment.

[[Page 65296]]

Section 10.337

An employer and another commenter objected to the provision for

reimbursement on the basis that it is unfair to both the agency, which

will have to pay the chargeback bill, and to providers who adhere to

the fee schedule. While OWCP does not consistently and/or routinely

reimburse employees for these excess charges, paragraphs (b) and (c)

have been revised so that the employee will be responsible for

contacting the provider to obtain refund or credit. If the provider

does not comply with this request, the claimant will need to submit

documentation of the attempt to OWCP. OWCP may in its discretion make

up the difference to the claimant, after reviewing the facts and

circumstances of the case. Once such a payment is made, the employee

would be aware of the monetary costs of continuing to seek treatment

with such a provider, and OWCP might consider not reimbursing the

employee for any subsequent excess charges, thereby minimizing the

impact of Sec. 10.337 on an agency's chargeback costs. (Section 10.802

has been modified consistent with these changes.)

Two labor organizations suggested that the language of Sec. 10.813

be repeated for claimants in this section. Sections 10.337 and 10.813

are intended to be parallel in structure, and OWCP does not believe

that repeating Sec. 10.813 would serve any useful purpose.

Section 10.401

With respect to the period of disability which must elapse before

the claimant may be compensated for the first three days of wage loss,

an agency asked that the method of counting the days be clarified. The

word ``calendar'' is being inserted to make the meaning clear. The

agency also inquired as to whether the 14 days may be intermittent, and

in fact they may.

One agency suggested a cross-reference to Sec. 10.6. A specific

reference to section 8110(a) would probably be more useful, and one is

therefore being added.

Section 10.403(a)

One agency commented, apparently with respect to this section, that

determinations of wage-earning capacity should be tied to the minimum

wage rate. However, the FECA has no provision for establishing such a

link.

Two labor organizations argued that, consistent with ECAB decisions

in this area, any position selected as representing an employee's wage-

earning capacity must be actually available to the employee within his

or her commuting area. However, this is an incorrect interpretation of

the ECAB's rulings, which have consistently held that OWCP only needs

to find that a position is being performed in sufficient numbers in the

area in which the employee lives so as to be considered reasonably

available before it can determine that the job represents the

employee's wage-earning capacity [e.g., Kenneth H. Cummings, Sr., 28

ECAB 284 (1977); James B. Stewart, 32 ECAB 36 (1980)]. Accordingly,

since there is no requirement that the selected position actually be

available to the employee, the suggested change is not made.

Section 10.404

Two agencies objected to the inclusion of pre-existing impairments

in payments made under the schedule award provisions of the FECA. These

agencies argued that employees who are compensated for the full extent

of their impairments actually receive benefits for non-occupational

impairment.

It is a well-settled principle of workers' compensation law that

each employee is hired ``as is''. The employee is a whole person, with

various strengths and weaknesses, some of which pre-exist employment

and some which develop concurrently with it. Apart from the practical

difficulties which the commenting agencies admit would result from any

attempt to differentiate work-related from non-work-related impairment

to a schedule member, such an attempt would violate the remedial nature

and spirit of the FECA.

One agency suggested re-writing this section to reflect a means

test for dependency. The FECA contains no provision for such a test

(see the comments about Sec. 10.6).

A labor organization suggested restoring text concerning payment

for schedule impairment which appears in current Sec. 10.304(c). This

material already appears in section 8107(a), and OWCP sees no reason to

repeat it here.

Another commenter objected to the program's use of the AMA's Guides

to the Evaluation of Permanent Impairment for determining schedule

awards under the FECA, indicating that it focuses on the extent of the

initial injury or illness, not the degree of recovery. This, however,

is not true. The AMA states on page 1/1 of the fourth edition that

``The Guides defines `permanent impairment' as one that has become

static or stabilized during a period of time sufficient to allow

optimal tissue repair, and one that is unlikely to change in spite of

further medical or surgical therapy.'' OWCP does not agree with the

commenter's suggestion that the program use another publication for

determining schedule awards.

The commenter also questioned whether medical benefits are payable

in cases where the claimant has reached maximum medical improvement.

Such expenses are in fact payable as long as treatment is found to be

necessary and reasonable.

Section 10.405

An agency suggested addition of a means test for dependents to this

section and to Sec. 10.6. The FECA contains no basis for such a

measure.

Section 10.406

A commenter suggested use of different percentages than those

provided by law for payment of compensation for disability. Such

modifications would require a change to the FECA itself.

Section 10.410

One labor organization requested that OWCP restore the partial

description of the compensation payable in death cases that was set out

at Sec. 10.306 of the 1987 regulations (the organization was apparently

unaware that the FECA was amended in 1990 to change the age of

remarriage noted in section 8133(b)(1) to 55). Since the proposed rule

was published in the Federal Register on December 23, 1997, the ECAB

issued a decision construing section 8133(a)(5) of the FECA for the

first time. That decision is Clyde Stevenson (Donna R. Stevenson),

Docket No. 95-3016 (issued February 4, 1998). In light of the

authoritative construction of this section of the FECA provided by the

ECAB in Stevenson, and to address the concerns of the labor

organization, the heading and text of Sec. 10.410 are revised

consistent with the request.

Section 10.417

A commenter suggested that this section should state whether a

handicapped child continues to be entitled to benefits if the employee

dies. If this happens, payments end unless death benefits are awarded.

No change is necessary as a result of this comment.

Section 10.420

In all four subsections, the statutory reference has been changed

to section 8146a, not 8146(a).

Section 10.421

Two Federal agencies recommended that the election provision in

Sec. 10.421(a) be modified to make it either partially or fully

irrevocable, citing the Office of

[[Page 65297]]

Personnel Management's (OPM's) rule that elections of benefits in death

cases are irrevocable, while another commenter recommended that the

provision be removed entirely. OPM and OWCP have adopted their

respective policies for particular reasons, and neither agency is

unaware of the other's position.

While it is understandable that agencies would desire that OPM and

OWCP policy be the same, the changes proposed by these commenters would

not be consistent with the settled construction given to section 8116

of the FECA by the ECAB in such leading cases as Adeline N. Etzel

(Bernard E. Etzel), 21 ECAB 151 (1969); Charles W. Akers, 24 ECAB 316

(1973); Louis Teplitsky, 29 ECAB 826 (1978); and Gary J. Bartolucci, 34

ECAB 1569 (1983). Therefore, the suggested modifications are not

adopted.

The latter commenter recommended that both subsections (a) and (d)

of Sec. 10.421 be modified to automatically end compensation payments

at retirement age (except for permanently totally disabled

individuals), at which time such beneficiaries would ``revert'' to

their respective retirement systems. The commenter also recommended

that the dual benefit restrictions set out in Sec. 10.421(a) also apply

to the military payments described in Sec. 10.421(b). Absent an act of

Congress amending section 8116, however, such changes cannot be made,

and OWCP is therefore not adopting them.

Finally, the same commenter recommended that the first sentence of

Sec. 10.421(e) be modified to add the requirement that beneficiaries

provide ``information on any other compensation or injury.'' However,

such information would have no effect on a beneficiary's entitlement to

compensation under the provisions of section 8116, and the requested

modification is therefore considered unwarranted.

Section 10.430(a)

One labor organization suggested that the word ``clear'' be added

before ``indication of the period * * *'', and OWCP is making this

change. The organization also suggested that the section specify that

periodic checks are to show any deductions or adjustments affecting the

amount of the payment. OWCP is working on automated enhancements which

will allow this information to be shown, but the capacity to do so is

not yet available.

Sections 10.433, 10.436, and 10.437

Three agencies objected to being held financially accountable,

through the chargeback process, for waivers of overpayments which

resulted from errors made by OWCP. They suggested that when OWCP waives

such an overpayment, the agency should receive a credit to its

chargeback bill in the amount of the overpayment. For two reasons, OWCP

does not concur with this suggestion.

First, the FECA is remedial in nature, and OWCP considers requests

for waiver according to carefully defined procedures which are intended

to protect the interests of both the claimant and the Government. The

granting or withholding of a waiver is not intended to be a punishment

or a reward, but rather the result of an administrative process as

provided by law. Secondly, the FECA contains no provision for crediting

the chargeback with monies reflecting either the commission of errors

or the waiver of overpayments by OWCP.

Section 10.441

A commenter objected to inclusion of overpayment amounts in

agencies' chargeback bills when the claimant is not at fault and the

employer controverted the claim or detected the overpayment. The FECA

contains no provision for crediting the chargeback because of such

actions by the employer. In paragraph (b), the reference to the Debt

Collection Act of 1982 has been replaced with the Federal Claims

Collection Act of 1966 (as amended).

Section 10.500

As noted above, the proposed section has been subdivided into four

new sections (Sec. 10.500 through 10.503) for clarity, and the contents

have been slightly rearranged.

One agency objected to what it believed to be a new criterion for

defining suitable work, namely that it be ``appropriate to the nature

of the employee's usual employment''. This phrase represents a

misreading of the actual text, which is taken from section 8115, as

follows: ``appropriate to the nature of the injury; the degree of

physical impairment; the employee's usual work; * * *'' The regulatory

language contains nothing novel.

Four labor organizations argued that any position found to

constitute suitable work should be available within the employee's

commuting area. The availability of suitable work within the employee's

``commuting area'', a term which has been extensively addressed by the

ECAB, is required. See Arquelio Pacheco, 40 ECAB 277 (1988); Fred L.

Nelly, 46 ECAB 142 (1994). OWCP is modifying this section accordingly.

Section 10.501

One labor organization suggested rewording paragraph (a) to state

that OWCP's requests for medical evidence in long-term disability cases

will ordinarily occur not less than once a year. OWCP is making this

change, as the suggested wording reflects long-term OWCP policy with

respect to certain severely disabled employees.

One agency and another commenter noted that, while the Preamble to

the Proposed Rule states that benefits may be suspended for failure to

undergo non-invasive testing directed by OWCP, the text of paragraph

(b) itself does not so state. A sentence is being added to this section

to correct this oversight.

Section 10.505

One agency stated that this section combines two subsections of

section 8151(b) in error, and a labor organization made the same point

by suggesting that this section be rephrased. The word ``within'' is

being replaced by the word ``after'' to correct this oversight.

The same agency noted that, because of the importance of making job

offers in writing, Sec. 10.505(c) is better placed in Sec. 10.507,

``How should the employer make an offer of suitable work?'' OWCP

concurs, and the language has been moved accordingly.

Section 10.505(a)

One labor organization suggested that this section require the

employer to advise the employee in writing of the specific duties

involved. This change has been made.

Section 10.506

An employer suggested that agencies not be limited to the use of

Form CA-17 in gathering medical information from physicians. The form

is usually adequate for this purpose, and this section has been revised

to so state. Another agency wanted to remove the words ``in writing''

from this section, on the basis that return to work might be delayed or

improper job placements might result from unclear descriptions of

restrictions from physicians. The need for clarity in such descriptions

is one of the two main reasons for requiring such offers to be made in

writing, the other being the need for diligent attention to due process

requirements. The suggested change has not been made.

A labor organization asked whether it is appropriate to use Form

CA-17 for occupational diseases as well as traumatic injuries. OWCP has

revised Sec. 10.331(b) to allow its use in both kinds of situations.

[[Page 65298]]

This organization, along with one other, also suggested that

employers be allowed to contact employees only in writing. Also, two

labor organizations stated that employers should be explicitly

prohibited from contacting physicians through phone calls or personal

visits. OWCP concurs with both of these ideas, and the suggested

changes have been added to this section.

Another labor organization objected to the provision allowing

employers to contact employees at reasonable intervals to obtain

medical evidence, due to a perceived possibility of harassment. While

reasonable people may interpret the phrase ``at reasonable intervals''

differently, the phrase clearly does not provide license for

harassment. OWCP does not believe that there is merit to the suggestion

that this provision be removed.

Section 10.507

Two labor organizations stated that employers should be required to

advise employees in writing of the information specified in paragraphs

(a) and (b). This change has been made. (Also, ``should'' in (a) has

been changed to ``shall'' for consistency with (b).)

Section 10.507(c)

An agency asked whether a job offer can be made verbally and

followed up in writing. As discussed with respect to Sec. 10.331(b),

OWCP has tried to strike a balance among the sometimes competing

interests of employers, employees, and OWCP itself.

In this case, the time gained by allowing verbal job offers must be

balanced against the need to protect the employee's due process rights.

The FECA provides a severe and permanent penalty for refusing an

offered job, and the ECAB has remanded cases where OWCP has not

scrupulously followed various procedural requirements. Job duties must

be defined with great precision so that both employer and employee

correctly understand them, and the potential for miscommunication is

always higher in verbal than in written exchanges. However, as a

practical matter, verbal job offers can expedite the process of

reemployment, which benefits both the employer and the employee.

To both allow this flexibility and provide due process rights, this

section has been modified to state that a job offer may be made

verbally as long as the employing agency follows it up with a detailed

written job offer within two business days of the verbal offer. This

amount of time should be sufficient for the claimant to consider the

job duties and assess whether he or she can perform them. The second

half of this section has also been relettered ``(d)''.

Section 10.508

A labor organization stated that, since relocation expenses may be

paid only to individuals who have been separated from the employer's

rolls, the title of this section should be modified. However, the

program believes that the question should continue to be phrased more

generally, since it will arise with respect to employees still on the

employer's rolls as well as to separated employees.

The same organization, and two others as well, proposed that the

regulations require OWCP to notify employees that relocation expenses

are payable when the job is offered. OWCP concurs that such

notification should be provided in any case where a finding is made

that the job is suitable, and text has been added to this effect.

Section 10.509

Three labor organizations suggested that the term ``reduction-in-

force'' in Sec. 10.509(a) be further modified by adding language that

would limit its application to ``general'' or ``officially mandated''

actions. Using these modifiers, however, would not be consistent with

ECAB decisions finding that employees do not sustain compensable

recurrences of disability when they lose their light-duty positions

pursuant to many different types of reductions-in-force.

Moreover, OWCP must be able to rely upon employers (and claimants)

to advise it of any personnel actions that might affect the outcome of

a FECA claim. OWCP has neither the resources nor the expertise to

determine whether reductions-in-force are ``officially mandated''

(presumably, this phrase is equivalent to ``duly authorized''), and

must leave disputes about individual reductions-in-force to be resolved

in the proper forum. The suggested change would therefore not be

workable, nor would it enhance either the sense of this section or its

legal force.

Two of the same organizations suggested that OWCP simply assume

that eliminated light-duty positions have been abolished because of

employment-related disability. It is not OWCP's practice to make

assumptions where the facts can be determined, and OWCP sees no merit

in this idea.

Another labor organization objected to the underlying premise in

Sec. 10.509(a) that a reduction-in-force will not lead to a compensable

recurrence of disability. However, as noted above, the ECAB has

consistently ruled that employees who lose their light-duty positions

in a reduction-in-force do not sustain compensable recurrences of

disability.

A labor organization suggested that this section be modified so

that employers would be prohibited from eliminating only light-duty

positions. This is a personnel matter, and one which is outside the

scope of these regulations.

One labor organization argued that a partially disabled employee

who loses his or her Federal job will not be able to find another job

in private industry and should therefore be entitled to receive

compensation. Because this statement is hypothetical, OWCP cannot

address it. An employee whose light-duty job is withdrawn, except in

reduction-in-force situations, will in fact be entitled to claim

compensation for a recurrence of disability.

An agency noted that employees may be performing light-duty work in

classified positions while they are still receiving ``retained pay''

based on their date-of-injury positions and questioned whether OWCP

should use their actual earnings in such circumstances to determine

their wage-earning capacities consistent with the language found in

Sec. 10.509(a). However, using an employee's actual earnings while he

or she is receiving ``retained pay'' has been approved by the ECAB in

cases such as Domenick Pezzetti, 45 ECAB 787, petition for recon.

denied, Docket No. 92-2037 (issued November 2, 1994), which held that

the use of actual earnings under these circumstances to determine an

employee's wage-earning capacity was consistent with section 8115(a) of

the FECA.

The same agency also suggested that Sec. 10.509(b) specifically

note that an injured employee must ``encumber'' a classified light-duty

position before OWCP will use the actual earnings in such a position to

determine the wage-earning capacity under Sec. 10.509(a). This

suggestion reflects OWCP's existing policy in this area, and

Sec. 10.509(b) is revised accordingly.

A labor organization raised a concern that pursuant to

Sec. 10.509(b), OWCP might be tempted to use an ``odd-lot'' or

``sheltered'' position created specifically for a particular injured

employee to determine that employee's wage-earning capacity. However,

the ECAB has long rejected use of such a position, and nothing in this

subsection is meant to thwart this legal prohibition, which is widely

recognized in the field of workers' compensation law. If a job is

withdrawn after OWCP has determined the employee's loss of wage-earning

capacity, and the job was in fact an odd-lot or sheltered job, the

employee may file a claim for a recurrence of disability.

[[Page 65299]]

Finally, one commenter disagreed with the use of the term ``light-

duty'' in this section and argued that it should be replaced with a

term such as ``modified'' or ``restricted duty'' that would be based

solely on medical restrictions. However, the term ``light-duty'' has a

very specific meaning in Sec. 10.509(b) that is obviously based on a

number of medical and factual circumstances, and for these reasons OWCP

does not accept the argument that it be replaced with a purely medical

term.

Section 10.515(a)

A labor organization suggested that the word ``total'' be replaced

by ``his or her compensable'' disability. In fact, neither the original

phrase nor the proposed revision adds value to this paragraph, and the

phrase ``because total disability has ceased'' is therefore being

removed.

Section 10.515(b)

An agency suggested that this section be reworded to require

claimants to seek suitable employment, as well as to accept it. This

change, which is consistent with section 8106(c), has been made.

A labor organization suggested that this paragraph be expanded to

include the effects of an ``other acceptable medical condition'' as

well as the effects of the work-related injury. The suggested wording

both obscures the meaning of the paragraph and introduces extraneous

concerns, and no change is being made to it.

Section 10.515(c) and (d)

An agency noted that employees do not always advise attending

physicians that work may be available for them, and asks whether the

agency can contact the physician when there is a written job offer or

the employee's work limitations can be accommodated. Section 10.331(b)

allows employers to contact physicians to obtain descriptions of work

limitations on Form CA-17.

Section 10.516

Two agencies argued that the 30-day period provided by OWCP for an

employee to accept or decline an offered position is too long. One

suggested that this period be shortened to five days, while the other

suggested that it be shortened to 15 days.

Where a job is to be accepted or declined, and termination of

benefits may be at issue, OWCP does not consider a period of less than

30 days sufficient, across the board, for response from employees. For

instance, if the employee objects to the position offered for medical

reasons and thus needs to obtain a medical report, it is unreasonable

to expect that the physician will conform to a five or even a 15-day

deadline to prepare and submit a medical report.

Although the circumstances in a particular case may not in fact

warrant a 30-day period for response, clear and consistent procedures

are especially important in this area of the program's operations,

given the need to provide due process at every step. For these reasons,

OWCP does not believe a change to this paragraph is warranted.

Sections 10.518 and 10.519

While one Federal agency strongly supported the inclusion of

nursing services as one of the many vocational rehabilitation services

that OWCP may provide to injured employees, one labor organization

noted that such inclusion would change nursing services from a

voluntary choice to an obligatory course that OWCP could ``direct'' an

employee to undergo, and argued that OWCP should not make this change.

It stated that such an approach would be ``deeply unproductive''

without giving any reason for this belief. The organization also

posited that the mandatory aspect was proposed so that the costs

associated with OWCP nurses would be shifted to the employing agencies,

but in fact, the costs are already charged back to the agencies.

In addition, the organization argued that since section 8104(a) of

the FECA only allows OWCP to direct ``permanently disabled'' employees

to undergo vocational rehabilitation, OWCP could not impose the

sanctions described in Sec. 10.519 (which are derived from section

8113(b) against employees who refuse to cooperate with OWCP nurses

unless they were ``permanently disabled.''

Pursuant to section 8104(a), OWCP has the discretionary authority

to ``direct a permanently disabled individual whose disability is

compensable'' to undergo vocational rehabilitation. The ECAB has

repeatedly held that a ``permanently disabled individual'' refers to an

employee with a loss of wage-earning capacity, since the intent of

Congress in enacting section 8104(a) was to provide disabled employees

with the services necessary to overcome or lessen their disability.

See, e.g., Wayne E. Vincent, 6 ECAB 1024 (1954); Joseph C. Reuter, 11

ECAB 296 (1960); Gary L. Loser, 38 ECAB 673 (1987).

Consistent with these rulings, OWCP's policy is to presume that an

injured employee who has a loss of wage-earning capacity is

``permanently disabled,'' for purposes of Sec. 10.519 only, unless and

until the employee proves that the disability is not permanent, and to

intervene in the early stages of disability cases to help employees

return to some type of work as soon as possible. Since nursing services

have been shown to be one of the most effective vocational

rehabilitation services that can be provided to employees in the weeks

immediately following their injuries, Sec. 10.519 allows OWCP to impose

sanctions against employees who refuse to cooperate with its nurses.

However, in light of the apparent confusion regarding the scope of this

regulation, Sec. 10.519 is revised to better describe OWCP's policy.

Section 10.520

A labor organization asked that this section be reworded to state

that positions must be available within the employee's commuting area.

OWCP believes that this point is sufficiently addressed in the response

to the comments to Sec. 10.403 set out above.

Section 10.525(a)

Two agencies asked that this section include the authority for OWCP

to request copies of employees' tax returns, though neither agency

includes a reason for this request. The program occasionally finds it

necessary to request tax returns, for instance to verify self-

employment or to ensure that an employee has not earned income for a

lengthy period for which retroactive compensation is claimed. When

asked, employees have submitted the copies without protest. OWCP does

not believe that an addition of regulatory authority is necessary.

Section 10.526

One agency asked OWCP to clarify the language of this section

regarding the applicability and frequency of the intended reporting

requirement, while another agency noted the similarity of this section

to Sec. 10.525 and suggested simply combining the two sections. To

clarify Sec. 10.526 consistent with the first suggestion, the text of

this section has been modified to specifically state that this is a

periodic reporting requirement which applies to both partially and

totally disabled employees. However, the suggestion to combine

Secs. 10.525 and 10.526 is not adopted since the text of Sec. 10.526 is

intended to focus on volunteer activities, and keeping these sections

separate will further highlight this intentional distinction.

The second agency also suggested that this section include OWCP's

expectation that employees will report

[[Page 65300]]

any information which might reasonably affect their benefit levels. The

program believes that this last point is better left to procedural

guidance.

One labor organization argued that employees should not be required

to report volunteer activities because such activities may help them

cope with their disabilities. While agreeing that these activities may

be beneficial to an employee's self-esteem, OWCP is of the opinion that

they are also a useful indicator of an employee's ability to perform

some form of work and therefore should be reported.

Section 10.527

One agency suggested strengthening the wording of this section by

removing the words ``attempt to'' with respect to verifying employees

earnings. Those two words have been removed. Another agency stated that

this section should be reworded so as not to limit the kinds of

computer matches which may be performed with records of State agencies.

This suggestion is being adopted as well.

Section 10.540(b)

One labor organization suggested that the second sentence of

Sec. 10.540(b) be changed from ``a claim has been made for a specific

period of time'' to ``a claim has been approved for a specific period

of time * * *'' However, the recommended change would change the focus

of this portion of Sec. 10.540(b) from the reasonable expectation of

the beneficiary to a determination of OWCP, and would therefore be

inconsistent with the remainder of this subsection, which states that

OWCP will not provide written notice before it terminates compensation

``when the beneficiary has no reasonable basis to expect that payment

of compensation will continue.'' Therefore, the suggested change is not

made. However, two minor wording changes have been made to clarify the

meaning of two clauses in the third sentence.

Section 10.540(c)

A labor organization suggested wording changes that would, in

essence, provide employees who refuse to accept or perform suitable

work additional procedural safeguards that exceeded those described in

Sec. 10.516. However, the procedures in Sec. 10.516 are based on the

ECAB's decision in Maggie L. Moore, 42 ECAB 484 (1991), reaffirmed on

recon., 43 ECAB 818 (1992). OWCP sees no basis to add further

procedures in this area.

One agency was under the impression that this section, which states

(among other things) that OWCP will not provide written notice before

it terminates compensation based on a ``failure or refusal to either

continue performing suitable work or to accept an offer of suitable

work,'' was inconsistent with the notice provided in these situations

pursuant to Sec. 10.516. However, the two regulations are not

inconsistent since the notice provided under Sec. 10.516 informs the

employee of OWCP's determination that a particular position is

suitable, whereas the notice contemplated by Sec. 10.540 informs the

employee of the impending cessation of his or her compensation rather

than a finding on a preliminary issue such as suitability.

Therefore, for example, once an employee has received the notice

required by Sec. 10.516 and has refused an offer of suitable work, OWCP

will issue a decision terminating the employee's monetary benefits

without any prior written notice to that effect. The first sentence of

Sec. 10.540(c) is being amended to include the word ``terminated''

before ``suspended or forfeited'' to account for all of the possible

ways in which OWCP may end compensation payments.

Section 10.541(b)

An agency suggested that the word ``Substantial'' be inserted

before the word ``Evidence'' at the beginning of this section, which

addresses the kinds of evidence which will affect OWCP's proposed

action to reduce or terminate benefits. In practice, evaluations of

evidence received when pre-termination notice has been issued always

require judgment and discretion on the part of OWCP staff. This wording

change would have no effect of any significance on the meaning of this

subsection.

A labor organization suggested substituting ``finding and award

under 5 U.S.C. 8124'' for ``decision'', but here again, such a wording

change would have no apparent effect of any significance on the meaning

of this subsection.

Section 10.600

One agency proposed giving agencies the right to seek review of

decisions. Since proceedings under the FECA are non-adversarial, there

is no statutory basis for providing the agencies with the right to seek

review of benefit determinations.

Two employing agencies suggested that the phrase ``initial final

decision'' in the first sentence is confusing. OWCP concurs, and the

phrase has been changed to ``formal decision''.

Section 10.607

The existing rule, unchanged in the proposal, is that the claimant

has a right to reconsideration of any decision if requested within one

year of the date of the last merit decision. Three labor organizations

noted that the proposal does not reflect OWCP's practice of including

ECAB decisions among the ``merit decisions'' the date from which the

one year begins to run.

Any suggestion that OWCP should review or reconsider an ECAB

decision is inappropriate. OWCP and ECAB are separate and distinct

entities. The ECAB is the highest appellate authority under the FECA

and its decisions are binding on OWCP. Since OWCP has no authority to

review decisions of the ECAB, OWCP has interpreted its limitation

provision as liberally as possible, such that a merit decision of the

ECAB will renew the one-year time period within which a claimant may

request reconsideration before OWCP, with the date of the ECAB's merit

decision serving as the new starting point from which the one-year

period will run. OWCP will continue to do so, but because ECAB

decisions cannot be reviewed by anyone, including OWCP, the language in

this section has not been changed.

Section 10.609

One commenter suggested that the amount of time allowed for

employers to comment on the application for reconsideration be expanded

from 15 to 30 days, due to time constraints on the part of agency

staff. While such a change would lengthen a process which is already

time-consuming, OWCP recognizes that the 15-day period has been

problematical. Therefore, the period for commenting on the application

for reconsideration has been changed to 20 days in the final rule. This

commenter also advocated allowing employers to ``question'' claims

(presumably by requesting reconsideration). The FECA makes no provision

for appeal rights for employers.

Section 10.610

One employing agency suggested that this section include appeal

rights for employers. The FECA contains no provision for granting such

rights.

Section 10.615

One agency objected to the proposal that a hearing representative

may direct that the hearing be conducted by telephone or

teleconference. A labor organization said that this should be a

recommendation but not done at the hearing representative's option.

Neither

[[Page 65301]]

the agency nor the labor organization gives a basis for its objection.

OWCP believes that this option will allow it to better control an ever-

increasing workload and to provide hearings at an earlier time than it

otherwise could, without limiting claimants' rights in any way.

Sections 10.616 and 10.619

Several labor organizations objected to recognizing forms of date

marking other than postmarks. Since requests are being submitted

through carriers other than the Postal Service, and electronic

transmission is likely to become routine in the future, the text has

not been changed.

With respect to Sec. 10.616, one commenter noted that the claimant

could ask for a change to an oral hearing after the case was far along

in the written review process, thus undercutting efficiency and

allowing for purposeful delays. The point is well taken, and the time

frame for such requests has been shortened to 30 days after the Branch

of Hearings and Review acknowledges the request.

Sections 10.617 and 10.618

Several comments about time frames were received. One commenter

noted that the time frames set forth in Sec. 10.617(f) for submitting

evidence were confusing and potentially never-ending, because they

would allow new evidence to be submitted up to the date of the

decision, which in turn would require comments by the agency or the

employee, and so forth. The final rules have been changed to clarify

that evidence in cases where oral hearings are held is to be submitted

up to 30 days after the date on which the hearing is held (unless the

hearing representative specifically grants an extension of time).

Similarly, Sec. 10.618(a) has been changed to provide that OWCP will

designate a date by which evidence is to be submitted in reviews of the

written record.

Another commenter noted that the service provisions in

Sec. 10.618(b) represent a change from the current practice of having

the agency serve their comments directly on the claimant (or the

claimant's representative, if any) and provide OWCP with a

certification of service. That section has been slightly modified to

reflect this practice.

With respect to the agencies' comments that 15 days is not enough

time to adequately review and analyze the transcript (Sec. 10.617(e)),

OWCP recognizes that this time frame has been problematical and has

therefore extended the period for response to 20 days. For consistency,

the time frame for claimants to respond to agency comments has also

been changed to 20 days.

A labor organization suggested that the notice of hearing be mailed

60 days, rather than 30 days, before the date of the scheduled hearing.

The argument offered is that seven to 10 days can elapse between the

hearing representative's determination of the date of the hearing and

the employee's receipt of the notice. However, any increase in the

period of notice adds an increment of delay to a process which OWCP is

attempting to streamline. The program does not believe that this change

is necessary, and it has not been adopted.

Finally, one labor organization noted that language from the

statute (section 8124(b)(2)) which appears in the current rules (at

existing Sec. 10.133) should be included in Sec. 10.617. The phrase

``but may conduct the hearing in such a manner as to best ascertain the

rights of the claimant'' has been added to Sec. 10.617(c).

Section 10.621

One employing agency noted that the agency's role in

teleconferenced hearings and the number of representatives an agency

may send to the hearing needed to be clarified (another agency made the

latter point as well). Section 10.621 has been changed to allow more

than one representative, where appropriate. The comments also stated

that the agency and the claimant should each be given copies of the

other's comments, and both should have the same amount of time to

review and respond to transcripts and comments. The current practice of

sending agency comments to the claimant reflects the non-adversarial

nature of the FECA claims process, and the fact that the agency is not

a party to the claim. Because the agency is a source of information,

however, it is allowed limited participation, but expansion of that

role would not be appropriate.

Section 10.621(a)

One labor organization objected to the statement allowing hearing

representatives to ask employing agency representatives to testify, on

the basis that the employee cannot easily anticipate what issues the

hearing representative will raise and that employing agency

representatives, who are often compensation specialists, may confuse

employees with sophisticated arguments. The organization also argues

that active participation by the agency will compromise the non-

adversarial nature of the hearing process and hinder the ability of

claimants to present evidence. These arguments do not take into

consideration the role of the hearing representative, which is to

uphold the non-adversarial nature of the process and adjudicate the

issues based on the evidence. OWCP does not find these arguments

persuasive, and the language of this section has not been modified.

Section 10.622

The provision prohibiting cancellations of hearings drew

considerable criticism from four labor organizations and three

commenters, and support from one Federal agency. Most of the comments

suggested that the blanket prohibition against postponements was too

harsh and suggested that postponements be allowed under ``exceptional

circumstances.''

OWCP is concerned about providing any opportunity to further delay

the hearing process or to add yet another issue for potential review.

Nevertheless, it is recognized that very narrow circumstances exist

which are truly out of the control of the claimant and would justify a

postponement. Accordingly, Sec. 10.622(b) has been changed to allow a

postponement for exceptional circumstances, defined in Sec. 10.622(c)

as medically documented non-elective hospitalization of the claimant,

or death of the claimant's parent, spouse or child.

One labor organization commented on the period for rescheduling a

hearing. However, nothing in this section of the regulations refers to

time periods.

The first sentence in Sec. 10.622(b) has been slightly reworded and

divided into two sentences for clarity.

Section 10.701

A labor organization questioned whether representational activity

undertaken in connection with a claim under the FECA is exempt from the

prohibitions set forth at 18 U.S.C. 205. The organization asserted that

``the adjudication of a claim under the FECA is an administrative

proceeding and thereby such representation meets the exceptions noted

in the applicable law''. OWCP believes that the organization was

referring to section 205(d), which permits a Federal employee to

represent another employee in ``disciplinary, loyalty, or other

personnel administration proceedings'' so long as the person acts

without compensation. Based on OWCP's reading of Informal Advisory

Letter 85 x 1, issued January 7, 1995, by the Office of Government

Ethics (OGE) (representation of persons seeking to establish

entitlement to benefits under laws administered by the

[[Page 65302]]

Veterans Administration is not covered by section 205(d)), the program

is of the opinion that proceedings under the FECA do not come within

the exception. For these reasons, no change will be made to

Sec. 10.701.

Section 10.701(b)

A labor organization noted that the phrase ``conflict with any

other provision of law'' is redundant, given that it appears in the

first paragraph of this section. Therefore, the phrase has been removed

from paragraph (b).

Section 10.703

One commenter objected to assigning the task of approving fee

petitions to the body before which the services for which fees are

charged were performed. However, the office before which the work was

performed is in the best position to evaluate the usefulness of

services, the nature and complexity of the claim and the other criteria

set out in this section. Thus, the text remains unchanged in this

regard.

Section 10.705

One Federal agency asked whether claims examiners exercise any

discretion in requiring an employee to prosecute an action against a

third party in regard to minor injury claims, noting that Sec. 10.709

references the procedures under which a FECA beneficiary who has been

directed to pursue an action against a third party can be released from

that obligation. Section 10.705(a) provides that an injured claimant

``can be required to take action'' against a third party responsible

for an injury covered under the FECA. It does, however, allow OWCP to

exercise discretion in determining whether to require a FECA

beneficiary to take action against a third party.

Section 10.711

One Federal agency pointed out that ``Subtotal B'' in the example

should be ``72,000'' and not ``-72,000'', and that ``Disbursement'' in

line 4 of the example should be ``Disbursements.'' These observations

are correct, and Sec. 10.711 is revised accordingly.

Section 10.714

One commenter objected to the inclusion of costs for both second

opinion medical examinations and referee medical examinations within

the refundable disbursements used to calculate any required refund or

any credit against future benefits. The objection is based upon the

fact that the damages requested from a third party in any litigation

are not based upon those expenditures. Inclusion of such costs within

the refundable disbursements used to calculate both required refund and

credit against future benefits is a longstanding practice based upon

the fact that such costs are paid from the Employees' Compensation Fund

and contribute to the ability of OWCP to ``furnish to an employee who

is injured while in the performance of duty, the services, appliances,

and supplies prescribed or recommended by a qualified physician, which

the Secretary of Labor considers likely to cure, give relief, reduce

the degree or the period of disability, or aid in lessening the amount

of the monthly compensation'' as set forth in section 8103(a) of the

FECA.

Furthermore, the Supreme Court in United States v. Lorrenzetti, 467

U.S. 167 (1984), has specifically rejected any attempt to limit the

calculation of either the refund required to be paid by FECA

beneficiaries or any credit against future benefits based upon whether

or not the expenditures at issue were within the elements of damages

for which recovery was sought against a third party in the litigation

that resulted in a recovery subject to section 8132. Accordingly, the

requested change to this section is not made.

Section 10.717

One commenter disagreed with the statement that ``an injury caused

by medical malpractice in treating an injury covered by the FECA is

also an injury covered under the FECA,'' and argued that such coverage

should not result from the medical malpractice of a private physician.

However, since the statement in question is based on ECAB cases where

coverage has been found under these circumstances, such as in Bonnie D.

Jefferson, 34 ECAB 1426 (1983), the suggested modification of

Sec. 10.717 would be directly contrary to the ECAB's interpretation of

the FECA, and it is therefore considered unwarranted.

Sections 10.730 and 10.731

An agency objected to the elimination of a number of redundant

provisions that involved the Peace Corps and stated that without their

inclusion in these regulations, it would not be able to effectively

administer the workers' compensation claims of its personnel. However,

the retention of the provisions in question would not be consistent

with OWCP's efforts to streamline its regulations and would not provide

any significant assistance with respect to this class of claims since

the eliminated provisions merely repeat statutory language without

adding anything. The suggested changes to this section are therefore

not adopted.

Section 10.800

One agency recommended that OWCP expand the list of issues

addressed by medical records to include ``disability.'' The recommended

change would be consistent with Sec. 10.330(j), which states that a

medical report from an attending physician must address ``the extent of

disability,'' and therefore Sec. 10.800 is revised to reflect this

suggestion.

Section 10.801

One agency supported the changes to OWCP's fee schedule, but asked

how the requirement to use the specific billing forms listed in

Sec. 10.801 would be communicated to providers and employees. These

regulations themselves are the primary vehicle for informing providers

and employees of OWCP's billing requirements, which will also be

communicated via the Internet (from which copies of the forms can be

downloaded) and through routine contacts with OWCP claims staff and

bill processing units in the various district offices across the

country.

Section 10.802

One agency asked if there were any consequences for providers who

consistently refused to reimburse employees for amounts charged in

excess of the fee schedule. Since the inception of the fee schedule in

1986, OWCP has specified such consequences, and Sec. 10.815(e) of these

regulations states that providers may be excluded from participating in

the FECA program if they knowingly fail to reimburse employees for

amounts charged in excess of the fee schedule. Another agency thought

that allowing OWCP to consider reimbursing an employee for the amount

in excess of the fee schedule in Sec. 10.802(g) contravened the fee

schedule and would lead to an undesirable increase in agency chargeback

costs. As noted above in response to similar comments regarding

Sec. 10.337, subsections (e), (f), and (g) of Sec. 10.802 have been

modified consistent with the changes to Sec. 10.337.

Section 10.805

One agency asked if some providers might be exempt from the OWCP

fee schedule. In Sec. 10.805(b) and (c), OWCP notes that its fee

schedule does not currently cover services provided in nursing homes,

nor does it cover appliances, supplies, services or treatment furnished

by medical facilities of the U.S. Public Health Service or the

Departments of the Army, Navy, Air Force and Veterans Affairs.

[[Page 65303]]

Another agency disagreed with the fact that the fee schedule did

not apply to Government medical facilities, since this meant that

agencies would pay more if they encouraged their employees to seek

treatment for employment-related injuries or illnesses at such

facilities. However, this agency did not seem to be aware that pursuant

to section 8103(a), employees have the right to make an initial

selection of a physician to provide medical treatment, and would

presumably not choose to be treated in a Government medical facility if

other sources were available. Furthermore, there seems to be little

rationale for applying OWCP's fee schedule to these facilities since

they are, to a large extent, designed to provide specific types of

medical services to rather limited groups of patients and are not

currently operated under any recognizable billing system.

Finally, one commenter disagreed with the development and

application of OWCP's fee schedule. Referencing a February 1994 article

in the Journal of Occupational Medicine, this commenter alleged that

using the schedule would cause providers to choose not to treat injured

Federal employees, thus resulting in a diminished quality of care.

OWCP's medical fee schedule has been in use since 1986 and is currently

based on the relative value scale (RVS) used by the Health Care

Financing Administration (HCFA), which includes geographic index

factors. These data were developed by HCFA through studies and

consultations with national physicians' groups and others. They are

updated yearly through the regulatory process. While OWCP has

incorporated the HCFA RVS in its medical fee schedule, the conversion

factors that translate the RVS into maximum dollar amounts are based on

OWCP program data, data from other Federal programs, reimbursements

under State workers' compensation programs, and common billing data.

The article referenced by the commenter discusses the comparative

cost savings of a corporate medical department versus outside services

and therefore has no relevance to the program administered by OWCP

given its national scope and the restrictions imposed by the physician

selection provision of section 8103(a).

In the years since 1986, OWCP has not received any evidence that

the fee schedule has jeopardized the quality of care provided injured

employees, and the program only rarely receives a complaint about the

maxima allowable that is not satisfactorily resolved. Therefore, no

changes to Sec. 10.805 will be made.

Section 10.809

One agency recommended that OWCP reimburse employees only for

prescription drugs that they purchase for employment-related injuries

and illnesses at the lower of either the fee schedule or the employee's

individual health insurance plan charges. As already provided in

Sec. 10.809, OWCP will not reimburse an employee for an amount that

exceeds the price he or she actually paid, nor will it reimburse an

employee for an amount that exceeds the fee schedule. However, further

limitations of the sort recommended would not be feasible due to the

wide variation in health insurance plan charges and the fact that most

plans do not cover prescription drugs needed for employment-related

injuries and illnesses.

One labor organization noted that some small pharmacies lack the

means to submit bills electronically to OWCP or to wait for the

assignment of a claim number before submitting bills for payment by

OWCP. However, there is no requirement that pharmacies bill OWCP

electronically in these regulations, nor is there a likelihood that a

problem involving claim numbers will occur since these numbers are

currently being assigned in an expeditious manner.

The same labor organization asked that this section be amended to

provide that pharmacies be notified of the requirement to refund any

charges in excess of the fee schedule when employees are only partially

reimbursed for prescription drugs. However, Sec. 10.802(e) already

provides for this notice to pharmacies and repeating this provision in

Sec. 10.809 is seen as unnecessary.

Another labor organization wanted OWCP to give employees notice of

the fee schedule and an explanation of how it works, presumably in

addition to the legal notice of these matters provided by the

publication of the regulations in the Federal Register. However,

additional notice of the sort requested would not be practical and is

not seen as necessary, since current beneficiaries will be informed of

these matters as part of the routine administration of their claims by

OWCP. Therefore, the requested changes to Sec. 10.809 will not be made.

Section 10.810

As with Sec. 10.809, one labor organization wanted OWCP to notify

employees of the fee schedule for inpatient medical services in

Sec. 10.810 and explain how it works, in addition to the legal notice

of these matters provided by the publication of the regulations in the

Federal Register. However, additional notice of the sort requested

would not be practical and is not seen as necessary, since current

beneficiaries will be informed of these matters as part of the routine

administration of their claims by OWCP.

One commenter criticized the decision to use the HCFA Prospective

Payment System (PPS) using Diagnostic Related Groups (DRGs) as the

foundation of OWCP's own PPS in Sec. 10.810. However, this decision was

based on research that explored available options and a study of FECA

inpatient bills which revealed that the HCFA PPS using DRGs is well-

suited to OWCP's efforts to monitor and control its inpatient costs.

Accordingly, the requested changes to Sec. 10.810 have not been

adopted.

Section 10.816

One commenter suggested that a new paragraph (c) be added to

Sec. 10.816 requiring that the ``partner or group'' of a physician

automatically excluded from the FECA program under Sec. 10.816(a) also

be excluded from participating in the program. However, the situations

that would lead OWCP to automatically exclude a physician under

Sec. 10.816(a) would be specific to that physician, and therefore they

would not form a proper legal basis for automatically excluding that

physician's ``partner or group'' under this regulation. Therefore, the

suggested addition of a new subsection is not adopted.

Leave Buy-Back Provision

Two employing agencies and two labor organizations objected to the

removal of the leave buy-back provision found at current Sec. 10.310.

Most important among the reasons for this removal, which are stated in

the Preamble to the Proposed Rule, is that leave buy-back is neither

authorized nor required by the FECA, nor is it controlled by OWCP.

The commenters argued that agencies would not have the authority to

convert periods of leave to LWOP without the equivalent of the current

Sec. 10.310, and that in remaining silent about this issue, OWCP is

abandoning its own procedures. It was also stated that compensation

would have to be paid directly to employees, without reimbursement to

agencies, and that employees would have to pay the entire cost of leave

to agencies before leave restoration, instead of compensation due being

paid to agencies. Finally, the two agencies stated that the current

procedure, where OWCP pays the

[[Page 65304]]

agency directly, aids in debt collection, and that removal of the leave

buy-back provision from OWCP's regulations would add work for agencies.

As an ancillary issue, several agencies asked that Forms CA-7a and

CA-7b be added to the list in Sec. 10.7(a).

The reasons for removal of the leave buy-back provision have not

changed. However, since OWCP does in fact have a procedure for paying

compensation when leave is restorable, a brief mention of this process

in this rule is considered warranted, and it is being added as new

Sec. 10.425. For similar reasons, Forms CA-7a and CA-7b are being added

to the list in Sec. 10.7(a). Current practice is not altered.

Miscellaneous Comments

OWCP also received comments and suggestions which did not pertain

directly to the proposed regulations. Many would require legislative

amendments before they could be implemented, or concern procedural

matters. Because they are not germane to this final rule, no further

comments are appropriate.

One commenter addressed the section about Executive Order 12866,

questioning whether compliance will be possible with existing

personnel. To the extent that the comment refers to the staff needed by

pharmacies to comply with the fee schedule, OWCP does not agree since

similar fee schedules are already widely used. If the comment refers to

federal personnel who administer the FECA, OWCP also disagrees but, in

any event, the Executive Order does not concern the impact of

regulations on federal agencies.

The commenter also stated that the proposed pharmacy fee schedule

will adversely affect claimants since the most advanced drugs for

musculoskeletal disorders are very expensive. However, the providers

will be required to accept the amount offered under the fee schedule,

and if they do not, the regulations contain a provision for

reimbursement to the claimant of the difference between the amount

charged and the amount allowed by the fee schedule (see the comments

about Sec. 10.337 above).

This commenter also addressed the section about the Unfunded

Mandates Reform Act, referring to the above-noted proposal for

establishing ``centers of excellence'' as well as to occupational

health personnel matters. The first concern is misplaced (unfunded

mandates apply to Federal requirements imposing a burden on States).

The second concern is not germane to the regulations at hand.

Finally, with regard to the section about the Paperwork Reduction

Act, this commenter made a general recommendation that existing forms

be eliminated and consolidated. Since no specific forms are named or

specific criticisms offered, OWCP is unable to address this comment.

Publication in Final Re Non-Substantive Changes

The Department of Labor has determined, pursuant to 5 U.S.C.

553(b)(B), that good cause exists for waiving the public comment on

this rule with respect to the following changes:

(a) Typographical errors.

(b) Other minor wording changes and clarifications which do not

affect the substance of the rules.

Executive Order 12866

This final rule constitutes a ``significant'' rule within the

meaning of Executive Order 12866. The Department believes, however,

that this rule will not have a significant economic impact on the

economy, or any person or organization subject to the proposed changes.

The changes will have little or no effect on the level of benefits paid

(which in any case involve payments almost exclusively to Federal

employees from funds appropriated by Congress); nor will there be a

significant economic impact upon the hospitals and pharmacies which,

for the first time, will be subject to the fee schedules established by

these rules. The total dollar amount paid for inpatient hospital

services in fiscal year 1996 was $81,955,562.00, and subjecting these

charges to the DRG schedule is expected to result in a 20 percent

decrease in the amount paid, or about $16.4 million. The total dollar

amount paid for pharmacy costs in fiscal year 1996 was $31.9 million,

and subjecting these charges to the fee schedule is expected to result

in a 10 to 15 percent decrease in the amount paid, or about $3-4.5

million. Insofar as the new rules make it easier to seek benefits under

the FECA and streamline the administration of the program, they would

decrease administrative costs. These changes have been reviewed by the

Office of Management and Budget for consistency with the President's

priorities and the principles set forth in Executive Order 12866.

Unfunded Mandates Reform Act and Federalism Executive Order

For purposes of the Unfunded Mandates Reform Act of 1995, as well

as E.O. 12875, this rule does not include any Federal mandate that may

result in increased expenditures by State, local and tribal

Governments, or increased expenditures by the private sector of more

than $100 million.

Paperwork Reduction Act

The new collection of information contained in this rulemaking has

been approved by the Office of Management and Budget (OMB) in

accordance with the Paperwork Reduction Act of 1995. No person is

required to respond to a collection of information request unless the

collection of information displays a valid OMB control number.

The new information collection requirements contained in this

proposed rule are set forth in Secs. 10.801 and 10.802, and they relate

to information required to be submitted by pharmacies and hospitals

covering certain inpatient bills. The Department has adopted a new form

(Universal Pharmacy Billing Form) which will be used by pharmacies in

submitting claims for payment. Another form (the claimant reimbursement

form) will be used by claimants seeking reimbursement for medical

expenses for which they have paid the providers directly. The public

reporting burden for these collections of information is estimated to

average as follows: Universal Pharmacy Billing Form--It will take five

(5) minutes to complete the form, including time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed and completing and reviewing the collection

of information; Claimant Reimbursement Form--It will take an average of

ten (10) minutes to complete this form, including reviewing

instructions, searching for existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Type of Review: New Collection.

Agency: Employment Standards Administration.

Title: Claimant Medical Reimbursement Form (CA-915).

OMB Number: 1215-0193.

Affected Public: Individuals or households, Federal Government.

Total Respondents: 40,500.

Frequency: On occasion.

Total Responses: 40,500.

Average Time per Response: 10 minutes.

Total Hours: 6,723.

Total Burden Cost (capital/startup): 0.

Total Burden Cost (operating/maintenance): 0.

Type of Review: New Collection.

Agency: Employment Standards Administration.

Title: NCPDP Universal Pharmacy Billing Form (79-1A) .

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OMB Number: 1215-0194.

Affected Public: Businesses or other for-profit; Not-for-profit

Institutions; Individuals or households; Federal Government; State,

Local or Tribal Government.

Total Respondents: 406,198.

Frequency: On occasion.

Total Responses: 406,198.

Average Time per Response: 5 minutes.

Total Hours: 33,714.

Total Burden Cost (capital/startup): 0.

Total Burden Cost (operating/maintenance): 0.

Regulatory Flexibility Act

The Department believes that the rule will have ``no significant

economic impact upon a substantial number of small entities'' within

the meaning of section 3(a) of the Regulatory Flexibility Act Pub. L.

96-354, 91 Stat. 1164 (5 U.S.C. 605(b)). The provision of the final

rules extending cost control measures to hospital inpatient services

and pharmacies is the only provision of the regulations which may have

a monetary effect on small businesses. That effect will not be

significant for a substantial number of those businesses, however, for

no one business bills a significant amount to OWCP for FECA-related

services, and the effect on those bills which are submitted, while a

worthwhile savings for the Government in the aggregate, will be not be

significant for individual businesses affected.

The two new cost containment provisions are: (1) A set schedule for

payment of pharmacy bills; and (2) a prospective payment system for

hospital inpatient services. The two methodologies are fully explained

in the text of the Preamble to the Proposed Rule, including the fact

that the use of Diagnostic Related Groups (DRGs) for setting payment

for inpatient hospital charges essentially is an adaptation of a system

used by the Health Care Finance Agency (HCFA) in payment of Medicare

bills. The use of Average Wholesale Prices (AWP) in setting the maximum

reimbursable amount for pharmacy bills is also commonplace in the

industry.

The method selected by OWCP is therefore one which contains

efficiencies both for the Government and providers. The Government

benefits because OWCP did not develop a new system, but rather

minimized the use of resources by adopting existing and well-recognized

systems already in place. The providers benefit because submitting a

bill to OWCP and receiving payment will be almost the same process as

submitting it to Medicare, a program with which hospitals are already

familiar and have in place for billing, so they will not have to learn

a new process and the FECA bills will not represent an unnecessary

administrative cost because the FECA bill process will not be

essentially distinguished from that for Medicare. Similarly, the

pharmacies are used to billing through clearing houses and having

charges subject to limits by private insurers. By adopting the uniform

billing statement and a familiar cost control methodology, OWCP has

kept close to the environment with which the pharmacies are already

familiar. The methods chosen, therefore, represent a familiar

environment to the providers.

The costs savings resulting from the implementation of these cost

containment methods will have no significant effect on any individual

business. First, the need for cost containment in the FECA program is

self-evident and these methods are already used by Medicare, CHAMPUS

and the Department of Veterans Affairs, among Government entities, and

for the private insurance carriers which cover Federal employees as

part of the Federal employees' health benefit insurance programs. The

costs to providers whose charges may be reduced are relatively small,

both in incremental and in actual terms.

Incrementally, FECA bills simply do not represent a large share of

any one provider's total business. Since Federal employees are spread

throughout the United States and this system covers only those Federal

employees who are injured on the job and require either prescription

drugs or inpatient hospital care (a tiny subset of all employees), the

number of bills submitted by any one provider which may be subject to

these provisions is likely to be very small.

Second, in actual terms, the amount by which these bills might be

reduced will not have a significant impact on any business. In fiscal

year (FY) 1998, the program paid $100.1 million dollars on about 13,150

bills received for inpatient hospital services (an average charge of

$7,600.00 per stay). The total number of hospitals on the program's

provider files is about 5,000, for an average patient load of slightly

over three FECA-claimant patients per hospital. If we assume that no

hospital had more than three patients, then the average annual billings

subject to these rules for any hospital would be about $22,800 (3 X

$7,600). As noted in the Preamble to the Proposed Rule, the DRG method

will reduce the $100.1 million by about 20 percent, or $20.2 million.

Thus, the average dollar amount of the reduction in bills submitted by

any one hospital resulting from these rules would be about $4,560.00.

A similarly small actual dollar reduction applies to pharmacy

charges. OWCP paid about $32,000,000 for pharmacy charges, although the

program cannot identify exactly what portion of this amount was paid to

institutions, since much of this dollar figure represents

reimbursements directly to claimants. OWCP cannot identify with

certainty the number of pharmacies who provided supplies, for the same

reason, but there are about 4,000 pharmacies in the program's provider

files. Similarly, OWCP cannot determine the exact number of bills paid,

since the program captures only those submitted by a provider for

direct payment and not those submitted by a claimant for reimbursement.

Assuming for purposes of this analysis that the reimbursements were

evenly divided among pharmacies already part of our provider files, we

divide 4,000 providers into the total number of dollars paid to get an

average annual aggregate of charges paid to a provider of about $8,000.

It is estimated that the schedule would result in an average reduction

of five percent in pharmacy charges; based on these figures, the

average pharmacy would see a reduction in the total amount received of

about $400.

These figures illustrate that the ``cost'' of these rules to any

one provider is negligible. On the other hand, OWCP will see

substantial aggregate cost savings as a result (estimated at

$18,000,000). These savings benefit OWCP (by strengthening the

integrity of the program), the employing agencies (which ultimately

foot the bill for FECA through the chargeback system), and taxpayer and

rate payers to whom the ultimate costs of the program are eventually

charged through appropriations.

The Assistant Secretary for Employment Standards has certified to

the Chief Counsel for Advocacy of the Small Business Administration

that these rules will not have a significant impact on a substantial

number of small entities. The factual basis for this certification has

been provided above. Accordingly, no regulatory impact analysis is

required.

Executive Order 13045 Protection of Children From Environmental,

Health Risks and Safety Risks

In accordance with Executive Order 13045, OWCP has evaluated the

environmental health and safety effects of the rule on children. The

agency has determined that the final rule will have no effect on

children.

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Submission to Congress and the General Accounting Office

In accordance with the Small Business Regulatory Enforcement

Fairness Act, the Department will submit to each House of the Congress

and to the Comptroller General a report regarding the issuance of

today's final rule prior to the effective date set forth at the outset

of this notice. The report will note that this rule does not constitute

a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 20 CFR Parts 10 and 25

Administrative practices and procedures, Claims, Government

employees, Labor, Workers' compensation.

For reasons set forth in the preamble, 20 Chapter I is amended to

read as follows:

1. Part 10 is revised to read as follows:

PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES'

COMPENSATION ACT, AS AMENDED

Subpart A--General Provisions

Sec.

Introduction

10.0 What are the provisions of the FECA, in general?

10.1 What rules govern the administration of the FECA and this

chapter?

10.2 What do these regulations contain?

10.3 Have the collection of information requirements of this part

been approved by the Office of Management and Budget (OMB)?

Definitions and Forms

10.5 What definitions apply to these regulations?

10.6 What special statutory definitions apply to dependents and

survivors?

10.7 What forms are needed to process claims under the FECA?

Information in Program Records

10.10 Are all documents relating to claims filed under the FECA

considered confidential?

10.11 Who maintains custody and control of FECA records?

10.12 How may a FECA claimant or beneficiary obtain copies of

protected records?

10.13 What process is used by a person who wants to correct FECA-

related documents?

Rights and Penalties

10.15 May compensation rights be waived?

10.16 What criminal 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

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