SUBCHAPTER B—FEDERAL EMPLOYEES’ COMPENSATION ACT
PART 10—CLAIMS FOR COM- Subpart B—Filing Notices and Claims; PENSATION UNDER THE FEDERAL Submitting Evidence EMPLOYEES’ COMPENSATION NOTICES AND CLAIMS FOR INJURY, DISEASE ACT, AS AMENDED AND DEATH—EMPLOYEE OR SURVIVOR’S AC- TIONS Subpart A—General Provisions 10.100 How and when is a notice of trau- matic injury filed? INTRODUCTION 10.101 How and when is a notice of occupa- Sec. tional disease filed? 10.0 What are the provisions of the FECA, in 10.102 How and when is a claim for wage loss general? compensation filed? 10.1 What rules govern the administration 10.103 How and when is a claim for perma- of the FECA and this chapter? nent impairment filed? 10.104 How and when is a claim for recur- 10.2 What do these regulations contain? rence filed? 10.3 Have the collection of information re- 10.105 How and when is a notice of death quirements of this part been approved by and claim for benefits filed? the Office of Management and Budget (OMB)? NOTICES AND CLAIMS FOR INJURY, DISEASE AND DEATH—EMPLOYER’S ACTIONS DEFINITIONS AND FORMS 10.110 What should the employer do when an 10.5 What definitions apply to these regula- employee files a notice of traumatic in- tions? jury or occupational disease? 10.6 What special statutory definitions 10.111 What should the employer do when an apply to dependents and survivors? employee files an initial claim for com- 10.7 What forms are needed to process pensation due to disability or permanent claims under the FECA? impairment? 10.112 What should the employer do when an INFORMATION IN PROGRAM RECORDS employee files a claim for continuing 10.10 Are all documents relating to claims compensation due to disability? filed under the FECA considered con- 10.113 What should the employer do when an fidential? employee dies from a work-related injury or disease? 10.11 Who maintains custody and control of FECA records? EVIDENCE AND BURDEN OF PROOF 10.12 How may a FECA claimant or bene- ficiary obtain copies of protected 10.115 What evidence is needed to establish records? a claim? 10.13 What process is used by a person who 10.116 What additional evidence is needed in wants to correct FECA-related docu- cases based on occupational disease? ments? 10.117 What happens if, in any claim, the employer contests any of the facts as RIGHTS AND PENALTIES stated by the claimant? 10.118 Does the employer participate in the 10.15 May compensation rights be waived? claims process in any other way? 10.16 What criminal penalties may be im- 10.119 What action will OWCP take with re- posed in connection with a claim under spect to information submitted by the the FECA? employer? 10.17 Is a beneficiary who defrauds the Gov- 10.120 May a claimant submit additional ernment in connection with a claim for evidence? benefits still entitled to those benefits? 10.121 What happens if OWCP needs more 10.18 Can a beneficiary who is incarcerated evidence from the claimant? based on a felony conviction still receive benefits? DECISIONS ON ENTITLEMENT TO BENEFITS 10.125 How does OWCP determine entitle- ment to benefits? 10.126 What does the decision contain? 10.127 To whom is the decision sent?
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Subpart C—Continuation of Pay 10.311 What are the special rules for the services of chiropractors? 10.200 What is continuation of pay? 10.312 What are the special rules for the services of clinical psychologists? ELIGIBILITY FOR COP 10.313 Will OWCP pay for preventive treat- 10.205 What conditions must be met to re- ment? ceive COP? 10.314 Will OWCP pay for the services of an 10.206 May an employee who uses leave attendant? after an injury later decide to use COP 10.315 Will OWCP pay for transportation to instead? obtain medical treatment? 10.207 May an employee who returns to 10.316 After selecting a treating physician, work, then stops work again due to the may an employee choose to be treated by effects of the injury, receive COP? another physician instead?
RESPONSIBILITIES DIRECTED MEDICAL EXAMINATIONS 10.210 What are the employee’s responsibil- 10.320 Can OWCP require an employee to be ities in COP cases? examined by another physician? 10.211 What are the employer’s responsibil- 10.321 What happens if the opinion of the ities in COP cases? physician selected by OWCP differs from the opinion of the physician selected by CALCULATION OF COP the employee? 10.215 How does OWCP compute the number 10.322 Who pays for second opinion and ref- of days of COP used? eree examinations? 10.216 How is the pay rate for COP cal- 10.323 What are the penalties for failing to culated? report for or obstructing a second opin- 10.217 Is COP charged if the employee con- ion or referee examination? tinues to work, but in a different job that 10.324 May an employer require an em- pays less? ployee to undergo a physical examina- tion in connection with a work-related CONTROVERSION AND TERMINATION OF COP injury?
10.220 When is an employer not required to MEDICAL REPORTS pay COP? 10.221 How is a claim for COP controverted? 10.330 What are the requirements for med- 10.222 When may an employer terminate ical reports? COP which has already begun? 10.331 How and when should the medical re- 10.223 Are there other circumstances under port be submitted? which OWCP will not authorize payment 10.332 What additional medical information of COP? will OWCP require to support continuing 10.224 What happens if OWCP finds that the payment of benefits? employee is not entitled to COP after it 10.333 What additional medical information has been paid? will OWCP require to support a claim for a schedule award? Subpart D—Medical and Related Benefits MEDICAL BILLS EMERGENCY MEDICAL CARE 10.335 How are medical bills submitted? 10.300 What are the basic rules for author- 10.336 What are the time frames for submit- izing emergency medical care? ting bills? 10.301 May the physician designated on 10.337 If OWCP reimburses an employee Form CA–16 refer the employee to an- only partially for a medical expense, other medical specialist or medical facil- must the provider refund the balance of ity? the amount paid to the employee? 10.302 Should the employer authorize med- ical care if he or she doubts that the in- Subpart E—Compensation and Related jury occurred, or that it is work-related? Benefits 10.303 Should the employer use a Form CA– 16 to authorize medical testing when an COMPENSATION FOR DISABILITY AND employee is exposed to a workplace haz- IMPAIRMENT ard just once? 10.400 What is total disability? 10.304 Are there any exceptions to these 10.401 When and how is compensation for procedures for obtaining emergency med- total disability paid? ical care? 10.402 What is partial disability? 10.403 When and how is compensation for MEDICAL TREATMENT AND RELATED ISSUES partial disability paid? 10.310 What are the basic rules for obtaining 10.404 When and how is compensation for a medical care? schedule impairment paid?
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10.405 Who is considered a dependent in a 10.437 Under what circumstances would re- claim based on disability or impairment? covery of an overpayment be against eq- 10.406 What are the maximum and min- uity and good conscience? imum rates of compensation in disability 10.438 Can OWCP require the individual who cases? received the overpayment to submit ad- ditional financial information? COMPENSATION FOR DEATH 10.439 What is addressed at a pre- 10.410 Who is entitled to compensation in recoupment hearing? case of death, and what are the rates of 10.440 How does OWCP communicate its compensation payable in death cases? final decision concerning recovery of an 10.411 What are the maximum and min- overpayment, and what appeal right ac- imum rates of compensation in death companies it? cases? 10.441 How are overpayments collected? 10.412 Will OWCP pay the costs of burial and transportation of the remains? Subpart F—Continuing Benefits 10.413 If a person dies while receiving a RULES AND EVIDENCE schedule award, to whom is the balance of the schedule award payable? 10.500 What are the basic rules for con- 10.414 What reports of dependents are need- tinuing receipt of compensation benefits ed in death cases? and return to work? 10.415 What must a beneficiary do if the 10.501 What medical evidence is necessary number of beneficiaries decreases? to support continuing receipt of com- 10.416 How does a change in the number of pensation benefits? beneficiaries affect the amount of com- 10.502 How does OWCP evaluate evidence in pensation paid to the other beneficiaries? support of continuing receipt of com- 10.417 What reports are needed when com- pensation benefits? pensation payments continue for chil- 10.503 Under what circumstances may dren over age 18? OWCP reduce or terminate compensation benefits? ADJUSTMENTS TO COMPENSATION RETURN TO WORK—EMPLOYER’S 10.420 How are cost-of-living adjustments RESPONSIBILITIES applied? 10.421 May a beneficiary receive other kinds 10.505 What actions must the employer of payments from the Federal Govern- take? ment concurrently with compensation? 10.506 May the employer monitor the em- 10.422 May compensation payments be ployee’s medical care? issued in a lump sum? 10.507 How should the employer make an 10.423 May compensation payments be as- offer of suitable work? signed to, or attached by, creditors? 10.508 May relocation expenses be paid for 10.424 May someone other than the bene- an employee who would need to move to ficiary be designated to receive com- accept an offer of reemployment? pensation payments? 10.509 If an employee’s light-duty job is 10.425 May compensation be claimed for pe- eliminated due to downsizing, what is riods of restorable leave? the effect on compensation?
OVERPAYMENTS RETURN TO WORK—EMPLOYEE’S RESPONSIBILITIES 10.430 How does OWCP notify an individual of a payment made? 10.515 What actions must the employee take 10.431 What does OWCP do when an over- with respect to returning to work? payment is identified? 10.516 How will an employee know if OWCP 10.432 How can an individual present evi- considers a job to be suitable? dence to OWCP in response to a prelimi- 10.517 What are the penalties for refusing to nary notice of an overpayment? accept a suitable job offer? 10.433 Under what circumstances can OWCP 10.518 Does OWCP provide services to help waive recovery of an overpayment? employees return to work? 10.434 If OWCP finds that the recipient of an 10.519 What action will OWCP take if an overpayment was not at fault, what cri- employee refuses to undergo vocational teria are used to decide whether to waive rehabilitation? recovery of it? 10.520 How does OWCP determine compensa- 10.435 Is an individual responsible for an tion after an employee completes a voca- overpayment that resulted from an error tional rehabilitation program? made by OWCP or another Government REPORTS OF EARNINGS FROM EMPLOYMENT agency? AND SELF-EMPLOYMENT 10.436 Under what circumstances would re- covery of an overpayment defeat the pur- 10.525 What information must the employee pose of the FECA? report?
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10.526 Must the employee report volunteer REVIEWS BY THE EMPLOYEES’ COMPENSATION activities? APPEALS BOARD (ECAB) 10.527 Does OWCP verify reports of earn- 10.625 What kinds of decisions may be ap- ings? pealed? 10.528 What action will OWCP take if the 10.626 Who has jurisdiction of cases on ap- employee fails to file a report of activity peal to the ECAB? indicating an ability to work? 10.529 What action will OWCP take if the Subpart H—Special Provisions employee files an incomplete report? REPRESENTATION REPORTS OF DEPENDENTS 10.70 May a claimant designate a represent- 10.535 How are dependents defined, and what ative? information must the employee report? 10.701 Who may serve as a representative? 10.536 What is the penalty for failing to sub- 10.702 How are fees for services paid? mit a report of dependents? 10.703 How are fee applications approved? 10.537 What reports are needed when com- THIRD PARTY LIABILITY pensation payments continue for chil- dren over age 18? 10.705 When must an employee or other FECA beneficiary take action against a REDUCTION AND TERMINATION OF third party? COMPENSATION 10.706 How will a beneficiary know if OWCP or SOL has determined that action 10.540 When and how is compensation re- against a third party is required? duced or terminated? 10.707 What must a FECA beneficiary who is 10.541 What action will OWCP take after required to take action against a third issuing written notice of its intention to party do to satisfy the requirement that reduce or terminate compensation? the claim be ‘‘prosecuted’’? 10.708 Can a FECA beneficiary who refuses Subpart G—Appeals Process to comply with a request to assign a claim to the United States or to pros- 10.600 How can final decisions of OWCP be ecute the claim in his or her own name reviewed? be penalized? 10.709 What happens if a beneficiary di- RECONSIDERATIONS AND REVIEWS BY THE rected by OWCP or SOL to take action DIRECTOR against a third party does not believe 10.605 What is reconsideration? that a claim can be successfully pros- 10.606 How does a claimant request recon- ecuted at a reasonable cost? sideration? 10.71 Under what circumstances must a re- 10.607 What is the time limit for requesting covery of money or other property in reconsideration? connection with an injury or death for which benefits are payable under the 10.608 How does OWCP decide whether to FECA be reported to OWCP or SOL? grant or deny the request for reconsider- 10.711 How much of any settlement or judg- ation? ment must be paid to the United States? 10.609 How does OWCP decide whether new 10.712 What amounts are included in the evidence requires modification of the gross recovery? prior decision? 10.713 How is a structured settlement (that 10.610 What is a review by the Director? is, a settlement providing for receipt of funds over a specified period of time) HEARINGS treated for purposes of reporting the 10.615 What is a hearing? gross recovery? 10.616 How does a claimant obtain a hear- 10.714 What amounts are included in the re- ing? fundable disbursements? 10.617 How is an oral hearing conducted? 10.715 Is a beneficiary required to pay inter- est on the amount of the refund due to 10.618 How is a review of the written record the United States? conducted? 10.716 If the required refund is not paid 10.619 May subpoenas be issued for wit- within 30 days of the request for repay- nesses and documents? ment, can it be collected from payments 10.62 Who pays the costs associated with due under the FECA? subpoenas? 10.717 Is a settlement or judgment received 10.621 What is the employer’s role when an as a result of allegations of medical mal- oral hearing has been requested? practice in treating an injury covered by 10.622 May a claimant withdraw a request the FECA a gross recovery that must be for or postpone a hearing? reported to OWCP or SOL?
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10.718 Are payments to a beneficiary as a MEDICAL FEE SCHEDULE result of an insurance policy which the 10.805 What services are covered by the beneficiary has purchased a gross recov- OWCP fee schedule? ery that must be reported to OWCP or 10.806 How are the maximum fees defined? SOL? 10.807 How are payments for particular 10.719 If a settlement or judgment is re- services calculated? ceived for more than one wound or med- 10.808 Does the fee schedule apply to every ical condition, can the refundable dis- kind of procedure? bursements paid on a single FECA claim 10.809 How are payments for medicinal be attributed to different conditions for drugs determined? purposes of calculating the refund or 10.810 How are payments for inpatient med- credit owed to the United States? ical services determined? 10.811 When and how are fees reduced? FEDERAL GRAND AND PETIT JURORS 10.812 If OWCP reduces a fee, may a pro- 10.725 When is a Federal grand or petit juror vider request reconsideration of the re- covered under the FECA? duction? 10.813 If OWCP reduces a fee, may a pro- 10.726 When does a juror’s entitlement to vider bill the claimant for the balance? disability compensation begin? 10.727 What is the pay rate of jurors for EXCLUSION OF PROVIDERS compensation purposes? 10.815 What are the grounds for excluding a PEACE CORPS VOLUNTEERS provider from payment under the FECA? 10.816 What will cause OWCP to automati- 10.73 What are the conditions of coverage cally exclude a physician or other pro- for Peace Corps volunteers and volunteer vider of medical services and supplies? leaders injured while serving outside the 10.817 When are OWCP’s exclusion proce- United States? dures initiated? 10.731 What is the pay rate of Peace Corps 10.818 How is a provider notified of OWCP’s volunteers and volunteer leaders for intent to exclude him or her? compensation purposes? 10.819 What requirements must the pro- vider’s reply and OWCP’s decision meet? NON-FEDERAL LAW ENFORCEMENT OFFICERS 10.820 How can an excluded provider request a hearing? 10.735 When is a non-Federal law enforce- 10.821 How are hearings assigned and sched- ment officer (LEO) covered under the uled? FECA? 10.822 How are subpoenas or advisory opin- 10.736 What are the time limits for filing a ions obtained? LEO claim? 10.823 How will the administrative law 10.737 How is a LEO claim filed, and who judge conduct the hearing and issue the can file a LEO claim? recommended decision? 10.738 Under what circumstances are bene- 10.824 How can a party request review by fits payable in LEO claims? the Director of the administrative law 10.739 What kind of objective evidence of a judge’s recommended decision? potential Federal crime must exist for 10.825 What are the effects of exclusion? coverage to be extended? 10.826 How can an excluded provider be rein- 10.740 In what situations will OWCP auto- stated? matically presume that a law enforce- AUTHORITY: 5 U.S.C. 301, 8103, 8145 and 8149; ment officer is covered by the FECA? 31 U.S.C. 3716 and 3717; Reorganization Plan 10.741 How are benefits calculated in LEO No. 6 of 1950, 15 FR 3174, 64 Stat. 1263; Sec- claims? retary’s Order 5–96, 62 FR 107.
SOURCE: 63 FR 65306, Nov. 25, 1998, unless Subpart I—Information for Medical otherwise noted. Providers
MEDICAL RECORDS AND BILLS Subpart A—General Provisions
10.800 What kind of medical records must INTRODUCTION providers keep? 10.801 How are medical bills to be sub- § 10.0 What are the provisions of the mitted? FECA, in general? 10.802 How should an employee prepare and submit requests for reimbursement for The Federal Employees’ Compensa- medical expenses, transportation costs, tion Act (FECA) as amended (5 U.S.C. loss of wages, and incidental expenses? 8101 et seq.) provides for the payment 10.803 What are the time limitations on of workers’ compensation benefits to OWCP’s payment of bills? civilian officers and employees of all
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branches of the Government of the FECA to the Director of the Office of United States. The regulations in this Workers’ Compensation Programs part describe the rules for filing, proc- (OWCP). Except as otherwise provided essing, and paying claims for benefits by law, the Director, OWCP and his or under the FECA. Proceedings under the her designees have the exclusive au- FECA are non-adversarial in nature. thority to administer, interpret and (a) The FECA has been amended and enforce the provisions of the Act. extended a number of times to provide workers’ compensation benefits to vol- § 10.2 What do these regulations con- unteers in the Civil Air Patrol (5 U.S.C. tain? 8141), members of the Reserve Officers’ This part 10 sets forth the regula- Training Corps (5 U.S.C. 8140), Peace tions governing administration of all Corps Volunteers (5 U.S.C. 8142), Job claims filed under the FECA, except to Corps enrollees and Volunteers in Serv- the extent specified in certain par- ice to America (5 U.S.C. 8143), members ticular provisions. Its provisions are of the National Teachers Corps (5 intended to assist persons seeking com- U.S.C. 8143a), certain student employ- pensation benefits under the FECA, as ees (5 U.S.C. 5351 and 8144), certain law well as personnel in the various Fed- enforcement officers not employed by eral agencies and the Department of the United States (5 U.S.C. 8191–8193), Labor who process claims filed under and various other classes of persons the FECA or who perform administra- who provide or have provided services tive functions with respect to the to the Government of the United FECA. This part 10 applies to part 25 of States. this chapter except as modified by part (b) The FECA provides for payment 25. The various subparts of this part of several types of benefits, including contain the following: compensation for wage loss, schedule (a) Subpart A: The general statutory awards, medical and related benefits, and administrative framework for and vocational rehabilitation services processing claims under the FECA. It for conditions resulting from injuries contains a statement of purpose and sustained in performance of duty while scope, together with definitions of in service to the United States. terms, descriptions of basic forms, in- (c) The FECA also provides for pay- formation about the disclosure of ment of monetary compensation to OWCP records, and a description of specified survivors of an employee rights and penalties under the FECA, whose death resulted from a work-re- including convictions for fraud. lated injury and for payment of certain (b) Subpart B: The rules for filing no- burial expenses subject to the provi- tices of injury and claims for benefits sions of 5 U.S.C. 8134. under the FECA. It also addresses evi- (d) All types of benefits and condi- dence and burden of proof, as well as tions of eligibility listed in this section the process of making decisions con- are subject to the provisions of the cerning eligibility for benefits. FECA and of this part. This section (c) Subpart C: The rules governing shall not be construed to modify or en- claims for and payment of continu- large upon the provisions of the FECA. ation of pay. (d) Subpart D: The rules governing § 10.1 What rules govern the adminis- emergency and routine medical care, tration of the FECA and this chap- second opinion and referee medical ex- ter? aminations directed by OWCP, and In accordance with 5 U.S.C. 8145 and medical reports and records in general. Secretary’s Order 5–96, the responsi- It also addresses the kinds of treat- bility for administering the FECA, ex- ment which may be authorized and how cept for 5 U.S.C. 8149 as it pertains to medical bills are paid. the Employees’ Compensation Appeals (e) Subpart E: The rules relating to Board, has been delegated to the As- the payment of monetary compensa- sistant Secretary for Employment tion benefits for disability, impairment Standards. The Assistant Secretary, in and death. It includes the provisions turn, has delegated the authority and for identifying and processing overpay- responsibility for administering the ments of compensation.
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(f) Subpart F: The rules governing loss of wage-earning capacity or a per- the payment of continuing compensa- manent physical impairment, as well tion benefits. It includes provisions as the money paid to beneficiaries for concerning the employee’s and the em- an employee’s death. These two terms ployer’s responsibilities in returning also include any other amounts paid the employee to work. It also contains out of the Employees’ Compensation provisions governing reports of earn- Fund for such things as medical treat- ings and dependents, recurrences, and ment, medical examinations conducted reduction and termination of com- at the request of OWCP as part of the pensation benefits. claims adjudication process, vocational (g) Subpart G: The rules governing rehabilitation services, services of an the appeals of decisions under the attendant and funeral expenses, but FECA. It includes provisions relating does not include continuation of pay. to hearings, reconsiderations, and ap- (b) Beneficiary means an individual peals before the Employees’ Compensa- who is entitled to a benefit under the tion Appeals Board. FECA and this part. (h) Subpart H: The rules concerning (c) Claim means a written assertion of legal representation and for adjust- an individual’s entitlement to benefits ment and recovery from a third party. under the FECA, submitted in a man- It also contains provisions relevant to ner authorized by this part. three groups of employees whose status (d) Claimant means an individual requires special application of the pro- whose claim has been filed. visions of the FECA: Federal grand and (e) Director means the Director of petit jurors, Peace Corps volunteers, OWCP or a person designated to carry and non-Federal law enforcement offi- out his or her functions. cers. (f) Disability means the incapacity, (i) Subpart I: Information for medical because of an employment injury, to providers. It includes rules for medical earn the wages the employee was re- reports, medical bills, and the OWCP ceiving at the time of injury. It may be medical fee schedule, as well as the partial or total. provisions for exclusion of medical pro- (g) Earnings from employment or self- viders. employment means: § 10.3 Have the collection of informa- (1) Gross earnings or wages before tion requirements of this part been any deductions and includes the value approved by the Office of Manage- of subsistence, quarters, reimbursed ex- ment and Budget (OMB)? penses and any other goods or services The collection of information re- received in kind as remuneration; or quirements in this part have been ap- (2) A reasonable estimate of the cost proved by OMB and assigned OMB con- to have someone else perform the du- trol numbers 1215–0055, 1215–0067, 1215– ties of an individual who accepts no re- 0078, 1215–0103, 1215–0105, 1215–0115, 1215– muneration. Neither lack of profits, 0116, 1215–0144, 1215–0151, 1215–0154, 1215– nor the characterization of the duties 0155, 1215–0161, 1215–0167, 1215–0176, 1215– as a hobby, removes an unremunerated 0178, 1215–0182, 1215–0193 and 1215–0194. individual’s responsibility to report the estimated cost to have someone else DEFINITIONS AND FORMS perform his or her duties. (h) Employee means, but is not lim- § 10.5 What definitions apply to these ited to, an individual who fits within regulations? one of the following listed groups: Certain words and phrases found in (1) A civil officer or employee in any this part are defined in this section or branch of the Government of the in the FECA. Some other words and United States, including an officer or phrases that are used only in limited employee of an instrumentality wholly situations are defined in the later sub- owned by the United States; parts of these regulations. (2) An individual rendering personal (a) Benefits or Compensation means service to the United States similar to the money OWCP pays to or on behalf the service of a civil officer or em- of a beneficiary from the Employees’ ployee of the United States, without Compensation Fund for lost wages, a pay or for nominal pay, when a statute
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authorizes the acceptance or use of the ulation of the spine to correct a sub- service, or authorizes payment of trav- luxation. el or other expenses of the individual; (p) Medical support services means (3) An individual, other than an inde- services, drugs, supplies and appliances pendent contractor or an individual provided by a person other than a phy- employed by an independent con- sician or hospital. tractor, employed on the Menominee (q) Occupational disease or Illness Indian Reservation in Wisconsin in op- means a condition produced by the erations conducted under a statute re- work environment over a period longer lating to tribal timber and logging op- than a single workday or shift. erations on that reservation; (r) OWCP means the Office of Work- (4) An individual appointed to a posi- ers’ Compensation Programs. tion on the office staff of a former (s) Pay rate for compensation purposes President; or means the employee’s pay, as deter- (5) An individual selected and serving mined under 5 U.S.C. 8114, at the time as a Federal petit or grand juror. of injury, the time disability begins or (i) Employer or Agency means any the time compensable disability recurs civil agency or instrumentality of the if the recurrence begins more than six United States Government, or any months after the injured employee re- other organization, group or institu- sumes regular full-time employment tion employing an individual defined as with the United States, whichever is an ‘‘employee’’ by this section. These greater, except as otherwise deter- terms also refer to officers and employ- mined under 5 U.S.C. 8113 with respect ees of an employer having responsi- to any period. bility for the supervision, direction or (t) Physician means an individual de- control of employees of that employer fined as such in 5 U.S.C. 8101(2), except as an ‘‘immediate superior,’’ and to during the period for which his or her other employees designated by the em- license to practice medicine has been ployer to carry out the functions vest- suspended or revoked by a State licens- ed in the employer under the FECA and ing or regulatory authority. this part, including officers or employ- (u) Qualified hospital means any hos- ees delegated responsibility by an em- pital licensed as such under State law ployer for authorizing medical treat- which has not been excluded under the ment for injured employees. provisions of subpart I of this part. Ex- (j) Entitlement means entitlement to cept as otherwise provided by regula- benefits as determined by OWCP under tion, a qualified hospital shall be the FECA and the procedures described deemed to be designated or approved by in this part. OWCP. (k) FECA means the Federal Employ- (v) Qualified physician means any ees’ Compensation Act, as amended. physician who has not been excluded (l) Hospital services means services under the provisions of subpart I of and supplies provided by hospitals this part. Except as otherwise provided within the scope of their practice as de- by regulation, a qualified physician fined by State law. shall be deemed to be designated or ap- (m) Impairment means any anatomic proved by OWCP. or functional abnormality or loss. A (w) Qualified provider of medical sup- permanent impairment is any such ab- port services or supplies means any per- normality or loss after maximum med- son, other than a physician or a hos- ical improvement has been achieved. pital, who provides services, drugs, sup- (n) Knowingly means with knowledge, plies and appliances for which OWCP consciously, willfully or intentionally. makes payment, who possesses any ap- (o) Medical services means services plicable licenses required under State and supplies provided by or under the law, and who has not been excluded supervision of a physician. Reimburs- under the provisions of subpart I of able chiropractic services are limited this part. to physical examinations (and related (x) Recurrence of disability means an laboratory tests), x-rays performed to inability to work after an employee diagnose a subluxation of the spine and has returned to work, caused by a spon- treatment consisting of manual manip- taneous change in a medical condition
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which had resulted from a previous in- compensation based on such attend- jury or illness without an intervening ance; or injury or new exposure to the work en- (ii) If the individual has indicated vironment that caused the illness. This that he or she will not continue school- term also means an inability to work ing within four months of high school that takes place when a light-duty as- graduation, the 12-month period begin- signment made specifically to accom- ning with the month that the indi- modate an employee’s physical limita- vidual enters school to continue his or tions due to his or her work-related in- her education, and each successive 12- jury or illness is withdrawn (except month period in which there is school when such withdrawal occurs for rea- attendance or the payment of com- sons of misconduct, non-performance of pensation based on such attendance. job duties or a reduction-in-force), or (bb) Subluxation means an incomplete when the physical requirements of such dislocation, off-centering, misalign- an assignment are altered so that they ment, fixation or abnormal spacing of exceed his or her established physical the vertebrae which must be demon- limitations. strable on any x-ray film to an indi- (y) Recurrence of medical condition vidual trained in the reading of x-rays. means a documented need for further (cc) Surviving spouse means the hus- medical treatment after release from band or wife living with or dependent treatment for the accepted condition for support upon a deceased employee or injury when there is no accom- at the time of his or her death, or liv- panying work stoppage. Continuous treatment for the original condition or ing apart for reasonable cause or be- injury is not considered a ‘‘need for cause of the deceased employee’s deser- further medical treatment after release tion. from treatment,’’ nor is an examina- (dd) Temporary aggravation of a pre- tion without treatment. existing condition means that factors (z) Representative means an individual of employment have directly caused properly authorized by a claimant in that condition to be more severe for a writing to act for the claimant in con- limited period of time and have left no nection with a claim or proceeding greater impairment than existed prior under the FECA or this part. to the employment injury. (aa) Student means an individual de- (ee) Traumatic injury means a condi- fined at 5 U.S.C. 8101(17). Two terms tion of the body caused by a specific used in that particular definition are event or incident, or series of events or further defined as follows: incidents, within a single workday or (1) Additional type of educational or shift. Such condition must be caused training institution means a technical, by external force, including stress or trade, vocational, business or profes- strain, which is identifiable as to time sional school accredited or licensed by and place of occurrence and member or the United States Government or a function of the body affected. State Government or any political sub- division thereof providing courses of § 10.6 What special statutory defini- tions apply to dependents and sur- not less than three months duration, vivors? that prepares the individual for a live- lihood in a trade, industry, vocation or (a) 5 U.S.C. 8133 provides that certain profession. benefits are payable to certain enumer- (2) Year beyond the high school level ated survivors of employees who have means: died from an injury sustained in the (i) The 12-month period beginning the performance of duty. month after the individual graduates (b) 5 U.S.C. 8148 also provides that from high school, provided he or she certain other benefits may be payable had indicated an intention to continue to certain family members of employ- schooling within four months of high ees who have been incarcerated due to school graduation, and each successive a felony conviction. 12-month period in which there is (c) 5 U.S.C. 8110(b) further provides school attendance or the payment of that any employee who is found to be
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eligible for a basic benefit shall be en- INFORMATION IN PROGRAM RECORDS titled to have such basic benefit aug- mented at a specified rate for certain § 10.10 Are all documents relating to persons who live in the beneficiary’s claims filed under the FECA consid- household or who are dependent upon ered confidential? the beneficiary for support. All records relating to claims for (d) 5 U.S.C. 8101, 8110, 8133 and 8148, benefits, including copies of such which define the nature of such survi- records maintained by an employer, vorship or dependency necessary to are considered confidential and may qualify a beneficiary for a survivor’s not be released, inspected, copied or benefit or an augmented benefit, apply otherwise disclosed except as provided to the provisions of this part. in the Freedom of Information Act and the Privacy Act of 1974. § 10.7 What forms are needed to proc- ess claims under the FECA? § 10.11 Who maintains custody and (a) Notice of injury, claims and cer- control of FECA records? tain specified reports shall be made on All records relating to claims for forms prescribed by OWCP. Employers benefits filed under the FECA, includ- shall not modify these forms or use ing any copies of such records main- substitute forms. Employers are ex- tained by an employing agency, are pected to maintain an adequate supply covered by the government-wide Pri- of the basic forms needed for the proper vacy Act system of records entitled recording and reporting of injuries. DOL/GOVT–1 (Office of Workers’ Com- pensation Programs, Federal Employ- Form No. Title ees’ Compensation Act File). This sys- (1) CA±1 ...... Federal Employee's Notice of Traumatic In- tem of records is maintained by and jury and Claim for Continuation of Pay/ under the control of OWCP, and, as Compensation such, all records covered by DOL/ (2) CA±2 ...... Notice of Occupational Disease and Claim for Compensation GOVT–1 are official records of OWCP. (3) CA±2a ...... Notice of Employee's Recurrence of Dis- The protection, release, inspection and ability and Claim for Pay/ Compensation copying of records covered by DOL/ (4) CA±5 ...... Claim for Compensation by Widow, Widower GOVT–1 shall be accomplished in ac- and/or Children (5) CA±5b ...... Claim for Compensation by Parents, Broth- cordance with the rules, guidelines and ers, Sisters, Grandparents, or Grand- provisions of this part, as well as those children contained in 29 CFR parts 70 and 71, (6) CA±6 ...... Official Superior's Report of Employee's and with the notice of the system of Death (7) CA±7 ...... Claim for Compensation Due to Traumatic records and routine uses published in Injury or Occupational Disease the FEDERAL REGISTER. All questions (8) CA±7a ...... Time Analysis Form relating to access/disclosure, and/or (9) CA±7b ...... Leave Buy Back (LBB) Worksheet/Certifi- amendment of FECA records main- cation and Election tained by OWCP or the employing (10) CA±16 .... Authorization of Examination and/or Treat- ment agency, are to be resolved in accord- (11) CA±17 .... Duty Status Report ance with this section. (12) CA±20 .... Attending Physician's Report § 10.12 How may a FECA claimant or (b) Copies of the forms listed in this beneficiary obtain copies of pro- paragraph are available for public in- tected records? spection at the Office of Workers’ Com- (a) A claimant seeking copies of his pensation Programs, Employment or her official FECA file should address Standards Administration, U.S. De- a request to the District Director of partment of Labor, Washington, DC the OWCP office having custody of the 20210. They may also be obtained from file. A claimant seeking copies of district offices, employers (i.e., safety FECA-related documents in the cus- and health offices, supervisors), and tody of the employer should follow the the Internet, at www.dol.gov./dol/esa/ procedures established by that agency. owcp.htm. (b)(1) While an employing agency [63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. may establish procedures that an in- 23, 1998] jured employee or beneficiary should
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follow in requesting access to docu- 1920, and 1922 of title 18, United States ments it maintains, any decision issued Code. Enforcement of these and other in response to such a request must criminal provisions that may apply to comply with the rules and regulations claims under the FECA are within the of the Department of Labor which gov- jurisdiction of the Department of Jus- ern all other aspects of safeguarding tice. these records. (b) In addition, administrative pro- (2) No employing agency has the au- ceedings may be initiated under the thority to issue determinations with Program Fraud Civil Remedies Act of respect to requests for the correction 1986 (PFCRA), 31 U.S.C. 3801–12, to im- or amendment of records contained in pose civil penalties and assessments or covered by DOL/GOVT–1. That au- against persons who make, submit, or thority is within the exclusive control present, or cause to be made, sub- of OWCP. Thus, any request for correc- mitted or presented, false, fictitious or tion or amendment received by an em- fraudulent claims or written state- ploying agency must be referred to ments to OWCP in connection with a OWCP for review and decision. claim under the FECA. The Depart- (3) Any administrative appeal taken ment of Labor’s regulations imple- from a denial issued by the employing menting the PFRCA are found at 29 agency or OWCP shall be filed with the CFR part 22. Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9. § 10.17 Is a beneficiary who defrauds the Government in connection with § 10.13 What process is used by a per- a claim for benefits still entitled to son who wants to correct FECA-re- those benefits? lated documents? When a beneficiary either pleads Any request to amend a record cov- guilty to or is found guilty on either ered by DOL/GOVT–1 should be di- Federal or State criminal charges of rected to the district office having cus- defrauding the Federal Government in tody of the official file. No employer connection with a claim for benefits, has the authority to issue determina- the beneficiary’s entitlement to any tions with regard to requests for the further compensation benefits will ter- correction of records contained in or minate effective the date either the covered by DOL/GOVT–1. Any request guilty plea is accepted or a verdict of for correction received by an employer guilty is returned after trial, for any must be referred to OWCP for review injury occurring on or before the date and decision. of such guilty plea or verdict. Termi- nation of entitlement under this sec- RIGHTS AND PENALTIES tion is not affected by any subsequent change in or recurrence of the bene- § 10.15 May compensation rights be ficiary’s medical condition. waived? No employer or other person may re- § 10.18 Can a beneficiary who is incar- quire an employee or other claimant to cerated based on a felony convic- enter into any agreement, either before tion still receive benefits? or after an injury or death, to waive (a) Whenever a beneficiary is incar- his or her right to claim compensation cerated in a State or Federal jail, pris- under the FECA. No waiver of com- on, penal institution or other correc- pensation rights shall be valid. tional facility due to a State or Fed- eral felony conviction, he or she for- § 10.16 What criminal penalties may be feits all rights to compensation bene- imposed in connection with a claim fits during the period of incarceration. under the FECA? A beneficiary’s right to compensation (a) A number of statutory provisions benefits for the period of his or her in- make it a crime to file a false or fraud- carceration is not restored after such ulent claim or statement with the Gov- incarceration ends, even though pay- ernment in connection with a claim ment of compensation benefits may re- under the FECA, or to wrongfully im- sume. pede a FECA claim. Included among (b) If the beneficiary has eligible de- these provisions are sections 287, 1001, pendents, OWCP will pay compensation
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to such dependents at a reduced rate tice of a possible work-related injury during the period of his or her incarcer- or disease. ation, by applying the percentages of 5 (2) OWCP may excuse failure to com- U.S.C. 8133(a)(1) through (5) to the ply with the three-year time require- beneficiary’s gross current entitlement ment because of truly exceptional cir- rather than to the beneficiary’s month- cumstances (for example, being held ly pay. prisoner of war). (c) If OWCP’s decision on entitlement (3) The claimant may withdraw his or is pending when the period of incarcer- her claim (but not the notice of injury) ation begins, and compensation is due by so requesting in writing to OWCP at for a period of time prior to such incar- any time before OWCP determines eli- ceration, payment for that period will gibility for benefits. Any continuation only be made to the beneficiary fol- of pay (COP) granted to an employee lowing his or her release. after a claim is withdrawn must be charged to sick or annual leave, or con- Subpart B—Filing Notices and sidered an overpayment of pay con- Claims; Submitting Evidence sistent with 5 U.S.C. 5584, at the em- ployee’s option. NOTICES AND CLAIMS FOR INJURY, DIS- (c) However, in cases of latent dis- EASE, AND DEATH—EMPLOYEE OR SUR- ability, the time for filing claim does VIVOR’S ACTIONS not begin to run until the employee has a compensable disability and is § 10.100 How and when is a notice of aware, or reasonably should have been traumatic injury filed? aware, of the causal relationship be- (a) To claim benefits under the tween the disability and the employ- FECA, an employee who sustains a ment (see 5 U.S.C. 8122(b)). work-related traumatic injury must give notice of the injury in writing on § 10.101 How and when is a notice of occupational disease filed? Form CA–1, which may be obtained from the employer or from the Internet (a) To claim benefits under the at www.dol.gov./dol/esa/owcp.htm. The FECA, an employee who has a disease employee must forward this notice to which he or she believes to be work-re- the employer. Another person, includ- lated must give notice of the condition ing the employer, may give notice of in writing on Form CA–2, which may be injury on the employee’s behalf. The obtained from the employer or from person submitting a notice shall in- the Internet at www.dol.gov./dol/esa/ clude the Social Security Number owcp.htm. The employee must forward (SSN) of the injured employee. this notice to the employer. Another (b) For injuries sustained on or after person, including the employer, may do September 7, 1974, a notice of injury so on the employee’s behalf. The person must be filed within three years of the submitting a notice shall include the injury. (The form contains the nec- Social Security Number (SSN) of the essary words of claim.) The require- injured employee. The claimant may ments for filing notice are further de- withdraw his or her claim (but not the scribed in 5 U.S.C. 8119. Also see § 10.205 notice of occupational disease) by so concerning time requirements for fil- requesting in writing to OWCP at any ing claims for continuation of pay. time before OWCP determines eligi- (1) If the claim is not filed within bility for benefits. three years, compensation may still be (b) For occupational diseases sus- allowed if notice of injury was given tained as a result of exposure to inju- within 30 days or the employer had ac- rious work factors that occurs on or tual knowledge of the injury or death after September 7, 1974, a notice of oc- within 30 days after occurrence. This cupational disease must be filed within knowledge may consist of written three years of the onset of the condi- records or verbal notification. An entry tion. (The form contains the necessary into an employee’s medical record may words of claim.) The requirements for also satisfy this requirement if it is timely filing are described in sufficient to place the employer on no- § 10.100(b)(1) through (3).
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(c) However, in cases of latent dis- § 10.103 How and when is a claim for ability, the time for filing claim does permanent impairment filed? not begin to run until the employee Form CA–7 is used to claim com- has a compensable disability and is pensation for impairment to a body aware, or reasonably should have been part covered under the schedule estab- aware, of the causal relationship be- lished by 5 U.S.C. 8107. If Form CA–7 tween the disability and the employ- has already been filed to claim dis- ment (see 5 U.S.C. 8122(b)). ability compensation, an employee may file a claim for such impairment § 10.102 How and when is a claim for by sending a letter to OWCP which wage loss compensation filed? specifies the nature of the benefit (a) Form CA–7 is used to claim com- claimed. pensation for periods of disability not § 10.104 How and when is a claim for covered by COP. recurrence filed? (1) An employee who is disabled with (a) A recurrence should be reported loss of pay for more than three cal- on Form CA–2a if it causes the em- endar days due to an injury, or some- ployee to lose time from work and one acting on his or her behalf, must incur a wage loss, or if the employee file Form CA–7 before compensation experiences a renewed need for treat- can be paid. ment after previously being released (2) The employee shall complete the from care. However, a notice of recur- front of Form CA–7 and submit the rence should not be filed when a new form to the employer for completion injury, new occupational disease, or and transmission to OWCP. The form new event contributing to an already- should be completed as soon as pos- existing occupational disease has oc- sible, but no more than 14 calendar curred. In these instances, the em- days after the date pay stops due to the ployee should file Form CA–1 or CA–2. injury or disease. (b) The employee has the burden of (3) The requirements for filing claims establishing by the weight of reliable, are further described in 5 U.S.C. 8121. probative and substantial evidence that the recurrence of disability is (b) Additional Forms CA–7 are used causally related to the original injury. to claim compensation for additional (1) The employee must include a de- periods of disability after the first tailed factual statement as described Form CA–7 is submitted to OWCP. on Form CA–2a. The employer may (1) It is the employee’s responsibility submit comments concerning the em- to submit Form CA–7. Without receipt ployee’s statement. of such claim, OWCP has no knowledge (2) The employee should arrange for of continuing wage loss. Therefore, the submittal of a detailed medical re- while disability continues, the em- port from the attending physician as ployee should submit a claim on Form described on Form CA–2a. The em- CA–7 each two weeks until otherwise ployee should also submit, or arrange instructed by OWCP. for the submittal of, similar medical (2) The employee shall complete the reports for any examination and/or front of Form CA–7 and submit the treatment received after returning to form to the employer for completion work following the original injury. and transmission to OWCP. § 10.105 How and when is a notice of (3) The employee is responsible for death and claim for benefits filed? submitting, or arranging for the sub- mittal of, medical evidence to OWCP (a) If an employee dies from a work- which establishes both that disability related traumatic injury or an occupa- continues and that the disability is due tional disease, any survivor may file a claim for death benefits using Form to the work-related injury. Form CA–20 CA–5 or CA–5b, which may be obtained is attached to Form CA–7 for this pur- from the employer or from the Internet pose. at www.dol.gov./dol/esa/owcp.htm. The [63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. survivor must provide this notice in 23, 1998] writing and forward it to the employer.
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Another person, including the em- to the employee, along with copies of ployer, may do so on the survivor’s be- both sides of Form CA–1 or Form CA–2. half. The survivor may also submit the (b) The employer must complete and completed Form CA–5 or CA–5b di- transmit the form to OWCP within 10 rectly to OWCP. The survivor shall dis- working days after receipt of notice close the SSNs of all survivors on from the employee if the injury or dis- whose behalf claim for benefits is made ease will likely result in: in addition to the SSN of the deceased (1) A medical charge against OWCP; employee. The survivor may withdraw (2) Disability for work beyond the his or her claim (but not the notice of day or shift of injury; death) by so requesting in writing to (3) The need for more than two ap- OWCP at any time before OWCP deter- pointments for medical examination mines eligibility for benefits. and/or treatment on separate days, (b) For deaths that occur on or after leading to time loss from work; September 7, 1974, a notice of death (4) Future disability; must be filed within three years of the (5) Permanent impairment; or death. The form contains the necessary (6) Continuation of pay pursuant to 5 words of claim. The requirements for U.S.C. 8118. timely filing are described in (c) The employer should not wait for § 10.100(b)(1) through (3). submittal of supporting evidence be- (c) However, in cases of death due to fore sending the form to OWCP. latent disability, the time for filing the (d) If none of the conditions in para- claim does not begin to run until the graph (b) of this section applies, the survivor is aware, or reasonably should Form CA–1 or CA–2 shall be retained as have been aware, of the causal rela- a permanent record in the Employee tionship between the death and the em- Medical Folder in accordance with the ployment (see 5 U.S.C. 8122(b)). guidelines established by the Office of (d) The filing of a notice of injury or Personnel Management. occupational disease will satisfy the time requirements for a death claim § 10.111 What should the employer do based on the same injury or occupa- when an employee files an initial tional disease. If an injured employee claim for compensation due to dis- or someone acting on the employee’s ability or permanent impairment? behalf does not file a claim before the (a) When an employee is disabled by employee’s death, the right to claim a work-related injury and loses pay for compensation for disability other than more than three calendar days, or has medical expenses ceases and does not a permanent impairment or serious dis- survive. figurement as described in 5 U.S.C. (e) A survivor must be alive to re- 8107, the employer shall furnish the ceive any payment; there is no vested employee with Form CA–7 for the pur- right to such payment. A report as de- pose of claiming compensation. scribed in § 10.414 of this part must be (b) If the employee is receiving con- filed once each year to support con- tinuation of pay (COP), the employer tinuing payments of compensation. should give Form CA–7 to the employee NOTICES AND CLAIMS FOR INJURY, DIS- by the 30th day of the COP period and EASE, AND DEATH—EMPLOYER’S AC- submit the form to OWCP by the 40th TIONS day of the COP period. If the employee has not returned the form to the em- § 10.110 What should the employer do ployer by the 40th day of the COP pe- when an employee files a notice of riod, the employer should ask him or traumatic injury or occupational her to submit it as soon as possible. disease? (c) Upon receipt of Form CA–7 from (a) The employer shall complete the the employee, or someone acting on his agency portion of Form CA–1 (for trau- or her behalf, the employer shall com- matic injury) or CA–2 (for occupational plete the appropriate portions of the disease) no more than 10 working days form. As soon as possible, but no more after receipt of notice from the em- than five working days after receipt ployee. The employer shall also com- from the employee, the employer shall plete the Receipt of Notice and give it forward the completed Form CA–7 and
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any accompanying medical report to EVIDENCE AND BURDEN OF PROOF OWCP. § 10.115 What evidence is needed to es- § 10.112 What should the employer do tablish a claim? when an employee files a claim for Forms CA–1, CA–2, CA–5 and CA–5b continuing compensation due to describe the basic evidence required. disability? OWCP may send any request for addi- (a) If the employee continues in a tional evidence to the claimant and to leave-without-pay status due to a his or her representative, if any. Evi- work-related injury after the period of dence should be submitted in writing. compensation initially claimed on The evidence submitted must be reli- Form CA–7, the employer shall furnish able, probative and substantial. Each the employee with another Form CA–7 claim for compensation must meet five for the purpose of claiming continuing requirements before OWCP can accept compensation. it. These requirements, which the em- (b) Upon receipt of Form CA–7 from ployee must establish to meet his or the employee, or someone acting on his her burden of proof, are as follows: or her behalf, the employer shall com- (a) The claim was filed within the plete the appropriate portions of the time limits specified by the FECA; form. As soon as possible, but no more (b) The injured person was, at the time of injury, an employee of the than five working days after receipt United States as defined in 5 U.S.C. from the employee, the employer shall 8101(1) and § 10.5(h) of this part; forward the completed Form CA–7 and (c) The fact that an injury, disease or any accompanying medical report to death occurred; OWCP. (d) The injury, disease or death oc- [63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. curred while the employee was in the 23, 1998] performance of duty; and (e) The medical condition for which § 10.113 What should the employer do compensation or medical benefits is when an employee dies from a claimed is causally related to the work-related injury or disease? claimed injury, disease or death. Nei- (a) The employer shall immediately ther the fact that the condition mani- report a death due to a work-related fests itself during a period of Federal traumatic injury or occupational dis- employment, nor the belief of the ease to OWCP by telephone, telegram, claimant that factors of employment or facsimile (fax). No more than 10 caused or aggravated the condition, is working days after notification of the sufficient in itself to establish causal death, the employer shall complete and relationship. send Form CA–6 to OWCP. (f) In all claims, the claimant is re- (b) When possible, the employer shall sponsible for submitting, or arranging furnish a Form CA–5 or CA–5b to all for submittal of, a medical report from the attending physician. For wage loss persons likely to be entitled to com- benefits, the claimant must also sub- pensation for death of an employee. mit medical evidence showing that the The employer should also supply infor- condition claimed is disabling. The mation about completing and filing the rules for submitting medical reports form. are found in §§ 10.330 through 10.333. (c) The employer shall promptly transmit Form CA–5 or CA–5b to § 10.116 What additional evidence is OWCP. The employer shall also needed in cases based on occupa- promptly transmit to OWCP any other tional disease? claim or paper submitted which ap- (a) The employee must submit the pears to claim compensation on ac- specific detailed information described count of death. on Form CA–2 and on any checklist
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(Form CA–35, A–H) provided by the em- ability. This authority is in addition to ployer. OWCP has developed these that given in § 10.118(a). However, the checklists to address particular occu- provisions of the Privacy Act apply to pational diseases. The medical report any endeavor by the employer to ascer- should also include the information tain the facts of the case (see §§ 10.10 specified on the checklist for the par- and 10.11). ticular disease claimed. (c) The employer does not have the (b) The employer should submit the right, except as provided in subpart C specific detailed information described of this part, to actively participate in on Form CA–2 and on any checklist the claims adjudication process. pertaining to the claimed disease. § 10.119 What action will OWCP take § 10.117 What happens if, in any claim, with respect to information sub- the employer contests any of the mitted by the employer? facts as stated by the claimant? OWCP will consider all evidence sub- (a) An employer who has reason to mitted appropriately, and OWCP will disagree with any aspect of the claim- inform the employee, the employee’s ant’s report shall submit a statement representative, if any, and the em- to OWCP that specifically describes the ployer of any action taken. Where an factual allegation or argument with employer contests a claim within 30 which it disagrees and provide evidence days of the initial submittal and the or argument to support its position. claim is later approved, OWCP will no- The employer may include supporting tify the employer of the rationale for documents such as witness statements, approving the claim. medical reports or records, or any other relevant information. § 10.120 May a claimant submit addi- (b) Any such statement shall be sub- tional evidence? mitted to OWCP with the notice of A claimant or a person acting on his traumatic injury or death, or within 30 or her behalf may submit to OWCP at calendar days from the date notice of any time any other evidence relevant occupational disease or death is re- to the claim. ceived from the claimant. If the em- ployer does not submit a written expla- § 10.121 What happens if OWCP needs nation to support the disagreement, more evidence from the claimant? OWCP may accept the claimant’s re- If the claimant submits factual evi- port of injury as established. The em- dence, medical evidence, or both, but ployer may not use a disagreement OWCP determines that this evidence is with an aspect of the claimant’s report not sufficient to meet the burden of to delay forwarding the claim to OWCP proof, OWCP will inform the claimant or to compel or induce the claimant to of the additional evidence needed. The change or withdraw the claim. claimant will be allowed at least 30 days to submit the evidence required. § 10.118 Does the employer participate OWCP is not required to notify the in the claims process in any other claimant a second time if the evidence way? submitted in response to its first re- (a) The employer is responsible for quest is not sufficient to meet the bur- submitting to OWCP all relevant and den of proof. probative factual and medical evidence in its possession, or which it may ac- DECISIONS ON ENTITLEMENT TO BENEFITS quire through investigation or other means. Such evidence may be sub- § 10.125 How does OWCP determine mitted at any time. entitlement to benefits? (b) The employer may ascertain the (a) In reaching any decision with re- events surrounding an injury and the spect to FECA coverage or entitle- extent of disability where it appears ment, OWCP considers the claim pre- that an employee who alleges total dis- sented by the claimant, the report by ability may be performing other work, the employer, and the results of such or may be engaging in activities which investigation as OWCP may deem nec- would indicate less than total dis- essary.
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(b) OWCP claims staff apply the law, (c) The FECA excludes certain per- the regulations, and its procedures to sons from eligibility for COP. COP can- the facts as reported or obtained upon not be authorized for members of these investigation. They also apply deci- excluded groups, which include but are sions of the Employees’ Compensation not limited to: persons rendering per- Appeals Board and administrative deci- sonal service to the United States simi- sions of OWCP as set forth in FECA lar to the service of a civil officer or Program Memoranda. employee of the United States, without pay or for nominal pay; volunteers (for § 10.126 What does the decision con- instance, in the Civil Air Patrol and tain? Peace Corps); Job Corps and Youth The decision shall contain findings of Conservation Corps enrollees; individ- fact and a statement of reasons. It is uals in work-study programs, and accompanied by information about the grand or petit jurors (unless otherwise claimant’s appeal rights, which may Federal employees). include the right to a hearing, a recon- sideration, and/or a review by the Em- ELIGIBILITY FOR COP ployees’ Compensation Appeals Board. (See subpart G of this part.) § 10.205 What conditions must be met to receive COP? § 10.127 To whom is the decision sent? (a) To be eligible for COP, a person A copy of the decision shall be must: mailed to the employee’s last known (1) Have a ‘‘traumatic injury’’ as de- address. If the employee has a des- fined at § 10.5(ee) which is job-related ignated representative before OWCP, a and the cause of the disability, and/or copy of the decision will also be mailed the cause of lost time due to the need to the representative. Notification to for medical examination and treat- either the employee or the representa- ment; tive will be considered notification to (2) File Form CA–1 within 30 days of both. A copy of the decision will also the date of the injury (but if that form be sent to the employer. is not available, using another form would not alone preclude receipt); and (3) Begin losing time from work due Subpart C—Continuation of Pay to the traumatic injury within 45 days § 10.200 What is continuation of pay? of the injury. (b) OWCP may find that the em- (a) For most employees who sustain a ployee is not entitled to COP for other traumatic injury, the FECA provides reasons consistent with the statute that the employer must continue the (see § 10.220). employee’s regular pay during any pe- riods of resulting disability, up to a § 10.206 May an employee who uses maximum of 45 calendar days. This is leave after an injury later decide to called continuation of pay, or COP. The use COP instead? employer, not OWCP, pays COP. Unlike On Form CA–1, an employee may wage loss benefits, COP is subject to elect to use accumulated sick or an- taxes and all other payroll deductions nual leave, or leave advanced by the that are made from regular income. agency, instead of electing COP. The (b) The employer must continue the employee can change the election be- pay of an employee who is eligible for tween leave and COP for prospective COP, and may not require the em- periods at any point while eligibility ployee to use his or her own sick or an- for COP remains. The employee may nual leave, unless the provisions of also change the election for past peri- §§ 10.200(c), 10.220, or § 10.222 apply. How- ods and request COP in lieu of leave al- ever, while continuing the employee’s ready taken for the same period. In ei- pay, the employer may controvert the ther situation, the following provisions employee’s COP entitlement pending a apply: final determination by OWCP. OWCP (a) The request must be made to the has the exclusive authority to deter- employer within one year of the date mine questions of entitlement and all the leave was used or the date of the other issues relating to COP. written approval of the claim by OWCP
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(if written approval is issued), which- is provided to the employer within 10 ever is later. calendar days after filing the claim for (b) Where the employee is otherwise COP. eligible, the agency shall restore leave (c) Ensure that relevant medical evi- taken in lieu of any of the 45 COP days. dence is submitted to OWCP, and co- Where any of the 45 COP days remain operate with OWCP in developing the unused, the agency shall continue pay claim. prospectively. (d) Ensure that the treating physi- (c) The use of leave may not be used cian specifies work limitations and to delay or extend the 45-day COP pe- provides them to the employer and/or riod or to otherwise affect the time representatives of OWCP. limitation as provided by 5 U.S.C. 8117. (e) Provide to the treating physician Therefore, any leave used during the a description of any specific alter- period of eligibility counts towards the native positions offered the employee, 45-day maximum entitlement to COP. and ensure that the treating physician responds promptly to the employer § 10.207 May an employee who returns to work, then stops work again due and/or OWCP, with an opinion as to to the effects of the injury, receive whether and how soon the employee COP? could perform that or any other spe- cific position. If the employee recovers from dis- ability and returns to work, then be- § 10.211 What are the employer’s re- comes disabled again and stops work, sponsibilities in COP cases? the employer shall pay any of the 45 days of entitlement to COP not used Once the employer learns of a trau- during the initial period of disability matic injury sustained by an employee, where: it shall: (a) The employee completes Form (a) Provide a Form CA–1 and Form CA–2a and elects to receive regular CA–16 to authorize medical care in ac- pay; cordance with § 10.300. Failure to do so (b) OWCP did not deny the original may mean that OWCP will not uphold claim for disability; any termination of COP by the em- (c) The disability recurs and the em- ployer. ployee stops work within 45 days of the (b) Advise the employee of the right time the employee first returned to to receive COP, and the need to elect work following the initial period of dis- among COP, annual or sick leave or ability; and leave without pay, for any period of (d) Pay has not been continued for disability. the entire 45 days. (c) Inform the employee of any deci- sion to controvert COP and/or termi- RESPONSIBILITIES nate pay, and the basis for doing so. (d) Complete Form CA–1 and trans- § 10.210 What are the employee’s re- mit it, along with all other available sponsibilities in COP cases? pertinent information, (including the An employee who sustains a trau- basis for any controversion), to OWCP matic injury which he or she considers within 10 working days after receiving disabling, or someone authorized to act the completed form from the employee. on his or her behalf, must take the fol- lowing actions to ensure continuing CALCULATION OF COP eligibility for COP. The employee must: § 10.215 How does OWCP compute the (a) Complete and submit Form CA–1 number of days of COP used? to the employing agency as soon as COP is payable for a maximum of 45 possible, but no later than 30 days from calendar days, and every day used is the date the traumatic injury occurred. counted toward this maximum. The (b) Ensure that medical evidence sup- following rules apply: porting disability resulting from the (a) Time lost on the day or shift of claimed traumatic injury, including a the injury does not count toward COP. statement as to when the employee can (Instead, the agency must keep the em- return to his or her date of injury job, ployee in a pay status for that period);
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(b) The first COP day is the first day year (or of the appointment), the week- disability begins following the date of ly pay rate is the hourly pay rate (A) in injury (providing it is within the 45 effect on the date of injury multiplied days following the date of injury), ex- by (×) the number of hours worked each cept where the injury occurs before the week (B): A × B = Weekly Pay Rate. beginning of the work day or shift, in (2) For part-time workers (permanent which case the date of injury is or temporary) who do not work the charged to COP; same number of hours each week, but (c) Any part of a day or shift (except who do work each week of the year (or for the day of the injury) counts as a period of appointment), the weekly pay full day toward the 45 calendar day rate is an average of the weekly earn- total; ings, established by dividing (÷) the (d) Regular days off are included if total earnings (excluding overtime) COP has been used on the regular work from the year immediately preceding days immediately preceding or fol- the injury (A) by the number of weeks lowing the regular day(s) off, and med- (or partial weeks) worked in that year ical evidence supports disability; and (B): A ÷ B = Weekly Pay Rate. (e) Leave used during a period when (3) For intermittent and seasonal COP is otherwise payable is counted to- workers, whether permanent or tem- ward the 45-day COP maximum as if porary, who do not work either the the employee had been in a COP status. same number of hours or every week of (f) For employees with part-time or the year (or period of appointment), intermittent schedules, all calendar the weekly pay rate is the average days on which medical evidence indi- weekly earnings established by divid- cates disability are counted as COP ing (÷) the total earnings during the days, regardless of whether the em- full 12-month period immediately pre- ployee was or would have been sched- ceding the date of injury (excluding uled to work on those days. The rate at overtime) (A), by the number of weeks which COP is paid for these employees (or partial weeks) worked during that is calculated according to § 10.216(b). year (B) (that is, A ÷ B); or 150 times the average daily wage earned in the [63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998] employment during the days employed within the full year immediately pre- § 10.216 How is the pay rate for COP ceding the date of injury divided by 52 calculated? weeks, whichever is greater. The employer shall calculate COP [63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. using the period of time and the week- 23, 1998] ly pay rate. (a) The pay rate for COP purposes is § 10.217 Is COP charged if the em- equal to the employee’s regular ‘‘week- ployee continues to work, but in a ly’’ pay (the average of the weekly pay different job that pays less? over the preceding 52 weeks). If the employee cannot perform the (1) The pay rate excludes overtime duties of his or her regular position, pay, but includes other applicable but instead works in another job with extra pay except to the extent prohib- different duties with no loss in pay, ited by law. then COP is not chargeable. COP must (2) Changes in pay or salary (for ex- be paid and the days counted against ample, promotion, demotion, within- the 45 days authorized by law whenever grade increases, termination of a tem- an actual reduction of pay results from porary detail, etc.) which would have the injury, including a reduction of pay otherwise occurred during the 45-day for the employee’s normal administra- period are to be reflected in the weekly tive workweek that results from a pay determination. change or diminution in his or her du- (b) The weekly pay for COP purposes ties following an injury. However, this is determined according to the fol- does not include a reduction of pay lowing formulas: that is due solely to an employer being (1) For full or part-time workers (per- prohibited by law from paying extra manent or temporary) who work the pay to an employee for work he or she same number of hours each week of the does not actually perform.
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CONTROVERSION AND TERMINATION OF stated retroactive to the date of termi- COP nation; (2) The medical evidence from the § 10.220 When is an employer not re- treating physician shows that the em- quired to pay COP? ployee is not disabled from his or her An employer shall continue the reg- regular position; ular pay of an eligible employee with- (3) Medical evidence from the treat- out a break in time for up to 45 cal- ing physician shows that the employee endar days, except when, and only is not totally disabled, and the em- when: ployee refuses a written offer of a suit- (a) The disability was not caused by able alternative position which is ap- a traumatic injury; proved by the attending physician. If (b) The employee is not a citizen of OWCP later determines that the posi- the United States or Canada; tion was not suitable, OWCP will direct (c) No written claim was filed within the employer to grant the employee 30 days from the date of injury; COP retroactive to the termination (d) The injury was not reported until date. after employment has been terminated; (4) The employee returns to work (e) The injury occurred off the em- with no loss of pay; ploying agency’s premises and was oth- (5) The employee’s period of employ- erwise not within the performance of ment expires or employment is other- official duties; wise terminated (as established prior (f) The injury was caused by the em- to the date of injury); ployee’s willful misconduct, intent to (6) OWCP directs the employer to injure or kill himself or herself or an- stop COP; and/or other person, or was proximately (7) COP has been paid for 45 calendar caused by intoxication by alcohol or il- days. legal drugs; or (b) An employer may not interrupt or (g) Work did not stop until more than stop COP to which the employee is oth- 45 days following the injury. erwise entitled because of a discipli- [63 FR 65306, Nov. 25, 1998; 64 FR 12684, Mar. nary action, unless a preliminary no- 12, 1999] tice was issued to the employee before the date of injury and the action be- § 10.221 How is a claim for COP con- comes final or otherwise takes effect troverted? during the COP period. When the employer stops an employ- (c) An employer cannot otherwise ee’s pay for one of the reasons cited in stop COP unless it does so for one of § 10.220, the employer must controvert the reasons found in this section or the claim for COP on Form CA–1, ex- § 10.220. Where an employer stops COP, plaining in detail the basis for the re- it must file a controversion with fusal. The final determination on enti- OWCP, setting forth the basis on which tlement to COP always rests with it terminated COP, no later than the OWCP. effective date of the termination.
§ 10.222 When may an employer termi- § 10.223 Are there other circumstances nate COP which has already begun? under which OWCP will not author- (a) Where the employer has contin- ize payment of COP? ued the pay of the employee, it may be When OWCP finds that an employee stopped only when at least one of the or his or her representative refuses or following circumstances is present: obstructs a medical examination re- (1) Medical evidence which on its face quired by OWCP, the right to COP is supports disability due to a work-re- suspended until the refusal or obstruc- lated injury is not received within 10 tion ceases. COP already paid or pay- calendar days after the claim is sub- able for the period of suspension is for- mitted (unless the employer’s own in- feited. If already paid, the COP may be vestigation shows disability to exist). charged to annual or sick leave or con- Where the medical evidence is later sidered an overpayment of pay con- provided, however, COP shall be rein- sistent with 5 U.S.C. 5584.
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§ 10.224 What happens if OWCP finds cian may be in private practice, includ- that the employee is not entitled to ing a health maintenance organization COP after it has been paid? (HMO), or employed by a Federal agen- Where OWCP finds that the employee cy such as the Department of the is not entitled to COP after it has been Army, Navy, Air Force, or Veterans Af- paid, the employee may chose to have fairs. Any qualified physician may pro- the time charged to annual or sick vide initial treatment of a work-re- leave, or considered an overpayment of lated injury in an emergency. See also pay under 5 U.S.C. 5584. The employer § 10.825(b). must correct any deficiencies in COP as directed by OWCP. § 10.301 May the physician designated on Form CA–16 refer the employee to another medical specialist or Subpart D—Medical and Related medical facility? Benefits The physician designated on Form EMERGENCY MEDICAL CARE CA–16 may refer the employee for fur- ther examination, testing, or medical § 10.300 What are the basic rules for care. OWCP will pay this physician or authorizing emergency medical facility’s bill on the authority of Form care? CA–16. The employer should not issue a (a) When an employee sustains a second Form CA–16. work-related traumatic injury that re- quires medical examination, medical § 10.302 Should the employer author- treatment, or both, the employer shall ize medical care if he or she doubts authorize such examination and/or that the injury occurred, or that it treatment by issuing a Form CA–16. is work-related? This form may be used for occupational If the employer doubts that the in- disease or illness only if the employer jury occurred, or that it is work-re- has obtained prior permission from lated, he or she should authorize med- OWCP. ical care by completing Form CA–16 (b) The employer shall issue Form and checking block 6B of the form. If CA–16 within four hours of the claimed the medical and factual evidence sent injury. If the employer gives verbal au- to OWCP shows that the condition thorization for such care, he or she treated is not work-related, OWCP will should issue a Form CA–16 within 48 notify the employee, the employer, and hours. The employer is not required to the physician or hospital that OWCP issue a Form CA–16 more than one will not authorize payment for any fur- week after the occurrence of the ther treatment. claimed injury. The employer may not authorize examination or medical or § 10.303 Should the employer use a other treatment in any case that Form CA–16 to authorize medical OWCP has disallowed. testing when an employee is ex- (c) Form CA–16 must contain the full posed to a workplace hazard just name and address of the qualified phy- once? sician or qualified medical facility au- (a) Simple exposure to a workplace thorized to provide service. The au- hazard, such as an infectious agent, thorizing official must sign and date does not constitute a work-related in- the form and must state his or her jury entitling an employee to medical title. Form CA–16 authorizes treatment treatment under the FECA. The em- for 60 days from the date of issuance, ployer therefore should not use a Form unless OWCP terminates the authoriza- CA–16 to authorize medical testing for tion sooner. an employee who has merely been ex- (d) The employer should advise the posed to a workplace hazard, unless the employee of the right to his or her ini- employee has sustained an identifiable tial choice of physician. The employer injury or medical condition as a result shall allow the employee to select a of that exposure. OWCP will authorize qualified physician, after advising him preventive treatment only under cer- or her of those physicians excluded tain well-defined circumstances (see under subpart I of this part. The physi- § 10.313).
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(b) Employers may be required under may require the use of generic equiva- other statutes or regulations to pro- lents where they are available. vide their employees with medical test- ing and/or other services in situations § 10.311 What are the special rules for described in paragraph (a) of this sec- the services of chiropractors? tion. For example, regulations issued (a) The services of chiropractors that by the Occupational Safety and Health may be reimbursed are limited by the Administration at 29 CFR chapter XVII FECA to treatment to correct a spinal require employers to provide their em- subluxation. The costs of physical and ployees with medical consultations related laboratory tests performed by and/or examinations when they either or required by a chiropractor to diag- exhibit symptoms consistent with ex- nose such a subluxation are also pay- posure to a workplace hazard, or when able. an identifiable event such as a spill, (b) In accordance with 5 U.S.C. leak or explosion occurs and results in 8101(3), a diagnosis of spinal ‘‘sub- the likelihood of exposure to a work- luxation as demonstrated by X-ray to place hazard. In addition, 5 U.S.C. 7901 exist’’ must appear in the chiroprac- authorizes employers to establish tor’s report before OWCP can consider health programs whose staff can per- payment of a chiropractor’s bill. form tests for workplace hazards, coun- (c) A chiropractor may interpret his sel employees for exposure or feared or her x-rays to the same extent as any exposure to such hazards, and provide other physician. To be given any health care screening and other associ- weight, the medical report must state ated services. that x-rays support the finding of spi- § 10.304 Are there any exceptions to nal subluxation. OWCP will not nec- these procedures for obtaining essarily require submittal of the x-ray, medical care? or a report of the x-ray, but the report In cases involving emergencies or un- must be available for submittal on re- usual circumstances, OWCP may au- quest. thorize treatment in a manner other (d) A chiropractor may also provide than as stated in this subpart. services in the nature of physical ther- apy under the direction of a qualified MEDICAL TREATMENT AND RELATED physician. ISSUES § 10.312 What are the special rules for § 10.310 What are the basic rules for the services of clinical psycholo- obtaining medical care? gists? (a) The employee is entitled to re- A clinical psychologist may serve as ceive all medical services, appliances a physician only within the scope of his or supplies which a qualified physician or her practice as defined by State law. prescribes or recommends and which Therefore, a clinical psychologist may OWCP considers necessary to treat the not serve as a physician for conditions work-related injury. The employee that include a physical component un- need not be disabled to receive such less the applicable State law allows treatment. If there is any doubt as to clinical psychologists to treat physical whether a specific service, appliance or conditions. A clinical psychologist may supply is necessary to treat the work- also perform testing, evaluation and related injury, the employee should other services under the direction of a consult OWCP prior to obtaining it. qualified physician. (b) Any qualified physician or quali- fied hospital may provide such serv- § 10.313 Will OWCP pay for preventive ices, appliances and supplies. A quali- treatment? fied provider of medical support serv- The FECA does not authorize pay- ices may also furnish appropriate serv- ment for preventive measures such as ices, appliances, and supplies. OWCP vaccines and inoculations, and in gen- may apply a test of cost-effectiveness eral, preventive treatment may be a re- to appliances and supplies. With re- sponsibility of the employing agency spect to prescribed medications, OWCP under the provisions of 5 U.S.C. 7901
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(see § 10.303). However, OWCP can au- been determined to be medically nec- thorize treatment for the following essary and are provided by a home conditions, even though such treat- health aide, licensed practical nurse, or ment is designed, in part, to prevent similarly trained individual. further injury: (b) A home health aide, licensed prac- (a) Complications of preventive tical nurse, or similarly trained indi- measures which are provided or spon- vidual is better able to provide quality sored by the agency, such as an adverse personal care services, including assist- reaction to prophylactic immuniza- ance in feeding, bathing, and using the tion. toilet. In the past, provision of supple- (b) Actual or probable exposure to a mental compensation directly to in- known contaminant due to an injury, jured employees may have encouraged thereby requiring disease-specific family members to take on these re- measures against infection. Examples sponsibilities even though they may include the provision of tetanus anti- not have been trained to provide such toxin or booster toxoid injections for services. By paying for the services puncture wounds; administration of ra- under section 8103, OWCP can better bies vaccine for a bite from a rabid or determine whether the services pro- potentially rabid animal; or appro- vided are necessary and/or adequate to priate measures where exposure to meet the needs of the injured em- human immunodeficiency virus (HIV) ployee. In addition, a system requiring has occurred. the personal care provider to submit a (c) Conversion of tuberculin reaction bill to OWCP, where the amount billed from negative to positive following ex- will be subject to OWCP’s fee schedule, posure to tuberculosis in the perform- will result in greater fiscal account- ance of duty. In this situation, the ap- ability. propriate therapy may be authorized. (d) Where injury to one eye has re- § 10.315 Will OWCP pay for transpor- sulted in loss of vision, periodic exam- tation to obtain medical treatment? ination of the uninjured eye to detect The employee is entitled to reim- possible sympathetic involvement of bursement of reasonable and necessary the uninjured eye at an early stage. expenses, including transportation needed to obtain authorized medical § 10.314 Will OWCP pay for the serv- services, appliances or supplies. To de- ices of an attendant? termine what is a reasonable distance Yes, OWCP will pay for the services to travel, OWCP will consider the of an attendant up to a maximum of availability of services, the employee’s $1,500 per month, where the need for condition, and the means of transpor- such services has been medically docu- tation. Generally, 25 miles from the mented. In the exercise of the discre- place of injury, the work site, or the tion afforded by 5 U.S.C. 8111(a), the Di- employee’s home, is considered a rea- rector has determined that, except sonable distance to travel. The stand- where payments were being made prior ard form designated for Federal em- to January 4, 1999, direct payments to ployees to claim travel expenses should the claimant to cover such services be used to seek reimbursement under will no longer be made. Rather, the this section. cost of providing attendant services will be paid under section 8103 of the § 10.316 After selecting a treating phy- Act, and medical bills for these serv- sician, may an employee choose to ices will be considered under § 10.801. be treated by another physician in- This decision is based on the following stead? factors: (a) When the physician originally se- (a) The additional payments author- lected to provide treatment for a work- ized under section 8111(a) should not be related injury refers the employee to a necessary since OWCP will authorize specialist for further medical care, the payment for personal care services employee need not consult OWCP for under 5 U.S.C. 8103, whether or not approval. In all other instances, how- such care includes medical services, so ever, the employee must submit a writ- long as the personal care services have ten request to OWCP with his or her
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reasons for desiring a change of physi- to make an examination (see § 10.502). cian. This is called a referee examination. (b) OWCP will approve the request if OWCP will select a physician who is it determines that the reasons sub- qualified in the appropriate specialty mitted are sufficient. Requests that are and who has had no prior connection often approved include those for trans- with the case. The employee is not en- fer of care from a general practitioner titled to have anyone present at the ex- to a physician who specializes in treat- amination unless OWCP decides that ing conditions like the work-related exceptional circumstances exist. For one, or the need for a new physician example, where a hearing-impaired em- when an employee has moved. The em- ployee needs an interpreter, the pres- ployer may not authorize a change of ence of an interpreter would be al- physicians. lowed. Also, a case file may be sent for referee medical review where there is DIRECTED MEDICAL EXAMINATIONS no need for an actual examination, or where the employee is deceased. § 10.320 Can OWCP require an em- ployee to be examined by another § 10.322 Who pays for second opinion physician? and referee examinations? OWCP sometimes needs a second OWCP will pay second opinion and opinion from a medical specialist. The referee medical specialists directly. employee must submit to examination OWCP will reimburse the employee all by a qualified physician as often and at necessary and reasonable expenses inci- such times and places as OWCP con- dent to such an examination, including siders reasonably necessary. The em- transportation costs and actual wages ployee may have a qualified physician, lost for the time needed to submit to paid by him or her, present at such ex- an examination required by OWCP. amination. However, the employee is not entitled to have anyone else § 10.323 What are the penalties for fail- present at the examination unless ing to report for or obstructing a OWCP decides that exceptional cir- second opinion or referee examina- cumstances exist. For example, where tion? a hearing-impaired employee needs an If an employee refuses to submit to interpreter, the presence of an inter- or in any way obstructs an examina- preter would be allowed. Also, OWCP tion required by OWCP, his or her right may send a case file for second opinion to compensation under the FECA is review where actual examination is not suspended until such refusal or ob- needed, or where the employee is de- struction stops. The action of the em- ceased. ployee’s representative is considered to be the action of the employee for pur- § 10.321 What happens if the opinion of poses of this section. The employee will the physician selected by OWCP dif- forfeit compensation otherwise paid or fers from the opinion of the physi- payable under the FECA for the period cian selected by the employee? of the refusal or obstruction, and any (a) If one medical opinion holds more compensation already paid for that pe- probative value, OWCP will base its de- riod will be declared an overpayment termination of entitlement on that and will be subject to recovery pursu- medical conclusion (see § 10.502). A dif- ant to 5 U.S.C. 8129. ference in medical opinion sufficient to be considered a conflict occurs when § 10.324 May an employer require an two reports of virtually equal weight employee to undergo a physical ex- and rationale reach opposing conclu- amination in connection with a sions (see James P. Roberts, 31 ECAB 1010 work-related injury? (1980)). The employer may have authority (b) If a conflict exists between the independent of the FECA to require the medical opinion of the employee’s phy- employee to undergo a medical exam- sician and the medical opinion of ei- ination to determine whether he or she ther a second opinion physician or an meets the medical requirements of the OWCP medical adviser or consultant, position held or can perform the duties OWCP shall appoint a third physician of that position. Nothing in the FECA
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or in this part affects such authority. § 10.210.) The employer may request a However, no agency-required examina- copy of the report from OWCP. The em- tion or related activity shall interfere ployer should use Form CA–17 to ob- with the employee’s initial choice of tain interim reports concerning the physician or the provision of any au- duty status of an employee with a dis- thorized examination or treatment, in- abling injury. cluding the issuance of Form CA–16. [63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. MEDICAL REPORTS 23, 1998]
§ 10.330 What are the requirements for § 10.332 What additional medical infor- medical reports? mation will OWCP require to sup- In all cases reported to OWCP, a med- port continuing payment of bene- ical report from the attending physi- fits? cian is required. This report should in- In all cases of serious injury or dis- clude: ease, especially those requiring hos- (a) Dates of examination and treat- pital treatment or prolonged care, ment; OWCP will request detailed narrative (b) History given by the employee; reports from the attending physician (c) Physical findings; at periodic intervals. The physician (d) Results of diagnostic tests; (e) Diagnosis; will be asked to describe continuing (f) Course of treatment; medical treatment for the condition (g) A description of any other condi- accepted by OWCP, a prognosis, a de- tions found but not due to the claimed scription of work limitations, if any, injury; and the physician’s opinion as to the (h) The treatment given or rec- continuing causal relationship between ommended for the claimed injury; the employee’s condition and factors of (i) The physician’s opinion, with his or her Federal employment. medical reasons, as to causal relation- ship between the diagnosed condi- § 10.333 What additional medical infor- tion(s) and the factors or conditions of mation will OWCP require to sup- the employment; port a claim for a schedule award? (j) The extent of disability affecting To support a claim for a schedule the employee’s ability to work due to award, a medical report must contain the injury; accurate measurements of the function (k) The prognosis for recovery; and of the organ or member, in accordance (l) All other material findings. with the American Medical Associa- § 10.331 How and when should the tion’s Guides to the Evaluation of Perma- medical report be submitted? nent Impairment. These measurements may include: The actual degree of loss (a) Form CA–16 may be used for the initial medical report, while Form CA– of active or passive motion or deform- 20 may be used for the initial report ity; the amount of atrophy; the de- and for subsequent reports, including crease, if any, in strength; the disturb- where continued compensation is ance of sensation; and pain due to claimed. Use of medical report forms is nerve impairment. not required, however. The report may also be made in narrative form on the MEDICAL BILLS physician’s letterhead stationery. The § 10.335 How are medical bills sub- report should bear the physician’s sig- mitted? nature or signature stamp. OWCP may require an original signature on the re- Usually, medical providers submit port. bills directly to OWCP. The rules for (b) The report shall be submitted di- submitting and paying bills are stated rectly to OWCP as soon as possible in subpart I of this part. An employee after medical examination or treat- claiming reimbursement of medical ex- ment is received, either by the em- penses should submit an itemized bill ployee or the physician. (See also as described in § 10.802.
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§ 10.336 What are the time frames for such loss may be rebutted by evidence submitting bills? to the contrary, such as evidence of To be considered for payment, bills continued ability to work and to earn must be submitted by the end of the wages despite the loss. calendar year after the year when the (b) Temporary total disability is de- expense was incurred, or by the end of fined as the inability to return to the the calendar year after the year when position held at the time of injury or OWCP first accepted the claim as com- earn equivalent wages, or to perform pensable, whichever is later. other gainful employment, due to the work-related injury. Except as pre- § 10.337 If OWCP reimburses an em- sumed under paragraph (a) of this sec- ployee only partially for a medical tion, an employee’s disability status is expense, must the provider refund always considered temporary pending the balance of the amount paid to return to work. the employee? (a) The OWCP fee schedule sets max- § 10.401 When and how is compensa- imum limits on the amounts payable tion for total disability paid? for many services (see § 10.805). The em- (a) Compensation is payable when the ployee may be only partially reim- employee starts to lose pay if the in- bursed for medical expenses because jury causes permanent disability or if the amount he or she paid to the med- pay loss continues for more than 14 cal- ical provider for a service exceeds the endar days. Otherwise, compensation is maximum allowable charge set by the payable on the fourth day after pay OWCP fee schedule. stops. Compensation may not be paid (b) If this happens, OWCP shall ad- while an injured employee is in a con- vise the employee of the maximum al- tinuation of pay status or receives pay lowable charge for the service in ques- for leave. tion and of his or her responsibility to (b) Compensation for total disability ask the provider to refund to the em- is payable at the rate of 662⁄3 percent of ployee, or credit to the employee’s ac- the pay rate if the employee has no de- count, the amount he or she paid which pendents, or 75 percent of the pay rate exceeds the maximum allowable if the employee has at least one de- charge. The provider may request re- pendent. (‘‘Dependents’’ are defined at consideration of the fee determination 5 U.S.C. 8110(a).) as set forth in § 10.812. (c) If the provider does not refund to § 10.402 What is partial disability? the employee or credit to his or her ac- An injured employee who cannot re- count the amount of money paid in ex- turn to the position held at the time of cess of the charge which OWCP allows, injury (or earn equivalent wages) due the employee should submit docu- to the work-related injury, but who is mentation of the attempt to obtain not totally disabled for all gainful em- such refund or credit to OWCP. OWCP ployment, is considered to be partially may make reasonable reimbursement disabled. to the employee after reviewing the facts and circumstances of the case. § 10.403 When and how is compensa- tion for partial disability paid? Subpart E—Compensation and (a) 5 U.S.C. 8115 outlines how com- Related Benefits pensation for partial disability is de- termined. If the employee has actual COMPENSATION FOR DISABILITY AND earnings which fairly and reasonably IMPAIRMENT represent his or her wage-earning ca- pacity, those earnings may form the § 10.400 What is total disability? basis for payment of compensation for (a) Permanent total disability is pre- partial disability. (See §§ 10.500 through sumed to result from the loss of use of 10.520 concerning return to work.) If both hands, both arms, both feet, or the employee’s actual earnings do not both legs, or the loss of sight of both fairly and reasonably represent his or eyes. However, the presumption of per- her wage-earning capacity, or if the manent total disability as a result of employee has no actual earnings,
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OWCP uses the factors stated in 5 organs and functions of the body. Such U.S.C. 8115 to select a position which loss or loss of use is known as perma- represents his or her wage-earning ca- nent impairment. Compensation for pacity. However, OWCP will not secure proportionate periods of time is pay- employment for the employee in the able for partial loss or loss of use of position selected for establishing a each member, organ or function. OWCP wage-earning capacity. evaluates the degree of impairment to (b) Compensation for partial dis- schedule members, organs and func- ability is payable as a percentage of tions as defined in 5 U.S.C. 8107 accord- the difference between the employee’s ing to the standards set forth in the pay rate for compensation purposes specified (by OWCP) edition of the and the employee’s wage-earning ca- American Medical Association’s Guides 2 pacity. The percentage is 66 ⁄3 percent to the Evaluation of Permanent Impair- of this difference if the employee has ment. no dependents, or 75 percent of this dif- (a) 5 U.S.C. 8107(c) provides a list of ference if the employee has at least one dependent. schedule members. Pursuant to the au- (c) The formula which OWCP uses to thority provided by 5 U.S.C. 8107(c)(22), compute the compensation payable for the Secretary has added the following partial disability employs the fol- organs to the compensation schedule lowing terms: Pay rate for compensa- for injuries that were sustained on or tion purposes, which is defined in after September 7, 1974: § 10.5(s) of this part; current pay rate, Member Weeks which means the salary or wages for the job held at the time of injury at Breast (one) ...... 52 the time of the determination; and Kidney (one) ...... 156 earnings, which means the employee’s Larynx ...... 160 actual earnings, or the salary or pay Lung (one) ...... 156 Penis ...... 205 rate of the position selected by OWCP Testicle (one) ...... 52 as representing the employee’s wage- Tongue ...... 160 earning capacity. Ovary (one) ...... 52 (d) The employee’s wage-earning ca- Uterus/cervix and vulva/vagina ...... 205 pacity in terms of percentage is com- puted by dividing the employee’s earn- (b) Compensation for schedule awards ings by the current pay rate. The com- is payable at 662⁄3 percent of the em- parison of earnings and ‘‘current’’ pay ployee’s pay, or 75 percent of the pay rate for the job held at the time of in- when the employee has at least one de- jury need not be made as of the begin- pendent. ning of partial disability. OWCP may (c) The period of compensation pay- use any convenient date for making able under 5 U.S.C. 8107(c) shall be re- the comparison as long as both wage duced by the period of compensation rates are in effect on the date used for paid or payable under the schedule for comparison. an earlier injury if: (e) The employee’s wage-earning ca- (1) Compensation in both cases is for pacity in terms of dollars is computed impairment of the same member or by first multiplying the pay rate for function or different parts of the same compensation purposes by the percent- member or function, or for disfigure- age of wage-earning capacity. The re- ment; and sulting dollar amount is then sub- (2) OWCP finds that compensation tracted from the pay rate for com- payable for the later impairment in pensation purposes to obtain the em- ployee’s loss of wage-earning capacity. whole or in part would duplicate the compensation payable for the pre-ex- § 10.404 When and how is compensa- isting impairment. tion for a schedule impairment (d) Compensation not to exceed $3,500 paid? may be paid for serious disfigurement Compensation is provided for speci- of the face, head or neck which is like- fied periods of time for the permanent ly to handicap a person in securing or loss or loss of use of certain members, maintaining employment.
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§ 10.405 Who is considered a depend- marriage occurs at age 55 or older, the ent in a claim based on disability or lump-sum payment will not be paid and impairment? compensation will continue until (a) Dependents include a wife or hus- death. band; an unmarried child under 18 (b) If there is a child entitled to com- years of age; an unmarried child over pensation, the compensation for the 18 who is incapable of self-support; a surviving spouse will equal 45 percent student, until he or she reaches 23 of the employee’s monthly pay plus 15 years of age or completes four years of percent for each child, but the total school beyond the high school level; or percentage may not exceed 75 percent. a wholly dependent parent. (c) If there is a child entitled to com- (b) Augmented compensation payable pensation and no surviving spouse, for an unmarried child, which would compensation for one child will equal otherwise terminate when the child 40 percent of the employee’s monthly reached the age of 18, may be continued pay. Fifteen percent will be awarded while the child is a student as defined for each additional child, not to exceed in 5 U.S.C. 8101(17). 75 percent, the total amount to be shared equally among all children. § 10.406 What are the maximum and (d) If there is no child or surviving minimum rates of compensation in spouse entitled to compensation, the disability cases? parents will receive compensation (a) Compensation for total or partial equal to 25 percent of the employee’s disability may not exceed 75 percent of monthly pay if one parent was wholly the basic monthly pay of the highest dependent on the employee at the time step of grade 15 of the General Sched- of death and the other was not depend- ule. (Basic monthly pay does not in- ent to any extent, or 20 percent each if clude locality adjustments.) However, both were wholly dependent on the em- this limit does not apply to disability ployee, or a proportionate amount in sustained in the performance of duty the discretion of the Director if one or which was due to an assault which oc- both were partially dependent on the curred during an attempted assassina- employee. If there is a child or sur- tion of a Federal official described viving spouse entitled to compensa- under 10 U.S.C. 351(a) or 1751(a). tion, the parents will receive so much (b) Compensation for total disability of the compensation described in the may not be less than 75 percent of the preceding sentence as, when added to basic monthly pay of the first step of the total percentages payable to the grade 2 of the General Schedule or ac- surviving spouse and children, will not tual pay, whichever is less. (Basic exceed a total of 75 percent of the em- monthly pay does not include locality ployee’s monthly pay. adjustments.) (e) If there is no child, surviving spouse or dependent parent entitled to COMPENSATION FOR DEATH compensation, the brothers, sisters, § 10.410 Who is entitled to compensa- grandparents and grandchildren will tion in case of death, and what are receive compensation equal to 20 per- the rates of compensation payable cent of the employee’s monthly pay to in death cases? such dependent if one was wholly de- (a) If there is no child entitled to pendent on the employee at the time of compensation, the employee’s sur- death; or 30 percent if more than one viving spouse will receive compensa- was wholly dependent, divided among tion equal to 50 percent of the employ- such dependents equally; or 10 percent ee’s monthly pay until death or remar- if no one was wholly dependent but one riage before reaching age 55. Upon re- or more was partly dependent, divided marriage, the surviving spouse will be among such dependents equally. If paid a lump sum equal to 24 times the there is a child, surviving spouse or de- monthly compensation payment (ex- pendent parent entitled to compensa- cluding compensation payable on ac- tion, the brothers, sisters, grand- count of another individual) to which parents and grandchildren will receive the surviving spouse was entitled im- so much of the compensation described mediately before the remarriage. If re- in the preceding sentence as, when
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added to the total percentages payable paid to an employee’s survivors are de- to the children, surviving spouse and scribed in 5 U.S.C. 8109. Therefore, if dependent parents, will not exceed a there is no surviving spouse or child, total of 75 percent of the employee’s OWCP will pay benefits as follows: monthly pay. (a) To the parent, or parents, wholly (f) A child, brother, sister or grand- dependent for support on the decedent child may be entitled to receive death in equal shares with any wholly de- benefits until death, marriage, or pendent brother, sister, grandparent or reaching age 18. Regarding entitlement grandchild; after reaching age 18, refer to § 10.417 of (b) To the parent, or parents, par- these regulations. tially dependent for support on the de- cedent in equal shares when there are § 10.411 What are the maximum and no wholly dependent brothers, sisters, minimum rates of compensation in death cases? grandparents or grandchildren (or other wholly dependent parent); and (a) Compensation for death may not (c) To the parent, or parents, par- exceed the employee’s pay or 75 percent tially dependent upon the decedent, 25 of the basic monthly pay of the highest percent of the amount payable, shared step of grade 15 of the General Sched- equally, and the remaining 75 percent ule, except that compensation may ex- to any wholly dependent brother, sis- ceed the employee’s basic monthly pay ter, grandparent or grandchild (or if such excess is created by authorized wholly dependent parent), shared cost-of-living increases. (Basic month- equally. ly pay does not include locality adjust- ments.) However, the maximum limit § 10.414 What reports of dependents does not apply when the death occurred are needed in death cases? during an assassination of a Federal of- If a beneficiary is receiving com- ficial described under 18 U.S.C. 351(a) or pensation benefits on account of an 18 U.S.C. 1751(a). (b) Compensation for death is com- employee’s death, OWCP will ask him puted on a minimum pay rate equal to or her to complete a report once each the basic monthly pay of an employee year on Form CA–12. The report re- at the first step of grade 2 of the Gen- quires the beneficiary to note changes eral Schedule. (Basic monthly pay does in marital status and dependents. If not include locality adjustments.) the beneficiary fails to submit the form (or an equivalent written state- § 10.412 Will OWCP pay the costs of ment) within 30 days of the date of re- burial and transportation of the re- quest, OWCP shall suspend compensa- mains? tion until the requested form or equiv- In a case accepted for death benefits, alent written statement is received. OWCP will pay up to $800 for funeral The suspension will include compensa- and burial expenses. When an employ- tion payable for or on behalf of another ee’s home is within the United States person (for example, compensation and the employee dies outside the payable to a widow on behalf of a United States, or away from home or child). When the form or statement is the official duty station, an additional received, compensation will be rein- amount may be paid for transporting stated at the appropriate rate retro- the remains to the employee’s home. active to the date of suspension, pro- An additional amount of $200 is paid to vided the beneficiary is entitled to the personal representative of the dece- such compensation. dent for reimbursement of the costs of terminating the decedent’s status as an § 10.415 What must a beneficiary do if the number of beneficiaries de- employee of the United States. creases? § 10.413 If a person dies while receiv- The circumstances under which com- ing a schedule award, to whom is pensation on account of death shall be the balance of the schedule award terminated are described in 5 U.S.C. payable? 8133(b). A beneficiary in a claim for The circumstances under which the death benefits should promptly notify balance of a schedule award may be OWCP of any event which would affect
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his or her entitlement to continued ADJUSTMENTS TO COMPENSATION compensation. The terms ‘‘marriage’’ and ‘‘remarriage’’ include common-law § 10.420 How are cost-of-living adjust- marriage as recognized and defined by ments applied? State law in the State where the bene- (a) In cases of disability, a bene- ficiary resides. If a beneficiary, or ficiary is eligible for cost-of-living ad- someone acting on his or her behalf, re- justments under 5 U.S.C. 8146a where ceives a check which includes payment injury-related disability began more of compensation for any period after than one year prior to the date the the date when entitlement ended, he or cost-of-living adjustment took effect. she must promptly return the check to The employee’s use of continuation of OWCP. pay as provided by 5 U.S.C. 8118, or of sick or annual leave, during any part of § 10.416 How does a change in the the period of disability does not affect number of beneficiaries affect the the computation of the one-year pe- amount of compensation paid to the riod. other beneficiaries? (b) Where an injury does not result in If compensation to a beneficiary is disability but compensation is payable terminated, the amount of compensa- for permanent impairment of a covered tion payable to one or more of the re- member, organ or function of the body, maining beneficiaries may be reappor- a beneficiary is eligible for cost-of-liv- tioned. Similarly, the birth of a post- ing adjustments under 5 U.S.C. 8146a humous child may result in a reappor- where the award for such impairment tionment of the amount of compensa- began more than one year prior to the tion payable to other beneficiaries. The date the cost-of-living adjustment took parent, or someone acting on the effect. child’s behalf, shall promptly notify (c) In cases of recurrence of dis- OWCP of the birth and submit a copy ability, where the pay rate for com- of the birth certificate. pensation purposes is the pay rate at the time disability recurs, a bene- § 10.417 What reports are needed when ficiary is eligible for cost-of-living ad- compensation payments continue justments under 5 U.S.C. 8146a where for children over age 18? the effective date of that pay rate (a) Compensation payable on behalf began more than one year prior to the of a child, brother, sister, or grand- date the cost-of living adjustment took child, which would otherwise end when effect. the person reaches 18 years of age, (d) In cases of death, entitlement to shall be continued if and for so long as cost-of-living adjustments under 5 he or she is not married and is either a U.S.C. 8146a begins with the first such student as defined in 5 U.S.C. 8101(17), adjustment occurring more than one or physically or mentally incapable of year after the date of death. However, self-support. if the death was preceded by a period of (b) At least twice each year, OWCP injury-related disability, compensation will ask a beneficiary receiving com- payable to the survivors will be in- pensation based on the student status creased by the same percentages as the of a dependent to provide proof of con- cost-of-living adjustments paid or pay- tinuing entitlement to such compensa- able to the deceased employee for the tion, including certification of school period of disability, as well as by subse- enrollment. quent cost-of-living adjustments to (c) Likewise, at least twice each which the survivors would otherwise be year, OWCP will ask a beneficiary or entitled. legal guardian receiving compensation based on a dependent’s physical or § 10.421 May a beneficiary receive mental inability to support himself or other kinds of payments from the herself to submit a medical report Federal Government concurrently verifying that the dependent’s medical with compensation? condition persists and that it continues (a) 5 U.S.C. 8116(a) provides that a to preclude self-support. beneficiary may not receive wage-loss
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compensation concurrently with a Fed- Therefore, when OWCP receives re- eral retirement or survivor annuity. quests for lump-sum payments for The beneficiary must elect the benefit wage-loss benefits, OWCP will not exer- that he or she wishes to receive, and cise further discretion in the matter. the election, once made, is revocable. This determination is based on several (b) An employee may receive com- factors, including: pensation concurrently with military (1) The purpose of the FECA, which is retired pay, retirement pay, retainer to replace lost wages; pay or equivalent pay for service in the (2) The prudence of providing wage- Armed Forces or other uniformed serv- loss benefits on a regular, recurring ices, subject to the reduction of such basis; and pay in accordance with 5 U.S.C. 5532(b). (c) An employee may not receive (3) The high cost of the long-term compensation for total disability con- borrowing that is needed to pay out currently with severance pay or sepa- large lump sums. ration pay. However, an employee may (b) However, a lump-sum payment concurrently receive compensation for may be made to an employee entitled partial disability or permanent impair- to a schedule award under 5 U.S.C. 8107 ment to a schedule member, organ or where OWCP determines that such a function with severance pay or separa- payment is in the employee’s best in- tion pay. terest. Lump-sum payments of sched- (d) Pursuant to 5 U.S.C. 8116(d), a ule awards generally will be considered beneficiary may receive compensation in the employee’s best interest only under the FECA for either the death or where the employee does not rely upon disability of an employee concurrently compensation payments as a substitute with benefits under title II of the So- for lost wages (that is, the employee is cial Security Act on account of the age working or is receiving annuity pay- or death of such employee. However, ments). An employee possesses no abso- this provision of the FECA also re- lute right to a lump-sum payment of quires OWCP to reduce the amount of benefits payable under 5 U.S.C. 8107. any such compensation by the amount (c) Lump-sum payments to surviving of any Social Security Act benefits spouses are addressed in 5 U.S.C. that are attributable to the Federal service of the employee. 8135(b). (e) To determine the employee’s enti- § 10.423 May compensation payments tlement to compensation, OWCP may be assigned to, or attached by, require an employee to submit an affi- creditors? davit or statement as to the receipt of any Federally funded or Federally as- (a) As a general rule, compensation sisted benefits. If an employee fails to and claims for compensation are ex- submit such affidavit or statement empt from the claims of private credi- within 30 days of the date of the re- tors. This rule does not apply to claims quest, his or her right to compensation submitted by Federal agencies. Fur- shall be suspended until such time as ther, any attempt by a FECA bene- the requested affidavit or statement is ficiary to assign his or her claim is null received. At that time compensation and void. However, pursuant to provi- will be reinstated retroactive to the sions of the Social Security Act, 42 date of suspension provided the em- U.S.C. 659, and regulations issued by ployee is entitled to such compensa- the Office of Personnel Management tion. (OPM) at 5 CFR part 581, FECA bene- fits, including survivor’s benefits, may § 10.422 May compensation payments be issued in a lump sum? be garnished to collect overdue ali- mony and child support payments. (a) In exercise of the discretion af- (b) Garnishment for child support forded under 5 U.S.C. 8135(a), OWCP has and alimony may be requested by pro- determined that lump-sum payments viding a copy of the State agency or will not be made to persons entitled to wage-loss benefits (that is, those pay- court order to the district office han- able under 5 U.S.C. 8105 and 8106). dling the FECA claim.
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§ 10.424 May someone other than the § 10.431 What does OWCP do when an beneficiary be designated to receive overpayment is identified? compensation payments? Before seeking to recover an overpay- A beneficiary may be incapable of ment or adjust benefits, OWCP will ad- managing or directing the manage- vise the beneficiary in writing that: ment of his or her benefits because of a (a) The overpayment exists, and the mental or physical disability, or be- amount of overpayment; cause of legal incompetence, or because (b) A preliminary finding shows ei- he or she is under 18 years of age. In ther that the individual was or was not this situation, absent the appointment at fault in the creation of the overpay- of a guardian or other party to manage ment; the financial affairs of the claimant by (c) He or she has the right to inspect a court or administrative body author- and copy Government records relating ized to do so, OWCP in its sole discre- to the overpayment; and tion may approve a person to serve as (d) He or she has the right to present the representative payee for funds due evidence which challenges the fact or the beneficiary. amount of the overpayment, and/or challenges the preliminary finding that § 10.425 May compensation be claimed he or she was at fault in the creation of for periods of restorable leave? the overpayment. He or she may also The employee may claim compensa- request that recovery of the overpay- tion for periods of annual and sick ment be waived. leave which are restorable in accord- § 10.432 How can an individual present ance with the rules of the employing evidence to OWCP in response to a agency. Forms CA–7a and CA–7b are preliminary notice of an overpay- used for this purpose. ment? The individual may present this evi- OVERPAYMENTS dence to OWCP in writing or at a pre- § 10.430 How does OWCP notify an in- recoupment hearing. The evidence dividual of a payment made? must be presented or the hearing re- quested within 30 days of the date of (a) In addition to providing narrative the written notice of overpayment. descriptions to recipients of benefits Failure to request the hearing within paid or payable, OWCP includes on this 30-day time period shall constitute each periodic check a clear indication a waiver of that right. of the period for which payment is being made. A form is sent to the re- § 10.433 Under what circumstances cipient with each supplemental check can OWCP waive recovery of an which states the date and amount of overpayment? the payment and the period for which (a) OWCP may consider waiving an payment is being made. For payments overpayment only if the individual to sent by electronic funds transfer whom it was made was not at fault in (EFT), a notification of the date and accepting or creating the overpayment. amount of payment appears on the Each recipient of compensation bene- statement from the recipient’s finan- fits is responsible for taking all reason- cial institution. able measures to ensure that payments (b) By these means, OWCP puts the he or she receives from OWCP are prop- recipient on notice that a payment was er. The recipient must show good faith made and the amount of the payment. and exercise a high degree of care in re- If the amount received differs from the porting events which may affect enti- amount indicated on the written notice tlement to or the amount of benefits. A or bank statement, the recipient is re- recipient who has done any of the fol- sponsible for notifying OWCP of the lowing will be found to be at fault with difference. Absent affirmative evidence respect to creating an overpayment: to the contrary, the beneficiary will be (1) Made an incorrect statement as to presumed to have received the notice a material fact which he or she knew of payment, whether mailed or trans- or should have known to be incorrect; mitted electronically. or
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(2) Failed to provide information length and/or percentage of impair- which he or she knew or should have ment, or loss of wage-earning capacity. known to be material; or (3) Accepted a payment which he or § 10.436 Under what circumstances she knew or should have known to be would recovery of an overpayment incorrect. (This provision applies only defeat the purpose of the FECA? to the overpaid individual.) Recovery of an overpayment will de- (b) Whether or not OWCP determines feat the purpose of the FECA if such that an individual was at fault with re- recovery would cause hardship to a spect to the creation of an overpay- currently or formerly entitled bene- ment depends on the circumstances ficiary because: surrounding the overpayment. The de- (a) The beneficiary from whom OWCP gree of care expected may vary with seeks recovery needs substantially all the complexity of those circumstances of his or her current income (including and the individual’s capacity to realize compensation benefits) to meet current that he or she is being overpaid. ordinary and necessary living expenses; and § 10.434 If OWCP finds that the recipi- (b) The beneficiary’s assets do not ex- ent of an overpayment was not at ceed a specified amount as determined fault, what criteria are used to de- by OWCP from data furnished by the cide whether to waive recovery of Bureau of Labor Statistics. A higher it? amount is specified for a beneficiary If OWCP finds that the recipient of with one or more dependents. an overpayment was not at fault, re- payment will still be required unless: § 10.437 Under what circumstances (a) Adjustment or recovery of the would recovery of an overpayment overpayment would defeat the purpose be against equity and good con- of the FECA (see § 10.436), or science? (b) Adjustment or recovery of the (a) Recovery of an overpayment is overpayment would be against equity considered to be against equity and and good conscience (see § 10.437). good conscience when any individual who received an overpayment would § 10.435 Is an individual responsible experience severe financial hardship in for an overpayment that resulted attempting to repay the debt. from an error made by OWCP or (b) Recovery of an overpayment is another Government agency? also considered to be against equity (a) The fact that OWCP may have and good conscience when any indi- erred in making the overpayment, or vidual, in reliance on such payments or that the overpayment may have re- on notice that such payments would be sulted from an error by another Gov- made, gives up a valuable right or ernment agency, does not by itself re- changes his or her position for the lieve the individual who received the worse. In making such a decision, overpayment from liability for repay- OWCP does not consider the individ- ment if the individual also was at fault ual’s current ability to repay the over- in accepting the overpayment. payment. (b) However, OWCP may find that the (1) To establish that a valuable right individual was not at fault if failure to has been relinquished, it must be report an event affecting compensation shown that the right was in fact valu- benefits, or acceptance of an incorrect able, that it cannot be regained, and payment, occurred because: that the action was based chiefly or (1) The individual relied on misin- solely in reliance on the payments or formation given in writing by OWCP on the notice of payment. Donations to (or by another Government agency charitable causes or gratuitous trans- which he or she had reason to believe fers of funds to other individuals are was connected with the administration not considered relinquishments of valu- of benefits) as to the interpretation of able rights. a pertinent provision of the FECA or (2) To establish that an individual’s its regulations; or position has changed for the worse, it (2) OWCP erred in calculating cost- must be shown that the decision made of-living increases, schedule award would not otherwise have been made
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but for the receipt of benefits, and that shall refund to OWCP the amount of this decision resulted in a loss. the overpayment as soon as the error is discovered or his or her attention is § 10.438 Can OWCP require the indi- called to same. If no refund is made, vidual who received the overpay- OWCP shall decrease later payments of ment to submit additional financial information? compensation, taking into account the probable extent of future payments, (a) The individual who received the the rate of compensation, the financial overpayment is responsible for pro- circumstances of the individual, and viding information about income, ex- any other relevant factors, so as to penses and assets as specified by minimize any hardship. Should the in- OWCP. This information is needed to dividual die before collection has been determine whether or not recovery of completed, collection shall be made by an overpayment would defeat the pur- decreasing later payments, if any, pay- pose of the FECA, or be against equity able under the FECA with respect to and good conscience. This information the individual’s death. will also be used to determine the re- (b) When an overpayment has been payment schedule, if necessary. made to an individual who is not enti- (b) Failure to submit the requested tled to further payments, the indi- information within 30 days of the re- vidual shall refund to OWCP the quest shall result in denial of waiver, amount of the overpayment as soon as and no further request for waiver shall the error is discovered or his or her at- be considered until the requested infor- tention is called to same. The overpay- mation is furnished. ment is subject to the provisions of the § 10.439 What is addressed at a pre- Federal Claims Collection Act of 1966 recoupment hearing? (as amended) and may be reported to At a pre-recoupment hearing, the the Internal Revenue Service as in- OWCP representative will consider all come. If the individual fails to make issues in the claim on which a formal such refund, OWCP may recover the decision has been issued. Such a hear- same through any available means, in- ing will thus fulfill OWCP’s obligation cluding offset of salary, annuity bene- to provide pre-recoupment rights and a fits, or other Federal payments, includ- hearing under 5 U.S.C. 8124(b). Pre- ing tax refunds as authorized by the recoupment hearings shall be con- Tax Refund Offset Program, or referral ducted in exactly the same manner as of the debt to a collection agency or to provided in § 10.615 through § 10.622. the Department of Justice. § 10.440 How does OWCP communicate Subpart F—Continuing Benefits its final decision concerning recov- ery of an overpayment, and what RULES AND EVIDENCE appeal right accompanies it? (a) OWCP will send a copy of the final § 10.500 What are the basic rules gov- decision to the individual from whom erning continuing receipt of com- recovery is sought; his or her rep- pensation benefits and return to resentative, if any; and the employing work? agency. (a) Benefits are available only while (b) The only review of a final decision the effects of a work-related condition concerning an overpayment is to the continue. Compensation for wage loss Employees’ Compensation Appeals due to disability is available only for Board. The provisions of 5 U.S.C. any periods during which an employ- 8124(b) (concerning hearings) and 5 ee’s work-related medical condition U.S.C. 8128(a) (concerning reconsider- prevents him or her from earning the ations) do not apply to such a decision. wages earned before the work-related injury. Payment of medical benefits is § 10.441 How are overpayments col- available for all treatment necessary lected? due to a work-related medical condi- (a) When an overpayment has been tion. made to an individual who is entitled (b) Each disabled employee is obli- to further payments, the individual gated to perform such work as he or
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she can, and OWCP’s goal is to return § 10.502 How does OWCP evaluate evi- each disabled employee to suitable dence in support of continuing re- work as soon as he or she is medically ceipt of compensation benefits? able. In determining what constitutes In considering the medical and fac- ‘‘suitable work’’ for a particular dis- tual evidence, OWCP will weigh the abled employee, OWCP considers the probative value of the attending physi- employee’s current physical limita- cian’s report, any second opinion phy- tions, whether the work is available sician’s report, any other medical re- within the employee’s demonstrated ports, or any other evidence in the file. commuting area, the employee’s quali- If OWCP determines that the medical fications to perform such work, and evidence supporting one conclusion is other relevant factors. (See § 10.508 more consistent, logical, and well-rea- with respect to the payment of reloca- soned than evidence supporting a con- tion expenses.) trary conclusion, OWCP will use the § 10.501 What medical evidence is nec- conclusion that is supported by the essary to support continuing re- weight of the medical evidence as the ceipt of compensation benefits? basis for awarding or denying further (a) The employee is responsible for benefits. If medical reports that are providing sufficient medical evidence equally well-reasoned support incon- to justify payment of any compensa- sistent determinations of an issue tion sought. under consideration, OWCP will direct (1) To support payment of continuing the employee to undergo a referee ex- compensation, narrative medical evi- amination to resolve the issue. The re- dence must be submitted whenever sults of the referee examination will be OWCP requests it but ordinarily not given special weight in determining less than once a year. It must contain the issue. a physician’s rationalized opinion as to whether the specific period of alleged § 10.503 Under what circumstances may OWCP reduce or terminate disability is causally related to the em- compensation benefits? ployee’s accepted injury or illness. (2) The physician’s opinion must be Once OWCP has advised the employee based on the facts of the case and the that it has accepted a claim and has ei- complete medical background of the ther approved continuation of pay or employee, must be one of reasonable paid medical benefits or compensation, medical certainty and must include ob- benefits will not be terminated or re- jective findings in support of its con- duced unless the weight of the evidence clusions. Subjective complaints of pain establishes that: are not sufficient, in and of themselves, (a) The disability for which com- to support payment of continuing com- pensation was paid has ceased; pensation. Likewise, medical limita- (b) The disabling condition is no tions based solely on the fear of a pos- longer causally related to the employ- sible future injury are also not suffi- ment; cient to support payment of continuing (c) The employee is only partially compensation. See § 10.330 for a fuller disabled; discussion of medical evidence. (d) The employee has returned to (b) OWCP may require any kind of work; non-invasive testing to determine the (e) The beneficiary was convicted of employee’s functional capacity. Fail- fraud in connection with a claim under ure to undergo such testing will result the FECA, or the beneficiary was in- in a suspension of benefits. In addition, carcerated based on any felony convic- OWCP may direct the employee to un- tion; or dergo a second opinion or referee exam- (f) OWCP’s initial decision was in ination in any case it deems appro- error. priate (see §§ 10.320 and 10.321).
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RETURN TO WORK—EMPLOYER’S ployer may also contact the employee RESPONSIBILITIES at reasonable intervals to request peri- odic medical reports addressing his or § 10.505 What actions must the em- her ability to return to work. ployer take? Upon authorizing medical care, the § 10.507 How should the employer employer should advise the employee make an offer of suitable work? in writing as soon as possible of his or Where the attending physician or her obligation to return to work under OWCP notifies the employer in writing § 10.210 and as defined in this subpart. that the employee is partially disabled The term ‘‘return to work’’ as used in (that is, the employee can perform this subpart is not limited to returning some work but not return to the posi- to work at the employee’s normal tion held at date of injury), the em- worksite or usual position, but may in- ployer should act as follows: clude returning to work at other loca- (a) If the employee can perform in a tions and in other positions. In general, specific alternative position available the employer should make all reason- in the agency, and the employer has able efforts to place the employee in advised the employee in writing of the his or her former or an equivalent posi- specific duties and physical require- tion, in accordance with 5 U.S.C. ments, the employer shall notify the 8151(b)(2), if the employee has fully re- employee in writing immediately of covered after one year. The Office of the date of availability. Personnel Management (not OWCP) ad- (b) If the employee can perform re- ministers this provision. stricted or limited duties, the em- (a) Where the employer has specific ployer should determine whether such alternative positions available for par- duties are available or whether an ex- tially disabled employees, the em- isting job can be modified. If so, the ployer should advise the employee in employer shall advise the employee in writing of the specific duties and phys- writing of the duties, their physical re- ical requirements of those positions. quirements and availability. (b) Where the employer has no spe- (c) The employer must make any job cific alternative positions available for offer in writing. However, the employer an employee who can perform re- may make a job offer verbally as long stricted or limited duties, the em- as it provides the job offer to the em- ployer should advise the employee of ployee in writing within two business any accommodations the agency can days of the verbal job offer. make to accommodate the employee’s (d) The offer must include a descrip- limitations due to the injury. tion of the duties of the position, the physical requirements of those duties, § 10.506 May the employer monitor the and the date by which the employee is employee’s medical care? either to return to work or notify the The employer may monitor the em- employer of his or her decision to ac- ployee’s medical progress and duty sta- cept or refuse the job offer. The em- tus by obtaining periodic medical re- ployer must send a complete copy of ports. Form CA–17 is usually adequate any job offer to OWCP when it is sent for this purpose. To aid in returning an to the employee. injured employee to suitable employ- ment, the employer may also contact § 10.508 May relocation expenses be the employee’s physician in writing paid for an employee who would concerning the work limitations im- need to move to accept an offer of posed by the effects of the injury and reemployment? possible job assignments. (However, the If possible, the employer should offer employer shall not contact the physi- suitable reemployment in the location cian by telephone or through personal where the employee currently resides. visit.) When such contact is made, the If this is not practical, the employer employer shall send a copy of any such may offer suitable reemployment at correspondence to OWCP and the em- the employee’s former duty station or ployee, as well as a copy of the physi- other location. Where the distance be- cian’s response when received. The em- tween the location of the offered job
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and the location where the employee not otherwise be employed by the Fed- currently resides is at least 50 miles, eral Government or in any well-known OWCP may pay such relocation ex- branch of the general labor market. penses as are considered reasonable and necessary if the employee has been ter- RETURN TO WORK—EMPLOYEE’S minated from the agency’s employ- RESPONSIBILITIES ment rolls and would incur relocation expenses by accepting the offered re- § 10.515 What actions must the em- employment. OWCP may also pay such ployee take with respect to return- relocation expenses when the new em- ing to work? ployer is other than a Federal em- (a) If an employee can resume regular ployer. OWCP will notify the employee Federal employment, he or she must do that relocation expenses are payable if so. No further compensation for wage it makes a finding that the job is suit- loss is payable once the employee has able. To determine whether a reloca- recovered from the work-related injury tion expense is reasonable and nec- to the extent that he or she can per- essary, OWCP shall use as a guide the form the duties of the position held at Federal travel regulations for perma- the time of injury, or earn equivalent nent changes of duty station. wages. § 10.509 If an employee’s light-duty job (b) If an employee cannot return to is eliminated due to downsizing, the job held at the time of injury due what is the effect on compensation? to partial disability from the effects of (a) In general, an employee will not the work-related injury, but has recov- be considered to have experienced a ered enough to perform some type of compensable recurrence of disability as work, he or she must seek work. In the defined in § 10.5(x) merely because his alternative, the employee must accept or her employer has eliminated the em- suitable work offered to him or her. ployee’s light-duty position in a reduc- (See § 10.500 for a definition of ‘‘suitable tion-in-force or some other form of work’’.) This work may be with the downsizing. When this occurs, OWCP original employer or through job place- will determine the employee’s wage- ment efforts made by or on behalf of earning capacity based on his or her OWCP. actual earnings in such light-duty posi- (c) If the employer has advised an tion if this determination is appro- employee in writing that specific alter- priate on the basis that such earnings native positions exist within the agen- fairly and reasonably represent the em- cy, the employee shall provide the de- ployee’s wage-earning capacity and scription and physical requirements of such a determination has not already such alternate positions to the attend- been made. ing physician and ask whether and (b) For the purposes of this section when he or she will be able to perform only, a light-duty position means a clas- such duties. sified position to which the injured em- (d) If the employer has advised an ployee has been formally reassigned employee that it is willing to accom- that conforms to the established phys- modate his or her work limitations, ical limitations of the injured em- ployee and for which the employer has the employee shall so advise the at- already prepared a written position de- tending physician and ask him or her scription such that the position con- to specify the limitations imposed by stitutes ‘‘regular’’ Federal employ- the injury. The employee is responsible ment. In the absence of a ‘‘light-duty for advising the employer immediately position’’ as described in this para- of these limitations. graph, OWCP will assume that the em- (e) From time to time, OWCP may re- ployee was instead engaged in non- quire the employee to report his or her competitive employment which does efforts to obtain suitable employment, not represent the employee’s wage- whether with the Federal Government, earning capacity, i.e., work of the type State and local Governments, or in the provided to injured employees who can- private sector.
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§ 10.516 How will an employee know if evidence; OWCP claims staff perform OWCP considers a job to be suit- this function. able? (b) Vocational rehabilitation services OWCP shall advise the employee that may also include vocational evalua- it has found the offered work to be tion, testing, training, and placement suitable and afford the employee 30 services with either the original em- days to accept the job or present any ployer or a new employer, when the in- reasons to counter OWCP’s finding of jured employee cannot return to the suitability. If the employee presents job held at the time of injury. These such reasons, and OWCP determines services also include functional capac- that the reasons are unacceptable, it ity evaluations, which help to tailor in- will notify the employee of that deter- dividual rehabilitation programs to mination and that he or she has 15 days employees’ physical reconditioning and in which to accept the offered work behavioral modification needs, and without penalty. At that point in time, help employees to meet the demands of OWCP’s notification need not state the current or potential jobs. reasons for finding that the employee’s reasons are not acceptable. § 10.519 What action will OWCP take if an employee refuses to undergo vo- § 10.517 What are the penalties for re- cational rehabilitation? fusing to accept a suitable job Under 5 U.S.C. 8104(a), OWCP may di- offer? rect a permanently disabled employee (a) 5 U.S.C. 8106(c) provides that a to undergo vocational rehabilitation. partially disabled employee who re- To ensure that vocational rehabilita- fuses to seek suitable work, or refuses tion services are available to all who to or neglects to work after suitable might be entitled to benefit from them, work is offered to or arranged for him an injured employee who has a loss of or her, is not entitled to compensation. wage-earning capacity shall be pre- An employee who refuses or neglects to sumed to be ‘‘permanently disabled,’’ work after suitable work has been of- for purposes of this section only, unless fered or secured for him or her has the and until the employee proves that the burden to show that this refusal or fail- disability is not permanent. If an em- ure to work was reasonable or justified. ployee without good cause fails or re- (b) After providing the two notices fuses to apply for, undergo, participate described in § 10.516, OWCP will termi- in, or continue to participate in a voca- nate the employee’s entitlement to fur- tional rehabilitation effort when so di- ther compensation under 5 U.S.C. 8105, rected, OWCP will act as follows: 8106, and 8107, as provided by 5 U.S.C. (a) Where a suitable job has been 8106(c)(2). However, the employee re- identified, OWCP will reduce the em- mains entitled to medical benefits as ployee’s future monetary compensation provided by 5 U.S.C. 8103. based on the amount which would like- ly have been his or her wage-earning § 10.518 Does OWCP provide services capacity had he or she undergone voca- to help employees return to work? tional rehabilitation. OWCP will deter- (a) OWCP may, in its discretion, pro- mine this amount in accordance with vide vocational rehabilitation services the job identified through the voca- as authorized by 5 U.S.C. 8104. These tional rehabilitation planning process, services include assistance from reg- which includes meetings with the istered nurses working under the direc- OWCP nurse and the employer. The re- tion of OWCP. Among other things, duction will remain in effect until such these nurses visit the worksite, ensure time as the employee acts in good faith that the duties of the position do not to comply with the direction of OWCP. exceed the medical limitations as rep- (b) Where a suitable job has not been resented by the weight of medical evi- identified, because the failure or re- dence established by OWCP, and ad- fusal occurred in the early but nec- dress any problems the employee may essary stages of a vocational rehabili- have in adjusting to the work setting. tation effort (that is, meetings with The nurses do not evaluate medical the OWCP nurse, interviews, testing,
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counseling, functional capacity evalua- will result in reduction of compensa- tions, and work evaluations), OWCP tion benefits. While earning income cannot determine what would have will not necessarily result in a reduc- been the employee’s wage-earning ca- tion of compensation, failure to report pacity. income may result in forfeiture of all (c) Under the circumstances identi- benefits paid during the reporting pe- fied in paragraph (b) of this section, in riod. the absence of evidence to the con- trary, OWCP will assume that the vo- § 10.526 Must the employee report vol- cational rehabilitation effort would unteer activities? have resulted in a return to work with no loss of wage-earning capacity, and An employee who is receiving com- OWCP will reduce the employee’s mon- pensation for partial or total disability etary compensation accordingly (that is periodically required to report vol- is, to zero). This reduction will remain unteer activity or any other kind of ac- in effect until such time as the em- tivity which shows that the employee ployee acts in good faith to comply is no longer totally disabled for work. with the direction of OWCP. § 10.527 Does OWCP verify reports of § 10.520 How does OWCP determine earnings? compensation after an employee completes a vocational rehabilita- To make proper determinations of an tion program? employee’s entitlement to benefits, OWCP may verify the earnings re- After completion of a vocational re- habilitation program, OWCP may ad- ported by the employee through a vari- just compensation to reflect the in- ety of means, including but not limited jured worker’s wage-earning capacity. to computer matches with the Office of Actual earnings will be used if they Personnel Management and inquiries fairly and reasonably reflect the earn- to the Social Security Administration. ing capacity. The position determined Also, OWCP may perform computer to be the goal of a training plan is as- matches with records of State agen- sumed to represent the employee’s cies, including but not limited to work- earning capacity if it is suitable and ers’ compensation administrations, to performed in sufficient numbers so as determine whether private employers to be reasonably available, whether or are paying workers’ compensation in- not the employee is placed in such a surance premiums for recipients of position. benefits under the FECA.
REPORTS OF EARNINGS FROM § 10.528 What action will OWCP take if EMPLOYMENT AND SELF-EMPLOYMENT the employee fails to file a report of activity indicating an ability to § 10.525 What information must the work? employee report? OWCP periodically requires each em- (a) An employee who is receiving ployee who is receiving compensation compensation for partial or total dis- benefits to complete an affidavit as to ability must advise OWCP immediately of any return to work, either part-time any work, or activity indicating an or full-time. In addition, an employee ability to work, which the employee who is receiving compensation for par- has performed for the prior 15 months. tial or total disability will periodically If an employee who is required to file be required to submit a report of earn- such a report fails to do so within 30 ings from employment or self-employ- days of the date of the request, his or ment, either part-time or full-time. her right to compensation for wage loss (See § 10.5(g) for a definition of ‘‘earn- under 5 U.S.C. 8105 or 8106 is suspended ings’’.) until OWCP receives the requested re- (b) The employee must report even port. At that time, OWCP will rein- those earnings which do not seem like- state compensation retroactive to the ly to affect his or her level of benefits. date of suspension if the employee re- Many kinds of income, though not all, mains entitled to compensation.
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§ 10.529 What action will OWCP take if § 10.536 What is the penalty for failing the employee files an incomplete re- to submit a report of dependents? port? If an employee fails to submit a re- (a) If an employee knowingly omits quested statement or supporting docu- or understates any earnings or work ment within 30 days of the date of the activity in making a report, he or she request, OWCP will suspend his or her shall forfeit the right to compensation right to augmented compensation until with respect to any period for which OWCP receives the requested state- the report was required. A false or eva- ment or supporting document. At that sive statement, omission, concealment, time, OWCP will reinstate augmented or misrepresentation with respect to compensation retroactive to the date employment activity or earnings in a of suspension, provided that the em- report may also subject an employee to ployee is entitled to receive augmented criminal prosecution. compensation. (b) Where the right to compensation § 10.537 What reports are needed when is forfeited, OWCP shall recover any compensation payments continue compensation already paid for the pe- for children over age 18? riod of forfeiture pursuant to 5 U.S.C. (a) Compensation payable on behalf 8129 and other relevant statutes. of a child that would otherwise end when the child reaches 18 years of age REPORTS OF DEPENDENTS will continue if and for so long as he or she is not married and is either a stu- § 10.535 How are dependents defined, and what information must the em- dent as defined in 5 U.S.C. 8101(17), or ployee report? physically or mentally incapable of self-support. (a) Dependents in disability cases are (b) At least twice each year, OWCP defined in § 10.405. While the employee will ask an employee who receives has one or more dependents, the em- compensation based on the student sta- ployee’s basic compensation for wage tus of a child to provide proof of con- loss or for permanent impairment shall tinuing entitlement to such compensa- be augmented as provided in 5 U.S.C. tion, including certification of school 8110. (The rules for death claims are enrollment. found in § 10.414.) (c) Likewise, at least twice each (b) An employee who is receiving year, OWCP will ask an employee who augmented compensation on account of receives compensation based on a dependents must advise OWCP imme- child’s physical or mental inability to diately of any change in the number or support himself or herself to submit a status of dependents. The employee medical report verifying that the should also promptly refund to OWCP child’s medical condition persists and any amounts received on account of that it continues to preclude self-sup- augmented compensation after the port. right to receive augmented compensa- (d) If an employee fails to submit tion has ceased. Any difference be- proof within 30 days of the date of the tween actual entitlement and the request, OWCP will suspend the em- amount already paid beyond the date ployee’s right to compensation until entitlement ended is an overpayment the requested information is received. At that time OWCP will reinstate com- of compensation and may be recovered pensation retroactive to the date of pursuant to 5 U.S.C. 8129 and other rel- suspension, provided the employee is evant statutes. entitled to such compensation. (c) An employee who is receiving augmented compensation shall be peri- REDUCTION AND TERMINATION OF odically required to submit a state- COMPENSATION ment as to any dependents, or to sub- mit supporting documents such as § 10.540 When and how is compensa- birth or marriage certificates or court tion reduced or terminated? orders, to determine if he or she is still (a) Except as provided in paragraphs entitled to augmented compensation. (b) and (c) of this section, where the
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evidence establishes that compensation § 10.541 What action will OWCP take should be either reduced or terminated, after issuing written notice of its OWCP will provide the beneficiary with intention to reduce or terminate written notice of the proposed action compensation? and give him or her 30 days to submit (a) If the beneficiary submits evi- relevant evidence or argument to sup- dence or argument prior to the port entitlement to continued payment issuance of the decision, OWCP will of compensation. This notice will in- evaluate it in light of the proposed ac- clude a description of the reasons for tion and undertake such further devel- the proposed action and a copy of the opment as it may deem appropriate, if specific evidence upon which OWCP is any. Evidence or argument which is basing its determination. Payment of repetitious, cumulative, or irrelevant compensation will continue until any will not require any further develop- evidence or argument submitted has ment. If the beneficiary does not re- been reviewed and an appropriate deci- spond within 30 days of the written no- sion has been issued, or until 30 days tice, OWCP will issue a decision con- have elapsed if no additional evidence sistent with its prior notice. OWCP will or argument is submitted. not grant any request for an extension (b) OWCP will not provide such writ- of this 30-day period. ten notice when the beneficiary has no (b) Evidence or argument which re- reasonable basis to expect that pay- futes the evidence upon which the pro- ment of compensation will continue. posed action was based will result in For example, when a claim has been the continued payment of compensa- made for a specific period of time and tion. If the beneficiary submits evi- dence or argument which fails to refute that specific period expires, no written the evidence upon which the proposed notice will be given. Written notice action was based but which requires will also not be given when a bene- further development, OWCP will not ficiary dies, when OWCP either reduces provide the beneficiary with another or terminates compensation upon an notice of its proposed action upon com- employee’s return to work, when pletion of such development. Once any OWCP terminates only medical bene- further development of the evidence is fits after a physician indicates that completed, OWCP will either continue further medical treatment is not nec- payment or issue a decision consistent essary or has ended, or when OWCP de- with its prior notice. nies payment for a particular medical expense. Subpart G—Appeals Process (c) OWCP will also not provide such written notice when compensation is § 10.600 How can final decisions of terminated, suspended or forfeited due OWCP be reviewed? to one of the following: A beneficiary’s There are three methods for review- conviction for fraud in connection with ing a formal decision of the OWCP a claim under the FECA; a bene- (§§ 10.125–10.127 discuss how decisions ficiary’s incarceration based on any are made). These methods are: recon- felony conviction; an employee’s fail- sideration by the district office; a hear- ure to report earnings from employ- ing before an OWCP hearing represent- ment or self-employment; an employ- ative; and appeal to the Employees’ ee’s failure or refusal to either con- Compensation Appeals Board (ECAB). tinue performing suitable work or to For each method there are time limita- accept an offer of suitable work; or an tions and other restrictions which may employee’s refusal to undergo or ob- apply, and not all options are available struction of a directed medical exam- for all decisions, so the employee ination or treatment for substance should consult the requirements set abuse. forth below. Further rules governing
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appeals to the ECAB are found at part dence of error on the part of OWCP in 501 of this title. its most recent merit decision. The ap- plication must establish, on its face, RECONSIDERATIONS AND REVIEWS BY THE that such decision was erroneous. DIRECTOR (c) The year in which a claimant has to timely request reconsideration shall § 10.605 What is reconsideration? not include any period subsequent to The FECA provides that the Director an OWCP decision for which the claim- may review an award for or against ant can establish through probative compensation upon application by an medical evidence that he or she is un- employee (or his or her representative) able to communicate in any way and who receives an adverse decision. The that his or her testimony is necessary employee shall exercise this right in order to obtain modification of the through a request to the district office. decision. The request, along with the supporting statements and evidence, is called the § 10.608 How does OWCP decide ‘‘application for reconsideration.’’ whether to grant or deny the re- quest for reconsideration? § 10.606 How does a claimant request (a) A timely request for reconsider- reconsideration? ation may be granted if OWCP deter- (a) An employee (or representative) mines that the employee has presented seeking reconsideration should send evidence and/or argument that meets the application for reconsideration to at least one of the standards described the address as instructed by OWCP in in § 10.606(b)(2). If reconsideration is the final decision. granted, the case is reopened and the (b) The application for reconsider- case is reviewed on its merits (see ation, including all supporting docu- § 10.609). ments, must: (b) Where the request is timely but (1) Be submitted in writing; fails to meet at least one of the stand- (2) Set forth arguments and contain ards described in § 10.606(b)(2), or where evidence that either: the request is untimely and fails to (i) Shows that OWCP erroneously ap- present any clear evidence of error, plied or interpreted a specific point of OWCP will deny the application for re- law; consideration without reopening the (ii) Advances a relevant legal argu- case for a review on the merits. A deci- ment not previously considered by sion denying an application for recon- OWCP; or sideration cannot be the subject of an- (iii) Constitutes relevant and perti- other application for reconsideration. nent new evidence not previously con- The only review for this type of non- sidered by OWCP. merit decision is an appeal to the ECAB (see § 10.625), and OWCP will not § 10.607 What is the time limit for re- entertain a request for reconsideration questing reconsideration? or a hearing on this decision denying (a) An application for reconsider- reconsideration. ation must be sent within one year of the date of the OWCP decision for § 10.609 How does OWCP decide which review is sought. If submitted by whether new evidence requires mail, the application will be deemed modification of the prior decision? timely if postmarked by the U.S. Post- When application for reconsideration al Service within the time period al- is granted, OWCP will review the deci- lowed. If there is no such postmark, or sion for which reconsideration is it is not legible, other evidence such as sought on the merits and determine (but not limited to) certified mail re- whether the new evidence or argument ceipts, certificate of service, and affi- requires modification of the prior deci- davits, may be used to establish the sion. mailing date. (a) After OWCP decides to grant re- (b) OWCP will consider an untimely consideration, but before undertaking application for reconsideration only if the review, OWCP will send a copy of the application demonstrates clear evi- the reconsideration application to the
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employer, which will have 20 days from limited to a review of the merits of the the date sent to comment or submit resulting decision. The Director’s de- relevant documents. OWCP will pro- termination to review the award is not vide any such comments to the em- reviewable. ployee, who will have 20 days from the date the comments are sent to him or HEARINGS her within which to comment. If no comments are received from the em- § 10.615 What is a hearing? ployer, OWCP will proceed with the A hearing is a review of an adverse merit review of the case. decision by a hearing representative. (b) A claims examiner who did not Initially, the claimant can choose be- participate in making the contested tween two formats: An oral hearing or decision will conduct the merit review a review of the written record. At the of the claim. When all evidence has discretion of the hearing representa- been reviewed, OWCP will issue a new tive, an oral hearing may be conducted merit decision, based on all the evi- dence in the record. A copy of the deci- by telephone or teleconference. In addi- sion will be provided to the agency. tion to the evidence of record, the em- (c) An employee dissatisfied with this ployee may submit new evidence to the new merit decision may again request hearing representative. reconsideration under this subpart or appeal to the ECAB. An employee may § 10.616 How does a claimant obtain a hearing? not request a hearing on this decision. (a) A claimant, injured on or after § 10.610 What is a review by the Direc- July 4, 1966, who has received a final tor? adverse decision by the district office The FECA specifies that an award for may obtain a hearing by writing to the or against payment of compensation address specified in the decision. The may be reviewed at any time on the Di- hearing request must be sent within 30 rector’s own motion. Such review may days (as determined by postmark or be made without regard to whether other carrier’s date marking) of the there is new evidence or information. If date of the decision for which a hearing the Director determines that a review is sought. The claimant must not have of the award is warranted (including, previously submitted a reconsideration but not limited to circumstances indi- request (whether or not it was granted) cating a mistake of fact or law or on the same decision. changed conditions), the Director (at (b) The claimant may specify the any time and on the basis of existing type of hearing desired when making evidence) may modify, rescind, de- the original hearing request. If the re- crease or increase compensation pre- quest does not specify a format, OWCP viously awarded, or award compensa- will schedule an oral hearing. The tion previously denied. A review on the Director’s own motion is not subject to claimant can request a change in the a request or petition and none shall be format of the hearing by making a entertained. written request to the Branch of Hear- (a) The decision whether or not to re- ings and Review. OWCP will grant a re- view an award under this section is quest received by the Branch of Hear- solely within the discretion of the Di- ings and Review within 30 days of: The rector. The Director’s exercise of this date OWCP acknowledges the initial discretion is not subject to review by hearing request, or the date OWCP the ECAB, nor can it be the subject of issues a notice setting a date for an a reconsideration or hearing request. oral hearing, in cases where the initial (b) Where the Director reviews an request was for, or was treated as a re- award on his or her own motion, any quest for, an oral hearing. A request re- resulting decision is subject as appro- ceived after those dates will be subject priate to reconsideration, a hearing to OWCP’s discretion. The decision to and/or appeal to the ECAB. Jurisdic- grant or deny a change of format is not tion on review or on appeal to ECAB is reviewable.
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§ 10.617 How is an oral hearing con- the claimant and/or representative at ducted? or near the place of the oral presen- (a) The hearing representative re- tation. tains complete discretion to set the § 10.618 How is a review of the written time and place of the hearing, includ- record conducted? ing the amount of time allotted for the hearing, considering the issues to be (a) The hearing representative will resolved. review the official record and any addi- (b) Unless otherwise directed in writ- tional evidence submitted by the ing by the claimant, the hearing rep- claimant and by the agency. The hear- resentative will mail a notice of the ing representative may also conduct time and place of the oral hearing to whatever investigation is deemed nec- the claimant and any representative at essary. New evidence and arguments least 30 days before the scheduled date. are to be submitted at any time up to The employer will also be mailed a no- the time specified by OWCP, but they tice at least 30 days before the sched- should be submitted as soon as possible uled date. to avoid delaying the hearing process. (c) The hearing is an informal proc- (b) The claimant should submit, with ess, and the hearing representative is his or her application for review, all not bound by common law or statutory evidence or argument that he or she rules of evidence, by technical or for- wants to present to the hearing rep- mal rules of procedure or by section 5 resentative. A copy of all pertinent ma- of the Administrative Procedure Act, terial will be sent to the employer, but the hearing representative may which will have 20 days from the date conduct the hearing in such manner as it is sent to comment. (Medical evi- to best ascertain the rights of the dence is not considered ‘‘pertinent’’ for claimant. During the hearing process, review and comment by the agency, the claimant may state his or her argu- and it will therefore not be furnished ments and present new written evi- to the agency. OWCP has sole responsi- dence in support of the claim. bility for evaluating medical evidence.) (d) Testimony at oral hearings is re- The employer shall send any comments corded, then transcribed and placed in to the claimant, who will have 20 more the record. Oral testimony shall be days from the date of the agency’s cer- made under oath. tificate of service to comment. (e) OWCP will furnish a transcript of the oral hearing to the claimant and § 10.619 May subpoenas be issued for the employer, who have 20 days from witnesses and documents? the date it is sent to comment. Any A claimant may request a subpoena, comments received from the employer but the decision to grant or deny such shall be sent to the claimant, who will a request is within the discretion of the be given an additional 20 days to com- hearing representative. The hearing ment from the date OWCP sends any representative may issue subpoenas for agency comments. the attendance and testimony of wit- (f) The hearing remains open for the nesses, and for the production of books, submittal of additional evidence until records, correspondence, papers or 30 days after the hearing is held, unless other relevant documents. Subpoenas the hearing representative, in his or are issued for documents only if they her sole discretion, grants an exten- are relevant and cannot be obtained by sion. Only one such extension may be other means, and for witnesses only granted. A copy of the decision will be where oral testimony is the best way mailed to the claimant’s last known to ascertain the facts. address, to any representative, and to (a) A claimant may request a sub- the employer. poena only as part of the hearings (g) The hearing representative deter- process, and no subpoena will be issued mines the conduct of the oral hearing under any other part of the claims and may terminate the hearing at any process. To request a subpoena, the re- time he or she determines that all rel- questor must: evant evidence has been obtained, or (1) Submit the request in writing and because of misbehavior on the part of send it to the hearing representative as
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early as possible but no later than 60 the agency representative cannot give days (as evidenced by postmark, elec- testimony or argument or otherwise tronic marker or other objective date participate in the hearing, except mark) after the date of the original where the claimant or the hearing rep- hearing request. resentative specifically asks the agen- (2) Explain why the testimony or evi- cy representative to testify. dence is directly relevant to the issues (b) The hearing representative may at hand, and a subpoena is the best deny a request by the claimant that method or opportunity to obtain such the agency representative testify evidence because there are no other where the claimant cannot show that means by which the documents or tes- the testimony would be relevant or timony could have been obtained. where the agency representative does (b) No subpoena will be issued for at- not have the appropriate level of tendance of employees of OWCP acting knowledge to provide such evidence at in their official capacities as decision- the hearing. The employer may also makers or policy administrators. For comment on the hearing transcript, as hearings taking the form of a review of described in § 10.617(e). the written record, no subpoena for the appearance of witnesses will be consid- § 10.622 May a claimant withdraw a re- ered. quest for or postpone a hearing? (c) The hearing representative issues (a) The claimant and/or representa- the subpoena under his or her own tive may withdraw the hearing request name. It may be served in person or by at any time up to and including the certified mail, return receipt re- day the hearing is held, or the decision quested, addressed to the person to be issued. Withdrawing the hearing re- served at his or her last known prin- quest means the record is returned to cipal place of business or residence. A the jurisdiction of the district office decision to deny a subpoena can only and no further requests for a hearing be appealed as part of an appeal of any on the underlying decision will be con- adverse decision which results from the hearing. sidered. (b) OWCP will entertain any reason- § 10.620 Who pays the costs associated able request for scheduling the oral with subpoenas? hearing, but such requests should be (a) Witnesses who are not employees made at the time of the original appli- or former employees of the Federal cation for hearing. Scheduling is at the Government shall be paid the same fees sole discretion of the hearing rep- and mileage as paid for like services in resentative, and is not reviewable. the District Court of the United States Once the oral hearing is scheduled and where the subpoena is returnable, ex- OWCP has mailed appropriate written cept that expert witnesses shall be paid notice to the claimant, the oral hear- a fee not to exceed the local customary ing cannot be postponed at the claim- fee for such services. ant’s request for any reason except (b) Where OWCP asked that the wit- those stated in paragraph (c) of this ness submit evidence into the case section, unless the hearing representa- record or asked that the witness at- tive can reschedule the hearing on the tend, OWCP shall pay the fees and same docket (that is, during the same mileage. Where the claimant requested hearing trip). When the request to the subpoena, and where the witness postpone a scheduled hearing does not submitted evidence into the record at meet the test of paragraph (c) of this the request of the claimant, the claim- section and cannot be accommodated ant shall pay the fees and mileage. on the docket, no further opportunity for an oral hearing will be provided. In- § 10.621 What is the employer’s role stead, the hearing will take the form of when an oral hearing has been re- a review of the written record and a de- quested? cision issued accordingly. In the alter- (a) The employer may send one (or native, a teleconference may be sub- more, where appropriate) representa- stituted for the oral hearing at the dis- tive(s) to observe the proceeding, but cretion of the hearing representative.
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(c) Where the claimant is hospital- evidence. Nevertheless, a claimant may ized for a reason which is not elective, appoint one individual to represent his or where the death of the claimant’s or her interests, but the appointment parent, spouse, or child prevents at- must be in writing. tendance at the hearing, a postpone- (b) There can be only one representa- ment may be granted upon proper doc- tive at any one time, so after one rep- umentation. resentative has been properly ap- pointed, OWCP will not recognize an- REVIEW BY THE EMPLOYEES’ other individual as representative until COMPENSATION APPEALS BOARD (ECAB) the claimant withdraws the authoriza- tion of the first individual. In addition, § 10.625 What kinds of decisions may be appealed? OWCP will recognize only certain types of individuals (see § 10.701). Only final decisions of OWCP may be (c) A properly appointed representa- appealed to the ECAB. However, cer- tive who is recognized by OWCP may tain types of final decisions, described make a request or give direction to in this part as not subject to further OWCP regarding the claims process, in- review, cannot be appealed to the cluding a hearing. This authority in- ECAB. Decisions that are not appeal- cludes presenting or eliciting evidence, able to the ECAB include: Decisions making arguments on facts or the law, concerning the amounts payable for and obtaining information from the medical services, decisions concerning case file, to the same extent as the exclusion and reinstatement of medical claimant. Any notice requirement con- providers, decisions by the Director to tained in this part or the FECA is fully review an award on his or her own mo- satisfied if served on the representa- tion, and denials of subpoenas inde- pendent of the appeal of the underlying tive, and has the same force and effect decision. In appeals before the ECAB, as if sent to the claimant. attorneys from the Office of the Solic- § 10.701 Who may serve as a represent- itor of Labor shall represent OWCP. ative? § 10.626 Who has jurisdiction of cases A claimant may authorize any indi- on appeal to the ECAB? vidual to represent him or her in re- While a case is on appeal to the gard to a claim under the FECA, unless ECAB, OWCP has no jurisdiction over that individual’s service as a represent- the claim with respect to issues which ative would violate any applicable pro- directly relate to the issue or issues on vision of law (such as 18 U.S.C. 205 and appeal. The OWCP continues to admin- 208). A Federal employee may act as a ister the claim and retains jurisdiction representative only: over issues unrelated to the issue or (a) On behalf of immediate family issues on appeal and issues which arise members, defined as a spouse, children, after the appeal as a result of ongoing parents, and siblings of the representa- administration of the case. Such issues tive, provided no fee or gratuity is would include, for example, the ability charged; or to terminate benefits where an indi- (b) While acting as a union represent- vidual returns to work while an appeal ative, defined as any officially sanc- is pending at the ECAB. tioned union official, and no fee or gra- tuity is charged. Subpart H—Special Provisions § 10.702 How are fees for services REPRESENTATION paid? A representative may charge the § 10.700 May a claimant designate a claimant a fee and other costs associ- representative? ated with the representation before (a) The claims process under the OWCP. The claimant is solely respon- FECA is informal. Unlike many work- sible for paying the fee and other ers’ compensation laws, the employer charges. The claimant will not be reim- is not a party to the claim, and OWCP bursed by OWCP, nor is OWCP in any acts as an impartial evaluator of the way liable for the amount of the fee.
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Administrative costs (mailing, copy- excess of the value of services received ing, messenger services, travel and the by looking at the following factors: like, but not including secretarial serv- (i) Usefulness of the representative’s ices, paralegal and other activities) services; need not be approved before the rep- (ii) The nature and complexity of the resentative collects them. Before any claim; fee for services can be collected, how- (iii) The actual time spent on devel- ever, the fee must be approved by the opment and presentation of the claim; Secretary. (Collecting a fee without and this approval may constitute a mis- (iv) Customary local charges for demeanor under 18 U.S.C. 292.) similar services. (2) Where the claimant disputes the § 10.703 How are fee applications ap- proved? representative’s request and files an objection with OWCP, an appealable (a) Fee Application. (1) The represent- decision will be issued. ative must submit the fee application to the district office and/or the Branch THIRD PARTY LIABILITY of Hearings and Review, according to where the work for which the fee is § 10.705 When must an employee or charged was performed. The applica- other FECA beneficiary take action tion shall contain the following: against a third party? (i) An itemized statement showing (a) If an injury or death for which the representative’s hourly rate, the benefits are payable under the FECA is number of hours worked and specifi- caused, wholly or partially, by some- cally identifying the work performed one other than a Federal employee act- and a total amount charged for the rep- ing within the scope of his or her em- resentation (excluding administrative ployment, the claimant can be required costs). to take action against that third party. (ii) A statement of agreement or dis- (b) The Office of the Solicitor of agreement with the amount charged, Labor (SOL) is hereby delegated au- signed by the claimant. The statement thority to administer the subrogation must also acknowledge that the claim- aspects of certain FECA claims for ant is aware that he or she must pay OWCP. Either OWCP or SOL can re- the fees and that OWCP is not respon- quire a FECA beneficiary to assign his sible for paying the fee or other costs. or her claim for damages to the United (2) An incomplete application will be States or to prosecute the claim in his returned with no further comment. or her own name. (b) Approval where there is no dispute. Where a fee application is accompanied § 10.706 How will a beneficiary know if by a signed statement indicating the OWCP or SOL has determined that claimant’s agreement with the fee as action against a third party is re- described in paragraph (a)(1)(ii) of this quired? section, the application is deemed ap- When OWCP determines that an em- proved. ployee or other FECA beneficiary must (c) Disputed requests. (1) Where the take action against a third party, it claimant disagrees with the amount of will notify the employee or beneficiary the fee, as indicated in the statement in writing. If the case is transferred to accompanying the submittal, OWCP SOL, a second notification may be will evaluate the objection and decide issued. whether or not to approve the request. OWCP will provide a copy of the re- § 10.707 What must a FECA beneficiary quest to the claimant and ask him or who is required to take action her to submit any further information against a third party do to satisfy in support of the objection within 15 the requirement that the claim be days from the date the request is for- ‘‘prosecuted’’? warded. After that period has passed, At a minimum, a FECA beneficiary OWCP will evaluate the information must do the following: received to determine whether the (a) Seek damages for the injury or amount of the fee is substantially in death from the third party, either
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through an attorney or on his or her ficiary will not be required to take fur- own behalf; ther action against the third party. (b) Either initiate a lawsuit within the appropriate statute of limitations § 10.710 Under what circumstances period or obtain a written release of must a recovery of money or other this obligation from OWCP or SOL un- property in connection with an in- jury or death for which benefits are less recovery is possible through a ne- payable under the FECA be re- gotiated settlement prior to filing suit; ported to OWCP or SOL? (c) Refuse to settle or dismiss the case for any amount less than the Any person who has filed a FECA amount necessary to repay OWCP’s re- claim that has been accepted by OWCP fundable disbursements, as defined in (whether or not compensation has been § 10.714, without receiving permission paid), or who has received FECA bene- from OWCP or SOL; fits in connection with a claim filed by (d) Provide periodic status updates another, is required to notify OWCP or and other relevant information in re- SOL of the receipt of money or other sponse to requests from OWCP or SOL; property as a result of a settlement or judgment in connection with the cir- (e) Submit detailed information cumstances of that claim. This in- about the amount recovered and the cludes an injured employee, and in the costs of the suit on a ‘‘Statement of case of a claim involving the death of Recovery’’ form approved by OWCP; an employee, a spouse, children or and other dependents entitled to receive (f) Pay any required refund. survivor’s benefits. OWCP or SOL should be notified in writing within 30 § 10.708 Can a FECA beneficiary who refuses to comply with a request to days of the receipt of such money or assign a claim to the United States other property or the acceptance of the or to prosecute the claim in his or FECA claim, whichever occurs later. her own name be penalized? § 10.711 How much of any settlement When a FECA beneficiary refuses a or judgment must be paid to the request to either assign a claim or United States? prosecute a claim in his or her own name, OWCP may determine that he or The statute permits a FECA bene- she has forfeited his or her right to all ficiary to retain, as a minimum, one- past or future compensation for the in- fifth of the net amount of money or jury with respect to which the request property remaining after a reasonable is made. Alternatively, OWCP may also attorney’s fee and the costs of litiga- suspend the FECA beneficiary’s com- tion have been deducted from the pensation payments until he or she third-party recovery. The United complies with the request. States shares in the litigation expense by allowing the beneficiary to retain, § 10.709 What happens if a beneficiary at the time of distribution, an amount directed by OWCP or SOL to take equivalent to a reasonable attorney’s action against a third party does fee proportionate to the refund due the not believe that a claim can be suc- United States. After the refund owed to cessfully prosecuted at a reasonable the United States is calculated, the cost? FECA beneficiary retains any surplus If a beneficiary consults an attorney remaining, and this amount is credited, and is informed that a suit for damages dollar for dollar, against future com- against a third party for the injury or pensation for the same injury, as de- death for which benefits are payable is fined in § 10.719. OWCP will resume the unlikely to prevail or that the costs of payment of compensation only after such a suit are not justified by the po- the FECA beneficiary has been awarded tential recovery, he or she should re- compensation which exceeds the quest that OWCP or SOL release him amount of the surplus. or her from the obligation to proceed. (a) The refund to the United States is This request should be in writing and calculated as follows, using the State- provide evidence of the attorney’s opin- ment of Recovery form approved by ion. If OWCP or SOL agrees, the bene- OWCP:
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(1) Determine the gross recovery as (4) Subtotal C ...... 57,600 set forth in § 10.712; Refundable Disbursements ...... 22,000 (2) Subtract the amount of attorney’s (5) Subtotal D (lower of Subtotal C or refundable fees actually paid, but not more than disbursements) ...... 22,000 (6) Government's allowance for attorney's fees the maximum amount of attorney’s [25,000 / 100,000) × 22,000] (attorney's fees fees considered by OWCP or SOL to be divided by gross recovery then multiplied by reasonable, from the gross recovery Subtotal D) ...... ¥5,500 (Subtotal A); Refund to the United States ...... 16,500 (3) Subtract the costs of litigation, as (7) Credit against future benefits [57,600 ¥ allowed by OWCP or SOL (Subtotal B); 22,000] (Subtotal C minus refundable disburse- (4) Subtract one fifth of Subtotal B ments) ...... 35,600 from Subtotal B (Subtotal C); (5) Compare Subtotal C and the re- § 10.712 What amounts are included in fundable disbursements as defined in the gross recovery? § 10.714. Subtotal D is the lower of the (a) When a settlement or judgment is two amounts. paid to, or for, one individual, the en- (6) Multiply Subtotal D by a percent- tire amount, except for the portion rep- age that is determined by dividing the resenting damage to real or personal gross recovery into the amount of at- property, is reported as the gross re- torney’s fees actually paid, but not covery. If a settlement or judgment is more than the maximum amount of at- paid to or for more than one individual torney’s fees considered by OWCP or or in more than one capacity, such as a SOL to be reasonable, to determine the joint payment to a husband and wife Government’s allowance for attorney’s for personal injury and loss of consor- fees, and subtract this amount from tium or a payment to a spouse rep- Subtotal D. resenting both loss of consortium and (b) The credit against future benefits wrongful death, the gross recovery to (also referred to as the surplus) is cal- be reported is the amount allocated to culated as follows: the injured employee. If a judge or jury (1) If Subtotal C, as calculated ac- specifies the percentage of a contested cording to paragraph (a)(4) of this sec- verdict attributable to each of several tion, is less than the refundable dis- plaintiffs, OWCP or SOL will accept bursements, as defined in § 10.714, there that division. is no credit to be applied against future (b) In any other case, where a judg- benefits; ment or settlement is paid to or on be- (2) If Subtotal C is greater than the half of more than one individual, refundable disbursements, the credit OWCP or SOL will determine the ap- against future benefits (or surplus) propriate amount of the FECA bene- amount is determined by subtracting ficiary’s gross recovery and advise the the refundable disbursements from beneficiary of its determination. FECA Subtotal C. beneficiaries may accept OWCP’s or (c) An example of how these calcula- SOL’s determination or demonstrate tions are made follows. In this exam- good cause for a different allocation. ple, a Federal employee sues another Whether to accept a specific allocation party for causing injuries for which the is at the discretion of SOL or OWCP. employee has received $22,000 in bene- fits under the FECA, subject to refund. § 10.713 How is a structured settle- The suit is settled and the injured em- ment (that is, a settlement pro- ployee receives $100,000, all of which viding for receipt of funds over a was for his injury. The injured worker specified period of time) treated for paid attorney’s fees of $25,000 and costs purposes of reporting the gross re- for the litigation of $3,000. covery? (1) Gross recovery ...... $100,000 In this situation, the gross recovery Attorney's fees ...... ¥25,000 to be reported is the present value of (2) Subtotal A ...... 75,000 the right to receive all of the payments (3) Costs of suit ...... ¥3,000 included in the structured settlement, Subtotal B ...... 72,000 allocated in the case of multiple recipi- One-fifth of Subtotal B ...... ¥14,400 ents in the same manner as single pay- ment recoveries. 55
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§ 10.714 What amounts are included in § 10.717 Is a settlement or judgment the refundable disbursements? received as a result of allegations of medical malpractice in treating an The refundable disbursements of a injury covered by the FECA a gross specific claim consist of the total recovery that must be reported to money paid by OWCP from the Em- OWCP or SOL? ployees’ Compensation Fund with re- Since an injury caused by medical spect to that claim to or on behalf of a malpractice in treating an injury cov- FECA beneficiary, less charges for any ered by the FECA is also an injury cov- medical file review (i.e., the physician ered under the FECA, any recovery in does not examine the employee) done a suit alleging such an injury is treated at the request of OWCP. Charges for as a gross recovery that must be re- medical examinations also may be sub- ported to OWCP or SOL. tracted if the FECA beneficiary estab- lishes that the examinations were re- § 10.718 Are payments to a beneficiary quired to be made available to the em- as a result of an insurance policy ployee under a statute other than the which the beneficiary has pur- chased a gross recovery that must FECA by the employing agency or at be reported to OWCP or SOL? the employing agency’s cost. Since payments received by a FECA § 10.715 Is a beneficiary required to beneficiary pursuant to an insurance pay interest on the amount of the policy purchased by someone other refund due to the United States? than a liable third party are not pay- ments in satisfaction of liability for If the refund due to the United States causing an injury covered by the is not submitted within 30 days of re- FECA, they are not considered a gross ceiving a request for payment from recovery covered by section 8132 that SOL or OWCP, interest shall accrue on requires filing a Statement of Recov- the refund due to the United States ery and paying any required refund. from the date of the request. The rate of interest assessed shall be the rate of § 10.719 If a settlement or judgment is the current value of funds to the received for more than one wound United States Treasury as published in or medical condition, can the re- the FEDERAL REGISTER (as of the date fundable disbursements paid on a single FECA claim be attributed to the request for payment is sent). Waiv- different conditions for purposes of er of the collection of interest shall be calculating the refund or credit in accordance with the provisions of owed to the United States? the Department of Labor regulations (a) All wounds, diseases or other on Federal Claims Collection governing medical conditions accepted by OWCP waiver of interest, 29 CFR 20.61. in connection with a single claim are treated as the same injury for the pur- § 10.716 If the required refund is not pose of computing any required refund paid within 30 days of the request and any credit against future benefits for repayment, can it be collected from payments due under the in connection with the receipt of a re- FECA? covery from a third party, except that an injury caused by medical mal- If the required refund is not paid practice in treating an injury covered within 30 days of the request for pay- under the FECA will be treated as a ment, OWCP can, in its discretion, col- separate injury for purposes of section lect the refund by withholding all or 8132. part of any payments currently pay- (b) If an injury covered under the able to the beneficiary under the FECA FECA is caused under circumstances with respect to any injury. The waiver creating a legal liability in more than provisions of §§ 10.432 through 10.440 do one person, other than the United not apply to such determinations. States, to pay damages, OWCP or SOL
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will determine whether recoveries re- PEACE CORPS VOLUNTEERS ceived from one or more third parties should be attributed to separate condi- § 10.730 What are the conditions of tions for which compensation is pay- coverage for Peace Corps volun- teers and volunteer leaders injured able in connection with a single FECA while serving outside the United claim. If such an attribution is both States? practicable and equitable, as deter- (a) Any injury sustained by a volun- mined by OWCP or SOL, in its discre- teer or volunteer leader while he or she tion, the conditions will be treated as is located abroad shall be presumed to separate injuries for purposes of calcu- have been sustained in the performance lating the refund and credit owed to of duty, and any illness contracted dur- the United States under section 8132. ing such time shall be presumed to be proximately caused by the employ- FEDERAL GRAND AND PETIT JURORS ment. However, this presumption will § 10.725 When is a Federal grand or be rebutted by evidence that: petit juror covered under the (1) The injury or illness was caused FECA? by the claimant’s willful misconduct, intent to bring about the injury or (a) Federal grand and petit jurors are death of self or another, or was proxi- covered under the FECA when they are mately caused by the intoxication by in performance of duty as a juror, alcohol or illegal drugs of the injured which includes that time when a juror claimant; or is: (2) The illness is shown to have pre- (1) In attendance at court pursuant existed the period of service abroad; or to a summons; (3) The injury or illness claimed is a (2) In deliberation; manifestation of symptoms of, or con- (3) Sequestered by order of a judge; or sequent to, a pre-existing congenital (4) At a site, by order of the court, for defect or abnormality. the taking of a view. (b) If the presumption that an injury (b) A juror is not considered to be in or illness was sustained in the perform- the performance of duty while trav- ance of duty is rebutted as provided by eling to or from home in connection paragraph (a) of this section, the with the activities enumerated in para- claimant has the burden of proving by graphs (a) (1) through (4) of this sec- the submittal of substantial and pro- tion. bative evidence that such injury or ill- ness was sustained in the performance § 10.726 When does a juror’s entitle- of duty with the Peace Corps. ment to disability compensation (c) If an injury or illness, or episode begin? thereof, comes within one of the excep- tions described in paragraph (a) (2) or Pursuant to 28 U.S.C. 1877, entitle- (3) of this section, the claimant may ment to disability compensation does nonetheless be entitled to compensa- not commence until the day after the tion. This will be so provided he or she date of termination of service as a meets the burden of proving by the juror. submittal of substantial, probative and rationalized medical evidence that the § 10.727 What is the pay rate of jurors for compensation purposes? illness or injury was proximately caused by factors or conditions of For the purpose of computing com- Peace Corps service, or that it was ma- pensation payable for disability or terially aggravated, accelerated or pre- death, a juror is deemed to receive pay cipitated by factors of Peace Corps at the minimum rate for Grade GS–2 of service. the General Schedule unless his or her actual pay as an ‘‘employee’’ of the § 10.731 What is the pay rate of Peace United States while serving on court Corps volunteers and volunteer leave is higher, in which case the pay leaders for compensation purposes? rate for compensation purposes is de- The pay rate for these claimants is termined in accordance with 5 U.S.C. defined as the pay rate in effect on the 8114. date following separation, provided
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that the rate equals or exceeds the pay § 10.738 Under what circumstances are rate on the date of injury. It is defined benefits payable in LEO claims? in accordance with 5 U.S.C. 8142(a), not (a) Benefits are payable when an offi- 8101(4). cer is injured while apprehending, or attempting to apprehend, an individual NON-FEDERAL LAW ENFORCEMENT for the commission of a Federal crime. OFFICERS However, either an actual Federal § 10.735 When is a non-Federal law en- crime must be in progress or have been forcement officer (LEO) covered committed, or objective evidence (of under the FECA? which the officer is aware at the time of injury) must exist that a potential (a) A law enforcement officer (officer) Federal crime was in progress or had includes an employee of a State or already been committed. The actual or local Government, the Governments of potential Federal crime must be an in- U.S. possessions and territories, or an tegral part of the criminal activity to- employee of the United States ward which the officer’s actions are di- pensioned or pensionable under sec- rected. The fact that an injury to an tions 521–535 of Title 4, D.C. Code, officer is related in some way to the whose functions include the activities commission of a Federal crime does listed in 5 U.S.C. 8191. not necessarily bring the injury within (b) Benefits are available to officers the coverage of the FECA. The FECA is who are not ‘‘employees’’ under 5 not intended to cover officers who are U.S.C. 8101, and who are determined in merely enforcing local laws. the discretion of OWCP to have been (b) For benefits to be payable when engaged in the activities listed in 5 an officer is injured preventing, or at- U.S.C. 8191 with respect to the enforce- tempting to prevent, a Federal crime, ment of crimes against the United there must be objective evidence that a States. Individuals who only perform Federal crime is about to be com- administrative functions in support of mitted. An officer’s belief, unsupported officers are not considered officers. by objective evidence, that he or she is (c) Except as provided by 5 U.S.C. acting to prevent the commission of a 8191 and 8192 and elsewhere in this part, Federal crime will not result in cov- the provisions of the FECA and of sub- erage. Moreover, the officer’s subjec- parts A, B, and D through I of this part tive intent, as measured by all avail- apply to officers. able evidence (including the officer’s own statements and testimony, if § 10.736 What are the time limits for filing a LEO claim? available), must have been directed to- ward the prevention of a Federal crime. OWCP must receive a claim for bene- In this context, an officer’s own state- fits under 5 U.S.C. 8191 within five ments and testimony are relevant to, years after the injury or death. This but do not control, the determination five-year limitation is not subject to of coverage. waiver. The tolling provisions of 5 U.S.C. 8122(d) do not apply to these § 10.739 What kind of objective evi- claims. dence of a potential Federal crime must exist for coverage to be ex- § 10.737 How is a LEO claim filed, and tended? who can file a LEO claim? Based on the facts available at the A claim for injury or occupational time of the event, the officer must disease should be filed on Form CA–721; have an awareness of sufficient infor- a death claim should be filed on Form mation which would lead a reasonable CA–722. All claims should be submitted officer, under the circumstances, to to the officer’s employer for comple- conclude that a Federal crime was in tion and forwarding to OWCP. A claim progress, or was about to occur. This may be filed by the officer, the officer’s awareness need not extend to the pre- survivor, or any person or association cise particulars of the crime (the sec- authorized to act on behalf of an officer tion of Title 18, United States Code, for or an officer’s survivors. example), but there must be sufficient
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evidence that the officer was in fact en- the employer are not considered to be gaged in actual or attempted apprehen- comparable benefits. sion of a Federal criminal or preven- (c) The FECA provides that, where an tion of a Federal crime. officer receives comparable benefits, compensation benefits are to be re- § 10.740 In what situations will OWCP duced proportionally in a manner that automatically presume that a law reflects the relative percentage con- enforcement officer is covered by tribution of the officer and the officer’s the FECA? employer to the fund which is the (a) Where an officer is detailed by a source of the comparable benefit. competent State or local authority to Where the source of the comparable assist a Federal law enforcement au- benefit is a retirement or other system thority in the protection of the Presi- which is not fully funded, the calcula- dent of the United States, or any other tion of the amount of the reduction person actually provided or entitled to will be based on a per capita compari- U.S. Secret Service protection, cov- son between the contribution by the erage will be extended. employer and the contribution by all (b) Coverage for officers of the U.S. covered officers during the year prior Park Police and those officers of the to the officer’s injury or death. Uniformed Division of the U.S. Secret (d) The non-receipt of compensation Service who participate in the District during a period where a dual benefit of Columbia Retirement System is ad- (such as a lump-sum payment on the judicated under the principles set forth death of an officer) is being offset in paragraph (a) of this section, and against compensation entitlement does not result in an adjustment of the re- does not extend to numerous tangen- spective benefit percentages of remain- tial activities of law enforcement (for ing beneficiaries because of a cessation example, reporting to work, changing of compensation under 5 U.S.C. 8133(c). clothes). However, officers of the Non- Uniformed Division of the U.S. Secret Service who participate in the District Subpart I—Information for Medical of Columbia Retirement System are Providers covered under the FECA during the MEDICAL RECORDS AND BILLS performance of all official duties. § 10.800 What kind of medical records § 10.741 How are benefits calculated in must providers keep? LEO claims? Agency medical officers, private phy- (a) Except for continuation of pay, el- sicians and hospitals are required to igible officers and survivors are enti- keep records of all cases treated by tled to the same benefits as if the offi- them under the FECA so they can sup- cer had been an employee under 5 ply OWCP with a history of the injury, U.S.C. 8101. However, such benefits a description of the nature and extent may be reduced or adjusted as OWCP in of injury, the results of any diagnostic its discretion may deem appropriate to studies performed, the nature of the reflect comparable benefits which the treatment rendered and the degree of officer or survivor received or would any impairment and/or disability aris- have been entitled to receive by virtue ing from the injury. of the officer’s employment. (b) For the purpose of this section, a § 10.801 How are medical bills to be comparable benefit includes any ben- submitted? efit that the officer or survivor is enti- (a) All charges for medical and sur- tled to receive because of the officer’s gical treatment, appliances or supplies employment, including pension and furnished to injured employees, except disability funds, State workers’ com- for treatment and supplies provided by pensation payments, Public Safety Of- nursing homes, shall be supported by ficers’ Benefits Act payments, and medical evidence as provided in § 10.800. State and local lump-sum payments. The physician or provider shall itemize Health benefits coverage and proceeds the charges on the standard Health In- of life insurance policies purchased by surance Claim Form, HCFA 1500 or
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OWCP 1500, (for professional charges), Claim Form and submit them promptly the UB–92 (for hospitals), the Universal to OWCP. Bills for prescription medica- Claim Form (for pharmacies), or other tions must include the NDC assigned to form as warranted, and submit the the product, the generic or trade name form promptly to OWCP. of the drug provided, the prescription (b) The provider shall identify each number, the quantity provided, and the service performed using the Physi- date the prescription was filled. cian’s Current Procedural Terminology (3) Nursing homes shall itemize (CPT) code, the Health Care Financing charges for appliances, supplies or serv- Administration Common Procedure ices on the provider’s billhead sta- Coding System (HCPCS) code, the Na- tionery and submit them promptly to tional Drug Code (NDC), or the Rev- OWCP. enue Center Code (RCC), with a brief (d) By submitting a bill and/or ac- narrative description. Where no code is cepting payment, the provider signifies applicable, a detailed description of that the service for which reimburse- services performed should be provided. ment is sought was performed as de- (c) The provider shall also state each scribed and was necessary. In addition, diagnosed condition and furnish the the provider thereby agrees to comply corresponding diagnostic code using with all regulations set forth in this the ‘‘International Classification of subpart concerning the rendering of Disease, 9th Edition, Clinical Modifica- treatment and/or the process for seek- tion’’ (ICD–9-CM), or as revised. A sepa- ing reimbursement for medical serv- rate bill shall be submitted when the ices, including the limitation imposed employee is discharged from treatment on the amount to be paid for such serv- or monthly, if treatment for the work- ices. related condition is necessary for more (e) In summary, bills submitted by than 30 days. providers must: be itemized on the (1)(i) Hospitals shall submit charges Health Insurance Claim Form (for phy- for medical and surgical treatment or sicians), the UB–92 (for hospitals), or supplies promptly to OWCP on the Uni- the Universal Claim Form (for phar- form Bill (UB–92). The provider shall macies); contain the signature or sig- identify each outpatient radiology nature stamp of the provider; and iden- service, outpatient pathology service tify the procedures using HCPCS/CPT and physical therapy service per- codes, RCCs, or NDCs. Otherwise, formed, using HCPCS/CPT codes with a OWCP may return the bill to the pro- brief narrative description. The charge vider for correction and resubmission. for each individual service, or the total § 10.802 How should an employee pre- charge for all identical services, should pare and submit requests for reim- also appear in the UB–92. bursement for medical expenses, (ii) Other outpatient hospital serv- transportation costs, loss of wages, ices for which HCPCS/CPT codes exist and incidental expenses? shall also be coded individually using (a) If an employee has paid bills for the coding scheme noted in this para- medical, surgical or dental services, graph. Services for which there are no supplies or appliances due to an injury HCPCS/CPT codes available can be pre- sustained in the performance of duty, sented using the RCCs described in the he or she may submit an itemized bill ‘‘National Uniform Billing Data Ele- on the Health Insurance Claim Form, ments Specifications’’, current edition. HCFA 1500 or OWCP 1500, together with The provider shall also furnish the di- a medical report as provided in § 10.800, agnostic code using the ICD–9–CM. If to OWCP for consideration. the outpatient hospital services in- (1) The provider of such service shall clude surgical and/or invasive proce- state each diagnosed condition and fur- dures, the provider shall code each pro- nish the applicable ICD–9–CM code and cedure using the proper CPT/HCPCS identify each service performed using codes and furnishing the corresponding the applicable HCPCS/CPT code, with a diagnostic codes using the ICD–9–CM. brief narrative description of the serv- (2) Pharmacies shall itemize charges ice performed, or, where no code is ap- for prescription medications, appli- plicable, a detailed description of that ances, or supplies on the Universal service.
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(2) The bill must be accompanied by refund of any excess amount, or the evidence that the provider received date of a subsequent reconsideration payment for the service from the em- decision which continues to disallow ployee and a statement of the amount all or a portion of the appealed paid. Acceptable evidence that pay- amount, OWCP shall initiate exclusion ment was received includes, but is not procedures as provided by § 10.815. limited to, a signed statement by the (g) If the provider does not refund to provider, a mechanical stamp or other the employee or credit to his or her ac- device showing receipt of payment, a count the amount of money paid in ex- copy of the employee’s canceled check cess of the charge which OWCP allows, (both front and back) or a copy of the the employee should submit docu- employee’s credit card receipt. mentation of the attempt to obtain (b) If services were provided by a hos- such refund or credit to OWCP. OWCP pital, pharmacy or nursing home, the may make reasonable reimbursement employee should submit the bill in ac- to the employee after reviewing the cordance with the provisions of facts and circumstances of the case. § 10.801(a). Any request for reimburse- ment must be accompanied by evi- § 10.803 What are the time limitations dence, as described in paragraph (a) of on OWCP’s payment of bills? this section, that the provider received OWCP will pay providers and reim- payment for the service from the em- burse employees promptly for all bills ployee and a statement of the amount received on an approved form and in a paid. timely manner. However, no bill will be (c) OWCP may waive the require- paid for expenses incurred if the bill is ments of paragraphs (a) and (b) of this submitted more than one year beyond section if extensive delays in the filing the end of the calendar year in which or the adjudication of a claim make it the expense was incurred or the service unusually difficult for the employee to or supply was provided, or more than obtain the required information. one year beyond the end of the cal- (d) OWCP will not accept copies of endar year in which the claim was first bills for reimbursement unless they accepted as compensable by OWCP, bear the original signature of the pro- whichever is later. vider, with evidence of payment. Pay- ment for medical and surgical treat- MEDICAL FEE SCHEDULE ment, appliances or supplies shall in general be no greater than the max- § 10.805 What services are covered by imum allowable charge for such service the OWCP fee schedule? determined by the Director, as set (a) Payment for medical and other forth in § 10.805. health services furnished by physi- (e) An employee will be only par- cians, hospitals and other providers for tially reimbursed for a medical expense work-related injuries shall not exceed if the amount he or she paid to a pro- a maximum allowable charge for such vider for the service exceeds the max- service as determined by the Director, imum allowable charge set by the Di- except as provided in this section. rector’s schedule. If this happens, (b) The schedule of maximum allow- OWCP shall advise the employee of the able charges does not apply to charges maximum allowable charge for the for services provided in nursing homes, service in question and of his or her re- but it does apply to charges for treat- sponsibility to ask the provider to re- ment furnished in a nursing home by a fund to the employee, or credit to the physician or other medical profes- employee’s account, the amount he or sional. she paid which exceeds the maximum (c) The schedule of maximum allow- allowable charge. The provider may re- able charges also does not apply to quest reconsideration of the fee deter- charges for appliances, supplies, serv- mination as set forth in § 10.812. ices or treatment furnished by medical (f) If the provider fails to make ap- facilities of the U.S. Public Health propriate refund to the employee, or to Service or the Departments of the credit the employee’s account, within Army, Navy, Air Force and Veterans 60 days after the employee requests a Affairs.
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§ 10.806 How are the maximum fees de- category of service, and in doing so fined? may adapt HCFA conversion factors as For professional medical services, appropriate using OWCP’s processing the Director shall maintain a schedule experience and internal data. of maximum allowable fees for proce- (c) For example, if the unit values for dures performed in a given locality. a particular surgical procedure are 2.48 The schedule shall consist of: An as- for physician’s work (W), 3.63 for prac- signment of a value to procedures iden- tice expense (PE), and 0.48 for mal- tified by Health Care Financing Ad- practice insurance (M), and the dollar ministration Common Procedure Cod- value assigned to one unit in that cat- ing System/Current Procedural Termi- egory of service (surgery) is $61.20, then nology (HCPCS/CPT) code which rep- the maximum allowable charge for one resents the relative skill, effort, risk performance of that procedure is the and time required to perform the pro- product of the three RVUs times the cedure, as compared to other proce- corresponding geographical indices for dures of the same general class; an the locality times the conversion fac- index based on a relative value scale tor. If the geographic indices for the lo- that considers skill, labor, overhead, cality are 0.988(W), 0.948 (PE), and 1.174 malpractice insurance and other re- (M), then the maximum payment cal- lated costs; and a monetary value as- culation is: signment (conversion factor) for one [(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] unit of value in each of the categories × $61.20 of service. [2.45 + 3.44 + .56] × $61.20 6.45 × $61.20 = $394.74 § 10.807 How are payments for par- ticular services calculated? § 10.808 Does the fee schedule apply to Payment for a procedure identified every kind of procedure? by a HCPCS/CPT code shall not exceed Where the time, effort and skill re- the amount derived by multiplying the quired to perform a particular proce- relative values for that procedure by dure vary widely from one occasion to the geographic indices for services in the next, the Director may choose not that area and by the dollar amount as- to assign a relative value to that proce- signed to one unit in that category of dure. In this case the allowable charge service. for the procedure will be set individ- (a) The ‘‘locality’’ which serves as a ually based on consideration of a de- basis for the determination of average tailed medical report and other evi- cost is defined by the Bureau of Census dence. At its discretion, OWCP may set Metropolitan Statistical Areas. The Di- fees without regard to schedule limits rector shall base the determination of for specially authorized consultant ex- the relative per capita cost of medical aminations, for examinations per- care in a locality using information formed under 5 U.S.C. 8123, and for about enrollment and medical cost per other specially authorized services. county, provided by the Health Care Financing Administration (HCFA). § 10.809 How are payments for medic- (b) The Director shall assign the rel- inal drugs determined? ative value units (RVUs) published by Payment for medicinal drugs pre- HCFA to all services for which HCFA scribed by physicians shall not exceed has made assignments, using the most the amount derived by multiplying the recent revision. Where there are no average wholesale price of the medica- RVUs assigned to a procedure, the Di- tion by the quantity or amount pro- rector may develop and assign any vided, plus a dispensing fee. RVUs that he or she considers appro- (a) All prescription medications iden- priate. The geographic adjustment fac- tified by National Drug Code (NDC) tor shall be that designated by Geo- will be assigned an average wholesale graphic Practice Cost Indices for Met- price representing the product’s na- ropolitan Statistical Areas as devised tionally recognized wholesale price as for HCFA and as updated or revised by determined by surveys of manufactur- HCFA from time to time. The Director ers and wholesalers. The Director will will devise conversion factors for each establish the dispensing fee.
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(b) The NDCs, the average wholesale § 10.811 When and how are fees re- prices, and the dispensing fee shall be duced? reviewed from time to time and up- (a) OWCP shall accept a provider’s dated as necessary. designation of the code to identify a billed procedure or service if the code § 10.810 How are payments for inpa- is consistent with medical reports and tient medical services determined? other evidence. Where no code is sup- (a) OWCP will pay for inpatient med- plied, OWCP may determine the code ical services according to pre-deter- based on the narrative description of mined, condition-specific rates based the procedure on the billing form and on the Prospective Payment System in associated medical reports. OWCP (PPS) devised by HCFA (42 CFR parts will pay no more than the maximum 412, 413, 424, 485, and 489). Using this allowable fee for that procedure. system, payment is derived by multi- (b) If the charge submitted for a serv- ice supplied to an injured employee ex- plying the diagnosis-related group ceeds the maximum amount deter- (DRG) weight assigned to the hospital mined to be reasonable according to discharge by the provider-specific fac- the schedule, OWCP shall pay the tors. amount allowed by the schedule for (1) All hospital discharges will be that service and shall notify the pro- classified according to the DRGs pre- vider in writing that payment was re- scribed by the HCFA in the form of the duced for that service in accordance DRG Grouper software program. On with the schedule. OWCP shall also no- this list, each DRG represents the aver- tify the provider of the method for re- age resources necessary to provide care questing reconsideration of the balance in a case in that DRG relative to the of the charge. national average of resources con- sumed per case. § 10.812 If OWCP reduces a fee, may a (2) The provider-specific factors will provider request reconsideration of the reduction? be provided by HCFA in the form of their PPS Pricer software program. (a) A physician or other provider The software takes into consideration whose charge for service is only par- tially paid because it exceeds a max- the type of facility, census division, ac- imum allowable amount set by the Di- tual geographic location (MSA) of the rector may, within 30 days, request re- hospital, case mix cost per discharge, consideration of the fee determination. number of hospital beds, intern/beds (1) The provider should make such a ratio, operating cost to charge ratio, request to the OWCP district office and other factors used by HCFA to de- with jurisdiction over the employee’s termine the specific rate for a hospital claim. The request must be accom- discharge under their PPS. The Direc- panied by documentary evidence that tor may devise price adjustment fac- the procedure performed was incor- tors as appropriate using OWCP’s proc- rectly identified by the original code, essing experience and internal data. that the presence of a severe or con- (3) OWCP will base payments to fa- comitant medical condition made cilities excluded from HCFA’s PPS on treatment especially difficult, or that consideration of detailed medical re- the provider possessed unusual quali- ports and other evidence. fications. In itself, board-certification (4) The Director shall review the pre- in a specialty is not sufficient evidence determined hospital rates at least once of unusual qualifications to justify an a year, and may adjust any or all com- exception. These are the only three cir- ponents when he or she deems it nec- cumstances which will justify reevalu- essary or appropriate. ation of the paid amount. (2) A list of OWCP district offices and (b) The Director shall review the their respective areas of jurisdiction is schedule of fees at least once a year, available upon request from the U.S. and may adjust the schedule or any of Department of Labor, Office of Work- its components when he or she deems it ers’ Compensation Programs, Wash- necessary or appropriate. ington, DC 20210, or from the Internet
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at www.dol.gov./dol/esa/owcp.htm. the exclusion procedures provided by Within 30 days of receiving the request § 10.815(h). for reconsideration, the OWCP district office shall respond in writing stating EXCLUSION OF PROVIDERS whether or not an additional amount will be allowed as reasonable, consid- § 10.815 What are the grounds for ex- cluding a provider from payment ering the evidence submitted. under the FECA? (b) If the OWCP district office issues A physician, hospital, or provider of a decision which continues to disallow medical services or supplies shall be a contested amount, the provider may excluded from payment under the apply to the Regional Director of the FECA if such physician, hospital or region with jurisdiction over the OWCP provider has: district office. The application must be (a) Been convicted under any crimi- filed within 30 days of the date of such nal statute of fraudulent activities in decision, and it may be accompanied by connection with any Federal or State additional evidence. Within 60 days of program for which payments are made receipt of such application, the Re- to providers for similar medical, sur- gional Director shall issue a decision in gical or hospital services, appliances or writing stating whether or not an addi- supplies; tional amount will be allowed as rea- (b) Been excluded or suspended, or sonable, considering the evidence sub- has resigned in lieu of exclusion or sus- mitted. This decision shall be final, and pension, from participation in any Fed- shall not be subject to further review. eral or State program referred to in paragraph (a) of this section; § 10.813 If OWCP reduces a fee, may a provider bill the claimant for the (c) Knowingly made, or caused to be balance? made, any false statement or misrepre- sentation of a material fact in connec- A provider whose fee for service is tion with a determination of the right partially paid by OWCP as a result of to reimbursement under the FECA, or the application of its fee schedule or in connection with a request for pay- other tests for reasonableness in ac- ment; cordance with this part shall not re- (d) Submitted, or caused to be sub- quest reimbursement from the em- mitted, three or more bills or requests ployee for additional amounts. for payment within a twelve-month pe- (a) Where a provider’s fee for a par- riod under this subpart containing ticular service or procedure is lower to charges which the Director finds to be the general public than as provided by substantially in excess of such pro- the schedule of maximum allowable vider’s customary charges, unless the charges, the provider shall bill at the Director finds there is good cause for lower rate. A fee for a particular serv- the bills or requests containing such ice or procedure which is higher than charges; the provider’s fee to the general public (e) Knowingly failed to timely reim- for that same service or procedure will burse employees for treatment, serv- be considered a charge ‘‘substantially ices or supplies furnished under this in excess of such provider’s customary subpart and paid for by OWCP; charges’’ for the purposes of § 10.815(d). (f) Failed, neglected or refused on (b) A provider whose fee for service is three or more occasions during a 12- partially paid by OWCP as the result of month period to submit full and accu- the application of the schedule of max- rate medical reports, or to respond to imum allowable charges and who col- requests by OWCP for additional re- lects or attempts to collect from the ports or information, as required by employee, either directly or through a the FECA and § 10.800; collection agent, any amount in excess (g) Knowingly furnished treatment, of the charge allowed by OWCP, and services or supplies which are substan- who does not cease such action or tially in excess of the employee’s make appropriate refund to the em- needs, or of a quality which fails to ployee within 60 days of the date of the meet professionally recognized stand- decision of OWCP, shall be subject to ards; or
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(h) Collected or attempted to collect with return receipt requested, which from the employee, either directly or shall contain the following: through a collection agent, an amount (a) A concise statement of the in excess of the charge allowed by grounds upon which exclusion shall be OWCP for the procedure performed, and based; has failed or refused to make appro- (b) A summary of the information, priate refund to the employee, or to with supporting documentation, upon cease such collection attempts, within which the Regional Director has relied 60 days of the date of the decision of in reaching an initial decision that ex- OWCP. clusion proceedings should begin; § 10.816 What will cause OWCP to (c) An invitation to the provider to: automatically exclude a physician (1) Resign voluntarily from participa- or other provider of medical serv- tion in the FECA program without ad- ices and supplies? mitting or denying the allegations pre- (a) OWCP shall automatically ex- sented in the letter; or clude a physician, hospital, or provider (2) Request that the decision on ex- of medical services or supplies who has clusion be based upon the existing been convicted of a crime described in record and any additional documentary § 10.815(a), or has been excluded or sus- information the provider may wish to pended, or has resigned in lieu of exclu- furnish; sion or suspension, from participation (d) A notice of the provider’s right, in in any program as described in the event of an adverse ruling by the § 10.815(b). Regional Director, to request a formal (b) The exclusion applies to partici- hearing before an administrative law pating in the program and to seeking judge; payment under the FECA for services (e) A notice that should the provider performed after the date of the entry of fail to answer (as described in § 10.819) the judgment of conviction or order of the letter of intent within 30 calendar exclusion, suspension or resignation, as days of receipt, the Regional Director the case may be, by the court or agen- may deem the allegations made therein cy concerned. Proof of the conviction, to be true and may order exclusion of exclusion, suspension or resignation the provider without conducting any may consist of a copy thereof authenti- further proceedings; and cated by the seal of the court or agency (f) The name and address of the concerned. OWCP representative who shall be re- § 10.817 When are OWCP’s exclusion sponsible for receiving the answer from procedures initiated? the provider. Upon receipt of information indi- § 10.819 What requirements must the cating that a physician, hospital or provider’s reply and OWCP’s deci- provider of medical services or supplies sion meet? (hereinafter the provider) has engaged in activities enumerated in paragraphs (a) The provider’s answer shall be in (c) through (h) of § 10.815, the Regional writing and shall include an answer to Director, after completion of inquiries OWCP’s invitation to resign volun- he or she deems appropriate, may ini- tarily. If the provider does not offer to tiate procedures to exclude the pro- resign, he or she shall request that a vider from participation in the FECA determination be made upon the exist- program. For the purposes of this sec- ing record and any additional informa- tion, ‘‘Regional Director’’ may include tion provided. any officer designated to act on his or (b) Should the provider fail to answer her behalf. the letter of intent within 30 calendar days of receipt, the Regional Director § 10.818 How is a provider notified of may deem the allegations made therein OWCP’s intent to exclude him or to be true and may order exclusion of her? the provider. The Regional Director shall initiate (c) By arrangement with the official the exclusion process by sending the representative, the provider may in- provider a letter, by certified mail and spect or request copies of information
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in the record at any time prior to the ments and for the certification of ques- Regional Director’s decision. tions to advisory bodies; and (d) The Regional Director shall issue (3) A scheduled hearing date not less his or her decision in writing, and shall than 30 days after the date the sched- send a copy of the decision to the pro- ule is issued, and not less than 15 days vider by certified mail, return receipt after the scheduled conclusion of pre- requested. The decision shall advise the liminary matters, provided that the provider of his or her right to request, specific time and place of the hearing within 30 days of the date of the ad- may be set on 10 days’ notice. verse decision, a formal hearing before (b) The purpose of the designation of an administrative law judge under the issues is to provide for an effective procedures set forth in § 10.820. The fil- hearing process. The provider is enti- ing of a request for a hearing within tled to be heard on any matter placed the time specified shall stay the effec- in issue by his or her response to the tiveness of the decision to exclude. Notice of Intent to Exclude, and may designate ‘‘all issues’’ for purposes of § 10.820 How can an excluded provider request a hearing? hearing. However, a specific designa- tion of issues is required if the provider A request for a hearing shall be sent wishes to interpose affirmative de- to the official representative named fenses, or request the issuance of sub- under § 10.818(f) and shall contain: poenas or the certification of questions (a) A concise notice of the issues on for an advisory opinion. which the provider desires to give evi- dence at the hearing; § 10.822 How are subpoenas or advi- (b) Any request for a more definite sory opinions obtained? statement by OWCP; (c) Any request for the presentation (a) The provider may apply to the ad- of oral argument or evidence; and ministrative law judge for the issuance (d) Any request for a certification of of subpoenas upon a showing of good questions concerning professional med- cause therefor. ical standards, medical ethics or med- (b) A certification of a request for an ical regulation for an advisory opinion advisory opinion concerning profes- from a competent recognized profes- sional medical standards, medical eth- sional organization or Federal, State ics or medical regulation to a com- or local regulatory body. petent recognized or professional orga- nization or Federal, State or local reg- § 10.821 How are hearings assigned ulatory agency may be made: and scheduled? (1) As to an issue properly designated (a) If the designated OWCP represent- by the provider, in the sound discretion ative receives a timely request for of the administrative law judge, pro- hearing, the OWCP representative shall vided that the request will not unduly refer the matter to the Chief Adminis- delay the proceedings; trative Law Judge of the Department (2) By OWCP on its own motion ei- of Labor, who shall assign it for an ex- ther before or after the institution of pedited hearing. The administrative proceedings, and the results thereof law judge assigned to the matter shall shall be made available to the provider consider the request for hearing, act on at the time that proceedings are insti- all requests therein, and issue a Notice tuted or, if after the proceedings are of Hearing and Hearing Schedule for instituted, within a reasonable time the conduct of the hearing. A copy of after receipt. The opinion, if rendered the hearing notice shall be served on by the organization or agency, is advi- the provider by certified mail, return sory only and not binding on the ad- receipt requested. The Notice of Hear- ministrative law judge. ing and Hearing Schedule shall include: (1) A ruling on each item raised in § 10.823 How will the administrative the request for hearing; law judge conduct the hearing and (2) A schedule for the prompt disposi- issue the recommended decision? tion of all preliminary matters, includ- (a) To the extent appropriate, pro- ing requests for more definite state- ceedings before the administrative law
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judge shall be governed by 29 CFR part (c) Petitions for discretionary review 18. shall be filed only upon one or more of (b) The administrative law judge the following grounds: shall receive such relevant evidence as (1) A finding or conclusion of mate- may be adduced at the hearing. Evi- rial fact is not supported by substan- dence shall be presented under oath, tial evidence; orally or in the form of written state- (2) A necessary legal conclusion is er- ments. The administrative law judge roneous; shall consider the Notice and Response, (3) The decision is contrary to law or including all pertinent documents ac- to the duly promulgated rules or deci- companying them, and may also con- sions of the Director; sider any evidence which refers to the (4) A substantial question of law, pol- provider or to any claim with respect icy, or discretion is involved; or to which the provider has provided (5) A prejudicial error of procedure medical services, hospital services, or was committed. medical services and supplies, and such (d) Each issue shall be separately other evidence as the administrative numbered and plainly and concisely law judge may determine to be nec- stated, and shall be supported by de- essary or useful in evaluating the mat- tailed citations to the record when as- ter. signments of error are based on the (c) All hearings shall be recorded and record, and by statutes, regulations or the original of the complete transcript principal authorities relied upon. Ex- shall become a permanent part of the cept for good cause shown, no assign- official record of the proceedings. ment of error by any party shall rely (d) Pursuant to 5 U.S.C. 8126, the ad- on any question of fact or law upon ministrative law judge may: which the administrative law judge had (1) Issue subpoenas for and compel not been afforded an opportunity to the attendance of witnesses within a pass. radius of 100 miles; (e) A statement in opposition to the (2) Administer oaths; petition for discretionary review may (3) Examine witnesses; and be filed, but such filing shall in no way (4) Require the production of books, delay action on the petition. papers, documents, and other evidence (f) If a petition is granted, review with respect to the proceedings. shall be limited to the questions raised by the petition. (e) At the conclusion of the hearing, the administrative law judge shall (g) A petition not granted within 20 issue a written decision and cause it to days after receipt of the petition is be served on all parties to the pro- deemed denied. ceeding, their representatives and the (h) The decision of the Director shall Director. be final with respect to the provider’s participation in the program, and shall § 10.824 How can a party request re- not be subject to further review by any view by the Director of the adminis- court or agency. trative law judge’s recommended decision? § 10.825 What are the effects of exclu- sion? (a) Any party adversely affected or aggrieved by the decision of the admin- (a) OWCP shall give notice of the ex- istrative law judge may file a petition clusion of a physician, hospital or pro- for discretionary review with the Di- vider of medical services or supplies to: rector within 30 days after issuance of (1) All OWCP district offices; such decision. The administrative law (2) All Federal employers; judge’s decision, however, shall be ef- (3) The HCFA; fective on the date issued and shall not (4) The State or local authority re- be stayed except upon order of the Di- sponsible for licensing or certifying the rector. excluded party; and (b) Review by the Director shall not (5) All employees who are known to be a matter of right but of the sound have had treatment, services or sup- discretion of the Director. plies from the excluded provider within
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the six-month period immediately pre- reinstatement is clearly consistent ceding the order of exclusion. with the goal of this subpart to protect (b) Notwithstanding any exclusion of the FECA program against fraud and a physician, hospital, or provider of abuse. To satisfy this requirement the medical services or supplies under this provider must provide reasonable as- subpart, OWCP shall not refuse an em- surances that the basis for the exclu- ployee reimbursement for any other- sion will not be repeated. wise reimbursable medical treatment, service or supply if: Part 25—Compensation for Dis- (1) Such treatment, service or supply ability and Death of Noncitizen was rendered in an emergency by an excluded physician; or Federal Employees Outside the (2) The employee could not reason- United States ably have been expected to have known of such exclusion. Subpart A—General Provisions (c) An employee who is notified that Sec. his or her attending physician has been 25.1 How are claims of Federal employees excluded shall have a new right to se- who are neither citizens nor residents ad- lect a qualified physician. judicated? 25.2 In general, what is the Director’s policy § 10.826 How can an excluded provider regarding such claims? be reinstated? 25.3 What is the authority to settle and pay (a) If a physician, hospital, or pro- such claims? vider of medical services or supplies 25.4 What type of evidence is required to es- has been automatically excluded pur- tablish a claim under this part? suant to § 10.816, the provider excluded 25.5 What special rules does OWCP apply to will automatically be reinstated upon claims of third and fourth country na- tionals? notice to OWCP that the conviction or 25.6 How does OWCP adjudicate claims of exclusion which formed the basis of the non-citizen residents of possessions? automatic exclusion has been reversed or withdrawn. However, an automatic Subpart B—The Special Schedule of reinstatement shall not preclude OWCP Compensation from instituting exclusion proceedings based upon the underlying facts of the 25.100 How is compensation for disability matter. paid? (b) A physician, hospital, or provider 25.101 How is compensation for death paid? of medical services or supplies excluded 25.102 What general provisions does OWCP from participation as a result of an apply to the Special Schedule? order issued pursuant to this subpart Subpart C—Extensions of the Special may apply for reinstatement one year Schedule of Compensation after the entry of the order of exclu- sion, unless the order expressly pro- 25.200 How is the Special Schedule applied vides for a shorter period. An applica- for employees in the Republic of the tion for reinstatement shall be ad- Philippines? dressed to the Director for Federal Em- 25.201 How is the Special Schedule applied ployees’ Compensation, and shall con- for employees in Australia? tain a concise statement of the basis 25.202 How is the Special Schedule applied for the application. The application for Japanese seamen? should be accompanied by supporting 25.203 How is the Special Schedule applied to non-resident aliens in the Territory of documents and affidavits. Guam? (c) A request for reinstatement may be accompanied by a request for oral AUTHORITY: 5 U.S.C. 301, 8137, 8145 and 8149; argument. Oral argument will be al- 1946 Reorganization Plan No. 2, sec. 3, 3 CFR lowed only in unusual circumstances 1943–1948 Comp., p. 1064; 60 Stat. 1095; Reorga- where it will materially aid the deci- nization Plan No. 19 of 1950, sec. 1, 3 CFR sion process. 1943–1953 Comp., p. 1010; 64 Stat. 1271; Sec- (d) The Director for Federal Employ- retary’s Order 5–96, 62 FR 107. ees’ Compensation shall order rein- SOURCE: 63 FR 65340, Nov. 25, 1998, unless statement only in instances where such otherwise noted.
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