37898 Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 

DEPARTMENT OF LABOR 

Office of Workers’ Compensation 

Programs 

20 CFR Parts 1, 10 and 25 

RIN 1240–AA03 

Performance of Functions; Claims for 

Compensation Under the Federal 

Employees’ Compensation Act; 

Compensation for Disability and Death 

of Noncitizen Federal Employees 

Outside the United States 

AGENCY: Office of Workers’ 

Compensation Programs, Department of 

Labor. 

ACTION: Final Rule. 

SUMMARY: On August 13, 2010, the 

Department of Labor (DOL) proposed 

revisions to the regulations governing 

the administration of the Federal 

Employees’ Compensation Act (FECA). 

The FECA provides benefits to all 

civilian Federal employees and certain 

other groups of employees and 

individuals who are injured or killed 

while performing their jobs. At that 

time, DOL also proposed revisions to 

the regulations establishing the 

authority of the Office of Workers’ 

Compensation Programs (OWCP) which 

administers the FECA. 

The proposed changes were 

summarized in that publication. The 

existing rules have been amended to 

acknowledge a change in the 

organization of the OWCP and 

amendments to the FECA which have 

occurred since the last time the 

regulations were amended in 1999. 

These changes also update the 

regulations by taking into account 

changes in technology and other 

changes to improve administrative 

efficiency. As many FECA claimants are 

not represented, the regulations are 

revised to insert FECA statutory 

references as a frame of reference for 

clarity and ease of use. The regulations 

include adding the skin as an organ 

pursuant to 5 U.S.C. 8107(c)(22). The 

regulations also create a new special 

schedule covering injuries to noncitizen non-resident Federal employees 

outside the United States. Finally, the 

regulations covering the processing of 

medical bills have been updated to 

provide for greater use of technology in 

that process to reduce costs and to 

clarify requirements for such 

submissions. 

DATES: Effective Date: This final rule is 

effective on August 29, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Fitzgerald, Director, Division of 

Federal Employees’ Compensation, 

Office of Workers’ Compensation 

Programs, U.S. Department of Labor, 

Room S3229, 200 Constitution Avenue, 

NW., Washington, DC 20210, 

Telephone: 202–693–0040 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access this telephone number via TTY 

by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: Proposed 

regulations were published in the 

Federal Register on August 13, 2010 (75 

FR 49596). They allowed a 60-day 

period for comment, during which the 

DOL received timely comments from 

251 parties: one comment was 

submitted by a Federal employing 

agency; two comments were received 

from labor organizations representing 

Federal employees; one comment was 

received from a medical professional 

association; 173 comments were 

received from private individuals; and 

74 comments were received from 

attorneys. Also, 44 untimely comments 

were received from private individuals 

and attorneys; the points made by these 

commenters echoed those made in 

comments that were timely submitted. 

Almost all of the comments addressed 

the reinsertion of the FECA’s explicit 

bar on receipt of contingency fees. 

Furthermore, a number of the comments 

addressed scheduling of hearings before 

the Branch of Hearings and Review and 

a proposed change in how a request for 

reconsideration is determined to be 

timely. A smaller number of comments 

addressed changes in language 

regarding suitable employment and loss 

of wage earning capacity 

determinations. Finally, individual 

comments were received addressing a 

small number of issues, including 

changes to procedures involving Peace 

Corps volunteers, questions regarding 

verbiage, and a number of issues not 

raised by the proposed changes to the 

FECA regulations. All of these 

comments are addressed below. 

Two minor changes have been made 

to the notice of proposed rulemaking 

that did not result from any comments. 

The first change clarifies language in 

§ 10.104 to promote ease of reading. The 

second change was to §§ 10.619, 10.818 

and 10.819, which added ‘‘or equivalent 

service from a commercial carrier’’ in 

situations where OWCP is to use 

certified mail, return receipt requested 

when mailing notices or decisions. This 

change will provide greater flexibility in 

such mailings while providing for proof 

of receipt. 

When publishing a final rule 

following a comment period, it is 

customary to publish only the changes 

that have been made to the rule; 

however, in order to be more userfriendly, OWCP is publishing the entire 

rule, including the parts that have not 

been changed. By doing so, only one 

document containing all of the 

regulations and commentary needs to be 

consulted rather than multiple 

documents. 

I. Comments on the Notice of Proposed 

Rulemaking 

The section numbers used in the 

headings of the following analysis are 

those that were used in the notice of 

proposed rulemaking. Unless otherwise 

stated, the section numbers in the text 

of the analysis refer to the numbering 

used for the final regulations. No 

comments were received with respect to 

parts 1 and 25. 

Section 10.16 

One attorney suggested that the 

addition of language to subsection (b) of 

this section which discussed actions 

under the False Claims Act indicated 

that OWCP was changing this section to 

allow other agencies to institute actions 

under the Program Fraud Civil 

Remedies Act. The addition of this 

language was only intended to notify 

employees that suits may be maintained 

under the False Claims Act. As such, the 

comment is well taken in that it 

indicates that placing this language in 

subsection (b) reduced the clarity of the 

regulation. Accordingly, the language 

has been moved to subsection (a). 

Section 10.104 

Two labor organizations 

recommended the abbreviation ‘‘i.e.’’ be 

changed to ‘‘e.g.’’ because surgery is 

only one of multiple reasons that could 

support payment of wage-loss 

compensation for a limited period of 

disability in the presence of a loss-ofwage-earning-capacity determination. 

While OWCP does not think that such 

modification is required, the language 

has been changed to ‘‘such as’’ in an 

attempt to address the concerns 

expressed by the commenters and to 

add clarity through the use of plain 

language. 

Section 10.310 

One medical provider noted that 

Round 1 of Medicare’s Durable Medical 

Equipment, Prosthetics, Orthotics and 

Supplies (DMEPOS) Competitive 

Bidding process covers only a limited 

number of metropolitan areas and 

closed on November 4, 2009. 

Registration for Round 2 has yet to open 

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with no date even tentatively scheduled. 

As a result, many providers currently 

supplying durable medical equipment 

services for OWCP would be precluded 

from participation. 

This provision was added to afford 

OWCP with a measure of reliability in 

durable medical equipment suppliers 

while avoiding the use of scarce 

program resources to police all such 

providers. The comment is well taken as 

there are two processes relating to 

DMEPOS under Medicare. Relevant to 

this regulation is Medicare’s DMEPOS 

Accreditation Process. This process was 

established as a result of the Medicare 

Modernization Act to implement quality 

standards for suppliers of, among other 

things, durable medical equipment. The 

accreditation process is currently open 

and providers are still being enrolled. 

This section has therefore been 

modified to require registration under 

Medicare’s DMEPOS Accreditation 

Process rather than Medicare’s 

Competitive Bidding Program. This 

should address the concerns of the 

commenter. 

Section 10.321 

One attorney suggested that the 

language should be changed to require 

OWCP to provide notice to the claimant 

of the right to object to the referee 

selection at the time the referee notice 

is sent and that OWCP bears the burden 

of showing that it complied with the 

strict rotational system. The only 

proposed change to the existing rule 

was to add the ‘‘impartial’’ 

nomenclature that the Employees’ 

Compensation Appeals Board (ECAB) 

uses in its appeal decisions for the third 

tie-breaking (referee) physician. This 

section explains under what 

circumstances OWCP will appoint a 

third physician to make an examination. 

There is no requirement in the statute, 

ECAB case law or OWCP procedure for 

such notices or rotational requirements 

or for placing such strict obligations on 

OWCP by regulation. In addition, OWCP 

needs to retain some flexibility as to 

how it selects its impartial specialists, 

as some esoteric specialties may require 

more flexibility in scheduling. 

Consequently, the language in this 

section has not been modified. 

Section 10.401 

Two labor organizations commented 

that the proposed language does not 

clearly establish that USPS employees 

who use leave during the first three days 

of temporary disability should have 

their leave reinstated if the injury causes 

permanent disability or if the pay loss 

continues for more than 14 calendar 

days. This explanation is specifically 

provided in § 10.200(c). For clarity, a 

reference to § 10.200(c) and to 5 U.S.C. 

8117(b) has been added. 

Section 10.421 

One agency commented that this 

section omitted a discussion of U.S. 

Department of Veterans Affairs benefits. 

The proposed language contains nothing 

novel and no specific reference to VA 

benefits appeared in either the 1988 or 

1999 final rules. Furthermore, the 

program’s procedures have long 

contained instructions on determining 

when VA payments constitute a 

prohibited dual benefit under the 

statute, and OWCP is not aware of any 

problems which have arisen with 

respect to these instructions. Therefore, 

the program does not believe that it is 

necessary to address it by regulation. 

Section 10.500 

Eight attorneys noted that the 

additional sentence added to paragraph 

(a) of this section ignores and appears to 

undercut a very necessary procedure 

that has been set up to protect the 

employee’s vested interest in 

continuation of wage-loss benefits 

absent being afforded due process rights 

prior to any reduction or elimination of 

benefits. 

Two labor organizations argued that 

the change to ‘‘appropriate work’’ in 

paragraph (b) of this section recasts the 

discussion into the context of loss of 

wage earning capacity determinations 

and that the term ‘‘appropriate’’ lacks a 

meaningful statutory or regulatory 

history and questioned the cross 

reference in § 10.515. 

OWCP first notes that § 10.500, as 

evidenced by the question proposed in 

the title, is meant to provide the very 

basic rules on receipt of benefits and 

rules regarding return to work and its 

effect on compensation. The changes 

made to this section were to clarify 

these situations and to provide 

information to claimants regarding their 

obligation to perform light duty when 

the evidence establishes that work is 

available within the employee’s 

restrictions. These comments, however, 

indicate an apparent misunderstanding 

of the basic intent of § 10.500. 

Accordingly, the section has been 

clarified by splitting up paragraphs (a) 

and (b) in the proposed rule to 

paragraphs (a)–(d) in this section. While 

these sections do not provide any new 

information or communicate a change in 

interpretation of current law, OWCP 

believes that the purpose and intent of 

the rule will be demonstrated more 

clearly. Furthermore, in any situation 

where benefits are reduced or denied 

under this section, OWCP will issue a 

decision that contains findings of fact 

and a statement of reasons. Where 

appropriate, such as in cases of ongoing 

continuous entitlement, OWCP will also 

provide the claimant notice of its 

proposed action as well as an 

opportunity to respond prior to issuing 

a decision based on this regulation. All 

such decisions will be accompanied by 

an explanation of the claimant’s right to 

further administrative review including 

appeal to ECAB. These actions will 

address the due process concerns 

expressed by these organizations. 

Finally, the cross-reference that was 

questioned by the labor organizations 

was removed from § 10.515 as that was 

no longer needed. 

Section 10.509 

The proposed new § 10.509 was 

modified by splitting this section into 

two sections, § 10.509 and § 10.510. 

Section 10.509 now covers only 

situations involving the effect of 

downsizing of a light duty position on 

compensation. This section elicited 

comment from eight attorneys who 

disputed the additional phrase requiring 

the employing agency to state, in 

writing, that no other employment is 

available as being simply conclusory in 

nature. However, this clarifying phrase 

does not impact the section’s basic 

premise that employees who have a 

wage-earning capacity determination in 

place do not sustain a compensable 

recurrence of disability when they lose 

their light duty positions pursuant to 

reductions-in-force and merely codifies 

existing procedures. As such, no change 

has been made to this section. 

Another commenter took issue with 

the use of ‘‘other forms of downsizing’’, 

arguing that this allows the agency to 

evade responsibilities under any 

collective bargaining agreement and 

established RIF law. As this is a 

personnel matter outside the scope of 

these FECA regulations, no change is 

necessary to the regulations as a result 

of this comment. 

Section 10.510 

This section elicited comments from 

sixty-nine individuals, all of which 

were form letters, as well as comments 

from nine attorneys and two labor 

organizations. All comments expressed 

concern that the change in language 

would undercut the job suitability 

determination process. The purpose of 

the section, as noted in the preamble to 

the proposed rule, was to clarify when 

a light duty job may form the basis of 

a loss of wage-earning capacity 

determination, and does not involve 

determinations regarding job suitability 

under 5 U.S.C. 8106(c). One of the 

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37900 Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 

fundamental bases for a loss of wageearning capacity determination is that 

the position must fairly and reasonably 

represent an employee’s ability to earn 

wages. As that basic factor was not 

explicitly expressed in this section, this 

language has been added. 

Section 10.511 

Two labor organizations 

recommended the abbreviation ‘‘i.e.’’ be 

changed to ‘‘e.g.’’ because surgery is 

only one of multiple reasons that could 

support payment of wage-loss 

compensation for a limited period of 

disability in the presence of a loss-ofwage-earning-capacity determination. 

While no modification is strictly 

required, using the term ‘‘such as’’ will 

address the concerns expressed by the 

commenters and add clarity through the 

use of plain language. 

Section 10.519 

Two labor organizations noted that, 

although the reference to OWCP nurses 

was removed from § 10.518, it was not 

removed from this section. The 

reference to registered nurses was 

deleted from § 10.518 as ECAB found 

that nurse services were not to be 

considered vocational rehabilitation for 

the purposes of imposing sanctions 

pursuant to 5 U.S.C. 8113 (b). While 

OWCP will not apply such sanctions to 

non-cooperation with OWCP registered 

nurses, the reference remains in 

§ 10.519(a) to allow for flexibility in 

coordinating the services of both 

registered nurses and vocational 

rehabilitation counselors in OWCP’s 

return to work efforts for injured 

workers. 

Section 10.521 

The proposed rule added this section 

to explain the ramifications of electing 

to receive retirement benefits instead of 

FECA benefits. While not averse to 

referencing existing procedure in the 

regulatory language, two labor 

organizations objected to the addition of 

the phrase ‘‘where OWCP is attempting 

to otherwise place that employee in a 

suitable job[.]’’ The commenters argued 

that such language was potentially so 

broad as to cover any effort, including 

those inconsistent with law, regulation 

or procedure, and such a regulation 

would be punitive toward injured 

workers electing retirement benefits in 

order to receive schedule award 

payments. OWCP does not believe a 

change in this section is warranted, as 

the requirements for determining a loss 

of wage earning capacity are well 

established. A loss of wage earning 

capacity determination does not 

constitute a sanction; this section will 

have no impact on the concurrent 

receipt of OPM retirement benefits and 

a schedule award that is plainly 

permissible under the statute. 

Section 10.607 

Ninety commenters objected to the 

change to § 10.607, which modified the 

deadline for seeking reconsideration 

with OWCP on a denial of benefits from 

the requirement that the request ‘‘be 

sent within one year’’ to being 

‘‘received’’ by OWCP within one year 

and requiring the request itself to be 

dated. Most of these comments were 

form letters. One commenter questioned 

whether the date would be the date 

received by OWCP or the date the letter 

is scanned into OWCP’s electronic claim 

file system. Two commenters noted that 

this would create separate rules on 

deadlines for filing a request for 

reconsideration and a request for 

hearing with OWCP’s Branch of 

Hearings and Review, in that the current 

rule in each instance bases the 

deadlines on the postmark on the 

envelope. The form letter comments 

suggested that this will increase the cost 

of filing reconsiderations by requiring 

claimants to send such requests by 

certified mail or facsimile in order to 

clearly know when the request has been 

received. 

OWCP notes that the prior regulation, 

which allowed for the date a request for 

reconsideration was sent to be 

documented by postmark, predated the 

current electronic file system (iFECs). 

Due to the large volume of mail that is 

received and scanned into this file 

system, it is not feasible or efficient to 

keep envelopes for all mail scanned 

prior to determining whether such mail 

is a request for reconsideration, making 

it impossible to determine the date such 

a request was sent to OWCP. This 

anomaly led to situations where dated 

requests for reconsideration were 

received well past the one year 

deadline, but were required to be treated 

as timely under the prior regulations. 

Such a problem is not inherent in 

requests for oral hearings, as hearing 

requests are mailed directly to the 

Branch of Hearings and Review. 

Therefore no change was necessary to 

that procedure. OWCP believes that this 

difference in procedure will be clearly 

explained in the appeal rights notice to 

avoid confusion. 

Furthermore, by 2012, OWCP will 

implement a free, Web-based system (E– 

COMP) that will allow claimants and 

representatives to directly upload 

documents to the electronic case file, 

minimizing both the cost and 

documentation questions noted by the 

commenters. Such electronic 

submissions should come at no cost to 

either the claimant or a representative 

and will provide instant 

acknowledgment as to when a 

document was received by OWCP. 

Finally, OWCP notes that the one year 

period for requesting reconsideration is 

extremely generous compared to other 

benefit appeals systems. As noted in the 

preamble to the notice of proposed 

rulemaking, rather than cutting back the 

time to file such a request (to either 180 

days, as with the ECAB, or 65 days, as 

with the Social Security 

Administration), OWCP simply chose to 

provide a solution that would allow 

OWCP to more easily document when 

the request was timely. The regulation 

provides more than ample time to both 

claimants and representatives to gather 

new evidence and submit a request for 

reconsideration. Accordingly, no change 

has been made to this section as a result 

of these comments. 

Sections 10.616, 10.617 & 10.622 

The notice of proposed rule making 

drew six comments, all from attorneys, 

in regards to §§ 10.616, 10.617 and 

10.622. Although these sections address 

different issues, the comments all 

involved requests for additional 

flexibility in the scheduling of an oral 

hearing. One commenter specifically 

requested that the regulation be changed 

to require a hearing representative to 

consult with a claimant or 

representative prior to scheduling any 

hearing to arrange a mutually 

convenient time and place to hold the 

hearing. The remaining commenters 

simply asked that there be some 

coordination with the representative to 

better accommodate hearing calendars. 

Due to the volume of hearing requests 

and limited resources available to 

conduct those hearings, OWCP is not 

able to grant the large degree of 

consultation and latitude in the 

scheduling or postponements of 

hearings requested by the commenters. 

However, the increased use of 

teleconferences and other technology in 

hearings affords OWCP some flexibility 

in scheduling that did not exist 

previously. Accordingly, OWCP has 

redrafted § 10.622 to provide greater 

flexibility while still maintaining 

OWCP’s discretion in how and when 

these hearings are conducted. 

Specifically, OWCP added language 

allowing rescheduling within a monthly 

docket where a claimant or the 

representative has a prior unavoidable 

scheduling conflict and extended the 

previously existing language in 

paragraph (d) to include representatives 

as well. 

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Section 10.626 

One labor organization stated in 

reference to § 10.626 that OWCP should 

consider adding language that states that 

OWCP will follow decisions of the 

Employees’ Compensations Appeals 

Board based on the unions reading of a 

FECA circular from 1990. OWCP notes 

however that this section deals solely 

with the jurisdiction over a claim while 

that claim is appealed to ECAB. OWCP 

notes that part 0 of the Federal (FECA) 

Procedure Manual clearly states that the 

Employees’ Compensation Appeals 

Board is an independent body that has 

jurisdiction to determine appeals from 

denials of FECA benefits. Federal 

(FECA) Procedure Manual, part 0–0100– 

3. 

Section 10.700 

An attorney commented that this 

section should include a mandatory 

requirement that copies of all 

documents in the case file, including emails, be automatically mailed to the 

claimant as well as the claimant’s 

representative. OWCP notes that such a 

requirement is unnecessary, as the 

Privacy Act allows a claimant to request 

one free copy of all such documents and 

to sign a waiver allowing any 

representative to view those documents 

or receive a copy upon request. 

Furthermore, while representatives are 

frequently copied on correspondence to 

claimants, certain correspondence (such 

as the CA–1032) remains the direct 

responsibility of the claimant to 

complete and submit. For this reason, 

and based on program experience, 

OWCP will not impose the regulatory 

requirement suggested by this 

commenter and the regulation remains 

unchanged. 

Sections 10.702 & 10.703 

Two hundred forty-three of the 

comments, most of which were form 

letters, disagreed with the specific 

prohibition on contingency fees noted 

in these sections. One commenter 

strongly supported the ban on 

contingency fees as she believed that 

current fee application requirements 

compelled accountability on the part of 

the representative. Language specifically 

banning contingency fees was omitted 

during the last regulatory update, as the 

requirements for the fee application 

were believed to make the additional 

language redundant. Notwithstanding 

the regulation’s explicit reference to 

hourly rates, the removal of this 

language left some with the impression 

that contingency fees were permissible 

and that the ban on contingency 

arrangements had been removed. ECAB 

precedent has stated that FECA does not 

allow for the payment of contingency 

fees, and the current regulations clearly 

contemplate the use of an hourly rate in 

determining representatives’ fees. 

Furthermore, ECAB, in its recently 

published final rule, noted that no 

contract for a stipulated fee or on a 

contingent basis will be approved by 

ECAB. Federal Register cite. As 5 U.S.C. 

8127 applies to representative fees 

before both ECAB and OWCP, OWCP 

will continue to conform its position on 

contingency fees with that of ECAB’s. 

Consequently, no change has been made 

to this section as a result of these 

comments. 

Section 10.730 

This section was amended to restore 

the statutory language applicable to 

coverage of claims involving Peace 

Corps volunteers. The use of ‘‘deemed 

proximately caused’’ mirrors the 

language in 5 U.S.C. 8142(c)(3). One 

attorney noted that the language of this 

section reverses the statutory burden of 

proof for Peace Corps Volunteers by 

adding additional requirements of proof 

in paragraph (b) and (c) to those that are 

required in 5 U.S.C. 8142(c)(3). The 

language to which the attorney took 

exception was not the amended 

language, but the general statutory 

requirement that a volunteer must 

sustain either an occupational disease or 

illness or a traumatic injury in order for 

FECA coverage to apply. As such, no 

change has been made to this section as 

a result of these comments. 

Section 10.812 

One attorney commented that OWCP 

seldom sends a notice explaining appeal 

rights to the medical provider of 

reduced or denied fees and does not 

send notice to the claimant of a 

reduction or denial of a medical fee. 

This occasionally results in a claimant 

being sued years after the bill was 

denied or reduced. 

The existing rule was unchanged in 

the notice of proposed rulemaking. 

Notification of payment, denial of 

payment or fee reduction of a service is 

supplied in writing to the provider 

requesting payment. A claimant may 

review the bills submitted in his/her 

case and information regarding the 

amount billed, paid and the reason for 

any denial is readily available on-line. 

Although § 10.813 of this part clearly 

states that claimants may not be billed 

for the difference when a fee is reduced, 

OWCP agrees that claimants may not 

realize that they are not responsible for 

medical charges exceeding the 

maximum allowed in the OWCP fee 

schedule. While no change has been 

made to this section, language regarding 

this concern has been added to the Web 

site and included in the acceptance 

letter sent to a claimant. 

II. Administrative Requirements for the 

Proposed Rulemaking 

Executive Orders 12866 and 13563 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects; distributive impacts; 

and equity). Executive Order 13563 is 

supplemental to and reaffirms the 

principles, structures, and definitions 

governing regulatory review as 

established in Executive Order 12866. 

This rule constitutes a ‘‘significant’’ 

rule within the meaning of Executive 

Order 12866 in that any executive 

agency could be required to participate 

in the development of claims for 

benefits under this regulatory action. 

OWCP believes, however, that as this 

rule merely updates existing 

regulations, this rule will not have a 

significant economic impact on the 

economy, or any person or organization 

subject to the proposed changes. OWCP 

has projected that the addition of the 

skin as an organ under the schedule 

award provision as well as the revision 

of the part 25 compensation for noncitizen non-resident employees will 

result in additional expenditures of 

$10,893,434 over ten years. 

This projection is based on a very 

limited amount of data and a single 

significant event could result in 

substantially higher than projected 

expenditures. This has been reviewed 

by the Office of Management and 

Budget for consistency with the 

President’s priorities and the principles 

set forth in Executive Order 12866. 

Regulatory Flexibility Act of 1980 

This rule has been reviewed in 

accordance with the Regulatory 

Flexibility Act of 1980, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 601–612. OWCP has concluded 

that the rule does not involve regulatory 

and informational requirements 

regarding businesses, organizations, and 

governmental jurisdictions subject to 

regulation. 

Paperwork Reduction Act (PRA) 

This rule contains information 

collection requirements subject to the 

Paperwork Reduction Act (PRA) of 

1995, 44 U.S.C. 3501, et seq. The 

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requirements set out in this rule were 

both submitted to and approved by the 

OMB under the OMB Control Numbers 

1240–0001, 1240–0007, 1240–0008, 

1240–0009, 1240–0012, 1240–0013, 

1240–0015, 1240–0016, 1240–0017, 

1240–0018, 1240–0019, 1240–0022, 

1240–0044, 1240–0045, 1240–0046, 

1240–0047, 1240–0049, 1240–0050 and 

1240–0051. 

The National Environmental Policy Act 

of 1969 

OWCP certifies that this rule has been 

assessed in accordance with the 

requirements of the National 

Environmental Policy Act of 1969, 42 

U.S.C. 4321 et seq. (NEPA). OWCP 

concludes that NEPA requirements do 

not apply to this rulemaking because 

this rule includes no provisions 

impacting the maintenance, 

preservation, or enhancement of a 

healthful environment. 

Federal Regulations and Policies on 

Families 

OWCP has reviewed this rule in 

accordance with the requirements of 

section 654 of the Treasury and General 

Government Appropriations Act of 

1999, 5 U.S.C. 601 note. This rule was 

not found to have a potential negative 

effect on family well-being as it is 

defined thereunder. 

Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

OWCP certifies that this rule has been 

assessed regarding environmental health 

risks and safety risks that may 

disproportionately affect children. This 

rule was not found to have a potential 

negative effect on the health or safety of 

children. 

Unfunded Mandates Reform Act of 1995 

and Executive Order 13132 

OWCP has reviewed this rule in 

accordance with the requirements of 

Executive Order 13132, 64 FR 43225 

(Aug. 10, 1999), and the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1501 et seq., and has found no potential 

or substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. As there is no 

Federal mandate contained herein that 

could result in increased expenditures 

by State, local, or Tribal governments or 

by the private sector, OWCP has not 

prepared a budgetary impact statement. 

Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

OWCP has reviewed this rule in 

accordance with Executive Order 13175, 

65 FR 67249 (Nov. 9, 2000), and has 

determined that it does not have ‘‘Tribal 

implications.’’ The rule does not ‘‘have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian Tribes.’’ 

Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

OWCP has reviewed this rule in 

accordance with Executive Order 12630, 

53 FR 8859 (Mar. 15, 1988), and has 

determined that it does not contain any 

‘‘policies that have takings 

implications’’ in regard to the 

‘‘licensing, permitting, or other 

condition requirements or limitations 

on private property use, or that require 

dedications or exactions from owners of 

private property.’’ 

Executive Order 13211: Energy Supply, 

Distribution, or Use 

OWCP has reviewed this rule and has 

determined that the provisions of 

Executive Order 13211, 66 FR 28355 

(May 18, 2001), are not applicable as 

there are no direct or implied effects on 

energy supply, distribution, or use. 

The Privacy Act of 1974, 5 U.S.C. 552a, 

as Amended 

Claims filed under these regulations 

are subject to the current Privacy Act 

System of Records, DOL/GOVT–1, 

Office of Workers’ Compensation 

Programs, Federal Employees’ 

Compensation Act File, 67 FR 16826 

(April 8, 2002). 

Clarity of This Regulation 

Executive Order 12866, 58 FR 51735 

(September 30, 1993), and the 

President’s memorandum of June 1, 

1998, require each agency to write all 

rules in plain language. OWCP invited 

comments on how to make the proposed 

rule easier to understand, and has 

incorporated plain language into the 

rule. 

List of Subjects in 20 CFR Parts 1, 10, 

and 25 

Administrative practice and 

procedure, Claims, Government 

Employees, Labor, Workers’ 

Compensation. 

For reasons set forth in the preamble, 

the Office of Workers’ Compensation 

Programs, Department of Labor, amends 

20 CFR chapter I as follows: 

■ 1. Part 1 is revised to read as follows: 

PART 1—PERFORMANCE OF 

FUNCTIONS 

Sec. 

1.1 Under what authority does the Office of 

Workers’ Compensation Programs 

operate? 

1.2 What functions are assigned to OWCP? 

1.3 What rules are contained in this 

chapter? 

1.4 Where are other rules concerning OWCP 

functions found? 

1.5 When was the former Bureau of 

Employees’ Compensation abolished? 

1.6 How were many of OWCP’s current 

functions administered in the past? 

Authority: 5 U.S.C. 301, 8145 and 8149 

(Reorganization Plan No. 6 of 1950, 15 FR 

3174, 3 CFR, 1949–1953 Comp., p. 1004, 64 

Stat. 1263); 42 U.S.C. 7384d and 7385s–10; 

E.O. 13179, 65 FR 77487, 3 CFR, 2000 Comp., 

p. 321; Secretary of Labor’s Order No. 13–71, 

36 FR 8155; Employment Standards Order 

No. 2–74, 39 FR 34722; Secretary of Labor’s 

Order No. 10–2009, 74 FR 218. 

§ 1.1 Under what authority does the Office 

of Workers’ Compensation Programs 

operate? 

(a) The Assistant Secretary of Labor 

for Employment Standards, by authority 

vested in him by the Secretary of Labor 

in Secretary’s Order No. 13–71 (36 FR 

8755), established in the Employment 

Standards Administration (ESA) an 

Office of Workers’ Compensation 

Programs (OWCP) by Employment 

Standards Order No. 2–74 (39 FR 

34722). The Assistant Secretary 

subsequently designated as the head 

thereof a Director who, under the 

general supervision of the Assistant 

Secretary, administered the programs 

assigned to OWCP by the Assistant 

Secretary. 

(b) Effective November 8, 2009, ESA 

was dissolved into its four component 

parts, including OWCP. Secretary of 

Labor’s Order 10–2009 (74 FR 58834) 

cancelled or modified all prior orders 

and directives referencing ESA, 

devolved certain authorities and 

responsibilities of ESA to OWCP, and 

delegated authority to the Director, 

OWCP, to administer the programs now 

assigned directly to OWCP. 

§ 1.2 What functions are assigned to 

OWCP? 

The Secretary of Labor has delegated 

authority and assigned responsibility to 

the Director of OWCP for the 

Department of Labor’s programs under 

the following statutes: 

(a) The Federal Employees’ 

Compensation Act, as amended and 

extended (5 U.S.C. 8101 et seq.), except 

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5 U.S.C. 8149 as it pertains to the 

Employees’ Compensation Appeals 

Board. 

(b) The War Hazards Compensation 

Act, as amended (42 U.S.C. 1701 et 

seq.). 

(c) The War Claims Act of 1948, as 

amended (50 U.S.C. App. 2003 et seq.). 

(d) The Energy Employees 

Occupational Illness Compensation 

Program Act of 2000, as amended (42 

U.S.C. 7384 et seq.), except 42 U.S.C. 

7385s–15 as it pertains to the Office of 

the Ombudsman, and activities, 

pursuant to Executive Order 13179 

(‘‘Providing Compensation to America’s 

Nuclear Weapons Workers’’) of 

December 7, 2000, assigned to the 

Secretary of Health and Human 

Services, the Secretary of Energy and 

the Attorney General. 

(e) The Longshore and Harbor 

Workers’ Compensation Act, as 

amended and extended (33 U.S.C. 901 et 

seq.), except: 33 U.S.C. 919(d) with 

respect to administrative law judges in 

the Office of Administrative Law Judges; 

33 U.S.C. 921(b) as it pertains to the 

Benefits Review Board; and activities, 

pursuant to 33 U.S.C. 941, assigned to 

the Assistant Secretary of Labor for 

Occupational Safety and Health. 

(f) The Black Lung Benefits Act, as 

amended (30 U.S.C. 901 et seq.)., 

including 26 U.S.C. 9501, except: 33 

U.S.C. 919(d) as incorporated by 30 

U.S.C. 932(a), with respect to 

administrative law judges in the Office 

of Administrative Law Judges; and 33 

U.S.C. 921(b) as incorporated by 30 

U.S.C. 932(a), as it applies to the 

Benefits Review Board. 

§ 1.3 What rules are contained in this 

chapter? 

The rules in this chapter are those 

governing the OWCP functions under 

the Federal Employees’ Compensation 

Act, the War Hazards Compensation 

Act, the War Claims Act and the Energy 

Employees Occupational Illness 

Compensation Program Act of 2000. 

§ 1.4 Where are other rules concerning 

OWCP functions found? 

(a) The rules of OWCP governing its 

functions under the Longshore and 

Harbor Workers’ Compensation Act and 

its extensions are set forth in subchapter 

A of chapter VI of this title. 

(b) The rules of OWCP governing its 

functions under the Black Lung Benefits 

Act program are set forth in subchapter 

B of chapter VI of this title. 

(c) The rules and regulations of the 

Employees’ Compensation Appeals 

Board are set forth in chapter IV of this 

title. 

(d) The rules and regulations of the 

Benefits Review Board are set forth in 

Chapter VII of this title. 

§ 1.5 When was the former Bureau of 

Employees’ Compensation abolished? 

By Secretary of Labor’s Order issued 

September 23, 1974 (39 FR 34723), 

issued concurrently with Employment 

Standards Order 2–74 (39 FR 34722), 

the Secretary revoked the prior 

Secretary’s Order No. 18–67 (32 FR 

12979), which had delegated authority 

and assigned responsibility for the 

various workers’ compensation 

programs enumerated in § 1.2, except 

the Black Lung Benefits Program and 

the Energy Employees Occupational 

Illness Compensation Program not then 

in existence, to the Director of the 

former Bureau of Employees’ 

Compensation. 

§ 1.6 How were many of OWCP’s current 

functions administered in the past? 

(a) Administration of the Federal 

Employees’ Compensation Act and the 

Longshore and Harbor Workers’ 

Compensation Act was initially vested 

in an independent establishment known 

as the U.S. Employees’ Compensation 

Commission. By Reorganization Plan 

No. 2 of 1946 (3 CFR, 1943–1949 Comp., 

p. 1064; 60 Stat. 1095, effective July 16, 

1946), the Commission was abolished 

and its functions were transferred to the 

Federal Security Agency to be 

performed by a newly created Bureau of 

Employees’ Compensation within such 

Agency. By Reorganization Plan No. 19 

of 1950 (15 FR 3178, 3 CFR, 1949–1954 

Comp., page 1010, 64 Stat. 1271), said 

Bureau was transferred to the 

Department of Labor (DOL), and the 

authority formerly vested in the 

Administrator, Federal Security Agency, 

was vested in the Secretary of Labor. By 

Reorganization Plan No. 6 of 1950 (15 

FR 3174, 3 CFR, 1949–1953 Comp., page 

1004, 64 Stat. 1263), the Secretary of 

Labor was authorized to make from time 

to time such provisions as he shall deem 

appropriate, authorizing the 

performance of any of his functions by 

any other officer, agency, or employee of 

the DOL. 

(b) In 1972, two separate 

organizational units were established 

within the Bureau: an Office of 

Workmen’s Compensation Programs (37 

FR 20533) and an Office of Federal 

Employees’ Compensation (37 FR 

22979). In 1974, these two units were 

abolished and one organizational unit, 

the Office of Workers’ Compensation 

Programs, was established in lieu of the 

Bureau of Employees’ Compensation (39 

FR 34722). 

■ 2. Part 10 is revised to read as follows: 

PART 10—CLAIMS FOR 

COMPENSATION UNDER THE 

FEDERAL EMPLOYEES’ 

COMPENSATOIN ACT, AS AMENDED 

Subpart A—General Provisions 

Sec. 

Introduction 

10.0 What are the provisions of the FECA, 

in general? 

10.1 What rules govern the administration 

of the FECA and this chapter? 

10.2 What do these regulations contain? 

10.3 Have the collection of information 

requirements of this part been approved 

by the Office of Management and Budget 

(OMB)? 

Definitions and Forms 

10.5 What definitions apply to the 

regulations in this subchapter? 

10.6 What special statutory definitions 

apply to dependents and survivors? 

10.7 What forms are needed to process 

claims under the FECA? 

Information in Program Records 

10.10 Are all documents relating to claims 

filed under the FECA considered 

confidential? 

10.11 Who maintains custody and control 

of FECA records? 

10.12 How may a FECA claimant or 

beneficiary obtain copies of protected 

records? 

10.13 What process is used by a person who 

wants to correct FECA-related 

documents? 

Rights and Penalties 

10.15 May compensation rights be waived? 

10.16 What criminal and civil penalties 

may be imposed in connection with a 

claim under the FECA? 

10.17 Is a beneficiary who defrauds the 

Government in connection with a claim 

for benefits still entitled to those 

benefits? 

10.18 Can a beneficiary who is incarcerated 

based on a felony conviction still receive 

benefits? 

Subpart B—Filing Notices and Claims; 

Submitting Evidence 

Notices and Claims for Injury, Disease, and 

Death—Employee or Survivor’s Actions 

10.100 How and when is a notice of 

traumatic injury filed? 

10.101 How and when is a notice of 

occupational disease filed? 

10.102 How and when is a claim for wage 

loss compensation filed? 

10.103 How and when is a claim for 

permanent impairment filed? 

10.104 How and when is a claim for 

recurrence filed? 

10.105 How and when is a notice of death 

and claim for benefits filed? 

Notices and Claims for Injury, Disease, and 

Death—Employer’s Actions 

10.110 What should the employer do when 

an employee files a notice of traumatic 

injury or occupational disease? 

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10.111 What should the employer do when 

an employee files an initial claim for 

compensation due to disability or 

permanent impairment? 

10.112 What should the employer do when 

an employee files a claim for continuing 

compensation due to disability? 

10.113 What should the employer do when 

an employee dies from a work-related 

injury or disease? 

Evidence and Burden of Proof 

10.115 What evidence is needed to 

establish a claim? 

10.116 What additional evidence is needed 

in cases based on occupational disease? 

10.117 What happens if, in any claim, the 

employer contests any of the facts as 

stated by the claimant? 

10.118 Does the employer participate in the 

claims process in any other way? 

10.119 What action will OWCP take with 

respect to information submitted by the 

employer? 

10.120 May a claimant submit additional 

evidence? 

10.121 What happens if OWCP needs more 

evidence from the claimant? 

Decisions on Entitlement to Benefits 

10.125 How does OWCP determine 

entitlement to benefits? 

10.126 What does the decision contain? 

10.127 To whom is the decision sent? 

Subpart C—Continuation of Pay 

10.200 What is continuation of pay? 

Eligibility for COP 

10.205 What conditions must be met to 

receive COP? 

10.206 May an employee who uses leave 

after an injury later decide to use COP 

instead? 

10.207 May an employee who returns to 

work, then stops work again due to the 

effects of the injury, receive COP? 

Responsibilities 

10.210 What are the employee’s 

responsibilities in COP cases? 

10.211 What are the employer’s 

responsibilities in COP cases? 

Calculation of COP 

10.215 How does OWCP compute the 

number of days of COP used? 

10.216 How is the pay rate for COP 

calculated? 

10.217 Is COP charged if the employee 

continues to work, but in a different job 

that pays less? 

Controversion and Termination of COP 

10.220 When is an employer not required to 

pay COP? 

10.221 How is a claim for COP 

controverted? 

10.222 When may an employer terminate 

COP which has already begun? 

10.223 Are there other circumstances under 

which OWCP will not authorize payment 

of COP? 

10.224 What happens if OWCP finds that 

the employee is not entitled to COP after 

it has been paid? 

Subpart D—Medical and Related Benefits 

Emergency Medical Care 

10.300 What are the basic rules for 

authorizing emergency medical care? 

10.301 May the physician designated on 

Form CA–16 refer the employee to 

another medical specialist or medical 

facility? 

10.302 Should the employer authorize 

medical care if he or she doubts that the 

injury occurred, or that it is workrelated? 

10.303 Should the employer use a Form 

CA–16 to authorize medical testing when 

an employee is exposed to a workplace 

hazard just once? 

10.304 Are there any exceptions to these 

procedures for obtaining medical care? 

Medical Treatment and Related Issues 

10.310 What are the basic rules for 

obtaining medical care? 

10.311 What are the special rules for the 

services of chiropractors? 

10.312 What are the special rules for the 

services of clinical psychologists? 

10.313 Will OWCP pay for preventive 

treatment? 

10.314 Will OWCP pay for the services of 

an attendant? 

10.315 Will OWCP pay for transportation to 

obtain medical treatment? 

10.316 After selecting a treating physician, 

may an employee choose to be treated by 

another physician instead? 

Directed Medical Examinations 

10.320 Can OWCP require an employee to 

be examined by another physician? 

10.321 What happens if the opinion of the 

physician selected by OWCP differs from 

the opinion of the physician selected by 

the employee? 

10.322 Who pays for second opinion and 

referee examinations? 

10.323 What are the penalties for failing to 

report for or obstructing a second 

opinion or referee examination? 

10.324 May an employer require an 

employee to undergo a physical 

examination in connection with a workrelated injury? 

Medical Reports 

10.330 What are the requirements for 

medical reports? 

10.331 How and when should the medical 

report be submitted? 

10.332 What additional medical 

information will OWCP require to 

support continuing payment of benefits? 

10.333 What additional medical 

information will OWCP require to 

support a claim for a schedule award? 

Medical Bills 

10.335 How are medical bills submitted? 

10.336 What are the time frames for 

submitting bills? 

10.337 If an employee is only partially 

reimbursed for a medical expense, must 

the provider refund the balance of the 

amount paid to the employee? 

Subpart E—Compensation and Related 

Benefits 

Compensation for Disability and Impairment 

10.400 What is total disability? 

10.401 When and how is compensation for 

total disability paid? 

10.402 What is partial disability? 

10.403 When and how is compensation for 

partial disability paid? 

10.404 When and how is compensation for 

a schedule impairment paid? 

10.405 Who is considered a dependent in a 

claim based on disability or impairment? 

10.406 What are the maximum and 

minimum rates of compensation in 

disability cases? 

Compensation for Death 

10.410 Who is entitled to compensation in 

case of death, and what are the rates of 

compensation payable in death cases? 

10.411 What are the maximum and 

minimum rates of compensation in death 

cases? 

10.412 Will OWCP pay the costs of burial 

and transportation of the remains? 

10.413 May a schedule award be paid after 

an employee’s death? 

10.414 What reports of dependents are 

needed in death cases? 

10.415 What must a beneficiary do if the 

number of beneficiaries decreases? 

10.416 How does a change in the number of 

beneficiaries affect the amount of 

compensation paid to the other 

beneficiaries? 

10.417 What reports are needed when 

compensation payments continue for 

children over age 18? 

Adjustments to Compensation 

10.420 How are cost-of-living adjustments 

applied? 

10.421 May a beneficiary receive other 

kinds of payments from the Federal 

Government concurrently with 

compensation? 

10.422 May compensation payments be 

issued in a lump sum? 

10.423 May compensation payments be 

assigned to, or attached by, creditors? 

10.424 May someone other than the 

beneficiary be designated to receive 

compensation payments? 

10.425 May compensation be claimed for 

periods of restorable leave? 

Overpayments 

10.430 How does OWCP notify an 

individual of a payment made? 

10.431 What does OWCP do when an 

overpayment is identified? 

10.432 How can an individual present 

evidence to OWCP in response to a 

preliminary notice of an overpayment? 

10.433 Under what circumstances can 

OWCP waive recovery of an 

overpayment? 

10.434 If OWCP finds that the recipient of 

an overpayment was not at fault, what 

criteria are used to decide whether to 

waive recovery of it? 

10.435 Is an individual responsible for an 

overpayment that resulted from an error 

made by OWCP or another Government 

agency? 

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10.436 Under what circumstances would 

recovery of an overpayment defeat the 

purpose of the FECA? 

10.437 Under what circumstances would 

recovery of an overpayment be against 

equity and good conscience? 

10.438 Can OWCP require the individual 

who received the overpayment to submit 

additional financial information? 

10.439 What is addressed at a prerecoupment hearing? 

10.440 How does OWCP communicate its 

final decision concerning recovery of an 

overpayment, and what appeal right 

accompanies it? 

10.441 How are overpayments collected? 

Subpart F—Continuing Benefits 

Rules and Evidence 

10.500 What are the basic rules governing 

continuing receipt of compensation 

benefits and return to work? 

10.501 What medical evidence is necessary 

to support continuing receipt of 

compensation benefits? 

10.502 How does OWCP evaluate evidence 

in support of continuing receipt of 

compensation benefits? 

10.503 Under what circumstances may 

OWCP reduce or terminate 

compensation benefits? 

Return to Work—Employer’s 

Responsibilities 

10.505 What actions must the employer 

take? 

10.506 May the employer monitor the 

employee’s medical care? 

10.507 How should the employer make an 

offer of suitable work? 

10.508 May relocation expenses be paid for 

an employee who would need to move 

to accept an offer of reemployment? 

10.509 If an employee’s light duty job is 

eliminated due to downsizing, what is 

the effect on compensation? 

10.510 When may a light duty job form the 

basis of a loss of wage-earning capacity 

determination? 

10.511 How may a loss of wage-earning 

capacity determination be modified? 

Return to Work—Employee’s 

Responsibilities 

10.515 What actions must the employee 

take with respect to returning to work? 

10.516 How will an employee know if 

OWCP considers a job to be suitable? 

10.517 What are the penalties for refusing 

to accept a suitable job offer? 

10.518 Does OWCP provide services to help 

employees return to work? 

10.519 What action will OWCP take if an 

employee refuses to undergo vocational 

rehabilitation? 

10.520 How does OWCP determine 

compensation after an employee 

completes a vocational rehabilitation 

program? 

10.521 If an employee elects to receive 

retirement benefits instead of FECA 

benefits, what effect may such an 

election have on that employee’s 

entitlement to FECA compensation? 

Reports of Earnings From Employment and 

Self-Employment 

10.525 What information must the 

employee report? 

10.526 Must the employee report volunteer 

activities? 

10.527 Does OWCP verify reports of 

earnings? 

10.528 What action will OWCP take if the 

employee fails to file a report of activity 

indicating an ability to work? 

10.529 What action will OWCP take if the 

employee files an incomplete report? 

Reports of Dependents 

10.535 How are dependents defined, and 

what information must the employee 

report? 

10.536 What is the penalty for failing to 

submit a report of dependents? 

10.537 What reports are needed when 

compensation payments continue for 

children over age 18? 

Reduction and Termination of 

Compensation 

10.540 When and how is compensation 

reduced or terminated? 

10.541 What action will OWCP take after 

issuing written notice of its intention to 

reduce or terminate compensation? 

Subpart G—Appeals Process 

10.600 How can final decisions of OWCP be 

reviewed? 

Reconsiderations and Reviews by the 

Director 

10.605 What is reconsideration? 

10.606 How does a claimant request 

reconsideration? 

10.607 What is the time limit for requesting 

reconsideration? 

10.608 How does OWCP decide whether to 

grant or deny the request for 

reconsideration? 

10.609 How does OWCP decide whether 

new evidence requires modification of 

the prior decision? 

10.610 What is a review by the Director? 

Hearings 

10.615 What is a hearing? 

10.616 How does a claimant obtain a 

hearing? 

10.617 How is an oral hearing conducted? 

10.618 How is a review of the written 

record conducted? 

10.619 May subpoenas be issued for 

witnesses and documents? 

10.620 Who pays the costs associated with 

subpoenas? 

10.621 What is the employer’s role when an 

oral hearing has been requested? 

10.622 May a claimant or representative 

withdraw a request for or postpone a 

hearing? 

Review by the Employees’ Compensation 

Appeals Board (ECAB) 

10.625 What kinds of decisions may be 

appealed? 

10.626 Who has jurisdiction of cases on 

appeal to the ECAB? 

Subpart H—Special Provisions 

Representation 

10.700 May a claimant designate a 

representative? 

10.701 Who may serve as a representative? 

10.702 How are fees for services paid? 

10.703 How are fee applications approved? 

10.704 What penalties apply to 

representatives who collect a fee without 

approval? 

Third Party Liability 

10.705 When must an employee or other 

FECA beneficiary take action against a 

third party? 

10.706 How will a beneficiary know if 

OWCP or SOL has determined that 

action against a third party is required? 

10.707 What must a FECA beneficiary who 

is required to take action against a third 

party do to satisfy the requirement that 

the claim be ‘‘prosecuted’’? 

10.708 Can a FECA beneficiary who refuses 

to comply with a request to assign a 

claim to the United States or to prosecute 

the claim in his or her own name be 

penalized? 

10.709 What happens if a beneficiary 

directed by OWCP or SOL to take action 

against a third party does not believe that 

a claim can be successfully prosecuted at 

a reasonable cost? 

10.710 Under what circumstances must a 

recovery of money or other property in 

connection with an injury or death for 

which benefits are payable under the 

FECA be reported to OWCP or SOL? 

10.711 How is the amount of the recovery 

of the FECA beneficiary determined? 

10.712 How much of any settlement or 

judgment must be paid to the United 

States? 

10.713 How is a structured settlement (that 

is, a settlement providing for receipt of 

funds over a specified period of time) 

treated for purposes of reporting the 

gross recovery? 

10.714 What amounts are included in the 

refundable disbursements? 

10.715 Is a beneficiary required to pay 

interest on the amount of the refund due 

to the United States? 

10.716 If the required refund is not paid 

within 30 days of the request for 

repayment, can it be collected from 

payments due under the FECA? 

10.717 Is a settlement or judgment received 

as a result of allegations of medical 

malpractice in treating an injury covered 

by the FECA a gross recovery that must 

be reported to OWCP or SOL? 

10.718 Are payments to a beneficiary as a 

result of an insurance policy which the 

beneficiary has purchased a gross 

recovery that must be reported to OWCP 

or SOL? 

10.719 If a settlement or judgment is 

received for more than one wound or 

medical condition, can the refundable 

disbursements paid on a single FECA 

claim be attributed to different 

conditions for purposes of calculating 

the refund or credit owed to the United 

States? 

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Federal Grand and Petit Jurors 

10.725 When is a Federal grand or petit 

juror covered under the FECA? 

10.726 When does a juror’s entitlement to 

disability compensation begin? 

10.727 What is the pay rate of jurors for 

compensation purposes? 

Peace Corps Volunteers 

10.730 What are the conditions of coverage 

for Peace Corps volunteers and volunteer 

leaders injured while serving outside the 

United States? 

10.731 What is the pay rate of Peace Corps 

volunteers and volunteer leaders for 

compensation purposes? 

Non-Federal Law Enforcement Officers 

10.735 When is a non-Federal law 

enforcement officer (LEO) covered under 

the FECA? 

10.736 What are the time limits for filing a 

LEO claim? 

10.737 How is a LEO claim filed, and who 

can file a LEO claim? 

10.738 Under what circumstances are 

benefits payable in LEO claims? 

10.739 What kind of objective evidence of 

a potential Federal crime must exist for 

coverage to be extended? 

10.740 In what situations will OWCP 

automatically presume that a law 

enforcement officer is covered by the 

FECA? 

10.741 How are benefits calculated in LEO 

claims? 

Subpart I—Information for Medical 

Providers 

Medical Records and Bills 

10.800 How do providers enroll with 

OWCP for authorizations and billing? 

10.801 How are medical bills to be 

submitted? 

10.802 How should an employee prepare 

and submit requests for reimbursement 

for medical expenses, transportation 

costs, loss of wages, and incidental 

expenses? 

10.803 What are the time limitations on 

OWCP’s payment of bills? 

Medical Fee Schedule 

10.805 What services are covered by the 

OWCP fee schedule? 

10.806 How are the maximum fees defined? 

10.807 How are payments for particular 

services calculated? 

10.808 Does the fee schedule apply to every 

kind of procedure? 

10.809 How are payments for medicinal 

drugs determined? 

10.810 How are payments for inpatient 

medical services determined? 

10.811 When and how are fees reduced? 

10.812 If OWCP reduces a fee, may a 

provider request reconsideration of the 

reduction? 

10.813 If OWCP reduces a fee, may a 

provider bill the claimant for the 

balance? 

Exclusion of Providers 

10.815 What are the grounds for excluding 

a provider from payment under the 

FECA? 

10.816 What will cause OWCP to 

automatically exclude a physician or 

other provider of medical services and 

supplies? 

10.817 How are OWCP’s exclusion 

procedures initiated? 

10.818 How is a provider notified of 

OWCP’s intent to exclude him or her? 

10.819 What requirements must the 

provider’s answer and OWCP’s decision 

meet? 

10.820 How can an excluded provider 

request a hearing? 

10.821 How are hearings assigned and 

scheduled? 

10.822 How are subpoenas or advisory 

opinions obtained? 

10.823 How will the administrative law 

judge conduct the hearing and issue the 

recommended decision? 

10.824 How does the recommended 

decision become final? 

10.825 What are the effects of exclusion? 

10.826 How can an excluded provider be 

reinstated? 

Subpart J—Death Gratuity 

10.900 What is the death gratuity under this 

subpart? 

10.901 Which employees are covered under 

this subpart? 

10.902 Does every employee’s death due to 

injuries incurred in connection with his 

or her service with an Armed Force in 

a contingency operation qualify for the 

death gratuity? 

10.903 Is the death gratuity payment 

applicable retroactively? 

10.904 Does a death as a result of 

occupational disease qualify for payment 

of the death gratuity? 

10.905 If an employee incurs a covered 

injury in connection with his or her 

service with an Armed Force in a 

contingency operation but does not die 

of the injury until years later, does the 

death qualify for payment of the death 

gratuity? 

10.906 What special statutory definitions 

apply to survivors under this subpart? 

10.907 What order of precedence will 

OWCP use to determine which survivors 

are entitled to receive the death gratuity 

payment under this subpart? 

10.908 Can an employee designate alternate 

beneficiaries to receive a portion of the 

death gratuity payment? 

10.909 How does an employee designate a 

variation in the order or percentage of 

gratuity payable to survivors and how 

does the employee designate alternate 

beneficiaries? 

10.910 What if a person entitled to a 

portion of the death gratuity payment 

dies after the death of the covered 

employee but before receiving his or her 

portion of the death gratuity? 

10.911 How is the death gratuity payment 

process initiated? 

10.912 What is required to establish a claim 

for the death gratuity payment? 

10.913 In what situations will OWCP 

consider that an employee incurred 

injury in connection with his or her 

service with an Armed Force in a 

contingency operation? 

10.914 What are the responsibilities of the 

employing agency in the death gratuity 

payment process? 

10.915 What are the responsibilities of 

OWCP in the death gratuity payment 

process? 

10.916 How is the amount of the death 

gratuity calculated? 

Authority: 5 U.S.C. 301, 8102a, 8103, 8145 

and 8149; 31 U.S.C. 3716 and 3717; 

Reorganization Plan No. 6 of 1950, 15 FR 

3174, 64 Stat. 1263; Secretary of Labor’s 

Order No. 10–2009, 74 FR 218. 

Subpart A—General Provisions 

Introduction 

§ 10.0 What are the provisions of the 

FECA, in general? 

The Federal Employees’ 

Compensation Act (FECA) as amended 

(5 U.S.C. 8101 et seq.) provides for the 

payment of workers’ compensation 

benefits to civilian officers and 

employees of all branches of the 

Government of the United States. The 

regulations in this part describe the 

rules for filing, processing, and paying 

claims for benefits under the FECA. 

Proceedings under the FECA are nonadversarial in nature. 

(a) The FECA has been amended and 

extended a number of times to provide 

workers’ compensation benefits to 

volunteers in the Civil Air Patrol (5 

U.S.C. 8141), members of the Reserve 

Officers’ Training Corps (5 U.S.C. 8140), 

Peace Corps Volunteers (5 U.S.C. 8142), 

Job Corps enrollees and Volunteers in 

Service to America (5 U.S.C. 8143), 

members of the National Teachers Corps 

(5 U.S.C. 8143a), certain student 

employees (5 U.S.C. 5351 and 8144), 

certain law enforcement officers not 

employed by the United States (5 U.S.C. 

8191–8193), and various other classes of 

persons who provide or have provided 

services to the Government of the 

United States. 

(b) The FECA provides for payment of 

several types of benefits, including 

compensation for wage loss, schedule 

awards, medical and related benefits, 

and vocational rehabilitation services 

for conditions resulting from injuries 

sustained in performance of duty while 

in service to the United States. 

(c) The FECA also provides for 

payment of monetary compensation to 

specified survivors of an employee 

whose death resulted from a workrelated injury and for payment of certain 

burial expenses subject to the provisions 

of 5 U.S.C. 8134. 

(d) All types of benefits and 

conditions of eligibility listed in this 

section are subject to the provisions of 

the FECA and of this part. This section 

shall not be construed to modify or 

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enlarge upon the provisions of the 

FECA. 

§ 10.1 What rules govern the 

administration of the FECA and this 

chapter? 

In accordance with 5 U.S.C. 8145 and 

Secretary’s Order 5–96, the 

responsibility for administering the 

FECA, except for 5 U.S.C. 8149 as it 

pertains to the Employees’ 

Compensation Appeals Board, has been 

delegated to the Director of the Office of 

Workers’ Compensation Programs 

(OWCP). Except as otherwise provided 

by law, the Director, OWCP and his or 

her designees have the exclusive 

authority to administer, interpret and 

enforce the provisions of the Act. 

§ 10.2 What do these regulations contain? 

This part 10 sets forth the regulations 

governing administration of all claims 

filed under the FECA, except to the 

extent specified in certain particular 

provisions. Its provisions are intended 

to assist persons seeking compensation 

benefits under the FECA, as well as 

personnel in the various Federal 

agencies and the Department of Labor 

who process claims filed under the 

FECA or who perform administrative 

functions with respect to the FECA. 

This part 10 applies to part 25 of this 

chapter except as modified by part 25. 

The various subparts of this part contain 

the following: 

(a) Subpart A. The general statutory 

and administrative framework for 

processing claims under the FECA. It 

contains a statement of purpose and 

scope, together with definitions of 

terms, descriptions of basic forms, 

information about the disclosure of 

OWCP records, and a description of 

rights and penalties under the FECA, 

including convictions for fraud. 

(b) Subpart B. The rules for filing 

notices of injury and claims for benefits 

under the FECA. It also addresses 

evidence and burden of proof, as well as 

the process of making decisions 

concerning eligibility for benefits. 

(c) Subpart C. The rules governing 

claims for and payment of continuation 

of pay. 

(d) Subpart D. The rules governing 

emergency and routine medical care, 

second opinion and referee medical 

examinations directed by OWCP, and 

medical reports and records in general. 

It also addresses the kinds of treatment 

which may be authorized and how 

medical bills are paid. 

(e) Subpart E. The rules relating to the 

payment of monetary compensation 

benefits for disability, impairment and 

death. It includes the provisions for 

identifying and processing 

overpayments of compensation. 

(f) Subpart F. The rules governing the 

payment of continuing compensation 

benefits. It includes provisions 

concerning the employee’s and the 

employer’s responsibilities in returning 

the employee to work. It also contains 

provisions governing reports of earnings 

and dependents, recurrences, and 

reduction and termination of 

compensation benefits. 

(g) Subpart G. The rules governing the 

appeals of decisions under the FECA. It 

includes provisions relating to hearings, 

reconsiderations, and appeals before the 

Employees’ Compensation Appeals 

Board. 

(h) Subpart H. The rules concerning 

legal representation and for adjustment 

and recovery from a third party. It also 

contains provisions relevant to three 

groups of employees whose status 

requires special application of the 

provisions of the FECA: Federal grand 

and petit jurors, Peace Corps volunteers, 

and non- Federal law enforcement 

officers. 

(i) Subpart I. Information for medical 

providers. It includes rules for medical 

reports, medical bills, and the OWCP 

medical fee schedule, as well as the 

provisions for exclusion of medical 

providers. 

(j) Subpart J. Death Gratuity. The rules 

relating to the payment of the death 

gratuity benefit under 5 U.S.C. 8102a. 

§ 10.3 Have the collection of information 

requirements of this part been approved by 

the Office of Management and Budget 

(OMB)? 

The collection of information 

requirements in this part have been 

approved by OMB and assigned OMB 

control numbers 1240–0001, 1240–0007, 

1240–0008, 1240–0009, 1240–0012, 

1240–0013, 1240–0015, 1240–0016, 

1240–0017, 1240–0018, 1240–0019, 

1240–0022, 1240–0044, 1240–0045, 

1240–0046, 1240–0047, 1240–0049, 

1240–0050 and 1240–0051. 

Definitions and Forms 

§ 10.5 What definitions apply to the 

regulations in this subchapter? 

Certain words and phrases found in 

this part are defined in this section or 

in the FECA. Some other words and 

phrases that are used only in limited 

situations are defined in the later 

subparts of the regulations in this 

subchapter. 

(a) Benefits or Compensation in the 

regulations in this subchapter means 

Compensation as defined by the FECA 

at 5 U.S.C. 8101(12), which is the 

money OWCP pays to or on behalf of a 

beneficiary from the Employees’ 

Compensation Fund. The terms Benefits 

and Compensation include payments for 

lost wages, loss of wage-earning 

capacity, and permanent physical 

impairment. The terms Benefits and 

Compensation also include the money 

paid to beneficiaries for an employee’s 

death, including both death benefits and 

any death gratuity benefit. These two 

terms also include any other amounts 

paid out of the Employees’ 

Compensation Fund for such things as 

medical treatment, medical 

examinations conducted at the request 

of OWCP as part of the claims 

adjudication process, vocational 

rehabilitation services under 5 U.S.C. 

8111, services of an attendant and 

funeral expenses under 5 U.S.C. 8134, 

but do not include continuation of pay 

as provided by 5 U.S.C. 8118. 

(b) Beneficiary means an individual 

who is entitled to a benefit under the 

FECA and this part. 

(c) Claim means a written assertion of 

an individual’s entitlement to benefits 

under the FECA, submitted in a manner 

authorized by this part. 

(d) Claimant means an individual 

whose claim has been filed. 

(e) Director means the Director of 

OWCP or a person designated to carry 

out his or her functions. 

(f) Disability means the incapacity, 

because of an employment injury, to 

earn the wages the employee was 

receiving at the time of injury. It may be 

partial or total. 

(g) Earnings from employment or selfemployment means: 

(1) Gross earnings or wages before any 

deductions and includes the value of 

subsistence, quarters, reimbursed 

expenses and any other goods or 

services received in kind as 

remuneration; or 

(2) A reasonable estimate of the cost 

to have someone else perform the duties 

of an individual who accepts no 

remuneration. Neither lack of profits, 

nor the characterization of the duties as 

a hobby, removes an unremunerated 

individual’s responsibility to report the 

estimated cost to have someone else 

perform his or her duties. 

(h) Employee means, but is not 

limited to, an individual who fits within 

one of the following listed groups: 

(1) A civil officer or employee in any 

branch of the Government of the United 

States, including an officer or employee 

of an instrumentality wholly owned by 

the United States pursuant to 5 U.S.C. 

8101(1)(A); 

(2) An individual rendering personal 

service to the United States similar to 

the service of a civil officer or employee 

of the United States, without pay or for 

nominal pay, when a statute authorizes 

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the acceptance or use of the service, or 

authorizes payment of travel or other 

expenses of the individual pursuant to 

5 U.S.C. 8101(1)(B); 

(3) An individual, other than an 

independent contractor or an individual 

employed by an independent contractor, 

employed on the Menominee Indian 

Reservation in Wisconsin in operations 

conducted under a statute relating to 

Tribal timber and logging operations on 

that reservation pursuant to 5 U.S.C. 

8101(1)(C); 

(4) An individual appointed to a 

position on the office staff of a former 

President under section 1(b) of the Act 

of August 25, 1958 (72 Stat. 838) 

pursuant to 5 U.S.C. 8101(1)(E); or 

(5) An individual selected and serving 

as a Federal petit or grand juror 

pursuant to 5 U.S.C. 8101(1)(F). 

(i) Employer or Agency means any 

civil agency or instrumentality of the 

United States Government, or any other 

organization, group or institution 

employing an individual defined as an 

‘‘employee’’ by this section. These terms 

also refer to officers and employees of 

an employer having responsibility for 

the supervision, direction or control of 

employees of that employer as an 

‘‘immediate superior,’’ and to other 

employees designated by the employer 

to carry out the functions vested in the 

employer under the FECA and this part, 

including officers or employees 

delegated responsibility by an employer 

for authorizing medical treatment for 

injured employees. 

(j) Entitlement means entitlement to 

benefits as determined by OWCP under 

the FECA and the procedures described 

in this part. 

(k) FECA means the Federal 

Employees’ Compensation Act, as 

amended. 

(l) Hospital services means services 

and supplies provided by hospitals 

within the scope of their practice as 

defined by State law. 

(m) Impairment means any anatomic 

or functional abnormality or loss. A 

permanent impairment is any such 

abnormality or loss after maximum 

medical improvement has been 

achieved. 

(n) Knowingly means with knowledge, 

consciously, willfully or intentionally. 

(o) Medical services means services 

and supplies provided by or under the 

supervision of a physician. 

Reimbursable chiropractic services are 

limited to physical examinations (and 

related laboratory tests), x-rays 

performed to diagnose a subluxation of 

the spine and treatment consisting of 

manual manipulation of the spine to 

correct a subluxation. 

(p) Medical support services means 

services, drugs, supplies and appliances 

provided by a person other than a 

physician or hospital. 

(q) Occupational disease or illness 

means a condition produced by the 

work environment over a period longer 

than a single workday or shift. 

(r) OWCP means the Office of 

Workers’ Compensation Programs. 

(s) Pay rate for compensation 

purposes means the employee’s pay, as 

determined under 5 U.S.C. 8114, at the 

time of injury, the time disability begins 

or the time compensable disability 

recurs if the recurrence begins more 

than six months after the injured 

employee resumes regular full-time 

employment with the United States, 

whichever is greater, except as 

otherwise determined under 5 U.S.C. 

8113 with respect to any period. 

(t) Physician means an individual 

defined as such in 5 U.S.C. 8101(2), 

except during the period for which his 

or her license to practice medicine has 

been suspended or revoked by a State 

licensing or regulatory authority. 

(u) Qualified hospital means any 

hospital licensed as such under State 

law which has not been excluded under 

the provisions of subpart I of this part. 

Except as otherwise provided by 

regulation, a qualified hospital shall be 

deemed to be designated or approved by 

OWCP. 

(v) Qualified physician means any 

physician who has not been excluded 

under the provisions of subpart I of this 

part. Except as otherwise provided by 

regulation, a qualified physician shall 

be deemed to be designated or approved 

by OWCP. 

(w) Qualified provider of medical 

support services or supplies means any 

person, other than a physician or a 

hospital, who provides services, drugs, 

supplies and appliances for which 

OWCP makes payment, who possesses 

any applicable licenses required under 

State law, and who has not been 

excluded under the provisions of 

subpart I of this part. 

(x) Recurrence of disability means an 

inability to work after an employee has 

returned to work, caused by a 

spontaneous change in a medical 

condition which had resulted from a 

previous injury or illness without an 

intervening injury or new exposure to 

the work environment that caused the 

illness. This term also means an 

inability to work that takes place when 

a light-duty assignment made 

specifically to accommodate an 

employee’s physical limitations due to 

his or her work-related injury or illness 

is withdrawn or when the physical 

requirements of such an assignment are 

altered so that they exceed his or her 

established physical limitations. A 

recurrence of disability does not apply 

when a light-duty assignment is 

withdrawn for reasons of misconduct, 

non-performance of job duties or other 

downsizing or where a loss of wageearning capacity determination as 

provided by 5 U.S.C. 8115 is in place. 

(y) Recurrence of medical condition 

means a documented need for further 

medical treatment after release from 

treatment for the accepted condition or 

injury when there is no accompanying 

work stoppage. Continuous treatment 

for the original condition or injury is not 

considered a ‘‘need for further medical 

treatment after release from treatment,’’ 

nor is an examination without 

treatment. 

(z) Representative means an 

individual or law firm properly 

authorized by a claimant in writing to 

act for the claimant in connection with 

a claim or proceeding under the FECA 

or this part. 

(aa) Student means an individual 

defined at 5 U.S.C. 8101(17). Two terms 

used in that particular definition are 

further defined as follows: 

(1) Additional type of educational or 

training institution means a technical, 

trade, vocational, business or 

professional school accredited or 

licensed by the United States 

Government or a State Government or 

any political subdivision thereof 

providing courses of not less than three 

months duration, that prepares the 

individual for a livelihood in a trade, 

industry, vocation or profession. 

(2) Year beyond the high school level 

means: 

(i) The 12-month period beginning the 

month after the individual graduates 

from high school, provided he or she 

had indicated an intention to continue 

schooling within four months of high 

school graduation, and each successive 

12-month period in which there is 

school attendance or the payment of 

compensation based on such 

attendance; or 

(ii) If the individual has indicated that 

he or she will not continue schooling 

within four months of high school 

graduation, the 12-month period 

beginning with the month that the 

individual enters school to continue his 

or her education, and each successive 

12-month period in which there is 

school attendance or the payment of 

compensation based on such 

attendance. 

(bb) Subluxation means an 

incomplete dislocation, off-centering, 

misalignment, fixation or abnormal 

spacing of the vertebrae which must be 

demonstrable on any x-ray film to an 

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individual trained in the reading of xrays. 

(cc) Surviving spouse means the 

husband or wife living with or 

dependent for support upon a deceased 

employee at the time of his or her death, 

or living apart for reasonable cause or 

because of the deceased employee’s 

desertion, unless otherwise defined 

under the FECA for the specific benefit 

such as the FECA death gratuity at 5 

U.S.C. 8102a. 

(dd) Temporary aggravation of a preexisting condition means that factors of 

employment have directly caused that 

condition to be more severe for a limited 

period of time and have left no greater 

impairment than existed prior to the 

employment injury. 

(ee) Traumatic injury means a 

condition of the body caused by a 

specific event or incident, or series of 

events or incidents, within a single 

workday or shift. Such condition must 

be caused by external force, including 

stress or strain, which is identifiable as 

to time and place of occurrence and 

member or function of the body 

affected. 

§ 10.6 What special statutory definitions 

apply to dependents and survivors? 

(a) 5 U.S.C. 8133 provides that certain 

benefits are payable to certain 

enumerated survivors of employees who 

have died from an injury sustained in 

the performance of duty. 

(b) 5 U.S.C. 8148 also provides that 

certain other benefits may be payable to 

certain family members of employees 

who have been incarcerated due to a 

felony conviction. 

(c) 5 U.S.C. 8110(b) further provides 

that any employee who is found to be 

eligible for a basic benefit shall be 

entitled to have such basic benefit 

augmented at a specified rate for certain 

persons who live in the beneficiary’s 

household or who are dependent upon 

the beneficiary for support. 

(d) 5 U.S.C. 8101, 8110, 8133, and 

8148, which define the nature of such 

survivorship or dependency necessary 

to qualify a beneficiary for a survivor’s 

benefit or an augmented benefit, apply 

to the provisions of this part but not to 

the death gratuity provided under 

subpart J. 

(e) 5 U.S.C. 8102a provides the 

definitions for survivorship or 

dependency necessary to qualify as a 

beneficiary for a death gratuity benefit 

as well as allowing half the death 

gratuity benefit to be paid to alternate 

beneficiary. 

§ 10.7 What forms are needed to process 

claims under the FECA? 

(a) Notice of injury, claims and certain 

specified reports shall be made on forms 

prescribed by OWCP. Employers shall 

not modify these forms or use substitute 

forms. Employers are expected to 

maintain an adequate supply of the 

basic forms needed for the proper 

recording and reporting of injuries. 

Form No. Title 

(1) CA–1 ........ Federal Employee’s Notice 

of Traumatic Injury and 

Claim for Continuation of 

Pay/Compensation. 

(2) CA–2 ........ Notice of Occupational Disease and Claim for Compensation. 

(3) CA–2a ...... Notice of Employee’s Recurrence of Disability and 

Claim for Pay/Compensation. 

(4) CA–3 ........ Report of Work Status. 

(5) CA–5 ........ Claim for Compensation by 

Widow, Widower and/or 

Children. 

(6) CA–5b ...... Claim for Compensation by 

Parents, Brothers, Sisters, 

Grandparents, or Grandchildren. 

(7) CA–6 ........ Official Superior’s Report of 

Employee’s Death. 

(8) CA–7 ........ Claim for Compensation Due 

to Traumatic Injury or Occupational Disease. 

(9) CA–7a ...... Time Analysis Form. 

(10) CA–7b .... Leave Buy Back (LBB) 

Worksheet/Certification 

and Election. 

(11) CA–16 .... Authorization of Examination 

and/or Treatment. 

(12) CA–17 .... Duty Status Report. 

(13) CA–20 .... Attending Physician’s Report. 

(14) CA–20a .. Attending Physician’s Supplemental Report. 

(15) CA–40 .... Designation of a Recipient of 

the Federal Employees’ 

Compensation Act Death 

Gratuity Payment under 

Section 1105 of Public 

Law 110–181 (Section 

8102a). 

(16) CA–41 .... Claim for Survivor Benefits 

Under the Federal Employees’ Compensation 

Act Section 8102a Death 

Gratuity. 

(17) CA–42 .... Official Notice of Employees’ 

Death for Purposes of 

FECA Section 8102a 

Death Gratuity. 

(18) CA–1108 Statement of Recovery Letter with Long Form. 

(19) CA–1122 Statement of Recovery Letter with Short Form. 

(b) Copies of the forms listed in this 

paragraph are available for public 

inspection at the Office of Workers’ 

Compensation Programs, U.S. 

Department of Labor, Washington, DC 

20210. They may also be obtained from 

district offices, employers (i.e., safety 

and health offices, supervisors), and the 

Internet, at http://www.dol.gov. 

Information in Program Records 

§ 10.10 Are all documents relating to 

claims filed under the FECA considered 

confidential? 

All records relating to claims for 

benefits, including copies of such 

records maintained by an employer, are 

considered confidential and may not be 

released, inspected, copied or otherwise 

disclosed except as provided in the 

Freedom of Information Act and the 

Privacy Act of 1974 or under the routine 

uses provided by DOL/GOVT–1 if such 

release is consistent with the purpose 

for which the record was created. 

§ 10.11 Who maintains custody and 

control of FECA records? 

All records relating to claims for 

benefits filed under the FECA, including 

any copies of such records maintained 

by an employing agency, are covered by 

the government-wide Privacy Act 

system of records entitled DOL/GOVT– 

1 (Office of Workers’ Compensation 

Programs, Federal Employees’ 

Compensation Act File). This system of 

records is maintained by and under the 

control of OWCP, and, as such, all 

records covered by DOL/GOVT–1 are 

official records of OWCP. The 

protection, release, inspection and 

copying of records covered by DOL/ 

GOVT–1 shall be accomplished in 

accordance with the rules, guidelines 

and provisions of this part, as well as 

those contained in 29 CFR parts 70 and 

71, and with the notice of the system of 

records and routine uses published in 

the Federal Register. All questions 

relating to access/disclosure, and/or 

amendment of FECA records 

maintained by OWCP or the employing 

agency, are to be resolved in accordance 

with this section. 

§ 10.12 How may a FECA claimant or 

beneficiary obtain copies of protected 

records? 

(a) A claimant seeking copies of his or 

her official FECA file should address a 

request to the District Director of the 

OWCP office having custody of the file. 

A claimant seeking copies of FECArelated documents in the custody of the 

employer should follow the procedures 

established by that agency. 

(b) (1) While an employing agency 

may establish procedures that an 

injured employee or beneficiary should 

follow in requesting access to 

documents it maintains, any decision 

issued in response to such a request 

must comply with the rules and 

regulations of the Department of Labor 

which govern all other aspects of 

safeguarding these records. 

(2) No employing agency has the 

authority to issue determinations with 

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respect to requests for the correction or 

amendment of records contained in or 

covered by DOL/GOVT–1. That 

authority is within the exclusive control 

of OWCP. Thus, any request for 

correction or amendment received by an 

employing agency must be referred to 

OWCP for review and decision. 

(3) Any administrative appeal taken 

from a denial issued by the employing 

agency or OWCP shall be filed with the 

Solicitor of Labor in accordance with 29 

CFR 71.7 and 71.9. 

§ 10.13 What process is used by a person 

who wants to correct FECA-related 

documents? 

Any request to amend a record 

covered by DOL/GOVT–1 should be 

directed to the district office having 

custody of the official file. No employer 

has the authority to issue 

determinations with regard to requests 

for the correction of records contained 

in or covered by DOL/GOVT–1. Any 

request for correction received by an 

employer must be referred to OWCP for 

review and decision. 

Rights and Penalties 

§ 10.15 May compensation rights be 

waived? 

No employer or other person may 

require an employee or other claimant 

to enter into any agreement, either 

before or after an injury or death, to 

waive his or her right to claim 

compensation under the FECA. No 

waiver of compensation rights shall be 

valid. 

§ 10.16 What criminal and civil penalties 

may be imposed in connection with a claim 

under the FECA? 

(a) A number of statutory provisions 

make it a crime to file a false or 

fraudulent claim or statement with the 

Government in connection with a claim 

under the FECA, or to wrongfully 

impede a FECA claim. Included among 

these provisions are 18 U.S.C. 287, 

1001, 1920, and 1922. Furthermore, a 

civil action to recover benefits paid 

erroneously under the FECA may be 

maintained under the False Claims Act, 

31 U.S.C. 3729–3733. Enforcement of 

such provisions that may apply to 

claims under the FECA is within the 

jurisdiction of the Department of Justice. 

(b) In addition, administrative 

proceedings may be initiated under the 

Program Fraud Civil Remedies Act of 

1986 (PFCRA), 31 U.S.C. 3801–12, to 

impose civil penalties and assessments 

against persons who make, submit, or 

present, or cause to be made, submitted 

or presented, false, fictitious or 

fraudulent claims or written statements 

to OWCP in connection with a claim 

under the FECA. The Department of 

Labor’s regulations implementing the 

PFRCA are found at 29 CFR part 22. 

§ 10.17 Is a beneficiary who defrauds the 

Government in connection with a claim for 

benefits still entitled to those benefits? 

When a beneficiary either pleads 

guilty to or is found guilty on either 

Federal or State criminal charges of 

defrauding the Federal Government in 

connection with a claim for benefits, the 

beneficiary’s entitlement to any further 

compensation benefits will terminate 

effective the date of conviction, which 

is the date of the verdict or, in the case 

of a plea bargain, the date the claimant 

made the plea in open court (not the 

date of sentencing or the date court 

papers were signed). The employing 

agency may, upon request, be required 

to provide the documentation needed 

for termination under this section. 

Termination of entitlement under this 

section is not affected by any 

subsequent change in or recurrence of 

the beneficiary’s medical condition. 

§ 10.18 Can a beneficiary who is 

incarcerated based on a felony conviction 

still receive benefits? 

(a) Whenever a beneficiary is 

incarcerated in a State or Federal jail, 

prison, penal institution or other 

correctional facility due to a State or 

Federal felony conviction, he or she 

forfeits all rights to compensation 

benefits during the period of 

incarceration. A beneficiary’s right to 

compensation benefits for the period of 

his or her incarceration is not restored 

after such incarceration ends, even 

though payment of compensation 

benefits may resume. A beneficiary has 

an affirmative duty to provide notice of 

any conviction and imprisonment. The 

employing agency shall provide OWCP 

any information or documentation they 

may have concerning such matters. 

(b) If the beneficiary has eligible 

dependents, OWCP will pay 

compensation to such dependents at a 

reduced rate during the period of his or 

her incarceration, by applying the 

percentages of 5 U.S.C. 8133(a)(1) 

through (5) to the beneficiary’s gross 

current entitlement rather than to the 

beneficiary’s monthly pay. 

(c) If OWCP’s decision on entitlement 

is pending when the period of 

incarceration begins, and compensation 

is due for a period of time prior to such 

incarceration, payment for that period 

will only be made to the beneficiary 

following his or her release. 

Subpart B—Filing Notices and Claims; 

Submitting Evidence 

Notices and Claims for Injury, Disease, 

and Death—Employee or Survivor’s 

Actions 

§ 10.100 How and when is a notice of 

traumatic injury filed? 

(a) To claim benefits under the FECA, 

an employee who sustains a workrelated traumatic injury must give 

notice of the injury in writing on Form 

CA–1, which may be obtained from the 

employer or from the Internet at 

www.dol.gov under forms. The 

employee must forward this notice to 

the employer. Another person, 

including the employer, may give notice 

of injury on the employee’s behalf. The 

person submitting a notice shall include 

the Social Security Number (SSN) of the 

injured employee. All such notices 

should be submitted electronically 

wherever feasible to facilitate processing 

of such claims. All employers that 

currently do not have such capability 

should create such a method by 

December 31, 2012. 

(b) For injuries sustained on or after 

September 7, 1974, a notice of injury 

must be filed within three years of the 

injury. (The form contains the necessary 

words of claim.) The requirements for 

filing notice are further described in 5 

U.S.C. 8119. Also see § 10.205 

concerning time requirements for filing 

claims for continuation of pay. 

(1) If the claim is not filed within 

three years, compensation may still be 

allowed if notice of injury was given 

within 30 days or the employer had 

actual knowledge of the injury or death 

within 30 days after occurrence. This 

knowledge may consist of written 

records or verbal notification. An entry 

into an employee’s medical record may 

also satisfy this requirement if it is 

sufficient to place the employer on 

notice of a possible work-related injury 

or disease. 

(2) OWCP may excuse failure to 

comply with the three-year time 

requirement because of truly 

exceptional circumstances (for example, 

being held prisoner of war). 

(3) The claimant may withdraw his or 

her claim (but not the notice of injury) 

by so requesting in writing to OWCP at 

any time before OWCP determines 

eligibility for benefits. Any continuation 

of pay (COP) granted to an employee 

after a claim is withdrawn must be 

charged to sick or annual leave, or 

considered an overpayment of pay 

consistent with 5 U.S.C. 5584, at the 

employee’s option. 

(c) However, in cases of latent 

disability, the time for filing claim does 

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not begin to run until the employee has 

a compensable disability and is aware, 

or reasonably should have been aware, 

of the causal relationship between the 

disability and the employment (see 5 

U.S.C. 8122(b)). 

§ 10.101 How and when is a notice of 

occupational disease filed? 

(a) To claim benefits under the FECA, 

an employee who has a disease which 

he or she believes to be work-related 

must give notice of the condition in 

writing on Form CA–2, which may be 

obtained from the employer or from the 

Internet at www.dol.gov under forms. 

The employee must forward this notice 

to the employer. Another person, 

including the employer, may do so on 

the employee’s behalf. The person 

submitting a notice shall include the 

Social Security Number (SSN) of the 

injured employee. All such notices 

should be submitted electronically 

wherever feasible to facilitate processing 

of such claims. All employers that 

currently do not have such capability 

should create such a method by 

December 31, 2012. The claimant may 

withdraw his or her claim (but not the 

notice of occupational disease) by so 

requesting in writing to OWCP at any 

time before OWCP determines eligibility 

for benefits. 

(b) For occupational diseases 

sustained as a result of exposure to 

injurious work factors that occurs on or 

after September 7, 1974, a notice of 

occupational disease must be filed 

within three years of the onset of the 

condition. (The form contains the 

necessary words of claim.) The 

requirements for timely filing are 

described in § 10.100(b)(1) through (3). 

(c) However, in cases of latent 

disability, the time for filing claim does 

not begin to run until the employee has 

a compensable disability and is aware, 

or reasonably should have been aware, 

of the causal relationship between the 

disability and the employment (see 5 

U.S.C. 8122(b)). 

§ 10.102 How and when is a claim for wage 

loss compensation filed? 

(a) Form CA–7 is used to claim 

compensation for periods of disability 

not covered by COP. 

(1) An employee who is disabled with 

loss of pay for more than three calendar 

days due to an injury, or someone acting 

on his or her behalf, must file Form CA– 

7 before compensation can be paid. 

(2) The employee shall complete the 

front of Form CA–7 and submit the form 

to the employer for completion and 

transmission to OWCP. The form should 

be completed as soon as possible, but no 

more than 14 calendar days after the 

date pay stops due to the injury or 

disease. All such notices should be 

submitted electronically wherever 

feasible to facilitate processing of such 

claims. All employers that currently do 

not have such capability should create 

such a method by December 31, 2012. 

(3) The requirements for filing claims 

are further described in 5 U.S.C. 8121. 

(b) Form CA–7 is also used to claim 

compensation for additional periods of 

disability following the initial injury. 

(1) It is the employee’s responsibility 

to submit Form CA–7. Without receipt 

of such claim, OWCP has no knowledge 

of continuing wage loss. Therefore, 

while disability continues, the 

employee should submit a claim on 

Form CA–7 each two weeks until 

otherwise instructed by OWCP. 

(2) The employee shall complete the 

front of Form CA–7 and submit the form 

to the employer for completion and 

transmission to OWCP. 

(3) The employee is responsible for 

submitting, or arranging for the 

submittal of, medical evidence to OWCP 

which establishes both that disability 

continues and that the disability is due 

to the work-related injury. Form CA–20a 

is submitted with Form CA–7 for this 

purpose. 

§ 10.103 How and when is a claim for 

permanent impairment filed? 

Form CA–7 is used to claim 

compensation for impairment to a body 

part covered under the schedule 

established by 5 U.S.C. 8107. All such 

notices should be submitted 

electronically wherever feasible to 

facilitate processing of such claims. All 

employers that currently do not have 

such capability should create such a 

method by December 31, 2012. If Form 

CA–7 has already been filed to claim 

disability compensation, an employee 

may file a claim for such impairment by 

sending a letter to OWCP which 

specifies the nature of the benefit 

claimed. OWCP may create a form 

specifically for schedule award claims; 

if that form is created, only that form 

may be used to file a claim under 5 

U.S.C. 8107. 

§ 10.104 How and when is a claim for 

recurrence filed? 

(a) A recurrence should be reported 

on Form CA–2a if that recurrence causes 

the employee to lose time from work 

and incur a wage loss, or if the 

employee experiences a renewed need 

for treatment after previously being 

released from care. However, a notice of 

recurrence should not be filed when a 

new injury, new occupational disease, 

or new event contributing to an alreadyexisting occupational disease has 

occurred. In these instances, the 

employee should file Form CA–1 or 

CA–2. 

(b) The employee has the burden of 

establishing by the weight of reliable, 

probative and substantial evidence that 

the recurrence of disability is causally 

related to the original injury. 

(1) The employee must include a 

detailed factual statement as described 

on Form CA–2a. The employer may 

submit comments concerning the 

employee’s statement. 

(2) The employee should arrange for 

the submittal of a detailed medical 

report from the attending physician as 

described on Form CA–2a. The 

employee should also submit, or arrange 

for the submittal of, similar medical 

reports for any examination and/or 

treatment received after returning to 

work following the original injury. 

(c) A claim for recurrence of disability 

is not available where OWCP has issued 

a loss of wage-earning capacity 

determination. Under that circumstance, 

the only method for claiming additional 

wage loss compensation is through a 

request to modify that determination. 

However, OWCP is not precluded from 

adjudicating a limited period of 

disability following the issuance of a 

loss of wage-earning capacity decision, 

such as where an employee has a 

demonstrated need for surgery. 

§ 10.105 How and when is a notice of 

death and claim for benefits filed? 

(a) If an employee dies from a workrelated traumatic injury or an 

occupational disease, any survivor may 

file a claim for death benefits using 

Form CA–5 or CA–5b, which may be 

obtained from the employer or from the 

Internet at www.dol.gov under forms. 

The survivor must provide this notice in 

writing and forward it to the employer. 

Another person, including the 

employer, may do so on the survivor’s 

behalf. The survivor may also submit 

the completed Form CA–5 or CA–5b 

directly to OWCP. The survivor shall 

disclose the SSNs of all survivors on 

whose behalf claim for benefits is made 

in addition to the SSN of the deceased 

employee. All such notices should be 

submitted electronically wherever 

feasible to facilitate processing of such 

claims. All employers that currently do 

not have such capability should create 

such a method by December 31, 2012. 

The survivor may withdraw his or her 

claim (but not the notice of death) by so 

requesting in writing to OWCP at any 

time before OWCP determines eligibility 

for benefits. 

(b) For deaths that occur on or after 

September 7, 1974, a notice of death 

must be filed within three years of the 

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death. The form contains the necessary 

words of claim. The requirements for 

timely filing are described in 

§ 10.100(b)(1) through (3). 

(c) However, in cases of death due to 

latent disability, the time for filing the 

claim does not begin to run until the 

survivor is aware, or reasonably should 

have been aware, of the causal 

relationship between the death and the 

employment (see 5 U.S.C. 8122(b)). 

(d) The filing of a notice of injury or 

occupational disease will satisfy the 

time requirements for a death claim 

based on the same injury or 

occupational disease. If an injured 

employee or someone acting on the 

employee’s behalf does not file a claim 

before the employee’s death, the right to 

claim compensation for disability other 

than medical expenses ceases and does 

not survive. 

(e) A survivor must be alive to receive 

any payment; there is no vested right to 

such payment. A report as described in 

§ 10.414 of this part must be filed once 

each year to support continuing 

payments of compensation. 

Notices and Claims for Injury, Disease, 

and Death—Employer’s Actions 

§ 10.110 What should the employer do 

when an employee files a notice of 

traumatic injury or occupational disease? 

(a) The employer shall complete the 

agency portion of Form CA–1 (for 

traumatic injury) or CA–2 (for 

occupational disease) no more than 10 

working days after receipt of notice from 

the employee. The employer shall also 

complete the Receipt of Notice and give 

it to the employee, along with copies of 

both sides of Form CA–1 or Form CA– 

2. 

(b) The employer must complete and 

transmit the form to OWCP within 10 

working days after receipt of notice from 

the employee if the injury or disease 

will likely result in: 

(1) A medical charge against OWCP; 

(2) Disability for work beyond the day 

or shift of injury; 

(3) The need for more than two 

appointments for medical examination 

and/or treatment on separate days, 

leading to time loss from work; 

(4) Future disability; 

(5) Permanent impairment; or 

(6) Continuation of pay pursuant to 5 

U.S.C. 8118. 

(c) The employer should not wait for 

submittal of supporting evidence before 

sending the form to OWCP. 

(d) If none of the conditions in 

paragraph (b) of this section applies, the 

Form CA–1 or CA–2 shall be retained as 

a permanent record in the Employee 

Medical Folder in accordance with the 

guidelines established by the Office of 

Personnel Management. 

§ 10.111 What should the employer do 

when an employee files an initial claim for 

compensation due to disability or 

permanent impairment? 

(a) Except for employees covered by 

paragraph (d) of this section, when an 

employee is disabled by a work-related 

injury and loses pay for more than three 

calendar days, or has a permanent 

impairment or serious disfigurement as 

described in 5 U.S.C. 8107, the 

employer shall furnish the employee 

with Form CA–7 for the purpose of 

claiming compensation. 

(b) If the employee is receiving 

continuation of pay (COP), the employer 

should give Form CA–7 to the employee 

by the 30th day of the COP period and 

submit the form to OWCP by the 40th 

day of the COP period. If the employee 

has not returned the form to the 

employer by the 40th day of the COP 

period, the employer should ask him or 

her to submit it as soon as possible. 

(c) Upon receipt of Form CA–7 from 

the employee, or someone acting on his 

or her behalf, the employer shall 

complete the appropriate portions of the 

form. As soon as possible, but no more 

than five working days after receipt 

from the employee, the employer shall 

forward the completed Form CA–7 and 

any accompanying medical report to 

OWCP. 

(d) Postal Service employees are not 

entitled to compensation or 

continuation of pay for the waiting 

period, the first three days of disability. 

Such employees may use annual leave, 

sick leave or leave without pay during 

that period; however, if the disability 

exceeds 14 days, the employee may 

have their sick leave or annual leave 

reinstated or receive pay for the time 

spent on leave without pay. This 

waiting period does not apply to the 

provision of medical care, and days of 

time loss for medical treatment only 

with no work-related disability do not 

count as part of the waiting period. A 

Postal Service employee seeking wage 

loss compensation for this period 

should utilize Form CA–7 to claim such 

benefits. 

§ 10.112 What should the employer do 

when an employee files a claim for 

continuing compensation due to disability? 

(a) If the employee continues in a 

leave-without-pay status due to a workrelated injury after the period of 

compensation initially claimed on Form 

CA–7, the employer shall furnish the 

employee with another Form CA–7 for 

the purpose of claiming continuing 

compensation. 

(b) Upon receipt of Form CA–7 from 

the employee, or someone acting on his 

or her behalf, the employer shall 

complete the appropriate portions of the 

form. As soon as possible, but no more 

than five working days after receipt 

from the employee, the employer shall 

forward the completed Form CA–7 and 

any accompanying medical report to 

OWCP. 

§ 10.113 What should the employer do 

when an employee dies from a work-related 

injury or disease? 

(a) The employer shall immediately 

report a death due to a work-related 

traumatic injury or occupational disease 

to OWCP by telephone, telegram, or 

facsimile (fax). No more than 10 

working days after notification of the 

death, the employer shall complete and 

send Form CA–6 to OWCP. 

(b) When possible, the employer shall 

furnish a Form CA–5 or CA–5b to all 

persons likely to be entitled to 

compensation for death of an employee. 

The employer should also supply 

information about completing and filing 

the form. 

(c) The employer shall promptly 

transmit Form CA–5 or CA–5b to 

OWCP. The employer shall also 

promptly transmit to OWCP any other 

claim or paper submitted which appears 

to claim compensation on account of 

death. 

Evidence and Burden of Proof 

§ 10.115 What evidence is needed to 

establish a claim? 

Forms CA–1, CA–2, CA–5 and CA–5b 

describe the basic evidence required. 

OWCP may send a request for additional 

evidence to the claimant and to his or 

her representative, if any; however the 

burden of proof still remains with the 

claimant. Evidence should be submitted 

in writing. The evidence submitted 

must be reliable, probative and 

substantial. Each claim for 

compensation must meet five 

requirements before OWCP can accept 

it. These requirements, which the 

employee must establish to meet his or 

her burden of proof, are as follows: 

(a) The claim was filed within the 

time limits specified by the FECA; 

(b) The injured person was, at the 

time of injury, an employee of the 

United States as defined in 5 U.S.C. 

8101(1) and § 10.5(h) of this part; 

(c) The fact that an injury, disease or 

death occurred; 

(d) The injury, disease or death 

occurred while the employee was in the 

performance of duty; and 

(e) The medical condition for which 

compensation or medical benefits is 

claimed is causally related to the 

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claimed injury, disease or death. Neither 

the fact that the condition manifests 

itself during a period of Federal 

employment, nor the belief of the 

claimant that factors of employment 

caused or aggravated the condition, is 

sufficient in itself to establish causal 

relationship. 

(f) In all claims, the claimant is 

responsible for submitting, or arranging 

for submittal of, a medical report from 

the attending physician. For wage loss 

benefits, the claimant must also submit 

medical evidence showing that the 

condition claimed is disabling. The 

rules for submitting medical reports are 

found in §§ 10.330 through 10.333. 

§ 10.116 What additional evidence is 

needed in cases based on occupational 

disease? 

(a) The employee must submit the 

specific detailed information described 

on Form CA–2 and should submit any 

checklist (Form CA–35, A–H) provided 

by the employer. OWCP has developed 

these checklists to address particular 

occupational diseases. The medical 

report should also include the 

information specified on the checklist 

for the particular disease claimed. 

(b) The employer should submit the 

specific detailed information described 

on Form CA–2 and on any checklist 

pertaining to the claimed disease. 

§ 10.117 What happens if, in any claim, the 

employer contests any of the facts as 

stated by the claimant? 

(a) An employer who has reason to 

disagree with any aspect of the 

claimant’s report shall submit a 

statement to OWCP that specifically 

describes the factual allegation or 

argument with which it disagrees and 

provide evidence or argument to 

support its position. The employer may 

include supporting documents such as 

witness statements, medical reports or 

records, or any other relevant 

information. 

(b) Any such statement shall be 

submitted to OWCP with the notice of 

traumatic injury or death, or within 30 

calendar days from the date notice of 

occupational disease or death is 

received from the claimant. If the 

employer does not submit a written 

explanation to support the 

disagreement, OWCP may accept the 

claimant’s report of injury as 

established. The employer may not use 

a disagreement with an aspect of the 

claimant’s report to delay forwarding 

the claim to OWCP or to compel or 

induce the claimant to change or 

withdraw the claim. 

§ 10.118 Does the employer participate in 

the claims process in any other way? 

(a) The employer is responsible for 

submitting to OWCP all relevant and 

probative factual and medical evidence 

in its possession, or which it may 

acquire through investigation or other 

means. Such evidence may be submitted 

at any time. 

(b) The employer may ascertain the 

events surrounding an injury and the 

extent of disability where it appears that 

an employee who alleges total disability 

may be performing other work, or may 

be engaging in activities which would 

indicate less than total disability. This 

authority is in addition to that given in 

§ 10.118(a). However, the provisions of 

the Privacy Act apply to any endeavor 

by the employer to ascertain the facts of 

the case (see §§ 10.10 and 10.11). 

(c) The employer does not have the 

right, except as provided in subpart C of 

this part, to actively participate in the 

claims adjudication process. 

§ 10.119 What action will OWCP take with 

respect to information submitted by the 

employer? 

OWCP will consider all evidence 

submitted appropriately, and OWCP 

will inform the employee, the 

employee’s representative, if any, and 

the employer of any action taken. Where 

an employer contests a claim within 30 

days of the initial submittal and the 

claim is later approved, OWCP will 

notify the employer of the rationale for 

approving the claim. 

§ 10.120 May a claimant submit additional 

evidence? 

A claimant or a person acting on his 

or her behalf may submit to OWCP at 

any time any other evidence relevant to 

the claim. 

§ 10.121 What happens if OWCP needs 

more evidence from the claimant? 

If the claimant submits factual 

evidence, medical evidence, or both, but 

OWCP determines that this evidence is 

not sufficient to meet the burden of 

proof, OWCP will inform the claimant 

of the additional evidence needed. The 

claimant will be allowed at least 30 days 

to submit the evidence required. OWCP 

is not required to notify the claimant a 

second time if the evidence submitted 

in response to its first request is not 

sufficient to meet the burden of proof. 

Decisions on Entitlement to Benefits 

§ 10.125 How does OWCP determine 

entitlement to benefits? 

(a) In reaching any decision with 

respect to FECA coverage or 

entitlement, OWCP considers the claim 

presented by the claimant, the report by 

the employer, and the results of such 

investigation as OWCP may deem 

necessary. 

(b) OWCP claims staff apply the law, 

the regulations, and its procedures to 

the facts as reported or obtained upon 

investigation. They also apply decisions 

of the Employees’ Compensation 

Appeals Board and administrative 

decisions of OWCP as set forth in FECA 

Program Memoranda. 

§ 10.126 What does the decision contain? 

The decision shall contain findings of 

fact and a statement of reasons. It is 

accompanied by information about the 

claimant’s appeal rights, which may 

include the right to a hearing, a 

reconsideration, and/or a review by the 

Employees’ Compensation Appeals 

Board. (See subpart G of this part.) 

§ 10.127 To whom is the decision sent? 

A copy of the decision shall be mailed 

to the employee’s last known address. If 

the employee has a designated 

representative before OWCP, a copy of 

the decision will also be mailed to the 

representative. A copy of the decision 

will also be sent to the employer. 

Subpart C—Continuation of Pay 

§ 10.200 What is continuation of pay? 

(a) For most employees who sustain a 

traumatic injury, the FECA provides 

that the employer must continue the 

employee’s regular pay during any 

periods of resulting disability, up to a 

maximum of 45 calendar days. This is 

called continuation of pay, or COP. The 

employer, not OWCP, pays COP. Unlike 

wage loss benefits, COP is subject to 

taxes and all other payroll deductions 

that are made from regular income. 

(b) The employer must continue the 

pay of an employee, except for Postal 

Service employees pursuant to 5 U.S.C. 

8117 and as provided below in 

paragraph (c) of this section, who is 

eligible for COP, and may not require 

the employee to use his or her own sick 

or annual leave, unless the provisions of 

§§ 10.200(c), 10.220, or 10.222 apply. 

However, while continuing the 

employee’s pay, the employer may 

controvert the employee’s COP 

entitlement pending a final 

determination by OWCP. OWCP has the 

exclusive authority to determine 

questions of entitlement and all other 

issues relating to COP. 

(c) Postal Service employees are not 

entitled to continuation of pay for the 

first 3 days of temporary disability and 

may use annual, sick or leave without 

pay during that period, except that if the 

disability exceeds 14 days or is followed 

by permanent disability, the Postal 

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Service employee may have that leave 

restored. 

(d) The FECA excludes certain 

persons from eligibility for COP. COP 

cannot be authorized for members of 

these excluded groups, which include 

but are not limited to: persons rendering 

personal service to the United States 

similar to the service of a civil officer or 

employee of the United States, without 

pay or for nominal pay; volunteers (for 

instance, in the Civil Air Patrol and 

Peace Corps); Job Corps and Youth 

Conservation Corps enrollees; 

individuals in work- study programs, 

and grand or petit jurors (unless 

otherwise Federal employees). 

Eligibility for COP 

§ 10.205 What conditions must be met to 

receive COP? 

(a) To be eligible for COP, a person 

must: 

(1) Have a ‘‘traumatic injury’’ as 

defined at § 10.5(ee) which is job-related 

and the cause of the disability, and/or 

the cause of lost time due to the need 

for medical examination and treatment; 

(2) File Form CA–1 within 30 days of 

the date of the injury (but if that form 

is not available, using another form 

would not alone preclude receipt); and 

(3) Begin losing time from work due 

to the traumatic injury within 45 days 

of the injury. 

(b) OWCP may find that the employee 

is not entitled to COP for other reasons 

consistent with the statute (see 

§ 10.220). 

§ 10.206 May an employee who uses leave 

after an injury later decide to use COP 

instead? 

On Form CA–1, an employee may 

elect to use accumulated sick or annual 

leave, or leave advanced by the agency, 

instead of electing COP. The employee 

can change the election between leave 

and COP for prospective periods at any 

point while eligibility for COP remains. 

The employee may also change the 

election for past periods and request 

COP in lieu of leave already taken for 

the same period. In either situation, the 

following provisions apply: 

(a) The request must be made to the 

employer within one year of the date the 

leave was used or the date of the written 

approval of the claim by OWCP (if 

written approval is issued), whichever 

is later. 

(b) Where the employee is otherwise 

eligible, the agency shall restore leave 

taken in lieu of any of the 45 COP days. 

Where any of the 45 COP days remain 

unused, the agency shall continue pay 

prospectively. 

(c) The use of leave may not be used 

to delay or extend the 45-day COP 

period or to otherwise affect the time 

limitation as provided by 5 U.S.C. 8117. 

Therefore, any leave used during the 

period of eligibility counts towards the 

45-day maximum entitlement to COP. 

§ 10.207 May an employee who returns to 

work, then stops work again due to the 

effects of the injury, receive COP? 

If the employee recovers from 

disability and returns to work, then 

becomes disabled again and stops work, 

the employer shall pay any of the 45 

days of entitlement to COP not used 

during the initial period of disability 

where: 

(a) The employee completes Form 

CA–2a and elects to receive regular pay; 

(b) OWCP did not deny the original 

claim for disability; 

(c) The disability recurs and the 

employee stops work within 45 days of 

the time the employee first returned to 

work following the initial period of 

disability; and 

(d) Pay has not been continued for the 

entire 45 days. 

Responsibilities 

§ 10.210 What are the employee’s 

responsibilities in COP cases? 

An employee who sustains a 

traumatic injury which he or she 

considers disabling, or someone 

authorized to act on his or her behalf, 

must take the following actions to 

ensure continuing eligibility for COP. 

The employee must: 

(a) Complete and submit Form CA–1 

to the employing agency as soon as 

possible, but no later than 30 days from 

the date the traumatic injury occurred. 

(b) Ensure that medical evidence 

supporting disability resulting from the 

claimed traumatic injury, including a 

statement as to when the employee can 

return to his or her date of injury job, 

is provided to the employer within 10 

calendar days after filing the claim for 

COP. 

(c) Ensure that relevant medical 

evidence is submitted to OWCP, and 

cooperate with OWCP in developing the 

claim. 

(d) Ensure that the treating physician 

specifies work limitations and provides 

them to the employer and/or 

representatives of OWCP. 

(e) Provide to the treating physician a 

description of any specific alternative 

positions offered the employee, and 

ensure that the treating physician 

responds promptly to the employer and/ 

or OWCP, with an opinion as to whether 

and how soon the employee could 

perform that or any other specific 

position. 

§ 10.211 What are the employer’s 

responsibilities in COP cases? 

Once the employer learns of a 

traumatic injury sustained by an 

employee, it shall: 

(a) Provide a Form CA–1 and Form 

CA–16 to authorize medical care in 

accordance with § 10.300. Failure to do 

so may mean that OWCP will not 

uphold any termination of COP by the 

employer. 

(b) Advise the employee of the right 

to receive COP, and the need to elect 

among COP, annual or sick leave or 

leave without pay, for any period of 

disability. 

(c) Inform the employee of any 

decision to controvert COP and/or 

terminate pay, and the basis for doing 

so. 

(d) Complete Form CA–1 and transmit 

it, along with all other available 

pertinent information, (including the 

basis for any controversion), to OWCP 

within 10 working days after receiving 

the completed form from the employee. 

Calculation of COP 

§ 10.215 How does OWCP compute the 

number of days of COP used? 

COP is payable for a maximum of 45 

calendar days, and every day used is 

counted toward this maximum. The 

following rules apply: 

(a) Time lost on the day or shift of the 

injury does not count toward COP. 

(Instead, the agency must keep the 

employee in a pay status for that 

period); 

(b) The first COP day is the first day 

disability begins following the date of 

injury (providing it is within the 45 

days following the date of injury), 

except where the injury occurs before 

the beginning of the work day or shift, 

in which case the date of injury is 

charged to COP; 

(c) Any part of a day or shift (except 

for the day of the injury) counts as a full 

day toward the 45 calendar day total; 

(d) Regular days off are included if 

COP has been used on the regular work 

days immediately preceding or 

following the regular day(s) off, and 

medical evidence supports disability; 

and 

(e) Leave used during a period when 

COP is otherwise payable is counted 

toward the 45-day COP maximum as if 

the employee had been in a COP status. 

(f) For employees with part-time or 

intermittent schedules, all calendar days 

on which medical evidence indicates 

disability are counted as COP days, 

regardless of whether the employee was 

or would have been scheduled to work 

on those days. The rate at which COP 

is paid for these employees is calculated 

according to § 10.216(b). 

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Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 37915 

§ 10.216 How is the pay rate for COP 

calculated? 

The employer shall calculate COP 

using the period of time and the weekly 

pay rate. 

(a) The pay rate for COP purposes is 

equal to the employee’s regular 

‘‘weekly’’ pay (the average of the weekly 

pay over the preceding 52 weeks). 

(1) The pay rate excludes overtime 

pay, but includes other applicable extra 

pay except to the extent prohibited by 

law. 

(2) Changes in pay or salary (for 

example, promotion, demotion, withingrade increases, termination of a 

temporary detail, etc.) which would 

have otherwise occurred during the 45- 

day period are to be reflected in the 

weekly pay determination. 

(b) The weekly pay for COP purposes 

is determined according to the following 

formulas: 

(1) For full or part-time workers 

(permanent or temporary) who work the 

same number of hours each week of the 

year (or of the appointment), the weekly 

pay rate is the hourly pay rate (A) in 

effect on the date of injury multiplied by 

(×) the number of hours worked each 

week (B): A × B = Weekly Pay Rate. 

(2) For part-time workers (permanent 

or temporary) who do not work the 

same number of hours each week, but 

who do work each week of the year (or 

period of appointment), the weekly pay 

rate is an average of the weekly 

earnings, established by dividing (÷) the 

total earnings (excluding overtime) from 

the year immediately preceding the 

injury (A) by the number of weeks (or 

partial weeks) worked in that year (B): 

A ÷ B = Weekly Pay Rate. 

(3) For intermittent and seasonal 

workers, whether permanent or 

temporary, who do not work either the 

same number of hours or every week of 

the year (or period of appointment), the 

weekly pay rate is the average weekly 

earnings established by dividing (÷) the 

total earnings during the full 12-month 

period immediately preceding the date 

of injury (excluding overtime) (A), by 

the number of weeks (or partial weeks) 

worked during that year (B) (that is, A 

÷ B); or 150 times the average daily 

wage earned in the employment during 

the days employed within the full year 

immediately preceding the date of 

injury divided by 52 weeks, whichever 

is greater. 

§ 10.217 Is COP charged if the employee 

continues to work, but in a different job that 

pays less? 

If the employee cannot perform the 

duties of his or her regular position, but 

instead works in another job with 

different duties with no loss in pay, 

then COP is not chargeable. COP must 

be paid and the days counted against 

the 45 days authorized by law whenever 

an actual reduction of pay results from 

the injury, including a reduction of pay 

for the employee’s normal 

administrative workweek that results 

from a change or diminution in his or 

her duties following an injury. However, 

this does not include a reduction of pay 

that is due solely to an employer being 

prohibited by law from paying extra pay 

to an employee for work he or she does 

not actually perform. 

Controversion and Termination of COP 

§ 10.220 When is an employer not required 

to pay COP? 

An employer shall continue the 

regular pay of an eligible employee 

without a break in time for up to 45 

calendar days, except when, and only 

when: 

(a) The disability was not caused by 

a traumatic injury; 

(b) The employee is not a citizen of 

the United States or Canada; 

(c) No written claim was filed within 

30 days from the date of injury; 

(d) The injury was not reported until 

after employment has been terminated; 

(e) The injury occurred off the 

employing agency’s premises and was 

otherwise not within the performance of 

official duties; 

(f) The injury was caused by the 

employee’s willful misconduct, intent to 

injure or kill himself or herself or 

another person, or was proximately 

caused by intoxication by alcohol or 

illegal drugs; or 

(g) Work did not stop until more than 

45 days following the injury. 

§ 10.221 How is a claim for COP 

controverted? 

When the employer stops an 

employee’s pay for one of the reasons 

cited in § 10.220, the employer must 

controvert the claim for COP on Form 

CA–1, explaining in detail the basis for 

the refusal. The final determination on 

entitlement to COP always rests with 

OWCP. 

§ 10.222 When may an employer terminate 

COP which has already begun? 

(a) Where the employer has continued 

the pay of the employee, it may be 

stopped only when at least one of the 

following circumstances is present: 

(1) Medical evidence which on its 

face supports disability due to a workrelated injury is not received within 10 

calendar days after the claim is 

submitted (unless the employer’s own 

investigation shows disability to exist). 

Where the medical evidence is later 

provided, however, COP shall be 

reinstated retroactive to the date of 

termination; 

(2) The medical evidence from the 

treating physician shows that the 

employee is not disabled from his or her 

regular position; 

(3) Medical evidence from the treating 

physician shows that the employee is 

not totally disabled, and the employee 

refuses a written offer of a suitable 

alternative position which is approved 

by the attending physician. If OWCP 

later determines that the position was 

not suitable, OWCP will direct the 

employer to grant the employee COP 

retroactive to the termination date. 

(4) The employee returns to work 

with no loss of pay; 

(5) The employee’s period of 

employment expires or employment is 

otherwise terminated (as established 

prior to the date of injury); 

(6) OWCP directs the employer to stop 

COP; and/or 

(7) COP has been paid for 45 calendar 

days. 

(b) An employer may not interrupt or 

stop COP to which the employee is 

otherwise entitled because of a 

disciplinary action, unless a preliminary 

notice was issued to the employee 

before the date of injury and the action 

becomes final or otherwise takes effect 

during the COP period. 

(c) An employer cannot otherwise 

stop COP unless it does so for one of the 

reasons found in this section or 

§ 10.220. Where an employer stops COP, 

it must file a controversion with OWCP, 

setting forth the basis on which it 

terminated COP, no later than the 

effective date of the termination. 

§ 10.223 Are there other circumstances 

under which OWCP will not authorize 

payment of COP? 

When OWCP finds that an employee 

or his or her representative refuses or 

obstructs a medical examination 

required by OWCP, the right to COP is 

suspended until the refusal or 

obstruction ceases. COP already paid or 

payable for the period of suspension is 

forfeited. If already paid, the COP may 

be charged to annual or sick leave or 

considered an overpayment of pay 

consistent with 5 U.S.C. 5584. 

§ 10.224 What happens if OWCP finds that 

the employee is not entitled to COP after it 

has been paid? 

Where OWCP finds that the employee 

is not entitled to COP after it has been 

paid, the employee may chose to have 

the time charged to annual or sick leave, 

or considered an overpayment of pay 

under 5 U.S.C. 5584. The employer 

must correct any deficiencies in COP as 

directed by OWCP. 

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Subpart D—Medical and Related 

Benefits 

Emergency Medical Care 

§ 10.300 What are the basic rules for 

authorizing emergency medical care? 

(a) When an employee sustains a 

work-related traumatic injury that 

requires medical examination, medical 

treatment, or both, the employer shall 

authorize such examination and/or 

treatment by issuing a Form CA–16. 

This form may be used for occupational 

disease or illness only if the employer 

has obtained prior permission from 

OWCP. 

(b) The employer shall issue Form 

CA–16 within four hours of the claimed 

injury. If the employer gives verbal 

authorization for such care, he or she 

should issue a Form CA–16 within 48 

hours. The employer is not required to 

issue a Form CA–16 more than one 

week after the occurrence of the claimed 

injury. The employer may not authorize 

examination or medical or other 

treatment in any case that OWCP has 

disallowed. 

(c) Form CA–16 must contain the full 

name and address of the qualified 

physician or qualified medical facility 

authorized to provide service. The 

authorizing official must sign and date 

the form and must state his or her title. 

Form CA–16 authorizes treatment for 60 

days from the date of injury, unless 

OWCP terminates the authorization 

sooner. 

(d) The employer should advise the 

employee of the right to his or her initial 

choice of physician. The employer shall 

allow the employee to select a qualified 

physician, after advising him or her of 

those physicians excluded under 

subpart I of this part. The physician may 

be in private practice, including a health 

maintenance organization (HMO), or 

employed by a Federal agency such as 

the Department of the Army, Navy, Air 

Force, or Veterans Affairs. Any qualified 

physician may provide initial treatment 

of a work-related injury in an 

emergency. See also § 10.825(b). 

§ 10.301 May the physician designated on 

Form CA–16 refer the employee to another 

medical specialist or medical facility? 

The physician designated on Form 

CA–16 may refer the employee for 

further examination, testing, or medical 

care. OWCP will pay this physician or 

facility’s bill on the authority of Form 

CA–16. The employer should not issue 

a second Form CA–16. 

§ 10.302 Should the employer authorize 

medical care if he or she doubts that the 

injury occurred, or that it is work-related? 

If the employer doubts that the injury 

occurred, or that it is work-related, he 

or she should authorize medical care by 

completing Form CA–16 and checking 

block 6B of the form. If the medical and 

factual evidence sent to OWCP shows 

that the condition treated is not workrelated, OWCP will notify the employee, 

the employer, and the physician or 

hospital that OWCP will not authorize 

payment for any further treatment. 

§ 10.303 Should the employer use a Form 

CA–16 to authorize medical testing when an 

employee is exposed to a workplace hazard 

just once? 

(a) Simple exposure to a workplace 

hazard, such as an infectious agent, does 

not constitute a work-related injury 

entitling an employee to medical 

treatment under the FECA. The 

employer therefore should not use a 

Form CA–16 to authorize medical 

testing for an employee who has merely 

been exposed to a workplace hazard, 

unless the employee has sustained an 

identifiable injury or medical condition 

as a result of that exposure. OWCP will 

authorize preventive treatment only 

under certain well-defined 

circumstances (see § 10.313). 

(b) Employers may be required under 

other statutes or regulations to provide 

their employees with medical testing 

and/or other services in situations 

described in paragraph (a) of this 

section. For example, regulations issued 

by the Occupational Safety and Health 

Administration at 29 CFR chapter XVII 

require employers to provide their 

employees with medical consultations 

and/or examinations when they either 

exhibit symptoms consistent with 

exposure to a workplace hazard, or 

when an identifiable event such as a 

spill, leak or explosion occurs and 

results in the likelihood of exposure to 

a workplace hazard. In addition, 5 

U.S.C. 7901 authorizes employers to 

establish health programs whose staff 

can perform tests for workplace hazards, 

counsel employees for exposure or 

feared exposure to such hazards, and 

provide health care screening and other 

associated services. 

§ 10.304 Are there any exceptions to these 

procedures for obtaining medical care? 

In cases involving emergencies or 

unusual circumstances, OWCP may 

authorize treatment in a manner other 

than as stated in this subpart. 

Medical Treatment and Related Issues 

§ 10.310 What are the basic rules for 

obtaining medical care? 

(a) The employee is entitled to receive 

all medical services, appliances or 

supplies which a qualified physician 

prescribes or recommends and which 

OWCP considers necessary to treat the 

work-related injury. Billing for these 

services is described in subpart I of this 

part. The employee need not be disabled 

to receive such treatment. If there is any 

doubt as to whether a specific service, 

appliance or supply is necessary to treat 

the work-related injury, the employee 

should consult OWCP prior to obtaining 

it through the automated authorization 

process described in § 10.800. OWCP 

may also utilize the services of a field 

nurse to facilitate and coordinate 

medical care for the employee. OWCP 

may contract with a specific provider or 

providers to supply such services or 

appliances, including durable medical 

equipment and prescribed medications. 

(b) Any qualified physician or 

qualified hospital may provide such 

services, appliances and supplies. Nonphysician providers such as physicians’ 

assistants, nurse practitioners and 

physical therapists may also provide 

authorized services for injured 

employees to the extent allowed by 

applicable Federal and State law. 

(c) Where OWCP has not contracted 

for the provision of appliances or 

supplies, only a supplier of durable 

medical equipment that is registered in 

Medicare’s Durable Medical Equipment, 

Prosthetics, Orthotics and Supplies 

Accreditation process may furnish such 

appliances and supplies. OWCP may 

apply a test of cost-effectiveness to 

appliances and supplies, may offset the 

cost of prior rental payments against a 

future purchase price, and may provide 

refurbished appliances where 

appropriate. 

§ 10.311 What are the special rules for the 

services of chiropractors? 

(a) The services of chiropractors that 

may be reimbursed are limited by the 

FECA to treatment to correct a spinal 

subluxation. The costs of physical and 

related laboratory tests performed by or 

required by a chiropractor to diagnose 

such a subluxation are also payable. 

(b) In accordance with 5 U.S.C. 

8101(3), a diagnosis of spinal 

‘‘subluxation as demonstrated by X-ray 

to exist’’ must appear in the 

chiropractor’s report before OWCP can 

consider payment of a chiropractor’s 

bill. 

(c) A chiropractor may interpret his or 

her x-rays to the same extent as any 

other physician. To be given any weight, 

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the medical report must state that x-rays 

support the finding of spinal 

subluxation. OWCP will not necessarily 

require submittal of the x-ray, or a 

report of the x-ray, but the report must 

be available for submittal on request. 

(d) A chiropractor may also provide 

services in the nature of physical 

therapy under the direction of, and as 

prescribed by, a qualified physician. 

§ 10.312 What are the special rules for the 

services of clinical psychologists? 

A clinical psychologist may serve as 

a physician only within the scope of his 

or her practice as defined by State law. 

Therefore, a clinical psychologist may 

not serve as a physician for conditions 

that include a physical component 

unless the applicable State law allows 

clinical psychologists to treat physical 

conditions. A clinical psychologist may 

also perform testing, evaluation and 

other services under the direction of a 

qualified physician. 

§ 10.313 Will OWCP pay for preventive 

treatment? 

The FECA does not authorize 

payment for preventive measures such 

as vaccines and inoculations, and in 

general, preventive treatment may be a 

responsibility of the employing agency 

under the provisions of 5 U.S.C. 7901 

(see § 10.303). However, OWCP can 

authorize treatment for the following 

conditions, even though such treatment 

is designed, in part, to prevent further 

injury: 

(a) Complications of preventive 

measures which are provided or 

sponsored by the agency, such as an 

adverse reaction to prophylactic 

immunization. 

(b) Actual or probable exposure to a 

known contaminant due to an injury, 

thereby requiring disease-specific 

measures against infection. Examples 

include the provision of tetanus 

antitoxin or booster toxoid injections for 

puncture wounds; administration of 

rabies vaccine for a bite from a rabid or 

potentially rabid animal; or appropriate 

measures where exposure to human 

immunodeficiency virus (HIV) has 

occurred. 

(c) Conversion of tuberculin reaction 

from negative to positive following 

exposure to tuberculosis in the 

performance of duty. In this situation, 

the appropriate therapy may be 

authorized. 

(d) Where injury to one eye has 

resulted in loss of vision, periodic 

examination of the uninjured eye to 

detect possible sympathetic 

involvement of the uninjured eye at an 

early stage. 

§ 10.314 Will OWCP pay for the services of 

an attendant? 

Yes, OWCP will pay for the services 

of an attendant where the need for such 

services has been medically 

documented. In the exercise of the 

discretion afforded by 5 U.S.C. 8111(a), 

the Director has determined that, except 

where attendant service payments were 

being made prior to January 4, 1999, 

direct payments to the claimant to cover 

such services will no longer be made. 

Rather, the cost of providing attendant 

services will be paid under section 8103 

of the Act, and medical bills for these 

services will be considered under 

§ 10.801, so long as the personal care 

services have been determined to be 

medically necessary and are provided 

by a home health aide, licensed 

practical nurse, or similarly trained 

individual, subject to requirements 

specified by OWCP. By paying for the 

services under section 8103, OWCP can 

better determine whether the services 

provided are necessary, and what type 

of provider is most qualified to provide 

adequate care to meet the needs of the 

injured employee. In addition, a system 

requiring the personal care provider to 

submit a bill to OWCP, where the 

amount billed will be subject to OWCP’s 

fee schedule, will result in greater fiscal 

accountability. 

§ 10.315 Will OWCP pay for transportation 

to obtain medical treatment? 

(a) The employee is entitled to 

reimbursement of reasonable and 

necessary expenses, including 

transportation needed to obtain 

authorized medical services, appliances 

or supplies. To determine what is a 

reasonable distance to travel, OWCP 

will consider the availability of services, 

the employee’s condition, and the 

means of transportation. Generally, a 

roundtrip distance of up to 100 miles is 

considered a reasonable distance to 

travel. Travel should be undertaken by 

the shortest route, and if practical, by 

public conveyance. If the medical 

evidence shows that the employee is 

unable to use these means of 

transportation, OWCP may authorize 

travel by taxi or special conveyance. 

(b) For non-emergency medical 

treatment, if roundtrip travel of more 

than 100 miles is contemplated, or air 

transportation or overnight 

accommodations will be needed, the 

employee must submit a written request 

to OWCP for prior authorization with 

information describing the 

circumstances and necessity for such 

travel expenses. OWCP will approve the 

request if it determines that the travel 

expenses are reasonable and necessary, 

and are incident to obtaining authorized 

medical services, appliances or 

supplies. Requests for travel expenses 

that are often approved include those 

resulting from referrals to a specialist for 

further medical treatment, and those 

involving air transportation of an 

employee who lives in a remote 

geographical area with limited local 

medical services. 

(c) If a claimant disagrees with the 

decision of OWCP that requested travel 

expenses are either not reasonable or 

necessary, or are not incident to 

obtaining authorized medical services or 

supplies, he or she may utilize the 

appeals process described in subpart G 

of this part. 

(d) The standard form designated for 

medical travel refund requests is Form 

OWCP–957 and must be used to seek 

reimbursement under this section. This 

form can be obtained from OWCP. 

§ 10.316 After selecting a treating 

physician, may an employee choose to be 

treated by another physician instead? 

(a) When the physician originally 

selected to provide treatment for a workrelated injury refers the employee to a 

specialist for further medical care, the 

employee need not consult OWCP for 

approval. In all other instances, 

however, the employee must submit a 

written request to OWCP with his or her 

reasons for desiring a change of 

physician. 

(b) OWCP will approve the request if 

it determines that the reasons submitted 

are sufficient. Requests that are often 

approved include those for transfer of 

care from a general practitioner to a 

physician who specializes in treating 

conditions like the work-related one, or 

the need for a new physician when an 

employee has moved. The employer 

may not authorize a change of 

physicians. 

Directed Medical Examinations 

§ 10.320 Can OWCP require an employee 

to be examined by another physician? 

OWCP sometimes needs a second 

opinion from a medical specialist. The 

employee must submit to examination 

by a qualified physician as often and at 

such times and places as OWCP 

considers reasonably necessary. The 

employee may have a qualified 

physician, paid by him or her, present 

at such examination. However, the 

employee is not entitled to have anyone 

else present at the examination unless 

there is rationalized medical evidence 

that establishes that someone else is 

needed in the room or OWCP decides 

that exceptional circumstances exist. 

Where an employee requires an 

accommodation, such as where a 

hearing-impaired employee needs an 

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interpreter, the presence of an 

interpreter will be allowed. Also, OWCP 

may send a case file for second opinion 

review where actual examination is not 

needed, or where the employee is 

deceased. 

§ 10.321 What happens if the opinion of 

the physician selected by OWCP differs 

from the opinion of the physician selected 

by the employee? 

(a) If one medical opinion holds more 

probative value, OWCP will base its 

determination of entitlement on that 

medical conclusion (see § 10.502). A 

difference in medical opinion sufficient 

to be considered a conflict occurs when 

two reports of virtually equal weight 

and rationale reach opposing 

conclusions (see James P. Roberts, 31 

ECAB 1010 (1980)). 

(b) If a conflict exists between the 

medical opinion of the employee’s 

physician and the medical opinion of 

either a second opinion physician or an 

OWCP medical adviser or consultant, 

OWCP shall appoint a third physician to 

make an examination (see § 10.502). 

This is called a referee or impartial 

examination. OWCP will select a 

physician who is qualified in the 

appropriate specialty and who has had 

no prior connection with the case. The 

employee is not entitled to have anyone 

present at the examination unless 

OWCP decides that exceptional 

circumstances exist. For example, where 

a hearing-impaired employee needs an 

interpreter, the presence of an 

interpreter would be allowed. Also, a 

case file may be sent for referee or 

impartial medical review where there is 

no need for an actual examination, or 

where the employee is deceased. 

§ 10.322 Who pays for second opinion and 

referee examinations? 

OWCP will pay second opinion and 

referee medical specialists directly. 

OWCP will reimburse the employee all 

necessary and reasonable expenses 

incident to such an examination, 

including transportation costs and 

actual wages lost for the time needed to 

submit to an examination required by 

OWCP. 

§ 10.323 What are the penalties for failing 

to report for or obstructing a second 

opinion or referee examination? 

(a) If an employee refuses to submit to 

or in any way obstructs an examination 

required by OWCP, including testing 

such as functional capacity 

determinations conducted in connection 

with an OWCP-directed medical 

examination, his or her right to 

compensation under the FECA is 

suspended under 5 U.S.C. 8123(d) until 

such refusal or obstruction stops. The 

action of the employee’s representative 

is considered to be the action of the 

employee for purposes of this section. 

The employee will forfeit compensation 

otherwise paid or payable under the 

FECA for the period of the refusal or 

obstruction, and any compensation 

already paid for that period will be 

declared an overpayment and will be 

subject to recovery pursuant to 5 U.S.C. 

8129. 

(b) If the employee does not report for 

an OWCP-directed examination or in 

any way obstructs this examination, he 

or she may provide an explanation to 

OWCP within 14 days. If this 

explanation does not establish good 

cause for the employee’s actions, 

entitlement to compensation will be 

suspended in accordance with 5 U.S.C. 

8123(d). Should the employee 

subsequently agree to attend the 

examination or cease the obstruction (as 

expressed in writing or by telephone 

documented on Form CA–110), OWCP 

will restore any periodic benefits to 

which the employee is entitled when 

the employee actually reports for and 

cooperates with the examination. 

Payment is retroactive to the date the 

employee agreed to attend or cease 

obstruction of the examination. 

§ 10.324 May an employer require an 

employee to undergo a physical 

examination in connection with a workrelated injury? 

The employer may have authority 

independent of the FECA to require the 

employee to undergo a medical 

examination to determine whether he or 

she meets the medical requirements of 

the position held or can perform the 

duties of that position. Nothing in the 

FECA or in this part affects such 

authority. However, no agency-required 

examination or related activity shall 

interfere with the employee’s initial 

choice of physician or the provision of 

any authorized examination or 

treatment, including the issuance of 

Form CA–16. 

Medical Reports 

§ 10.330 What are the requirements for 

medical reports? 

In all cases reported to OWCP, a 

medical report from the attending 

physician is required. This report 

should include: 

(a) Dates of examination and 

treatment; 

(b) History given by the employee; 

(c) Physical findings; 

(d) Results of diagnostic tests; 

(e) Diagnosis; 

(f) Course of treatment; 

(g) A description of any other 

conditions found but not due to the 

claimed injury; 

(h) The treatment given or 

recommended for the claimed injury; 

(i) The physician’s opinion, with 

medical reasons, as to causal 

relationship between the diagnosed 

condition(s) and the factors or 

conditions of the employment; 

(j) The extent of disability affecting 

the employee’s ability to work due to 

the injury; 

(k) The prognosis for recovery; and 

(l) All other material findings. 

§ 10.331 How and when should the 

medical report be submitted? 

(a) Form CA–16 may be used for the 

initial medical report; Form CA–20 may 

be used for the initial report and for 

subsequent reports; and Form CA–20a 

may be used where continued 

compensation is claimed. Use of 

medical report forms is not required, 

however. The report may also be made 

in narrative form on the physician’s 

letterhead stationery. The report should 

bear the physician’s signature or 

signature stamp. OWCP may require an 

original signature on the report. 

(b) The report shall be submitted 

directly to OWCP as soon as possible 

after medical examination or treatment 

is received, either by the employee or 

the physician. (See also § 10.210.) The 

employer may request a copy of the 

report from OWCP. The employer 

should use Form CA–17 to obtain 

interim reports concerning the duty 

status of an employee with a disabling 

injury. 

§ 10.332 What additional medical 

information will OWCP require to support 

continuing payment of benefits? 

In all cases of serious injury or 

disease, especially those requiring 

hospital treatment or prolonged care, 

OWCP will request detailed narrative 

reports from the attending physician at 

periodic intervals. The physician will be 

asked to describe continuing medical 

treatment for the condition accepted by 

OWCP, a prognosis, a description of 

work limitations, if any, and the 

physician’s opinion as to the continuing 

causal relationship between the 

employee’s condition and factors of his 

or her Federal employment. 

§ 10.333 What additional medical 

information will OWCP require to support a 

claim for a schedule award? 

To support a claim for a schedule 

award, a medical report must contain 

accurate measurements of the function 

of the organ or member, in accordance 

with the American Medical 

Association’s Guides to the Evaluation 

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of Permanent Impairment as described 

in § 10.404. These measurements may 

include: The actual degree of loss of 

active or passive motion or deformity; 

the amount of atrophy; the decrease, if 

any, in strength; the disturbance of 

sensation; pain due to nerve 

impairment; the diagnosis of the 

condition; and functional impairment 

ratings. 

Medical Bills 

§ 10.335 How are medical bills submitted? 

Usually, medical providers submit 

bills directly to OWCP or to a bill 

processing agent designated by OWCP. 

The rules for submitting and paying 

bills are stated in subpart I of this part. 

An employee claiming reimbursement 

of medical expenses should submit an 

itemized bill as described in § 10.802. 

§ 10.336 What are the time frames for 

submitting bills? 

To be considered for payment, bills 

must be submitted by the end of the 

calendar year after the year when the 

expense was incurred, or by the end of 

the calendar year after the year when 

OWCP first accepted the claim as 

compensable, whichever is later. 

§ 10.337 If an employee is only partially 

reimbursed for a medical expense, must the 

provider refund the balance of the amount 

paid to the employee? 

(a) The OWCP fee schedule sets 

maximum limits on the amounts 

payable for many services (see § 10.805). 

The employee may be only partially 

reimbursed for medical expenses 

because the amount he or she paid to 

the medical provider for a service 

exceeds the maximum allowable charge 

set by the OWCP fee schedule. 

(b) If this happens, OWCP shall advise 

the employee of the maximum 

allowable charge for the service in 

question and of his or her responsibility 

to ask the provider to refund to the 

employee, or credit to the employee’s 

account, the amount he or she paid 

which exceeds the maximum allowable 

charge. The provider may request 

reconsideration of the fee determination 

as set forth in §§ 10.812 and 10.813. 

(c) If the provider does not refund to 

the employee or credit to his or her 

account the amount of money paid in 

excess of the charge which OWCP 

allows, the employee should submit 

documentation of the attempt to obtain 

such refund or credit to OWCP. OWCP 

may make reasonable reimbursement to 

the employee after reviewing the facts 

and circumstances of the case. 

Subpart E—Compensation and Related 

Benefits 

Compensation for Disability and 

Impairment 

§ 10.400 What is total disability? 

(a) Permanent total disability is 

presumed to result from the loss of use 

of both hands, both arms, both feet, or 

both legs, or the loss of sight of both 

eyes. 5 U.S.C. 8105(b). However, the 

presumption of permanent total 

disability as a result of such loss may be 

rebutted by evidence to the contrary, 

such as evidence of continued ability to 

work and to earn wages despite the loss. 

(b) Temporary total disability is 

defined as the inability to return to the 

position held at the time of injury or 

earn equivalent wages, or to perform 

other gainful employment, due to the 

work-related injury. Except as presumed 

under paragraph (a) of this section, an 

employee’s disability status is always 

considered temporary pending return to 

work. 

§ 10.401 When and how is compensation 

for total disability paid? 

(a) Compensation is payable when an 

employee starts to lose pay if the injury 

causes permanent disability or if pay 

loss continues for more than 14 calendar 

days. Otherwise, compensation is 

payable on the fourth day after pay 

stops pursuant to 5 U.S.C. 8117(a). 

Compensation may not be paid while an 

injured employee is in a continuation of 

pay status or receives pay for leave or, 

for Postal Service employees, for the 

first three days of temporary disability 

as described in 5 U.S.C. 8117(b) and 

§ 10.200(c), except for medical or 

vocational rehabilitation benefits. 

(b) Compensation for total disability is 

payable at the rate of 662⁄3 percent of the 

pay rate if the employee has no 

dependents, or 75 percent of the pay 

rate if the employee has at least one 

dependent. (‘‘Dependents’’ are defined 

at 5 U.S.C. 8110(a).) 

§ 10.402 What is partial disability? 

An injured employee who cannot 

return to the position held at the time 

of injury (or earn equivalent wages) due 

to the work-related injury, but who is 

not totally disabled for all gainful 

employment, is considered to be 

partially disabled. 

§ 10.403 When and how is compensation 

for partial disability paid? 

(a) 5 U.S.C. 8115 outlines how 

compensation for partial disability is 

determined. If the employee has actual 

earnings which fairly and reasonably 

represent his or her wage-earning 

capacity, those earnings will form the 

basis for payment of compensation for 

partial disability. (See §§ 10.500 through 

10.521 concerning return to work.) If the 

employee’s actual earnings do not fairly 

and reasonably represent his or her 

wage-earning capacity, or if the 

employee has no actual earnings, OWCP 

uses the factors stated in 5 U.S.C. 8115 

to select a position which represents his 

or her wage-earning capacity, which 

include the nature of the injury, the 

degree of physical impairment, the 

usual employment, the age of the 

employee, the employee’s qualifications 

for other employment and the 

availability of suitable employment. 

However, OWCP will not secure 

employment for the employee in the 

position selected for establishing a 

wage-earning capacity. 

(b) Compensation for partial disability 

is payable as a percentage of the 

difference between the employee’s pay 

rate for compensation purposes and the 

employee’s wage-earning capacity. The 

percentage is 662⁄3 percent of this 

difference if the employee has no 

dependents, or 75 percent of this 

difference if the employee has at least 

one dependent. 

(c) The formula which OWCP uses to 

compute the compensation payable for 

partial disability employs the following 

terms: Pay rate for compensation 

purposes, which is defined in § 10.5(s) 

of this part; current pay rate, which 

means the salary or wages for the job 

held at the time of injury at the time of 

the determination; and earnings, which 

means the employee’s actual earnings, 

or the salary or pay rate of the position 

selected by OWCP as representing the 

employee’s wage-earning capacity. 

(d) The employee’s wage-earning 

capacity in terms of percentage is 

computed by dividing the employee’s 

earnings by the current pay rate. The 

comparison of earnings and ‘‘current’’ 

pay rate for the job held at the time of 

injury need not be made as of the 

beginning of partial disability. OWCP 

may use any convenient date for making 

the comparison as long as both wage 

rates are in effect on the date used for 

comparison. 

(e) The employee’s wage-earning 

capacity in terms of dollars is computed 

by first multiplying the pay rate for 

compensation purposes by the 

percentage of wage-earning capacity. 

The resulting dollar amount is then 

subtracted from the pay rate for 

compensation purposes to obtain the 

employee’s loss of wage-earning 

capacity. 

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§ 10.404 When and how is compensation 

for a schedule impairment paid? 

Compensation is provided for 

specified periods of time for the 

permanent loss or loss of use of certain 

members, organs and functions of the 

body. Such loss or loss of use is known 

as permanent impairment. 

Compensation for proportionate periods 

of time is payable for partial loss or loss 

of use of each member, organ or 

function. 5 U.S.C. 8107(b)(19). OWCP 

evaluates the degree of impairment to 

schedule members, organs and 

functions as defined in 5 U.S.C. 8107 

according to the standards set forth in 

the specified (by OWCP) edition of the 

American Medical Association’s Guides 

to the Evaluation of Permanent 

Impairment. 

(a) 5 U.S.C. 8107(c) provides 

compensation for loss to the following 

list of schedule members: 

Member Weeks 

Arm .................................................... 312 

Leg ..................................................... 288 

Hand .................................................. 244 

Foot .................................................... 205 

Eye ..................................................... 160 

Thumb ................................................ 75 

First Finger lost .................................. 46 

Great toe ............................................ 38 

Second finger .................................... 30 

Third finger ........................................ 25 

Toe other than great toe ................... 16 

Fourth finger ...................................... 15 

Hearing, one ear ................................ 52 

Hearing, both ears ............................. 200 

(b) Pursuant to the authority provided 

by 5 U.S.C. 8107(c)(22), the Secretary 

has added the following organs to the 

compensation schedule for injuries that 

were sustained on or after September 7, 

1974, except that a schedule award for 

the skin may be paid for injuries on or 

after September 11, 2001: 

Member Weeks 

Breast (one) ....................................... 52 

Kidney (one) ...................................... 156 

Larynx ................................................ 160 

Lung (one) ......................................... 156 

Penis .................................................. 205 

Testicle (one) ..................................... 52 

Tongue ............................................... 160 

Ovary (one) ........................................ 52 

Uterus/cervix and vulva/vagina ......... 205 

Skin .................................................... 205 

(c) Compensation for schedule awards 

is payable at 662⁄3 percent of the 

employee’s pay, or 75 percent of the pay 

when the employee has at least one 

dependent. 

(d) The period of compensation 

payable under 5 U.S.C. 8107(c) shall be 

reduced by the period of compensation 

paid or payable under the schedule for 

an earlier injury if: 

(1) Compensation in both cases is for 

impairment of the same member or 

function or different parts of the same 

member or function, or for 

disfigurement; and 

(2) OWCP finds that compensation 

payable for the later impairment in 

whole or in part would duplicate the 

compensation payable for the preexisting impairment. 

(e) Compensation not to exceed 

$3,500 may be paid for serious 

disfigurement of the face, head or neck 

which is likely to handicap a person in 

securing or maintaining employment. 

Under 5 U.S.C. 8107(21), a 

disfigurement award may be paid 

concurrently with schedule awards. 

§ 10.405 Who is considered a dependent in 

a claim based on disability or impairment? 

(a) Dependents include a wife or 

husband; an unmarried child under 18 

years of age; an unmarried child over 18 

who is incapable of self-support; a 

student, until he or she reaches 23 years 

of age or completes four years of school 

beyond the high school level; or a 

wholly dependent parent. 

(b) Augmented compensation payable 

for an unmarried child, which would 

otherwise terminate when the child 

reached the age of 18, may be continued 

while the child is a student as defined 

in 5 U.S.C. 8101(17). 

§ 10.406 What are the maximum and 

minimum rates of compensation in 

disability cases? 

(a) Compensation for total or partial 

disability may not exceed 75 percent of 

the basic monthly pay of the highest 

step of grade 15 of the General 

Schedule. (Basic monthly pay does not 

include locality adjustments.) However, 

this limit does not apply to disability 

sustained in the performance of duty 

which was due to an assault which 

occurred during an attempted 

assassination of a Federal official 

described under 18 U.S.C. 351(a) or 

1751(a). 

(b) Compensation for total disability 

may not be less than 75 percent of the 

basic monthly pay of the first step of 

grade 2 of the General Schedule or 

actual pay, whichever is less. (Basic 

monthly pay does not include locality 

adjustments.) 

Compensation for Death 

§ 10.410 Who is entitled to compensation 

in case of death, and what are the rates of 

compensation payable in death cases? 

(a) Pursuant to 5 U.S.C. 8133, benefits 

may be paid to eligible dependents of an 

employee whose death results from an 

injury sustained in the performance of 

duty. This benefit is separate and 

distinct from a death gratuity benefit 

under 5 U.S.C. 8102a and subpart J of 

this part. 

(b) If there is no child entitled to 

compensation, the employee’s surviving 

spouse will receive compensation equal 

to 50 percent of the employee’s monthly 

pay until death or remarriage before 

reaching age 55. Upon remarriage, the 

surviving spouse will be paid a lump 

sum equal to 24 times the monthly 

compensation payment (excluding 

compensation payable on account of 

another individual) to which the 

surviving spouse was entitled 

immediately before the remarriage. If 

remarriage occurs at age 55 or older, the 

lump-sum payment will not be paid and 

compensation will continue until death. 

(c) If there is a child entitled to 

compensation, the compensation for the 

surviving spouse will equal 45 percent 

of the employee’s monthly pay plus 15 

percent for each child, but the total 

percentage may not exceed 75 percent. 

(d) If there is a child entitled to 

compensation and no surviving spouse, 

compensation for one child will equal 

40 percent of the employee’s monthly 

pay. Fifteen percent will be awarded for 

each additional child, not to exceed 75 

percent, the total amount to be shared 

equally among all children. 

(e) If there is no child or surviving 

spouse entitled to compensation, the 

parents will receive compensation equal 

to 25 percent of the employee’s monthly 

pay if one parent was wholly dependent 

on the employee at the time of death 

and the other was not dependent to any 

extent, or 20 percent each if both were 

wholly dependent on the employee, or 

a proportionate amount in the discretion 

of the Director if one or both were 

partially dependent on the employee. If 

there is a child or surviving spouse 

entitled to compensation, the parents 

will receive so much of the 

compensation described in the 

preceding sentence as, when added to 

the total percentages payable to the 

surviving spouse and children, will not 

exceed a total of 75 percent of the 

employee’s monthly pay. 

(f) If there is no child, surviving 

spouse or dependent parent entitled to 

compensation, the brothers, sisters, 

grandparents and grandchildren will 

receive compensation equal to 20 

percent of the employee’s monthly pay 

to such dependent if one was wholly 

dependent on the employee at the time 

of death; or 30 percent if more than one 

was wholly dependent, divided among 

such dependents equally; or 10 percent 

if no one was wholly dependent but one 

or more was partly dependent, divided 

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among such dependents equally. If there 

is a child, surviving spouse or 

dependent parent entitled to 

compensation, the brothers, sisters, 

grandparents and grandchildren will 

receive so much of the compensation 

described in the preceding sentence as, 

when added to the total percentages 

payable to the children, surviving 

spouse and dependent parents, will not 

exceed a total of 75 percent of the 

employee’s monthly pay. 

(g) A child, brother, sister or 

grandchild may be entitled to receive 

death benefits until death, marriage, or 

reaching age 18. Regarding entitlement 

after reaching age 18, refer to § 10.417. 

§ 10.411 What are the maximum and 

minimum rates of compensation in death 

cases? 

(a) Compensation for death may not 

exceed the employee’s pay or 75 percent 

of the basic monthly pay of the highest 

step of grade 15 of the General 

Schedule, except that compensation 

may exceed the employee’s basic 

monthly pay if such excess is created by 

authorized cost-of-living increases. 

(Basic monthly pay does not include 

locality adjustments.) However, the 

maximum limit does not apply when 

the death occurred during an 

assassination of a Federal official 

described under 18 U.S.C. 351(a) or 18 

U.S.C. 1751(a). 

(b) Compensation for death is 

computed on a minimum pay rate equal 

to the basic monthly pay of an employee 

at the first step of grade 2 of the General 

Schedule. (Basic monthly pay does not 

include locality adjustments.) 

§ 10.412 Will OWCP pay the costs of burial 

and transportation of the remains? 

In a case accepted for death benefits, 

OWCP will pay up to $800 for funeral 

and burial expenses. When an 

employee’s home is within the United 

States and the employee dies outside 

the United States, or away from home or 

the official duty station, an additional 

amount may be paid for transporting the 

remains to the employee’s home as set 

forth in 5 U.S.C. 8134. An additional 

amount of $200 is paid to the personal 

representative of the decedent for 

reimbursement of the costs of 

terminating the decedent’s status as an 

employee of the United States in 

accordance with 5 U.S.C. 8133. 

§ 10.413 May a schedule award be paid 

after an employee’s death? 

For a schedule award to be paid 

following the death of an employee, the 

employee must have filed a valid claim 

specifically for a schedule award prior 

to death; in addition, the employee must 

have died from a cause other than the 

injury before the end of the period 

specified in the schedule. The balance 

of the schedule award may be paid to 

an employee’s survivors pursuant to the 

proportions and order of precedence 

described in 5 U.S.C. 8109. 

§ 10.414 What reports of dependents are 

needed in death cases? 

If a beneficiary is receiving 

compensation benefits on account of an 

employee’s death, OWCP will ask him 

or her to complete a report once each 

year on Form CA–12. The report 

requires the beneficiary to note changes 

in marital status and dependents. If the 

beneficiary fails to submit the form (or 

an equivalent written statement) within 

30 days of the date of request, OWCP 

shall suspend compensation until the 

requested form or equivalent written 

statement is received. The suspension 

will include compensation payable for 

or on behalf of another person (for 

example, compensation payable to a 

widow on behalf of a child). When the 

form or statement is received, 

compensation will be reinstated at the 

appropriate rate retroactive to the date 

of suspension, provided the beneficiary 

is entitled to such compensation. 

§ 10.415 What must a beneficiary do if the 

number of beneficiaries decreases? 

The circumstances under which 

compensation on account of death shall 

be terminated are described in 5 U.S.C. 

8133(b). A beneficiary in a claim for 

death benefits should promptly notify 

OWCP of any event which would affect 

his or her entitlement to continued 

compensation. The terms ‘‘marriage’’ 

and ‘‘remarriage’’ include common-law 

marriage as recognized and defined by 

State law in the State where the 

beneficiary resides. If a beneficiary, or 

someone acting on his or her behalf, 

receives a check or electronic payment 

which includes payment of 

compensation for any period after the 

date when entitlement ended, he or she 

must promptly return such funds to 

OWCP. 

§ 10.416 How does a change in the number 

of beneficiaries affect the amount of 

compensation paid to the other 

beneficiaries? 

If compensation to a beneficiary is 

terminated, the amount of compensation 

payable to one or more of the remaining 

beneficiaries may be reapportioned. 

Similarly, the birth of a posthumous 

child may result in a reapportionment of 

the amount of compensation payable to 

other beneficiaries. The parent, or 

someone acting on the child’s behalf, 

shall promptly notify OWCP of the birth 

and submit a copy of the birth 

certificate. 

§ 10.417 What reports are needed when 

compensation payments continue for 

children over age 18? 

(a) Compensation payable on behalf of 

a child, brother, sister, or grandchild, 

which would otherwise end when the 

person reaches 18 years of age, shall be 

continued if and for so long as he or she 

is not married and is either a student as 

defined in 5 U.S.C. 8101(17), or 

physically or mentally incapable of selfsupport. 

(b) At least once each year, OWCP 

will ask a beneficiary receiving 

compensation based on the student 

status of a dependent to provide proof 

of continuing entitlement to such 

compensation, including certification of 

school enrollment. The beneficiary is 

required to report any changes to 

student status in the interim. 

(c) Likewise, at least once each year 

unless otherwise provided in paragraph 

(d) of this section, OWCP will ask a 

beneficiary or legal guardian receiving 

compensation based on a dependent’s 

physical or mental inability to support 

himself or herself to submit a medical 

report verifying that the dependent’s 

medical condition persists and that it 

continues to preclude self-support. If 

there is a change in that condition, the 

beneficiary or legal guardian is required 

to immediately report that change to 

OWCP. 

(d) In the case of a dependent 

incapable of self support due to that 

dependent’s physical or mental 

disability where the status of that 

dependent is unlikely to change, a 

beneficiary or legal guardian may 

establish the permanency of that 

condition by submitting a well 

rationalized medical report which 

describes that condition and the 

ongoing prognosis of that condition. If 

the permanency of that condition is 

established by such a report, OWCP will 

not seek further information regarding 

that condition; however, if there is a 

change in that condition, the beneficiary 

or legal guardian is required to 

immediately report that change to 

OWCP. 

Adjustments to Compensation 

§ 10.420 How are cost-of-living 

adjustments applied? 

(a) In cases of disability, a beneficiary 

is eligible for cost-of-living adjustments 

under 5 U.S.C. 8146a where injuryrelated disability began more than one 

year prior to the date the cost-of-living 

adjustment took effect. The employee’s 

use of continuation of pay as provided 

by 5 U.S.C. 8118, or of sick or annual 

leave, during any part of the period of 

disability does not affect the 

computation of the one-year period. 

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(b) Where an injury does not result in 

disability but compensation is payable 

for permanent impairment of a covered 

member, organ or function of the body, 

a beneficiary is eligible for cost-of-living 

adjustments under 5 U.S.C. 8146a where 

the award for such impairment began 

more than one year prior to the date the 

cost-of-living adjustment took effect. 

(c) In cases of recurrence of disability, 

where the pay rate for compensation 

purposes is the pay rate at the time 

disability recurs, a beneficiary is eligible 

for cost-of-living adjustments under 5 

U.S.C. 8146a where the effective date of 

that pay rate began more than one year 

prior to the date the cost-of-living 

adjustment took effect. 

(d) In cases of death, entitlement to 

cost-of-living adjustments under 5 

U.S.C. 8146a begins with the first such 

adjustment occurring more than one 

year after the date of death. However, if 

the death was preceded by a period of 

injury-related disability, compensation 

payable to the survivors will be 

increased by the same percentages as 

the cost-of-living adjustments paid or 

payable to the deceased employee for 

the period of disability, as well as by 

subsequent cost-of-living adjustments to 

which the survivors would otherwise be 

entitled. 

§ 10.421 May a beneficiary receive other 

kinds of payments from the Federal 

Government concurrently with 

compensation? 

(a) 5 U.S.C. 8116(a) provides that a 

beneficiary may not receive wage-loss 

compensation concurrently with a 

Federal retirement or survivor annuity. 

The beneficiary must elect the benefit 

that he or she wishes to receive, and the 

election, once made, is revocable. 

(b) An employee may receive 

compensation concurrently with 

military retired pay, retirement pay, 

retainer pay or equivalent pay for 

service in the Armed Forces or other 

uniformed services. 

(c) An employee may not receive 

compensation for total disability 

concurrently with severance pay or 

separation pay. However, an employee 

may concurrently receive compensation 

for partial disability or permanent 

impairment to a schedule member, 

organ or function with severance pay or 

separation pay. 

(d) Pursuant to 5 U.S.C. 8116(d), a 

beneficiary may receive compensation 

under the FECA for either the death or 

disability of an employee concurrently 

with benefits under title II of the Social 

Security Act on account of the age or 

death of such employee. However, this 

provision of the FECA also requires 

OWCP to reduce the amount of any such 

compensation by the amount of any 

Social Security Act benefits that are 

attributable to the Federal service of the 

employee. 

(e) To determine the employee’s 

entitlement to compensation, OWCP 

may require an employee to submit an 

affidavit or statement as to the receipt of 

any Federally funded or Federally 

assisted benefits. If an employee fails to 

submit such affidavit or statement 

within 30 days of the date of the 

request, his or her right to compensation 

shall be suspended until such time as 

the requested affidavit or statement is 

received. At that time compensation 

will be reinstated retroactive to the date 

of suspension provided the employee is 

entitled to such compensation. 

§ 10.422 May compensation payments be 

issued in a lump sum? 

(a) In exercise of the discretion 

afforded under 5 U.S.C. 8135(a), OWCP 

has determined that lump-sum 

payments will not be made to persons 

entitled to wage-loss benefits (that is, 

those payable under 5 U.S.C. 8105 and 

8106). Therefore, when OWCP receives 

requests for lump-sum payments for 

wage-loss benefits, OWCP will not 

exercise further discretion in the matter. 

This determination is based on several 

factors, including: 

(1) The purpose of the FECA, which 

is to replace lost wages; 

(2) The prudence of providing wageloss benefits on a regular, recurring 

basis; and 

(3) The high cost of the long-term 

borrowing that is needed to pay out 

large lump sums. 

(b) However, a lump-sum payment 

may be made to an employee entitled to 

a schedule award under 5 U.S.C. 8107 

where OWCP determines that such a 

payment is in the employee’s best 

interest. Lump-sum payments of 

schedule awards generally will be 

considered in the employee’s best 

interest only where the employee does 

not rely upon compensation payments 

as a substitute for lost wages (that is, the 

employee is working or is receiving 

annuity payments). An employee 

possesses no absolute right to a lumpsum payment of benefits payable under 

5 U.S.C. 8107. 

(c) Lump-sum payments to surviving 

spouses are addressed in 5 U.S.C. 

8135(b); payments to beneficiaries 

under 5 U.S.C. 8137 payable as a lump 

sum pursuant to 5 U.S.C. 8135 are 

addressed in part 25 of this title. 

§ 10.423 May compensation payments be 

assigned to, or attached by, creditors? 

(a) As a general rule, compensation 

and claims for compensation are exempt 

from the claims of private creditors. 

Further, any attempt by a FECA 

beneficiary to assign his or her claim is 

null and void. However, pursuant to 

provisions of the Social Security Act, 42 

U.S.C. 659, and regulations issued by 

the Office of Personnel Management 

(OPM) at 5 CFR part 581, FECA benefits, 

including survivor’s benefits, may be 

garnished to collect overdue alimony 

and child support payments. 

(b) Garnishment for child support and 

alimony may be requested by providing 

a copy of the State agency or court order 

to the district office handling the FECA 

claim. 

§ 10.424 May someone other than the 

beneficiary be designated to receive 

compensation payments? 

A beneficiary may be incapable of 

managing or directing the management 

of his or her benefits because of a 

mental or physical disability, or because 

of legal incompetence, or because he or 

she is under 18 years of age. In this 

situation, absent the appointment of a 

guardian or other party to manage the 

financial affairs of the claimant by a 

court or administrative body authorized 

to do so, OWCP in its sole discretion 

may approve a person to serve as the 

representative payee for funds due the 

beneficiary. Where a guardian or other 

party has been appointed by a court or 

administrative body authorized to do so 

to manage the financial affairs of the 

claimant, OWCP will recognize that 

individual as the representative payee. 

§ 10.425 May compensation be claimed for 

periods of restorable leave? 

The employee may claim 

compensation for periods of annual and 

sick leave which are restorable in 

accordance with the rules of the 

employing agency. Forms CA–7a and 

CA–7b are used for this purpose. Leave 

donated to an employee by an 

employing agency leave bank is not 

restorable leave. 

Overpayments 

§ 10.430 How does OWCP notify an 

individual of a payment made? 

(a) In addition to providing narrative 

descriptions to recipients of benefits 

paid or payable, OWCP includes on 

each periodic check a clear indication of 

the period for which payment is being 

made. A form is sent to the recipient 

with each supplemental check which 

states the date and amount of the 

payment and the period for which 

payment is being made. For payments 

sent by electronic funds transfer (EFT), 

a notification of the date and amount of 

payment appears on the statement from 

the recipient’s financial institution. 

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(b) By these means, OWCP puts the 

recipient on notice that a payment was 

made and the amount of the payment. 

If the amount received differs from the 

amount indicated on the written notice 

or bank statement, the recipient is 

responsible for notifying OWCP of the 

difference. Absent affirmative evidence 

to the contrary, the beneficiary will be 

presumed to have received the notice of 

payment, whether mailed or transmitted 

electronically. For EFT payments, 

OWCP is entitled to presume receipt 

and acceptance of that payment once a 

recipient has had an opportunity to 

receive a statement from their financial 

institution. 

§ 10.431 What does OWCP do when an 

overpayment is identified? 

Before seeking to recover an 

overpayment or adjust benefits, OWCP 

will advise the beneficiary in writing 

that: 

(a) The overpayment exists, and the 

amount of overpayment; 

(b) A preliminary finding shows 

either that the individual was or was not 

at fault in the creation of the 

overpayment; 

(c) He or she has the right to inspect 

and copy Government records relating 

to the overpayment; and 

(d) He or she has the right to present 

evidence which challenges the fact or 

amount of the overpayment, and/or 

challenges the preliminary finding that 

he or she was at fault in the creation of 

the overpayment. He or she may also 

request that recovery of the 

overpayment be waived. 

§ 10.432 How can an individual present 

evidence to OWCP in response to a 

preliminary notice of an overpayment? 

The individual may present this 

evidence to OWCP in writing or at a prerecoupment hearing. The evidence must 

be presented or the hearing requested 

within 30 days of the date of the written 

notice of overpayment. Failure to 

request the hearing within this 30-day 

time period shall constitute a waiver of 

that right. 

§ 10.433 Under what circumstances can 

OWCP waive recovery of an overpayment? 

(a) OWCP may consider waiving an 

overpayment only if the individual to 

whom it was made was not at fault in 

accepting or creating the overpayment. 

Each recipient of compensation benefits 

is responsible for taking all reasonable 

measures to ensure that payments he or 

she receives from OWCP are proper. The 

recipient must show good faith and 

exercise a high degree of care in regard 

to receipt of their benefits. Such care 

includes reporting events which may 

affect entitlement to or the amount of 

benefits, including reviewing their 

accounts and related statements 

(including electronic statements and 

records from their financial institutions 

involving EFT payments). A recipient 

who has done any of the following will 

be found to be at fault with respect to 

creating an overpayment: 

(1) Made an incorrect statement as to 

a material fact which he or she knew or 

should have known to be incorrect; or 

(2) Failed to provide information 

which he or she knew or should have 

known to be material; or 

(3) Accepted a payment which the 

recipient knew or should have known to 

be incorrect. (This provision applies 

only to the overpaid individual.) 

(b) Whether or not OWCP determines 

that an individual was at fault with 

respect to the creation of an 

overpayment depends on the 

circumstances surrounding the 

overpayment. The degree of care 

expected may vary with the complexity 

of those circumstances and the 

individual’s capacity to realize that he 

or she is being overpaid. 

§ 10.434 If OWCP finds that the recipient of 

an overpayment was not at fault, what 

criteria are used to decide whether to waive 

recovery of it? 

If OWCP finds that the recipient of an 

overpayment was not at fault, 

repayment will still be required unless: 

(a) Adjustment or recovery of the 

overpayment would defeat the purpose 

of the FECA (see § 10.436), or 

(b) Adjustment or recovery of the 

overpayment would be against equity 

and good conscience (see § 10.437). 

§ 10.435 Is an individual responsible for an 

overpayment that resulted from an error 

made by OWCP or another Government 

agency? 

(a) The fact that OWCP may have 

erred in making the overpayment, or 

that the overpayment may have resulted 

from an error by another Government 

agency, does not by itself relieve the 

individual who received the 

overpayment from liability for 

repayment if the individual also was at 

fault in accepting the overpayment. 

(b) However, OWCP may find that the 

individual was not at fault if failure to 

report an event affecting compensation 

benefits, or acceptance of an incorrect 

payment, occurred because: 

(1) The individual relied on 

misinformation given in writing by 

OWCP (or by another Government 

agency which he or she had reason to 

believe was connected with the 

administration of benefits) as to the 

interpretation of a pertinent provision of 

the FECA or its regulations; or 

(2) OWCP erred in calculating cost-ofliving increases, schedule award length 

and/or percentage of impairment, or loss 

of wage-earning capacity. 

§ 10.436 Under what circumstances would 

recovery of an overpayment defeat the 

purpose of the FECA? 

Recovery of an overpayment will 

defeat the purpose of the FECA if such 

recovery would cause hardship to a 

currently or formerly entitled 

beneficiary because: 

(a) The beneficiary from whom OWCP 

seeks recovery needs substantially all of 

his or her current income (including 

compensation benefits) to meet current 

ordinary and necessary living expenses; 

and 

(b) The beneficiary’s assets do not 

exceed a specified amount as 

determined by OWCP from data 

furnished by the Bureau of Labor 

Statistics. A higher amount is specified 

for a beneficiary with one or more 

dependents. 

§ 10.437 Under what circumstances would 

recovery of an overpayment be against 

equity and good conscience? 

(a) Recovery of an overpayment is 

considered to be against equity and 

good conscience when any individual 

who received an overpayment would 

experience severe financial hardship in 

attempting to repay the debt. 

(b) Recovery of an overpayment is 

also considered to be against equity and 

good conscience when any individual, 

in reliance on such payments or on 

notice that such payments would be 

made, gives up a valuable right or 

changes his or her position for the 

worse. In making such a decision, 

OWCP does not consider the 

individual’s current ability to repay the 

overpayment. 

(1) To establish that a valuable right 

has been relinquished, it must be shown 

that the right was in fact valuable, that 

it cannot be regained, and that the 

action was based chiefly or solely in 

reliance on the payments or on the 

notice of payment. Donations to 

charitable causes or gratuitous transfers 

of funds to other individuals are not 

considered relinquishments of valuable 

rights. 

(2) To establish that an individual’s 

position has changed for the worse, it 

must be shown that the decision made 

would not otherwise have been made 

but for the receipt of benefits, and that 

this decision resulted in a loss. 

§ 10.438 Can OWCP require the individual 

who received the overpayment to submit 

additional financial information? 

(a) The individual who received the 

overpayment is responsible for 

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providing information about income, 

expenses and assets as specified by 

OWCP. This information is needed to 

determine whether or not recovery of an 

overpayment would defeat the purpose 

of the FECA, or be against equity and 

good conscience. This information will 

also be used to determine the repayment 

schedule, if necessary. 

(b) Failure to submit the requested 

information within 30 days of the 

request shall result in denial of waiver, 

and no further request for waiver shall 

be considered until the requested 

information is furnished. 

§ 10.439 What is addressed at a prerecoupment hearing? 

At a pre-recoupment hearing, the 

OWCP representative will consider all 

issues in the claim on which a formal 

decision has been issued. Such a 

hearing will thus fulfill OWCP’s 

obligation to provide pre-recoupment 

rights and a hearing under 5 U.S.C. 

8124(b). Pre-recoupment hearings shall 

be conducted in exactly the same 

manner as provided in § 10.615 through 

§ 10.622. 

§ 10.440 How does OWCP communicate 

its final decision concerning recovery of an 

overpayment, and what appeal right 

accompanies it? 

(a) OWCP will send a copy of the final 

decision to the individual from whom 

recovery is sought; his or her 

representative, if any; and the 

employing agency. 

(b) The only review of a final decision 

concerning an overpayment is to the 

Employees’ Compensation Appeals 

Board. The provisions of 5 U.S.C. 

8124(b) (concerning hearings) and 5 

U.S.C. 8128(a) (concerning 

reconsiderations) do not apply to such 

a decision. The pendency of an appeal 

with ECAB has no effect on the finality 

of the order being appealed; in the event 

ECAB reverses the final overpayment 

decision, any monies collected will be 

restored to the beneficiary. 

§ 10.441 How are overpayments collected? 

(a) When an overpayment has been 

made to an individual who is entitled to 

further payments, the individual shall 

refund to OWCP the amount of the 

overpayment as soon as the error is 

discovered or his or her attention is 

called to same. If no refund is made, 

OWCP shall decrease later payments of 

compensation, taking into account the 

probable extent of future payments, the 

rate of compensation, the financial 

circumstances of the individual, and 

any other relevant factors, so as to 

minimize any hardship. Should the 

individual die before collection has 

been completed, collection shall be 

made by decreasing later payments, if 

any, payable under the FECA with 

respect to the individual’s death. If no 

further benefits are payable with respect 

to the individual’s death, OWCP may 

also file a claim with the estate of the 

individual or seek repayment of the 

overpayment through other means 

including referral of the debt to the 

Treasury Department. 

(b) When an overpayment has been 

made to an individual who is not 

entitled to further payments, the 

individual shall refund to OWCP the 

amount of the overpayment as soon as 

the error is discovered or his or her 

attention is called to same. The 

overpayment is subject to the provisions 

of the Federal Claims Collection Act of 

1966 (as amended) and may be reported 

to the Internal Revenue Service as 

income. If the individual fails to make 

such refund, OWCP may recover the 

same through any available means, 

including offset of salary, annuity 

benefits, or other Federal payments, 

including tax refunds as authorized by 

the Tax Refund Offset Program, or 

referral of the debt to a collection 

agency or to the Department of Justice. 

Subpart F—Continuing Benefits 

Rules and Evidence 

§ 10.500 What are the basic rules 

governing continuing receipt of 

compensation benefits and return to work? 

(a) Benefits are available only while 

the effects of a work-related condition 

continue. Compensation for wage loss 

due to disability is available only for 

any periods during which an 

employee’s work-related medical 

condition prevents him or her from 

earning the wages earned before the 

work-related injury. For example, an 

employee is not entitled to 

compensation for any wage-loss claimed 

on a CA–7 to the extent that evidence 

contemporaneous with the period 

claimed on a CA–7 establishes that an 

employee had medical work restrictions 

in place; that light duty within those 

work restrictions was available; and that 

the employee was previously notified in 

writing that such duty was available. 

Similarly, an employee receiving 

continuing periodic payments for 

disability was not prevented from 

earning the wages earned before the 

work-related injury if the evidence 

establishes that the employing agency 

had offered, in accordance with OWCP 

procedures, a temporary light duty 

assignment within the employee’s work 

restrictions. (The penalty provision of 5 

U.S.C. 8106(c)(2) will not be imposed on 

such assignments under this paragraph.) 

(b) Each disabled employee is 

obligated to perform such work as he or 

she can. OWCP’s goal is to return each 

disabled employee to work as soon as he 

or she is medically able. In determining 

what work qualifies under 5 U.S.C. 8115 

for determining the wage-earning 

capacity for a particular disabled 

employee, OWCP considers all relevant 

factors, including the employee’s 

current physical limitations, whether 

the work is available within the 

employee’s demonstrated commuting 

area and the employee’s qualifications 

to perform such work. 

(c) A disabled employee who refuses 

to seek or accept suitable employment 

within the meaning of 5 U.S.C. 

8106(c)(2) is not entitled to 

compensation. 

(d) Payment of medical benefits is 

available for all treatment necessary due 

to a work-related medical condition. 

§ 10.501 What medical evidence is 

necessary to support continuing receipt of 

compensation benefits? 

(a) The employee is responsible for 

providing sufficient medical evidence to 

justify payment of any compensation 

sought. 

(1) To support payment of continuing 

compensation where an employee has 

been found entitled to periodic benefits, 

narrative medical evidence must be 

submitted whenever OWCP requests it 

but ordinarily not less than once a year 

and with any filing of a form CA–1032. 

It must contain a physician’s 

rationalized opinion as to whether the 

specific period of alleged disability is 

causally related to the employee’s 

accepted injury or illness. 

(2) For those employees with more 

serious conditions not likely to improve 

and for employees over the age of 65, 

OWCP may require less frequent 

documentation, but ordinarily not less 

than once every three years. 

(3) The physician’s opinion must be 

based on the facts of the case and the 

complete medical background of the 

employee, must be one of reasonable 

medical certainty and must include 

objective findings in support of its 

conclusions. Subjective complaints of 

pain are not sufficient, in and of 

themselves, to support payment of 

continuing compensation. Likewise, 

medical limitations based solely on the 

fear of a possible future injury are also 

not sufficient to support payment of 

continuing compensation. See § 10.330 

for a fuller discussion of medical 

evidence. 

(b) OWCP may require any kind of 

non-invasive testing to determine the 

employee’s functional capacity. Failure 

to undergo such testing will result in a 

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suspension of benefits. In addition, 

OWCP may direct the employee to 

undergo a second opinion or referee 

examination in any case it deems 

appropriate (see §§ 10.320 and 10.321). 

§ 10.502 How does OWCP evaluate 

evidence in support of continuing receipt of 

compensation benefits? 

In considering the medical and factual 

evidence, OWCP will weigh the 

probative value of the attending 

physician’s report, any second opinion 

physician’s report, any other medical 

reports, or any other evidence in the 

file. If OWCP determines that the 

medical evidence supporting one 

conclusion is more consistent, logical, 

and well-reasoned than evidence 

supporting a contrary conclusion, 

OWCP will use the conclusion that is 

supported by the weight of the medical 

evidence as the basis for awarding or 

denying further benefits. If medical 

reports that are equally well-reasoned 

support inconsistent determinations of 

an issue under consideration, OWCP 

will direct the employee to undergo a 

third, impartial referee examination to 

resolve the issue, which will be given 

special weight in determining the issue. 

§ 10.503 Under what circumstances may 

OWCP reduce or terminate compensation 

benefits? 

Once OWCP has advised the 

employee that it has accepted a claim 

and has either approved continuation of 

pay or paid medical benefits or 

compensation, benefits will not be 

terminated or reduced unless the weight 

of the evidence establishes that: 

(a) The disability for which 

compensation was paid has ceased; 

(b) The disabling condition is no 

longer causally related to the 

employment; 

(c) The employee is only partially 

disabled; 

(d) The employee has returned to 

work; 

(e) The beneficiary was convicted of 

fraud in connection with a claim under 

the FECA, or the beneficiary was 

incarcerated based on any felony 

conviction; or 

(f) OWCP’s initial decision was in 

error. 

Return to Work—Employer’s 

Responsibilities 

§ 10.505 What actions must the employer 

take? 

Upon authorizing medical care, the 

employer should advise the employee in 

writing as soon as possible of his or her 

obligation to return to work under 

§ 10.210 and as defined in this subpart. 

The term ‘‘return to work’’ as used in 

this subpart is not limited to returning 

to work at the employee’s normal 

worksite or usual position, but may 

include returning to work at other 

locations and in other positions. In 

general, the employer should make all 

reasonable efforts to place the employee 

in his or her former or an equivalent 

position, in accordance with 5 U.S.C. 

8151(b)(2), if the employee has fully 

recovered after one year. The Office of 

Personnel Management (not OWCP) 

administers this provision. 

(a) Where the employer has specific 

alternative positions available for 

partially disabled employees, the 

employer should advise the employee in 

writing of the specific duties and 

physical requirements of those 

positions. 

(b) Where the employer has no 

specific alternative positions available 

for an employee who can perform 

restricted or limited duties, the 

employer should advise the employee of 

any accommodations the agency can 

make to accommodate the employee’s 

limitations due to the injury. 

§ 10.506 May the employer monitor the 

employee’s medical care? 

The employer may monitor the 

employee’s medical progress and duty 

status by obtaining periodic medical 

reports. Form CA–17 is usually 

adequate for this purpose. To aid in 

returning an injured employee to 

suitable employment, the employer may 

also contact the employee’s physician in 

writing concerning the work limitations 

imposed by the effects of the injury and 

possible job assignments. (However, the 

employer shall not contact the 

physician by telephone or through 

personal visit.) When such contact is 

made, the employer shall send a copy of 

any such correspondence to OWCP and 

the employee, as well as a copy of the 

physician’s response when received. 

The employer may also contact the 

employee at reasonable intervals to 

request periodic medical reports 

addressing his or her ability to return to 

work. 

§ 10.507 How should the employer make 

an offer of suitable work? 

Where the attending physician or 

OWCP notifies the employer in writing 

that the employee is partially disabled 

(that is, the employee can perform some 

work but not return to the position held 

at date of injury), the employer should 

act as follows: 

(a) If the employee can perform in a 

specific alternative position available in 

the agency, and the employer has 

advised the employee in writing of the 

specific duties and physical 

requirements, the employer shall notify 

the employee in writing immediately of 

the date of availability. 

(b) If the employee can perform 

restricted or limited duties, the 

employer should determine whether 

such duties are available or whether an 

existing job can be modified. If so, the 

employer shall advise the employee in 

writing of the duties, their physical 

requirements and availability. 

(c) The employer must make any job 

offer in writing. However, the employer 

may make a job offer verbally as long as 

it provides the job offer to the employee 

in writing within two business days of 

the verbal job offer. 

(d) The offer must include a 

description of the duties of the position, 

the physical requirements of those 

duties, and the date by which the 

employee is either to return to work or 

notify the employer of his or her 

decision to accept or refuse the job offer. 

The employer must send a complete 

copy of any job offer to OWCP when it 

is sent to the employee. 

§ 10.508 May relocation expenses be paid 

for an employee who would need to move 

to accept an offer of reemployment? 

If possible, the employer should offer 

suitable reemployment in the location 

where the employee currently resides. If 

this is not practical, the employer may 

offer suitable reemployment at the 

employee’s former duty station or other 

location. Where the distance between 

the location of the offered job and the 

location where the employee currently 

resides is at least 50 miles, OWCP may 

pay such relocation expenses as are 

considered reasonable and necessary if 

the employee has been terminated from 

the agency’s employment rolls and 

would incur relocation expenses by 

accepting the offered reemployment. 

OWCP may also pay such relocation 

expenses when the new employer is 

other than a Federal employer. OWCP 

will notify the employee that relocation 

expenses are payable if it makes a 

finding that the job is suitable. To 

determine whether a relocation expense 

is reasonable and necessary, OWCP 

shall use as a guide the Federal travel 

regulations for permanent changes of 

duty station. 

§ 10.509 If an employee’s light duty job is 

eliminated due to downsizing, what is the 

effect on compensation? 

In general, an employee will not be 

considered to have experienced a 

compensable recurrence of disability as 

defined in § 10.5(x) merely because his 

or her employer has eliminated the 

employee’s light-duty position in a 

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downsizing. When this occurs, OWCP 

will determine the employee’s wageearning capacity based on his or her 

actual earnings in such light-duty 

position if this determination is 

appropriate on the basis that such 

earnings fairly and reasonably represent 

the employee’s wage-earning capacity 

and such a determination has not 

already been made and the employing 

agency has stated, in writing, that no 

other employment is available. 

§ 10.510 When may a light duty job form 

the basis of a loss of wage-earning capacity 

determination? 

A light-duty position that fairly and 

reasonably represents an employee’s 

ability to earn wages may form the basis 

of a loss of wage-earning capacity 

determination if that light duty position 

is a classified position to which the 

injured employee has been formally 

reassigned. The position must conform 

to the established physical limitations of 

the injured employee; the employer 

must have a written position description 

outlining the duties and physical 

requirements; and the position must 

correlate to the type of appointment 

held by the injured employee at the time 

of injury. If these circumstances are 

present, a determination may be made 

that the position constitutes ‘‘regular’’ 

Federal employment. In the absence of 

a ‘‘light-duty position’’ as described in 

this paragraph, OWCP will assume that 

the employee was instead engaged in 

non-competitive, makeshift or odd lot 

employment which does not represent 

the employee’s wage-earning capacity, 

i.e., work of the type provided to injured 

employees who cannot otherwise be 

employed by the Federal Government or 

in any well-known branch of the general 

labor market. 

§ 10.511 How may a loss of wage-earning 

capacity determination be modified? 

If OWCP issues a formal loss of wageearning capacity determination, 

including a finding of no loss of wageearning capacity, that determination and 

rate of compensation, if applicable, 

remains in place until that 

determination is modified by OWCP. 

Modification of such a determination is 

only warranted where the party seeking 

the modification establishes either that 

there is a material change in the nature 

and extent of the injury-related 

condition, the employee has been 

retrained or otherwise vocationally 

rehabilitated, or the original 

determination was erroneous. However, 

OWCP is not precluded from 

adjudicating a limited period of 

disability following the issuance of a 

loss of wage-earning capacity decision, 

such as where an employee has a 

demonstrated need for surgery. 

Return to Work—Employee’s 

Responsibilities 

§ 10.515 What actions must the employee 

take with respect to returning to work? 

(a) If an employee can resume regular 

Federal employment, he or she must do 

so. No further compensation for wage 

loss is payable once the employee has 

recovered from the work-related injury 

to the extent that he or she can perform 

the duties of the position held at the 

time of injury, or earn equivalent wages. 

(b) If an employee cannot return to the 

job held at the time of injury due to 

partial disability from the effects of the 

work-related injury, but has recovered 

enough to perform some type of work, 

he or she must seek work. In the 

alternative, the employee must accept 

suitable work offered to him or her. This 

work may be with the original employer 

or through job placement efforts made 

by or on behalf of OWCP. 

(c) If the employer has advised an 

employee in writing that specific 

alternative positions exist within the 

agency, the employee shall provide the 

description and physical requirements 

of such alternate positions to the 

attending physician and ask whether 

and when he or she will be able to 

perform such duties. 

(d) If the employer has advised an 

employee that it is willing to 

accommodate his or her work 

limitations, the employee shall so 

advise the attending physician and ask 

him or her to specify the limitations 

imposed by the injury. The employee is 

responsible for advising the employer 

immediately of these limitations. 

(e) From time to time, OWCP may 

require the employee to report his or her 

efforts to obtain suitable employment, 

whether with the Federal Government, 

State and local Governments, or in the 

private sector. 

§ 10.516 How will an employee know if 

OWCP considers a job to be suitable? 

OWCP shall advise the employee that 

it has found the offered work to be 

suitable and afford the employee 30 

days to accept the job or present any 

reasons to counter OWCP’s finding of 

suitability. If the employee presents 

such reasons, and OWCP determines 

that the reasons are unacceptable, it will 

notify the employee of that 

determination and that he or she has 15 

days in which to accept the offered 

work without penalty. At that point in 

time, OWCP’s notification need not state 

the reasons for finding that the 

employee’s reasons are not acceptable. 

§ 10.517 What are the penalties for 

refusing to accept a suitable job offer? 

(a) 5 U.S.C. 8106(c) provides that a 

partially disabled employee who refuses 

to seek suitable work, or refuses to or 

neglects to work after suitable work is 

offered to or arranged for him or her, is 

not entitled to compensation. An 

employee who refuses or neglects to 

work after suitable work has been 

offered or secured for him or her has the 

burden to show that this refusal or 

failure to work was reasonable or 

justified. 

(b) After providing the two notices 

described in § 10.516, OWCP will 

terminate the employee’s entitlement to 

further compensation under 5 U.S.C. 

8105, 8106, and 8107 on all claims 

where the injury occurred prior to the 

termination decision, as provided by 5 

U.S.C. 8106(c)(2). However, the 

employee remains entitled to medical 

benefits as provided by 5 U.S.C. 8103. 

§ 10.518 Does OWCP provide services to 

help employees return to work? 

OWCP may, in its discretion, provide 

vocational rehabilitation services as 

authorized by 5 U.S.C. 8104. Vocational 

rehabilitation services may include 

vocational evaluation, testing, training, 

and placement services with either the 

original employer or a new employer, 

when the injured employee cannot 

return to the job held at the time of 

injury. These services also include 

functional capacity evaluations, which 

help to tailor individual rehabilitation 

programs to employees’ physical 

reconditioning and behavioral 

modification needs, and help employees 

to meet the demands of current or 

potential jobs. 

§ 10.519 What action will OWCP take if an 

employee refuses to undergo vocational 

rehabilitation? 

Under 5 U.S.C. 8104(a), OWCP may 

direct a permanently disabled employee 

to undergo vocational rehabilitation. To 

ensure that vocational rehabilitation 

services are available to all who might 

be entitled to benefit from them, an 

injured employee who has a loss of 

wage-earning capacity shall be 

presumed to be ‘‘permanently 

disabled,’’ for purposes of this section 

only, unless and until the employee 

proves that the disability is not 

permanent. If an employee without good 

cause fails or refuses to apply for, 

undergo, participate in, or continue to 

participate in a vocational rehabilitation 

effort when so directed, OWCP will act 

as follows: 

(a) Where a suitable job has been 

identified, OWCP will reduce the 

employee’s future monetary 

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compensation based on the amount 

which would likely have been his or her 

wage-earning capacity had he or she 

undergone vocational rehabilitation. 

OWCP will determine this amount in 

accordance with the job identified 

through the vocational rehabilitation 

planning process, which includes 

meetings with the OWCP nurse and the 

employer. The reduction will remain in 

effect until such time as the employee 

acts in good faith to comply with the 

direction of OWCP. 

(b) Where a suitable job has not been 

identified, because the failure or refusal 

occurred in the early but necessary 

stages of a vocational rehabilitation 

effort (that is, interviews, testing, 

counseling, functional capacity 

evaluations, and work evaluations), 

OWCP cannot determine what would 

have been the employee’s wage-earning 

capacity. 

(c) Under the circumstances identified 

in paragraph (b) of this section, in the 

absence of evidence to the contrary, 

OWCP will assume that the vocational 

rehabilitation effort would have resulted 

in a return to work with no loss of wageearning capacity, and OWCP will reduce 

the employee’s monetary compensation 

accordingly (that is, to zero). This 

reduction will remain in effect until 

such time as the employee acts in good 

faith to comply with the direction of 

OWCP. 

§ 10.520 How does OWCP determine 

compensation after an employee completes 

a vocational rehabilitation program? 

After completion of a vocational 

rehabilitation program, OWCP may 

adjust compensation to reflect the 

injured worker’s wage-earning capacity. 

Actual earnings will be used if they 

fairly and reasonably reflect the earning 

capacity. The position determined to be 

the goal of a training plan is assumed to 

represent the employee’s earning 

capacity if it is suitable and performed 

in sufficient numbers so as to be 

reasonably available, whether or not the 

employee is placed in such a position. 

§ 10.521 If an employee elects to receive 

retirement benefits instead of FECA 

benefits, what effect may such an election 

have on that employee’s entitlement to 

FECA compensation? 

Where an employee is undergoing 

vocational rehabilitation, or where 

OWCP is attempting to otherwise place 

that employee in a suitable job, and that 

employee elects to receive retirement 

benefits from the Office of Personnel 

Management instead of benefits under 

the FECA, the OWCP may proceed with 

a loss of wage-earning capacity 

determination which may reduce FECA 

entitlement as long as the determination 

is based on the evidence of record at the 

time of such election. 

Reports of Earnings From Employment 

and Self-Employment 

§ 10.525 What information must the 

employee report? 

(a) An employee who is receiving 

compensation for partial or total 

disability must advise OWCP 

immediately of any return to work, 

either part-time or full-time. An 

employee must report all outside 

employment, including any concurrent 

dissimilar employment held at the time 

of injury, even if the injury did not 

result in any lost time in that position. 

In addition, an employee who is 

receiving compensation for partial or 

total disability will periodically be 

required to submit a report of earnings 

from employment or self-employment, 

either part-time or full-time. (See 

§ 10.5(g) for a definition of ‘‘earnings.’’) 

(b) The employee must report even 

those earnings which do not seem likely 

to affect his or her level of benefits. 

Many kinds of income, though not all, 

will result in reduction of compensation 

benefits. While earning income will not 

necessarily result in a reduction of 

compensation, failure to report income 

may result in forfeiture of all benefits 

paid during the reporting period. 

§ 10.526 Must the employee report 

volunteer activities? 

An employee who is receiving 

compensation for partial or total 

disability is periodically required to 

report volunteer activity or any other 

kind of activity which shows that the 

employee is no longer totally disabled 

for work. The fact that the employee did 

not receive any salary for this work is 

not a basis for failing to report this 

activity; instead the employee must 

report the cost if any to have someone 

else do the work or activity. 

§ 10.527 Does OWCP verify reports of 

earnings? 

To make proper determinations of an 

employee’s entitlement to benefits, 

OWCP may verify the earnings reported 

by the employee through a variety of 

means, including but not limited to 

computer matches with the Office of 

Personnel Management and inquiries to 

the Social Security Administration. 

Also, OWCP may perform computer 

matches with records of State agencies, 

including but not limited to workers’ 

compensation administrations, to 

determine whether private employers 

are paying workers’ compensation 

insurance premiums for recipients of 

benefits under the FECA. 

§ 10.528 What action will OWCP take if the 

employee fails to file a report of activity 

indicating an ability to work? 

OWCP periodically requires each 

employee who is receiving 

compensation benefits to complete an 

affidavit as to any work, or activity 

indicating an ability to work, which the 

employee has performed for the prior 15 

months. If an employee who is required 

to file such a report fails to do so within 

30 days of the date of the request, his 

or her right to compensation for wage 

loss under 5 U.S.C. 8105 or 8106 is 

suspended until OWCP receives the 

requested report. At that time, OWCP 

will reinstate compensation retroactive 

to the date of suspension if the 

employee remains entitled to 

compensation. 

§ 10.529 What action will OWCP take if the 

employee files an incomplete report? 

(a) If an employee knowingly omits or 

understates any earnings or work 

activity in making a report, he or she 

shall forfeit the right to compensation 

with respect to any period for which the 

report was required. A false or evasive 

statement, omission, concealment, or 

misrepresentation with respect to 

employment activity or earnings in a 

report may also subject an employee to 

criminal prosecution. 

(b) Where the right to compensation is 

forfeited, OWCP shall recover any 

compensation already paid for the 

period of forfeiture pursuant to 5 U.S.C. 

8129 and other relevant statutes. 

Reports of Dependents 

§ 10.535 How are dependents defined, and 

what information must the employee 

report? 

(a) Dependents in disability cases are 

defined in § 10.405. While the employee 

has one or more dependents, the 

employee’s basic compensation for wage 

loss or for permanent impairment shall 

be augmented as provided in 5 U.S.C. 

8110. (The rules for death claims are 

found in § 10.414.) 

(b) An employee who is receiving 

augmented compensation on account of 

dependents must advise OWCP 

immediately of any change in the 

number or status of dependents. The 

employee should also promptly refund 

to OWCP any amounts received on 

account of augmented compensation 

after the right to receive augmented 

compensation has ceased. Any 

difference between actual entitlement 

and the amount already paid beyond the 

date entitlement ended is an 

overpayment of compensation and may 

be recovered pursuant to 5 U.S.C. 8129 

and other relevant statutes. 

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(c) An employee who is receiving 

augmented compensation shall be 

periodically required to submit a 

statement as to any dependents, or to 

submit supporting documents such as 

birth or marriage certificates or court 

orders, to determine if he or she is still 

entitled to augmented compensation. 

§ 10.536 What is the penalty for failing to 

submit a report of dependents? 

If an employee fails to submit a 

requested statement or supporting 

document within 30 days of the date of 

the request, OWCP will suspend his or 

her right to augmented compensation 

until OWCP receives the requested 

statement or supporting document. At 

that time, OWCP will reinstate 

augmented compensation retroactive to 

the date of suspension, provided that 

the employee is entitled to receive 

augmented compensation. 

§ 10.537 What reports are needed when 

compensation payments continue for 

children over age 18? 

(a) Compensation payable on behalf of 

a child that would otherwise end when 

the child reaches 18 years of age will 

continue if and for so long as he or she 

is not married and is either a student as 

defined in 5 U.S.C. 8101(17), or 

physically or mentally incapable of selfsupport. 

(b) At least once each year, OWCP 

will ask an employee who receives 

compensation based on the student 

status of a child to provide proof of 

continuing entitlement to such 

compensation, including certification of 

school enrollment. The employee is 

required to report any changes to 

student status in the interim as soon as 

they occur. 

(c) Likewise, at least once each year, 

OWCP will ask an employee who 

receives compensation based on a 

child’s physical or mental inability to 

support himself or herself, and who is 

not covered by § 10.417(d) of this part, 

to submit a medical report verifying that 

the child’s medical condition persists 

and that it continues to preclude selfsupport. The employee is required to 

report any changes to that status in the 

interim. 

(d) If an employee fails to submit 

proof within 30 days of the date of the 

request, OWCP will suspend the 

employee’s right to compensation until 

the requested information is received. 

At that time OWCP will reinstate 

compensation retroactive to the date of 

suspension, provided the employee is 

entitled to such compensation. 

Reduction and Termination of 

Compensation 

§ 10.540 When and how is compensation 

reduced or terminated? 

(a) Except as provided in paragraphs 

(c), (d), and (e) of this section, where the 

evidence establishes that compensation 

should be either reduced or terminated, 

OWCP will provide the beneficiary with 

written notice of the proposed action 

and give him or her 30 days to submit 

relevant evidence or argument to 

support entitlement to continued 

payment of compensation. 

(b) Notice provided under this section 

will include a description of the reasons 

for the proposed action and a copy of 

the specific evidence upon which 

OWCP is basing its determination. 

Payment of compensation will continue 

until any evidence or argument 

submitted has been reviewed and an 

appropriate decision has been issued, or 

until 30 days have elapsed if no 

additional evidence or argument is 

submitted. 

(c) OWCP will not provide such 

written notice when the beneficiary has 

no reasonable basis to expect that 

payment of compensation will continue. 

For example, when a claim has been 

made for a specific period of time and 

that specific period expires, no written 

notice will be given. 

(d) Written notice will also not be 

given when a beneficiary dies, when 

OWCP either reduces or terminates 

compensation upon an employee’s 

return to work, when OWCP terminates 

only medical benefits after a physician 

indicates that further medical treatment 

is not necessary or has ended, or when 

OWCP denies payment for a particular 

medical expense. 

(e) OWCP will also not provide such 

written notice when compensation is 

terminated, suspended or forfeited due 

to one of the following: A beneficiary’s 

conviction for fraud in connection with 

a claim under the FECA; a beneficiary’s 

incarceration based on any felony 

conviction; an employee’s failure to 

report earnings from employment or 

self-employment; an employee’s failure 

or refusal to either continue performing 

suitable work or to accept an offer of 

suitable work; or an employee’s refusal 

to undergo or obstruction of a directed 

medical examination or treatment for 

substance abuse. 

§ 10.541 What action will OWCP take after 

issuing written notice of its intention to 

reduce or terminate compensation? 

(a) If the beneficiary submits evidence 

or argument prior to the issuance of the 

decision, OWCP will evaluate it in light 

of the proposed action and undertake 

such further development as it may 

deem appropriate, if any. Evidence or 

argument which is repetitious, 

cumulative, or irrelevant will not 

require any further development. If the 

beneficiary does not respond within 30 

days of the written notice, OWCP will 

issue a decision consistent with its prior 

notice. OWCP will not grant any request 

for an extension of this 30-day period. 

(b) Evidence or argument which 

refutes the evidence upon which the 

proposed action was based will result in 

the continued payment of 

compensation. If the beneficiary submits 

evidence or argument which fails to 

refute the evidence upon which the 

proposed action was based but which 

requires further development, OWCP 

will not provide the beneficiary with 

another notice of its proposed action 

upon completion of such development. 

Once any further development of the 

evidence is completed, OWCP will 

either continue payment or issue a 

decision consistent with its prior notice. 

Subpart G—Appeals Process 

§ 10.600 How can final decisions of OWCP 

be reviewed? 

There are three methods for reviewing 

a formal decision of the OWCP 

(§§ 10.125 through 10.127 discuss how 

decisions are made). These methods are: 

reconsideration by the district office; a 

hearing before an OWCP hearing 

representative; and appeal to the 

Employees’ Compensation Appeals 

Board (ECAB). For each method there 

are time limitations and other 

restrictions which may apply, and not 

all options are available for all 

decisions, so the employee should 

consult the requirements set forth 

below. Further rules governing appeals 

to the ECAB are found at part 501 of this 

title. 

Reconsiderations and Reviews by the 

Director 

§ 10.605 What is reconsideration? 

The FECA provides that the Director 

may review an award for or against 

compensation upon application by an 

employee (or his or her representative) 

who receives an adverse decision. The 

employee shall exercise this right 

through a request to the district office. 

The request, along with the supporting 

statements and evidence, is called the 

‘‘application for reconsideration.’’ 

§ 10.606 How does a claimant request 

reconsideration? 

(a) An employee (or representative) 

seeking reconsideration should send the 

application for reconsideration to the 

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address as instructed by OWCP in the 

final decision. 

(b) The application for 

reconsideration, including all 

supporting documents, must: 

(1) Be submitted in writing; 

(2) Be signed and dated by the 

claimant or the authorized 

representative; and 

(3) Set forth arguments and contain 

evidence that either: 

(i) Shows that OWCP erroneously 

applied or interpreted a specific point of 

law; 

(ii) Advances a relevant legal 

argument not previously considered by 

OWCP; or 

(iii) Constitutes relevant and pertinent 

new evidence not previously considered 

by OWCP. 

§ 10.607 What is the time limit for 

requesting reconsideration? 

(a) An application for reconsideration 

must be received by OWCP within one 

year of the date of the OWCP decision 

for which review is sought. 

(b) OWCP will consider an untimely 

application for reconsideration only if 

the application demonstrates clear 

evidence of error on the part of OWCP 

in its most recent merit decision. The 

application must establish, on its face, 

that such decision was erroneous. 

(c) The year in which a claimant has 

to timely request reconsideration shall 

not include any period subsequent to an 

OWCP decision for which the claimant 

can establish through probative medical 

evidence that he or she is unable to 

communicate in any way and that his or 

her testimony is necessary in order to 

obtain modification of the decision. 

§ 10.608 How does OWCP decide whether 

to grant or deny the request for 

reconsideration? 

(a) A timely request for 

reconsideration may be granted if 

OWCP determines that the employee 

has presented evidence and/or argument 

that meets at least one of the standards 

described in § 10.606(b)(3). If 

reconsideration is granted, the case is 

reopened and the case is reviewed on its 

merits (see § 10.609). 

(b) Where the request is timely but 

fails to meet at least one of the standards 

described in § 10.606(b)(3), or where the 

request is untimely and fails to present 

any clear evidence of error, OWCP will 

deny the application for reconsideration 

without reopening the case for a review 

on the merits. A decision denying an 

application for reconsideration cannot 

be the subject of another application for 

reconsideration. The only review for 

this type of non-merit decision is an 

appeal to the ECAB (see § 10.625), and 

OWCP will not entertain a request for 

reconsideration or a hearing on this 

decision denying reconsideration. 

§ 10.609 How does OWCP decide whether 

new evidence requires modification of the 

prior decision? 

When application for reconsideration 

is granted, OWCP will review the 

decision for which reconsideration is 

sought on the merits and determine 

whether the new evidence or argument 

requires modification of the prior 

decision. 

(a) After OWCP decides to grant 

reconsideration, but before undertaking 

the review, OWCP will send a copy of 

the reconsideration application to the 

employer, which will have 20 days from 

the date sent to comment or submit 

relevant documents. OWCP will provide 

any such comments to the employee, 

who will have 20 days from the date the 

comments are sent to him or her within 

which to comment. If no comments are 

received from the employer, OWCP will 

proceed with the merit review of the 

case. Where a reconsideration request 

pertains only to a medical issue (such as 

disability or a schedule award) not 

requiring comment from the employing 

agency, the employing agency will be 

notified that a request for 

reconsideration has been received, but 

OWCP is not required to wait 20 days 

for comment before reaching a 

determination, except when that 

claimant is deployed in an area of 

armed conflict. 

(b) A claims examiner who did not 

participate in making the contested 

decision will conduct the merit review 

of the claim. When all evidence has 

been reviewed, OWCP will issue a new 

merit decision, based on all the 

evidence in the record. A copy of the 

decision will be provided to the agency. 

(c) An employee dissatisfied with this 

new merit decision may again request 

reconsideration under this subpart or 

appeal to the ECAB. An employee may 

not request a hearing on this decision. 

§ 10.610 What is a review by the Director? 

The FECA specifies that an award for 

or against payment of compensation 

may be reviewed at any time on the 

Director’s own motion. Such review 

may be made without regard to whether 

there is new evidence or information. If 

the Director determines that a review of 

the award is warranted (including, but 

not limited to circumstances indicating 

a mistake of fact or law or changed 

conditions), the Director (at any time 

and on the basis of existing evidence) 

may modify, rescind, decrease or 

increase compensation previously 

awarded, or award compensation 

previously denied. A review on the 

Director’s own motion is not subject to 

a request or petition and none shall be 

entertained. 

(a) The decision whether or not to 

review an award under this section is 

solely within the discretion of the 

Director. The Director’s exercise of this 

discretion is not subject to review by the 

ECAB, nor can it be the subject of a 

reconsideration or hearing request. 

(b) Where the Director reviews an 

award on his or her own motion, any 

resulting decision is subject as 

appropriate to reconsideration, a 

hearing and/or appeal to the ECAB. 

Jurisdiction on review or on appeal to 

ECAB is limited to a review of the 

merits of the resulting decision. The 

Director’s determination to review the 

award is not reviewable. 

Hearings 

§ 10.615 What is a hearing? 

A hearing is a review of an adverse 

decision by a hearing representative. 

Initially, the claimant can choose 

between two formats: An oral hearing or 

a review of the written record. At the 

discretion of the hearing representative, 

an oral hearing may be conducted by 

telephone, teleconference, 

videoconference or other electronic 

means. In addition to the evidence of 

record, the employee may submit new 

evidence to the hearing representative. 

§ 10.616 How does a claimant obtain a 

hearing? 

(a) A claimant, injured on or after July 

4, 1966, who has received a final 

adverse decision by the district office 

may obtain a hearing by writing to the 

address specified in the decision. The 

hearing request must be sent within 30 

days (as determined by postmark or 

other carrier’s date marking) of the date 

of the decision for which a hearing is 

sought. The claimant must not have 

previously submitted a reconsideration 

request (whether or not it was granted) 

on the same decision. 

(b) OWCP will schedule an oral 

hearing and determine whether the oral 

hearing will be conducted in person, 

including whether the in person hearing 

will be by teleconference, 

videoconference or other electronic 

means. The claimant can request a 

change in the format from a hearing to 

a review of the written record by making 

a written request to the Branch of 

Hearings and Review. OWCP will grant 

a request received by the Branch of 

Hearings and Review within 30 days of: 

the date OWCP acknowledges the initial 

hearing request, or the date OWCP 

issues a notice setting a date for an oral 

hearing, in cases where the initial 

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request was for, or was treated as a 

request for, an oral hearing. A request 

received after those dates will be subject 

to OWCP’s discretion. The decision to 

grant or deny a change of format from 

a hearing to a review of the written 

record is not reviewable. 

§ 10.617 How is an oral hearing 

conducted? 

(a) The hearing representative retains 

complete discretion to set the time, 

place and method of the hearing, 

including the amount of time allotted 

for the hearing, considering the issues to 

be resolved. Any requests for reasonable 

accommodation by individuals with 

disabilities should be made through the 

procedure described in the initial 

acknowledgement letter. 

(b) Unless otherwise directed in 

writing by the claimant, the hearing 

representative will mail a notice of the 

time, place and method of the oral 

hearing to the claimant and any 

representative at least 30 days before the 

scheduled date. The employer will also 

be mailed a notice at least 30 days 

before the scheduled date. 

(c) The hearing is an informal process, 

and the hearing representative is not 

bound by common law or statutory rules 

of evidence, by technical or formal rules 

of procedure or by section 5 of the 

Administrative Procedure Act, but the 

hearing representative may conduct the 

hearing in such manner as to best 

ascertain the rights of the claimant. 

During the hearing process, the claimant 

may state his or her arguments and 

present new written evidence in support 

of the claim. Hearings are limited to one 

hour; this limitation may be extended in 

the discretion of the hearing 

representative. 

(d) Testimony at oral hearings, 

including those conducted by 

teleconference, videoconference or other 

electronic means, is recorded, then 

transcribed and placed in the record. 

Oral testimony shall be made under 

oath. The transcript of the hearing is the 

official record of the hearing. 

(e) OWCP will furnish a transcript of 

the oral hearing to the claimant and the 

employer, who have 20 days from the 

date it is sent to comment. The 

employer shall send any comments to 

OWCP and the claimant, who will have 

20 more days from the date of the 

agency’s certificate of service to 

comment. 

(f) The hearing remains open for the 

submittal of additional evidence until 

30 days after the hearing is held, unless 

the hearing representative, in his or her 

sole discretion, grants an extension. 

Only one such extension may be 

granted. A copy of the decision will be 

mailed to the claimant’s last known 

address, to any representative, and to 

the employer. 

(g) The hearing representative 

determines the conduct of the oral 

hearing and may terminate the hearing 

at any time he or she determines that all 

relevant evidence has been obtained, or 

because of misbehavior on the part of 

the claimant and/or representative. 

(h) Pursuant to 5 U.S.C. 8126, if an 

individual disobeys or resists a lawful 

order or process in proceedings under 

this part, or misbehaves during a 

hearing or in a manner so as to obstruct 

the hearing, OWCP may certify the facts 

to the appropriate U.S. District Court, 

which may, if the evidence warrants, 

punish the individual in the same 

manner and to the same extent as for a 

contempt committed before the court, or 

commit the individual on the same 

conditions as if the forbidden act had 

occurred with reference to the process 

of or in the presence of the court. 

§ 10.618 How is a review of the written 

record conducted? 

(a) The hearing representative will 

review the official record and any 

additional evidence submitted by the 

claimant and by the agency. The hearing 

representative may also conduct 

whatever investigation is deemed 

necessary. New evidence and arguments 

are to be submitted at any time up to the 

time specified by OWCP, but they 

should be submitted as soon as possible 

to avoid delaying the hearing process. 

(b) The claimant should submit, with 

his or her application for review, all 

evidence or argument that he or she 

wants to present to the hearing 

representative. If the claimant chooses 

to change the request from an oral 

hearing to a review of the written 

record, the claimant should submit all 

evidence or argument at that time. A 

copy of all pertinent material will be 

sent to the employer, which will have 

20 days from the date it is sent to 

comment. (Medical evidence is not 

considered ‘‘pertinent’’ for review and 

comment by the agency, and it will 

therefore not be furnished to the agency. 

OWCP has sole responsibility for 

evaluating medical evidence.) The 

employer shall send any comments to 

OWCP and the claimant, who will have 

20 more days from the date of the 

agency’s certificate of service to 

comment. 

§ 10.619 May subpoenas be issued for 

witnesses and documents? 

A claimant may request a subpoena, 

but the decision to grant or deny such 

a request is within the discretion of the 

hearing representative. The hearing 

representative may issue subpoenas for 

the attendance and testimony of 

witnesses, and for the production of 

books, records, correspondence, papers 

or other relevant documents. Subpoenas 

are issued for documents only if they 

are relevant and cannot be obtained by 

other means, and for witnesses only 

where oral testimony is the best way to 

ascertain the facts. 

(a) A claimant may request a 

subpoena only as part of the hearings 

process, and no subpoena will be issued 

under any other part of the claims 

process. To request a subpoena, the 

requestor must: 

(1) Submit the request in writing and 

send it to the hearing representative as 

early as possible but no later than 60 

days (as evidenced by postmark, 

electronic marker or other objective date 

mark) after the date of the original 

hearing request. 

(2) Explain in the original request for 

a subpoena why the testimony or 

evidence is directly relevant to the 

issues at hand, and a subpoena is the 

best method or opportunity to obtain 

such evidence because there are no 

other means by which the documents or 

testimony could have been obtained. 

(b) No subpoena will be issued for 

attendance of employees of OWCP 

acting in their official capacities as 

decision-makers or policy 

administrators. For hearings taking the 

form of a review of the written record, 

no subpoena for the appearance of 

witnesses will be considered. 

(c) The hearing representative issues 

the subpoena under his or her own 

name. It may be served in person or by 

certified mail, return receipt requested 

(or equivalent service from a 

commercial carrier), addressed to the 

person to be served at his or her last 

known principal place of business or 

residence. A decision to deny a 

subpoena can only be appealed as part 

of an appeal of any adverse decision 

which results from the hearing. 

§ 10.620 Who pays the costs associated 

with subpoenas? 

(a) Witnesses who are not employees 

or former employees of the Federal 

Government shall be paid the same fees 

and mileage as paid for like services in 

the District Court of the United States 

where the subpoena is returnable, 

except that expert witnesses shall be 

paid a fee not to exceed the local 

customary fee for such services. 

(b) Where OWCP asked that the 

witness submit evidence into the case 

record or asked that the witness attend, 

OWCP shall pay the fees and mileage. 

Where the claimant requested the 

subpoena, and where the witness 

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submitted evidence into the record at 

the request of the claimant, the claimant 

shall pay the fees and mileage. 

§ 10.621 What is the employer’s role when 

an oral hearing has been requested? 

(a) The employer may send one (or 

more, if deemed appropriate by the 

hearing representative) representative(s) 

to observe the proceeding, but the 

agency representative cannot give 

testimony or argument or otherwise 

participate in the hearing, except where 

the claimant or the hearing 

representative specifically asks the 

agency representative to testify. 

(b) The hearing representative may 

deny a request by the claimant that the 

agency representative testify where the 

claimant cannot show that the 

testimony would be relevant or where 

the agency representative does not have 

the appropriate level of knowledge to 

provide such evidence at the hearing. 

The employer may also comment on the 

hearing transcript, as described in 

§ 10.617(e). 

§ 10.622 May a claimant or representative 

withdraw a request for or postpone a 

hearing? 

(a) The claimant and/or representative 

may withdraw the hearing request at 

any time up to and including the day 

the hearing is held, or the decision 

issued. Withdrawing the hearing request 

means the record is returned to the 

jurisdiction of the district office and no 

further requests for a hearing on the 

underlying decision will be considered. 

(b) OWCP will entertain any 

reasonable request for scheduling the 

oral hearing, including whether to 

participate by teleconference, 

videoconference or other electronic 

means, but such requests should be 

made at the time of the original 

application for hearing. Scheduling 

(including format) is at the sole 

discretion of the hearing representative, 

and is not reviewable. 

(c) Once the oral hearing is scheduled 

and OWCP has mailed appropriate 

written notice to the claimant and 

representative, OWCP will, upon 

submission of proper written 

documentation of unavoidable serious 

scheduling conflicts (such as courtordered appearances/trials, jury duty or 

previously scheduled outpatient 

procedures), entertain requests from a 

claimant or his representative for 

rescheduling as long as the hearing can 

be rescheduled on the same monthly 

docket, generally no more than 7 days 

after the originally scheduled time. 

When a request to postpone a scheduled 

hearing under this subsection cannot be 

accommodated on the docket, no further 

opportunity for an oral hearing will be 

provided. Instead, the hearing will take 

the form of a review of the written 

record and a decision issued 

accordingly. 

(d) Where the claimant or 

representative is hospitalized for a nonelective reason or where the death of the 

claimant’s or representative’s parent, 

spouse, child or other immediate family 

prevents attendance at the hearing, 

OWCP will, upon submission of proper 

documentation, grant a postponement 

beyond one monthly docket. 

(e) Decisions regarding rescheduling 

under paragraphs (b) through (d) of this 

section are within the sole discretion of 

the hearing representative and are not 

reviewable. 

(f) A claimant who fails to appear at 

a scheduled hearing may request in 

writing within 10 days after the date set 

for the hearing that another hearing be 

scheduled. Where good cause for failure 

to appear is shown, another hearing will 

be scheduled and conducted by 

teleconference. The failure of the 

claimant to request another hearing 

within 10 days, or the failure of the 

claimant to appear at the second 

scheduled hearing without good cause 

shown, shall constitute abandonment of 

the request for a hearing. Where good 

cause is shown for failure to appear at 

the second scheduled hearing, review of 

the matter will proceed as a review of 

the written record. 

Review by the Employees’ 

Compensation Appeals Board (ECAB) 

§ 10.625 What kinds of decisions may be 

appealed? 

Only final decisions of OWCP may be 

appealed to the ECAB. However, certain 

types of final decisions, described in 

this part as not subject to further review, 

cannot be appealed to the ECAB. 

Decisions that are not appealable to the 

ECAB include: Decisions concerning the 

amounts payable for medical services, 

decisions concerning exclusion and 

reinstatement of medical providers, 

decisions by the Director to review an 

award on his or her own motion, and 

denials of subpoenas independent of the 

appeal of the underlying decision. In 

appeals before the ECAB, attorneys from 

the Office of the Solicitor of Labor shall 

represent OWCP. 

§ 10.626 Who has jurisdiction of cases on 

appeal to the ECAB? 

While a case is on appeal to the 

ECAB, OWCP has no jurisdiction over 

the claim with respect to issues which 

directly relate to the issue or issues on 

appeal. The OWCP continues to 

administer the claim and retains 

jurisdiction over issues unrelated to the 

issue or issues on appeal and issues 

which arise after the appeal as a result 

of ongoing administration of the case. 

Such issues would include, for example, 

the ability to terminate benefits where 

an individual returns to work while an 

appeal is pending at the ECAB. ECAB’s 

rules of procedure are found at part 501 

of this title. 

Subpart H—Special Provisions 

Representation 

§ 10.700 May a claimant designate a 

representative? 

(a) The claims process under the 

FECA is informal. Unlike many workers’ 

compensation laws, the employer is not 

a party to the claim, and OWCP acts as 

an impartial evaluator of the evidence. 

Nevertheless, a claimant may appoint 

one individual to represent his or her 

interests, but the appointment must be 

in writing. 

(b) There can be only one 

representative at any one time, so after 

one representative has been properly 

appointed, OWCP will not recognize 

another individual as representative 

until the claimant withdraws the 

authorization of the first individual. In 

addition, OWCP will recognize only 

certain types of individuals (see 

§ 10.701); however if the representative 

is an attorney, OWCP may communicate 

with any member of that attorney’s 

recognized law firm. 

(c) A properly appointed 

representative who is recognized by 

OWCP may make a request or give 

direction to OWCP regarding the claims 

process, including a hearing. This 

authority includes presenting or 

eliciting evidence, making arguments on 

facts or the law, and obtaining 

information from the case file, to the 

same extent as the claimant. 

§ 10.701 Who may serve as a 

representative? 

A claimant may authorize any 

individual to represent him or her in 

regard to a claim under the FECA, 

unless that individual’s service as a 

representative would violate any 

applicable provision of law (such as 18 

U.S.C. 205 and 208). A Federal 

employee may act as a representative 

only: 

(a) On behalf of immediate family 

members, defined as a spouse, children, 

parents, and siblings of the 

representative, provided no fee or 

gratuity is charged; or 

(b) While acting as a union 

representative, defined as any officially 

sanctioned union official, and no fee or 

gratuity is charged. 

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37932 Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 

§ 10.702 How are fees for services paid? 

(a) A representative may charge the 

claimant a fee and other costs associated 

with the representation before OWCP. 

The claimant is solely responsible for 

paying the fee and other charges. The 

claimant will not be reimbursed by 

OWCP, nor is OWCP in any way liable 

for the amount of the fee. Contingency 

fees are not allowed in any form. 

(b) Administrative costs (mailing, 

copying, messenger services, travel and 

the like, but not including secretarial 

services, paralegal and other activities) 

need not be approved before the 

representative collects them. Before any 

fee for services can be collected, 

however, the fee must be approved by 

the Secretary. 

§ 10.703 How are fee applications 

approved? 

(a) Fee application. The 

representative must submit the fee 

application to OWCP for services 

rendered before OWCP. (Representative 

services before ECAB must be approved 

by ECAB under 20 CFR part 501.) The 

application submitted to OWCP shall 

contain the following: 

(1) An itemized statement showing 

the representative’s hourly rate, the 

number of hours worked and 

specifically identifying the work 

performed and a total amount charged 

for the representation (excluding 

administrative costs). 

(2) A statement of agreement or 

disagreement with the amount charged, 

signed by the claimant. The statement 

must also acknowledge that the 

claimant is aware that he or she must 

pay the fees and that OWCP is not 

responsible for paying the fee or other 

costs. 

(b) Approval where there is no 

dispute. Where a fee application that 

describes the services rendered in 

accordance with paragraph (a)(1) of this 

section is accompanied by a signed 

statement indicating the claimant’s 

agreement with the fee as described in 

paragraph (a)(2) of this section, the 

application is deemed approved except 

that no contingency fee arrangement 

may be considered deemed approved 

through this process. 

(c) Disputed requests. (1) Where the 

claimant disagrees with the amount of 

the fee, as indicated in the statement 

accompanying the submittal, OWCP 

will evaluate the objection and decide 

whether or not to approve the request. 

OWCP will provide a copy of the 

request to the claimant and ask him or 

her to submit any further information in 

support of the objection within 15 days 

from the date the request is forwarded. 

After that period has passed, OWCP will 

evaluate the information received to 

determine whether the amount of the 

fee is substantially in excess of the value 

of services received by looking at the 

following factors: 

(i) Usefulness of the representative’s 

services; 

(ii) The nature and complexity of the 

claim; 

(iii) The actual time spent on 

development and presentation of the 

claim; and 

(iv) Customary local charges for 

services for a representative of similar 

background and experience. 

(2) Where the claimant disputes the 

representative’s request and files an 

objection with OWCP, an appealable 

decision will be issued. 

§ 10.704 What penalties apply to 

representatives who collect a fee without 

approval? 

Representatives who collect a fee 

without proper approval from OWCP 

may be charged with a misdemeanor 

under 18 U.S.C. 292. 

Third Party Liability 

§ 10.705 When must an employee or other 

FECA beneficiary take action against a third 

party? 

(a) If an injury or death for which 

benefits are payable under the FECA is 

caused, wholly or partially, by someone 

other than a Federal employee acting 

within the scope of his or her 

employment, the claimant can be 

required to take action against that third 

party. 

(b) The Office of the Solicitor of Labor 

(SOL) is hereby delegated authority to 

administer the subrogation aspects of 

certain FECA claims for OWCP. Either 

OWCP or SOL can require a FECA 

beneficiary to assign his or her claim for 

damages to the United States or to 

prosecute the claim in his or her own 

name. All information regarding 

subrogation claims administered by SOL 

should be submitted to Chief, 

Subrogation Unit, U.S. Department of 

Labor, Office of the Solicitor, 200 

Constitution Avenue, NW., Room 

S4325, Washington, DC 20210. 

§ 10.706 How will a beneficiary know if 

OWCP or SOL has determined that action 

against a third party is required? 

When OWCP determines that an 

employee or other FECA beneficiary 

must take action against a third party, it 

will notify the employee or beneficiary 

in writing. If the case is transferred to 

SOL, a second notification may be 

issued. 

§ 10.707 What must a FECA beneficiary 

who is required to take action against a 

third party do to satisfy the requirement 

that the claim be ‘‘prosecuted’’? 

At a minimum, a FECA beneficiary 

must do the following: 

(a) Seek damages for the injury or 

death from the third party, either 

through an attorney or on his or her own 

behalf; 

(b) Either initiate a lawsuit within the 

appropriate statute of limitations period 

or obtain a written release of this 

obligation from OWCP or SOL unless 

recovery is possible through a 

negotiated settlement prior to filing suit; 

(c) Refuse to settle or dismiss the case 

for any amount less than the amount 

necessary to repay OWCP’s refundable 

disbursements, as defined in § 10.714, 

without receiving permission from 

OWCP or SOL; 

(d) Provide periodic status updates 

and other relevant information in 

response to requests from OWCP or 

SOL; 

(e) Submit detailed information about 

the amount recovered and the costs of 

the suit on a ‘‘Statement of Recovery’’ 

form approved by OMB; 

(f) Submit information regarding the 

names of all plaintiffs to the suit or 

settlement and their relationship to the 

injured employee, if not the same as the 

FECA beneficiary; 

(g) If any portion of the settlement or 

judgment was paid to more than one 

individual, advise whether it was 

indicated in the settlement or judgment 

the amount each individual is to 

receive, and if so, the percentage of the 

total award; 

(h) Advise whether any portion of the 

settlement or judgment was paid in 

more than one capacity, such as a joint 

payment to a husband and wife for 

personal injury and loss of consortium 

or a payment to a spouse representing 

both loss of consortium and wrongful 

death; and 

(i) Pay any required refund. 

§ 10.708 Can a FECA beneficiary who 

refuses to comply with a request to assign 

a claim to the United States or to prosecute 

the claim in his or her own name be 

penalized? 

When a FECA beneficiary refuses a 

request to either assign a claim or 

prosecute a claim in his or her own 

name, OWCP may determine that he or 

she has forfeited his or her right to all 

past or future compensation for the 

injury with respect to which the request 

is made. Alternatively, OWCP may also 

suspend the FECA beneficiary’s 

compensation payments until he or she 

complies with the request. 

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Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 37933 

§ 10.709 What happens if a beneficiary 

directed by OWCP or SOL to take action 

against a third party does not believe that 

a claim can be successfully prosecuted at 

a reasonable cost? 

If a beneficiary consults an attorney 

and is informed that a suit for damages 

against a third party for the injury or 

death for which benefits are payable is 

unlikely to prevail or that the costs of 

such a suit are not justified by the 

potential recovery, he or she should 

request that OWCP or SOL release him 

or her from the obligation to proceed. 

This request should be in writing and 

provide evidence of the attorney’s 

opinion. If OWCP or SOL agrees, the 

beneficiary will not be required to take 

further action against the third party. 

§ 10.710 Under what circumstances must a 

recovery of money or other property in 

connection with an injury or death for which 

benefits are payable under the FECA be 

reported to OWCP or SOL? 

Any person who has filed a FECA 

claim that has been accepted by OWCP 

(whether or not compensation has been 

paid), or who has received FECA 

benefits in connection with a claim filed 

by another, is required to notify OWCP 

or SOL of the receipt of money or other 

property as a result of a settlement or 

judgment in connection with the 

circumstances of that claim. This 

includes an injured employee, and in 

the case of a claim involving the death 

of an employee, a spouse, children or 

other dependents entitled to receive 

survivor’s benefits. OWCP or SOL 

should be notified in writing within 30 

days of the receipt of such money or 

other property or the acceptance of the 

FECA claim, whichever occurs later. 

§ 10.711 How is the amount of the 

recovery of the FECA beneficiary 

determined? 

(a) When a FECA beneficiary is 

entitled to receive money as a result of 

a judgment entered in a lawsuit or 

settlement of a lawsuit or any other 

settlement or recovery from a 

responsible third party, the entire 

amount of the award is reported as the 

gross recovery. To determine the 

amount of the recovery of the FECA 

beneficiary, deductions are made for the 

portion representing damage to real or 

personal property, the portion 

representing loss of consortium, the 

portion representing wrongful death and 

the portion representing a survival 

action. To make deductions for loss of 

consortium, wrongful death and 

survival action, it must be established 

that: 

(1) These claims were asserted in the 

suit (or if there was no suit that these 

claims were included in the settlement 

or recovery); and 

(2) That such claims are permissible 

under the state law where the action 

was brought. 

(b) OWCP or SOL will determine the 

appropriate percentage of the total 

judgment or settlement that will be 

allocated for loss of consortium, 

wrongful death action and survival 

action. FECA beneficiaries may accept 

OWCP’s or SOL’s determination or 

demonstrate good cause in writing for a 

different allocation. Whether to accept a 

specific allocation is at the discretion of 

OWCP or SOL, even where it has been 

incorporated into the settlement 

agreement. OWCP or SOL will not 

determine the appropriate percentage to 

be allocated for loss of consortium, 

wrongful death action and survival 

action if a judge or jury specifies the 

percentage to be awarded of a contested 

verdict attributable to each of several 

plaintiffs; in such case, OWCP or SOL 

will accept that percentage allocation. 

(c) The amount of the recovery of the 

FECA beneficiary will be determined as 

followed: 

(1) If a settlement or judgment is paid 

to or for one individual, the recovery is 

the gross recovery less the portion 

representing damage to real or personal 

property. The portion representing 

damage to real or personal property 

must be established in writing and 

approved by OWCP or SOL. 

(2) In any case involving an injury to 

an employee where a judgment or 

settlement is paid to or on behalf of 

more than one individual, the recovery 

is the gross recovery less the portion 

representing damage to real or personal 

property and less the portion 

representing loss of consortium. OWCP 

or SOL will allocate up to 25% for a 

spouse and up to 5% for each child not 

to exceed 15% for all children for loss 

of consortium. 

(3) In any case involving the death of 

an employee, where both wrongful 

death and survival actions have been 

asserted, separate statements of recovery 

are completed for the deceased 

employee and the surviving FECA 

beneficiaries. For the deceased 

employee, the recovery is the gross 

recovery less the portion representing 

damage to real or personal property, less 

the portion representing loss of 

consortium, less the portion 

representing the wrongful death action. 

For the surviving spouse and children, 

the recovery is the gross recovery less 

the portion representing damage to real 

or personal property, less the portion 

representing loss of consortium, less the 

portion representing the survival action. 

OWCP or SOL will allocate the total 

judgment or settlement as follows: 

(i) For loss of consortium, OWCP or 

SOL will allocate up to 15% for a 

spouse and up to 5% for each child not 

to exceed 10% for all children; 

(ii) For the wrongful death action, 

OWCP or SOL will allocate 65% of the 

remainder after subtraction of the 

amounts attributed to loss of 

consortium; 

(iii) For the survival action, OWCP or 

SOL will allocate 35% percent of the 

remainder after subtraction of the 

amounts attributed to loss of 

consortium. 

(d) In any case involving an injury to 

an employee where a judgment or 

settlement is paid to or on behalf of 

more than one individual and in any 

case involving the death of an 

employee, court costs will be attributed 

using the same percentages as was used 

for loss of consortium, wrongful death 

action and survival action. Attorney fees 

will be determined using the same 

percentage that was used for the gross 

recovery. These calculations are used 

only for the purpose of determining the 

amount of the refund and if applicable 

the surplus. 

§ 10.712 How much of any settlement or 

judgment must be paid to the United 

States? 

The statute permits a FECA 

beneficiary to retain, as a minimum, 

one-fifth of the net amount of money or 

property remaining after a reasonable 

attorney’s fee and the costs of litigation 

have been deducted from the third-party 

recovery. The United States shares in 

the attorney fees by allowing the 

beneficiary to retain, at the time of 

distribution, an amount equivalent to a 

reasonable attorney’s fee proportionate 

to the refund due the United States. 

After the refund owed to the United 

States is calculated, the FECA 

beneficiary retains any surplus 

remaining, and this amount is credited, 

dollar for dollar, against future 

compensation including wage-loss 

compensation, schedule award benefits 

and medical benefits for the same 

injury, as defined in § 10.719. OWCP 

will resume the payment of 

compensation only after the FECA 

beneficiary has been awarded 

compensation which exceeds the 

amount of the surplus. 

(a) The refund to the United States is 

calculated as follows, using the 

Statement of Recovery form approved 

by OMB: 

(1) Determine the amount of the 

recovery of the FECA beneficiary as set 

forth in § 10.711 as follows: 

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37934 Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 

(i) Set out the gross recovery which is 

the entire amount of the award; 

(ii) Subtract the amount of award 

representing damage to real or personal 

property approved by OWCP or SOL 

(Subtotal A); 

(iii) Multiply Subtotal A by the 

appropriate percentage in § 10.711(c), or 

if it is a contested verdict by the 

percentage allocated by the judge or 

jury, and subtract this amount from 

Subtotal A (Subtotal B); 

(iv) If both a wrongful death action 

and survival action have been asserted, 

multiply Subtotal B by 65% to 

determine the amount allocated to the 

wrongful death case and multiply 

Subtotal B by 35% to determine the 

amount allocated to the survival action, 

or if it is a contested verdict, by the 

percentage allocated by the judge or 

jury. Separate Statements of Recovery 

must be completed for each cause of 

action. For the wrongful death action 

use the result of Subtotal B times 65% 

for Subtotal C and for the survival 

action use the result of Subtotal B times 

35% for Subtotal C. If both a wrongful 

death and survival have not been 

asserted the amount in Subtotal B is 

used for Subtotal C; 

(v) Subtotal C is the amount of 

recovery of the FECA beneficiary; 

(2) Subtract the amount of attorney’s 

fees actually paid, but not more than the 

maximum amount of attorney’s fees 

considered by OWCP or SOL to be 

reasonable, from Subtotal C. This is 

calculated by first determining the 

attorney fee percentage which is 

determined by dividing the gross 

recovery into the amount of attorney’s 

fees actually paid, but the attorney’s fee 

amount must not be more than the 

maximum amount of attorney’s fees 

considered to be reasonable by OWCP or 

SOL and must be approved by OWCP or 

SOL. Subtotal C is multiplied by the fee 

percentage and this amount is 

subtracted from Subtotal C (Subtotal D); 

(3) Subtract the costs of litigation, as 

allowed by OWCP or SOL from Subtotal 

D (Subtotal E). If loss of consortium 

and/or wrongful death and survival 

actions are claimed, the costs of 

litigation are reduced first by the 

percentage used for loss of consortium 

and then by the percentage used for 

wrongful death or survival action as set 

forth in § 10.711; 

(4) Multiply Subtotal E by 20% and 

subtract this amount from Subtotal E 

(Subtotal F); 

(5) Compare Subtotal F and the 

refundable disbursements as defined in 

§ 10.714. Subtotal G is the lower of the 

two amounts; 

(6) Multiply Subtotal G by the 

percentage used for attorney’s fees in 

paragraph (a)(2), to determine the 

Government’s allowance for attorney’s 

fees, and subtract this amount from 

Subtotal G. This is the amount of the 

refund. 

(b) The credit against future benefits 

(also referred to as the surplus) is 

calculated as follows: 

(1) If Subtotal F, as calculated 

according to paragraph (a)(4) of this 

section, is less than the refundable 

disbursements, as defined in § 10.714, 

there is no credit to be applied against 

future benefits (but the remainder of the 

unused disbursements must be applied 

to any future recovery for the same 

injury); 

(2) If Subtotal F is greater than the 

refundable disbursements, the credit 

against future benefits (or surplus) 

amount is determined by subtracting the 

refundable disbursements from Subtotal 

F. 

(c) Examples of how these 

calculations are made follows: 

(1) In this example, a Federal 

employee sues another party for causing 

injuries for which the employee has 

received $22,000 in benefits under the 

FECA, subject to refund. The suit is 

settled and the injured employee 

receives $100,000, all of which was for 

his injury. The injured worker paid 

attorney’s fees of $25,000 and costs for 

the litigation of $3,000. 

(i) Gross Recovery ............................................................................................................................................................................... $100,000.00 

(ii) Amount of Property Damage ........................................................................................................................................................ $0.00 

(iii) Subtotal A (Line a minus Line b) ............................................................................................................................................... $100,000.00 

(iv) Amount Allocated for Loss of Consortium 0% of Line c ......................................................................................................... $0.00 

(v) Subtotal B (Line c minus Line d) ................................................................................................................................................. $100,000.00 

(vi) Amount Allocated for Wrongful Death 0% of Line e ............................................................................................................... $0.00 

(vii) Amount Allocated for Survival Action 0% of Line e .............................................................................................................. $0.00 

(viii) Subtotal C—If Wrongful Death use Line f, if survival action use Line g, otherwise use Subtotal B .................................. $100,000.00 

(ix) Attorney’s Fees 25% (Line h × .25) ............................................................................................................................................ $25,000.00 

(x) Subtotal D (Line h minus Line i) ................................................................................................................................................. $75,000.00 

(xi) Court costs .................................................................................................................................................................................... $3,000.00 

(xii) Subtotal E (Line j minus Line k) ............................................................................................................................................... $72,000.00 

(xiii) One-fifth of Subtotal E (Line l × .20) ....................................................................................................................................... $14,400.00 

(xiv) Subtotal F (Line l minus Line m) ............................................................................................................................................. $57,600.00 

(xv) Refundable Disbursements ......................................................................................................................................................... $22,000.00 

(xvi) Subtotal G (lower of Subtotal F or refundable disbursements) .............................................................................................. $22,000.00 

(xvii) Government’s allowance for attorney’s fees (attorney’s fees percentage used to determine Subtotal D multiplied by 

Subtotal G) ....................................................................................................................................................................................... $5,500.00 

(xviii) Refund to the United States (Line p minus Line q) .............................................................................................................. $16,500.00 

(xix) Credit against future benefits (If Subtotal F greater than refundable disbursements, Line n minus Line o) ...................... $35,600.00 

(2) In this example, a Federal 

employee who is married sues another 

party for causing injuries as a result of 

car accident where she was driving her 

personally owned vehicle on approved 

travel and the employee received 

$75,000 in disbursements. The suit 

includes a claim for loss of consortium 

which is permitted under the state law 

and for damage to her vehicle 

(documented at $50,000.00). A joint 

settlement is reached where the injured 

employee and her spouse receive 

$250,000 for all their claims. Attorney’s 

fees were $83,325 and there were 

$25,000 in approved court costs. 

(i) Gross Recovery ............................................................................................................................................................................... $250,000.00 

(ii) Amount of Property Damage ........................................................................................................................................................ $50,000.00 

(iii) Subtotal A (Line a minus Line b) ............................................................................................................................................... $200,000.00 

(iv) Amount Allocated for Loss of Consortium (25% of Line c) ..................................................................................................... $50,000.00 

(v) Subtotal B (Line c minus Line d) ................................................................................................................................................. $150,000.00 

(vi) Amount Allocated for Wrongful Death 0% of Line e ............................................................................................................... $0.00 

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Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 37935 

(vii) Amount Allocated for Survival Action 0% of Line e .............................................................................................................. $0.00 

(viii) Subtotal C—If Wrongful Death Use Line f, if survival action use Line g, otherwise use Subtotal B .................................. $150,000.00 

(ix) Attorney’s Fees 33.33% (line h × .3333) .................................................................................................................................... $49,995.00 

(x) Subtotal D (Line h minus Line i) ................................................................................................................................................. $100,005.00 

(xi) Court costs are reduced by the amount allocated for the loss of consortium (in this example, $25,000 ¥ ($25,000 × 

.25)) .................................................................................................................................................................................................. $18,750.00 

(xii) Subtotal E (line j minus Line k) ................................................................................................................................................ $81,255.00 

(xiii) One-fifth of Subtotal E (Line l × .20) ....................................................................................................................................... $16,251.00 

(xiv) Subtotal F (Line l minus Line m) ............................................................................................................................................. $65,004.00 

(xv) Refundable Disbursements ......................................................................................................................................................... $75,000.00 

(xvi) Subtotal G (lower of Subtotal F or refundable disbursements) .............................................................................................. $65,004.00 

(xvii) Government’s allowance for attorney’s fees (attorney’s fees percentage used to determine Subtotal D multiplied by 

subtotal G) ....................................................................................................................................................................................... $21,665.83 

(xviii) Refund to the United States (Line p minus Line q) .............................................................................................................. $43,338.17 

(xix) Credit against future benefits (If Subtotal F is greater than refundable disbursements, Line n minus Line o) .................. $0.00 

(3) In this example, a Federal 

employee who is married with two 

minor children is killed in the 

performance of duty. A suit for wrongful 

death and survival is filed which 

includes claims for loss of consortium 

all of which is permitted under state 

law. A joint settlement is reached for all 

claims and all parties in the amount of 

$1,000,000. There were court costs of 

$48,000 and attorney’s fees of $300,000. 

Two Statements of Recovery are 

completed: One for the wrongful death 

claim and the other for the survival 

action. Disbursements in this case were 

$30,000 for the deceased employee and 

$100,000 for the surviving spouse and 

children. 

(i) For the wrongful death claim the 

calculation is as follows: 

(A) Gross Recovery ....................................................................................................................................................................... $1,000.000.00 

(B) Amount of Property Damage ................................................................................................................................................. $0.00 

(C) Subtotal A (Line a minus Line b) .......................................................................................................................................... $1,000,000.00 

(D) Amount Allocated for Loss of Consortium (25% (15% for spouse, 5% for each child) of Line c) .................................. $250,000.00 

(E) Subtotal B (Line c minus Line d) .......................................................................................................................................... $750,000.00 

(F) Amount Allocated for Wrongful Death 65% of Line e ........................................................................................................ $487,500.00 

(G) Amount Allocated for Survival Action 35% of Line e ........................................................................................................ $262,500.00 

(H) Subtotal C—If Wrongful Death Use Line f, if survival action use Line g, otherwise use Subtotal B ............................... $487,500.00 

(I) Attorney’s Fees 30% (Line h × .30) ........................................................................................................................................ $146,250.00 

(J) Subtotal D (Line h minus Line i) ............................................................................................................................................ $341,250.00 

(K) Court costs are reduced by the amount allocated for the loss of consortium (in this example, .25 × $48,000 = 

12,000) and then by the amount allocated for survivor action, [(48,000 ¥ 12,000) × .35 = 12,600], [48,000 ¥ 12,000 

¥ 12,600]) ................................................................................................................................................................................. $23,400.00 

(L) Subtotal E (Line j minus Line k) ............................................................................................................................................ $317,850.00 

(M) One-fifth of Subtotal E (Line l × .20) .................................................................................................................................... $63,570.00 

(N) Subtotal F (Line l minus Line m) .......................................................................................................................................... $254,280.00 

(O) Refundable Disbursements .................................................................................................................................................... $100,000.00 

(P) Subtotal G (lower of Subtotal F or refundable disbursements) ........................................................................................... $100,000.00 

(Q) Government’s allowance for attorney’s fees (attorney’s fees percentage used to determine Subtotal D multiplied by 

subtotal G) ................................................................................................................................................................................. $30,000.00 

(R) Refund to the United States (Line p minus Line q) ............................................................................................................. $70,000.00 

(S) Credit against future benefits (If Subtotal F is greater than refundable disbursements, Line n minus Line o) ............... $154,280.00 

(ii) For the survival claim the 

calculation is as follows: 

(A) Gross Recovery ....................................................................................................................................................................... $1,000.000.00 

(B) Amount of Property Damage ................................................................................................................................................. $0.00 

(C) Subtotal A (Line a minus Line b) .......................................................................................................................................... $1,000,000.00 

(D) Amount Allocated for Loss of Consortium (25% (15% for spouse, 5% for each child) of Line c) .................................. $250,000.00 

(E) Subtotal B (Line c minus Line d) .......................................................................................................................................... $750,000.00 

(F) Amount Allocated for Wrongful Death 65% of Line e ........................................................................................................ $487,500.00 

(G) Amount Allocated for Survival Action 35% of Line e ........................................................................................................ $262,500.00 

(H) Subtotal C—If Wrongful Death Use Line f, if survival action use Line g, otherwise use Subtotal B ............................... $262,500.00 

(I) Attorney’s Fees 30% (line h × .30) ......................................................................................................................................... $78,750.00 

(J) Subtotal D (Line h minus Line i) ............................................................................................................................................ $183,750.00 

(K) Court costs are reduced by the amount allocated for the loss of consortium (in this example, .25 × $48,000 = 

12,000) and then by the amount allocated for wrongful death, [(48,000 ¥ 12,000) × .65 = 23,400], [48,000 ¥ 12,000 

¥ 23,400]) ................................................................................................................................................................................. $12,600.00 

(L) Subtotal E (Line j minus Line k) ............................................................................................................................................ $171,150.00 

(M) One-fifth of Subtotal E (Line l × .20) .................................................................................................................................... $34,230.00 

(N) Subtotal F (Line l minus Line m) .......................................................................................................................................... $136,920.00 

(O) Refundable Disbursements .................................................................................................................................................... $30,000.00 

(P) Subtotal G (lower of Subtotal F or refundable disbursements) ........................................................................................... $30,000.00 

(Q) Government’s allowance for attorney’s fees (attorney’s fees percentage used to determine Subtotal D multiplied by 

subtotal G) ................................................................................................................................................................................. $9,000.00 

(R) Refund to the United States (Line p minus Line q) ............................................................................................................. $21,000.00 

(S) Credit against future benefits (If Subtotal F is greater than refundable disbursements, Line n minus Line o) ............... $106,920.00 

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37936 Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 

§ 10.713 How is a structured settlement 

(that is, a settlement providing for receipt of 

funds over a specified period of time) 

treated for purposes of reporting the gross 

recovery? 

In this situation, the gross recovery to 

be reported is the present value of the 

right to receive all of the payments 

included in the structured settlement, 

allocated in the case of multiple 

recipients in the same manner as single 

payment recoveries. 

§ 10.714 What amounts are included in the 

refundable disbursements? 

The refundable disbursements of a 

specific claim consist of the total money 

paid by OWCP from the Employees’ 

Compensation Fund with respect to that 

claim to or on behalf of a FECA 

beneficiary including charges for field 

nurses, vocational rehabilitation, and 

second opinion and referee physicians, 

less charges for any medical file review 

(i.e., the physician does not examine the 

employee) done at the request of OWCP. 

Charges for medical examinations also 

may be subtracted if the FECA 

beneficiary establishes that the 

examinations were required to be made 

available to the employee under a 

statute other than the FECA by the 

employing agency or at the employing 

agency’s cost. Requests for 

disbursements can be made to SOL or 

OWCP. 

§ 10.715 Is a beneficiary required to pay 

interest on the amount of the refund due to 

the United States? 

If the refund due to the United States 

is not submitted within 30 days of 

receiving a request for payment from 

SOL or OWCP, interest shall accrue on 

the refund due to the United States from 

the date of the request. The rate of 

interest assessed shall be the rate of the 

current value of funds to the United 

States Treasury as published in the 

Federal Register (as of the date the 

request for payment is sent). Waiver of 

the collection of interest shall be in 

accordance with the provisions of the 

Department of Labor regulations on 

Federal Claims Collection governing 

waiver of interest, 29 CFR 20.61. 

§ 10.716 If the required refund is not paid 

within 30 days of the request for repayment, 

can it be collected from payments due 

under the FECA? 

If the required refund is not paid 

within 30 days of the request for 

payment, OWCP can, in its discretion, 

collect the refund by withholding all or 

part of any payments currently payable 

to the beneficiary under the FECA with 

respect to any injury. The waiver 

provisions of §§ 10.432 through 10.440 

do not apply to such determinations. 

§ 10.717 Is a settlement or judgment 

received as a result of allegations of 

medical malpractice in treating an injury 

covered by the FECA a gross recovery that 

must be reported to OWCP or SOL? 

Since an injury caused by medical 

malpractice in treating an injury 

covered by the FECA is also an injury 

covered under the FECA, any recovery 

in a suit alleging such an injury is 

treated as a gross recovery that must be 

reported to OWCP or SOL. 

§ 10.718 Are payments to a beneficiary as 

a result of an insurance policy which the 

beneficiary has purchased a gross recovery 

that must be reported to OWCP or SOL? 

Since payments received by a FECA 

beneficiary pursuant to an insurance 

policy purchased by someone other than 

a liable third party are not payments in 

satisfaction of liability for causing an 

injury covered by the FECA, they are 

not considered a gross recovery covered 

by section 8132 that requires filing a 

Statement of Recovery and paying any 

required refund. 

§ 10.719 If a settlement or judgment is 

received for more than one wound or 

medical condition, can the refundable 

disbursements paid on a single FECA claim 

be attributed to different conditions for 

purposes of calculating the refund or credit 

owed to the United States? 

(a) All wounds, diseases or other 

medical conditions accepted by OWCP 

in connection with a single claim are 

treated as the same injury for the 

purpose of computing any required 

refund and any credit against future 

benefits in connection with the receipt 

of a recovery from a third party, except 

that an injury caused by medical 

malpractice in treating an injury 

covered under the FECA will be treated 

as a separate injury for purposes of 

section 8132. 

(b) If an injury covered under the 

FECA is caused under circumstances 

creating a legal liability in more than 

one person, other than the United 

States, to pay damages, OWCP or SOL 

will determine whether recoveries 

received from one or more third parties 

should be attributed to separate 

conditions for which compensation is 

payable in connection with a single 

FECA claim. If such an attribution is 

both practicable and equitable, as 

determined by OWCP or SOL, in its 

discretion, the conditions will be treated 

as separate injuries for purposes of 

calculating the refund and credit owed 

to the United States under section 8132. 

Federal Grand and Petit Jurors 

§ 10.725 When is a Federal grand or petit 

juror covered under the FECA? 

(a) Federal grand and petit jurors are 

covered under the FECA when they are 

in performance of duty as a juror, which 

includes that time when a juror is: 

(1) In attendance at court pursuant to 

a summons; 

(2) In deliberation; 

(3) Sequestered by order of a judge; or 

(4) At a site, by order of the court, for 

the taking of a view. 

(b) A juror is not considered to be in 

the performance of duty while traveling 

to or from home in connection with the 

activities enumerated in paragraphs (a) 

(1) through (4) of this section. 

§ 10.726 When does a juror’s entitlement 

to disability compensation begin? 

Pursuant to 28 U.S.C. 1877, 

entitlement to disability compensation 

does not commence until the day after 

the date of termination of service as a 

juror. 

§ 10.727 What is the pay rate of jurors for 

compensation purposes? 

For the purpose of computing 

compensation payable for disability or 

death, a juror is deemed to receive pay 

at the minimum rate for Grade GS–2 of 

the General Schedule unless his or her 

actual pay as an ‘‘employee’’ of the 

United States while serving on court 

leave is higher, in which case the pay 

rate for compensation purposes is 

determined in accordance with 5 U.S.C. 

8114. 

Peace Corps Volunteers 

§ 10.730 What are the conditions of 

coverage for Peace Corps volunteers and 

volunteer leaders injured while serving 

outside the United States? 

(a) Any injury sustained by a 

volunteer or volunteer leader while he 

or she is located abroad is deemed 

proximately caused by Peace Corps 

employment and will be found by 

OWCP to have been sustained in the 

performance of duty, and any illness 

contracted while that volunteer is 

located abroad will be found by OWCP 

to be proximately caused by the 

employment unless the evidence 

establishes: 

(1) The injury or illness was caused 

by the claimant’s willful misconduct, 

intent to bring about the injury or death 

of self or another, or was proximately 

caused by the intoxication by alcohol or 

illegal drugs of the injured claimant; or 

(2) The illness is shown to have preexisted the period of service abroad; or 

(3) The injury or illness claimed is a 

manifestation of symptoms of, or 

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consequent to, a pre-existing congenital 

defect or abnormality. 

(b) If the OWCP finds that the 

evidence indicates that the injury or 

illness may not have been sustained in 

the performance of duty due to the 

circumstances enumerated in paragraph 

(a)(2) and (3) of this section, the 

claimant may still prove his claim by 

the submittal of substantial and 

probative evidence that such injury or 

illness was sustained in the 

performance of duty with the Peace 

Corps. 

(c) If an injury or illness, or episode 

thereof, comes within one of the 

exceptions described in paragraph (a)(2) 

or (3) of this section, the claimant may 

nonetheless be entitled to 

compensation. This will be so provided 

he or she meets the burden of proving 

by the submittal of substantial, 

probative and rationalized medical 

evidence that the illness or injury was 

proximately caused by factors or 

conditions of Peace Corps service, or 

that it was materially aggravated, 

accelerated or precipitated by factors of 

Peace Corps service; if the injury or 

illness was temporarily aggravated by 

factors of Peace Corps service, disability 

compensation is payable for the period 

of such aggravation. 

§ 10.731 What is the pay rate of Peace 

Corps volunteers and volunteer leaders for 

compensation purposes? 

The pay rate for these claimants is 

defined as the pay rate in effect on the 

date following separation, provided that 

the rate equals or exceeds the pay rate 

on the date of injury. It is defined in 

accordance with 5 U.S.C. 8142(a), not 

8101(4). 

Non-Federal Law Enforcement Officers 

§ 10.735 When is a non-Federal law 

enforcement officer (LEO) covered under 

the FECA? 

(a) A law enforcement officer (officer) 

includes an employee of a State or local 

Government, the Governments of U.S. 

possessions and territories, or an 

employee of the United States 

pensioned or pensionable under 

sections 521–535 of Title 4, D.C. Code, 

whose functions include the activities 

listed in 5 U.S.C. 8191. 

(b) Benefits are available to officers 

who are not ‘‘employees’’ under 5 

U.S.C. 8101, and who are determined in 

the discretion of OWCP to have been 

engaged in the activities listed in 5 

U.S.C. 8191 with respect to the 

enforcement of crimes against the 

United States. Individuals who only 

perform administrative functions in 

support of officers are not considered 

officers. 

(c) Except as provided by 5 U.S.C. 

8191 and 8192 and elsewhere in this 

part, the provisions of the FECA and of 

subparts A, B, and D through I of this 

part apply to officers. 

§ 10.736 What are the time limits for filing 

a LEO claim? 

OWCP must receive a claim for 

benefits under 5 U.S.C. 8191 within five 

years after the injury or death. This fiveyear limitation is not subject to waiver. 

The tolling provisions of 5 U.S.C. 

8122(d) do not apply to these claims. 

§ 10.737 How is a LEO claim filed, and who 

can file a LEO claim? 

A claim for injury or occupational 

disease should be filed on Form CA– 

721; a death claim should be filed on 

Form CA–722. All claims should be 

submitted to the officer’s employer for 

completion and forwarding to OWCP. A 

claim may be filed by the officer, the 

officer’s survivor, or any person or 

association authorized to act on behalf 

of an officer or an officer’s survivors. 

§ 10.738 Under what circumstances are 

benefits payable in LEO claims? 

(a) Benefits are payable when an 

officer is injured while apprehending, or 

attempting to apprehend, an individual 

for the commission of a Federal crime. 

However, either an actual Federal crime 

must be in progress or have been 

committed, or objective evidence (of 

which the officer is aware at the time of 

injury) must exist that a potential 

Federal crime was in progress or had 

already been committed. The actual or 

potential Federal crime must be an 

integral part of the criminal activity 

toward which the officer’s actions are 

directed. The fact that an injury to an 

officer is related in some way to the 

commission of a Federal crime does not 

necessarily bring the injury within the 

coverage of the FECA. The FECA is not 

intended to cover officers who are 

merely enforcing local laws. 

(b) For benefits to be payable when an 

officer is injured preventing, or 

attempting to prevent, a Federal crime, 

there must be objective evidence that a 

Federal crime is about to be committed. 

An officer’s belief, unsupported by 

objective evidence, that he or she is 

acting to prevent the commission of a 

Federal crime will not result in 

coverage. Moreover, the officer’s 

subjective intent, as measured by all 

available evidence (including the 

officer’s own statements and testimony, 

if available), must have been directed 

toward the prevention of a Federal 

crime. In this context, an officer’s own 

statements and testimony are relevant 

to, but do not control, the determination 

of coverage. 

§ 10.739 What kind of objective evidence 

of a potential Federal crime must exist for 

coverage to be extended? 

Based on the facts available at the 

time of the event, the officer must have 

an awareness of sufficient information 

which would lead a reasonable officer, 

under the circumstances, to conclude 

that a Federal crime was in progress, or 

was about to occur. This awareness 

need not extend to the precise 

particulars of the crime (the section of 

Title 18, United States Code, for 

example), but there must be sufficient 

evidence that the officer was in fact 

engaged in actual or attempted 

apprehension of a Federal criminal or 

prevention of a Federal crime. 

§ 10.740 In what situations will OWCP 

automatically presume that a law 

enforcement officer is covered by the 

FECA? 

(a) Where an officer is detailed by a 

competent State or local authority to 

assist a Federal law enforcement 

authority in the protection of the 

President of the United States, or any 

other person actually provided or 

entitled to U.S. Secret Service 

protection, coverage will be extended. 

(b) Coverage for officers of the U.S. 

Park Police and those officers of the 

Uniformed Division of the U.S. Secret 

Service who participate in the District of 

Columbia Retirement System is 

adjudicated under the principles set 

forth in paragraph (a) of this section, 

and does not extend to numerous 

tangential activities of law enforcement 

(for example, reporting to work, 

changing clothes). However, officers of 

the Non-Uniformed Division of the U.S. 

Secret Service who participate in the 

District of Columbia Retirement System 

are covered under the FECA during the 

performance of all official duties. 

§ 10.741 How are benefits calculated in 

LEO claims? 

(a) Except for continuation of pay, 

eligible officers and survivors are 

entitled to the same benefits as if the 

officer had been an employee under 5 

U.S.C. 8101. However, such benefits 

may be reduced or adjusted as OWCP in 

its discretion may deem appropriate to 

reflect comparable benefits which the 

officer or survivor received or would 

have been entitled to receive by virtue 

of the officer’s employment. 

(b) For the purpose of this section, a 

comparable benefit includes any benefit 

that the officer or survivor is entitled to 

receive because of the officer’s 

employment, including pension and 

disability funds, State workers’ 

compensation payments, Public Safety 

Officers’ Benefits Act payments, and 

State and local lump-sum payments. 

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Health benefits coverage and proceeds 

of life insurance policies purchased by 

the employer are not considered to be 

comparable benefits. 

(c) The FECA provides that, where an 

officer receives comparable benefits, 

compensation benefits are to be reduced 

proportionally in a manner that reflects 

the relative percentage contribution of 

the officer and the officer’s employer to 

the fund which is the source of the 

comparable benefit. Where the source of 

the comparable benefit is a retirement or 

other system which is not fully funded, 

the calculation of the amount of the 

reduction will be based on a per capita 

comparison between the contribution by 

the employer and the contribution by all 

covered officers during the year prior to 

the officer’s injury or death. 

(d) The non-receipt of compensation 

during a period where a dual benefit 

(such as a lump-sum payment on the 

death of an officer) is being offset 

against compensation entitlement does 

not result in an adjustment of the 

respective benefit percentages of 

remaining beneficiaries because of a 

cessation of compensation under 5 

U.S.C. 8133(c). 

Subpart I—Information for Medical 

Providers 

Medical Records and Bills 

§ 10.800 How do providers enroll with 

OWCP for authorizations and billing? 

(a) All providers must enroll with 

OWCP or its designated bill processing 

agent (hereinafter OWCP in this subpart) 

to have access to the automated 

authorization system and to submit 

medical bills to OWCP. To enroll, the 

provider must complete and submit a 

Form OWCP–1168 to the appropriate 

location noted on that form. By 

completing and submitting this form, 

providers certify that they satisfy all 

applicable Federal and State licensure 

and regulatory requirements that apply 

to their specific provider or supplier 

type. The provider must maintain 

documentary evidence indicating that it 

satisfies those requirements. The 

provider is also required to notify 

OWCP immediately if any information 

provided to OWCP in the enrollment 

process changes. Agency medical 

officers, private physicians and 

hospitals are also required to keep 

records of all cases treated by them 

under the FECA so they can supply 

OWCP with a history of the injury, a 

description of the nature and extent of 

injury, the results of any diagnostic 

studies performed, the nature of the 

treatment rendered and the degree of 

any impairment and/or disability arising 

from the injury. 

(b) Where a medical provider intends 

to bill for a procedure where prior 

authorization is required, that provider 

must request such authorization from 

OWCP. 

(c) After enrollment, a provider must 

submit all medical bills to OWCP 

through its bill processing portal and 

include the Provider Number/ID 

obtained through enrollment or other 

identifying number required by OWCP. 

§ 10.801 How are medical bills to be 

submitted? 

(a) All charges for medical and 

surgical treatment, appliances or 

supplies furnished to injured 

employees, except for treatment and 

supplies provided by nursing homes, 

shall be supported by medical evidence 

as provided in § 10.800. OWCP may 

withhold payment for services until 

such report or evidence is provided. The 

physician or provider shall itemize the 

charges on Form OWCP–1500 or CMS– 

1500 (for professional services or 

medicinal drugs dispensed in the 

office), Form OWCP–04 or UB–04 (for 

hospitals), an electronic or paper-based 

bill that includes required data elements 

(for pharmacies) or other form as 

warranted and accepted by OWCP, and 

submit the form promptly to OWCP. 

(b) The provider shall identify each 

service performed using the Physician’s 

Current Procedural Terminology (CPT) 

code, the Healthcare Common 

Procedure Coding System (HCPCS) 

code, the National Drug Code (NDC), or 

the Revenue Center Code (RCC) with a 

brief narrative description; OWCP has 

discretion to determine which of these 

codes may be utilized in the billing 

process. The Director also has the 

authority to create and supply specific 

procedure codes that will be used by 

OWCP to better describe and allow 

specific payments for special services. 

These OWCP-created codes will be 

issued to providers by OWCP as 

appropriate and may only be used as 

authorized by OWCP. For example, a 

physician conducting a referee or 

second opinion examination under 5 

U.S.C. 8123 will be furnished an OWCPcreated code; a provider may not use 

such an OWCP-created code for other 

types of medical examinations or 

services. Where no appropriate code is 

submitted to identify the services 

performed, the bill will be returned to 

the provider and/or denied. 

(c) For professional charges billed on 

Form OWCP–1500 or CMS–1500, the 

provider shall also state each diagnosed 

condition and furnish the corresponding 

diagnostic code using the ‘‘International 

Classification of Disease, 9th Edition, 

Clinical Modification’’ (ICD–9–CM), or 

as revised. A separate bill shall be 

submitted when the employee is 

discharged from treatment or monthly, 

if treatment for the work-related 

condition is necessary for more than 30 

days. 

(1) (i) Hospitals shall submit charges 

for inpatient medical and surgical 

treatment or supplies promptly to 

OWCP on Form OWCP–04 or UB–04. 

(ii) For outpatient billing, the provider 

shall identify each service performed, 

using Revenue Center Codes (RCCs) and 

HCPCS/CPT codes as warranted. The 

charge for each individual service, or 

the total charge for all identical services, 

should also appear on the form. OWCP 

may adopt an Outpatient Prospective 

Payment System (OWCP OPPS) (as 

developed and implemented by the 

Center for Medicare and Medicaid 

services (CMS) for Medicare, while 

modifying the allowable costs under 

Medicare to account for deductibles and 

other additional costs which are covered 

by FECA). Once adopted, hospital 

providers shall submit outpatient 

hospital bills on the current version of 

the Universal Billing Form (UB) and use 

HCPCS codes and other coding schemes 

in accordance with the OWCP OPPS. 

(2) Pharmacies shall itemize charges 

for prescription medications, 

appliances, or supplies on electronic or 

paper-based bills and submit them 

promptly to OWCP. Bills for 

prescription medications must include 

the NDC assigned to the product, the 

generic or trade name of the drug 

provided, the prescription number, the 

quantity provided, and the date the 

prescription was filled. 

(3) Nursing homes shall itemize 

charges for appliances, supplies or 

services on the provider’s billhead 

stationery and submit them promptly to 

OWCP. Such charges shall be subject to 

any applicable OWCP fee schedule. 

(d) By submitting a bill and/or 

accepting payment, the provider 

signifies that the service for which 

reimbursement is sought was performed 

as described, necessary, appropriate and 

properly billed in accordance with 

accepted industry standards. For 

example, accepted industry standards 

preclude upcoding billed services for 

extended medical appointments when 

the employee actually had a brief 

routine appointment, or charging for the 

services of a professional when a 

paraprofessional or aide performed the 

service; industry standards prohibit 

unbundling services to charge 

separately for services that should be 

billed as a single charge. In addition, the 

provider thereby agrees to comply with 

all regulations set forth in this subpart 

concerning the rendering of treatment 

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and/or the process for seeking 

reimbursement for medical services, 

including the limitation imposed on the 

amount to be paid for such services. 

(e) In summary, bills submitted by 

providers must: Be itemized on the 

Health Insurance Claim Form (for 

physicians) or the OWCP–04 (for 

hospitals); contain the signature or 

signature stamp of the provider; and 

identify the procedures using HCPCS/ 

CPT codes, RCCs, or NDCs. Otherwise, 

OWCP may deny the bill, and the 

provider must correct and resubmit the 

bill. 

§ 10.802 How should an employee prepare 

and submit requests for reimbursement for 

medical expenses, transportation costs, 

loss of wages, and incidental expenses? 

(a) If an employee has paid bills for 

medical, surgical or dental services, 

supplies or appliances due to an injury 

sustained in the performance of duty 

and seeks reimbursement for those 

expenses, he or she may submit a 

request for reimbursement on Form 

OWCP–915, together with an itemized 

bill on Form OWCP–1500, CMS–1500, 

OWCP–04 or UB–04 prepared by the 

provider and a medical report as 

provided in § 10.800, to OWCP. 

(1) The provider of such service shall 

state each diagnosed condition and 

furnish the applicable ICD–9–CM code, 

or as revised, and identify each service 

performed using the applicable HCPCS/ 

CPT code, with a brief narrative 

description of the service performed, or, 

where no code is applicable, a detailed 

description of that service. If no code or 

description is received, OWCP will 

deny the reimbursement request and 

correction and resubmission will be 

required. 

(2) The reimbursement request must 

be accompanied by evidence that the 

provider received payment for the 

service from the employee and a 

statement of the amount paid. 

Acceptable evidence that payment was 

received includes, but is not limited to, 

a signed statement by the provider, a 

mechanical stamp or other device 

showing receipt of payment, a copy of 

the employee’s canceled check (both 

front and back) or a copy of the 

employee’s credit card receipt or a form 

indicating a balance of zero to the 

provider. 

(b) If services were provided by a 

hospital, pharmacy or nursing home, the 

employee should submit the bill in 

accordance with the provisions of 

§ 10.801(a). Any request for 

reimbursement must be accompanied by 

evidence, as described in paragraph (a) 

of this section, that the provider 

received payment for the service from 

the employee and a statement of the 

amount paid. 

(c) OWCP may waive the 

requirements of paragraphs (a) and (b) of 

this section if extensive delays in the 

filing or the adjudication of a claim 

make it unusually difficult for the 

employee to obtain the required 

information. 

(d) OWCP will not accept copies of 

bills for reimbursement unless they bear 

the signature of the provider, with 

evidence of payment. Payment for 

medical and surgical treatment, 

appliances or supplies shall in general 

be no greater than the maximum 

allowable charge for such service 

determined by the Director, as set forth 

in § 10.805. 

(e) An employee will be only partially 

reimbursed for a medical expense if the 

amount he or she paid to a provider for 

the service exceeds the maximum 

allowable charge set by the Director’s 

schedule. If this happens, OWCP shall 

advise the employee of the maximum 

allowable charge for the service in 

question and of his or her responsibility 

to ask the provider to refund to the 

employee, or credit to the employee’s 

account, the amount he or she paid 

which exceeds the maximum allowable 

charge. The provider may request 

reconsideration of the fee determination 

as set forth in § 10.812. 

(f) If the provider fails to make 

appropriate refund to the employee, or 

to credit the employee’s account, within 

60 days after the employee requests a 

refund of any excess amount, or the date 

of a subsequent reconsideration 

decision which continues to disallow all 

or a portion of the appealed amount, the 

provider shall be subject to exclusion 

procedures as provided by § 10.815. 

(g) If the provider does not refund to 

the employee or credit to his or her 

account the amount of money paid in 

excess of the charge which OWCP 

allows, the employee should submit 

documentation of the attempt to obtain 

such refund or credit to OWCP. OWCP 

may make reasonable reimbursement to 

the employee after reviewing the facts 

and circumstances of the case. 

(h) If an employee seeks 

reimbursement for transportation costs, 

loss of wages or incidental expenses 

related to medical treatment under this 

part, that employee may submit such 

reimbursement request on the Medical 

Travel Refund Request OWCP–957 form 

to OWCP along with all proof of 

payment. Requests for reimbursement 

for lost wages under this subsection 

must include an official statement from 

the employing agency indicating the 

amount of wage loss. 

§ 10.803 What are the time limitations on 

OWCP’s payment of bills? 

OWCP will pay providers and 

reimburse employees promptly for all 

bills received on an approved form and 

in a timely manner. However, no bill 

will be paid for expenses incurred if the 

bill is submitted more than one year 

beyond the end of the calendar year in 

which the expense was incurred or the 

service or supply was provided, or more 

than one year beyond the end of the 

calendar year in which the claim was 

first accepted as compensable by OWCP, 

whichever is later. 

Medical Fee Schedule 

§ 10.805 What services are covered by the 

OWCP fee schedule? 

(a) Payment for medical and other 

health services, devices and supplies 

furnished by physicians, hospitals, and 

other providers for work-related injuries 

shall not exceed a maximum allowable 

charge for such service as determined by 

the Director, except as provided in this 

section. 

(b) The schedule of maximum 

allowable charges does not apply to 

charges for services provided in nursing 

home for employees admitted to that 

nursing home prior to August 29, 2011, 

but does apply to all charges for services 

provided by a nursing home where the 

employee was admitted to that nursing 

home after that date. The schedule does 

apply to charges for treatment furnished 

in a nursing home by a physician or 

other medical professional at any time. 

(c) The schedule of maximum 

allowable charges also does not apply to 

charges for appliances, supplies, 

services or treatment furnished by 

medical facilities of the U.S. Public 

Health Service or the Departments of the 

Army, Navy, Air Force and Veterans 

Affairs. 

§ 10.806 How are the maximum fees 

defined? 

For professional medical services, the 

Director shall maintain a schedule of 

maximum allowable fees for procedures 

performed in a given locality. The 

schedule shall consist of: An assignment 

of Relative Value Units (RVU) to 

procedures identified by Healthcare 

Common Procedure Coding System/ 

Current Procedural Terminology 

(HCPCS/CPT) code which represents the 

relative skill, effort, risk and time 

required to perform the procedure, as 

compared to other procedures of the 

same general class; an assignment of 

Geographic Practice Cost Index (GPCI) 

values which represent the relative 

work, practice expenses and malpractice 

expenses relative to other localities 

throughout the country; and a monetary 

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value assignment (conversion factor) for 

one unit of value for each coded service. 

§ 10.807 How are payments for particular 

services calculated? 

Payment for a procedure, service or 

device identified by a HCPCS/CPT code 

shall not exceed the amount derived by 

multiplying the Relative Value Units 

(RVU) values for that procedure by the 

Geographic Practice Cost Index (GPCI) 

values for services in that area and by 

the conversion factor to arrive at a dollar 

amount assigned to one unit in that 

category of service. 

(a) The ‘‘locality’’ which serves as a 

basis for the determination of cost is 

defined by the Office of Management 

and Budget Metropolitan Statistical 

Areas. The Director shall base the 

determination of the relative per capita 

cost of medical care in a locality using 

information about enrollment and 

medical cost per county, provided by 

the Centers for Medicare and Medicaid 

Services (CMS). 

(b) The Director shall assign the RVUs 

published by CMS to all services for 

which CMS has made assignments, 

using the most recent revision. Where 

there are no RVUs assigned to a 

procedure, the Director may develop 

and assign any RVUs that he or she 

considers appropriate. The geographic 

adjustment factor shall be that 

designated by GPCI for Metropolitan 

Statistical Areas as devised for CMS and 

as updated or revised by CMS from time 

to time. The Director will devise 

conversion factors for each category of 

service as appropriate using OWCP’s 

processing experience and internal data. 

(c) For example, if the RVUs for a 

particular surgical procedure are 2.48 

for physician’s work (W), 3.63 for 

practice expense (PE), and 0.48 for 

malpractice insurance (MP), and the 

conversion factor assigned to one unit in 

that category of service (surgery) is 

$61.20, then the maximum allowable 

charge for one performance of that 

procedure is the product of the three 

RVUs times the corresponding GPCI 

values for the locality times the 

conversion factor. If the GPCI values for 

the locality are 0.988(W), 0.948 (PE), 

and 1.174 (MP), then the maximum 

payment calculation is: 

[(2.48)(0.988) + (3.63)(0.948) + 

(0.48)(1.174)] × $61.20 

[2.45 + 3.44 + .56] × $61.20 

6.45 × $61.20 = $394.74 

§ 10.808 Does the fee schedule apply to 

every kind of procedure? 

Where the time, effort and skill 

required to perform a particular 

procedure vary widely from one 

occasion to the next, the Director may 

choose not to assign a relative value to 

that procedure. In this case the 

allowable charge for the procedure will 

be set individually based on 

consideration of a detailed medical 

report and other evidence. At its 

discretion, OWCP may set fees without 

regard to schedule limits for specially 

authorized consultant examinations, for 

examinations performed under 5 U.S.C. 

8123, and for other specially authorized 

services. 

§ 10.809 How are payments for medicinal 

drugs determined? 

Payment for medicinal drugs 

prescribed by physicians shall not 

exceed the amount derived by 

multiplying the average wholesale price, 

or as otherwise specified by OWCP, of 

the medication by the quantity or 

amount provided, plus a dispensing fee. 

OWCP may, in its discretion, contract 

for or require the use of specific 

providers for certain medications. 

(a) All prescription medications 

identified by National Drug Code (NDC) 

will be assigned an average wholesale 

price representing the product’s 

nationally recognized wholesale price as 

determined by surveys of manufacturers 

and wholesalers, or by other method 

designated by OWCP. The Director will 

establish the dispensing fee, which will 

not be affected by the location or type 

of provider dispensing the medication. 

(b) The NDCs, the average wholesale 

prices, and the dispensing fee shall be 

reviewed from time to time and updated 

as necessary. 

(c) With respect to prescribed 

medications, OWCP may require the use 

of generic equivalents where they are 

available. 

§ 10.810 How are payments for inpatient 

medical services determined? 

(a) OWCP will pay for inpatient 

medical services according to predetermined, condition-specific rates 

based on the Inpatient Prospective 

Payment System (IPPS) devised by CMS 

(42 CFR parts 412, 413, 424, 485, and 

489). Using this system, payment is 

derived by multiplying the diagnosisrelated group (DRG) weight assigned to 

the hospital discharge by the providerspecific factors. 

(1) All inpatient hospital discharges 

will be classified according to the DRGs 

prescribed by the CMS in the form of 

the DRG Grouper software program. 

Each DRG represents the average 

resources necessary to provide care in a 

case in that DRG relative to the national 

average of resources consumed per case. 

(2) The provider-specific factors will 

be provided by CMS in the form of their 

PPS Pricer software program. The 

software takes into consideration the 

type of facility, census division, actual 

geographic location (MSA) of the 

hospital, case mix cost per discharge, 

number of hospital beds, intern/beds 

ratio, operating cost to charge ratio, and 

other factors used by CMS to determine 

the specific rate for a hospital discharge 

under their PPS. The Director may 

devise price adjustment factors as 

appropriate using OWCP’s processing 

experience and internal data. 

(3) OWCP will base payments to 

facilities excluded from CMS’ IPPS on 

consideration of detailed medical 

reports and other evidence. 

(4) The Director shall review the predetermined hospital rates at least once 

a year, and may adjust any or all 

components when he or she deems it 

necessary or appropriate. 

(b) The Director shall review the 

schedule of fees at least once a year, and 

may adjust the schedule or any of its 

components when he or she deems it 

necessary or appropriate. 

§ 10.811 When and how are fees reduced? 

(a) OWCP accepts a provider’s 

designation of the code used to identify 

a billed procedure or service if the code 

is consistent with the medical and other 

evidence, and will pay no more than the 

maximum allowable fee for that 

procedure. If the code is not consistent 

with the medical evidence or where no 

code is supplied, the bill will be 

returned to the provider for correction 

and resubmission. 

(b) If the charge submitted for a 

service supplied to an injured employee 

exceeds the maximum amount 

determined to be reasonable according 

to the schedule, OWCP shall pay the 

amount allowed by the schedule for that 

service and shall notify the provider in 

writing that payment was reduced for 

that service in accordance with the 

schedule. OWCP shall also notify the 

provider of the method for requesting 

reconsideration of the balance of the 

charge. 

§ 10.812 If OWCP reduces a fee, may a 

provider request reconsideration of the 

reduction? 

(a) A physician or other provider 

whose charge for service is only 

partially paid because it exceeds a 

maximum allowable amount set by the 

Director may, within 30 days, request 

reconsideration of the fee 

determination. 

(1) The provider should make such a 

request to the OWCP district office with 

jurisdiction over the employee’s claim. 

The request must be accompanied by 

documentary evidence that the 

procedure performed was incorrectly 

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identified by the original code, that the 

presence of a severe or concomitant 

medical condition made treatment 

especially difficult, or that the provider 

possessed unusual qualifications. In 

itself, board-certification in a specialty 

is not sufficient evidence of unusual 

qualifications to justify an exception. 

These are the only three circumstances 

which will justify reevaluation of the 

paid amount. 

(2) A list of OWCP district offices and 

their respective areas of jurisdiction is 

available upon request from the U.S. 

Department of Labor, Office of Workers’ 

Compensation Programs, Washington, 

DC 20210, or from the Internet at 

http://www.dol.gov./owcp. Within 30 

days of receiving the request for 

reconsideration, the OWCP district 

office shall respond in writing stating 

whether or not an additional amount 

will be allowed as reasonable, 

considering the evidence submitted. 

(b) If the OWCP district office issues 

a decision which continues to disallow 

a contested amount, the provider may 

apply to the Regional Director of the 

region with jurisdiction over the OWCP 

district office. The application must be 

filed within 30 days of the date of such 

decision, and it may be accompanied by 

additional evidence. Within 60 days of 

receipt of such application, the Regional 

Director shall issue a decision in writing 

stating whether or not an additional 

amount will be allowed as reasonable, 

considering the evidence submitted. 

This decision shall be final, and shall 

not be subject to further review. 

§ 10.813 If OWCP reduces a fee, may a 

provider bill the claimant for the balance? 

A provider whose fee for service is 

partially paid by OWCP as a result of 

the application of its fee schedule or 

other tests for reasonableness in 

accordance with this part shall not 

request reimbursement from the 

employee for additional amounts. 

(a) Where a provider’s fee for a 

particular service or procedure is lower 

to the general public than as provided 

by the schedule of maximum allowable 

charges, the provider shall bill at the 

lower rate. A fee for a particular service 

or procedure which is higher than the 

provider’s fee to the general public for 

that same service or procedure will be 

considered a charge ‘‘substantially in 

excess of such provider’s customary 

charges’’ for the purposes of § 10.815(d). 

(b) A provider whose fee for service 

is partially paid by OWCP as the result 

of the application of the schedule of 

maximum allowable charges and who 

collects or attempts to collect from the 

employee, either directly or through a 

collection agent, any amount in excess 

of the charge allowed by OWCP, and 

who does not cease such action or make 

appropriate refund to the employee 

within 60 days of the date of the 

decision of OWCP, shall be subject to 

the exclusion procedures provided by 

§ 10.815(h). 

Exclusion of Providers 

§ 10.815 What are the grounds for 

excluding a provider from payment under 

the FECA? 

A physician, hospital, or provider of 

medical services, appliances or supplies 

shall be excluded from payment under 

the FECA if such physician, hospital or 

provider has: 

(a) Been convicted under any criminal 

statute of fraudulent activities in 

connection with any Federal or State 

program for which payments are made 

to providers for similar medical, 

surgical or hospital services, appliances 

or supplies; 

(b) Been excluded or suspended, or 

has resigned in lieu of exclusion or 

suspension, from participation in any 

Federal or State program referred to in 

paragraph (a) of this section; 

(c) Knowingly made, or caused to be 

made, any false statement or 

misrepresentation of a material fact in 

connection with a determination of the 

right to reimbursement under the FECA, 

or in connection with a request for 

payment; 

(d) Submitted, or caused to be 

submitted, three or more bills or 

requests for payment within a twelvemonth period under this subpart 

containing charges which OWCP finds 

to be substantially in excess of such 

provider’s customary charges, unless 

OWCP finds there is good cause for the 

bills or requests containing such 

charges; 

(e) Knowingly failed to timely 

reimburse employees for treatment, 

services or supplies furnished under 

this subpart and paid for by OWCP; 

(f) Failed, neglected or refused on 

three or more occasions during a 12- 

month period to submit full and 

accurate medical reports, or to respond 

to requests by OWCP for additional 

reports or information, as required by 

the FECA and § 10.800; 

(g) Knowingly furnished treatment, 

services or supplies which are 

substantially in excess of the employee’s 

needs, or of a quality which fails to meet 

professionally recognized standards; or 

(h) Collected or attempted to collect 

from the employee, either directly or 

through a collection agent, an amount in 

excess of the charge allowed by OWCP 

for the procedure performed, and has 

failed or refused to make appropriate 

refund to the employee, or to cease such 

collection attempts, within 60 days of 

the date of the decision of OWCP. 

(i) Failed to inform OWCP of any 

change in their provider status as 

required in section 10.800 of this title. 

(j) Engaged in conduct related to care 

of an employee’s FECA covered injury 

that OWCP finds to be misleading, 

deceptive or unfair. 

§ 10.816 What will cause OWCP to 

automatically exclude a physician or other 

provider of medical services and supplies? 

(a) OWCP shall automatically exclude 

a physician, hospital, or provider of 

medical services or supplies who has 

been convicted of a crime described in 

§ 10.815(a), or has been excluded or 

suspended, or has resigned in lieu of 

exclusion or suspension, from 

participation in any program as 

described in § 10.815(b). 

(b) The exclusion applies to 

participating in the program and to 

seeking payment under the FECA for 

services performed after the date of the 

entry of the judgment of conviction or 

order of exclusion, suspension or 

resignation, as the case may be, by the 

court or agency concerned. Proof of the 

conviction, exclusion, suspension or 

resignation may consist of a copy 

thereof authenticated by the seal of the 

court or agency concerned. 

(c) A provider may be excluded on a 

voluntary basis at any time. 

§ 10.817 How are OWCP’s exclusion 

procedures initiated? 

(a) Upon receipt of information 

indicating that a physician, hospital or 

provider of medical services or supplies 

(hereinafter the provider) has or may 

have engaged in activities enumerated 

in § 10.815(c) through (j) OWCP will 

forward that information to the 

Department of Labor’s Office of 

Inspector General (DOL OIG) for its 

consideration. If the information was 

provided directly to DOL OIG, DOL OIG 

will notify OWCP of its receipt and 

implement the appropriate action 

within its authority, unless such 

notification will or may compromise the 

identity of confidential sources, or 

compromise or prejudice an ongoing or 

potential criminal investigation. 

(b) DOL OIG will conduct such action 

as it deems necessary, and, when 

appropriate, provide a written report as 

described in paragraph (c) of this 

section to OWCP. OWCP will then 

determine whether to initiate 

procedures to exclude the provider from 

participation in the FECA program. If 

DOL OIG determines not to take any 

further action, it will promptly notify 

OWCP. 

(c) If DOL OIG discovers reasonable 

cause to believe that violations of 

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§ 10.815 have occurred, it shall, when 

appropriate, prepare a written report, 

i.e., investigative memorandum, and 

forward that report along with 

supporting evidence to OWCP. The 

report shall be in the form of a single 

memorandum in narrative form with 

attachments. 

(1) The report should contain all of 

the following elements: 

(i) A brief description and explanation 

of the subject provider or providers; 

(ii) A concise statement of the DOL 

OIG’s findings upon which exclusion 

may be based; 

(iii) A summary of the events that 

make up the DOL OIG’s findings; 

(iv) A discussion of the 

documentation supporting the DOL 

OIG’s findings; 

(v) A discussion of any other 

information that may have bearing upon 

the exclusion process; and 

(vi) The supporting documentary 

evidence including any expert opinion 

rendered in the case. 

(2) The attachments to the report 

should be provided in a manner that 

they may be easily referenced from the 

report. 

§ 10.818 How is a provider notified of 

OWCP’s intent to exclude him or her? 

Following receipt of the investigative 

report, OWCP will determine if there 

exists a reasonable basis to exclude the 

provider or providers. If OWCP 

determines that such a basis exists, 

OWCP shall initiate the exclusion 

process by sending the provider a letter, 

by certified mail and with return receipt 

requested (or equivalent service from a 

commercial carrier), which shall contain 

the following: 

(a) A concise statement of the grounds 

upon which exclusion shall be based; 

(b) A summary of the information, 

with supporting documentation, upon 

which OWCP has relied in reaching an 

initial decision that exclusion 

proceedings should begin; 

(c) An invitation to the provider to: 

(1) Resign voluntarily from eligibility 

for providing services under this part 

without admitting or denying the 

allegations presented in the letter; or 

(2) Request a decision on exclusion 

based upon the existing record and any 

additional documentary information the 

provider may wish to furnish; 

(d) A notice of the provider’s right, in 

the event of an adverse ruling by the 

deciding official, to request a formal 

hearing before an administrative law 

judge; 

(e) A notice that should the provider 

fail to answer (as described in § 10.819) 

the letter of intent within 60 days of 

receipt, the deciding official may deem 

the allegations made therein to be true 

and may order exclusion of the provider 

without conducting any further 

proceedings; and 

(f) The address to where the answer 

from the provider should be sent. 

§ 10.819 What requirements must the 

provider’s answer and OWCP’s decision 

meet? 

(a) The provider’s answer shall be in 

writing and shall include an answer to 

OWCP’s invitation to resign voluntarily. 

If the provider does not offer to resign, 

he or she shall request that a 

determination be made upon the 

existing record and any additional 

information provided. 

(b) Should the provider fail to answer 

the letter of intent within 60 days of 

receipt, the deciding official may deem 

the allegations made therein to be true 

and may order exclusion of the 

provider. 

(c) The provider may inspect or 

request copies of information in the 

record at any time prior to the deciding 

official’s decision by making such 

request to OWCP within 20 days of 

receipt of the letter of intent. 

(d) Any response from the provider 

will be forwarded to DOL OIG, which 

shall have 30 days to answer the 

provider’s response. That answer will be 

forwarded to the provider, who shall 

then have 15 days to reply. 

(e) The deciding official shall be the 

Regional Director in the region in which 

the provider is located unless otherwise 

specified by the Director of the Division 

of Federal Employees’ Compensation. 

(f) The deciding official shall issue his 

or her decision in writing, and shall 

send a copy of the decision to the 

provider by certified mail, return receipt 

requested (or equivalent service from a 

commercial carrier). The decision shall 

advise the provider of his or her right 

to request, within 30 days of the date of 

an adverse decision, a formal hearing 

before an administrative law judge 

under the procedures set forth in 

§§ 10.820 through 10.823. The filing of 

a request for a hearing within the time 

specified shall stay the effectiveness of 

the decision to exclude. 

§ 10.820 How can an excluded provider 

request a hearing? 

A request for a hearing shall be sent 

to the deciding official and shall 

contain: 

(a) A concise notice of the issues on 

which the provider desires to give 

evidence at the hearing; 

(b) Any request for the presentation of 

oral argument or evidence; and 

(c) Any request for a certification of 

questions concerning professional 

medical standards, medical ethics or 

medical regulation for an advisory 

opinion from a competent recognized 

professional organization or Federal, 

State or local regulatory body. 

§ 10.821 How are hearings assigned and 

scheduled? 

(a) If the deciding official receives a 

timely request for hearing, the OWCP 

representative shall refer the matter to 

the Chief Administrative Law Judge of 

the Department of Labor, who shall 

assign it for an expedited hearing. The 

administrative law judge assigned to the 

matter shall consider the request for 

hearing, act on all requests therein, and 

issue a Notice of Hearing and Hearing 

Schedule for the conduct of the hearing. 

A copy of the hearing notice shall be 

served on the provider by certified mail, 

return receipt requested. The Notice of 

Hearing and Hearing Schedule shall 

include: 

(1) A ruling on each item raised in the 

request for hearing; 

(2) A schedule for the prompt 

disposition of all preliminary matters, 

including requests for the certification 

of questions to advisory bodies; and 

(3) A scheduled hearing date not less 

than 30 days after the date the schedule 

is issued, and not less than 15 days after 

the scheduled conclusion of preliminary 

matters, provided that the specific time 

and place of the hearing may be set on 

10 days’ notice. 

(b) The provider is entitled to be 

heard on any matter placed in issue by 

his or her response to the Notice of 

Intent to Exclude, and may designate 

‘‘all issues’’ for purposes of hearing. 

However, a specific designation of 

issues is required if the provider wishes 

to interpose affirmative defenses, or 

request the issuance of subpoenas or the 

certification of questions for an advisory 

opinion. 

§ 10.822 How are subpoenas or advisory 

opinions obtained? 

(a) The provider may apply to the 

administrative law judge for the 

issuance of subpoenas upon a showing 

of good cause therefor. 

(b) A certification of a request for an 

advisory opinion concerning 

professional medical standards, medical 

ethics or medical regulation to a 

competent recognized or professional 

organization or Federal, State or local 

regulatory agency may be made: 

(1) As to an issue properly designated 

by the provider, in the sound discretion 

of the administrative law judge, 

provided that the request will not 

unduly delay the proceedings; 

(2) By OWCP on its own motion either 

before or after the institution of 

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proceedings, and the results thereof 

shall be made available to the provider 

at the time that proceedings are 

instituted or, if after the proceedings are 

instituted, within a reasonable time after 

receipt. The opinion, if rendered by the 

organization or agency, is advisory only 

and not binding on the administrative 

law judge. 

§ 10.823 How will the administrative law 

judge conduct the hearing and issue the 

recommended decision? 

(a) To the extent appropriate, 

proceedings before the administrative 

law judge shall be governed by 29 CFR 

part 18. 

(b) The administrative law judge shall 

receive such relevant evidence as may 

be adduced at the hearing. Parties to the 

hearing are the provider and OWCP. 

Evidence shall be presented under oath, 

orally or in the form of written 

statements. The administrative law 

judge shall consider the Notice and 

Response, including all pertinent 

documents accompanying them, and 

may also consider any evidence which 

refers to the provider or to any claim 

with respect to which the provider has 

provided medical services, hospital 

services, or medical services and 

supplies, and such other evidence as the 

administrative law judge may determine 

to be necessary or useful in evaluating 

the matter. 

(c) All hearings shall be recorded and 

the original of the complete transcript 

shall become a permanent part of the 

official record of the proceedings. 

(d) Pursuant to 5 U.S.C. 8126 and 29 

CFR part 18, the administrative law 

judge may issue subpoenas, administer 

oaths, and examine witnesses with 

respect to the proceedings. 

(e) At the conclusion of the hearing, 

the administrative law judge shall issue 

a recommended decision and cause it to 

be served on all parties to the 

proceeding, their representatives and 

the Director of OWCP. 

§ 10.824 How does the recommended 

decision become final? 

(a) Within 30 days from the date the 

recommended decision is issued, each 

party may state, in writing, whether the 

party objects to the recommended 

decision. This written statement should 

be filed with the Director of OWCP. 

(b) For purposes of determining 

whether the written statement referred 

to in paragraph (a) of this section has 

been timely filed with the Director, the 

statement will be considered to be 

‘‘filed’’ on the date that the provider 

mails it to the Director, as determined 

by postmark or the date that such 

written statement is actually received by 

the Director, whichever is earlier. 

(c) Written statements objecting to the 

recommended decision may be filed 

upon one or more of the following 

grounds: 

(1) A finding or conclusion of material 

fact is not supported by substantial 

evidence; 

(2) A necessary legal conclusion is 

erroneous; 

(3) The decision is contrary to law or 

to the duly promulgated rules or 

decisions of the Director; 

(4) A substantial question of law, 

policy, or discretion is involved; or 

(5) A prejudicial error of procedure 

was committed. 

(d) Each issue shall be separately 

numbered and plainly and concisely 

stated, and shall be supported by 

detailed citations to the record when 

assignments of error are based on the 

record, and by statutes, regulations or 

principal authorities relied upon. 

Except for good cause shown, no 

assignment of error by any party shall 

rely on any question of fact or law upon 

which the administrative law judge had 

not been afforded an opportunity to 

pass. 

(e) If a written statement of objection 

is filed within the allotted period of 

time, the Director will review the 

objection. The Director will forward the 

written objection to the DOL OIG, which 

will have 14 calendar days from that 

date to respond. Any response from 

DOL OIG will be forwarded to the 

provider, which will have 14 calendar 

days from that date to reply. 

(f) The Director of OWCP will 

consider the recommended decision, the 

written record and any response or 

reply received and will then issue a 

written, final decision either upholding 

or reversing the exclusion. 

(g) If no written statement of objection 

is filed within the allotted period of 

time, the Director of OWCP will issue a 

written, final decision accepting the 

recommendation of the administrative 

law judge. 

(h) The decision of the Director of 

OWCP shall be final with respect to the 

provider’s participation in the program, 

and shall not be subject to further 

review by any court or agency. 

§ 10.825 What are the effects of exclusion? 

(a) OWCP may give notice of the 

exclusion of a physician, hospital or 

provider of medical services or supplies: 

(1) All OWCP district offices; 

(2) All Federal employers; 

(3) The CMS; 

(4) The State or local authority 

responsible for licensing or certifying 

the excluded party. 

(b) Notwithstanding any exclusion of 

a physician, hospital, or provider of 

medical services or supplies under this 

subpart, OWCP shall not refuse an 

employee reimbursement for any 

otherwise reimbursable medical 

treatment, service or supply if: 

(1) Such treatment, service or supply 

was rendered in an emergency by an 

excluded physician; or 

(2) The employee could not 

reasonably have been expected to have 

known of such exclusion. 

(c) An employee who is notified that 

his or her attending physician has been 

excluded shall have a new right to select 

a qualified physician. 

§ 10.826 How can an excluded provider be 

reinstated? 

(a) If a physician, hospital, or provider 

of medical services or supplies has been 

automatically excluded pursuant to 

§ 10.816, the provider excluded will 

automatically be reinstated upon notice 

to OWCP that the conviction or 

exclusion which formed the basis of the 

automatic exclusion has been reversed 

or withdrawn. However, an automatic 

reinstatement shall not preclude OWCP 

from instituting exclusion proceedings 

based upon the underlying facts of the 

matter. 

(b) A physician, hospital, or provider 

of medical services or supplies excluded 

from participation as a result of an order 

issued pursuant to this subpart may 

apply for reinstatement one year after 

the entry of the order of exclusion, 

unless the order expressly provides for 

a shorter period. An application for 

reinstatement shall be addressed to the 

Director for Federal Employees’ 

Compensation, and shall contain a 

concise statement of the basis for the 

application. The application should be 

accompanied by supporting documents 

and affidavits. 

(c) A request for reinstatement may be 

accompanied by a request for an oral 

presentation. Oral presentations will be 

allowed only in unusual circumstances 

where it will materially aid the decision 

process. 

(d) The Director of OWCP shall order 

reinstatement only in instances where 

such reinstatement is clearly consistent 

with the goal of this subpart to protect 

the FECA program against fraud and 

abuse. To satisfy this requirement the 

provider must provide reasonable 

assurances that the basis for the 

exclusion will not be repeated. 

Subpart J—Death Gratuity 

§ 10.900 What is the death gratuity under 

this subpart? 

(a) The death gratuity authorized by 5 

U.S.C. 8102a and payable pursuant to 

the provisions of this subpart is a 

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payment to a claimant who is an eligible 

survivor (as defined in §§ 10.906 and 

10.907) or a designated alternate 

beneficiary (as defined in §§ 10.908 and 

10.909) of an employee who dies of 

injuries incurred in connection with the 

employee’s service with an Armed 

Force in a contingency operation. This 

payment was authorized by section 

1105 of Public Law 110–181 (2008). For 

the purposes of this subchapter, the 

term ‘‘Armed Force’’ means the Army, 

Navy, Air Force, Marine Corps, and 

Coast Guard. 

(b) This death gratuity payment is a 

FECA benefit, as defined by § 10.5(a) of 

this part. All the provisions and 

definitions in this part apply to claims 

for payment under this subpart unless 

otherwise specified. 

§ 10.901 Which employees are covered 

under this subpart? 

For purposes of this subpart, the term 

‘‘employee’’ means all employees 

defined in 5 U.S.C. 8101 and § 10.5 of 

this part and all non-appropriated fund 

instrumentality employees as defined in 

10 U.S.C. 1587(a)(1). 

§ 10.902 Does every employee’s death due 

to injuries incurred in connection with his 

or her service with an Armed Force in a 

contingency operation qualify for the death 

gratuity? 

Yes. All such deaths that occur on or 

after January 28, 2008 (the date of 

enactment of Public Law 110–181 

(2008)) qualify for the death gratuity 

administered by this subpart. 

§ 10.903 Is the death gratuity payment 

applicable retroactively? 

An employee’s death qualifies for the 

death gratuity if the employee died on 

or after October 7, 2001, and before 

January 28, 2008, if the death was a 

result of injuries incurred in connection 

with the employee’s service with an 

Armed Force in the theater of operations 

of Operation Enduring Freedom or 

Operation Iraqi Freedom. 

§ 10.904 Does a death as a result of 

occupational disease qualify for payment of 

the death gratuity? 

Yes—throughout this subpart, the 

word ‘‘injury’’ is defined as it is in 5 

U.S.C. 8101(5), which includes a disease 

proximately caused by employment. If 

an employee’s death results from an 

occupational disease incurred in 

connection with the employee’s service 

in a contingency operation, the death 

qualifies for payment of the death 

gratuity under this subpart. 

§ 10.905 If an employee incurs a covered 

injury in connection with his or her service 

with an Armed Force in a contingency 

operation but does not die of the injury until 

years later, does the death qualify for 

payment of the death gratuity? 

Yes—as long as the employee’s death 

is a result of injuries incurred in 

connection with the employee’s service 

with an Armed Force in a contingency 

operation, the death qualifies for the 

death gratuity of this subpart regardless 

of how long after the injury the 

employee’s death occurs. 

§ 10.906 What special statutory definitions 

apply to survivors under this subpart? 

For the purposes of paying the death 

gratuity to eligible survivors under this 

subpart, OWCP will use the following 

definitions: 

(a) ‘‘Surviving spouse’’ means the 

person who was legally married to the 

deceased employee at the time of his or 

her death. 

(b) ‘‘Children’’ means, without regard 

to age or marital status, the deceased 

employee’s natural children and 

adopted children. It also includes any 

stepchildren who were a part of the 

decedent’s household at the time of 

death. 

(1) A stepchild will be considered 

part of the decedent’s household if the 

decedent and the stepchild share the 

same principal place of abode in the 

year prior to the decedent’s death. The 

decedent and stepchild will be 

considered as part of the same 

household notwithstanding temporary 

absences due to special circumstances 

such as illness, education, business 

travel, vacation travel, military service, 

or a written custody agreement under 

which the stepchild is absent from the 

employee’s household for less than 180 

days of the year. 

(2) A natural child who is an 

illegitimate child of a male decedent is 

included in the definition of ‘‘children’’ 

under this subpart if: 

(i) The child has been acknowledged 

in writing signed by the decedent; 

(ii) The child has been judicially 

determined, before the decedent’s death, 

to be his child; 

(iii) The child has been otherwise 

proved, by evidence satisfactory to the 

employing agency, to be the decedent’s 

child; or 

(iv) The decedent had been judicially 

ordered to contribute to the child’s 

support. 

(c) ‘‘Parent’’ or ‘‘parents’’ mean the 

deceased employee’s natural father and 

mother or father and mother through 

adoption. It also includes persons who 

stood in loco parentis to the decedent 

for a period of not less than one year at 

any time before the decedent became an 

employee. 

(1) A person stood in loco parentis 

when the person assumed the status of 

parent toward the deceased employee. 

(Any person who takes a child of 

another into his or her home and treats 

the child as a member of his or her 

family, providing parental supervision, 

support, and education as if the child 

were his or her own child, will be 

considered to stand in loco parentis.) 

(2) Only one father and one mother, 

or their counterparts in loco parentis, 

may be recognized in any case. 

(3) Preference will be given to those 

who exercised a parental relationship 

on the date, or most nearly before the 

date, on which the decedent became an 

employee. 

(d) ‘‘Brother’’ and ‘‘sister’’ mean any 

person, without regard to age or marital 

status, who is a natural brother or sister 

of the decedent, a half-brother or halfsister, or a brother or sister through 

adoption. Step-brothers or step-sisters of 

the decedent are not considered a 

‘‘brother’’ or a ‘‘sister.’’ 

§ 10.907 What order of precedence will 

OWCP use to determine which survivors 

are entitled to receive the death gratuity 

payment under this subpart? 

If OWCP determines that an 

employee’s death qualifies for the death 

gratuity, the FECA provides that the 

death gratuity payment will be 

disbursed to the living survivor(s) 

highest on the following list: 

(a) The employee’s surviving spouse. 

(b) The employee’s children, in equal 

shares. 

(c) The employee’s parents, brothers, 

and sisters, or any combination of them, 

if designated by the employee pursuant 

to the designation procedures in 

§ 10.909. 

(d) The employee’s parents, in equal 

shares. 

(e) The employee’s brothers and 

sisters, in equal shares. 

§ 10.908 Can an employee designate 

alternate beneficiaries to receive a portion 

of the death gratuity payment? 

An employee may designate another 

person or persons to receive not more 

than 50 percent of the death gratuity 

payment pursuant to the designation 

procedures in § 10.909. Only living 

persons, rather than trusts, corporations 

or other legal entities, may be 

designated under this subsection. The 

balance of the death gratuity will be 

paid according to the order of 

precedence described in § 10.907. 

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Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 37945 

§ 10.909 How does an employee designate 

a variation in the order or percentage of 

gratuity payable to survivors and how does 

the employee designate alternate 

beneficiaries? 

(a) Form CA–40 must be used to make 

a variation in the order or percentages 

of survivors under § 10.907 and/or to 

make an alternate beneficiary 

designation under § 10.908. A 

designation may be made at any time 

before the employee’s death, regardless 

of the time of injury. The form will not 

be valid unless it is signed by the 

employee and received and signed prior 

to the death of the employee by the 

supervisor of the employee or by 

another official of the employing agency 

authorized to do so. 

(b) Alternatively, any paper executed 

prior to the effective date of this 

regulation that specifies an alternate 

beneficiary of the death gratuity 

payment will serve as a valid 

designation if it is in writing, completed 

before the employee’s death, signed by 

the employee, and signed prior to the 

death of the employee by the supervisor 

of the employee or by another official of 

the employing agency authorized to do 

so. 

(c) If an employee makes a survivor 

designation under § 10.907(c), but does 

not designate the portions to be received 

by each designated survivor, the death 

gratuity will be disbursed to the 

survivors in equal shares. 

(d) An alternate beneficiary 

designation made under § 10.908 must 

indicate the percentage of the death 

gratuity, in 10 percent increments up to 

the maximum of 50 percent, that the 

designated person(s) will receive. No 

more than five alternate beneficiaries 

may be designated. If the designation 

fails to indicate the percentage to be 

paid to an alternate beneficiary, the 

designation to that person will be 

invalid. 

§ 10.910 What if a person entitled to a 

portion of the death gratuity payment dies 

after the death of the covered employee but 

before receiving his or her portion of the 

death gratuity? 

(a) If a person entitled to all or a 

portion of the death gratuity due to the 

order of precedence for survivors in 

§ 10.907 dies after the death of the 

covered employee but before the person 

receives the death gratuity, the portion 

will be paid to the living survivors 

otherwise eligible according to the order 

of precedence prescribed in that 

subsection. 

(b) If a survivor designated under the 

survivor designation provision in 

§ 10.907(c) dies after the death of the 

covered employee but before receiving 

his or her portion of the death gratuity, 

the survivor’s designated portion will be 

paid to the next living survivors 

according to the order of precedence. 

(c) If a person designated as an 

alternate beneficiary under § 10.908 dies 

after the death of the covered employee 

but before the person receives his or her 

designated portion of the death gratuity, 

the designation to that person will have 

no effect. The portion designated to that 

person will be paid according to the 

order of precedence prescribed in 

§ 10.907. 

(d) If there are no living survivors or 

alternate beneficiaries, the death 

gratuity will not be paid. 

§ 10.911 How is the death gratuity 

payment process initiated? 

(a) Either the employing agency or a 

living claimant (survivor or alternate 

beneficiary) may initiate the death 

gratuity payment process. If the death 

gratuity payment process is initiated by 

the employing agency notifying OWCP 

of the employee’s death, each claimant 

must file a claim with OWCP in order 

to receive payment of the death gratuity. 

The legal representative or guardian of 

any minor child may file on the child’s 

behalf. Alternatively, if a claimant 

initiates the death gratuity payment 

process by filing a claim, the employing 

agency must complete a death 

notification form and submit it to 

OWCP. Other claimants must also file a 

claim for their portion of the death 

gratuity. 

(b) The employing agency must notify 

OWCP immediately upon learning of an 

employee’s death that may be eligible 

for benefits under this subpart, by 

submitting form CA–42 to OWCP. The 

agency must also submit to OWCP any 

designation forms completed by the 

employee, and the agency must provide 

as much information as possible about 

any living survivors or alternate 

beneficiaries of which the agency is 

aware. 

(1) OWCP will then contact any living 

survivor(s) or alternate beneficiary(ies) 

it is able to identify. 

(2) OWCP will furnish claim form 

CA–41 to any identified survivor(s) or 

alternate beneficiary(ies) and OWCP 

will provide information to them 

explaining how to file a claim for the 

death gratuity. 

(c) Alternatively, any claimant may 

file a claim for death gratuity benefits 

with OWCP. Form CA–41 may be used 

for this purpose. The claimant will be 

required to provide any information that 

he or she has regarding any other 

beneficiaries who may be entitled to the 

death gratuity payment. The claimant 

must disclose, in addition to the Social 

Security number (SSN) of the deceased 

employee, the SSNs (if known) and all 

known contact information of all other 

possible claimants who may be eligible 

to receive the death gratuity payment. 

The claimant must also identify, if 

known, the agency that employed the 

deceased employee when he or she 

incurred the injury that caused his or 

her death. OWCP will then contact the 

employing agency and notify the agency 

that it must complete and submit form 

CA–42 for the employee. OWCP will 

also contact any other living survivor(s) 

or alternate beneficiary(ies) it is able to 

identify, furnish to them claim form 

CA–41, and provide information 

explaining how to file a claim for the 

death gratuity. 

(d) If a claimant submits a claim for 

the death gratuity to an employing 

agency, the agency must promptly 

transmit the claim to OWCP. This 

includes both claim forms CA–41 and 

any other claim or paper submitted 

which appears to claim compensation 

on account of the employee’s death. 

§ 10.912 What is required to establish a 

claim for the death gratuity payment? 

Claim form CA–41 describes the basic 

requirements. Much of the required 

information will be provided by the 

employing agency when it completes 

notification form CA–42. However, the 

claimant bears the burden of proof to 

ensure that OWCP has the evidence 

needed to establish the claim. OWCP 

may send any request for additional 

evidence to the claimant and to his or 

her representative, if any. Evidence 

should be submitted in writing. The 

evidence submitted must be reliable, 

probative, and substantial. Each claim 

for the death gratuity must establish the 

following before OWCP can pay the 

gratuity: 

(a) That the claim was filed within the 

time limits specified by the FECA, as 

prescribed in 5 U.S.C. 8122 and this 

part. Timeliness is based on the date 

that the claimant filed the claim for the 

death gratuity under § 10.911, not the 

date the employing agency submitted 

form CA–42. As procedures for 

accepting and paying retroactive claims 

were not available prior to the 

publication of the interim final rule, the 

applicable statute of limitations began to 

run for a retroactive payment under this 

subpart on August 18, 2009. 

(b) That the injured person, at the 

time he or she incurred the injury or 

disease, was an employee of the United 

States as defined in 5 U.S.C. 8101(1) and 

§ 10.5(h) of this part, or a nonappropriated fund instrumentality 

employee, as defined in 10 U.S.C. 

1587(a)(1). 

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(c) That the injury or disease occurred 

and that the employee’s death was 

causally related to that injury or disease. 

The death certificate of the employee 

must be provided. Often, the employing 

agency will provide the death certificate 

and any needed medical 

documentation. OWCP may request 

from the claimant any additional 

documentation that may be needed to 

establish the claim. 

(d) That the employee incurred the 

injury or disease in connection with the 

employee’s service with an Armed 

Force in a contingency operation. This 

will be determined from evidence 

provided by the employing agency or 

otherwise obtained by OWCP and from 

any evidence provided by the claimant. 

(1) Section 8102a defines 

‘‘contingency operation’’ to include 

humanitarian operations, peacekeeping 

operations, and similar operations. 

(‘‘Similar operations’’ will be 

determined by OWCP.) 

(i) A ‘‘contingency operation’’ is 

defined by 10 U.S.C. 101(a)(13) as a 

military operation that— 

(A) Is designated by the Secretary of 

Defense as an operation in which 

members of the armed forces are or may 

become involved in military actions, 

operations, or hostilities against an 

enemy of the United States or against an 

opposing military force; or 

(B) Results in the call or order to, or 

retention on, active duty of members of 

the uniformed services under section 

688, 12301(a), 12302, 12304, 12305, or 

12406 of Title 10, chapter 15 of Title 10, 

or any other provision of law during a 

war or during a national emergency 

declared by the President or Congress. 

(ii) A ‘‘humanitarian or peacekeeping 

operation’’ is defined by 10 U.S.C. 

2302(8) as a military operation in 

support of the provision of 

humanitarian or foreign disaster 

assistance or in support of a 

peacekeeping operation under chapter 

VI or VII of the Charter of the United 

Nations. The term does not include 

routine training, force rotation, or 

stationing. 

(iii) ‘‘Humanitarian assistance’’ is 

defined by 10 U.S.C. 401(e) to mean 

medical, surgical, dental, and veterinary 

care provided in areas of a country that 

are rural or are underserved by medical, 

surgical, dental, and veterinary 

professionals, respectively, including 

education, training, and technical 

assistance related to the care provided; 

construction of rudimentary surface 

transportation systems; well drilling and 

construction of basic sanitation 

facilities; rudimentary construction and 

repair of public facilities. 

(2) A contingency operation may take 

place within the United States or 

abroad. However, operations of the 

National Guard are only considered 

‘‘contingency operations’’ for purposes 

of this subpart when the President, 

Secretary of the Army, or Secretary of 

the Air Force calls the members of the 

National Guard into service. A 

‘‘contingency operation’’ does not 

include operations of the National 

Guard when called into service by a 

Governor of a State. 

(3) To show that the injury or disease 

was incurred ‘‘in connection with’’ the 

employee’s service with an Armed 

Force in a contingency operation, the 

claim must show that the employee 

incurred the injury or disease while in 

the performance of duty as that phrase 

is defined for the purposes of otherwise 

awarding benefits under FECA. 

(4)(i) When the contingency operation 

occurs outside of the United States, 

OWCP will find that an employee’s 

injury or disease was incurred ‘‘in 

connection with’’ the employee’s 

service with an Armed Force in a 

contingency operation if the employee 

incurred the injury or disease while 

performing assignments in the same 

region as the operation, unless there is 

conclusive evidence that the employee’s 

service was not supporting the Armed 

Force’s operation. 

(ii) Economic or social development 

projects, including service on Provincial 

Reconstruction Teams, undertaken by 

covered employees in regions where an 

Armed Force is engaged in a 

contingency operation will be 

considered to be supporting the Armed 

Force’s operation. 

(5) To show that an employee’s injury 

or disease was incurred ‘‘in connection 

with’’ the employee’s service with an 

Armed Force in a contingency 

operation, the claimant will be required 

to establish that the employee’s service 

was supporting the Armed Force’s 

operation. The death gratuity does not 

cover Federal employees who are 

performing service within the United 

States that is not supporting activity 

being performed by an Armed Force. 

(e) The claimant must establish his or 

her relationship to the deceased 

employee so that OWCP can determine 

whether the claimant is the survivor 

entitled to receive the death gratuity 

payment according to the order of 

precedence prescribed in § 10.907. 

§ 10.913 In what situations will OWCP 

consider that an employee incurred injury 

in connection with his or her service with 

an Armed Force in a contingency 

operation? 

(a) OWCP will consider that an 

employee incurred injury in connection 

with service with an Armed Force in a 

contingency operation if: 

(1) The employee incurred injury 

while serving under the direction or 

supervision of an official of an Armed 

Force conducting a contingency 

operation; or 

(2) The employee incurred injury 

while riding with members of an Armed 

Force in a vehicle or other conveyance 

deployed to further an Armed Force’s 

objectives in a contingency operation. 

(b) An employee may incur injury in 

connection with service with an Armed 

Force in a contingency operation in 

situations other than those listed above. 

Additional situations will be 

determined by OWCP on a case-by-case 

basis. 

§ 10.914 What are the responsibilities of 

the employing agency in the death gratuity 

payment process? 

Because some of the information 

needed to establish a claim under this 

subpart will not be readily available to 

the claimants, the employing agency of 

the deceased employee has significant 

responsibilities in the death gratuity 

claim process. These responsibilities are 

as follows: 

(a) The agency must completely fill 

out form CA–42 immediately upon 

learning of an employee’s death that 

may be eligible for benefits under this 

subpart. The agency must complete 

form CA–42 as promptly as possible if 

notified by OWCP that a survivor filed 

a claim based on the employee’s death. 

The agency should provide as much 

information as possible regarding the 

circumstances of the employee’s injury 

and his or her assigned duties at the 

time of the injury, so that OWCP can 

determine whether the injury was 

incurred in the performance of duty and 

whether the employee was performing 

service in connection with an Armed 

Force in a contingency operation at the 

time. 

(b) The employing agency must 

promptly transmit any form CA–41s 

received from claimants to OWCP. The 

employer must also promptly transmit 

to OWCP any other claim or paper 

submitted that appears to claim 

compensation on account of the 

employee’s death. 

(c) The employing agency must 

maintain any designations completed by 

the employee and signed by a 

representative of the agency in the 

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employee’s official personnel file or a 

related system of records. The agency 

must forward any such forms to OWCP 

if the agency submits form CA–42 

notifying OWCP of the employee’s 

death. The agency must also forward 

any other paper signed by the employee 

and employing agency that appears to 

make designations of the death gratuity. 

(d) If requested by OWCP, the 

employing agency must determine 

whether a survivor, who is claiming the 

death gratuity based on his or her status 

as an illegitimate child of a deceased 

male employee, has offered satisfactory 

evidence to show that he or she is in fact 

the employee’s child. 

(e) The employing agency must notify 

OWCP of any other death gratuity 

payments under any other law of the 

United States for which the employee’s 

death qualifies. The employing agency 

also must notify OWCP of any other 

death gratuity payments that have been 

paid based on the employee’s death. 

(f) Non-appropriated fund 

instrumentalities must fulfill the same 

requirements under this subpart as any 

other employing agency. 

§ 10.915 What are the responsibilities of 

OWCP in the death gratuity payment 

process? 

(a) If the death gratuity payment 

process is initiated by the employing 

agency’s submission of form CA–42, 

OWCP will identify living potential 

claimants. OWCP will make a 

reasonable effort to provide claim form 

CA–41s to any known potential 

claimants and provide instructions on 

how to file a claim for the death gratuity 

payment. 

(b) If the death gratuity payment 

process is initiated by a claimant’s 

submission of a claim, OWCP will 

contact the employing agency and 

prompt it to submit form CA–42. OWCP 

will then review the information 

provided by both the claim and form 

CA–42, and OWCP will attempt to 

identify all living survivors or alternate 

beneficiaries who may be eligible for 

payment of the gratuity. 

(c) If OWCP determines that the 

evidence is not sufficient to meet the 

claimant’s burden of proof, OWCP will 

notify the claimant of the additional 

evidence needed. The claimant will be 

allowed at least 30 days to submit the 

additional evidence required. OWCP 

may also request additional information 

from the employing agency. 

(d) OWCP will review the information 

provided by the claimant and 

information provided by the employing 

agency to determine whether the claim 

satisfies all the requirements listed in 

§ 10.912. 

(e) OWCP will calculate the amount of 

the death gratuity payment and pay the 

beneficiaries as soon as possible after 

accepting the claim. 

§ 10.916 How is the amount of the death 

gratuity calculated? 

The death gratuity payment under 

this subpart equals $100,000 minus the 

amount of any death gratuity payments 

that have been paid under any other law 

of the United States based on the same 

death. A death gratuity payment is a 

payment in the nature of a gift, beyond 

reimbursement for death and funeral 

expenses, relocation costs, or other 

similar death benefits. Only other death 

gratuity payments will reduce the 

amount of the death gratuity provided 

in this subpart. For this reason, death 

benefits provided to the same 

employee’s survivors such as those 

under 5 U.S.C. 8133 as well as benefits 

paid under 5 U.S.C. 8134 are not death 

gratuity payments, and therefore have 

no effect on the amount of the death 

gratuity provided under this subpart. 

(a) A payment provided under section 

413 of the Foreign Service Act of 1980 

(22 U.S.C. 3973), is a death gratuity 

payment, and if a deceased employee’s 

survivors received that payment for the 

employee’s death, the amount of the 

death gratuity paid to the survivors 

under this subpart would be reduced by 

the amount of the Foreign Service Act 

death gratuity. Other death gratuities 

that would affect the calculation of the 

amount payable include but are not 

limited to: the gratuity provision in 

section 1603 of the Emergency 

Supplemental Appropriations Act for 

Defense, the Global War on Terror, and 

Hurricane Recovery, 2006 (Pub. L. 109– 

234, June 15, 2006); the $10,000 death 

gratuity to the personal representative of 

civilian employees, at Title VI, Section 

651 of the Omnibus Consolidated 

Appropriations Act of 1996 (Pub. L. 

104–208, September 30, 1996); the death 

gratuity for members of the Armed 

Forces or any employee of the 

Department of Defense dying outside 

the United States while assigned to 

intelligence duties, at 10 U.S.C. 1489; 

and the death gratuity for employees of 

the Central Intelligence Agency, at 50 

U.S.C. 403k. 

(b) The amount of the death gratuity 

under this section will be calculated 

before it is disbursed to the employee’s 

survivors or alternate beneficiaries, by 

taking into account any death gratuities 

paid by the time of disbursement. 

Therefore, any designations made by the 

employee under § 10.909 are only 

applicable to the amount of the death 

gratuity as described in paragraph (a) of 

this section. The following examples are 

intended to provide guidance in this 

administration of this subpart. 

(1) Example One. An employee’s 

survivors are entitled to the Foreign 

Service Act death gratuity; the 

employee’s spouse received payment in 

the amount of $80,000 under that Act. 

A death gratuity is also payable under 

FECA; the amount of the FECA death 

gratuity that is payable is a total of 

$20,000. That employee, using Form 

CA–40 had designated 50% of the death 

gratuity under this subpart to be paid to 

his neighbor John Smith who is still 

living. So, 50% of the death gratuity 

will be paid to his spouse and the 

remaining 50% of the death gratuity 

paid under this subpart would be paid 

to John Smith. This means the surviving 

spouse will receive $10,000 and John 

Smith will receive $10,000. 

(2) Example Two. Employee dies in 

circumstances that would qualify her for 

payment of the gratuity under this 

subpart; her agency has paid the 

$10,000 death gratuity pursuant to 

Public Law 104–208. The employee had 

not completed any designation form. 

The FECA death gratuity is reduced by 

the $10,000 death gratuity and 

employee’s spouse receives $90,000. 

(3) Example Three. An employee of 

the Foreign Service whose annual salary 

is $75,000 dies in circumstances that 

would qualify for payment of both the 

Foreign Service Act death gratuity and 

the death gratuity under this subpart. 

Before his death, the employee 

designated that 40% of the death 

gratuity under this subpart be paid to 

his cousin Jane Smith, pursuant to the 

alternate beneficiary designation 

provision at § 10.908 and that 10% be 

paid to his uncle John Doe who has 

since died. At the time of his death, the 

employee had no surviving spouse, 

children, parents, or siblings. Therefore, 

the Foreign Service Act death gratuity 

will not be paid, because no eligible 

survivors according to the Foreign 

Service Act provision exist. The death 

gratuity under this subpart would equal 

$100,000, because no other death 

gratuity has been paid, and Jane would 

receive $40,000 according to the 

employee’s designation. As John Doe is 

deceased, no death gratuity may be paid 

pursuant to the designation of a share of 

the death gratuity to him. 

■ 3. Part 25 is revised to read as follows: 

PART 25—COMPENSATION FOR 

DISABILITY AND DEATH OF 

NONCITIZEN FEDERAL EMPLOYEES 

OUTSIDE THE UNITED STATES 

Subpart A—General Provisions 

Sec. 

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37948 Federal Register / Vol. 76, No. 124 / Tuesday, June 28, 2011 / Rules and Regulations 

25.1 How are claims of Federal employees 

who are neither citizens nor residents 

adjudicated? 

25.2 In general, what is the Director’s policy 

regarding such claims? 

25.3 What is the authority to settle and pay 

such claims? 

25.4 What type of evidence is required to 

establish a claim under this part? 

25.5 How does OWCP adjudicate claims of 

non-citizen residents of possessions or 

territories? 

Subpart B—The Special Schedule of 

Compensation 

25.100 What general provisions does OWCP 

apply to the Special Schedule? 

25.101 How is compensation for disability 

paid? 

25.102 How is compensation for death of a 

non-citizen non-resident employee paid? 

Subpart C—Extensions of the Special 

Schedule of Compensation 

25.200 How is the Special Schedule applied 

for employees in the Republic of the 

Philippines? 

25.201 How is the Special Schedule applied 

for employees in Australia? 

25.202 How is the Special Schedule applied 

for Japanese seamen? 

25.203 How is the Special Schedule applied 

to non-resident aliens in the Territory of 

Guam? 

Authority: 5 U.S.C. 301, 8137, 8145 and 

8149; 1946 Reorganization Plan No. 2, sec. 3, 

3 CFR 1943–1948 Comp., p. 1064; 60 Stat. 

1095; Reorganization Plan No. 19 of 1950, 

sec. 1, 3 CFR 1943–1953 Comp., p. 1010; 64 

Stat. 1271; Secretary of Labor’s Order No. 10– 

2009, 74 FR 218. 

Subpart A—General Provisions 

§ 25.1 How are claims of Federal 

employees who are neither citizens nor 

residents adjudicated? 

This part describes how OWCP pays 

compensation under the FECA to 

employees of the United States who are 

neither citizens nor residents of the 

United States, any territory or Canada, 

as well as to any dependents of such 

employees. It has been determined that 

the compensation provided under the 

FECA is substantially disproportionate 

to the compensation for disability or 

death which is payable in similar cases 

under local law, regulation, custom or 

otherwise, in areas outside the United 

States, any territory or Canada and 

therefore a special schedule should 

apply to such cases This special 

schedule applies to any non-citizen 

non-resident Federal employee who is 

neither hired nor employed in the 

United States, Canada or in a possession 

or territory of the United States. 

Therefore, with respect to the claims of 

such employees whose injury (or injury 

resulting in death) has occurred 

subsequent to August 29, 2011, or may 

occur, the regulations in this part shall 

apply. 

§ 25.2 In general, what is the Director’s 

policy regarding such claims? 

(a) Pursuant to 5 U.S.C. 8137(a)(2), a 

special schedule is established by 

subpart B of this part that applies to any 

non-citizen non-resident Federal 

employee who is neither hired nor 

employed in the United States, Canada 

or in a possession or territory of the 

United States (hereinafter non-citizen 

non-resident employees). The special 

schedule in subpart B of this part is 

subject to the exceptions set forth in 

paragraph (b) of this section. The special 

schedule set forth in subpart B of this 

part applies to claims of such employees 

whose injury (or injury resulting in 

death) occurred on or after August 29, 

2011. 

(b) This special schedule of 

compensation established by subpart B 

of this part shall apply to non-citizen 

non-resident employees outside of the 

United States unless: 

(1) The injured employee receives 

compensation pursuant to a specific 

separate agreement between the United 

States and another government (or 

similar compensation from another 

sovereign government); 

(2) The employee receives 

compensation pursuant to the special 

schedule under subpart C for the 

particular locality, or for a class of 

employees in that particular locality; or 

(3) The employee otherwise 

establishes entitlement to compensation 

under local law pursuant to § 25.100(e). 

(c) Compensation in all cases of such 

employees paid and closed prior to 

August 29, 2011 shall be deemed 

compromised and paid under 5 U.S.C. 

8137. In all other cases, compensation 

may be adjusted to conform with the 

regulations in this part, or the 

beneficiary may by compromise or 

agreement with the Director have 

compensation continued on the basis of 

a previous adjustment of the claim. 

(d) Compensation received by 

beneficiaries pursuant to 5 U.S.C. 8137 

and the special schedule set forth in 

subpart B or as otherwise specified in 

paragraph (b) of this section is the 

exclusive measure of compensation in 

cases of injury (or death from injury) to 

non-citizen non-resident employees of 

the United States as specified in 

paragraph (a) of this section. 

(e) Compensation for disability and 

death of non-citizen non-resident 

employees outside the United States 

under this part shall in no event exceed 

that generally payable under the FECA. 

§ 25.3 What is the authority to settle and 

pay such claims? 

In addition to the authority to receive, 

process and pay claims, when delegated 

such representative or agency receiving 

delegation of authority shall, in respect 

to cases adjudicated under this part, and 

when so authorized by the Director, 

have authority to make lump-sum 

awards (in the manner prescribed by 5 

U.S.C. 8135) whenever such authorized 

representative shall deem such 

settlement to be for the best interest of 

the United States, and to compromise 

and pay claims for any benefits 

provided for under this part, including 

claims in which there is a dispute as to 

questions of fact or law. The Director 

shall, in instructions to the particular 

representative concerned, establish such 

procedures in respect to action under 

this section as he or she may deem 

necessary, and may specify the scope of 

any administrative review of such 

action. 

§ 25.4 What type of evidence is required to 

establish a claim under this part? 

Claims of non-citizen non-resident 

employees of the United States as 

specified in § 25.2(a), if otherwise 

compensable, shall be approved only 

upon evidence of the following nature 

without regard to the date of injury or 

death for which the claim is made: 

(a) Appropriate certification by the 

Federal employing establishment; or 

(b) An armed service’s casualty or 

medical record; or 

(c) Verification of the employment 

and casualty by Department of Defense 

personnel; or 

(d) Recommendation of an armed 

service’s ‘‘Claim Service’’ based on 

investigations conducted by it. 

§ 25.5 How does OWCP adjudicate claims 

of non-citizen residents of possessions or 

territories? 

An employee who is a bona fide 

permanent resident of any United States 

possession, territory, commonwealth, or 

trust territory will receive the full 

benefits of the FECA, as amended, 

except that the application of the 

minimum benefit provisions provided 

therein shall be governed by the 

restrictions set forth in 5 U.S.C. 8138. 

Subpart B—The Special Schedule of 

Compensation 

§ 25.100 What general provisions does 

OWCP apply to the Special Schedule? 

(a) The definitions of terms in the 

FECA, as amended, shall apply to terms 

used in this subpart. 

(b) The provisions of the FECA, 

unless modified by this subpart or 

otherwise inapplicable, shall be applied 

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whenever possible in the application of 

this subpart. 

(c) The provisions of the regulations 

for the administration of the FECA, as 

amended or supplemented from time to 

time by instructions applicable to this 

subpart, shall apply in the 

administration of compensation under 

this subpart, whenever they can 

reasonably be applied. 

§ 25.101 How is compensation for 

disability paid? 

Compensation for disability shall be 

paid to the non-citizen non-resident 

employee as follows: 

(a) Temporary total disability. Where 

the injured employee is disabled and 

unable to earn wages equivalent to those 

earned at the time of injury for a period 

of time less than two years, the 

employee shall receive 50 percent of the 

monthly pay during the period of such 

disability. 

(b) Temporary partial disability. 

Where the injured employee is disabled 

and unable to earn equivalent wages to 

those earned at the time of injury, but 

who is not totally disabled for work, the 

injured employee shall receive during 

the period of disability, that proportion 

of compensation for temporary total 

disability, as determined under 

paragraph (a) of this section, which is 

equal in percentage to the degree or 

percentage of physical impairment 

caused by the disability. 

(c) Permanent total disability. Where 

it is found that the injured employee is 

disabled and will be or has been unable 

to earn equivalent wages to those earned 

at the time of injury for greater than two 

years, the employee is deemed 

permanently disabled. Such employee 

shall receive a lump sum settlement 

based on compensation equaling 50 

percent of the monthly pay or a 

percentage proportionate to the extent of 

disability. The lump sum award shall be 

made by the manner prescribed by 5 

U.S.C. 8135. 

(d) Permanent partial disability. 

Where there is permanent disability 

(impairment) involving the loss, or loss 

of use, of a member or function of the 

body, the injured employee is entitled to 

schedule compensation at 50 percent of 

the monthly pay to be paid in a lump 

sum according to 5 U.S.C. 8135, for the 

following losses and periods: 

(1) Arm lost: 312 weeks’ 

compensation. 

(2) Leg lost: 288 weeks’ compensation. 

(3) Hand lost: 244 weeks’ 

compensation. 

(4) Foot lost: 205 weeks’ 

compensation. 

(5) Eye lost: 160 weeks’ 

compensation. 

(6) Thumb lost: 75 weeks’ 

compensation. 

(7) First finger lost: 46 weeks’ 

compensation. 

(8) Great toe lost: 38 weeks’ 

compensation. 

(9) Second finger lost: 30 weeks’ 

compensation. 

(10) Third finger lost: 25 weeks’ 

compensation. 

(11) Toe, other than great toe, lost: 16 

weeks’ compensation. 

(12) Fourth finger lost: 15 weeks’ 

compensation. 

(13) Loss of hearing: One ear, 52 

weeks’ compensation; both ears, 200 

weeks’ compensation. 

(14) Breast (one) lost: 52 weeks’ 

compensation. 

(15) Kidney (one) lost: 156 weeks’ 

compensation. 

(16) Larynx lost: 160 weeks’ 

compensation. 

(17) Lung (one) lost: 156 weeks’ 

compensation. 

(18) Penis lost: 205 weeks’ 

compensation. 

(19) Testicle (one) lost: 52 weeks’ 

compensation. 

(20) Tongue lost: 160 weeks’ 

compensation. 

(21) Ovary (one) lost: 52 weeks’ 

compensation. 

(22) Uterus/cervix and vulva/vagina 

lost: 205 weeks’ compensation. 

(23) Skin: 205 weeks’ compensation. 

(24) Phalanges: Compensation for loss 

of more than one phalanx of a digit shall 

be the same as for the loss of the entire 

digit. Compensation for loss of the first 

phalanx shall be one-half of the 

compensation for the loss of the entire 

digit. 

(25) Amputated arm or leg: 

Compensation for an arm or a leg, if 

amputated at or above the elbow or the 

knee, shall be the same as for the loss 

of the arm or leg; but, if amputated 

between the elbow and the wrist, or 

between the knee and the ankle, the 

compensation shall be the same as for 

the loss of the hand or the foot. 

(26) Binocular vision or percent of 

vision: Compensation for loss of 

binocular vision, or for 80 percent or 

more of the vision of an eye shall be the 

same as for the loss of the eye. 

(27) Two or more digits: 

Compensation for loss of two or more 

digits, one or more phalanges of two or 

more digits of a hand or foot may be 

proportioned to the loss of use of the 

hand or foot occasioned thereby, but 

shall not exceed the compensation for 

the loss of a hand or a foot. 

(28) Total loss of use: Compensation 

for a permanent total loss of use of a 

member shall be the same as for loss of 

the member. 

(29) Partial loss or partial loss of use: 

Compensation for permanent partial 

loss or loss of use of a member may be 

for proportionate loss of use of the 

member. 

(30) Consecutive awards: In any case 

in which there occurs a loss or loss of 

use of more than one member or parts 

of more than one member set forth in 

paragraph (d) of this section, but not 

amounting to permanent total disability, 

the award of compensation shall be for 

the loss or loss of use of each such 

member or part thereof, which awards 

shall run consecutively. 

(31) Other cases: In all other cases 

within this class of disability the 

compensation during the continuance of 

disability shall be that proportion of 

compensation for permanent total 

disability, as determined under 

paragraph (c) of this section, which is 

equal in percentage to the degree or 

percentage of physical impairment 

caused by the disability. 

(32) Compensation under paragraph 

(d) of this section for permanent partial 

disability shall be in addition to any 

compensation for temporary total or 

temporary partial disability under this 

section, and awards for temporary total, 

temporary partial, and permanent 

partial disability shall run 

consecutively. 

(e) In the event a beneficiary covered 

under subpart B can demonstrate that 

the amount payable under the special 

schedule would result in a payment that 

would be demonstrably less than the 

amount payable under the law of his 

home country, the Director retains the 

discretion to pay that amount of 

compensation under 5 U.S.C. 

8137(a)(2)(A), not to exceed the amount 

payable under FECA. To request 

benefits under this paragraph, the 

beneficiary must submit the following: 

(1) Translated copies of the applicable 

local statute as well as any regulations, 

policies and procedures the beneficiary 

avers are applicable; and 

(2) A translated copy of an opinion 

rendered by an attorney licensed in that 

jurisdiction or an advisory opinion from 

a court or administrative tribunal that 

explains the benefits payable to the 

beneficiary. 

§ 25.102 How is compensation for death of 

a non-citizen non-resident employee paid? 

If the disability causes death, the 

compensation shall be payable in the 

amount and to or for the benefit of the 

following persons: 

(a) To the undertaker or person 

entitled to reimbursement, reasonable 

funeral expenses not exceeding $800. 

(b) To the surviving spouse, if there is 

no child, 30 percent of the monthly pay 

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until his or her death or remarriage 

subject to the lump sum provisions of 5 

U.S.C. 8135. 

(c) To the surviving spouse, if there is 

a child, the compensation payable 

under paragraph (b) of this section, and 

in addition thereto 10 percent of the 

monthly wage for each child, not to 

exceed a total of 50 percent of the 

monthly pay for such surviving spouse 

and children subject to the lump sum 

provisions of 5 U.S.C. 8135. If a child 

has a guardian other than the surviving 

spouse, the compensation payable on 

account of such child shall be paid to 

such guardian. The compensation 

entitlement of any child shall cease 

when he or she dies, marries or reaches 

the age of 18 years, or if over such age 

and incapable of self-support, becomes 

capable of self-support. 

(d) To the children, if there is no 

surviving spouse, 25 percent of the 

monthly pay for one child and 10 

percent thereof for each additional 

child, not to exceed a total of 50 percent 

of the monthly pay thereof, divided 

among such children share and share 

alike subject to the lump sum provisions 

of 5 U.S.C. 8135. The compensation 

entitlement of each child shall cease 

when he or she dies, marries or reaches 

the age of 18, or if over such age and 

incapable of self-support, becomes 

capable of self-support. The 

compensation of a child under legal age 

shall be paid to its guardian, if there is 

one, otherwise to the person having the 

custody or care of such child, for such 

child, as the Director in his or her 

discretion shall determine. 

(e) To the parents, if one is wholly 

dependent for support upon the 

deceased employee at the time of his or 

her death and the other is not 

dependent to any extent, 20 percent of 

the monthly pay; if both are wholly 

dependent, 10 percent thereof to each; 

if one is or both are partly dependent, 

a proportionate amount in the discretion 

of the Director. The compensation to a 

parent or parents in the percentages 

specified shall be paid if there is no 

surviving spouse or child, but if there is 

a surviving spouse or child, there shall 

be paid so much of such percentages for 

a parent or parents as, when added to 

the total of the percentages of the 

surviving spouse and children, will not 

exceed a total of 50 percent of the 

monthly pay. These payments are 

subject to the lump sum provision of 5 

U.S.C. 8135. 

(f) To the brothers, sisters, 

grandparents and grandchildren, if one 

is wholly dependent upon the deceased 

employee for support at the time of his 

or her death, 20 percent of the monthly 

pay to such dependent; if more than one 

are wholly dependent, 30 percent of 

such pay, divided among such 

dependents share and share alike; if 

there is no one of them wholly 

dependent, but one or more are partly 

dependent, 10 percent of such pay 

divided among such dependents share 

and share alike. The compensation to 

such beneficiaries shall be paid if there 

is no surviving spouse, child or 

dependent parent. If there is a surviving 

spouse, child or dependent parent, there 

shall be paid so much of the above 

percentages as, when added to the total 

of the percentages payable to the 

surviving spouse, children and 

dependent parents, will not exceed a 

total of 50 percent of such pay. These 

payments are subject to the lump sum 

provision of 5 U.S.C. 8135. 

(g) The compensation entitlement of 

each beneficiary under paragraphs (e) 

and (f) of this section shall be paid until 

he or she, if a parent or grandparent, 

dies, marries or ceases to be dependent, 

or, if a brother, sister or grandchild, 

dies, marries or reaches the age of 18 

years, or if over such age and incapable 

of self-support, becomes capable of selfsupport. The compensation of a brother, 

sister or grandchild under legal age shall 

be paid to his or her guardian, if there 

is one, otherwise to the person having 

the custody or care of such person, for 

such person, as the Director in his or her 

discretion shall determine. 

(h) Upon the cessation of any person’s 

compensation for death under this 

subpart, the compensation of any 

remaining person entitled to continuing 

compensation in the same case shall 

remain the same so that the continuing 

compensation shall be at the same rate 

each person previously received. 

(i) In cases where there are two or 

more classes of persons entitled to 

compensation for death under this 

subpart, and the apportionment of such 

compensation as provided in this 

section would result in injustice, the 

Director may in his or her discretion 

modify the apportionments to meet the 

requirements of the case. 

(j) Compensation for death shall be 

paid where practicable in a lump sum 

pursuant to section 8135. 

(k) In the event a beneficiary eligible 

for death benefits covered under subpart 

B can demonstrate that the amount 

payable under the special schedule 

would result in a payment that would 

be demonstrably less than the amount 

payable under the law of his home 

country, the Director retains the 

discretion to pay that amount of 

compensation under 5 U.S.C. 

8137(a)(2)(A), not to exceed the amount 

payable under FECA. To request 

benefits under this paragraph, the 

beneficiary must submit the following: 

(1) Translated copies of the applicable 

local statute as well as any regulations, 

policies and procedures the beneficiary 

asserts are applicable; and 

(2) A translated copy of an opinion 

rendered by an attorney licensed in that 

jurisdiction or an advisory opinion from 

a court or administrative tribunal that 

explains the benefits payable to the 

beneficiary. 

(l) A FECA death gratuity of $65,000 

may be payable for the death of a noncitizen non-resident employee should 

the death be a result of injury incurred 

in connection with service with an 

Armed Force in a contingency operation 

as set forth in subpart J of part 10. 

Subpart C—Extensions of the Special 

Schedule of Compensation 

§ 25.200 How is the Special Schedule 

applied for employees in the Republic of the 

Philippines? 

(a) Modified special schedule of 

compensation. Except for injury or 

death of direct-hire employees of the 

U.S. Military Forces covered by the 

Philippine Medical Care Program and 

the Employees’ Compensation Program 

pursuant to the agreement signed by the 

United States and the Republic of the 

Philippines on March 10, 1982 who are 

also members of the Philippine Social 

Security System, the special schedule of 

compensation established in subpart B 

of this part shall apply, with the 

modifications or additions specified in 

paragraphs (b) through (k) of this 

section, in the Republic of the 

Philippines, to injury or death occurring 

on or after July 1, 1968, with the 

following limitations: 

(1) Temporary disability. Benefits for 

payments accruing on and after July 1, 

1969, for injuries causing temporary 

disability and which occurred on and 

after July 1, 1968, shall be payable at the 

rates in the special schedule as modified 

in this section. 

(2) Permanent disability and death. 

Benefits for injuries occurring on and 

after July 1, 1968, which cause 

permanent disability or death, shall be 

payable at the rates specified in the 

special schedule as modified in this 

section for all awards not paid in full 

before July 1, 1969, and any award paid 

in full prior to July 1, 1969: Provided, 

that application for adjustment is made, 

and the adjustment will result in 

additional benefits of at least $10. In the 

case of injuries or death occurring on or 

after December 8, 1941 and prior to July 

1, 1968, the special schedule as 

modified in this section may be applied 

to prospective awards for permanent 

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disability or death, provided that the 

monthly and aggregate maximum 

provisions in effect at the time of injury 

or death shall prevail. These maxima are 

$50 and $4,000, respectively. 

(b) Death benefits. 400 weeks’ 

compensation at two-thirds of the 

weekly wage rate, shared equally by the 

eligible survivors in the same class. 

(c) Death beneficiaries. Benefits are 

payable to the survivors in the following 

order of priority (all beneficiaries in the 

highest applicable classes are entitled to 

share equally): 

(1) Surviving spouse and unmarried 

children under 18, or over 18 and totally 

incapable of self-support. 

(2) Dependent parents. 

(3) Dependent grandparents. 

(4) Dependent grandchildren, brothers 

and sisters who are unmarried and 

under 18, or over 18 and totally 

incapable of self-support. 

(d) Burial allowance. 14 weeks’ wages 

or $400, whichever is less, payable to 

the eligible survivor(s), regardless of the 

actual expense. If there is no eligible 

survivor, actual burial expenses may be 

paid or reimbursed, in an amount not to 

exceed what would be paid to an 

eligible survivor. 

(e) Permanent total disability. 400 

weeks’ compensation at two-thirds of 

the weekly wage rate. 

(f) Permanent partial disability. 

Where applicable, the compensation 

provided in § 25.100(c)(1) through (19) 

subject to an aggregate limitation of 400 

weeks’ compensation. In all other cases, 

provided for permanent total disability 

that proportion of the compensation 

(paragraph (e) of this section) which is 

equivalent to the degree or percentage of 

physical impairment caused by the 

disability. 

(g) Temporary partial disability. Twothirds of the weekly loss of wageearning capacity. 

(h) Compensation period for 

temporary disability. Compensation for 

temporary disability is payable for a 

maximum period of 80 weeks. 

(i) Maximum compensation. The total 

aggregate compensation payable in any 

case, for injury or death or both, shall 

not exceed $8,000, exclusive of medical 

costs and burial allowance. The weekly 

rate of compensation for disability or 

death shall not exceed $35. 

(j) Method of payment. Only 

compensation for temporary disability 

shall be payable periodically. 

Compensation for permanent disability 

and death shall be payable in full at the 

time the extent of entitlement is 

established. 

(k) Exceptions. The Director in his or 

her discretion may make exceptions to 

the regulations in this section by: 

(1) Reapportioning death benefits, for 

the sake of equity. 

(2) Excluding from consideration 

potential death beneficiaries who are 

not available to receive payment. 

(3) Paying compensation for 

permanent disability or death on a 

periodic basis, where this method of 

payment is considered to be in the best 

interest of the beneficiary. 

§ 25.201 How is the Special Schedule 

applied for employees in Australia? 

(a) The special schedule of 

compensation established by subpart B 

of this part shall apply in Australia with 

the modifications or additions specified 

in paragraph (b) of this section, as of 

December 8, 1941, in all cases of injury 

(or death from injury) which occurred 

between December 8, 1941 and 

December 31, 1961, inclusive, and shall 

be applied retrospectively in all such 

cases of injury (or death from injury). 

Compensation in all such cases pending 

as of July 15, 1946, shall be readjusted 

accordingly, with credit taken in the 

amount of compensation paid prior to 

such date. Refund of compensation shall 

not be required if the amount of 

compensation paid in any such case, 

otherwise than through fraud, 

misrepresentation or mistake, and prior 

to July 15, 1946, exceeds the amount 

provided for under this paragraph, and 

such case shall be deemed compromised 

and paid under 5 U.S.C. 8137. 

(b) The total aggregate compensation 

payable in any case under paragraph (a) 

of this section, for injury or death or 

both, shall not exceed the sum of 

$4,000, exclusive of medical costs. The 

maximum monthly rate of 

compensation in any such case shall not 

exceed the sum of $50. 

(c) The benefit amounts payable 

under the provisions of the 

Commonwealth Employees’ 

Compensation Act of 1930–1964, 

Australia, shall apply as of January 1, 

1962, in Australia, as the exclusive 

measure of compensation in cases of 

injury (or death from injury) according 

on and after January 1, 1962, and shall 

be applied retrospectively in all such 

cases, occurring on and after such date: 

Provided, that the compensation 

payable under the provisions of this 

paragraph shall in no event exceed that 

payable under the FECA. 

§ 25.202 How is the Special Schedule 

applied for Japanese seamen? 

(a) General. The special schedule of 

compensation established by subpart B 

of this part shall apply as of November 

1, 1971, with the modifications or 

additions specified in paragraphs (b) 

through (i) of this section, to injuries 

sustained outside the continental 

United States or Canada by direct-hire 

Japanese seamen who are neither 

citizens nor residents of the United 

States or Canada and who are employed 

by the Military Sealift Command in 

Japan. 

(b) Temporary total disability. Weekly 

compensation shall be paid at 75 

percent of the weekly wage rate. 

(c) Temporary partial disability. 

Weekly compensation shall be paid at 

75 percent of the weekly loss of wageearning capacity. 

(d) Permanent total disability. 

Compensation shall be paid in a lump 

sum equivalent to 360 weeks’ wages. 

(e) Permanent partial disability. (1) 

The provisions of § 25.101 of this part 

shall apply to the types of permanent 

partial disability listed in paragraphs 

(d)(1) through (13) and (d)(24) through 

(29) of that section: Provided that 

weekly compensation shall be paid at 75 

percent of the weekly wage rate and that 

the number of weeks allowed for 

specified losses shall be changed as 

follows: 

(i) Arm lost: 312 weeks. 

(ii) Leg lost: 288 weeks. 

(iii) Hand lost: 244 weeks. 

(iv) Foot lost: 205 weeks. 

(v) Eye lost: 160 weeks. 

(vi) Thumb lost: 75 weeks. 

(vii) First finger lost: 46 weeks. 

(viii) Second finger lost: 30 weeks. 

(ix) Third finger lost: 25 weeks. 

(x) Fourth finger lost: 15 weeks. 

(xi) Great toe lost: 38 weeks. 

(xii) Toe, other than great toe lost: 16 

weeks. 

(2) In all other cases, that proportion 

of the compensation provided for 

permanent total disability in paragraph 

(d) of this section which is equivalent to 

the degree or percentage of physical 

impairment caused by the injury. 

(f) Death. If there are two or more 

eligible survivors, compensation 

equivalent to 360 weeks’ wages shall be 

paid to the survivors, share and share 

alike. If there is only one eligible 

survivor, compensation equivalent to 

300 weeks’ wages shall be paid. The 

following survivors are eligible for death 

benefits: 

(1) Spouse who lived with or was 

dependent upon the employee. 

(2) Unmarried children under 21 who 

lived with or were dependent upon the 

employee. 

(3) Adult children who were 

dependent upon the employee by reason 

of physical or mental disability. 

(4) Dependent parents, grandparents 

and grandchildren. 

(g) Burial allowance. $1,000 payable 

to the eligible survivor(s), regardless of 

actual expenses. If there are no eligible 

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survivors, actual expenses may be paid 

or reimbursed, up to $1,000. 

(h) Method of payment. Only 

compensation for temporary disability 

shall be payable periodically, as 

entitlement accrues. Compensation for 

permanent disability and death shall be 

payable in a lump sum. 

(i) Maxima. In all cases, the maximum 

weekly benefit shall be $130. Also, 

except in cases of permanent total 

disability and death, the aggregate 

maximum compensation payable for 

any injury shall be $51,000. This 

amount will be adjusted annually on 

March 1 in accordance with the 

percentage amount determined by the 

cost of living adjustment under 5 U.S.C. 

8146a. 

(j) Prior injury. In cases where injury 

or death occurred prior to November 1, 

1971, benefits will be paid in 

accordance with regulations 

promulgated, contained in 20 CFR parts 

1–399, edition revised as of January 1, 

1971. 

§ 25.203 How is the Special Schedule 

applied to non-resident aliens in the 

Territory of Guam? 

The special schedule of compensation 

established by subpart B of this part 

shall apply to an injury or death 

occurring on or after August 29, 2011 in 

the Territory of Guam to non-resident 

alien employees recruited in foreign 

countries for employment by the 

military departments in the Territory of 

Guam. This schedule shall not apply to 

any employee who becomes a bona fide 

permanent resident as such claims will 

be decided in accordance with § 25.5. 

Signed at Washington, DC this 8th of June, 

2011. 

Gary A. Steinberg, 

Acting Director, Office of Workers’ 

Compensation Programs. 

[FR Doc. 2011–14915 Filed 6–27–11; 8:45 am] 

BILLING CODE 4510–CH–P 

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