Claims for Compensation Under the Federal Employees' Compensation Act;
Compensation for Disability and Death of Noncitizen Federal Employees
Outside the United States; Final Rule [11/25/1998]
(See the CORRECTION,
to the Final Rule issued
12/23/99.)
(See the CORRECTION,
to the Final Rule issued
03/12/99.)
Volume 63, Number 227, Page 65283-65345[[Page 65283]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of Workers' Compensation Programs
_______________________________________________________________________
20 CFR Parts 10 and 25
Claims for Compensation Under the Federal Employees' Compensation Act;
Compensation for Disability and Death of Noncitizen Federal Employees
Outside the United States; Final Rule
[[Page 65284]]
DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 10 and 25
RIN 1215-AB07
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, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On December 23, 1997, the Department of Labor proposed
revisions to the regulations governing the administration of the
Federal Employees' Compensation Act (FECA) (62 FR 67120). The FECA
provides benefits to all civilian Federal employees and certain other
groups of employees and individuals who are injured or killed while
performing their jobs.
The proposed changes were summarized in that publication. They
contain a major revision of the medical fee schedule to include
pharmacy and inpatient hospital bills. Other significant new provisions
address suspension of benefits during incarceration and termination of
benefits for conviction of fraud against the program; changes to the
continuation of pay (COP) provisions; paying for an attendant as a
medical expense; inclusion of OWCP nurse services in the definition of
vocational rehabilitation services; clarifying the reconsideration
process; restricting entitlement to postpone oral hearings;
clarification of subpoena authority; streamlining the standards for
review of representatives' fees; provision of more detailed guidance
for claims involving the liability of a third party; and clarification
of procedures for claims filed by non-Federal law enforcement officers.
Finally, in light of comments received, the proposal to remove all
references to leave repurchase has been abandoned in favor of including
a brief mention of this practice.
EFFECTIVE DATE: January 4, 1999.
FOR FURTHER INFORMATION CONTACT: Thomas M. Markey, Director for Federal
Employees' Compensation, Employment Standards Administration, U.S.
Department of Labor, Room S-3229, 200 Constitution Avenue N.W.,
Washington, DC 20210; Telephone (202) 693-0040.
SUPPLEMENTARY INFORMATION: Proposed regulations were published in the
Federal Register on December 23, 1997 (62 FR 67120). They allowed a 60-
day period for comment, during which the Department of Labor received
timely comments from 24 parties. Thirteen were submitted by Federal
employing agencies, seven by labor organizations which represent
Federal employees, two by attorneys, one by a physician, and one by a
Department of Labor employee. Four untimely comments from Federal
employing agencies were also received; many of the points they made
were also made by other commenters.
The comments centered on time frames for use of continuation of pay
(COP), time frames for submittal of forms by agencies, and postponement
of hearing requests. None of the comments represented a profound
challenge to the proposed rules.
This final rule applies to cases where the injury or death occurred
before the effective date, but only when an initial decision on a
particular issue is made on or after the effective date. This final
rule does not apply, however, to issues decided for the first time in
one of these cases before the effective date, even when such decision
is being reviewed after a hearing before an OWCP representative, on
reconsideration before OWCP, or on appeal to the Employees'
Compensation Appeals Board (ECAB).
Several changes were made which did not result from the comments.
One is the addition of nine new OMB clearance numbers to Sec. 10.3
since publication of the Notice of Proposed Rulemaking. Another is that
Sec. 10.500 has been subdivided for clarity into four different
subsections, and the contents have been rearranged slightly. Also, the
title of subpart F has been changed to ``Continuing Benefits'', and the
title of subpart G has been changed to ``Appeals Process'' for clarity.
Several of the questions have been modified slightly for clarity, or so
that they will be understandable on their own, without reference to the
section where they appear.
Finally, after reviewing the decision of the United States District
Court for the District of Massachusetts in Jones-Booker v. United
States (C.A. No. 97cv10616-PBS, May 20, 1998), a provision is being
added as new Sec. 10.607(c). This provision will toll the running of
the one-year time limitation for requesting reconsideration during any
period for which the claimant can establish through the submission of
probative medical evidence that he or she was unable to communicate in
any way, and that his or her testimony was necessary to obtain
modification of the prior decision. Any such period is not counted as
part of the year in which a claimant has to timely request
reconsideration. To establish eligibility for such tolling, the
claimant will have the burden of proving both that he or she was unable
to communicate in any way and that his or her testimony was necessary
to establish factual matters that could not be established in any other
way.
Overall, the parties who commented on the organization of the
proposed regulations, the new question-and-answer format, and the
``plain English'' approach approved of these changes. However, one
agency stated that the question-and-answer format might well be
problematical, and that subject headings would be easier to follow.
The Department's analysis of the comments received is set forth
below. Unless otherwise stated, section numbers refer to the revised
regulations. No comments were received with respect to part 25.
Section 10.0
One labor organization asked that OWCP clarify the introduction to
the regulations at Sec. 10.0 by adding ``including an officer or
employee of an instrumentality wholly owned by the United States'' to
the first sentence. However, this same phrase already appears in the
definition of ``Employee'' at Sec. 10.5(h)(1), and it is not felt that
repeating it in Sec. 10.0 would provide any further clarification.
Therefore, this change is not being made.
Section 10.5(a)
Two labor organizations noted OWCP's efforts to streamline its
regulations and suggested dropping the term ``Compensation'' from the
first line of Sec. 10.5(a) since ``Compensation'' is defined at section
8101(12) of the FECA. While it is true that the FECA contains a general
definition of ``Compensation,'' Sec. 10.5(a) provides a more precise
definition of this term (which is used interchangeably with
``Benefits'' throughout these regulations) that takes into account the
construction given to this particular section since the FECA was first
amended to include it in 1924. Therefore, dropping the term
``Compensation'' from Sec. 10.5(a) would not be consistent with OWCP's
streamlining effort, and the suggestion is not adopted.
Two labor organizations also argued that Sec. 10.5(a) should not
include ``medical treatment'' paid for out of the Employees''
Compensation Fund since beneficiaries are entitled to medical treatment
for employment-related injuries and illnesses regardless of whether or
not they sustain any
[[Page 65285]]
disability. However, this argument ignores the fact that, as one of the
``benefits paid for from the Employees'' Compensation Fund,'' medical
treatment clearly falls within the statutory definition of
``Compensation'' set out at section 8101(12). Also, the regulatory
definition of ``Benefits or Compensation'' in use since 1987 (20 CFR
10.5(a)(6)) includes ``medical treatment'' and, as there was no intent
to change this aspect of the definition in these regulations, the
suggestion is not accepted.
Section 10.5(f)
One commenter disagreed with the dual economic and medical nature
of the definition of ``Disability'' in Sec. 10.5(f) and argued that the
definition of this word should focus solely on clinical findings.
However, such a change would be contrary to settled precedent of the
ECAB that has emphasized both the economic and medical aspects of
disability for work under the FECA. Also, the regulatory definition of
``Disability'' in use since 1987 (20 CFR 10.5(a)(17)) was essentially
identical to Sec. 10.5(f), and as there was no intent to change this
definition in these regulations, the suggestion is not adopted.
Section 10.5(g)
While one labor organization commended OWCP for providing further
helpful explanation of the term ``Earnings from employment or self-
employment'' in the definition at Sec. 10.5(g), another labor
organization asserted that ``reimbursed expenses'' are ``commonly not
considered to be income'' and asked that they be deleted from the list
of examples contained in Sec. 10.5(g)(1) because they are not paid for
``services'' as that word is used in section 8114(e) of the FECA. There
is nothing in the language referenced in section 8114(e) that would
necessarily take precedence over the general requirement in section
8106(b) of the FECA that an employee must include any ``other
advantages which are part of his earnings in employment or self-
employment and which can be estimated in money'' in his reports to
OWCP. The regulatory definition of ``Earnings from employment or self-
employment'' in use since 1987 (20 CFR 10.125(c)) has included
``reimbursed expenses'', and as there was no intent to change this
definition in these regulations, the request to delete this specific
example from the list in Sec. 10.5(g)(1) is not adopted.
Section 10.5(q)
One labor organization requested that the word ``by'' in the
definition of ``Occupational disease or illness'' at Sec. 10.5(q) be
changed to ``in'' as it appeared in the prior regulatory definition in
use since 1987. However, using the word ``in'' would not adequately
convey the requirement in section 8101(5) of the FECA that occupational
diseases or illnesses be ``proximately caused by the employment''
(emphasis added) rather than merely occurring during or ``in'' a period
of employment in order to be compensable. Therefore, while there was no
intent in these regulations to change the prior definition of
``Occupational disease or illness'' in any significant way, the
requested change would not clarify Sec. 10.5(q) in a manner consistent
with the FECA, and it is therefore not adopted.
Section 10.5(x)
One Federal agency and two labor organizations expressed concern
about the intended effect of the word ``material'' in the definition of
``Recurrence of disability'' and requested further clarification from
OWCP. After considering the practical impact of the word ``material''
on the definition of this term, it does not appear that this particular
word adds any further precision to Sec. 10.5(x), and therefore it is
deleted.
One labor organization suggested that confusion might result from
the use of the term ``intervening injury'' in Sec. 10.5(x) given the
precise meaning of this term in the adjudication of claims for
consequential injuries. However, since the context of Sec. 10.5(x)
makes it clear that the term ``intervening injury'' merely refers to a
type of work stoppage that is not due to a ``spontaneous change in a
medical condition,'' and there was no intent to limit this term to the
meaning it has with respect to consequential injuries, modification of
this particular term is not warranted.
The same labor organization also suggested that the reductions-in-
force referred to Sec. 10.5(x) as not resulting in recurrences of
disability be limited to ``officially mandated'' actions. As the agency
responsible for adjudicating FECA claims for the entire Federal
workforce, OWCP must be able to rely upon employers (and claimants) to
advise it of any relevant and pertinent personnel actions that might
have some bearing on the outcome of a FECA claim. OWCP has neither the
resources nor the expertise to ascertain whether reductions-in-force
are ``officially mandated'' (presumably, this phrase is equivalent to
``duly authorized''), and must leave disputes about individual
reductions-in-force to be resolved in the proper forum. Moreover, the
words ``general'' or ``officially mandated'' add nothing to the sense
of this section or its legal force. Under these circumstances, the
requested modification of ``reductions-in-force'' would not be workable
and is therefore not adopted.
Finally, two Federal agencies suggested that language be added to
Sec. 10.5(x) to highlight that a ``Recurrence of disability'' does not
occur after an employee recuperates from surgery for an employment-
related condition or injury if he or she has no entitlement to monetary
benefits for refusing an offer of suitable work. Another commenter
disagreed with the concept of recurrences altogether. This group of
comments about the effect of changes in an employee's accepted medical
condition indicates that it would be helpful to add another definition
to answer the concerns raised. Therefore, Sec. 10.5 is revised to add a
new Sec. 10.5(y), ``Recurrence of medical condition'', and subsequent
paragraphs are renumbered accordingly.
Section 10.5(dd)
One labor organization suggested that a portion of the definition
of ``Temporary aggravation'' in Sec. 10.5(cc) (renumbered Sec. 10.5(dd)
in accordance with the revision noted above) be changed from ``caused
that condition'' to ``caused that preexisting condition.'' This same
organization also suggested that the second part of this section be
changed from ``no greater impairment than existed prior to the
employment injury'' to ``no greater impairment or disability than
existed prior to the aggravation.'' The first wording change is
redundant, given the context, and the second wording change would
modify the sense of the definition in use since 1987 (20 CFR
10.5(a)(18)), which the program had no intent to change. For these
reasons, the suggested changes are not adopted.
Section 10.5(ee)
One Federal agency assumed that the proposed definition of
``Traumatic injury'' in Sec. 10.5(dd) (renumbered Sec. 10.5(ee) in
accordance with the revision noted above) differed from the prior
regulatory definition of this term in that it now included the phrase
``external force,'' and requested further clarification regarding the
meaning of this phrase. However, the definition of ``Traumatic injury''
has included the phrase ``external force'' since 1975 and no further
definition of this phrase is required since it does not represent an
[[Page 65286]]
attempt to change the existing definition.
Section 10.6
One Federal agency felt that the statement that ``certain other
benefits are payable'' in Sec. 10.6(b) was not consistent with the
language of section 8148(b)(3) of the FECA, which provides OWCP with
discretionary authority in this area, and should be changed to
``certain other benefits may be payable * * *.'' We agree that the
statute does give OWCP discretion in this matter, and Sec. 10.6(b) is
therefore revised consistent with the suggestion.
The same agency also felt that Sec. 10.6(c) should refer only to
persons who live in the beneficiary's household ``and are'' dependent
on the beneficiary for support. Adoption of this idea would eliminate
compensation payable for dependents living in another household through
no fault of their own, e.g., minor children whose non-custodial parent
is a beneficiary. In any event, this interpretation of the term
``dependent'' does not conform to the statutory test for dependency
contained in section 8110(a) of the FECA, and the suggested revision is
not adopted.
Finally, this agency suggested addition of a means test for
dependents to this section and to Sec. 10.405. The FECA contains no
basis for such a measure.
Section 10.7
Three agencies commented on the use of Form CA-3, two stating that
they would like to see continued use of the form, and one stating that
there should be some way to report return to duty in its place. If the
form is not to be required, one agency said that it should be removed
from the list. On balance, OWCP does not believe that use of the form
should be required, since agencies routinely notify the district
offices when employees return to work. Form CA-3 is therefore being
removed from the list. However, OWCP is looking into alternative means
of collecting the information requested on this form.
One agency inquired about the purpose of Form CA-12, and another
suggested that it simply be deleted from the list. A labor organization
suggested that its purpose be clarified. OWCP uses this form to obtain
reports of dependents in death cases. As the form is used exclusively
by OWCP, and employers have no need to stock it, it is being removed
from the list.
Two employee organizations suggested that this section include a
statement that employers may not modify forms prescribed by OWCP, or
use substitute forms. A statement to that effect is being added to
paragraph (a).
Forms CA-7a and CA-7b have been added to the list (see the comments
concerning leave buy-back at the end of this analysis).
Sections 10.10, 10.11, and 10.12
Two agencies commented on the statement that all records related to
claims filed under the FECA are covered by the Government-wide system
of records established by the Department of Labor. More specifically,
they stated that an employer generates and maintains a variety of
records systems in connection with claims filed under the FECA. The
agencies suggested that Sec. 10.10 be revised to provide that DOL/GOVT-
1 covers only those records whose primary purpose is to generate,
record or report data required by OWCP in its adjudication of claims.
All other records an agency may generate as a result of a claim, such
as those needed for personnel actions, payroll actions, safety records
and investigative reports, should be subject only to the agency's
Privacy Act regulations.
Similar comments were submitted to OWCP in connection with its
proposal to amend former Sec. 10.12 of the FECA regulations. In the
final rule promulgated in the Federal Register on October 22, 1998,
OWCP concluded that all records collected because a claim was filed
seeking benefits under the FECA, including copies of records maintained
by the employing agency, were official records of OWCP and, with one
limited exception, covered by DOL/GOVT-1.
OWCP recognized, however, that a record may be created to satisfy
two or more purposes, and therefore may be covered by other systems of
records even though the subject matter of the document relates to an
on-the-job injury sustained by a Federal employee. Thus, for example,
records collected by an agency as part of a safety, personnel, or
criminal investigation conducted pursuant to statutory or regulatory
authority other than the FECA would not be covered by DOL/GOVT-1,
unless they are submitted by the employee or the agency to OWCP for
consideration in connection with the FEC claim. Readers are directed to
the comments set forth at 63 FR 56752.
As noted above, the Department's proposed amendments to former
Sec. 10.12 have been adopted as a final rule. To ensure consistency,
the provisions of that rule are being included in this publication.
With respect to Sec. 10.12, a commenter alleged that he had
experienced difficulty obtaining copies of case records from OWCP and
recommended that this provision be revised to include a time
limitation. The Department of Labor's regulations at 29 CFR part 71
contain the pertinent time limitations applicable to Privacy Act
requests, and repeating them in these regulations would serve no useful
purpose.
The same commenter also suggested that Sec. 10.12 be revised to
require OWCP to suspend the adjudication process until it complies with
a request for copies under this section, and also to provide claimants
with an opportunity to ``review and respond to the final decision after
being provided with the requested documents.'' However, there is no
reason given to support the recommendation that case adjudication
should be interrupted until OWCP responds to a request under this
provision, and the time periods within which claimants can exercise
their appeal rights are set out in either the FECA itself or the ECAB's
regulations and cannot be altered in these regulations. Accordingly,
this second group of suggested revisions to Sec. 10.12 have also not
been made.
Section 10.16
One Federal agency requested the addition of a sentence at the end
of Sec. 10.16(a) to ``clarify'' that OWCP both cooperates with and
supports the Department of Justice's efforts to enforce the criminal
provisions that apply to claims under the FECA. However, OWCP already
cooperates with and supports these efforts to vigorously enforce the
criminal provisions referred to in Sec. 10.16(a). Therefore, since the
addition of an essentially hortatory sentence will not ``clarify''
OWCP's policy any further, the suggestion is not adopted.
One labor organization suggested deleting the phrase ``for making a
false report'' from the question asked by Sec. 10.16 to clarify that
one of the criminal provisions referenced in this section, 18 U.S.C.
1922, applies to employer actions that wrongfully impede a claim. Since
the question asked by proposed Sec. 10.16 refers only to penalties that
arise from filing a false report, it is revised consistent with the
suggestion.
The same labor organization also suggested that a new subsection
(c) be added to Sec. 10.16 to further clarify that criminal penalties
apply to actions by employers that wrongfully impede a claim. However,
Sec. 10.16(a) already lists 18 U.S.C. 1922 as one of the criminal
provisions that can apply in connection with a claim under the FECA, so
the addition of a new subsection to address this one provision is not
seen as necessary. Instead, this subsection is
[[Page 65287]]
revised to clarify that criminal penalties also apply to actions of
employers that wrongfully impede a claim.
Section 10.17
One Federal agency inquired whether the forfeiture of benefits
provided for in Sec. 10.17 applied to both Federal and State crimes and
requested clarification if that was indeed the case. In light of the
fact that section 8148(a) of the FECA refers to any ``Federal or State
criminal statute,'' Sec. 10.17 is revised consistent with the
suggestion. The same agency also requested that a reporting requirement
be added to this section so beneficiaries would have to inform OWCP of
their convictions, and such a requirement will in fact be added to Form
CA-1032.
Section 10.18
One Federal agency asked whether benefits inadvertently paid to an
incarcerated beneficiary would be considered an overpayment of
compensation, and also asked whether the forfeiture described in
Sec. 10.18(a) would apply to a period of time already served prior to
conviction that is later included in the sentence of a convicted felon.
As for the overpayment inquiry, an incarcerated felon is not entitled
to compensation during the period of his or her incarceration, and
therefore any compensation paid to such an individual would clearly
constitute an overpayment of compensation under section 8129 and would
be recoverable as such.
With respect to the possible retroactive application of any such
forfeiture, section 8148(b)(1) specifies the potential range of these
forfeitures by providing that ``no benefits * * * shall be paid or
provided to any individual during any period'' of incarceration, not
for any period of incarceration. This temporal limitation means that
the forfeiture provided for by section 8148(b)(1) of the FECA will
result only in a cessation of current payments that would otherwise
have been made ``during'' a period of incarceration based on a felony
conviction, and will not also result in a retroactive forfeiture for a
period of time already served prior to conviction if subsequently
included in the sentence.
Four Federal agencies objected to OWCP's blanket decision in
Sec. 10.18(b) to exercise the discretion granted it by section
8148(b)(3) of the FECA in such a way as to require the payment of
benefits to eligible dependents of all incarcerated beneficiaries,
since this is a ``benefit'' that was not available to family members of
uninjured Federal employees incarcerated for felony convictions. One of
these agencies wanted OWCP to restrict payments of this sort to
dependents of felons who are incarcerated for periods of up to six
months only, while two of the four agencies complained that there would
be ``no reduction in compensation benefits'' in certain situations
under Sec. 10.18(b).
OWCP's policy is consistent with both the remedial aspect of the
FECA and Congress's decision in section 8148(b)(3) to provide OWCP with
the discretion necessary to make these types of payments. Also, these
comments include no recognition that OWCP has exercised this discretion
in such a way that these payments to dependents will never exceed 75%
of the incarcerated felon's gross current entitlement (which is less
than their monthly pay), and will therefore always result in a
reduction of compensation benefits. To clarify matters, Sec. 10.18(b)
is revised to point out that dependents under this paragraph will not
be paid the same amount of compensation as other dependents.
One of these four Federal agencies also requested that a reporting
requirement be added to this section so incarcerated felons would have
to inform OWCP when they were incarcerated, and such a requirement will
be added to Form CA-1032.
Section 10.100
With respect to paragraph (b)(1), one agency requested some
examples of verbal notifications of injury, asking specifically what
would happen if an employee claimed to have told a supervisor that an
injury occurred, but the supervisor died before the facts could be
determined. In practice, verbal notification very seldom forms the
basis for a claim. In problematic situations such as the one cited,
OWCP would need to explore the surrounding circumstances and make a
finding consistent with all of the evidence. Since such situations are
so individual in nature, as well as quite rare in occurrence, OWCP does
not believe that a fuller discussion of this matter in the regulations
is warranted.
A commenter objected to the three-year time limit, which is set by
law. A modification to it would require a change to the FECA itself.
Sections 10.101 Through 10.106
An employer stated that proposed Sec. 10.103 is redundant, since it
essentially repeats the contents of proposed Sec. 10.101. This point is
well taken. The positions of proposed Sec. 10.102 and Sec. 10.101 have
been reversed, the title of proposed Sec. 10.101 (now Sec. 10.102) has
been reworded, and proposed Sec. 10.104 through Sec. 10.106 have been
renumbered Sec. 10.103 through Sec. 10.105. (The suggestion from a
labor organization that the heading in Sec. 10.103 be rephrased to
include only compensable injuries therefore becomes moot). The
following comments refer to the provisions as renumbered.
Sections 10.100(b)(3), 10.101(a), and 10.105(a)
Three labor organizations objected to the provision allowing for
withdrawal of claims on the grounds that employers may pressure
employees to drop claims. While the program continues to believe that
there are valid reasons for retaining this provision, the text of
Sec. 10.117(b) has been modified to prohibit employers from compelling
or inducing employees to withdraw claims.
Two agencies suggested that language be added to Sec. 10.100(b)(3)
to indicate that any COP granted to an employee after a claim is
withdrawn must be charged to sick leave, annual leave or leave without
pay as chosen by the employee. This suggestion has been adopted with
respect to annual or sick leave, and the last part of the sentence has
been reworded in accordance with Sec. 10.223, which says that COP paid
in error may be considered an overpayment of pay consistent with 5
U.S.C. 5584.
One agency asked about the implications of withdrawal of cases
which were closed ``short form'', on the basis that OWCP does not
formally ``determine eligibility for benefits'' in these cases. While
no case-specific determination is made in these cases, eligibility has
been established using pre-determined criteria, and the program does
not believe that the proposed language compromises the ability to
withdraw a case which is closed ``short form''. Should this happen, any
monies paid for medical care would be declared an overpayment, which
would be handled according to the usual procedures.
Section 10.101 (b) and (c)
A labor organization stated that, because latent conditions may
result from traumatic injuries, the discussion of timeliness with
respect to latent conditions should not appear solely in the paragraph
dealing with occupational disease. The point is well taken, and the
language of paragraph (c) is being added to Sec. 10.100 as new
paragraph (c). The organization also favors removing the word
``injurious'' from the first sentence of paragraph (b). As the concept
of ``injury'' is integral to workers'
[[Page 65288]]
compensation claims, OWCP believes that the use of this word is
appropriate.
Section 10.102
A labor organization suggested that the heading be rephrased to
include only compensable injuries. When a Form CA-7 is filed, OWCP has
not necessarily determined the compensability of the claim. The
suggested change would therefore be unnecessarily restrictive and
confusing.
Section 10.102(a)
One agency suggested that this section be amended to include a
statement that Form CA-7 is not needed during the initial period of
disability, which is covered by COP. The first sentence is being
modified to clarify this point.
A labor organization states that the requirement to submit Form CA-
7 no more than 14 days after pay stops suggests a legal time limit
which a reader might confuse with the time limits specified by the FECA
for making claim for compensation, which are described in
Sec. 10.100(b). Section 10.101(a) is exclusively concerned with the
mechanics of filing a particular form, and makes no reference to time
limitations under the FECA. OWCP does not believe that readers will be
misled by the wording of this section when it is read in context.
Section 10.102(b)(3)
One agency asked for clarification as to whether the medical
evidence should be submitted to the employer or to OWCP. As OWCP is the
proper recipient, this paragraph has been changed to so state. The
agency also stated that the employee should be required to provide the
medical evidence to the employer. OWCP strenuously disagrees, as it is
the adjudicator of claims for compensation and employers do not have a
global need for medical reports supporting such payments. The agency
may, however, obtain copies of such medical evidence directly from
OWCP. Therefore, this change has not been made.
Section 10.103
One agency proposed that Form CA-7 always be required to file
claims for schedule awards, as they are tracked for timely processing
and letters are not, and a request for a schedule award conveyed in a
letter might be overlooked. While this suggestion has merit, it does
not take into account that schedule awards are initiated by claims
personnel as well as by claimants, or that a schedule award may be
claimed whether or not the employee is receiving compensation for
disability. Given the variety of ways in which a claim for a schedule
award may originate, OWCP does not think it is prudent to restrict the
method of filing the claim to Form CA-7.
One employee organization noted that the phrase ``compensated
according to the schedule'' is redundant. The phrase is being removed
and the word ``such'' is being added before ``impairment'' to ensure
that the meaning of the paragraph is clear.
Section 10.104
A commenter objected to the concept of recurrences. Removal of this
concept would require a change to the FECA itself.
Section 10.104(a)
An agency desired clarification of whether an employee must both
lose time from work and incur a wage loss for the submittal of a Form
CA-2a to be necessary. This in fact is the case, and no change is made
to this paragraph.
Another agency noted that this section addresses only recurrences
of disability, and does not consider recurrences of medical conditions
(although Form CA-2a is designed to claim both). This agency proposed
adding a phrase to the end of the first sentence to address recurrences
of medical conditions, and this change has been made.
Three agencies and a labor organization noted a contradiction
between a statement in this section and a statement in Sec. 10.207(a),
with respect to whether a Form CA-2a, Notice of Recurrence, must be
filed during the COP period. One agency noted that submittal of the
form is a workload item both for the employer and for OWCP, while
another agency noted OWCP's comment in the Preamble to the Proposed
Rule that it is difficult for OWCP to intervene in cases when it does
not know that time loss is occurring. The statement in Sec. 10.207(a)
is correct, and the second sentence of proposed Sec. 10.105(a) (now
Sec. 10.104(a)) has been removed.
A labor organization suggested rewording the sentence addressing
situations where a Form CA-2a need not be filed. From the suggested
text it is clear that three situations (new traumatic injuries, new
occupational diseases, and new events contributing to already-existing
occupational diseases), rather than the two specified in the proposed
rule, need to be addressed in this regard, and the paragraph has been
reworded accordingly.
Section 10.104(b)
An agency asked whether the statement accompanying Form CA-2a is to
be submitted as a separate narrative, since the information listed in
this paragraph is also listed on Form CA-2a. The paragraph is being
reworded so that it refers to the specific requirements stated on Form
CA-2a, just as Sec. 10.104(b)(2) refers to specific requirements stated
on Form CA-2a with reference to the submittal of a medical report.
Section 10.105(a)
A labor organization suggested that this section be reworded to
refer to the claimant as the ``survivor claimant'' throughout. As the
referent changes from ``survivor'' to ``claimant'' in the middle of the
paragraph, different wording would clearly be desirable. Therefore,
``claimant'' has been changed to ``survivor'' both in this paragraph
and in paragraph (c). The point that SSNs are to be provided for all
survivors on whose behalf benefits are being claimed has been
clarified, though this issue was not raised by the labor organization.
Section 10.105(d)
A labor organization suggested that the first sentence of this
paragraph, which parallels the language of section 8122(c), be expanded
to include occupational diseases, and this change has been made.
However, the meaning of the statutory text has not been expanded as
suggested, by changing ``the same injury'' to ``the same compensable
condition''.
The organization also proposed that this section address the
entitlement of a survivor to the remainder of a schedule award after an
employee dies. That is not the subject of this section, however, and
its inclusion here would not be germane.
The organization also asked what provision of the FECA bars a claim
for disability which is not filed while the employee is alive. In Anna
Palestro (Vincent Palestro), 15 ECAB 241 (1964), the Employees'
Compensation Appeals Board established that an individual must be alive
to claim benefits for disability. The only provision for payments to
carry over from a disability claim after death is found in section
8109.
Section 10.110 (a) and (b)
Nine employing agencies, one employee organization, and one other
commenter objected to the reduction of time for submitting Forms CA-1
and CA-2 from 10 to five days. Many reasons were cited for this
objection.
[[Page 65289]]
Practical concerns included observations that decentralized
operations make it difficult to meet current time standards, much less
tightened ones, and that delivery by the Postal Service can take five
days. Also, injuries occurring on a night shift or weekend cannot
always receive administrative attention until the next day, when the
employee and/or witnesses may not be available; a five-day time frame
may result in incomplete and/or inaccurate submittals of information;
the quality of claims review by employers might suffer; and the
proposed standards would be difficult to enforce.
With respect to traumatic injury cases, it was stated that a five-
day period for submittal would be at variance with the 10-day period
allowed employees to produce prima facie evidence of disability. It was
further stated that, given that OWCP closes most traumatic injury cases
``short form'', and OWCP nurses are not assigned unless and until a
Form CA-7 is submitted, the advantage of a five-day period over a 10-
day period was not evident.
With respect to occupational disease cases, it was stated that 15
days should be allowed for submittal of Forms CA-2 for former
employees, on the basis that it takes more than 10 days to compile even
minimal information for these people. This longer time period would be
consistent with the longer time frames OWCP allows for developing and
adjudicating claims for occupational disease.
Concerns about the effect on employer morale included the
observations that while a reduced time period is a worthy goal, less
than half of claims submitted Government-wide meet the 10-day goal now;
that employers trying to improve their performance in this area would
be subject to criticism for inability to comply with this time limit;
and that reducing the time limit would change employers' focus from the
needs of injured employees to the need to meet the regulatory
requirements.
As a related matter, an employer predicted with respect to
Sec. 10.117 that a five-day submittal requirement would result in more
erroneous controversions, or more controversions after the initial
submittal. This employer juxtaposed the five-day period to the 30-day
period allowed for controversion, but this juxtaposition differs little
from that presented by the current requirement to submit notices of
injury within 10 days. Also, there is a difference between
controverting the case, which can be done quickly, and providing
supporting evidence, which may in fact take more time.
Finally, Sec. 10.110(b) indicates that the employing agency will
``transmit'' the completed form to OWCP (as does Sec. 10.113(c)). The
word ``transmit'' is used specifically to allow for electronic
transmission of forms. It was suggested that a five-day time frame
would be more appropriate when electronic transmission is a reality. It
is this argument which seemed most salient, and given the evolutionary
nature of the program's electronic data processing efforts, the
proposal to reduce the number of days allowed for submittal from 10
working days to five calendar days will be set aside until OWCP has the
capacity to receive the notices in electronic format from all agencies.
At that time OWCP will revisit this issue from the regulatory
standpoint. The 10-day submittal period is very much within the norm by
comparison with workers' compensation programs in the States and the
District of Columbia. Nineteen states also set a 10-day submittal
period, while 19 states set a shorter period and 13 states set a longer
one.
A commenter stated that the employer cannot know if ``the need for
more than two appointments'' as stated in Sec. 10.110(b)(3) will
develop, and suggests a more general rewording. The program has
followed this practice for a number of years, and it has proven to be
quite serviceable. Therefore, OWCP does not believe that a change is
warranted.
Two labor organizations suggested that the employer be required to
furnish the employee with a copy of both sides of Form CA-1 or CA-2
when the employer completes its portion of the form. A phrase to this
effect is being added.
Section 10.111
Concerning paragraph (a), a labor organization suggested that
language be added to explicitly require the employer to advise the
employee of his or her rights under the FECA, as the current
regulations provide at Sec. 10.106(a). Employers are required at
various places in these regulations to provide specific information and
forms to injured workers, and inclusion of a general statement is
superfluous.
Concerning paragraph (b), an agency suggested that the time frame
for submitting Form CA-7 to OWCP remain as stated in current
Sec. 10.106(b), which allows for submittal by the tenth calendar day of
wage loss rather than during the COP period. The proposed regulation
represents long-standing policy in accordance with guidance first
issued by FPM Letter 810-6 in May 1985. OWCP does not believe that this
policy needs to be changed.
Concerning paragraph (c), three agencies objected to the five-day
time frame for submitting Form CA-7. However, this time frame is the
same as that found in the current regulations, and the program is
striving to shorten the time frames for submittal of notices of injury
and claims for compensation. Therefore, OWCP believes that it would be
counterproductive to specify a period greater than the five days
currently allowed for submittal of claim forms.
One employee organization suggested that the time frame be
expressed as calendar days, rather than working days, to be consistent
with Sec. 10.110(a). As the latter section will be changed to read ``10
working days'' (see comments above), the wording in Sec. 10.111(c) will
remain ``working days'' as well.
Section 10.112
Two agencies objected to the five-day time frame for submitting
Form CA-8. As noted in the comments about Sec. 10.111(c) above,
however, this time frame is the same as the one found in the current
regulations, and the program is striving to shorten the time frames for
submittal of claims for compensation. Here, too, the program believes
that it would be counterproductive to specify a period greater than the
five days currently allowed for submittal of claim forms.
As with Sec. 10.111(c), one employee organization suggested that
the time frame be expressed as calendar days, rather than working days,
to be consistent with Sec. 10.110(a). As the latter section will be
changed to read ``10 working days'' (see comments above), the wording
in Sec. 10.112(b) will remain ``working days'' as well.
Section 10.115
Current Sec. 10.104 requires the employee to submit medical
evidence in all cases. One agency stated that this requirement is not
clearly enunciated in the proposed regulations, in spite of specific
references in proposed Secs. 10.210, 10.101, and 10.105, and suggested
a change to proposed Sec. 10.115. The program concurs, and a sentence
is being added to clarify this point.
A commenter recommended that Forms CA-1, CA-2, and CA-2c (perhaps
CA-2a was intended) be combined, and that Forms CA-5 and CA-5b be
combined, and that Forms CA-7, CA-8, and CA-12 be combined. Each of
these forms serves a specific purpose and is accompanied by specific
instructions. Any of the combinations suggested would result in much
longer forms which would be more difficult to
[[Page 65290]]
use and understand, both for employees and employers.
A labor organization objected to the removal of the language found
at current Sec. 10.110(a) concerning the employee's burden of proof,
and suggested that it be restored. Most of the material in the current
rule is covered in proposed Sec. 10.115, but the sentences pertaining
to the belief of the claimant and emergence of a condition during a
period of Federal employment with respect to causal relationship have
been added to proposed Sec. 10.115(e), and the latter part of that
paragraph as proposed has been relettered (f). Also, a statement that
the claimant must establish the five basic requirements of the claim to
meet his or her burden of proof has been added to the introductory
paragraph of this section.
Section 10.117
One agency read this section as applying only to occupational
disease claims, as this is the subject of the section immediately
preceding it, and proposed that Sec. 10.117 be retitled to make clear
that it applies to both traumatic injuries and occupational diseases.
OWCP concurs, and this change has been made.
The same agency proposed a new paragraph providing that ``OWCP will
promptly respond'' to an agency's objection to acceptance of a claim,
and also that the agency and the claimant may review each other's
responses to the agency's objections. Section 10.119 already addresses
OWCP's responsibility to advise all of the parties to the claim when a
claim is contested, and the remainder of this suggestion would add
another layer of review by claimants and agencies. For these reasons
OWCP has not adopted this suggestion.
One labor organization suggested that the last sentence of
paragraph (b) be modified to include withdrawal of a claim. OWCP
concurs with this suggestion and believes that it will address the
issues raised with respect to Secs. 10.100(b)(3), 10.101(a), and
10.105(a) (see the comments above with respect to these sections).
Section 10.118
One employee organization suggested that the language which appears
in current Sec. 10.140 with respect to the non-adversarial nature of
proceedings under the FECA be added to this section. OWCP agrees that
it should appear, but as this language applies to many aspects of
claims processing, it is being added to Sec. 10.0.
Section 10.119
An agency made two comments about delayed controversion which
apparently flowed from the proposal to reduce the number of days
allowed for filing notices of injury and occupational disease from 10
to five days. It asked whether OWCP would provide written explanation
of an acceptance if the agency contested the claim within 30 days of
receiving the notice from the claimant, even if the claim was not
contested on the notice itself. OWCP will in fact provide such written
explanation, and this section has been modified accordingly.
Section 10.121
Two employee organizations suggested that the phrase ``up to'' be
removed, so that employees will always have 30 days to respond to a
request for information. OWCP concurs, and the language of the current
Sec. 10.110(b) regulation is being retained in this regard.
Section 10.127
One employee organization suggested that the word ``should'' in the
second sentence be changed to ``will'', both to ensure that the
employee's representative is properly notified and to be consistent
with the language in the last sentence. This change has been made.
Section 10.200
One agency requested amplification of when an agency can make
preliminary determinations on an employee's entitlement to COP other
than in the situations described in Sec. 10.220 and Sec. 10.221.
Another agency suggested that the proposed language did not make it
clear enough that the employing agency must pay COP, even while
controverting it, except for certain delineated reasons. A labor
organization also suggested clarifying language in this regard.
The policy behind the proposed rule was and remains that there are
no circumstances under which an agency can refuse to pay COP, except
for those listed in Sec. 10.220 and Sec. 10.221. The confusion and
doubt expressed in the comments, however, pointed to a need for
clarification. OWCP found language suggested by an employing agency to
be helpful in this regard and changed Sec. 10.200(b) accordingly.
Moreover, in paragraph (a), the phrase ``workers'' compensation
benefits'' has been changed to ``wage loss benefits'' to make the
meaning more clear. Finally, paragraph (e) lacks the words ``employing
agency's'' before the word ``premises''. This oversight has been
corrected.
Sections 10.205 and 10.207
These sections elicited the most comments with respect to COP (six
and seven, respectively). These sections propose that, to use COP:
Disability must either (1) begin within 30 days after the date of
injury (Sec. 10.205(a)(3)); or (2) recur within 30 days after the first
return to work (Sec. 10.207(c)).
One agency objected to shortening the time frame for commencing COP
after suffering a recurrence of disability, and noted that since a Form
CA-2a was required, OWCP would be put on notice of the recurrence. That
agency also pointed out that neither the current nor the proposed rules
address the situation where an employee returns to work but takes
intermittent COP for medical appointments only, and it suggested that a
new section be added to specifically allow for this. COP is
appropriately used for medical appointments, and while OWCP does not
believe a separate section is needed, a phrase to this effect has been
added to Sec. 10.205(a)(1).
Finally, that agency also suggested that employees should document
these medical visits. Since bills will be submitted to OWCP for any
medical treatment and the dates of treatment will be specified on these
bills, no additional documentation will be required.
Six labor organizations addressed the reduction in the time period
for commencing COP in both Sec. 10.205 and Sec. 10.207. One
organization noted that disability may not begin right away because,
for example, of difficulty in scheduling surgery, and that the
restriction in both sections was contrary to the remedial purpose of
COP. Another noted that complete healing following surgery may take
longer than the 30-day time frame would allow, and suggested that a
special extension to 180 days be allowed where COP is used for medical
appointments only. A third organization challenged OWCP's stated
rationale, noting that agencies do not uniformly submit claim forms in
a timely manner. This organization stated further that early
intervention is valuable in cases involving extensive disability, not
where disability is infrequent, and suggested that the intention was
really to save agencies COP payments.
A fourth organization felt that the change would deprive the
employee of one of the Act's benefits and instead allow agencies to
return employees to work before they were physically able to do so. A
fifth organization expressed deep concern with the proposal, stating
that it failed to recognize that some conditions result in delayed
disability,
[[Page 65291]]
and while it applauded efforts to minimize lost time, it asked that
other methods be used. The fifth organization suggested that the period
be reduced to 60 rather than 30 days. A sixth organization also
registered grave concerns with this change, stating that it ran counter
to the remedial intent of COP and noting that medical treatment may be
delayed beyond 30 days from the date of the injury.
COP is intended to prevent an interruption of income in traumatic
injury cases during the time period it takes for an employee to submit
a claim and for OWCP to adjudicate the claim. While the legislative
history does not specify why a 45-day maximum was chosen, the history,
supported by the plain language of the statute, makes it clear that
Congress was concerned about interruption of an employee's salary while
a claim was filed and adjudicated, but had no intention of providing an
entitlement to the entire 45-day period if wage-loss benefits could be
paid instead. Section 8118(b)(3) further provides that COP is to be
paid ``under accounting procedures and such other regulations as the
Secretary may require,'' giving the Secretary broad authority to
establish the ground rules under which COP will be paid.
However, to mitigate any problems which a 30-day maximum time frame
for beginning to use COP might cause, the time frame in the final rule
has been changed to 45 days. Despite this change, OWCP believes that it
will still be able to fulfill its goal of returning employees to work
at the earliest possible time. As noted in the Preamble to the Proposed
Rule, it is best if OWCP learns of lost-time cases as soon as possible
so that early intervention can facilitate an early return to work.
Continued disability-related absences, even intermittent absences, can
prevent OWCP from intervening during this crucial time. OWCP recognizes
that this need must be balanced against the need to ensure an income
stream. The two are not mutually exclusive, however, and the efforts of
the agencies and OWCP to shorten the time period required to process
claims and pay benefits will prevent interruptions to the income
stream.
One example put forth in favor of retaining the existing period for
payment of COP when disability does not begin right after the date of
injury is that of a claimant whose surgery cannot be scheduled within
30 days. If the claimant continues to work, lost time does not begin
until the date of surgery, and if this date is more than 30 days past
the date of injury, the individual will have no entitlement to COP and
no income.
In this scenario, however, the income stream would not be
interrupted. OWCP would note that surgery is pending, and the
anticipated lost time would allow the agency and OWCP to process claim
forms for wage-loss benefits so that the income stream would not be
interrupted. Indeed, this is the very kind of scenario in which COP
would not be appropriate, since such lost time is anticipated well in
advance and the agency and OWCP have time to process the claim to
provide the wage-loss benefits under the Act.
Finally, several commenters noted that employees in some cases lose
time intermittently just to attend medical appointments, and cited this
kind of time loss as a reason for not reducing the period for
commenting use of COP. OWCP does not disagree with this argument, but
after careful consideration, it concluded that administration of a
provision with different time frames with respect to disability and
medical care would be too complicated, both for employing agencies and
for OWCP itself. Therefore, the time frame for beginning to use COP
will be 45 days in all circumstances.
Three agencies and a labor organization noted a contradiction
between a statement in this section and a statement in Sec. 10.105(a),
with respect to whether a Form CA-2a, Notice of Recurrence, must be
filed during the COP period. As noted in the comments about
Sec. 10.105, the statement in Sec. 10.207(a) is correct.
Section 10.205(a)(2)
An employing agency inquired as to what would constitute ``another
form'' acceptable to OWCP, and whether a letter would suffice. This
language is included so that the regulations reflect OWCP's position
that a Form CA-2, CA-7 or CA-8 (all of which contain words of claim)
fulfills the requirement that notice be given ``in writing'' under the
appropriate circumstances. The word ``form'' does in fact denote an
OWCP-approved claim form, and a letter would not serve the purpose
described herein.
Section 10.206
One agency expressed concern with the retroactive election of COP
in those cases OWCP terms ``short form closure'' cases, that is, cases
where there is no wage loss claim and the medical bills do not exceed a
certain dollar amount. In these cases, no formal acceptance is issued.
The agency points out that in such cases, the wording in Sec. 10.206(a)
should be revised to reflect this by adding the parenthetical clause
``(if written approval is issued).'' This suggestion is accepted and
the language has been changed accordingly.
Section 10.210
An employing agency argued that employees should submit medical
reports to employing agencies as well as to OWCP. This issue is
addressed in the comments about Sec. 10.331(b). Several commenters
pointed out a typographical error (``employer'' instead of
``employee''), which is corrected in the final rule.
A labor organization objected to changing the period within which
medical evidence supporting disability must be submitted to the
employer from 10 working days to 10 calendar days. This change was made
because it is important to obtain this evidence as soon as possible.
Using working days, which do not include Saturdays, Sundays and Federal
government holidays, can easily result in a period of 15 or more
calendar days elapsing before a medical report is received, a period
during which the employee continues to be absent from work. OWCP has
discussed the importance of early intervention, and the earlier the
submittal, the better. This section is entitled ``Employee's
Responsibilities'' to emphasize that return-to-work efforts are
required by employees as well as employers and OWCP. Certainly the
employee, who has chosen his or her physician, has the most leverage
over the physician at this crucial time and can best ensure that such
medical evidence is submitted. The new language requiring the report to
contain a statement as to when the employee can return to work is
consistent with and essential to this goal.
Section 10.211
One labor organization suggested wording changes to subsection (c)
that would have the effect of eliminating the distinction between
controverting a claim for COP and other objections an employer might
raise to a claim under the FECA. Unlike a general objection that would
have no immediate consequences for a claimant pending action by OWCP,
controverting a claim for COP is a preliminary determination by an
employer that stops a claimant's regular pay. Therefore, OWCP wants to
retain the distinctive nature of this particular type of objection, and
the suggested changes have not been adopted.
In subsection (d), several commenters asked what the phrase ``other
forms approved by the Secretary'' meant. This phrase was added to
ensure that the
[[Page 65292]]
regulations reflected OWCP's position that a Form CA-2, CA-7 or CA-8
(all of which contain words of claim) will fulfill the requirement that
notice be given ``in writing'' under the appropriate circumstances. In
addition, one labor organization suggested changing ``return'' to
``transmit'', and this change has been made. Finally, three agencies
objected to the requirement that Form CA-1 be submitted to OWCP within
five calendar days. For the reasons stated in the response to the
comments received to Sec. 10.110, OWCP has decided to keep the time
frame of 10 working days, and the language of paragraph (d) has been
changed accordingly.
Section 10.215
One agency noted with respect to paragraph (d) that there appeared
to be a change in how COP days are calculated in this section as
proposed. The section states that days off are counted toward COP if
COP was used in the days immediately before and after the days off. The
comment pointed to an inadvertent modification in how days are
calculated and the final version has been changed to read that if COP
is used on the day before or the day after days off and disability is
supported by medical evidence, the days off are counted toward COP.
The same agency suggested language on calculating COP days for
part-time or intermittent employees, and that language has been
adopted. However, this agency's suggestion that OWCP add a new
paragraph to Sec. 10.215 to address the circumstances under which COP
may be used for obtaining medical treatment would both limit the scope
of paragraph (c) and unnecessarily restrict OWCP's ability to monitor
the provision of medical treatment, and therefore the requested
addition has not been made.
Sections 10.216 and 10.217
Two Federal agencies noted that the inclusion of differential and/
or Sunday premium pay in the pay rate for COP was contrary to
provisions in two appropriation bills passed by Congress, Pub. L. 104-
208, section 630, 110 Stat. 3009, 3362 (1996) and Pub. L. 105-61,
section 636, 111 Stat. 1272, 1316 (1997), which prohibited Federal
agencies funded by those bills from paying differential and/or Sunday
premium pay to their employees unless they actually performed work
during the time period relevant to such pay. These agencies therefore
suggested that both Secs. 10.216(a)(1) and 10.217 be changed to reflect
that these particular increments of pay are not to be included in the
pay rate for COP.
Ever since Congress amended the FECA in 1974 to provide for COP,
OWCP has directed agencies to include premium, night or shift
differential, Sunday or holiday pay, and other extra pay in their
calculations of the pay rate for COP. However, in several recent
appropriation bills, Congress has included language similar to the
prohibitions cited by the two Federal agencies, without actually
amending the underlying statutory authority for such increments of pay
or overturning court decisions construing such statutory authority.
Therefore, while it is clear in the absence of such appropriations
language that it would still be proper for OWCP to require the
inclusion of these two increments of pay in the pay rate for COP, it is
also clear that the statutory authority for the payment of such
increments is not derived from the FECA itself, nor are these
increments currently being paid in a consistent manner throughout the
entire Federal workforce due to the varied scope of agency legal
authority to spend appropriated funds. In addition, the agencies funded
by the appropriation bills in question would again be required to
include these increments of pay in the pay rate for COP should the
prohibition on their payment not be included in future appropriation
bills.
From an administrative standpoint, there is little justification
for OWCP involvement in payroll functions among the various agencies,
only some of which are affected by the appropriation bills noted above,
since COP constitutes a continuation of an employee's ``pay'' that is
calculated and paid by his or her agency rather than a form of
``compensation'' that is calculated and paid by OWCP. Accordingly,
Secs. 10.216(a)(1) and 10.217 are revised to reflect these
circumstances.
One of the same two Federal agencies also suggested adding language
to Sec. 10.216(a) to emphasize that ``weekly pay'' is based on an
average of the employee's weekly pay over the prior 52 weeks. However,
Sec. 10.216(a) already explains this very point, and thus the suggested
addition is not made. One labor organization urged that Sec. 10.216
include a reference to paid leave in determining how COP is calculated,
for fear that agencies would exclude it from their calculations.
Certainly, paid leave must be included in the calculation of COP. While
neither OWCP's regulations issued since 1975 nor the Federal (FECA)
Procedure Manual make reference to paid leave, there is no indication
that this absence has caused the feared exclusions to occur. Therefore,
OWCP sees no need to add the requested reference.
Sections 10.220, 10.221 and 10.222
One labor organization recommended changes to Sec. 10.221 regarding
the requirement that an agency controvert a claim for COP before it
stops an employee's pay. However, the suggested changes, which involve
retention of language in current Sec. 10.203(b), would not maintain the
desired distinction between controverting and otherwise objecting to a
claim, and they have therefore not been incorporated.
A number of labor organizations noted that the existing rules
direct agencies to retroactively reinstate COP which it had stopped
because medical evidence showing disability had not been received
within 10 days, when that medical report is received. The language has
been added to Sec. 10.222(a)(1).
One agency asked about the type of medical evidence necessary to
support the continued payment of COP and requested further guidance
from OWCP. The evaluation of medical evidence by the employing agency
is limited to a determination of whether, on its face, the medical
report supports disability. Agencies do not properly consider medical
rationale. Given this limited involvement, further guidance of the type
requested is seen as unnecessary.
One labor organization objected to the provision in
Sec. 10.222(a)(1) that would allow an agency to stop paying COP if the
claimant fails to submit the required medical evidence within 10
calendar days and requested that the time frame of 10 working days be
retained. However, as noted previously in the response to this labor
organization's objection to the equivalent language in Sec. 10.210(b),
the change to calendar days from working days was made because it is
important to obtain this evidence as soon as possible. Therefore, for
the same reasons that supported maintaining the equivalent change in
Sec. 10.210(b), the requested change in Sec. 10.222(a)(1) has not been
made.
Another labor organization objected to the change allowing the
termination of COP when a personnel action--initiated before the injury
and including a removal action--becomes final following the injury and
during the COP period. No reason was offered for the objection,
however, and the program believes that this clarification is necessary
to ensure that employees who would otherwise not have received salary
do not receive it merely because of the COP provisions. This change was
supported by one agency.
Yet another labor organization, along with an agency, suggested
that the
[[Page 65293]]
proposed rules clarify the employing agencies' authority to terminate
COP. An agency noted that Sec. 10.222(a)(3), regarding refusal of a
written offer of suitable work, appears to change the current authority
for an agency to stop COP. Such a change was not intended, and so new
language has been added to this section which makes it clear that an
agency can stop COP when an employee refuses a written offer of
suitable work, but that OWCP has final authority to determine whether
the termination was appropriate and can order retroactive restoration
of COP benefits improperly terminated.
The labor organization noted that the language preventing an agency
from terminating COP except under the circumstances listed in existing
Sec. 10.203 and Sec. 10.204 does not appear in the proposed rules. The
reasons for termination have remained essentially the same (except for
termination for personnel actions initiated before the injury which
become final after the injury). While the language in Sec. 10.220 and
Sec. 10.222 is phrased to limit authority of the agency not to pay
(Sec. 10.220) or to stop paying (Sec. 10.222) in those circumstances
listed, the comments show that the program's intent was not clear.
Therefore, additional language has been added to Sec. 10.220 and
Sec. 10.222(c), clarifying that the agency cannot stop COP to which the
employee is otherwise entitled except for the reasons set out in these
two sections, or unless OWCP directs COP to stop, or unless the
individual has returned to work.
Sections 10.223
Two agencies noted that this section failed to address disruptions
by the employee's representative. That language has been added. A labor
organization noted that the ``required medical examination'' is one
required by OWCP and the regulations should so state, and this change
has been made. The organization also suggested making clear that the
suspension is subject to all appeal and review rights. This language is
unnecessary, since all adverse decisions by OWCP are subject to the
review and appeal processes set forth under the Act.
Section 10.300(b)
While agreeing with the proposed language that Form CA-16 need not
be issued more than a week after the injury occurs, one agency
suggested that this section be changed to state that the form need not
be issued if the employee reports the injury more than one week after
its occurrence. The current language covers this situation as well as
the situation where an employee reports an injury right away but does
not appear to need medical care for up to a week afterwards. Therefore,
OWCP does not believe that the suggested change is necessary.
Another agency suggested that the time for issuing Form CA-16 be
increased from four to 24 hours, citing distances among supervisors,
injured employees, medical treatment facilities, and those authorized
to sign Forms CA-16. The four-hour time frame is the same as currently
provided, and as noted in the second sentence of this paragraph, verbal
authorization may be given if necessary. In view of the excellent
telephone and facsimile communications generally available in the
United States, OWCP sees no reason to increase this time frame.
A commenter also objected to the time frame stated, claiming that
reaching OWCP may take a week, that care cannot be authorized unless
the specific procedures are known ahead of time, and that employees
injured at night and on weekends are denied equal access to care. These
arguments are not persuasive, especially as the proposed rule is
unchanged from the existing rule, and the commenter's suggestion that
the employer authorize one visit for medical care until OWCP can
approve further care is impractical.
Three labor organizations argued that the proposed rule limiting
issuance of Form CA-16 to one week following the injury is inconsistent
with the statutory 30-day requirement for claiming COP. Still another
labor organization stated that changing to a one-week limit from what
it considered to be the current time frame of six months from the date
of injury to be ``radical and inappropriate''. OWCP does not agree. The
purpose of Form CA-16 is to authorize urgently-needed medical care in
connection with a work-related traumatic injury, not to provide blanket
medical coverage. An employee whose need for medical care develops so
gradually that it is not apparent until a week after the injury
occurred cannot accurately be said to require urgent medical care. The
time requirements for claiming COP have no relation to those governing
issuance of Form CA-16.
Section 10.300(d)
Three employee organizations suggested that the employer be
specifically instructed to ``advise the employee of the right to
initial choice of physician'', parallel to the language of proposed
Sec. 10.211(b) with respect to the employee's right to COP. This change
has been made.
Another employee organization suggested that this paragraph allow
for initial choice of medical facility as well as physician. Inasmuch
as a report from a physician is needed to support a claim for
compensation, the inclusion of the term ``medical facility'' is
irrelevant at best, and might prove misleading as well.
A commenter stated that this section does not indicate how OWCP
will notify physicians that they have been excluded. This information
is provided in subpart I, which is referenced in this paragraph.
Section 10.303
Two agencies expressed their appreciation for the clear statement
with respect to issuing Forms CA-16 for simple workplace exposures to
hazardous substances when injuries have not occurred.
Section 10.310
Two agencies stated their support for the changes in this section
with respect to appliances, supplies, and generic equivalents for
prescribed medications, indicating their belief that these measures
would assist in cost containment (and, in the view of one of them,
sound fiscal management). Another agency stated its approval of the
program's cost containment efforts in general. Another commenter, on
the other hand, questioned how OWCP would apply the test of cost-
effectiveness.
A commenter also questioned the statement that OWCP ``will not
approve an elaborate appliance or service where a more basic one is
suitable'', positing that OWCP will oppose use of higher-cost
diagnostic tests (for instance MRIs, in comparison with x-rays) in a
misguided attempt to cut costs. This conclusion is incorrect. The
statement is intended to address requests for special equipment, such
as exercise bicycles, and special services, such as health club
memberships, when prescribed to treat the effects of an injury. OWCP
will not pay for a top-of-the-line appliance or service where a less
expensive equivalent exists. However, in matters of diagnosis and
treatment, OWCP does not and will not attempt to second-guess
physicians.
Section 10.310(b)
The last sentence in this paragraph gives OWCP the authority to
require the use of generic equivalents where available. An agency
suggested that OWCP require the use of generic equivalents where
available for all prescribed medications, unless the employee shows
good cause for not
[[Page 65294]]
doing so. Another commenter, on the other hand, stated that OWCP should
not be allowed to require the use of generic equivalents if they do not
represent the ``SOC'' (presumably ``standard of care''), since doing so
``sets MDs up for malpractice''.
As the purpose of adding this provision to the regulations is to
provide OWCP with the flexibility to implement such a policy in the
future, the first comment is not adopted. With respect to the second
comment, use of generic equivalents is a commonly accepted practice in
many health plans and medical benefit programs, and the program has no
intent to subvert generally accepted standards of care. The statement
will therefore remain unchanged.
Section 10.311
With respect to Sec. 10.311(a), two agencies stated their
disagreement with what they considered the expansion of chiropractic
services and suggested that the first sentence be reworded to more
closely follow the statutory language. However, the proposed change is
virtually identical to the last sentence of section 8101(2), and as
there is no intent to expand the meaning of the statute, and the costs
involved are consistent with the statute and with OWCP's past practice,
OWCP does not believe that the language of this section needs to be
modified.
Another commenter objected to Secs. 10.311(a) and (b) on the basis
that chiropractors cannot treat subluxations. Such treatment is
authorized at section 8101(2).
Section 10.313
An agency asked that this section more clearly define when
preventive treatment may be authorized and when it may not,
particularly in the context that a work-related injury must be present
before treatment may be authorized. Paragraphs (b) and (d) already
refer to specific injuries, and paragraph (a) addresses complications
of agency-sponsored preventive measures, which are considered to be
injuries. Paragraph (c) refers to conversion of tuberculin reaction
after exposure to tuberculosis in the performance of duty. Since
tuberculosis is transmitted invisibly, through the air, a specific
injury is inferred from the conversion. For these reasons, OWCP does
not believe that changes to this paragraph are necessary.
Section 10.314
Two employee organizations objected to the change in method of
payment to attendants as represented by this section, given the
language of section 8111(a). The Preamble to the Proposed Rule (62 FR
67123-67124) sets forth in detail OWCP's reasons for making this
change, and OWCP continues to believe that this exercise of the
Director's discretion will be beneficial in several ways. As noted in
the Preamble, employees currently receiving an attendant's allowance
under section 8111(a) will not be affected by this change.
Two agencies stated that they support the changes noted in this
section, one indicating its belief that this provision will help OWCP
to monitor and control medical costs in the future. The other suggested
that this section address the desired billing method, either
specifically or by cross-reference to subpart I. OWCP concurs, and a
cross-reference to Sec. 10.801 has been added.
The second agency also suggested that the new provision apply to
all cases, and that attendants' allowances currently being paid under
section 8111(a) be discontinued. In this agency's view, such a change
would reduce workload and avoid any confusion which might result from
having two methods of payment. Given the relatively small number of
cases affected by this provision, OWCP does not believe that the
benefits which would result from changing the method of payment to
claimants now receiving augmented compensation for attendants would
outweigh the disruption which might result.
Section 10.320
An agency questioned whether an employee's spouse may attend a
second opinion examination, and if not, asked that this be stated in
the regulation (and in the letters notifying claimants of
appointments). The proposed paragraph states that ``the employee is not
entitled to have anyone else present at the examination * * *.'' OWCP
believes that the word ``anyone'' is inclusive enough to convey the
intended meaning of this sentence, and that clarification is
unnecessary.
A labor organization commented that it is unlikely that personal
physicians will participate in second opinion examinations, due to
other commitments, and that is unfair for an employee to be ``be denied
an opportunity to have a second person present during the
examination.'' Another organization expressed similar concerns and
stated that the language of Sec. 10.323 is sufficient to address any
improper behavior.
Section 8123(a) provides that ``The employee may have a physician
designated and paid by him present to participate in the examination.''
The FECA says nothing about other individuals participating in the
examination. Of course, it is perfectly permissible for any individual
to accompany the employee to the examination and remain nearby, in the
waiting room, if the employee so desires.
On another subject covered by this section, an employee
organization argued that the provision for sending a case file for
second opinion evaluation without actual examination of the claimant is
counter to the clear language of section 8123, and should therefore be
removed. Evaluation of the case file without examination of the
claimant can assist claims staff in resolving such issues as causal
relationship in occupational disease cases, or making retroactive
determination of whether surgery should be authorized. Furthermore, in
Melvina Jackson, 38 ECAB 443 (1987), the ECAB authoritatively held that
this section of the FECA is not limited to physical examinations of a
claimant and specifically construed section 8123(a) as providing for
evaluations of the evidence in a claimant's record without an actual
physical examination. Therefore, the suggested deletion is not made.
Section 10.321
One agency asked that a statement be added to this section
clarifying that not every difference in medical opinion results in a
referee examination. The requested clarification is consistent with
decisions of both the ECAB (Andrea Kay Roberts, Docket No. 95-1839
(October 22, 1997)) and federal courts that have addressed this point
(McDougal-Saddler v. Herman, No.Civ.A. 97-1908 (E.D.Pa. December 24,
1997), and Chaklos v. Reich, et al., No. Civ.A. 95-1763 (W.D.Pa. August
25, 1997)). OWCP agrees that clarifying this section would be useful
and therefore a new paragraph (a) has been added. Also, the current
text has been relettered paragraph (b), and the title of this section
has been slightly revised to more accurately reflect its subject
matter.
One labor organization argued that the provision for sending a case
file for referee evaluation without actual examination of the claimant
is counter to the clear language of section 8123, and should therefore
be removed. However, in Melvina Jackson, 38 ECAB 443 (1987), the ECAB
noted that it had never held that an actual physical examination of a
claimant was necessary to resolve disagreements using the medical
referee provisions of
[[Page 65295]]
section 8123(a). Therefore, the suggested deletion is not made.
In paragraph (b), the reference to section 8123(a) has been
replaced with a reference to Sec. 10.502.
Section 10.322
An agency asked that a statement be added to this paragraph noting
that the costs of second opinion and referee examinations are
eventually charged back to employers. However, the costs associated
with medical examinations are no different from other benefits under
the FECA, as all expenses are charged back to employers. The mechanism
for doing so is described in the FECA at section 8147. In line with
OWCP's attempt to avoid repeating statutory provisions in the
regulations wherever possible, the program does not believe that
addition of language about chargeback of costs associated with medical
examinations is necessary or desirable.
Section 10.323
An agency suggested that the title of this section be revised to
include the word ``penalties'', and this change has been made.
Section 10.324
A labor organization argued for inclusion of language which would
bar the results of medical examinations requested by the employer from
being used to reduce or terminate OWCP benefits, unless those results
were corroborated by medical examinations directed by OWCP. The
program's procedures have stated for some time that such examinations
will not be used in this way, and OWCP is not aware of any problems
which have arisen with respect to this policy. Therefore, the program
does not believe that it is necessary to address it by regulation.
Section 10.330
See the discussion above concerning Sec. 10.115. This section is
being modified to make clear that in all cases the employee is
responsible for submitting medical evidence, or arranging for its
submittal.
A commenter suggested that medical reports require the disclosure
of previous claims for the same condition, pre-existing conditions of
the same part of the body, and hobbies or other occupations which may
contribute to the condition claimed. OWCP already has the capacity to
identify previous Federal workers' compensation claims for injuries to
the same part of the body. Where necessary, OWCP requests information
about pre-existing conditions, hobbies and other jobs as part of
evaluating claims for disability.
The same commenter stated that examining physicians should be
required to state whether the condition found is causally related to
employment. In fact, such a requirement already exists. The commenter
also suggested that OWCP physicians review all claims to ensure that
causal relationship is properly established. OWCP will shortly begin
using automated decision tables, which will compare the condition
claimed on the bill with the condition accepted in order to identify
problematical acceptances.
Section 10.331(b)
An agency suggested that the employee or treating physician submit
copies of medical reports to the employer, stating that while Form CA-
17 is useful, physicians do not always complete it. The agency also
suggested that OWCP should be required to submit to the employer a copy
of any medical report showing that the employee can return to work in
some capacity.
Another agency characterized the requirement that reports be sent
directly to OWCP as ``directing employees and medical providers to
circumvent the employing agencies'' and claimed that this represents a
detrimental change, although current Sec. 10.410(b) also requires
submittal of reports to OWCP. This agency also stated that this policy
will hinder agencies from helping claimants with requests for surgery
and claims for wage loss and from becoming aware of new medical
conditions which need to be considered in making offers of
reemployment.
A third agency stated that it has difficulty managing cases without
immediate access to medical reports, which it cannot always obtain
right away from OWCP. Another commenter makes this argument as well.
This set of comments speaks to the need for careful information-
gathering and for close coordination among employers, employees and
OWCP. They also speak to the rights and responsibilities of all parties
in the claims process. In its proposed regulations, OWCP has tried to
strike a balance among these sometimes competing interests. Employers
usually need copies of medical reports primarily to identify jobs to
which their injured employees may return, and Form CA-17 is designed
explicitly for this purpose. That medical providers do not always
complete forms and reports as requested is an experience shared by
OWCP, and the program does not believe that adding another requirement
for information submittal will truly address this issue, particularly
when the medical reports may not accurately describe work limitations.
With respect to managing claims and the need for up-to-date
information when offering reemployment, one of the reasons that OWCP
uses the services of registered nurses is to facilitate coordination
and exchange of medical information among claimants, employers, and
medical providers. When a claimant can return to work, whether to full
or light duty, full or part time, it has been OWCP's experience that
the nurses are able to provide information quickly and accurately so
that reemployment can take place as soon as possible.
For all of these reasons the program does not believe that a change
in this section is warranted. The agency may, however, obtain copies of
such medical evidence directly from OWCP.
Another issue raised by several employing agencies is whether Form
CA-17 may be used only for traumatic injuries. One agency notes that it
might well be used to determine work limitations in certain kinds of
occupational illness cases. OWCP concurs, and the word ``traumatic''
has been removed from this paragraph.
Section 10.333
One employee organization suggested that this section state that
medical reports in support of claims for schedule awards must be based
on the American Medical Administration's (actually, American Medical
Association's) Guides to the Evaluation of Permanent Impairment. OWCP
concurs, and this reference has been added to this section.
Section 10.336
A commenter stated that the time frames for submittal of bills are
too long and suggested that OWCP require submittal within 30 days of
the service date. However, the time frames set forth in the regulations
are consistent with the practice of the insurance industry in general,
and OWCP sees no reason to change them. The commenter also suggested
that OWCP be required to process bills within 60 days of receipt. OWCP
adheres to internal standards which require that 90 percent of medical
payments be made within 28 days of receipt and that 95 percent be made
within 60 days of receipt. For this reason, OWCP does not see the
benefit of including specific time periods in the regulations.
Requiring an ``attached medical report'', as is also suggested, is
impractical in an automated bill processing environment.
[[Page 65296]]
Section 10.337
An employer and another commenter objected to the provision for
reimbursement on the basis that it is unfair to both the agency, which
will have to pay the chargeback bill, and to providers who adhere to
the fee schedule. While OWCP does not consistently and/or routinely
reimburse employees for these excess charges, paragraphs (b) and (c)
have been revised so that the employee will be responsible for
contacting the provider to obtain refund or credit. If the provider
does not comply with this request, the claimant will need to submit
documentation of the attempt to OWCP. OWCP may in its discretion make
up the difference to the claimant, after reviewing the facts and
circumstances of the case. Once such a payment is made, the employee
would be aware of the monetary costs of continuing to seek treatment
with such a provider, and OWCP might consider not reimbursing the
employee for any subsequent excess charges, thereby minimizing the
impact of Sec. 10.337 on an agency's chargeback costs. (Section 10.802
has been modified consistent with these changes.)
Two labor organizations suggested that the language of Sec. 10.813
be repeated for claimants in this section. Sections 10.337 and 10.813
are intended to be parallel in structure, and OWCP does not believe
that repeating Sec. 10.813 would serve any useful purpose.
Section 10.401
With respect to the period of disability which must elapse before
the claimant may be compensated for the first three days of wage loss,
an agency asked that the method of counting the days be clarified. The
word ``calendar'' is being inserted to make the meaning clear. The
agency also inquired as to whether the 14 days may be intermittent, and
in fact they may.
One agency suggested a cross-reference to Sec. 10.6. A specific
reference to section 8110(a) would probably be more useful, and one is
therefore being added.
Section 10.403(a)
One agency commented, apparently with respect to this section, that
determinations of wage-earning capacity should be tied to the minimum
wage rate. However, the FECA has no provision for establishing such a
link.
Two labor organizations argued that, consistent with ECAB decisions
in this area, any position selected as representing an employee's wage-
earning capacity must be actually available to the employee within his
or her commuting area. However, this is an incorrect interpretation of
the ECAB's rulings, which have consistently held that OWCP only needs
to find that a position is being performed in sufficient numbers in the
area in which the employee lives so as to be considered reasonably
available before it can determine that the job represents the
employee's wage-earning capacity [e.g., Kenneth H. Cummings, Sr., 28
ECAB 284 (1977); James B. Stewart, 32 ECAB 36 (1980)]. Accordingly,
since there is no requirement that the selected position actually be
available to the employee, the suggested change is not made.
Section 10.404
Two agencies objected to the inclusion of pre-existing impairments
in payments made under the schedule award provisions of the FECA. These
agencies argued that employees who are compensated for the full extent
of their impairments actually receive benefits for non-occupational
impairment.
It is a well-settled principle of workers' compensation law that
each employee is hired ``as is''. The employee is a whole person, with
various strengths and weaknesses, some of which pre-exist employment
and some which develop concurrently with it. Apart from the practical
difficulties which the commenting agencies admit would result from any
attempt to differentiate work-related from non-work-related impairment
to a schedule member, such an attempt would violate the remedial nature
and spirit of the FECA.
One agency suggested re-writing this section to reflect a means
test for dependency. The FECA contains no provision for such a test
(see the comments about Sec. 10.6).
A labor organization suggested restoring text concerning payment
for schedule impairment which appears in current Sec. 10.304(c). This
material already appears in section 8107(a), and OWCP sees no reason to
repeat it here.
Another commenter objected to the program's use of the AMA's Guides
to the Evaluation of Permanent Impairment for determining schedule
awards under the FECA, indicating that it focuses on the extent of the
initial injury or illness, not the degree of recovery. This, however,
is not true. The AMA states on page 1/1 of the fourth edition that
``The Guides defines `permanent impairment' as one that has become
static or stabilized during a period of time sufficient to allow
optimal tissue repair, and one that is unlikely to change in spite of
further medical or surgical therapy.'' OWCP does not agree with the
commenter's suggestion that the program use another publication for
determining schedule awards.
The commenter also questioned whether medical benefits are payable
in cases where the claimant has reached maximum medical improvement.
Such expenses are in fact payable as long as treatment is found to be
necessary and reasonable.
Section 10.405
An agency suggested addition of a means test for dependents to this
section and to Sec. 10.6. The FECA contains no basis for such a
measure.
Section 10.406
A commenter suggested use of different percentages than those
provided by law for payment of compensation for disability. Such
modifications would require a change to the FECA itself.
Section 10.410
One labor organization requested that OWCP restore the partial
description of the compensation payable in death cases that was set out
at Sec. 10.306 of the 1987 regulations (the organization was apparently
unaware that the FECA was amended in 1990 to change the age of
remarriage noted in section 8133(b)(1) to 55). Since the proposed rule
was published in the Federal Register on December 23, 1997, the ECAB
issued a decision construing section 8133(a)(5) of the FECA for the
first time. That decision is Clyde Stevenson (Donna R. Stevenson),
Docket No. 95-3016 (issued February 4, 1998). In light of the
authoritative construction of this section of the FECA provided by the
ECAB in Stevenson, and to address the concerns of the labor
organization, the heading and text of Sec. 10.410 are revised
consistent with the request.
Section 10.417
A commenter suggested that this section should state whether a
handicapped child continues to be entitled to benefits if the employee
dies. If this happens, payments end unless death benefits are awarded.
No change is necessary as a result of this comment.
Section 10.420
In all four subsections, the statutory reference has been changed
to section 8146a, not 8146(a).
Section 10.421
Two Federal agencies recommended that the election provision in
Sec. 10.421(a) be modified to make it either partially or fully
irrevocable, citing the Office of
[[Page 65297]]
Personnel Management's (OPM's) rule that elections of benefits in death
cases are irrevocable, while another commenter recommended that the
provision be removed entirely. OPM and OWCP have adopted their
respective policies for particular reasons, and neither agency is
unaware of the other's position.
While it is understandable that agencies would desire that OPM and
OWCP policy be the same, the changes proposed by these commenters would
not be consistent with the settled construction given to section 8116
of the FECA by the ECAB in such leading cases as Adeline N. Etzel
(Bernard E. Etzel), 21 ECAB 151 (1969); Charles W. Akers, 24 ECAB 316
(1973); Louis Teplitsky, 29 ECAB 826 (1978); and Gary J. Bartolucci, 34
ECAB 1569 (1983). Therefore, the suggested modifications are not
adopted.
The latter commenter recommended that both subsections (a) and (d)
of Sec. 10.421 be modified to automatically end compensation payments
at retirement age (except for permanently totally disabled
individuals), at which time such beneficiaries would ``revert'' to
their respective retirement systems. The commenter also recommended
that the dual benefit restrictions set out in Sec. 10.421(a) also apply
to the military payments described in Sec. 10.421(b). Absent an act of
Congress amending section 8116, however, such changes cannot be made,
and OWCP is therefore not adopting them.
Finally, the same commenter recommended that the first sentence of
Sec. 10.421(e) be modified to add the requirement that beneficiaries
provide ``information on any other compensation or injury.'' However,
such information would have no effect on a beneficiary's entitlement to
compensation under the provisions of section 8116, and the requested
modification is therefore considered unwarranted.
Section 10.430(a)
One labor organization suggested that the word ``clear'' be added
before ``indication of the period * * *'', and OWCP is making this
change. The organization also suggested that the section specify that
periodic checks are to show any deductions or adjustments affecting the
amount of the payment. OWCP is working on automated enhancements which
will allow this information to be shown, but the capacity to do so is
not yet available.
Sections 10.433, 10.436, and 10.437
Three agencies objected to being held financially accountable,
through the chargeback process, for waivers of overpayments which
resulted from errors made by OWCP. They suggested that when OWCP waives
such an overpayment, the agency should receive a credit to its
chargeback bill in the amount of the overpayment. For two reasons, OWCP
does not concur with this suggestion.
First, the FECA is remedial in nature, and OWCP considers requests
for waiver according to carefully defined procedures which are intended
to protect the interests of both the claimant and the Government. The
granting or withholding of a waiver is not intended to be a punishment
or a reward, but rather the result of an administrative process as
provided by law. Secondly, the FECA contains no provision for crediting
the chargeback with monies reflecting either the commission of errors
or the waiver of overpayments by OWCP.
Section 10.441
A commenter objected to inclusion of overpayment amounts in
agencies' chargeback bills when the claimant is not at fault and the
employer controverted the claim or detected the overpayment. The FECA
contains no provision for crediting the chargeback because of such
actions by the employer. In paragraph (b), the reference to the Debt
Collection Act of 1982 has been replaced with the Federal Claims
Collection Act of 1966 (as amended).
Section 10.500
As noted above, the proposed section has been subdivided into four
new sections (Sec. 10.500 through 10.503) for clarity, and the contents
have been slightly rearranged.
One agency objected to what it believed to be a new criterion for
defining suitable work, namely that it be ``appropriate to the nature
of the employee's usual employment''. This phrase represents a
misreading of the actual text, which is taken from section 8115, as
follows: ``appropriate to the nature of the injury; the degree of
physical impairment; the employee's usual work; * * *'' The regulatory
language contains nothing novel.
Four labor organizations argued that any position found to
constitute suitable work should be available within the employee's
commuting area. The availability of suitable work within the employee's
``commuting area'', a term which has been extensively addressed by the
ECAB, is required. See Arquelio Pacheco, 40 ECAB 277 (1988); Fred L.
Nelly, 46 ECAB 142 (1994). OWCP is modifying this section accordingly.
Section 10.501
One labor organization suggested rewording paragraph (a) to state
that OWCP's requests for medical evidence in long-term disability cases
will ordinarily occur not less than once a year. OWCP is making this
change, as the suggested wording reflects long-term OWCP policy with
respect to certain severely disabled employees.
One agency and another commenter noted that, while the Preamble to
the Proposed Rule states that benefits may be suspended for failure to
undergo non-invasive testing directed by OWCP, the text of paragraph
(b) itself does not so state. A sentence is being added to this section
to correct this oversight.
Section 10.505
One agency stated that this section combines two subsections of
section 8151(b) in error, and a labor organization made the same point
by suggesting that this section be rephrased. The word ``within'' is
being replaced by the word ``after'' to correct this oversight.
The same agency noted that, because of the importance of making job
offers in writing, Sec. 10.505(c) is better placed in Sec. 10.507,
``How should the employer make an offer of suitable work?'' OWCP
concurs, and the language has been moved accordingly.
Section 10.505(a)
One labor organization suggested that this section require the
employer to advise the employee in writing of the specific duties
involved. This change has been made.
Section 10.506
An employer suggested that agencies not be limited to the use of
Form CA-17 in gathering medical information from physicians. The form
is usually adequate for this purpose, and this section has been revised
to so state. Another agency wanted to remove the words ``in writing''
from this section, on the basis that return to work might be delayed or
improper job placements might result from unclear descriptions of
restrictions from physicians. The need for clarity in such descriptions
is one of the two main reasons for requiring such offers to be made in
writing, the other being the need for diligent attention to due process
requirements. The suggested change has not been made.
A labor organization asked whether it is appropriate to use Form
CA-17 for occupational diseases as well as traumatic injuries. OWCP has
revised Sec. 10.331(b) to allow its use in both kinds of situations.
[[Page 65298]]
This organization, along with one other, also suggested that
employers be allowed to contact employees only in writing. Also, two
labor organizations stated that employers should be explicitly
prohibited from contacting physicians through phone calls or personal
visits. OWCP concurs with both of these ideas, and the suggested
changes have been added to this section.
Another labor organization objected to the provision allowing
employers to contact employees at reasonable intervals to obtain
medical evidence, due to a perceived possibility of harassment. While
reasonable people may interpret the phrase ``at reasonable intervals''
differently, the phrase clearly does not provide license for
harassment. OWCP does not believe that there is merit to the suggestion
that this provision be removed.
Section 10.507
Two labor organizations stated that employers should be required to
advise employees in writing of the information specified in paragraphs
(a) and (b). This change has been made. (Also, ``should'' in (a) has
been changed to ``shall'' for consistency with (b).)
Section 10.507(c)
An agency asked whether a job offer can be made verbally and
followed up in writing. As discussed with respect to Sec. 10.331(b),
OWCP has tried to strike a balance among the sometimes competing
interests of employers, employees, and OWCP itself.
In this case, the time gained by allowing verbal job offers must be
balanced against the need to protect the employee's due process rights.
The FECA provides a severe and permanent penalty for refusing an
offered job, and the ECAB has remanded cases where OWCP has not
scrupulously followed various procedural requirements. Job duties must
be defined with great precision so that both employer and employee
correctly understand them, and the potential for miscommunication is
always higher in verbal than in written exchanges. However, as a
practical matter, verbal job offers can expedite the process of
reemployment, which benefits both the employer and the employee.
To both allow this flexibility and provide due process rights, this
section has been modified to state that a job offer may be made
verbally as long as the employing agency follows it up with a detailed
written job offer within two business days of the verbal offer. This
amount of time should be sufficient for the claimant to consider the
job duties and assess whether he or she can perform them. The second
half of this section has also been relettered ``(d)''.
Section 10.508
A labor organization stated that, since relocation expenses may be
paid only to individuals who have been separated from the employer's
rolls, the title of this section should be modified. However, the
program believes that the question should continue to be phrased more
generally, since it will arise with respect to employees still on the
employer's rolls as well as to separated employees.
The same organization, and two others as well, proposed that the
regulations require OWCP to notify employees that relocation expenses
are payable when the job is offered. OWCP concurs that such
notification should be provided in any case where a finding is made
that the job is suitable, and text has been added to this effect.
Section 10.509
Three labor organizations suggested that the term ``reduction-in-
force'' in Sec. 10.509(a) be further modified by adding language that
would limit its application to ``general'' or ``officially mandated''
actions. Using these modifiers, however, would not be consistent with
ECAB decisions finding that employees do not sustain compensable
recurrences of disability when they lose their light-duty positions
pursuant to many different types of reductions-in-force.
Moreover, OWCP must be able to rely upon employers (and claimants)
to advise it of any personnel actions that might affect the outcome of
a FECA claim. OWCP has neither the resources nor the expertise to
determine whether reductions-in-force are ``officially mandated''
(presumably, this phrase is equivalent to ``duly authorized''), and
must leave disputes about individual reductions-in-force to be resolved
in the proper forum. The suggested change would therefore not be
workable, nor would it enhance either the sense of this section or its
legal force.
Two of the same organizations suggested that OWCP simply assume
that eliminated light-duty positions have been abolished because of
employment-related disability. It is not OWCP's practice to make
assumptions where the facts can be determined, and OWCP sees no merit
in this idea.
Another labor organization objected to the underlying premise in
Sec. 10.509(a) that a reduction-in-force will not lead to a compensable
recurrence of disability. However, as noted above, the ECAB has
consistently ruled that employees who lose their light-duty positions
in a reduction-in-force do not sustain compensable recurrences of
disability.
A labor organization suggested that this section be modified so
that employers would be prohibited from eliminating only light-duty
positions. This is a personnel matter, and one which is outside the
scope of these regulations.
One labor organization argued that a partially disabled employee
who loses his or her Federal job will not be able to find another job
in private industry and should therefore be entitled to receive
compensation. Because this statement is hypothetical, OWCP cannot
address it. An employee whose light-duty job is withdrawn, except in
reduction-in-force situations, will in fact be entitled to claim
compensation for a recurrence of disability.
An agency noted that employees may be performing light-duty work in
classified positions while they are still receiving ``retained pay''
based on their date-of-injury positions and questioned whether OWCP
should use their actual earnings in such circumstances to determine
their wage-earning capacities consistent with the language found in
Sec. 10.509(a). However, using an employee's actual earnings while he
or she is receiving ``retained pay'' has been approved by the ECAB in
cases such as Domenick Pezzetti, 45 ECAB 787, petition for recon.
denied, Docket No. 92-2037 (issued November 2, 1994), which held that
the use of actual earnings under these circumstances to determine an
employee's wage-earning capacity was consistent with section 8115(a) of
the FECA.
The same agency also suggested that Sec. 10.509(b) specifically
note that an injured employee must ``encumber'' a classified light-duty
position before OWCP will use the actual earnings in such a position to
determine the wage-earning capacity under Sec. 10.509(a). This
suggestion reflects OWCP's existing policy in this area, and
Sec. 10.509(b) is revised accordingly.
A labor organization raised a concern that pursuant to
Sec. 10.509(b), OWCP might be tempted to use an ``odd-lot'' or
``sheltered'' position created specifically for a particular injured
employee to determine that employee's wage-earning capacity. However,
the ECAB has long rejected use of such a position, and nothing in this
subsection is meant to thwart this legal prohibition, which is widely
recognized in the field of workers' compensation law. If a job is
withdrawn after OWCP has determined the employee's loss of wage-earning
capacity, and the job was in fact an odd-lot or sheltered job, the
employee may file a claim for a recurrence of disability.
[[Page 65299]]
Finally, one commenter disagreed with the use of the term ``light-
duty'' in this section and argued that it should be replaced with a
term such as ``modified'' or ``restricted duty'' that would be based
solely on medical restrictions. However, the term ``light-duty'' has a
very specific meaning in Sec. 10.509(b) that is obviously based on a
number of medical and factual circumstances, and for these reasons OWCP
does not accept the argument that it be replaced with a purely medical
term.
Section 10.515(a)
A labor organization suggested that the word ``total'' be replaced
by ``his or her compensable'' disability. In fact, neither the original
phrase nor the proposed revision adds value to this paragraph, and the
phrase ``because total disability has ceased'' is therefore being
removed.
Section 10.515(b)
An agency suggested that this section be reworded to require
claimants to seek suitable employment, as well as to accept it. This
change, which is consistent with section 8106(c), has been made.
A labor organization suggested that this paragraph be expanded to
include the effects of an ``other acceptable medical condition'' as
well as the effects of the work-related injury. The suggested wording
both obscures the meaning of the paragraph and introduces extraneous
concerns, and no change is being made to it.
Section 10.515(c) and (d)
An agency noted that employees do not always advise attending
physicians that work may be available for them, and asks whether the
agency can contact the physician when there is a written job offer or
the employee's work limitations can be accommodated. Section 10.331(b)
allows employers to contact physicians to obtain descriptions of work
limitations on Form CA-17.
Section 10.516
Two agencies argued that the 30-day period provided by OWCP for an
employee to accept or decline an offered position is too long. One
suggested that this period be shortened to five days, while the other
suggested that it be shortened to 15 days.
Where a job is to be accepted or declined, and termination of
benefits may be at issue, OWCP does not consider a period of less than
30 days sufficient, across the board, for response from employees. For
instance, if the employee objects to the position offered for medical
reasons and thus needs to obtain a medical report, it is unreasonable
to expect that the physician will conform to a five or even a 15-day
deadline to prepare and submit a medical report.
Although the circumstances in a particular case may not in fact
warrant a 30-day period for response, clear and consistent procedures
are especially important in this area of the program's operations,
given the need to provide due process at every step. For these reasons,
OWCP does not believe a change to this paragraph is warranted.
Sections 10.518 and 10.519
While one Federal agency strongly supported the inclusion of
nursing services as one of the many vocational rehabilitation services
that OWCP may provide to injured employees, one labor organization
noted that such inclusion would change nursing services from a
voluntary choice to an obligatory course that OWCP could ``direct'' an
employee to undergo, and argued that OWCP should not make this change.
It stated that such an approach would be ``deeply unproductive''
without giving any reason for this belief. The organization also
posited that the mandatory aspect was proposed so that the costs
associated with OWCP nurses would be shifted to the employing agencies,
but in fact, the costs are already charged back to the agencies.
In addition, the organization argued that since section 8104(a) of
the FECA only allows OWCP to direct ``permanently disabled'' employees
to undergo vocational rehabilitation, OWCP could not impose the
sanctions described in Sec. 10.519 (which are derived from section
8113(b) against employees who refuse to cooperate with OWCP nurses
unless they were ``permanently disabled.''
Pursuant to section 8104(a), OWCP has the discretionary authority
to ``direct a permanently disabled individual whose disability is
compensable'' to undergo vocational rehabilitation. The ECAB has
repeatedly held that a ``permanently disabled individual'' refers to an
employee with a loss of wage-earning capacity, since the intent of
Congress in enacting section 8104(a) was to provide disabled employees
with the services necessary to overcome or lessen their disability.
See, e.g., Wayne E. Vincent, 6 ECAB 1024 (1954); Joseph C. Reuter, 11
ECAB 296 (1960); Gary L. Loser, 38 ECAB 673 (1987).
Consistent with these rulings, OWCP's policy is to presume that an
injured employee who has a loss of wage-earning capacity is
``permanently disabled,'' for purposes of Sec. 10.519 only, unless and
until the employee proves that the disability is not permanent, and to
intervene in the early stages of disability cases to help employees
return to some type of work as soon as possible. Since nursing services
have been shown to be one of the most effective vocational
rehabilitation services that can be provided to employees in the weeks
immediately following their injuries, Sec. 10.519 allows OWCP to impose
sanctions against employees who refuse to cooperate with its nurses.
However, in light of the apparent confusion regarding the scope of this
regulation, Sec. 10.519 is revised to better describe OWCP's policy.
Section 10.520
A labor organization asked that this section be reworded to state
that positions must be available within the employee's commuting area.
OWCP believes that this point is sufficiently addressed in the response
to the comments to Sec. 10.403 set out above.
Section 10.525(a)
Two agencies asked that this section include the authority for OWCP
to request copies of employees' tax returns, though neither agency
includes a reason for this request. The program occasionally finds it
necessary to request tax returns, for instance to verify self-
employment or to ensure that an employee has not earned income for a
lengthy period for which retroactive compensation is claimed. When
asked, employees have submitted the copies without protest. OWCP does
not believe that an addition of regulatory authority is necessary.
Section 10.526
One agency asked OWCP to clarify the language of this section
regarding the applicability and frequency of the intended reporting
requirement, while another agency noted the similarity of this section
to Sec. 10.525 and suggested simply combining the two sections. To
clarify Sec. 10.526 consistent with the first suggestion, the text of
this section has been modified to specifically state that this is a
periodic reporting requirement which applies to both partially and
totally disabled employees. However, the suggestion to combine
Secs. 10.525 and 10.526 is not adopted since the text of Sec. 10.526 is
intended to focus on volunteer activities, and keeping these sections
separate will further highlight this intentional distinction.
The second agency also suggested that this section include OWCP's
expectation that employees will report
[[Page 65300]]
any information which might reasonably affect their benefit levels. The
program believes that this last point is better left to procedural
guidance.
One labor organization argued that employees should not be required
to report volunteer activities because such activities may help them
cope with their disabilities. While agreeing that these activities may
be beneficial to an employee's self-esteem, OWCP is of the opinion that
they are also a useful indicator of an employee's ability to perform
some form of work and therefore should be reported.
Section 10.527
One agency suggested strengthening the wording of this section by
removing the words ``attempt to'' with respect to verifying employees
earnings. Those two words have been removed. Another agency stated that
this section should be reworded so as not to limit the kinds of
computer matches which may be performed with records of State agencies.
This suggestion is being adopted as well.
Section 10.540(b)
One labor organization suggested that the second sentence of
Sec. 10.540(b) be changed from ``a claim has been made for a specific
period of time'' to ``a claim has been approved for a specific period
of time * * *'' However, the recommended change would change the focus
of this portion of Sec. 10.540(b) from the reasonable expectation of
the beneficiary to a determination of OWCP, and would therefore be
inconsistent with the remainder of this subsection, which states that
OWCP will not provide written notice before it terminates compensation
``when the beneficiary has no reasonable basis to expect that payment
of compensation will continue.'' Therefore, the suggested change is not
made. However, two minor wording changes have been made to clarify the
meaning of two clauses in the third sentence.
Section 10.540(c)
A labor organization suggested wording changes that would, in
essence, provide employees who refuse to accept or perform suitable
work additional procedural safeguards that exceeded those described in
Sec. 10.516. However, the procedures in Sec. 10.516 are based on the
ECAB's decision in Maggie L. Moore, 42 ECAB 484 (1991), reaffirmed on
recon., 43 ECAB 818 (1992). OWCP sees no basis to add further
procedures in this area.
One agency was under the impression that this section, which states
(among other things) that OWCP will not provide written notice before
it terminates compensation based on a ``failure or refusal to either
continue performing suitable work or to accept an offer of suitable
work,'' was inconsistent with the notice provided in these situations
pursuant to Sec. 10.516. However, the two regulations are not
inconsistent since the notice provided under Sec. 10.516 informs the
employee of OWCP's determination that a particular position is
suitable, whereas the notice contemplated by Sec. 10.540 informs the
employee of the impending cessation of his or her compensation rather
than a finding on a preliminary issue such as suitability.
Therefore, for example, once an employee has received the notice
required by Sec. 10.516 and has refused an offer of suitable work, OWCP
will issue a decision terminating the employee's monetary benefits
without any prior written notice to that effect. The first sentence of
Sec. 10.540(c) is being amended to include the word ``terminated''
before ``suspended or forfeited'' to account for all of the possible
ways in which OWCP may end compensation payments.
Section 10.541(b)
An agency suggested that the word ``Substantial'' be inserted
before the word ``Evidence'' at the beginning of this section, which
addresses the kinds of evidence which will affect OWCP's proposed
action to reduce or terminate benefits. In practice, evaluations of
evidence received when pre-termination notice has been issued always
require judgment and discretion on the part of OWCP staff. This wording
change would have no effect of any significance on the meaning of this
subsection.
A labor organization suggested substituting ``finding and award
under 5 U.S.C. 8124'' for ``decision'', but here again, such a wording
change would have no apparent effect of any significance on the meaning
of this subsection.
Section 10.600
One agency proposed giving agencies the right to seek review of
decisions. Since proceedings under the FECA are non-adversarial, there
is no statutory basis for providing the agencies with the right to seek
review of benefit determinations.
Two employing agencies suggested that the phrase ``initial final
decision'' in the first sentence is confusing. OWCP concurs, and the
phrase has been changed to ``formal decision''.
Section 10.607
The existing rule, unchanged in the proposal, is that the claimant
has a right to reconsideration of any decision if requested within one
year of the date of the last merit decision. Three labor organizations
noted that the proposal does not reflect OWCP's practice of including
ECAB decisions among the ``merit decisions'' the date from which the
one year begins to run.
Any suggestion that OWCP should review or reconsider an ECAB
decision is inappropriate. OWCP and ECAB are separate and distinct
entities. The ECAB is the highest appellate authority under the FECA
and its decisions are binding on OWCP. Since OWCP has no authority to
review decisions of the ECAB, OWCP has interpreted its |
