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Division of Federal Employees' Compensation (DFEC)

Procedure Manual

FECA Part 2

Part 2 of the Procedure Manual has been divided into groups to make it easier for you to search and find the information you are looking for.

Group 1 – Adjudication of Claims

2-0700

Death Claims

2-0800

Initial Development of Claims

2-0801

Time

2-0802

Civil Employee

2-0803

Fact of Injury

2-0804

Performance of Duty

2-0805

Causal Relationship

2-0806

Initial Acceptances

2-1401

Initial Denials

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Chapter 2-0700, Death Claims

Paragraph and Subject

Date

Trans. No.

Table of Contents

04/02

02-08

 

04/10

10-06

 

02/13

13-06

1. Purpose and Scope

08/94

94-32

2. Policy

08/94

94-32

 

04/02

02-08

3. Authority

08/94

94-32

4. Responsibilities

08/94

94-32

5. Initial Processing

08/94

94-32

 

09/95

95-34

 

11/96

97-02

6. Adjudication

08/94

94-32

 

07/97

97-19

7. Compensation to Widow/Widower

08/94

94-32

 

11/96

97-02

8. Compensation to Children

07/00

00-09

 

08/94

94-32

9. Compensation to Parents

08/94

94-32

 

11-96

97-02

10. Compensation to Siblings, Grandparents and Grandchildren

08/94

94-32

 

06/98

98-05

11. Payments

08/94

94-32

12. Apportionment

08/94

94-32

13. Third-Party Cases

08/94

94-32

14. Burial Expenses

08/94

94-32

15. Termination of Employee Status

08/94

94-32

16. Disappearance Cases

08/94

94-32

17. Periodic Roll Review

08/94

94-32

18. Suspension of Benefits

08/94

94-32

19. Closure

08/94

94-32

20. Gratuity from Employing Agency

11/96

97-02

21. FECA Death Gratuity

4/10

10-06

 

02/13

13-06

22. Additional Payment Considerations

02/13

13-06

 

Exhibits

1. Percentages of Entitlement

 

 

Page 1 (Link to Image)

08/94

94-32

Page 2 (Link to Image)

08/94

94-32

2. Entitlement of Multiple Payees (Link to Image)

08/94

94-32

3. Sample Letter Suspending Benefits When Report of Dependents is Not Received

08/94

94-32

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1. Purpose and Scope. This chapter describes procedures for developing and adjudicating death claims under the FECA. It discusses entitlement to monthly compensation benefits, funeral and burial expenses, and 24-month lump-sum payments.

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2. Policy. Death claims generally take precedence over other types of claims, and inquiries about them should be answered with speed and sensitivity. Great care must be taken in adjudicating these cases to ensure that dependents of a deceased employee do not suffer undue hardship because of delay in adjudication. Death benefits are subject to garnishment for overdue child support or alimony payments upon submission of proper documentation from a state agency or a court order (20 CFR 10.423).

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3. Authority. Death benefits to dependents of employees who die from job-related illness or injury are outlined in 5 U.S.C. 8101 (6-11 and 17), 8102, 8119-8122, and 8133 (which also addresses administrative costs related to terminating the decedent's status as a Federal employee). Section 8134 discusses funeral and burial costs and expenses for transportation of the body, and Section 8135 covers lump-sum payments.

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4. Responsibilities. The Office of Workers' Compensation Programs (OWCP) and the parties to the claim have the following obligations in death claims:

a. OWCP. Upon receipt of a new death claim or notice that such a claim is about to be filed, the Claims Examiner (CE) or Supervisory Claims Examiner (SCE) should telephone the surviving spouse or other close family member. The caller should briefly and politely convey knowledge of the death, express sympathy over the event, and state the desire to assist as much as possible in processing the claim. The caller should advise the family member to expect to receive a postcard bearing the case file number and district office's address, as well as a separate letter requesting routine information needed to process the claim. The caller should give a telephone number and assurance that he or she will be available to discuss the claim as needed.

The CE is responsible for advising claimants and employing agencies how to process a death claim. This includes furnishing claim forms and instructions for obtaining evidence. Because evidence in the custody of a Federal establishment is more readily available to OWCP than to a claimant, it is the CE's obligation to secure such evidence. Also, the CE should render a decision on each case as soon as possible to avoid delay in payment of benefits or exercise of appeal rights.

b. Claimant. The claimant is responsible for giving notice of death (5 U.S.C. 8119) and has the burden of proving a relationship between an employee's death and factors of Federal employment. Except where the relationship between the death and the employment is obvious, the claimant must present medical evidence relating the death to the injury. See Bernice W. Curtis, surviving wife of Oscar Lee Curtis (1ECAB 95), and Rose Martin, claiming as widow of Bruce Martin (24 ECAB 243).

c. Employing Agency. Section 5 U.S.C. 8128 requires the employing agency to report to OWCP any injury resulting in death, and to provide such supplementary reports as OWCP may require. The agency should be asked to assist in compiling and submitting evidence required from the claimant and witnesses except where adjudication occurs long after the decedent has been removed from the agency's rolls, and the agency no longer retains records of the decedent's employment. The claimant or OWCP must obtain statements from witnesses no longer on the agency's rolls.

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5. Initial Processing.

a. Reports of Death and Claim for Compensation. When an employee dies in the performance of duty, the employing agency must report the death immediately to OWCP by telephone or telefax so that an autopsy may be considered. As soon as possible, the agency must complete and submit Form CA-6, Official Superior's Report of Employee's Death. In accordance with 5 U.S.C. 8119, an eligible beneficiary specified in 5 U.S.C. 8133 or someone acting in his or her behalf must give notice of death on Form CA-5 or CA-5b. A death case will be created upon receipt of any such message or forms.

b. Timeliness. Survivors must give written notice within 30 days of the date of death, but the timely filing of a disability claim will satisfy the time requirements for a death claim based on the same injury as long as the claim is filed during the dependent's lifetime. This provision does not apply to the dependent's heirs or estate (see Ned C. Lofton (John C. Lofton), 33 ECAB 1497).

(1) For an injury occurring on or after September 7, 1974, the time requirements are also satisfied if the immediate supervisor had actual knowledge of the death within 30 days, provided the knowledge was such as to put him or her reasonably on notice of an employment- related death.

(2) If written notice was not given, or the immediate supervisor did not have actual knowledge of the death within 30 days, or a timely disability claim was not filed for the injury on which the death claim is based, compensation benefits may not be allowed unless an original claim for death benefits was filed within three years after the death, or within three years of the date the claimant was aware, or reasonably should have been aware, that the death was due to an employment-related disease.

c. Notice to Survivors of Right to Claim Compensation. All efforts to obtain a claim from survivors must be fully documented in the file.

(1) Eligible Survivors. The relationship of the survivor to the deceased is determined as of the date the death occurred (dependents who may be entitled to benefits are discussed in paragraphs 7-10). Section 8110 defines the classes of persons who qualify as "dependents" and thereby come within its scope. Those not specified are not included (see William S. Capeller, M.D., 28 ECAB 262).

(2) Spouses and Children. The spouse should be notified in writing of the right to claim compensation (Form CA-1064 may be used for this purpose). If no reply to this letter is received, a second notice will be sent 60 days later. In cases involving minor children, particularly orphans, the CE must send at least two notices to the guardian or custodian of the child. The case may be closed if no claim is received or if the replies to these notices indicate that further follow-up is not needed.

(3) Other Dependents. Generally, only one notice of the right to claim compensation need be sent to a survivor other than a spouse or child. If no claim is received within 60 days, the case may be closed as provided in paragraph 18 below.

(4) Compensation Due at Death. The CE should send Form CA-1085 to the administrator of the estate or to the next of kin to determine if compensation was due at death and, if so, to whom the money should be sent. See paragraph 14c below concerning payment of funeral and burial expenses from compensation due at death.

d. Relationship Between Disability and Death File. If a death is claimed due to an injury already of record, the death case should be doubled into the disability case under the number already assigned to the disability case.

e. Autopsy Reports. Initial reports of death received by telephone or telefax within 48 hours of death should immediately be brought to the attention of the District Medical Adviser (DMA) so that the need for an autopsy can be determined before burial, assuming that the cause of death is not obvious. If an autopsy appears to be necessary, the DMA will telephone or prepare a telefax to the next of kin requesting permission to perform the procedure, which will be carried out at OWCP expense (see FECA PM 3-400).

f. Development. Upon receipt of the case, and after completion of the telephone call noted in paragraph 4a above, the CE will send Form CA-1063 or a narrative equivalent to the employing agency, and attach Form CA-5 or CA-5b and Form CA-6. If the name and address of the spouse are known, Form CA-1064 may be sent directly. If a claim is received, the case should be developed in accordance with the five basic requirements as described in FECA PM 2-801 through 805. Form CA-1072 or a narrative letter may be used to obtain information needed to establish causal relationship. In addition, the employing agency should be asked about pay rate and health benefits information, and the claimant must also submit the following evidence:

(1) Death certificate.

(2) Name(s) and address(es) of next of kin.

(3) Marriage certificate (civil certificate).

(4) Birth certificate for each child (to show the legal relationship upon which the claim is based).

(5) Divorce, dissolution, or death certificate for prior marriages.

(6) Itemized burial bills, receipted if paid (see paragraph 14).

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6. Adjudication.

a. If the record shows that any of the five basic requirements with regard to the employee's death is not satisfied, or the claimant is ineligible for benefits, the CE will prepare a formal decision (see FECA PM 2-1400). Form CA-1079 is used to transmit the decision. If the case satisfies the five basic requirements and there is at least one eligible beneficiary, the CE will:

(1) Complete Form CA-674, which is a checklist with a section which applies specifically to death cases. The form is a permanent part of the record and should remain at the top of the file.

(2) Obtain the concurrence of the SCE in accepting the case as indicated by certification of the CA-674.

(3) Initial and date Form CA-800 to indicate the acceptance.

(4) Determine whether a dual benefits situation exists with respect to benefits from the Office of Personnel Management or the Veterans Administration (VA) and take appropriate steps (see FECA PM 2-1000).

(5) Complete Form CA-24, FECA Fatal Benefit Payment worksheet, to authorize payment of applicable benefits if no dual benefits situation or other impediment to payment exists.

(6) Advise the claimant of the acceptance by narrative letter, which should contain information regarding:

(a) Four-weekly and monthly compensation entitlement for each eligible beneficiary (see paragraphs 7 through 10. The amount should be certified before release of the letter.)

(b) "Lump Sum" provision upon remarriage, if applicable (see paragraph 7).

(c) Basis for continued entitlement of children (see paragraphs 8 and 10).

(d) Amount of allowable burial expenses (see paragraph 14).

(e) Entitlement to $200 administrative fee (see paragraph 15).

(f) Requirements for election if dual benefits are at issue (see FECA PM 2-1000).

Entitlement to compensation begins the day after death and is determined according to the schedule from 5 U.S.C. 8113 (see Exhibit 1 Page 1 (Link to Image), Page 2 (Link to Image)). When the beneficiaries are placed on the roll, the CE should prepare Form CA-180, Compensation Order (Death).

b. Where no one is eligible for compensation, or where the eligible beneficiaries must first make an informed election, the burial benefits and administrative closing payment may be made immediately to the appropriate parties, using Form CA-24.

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7. Compensation to Widow/Widower. To determine if a spouse is entitled, the CE should examine the status of the marriage at the time of the employee's death. If neither the decedent nor the surviving spouse was previously married, a copy of the marriage certificate will establish that the survivor is an eligible beneficiary. If either was married previously, the surviving spouse must also submit copies of the divorce or annulment decree showing dissolution of the previous marriage, or death certificate showing the demise of the former spouse, as the case may be.

a. Living Circumstances. If the surviving spouse was not living with the deceased at the time of death, the CE should investigate the circumstances surrounding the separation. According to 5 U.S.C 8101(6) and (11), a spouse separated from the decedent must have been "living apart for reasonable cause or because of. . . desertion." The following examples show how the facts may apply in different cases to determine reasonable cause:

(1) Where the parties maintain separate abodes but all other evidence points to the existence of a marital relationship at the time of death, the claimant is entitled to compensation benefits as the surviving spouse.

(2) If the parties lived apart for reasonable cause (e.g., hospitalization due to the fatal illness), or because of desertion by the employee, entitlement exists. If evidence shows that the spouse claiming benefits deserted the employee, the CE must develop the case to determine whether the spouse did in fact desert the employee. This may require personal investigation by an OWCP representative.

(3) If the parties lived apart for other reasons, entitlement may exist if the spouse was dependent on the decedent. The CE should obtain a copy of any court order directing the decedent to contribute to the spouse's support. If none existed, obtain letters from the family explaining the reason(s) for the separation and stating whether the surviving spouse received contribution from and was dependent upon the employee.

(4) If common law marriage is at issue, the CE must determine the status of the marriage according to the law of the state(s) in which the participants lived. The CE should obtain the concurrence of the SCE in determining eligibility.

b. Remarriage. Prior to September 7, 1974, all remarriages resulted in termination of compensation benefits. For remarriages between that date and May 28, 1990, entitlement continues if the beneficiary is age 60 or over (see 5 U.S.C. 8133(b)(1)), but not if he or she is under that age. After May 29, 1990, entitlement continues if the beneficiary is age 55 or over (see Public Law 101-303), but not if he or she is under that age.

(1) To terminate compensation on the ground that a spouse has remarried, OWCP has the burden of establishing that the subsequent marriage took place. In the case of a common law marriage, OWCP must establish that the parties have met the criteria of the state where the parties reside. Cohabitation in and of itself is not sufficient to establish the existence of a bona fide common law marriage unless it is accepted by the state in which the spouse resides (see Marilyn M. Videto (William R. Videto), 23 ECAB 207, and FECA Program Memorandum 156).

(2) Although entitlement to benefits ends with a spouse's remarriage before age 55 (or 60, depending on the date of remarriage), benefits may be reinstated if the marriage is annulled. In the case of a voidable marriage, compensation may resume as of the date the marriage is terminated, whereas in the case of a void marriage, compensation may resume as of the date of the marriage. However, a beneficiary who remarries and is subsequently divorced does not again become entitled to benefits. (See FECA Program Memorandum 4.)

(3) Following a spouse's remarriage, the other beneficiaries are entitled to compensation at the rate they would have received had they been the only beneficiaries.

(4) Under Section 8135(b), a lump sum payment may be made to a spouse who remarries before reaching age 55 (or 60, depending on the date of remarriage). The sum payable is equal to 24 times the amount of monthly compensation paid just prior to the remarriage. If the remarriage later proves to be void or voidable, the entire lump sum award then becomes an overpayment subject to waiver or recovery. Continuing payments should not be withheld while this overpayment issue is being resolved. (See FECA Program Memorandum 150.)

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8. Compensation to Children. Section 8101(9) defines a "child" as one who is under 18 years old, or incapable of self-support, or a full-time student under age 23. Included are stepchildren and children who are legally adopted prior to the parent's death according to the laws of the state having jurisdiction (see Marie Jean Kennedy (Fred E. Kennedy), 11 ECAB 247 (1959)).

Illegitimate children and posthumous children of the deceased are also entitled to compensation (a posthumous child is entitled to benefits effective the date of its birth). Excluded are married children and foster children. Compensation payable to, or on behalf of, a child is continued until the child dies, marries, or becomes 18, or, if over 18 and incapable of self-support, becomes capable of self-support.

a. Student Status. Where a child has reached the age of 18 and has indicated no intention to attend school after high school, compensation should cease at the end of the month in which the child graduated from high school. Compensation paid on behalf of an unmarried child which would otherwise be terminated at age 18 may continue, however, if the child is a student pursuing a full-time course of study or training at an accredited institution. Such benefits may be paid for four years of education beyond the high school level, or until the beneficiary reaches age 23, whichever comes first [see 20 C.F.R. 10.417 and 5U.S.C. 8101(17)].

(1) A "year of education beyond the high school level" is defined as:

(a) The 12-month period beginning the month after the child graduates from high school, if the child has indicated an intention to continue in school during the next regular session, and each successive 12-month period, provided that school attendance continues.

(b) The 12-month period beginning on the date the child actually enters school to continue education, if the child has indicated that he or she will not attend during the next regular session, and each successive 12-month period, provided that attendance continues.

(2) A year of entitlement based on student status means any year during all or part of which compensation is paid based on school attendance. Therefore, if a beneficiary should decide for any reason not to attend school for part of a year during which benefits were paid on account of student status, that beneficiary would be charged with having used an entire year of eligibility out of the allotted four years, even though compensation terminates when the beneficiary leaves school. If a child has already completed one or two more years of college before turning 18, they would be deducted from the four years of entitlement.

(3) If the child does not begin post high school education immediately but later decides to enter school full-time, compensation would begin on the date school attendance began, as stated in (1)(b) above. In this situation, the individual would remain entitled to four years of compensation based on school attendance, provided he or she did not turn 23. In either case, compensation is continued during any interval between school terms if the interval does not exceed four months and if the beneficiary demonstrates a bona fide intent to continue in school the following year. In the absence of specific contrary evidence, the CE may consider the student's decision to begin or continue full time studies a bona fide statement of intent.

(4) Where a student is prevented by reasons beyond his or her control (such as brief but incapacitating illness) from continuing in school, compensation may be continued for a period of reasonable duration. However, any such period would be counted toward the four years of entitlement. The CE will determine what constitutes "reasons beyond the control" of the beneficiary and decide what may be considered a period of reasonable duration during which compensation may be continued. The CE will also place a memorandum in the file outlining the circumstances of the case and the reasons for the decision. (See paragraph (7)(c) below concerning declarations of overpayments in these situations).

(5) The CE obtains proof of student status through the use of Forms CA-1615 and CA-1617. The CA-1615 should be forwarded to the dependent's parent or guardian at least three months before the dependent's 18th birthday. Where compensation is being paid for school attendance, Form CA-1617 should be sent twice each year at least two months prior to the date the current semester (or quarter, etc.) is scheduled to end. The CE should note on the CA-674 the number of years of eligibility remaining for each beneficiary based on student status.

(6) If the beneficiary is still receiving student benefits on turning 23, compensation should terminate at the end of that semester or enrollment period.

(7) Following are examples of common situations:

(a) John Smith's birth date is February 10, 1977. He has received compensation since 1983, and he will graduate from high school in May 1994. John has completed Form CA-1615 to indicate that he will attend college on a full-time basis starting in the fall of 1994. John's first "year of education beyond the high school level" will begin in June 1994, even though he is still entitled to benefits by virtue of being under 18 until February 1995.

(b) Steve Jones' date of birth is January 13, 1976. He received compensation beginning in 1984 and graduated from high school in June 1994. He completed Form CA-1615 to indicate that he would not attend college. He was entitled to receive compensation through June 1994, the month of his high school graduation (he was 18 when he graduated). Should Steve decide at some future date to continue his education, he would begin receiving compensation the month that he actually entered school and would be entitled to the entire four years of eligibility until he turns 23.

(c) Jane Doe's date of birth is April 15, 1974, and she received compensation beginning in 1988. She graduated from high school in May 1992 and indicated on Form CA-1615 that she would continue her education in the fall. Because of this evidence of a bona fide intent to attend school, her compensation was continued over the summer. In September she advised OWCP that she had reconsidered and decided to work instead of attending school.

Compensation was terminated effective October 1, 1992, without declaring an overpayment since 5 U.S.C. 8101(17) states that an individual "is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 4 months and if he shows to the satisfaction of the Secretary that he has a bona fide intention of continuing to pursue a full-time course of study" during the following semester.

Since Jane received compensation after high school based on school attendance, the period for which she was paid represents one full year of eligibility out of her four year allotment. Had she decided at some future date to attend, she would have had three years of eligibility remaining. However, if she had decided to begin attending school in, for example, January 1993, she would still have been within her first year of eligibility, which began in June 1992 and ended in May 1993.

b. Marriage. A dependent child's eligibility for benefits terminates on the date of the child's marriage. A child whose marriage ended prior to the employee's death will not be barred from receiving survivor's benefits if otherwise entitled. A child whose marriage is annulled after the employee's death is eligible for survivor's benefits from the effective date of the annulment or the date of death (see FECA Program Memorandum No. 4) if otherwise entitled, but a child who is divorced or widowed is not eligible for benefits.

c. Children Over 18 Who are Incapable of Self-Support. When claims are made by or for children over 18 who are physically or mentally incapable of self-support, the CE must investigate the extent and expected duration of the illness involved.

(1) Eligibility. To be entitled to benefits, a child over 18 at the time of the employee's death must have been incapable of self-support at the time of the death by reason of a mental or physical disability. Also, a child over 18 who becomes incapable of self-support after the employee's death, but before reaching 18, is eligible. A child over 18 is not entitled to benefits because of inability to obtain employment due to economic conditions, lack of job skills, etc.

(2) Definition. A claimant is incapable of self- support if his or her physical or mental condition is such that he or she is unable to obtain and retain a job, or engage in self-employment that would provide a sustained living wage. This determination must be based on medical evidence. When medical evidence demonstrates incapacity for self-support, this determination will stand unless refuted by the sustained work performance.

(3) Medical Evidence. A medical report covering the child's past and present condition must be submitted and referred to the DMA to determine whether it establishes incapacity for self-support. A physician's opinion must be based on sufficient findings and rationale to establish unemployability.

d. Method of Payment. In death cases, payment of compensation is made to a child as follows:

(1) Under Age 18. Compensation will be paid to a parent, guardian, or other competent individual responsible for the child's welfare. If a child under age 18 without a parent, guardian or other individual responsible for supervision is found to be competent to receive payments, compensation can be paid directly to the child. Sources of information concerning competency include local juvenile authorities, school officials, police, and relatives. The CE should obtain information from such sources as well as any other pertinent evidence, then make a determination of competency. If necessary, the CE should ask juvenile authorities in the area of the child's residence to appoint a conservator.

(2) Students. Compensation will be paid directly to a child who is a student if he or she is of legal age in the state of residence. If not, and the parent or guardian requests payment of the compensation, the CE must determine whether direct payment of compensation would be in the child's best interest, based on factors in the specific case.

(3) Physically or Mentally Incompetent. On request, compensation will be paid directly to a child of legal age who is incapable of self-support due to physical disability. Compensation on behalf of mentally incompetent individuals must be paid to a parent, guardian, or other person responsible for the individual's welfare.

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9. Compensation to Parents. Parents, stepparents, and parents by adoption may be entitled to survivors' benefits, but foster parents and in-laws are excluded. Proof of parentage is established by a copy of the birth certificate for the employee, or, in the case of adoption, copies of the legal documents. In the case of a stepparent, the file must contain proof of the stepparent's marriage to the natural or adoptive parent of the deceased, along with the birth certificate indicated above.

a. Whole or Partial Dependency. Section 8133(a)(4) provides benefits to parent(s) who were wholly or partly dependent on the employee at the time of death. Note that this differs from the provision of Section 8110(a)(4), which provides augmented compensation to a disabled employee on the basis of a parent wholly dependent on and supported by the employee. Form CA-1074 may be used to develop information bearing on this issue.

b. Dependency Criteria. The test of dependency under the FECA is not whether the claimant is capable of self-support without the amount which was previously provided by the deceased. "It is only necessary to show that the person claiming as a dependent. . .looked to and relied upon the contributions. . .in whole or in part, as a means of maintaining or helping to maintain a customary standard of living" (see Viola Davidson, 4 ECAB 263).

c. Percentage of Entitlement. The amount of entitlement for parents is stated at 5 U.S.C. 8133(a)(4) as follows:

(1) If there is no widow, widower, or child:

(a) 25% if one parent was wholly dependent on the employee at the time of death and the other was not dependent at all.

(b) 20% to each if both were wholly dependent.

(c) A proportionate amount in the discretion of the Secretary of Labor if one or both were partly dependent.

(2) If there is a widow, widower, or child, a portion of these percentages may be paid such that the total amount paid to the widow or widower, children and parents will not exceed 75%.

d. Minimum Payable. The minimum amount to which partially dependent parents are entitled was established by the decision in the case of Minnie Ballard, 8 ECAB 716:

To establish the minimum parental compensation entitlement, ...first determine the percentage that the decedent's contribution [during the 12 months immediately preceding death]. . .bears to the total moneys the parent received from all sources during the same period of time. Multiply the resulting percentage by the 25% [to one parent partially dependent or 20% to each if there are two parents partially dependent] and the result thus obtained is the payable percentage of dependency.

e. Change in Employee's Financial Status. Where the employee's earnings and/or contributions changed significantly over time, the controlling factors are those present at the time of death. In the case of an employee whose Federal earnings represented his or her first full-time employment, the most important factor in determining the amount of compensation payable is the amount the employee was earning and contributing at the time of death, not the amount earned and contributed during the preceding year (see Robert C. Boyd (Roger D. Boyd), 18 ECAB 639).

f. Criteria for Continued Payments. Survivor's compensation is payable from the day after death until the parent dies, marries, or ceases to be dependent. A parent whose entitlement is based on financial dependency should be removed from the rolls when the current income received, less compensation, equals or exceeds the total income from all sources at the time of death. CPI adjustments should be included when making this determination. OWCP has the burden of proving under this formula that the parents are no longer dependent.

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10. Compensation to Siblings, Grandparents, and Grandchildren. As with parents, the relationship on the date of death and the degree of financial dependence determines entitlement to benefits for siblings, grandparents, and grandchildren. The term "sibling" includes stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption. The category of grandparents does not include step-grandparents. The term grandchildren includes all biological and adopted grandchildren, whether born into a marriage or not, but does not include step-grandchildren. Unlike posthumous children, posthumous siblings are not entitled to benefits, even if the mother of the deceased employee was dependent on the employee at the time of death and she was pregnant, the reasoning being that the unborn child was dependent on its mother, not the employee, prior to its birth (see J. Quackenbush, 19 ECAB 251).

a. Documentation. The person claiming compensation, or someone acting on this person's behalf, must complete Form CA_5b. Proof of relationship and proof of dependency at the time of death are required. Evidence which establishes physical or mental incapacity is also required if a sibling or grandchild is over age 18 and incapable of self_support.

(1) Proof of relationship is established in the same manner as for a child or parent.

(2) Proof of dependency is established in the same manner as for a parent, but the percentage of entitlement for partly dependent beneficiaries differs:

(a) Section 8133(a)(5)(C) allows 10% to a partly dependent sibling, grandparent, or grandchild rather than the "proportionate amount" allowed to parents by 5 U.S.C. 8133(a)(4).

(b) Therefore, the CE need not calculate the prorated degree of dependency required by the Minnie Ballard decision (8 ECAB 716).

(3) Proof of physical or mental incapacity is established in the same manner as for a child over 18 years of age.

(4) Proof of student status is established in the same manner as for a child of the deceased.

b. Percentage of Payments. The percentages payable are as follows, in accordance with Section 8133(a)(5):

(1) 20% if one survivor was wholly dependent on the employee at the time of death.

(2) 30% if more than one survivor was wholly dependent, divided among the survivors share and share alike.

(3) 10% if no survivor was wholly dependent but one or more was partly dependent, divided among the survivors share and share alike.

If there is a widow, widower, or child, a portion of these percentages may be paid such that the total amount paid to the widow or widower, children and siblings, grandparents, and/or grandchildren will not exceed 75%.

c. Length of Payment. Compensation is payable until:

(1) The sibling or grandchild dies, marries or becomes 18 years old, or, if over age 18 and incapable of self_support, becomes capable of self_support.

(2) The grandparent dies, marries or ceases to be dependent.

d. Marriage. As with children, a beneficiary in this group who is otherwise entitled may receive survivor's benefits if his or her marriage terminates prior to the employee's death. Annulment of a beneficiary's marriage may result in re-entitlement from the effective date of the annulment if the survivor is otherwise entitled.

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11. Payments. Pay rate determinations are addressed in FECA PM 2-900. The minimum (GS-2) and maximum (GS-15) basic rates of pay provided by Section 8102 are applicable in death cases, and the amount to which survivors are entitled can never exceed 75% of the decedent's pay rate (before CPI adjustments). To calculate the monthly pay rate, the CE should determine:

a. The Effective Date of the Pay Rate. Compensation for death is based on the pay rate on the date of injury, date disability began, or date of recurrence, or following re-computation under Section 8113.

b. The Monthly Wage. If the employee was working in private industry when death or disability occurred, non- Federal pay may be used in determining the pay rate (see Elizabeth F. Keough, 35 ECAB 347.

c. Entitlement to Health Benefits Coverage. The survivors will be eligible for continued coverage if the decedent was enrolled at the time of death in a health benefits plan for which the agency (or OWCP) was making deduction. (Note that when only a spouse survives, the health plan needs to be changed from a family plan to a self-only plan.)

d. The Number of Beneficiaries. When a survivor dies or otherwise becomes ineligible for compensation, the benefits of the remaining survivors are recomputed. This action usually results in an increase for each beneficiary, though payments may not exceed the maximum 75%.

e. The Number of Payees. Payment to a subsidiary recipient as well as a primary beneficiary will always involve multiple payees, since the subsidiary survivor always gets a separate check (see Exhibit 2 (Link to Image)).

f. CPI Entitlement, if any. Such entitlement depends on whether the deceased employee was receiving disability compensation prior to death.

(1) If so, survivors are entitled to CPI adjustments effective more than one year after compensable disability began, even though the date of death may be less than one year prior to the effective date.

(2) If not, survivors are entitled to CPI adjustments beginning one full year after the date of death, even if an earlier pay rate is used.

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12. Apportionment. The FECA provides that a spouse and children have the first right to compensation, which means that other classes of dependents may be excluded if necessary. Thus, the subsidiary dependents (i.e., parents, siblings, grandparents, and grandchildren) may receive compensation only after the entitle- ments of the spouse and/or children have been satisfied fully.

The only exception to this rule occurs where OWCP reapportions the award in the manner provided by Section 8133(d). For example, in the rare event that the survivors include a spouse, two children, and dependent parents, the spouse and the children are entitled to 75%, and the parents are not entitled to benefits. The CE may invoke Section 8133(d), however, to designate a small amount (e.g., 5%) for the parents. Many factors influence this decision. The CE should:

a. Obtain the spouse's opinion.

b. Determine whether the spouse has other income.

c. Consider the actual amount of benefits in proportion to need (e.g., if they are sizable/sufficient for "primary" beneficiaries, then allocating a small amount for parents would not be harmful).

d. Determine whether the parent(s) live with the spouse. If so, benefits may not need to be divided as the parents will receive them indirectly.

The CE should prepare a memorandum for the file fully explaining the rationale for or against reapportionment, and the SCE must certify it.

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13. Third-Party Cases. The CE is responsible for referring to the designated CE any case in which third-party liability may exist (see FECA PM 2-1100). In accordance with Section 8132, a third-party recovery will result in suspension of death benefits to the recipients of the settlement until the credit is absorbed. During this period, any beneficiaries who did not participate in the third-party recovery will continue to receive compensation at the rate established.

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14. Burial Expenses. Section 5 U.S.C. 8134 provides for the payment of burial and funeral expenses by the U.S. not to exceed $800. Like related medical expenses in a disability claim, funeral expenses in a death case may be paid even if the case as a whole is denied on the basis of timeliness as long as causal relationship is established and the requirements for giving notice are met. They may be paid without regard to any life insurance or burial insurance policy which may be in force.

a. Allowable Expenses. Normally the following services are paid: transporting body from place of death, embalming, shaving, dressing, clothes, storage, casket, vault, funeral services, clergy, hearse to cemetery, cars, lowering device, digging grave, grave rental, perpetual care of grave, grave marker, and funeral notice.

(1) Acceptability of other items must be determined on an individual basis according to necessity and reasonableness.

(2) Costs for such items as monuments, obituary notices, and copies of extra death certificates (one for the spouse and one for submission to OWCP are allowed) should be deducted from the itemized bill.

(3) When authorizing payment of the burial allowance, the CE should note on the burial bill which items are allowable. If the reason for allowing a specific item is not apparent, the notation should include a brief explanation of the reasons for allowing it.

b. Payments by Other Agencies. If another Federal agency pays any part of the burial expense for the deceased employee, OWCP's payment shall not exceed the difference between the amount paid by the other agency and $800.

Neither the $225 Social Security lump sum death benefit nor benefits from life insurance or burial policies are deducted from OWCP funeral benefits, however.

The VA will not authorize a burial allowance when the veteran dies from an injury or disability sustained in the performance of Federal employment. Since the VA is no longer the primary benefit payer in such cases, it is not necessary to check with the VA Regional Office (VARO) to determine the amount paid or payable. Rather, the VA will contact OWCP if it appears that the veteran was a Federal employee whose death was work-related. While the VA and OWCP have agreed not to exchange funds where elections are concerned, such a transfer will be made if burial expenses are awarded in error.

c. Method of Payment. OWCP can reimburse, in proportion to the part of the total expense paid, any person who paid part of the burial expenses. In no case will OWCP's payment for burial expense exceed the amount allowed under the FECA, and all claims for burial allowance must be accompanied by an itemized bill prepared by the undertaker who furnished the services. The order of payment is as follows:

(1) If a survivor furnishes proof of payment of burial costs, OWCP pays the $800 to the survivor. If burial costs have not been paid, the $800 is paid to the executor of the estate. If there is no legal representative and the bill is unpaid, the funeral director may claim direct payment. In most, if not all, legal jurisdictions in the U.S., undertakers and others who provide burial services are considered priority creditors, and they therefore have a priority claim against the proceeds of the decedent's estate and any entitlements the decedent's death might create.

(2) If the funeral bill is unpaid or a balance exists, direct payment must be made to the funeral home. For example, if a friend paid funeral expenses of $600 and an unpaid balance of $300 remains, and OWCP allows $550 ($800 less $250 from the VA), OWCP will pay the funeral home $300 with the balance of $250 going to the friend.

Section 5 U.S.C. 8130 prohibits assignment of compensation and exempts it from claims of creditors. Therefore, no claim for compensation due at death by an undertaker or other creditor may be recognized.

d. Transportation and Medical Costs. If the employee died away from home, charges for returning the body and the sealed casket may be paid over and above the $800 allowance. In cases where related medical and transportation expenses were incurred prior to death, the CE should authorize payment.

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15. Termination of Employee Status. An additional sum of $200 is payable to the personal representative of the decedent to reimburse the cost of terminating his or her status as a Federal employee. A spouse is considered to be the personal representative unless incompetent. If no spouse survives, the payment will be made to the administrator of the estate.

a. Pay Status. A personal representative is entitled to receive the $200 payment regardless of whether the deceased was in pay status with the employing agency at the time of death. For example, the personal representative of an employee who retired in 1973 and died of work-related causes in 1978 would be entitled to the $200 payment.

b. Employee Status. The $200 payment may be made only in cases of deceased employees as defined by Section 8101(1). Therefore, payment is usually not made to members of groups to which FECA benefits are extended by separate legislation, such as ROTC cadets, Civil Air Patrol volunteers, members of the National Teacher Corps, and non-Federal law enforcement officers. On the other hand, Peace Corps and VISTA volunteers and Job Corps enrollees are considered employees of the U.S. as defined in Section 8101(1) and are therefore entitled to payment of the $200.

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16. Disappearance Cases. Under 5 U.S.C. 5565, when a Federal employee has been missing for at least 12 months and no official report of death or the circumstances of continued absence has been received, the head of the employing agency is authorized to review the case and either continue the missing status, which may result in a continuance of pay status, or make a finding of death, which will terminate pay status. A finding of death must include the date on which death is presumed to have occurred, and a determination made under this section of the law is binding on all other agencies of the U.S. Such a determination can therefore be used as proof of death (in lieu of a death certificate) in a disappearance case. In such cases, especially those occurring outside the U.S., the claimant should be instructed to request such a determination from the employing agency if one has not been made.

a. Pay Status. In some disappearance cases the employee's pay is terminated as of the date of disappearance, while in others it is continued until an official finding of death is made. The claim file must show the date the employee's pay stopped, as compensation cannot be paid for any period prior to that date. If the presumed date of death and the date pay stopped are not the same, the latter date should be used to determine when compensation payments should begin.

b. Findings by Local Courts. In all disappearance cases occurring within the U.S. where a local court makes a finding of death and directs the issuance of a death certificate, OWCP will give full credit to all findings of the court and will not challenge the findings in another court. If no finding of death has been made, the claimant should be instructed to request one from a local court.

c. Unusual Cases. In some very unusual cases of disappearance, a finding of death may not be made. In such a case, the CE must determine whether death likely occurred and, if so, the date it occurred. Such a determination will necessarily require discretion and judgment, and the CE must obtain the best available evidence about the circumstances surrounding the disappearance. The CE should prepare a memorandum which outlines the facts and provides a recommendation for the SCE.

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17. Periodic Roll Review. The CE should review the case at least once a year to verify continuing entitlement to benefits, ensure that benefits are being paid at the proper level, resolve third party issues, and discontinue benefits when warranted. See paragraph 18 below concerning suspension of benefits for non-receipt of reports of dependents.

a. Rescission. Once OWCP has accepted a fatal case and paid benefits, the CE should not reexamine the basis for acceptance or attempt to rescind it unless the file contains blatant error or clear indication of fraud. A recommendation to vacate the original decision must be routed through the District Director to the Director for Federal Employees' Compensation for review and final decision.

b. Form CA-12, Claim for Continuation of Compensation. This form is sent annually to all recipients of death benefits. If the form has not been returned within 60 days of release, the CE should send a follow-up request for completion. Upon receipt of the form, the CE should check for changes in address, marital status, and financial dependency status. Particularly with elderly recipients of the form, the CE should be alert to changes in the beneficiary's signature; such changes may indicate that someone other than the intended recipient of benefits is completing the affidavit. The CE should also ensure that any address changes are also noted properly in the Automated Compensation Payment System (ACPS) and take any other actions required as noted below.

c. Widows and Widowers. If the spouse has remarried, the CE will need to determine her or his age at the time of remarriage. A widow or widower over age 60 (prior to May 29, 1990) or over age 55 (May 29, 1990 or later) is entitled to continue receiving monthly benefits. If the surviving spouse is younger, the CE must initiate action to terminate benefits and pay the 24-month lump sum.

d. Children, Grandchildren, and Siblings. Form CA-1615 should be released to the guardian three months before the child reaches the age of 18 to determine continuing entitlement to compensation on the basis that the child is a student or is incapable of self-support.

(1) Student Status.

(a) ACPS automatically deletes the records of beneficiaries when they reach age 18 and adjusts the percentages payable to other survivors. The CE should check the CP-285, however, to ensure that benefits are not interrupted if the child's entitlement continues after age 18.

(b) Form CA-1617 should be released twice a year to determine continuing entitlement to compensation based on student status. The CE will need to determine if the student is regularly pursuing a full-time course of study; if the student has completed four years of education beyond the high school level; the end of the semester or enrollment period in which the student turns 23; and any interim periods between school years. Form CA-1617 also includes a question concerning the election of VA or other educational benefits.

(2) Incapable of Self-Support. A person entitled to benefits because of incapacity for self-support, or his or her guardian, should be asked to submit medical evidence to support continued payments of compensation. Such requests should be made at least yearly.

e. Parents and Grandparents. Under 5 U.S.C. 8133(b)(3), survivors' benefits cease when "a parent, or grandparent dies, marries, or ceases to be dependent."

(1) A parent or grandparent should be removed from the rolls when the current income less compensation equals or exceeds the total income from all sources adjusted to compensate for changes in the cost of living at the time of death. This action is taken because the beneficiary would no longer be dependent upon compensation to sustain a living standard equivalent to that enjoyed at the time of the employee's death.

(2) OWCP has the burden of proving that the parent or grandparent is no longer dependent. Approval authority in such cases rests with the SCE and cannot be delegated to the CE.

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18. Suspension of Benefits. Compensation for beneficiaries in death claims may be suspended for failure to provide timely reports concerning their status.

a. Determining if Benefits Should be Suspended. If reports requested on Form CA-12 and/or Form CA-1617 are not made in a timely manner, the CE should first determine if extenuating circumstances apply (for example, the beneficiary is hospitalized or has just moved and had no time to notify OWCP).

(1) If no extenuating circumstances exist, the following actions should be taken:

(a) If Form CA-12 has not been returned, all benefits should be suspended even if a current Form CA-1617 is in file for a college-age child unless the child is receiving benefits in his or her own name.

(a) If Form CA-12 has not been returned, all benefits should be suspended even if a current Form CA-1617 is in file for a college-age child unless the child is receiving benefits in his or her own name.

(2) If extenuating circumstances exist or the form is received but not substantially completed, the CE should advise the beneficiary of the specific information still required and indicate that benefits will be suspended within 30 days if the information is not received within that time.

b. Advising the Beneficiary. Suspension (whether of all benefits or the percentage paid for a particular dependent) should be accomplished by narrative letter which specifies the dependents whose compensation is being suspended; references the letter which was sent and the date; cites the pertinent regulation; and advises the claimant that benefits will be restored retroactively once the necessary information is received as long as it supports continuing payment. Appeal rights should be provided with this letter (a sample is shown in Exhibit 3).

c. Fiscal Action.

(1) Benefits should be suspended effective the beginning date of the next periodic roll cycle. No deductions for health benefits will be made during the period of suspension.

(2) If suspension is effected for a particular dependent, the percentage payable for other beneficiaries remains the same during the period of suspension. For instance, if a widow and student are receiving 45% and 15% respectively, and the student's benefits are suspended due to non-receipt of Form CA-1617, the widow should remain on the roll at 45%.

(3) The CE should take prompt action to restore benefits in cases where the requested information concerning dependents is received after benefits have been suspended. Compensation should be reinstated retroactive to the date of suspension where the evidence submitted supports the payment of benefits.

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19. Closure. The CE should take the following steps to close a death case:

a. Cancel any outstanding call-ups.

b. Write the reason for closure on Form CA-800 and Form CA-674.

(1) Where other benefits have been elected, the closing entry should identify the benefit elected, e.g., "elected Civil Service Retirement annuity."

(2) Where no claim is filed because there are no eligible dependents, the closing entry will be "no dependents"; otherwise, the closing entry will be "no claim filed."

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20. Gratuity from Employing Agency

Public Law 104-208 authorized payment of a gratuity not to exceed $10,000 to survivors of employees who died in the line of duty on or after August 2, 1990. These payments are made by employing agencies, not the OWCP. The payments do not constitute dual benefits, and no election is required. However, any burial and administrative expenses paid by the OWCP are deducted from the entitlement. CEs will therefore need to advise employing agencies of the amounts of burial and administrative expenses paid by the OWCP when requested to do so in particular cases.

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21. FECA Death Gratuity. The National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, amended the FECA, creating a new section 8102(a). The section establishes a new FECA benefit for eligible survivors of federal employees and Non-Appropriated Fund Instrumentality (NAFI) employees who die of injuries incurred in connection with service with an Armed Force in a contingency operation.

The new section 8102(a) states that the United States will pay a death gratuity of up to $100,000 to those survivors upon receiving official notification of the employee's death. Section 8102(a) also states that the United States will pay the death gratuity to the eligible survivors "immediately upon receiving official notification" of an employee's death. There is a retroactive payment provision, stating that the death gratuity will be paid for employees of certain agencies who died on or after October 7, 2001, due to injuries incurred in connection with service with an Armed Force in the theater of operations of Operation Enduring Freedom and Operation Iraqi Freedom. Regulations implementing the FECA death gratuity are set forth at 20 C.F.R. 10.900-916. The $100,000 death gratuity is offset and reduced by any other death gratuity paid for the same death.

All claims for benefits under 8102(a) will be processed by the Special Claims Unit in the Cleveland District Office. As a result, all claims for a death gratuity are to be transferred to Cleveland immediately upon receipt for handling and response. The original death claim, if applicable, should also be transferred to Cleveland at that time. Once received in Cleveland, each case will be assigned a specific claim number, beginning with the prefix "DG." A DG claim number will be assigned to each person making a claim. That means that more than one DG claim could be created as the result of one death. This also means that if a claim for a death gratuity is made in an existing FECA case, a new DG claim number will be assigned to the death gratuity – distinct from the existing FECA case number.

FECA death benefits payable under section 8133 and burial expenses payable under section 8134 of the Act do not constitute a dual benefit and, therefore, do not affect this FECA death gratuity payment made under section 8102(a).

More detailed procedures on processing these cases will be provided in Part 4 (Special Case Procedures) of the DFEC Procedure Manual.

  • Note: On December 31, 2011, Congress amended 5 U.S.C. 8102a, the law authorizing death gratuities under the FECA, by Section 1121 of Public Law 112-81. Pursuant to that amendment, federal employees may now designate the entire FECA death gratuity to an alternate beneficiary (previously, this designation was limited to 50% of the FECA death gratuity). Effective December 31, 2011, the employing agency is required to notify the federal employee's spouse, if one exists, if that employee designates a person other than the spouse to receive all or a portion of the FECA death gratuity. These changes took effect on enactment.

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22. Additional Payment Considerations. This paragraph discusses other payment considerations in death cases.

a. Period of Entitlement. For death cases, a beginning date is supplied for all beneficiaries, and an expiration date is provided for each individual claimant in accordance with the person's situation, e.g. eighteenth birthday, end of student status, etc.

If a widow/widower receiving death benefits dies, compensation is payable through the date of death, just as it is if a claimant dies while receiving compensation.

b. Compensation for Death. Compensation in death cases is always calculated on a monthly basis. When there is more than one claimant, the gross compensation is calculated for all beneficiaries and then prorated to determine each individual's compensation. Death benefits are always paid on calendar days.

(1) Periodic (28-day) payments are calculated as follows:

Monthly pay rate x compensation rate = amount (rounded to the nearest $.01) x 12 months per year ÷ 13 pay periods per year

(2) Supplemental payments (any period of calendar days not evenly divisible by 28) are calculated using calendar days:

Monthly pay rate x compensation rate = amount (rounded to the nearest $.01) x no. calendar days ÷ 30 days per month.

(3) If there is a widow(er) and children but only the widow(er) claims compensation under the FECA (while any children may elect to receive other benefits), the widow is only entitled to 45% of the pay, even though he/she may be the only one technically making a claim under the FECA.

c. Minimum (MIN) Compensation. In a death case, the CE should compare the current MIN to the deceased employee's pay rate. If the pay rate is less than the minimum, the MIN is used as a basis for computing each beneficiary's entitlement. If the pay rate is greater than MIN, the pay rate is used as a basis for compensation payment.

Compensation to a beneficiary may not exceed the deceased's monthly pay rate for compensation purposes (except by the addition of CPIs effective September 7, 1974). Therefore, if the compensation rate times a new MIN would be more than 100 percent of the pay rate, the new MIN is not applied, and the basic compensation becomes 100 percent of the pay rate. MIN rates are discussed in more detail in FECA PM 2-0901-13.

d. Maximum (MAX) Compensation. To determine whether a MAX applies in a death case, the combined compensation rate for all entitled beneficiaries must be computed and multiplied by the decedent's salary. All applicable cost-of-living increases must be added. If the total is greater than MAX, each claimant's entitlement is computed as a proportionate share of the MAX.

When a new maximum applies, each case previously paid at MAX must be recomputed to determine the new entitlement. If the recomputed total entitlement for all beneficiaries is less than the new MAX, each claimant may receive the regular entitlement. If not, a proportional share of the MAX is allotted to each claimant. MAX rates are discussed in more detail in FECA PM 2-0901-14.

e. Health Benefit Insurance (HBI) Deductions. If the claimant was enrolled in a Federal Employees Health Benefit Plan (FEHBP) at the time of death, deductions for HBI premiums will be taken from the compensation entitlement. Insurance deductions are discussed in more detail in FECA PM 2-0901-15 and 5-0400.

(1) Since death payments are made on the periodic roll, the transfer of Health Benefits Enrollment also applies to beneficiaries who are on the Death Roll.

(2) If OWCP is accepting the widow/widower's claim for death benefits, request that the name of the enrollee be CHANGED, and be sure the coverage level is appropriate (single rather than family). OPM's CLER system is updated regularly to ensure claimants' continued entitlement. Properly maintaining the enrollment and making the correct deductions is part of this process, and the responsibility of OWCP.

f. Consumer Price Index (CPI) Adjustments. Under 5 U.S.C. 8146a, compensation payable on account of death which occurred more than one year before March 1 of each year, shall be increased each year on that date. The amount of any increase is represented by the change in the CPI published for December of the preceding year over the price index published for December of the preceding year, adjusted to the nearest one-tenth of one percent. CPIs are discussed in more detail in FECA PM 2-0901-16.

(1) The CPI increase is applicable to death cases where the compensable disability occurred more than one year prior to the effective date, although the death may have occurred less than a year before the effective date.

(2) CPI adjustments are rounded in death cases to the nearest dollar on a monthly basis.

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Exhibit 1: Percentages of Entitlement Page 1 (Link to Image)

Exhibit 1: Percentages of Entitlement Page 2 (Link to Image)

 

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Exhibit 2: Entitlement of Multiple Payees (Link to Image)

 

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Exhibit 3: Sample Letter Suspending Benefits When Report of Dependents Is Not Received

 

Dear NAME OF BENEFICIARY:

I am writing in reference to the compensation benefits you receive from the Office of Workers' Compensation Programs (OWCP).

Section 10.126 of the OWCP's regulations states that entitlement to compensation for dependents in death claims may be suspended for failure to provide timely reports concerning their status. If the requested information is subsequently received, compensation for dependents is reinstated retroactive to the date of suspension where the evidence submitted supports the payment of compensation.

On DATE, Form (CA-12, CA-1617, ETC.) was sent to you for completion. No reply has been received, and compensation for NAME OF DEPENDENT has been suspended as of DATE. If you complete and return the enclosed copy of Form (CA-12, CA-1617, ETC.) compensation will be restored retroactive to the date it was suspended as long as the information provided shows entitlement to payment.

This is a formal decision, and your appeal rights are attached.

Sincerely,

 

NAME OF SIGNER
SENIOR CLAIMS EXAMINER

 

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Chapter 2-0800, Initial Development of Claims

Paragraph and Subject

Date

Trans. No.

Table of Contents

6/11

11-04

1. Purpose and Scope

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11-04

2. Types of Claims

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11-04

3. Forms Used for Initial Claims

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11-04

4. Responsibilities

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11-04

5. General Development

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6. No Development Necessary - Visible Injury

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7. Development of Factual Evidence

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8. Development of Medical Evidence

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9. Extended Development

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10. Obtaining Evidence from Employing Agencies

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11. Withdrawal of Claim

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12. Group Injuries

6/11

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Exhibit 1: Nature of Injury Codes

6/11

11-04

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1. Purpose and Scope. This chapter describes the fundamentals of claims development. Along with FECA PM 2-0801 through 2-0805, it covers the factors which all claims have in common. Initial acceptances are covered in FECA PM 2-0806 and formal denials are covered in FECA PM 2-1400. Additional material about death claims is covered in FECA PM 2-0700. The development of special act claims, in which entitlement is based on legislation extending FECA benefits to such groups as Peace Corps and VISTA volunteers, is described in FECA PM 2-1700.

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2. Types of Claims. When a claim is submitted, it is classified based on the type of injury and the nature of injury. See Nature of Injury codes. (Exhibit 1)

a. Traumatic Injury (TI) -- a wound or other condition of the body caused by external force, including stress or strain. The injury must be identifiable as to time and place of occurrence and member or function of the body affected. It must be caused by a specific event or incident or series of events or incidents during a single day or work shift. 20 CFR 10.5 (ee).

The following are examples of a traumatic injury: dog bite, knee strain after a trip and fall, neck strain after an auto accident, or a broken ankle after a slip on ice.

b. Occupational Disease (OD) -- a condition which is produced by continued or repeated exposure to elements of the work environment such as noxious substances or damaging noise levels over a period longer than one work day or shift. OD claims are classified as either basic or extended. 20 CFR 10.5(q).

(1) Basic OD -- Most claims for skin, orthopedic, viral, infectious, and parasitic diseases can be adjudicated with an initial request for information and perhaps a follow-up query for clarification. Some will clearly address all five basic requirements and may be adjudicated if all necessary evidence is in file. These cases are considered basic OD claims.

The following situations illustrate the kinds of cases which may be considered basic OD:

(a) A claim for poison ivy where the claimant's employment involves exposure to the plant, and the medical evidence confirms the diagnosis.

(b) A claim for a stress fracture of the foot from a letter carrier who walks a route, where the medical evidence confirms the diagnosis and relates it to extensive walking.

(c) A claim for carpal tunnel syndrome from a postal letter-sorting machine operator where medical tests establish the diagnosis.

(2) Extended OD -- Most other types of OD claims require full-scale development because the nature of exposure is in question, the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not obvious.

The following situations illustrate the kinds of cases which may be considered extended OD:

(a) Hearing loss due to continuous noise exposure.

(b) Asbestos-related illnesses.

(c) Stress-related conditions (cardiac, emotional, gastrointestinal).

(d) Other conditions, such as pulmonary conditions, gastrointestinal illnesses due to physical causes, certain types of loss of vision, dental conditions, cancers, nerve (neurological) injuries and tumors.

c. Death -- Death claims are discussed in FECA PM 2-0700.

d. Administrative Review (AR) -- an uncontroverted traumatic injury claim in which medical bills are not expected to exceed $1500 and a wage loss claim has not been filed. These cases are automatically closed upon case creation, without Claims Examiner (CE) review.

AR cases can be reopened automatically or manually. Such reopened cases will usually contain some medical evidence and may be adjudicated immediately. Extent and duration of injury-related disability do not have to be fully developed before adjudication. However, if one or more of the five basic requirements (timeliness, civil employee, fact of injury, performance of duty, causal relationship) is not met, the CE will proceed with development as with any other TI case. See 2-0800-4.

(1) Automatic Reopening. AR cases will be automatically reopened if the medical bills exceed $1500, a wage loss or recurrence claim is received, the "controverted indicator" in the case record is changed to "Y" due to receipt of a late agency controversion, or the COP nurse has closed the case without a return to full time employment by the claimant.

(2) Manual Reopening. AR cases may also be reopened manually. The case should be reopened when, for example, a request for surgery is received.

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3. Forms Used for Initial Claims.

a. In injury cases, the appropriate forms are:

(1) Form CA-1, Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation.

(2) Form CA-2, Notice of Occupational Disease and Claim for Compensation.

(3) Form CA-7, Claim for Compensation on Account of Traumatic Injury or Occupational Disease, may be submitted in conjunction with the CA-1 or CA-2.

b. In death cases, the appropriate forms are:

(1) Form CA-5, Claim for Compensation by Widow, Widower, and/or Children.

(2) Form CA-5b, Claim for Compensation by Parents, Brothers, Sisters, Grandparents, or Grandchildren.

(3) Form CA-6, Official Superior's Report of Employee's Death.

Death claims are discussed in FECA PM 2-0700.

c. Completion of Forms. It is essential that Form CA-1 or CA-2 be completed by both the claimant and the employing agency.

(1) Incomplete form. If enough information is provided on the CA-1 or CA-2 to permit creation of the case, OWCP should do so and obtain the missing information from the appropriate party.

However, if not enough information is provided on the CA-1 or CA-2 to allow creation of the claim (see FECA PM 1-0400), OWCP should return the form for completion.

(a) Employing Agency Known. When a CA-1 or CA-2 is received directly from the claimant, OWCP should send a copy to the employing agency with a request for completion of the reverse side of the form.

(b) Employing Agency Unknown. When a CA-1 or CA-2 is received directly from the claimant and the employing agency is not known or it cannot be determined from the information provided, OWCP should return the form to the claimant with instructions to forward the form to the employing agency for completion.

(2) Incorrect form. While submission of an incorrect form is a technical error, it is improper to deny a case on the basis that the claimant failed to submit the correct form. In some cases, the claimant may have been provided that form by the employing agency. Proper handling of the incorrect form depends on whether OWCP can determine the actual benefits claimed.

(a) If, upon review of the incorrect form, the actual benefits claimed by the claimant can be determined, OWCP should convert the claim to the correct type and notify the claimant and employing agency (and any representative, if applicable) via letter that the claim has been converted to a different type of injury than what was originally claimed and explain the reasons for the conversion.

Example: The claimant files Form CA-2, Notice of Occupational Disease and Claim for Compensation, and OWCP creates an occupational disease claim. However, based upon the statements contained on the Notice of Occupational Disease as well as the medical evidence submitted, the claimant is describing a traumatic injury rather than an occupational disease claim. In such an instance, the Office can convert the claim from an occupational disease claim to a traumatic injury claim. The claimant and employing agency (and any representative, if applicable) should be notified via letter that the claim is now a traumatic injury, and the reasons for the conversion should be explained. If the claim was filed within 30 days of the injury date, the claimant should also be notified of the entitlement to Continuation of Pay (COP).

(b) If the actual benefits claimed by the claimant cannot be determined from review of the form, OWCP should develop the claim based upon the claim form filed and direct questions to the claimant to determine the type of benefits claimed. Based upon the response to the development letter, OWCP should make a determination as to whether the correct claim was established and, if not, OWCP should convert the claim to the proper type of claim and notify the claimant and employing agency (and any representative, if applicable) of the conversion.

Example: The claimant files a CA-1, Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, and OWCP creates a traumatic injury claim. However, upon review of the CA-1, the CE determines that the statements made on the claim form are so vague that it cannot be determined whether the claim is for a traumatic injury claim or occupational disease claim. The CE issues a development letter to the claimant requesting a statement on the nature of the injury. Based upon the response to the development letter, the CE determines that the claimant is not describing a traumatic injury but an occupational disease claim. OWCP will convert the claim to an occupational disease claim and notify the claimant and employing agency (and any representative, if applicable). In this particular circumstance, it is important that the CE also address the claimant's entitlement to COP.

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4. Responsibilities.

a. Claimant. A person claiming compensation must submit sufficient evidence and demonstrate cause for OWCP to proceed with processing and adjudicating a claim. It is the claimant's responsibility to establish the five basic requirements of a claim, which is known as the "burden of proof." OWCP has the obligation to aid in this process by giving detailed instructions for developing the required evidence. The claimant must submit the essential evidence that demonstrates entitlement to compensation. The five basic requirements of a claim, which must be considered in the order given, are as follows:

(1) Statutory Time Requirements Have Been Satisfied. Compliance with this requirement is demonstrated when the notice of injury, disease, or death shows that prompt notice and claim were given and filed. The claimant has no particular responsibility unless the claim is not filed within three years after the injury. See FECA PM 2-0801.

(2) The Injured or Deceased Individual Was a Federal Civilian Employee or considered an employee for purposes of FECA. Compliance with this requirement is usually a routine matter which is demonstrated by inspection of the notice or claim. The claimant has the burden, however, when the employer is not an agency of the United States or the Federal agency denies the employment status of the injured or deceased. See FECA PM 2-0802.

(3) The Occurrence, or "Fact" of Injury (FOI). Once the first two elements are established, it must be determined whether an injury occurred. See FECA PM 2-0803. This element of the claim consists of two components, which must be considered together:

(a) Whether the claimant actually experienced the accident, untoward event, or employment factors alleged to have occurred. This is a factual determination. The claimant must show that the accident or work exposure that is claimed did in fact occur at the time and place and in the manner alleged.

In occupational disease cases in which the claim is not based upon a specific incident, the claimant must submit sufficient evidence to identify fully the particular work conditions alleged to have caused the disease and substantiate exposure to the conditions claimed.

(b) Whether a medical condition has been diagnosed in connection with this event or employment factor. To make this determination, medical evidence is required. However, there are a few instances when a claim may be accepted without a medical report. See paragraph 6 in this chapter.

(4) The Injury Occurred in the Performance of Duty (POD). The claimant must show not only that an injury occurred but that he or she was performing official duties (or an activity incidental to employment) at the time of injury. The injury must arise out of and in the course of employment. See 5 U.S.C. 8102; FECA PM 2-0804.

(5) The Disability (or Death) Was Caused by the Injury Claimed (CR). The claimant must show that the injury was causally related to the event or employment factors. This requirement is satisfied on the basis of medical evidence, which is usually supplied by the attending physician. See FECA PM 2-0805.

b. Employing Agency. Although the employing agency is not formally a party to the claim, the agency bears a responsibility to assist in developing the claim. The FECA requires the employing agency to report to OWCP any injury resulting in death or probable work-related disability and to submit any further information requested by OWCP. 20 CFR 10.118. As evidence appearing in the employer's files is not generally available to claimants, the employing agency must assemble and submit such evidence.

(1) In addition to supplying evidence on its own behalf, the agency is expected, wherever possible, to aid the claimant in assembling and submitting evidence. In cases in which OWCP receives the claim long after the employee has left the agency's employment rolls, a claimant may need to assist OWCP in identifying any potential sources of evidence.

(2) Additional evidence from other sources may be needed where the agency's confirmation of the claimant's allegations is not sufficient to establish the claim, or where the official superior or injury compensation specialist disagrees with the claimant's allegations, has no knowledge of the facts concerning the allegations, or is unable to furnish sufficient details.

(3) Since OD claims generally require more detailed evidence, a supervisor or injury compensation specialist can, when issuing Form CA-2 to the claimant, also provide the claimant with a checklist showing the type of evidence which should be submitted. The checklists can be found in the CA-810 publication, Injury Compensation for Federal Employees, which is available on the Department of Labor's website. Conditions covered include: hearing loss, asbestos-related illness, coronary/vascular disease, skin diseases, pulmonary conditions (other than asbestos), psychiatric conditions, and carpal tunnel syndrome.

c. OWCP. In administering the FECA, OWCP must attempt to obtain any evidence which is necessary for the adjudication of the case which is not received when the notice or claim is submitted. To adjudicate claims promptly and manage them effectively, the CE should choose the most efficient, direct, and proactive approach, given the individual circumstances of a claim and the nature of injury.

OWCP is responsible for the following:

(1) Providing Information. The CE must provide information about the procedures involved in establishing a claim, including instructions for developing the required evidence, to the claimant, the employing agency, and the representative, if any.

(2) Requesting Evidence. Upon initial examination of the case, if it is determined that the evidence is not sufficient to establish the essential elements of the claim (timeliness, civil employee, fact of injury, performance of duty, causal relationship), the CE should inform the claimant of the additional evidence needed. The CE should attempt to clarify any discrepancies which exist based on information already in the file at the time of development. The claimant will be allowed at least 30 days to submit the evidence required. OWCP is not required to notify the claimant a second time if the evidence submitted in response to its first request is not sufficient to meet the burden of proof. 20 CFR 10.121.

(3) Identifying Potential Third Party Cases. The CE should be alert for situations where a party other than another Federal employee or agency may be responsible for the injury (see FECA PM 2-1100). The claimant should be notified promptly of his or her obligation to pursue the responsible third party and to refund the government under 5 U.S.C. 8131 and 8132 so that attempts at recovery may begin before the applicable state statute of limitations expires.

(4) Making Prompt Decisions. It is OWCP's obligation to render a decision on each case as promptly as possible. Prompt action is particularly important in those disability cases where the injured employee is losing pay. The Office must notify both the claimant and the employing agency (and any representative, if applicable) of its decision in all cases, other than those that were administratively reviewed and have not reopened. If the case is accepted, OWCP should also respond to any agency challenges or controversions to COP.

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5. General Development. This section provides general information for developing claims. The following sections will address the initial development of a claim for factual evidence and medical evidence. Claims that require extended development are discussed in paragraph 9 of this chapter.

a. Evidence. Decisions on claims are based on the written record, which may include forms, reports, letters, and other evidence of various types such as photographs, videotapes or drawings.

Evidence may not be incorporated by reference, nor may evidence from another claimant's case file be used. Evidence contained in another of the claimant's case files may be used, but a copy of that evidence should be placed into the case file being adjudicated. All evidence that forms the basis of a decision must be in that claimant's case record.

b. Developing the Case. Development is usually undertaken in writing. Communication by fax may be used when an expeditious reply is required. A phone call can be made where the request involves answers to specific and simple questions, such as verifying that an inoculation resulting in an adverse reaction was performed by the employer. Evidence obtained by telephone must be carefully documented in writing (on Form CA-110) and depending on the complexity of the information obtained, written confirmation should be requested from the source. In developing a case, the CE should:

(1) Identify and request all information that will be required to adjudicate the claim for all conditions claimed.

(2) Acknowledge receipt of any Form CA-7 which has been submitted and indicate that the CA-7 will be reviewed when the case is adjudicated. This can be done in the development letter.

(3) Attempt to secure evidence in the custody of a Federal agency, as it is more readily available to OWCP than to the claimant. An example of this is exposure data of a historical nature such as in an asbestos case.

(4) Avoid requesting evidence which is already contained in the file or for which no need is anticipated. Such requests place an unwarranted burden on the individual or entity asked to submit the information and result in a duplication of documents in the case file.

(5) To the extent possible, the same CE should handle all claims involving the same part of the body for a given claimant. If another claim already exists for an injury to the same body part, the CE should generally double the case files. See FECA PM 2-0400.

c. Requesting Information. The CE should contact the claimant in writing to obtain information or clarification wherever possible. At times the CE may contact the claimant via telephone if only basic information is needed. This is discussed further in paragraph 7 of this chapter.

Correspondence Library has development letters which may be used when making initial requests for information from the claimant and the agency. When composing the letter, the CE should state what evidence is already in the case record and why it is not sufficient to make a decision. The CE should specifically request only the information necessary to adjudicate the case at hand. Any letter used should be tailored to the specifics of the individual case.

Where the claimant's statement is essential to understanding the basis of the claim (e.g., in emotional stress cases), the CE should wait until the claimant's statement has been received before sending the letter to the agency.

d. Lack of Response. The CE must allow at least 30 days for a response to all initial development letters prior to denying a claim. 20 CFR 10.121. If information is requested of the employing agency, a reasonable period of time should be allowed for the agency's response.

(1) If an employing agency fails to respond to a request for comments on the claimant's allegations, the CE may usually accept the claimant's statements as factual. However, acceptance of the claimant's statements as factual is not automatic in the absence of a reply from the agency, especially in instances where performance of duty is questionable. The Employees' Compensation Appeals Board has consistently held that allegations unsupported by probative evidence are not established. James E. Norris, 52 ECAB 93 (1999), Michael Ewanichak, 48 ECAB 354 (1997). The CE should consider the totality of the evidence and evaluate any inconsistencies prior to making a determination.

(2) If the claimant fails to respond, the CE will need to decide whether to adjudicate the claim without the requested information. Often the CE can continue to develop a claim and reach conclusions on the five basic requirements even when some evidence is lacking.

For example, if the CE asks the claimant to submit medical records for a prior hospitalization or operation, but the claimant does not do so, the CE may still be able to adjudicate the case without them. While records of past medical treatment are helpful, their absence may not necessarily prohibit further development of the claim or a decision on causal relationship. If the missing records are essential, the claim may be denied and the decision should explain why causal relationship cannot be accepted without the missing medical records.

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6. No Development Necessary - Visible Injury. When the following criteria are satisfied, a case may be accepted without a medical report and no development of the case need be undertaken:

a. The condition reported is a minor one which can be identified on visual inspection by a lay person (e.g., burn, laceration, insect sting or animal bite);

b. The injury was witnessed or reported promptly, and no dispute exists as to the occurrence of an injury; and

c. No time was lost from work due to disability.

In cases where there is a serious injury (motor vehicle accidents, stabbings, shootings, etc.), the agency does not dispute the facts of the case, and there are no questionable circumstances, the case may be accepted for a minor condition (such as a laceration in a stabbing case) without a medical report, while simultaneously developing the case for other more serious conditions. This is true even if there is lost time due to such a serious injury. In these cases, once a Field Nurse is assigned (see FECA PM 2-0811), he or she can assist with obtaining the necessary evidence. Sound judgment should be employed in these serious cases to provide appropriate and immediate medical care for the injured worker since expeditious treatment for these injuries is critical.

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7. Development of Factual Evidence. The purpose of this paragraph is to identify the kinds of factual evidence needed in traumatic injury and occupational illness cases, and how to obtain this evidence. Before making any inquiries, the CE should carefully review all material in the case record, both to identify evidence needed for adjudication and to avoid requesting evidence already provided or not needed.

a. Sources of Factual Evidence. The type of evidence necessary to adjudicate a claim will determine how the CE obtains the evidence and from whom he or she will request information.

(1) Claimant. In disability cases, the claimant is the injured employee, while in death cases the claimant is the dependent seeking benefits. Whenever there is a factual discrepancy in a case, the claimant should be contacted to clarify the facts of the case. Depending on the facts of the case, it may be necessary to forward the claimant's statement to the employing agency for comment.

(2) Employing Agency. The employing agency is required to complete the reports and statements needed and then submit the evidence to the OWCP. In several types of claims (e.g. stress claims, claims with POD issues such as premises, temporary duty travel, or recreational injuries), a statement from the employing agency is imperative to properly develop and adjudicate the claim.

(3) Witnesses. Statements from witnesses are not required to adjudicate a claim; a claim may be approved in the absence of witness statements. They are very useful, however, when the employing agency is unable to confirm or refute the claimant's allegations. Such statements may be obtained by the claimant or the employing agency.

(4) Other Sources. In most cases, the required evidence will be available from one of the sources noted above. In certain cases, however, the CE will need to request evidence from other sources. This will vary by case and circumstance.

b. Factual Discrepancies.

(1) Nature of Claim. If doubt exists, the claimant should be asked to clarify what condition is being claimed, or whether the claimed condition is due to an occupational disease, a traumatic injury, or a recurrence. Any discrepancies found must be clarified by obtaining the necessary factual evidence before the claim can be properly adjudicated.

(2) Description of Job Duties. This will almost always be required to adjudicate an occupational disease claim, and occasionally will be required for a traumatic injury, especially if it is not clear what the claimant's occupation entails.

(a) The employing agency should be asked to provide a position description, including physical requirements, and clarification of job duties.

(b) The claimant should usually be asked to describe the physical and environmental requirements of the job, and the supervisor or injury compensation specialist should review that statement and provide comments if there is any disagreement.

(c) Where the position description accurately describes the factors claimed as the basis of a medical condition in a claim for occupational disease, it is not always necessary to request a detailed statement from the claimant describing these factors. For example: where aggravation of degenerative disc disease due to repeated heavy lifting is claimed, and the position description states that frequent lifting over 50 pounds is required, it can be accepted that the claimant often lifted heavy objects. If an employee claims a reaction to breathing paint fumes, and the position description states that he or she works with paint in poorly ventilated areas, this can usually be accepted as factual.

(3) Employment History. This information is primarily required for occupational disease claims. The employing agency is often the best source for a chronological history of employment because of the recordkeeping involved in a personnel office. The claimant should also be asked to submit this information, especially for jobs held prior to employment with the employment agency.

(4) Exposure to and Identification of Substances. The employing agency is usually the best source for this data. However, if the agent to which the claimant was exposed was clearly encountered in the work place, it is preferable but not always necessary to identify the specific agent. For example, if the case involves a respiratory condition clearly related to exposure to fumes at work, or dermatitis from contact with a cleaning solvent used at work, the agent need not necessarily be specified.

(5) Content of Substances. If the employing agency is unable to identify the contents of the substance, the manufacturer will likely be the best source for obtaining that information. If such exposure is claimed, the CE should consider whether potential third-party liability exists. If so, the case must be processed according to FECA PM 2-1100.

(6) Personal History. The claimant is the best source for information concerning off-the-job exposure to potentially injurious conditions or substances. However, medical reports containing history elicited by physicians who have examined the claimant sometimes include useful factual information. For example, personal or family history may appear in a claim for a psychiatric or heart condition. The CE should ask the claimant to verify any facts obtained from a medical report.

(7) Various Performance of Duty (POD) Scenarios. In traumatic injury claims, a variety of POD issues may present themselves. These include injuries sustained off premises; injuries sustained while the employee is on TDY status; recreational injuries; and injuries sustained in parking lots/garages. In these instances, the CE should obtain a statement directly from the claimant identifying the circumstances surrounding the injury. The CE should also obtain a statement from the employing agency concerning whether the injury was sustained in the performance of duty. See PM 2-0804 for a complete discussion of POD.

(8) Affirmative Defense. The FECA states than an injury caused by the claimant's intoxication, willful misconduct, or intent to injure self or another is not compensable. These factors are described and their development discussed in FECA PM 2-0804, Performance of Duty. The claimant enjoys an affirmative defense against any finding that one of these factors applies to a claim, and OWCP must overcome such a defense. These factors must be considered and developed prior to the initial adjudication of the claim, since an affirmative defense cannot be raised for the first time on appeal. Adverse decisions of this type should be made at an adjudicative level above that of the CE. See FECA PM 2-0804.

c. Obtaining Information by Telephone. Use of the telephone is encouraged to obtain information when appropriate. If the claimant has difficulty with written communication, the CE should contact the claimant by telephone. In other instances, especially if the CE lacks just one or two pieces of information to take an action, it may be expedient to contact the claimant by phone and document the case file. The CE should complete a comprehensive and informative Form CA-110 for the case record as soon as possible.

However, where there are disputes in the factual evidence, the case should be considered for conferencing.

d. Conferencing. The CE may use conferencing as a method to obtain necessary data or to clarify significant disputes or discrepancies in the case record prior to adjudication. Procedures for conferencing are fully described in FECA PM 2-0500. The CE should consider conferencing in situations where:

(1) Conflicting evidence exists on an issue important to the adjudication of the case, and the CE has not been able to resolve the issue.

(2) The employing agency has challenged the claim on the issue of fact of injury or performance of duty.

(3) The evidence clearly shows the claimant cannot communicate effectively in writing.

(4) The agency challenges the claimant's allegations and provides conflicting factual evidence.

(5) The agency has not responded to a written request, or its response requires clarification.

e. Phrasing Questions. The way a question is asked can affect the amount and quality of information which will be received. Broadly speaking, development questions can be asked in three ways:

(1) Open Questions. These are phrased so that minimal information is presented in the question and allows the respondent to provide all the specific details about the particular issue at hand.

Example 1: How were you harassed on February 3, 2011? What happened that day? Provide details including names and titles of any witnesses or participants as well as what they said and what occurred.

Example 2: You indicated that you suffered an injury at work on February 4, 2011. How did the injury occur? What type of injury did you sustain?

(2) Direct Questions. These require either yes/no answers or very short responses.

Example: You indicated on Form CA-1 that you tripped while delivering the mail, injuring your foot. What part of the foot did you injure? Describe precisely how you injured your foot - Did you twist it? Turn it? Did you get an x-ray of your foot following the injury?

(3) Leading Questions. These are phrased to suggest what the answer should be.

Example: Your supervisor indicates that you were not scheduled to work on February 7, 2011 and therefore counseling did not occur on this date. Is this correct?

Although leading questions can be helpful when trying to solicit specific factual information from the claimant or employing agency, particularly if the respondent if unwilling or unable to respond to open or direct questions, they should be used only as a last resort.

Note - Leading questions may never be used in the context of a referral to an impartial medical specialist.

(4) Combined Questions. Open questions are best used when little information about a given matter is available. The drawback to this type of question is that while a great deal of information may be received, it may not adequately address the issue if the question is not specific enough. Therefore, it is best to follow an open question with a direct question, since it requires more specificity.

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8. Development of Medical Evidence. The purpose of this paragraph is to identify the kind of medical evidence needed in traumatic injury and occupational illness cases, and how to obtain this evidence. Before making any inquiries, the CE should carefully review all material in the case record, both to identify evidence needed for adjudication and to avoid requesting evidence already provided or not needed.

a. Medical Sources. These sources include reports of physicians and hospitals providing examination or treatment to the claimant either before or after the injury. The claimant is responsible for obtaining the necessary medical evidence; however, the CE may also obtain medical evidence from a physician who examined the claimant through direct referral or authorization by OWCP (for example, a second opinion medical referral).

The CE should direct the employing agency to submit all medical documentation related to the claim which is in its possession, including documentation of any treatment the claimant received at the employing agency's medical facility or health unit.

Medical records may also be requested directly from the claimant or the attending physician. If necessary, the CE should send the claimant an authorization for release of records (Form CA-57) to sign and return. The CE may also authorize diagnostic tests for the part of the body that has been injured if he or she determines the results of such testing would be useful.

b. Initial Review and Development of Medical Evidence.

(1) Upon initial review of a new claim for injury, the CE should evaluate any medical evidence which has been received in the case record. For most conditions, the attending physician's opinion may be considered conclusive for adjudicating the claim if he or she is a specialist in the indicated field of medicine; has a complete and accurate history of the employment factors; and provides sufficiently detailed information, including the medical reasoning required to determine diagnosis and causal relationship.

There are some circumstances in which medical evidence is not required to adjudicate a claim or where a rationalized medical opinion is not required. This is addressed in FECA PM 2-0805. See also the discussion of Visible Injuries in paragraph 6 of this chapter.

(2) If after initial review, the medical evidence is not sufficient to accept the claim (or no medical evidence has been received), the CE should request the medical evidence necessary to support the claim. The request should be tailored to the specifics of the case, but should note that the medical evidence must be obtained from a physician, as defined by the FECA. The letter must also inform the claimant that he or she has 30 days to submit the requested evidence. In general, medical reports must provide a history of injury or work factors; a diagnosis; objective findings supporting the diagnosis; and a rationalized medical opinion on the issue of causal relationship.

In most cases, the CE should request that the claimant obtain the medical evidence from the physician as part of the initial development letter. If the CE writes directly to the attending physician to obtain this information, the letter should contain a clause addressed to the claimant which clearly informs him or her that although the letter is written directly to the physician, it is still the claimant's responsibility to ensure that the requested information is provided within the time allotted.

(3) Following the issuance of the initial development letter, the CE should review any new medical evidence submitted. If no medical evidence has been submitted or the medical documentation does not contain prima facie medical evidence (see paragraph below), the claim may be adjudicated based on the evidence of record without further development. The CE should ensure that all medical evidence in the case record is considered at the time of adjudication and that the claimant has been provided at least 30 days to submit the medical evidence requested.

For OWCP to undertake additional medical development, the claimant must establish a prima facie case by submitting medical evidence from a physician which, at the least, states a diagnosis and clearly supports causal relationship. However, in some cases, the medical opinion need not be fully rationalized in order for the CE to undertake further development. For example, the attending physician may provide a diagnosis and an opinion which is not well-reasoned but nonetheless supports causal relationship. In such cases, further clarification is needed to establish the case, and the medical development should be undertaken by the CE.

c. Request for Additional Medical Evidence. If further development of the medical evidence is required, the CE must undertake such development prior to rendering a decision. Further medical opinion may be requested from attending physicians, second opinion specialists, and referee specialists. The roles of these physicians and the weighing of medical evidence are addressed in FECA PM 2-0810.

(1) Requests to the Attending Physician. Unless the medical history of the case demonstrates that an inquiry to the attending physician will not be productive, it is usually proper to write to the attending physician at least once to obtain the missing information before arranging a second opinion referral. The attending physician should be given the opportunity to bill OWCP for a comprehensive report.

The CE should send the claimant a copy of this and all other letters to the attending physician and advise the claimant that even though OWCP is attempting to obtain the evidence needed to adjudicate the claim, it remains the claimant's responsibility to ensure that the required evidence is submitted.

When sending the letter to the Attending Physician, the CE must be sure to:

(a) Provide a factual background and pose specific questions;

(b) Advise the physician that OWCP will pay for a comprehensive report;

(c) Notify the claimant that the requested medical opinion is necessary to further develop the claim; and

(d) Advise the claimant that he or she is responsible for ensuring that the physician submits the report within the time allotted.

(2) If the CE determines that questioning the attending physician further would not be productive, a referral to a second opinion specialist may be warranted. If there is a conflict in the medical evidence between the attending physician and the second opinion specialist and the evidence is of equal but opposing value, a referral to a referee physician may be needed. The procedures for referring cases to second opinion and referee specialists are addressed in FECA PM 3-0400.

(3) Statement of Accepted Facts (SOAF). A SOAF is often necessary when requesting such medical evidence from the attending physician and required when referring the claimant to a second opinion or referee in this circumstance. Refer to FECA PM 2-0809 for instructions on preparation of a SOAF.

(4) Questions to Physicians. Questions to a physician should address all unresolved medical issues. The CE should not request medical evidence from the physician which he or she has provided already. When preparing questions for a physician, the CE should:

(a) Include questions about the history of injury, diagnosis, examination or diagnostic findings, causal relationship (with medical reasoning), and nature and extent of injury-related disability for regular and light duty.

With respect to the issue of causal relationship, it may be useful to provide the physician with OWCP's definitions of direct causation, aggravation, etc. See FECA PM 2-0805.

(b) Clarify a potential aggravation. If there is a question of whether the diagnosis was a pre-existing condition which was aggravated by the work injury/factors, the CE should ask the physician to clarify this.

Example: "You have opined that the claimant's right knee arthritis is related to the duties of handling luggage as a baggage screener over the last two years. Please clarify whether the right knee arthritis was directly caused by the work factors identified or if this diagnosis was a pre-existing condition which was aggravated by the work factors claimed."

The physician should also be asked to clarify whether an aggravation of a pre-existing condition is permanent or temporary, and if only temporary, when the condition is expected to return to baseline (pre-injury) status.

With respect to injury-related disability, the CE should be particularly careful to clarify its extent and duration in cases involving aggravation of an underlying condition.

(5) Phrasing Questions. The way a question is asked can affect the amount and quality of information which will be received. Questions can be asked in three ways: Open Questions, Direct Questions and Leading Questions. These types of questions are defined in paragraph 7(e) above and examples of each follow.

(a) Open Question Examples: What is the history of injury as provided by the claimant? What is the diagnosis? What are the objective exam findings/diagnostic findings? Please provide a well-explained opinion on whether the condition was caused or aggravated by the work injury on 04/10/2010.

(b) Direct Question Example: You have opined that the claimant's pre-existing right knee arthritis was aggravated by the work injury on 04/20/2010. Please explain whether this is a permanent aggravation or a temporary aggravation. If temporary, when did the aggravation cease, or when do you expect the aggravation to resolve?

(c) Leading Question Example: Given that the claimant has only been on the job carrying mail for three days, isn't it more likely that his condition of plantar fibrosis is the result of non-work related factors?

Note - The CE should avoid leading questions when requesting evidence from a physician, especially if the question is phrased in such a way as to elicit a response which would invalidate the claim, and leading questions may never be used in the context of a referral to an impartial medical specialist. Stanislaw M. Lech, 35 ECAB 857 (1984) (ECAB found "Give date when aggravated disability ceased" to be leading).

(d) Combined Questions Example: You have indicated that the claimant tripped over a log and has "abnormal findings about the right ankle." What is the diagnosis? What are the "abnormal" exam findings/diagnostic findings? Was the diagnosed condition caused by the trip and fall? Please provide medical reasoning in support of your opinion.

d. Lack of Response. When a CE requests an opinion from the attending physician but receives no reply within a specified period of time, the claim may be adjudicated based on the evidence on file without further development if the CE has:

(1) Provided a factual background and posed specific questions to the attending physician;

(2) Advised the physician that OWCP will pay for a comprehensive report;

(3) Notified the claimant that the requested medical opinion is necessary to further develop the claim; and

(4) Advised the claimant that he or she is responsible for ensuring that the physician submits the report within the time allotted.

e. Medical inquires by telephone. The telephone may be used to schedule examinations, request reports, and address other administrative matters. However, long-standing ECAB precedent provides that oral statements of doctors to OWCP personnel do not constitute competent medical evidence (see John M. Fuller, 9 ECAB 320).

In addition, OWCP examiners may not communicate orally with a referee medical specialist with regard to the examination details or information contained within the report. Such communication must be made in writing. See FECA PM 3-0500. OWCP may communicate with a referee specialist's office for administrative matters such as scheduling an examination or requesting a report.

As with any other telephone call requiring documentation, OWCP personnel should complete a comprehensive and informative Form CA-110 for the case record.

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9. Extended Development. Some initial claims require full-scale medical development because the nature of exposure is in question, the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not obvious.

a. Requirements for development and documentation of certain types of conditions.

(1) Hearing loss and asbestosis claims. OWCP should refer the claimant for examination by a qualified specialist if the report submitted by the claimant does not meet all of OWCP's requirements for adjudication (see FECA PM 3-0600).

(2) Cardiac and psychiatric conditions. If the medical evidence submitted by the claimant clearly addresses the necessary requirements and the physician is of the appropriate specialty, the CE should prepare a memo to file stating where in the medical reports of record the questions have been answered. After completing the memo, the CE may adjudicate the claim.

If the report submitted by the claimant does not meet all of OWCP's requirements for adjudication but establishes a prima facie case, the CE should prepare a detailed SOAF and questions for the physician. The CE then can write directly to the attending physician (if of the appropriate specialty) as outlined in paragraph 8(c) of this chapter or refer the claimant for examination by a qualified specialist.

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10. Obtaining Evidence from Employing Agencies. OWCP will attempt to obtain evidence in possession of another Federal agency. Following is a description of the procedures which should be used with respect to requests for information from employing agencies.

a. Factual Evidence. If the agency has factual evidence which is necessary to make a decision in the claim, the CE should make a written request with a copy to the claimant, indicating a time period within which the agency should reply. The agency should be advised that if it fails to provide the requested information, a decision will be made on the basis of available evidence and that the claimant's statements, if sufficiently clear and detailed, may be accepted on matters of which the claimant is knowledgeable.

b. Medical Evidence. If it appears that the agency has medical records in its possession pertaining to the injury or to any relevant pre-existing condition, the CE should ask the agency to submit copies of such records if they are not sent with the original submission.

c. Transferred Employees. When a Federal employee transfers from one agency to another, the employee's Official Personnel Folder (OPF) and Employee Medical Folder (EMF) should be sent to the new agency. If the OWCP requires information from the OPF or EMF after the employee has transferred from the agency where the injury occurred, the original employing agency may be unable to supply it. The CE should request the information from the current employing agency.

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11. Withdrawal of Claim. A claimant or survivor may submit a written request to withdraw his or her claim prior to the adjudication of the claim. This includes claims for traumatic injury, occupational disease, and survivor benefits. It also applies to administrative review cases that have not been formally adjudicated. Although a claimant or survivor may withdraw a claim, the notice of injury itself cannot be withdrawn. [See FECA Regulations, 20 C.F.R. 10.100(b)(3), 10.101(a), and 10.105(a)].

a. Upon receipt of a written request from the claimant or survivor, the CE must take the following actions:

(1) In any compensation case where a written notice of intent to withdraw a claim is received from the claimant or survivor prior to the adjudication of the claim, the CE must advise the claimant or survivor in writing that the claim is now considered withdrawn.

(2) The case file will then be coded as withdrawn and the imaged copy retained by the Office. The CE should code the claim as follows:

Adjudication Status: SU
Case Status: CL

(3) No ICD-9 code can (or should) be entered.

(4) In traumatic injury cases, determine if COP was paid. Any COP that was paid will be charged to either sick or annual leave or become an overpayment with the employing agency.

b. Employing agencies are not permitted to compel any employee or survivor to withdraw a claim. Upon notification of a credible allegation that the employing agency improperly compelled the claimant or survivor to withdraw a claim, the District Director or other designated individual, should immediately contact the employing agency by telephone or written correspondence to discuss the matter and to prevent any future occurrences. The telephone conversation must be documented on Form CA-110 and the form imaged in the case record.

c. A claim may be reinstated if there is evidence that a claimant or survivor may have been compelled by the employing agency to withdraw his or her claim. If the claim is reinstated, the claimant or survivor should be notified in writing that the claim is now considered reinstated.

d. If a request is received to reopen a withdrawn claim, a new case number should be assigned. The CE should use the information from the previously withdrawn claim to develop any issues (e.g., performance of duty) in the new case.

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12. Group Injuries. When possible, where two or more employees are injured in the same incident, such as an explosion or auto accident, or by the same substance, such as contaminated drinking water, the entire group of cases should be adjudicated by the same CE in order to ensure uniformity of action.

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Exhibit 1: Nature of Injury Codes

 

(T)

Traumatic Injuries

 

TA

Amputation

TB

Back strain

TC

Contusion; bruise; abrasion

TD

Dislocation

TE

Exposure (including frostbite, heat stroke/exhaustion)

TF

Fracture

TG

Effects of Electrical Current

TH

Hernia (inguinal)

TJ

Crush injury

TK

Concussion

TL

Laceration; cut

TN

Superficial Wounds

TO

Pain, Swelling, Redness, Stiffness (not in joint)

TP

Puncture (not insect bite)

TS

Strain (not back)

TT

Tooth injury

TU

Burn, scald, sunburn

TV

Foreign body in eye

TY

Insect bite

TI

Traumatic skin diseases/conditions, including dermatitis

TR

Traumatic respiratory disease

TQ

Traumatic food poisoning

TW

Traumatic tuberculosis

TX

Traumatic virological/infective/parasitic diseases

TY

Insect Bite

TZ

Pain, Swelling, Redness, Stiffness (in joint)

T1

Traumatic cerebral vascular condition; stroke

T2

Traumatic hearing loss

T3

Traumatic heart condition

T4

Traumatic mental disorder; stress; nervous condition

T5

Headaches

T6

Death sudden/Violent

T7

General Symptoms

T8

Traumatic injury - unclass. (except disease, illness)

 

(G)

Gastrointestinal

 

GD

Diarrhea

GH

Hiatal, umbilical or ventral hernia

GO

Hernia, Other

GP

Abdominal Pain

GU

Ulcer

G9

Gastrointestinal, not otherwise classified

TQ

Gastrointestinal Conditions

 

(S)

Skin Disease or Condition

 

SB

Biological (including poison ivy, poison oak)

SC

Chemical

SL

Skin lesion (including blister, bunion, callus and corn)

S9

Dermatitis, not otherwise classified

 

(M)

Musculoskeletal and Connective Tissue

 

MA

Arthritis

MB

Back or neck strain, sprain

MC

Carpal Tunnel Syndrome

MD

Degenerative Disc Disease; spondylosis; spondylitis

MI

Inflammatory Disease (including bursitis, tendinitis)

MK

Chondromalacia

MP

Pain/Swelling/Stiffness/Redness (in Joint)

MS

Pain/Swelling/Stiffness/Redness (not in Joint)

M9

Musculoskeletal condition, not otherwise classified

 

(R)

Respiratory Disease

 

RA

Asbestosis

RB

Bronchitis, asthma

RC

Asthma

RE

Emphysema

RP

Pneumoconiosis (Black Lung)

RR

Reaction to smoke, fumes, chemicals

RS

Silicosis

R9

Respiratory disease, not otherwise classified

TR

Respiratory Conditons

 

(V)

Virological, Infective and Parasitic Diseases

 

VA

Acquired Immune Deficiency Syndrome (AIDS) and HIV

VB

Brucellosis

VC

Valley Fever (Coccidioidomycosis)

VD

Anthrax

VF

Rabies

VH

Hepatitis

VL

Lyme Disease

VM

Malaria

VP

Parasitic Diseases

VR

Rocky Mountain Spotted Fever

VS

Staphylococcus

VT

Tuberculosis

V9

Virological/Infective/Parasitic, not otherwise classified

 

(C)

Cardiovascular/Circulatory

 

CA

Angina

CB

Blood Disorder

CH

Hypertension

CM

Myocardial Infarction (Heart Attack)

CP

Phlebitis; varicose veins

CS

Stroke; cerebral vascular condition

C9

Cardiovascular/circulatory, not otherwise classified

 

(O)

Occupational disease, non-complex

 

OF

Food poisoning

OG

Tooth and gum-related problems

OL

Inguinal Hernia

OP

Pregnancy (Peace Corps only)

 

(D)

Other Disability, Occupational

 

DA

Headaches

DB

Seizures/Convulsions

DC

Coma

DF

General Symptoms: Syncope, Dizziness, Vertigo, Fatigue

DH

Hearing loss

DI

Vision/sight loss

DM

Mental disorder; emotional condition; nervous condition

DN

Nerve injury, incl. paralysis, after exposure to toxins

DR

Radiation

DT

Tumors and other cancer-related conditions

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Chapter 2-0801, Time

Paragraph and Subject

Date

Trans. No.

Table of Contents

 

 

1. Purpose and Scope

03/93

93-18

2. "Time" is the First Requirement Considered

03/93

93-18

3. Statutory Filing Requirements

03/93

93-18

4. Determining Date Claim is Filed

03/93

93-18

5. Traumatic Injury Claims

03/93

93-18

6. Occupational Disease and Latent Injury Claims

03/93

93-18

7. Death Claims

03/93

93-18

8. Special Circumstances

03/93

93-18

9. Further Development

03/93

93-18

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1. Purpose and Scope. This subchapter presents policies and procedures for determining if a report of injury or claim for benefits under the Federal Employees' Compensation Act (FECA) is timely filed under the provisions of the Act. (Consult the FECA PM Index under "Time" for reference to Program Memorandums on several complex time issues.)

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2. "Time" is the First Requirement Considered. All cases must first satisfy the statutory time requirements of the FECA. The Claims Examiner (CE) must therefore determine whether timely notice of injury and claim for compensation have been given and filed in all primary cases. To determine whether there has been compliance with the time requirements in any case, it must be decided what requirements govern that case.

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3. Statutory Filing Requirements. This paragraph discusses the provisions of the FECA which apply to timeliness of filing. The date of injury governs which time limitation provisions apply in a case. The date of injury is the date that a traumatic injury occurs, the date of death, or the date of last injurious exposure in the case of occupational disease.

a. Injuries and Deaths on or After September 7, 1974.

(1) Written notice of injury or death must be filed within 30 days after the occurrence of the injury or death, under 5 U.S.C. 8119.

The Office of Workers' Compensation Programs (OWCP) should accept as a notice of injury or death any written document received by the employing agency or by the OWCP which is signed by the claimant or someone acting on the claimant's behalf and which contains the name of the employee, the date and location of the injury or death, and the cause and nature of the injury, or the employment factors believed to be the cause.

(2) An original claim for compensation for disability or death must be filed within three years after the occurrence of the injury or death under 5 U.S.C. 8122. If claim is not filed within three years, compensation may still be allowed if:

(a) Written notice of injury or death was given within 30 days as specified in 5 U.S.C. 8119; or

(b) The immediate superior had actual knowledge (including verbal notification) of the injury or death within 30 days after occurrence. The knowledge or notification must be such as to put the immediate superior reasonably on notice of an on-the-job injury or death.

(3) Knowledge by the immediate superior, another official at the employing agency, or any agency physician or dispensary that an employee has sustained an injury, alleges that an injury has been sustained, or alleges that some factor of the employment has resulted in a physical condition constitutes actual knowledge. Such knowledge does not have to be firsthand or acquired as an eyewitness to the accident.

(a) For confirmation in doubtful cases a statement should be requested from the person named as having actual knowledge, showing what specific knowledge the person has of the injury or disease, how and from whom this knowledge was acquired, and when it was acquired. Where treatment was received from the physician or dispensary of the employing agency, a copy of the medical record should be requested.

(b) Such knowledge or notification must be such as to put the employing agency reasonably on notice of an on-the-job injury or death. It is not sufficient that the immediate superior, official or dispensary worker at the agency was aware that the employee complained of back pain, suffered a myocardial infarction, etc. To constitute actual knowledge, it must be found that the immediate superior, other official, or dispensary worker was aware that the employee related the back pain, MI, etc. to an injury sustained while in the performance of duty or to some factor of the employment.

(c) If an agency, in connection with a recognized environmental hazard, has an employee testing program and a test shows the employee to have positive findings this should be accepted as constituting actual knowledge. For example, an agency where employees may be exposed to hazardous noise levels may give annual hearing tests for exposed employees. A hearing loss identified on such a test would constitute actual knowledge on the part of the agency of a possible work injury.

(4) OWCP may excuse the failure to comply with the three-year time requirement under 5 U.S.C. 8122 on the ground that notice of injury or death could not be given because of exceptional circumstances. One "exceptional circumstance" recognized is a case of a claimant who could not file a claim because that person was a prisoner of war during the entire three-year period.

b. Injuries and Deaths Occurring Between December 7, 1940 and September 6, 1974.

(1) Written notice of injury should be given within 48 hours under 5 U.S.C. 8119. This requirement is automatically waived if the employee filed notice within one year after the injury or if the immediate superior had actual knowledge of the injury within 48 hours after occurrence.

(2) An original claim for compensation for disability or death must be filed within one year after the injury or death under 5 U.S.C. 8122.

(3) Waiver of the requirements for giving notice and filing a claim within one year could be granted under 5 U.S.C. 8122 if a claim was filed within five years after the injury or death, and

(a) The failure to comply was due to circumstances beyond the control of the individual claiming benefits; or

(b) The individual claiming benefits could show sufficient cause or reason in explanation of the failure to file within one year, and material prejudice to the interest of the United States did not result from such failure. Material prejudice to the interest of the United States may result in rare situations because the OWCP is unable to investigate the facts because of the passage of time, the employing agency has been deactivated, there are no available records, and the claimant is unable to supply evidence to corroborate allegations made. In these cases, the burden is on OWCP to show that material prejudice has resulted.

The second reason for waiver can often be applied. Some examples include lack of knowledge of causal relationship between injury and disability (James T. Nunn, 1 ECAB 165) and immediate disability for work did not follow injury (Theodore E. Holmbug, 2 ECAB 195).

(4) Medical treatment for the results of an injury can be provided if timely written notice of injury was filed in accordance with 5 U.S.C. 8119, or if the immediate superior had actual knowledge of the injury within 48 hours. This is so even if a claim for compensation was not timely filed so as to permit an award for monetary compensation. For a full discussion of this situation, see Edward T. Lowery (8 ECAB 745).

c. Injuries and Deaths Prior to December 7, 1940. The FECA required that written notice of injury and claim for compensation for disability or death be given or filed within one year after the injury or death. There is no waiver provision with respect to such cases or any provision for delayed filing for latent disease or any other such circumstances.

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4. Determining Date Claim is Filed. This paragraph addresses how the date of filing is determined. This date is the date of receipt of a claim by the OWCP or by the employing agency, rather than the date the claim was completed.

a. Forms CA-1, CA-2, CA-5, CA-5b and CA-7 constitute claims for the purpose of considering the time requirements. The CE must determine whether the claim was received by OWCP or the employing agency within the time specified in paragraph 3. In most cases, this may be established by:

(1) The entries on Form CA-1 or CA-2;

(2) The date of receipt noted by the employing agency or OWCP;

(3) The date the employing agency transmitted it to OWCP;

(4) The date the official superior completed the claim form; or

(5) A statement from the official superior confirming the date the claim was received by the employing agency.

b. If a prescribed claim form has not been timely filed, the CE should consider any written documents from the person claiming benefits, or someone acting on this person's behalf, from which the substance of a claim can be reasonably deduced.

(1) If the injured employee is still working, the official superior should be asked to examine the official personnel file or other records, and provide OWCP with any communication from or on behalf of the claimant which may contain words of claim.

(2) Where the injured employee is not still employed by the Federal Government, and if there is any indication of earlier communication about a claim, the CE should request the official personnel file from the Federal Records Center. If any document in this file contains words of claim the CE should place a copy in the OWCP file along with memorandum identifying the document and its source.

(3) Decisions concerning the use of a document other than a prescribed form as a claim, should be made at an adjudicative level above that of the CE.

(4) If a claim is not received by OWCP or the employing agency within the statutory time frame after the date of injury, the CE must determine when time begins to run. Time begins to run as stated in the following paragraphs depending upon the type of injury or the status and location of the person claiming benefits.

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5. Traumatic Injury Claims. This paragraph discusses how determinations of timeliness are made in traumatic injury cases. Time begins to run from the date of injury where the injury can be identified as to time, place, and circumstances of occurrence. The CE must be reasonably certain that the date of injury has been correctly stated. This question should receive particularly careful consideration if the reporting has been delayed to the extent that the injury may not have been reported within the appropriate time frame. Additional evidence should be obtained when the CE questions whether the date has been properly reported. Sources used to verify the date of injury include:

a. Statements from the claimant, official superior, or witnesses explaining why they believe the date of injury has been correctly stated. A statement from the official superior may address the leave and attendance records showing whether the employee (and the witnesses where so indicated) was in fact present for duty on the alleged date of the accident or during the period claimed;

b. Copies of the medical records covering the medical examinations immediately following the injury with particular emphasis on the date of the accident shown in the history; and

c. Copies of any documents prepared immediately following or soon after the accident relating to the injury.

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6. Occupational Disease and Latent Injury Claims. This paragraph discusses how determinations of timeliness are made in occupational disease cases. In these cases, time begins to run when the injured employee becomes aware, or reasonably should have been aware, of a possible relationship between the disease or condition and the employment. Where the exposure to possible injurious employment-related conditions continues after this knowledge, the time for filing begins to run on the date of the employee's last exposure to the implicated conditions.

a. Form CA-2 requests the date the claimant first realized the presence of an occupational disease and related it to the employment, and how the employee came to this realization. Form CA-2 also requires the official superior to comment upon the claimant's statements. Where necessary, the CE should obtain additional information to clarify this issue.

b. If the claimant did not file within the statutory time limitations after exposure to the employment factors ceased, the medical reports should be examined to determine whether the claimant was aware, or reasonably should have been aware, of the illness and its possible relationship to employment. For example, the history obtained at the time of the first and subsequent examinations, the date when a definite diagnosis was made, or the advice given by the doctor to the claimant, may assist the CE in determining the issue of possible awareness.

c. If the employing agency gave regular physical examinations which might have detected signs of illness (for example, regular X-rays or hearing tests), the agency should be asked whether the results of such tests were positive for illness and whether the employee was notified of the results. [If the claimant was still exposed to employment hazard on or after September 7, 1974 and the agency's testing program disclosed the presence of an illness or impairment, this would constitute actual knowledge on the part of the agency, and timeliness would be satisfied even if the employee was not informed (see paragraph 3 a (2)(b) above.]

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7. Death Claims. This paragraph discusses how determinations of timeliness are made in death cases.

a. The statutory time requirements for filing such claims begin to run from the date of death, which normally will be determined by the official death certificate.

(1) In cases of death due to disease, time does not begin to run until the beneficiary is aware of, or by the exercise of reasonable diligence should have been aware of, the causal relationship of the death to the factors of employment [see 20 C.F.R. 10.105(c)]. Development of the question of when time begins to run in this situation should follow that outlined in subparagraph 6 above.

(2) In cases of deaths on and after September 7, 1974, the timely filing of a disability claim will satisfy the time requirements for a death claim based on the same injury.

b. For individuals who are missing under circumstances not affording immediate proof of death or those coming within the scope of the Missing Persons Act (Pub. Law 77-490), the OWCP must make its own independent finding on date of death, since the findings and date of presumptive death made under the Missing Persons Act are not binding upon OWCP. To make this finding, the following should appear in the record:

(1) Disappearance During a Period of Hostilities. The employing agency should advise the date of disappearance; whether the employee disappeared while actively participating in combat or under comparable conditions; whether the employee is accounted for as a prisoner of war or as a parolee or internee; whether there has been any official or other information concerning the employee's existence after the disappearance; and whether after termination of hostilities or declaration of peace, any information has been received which would rebut the inference of death arising from the facts. The claimant should advise whether the family has received any information as to the employee's whereabouts subsequent to the disappearance or after the restoration of normal conditions.

(2) All Other Disappearances. The employing agency should advise the date when the employee was last seen; a full description of the particular circumstances leading up to and resulting in the disappearance; and whether there has been any official or other information concerning the employee after the disappearance. The claimant should advise whether the family has received any information as to the employee's whereabouts subsequent to the disappearance.

c. A finding of death shall be made, and the date of death determined, as soon as practicable after the claim is filed, when the situation leaves little or no doubt that death occurred at the time of disappearance. Where the facts lead to a reasonable presumption that the employee may have escaped death, the determination should be deferred until enough time has elapsed to overcome the presumption of survival. In cases coming within the scope of the Missing Persons Act, the determination will not be made while the employee is being carried in a missing status.

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8. Special Circumstances. The purpose of this paragraph is to address determinations of timeliness in unusual situations.

a. For a Minor. The time limitations do not begin to run until this person reaches the age of 21 or has had a legal representative appointed.

b. For an Incompetent Individual. The time limitations do not begin to run while this person is incompetent and has no duly appointed legal representative. A determination of incompetence must be based on probative medical evidence and must be consistent with other actions by the claimant during the period in question (Paul S. Devlin, 39 ECAB 715).

c. For an injury or death occurring outside the United States between December 7, 1941 and August 10, 1946. The time for giving notice and filing claim began to run on October 14, 1949.

d. Posthumous Claim. Such a claim may be made by the estate or a survivor of a deceased employee for medical benefits only. A posthumous disability claim cannot be accepted. If OWCP receives a claim within the statutory requirement outlined in paragraph 3 (three years on and after September 7, 1974 and one year prior to September 7, 1974), the claim is timely filed and no further development of this issue is necessary.

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9. Further Development. Where timely written notice of injury was given or the immediate superior had timely actual knowledge of the injury, it should be accepted that the time requirements are met for further consideration of eligibility for compensation or medical benefits as appropriate. Findings must then be made on the issues of civil employee, fact of injury, performance of duty and causal relationship.

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Chapter 2-0802, Civil Employee

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/98

98-05

1. Purpose and Scope

06/95

95-25

2. Additional References

06/95

95-25

3. Proof that the Employer is an Instrumentality of the U.S.

06/95

95-25

4. Proof that the Injured/Deceased Individual is an "Employee"

06/95

95-25

5. Question of Applicant vs. Employee

06/95

95-25

6. Question of Independent Contractor vs. Employee

06/95

95-25

7. Postal Service Mail Messengers

06/95

95-25

8. Contract Job Cleaners Used by the Postal Service

06/95

95-25

9. Workers Serving Without Compensation

06/95

95-25

10. Volunteer Workers with the Department of Veterans Affairs

06/95

95-25

11. Attendants Authorized to Travel with DVA Patients

06/95

95-25

12. Affiliate Student Nurses of the DVA

06/95

95-25

13. Volunteer Workers with the Forest Service

06/95

95-25

14. Volunteer Weather Observers of the National Oceanic and Atmospheric Administration

06/95

95-25

15. Employees of the U.S. Property and Fiscal Officers (National Guard)

06/95

95-25

16. Employees Transferred to International Organizations

06/95

95-25

17. Loaned Employees

06/95

95-25

18. Cadets at State Maritime Academies

06/95

95-25

19. PHS Employees Detailed to a State or Local Agency

06/95

95-25

20. Grand and Petit Jurors

06/95

95-25

21. Alaska Railroad Employees

06/95

95-25

22. Participants in Community Work Experience Programs (CWEP)

06/95

95-25

23. Job Training Partnership Act

06/95

95-25

24. U.S. Park Police and Secret Service Employees

06/95

95-25

25. Volunteer Workers with the National Park Service

06/95

95-25

26. Employees of Wholly-Owned Instrumentalities of the U.S.

06/95

95-25

27. Student Volunteers, International Trade Administration

06/95

95-25

28. National Guard Civilian Youth Opportunities Pilot Program

06/95

95-25

29. NASA Exchange Employees

06/95

95-25

30. AmericCorps Members

06/95

95-25

31. Department of Defense Volunteers

06/95

95-25

32. Federal Emergency Management Agency (FEMA) Volunteers

09/96

96-28

33. Contract Observers on Vessels

06/98

98-05

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1. Purpose and Scope. When it is determined that the notice of injury or claim for compensation was timely given or filed, the Claims Examiner (CE) must consider whether the injured or deceased individual was a civil employee of the United States within the meaning of 5 U.S.C. 8101(1). This chapter contains policies and procedures for making this determination.

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2. Additional References. Further information may be obtained from the following sources:

a. FECA Program Memoranda (ProM), which discuss numerous groups of employees and provide rationale for many decisions.

b. PM Chapter 2-1700, which addresses Peace Corps and VISTA Volunteers, Neighborhood Youth Corps and Job Corps enrollees, law enforcement officers not employed by the United States, and members of the D.C. Metropolitan Police Reserve Corps.

c. PM Part 4, which discusses non-Federal law enforcement officers, claimants under the War Hazards Compensation Act and the War Claims Act, Civil Air Patrol volunteers, Reserve Officers' Training Corps (ROTC) Cadets, various Federal relief workers, foreign nationals, and Panama Canal Commission employees.

d. The FECA PM Index, which lists many groups of workers under the heading of "Employee." Also consult the Index to the decisions of the Employees' Compensation Appeals Board (ECAB).

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3. Proof that the Employer is an Instrumentality of the U.S. The CE must first determine whether the reporting agency is a "branch of the Government of the United States" as that term is used in 5 U.S.C. 8101(1) of the FECA. Completion by the official superior of the report of injury is prima facie proof of the status of the reporting office. The CE should examine the claim forms to identify the particular agency reporting the injury.

The CE may decide this question affirmatively when the evidence clearly shows the reporting agency is a component of the legislative, judicial, or executive branch of the Government of the United States. For this purpose, the executive branch includes the Executive Office of the President, the executive departments, the independent agencies and instrumentalities of the United States. The CE should refer to the United States Government Organization Manual if the reporting agency is unfamiliar. The CE should consult with a Senior CE or supervisor if not satisfied that the requirements have been met.

If further information is needed, the reporting office should be asked to clarify its status as a branch or instrumentality of the United States by citing the statutory authority for its existence and providing a copy of the pertinent statute. The agency should also be asked to state the source of its operating funds. The issue should then be referred, with the supporting documents, to the Director for Federal Employees' Compensation. Or, the agency may request a determination directly from the National Office.

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4. Proof that the Injured/Deceased Individual is an "Employee". The CE must next decide whether the injured or deceased individual had status as an officer or employee of the reporting office at the time of the injury. Here again, the supervisor's completion of a report of injury or death is prima facie proof of the worker's status as an "employee."

The CE may decide this question affirmatively when the evidence clearly shows that the service performed for the reporting office by the individual was of a kind usually performed by an employee, as distinguished from an independent contractor, and that a contract of employment was entered into prior to the injury.

Questions may arise concerning the status of volunteers or enrollees in social assistance programs. The employing agency should be asked to cite the statutory basis for accepting the services of volunteers or enrollees and to provide a copy of this legislation. The issue should then be referred, with the supporting documents, to the Director for Federal Employees' Compensation. Or, the agency may request a determination directly from the National Office.

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5. Question of Applicant vs. Employee. This question must be considered where it is unclear that a contract of hire was established before the injury or if the claimant worked at the agency prior to the injury.

a. The most usual situations involve cases where:

(1) The claimant is a casual employee;

(2) The injury occurs about the time the employment contract began or was about to begin; or

(3) The injury occurs in connection with a pre-employment examination, vaccination or immunization, or an event of a similar nature where the individual may not have as yet acquired the status of an "employee."

b. Where the claimant's status is unclear, the CE should obtain the information noted below. Any material discrepancy in the statements must be clarified by requesting supplemental statements from principals, or by obtaining similar evidence from other sources. The CE should ask the worker and reporting agency:

(1) The precise time when the worker accepted an offer of employment from the reporting agency;

(2) Whether such agreement was verbal or written (a copy should be requested if there was a written agreement; otherwise, particulars of the agreement should be furnished);

(3) Whether the worker was required to take an oath of office and, if so, whether the oath was taken prior to the injury;

(4) What work, if any, the worker had performed for the reporting office prior to the injury; and

(5) The precise time when the worker began rendering this service and when pay began accruing.

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6. Question of Independent Contractor vs. Employee.

a. Contract Employees. Not every person rendering service for the Federal government is necessarily an "employee."

Many such individuals are independent contractors or employees of independent contractors and have no status under the FECA. For this reason the CE must be particularly careful to determine whether the worker is an independent contractor or an "employee." Where this issue becomes a factor, the CE should request statements from the worker and the reporting agency, to show:

(1) Whether the worker performs services or offers services to the public generally as a contractor or is permitted to do so by the reporting agency and, if so, a full explanation;

(2) Whether the worker is required to furnish any tools or equipment and, if so, a full explanation;

(3) The period of time the work relationship is to exist;

(4) Whether the reporting agency has the right to discharge the worker at any time and, if so, when and under what circumstances;

(5) Whether the reporting agency has any right to control or direct how the work is to be performed and, if so, a full explanation;

(6) The manner in which payment for the worker's services is determined; and

(7) Whether the activity in which the worker was engaged was a regular and continuing activity of the reporting agency and, if not, a full explanation.

b. Proof of Status. Any material discrepancy in these statements must be clarified by requesting supplemental statements from the principals, or by obtaining similar evidence from other sources. A copy of the contract or agreement should be obtained if there was a written instrument to support the agreed-upon work relationship. Proofs of employee status are similar to those for regular employees of the United States.

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7. Postal Service Mail Messengers. Determinations of whether mail messengers who perform service for the U.S. Postal Service are considered civil employees are made on a case-by-case basis. These cases should be referred to a Senior CE.

Before referral, the CE should ask the reporting agency for copies of any written agreement or work contract executed by the mail messenger or the Postal Service when the injured individual began working or at any later date, and of any oath executed by the worker. Absent a written contract, the postmaster and the mail messenger should be asked to submit statements showing in full detail the terms of the oral agreement and the precise manner in which it was reached.

The reporting agency should also be asked to submit a statement showing:

a. The manner in which the worker qualified and was selected to act as mail messenger;

b. The distance the mail was carried;

c. The kind of equipment used and by whom it was furnished;

d. Whether the mail messenger was required to personally perform the service or whether assistants or substitutes were permitted and, if so, under what conditions and circumstances;

e. Whether the mail messenger had any other employment or performed or offered like or similar services to the public as an independent business service and, if so, this should be explained fully;

f. The manner and circumstances under which the relationship could be terminated;

g. The manner in which the pay was determined;

h. Who determined how, when, and in what manner the mail would be carried; and

i. What right, if any, the postmaster had to direct or supervise the work performed by the mail messenger and to what extent the postmaster exercised this right.

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8. Contract Job Cleaners Used by the Postal Service. In lieu of using employees with civil service appointments, the U.S. Postal Service frequently contracts for the services of individuals to perform janitorial work. The contracts consist of signed agreements, which may result from negotiation or invitation-bid. Determinations of whether contract job cleaners are civil employees under the FECA are made on a case-by-case basis and will depend on the particular facts of each case.

Cases of contract job cleaners are to be referred to a Senior CE for adjudication. The Senior CE should request:

a. A copy of the Postal Service agreement form under which the worker was serving when injured;

b. A statement from the postmaster showing the extent to which there was a right to control the manner of the worker's performance and the amount and extent of the control exercised over the worker; and

c. A statement from the contract job cleaner showing whether the injured person worked for any employer other than the Postal Service during the year before the injury and, if so, the employers' names and addresses and the inclusive dates worked, the kinds of work performed, the rates of pay, and the total amounts earned from each employer.

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9. Workers Serving Without Compensation. Except for cases of certain volunteers with the Department of Veterans Affairs (see paragraphs 10-12 below) and certain volunteers with the U.S. Department of Agriculture, Forest Service (see paragraph 13 below), determinations of civil employee status for volunteers must be made by a Senior CE or higher adjudicative authority.

a. Statutory Authority. In any case where status as a civil employee is claimed by reason of 5 U.S.C. 8101(1)(B), the CE must obtain a statement from the reporting agency citing the statutory authority by which the services of the injured or deceased individual were used. (See paragraph 4 concerning referral of such issues to the National office.)

b. Kind of Service Rendered. The CE must also ensure that the evidence shows whether the injured or deceased individual was "rendering a personal service of a kind similar to those of civilian officers or employees of the United States." If such evidence is not received with the initial submission, the CE should ask the reporting agency to submit a statement which fully describes the services rendered by the injured or deceased individual and shows whether the agency has persons on its payroll who render similar services and, if so, the job titles for those positions.

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10. Volunteer Workers with the Department of Veterans Affairs. OWCP has determined that the Department of Veterans Affairs (DVA) has statutory authority to use the services of persons who serve without compensation in its Volunteer Service Program. Therefore, the CE need not ask the DVA to cite its statutory authority for using the services of these individuals.

However, the CE must be certain that the injured or deceased individual was "rendering a personal service of a kind similar to those of civilian officers or employees of the United States" as required by 5 U.S.C. 8101(1)(B). (See instructions in preceding paragraph.)

The CE may affirmatively determine the status of these individuals when the service performed by the injured or deceased individual is clearly like the services in well-established positions in the Federal service, e.g., nurse's aide, recreation supervisor, etc. Otherwise, the question should be submitted for determination by a Senior CE or higher adjudicative authority.

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11. Attendants Authorized to Travel with DVA Patients. OWCP has ruled that a person has status as an "employee" while traveling under an authorization from the DVA as an attendant for one of its beneficiaries. The authority for the DVA to use the services of these individuals appears in Pub. Law 76-432 (38 U.S.C. 76), as amended. In any case of this nature, the CE should ask the DVA to submit:

a. A copy of the authorization issued to the attendant by the Department of Veterans Affairs; and

b. A statement showing whether the services of the injured or deceased individual were used pursuant to the provisions of Pub. Law 76-432 (38 U.S.C. 76), as amended. The CE may affirmatively determine the status of these individuals when the attendant was serving under a valid authorization and it is shown it was issued pursuant to this legislation.

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12. Affiliate Student Nurses of the DVA. OWCP has determined that an affiliate student nurse of the DVA has status as an "employee" when appointed for training pursuant to section 14A, Pub. Law 79-293. In any case of this nature the CE should ask the DVA for a statement showing whether the services of the injured or deceased individual were used pursuant to the provisions of this section. The CE may determine the status of these individuals affirmatively when it is shown they were serving under the authority of this legislation.

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13. Volunteer Workers with the Forest Service. A volunteer with the U.S. Department of Agriculture, Forest Service, whose services are accepted or used under the authority of Pub. Law 92-300 (Volunteers in the National Forests Act of 1972) has status as an employee by virtue of section 3(c) of that Act. Therefore, in cases of volunteers with the Forest Service, the CE should ask the employing agency for a statement showing whether the services of the injured or deceased individual were used pursuant to the provisions of that law. The CE may determine the status of the individual affirmatively when it is shown that the services were accepted or used under the authority of this legislation.

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14. Volunteer Weather Observers of the National Oceanic and Atmospheric Administration. The National Oceanic and Atmospheric Administration (NOAA) has many small weather stations where, by agreement, individuals make observations on a voluntary basis without pay. They are known as "volunteer weather observers." The operation of the station may be by agreement with:

a. Individuals who make observations on their own time. These individuals have status as employees while actually engaged in taking the observations or while performing activities incidental to making the observations. The CE may determine the status of these individuals affirmatively when the evidence clearly shows the agreement to operate the station was with the individual.

b. A company or institution, where its employees take the observations as part of their regular duties. These individuals do not have status as employees.

c. Individuals who are employees of a company or institution and who are permitted to take observations on company time. The status of these individuals is questionable and such cases should be referred to a Senior CE for final determination after the facts have been developed fully.
The CE should ask the NOAA to submit a copy of the agreement made with the individual, company, or institution for the operation of the weather station. If this agreement is not sufficiently detailed or otherwise fails to clarify the status of the injured or deceased individual, additional information should be requested of the NOAA, the injured individual or claimant, or the company or institution which may also be involved.
In many of cases involving individuals (subparagraphs 14a or 14c), the more difficult issue is whether the injury occurred in the performance of duty, and particular attention should be given to the guidance in FECA PM 2-804.

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15. Employees of the U.S. Property and Fiscal Officers (National Guard). All cases in this category must contain a statement from the U.S. Property and Fiscal Officer (or from some other responsible and knowledgeable official of the National Guard) certifying that the injured or deceased individual was a civil employee of the U.S. paid from Federal funds, and at the time of injury was performing duties in a civilian status. These agencies have been instructed to submit this certification with the original reports on Form CA-1 or CA-2. It should be requested from the reporting agency if it is missing.

a. This certificate is required because these civilian caretakers and technicians serve in a dual capacity:

(1) As members of the State National Guard in a military capacity, and

(2) As employees of the U.S. Property and Fiscal Officer in a civilian capacity. This certification is prima facie proof that at the time of the injury, the injured or deceased individual had status as an employee.

b. The CE may accept this certificate and affirmatively determine the employee's status on this basis, unless the particular facts and circumstances of the case or other evidence creates doubt whether the certification is correct. The CE should consult with the Senior CE or supervisor if it is felt that certification is not valid.

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16. Employees Transferred to International Organizations. A Federal employee who transfers to an international organization retains the coverage, rights and benefits of the FECA if, prior to the transfer, the employee was serving under a Federal appointment not limited to one year or less, and the head of the Federal agency consented to the transfer (see Pub. Law 85-795).

In any case of injury or death to a Federal employee after transfer to an international organization, the CE should ask that the forms, reports, or certificates required of an official superior be completed and signed by an appropriate official of the Federal agency which originally employed the claimant.

Alternatively, forms, reports, claims, etc., will be acceptable when completed by an official of the international organization if they are either countersigned by an official of the Federal agency, or accompanied by a certificate from the Federal agency confirming the employee's employment status and duty status at the time of the accident.

Additionally, an appropriate official of the Federal agency should be asked to submit a statement showing the following:

(1) Whether, prior to the transfer to the international organization, the employee was serving with the Federal agency under a Federal appointment not limited to one year or less; and

(2) Whether the employee transferred to the international organization with the consent of the head of the Federal agency as provided by Pub. Law 85-795. In this situation the Federal agency should always be asked to act as the reporting office.

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17. Loaned Employees. Careful consideration must be given to the employment status of Federal employees who are injured while performing service for a private employer. The CE must determine whether the injured or deceased individual was merely loaned to the private employer and retained status as a Federal employee, or whether a transfer of employment occurred, thereby terminating the prior status as a Federal employee. The CE should obtain a statement from the reporting agency which shows:

a. The citation of any statute which authorizes the injured or deceased individual to perform service for a private employer;

b. The name of the person who had immediate control and direction of the work activities of the injured or deceased individual at the time of the injury;

c. What right or general responsibility, if any, the reporting agency had at the time of the injury to direct or control the work activities of the injured or deceased individual;

d. From whom the injured or deceased individual received salary at the time of the injury. If the private employer paid the salary, did the reporting agency reimburse that employer from Federal funds appropriated for the payment of personal services, and if so, how;

e. Whether after completion of the assignment the injured or deceased individual was expected to resume the performance of service for the reporting agency and, if so, when and under what circumstances;

f. What interest, if any, the reporting agency had in the work being performed by the private employer; and

g. What benefit, if any, the reporting agency derived from the service performed for the private employer by the injured or deceased individual.

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18. Cadets at State Maritime Academies. OWCP has determined that cadets at state maritime academies in Maine, Massachusetts, New York, Texas and California are eligible to receive the benefits of the FECA by reason of their status as enrolled members of the United States Maritime Service. The reports and certificates which OWCP requires of an official superior may be completed by an appropriate official of the state academy, who will in turn forward them to the Director, Office of Maritime Labor and Training, U.S. Department of Transportation, Maritime Administration, 400 Seventh Street, S.W., Washington, D.C. 20590.

The Washington office of the Maritime Administration will make the necessary inquiries and otherwise determine the accuracy of the reports and then forward them to the proper OWCP district office. The original submission of the basic compensation reports must include a certification from the Supervisor for State Maritime Academies showing whether at the time of the injury the individual was enrolled as a cadet in the U.S. Maritime Service.

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19. PHS Employees Detailed to a State or Local Agency. U.S. Public Health Service employees who are assigned to state or local agencies either maintain their Federal status in all respects, including entitlement to compensation, or are carried by PHS on leave without pay status and are paid by the state. In either case, they are entitled by law to benefits of the FECA.

In all cases of PHS employees injured while assigned to state or local agencies, inquiries should be made to determine if they are receiving or have received benefits under a state compensation law. If so, the Public Health Service Act of 1943 requires that an election should be requested and must be made within one year. If the claimant elects FECA coverage, the state should be reimbursed from any compensation due, and the balance should be paid to the claimant.

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20. Grand and Petit Jurors. Pub. Law 97-463, effective January 12, 1983, provides that persons serving as grand or petit Federal jurors are entitled to benefits under the Act, for injuries occurring on or after that date.

a. Coverage of jurors is limited to injury in, or arising from, situations where the juror is:

(1) In attendance at court pursuant to a summons.

(2) In deliberation.

(3) At a location, such as the scene of a crime, for the purpose of taking a view.

(4) Sequestered by order of a judge.
A juror is not covered while traveling to and from home.

b. The pay rate for compensation purposes for grand or petit Federal jurors will be that of a GS-2, step 1, unless the juror is a Federal employee. In that case the pay rate is based on the juror's actual Federal employment and is determined in accordance with 5 U.S.C. 8114. Entitlement to compensation for disability does not begin until the day after termination of service as a juror.

c. The continuation of pay provisions of 5 U.S.C. 8118 would only apply if the juror is a Federal employee who would be entitled to COP by virtue of the definition given at 5 U.S.C. 8101(1)F.

d. Jurors who are not otherwise Federal employees are entitled to all rights and benefits under the FECA, aside from COP.

e. The clerk of the court, or a designee, will serve as the official superior in these cases.

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21. Alaska Railroad Employees. The Federal Railroad Administration and the State of Alaska have transferred the Alaska Railroad to State control. As part of the transfer agreement, it was determined that all compensation cases involving injuries or occupational diseases occurring on or after January 6, 1985 were the responsibility of the State of Alaska through the Alaska Railroad Corporation. On that date, employees of the Alaska Railroad ceased to be employees of the Federal government for purposes of the Act.

a. Injuries sustained before January 6, 1985 are covered under the FECA, and the Federal Railroad Administration of the Department of Transportation is the responsible Federal agency. Inquiries about cases arising because of injury or exposure which occurred on or after January 6, 1985 should be referred to:

Mr. Marvin Yetter
Comptroller
Alaska Railroad Corporation
Pouch 7-2111
Anchorage, Alaska 99510

b. In an occupational disease case where exposure to employment factors claimed as injurious occurs on or after January 6, 1985, the CE should return the claim to the claimant and advise that the FECA does not apply. The claimant should be instructed to contact the Alaska Railroad Corporation at the address noted above. Where exposure ended prior to January 6, 1985, the FECA continues to apply, and such cases will be handled in the usual manner.

c. If it is not clear when exposure ceased, or whether a "recurrence" is a "new injury," it may be necessary to create a case and develop the issue. In any event, any request from a claimants for a formal decision on the coverage of the FECA should be honored.

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22. Participants in Community Work Experience Programs (CWEP). On July 18, 1984, the Congress passed Pub. Law 98-369, which determined that participants in community work experience programs at Federal agencies are not to be considered Federal employees. Further, it held that:

The State agency shall provide appropriate workers' compensation and tort claims protection to each participant performing work for a Federal office or agency...on the same basis as such compensation and protection are provided to other participants...in the State.

While CWEP participants hosted by Federal agencies would qualify as Federal employees for the purpose of the FECA, as long as a Federal supervisor controlled the work activities, the intent of Congress in passing the above-cited legislation is clear. Therefore, it has been determined that for the purpose of the FECA, a participant working at a Federal installation under the supervision of a Federal employee prior to July 18, 1984 is entitled to coverage under the Act.

a. Where an injury is sustained before July 18, 1984, the CE should determine if it occurred while the participant was hosted at a Federal facility and whether the work activities were controlled by a Federal employee. If so, the participant is to be considered covered under the FECA.

b. Where an injury is sustained on July 18, 1984 or later, the case should be denied on the basis that the claimant is not considered an employee of the Federal government for purposes of the FECA.

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23. The Job Training Partnership Act (JTPA). The JPTA superseded the Comprehensive Employment and Training Act (CETA), and training programs covered under the JTPA have superseded CETA training programs, which have been discontinued. (The JTPA continues to fund the Job Corps, whose enrollees are covered under 5 U.S.C. 8143.)

Some Federal agencies host participants in JTPA training programs (participants are sponsored by State agencies, local organizations which have contracted to operate programs, etc.) Similar to CETA enrollees, program participants hosted at a Federal installation who are under the technical direction and supervision of a Federal employee are employees for compensation purposes under 5 U.S.C.8101(1).

a. Where a participant in a JTPA training program is hosted at a Federal installation, the participant will be considered to be an employee for the purposes of the FECA, where the work performed is under the technical direction and supervision of a Federal employee.

b. The hosted participants who meet the criteria in subparagraph 23a above are considered to be civil employees under the provisions of 5 U.S.C. 8101(1)(B) and are not entitled to continuation of pay (COP) under 5 U.S.C. 8118. They are not direct employees of the Government.

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24. U.S. Park Police and Secret Service Employees. The Federal Employees' Retirement System Act of 1986 removed U.S. Park Police officers and Secret Service officers hired after December 31, 1983 from entitlement to certain medical and disability benefits granted in Title 4 of the District of Columbia Code. These individuals are now covered under the FECA.

a. Park Police and Secret Service officers and agents hired after December 31, 1983 are covered by the FECA for injuries at work which occurred on or after January 1, 1987. In occupational disease cases, injurious exposure on or after January 1, 1987 would entitle the officer to FECA coverage for periods of disability subsequent to that date.

b. For these officers, any recurrence of disability due to an injury or illness occurring prior to January 1, 1987 is covered under Title 4 of the District of Columbia Code. If such a claim is filed with FECA, it should be denied, and the employing agency should be notified of the recurrence of a prior injury.
However, an event at work on or after January 1, 1987, which aggravated a previously established condition would bring the officer under FECA coverage for subsequent disability, since a new injury would be involved. Medical records of previous treatment may be requested from the claimant and the employing agency.

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25. Volunteer Workers with the National Park Service. Pub. Law 91-357 (Volunteers in the Parks Act of 1969) authorizes the U.S. Department of the Interior, National Park Service to use the services of volunteers in the national parks, and such individuals are considered employees by virtue of section 3(c) of that Act. Therefore, in any case involving a volunteer with the Park Service, the CE should ask the reporting agency to state whether the services of the injured or deceased individual were accepted or used according to the provisions of Pub. Law 91-357. If so, the individual may be considered a civil employee.

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26. Employees of Wholly-Owned Instrumentalities of the U.S. Section 8101(1)(A) of the FECA provides coverage for employees of "an instrumentality wholly owned by the United States". Such entities may include corporations established for the specific purpose of supporting a government agency, as with research corporations funded to support projects directed by the Department of Veterans Affairs, and which are authorized by Pub. Law 100-322. Workers in such organizations may be considered civil employees.

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27. Student Volunteers, International Trade Administration. These volunteers for the U. S. Department of Commerce may be U.S. citizens or foreign nationals. Their services are specifically authorized under 5 U.S.C. 3111, which states that they are considered Federal employees under 5 U.S.C. 8101 et seq. They work under a Volunteer Service Agreement (VSA) and are supervised by the Foreign Commercial Service Officer at the assigned mission. According to the VSA, their duties include assignments such as conducting market research, preparing reports, drafting replies to correspondence, and promoting and recruiting exhibitors for trade events. These volunteers may be considered civil employees.

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28. National Guard Civilian Youth Opportunities Pilot Program. Participants in this program, which was established by the Defense Authorization Act of 1993 and which is also known as the Youth Challenge Program, undergo military-based training which includes supervised work experience in community service and conservation projects. The enrollees may be considered civil employees for purposes of coverage under the FECA, since the Defense Authorization Act specifically authorizes their services and states that they will be considered Federal employees under 5 U.S.C. 8101 et seq.

The law defines performance of duty for these enrollees much as FECA PM Chapter 2-1700.6c describes it for Job Corps enrollees.

The guidance in that chapter should be used in making performance of duty determinations for enrollees in the Youth Opportunities Pilot Program.

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29. NASA Exchange Employees. Employees of exchanges operated by the National Aeronautics and Space Administration (NASA) work in cafeterias and other facilities designed for the welfare of NASA employees. These exchanges are similar to those operated by the armed forces, whose employees are covered under the Longshore and Harbor Workers' Compensation Act (LHWCA) rather than the FECA. Because the LHWCA covers only employees of the armed forces, it has been determined that NASA exchange employees are to be considered civil employees under the FECA.

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30. AmeriCorps Members. The Commission on National and Community Service administers the American Conservation and Youth Corps, which makes grants to states or other applicants (non-profit groups) to fund youth service corps. The participants are not generally considered Federal employees, even though some may work directly for Federal agencies. However, section 42 U.S.C. 12655n (b)(2) states in part that:

a participant or crew leader serving in a program that receives assistance under this subtitle...shall be considered an employee of the United States...as defined in section 8101 of title 5, United States Code, and the provision of that subchapter shall apply, except--

(A) the term "performance of duty", as used in such subchapter, shall not include an act of a participant or crew leader while absent from the assigned post of duty of such participant or crew leader, except while participating in an activity authorized by or under the direction and supervision of a program agency (including an activity while on pass or during travel to or from such post of duty); and

(B) compensation for disability shall not begin to accrue until the day following the date that the employment of the injured participant or crew leader is terminated.

The CE should inquire whether the crew leader or participant was serving with a Federal agency, a non-profit agency which received a grant directly from the Commission on National and Community Service, or with a state program. Only in the first two instances may the AmeriCorps member be considered a Federal employee for purposes of coverage under the FECA.

The pay rate for these workers is set at the GS-5, step 1 level. They are not entitled to receive continuation of pay (COP).

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31. Department of Defense Volunteers. The National Defense Act of 1995 (Pub. Law 103-337) authorized a six-month pilot program expanding the Department of Defense's authority to accept the services of volunteers at designated installations. The pilot will end on August 31, 1995, but it is anticipated that the program will continue after that date.

a. Services. These volunteers will perform a variety of services in medical, dental, nursing, and other health-care settings; museums and natural resources programs; and family support programs, child development and youth activities, libraries, educational and religious settings, housing referral, spouse employment assistance, and morale, welfare and recreation programs.

b. Coverage. The law specifically provides coverage under the FECA for these volunteers, except that those volunteers working for non-appropriated fund instrumentalities are covered for workers compensation purposes by the Longshore and Harbor Workers' Compensation Act.

c. Pay Rate. The law also specifies that the monthly pay rate for these volunteers is to be determined by multiplying the average monthly number of hours that the person provided the services by the minimum wage determined under the Fair Labor Standards Act.

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32. Federal Emergency Management Agency (FEMA) Volunteers. The Robert T. Stafford Disaster Relief and Emergency Act, P.L. 93-288, as amended, 42 U.S.C. 5121, et. seq., authorizes the FEMA to form Urban Search and Rescue (US&R) Response system member squads from state and local police, firefighter and emergency medical personnel. The squads train at FEMA's direction and according to FEMA's requirements, so they are ready when activated in case of a disaster. FEMA transports them to the disaster and directs their actions for the duration of the crisis. A FEMA employee will complete the supervisor's part of the notice of injury, illness or death.

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33. Contract Observers on Vessels. Public Law 104-297, enacted on October 11, 1996, provides that observers on vessels who are under contract to carry out responsibilities under the Magnuson-Stevens Fishery Conservation and Management Act or the Marine Mammal Protection Act of 1972 shall be considered Federal employees for the purpose of compensation under the FECA.

Contract observers are employed in private industry to carry out the requirements of these Acts, which are under the jurisdiction of the Department of Commerce. Since these individuals are not Federal employees, the Department of Commerce will not be directly involved in the claims process. All claims from contract observers and their survivors will be forwarded to the National Operations Office (District 25) without jacketing.

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Chapter 2-0803, Fact of Injury

Paragraph and Subject

Date

Trans. No.

Table of Contents

08/12

12-10

1. Purpose and Scope

08/12

12-10

2. Components of Fact of Injury

08/12

12-10

3. FOI-Factual

08/12

12-10

4. FOI-Medical

08/12

12-10

5. Denial Reason

08/12

12-10

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1. Purpose and Scope. After the elements of "time" and "civil employee" have been considered, the Claims Examiner (CE) must decide whether the employee sustained a personal injury. This requirement is labeled "fact of injury." This chapter contains guidelines for determining fact of injury.

The CE should refer to the FECA PM Chapter 2-0800 (Initial Development of Claims) for specific information regarding how to properly develop claims.

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2. Components of Fact of Injury. This element has both a factual and medical component, FOI-Factual and FOI-Medical. See generally Elaine Pendleton, 40 ECAB 1143 (1989). The CE must decide whether FOI-Factual has been met before addressing FOI-Medical. Both of these criteria must be satisfied before proceeding to consider the fourth basic element of a claim, performance of duty.

a. FOI-Factual. The CE must review the evidence of file to determine whether the claimant actually experienced the accident, untoward event, or employment factor which is alleged to have occurred. This is a factual determination.

b. FOI-Medical. The CE must review the evidence of file to determine whether a medical condition has been diagnosed in connection with the event. To make this determination, medical evidence is required. (There are, however, some instances where the injury is obvious on visual inspection and medical evidence is not required. Refer to part 4a.2 below.)

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3. Fact of Injury – Factual. In traumatic injury claims, to determine whether the injury in fact occurred, emphasis is on time, place, and circumstance. In occupational disease cases, the evidence should establish that the claimant was, in fact, exposed to the claimed work factors (amount, volume, duration, etc.).

a. The CE should thoroughly review the factual information and documentation submitted with the claim form and consider the following evidence to determine whether FOI-Factual has been met:

(1) Claimant Statement (and any documentation submitted). A statement from the claimant or someone acting on the claimant's behalf is mandatory. In traumatic injury cases, the statement should indicate the nature of the injury and address when, where, and how it occurred. In occupational disease claims, the statement should describe the employment factors and/or exposures that are being attributed to the claimed condition(s).

An employee's statement alleging that an injury occurred at a given time and in a given manner is of great probative value and will stand unless refuted by strong persuasive evidence. See, R.K., Docket No. 10-930 (issued January 7, 2011).

(2) Employing Agency Statement (and any documentation submitted). A statement from the employing agency confirming that the alleged injury or work exposure occurred is extremely useful when establishing a claim. A positive statement from the employing agency is not required, however, and lack of a positive statement from the employing agency does not defeat a compensation claim. Any disagreement by the employing agency, though, should be carefully considered. The statement should be reviewed with the totality of the evidence and further developed if it casts significant doubt on the statement made by the claimant.

(3) Witness Statements. Statements from witnesses confirming or refuting the claimant's allegations concerning the occurrence of the injury are useful, but not mandatory. While statements are helpful, the Employees' Compensation Appeals Board (ECAB) has held that an injury does not have to be confirmed by eyewitnesses to establish the fact that an employee sustained an injury in the performance of duty as alleged. See, M.H., 59 ECAB 461 (2008).

b. Inconsistencies. The ECAB has held that the employee's statements must be consistent with the surrounding facts and circumstances and his/her subsequent course of action. Such circumstances as late notification of injury, lack of confirmation of injury, continuing to work without apparent difficulty following the alleged injury, and failure to obtain medical treatment may cast doubt on an employee's statements in determining whether s/he has established his/her claim.

See, H.T., Docket No. 12-40 (issued April 25, 2012) ("To establish that an injury occurred as alleged, the injury need not be confirmed by eyewitnesses, but the employee's statements must be consistent with the surrounding facts and circumstances and his subsequent course of action. In determining whether a case has been established, such circumstances as late notification of injury, lack of confirmation of injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the employee's statements. The employee has not met his burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity of the claim.")

Also see, W.L., Docket No. 11-1864 (issued April 25, 2012) (ECAB found that appellant did not present a clear and consistent factual account of how and when her injury occurred: "Here, appellant specified that she injured her left hip and lower back on January 24, 2006 when she tripped over a mailbag and fell down at work. Thereafter, she was symptomatic for five years as a result of routine casing, loading and delivery of mail, which entailed reaching, bending and carrying a satchel weighing between 35 and 70 pounds. This is inconsistent with appellant's original assertion in the Form CA-2 that she only became aware of her condition and its relationship to her federal employment on April 22, 2010. Furthermore, the case record shows that she did not seek medical treatment until April 22, 2010 and did not file a claim until June 2, 2010, more than five years following the onset of symptoms. Appellant testified at the telephonic hearing that she continued to work until April 17, 2010." ECAB concluded that the fact that appellant failed to "address the incongruities presented by these facts, circumstances and her own subsequent course of action...casts serious doubt upon the validity of the claim.")

c. Development of Factual Evidence. If the evidence in the case file is unclear or inconsistent, the case should be developed as outlined in PM 2-0800. Depending upon the specifics of the case, evidence can be requested directly from the claimant or the Employing Agency.

(1) Claimant. The CE may need to request a statement from the claimant addressing one or more of the following issues:

(a) The specific details surrounding the injury, or, for an occupational disease case, the specific employment-related activities alleged to have caused the condition.

This also may include questioning to determine whether the claimant is claiming an occupational disease or traumatic injury. In these instances, it is helpful to provide the definitions for each and ask the claimant to clarify the circumstances.

(b) The immediate effects of the injury and what the claimant did immediately thereafter.

(c) Whether the claimant sustained any other injury, either on or off duty, between the date of injury and the date it was first reported to the supervisor and/or the physician.

(d) The name and address of the physician first consulted, and the date of first examination for the injury in question.

(e) A description of the claimant's medical condition between the date of injury and the date of first medical treatment, and the nature and frequency of any home treatment.

(f) Why the claimant delayed seeking medical care.

(g) A statement regarding any similar disability or symptoms before the injury (with submission of all prior treatment records).

(h) Whether the claimant knew of the requirement under the FECA to provide prompt notice of injury and why the claimant did not do so.

(2) Employing Agency. The CE may need to request a statement regarding how the information submitted about the injury was obtained, and when it was acquired.

In occupational disease cases in particular, the claimant's position description is often (but not always) necessary to fully document the claimant's exposure. If needed, or if the information in the file regarding the claimant's work duties is unclear, the position description should be requested.

(3) The CE may also request witness statements directly from the claimant and/or the Employing Agency.

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4. Fact of Injury – Medical.

a. The CE must consider the following when determining whether FOI-Medical has been met:

(1) A medical report is required from a qualified physician, as defined in 5 U.S.C. 8101(2), which states that, "'physician' includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. The term "physician" includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist, and subject to regulation by the Secretary."

(2) The medical report must provide a diagnosis linked to the injury, except in cases of visible injury. See FECA PM 2-0800-6 for more details regarding the acceptance of a case for a visible injury without a medical report (i.e. burns, lacerations, insect bites, etc.).

See, K.C., Docket No. 09-745 (issued October 7, 2009) (ECAB noted that the record reflected that the incident occurred as alleged; however, the evidence of record does not establish that a physical injury actually occurred. ECAB noted that none of the medical reports contained a firm diagnosis of any condition and therefore did not establish a physical injury. ECAB stated that exposure alone was not sufficient to satisfy appellant's burden in traumatic injury cases.)

(3) The diagnosis does not have to match the exact condition claimed. For example, the employee claims an injury to the right arm as the result of slipping and falling on ice. A diagnosis of a right hand condition, a right shoulder condition, or even a neck or back condition would satisfy FOI-Medical. A diagnosis of hypertension or diabetes would not satisfy FOI-Medical, as such diagnoses could in no way be reasonably connected to a slip and fall incident.

(4) The medical evidence does not need to address the issue of causal relationship in order for FOI-Medical to be substantiated. Causal relationship is a separate issue from fact of injury, even though medical evidence is needed to establish both aspects of the claim.

See, L.N., Docket No. 10-1695 (issued May 3, 2011) (ECAB held that contrary to OWCP's findings, "the medical evidence of record establishes a firm medical diagnosis. Given that appellant has established a January 8, 2010 employment incident and a diagnosed condition, the question becomes whether the employment incident caused his left shoulder problem.")

(5) The medical evidence does not need to address any disability which may have resulted from the injury in order for FOI-Medical to be substantiated.

(6) Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.

b. Development of Medical Evidence. If a diagnosis is not present, the claim should be developed for a medical diagnosis, as outlined in FECA PM Chapter 2-0800. In this instance, the claim should also be developed for causal relationship, since this would obviously be needed as well if FOI-Medical is not met.

Medical reports in the possession of the employing agency should be requested directly from the employing agency.

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5. Denial Reason.

a. If the factual evidence fails to establish that the injury occurred, the claim should be denied on a FOI-Factual basis.

b. If the factual evidence establishes that the injury occurred, but the medical evidence fails to establish that a medical condition has been diagnosed in connection with that event or claimed work duties, the claim should be denied on a FOI-Medical basis.

c. If the factual evidence fails to establish that the injury occurred, and the medical evidence fails to establish that a medical condition has been diagnosed in connection with that event or claimed work duties, the claim should be denied on a FOI-Factual basis.

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Chapter 2-0804, Performance of Duty

Paragraph and Subject

Date

Trans. No.

Table of Contents

07/97

97-19

1. Purpose and Scope

08/92

92-32

2. Adjudication

08/92

92-32

3. Terminology and Sources of Evidence

09/95

95-34

4. Industrial Premises

08/92

92-32

5. Off-Premises

08/92

92-32

6. To and From Work

08/92

92-32

7. Diversions from Duty

08/92

92-32

8. Recreation

08/92

92-32

9. Idiopathic Falls

08/92

92-32

10. Assault Cases

08/92

92-32

11. Horseplay

08/92

92-32

 

03/94

94-16

12. Coworker Harassment or Teasing

03/94

94-16

 

01/97

97-07

13. Prohibited Activities

03/94

94-16

14. Statutory Exclusions

03/94

94-16

 

09/95

95-34

15. Suicide

03/94

94-16

 

09/95

95-34

16. Representational Functions

03/94

94-16

 

07/97

97-19

17. Work-Connected Events Which Are Not Factors of Employments

03/94

94-16

 

01/97

97-07

 

07/97

97-19

18. Employing Agency Physical Fitness Programs

03/94

94-16

19. Deleterious Effects of Medical Services Furnished by the Employing Establishment

03/94

94-16

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1. Purpose and Scope. This chapter contains guidelines for determining the question of "performance of duty". Additional references may be obtained from the FECA Procedure Manual Index. Also consult the Index to the decisions of the Employees' Compensation Appeals Board (ECAB). After the questions of "time," "employee," and "fact of injury" have been determined affirmatively, the Claims Examiner (CE) should decide whether the employee was in the performance of duty when the injury occurred.

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2. Adjudication. The performance of duty question may be decided affirmatively by the CE if there is no conflict in the evidence and if the facts establish that the employee was in a duty status. Adverse determinations and determinations requiring evaluation of conflicting evidence and/or involving borderline situations must be made at an adjudicative level above that of the CE. If it appears that any of the statutory exclusions to compensation set forth in 5 U.S.C. 8102(a)(1), (2) and (3) may be applicable, evidence to make a determination must be obtained in accordance with paragraphs 13 and 14 of this chapter.

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3. Terminology and Sources of Evidence. Certain statutes administered by the Office, relating mainly to military or quasi-military establishments, stipulate that injury or death must have occurred in the "line of duty" for compensation to be paid. This phrase does not appear in most workers' compensation statutes. The Office's policy is to follow, to the extent possible, the principles and interpretations applied by the particular service which employed the disabled or deceased individual. Such "line of duty" determinations, however, are subject to review for conformance with the "performance of duty" concept.
The question of performance of duty is determined by the same evidence outlined in FECA PM 2-800.6 and by the answers to questions on Forms CA-1, CA-2 and CA-6.

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4. Industrial Premises. An employee who has a fixed place of employment, and is injured on the premises of the employer, has the protection of the FECA unless one of the statutory exclusions applies or the employee was doing something unconnected with the employment.

a. Injuries arising on the premises may be approved by the CE if it is shown the injury occurred on the premises and:

(1) The employee was performing assigned duties, or

(2) The employee was engaged in an activity reasonably incident to the employment such as:

(a) Personal acts for the employee's comfort, convenience and relaxation,

(b) Eating meals and snacks on the premises and

(c) Taking authorized coffee breaks, or

(3) The injury occurred while the employee was on the premises within a reasonable time before or after the end of the normal work shift.

b. Was Employee on Premises When Injured? If the employee has a fixed place of work, the CE must ascertain whether the employee was on the premises when the injury occurred. The answers to the appropriate sections of Forms CA-1, CA-2 and CA-6 contain information on this point. If clarification is needed, it should be secured from the official superior in the form of a statement which describes the boundaries of the premises and shows whether the employee was within those boundaries when the injury occurred. Where indicated, the clarification should include a diagram showing the boundaries of the industrial premises and the location of the injury site in relation to the premises.

c. What Was The Employee Doing When Injured?

(1) If the injury occurred on the premises, the CE must ascertain whether or not the employee was acting within the scope of employment. The appropriate portions of Form CA-1 and CA-6 request this information from the official superior. An affirmative response by the official superior is sufficient to establish that the employee was in the performance of duty unless there are facts or other evidence which indicate the answer may be incorrect.

(2) If the employee was not doing regular work, the record must show exactly what the employee was doing when injured and the location of the area where the injury occurred in relation to the regular workplace. In disability cases both the official superior and the claimant should submit a statement showing precisely what the employee was doing when injured. If the initial reports and statements do not contain precise information in this regard, the official superior should be asked to submit a supplemental clarifying statement. When the official superior has no knowledge of the facts and circumstances of the injury, statements should be obtained from coworkers or other witnesses who may have such knowledge. A conference should be held when conflicting statements are presented.

d. Before Starting Time and After Quitting Time.

(1) There is no need to inquire about an injury which occurs before starting time or after quitting time unless the interval between the injury and the work hours seems excessive. The official superior should be requested to:

(a) Submit a statement explaining why the employee was on the premises at the time of the injury, or

(b) Obtain statements from coworkers who may know why the employee was on the premises at the time of the injury, if the official superior does not have this information.

(2) In disability cases an explanatory statement should also be obtained from the injured employee.

e. Bunkhouse Rule.

(1) An employee has the protection of the FECA if injured during the reasonable use of premises which he or she is required or expected to occupy, and which are provided by the employer. In this category of cases, the official superior should be requested to submit a statement showing:

(a) Whether the employee was required or expected to occupy the quarters where the injury occurred and, if so, this should be explained fully;

(b) Whether the employer provided the quarters for the employee and, if so, this should be explained fully; and

(c) In what activity the employee was engaged at the time of the injury.

(2) The statement from the official superior should be sufficient to make a proper determination in most cases. Where needed, additional information should be obtained from the official superior, injured employee, co-workers, and witnesses.

f. Parking Facilities. The industrial premises include the parking facilities owned, controlled, or managed by the employer. An employee is in the performance of duty when injured while on such parking facilities unless engaged in an activity sufficient for removal from the scope of employment. In such cases the official superior should be requested to state whether the parking facilities are owned, controlled, or managed by the employer, and whether the injury did in fact occur in the parking area. The CE may approve the case when the official superior's response is affirmative and consistent with the other evidence.

g. Proximity Rule.

(1) An employee who has a fixed place of employment generally is not in the performance of duty when the injury occurs off the employer's premises. There are certain recognized exceptions to this general rule. One of these is the so-called proximity rule. It concerns those cases where the industrial premises are constructively extended to encompass a hazardous condition proximate to the premises, such as a public highway or railroad crossing, and considered to be a hazard of the employment as distinguished from a hazard which is not peculiar to the employer's premises. In this type of case the official superior should be requested to submit:

(a) A diagram showing the boundaries of the industrial premises and the location of the injury site in relation to the premises; and

(b) A statement which

(i) Describes any particular hazard which may have caused or contributed to the occurrence of the injury, and shows what relationship, if any, such hazard had to the employment, and

(ii) Also shows what control, jurisdiction, or care, if any, the employer assumed or had the right to assume over the place where the injury occurred.

(2) Determinations of this question must be made at an adjudicative level above that of the CE.

h. Visit to Premises.

(1) An employee's presence on the premises does not of itself afford the protection of the FECA. At the time of an injury, the employee must be on the premises for a work-related purpose; otherwise, the employee is not covered by the premises rule. Therefore, the CE must be alert for injuries which occur when the employee is on the premises for a personal reason as distinguished from a purpose incidental to the work. This usually concerns visits to the premises on days when the employee is not scheduled to work.

(2) In these situations the CE should ask the official superior for a statement which explains the reasons for the employee's presence on the premises at the time of the injury. In disability cases, the injured employee should be requested to submit such a statement. Similar statements should be obtained from co-workers or witnesses if the evidence is in conflict or otherwise requires clarification.

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5. Off-Premises Injuries. The protection of the FECA is not limited to injuries which occur on the industrial premises. There are many workers who are required to perform some or all of their duties away from the employer's premises. Here we are concerned with coverage for injuries which occur to these off-premises workers.

a. There are four broad classes of off-premises workers:

(1) Messengers, letter carriers, and chauffeurs who, by the nature of their work, perform service away from the employer's premises;

(2) Traveling auditors and inspectors, whose work requires them to be in a travel status;

(3) Workers having a fixed place of employment who are sent on errands or special missions by the employer; and

(4) Workers who perform services at home for their employer.

b. In these cases, the CE must determine whether at the time of the injury the employee:

(1) Was performing assigned duties,

(2) Was engaged in an activity which was a reasonable incident of the assignment, or

(3) Had deviated from the assignment and was engaged in a personal activity which was not related to the work. The general principles for deciding these cases differ because the protection of the premises rule does not exist for off-premises injuries. Furthermore, there is a difference in the application of these principles among the several kinds of off-premises injuries.

c. Workers Such as Messengers, Letter Carriers, and Chauffeurs.

(1) By the nature of their work, employees in this category are on the premises of the employer for only part of each working day and it follows that many of their injuries are sustained away from the industrial premises. Of course, claims for these employees when injured on the premises will be examined and adjudicated in accordance with the principles for all on-premises injuries. The off-premises injuries will require somewhat different consideration.

(2) For the off-premises injuries of these employees, it is neither necessary nor practicable to develop the evidence in all cases as fully as is required for the injuries sustained by other kinds of off-premises workers. No additional evidence is needed if the CE can reasonably conclude from the evidence on the notice of injury combined with other material in the file that the employee was performing assigned duties when the injury occurred.

(3) If it appears questionable that the employee was in the course of employment when injured, the official superior should be asked to submit:

(a) A statement with full explanation showing specifically whether the employee was in the performance of duty when the injury occurred, and whether at the time of injury the employee had deviated from the proper route for personal reasons; and

(b) A diagram showing the location of the accident in relation to the route of travel the employee was to follow to perform the assigned duty.

(4) In most cases, the evidence should be sufficient to adjudicate the claim. If not, supplemental statements should be obtained from the official superior, co-workers, or other possible witnesses, and in disability cases, from the injured employee.

d. Workers in a Travel Status.

(1) For injuries sustained in a travel status the record must contain evidence showing:

(a) When and where the employee last performed official duty;

(b) The distance between the place of injury and the place where official duty was last performed;

(c) Between what points the employee was traveling when injured;

(d) The purpose of the trip;

(e) When and where the employee was next expected to perform official duty;

(f) Whether the injury occurred on the direct or most usually traveled route between the place of last official duty and the place where the employee was expected to next perform official duty and, if not, the nature and extent of the deviation should be given with a full explanation of the reason for such deviation;

(g) Whether at the time of the injury the employee was riding in or driving a Government-owned vehicle; and

(h) Whether the employee's travel expenses were reimbursable.

(2) In injury cases, this information should be supplied by the injured employee, with the official superior confirming or refuting the employee's allegations (see Form CA-1014). In death cases, the information will be supplied by the official superior (see Form CA-1014). In appropriate cases, the CE should request:

(a) A copy of the employee's travel authorization, and

(b) A map or diagram showing the location of the place where official duty was last performed, the place where the employee was next expected to perform official duty, the shortest or most usually traveled route between these points, and the place where the accident occurred.

e. Workers on an Errand or Special Mission. For workers having a fixed place of employment, who are injured while on an errand or special mission, the CE will obtain the same information as for workers in travel status.

f. Workers Who Perform Service at Home.

(1) Ordinarily, the protection of the FECA does not extend to the employee's home, but there is an exception when the injury is sustained while the employee is performing official duties. In situations of this sort, the critical problem is to ascertain whether at the time of injury the employee was in fact doing something for the employer. The official superior should be requested to submit a statement showing:

(a) What directives were given to or what arrangements had been made with the employee for performing work at home or outside usual working hours;

(b) The particular work the employee was performing when injured; and

(c) Whether the official superior is of the opinion the employee was performing official duties at the time of the injury, with appropriate explanation for such opinion.

(2) In disability cases, the injured employee should be required to submit a statement showing:

(a) What directives were received from, or what arrangements had been made with, the employer for performing work at home or outside usual working hours;

(b) The particular work the employee was performing when injured; and

(c) The reasons for the belief that the employee was in the performance of duty at the time the injury occurred.

(3) If the statements are not sufficiently detailed or are otherwise insufficient to permit a proper determination, additional statements should be obtained from others in a position to know the circumstances.

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6. To and From Work. Employees do not generally have the protection of the FECA when injured while en route between work and home.

a. Exceptions. There are five well-established exceptions to this general rule. These exceptions are:

(1) Where the employment requires the employee to travel;

(2) Where the employer contracts for and furnishes transportation to and from work;

(3) Where the employee is subject to emergency duty, as in the case of firefighters;

(4) Where the employee uses the highway or public transportation to do something incidental to employment with the knowledge and approval of the employer; and

(5) Where the employee is required to travel during a curfew established by local, municipal, county or state authorities because of civil disturbances or for other reasons.

b. Where the Employment Requires the Employee to Travel. This situation will not occur in the case of an employee having a fixed place of employment unless on an errand or special mission. It usually involves an employee who performs all or most of the work away from the industrial premises, such as a chauffeur, truck driver, or messenger. In cases of this type the official superior should be requested to submit a supplemental statement fully describing the employee's assigned duties and showing how and in what manner the work required the employee to travel, whether on the highway or by public transportation. In injury cases a similar statement should be obtained from the injured employee.

c. Where the Employer Contracts for and Furnishes Transportation to and from Work. Where this expectation is claimed, the official superior should be requested to submit a supplemental statement showing, with appropriate explanation, whether the employee's transportation was furnished or otherwise provided by contract by contract by the employer. In injury cases a similar statement should be obtained from the injured employee. Also see Program Memorandum 104 dated October 24, 1969.

The Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (Public Law 109-59) amends Title 31, Section 1344 of the U.S. Code to allow Federal agencies in the National Capitol Region to pay for the costs of shuttle buses or other means of transportation between the place of employment and mass transit facilities. The bill statues that for "purpose of any determination under chapter 81 of title 5 ... an individual shall not be considered to be 'in the performance of duty' or 'acting within the scope of his or her employment' by virtue of the fact that such individual is receiving transportation services" under this legislation.

IF it is determined that a shuttle bus or other means of transportation to and from mass transit is authorized under this statue, then the injury is not considered to have occurred within the performance of duty. When requesting information from the agency about the employer-provided conveyance, the agency should be asked whether the service in question was provided pursuant to the above statutory authority.

d. Where the Employee is Subject to Emergency Duty.

(1) When it is alleged that the employee was subject to emergency duty, the official superior should be requested to submit:

(a) A copy of the injured employee's official position description, or other document showing that as the occasion arose, the duties did in fact require the performance of emergency duty; and

(b) A specific statement showing that at the time of the injury the employee was in fact traveling to or from work because of emergency duty.

(2) In disability cases, a statement from the injured employee should be requested showing whether at the time of the injury the employee was in fact going to or from work because of emergency duty.

e. Where the Employee Uses the Highway or Public Transportation to Perform a Service for the Employer.

(1) Where this exception is claimed, the official superior should be requested to submit a statement showing:

(a) The precise duty the employee had performed or was expected to perform for the employer during the trip in question; and

(b) Whether this was being done upon directions of the employer and, if not, whether the employer had prior knowledge of and had previously approved the employee's activity.

(2) In disability cases the injured employee should be requested to submit a similar statement.

f. Travel During a Curfew.

(1) When it has been determined that the employee was required to travel during a curfew established by local, municipal, county or state authorities because of civil disturbances or for other reasons, the official superior should be requested to submit:

(a) The reason the employee was requested to report for duty;

(b) Whether other employees were given administrative leave because of the curfew; and

(c) Whether the injury resulted from a specific hazard caused by the imposition of the curfew, such as an attack by rioting citizens.

(2) In disability cases the injured employee should be requested to submit a similar statement.

(3) When all the facts are developed, the case should be referred to the National Office.

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7. Diversions from Duty.

a. Emergencies.

(1) Some injuries occur when the employee steps outside the sphere of assigned duties to assist in an emergency, such as to extinguish a fire, assist a person who is injured or in imminent danger, etc. In these cases, it is particularly essential to determine the extent to which the employee diverted from assigned duties to perform the emergency act, and whether the employee was acting in the scope of employment just before the diversion. It is the CE's responsibility to obtain a statement from the official superior, showing:

(a) The precise location of the scene of the accident in relation to the industrial premises, and the place where the employee regularly performed assigned duties;

(b) Whether the employee was performing assigned duties immediately preceding the emergency and, if not, this should be fully explained;

(c) A full description of the particular emergency act performed by the employee; and

(d) The extent of the employee's diversion from duty in terms of time and distance.

(2) In disability cases a statement should be obtained from the injured employee setting forth the same information required of the official superior. Statements from co-workers or other witnesses to the injury should also be obtained, when needed to clarify situations where the evidence submitted by the official superior and the injured employee is unclear or in conflict. The parties should set forth the same information required of the official superior and should show how they acquired the information.

b. Personal Acts.

(1) Injuries sometimes occur while the employee is allegedly engaged in a personal act for the employee's comfort, health, convenience, or relaxation. In these cases, it is particularly essential to determine whether the act was one which is regarded as a normal incident of the work experience, or was one which is foreign or extraneous to the work experience, and the extent to which the employee diverted from duty to perform the act. The evidence appearing on Form CA-1 or CA-2 may, in many cases, contain sufficient information to permit a proper determination. This will be particularly so where the diversion is inconsequential or not excessive and the act is one which is well established to be a normal incident of the work experience. Where clarification is needed, the official superior should be asked to submit a statement showing:

(a) The precise location of the scene of the accident in relation to the industrial premises, and the place where the employee regularly performed assigned duties;

(b) Whether the employee was performing assigned duties immediately preceding the personal act and, if not, this should be fully explained;

(c) A description of the personal act in which the employee was engaged;

(d) Whether for this purpose the employee was using the nearest available facilities or those intended for such use; and

(e) The extent of the employee's diversion from duty in terms of time and distance.

(2) In disability cases, a similar statement should be obtained from the injured employee. Statements from co-workers and/or other witnesses to the injury should also be obtained when needed to clarify the extent of the employee's diversion and the nature of the personal act.

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8. Recreation.

a. An employee is considered to be in the performance of duty while engaged in formal recreation and either the employee is paid for participating or the recreational activity is required and prescribed as a part of the employee's training or assigned duties. The CE may approve injuries occurring under these circumstances if the file contains a statement from the official superior showing that:

(1) At the time of the injury, the deceased or injured employee was engaged in a recreational activity organized and directed by the employing establishment and the employee was being paid for participating, or

(2) The activity was required and prescribed as a part of the employee's training or assigned duties.

It is the CE's responsibility to obtain this statement from the official superior.

b. Where injuries are sustained while the employee is engaged in a recreational activity under other circumstances, the determination must be made at an adjudicative level above that of the CE. In these cases, it is necessary to ascertain what benefit, if any, the employer derived from the employee's participation in the activity, the extent to which the employer sponsored or directed the activity, and whether the employee's participation was mandatory or optional. See ECAB decisions in the cases of Donald C. Huebler, 28 ECAB 17, and Stephen H. Greenleigh, 23 ECAB 53. The CE should require the official superior to submit a statement showing:

(1) Whether the employee was required to participate in the activity and, if so, the reason or authority for such requirement should be given or otherwise explained. If the participation was not mandatory, the official superior should explain fully whether participation was optional or what degree of persuasion was used to influence the employee's participation;

(2) What specific benefit the employer derived from the employee's participation in the activity (increasing employee morale is not considered a direct benefit);

(3) Whether other employees were required, persuaded, or permitted to participate in the activity and, if so, this should be explained;

(4) Whether the employee's participation in the activity violated any rules or regulations of the employer and, if so, these should be explained, including discussion of the manner in which the rule or regulation was enforced;

(5) Whether the injury occurred on the employer's premises and during the employee's regular working hours and, if not, this should be explained; and

(6) What leadership, equipment, or facilities the employer provided for the activity.

c. In disability cases, the injured employee should be required to submit a statement showing:

(1) Whether the employer required or persuaded the employee to participate in the activity and, if so, this should be explained;

(2) Whether other employees were required or persuaded to participate in the activity; and

(3) Whether the injury occurred during regular working hours or on the employer's premises and, if not, this should be explained.

d. The need for additional statements from co-workers, witnesses, or other sources will be determined by the circumstances of the case, the discrepancies in the evidence, or other matters requiring clarification.

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9. Idiopathic Falls.

a. The CE should give particular attention to those cases where the injury is due to a fall which may have been caused by a personal and non-occupational pathology, such as a myocardial infarction, fainting spell, or epileptic seizure. Injuries caused by such conditions are excluded from coverage under the FECA unless there is intervention or contribution by some hazard or special condition of the employment, including normal furnishings of an office or other workplace.

b. In such cases it is the CE's responsibility to obtain appropriate evidence from the injured employee, the immediate superior, the witnesses, and the attending physician, showing whether the fall was due to an idiopathic condition or an unknown cause. If the incident was due to an idiopathic condition, the record must also clearly show whether the fall was to the immediate supporting surface (floor) or whether some special condition, hazard, or instrumentality of the work contributed to or intervened as a cause of the injury. If some factor of the employment intervened or contributed to the injury resulting from the fall, the employee has coverage under the FECA for the results of the injury but not for the idiopathic condition which caused the fall.

c. A distinction must be made between idiopathic falls and those falls which are merely unexplained. If a fall is not shown to be caused by an idiopathic condition, it is simply unexplained and is therefore compensable if it occurred in the performance of duty. An idiopathic fall is one where a personal, non-occupational pathology causes an employee to collapse. An unexplained fall is one where the cause is unknown even to the employee.
The ECAB made the distinction between idiopathic and unexplained falls in the following two cases:

(1) Martha G. List, 26 ECAB 200. Employee Joseph G. List's fall at work on December 21, 1972 resulted in his death. There was no evidence that any obstacle or other irregular condition of the workplace caused the fall. The employee had a history of hypertension and episodes of falling but he had not fallen from the end of 1967 until December 21, 1972. An Office medical adviser filed a brief opinion stating that it was "reasonable to assume that the hypertension probably was out of control and that a 'small stroke' occurred on 21 Dec. 72 and was the reason for the fall."

The Board reversed the Office's decision that the employee's injury was caused by an idiopathic fall and neither arose out of nor was causally related to the employment. In support of its finding that the employee's fall was unexplained and his resulting death was compensable, the Board stated:

The question of causal relationship in a case of a fall like that in the present case is a medical one. The only medical evidence in the case record indicating that the employee's fall was idiopathic is the statement of the Office medical adviser. His opinion is speculative and lacking in rationale; it is therefore insufficient to establish that the employee's fall was idiopathic and to prove that it was due to a preexisting physical condition. The 5-year interval between his 1967 fall and the fatal 1972 incident militates against such a conclusion.

(2) Gertrude E. Evans, 26 ECAB 195. Employee Wesley W. Evans' fall at work on May 7, 1973 resulted in his death. There was no indication that anything in the workplace caused him to fall. The employee had a three to five year history of dizziness and fainting spells as well as a series of falls and hospitalizations in the period immediately preceding the May 1973 episode. He had been hospitalized a month before the May 1973 episode, complaining of dizziness and passing out. Although the attending physician could not diagnose the employee's condition, his reports and those of other physicians made it clear that they regarded the May 1973 episode and the previous ones as having as a common cause an abnormal physical condition.

The Board affirmed the Office's finding that the employee's fall was idiopathic in nature but remanded the case for a determination as to whether or not the employee struck an intervening object when he fell on May 7, 1973.

Whether a fall at work is idiopathic or unexplained will usually be determined on the basis of the medical evidence. If the medical evidence shows that the employee's fall was caused by a non-occupational, preexisting physical condition, it is idiopathic and not compensable. Absent such evidence, the fall is unexplained and compensable.

CEs should carefully read the List and Evans decisions, as they illustrate the difference between idiopathic and unexplained falls.

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10. Assault Cases. Where the injury or death is caused by the assault of another person, it is necessary to establish to the extent possible whether the assault was accidental, arose out of an activity directly related to the work or work environment, or arose out of a personal matter having no connection with the employment. In the case of a personal matter, the evidence must show whether it was materially and substantially aggravated by the work association. An assault occurring off the agency's premises and outside of work hours may be compensable if it arose for reasons related to the employment.

a. It is the responsibility of the CE to obtain copies of any police reports which may have been made. Statements should also be obtained from the official superior and co-workers or other witnesses showing:

(1) Whether there was any animosity between the injured or deceased employee and the assailant by reason of a personal association away from work and, if so, this should be explained fully; and

(2) A full description of the events and circumstances which immediately preceded, led up to, and resulted in the assault.

b. A similar statement should be obtained from the assailant, if possible, and in disability cases, from the injured employee.

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11. Horseplay.

a. An employee injured during horseplay is considered to be in the performance of duty if the horseplay was of a character that could reasonably be expected where a group of workers is thrown into personal association for extended periods of time. In such cases, it is important to determine whether the particular activity was one that was a reasonable incident of the employment or was an isolated, unanticipated event which could not reasonably have been expected to result from the workers' close association.

The CE must also consider whether the horseplay may have constituted a prohibited activity; resulted from the employee's intoxication, willful misconduct, or intention to bring about self-injury or injury to another; or occurred while the employee was so removed from assigned duties in point of time or space as to be removed from the course of employment.

b. If there is sufficient evidence to properly find the injury was sustained in the performance of duty, the CE may approve the case. Otherwise, the CE should ask the official superior to submit a statement which includes:

(1) A full description of the particular horseplay in which the employee was engaged when injured, including the precipitating cause and the number of employees involved;

(2) Whether horseplay of this character had been prohibited previously and, if so, full details of the prohibition should be given, showing when and how the employees were notified and what efforts had been made to enforce prohibition;

(3) The precise location where the injury occurred in relation to (a) the industrial premises, and (b) the place the employee regularly performed assigned duties;

(4) Whether the employee was performing assigned duties immediately preceding the horseplay and, if not, this should be explained fully; and

(5) Whether this was a single, isolated act of horseplay or whether this had occurred or prior occasions and, if so, the frequency of such prior occurrences.

c. In disability cases a similar statement should be obtained from the injured employee. Other workers engaged in the horseplay should be asked to submit statements responsive to the same questions. The need for statements from other coworkers or witnesses should be considered if the evidence conflicts or otherwise requires clarification.

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12. Coworker Harassment or Teasing.

a. Harassment or teasing of employees by coworkers is a compensable factor of employment. Employees who are harassed, teased, or called derogatory names by coworkers are considered to be in the performance of duty provided that the reasons for the harassment or teasing are not imported into the employment from the employee's domestic or private life.

The Office had previously taken the position that coworker harassment was a factor of employment only if the employing establishment failed to intervene to moderate or resolve the situation, based on the Board's decision in Joe N. Richards, Docket No. 91-836, issued December 17, 1991. In its remand order the Board stated "if the evidence establishes appellant's supervisor failed to intervene when appellant was harassed by coworkers or, as alleged by appellant, actually instigated such harassment, appellant's emotional reaction to the harassment would arise within the performance of duty." Thus, under the Office's interpretation of Richards, management intervention effectively removed the harassment victim from the performance of duty even if the harassment continued following such intervention.

Board decisions in Gregory J. Meisenberg, Docket No. 92-1098, issued February 24, 1993 (remanded) and David W. Shirey, 42 ECAB 783, issued July 5, 1991 (affirmed because of appellant's inability to prove alleged incidents of harassment actually occurred), were less clear regarding coverage. In both cases the Board stated:

To the extent that disputes and incidents alleged as constituting harassment by coworkers are established as occurring and arising from appellants performance of his regular duties, these could constitute employment factors. (emphasis supplied)

However, in Abe E. Scott, 45 ECAB 164, the Board specifically stated that under a particular fact pattern, coworker harassment is a factor of employment.

b. Another factor to consider in determining the compensability of injuries allegedly due to coworker harassment is the "friction and strain doctrine" (see Larson, The Law of Workmen's Compensation, §11.16[a]) which is followed by the Board. Under this doctrine the fact that employees with their individual characteristics (emotions, temper, etc.) are brought together in the workplace creates situations leading to conflicts which may result in physical or emotional injuries. Because these conflicts have their origin in the employment they arise out of and in the course of employment even though they have no relevance to the employee's tasks. In other words, a conflict between employees involving a nonwork topic may be found to have occurred in the performance of duty because the employment brought the employees together and created the conditions which resulted in the conflict.

However, the "friction and strain doctrine" does not apply to privately motivated quarrels or disputes imported from outside the employment. (see Larson, §11.20).

Although the Board did not use the phrase "imported into the employment" in the case of Sharon R. Bowman, 45 ECAB 187, its decision is based on the same principle. In affirming the Office's decision that appellant had not sustained an emotional condition in the performance of duty the Board found that the gossip of coworkers regarding her ex-husband did not relate to her job duties or requirements and was therefore not compensable.

The Board had previously found in the case of Gracie A. Richardson, 42 ECAB 850, issued August 8, 1991 (footnoted in Bowman) that "Appellants fear of gossip is a personal frustration which is clearly not related to her job duties or requirements and is thus not compensable."

c. If the evidence shows that the alleged incidents of harassment actually occurred, and that they arose out of the employment and did not involve personal matters imported from outside the employment, the CE may find that the employee was in the performance of duty. However, in most cases the initial reports will not provide enough information for the CE to make this determination. Therefore, the CE should develop the evidence by obtaining the following:

(1) A statement from the employee (if a statement has not been submitted or a submitted statement is inadequate) describing in detail the alleged incidents of harassment, the frequency of their occurrence and their effect on the employee;

(2) Statements from coworkers allegedly involved in the harassment describing in detail their version of events;

(3) A statement from the employee's supervisor stating whether he or she was aware of the situation as described by the employee and coworkers, and describing any supervisory action taken; and

(4) Statements from any other persons who may have knowledge of the alleged harassment stating what they know and how they obtained such knowledge.

After all of the pertinent factual information has been obtained, the CE must determine whether the alleged incidents of harassment actually occurred and, if so, whether they arose out of the employment or were provoked by something occurring in the employee's private or domestic life; that is, imported into the employment.

If it is established that the harassment arose out of the employment, the question of whether the employee's claimed physical or mental disability is causally related to the harassment must be determined in accordance with the procedures outlined in Chapter 2-805.

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13. Prohibited Activities.

a. There may be no right to compensation where the injury occurs while the employee is knowingly engaged in an act which has been prohibited by the employer. The test in such a case is whether the injury was caused by the willful misconduct of the employee as outlined in 5 U.S.C. 8102(a)(1) and as covered in paragraph 13 of this chapter. In these cases it is essential to determine whether the employee was fully aware of the prohibition, whether the prohibition was enforced, the extent to which the employee had diverted from assigned duties, and whether the particular act was within the general scope of the assigned duties. It is the responsibility of the CE to obtain a statement from the official superior which:

(1) Identifies the full range of the employee's assigned duties;

(2) Fully describes the prohibited act in which the employee is accused of engaging;

(3) States how, when, and how often the employee or coworkers were informed of the prohibition (copies of the notice should be obtained if it is asserted that written notification of the prohibition had been given); and

(4) Describes the manner in which the prohibition had been enforced and what disciplinary action, if any, had been taken against the employee or co-workers for prior violations.

b. In disability cases the injured employee should be asked to submit a statement which:

(1) Identifies the full range of assigned duties;

(2) Shows whether the claimant was aware that an act prohibited by the employer was being performed and, if so, states how, when, and how often the employee was informed of the rule;

(3) Describes the particular act in which the employee was engaged at the time of the injury and whether, in the employee's opinion, this was within the general scope of the duties;

(4) States whether the employee had previously violated this prohibition and, if so, this should be explained fully, including an opinion as to whether the employee's supervisors were aware of such violations; and

(5) Includes any explanation which the employee believes would justify the violation of the prohibition.

c. Statements should also be obtained from co-workers or other witnesses which:

(1) Describe what they know about the injury, the manner in which it was sustained, and the particular activity in which the employee was engaged at that time, and also how they acquired this knowledge;

(2) State whether they were aware of the prohibition which was allegedly violated and, if so, they should state how, when, the number of times, and the manner in which they were informed of the prohibition; and

(3) Describe the manner in which the prohibition had been enforced and what disciplinary action had been taken against the injured employee for prior violations.

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14. Statutory Exclusions.

a. Willful Misconduct, Intoxication, or Intention to Bring About Injury or Death to Self or Another. Where the questions of "fact of injury" and "performance of duty" are decided affirmatively, consideration must also be given to the question of whether the injury or death was caused by the willful misconduct of the employee, by the employee's intention to bring about the injury or death of self or of another, or if intoxication of the injured employee was the proximate cause of the injury or death (see 5 U.S.C. 8102). The CE has authority to decide these questions when these factors were not the cause of the injury. Otherwise, the CE has no authority to decide these questions adversely to the claim and must not in any way notify or imply to the claimant or the representative that the claim has been or will be denied because of one of these factors.

(1) The claimant enjoys an affirmative defense against these factors. The OWCP must overcome such defense. Adverse decisions must always be made at an adjudicative level above that of the CE.

(2) The official superior's answers to the appropriate items on the Form CA-1, and the particular circumstances of the accident, are the factors which require the CE's attention when considering these questions. In most cases these questions may be determined negatively with ease. In those few cases where it appears that an adverse determination may be indicated or where there is confusion in the facts, it will be the CE's responsibility to obtain all available evidence which may be relevant to the question. Thereafter, the CE should present the case to the next adjudicative level with a written explanation of the factors involved and a reasoned recommendation for approval or disapproval of the claim.

b. Willful Misconduct.

(1) The question of willful misconduct arises where at the time of the injury the employee was violating a safety rule, disobeying other orders of the employer, or violating a law. Safety rules have been promulgated for the protection of the worker--not the employer--and, for this reason, simple negligent disregard of such rules is not enough to deprive a worker or the worker's dependents of any compensation rights. All employees are subject to the orders and directives of their employers in respect to what they may do, how they may do certain things, the place or places where they may work or go, or when they may or shall do certain things. Disobedience of such orders may destroy the right to compensation only if the disobedience is deliberate and intentional as distinguished from careless and heedless. A distinction is also made in respect to orders which relate to the manner in which assigned tasks are to be done, as distinguished from other activities which are merely incidental to the employment. It is necessary, therefore, that the evidence be unusually well developed before any steps are taken to disallow a claim because of willful misconduct.

(2) Violating a Safety Rule.

(a) In these cases the official superior should be required to submit a statement which: identifies the particular safety regulation which was allegedly violated; states how, when, and how often the employee and co-workers were informed of the rule (copies of the notice should be obtained if written notice of the rule was given); and describes the manner in which the rule had been enforced and what disciplinary action was taken against the employee and coworkers for this or prior violations.

(b) In disability cases, a statement from the injured employee should be required which: shows whether the employee was aware of the safety rule which was allegedly violated and, if so, contains information as to how, when, the number of times, and the manner in which the employee was informed of the rule; the reason, if any, for violating the rule; the particular act in which the employee was engaged at the time of the injury and whether, in the employee's opinion, this was a part of assigned duties; whether the employee had previously violated this rule and, if so, a full explanation therefor, including an opinion whether the supervisors were aware of such violations; and any explanation the employee believes would justify the violation of the rule.

(c) Statements should also be obtained from any co-workers or witnesses which show: what they know about the injury, the manner in which it was sustained, the particular activity in which the employee was engaged at that time, and how they acquired this knowledge; whether they were aware of the existence of the safety rule which was allegedly violated and, if so, how, when, the number of times, and the manner in which they were informed of the rule; and the manner in which the rule had been enforced and what disciplinary action, if any, had been taken against them or the injured employee for prior violations.

(3) Disobeying Other Orders of the Employer.

(a) In these cases the official superior should be required to submit a statement which: identifies the particular order which was allegedly disobeyed; gives the reasons the employer found it desirable and necessary to issue this order; states how, when, the number of times, and the manner in which the employee and co-workers were informed of the order (copies of any written orders should be obtained); and describes how the order had been enforced and what disciplinary action was taken against the employee and co-workers for prior instances of disobedience. 2-0804-14 Statutory Exclusions (cont.)

(b) In disability cases, the injured employee should be required to submit a statement showing: the particular person from whom these orders had been received and what supervisory responsibility that person had; how, when, and how often these orders were received; the particular act in which the employee was engaged at the time of the injury, and whether this was a part of the employee's assigned duty; whether the employee had previously disobeyed these or similar orders and, if so, this should be fully explained, including whether the supervisors were aware of such disobedience; and any explanation which the employee believes would justify such disobedience.

(c) Statements should also be obtained from any co-workers or witnesses which show: what they know about the injury; the manner in which it was sustained; the particular activity in which the employee was engaged at that time, and how they acquired this knowledge; whether they were aware of the existence of the particular order which was allegedly violated and, if so, how, when, and how often they were informed of such order; and the manner in which the order had been enforced and what disciplinary action had been taken against them or the injured employee for prior instances of disobedience.

(4) Violation of a Law.

(a) In these cases the official superior should be required to submit a statement citing the particular law which was allegedly violated, stating what legal action was taken by the authorities to prosecute the employee for this violation, and showing the results of such action.

(b) In disability cases, a statement from the injured employee should be requested, describing the particular act in which the employee was engaged at the time of the injury, with an opinion whether this was a part of the employee's assigned duties and any explanation justifying the violation of the law.

c. Intoxication.

(1) Where intoxication may be the proximate cause of the injury, the record must contain all available evidence showing: (a) the extent to which the employee was intoxicated at the time of the injury, and (b) the particular manner in which the intoxication caused the injury. It is not enough merely to show that the employee was intoxicated. It is also the OWCP's burden to show that the intoxication caused the injury. An intoxicant may be alcohol or any other drug.

(2) The official superior should be required to submit a statement which: describes the employee's activities during the several hours immediately preceding the injury, with particular emphasis on the personal conduct, apparent sobriety, and the extent to which the employee appeared to be inebriated or otherwise not in control of all faculties; states whether the employer is aware of the nature and amount of intoxicant consumed by the employee and, if so, supplies full details; states whether the employer believes the employee's intoxication was the proximate cause of the injury with appropriate explanation for such belief; and shows whether immediately prior to or after the injury any tests were made by the police or others to determine the employee's sobriety (the results of any such tests should be requested).

(3) A statement should be obtained from the physician and the hospital where the employee was examined following the injury which describes as fully as possible the extent to which the employee was intoxicated and the manner in which the intoxication was affecting the employee's activities. The results of any tests made by the physician or hospital to determine the extent of intoxication should be obtained.

(4) In disability cases, the injured employee should be requested to submit a statement which: includes a full account of activities during the several hours immediately preceding the injury; states whether any intoxicants were used or consumed during that time and, if so, the precise nature and amount consumed; and states whether or not the employee feels intoxication was the proximate cause of the injury, with appropriate explanation for the belief.

(5) Statements from coworkers or other witnesses should also be obtained which: describe the employee's activities during the several hours immediately preceding the injury with particular emphasis on personal conduct, apparent sobriety, and the extent to which the employee appeared to be inebriated or otherwise not in control of all faculties; states whether they are aware of the nature and amount of intoxicants consumed by the employee and, if so, full details; and states whether they believe the employee's intoxication was the proximate cause of the injury with appropriate explanation for their belief.

d. Employee's Intention to Bring About Injury or Death to Self or Another.

(1) Where it appears the injury or death was caused by the employee's intention to bring about the injury or death of self or another, it is the responsibility of the CE to obtain a statement from any physician or hospital where the employee was examined following the injury, which states whether it appeared the employee was in full possession of all faculties and, if not, a full description of the situation.

(2) The official superior should also be requested to submit a statement which describes the employee's activities during the several hours immediately preceding the injury and states whether it is believed that the injury or death was caused by the employee's intention to bring about injury or death of self or another, with a fully detailed explanation for the belief.

(3) In disability cases, the injured employee should submit a statement which includes a full account of activities during the several hours immediately preceding the injury, and gives a full description of the manner in which the injury occurred, with a definite statement, including explanation, whether the injury was caused by intention to bring about the injury or death of self or another.

(4) Statements from co-workers or other witnesses should also be requested which describe the employee's activities during the several hours immediately preceding the injury, and state whether they believe the injury or death was caused by the employee's intention to bring about the injury or death of self or another, with a fully detailed explanation for their belief. (See paragraph 14 of this chapter for information on suicide cases.)

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15. Suicide. As outlined in paragraph 13 above, section 5 U.S.C. 8102(a)(2) would appear to preclude payment of compensation in all suicide cases. In some such cases, however, compensation can be paid if the job-related injury (or disease) and its consequences directly resulted in the employee's domination by a disturbance of the mind and loss of normal judgment which, in an unbroken chain, result in suicide.

a. Tests. Various tests are applied in different jurisdictions for determining compensability in suicide cases. The different tests are known as: Sponatski's Rule, New York Rule and Chain-of-Causation Test. (For a discussion of these different tests refer to Arthur Larson, The Law of Workmen's Compensation [New York, Matthew Bender, 1979], Volume 1A, Chapter VI, Section 36.) It is OWCP's policy to apply the Chain-of-Causation Test in suicide cases filed under the FECA. All jurisdictions, of course, require that a worker's suicide be caused by some mental derangement arising out of and in the course of the employment to be compensable under workers' compensation law.

b. Chain-of-Causation Test.

(1) For a suicide to be compensable under this test, it is not necessary to establish that the employee's act of suicide occurred immediately or within a short time after the injury, that the suicide was unpremeditated, violent, occurred in a delirium of frenzy, or that the employee was genuinely insane, psychotic, or suffered from physical damage to the brain. Further, whether the employee knew of the purpose and physical consequences of the act of suicide is irrelevant to the question of causation and, therefore, "knowledge-of-the-physical- consequences" is not a factor sufficient to break the chain-of-causation from the injury to the suicide. In discussing the "chain-of-causation" test, Arthur Larson states:

If the sole motivation controlling the will of the employee when he knowingly decides to kill himself is the pain and despair caused by the injury, and if the will itself is deranged and disordered by the consequences of the injury, then it seems wrong to say that this exercise of will is "independent," or that it breaks the chain of causation. Rather, it seems to be in the direct line of causation. [Arthur Larson, The Law of Workmen's Compensation (New York, Matthew Bender, 1979), Volume 1A, Chapter VI, Section 36.30.]

(2) If the injury and its consequences resulted directly in a mental disturbance, or physical condition which produced a compulsion to commit suicide, and disabled the employee from exercising sound discretion or judgment so as to control that compulsion, then the test is satisfied and the suicide is compensable.

c. Development.

(1) It is the CE's responsibility to develop the necessary information to determine whether the "chain-of-causation" test is met if it is asserted, or there is evidence to suggest, that a mental disturbance or physical condition is present and such condition was causally related to the injury or conditions of employment. Statements as to the employee's mental or physical condition prior to the suicide should be requested from the employee's family, supervisor, co-workers, and other associates who might have pertinent knowledge or information concerning the circumstances surrounding and leading to the suicide. Since almost all, if not all, suicides are investigated by local authorities, a copy of the investigation report should be obtained. Copies of any notes or other communication left by the employee should also be obtained.

(2) A rationalized opinion concerning the relationship between the suicide and the employment-related injury should be obtained from the employee's attending physician or second opinion specialist. The physician should be advised of the test to be met for the death to be compensable (that the suicide was a direct result of the employment injury) and should be asked to describe the employee's mental and physical condition prior to the suicide. If a conflict of medical opinion develops in the case, it should be resolved by referral to a psychiatrist or clinical psychologist.

(3) For the suicide to be compensable, the chain of causation from the injury to the suicide must be unbroken. Therefore, if the evidence indicates or suggests the existence of other factors in the employee's life which may break the chain-of-causation (such as personal or family problems, non-employment-related injuries, etc.), the CE must develop such factors to determine what effect, if any, they had in causing the employee to commit suicide, and whether they constitute independent intervening factors sufficient to break the direct chain of causation from the injury to the suicide.

(4) All development efforts in a suicide case must be documented clearly in the case file, and all reasoning behind the recommended decision (be it approval or denial) must be made a part of the record in the form of a Memorandum to the Director.

(5) A decision either accepting or denying a suicide case must be made by the District Director or higher authority.

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16. Representational Functions.

a. In the Civil Service Reform Act of 1978, at 5 U.S.C. 7101, it is held that:

experience in both private and public employment indicated that the statutory protection of the right of employees to organize, bargain collectively, and participate in decisions which affect them--

(A) safeguards the public interest
(B) contributes to the effective conduct of public business, and
(C) facilitates and encourages amicable settlements of disputes between employees and their employers involving conditions of employment.

Thus, the Congress held that certain representational functions performed by employee representatives of exclusive bargaining units benefit both the employee and the agency.

b. OPM defines "representational functions" to mean those authorized activities undertaken by employees on behalf of other employees pursuant to such employees' right to representation under statute, regulation, executive order, or terms of a collective bargaining agreement. It includes activities undertaken by specific, individual designation (such as designation of a representative in a grievance action or an EEO complaint), as well as those activities authorized by a general collective designation such as the designation of a labor organization recognized as exclusive representative under Chapter 71 of Title 5.

c. Official Time. Official time is defined as time granted to an employee by the agency to perform representational functions, when the employee would otherwise have been in duty status, without charge to leave or loss of pay. Official time is considered hours of work and is distinguished from administrative leave. OPM has stated that this may include scheduled overtime or a period of irregular unscheduled overtime, if an event arises which requires representational capacity.

Official time granted to union representatives under section 7131 of 5 U.S.C. Chapter 71 is authorized for an employee acting as an exclusive representative in the negotiation of a collective bargaining agreement, including attendance at impasse proceedings. In addition, certain executive orders and Government-wide regulations require the use of official time for such functions in connection with health and safety matters, agency administrative grievance procedures, prevailing wage-rate appeals and EEO complaints.

Agency regulations and practice, and collective bargaining agreements, may also provide official time for other representational functions.

The Postal Service National Agreement specifies conditions under which a union representative can provide representational service "on the clock."

d. OWCP Policy. Employees performing representational functions which entitle them to official time are in the performance of duty and entitled to all benefits of the Act if injured in the performance of those functions. Activities relating to the internal business of a labor organization, such as soliciting new members or collecting dues, are not included.

e. Case Development. When an employee claims to have been injured while performing representational functions, an inquiry should be made to the official superior to determine whether the employee had been granted "official time" or, in emergency cases, would have been granted official time if there had been time to request it. If so, the claimant should be considered to have been in the performance of duty. This includes Postal Service employees who are "on the clock" while performing representational activities under the National Agreement.

If the agency states that the employee was not performing an activity for which official time is allowed, the Office should issue a letter warning the claimant that the case will be denied unless additional information is provided, and allowing thirty days for a response. If there is no timely response from the claimant, a formal decision should be issued on the ground that the claimant is not in the performance of duty.

If the claimant provides evidence contradicting the agency's position, the official superior should be asked to reply to this evidence, providing documentation in the form of appropriate regulations, executive order or union agreement covering the specific situation. The Office will accept the ruling of the agency as to whether a representative was entitled to official time, unless this ruling is later overturned by a duly authorized appellate body.

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17. Work-Connected Events Which Are Not Factors of Employment.

a. The Cutler Rule. As the ECAB stated in the case of Lillian Cutler, 28 ECAB 125:

Workers' compensation law does not apply to each and every illness that is somehow related to an employee's employment... Where the disability results from his emotional reaction to his regular or specially assigned work duties or to a requirement imposed by the employment, the disability comes within the coverage of the Act.

This concept has come to be known as the Cutler rule.

When an employee experiences emotional stress in carrying out assigned employment duties, or has fear and anxiety regarding his or her ability to carry out these duties, a resulting disability is considered to have "arisen out of and in the course of employment." Similarly covered is a disability arising from a special assignment or requirement imposed by the employing establishment. The assignment need not have been unusually strenuous, as long as the medical evidence shows that it caused the claimed condition. The Board continues:

On the other hand, the disability is not covered where it results from such frustration from not being permitted to work in a particular environment or to hold a particular position.

In Cutler, where the employee became emotionally upset over not receiving an anticipated promotion, the Board held that:

the resulting disability does not have such a relationship to the employee's assigned duties as to be regarded as arising from the employment. The emotional reaction in such circumstances can be truly described as self-generated and as not arising out of and in the course of employment.

"Self-generated" in this context apparently refers to the employee's voluntary application for a higher position, when to seek promotion was not a requirement of the position she already held.

b. Reassignment. The Board has applied the Cutler standard in other cases largely by example, always seeming to distinguish between the performance (or the results) of actual work duties, and dissatisfaction with the structure of the work or position. Thus, under the standard set forth in Cutler, it is clear that reassignment is not a factor of employment: Dario G. Gonzales, 33 ECAB 119; Clair Stokes, Docket No. 82-508, issued May 24, 1982; John A. Snowberger, Docket No. 85-2076, issued January 31, 1986; Robert C. McKenzie, Docket No. 85-532, issued May 10, 1985; Teresa M. Lacona, Docket No. 88-1262, issued May 8, 1989.

However, the case of Brenda Getz, 39 ECAB 245, presents a different situation. Here the employee alleged that she had an emotional reaction to a detail assignment to another city because of the working conditions involved. The Board concluded that the detail assignment constituted specially assigned work duty within the meaning of Cutler and therefore any disability arising out of an emotional reaction to the assignment would be covered.

c. Performance Ratings. The Board remanded the case of Lizzie J. McCray, 36 ECAB 419 listing the dispute over the employee's performance rating as a factor of employment and citing Derderian. But in Arthur F. Hougens, 42 ECAB 455, the Board found that the employee's reaction to his rating on his performance evaluation was not covered under the Act. The Board stated:

In view of the fact that appellant's rating was "satisfactory" and was changed to a higher rating on his appeal, his reaction to it can accurately be described as "self-generated." Appellant has presented no evidence to substantiate his contention that a rating of satisfactory was a "bad rating" and "as low as you can go" at his employing establishment.

Although the Board did not state the distinction between Hougens and Derderian and McCray, the Board finding that Hougens' reaction was self-generated apparently is based on the fact that his performance was evaluated as satisfactory and his mere perception of the rating as a "bad" one was not sufficient for his reaction to be covered under the Act.

This interpretation is reinforced by the Board's decision in Thomas D. McEuen, 41 ECAB 387 and 42 ECAB 566. In McEuen the Board stated:

In this case, the medical evidence establishes more than appellant's feeling of job insecurity: It establishes that appellant's episode of severe depression and impaired functioning was directly precipitated by what appellant regarded as an unsatisfactory performance appraisal. The Board finds that appellant's emotional reaction bears a direct relationship to his regular or specially assigned duties and constitutes an injury in the performance of duty within the meaning of the Act.

The Office petitioned for reconsideration on the ground that the Board's January 10, 1990 decision contained legal and factual errors. The petition stated in part:

In the decision on January 10, 1990, the Board concluded that appellant's depression constituted an emotional condition sustained while in the performance of duty because it was "directly precipitated by what appellant regarded as an unsatisfactory performance appraisal." In so doing, the Board departed from longstanding precedent holding that feelings of job insecurity do not constitute an illness sustained while in the performance of duty. Raymond S. Cordova, 32 ECAB 1005 (1981); Lillian Cutler, 28 ECAB 125 (1976). Rather, the Board concluded that "feelings of job insecurity" may be compensable, depending upon the "source" of those feelings.

In an April 3, 1991 decision granting petition for reconsideration and reaffirming its January 10, 1990 decision, the Board noted:

an unsatisfactory performance rating, without more, is insufficient to provide coverage. Although the rating is generally related to the employment, it is an administrative function of the employer, not a duty of the employee. As was held in Cutler, an emotional reaction under such circumstances would be self-generated. Exceptions will occur, however, in those cases where the evidence discloses error or abuse on the part of the employing establishment. That is what has occurred in this case. An error was committed by the employing establishment that resulted in appellant's emotional reaction. Such a reaction cannot be labeled "self-generated."

In the instant case, appellant felt the employer was out to get his job. He based this "perception" on the fact that, instead of receiving a performance rating when due, the employer deferred it in several particulars for 90 days. He alleged, and the employer conceded, that the proposed performance rating was incorrectly based on standards not derived from his job description and, with these standards removed, his performance was satisfactory. As the Office correctly points out, appellant was never given an 'unsatisfactory' rating. The rating was simply deferred for 90 days. The decision here therefore turns, not on whether the performance rating was unsatisfactory per se, but on the fact the employer took erroneous action that resulted in the employee's emotional condition. Such reaction cannot be deemed self-generated.

The Board has thus made it clear that an unsatisfactory performance ratings, performance assessments and informal discussions of performance, standing alone, are insufficient to provide coverage under the Act. An employee's reaction to an unsatisfactory performance rating, performance assessment or informal discussion of performance, absent any evidence of error or abuse by the employing establishment, is self-generated and therefore not compensable.

d. Fear of Removal. The Board has also distinguished between an employee's reaction to criticism arising from performance of day-to-day duties, or fear of inability to perform, and the fear of losing a job or a particular position, even when a performance evaluation is the sole or principal reason for an employee's actual or possible removal or job change.

In Allen C. Godfrey, 37 ECAB 334, the employee alleged extreme depression due partly to his reaction to a letter received from the employing establishment proposing to remove him from his position for failure to meet certain performance requirements of his job. His performance deficiencies were documented in official performance evaluations. A subsequent letter from an agency official stated he would not sustain the proposal to remove the employee but would assign him to a lower-graded position.

The Board referred to two of its previous decisions where an employee's reaction to a discussion with his supervisor concerning the performance of his work duties, and another employee's emotional reaction to attempting to meet quality and quantity standards for his job, both constituted injury in the performance of duty. In this case, the Board found the facts to lead to the contrary conclusion that, while the employee's disabling reaction had some connection to his employment, it was not a reaction to his day-to-day duties or fear or anxiety concerning his ability to perform his employment duties but to what he perceived as a "sudden loss of his career." The employee's disabling emotional reaction was due to a fear of losing his job and a fear of losing a particular position, which does not constitute a factor of employment.

e. Harassment. Since Stanley Smith, 29 ECAB 652, the Board has consistently held that an employee is not required to show that a supervisor's actions constituted harassment or were improper as long as the employee could show that the disability arose directly from experience of the supervisor's actions and reaction to them, and that the actions themselves were appropriately related to the employee's assigned duties and position. In Lewis Leo Harms, 33 ECAB 897 (902), the Board stated:

Where an employee asserts that emotionally stressful employment situations or conditions, including actions by the employing establishment described by the employee as constituting harassment or discrimination, caused a disabling condition on his part, the issue, generally speaking is not whether in fact there was harassment or discrimination but instead is whether such disabling reaction was precipitated or aggravated by conditions of employment. The Board's function is not to make a finding on the merits of an employee's charges against the employing establishment; its only function is to determine whether or not the medical evidence supports causal relationship between the employment factors alleged and the physical conditions.

Thus, the Board makes no determination of whether harassment occurred and does not require the Office to make factual determinations of whether an employee was the victim of harassment or discrimination. The Board does, however, rely on the findings of agencies or bodies which have the authority, and whose function it is, to decide the validity of an employee's allegations.

In the case of Norman A. Harris, 42 ECAB 923, the employee alleged that he sustained an emotional condition causally related to his federal employment. The employee was terminated by his employing establishment for falsifying his time records. He appealed the termination to the Merit Systems Protection Board (MSPB) and was restored to his position. The MSPB found:

There was no showing that the appellant intentionally misrepresented his hours or deceived the agency by claiming hours that he did not work.... The charges in this case are predicated upon the appellant reporting late on various dates during the period in question. However, I note that the agency presented no evidence from Paramount officials who could verify [whether or not appellant was] at work.

The MSPB reversed the removal action. Based on the MSPB decision the Board found that the employing establishment had terminated the employee without the proper evidence and that this error was sufficient to bring any emotional reaction by the employee to the termination action within the coverage of the Act. The Office was directed to determine whether the employee had established that he sustained an emotional condition causally related to the termination action.

f. Erroneous Administrative Actions. In Robert E. Green, 37 ECAB 145, the employee alleged an emotional condition stemming from charges that he had falsified lodging costs on his travel vouchers and a finding that he had to reimburse the Government $24,423.14. He was removed from his position for falsifying official records for monetary gain and for other unrelated charges. The MSPB found no evidence of willful intent to defraud the agency by submitting false travel vouchers and no evidence that the lodging expenses submitted were false, but sustained the employee's removal on the other charges. Citing 5 U.S.C. 5702, which provides a per diem allowance for Federal government employees traveling on official business away from a designated post of duty, the Board found that the employee's emotional reaction to the denial of the reimbursement of his travel expenses constituted an injury sustained in the performance of duty. The circumstances relating to the travel vouchers were part of the employment and related to the duties the employee was employed to perform. Since the employee had been exonerated of charges that he falsified official records, there was no wrongful misconduct charge which would prevent coverage of his alleged emotional condition under the Act.

In Mary Alice Cannon, claiming as widow of Aubrey B. Cannon, 33 ECAB 1235, the employee received an erroneous personnel action reducing his salary. He suffered cardiac arrest and subsequent total disability leading to his death. Prior to his death the erroneous personnel action was corrected and the employee received a check for the amount by which his salary had been reduced. The claim was denied because the employee's cardiac arrest was not "closely associated with his job duties." The Board found that the employee's cardiac arrest and subsequent disability leading to his demise was an injury sustained in the performance of duty.

The Board noted that Cannon was unlike Cutler because the employee was not aspiring to change his working conditions or status. He was immediately concerned about a direct, unanticipated and erroneous action by the employing establishment affecting the conditions of his employment. His emotional reaction could not be considered self-generated because the action by the employing establishment affected the conditions of his employment; neither could it be considered self-generated because the action by the employing establishment was directed to a particular employee on an official basis, and later found to be erroneous. Therefore, his cardiac arrest and subsequent death constituted an injury within the meaning of the Act.

Where the evidence shows error or abuse by the employing establishment, an employee's reaction cannot be considered self-generated and will come within the coverage of the Act. However, a reversal or modification of a disciplinary or other action taken against an employee does not necessarily establish that the employing agency's actions were in error or abusive. In Nicholas D. Buckley, Docket No. 91-673, issued October 24, 1991 the Board stated:

appellant has submitted medical evidence which attributed the aggravation of his preexisting emotional condition to his termination from the letter carrier position he held at the employing establishment following 60 days of his probationary period. The evidence does not establish, however, that appellant's disability arose within the performance of duty. The record establishes that appellant's separation from the postal service resulted from two letters of warning he received, for failure to obey a direct order and for missing a collection box, and a preventable motor-vehicle accident. Following his separation, appellant filed grievances which resulted in one letter of warning being removed from appellant's record, in order that he could apply for a mailhandler position, and the second letter of warning being reduced to an official discussion, a form of discipline at the employing agency. In taking these administrative actions, appellant has not introduced any evidence which would demonstrate that the employing establishment erred or acted abusively in these matters. There is no evidence of record in this case that the employing establishment did not act reasonably in the administration of these personnel matters. The fact that one disciplinary letter of warning was removed and the second letter of warning was reduced to a discussion does not establish that the disciplinary actions brought against appellant were in error.

g. Personnel Actions. Personnel actions may be canceled or modified through various procedures such as arbitration, grievance, etc., or disputes may be settled without prejudice to the position of any party. Cancellation or modification of personnel actions and settlements of disputes do not, of themselves, establish that the actions were erroneous or unreasonable and therefore constitute factors of the employment. Affirming the Office's decision in William Cook, Docket No. 90-1343, issued November 30, 1990, the Board stated:

appellant attributes his emotional condition to certain events and circumstances that occurred while he was a postal employee. These events and circumstances, although contemporaneous or coincident with appellant's employment, do not constitute factors of employment giving rise to coverage under the Federal Employees' Compensation Act. Appellant primarily complains that he has been the subject of long-standing harassment and discrimination from superiors and fellow employees, and he notes that he has filed complaints with the NLRB and EEOC, and numerous grievances. Yet, the record discloses no finding by the NLRB or EEOC to support appellant's assertions, and it appears that his grievances have yielded nothing more favorable than settlements without prejudice to the position of any party. The evidence does not establish that appellant was in fact the subject of harassment or discrimination.

Requirements imposed by the employment are not limited to assigned duties as such. Other circumstances relating to assigned duties may become part of the employee's employment and be sufficient to bring an injury or illness within the coverage of the Act.

In Pasquale Frisina, 34 ECAB 1230, the employee claimed that his emotional condition resulted from his receipt of an employing establishment letter criticizing his wife for the method of reporting his illness (telephone request to supervisor for sick leave). The employing establishment had procedures for reporting sick leave and returning to work. The employee's method for reporting sick leave had been questioned in the past. Citing 5 CFR 630.101, which charges agency heads with the responsibility for administering sick leave accounts for employees and provides how employees shall apply for sick leave, the Board found that the procedure for reporting sick leave was a requirement imposed by the employment. According to the Board the circumstances leading to the employee's alleged emotional reaction (wife's request on his behalf for sick leave; receipt of employing establishment letter) were part of the employment and related to the duties the employee was employed to perform and to the requirements imposed by the employment.

The Board reached a different conclusion in Joseph C. DeDonato, 39 ECAB 1260. Appellant contended that his emotional disability was caused by several factors including the employing establishment's refusal to grant his application for sick leave. The Board found that all of the factors cited by appellant, including the denial of sick leave, were factors involving personnel matters which did not have such a relationship to his assigned duties so as to be regarded as arising out of and in the course of the employment. The Board distinguished its holding in Frisina by noting that "Frisina addresses the issue of a duty imposed upon the employee by required reporting instead of the issue in the instant case which addresses the administrative denial of leave, and which is purely a personnel matter."

Since both cases involve procedures which employees must follow in order to obtain sick leave, it was unclear why the Board considered the procedural requirements a "duty imposed upon the employee" in Frisina but "purely a personnel matter" in DeDonato (the Board noted in DeDonato that, in response to his written request for sick leave, the employee received an immediate response from the employing establishment instructing him to "comply with employing establishment regulations within five days since his current absence had exceeded three days"). The Office took the position that Frisina stood alone among cases of this type and that all circumstances related to the administration of leave were strictly personnel matters and not factors of the employment.

The Board clarified its position in Anthony A. Zarcone, 44 ECAB 751, finding that employment establishment requirements for the use of sick leave were not compensable factors of employment. In affirming the Office's decision that appellant had not met his burden of proof to establish that he sustained an injury in the performance of duty, the Board discussed its previous decisions in Cutler and Raymond H. Schulz, Jr., 23 ECAB 25. The Board stated:

In the case of Pasquale Frisina, the Board stated that the procedure for reporting sick leave was a requirement imposed by the employment. It found, without explanation, that the circumstances presented were a part of the employment and related to the duties that the claimant was employed to perform and to the requirements imposed by the employment. This holding was not explained in light of the Board's prior decisions in Edgar Lloyd Pake, (33 ECAB 872) which found that the disapproval of a request for sick leave was not a compensable factor arising from the employment. Because there was no explanation of how the requirement related to the duties the claimant was hired to perform, Frisina implies that any "requirement" of employment constitutes a compensable factor of employment. Such a holding is too broad, as the above discussion of Lillian Cutler and Raymond H. Schulz, Jr., demonstrates. Accordingly, the Board expressly overrules Pasquale Frisina to the extent that it is inconsistent with Cutler, Pake and the holding herein. The Board notes that Pasquale Frisina was implicitly overruled in subsequent cases, notably Joseph C. DeDonato and Ralph O. Webster, (38 ECAB 521) which held that emotional conditions resulting from actions taken by the employing establishment in personnel matters such as use of leave are not sustained in the performance of duty.

The Board has thus made clear that requirements for use of sick leave are personnel matters, administrative in nature, and have no relationship to the duties the employee was hired to perform

h. Other Factors. The Board reiterates in its decisions the principles set forth in Cutler distinguishing between injuries or illnesses which have some connection with the employee's employment but do not result from the regular or special duties or a requirement imposed by the employment, and those that do. An employing establishment may take action against or relating to an employee because of something the employee did while on the job, or in connection with the employment, or because of his or her activities as a private citizen, which may result in a claim by the employee or dependents. In such cases the CE must determine whether the employee's actions were related to the assigned duties and the requirements of the employment.

In Walter Asberry, Jr. 36 ECAB 686 (1985), the employee claimed that his emotional disability was the result or being terminated from his employment because of discrimination. The evidence showed that the employee's dismissal was properly based on his willful misconduct and the charges of discrimination were unsupported. The Board found that the employee's emotional upset was self-generated and did not arise out of or in the course of his Federal employment.

In Helen Marrotte, claiming as widow of Walter E. Marrotte, 36 ECAB 670 (1985), the employee accepted stolen military clothing from a co-worker who claimed to have found it in a locker. The employee was found to have had no part in the theft, but he received a written reprimand for having in his possession military clothing not received through regular supply channels. He filed a grievance but died of cardiac arrest before hearing were concluded. The Board found that, regardless of whether the employee knew that the clothing had been stolen, his acceptance of it through other than official channels was unrelated to his regular day-to-day duties, his specifically assigned duties or to a requirement imposed by his employment, and therefore the proceedings instituted against him were not factors of his employment.

In Pauline Phillips 36 ECAB 377 (1984), the employee, a postmaster, signed a petition regarding a community problem, which lead to a complaint filed against her by a local businessman. She received notice from the Postal Service that the complaint would be investigated. She alleged that worry over this caused her to develop an anxiety reaction and congestive heart failure. No investigation was initiated and Postal Service officials assured the employee that no adverse action would be taken against her. In finding that the employee was not entitled to coverage under the Act, the Board noted that her emotional reaction allegedly resulted from a situation which did not involve her ability to perform her day-to-day duties, or a special assignment, or because of a requirement imposed by the employing establishment. The situation arose because she exercised her rights as a private citizen.

The Board noted a similarity to the case of Manuel W. Vetti, 33 ECAB 750 (1982), a postmaster who developed a disabling emotional condition due to his reaction in an investigation involving a sale to the employing establishment of a parcel of land in which he had an interest. The Board found that the fact that the investigation would not have been initiated if Vetti were not a postmaster was "not a sufficient link to employment to consider his emotional reaction to it to have arisen out of the employment."

Ashberry's disability was not compensable because it had its origin in his willful misconduct. Marrotte's failure to conform to official procedures removed him from the coverage of the Act. Phillips' claim stemmed from her actions as a private citizen and the fact that she was the postmaster was insufficient to consider her disability as having arisen out of her employment.

i. Distinguishing Among Factors and Non-Factors of Employment. In George Derderian, 33 ECAB 1910, issued September 16, 1982, the employee alleged numerous causes of his emotional condition, all of which had some connection with his employment but not all of which could be deemed conditions of his employment. In its remand order the Board stated that situations which could be deemed conditions of employment as enunciated in Cutler were the employee's emotional reaction to the circumstances of his performance rating; confrontations with his supervisor involving criticism and other verbal altercations concerning his performance; the employee's assignment to a special project and its subsequent cancellation; legal action taken against the employee by a subordinate for his failure to promote the subordinate; and the employing establishment's failure to arrange for the employee's defense in the ensuing lawsuit causing him to retain private counsel. Factors which were not compensable under Cutler were distress over reduction-in-force and the appeals process which followed; distress over a newly created position and the national advertisement of that position; and distress over the assignment of one of the employee's subordinates as his acting supervisor.

The Board's finding that Derderian's emotional reaction to the circumstances of his performance rating resulted from his employment preceded the Board's clarification of its McEuen decision that an unsatisfactory performance rating, without more, is insufficient to provide coverage. Therefore, Derderian does not apply to claims which involve an emotional reaction to performance evaluations or assessments or to discussions of performance. McEuen is considered to be the definitive opinion with regard to the compensability of performance evaluations, assessments or discussions and is the basis for Office policy that these are not deemed conditions of employment.

j. Developing Factors of Employment. An employee who claims to have had an emotional reaction to conditions of employment must identify those conditions. The CE must carefully develop and analyze the identified employment incidents to determine whether or not they in fact occurred and if they occurred whether they constitute factors of the employment. When an incident or incidents are the alleged cause of disability, the CE must obtain from the claimant, agency personnel and others, such as witnesses to the incident, a statement relating in detail exactly what was said and done. If any of the statements are vague or lacking detail, the responsible person should be requested to submit a supplemental statement clarifying the meaning or correcting the omission.

When all available evidence has been obtained, the CE must prepare an objective and neutral account of the facts (Statement of Accepted Facts, or SOAF). Where the evidence is in conflict, the CE must decide which is the best supported and most likely version. The CE must distinguish in the SOAF between those activities and circumstances which are factors of employment and those which are not (see PM Chapter 2-809.13c). The evaluating physician will be required to give a rationalized opinion specifying which activities and circumstances, as set forth in the statement of accepted facts, caused or contributed to the condition found on examination.

The determining factor in the types of cases discussed in this section is whether the alleged disability resulted from an incident or incidents which are sufficiently connected to the employment to be considered factors of the employment. To make this determination, the CE must fully develop the circumstances of the alleged injury as well as the employee's duties and working conditions. This will include not only those duties specifically defined (official position description) but also implied (not specifically defined but expected by the employing establishment), if any. Where a claim is filed because of an incident which appears to have no direct relationship to an employee's regular or specially assigned duties, the CE must decide whether a requirement imposed by the employment was involved that, under the circumstances, would be considered part of the employment.

Claims filed for injury or illness allegedly due to employing establishment actions against or relating to an employee solely because of willful misconduct, failure to conform to or violation of official agency procedures, or an employee's actions as a private citizen, do not have the coverage of the Act because the injury or illness does not result from the employee's regular or special duties or a requirement imposed by the employment. These situations are not the result of work performance, but of a type of behavior which removes the employee from the performance of duty. Claims filed for emotional reactions to personnel actions such as performance evaluations and administration of leave also do not have the coverage of the Act. Where the evidence, after proper development, shows the existence of any of the described situations, and requirements for time, civil employee and fact of injury have been met, the claim will be denied for failure to meet the performance of duty requirement.

CEs must become familiar with significant Board decisions in this area and apply the established precedents to new cases. In addition to the cases cited above, CEs should note Carol Medlinger, 29 ECAB 168, and Kenneth Vreeland, 12 ECAB 281.

k. Rescission. In some claims, factors which were originally accepted as work-related would no longer be considered so in light of the ECAB decisions quoted above. Therefore, it may sometimes be necessary to rescind a claim where the acceptance was based on factors which are no longer considered to fall within performance of duty. Decisions to rescind acceptance of a claim will be made only by journey-level CEs and above.

The Board has upheld the Office's authority to reopen a claim at any time on its own motion under section 8128(a) of the Act and, where supported by the evidence, set aside or modify a prior decision and issue a new decision. (Eli Jacobs, 32 ECAB 1147). To justify rescission of acceptance, the Office must establish that its prior acceptance was erroneous based on a new or different evidence or through new legal argument and/or rationale as was done in the case of Curtis Hall, Docket No. 92-683, issued January 11, 1994.

In that case, appellant claimed an employment-related disabling emotional condition which he attributed to a confrontation with a coworker who objected to his bible reading during work breaks. He also alleged a previous incident when a toxic substance had been placed in his chair causing contact dermatitis, diabetes mellitus and hypertension. The Office accepted appellant's claim for a depressive reaction based solely upon medical opinion evidence without determining whether his allegations were supported by the factual evidence of record.

After appellant's claim was accepted, the employing establishment physician submitted a report to the Office which stated that appellant had sat on his own super glue pen container, which was not issued and used in his job, and that the incident would not cause hypertension or diabetes mellitus. On further review, the Office found that appellant's emotional condition did not arise out of factors of his federal employment, and that the medical opinion evidence on causal relationship was unrationalized.

An office hearing representative found that the alleged incidents of confrontation and placement of super glue on appellant's chair were not established as factual; that the medical reports of appellant's attending physician were based on an inaccurate history and therefore of little probative value; and that the reports of the physicians of record did not find appellant disabled for his position.

The Board found that the Office met its burden of proof to rescind its acceptance of this claim based on new medical evidence and the provision of new legal rationale that the implicated work related incidents were not established as factual.

When it has been determined that only correct and proper application of personnel and administrative matters were involved in a case accepted for emotional disability, the acceptance may be rescinded based on new legal argument that no employment factors were involved, without the need for new evidence. In those cases the CE will prepare a Memorandum to the Director which will include:

(1) A summary of the development and adjudication of the claim, noting that the Office had not previously considered whether the employment circumstances which caused the claimant's emotional reaction were factors of the employment.

(2) A description of the employment circumstances which caused the claimant's emotional reaction with an explanation of why they do not constitute employment factors, citing pertinent Board decisions.

(3) A recommendation to rescind acceptance of the claim based on new legal argument that, since the circumstances to which the claimant attributes emotional problems do not constitute factors of employment, disability did not arise out of the employment or in the performance of duty, and the employee has not sustained an injury within the meaning of the Act.

If the claimant does not respond to the pre-termination notice, or if the claimant's response is not sufficient to change the Office's position or to require further development of the record by the Office, a formal decision will be issued rescinding acceptance of the claim and terminating benefits on the ground that acceptance of the claim was incorrect because the circumstances to which the claimant attributes his or her emotional disability are not factors of the employment within the meaning of the Act and the claimant's disability did not arise out of in the course of his or her employment and he or she was not injured in the performance of duty.

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18. Employing Agency Physical Fitness Programs. A number of employing agencies have instituted structured Physical Fitness Programs (PFPs), which typically include agency-appointed fitness coordinators, physical assessment tests and structured exercise while off duty. If the employee's position requires that a certain level of fitness be maintained, work time may be allocated for exercise. Employees enrolled in PFPs maintain logs of their program exercises and report to fitness coordinators, who have been trained by the agency to monitor progress and to give advice on matters related to physical fitness. Considering the degree of agency management, support and encouragement of PFPs, and the expressed benefits to the government anticipated from employee participation, employees enrolled in a PFP are in the performance of duty for FECA purposes while doing authorized PFP exercise, including off-duty exercises performed under the auspices of the fitness program.

a. Injuries and occupational diseases arising from participation in an employing agency's PFP are compensable under the FECA. Participation will not always occur during regular work hours, and not always on the employing establishment's premises.

b. Employees who are injured while exercising or participating in a recreational activity during authorized lunch or break periods in a designated area of the employing establishment premises have the coverage of the Act whether or not the exercise or recreation was part of a structured PFP. Injuries which occur during the use of fitness and recreational facilities furnished by the employing establishment outside of official work hours, on or off the premises, are not compensable if the employee was not participating in a structured PFP. The mere fact that the employing establishment allows employees to use its facilities on their own time does not create a sufficient connection to the employment to bring any resulting injury within the coverage of the Act.

c. All Forms CA-1 which attribute an injury to PFP activity must be accompanied by a statement from the employee's supervisor indicating that the employee was enrolled in the PFP, and that the injury was sustained while the employee was performing authorized exercises under the program. An assessment test provided as a part of the program or in a related screening process is considered a program-authorized exercise. The employee's supervisor must verify that the facts are as described on Form CA-1. If the statement from the supervisor is not submitted with Form CA-1 it must be requested. The supervisor must obtain this information from the fitness coordinator.

d. Where a Form CA-2 is filed claiming that an occupational disease is causally related to the PFP participation, the employee is required to state specifically what activities caused the condition. A statement must be obtained from the supervisor showing what exercises were approved to ensure that the activities performed were authorized under the program.

e. All employees in a PFP must receive medical clearance to participate. CEs must request a copy of the medical examination report in every case.

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19. Deleterious Effects of Medical Services Furnished by the Employing Establishment. Public Law No. 79-658, approved August 8, 1946, authorized Federal agencies and government-owned and controlled corporations to establish, by contract or otherwise, health service programs to provide health services for employees under their respective jurisdictions. These services are limited to (1) treatments on-the-job illness and dental conditions requiring emergency attention; (2) pre-employment and other examinations; (3) referral of employees to private physicians and dentists; and (4) preventive programs relating to health.

a. An employee who participates voluntarily in the health service program is considered in the performance of duty on those occasions when such participation causes absence from regular duties for the specific purpose of obtaining the medical service offered by the employer. Deleterious effects such as injury while undergoing periodic medical examination, reaction to agency-sponsored inoculation, or disease contracted from instrumentation are compensable.

b. Coverage for the deleterious effects of employer provided medical services is limited to employees who are voluntary participants in the employer's sponsored health service program and, only for the effects of treatment for on-the-job illness and dental conditions requiring emergency attention. Coverage for deleterious effects does not extend beyond the immediate service contemplated by P.L.-658; therefore it does not follow the employee who is referred for, or obtains, outside medical services.

c. The medical procedures involved in a pre-employment medical examination come within the rule for coverage provided the person has already been appointed or hired when the examination is performed. A prospective employee is not covered for compensation benefits.

d. Deleterious effects of medical services may be unavoidable or may occur because of error or agency failure to report examination results to the employee or to the employee's physician in time to alter the course of a disease. They may also result from an act such as inadvertently administering the wrong drug, or failure to inform an employee of positive test results.

e. Following appropriate development, all cases of this type should be referred to a District Medical Adviser for an opinion on whether the condition claimed was causally related to the agency medical service or was adversely affected by the failure to promptly alert the employee or the employee's physician.

f. This matter was initially addressed in FECA Program Memorandum No. 42 dated March 3, 1966 and was supplemented by Program Memorandum No. 186 dated December 23, 1974 which the Office interpreted as expanding coverage from on-the-job illness and dental conditions requiring emergency attention to any medical treatment given by the employing establishment for a non-employment related condition. The Employee's Compensation Appeals Board criticized this interpretation in Beverly Sweeney, 37 ECAB 651, noting that it exceeded "any authority given under the Act or any other statute as regulations." The Board also stated that "Neither the Office nor the Board has the authority to enlarge the terms of the Act nor to make an award of benefits under any terms other than those specified by law." The Office's interpretation was also contrary to previous Board decisions, several of which were cited in Sweeney.
The procedures set forth in this section conform to the Board's decision in Sweeney.

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Chapter 2-0805, Causal Relationship

Paragraph and Subject

Date

Trans. No.

Table of Contents

01/13

13-05

1. Purpose and Scope

01/13

13-05

2. Types of Causal Relationship

01/13

13-05

3. Evidence Needed

01/13

13-05

4. Evaluating Medical Opinions

01/13

13-05

5. Obtaining Additional Medical Opinion

01/13

13-05

6. High-Risk Employment

01/13

13-05

7. Consequential and Intervening Injuries

01/13

13-05

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1. Purpose and Scope. This chapter contains guidelines for determining the question of causal relationship as it relates to both traumatic injury and occupational illness claims. It discusses causal relationship as one of the five basic components for acceptance of an initial claim and also discusses the information necessary to establish causal relationship for claimed consequential conditions later in the life of a case.

The CE should refer to the FECA PM Chapter 2-0800 (Initial Development of Claims) for specific information regarding how to properly develop claims.

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2. Types of Causal Relationship. An injury or disease may be related to employment factors in any of four ways, as follows:

a. Direct Causation. This type of relationship is demonstrated when the injury or factors of employment, through a natural and unbroken sequence, result in the condition claimed. A fractured arm sustained in a fall would be considered a direct result of the fall, and a sensorineural hearing loss might likewise be caused directly by occupational noise exposure over a period of time.

In occupational disease claims, however, the medical evidence needed to support the relationship will likely require greater rationale than in traumatic injury claims. The phrase "proximately caused" is also used to designate this kind of relationship.

b. Aggravation. This kind of relationship occurs if a pre-existing condition is worsened, either temporarily or permanently, by an injury arising in the course of employment. For instance, a traumatic back injury may aggravate a claimant's pre-existing degenerative disc disease, and compensation would be payable for the duration of the aggravation as medically determined. An aggravation must be diagnosed by a physician to be compensable.

A claim may be accepted for a lesser established diagnosis if the aggravation issue requires further development. For example, if a physician diagnoses degenerative arthritis of the right knee and a right knee strain as causally related to a traumatic injury, but does not address aggravation, the CE may accept the right knee strain and concurrently develop the claim to determine whether the arthritis was aggravated by the injury.

If the medical evidence establishes an aggravation of a condition as causally related to a work injury, but the evidence is unclear as to whether the aggravation is temporary or permanent, the case may be accepted for a temporary aggravation and concurrently developed to determine the nature and extent of the aggravation.

(1) Temporary aggravation involves a limited period of medical treatment and/or disability, after which the employee returns to his or her previous physical status (i.e. baseline). Compensation is payable only for the period of aggravation established by the weight of the medical evidence, and not for any disability caused by the underlying disease. This is true even if the claimant cannot return to the job held at time of injury because the pre-existing condition will worsen if he or she does so (see James L. Hearn, 29 ECAB 278).

If the medical evidence establishes that a temporary aggravation has ceased at the time of acceptance, the acceptance letter should note the end date of the accepted temporary aggravation. The specific dates of the temporary aggravation or the date the temporary aggravation ceased should also be included in any Statement of Accepted Facts (SOAF) that is prepared.

(2) Permanent aggravation occurs when a condition will persist indefinitely due to the effects of the work-related injury or when a condition is materially worsened such that it will not revert to its previous level of severity. For instance, an allergy in a severely asthmatic employee which would have persisted in any event may be permanently aggravated by exposure to construction dust and fumes in the workplace such that subsequent episodes are more severe than they otherwise would have been.

A case should be accepted for permanent aggravation only after careful evaluation of all medical evidence of record. The CE should usually refer the claimant for a second opinion examination (depending upon the complexity of the claimed condition and the medical rationale in the file) before accepting the claim for a permanent aggravation.

c. Acceleration. A work-related injury or condition may hasten the development of an underlying condition, and acceleration is said to occur when the ordinary course of the disease does not account for the speed with which a condition develops. For example, a claimant's knee arthritis may have been accelerated by activities such as continuous walking, stooping and squatting in his/her job over a 15 year career that involved these activities for a majority of each day. An acceptance for acceleration of a condition carries the same force as an acceptance for direct causation. That is, the condition has been accepted with no set limitation on its duration or severity.

d. Precipitation. A latent condition which would not have become manifest but for the employment is said to have been precipitated by factors of the employment. For instance, tuberculosis may be latent for a number of years, and then become manifest due to renewed exposure in the workplace. The claim would be accepted for precipitation, but the acceptance would be limited to the period of work-related tuberculosis and OWCP's responsibility for the condition would cease once the person recovered.

Any ensuing episode of the disease would be considered work-related only if medical evidence supported such a continued relationship. In this way acceptance for precipitation may resemble acceptance for temporary aggravation. A claim can also be accepted for precipitation of a condition with no limit on the duration of the acceptance.

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3. Evidence Needed. The question of causal relationship is a medical issue which usually requires reasoned medical opinion for resolution. This evidence should be obtained from a physician who has examined or treated the claimant for the condition for which compensation is claimed.

a. Physicians Qualified to Provide Opinions. As defined by 5 U.S.C. 8101 (2), the term "physician" includes surgeons, osteopathic practitioners, podiatrists, dentists, clinical psychologists, optometrists and chiropractors within the scope of their practice as defined by state law. Registered nurses (RNs), licensed practical nurses (LPNs), physician assistants, nurse practitioners, certified nursing assistants, social workers and physical therapists are not physicians under the Act and, therefore, are not qualified to provide medical opinion to establish causal relationship.

(1) A report of a physician assistant or a certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.

(2) A clinical psychologist may serve as a treating physician for a work-related emotional condition. See 20 C.F.R. 10.312.

(3) A chiropractor's opinion constitutes medical evidence only if a diagnosis of subluxation of the spine is made and supported by x-rays (Loras C. Digmann, 34 ECAB 1049). See 20 C.F.R. 10.311.

b. Sources of Medical Evidence. A medical report from the claimant's physician is required to consider the issue of causal relationship, though in some instances OWCP may refer the claimant for a second opinion examination (e.g. hearing loss claims). This report should include the physician's diagnosis of the condition found, the objective examination findings that establish that diagnosis, and opinion concerning the relationship, if any, between the condition and the injury or factors of employment claimed. The opinion may appear on a Form CA-16, Form CA-20, Form CA-5 or 5b (death claims), or in other medical forms or narrative reports.

c. When No Medical Report is Required. If all of the following criteria are satisfied, a claim may be accepted without a medical report:

(1) The condition reported is a minor one which can be identified on visual inspection by a lay person (e.g., burn, laceration, insect sting or animal bite);

(2) The injury was witnessed or reported promptly, and no dispute exists as to the fact of injury; and

(3) No time was lost from work due to disability.

d. When Medical Opinion is Required. If the circumstances noted above in 3c do not apply, the CE should determine whether a medical report addressing causal relationship is contained in the file. If no such report is present, the CE should request it from the claimant.

(1) In clear-cut traumatic injury claims, where the fact of injury is established and is clearly competent to cause the condition described (for instance, a worker falls from a scaffold and breaks an arm), a fully rationalized medical opinion is not needed. The physician's diagnosis and an affirmative statement are sufficient to accept the claim.

(2) In all other traumatic injury claims, and in occupational illness claims, rationalized medical opinion supporting causal relationship is required.

(3) Certain cases require directed development and specialized medical opinions.

(a) Claims for hearing loss require an opinion from a Board-certified specialist in otolaryngology. See PM 3-600.

(b) Claims for pulmonary conditions (e.g., exposure to asbestos) require an opinion from a Board-certified pulmonary specialist prior to acceptance. See PM 3-600.

(c) A claim for an emotional condition must be supported by an opinion from a psychiatrist or clinical psychologist before the condition can be accepted. Because clinical psychologists are not licensed to treat physical disorders or prescribe medication, an opinion from a psychiatrist must be obtained where a non-mental component is present, a functional overlay is implicated, and/or medication is used. See PM 2-800-9.

e. Evidence Needed if an Underlying Condition Exists. In any case where a pre-existing condition involving the same part of the body is present and the issue of causal relationship therefore involves aggravation, acceleration or precipitation, the physician must provide rationalized medical opinion which differentiates between the effects of the work-related injury or disease and the pre-existing condition. Such evidence will permit the proper kind of acceptance (e.g., temporary vs. permanent aggravation).

Depending on the circumstances of the case, the CE may request the following:

(1) From the claimant:

(a) Full details of the pre-existing condition, including the approximate date it first appeared, the names and addresses of all physicians who examined or treated the claimant for this condition, and the approximate dates of such examinations and treatment.

(b) Reports from all physicians who examined or treated the claimant for the pre-existing condition, including surgical and hospital records.

(2) From the employing agency:

(a) A copy of the pre-employment physical examination, if one was performed.

(b) Copies of any other pertinent medical records maintained by the employing agency.

(c) A statement from the claimant's immediate superior describing the nature of any complaints made by the claimant, and any disability the claimant may have from performing his or her duties because of this condition.

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4. Evaluating Medical Opinions.

a. Determining Causal Relationship. The degree of difficulty in determining causal relationship depends mainly on:

(1) The precise employment factors accepted as occurring within the performance of duty or the nature of the injury which is implicated;

(2) The nature of the disability or the cause of death for which compensation is claimed;

(3) The time which elapsed between the injury and the onset of the condition causing disability or death; and

(4) The employee's medical history.

b. When no opinion regarding causal relationship is provided by the attending physician, the claim generally can be denied provided appropriate development has been completed. Exceptions to this rule are where no medical opinion or medical report is required (see paragraph 3c above).

c. When the attending physician negates causal relationship between the condition and the employment factors, and no medical evidence to the contrary appears in the file, the case may be disallowed, provided appropriate development has been completed. No other medical opinion is required to support the denial.

d. The influence of the factors noted in 4a is shown by the following examples:

(1) An employee is hit by a truck while in the performance of duty and is immediately taken to a hospital, where a fracture of the right femur is found. It is clear that the fracture was caused by the truck accident, and the report from the attending physician supporting causal relationship would need no elaborate medical rationale.

Ninety days after the injury, symptoms of thrombophlebitis appear in the right leg and compensation is claimed for this condition. The passage of this amount of time between the injury and the development of the thrombophlebitis would create uncertainties regarding causal relationship. The report from the attending physician would need to include medical rationale to justify an opinion in support of causal relationship.

Six months later, the employee suffers a stroke while sitting quietly in an easy chair at home. The employee claims additional benefits for the stroke, alleging it was caused by the original injury of being struck by a truck. Two reasons now exist for questioning causal relationship: (a) nine months elapsed between the injury and the stroke, and (b) the original injury involved the leg, whereas the stroke may have resulted from a blood clot implicating the thrombophlebitis. Or the stroke may have resulted from a lesion in the brain, and no apparent physiological connection exists between the two. Any medical opinion in support of causal relationship would have to be based on a complete factual and medical background and justified by detailed medical rationale within a reasonable degree of medical certainty. Otherwise, the claimant's burden of proof would likely not be met.

(2) A nurse becomes disabled by pulmonary tuberculosis after a year of continuous employment on a ward where active tuberculosis patients were housed. If all other factors were negative, any medical opinion supporting causal relationship would require little or no rationale, as it would be apparent that the most probable source of the infection was in the employment.

If, however, investigation had revealed that the employee lived with a spouse in whom an advanced case of active pulmonary tuberculosis had been discovered 60 days before, two probable sources of the infection exist: the hospital where the employee was exposed for 40 hours per week in an atmosphere where the hazard was known and appropriate precautions were taken; and the home, where the hazard was unknown and no precautions were taken and where the contact was much more intimate and far exceeded 40 hours per week.

Under these circumstances, it would be more difficult to find that the employment was a proximate cause of the disease and any medical opinion in support of causal relationship would require a full description of the medical reasons justifying such an opinion.

Another variation involves the supposition of massive exposure at work and no exposure in private life, but with a positive skin test for tuberculosis prior to Federal employment. The major question then would be whether the current illness is a new disease process or a reactivation of an old one. This issue would require careful consideration, and any opinion which did not discuss all relevant factors and contain detailed rationale would not be sufficient to serve as the basis for acceptance.

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5. Obtaining Additional Medical Opinion. If the CE determines that additional medical opinion is necessary, he/she may request an additional report from the claimant's physician or seek a second opinion. This may occur if medical evidence exists in the case file which indicates there is a causal relationship between the condition and employment factors, but the opinion is not fully rationalized. This, however, does not mean that the Office must accept a claim or that it must directly obtain further evidence.

a. Attending Physician. A list of questions may be sent to the attending physician, and a SOAF may be provided as the background for the case, if needed, based on the complexity of the case. See FECA PM 2-0809 for further discussion of SOAFs.

b. Second Opinion Specialist. In cases that cannot be adjudicated on the basis of the opinion provided by the claimant's physician, a SOAF should be prepared and an opinion should be requested from a physician who specializes in the pertinent field of medicine that pertains to the condition being claimed. FECA PM 3-0500.3 discusses such referrals. Also, see paragraph 3d(3) above and 5 U.S.C. 8123(a).

c. Referee Specialist. A conflict of medical opinion may be created when opinions of the attending physician and the second opinion are of approximately equal weight. When this occurs, the entire case file should be referred to a board-certified specialist in the pertinent field of medicine that is appropriate for the issue in conflict. FECA PM 3-0500.4 addresses these referrals. See also 5 U.S.C. 8123 (a).

d. Questions to the Physician. Questions should be as precise as possible, and they should be tailored to the particular circumstances of the case and the particular issue at hand. The CE should ask case-specific questions and avoid asking general questions, those which can be interpreted in more than one way, and those which suggest a certain answer. For instance, the question, "If there was an aggravation, was it temporary or permanent?" is preferable to, "When did the temporary aggravation cease?"

To prevent unnecessary delays in adjudication, the CE should identify and address all medical issues which need resolution before requesting the additional opinion. For example, if acceptance of causal relationship will entail a further decision about the extent of disability, the claimant's fitness for duty, or the appropriateness of medical care, these issues should be formulated in precise questions to the physician. However, the CE should avoid asking questions unnecessary to the issue at hand. For instance, any questions regarding any related permanent partial impairment would be premature if causal relationship had yet to be established.

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6. High-Risk Employment. Certain kinds of employment routinely present situations which may lead to infection by contact with animals, human blood, bodily secretions, and other substances. Conditions such as HIV infection and hepatitis B more commonly represent a work hazard in health care facilities, correctional institutions, and drug treatment centers, among others, than in Federal workplaces as a whole. Likewise, claims for brucellosis, anthrax, and similar diseases will most often arise among veterinarians and others who regularly work with livestock.

Establishing causal relationship in these types of complex cases usually requires an in-depth discussion of causal relationship by an appropriate specialist (whether it is the claimant's physician or a second opinion specialist). When writing to a specialist, the CE should include a SOAF to provide a complete and accurate factual background for the specialist to render his/her opinion.

The CE can accept the claim for a physical injury where one exists while developing the claim for a more serious condition (e.g., a puncture wound may be accepted while any claimed hepatitis is developed).

Note: OWCP does not authorize payment for preventive measures such as vaccines and inoculations, and in general, preventive treatment may be a responsibility of the employing agency under the provisions of 5 U.S.C. 7901; however, OWCP can authorize treatment in specific circumstances. See 20 C.F.R. § 10.313.

a. Physical Injury and Prophylactic Treatment. For claims based on transmission of a communicable disease where the means of transmission and the incubation period are medically feasible, the CE should do the following:

(1) If the source of infection is a known or probable carrier of the disease, the CE should accept the case for the physical injury involved and authorize prophylactic treatment (see FECA PM 3-0400).

(2) If the source of infection is unidentified or the source's status is unknown, the CE should accept the claim for the physical injury involved. Prophylactic treatment for the underlying disease will not be an issue, since a known carrier is not involved.

b. Testing for Presence of Disease. Incubation periods often last for several weeks or months (e.g., it is around 120 days for hepatitis B). Therefore, testing for the presence of the disease following a specific, known exposure may be delayed. Employees in occupations with high risks of exposure to specific diseases are often tested for these diseases at fixed intervals (e.g., a phlebotomist may be tested every three months for HIV infection). If the test results are positive, the CE may accept the case if:

(1) A known carrier is involved, and the claimant had neither a prior history of the disease nor exposure outside of employment; or

(2) A prior test was negative and a physical injury (such as a sexual assault) has been accepted, even if a known carrier is not involved, if the claimant's occupation puts him or her at continuous risk for contracting the disease in question and factors unrelated to work have not been identified as a source of infection. If such factors are present, the CE must carefully consider the medical probability of infection both outside and within the sphere of employment, as well as the incubation period of the disease.

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7. Consequential and Intervening Injuries. After the original acceptance of a claim, an injury occurring outside the performance of duty may affect the compensability of an existing accepted injury.

a. Consequential Injury. This kind of injury occurs because of weakness or impairment caused by a work-related injury, and it may affect the same part of the body as the original injury or a different area altogether. For instance, a claimant with an accepted knee injury may fall at home because the weakened knee buckled. This incident will constitute a consequential injury whether the affected part of the body is the knee or some other area, such as the back or arm. Or, a claimant with an injured eye may compensate for loss of functioning by overuse of the other eye, which may result in a consequential injury.

ECAB has held that, when the primary injury is shown to have arisen in performance of duty, every natural consequence that flows from the injury is deemed to arise out of the employment, unless it is the result of an independent intervening cause which is attributable to the employee's own intentional conduct. The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. Sandra Dixon-Mills, 44 ECAB 882 (1993).

If such an injury is claimed, the CE should:

(1) Ask the claimant to provide a factual statement. Depending on the circumstances of the case, this statement should include the following:

(a) Why he/she believes the claimed consequential condition (and resulting disability, if any) is related to the already accepted work-related conditions.

(b) A detailed factual statement describing the claimed consequential condition from the date of last medical care through the present, including a description of whether symptoms were occasional or constant, and what made any symptoms worse or better.

(c) A description of the medical care received, and all periods of disability from work, from the date he/she returned to work.

(d) A description of the claimant's work activities since returning to work.

(e) A statement regarding whether the claimant has sustained any other injuries/illnesses, either on or off the job, since the original injury/illness.

(f) A description of any hobbies or activities, such as sports, volunteering, or another job, which may have affected the accepted work-related conditions and serve as an independent intervening cause that would break the chain of causation.

(2) Ask the claimant to furnish medical evidence. Though the request will vary depending on the circumstances in the case, this request should typically include the following:

(a) Copies of all medical records for the work-related condition from the date of discharge or date of last medical care through the present, including office visit notes, treatment notes, diagnostic test results, etc., if these are not already on file and/or a significant period of time has passed since receipt of any medical evidence.

(b) A comprehensive medical report from the claimant's physician that addresses the following:

(1) A description of the original mechanism of injury/work exposure and summary of the medical care received.

(2) A description of the current symptoms.

(3) Current objective findings upon examination.

(4) Results of all current diagnostic studies.

(5) Current diagnosis.

(6) The physician's opinion supported by a medical explanation as to the relationship between the accepted work-related condition(s) and the claimed consequential condition, if any.

(7) If disability is claimed as result of the consequential condition, a description of the work duties that the claimant cannot perform and the objective medical findings that form the basis of renewed disability for work.

(8) The recommended course of treatment.

(3) The CE should allow a reasonable time period for submission of the evidence (usually 30 days). After the time period has passed, the CE should adjudicate the claim for a consequential condition, and issue an acceptance letter or formal denial with appeal rights.

The CE may also seek further clarification from the claimant's physician if needed, or refer the case for review by the District Medical Advisor or to a second opinion examiner, prior to adjudicating the claim for a consequential condition.

b. Intervening Injury. An injury occurring outside the performance of duty to the same part of the body originally injured is referred to as an intervening injury if compensation is claimed subsequent to the second injury. In this case the CE must determine whether the disability is due to the second injury alone, or whether the effects of the first injury still contribute to the disability. Unless the second injury breaks the chain of causation between the original injury and the disability claimed, the disability will be considered related to the original incident.

For instance, if the claimant is recovering from rotator cuff surgery and slips on ice leaving the house and lands on the same shoulder and reinjures it, this would be considered an intervening injury. But since the claimant had not fully recovered from the approved shoulder surgery, the effects of the original shoulder injury and subsequent surgery would still be contributing to the disability, therefore the chain of causation was not completely broken.

(1) When an intervening injury has occurred and a subsequent period of disability has been claimed, the CE should obtain the following information from the claimant to resolve the issue of causal relationship:

(a) A statement giving full details of the second incident.

(b) Copies of all medical reports pertaining to treatment of this injury.

(c) A medical report containing a reasoned opinion concerning the relationship between the disability currently claimed and both the original injury and the intervening injury.

(d) Other information as described above for consequential injuries may also be requested, as needed.

(2) As with consequential injuries, additional medical development may be necessary to confirm or deny the alleged causal relationship.

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Chapter 2-0806, Initial Acceptances

Paragraph and Subject

Date

Trans. No.

Table of Contents

6/11

11-04

1. Purpose and Scope

6/11

11-04

2. Accepting the Claim

6/11

11-04

3. Disability Management Upon Acceptance

6/11

11-04

4. Multiple Medical Conditions

6/11

11-04

5. Resolved Conditions

6/11

11-04

6. Accepting and Simultaneously Closing a Case

6/11

11-04

7. Addressing Employing Agency Challenges/Controversions

6/11

11-04

8. Aggravation of a Medical Condition

6/11

11-04

9. Risk of Future Exposure

6/11

11-04

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1. Purpose and Scope. This chapter contains procedures for the initial acceptance of claims. It supplements information about developing claims (FECA PM 2-0800), the five basic requirements of a claim (FECA PM 2-0801 through 2-0805), weighing medical evidence (FECA PM 2-0810), and disability management (FECA PM 2-0600). Also, see FECA PM 2-1400 for a detailed discussion of disallowances.

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2. Accepting the Claim. In adjudicating the case, the CE must review and evaluate all material submitted to determine whether the case meets the five basic requirements for a claim under the FECA (timeliness, civil employee, fact of injury, performance of duty, causal relationship). If the evidence is sufficient to establish that the five basic requirements have been met, the CE should take the following actions:

a. Determine what diagnosis or diagnoses to accept based on the medical documentation of record, and identify the corresponding International Classification of Diseases (ICD) codes.

(1) The CE should accept each diagnosis that is causally related to the work injury, regardless of severity or impact on disability. Cases with multiple medical conditions are further addressed in paragraph 4 of this chapter.

(2) If the medical evidence establishes that a pre-existing condition was aggravated, an aggravation should be accepted, not the underlying condition itself.

b. In traumatic injury cases, determine if Continuation of Pay (COP) is payable. If COP has been claimed but is not payable, the CE should release a formal decision with appeal rights denying COP. In occupational disease cases, and in those cases where the claimant is not entitled to COP but has lost wages as identified by the receipt of Form CA-7, the CE should determine if compensation is payable in accordance with timely payment procedures. See FECA PM 2-0807 for further discussion of COP and PM 2-0901 for further discussion of initial payment of compensation.

c. Enter the accepted condition(s) (i.e., ICD-9 code(s)) and the correct case status and adjudication status codes into the Integrated Federal Employees' Compensation System (iFECS). See FECA PM 2-0401 for details about case status and adjudication status codes.

d. Advise the claimant by letter of the condition(s) accepted. A letter should be issued in all formally adjudicated and accepted cases, without exception. The letter should include the date of injury, name of the employer, accepted work-related condition(s), information regarding entitlement to COP (if applicable), and instructions for filing a wage-loss claim (if applicable). A copy of the letter should be sent to the employing agency, and to the claimant's representative, if applicable.

e. If the employing agency has challenged the claim and/or controverted COP, and such challenge or controversion is not upheld, the CE must acknowledge and respond to the challenge either in the acceptance letter or by separate correspondence. Responding to challenges is further discussed in paragraph 7 of this chapter.

f. Review the case to determine if the potential for third party liability exists. If third party potential exists, the CE should initiate third party subrogation procedures in accordance with FECA PM 2-1100.

g. Review the case to determine if Disability Management actions are needed. See paragraph 3 of this chapter.

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3. Disability Management Upon Acceptance. At the time the claim is accepted, the CE should ascertain the claimant's current work status if it is not clear in the file.

If the claimant is losing time from work, the CE should initiate disability management actions in accordance with FECA PM 2-0600. If the claimant is working in a limited duty capacity without wage loss because of the accepted work injury, disability management actions may also begin.

If upon acceptance, it is clear that disability management is needed because the claimant has not returned to work, the CE should advise the claimant in the acceptance letter that OWCP is evaluating the case to determine what steps are necessary to facilitate medical recovery and sustainable return to work; such notice will prepare the claimant for the upcoming disability intervention actions.

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4. Multiple Medical Conditions. In many cases, the claimant will claim multiple conditions on the CA-1 or CA-2. The CE should ensure that all claimed conditions are addressed at the time of initial adjudication. The action taken by the CE will depend on whether each claimed condition has been properly developed.

a. If all claimed conditions have been developed, and the evidence of record supports acceptance of some but not all of the conditions claimed, the CE should issue an acceptance letter for the compensable conditions and issue a formal decision with appeal rights denying the remaining claimed conditions. Like any other formal denial, this decision must make findings of fact and include appeal rights.

b. If multiple conditions have been claimed, the evidence submitted supports acceptance of some but not all of the conditions, and the remaining conditions have not been developed, the CE should issue an acceptance letter for the compensable conditions and concurrently issue a development letter for the remaining claimed conditions. The development may be undertaken in either the acceptance letter itself or by separate correspondence.

c. In some instances, the claimant may claim only one medical condition, while the medical evidence indicates that multiple diagnosed conditions are work-related. The CE should accept each diagnosis related to the work injury, regardless of severity or impact on disability. For example, a claimant slips and falls on ice in the course of employment, and a left hip contusion and left knee medial meniscus tear are diagnosed by a physician in the emergency room. Even if the left knee condition becomes the predominant cause for disability and need for further treatment, the CE should also accept the left hip contusion, assuming the five basic requirements are met.

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5. Resolved Conditions. In some instances the medical evidence will support that a condition being accepted at the time of adjudication has already resolved. In these situations, a determination regarding ongoing entitlement may be addressed in the acceptance letter. This is particularly important if there is evidence of ongoing treatment for another non-work related, but similar, condition.

In this instance, the CE cannot state that the work-related condition has resolved and close the case without providing the claimant the opportunity to exercise appeal rights. For this reason, the CE must cite the evidence that demonstrates the condition has resolved in the acceptance letter, attach a copy of the medical evidence to the acceptance letter, and include appeal rights. For medical bill processing purposes, the case should first be adjudicated for the acceptance with appropriate case status and adjudication codes, before updating iFECS with the final coding of C3/D5.

Where multiple conditions have been accepted, the medical evidence may support that one or more condition has resolved while residuals are ongoing for remaining accepted conditions. Such cases should be open for benefits related to the ongoing accepted conditions while finding no further entitlement for those conditions which have resolved.

The following sample language may be used when an accepted condition has clearly resolved: Your claim has been accepted for a cervical strain, resolved by April 1, 2011. In a report dated April 1, 2011, your treating physician stated that your examination resulted in normal findings and the cervical strain had completely resolved. A copy of this April 1, 2011 report is enclosed. Therefore, no further benefits for a cervical strain will be covered after the date of this letter. If you disagree, please refer to the attached appeal rights.

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6. Accepting and Simultaneously Closing a Case. The Office should administratively close a case at the time of adjudication if the treating physician has released the claimant from care and/or advised the claimant to return only on an as-needed, or "prn," basis. This often occurs with minor conditions such as sprains/strains and contusions.

The CE should properly notify the claimant in the acceptance letter that the case has been closed. Appeal rights need not be attached, as such a closure is not a termination of benefits and would still allow the claimant to pursue reopening his or her claim (e.g. by filing Form CA-2a, Notice of Recurrence). For medical bill processing purposes, the case should first be adjudicated with appropriate case status and adjudication status codes and saved before updating the final coding to C5/AM.

Sample language: On April 16, 2011, your physician released you from care to return on an as-needed (prn) basis. Therefore, your case has been administratively closed with no need for further medical care anticipated. This will allow authorized medical bills submitted for payment to be processed for a period of 120 days from the date of this letter. Form CA-2a, Notice of Recurrence, may be filed in the event further medical care is needed.

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7. Addressing Employing Agency Challenges/Controversions. A controversion is an employing agency's dispute, challenge, or denial of the validity of a claim for COP. An employing agency may controvert COP based on one of nine statutory exclusions (see FECA PM 2-0807) or challenge the claim as a whole based on other objections associated with the five basic requirements for FECA coverage. The term "controversion" applies specifically to the issue of COP. The agency may pay COP but challenge the claim itself; controvert COP (based on a statutory exclusion) but not challenge the claim; or controvert COP and challenge the claim.

The CE must be mindful of the nature, strength and logic of the employing agency's objection and thoroughly develop the controversion or challenge if necessary. A controversion or challenge can be addressed in the development letter or acceptance letter with a copy to the employing agency or in a separate narrative letter to the agency.

The CE must provide a response to the employing agency's challenge or controversion if the claim is accepted and COP is approved. This would also include situations where no specific reason or argument is provided by the agency in support of its objection. The CE should provide such notification within the body of the acceptance letter or by separate letter. In some instances it will be more appropriate to notify the agency by separate letter or by using Form Letter CA-1038; however, notification should be provided at the time of acceptance. The CE should sufficiently explain the basis for approving COP or the claim by specifically referencing each challenge and explaining how the evidence of record was used to support the acceptance of the case. The facts or dates of medical reports which led to the determination should be clearly stated.

Sample language to Employing Agency addressing a challenge of a claim: It is noted that you challenged this claim due to a lack of medical evidence establishing causal relationship. The evidence, however, supports that this employee is a Federal employee who sustained a traumatic injury in the performance of duty; therefore, the case has been accepted. Even though you indicated that there was a lack of medical evidence, we have received a report from Dr. John Smith dated March 31, 2011 supporting causal relationship in this case. The injury was clearly established (the claimant fell on ice) and the attending physician diagnosed a right knee meniscus tear as a result of the injury.

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8. Aggravation of a Medical Condition. A claimant may sustain an aggravation of a pre-existing condition due to an injury arising in the course of employment. This could result from a traumatic event or exposure to hazardous conditions.

In determining whether a pre-existing medical condition has been aggravated by an injury or by job duties, causal relationship can only be established by medical evidence. Where medical evidence establishes that a pre-existing condition was aggravated, an aggravation should be accepted, not the underlying condition. The CE should accept either a temporary or permanent aggravation, depending on the medical evidence of record. A permanent aggravation should only be accepted after careful evaluation of the weight of the medical evidence of record, as discussed in FECA PM 2-0805.

A CE can neither diagnose nor medically determine the extent and duration of an aggravation or any disability associated with the aggravation. This determination must be made based on the medical evidence. The extent and duration of work-related aggravation is one of the critical areas that should always be developed when an aggravation is diagnosed.

The CE should define in the acceptance letter exactly what type of aggravation is being accepted, whether temporary or permanent. If the accepted aggravation has ceased, the acceptance letter should state the date that the accepted aggravation is considered to have ended by citing the specific medical evidence used to make that determination. The CE should also consider whether the case is in posture for termination of ongoing benefits at the time of acceptance, in which case appeal rights must be attached (see paragraph 5 of the chapter). If it remains unclear whether the temporary aggravation has resolved, the CE should include questions to the attending physician (or write to the physician directly) at the time of acceptance in order to develop when the temporary aggravation is expected to subside or return to baseline, or pre-injury, status.

If the aggravation is temporary and leaves no permanent residuals, the claimant is entitled to compensation only for the period of disability related to the aggravation. This is true even when the claimant is found medically disqualified to continue in his or her regular job because of the effect which the employment factors might have on the pre-existing condition. When the claimant's inability to continue working is due to the underlying condition, without any contribution from the employment, compensation is no longer payable.

The Employees' Compensation Appeals Board (ECAB) has held that where an employee claims an aggravation of a preexisting condition, the employee must provide a rationalized medical opinion discussing the nature of the condition, including its natural or traditional course, and how the underlying condition was affected by the employment. See Newton Ky Chung (39 ECAB 919___ (1988) and Raquel Navedo-Cruz, Docket No. 96-1558; Issued May 1, 1998).

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9. Risk of Future Exposure. Generally speaking, a wage-loss claim due to the risk of future exposure or prevention of future injury (prophylactic measures) is not compensable.

When an employee cannot work due to risk of future exposure, the CE must determine whether the susceptibility is due to the employee's exposure on the job site, or if it pre-existed such exposure. Such disability is compensable only if it is due to exposure on the job.

As ECAB held in Dennis L. O'Neill (29 ECAB 151) and clarified in James L. Hearn (29 ECAB 278), when an employee has suffered a work-related injury which results in permanent residuals, disability for work may result when additional exposure to the implicated employment conditions would further endanger the employee's health, although the residuals of the injury alone might not be disabling.

For instance, since exposure to asbestos dust generally results in permanent and irreversible changes in the pulmonary system, medical evidence may state that continued employment in a certain job or work environment is contraindicated due to the dangers of continued exposure. If the employing agency cannot provide employment in an environment that conforms to the medically allowed level, the claimant will be entitled to compensation. If the impairment is sufficient to disable the individual for his or her customary employment, the CE should refer the claimant for vocational rehabilitation services.

On the other hand, if employment factors aggravate a pre-existing condition, the claimant is entitled only to compensation for the period of disability related to the aggravation, if the aggravation is temporary and leaves no permanent residuals. This is true even if the claimant is found medically disqualified to continue in his or her regular job because of the effect which the employment factors might have on the pre-existing condition. The claimant's inability to continue working is due to the underlying condition, without any contribution from the employment, and therefore compensation is not payable.

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Chapter 2-1401, Initial Denials

Paragraph and Subject

Date

Trans. No.

Table of Contents

11/12

13-01

1. Purpose and Scope

11/12

13-01

2. Statutory and Regulatory Requirements

11/12

13-01

3. Burden of Proof

11/12

13-01

4. Element for Denial

11/12

13-01

5. Writing the Initial Denial

11/12

13-01

6. Emotional Condition Denials

11/12

13-01

7. iFECS Coding

11/12

13-01

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1. Purpose and Scope. This chapter describes the steps involved in processing an initial case denial if any one of the five basic requirements has not been established. Along with Federal Employees' Compensation Act (FECA) Procedure Manual (PM) 2-0801 through 2-0805, it covers the factors that should be addressed when denying an initial claim and preparing the formal Notice of Decision.

A formal decision is required in any case where the Office of Workers' Compensation Programs (OWCP) has received a Form CA-1, CA-2, CA-5, or CA-5b and, after appropriate development, one or more of the five basic requirements of the claim has not been met.

See FECA PM 2-1400 for more information on disallowances and signature authority.

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2. Statutory and Regulatory Requirements.

a. Section 5 U.S.C. 8124(a) of the Federal Employees' Compensation Act (FECA) requires the OWCP to make findings of fact with respect to each claim filed after considering the claim and information from the employing agency, and after such investigation as considered necessary, and then to make an award for or against the payment of compensation.

b. 20 C.F.R. §10.115 outlines the basic evidence that is required to establish a claim, and stipulates that evidence must be reliable, probative and substantial. This section also outlines that the evidence should be submitted in writing, and that it is the claimant's burden of proof to establish the claim.

c. 20 C.F.R. §10.121 outlines that if the claimant submits factual and/or medical evidence, but the OWCP determines that this evidence is not sufficient to meet the burden of proof, the OWCP will inform the claimant of the additional evidence needed. The claimant will be allowed at least 30 days to submit the evidence required. The OWCP is not required to notify the claimant a second time if the evidence submitted in response to its first request is not sufficient to meet the burden of proof.

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3. Burden of Proof. This paragraph describes the claimant's burden of proof for establishing a claim and the necessary steps the Claims Examiner (CE) should take before an initial claim may be formally denied.

Before preparing an initial case denial, the CE should adequately develop the claim and advise the claimant in writing of his or her burden of proof in establishing entitlement to benefits. After all appropriate development (see FECA PM 2-0800), if one of the five basic requirements has not been met, the case should be denied. A formal decision with appeal rights is required.

a. Burden of Proof. Under the FECA, a claimant has the "burden of proof" for submitting the evidence to establish that a claim meets all five basic requirements. The claimant must always be provided an opportunity to perfect his or her claim and should be informed of the following:

(1) The deficiencies in the evidence submitted and the information necessary to correct them.

(2) The deadline for submitting the evidence and the consequences for failing to do so.

b. Timely Decisions. It is the OWCP's obligation to render a decision on each case as promptly as possible. The Office must notify both the claimant and any authorized representative of its decision in all cases. The employing agency should also be provided with a copy of any formal decision issued.

(1) Timeframe. An initial claim may not be denied until the allotted time given to submit any evidence in support of the claim has passed. The claimant must be allowed at least 30 days to submit the evidence required.

(2) The day the claim is developed is considered day "zero."

Example. If the claim was developed on June 10th, the next day (June 11th) is the beginning of the 30 day period. The claim could not be denied until the 31st day, which would be July 11th.

(3) If the 30th day is a holiday or weekend day, the CE should wait until the next business day (after the claimant has received the full 30 days to submit evidence) to issue the decision.

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4. Element for Denial. After the claimant has been provided the opportunity to submit necessary evidence, the CE should review the claim to determine whether the five basic elements have been met. See FECA PM 2-0801 through 2-0805.

The five basic elements should be considered in the order below (a through e). The first element that the claimant fails to establish should be the basis for initial denial. In most cases, however, the decision should also outline the deficiencies in the subsequent elements to ensure that all flaws in the claim are adequately addressed.

a. Time. If statutory time requirements have not been satisfied, the case will be denied as untimely. If this first basic element is not met, the claim does not require further review. See 5 U.S.C. 8122 and FECA PM 2-0801.

b. Civil Employee. If the claim was filed timely, but the injured or deceased party was not a civil employee of the United States within the meaning of 5 U.S.C. 8101(1), the case should be denied on that basis. See FECA PM 2-0802.

c. Fact of Injury (FOI). Once the first two elements are established, it must be determined whether an injury occurred as alleged. See FECA PM 2-0803. This element consists of two components: FOI-Factual and FOI-Medical. Both components must be satisfied before the fourth basic element, performance of duty, may be considered. The CE must decide whether FOI-Factual has been met before addressing FOI-Medical.

(1) To establish FOI, it must be determined whether:

(a) The claimant actually experienced the incident, accident, untoward event, or employment factors alleged to have occurred (factual determination).

(b) A medical condition has been diagnosed by a physician (generally an MD or DO) in connection with the event or employment factor(s) (medical determination). While only a diagnosis associated with the injury is needed to meet this element, a description of symptoms alone does not suffice.

(2) Denial Basis.

(a) If the factual evidence fails to establish that the injury occurred, the claim should be denied on a factual basis. Even if the medical component is established, the case should still be denied on a factual basis, as this is the first component not met.

(b) If both the factual and the medical evidence are deficient, the claim should be denied on a factual basis, but the lack of a medical diagnosis should also be mentioned.

(c) If the factual evidence establishes that an injury occurred, but the medical evidence fails to establish that a medical condition has been diagnosed in connection with the claimed event or work duties, the claim should be denied on a medical basis.

d. Performance of Duty (POD). The claimant must not only show that an injury occurred, but that he or she was performing official duties (or an activity incidental to employment) at the time of injury. For an injury to be compensable, it must have occurred while the employee was in the performance of duty; the injury must arise out of and occur during the course of employment. See FECA PM 2-0804.

Even if the medical evidence establishes a diagnosis in connection with the injury, if the claimant was not injured in the performance of duty, the claim should be denied on that basis.

e. Causal Relationship (CR). Finally, the claimant must show that the injury was causally related to the accepted event or employment factors. This requirement is satisfied on the basis of medical evidence, which is usually supplied by the attending physician. See FECA PM 2-0805.

If all prior basic elements have been met, but the evidence does not support that the claimant's condition is causally related to the accepted employment incident or factors, the claim should be denied on the basis that causal relationship has not been established.

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5. Writing the Initial Denial. Once it has been determined which of the five basic elements has not been established, the initial denial should be issued. The initial denial is an explanation of the disallowance of the claim; thus, it is important that it is clearly written so that the claimant has a complete understanding of why the claim was disallowed and the evidence necessary to perfect the claim. The denial decision is a legal document which serves as the basis for further action in the claim, including appeals, so it should be technically accurate.

a. Notice of Decision. The Notice of Decision for an initial denial should: describe the nature of the injury; summarize the evidence initially submitted with the claim and provide an explanation as to why it was deficient; summarize what was requested upon development; describe all evidence received after development; and explain why the evidence is insufficient to support the claim. See FECA PM 2-1400 for more explanation regarding formal disallowances.

(1) Clear explanation. The initial denial should clearly explain which of the five basic elements have been met, the specific element upon which the claim is being denied, and the additional evidence that is lacking. While the decision should make clear which element of the claim has not been met and is the basis for the denial, the decision should briefly address all deficient elements (except when the claim is denied based on Time or Civil Employee).

For example, if a claim is denied on the medical component of the third basic element, Fact of Injury, because no medical diagnosis/evidence has been submitted, it is important for the claimant to understand that:

(a) The evidence of record established that the claim was timely filed by a Federal civilian employee and supports that the injury occurred as alleged;

(b) The case is being denied on the third basic element, Fact of Injury, because medical evidence containing a diagnosis in connection with the injury was not submitted; and

(c) Even if medical evidence containing a diagnosis is submitted (to satisfy Fact of Injury), medical evidence to establish the remaining medical element, Causal Relationship, is still required. If the performance of duty element is deficient, this should be addressed as well.

(2) Clear Language. The CE should use simple words, avoid technical terms, and use the active voice and the second person. See examples in paragraph b. below.

(3) Shell decisions. Correspondence Library contains shell decisions for each of the five basic elements to serve as a guide in writing the initial denial. Any shell used should be tailored to the specifics of the individual case. All of the necessary information and an appropriate discussion and analysis of the evidence should be included in the decision.

b. Elements of the Initial Denial. Initial denials are usually written as letter decisions. Regardless of the format, however, each initial denial should contain the following elements:

(1) Complete Background. The decision should provide an explanation regarding what was claimed; explain the evidence that was submitted with the initial filing of the claim; and describe what specific evidence was requested upon development.

Example: On 02/02/12, you filed a claim for a traumatic injury, indicating you sustained an injury or medical condition on 02/01/12 as a result of your employment as a Nurse with the Department of Veterans' Affairs in Anywhere, USA. Specifically, you stated that the injury or condition occurred when you slipped on a wet floor by the nurses' station and hurt your back. In addition to your claim, you submitted your factual statement dated 02/02/12 describing your injury, and a statement from a co-worker who witnessed your fall. No other evidence was submitted with your claim.

On 02/10/12 this office advised you of the deficiencies in your claim and provided you the opportunity to submit additional evidence. Specifically, you were asked to submit a medical report from a qualified physician that included a diagnosis in connection with your injury, and the physician's opinion as to how the diagnosed condition is causally related to the fall at work. You were provided 30 days to submit the requested information.

(2) Discussion of Evidence. All evidence submitted should be reviewed and discussed in the decision. Evidence received following development that lacks probative value should also be acknowledged. Whenever possible, reference the evidence by author and date.

Example: In response to our development letter, we received the following evidence: a disability slip dated 02/02/12 from Dr. John Smith placing you off work for a week due to "pain" in your back; and a 02/14/12 statement from your supervisor, Jane Doe, indicating that she did not witness the injury.

(3) Requirements for Entitlement. An initial denial should contain standard language outlining the requirements for acceptance of a case.

Example: In order for a claim to be accepted under the Federal Employees' Compensation Act (FECA), the claim must meet 5 basic elements. The claim must: 1) Be Timely Filed; 2) Be made by a Federal Civil Employee; 3) Establish Fact of Injury, which has both a factual and medical component. Factually, the injury, accident or employment factor alleged must have actually occurred. Medically, a medical condition must be diagnosed in connection with the injury or event; 4) Establish Performance of Duty. The injury and/or medical condition must have arisen during the course of your employment and within the scope of compensable work factors; 5) Establish Causal Relationship, which means the medical evidence establishes that the diagnosed condition is causally related to the injury or event.

(4) Issue. The CE should identify the specific element of the five basic elements that has not been met.

Example: You have established that you are a Federal civilian employee who filed a timely claim; however, after a thorough review of all evidence, your claim is denied because the medical component of the third basic element, Fact of Injury, has not been met.

(5) Basis for Denial. The decision should provide a thorough explanation and analysis as to why the evidence submitted was insufficient to substantiate the claim, and the decision should be clear with regard to what specific element has not been met.

The claimant should also understand what other evidence would be needed to perfect the claim, e.g. if FOI-Medical has not been met, also alert the claimant that medical evidence establishing Causal Relationship would be needed prior to acceptance of the claim. This allows the claimant the opportunity to submit all necessary evidence if he or she chooses to pursue an appellate option that allows submission of new evidence.

Example: Specifically, your case is denied because you did not submit any medical evidence containing a medical diagnosis in connection with the injury and/or event. The medical evidence in your case only contains a diagnosis of "pain." Pain is a symptom and is not a diagnosis of a medical condition.

Medical evidence is required that not only contains a diagnosis but also establishes that a diagnosed medical condition is causally related to the work injury or event. Therefore, even if you submit medical evidence containing a diagnosis, you must also submit evidence that establishes the remaining medical element, Causal Relationship, as described above.

(6) Appeal Rights. Appeal rights must be included with all initial claim denials, and should correctly advise the claimant of his or her rights of appeal. The courses of action include:

(1) Hearing. The claimant may request a hearing if the injury or death occurred after July 4, 1986. Section 5 U.S.C. 8124 provides, however, that a claimant is only entitled to a hearing as a matter of right if the request is made within 30 days of the Office's initial decision and before any reconsideration is undertaken. The claimant may (but is not required to) submit new evidence in connection with a hearing. See PM 2-1601.

(2) Reconsideration. To support a request for reconsideration, the claimant must submit relevant new evidence or legal argument not previously made. Effective August 29, 2011, an application for reconsideration must be received by the OWCP within one year of the date of the OWCP decision for which review is sought. See 20 C.F.R. §10.605 – 10.609. See also PM 2-1602.

(3) Employees' Compensation Appeals Board (ECAB). The ECAB will not consider new evidence. Therefore, any appeal to the Board must proceed on the basis of the record as it stands at the time of the OWCP's decision. See PM 2-1603. See also 20 C.F.R. §501.2(c).

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6. Emotional Condition Denials. To deny an initial claim for an emotional condition, the CE should similarly prepare a Notice of Decision including appeal rights (as described in Paragraph 5 above). However, it is especially important in these cases to identify and discuss all evidence that pertains to the issue at hand, including any unsuccessful attempts to obtain significant evidence.

The CE must first determine whether the situations alleged actually existed or occurred. The CE will then need to distinguish between those workplace activities and circumstances which are factors of employment and those which are outside the scope of employment for purposes of compensation.

a. The CE should outline work-related and non work-related elements into three parts, labeled as follows:

(1) Accepted Events that are Factors of Employment

(2) Accepted Events that are Not Factors of Employment

(3) Incidents Alleged which the Office Finds Did Not Occur

b. Factual Evidence

(1) The CE should summarize each allegation made by the claimant and the employer's response as it pertains to each allegation.

(2) All evidence submitted from the claimant and/or the employer in reference to each allegation should be summarized.

c. Medical Evidence. All pertinent medical evidence submitted and its content should be summarized to the extent that it pertains to the basis for the denial of the claim (as described in Paragraph 5 above).

d. Element for Denial. As described in Paragraph 4 above, after the claimant has had an opportunity to submit necessary evidence, the CE should consider the five basic elements in a hierarchical manner and determine which of the five basic elements has not been established after review of all evidence in the case record. The elements of Time and Civil Employee are determined similarly for all case types; however, there are specific criteria to consider in emotional condition cases when reviewing the remaining three basic elements.

(1) Fact of Injury-Factual. Each distinct allegation should be addressed separately as to whether or not it occurred. An explanation should be provided for each allegation that has/has not been accepted to have occurred.

If it cannot be established that any of the allegations/incidents claimed actually occurred, the claim should be denied on FOI-Factual.

(2) Fact of Injury-Medical. If the claimant has met the factual portion of FOI and substantiated at least one allegation/incident but failed to submit any medical evidence in connection to that allegation/incident, the claim should be denied on the basis of FOI-Medical.

A clear discussion should be provided that advises the claimant that no medical evidence has been received with a diagnosis in connection to any of the accepted events.

Each allegation made by the claimant should be identified, and the CE should provide a final assessment of the accepted events that are factors of employment, those that are not factors of employment, as well as any incidents alleged that the Office finds did not occur.

If there are accepted events that are not found to be compensable factors of employment, the CE should advise the claimant that even if medical evidence is submitted containing a diagnosis, there is no evidence substantiating causal relationship to an accepted factor of employment.

(3) Performance of Duty (POD). Even if only one allegation is determined to be factually accurate and FOI-Medical is established, the CE must consider the next basic element, POD. If it is determined that none of the accepted events are considered to be compensable factors of employment, then the case should be denied on the basis that the injury did not occur in the performance of the claimant's duties.

A denial on POD requires that the CE identify the "Accepted Event(s) that are Not Factors of Employment" and "Incidents Alleged which the Office Finds Did Not Occur." The claimant should be advised that none of the Accepted Events are considered Factors of Employment.

Each accepted event that is not found to be a factor of employment should be discussed separately, with an explanation as to why it is not considered to have arisen out of or occurring during the course of the claimant's employment. ECAB citations where the Board has previously addressed similar circumstances may be used to support the CE's finding.

(4) Causal Relationship (CR). After completion of the above review, if a factor of employment is established as occurring in POD, the CE must consider if the diagnosed condition is causally related to the accepted factor(s), and deny on CR if it is not. See PM 2-800-9(a)(2).

A claim should be denied as not causally related if the medical evidence after initial development is:

(a) insufficient to support CR on even a prima facie basis;

(b) the second opinion or attending physician's report negates CR, or causally relates the emotional condition to an event that is not a compensable factor of employment; or

(c) after additional development has been undertaken (clarification of the attending psychiatrist/psychologist's initial report or second opinion examination), a report is not received or is insufficient.

An initial emotional condition denial on CR is similar to a denial on POD in that the three types of factors are delineated, but the CR decision additionally discusses the medical evidence and why it is insufficient to support the relationship of the emotional condition to the accepted factor(s) of employment.

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7. iFECS Coding. Once a case is denied, the CE must appropriately code the denial in iFECS. Assignment of the following codes should correlate with the date of the decision. Any denial code prevents the payment of bills and compensation as of that date.

The following adjudication and pay status codes are assigned with initial denial decisions:

a. D1/C3

The claim was not Timely filed.

b. D2/C3

The claimant is not a Civil Employee.

c. D3/C3

Fact of Injury is not established.

d. D4/C3

Performance of Duty is not established.

e. D5/C3

Causal Relationship is not established.

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