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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 2 – Payment of Compensation and Schedule Awards

2-0807

Continuation of Pay and Initial Payments

2-0808

Schedule Awards and Permanent Disability Claims

2-0900

Determining Pay Rates

2-0901

Compensation Claims

2-1000

Dual Benefits

2-1300

Lump Sum Payments

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Chapter 2-0807, Continuation of Pay and Initial Claims for Compensation

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/12

12-07

1. Purpose and Scope

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12-07

2. Statutory Authority

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12-07

3. COP Defined

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12-07

4. Employee Status

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12-07

5. Employee Responsibilities

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12-07

6. Employing Agency Responsibilities

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12-07

7. Controversion of COP

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12-07

8. Counting COP Days

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12-07

9. Interruption and Suspension of COP

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12-07

10. Termination of COP

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12-07

11. COP and Modified Duty Assignments

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12. Payment of COP

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13. COP and Leave Election

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14. Formal Adjudication of COP

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15. Initial Claim for Compensation Following COP

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12-07

1. Purpose and Scope. This chapter furnishes the information and instructions necessary for the Claims Examiner (CE) to understand and implement the provisions of the Federal Employees' Compensation Act (FECA) pertaining to continuation of pay (COP), which are found at 5 U.S.C. 8118, and to process initial claims for compensation in a timely manner.

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2. Statutory Authority. Effective September 7, 1974, the FECA was amended to authorize the employing agency to continue an employee's pay for a period not to exceed 45 days, pending the OWCP's adjudication of the employee's claim for compensation. COP applies only to traumatic injuries occurring on or after November 6, 1974 and reported on an OWCP claim form within 30 days. The intent of the COP provision is to eliminate interruption in the employee's income for the period immediately following a job-related traumatic injury. The COP provision eliminates interruption of pay for the great majority of employees injured on or after November 6, 1974. See 5 U.S.C. 8118.

Effective December 20, 2006, the FECA was amended by Title IX of the Postal Service Accountability and Enhancement Act to establish a three-day waiting period before COP may be granted to employees of the United States Postal Service.

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3. COP Defined. COP is the continuance of the employee's regular pay for a period not to exceed 45 calendar days of disability. See 20 C.F.R. §10.200.

a. Disability. The employee is entitled to continued pay when he or she is totally disabled for work or partially disabled for work, including reassignment by personnel action to a lower grade or position with lower rate of pay.

b. Medical Care. The employee is entitled to continued pay when he or she loses time from work due to the need for medical examination and treatment for the work injury.

c. Lost Elements of Pay. If the effects of the injury require that an employee lose elements of pay (e.g., the assignment of a night shift worker to a day shift in order to perform prescribed light duty), COP should be granted for the lost elements of pay (e.g., the night differential).

d. Light Duty. Informal assignment of light or restricted duties, without a personnel action and without loss of pay, is not counted as continued pay under 5 U.S.C. 8118 and does not decrease the number of days available to the claimant. See 20 C.F.R. §10.217.

e. Relationship to Compensation. COP during the 45-day period is not considered compensation as defined by 5 U.S.C. 8101(12) and therefore is subject to income tax, retirement and other deductions. See 20 C.F.R. §10.200(a).

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4. Employee Status. The policies and procedures for determining whether the injured or deceased individual was a civil employee of the United States within the meaning of 5 U.S.C. 8101(1) are found in FECA PM 2-0802. The eligibility of certain groups of these civil employees to receive COP is determined by statute and regulation.

a. Statutory Exclusions. Persons appointed to serve on the office staff of a former President are considered to be Federal employees, but they are specifically excluded from entitlement to COP. Persons listed in subsections "i" through "iv" of 5 U.S.C. 8101(1)(E) are expressly excluded from COP because they are not employees within the meaning of the FECA.

b. Separate Legislation. Persons whose entitlement to FECA benefits depends upon separate legislation are also excluded from COP. In many of these cases, entitlement to compensation begins from the date such persons are discharged from the programs in which they are enrolled, such as the Peace Corps, Job Corps, and Youth Conservation Corps. In other instances, the employment status and/or pay rate is too uncertain to make specific determinations (e.g., Work Study students, Civil Air Patrol Volunteers, and non-Federal law enforcement officers). See 20 C.F.R. §10.200(d).

c. Individuals Serving Without Pay or for Nominal Pay. Persons whose employment status for compensation purposes is determined under 5 U.S.C. 8101(1)(B) (e.g., consultants and volunteers) work without pay or for nominal pay, and they are generally not carried in a regular, continuing-pay status. While these individuals render personal service to the United States similar to civil officers and employees, they are not entitled to COP, per 20 C.F.R. §10.200(d).

d. Non-Citizens and Non-Residents. Persons who are not citizens or residents of the United States or Canada, and who are injured while working outside the continental United States or Canada, are covered under the provisions of 5 U.S.C. 8137 and are excluded from COP, per 20 C.F.R. §10.220(b).

Panamanian nationals employed by any agency of the U. S. government, including the Panama Canal Commission, before October 1, 1979 are entitled to COP. Those hired on or after that date, however, are not entitled to COP.

e. Jurors. Any person serving as a petit or grand juror subject to Chapter 121 of Title 28 is entitled to coverage under the FECA, whether or not he/she is also a Federal employee. In order to be entitled to COP, however, the juror must be a Federal employee, per 20 C.F.R. §10.200(d). If the juror is not a Federal employee, he/she is not entitled to COP.

f. Temporary Employees. Persons in this category are civil employees of the Federal government and are included under the provisions of 5 U.S.C. 8118. The fact that their employment would not have continued is not considered sufficient reason to exclude them from coverage, subject to the conditions noted in paragraph 10b below. Like any other employee, however, a temporary employee who first reports a traumatic injury after the employment is terminated is not entitled to COP, per 20 C.F.R. §10.220(d).

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5. Employee Responsibilities. Per 20 C.F.R §10.205, to be eligible for COP, the injured employee must meet three requirements: 1) sustain a traumatic injury which is job-related and the cause of the disability and/or the cause of lost time due to the need for medical examination and treatment; 2) provide timely written notice of such injury on Form CA-1 or other OWCP-approved form; and 3) begin losing time from work due to the traumatic injury within 45 days of the injury. In addition to those three requirements, the employee must also present medical evidence in support of any claimed disability. The injured employee is also responsible for advising his or her physician of any available modified duties and for returning to duty upon release to any available work, whether regular or modified.

a. Traumatic Injury. A traumatic injury is defined as a condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by external force, including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body affected. See 20 C.F.R. §10.5(ee). Such an injury is distinguishable from an occupational disease or illness in that the latter is a condition produced by the work environment over a period longer than a single work day or shift. See 20 C.F.R. §10.5(q).

b. Timely Notice of Injury. The injured employee, or someone acting on his or her behalf, must provide a written report on Form CA-1 (Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation) to the employing agency within 30 days of the injury. See 20 C.F.R. §10.210(a). Another OWCP-approved form, such as Form CA-2 (Notice of Occupational Disease and Claim for Compensation), CA-2a (Notice of Recurrence), or CA-7 (Claim for Compensation on Account of Traumatic Injury or Occupational Disease), which contains words of claim, can be used to satisfy timely filing requirements.

(1) The employee's submission of a sick leave slip or any form of leave request other than Form CA-1 or CA-2 to the employing agency may not be construed as an election of personal leave over COP for disability resulting from a traumatic injury.

(2) The Employees' Compensation Appeals Board (ECAB) held in the case of William E. Ostertag, 33 ECAB 1925 (1982), that 5 U.S.C. 8122(d)(3), which provides that failure to file claim in a timely fashion may be excused for exceptional circumstances, does not apply to claims for COP. See, P.L., Docket No. 11-493 (issued September 22, 2011) (ECAB stated: "Because the FECA makes no provision for an exception to the time limitation in section 8118(a), no exceptional or mitigating circumstance, including error by the employing establishment, can entitle a claimant to continuation of pay who has not filed a written claim within 30 days of the date of injury.")

c. The employee's first work stoppage must occur within 45 days of the date of injury in order for the employee to be entitled to continued pay. If the employee's work stoppage occurs more than 45 days after the injury, the employee may claim compensation for leave without pay or leave buy back on Form CA-7.

d. Medical Evidence. The employee must present the employing agency with medical evidence supporting disability resulting from the claimed traumatic injury within 10 calendar days after filing a claim for COP. See 20 C.F.R. §10.210(b). The employing agency may continue the employee's pay absent such evidence if the nature and severity of the injury warrant the continuation. COP may be reinstated retroactively if payment was not initially authorized but supporting medical evidence is received later, as noted in 20 C.F.R. §10.222(a)(1).

e. Advising the Physician. Where the agency has advised the employee that a specific alternative position exists, the employee must furnish a description of the position to the physician and inquire whether and when he or she will be able to perform such duties. Likewise, where the agency has advised that it is willing to accommodate the employee's work limitations, the employee must so advise the attending physician and ask the physician to specify the limitations imposed by the injury. In both instances, the employee must provide the agency with a copy of the physician's response. See 20 C.F.R. §10.210(e).

f. Return to Duty. The injured employee must return to work upon notification by the attending physician that the employee is able to perform regular work or light duty, and the agency has advised that work within those restrictions is available. If the employee refuses to do so, the continued absence from work may result in an overpayment. COP may also be terminated if the employee refuses to respond to the agency's offer of work within five work days of receipt of the offer. The agency may make the offer to the employee over the telephone, but must confirm the offer in writing as soon as possible thereafter. The OWCP cannot evaluate the position to determine whether the position meets the claimant's physical restrictions until the position is offered in writing.

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6. Employing Agency Responsibilities. When an employee has suffered an employment-related traumatic injury, the employing agency should take action with respect to the following:

a. Authorizing Medical Care. The agency should promptly authorize medical care on Form CA-16 (Authorization for Examination and/or Treatment) and give the form to the claimant (or to someone acting on his or her behalf) to present to initial medical providers. See 20 C.F.R. §10.211(a). If the supervisor is not certain that the injury occurred in the performance of duty, item 6B on Form CA-16 should be checked.

b. Providing Notice of Injury. The supervisor should furnish Form CA-1 to the employee, or to someone acting on his or her behalf, for completion of the employee's portion of the form. See 20 C.F.R. §10.211(a).

c. Right of Election. The agency will notify the employee of the right to elect COP or to use annual or sick leave or LWOP if the injury is disabling, and advise the employee that leave used counts against the 45-day COP period, per 20 C.F.R. §10.211(b).

d. Need for Medical Evidence. The agency will notify the employee of the need to submit medical evidence of a disabling traumatic injury within 10 calendar days of the date disability begins, or pay may be terminated. The agency should also supply the employee with a Form CA-17 (Duty Status Report) for completion by the physician providing medical care.

e. Controversion. The agency will inform the employee whether COP will be controverted and, if so, whether pay will be terminated, and the basis for such action. The reasons must conform to those indicated in paragraph 7 below. The agency will also explain the basis for controversion (if any) on Form CA-1 or by separate narrative report, per 20 C.F.R. §10.211(c). See paragraph 7 in this chapter for information pertaining to the controversion of COP.

f. Submission of Information. Form CA-1, fully completed by both the employee and employing agency, together with all other pertinent information and documents, must be submitted to the OWCP by the employing agency within 10 working days following the agency's receipt of the completed form from the employee. See 20 C.F.R. §10.211(d). In addition, the official superior shall submit any additional reports which the OWCP requires.

g. Return to Duty. The agency is responsible for advising the claimant of his or her obligation to return to work as soon as possible in accordance with the medical evidence.

h. Termination of COP. The agency will terminate COP when disability ends, the 45-day period expires, or the employee returns to work. See 20 C.F.R. §10.222. See paragraph 10 in this chapter for information pertaining to the termination of COP.

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7. Controversion of COP. As stated in 20.C.F.R. §10.221, the employing agency may controvert a claim on the basis of the information submitted by the employee or secured on investigation. ("Controvert" means to dispute, challenge, or deny the validity of the claim.)

To controvert the claim, the agency must complete the indicated portion of Form CA-1 and submit detailed information in support of the controversion to the OWCP. Even though a claim is controverted, the employing agency must continue the employee's regular pay unless one of the conditions set forth below is met, in which case the employing agency shall not pay COP. In all other cases, the employing agency may controvert an employee's right to COP, but the employee's regular pay shall not be interrupted during the 45-day period unless the controversion is sustained by the OWCP and the employing agency is so notified.

a. As outlined in 20 C.F.R. §10.200(d) and based on the employee's status (see paragraph 4 in this chapter), COP is not payable in the following instances:

(1) The claimant's status as an employee is defined by 5 U.S.C. 8101(1)(B) or (E), which refers to persons serving without pay or nominal pay, and to persons appointed to the staff of a former President; or

(2) The employee is enrolled in the Civil Air Patrol, Peace Corps, Job Corps, Youth Conservation Corps, a Work Study Program, or a similar program.

b. As outlined in 20 C.F.R. §10.220, the employer can controvert COP in the following instances:

(1) The disability is a result of an occupational disease or illness, not the result of a traumatic injury.

(2) The employee is neither a citizen nor a resident of the United States or Canada (i.e., a foreign national employed outside the United States or Canada).

(3) The injury was not reported on a form approved by the OWCP within 30 days following the injury.

(4) The employee initially reported the injury after employment was terminated.

(5) The injury occurred off the employing agency's premises, and the employee was not engaged in official "off-premises" duties.

(6) The injury resulted from the employee's willful misconduct, the employee's intention to bring about the injury or death of himself or herself or of another person, or the employee's intoxication by alcohol or illegal drugs. See generally 5 U.S.C. 8102 (a) (1)-(3). Intoxication includes any controlled substance obtained or used without proper medical prescription.

(7) Work stoppage first occurred 45 days or more following the injury.

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8. Counting COP Days. 20 C.F.R. §10.215 outlines how the OWCP computes the number of COP days that have been used.

a. The 45 days during which pay may be continued are counted as calendar days, not work days.

b. The period begins with the first day the claimant begins to lose time from work after the date of injury, provided that it begins within 45 days of the traumatic injury, unless the injury occurs before the beginning of the work day. The employing agency will keep the employee in a pay status or grant administrative leave for any fraction of a day or shift lost on the date of injury, with no charge to the 45-day period. If the injury occurs before the work shift begins, the date of injury may be charged as the first day of the 45-day period of COP.

c. If the employee stops work for a portion of a day or shift other than the date of injury, such day or shift will be counted as one full calendar day for purposes of counting the 45 days of COP.

(1) The employee is only entitled to COP for the hours lost due to the work injury (and not the entire day or shift) if work is available for the remaining partial shift.

(2) If the employing agency does not allow the employee to work a partial shift, the employee is entitled to COP for the entire shift.

d. Regular days off are included if COP has been used on the regular work days immediately preceding or following the regular day(s) off and medical evidence supports disability.

e. Leave used during a period when COP is otherwise payable is counted toward the 45-day COP maximum as if the employee had been in a COP status.

f. Delayed Disability. An injury which does not immediately disable the employee or require medical care may later cause disability and/or require medical treatment. Provided that the claimant reported the injury on a form approved by OWCP within 30 days following the injury, his or her entitlement to COP must begin within 45 days of the date of injury, whether its use results from disability due to the original injury or the need for medical care. However, where continuing days of COP bridge the 45th day, pay may be continued until entitlement is exhausted or the claimant returns to work.

In cases where the claimant is not immediately disabled, the employee should complete Form CA-1 in the same manner as if the injury were immediately disabling and indicate on the form that he or she is continuing to work. The supervisor should complete the employing agency's portion of Form CA-1, except items which concern work stoppage. If no medical expense has been incurred or is expected, the supervisor should place the CA-1 in the employee's personnel folder. If disability subsequently occurs or medical care becomes necessary, the supervisor will retrieve the Form CA-1 and complete items concerning work stoppage, noting on the form the date these items were completed to clarify the reason for the delay in submitting the form. The form should be transmitted to the OWCP in the usual manner, and pay should be continued as described above, as long as 45 days have not elapsed from the date of injury.

g. Recurrence of Disability. If an employee returns to work following a work stoppage without using all 45 days of COP and then suffers a recurrence of disability within 45 days of the first return to duty, he or she should submit a completed Form CA-2a and may elect to use the remaining days of COP. See 20 C.F.R. §10.207.

(1) Time lost on the day of injury that is charged to administrative leave is considered a work stoppage, whether the time is used to obtain medical treatment or for disability. If the time away from work is so minimal that no administrative leave is charged, such as a brief visit to the health unit, this is not considered a work stoppage for the purpose of counting time.

(2) If the 45-day entitlement has been exhausted, or the recurrence begins more than 45 days after the employee first returned to work, the employing agency may not pay COP. Rather, the employee should claim compensation for wage loss on Form CA-7.

(3) COP is paid for the entire period of any continuous disability which extends beyond the 45-day limit as long as the 45 days have not been used. Any valid period of entitlement to COP for the injury must begin, however, within 45 days of the injury or of the first return to work after the injury.

For example, an employee is injured on January 1. The employing agency provides several hours of administrative leave, enabling the employee to obtain medical attention. On January 2, the employee works a full day. The employee is not disabled due to the injury until February 10, but is disabled and off work February 10, 11, and 12 and receives COP for those three days. The employee returns to work on February 13 and does not lose any further time from work due to the injury until March 17. On March 17, 18 and 19, he again loses time from work due to the disability. The 45-day period begins to run when the employee returned to work on January 2, because work stoppage occurred at the time of injury, even though it was covered by administrative leave. The employee is entitled to COP for the time lost in February, but is not entitled to COP for time lost in March, as it is more than 45 days since the first return to work.

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9. Interruption and Suspension of COP. Once COP is initiated, certain criteria must be met before COP may be interrupted or suspended.

a. Interruption of COP. The employing agency may interrupt COP, or refuse to retroactively convert previously-used leave to COP, if the claimant fails to submit medical evidence supporting disability within 10 calendar days after the claim is submitted (unless the employer's own investigation shows disability to exist).

(1) If COP is discontinued on the basis that insufficient medical evidence is received within 10 calendar days to support disability, and such evidence is later provided for the period in question, the CE should send a copy of the evidence to the agency with instructions to reinstate COP retroactive to the date of cessation, or to convert and restore previously used leave. See 20 C.F.R. §10.222(a)(1).

(2) A supervisor may have particular knowledge of the circumstances of the injury and choose not to terminate COP even if medical evidence has not been submitted. Therefore, the CE should not direct the agency to terminate COP 10 calendar days after the employee claimed COP. However, the CE is still responsible for advising the employee to submit supporting medical evidence and for denying the claim if the evidence is not submitted in a timely manner.

b. Suspension of COP. COP may be suspended based on refusal or obstruction of an OWCP-directed scheduled medical examination. If an employee refuses to submit to or obstructs an examination required by the Office under the provisions of 5 U.S.C. 8123(a), COP paid or payable during the period of the refusal is forfeited and is subject to recovery by the employing agency. Action to deny payment of COP (and any subsequent compensation) may be taken only if the claimant was advised of the provisions of 20 CFR §10.323 and 5 U.S.C. 8123(d) when the appointment was arranged. If a suspension occurs during the COP period, the CE must notify the agency immediately of the suspension and its effective date, per 20 C.F.R. §10.223.

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10. Termination of COP. COP should not be terminated until one of the following circumstances occurs:

a. Permanent Workers. Permanent workers are entitled to 45 calendar days of COP unless the employee is scheduled to be separated and suffers a traumatic injury on or before the date of separation. In this event, the employee will be separated regardless of the injury, and the employee is not entitled to COP after the date of separation, provided the date of termination is in writing prior to the date of injury.

b. Temporary Workers. Temporary workers are often provided with a notice of appointment which indicates the date on which the appointment is scheduled to expire. The employee is not entitled to COP after the date of expiration. If a temporary worker's term of employment is changed, written notice of the change is necessary to support termination of COP at an earlier date than the original expiration of appointment date.

c. Specific Occupations. Where termination of COP in a specific case depends upon the termination date of temporary or seasonal employment, the CE should determine the ending date of employment in accordance with the following:

(1) Seasonal Firefighters. The end date of employment corresponds with the end of the fire season in the geographical area as determined by the U.S. Forest Service.

(2) Emergency Firefighters. The end date of employment occurs the date on which other emergency firefighters in the employee's work group would be terminated due to cessation of activities.

(3) Census Enumerators. The end date of employment occurs on the date on which the employee's assignment was completed. This is usually the date of completion of the short-term enumerating project or survey for which the employee was hired.

(4) Temporary Postal Workers. Temporary postal workers are usually hired for a specific appointment. The end date of employment corresponds with the date the assignment would have ended were it not for the injury.

(5) Other seasonal or temporary workers. The end date of employment corresponds with the date the assignment would have ended were it not for the injury.

d. Claimant can return to Date of Injury job without restrictions based on medical evidence. COP is discontinued when the claimant returns to regular duty. COP is also terminated when the medical evidence supports the claimant is medically capable of returning to the date of injury job without restrictions based on the work-related medical condition.

e. Claimant can return to modified duty, and a modified duty assignment is provided to the claimant within the established work restrictions. COP should be terminated when a partially disabled employee returns to a full-time time modified position without official reassignment and without pay loss. The employee is also expected to accept any reasonable modified assignment which accommodates the established work restrictions as defined by his or her treating physician. Failure to accept the work offered will result in termination of COP. See paragraph 11 in this chapter.

f. Proximate Cause of Injury is Due to Intoxication. In order to uphold the termination of COP on the basis of intoxication by alcohol or illegal drugs, it must be established that the use of the substance was the proximate cause of the injury. Where use of an illegal drug is alleged, it must be shown that the substance was controlled and that it was obtained or used illegally. If these conditions are not met, the CE should advise the agency to pay COP on a retroactive basis.

g. Disciplinary Action. COP may be terminated when a preliminary notice of disciplinary action is issued before the injury and becomes final during the COP period. See 20 C.F.R. §10.222(b). The CE must ensure that the case record contains documentation that the preliminary notice of termination was in fact issued prior to the date of injury. Where these conditions are not met, the CE must advise the agency to continue pay.

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11. COP and Modified-Duty Assignments. Employing agencies are expected to provide their injured employees with modified alternative-duty assignments during COP whenever possible, and claimants are expected to accept such offers of work.

a. Acceptance of Modified Duty. If a modified duty assignment is accepted, the following considerations apply:

(1) COP is chargeable only when the claimant has been formally assigned to an established job which is normally paid at a lower salary and would otherwise result in loss of income to the employee. COP must be charged against the employee's 45-day entitlement if personnel action has been taken to:

(a) Assign or detail the employee to an identified position which is classified at a lower salary level than that earned by the employee when injured; or

(b) Change the employee to a lower grade, or to a lower rate of basic pay. See paragraph 12 below.

(2) The employing agency should promptly report an employee's return to modified duty. If the employee worked at a lower paying job but received the full pay of his or her normal job, the difference between the employee's regular pay and the pay for the light duty job represents COP paid.

b. Refusal of a Modified-Duty Assignment. Where the claimant refuses or fails to respond to an offer of work, the CE must determine whether the modified duty assignment is within the claimant's established work restrictions and provide the employee an opportunity to submit his or her reasons for the refusal. When the employing agency's modified-duty offer (including the description and physical requirements of the job) is received prior to or with the form CA-7, the CE must take the following actions:

(1) If the duties and physical restrictions of the modified assignment are found not to be within the claimant's medical restrictions as established by the employee's attending physician, the employing agency should be advised and instructed to reinstate COP retroactive to the date of termination. Compensation should be initiated, if appropriate, at the expiration of the COP period. If the work restrictions established by the attending physician are not on file, the employing agency should be asked to submit the medical documentation as soon as possible.

(2) If the duties and physical restrictions of the modified assignment are found to be compatible with the claimant's medical restrictions as established by the employee's attending physician, the employee must be provided with the opportunity to submit his or her reasons for the refusal within 30 days. Payment of compensation at the end of the COP period should be deferred pending the resolution of the issue, even if the claimant's response indicates the need for further development by the CE.

(a) If the claimant responds and the refusal is found to be justified, the agency should be instructed to reinstate COP retroactive to the date of termination, and compensation should be paid for any period of disability after COP ended.

(b) If the refusal is not found to be reasonable or justified (or the claimant does not respond within the 30-day period), a formal decision terminating entitlement to both COP and compensation is to be issued. Termination of entitlement is effective the date the agency terminated COP, rather than the date of the formal decision. The date of the agency's termination of COP should be the date the job was available to the employee.

(3) If the employing agency has terminated COP based on the employee's refusal of a modified-duty assignment, but the written offer (including the description and physical requirements of the job) is not received prior to or with Form CA-7, compensation should be initiated as claimed. Once initiated, compensation should continue, as appropriate, until a final determination is made concerning the refusal of the offered work.

(4) If it is subsequently determined that the refusal was not reasonable, a formal decision should be issued which denies COP as of the date the agency terminated pay (since the agency's action was proper), and terminates the employee's entitlement to compensation as of the beginning date of the next periodic roll cycle.

If payment was made on the supplemental roll, the date of termination should be the date of the employee's refusal (or, if the employee did not respond, the end of the 30-day period allowed for response), provided compensation has not been paid beyond that date. If compensation has been paid beyond that date, it should be terminated as of the end of the last period for which payment was made.

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12. Payment of COP. An employee is entitled to payment of COP at his or her regular pay rate, which is the average weekly earnings, including premium, night or shift differential, holiday pay, Sunday premium pay except to the extent prohibited by law, or other extra pay, including FLSA pay for firefighters, emergency medical technicians, and others who earn and use leave on the basis of their entire tour of duty. See 20.C.F.R. §10.216(a).

a. Overtime Pay. Overtime pay may not be included in computing the pay rate for COP purposes. See 20 C.F.R. §10.216(a)(1).

b. Within-Grade Increases and Promotions. Since COP is payment of salary and not compensation, additional money which the employee would have received but for the injury is included. 20 C.F.R. §10.216(a)(2).

c. Regular Work Schedules. For an employee in the regular work force who works the same number of hours per week, the weekly pay rate equals the number of hours regularly worked each week times the hourly pay rate on the date of injury, in accordance with the following formula: Weekly Hours x Hourly Rate = Employee's average weekly earnings. This applies to both full-time and part-time employees working on either a permanent or temporary basis, per 20 C.F.R. §10.216(b)(1).

d. Irregular Work Schedules. For a part-time employee, whether permanent or temporary, who does not work the same number of hours per week, the weekly pay rate is the average of the weekly earnings for the year prior to the date of injury, in accordance with the following formula: Total pay earned during one-year period prior to injury (excluding overtime), divided by 52 weeks for the year prior to the injury (or prorated if employee worked less than a year). For purposes of this computation, a partial-work week is counted as an entire week. See 20 C.F.R. §10.216(b)(2).

e. Intermittent and Seasonal Workers. For intermittent and seasonal workers, whether permanent or temporary, who do not work either the same number of hours or every week of the year, the weekly pay rate is the average of the employee's earnings in Federal employment, excluding overtime, during the year prior to the injury. The average annual earnings, however, must not be less than 150 times the average daily wage earned within one year prior to the date of injury. The pay rate should be computed using both the year prior and average weekly earnings formulas. The higher result should be accepted as the pay rate for COP. See 20 C.F.R. §10.216(b)(3).

(1) Year Prior Calculation: The employee's weekly earnings during the year prior to the injury is calculated by dividing total pay in Federal employment (excluding overtime) by total number of weeks worked.

(2) Average Weekly Earnings Calculation: To determine the average weekly earnings, multiply 150 times the average daily wage earned during the year prior to the injury, divided by 52 weeks.

f. National Guard and Military Reserve Members. Where membership in the National Guard or the military reserve is a condition of employment, COP includes military drill and field training pay only in the limited circumstances where there is an actual loss of military pay. For example, an individual who at the end of the year has not completed the physical training requirements sustains an injury and loses military pay, such loss of military pay must be included in the pay rate for COP purposes. On the other hand, if the agency is able to provide alternative military training activities to injured Federal employees such that no loss of military pay occurs during the 45-day COP period, the military pay component is not included in the COP pay rate.

g. Postal Service. Postal Service employees have a three-day waiting period before COP will be granted. They may use annual leave, sick leave, or leave without pay during that period, except that if the disability exceeds 14 days or is followed by permanent disability, the Postal Service employee may have that leave restored. See 20. C.F.R. §10.200(c). The three waiting days count toward the 45 calendar-day COP entitlement period. Time lost for medical treatment only does not count as work disability and does not count as a waiting period day, and the employee must elect COP on the front of Form CA-1 to request that any previously-used leave be changed to COP.

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13. COP and Leave Election. An employee may use annual or sick leave to cover all or part of an absence due to a work injury, but the employee's compensation for disability does not begin, and the waiting period specified by 5 U.S.C. 8117(1) does not begin, until COP terminates and any use of leave ends.

a. An employee may elect COP by checking the appropriate box on the front of the CA-1 form. A CA-1 without an election between COP and leave should be construed as an election for COP.

b. Entitlement to COP may not be delayed or extended beyond the 45-day period by the use of sick or annual leave. Any leave used during the period of eligibility counts towards the 45-day maximum entitlement to COP.

c. If OWCP denies a claim for COP (or denies the claim in its entirety), the amount paid will be charged to sick or annual leave at the option of the employee, or shall be deemed an overpayment within the meaning of 5 U.S.C. 5584. See 20 C.F.R. §10.224.

d. If a third-party credit has been established, the OWCP should be contacted before paying COP.

e. Leave Restoration. A sick or annual leave election during the 45-day COP period is not considered irrevocable. A leave request slip is not considered a selection of leave when determining COP eligibility. If an employee has elected sick or annual leave for the period and then wishes to elect COP, the agency is required to make such a change on a prospective basis (from the date of the employee's request). If the employee makes a request to change sick or annual leave to COP, the request must be made no later than one year from the date the leave was used or the date the claim was approved, whichever is later. The claimant must provide medical evidence of disability due to the injury. Upon receipt of a timely request, the employing agency is to convert the sick or annual leave to COP and restore the leave to the employee.

If the leave balance of an employee who elects leave is not sufficient to cover all disability during the 45-day COP period, COP may be elected retroactive to the leave exhaustion date and continued wage loss began. When leave is exhausted, the agency is required to convert the employee to COP status immediately without the employee's written election.

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14. Formal Adjudication of COP. The CE should give priority to cases in which COP has been terminated to determine whether the employing agency's action is correct, taking the following steps:

a. COP Entitlement Development. If the employing agency improperly controverted COP, with or without stopping the employee's pay, the CE will send Form Letter CA-1038 (or equivalent) to the agency, or include an explanation in the development letter, indicating that the agency should continue payment of the COP pending formal adjudication of the claim.

If additional information is needed prior to adjudicating the claim for COP, the CE shall release an appropriate letter requesting additional information.

b. COP Approval. If the claimant meets the requirements for COP, and if the employing agency did not controvert the claim, a formal approval of COP is not needed, as the claimant is already receiving COP.

If COP was controverted by the employing agency but COP is in fact payable, the CE should release an acceptance letter which specifically includes a provision for approval of COP, indicating the accepted condition(s) and notifying the claimant of the procedures to follow for claiming compensation following the period of COP. The CE must notify the employing agency when a controverted claim is accepted and COP is approved and must provide a sufficient explanation as to why the employing agency's controversion of the claim was not upheld. This requirement applies both to controversions erroneously based on one of the nine regulatory exclusions and to those founded on other objections. This also applies to situations where the agency fails to provide a specific reason or argument for the controversion.

c. COP Denial. If COP is denied, the CE will release a formal decision denying COP with appeal rights.

(1) If the entire case is denied, a formal Notice of Decision is issued to the claimant, with a copy to the employing agency. COP paid may then be charged, at the employee's option, to sick or annual leave, or be deemed an overpayment subject to collection by the agency. This matter will be resolved by the employing agency without further input from the OWCP.

(2) If the case is accepted but COP must be denied, a formal denial of COP that includes appeal rights, Form Letter CA-1050 (or equivalent), should be sent to the claimant and employing agency.

If only a portion of the period of COP can be approved because the employee did not meet his or her responsibilities for eligibility, this decision may be used to deny the remaining portion. The formal decision should state the dates for which COP is approved, and explain why the other dates claimed are denied.

d. COP Approval for Jurors. In a case where a juror who is also a Federal employee is eligible for COP, the CE should forward a copy of Form CA-1 to the employing agency, advising it to continue the employee's pay beginning the day after the date of the employee's termination of service as a juror.

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15. Initial Claims for Compensation Following COP. If medical evidence demonstrates that disability is expected to continue beyond 45 days, the employer should give Form CA-7 to the employee by the 30th day of the COP period and submit the completed form to the OWCP by the 40th day of the COP period (if a completed form is returned by the employee). See 20 C.F.R. §10.111(b).

In order to ensure that claimants are not without income during the period immediately following payment of COP, the CE must advise the claimant and employing agency promptly of any necessary information needed in order to pay the claim. Note though that the claimant is primarily responsible for submitting CA-7 forms to the employing agency and furnishing medical evidence that substantiates disability for the period claimed. See 20 C.F.R. §10.102.

a. If an initial CA-7 is received immediately following the COP period, the CE may use the authority provided by the FECA to approve a payment for a period not to exceed 15 days into the future (15 days post termination of COP), if disability for the period is medically supported and the employing agency verifies that the claimant has not returned to work at the time the payment is processed.

This authority does not extend to occupational disease claims and applies only to the initial 15-day period following COP in cases of traumatic injury.

(1) The CE should call the employing agency to obtain or verify the information needed to approve payment, and should request written confirmation of the information provided verbally. The employee and the agency should be advised that further payment requires a formal claim and appropriate supporting evidence, as the Office is not obligated to continue paying compensation without such submission.

(2) Payment may be approved even if the Form CA-7 received was signed prior to the period claimed. If the claim was submitted in advance, however, the CE should verify by telephone that the employee has not returned to work at the time of processing the payment.

(3) If a payment is processed with future dates, the CE should advise the claimant in writing of his/her obligation to advise the OWCP immediately if he/she returns to work, since an overpayment could be created.

(4) The three-day waiting period stipulated by 5 U.S.C. 8117(1) must be considered when payments are approved. When the period ends on the date the CE is setting up payment, and medical evidence clearly establishes that disability will extend 15 days or more after the beginning of wage loss, the CE may extend the period approved for payment through the 15th day if such an extension will eliminate the need to withhold waiting days.

(5) Payment should not be authorized if the attending physician states that the employee can return to duty, but the employee does not return, makes an unauthorized change in physicians, and subsequently submits medical evidence of disability from the second physician.

b. Subsequent Claims for Compensation. The discretion to process a payment for dates into the future applies only to initial claims for compensation following COP in traumatic injury cases, as outlined above.

Consistent with the DFEC's regulations at 20 CFR §10.102(b), Form CA-7 should be used to claim compensation for any additional periods of disability. If disability continues, the claimant should submit a Form CA-7 each two weeks until otherwise instructed by the OWCP. The employing agency must verify work/leave status when submitting these forms, and this can only be done once the period has passed.

See FECA PM 2-901 for more detailed information on processing compensation payments.

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Chapter 2-0808, Schedule Awards and Permanent Disability Claims

Paragraph and Subject

Date

Trans. No.

Table of Contents

02/13

13-06

1. Purpose and Scope

02/13

13-06

2. Impairment and Disability

02/13

13-06

3. Permanent Total Disability

02/13

13-06

4. Entitlement to Schedule Awards

02/13

13-06

5. Evaluation of Schedule Awards

02/13

13-06

6. Obtaining Medical Evidence

02/13

13-06

7. Schedule Award Payments

02/13

13-06

8. Schedule Award Decisions

02/13

13-06

9. Claims for Increased Schedule Awards

02/13

13-06

10. Disfigurement

02/13

13-06

11. Schedule Awards after Termination of Compensation and Medical Benefits

02/13

13-06

12. Schedule Awards and Refusal of Suitable Work

02/13

13-06

Exhibit 1: Percentage Table for Schedule Awards

02/13

13-06

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1. Purpose and Scope. This chapter outlines the difference between impairment and disability, and focuses primarily on the procedures for the development, adjudication and payment of schedule award claims.

PM 3-0700 should also be consulted for further information on schedule awards.

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2. Impairment and Disability. Impairment is a medical concept, and any evaluation of impairment must rest upon medical evidence. Disability, on the other hand, is an economic concept which reflects a claimant's inability to earn wages comparable to those received before the injury. The degree of impairment is a major factor in evaluating disability, but it is not the only one; others include age, education, and work history. The kinds of permanent disability and impairment are as follows:

a. Permanent Total Disability (PTD). Claimants are rarely considered to have disability which is permanent and total in nature. Only in catastrophic injuries or long-standing chronic conditions should this course be considered, and then only after all attempts to reemploy and/or rehabilitate the claimant have been exhausted. See 5 U.S.C. 8105.

b. Permanent Partial Disability (PPD). In disability which is permanent in nature but only partial, compensation is based on the difference between the wages earned at the time of injury, disability, or recurrence, and the wages the claimant is capable of earning after the injury. This difference is called loss of wage-earning capacity (LWEC). See 5 U.S.C. 8106.

c. Permanent Impairment. This term is defined as the loss or loss of use of a part of the body, whether total or partial. See 5 U.S.C. 8107 and 20 C.F.R. §10.404.

The degree of impairment is established by medical evidence and expressed as a percentage of loss of the member involved. Permanent impairment may originate either within the affected member or in another part of the body. For instance, a back injury may result in impairment to a leg, for which a schedule award would be payable. See, Veronica Williams, 56 ECAB 367 (2005) (ECAB noted that the members and functions listed in the schedule award provision and the regulation do not include impairments of the back or the body as a whole. A claimant, though, may be entitled to a schedule award for a permanent impairment to the leg if the cause of the impairment originated in the spine citing: John Litwinka, 41 ECAB 956 (1990), which noted that Section 8107(a)(1) of the FECA states a schedule award is "payable regardless of whether the cause of the disability originates in a part of the body other than that member."). A claimant may also receive an award for more than one part of the body in connection with a single injury.

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3. Permanent Total Disability. The FECA provides that loss of both hands, arms, feet, or legs, or the loss of sight of both eyes is prima facie evidence of permanent total disability. See 5 U.S.C. 8105(b). It does not mean, however, that a claimant in this medical condition should be automatically declared permanently and totally disabled. Some individuals may be able to work despite such severe medical conditions, and the possibility of rehabilitation and/or reemployment should be explored before any declaration is made.

In very few other cases is it necessary or desirable to make a determination of permanent and total disability. Such a determination confers no additional benefit on the claimant, and it could result in forfeiture of other rights that a claimant may possess under other Federal laws. Therefore, it is usually sufficient to continue payments for temporary total disability (TTD), even where efforts to reemploy and/or rehabilitate the claimant have failed.

In the rare instance where such a determination is appropriate, it should be based on the evaluations of the attending physician or other physicians who have examined the claimant. Such a determination does not supersede any award which may be payable for a schedule impairment. Whenever a case involves both permanent total disability and schedule impairment, the CE should pay the schedule award and then continue compensation for permanent and total disability at the expiration of the schedule award. It may be necessary to first obtain an election if the claimant is also receiving an annuity from the Office of Personnel Management (OPM).

Note - There is no specific case status to differentiate or classify a claimant as permanently, totally disabled as defined by 5 U.S.C. 8105(b).

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4. Entitlement to Schedule Awards. Permanent impairment to certain parts of the body will entitle the claimant to an award of compensation payable for a set number of weeks. The Claims Examiner (CE) should monitor medical reports for the possibility of eventual impairment to a schedule member and the date by which maximum medical improvement (MMI) is expected. If it appears that a schedule award may be payable, the CE should advise the claimant via Form CA-1053, or the equivalent, of his or her possible entitlement to such an award.

a. General Considerations.

(1) The length of the award is determined by the provisions of 5 U.S.C. 8107, which also lists the parts of the body which may be considered for such an award. Additional parts of the body which may be considered are listed in 20 CFR §10.404.

(2) In some instances a schedule award may be payable even if the claimant had a pre-existing loss or loss of use of 100 percent of a member or function of the body. Cases of this type should be developed to determine the prior usefulness of the member or function and whether the injury in Federal employment has diminished any such usefulness, in whole or in part.

(3) A schedule award is payable consecutively but not concurrently with an award for wage loss for disability for the same injury. See, e.g., S.W., Docket No. 10-2071 (issued July 11, 2011). However, a schedule award may be paid concurrently with salary reimbursement under the Assisted Reemployment Program. If the injury occurred on or after September 13, 1957, the schedule award may be paid concurrently with benefits under the U. S. Civil Service Retirement Act.

(4) If a claimant loses wages to obtain medical treatment during the period of a schedule award (e.g. claims hours due to a medical appointment with the treating physician), compensation for the hours lost may be paid concurrently with a schedule award, as time lost for medical appointments is not considered disability. As noted above, however, time lost for disability surrounding the appointment (if any) cannot be paid concurrently with a schedule award.

(5) A schedule award for one injury may be paid concurrently with compensation for wage loss paid for another injury, as long as the two injuries do not involve the same part of the body and/or extremity. For example, a claimant is currently receiving a schedule award for 10% permanent partial impairment of the right arm due to a work-related right rotator cuff tear. The claimant files for total disability under another claim for the same period due to undergoing right carpal tunnel surgery. Compensation claimed for total disability cannot be paid since compensation involves the same extremity, the right arm. See J.B., Docket No. 08-1178 issued December 22, 2008; and V.P., Docket No. 07-1158 issued December 17, 2007.

(6) Lump sum schedule awards. In certain situations, a claimant may be entitled to receive a lump sum payment of his or her schedule award. Lump sum schedule awards are discussed in FECA PM 2-1300.

(7) Schedule awards unpaid at death. Under 5 U.S.C. 8109, if an individual has sustained impairment compensable under section 8107(a) of this title; has filed a valid claim in his lifetime; and dies from a cause other than the injury before the end of the period specified by the schedule, the compensation specified by the schedule that is unpaid at his death, whether or not accrued or due at his death, shall be paid in accordance with the order of precedence specified by the statute. See Sandra Henley, Docket No. 00-1619 issued April 4, 2002. (The ECAB affirmed the denial of a schedule award benefit to a widow where her husband who was injured in a terrorist bombing had not filed a claim for a schedule award during his lifetime. The ECAB found a valid claim, in writing and with words of claim, filed by the employee or someone on his behalf must be made during the employee's lifetime.)

b. History of Entitlement. Entitlement to schedule awards has been affected by various legislative changes over the years. Following is a description of coverage afforded by the FECA during various periods according to date of injury:

(1) Prior to December 7, 1940. No provision for schedule award.

(2) December 7, 1940 to September 12, 1957. Schedule award for 100 percent loss or loss of use of major members only; injury must be to schedule member itself. No entitlement to compensation for loss of wage-earning capacity (LWEC) after expiration of the award. (On October 14, 1949, the law was amended such that schedule awards were payable retroactively to October 14, 1948 for "minor" impairments, such as simple fractures, and retroactive to January 1, 1940 for "major" impairments, such as amputations of hands or feet or loss of vision.)

(3) September 13, 1957 to July 3, 1966. Broadened coverage such that schedule impairment did not have to be the only residual of the injury. Permanent impairment had to be confined to the schedule member, however, so that if any other "significant disability" existed (i.e., any which would require treatment or cause loss of wage-earning capacity), no schedule award was payable. However, an employee who had a significant permanent impairment of a portion of the body not covered by the schedule provisions (i.e. back) in addition to the loss or loss of use of a schedule member (i.e. arm) could not receive both a schedule award for the schedule member in addition to compensation for the LWEC of the non-schedule member. In such a case, compensation could only be paid on the basis of LWEC.

(4) July 4, 1966 to September 6, 1974. Increased coverage to compensate for LWEC after schedule award ended; schedule was payable regardless of location of other "significant disability." Schedule award available regardless of whether the injury resulted in impairment to a non-scheduled member (i.e. back) in addition to the loss or loss of use of a schedule member (i.e. arm). Provision explicitly permitted payment of both schedule award and disability compensation in such circumstances. (Provision was not made retroactive to any injuries sustained prior to July 4, 1966.)

(5) September 7, 1974 to present. The FECA amended to provide for schedule awards payable for internal organs specified by the Secretary, in addition to those indicated in the FECA. See 5 U.S.C. 8107(22). The Secretary has added by regulation the following organs: the breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina. 20 C.F.R. §10.404.

(6) Effective August 29, 2011, the Secretary added by regulation the skin as a new schedule member, for up to 205 weeks of compensation, for injuries sustained on or after September 11, 2001. 20 C.F.R. §10.404(b).

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5. Evaluation of Schedule Awards.

a. Method of Evaluation. For impairment ratings calculated on and after May 1, 2009, the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment, Sixth Edition, should be used to report findings except as noted below. (Also, see FECA PM 3-0700.)

b. Evidence Required. To support a schedule award, the file must contain competent medical evidence which:

(1) Shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred ("date of maximum medical improvement" or MMI);

(2) Describes the impairment in sufficient detail for the CE to visualize the character and degree of disability; and

(3) Gives a percentage of impairment based on a specific diagnosis, not the body as a whole (except for impairment to the lungs). In members with dual functions, the physician should address both functions according to the AMA Guides.

c. Special Considerations.

(1) Impairment to the lungs should be evaluated in accordance with the Guides insofar as possible. The percentage of "whole man" impairment will be multiplied by 312 weeks (twice the award for loss of function of one lung) to obtain the number of weeks payable; all such awards will be based on the loss of use of both lungs.

In cases involving anatomical loss by traumatic injury or surgery, the evaluation will also be based on loss of lung tissue by weight or volume, and the award will be based on these factors if it results in a greater percentage of loss than one based on loss of respiratory function. Anatomical loss awards will be made for one or both lungs as appropriate.

(2) Impairment due to pain. Impairment applicable to pain is inclusive as a component of the medical condition (diagnosis) and not measured separately unless the pain does not correlate with objective findings or body part dysfunction. Chapter 3 of the Guides discusses evaluation of pain if it is not classifiable in the diagnosis based impairment. An example would be fibromyalgia, or pain due to a sprain where no objective findings or identifiable abnormalities are noted. In no circumstances, though, should the pain-related impairment developed under Chapter 3 be considered as an add-on to impairment determinations based on the criteria listed in Chapters 4 – 17. When pain is the sole impairment, the physician should have the claimant complete Appendix 3-1 of the AMA Guidelines, Sixth Edition - Pain Disability Questionnaire (PDQ), or obtain the necessary information in some other format.

(3) Impairment resulting from an injury to the spine. While the FECA does not allow payment for impairment to the spine, a schedule award can be paid for the extremities if a spinal injury leads to impairment of the arms or legs. Impairment to the upper or lower extremities that is caused by a spinal injury should be rated consistent with the article "Rating Spinal Nerve Extremity Impairment Using the Sixth Edition" in the July/August 2009 edition of the The Guides Newsletter published by the AMA. This newsletter, which has been reproduced with the permission of the AMA, is Exhibit 4 in PM 3-0700.

(4) Impairment of the skin. With the most recent regulatory update at 20 C.F.R. §10.404, effective August 29, 2011, a schedule award can be paid for impairment to the skin, for up to 205 weeks of compensation, for injuries sustained on or after September 11, 2001. According to the AMA Guides, the maximum allowable whole-person impairment for the skin is 58%. The final impairment payable for the skin is determined by dividing the actual whole person impairment of the claimant by the maximum allowable (58%) and then converting that number to a final percentage.

Chapter 8 in the AMA Guides outlines specific criteria to be considered when calculating permanent impairment of the skin. In assessing skin impairment, the physician must evaluate the severity of the condition; the frequency, intensity, and complexity of the medical condition and treatment regimen; and the impact of the condition on the ability to perform Activities of Daily Living (ADLs). ADLs include bathing, dressing, eating, personal hygiene, etc. Burden of Treatment Compliance (BOTC) must also be considered, as it can be significant for skin disorders. BOTC includes, but is not limited to, the following kinds of activities: soaking affected skin daily; applying topical medications on a regular basis; avoiding sun exposure; and attending phototherapy sessions on a routine basis.

A schedule award for the skin can be paid in addition to any disfigurement award.

d. Impairment ratings for schedule awards include those conditions accepted by the OWCP as job-related, and any pre-existing permanent impairment of the same member or function. If the work-related injury has affected any residual usefulness in whole or in part, a schedule award may be appropriate. There are no provisions for apportionment under the FECA. Rated impairment should reflect the total loss as evaluated for the schedule member at the time of the rating exam. See Raymond E. Gwynn, 35 ECAB 247, 253 (1983).

e. Adjoining Members. In general, loss of less than one digit should be computed in terms of impairment to the digit itself (thumb, finger, etc.), and loss of two or more digits should be computed in terms of impairment to the whole hand or foot. Where the residuals of an injury to a member of the body specified in the schedule extend into an adjoining area of a member also enumerated in the schedule, such as an injury of a finger into the hand, of a hand into the arm or of a foot into the leg, the schedule award should be made on the basis of the percentage loss of use of the larger member. See Charles B. Carey, 49 ECAB 528 (1998) (ECAB remanded the case, so that the OWCP could consider the physician's report and disability rating sheet to determine whether the impairment in appellant's right finger resulting from his accepted employment injury extended into his right hand, resulting in an impairment of the right hand).

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6. Obtaining Medical Evidence. The CE should review the case file to determine if medical evidence meeting the criteria in paragraph 5(b) above has been submitted. The attending physician should perform the evaluation whenever possible; however, the claimant may submit an examination from another physician if the regular attending physician does not wish to or cannot provide an impairment rating.

a. If the claimant requests a schedule award but has not submitted such evidence, the claimant should be requested to submit it. The report of the impairment evaluation should provide the evidence cited in paragraph 5(b) above and include the following:

(1) A detailed report that includes history of clinical presentation, physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was calculated.

(2) Impairment due to amputation is based on the level of the amputation. The physician's report must include functional history, physical examination and clinical studies. Impairment based on proximal diagnosis or range of motion may be combined with the amputation impairment. However, the physician must explain the reasoning for combining the additional impairment.

b. If the claimant has not reached MMI, but evidence establishes that there may be impairment, the CE should advise the claimant in writing that once MMI is established he/she should submit the medical evidence establishing MMI and request that the claim for the schedule award be re-reviewed.

c. If the claimant does not provide an impairment evaluation from his/her physician when requested, and there is no indication of permanent impairment in the medical evidence of file, the CE may proceed with a formal denial of the award. If in doubt, the CE should obtain an opinion from the DMA prior to such a denial.

d. If the claimant does not provide an impairment evaluation from his/her physician when requested, and there is an indication of permanent impairment in the medical evidence of file, the CE should refer the claimant for a second opinion evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion examination to determine if the evidence in the file is sufficient for the DMA to provide an impairment rating.

If the case is referred for a second opinion, the report should contain the information described in 6a above. If it does not contain this information, clarification with the second opinion should be sought.

e. If the claimant's physician provides an impairment report, or after the second opinion is received, the case should be referred to the DMA for review.

f. District Medical Advisor (DMA) Review. After obtaining all necessary medical evidence, the file should be routed to the DMA for opinion concerning the nature and percentage of impairment.

(1) When referring the case to the DMA, the CE should ask the DMA to verify the calculations of the attending physician or second opinion examiner and determine the percentage of permanent impairment based on the standards outlined in the AMA Guides, Sixth Edition. The DMA should also be asked to provide the date MMI was reached. The DMA should provide rationale for the percentage of impairment specified. When more than one evaluation of the impairment is present, it is especially important for the DMA to provide such medical reasoning.

(2) The CE should review the DMA's findings and take follow-up action.

(a) If the DMA neglects to provide rationale for the percentage of impairment specified, the CE should request a clarification or a supplemental report from the DMA.

(b) If the DMA selects a retroactive MMI date (i.e. one preceding the date of the impairment evaluation), medical rationale should be provided. Usually MMI dates selected based solely on criteria such as "one year post surgery or return to full duty status" should not be considered sufficiently rationalized unless the DMA uses the findings of examination from such a date to calculate the impairment. If sufficient rationale is not present, the CE should request a supplemental report from the DMA.

(c) If the DMA believes that the impairment has not been correctly described by the claimant's physician or the second opinion examiner, the DMA should specify the missing information so that it can be requested. The response should then be routed back to the DMA for further opinion concerning impairment. If the missing information cannot be secured, a new or supplemental evaluation should be obtained.

(d) If the DMA and examining physician are in agreement as to the work-related permanent impairment, the schedule award should be processed.

(e) If the DMA provides a detailed and rationalized opinion in accordance with the AMA Guides but does not concur with the claimant's physician or second opinion impairment rating, and the claimant has been provided an opportunity to submit the necessary evidence, the CE should weigh the medical opinions to determine if a conflict exists or whether the award can be paid based on the weight of medical evidence. See FECA PM 2-810 for a complete discussion on weighing medical evidence.

(f) The CE should not attempt to assign a different percentage of impairment than assigned by the DMA without the benefit of further medical clarification.

(g) If after reviewing the reports it is determined a conflict of medical opinion exists between the DMA and the claimant's physician or second opinion physician regarding work-related impairment, the CE should refer the claimant for an independent medical examination with a referee examiner to resolve the conflict. See FECA PM 2-0810 and 3-0500.

g. If a case has been referred for a referee evaluation to resolve the issue of permanent impairment, it is necessary to route the file to a new DMA to review the calculations to ensure that the referee physician appropriately used the AMA Guides. Where a referee examination is arranged to resolve a conflict created between a claimant's physician (or second opinion examiner) and the DMA with respect to a schedule award issue, the same DMA should not review the referee's report for proper application of the AMA Guides.

(1) The ECAB has held that while a DMA may review the opinion of a referee specialist in a schedule award case, the resolution of the conflict is the specialist's responsibility. The DMA cannot resolve a conflict in medical opinion. If necessary, clarification to the referee examiner may be needed. See Richard R. Lemay, 56 ECAB 341 (2005).

(2) In reviewing a referee report, the DMA should not:

(a) Resolve the conflict of medical opinion or attempt to clarify or expand the opinion of the medical referee. See K.O., Docket No. 10-745 (issued November 19, 2010).

(b) Telephone the specialist for clarification or elaboration of the report, as information obtained in this manner cannot be considered probative medical evidence, and inference of bias may result. See Carlton L. Owens, 36 ECAB 608 (1985).

(c) Comment that the facts on which the opinion is based are not in the Statement of Accepted Facts (SOAF), or that the report fails to address or resolve the issue, or that the opinion is speculative. All of these assessments are the CE's responsibility.

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7. Schedule Award Payments.

a. General Considerations.

(1) Any previous impairment to the member under consideration is included in calculating the percentage of loss except when:

(a) The prior impairment is due to a previous work-related injury and a schedule award has been granted for such prior impairment, in which case the percentage already paid is subtracted from the total percentage of impairment; or

(b) The VA has already paid a claimant for a previous impairment to the same member, in which case an election will be required if the VA has increased the percentage payable due to the injury in civilian employment. In this instance, an election will be required between the entire schedule award and all VA benefits prior to any increase and all VA benefits subsequent to the increase. Such an election should be offered only for the period of the schedule award, as any determination of LWEC will involve different entitlement and require a separate election. See PM 2-1000.

(2) The impairment computed for loss of two or more digits occasionally exceeds the percentage for the hand or foot; in such instances, the award should reflect the computation most favorable to the claimant. Similarly, the impairment computed for monaural loss of each ear occasionally exceeds the percentage for the binaural loss, and in such instances the award should reflect the computation most favorable to the claimant.

(3) If a recurrence is accepted for a period which overlaps a schedule award, it will be necessary to interrupt the schedule award in order to pay for the period of recurrence. If a recurrent pay rate is established, the claimant will be entitled to that rate for the balance of the schedule award after the period of disability attributable to the recurrence has ceased.

(4) A claimant who enters a vocational rehabilitation program during the course of a schedule award is entitled to receive compensation at the rate for TTD. This entitlement is satisfied by schedule award payments as well as those for TTD. It is therefore not necessary to interrupt a schedule award for payment of TTD unless the claimant is also receiving an annuity from OPM. In this case, the payments must be converted to TTD and an election must be obtained, as vocational rehabilitation services cannot be provided to an individual in receipt of such an annuity.

(5) If payment for TTD is interrupted to pay a schedule award, such TTD payments must be resumed at the end of the schedule if the claimant has not been reemployed or rated for LWEC at the time the award ends (see Goldie Washington, 31 ECAB 239 (1979)). Therefore, it is extremely important to establish the claimant's earning capacity before the award ends. It may also be necessary to obtain an election if the claimant is also receiving an annuity from OPM.

(6) If a schedule award extends for more than one year into the future, a periodic entitlement review should be conducted annually. At a minimum, this review should consist of releasing Form CA-1032 to determine the status of any dependents.

(7) If a claimant dies during the course of a schedule award from a cause other than the injury, payment for the remainder of the award may be made to his or her dependents as specified in 5 U.S.C. 8109. Such payment must be made at the 66 2/3 percent rate, rather than 75%, for the portion of the award that runs after the date of death. If no eligible dependents remain, the balance of the award may not be paid to the estate. If the claimant dies of a cause related to the injury, death benefits may be paid in accordance with 5 U.S.C. 8133, but the balance of the award is not payable to the survivors.

If at the time of the claimant's death a schedule award claim is being developed but has not yet been paid, the claimant's dependent(s) would be entitled to the entire payment of the award. (See Cheryl R. Holloway (Wryland R. Holloway), 54 ECAB 443 (Docket No. 02-2153, issued February 28, 2003). Such payment must be made at the 66 2/3 percent rate, rather than 75%, for the portion of the award that runs after the date of death (it is made at 75% from the date of MMI through the date of death).

b. Beginning Date of the Award. Schedule awards begin on the date of MMI, unless circumstances show a later date should be used.

(1) The ECAB has held that the determination of whether MMI has been reached is based on the probative medical evidence of record, and is usually considered to be the date of the evaluation by the attending physician which is accepted as definitive by the OWCP. See Mark A. Holloway, 55 ECAB 321 (2004).

(2) The MMI date is determined solely on the basis of the medical evidence; however, a subsequent date may be chosen to start the award if the MMI date falls within a period of compensable disability such that converting disability payments into a schedule award would be disadvantageous to the claimant. See Franklin L. Armfield, 28 ECAB 445 (1977).

(3) A retroactive determination of the date of MMI is not per se erroneous. When the medical evidence establishes that the employee did in fact reach maximum improvement by such date, the determination is proper. Rationale for a retroactive MMI date such as "one year post surgery or return to full duty status" should not usually be considered sufficient unless the findings of examination from such a date are used to calculate the impairment.

(a) If a date in the past will result in conversion of a period paid for TTD into payment for schedule award, it may not be chosen unless the record contains persuasive proof that MMI had in fact been reached on that date. The claimant must be informed of the right to receive benefits from the Office of Personnel Management (OPM) during the period. See J.C., 58 ECAB 258 (2007); Marie J. Born, 27 ECAB 623 (1976).

(b) If the date of MMI is in the past and the CE converts a period of TTD to schedule award payments, the calculation of the period of TTD being converted should be based on monetary values rather than number of days, and the file should be documented to show this calculation.

(c) See sub-paragraph e. in this section for information on the effective pay rate date to use in this instance.

c. Percentage of Loss. This percentage is applied to the number of weeks specified in section 8107 of the FECA or in 20 CFR §10.404. The resulting number of weeks is multiplied by the weekly wage and the compensation rate. For example,

10% (the actual percentage of impairment) X 244 weeks (100% loss of use of the hand) = 24.4 weeks.

24.4 weeks x $400 (weekly pay rate) x 75% (compensation rate) = $7320.

See Exhibit 1 (Percentage Table for Schedule Awards), which lists the number of weeks and days by percentage and schedule member.

d. Period of Award. Given a starting date and the percentage of loss (the number of days of entitlement), the compensation system will automatically compute the ending date of an award and terminate payments accordingly at the end of that period. The period of the award often includes a fraction of a day expressed as a decimal, and this is paid at the end of the award period.

e. Pay rate. Pay rates are discussed in detail in FECA PM 2-0900, and Exhibit 1 of FECA PM 2-0900 provides specific guidance on determining pay rate effective dates for schedule awards.

If the MMI date is established to be a date in the past [see 7b(3)], the "date of injury" for pay rate purposes is the date of last exposure to the work factors that caused the condition prior to the MMI date, since the "injury" must have occurred prior to the date of MMI associated with the accepted impairment. Any additional impairment sustained after that date of MMI can be claimed in accordance with 2-808-9.

f. Compensation Rate. Schedule awards are paid at either the basic rate (66 2/3%) or the augmented rate (75%) of the pay rate for compensation purposes, depending on whether the claimant has an eligible dependent. Eligibility for the augmented compensation rate is discussed in FECA PM 2-0901-12.

g. Minimum (MIN) and Maximum (MAX) rates. While the MIN provision applies to compensation payments for disability, it does not apply for schedule awards. Instead, schedule awards are paid based on the actual pay rate and applicable 75% or 66 2/3% compensation rate. However, the MAX rate does apply to schedule awards. MIN and MAX rates are discussed in more detail in FECA PM 2-0901-13 and 2-0901-14.

h. Consumer Price Index Adjustments (CPIs). Where the schedule award represents the first payment for compensable disability, the claimant's entitlement to CPIs does not begin until one year after the award begins. See Franklin J. Armfield, 29 ECAB 500 (1978) (holding that the claimant was not eligible for a cost-of-living increase, as provided by section 8146a, unless the date of his entitlement to compensation occurred more than a year before the effective date of the cost-of-living increase). CPIs are discussed in more detail in FECA PM 2-0901-16.

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8. Schedule Award Decisions. After the payment has been certified, the CE should promptly issue a formal decision outlining the award details. Form CA-181 Award of Compensation (or equivalent) should be used.

a. The CE should provide all relevant payment information based upon the payment output, including the percentage of impairment, the schedule member, date of MMI, the period and length of the award, the weekly pay rate, the compensation rate, and the effective date of the pay rate. Where the award includes a fraction of a day, line 3 of Form CA-181, Schedule Award Decision, should include the phrase "fraction of a day."

For example: An award for 15 percent loss of use of a foot is 30.75 weeks of compensation. The two-place decimal is retained, and the partial day it represents is called "fraction of a day," or FOD. The dates of payment might be shown as, "March 2, 2011 to October 4, 2011, fraction of a day."

The decision should also include the amount of weekly compensation after CPI adjustments, if applicable.

b. If the award percentage was reduced due to payment of a prior award for the same member, the decision should clearly explain the reduction.

c. The decision should outline, in narrative form, the significant development actions with regard to the determination of the percentage of permanent impairment. The CE should explain how the weight of medical evidence was afforded, especially if the decision awarded a percentage of impairment different than that recommended by the claimant's physician. The decision should clearly outline how the decision was reached.

d. The medical report used for the final determination should be included with the decision.

e. Formal Schedule Award Denial. After appropriate development, if it is determined that the schedule award is not payable, a formal denial with appeal rights should be issued.

(1) When the medical evidence indicates the claimant has reached a fixed-and stable status, and there is no permanent impairment to the injured body part, the formal denial should include a full discussion of the weight of medical evidence used to deny impairment entitlement. Formal denials may also be issued when the medical evidence substantiates the claimant has not reached MMI, the claim is for a non-schedule member, etc.

(2) When the medical evidence indicates the claimant has reached a fixed-and stable status, the claim is for a schedule member, and the claimant has some permanent impairment but not enough to be ratable using the AMA Guides, Sixth Edition, the formal denial should include a full discussion of the weight of medical evidence used to determine that the impairment is 0% and, therefore, an award is not payable.

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9. Claims for Increased Schedule Award. Such claims may be based upon an incorrect calculation of the original award or upon additional exposure.

a. If it is determined after payment of a schedule award that the claimant is entitled to a greater percentage of loss, an amended award should be issued. The pay rate will remain the same, and the revised award will begin on the day following the end of the award issued previously.

b. If, on the other hand, the claimant sustains increased impairment at a later date which is due to work-related factors, an additional award will be payable if supported by the medical evidence. In this case, the original award is undisturbed and the new award has its own date of MMI, percent of impairment, and period of award. This may occur if the claimant sustains additional impairment due to the original work factors with no intervening or additional exposure to those same work factors.

c. In some instances, particularly in hearing loss cases, a claim for an additional schedule award will be based on an additional period of exposure to the same work factors. This constitutes a new claim and should be handled as such. Where a schedule award is paid before exposure terminates, no additional award will be paid for periods of less than one year from the beginning date of the last award or the date of the last exposure, whichever comes first.

If the claimant requests review of such a case, he or she must be asked to clarify whether the request is for review of the award or for additional compensation subsequent to the prior award.

(1) If the claimant is requesting review of the award, the case will be processed as a request for reconsideration, hearing, or appeal, whichever is applicable.

(2) If the claimant is requesting additional compensation, the CE will inform the claimant that a new claim should be filed one year after the beginning date of the last award or the date of last exposure, whichever occurs first.

d. If a claimant who has received a schedule award calculated under a previous edition of the AMA Guides is entitled to additional benefits, the increased award will be calculated according to the Sixth Edition. Should the subsequent calculation result in a percentage of impairment lower than the original award (as sometimes occurs), a finding should be made that the claimant has no more than the percentage of impairment originally awarded, that the evidence does not establish an increased impairment, and that the Office has no basis for declaring an overpayment. Similarly, awards made prior to May 1, 2009 (the effective date for use of the Sixth Edition) should not be reconsidered merely on the basis that the Guides have changed. (All permanent partial impairment calculations made on or after May 1, 2009 must be based on the Sixth Edition.)

e. Unlike awards calculated under different editions of the AMA Guides, claims for an increased schedule award based on the same edition of the AMA Guides are subject to overpayment.

(1) Before addressing the issue of whether an overpayment is appropriate in this circumstance, however, the schedule award issue must be resolved. In Richard Saldibar, 51 ECAB 585 (2000), the ECAB found that an overpayment was not in posture for review because the OWCP had not properly resolved the schedule award issue. Therefore, before the amount of the overpayment can be determined, the evidence must clearly establish the degree of permanent impairment. The evidence should be carefully reviewed, and the schedule award decision that establishes the lesser award should explain in detail the rationale for the lesser degree of impairment.

(2) The ECAB has held that "If a claimant receives a schedule award and the medical evidence does not support the degree of permanent impairment awarded, an overpayment may be created." See Michael Reed, Docket No. 04-734 (issued October 5, 2004).

Therefore, if a schedule award decision is set aside (after a hearing or review by the ECAB, or as part of the reconsideration process) and additional development is undertaken to resolve the schedule award issue, a new schedule award decision should be issued that fully addresses the reasons for the change in rating. Declaring an overpayment thereafter is appropriate if the later decision substantiates a lesser degree of impairment than previously awarded.

Similarly, if a claimant requests an increased schedule award due to a belief that his or her medical condition has deteriorated since the original award has been issued, and additional development is undertaken to address this claim for an increased award, a new schedule award decision should be issued that addresses and substantiates the newly determined impairment rating. If a lesser degree of impairment than previously awarded is substantiated, an overpayment thereafter is appropriate.

(3) Where a schedule award decision establishes a lesser impairment after a greater award has been paid, the resulting overpayment will have a finding of without fault.

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10. Disfigurement. If an injury causes serious disfigurement of the face, head or neck of a character likely to handicap a claimant in securing or maintaining employment, a schedule award is payable under 5 U.S.C. 8107(c) (21) if the claimant is employed or employable. (A claimant who is permanently and totally disabled because of an employment-related injury is not entitled to a disfigurement award.) Cases of this type should remain open until it is clearly established whether or not permanent disfigurement of the face, head or neck has occurred.

Where the evidence shows that the employment injury has caused a permanent scar, blemish or some other type of deformity or defect, the CE will notify the claimant of the right to apply for an award.

A claimant who expresses a desire or intent to claim an award for disfigurement will be sent the proper forms and instructions, even if the evidence of record seems to indicate no permanent disfigurement has occurred.

a. When to Consider a Disfigurement Award. Disfiguring marks on the body tend to heal slowly, and scars and blemishes that remain after healing tend to fade and become less prominent with time. Therefore, an award for disfigurement should not be considered until at least six (and preferably 12) months after the last medical treatment. If a claimant chooses to undergo additional surgery or other treatment, consideration of an award will be deferred until the additional treatment is completed.

b. Notification to Claimant. When the evidence shows disfigurement after healing, the claimant should be notified by Form CA-1094 (or equivalent) of the right to apply for an award. The claimant must complete the front of the form, while the attending physician should complete the lower portion of the reverse side of the form. A new application is required in any instance where the claimant files for an award prematurely.

c. Other Information Required. Form CA-7 should be submitted if one has not been filed previously. Only the front of the form need be completed if a disfigurement award is the only benefit claimed. With the CA-1094, the claimant must submit two photographs taken within five days of the date of the application, each showing different views of the disfigurement fairly and accurately portrayed. The claimant may be reimbursed for the cost of the photographs.

d. OWCP Medical Evaluation. After the CE has gathered the required evidence, the case will be referred to the DMA. The DMA will review the photographs submitted along with the medical evidence of record and place a memorandum in the file describing the disfigurement and stating whether MMI has occurred. If not, final action on the application for disfigurement will be deferred.

If the DMA finds MMI has occurred, the concurrence of the Assistant District Director (ADD) or the District Director (DD) must be obtained. The parties evaluating the disfigurement will place a memorandum in the file which states their findings and decision with supporting rationale. The case will then be returned to the CE for payment of the award not to exceed $3500, or denial of the application.

e. Payment of Award. An award for disfigurement may be paid concurrently with compensation for TTD.

f. A schedule award for the skin may be payable in addition to an award paid for serious disfigurement of the face, head or neck.

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11. Schedule Awards after Termination of Compensation and Medical Benefits. The ECAB has held that termination of a claim for all benefits due to a finding of no residuals of the accepted condition(s) does not bar a subsequent schedule award; rather, the CE should consider the schedule award matter separately from the termination of benefits.

a. If a claimant applies for a schedule award after termination, and submits prima facie medical evidence reflecting permanent impairment as a result of the work-related injury or exposure, the CE should develop the claim further, even if a finding of no residuals has previously been made.

b. If medical evidence establishes that impairment to the schedule member exists, the claimant has the burden of proving that the condition for which a schedule award is sought is causally related to his or her employment.

c. A separate decision from the termination decision needs to be made as to schedule award entitlement. See B.K., 59 ECAB 228 (Docket No. 07-1545, issued December 3, 2007); A.A., 59 ECAB 726 (Docket No. 08-951, issued September 22, 2008); W.J., Docket No. 08-2409(issued September 11, 2009).

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12. Schedule Awards and Refusal of Suitable Work. Section 5 U.S.C. 8106(c) provides a penalty against employees who refuse offers of suitable employment, or who abandon suitable work without good cause. If a claimant refuses to accept a suitable offer of employment, the CE should follow the sanction procedures as discussed in FECA PM 2-0814. Once a §8106(c) sanction decision has been issued, the claimant has no ongoing entitlement to compensation for continuing TTD or schedule award payments.

However, the commencement of the schedule award begins on the date of MMI. If MMI was obtained prior to invoking the §8106(c) sanction, then the claimant would be entitled to schedule award payments from the date of MMI through the date of the §8106(c) sanction decision. See K.H., Docket No. 07-2022 (issued February 25, 2008) (The ECAB held that the OWCP properly denied appellant's entitlement to schedule award compensation as section 8106(c) of the FECA served as a bar to further compensation for disability arising from the accepted employment injuries); Alfred R. Anderson, 54 ECAB 179 (2002); Stephen R. Lubin, 43 ECAB 564 (1992) (where the ECAB found that the penalty provision of section 8106(c) may serve as a bar to compensation pursuant to appellant's claim for a schedule award for the period after the termination of compensation based on a refusal to accept a suitable offer of employment).

Claims for Schedule Award received after the date of the §8106(c) sanction decision should not be adjudicated such that new appeal rights are afforded. Rather, the CE should refer the claimant to the appeal rights provided with the original sanction.

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Exhibit 1: Percentage Table for Schedule Awards

Member

W/D

01%

02%

03%

04%

05%

10%

15%

20%

Arm

W

3.12

6.24

9.66

12.48

15.60

31.20

46.80

62.40

D

21.84

43.68

65.52

87.36

109.20

218.40

327.60

436.80

Leg

W

2.88

5.76

8.64

11.52

14.40

28.80

43.20

57.60

D

20.16

40.32

60.48

80.64

100.50

201.60

302.40

403.20

Hand

W

2.44

4.88

7.32

9.76

12.20

24.40

36.60

48.80

D

17.08

34.16

51.24

68.32

85.40

170.80

256.20

341.60

Foot

W

2.05

4.10

6.15

8.20

10.25

20.50

30.75

41.00

D

14.35

28.70

43.05

57.40

71.75

143.50

215.25

287.00

Penis

W

2.05

4.10

6.15

8.20

10.25

20.50

30.75

41.00

D

14.35

28.70

43.05

57.40

71.75

143.50

215.25

287.00

Vulva/Vagina
Uterus/Cervix

W

2.05

4.10

6.15

8.20

10.25

20.50

30.75

41.00

D

14.35

28.70

43.05

57.40

71.75

143.50

215.25

287.00

Larynx/Tongue

W

1.60

3.20

4.80

6.40

8.00

16.00

24.00

32.00

D

11.20

22.40

33.60

44.80

56.00

112.00

168.00

224.00

Eye

W

1.60

3.20

4.80

6.40

8.00

16.00

24.00

32.00

D

11.20

22.40

33.60

44.80

56.00

112.00

168.00

224.00

Kidney/Lung

W

1.56

3.12

4.68

6.24

7.80

15.60

23.40

31.20

D

10.92

21.84

32.76

43.68

54.60

109.20

163.80

218.40

Thumb

W

.75

1.50

2.25

3.00

3.75

7.50

11.25

15.00

D

5.25

10.50

15.75

21.00

26.25

52.50

78.75

105.00

1st Finger

W

.46

.92

1.38

1.84

2.30

4.60

6.90

9.20

D

3.22

6.44

9.66

12.88

16.10

32.20

48.30

64.40

Great Toe

W

.38

.76

1.14

1.52

1.90

3.80

5.70

7.60

D

2.66

5.32

7.98

10.64

13.30

26.60

39.90

53.20

2nd Finger

W

.30

.60

.90

1.20

1.50

3.00

4.50

6.00

D

2.10

4.20

6.30

8.40

10.50

21.00

31.50

42.00

3rd Finger

W

.25

.50

.75

1.00

1.25

2.50

3.75

5.00

D

1.75

3.50

5.25

7.00

8.75

17.50

26.25

35.00

Toe (other than
great toe)

W

.16

.32

.48

.64

.80

1.60

2.40

3.20

D

1.12

2.24

3.36

4.48

5.60

11.20

16.80

22.40

4th Finger

W

.15

.30

.45

.60

.75

1.50

2.25

3.00

D

1.05

2.10

3.15

4.20

5.25

10.50

15.75

21.00

Hearing (1 ear)

W

.52

1.04

1.56

2.08

2.60

5.20

7.80

10.40

D

3.64

7.28

10.92

14.56

18.20

36.40

54.60

72.80

Hearing
(Both ears)

W

2.00

4.00

6.00

8.00

10.00

20.00

30.00

40.00

D

14.00

28.00

42.00

56.00

70.00

140.00

210.00

280.00

Testicle

W

.52

1.04

1.56

2.08

2.60

5.20

7.80

10.40

D

3.64

7.28

10.92

14.56

18.20

36.40

54.60

72.80

Breast

W

.52

1.04

1.56

2.08

2.60

5.20

7.80

10.40

D

3.64

7.28

10.92

14.56

18.20

36.40

54.60

72.80

Ovary (includes fallopian tubes)

W

.52

1.04

1.56

2.08

2.60

5.20

7.80

10.40

D

3.64

7.28

10.92

14.56

18.20

36.40

54.60

72.80

Skin

W

2.05

4.10

6.15

8.20

10.25

20.50

30.75

41.00

D

14.35

28.70

43.05

57.40

71.75

143.50

215.25

287.00

W = Weeks and D=Days

 

Exhibit 1 (continued): Percentage Table for Schedule Awards

Member

W/D

25%

30%

35%

40%

45%

50%

55%

60%

Arm

W

78.00

93.60

109.20

124.80

140.40

156.00

171.00

187.20

D

546.00

655.20

764.40

873.60

982.80

1092.00

1201.20

1310.40

Leg

W

72.00

86.40

100.80

115.20

129.60

144.00

158.40

172.80

D

504.00

604.80

705.60

806.40

907.20

1008.00

1108.00

1209.60

Hand

W

61.00

73.20

85.40

97.60

109.80

122.00

134.20

146.40

D

427.00

512.40

597.80

683.20

768.60

854.00

939.40

1024.80

Foot

W

51.25

61.50

71.75

82.00

92.25

102.50

112.75

123.00

D

358.75

430.50

502.25

574.00

645.75

717.50

789.25

861.00

Penis

W

51.25

61.50

71.75

82.00

92.25

102.50

112.75

123.00

D

358.75

430.50

502.25

574.00

645.75

717.50

789.25

861.00

Vulva/Vagina
Uterus/Cervix

W

51.25

61.50

71.75

82.00

92.25

102.50

112.75

123.00

D

358.75

430.50

502.25

574.00

645.75

717.50

789.25

861.00

Larynx/Tongue

W

40.00

48.00

56.00

64.00

72.00

80.00

88.00

96.00

D

280.00

336.00

392.00

448.00

504.00

560.00

616.00

672.00

Eye

W

40.00

48.00

56.00

64.00

72.00

80.00

88.00

96.00

D

280.00

336.00

392.00

448.00

504.00

560.00

616.00

672.00

Kidney/Lung

W

39.00

46.80

54.60

62.40

70.20

78.00

85.80

93.60

D

273.00

327.60

382.20

436.80

491.40

546.00

600.60

655.20

Thumb

W

18.75

22.50

26.25

30.00

33.75

37.50

41.25

45.00

D

131.25

157.50

183.75

210.00

236.25

262.50

288.75

315.00

1st Finger

W

11.50

13.80

16.10

18.40

20.70

23.00

25.30

27.60

D

80.50

96.60

112.70

128.80

144.90

161.00

177.10

193.20

Great Toe

W

9.50

11.40

13.30

15.20

17.10

19.00

20.90

22.80

D

66.50

79.80

93.10

106.40

119.70

133.00

146.30

159.60

2nd Finger

W

7.50

9.00

10.50

12.00

13.50

15.00

16.50

18.00

D

52.50

63.00

73.50

84.00

94.50

105.00

115.50

126.00

3rd Finger

W

6.25

7.50

8.75

10.00

11.25

12.50

13.75

15.00

D

43.75

52.50

61.25

70.00

78.75

87.50

96.25

105.00

Toe (other than
great toe)

W

4.00

4.80

5.60

6.40

7.20

8.00

8.80

9.60

D

28.00

33.60

39.20

44.80

50.40

56.00

61.60

67.20

4th Finger

W

3.75

4.50

5.25

6.00

6.75

7.50

8.25

9.00

D

26.25

31.50

36.75

42.00

47.25

52.50

57.75

63.00

Hearing (1 ear)

W

13.00

15.60

18.20

20.80

23.40

26.00

28.60

31.20

D

91.00

109.20

127.40

145.60

163.80

182.00

200.20

218.40

Hearing
(Both ears)

W

50.00

60.00

70.00

80.00

90.00

100.00

110.00

120.00

D

350.00

420.00

490.00

560.00

630.00

700.00

770.00

840.00

Testicle

W

13.00

15.60

18.20

20.80

23.40

26.00

28.6.00

31.20

D

91.00

109.20

127.40

145.60

163.80

182.00

200.20

218.40

Breast

W

13.00

15.60

18.20

20.80

23.40

26.00

28.60

31.20

D

91.00

109.20

127.40

145.60

163.80

182.00

200.20

218.40

Ovary (includes fallopian tubes)

W

13.00

15.60

18.20

20.80

23.40

26.00

28.60

31.20

D

91.00

109.20

127.40

145.60

163.80

182.00

200.20

218.40

Skin

W

51.25

61.50

71.75

82.00

92.25

102.50

112.75

123.00

D

358.75

430.50

502.25

574.00

645.75

717.50

789.25

861.00

W = Weeks and D=Days

 

Exhibit 1 (continued): Percentage Table for Schedule Awards

Member

W/D

65%

70%

75%

80%

85%

90%

95%

100%

Arm

W

202.80

218.40

234.00

249.60

265.20

280.80

296.40

312.00

D

1419.60

1528.80

1638.00

1747.20

1856.40

1965.60

2074.80

2184.00

Leg

W

187.20

201.60

216.00

230.40

244.80

259.20

273.60

288.00

D

1310.40

1411.20

1512.00

1612.80

1713.60

1814.40

1915.20

2016.00

Hand

W

158.60

170.80

183.00

195.20

207.40

219.60

231.80

244.00

D

1110.20

1195.60

1281.00

1366.40

1451.80

1537.20

1622.60

1708.00

Foot

W

133.25

143.50

153.75

164.00

174.25

184.50

194.75

205.00

D

932.75

1004.50

1076.25

1148.00

1219.75

1291.50

1363.25

1435.00

Penis

W

133.25

143.50

153.75

164.00

174.25

184.50

194.75

205.00

D

932.75

1004.50

1076.25

1148.00

1219.75

1291.50

1363.25

1435.00

Vulva/Vagina
Uterus/Cervix

W

133.25

143.50

153.75

164.00

174.25

184.50

194.75

205.00

D

932.75

1004.50

1076.25

1148.00

1219.75

1291.50

1363.25

1435.00

Larynx/Tongue

W

104.00

112.00

120.00

128.00

136.00

144.00

152.00

160.00

D

728.00

784.00

840.00

896.00

952.00

1008.00

1064.00

1120.00

Eye

W

104.00

112.00

120.00

128.00

136.00

144.00

152.00

160.00

D

728.00

784.00

840.00

896.00

952.00

1008.00

1064.00

1120.00

Kidney/Lung

W

101.40

109.20

117.00

124.80

132.60

140.40

148.20

156.00

D

709.80

764.40

819.00

873.60

928.20

982.80

1037.40

1092.00

Thumb

W

48.75

52.50

56.25

60.00

63.75

67.50

71.25

75.00

D

341.25

367.50

393.75

420.00

446.25

472.50

498.75

525.00

1st Finger

W

29.90

32.20

34.50

36.80

39.10

41.40

43.70

46.00

D

209.30

225.40

241.50

257.60

273.70

289.80

305.90

322.00

Great Toe

W

24.70

26.60

28.50

30.40

32.30

34.20

36.10

38.00

D

172.90

186.20

199.50

212.80

226.10

239.10

252.70

266.00

2nd Finger

W

19.50

21.00

22.50

24.00

25.50

27.00

28.50

30.00

D

136.50

147.00

157.50

168.00

178.50

189.00

199.50

210.00

3rd Finger

W

16.25

17.50

18.75

20.00

21.25

22.50

23.75

25.00

D

113.75

122.50

131.25

140.00

148.75

157.50

166.25

175.00

Toe (other than
great toe)

W

10.40

11.20

12.00

12.80

13.60

14.40

15.20

16.00

D

72.80

78.40

84.00

89.60

95.20

100.80

106.40

112.00

4th Finger

W

9.75

10.50

11.25

12.00

12.75

13.50

14.25

15.00

D

68.25

73.50

78.75

84.00

89.25

94.50

99.75

105.00

Hearing (1 ear)

W

33.80

36.40

39.00

41.60

44.20

46.80

49.40

52.00

D

236.60

254.80

273.00

291.00

309.40

327.60

345.80

364.00

Hearing
(Both ears)

W

130.00

140.00

150.00

160.00

170.00

180.00

190.00

200.00

D

910.00

980.00

1050.00

1120.00

1190.00

1260.00

1330.00

1400.00

Testicle

W

33.80

36.40

39.00

41.60

44.20

46.80

49.40

52.00

D

236.60

254.80

273.00

291.00

309.40

327.60

345.80

364.00

Breast

W

33.80

36.40

39.00

41.60

44.20

46.80

49.40

52.00

D

236.60

254.80

273.00

291.00

309.40

327.60

345.80

364.00

Ovary (includes fallopian tubes)

W

33.80

36.40

39.00

41.60

44.20

46.80

49.40

52.00

D

236.60

254.80

273.00

291.00

309.40

327.60

345.80

364.00

Skin

W

133.25

143.50

153.75

164.00

174.25

184.50

194.75

205.00

D

932.75

1004.50

1076.25

1148.00

1219.75

1291.50

1363.25

1435.00

W = Weeks and D=Days

 

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Chapter 2-0900, Determining Pay Rates

Paragraph and Subject

Date

Trans. No.

Table of Contents

8/12

12-13

 

9/11

11-07

 

3/11

11-03

1. Purpose and Scope

3/11

11-03

2. Establishing a Pay Rate

3/11

11-03

3. Kinds of Appointments and Tours of Duty

3/11

11-03

4. Average Annual Earnings

3/11

11-03

5. Effective Date of Pay Rate

9/11

11-07

 

3/11

11-03

6. Elements Included in Pay Rate

3/11

11-03

7. Elements Excluded from Pay Rate

3/11

11-03

8. Applying Increments of Pay

8/12

12-13

 

3/11

11-03

9. Computing Daily Pay Rate

3/11

11-03

10. Computing Weekly Pay Pate

3/11

11-03

11. Computing Monthly Pay Rate

3/11

11-03

12. Special Determinations

3/11

11-03

Exhibit 1 - Determining Effective Pay Rate Date for Schedule Awards

9/11

11-07

 

3/11

11-03

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1. Purpose and Scope. This chapter addresses determination of pay rates for injured workers who meet the criteria as employees within the meaning of 5 U.S.C. 8101(1). It describes the steps for establishing pay rates, including the statutory basis of payment; the effective date of the pay rate; the elements of pay which are included in the pay rate, and those which are excluded; and how to establish daily, weekly, and monthly pay rates. The chapter also includes a section on special determinations (which are also addressed in various FECA Program Memoranda).

Section 8101(4) defines "monthly pay" as "the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the injured employee resumes regular full-time employment with the United States, whichever is greater, except when otherwise determined under section 8113 of this title with respect to any period." The monthly pay for wage loss compensation is subject to a minimum and maximum level of compensation that is set forth in 5 U.S.C. 8112. Section 8113 sets forth certain criteria for an employee employed in a learner's capacity. Section 8114 sets forth various formulas for how to calculate the rate of pay and sets forth elements of pay such as overtime that must be excluded from pay rate calculations.

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2. Establishing a Pay Rate. This paragraph describes in general how to determine a pay rate and where to find relevant information. While Forms CA-1, CA-2, CA-6, CA-7, and CA-2a contain much useful information, the Claims Examiner (CE) must also consider any narrative evidence in file. To establish a pay rate, the CE should take the following steps:

a. Determine the Basis of Payment Under 5 U.S.C. 8114 and whether the claimant is a full-time, part-time, temporary, seasonal, casual, etc. worker. If the claimant worked the whole year prior to injury or would have done so but for the injury (Form CA-7, section 9b), this determination is straightforward. If not, however, the CE must investigate all sources of income to determine the claimant's "average annual earnings" before proceeding further. See paragraphs 3 and 4 below.

b. Determine the Effective Date of Pay Rate. The CE must next decide whether to set the pay rate as of the date of injury (DOI) (or death), the date disability began (DDB), or the date of recurrence (DOR). The pay rates on the date of injury and date disability began should be noted on Form CA-7, section 8. Pay rates for newly reported recurrences should be shown on Form CA-2a, while pay rates for previously accepted recurrences should be noted in the Compensation application of the Integrated Federal Employees' Compensation System (iFECS). See paragraph 5 below.

c. Consider Inclusions and Exclusions from Pay Rate. The nature of the increment must be considered first. Commonly encountered increments are reported on Form CA-7, section 8. The CE should also review Form CA-1, CA-2, or CA-2a for evidence of entitlement to premium pay. If the increment can be included, the CE must determine how long it has been received and the amount of money that has been paid. See paragraphs 6-8 below.

d. Clarify Any Discrepancies. The employing agency (EA) or claimant may challenge, correct, or expand on the evidence in the original reports with respect to terms of employment, amount of pay, or types and amounts of increments.

(1) The CE must clarify any material discrepancies in the record before establishing a pay rate for compensation purposes. This can be done by letter, secure e-mail with the employing agency to and from a government network, or by telephone call followed by written confirmation. Document the information received via telephone in the case file on a CA-110 pending receipt of written confirmation.

(2) Evidence submitted by an EA that is supported by records will usually prevail over statements from the claimant, unless such statements are supported by documentary evidence.

(3) When a discrepancy in the reported pay rates is identified, compensation should be paid based on the lower figure until the CE resolves the discrepancy. A provisional rate of GS-2, step 1, or the amount reached by multiplying the daily wage by 150 may be used if necessary. The eight hours per day used in the "150-formula" is based on a five-day work week, or 40 hours per week. Any adjustment should be included in a later payment. The CE should note use of a provisional or temporary rate in the compensation screen of iFECS and in the case record.

e. Decide on Daily, Weekly, or Monthly Basis. While disability claims may be paid on a daily basis under limited circumstances, most are paid on a weekly basis. All death claims are paid on a monthly basis. See paragraphs 9-11 below.

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3. Kinds of Appointments and Tours of Duty. This paragraph describes the most common kinds of appointments in both regular Federal employment and in the Postal Service, as well as other types of appointments or duty status.

a. Civil Service.

(1) Kinds of Appointments. The Office of Personnel Management (OPM) recognizes four kinds of appointments: career; career-conditional (essentially a probationary period); term (not to exceed four years, and with no career status); and temporary (not to exceed one year, with a one-year extension possible, and with no career status).

(2) Tours of Duty. OPM recognizes five tours of duty:

(a) Full-time (40 hours per week);

(b) Part-time (16-32 hours per week);

(c) Intermittent (no regularly scheduled hours);

(d) Seasonal (less than 12 months per year, with either a full-time, part-time, or intermittent schedule); and

(e) On-call (usually at least six months per year on an as-needed basis, with either a full-time or part-time schedule).

Items 20 and 21 on Form CA-1 and items 21 and 22 on Form CA-2 should show the employee's work schedule.

b. Postal Service.

(1) Kinds of Appointments. The Postal Service recognizes the same kinds of appointments as OPM. The Postal Service may differentiate these duties by use of different job titles such as Part-Time Flexible or Casual, and by the type of schedule the employees work.

(2) Tours of Duty. The Postal Service recognizes several types of tours of duty, depending on the kind of work performed. Review of Form PS-50 should clarify the tour of duty on the date of injury and kind of work performed.

An employee may work more hours than indicated by the tour of duty, but careful consideration of base pay versus overtime pay should be given to clarify the regular work schedule. In such cases, the pattern established by the actual number of hours worked or actual amounts of money earned takes precedence over the stated schedule or tour of duty in deciding which part of 5 U.S.C. 8114 to use in determining the pay rate.

Postal Service tours are distinguished as follows:

(a) Craft employees such as letter carriers and mail clerks, or other full-time employees, are paid under the Postal Service (PS) salary structure. These are full-time regular employees and work 40 hours per week.

(b) Part-time regular employees have a fixed schedule but work less than 40 hours per week.

(c) Full-time rural carriers are assigned to specific routes, each of which is evaluated at 36 to 48 hours per week, depending on the size of the route.

The salaries for full-time rural carriers are based on the evaluation of their routes. The Postal Service uses a formula to determine the evaluated salary, which may be based on an evaluation of between 36 and 48 hours per week. Salaries derived from routes which are evaluated at more than 40 hours per week are not considered to include overtime for rural carriers.

Rural carriers are not in an overtime status unless they actually work more than the number of hours stipulated in their contract for their route evaluation and are paid accordingly for overtime. The evaluated pay, therefore, is the pay rate for compensation purposes.

The salary for full-time rural carriers may vary over the life of the claim due to re-evaluations of the employee's assigned route. These changes will only affect the pay rate for compensation purposes on the date disability begins, or if the employee is performing regular work on a full-time basis at the time of a recurrence that qualifies for a recurrent pay rate. If the pay rate on the date disability begins or at the time of a qualifying recurrence is lower than the DOI pay rate, then the DOI pay rate is used to compute compensation.

If a change occurs during a period of disability, compensation continues to be based on the original pay rate.

(d) Rural carrier associates (RCA) are employed irregularly and paid When Actually Employed (WAE). Leave replacement workers, which include RCA's, relief carriers, and substitutes, can work any schedule. For rural carrier leave replacements, who are hired on a part-time basis to substitute for rural carriers and may work from one to six days in a given week, the pay rate should be established in accordance with 5 U.S.C. 8114(d).

(e) Part-time flexible employees, like RCA's, do not have a fixed schedule and can work any schedule up to 40 hours per week and are also paid WAE. Part-time flexible employees are not paid extra for holidays, as their basic pay rate includes an increment for holidays.

(f) Casual employees only work a guaranteed 89-day period, which may or may not be renewed by the Postal Service. A careful review of the employee's PS-50 should clarify the employee's entry on duty date for reference.

(g) Postal inspectors have scheduled work weeks of six days per week and are not paid overtime for the sixth day. These employees are included in the Executive and Administrative Salary (EAS) pay structure, which also covers executives, professionals, supervisors, postmasters, and technical, administrative and clerical employees.

(h) Postmasters (A-E) may work 40 hours per week over six days. Pay for the sixth day does not constitute overtime.

(i) Postal Career Executive Service (PCES) employees are paid an annual salary and may work any schedule with no overtime payable.

c. Military Sealift Command.

(1) Kinds of Appointments. Members of the Military Sealift Command (MSC) crew are assigned to a ship(s) which is usually based out of Norfolk, Virginia or San Diego, California. The duties the crew members perform, which are dependent on the needs of the boat and the boat's specific mission(s), determine what extra pay they may earn.

(2) Tours of Duty and Types of Extra Pay Earned. The tour of duty for MSC crew members is dependent on the boat and the particular duties assigned. Tours of duty may be more than eight hours per day. All crew members are guaranteed a set base salary but may earn extra pay for items discussed under paragraph 6(b) below. Not every crew member will necessarily earn all of the allowable extra pay elements, and duties can change each day.

d. National Guard.

(1) Kinds of Appointments. National Guard members are required to be members of the Air and/or Army National Guard because this membership is contingent upon their civilian Federal employee status. This is considered an accepted dual status.

Federal employees who are not civilian members of the Air and/or Army National Guard are ineligible for this dual status because it is not a requirement for any other Federal employee to retain this dual Federal employment.

(2) Tours of Duty. Civilian members of the Air and/or Army National Guard normally work a set 40-hour work week but perform a two-week or 15-day drill duty each year in addition to monthly training assemblies.

An employee may also be recalled to duty for active Federal service under a Presidential "call" for a period not to exceed 270 days. Refer to paragraph 6(b) below for clarification when a civilian National Guard employee is entitled to compensation above his or her base salary.

e. Census Bureau. Census Bureau employees can be either full-time 40 hour per week regular employees, or may be hired every ten years to work in temporary appointments (not to exceed 180 days) as enumerators, crew leaders or clerks. Temporary positions such as enumerators historically average 4.5 hours per day, four days per week, but crew leaders or clerks can work more than this during the 180-day appointment period.

f. Federal Jurors. Grand Jurors can sit for up to 36 months but do not necessarily convene every day. They may hear evidence for many different cases. Petit Jurors participate in criminal and civil trials and normally serve for one trial only. See FECA PM 2-0802-20 for further details.

g. Firefighters.

(1) Kinds of Appointments. There are several categories of firefighters employed with the Federal Government:

(a) Full-time firefighters, such as those on military installations.

(b) Seasonal firefighters with the US Forest Service.

(c) Firefighters hired on an emergency basis to address specific critical incidents.

(2) Tours of Duty. Tours of duty may vary:

(a) Firefighters who normally work three 24-hour shifts per week. Most firefighters who work a 24-hour shift have a regular bi-weekly tour of 144 hours (six 24-hours shifts), consisting of 106 regular hours and 38 "firefighter overtime" hours.

(b) Firefighters with an extended regular tour built on top of a 40- hour basic workweek.

(c) Emergency firefighters who are typically employed with the Forest Service, National Park Service, and Bureau of Land Management. These employees are not "career seasonal" and are hired on an as-needed basis. Schedules often exceed eight hours per day and five days per week.

h. Department of Agriculture Co-op Employees. These employees work with the Department of Agriculture under a cooperative agreement with a non-Federal public or private organization. See paragraph 12 below.

i. Peace Corps. Each volunteer works in an assignment for a period of 27 months and is considered enrolled 24 hours per day during his or her enrollment period. See FECA PM 2-1700-4 for more information. Pay rates for volunteers are set forth in 5 U.S.C. 8142 (c).

j. Job Corps. Training offered by Job Corps for enrollees as young as 16 years can take from eight months to two years to complete. Subject to the statutory guidance and procedures set forth in FECA PM 2-1700-6, the employee is generally considered covered under the FECA 24 hours per day during this time frame. Pay rates for Job Corps students are set forth in 5 U.S.C. 8143.

k. Americorps VISTA. AmeriCorps itself is split into three main divisions, including AmeriCorps State and National, Volunteers in Service to America (VISTA), and National Civilian Community Corps (NCCC). Each member works for a minimum of one year and is generally covered under the FECA 24 hours per day during this time frame. See FECA PM 2-0802-30.

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4. Average Annual Earnings. This paragraph describes how to determine average annual earnings. This determination, which depends on the nature and duration of the employment, must be made before establishing weekly and monthly pay rates.

The four methods provided by the FECA for making these determinations are set forth in 5 U.S.C. 8114(d)(1) through (d)(4) and are outlined briefly as follows:

Section 5 U.S.C. 8114(d)(1) is used if the employee worked substantially the whole year prior to the injury.

Section 5 U.S.C. 8114(d)(2) is used if the employee did not work substantially the whole year prior to the injury, but would have been employed for substantially a whole year had it not been for the injury.

Section 5 U.S.C. 8114(d)(3) is used if the employee was not employed for substantially the whole year and the employment would not have lasted for substantially the whole of the year.

Section 5 U.S.C. 8114(d)(4) is used when an employee works without pay or nominal pay.

When determining a pay rate, the above criteria should be considered in the order listed, so that only if the method prescribed in 5 U.S.C. 8114(d)(1) cannot be reasonably and fairly applied should the CE consider using the method stated in 5 U.S.C. 8114(d)(2), and so forth.

a. Whole-Year Employment - 5 U.S.C. 8114(d)(1).

5 U.S.C. 8114(d)(1) states,

(d) Average annual earnings are determined as follows:

(1) If the employee worked in the employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury and the employment was in a position for which an annual rate of pay--

(A) was fixed, the average annual earnings are the annual rate of pay; or

(B) was not fixed, the average annual earnings are the product obtained by multiplying his daily wage for the particular employment, or the average thereof if the daily wage has fluctuated, by 300 if he was employed on the basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2 -day week, and 260 if employed on the basis of a 5-day week.

Therefore, if the employee worked at least 11 months ("substantially the whole year") before the injury in the job held at the time of injury (see section 9(b) on Form CA-7 or item 19 on Form CA-6), the CE may accept the basic pay rate reported without further inquiry.

The following considerations also apply to section 5 U.S.C. 8114(d)(1):

(1) Career seasonal employment. This is an arrangement where the employee regularly works just part of a calendar year, usually for the same general period each year and at the same type of job. Such workers often perform highly specialized duties (e.g., forest firefighters, IRS tax examiners, forestry technicians).

(a) An employee who has worked in such a position during more than one calendar year by prior written agreement with the employer is considered to be a career seasonal employee. Such an employee is entitled to receive compensation on the same basis as an employee with the same grade and step who has worked the whole year.

(b) Information as to the status of the employee may appear on Form CA-7. If not, the CE must contact the EA. The kind of appointment (career, career-conditional, term or temporary) is shown on the SF-50, Notification of Personnel Action, or on Form PS-50 for Postal employees. The form should show clearly that the appointment is seasonal. An employee should not be considered career seasonal without explicit written documentation by the agency of his or her status.

(c) Employment during the year before the injury is not a factor. For example, compensation for a career seasonal firefighter paid at a GS-7 level, who had worked full-time in such a position by mutual agreement during more than one calendar year, would be computed at the full-time year-round GS-7 salary, regardless of how much or how little the employee worked during the year prior to the injury.

(d) An employee who has worked in a position with no prior written agreement is not considered to be a career seasonal employee. For example, a holiday casual Postal clerk may be rehired on new appointments several years in a row, but since the employer and the employee have not explicitly agreed that the employment will continue from year to year, it is not considered career seasonal work.

(2) Teachers. Teachers are not considered to fall under the provisions of career seasonal employment as set forth above in (1), but they are considered whole-year employment by nature of the position. As noted above, the FECA provides for different methods of computation of average annual earnings, depending on whether the employee worked in the employment in which he or she was injured for substantially a whole year. Substantially the whole year is normally defined as at least 11 months. However, in the teaching profession, substantially the whole year would not necessarily be 11 months. Therefore, in order to determine the average annual earnings for a teacher, consideration must be given to whether the claimant worked substantially the whole actual school year, i.e., 11/12ths of the school year, and whether he or she would have been employed for substantially a whole school year had it not been for the injury.

(3) Concurrent employment. Concurrent employment can be included in determinations made under 5 U.S.C. 8114(d)(1) to the extent that it establishes the ability to work full time. As discussed more fully below, either similar or dissimilar employment can be used to demonstrate this ability.

Program Memorandum No. 147 discusses Irwin Goldman, 23 ECAB 6 (1971), and notes that a pay rate for compensation purposes is not limited to only what an employee earns in part-time employment for a Federal employer when there is concurrent employment that demonstrates the ability to work full time.

(a) When a claimant has been employed for 40 or more hours per week for substantially the year prior to injury, but not all of these hours are with a Federal employer, he or she has demonstrated the ability to work full time. Therefore, the claimant is entitled to compensation at the rate of a regular full-time employee in the same position.

(b) A claimant who can establish that he or she worked for substantially the entire year prior to the injury on a full-time basis is entitled to receive compensation on the same basis as a regular employee working in the same type of job. It does not matter what type of work the claimant performed during that year (though attending school is not considered employment and sporadic employment also would not demonstrate the ability to work full time). The fact that he or she had been employed consistently demonstrates the ability to work full time.

(c) Dissimilar employment. In the Goldman decision, it was determined that a part-time Postal employee who worked four hours per day, five days a week, and had a set salary, could have his pay rate expanded to support that his outside full-time employment in dissimilar private industry demonstrated he could perform work full-time as a Postal employee for compensation calculation purposes.

Therefore, work performed in another job during the year prior to a work-related injury can demonstrate an ability to perform full-time work in the job in which the injury occurred. When a part-time or short-term employee has demonstrated the ability to work full time by performing dissimilar employment for the year prior to the date of injury, the pay rate of an employee working full time in the actual Federal job held by the injured employee should be used to compute compensation.

However, the Goldman decision notes these same private industry earnings could not represent an employee's wage-earning capacity (which is discussed in further detail in FECA PM 2-0814). The actual pay received for dissimilar employment cannot be used in the calculation of the pay rate, but the hours worked can be used to establish an employee's ability to work full time.

(d) Similar employment. Similar outside employment also demonstrates the ability to work full time; however, as opposed to dissimilar employment, similar employment requires the Office to combine the actual earnings from Federal employment with the actual earnings for the similar employment to obtain the average annual pay the employee earned. This total would be divided by 52 to obtain the weekly pay rate.

For example, if a part-time x-ray technician for the VA also works part-time as an x-ray technician at a private hospital, the total earnings of both would be added together to obtain the average annual earnings.

However, a pay rate based on full-time Federal employment may not generally be expanded to include the pay earned in any other concurrent employment, even if that employment is similar to the Federal duties. See J.G., Docket No. 05-943, issued May 23, 2007, where the injured worked was a full-time employee who worked another full-time job but was only entitled to compensation for wage loss for full-time Federal employment. Likewise, a pay rate based on career seasonal employment may not be expanded to include the pay earned "off season."

It is important to distinguish this situation from that addressed by the ECAB in Daniel Shaw, Docket No. 97-1680, issued April 14, 1999. In Shaw, the Board found that the transcript fees the employee, a court reporter, received constituted consideration for his federal employment and therefore were required to be included in the pay rate for compensation purposes. In this case, the claimant did not have similar, concurrent private-sector employment but, as an official court reporter, he was permitted by law to receive payment for transcripts he produced as part of his duties in addition to his salary. The fees he was allowed to charge for these transcripts were set by the employer. Payment was received from both the federal government and by private individuals for official, certified transcripts required in court proceedings. However, such payment was allowed by law and by the employing establishment, and the amount was set under the regulations of the employing establishment. Even though payment was received from other than the claimant's employer, the payment was made for the product of the duties he performed for his salaried position. He was, therefore, being paid for work performed within the performance of his duties.

(4) Pay for Whole Year Employment. For employees who have worked for at least a full year prior to the injury, but whose pay fluctuated during the year, the weekly pay rate for compensation purposes is determined under 5 U.S.C. 8114(d)(1)(B).

For instance, the pay rate of a rural carrier associate or part-time flexible employee of the Postal Service who works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B), not section 8114(d)(3), even if the earnings fluctuated considerably from week to week, because an annual rate of pay can be established by obtaining the yearly earnings, without overtime, for the year prior to the injury.

b. Anticipated Whole-Year Employment - 5 U.S.C. 8114(d)(2).

5 U.S.C. 8114(d)(2) states,

(d) Average annual earnings are determined as follows:

(2) If the employee did not work in employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury, but the position was one which would have afforded employment for substantially a whole year, the average annual earnings are a sum equal to the average annual earnings of an employee of the same class working substantially the whole immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as determined under paragraph (1) of this subsection.

Therefore, the next issue to be considered in determining average annual earnings is anticipated whole-year employment. An affirmative answer to section 9(b) on Form CA-7 or item 20 on Form CA-6 is sufficient to show that the employee's position would have afforded employment for substantially a whole year had it not been for the injury. A negative, absent, or ambiguous answer to this question should prompt the CE to release Form CA-1030 to the EA. This can also be documented by a CA-110 following a call with the employing agency.

The average annual earnings are determined as described in paragraph 4(a) above. The discussion of concurrent employment in paragraph 4(a)(3) above also applies to these cases.

c. Irregular Employment - 5 U.S.C. 8114(d)(3).

5 U.S.C. 8114(d)(3) states,

(d) Average annual earnings are determined as follows:

(3) If either of the foregoing methods of determining the average annual earnings cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury having regard to the previous earnings of the employee in Federal employment, and of other employees of the United States in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the employee earned in the employment during the days employed within 1 year immediately preceding his injury.

Therefore, any situation not involving regular whole-year employment, career seasonal employment, a demonstrated ability to work full time, or anticipated whole-year employment - as discussed in the preceding paragraphs - is considered irregular employment. This category includes intermittent, seasonal, on-call, and discontinuous work, as well as employment where average annual earnings cannot be established under 5 U.S.C. 8114(d)(1) or (2).
The provisions of 5 U.S.C. 8114(d)(3) are not to be used if sections 8114(d)(1) or (2) can be applied. As noted earlier, for example, the pay rate of a part-time flexible employee of the Postal Service who works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B), not section 8114(d)(3), even if the earnings fluctuated considerably from week to week, because an annual rate of pay can be established by obtaining the yearly earnings without overtime for the year prior to the injury.

Among other situations, irregular employment may include:

  • Postal Service employees hired for the holiday season;
  • Census enumerators (see paragraph 12 for further details);
  • Casual firefighters hired by the Forest Service;
  • Bin-site workers, county and precinct committee workers, and a variety of other inspection personnel, food technologists, veterinary medical officers, and agriculture commodity workers personnel employed on an occasional basis by the Department of Agriculture.

The Office must first take into consideration the earnings of the employee in Federal employment for the year prior to injury. Then the Office should review the earnings of other employees in the same or most similar class working in the same or most similar employment in the same or neighboring location. Finally, the Office must consider any other employment of the employee, or other relevant factors.

However, the average annual earnings may not be less than 150 times the average daily wage that the employee earned in the employment during the year just before the injury. This "150 Formula" should be used by the Office as a provisional pay rate when the employee is entitled to compensation for wage loss and further investigation is required to determine the claimant's average annual earnings.

(1) Claimant's prior-year Federal employment. This information should be obtained from the EA or other Federal agency where the employee worked. Form CA-1030 may be used to request this information.

(2) Similarly-employed worker. The Office should determine the earnings of another Federal employee working the greatest number of hours during the year prior to the injury in the same or most similar class, in the same or neighboring locality, as obtained from the EA or another Federal agency in the same or neighboring locality. Form CA-1030 requests this information.

(a) "Same or most similar class" refers both to the kind of work performed and the kind of appointment held. A similarly situated employee would most likely hold the same type of appointment and the same pay grade and step as the claimant. For example, a rural carrier associate or part-time flexible employee should not be compared to a regular rural carrier or letter carrier, as these are different types of appointments. If the employee's job was temporary and seasonal in nature, it should be compared to that of another temporary and seasonal employee.

(b) If the "same or most similar class" contains more than one employee, the EA should be asked to state the earnings of the employee who worked the "greatest number of hours" and therefore had the highest earnings. If the claimant's term of employment is less than a year, the earnings of the similar employee should be pro-rated to match the same term of employment as the claimant's.

(c) The selected employee's grade and step should also be provided for reference so that it will be on file for wage-earning capacity purposes.

(3) Claimant's prior-year non-Federal employment. The CE will usually need to explore the claimant's full employment history for the year before the injury. This may be accomplished by sending Form CA-1029 to the employee, Form CA-1030 to the EA, or by other means, such as requesting pay stubs or tax returns, or holding a telephone conference with the claimant or EA. The CE may also release Form CA-935 with the SSA-581 to the claimant, and then send the claimant's completed SSA-581 to the Social Security Administration.

Form CA-1027 may be sent to private employers to verify the claimant's reported earnings, but if the earnings appear reasonable, they may be used without verification. Only earnings in employment which is the same as, or similar to, the work the employee was doing when injured may be considered. For this reason, the CE must determine the nature of the employment. Any other relevant factors which may pertain to the employee's "average annual earnings" in the employment in which he or she was working at the time of the injury should be considered. These factors are too various to enumerate, so supportive rationale should be included in a pay rate memo.

(4) The "150 Formula." The last part of 5 U.S.C. 8114(d)(3) states that the average annual earnings shall not be less than 150 times the employee's average daily wage earned in the particular employment during the year just before the injury.

To obtain the average daily wage, the CE should divide the employee's gross earnings in the year prior to the injury by the actual number of days the employee worked. This figure is then multiplied by 150 and divided by 52.

However, in order to establish a provisional pay rate while obtaining other necessary information, the CE may calculate the daily wage on the actual date of injury and apply the 150 formula, i.e. hourly wage multiplied by the number of hours scheduled on the date of injury multiplied by 150 and divided by 52.

(5) To determine the employee's "average annual earnings" after development is complete, the CE should take the highest of:

(a) The earnings of the employee in the year prior to the injury, including any similar non-Federal employment;

(b) The earnings of a similarly-situated employee (see subparagraph (2) above); or

(c) The pay rate determined by the "150 formula."

(6) The CE should prepare a memorandum setting forth this determination and explaining the basis for it. This memorandum, which is subject to the certifier's concurrence, should be made part of the record. Unless conflicting evidence is present or a protest occurs, approval at a level higher than the certifier is not required.

(7) Absent evidence of varying pay rates, the CE need not investigate whether the pay rate changed during the year just before the injury. However, if such evidence is received, the CE should determine the employee's various pay rates during the year just before the injury and the number of days during such period the employee was paid at each rate. The average daily wage will be determined based on this evidence according to the number of days employed at each rate.

d. Employment without Pay -5 U.S.C. 8114(d)(4).

5 U.S.C. 8114(d)(4) states,

(d) Average annual earnings are determined as follows:

(4) If the employee served without pay or at nominal pay, paragraphs (1), (2), and (3) of this subsection apply as far as practicable, but the average annual earnings of the employee may not exceed the minimum rate of basic pay for GS-15. If the average annual earnings cannot be determined reasonably and fairly in the manner otherwise provided by this section, the average annual earnings shall be determined at the reasonable value of the services performed, but not in excess of $3,600 a year.

(1) Persons serving under 5 U.S.C. 8101(1)(B) - i.e., without pay or at nominal pay - come within the meaning of 5 U.S.C. 8114(d)(4). These persons usually have work schedules that are irregular as to hours worked per day and days worked per week, or the duration of the assignment is limited in some way.

The CE should consider these factors when determining a pay rate, using narrative letters or form letters CA-1027 or CA-1029 to request needed evidence. The CE should allow a pay rate based upon full-time employment only if the evidence clearly shows that the person had served on a full-time basis for substantially the whole year immediately preceding the injury, or that the assignment would have afforded employment for substantially the whole year.

(2) The EA should be asked to furnish the following evidence:

(a) A description of the duties performed by the claimant;

(b) Full details about the claimant's work schedule, including the hours worked per day, the days worked per week, the date when the claimant began the assignment, and the date when the assignment was to be completed; and

(c) The title, grade, and pay rate of a full-time position at the EA in which the service performed is the same or most similar to that performed by the injured person.

(3) The claimant should be asked to submit a signed statement showing all of his or her employment during the year immediately preceding the injury, including the names and addresses of employers, the type of work performed for each, and gross earnings exclusive of overtime from each employer.

(4) The CE should prepare a memorandum setting forth the pertinent facts and recommending a determination of the average annual earnings. The pay rate may not exceed the minimum rate of pay of an employee at the GS-15, step 10, level. A Senior CE or higher-level employee must concur with the determination.

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5. Effective Date of Pay Rate. This paragraph describes how to determine the date on which the pay rate should be based.

a. Disability Cases.

(1) In keeping with Section 5 U.S.C. 8101 (4), compensation in disability cases is computed using the pay rates in effect on:

(a) The date of injury (DOI);

(b) The date disability began (DDB); or

(c) The date disability recurred (DOR), if the recurrence began more than six months after the employee resumed regular full-time employment with the U.S.

The dates when compensable "disability began" or "disability recurred" are the dates the employee stopped work due to the injury, not the dates pay stopped. An increase of pay during the continuation of pay (COP) period does not change the pay rate for compensation purposes.

For occupational disease claims where the claimant remains exposed to the work factors claimed, the pay rate is the rate of pay effective the date of the last exposure to causal employment factors (which may be the date of a medical examination). If the claimant no longer remains exposed to the work factors claimed and there has been a change in work duties, e.g., limited duty, then the date of last exposure is used. See Patricia K. Cummings, 53 ECAB 623 (2002).

Peace Corps volunteers and VISTA and Job Corps enrollees are not covered by Section 5 U.S.C. 8101 (4); therefore, they are not entitled to a recurrent pay rate.

(2) The CE must first decide which date to use in establishing the pay rate for disability compensation. To do this, the CE should determine whether:

(a) The employee stopped work due to injury-related disability on or immediately after the date of injury; and

(b) The disability began at that time or is continuous from that time. If so, there is no choice and the DOI will be used.

(3) If the employee did not stop work on the DOI (or immediately afterward, defined as the next day), and the disability began at a later date, the case record should show the pay rate for the DOI and the DDB. The greater of the two will be used in computing compensation. If they are the same, the pay rate should be effective on the DDB. This is true even if the employee is working in private industry at the time the disability begins.

(4) Recurrences of disability are defined in FECA PM 2-1500 and 20 C.F.R. § 10.5(x). A recurrent pay rate applies only if the total or partial disability for work began more than six months after the first return to regular full-time employment (after the original disability) with the U.S. To be eligible for a recurrent pay rate, there need not be a "continuous" six months of full-time employment prior to the recurrence of disability. See Johnny Muro, 19 ECAB 104 (1967).

(a) The ECAB has defined "regular" employment as "established and not fictitious, odd-lot or sheltered," contrasting it with a job created especially for a claimant. The ECAB has also noted that the duties of "regular" employment are covered by a specific job classification, pointing out that the legislative history of the 1960 amendments to the FECA, which added the alternative provisions to section 8101(4), demonstrates that "Congress was concerned with the cases in which the injured employee had 'recovered' or had 'apparently recovered' from the injury." The test is not whether the tasks that appellant performed during his limited duty would have been done by someone else, but instead whether he occupied a regular position that would have been performed by another employee. See also Eltore D. Chinchillo, 18 ECAB 647 (1967) [Remanding the case for further development, the ECAB noted that if the employee only returned to work in a temporary position designed to keep him on the payroll until his future ability to perform shipfitter duties was ascertained, the employee did not resume "regular" full-time employment within the meaning of the statute.]; and Thomas M. Schuerman, 51 ECAB 336 (2000) [Going to Vocational Rehabilitation isn't returning to regular full-time employment.].

(b) "Full time" means returning to the same number of hours of work per week as prior to the injury. For example, a claimant who worked a standard 40-hour week before the injury and returns to work eight hours per day for only three days per week has not returned to full-time employment. For employees who worked regular part-time schedules when injured, the term "full-time" should be construed as "full-schedule."

(c) Entitlement to a recurrent pay rate based on return to private employment requires that the employee must have returned to Federal employment after the original disability and six months must have elapsed since that return-to-work date. (See FECA Program Memoranda Nos. 164 and 268.)

(5) If a recurrence of disability is established, the CE should compare the pay rates on DOI, DDB, and DOR. The greatest of these pay rates will be used to compute compensation. Accepting a recurrence does not automatically constitute a recurrent pay rate. The employee still needs to meet the requirements of paragraph 5(a)(4) above.

(6) Once the claimant has met the initial requirements for entitlement to a recurrent pay rate, subsequent recurrences qualify the claimant for a new recurrent pay rate, without regard for another six-month return-to-work requirement. In determining subsequent DOR pay rates, however, the claimant's work schedule at the time of recurrence must be taken into account.

A recurrent pay rate may be lower than the pay rate in effect on the DOI, DDB, or previous DOR. This can happen when the claimant is originally injured in full-time employment, and the recurrence occurs when the claimant is working part-time or has been rated for loss of wage-earning capacity (LWEC). Even if the EA reports a higher hourly pay rate for a DOR, the recurrent pay rate should be considered the actual weekly amount the claimant earned. In such cases, the pay rate on DOI, DDB, or a previous DOR, with the applicable effective date, would be used because it was higher.

(7) Due to application of cost-of-living increases, compensation based on the DOI pay rate may exceed the amount payable using the DOR pay rate. However, if the DOR pay rate is higher than the DOI pay rate, the DOR should be used, even if a lower payment of compensation will result. (See G.H., Docket 07-1738, 01/05/2009.)

(8) Payment of a schedule award does not entitle the claimant to a recurrent pay rate.

b. Non-Disability Cases.

(1) Claimants are entitled to receive compensation for medical appointments attended as a result of the injury. Medical appointments are not considered disability from work. Compensation for medical appointments should be computed on the pay rate in effect as of:

(a) The DOI, for traumatic injury claims;

(b) The date of last exposure (which is, in effect, the DOI), for occupational disease claims.

In an occupational disease claim, if the claimant continues to be exposed to the same work factors accepted as having caused the condition and claims compensation for medical appointments, the date of the first medical appointment is used as the DOI date, since that is the first date of any eligibility to compensation. Since the accepted period of exposure and/or work factors has already been determined, the effective pay rate date will not change unless the employee actually becomes disabled (e.g., surgery, lack of suitable work, etc.) or later files a claim for a schedule award (in which case the actual date of last exposure should be used as the DOI pay rate).

If the claimant did not lose any time from work but began working limited or modified duties due to restrictions imposed as a result of the accepted injury, then the date prior to the date the modified duty began should be used as a new DOI pay rate and pay rate effective date for purposes of paying compensation for ongoing medical appointments, since this is the date of last exposure to the work factors that were accepted by OWCP.

If the claimant then loses time from work due to disability resulting from the work injury, a new pay rate (DDB) would be established.

c. Schedule Award Cases. The pay rate used for the payment of the schedule award is the greatest of the established pay rates (DOI, DDB, or DOR). See Exhibit 1.

For occupational disease claims where the claimant remains exposed to the work factors claimed, the pay rate is the rate of pay effective the date of the medical examination. If the claimant no longer remains exposed to the work factors claimed and there has been a change in work duties, e.g., limited duty, then the date of last exposure is used. See Patricia K. Cummings, 53 ECAB 623 (2002).

Where there was no prior injury-related disability from work, the DOI pay rate should be used. However, the CPI-effective date is the beginning date of the schedule award, since that is the first date of any eligibility to compensation.

d. Death Cases. The pay rate in death cases is determined by the DOI, which is the date of death, unless a different pay rate has been reached in a disability claim due to delayed or recurrent disability leading to the death, or because the decedent was a minor or learner whose pay rate was re-determined according to 5 U.S.C. 8113(a). (See paragraph 12a below.)

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6. Elements Included in Pay Rate. This paragraph lists the increments of pay which may be included in the pay rate, either by statute or administrative determination.

a. Statutory Inclusions.

(1) 5 U.S.C. 8114 includes the following elements for determining an employee's pay rate:

(a) The employee's full salary or full cash wage;

(b) The value of any subsistence and quarters received for services in addition to the cash wage (not including subsistence and quarters furnished by the employer and paid for directly by the employee or by deduction from the employee's salary); and

(c) Premium pay for scheduled standby duty as provided by 5 U.S.C. 5545(c)(1).

(2) The employer does not usually provide subsistence and quarters to employees unless the conditions and place of employment render it impossible or impractical for an employee to obtain food and lodging from another source. Therefore, the CE need be concerned with subsistence and quarters only where:

(a) The industry or the employer customarily provides such services (e.g., crew members employed by the Military Sealift Command, employees aboard boats, dredges, barges, and floating plant vessels, or temporary firefighters working for the Forest Service);

(b) A quarters allowance is paid to personnel serving overseas, pursuant to Section 901(1) of the Foreign Service Act of 1946 and Executive Order No. 10011, dated October 22, 1948; or

(c) Item 18 on Form CA-6, section 8 on Form CA-7, or some other written evidence from the claimant or employing agency shows that the employer provided food and lodging.

b. Administrative Inclusions. It has been determined administratively that the following elements will be included in computing an employee's pay rate:

(1) Night differential is paid for regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m.

(2) Shift differential is paid to wage-grade employees and is typically 7.5% for the entire shift of a swing shift or shift 2. This differs from night differential in that shift differential is typically paid for the entire shift if the majority of that shift falls after or before the hours of 6:00 p.m.

(3) Extra compensation for performing work on Sundays or holidays paid to regular employees of the Postal Service.

(4) Premium pay for work on Sundays and/or Saturdays under 5 U.S.C. 5546(a), which provides for extra pay when an employee's regular work schedule includes an eight-hour period, any part of which falls on a Sunday or described as being within the period commencing at 12:00 a.m. Saturday and ending at 12:00 a.m. Sunday. Saturday pay is usually payable to health professionals working for the Department of Veterans' Affairs.

(5) Premium pay for work on holidays under 5 U.S.C. 5546(b), which provides for extra pay when an employee's regular schedule includes work on a holiday. This increment may not be paid for work which exceeds eight hours or which represents overtime.

(6) Retention pay when the employee is in a field which is difficult to staff or requires specific and/or difficult to hire employment, such as certain medical professionals, Military Sealift Command employees, or air traffic controllers. This will be documented by the agency if this is included and provided by the agency.

(7) Premium pay for administratively uncontrollable overtime (AUO), including holiday pay under 5 U.S.C. 5545(c)(2) (see also FECA Program Memoranda Nos. 106 and 280).

(8) Availability pay for criminal investigators pursuant to 5 U.S.C. 5545a. This increment (25% of basic pay) is paid to ensure the availability of investigators for unscheduled duty, and replaces AUO (see above) for these employees.

(9) Extra pay received by immigration inspectors for work performed between 5:00 p.m. and 8:00 a.m., and for all work performed on Sundays and holidays (see FECA Program Memorandum No. 68).

(10) Extra pay received by customs inspectors for work performed between 5:00 p.m. and 8:00 a.m., and for all work performed on Sundays and holidays, until January 1, 1994 (see FECA Program Memoranda Nos. 278 and 281).

(11) Wages paid for National Guard service when membership in the National Guard is a condition of the employee's civilian employment with the Guard.

Earnings received for active Federal service under a Presidential call are also included. A Presidential call is a statutory method by which reservists can be involuntarily ordered to active duty. Any extra wages earned for this specific service under a Presidential call should be obtained for the year prior to the date of injury, since serving under a Presidential call is not a voluntary action. This should be divided by 52 weeks and added to the basic pay rate. Other supplemental Reserve pay, obtained through voluntary actions of the employee, is not included. (See R.E., ECAB Docket 2008-1728, issued April 10, 2009.) [Any compensation that was paid for other voluntary active duty pay prior to the issuance of this ECAB decision is not considered an overpayment of compensation.]

(12) Extra pay authorized under the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(k), for emergency medical technicians and other employees who earn and use leave on the basis of their entire tour of duty, and who are required to work more than 106 hours per pay period. GS-081 firefighters with pay-rate effective dates prior to October 11, 1998 would also be included in this section.

Such pay may be included retroactive to July 21, 1987, when OPM made changes in its regulations. To be entitled to an adjustment in the pay rate, the claimant must have been in pay status on or after that date. If retroactive payment is authorized in a long-term disability case, the pay rate must be adjusted so that CPIs will be included.

(13) The Federal Firefighters Overtime Pay Reform Act of 1998 (Public Law No. 105-277) amended Title 5 of the U.S. Code to define hours worked by firefighters in excess of 106 bi-weekly, or 53 weekly, as "overtime." Public Law 106-554, which was enacted in December 2000, contained language establishing that those hours in excess of 106 bi-weekly (or 53 weekly) should not be considered "overtime" pay for the purpose of computing pay under Section 5 U.S.C. 5545b. These changes became effective the first day of the first pay period after October 1, 1998. (This date is presumed to be October 11, 1998.) This change applies only to GS-081 firefighters who are covered by Section 5 U.S.C. 5545b.

The Federal Firefighters Overtime Pay Reform Act of 1998 provides "overtime" for hours in the regular tour of duty to both FLSA nonexempt and exempt firefighters. The weekly pay rates are computed in the same manner for both types of firefighters, except there is a cap on the "overtime" hourly rates for FLSA exempt firefighters. The cap is set at 1.5 times the GS-10, step 1 hourly rate (computed using the 2087 divisor and including any applicable locality pay), but the capped rate may not fall below the individual firefighter's hourly rate of basic pay.

(14) Premium, hazard and penalty pay for crew members employed by the Military Sealift Command is granted by the master of the ship they work for and is only paid depending on the needs of this ship and its particular mission. Not all crew members may earn these pay elements, but these are payments for involuntary duties.

The following are considered "leave supplements" that are paid to all unlicensed crew members or watch-standing officers by the Military Sealift Command, to compensate for overtime, penalty or premium pay that is not earned while on authorized leave. The leave supplement is a means of maintaining wage differentials among the crew, and is not among the categories of pay excluded by Section 5 U.S.C. 8114(e).

(a) Hazard pay. This is only earned when the boat is in a combat zone during wartime. When the ship is not in a combat zone, this cannot be earned by any crew member.

(b) Premium pay. This is dependent on the position and duties of the crew member and granted by the master of the ship itself when a crew member is ordered to do specific tasks that will require a minimum of two hours to perform.

(c) Penalty pay. This is paid when a specific task requires a crew member to miss meals or sleep (such as a task which is required at night).

(d) Subsistence pay. This is paid when a crew member lives over 50 miles from his or her regular duty station and is waiting for work and in an official standby waiting status; this will be granted by the master of the boat.

(e) Habitability pay. This is paid when crew members are required to stay on shore while their assigned boat is being serviced in dry dock.

(f) Retention Allowance. This is paid as an incentive to retain personnel such as able seamen or engineers.

(g) "Non-watch" or Non-watch-standing pay. This is paid to able seamen or engine personnel who are performing security duties for a particular boat. These are the only two types of employees who may earn this pay as part of their assigned duties.

The extra pay the claimant earned for these items in the year prior to the effective pay rate date should be requested from Military Sealift Command payroll or injury compensation staff, since the amount earned can vary widely.

(15) FAA Air Traffic Controller (ATC) Pay. Along with night differential, Sunday premium, or holiday pay, an ATC can earn the following extra pay, as it is involuntarily earned based upon the employer's needs: Controller-in-Charge and controller retention or incentive pay.

(16) "Arctic bonus" pay received by personnel working at Foreign Arctic Weather Stations of the National Oceanic and Atmospheric Administration, Department of Commerce.

(17) "Dirty-work pay" extended to employees who work under conditions which soil the body or clothing more than normally expected in performing the duties of the job.

(18) "Hazard pay" when it is included for work which is recurrent in nature and part of the employee's normal duties. This is not to be confused with "danger pay" awarded for hazardous services in time of war, which is excluded as described in the next section.

(19) Locality pay or "COLA" (cost-of-living allowance) paid to certain employees as part of their normal pay and in addition to their salary, because of differences in cost of living within the U.S. and its possessions (e.g., Puerto Rico).

(20) "Remote worksite allowance" under the provisions of 5 U.S.C. 5942 paid to certain employees assigned to regular duty at designated locations so remote from the nearest established communities or suitable places of residence as to require an appreciable degree of expense, hardship, and inconvenience beyond that normally encountered in metropolitan commuting.

(21) "Post differential" paid under 5 U.S.C. 5925. This is regarded as a special recruitment and retention allowance granted because of the overall environmental conditions or rigors of the particular post. It is not a cost-of-living differential or economic equalization factor, which would be excluded from the pay rate for compensation purposes.

(22) Dive pay is authorized for wage system employees for those hours when they are actually performing diving duties. The pay rate is 175 percent of the WG-10, step 2 rate, adjusted for locality.

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7. Elements Excluded from Pay Rate. This paragraph list the increments of pay which may not be included in the pay rate, as determined either by statute or administrative decision.

a. Statutory Exclusions. 5 U.S.C. 8114(e) excludes the following elements from an employee's pay rate:

(1) Overtime pay. The extra pay required by the Fair Labor Standards Act (FLSA) for hours worked in excess of the standard prescribed under the FLSA is not to be included in computing pay for the purposes of continuation of pay or compensation. Such extra pay is earned only if the actual hours are worked and is considered to be overtime pay for the purposes of 5 U.S.C. 8114(e).

(2) Additional pay or post-allowance authorized outside the United States and its possessions because of differential in cost of living or other special circumstances. The separate maintenance allowance authorized in 5 U.S.C. 5923(3) is also excluded, since it is a cost-of-living allowance paid to an employee in a foreign area.

(3) Bonus or premium pay for extraordinary service, including "danger pay," which is any amount paid as a bonus for particularly hazardous services in time of war.

b. Administrative Exclusions.

(1) Per diem received by an employee while in a travel status.

(2) Extra allowance paid for an employee's use of his or her private motor vehicle (such as rural carriers for the US Postal Service).

(3) Unemployment compensation.

(4) Earnings from dissimilar concurrent employment. For example, if the claimant works for the Federal Government as a part-time secretary and also works as a cashier part time for a private employer, the earnings from the cashier position would not be included in the pay rate. However, such earnings may help in determining the claimant's ability to work full time. (See section 4(a)(3) above.)

(5) Earnings as an activated reservist or National Guard member when the activation is not as a result of a presidential call under §12301(a), §12302, or §12304 of Title 10, United States Code (See R.E.. Docket 08-1728, 04/10/2009.)

(6) Earnings as a reservist or National Guard member when the membership is not a condition of the employee's civilian employment with the Guard or Reserve.

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8. Applying Increments of Pay. This paragraph discusses when the CE may accept the amounts of differential pay increments as reported and when to seek clarification. The CE should normally not delay a payment to obtain such clarification, which can be obtained in writing or by a phone call to the EA and then documented by placing a CA-110 in file.

a. Receipt on Regular Basis. If an additional amount or percentage was paid for premium, night differential, Sunday, holiday, shift pay, FLSA extra pay, or firefighters extra pay (see paragraph 6 in this chapter), and the file contains no evidence showing that this amount varies or is paid irregularly, the CE may add the indicated amount or percentage to the base pay reported without further inquiry. The CE should verify with the employing agency whether shift differential is included with the base pay provided for wage-grade employees.

b. Varying Amounts. If the evidence shows that the amount or percentage paid for premium, night differential, Sunday, shift pay, FLSA extra pay, or firefighters extra pay varies or is paid irregularly, the CE should determine the amount of additional pay received during that year and add it to the reported base pay. (See subparagraph 8(c) below concerning FLSA pay and subparagraph 8(d) below concerning firefighters' pay.)

c. FLSA Pay for Firefighters. The pay rates of individuals entitled to this increment of pay are based on annual pay rate and percentage of premium pay. Their pay is based on 144 hours of work each 14-day pay period, of which 106 are regular hours and 38 are FLSA overtime hours. The number of biweekly hours should be verified with the employing agency if not readily determined in the case documentation. The formula is as follows:

(1) Yearly pay/26 = basic biweekly pay.

(2) Basic biweekly pay x premium pay percentage = standby premium pay.

(3) Basic biweekly pay + standby premium pay = total pay without FLSA Overtime.

(4) Total pay without FLSA OT/144 = hourly regular rate.

(5) Hourly regular rate x .5 x 38 = FLSA overtime.

(6) Total pay without FLSA OT + FLSA overtime = total pay.

d. GS-081 Firefighters Pay. Under the Federal Firefighters Overtime Pay Reform Act of 1998, there are two categories of firefighters based on the type of work schedule. Different pay computation rules apply to each category.

(1) Firefighters with regular tours of duty generally consisting of 24-hour shifts (which is the most common situation).

(a) Annual salary / 2756 (53 hours of regular pay per week X 52 weeks) = firefighter hourly rate.

(b) Firefighter hourly rate X 106 hours = biweekly base pay.

(c) Firefighter hourly rate X 1.5 = "firefighter overtime" rate (subject to GS-10, step 1 cap as described in PM 2-0900.7.b.(22).

(d) "Firefighter overtime" rate X number of hours in regular tour in excess of 106 hours = biweekly "firefighter overtime."

(e) (Biweekly base pay + biweekly "firefighter overtime") / 2 = weekly pay rate.

(Note: most 24-hour shift firefighters have a regular biweekly tour of 144 hours (six 24-hours shifts), consisting of 106 regular hours and 38 "firefighter overtime" hours; thus, 38 hours (144-106) would be used in step (d) above.)

(2) Firefighters with an extended regular tour built on top of a 40-hour basic workweek.

(a) (Annual salary / 2087) X 80 hours = biweekly base pay.

(b) Annual salary/ 2756 = firefighter hourly rate.

(c) Firefighter hourly rate X 26 hours = additional biweekly base pay.

(d) Firefighter hourly rate X 1.5 = "firefighter overtime" rate (subject to GS-10, step 1 cap as described in PM 2-0900.7.b.(22).

(e) "Firefighter overtime" rate X hours in regular tour in excess of 106 hours = biweekly "firefighter overtime".

(f) (Biweekly base pay + additional biweekly base pay + biweekly "firefighter overtime") / 2 = weekly pay rate.

(Note: a common schedule would be a 40+16 weekly tour, which translates into a biweekly tour of 112 hours, including 6 "firefighter overtime" hours to be used in step (e) above.)

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9. Computing Daily Pay Rate. This paragraph provides guidance on how to compute daily pay rates, which may be used under the circumstances noted below. However, in practice, payments in disability claims are almost always based on the weekly rate.

a. Criteria. A daily pay rate may be used only when all of the following four tests are met:

(1) The injury caused only temporary total disability.

(2) The period of compensable disability (the period for which compensation is paid) does not, or is not expected to, exceed 90 calendar days.

(3) No additional increments of pay (e.g. Sunday premium, shift differential, etc.) are involved.

(4) The "average annual earnings" of the employee are not readily determinable.

b. Length and Permanency of Disability. In deciding whether the injury will likely cause permanent disability or a period of temporary total disability exceeding 90 calendar days, the CE must consider the nature and severity of the injury; the medical prognosis; the age of the employee; and the nature of the employment. When it is unclear whether permanent effects will result from the injury, or whether the temporary total disability will exceed 90 calendar days, and the "average annual earnings" cannot be readily determined, the CE should set up payment based on the daily pay rate and make appropriate inquiries to develop the weekly pay rate.

If the disability extends beyond 90 calendar days, the CE will need to reassess the pay rate.

c. Fixed Schedule. Where the evidence on Form CA-1 or CA-2 shows that the employee works the same hours on a daily basis and the same days each week, the CE will determine the actual daily wage according to how it is reported:

(1) If the wage reported is on a daily basis, the amount shown will be used as the actual daily wage;

(2) If the wage reported is on an hourly basis, the actual daily wage will be computed by multiplying the hourly pay by the hours worked per day shown in item 20 on Form CA-1 or item 21 on Form CA-2; or

d. Intermittent Schedule. Where Form CA-1 or CA-2 shows that the employee did not work the same hours per day or the same days per week, the CE should obtain the actual dates worked during the month immediately preceding the injury to determine whether the employee worked a reasonably regular schedule of 5, 5 ½, or 6 days per week, for example. This is necessary to determine the actual days of compensation entitlement.

If the claimant worked a reasonably regular schedule, the actual daily wage will be computed by dividing the employee's gross earnings during the month just before the injury by the actual number of days the employee worked during such period.

e. If paying compensation on a daily rate, the employee is paid for the days he or she would have worked but for the injury (work days). For example, a married worker sustains an ankle fracture on her third day of employment and stops work. She is disabled for 17 days before returning to her full, regular duties. The employee was hired on a temporary basis and makes $10.00 per hour. The EA reports that the claimant worked 15 total hours during her 3 days of employment. The daily pay rate would be calculated as follows:

15 hours divided by 3 days = 5 hours per day
$10.00 per hr X 5 hrs per day = $50.00
$50.00 X ¾ = $37.50 per day compensation rate
$37.50 x 17 days lost = $637.50

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10. Computing Weekly Pay Pate. This paragraph provides guidance on how to compute a basic weekly pay rate, depending on the form in which pay is reported:

a. Annual Basis. An annual salary, which may be reached either by report from the employing agency or determination of average annual earnings, is divided by 52.

b. Daily Basis. The amount shown is multiplied by 5 for a five-day workweek, 5½ for a five-and-a-half day workweek, and so on.

c. Hourly Basis.

(1) For Postal Service employees, the amount shown is multiplied by 2080, and then divided by 52.

For USPS employees who work less than a full schedule, the figure of 2080 hours should be prorated (e.g. 1040 hours when the employee works four hours per day), then multiplied by the amount shown; or

(2) For regular Federal employees, the amount shown is multiplied by 2087 (by administrative determination, the number of hours in a full work year based on a 40-hour work week). This figure is then divided by 52.

For employees who work less than a full schedule, the figure of 2087 hours should be prorated (e.g., to 1043.5 hours when the employee works four hours per day), then multiplied by the amount shown.

The figure of 2087 hours equals 52 weeks plus .875 of one workday. To calculate increments of pay (night, Sunday, etc.), first multiply the hourly increment by 2087, then divide the sum by 52 to obtain the amount of the weekly increment.

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11. Computing Monthly Pay Rate. This paragraph describes how to compute a monthly pay rate, which is used in death cases. To do so, the CE must first determine the employee's "average annual earnings" in the manner provided by Section 5 U.S.C. 8114(d) and the instructions appearing in paragraph 4 above. This figure is then divided by 12. For example, if the average annual earnings are determined to be $65,000, the claimant's monthly pay rate would be established as $5,416.67 ($65,000/12).

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12. Special Determinations. This paragraph defines the rules for determining pay rates based on unusual terms of employment, pay scales, or increments of pay.

a. Minors/Learner's Capacity. Section 5 U.S.C. 8113(a) states that: If an individual (1) was a minor or employed in a learner's capacity at the time of injury; and (2) was not physically or mentally handicapped before the injury; the Secretary of Labor...after the time the wage-earning capacity of the individual would probably have increased but for the injury, shall recompute prospectively the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to the probable increased wage-earning capacity. David J. McDonald, 50 ECAB 185, Docket No. 96-1144; December 10, 1998 (Appellant not entitled to a learner's capacity) contains a good discussion of this topic.

The FECA does not define the term "minor", and whether a person has attained his or her majority must be determined under state law of the claimant's domicile. Since the interpretation of state laws and judicial decisions is involved, any case where this issue arises should be referred to the National Office for a determination.

b. Cadets at Federal and State Maritime Academies. Cadets at Federal and State Maritime Academies do not receive wages while in training, but they are provided with a monthly allowance for subsistence, quarters, etc. This sum will serve as the basis for computing compensation. However, cadets are working in learners' capacities, and the pay rate may be recomputed according to the provisions of Section 8113(a) where appropriate.

c. Peace Corps Volunteers, Volunteers in Service to America (VISTA), and Job Corps Enrollees. (See also FECA PM 2-1700.) Entitlement to compensation for these groups of employees does not begin until the volunteers or enrollees are separated from their employment. The pay rate to be used is the one in effect at the time of separation.

(1) For Peace Corps Volunteers, the pay rate is set at the GS-7, step 1 level, and for Peace Corps Leaders, it is set at the GS-11, step 1 level. For injuries on or after September 7, 1974, the pay rate of Peace Corps Volunteers designated as "heads of households" is set at the GS-11 rate. Locality pay is not included. See 5 U.S.C. 8142.

(2) For VISTA Volunteers injured on or after October 1, 1993, the pay rate is set at the GS-5, step 1 level. (Before that time, the pay rate was set at the GS-7, step 1 level.); or

(3) For Job Corps enrollees, the pay rate is set at the GS-2, step 1 level. See 5 U.S.C. 8143.

d. Department of Agriculture--Cooperative Employees. For a person working with the Department of Agriculture under a cooperative agreement with a non-Federal public or private organization, the CE should compute the pay rate based on the total salary received from the Department of Agriculture and the cooperating organizations. Form CA-7 or some other report from the employing agency should show the gross salary received by the employee from all entities involved. The CE should request this information from the employing agency if it is not received with the original reports. Any compensation payable should be reduced by the amount which the non-Federal organization paid to the claimant.

e. Census Enumerators and Crew Leaders - 2010 Census. (For injuries occurring during previous censuses, consult the National Office.) Information about calculating compensation for these employees may be found in FECA PM 2-0901.

(1) For the 2010 census, the Bureau of the Census hired individuals in Local Census Offices (LCOs) throughout the U.S., including Alaska, Hawaii and Puerto Rico. Most employees in LCOs were either enumerators or crew leaders on temporary (not-to-exceed 180 days) appointments.

(2) All temporary-hire positions, including enumerators and crew leaders, were paid on an hourly basis. Wages in the LCOs varied by geographical area, and pay types were assigned accordingly. Any questions regarding pay rates can be referred to the Bureau of the Census, Demographic and Decennial Staff, at (301) 763-9620. Following are the hourly wage rates for enumerators, crew leaders and clerks:

Enumerator: $10.93 to $22.10
Crew Leader: $12.43 to $23.60
Clerk: $8.20 to $15.82

(3) Based on an analysis of the 2000 Census data, the Bureau of the Census determined that, on average, enumerators worked 4.5 hours per day, 4 days per week. The work patterns for the 2010 Census were anticipated to be similar to the 2000 Census. However, individuals may have worked more or less depending on the LCO's operational requirements, and the factual evidence should be evaluated carefully. Because of their irregular Federal employment, these employees are usually paid under the provisions of 5 U.S.C. 8114(d)(3), as outlined in 4(c) of this chapter.

(4) Temporary hire workers may have worked more than one "operation" or assignment during the course of their employment for the census. The CE should evaluate the particular duty requirements for each position when determining whether any collateral or consecutive jobs constitute "same or similar employment" under §8114 of the Act when calculating compensation.

f. Special Census Employees. The Census Bureau sometimes enters into contracts with state, county and city governments to conduct various types of surveys. Most of the workers are hired for very short periods of time, and they are paid directly by the local entity conducting the study. As they are covered under separate legislation, it has been determined that they are not eligible for COP (Reference 20 CFR §10.200). The CE should follow the guidance given above in paragraph 4 to establish their average annual earnings.

g. Performance-Based Alternative Pay Systems (Pay Banding). Some Federal agencies have adopted the use of performance-based alternative pay systems. There are numerous performance-based pay systems, but they all link individual base pay and bonuses to performance. Most options do not provide for any automatic pay increases. These pay systems give managers more flexibility in setting the pay for new employees (as well as current employees).

In performance-based pay systems (also known as pay banding), agencies may collapse the 15 General Schedule grades into a smaller number of pay ranges. For example, the GS grades could be collapsed into four bands which cover GS-1 through 5, GS-6 through 11, GS-12 through 13, and GS-14 through 15. Once the bands are defined, the agency may hire an employee at any pay amount within a band and determine how employees move within and across bands.

(h) Reemployed annuitants. The pay rate should be based on the salary of a full-time Federal worker. Section 8114(d)(3) of the Act provides that the pay rate used should reasonably represent the pay rate of the employee in the Federal job when injured and of other Federal employees in the same or similar class. However, if a claimant has private sector earnings which are similar to the part-time Federal job duties, the employee's pay rate must be established under Section 8114(d)(3).

Note: If a reemployed annuitant officially retired prior to the stated injury, he or she must make an election between FECA benefits and OPM (see FECA PM 2-1000).

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Exhibit 1 - DETERMINING EFFECTIVE PAY RATE DATE FOR SCHEDULE AWARDS

Traumatic Injury Claims -

With prior disability:

Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
SA Start Date = DMI (date of maximum medical improvement)
CPI Start Date = DOI, DDB, or DOR (pay rate effective date)

Without prior disability:

Pay Rate Date = DOI
SA Start Date = DMI
CPI Start Date = DMI

Occupational Disease Claims -

With prior disability, working full duty (still exposed to injurious work factors) at time of rating exam:

Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
    (DOI = Date of Last Exposure (DLE) = Date of Impairment rating exam)
SA Start Date = DMI
CPI Start Date = DOI, DDB or DOR (pay rate effective date)

With prior disability, not working or working limited duty at time of rating exam:

Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
SA Start Date = DMI
CPI Start Date = DOI, DDB or DOR (pay rate effective date)

Without prior disability:

Pay Rate Date = DOI
    (DOI = DLE = Last date exposed to causal employment factors in full-duty capacity or date of medical exam if still exposed)
SA Start Date = DMI
CPI Start Date = DMI

Occupational Hearing Loss and Asbestosis Claims -

When claimant is disabled due to occupational hearing loss or asbestosis:

Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
SA Start Date = DMI
CPI Start Date = DOI, DDB or DOR (pay rate effective date)

When there is no disability, claimant has continuing exposure:

Pay Rate Date = DOI
    (DOI = DLE = date of last exposure before diagnostic exam - audiogram/chest x-ray)
SA Start Date = DMI
CPI Start Date = DMI = date of audiogram or chest x-ray

When there is no disability, retired:

Pay Rate Date = DOI
    (DOI = date of retirement or last documented date of exposure to hazardous noise or asbestos)
SA Start Date = DMI
CPI Start Date = DMI = date of last audiogram or chest x-ray

*    The SA start date can be moved forward in time if documented in the case file. However, it cannot be moved back in time. See PM 2-808-7.

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Chapter 2-0901, Compensation Claims

Paragraph and Subject

Date

Trans. No.

Table of Contents

02/13

13-06

1. Purpose and Scope

02/13

13-06

2. Responsibilities

02/13

13-06

3. Certification

02/13

13-06

4. Receipt of Claims

02/13

13-06

5. Development of Compensation Claims

02/13

13-06

6. Factors in Calculating Compensation

02/13

13-06

7. Period of Entitlement

02/13

13-06

8. Work Days/Calendar Days

02/13

13-06

9. Basic Calculations

02/13

13-06

10. Special Determinations

02/13

13-06

11. Waiting Days

02/13

13-06

12. Compensation Rate

02/13

13-06

13. Minimum Compensation (MIN)

02/13

13-06

14. Maximum Compensation (MAX)

02/13

13-06

15. Insurance Deductions

02/13

13-06

16. Consumer Price Index Adjustments

02/13

13-06

17. Other Payees

02/13

13-06

18. Leave Buy Back (LBB)

02/13

13-06

19. Wages Lost for Medical Examination or Treatment

02/13

13-06

Exhibits

Exhibit 1: Minimum Compensation Rates

02/13

13-06

Exhibit 2: Maximum Compensation Rates

02/13

13-06

Exhibit 3: Cost-Of-Living Adjustments

02/13

13-06

Exhibit 4: Activity Codes

02/13

13-06

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1. Purpose and Scope. This chapter discusses the development of compensation claims, explains how to calculate compensation, and provides formulas for calculating basic entitlements. This chapter also covers payment certification, waiting days, work days/calendar days, compensation rates, minimum and maximum compensation limits, deductions for insurance, Consumer Price Index (CPI) increases, payees other than the claimant, leave buy-back (LBB), and wage loss for medical appointments.

Information related to compensation payments may also be found in other chapters of the FECA PM.

a. Pay rates are discussed in FECA PM 2-0900, Calculating Pay Rates.

b. Continuing payments on the periodic roll (PR) are addressed in FECA PM 2-0812.

c. Schedule awards are addressed in FECA PM 2-0808.

d. Compensation in death cases is addressed in FECA PM 2-0700.

e. Dual benefits and elections between various entitlements are discussed in FECA PM 2-1000.

f. Lump-sum payments are discussed in FECA PM 2-1300.

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2. Responsibilities.

a. Adjudication. Claims Examiners (CEs) are responsible for adjudicating each claim for compensation. Claims that are not payable upon receipt should be developed and then adjudicated after the allotted time for a response (generally 30 days) has passed. If the claim is not payable, a formal decision is required. If the claim is payable, the CE is responsible for calculating and paying compensation.

The adjudication and case status codes should be updated in the case management system when a claim is adjudicated. These codes are discussed in FECA PM 2-0401.

b. Calculation. The CE is responsible for determining all factors involved in calculating payments, to include the pay rate, compensation rate, number of days, insurance deductions, etc. The CE may also be responsible for the manual calculations in some cases where the automated system cannot perform the calculations.

Fiscal personnel may also be involved in various parts of this process, including the manual calculation of payments. Any manual calculation should be documented in the file.

c. Data Entry. Once the CE has determined each element of the payment and documented all elements of the payment appropriately, the CE is responsible for entering payment data directly into the case management system in order to initiate the payment.

The CE should verify the claimant's current payment address, which may be different from the mailing address, prior to initiating a payment. If the address is incorrect, the address must be updated and certified prior to making the payment. The CE should also verify whether the claimant has electronic funds deposit (EFT), and ensure that the claimant's account information is recorded in the compensation management system.

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3. Certification. Payments will not be issued without being properly certified. By certifying a payment, the certifier is verifying that the adjudication and calculation of the payment (including all pay elements) are correct, that all payment data is entered correctly in the case management system, and that all pay elements entered correspond with the documentation in the file.

a. Certification levels are as follows, though an individual may be specifically delegated to certify payments at a higher level for a period of time by his or her supervisor:

(1) General GS-12 CEs may certify payments up to $15,000.

(2) A GS-12 Senior Claims Examiner (SrCE) may certify payments up to $50,000.

(3) Payments over $50,000 must be certified by a Supervisory CE, GS-13 or above.

(4) Payments over $99,999 must be certified by the District Director (or Assistant District Director).

b. Types of Payments.

(1) Lump-sum schedule award payments must be certified by a Supervisory CE or higher-level authority. See PM 2-1300.

(2) The following payment types must be certified by a SrCE or higher. No delegation is authorized.

(a) Placement on the periodic roll

(b) Loss of Wage-Earning Capacity (LWEC) payments

(c) Survivor benefits

(3) The following payment types must be certified by a GS-12 CE or higher-level authority. A Supervisory CE may individually grant certification authority to a GS-11 Claims Examiner for the following payment types.

(a) Initial payments

(b) Payment adjustments (e.g. changes to compensation rate, pay rate, etc.)

(c) Leave buy back

(d) Continuing payments for temporary total disability (TTD) or intermittent wage loss

(e) Schedule Awards

(4) Self-Certification. A GS-12 CE or higher-level authority may be authorized to self-certify ongoing payments for TTD or intermittent wage loss where only the period of entitlement is being changed if the initial payment has already been certified. If any other pay element is being adjusted (e.g. pay rate, pay rate effective date, compensation rate, etc.), certification by a different examiner is required. This delegation for self-certification is specifically made, and is distinct from the delegation outlined in paragraph 3b(2) and 3b(3).

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4. Receipt of Claims.

a. Initial Claim for Compensation after Continuation of Pay (COP). In traumatic injury cases, as outlined in FECA PM 2-0807, if medical evidence demonstrates that disability is expected to continue beyond 45 days, the Employing Agency (EA) should give Form CA-7 to the employee by the 30th day of the COP period and submit the completed form to the OWCP by the 40th day of the COP period, if a completed form is returned by the employee. See 20 C.F.R. §10.111(b).

(1) If an initial Form CA-7 is received immediately following the COP period, the CE may use the authority provided by the FECA to approve a payment for a period not to exceed 15 days into the future (15 days post termination of COP) if disability for the period is medically supported, and the EA verifies that the claimant has not returned to work at the time the payment is processed. (This authority does not extend to occupational disease claims and applies only to the initial 15-day period following COP in cases of traumatic injury.)

(2) Payment may be approved even if the Form CA-7 received was signed prior to the dates claimed. If the claim was submitted in advance, however, the CE should verify that the employee has not returned to work at the time of processing the payment. If a payment is processed with future dates, the CE should advise the claimant in writing of his/her obligation to advise the OWCP immediately if he/she returns to work, since an overpayment could be created. Payment should not be authorized if the attending physician states that the employee can return to duty but the employee does not return, makes an unauthorized change in physicians, and subsequently submits medical evidence of disability from the second physician.

See FECA PM 2-0807-15 for a complete discussion of the initial claim for compensation after COP.

b. All other Initial and Subsequent Claims for Compensation. 20 C.F.R. §10.102(b)(1) provides that it is the employee's responsibility to submit Form CA-7 for any period of disability. Without receipt of such claim, the OWCP has no knowledge of continuing wage loss. Therefore, while disability continues, it is expected that the employee should submit a claim on Form CA-7 each two weeks until otherwise instructed by the OWCP.

(1) The discretion to process a payment for dates into the future applies only to initial claims for compensation following COP in traumatic injury cases, as outlined above. For all other claims, the EA must verify work/leave status when submitting the form, and this can only be done once the period has passed.

(2) The CE can key a payment through the date the EA signed the form only if the medical evidence supports the claimed disability. See paragraph 5a below. The EA must verify Leave Without Pay (LWOP) status when submitting this form, and this can only be done once the period has passed; LWOP status cannot be verified into the future.

(3) If the entire period claimed cannot be paid, the CE should "split" the claim prior to keying the payment so that the initial period can be paid and the remaining period for dates into the future can be coded as Not Payable. The claimant should then be advised via letter to submit a new claim for the additional dates once the period has passed.

(4) If a claim is received and all dates claimed are in the future, the Form CA-7 can be coded as Not Payable. The claimant should be advised via letter to submit a new claim once the period has passed.

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5. Development of Compensation Claims. Development may be required to adjudicate the claim, make the payment, or both. Therefore, it will be necessary for the CE to request additional information when a claim for compensation is received, but there is insufficient evidence of record to pay the claim.

a. Initial Review. Prior to adjudicating a claim for compensation, the CE must determine if the medical and factual evidence of record supports the claim that has been submitted.

(1) The factual evidence must establish that the claimant actually lost time from work on the dates claimed. Clear verification of dates and hours lost should be provided by the EA on the Form CA-7, Form CA-7a, and/or any supporting documentation. If the EA did not verify the claimed dates, or if the verification is ambiguous, clarification is necessary. If not clear, the CE should also verify the dates of Continuation of Pay (COP) and any leave used following the injury.

The factual evidence may also require development if the Form CA-7 or other documentation in the case file indicates the claimant has (1) other employment, or (2) is in receipt of a prohibited dual benefit (such as a retirement annuity from the Office of Personnel Management) during the period claimed.

(2) The medical evidence must establish that the lost time claimed was the result of the accepted work injury.

(a) To be eligible for compensation, the medical evidence should support that the claimant is disabled as a result of the accepted work injury. The evidence should either establish that the claimant is precluded from performing any type of work, or that the claimant has work restrictions due to the injury that the employing agency is not able to accommodate.

(b) To be eligible for compensation for lost time from work due to a medical examination or treatment, the medical evidence should establish that the claimant attended an examination or treatment for the accepted work injury on the date(s) claimed. These cases are further discussed in paragraph 19 of this chapter.

(3) If the evidence submitted supports the claim for compensation, the CE can proceed with calculating the compensation due and initiating the payment. Clarification may be needed, however, to obtain the information necessary to make the payment.

(4) If the evidence submitted does not support the claim for compensation, the CE must develop the claim before payment can be considered. Development may also be needed to obtain the information necessary to make a payment, and this should be requested simultaneously with the evidence needed to support the claim so that payment can be made quickly if the compensation claim is ultimately approved.

b. Development Actions. If it is determined that additional evidence is necessary before a claim for compensation can be adjudicated or a payment can be processed, the CE should decide from whom to request this information, and the most appropriate and efficient method for obtaining it so that the payment can be processed as soon as possible. CEs should avoid requesting evidence which is already contained in the file or for which no need is anticipated.

(1) Obtaining Evidence from the Claimant. If the evidence of file is insufficient to support the period claimed, the CE should provide the claimant (and authorized representative, if any) with notice and an opportunity to respond and furnish the required evidence. The request should be tailored to the specifics of the case and clearly explain that failure to submit the necessary information within 30 days may result in the denial of the specific claim for compensation.

At times the CE may contact the claimant via telephone if only basic information is needed, but usually the type of evidence needed from the claimant to support a compensation claim is best obtained in writing, e.g. medical evidence to support disability, factual evidence concerning any employment during the period claimed, etc.

(2) Obtaining Information from the Employing Agency (EA). If the CE needs pay or benefits information from the EA prior to making a payment, calling the EA to obtain the information and then documenting the file with a CA-110 (pending receipt of written confirmation) is preferred (as opposed to requests made via mail) so that payments can be made as quickly as possible. This communication can also be accomplished via secure email with the EA to and from a government network.

If the EA does not respond timely to these requests, the CE should request the required information via letter, and a copy of this letter should be forwarded to the claimant. Note - While it may be necessary to send a letter to the EA for pay information, this typically should not delay an initial payment to the claimant, since in most instances payment can be made using a temporary (base or minimum) pay rate while awaiting more precise pay information.

Evidence submitted by an EA that is supported by records will usually prevail over statements from the claimant, unless such statements are supported by probative evidence.

(3) For a claim to be placed into development status, a specific development action should coincide with the date of the status, e.g. a letter to the claimant requesting medical evidence to substantiate disability for the period claimed. A telephone call to the claimant or EA may be used to obtain necessary information quickly, but may not be used as the basis for placement in development status.

(4) If a claim for compensation is received with the initial claim for injury (or any time prior to acceptance of the case), the compensation claim should placed into a development status, but a determination should be delayed until the case is adjudicated. The claimant should be notified that any claims received prior to adjudication of the claim will be reviewed if the case is accepted. If the case is later accepted, the claim for compensation should be considered at that time. If the case is later denied, the claim status should be updated to reflect the denial and no further action is needed.

These same basic procedures should also be followed if claims for compensation are received with (or after) a Form CA-2a, Claim for Recurrence.

c. If a portion of the claim can be paid, the CE should pay the period that can be paid while simultaneously developing the period that cannot be paid. The CE should not delay in making a payment for any period that can be paid while awaiting information to substantiate the entire period.

Additionally, if pay rate or other payment information is partially missing, the CE should process a payment based on the evidence of record while simultaneously developing for the deficiencies, as long as such a payment would not be expected to create an overpayment.

For example, if the EA provides base pay information and not night differential (ND) information for a claimant that works evenings, the CE should process the payment using the base pay rate while simultaneously requesting ND information from the EA. Alternatively, if a child between the age of 18 and 23 is the sole claimed dependent but student status is not yet established, the CE should process payment at the lower 66 2/3 compensation rate while simultaneously developing to determine if the claimant is entitled to augmented compensation.

d. Follow up actions. Every reasonable effort should be made to expedite the receipt of the evidence needed in order to process claims and issue payments promptly.

If after the 30 days has passed, the evidence of file:

(1) Substantiates the claimed period – the CE should proceed with calculating and initiating the payment.

(2) Does not support payment of the claim - the CE should issue a formal denial outlining the deficiencies and provide the claimant with appeal rights. For more information on formal denials, see FECA PM 2-1400.

(3) Substantiates a portion of the period claimed - the CE should proceed with payment of that period and issue a formal denial for the period not supported. Note that a claim for medical appointments may be paid if supported by the evidence of record, even if a period of disability is denied.

A formal denial should only be issued when the deficiency is the result of the claimant's failure to establish the claim. A formal denial should not be issued when the deficiency is the sole result of the EA's failure to provide necessary information in response to a request from the OWCP.

e. Disability Management. If a claim for wage loss is paid and the claimant has not returned to work in a full-duty capacity, Disability Management actions should commence. See FECA PM 2-0600.

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6. Factors in Calculating Compensation. Several factors are involved in the calculation of a payment as established by the FECA. The CE must ensure the case file contains information regarding these elements prior to issuing a compensation payment. These factors include:

a. The pay rate on which to base compensation. See FECA PM 2-0900.

b. The period of entitlement. See paragraph 7.

c. Whether payment will be made on the basis of work days or calendar days. See paragraph 8.

d. Whether the three-day waiting period is applicable and the dates covered. See paragraph 11.

e. The compensation rate (percentage of pay), including minimum and maximum payments. See paragraphs 12-14.

f. Whether the claimant is enrolled in a health benefits insurance (HBI) and/or life insurance (LI) plan and, if so, the period for which premiums should be deducted. See paragraph 15.

g. The payee, if not the claimant, and whether additional miscellaneous deductions are necessary for child support, overpayments, etc., and, if so, the applicable amount payable. See paragraph 17.

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7. Period of Entitlement. The length of time for which compensation may be paid can be a period of time in the past, or it can extend indefinitely into the future. The CE is responsible for specifying the dates of payment, as follows:

a. Periodic Roll – When the medical evidence indicates that disability is expected to continue for more than 60-90 days, compensation should usually be paid on the periodic roll (PR). When a claimant is placed on the PR, an initial payment is made for any period due in the past, and then the claimant receives ongoing payments every 28 days according to the compensation schedule. Compensation continues until action is taken by the CE to terminate such payments.

b. Daily Roll - When the initial anticipated period of disability is unclear, or disability is expected to continue for fewer than 60-90 days, compensation should usually be paid on the daily roll. Any payments processed on the daily roll are released once per week. These are one-time payments.

(1) The CE will provide a beginning date and an ending date for the period.

(2) The CE must also decide whether to pay the claim based on work days or calendar days. See paragraph 8.

c. Intermittent hours – Payment should be made on the daily roll for intermittent hours lost when a claim is made for intermittent hours only, i.e. partial days or partial hours lost during a period. Payment for straight total disability should not be made on hours lost. See Paragraph 9.

(1) The total number of hours missed should be calculated, and portions of an hour should be keyed as a decimal. For example, when entering a payment for 4¼ hours, it should be keyed as 4.25 hours.

(2) If a claimant with an intermittent or irregular work schedule submits a claim for intermittent hours lost, the CE should compute entitlement for that period using the Shadrick formula. For example, an RCA whose pay rate is based upon year-prior earnings works a varied schedule from week to week, or a firefighter who often works greater than 40 hours per week. Payment for intermittent hours lost cannot be made on a weekly schedule of more than 40 hours.

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8. Work Days/Calendar Days. A "work week" includes only the regularly scheduled work days, while a "calendar week" includes all seven days, including off-duty days.

The employee's regular schedule can be determined from Form CA-7, Section 9; Form CA-2a, items 28 and 29; or narrative evidence. The schedule can also be obtained from the Form CA-1 or Form CA-2, but the CE should take care to use the most contemporaneous evidence of file, since schedules may change over time. Any discrepancies should be resolved by the CE, usually by contacting the EA, and the case record must be documented with this evidence.

a. Work Days. If compensation is paid in a disability case, and the claimant has a regular work schedule, the claimant should be paid for each actual work day lost. A "regular work schedule" is one in which the claimant works the same fixed days each week. If the claimant's normal work week is five days, the OWCP pays one-fifth of the weekly compensation for each lost work day. This is the "work day" basis of payment.

Computation is as follows: Weekly pay rate x compensation rate = amount (rounded to the nearest $.01) x no. work days lost ÷ no. work days in work week.

b. Calendar Days. If the employee has an irregular work schedule, or if the claimant is placed on the PR for temporary total disability, payment is made on a "calendar day" basis. An "irregular work schedule" is one in which the claimant works different days each week, has a rotating day off, or is otherwise variable. The claimant receives pay for every day of the week during the period of disability, at the rate of one-seventh of the weekly compensation rate for each day.

Computation is as follows: Weekly pay rate x compensation rate = amount (rounded to the nearest $.01) x no. days of entitlement ÷ 7 days per week.

c. The CE must specifically choose either work days or calendar days as the method of calculation when initiating the payment. When choosing the work days method of payment, the CE must be sure to accurately enter the claimant's schedule (days per week and hours per day) when initiating the payment.

d. Flexible Work Schedules. Some employees work their usual number of hours per week or per pay period on a flexible work schedule (flextime). This arrangement may be informal, allowing the employee to work less or more than eight hours each day, within certain limitations, as long as a biweekly total of 80 hours (for a full-time employee) is met.

When entering a work schedule, the CE should use the number of days/hours which would correspond with the usual number of hours worked per week, with the number of hours worked per week evenly distributed throughout the week. For instance, an employee who works 40 hours per week (even with a flextime option) is considered to have a work week of five days, eight hours per day. That schedule can be entered and payment can be made based on work days.

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9. Basic Calculations. Compensation is calculated using different methods depending on the claimant's work schedule and time lost from work. Compensation for disability is usually calculated on a weekly basis, though payments are sometimes made on a daily basis. Compensation in death cases is computed on a monthly basis. See FECA PM 2-0700 for more detail on calculating benefits in death cases.

a. Daily Basis. Using the daily pay rate, compensation is paid for the regularly scheduled work days on which the employee was disabled due to the injury. The CE determines the employee's basic work week and regular days off as outlined in FECA PM 2-0900 to pay compensation on this basis. FECA PM 2-0900 addresses when it is appropriate to use the daily basis to pay compensation.

b. Weekly Basis. Most temporary total disability cases, and all cases where the injury causes permanent total or partial disability and temporary partial disability, are paid on a weekly basis. Compensation for a full work week is calculated according to either work days or calendar days, as discussed in paragraph 8 of this chapter.

c. Compensation for less than a full work week is paid for the regularly scheduled work days on which the employee was disabled due to the injury, rather than the calendar week. (See Cecil W. Wood, 22 ECAB 257 (1971).) The CE will need to determine the claimant's regularly scheduled work week prior to initiating a payment. Compensation should be paid only for the regularly scheduled work days that the claimant missed.

For any period less than a full work week, or for any individual whose work days do not comprise a full work week, the formula for calculating compensation is:

Weekly pay rate x compensation rate = amount (rounded to the nearest $.01) x no. work days lost ÷ no. work days in work week.

d. Compensation payable for less than a full work day is calculated as follows:

Weekly pay rate x compensation rate = amount (rounded to the nearest $.01) x no. hours lost ÷ no. hours in work week

For example, compensation for three hours of pay loss, with a weekly pay rate of $400.00 for 40 hours of work, at the basic rate of compensation, is calculated as follows:

$400.00/week X 2/3 = $266.67; $266.67 x 3 hours lost ÷ 40 hours/week = $20.00.

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10. Special Determinations. This paragraph describes the rules for calculating compensation to certain groups of employees.

a. Decennial Census Workers. Pay rates for these employees are addressed in FECA PM 2-0900-12.

(1) Temporary Workers.

(a) Where disability does not exceed 90 calendar days, compensation can be paid on a daily basis according to 5 U.S.C. 8114(c).

(b) For the 2000 Census, enumerators and crew leaders ordinarily worked 6.5 hours per day, six days per week.

(c) For the 2010 Census, enumerators and crew leaders ordinarily worked an average of 4.5 hours per day, four days per week.

(d) Where disability extends beyond 90 days, and the claimant had similar employment during the year prior to the injury, compensation should be paid according to section 5 U.S.C. 8114(d)(1) and (2).

If there was no provision to pay under §8114(d)(1) and (2), or disability extended beyond 90 days, compensation for wage loss should be paid on a weekly basis using the following formula: 150 x the actual daily wage divided by 52 (the actual daily wage should be determined by multiplying the hourly pay rate by the number of hours scheduled per day).

(2) Compensation should be determined using 5 U.S.C. 8114(d)(1) and (2) for clerks, lead clerks, data entry clerks, and lead data entry clerks who are disabled longer than 90 days and who have had similar employment which demonstrated that they worked full time during the previous year.

(3) Regular full-time Census employees eligible for HBI, LI, and retirement should have pay calculated according to the provisions of 5 U.S.C. 8114 (d)(1) or (2).

b. Firefighters.

(1) Regular Firefighters. These employees normally work three 24-hour shifts per week. Compensation entitlement should be calculated using the number of hours lost divided by 24 hours to arrive at the number of "work days" lost. The result of this calculation should be divided by three, which represents the number of work weeks lost. The result should be multiplied by 3/4 or 2/3 of the pay rate to arrive at the amount of compensation to be paid.

This formula is:

Hours lost ÷ 24 hours = Work days lost

Work days lost ÷ 3 (shifts per week) = Work weeks lost

Weekly pay rate X compensation rate = amount (rounded to the nearest $.01) x work weeks lost = compensation due

(2) Emergency Firefighters. The work day and work week for firefighters recruited on an emergency basis by the Forest Service, National Park Service, and Bureau of Land Management (other than those who are "career seasonal" as outlined in FECA PM 2-0900) may exceed eight hours per day and five days per week.

On an actual daily basis, the daily pay rate is the number of hours actually worked times the hourly pay rate reported, and compensation will be computed on the work week reported. In other cases, the minimum weekly pay rate is determined by the following formula:

Hourly wage X no. of hours per day X 150 days ÷ 52 weeks per year

Where more than eight hours are worked per day, actual hours worked shall be used in the calculation.

If the EA reports an additional allowance for subsistence or quarters, or if premium pay is received because of standby status, the amount(s) should be included in the pay rate.

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11. Waiting Days. Under §8117 of the FECA, waiting days are the first three days of injury-related disability. Waiting days are counted differently for employees of the US Postal Service (USPS) and employees of other agencies. See 20 C.F.R. §10.401(a).

a. Non-Postal Employees.

(1) Section 8117(a) of the FECA provides that an employee is not entitled to compensation for the first 3 days of temporary disability, except:

(a) when the disability exceeds 14 days;

(b) when the disability is followed by permanent disability; or

(c) when seeking medical treatment, supplies or related medical services.

(2) Determining Waiting Days in non-Postal cases.

(a) This provision applies regardless of whether the three days are regularly scheduled non-work days (e.g., Saturday and Sunday) or holidays.

(b) Non-work days occurring prior to or during any period of COP or leave use should not be considered as waiting days.

(c) Non-work days and holidays that fall within a period of disability from work count toward the 14-day total.

(d) Disability days do not need to be consecutive to count toward the 3 waiting days or 14-day minimum.

(e) Waiting days should not be applied where time lost was solely due to the employee's absence for medical treatment, as time lost for medical appointments is not considered disability.

(f) If a claim, or portion of a claim, is not payable because of the three waiting days, the claimant should be notified of this provision and reason for non-payment.

(g) If the claimant later sustains 14 days of disability, the three waiting days are restored and should be paid at that time.

b. Postal Employees. The Postal Accountability and Enhancement Act of 2006 (Title IX) altered the three-day waiting period for USPS employees. It provides that for USPS claimants, the three-day waiting period applies at the beginning of the disability period, regardless of the type of injury sustained.

The claimant will not receive COP until the fourth day of disability. If disability extends beyond fourteen days, the Postal Service will offer the claimant the choice to change the three waiting days to COP. If the claimant is not entitled to COP, or the three-day waiting period was not met during the COP eligibility period, the three-day waiting period will be applied by the OWCP upon receipt of a claim for wage loss due to disability. Just as with non-Postal employees, waiting days should not be applied where time lost was solely due to the employee's absence for medical treatment, as time lost for medical appointments is not considered disability.

(1) In traumatic injury cases, the waiting period applies to the beginning of the COP period. The claimant must elect annual leave (AL), sick leave (SL), or Leave Without Pay (LWOP).

(2) In occupational disease cases, the choice at the beginning of disability will remain as AL, SL, or LWOP.

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12. Compensation Rate. The compensation rate is the percentage of pay to which a claimant is entitled for periods of disability and medical treatment. There are two compensation rates when calculating claims for time loss. The basic compensation rate is 66 2/3 percent of the claimant's wages. The augmented rate is 75 percent of the claimant's wages and is based on whether the claimant has one or more eligible dependents as defined in section 8110 of the FECA. See 20 C.F.R. §10.401(b).

a. No Dependents. Section 8105 of the FECA establishes the basic compensation rate of 66 2/3 percent for payment of compensation. The claimant is entitled to the basic rate if he/she does not have an eligible dependent as defined in 5 U.S.C. 8110.

b. Spouse. If the claimant is legally married, including to a spouse of the same sex, he or she is eligible for augmented compensation (at the 75% rate) as long as one of the three criteria outlined in §8110 of the FECA is met:

(1) He/She is a member of the same household as the claimant, or

(2) He/She is receiving regular contributions from the employee for his/her support, or

(3) The claimant has been ordered by a court to contribute to his/her support.

NOTE: On June 26, 2013, in United States v. Windsor, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional; that section limited the definition of spouse to a person of the opposite sex and prohibited the federal government from recognizing, and providing benefits on the basis of, lawful same-sex marriages. Where a claimant previously precluded from seeking benefits based on Section 3 of DOMA establishes a same sex marriage, augmented compensation (if not previously granted due to the existence of another eligible dependent such as a child) will be granted retroactively back to the date of the valid same sex marriage or the triggering event for payment, whichever is later. See FECA Bulletin No. 14-01.

Domestic partnerships (whether same-sex or opposite-sex), are still not eligible for augmented compensation under FECA. Augmented compensation also continues to be unavailable to all ex-spouses, whether same-sex or opposite-sex even if support payments are being made. See Raymond Kaufman, Docket No. 04-104 (issued March 2, 2004) (ECAB held that as appellant was no longer married, his former spouse did not qualify as a "dependent," and his support payments to her did not entitle him to augmented compensation).

An indication on a claim form, such as a Form CA-1 (Notice of Injury and Claim for Compensation) or Form CA-7 (Claim for Compensation), is usually sufficient to verify marital status, since both forms require certification of the information provided via the claimant's signature and have warnings pertaining to false statements. If evidence to the contrary is present, however, the CE should develop the issue further and may request documentary evidence such as a marriage certificate. If necessary, the employing agency may assist in verifying marital status in the initial stages of the claim.

c. Children. Section 8110 of the FECA provides that a claimant is entitled to the 75% augmented compensation rate for one or more child (see 20 C.F.R. §10.405) who is:

(1) Not married; and

(2) Living with the employee or receiving regular contributions from the employee toward his/her support, as long as the child is under 18 years of age or over 18 years of age but incapable of self-support due to a physical or mental disability.

The claimant's eligibility for augmented compensation for a dependent child terminates on the date of the child's marriage.

Where only one dependent is claimed and that person is a child over the age of 18, the CE must ensure that entitlement exists. See sections d and e, below.

d. Student Status. Augmented compensation being paid based on the claimant's unmarried child, which would otherwise be terminated when the child turns 18, may continue if the child is a student pursuing a full-time (as verified by the institution) 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 child reaches age 23, whichever comes first.

(1) A "year of education beyond the high school level" is defined at 20 C.F.R. §10.5(aa)(2) to include:

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

(b) The 12-month period beginning the month the child actually enters school, if the child had originally indicated that he or she would not continue schooling within four months of graduating high school, and each successive 12-month period, provided that attendance continues.

(2) Each year during all or part of which compensation is paid based on school attendance constitutes a year of entitlement to student status. If a child should decide for any reason not to attend school for part of a year during which augmented compensation was paid on account of student status, the claimant would be charged with having used an entire year of eligibility out of the allotted four years, even though compensation terminates when the child leaves school. If a child has already completed one or more years of college before turning 18 years old, those years would be deducted from the four years of entitlement.

(3) Augmented compensation may continue during any interval between school terms which does not exceed four months if the child 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, augmented 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 student and decide what may be considered a period of reasonable duration during which augmented compensation may continue. The CE should document the file outlining the circumstances of the case and the reasons for the decision.

(5) An institution for study or training consists of:

(a) A school, college or university operated or directly supported by the United States, a state or local government, or political subdivision thereof;

(b) A school, college or university accredited by a state or by a state or nationally-recognized accrediting agency or body;

(c) An unaccredited school, college or university whose credits are accepted, on transfer, by at least three accredited institutions on the same basis as if transferred from another accredited institution; or

(d) A technical, trade, vocational, business or professional school accredited or licensed by the United States Government, a state government, or other related government entity that provides courses at least three months long, and prepares an individual for work in a trade, industry, vocation or profession. See 20 C.F.R. §10.5(aa)(1).

(6) The CE should request proof of student status shortly before a child reaches the age of 18 if augmented compensation is being paid solely on the basis of a dependent whose dependency status rests on the "student" requirement. The CE should request verification of the student status as long as compensation is being paid at the augmented rate based on this "student" criteria. A request should be released for completion on a yearly basis; the claimant is required to report any changes to student status in the interim.

See PM 2-0812 for further information on the requirements for monitoring dependent status.

(7) If the child is still a student upon turning 23 years old, augmented compensation should terminate at the end of that semester or enrollment period.

e. Children Over 18 Incapable of Self-Support. When augmented compensation is claimed based on a child who is over 18 years old but physically or mentally incapable of self-support, the CE must investigate the extent and expected duration of the illness involved.

(1) To be entitled to benefits, the child over 18 years old must be incapable of self-support by reason of a mental or physical disability. Augmented compensation is not payable for a child over 18 years old who is unable to obtain employment due to economic conditions, lack of job skills, etc.

(2) A child is incapable of self-support if his or her physical or mental condition renders him or her unable to obtain and/or 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 sustained work performance.

A medical report covering the child's past and present condition must be submitted for review to determine whether it establishes incapacity for self-support. A physician's opinion must be based on sufficient findings and rationale to establish lack of employability. If the CE needs assistance with review of the medical condition or report, the case may be referred to the District Medical Advisor (DMA).

(3) A request should be released on a yearly basis asking the claimant to submit a medical report verifying that the dependent's medical condition persists, and that it continues to preclude self-support. As outlined in PM 2-0812, such a request should be sent each year for the duration of entitlement to augmented compensation on the basis of a dependent over the age of 18 being incapable of self-support.

As outlined in 20 C.F.R. §10.417(d), if the status of such a dependent is unlikely to change, the claimant may establish the permanency of the condition by submitting a well-rationalized medical report which describes that condition and the ongoing prognosis of that condition. Once the permanency of the condition is established, the CE does not need to seek further information regarding that condition; however, if there is a change in that condition, the claimant is required to immediately report that change to the OWCP. If the permanency of such a condition is established, the CE should prepare a memorandum to the file for concurrence by the Supervisory Claims Examiner.

f. Wholly-Dependent Parent. When augmented compensation is claimed based on a parent, the CE must investigate whether and determine that the parent is wholly dependent upon and supported by the claimant.

(1) Proof of parentage is established by a birth certificate for the employee or, in the case of adoption, copies of the legal documents. In the case of a step-parent, the file must contain proof of the step-parent's marriage to the natural or adoptive parent of the claimant, along with the birth certificate indicated above.

(2) Parents in receipt of other monetary benefits, such as Social Security or a retirement pension, are not considered wholly dependent on the claimant. Augmented compensation cannot be granted in these circumstances.

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13. Minimum Compensation (MIN). The minimum rate of compensation for disability, death or medical treatment is 75 percent of the lowest pay for a GS-02 Federal employee. See 20 C.F.R. §10.406. This figure changes with the Federal pay scale.

The MIN is compared to the compensation rate in a disability case, and to the pay rate in a death case. Exhibit 1 provides a detailed listing of yearly MIN rates.

a. Statutory Provisions. The MIN was established by the 1966 amendments to the FECA. Section 8112 of the FECA states that in cases of total disability and death, except in cases of non-citizen employees, the monthly rate of compensation for disability, including augmented compensation for eligible dependents, but not including additional compensation for attendant allowance, may not be less than the lesser of:

(1) 75 percent of the monthly pay of the minimum rate of basic pay for GS-2, or

(2) The amount of the monthly pay of the employee.

b. In a disability case, the MIN in effect during the period of entitlement is compared to the claimant's weekly compensation.

(1) If the weekly pay is more than the MIN, but the weekly pay multiplied by the applicable compensation rate (66 2/3 or 75 percent) would be less than the MIN, the claimant receives the MIN instead of the calculated compensation.

(2) If the weekly pay is less than the MIN, the claimant receives 100 percent of the pay rate, instead of the 66 2/3% (basic) or 75% (augmented) rate.

c. In disability (and death) cases, the "100 Percent Rule" applies, which caps the compensation rate at 100 percent of the pay rate.

d. The MIN is always compared to the amount of compensation, including Consumer Price Index adjustments (CPIs). Because CPIs are applied to compensation, compensation for disability usually exceeds the MIN after the first year.

e. The MIN does not include locality pay adjustments. 20 C.F.R. §10.406.

f. The MIN does not apply to Job Corps or foreign national claims. When making payments for these cases, the CE should enter an activity code in the case management system to prevent overpayments. See Exhibit 4.

g. The MIN does not apply to schedule awards.

h. The compensation management application automatically calculates the MIN rate when payments are entered and makes the appropriate comparisons.

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14. Maximum Compensation (MAX). The maximum rate of compensation for disability, death or medical treatment, is 75 percent of the monthly salary of a GS-15, step 10. This figure changes with the Federal pay scale. Exhibit 2 provides a detailed listing of yearly MAX rates.

a. Statutory Provisions. The MAX was established by the 1966 amendments to the FECA. Section 8112 of the FECA states that, except in cases of non-citizen employees, the monthly rate of compensation for disability, including augmented compensation for eligible dependents, but not including additional compensation for attendant allowance, may not be more than 75 percent of the monthly pay of the maximum rate of basic pay for GS-15.

Section 8112 provides only one exception to this rule in that any employee whose disability is a result of an assault which occurs during an assassination or attempted assassination of a Federal official described under section 351(a) or 1751(a) of title 18, shall not be subject to the MAX.

b. Allowable Compensation Rate. In a disability case, the MAX in effect during the period of entitlement is compared to the claimant's weekly compensation, while in a death case the monthly compensation is used to determine MAX.

(1) If a claimant's weekly compensation rate is greater than the MAX, compensation is limited to the maximum amount.

(2) When a new MAX is established, it is compared to the amount of compensation in each case at MAX. If the compensation is greater than the old MAX but less than the new, compensation may be paid at the regular rate. Adjustments are made retroactive to the effective date of the new MAX, which is generally the date of an increase in the Federal pay scale.

(3) Consumer Price Index (CPI) increases do not affect the allowable MAX, though a claimant may be subject to MAX after the application of CPIs.

c. The MAX does not include locality pay. 20 C.F.R. §10.406.

d. Schedule awards are limited to the MAX.

e. The compensation management application automatically calculates the MAX rate when payments are entered and makes the appropriate comparisons.

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15. Insurance Deductions. If the claimant was enrolled in a Federal Employees Health Benefit Plan (FEHBP) and/or Life Insurance plan at the time he or she became eligible to receive compensation for wage loss, deductions for health benefits insurance (HBI) and/or life insurance (LI) premiums will be taken from the compensation entitlement.

a. Determining Effective Date for Deductions. Generally, the EA will make deductions through the last date in which the claimant received pay. In this case, OWCP deductions for HBI and LI become effective the next calendar day. If another date for the last deductions is clearly present (e.g. the end of the pay period), the CE should use that date and begin deductions the day after.

Unless specified on the Form CA-7 (or in some other documentation in the file), the CE can assume that premium deductions were made only through the last day that the employee received pay, and accordingly begin deductions the following day.

If there is any discrepancy in the file with regard to the date of the last deduction, the CE should contact the EA to determine the date of last deductions and document the date for the case record.

(1) If disability is not supported when pay has stopped, deductions would begin on the first day compensation is payable.

(2) HBI and LI deductions are not made for intermittent hours or days within a pay period.

b. Health Benefits Enrollment. Claimants who are disabled for more than 60-90 days should be placed on the periodic roll, and their health benefits enrollment should be transferred in to the district office in a timely manner (unless the evidence indicates a return to work in the near future). See FECA PM 5-0400 for a more detailed discussion regarding the deductions for HBI.

(1) The OWCP should confer with the EA and Office of Personnel Management (OPM) to reconcile any outstanding issues concerning claimants' continued entitlement. Properly maintaining the enrollment and making the correct deductions is part of this process and the responsibility of the OWCP.

(2) It is critical that a claimant's health benefits enrollment be promptly and properly transferred in, or the EA may subsequently terminate the claimant's enrollment in the health benefits plan, causing unnecessary complications for the claimant.

(3) When the health benefits transfer-in process is complete, the date should be entered in the case management system. Form CA-73 (or equivalent) can be used to initiate the transfer-in process.

c. Life Insurance. Unlike HBI, there is no enrollment to transfer-in for LI. Claimants enroll in LI through their EA, and any inquiry concerning LI coverage should be referred to the claimant's employer or to the OPM. There are several types of LI deductions. See FECA PM 5-0401 for details regarding LI deductions.

(1) Basic Life Insurance (BLI). Federal employees are automatically enrolled in BLI on the date employment begins, unless coverage is waived by the employee. Deductions for BLI, though, are not automatic. Deductions should only be made if the OWCP receives verification that the claimant has the coverage. BLI stops at age 65.

There is no charge for BLI in cases with a date of injury (DOI) prior to 01/01/1990.

(2) Optional Life Insurance (OLI). In order to be eligible for OLI, the claimant must also be enrolled in BLI, unless the claimant's DOI is prior to January 1, 1990, then this coverage is free, so no additional deductions are needed. Premiums are withheld until the claimant reaches age 65. Deductions from compensation payments cease during the first full PR payment after the claimant's 65th birthday (unless he or she opts to freeze Option B and C). This change happens automatically.

(3) Post Retirement Basic Life Insurance (PRBLI). PRBLI prevents a life insurance benefit reduction at age 65. The default reduction is a reduction of 75%, but the claimant can elect either "No Reduction" or "50% Reduction." Claimants must elect this coverage when separated or retired from Federal employment. The coverage is effective immediately, and the premiums continue until death. Prior to age 65, the claimant must pay for both BLI and PRBLI if it has been elected.

CEs are notified of the claimant's election of PRBLI via Form RI 76-13 from the OPM. Upon notification, the next PR payment should be adjusted to indicate PRBLI. The "75% reduction" option is free. The "50% Reduction" and "No Reduction" options are calculated automatically in the case management system when issuing a payment.

(4) Option B and C Freeze. At age 65, the claimant can elect to continue Option B and Option C LI. This is a "Post 65 Reduction Election," and it is open to all claimants who currently have Option B or C LI coverage. A notification letter is sent to the claimant, and, if elected, he or she must send the response to the OPM. The OPM then notifies the National Office of the election. If the claimant makes this choice, the CE will be notified by letter from the OPM regarding the deductions for any Option B or Option C Freeze.

Upon notification, the CE should adjust the PR payment to include the deduction and calculate any adjustment, making sure to convert any monthly amount from the OPM into a 28-day amount for the PR cycle.

d. Dental and Vision Insurance. Dental and vision insurance are options for FECA recipients, but unlike HBI and LI deductions, these deductions must be added to the existing PR payment by the National Office. If the PR payment is deleted and later re-entered for some reason, the dental and/or vision insurance deductions will have to be entered again by the National Office. For any periods that the claimant is on the daily roll or has missed PR deductions, FedVIP will either directly bill the claimant or adjust the withholding made in the compensation management system.

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16. Consumer Price Index Adjustments. The 1966 Amendments to the FECA provide for increases in compensation benefits based upon the Consumer Price Index (CPI). CPI adjustments are automatically included in compensation payments processed in the compensation management system. (See Exhibit 3 for a list of CPI increases.)

a. Entitlement. Under 5 U.S.C. 8146a, CPI increases are granted where the disability (i.e., compensable disability or the date when an injured employee stopped work on account of the injury) occurred more than one year, i.e. at least a year and a day, before the effective date of the CPI increase. See 20 C.F.R. §10.420.

(1) The disability need not have been continuous for the whole year before the increase. The use of a higher (recurrent) pay rate precludes addition of a CPI increase within one year following the application of such a pay rate.

(2) The 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.

(3) CPI adjustments are rounded in disability cases to the nearest dollar on a 28-day basis, and in death cases to the nearest dollar on a monthly basis.

(4) When the compensation rate changes (e.g., from 3/4 to 2/3), the CPI adjustments are automatically recalculated.

(5) Where a schedule award is being paid and the claimant had no disability for work prior to the date of maximum medical improvement, the one-year waiting period begins on the starting date of the award. This date represents the claimant's first entitlement to compensation, even though the effective date of the pay rate (DOI) is earlier.

(6) If a lump-sum schedule award is paid per 5 U.S.C. 8135, there is no provision for inclusion of possible future CPIs at the time the award is calculated and paid, as CPI determinations are made on a yearly basis, and there is no provision in the FECA that allows an estimate of future cost of living increases.

b. Inclusions and Exclusions.

(1) Entitlement to CPI increases extends to: emergency relief workers (CCC, WPA, CWA, FH and ERA); Reserve Officers Training Corps cadets; Civil Air Patrol volunteers; maritime workers; civilian war benefits workers; Peace Corps volunteers and volunteer leaders; VISTA volunteers; Neighborhood Youth Corps enrollees; and Job Corps enrollees.

(2) Entitlement to CPI increases does not include military reservists or their survivors and members of the Women's Army Auxiliary Corps (WAAC) and the Coast Guard Auxiliary.

(3) Periodic increases under the Longshore and Harbor Workers' Act are applied to Enemy Action (EA) and War Hazard (WH) cases on October 1.

c. Calculation of the CPI. CPIs are granted based on the "Consumer Price Index for Urban Wage Earners and Clerical Workers" (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent, determining the amount of the CPI increase granted to claimants. 5 U.S.C. 8146(a) establishes the base month for the FECA CPI as December. The first cost-of-living increase using this standard was effective March 1, 1981.

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17. Other Payees. Parties other than the claimant may receive payments from the OWCP due to various circumstances.

a. Employing Agency. When leave buy back is authorized, the agency may be designated to receive the compensation due. The agency then becomes a case payee. See paragraph 18 of this chapter for more information on the leave buy back process.

b. Office of Personnel Management. If funds are offset to repay the OPM for a period of dual benefits (see FECA PM 2-1000), the OPM becomes a case payee, though a payment is not keyed directly to the OPM. Instead, repayment should be made by selecting "OPM/CSRF" in the Miscellaneous Deductions tab of the Compensation application.

c. State/Municipal Court or Agency or Income Withholding Order. In cases where the claimant is failing to comply with, or is in arrears for, alimony and/or child support payments, the OWCP may allow for garnishment of compensation benefits. Such garnishment may be requested by providing a copy of the state agency or court order to the district office that has jurisdiction over the injured worker's claim. The OWCP has also entered into a Memorandum of Understanding with the U.S. Department of Health and Human Services' Office of Child Support Enforcement in order to identify parents who owe child support. In such cases, state agencies may issue Income Withholding Orders for back child support. There are maximum deductions that apply to these deductions. If the order is clear, the district office may begin such deductions. Otherwise, such orders should be referred to the Office of the Solicitor for review before garnishing compensation benefits. There is no requirement that a claimant be in receipt of augmented compensation benefits before the OWCP can withhold payments to comply with a valid child support enforcement order. References: 20 C.F.R. §10.423; 42 U.S.C. 659; 5 C.F.R. §§581.203 and 581.402.

When entering a child support deduction, the CE should use the Child Support Enforcement (CSE) Organization as a payee and enter the "Remittance Number" and the "Order Received Date" from the Child Support order. The Remittance Number is the case file number provided by the state child support agency. Once the CSE has been certified as a payee, the CE then enters the amount of the child support obligation as a "Fixed Allocation."

d. Secondary Beneficiaries. In a death case, a student or other adult beneficiary may receive payments in his or her own name. See FECA PM 2-0700.

e. Representative Payee. When the OWCP determines that a claimant is incapable of managing his or her benefits because of a mental or physical disability, legal incompetence, or because he or she is under 18 years of age, the OWCP in its sole discretion may approve a person to serve as the representative payee for funds due the claimant. Where a guardian or other party has been appointed by a court or administrative body authorized to do so, to manage the financial affairs of the claimant, the OWCP will recognize that individual as the representative payee, pursuant to 20 C.F.R. §10.424. The representative payee is not equivalent to an authorized representative who may be designated by a claimant to represent him/her before proceedings before the OWCP, pursuant to 5 U.S.C. 8127.

(1) Where the claimant is 18 years old or older, is incapable of self support, and no guardian has been appointed, the OWCP shall approve the person or institution in the following order of preference:

(a) An individual or institution having legal custody of the claimant;

(b) A spouse, other relative, or friend, in that order, who demonstrates strong concern for the personal welfare of the claimant;

(c) Someone qualified and willing to serve as a payee for a claimant.

(2) Where the claimant is under age 18 and there is no parent or legal guardian, the following order of preference should be followed:

(a) An individual who has custody of the claimant;

(b) A social agency or custodial institution chartered, authorized or licensed by a government entity;

(c) An individual who is contributing toward the claimant's support;

(d) An individual demonstrating concern for the claimant's well-being.

(3) Power of attorney is a legal process where one individual grants a third party the authority to transact certain business for that individual. Even if an adult beneficiary has granted an individual a "power of attorney" that includes the authority to handle the funds of the beneficiary, the CE is still responsible for making an individualized determination as to whether the person holding the power of attorney should be designated as a representative payee under the FECA. As the laws regarding what should be included in a power of attorney are not uniform across the states, any questions regarding the legal sufficiency of a power of attorney document should be referred to the FEEWC Division of the Solicitor's Office.

(4) Upon consideration of approval of a representative payee, the CE will advise the payee that the payee has the responsibility to spend or invest payments received only for the benefit of the claimant, in the order outlined in (5) below; that the payee must notify the OWCP of any event that would affect the amount of benefits, such as status of dependents; that the payee must advise the OWCP of any change in the payee's circumstances that would affect performance of the payee's responsibilities; and that the payee must maintain on an annual basis and submit to the OWCP, upon request, a written report accounting for the benefits received. With the exception of parents of minor children, to protect the beneficiary's funds, a checking or savings accounts title should reflect the beneficiary's ownership of the funds and the representative payee's relationship as a fiduciary (financial agent).

The representative payee should also be advised of his or her responsibility to notify the OWCP if the beneficiary moves; if the beneficiary starts receiving another government benefit or the amount of the benefit changes; if the beneficiary is imprisoned for a felony conviction; or if the beneficiary dies. The representative payee must complete the Form CA-1032 on behalf of the beneficiary. The representative payee must inform the OWCP in writing of any change in residence of the representative payee. The representative payee must inform the OWCP in writing in the event he or she no longer wishes to serve as a representative payee, or in the event he or she becomes incapable of being responsible for the beneficiary.

(5) The CE should ask the payee to submit a statement accounting for the benefits if there is any question about the manner in which the payee is using the benefits. For example, questions may arise when the representative payee does not advise the OWCP of changes as outlined above; when the OWCP is contacted by the claimant's creditors; or when the institution where a claimant resides reports problems with billing. The CE should examine the statement to ensure that the benefits are used in the following order:

(a) The claimant's maintenance, including food, shelter, clothing, medical care, and personal comfort items;

(b) Institutional care, including expenses that will aid in recovery or release, and for personal needs;

(c) Support of claimant's legal dependents;

(d) Claims from creditors - only if the claimant's needs are met for the present and the foreseeable future;

(e) Funds not needed for (4)(a) through (4)(d) above, conserved or invested on behalf of the claimant in non-speculative accounts, in accordance with rules followed by trustees. Any profit from an investment is the property of the claimant and not the payee.

(6) The services of the payee may be terminated when the payee has not used the funds according to (5)(a) through (5)(e) above, or has not timely discharged other responsibilities. Issues concerning misuse or questionable use of funds by a representative payee should be referred to the National Office. By an administrative determination from the Office, a representative payee may be held responsible for repaying an overpayment.

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18. Leave Buy Back (LBB). When an employee elects to use accrued or advanced annual leave (AL) or sick leave (SL) during a period of disability, he or she may later, with the concurrence of the EA, claim compensation for the period of disability and "buy back" the AL or SL used (20 C.F.R. §10.425) and have it restored. Leave donated to an employee by an EA leave bank is not restorable leave.

Where a claim for LBB is approved, the OWCP will issue payment to the employer covering the period of approved time loss. Upon receipt of the payment from the OWCP, the employer is responsible for reinstating the claimant's leave once the employee pays his/her portion, if any.

a. Participation in this process is at the discretion of the employer. The OWCP does not govern whether a claimant may repurchase leave from an EA, and any decision by the EA to disallow a LBB is not a formal decision over which the ECAB may exercise jurisdiction. (See K.J., Docket No. 11-571 (issued January 25, 2012); Aberline Smith, Docket No 96-1699 (issued June 4, 1988).

b. LBB Forms. The CE should review the submitted forms carefully to be sure they are complete. If one or more of the necessary forms are not received or are incomplete, the CE should send a written request to the EA for the completed form(s). The claimant should receive a copy of this letter as well. Forms used in a LBB claim include:

(1) Form CA-7, Claim for Compensation, showing a claimant has elected LBB is required.

(2) Form CA-7b, Leave Buy Back (LBB) Worksheet/Certification and Election, is required.

(3) Form CA-7a, Time Analysis Form, is optional. If the Form CA-7a is not submitted though, a clear breakdown of leave used is required.

c. Review of Medical Evidence. The CE should review the medical evidence to verify the lost time claimed for disability or medical appointments. In processing claims for LBB, it is still necessary to determine the dates for which the claimant would have been eligible for wage-loss compensation if he or she had gone into LWOP status rather than taking AL or SL. The same basic rules apply for wage-loss compensation as identified in other sections of this chapter.

d. The CE must also calculate the gross amount of compensation due for the compensable time period, and document the calculations in the case record. HBI and OLI deductions are not made when a claimant wants to buy back AL or SL used for a period of disability, since the EA made those deductions while the employee was in leave status.

e. The CE then compares the amount of the calculated compensation entitlement with the EA's estimate of FECA entitlement.

(1) Where the medical evidence supports all hours claimed and the EA's estimate of FECA compensation is within 10% of the amount determined by the OWCP to be payable, the CE should document the calculations in the case record and process the payment. The CE should add the EA as a payee in the case management system and direct the payment to the agency address provided on the Form CA-7b, which may be different than the agency correspondence address. The new payee address will also need to be certified in order for the payment to be processed.

The CE should then complete and send Form CA-1208 (or equivalent) to the claimant and EA, advising that the claim was approved in full with the inclusive dates and amount of the payment made. Since compensation is paid at 2/3 or 3/4 of gross wages, the amount of compensation is usually less than the amount paid to the claimant while on AL or SL. The claimant will have to pay the difference to the EA.

In rare situations, the total FECA entitlement will exceed the amount owed by the claimant to the EA. In these instances, the CE should pay the EA the balance due to repurchase the leave. The CE should then pay the claimant the remaining balance of FECA entitlement.

(2) Where the medical evidence supports all hours claimed, but the EA's estimate of entitlement is not within 10% of the amount determined by the OWCP, the CE will issue Form CA-1207 (or equivalent) showing the correct entitlement amount. If the claimant still wishes to pursue LBB, he or she will then complete his or her portion of the enclosure EN-1207 and provide it to the EA. If the parties reach an agreement on reinstatement of leave, the EA will complete its portion of the EN-1207 and forward the completed form to the OWCP. The CE will then issue a compensation payment to the agency and release Form CA-1208 to the claimant, with a copy to the EA.

(3) Where medical evidence supports some, but not all, of the hours claimed, the CE should develop the claim by advising the claimant of the deficiencies in writing, and allow 30 days for the claimant to provide supporting evidence. The CE should also advise the claimant regarding what hours claimed have been determined to be payable. In this instance, if exigent circumstances do not exist, the CE may delay the payment of the hours that have been determined to be payable so that the comparison of the amount calculated by the agency can be more accurately evaluated, as outlined above, prior to processing a payment

(a) If no medical evidence is received in response to the development letter, or if the evidence is not sufficient to establish entitlement for any part of the remaining hours, the CE should process a payment for the supported hours and issue Form CA-1208 showing the number of hours approved and the corresponding dates. The CE should then issue a formal decision denying the hours not supported by the evidence of record.

(b) If medical evidence is received in response to the development letter, the CE will evaluate the evidence to determine whether it supports the remaining hours of lost time. If so, the CE should issue payment to the employer covering all supported hours. The CE should then issue Form CA-1208 showing the total number of hours approved and the corresponding dates. If any claimed hours are still not supported by the evidence of record, the CE should issue a formal decision denying the hours not supported by the evidence of record.

(4) Where there is no medical evidence to support any of the lost time claimed, the CE must develop the claim by advising the claimant of the deficiency in writing, and allow 30 days for the claimant to provide supporting evidence.

(a) If no medical evidence is received in response to the development letter, or if the evidence is not sufficient to establish entitlement for the lost time, the CE will issue a formal decision denying the LBB claim in its entirety.

(b) If medical evidence is received in response to the development letter, the CE will evaluate it to determine whether it supports any of the time lost. If so, the CE should issue a payment to the EA covering the verified hours. The CE will then issue Form CA-1208 showing the total number of hours approved and the corresponding dates. If only a portion of the claim was substantiated, the CE should issue a formal decision denying the specific hours that are not supported.

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19. Wages Lost for Medical Examination or Treatment.

a. Entitlement. A claimant who has returned to work following an accepted injury or illness may need to undergo examination, testing, or treatment. Such a claimant may be paid compensation for wage loss under 5 U.S.C. 8103 while obtaining the medical services or treatment.

(1) Reimbursement of lost wages for attending medical appointments includes a reasonable time spent traveling to and from the provider's location.

(2) Wage loss is payable only if the examination, testing, or treatment is provided on a day which is a scheduled work day and during a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty hours is not reimbursable.

(3) The evidence should establish that the claimant attended an examination or treatment for the accepted work injury on the date(s) claimed in order for compensation to be payable. If the evidence is not present on initial review, the case should be developed and subsequently reviewed after 30 days for either payment or issuance of a formal denial of any claimed hours still not supported by medical evidence.

b. Absence from work for the purpose of medical evaluation or treatment does not constitute a recurrence of disability. The ECAB has interpreted the word "disability" at 5 U.S.C. 8101(4) to mean incapacity because of injury to earn the wages which the employee was receiving at the time of such injury, or disability for work. An absence to obtain medical services while otherwise capable of working does not reflect an incapacity for work and therefore does not establish "disability" for purposes of changing the pay rate.

Since absence from work for the purpose of medical evaluation does not constitute a recurrence of disability, the claimant is not entitled to a higher pay rate under section 8101(4) of the FECA (Amelia S. Jefferson, 57 ECAB 183 (2005)).

c. For a routine medical appointment, a maximum of four hours of compensation may be allowed. However, longer periods of time may be allowed when required by the nature of the medical procedure and/or the need to travel a substantial distance to obtain the medical care. These claims for wage loss should be considered on a case-by-case basis and any exception should be documented in the file. Some agencies do not allow employees in particular job classifications (e.g. USPS rural carriers) to take less than a full day off from work. Such employees should be compensated for the full shift of lost time from work.

d. When a formal LWEC is in place, the LWEC should not be modified to pay claims for wage loss due to medical appointments. However, in certain circumstances, the compensation previously paid for loss of wage-earning capacity must be deducted from the compensation payable for the time lost due to medical appointments.

(1) Where there is no LWEC, or the LWEC being paid is based on part-time work, and the claimant has lost additional hours to obtain medical treatment, the CE should pay those hours without regard to any prior LWEC compensation paid. However, the CE should ensure that the total number of hours worked and/or compensated for per week does not exceed the number of weekly scheduled hours when injured.

(2) Where the LWEC being paid is based on other wage loss, e.g. lost premium pay, and the claimant has incurred additional wage loss due to attending medical appointments, the previously paid LWEC must be deducted from the compensation payable for the intermittent hours lost.

e. OWCP-Directed Examination. If the OWCP directs a claimant who is working to undergo a second opinion or referee medical examination, reimbursement for wage loss should be paid under the authority of 5 U.S.C. 8123 at 100% of gross wages lost. Therefore, the CE should request the EA to provide the actual amount of gross wages the claimant lost on the date of the examination, and compensate the claimant accordingly. Careful attention is needed in cases in which the claimant is already receiving partial wage-loss compensation (due to loss of premium pay, for example). In such cases, the gross amount of daily compensation previously paid for partial wage loss should be deducted from the gross wages lost, as reported by the EA.

Payment in these instances should be calculated manually and processed as a direct payment. Payment should not be made at the "100% compensation rate" in the case management system, as this amount may not be equal to the actual wages lost.

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Exhibit 1: Minimum Compensation Rates

EFFECTIVE DATE

DISABILITY MIN COMP RATES PER

DEATH MIN
PAY RATES
PER MONTH

DAY

WEEK (4 WEEK)

10/01/1949

5.19

25.96-(103.84)

150.00

10/01/1960

8.31

41.54-(166.16)

240.00

08/01/1966‡

11.32

56.61-(266.44)

327.08

10/08/1967†

11.85

59.25-(237.00)

342.33

07/14/1968†

12.21

61.03-(244.12)

352.58

07/13/1969†

12.58

62.88-(251.52)

363.33

12/28/1969†

13.33

66.65-(266.60)

385.08

01/10/1971

14.13

70.63-(282.52)

408.08

01/09/1972

14.90

74.51-(298.04)

430.50

10/01/1972

15.67

78.35-(313.40)

452.60

10/14/1973

16.39

81.95-(327.80)

473.50

10/13/1974

17.30

86.48-(345.92)

499.67

10/12/1975

18.16

90.81-(363.24)

524.67

10/10/1976

18.96

94.79-(379.16)

547.67

02/27/1977*

18.96

94.79-(379.16)

547.67

10/09/1977

20.29

101.47-(405.88)

586.25

10/08/1978

21.41

107.05-(428.20)

618.50

10/01/1979*

21.41

107.05-(428.20)

618.50

10/07/1979

23.45

117.23-(468.92)

677.33

10/05/1980

25.82

129.10-(516.40)

745.92

10/04/1981

27.06

135.30-(541.20)

781.75

01/01/1982*

27.06

130.30-(541.20)

781.75

10/03/1982

28.14

140.71-(562.84)

813.00

12/18/1982*

28.14

140.71-(562.84)

813.00

01/08/1984

29.27

146.34-(585.36)

845.50

01/06/1985

30.29

151.46-(605.84)

875.08

01/04/1987

31.20

156.00-(624.00)

901.33

01/03/1988

31.82

159.12-(636.48)

919.33

01/01/1989

33.13

165.63-(662.52)

957.00

01/14/1990

34.32

171.59-(686.36)

991.42

01/13/1991

35.73

178.63-(714.52)

1,032.00

01/12/1992

37.23

186.13-(744.52)

1,075.42

01/10/1993

38.60

193.01-(772.04)

1,115.17

(‡)

The amendments of 07/04/1966 established the minimum compensation rate in disability cases as 75% of the first step of GS-2 or the pay rate, whichever is less, and the minimum pay rate in death cases as the pay rate for the first step of GS-2.

(†)

1 day earlier for Postal Service

(*)

Maximum adjustment only. The minimum rate was not affected.

 

Exhibit 1: Minimum Compensation Rates (continued)

EFFECTIVE DATE

DISABILITY MIN COMP RATES PER

DEATH MIN
PAY RATES
PER MONTH

DAY

WEEK (4 WEEK)

01/08/1995

39.38

196.88-(787.52)

1,137.50

01/07/1996

40.16

200.81-(803.24)

1,160.25

01/05/1997

41.09

205.43-(821.72)

1,186.92

01/04/1998

42.03

210.16-(840.64)

1,214.25

01/03/1999

43.34

216.68-(866.72)

1,251.92

01/02/2000

44.98

224.91-(899.64)

1,299.50

01/01/2001

46.20

230.99-(923.96)

1,334.58

01/02/2002

47.86

239.31-(959.24)

1037.00

01/02/2003

49.34

246.72-(986.88)

1425.50

01/12/2004

50.68

253.38-(1013.52)

1464.00

01/09/2005

51.94

259.72-(1038.88)

1501.00

01/08/2006

53.03

265.17-(1060.68)

1532.08

01/07/2007

53.94

269.69-(1078.72)

1558.16

01/06/2008

55.28

276.42-(1105.67)

1597.08

01/09/2009

56.89

284.44-(1137.75)

1643.42

01/03/2010

57.74

288.71-(1154.83)

1668.08

01/01/2011

57.74

288.71-(1154.83)

1668.08

01/01/2012

57.74

288.71-(1154.83)

1668.08

 

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Exhibit 2: Maximum Compensation Rates

EFFECTIVE DATE

DISABILITY MIN COMP RATES PER

DEATH MIN
PAY RATES
PER MONTH

DAY

WEEK (4 WEEK)

11/01/1949

24.23

121.15 (484.60)

525.00

10/01/1960*

24.23

121.15 (484.60)

525.00

08/01/1966‡

66.38

331.92 (1,327.68)

1,438.31

10/08/1967†

69.00

345.01 (1,380.04)

1,495.06

07/14/1968†

74.17

370.83 (1,483.32)

1,606.94

07/13/1969†

80.97

404.84 (1,619.36)

1,754.31

12/28/1969†

85.82

429.12 (1,716.48)

1,859.50

01/10/1971

90.93

454.66 (1,818.64)

1,970.19

01/09/1972

95.94

479.71 (1,918.84)

2,078.75

10/01/1972

100.88

504.39 - (2,017.56)

2,185.69

10/14/1973

103.85

519.23 - (2,076.92)

2,250.00

10/13/1974*

103.85

519.23 - (2,076.92)

2,250.00

10/12/1975

109.04

545.19 - (2,180.76)

2,362.50

10/10/1976

114.23

571.15 - (2,284.60)

2,475.00

02/27/1977

126.70

633.5 - (2,534.00)

2,745.19

10/09/1977

135.65

678.25 - (2,713.00)

2,939.06

10/08/1978

137.02

685.10 - (2,740.40)

2,968.75

10/01/1979

143.10

715.50 - (2,862.00)

3,100.50

10/07/1979

144.56

722.78 - (2,891.12)

3,132.03

10/04/1981*

144.56

722.78 - (2,891.12)

3,132.03

01/01/1982

165.87

829.33 - (3,317.32)

3,593.75

10/03/1982*

165.87

829.33 - (3,317.32)

3,593.75

12/18/1982

182.06

910.31 - (3,641.24)

3,944.69

(*)

Minimum adjustment only. The maximum rate was not affected.

(‡)

The amendments of 07/04/66 established the maximum compensation rate as 75% of the highest step of GS-15.

(†)

1 day earlier for Postal Service

Prior to 09/07/74, total monthly compensation could not exceed the monthly pay or the minimum compensation rate. Effective 09/07/74, total monthly compensation could not exceed the monthly pay except for CPI increases (5 USC 8146a), or the maximum monthly compensation rate.

In cases where maximum compensation is paid, proportionate shares are as follows:

Prior to 09/07/74:
Widow/er only--All
Widow/er--8/11, 1 child--3/11
Widow/er--4/7, 2 children--3/7
Widow/er--8/15, 3/more children--7/15

Effective 09/07/74:
Widow/er only--All
Widow/er--3/4, 1 child--1/4
Widow/er--3/5, 2/more children--2/5

 

Exhibit 2: Maximum Compensation Rates (continued)

EFFECTIVE DATE

DISABILITY MIN COMP RATES PER

DEATH MIN
PAY RATES
PER MONTH

DAY

WEEK (4 WEEK)

10/05/1980*

144.56

722.78 - (2,891.12)

3,132.03

10/04/1981*

144.56

722.78 - (2,891.12)

3,132.03

01/01/1982

165.87

829.33 - (3,317.32)

3,593.75

10/03/1982*

165.87

829.33 - (3,317.32)

3,593.75

12/18/1982

182.06

910.31 - (3,641.24)

3,944.69

01/08/1984

189.35

946.76 - (3,787.04)

4,102.63

01/06/1985

195.98

979.90 - (3,919.60)

4,246.25

01/04/1987

201.85

1,009.27 - (4,037.08)

4,373.50

01/03/1988

205.90

1,029.48 - (4,117.92)

4,461.06

01/01/1989

214.34

1,071.68 - (4,286.72)

4,643.94

01/14/1990

222.06

1,110.32 - (4,441.28)

4,811.38

01/13/1991

231.17

1,155.84 (4,623.36)

5,008.62

01/12/1992

240.87

1,204.36 - (4,817.44)

5,218.88

01/10/1993

249.78

1,248.88 - (4,995.52)

5,411.81

01/08/1995

254.79

1,273.93 - (5,095.72)

5,520.38

01/07/1996

259.88

1,299.38 - (5,197.52)

5,630.63

01/05/1997

265.85

1,329.25 - (5,317.00)

5,760.06

01/04/1998

271.98

1,359.91 - (5,439.64)

5,892.94

01/05/1998

265.85

1,329.25 - (5,317.00)

5,760.06

01/03/1999

280.39

1,401.94 - (5,607.76)

6,075.06

01/02/2000

283.59

1,427.93 - (5,671.72)

6,144.38

01/01/2001

298.91

1,494.56 - (5,978.24)

6,476.44

01/02/2002

309.68

1.548.42 - (6,193.68)

6,709.81

01/01/2003

319.28

1,596.38 - (6.385.52)

6,917.63

01/12/2004

327.91

1,639.53 - (6,558.12)

7,104.63

01/09/2005

336.11

1,680.53 - (6,722.12)

7,282.00

01/08/2006

343.14

1,715.72 - (6,862.88)

7,434.81

01/07/2007

348.98

1,744.92 - (6,979.68)

7,561.31

01/06/2008

357.72

1,788.61 - (7,154.42)

7,750.62

01/10/2009

360.09

1,840.44 - (7,361.77)

7,975.25

01/03/2010

373.61

1,868.03 - (7,472.13)

8,094.81

01/01/2011

373.61

1,868.03 - (7,472.13)

8,094.81

01/01/2012

373.61

1,868.03 - (7,472.13)

8,094.81

(*) Minimum adjustment only. The maximum rate was not affected.

 

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Exhibit 3: Cost-Of-Living Adjustments under 5 U.S.C. 8146a

Effective Date

CPI Rate Change (%)

10/01/1966

12.5

01/01/1968

3.7

12/01/1968

4.0

09/01/1969

4.4

06/01/1970

4.4

03/01/1971

4.0

05/01/1972

3.9

06/01/1973

4.8

01/01/1974

5.2

07/01/1974

5.3

11/01/1974*

6.3

06/01/1975

4.1

01/01/1976

4.4

11/01/1976

4.2

07/01/1977

4.9

05/01/1978

5.3

11/01/1978

4.9

05/01/1979

5.5

10/01/1979

5.6

04/01/1980

7.2

09/01/1980

4.0

03/01/1981

3.6

03/01/1982

8.7

03/01/1983

3.9

03/01/1984

3.3

03/01/1985

3.5

03/01/1986

None

03/01/1987

0.7

03/01/1988

4.5

03/01/1989

4.4

03/01/1990

4.5

03/01/1991

6.1

(*)

Before 09/07/74, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis, or the nearest multiple of $.23 on a weekly basis ($.23, $.46, $.69, or $.92). After 09/07/74, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest multiple of $.25 on a weekly basis ($.25, $.50, $.75, or $1.00).

 

Prior to 11/01/74
.08-.34= .23
.35-.57= .46
.58-.80= .69
.81-.07= .92

Effective 11/01/74
.13-.37= .25
.38-.62= .50
.63-.87= .75
.88-.12= 1.00

 

Exhibit 3: Cost-Of-Living Adjustments under 5 U.S.C. 8146a (continued)

Effective Date

CPI Rate Change (%)

03/01/1992

2.8

03/01/1993

2.9

03/01/1994

2.5

03/01/1995

2.7

03/01/1996

2.5

03/01/1997

3.3

03/01/1998

1.5

03/01/1999

1.6

03/01/2000

2.8

03/01/2001

3.3

03/01/2002

1.3

03/01/2003

2.4

03/01/2004

1.6

03/01/2005

3.4

03/01/2006

3.5

03/01/2007

2.4

03/01/2008

4.3

03/01/2009*

(0.5) = No change

03/01/2010

3.4

03/01/2011

1.7

03/01/2012

3.2

(*)

December 2007 had a CPI-W level of 205.777 per BLS. The CPI-W level for December 2008 was reported as 204.813 by BLS, which is in fact a decrease of 0.5% from the December 2007 level. As a result of this decline in the CPI-W level, there was not a cost of living increase for FECA recipients in 2009.

 

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Exhibit 4: Activity Codes

In the iFECS case management system, it is necessary to assign an Activity Code to certain groups of cases so that iFECS performs certain calculations. For instance, Military Reservists cases are not entitled to the minimum pay rate calculations or CPI's; thus, an Activity Code of "002" must be placed in iFECS. The default code is "001," so the keyer must change the code to "002."

ACTIVITY CODE

TYPE OF CASE

CASE PREFIX

001

Federal Civilian Employee

X, no prefix, or
any district
office prefix

002

Military Reservists
(no minimum; no cost-of-living increases)

X, or any
district office
prefix

003

Civil Air Patrol

CP

004

Reserve Officer Training (ROTC)

TC

005

Maritime War Risk

RA

006

Federal Relief Projects

WP, NY, CC,
FE, CA, FH

007

War-connected Benefits for
Employees of Government Contractors

WH

008

Civilian War Benefits

CB

009

Total Benefits, War Claims

WC

010

Social Welfare Programs

X, VISTA, A50 prefix

011

Law Enforcement Officers (LEO)

LE

012

Coast Guard Auxiliary
(no minimum; no cost-of-living increases)

Any prefix

013

Job Corps (no minimum)

Any prefix

014

Neighborhood Youth Enrollees

Any prefix

015

Military Reservists Survivor

Any prefix

016

Members of Woman's Army Auxiliary

Any prefix

017

Peace Corps Volunteer Leader

Any prefix

099

Other

Any prefix

 

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Chapter 2-1000, Dual Benefits

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/09

09-05

 

12/97

98-02

1. Purpose and Scope

02/95

95-08

2. Statutory Provisions

02/95

95-08

3. Responsibility

02/95

95-08

4. Annuity Benefits Paid by Office of Personnel Management

02/95

95-08

 

01/97

97-08

5. Obtaining Elections Between OWCP and OPM Benefits

02/95

95-08

6. Entitlement to Other Benefits Under the FECA

02/95

95-08

7. Foreign Service Retirement and Disability System

02/95

95-08

8. Veterans' Benefits

02/95

95-08

 

02/96

96-11

 

12/97

98-02

9. Military Reservists

02/95

95-08

10. Armed Forces and Other Uniformed Services

02/95

95-08

11. Social Security Benefits

02/95

95-08

12. Tennessee Valley Authority

02/95

95-08

13. Black Lung Benefits

02/95

95-08

 

10/96

97/01

14. Railroad Retirement Act Benefits

02/95

95-08

15. Department of Justice Benefits Paid for Survivors of Federal Law Enforcement Officers

02/95

95-08

16. Benefits for Judicial Officials Assassinated in Performance of Duty

02/95

95-08

17. Severance and Separation Pay

06/09

09-05

 

04/96

96-14

Exhibits

1. Restrictions on Payment of Benefits Under the FECA Concurrently with Benefits Under Other Federal Programs

02/95

95-08

2. OPM Contact List (Link to Image)

12/97

98-02

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1. Purpose and Scope. his chapter explains dual benefits allowed and prohibited under the FECA and establishes procedures for obtaining required elections and for requesting refunds when dual payments have been made.

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2. Statutory Provisions. 5 U.S.C. 8116 outlines the limitations on the right to receive compensation and the necessity for an election between certain prohibited dual benefits (see Exhibit 1).

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3. Responsibility. It is the responsibility of the Claims Examiner (CE) to determine if the claimant either qualifies for or is receiving benefits from another Federal agency. When a claimant is entitled to or is receiving a benefit from another agency, the CE must determine if that benefit constitutes a prohibited dual benefit and requires an election, or if it is an exception which will not affect the claimant's compensation entitlement.

Where receipt of dual benefits is prohibited, the CE must advise the claimant of the entitlement as well as the need for and terms of the election appropriate to that case. The CE should make every effort to obtain a timely election where necessary to ensure that the claimant does not suffer undue hardship while awaiting compensation payments.

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4. Annuity Benefits Paid by Office of Personnel Management. References: FECA Program Memoranda (ProM) Nos. 12, 27, 72, 90, 138 242, 249, 262, 263 and 267. (For non-Federal retirement systems standing in lieu of the Civil Service Retirement System, see ProM Nos. 242 and 262.)

a. Disability Compensation. When a claimant is entitled to disability benefits under the Federal Employees' Compensation Act (FECA), and annuity benefits from the Office of Personnel Management (OPM) under the Civil Service Retirement System Act (CSRS) or the Federal Employees' Retirement System Act (FERS), the employee must make an election between OWCP benefits and OPM benefits. The employee has the right to elect the monetary benefit which is the more advantageous. This policy also applies to reemployed annuitants (see Harold Weisman, Docket No. 93-1335, issued March 30, 1994). (The claimant may receive concurrent benefits from the Office of Workers' Compensation Programs (OWCP) and the Thrift Savings Fund.)

Section 5 U.S.C. 8337(f) provides that the prohibition against the payment of dual benefits does not bar the right of a claimant to the greater benefit conferred by either Act for any part of the same period of time. Thus, an election of disability compensation under the FECA or an election of an annuity benefit provided by OPM is not irrevocable.

b. Death Benefits. When compensation for death is payable under the FECA and fatal benefits are payable under CSRS or FERS, the eligible survivor(s) must make an election between OWCP benefits and OPM benefits. This includes the lump sum death benefit paid under the FERS, though any beneficiary may concurrently receive benefits from OWCP and the Thrift Savings Fund.

The Employees' Compensation Appeals Board held in the case of Adeline Etzel, 21 ECAB 151, that the statutory language concerning irrevocability of election was intended to apply only to those cases where:

the disability or death of an employee has resulted from an injury sustained in civilian employment by the United States and the Veterans Administration has held that the same disability or death was caused by military service.

Therefore, except for those few cases where an election of veterans' benefits and FECA benefits is required for the reason stated in Etzel, the OWCP considers any election of death benefits provided by OWCP and OPM to be revocable. However, OPM considers an informed election of OWCP benefits in lieu of OPM benefits to be irrevocable.

Where a survivor is entitled to both an annuity from OPM in his or her own right because of his or her own Federal service, and an entitlement to death benefits under the FECA, no election is required between these two benefits. Similarly, if the money paid by the OPM is paid to the (former) employee and/or his or her estate, death benefits paid to the survivor would not constitute a dual benefit (unless the OPM benefit were paid directly to the survivor in his or her own right).

c. Communications with OPM's Office of Retirement Programs. All correspondence with OPM, whether by form or narrative letter, shall contain the claimant's full name, OPM claim number, date of birth and Social Security number. Where closed benefit periods are involved, they should be shown clearly in terms of inclusive dates (e.g., "Compensation was paid from (date) through (date), inclusive."). The type of FECA benefit (i.e., disability, schedule award, or death) must be identified also. Where OPM so requests, the CE should provide a copy of any later formal decisions or letters describing benefits to OPM.

d. Effect of Lump Sum Payment by OPM. 5 U.S.C. 8343a(b) provides that OPM shall offer alternative forms of annuities for employees retiring under the Civil Service Retirement Act. These forms include payment of a lump-sum credit plus payment of an actuarially reduced annuity. Since the lump-sum credit is clearly part of the retirement benefit (and not simply a refund to the employee of the contributions the employee made to CSRS), it is considered a dual benefit which is prohibited under 5 U.S.C. 8116(a). Similarly, the lump-sum death benefit under FERS authorized in 5 U.S.C. 8442 is also considered a prohibited dual benefit.

e. Social Security Act Benefits. Social Security benefits are payable concurrently with FECA benefits, but the following restrictions apply:

(1) Social Security Act benefits paid for disability shall be reduced by the compensation payable;

(2) In disability cases, FECA benefits will be reduced by the Social Security Act benefits paid on the basis of age and attributable to the employee's Federal service;

(3) In death cases, FECA benefits will be reduced by the survivor's benefits paid under the Social Security Act attributable to the employee's Federal service.

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5. Obtaining Elections Between OWCP and OPM Benefits.

a. In all death cases, and in disability cases where the record indicates that a claim has been made for benefits under CSRS or FERS, the CE should release Form CA-1101 to OPM during initial development of the claim. This request should help to ensure that the necessary information about the status of the claim for annuity is in file when entitlement to FECA benefits is determined. If the initial response from OPM is negative, but some time elapses before entitlement to FECA benefits is determined, the CE should make further inquiry to OPM before FECA benefits are paid if there is any reason to believe that a claim for OPM benefits was later made.

b. When an election is required in a disability case, the CE will release Form CA-1102 to the employee, with copies to all parties in interest. This letter provides information about the rate of compensation payable and the employee's right to elect the more advantageous benefit. Two copies of Form CA-1105, Election of Benefits, should accompany Form CA-1102.

(1) Pay Rates. The monthly rate of the compensation entitlement should be shown on Form CA-1102, so that the employee may compare the two benefits easily. The four-weekly rate should also be indicated.

(2) Retroactive Payment. When the claimant is entitled to retroactive compensation and CPIs are applicable, the form should show the amount payable for each period from the beginning of entitlement to the present.

(3) Certification. The CE should have both the finding of entitlement and the determination of the compensation rate certified before releasing Form CA-1102.

(4) Lump Sum. Form CA-1102 also advises the employee that any lump sum paid by OPM under CSRS as part of an alternative annuity (equal to the employee's contribution) is considered a dual benefit which would have to be repaid to OPM either directly or out of any retroactive and continuing FECA benefits. No benefits under FECA can be paid to a claimant until the entire amount of benefits paid by OPM (including both regular annuity payments and the lump sum) has been recouped. Under no circumstance should OWCP pay any retroactive benefits to a claimant until the possibility of an outstanding debt to OPM is resolved.

c. When an election is required in a death case, the CE will release Form CA-1103 to the person claiming the death benefit, with copies to all parties in interest. This letter provides information about the rate of compensation payable and the right of election. Two copies of Form CA-1105, Election of Benefits, should accompany Form CA-1103.

(1) Terms of Entitlement. To permit an informed election, the CE should ensure that complete information is provided. The information should include the terms of and the termination dates of compensation for each beneficiary involved in the award.

(2) Retroactive Payment. When the beneficiary is entitled to retroactive compensation and CPIs are applicable, the election form should show the amount payable for each period from the beginning of entitlement to the present.

(3) Certification. The CE should have the findings of entitlement, the determinations of compensation rates, and periods of entitlement certified before releasing Form CA-1103.

(4) Lump Sum. Form CA-1103 also advises the claimant that any lump sum paid by OPM as part of the death benefit available under FERS is considered a dual benefit which would have to be repaid to OPM before any FECA benefits could be paid to the claimant. Such repayment would be made either directly by the claimant or through payment of all retroactive FECA benefits and a portion of the continuing benefits.

The FERS lump sum is paid to the surviving spouse only; FECA benefits paid to children would not be a dual benefit. In some cases, therefore, a spouse may find it more advantageous to elect FECA benefits for the children but not for herself or himself and thus avoid repaying the FERS lump sum.

d. On return of Form CA-1105 electing FECA benefits, the CE should take the following actions:

(1) Contact the appropriate person at OPM using the list of telephone numbers provided in Exhibit 2. Inform the contact person in OPM of the claimant's election to receive benefits under the FECA, and request that the OPM annuity be suspended immediately. It will be necessary to provide OPM with the claimant's name, current address and OPM claim number.

(If this information is not on the election form, contact the claimant by telephone to obtain it. If the claimant does not know his or her OPM claim number, be prepared to provide OPM with the claimant's date of birth and Social Security number).

The CE should also furnish his or her telephone number to the OPM representative so that he or she can confirm that the annuity has been suspended. This confirmation should come within 72 hours. If it does not, follow up with OPM.

(2) When OPM confirms that the annuity has been suspended, the CE will take action to commence payment of compensation on the periodic roll. The effective date should be the date OPM benefits were suspended, except when repayment of a lump-sum benefit to OPM is necessary. (In this situation, the CE will follow the procedures outlined in subparagraph (5) below.)

(3) The CE will then release Form CA-1104, with copies to all parties of interest, advising OPM of the date FECA compensation began, and requesting that OPM transfer the health benefits enrollment and advise OWCP of the total amount of benefits paid by OPM from the effective date of the claimant's election until the annuity was suspended. A copy of the claimant's election form will be enclosed with the original letter to OPM.

If there is no retroactive compensation from which to reimburse OPM for benefits paid on and after the effective date of election, the CE should so advise OPM on Form CA-1104 and indicate the net amount of the FECA periodic payment. OPM will then afford the claimant appropriate due process and request offset from continuing FECA payments (see paragraph 6f below).

(4) Upon receipt of a reply to Form CA-1104, the CE should take action to pay the claimant retroactively to the effective date of the election, less reimbursement owed to OPM for annuity benefits, and to transfer the claimant's health benefits enrollment to OWCP. The CE will show the claimant's OPM claim number when authorizing payment to OPM on Form CA-24, CA-25 or CA-25a. Under no circumstances should any retroactive compensation be paid until OPM has been reimbursed in full for the benefits it has paid.

(5) Where a lump-sum payment has been made to the claimant as part of an alternative annuity under CSRS or as part of the death benefit under FERS, FECA benefits should not be paid until OPM benefits can be fully reimbursed by the claimant or unless the retroactive benefits under the FECA fully cover the lump-sum annuity and OPM benefits. If the claimant has already been placed on the periodic roll and the retroactive compensation is insufficient to reimburse OPM, the case should be referred to National Office for further action.

e. On return of Form CA-1105 electing OPM benefits, the CE should take the following actions:

(1) If the claimant is not receiving compensation, close the case on Form CA-800, Nonfatal Summary, or Form 105, Fatal Summary, indicating that OPM benefits have been elected, refer the case to the inactive files; and enter the change of case status in the CMF.

(2) If the claimant is receiving compensation, take action to terminate compensation and compute any reimbursement that may be owed by OPM. Release Form CA-1107 to OPM, with a copy of Form CA-1105. This will notify OPM of the election of OPM benefits; advise that compensation benefits have ended and that OPM benefits should begin; inform OPM of the amount of the reimbursement (if any) due OWCP; and provide OPM with the information which will allow them to transfer the claimant's health benefits enrollment (and life insurance enrollment, if applicable) to their rolls.

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6. Entitlement to Other Benefits Under the FECA.

a. Medical Treatment. Regardless of which monetary benefits the claimant elects, any medical treatment required for the effects of the compensable injury will continue to be provided under FECA.

b. Schedule Awards. These awards, payable under 5 U.S.C. 8107 for the permanent loss or loss of use of specified members, organs, or functions of the body, are the only FECA monetary compensation benefits payable concurrently within an OPM annuity. These dual benefits are allowable for injuries sustained on or after September 13, 1957. For injuries which occurred prior to that date, an election between these two benefits is required.

c. Vocational Rehabilitation. An employee in receipt of OPM retirement benefits is prohibited from receiving vocational rehabilitation assistance under FECA. See FECA ProM No. 27.

d. Attendant's Allowance.

(1) An employee entitled to total or partial disability benefits under 5 U.S.C. 8105 or 5 U.S.C 8106 who has elected to receive the benefits of the CSRS or the FERS Act may not receive an attendant's allowance under 5 U.S.C. 8111(a) during the time that benefits are being received under one of the retirement acts.

(2) When an employee is entitled to a schedule award under 5 U.S.C. 8107, the attendant's allowance is considered incidental to the award and may be paid concurrently with OPM retirement benefits during the period of the award. See FECA ProM No. 72.

e. Third-Party Credits. Where a claimant has made a third-party recovery resulting in a credit against the compensation entitlement, and it appears that additional compensation may be paid and medical expenses claimed, compensation payments are calculated and charged against the recovery credit to the case, as are injury-related medical expenses paid by the claimant. This procedure continues until the third-party credit is absorbed.

(1) OPM Annuity During Offset. There is no prohibition against receipt of an OPM annuity during the period that the third-party credit is being absorbed by OWCP. The claimant is not actually receiving compensation from OWCP during this period, so the payment of an annuity does not constitute a prohibited dual payment.

(2) Election After Offset. Receipt of an annuity during the third-party credit period does not prejudice the claimant's rights. Thus, when the credit has been exhausted, the claimant should be given an opportunity to elect between FECA benefits and continuation of the OPM annuity.

(3) As noted above, the OPM considers an informed election of OWCP death benefits (in lieu of OPM benefits) to be irrevocable. Thus, it is imperative that the claimant be informed fully of the available benefits, especially in cases involving possible third-party settlements.

(a) To make an informed election, the claimant must be made aware of the opportunity to receive OPM survivor benefits while the third-party credit is being absorbed. If an election is made without this knowledge, the election will be considered null and void.

(b) Inasmuch as the claimant is not required to make an election until after the third-party credit has been absorbed, the one-year time limitation of 5 U.S.C. 8116(b) will not begin to run until the third-party credit has been exhausted.

(4) Nonparticipants. Beneficiaries who do not participate in the third-party settlement are not affected by third-party credit offsets. (See FECA ProM No. 125.)

f. Refunds When Dual Benefits Have Been Paid.

(1) Refund Action When Repayment is Due OPM. A refund due OPM may be paid from accrued and/or continuing compensation, provided that the amount of the debt is at least $25.

(a) If there is an accrued amount of compensation payable by OWCP, OPM is not required to provide certification of due process before recovering the debt from the accrued OWCP benefits. Upon receipt of notification from OPM of the fact and amount of the debt, the district office will deduct the total amount of indebtedness from the accrued compensation and forward that amount to OPM.

(b) If there is accrued compensation but it is not sufficient to cover the total amount owed OPM, the district office will forward the entire accrued amount to OPM. When certification of due process is received from OPM as described below in subparagraph (c), the district office will make deductions from any continuing compensation payments until the debt has been repaid.

Where the claimant received a lump sum payment from OPM as part of an alternative annuity under CSRS or as part of the death benefit under FERS, OPM is not required to provide certification of due process. The district office may withhold continuing net compensation until OPM is fully repaid.

(c) Except where the claimant received a lump-sum payment from OPM as described above in subparagraph (b), OPM will certify in writing that the debt exists and that appropriate due process has been afforded the debtor to request offset from continuing compensation payments. OPM will advise the district office of either the dollar amount of the periodic deduction or the percentage of net compensation to offset each payment period.

In general, OPM will request a deduction of ten percent (10%) of the periodic payment, but not less than $50. A greater or lesser amount may be requested based on an agreement reached between OPM and the debtor. Whenever possible, OPM will try to recover the debt within 36 months.

(2) Method of Setting Up Payments.

(a) The CE will authorize repayment to OPM as a case payee on Form CA-25A, CA-25, or CA-24. The CE must indicate the total amount owed OPM and the amount to be deducted from each compensation payment.

(b) Payment to OPM will be transferred via Treasury's OPAC transfer of funds. A case payee (CP) will be entered in ACPS for this transaction.

(3) OPM Contract. OPM's Debt Collection Branch (DCB) handles debts owed to OPM. Once the DCB contacts the district office, all future correspondence concerning the debt should be sent to the DCB. District office staff are encouraged to call the DCB at (202) 254-3094 to expedite resolution of cases.

(4) Refund action when repayment is due OWCP is described in FECA PM 5-505.11.

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7. Foreign Service Retirement and Disability System. References: FECA ProM Nos. 14 and 18.

a. Gratuities. Amounts equal to one year's salary at the time of death are paid to surviving dependents of Foreign Service employees who die as the result of injury sustained in the performance of duty outside the United States, excluding diseases proximately caused by the employment. These payments are considered gifts and are payable in addition to compensation or benefits from any other source.

b. Other Benefits. An election is required between FECA benefits and other benefits of the Foreign Service Retirement System. The injured employee is permitted, however, to receive for any period of time the greater of the two benefits. The provisions of this retirement system are substantially the same as those of the Civil Service Retirement System regarding the receipt of these dual benefits. The procedures as outlined in paragraph 4 above should be followed in regard to providing benefits and obtaining elections where benefits of the FECA and the Foreign Service Retirement System are involved.

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8. Veterans' Benefits. References: FECA ProM Nos. 80, 108, 123, 166, 169, 175, 180 and 200.

a. Contacting the DVA. Information from DVA files is often helpful in adjudicating claims and preventing dual payments. In particular, when the record shows that an applicant for FECA benefits is receiving veterans' benefits, the CE must determine the nature of those benefits. Such information should be obtained as follows:

(1) Form CA-1019 or Form CA-1077 will be used to request information from DVA whenever possible. Otherwise, a narrative letter should be sent. This letter must contain all identifying information indicated on the form. Requests for information from DVA files must be accompanied by a completed Form CA-57, Authorization for Release of Information.

(2) Preparing the Form. All available identifying information must be entered in the upper right corner of Form CA-1019 or CA-1077. Additional information, such as a Social Security number, can be added if available.

(3) Identification. Requests to the DVA must, if possible, include the veteran's DVA claim number. If the DVA claim number is not available, the request must include at least the veteran's date of birth and military service number. Other helpful identifying information would include the Social Security number, the approximate date the veteran's benefits were last received, the location where the veteran's claim was filed, and the location and approximate date DVA medical services were last received.

(4) Addresses. DVA benefit records are maintained in the DVA Regional Offices (DVARO). In some places the regional offices are combined with an insurance center, hospital, or domiciliary and are known as DVA Centers. In the District of Columbia, the equivalent of a regional office is known as the Veterans Benefits Office. The U.S. Government Organization Manual contains the addresses of DVA Regional Offices, DVA Centers, and DVA Hospitals.

If the location of the DVA claims folder is unknown, send the request to the DVARO or DVA Center which likely has jurisdiction over the claimant's address. Where regional boundaries are unknown, the Assistant District Director should obtain this information from the DVA. Any DVA office can locate a file on the computer system.

Requests for medical reports of examinations or treatment provided by a DVA Hospital should be sent to the hospital which provided the service.

(5) Information Received. If the reply shows that the veteran's award is other than "pension for service in the Army, Navy or Air Force," the CE must determine whether the award is based on a finding that the same disability or death for which FECA benefits are payable was caused by the military service, or whether the DVA increased an award or found an award was payable for service-connected disability, because of the civilian employment injury for which FECA benefits are claimed (see examples in paragraph b below).

(a) If so, an election between these benefits is required by 5 U.S.C. 8116(a)(3).

(b) If not, except for educational benefits as explained in paragraphs 8c and 8d below, no election is necessary.

b. Definitions. If the veteran's benefit was for a non-service-related condition, no election is required. The following discussion addresses claims involving service-related conditions.

(1) The prohibition against dual payment of FECA and veterans' benefits applies to those cases where the disability or death of an employee has resulted from an injury sustained in civilian employment by the United States and the Department of Veterans Affairs (DVA), formerly the Veterans Administration, has held that the same disability or death was caused by the military service. See Adeline N. Etzel, claiming as widow of Bernard E. Etzel (21 ECAB 151).

Example: Federal employee, a veteran, is disabled by or dies from pulmonary tuberculosis. DVA finds that the disease became manifest within the medical presumptive period after military service and grants benefits on the basis of military service connection. OWCP finds that the disability or death resulting from this disease is related to veteran's Federal civilian employment and grants FECA benefits. Employee or his survivors are eligible for both FEC and veterans' benefits for the same disability or death, namely, that resulting from pulmonary tuberculosis. An election is required.

(2) The prohibition also extends to an increase in a veteran's service-connected disability award, where the increase is brought about by an injury sustained while in civilian employment. See Louis Teplitsky (22 ECAB 142) and France Marie Kral (24 ECAB 157).

Example 1: A Federal employee is receiving benefits from the DVA for 50 percent disability due to a service-connected emotional condition, and has a civilian employment injury which causes a disabling aggravation of the pre-existing emotional condition. OWCP determines that the employee has a total loss of wage-earning capacity due to the emotional condition. Subsequent to the employment injury, DVA increases its award to 100 percent as a result of the aggravation by the civilian employment injury.

An election between benefits is required in this case. The election will be between the amount of entitlement under FECA plus the amount received from the DVA for 50 percent prior to his civilian employment injury, on the one hand, and the total amount of entitlement from the DVA for 100 percent, on the other hand.

In other words, no election is required between the veteran's benefit the claimant was receiving at the time of the civilian employment injury and the FECA benefits to which the claimant is entitled for the civilian employment injury because these benefits are not payable for the same injury. When the DVA increased its benefits an election was required because the increased benefits were payable because of the same employment injury which formed the basis of entitlement to FECA benefits.

Example 2: A Federal employee is receiving benefits from the DVA for 20 percent disability based on a service-connected injury to the right knee. A subsequent injury to the same knee while in civilian employment results in 25 percent disability of the leg, for which FECA benefits are payable. The DVA increases its award to 30 percent because of the civilian employment injury.

The election required in this case is the same as that required in Example No. 1 above--i.e., between a schedule award, for the full extent of the permanent loss of the use of the leg under the FECA plus the amount received from the DVA prior to the employment injury, on the one hand, and the total benefits provided by the DVA subsequent to its increase, on the other hand.

(a) No reduction in a schedule award is required under 5 U.S.C. 8108 where the DVA has made an award for an earlier injury to the same member (see Example 2 above). It has been determined that the word "injury" as used in 5 U.S.C. 8108 means an earlier injury received while in Federal civilian employment.

(b) The claimant may be entitled to compensation for loss of wage-earning capacity (LWEC) at the expiration of the schedule award (see Example 2 above). If so, an informed election cannot be made until the claimant's LWEC is determined.

Thus, two elections are possible and permitted in such cases--the first between the schedule award under the FECA and the veteran's benefit, and the second between compensation for LWEC under the FECA and the veteran's benefit. The conditions of both elections would be as outlined in Example 2 above.

(3) The prohibition does not extend to pensions, since Section 5 U.S.C. 8116(a)(2) expressly provides that there is no limitation on the right to receive FECA compensation because of the receipt of a pension for service in the Army, Navy or Air Force. The receipt of a pension from the DVA for a non-service-connected disability or death and the payment of compensation under the FECA is therefore not a prohibited dual benefit, and no election is required.

(4) The DVA pays other benefits to veterans and their survivors, which are variously termed compensation, dependency and indemnity compensation, and educational assistance, etc., other than for educational awards. The payment of compensation under the FECA concurrently with such veterans' benefits would constitute a prohibited dual payment only where the veteran's award is based on the finding that the same disability or death for which FECA benefits are payable was caused by the military service. See paragraph 8b above.

(5) When several kinds of disability are present, the DVA combines the percentages allowed for each disability (using a method of computation similar to the combined values chart in the AMA Guides to the Evaluation of Permanent Impairment). The resulting percentage is often less than the sum of all impairments. For instance, the veteran may have 40% disability due to one condition, 30% due to a second condition, and 10% due to a third condition, for a total award of 60%.

(a) When determining percentages for election, the CE should use the amount of the percentage for the work-related condition only.

(b) The amount of the percentage should not be pro-rated to account for use of the combination method. In the example given above, if the work-related condition is the one for which the DVA has granted 40% disability, the entire 40% should be used in determining the amount of the election.

(c) For privacy reasons, the DVA may not provide information about percentages of disability for conditions other than the work-related one. The CE may need to contact the claimant directly to obtain a copy of the notice of benefits showing the percentages paid for each disability.

c. Educational Benefits.

(1) Educational benefits provided under the GI Bill are based on the veteran's own military service. Educational benefits (i.e., benefits for students) under the FECA are based on the employment and the related disability or death of the recipient's relative. The prohibition against concurrent payments contained in 5 U.S.C. 8116 applies only to payments based on the same disability or death. No election is required for educational benefits under the GI bill.

(2) Unless the veteran's educational award is designated a pension or is paid as outlined in the preceding paragraph, the following procedures apply:

(a) Where a widow(er) or child is eligible for benefits based on school attendance under both the FECA and laws administered by the DVA, an election is required, regardless of whether the eligibility for veterans' benefits is based on a finding that the disability or death was service-connected.

(b) Under certain circumstances, veterans' benefits for a widow(er) and the eligible children are divisible. Stated another way, the child or children have a "separate and independent right of election" to veterans' benefits.

(c) If a child does not have a separate and independent right of entitlement under the DVA law, the election by the veteran or the widow(er) is binding on the child in that the benefits for the child are payable only by the same agency paying benefits for the veteran or the widow/er.

(d) An election is binding only for the period of concurrent eligibility.

(e) The election of veterans' benefits by one or more beneficiaries in a family will not serve to increase the rate of compensation payable by OWCP to or on behalf of the other beneficiaries who continue to receive FECA benefits.

d. Obtaining Elections--Educational Benefits.

(1) In a disability case, if the payment of augmented compensation is contingent solely upon the eligibility of a child over 18 who is a student, the CE must determine whether the claimant is a veteran. If so, the CE must determine whether application has been made to the DVA for benefits (on behalf of the child) based on school attendance. This can be accomplished by use of Form CA-1615 or an equivalent narrative letter. Upon receipt of this information, the election procedure as described below in connection with death cases will be followed.

(2) In an accepted death case, the CE must determine whether the decedent was a veteran. If so, and if the decedent is survived by children 18 years of age or older who are eligible for educational benefits under the FECA, send Form CA-1615 or an equivalent letter to determine whether application has been made to the DVA for benefits based on school attendance.

If such application has been made, or benefits are being received, and Form CA-1077 has not previously been released, the CE should send Form CA-1078 to the DVA to determine whether the claimant is eligible for or is receiving veterans' benefits based on school attendance.

(3) Upon receipt of this letter, the DVA will reply in duplicate concerning the type and amount of such benefits and the period during which they have been paid or may be payable. In addition, they will advise whether the child has a separate and independent right of entitlement and can thereby make a separate and independent election of benefits.

(4) The CE should then release an informational letter to the claimant, attaching the copy of the DVA letter and three copies of a narrative election letter for each claimant who is required to make an election. The letter will clearly state the amount payable, the period during which they may be paid, and the basis for their termination.

The letter should also note the copy of the attached DVA letter which outlines the benefits payable by that agency and ask the claimant to make an election in narrative form and return two copies of the election to OWCP.

There may be circumstances when it is not appropriate for the CE to attach the copy of the DVA letter. If this occurs, it will be necessary for the CE to provide a sufficient explanation of the DVA benefits to allow the claimant to make an informed election.

(5) If OWCP benefits are elected and the facts show that prior to the election both agencies made payments concurrently, the CE will ascertain the amount paid by the DVA for periods on or after July 4, 1966, and will deduct such an amount from future payments. The deduction should be made from each monthly payment using a method which will result in minimum financial hardship for the claimant, yet will recover the amount within a reasonable period.

If only the DVA was making payments prior to the election, the CE will ascertain the amount paid by the DVA for periods on or after July 4, 1966, deduct that amount from accrued OWCP payments, and pay the balance to the claimant.

(6) If veterans' benefits are elected, the CE should advise the DVA office of the amount of any OWCP payment to be deducted from future DVA payments. The letter transmitting the election form to the DVA will reflect the amount of the OWCP payments, and the periods for which payments were made, on or after July 4, 1966.

(7) A copy of the election form must always be sent to the DVA. The letter transmitting the election will also request information regarding the amount paid by the DVA on or after July 4, 1966, A narrative letter must also be written to the claimant, with a copy to the DVA, explaining in full the payments, deductions, or method of recovery of dual payments.

(8) When OWCP educational benefits are terminated, a copy of the termination letter should be sent to the DVA office.

(9) The OWCP and the DVA have agreed that there will be no transfer of funds between agencies.

f. Obtaining Elections--Other Benefits. Cases requiring such an election will include those involving increases in service-connected awards made by the DVA because of civilian employment injuries, and those involving military reservists (see paragraph 9 below).

(1) When dual entitlement exists because of a disability which became manifest within the medical presumptive period after military service, as outlined in the example in paragraph 8b above, the CE should advise the DVA of OWCP's determination regarding the employment-relatedness of the condition. If DVA does not then change its determination as to service connection, an election between benefits is required.

(2) Where the DVA increases a service-connected award because of a civilian employment injury for which FECA benefits are payable, as outlined in the examples under paragraph 8b above, an election between benefits is required.

(3) The CE must advise the claimant of the full amount and terms of FECA entitlement and obtain an election in narrative form, between the two benefits.

(4) If FECA benefits are elected and OWCP and DVA made concurrent payments before the election, the CE will determine the amount paid by the DVA and deduct this amount from future payments. The deduction should be made from each monthly payment using a method which will result in minimum financial hardship for the claimant, yet will recover the amount within a reasonable period.

(5) If FECA benefits are elected and only the DVA made payments before the election, the CE will determine the amount paid by the DVA, deduct that amount from accrued OWCP payments, and pay the balance to the claimant.

(6) If DVA benefits are elected, the CE should advise the DVA of the amount of any OWCP payment to be deducted from future DVA payments. The letter transmitting the election form to the DVA will reflect the amount of the OWCP payments, and the periods for which payments were made.

(7) A copy of the election form must always be sent to the DVA. A narrative letter must also be written to the claimant, with a copy to the DVA, explaining the payments, deductions, or method of recovery of dual payments.

(8) When OWCP benefits are terminated, a copy of the termination letter should be sent to the DVA.

(9) OWCP and DVA have agreed that no funds will be transferred between agencies.

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9. Military Reservists.

a. Statutory Provisions. Before January 1, 1957, the benefits of the FECA were extended under certain circumstances to reservists of the armed forces and their beneficiaries where the injury or death of the reservist occurred in line of duty while on active duty. Public Law 81-881, approved August 1, 1956, terminated the FECA entitlement to these persons effective January 1, 1957.

Public Law 81-881 provided that the termination of coverage did not deprive any person of benefits to which there was eligibility by reason of disability or death occurring prior to January 1, 1957. It further provided that beneficiaries eligible for compensation for death occurring before January 1, 1957, could continue to receive benefits under the FECA or they could elect benefits from the DVA under PL 81-881.

b. Election Requirements. Since the eligibility for benefits provided by both the FECA and the DVA is based on the same period of service and the same death, an election is required.

c. Irrevocability of Election. The irrevocability of election provided by 5 U.S.C. 8116(b) applies to FECA benefits based on the injury or death of an "employee." Military reservists and their beneficiaries do not fall within the definition of employee as contained in 5 U.S.C. 8101(1). Thus, the beneficiaries in military reservist cases have the right, without time limitation, to elect veterans' benefits. However, under the provision of 38 U.S.C. 416, once an election is made to receive veterans' benefits, the beneficiary cannot later elect FECA benefits.

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10. Armed Forces and Other Uniformed Services. References: FECA ProM Nos. 116 and 131.

a. Dual Payment Not Prohibited. Effective September 7, 1974, 5 U.S.C. 8116(a) was amended to provide that retainer pay, retirement pay, or equivalent pay for service in the armed forces or other uniformed services may be continued while an employee is receiving FECA benefits subject to the limitations on receipt of dual compensation by retired officers contained in 5 U.S.C. 5532.

b. Injuries Before September 7, 1974.

(1) Before September 7, 1974, compensation due under the FECA was considered by OWCP to be the employee's basic benefit. Where the employee was receiving retirement or retainer pay, the employee and the military finance office making such payment were advised of the FECA entitlement. If the finance office found that the FECA payment would constitute a dual payment prohibited under 5 U.S.C. 8116, and if the employee agreed, OWCP would deduct the amount representing the dual payment and reimburse it to the finance center, paying the balance to the employee. If the employee did not agree to this arrangement, OWCP would pay the full amount of compensation due to the employee and notify the appropriate finance center of such payment. See Charles W. Akers, 24 ECAB 316.

(2) If compensation is claimed for an injury occurring before September 7, 1974, and the employee is receiving retirement or retainer pay, the full amount of the compensation entitlement will be paid to the employee. The CE, however, will write to the employee, with a copy to the military finance office, advising of the amendment and informing the employee that, effective September 7, 1974 and continuing, the employee may receive compensation and retirement or retainer pay concurrently.

c. Injuries On and After September 7, 1974. If the file reflects that the claimant is receiving retirement or retainer pay, compensation will be paid for appropriate periods. It will not be necessary to notify the military finance offices that compensation payments are being made. There is no need for OWCP to be concerned with reductions applicable to 5 U.S.C. 5532 since these reductions apply to the wages the recipient is receiving and will always have occurred before any injury compensable under the FECA.

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11. Social Security Benefits. References: FECA ProM Nos. 10, 20 and 81.

a. OASD Benefits. Old age, survivors, and disability under Title II of the Social Security Act, as amended, are insurance benefits paid from the Social Security insurance fund. These payments are financed by the contributions of employees and employers through the Social Security tax, and are not financed by the United States. Social Security benefits are payable only to persons insured under the system by their respective payments to the system's insurance fund.

b. Dual Payment Not Prohibited. OWCP does not require an election between FECA benefits and Social Security benefits, except when they are attributable to the employee's Federal service (see paragraph 4e above). The Social Security Act was amended on July 30, 1965, providing for a reduction in Social Security benefits to certain individuals receiving workers' compensation. Inquiries concerning this situation should be referred to the Social Security Administration. That agency will inform the beneficiary concerning the possible reduction of Social Security benefits.

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12. Tennessee Valley Authority. References: FECA ProM No. 177.

a. Pension Plan. The Tennessee Valley Authority Retirement System is a private pension plan. The limitations in 5 U.S.C. 8116 apply solely to situations where there is concurrent entitlement to compensation and to some other Federal benefit(s).

b. Dual Payment Not Prohibited. An election between FECA benefits and benefits under the TVA Retirement System is not required by OWCP. Under certain circumstances, the TVA may find that all or part of its retirement benefits are not payable concurrently with FECA benefits. Requests for offset of FECA compensation payments to repay overpayments made under the TVA Retirement System will be honored only upon written authority of the affected beneficiary.

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13. Black Lung Benefits. Reference: FECA ProM No. 172.

a. Dual Entitlement Not Prohibited. An election between FECA benefits and benefits under the Black Lung Benefits Act (Title IV of the Federal Mine Safety and Health Act of 1977) is not required under the provisions of 5 U.S.C. 8116.

However, claims under the Black Lung Benefits Act (BLBA) filed on and after January 1, 1974 come under Part C of that Act, and section 422(g) of Part C provides for reduction of Black Lung benefits by the amount of "... any compensation received under or pursuant to any Federal or State workmen's compensation law because of death or disability due to pneumoconiosis."

Claims under Part C are under the jurisdiction of the Office of Workers' Compensation Programs, Division of Coal Mine Workers' Compensation (DCMWC), and the responsibility for making appropriate reduction of Black Lung benefits under section 422(g) rests with DCMWC.

b. Potential Dual Benefit Cases Under the FECA. For all practical purposes, the FECA cases in which there is a potential FECA/BLBA dual benefit situation are those involving cardiopulmonary conditions due to exposure to coal dust filed by employees of the Mine Safety and Health Administration (MSHA) of the U.S. Department of Labor. (MSHA's predecessor agency was MESA, the Mine Enforcement and Safety Administration, U.S. Department of the Interior. Its functions were transferred to MSHA on March 9, 1978.) All MESA and MSHA cases fitting the above criteria are under the jurisdiction of the Kansas City District Office.

c. Exchange of Information Between DFEC and DCMWC.

(1) To identify those cases in which dual entitlement exists and to permit DCMWC to make appropriate deductions in BLBA benefits, the timely exchange of case file information between DFEC and DCMWC is necessary. Therefore, in all cases involving a cardio-pulmonary condition where exposure to coal dust is alleged to have contributed to the development of the claimed condition, the National Operations Office will complete Form OWCP-33 and forward it to OWCP, DCMWC, District Office Operations Staff, Frances Perkins Building, Room C-3522, Washington, D.C. 20210.

If necessary, the CE should at this time also request the coal mine employment record and any medical evidence pertaining to the injured employee which may be in the possession of DCMWC. If a claim for the identified individual has also been filed under the BLBA, DCMWC will so advise and, if needed, will request compensation payment information from DFEC.

Based on information contained in their records, DCMWC will also use Form OWCP-33 to query DFEC regarding the existence of a claim under the FECA for a specific individual and, where appropriate, request information about the claim. Any such request should be handled expeditiously.

(2) In any case where a dual benefit situation has been identified and the provisions of section 422(g) are applicable, DFEC is responsible for advising DCMWC of any changes in case or payment status, including commencement, increase, decrease and termination of compensation, as soon as possible after the change occurs. Further, such cases should be placed under periodic six-month call-up to ensure that DCMWC has been advised of all case/payment changes.

(3) Most cases under Part B of the BLBA (which also contains an offset provision) are handled by the Social Security Administration (SSA). Where a potential dual benefit situation of this type exists, DCMWC will request needed information from DFEC in the same manner as described above and will forward the information to SSA for appropriate action. The actions and responsibilities of DFEC in this situation are the same as described in paragraphs d(1) and (2) above.

d. Exchange of Information Between DFEC and DCMWC.

(1) To identify those cases in which dual entitlement exists and to permit DCMWC to make appropriate deductions in BLBA benefits, the timely exchange of case file information between DFEC and DCMWC is necessary. Therefore, in all cases involving a cardio-pulmonary condition where exposure to coal dust is alleged to have contributed to the development of the claimed condition, the National Operations Office will complete Form OWCP-33 and forward it to OWCP, DCMWC, District Office Operations Staff, Frances Perkins Building, Room C-3522, Washington, D.C. 20210.

If necessary, the CE should at this time also request the coal mine employment record and any medical evidence pertaining to the injured employee which may be in the possession of DCMWC. If a claim for the identified individual has also been filed under the BLBA, DCMWC will so advise and, if needed, will request compensation payment information from DFEC.

Based on information contained in their records, DCMWC will also use Form OWCP-33 to query DFEC regarding the existence of a claim under the FECA for a specific individual and, where appropriate, request information about the claim. Any such request should be handled expeditiously.;

(2) In any case where a dual benefit situation has been identified and the provisions of section 422(g) are applicable, DFEC is responsible for advising DCMWC of any changes in case or payment status, including commencement, increase, decrease and termination of compensation, as soon as possible after the change occurs. Further, such cases should be placed under periodic six-month call-up to ensure that DCMWC has been advised of all case/payment changes.

(3) Most cases under Part B of the BLBA (which also contains an offset provision) are handled by the Social Security Administration (SSA). Where a potential dual benefit situation of this type exists, DCMWC will request needed information from DFEC in the same manner as described above and will forward the information to SSA for appropriate action. The actions and responsibilities of DFEC in this situation are the same as described in paragraphs d(1) and (2) above.

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14. Railroad Retirement Act Benefits. Although payments under the Railroad Retirement Act (RRA) are funded by direct appropriations from Congress, these funds are derived from taxes levied upon the railroads and their employees. A study of the legislative history shows that it was the intent of Congress that payments under the RRA be funded entirely by these taxes, which are channeled through the general fund of the Treasury only to avoid Constitutional problems which might be caused by their being earmarked for a specific purpose.

These benefits are therefore not received "from the United States." Furthermore, since RRA benefits are not payable because of the service of the employee as a civil employee of the United States, they are not "salary, pay, or remuneration." Thus, RRA benefits do not qualify as prohibited dual benefits for two independently sufficient reasons, and no election is required.

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15. Department of Justice Benefits Paid for Survivors of Federal Law Enforcement Officers. Public Law 98-473 amended the Omnibus Crime Control and Safe Streets Act of 1968 to authorize benefits to officers who die as the direct and proximate result of a personal injury sustained in the line of duty. This benefit, which is paid under the Department of Justice, is to be paid in addition to any other benefit that may be due from any other source. Thus, payment of this benefit does not constitute a dual benefit and is not subject to any offset or reduction.

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16. Benefits for Judicial Officials Assassinated in Performance of Duty. Public Law 101-650, approved December 1, 1990, provides that the surviving spouse of an assassinated judicial official may be paid both an annuity and compensation under the FECA. Judicial officials covered under this provision include a justice or judge of the U.S.; a judge of the District Court of Guam, the District Court of the Northern Mariana Islands, or the District Court of the Virgin Islands; or a full-time bankruptcy judge or a full-time U.S. magistrate. The annuity may be reduced if the total amount payable exceeds the current salary of the officer of the judicial official. Any such adjustment would be made by the employing agency, not OWCP.

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17. Severance and Separation Pay. Employing agencies may grant severance pay to employees who are involuntarily separated as part of a reduction in force (RIF). Agencies may also offer separation pay ("buyouts") to encourage employees to leave Federal employment voluntarily. Certain severance and separation payments constitute dual benefits under the FECA.

a. Definitions.

(1) Severance pay was first authorized by the Federal Employees' Salary Act of 1965 (Pub. Law 89-301, since codified at 5 U.S.C. 5595). Under this statute, severance pay could not be paid "concurrently with salary or on account of the death of another person."

FECA Program Memorandum 55, dated January 24, 1968, interpreted the phrase "concurrently with salary" to allow payment of severance pay to claimants receiving benefits for LWEC, since the severance pay is calculated on the basis of the salary only, and does not take claimants' LWEC payments into consideration. Also, a schedule award may be paid concurrently.

Severance pay represents a certain number of weeks worth of salary or wages, and it is usually computed as a lump sum. Health benefits and optional life insurance coverage may continue during the period of severance pay as long as the OWCP eventually makes payments for the time period covered by the severance pay to the Office of Personnel Management (OPM).

(2) Separation pay is offered in different forms by different agencies. Sometimes it is defined as a number of weeks of pay, and other times as a specific amount of money, according to the law governing the agency in question.

For example, the Postal Service (in 1992) calculated its payments as six months of the employee's base pay, while the Department of Defense (starting in 1993) used the amount of severance pay to which the employee would have been entitled, or $25,000, whichever was less.

b. Information Needed. The CE should ask the employing agency to submit:

(1) A statement as to which benefit (severance or separation pay) the employee is to receive. If any doubt exists, a copy of the pertinent law (or a citation to it) should be sent.

(2) A statement as to the period and/or total amount of payments, and the date of retirement or separation.

(3) A copy of the claimant's acceptance of the offer of separation or severance pay (if applicable), and a copy of the retirement or separation papers.

c. Entitlement. The kinds of benefits allowed and prohibited are identical for separation and severance pay.

(1) Compensation for temporary total disability (TTD) may not be paid for the period covered by severance or separation pay. For example, if a claimant receives 13 weeks worth of severance pay, compensation is not payable until the fourteenth week.

(2) Compensation for LWEC may be paid concurrently with severance or separation pay, since the pay is based on the employee's salary, not the payments for LWEC. If an employee who is receiving compensation for LWEC receives severance or separation pay and then retires, an election of benefits will be required at the time of retirement.

(3) Compensation for a schedule award may be paid concurrently with severance or separation pay.

(4) Medical benefits are payable concurrently with severance and separation pay.

d. Methods of Offset. All severance payments are based on a specified number of weeks of pay. Some separation payments are based on a specific number of weeks of pay, while others are capped at a specified amount of money. However, in order to be equitable to all claimants, offsets for both types of payments should be computed in the same manner regardless of the way the employing agency has offered separation pay. (Lynne M. Schaack, Docket No. 05-695, issued November 9, 2005.)

(1) Where the severance or separation payment is based on weeks of pay, the CE should suspend compensation payments for the period in question, effective the date of separation or retirement, by 100% offset for the number of weeks (not the amount of money) which the severance or separation pay represents. (See paragraph e. below concerning health benefits and optional life insurance.)

(2) Where the separation payment is based on an amount of money, the CE should:

(a) Calculate the number of weeks worth of salary that the separation pay represents by dividing the total amount of separation pay by the salary used to compute it.

(b) Suspend compensation payments for the number of weeks calculated, effective the date of separation or retirement, by 100% offset for the number of weeks (not the amount of money) which the separation pay represents. (See paragraph e. below concerning health benefits and optional life insurance.

(3) The claimant should be advised that benefits for TTD will cease immediately because he or she has elected to receive severance or separation pay. The claimant should also be advised of the date on which the offset will end.

(4) Where the OWCP later discovers that a severance or separation payment was made for a period when compensation was paid, an overpayment must be declared and the usual due process rights given.

e. Health Benefits (HB) and Optional Life Insurance(OLI).

(1) For claimants with HB and/or OLI coverage, it may continue during the period of severance or separation pay as long as the claimant remains eligible for compensation benefits but for the severance or separation pay and OWCP eventually makes the premium deductions for the time period covered by the severance or separation pay.

(2) The agency will transfer the HB enrollment to OWCP effective the date that employment ceases. The claimant is responsible only for his or her own share of the premiums.

(3) The Temporary Continuation of Coverage (TCC) program allows involuntarily separated employees to continue HB coverage for a short period. The TCC program will not allow a person who is entitled to compensation to enroll, and it will terminate the enrollment of a person entitled to these benefits.

f. Claims for Additional Compensation.

(1) If a schedule award ends during the period covered by the separation or severance payment, the employee may claim additional compensation for disability (see subparagraph (2) below). If the claimant was not receiving compensation for disability before the schedule award, he or she would not be entitled to receive compensation afterwards unless the medical condition had worsened such that it disabled him or her from the regular or limited duty job performed before separation. Should entitlement to further compensation be established, the employee would need to elect between OWCP and OPM retirement benefits (if eligible).

(2) A separated employee who was not receiving compensation at the time of separation because of placement in a modified job with no loss of pay will not be entitled to further compensation at the end of the period covered by separation or severance pay solely because the modified job is no longer available. A claimant who has returned to duty, whether regular or light, has the burden of proof to show that injury-related disability had worsened to the point that he or she is now disabled for the limited duty position (see Terry L. Hedman, 38 ECAB 222).

(3) Benefits will not necessarily be reinstated in cases where the employee shows that the condition has worsened, since he or she might have been able to continue performing the modified job even if the condition worsened. Therefore, where a formal LWEC decision has not been issued, the employing agency should be asked to submit a description of the employee's job duties, including the physical requirements, at the time of separation. With this evidence, it will be possible to determine if the employee has any further entitlement to compensation.

(4) An employee who establishes that his or her accepted condition worsened to the point that he or she is unable to perform a modified job will be required to make an election of benefits, if eligible for retirement, since he or she has been formally separated. An employee who elects OWCP benefits should receive compensation for TTD and be considered for referral for vocational rehabilitation services to explore reemployment in another job.

(5) Employees working part time, or working full time but at lower rates of pay, will be entitled to continue receiving compensation at the end of the period covered by separation or severance pay at the LWEC rate, if injury-related disability continues and they elect OWCP benefits in favor of retirement benefits. Should a recurrence be claimed, it will be the employee's burden to show that injury-related disability has worsened (see subparagraph (2) above). If a formal LWEC decision has been issued, the claimant must establish one of the acceptable criteria for modifying a formal LWEC decision. (See PM 2-0814.11.)

(6) An employee who was performing regular duty at the time of separation would be entitled to receive compensation only if a true recurrence of disability were established (see subparagraph (2) above).

(7) An employee who accepts separation or severance pay and then changes his or her mind may not receive compensation for the duration of entitlement to separation pay or severance pay.

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Exhibit 1: Restrictions on Payment of Benefits Under the FECA

RESTRICTIONS ON PAYMENT OF BENEFITS UNDER THE FECA CONCURRENTLY WITH BENEFITS UNDER
OTHER FEDERAL PROGRAMS

I. Claimants must elect between Federal Employees' Compensation Act (FECA) benefits and the following benefits payable by other Federal agencies:

A. Civil Service Retirement System Act (CSRS) annuity benefits provided by the Office of Personnel Management (OPM), either regular or disability. The election is not irrevocable, but if a lump-sum payment has been made by OPM as part of an alternative annuity, this must be repaid in full either directly by the employee, or by OWCP from FECA benefits due, before the employee may begin receiving FECA benefits. If OPM benefits are elected, the employee is still entitled to payment of medical expenses for treatment of the accepted condition(s). If FECA benefits are elected, the employee may receive concurrently any benefits payable from the Thrift Savings Fund.

B. Federal Employees' Retirement System Act (FERS) annuity benefits provide by OPM, either regular or disability. The election is not irrevocable. If benefits provided by FERS are elected, the employee is still entitled to payment of medical expenses for treatment of the accepted conditions(s). If FECA benefits are elected, the employee may receive concurrently any benefits payable from the Thrift Savings Fund.

C. CSRS Act survivor benefits provided by OPM. When FECA benefits are elected, the beneficiaries may be paid by OPM the amount of the employee's contribution to the retirement fund in one lump sum. OWCP does not consider the election irrevocable. However, OPM considers an informed election of death benefits provided by OWCP to be irrevocable. If FECA benefits are elected, the beneficiary may receive concurrently any benefits payable from the Thrift Savings Fund.

D. FERS Act survivor benefits provided by OPM. OWCP does not consider the election irrevocable. However, OPM considers an informed election of death benefits provided by OWCP to be irrevocable. If OPM benefits have been paid, the lump sum payment provided as part of the FERS Act death benefit must be repaid in full either directly by the beneficiary, or by OWCP from FECA benefits due, before the beneficiary may begin receiving FECA benefits. If FECA benefits are elected, the beneficiary may receive concurrently any benefits payable from the Thrift Savings Fund.

E. Any retirement or survivor annuity which stands in lieu of either the CSRS or FERS Act, such as Foreign Service or Central Intelligence Agency disability and retirement programs. The election is not irrevocable.

F. Veterans' Disability or Death Benefits. The election is irrevocable only in those case where the disability or death of the employee has resulted from an injury sustained in civilian employment by the United States, and the Department of Veterans Affairs has held that the same disability or death was caused by military service.

II. Claimants need not elect between FECA benefits and the following, and may receive both concurrently:

A. Veterans' Pension (except as noted above in item F).

B. Fleet Reservist Pay.

C. Miliary Retirement or Retainer Pay.

D. Social Security Act Benefits. The following restrictions apply:

(1) Social Security Act benefits paid for disability shall be reduced by the compensation payable.

(2) FECA disability benefits will be reduced by the Social Security Act benefits paid on the basis of age and attributable to the employee's Federal service.

(3) FECA death benefits will be reduced by the survivor's benefits paid under the Social Security Act attributable to the employee's Federal service.

E. CSRS or FERS Annuity, if the FECA benefit is in the form of a schedule award for a specified number of weeks on the basis of a permanent loss or loss of use of a member or function of the body.

F. Department of Justice Law Enforcement Officers' Survivor Benefits. The $50,000 benefit paid to survivors of Federal Law Enforcement Officers who die as a direct result of an injury sustained in the line of duty under the Department of Justice does not constitute a dual benefit.

 

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Exhibit 2: OPM Contact List (Link to Image)

 

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Chapter 2-1300, Lump Sum Payments

Paragraph and Subject

Date

Trans. No.

Table of Contents

07/03

03-07

1. Purpose and Scope

09/92

92-35

 

07/03

03-07

2. Authority

09/92

92-35

 

07/03

03-07

3. Requests for Lump-Sum Payments

09/92

92-35

 

04/94

94-20

 

07/03

03-07

4. Calculating Lump-Sum Schedule Awards

07/03

03-07

5. Requests for Reconsideration of Lump-Sum Decisions

09/92

92-35

 

07/03

03-07

Exhibits

1. Sample of Initial Response Letter to Claimant who Inquires About A Lump-Sum Disability Payment

09/94

94-36

 

07/03

03-07

2. Sample Appealable Decision Letter for Claimant Who Request Lump-Sum Disability Payment

09/94

94-36

 

07/03

03-07

3. Sample Letter to Claimants Inquiring About Lump-Sum Payments for Schedule Awards

09/94

94-36

 

07/03

03-07

4. Sample Letter to Claimants Requesting Lump-Sum Payments for Schedule Awards

09/94

94-36

 

07/03

03-07

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1. Purpose and Scope. This chapter describes the provisions of 5 U.S.C. 8135(a) concerning the issue of lump-sum payments, and describes the limits on considering such payments in effect as of September 10, 1992 as a result of the Office's revised regulations at 20 CFR 10.311.

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2. Authority. Section 8135(a) provides that the liability of the United States for compensation to a beneficiary in the case of death or of permanent total or permanent partial disability may be discharged by a lump-sum payment equal to the present value of all future payments of compensation computed at four percent true discount compounded annually. A lump-sum payment may not be made, however, unless: (a) compensation to the beneficiary is less than $50 a month; or b) the beneficiary is or is about to become a non-resident of the United States; or c) the Secretary of Labor determines that it is for the best interest of the beneficiary.

However, in the revised regulations (originally published as 20 C.F.R § 10.311 and effective September 10, 1992), the Secretary determined, in the exercise of discretion afforded under section 8135(a), that lump-sum payments of wage-loss compensation will no longer be made. Thus, compensation which is based on loss of wages will be paid in periodic payments only. The implementing regulation, now found at 20 C.F.R. § 10.422(a), provides:

(a) In exercise of the discretion afforded by section 5 U.S.C. 8135(a), OWCP has determined that lump-sum payments will not be made to persons entitled to wage-loss benefits (that is, those payable under 5 U.S.C. 8105 and 8106). Therefore, when OWCP receives requests for lump-sum payments for wage-loss benefits, OWCP will not exercise further discretion in the matter. This determination is based on several factors, including:

(i) The purpose of the FECA, which is to replace lost wages;

(ii) The prudence of providing wage-loss benefits on a regular, recurring basis; and

(iii) The high cost associated with the long-term borrowing that is needed to pay out large lump sums.

However, a lump-sum payment may be made to an employee entitled to a schedule award under 5 U.S.C. 8107 where OWCP determines that such a payment is in the employee's best interest. Lump-sum payments of schedule awards generally will be considered in the employee's best interest only where the employee does not rely upon compensation payments as a substitute for lost wages (that is, the employee is working or is receiving annuity payments). An employee possesses no absolute right to a lump-sum payment of benefits payable under 5 U.S.C.8107.

It should be noted that upon remarriage prior to age 55, a widow or widower entitled to compensation under section 8133 shall be paid in accordance with section 8135(b) of the FECA. See details in paragraph 3(c) below.

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3. Requests for Lump-Sum Payments. When an application for a lump-sum payment is received, the Claims Examiner (CE) should first determine whether the benefit being paid the claimant or survivor is for compensation under sections 8105 or 8106; a schedule award under section 8107; survivor's benefits under section 8135; or, survivor's benefits under section 8133--as described in section 8135(b). The claimant should then be advised by the appropriate letter (see exhibits and details below) about the regulations and how they affect the question of lump-sum payments.

a. Wage Loss Benefits. A beneficiary who initially inquires about the availability of a lump-sum payment of his or her claim for wage-loss benefits should be advised that such lump-sum payments will not be considered. The letter should refer the claimant to the rules at 20 C.F.R. § 10.422, which state that "OWCP has determined that lump-sum payments will not be made . . ." and that "OWCP will not exercise further discretion in the matter." A sample letter to the claimant is provided as Exhibit 1 for inquiries concerning wage-loss benefits. No appeal rights should accompany the letter of explanation to the claimant.

However, should the claimant or representative persist in requesting a lump-sum award, a decision with appeal rights will be issued. This decision should simply refer to the regulation (20 C.F.R. § 10.422(a)) and deny consideration of the lump-sum request, as set forth in Exhibit 2.

b. Schedule Benefits. A lump-sum payment of schedule award benefits may still be made where the evidence shows that such a payment would be in the claimant's best interest. The regulations make it clear that there is no absolute right to a lump-sum payment of schedule benefits and every case must be considered on its individual merits using the best interest test. The regulations also state that a lump-sum payment of schedule benefits will not generally be considered in the claimant's best interest where the compensation payments are relied upon as a substitute for lost wages.

In cases where the claimant is back to work or is receiving an OPM annuity of a sufficient amount, the schedule award is not replacing the claimant's regular income which is necessary to meet his or her living needs, and consequently a lump-sum settlement may well be in his or her best interest. Any decision denying a request for a lump-sum payment of schedule benefits should include an analysis of the facts in the case considered when exercising discretion.

One factor precluding payment of a lump-sum schedule award is garnishment of compensation benefits. Although schedule award payments may be garnished, no future payment may be garnished. Because a lump sum award is a payment of future benefits, the party entitled to payments from garnishment would no longer be able receive these payments. Therefore, a claimant whose benefits are being garnished should not be awarded a lump sum for schedule benefits.

For administrative convenience, where the claimant is working or receiving an OPM annuity adequate to meet living expenses, the CE should advise the claimant of his or her eligibility for a lump-sum payment in cases where a schedule award is being paid. Payment of a lump sum for a schedule award should be considered as early in the period of the award as possible. When a schedule award letter is issued in a case meeting the above requirements, the CE should routinely notify the claimant of the lump-sum option and the commuted value of the remaining period of the award. A sample letter to the claimant is shown at Exhibit 3.

In a case where the claimant is receiving a schedule award and requests a lump-sum payment, yet it has not been established that the schedule award is not the claimant's source of regular income, the CE must obtain the necessary information. In a letter, the CE should advise the claimant of the best interest standard and request the information which would establish whether or not the claimant has another source of regular income sufficient to meet his or her living needs. Exhibit 4 provides a sample letter for this purpose.

The CE should further advise the claimant that if he or she elects a lump-sum payment of a schedule award, it will be paid at the four percent discount rate, and that it represents full and final compensation payment for the period of the award, even if he or she suffers a recurrence of total disability. The claimant must sign an agreement to this effect before any lump-sum award is issued. Exhibit 3.

c. Death Benefits. A beneficiary in a death case should be advised that the lump-sum payment to a spouse of a deceased employee may not exceed 60 months of compensation. Any such lump-sum award would also be subject to the proviso that the periodic payment of survivor's benefits was not the main source of income for the beneficiary.

However, a surviving spouse who remarries before age 55 is still entitled as a matter of right to a lump-sum payment equal to 24 months of compensation. There is no discretion in the application of section 8135(b) of the Act.

If applicable, the CE should also advise the claimant that a lump-sum payment to a widow or widower under section 8135(a) will not result in an increase in the amount of compensation paid to dependent children. On the other hand, in cases of a lump-sum payment under subparagraph (b), which relates to remarriage before age 55, the claimant should be advised in the letter from the CE that the lump-sum payment to the widow or widower does result in an increase in the periodic compensation payments to the dependent children.

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4. Calculating Lump-Sum Schedule Awards. The responsible CE will determine the commuted value of the schedule award using the Lump-Sum Schedule Award Calculator.

a. The CE will need the following information to correctly compute the amount of the lump-sum payment:

(1) Claimant's file number;

(2) Name of the claimant;

(3) Total period of the award;

(4) Total number of days of the award (including fraction of a day);

(5) Amount of four-week compensation being paid; and

(6) Actual commutation (start) date of the lump-sum award.

The CE will enter a commutation date that is at least one FULL, periodic roll cycle in the future from the date the actual lump-sum calculation is made. Once the CE has printed out a copy of the completed lump-sum calculation document, it must be reviewed and approved by both a SrCE and an SCE before the lump-sum payment agreement letter is issued to the claimant, regardless of the amount of the lump-sum award. (A journey-level CE (GS-12) may certify another journey-level CE's lump-sum award calculation document; however, an SCE must still approve the calculation, as the three signature requirement is mandatory.)

b. When recalculating a lump-sum award payment (due to an amended award, additional award for a different body part, etc.), the CE enters the original start date in the "Period of Award" field, but then keys in the appropriate new ending date (and fraction of day, if applicable). The CE must then subtract the total amount previously paid from this newly calculated lump-sum total to correctly obtain the additional amount due the claimant.

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5. Requests for Reconsideration of Lump-sum Decisions. If a petition for reconsideration is made of a lump-sum decision where the claimant is receiving benefits under section 8105 or 8106 and that decision was issued prior to September 10, 1992, the Office should reopen the case on its merits and issue a denial of the lump-sum request on the basis of the new regulation. This decision should recite the language of the regulation as set forth at 20 C.F.R. § 10.422(a). A sample decision for this purpose is provided as Exhibit 2. This action should be taken notwithstanding the timeliness of the request.

If a petition for reconsideration is made of a decision issued after September 10, 1992, such request should be handled in accordance with the Office's standard procedures for handling such petitions.

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Exhibit 1: Sample of Initial Response Letter to Claimant who Inquires About Lump-Sum Disability Payment

Dear CLAIMANT NAME:

I am writing in response to your inquiry concerning receipt of a lump-sum payment of wage-loss benefits in your case under the Federal Employees' Compensation Act (FECA).

Pursuant to regulations governing the administration of the FECA at 20 CFR 10.422, lump-sum payments of wage-loss compensation are no longer considered. The rule states that the Director has determined that lump-sum payments will no longer be made for benefits under sections 8105 and 8106. See 20 CFR 10.422(a).

Although no lump-sum payments are made under the FECA for wage-loss benefits, please note that monthly compensation benefits will continue for the period of your entitlement.

Sincerely,

CLAIMS EXAMINER

 

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Exhibit 2: Sample Appealable Decision Letter for Claimant Who Request Lump-sum Disability Payment

Dear CLAIMANT NAME:

Your request for a lump sum payment of your wage-loss benefits under section 8105/8106 of the Federal Employees' Compensation Act (FECA) has been received by this office. Regulations governing the administration of the FECA at 20 CFR 10.422(a) provide:

(1) In the exercise of the discretion afforded by section 8135(a), the Director has determined that lump-sum payments will no longer be made to individuals whose injury in the performance of duty as a federal employee has resulted in a loss of wage earning capacity. This determination is based on, among other factors:

(i) The fact that FECA is intended as a wage-loss replacement program;

(ii) The general advisability that such benefits be provided on a periodic basis; and

(iii) The high cost associated with the long-term borrowing that is necessary to pay out large lump sums.

(2) Accordingly, where applications for lump-sum payments for wage-loss benefits under section 8105 and 8106 are received, the Director will not exercise further discretion in the matter.

Based on the foregoing, your request for a lump-sum payment will not be considered and is hereby denied. Your appeal rights are attached.

Sincerely,

CLAIMS EXAMINER

Case Number:

FEDERAL EMPLOYEES' COMPENSATION ACT APPEAL RIGHTS

If you disagree with the attached decision, you have the right to request an appeal. If you wish to request an appeal, you should review these appeal rights carefullly and decide which appeal to request. There are 3 different types of appeal: HEARING (this includes either an Oral Hearing, or a Review of the Written Record), RECONSIDERATION, and ECAB REVIEW. YOU MAY ONLY REQUEST ONE TYPE OF APPEAL AT THIS TIME. Place an "X" on the attached form indicating which appeal you are requesting. Complete the information requested at the bottom of the form. Place the form on top of any material you are submitting. Then mail the form with attachments to the address listed for the type of appeal that you select. Always write the type of appeal you are requesting on the outside of the envelope ("HEARING REQUEST", or "ECAB REVIEW"). Your appeal rights are as follows:

1. HEARING: If your injury occured on or after July 4, 1966, and you have not requestedreconsideration, as described below, you may request a Hearing. To protect your right to a hearing, any request for a hearing must be made before any request for reconsideration by the District Office (U.S.C. 8124(b) (1)). Any hearing request must also be made in writing, within 30 calendar days after the date of this decision, as determined by the postmark of your letter.

(20. C.F.R. 10.616). There are two forms of hearing. You may request either one or the other, but not both.

a. One form of Hearing is an Oral Hearing. An informal oral hearing is conducted by a hearing representative at a location near your home. You may present oral testimony and written evidence in support of your claim. Any person authorized by you in writing may represent you at an oral hearing.

b. The other form of a Hearing is a Review of the Written Record. This is also conducted by a hearing representative. You may submit additional written evidence, which must be sent with your request for review. You will not be asked to attend or give oral testimony.

2. RECONSIDERATION: If you have additional evidence or legal argument that you believe will establish your claim, you may request, in writing, that OWCP reconsider this decision. The request must be made within on calendar year of the date of the decision, clearly state the grounds upon which reconsideration is being requested, and be accompanied by relevant evidence not previously submitted. This evidence might include medical reports, sworn statements, or a legal argument not previously made, which apply directly to the issue addressed by this decision.

In order to ensure that you receive an independent evaluation of the new evidence, persons other than those who made this determination will reconsider your case. (20 C.F.R. 10.605-610)

3. REVIEW BY THE EMPLOYEES' COMPENSATION APPEALS BOARD (ECAB): If you believe that all available evience that would establish your claim has already been submitted, you have the right to request review by teh ECAB (20 C.F.R. 10 625). The ECAB will review only the evidence received prior to the date to fhis decision (20 C.F.R. Part 501). Any request for review by the ECAB should be made within 90 days from the date of this decision. The ECAB may waive failure to file within 90 days if you request review within one year of the date of this decision and show a good reason for the delay.

If you request reconsideration or a hearing (either oral or review or the written record), OWCP will issue a decision that includes your right to further adminitrative review of that decision.

 

Case Number:
Employee:

APPEAL REQUEST FORM

If you decide to appeal this decision, read your Appeal Rights and these instructions carefully. Specify which procedure you request by checking one option below. Place this form on top of any materials specified below that you are submitting. Mail THIS FORM, along with any additional materials TO THE APPROPRIATE ADDRESS. YOU MAY REQUEST ONLY ONE TYPE OF APPEAL AT THIS TIME.

__________

HEARING - ORAL

__________

HEARING - REVIEW OF THE WRITTEN RECORD:
1) Submit this form within 30 calendar days of the date of the decision
2) You may submit additional written evidence with your request.

Write "HEARING REQUEST" on the outside of your envelope and mail it to:

 

Branch of Hearings and Review
Office of Workers' Compensation Programs
P.O. Box 37117
Washington, DC 20013-7117

__________

RECONSIDERATION:
1) Submit your request within 1 calendar year of the date of the decision.
2) You must state the grounds upon which reconsideration is being requested. Your request must include relevant new evidence or legal argument not previously made.

Write "RECONSIDERATION REQUEST" on the outside of your envelope and mail it to:

 

DOL DFEC Central Mailroom
P.O. Box 8300
London, KY 40742

__________

ECAB APPEAL:
1) Submit this form within 90 calendar days of the date of the decision.
2) No additional evidence after the date of the decision will be reviewed.
3) To expedite the processing of your ECAB appeal, you may include a completed copy of the AB 1 form used by ECAB to docket appeals available on othe Department of Laobr Web Site at www.dol.gov/ecab

Write "ECAB REVIEW" on the outside of your envelope and mail it to:

 

Employees' Compensation Appeals Board
200 Constitution Avenue NW, Room N-2609
Washington, DC 20210

SIGNATURE _____________________________ TODAY'S DATE ______________

PRINTED NAME _________________________ DECISION DATE _____________

ADDRESS ______________________________________ PHONE ___________

CITY ______________________ STATE _________________ ZIP ___________

 

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Exhibit 3: Sample Letter to Claimant Offering to Payoff Balance of Schedule Award

Dear CLAIMANT NAME:

I am writing in reference to the schedule award you ahve been granted by this office. As the enclosed award notice indicates, the award will run through DATE. If you wish, however, the amount of the remaining schedule may be paid in a lump sum if you are working or receiving benefits from the Office of Personnel Management or a comparable Federal retirement system. You may, of course, choose to receive the remaining schedule award in regular payments each 28 days as stated in the award notice.]

The law provides that the liability of the United States for compensation may be discharged by a payment equal to the present value of all future payments of compensation computed at a four percent true discount rate compounded annually. In your case this would be $0000.00, as of DATE. Additional benefits which may be awarded at a later date for temporary total disability or LWEC will not be considered in computing any lump-sum entitlement.

Any lump-sum payment will represent full and final compensation payment for the period of the award even if you suffer a recurrence of total disability. If you elect to receive your schedule award in this form, please sign the attached agreement and return it to this Office.

Sincerely,

CLAIMS EXAMINER

 

Date of Injury:

AGREEMENT TO ACCEPT LUMP SUM SETTLEMENT OF SCHEDULE AWARD

To proceed with my claim for a lump-sum settlement of my schedule award in accordance with 5 U.S.C. 8135(a), I wish to enter into the following agreement:

1. That I CLAIMANT NAME, agree to accept the sum of $0000.00 in payment of compensation for the remainder of the schedule award payable from (DATE) to (DATE).

2. That I understand and agree that payment of such lump sum will represent full and final settlement of my schedule award for the period noted above in connection with my injury of (DATE), and that no further monetary compensation benefits will be extended to me for the duration of the schedule award.

Signature __________________________________ Date _______________

 

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Exhibit 4: Sample Letter to Claimants Requesting Lump-sum Payments for Schedule Awards

Dear CLAIMANT NAME:

We have received your request for a lump-sum payment of your schedule award benefits under the Federal Employees' Compensation Act (FECA). Lump-sum payments are made at the discretion of the Director, based on a determination of whether such a payment would be in your best interest.

To show that such a payment would be in your best interest, you should submit evidence which shows that the schedule benefits are not a substitute for wages. Compensation payments are intended as income replacement. As such, it is generally advisable that those payments be made on a periodic basis, since this form of payment is consistent with the wages these benefits are designed to replace. As such, it is generally advisable that those payments be made on a periodic basis, since this form of payment is consistent with the wages these benefits are designed to replace. If you have returned to work or receive a retirement annuity from the Office of Personnel Management at a level which can meet your basic living needs, then a lump-sum payment may be in your best interest. In the event you wish to receive a lump-sum payment of your schedule award, please submit a signed statement indicating you have returned to work or currently receive income from OPM sufficient to meet your basic living expenses.

Please be advised that any lump-sum payment will represent full and final compensation payment for the period of the award even if you sustain a recurrence of total disability.

Sincerely,

CLAIMS EXAMINER

 

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