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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 5 – Other

2-0100

Introduction

2-0200

General Provisions of the Federal Employees Compensation Act

2-0300

Communications

2-0400

File Maintenance and Management

2-0401

Automated System Support for Case Actions

2-0402

Security and Prevention of Fraud and Abuse

2-0500

Conferences

2-1100

Feca Third Party Subrogation Guidelines

2-1200

Representatives' Services

2-1700

Special Act Cases

2-1701

Peace Corps Cases

2-1800

Housing and Vehicle Modifications

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Chapter 2-0100, Introduction

Paragraph and Subject

Date

Trans. No.

Table of Contents

07/04

04-05

1. Purpose and Scope

04/93

93-20

2. Organization of Material in FECA PM Part 2

07/04

04-05

3. Related Material

08/91

91-36

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1. Purpose and Scope. This part of the Federal Employees' Compensation Act Procedure Manual (FECA PM) contains a series of chapters and subchapters which establish policies, guidelines and procedures for adjudicating and managing claims under the FECA.

a. This chapter describes the structure of FECA PM Part 2.

b. Subsequent chapters in FECA PM Part 2 describe the laws, regulations, and procedures used to address FECA claims. The procedures are presented in sequential order beginning with routine provisions which apply to all claims and proceeding to provisions which apply to more complex situations requiring specialized action.

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2. Organization of Material in FECA PM Part 2.

a. Chapter 2-200 summarizes the major provisions of the FECA; identifies rules, regulations, FECA Program Memorandums, and other standing instructions that govern the actions and decisions of the Claims Examiner (CE); and provides a list of reference materials, decisions, and other guides which may be useful to the CE.

b. Chapters 2-400 through 2-500 present the "ground rules" for applying this body of knowledge to claims processing. They describe the rules for organizing and maintaining the documents in a case record; the recording of the status and location of the case record; the procedures for safeguarding case records and arranging for investigations; and the rules for holding informal conferences.

c. Chapters 2-600 through 2-814 describe the rules for developing and managing claims. Included are discussions of the five basic requirements for accepting claims; occupational illness; continuation of pay; computation of compensation payments; development and evaluation of medical evidence; reemployment; and review of claims where continuing benefits are being paid.

d. The remaining chapters in FECA PM Part 2 address specialized issues which pertain only to certain claims. These issues include computation of pay, dual benefits, involvement of third parties, representatives' fees, lump sum payments, reopening closed cases, disallowances, appeals, special act cases, and housing and vehicle modifications.

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3. Related Material. Other instructions affecting claims processing may be found in FECA Bulletins, where new procedures are first published pending inclusion in the PM, and FECA Circulars, which transmit information but do not require specific action. FECA Program Memorandums contain legal and medical policy determinations applicable to the adjudication and management of claims. These resources are described in detail in FECA PM 2-200.

Other parts of the FECA PM which the CE may consult include part 0, Overview; Part 1, Communications and Records; Part 3, Medical; Part 4, Special Case Procedures; Part 5, Benefit Payments; and Part 6, Debt Management. OWCP PM Chapter 1-400 addresses requests for information under the Privacy Act and the Freedom of Information Act.

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Chapter 2-0200, General Provisions of the FECA

Paragraph and Subject

Date

Trans. No.

Table of Contents

07/04

04-05

1. Purpose and Scope

08/91

91-36

2. General Provisions of the FECA

07/04

04-05

3. Responsibilities of the Claims Examiner

07/04

04-05

4. Reference Materials for Claims Examiners

07/04

04-05

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1. Purpose and Scope. This chapter is intended to serve as an introduction to the coverage and requirements of the Federal Employees' Compensation Act (FECA) as amended. It summarizes the general provisions of the Act and describes the responsibilities of the Claims Examiner (CE) in administering the FECA. The reference materials listed at the end of the chapter should be available to CEs in each district office.

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2. General Provisions of the FECA.

a. Definition of Injury. The term "injury" includes all diseases proximately caused by the employment as well as damage to or destruction of medical braces, artificial limbs and other prosthetic appliances. Aggravation of a pre-existing condition by the employment is also compensable.

b. Requirements for Eligibility. Each claim for compensation must be filed within three years of the date of injury, except where the official superior had actual knowledge of the injury within 30 days of its occurrence. The claimant must be a civil employee, and an injury must have resulted from the incident claimed. Finally, the injury or disease must have occurred in performance of the claimant's duties, and it must be causally related to factors of employment. See FECA PM 2-800 through 2-806.

c. Medical Care. An injured employee who meets the statutory conditions of coverage is entitled to all medical care which is required to cure, give relief, or reduce the degree or period of disability. No dollar maximum or time limitation is placed on medical care, which will be provided as long as the evidence indicates it is needed for the effects of the job-related injury. See FECA PM 2-810 and FECA PM Part 3.

d. Continuation of Pay. An employee who sustains a disabling job-related traumatic injury is entitled to continuation of regular pay (COP) for a period not to exceed 45 calendar days. To qualify for COP, the injured employee must file written notice of injury and claim for COP within 30 days of the injury. COP is not considered compensation and is subject to taxes and other payroll deductions. The employee must make separate claim for monetary compensation if the disability exceeds 45 days or results in any permanent disability. See FECA PM 2-807.

e. Compensation. Generally, for total disability an employee with no dependents is entitled to compensation equivalent to two-thirds of the weekly salary, while an employee with one or more dependents is entitled to three-fourths of the salary. Certain additional amounts, such as premium pay, night and Sunday differential, dirty work pay, and hazardous duty pay, may be included in salary. Overtime pay, however, cannot be included. A special formula is applied in cases where the employee is a part-time worker, an unpaid volunteer, a temporary employee, or a person working in a similar category. See FECA PM 2-900. Compensation payments are subject to garnishment for past due alimony and child support payments if the district office receives the proper documentation from a state agency or a court order that supports such action.

f. Vocational Rehabilitation. If the injured worker suffers a vocational handicap due to the injury and cannot resume usual employment, vocational rehabilitation services may be arranged to assist in training for work that the claimant can perform in the disabled condition. Rehabilitation services are usually provided by private rehabilitation counselors, who are supervised by the OWCP. Where rehabilitation is under way, the OWCP may provide a monthly maintenance allowance not to exceed $200, in addition to compensation for wage loss. See FECA PM 2-813 and OWCP PM Part 3.

g. Attendant Allowances. 20 C.F.R. 10.312 allows payment for services of an attendant where it is medically documented that the claimant requires assistance to care for personal needs such as bathing, dressing, eating, etc. Such services are paid as a medical expense under 5 U.S.C. 8103; are limited to $1500 per month under 5 U.S.C. 8111; and are paid directly to the provider of the services. See FECA PM 2-812.

h. Duration of Compensation. Compensation payments for total disability may continue as long as the medical evidence supports such payment. As with medical care, no cap is placed on the amount or the length of time for which compensation for total disability may be paid. See FECA PM 2-812.

i. Reemployment and Loss of Wage-Earning Capacity. When an injury results in partial disability, and the employee suffers a wage loss because of the disability, compensation may be paid for such loss of wage-earning capacity. See FECA PM 2-814.

j. Schedule Awards. The FECA also provides for payment of compensation for permanent loss or loss of use (either partial or total) of certain internal organs and members or functions of the body such as arms, legs, hands, feet, fingers, toes, eyes, and loss of hearing or loss of vision. Each extremity or function has been rated at a specific number of weeks of compensation which can be paid even though the employee returns to work at full salary. Where a serious disfigurement of the head, face, or neck results from a job-related injury, an award may also be made for such disfigurement, not to exceed $3,500. See FECA PM 2-808.

k. Survivor Benefits. In the event of death due to employment, the Act provides for funeral and burial expenses up to $800, and up to $200 for the administrative costs of terminating a decedent's status as a Federal employee. The law provides compensation for widows or widowers with no eligible children at the rate of 50 percent of the deceased employee's monthly salary, and for widows or widowers with eligible children at 45 percent. If a spouse survives, each child receives 15 percent, up to total of 30 percent. Where no spouse survives, the rate for the first child is 40 percent, plus 15 percent for each additional child, shared equally among all children. Monthly payments for all beneficiaries generally cannot exceed 75 percent of the employee's monthly pay rate. Other persons who may also qualify for benefits are dependent parents, brothers, sisters, grandparents, and grandchildren. See FECA PM 2-700.

l. Cost-of-Living Adjustments. In general, if compensation has been paid in either a disability or death case for over a year, Consumer Price Index (CPI) adjustments are made to compensation. See FECA PM 2-900.

m. Third Party Liability. Where an employee's compensable injury or death results from circumstances creating a legal liability on some party other than the United States, the cost of compensation and other benefits paid by the OWCP must be refunded from any settlement obtained. The OWCP will assist in obtaining the settlement; the law guarantees that a certain proportion of the settlement (after any attorney fees and costs are first deducted) may be retained even when the cost of compensation and other benefits exceeds the amount of the settlement. See FECA PM 2-1100.

n. Dual Benefits. The law provides that compensation may not be paid concurrently with certain benefits paid by other Federal agencies. In particular, compensation and a retirement annuity from OPM may not be paid for the same period except where OWCP is paying a schedule award, and veterans' benefits may be subject to offset as well. See FECA PM 2-1000.

o. Review of OWCP Decisions. Under 5 U.S.C. 8116(c) the FECA is a beneficiary's exclusive remedy for injury or death of a Federal civil employee in performance of duty. Although aggrieved parties on occasion do seek remedies outside the FECA through a Federal tort suit or other litigation, the existence of such litigation is not considered in adjudicating claims or taking other case actions. If an employee or the survivors disagree with a final determination of the OWCP, a hearing may be requested, where the claimant may present evidence in further support of the claim. Also, the claimant has the right to appeal to the Employees' Compensation Appeals Board, a separate entity of the U. S. Department of Labor, and OWCP may review a case on its own initiative. See FECA PM 2-1600 through 2-1602.

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3. Responsibilities of the Claims Examiner. The main tasks of the CE are to adjudicate claims; authorize benefits and set up compensation payments; manage individual cases, so that timely and proper actions are taken in each claim; and manage a case-load, so that all cases are handled promptly and effectively.

The CE is expected to exercise keen judgment, derived from experience, background, and acquired knowledge, tempered with compassion and common sense, in all claims processing. This exercise involves the ability to identify the issues, determine the additional evidence required, and make a decision once the evidence is assembled. Each case stands on its own merits and the decision in a given case must be based on the facts in evidence in the case file. The decision cannot be based on surmise, speculation, or unwarranted presumption.

The adjudication of a case on the evidence in the file does not preclude the use of precedents in arriving at a decision in a case. Precedents, as distinguished from questions of fact, are legal and medical principles, statements, or decisions rendered in other cases which may serve to define, explain, or justify the legal or medical determinations in like situations. When using precedent material in the adjudication of a case, the CE should place a memorandum in the case file citing the specific reference and principles relied upon, and the manner and extent to which such principle is applicable.

Some of the most useful precedents for FECA cases are the case rulings of the Employees' Compensation Appeals Board (ECAB), the highest appellate source for claims under the FECA. Opinions of the ECAB are first published separately on a case-by-case basis, then in book form. Other precedents are found in court decisions and in such publications as Arthur Larson's Workmen's Compensation Law.

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4. Reference Materials for Claims Examiners. Each district office should have a library which contains the following items for reference by CEs:

a. Federal Employees' Compensation Act, 5 U.S.C. 8101 et seq., as amended.

b. 20 C.F.R. Part 10 (Title 20, Code of Federal Regulations, 1.1 et seq.); US GPO.

c. FECA Procedure Manual, Part 0, Overview; Part 1, Communications and Records; Part 2, Claims; Part 3, Medical; Part 4, Special Case Procedures; Part 5, Benefit Payments; and Part 6, Debt Management.

d. FECA Program Memorandums, Bulletins, and Circulars.

e. Decisions of the Employees' Compensation Appeals Board, with Index (issued annually), including floppy discs containing published ECAB decisions, volumes 39 and following.

f. Summaries of ECAB decisions issued periodically by the National Office.

g. Black's Law Dictionary, West Publishing Co., St. Paul.

h. Workmen's Compensation Law, Arthur Larson, Matthew Bender Publishing Co., Washington, with all updates.

i. Dorland's Illustrated Medical Dictionary, W.B. Saunders Co., Philadelphia.

j. Current edition of the AMA Guides to the Evaluation of Permanent Impairment. A copy of prior editions should also be retained.

k. Current edition of The Merck Manual, Merck & Co., Rahway, N. J.

l. Current Directory of Medical Specialists, published by Marquis Who's Who, Chicago (hard copy for reference, in addition to the version contained in the automated Physician Directory System).

m. Current directory of the American Medical Association for each state within the district office's jurisdiction.

n. Current directory of the American Psychological Association.

o. Current directory of the American Chiropractic Association.

p. Current edition of the Dictionary of Occupational Titles, and supplements.

q. The most recent accountability review report.

r. Road maps or a road atlas covering the district office's geographical jurisdiction.

s. Telephone directories for prominent areas in the district office's jurisdiction.

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Chapter 2-0300, Communications

Paragraph and Subject

Date

Trans. No.

Table of Contents

02/00

00-03

1. Purpose and Scope

02/00

00-03

2. Policy

02/00

00-03

3. Responsibilities

02/00

00-03

4. Regular Correspondence

02/00

00-03

5. Priority Correspondence

02/00

00-03

6. Controlled Correspondence

02/00

00-03

7. Telephone Calls

02/00

00-03

8. Translations

02/00

00-03

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1. Purpose and Scope. This chapter discusses preparation and release of letters, including priority and controlled correspondence, and responses to telephone calls. It also addresses how to obtain translations.

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2. Policy. Claims staff should respond fully to all written and telephoned inquiries. Responses should be stated clearly and politely, and given in a timely manner. Resources for preparing and releasing letters include the DOL Correspondence Guide (DLMS Handbook 1-200), which contains basic information for those who prepare or review correspondence, and the U.S. Government Printing Office (GPO) Style Manual and Word Division Supplement.

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3. Responsibilities. This paragraph describes the guidelines for providing information to employees, employing agency personnel, and other interested parties.

a. Privacy Act and Freedom of Information Act. All persons who prepare letters and provide information by telephone must be familiar with their responsibilities under the Privacy Act and Freedom of Information Act (FOIA). OWCP PM 1-0400 discusses both laws.

b. Format and Grammar. All persons who prepare letters should review them for content, format, punctuation and spelling before releasing them or forwarding them for signature. The signer should also review these items.

c. Time Frames. The District Director (DD) is responsible for ensuring that all letters and telephone calls are answered within established time frames (see FECA PM 2-0400 and paragraph 6 below).

d. Integrity of Form Letters. For legal reasons, the texts of all CA- prefixed letters must be uniform across all district offices. Also, OWCP is responsible to the Office of Management and Budget (OMB) for the text of letters cleared by that agency. Such letters must include the OMB clearance number and public burden notice.

Therefore, the DD must ensure that any locally printed or generated letters bearing a CA- number conform exactly to the text authorized by the National Office and that they contain the OMB clearance number and date, if any.

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4. Regular Correspondence. This paragraph outlines where form letters can be found, what signature levels and signature formats are needed, and when copies of letters must be sent.

a. Form Letters. Forms can be found in several places:

(1) The Forms Correspondence (FC) option in the Sequent system allows the user to generate many form letters, and to obtain sample copies of these letters.

(2) The Letter Generator System (LGS) also contains a variety of form letters. Several indexes list the letters available.

(3) A few forms are available in pre-printed versions only.

b. Signature Level. Claims Examiners (CEs) may release routine correspondence over their own signatures, and they may sign some formal decisions (see FECA PM 2-1400). Most other formal decisions are signed by Senior Claims Examiners. Controlled correspondence is prepared for the signature of the DD or Regional Director (RD).

c. Signature Format. Both a given and family name should appear. For example, June Smith, John M. Smith and J. Milton Smith are all correct. Also, J. Smith or J. M. Smith may be used if the signer notes "Mr." or "Ms." before the name. Signature stamps may be used only by their owners.

d. Copies of Letters to Employing Agencies. The agency should receive copies of all letters addressing substantive developments in the case, even if the claimant no longer works for the agency. This rule applies no matter how much time has passed since the claimant left the agency's employ (except, of course, where the agency no longer exists).

(1) Definition. Substantive actions are those which actually or potentially affect the level of benefits paid. They include formal decisions, overpayment determinations, letters concerning reemployment, changes in work tolerance limitations, responses to requests for surgery or purchase of major medical equipment, referrals for medical examination, and referrals for vocational rehabilitation services. Substantive actions do not, however, include routine inquiries such as Forms CA-1032, CA-1615, and CA-1617.

It is not necessary to send the agency copies of material which does not bear on the overall payment status of the claim. For instance, agencies need not be sent copies of letters returning medical bills for additional information, two-way memos asking for one or two items of information as a follow-up to a previous request, or copies of letters transmitting information contained in the case file.

(2) Addresses. Letters to the U.S. Postal Service should usually be sent to the Management Sectional Center (MSC), and letters to other agencies should be sent to the address shown on Form CA-1 or CA-2 as the reporting office. The employing agency should resolve any internal disagreement as to which party should receive the copy. No more than one copy of each document need be sent to the agency.

e. Copies of Letters to Legal Representatives. Where the employee has an attorney or other legal representative, the original of any letter to the claimant should be sent to that person, with a copy to the claimant. Similarly, where the claimant is sent a copy of a letter, the attorney or other representative should receive a copy as well. Form CA-900 is used for this purpose.

(1) Supplemental Name File. Upon receipt of a signed statement from a claimant appointing a representative, the CE will add the person's name and address to the supplemental name file in the Sequent system. These entries are made through option 13 of the Case Management subsystem, using code A for attorneys and code R for other legal representatives.

(2) Generation of Form CA-900. If the name of an attorney or representative appears in the supplemental name file, an original and a file copy of Form CA-900 will automatically print with each FC letter selected. When composing a letter using Word or LGS, the CE must also create a Form CA-900.

(3) Withdrawal of Authorization. Should the claimant withdraw the authorization for the representative, the CE should remove the representative's name and address from the supplemental name file.

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5. Priority Correspondence. This paragraph addresses letters received directly by the district office (DO) from Members of Congress, heads of employee organizations, and other parties as defined in FECA PM Chapter 1-300.2a.

a. Responsibility of DO. DO staff should prepare replies to all case-specific letters except those involving:

(1) A legislative matter, a substantive program matter, or a question of policy or interpretation of policy for which no guidelines are published, whether or not a specific case is referenced. Such letters should be sent to the National Office (NO) for reply.

(2) A case in another DO. The letter should be sent to the DO that has jurisdiction.

b. Preparation of Responses.

(1) Format. All letters should be prepared with one-inch margins on both left and right. The text should appear in block format against the left margin.

(2) Standard Text. Certain themes which sometimes arise in letters from claimants and their advocates should be addressed as follows:

(a) Retirement Program. An explanation that OWCP is not a retirement program should be included in reply to any letter that suggests otherwise.

(b) Formal Decision. If a formal decision is being issued, the reply should note that if the employee disagrees with the decision, he or she may pursue the courses of appeal described in the decision.

(3) Signature Level. DDs or RDs are to sign all Congressional responses. This duty may not be delegated to lower-level employees.

(4) Tracking. Inquiries are monitored using the Priority Correspondence tracking function in Sequent, or on a separate system established for priority letters referred by the NO.

c. Decisions and Other Case Actions.

(1) Other Case Actions. Development of the claim, authorization of medical care, and payment of compensation should not be delayed while replies to correspondence are being prepared.

(2) Release of Decisions. Formal decisions should be released before or concurrently with the reply to the priority correspondence.

(3) Follow-up Replies. The DD should ensure that any further reply promised in the initial response is in fact prepared within the time frame stated. If a further reply has been promised "when the decision is made", the DD should ensure that the case is "flagged".

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6. Controlled Correspondence. This paragraph addresses letters referred by the NO to the DO for response. Replies and case actions are handled as described in paragraphs 5b and 5c above.

a. Definition. Controlled correspondence includes letters addressed to the Secretary of Labor or Assistant Secretary for ESA which require responses according to DOL policy (see DLMS Handbook 1-200). It also includes any letter so designated by the Office of the Assistant Secretary for the Employment Standards Administration or the Office of the Director for Workers' Compensation. Most letters from Congressional offices are referred to the DO for a direct response, while letters from other parties are sent to the DO with a request that a draft reply be sent to the NO.

b. Letters with Direct Responses.

(1) Referral by NO. The NO faxes the inquiry, with attachments, to the owning DO along with the control number and the due date.

(2) Copies. When the reply is released:

(a) A signed and dated copy (showing the priority control number) should be faxed to the NO. A copy of the incoming letter need not be sent.

(b) Copies of the incoming letter and any attachments should be placed in the case file.

The DO is to maintain a separate reading file of responses.

c. Letters with Draft Responses. The NO e-mails the owning DO with a request for the specific information needed and the due date. After receiving the reply, NO staff prepare the response to the inquirer.

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7. Telephone Calls. This paragraph addresses how to handle incoming telephone calls.

a. Received in DO.

(1) Priority Inquiries. These inquiries are defined in paragraph 5 above. A response is required within two work days. If a full reply cannot be given within that time, the call should be acknowledged and a full reply must be provided within 10 work days.

(2) Routine Inquiries. A Form CA-110 (paper or automated version) is used to document all telephone inquiries where substantive information is exchanged.

If the information requested cannot be supplied without a return call, the CA-110 will be referred to the responsible CE for reply.

b. Received in NO.

(1) Priority Inquiries. When time frames for reply are very short, NO staff will request status reports from DO staff by telephone. Such requests are to be answered by telephone or fax within three work days to ensure that the inquiry is answered by the due date.

(2) Routine Inquiries. NO staff refer routine inquiries to the DO handling the case.

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8. Translations. This paragraph describes how to obtain translations of material in another language.

a. Requesting Translations. It is best to obtain translations locally. If this is not possible, the original and one copy of the correspondence, along with a brief memorandum requesting translation, should be sent to:

Administrative Officer
Office of Workers' Compensation Programs
200 Constitution Avenue, N.W., Room S-3524
Washington, D.C. 20210

Or, the request may be faxed. The original request will be returned to the DO for inclusion in the case file when the translation is completed.

b. Contents of Memorandum. The memorandum requesting translation must show the date of the request, the name of the employee, the case file number, and a brief description of the material requiring translation.

c. Copies of Memorandum. The original of the memorandum is attached to the material to be translated. A copy of the memorandum, along with a copy of the material to be translated, should remain in the case file.

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Chapter 2-0400, File Maintenance and Management

Paragraph and Subject

Date

Trans. No.

Table of Contents

10/98

99-02

1. Purpose and Scope

02/00

00-03

2. Jurisdiction of Cases

02/00

00-03

3. Material Loaned from Other Agencies

02/00

00-03

4. Filing Material in Cases

02/00

00-03

5. Maintaining Files

02/00

00-03

6. Requesting Files

02/00

00-03

7. Incoming and Outgoing Cases

02/00

00-03

8. Doubling Case Files

02/00

00-03

9. Custody and Storage of Files

02/00

00-03

10. Case Transfers and Loans

02/00

00-03

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1. Purpose and Scope. This chapter outlines how to maintain FECA paper case files. It addresses jurisdiction of cases, assembling documents in a file, routing files within the office, doubling files, and transferring files to other district offices.

FECA PM Part 1 discusses the responsibilities of Mail and File staff in performing these functions. PM Chapter 2-0401 covers maintenance of data in the DFEC automated system, while PM Chapter 2-0402 discusses security of files.

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2. Jurisdiction of Files. This paragraph describes case assignment in general.

a. General Jurisdiction Cases. The district offices (DOs) adjudicate all cases where the employee's duty station is located within the geographical area served by the DO. The boundaries of the DOs are defined in FECA PM 1-0200.

After adjudication, the claimant's home address determines where further processing will occur. The only exception to this policy is where the claimant lives much closer to the DO serving the area of the duty station than to the DO serving the area of residence.

b. Special Jurisdiction Cases. Certain kinds of cases are developed and adjudicated only in the National Operations Office (NOO), District 25, and most of them remain there for management (see FECA PM Chapter 1-0200a and b). Also, a few types of cases are developed in the DO and referred to the NOO for adjudication (see FECA PM Chapter 1-0200c).

Cases listed in FECA PM Chapter 1-0200a and b are to be sent without processing (other than notices of transfer) to the NOO, and inquiries about these cases should be referred to the NOO.

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3. Material Loaned from Other Agencies. This paragraph defines the responsibilities of Claims Examiners (CEs) with respect to material loaned by other Federal agencies or other sources to assist in adjudicating and managing claims. (PM Chapter 2-0402 explains the use of investigative reports.)

a. Inclusion in Case File. If the CE plans to base any decision or action on the loaned material , or if it will possibly aid in resolving an issue in the future, the CE must copy the material and place it in the file, then return the original as soon as possible.

b. Refusal of Permission by Agency. An agency which initially refuses permission to copy will often grant it if the CE explains the need for documentation in a letter. If the agency does not allow its material to be copied, the CE may not use it, since the case file must contain full documentation for any decision.

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4. Filing Material in Cases. This paragraph describes the mechanics of maintaining material in case files.

a. Contents of Files. Each case file contains a Form CA-800, Non-Fatal Case Summary, or Form CA-105, Fatal Case Summary, which provides a concise record of case actions; a number of documents filed on a spindle which support those actions; and loose documents on which action is pending.

b. Filing Order. In general, documents are added to the file chronologically as they arrive. Claim forms and notices of injury and death are filed as follows:

(1) In a disability case, Form CA-1 or CA-2 should be placed under the other documents in the case file. If a Form CA-7 is received, it is placed under Form CA-1 or CA-2.

(2) In a death case, Form CA-5b should be placed under the other documents. Form CA-5, the various certificates (birth, marriage, divorce and death), and Form CA-6 are then filed in order from bottom to top.

(3) If a disability case becomes a death case, all material related to the death claim should be filed on a separate spindle, beginning with Forms CA-5b and CA-5, the certificates, and Form CA-6. Forms CA-24 and other documents relating to benefit payment changes may be placed on a separate spindle. The Form CA-800 from the disability case may be added to the old spindle.

c. Filing Down. After reviewing or completing action on loose documents, the CE should initial and date the upper right corner, punch a hole in the center of the document, and place the material on the spindle.

(1) Forms returned by the recipient with information written on the reverse, such as CA-1027, should be placed face down so that the information is uppermost.

(2) Documents which arrive stapled together should be separated before they are placed on the spindle, so that they can be easily reviewed in the future.

(3) Legal-sized pages should be folded at the bottom to letter size.

d. Copies. Mail is filed by date of receipt from bottom to top. If a duplicate copy (for instance, of a medical report or claim form) is received, the CE may discard it. However, if the second copy is sent with a cover letter, the CE should retain it so that the file will show that the writer of the letter included the evidence as stated.

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5. Maintaining Files. This paragraph discusses the need to protect files against loss and damage and to keep them in an orderly, readable condition for ease of review.

a. Damaged Documents. Torn documents should be repaired with transparent tape. If it is necessary to photocopy damaged documents to have legible copies in file, the originals should be retained. To prevent claims forms and notices of injury from being detached from the spindle, stiff paper backing may be placed at the bottom of the file.

b. Damaged Case Jackets. If a folder is damaged beyond repair with transparent tape, the entire case file should be sent to the Mail Room for repair or replacement.

c. Dividing Files. If the amount of material in a case starts to exceed the physical capacity of the file, the CE should send the file to the Mail Room with a short memo asking that the file be divided into "A" and "B" parts (see FECA PM 1-500.5).

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6. Requesting Files. This paragraph describes how to obtain files not in the CE's location.

a. Within the DO. Individual files within the DO may be requested on Form CA-33, Case File Release or Call Request, according to the instructions on the form. Mail and File staff will search for the case on a priority or regular basis, depending on the reason for the request. (If no reason is given, a regular search will be made.)

b. Outside the DO. To request a case file from another office, the CE must complete Section A, Items 1 through 9, of Form CA-58, Case File Transfer, and forward the original to the ADD or designee. If the request is to be handled on a priority basis, the reason for doing so must be stated in Item 8. The Mail and File Unit will request the case.

c. Telephone Requests. Where a telephone request is necessary and a case file cannot be located, Mail and File staff will prepare a From CA-33 on the basis of the telephone request.

d. Lost Files. If a case file cannot be located within a reasonable period of time, it may be necessary to reconstruct it. To do so, the CE must write to the claimant, the employing agency, and all known medical providers and ask them to submit copies of all material in their possession which relates to the claim.

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7. Incoming and Outgoing Cases. This paragraph describes the actions which CEs should take on cases and mail newly delivered to their locations and on cases where their work is completed.

a. Incoming Cases. The CE should screen incoming cases to identify those requiring priority action and dispose of any which have either been misrouted or which are quickly and easily handled. Pending cases should also be screened on a daily basis to review newly drop-filed mail.

b. Outgoing Cases.

(1) Cases requiring further action in other parts of the DO should be routed to their new location(s), with the CE's location shown last if the CE will need to review the case after the other actions are taken.

(2) Cases not requiring further action should be sent to the file room. All loose mail must be filed down, and any entries to the summary form must be completed.

(a) For open cases, a call-up must be keyed in the automated system.

(b) For closed cases, the proper closure code must be entered into the automated system (see FECA PM 2-0401 for a list of codes).

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8. Doubling Case Files. This paragraph describes the process of doubling cases from the claims standpoint. The mechanics of doubling are addressed in FECA PM Chapter 1-500.4.

a. Definition. Doubling is the combination of two or more case files. It occurs when an employee has sustained more than one injury and it is necessary to combine all of the records in one case folder. The case records are kept separately but travel under one claim number, which is known as the "master file". The subsidiary and master files are cross-referenced in the FECS data base.

b. Responsibilities. The responsible CE reviews newly created cases for potential doubling and making doubling recommendations. The District Director or designee(s) approve case doublings and settle any disputes about whether cases should be doubled and which case file number should be the master file number. Unit claims managers may be designated reviewers. Mail Room staff combine the records, and ADP staff update the automated system to show master and subsidiary case file numbers.

c. When to Double Cases. Cases should be doubled when correct adjudication of the issues depends on frequent cross-reference between files. Cases meeting one of the following tests must be doubled:

(1) A new injury case is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body. For instance, a claimant with an existing case for a back strain submits a new claim for a herniated lumbar disc.

(2) Two or more separate injuries (not recurrences) have occurred on the same date.

(3) Adjudication or other processing will require frequent reference to a case which does not involve a similar condition or the same part of the body. For instance, an employee with an existing claim for carpal tunnel syndrome files a new claim for a mental condition which has overlapping periods of disability.

Cases should be doubled as soon as the need to do so becomes apparent.

d. When to Avoid Doubling Cases. If only a few cross- references will be needed, the cases should not be doubled.

(1) Cases of this nature include those where:

(a) Problems arise in distinguishing the cases for bill pay and/or mail purposes, such as when the same physician is treating the claimant for more than one injury;

(b) Periods of disability overlap; and

(c) A single individual should handle the cases to ensure consistency and fairness.

(2) If cases are not doubled and cross-reference is needed, and no CASE632 report appears in the file, the CE should note related cases on Form CA-18. Medical and other evidence from other injuries may be copied, annotated to show the source, and added to the file. This process should mainly be used in cases closed for over two years that were accepted for minor conditions, and short-form closures over two years old.

e. Doubling New Cases. When a new case is created, the CASE632 report, "Claimant New and Prior Injuries Report", is produced. This report identifies cases which already exist for the employee in question. Mail Room staff will forward any new case for which a CASE632 is produced, even if it is closed short-form, to the responsible CE.

(1) The CE will examine the case (and the other cases listed on the report) and decide whether doubling is needed. If so, the CASE632 should be filed just above the CA-1 or CA-2.

(2) The CE should send a request for case doubling to the designated reviewer, along with the cases. This request, which may be made by informal(handwritten) memo, should show the case file numbers, the master case file number, the reason for doubling, the CE's initials, and the date.

(3) If the reviewer approves the doubling, he or she should send the cases to the Mail Room.

f. Doubling Established Cases. If the CE notes, while examining a case file, that other injuries may bear on the case at hand, he or she should request the other case file(s). If the cases meet one of the criteria noted in subparagraph a above, the CE should request that they be doubled as described in subparagraph e(2) above. The reviewer will send approved requests to the Mail Room.

g. File Number. The master case file number is usually the oldest (by file number) case in the office. The CE responsible for the master case file is also responsible for subsidiary files. To avoid changes in CE assignments when a new claim is filed, any related case(s) received at a later date will be doubled into the existing master case file.

h. Subsidiary Cases. These case are not necessarily inactive and may be in an open status. If a subsidiary case is open, it should also have appropriate call-ups in place.

i. Advising the Parties. When case files are doubled, the responsible CE should so advise the claimant, the employer, the treating physician, the authorized representative, and other interested parties in writing. The letters should state which file number to use for inquiries, medical bills, and compensation claims.

j. Payment of Bills. If the accepted conditions in doubled cases are the same, the employing agency is the same, and no third party is involved, bills should be paid using the master file number (if that case is open).

However, where accepted conditions among doubled cases are dissimilar, or employers have changed, or third party liability is involved, bill payments are to be made under the appropriate case file number.

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9. Custody and Storage of Files. This paragraph discusses how CEs are to store cases assigned to them. FECA PM Chapter 1-0500 addresses custody and storage of case files in general.

a. Location. CEs should return files to designated shelves in the claims units at the end of each work day. Files are not to be stored in desk drawers, on the floor, or on tables or window sills, etc.

b. Removal of Files. No one may remove a case file from the premises of the DO without the prior written approval of the District Director (DD), ADD, or their designee. The approval should take the form of a memorandum to the file, signed by one of these persons, which states the case file number, claimant's name, date of injury, name of the person taking the file, the destination, the date, and the reason for removing the file from the premises.

The memorandum should be prepared in triplicate, with the original to the case file jacket, a copy to the person removing the file, and a copy to the Mail and File Unit. The case jacket, along with the Form CA-800 or Form CA-105 and the memo, should remain in the DO in a Contents-Out or similarly-designated file until the contents are returned. The location of the jacket should be noted in the automated system.

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10. Case Transfers and Loans. This paragraph describes how case files are transferred and loaned and how mail is forwarded from one DO to another.

a. Reasons for Transfer and Loan. Transfers occur most often because the claimant or beneficiary has moved to another jurisdiction. Loans occur most often between the DOs and the National Office (NO). The NO may request cases for review by the Director of OWCP, the Director for FEC, the Employees' Compensation Appeals Board (ECAB), the Branch of Hearings and Review (H&R), or other OWCP staff.

b. Review by ADD or Designee. Individuals with authority to transfer or loan cases should determine whether:

(1) The case has been adjudicated (unless the nature of the claim--e.g., Agent Orange exposure--brings it under the jurisdiction of another DO);

(2) All pending actions have been taken, all correspondence has been answered, and all mail is filed down on the spindle in order of receipt;

(3) The case file jacket is in good condition; and

(4) Regular payment information has been entered into the Automated Compensation Payment System (ACPS) if necessary so the override mode need not be used. If an override cannot be removed, a memorandum should appear in the file explaining the need for it.

If the claimant has moved, the ACPS and Case Management File (CMF) records should be changed. (However, if the claimant is receiving ACPS payments by EFT, the ACPS address should not be changed.)

c. Procedures for Transfer. When the DO receives a Form CA-58 requesting a case, Mail and File staff will locate the file, attach the Form CA-58 and send it to the ADD or designee. If the case meets the criteria stated above:

(1) The ADD or designee will authorize the transfer by completing items 10b and 10c of Form CA-58;

(2) The Systems Manager or designee will transmit the electronic records, including ACPS records, Bill Processing System records, and any health insurance enrollment or debt records [through the Debt Management System (DMS)].

(3) Mail and File staff will notify the claimant, the employing agency, and other interested parties of the transfer; change the location code to reflect the transfer; and send the file by certified mail to the requesting office.

d. Procedures for Loan. Cases docketed by the ECAB or requested by H&R are requested over the automated system, and the box labeled "ADP" in Item 9 of Form CA-58 should be checked. Other requests may be made verbally, by e-mail, or by Form CA-58.

(1) The reason for the loan and the name of the requestor should be stated in Items 8-9 on Form CA-58.

(2) Cases should be mailed to 200 Constitution Avenue N.W., Room N-4421, Washington, D.C. 20210. Use of this address will ensure that the cases are routed through the NO database.

(3) The electronic records should always be sent for cases requested by the ECAB or H&R. They will not include the health insurance enrollment and/or the DMS record, if any. These records will remain in the DO.

e. Receipt of File. When the file arrives in the requesting DO, Mail Room staff will log the case into the database and send it, with Form CA-58 attached, to the person who requested it.

(1) Transfer. If the file will remain permanently at the requesting DO, the CE must ensure that case file information, such as mailing and check addresses, is correctly recorded in the ACPS and CMF before filing down Form CA-58.

(2) Loan. Cases on loan should be returned as soon as possible. If necessary, material from the borrowed file may be photocopied.

f. Transferring Mail. Mail always follows the case file, even when the file has been loaned temporarily to another office. All such mail will be collected in the Mail Room and sent to the various owning DOs on a daily basis.

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Chapter 2-0401, Automated System Support for Case Actions

Paragraph and Subject

Date

Trans. No.

Table of Contents

01/01

01-03

 

09/09

09-06

1. Purpose and Scope

01/98

98-04

 

09/09

09-06

2. Responsibilities

06/92

92-26

 

09/09

09-06

3. System Components

06/92

92-26

 

09/09

09-06

4. System Capabilities

06/92

92-26

 

06/94

94-26

 

09/09

09-06

5. Status Changes

06/92

92-26

 

09/09

09-06

6. Definitions of Adjudication Status Codes

06/92

92-26

 

09/09

09-06

7. Definitions of Pay Status Codes

12/97

98-03

 

09/09

09-06

8. Assignment of Status Codes

06/92

92-26

 

12/97

98-03

 

09/09

09-06

9. Inquiries

06/92

92-26

 

09/09

09-06

10. ICD-9 Codes

06/96

96-22

 

09/09

09-06

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1. Purpose and Scope. This chapter describes the Federal Employees' Case Management System insofar as it records and supports Claims Examiners' (CEs') actions and outlines their responsibilities for maintaining an accurate data base and managing a case load using the automated system. The Disability Tracking System is addressed in FECA PM 2-0601.

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2. Responsibilities. The CE has primary responsibility for keeping the automated Case Management File (CMF) accurate, and may use the various capabilities of the system to monitor and assist case processing.

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3. System Components. The case management system has multiple subsystems with which the CEs interact. Some of the subsystems are:

a. The Compensation Management System. The CE's responsibilities include providing accurate and detailed payment set-ups for entry into the system.

b. The Correspondence Management System. The CE uses this system to generate letters to claimants, employing agencies, and other interested parties.

c. The Case Management System, including the imaged case record. This program includes a query function, which allows CEs to obtain information about specific cases, and it includes other sub-systems which allow CEs to enter new data.

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4. System Capabilities.

a. When an injury report or claim for occupational disease is received in a district office, a record is created in the Case Management System and an acknowledgement to the agency and the claimant is generated automatically. The system controls number assignments and edits entries for duplication of date and other identifiable errors.

b. CEs are required to record their adjudicatory actions in the Case Management System, which should contain current status of each case and the effective date of that status. Other data recorded in the Case Management System include third party status and rehabilitation indicators. Definitions of adjudication and pay status codes appear in paragraphs 6 and 7 below.

c. Reminders may be set, allowing CEs to diary cases for further review and action.

d. Responsible Claims Examiner (RCE) is shown in the Case Management System. This shows who is currently managing the case.

e. Incoming and pending mail may be viewed in the imaged case file. Priority correspondence is tracked in the system and assigned automatically for some correspondence types or upon review as assigned by the CE.

f. Reports can be produced by managers and CEs using the automated reporting system. These reports are used to query pending cases in need of action and for case management purposes.

g. Addresses for frequent correspondents other than the claimant or beneficiary are maintained in the Case Management System. Entry of names and addresses of authorized attorneys and other legal representatives is required; entry of other names and addresses is optional. By entry of these addresses into the system, the CE is able to pull them into correspondence as needed.

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5. Status Changes. The Case Management System contains a pair of two-character code fields for recording the status of the case file. Adjudication status codes are used to record acceptances and denials of benefits, and case or pay status codes are used to track the level of payments authorized on a case. CEs and claims supervisors have sole responsibility for ensuring that these codes are kept accurate and current. Since office performance is largely measured by the dates these codes are assigned and by the proportion of cases in various statuses to total cases in the office, the integrity of code use is extremely important.

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6. Definitions of Adjudication Status Codes. With the exception of noncontroverted no-time-lost cases discussed in paragraph 8, the adjudication status code field may not be filled until the initial acceptance or denial of the case by the responsible CE. Assignment of any of the codes beginning with "D" should reflect a formal decision with appeal rights.

Eighteen (18) two-character adjudication status codes are available in the system. Brief definitions are given below.

Acceptances

AM: Condition accepted as compensable. If open, entitlement to medical benefits only.

AL: Condition accepted and some period of disability supported by medical evidence. Leave elected or used awaiting decision.

AC: Condition accepted as compensable; some period of entitlement to continue pay accepted.

AD: Condition accepted as compensable; some period of entitlement to compensation is or was accepted; not being placed on periodic roll.

AP: Condition accepted as compensable; is or was entitled to compensation on the periodic roll.

AF: Death accepted as work-related; some beneficiary is or was entitled to benefits.

AT: Condition accepted as work-related but claimant entitled only to medical benefits.

AO: Case previously approved; no benefits payable. May be used to identify a case with a third party credit being absorbed in conjunction with MC case status.

Denials-Any denial code prevents entry of payment data in the automated compensation payment system.

DO: Disallowed pending.

D1: Denied as not timely filed, without entitlement to medical benefits (use AT for pre-1974 cases where monetary benefits are denied and medical benefits are payable). Do not use in COP time denials.

D2: Denied; claimant not a civil employee.

D3: Denied; fact of injury not established.

D4: Denied; not in performance of duty.

D5: Denied; causal relationship not established or disability due to injury has ceased.

D7: Remanded by ECAB.

D8: Remanded by H&R.

D9: Request for reconsideration pending.

SU: Consideration for benefits suspended for failure to report for an Office-directed medical exam. This is also used when an initial claim is withdrawn. Use with code CL.

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7. Definitions of Pay Status Codes. Every case file acquires a pay status code (or case status code) when it is created and retains such a status throughout its existence. Before the case is adjudicated, the pay status code reflects whether it has been reviewed, and afterwards it reflects whether and what benefits are being paid or are payable. There are nineteen (19) two-character pay status codes in the system. Only certain codes are compatible with payment through the Compensation Management System and allow for bill payment. Brief definitions are indicated below.

UN: Case created, not reviewed. This status is automatically generated at the time of case create, and should not be changed unless the case has been reviewed by a CE.

UD: Under development. Used whenever further development is needed before pay status or closure status can be assigned. Assigned without an adjudication code, after initial review if there is not enough evidence for acceptance or denial. Assigned with DO if a case in D_ status is remanded for development by the Employees' Compensation Appeals Board (ECAB) or Branch of Hearings and Review (H&R), or is under reconsideration.

MC: Entitled for the time being to medical treatment only. Only used in combination with "A_" adjudication code.

DR: Entitled to payment on daily roll; permits payment through the compensation management system. Used for finite period of wage loss or repurchase of leave; not used for schedule award paid in lump sum or for initial or final supplemental payment where the case is or will be on the periodic roll.

PR: Entitled to payment on periodic roll. Used with AP.

PN: Entitled to payment on periodic roll; formally determined to have no wage earning-capacity or re-employment potential for indefinite future. Used with AP.

PW: Entitled to payment on periodic roll at a reduced rate, reflecting a partial wage-earning capacity or actual earnings. Used with AP.

PS: Entitled to payment for schedule award, whether periodic or when a single schedule award payment is made on the daily roll because this single payment represents the initial and final payment of the entire award. This occurs when the date of maximum medical improvement is in the past and the percentage is small enough so the entire award is paid in the past and in full representing one single payment. Assigned with AP to effect payment through the compensation management system.

LS: Entitled to payment of a lump sum schedule award. Assigned only with code AP. Code should not be changed until the schedule award entitlement period has ended.

DE: Monthly payments are being made to at least one beneficiary of a deceased Federal employee. Used with AF. Also required to pay burial, transportation and administrative costs.

ON: Overpayment exists; final decision made on issues of fault and waiver. Claimant not on periodic roll.

OP: Overpayment exists; final decision made on issues of fault and waiver. Claimant on periodic roll.

C1: Closed, accepted, no further payments anticipated; no time lost from work. Assigned only with AM.

C2: Closed, accepted, no further payments anticipated, time lost covered by leave, leave not repurchased. Used with AL adjudication code.

C3: Closed, benefits denied. Assigned with "D_" adjudication code.

C4: Closed, entitlement to continued pay accepted, pay was continued for time lost from work; no further payments anticipated. Assigned with AC.

C5: Closed, previously accepted for benefits, all benefits paid.

CL: Administrative closure.

RT: Retired or awaiting retirement.

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8. Assignment of Status Codes. Rules for assigning status codes to cases as they pass through the system will be given at appropriate points in the case development and case management chapters of the Procedure Manual. So that this information is available in summary form, and its relationship to information tracked by reports is clear, a brief account of proper code assignment in developing and adjudicating cases is given here.

a. Primary Adjudication.

(1) Creation. Each case received is placed in status UN at time of case create. No adjudication code is used with UN, and bills cannot be processed while case is in this status. Cases move from UN to UD when reviewed by a CE who makes that disposition.

(2) Development/Review. If the CE is unable to accept a condition without more information, appropriate development letters are prepared and the case should be placed in status UD.

For a primary case under development, no adjudication status code is assigned. Status UD permits payment of bills, but without an adjudication code only bills properly authorized by Form CA-16 or OWCP referral should be paid.

(3) Acceptance. If the CE is able to accept a condition, either on first review or after development, the condition, as well as an appropriate adjudication status and pay status, are entered in the case management system. The adjudication code will depend on whether the CE accepts any period of disability as supported by medical evidence. All approval (A_) codes must reflect true adjudication, which includes acceptance of the five basic requirements and approval of a condition, and the status code date should be the date on which the case was approved.

While the case remains open and no period of compensation is approved, the appropriate pay status code is MC. The case should remain open as long as bills are anticipated and/or there is no reported return to work. Thus, the CE would make the following disposition of an accepted case for which no claim for wage-loss beyond COP has been filed:

AM/MC: Condition accepted as injury-related. No period of disability accepted as injury-related. Further bills expected and probably payable. (This would be the status for an accepted no-time-lost case.)

AL/MC: Condition accepted as injury-related. Leave was elected on Form CA-1, or it is being used to cover disability due to occupational disease. Some period of disability is supported by medical evidence. Case is being held open for medical bill payment.

AC/MC: Condition accepted as injury-related. Continued pay was elected and is supported for some period. Further bills expected and payable.

If COP was elected but must be denied, and the case as a whole is accepted, the appropriate status is AM/MC. This can change to AD/_ if a claim for leave repurchase or wage loss is accepted. If leave is elected, but no period of disability is supported by medical evidence, the appropriate codes are AM/MC.

(4) Closure (in minor cases). With the exception of noncontroverted no-time-lost cases, all cases must be adjudicated, with acceptance of a condition or formal denial, as well as appropriate status codes entered into the case management system.

The appropriate closure codes for adjudicated cases involving no-time-lost, leave, or short term disability situations are:

AM/C1: Condition accepted. Up to $1500 in medical payments can be made without adjudication by the CE. No time lost.

AL/C2: Condition accepted. Some disability supported and covered by leave. No further claim or bills expected.

Non-controverted no-time-lost cases will be closed without adjudication by the CE as soon as they are created, and will not subsequently require the CE's attention unless any of the following apply:

(a) The total amount of medical bills exceeds $1500;

(b) Evidence is received to show that the injured employee was disabled for work after the date of injury;

(c) Evidence is received to show that a schedule award may be payable for permanent impairment.

Prior to releasing cases to the claims units, the District Office will identify the non-controverted, no-time-lost traumatic injury cases.

COP cases should not be closed until a date of return to work is in file, on Form CA-1, Form CA-3, or other documentation in the file. The appropriate closure code, if no further disability is claimed, is AC/C4.

If COP is elected but disputed in an accepted case, the code should be AM/MC until closure. The issuance of Form CA-1050 should not lead the CE to assign a "D" code. If the case as a whole is denied, Form CA-1050 is not used and a formal notice of decision with appeal rights is issued, with explicit reference to any COP claimed or paid.

b. Compensation Payment.

(1) Daily Roll. The codes for daily roll payments are AD/DR (accepted for daily roll compensation; compensation payable). If continuing CA-7 Forms are expected, the case should remain in that status and should not be placed in a closed or medical pay status, since these will not permit payment through the compensation management system.

Lump sum schedule awards must be in AP/LS status. Therefore, even if a one-time payment of a schedule award is being made, the CE should not useAD/DR. The appropriate status after the payment is made would be AP/C5 or, if medical care continues, AM/MC.

When the claimant returns to work (or ceases to claim compensation) and medical bills are still coming in, the codes should be AM/MC. If the claimant is discharged from treatment, the case is closed AM/C5.

Cases in AL/_ status in which a claim for leave repurchase is filed should remain AL until a leave-buy-back payment is set up, at which time the case status changes to AD/DR.

(2) Periodic Roll. A case in which extended disability is anticipated is paid on the periodic roll and should be in status AP/PR. These codes also apply if the periodic roll payments have ended, and a last payment, not equal to a full four weeks, is paid to fulfill claimant's entitlement.

The case should remain AP/PR while being developed for re-employment potential by the CE, or to determine whether disability continues to be due to the employment. When a determination on future entitlement is reached, the status will change from AP/PR as follows:

AP/PW: Claimant has returned to work with some loss of actual earnings, or claimant's benefits were reduced to reflect a partial earning capacity. Claimant in this status should not be receiving compensation for temporary total disability or a schedule award.

AP/PN: After full development, it has been determined that the claimant has no earning capacity, and a memorandum to that effect has been certified by the Supervisory Claims Examiner (SCE) and placed in the file. These cases must still be reviewed annually to determine whether the status is justified.

(3) Schedule Awards. If a schedule award is being paid, the case should have status AP/PS whether it is being paid on the periodic or the daily roll. If a lump sum schedule award is being paid, the case should have status AP/LS. After expiration of lump sum payment of a schedule award, the case is changed to AP/MC by the system. Further determination by the CE is required to decide whether the status should be changed to AP/C5 or, if medical care continues, AM/MC.

A case should remain in AP/PR status while the CE is determining its ultimate disposition. Cases in PR status for one year or more should be reviewed to determine whether there is a basis for rehabilitation, re-employment, or wage earning capacity determination.

(4) Closure Without Denial. When a claimant who has been receiving compensation on the daily roll returns to work and is discharged from medical care, the case is closed AD/C5. A periodic roll case, when entitlement to medical and compensation ends, becomes AP/C5. However, if expenses for medical treatment are expected to continue after wage loss compensation ends (the claimant is working or elected an OPM annuity), the case may be held in AM/MC status and eventually closed AM/C5.

A0/C5 should not be used routinely on closed cases.

c. Denials.

(1) Use of Denial Codes. A denial adjudication code should reflect a formal decision with full appeal rights, and the adjudication status date should be the date of release of the formal decision by the authorized person. Denied cases are always closed, except on remand from H&R or the ECAB. The codes are shown in paragraph 6 above.

(2) Denial of Monetary Benefits with Continuing Medical Care. If monetary benefits are denied by formal decision, but entitlement to medical benefits continues, the case may be assigned code AT/MC. Examples of AT/MC are:

(a) Claimant has x-ray evidence of asbestos-related disease, but no disability for work and is entitled to yearly medical examinations.

(b) Claimant returned to work without loss of earnings, but will continue to require periodic payment of medical expenses, as for prosthesis repair.

The use of these codes will enable district offices to distinguish cases which are inactive but must be kept open and in inventory (AT/MC) from those which are temporarily active but may eventually be closed and removed from inventory via retirement (AM/MC).

(3) Closures. The appropriate closure code when a case is denied for one of the five basic requirements is C3. C5 may be used with D5 when entitlement ceases after initial acceptance.

d. Reconsideration, Hearings, Appeal. Code D7 or D8 is used when a remanded case is not in a payment status and a de novo decision has not been issued. The pay status is UD. D9 is used while an application for reconsideration on a denied case is being processed. Cases in pay status (LWEC, SA) which are remanded or under reconsideration will retain the adjudication and pay status appropriate to their benefit status (e.g. AP/PW).

e. Reopening Closed Cases.

(1) Closed cases should not be reopened merely to pay medical bills.

(2) Denied cases on which a medical bill is payable must be given a payable status temporarily in some instances. Code AM/MC may be used. Efforts should be made to ensure that cases are promptly restored to closed status after the bill has been paid.

(3) Where Form CA-2a or other claim for recurrence is received, case should be reopened using the last adjudication (A_) code and UD.

(4) Remands and reconsideration on denied cases should be assigned the adjudication code D7, D8, or D9, as appropriate, and pay status UD.

(5) Noncontroverted no-time-lost cases which later require adjudication by the CE which cannot be accepted immediately must be reopened. This may be done manually or by the system, and the case status will be UN.

f. Death. Cases on which death benefits are to be paid must be placed in status AF/DE, which allows payment of burial, administrative costs and survivor benefits. AF/UD may be used for a case in which employment-related death is accepted but documents such as birth certificates, marriage certificates, or election forms have not been received. When there is no further entitled beneficiary because of remarriage, completion of college, etc., the case should be closed AF/C5.

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9. Inquiries. In addition to its essential use in enabling CEs to take timely and proper action on files, and to enable supervisors to monitor case actions, the case management system provides basic information to contact representatives and others for use in responding to inquiries. It is to the advantage of the CE to maintain correct coding information in the system so that a representative can answer telephone inquiries without having to contact the CE for information.

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10. ICD-9 Codes. When conditions are accepted as work-related, the CE should enter the corresponding ICD-9 codes into the case management system. The codes are found in the ICD-9 manuals or electronic ICD-9 reference material. As additional conditions are accepted, the ICD-9 codes should be added to the system.

a. Severity of Condition. The ICD-9 code should accurately reflect the severity of the condition accepted. For instance, if the OWCP has accepted a herniated lumbar disc (code 722.10), the code for lumbar strain (847.2) should not be used instead. Coding should be as specific as possible, coded to the 4th or 5th digit.

b. Surgery. When a surgical procedure has been accepted as work-related, the CE should ensure that the accepted condition has been upgraded, when necessary, to ensure that bills will be paid appropriately.

c. Psychiatric Conditions. When a claimant who has a physical work-related condition requires treatment for a related psychiatric condition (e.g., depressive reaction), the CE must add the psychiatric diagnosis to the system. Failure to do so may result in denial of bills for psychiatric care.

d. Specific Identifiers. One-character identifiers unique to the case management system are used to add more specificity to ICD-9 codes. These identifiers are:

R    Right
L    Left
B    Both
A    Aggravation

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Chapter 2-0402, Security and Prevention of Fraud and Abuse

Paragraph and Subject

Date

Trans. No.

Table of Contents

10/98

99-02

1. Purpose and Scope

03/91

91-22

2. Monitoring Files and Documents

03/91

91-22

3. Payments

03/91

91-22

4. Information from Outside Sources

03/91

91-22

5. Unreported Earnings

03/91

91-22

6. Action Where Fraud is Not Involved

03/91

91-22

 

04/95

95-19

7. Action Where Fraud is Involved

10/98

99-02

8. Action upon Identifying Possible Fraud

03/91

91-22

 

08/95

95-33

 

01/92

92-12

9. Physical Security

01/92

92-12

 

Exhibits

1. Worksheet for Investigation of FEC Claimant

04/95

95-19

2. Incident Report, Form DL-156

 

 

Page 1 (Link to Image)

04/95

95-19

Page 2 (Link to Image)

04/95

95-19

3. Referral of FEC Case to the OIG, Form CA-503 (Link to Image)

04/95

95-19

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1. Purpose and Scope. This chapter describes Claims Examiners' (CEs') responsibilities in maintaining the security of payments of compensation. It establishes guidelines and procedures for referring cases to the Office of the Inspector General (OIG) or to investigators of the Wage and Hour Division or the Office of Federal Contract Compliance Programs (OFCCP).

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2. Monitoring Files and Documents. It is the CE's responsibility to monitor cases for indications of fraud or abuse. This responsibility includes reviewing forms and documents, checking facts for plausibility and consistency, reviewing payment activity, acting on complaints and witness reports, and generally attending to the accuracy and reliability of documentation in the file.

a. Signatures. he CE must review claim forms and certified documents to ensure that original signatures are present. Original signatures of those persons who certify the accuracy of the information enable the Office to hold them accountable for any misinformation furnished. When claims forms, claimant statements, form medical reports such as CA-20, and witness statements are received without original signatures, they should be copied and returned for proper signature. It is not usually necessary to copy both the face and reverse of a form. The original form should not be returned. Signatures should be reviewed to ensure that they have not been altered. If the signature has been amended or if it appears to be different from other specimens in file, the CE should determine whether the signature is genuine by contacting the person who ostensibly signed the form. If the signature is invalid, the matter should be brought to the attention of the OIG.

b. Alteration of Documents. Alteration of forms is most likely on Forms CA-7 and CA-8 and on medical forms such as CA-20, reporting dates of disability, leave or pay information, etc. It may only be necessary to check with the person who prepared the form to ascertain whether the alteration was made by a third party. If it appears that information submitted by the agency or physician has been altered by a claimant in an attempt to significantly misrepresent the facts, the case should be submitted to the OIG (see paragraph 4).

c. Inconsistent Information. The CE should review Form CA-1032 and other forms to ensure that birth dates of children and earnings information are consistent from one report to the next. If discrepancies are found which do not appear to accidental, the CE should develop the record to determine the facts. If a discrepancy can be satisfactorily resolved by letter or telephone call, and overpayment has not resulted, the CE should document the file with the correct information, but not alter the erroneous form or document. If preliminary exploration indicates a pattern of deception, and the exact facts cannot be established with certainty, an investigation may be required. For example, if there are inconsistent reports of earnings and employment over a long period during which compensation has been paid for total disability, investigative help should be requested to establish the earnings record for that period.

d. Other Factors. The CE should be alert to any information which indicates that an improper claim was filed or that a questionable activity, either within or outside the office, has occurred. The best protections against fraud and abuse are careful and attentive case monitoring and intelligent reading of documents. Maintaining current call-ups on all open cases, corresponding with the attending physician, checking the official superior's allegations concerning the claim, and reviewing compensation and medical history against approved payments will prevent fraud in the compensation system.

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3. Payments.

a. Unexplained discrepancies between the Office's payments and the actual medical services received should be explored when reported by the claimant. Discrepancies in dates may be due to the claimant's lapse of memory, and unidentified providers may be Office consultants who reviewed the file. If a significant discrepancy is reported, the case file and billing history should be reviewed, and remaining problems referred to the OIG for investigation as explained in paragraph 5.

b. CEs should obtain ACPS and BPS reports periodically to determine if improper payments are being made on cases under their jurisdiction. In addition, payment histories on missing cases should also be reviewed. Any evidence of medical or compensation payments made on a case which are not clearly supported by the evidence of record or otherwise explained should be brought to the attention of the Assistant District Director (ADD).

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4. Information from Outside Sources. Witnesses, whistleblowers, and other complainants occasionally call or send statements reporting that a claimant has undeclared earnings, engages in vigorous yard work while collecting total disability compensation, etc. The CE should document the file with a complete description of any incoming call and compare the information against other evidence in file to determine whether the allegation requires investigation. The lay person, unfamiliar with compensation, may place undue significance on observations of work and activity. If legitimate questions arise from the complaint, the CE should resolve them in one of the ways described above, by development of the record or by referral for investigation. The CE should not continue to correspond or discuss the case with a spouse, neighbor or other external party. If an affidavit or statement is required from such a party, it should be obtained by an investigator.

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5. Unreported Earnings. A doctor's report or a letter may contain indications that a claimant has earnings which are not being reported. If an interim medical report mentions the claimant's job, Form CA-1032 may be sent to obtain confirmation of the employment, or a narrative letter may be drafted asking for specific information. If the claimant's response is inconsistent with the record, an investigation may be requested. Further evidence of unreported employment should be referred to the OIG.

Claimants are required to report all employment, whether salaried or not, and self-employment. They are not required to report investment income or ownership of a business in which they take no active part. If the claimant's role in a business or employment activity is ambiguous, the claimant should be asked for precise information about the activities performed, the hours of activity each day or week, and any other information which would enable the CE to determine whether the claimant has demonstrated an earning capacity. If the claimant's responses continue to be unclear, the CE may request an investigation to determine the extent of the claimant's activities, and whether these activities generate any income.

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6. Action Where Fraud is Not Involved. Investigation by a Compliance Officer of the Wage and Hour Division, an OWCP investigator, or by claims personnel may be requested as a routine matter in situations which present no clear indication of fraud. For example, such an investigator may check on the activities of a person receiving periodic roll benefits to obtain specific evidence of the kinds of physical movement (lifting, climbing) the claimant is able to engage in, or visit a workplace to determine the factors of employment to which the claimant is exposed.

a. Recommending Cases for Investigation.

(1) If a thorough investigation is needed, the CE should prepare an information worksheet (Exhibit 1) and a typewritten memorandum to the ADD, which includes:

(a) The particular issues about which additional evidence is required; it is the CE's responsibility to give a clear and concise description of the specific problem so that the need for the investigation will be apparent.

(b) A resume of the relevant evidence appearing in the record.

(c) A brief explanation of the reason this evidence is not sufficient to permit a proper determination.

(d) A brief outline for the kind of evidence which the investigator should seek, including the names of any persons the CE believes should be contacted.

Other material pertinent to the investigation, such as a blank OWCP-20 to collect financial information in an overpayment case, may be attached to the worksheet.

(2) When only a few items are needed to adjudicate a case (i.e., a witness statement or an existing specific medical report which correspondence has filed to produce), the CE may request a limited investigation to secure the evidence. The request should contain the full names and addresses of the custodians of the needed evidence.

Under no circumstances should the CE attempt to instruct the investigator concerning the conduct of the inquiry.

b. Decision to Investigate and Assignment of Claim. After compiling the material listed above, the CE will send it to the ADD through the Supervisory Claims Examiner. If the ADD agrees with the CE's recommendation, he/she will forward it to the District Director (DD), who will decide whether the case should be investigated. If so, the DD will forward it to the appropriate office for assignment. In accordance with 5 U.S.C. 554(d), an individual who will be involved in the final adjudication of a case may not participate in such an investigation.

c. After Assignment for Investigation.

(1) Until the investigation has been completed, it is the responsibility of the CE to inform the investigator of any additional information received or other developments in the case which may be useful in conducting the inquiry. Such new material should be referred to the ADD, who will forward it to the investigator.

(2) The CE may properly continue the development of a case by correspondence while it is under investigation where delay is anticipated in the completion of the investigation. In other cases, development may continue if the CE and the ADD believe that it would be useful.

d. Receipt of Report. When the investigation report is received, the CE will review the report together with the case file and take whatever action is supported by the findings. Any substantial indication of fraud should be referred to the OIG.

If reports show that the claimant's physical activity is inconsistent with medical reports, the claimant should be referred to the attending physician with a statement of facts reflecting the observed activity, and the physician should be asked for a reevaluation of the claimant's fitness for work. Further medical development, including a second opinion, may then be undertaken. The claimant's benefits may not be adjusted unless and until the CE can establish a wage-earning capacity based on actual earnings or suitable and available work.

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7. Action Where Fraud is Involved. All OWCP personnel are responsible for reporting actual or suspected abuse or fraud in FECA claims through appropriate channels to the OIG. Form DL-1-156, Incident Report (Exhibit 2 (Page 1 (Link to Image), Page 2 (Link to Image)), is used for this purpose. To maintain control over cases reported to the OIG, all Forms DL-1-156 are to be submitted to the OIG under cover of Form CA-503, Referral of Cases Under the Federal Employees' Compensation Act to the Office of the Inspector General (Exhibit 3 (Link to Image)). This informs the Inspector General of the case status, and whether delays in OIG activity will delay adjudication of the case or payment to the claimant. Known or suspected instances of fraud, abuse, waste or mismanagement, or criminal conduct by or involving OWCP personnel or contractors are covered by Chapter 7 of DLMS (Department of Labor Manual Series) 8. Specifics of the suspected fraud are reported on Form DL-1-156 and processed as described in that section.

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8. Action Upon Identifying Possible Fraud.

a. Initial Action. An OWCP employee who becomes aware of an actual or suspected instance of fraud or abuse in a FECA claim.

(1) Immediately prepare a memorandum to the ADD, describing in detail the known or suspected violation and recommending referral to the OIG. The information or documents that led to the discovery or suspicion must be referenced in the memorandum. To recommend referral to the OIG, the information or evidence need not establish actual fraud or abuse, but only raise a reasonable suspicion thereof.

(2) If the suspected fraud involves a report that the claimant is working while receiving compensation, the CE will, at the same time, release Form CA-1032 or equivalent narrative letter to the claimant. No mention will be made of the evidence received about work activities. This is necessary to avoid conflict with any action that may be taken by OIG.

b. Actions by ADD. Upon receipt, the ADD will review the information or evidence (including the case file) and will arrange for the preparation of Forms DL-1-156 and CA-503 (in triplicate) for the signature of the Regional Director (RD) (see subparagraph g below). The ADD, will make any pertinent comments on the Form DL-1-156 (Block 14) and will forward the forms and the case file to the DD as quickly as possible. Whether the ADD agrees or disagrees with the recommendation for referral to the OIG, the forms and the case file must be forwarded to the DD. In National Office (NO) cases, NO staff will prepare the forms in duplicate for the signature of the Director for FEC, and forward the forms directly to him.

c. Review by DD. Upon receipt of the Forms DL-1-156 and CA-503, the DD will review the forms and attachments, and the case file, and will make any pertinent comments on the Form DL-1-156 (Block 14). The original and copies of the forms, with attachments, will then be forwarded to the RD, regardless of whether the DD agrees with the recommendation for referral to the OIG.

d. Review by RD. The RD will review the forms and their attachments upon receipt. Any pertinent comments will be made in Block 14 of form DL-1-156. After dating and signing the form, the RD will ensure that the originals, with attachments, are forwarded to the appropriate regional office of the OIG. A copy of each of the completed forms will be mailed to the Office of the Inspector General, Division of Compensation Fraud Investigation, P.O. Box 1924, Washington, D.C. 20012. One copy of each of the forms will be maintained in a locked file in the office of the RD. In the National Operations Office, the DD will be responsible for the files. In NO cases, the file will be maintained by the Chief, Branch of Regulations and Procedures. Whether the RD agrees or disagrees with the recommendation for referral to the OIG, the forms must be forwarded to the OIG for a determination of whether investigation/action is warranted.

e. Placement of Documents. Prior to receipt of a report from the OIG, information, documentation, and evidence concerning the known or suspected instance of fraud or abuse will be placed in the case file and will not be removed unless the OIG specifically requests its temporary removal from the file. The release of OIG reports is covered in OWCP PM 1-400.

f. Reports of Fraud. Whenever an OWCP employee is contacted by someone outside of ESA, whether a private citizen or government official, with allegations or information regarding suspected fraud in an FECA claim, the individual will be referred immediately to the ADD or the DD, who will report such contact to the OIG by arranging for the completion and submission of Form DL-1-156 through the RD.

g. Use and Preparation of Form D-l-156, Incident Report. Form DL-1-156 is to be used for reporting actual or suspected incidents of program abuse, fraud, or other criminal violations involving DOL programs or operations. For reporting actual or suspected fraud or abuse in the FECA program, the form will be completed as follows:

Block 1. Enter the date the form is actually signed by the DD.

Block 2. Enter the FECA case file number.

Block 3. For use by the OIG only.

Block 4. Check as appropriate. "Supplemental" will be used when submitting additional information not available at the time the initial report form was sent to the OIG. Generally, "Final" will not be used.

Block 5. Check as appropriate.

Block 6. Check as appropriate. Usually "Program Participant or Claimant" will be used.

Block 7. Enter district office address.

Block 8. Enter the date and time of the incident or discovery. If this is not feasible, enter the date of the document or evidence which led to the allegation or suspicion of the violation.

Block 9. Check as appropriate.

Block 10. Identify the law enforcement agency (such as FBI, U.S. Postal Inspector, Naval Intelligence, etc.) and furnish the agent's full name and address. Results of the contact, including information requested or provided, should be shown in Block 14.

Block 11. Check as appropriate. If necessary, a brief explanation may be included in Block 14.

Block 12. Check "OWCP" and enter the value of funds involved, if available.

Block 13. Furnish the requested information, if available, on the person(s) involved, such as the claimant, physician, etc.

Block 14. Provide a clear and concise statement of the incident. The statement should include the persons and periods of time involved and describe, if possible, how the incident was committed and/or discovered.

Block 15. The responsible official for the purposes of this procedure is the RD.

Block 16. Self-explanatory.

Block 17. Self-explanatory.

Block 18. Copies of all documents (such as forms, letters, reports, etc.) pertinent to the incident, or necessary to clarify the facts, will be forwarded with the original Form DL-1-156 to the regional office of the OIG having jurisdiction, as well as with the copies of the form sent to the OIG, Washington, D.C., and the Director for FEC. The original forms, letters, reports, etc., will be placed in the case file.

h. Pending OIG Actions. The RD shall designate a member of his or her staff to review the file of submissions to the OIG on a periodic basis. In any case where payment or other adjudicative action is being held in abeyance pending OIG disposition, a status inquiry should be sent to the regional office of the OIG to which the material was sent each 30 days. The status of other cases should be checked each 90 days. In the NO these duties will be performed by the designee of the Director for FEC.

Any case where action has been delayed for more than 60 days pending OIG disposition should be reported to the Director for FEC by memorandum, enclosing copies of the Forms CA-503 and DL-1-156. In those cases where action by the OWCP has not been held in abeyance awaiting OIG disposition, a report, enclosing the Forms CA-503, and DL-1-56, should be made to the Director for FEC if no disposition has been made by the end of six months following the submission of the documents. When information is received that the OIG has disposed of a case, the Director for FEC should be advised immediately if a report concerning a delay had previously been made. The Director for FEC will advise the RD whether continued monitoring by the district office will be necessary in those cases where reports have been submitted to him.

i. Tracking. Any request for information, especially an investigative memorandum, in connection with an investigation of an FECA claimant should be tracked on a local PC system. Initial and follow-up actions should be monitored until a resolution is reached, and the Regional Director should sign any correspondence. The Office should retain tracking reports on the PC or in hard copy form.

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9. Physical Security. The physical security of claim files and access to automated payment systems is the responsibility of the DD. Office rules established to protect against loss must be followed carefully by all personnel. The CE should always be aware of the responsibility to safeguard data in the FECS system, case files, and other sensitive materials.

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Exhibit 1: Worksheet For Investigation Of FEC Claimant

Name of Claimant or Beneficiary:_________________________________
OWCP Case File No._______________________ SSN__________________
Address:________________________________________________________
_______________________________________________________________
Telephone Number:______________________________
Date of Injury:__________________________________
Condition(s) for Which Benefits are Claimed/Paid:________________
_______________________________________________________________
Claimant's Occupation:______________________________________________
Employment Address:______________________________________________
________________________________________________________________

Has case been accepted? Yes___ No___ If so, is compensation being
paid? Yes___ No___ If so, at what rate? $________ each four weeks

Purpose of Investigation:
     ____Determine facts surrounding injury or exposure
     ____Periodic roll employment check
     ____Periodic roll activity surveillance
     ____Overpayment financial questionnaire
     ____Other (explain below)

Reasons investigation is requested:______________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________

Specific actions requested (interview, observation, etc.)________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Claims Examiner:_____________________________ Date:______________
Telephone Number:________________________


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Exhibit 2: Incident Report, Form DL-156 Page 1 (Link to Image)

Exhibit 2: Incident Report, Form DL-156 Page 2 (Link to Image)

 

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Exhibit 3: Referral of FEC Case to the OIG Form CA-503 (Link to Image)

 

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Chapter 2-0500, Conferences

Paragraph and Subject

Date

Trans. No.

Table of Contents

09/11

11-08

1. Purpose and Scope

09/11

11-08

2. Responsibilities

09/11

11-08

3. Types of Conferences

09/11

11-08

4. Cases Suitable for Formal Conferences

09/11

11-08

5. Preparation

09/11

11-08

6. Elements of Conference

09/11

11-08

7. Senior CE/GS-12 CE Actions

09/11

11-08

8. Memorandum of Conference

09/11

11-08

9. Obtaining Comments

09/11

11-08

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1. Purpose and Scope. The purpose of this chapter is to provide specific instructions for holding conferences with claimants, employing agency personnel, or other parties to resolve complex issues and facilitate the claimant's early return to work (RTW).

The issues commonly addressed through conferencing include employing agency controversions and challenges, disputed facts or occurrences, and overpayments. In such situations, the conference is employed as a means of fact-finding, following which a decision is made.

A Disability Management (DM) conference is different from these kinds of conferences in that its goal is usually to facilitate the claimant's return to the work force, and, as such, is a form of principled consensus-building. If the objective of the RTW conference is reached, all parties will experience a positive result.

Although conferences will sometimes be held in person with several parties in attendance, most conferences will be held by telephone and will include the claimant and the employing agency. It is important to note that there are no set rules on who should be part of the conference or how many people should participate. Those who can help resolve the issue(s) at hand should be involved.

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2. Responsibilities. Senior Claims Examiners (SrCE) and journey level Claims Examiners (CE) are responsible for conferencing cases. Non-journey level CEs may also participate in some types of conferences.

The Supervisory Claims Examiner (SCE) may refer a case to a SrCE/GS-12 CE if he or she determines that such a case would benefit from a conference; however, in most instances, the SrCE/GS-12 CE is responsible for identifying cases for conferencing.

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3. Types of Conferences. All conferences are to be non-adversarial in nature. There are two specific types of conferences - formal conferences and informal conferences. This chapter focuses primarily on formal conferences. Informal conferences as part of the Disability Management process are discussed in greater detail in PM Chapter 2-0600-12.

a. Formal Conferences. A formal conference may be conducted in the following types of situations.

(1) When entitlement (due process) is involved, e.g., during the adjudication of a claim or reaching a final determination in an overpayment case.

(2) When an issue is in dispute or where detailed technical evidence is required to decide an issue in a case.

In most other instances, an informal conference may be sufficient.

b. Informal Conferences. Ongoing and steady communication between all parties involved in the DM process is vital to a successful resolution, and informal conferences are a particularly effective means of addressing issues that arise that may impede the return-to-work process. Conferences are also helpful when miscommunication between one or more parties has occurred.

Participants involved in an informal conference will vary greatly depending on the issue. During nurse intervention, the Field Nurse (FN) will often be involved as well as the employing agency and the claimant. During vocational rehabilitation, often times the Rehabilitation Specialist (RS) and the Rehabilitation Counselor (RC) will participate along with the claimant and CE.

(1) An informal conference during DM should have the goal of addressing the concerns of all involved parties and arriving at a solution that addresses participant concerns whenever feasible within the confines and parameters of the FECA program.

(2) Some reasons for conferencing during the DM process include: disputed medical evidence being used for a return-to-work effort; questions regarding the duties in a job offer; personnel issues pertaining to a job offer; and expectations during the various phases of vocational rehabilitation, including placement.

(3) A detailed Form CA-110 (record of call) or a memorandum to the file which documents the conference discussion should be placed in the case file.

(4) A formal follow-up or comment period is not required after an informal conference. In most instances, the issue at hand will likely be resolved by taking some other type of action, such as referring the case for a second opinion, requesting a new job offer, or sending a narrative letter which will reference the conference discussion.

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4. Cases Suitable for Formal Conferences. Formal conferences should be considered in the following situations:

a. The employing agency has controverted Continuation of Pay (COP) or has challenged the claim. This may be due to Fact of Injury, Performance of Duty (e.g., recreational injuries, assault cases), or for some other reason.

b. An overpayment has been identified and an issue remains unresolved.

(1) The financial data in the file is not adequate for a decision on waiver or repayment, or

(2) The issue of fault is in question, or

(3) No possible offset for recovery exists and compromise is possible.

c. Vehicle or housing purchase and/or modification. If the nature and complexity of the issue in these circumstances is relatively minor, an informal conference may be acceptable.

d. The evidence of record indicates that the claimant is not able to express himself/herself well in writing.

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5. Preparation. Before addressing the issues of the conference, the SrCE/GS-12 CE should advise the participant of the nature, seriousness, and possible results of the conference. The SrCE/GS-12 CE should also ensure that it is convenient for the participant to proceed with the conference and that the participant has any necessary records at hand. If either of these conditions is not met, the SrCE/GS-12 CE and the participant should schedule the conference at a mutually agreeable time in the near future.

Especially for conferences involving more than one party, a pre-conference call may be needed to schedule the call, provide the phone number, and explain the use of the conference line. If a pre-conference call is held, a CA-110 should be prepared for the file to document the call.

Upon calling the conference party, the SrCE/GS-12 CE should:

a. Give the participant a clear picture of the purpose of the conference call.

b. Explain the issues to be discussed.

c. Describe any evidence the participant needs to have for the conference call.

A pre-conference call is not a requirement. If the conference party is willing to proceed at the time of the initial call, the SrCE/GS-12 CE can proceed with the conference.

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6. Elements of a Conference. All conferences, regardless of whether there is a pre-conference call, should include the following:

a. Identification of caller.

b. Statement of the purpose of the call.

c. Statement that notes will be taken and, for this reason, periodic pauses will occur.

d. If the claimant is the only participant, advise him or her that information gained during the call will be shared with the employing agency.

e. An acknowledgement from the participant(s) that he or she understands the nature of the issues and the purpose of the conference.

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7. Senior CE/GS-12 CE Actions. During the discussion, the SrCE/GS-12 CE should:

a. Address the issues in ascending order of difficulty and listen carefully to what is being said.

b. Take notes complete enough to capture necessary information.

c. Probe responses which are too general or not credible, or which conflict with other statements given or other evidence in the file.

d. Confirm the accuracy of the statements recorded by reading them back to the participant(s) for confirmation.

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8. Memorandum of Conference. After a formal conference is completed, the SrCE/GS-12 CE should complete a neutral Memorandum of Conference (that is, one which does not contain findings). It should describe what each party said in the conference in clear, non-technical language. The Memorandum of Conference should:

a. Include the name of the claimant, file number, and date of the conference.

b. Identify the SrCE/GS-12 CE who conducted the conference and the participants in the conference.

c. Provide a background.

d. Identify and describe the issues which were discussed.

e. Describe each party's position before the conference.

f. Describe the explanations provided in the conference to properly document the record. The SrCE/GS-12 CE should explain, in clear language, the criteria being used to make the various decisions and the implications of those decisions.

For instance, if the SrCE/GS-12 CE provides explanation to a claimant in an overpayment case concerning the criteria for deciding "fault" and "waiver" and the implication of these decisions, this should be fully documented. The meaning of "fault" should be explained, as well as the criteria upon which it is determined. For example, the SrCE/GS-12 CE should state that a preliminary finding of fault was made and explain how it was reached; state the implications of this finding; and invite the claimant to provide any information that could affect the finding.

g. Describe what each party said in the conference that is relevant to the issue.

h. Describe the method used to confirm the accuracy of the information collected during the conference and recorded in the Memorandum of Conference.

i. Describe any agreements reached in the conference. For example, an agreement with a claimant in an overpayment case to repay with deductions from schedule award payments.

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9. Obtaining Comments. In most cases, the SrCE/GS-12 CE should offer each participant an opportunity to comment on the Memorandum of Conference.

a. Comments Required. A comment period is required for most formal conferences, with the exception of the circumstances describe below, especially if a conference with the claimant results in new allegations that need to be shared with the employing agency for confirmation or rebuttal.

(1) Each participant should be sent a copy of the Memorandum of Conference and be requested to provide any comments within 15 days. The requests may be sent to all parties simultaneously rather than serially. However, if comments from one or more parties result in a material change to the Memorandum of Conference, the SrCE/GS-12 CE will need to request comments from the other party(ies) again.

(2) At the end of the 15-day period, the SrCE/GS-12 CE should make findings on the issue(s) for resolution. These findings need not be the subject of a separate memorandum, but they will need to be documented in any resulting formal decision. Where a controversion is not upheld, rationale for OWCP's action should be provided in accordance with 20 C.F.R. Section 10.119.

b. Comments Not Required. When it is clear that the decision will benefit the claimant and that the basis of any objection from the employing agency will be addressed in the ensuing decision or other correspondence, a comment period is not required. For instance, a controverted case which will be resolved in the claimant's favor as a result of a conference, and the employing agency's controversion will be addressed via correspondence which will advise the agency of the basis for continuing pay.

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Chapter 2-1100, Feca Third Party Subrogation Guidelines

Paragraph and Subject

Date

Trans. No.

Table of Contents

03/06

06-02

1. Purpose and Scope

03/06

06-02

2. Authority

03/06

06-02

3. Responsibilities of OWCP and SOL

03/06

06-02

4. Letters, Forms and Status Codes

03/06

06-02

5. Definitions

03/06

06-02

6. Initial Third Party Screening by the CE

03/06

06-02

7. Administration of Third Party Cases

03/06

06-02

8. SOL Administration and Case Management of Third Party Cases

03/06

06-02

9. Processing the Statement of Recovery

03/06

06-02

10. Compensation Status Following Refund to the United States

03/06

06-02

11. Establishment of Debt and Debt Management

03/06

06-02

12. USPS Cases

03/06

06-02

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1. Purpose and Scope. This subchapter outlines the procedures for administering the government's rights under §§ 8131 and 8132 of the FECA to require FECA claimants to seek damages from third parties potentially liable for damages as a result of the FECA-covered injuries, and to refund a portion of any money or other property recovered. This is referred to as "FECA subrogation." This subchapter addresses the responsibilities of the Office of the Solicitor (SOL) and District Office (DO) personnel in identifying and administering cases involving potential third party actions; the interrelationship between DO personnel and SOL personnel in the Division of Federal Employees' and Energy Workers' Compensation (FEEWC) (formerly the Division of Employee Benefits) at the National Office concerning these actions; and the handling of cases involving litigation in federal court. The necessity for careful evaluation of the appropriate course of action regarding a third party case occurs regularly in the claims adjudication process. Except to the extent specifically provided herein, these procedures apply to actions taken by the United States Postal Service (USPS) in pursuing third party claims. (See FECA PM 2-700.13 and 2-800.3.)

When a third party is or may be legally liable for a FECA-covered injury and any damages are recovered from the liable third party or the third party's insurance company, the OWCP has a right to a refund of a portion of any recovery. This is true even if the damages recovered from the third party are not similar or identical to the benefits paid by the OWCP, such as where OWCP has paid for medical treatment and lost time and the recovery from the third party or the third party's insurance carrier is for pain and suffering only. See Lorenzetti v. United States, 467 U.S. 167 (1984).

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2. Authority.

a. Section 8131 of the FECA (5 U.S.C. § 8131) provides that, to the extent that an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability on a person or persons other than the United States (a "third party") to pay damages, OWCP may require the FECA beneficiary to assign a right of action to enforce that liability to the United States, or to prosecute the action in his or her own name.

b. Section 8132 of the FECA (5 U.S.C. § 8132) sets forth the formula for computing the refund due to the United States after a FECA beneficiary receives money or other property from a third party in satisfaction of the third party's liability to the beneficiary.

c. 20 C.F.R. §§ 10.705-10.719, as revised effective January 4, 1999, contain further guidance concerning cases involving liability of a third party

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3. Responsibilities of OWCP and SOL. All offices (owning DO's, FEEWC, USPS) are responsible for ensuring that attorneys and claimants are actively pursuing recoveries from third parties, filing any required Statement of Recovery, and paying the required refund.

a. OWCP.

(1) The Regional Director. With the exception of certain USPS cases (see paragraph 2-1100.12 below), Regional Directors (RDs) are responsible for dentifying and processing third party cases under 5 U.S.C. §§ 8131 and 8132. This responsibility has been delegated, through the District Director and Assistant District Director, to a limited number of claims examiners, or in certain instances, to fiscal officers or workers' compensation assistants. These persons are known as designated claims examiners.

(2) Each Claims Examiner (CE) is responsible for identifying any potential third party liability during the primary examination of a case in accordance with guidelines contained in FECA PM 2-1100.6, below.

(3) The Designated Claims Examiners (DCE) are responsible for ensuring that third party cases are processed in a timely manner and in accordance with the procedures outlined in this subchapter. This includes the responsibility for timely communications with the appropriate party (i.e., the claimant, the employing agency, SOL, etc.).

(4) Cases in the Branch of Hearings and Review. Where a case has been transferred to the Branch and Review. If the case is one which has not previously been identified as one involving potential third-party liability, the initial notification letter (CA-1045) will be prepared and released by the owning DO, but the responsibility for handling the rest of the third-party issues will remain with the normally responsible entity (OWCP district office, SOL office, or USPS, as appropriate).

b. SOL. The Division of FEEWC, Office of the Solicitor, Department of Labor, Washington, D.C. is responsible for administering FECA subrogation aspects of any cases referred for that purpose, and for assisting the DO in regard to FECA subrogation issues in cases not referred to SOL pursuant to FECA PM 2-1100.7.d.

Pursuant to 20 C.F.R. § 10.705, SOL has been delegated authority to administer the third-party subrogation aspects of certain FECA claims for OWCP. FEEWC has responsibility over all delegated third party claims in the district offices and any other cases FEEWC has agreed to handle on the specific request of a DO or the USPS. In addition, FEEWC coordinates national policy concerning pursuit of refunds due to the United States, and, through the Chief, Subrogation Unit and the Deputy Associate Solicitor, serves as an adviser to the district offices.

c. Inquiries pertaining to a specific third party case will be referred to the DCE, FEEWC, or the USPS. The DCEs are responsible for responding to general questions concerning third party matters.

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4. Letters, Forms and Status Codes.

a. The following letters and forms are used in processing third party cases (Please note that, where the form has been approved by the Office of Management and Budget (OMB); OWCP, SOL, and USPS must use the OMB-approved form):

(1) Ltr. CA-1045, Notice of Third Party Rights and Obligations.

(2) CA-1121, Request for Information Concerning Third Party Aspect.

(3) Ltr. CA-1108, Notice of Third Party Obligations (sent by OWCP to attorney).

(4) Ltr. SOL-1108, Notice of Third Party Obligations (sent by SOL to attorney)

(5) Form EN-1108, Long Form Statement of Recovery.

(6) Ltr. CA-1109, Authorization to Anyone to Release Information to Claimant's Attorney.

(7) Form CA-161, Disbursements Made by the OWCP.

(8) Form CA-164, Third Party Recovery Worksheet.

(9) Form CA/EN-1122, Employee's Statement of Recovery Made Without an Attorney - Minor Case, Short Form Statement of Recovery.

(10) Ltr. CA-1111, Notice to Third Party Insurer.

(11) Ltr. CA-1044, Notice of Third Party Credit.

(12) Ltr. CA-1120, Notice of Closure When No Credit Was Created.

(13) Form CA-160, Referral of Third Party Material.

(14) Ltr. CA-1110, Request for or Transmittal of Third Party Information.

(15) CA-1032, Report of Earnings

b. The following status codes are used to track the progress of third party cases:

0
1
2
3
4
5
6
7
8
9
10
11
12
13
14

No 3rd Party Potential
Identified as 3rd Party, Not Referred to SOL
Referred to Solicitor
USPS Case, Responsibility of USPS
Closed Minor, Not Economical to Pursue
Closed Other
Settled, No Refund Due
Settled, Refund Not Received
Settled, Refund Received, No Credit Remaining
Settled, Refund Received, Credit Against Future Compensation
Closed, Applicable Statute of Limitations Has Expired
Closed, Negligent 3rd Party Cannot be Identified
Closed, Negligent 3rd Party Has Left Jurisdiction
Closed, Negligent 3rd Party Has No Assets
Closed, 3rd Party Identified is Clearly Not Liable

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5. Definitions.

a. Minor Injury. A minor injury is defined as an injury in which the employee's time lost from work (including sick or annual leave or continuation of pay used to cover the absence) does not exceed 30 days, or total disbursements from the Employees'Compensation Fund do not exceed the current amount for administrative short-form closures.

b. Third Party Case. A third party case is any case in which a third party other than the United States, or an employee of the United States acting within the scope of his or her employment, is potentially liable for an injury, illness, or death which is covered under the FECA.

c. Subrogation Aspects of a FECA Case. The subrogation aspects of a FECA case include the obligation of a FECA beneficiary to prosecute an action against a third party when required by OWCP or SOL,and the obligation of a FECA beneficiary to:

(1) Report any recovery from a third party; and
(2) Make the required refund as a result of such recovery.

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6. Initial Third Party Screening by the CE. The case creation process includes the entry of certain codes and other information from the Notice of Injury. A predetermined combination of such codes and information automatically marks the computer record as having third party potential and prevents automated administrative closure of the case file. During the primary examination of a case the CE will review the initial claim form and other documents for any indication of potential third party liability which may not have been reflected in the data entered into the computer record at case creation. If the CE believes the injury, illness, or death may have been caused by someone other than a Federal employee acting within the scope of his or her employment, then he or she should refer the case to the DCE with a brief explanation.

The potential for third party liability exists in a variety of situations. Injuries occurring off government premises (a letter carrier slipping on a homeowner's steps or an employee tripping over an uneven pavement surface) or on government premises (a clerk falling over equipment left in a hallway by a contractor) may have third party potential. The use of equipment, or a substance, that causes injury due to faulty manufacture or because it is inherently harmful, may place a liability on the manufacturer or vendor. If the CE sees the existence of third party potential, however doubtful, the CE should refer the case to the DCE for determination.

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7. Administration of Third Party Cases by DCE.

a. Initial Actions.

(1) Review the case to determine the status of the third party aspect of the case. If no third party potential actually exists, the third party indicator code will be changed to reflect this. If the Employing Agency (EA) had made an explicit referral for third party action, notify the EA in writing of this decision.

(2) If third party potential exists, release Ltr. CA-1045 (or, in a death case, a narrative equivalent of Ltr. CA-1045) to the claimant, with a copy to the employing agency. If advice is received that the employee has retained an attorney to handle the third party action, the DCE should immediately initiate referral to the FEEWC, consistent with subsection d. of this section, below.

(3) Claims from certain Census Workers – Census Workers (enumerators and field representatives) are required by 13 U.S.C. § 9(a)(2) to maintain the confidentiality of information provided by a resident or establishment, and are subject to criminal penalties including imprisonment under 13 U.S.C. § 214 for the release of information protected by 13 U.S.C. § 9. For this reason, it has been determined that except where an injury is the result of a deliberate act by the resident or the owner of a business establishment, OWCP will not require a Census enumerator or field representative who is injured on the private property of the resident or interviewee to pursue a third party claim against the resident. The Bureau of the Census has been instructed to answer "no" on Form CA-1 in response to the question of whether the injury was caused by a third party. Unless the DCE has confirmed with the Bureau of the Census that the injury was the result of a deliberate act by a resident, or an injury was sustained in transit between interview sites in such a way that the census worker can maintain confidentiality, the DCE hould not release Letter CA-1045. For a more detailed discussion, see FECA Bulletin 99-30, issued August 30, 1999.

(4) Develop information needed for the determination of the third party potential, in coordination with the responsible CE, to avoid duplication of effort and confusion on the part of the injured worker. Depending on the situation, such information may include accident reports, names and addresses of witnesses, statements of witnesses, diagrams and photographs, investigative reports, and other similar information that may be helpful in handling the third party aspects of the case. In cases involving dog bites, falls, trips and slips, auto accidents, and product liability, Ltr. CA-1121 should be used to obtain the needed information. The case will be scheduled for review in 30 days.

(5) If no reply to Ltr. CA-1045 is received within 30 days, release another Ltr. CA-1045 with the notation "SECOND REQUEST," and again schedule the case for review in 30 days. If no reply to the second Ltr. CA-1045 is received within 30 days, the DCE should release a letter notifying the claimant that, if a reply is not received within 30 days, the claimant's right to compensation will be suspended pursuant to 20 C.F.R. § 10.708. If no satisfactory response is received within 30 days, the DCE will release a letter notifying the claimant of the suspension of compensation entitlement.

(6) If total OWCP disbursements and/or days of disability have exceeded the established limit for a minor third party case, the case will be set for review by the DCE, with immediate referral to the appropriate office. In addition, any minor third party case should be set for review at three-month intervals. At each review, the DCE should review the case for any new information indicating a possible change in third party status.

(7) Determination Not to Require Action To Be Pursued Against a Third Party. Where a beneficiary makes a written request to OWCP or FEEWC pursuant to 20 C.F.R. § 10.709 to be released from section 8131's requirement that the beneficiary prosecute a claim against a third party, the beneficiary should include as much detailed information a possible regarding: the circumstances of the injury or death; the extent and amount of damages resulting from the injury or death; the potential for recovery, including, in appropriate cases, an attorney's assessment of the chances of prevailing on the merits, and an attorney's assessment of the costs of suit relative to the potential recovery; and any other considerations the beneficiary or attorney believes to be relevant to OWCP/SOL'S determination whether to release the beneficiary from section 8131's prosecution requirement.

After considering the request of the beneficiary, and any further information or documentation requested from the beneficiary or the attorney, the beneficiary will be provided written notification of the determination on the request. This notification will emphasize that this discharge extends only to the prosecution requirement of section 8131, and that, should a recovery from a third party be received, the refund requirement imposed by section 8132 is still in effect.

b. DCE Action on Receipt of Statement of Recovery (SOR). (The OMB approved SOR, Form EN-1108, must be used.) When the SOR is received along with information concerning the amount of refund, the DCE should take the following actions:

(1) If the SOR has been approved by the SOL, then skip to step (2), otherwise review the claimant's SOR for accuracy. If accurate and complete, approve the SOR by initialing and dating the form.

(2) The DCE should send the appropriate notice to the claimant with a copy to the employing agency and the claimant's attorney. This notice confirms receipt of the refund and informs all parties of any surplus recovery against which future compensation payments must be credited (Ltr. CA-1044 if there is a third party credit, or Ltr. CA-1120 if there is no credit).

(3) If not accurate or complete, the DCE should complete a corrected version of the SOR, scan a copy into the file, and send a copy to the claimant for a new signature, re-submittal, and approval. If necessary, the DCE should request that the claimant provide any sum necessary to satisfy the adjusted amount of the refund. If the claimant has refunded too much money, the DCE should so advise the claimant and process a payment to repay that excess refund. If the SOR is based on old disbursement figures that are no longer accurate because further disbursements have occurred prior to the processing of the SOR, the DCE must revise the SOR to reflect the current (accurate) disbursement figures, and must follow the above procedure for the submission to OWCP of the revised SOR by the claimant, bearing the claimant's signature. Additional disbursements may not be added to the amount of the surplus which must be absorbed prior to reinstatement of compensation benefits.

(4) The DCE follows established procedures for depositing any checks that were directly received and for crediting of the refunded OWCP disbursements to the compensation fund. Where a multi-party check is received which bears proper endorsements of any party or parties in addition to OWCP, the DCE is authorized to endorse and deposit the check on behalf of OWCP, and should not return such a check merely because it is made out to more than one party. When the SOR is received, along with information from the fiscal section concerning the amount of the refund, the DCE should complete parts A, B, and C of Form CA-164 as appropriate, and forward it to the fiscal section. Form CA-164 allows the DCE to advise the fiscal section of the amount of refund due and the amount of refund actually received, and to indicate needed fiscal actions. The Form CA-164 also serves as documentation of the computation for crediting the refunded OWCP disbursements to the employing agency. The DCE should also ensure that the EN-1108, the completed CA-164, and a copy of the refund check are scanned into the case record.

(5) If the claimant is making a refund in installment payments, the DCE should establish an accounts receivable, and credit each partial payment received against that debt.

c. DCE Action on Receipt of Information Establishing a Recovery (without a completed SOR).

(1) Where a case is being handled directly by OWCP (one not referred to SOL or the USPS), if the DCE determines or has reason to believe that:

(a) A recovery has occurred, but the claimant has not submitted the required refund; or

(b) The claimant has not submitted sufficient information to establish the amount of the refund due; or

(c) The unpaid refund is less than $2000.00,

the DCE should release a letter notifying the claimant and his/her authorized representative that if the required refund, or requested information needed to determine the amount of the refund, is not received within 30 days, the claimant's right to compensation will be suspended pursuant to 20 C.F.R. § 10.716.

If no satisfactory response is received within 30 days, the DCE will issue a decision advising the claimant of the suspension of compensation entitlement, and provide the claimant with notice of the appropriate rights of administrative review.

(2) On a case not referred to SOL or the USPS, if the DCE receives information that a recovery has occurred which results in a refund owed by the claimant greater than $2,000, the DCE will not automatically refer the case to SOL. Rather, the DCE will attempt to collect from the claimant the refund due; if the claimant does not submit the required refund, the DCE will then attempt to collect the amount owed through the established debt collection procedures. Section 10.716 of 20 C.F.R. provides that the waiver provisions of 20 C.F.R. §§ 10.432 through 10.440 do not apply to actions taken to collect such refunds.

d. Referral to SOL by the DCE.

(1) After a case is identified as a potential third party case, the DCE will refer it to FEEWC. All cases not involving a "minor injury" as defined in 2-1100.5.a above are to be referred to FEEWC. In addition, the following classes of cases are to be referred:

(a) Cases which were properly not initially referred (because they met the definition of "minor injury"), but which no longer meet that definition;

(b) Cases where an attorney is involved; and

(c) Cases where FEEWC agrees to accept a third party case because of a particular issue identified by the owning DO in a written memorandum.

(d) Cases from the same incident arising in more than one district office, such as group injuries, plane crashes, class actions, and similar circumstances.

On the written recommendation of the owning DO, FEEWC may also agree to accept as a referral a case which does not meet the preceding criteria.

(2) When a case is identified for referral, the DCE will refer the case to FEEWC using Form CA-160. Copies of the CA forms, as well as copies of other pertinent documents such as witness statements, accident reports, medical reports, correspondence from an attorney, etc., must accompany the Form CA-160. The case record itself will be retained by the DO. If any disbursements have been made at the time of referral, they will be shown on the reverse of the Form CA-160. All disbursements shown should reflect the gross amount paid prior to any deductions. A copy of the Form CA-160 will be scanned into the case record.

(3) When a case is referred to FEEWC, the computer record will be updated to reflect the new third party indicator code.

(4) After initial referral, the DCE will furnish an updated disbursement statement on Form CA-160 to the FEEWC within five working days of receipt of the request, and will submit other pertinent information at the same time. Any material that, in the opinion of the DCE, is urgent should be sent immediately to the FEEWC.

e. Action by DCE on Receipt of Information from FEEWC.

(1) Notice of Settlement or Judgment. FEEWC will contact the DCE when notice is received that a settlement or a judgment has been received in a third party case which is expected to result in a surplus. On receipt of this information, the computer record will be updated to reflect the appropriate indicator code, and the DCE will calculate all benefits paid to the FECA beneficiary. The DCE will immediately forward this information to FEEWC, which will advise the FECA beneficiary's attorney, or the FECA beneficiary (if unrepresented) of the total amount of disbursements.

(2) On receipt of a memorandum from FEEWC recommending action by the owning DO (such as a memorandum under 2-1100.8.d.(2) recommending sanctions for failure to prosecute an action, file a SOR, or pay the required refund), the DCE will analyze the evidence, information, and recommendations from FEEWC, and will take appropriate action, including forfeiture or suspension of compensation benefits, based on the FEEWC's recommendations.

(3) Where the formal decision denies a request for payment of compensation benefits, or results in payment of past or continuing compensation benefits in an amount less than that requested or anticipated by the claimant, the formal decision should be accompanied by full appeal rights.

(4) Where the decision addresses an issue solely related to the calculation of the statutory right of reimbursement or the refund due to the United States under 5 U.S.C. § 8132, and does not suspend or terminate compensation benefits or deny a request for payment of benefits, the claimant should not normally receive notification of appeal rights. In such circumstances (for example, where there is no continuing compensation entitlement, and OWCP requests that the claimant refund an additional amount beyond that which the claimant has already paid to OWCP), OWCP should notify the claimant that it will evaluate any additional evidence or argument that the claimant wishes to submit supporting a contention that the formal decision is incorrect.

f. Other Duties of the DCE. The DCE performs other duties as set forth in this subchapter. For example, the DCE may be required to take action based on receipt of information or requests from FEEWC (2-1100.8), and is responsible for debt collection on cases that have not been referred to FEEWC. (2-1100.11.a). In addition, paragraphs c. and d. of 2-1100.12 describe the DCE's responsibilities regarding third party cases handled by the USPS pursuant to the memorandum of agreement between OWCP and USPS.

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8. SOL Administration and Case Management of Third Party Cases. FEEWC is responsible for supervising the subrogation aspects of FECA third party damage claims referred by the DO. They will monitor the progress of all third party claims transferred to their offices for handling and will keep the FECA beneficiary's attorney, or the FECA beneficiary, if unrepresented, apprised of the current disbursement amounts. When responsibility for administration of third party liability is transferred to the FEEWC, the FECA beneficiary's attorney, or the FECA beneficiary, if unrepresented, will be notified of the transfer, and will be advised of the obligation to prosecute an action for damages against the party responsible for the injury.

a. Once the DO has referred a third party claim to FEEWC, FEEWC will:

(1) Review the claim to ensure that there is third party liability and that the claim meets the criteria to be referred to SOL; if either of these requirements is not satisfied, the case will be returned to the owning DO, with an explanation for the return;

(2) Advise the claimant or the claimant's attorney of the provisions of 5 U.S.C. §§ 8131 and 8132. Also, the attorney should be advised that if it is the attorney's opinion that the claim is not economical to pursue, the attorney should make a written request under 20 C.F.R. § 10.709 for release of the obligation to pursue a recovery (providing the information described above in 2-1100.7.a.(6)). FEEWC will then make a determination whether to discharge the claimant's obligation under the Act to pursue an action against a third party; and

(3) Provide the claimant or attorney with current disbursements including printouts of the compensation and bill payment histories. In death claims, the disbursements will be reported separately for each beneficiary.

b. Initial FEEWC Action on Receipt of Referral. On receipt of a case, FEEWC will make an initial analysis to ensure that the case receives sufficient attention in advance of the expiration of the statute of limitations.The FEEWC will establish and use an automated reminder system (docket, AR, or similar system) to track cases pending in the office, and will request periodic status reports from the claimant and/or the claimant's attorney.

c. Beneficiary's Failure to Respond. A FECA beneficiary is required to take action against a responsible third party to satisfy the requirements of §§ 8131 and 8132 of the FECA. A FECA beneficiary is also required to provide periodic status updates and any other relevant information in response to requests from OWCP or FEEWC, 20 C.F.R. § 10.707. If a FECA beneficiary refuses or fails to respond to requests for information, it may be determined that he or she has forfeited his or her right to compensation, or that the right to compensation is suspended, under 20 C.F.R. § 10.708. FEEWC will send two warning letters to the FECA beneficiary's attorney or the FECA beneficiary, if unrepresented, before notifying OWCP of its recommendation concerning the appropriate action to be taken due to the FECA beneficiary's failure to respond. Also note that when a FECA beneficiary is represented by counsel, the primary responsibility for providing periodic status updates and any other relevant information is counsel's.

When a FECA beneficiary is represented by an attorney, all SOL contact should be made with the FECA beneficiary's attorney. In such circumstances, FEEWC should not communicate directly with the beneficiary on matters within the scope of the attorney's representation, unless the attorney has provided FEEWC specific written permission for such practice.

If a represented FECA beneficiary contacts FEEWC by telephone, the beneficiary should be advised that FEEWC will not discuss any matters with him or her without the attorney's express permission. If FEEWC receives written correspondence from a represented FECA beneficiary, the written response by FEEWC should be sent to the FECA beneficiary's attorney.

d. Failure to Prosecute an Action.

(1) What constitutes failure to prosecute? 20 C.F.R. § 10.707 sets forth the minimum that is required of a FECA beneficiary who has been notified that action against a third party is required. Paying the required refund alone, after a recovery from a third party has been received, is not the only requirement that must be satisfied. Among other responsibilities, the beneficiary is responsible for providing periodic status reports and other information when specifically requested to do so by OWCP or FEEWC. In addition, as provided by § 10.707(c), unless specific permission is granted by OWCP or FEEWC, the beneficiary may not settle or dismiss a case for any amount less than the refundable disbursements as defined in § 10.714.

(2) Sanctions for Failure to Prosecute. Under 20 C.F.R. § 10.708, OWCP/SOL may determine that a FECA beneficiary who fails to satisfy the statutory and regulatory requirements for prosecution of a third party action has forfeited all past and future compensation benefits. Rather than declare all compensation forfeit, CP/FEEWC may also suspend compensation benefits until the beneficiary complies with the request.

When FEEWC believes that sanctions for failure to prosecute an action are appropriate, FEEWC should prepare a referral memorandum to the owning DO which includes suggested findings of fact and statements of reasons for the imposition of sanctions. The memorandum from SOL will also make a specific recommendation whether suspension or forfeiture is the appropriate sanction in the particular case, and should also contain an analysis of the expiration date of the statute of limitations for the filing of the underlying third party action.

e. Release of Obligation to Prosecute an Action. In addressing requests from claimants and/or their attorneys, FEEWC will use the same procedures set forth above in 2-1100.7.a.(6) for the DCEs.

f. Notice of Settlement or Judgment. FEEWC should notify the DCE of all settlements and judgments. If a settlement or judgment is expected to result in a surplus, SOL will notify the DCE that payment of continuing compensation benefits should therefore be suspended pending exhaustion of the surplus.

g. Approval of the SOR. Once the signed SOR is submitted, SOL will review it for accuracy and compliance with the FECA and these procedures. If the SOR is signed and filled out completely and correctly, it should be approved as submitted. If the claimant or the attorney does not sign the SOR, or if the SOR must be revised or redrafted, it should be returned for a proper signature. However, if a check is received, even if the check is not accompanied by a SOR, or by an incorrect SOR, the check should be forwarded to OWCP. Upon approval of the SOR, it will be forwarded to the claimant or his/her attorney, with a request that the government's refund, if not already received, be submitted within thirty days of the receipt of the letter. Also, an approved copy of the SOR is forwarded to the owning DO. Detailed instructions for completing a SOR are contained in 20 C.F.R. § 10.711 and section 2-1100.9 of this subchapter. In case of disputed ssues, see subsection i below.

h. Procedures for Processing Refund Checks Received in FEEWC. FEEWC must have, at a minimum, a manual system for maintaining a log of all checks received. In addition, all third-party refund checks received in the office must be kept in a secure location.

Upon receipt of the government's refund by FEEWC, FEEWC will forward the check to the OWCP National Office, which in turn will send the check and the approved SOR to the appropriate lockbox depository. FEEWC should notify the DCE whether completion of this action closes the third party subrogation aspects of the case. For any SOR for which a refund check has not been received, the debt should be collected in accordance with the procedures described in 2-1100.11.

i. Actions on Disputed Issues. Where a claimant or an attorney expresses a disagreement with the action of FEEWC in handling the third party aspects of a claim, and this disagreement cannot be resolved, FEEWC should advise the claimant's attorney to request that a formal determination be issued regarding the disputed issue or issues. Where FEEWC receives such a request, it should prepare a referral memorandum to the owning DO. This emorandum should include suggested findings of fact and statements of reasons, as well as a specific recommendation for a course of action. All formal decisions regarding disputed issues arising out of the processing of third party claims will be issued by OWCP. See 2-1100.7.e, above, describing the duties of the DCE on receipt of a recommendation from SOL.

The Department of Labor cannot waive or compromise the statutory right of reimbursement that arises as a result of the language of § 8132. If an attorney requests that the statutory right of reimbursement be waived or compromised, the attorney should be referred to the Employees' Compensation Appeals Board (ECAB) decision in Willie E.Cantrell, 13 ECAB 490, at 493 (1962), in which the ECAB stated that the "terms of the [FECA] are specific as to what shall be charged against the proceeds of a third-party recovery and neither the Bureau (OWCP's predecessor agency) nor the Board has the authority to waive or compromise the requirements of the Act." See also Charles Howell, 38 ECAB 421 (1987), and cases cited therein.

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9. Processing the SOR.

a. Submission of the SOR. A FECA beneficiary (or the beneficiary's attorney) is required to submit detailed information about the amount recovered and the costs of suit on the SOR form pursuant to 20 CFR 10.707(e). The FECA beneficiary or attorney should notify OWCP or FEEWC, in writing, within 30 days of receipt of a third party settlement. A SOR must be filed for each recovery received by a FECA beneficiary. When multiple settlements or recoveries after settlement or judgment are obtained from different third parties on account of the same injury or illness, a SOR must be filed and any indicated refund due to the United States must be made within 30 days after receipt of each recovery.

b. Failure or Refusal to Submit a SOR.

(1) Action to be Taken When the Beneficiary Has Failed or Refused to Submit a SOR. Whenever OWCP/FEEWC becomes aware that a FECA beneficiary (or the beneficiary's attorney) has failed or refused to submit a SOR within 30 days of a recovery, OWCP/FEEWC shall issue a letter by certified mail notifying the FECA beneficiary of the failure and allowing the FECA beneficiary or the beneficiary's attorney 30 days from the date of the letter to file a statement of recovery. If good cause is demonstrated by the FECA beneficiary, OWCP/FEEWC can extend that time for 30 days. Should the FECA beneficiary or the beneficiary's attorney fail to file the SOR within the required time frame and OWCP/FEEWC has a copy of the settlement agreement or equivalent information regarding the gross recovery, OWCP/FEEWC shall prepare an approved statement of recovery based on the available information and the appropriate OWCP/FEEWC personnel shall sign it demonstrating the approval. The approved statement of recovery should be mailed by certified mail to the FECA beneficiary and the beneficiary's attorney if any within 30 days after the deadline established for filing the SOR. The approved statement of recovery becomes final unless objected to by the FECA beneficiary or the beneficiary's attorney within 30 days of the date the approved statement of recovery is mailed to the FECA beneficiary and the beneficiary's attorney if any. In filing his or her objections, the FECA beneficiary and the beneficiary's attorney shall request a formal determination as defined in the disputed issues procedures above (2-1100-8(i)) and set forth the reasons for the objections.

(2) Sanctions for Failing or Refusing to File an SOR. The duty to file a SOR is part of a beneficiary's duty to prosecute. Whenever OWCP/FEEWC determines that the beneficiary has failed to timely file a SOR, OWCP/FEEWC may at its discretion utilize the procedures and sanctions listed above in 2-1000-8(d)(2).

c. Allocation of Joint Recoveries. When a settlement or judgment is paid to, or for, one individual, the entire amount is reported as the gross recovery on Line 1 of the SOR. If a settlement or judgment is paid to, or for, more than one individual, or in more than one capacity, such as a joint payment to a husband and wife for personal injury and loss of consortium or a payment to a spouse representing both loss of consortium and wrongful death; the entire amount is still reported as the gross recovery on Line 1 of the SOR, from which certain deductions may be made to arrive at the amount to be allocated to the injured employee. If a judge or jury specifies the percentage of a contested verdict attributable to each of several plaintiffs, that division will be accepted.

In any other case, where a judgment or settlement is paid to or on behalf of more than one individual, a determination will be made concerning the appropriate amount to be allocated to the injured employee, and the FECA beneficiary will be advised of that determination. The FECA beneficiary may accept the determination or demonstrate good cause for a different allocation. Whether to accept a specific allocation is at the discretion of OWCP and FEEWC. Recurring circumstances involving allocations include:

(1) Loss of Consortium. Any proposed deduction (Line 4) from the gross recovery reported on Line 1 of a SOR by attributing a portion of the settlement or judgment to damages for loss of consortium by a family member must be approved by OWCP or FEEWC. A portion of a settlement or judgment may be attributed to a cause of action for loss of consortium and thus not included in the gross recovery of the FECA beneficiary set forth on a SOR only under the following conditions:

(a) State law in the relevant state provides a cause of action for loss of consortium for the family member to whom the recovery is attributed, and

(b) A cause of action for loss of consortium was actually asserted by that family member, either in the same action or in separate actions, or in negotiation of the settlement where a settlement was obtained without the actual filing of litigation.In support of a request for an allocation of a portion of a settlement or judgment to a spouse or a child or children, the FECA beneficiary must demonstrate that the above referenced conditions are met by citation to appropriate state case law or statutes and by submission of a copy of the complaint filed on behalf of the spouse and/or children, or other relevant evidence.

Upon receipt of such a request, absent unusual circumstances, an allocation of a joint settlement or judgment to loss of consortium in an amount of 25% or less for the spouse and 5% or less for each child up to a maximum of 15% for all children will be approved. In the event a FECA beneficiary seeks to justify an allocation in excess of these figures, it will be necessary for him or her to establish to the satisfaction of OWCP or FEEWC, through submission of evidence and legal argument, that a higher percentage is appropriate. Use of this formula is generally not appropriate in circumstances where a FECA beneficiary has died prior to settlement or judgment.

(2) Death Cases. Under appropriate circumstances, an injury to an employee of the United States can result in payments to the employee and/or his or her estate, spouse, and children. Thus, in the event an employee incurs an illness or injury covered by FECA and subsequently dies, separate causes of action may exist for his or her pain and suffering, for a spouse or a child's loss of consortium and for wrongful death. A recovery attributable to each of these causes of action must be reported by means of a SOR filed on behalf of the person receiving the recovery (e.g. estate, spouse or child) if that person received any benefits under FECA.

(a) A SOR filed on behalf of the deceased employee should report all funds received by the estate attributable to any causes of action possessed by the employee. This would include a cause of action for pain and suffering while the employee was alive.

(b) A surviving spouse who received FECA benefits on account of the death of a federal employee becomes a FECA beneficiary obligated to file a SOR upon receiving a third party recovery as a result of the death of his or her spouse. This would include a cause of action for the wrongful death of the employee. A surviving child who receives FECA benefits and a third party recovery is in the same situation and has the same obligation as the surviving spouse. A surviving spouse and/or child who receives an award for loss of consortium/society during the deceased employee's life is not required to file a SOR reporting that award or to include that recovery in the gross recovery reported on a SOR otherwise required to be filed.

c. Any apportionment made by the court or by a jury in a contested judgment will be accepted. However, joint judgments or settlements in other circumstances are subject to SOL review for purposes of determining any appropriate allocation for FECA purposes. FECA beneficiaries may utilize certain allowable percentages in any case involving a deceased federal employee and a surviving spouse or child where it is determined that the settlement or judgment represents causes of action attributable to more than one person.

(1) In order to utilize the following acceptable percentage allocations below in (2) and (3), a FECA beneficiary must demonstrate that:

(a) State law in the relevant state recognizes each cause of action to be utilized in the allocation; and

(b) Each cause of action was asserted by the family member, either in the same action or in a separate action, or in negotiations of the settlement in situations where a settlement was obtained without filing litigation.

(2) Upon such demonstration, in cases where causes of action were asserted for pain and suffering of the employee prior to his or her death and for loss of consortium, but not for wrongful death, the following standard allocation percentages will be allowed:

(a) 25 percent of the total to be allocated to the spouse;

(b) 5 percent of the total to be allocated to each child, up to a total of 15 percent for all children; and

(c) The remainder to be allocated to the deceased federal employee.

(3) In cases where causes of action are asserted for pain and suffering of the employee prior to his or her death, for loss of consortium, and for wrongful death, the following standard allocation percentages will be allowed:

(a) 15 percent of the total to be allocated to the spouse's claim for loss of consortium;

(b) 5 percent of the total to be allocated to each child up to a total of 10 percent for all children for loss of consortium;

(c) 35 percent of the remainder after subtraction of the amounts attributed to loss or consortium to be allocated to the deceased federal employee, survival claim; and

(d) 65 percent of the remainder after subtraction of the amounts attributed to loss of consortium to be allocated to the spouse, wrongful death claim.

d. Malpractice.

(1) Medical Malpractice. When a FECA beneficiary's FECA-covered injuries are aggravated by medical malpractice, any settlement or judgment relating to the malpractice is a recovery subject to §8132. In omputing the required refund, a claimant may request to utilize only the disbursements attributable to the medical malpractice in filing his or her SOR. The claimant must provide probative evidence and analysis to allow a determination to be made by OWCP/FEEWC regarding the amount of the disbursements that would have been paid absent the malpractice, in order to subtract that amount from the total disbursements actually paid.

Where none of the expenses properly attributable to the malpractice have been paid for or reimbursed by OWCP under the FECA, the claimant is still required to file a SOR for the malpractice recovery. This will normally result in a substantial third party surplus, which is unlikely to be absorbed (because any subsequent medical expenses and compensation benefits properly borne by OWCP would be attributable to the original compensable injury, rather than the injury caused by the malpractice).

(2) Legal Malpractice. A recovery from a third party for legal malpractice is not considered a recovery subject to § 8132.

e. Structured Settlements. One particular type of settlement agreement, generally referred to as a structured settlement, in which a third party makes an initial cash payment and also arranges, usually through the purchase of an annuity, for periodic payments over an extended period of time, raises a number of issues that must be carefully considered. The dollar amount to be included on Line 1 is the present value of the right to receive all of the payments included in the structured settlement, allocated in the case of multiple recipients in the same manner as single payment recoveries. See (20 CFR § 10.713). In situations where the periodic payments are funded by the purchase of an annuity by the responsible third party, the cost of the annuity to the third party will be accepted by OWCP and FEEWC as the present value of the right to receive the future payments. If the FECA beneficiary (or the beneficiary's attorney) wishes to use a different method of computing the present value, the beneficiary should make a written request for a formal determination on this issue. For purposes of filling out the SOR and making the required refund, it is the beneficiary's burden to provide probative evidence and analysis to allow a determination to be made by OWCP/FEEWC regarding the use of a different method of computing the present value of the right to receive periodic payments.

f. Refundable Disbursements. The refundable disbursements of a claim consist of the total money paid by OWCP from the Employees' Compensation Fund. However, charges for medical file review done at the request of OWCP are excluded. Any medical file review charges will automatically be deducted from the bill pay history.See (20 C.F.R. § 10.714). Continuation of pay is not compensation and is not subject to the subrogation and refund provisions of FECA. See Paul L. Dion, 36 ECAB 656 (June 19, 1985; petition for reconsideration denied, November 14, 1985).

Where the FECA beneficiary requests that the total disbursements be reduced by the cost of medical examinations required to be made available to the employee by the employing agency or at the employing agency's cost under a statute other than the FECA, the beneficiary has the burden of establishing that the examinations were so required. OWCP or FEEWC will notify the beneficiary in writing of its determination on this matter. See (20 C.F.R. § 10.714).

g. Attorney's Fees. Reasonable attorney's fees can be deducted from the gross recovery and from the refundable disbursements. Attorney's fee percentages are computed by dividing the amount of fees actually paidby the net recovery listed on Line 7. The percentage must be considered reasonable by OWCP or EEWC.Generally, any fee in excess of 40% would be deemed inappropriate and such deduction would be disallowed. If an attorney representing a FECA beneficiary reduces his or her fee from the amount originally agreed to by the FECA beneficiary, the reduced percentage would apply to the OWCP refundable disbursements.

h. Costs of Suit. The costs of suit, as allowed by OWCP or FEEWC, may be deducted on the SOR and must be itemized when submitted to OWCP or FEEWC. If such itemization of costs is not received by OWCP or FEEWC, those costs will be disallowed. Examples of costs which are permitted are out of pocket expenditures that are not part of the normal overhead of a law firm's operation, e.g., filing fees, travel expenses, record copy services, witness fees, court reporter costs for transcripts of hearings and depositions, postage, and long distance telephone calls. Examples of costs which are not permitted are normal overhead costs of a firm, e.g., in-house record copying, secretarial or paralegal services, and co-counsel fees. If, for example, a firm lists as a separate cost item a specific charge (for computer time or metered access time for legal research on Westlaw or some other legal research provide), and this charge is specific to the individual case, this would be an allowable cost. On the other hand, a cost item for a "percentage" of a firm's legal research costs would not be allowable, because this amounts to the firm attempting to recover for overhead costs.

To determine the amount to be listed on Line 10 of the SOR, multiply the court costs allowed by the percentage shown at Line 4, and subtract this amount from the allowed court costs. Multiply the balance by the percentage shown at Line 6 and enter this amount on Line 10. The United States does not contribute to or pay costs associated with the third party action. The FECA does not provide for or authorize the payment of costs other than as a deduction from the third party recovery. See Alonzo R. Witherspoon, 43 ECAB 1120, 1124 (1992).

i. Releases. In any case where a claimant requests that OWCP execute a release in connection with the subrogation aspects of a third-party case, that request should be referred to FEEWC. Since the United States is not a party to the underlying litigation between the claimant and the third party, it is not appropriate to execute a release of the liability of the third party to the FECA claimant. It is appropriate, however, to furnish the claimant a letter acknowledging compliance with the provisions of 5 U.S.C. §§ 8131 and 8132.

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10. Compensation Status Following Refund to the United States.

a. Under section 8116(a) of the FECA (5 U.S.C. § 8116(a)), a beneficiary may not receive compensation under the FECA simultaneously with salary, pay, or remuneration from the United States. With certain exceptions, a beneficiary must elect whether to receive benefits under the FECA, or benefits to which the beneficiary is entitled by virtue of the employee's status as a federal employee. A beneficiary may receive OPM benefits for any period for which a refund has been made, and is not considered in receipt of compensation during any such period (see Program Memoranda Nos. 90, 130, and 277).

b. Exhaustion of Surplus.

(1) During the period of exhaustion of the third party surplus, the beneficiary is not considered to be in receipt of compensation. If he or she elects OPM retirement benefits, payment of this annuity does not constitute a prohibited dual benefit. When the surplus has been exhausted, the beneficiary should be given the opportunity to elect between FECA benefits and the OPM annuity. Compensation benefits may be elected effective the day after the absorption of the third party surplus (see Program Memorandum No. 130).

(2) Where a beneficiary who has received a recovery from a third party has made the required refund, but subsequent events result in payment of compensation benefits (including medical benefits) for a period of time during which a third party surplus was in the process of being absorbed from continuing compensation entitlement, this results in an overpayment of compensation. Such an overpayment of compensation should be adjudicated and processed by OWCP according to the usual overpayment procedures set forth in Part 6 of the Procedure Manual.

(3) Where a beneficiary has received a third party recovery resulting in a surplus, this surplus is noted in the computer record, and the adjudication status code is changed to A0 to prevent the further payment of benefits. Compensation payments are calculated and continue to be charged against the surplus, as are medical expenses that have been paid by the claimant and submitted for reimbursement. Claimants should be encouraged to submit reimbursement requests for medical expenses as they are incurred, even though the amounts paid for such expenses will result in reduction of the surplus, rather than actual payment of additional benefits.

(4) Directed Medical Exams and File Reviews in Third Party Cases. Although benefits are not otherwise payable when a third party surplus exists, if the responsible CE finds it necessary, in the course of normal case management, to obtain a Second Opinion Exam, a Referee Exam, or a medical file review, then the costs will be directly paid by OWCP and any reasonable expenses incurred by the claimant will be reimbursed. These expenses should not be added to the surplus against future compensation entitlement.

(5) Vocational Rehabilitation in Third Party Cases. Vocational rehabilitation expenses are not payable if a third party surplus exists (see Program Memorandum No. 34). The claimant may pay for a rehabilitation counselor, training, and related expenses in an pproved vocational rehabilitation program. If approved by OWCP after its review, such expenses may be used to reduce the amount of the third party surplus.

(6) Section 8133(a) of the FECA provides differing percentage distributions depending on the existence of certain eligible beneficiaries; § 8133(b) specifies that entitlement to compensation ceases upon the occurrence of certain events; and § 8133(c) provides for reapportionment of compensation "on the cessation of compensation under this section to or on account of an individual." Only the occurrence of one of the events described in §8133(b) (e.g., remarriage of a widow prior to age 55) can trigger the reapportionment of compensation among the other beneficiaries. The stoppage of compensation payments to an eligible beneficiary to offset a third party surplus is not one of the events enumerated in § 8133(b), and thus does not constitute a basis for reapportionment under §8133(c). The percentage rates to be used are those specified in § 8133(a), regardless of whether the compensation otherwise payable to another eligible beneficiary is being credited against a third party surplus. As an example, if a widow participated in a third party recovery and is offsetting a third party surplus, and a minor child did not participate in the recovery, or participated but has offset his or her portion of the surplus, compensation for the child would continue to be paid based on 15 percent of monthly pay. See Beverly Grunder, claiming as widow of Franklin W. Grunder, 36 ECAB 456 (1985).

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11. Establishment of Debt and Debt Management. When a debt to the United States is established by OWCP/SOL's approval of a SOR, OWCP/SOL has an obligation to collect the debt. Each office (DO, FEEWC) should maintain a log of every debt (i.e., a collection docket) which has been established as a result of a recovery from a third party.

a. OWCP District Office Responsibility for Debt Collection in Non-Referred Cases. Upon establishment of the debt, OWCP should advise the claimant that a debt is owed to the United States, and make an initial demand for payment of this debt. For non-referred cases, the DCE is responsible for releasing the initial demand letter. This initial demand letter must notify the debtor of:

(1) The basis for the debt;

(2) The applicable standards for imposing interest, penalties, or administrative costs;

(3) The date by which payment should be made;

(4) The name, address and telephone number of a contact person or office within the agency;

(5) That the debtor may enter into a mutually agreeable written repayment agreement; and

(6) That the debtor may make a written request for a review of the determinations regarding the amount of the debt, its past-due status, and its legal enforceability.

The initial demand letter in any non-referred case should also note that, unless payment is received within 30 days, interest shall accrue as of the date of the initial demand letter. If payment is not received on such case, a second letter will be released notifying the claimant that the debt remains outstanding and that entitlement to compensation is subject to suspension for failure to satisfy the debt. The computer record will be updated to reflect the fact that the debt remains unpaid. If a claim for further benefits is received prior to the payment of the debt, the CE should consider whether to issue a formal decision suspending or forfeiting entitlement to benefits, under 20 C.F.R. §10.708.

Pursuant to 20 C.F.R. § 10.715, interest shall accrue, at the U.S. Treasury rate (Current Value of Funds), on the refund due to the United States from the date of the request, if the refund is not submitted in full within 30 days of the receipt of the request for payment. OWCP or SOL may waive the collection of interest in accordance with 29 C.F.R. § 20.61.

b. SOL Responsibility for Debt Collection in Referred Cases.

(1) For referred cases, FEEWC should advise the claimant and/or the attorney that a debt is owed to the United States, and make an initial demand for payment of this debt. The initial demand letter must notify the debtor of:

(a) The basis for the debt;

(b) The applicable standards for imposing interest, penalties, or administrative costs;

(c) The date by which payment should be made;

(d) The name, address, and telephone number of a contact person or office within the agency;

(e) That the debtor may enter into a mutually agreeable written repayment agreement; and

(f) That the debtor may make a written request for a review of the determinations regarding the amount of the debt, its past-due status, and its legal enforceability.

(2) The initial demand letter in any referred case should also note that, unless payment is received within 30 days, interest shall accrue, at the U.S. Treasury rate (Current Value of Funds), as of the date of the initial demand letter. If payment is not received on such case within 30 days, a second letter should be released notifying the debtor that the debt remains unpaid, and that the attorney, firm, and client are subject to the provisions of 5 U.S.C. § 8132 which apply to any individual who disburses funds received from a third party recovery without satisfying, or assuring the satisfaction of, the interest of the United States. If payment is not received within 30 days of this second letter, FEEWC should make a determination whether to collect the debt, plus applicable interest, through any of the following ptions:

(a) Periodic payments (installment payment plan);

(b) Deduction from continuing compensation;

(c) Suspension or forfeiture;

(d) Referral to the Department of the Treasury;

(e) Referral to the Department of Justice; or

(f) Salary offset.

(3) The following is a concise description of the details regarding these six options for FEEWC collection of debts:

(a) Periodic payments – if a debt can be collected through periodic payments within three years, FEEWC may enter into an agreement with the debtor for periodic payments. Such agreements shall provide that the payments will be made directly to OWCP; once the agreement is signed, FEEWC will notify OWCP of the terms of the agreement, and will close the file and delete it from the collection docket. OWCP will then enter the debt into its system.

(b) Deduction from continuing compensation – in appropriate cases, FEEWC will prepare a memorandum to the DCE recommending collection of the debt from continuing compensation entitlement. On receipt of such a memorandum, the DCE will enter the debt into the system, will request financial information from the claimant, and will then make a determination regarding the amount to be collected from each continuing compensation payment. In making such determination, the DCE should follow the procedures set forth in the Federal (FECA) Procedure Manual, Part 6-Debt Management, except that the waiver provisions of Part 6 do not apply to these determinations. After referral to the DCE, FEEWC will close the file and remove it from the collection docket.

(c) Suspension or forfeiture – where FEEWC concludes that suspension or forfeiture is an appropriate response to nonpayment of the debt, FEEWC will prepare a memorandum to the DCE recommending suspension or forfeiture. After evaluation of this memorandum, the DCE will issue a formal decision with appropriate appeal rights.

(d) Referral to Department of the Treasury – where payment is not received within 60 days of the date of the initial demand letter, and FEEWC concludes that referral to the Department of the Treasury is appropriate, FEEWC will send a third letter which notifies the debtor(s) of its intent to collect the debt by referral to Treasury, and will prepare a memorandum to OWCP's National Office requesting referral of the debt to Treasury for collection. FEEWC will prepare the necessary background materials and refer these materials to OWCP.The debt will remain on the FEEWC's collection docket until SOL receives notice from Treasury that the debt has been collected, or that Treasury has ceased collection efforts. Where Treasury notifies OWCP/FEEWC that it has ceased collection efforts, FEEWC will make a determination whether to close the file and remove it from the collection docket.

(e) Referral to the Department of Justice – where payment is not received within 60 days of the date of the initial demand letter, and FEEWC concludes that referral to the Department of Justice is appropriate, FEEWC will prepare a memorandum to the Department of Justice, and will submit a Claims Collection Litigation Report to the Department of Justice Intake Facility in Silver Spring, Maryland. With respect to filing suit to enforce collection of a debt, 28 U.S.C. § 2415(a) provides that any such action must be filed within 6 years after the right of action accrues or within 1 year after a final administrative decision has been rendered on the matter, whichever is later. The debt will remain on the FEEWC collection docket until FEEWC receives notice from Justice that the debt has been collected, or that Justice has ceased litigation efforts. Where Justice notifies OWCP/FEEWC that it has ceased litigation efforts, FEEWC will make a determination whether to close the file and remove it from the collection docket.

(f) Salary offset – In an appropriate case, FEEWC may initiate salary offset proceedings, and must follow the Department of Labor Salary Offset regulations set forth in 29 C.F.R. §20.74 through 20.90.

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12. USPS Cases.

a. General responsibilities for the processing of third party cases under 5 U.S.C. §§ 8131 and 8132 are outlined above in FECA PM 2-1100.3. However, to more efficiently and effectively accomplish the stated purpose of the FECA with regard to third party recoveries, the Director of OWCP has entered into a memorandum of agreement with the USPS whereby the OWCP has agreed that the USPS may supervise the third party aspects of certain cases. The USPS cannot enter into litigation on behalf of the United States under 5U.S.C. § 8131, and may not make direct referral to the Department of Justice for litigation on behalf of the United States.

The USPS may pursue the collection of damages from the responsible third party by administrative means, including obtaining the employee's assignment to the USPS of any right of action the employee may have to enforce the liability, provided that such assignment is voluntary on the part of the employee. The USPS cannot require the employee to make such assignment. The USPS must follow the guidelines established by OWCP for processing any funds recovered from the third party, including the use of the OMB-approved SOR (Form EN-1108).

Pursuant to the memorandum of agreement, the USPS supervision of the third party aspects of FECA cases is limited to cases of traumatic injury, except those traumatic injury cases which fall within one or more of the following categories:

(1) Where the traumatic injury results in the death of the employee;

(2) Where the injury occurred outside of the United States or Canada;

(3) Where the injury occurred when the employee was a passenger in a common carrier conveyance;

(4) Where malpractice or product liability is involved;

(5) Where injuries are sustained by more than one employee in the same incident (group injuries).

b. The USPS is responsible for sending OWCP an initial status report within 3 months of the date the employee files any notice of injury on which the official superior has marked the injury as being caused by a third party. This report may be a copy of correspondence to the injured worker or memorandum directed to OWCP documenting the initial actions of the USPS regarding pursuit of recovery from the third party. If the USPS has decided not to pursue recovery from a third party, this should be stated in the initial report. If the USPS does pursue recovery, then it should provide a status report each 6 months after the initial report.

c. Responsibilities of the DCE for USPS Cases.

(1) The DCE takes no action unless the USPS reports it is pursuing recovery, or the DCE receives information from some other source that the FECA beneficiary is pursuing recovery.

(2) If information is received that the third party aspect has been or will be pursued by the USPS, the computer record will be updated to reflect this. The DCE will monitor the case on a periodic basis (every 6 months) until the case is closed. During this period, the DCE will cooperate with the USPS and will provide any needed assistance, including the furnishing of a statement of disbursements (Form CA-161) within five working days of receipt of a request from the Postal Service.

(3) If information is received indicating the FECA beneficiary is pursuing recovery, the DCE will send a letter to the USPS asking for the status. If the USPS responds that it is pursuing recovery, the DCE proceeds as described above. If the USPS fails to respond within 30 days or states it is not pursuing recovery, then the DCE assumes jurisdiction of the case. The DCE should proceed in accordance with the established procedures for initiating third party recovery action, and so notify the USPS.

(4) If the USPS refers the third party case back to OWCP for any reason, the DCE will accept the referral without question and follow existing procedures for regular third party cases.

(5) While the third party aspect of a case is being pursued by the USPS, the case should not be referred to the FEEWC until the USPS has exhausted its options and the third party activity comes back within the jurisdiction of the OWCP, unless referral to the FEEWC is otherwise indicated. An example of such a situation would be if an attorney advises that a settlement is imminent but there are communication or logistical issues with the USPS. In this instance, the DCE should assume jurisdiction for OWCP, provide disbursement figures and make immediate referral to the FEEWC.

d. Settlements.

(1) If, while the third party aspect is being handled by the USPS, information is received that a recovery or settlement has been received and will result in a third party surplus, the DCE will suspend all payments and will furnish the USPS with a final disbursement statement.

(2) After settlement has been made, the USPS will furnish the DCE with a completed SOR (Form EN-1108) and a check representing the refund of OWCP disbursements. Following receipt, the DCE will finalize the process in accordance with established procedures, including the release of Ltr.CA-1044 or Ltr. CA-1120, as appropriate.

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Chapter 2-1200, Representatives' Services

Paragraph and Subject

Date

Trans. No.

Table of Contents

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1. Purpose and Scope

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2. Authority and Citations

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3. Correspondence with Representatives

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4. How Fees for Services are Paid

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5. Fees Which May Not Be Approved

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6. Fee Approval

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7. Authority to Approve Fees

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8. Timely Case Action

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9. Fee Requests in Disallowed Claims

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10. Inquiries From State Bar Associations Relating to FECA Representative

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12-08

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1. Purpose and Scope. This chapter sets forth the procedures to use when advising representatives of the status of cases and the requirements of the Federal Employees' Compensation Act (FECA), as well as the procedures and standards to use when evaluating a representative's fee application.

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2. Authority and Citations.

a. Under 5 U.S.C. 8127(a), and in accordance with 20 C.F.R. §10.700, a claimant may authorize an attorney or other individual to represent his or her interests in any proceeding before OWCP.

b. 20 C.F.R. §10.700 also provides the following guidance with regard to representatives:

(1) A statement signed by the claimant is required to establish the representative's appointment. 20 C.F.R. §10.700(a).

(2) As there can only be one representative at any given time, OWCP will not recognize another person as representative until the claimant has withdrawn the authorization of the first individual. 20 C.F.R. §10.700(b).

(3) If the representative is an attorney, OWCP may communicate with any member of that attorney's recognized law firm. 20 C.F.R. §10.700(b).

c. 20 C.F.R. §10.701 sets forth restrictions on who may act as a representative. A claimant may authorize any individual to act as his or her representative, provided that the individual's service would not violate any applicable provision of law (such as 18 U.S.C. 205 and 208).

(1) A Federal employee may act as a representative only:

(a) On behalf of immediate family members, defined as a spouse, children, parents, and siblings of the representative, provided no fee or gratuity is charged; or

(b) While acting as a union representative, defined as any officially sanctioned union official, and where no fee or gratuity is charged.

(2) Should any documentation be received identifying a representative as a Federal employee, the claims examiner (CE) should issue a letter to the claimant inquiring as to the nature of the relationship between the claimant and representative, and whether remuneration is involved for the representative's services. If necessary, the representative's federal agency may be contacted for additional information.

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3. Correspondence with Representatives.

a. Once OWCP has received the claimant's signed authorization letter, the following actions should be taken:

(1) The representative's name and address should be entered into the case management system.

(2) Both the claimant and the designated representative should be advised of the procedures relating to fee applications. The "attorney fee" letter in Correspondence Library should be used for this communication. At that time, if the representative has asked specific questions pertaining to the status of the case, the CE should prepare a letter responding to the issues presented. If information is needed from the claimant, the letter should also advise the representative of the information needed.

b. Copies of Letters. Although the FECA and its implementing regulations do not require every communication with a claimant to be copied to the representative, the CE should make every effort to copy the representative on substantive correspondence that may affect a claimant's entitlement to compensation. This includes development letters that specify deficiencies in the evidence, or notices of OWCP-directed medical examinations.

(1) Regulatory Citations.

(a) 20 CFR §10.115 states that OWCP "may send a request for additional evidence to the claimant and to his or her representative."

(b) 20 CFR §10.119 states that "OWCP will consider all evidence submitted appropriately, and OWCP will inform the employee, the employee's representative, if any, and the employer of any action taken."

(c) 20 CFR §10.127 states that "a copy of the decision will also be mailed to the representative." See also 20 CFR §10.440; §10.617.

(d) 20 CFR §10.912 states that OWCP "may send any request for additional evidence to the claimant and to his or her representative" in the FECA death gratuity process.

(2) Copies of medical examination notices and notices of proposed decisions and final decisions should be sent to both the claimant and the authorized representative. 20 C.F.R. §10.127 ("If the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the representative."); see, S.T., Docket No. 11-723 (issued December 16, 2011) (ECAB held that OWCP did not properly issue the termination decision because it did not send a copy of that decision to the authorized representative on that date); I.H., Docket No. 09-141 (issued August 6, 2009) (ECAB held that appellant's counsel was not properly notified of Dr. Taylor's July 19, 2007 impartial medical examination, thereby rendering the corresponding medical report insufficient to resolve the conflict of medical opinion, and remanded the case for referral of appellant for another impartial medical examination to resolve the existing conflict of medical evidence); Travis L. Chambers, 55 ECAB 138 (2003) (ECAB held that decisions under the FECA are not deemed to have been properly issued unless both appellant and the authorized representative have been sent copies of the decision).

(3) One document that a representative is not copied on is the CA-1032 form that requires a claimant to report earnings, employment activities, third party settlements, other government benefits, and changes in dependents. This form is generated for cases on the periodic roll and failure to complete this form may result in suspension of compensation until OWCP receives the form. Although a claimant may seek advice or counsel from a representative on completion of this form, the FECA statute places the responsibility to report earnings directly on the claimant. Completion of this form (which may form the basis of a criminal prosecution in the event that false statements are made by the claimant) remains the sole responsibility of the claimant, and the form must be signed by the claimant.

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4. How Fees for Services are Paid. A representative may charge the claimant (except as noted above in 2.c(1) - a federal employee who is an immediate family member or is acting as a union representative) a fee in addition to other costs associated with the representation before OWCP. The claimant is solely responsible for paying the fee and other applicable charges. OWCP will not reimburse the claimant, nor is OWCP in any way liable for the cost of the representation. 20 C.F.R. §10.702(a).

a. Under 5 U.S.C. 8127(b), and in accordance with 20 C.F.R. §§10.702(b) and 10.704, fees for representatives' services must first be approved by the Secretary. Fees may not be collected by the representative without such approval. Collecting a fee without this approval may constitute a misdemeanor under 18 U.S.C. 292. A representative can be prosecuted under 18 U.S.C. 292, which carries criminal penalties upon conviction of not more than $1000 or imprisonment not to exceed one year, or both.

b. Funds deposited into an appropriately segregated account, such as a client trust or escrow account, until receipt of the Secretary's approval will not be considered receipt or collection of a fee by the representative. Under these circumstances, the representative's claim for services will be considered valid.

c. OWCP is not prohibited from approving a fee after a fee has been collected. In Eugene F. Carbonneau, 39 ECAB 392 (1988), the ECAB ruled that applicable law only provides that a fee collected prior to approval is not a valid fee, and that the person who collected the fee is subject to criminal prosecution. Consequently, OWCP is permitted to approve a fee even when the representative is withholding money from the claimant in violation of 18 U.S.C. 292 and 20 C.F.R. §§10.702(b) and 10.704. As ECAB noted in the above decision, the "remedy against a representative who collects a fee without the prior approval by the Office is not withholding approval of a fee but rather the criminal sanctions" imposed by 18 U.S.C. 292.

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5. Fees Which May Not Be Approved. OWCP may not approve fees for certain services or in certain situations.

a. Fees for service in matters which have no relation to the claim, or for work done before another government agency or before the ECAB, will not be approved. Representatives who inquire about payment for work done before the ECAB should be instructed to submit their request for fee approval to the ECAB. See 20 C.F.R. §501.9(e).

(1) Administrative expenses (mailing, copying, messenger services, travel, and the like, but not including secretarial services, paralegal, and other activities) need not be approved before the representative collects them. 20 C.F.R. §10.702(b). However, if they are included in the fee application, the representative should be informed that OWCP does not rule on administrative expenses. Consequently, such expenses must not be included in any fee total that is approved by OWCP. See Francesco C. Veneziani, 48 ECAB 572 (1997) (ECAB ruled: "The matter of expenses are a matter between appellant and his attorney and are not the appropriate subject of a fee application."). A representative may, however, use the services of a paralegal, legal assistant, legal intern, or secretary and include the charges for those services in the fee request.

(2) Time spent in preparing the request for fees, writing letters, holding conferences, or any other activity connected with the preparation and filing of a claim for fee approval may not be considered. See Robert G. Anderson, 21 ECAB 344(1970), and William Lee Gargus, 25 ECAB 187 (1974). Additionally, there is no recognition of fee work performed before a Federal Court or spent in preparing and prosecuting a Federal tort claims case. See Cecilia Kalinski, 47 ECAB 160 (1995).

b. "Contingency fees are not allowed in any form." 20 C.F.R. §10.702(a). OWCP does not recognize any contract or agreement between representatives and clients for payment of a fee for services on a contingency basis (any agreement where a client agrees to pay a representative a percentage of any monies paid or recovered as part of an OWCP claim).

Pursuant to 20 C.F.R. §10.703(a), a fee application must be in the form of an itemized statement showing the representative's hourly rate, the number of hours worked, and specifically identifying the work performed and a total amount charged for the representation (excluding administrative costs). Therefore, it is unacceptable for a representative to create what amounts to a contingency fee in regard to any FECA matter, including schedule awards, or to manipulate extremely high hourly rates after the fact in a manner that guarantees a certain percentage fee. Such arrangements essentially amount to contingency fee agreements and do not comport with OWCP's procedural requirements. See Angela M. Sanden, Docket No. 04-1632 (issued September 20, 2004) (ECAB found the representative's contingency fee arrangement illegal and ruled that the representative must calculate the money owed for services rendered on an hourly basis).

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6. Fee Approval. See 20 C.F.R. §10.703.

a. Jurisdiction. It is sometimes the case that services have been provided before both the custodial district office and the Branch of Hearings and Review during the life of a claim. As a result, representatives will often present one application for fee approval containing services performed before both the district office and the Branch of Hearings and Review. It is not uncommon that the application will be presented to either or both of these offices. In light of this, the jurisdiction of the case record at the time the fee application is received will determine who should consider the request and issue the decision. There is no need to split fee charges based upon where services were provided. If, however, questions arise regarding the propriety of any contested charge for services performed before another office, that office should be consulted.

b. Fee application. Pursuant to 20 C.F.R. §10.703(a), the fee application must contain each of the items listed below.

(1) An itemized statement showing:

(a) The representative's hourly rate,

(b) The number of hours worked,

(c) A description of the specific work performed, and

(d) The total amount charged for the representation, exclusive of administrative costs.

(2) A statement of agreement or disagreement with the amount charged, signed by the claimant. The statement must also acknowledge that the claimant is aware that he or she must pay the fee, and that OWCP is not responsible for paying (or reimbursing) the fee or other costs associated with the representative's services. See 20 C.F.R. §10.703(a)(2).

c. Should an application be submitted which is missing any item cited in 6.b(1) above, it will be returned to the representative with a letter advising him or her to resubmit the fee application with the identified missing item(s).

However, if the application is missing the claimant's signed statement of agreement or disagreement (as described in 6.b(2) above), the CE must submit the fee application directly to the claimant and provide him or her with an opportunity (30 days) to agree with, or submit a statement or evidence disputing, said application. If a statement is received, the CE will follow the procedures outlined at either 6.e or 6.f below, depending on the nature of the claimant's response. If no response is received, the CE will then either approve or deny the fee request on the basis of "whether the amount of the fee is substantially in excess of the value of services received" by evaluating the factors outlined at 20 C.F.R. §10.703(c). (See also 6.f below.)

d. Any fee application submitted by a representative in the form of a contingency fee must be returned to the representative with instructions to calculate the money owed for services rendered on an hourly basis and resubmit the fee application in the proper format as described in 6.b above. When the representative resubmits the fee request, the attorney must submit a contemporaneously dated statement from the claimant that acknowledges concurrence with the fee and lists the hourly rate being charged in order for the deemed approved process to apply. 20 C.F.R. §10.703(b) ("no contingency fee arrangement many be considered approved through this process.")

e. Deemed Approved Applications (Approval Where There is No Dispute). Where a proper fee application is accompanied by a signed statement indicating the claimant's agreement with the fee (as described in paragraph 6.b(2)), the application will be deemed approved. See 20 C.F.R. §10.703(b).

While this is similar to the procedures prior to the regulatory change effective January 4, 1999, in those instances where the claimant has specifically agreed to the charges as submitted by the representative, OWCP personnel are no longer required to evaluate the services provided or the hourly rate at which the claimant was charged in order to determine the propriety of the representative's fees. Instead, the fees will be deemed approved, and a simple notice confirming such approval will be issued to avoid any confusion on this matter.

Note: A contingency fee arrangement does not comport with OWCP fee approval requirements and cannot be "deemed approved" even where the claimant does not object.

f. Disputed Requests. Where the claimant disagrees with the amount of the fee, as indicated in the statement accompanying the application, OWCP will evaluate the objection and issue a formal decision that approves, modifies, or denies the fee. 20 C.F.R. §10.703(c). In order to make this determination, OWCP will provide a copy of the fee request to the claimant and ask him or her to provide any additional information in support of his or her objection within 15 days from the date the fee request was forwarded to the claimant. See 20 C.F.R. §10.703(c)(1).

After that period has passed, OWCP will evaluate any information received to determine whether the amount of the fee is substantially in excess of the value of the services received by examining the following factors:

(1) Usefulness of the Representative's Services. The CE should take into account the advantages which the claimant received by having a representative. What was at issue? Was the representative, by reason of knowledge, experience, etc., able to accomplish that which would have been difficult or unlikely for the claimant to accomplish without such aid? The impediments to the claim, and the evidence submitted to overcome them, should be discussed briefly, as well as any other pertinent facts about the worth of the representative's services.

(2) The Nature and Complexity of the Claim. Representatives appear in all types of cases, from the routine and simple to the unusual and complicated. The decision should discuss whether any unusual or complex questions of law or medicine were involved, discuss the issues in general, and describe what the representative did to overcome the defects in the claim. Any unusual measures needed to obtain factual or medical evidence should be noted.

(3) The Actual Time Spent on Development and Presentation of the Claim. The CE must consider not only the time spent in conferences with the claimant (and others) which had a bearing on the claim, but the time spent on investigations, study of the case record, travel, and appearances at hearings as well. In addition, the accuracy of the representative's description of letters written and phone calls made to OWCP, as well as any other evidence submitted, should be verified by a thorough review of the case record. The time claimed by the representative should be commensurate with the actual services performed. The CE should bear in mind, however, that the ECAB has found that a representative has broad latitude in exercising professional judgment in connection with the preparation of a client's case. A representative has the responsibility to study and research the client's case.

Such work, insofar as it is within reasonable bounds, is entitled to consideration in fixing the fee, even though all the work may not prove helpful in producing relevant evidence or legal precedent. The test of necessary services is whether such services seemed reasonably necessary at the time they were performed (Anna Palestro/Vincent Palestro), 15 ECAB 241 (1964)).

(3) Customary local charges for similar services. The CE should also consider the customary charges for similar services in the representative's locality. Consequently, in the event of a disputed fee, the CE may ask the representative to state the customary local charges for services of the type he or she has rendered. If necessary, the CE may request this information from the local bar association, state compensation boards and commissions, or any other appropriate source, including Internet research that is documented.

g. Fee Reduction. In each instance where a claimant disputes the representative's fee request and files an objection (the signed statement of disagreement is sufficient), OWCP will make a formal determination and issue an appropriate decision. This decision will include appeal rights for both the claimant and the representative. 20 C.F.R. §10.703(c)(2).

Therefore, in these instances, OWCP will issue a letter to the representative explaining the reasons for the proposed fee reduction, and advise him or her to submit evidence or argument against the reduction within 30 days from the date of the letter. K.C., Docket No. 06-2130 (issued July 24, 2007) (ECAB held that where OWCP proposes to reduce a requested fee for representative's services, including the hourly rate the representative may charge, the representative is entitled to notice of the reasons for the proposed reduction and an opportunity to respond with written comments and by affidavit prior to decision.); Edgar Aikman, 32 ECAB 1570 (1981)(ECAB ruled: "where the Office proposes to reduce a requested fee, including the hourly rate the representative may charge, the representative is entitled to notice of the reasons for the proposed reduction and an opportunity to respond with written comments and by affidavit prior to a decision [being issued]").

If the representative's services are totally or mostly of a routine nature, and there is no novel point of law or medicine, the determination of a reasonable fee rests largely upon the time spent in necessary services on the claimant's behalf. In these situations, the CE should prepare an annotated copy of the representative's itemized statement, or an entirely separate statement showing the time claimed but not approved, and the reasons for the reduction. The statement should accompany the formal decision, and both the claimant and the representative should be provided a copy.

In all cases, the decision must clearly show the precise reasons for the final determination. Rationale must be given for any reduction in hours or exclusion of other items, such as expenses. If the claimant contested the amount of fee requested as excessive or unreasonable, the decision must also provide rationale for the amount of fee allowed.

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7. Authority to Approve Fees.

a. District office personnel are authorized to evaluate and approve disputed fee requests in the following amounts:

(1) GS-12 Claims Examiners: Up to $10,000

(2) Senior Claims Examiners: Up to $15,000

(3) Supervisory Claims Examiners: Up to $50,000

(4) Assistant District Director or District Director: Over $50,000

b. The Supervisory CE may delegate in writing the authority to approve disputed fee requests to GS 9-11 CEs in amounts up to $5,000.

c. The formal decision should be signed and released by a CE, Senior CE, Supervisory CE, Assistant District Director, or District Director, depending upon who approved the fee request.

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8. Timely Case Action.

a. Notice of Award. Where the representative has submitted an application for fee approval prior to or at the time of submission of the evidence needed to reach a decision in the case, the CE should issue the notification of case acceptance, the notice of payment of compensation, or notice of award along with the ruling on the fee request. Compensation should be coordinated with the decision on the fee request when possible. Otherwise, the representative's chances of collecting the fee may be jeopardized.

b. Payment. Compensation checks will not be forwarded routinely to a representative, either with or without the claimant's approval, since this would provide an element of assistance in collecting the fee. Such assistance is prohibited by the regulations and the spirit of 5 U.S.C. 8130, exempting compensation payments from the claims of creditors.

In some instances, however, it may be appropriate to send the compensation check in care of another party, i.e. court-appointed guardian, executor, or administrator of an estate. In questionable instances, the CE should refer the case to the District Director with an appropriate recommendation. Additionally, under 20 CFR §10.424, OWCP may appoint a representative payee to receive benefits for the claimant's use where a beneficiary is incapable of managing his or her benefits. The District Director should seek advice from the Office of the Solicitor as needed.

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9. Fee Requests in Disallowed Claims. Where a compensation claim is disallowed, a formal decision will be made on the representative's fee application. It will be sent to the representative with a copy of the disallowance. In such cases, a reasonable representative's fee may be approved after full consideration is given to all factors discussed in paragraph 6 above. The fact that the compensation claim is disallowed is insufficient to deny a representative a reasonable fee for services necessary to pursue the claim. See Robert D. Shaw, 30 ECAB 257 (1978).

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10. Inquiries From State Bar Associations Relating to FECA Representative. Where an inquiry is received from a State Bar Association relating to a FECA representative's conduct, the CE should provide the applicable citations to regulations and procedures concerning representative fees to promote understanding of the process. The CE should exercise utmost care regarding the disclosure of evidence from the FECA file. In most instances, especially where the inquiry was the result of a complaint from the individual claimant who is the subject of the file, the investigating authority will have already received a Privacy Act waiver signed by the claimant, which authorizes OWCP to disclose information from the file to the investigator. However, the CE should ensure that a copy of the waiver is placed into the case file. If there are any questions about the parameters of the waiver, the CE should consult with the supervisor or the District Director, who may request assistance from the Solicitor's Office. The fact that the State Bar Association or other investigatory body has authority to conduct an investigation does not automatically mean that information from the FECA file may be disclosed.

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Chapter 2-1700, Special Act Cases

Paragraph and Subject

Date

Trans. No.

Table of Contents

01/07

07-02

1. Purpose and Scope

11/90

91-04

2. Policy

11/90

91-04

3. Responsibilities

11/90

91-04

4. Peace Corps

11/90

91-04

 

02/93

93-11

 

11/93

94-03

 

09/95

95-37

 

01/07

07/02

5. Volunteers in Service to America (VISTA)

11/93

94-03

6. Job Corps

11/90

91-04

7. D.C. Metropolitan Police Reserve Corps

06/95

95-26

 

01/07

07-02

8. National Fisheries Observers

08/02

02-11

 

05/03

03-04

 

01/07

07-02

Exhibits

   

1. Annual Pay Rates For Computing Compensation of Peace Corps and VISTA Volunteers

11/98

99-05

 

01/07

07/02

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1. Purpose and Scope. From time to time laws are passed which extend benefits of the FECA to certain workers who are not regular employees of the U.S. government as defined in 5 U.S.C. 8101. Some of these workers are now considered civil employees, but benefits are limited by the legislation which provided coverage. This chapter addresses procedures for the development, adjudication, and management of claims filed under such laws.

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2. Policy. Claims discussed in this chapter are adjudicated according to the procedures established for Federal employees, except for the modifications and special instructions described below.

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3. Responsibilities. Most special act cases are jacketed, adjudicated and managed in the National Operations Office (District Office 25). Some of the cases are forwarded to the appropriate district office (DO) after adjudication, and some are jacketed, adjudicated and managed in the DOs. See FECA PM 1-100.5 for case jurisdiction. Guidelines for developing claims are found in FECA PM Chapters 2-800 to 2-805.

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4. Peace Corps.

a. Statutory Authority.

(1) The Peace Corps was established on September 22, 1961 by Public Law 87-293, known as the "Peace Corps Act." It authorizes the enrollment of qualified citizens and nationals of the United States as "volunteers" and "volunteer leaders" for service abroad in interested countries and areas, to help the people of such countries and areas in meeting their needs for trained workers, and to help promote a better understanding of the American people. Section 5 U.S.C. 8142 addresses Peace Corps claims within the context of the FECA.

(2) OWCP is principally concerned with the following sections of the Peace Corps Act:

(a) Section 5(d), which provides: "Volunteers shall be deemed to be employees of the United States Government for the purposes of the Federal Employees' Compensation Act (39 Stat. 742), as amended: Provided, however, That entitlement to disability compensation payments under that Act shall commence on the day after the date of termination of service. For the purposes of that Act-

"(1) volunteers shall be deemed to be receiving monthly pay at the lowest rate provided for grade 7 of the general schedule established by the Classification Act of 1949, as amended, and volunteer leaders (referred to in section 6 of this Act) shall be deemed to be receiving monthly pay at the lowest rate provided for grade 11 of such general schedule; and

"(2) any injury suffered by a volunteer during any time when...located abroad shall be deemed to have been sustained while in the performance of...duty and any disease contracted during such time shall be deemed to have been proximately caused by employment, unless such injury or disease is caused by willful misconduct of the volunteer or by the volunteer's intentions to bring about the injury or death of...self or of another, or unless intoxication of the injured volunteer is the proximate cause of the injury or death."

(b) Section 6, which states that all provisions of the Act applicable to volunteers shall be applicable to volunteer leaders and the term "volunteers" shall include "volunteer leaders."

(c) Section 7, which provides for the employment of a staff of civil employees to carry out the provisions and purposes of this legislation.

(d) Section 8(a), which provides (1) for appropriate training for applicants for enrollment as volunteers and volunteer leaders, (2) the enrollment period shall include the period of training, and (3) all provisos of the Act relating to volunteers and volunteer leaders are applicable to applicants for enrollment during the period of training.

(e) Section 10(a)(3), which authorizes the acceptance of voluntary service in the name of the Peace Corps and employment of such voluntary services in furtherance of the purposes of the Peace Corps Act.

(f) Sections 12 and 13, which provide for the appointment of a Peace Corps National Advisory Council and employment of experts and consultants.

(g) Section 25(a) and (b), which define the term "abroad" to mean any area outside the several states and territories and the District of Columbia for injuries and deaths prior to September 13, 1966.

Public Law 89-572 amended section 25(b) by striking the words "and territories" from the law September 13, l966 and thereafter.

In 1974, Section 8142(c)(2) of the FECA was amended to designate Peace Corps Volunteers with one or more minor children as "Heads of Household." By virtue of this amendment, these volunteers are entitled to compensation at the same rate as the Volunteer Leaders. Reports of injury will indicate whether a claimant is a Volunteer, Head of Household, or Volunteer Leader.

b. FECA Coverage. The Peace Corps Act extends the benefits of the FECA to Peace Corps Volunteers, Peace Corps Volunteer Leaders, and Heads of Households. For the purposes of this paragraph all three groups will be referred to as volunteers.

(1) Under section 8101(1)(B) of the FECA, members of the Peace Corps National Advisory Council and the experts and consultants provided by sections 12 and 13 of the Peace Corps Act have the protection of the FECA while performing their assigned duties. However, decisions concerning these individuals will be made on a case-by-case basis, and an opinion from the Solicitor of Labor will be requested if necessary.

(2) Staff Spouses.

(a) The spouses of Peace Corps staff members serving in foreign countries have the protection of the FECA while performing service or engaged in official travel in keeping with the terms of PECTO CA-39, an airgram issued by the Peace Corps on April 23, 1964. In addition to Form CA-1 or CA-2, a copy of the travel authorization and the information outlined in Form CA-1014 will be required. Performance of duty will be determined on a case-by-case basis. The pay rate for computing compensation will be determined in the manner used for persons coming within the scope of section 8101(1)(B) of the FECA.

(3) Staff Employees. These employees fall within the definition of "employee" outlined in 5 U.S.C. 8101(1). They have full coverage of the FECA, and their claims are adjudicated in the district office having jurisdiction over the place of employment. See FECA PM 1-100.4.

c. Conditions of Coverage.

(1) Training Period.

(a) All applicants for enrollment as volunteers undergo training prior to actual enrollment. The Peace Corps provides this training at designated universities or training centers. In keeping with section 8(a) of the Peace Corps Act, applicants have the protection of the FECA while performing their training assignments or while engaged in any activity which is a reasonable incident of the training assignment.

(b) The trainees receive subsistence and quarters while in training, and transportation to and from the training sites. For this reason, their coverage under the FECA will include many activities other than the specific training functions. Requirements for proof of "performance of duty" or "causal relation" will be the same as that required in the case of a Federal employee.

(2) Serving Abroad.

(a) In keeping with section 5(d)(2) of the Peace Corps Act, injuries of trainees and volunteers while abroad are deemed to have occurred while in the performance of duty, and any disease contracted abroad is deemed to have been proximately caused by the employment. Except for the exclusions of willful misconduct, intent to bring about injury or death of self or another, or intoxication, which appear in section 8102 of the FECA and section 5(d)(2) of the Peace Corps Act, volunteers have the protection of the FECA for all injuries sustained and diseases contracted during such service.

(b) For episodic conditions, the medical evidence must show that the episode resulted from a condition contracted abroad. Only those episodes of a recurring disease that are shown to be associated with Peace Corps service by time and location or consequence are compensable. In the case of a disease, a medical report showing that the disease was contracted while the volunteer was serving abroad is sufficient. This requirement is satisfied by a statement from the attending or examining physician, or by an Office medical adviser, stating that the disease was contracted during the period of service abroad. For certain diseases, this evaluation must include consideration of the incubation period.

(c) This broad coverage for diseases raises unusual problems with respect to certain conditions. Claims examiners should be guided by the following rules:

(i) Dental Disease. Caries, abscesses, etc., may be considered contracted abroad if comparison with the pre-induction dental examination so indicates.

(ii) Mental Illness. A psychiatric condition related to Peace Corps service will be considered compensable until the attending physician indicates that the condition or episode has resolved and that no further disability exists. If a recurrence is claimed, careful inquiries should be made to determine whether the recurrence was due to the Peace Corps experience or to pre-existing psychopathology. See MEDGUIDE in Folioviews for a discussion of mental disorders.

(iii) Intestinal Parasites. If the terminal examination indicates the presence of intestinal parasites, further examination and treatment may be authorized. A positive skin test alone is not considered evidence of a disease.

(iv) Tuberculosis. If the terminal examination indicates the presence of tuberculosis, further examination and treatment may be authorized. A positive skin test alone is not considered evidence of a disease.

(v) Pregnancy. In accordance with the Pregnancy Discrimination Act, FECA coverage is extended to Peace Corps volunteers for pregnancies which occur during Peace Corps service overseas and continue past the date of termination. This coverage is retroactive to April 1, 1979, the date that the Pregnancy Discrimination Act became applicable to fringe benefit programs.

Such pregnancies are to be considered in the same light as any covered injury, but FECA coverage is limited to Peace Corps volunteers. Therefore, the benefits of the Act may not be extended to the children born of such pregnancies.

Coverage of the Peace Corps volunteer extends to all pregnancy-related conditions, including miscarriages, prenatal and postnatal care of the mother. Any prenatal care is to be considered part of the treatment for the disability (pregnancy) of the volunteer, and not preventive treatment or treatment for the unborn child.

Under no circumstances, even when the health of the mother is involved, may OWCP pay for an abortion for a Peace Corps volunteer. This policy is necessary because the Peace Corps may not use any of its budget for abortion purposes. (Thus, the Compensation Fund could not be reimbursed for such expenditure.)

Compensation for loss of wages may be paid only during the time when the medical evidence of record shows that the mother is disabled for the duties she would have been performing as a volunteer due to her pregnancy or its aftereffects. Thus, at least during the early months of the pregnancy, there may be no basis for paying compensation for wage loss.

An unmarried volunteer without a wholly dependent parent is entitled to compensation at the 66 2/3 percent rate prior to the birth of the child and at the 75 percent rate after the child is born.

Medical treatment and services will be provided in accordance with the usual provisions of the Act. Thus, all provisions of 5 U.S.C. 8101(2) and (3) and 5 U.S.C. 8103 apply.

(d) Where treatment of certain specified service-related medical conditions or injuries costs less than $1000, the Peace Corps will, at its discretion, pay medical costs directly. If the cost for necessary treatment is $1000 or more, a claim must be filed under the FECA using normal procedures.

(i) Dental Disease.

(ii) Dermatitis. Simple skin irritation, inflammation or eruption due to allergic reaction, direct contact, radiation, light, or temperature changes may be included. Schistosomiasis, acariasis, psoriasis, pruritis, blastomycosis and other skin conditions are not included.

(iii) Tinea (ringworm). Included conditions may involve any fungal skin condition. Common areas affected by ringworm include the body, scalp, beard, feet (athlete's foot) and legs/genitals (jock itch). Tinea of the fingernails and toenails (onychomycosis) can also be included.

(iv) Minor eye irritation. Keratitis infections due to bacteria, conjunctivitis (pinkeye) and irritation from contact lenses may be included.

(v) Terminal prophylaxis following malaria exposure.

(3) Return from Service Abroad.

(a) A volunteer who returns to the United States immediately after completing service abroad will be terminated in this country. The volunteer has the protection of the FECA while traveling to the United States unless a material deviation occurs.

(b) A volunteer may also choose to be terminated at a foreign post of duty. In this case the volunteer is paid the money to which he or she is entitled as well as the cost of travel from the foreign post of duty to the United States. In most cases, the volunteer will return to the United States by an indirect route. After termination, the volunteer has the protection of the FECA only during that part of the trip when on the direct or most usually traveled route between the foreign post of duty and the United States. The facts about any deviation from this route must be developed carefully. The question will be determined according to the usual criteria for cases involving travel status. See FECA PM 2-804.

d. Medical Records.

(1) The Peace Corps maintains a complete medical file for its volunteers. The file usually includes the results of the pre-employment and termination examinations and a record of medical care received during service. This medical information is useful in adjudicating claims for compensation, particularly in those cases involving disease.

(2) With each compensation case, the Peace Corps is to submit its original medical file for the volunteer. To save time and expense, neither the Peace Corps nor OWCP will make copies of these records, which should be kept in the case file. The manner in which each record has been assembled by the Peace Corps will not be disturbed. The Peace Corps will ask for the temporary return of a medical record if needed at a later date. Such requests are to be honored without reservation.

e. Reporting of Injuries and Deaths.

(1) Volunteers are required to report injuries in the manner required by Section 10.100 and 10.101 of the FECA regulations. The Peace Corps will keep Form CA-1 or CA-2 during the period of the volunteer's enrollment. At the time of separation, it is to be submitted to OWCP if it then appears that:

(a) The volunteer requires medical care for the cure or relief of the injury; or

(b) The injury is causing disability for which compensation may be payable.

(2) With Form CA-1 or CA-2, the Peace Corps will submit the volunteer's medical record and other appropriate information, including the dates of enrollment and separation, and the dates of service abroad. They will also state what benefit the claimant seeks or needs.

(3) Based upon information in the volunteer's medical and personnel folders, headquarters staff of the Peace Corps will complete the reverse of Forms CA-1 and CA-2.

(4) The headquarters staff of the Peace Corps is to report deaths of volunteers in the same manner as is required for Federal employees.

f. Disability Claims.

(1) The Peace Corps will not usually furnish Form CA-7 to a volunteer. The Claims Examiner should send Form CA-7 to the volunteer if it appears that entitlement to compensation exists.

(2) The Employing Agency Portion of Form CA-7 need not be completed. Therefore, the claimants should be told to return these forms directly to OWCP.

(3) The date of the volunteer's separation will be the date pay stops, which should be shown in the appropriate block on Form CA-1 or CA-2. Entitlement to compensation for temporary or permanent disability begins on the date following the date of separation.

(4) 5 U.S.C. 8118 does not apply to volunteers because they do not earn annual or sick leave and are not entitled to continuation of pay (COP).

(5) Compensation for disability will, in all cases, be computed on a weekly basis. Because volunteers do not usually have a standard work week, 5 U.S.C. 8114 will not be applied. Volunteers are entitled to CPI increases in compensation as provided by 5 U.S.C. 8146a.

(6) The three-day waiting period provided by 5 U.S.C. 8117 applies to these cases in the same manner as it applies to Federal employees.

g. Death Claims.

(1) When a death is reported by telegram or Form CA-6, the CE should promptly send Form CA-1064 and Form CA-5 to the next of kin, and Form CA-1063 to the employing agency.

(2) The Attending Physician's Report on the reverse of Form CA-5 need not be completed, and claimants may be advised to return this form directly to OWCP.

(3) Compensation for death will be computed on a monthly basis, just as it is for Federal employees.

h. Pay Rate. In keeping with Section 5(d)(1) of the Peace Corps Act, the monthly pay rate for volunteers is the lowest rate provided for Grade 7 of the general schedule established by the Classification Act of 1949. The monthly pay for volunteer leaders and heads of household is the lowest rate provided for Grade 11 of the general schedule. The annual pay rates for computing compensation are found in Exhibit 1.

Section 5 U.S.C. 8101(4), which provides that the pay rate may be based on pay at date of injury, date of recurrence or date of disability, does not apply to Peace Corps volunteers.

i. Correspondence. All compensation claims and correspondence concerning injuries to Peace Corps personnel are to be submitted to the Cleveland District Office (09). All correspondence sent to the Peace Corps should be addressed as follows:

Chief, OWCP Liaison
Office of Health Services
Peace Corps
1990 K Street, N.W., Room 6480-A
Washington, D.C. 20526

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5. Volunteers in Service to America (VISTA).

a. Statutory Authority. The Economic Opportunity Act of 1964 (EOA); 5 U.S.C. 8143 provides FECA coverage to all volunteers in the VISTA program. Cases of injuries to staff employees of VISTA are handled in the same manner as regular Federal employees.

b. Conditions of Coverage. VISTA personnel perform services within the United States similar to those which Peace Corps volunteers perform in foreign countries. Claims filed by VISTA volunteers will be adjudicated using the same procedures as for regular Federal employee.

c. The pay rate for injuries occurring after October 1, 1993, is set by statute at the beginning rate for a GS-5 employee. (Prior to that date, it was set at the beginning rate for a GS-7 employee.)

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6. Job Corps.

a. Statutory Authority. The Economic Opportunity Act of 1964 (EOA) and 5 U.S.C. 8143 provide coverage for enrollees in the Job Corps. They are deemed to be civil employees of the United States within the meaning of the term as defined in 5 U.S.C. 8101.

b. FECA Coverage.

(1) Job Corps enrollees are trained through Conservation Centers and through Urban Centers. The duty of operating the Conservation Centers has been delegated to the Departments of Agriculture and Interior. Injuries to employees of these Departments assigned to the operation of the Conservation Centers are to be reported and handled in the same manner as for other Federal employees.

(2) Operation of the Urban Centers has been delegated to private contractors. The employees of these contractors are not "employees" within the meaning of 5 U.S.C. 8101. They have no entitlement under the FECA.

(3) The employees of the operators of Urban Centers are not Federal officials, and they may not act as official superiors or reporting officials. With the Director's concurrence, the Job Corps has authorized the Centers' directors and their administrative officers to act in the capacity of the official superiors to sign Forms CA-1 and CA-2 and other reports relating to the injuries of enrollees. This authority may not be delegated to their subordinates. OWCP personnel should be particularly alert to this problem, being sure not to accept reports signed by persons subordinate to the Center directors and their administrative officers. Deviation from this rule is not permitted.

c. Conditions of Coverage.

(1) While at a Job Corps Center, an enrollee is under the continuous supervision and control of Job Corps officials. The Job Corps provides subsistence, quarters, clothing, medical care, training, work and recreation. For this reason an enrollee has the protection of the FECA for most incidents which occur while at the Center. Job Corps enrollees must, however, meet the same tests of compensability that apply to all other Federal employees.

(2) While away from the Center, an enrollee has the protection of the FECA if participating in an activity authorized by or under the direction and supervision of a Center official. This would include a group activity under the immediate direction of a supervisor as well as an authorized activity while the enrollee is on pass from the Center.

The record in such a case should include (1) a statement from a Center official showing whether at the time of the injury the enrollee was engaged in an authorized activity, and (2) a copy of the pass. Where a written pass was not issued, the Center official should be asked for a statement showing the inclusive dates and hours covered by the pass and the instructions or limitations relating to the activity permitted the enrollee.

(3) While on authorized pass or during travel between home and the Center, an enrollee has the protection of the FECA. In these cases, the record should include a statement from a Center official showing whether the travel or activity while on pass was authorized by or under the direction and supervision of the Job Corps.

(4) While absent from an assigned post of duty or participating in an unauthorized activity, an enrollee does not have the coverage of the Act.

(5) While at home, an enrollee (whether on "pass" or on "leave") does not have the protection of the FECA. However, an enrollee who is visiting the residence of another enrollee, with the permission of the Job Corps, would be considered to be engaged in an authorized activity, and would therefore be covered during the entire absence from the Center.

(6) Some enrollees live off the premises of their Center and commute between their home and the Center for training. The usual rules governing coverage during travel to and from work apply in "off-premises" injury situations.

(7) Injuries resulting from "horseplay" and "fighting" are frequent among the enrollees. It is the OWCP's position that most of these injuries come within the scope of the FECA. The confining nature of the employment and the long absences from home are factors which contribute to this problem. The result is that "horseplay" and "fighting" are an expected element of the employment environment. Where so indicated, the district offices should fully develop the facts in any case where it appears the exclusions of 5 U.S.C. 8102 might require consideration.

e. Medical Care after Termination.

(1) Prior to the termination of enrollment, an enrollee may not be provided medical care at OWCP expense and the Job Corps may not properly issue an authorization for examination or treatment on behalf of OWCP. Any medical bills received for treatment provided prior to termination should be sent to the Job Corps for consideration. Further, if an enrollee who has been terminated should be reinstated in the Job Corps, that agency would reassume responsibility for medical coverage of any work-related injury.

(2) The Job Corps Center may issue a Form CA-16 or equivalent letter of authorization at the time of termination, if the enrollee is under medical care for a Job Corps-related injury and if continuing treatment for that injury is necessary. The Job Corps Center may issue authorization at the time of termination even though an enrollee is not under medical care, if immediate treatment is necessary for a Job Corps-related injury. In all other situations involving separated Job Corps enrollees, the district office will issue authorization for medical care. The district office will also assume responsibility for issuing authorization if the case has been previously received and considered by OWCP.

(3) If medical care is required after termination of enrollment, the ex-enrollee should be instructed to select a physician to render medical services. The enrollee then must furnish the Office with the provider's name and address. If the provider is qualified, the District Medical Adviser may issue an appropriate authorization to the physician.

(4) At the time of termination an enrollee may be receiving continuing medical care from a private physician which was provided at Job Corps expense. In this situation, the OWCP may pay reasonable charges for continuation of the medical care beginning on the day following termination where a claim has been approved. Payment may be made only for treatment for the approved condition. In these cases, the absence of a valid authorization will not defeat a medical expense claim which is otherwise in order.

f. Report of Injuries.

(1) Enrollees are required to report injuries in the usual manner as stated in the regulations.

(2) The Job Corps should submit Forms CA-1 and CA-2 only after the enrollee has been terminated, and only when:

(a) The condition causes disability for work for more than 14 days; or

(b) It is likely to result in a medical charge against the Compensation Fund after the enrollee's termination from the Job Corps; or

(c) It appears likely to require prolonged treatment; or

(d) It appears likely to result in future disability or permanent disability. The date of termination should appear in Block 24 of the CA-1, and in Block 34 of the CA-2.

g. Disability Claims.

(1) Compensation is not payable prior to termination of enrollment, in keeping with Section 106(c)(2)(C) of P.L. 88-452.

(2) The date of the enrollee's termination will be the date pay stops.

(3) 5 U.S.C. 8118 does not apply to enrollees because they do not earn annual or sick leave.

(4) Compensation for disability will be computed on a weekly basis. Because enrollees do not usually have a standard work week, 5 U.S.C. 8114 will not be applied. Job Corps enrollees are entitled to all applicable Consumer Price Index increases in compensation under 5 U.S.C. 8146a.

(5) The three-day waiting period provided by 5 U.S.C. 8117 applies to these cases in the same manner as it applies to Federal employees.

(6) Job Corps enrollees are not entitled to continuation of pay (COP) under 5 U.S.C. 8118.

h. Death Claims.

(1) An enrollee receives an allowance for dependents and may also make an allotment from Job Corps pay. A copy of the allotment should be obtained from Center officials in any death case where dependency must be established to support a claim for death benefits.

(2) In keeping with 5 U.S.C. 8134, if the death is employment-related, OWCP may pay up to $800 for funeral and burial expenses plus the cost of embalming and transporting the body in a hermetically sealed casket to the enrollee's home, as well as the $200 provided in 5 U.S.C. 8133(f).

i. Pay Rates.

(1) 5 U.S.C. 8101 and 5 U.S.C. 8114 do not apply to Job Corps enrollees.

(2) Where the injury occurred prior to November 8, 1966, compensation is computed on a monthly pay of $150 in (a) all death cases and (b) any disability case where the enrollee had not reached the age of 21. After the enrollee reaches age 21, disability compensation must be computed on an annual pay rate of the entrance salary for GS-2.

(3) Where the injury occurred after November 8, 1966, compensation is computed on an annual pay rate of the entrance salary for GS-2. (This figure will change any time the pay rates under the Classification Act of 1949 are amended.)

(4) The minimum provisions of 5 U.S.C. 8112 and 5 U.S.C. 8133(e) do not apply to Job Corps enrollees.

(5) 5 U.S.C. 8113 applies to these cases. Where so indicated, the pay rate may be redetermined in the same manner as any other Federal employee.

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7. D. C. Metropolitan Police Reserve Corps. D. C. Metropolitan Police Reservists are entitled to FECA coverage if injured while serving in any sudden emergency (riot, pestilence, invasion, and insurrection) involving loss of life or property, or while serving on days of public election, ceremonies, or celebration. Each case will be considered on individual merit, and coverage will be extended only after careful study of all pertinent evidence.

a. Pay rate for compensation purposes for injuries occurring during sudden emergencies would be that comparable to a regular police officer of any rank whose duties most nearly resemble those of the injured volunteer. In non-emergencies, pay is frozen at the level of a regular police private.

b. Jurisdiction. Cases in this group will be developed and adjudicated in the Cleveland District Office (09).

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8. National Fisheries Observers

a. Statutory Authority. Public Law 104-297, enacted on October 11, 1996, provides that observers on vessels that are under contract to carry out responsibilities under the Magnuson-Stevens Fishery Conservation and Management Act or the Marine Mammal Protection Act of 1972 shall be deemed to be civil employees of the United States for the purposes of coverage under 5 U.S.C. 8101.

b. Conditions of Coverage. Contract observers are employed in private industry to carry out the requirements of the above Acts, which are under the jurisdiction of the Department of Commerce. Any person claiming coverage has the burden of establishing that he or she is an observer within the meaning of section 403 of the Magnuson-Stevens Act, that the injury was sustained while in performance of duty on a vessel, and that the claimed disability or impairment is due to the on-the-job injury. Therefore, once the determination that the claimant is a civil employee is made, the guidelines described in chapters 2-800 through 2-805 should be employed in the adjudication of these claims. In particular, fisheries observers are extended coverage under the FECA only while on board the vessel, not while traveling to and from the vessel, or when performing off-vessel work while assigned to the cruise.

c. Jurisdiction. As these cases are anticipated to present unusual issues, they will be handled in one location. All claims for contract observers and their survivors will be forwarded to the Cleveland District Office (09) without jacketing. They will be assigned case file numbers with an OB- prefix, and will be adjudicated and maintained in the Cleveland District Office.

d. Other Considerations. Payment of compensation should be determined in accordance with Section 8114(d) of the FECA and PM Chapter 2-900. Increases in the pay rate due to the claimant being at sea when the injury occurred should be handled as described in 2-900-8b., Applying Increments of Pay. The increase in pay rate for sea duty should be treated in exactly the same way as premium pay, night differential pay, Sunday pay or FLSA extra pay is treated. According to section 8.b. of the chapter, the CE must obtain the dollar amount of additional pay received during the year previous to the work injury, and add it to the reported base pay to obtain the annual salary. (See Chapter 2-900-8. b.)

Due to the potential for third party liability of the vessel owner, Form CA-1045 should be released by the CE and the appropriate subrogation procedures followed. As possible entitlement to state workers' Compensation would not constitute a prohibited dual benefit, OWCP would not require an election of benefits by the claimant. This does not preclude the states from offsetting FECA benefits against any entitlement the claimant might have under the Jones Act.

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Exhibit 1: Annual Pay Rates

ANNUAL PAY RATES
FOR COMPUTING COMPENSATION
OF PEACE CORPS AND VISTA VOLUNTEERS

Date of Injury

PC Volunteer

VISTA Volunteer

PC Volunteer
Leaders/Heads
of Households

09/22/61-10/13/62
10/14/62-01/04/64
01/05/64-07/04/64
07/05/64-10/09/65
10/10/65-07/02/66
07/03/66-10/07/67
10/08/67-07/13/68
07/14/68-07/12/69
07/13/69-12/27/69
12/28/69-01/09/71
01/10/71-01/08/72
01/09/72-01/06/73
01/07/73-10/13/73
10/14/73-10/12/74
10/13/74-10/11/75
10/12/75-10/09/76
10/10/76-10/08/77
10/09/77-10/07/78
10/08/78-10/06/79
10/07/79-10/04/80
10/05/80-10/03/81
10/04/81-10/02/82
10/03/82-01/07/84
01/08/84-01/05/85
01/06/85-01/03/87
01/04/87-01/02/88
01/03/88-12/31/88
01/01/89-01/13/90
01/14/90-01/12/91
01/13/91-01/11/92
01/12/92-01/09/93
01/10/93-09/30/93
10/01/93-01/07/95
01/08/95-01/06/96
01/07/96-01/04/97
01/05/97-01/03/98
01/04/98-01/02/99
01/03/99-01/01/00
01/02/00-01/13/01
01/14/01-01/12/02
01/13/02-01/11/03
01/12/03-01/10/04
01/11/04-01/08/05
01/09/05-01/07/06
01/08/06-

$ 5,355
5,540
5,795
6,050
6,269
6,451
6,734
6,981
7,639
8,098
8,582
9,053
9,520
9,969
10,520
11,046
11,523
12,336
13,014
13,925
15,193
15,922
16,559
17,138
17,824
18,358
18,726
19,493
20,195
21,023
21,906
21,906
22,717
23,171
23,634
24,178
24,734
25,501
26,470
27,185
28,164
29,037
29,821
30,567
31,209

5,355
5,540
5,795
6,050
6,269
6,451
6,734
6,981
7,639
8,098
8,582
9,053
9,520
9,969
10,520
11,046
11,523
12,336
13,014
13,925
15,193
15,922
16,559
17,138
17,824
18,358
18,726
19,493
20,195
21,023
21,906
21,906
18,340
18,707
19,081
19,520
19,969
20,588
21,370
21,947
22,737
23,442
24,075
24,677
25,195

7,560
8,045
8,410
8,650
8,921
9,221
9,657
10,203
11,233
11,905
12,615
13,309
13,996
14,671
15,481
16,255
17,056
18,258
19,263
20,611
22,486
23,566
24,508
25,366
26,381
27,172
27,716
28,852
29,891
31,116
32,423
33,623
33,623
34,295
34,981
35,786
36,609
37,744
39,178
40,236
41,684
42,976
44,136
45,239
46,189

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Chapter 2-1701, Peace Corps Cases

Paragraph and Subject

Date

Trans. No.

Table of Contents

11/13

14-01

1. Purpose and Scope

11/13

14-01

2. Statutory Provisions of the FECA

11/13

14-01

3. Regulatory Provisions under the FECA

11/13

14-01

4. Statutory Authority for Peace Corps

11/13

14-01

4. Statutory Authority for Peace Corps

11/13

14-01

5. Jurisdiction

11/13

14-01

6. FECA Coverage of Employees/Volunteers

11/13

14-01

7. Conditions of Coverage During Training

11/13

14-01

8. Conditions of Coverage while Serving Abroad

11/13

14-01

9. Conditions of Coverage Returning from Service Abroad

11/13

14-01

11. Initial Authorization for Medical Care

11/13

14-01

12. Reporting Injuries and Deaths

11/13

14-01

13. Claims for Disability Compensation

11/13

14-01

14. Disability Management

11/13

14-01

Exhibit 1 - Annual Pay Rates for Computing Compensation for Peace Corps Volunteers

11/13

14-01

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1. Introduction. The Peace Corps was established on September 22, 1961 by Public Law 87-293, known as the "Peace Corps Act." It authorizes the enrollment of qualified citizens and nationals of the United States as "volunteers" and "volunteer leaders" for service abroad in interested countries and areas, to help the people of such countries and areas in meeting their needs for trained workers, and to help promote a better understanding of the American people on the part of the peoples served and a better understanding of other peoples on the part of the American people.

The purpose of this chapter is to outline the unique aspects of coverage under the Federal Employees' Compensation Act (FECA) that pertain specifically to volunteers (and volunteer leaders) of the Peace Corps.

Claims for Peace Corps employees who work for the Peace Corps, other than as volunteers or volunteer leaders, are handled in the same manner as other claims. There are no special rules for handling claims from such employees.

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2. Statutory Provisions of the FECA. 5 U.S.C. §8142 of the FECA provides that,

(a) For the purpose of this section, "volunteer" means--

(1) a volunteer enrolled in the Peace Corps under section 2504 of title 22;

(2) a volunteer leader enrolled in the Peace Corps under section 2505 of title 22; and

(3) an applicant for enrollment as a volunteer or volunteer leader during a period of training under section 2507(a) of title 22 before enrollment.

(b) Subject to the provisions of this section, this subchapter applies to a volunteer, except that entitlement to disability compensation payments does not commence until the day after the date of termination of his service as a volunteer.

(c) For the purpose of this subchapter--

(1) a volunteer is deemed receiving monthly pay at the minimum rate for GS-7;

(2) a volunteer leader referred to by section 2505 of title 22, or a volunteer with one or more minor children as defined in section 2504 of title 22 is deemed receiving monthly pay at the minimum rate for GS-11;

(3) an injury suffered by a volunteer when he is outside the several States and the District of Columbia is deemed proximately caused by his employment, unless the injury or disease is--

(A) caused by willful misconduct of the volunteer;

(B) caused by the volunteer's intention to bring about the injury or death of himself or of another; or

(C) proximately caused by the intoxication of the injured volunteer; and

(4) the period of service of an individual as a volunteer includes--

(A) any period of training under section 2507(a) of title 22 before enrollment as a volunteer; and

(B) the period between enrollment as a volunteer and the termination of service as a volunteer by the President or by death or resignation.

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3. Regulatory Provisions under the FECA. 20 C.F.R §§ 10.730 and 10.731 provide the following:

§ 10.730 What are the conditions of coverage for Peace Corps volunteers and volunteer leaders injured while serving outside the United States?

(a) Any injury sustained by a volunteer or volunteer leader while he or she is located abroad is deemed proximately caused by Peace Corps employment and will be found by OWCP to have been sustained in the performance of duty, and any illness contracted while that volunteer is located abroad will be found by OWCP to be proximately caused by the employment unless the evidence establishes:

(1) The injury or illness was caused by the claimant's willful misconduct, intent to bring about the injury or death of self or another, or was proximately caused by the intoxication by alcohol or illegal drugs of the injured claimant; or

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

(3) The injury or illness claimed is a manifestation of symptoms of, or consequent to, a pre-existing congenital defect or abnormality.

(b) If the OWCP finds that the evidence indicates that the injury or illness may not have been sustained in the performance of duty due to the circumstances enumerated in paragraph (a)(2) and (3) of this section, the claimant may still prove his claim by the submittal of substantial and probative evidence that such injury or illness was sustained in the performance of duty with the Peace Corps.

(c) If an injury or illness, or episode thereof, comes within one of the exceptions described in paragraph (a)(2) or (3) of this section, the claimant may nonetheless be entitled to compensation. This will be so provided he or she meets the burden of proving by the submittal of substantial, probative and rationalized medical evidence that the illness or injury was proximately caused by factors or conditions of Peace Corps service, or that it was materially aggravated, accelerated or precipitated by factors of Peace Corps service; if the injury or illness was temporarily aggravated by factors of Peace Corps service, disability compensation is payable for the period of such aggravation.

§ 10.731 What is the pay rate of Peace Corps volunteers and volunteer leaders for compensation purposes?

The pay rate for these claimants is defined as the pay rate in effect on the date following separation, provided that the rate equals or exceeds the pay rate on the date of injury. It is defined in accordance with 5 U.S.C. 8142(a), not 8101(4).

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4. Statutory Authority for Peace Corps. OWCP is principally concerned with the following sections of the Peace Corps Act:

(a) Section 5(e) pertaining to the Peace Corps medical program.

(b) Section 6, which states that all provisions of the Act applicable to volunteers shall be applicable to volunteer leaders and the term "volunteers" shall include "volunteer leaders."

(c) Section 7, which provides for the employment of a staff of civil employees to carry out the provisions and purposes of this legislation.

(d) Section 8(a), which provides (1) for appropriate training for applicants for enrollment as volunteers and volunteer leaders, (2) the enrollment period shall include the period of training, and (3) all provisos of the Act relating to volunteers and volunteer leaders are applicable to applicants for enrollment during the period of training.

(e) Section 10(a)(4), which authorizes the acceptance of voluntary service in the name of the Peace Corps and employment of such voluntary services in furtherance of the purposes of the Peace Corps Act.

(f) Sections 12 and 13, which provide for the appointment of a Peace Corps National Advisory Council and employment of experts and consultants.

(g) Section 23(a) and (b), which define the term "abroad" to mean any area outside the several states and territories and the District of Columbia for injuries and deaths prior to September 13, 1966.Public Law 89-572 amended section 25(b) by striking the words "and territories" from the law September 13, l966 and thereafter.

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5. Jurisdiction. Peace Corps claims are initially adjudicated in the Special Claims Unit in Cleveland District Office, after which they are transferred to other district offices if approved. See PM 1-200-3c.

Such transfer occurs so that Peace Corps volunteers can easily be provided with the disability management services in their home locale, such as assignment of a Field Nurse or Vocational Rehabilitation Counselor. See paragraph 14 of this chapter, and also PM 2-0600.

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6. FECA Coverage of Employees/Volunteers. The Peace Corps Act extends the benefits of the FECA to Peace Corps Volunteers and Peace Corps Volunteer Leaders. For the purposes of this paragraph all three groups will be referred to as volunteers.

Note - In 1974, Section 8142(c)(2) of the FECA was amended to designate Peace Corps Volunteers with one or more minor children as "Heads of Household." By virtue of this amendment, these volunteers are entitled to compensation at the same rate as the Volunteer Leaders. Reports of injury should indicate whether a claimant is a Volunteer, Head of Household, or Volunteer Leader.

a. Peace Corps National Advisory Council members and the experts and consultants provided by sections 12 and 13 of the Peace Corps Act have the protection of the FECA while performing their assigned duties under section 8101(1)(B) of the FECA. However, decisions concerning these individuals will be made on a case-by-case basis, and an opinion from the Solicitor of Labor should be requested if necessary.

b. Staff Employees. These employees fall within the definition of "employee" outlined in 5 U.S.C. 8101(1). They have full coverage of the FECA, and their claims are adjudicated in the district office having jurisdiction over the place of employment. See FECA PM 1-200.

c. Staff Spouses. The spouses of Peace Corps staff members serving in foreign countries have the protection of the FECA while performing service or engaged in official travel. In addition to Form CA-1 or CA-2, a copy of the travel authorization is required. Performance of duty will be determined on a case-by-case basis. (See FECA PM 2-804) The pay rate for computing compensation will be determined in the manner used for persons coming within the scope of section 8101(1)(B) of the FECA.

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7. Conditions of Coverage During Training. All applicants for enrollment as volunteers undergo training prior to actual enrollment; during this period they are referred as trainees. The Peace Corps provides this training overseas in the country of assignment. In keeping with section 8(a) of the Peace Corps Act, applicants have the protection of the FECA during the training period.

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8. Conditions of Coverage while Serving Abroad. Injuries of trainees and volunteers while abroad are deemed to have occurred while in the performance of duty, and any disease contracted abroad is deemed to have been proximately caused by the employment. Except for the exclusions of willful misconduct, intent to bring about injury or death of self or another, or intoxication, which appear in section 8142 of the FECA, volunteers have the protection of the FECA for all injuries sustained and diseases contracted during such service.

In cases involving disease, the examining physician or other qualified physician generally must state that the disease was contracted abroad in order to accept it as Peace Corps related. In some situations, this determination includes consideration of the incubation period for the disease. Coverage may also be extended if a pre-existing condition is aggravated, accelerated or precipitated by Peace Corps service. The District Medical Advisor (DMA) may also be consulted and asked to provide an opinion in this matter.

The broad coverage for disease may present unusual medical problems. In general, the following rules may be observed:

a. For episodic conditions, the medical evidence must show that the episode resulted from a condition contracted abroad. In the case of a disease, a medical report showing that the disease was contracted while the volunteer was serving abroad is sufficient. This requirement is satisfied by a statement from a physician stating that the disease was contracted during the period of service abroad. For certain diseases, this evaluation must include consideration of the incubation period.

b. Dental Disease. Cavities, abscesses, etc., may be considered contracted abroad if comparison with the pre-induction dental examination so indicates. Unless an acute dental emergency exists, eligibility for coverage will be established prior to issuance of authorization for dental care; however, see paragraph 10 in this chapter.

c. Mental Illness. If it is determined that the psychiatric condition is related to Peace Corps service, treatment can be authorized until the attending physician indicates that the condition or episode has resolved and it is determined that no further disability exists. If a recurrence of the mental disease is alleged, it must be determined whether the recurrence is due to the Peace Corps experience or to other factors, including pre-existing conditions. A condition stemming from a volunteer's readjustment to activities of daily living post separation from Peace Corps are not covered under the FECA.

d. Intestinal Parasites. If the separation medical examination indicates the presence of intestinal or other types of parasites, further examination and treatment may be authorized. A positive serology or skin test alone will not necessarily be considered evidence of a disease. However, see paragraph 10 in this chapter.

e. Tuberculosis. If the separation medical examination indicates the presence of tuberculosis, further examination and treatment may be authorized, as may provision of prophylactic medication. See also paragraph 10 in this chapter. See also 20 C.F.R 10.313c.

f. Pregnancy. In accordance with the Pregnancy Discrimination Act, FECA coverage is extended to Peace Corps volunteers for pregnancies which occur during Peace Corps service overseas and continue past the date of termination.

(1) Such pregnancies are to be considered in the same light as any covered injury, but FECA coverage is limited to Peace Corps volunteers. Therefore, the benefits of the Act may not be extended to the children born of such pregnancies.

(2) Coverage extends to all pregnancy-related conditions, including miscarriages, prenatal and postnatal care of the mother. Any prenatal care is to be considered part of the treatment for the disability (pregnancy) of the volunteer, and not preventive treatment or treatment for the unborn child.

(3) Under no circumstances, even when rape, incest or the health of the mother is involved, may OWCP pay for an abortion for a Peace Corps volunteer. (As the Peace Corps may not use any of its budget for abortion purposes, the Compensation Fund could not be reimbursed for such expenditure.)

(4) Compensation for loss of wages may be paid only during the time when the medical evidence of record shows that the mother is disabled for the duties she would have been performing as a volunteer due to her pregnancy or its aftereffects. Thus, at least during the early months of the pregnancy, there may be no basis for paying compensation for wage loss.

(5) An unmarried volunteer without a wholly dependent parent is entitled to compensation at the 66 2/3 percent rate prior to the birth of the child and at the 75 percent rate after the child is born.

g. Assault/Sexual Assault. As injury during volunteer service abroad is deemed proximately caused by such service, injury due to assault or sexual assault (including treatment for sexually transmitted disease and mental health treatment) are covered under the FECA.

h. HIV/AIDS. Peace Corps volunteers are tested for HIV infection before being sent overseas. If comparison with this test shows that the infection has developed during the Peace Corps Service, medical and compensation benefits for the resulting condition are payable. Aggravation and acceleration of preexisting HIV due to conditions of service or limitations on medical care would also be covered.

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9. Conditions of Coverage Returning from Service Abroad. A volunteer who returns to the United States immediately after completing service abroad has the protection of the FECA while traveling to the United States unless a material deviation occurs.

A volunteer may also choose to be terminated at a foreign post of duty. In this case the volunteer has the protection of the FECA only during that part of the trip back when on the direct or most usually traveled route between the foreign post of duty and the United States. The facts about any deviation from this route must be developed carefully. The question will be determined according to the usual criteria for cases involving travel status. See FECA PM 2-804.

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10. Payment of Medical Costs by Peace Corps. Where treatment of certain specified service-related medical conditions or injuries costs less than $1500, the Peace Corps will, at its discretion, pay medical costs directly as outlined below. If the cost for necessary treatment is $1500 or more, a claim must be filed under the FECA using normal procedures.

a. Dental Disease.

b. Dermatitis. Simple skin irritation, inflammation or eruption due to allergic reaction, direct contact, radiation, light, or temperature changes may be included.

Schistosomiasis, acariasis, psoriasis, pruritis, blastomycosis and other skin conditions are not included as conditions for which pre-OWCP coverage is permissible.

c. Tinea (ringworm). Included conditions may involve any fungal skin condition. Common areas affected by ringworm include the body, scalp, beard, feet (athlete's foot) and legs/genitals (jock itch). Tinea of the fingernails and toenails (onychomycosis) can also be included.

d. Minor eye irritation. Keratitis infections due to bacteria, conjunctivitis (pinkeye) and irritation from contact lenses may be included.

e. Presumptive Anti-relapse Therapy ("terminal prophylaxis") following malaria exposure.

f. Vaginal yeast infections (candidiasis).

Vaginitis, sexually transmitted diseases, and treatment for abnormal pap smears are not included as conditions for which pre-OWCP coverage is permissible.

g. Acute Otitis Media.

h. Acute Sinusitis.

i. Constipation.

j. Hemorrhoids.

k. Giardia (requiring one -time treatment).

l. Initial tuberculosis treatment. Tuberculosis can be classified as either latent tuberculosis or tuberculosis disease. Treatment for latent tuberculosis is optional for the infected individuals and there is no time sensitivity for treatment since they are asymptomatic; however, volunteers who develop tuberculosis disease do need immediate treatment. As a result, the discretionary conditions for which the Peace Corps can provide up to $1500 in treatment include tuberculosis with the caveat that a claim form must be submitted in all tuberculosis claims.

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11. Initial Authorization for Medical Care. Since these claims are adjudicated in the Cleveland District Office, requests for initial authorization of medical care in emergency situations (prior to creation of a case) should be directed to that office. Requests for treatment, after a case has been created, should be referred to OWCP's authorized billing agent (like all other cases). The following procedures have been established with regard to issuing authorization for medical care:

a. Prior to Separation. When a volunteer is under active care or in the hospital with a prognosis which indicates that separation from the Peace Corps will be required, the Cleveland District Office may verbally approve authorization to the Peace Corps for examination and/or treatment effective the day following separation, if eligibility for coverage is established or sufficient indications exist to show that the condition is related to Peace Corps service, so that continuity of medical care will be preserved.

b. At Separation. If eligibility for coverage is established, or sufficient indications exist to show that the condition is related to Peace Corps service, the Cleveland District Office may verbally approve authorization to the Peace Corps for examination and/or treatment near the volunteer's home.

c. Following Separation. The Peace Corps may not issue authorization for examination and/or treatment at OWCP expense to a volunteer following separation. In such instances, OWCP will issue authorization and/or instructions to the former volunteer. However, see paragraph 10 of this chapter for a discussion of those circumstances when the Peace Corps, at its discretion, can pay limited medical costs directly.

d. Emergency Situations. The Cleveland District Office may approve the issuance of an authorization effective the day following termination, prior to receipt of written documentation, if a medical emergency exists or a delay in authorizing medical care would seriously affect the continuity of medical management. The record should show that the agency has completed Form CA-1 or CA-2, or will ensure that it is initiated and submitted to OWCP.

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12. Reporting Injuries and Deaths. Volunteers are required to report injuries in the manner required by 20 C.F.R§§ 10.100 and 10.101; however, for ease of handling while the volunteer is overseas, some special handling processes are used.

a. Timely Filing. If the volunteer sustains an injury or occupational disease while abroad, the volunteer should notify his/her supervisor/PCMO/team leader.

The Peace Corps then typically provides for any medical care needed while abroad and should document the volunteer's medical file accordingly (see 12e below). By documenting the medical file with any treatment provided, a claim (when filed after the end of service) will meet the eligibility for timely filing, which is one of the five necessary elements for acceptance of a claim. See FECA PM 2-0801, which in part provides the following:

For Injuries (and Deaths) on or After September 7, 1974, an original claim for compensation for disability (or death) must be filed within three years after the occurrence of the injury or death under 5 U.S.C. 8122.

(1) If claim is not filed within three years, compensation may still be allowed if written notice of injury or death was given within 30 days as specified in 5 U.S.C. 8119; or the immediate superior had actual knowledge (including verbal notification) of the injury or death within 30 days after occurrence. The knowledge or notification must be such as to put the immediate superior reasonably on notice of an on-the-job injury or death.

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

b. Upon separation, the volunteer should submit Form CA-1 (for traumatic injury) or Form CA-2 (for occupational disease) to the Peace Corps. A single claim form should be filed for each traumatic injury; however, if more than one occupational disease is claimed due to the same time in service, all conditions should be claimed, when possible, on a single Form CA-2.

c. Upon receipt of a form, the Peace Corps should assist with questions; complete its part of the form; and forward the claim to OWCP.

d. The Peace Corps should provide the dates of enrollment and separation, and the dates of service abroad with any claim submitted.

e. Medical File. With the claim form, the Peace Corps should also submit the volunteer's medical record. The Peace Corps maintains a complete medical file for its volunteers. The file usually includes the results of the pre-employment and termination examinations and a record of medical care received during service. This medical information is needed when adjudicating claims. Peace Corps may initially send those portions of the file it deems relevant but OWCP reserves discretion to request and receive the entire medical file.

f. Death Claims. When a death is reported by the Peace Corps, typically via submission of a Form CA-6, the Claims Examiner should promptly send a Form CA-5 to the next of kin, if identified by the Peace Corps.

20 C.F.R§ 10.105 provides detail pertaining to the filing of a death claim and should be referenced as general guidance; however, for Peace Corps cases (that have been reported to OWCP directly by Peace Corps), the Attending Physician's Report on the reverse of Form CA-5 need not be completed, and claimants may be advised to return this form directly to OWCP.

If compensation is ultimately paid, it is computed on a monthly basis, just as it is for Federal employees.

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13. Claims for Disability Compensation. 20 C.F.R§10.102 provides detail pertaining to the filing of a compensation claims (CA-7) and should be referenced as general guidance.

a. If it appears that entitlement to compensation may exist, upon acceptance of a claim the Claims Examiner should alert the volunteer that he/she may file a Form CA-7, if one has not already been received with the Form CA-1 or CA-2. The Peace Corps should also alert the volunteer to the provision of the FECA pertaining to payment of wage loss benefits if it is known that the volunteer is disabled due to a condition stemming from service in the Peace Corps.

b. The date of the volunteer's separation will be the date pay stops. Entitlement to compensation for temporary or permanent disability begins on the date following the date of separation.

c. Peace Corps volunteers are not entitled to continuation of pay (COP).

d. The three-day waiting period provided by 5 U.S.C. 8117 applies to these cases in the same manner as it applies to non-Postal Federal employees.

e. Pay Rate. In keeping with 5 U.S.C. 8142, the monthly pay rate for volunteers is at the minimum rate for a Grade 7. The monthly pay for volunteer leaders is the lowest rate provided for Grade 11 of the general schedule. The annual pay rates for computing compensation are found in Exhibit 1. Note that locality pay is not included.

f. Even though the statute prescribes "monthly" pay, like all other types of claims, payrate calculations are then broken down to a weekly amount for entry into the compensation system.

g. Effective Payrate Date. Section 5 U.S.C. 8101(4), which provides that the pay rate may be based on pay at date of injury, date of recurrence or date of disability, does not apply to Peace Corps volunteers. The effective date of the payrate is the GS schedule payrate on the date of separation.

h. Volunteers are entitled to CPI increases in compensation as provided by 5 U.S.C. 8146a.

i. If a claim for compensation is submitted, the Peace Corps should send a copy of the volunteer's country assignment documentation for the file.

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14. Disability Management. Peace Corps volunteers (and all employees of the Peace Corps) are entitled to all services provided for under the FECA. This includes the full complement of nurse intervention and vocational rehabilitation services provided as part of the Disability Management process. See PM 2-0600.

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Exhibit 1 - Annual Pay Rates for Computing Compensation for Peace Corps Volunteers

 

Date of Injury (Separation)

Volunteers

Volunteer Leaders

09/22/61-10/13/62

$ 5,355

$ 7,560

10/14/62-01/04/64

5,540

8,045

01/05/64-07/04/64

5,795

8,410

07/05/64-10/09/65

6,050

8,650

10/10/65-07/02/66

6,269

8,921

07/03/66-10/07/67

6,451

9,221

10/08/67-07/13/68

6,734

9,657

07/14/68-07/12/69

6,981

10,203

07/13/69-12/27/69

7,639

11,233

12/28/69-01/09/71

8,098

11,905

01/10/71-01/08/72

8,582

12,615

01/09/72-01/06/73

9,053

13,309

01/07/73-10/13/73

9,520

13,996

10/14/73-10/12/74

9,969

14,671

10/13/74-10/11/75

10,520

15,481

10/12/75-10/09/76

11,046

16,255

10/10/76-10/08/77

11,523

17,056

10/09/77-10/07/78

12,336

18,258

10/08/78-10/06/79

13,014

19,263

10/07/79-10/04/80

13,925

20,611

10/05/80-10/03/81

15,193

22,486

10/04/81-10/02/82

15,922

23,566

10/03/82-01/07/84

16,559

24,508

01/08/84-01/05/85

17,138

25,366

01/06/85-01/03/87

17,824

26,381

01/04/87-01/02/88

18,358

27,172

01/03/88-12/31/88

18,726

27,716

01/01/89-01/13/90

19,493

28,852

01/14/90-01/12/91

20,195

29,891

01/13/91-01/11/92

21,023

31,116

01/12/92-01/09/93

21,906

32,423

01/10/93-09/30/93

21,906

33,623

10/01/93-01/07/95

22,717

33,623

01/08/95-01/06/96

23,171

34,295

01/07/96-01/04/97

23,634

34,981

01/05/97-01/03/98

24,178

35,786

01/04/98-01/02/99

24,734

36,609

01/03/99-01/01/00

25,501

37,744

01/02/00-01/13/01

26,470

39,178

01/14/01-01/12/02

27,185

40,236

01/13/02-01/11/03

28,164

41,684

01/12/03-01/10/04

29,037

42,976

01/11/04-01/08/05

29,821

44,136

01/09/05-1/07/06

30,567

45,239

01/08/06-01/06/07

31,209

46,189

01/07/07-04/05/08

31,740

46,974

01/06/08-01/03/09

32,534

48,148

01/04/09-01/02/10

33,477

49,544

01/03/10-01/01/11

33,979

50,287

01/02/11-12/31/11

33,979

50,287

01/01/12-01/12/13

33,979

50,287

01/13/13-

33,979

50,287

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Chapter 2-1800, Housing and Vehicle Modifications

Paragraph and Subject

Date

Trans. No.

Table of Contents

10/09

10-03

1. Purpose

10/09

10-03

2. Authority

10/09

10-03

3. Eligibility

10/09

10-03

4. Medical Development

10/09

10-03

5. Vehicle Modifications

10/09

10-03

6. Housing Modifications for Home Owners

10/09

10-03

7. Housing Modifications for Renters

10/09

10-03

8. Adjudication of Proposals

10/09

10-03

9. Payment for Modifications

10/09

10-03

10. Later Requests for Modification

10/09

10-03

Exhibit 1 - Sample Agreement-OWCP Vehicle Purchase or Modification

10/09

10-03

Exhibit 2 - Sample Agreement-OWCP Housing Modification for Home Owners

10/09

10-03

Exhibit 3 - Sample Agreement-OWCP Housing Modification for Renters

10/09

10-03

Exhibit 4 - Sample Agreement-OWCP Housing Modification for Family-Owned Homes

10/09

10-03

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1. Purpose and Scope. This chapter furnishes guidelines and procedures for considering requests for housing and vehicle modifications. Such medical rehabilitation services help the claimant to maintain or increase independence and quality of life, and, consequently, may reduce the need for future services and their associated costs. Modifications may in some circumstances also reduce or delay the need for residential care and nursing services.

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2. Authority. Housing and vehicle modifications come under the authority of 5 U.S.C. 8103(a) which provides for services, appliances and supplies prescribed or recommended by a qualified physician, which the Secretary considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of monthly compensation. See, D.T., Docket No. 05-1012 (issued August 23, 2006) (ECAB held that OWCP has broad administrative discretion in choosing the means to achieve the goals of section 8103 of the FECA. As the only limitation on the OWCP's authority is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions which are contrary to both logic and probable deductions from known facts).

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3. Eligibility. To be eligible for housing or vehicle modifications, the claimant must be severely restricted in terms of mobility, functionality and independence in normal living functions, on a permanent basis, due to the work-related injury. Examples are impairments that require the use of a prosthesis, wheelchair, motorized scooter, leg braces, crutches, cane, or other self-help device. Such medical conditions include quadriplegia, paraplegia, amputation, total loss of use of limbs, blindness and profound deafness bilaterally.

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4. Medical Development. When a request is received for housing or vehicle modifications, the Claims Examiner (CE) should take initial action within five working days of receipt. The CE should ensure that the original acceptance of the case was proper and that the disability for which the benefit is claimed is related to the accepted injury.

Before considering the technicalities of housing and vehicle modification proposals (paragraphs 5, 6 and 7 below), a determination must be made on the medical necessity of the requested modification. See William D. Farrior, 54 ECAB 566 (2003) (ECAB held that OWCP properly exercised its discretionary authority in denying appellant's request for a new vehicle, as there was insufficient rationalized medical evidence addressing appellant's physical restrictions due to his accepted knee conditions or the need for a motor vehicle modification or new vehicle purchase.)

There are several aspects to consider when reviewing the evidence of record:

(1) Does the level of impairment rise to the level delineated in the eligibility section above?

(2) Does the medical evidence support that the claimant has restrictions or physical limitations which necessitate the modification?

(3) Are these restrictions caused by the accepted work-related condition?

(4) Does the physician provide detailed findings and rationale for the opinion that the claimant's work injury has caused restrictions which necessitate the requested modification? This should come from a physician who is a recognized authority in the appropriate medical specialty.

Note that the modification should result from a restriction. For example, the purchase of a wheelchair or scooter for a claimant does not necessarily mandate that the concomitant modification to a vehicle be made. If the restriction leading to the wheelchair/scooter also prevents the claimant from driving without it, then the vehicle modification would be compensable. On the other hand, if the scooter was provided because the claimant cannot walk long distances but is able to drive an unmodified vehicle, then the OWCP is not responsible for vehicle modifications. In this instance, there is no injury-related restriction that requires the claimant to drive a modified vehicle. (See, M.B., Docket No. 06-701 (issued December 4, 2006) (ECAB held that appellant's physician did not explain why appellant's employment-related accepted conditions required medical treatment which could only be accommodated by purchase of a van.)

If the evidence of record fails to establish medical necessity in consideration of the above criteria, the claimant should be provided with 30 days to submit the needed medical documentation. The questions to the physician should be specific in regard to the injury related restriction which necessitates the requested modification.

Requests for modification are not routinely sent to the District Medical Advisor (DMA). However, if there is a complicated medical issue that requires DMA review, the medical evidence should be forwarded to the DMA for an opinion on the necessity and work-relatedness of the requested modification(s).

If medical eligibility is established, then the CE should proceed with the technical development of the proposed modification in conjunction with the criteria outlined in paragraphs 5, 6 and 7 by requesting a detailed proposal for the requested modifications. These proposals will address the technical, financial and practical elements of the requested modifications. Under certain circumstances, OWCP may assist in developing such proposals by referring the case to a Rehabilitation Specialist (RS), who will assign a Rehabilitation Counselor (RC) to assist the claimant in developing a detailed proposal for the requested modifications. The case may also be referred to a Field Nurse (FN) in some instances to assist with this process.

If the proposed modification is not supported, a formal decision is required as outlined in paragraph 8.

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5. Vehicle Modifications.

a. General Criteria. No vehicle modification should be undertaken without a signed agreement that specifies the nature of the modification and the claimant's responsibilities and obligations under the agreement.

(1) Modifications to a vehicle must be established as necessary and desirable for increased mobility or independence by a recommendation of a physiatrist or other medical specialist appropriate to the type of injury sustained. The medical evidence must establish that the requested modifications are needed because of restrictions caused by the accepted condition(s). See paragraph 4.

(2) Modifications of the present vehicle must be explored before considering a new purchase.

(3) Modifications must be consistent with the claimant's pre-injury standard of living and should approximate that standard insofar as practical. If accessories and equipment are needed for the claimant's present vehicle, OWCP will modify it if it is practical to do so, as determined by the type of vehicle, its age and condition, and the type of equipment needed.

(4) If it is established that the claimant cannot drive his or her present car due to the inability to place a wheelchair in it without assistance, or if it is not practical to modify the present vehicle, OWCP will pay for a suitable car or van (if necessary), taking credit for the trade-in value of the vehicle with the greatest current fair market value owned by the claimant; however, OWCP will not be named on the title for the vehicle.

(a) If the claimant purchases a used car, OWCP will pay the depreciated price of a base-line, otherwise comparable, used car or van of comparable age and condition, with equipment required for the accepted disability. The claimant is responsible for paying the difference between the new or used vehicle allowed by OWCP and the car or van actually purchased and additionally equipped as the claimant desires.

(b) If the claimant purchases a new car or van, OWCP will pay the discounted price of a base-line vehicle of suitable size. The base line vehicle is the most cost effective model upon which the necessary modifications can safely be made. OWCP will also pay the discounted price for additional options required for the effects of the injury and any necessary after-market add-ons, such as hand controls. Wherever possible, optional equipment should be factory-installed.

(5) If a car or van must be purchased by OWCP, it will be the most cost-effective modifiable model with the optional equipment required for the effects of the injury. Hand controls or other special devices will be added to it. If the claimant desires a model that is more costly because of nonessential factors, or desires accessories not required for the injury, he or she must pay the difference in price. OWCP will pay only the discounted price for the suitably sized base-line vehicle with the necessary options and modifications. The claimant will pay any difference resulting from the selection of a more expensive model and/or additional accessories not necessitated by the injury.

(6) Modifications and the additional costs of a new vehicle (when warranted) over the value of the present vehicle will be paid for by OWCP. When a new or used vehicle is purchased, the amount paid by OWCP will be reduced by the trade-in value of the vehicle owned by the claimant with the greatest current fair market value.

(7) Vehicle modifications should be no more expensive than necessary to accomplish the required purpose. Special hand and foot controls and any items which need not be built in should be removable where feasible for transfer to other vehicles.

(8) Vehicle modifications may include what are normally considered comfort or convenience options, if documented by the medical specialist to be necessary for the effects of the compensable disability. In specific cases, it would be appropriate to make payment for such equipment as air conditioning, power brakes, power steering, automatic transmission, power door locks, power windows, rear defogger, or six-way power seat.

(9) Equipment furnished for a vehicle by OWCP should be maintained and repaired at OWCP expense and may be replaced after normal wear and tear. Equipment required for the injury will be repaired and maintained at OWCP expense. Other parts of the vehicle will be repaired, maintained and replaced at the owner's expense even if OWCP paid for the vehicle. Replacement equipment for the present vehicle or similar equipment will be provided on a replacement vehicle if the claimant can establish that the vehicle should be replaced. OWCP may only consider the purchase of a subsequent vehicle when the estimated cost of reasonable mechanical repairs on the current vehicle exceeds its lowest current Blue Book value.

(10) The claimant is required to provide proof of adequate insurance and proper registration of the vehicle in the state of residency. The costs of insurance and registration are the responsibility of the claimant. Claimants are required to carry fire, theft, comprehensive and collision insurance on vehicles paid for in whole or in part by OWCP, but need not maintain collision insurance if the equipment furnished is worth under $200.

(11) The Government is entitled to reimbursement for the value of the modifications when relinquished or no longer needed by the claimant, if the value of the modifications exceeds $10,000 at that time. Reimbursement is due to the Government only in situations where the claimant has had use of the vehicle or vehicle modifications for less than ten years. The value of a vehicle purchased for a claimant, or of automotive accessories such as power steering, automatic transmission and power door locks, will be determined by the lowest current Blue Book figure when the vehicle is sold, traded, or no longer needed by the claimant.

At the time the vehicle or automotive accessory is sold, traded, or otherwise disposed of, the current value of the item is reduced by 10 percent for each year used by the claimant in order to obtain the figure for reimbursement. For example, where the value of the modified vehicle is $10,000 at the time of disposal and the claimant has used it for six years, reimbursement to the Government should be $4,000. The CE should multiply 10 percent by the number of years used (.10 X 6=.60), and multiply the result by the current value of the modified vehicle (.60 X $10,000=$6,000), and subtract the result from the current value ($10,000-$6,000=$4,000) to obtain the reimbursement amount. If the current value is less than $10,000, the above formula will not be applied and the claimant will not be required to reimburse OWCP.

(12) The claimant (and authorized representative if applicable) should be notified of these reimbursement requirements and should sign an acknowledgment of these reimbursement responsibilities. See Exhibit 1.

b. Technical Development.

If medical eligibility has been satisfied, the claimant should be advised of the criteria mentioned in this section. Specifically, the claimant should be notified from the outset that an existing vehicle will be modified whenever feasible, but that any new or used vehicle purchased must be at the discounted price of the most cost-effective base-line vehicle of suitable size, taking credit for the trade-in value of the claimant's present vehicle. If the claimant owns more than one vehicle, the vehicle with the greatest current fair market value will be used to calculate trade-in value. The additional expense of a higher priced vehicle or personal preference options will normally be the claimant's obligation.

When possible, the claimant should submit at least three estimates. An OWCP RC may assist as needed. If it is not possible to obtain 3 bids, the reason should be documented for the record.

Proposals should include the following information:

(1) An itemization of all vehicle modifications proposed. Where substantial modifications are required, the detailed changes should be recommended by a medical rehabilitation professional familiar with the needs of the disabled. When the cost for modifications exceeds $1,000, the professional proposing the modifications must ensure that his or her report justifies the need for and adequacy of the proposed modifications.

(2) Vehicle modification proposals must include the year, make, model and body style of the present vehicle, the number of miles it has been driven, and a description of its general mechanical condition, including any repairs currently needed or anticipated.

(3) If the evidence supports that the claimant's current vehicle cannot be modified and a new vehicle must be purchased, then additional information is needed. Estimates should be provided for the most cost-effective model that can be modified. If the base-line model available comes with extras (like a CD player), then these need not be deducted from the estimate. Any additional options which are not included in the baseline model and not necessitated by the work injury (e.g., a sunroof) are the financial responsibility of the claimant and should be deducted from the estimate.

(4) No fee will be paid for attorneys or similar representatives engaged by the claimant to assist with a proposal. Approved representative's fees remain the claimant's obligation, as discussed in FECA PM 2-1200.

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6. Housing Modifications for Home Owners.

a. General Criteria. No housing modification should be undertaken without a signed agreement that specifies the nature of the modification and the claimant's responsibilities and obligations under the agreement.

(1) Housing modifications must be recommended by a physiatrist or other medical specialist appropriate to the accepted employment condition as necessary and desirable for increased mobility or independence. Before proceeding with a housing modification, the medical recommendation must be current and supported by adequate medical rationale. Rehabilitation services should then be utilized in conjunction with the medical recommendations in order to assist with an on-site visit by a RC or other medical rehabilitation professional. The purpose of the on-site visit will be to provide a report of general requirements that will be necessary to accomplish the medically necessary housing modifications. In addition, the RC or other medical rehabilitation professional will assist in locating architects to draw up plans for modifications when needed, and contractors for building and installing the modifications.

(2) Modifications to a house must be consistent with the claimant's pre-injury standard of living and should approximate that standard insofar as practical. The purpose of the FECA is not to provide an enrichment program in proportion with the severity of the injury sustained. To do so would extend the program beyond the intent and scope of the FECA which is to provide an adequate substitute for an employee's loss of earning ability to provide for his or her living needs. For example: If a claimant must purchase or build a new home because the current residence would not be structurally sound to modify, the new residence must be comparable in size (i.e. square feet of living area) and quality to the currently owned home. Or, if new doors and special door knobs must be installed in the claimant's residence, the quality of the hardware and finish of the doors, the hardware itself, and any molding should be comparable to those being replaced. See Janice Kirby, 47 ECAB 220 (1995) (ECAB held that OWCP did not abuse its discretion to restrict benefits under section 8103 to the new construction of those items necessary to accommodate appellant's injury-related condition. In this case, appellant's parents acknowledge that the construction of the new home intended to accommodate appellant was based on personal and financial considerations and not on the structural unsoundness of appellant's existing home.)

(3) In analyzing a housing modification proposal, it is OWCP's policy to fully explore modifications to a present house before consideration of a purchase or building of a new home. If the claimant elects to purchase a new home or build a new structure, for any reason other than that it would be structurally unsound to attempt to modify the present house, it must be made clear that the OWCP is responsible only for the modifications and relevant plans for the new house which are necessitated by the work injury. In such a situation, OWCP is not responsible for the cost of the new house. The only situations which warrant that the OWCP be involved with helping to purchase or build a new home is where it would be impossible to make the necessary modifications to the present home or that such modifications would cause structural damage to the house.

(a) OWCP will not find that the purchase of or building of a new home is warranted solely on the basis that modifying the present home is too costly. As long as the needed modifications can be achieved without structural damage to the property, OWCP will cover the cost. Also, it would not be considered sufficient reason for the OWCP to assist in the purchase or construction of a new house if the claimant finds that it would be aesthetically undesirable to make an addition to his or her present home. In addition, a claimant's concern that modifications will negatively affect the home's property value is insufficient to warrant purchasing or building a new home for modification rather than modifying the existing structure.

(b) The claimant is required to establish with written certification from at least two professional sources that his or her present home is not structurally modifiable. Such certification from an architect or a licensed building contractor must include a full explanation of why the present home is not structurally modifiable. The OWCP RC may also assist with obtaining this information.

(c) If it is accepted that the present home cannot be structurally modified, other existing home purchase options must be explored and precluded prior to considering new construction. New construction will generally add more delays, time and money, as well as a degree of complexity, and therefore should only be considered if no other option exists. Justifications for construction of a new house must be related to the work injury and not on the basis of personal preference.

(d) Where the present home cannot be modified without structural damage, OWCP will be responsible for the difference between the cost of the new house and that of the existing house. If the claimant purchases a house that represents an increase in his or her standard of living, due to personal preference, the cost of the upgrade will be the claimant's responsibility. For example: If the claimant owns a house worth $100,000 with a mortgage at the time of sale of that house of $85,000, his or her position at the time of purchasing or building the new home should be that he or she owes $85,000 on the new mortgage. OWCP does not purchase the house but will make up the difference up to the worth of the present residence, i.e., $100,000. In such a case, the responsibility of OWCP would also include housing modifications and modifications to the architectural plans. See, e.g., Wayne G. Rogers, 54 ECAB 482 (2003). However, OWCP is providing purchase assistance and is not purchasing the house. Therefore, neither OWCP nor any Government agency will be named on the deed to the house in such an arrangement.

(4) If the claimant lived in his or her own house at the time of injury and makes the decision to buy or build a new home for reasons other than those described above, OWCP will pay only the cost of modifying a suitable house. The OWCP will not pay moving expenses. If the claimant decides on his or her own to purchase or build a new house, the OWCP will only pay any extra expenses in altering the plans and for medically necessitated modifications to the new house.

(5) Modifications will be consistent with the current home and no more expensive than necessary to accomplish the required purpose. For example, in remodeling a bathroom, it may be feasible to remove and reinstall an existing sink to wheelchair height, rather than discard it and buy a new sink. If the existing sink cannot be used, purchase of the most cost-effective comparable sink that will fulfill the purpose of providing accessibility will be approved. Another example involves access issues related to ramps, lifts and elevators. When determining the most appropriate mode of access to or within a home, the most cost-effective modification should be selected. Each item for modification should be assessed in terms of safety, accessibility and cost-effectiveness, as well as meeting the injured worker's pre-injury standard of living, as is practical. The specification of a particular product brand should be avoided unless it is established that a single name brand is the most cost-effective means of meeting the requirement for the modification.

(6) The cost-effectiveness of modifications to meet a temporary need, when the physician anticipates a prolonged recovery, should be considered against long-range tangible and intangible benefits, such as facilitating recovery, reducing the length of hospitalization or confinement in other care facilities, or reducing the need for an attendant.

(7) Modifications may include what are normally considered to be comfort or convenience accessories, if needed for the effects of the compensable injury. In specific cases, special heating, air conditioning and air filtration devices may be necessary based on the nature of the accepted condition. For example, such items might be required for an individual with a respiratory or cardiac ailment, and the physician recommending the accessories would be responsible to explain such needs. In addition, if a generator is being requested, the CE should consider if there is equipment that needs to be backed up by a generator in the event of a temporary power outage in order to preserve health or life.

(8) Once a Housing Modification Plan is approved, any changes to the OWCP funded modifications must be submitted by the contractor. The changes must be approved by OWCP via written change orders prior to the change being initiated, unless the change is related to items that the claimant will be responsible for paying.

(9) Once the housing modification is approved, the contractor may find more extensive repairs are needed in order to pass inspection. For example, after tearing down a wall more extensive work is needed due to problems hidden by the wall. While the repairs may not be specifically related to the disability, the contractor cannot proceed without correcting the new problem. These additional repairs should be approved if necessary to complete the approved modifications.

(10) Contractors are required to provide proof of license and insurance. Prior to authorizing a plan, the local licensing board or other similar entity should be contacted by the RC to insure that there are no significant infractions reported against the contractor, such as poor work or fraudulent activity.

(11) The RC must verify local permit requirements. Permits are to be obtained in localities where they are required. If no permit is required and completed work is questionable, OWCP can pay for a 3rd party inspection such as a city or county building inspector.

(12) Equipment required due to the work injury and furnished by OWCP for the present house or new house will be maintained, repaired and replaced as needed after normal wear and tear at OWCP expense.

(13) The claimant is required to provide proof of adequate insurance. Claimants must carry home owner's insurance that reflects the present value of their house, unless the modifications were furnished at a cost under $1,000.

(14) The Government is entitled to reimbursement for the value of any housing modifications when relinquished or no longer needed by the claimant if the value at that time exceeds $10,000 after applying a sliding scale, which is explained below. When disposing of modified property, the sliding scale must be applied to any enhanced value over $10,000, and that amount must be returned to the Government. See Minne B. Lewis, 53 ECAB 606 (2002) (ECAB upheld OWCP's repayment provisions as they "prevent unjust enrichment." ECAB stated that without them a claimant who has received a Government subsidy to purchase property could turn a quick profit by simply selling the property. OWCP procedures requiring reimbursement to the government attempt to return the claimant, after the property is relinquished, to substantially the same position he or she enjoyed previously.)

For example, if an elevator is installed in the claimant's house and the house is later sold, the OWCP should be reimbursed from the proceeds of the sale for the current value of the elevator, if it exceeds $10,000 after applying the sliding scale. The current value may be determined in any reasonable, equitable manner, such as estimates from real estate sources, bank appraisers, or by comparing recent sale prices of similar houses without the special equipment.

A sliding scale is used to determine the remaining enhanced value at the time the house or housing modification is relinquished or no longer needed by the claimant. The amount of reimbursement due to the Government will be reduced gradually. If the claimant leaves the modified home after one year of residence, the amount of reimbursement due the Government would be 90% of the total disbursements made for the purchase and/or housing modifications. After two years of residence in the modified home, the amount of the reimbursement to be sought by OWCP would be 80% of the disbursements. The amount of the reimbursement due the Government would continue to reduce annually, with a reduction to zero after ten years of residency has elapsed.

While some modifications may decrease rather than increase the value of a home, no reimbursement to the claimant can be made for any reduction in the value of the house resulting from modifications which may inconvenience prospective purchasers.

(15) The claimant (and authorized representative if applicable) should be notified of these reimbursement requirements and should sign an acknowledgment of these reimbursement responsibilities. See Exhibit 2.

(16) If a house has been modified, the claimant must notify OWCP before any move which may result in a claim for further housing modifications. A claimant who sells a modified house is liable for modifying any future residence absent a claims-related reason for the move and prior OWCP approval (see paragraph 10 below).

b. Technical Development. If medical eligibility has been satisfied, the claimant should be advised of the criteria mentioned in this section. Specifically, The claimant should be advised that proposed housing modifications should be of a quality and finish level consistent with his or her present residence but not superior to it. (For example, builder grade cabinets will be replaced with similar cabinets, not expensive custom cabinets). Likewise, proposals should mention the type of materials being used rather than concentrating on a specific brand name. The most cost-effective means of accomplishing the modification should be provided in the proposal. The claimant should also be advised that if it is established that it is not structurally feasible to modify the present residence, a move to a comparable residence which could be properly modified should be considered. While it is the claimant's own decision, OWCP will not pay for modifications that would compromise the structural soundness of the residence.

When possible, the claimant should submit at least three bids in the proposal. Typically, an OWCP RC will assist with this process. If it is not possible to obtain three bids, the reason should be documented for the record. The bids should be commensurate in the level of detail provided and address all needed modifications so that comparisons between them will be accurate. Bids should be submitted by licensed and insured contractors.

Proposals should include the following information:

(1) Three bids which contain an itemization of all modifications proposed. The materials, labor, and associated fees for accomplishing these modifications should be listed and a time frame for completing them provided. Only modifications approved by the OWCP (based on medical evidence) will be paid for by the OWCP. Additional modifications and/or optional material upgrades are the responsibility of the claimant. For ease of comparison, each bid should separate the costs assumed by each party (claimant and OWCP) where necessary.

(2) When the cost for modifications exceeds $5,000, the RC coordinating the modifications must ensure that an on-site review is performed to justify the need for and adequacy of the proposed modifications. Reasonable fees will be paid for the medical rehabilitation professional's visit to the home and detailed recommendations. If necessary, the RC can utilize an accessibility specialist and OWCP will pay a reasonable fee for an on-site analysis. Documentation of the site visit should be included with the proposal.

(3) If construction work is required, a binding estimate of the cost from three reputable contractors is needed. Customarily, no fee will be paid for such bids, since they are normally supplied to prospective purchasers free of charge. Reasonable fees for bids can be considered for extensive home modifications if it can be established that it is the usual practice for the extent and degree of the home modification in the specific locale. Reasonable fees will be paid for preliminary architect's sketches when significant structural changes requiring architectural services are needed. If special accessories or devices are requested, the CE should stipulate that the price given by the vendor includes any necessary installation. The bid selected will be the lowest of any acceptable means of achieving the desired result. The lowest prices will be accepted unless there is sound reason for a higher price, such as increased durability or degree of contractor experience and/or established record of working with accessibility design issues.

(4) No fee will be paid for attorneys or similar representatives engaged by the claimant to assist with a proposal. Approved representative's fees remain the claimant's obligation, as discussed in FECA PM 2-1200.

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7. Housing Modifications for Renters.

a. General Criteria. The status of renter includes claimants who are or were living with parents or other family members at the time the work injury occurred. Modifications to rental property must be approved by the property owner. A signed agreement is required which acknowledges that the modifications are being paid for because the property owner has agreed to house the claimant and further acknowledges the property owner's reimbursement responsibilities to OWCP.

No housing modification should be undertaken without this kind of signed agreement that specifies the nature of the modification and the claimant's, as well as the home owner's or apartment owner's, responsibilities and obligations under the agreement. See Exhibit 3 or 4 depending on whether the claimant is renting or living with a family member.

Many of the criteria outlined in paragraph 6 for home owners apply also to claimants who rent housing. A few specific criteria for renters are below:

(1) In a rental property, all modifications proposed must be recommended by a physiatrist or other medical specialist appropriate to the accepted employment condition, just as in a property owned by the claimant. The proposal must be reviewed by the CE and approved as necessary and desirable for increased mobility or independence.

(2) If the claimant lives in rented premises, a statement from the property owner authorizing the proposed changes should be included in the proposal. This includes a situation in which the claimant is living in a parent's or other relative's home. OWCP should conduct a conference with the landlord to assess the level of commitment to continue renting to the injured worker after the modifications are accomplished. There should be some level of assurance that the landlord will continue to rent the modified property to the injured worker for an extended period of time considering the extent and cost of the modifications.

(3) If the claimant is renting and the owner of the property will not permit necessary modifications, other living arrangements may be subsidized, such as paying moving expenses to other rented quarters as comparable as possible to the present residence. OWCP should also pay any difference in rent. However, a claimant who is renting his or her living quarters should not expect any assistance from OWCP for purchasing or constructing a new house.

(4) Modifications to an apartment must be in keeping with the standard of the decor of the current or pre-injury apartment accoutrements. For example, if the claimant's apartment has two sinks in the master bath and the claimant needs a special sink for wheelchair access, both sinks will be replaced or modified in order to preserve the symmetry of the room. If the tile in the bathrooms or kitchen needs to be replaced in order to accomplish the proposed modification, the new tile should be of a quality equal to that which must be replaced.

On the other hand, just as in a privately-owned residence, cost-effectiveness and practicality are essential criteria to be used when considering proposed modifications. If an existing sink can be reinstalled at another height [see this chapter paragraph 6.a(5)] to achieve the required modification, this is preferable to discarding it and replacing it with a new sink.

(5) Similarly, when a claimant lives in a rented walk-up apartment prior to the injury and can no longer climb stairs, the difference in rent may be paid for the most nearly comparable elevator apartment available. The CE must ensure that the proposed apartment is equivalent to the pre-injury living quarters in terms of living area, amenities and community desirability.

(6) If a renter living in a remote area needs a modification not allowed by the property owner, and there is no rental property available within a reasonable distance, the feasibility of relocation, new construction, or any other viable option should be weighed.

(7) For true rental situations, the claimant is required to provide proof of adequate insurance. Claimants must carry renter's insurance that reflects the present value of the belongings within the residence, unless the modifications were furnished at a cost under $1,000. If the claimant is living with a family member, the home owner should carry the insurance.

b. Technical Development. The technical development of the housing modification will take the same course for renters as for the home owners described in the prior paragraph, with the exception that the landlord or home owner must agree to the modifications.

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8. Adjudication of Proposals.

a. Medical evidence as described in paragraph 4 above is required. A claimant seeking a housing or vehicle modification should be advised to submit the requested documentation needed to establish medical necessity. If the claimant fails to submit the necessary documentation, a formal decision with appeal rights should be issued. This decision should discuss the evidence of record and provide an explanation of why it is insufficient to support the medical necessity. Technical development of a proposal, or review of a submitted proposal, is not necessary if the evidence of record does not establish that the proposed modifications are necessitated by work-related restrictions.

b. If medical necessity is established, then technical development to establish the criteria noted in paragraphs 5, 6 or 7 is warranted. As noted previously, it is often necessary to have an OWCP RC or FN involved in this process. The CE will review the itemized proposal and determine whether the specified modifications are warranted. This would be an appropriate time for a telephone conference between the CE, the claimant, the RS, the RC, the FN and the party performing the modification (as appropriate) to discuss the proposal, particularly if changes to, or clarification of, the proposal are needed before authorization can be given.

c. The CE's recommendations for approving proposals are to be routed to the Senior Claims Examiner (SrCE), regardless of the cost involved. If the proposal is approved, the SrCE should send an approval letter along with a written agreement which details the terms and conditions of the authorization (see Exhibits 1-4).

d. If the recommendations are denied, in whole or in part, a formal decision with appeal rights is to be drafted for the signature of a SrCE or higher. If the recommendations require further development, the case should be returned to the CE with appropriate comments and instructions.

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9. Payment for Modifications.

a. SrCEs are required to review all proposals and may authorize housing and vehicle modifications in amounts up to $50,000. Supervisory Claims Examiners are authorized to approve housing and vehicle modifications in amounts up to $100,000. Housing and vehicle modifications in amounts over $100,000 are to be approved by the Assistant District Director or District Director.

b. Bills including installation work or construction work must be accompanied by the claimant's (or the RC's) statement showing that the work covered by the payment has been accomplished satisfactorily. Construction expenses should be paid promptly as the job progresses, to coincide with "draws" on the claimant's construction contract.

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10. Later Requests for Modification. After a vehicle or house has been modified, the claimant may request modification of a different vehicle or house.

a. Vehicle. It is expected that even a vehicle which is regularly maintained will eventually require replacement. Its value should be determined by the lowest current Blue Book figure when the vehicle is sold, by the actual purchase price, or by the trade-in value, whichever is highest. The amount should be subtracted from the cost of any new vehicle authorized.

b. House. Payment for modification of a subsequent house for both home owners and renters may be authorized under very limited circumstances. Any subsequent move must be undertaken for a reason related to the claim, and detailed rationale should be provided before the move is to occur.

Acceptable reasons include the need to obtain more sophisticated medical care or a medical need to live in a different environment. Reasons not accepted as justification for modification of a different house include personal preference for a different locale or the desire to be closer to family for additional support. If the reason given is deemed acceptable, the CE should document the file to reflect this decision so that any expenditure in modifying the new house can be justified. See e.g. John Yera, Docket No. 00-2476 (issued June 18, 2002) (ECAB held that OWCP was within its guidelines and discretion in denying appellant's request for a modification of a different residence as appellant voluntarily transferred to Virginia in an effort to utilize his specialized skills in the area of Internet crimes. ECAB found that the reasons advanced by appellant for accepting the position in Virginia were neither persuasive nor convincing to justify an approval of a modification to a second home.)

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Exhibit 1 - Sample Agreement-OWCP Vehicle Purchase or Modification

Memorandum of Agreement - Vehicle Modification

This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for the purchase of and/or the modifications to your vehicle. These vehicle modifications are approved based upon limitations caused by your accepted work injury.

The undersigned agree to the following:

1. OWCP will pay for the purchase of the following vehicle and the specific modifications identified below. In purchasing your vehicle, OWCP will take credit for the trade-in value of the vehicle you own with the highest current fair market value.

For new vehicle purchase, list trade-in vehicle, approved new vehicle and all approved modifications.

OR

OWCP will pay for the specific modifications to your existing vehicle as identified below.

For existing vehicle modifications, identify existing vehicle and list all approved modifications.

2. You will provide proof of adequate insurance and proper registration of the vehicle in the state of residency. You are required to carry fire, theft, comprehensive and collision insurance on vehicles paid for in whole or in part by OWCP, unless the equipment furnished is worth under $200. You understand that you are responsible for paying annual taxes, insurance costs, and all registration fees for the vehicle.

3. Equipment required for your injury and furnished for your vehicle by OWCP will be repaired and maintained at OWCP expense. All other parts of the vehicle will be repaired, maintained, and replaced at your expense even if OWCP has paid for the vehicle.

4. You understand that if and when the vehicle, item, or modification is no longer needed, you will be entitled to retain it if the value (or enhanced value) is less than $10,000. If the value of a vehicle, an enhancement to a vehicle, or any other item furnished for your vehicle is greater than $10,000 when relinquished by you, the amount of value above $10,000 must be reimbursed to the Department of Labor in a percentage of the total value based on the period of use. If you have used the vehicle, enhancement, or other item for one year, the amount to be reimbursed to the Department of Labor would be 90% of the value above $10,000. The amount to be reimbursed will be reduced by 10% annually until it reaches zero (0%) after 10 years of your use.

By signing this agreement, all parties indicate an understanding of and agreement with the conditions set forth above regarding the vehicle purchase and/or modifications.

 

_______________________________________      Date: ___________
Claimant
CLAIMANT NAME

 

_______________________________________      Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME

 

Agreement Prepared By:

Name:
Title:
Date:

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Exhibit 2 - Sample Agreement-OWCP Housing Modification for Home Owners

Memorandum of Agreement - Housing Modification

This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for modifications to your property at ADDRESS. These housing modifications are approved based on limitations caused by your accepted work injury.

The undersigned agree to the following:

1. You agree to the renovations described below. OWCP will pay for these modifications, and only these modifications, as described in the attached document from CONTRACTOR NAME.

List all approved modifications here. If necessary, list subcategories such as general construction, plumbing work, etc.

2. You will notify OWCP before any move which may result in a claim for a new house or a claim for modifications on a new house.

3. You agree that you will provide proof of adequate insurance, including home owner's insurance that reflects the value of your house, upon completion of the approved renovations. You will send proof of insurance to OWCP once renovations have been completed.

4. You must notify OWCP if you intend to relinquish your ownership of the house.

5. You understand that the Government is entitled to reimbursement for the value of the home modifications described in this agreement if the property is relinquished or the modifications are no longer needed if the value at that time exceeds $10,000. If the value is greater than $10,000 when relinquished or no longer needed by you, the amount of value above $10,000 must be reimbursed to the Department of Labor in a percentage of the total value based on the period of use. The Government agrees that the value of the home modifications will decrease at the rate of 10 percent of the total per year for every year that you reside at the property. For example: If the home modifications are completed in December of 2009 and you reside in the house until December of 2015, the value of the renovations would have decreased by 60% in that time. The Government at that time would be entitled to reimbursement for 40% of the amount paid for the modifications. If you live in the home and require the modifications for 10 years, the Government is no longer entitled to any reimbursement amount. The government will not seek reimbursement of any amount until you no longer have need for the modifications or the home.

By signing this agreement, all parties indicate an understanding of and agreement with the conditions set forth above regarding the housing modifications to be completed at ADDRESS.

 

_______________________________________      Date: ___________
Claimant
CLAIMANT NAME

 

_______________________________________      Date: ___________
Co-owner(s) of the home (if applicable)
CO-OWNER'S NAME

 

_______________________________________      Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME

 

Agreement Prepared By:

Name:
Title:
Date:

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Exhibit 3 - Sample Agreement-OWCP Housing Modification for Renters

Memorandum of Agreement - Modification to Rental Property

(Office of Workers' Compensation Programs and Claimant)

This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for the modification of an apartment to be used as your primary residence. The apartment at ADDRESS is a # bedroom, # bath unit with # square feet. The initial length of lease will be # years.

The undersigned agrees to the following:

1. OWCP will pay for modifications to the apartment and building common areas as detailed below, provided that the landlord concurs with the proposed modifications. The modifications to the apartment are as follows:

List all approved modifications here. If necessary, list subcategories such as general construction, plumbing work or common area work (such as handicapped parking spots or ramps not actually inside the rental unit).

2. The claimant agrees to occupy the apartment for the entire period of the lease as his or her residence and to obtain renter's insurance. The claimant will send proof of insurance to OWCP once renovations have been completed.

3. The claimant agrees to reside in the apartment for the length of the lease as noted above and to notify OWCP before any move which may result in a claim for new modifications.

4. The claimant agrees that the apartment may not be subleased to any other party or parties, and that the claimant has obtained signed written concurrence of the building management for these modifications, a copy of which is attached to this agreement.

 

______________________________________      Date: ___________
Claimant
CLAIMANT NAME

 

______________________________________      Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME

 

 

Agreement Prepared By:

Name:
Title:
Date:

 

Memorandum of Agreement - Modification to Rental Property

(Office of Workers' Compensation Programs and Landlord)

LANDLORD'S WRITTEN CONCURRENCE TO THE PROPOSED MODIFICATIONS

I, OWNER'S NAME, the owner of ADDRESS consent to the physical modifications planned by CLAIMANT and his/her representative in order for CLAIMANT to live in the apartment. The initial length of the lease will be # years. I understand that these modifications to the apartment and common areas (and only these modifications) will be paid for by the Office of Workers' Compensation Programs as outlined below:

  • The items listed here should be the same as those provided on the claimant agreement.

 

 

 

_______________________________________     Date: ___________
Owner's signature
OWNER'S NAME
ADDRESS, WITH APT #

 

 

Agreement Prepared By:

Name:
Title:
Date:

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Exhibit 4 - Sample Agreement-OWCP Housing Modification for Family-Owned Homes

Memorandum of Agreement - Housing Modification

(Office of Workers' Compensation Programs and Claimant)

This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for the modification of your primary residence, even though you are not the owner of said residence.

It is understood that you do not own the property at ADDRESS, but that you are living with a family member (SPECIFY) and plan to continue living at this residence. These housing modifications are therefore being approved based on the property owner's (OWNER NAME) agreement to provide housing to you on an ongoing and continuous basis and that the modifications in question are needed due to the limitations caused by your accepted work injury.

The undersigned agrees to the following:

1. OWCP will pay for modifications to the residence as detailed below, provided that the property owner concurs with the proposed modifications. The modifications to the residence are as follows:

List all approved modifications here. If necessary, list subcategories such as general construction, plumbing work, etc.

2. The claimant agrees to reside in this residence and to notify OWCP before any move which may result in a claim for new modifications.

 

_______________________________________      Date: ___________
Claimant
CLAIMANT NAME

 

_______________________________________      Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME

 

 

Agreement Prepared By:

Name:
Title:
Date:

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