1998 FECA Circulars Archive

1998 FECA Circulars which have previously been issued by the DFEC but have since been superseded by another Circular or inclusion in the FECA Procedure Manual.

Fiscal Year 1998
Circular	Subject
FECA Circular No. 98-01	Selected ECAB Decisions for January - March, 1997 (02/98A)
FECA Circular No. 98-02	Revised Forms CA-1, CA-2, CA-5, CA-5b, CA-6, CA-7, and CA-20, CA-8, and CA-20a, CA-16, and CA-17 (11/97A)
FECA Circular No. 98-03	Dual Benefits - FERS (11/97A)
FECA Circular No. 98-04	Code Changes for the Departments of Agriculture, Defense, Navy, Transportation, Treasury, and Veterans Affairs, and the General Services Administration, National Aeronautics and Space Administration, and Other Establishments, Case Management Users' Manual, Appendix 4-7 (11/97A)
FECA Circular No. 98-05	Dual Benefits - FERS COLA (11/97A)
FECA Circular No. 98-06	Selected ECAB Decisions for October - December, 1996 (11/97B)
FECA Circular No. 98-07	Current Interest Rates for Prompt Payment Bills and Debt Collection (01/98A)
FECA Circular No. 98-08	Revised Forms - CA-16 and CA-17 (02/98)
FECA Circular No. 98-09	Current Interest Rates for Prompt Payment Bills and Debt Collection (07/98B)
FECA Circular No. 98-10	Pay Rates: Inclusion of Extra Pay Authorized Under the FLSA (08/98A)
FECA Circular No. 98-11	Bill Payment/BPS - Procedure Code Modifiers (10/98A)
FECA Circular No. 98-12	Selected ECAB Decisions for October - December, 1997 (10/98A)

Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-01

January 27, 1998

SUBJECT: SELECTED ECAB DECISIONS FOR JANUARY - MARCH, 1997

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.

Of particular interest is the decision in Donald E. Ewals, which deals with performance of duty/compensable employment factors. This decision is included in its entirety, as well as in summary form. Additional topics addressed in the summaries are schedule awards, parent dependency, loss of wage-earning capacity determinations based on actual earnings, refusal of suitable work, use of unsigned investigative reports, and the relevance of disability determinations made by other programs to eligibility for FECA benefits.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

AUGMENTED COMPENSATION - PARENT DEPENDENCY

Josephine Bellardita, Docket No. 95-346, Issued February 26, 1997

In this case, the Board reiterated its position with respect to claiming a parent as a dependent.

Section 8110(a)(4) of the Act states, "For the purposes of this subsection, 'dependent' means parent, while wholly dependent on and supported by the employee." In previous decisions, the Board has defined "wholly dependent" as "[having] no consequential source as means of maintenance other than the earnings of the employee." They have also stated that the dependent may have some inconsequential or slight earnings or savings, or some other slight property.

In Joan L. Harris (33 ECAB 1620 [1982]), $284.30 per month in Social Security benefits was not considered to be an inconsequential or slight source of income. In this case, the claimant's mother received $480.00 per month in Social Security benefits, and $69.00 and $48.00 per month in pension benefits. These are not considered to be inconsequential or slight sources of income under the Act, and the mother was therefore not a dependent under the FECA. The fact that the mother might be considered an eligible dependent by other agencies, including the Internal Revenue Service, was irrelevant.

DISABILITY DETERMINATIONS UNDER OTHER BENEFITS PROGRAMS

Elmore T. Carter, Docket No. 97-121, Issued January 9, 1997

The interesting portion of this decision concerns the relevance of disability determinations made by other benefits programs to eligibility for benefits under the Federal Employees' Compensation Act. In this case, the claimant had submitted a decision of the Social Security Administration in support of his request for reconsideration. The Board stated:

the decision of an administrative law judge finding that an appellant is disabled under the Social Security Act for purposes of receiving social security benefits is not dispositive in this case because, as the Board has previously held, entitlement to benefits under one act does not establish entitlement to benefits under the [FECA] Act [Daniel Deparini, 44 ECAB 657, 1993]. In determining whether an employee is disabled under the Act, the findings of the Social Security Administration are not determinative of disability under the Act. The Social Security Act and the Act have different standards of medical proof on the question of disability. Therefore, disability under one statute does not establish disability under the other statute. Furthermore, under the Act, for a disability determination, appellant's injury or occupational disease must be shown to be causally related to an accepted injury or factors of his federal employment. Under the Social Security Act, conditions which are not employment related may be taken into consideration in rendering a disability determination.

LOSS OF WAGE-EARNING CAPACITY - ACTUAL EARNINGS

Monique L. Love, Docket No. 95-188, Issued February 28, 1997

In this case, the claimant returned to full-time work in a modified distribution clerk position after a period of total disability. The Office subsequently determined that the modified job fairly and reasonably represented the claimant's wage-earning capacity, and that she was not entitled to compensation for wage loss because her earnings in the new job exceeded the contemporaneous rate of pay for her old job. The claimant had been working in the new job for more than sixty days at the time the Office issued its decision.

The Board affirmed the Office's decision. In doing so, the Board reviewed several arguments made by the claimant, which disputed the correctness of the decision. The claimant argued that the Office did not make a reasoned determination regarding whether her earnings as a modified distribution clerk fairly and reasonably represented her wage-earning capacity because it did not adequately consider whether the position was a "sheltered" position, designed for her particular needs. The Board found that the record did not contain evidence that the position was part-time, sporadic, seasonal, or temporary, or that it was a make-shift position designed for the claimant's needs. They noted the dissimilarity between this situation and those found in other decisions where the actual earnings did not represent the claimant's wage-earning capacity (Michael A. Wittman, 43 ECAB 800, and Elizabeth E. Campbell, 37 ECAB 224).

The claimant also argued that the Office must consider the seven criteria enumerated in section 8115(a) of the Act when determining whether actual earnings fairly and reasonably represent wage-earning capacity. The Board noted that the seven criteria were to be considered only when evaluating the appropriateness of a constructed position as a measure of wage-earning capacity.

PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT

Donald E. Ewals, Docket No. 94-2604, Issued February 6, 1997

In recent years, a large number of ECAB decisions which discuss the necessity of distinguishing between compensable and non-compensable employment factors have been included in the quarterly ECAB summaries. The reasons for this are many: the complicated issues involved in making such distinctions; the high ECAB remand rate on this issue; and the rising number of claims which require this type of case development. Claims examiners have become increasingly skilled in delineating between compensable and non-compensable employment factors in both statements of accepted facts and formal decisions.

This case was on appeal previously before the Board. A summary of the prior decision, Docket No. 92-1291, issued October 8, 1993, was included in FECA Circular No. 94-8, which was published on May 26, 1994. At that time, the Board remanded the case for further development of the factual evidence, preparation of a statement of accepted facts, and referral for medical evaluation. They stated that non-compensable factors of the claimant's employment included internal reorganization of the claimant's agency, proposed procedural changes, and the supervisor's non-response to the opinions of program managers, because reaction to these matters would arise out of the claimant's desire to work in a particular environment, rather than his assigned duties. They did find, however, that compensable factors could arise to the extent that the changes in the agency affected the claimant directly in the performance of his regular or specially assigned duties. They found that personnel matters involving use of sick leave, controls placed on the use of sick leave, counseling concerning leave, and requests to undergo fitness-for-duty examination are not compensable factors, without a finding of error or abuse on the part of the employer. They found that the claimant alleged that changes in stock numbers for repair parts had increased his work load, and directed the Office to develop this matter. They also found that the Office had not made findings on the claimant's allegations of verbal abuse by his supervisor.

Upon return of the case to the district office, after additional development of the factual evidence, the Office again denied the claim on the basis that the evidence of record failed to demonstrate that the claimed injury occurred in the performance of duty. The Board found that the case was not in posture for decision, and remanded it for further development, including medical referral. Because the discussion is so lengthy, the entire decision is attached. To summarize briefly, the Board found that: (1) the Office failed to follow the Board's previous instructions; (2) the Office erred in not making a distinction between disagreement with changes in policy (non-compensable) and the effects of policy changes on assigned duties (compensable); (3) several instances of verbal abuse by his supervisor would be considered compensable factors of employment, as would his tense relationship with his supervisor; and (4) the Office had erred in stating that a finding of harassment must be made by an authority other than the Office, and that in the absence of such a finding, the Office would assume no harassment had occurred.

REFUSAL OF SUITABLE WORK - RETROACTIVE DETERMINATIONS; USE OF UNSIGNED INVESTIGATIVE REPORTS

Ricky L. Harrison, Docket No. 94-2570, Issued January 7, 1997

This claim was accepted for a lumbar strain. At the time of injury, the claimant, a Postal worker, had just transferred to a job in Des Moines, Iowa, after a reduction in force at his local office. The commute to Des Moines from his home was approximately two hours long.

The claimant's treating physician, a Board-certified orthopedic surgeon, reported that the claimant could return to a light-duty position, with restrictions, working four hours per day for the first two weeks, six hours per day the second two weeks, and perhaps eight hours per day after that. He also stated that the claimant should not commute to Des Moines, but if no alternative was available, he could work in Des Moines three days per week, four hours per day.

The claimant returned to work in Des Moines for four hours of light duty on March 19, 1993, but sought emergency room treatment later that day and did not work further. The attending physician stated that the claimant's back condition had been exacerbated by the commute on March 19.

On June 1, 1993, the attending physician reported that the claimant could return to work at a local office with restrictions, beginning with four hours per day, and increasing hours to six, and then eight per day. The Office referred the claimant to a Board-certified orthopedist for a second opinion evaluation. The second opinion examiner concluded that the claimant could return to work four hours per day, and work up to eight hours per day after three months, and that although he was resistant, he was able to commute to Des Moines.

The Office found that there was a conflict of opinion regarding whether the claimant could commute to Des Moines, and referred the claimant for evaluation by an impartial orthopedic surgeon. The impartial examiner agreed with the physical restrictions outlined by the previous physicians, and stated that he was able to commute to Des Moines.

In the meanwhile, the Office received unsigned reports from Postal inspectors which stated that the claimant had been observed driving 200 miles round trip for two days, sitting at a horse show for two hours without getting up in April, 1993, and lifting and carrying bales of hay weighing 40 to 60 pounds each on April 3, 1993. This information was provided to the impartial examiner, along with the report of an MRI scan, and he was asked whether there were objective findings of disability beginning March 20, 1993. The impartial examiner responded that the MRI findings were not consistent with the claimant's symptoms, and that he had suffered a myofascial strain from which he had now recovered. He stated that the claimant could return to light-duty work full-time for one month, then resume regular work. He noted that his recommendations had changed in light of the additional information which had been sent to him (concerning driving long distances, lifting bales of hay, etc.).

The Office issued a proposed termination of compensation, based on the impartial physician's report, stating that the claimant had recovered from his employment injury. The claimant's representative submitted affidavits from the claimant's spouse and daughter refuting the report of the Postal inspectors.

The Office advised the claimant that the light duty position which had been offered to him on March 9, 1993 (and which he worked on March 19 only, but not thereafter) was found to be suitable, that the job was still available, and that failure to accept a suitable job without good reason was basis for termination of compensation. He was given 30 days to advise the Office if he had good reasons for not accepting the limited-duty offer.

The claimant's representative responded that the claimant wanted to accept work made available to him within his physician's restrictions, and submitted a report from the attending physician which reiterated the previous restrictions, and stated that the claimant should not commute a long distance, but rather work in the local area.

The Office issued a compensation order denying benefits, because there was no causal relationship between the injury and the claimed disability, and because since no recurrence of disability was established as of March 20, 1993, the claimant had abandoned suitable employment.

The Board found that the Office did not meet its burden of proof to terminate benefits. They found that the initial report of the impartial specialist represented the weight of the medical evidence. In that report, the specialist found that partial disability continued, but that the claimant was able to return to work as of June, 1993. The specialist later stated that the claimant's work-related condition had resolved, based upon information from the Postal inspector reports. However, since these reports were not signed, they could not be presumed to be factual, and a medical opinion based on them would be of diminished probative value. The Office did not establish by the weight of the medical evidence that disability had ceased, and had not therefore met its burden of proof.

In addition, the Board found that the Office improperly determined that the claimant had abandoned suitable work. First, the record did not contain a description of the light-duty job, and so the Board was unable to determine why the Office found the job suitable, given the claimant's work restrictions. Secondly, the Office may not make retroactive determinations of suitability. The Office did not find that the job was suitable until after the claimant had returned to work, and then stopped working. By making a retroactive suitability determination, the Office deprived the claimant of the opportunity to return timely to the job.

SCHEDULE AWARD - APPLICATION OF PROGRAM MEMORANDUM NO. 88

Edward Szela, Docket No. 95-881, Issued February 19, 1997

The claimant in this case was awarded 25 percent permanent impairment of his right middle finger, based upon partial amputation of the distal phalanx. The physician who provided the information used to calculate the award did not provide a percentage of impairment, but did state that less than 50 percent of the distal phalanx had been amputated, and gave range of motion measurements for the joints of the finger. This report was reviewed by an Office medical advisor, who cited FECA Program Memorandum No. 88, stated that the amputation as described equals a 25 percent loss of function, and further stated that the loss of range of motion of the digit was "included as expected residuals" and was thus not supposed to be calculated separately.

The Board set aside the Office's decision. They noted that FECA Program Memorandum No. 88 provides:

If there is loss of less than one-half of the first phalanx of a digit with some loss of bone, or amputation of bony tuft, the award for this loss shall be one-half of the amount payable for the loss of the first phalanx or for 25 percent of the digit.

They further noted that the Memorandum also states:

If the injury has caused disability in addition to the amputation, such as impairment of flexion or extension, swelling, gross deformity and/or change in sensation, such additional disability must be taken into consideration in the overall award determination.

Because the Office medical advisor incorrectly disregarded the reported loss of motion, the award was incorrect, and the case was remanded for recalculation of the degree of impairment.

SCHEDULE AWARD FOR HEARING LOSS - REVISED AWARD VS NEW OR ADDITIONAL INJURY

Stacey L. Walker, Docket No. 95-873, Issued February 21, 1997

The Office made an award in this case for two percent binaural hearing loss, based upon the September 15, 1993 examination of an otolaryngologist who was Board-certified in plastic surgery, but not in otolaryngology.

The claimant requested reconsideration, and submitted an audiogram and report from a Board-certified otolaryngologist dated August 9, 1994. The Office denied modification of the previous decision, stating that the new report failed to include a rationalized opinion that the claimant had hearing loss greater than two percent.

The claimant again requested reconsideration, and stated that the audiogram could be verified. The Office again denied modification on the basis that the evidence submitted was already contained in the file and was not sufficient to warrant review.

The Board remanded the case for further development. They noted that where there are different audiograms from different specialists within a two-year period, all such audiograms should be evaluated to determine the percentage loss of hearing. They also noted that according to the Federal (FECA) Procedure Manual, Chapter 2-0808.7b(3), when a schedule award is made before the exposure terminates (as was the situation in this case), no additional awards are to be paid for periods of less than one year from the beginning date of the last award or the date of last exposure, whichever comes first. In hearing loss cases, a claim for an additional schedule award is based upon additional exposure, and constitutes a new claim, and should be treated as such. If a claimant asks for review of a hearing loss schedule award, he or she must be asked whether the request is for review of the award or for additional compensation due to additional exposure. If the request is based on additional exposure, a new claim should be filed no sooner than one year from the beginning date of the previous award, or the date of last exposure, whichever comes first.

In this case, the Office sent the claimant to a physician who was not Board-certified in the appropriate specialty. The office did not consider another audiogram which was submitted less than one year after the first one. In addition, the Office did not ask the claimant whether he was seeking reconsideration of the original award or an additional award. The Office's denial of modification based upon the lack of rationale was inappropriate, as the Office had already accepted the condition as work-related.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-02

October 24, 1997

SUBJECT: Revised Forms CA-1, CA-2, CA-5, CA-5b, CA-6, CA-7, and CA-20, CA-8, and CA-20a, CA-16, and CA-17

Attached please find copies of the above referenced forms which were recently revised.

Please discard all copies of the former versions of the forms. As all of these revisions have legal implications, use of the outdated forms is prohibited.

Agencies that produce these forms should discard their previous versions of these forms.

District Offices may obtain the forms from the Department of Labor warehouse through regional supply channels. Federal agencies may purchase the forms from the Superintendent of Documents, Government Printing Office (GPO), Washington, D.C. 20402. The current stock number and price may be obtained by calling the GPO on (202)783-3238. Agencies may also reproduce these forms provided they are exact duplicates of the forms, including color, typeface and spacing.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 1, Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-03

October 22, 1997

SUBJECT: Dual Benefits - FERS

Reference is made to FECA Bulletin 97-9, where the procedures for computing FERS Dual Benefits are outlined. In action item 3, the bulletin states that Bill Hilton is the individual at SSA who will perform the necessary computations for OWCP. A new individual at SSA is now performing this task. Effective immediately Taz Callanan (please note spelling) at FAX number (410) 966-1042 is performing the computations in FERS Dual Benefits cases. His phone number is (410) 965-9293.

Please change the name and number in Bulletin 97-9, in both places where Bill Hilton's name and number appear (Action Item 3, paragraphs 2 and 6).

Any FERS SSA Dual Benefits Forms which were sent to Bill Hilton will be computed by Taz Callanan and returned to you.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-04

October 22, 1997

SUBJECT: Code Changes for the Departments of Agriculture, Defense, Navy, Transportation, Treasury, and Veterans Affairs, and the General Services Administration, National Aeronautics and Space Administration, and Other Establishments, Case Management Users' Manual, Appendix 4-7

The Case Management User's Manual is being updated and revised to reflect multiple changes, including the addition of several new codes. For the Department of Agriculture, multiple agencies have been added, renamed, and removed from the Users' Manual as noted below. For the Department of Defense, the Defense Mapping Agency has been re-named the National Imagery and Mapping Agency (NIMA); facilities in that agency have been re-named accordingly, and 2 new codes have been added to reflect additional NIMA facilities. For the Department of the Navy, the Naval Investigative Service has been re-named the Naval Criminal Investigative Service. For the Department of Transportation, three new chargeback codes have been added to reflect injuries sustained by employees of the Transportation Administrative Service Center (code 2510), the Bureau of Transportation Statistics (code 2512), and the Surface Transportation Board (code 2514). For the Department of the Treasury, a major reorganization within the Internal Revenue Service (IRS) has reduced the number of IRS regions from 7 to 4; three regions have been removed from the User's Manual, two have been re-named, and state jurisdictions have all been changed. For the Department of Veterans Affairs, 6 new codes have been added to reflect injuries reported by employees of Consolidated Mail Order Pharmacies (CMOP), and codes have also been added for employees of Tahoma National Cemetery (code 4494), the VA Regional Office in Austin (code 4727), and the Payroll Service Center in Topeka, Kansas (code 4521). For the General Services Administration, 77 new codes have been added to reflect a change in coding structure from functional to regional. For the National Aeronautics and Space Administration, new codes have been added to reflect injuries reported by employees of the Stennis Space Center (code 1789, replacing an unused code) and the Office of Inspector General (code 1792). Finally, in the Other Establishments category, chargeback code 1488 has been added to reflect a separate code for employees of the U.S. Capitol Police, and chargeback code 1489 has been added to reflect a separate code for employees of the Utah Reclamation Migration and Conservation Commission.

Because the procedures for adding new chargeback codes to the Case Management File have changed, ADP Systems Managers no longer need to add the chargeback codes listed below; they have been added by National Office staff. Changes in the titles for employing agencies which already exist in the agency address field will have to be added to an individual agency address.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Chargeback Codes
Trans- action type	Code	Dept.	Agency

Add	8220	Agricltre	Office of Budget & Program Analysis
" "	8221	" "	Office of Congressional & Intergovernmental Rel
" "	8223	" "	Office of the Chief Economist
" "	8224	" "	National Appeals Division
" "	8414	" "	ARS, Beltsville Area
" "	8415	" "	ARS, Pacific/Northern Plains Areas
" "	8416	" "	ARS, MidWest/North Atlantic Areas
" "	8417	" "	ARS, Southern Plains Areas
" "	8418	" "	ARS, MidSouth Area
" "	8505	" "	FSA, State Offices
" "	8506	" "	FSA, Kansas City Field Office
" "	8507	" "	FSA, Aeriel Photography Field Office
" "	8511	" "	RMA, Deputy Admin for R & D
" "	8512	" "	RMA, Kansas City Compliance Field Office
" "	8513	" "	RMA, Regional Service Offices

Add	2510	DOT	Transportation Administrative Service Center
" "	2512	" "	Bureau of Transportation Statistics
" "	2514	" "	Surface Transportation Board

Add	3058	Defense	NIMA Arnold
" "	3070	" "	NIMA Navy Yard

Add	4035	VA	W Los Angeles Consol Mail Order Pharmacy (CMOP)
" "	4082	""	Hines CMOP
" "	4110	""	Leavenworth CMOP
" "	4139	""	Bedford CMOP
" "	4296	""	Murfreesboro CMOP
" "	4305	""	Dallas CMOP
" "	4494	""	Tahoma National Cemetery
" "	4521	""	VA HR/Payroll Service Center, Topeka, Kansas
" "	4727	""	VA Regional Office Austin

Add	1618	GSA	NATIONAL CAPITAL REGION, Admin and Staff Ofcs
" "	1619	" "	NATIONAL CAPITAL REGION, Public Buildings Svce
" "	1621	" "	NATIONAL CAPITAL REGION, Ofc of Property Mgmt
" "	1622	" "	NATIONAL CAPITAL REGION, Fed Supply Svce
" "	1626	" "	NATIONAL CAPITAL REGION, Ofc of Inspector Gnrl
" "	1627	" "	NATIONAL CAPITAL REGION, Fed Telecomm Svce
" "	1628	" "	NATIONAL CAPITAL REGION, Other
" "	1630	" "	ADMIN & STAFF OFFICES Northwest/Arctic Region
" "	1631	" "	ADMIN & STAFF OFFICES New England Region
" "	1632	" "	ADMIN & STAFF OFFICES Northeast & Carribean Rgn
" "	1633	" "	ADMIN & STAFF OFFICES Mid-Atlantic Region
" "	1634	" "	ADMIN & STAFF OFFICES Southeast Sunbelt Region
" "	1635	" "	ADMIN & STAFF OFFICES Great Lakes Region
" "	1636	" "	ADMIN & STAFF OFFICES Heartland Region
" "	1637	" "	ADMIN & STAFF OFFICES Greater Southwest Region
" "	1638	" "	ADMIN & STAFF OFFICES Rocky Mountain Region
" "	1639	" "	ADMIN & STAFF OFFICES Pacific Rim Region


Trans- action type	Code	Dept.	Agency

Add	1640	GSA	PUBLIC BUILDINGS SVCE Northwest/Arctic Region
" "	1641	" "	PUBLIC BUILDINGS SVCE New England Region
" "	1642	" "	PUBLIC BUILDINGS SVCE Northeast & Carribean Rgn
" "	1643	" "	PUBLIC BUILDINGS SVCE Mid-Atlantic Region
" "	1644	" "	PUBLIC BUILDINGS SVCE Southeast Sunbelt Region
" "	1645	" "	PUBLIC BUILDINGS SVCE Great Lakes Region
" "	1646	" "	PUBLIC BUILDINGS SVCE Heartland Region
" "	1647	" "	PUBLIC BUILDINGS SVCE Greater Southwest Region
" "	1648	" "	PUBLIC BUILDINGS SVCE Rocky Mountain Region
" "	1649	" "	PUBLIC BUILDINGS SVCE Pacific Rim Region
" "	1650	" "	OFC OF PROPERTY MGMT Northwest/Arctic Region
" "	1651	" "	OFC OF PROPERTY MGMT New England Region
" "	1652	" "	OFC OF PROPERTY MGMT Northeast & Carribean Rgn
" "	1653	" "	OFC OF PROPERTY MGMT Mid-Atlantic Region
" "	1654	" "	OFC OF PROPERTY MGMT Southeast Sunbelt Region
" "	1655	" "	OFC OF PROPERTY MGMT Great Lakes Region
" "	1656	" "	OFC OF PROPERTY MGMT Heartland Region
" "	1657	" "	OFC OF PROPERTY MGMT Greater Southwest Region
" "	1658	" "	OFC OF PROPERTY MGMT Rocky Mountain Region
" "	1659	" "	OFC OF PROPERTY MGMT Pacific Rim Region
" "	1660	" "	FEDERAL SUPPLY SVCE Northwest/Arctic Region
" "	1661	" "	FEDERAL SUPPLY SVCE New England Region
" "	1662	" "	FEDERAL SUPPLY SVCE Northeast & Carribean Rgn
" "	1663	" "	FEDERAL SUPPLY SVCE Mid-Atlantic Region
" "	1664	" "	FEDERAL SUPPLY SVCE Southeast Sunbelt Region
" "	1665	" "	FEDERAL SUPPLY SVCE Great Lakes Region
" "	1666	" "	FEDERAL SUPPLY SVCE Heartland Region
" "	1667	" "	FEDERAL SUPPLY SVCE Greater Southwest Region
" "	1668	" "	FEDERAL SUPPLY SVCE Rocky Mountain Region
" "	1669	" "	FEDERAL SUPPLY SVCE Pacific Rim Region
" "	1670	" "	OFC OF INSPECTOR GNRL Northwest/Arctic Region
" "	1671	" "	OFC OF INSPECTOR GNRL New England Region
" "	1672	" "	OFC OF INSPECTOR GNRL Northeast & Carribean Rgn
" "	1673	" "	OFC OF INSPECTOR GNRL Mid-Atlantic Region
" "	1674	" "	OFC OF INSPECTOR GNRL Southeast Sunbelt Region
" "	1675	" "	OFC OF INSPECTOR GNRL Great Lakes Region
" "	1676	" "	OFC OF INSPECTOR GNRL SVCE Heartland Region
" "	1677	" "	OFC OF INSPECTOR GNRL Greater Southwest Region
" "	1678	" "	OFC OF INSPECTOR GNRL Rocky Mountain Region
" "	1679	" "	OFC OF INSPECTOR GNRL Pacific Rim Region
" "	1680	" "	FED TELECOMMCTNS SVCE Northwest/Arctic Region
" "	1681	" "	FED TELECOMMCTNS SVCE New England Region
" "	1682	" "	FED TELECOMMCTNS SVCE Northeast & Carribean Rgn
" "	1683	" "	FED TELECOMMCTNS SVCE Mid-Atlantic Region
" "	1684	" "	FED TELECOMMCTNS SVCE Southeast Sunbelt Region
" "	1685	" "	FED TELECOMMCTNS SVCE Great Lakes Region
" "	1686	" "	FED TELECOMMCTNS SVCE Heartland Region
" "	1687	" "	FED TELECOMMCTNS SVCE Greater Southwest Region
" "	1688	" "	FED TELECOMMCTNS SVCE Rocky Mountain Region
" "	1689	" "	FED TELECOMMCTNS SVCE Pacific Rim Region


Trans- action type	Code	Dept.	Agency

Add	1690	GSA	NOT OTHRWISE CLASSIFD Northwest/Arctic Region
" "	1691	" "	NOT OTHRWISE CLASSIFD New England Region
" "	1692	" "	NOT OTHRWISE CLASSIFD Northeast & Carribean Rgn
" "	1693	" "	NOT OTHRWISE CLASSIFD Mid-Atlantic Region
" "	1694	" "	NOT OTHRWISE CLASSIFD Southeast Sunbelt Region
" "	1695	" "	NOT OTHRWISE CLASSIFD Great Lakes Region
" "	1696	" "	NOT OTHRWISE CLASSIFD Heartland Region
" "	1697	" "	NOT OTHRWISE CLASSIFD Greater Southwest Region
" "	1698	" "	NOT OTHRWISE CLASSIFD Rocky Mountain Region
" "	1699	" "	NOT OTHRWISE CLASSIFD Pacific Rim Region

Add	1792	NASA	Office of Inspector General

Add	1488	Other Est	U.S. Capitol Police
" "	1489	" "	Utah Reclamation Migration & Conservation Comm

Change	8201	Agricltre	from: Office of Finance and Management to: Office of the Chief Financial Officer

" "	8202	" "	from: Office of Personnel to: Office of Human Resources Management

" "	8204	" "	from: Office of Public Affairs to: Office of Communications

" "	8205	" "	from: Office of Advocacy and Enterprise to: Office of Civil Rights

" "	8208	" "	from: Office of Information Resrcs Management to: Office of the Chief Information Officer

" "	8216	" "	from: Office of Safety & Health Management to: National Finance Center

" "	8502	" "	from: Federal Crop Insurance Corporation to: Risk Management Agency (RMA)

" "	8603	" "	from: Rural Development Administration to: Rural Business-Cooperative Service

" "	8801	" "	from: Other Workers, Non-Federal employees to: Food & Nutrition Program employees


Trans- action type	Code	Dept.	Agency

Change	3042	Defense	from: Defense Mapping Agency headquarters to: Natl Imagery and Mapping Agency headqrtrs

" "	3043	" "	from: DMA Aerospace Center to: NIMA St. Louis

" "	3044	" "	from: DMA Hydrographic/Topographic Center to: NIMA Bethesda

" "	3045	" "	from: DMA Combat Support Center to: NIMA Philadelphia

" "	3046	" "	from: DMA Reston Center to: NIMA Reston

" "	3047	" "	from: DMA Systems Center to: NIMA Westfields

" "	3048	" "	from: Defense Mapping School to: NIMA Ft. Belvoir College

" "	3012	" "	from: Telecommunications Service Center to: NIMA North Annex

Change	617x	Navy	from: Naval Investigative Service to: Naval Criminal Investigative Service

Change	2151	Treasury	from: IRS Southeast Region (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee) to: IRS Southeast Region (Alabama, Arkansas, Delaware, Florida, Georgia, Indiana, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia)

" "	2155	" "	from: IRS Southwest Region (Arizona, Colorado, Kansas, New Mexico, Oklahoma, Texas, Utah, Wyoming) to: IRS Midstates Region (Arkansas, Illinois, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Texas, Wisconsin)

" "	2159	" "	from: IRS Western Region (Alaska, California, Hawaii, Idaho, Nevada, Oregon, Washington) to: IRS Western Region (Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, Wyoming)

Trans- action type	Code	Dept.	Agency

Change	2160	Treasury	from: IRS North Atlantic Region (Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Vermont) to: IRS Northeast Region (Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont)

Change	1789	NASA	from: NASA Pasadena Office to: Stennis Space Center, Bay St. Louis, Miss

Delete	8409	Agricltre	Cooperative State Research, Education & Extension Service
" "	8501	" "	Commodity Credit Corporation
" "	8103	" "	Ofc of Intl Cooperation and Development
" "	8608	" "	Agricultural Cooperative Service
" "	8218	" "	Office of Transportation

Delete	2153	Treasury	IRS Midwest Region
" "	2154	" "	IRS Central Region
" "	2158	" "	IRS Mid-Atlantic Region

Distribution: List No. 5 - Folioviews Groups C and D
(All Supervisors, Index and Files Personnel, Systems Managers and Technical Assistants)

Note: Immediate distribution to chargeback coding personnel is essential.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-05

November 5, 1997

SUBJECT: Dual Benefits - FERS COLA

Effective December 1, 1997, Social Security Benefits will increase by 2.1%. That requires the amount of the FERS Dual Benefits Deduction to be increased by the same amount.

This adjustment will be made from the National Office and will affect all cases that are correctly entered into the revised ACPS Program. The adjustment will be made effective with the periodic roll cycle beginning December 7, 1997. No adjustment will be made for the period December 1, 1997 through December 6, 1997.

If there are any cases currently being adjusted for FERS Dual Benefits that have not been entered correctly, please ensure that the correction is made by December 1, 1997.

The National Office will provide a notice to each record effected with a copy for the case file.

SSA COLA's are as follows:

SSA COLA's
Dates	Rates
Effective December 1, 1997	2.1%
Effective December 1, 1996	2.9%
Effective December 1, 1995	2.6%
Effective December 1, 1994	2.8%

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-06

November 13, 1997

SUBJECT: Selected ECAB Decisions for October - December, 1996

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.

Summaries on a variety of topics are included.

No summaries are being published for January through March, 1996.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

COMPENSATION FOR SECOND OPINION EXAMINATIONS CONDUCTED ON NON-WORK DAY

Antonio Mestres, Docket No. 94-2247, Issued October 21, 1996

In this case, the claimant had returned to work six hours per day and was receiving compensation for the remaining two hours per day. The Office referred him for evaluation by a second opinion orthopedic specialist. The orthopedist examined the claimant on two different dates, both of which were not scheduled work days. The claimant submitted a claim for eleven hours of compensation for the time spent being evaluated. The Office denied the claim for eleven hours.

The Board affirmed the Office's decision. The Board stated that Section 8103 provides for payment of loss of wages incurred while obtaining medical services. In the case at hand, however, the claimant sustained no loss of wages because he was not scheduled to work on the days he was examined.

The claimant attempted to argue that his union contract with the employer stated that he could not be required by the employer to attend any medical evaluation scheduled during non-work hours. The medical examination in this instance was not scheduled by the employer, but rather by the Office, and the union agreement was neither applicable nor binding.

FACT OF INJURY - NEUTRAL RISK

Doyle W. Ricketts, Docket No. 95-435, Issued November 6, 1996

In this decision, the Board found that exposure to a "neutral risk" is compensable.

The claimant, a rural mail carrier, claimed that on June 23, 1993, he sustained a traumatic injury to his left foot. On the morning of June 23, he felt a stinging sensation in his left heel. He no longer felt it after he moved his foot around in his shoe. Later that evening, he noticed soreness and a lump in the instep/heel area of his left foot. Although he had not seen a spider at the time, he believed that he had been bitten by a spider, based on what he had read about spider bites, and the fact that he had seen spiders in the mailboxes that he served. The claimant's description of the incident was consistent through several accounts to OWCP and two physicians.

He tried home remedies without success. He first sought medical treatment on August 23. The treating physician submitted a medical report which supported symptoms and a diagnosis consistent with a spider bite 2 months prior.

The Office denied the claim on the grounds that the claimant did not establish fact of injury. In response to one request for reconsideration, modification was denied. In response to another, the Office denied review. The Board found that the claimant met his burden of proof to establish that he sustained an injury in the performance of duty, stating "That the precise mechanism of the injury or the exact identity of the offending creature proved elusive is not fatal to appellant's claim." The Board provides the following discussion of Larson.

Larson has identified three types of risks: 1) risks distinctly associated with the employment - these are universally compensable; 2) risks personal to the claimant - these are universally noncompensable; and 3) "neutral" risks, i.e. risks having no particular employment or personal character.

Harms from this third risk are the subject of controversy in modern compensation law, but there is increased acceptance for finding an injury arose in the performance of duty when a condition of employment put the claimant in a position to be injured by the neutral risk. The Board has applied the positional risk doctrine, and has held that an injury arising in the course of employment from a neutral risk is compensable ... In the present case, the harm experienced by appellant appeared to have been distinctly associated with his employment in that he noticed a stinging sensation in the area of the claimed injury while at work, experienced apparent after effects shortly thereafter and was later diagnosed as having a spider bite.

FACT OF INJURY - PAIN REPORTED BY PHYSICIAN AS A DIAGNOSIS

Mable A. Stewart, Docket No. 95-22, Issued November 19, 1996

The principle enunciated in this case was that a physician's finding of pain can be sufficient to constitute medical evidence in support of "fact of injury".

The claimant reported an injury of September 29, 1992, when she caught her foot under a chair and fell, striking her head against a wall, and her arm and buttocks on the floor. A witness confirmed the fall. It was accepted that the incident occurred as alleged.

Since fact of injury consists of two components, the next question was whether the claimant sustained an injury as a result of the accepted incident. The district office had denied the claim on the basis that fact of injury was not established. Medical evidence submitted included diagnoses of "musculoskeletal neck and arm pain", and "mild post-concussive syndrome". The Board found that the second diagnosis clearly constituted an injury-related diagnosis, establishing fact of injury.

The Board also noted that although the Procedure Manual at PM-2-803.3(d) states that "findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury determination," where "musculoskeletal pain" is presented by a physician as a final and definite diagnosis resulting from a clear traumatic incident, rather then merely mentioned as an employee complaint or as findings upon examination, such a diagnosis is sufficient to establish an injury.

The Office's decision was reversed.

PERFORMANCE OF DUTY - SHIFT CHANGES FOR DISCIPLINARY REASONS

Gabriel Imondi, Docket No. 95-238, Issued November 5, 1996

The point in this decision worth noting is that the Board found that while a change in work-shift is generally considered a factor of employment, if the shift change is for disciplinary reasons, it is considered an administrative action covered by McEuen.

The claimant filed a claim for an emotional condition which he attributed to his employment as a medical clerk. He claimed, among other things, that changing his shift from the night shift to working days and weekends without adequate time to adjust his schedule interfered with his sleep patterns. The lack of sleep, he claimed, was stressful and caused him to be irritable.

A board-certified psychiatrist submitted reports stating that the change in the claimant's shift from the night shift to the day shift caused his emotional condition, resulting in depression, confusion and inability to concentrate.

The agency stated that the claimant was changed to the day shift to remove him from conflicts and personal relationships with coworkers on the night shift; to allow for closer supervision, restore productivity, maintain discipline and restore morale.

The Board found that the change in shift was an administrative action taken by the agency to reduce conflict between the claimant and coworkers, and was in essence a disciplinary action. The administrative action in changing the claimant's shift, in the context of enforcing discipline and restoring order to the agency, is covered by McEuen and would be considered outside of the performance of duty unless it were established that the action was abusive or in error.

While the claimant did cite some potentially covered factors of employment, he did not provide medical evidence attributing a medical condition to any of the claimed factors considered to be in the performance of duty. The Board, therefore affirmed the Office's decision.

RECONSIDERATIONS - MERIT REVIEW

Andrew Guzman, Docket No. 94-2611, Issued November 15, 1996

In this case, the Board reminds us that where the claimant does not receive a decision on a request for reconsideration within 90 days of receipt of the request, the Office must perform a merit review of the file.

By decision of April 30, 1992, the Office denied the claim for hearing loss as non-ratable. By decision of March 24, 1993, a Hearing Representative affirmed the decision.

On April 19, 1993, the claimant's representative requested reconsideration arguing that the audiogram utilized by the Office was of questionable accuracy. By decision of March 21, 1994, the Office found that, as the claimant neither raised substantial legal questions nor included new and relevant evidence, the request was insufficient to warrant review of the prior decision.

The Board, referencing PM-2-1602.7, found that because the Office did not issue a decision on the request for review until eleven months after the decision, the claimant was precluded from seeking a further merit review by the Office or a Board review. The case was remanded for a de novo decision on the merits of the claim.

SUSPENSION OF BENEFITS UNDER SECTION 8123(d)

Gloria D. Livingston, Docket No. 94-2573, Issued October 22, 1996

The claimant sustained an injury in 1986 which was accepted for acute lumbosacral sprain and aggravation of upper back and shoulder girdle fibrosis. A physician who was Board-certified in preventative medicine examined the claimant and found that her subjective complaints of paid vastly outweighed the objective findings, and recommended referral for a behavioral pain management program and a functional capacity assessment. On July 16, 1993, the Office exercised its discretion under Section 8123(a) and referred the claimant for functional capacity evaluation. The claimant was advised that refusal or obstruction of the examination would result in suspension of her compensation under Section 8123(d). The claimant reported for the examination, but did not cooperate. The testing was to have lasted for three hours, but the claimant repeatedly refused to participate in testing, and stopped prior to maximum effort. The rehabilitation physical therapist noted that the claimant was observed with a greater range of motion than she would allow during testing, and stated that her overall behavior was inconsistent.

The claimant was advised again of the provision of Section 8123(d), and was asked to provide an explanation as to why she obstructed the evaluation as well as medical evidence to support her inability to undergo the testing. The claimant responded that she had been informed that the testing would last three hours, and that after three hours and forty-five minutes she left the testing due to pain. She did not submit any further medical evidence.

The Office suspended her compensation for refusal to cooperate with a medical evaluation, in accordance with Section 8123(d).

The Board affirmed the Office's decision, finding that the claimant did not offer sufficient reasons for her refusal to cooperate with the functional capacity evaluation, and did not provide any medical evidence to support an inability to participate in the evaluation. They stated that the claimant's contention that she did not refuse to cooperate with testing was refuted by the report of the rehabilitation physical therapist.

It is important to make a distinction between a functional capacity evaluation (FCE) which is a medical service recommended by a physician, and an FCE which is part of an Occupational Rehabilitation Program (ORP). In this decision, the FCE was part of a medical evaluation, and the Office properly applied the sanctions found in Section 8123(d). If in the more usual circumstance the FCE is part of an ORP, the penalty for failure to cooperate would be the appropriate rehabilitation sanctions, rather than suspension under Section 8123(d).

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-07

January 7, 1998

SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection

The interest rate to be assessed for the prompt payment bills is 6 1/4 percent for the period January 1, 1998 through June 30, 1998.

Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.

The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through December 31, 1998.

Attached to this Circular is an updated listing of the DMS interest rates from January 1, 1984 through current date.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Attachments

Distribution: List No. 2--Folioviews Groups A, B, and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)

PROMPT PAYMENT INTEREST RATES
Dates	Rates
1/1/98 - 6/30/98	6 1/4%
7/1/97 - 12/31/97	6 3/4%
1/1/97 - 6/30/97	6 3/8%
7/1/96 - 12/31/96	7.0%
1/1/96 - 6/30/96	5 7/8%
7/1/95 - 12/31/95	6 3/8%
1/1/95 - 6/30/95	8 1/8%
7/1/94 - 12/31/94	7.0%
1/1/94 - 6/30/94	5 1/2%
7/1/93 - 12/31/93	5 5/8%
1/1/93 - 6/30/93	6 1/2%
7/1/92 - 12/31/92	7.0%
1/1/92 - 6/30/92	6 7/8%
7/1/91 - 12/31/91	8 1/2%
1/1/91 - 6/30/91	8 3/8%
7/1/90 - 12/31/90	9.0%
1/1/90 - 6/30/90	8 1/2%
7/1/89 - 12/31/89	9 1/8%
1/1/89 - 6/30/89	9 3/4%
7/1/88 - 12/31/88	9 1/4%
1/1/88 - 6/30/88	9 3/8%
7/1/87 - 12/31/87	8 7/8%
1/1/87 - 6/30/87	7 5/8%
7/1/86 - 12/31/86	8 1/2%
1/1/86 - 6/30/86	9 3/4%
7/1/85 - 12/31/85	10 3/8%
1/1/85 - 6/30/85	12 1/8%

ATTACHMENT TO FECA CIRCULAR NO. 98-07

DMS INTEREST RATES
Dates	Rates
1/1/98 - 12/31/98	5%
1/1/97 - 12/31/97	5%
1/1/96 - 12/31/96	5%
7/1/95 - 12/31/95	5%
1/1/95 - 06/30/95	3%
1/1/94 - 12/31/94	3%
1/1/93 - 12/31/93	4%
1/1/92 - 12/31/92	6%
1/1/91 - 12/31/91	8%
1/1/90 - 12/31/90	9%
1/1/89 - 12/31/89	7%
1/1/88 - 12/31/88	6%
1/1/87 - 12/31/87	7%
1/1/86 - 12/31/86	8%
1/1/85 - 12/31/85	9%
Prior to 1/1/84	not applicable

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-08

January 21, 1998

SUBJECT: Revised Forms - CA-16 and CA-17

Reference is made to FECA Circular 98-2, which advised of several forms revisions, and had copies of the revised forms attached.

Revised Form CA-17 was inadvertently omitted from the Circular, and is attached hereto.

Also, the CA-16 attached to Circular 98-2 was not the current version. The revised CA-16 is attached to this circular. Please discard the CA-16 attached to Circular 98-2.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-09

July 1, 1998

SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection

The interest rate to be assessed for the prompt payment bills is 6.0 percent for the period July 1, 1998 through December 31, 1998.

Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.

The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through December 31, 1998.

Attached to this Circular is an updated listing of the DMS interest rates from January 1, 1984 through current date.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Attachments

PROMPT PAYMENT INTEREST RATES
Dates	Rates
7/1/98 - 12/31/98	6.0%
1/1/98 - 6/30/98	6 1/4%
7/1/97 - 12/31/97	6 3/4%
1/1/97 - 6/30/97	6 3/8%
7/1/96 - 12/31/96	7.0%
1/1/96 - 6/30/96	5 7/8%
7/1/95 - 12/31/95	6 3/8%
1/1/95 - 6/30/95	8 1/8%
7/1/94 - 12/31/94	7.0%
1/1/94 - 6/30/94	5 1/2%
7/1/93 - 12/31/93	5 5/8%
1/1/93 - 6/30/93	6 1/2%
7/1/92 - 12/31/92	7.0%
1/1/92 - 6/30/92	6 7/8%
7/1/91 - 12/31/91	8 1/2%
1/1/91 - 6/30/91	8 3/8%
7/1/90 - 12/31/90	9.0%
1/1/90 - 6/30/90	8 1/2%
7/1/89 - 12/31/89	9 1/8%
1/1/89 - 6/30/89	9 3/4%
7/1/88 - 12/31/88	9 1/4%
1/1/88 - 6/30/88	9 3/8%
7/1/87 - 12/31/87	8 7/8%
1/1/87 - 6/30/87	7 5/8%
7/1/86 - 12/31/86	8 1/2%
1/1/86 - 6/30/86	9 3/4%
7/1/85 - 12/31/85	10 3/8%
1/1/85 - 6/30/85	12 1/8%
ATTACHMENT TO FECA CIRCULAR NO. 98-09

DMS INTEREST RATES
Dates	Rates
1/1/98 - 12/31/98	5%
1/1/97 - 12/31/97	5%
1/1/96 - 12/31/96	5%
7/1/95 - 12/31/95	5%
1/1/95 - 06/30/95	3%
1/1/94 - 12/31/94	3%
1/1/93 - 12/31/93	4%
1/1/92 - 12/31/92	6%
1/1/91 - 12/31/91	8%
1/1/90 - 12/31/90	9%
1/1/89 - 12/31/89	7%
1/1/88 - 12/31/88	6%
1/1/87 - 12/31/87	7%
1/1/86 - 12/31/86	8%
1/1/85 - 12/31/85	9%
Prior to 1/1/84	not applicable
ATTACHMENT TO FECA CIRCULAR NO. 98-09

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-10

July 30, 1998

SUBJECT: Pay Rates: Inclusion of Extra Pay Authorized Under the FLSA

Recently, some questions have arisen regarding the inclusion of extra pay authorized under the FLSA.

The Federal (FECA) Procedure Manual outlines the pay elements that are included in the pay rate for compensation purposes in Chapter 2-900, Paragraph 7. Item 21 of that paragraph includes extra pay authorized under the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(k), for firefighters, emergency medical technicians, and other employees who earn and use leave on the basis of their entire tour of duty, and who are required to work more than 106 hours per pay period in the elements included in the pay rate for compensation purposes.

The elements included in the compensation pay rate are no different for Leave Buy Back than for computing compensation for Leave Without Pay.

When questions arise regarding the pay elements to either include or exclude from the pay rate for compensation purposes, PM 2-900 is the appropriate reference.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 2 - Folioviews Groups A, B, and D (Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)

Back to Table of Contents

Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-11

September 25, 1998

SUBJECT: Bill Payment/BPS - Procedure Code Modifiers

Recently, the use of procedure modifiers has been emphasized in the keying and resolution of medical bills. This Circular provides information regarding the nature and types of modifiers considered valid in the FECS system. Additionally, the steps to be taken when resolving bills suspended because of invalid modifiers are described.

A. What are modifiers?

In medical bill processing, modifiers are extra characters attached to procedure codes. These extra characters indicate that the service performed has been changed in some way, but not sufficiently to warrant the use of another procedure code.

There are many modifiers. The AMA Physicians' Current Procedural Terminology (CPT), the Health Care Financing Administration (HCFA) HCPCS coding scheme, and several states' programs have their own unique modifiers:

1. CPT modifiers are always numeric. While they can be either two (2) or five (5) digits long, the shorter form is almost universally used. At present, the CPT contains 30 valid modifiers and a list with definitions is found in Appendix A of the 1998 edition. All these modifiers are considered as valid by the DFEC Medical Bill Processing System (MBPS).

2. HCPCS modifiers are two alpha characters appended at the end of the code. Only some of the HCPCS codes are recognized as valid by the DFEC MPBS. These are:

The definition of these codes is found in the OWCP Medical Fee Schedule Modifier Level Tables - Table A.

3. Modifiers developed by individual state programs may be composed of alpha and/or numeric characters and may vary in length. Sometimes they are difficult to distinguish from the HCPCS modifiers. One non-standard modifier that is considered valid by the DFEC system is -A for anesthesia services.

B. What are modifiers used for?

1. Modifiers indicate the character of the service performed. For example, when the CPT modifier -26 is present, it means that only the professional component of the service is being billed. Modifier - AA after a surgical code means that the service performed was the anesthesia for the procedure. Modifier -80 indicates an assistant surgeon's service.

2. Modifiers are used to express a change in the level or intensity of the service. An example of this type is modifier - 51, which indicates that the procedure is one of a number of procedures performed at the same time.

3. Modifiers also indicate who performed the service. The HCPCS modifiers used by OWCP, with the exception of TC and SG, indicate that a particular non-physician provider performed the services.

4. Not all modifiers are valid for all codes. For each procedure code for which modifiers are applicable, there is a 'modifier level". The "modifier level" refers to a list or table of modifiers that are valid for the procedure code (see D below).

C. Why are modifiers important?

Modifiers define the maximum allowable amount for the service and the correct payment for the service. For example, when modifier -81 is present, the allowable amount is only 20% of the full fee for the surgical procedure. Conversely, when modifier -22 is present, the allowable amount is 150` of the full fee.

Modifiers also define the procedure as a separate, distinct service and not a duplicate of another procedure. If a radiologist bills procedure code 71010-26 and the outpatient department of a hospital bills 71010-TC, and both are input without modifiers, the MBPS will see them as duplicates (if the EIN number of the providers is the same). Only the modifiers will identify these as separate procedures.

Therefore, modifiers are important in determining the level of payment for a service and whether the service is a duplicate or a distinct service. The appropriate use of modifiers prevents unnecessary bill suspensions and incorrect payments.

D. How to use the OWCP Medical Fee Schedule Modifier Level Tables.

1. Identify the procedure code in the OWCP Fee Schedule, then determine the Modifier Level accompanying the code. For example, procedure code 29875 has a Modifier Level of 22.

2. In the OWCP Medical Fee Schedule Modifier Level Tables, identify Table 22. Surgery, Full Service; Assistant/Two Surgeons, Bilaterality, Multiple Procedures Pro-Rated. The modifiers present in that table are the only modifiers considered valid for procedure code 29875. The level of payment is indicated after each modifier. For example, 29875-51 will be paid at 50% of the full procedure.

3. Modifiers -26 and -TC are primarily used for radiology services, clinical laboratory tests, and other clinical tests such as nerve conduction studies and EKGs. They are treated somewhat differently than other modifiers. In addition to appearing in some of the modifier level tables in the appendices, these modifiers can also be present in the fee schedule under the heading of "Modifier". For example, procedure code 72158 appears three times in the list: without modifiers (full service) but with reference to Modifier Level Table 50, with modifier -26 (professional service), and with modifier -TC (technical service). For keying purposes, the modifiers must be keyed whenever they are present on a bill.

4. Please note that a procedure may have more than one modifier. In that case, modifier -99 should be used.

E. How to resolve bills containing invalid modifiers.

When a procedure code is keyed with an invalid modifier, the bill input program will respond with an error message, "INVALID PROCEDURE CODE, MODIFIER CODE COMBINATION. CONTINUE? [Y/N]" The keyer should check the keyed procedure code and modifier on the screen against those present on the bill. If keyed accurately, he or she should answer "YES" to the question and proceed with keying. If a keying error was made, the error should be corrected.

If an invalid modifier is present, Error Code 318 will be assigned when the bill edits are run. To resolve the error, follow these steps:

1. Check that the modifier was keyed accurately. If there was a typographical error, correct it and recycle the bill.

2. If the modifier was keyed accurately, determine whether the modifier is a valid CPT modifier or one of the HCPCS modifiers applicable to DFEC bills. If the modifier is not in the CPT book, OWCP Fee Schedule Modifier Level Table A, or section A above, the line should be denied with EOB 318.

3. If the modifier is a valid one, determine whether it is applicable to the procedure code. To do so, find the Modifier Level in the OWCP Fee Schedule book for the procedure code. If the modifier used by the provider is not present in the appropriate table, the line should be denied with EOB 318.

THOMAS M. MARKEY
Director, Division of Federal
Employees' Compensation

Distribution: List No. 2 - Folioviews Groups A and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisers, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 98-12

September 30, 1998

SUBJECT: Selected ECAB Decisions for October - December, 1997

The attached is a group of summaries of selected ECAB decisions for the above quarter. The decision summaries are provided to point out novel issues not frequently addressed by the Board, or commonly occurring errors by the Office which need to be emphasized.

Included in this FECA Circular are summaries on idiopathic versus unexplained falls, rescissions of acceptance decisions, a decision on the compensability of suicide, and termination for refusal of suitable work. Should you find, upon reviewing a decision summary, that it affords guidance in a topic that you are addressing, do not fail to avail yourself of the ECAB decision in its entirety for your thorough review.

The ECAB decision summary for the fourth (July through September) quarter of 1997 will be issued shortly.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 1 - Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Systems Managers, Technical Assistants,Rehabilitation Specialists, and Staff Nurses)

IDIOPATHIC VERSUS UNEXPLAINED FALL

Jeffrey P. Werstler, Docket No. 96-314, October 28, 1997
Gary Pelzer, Docket 96-202, Issued November 21, 1997

In the Werstler case, the Board's decision emphasizes the extent of the Office's burden to support a finding that the employee's injury was caused by an idiopathic fall.

The claimant was a 36 year-old window/distribution clerk who suddenly blacked out and fell to the ground, suffering a fractured skull as he was working at the cashier's window. The employer controverted the claim, contending that the incident should be considered an idiopathic fall and as such was not in the performance of duty. There was a witness statement from a coworker describing the claimant as unresponsive while laying on his back on the floor, and indicating that a customer had told the emergency personnel that it appeared to have been a seizure.

The Office obtained another witness statement via a phone conference some six weeks after the occurrence from a coworker claiming to have witnessed the entire incident. The memorandum of conference was sent to the claimant along with a letter requesting medical evidence relative to the employment incident. After some time a medical report was received which confirmed that the claimant did indeed have a history of seizures, but failed to provide anything specific with regard to the incident at work in which the claimant apparently had a syncopal episode. An office medical advisor offered the opinion that the incident was most likely caused by the claimant's seizure disorder. The Office subsequently denied the claim for benefits finding that the claimant's injuries were the result of an idiopathic fall and as such were not covered under the FECA.

The Board found that the Office had not met its burden to establish that the injury was caused by an idiopathic fall and reversed the Office's decision. It held that the fact that the claimant had a history of seizure disorder which raised the likelihood that this injury was caused by an idiopathic condition was not sufficient to establish that this fall was caused by the seizure disorder which was idiopathic to the claimant. Moreover, the Board held that the evidence was insufficient to support that this particular employment incident was caused by an idiopathic condition. The Werstler decision illustrates that just the same as in intoxication and willful misconduct cases, the Office has the burden to prove affirmatively that the idiopathic condition was the proximate cause of the injury.

In the Pelzer decision, the Board affirmed the Office's finding that the evidence of record failed to support that the injury occurred in the performance of duty.

The claimant filed a notice of injury indicating that while standing at the time clock his knees buckled, he fell backward, and he injured his back and right knee. A medical report dated four days after the occurrence indicated that the claimant suffered from a "strange generalized myopathy" which prevented him from standing or walking "for any length of time without his limbs giving way." Upon requesting additional evidence from the claimant's treating physician and any information referring to previous similar symptoms or illnesses, the Office received a report from a board-certified internist who was also a psychiatrist and neurologist. The specialist's report revealed that the claimant was a patient being followed in his clinic for polymyositis which caused severe proximal weakness making it unsafe for him to use public transportation. Thereafter the first physician's report indicated that the claimant's strange myositis involved weakness which made it risky for him to travel alone. Both physicians indicated that they had advised the claimant to stay off work until his condition improved. Even though the claimant's factual statement responded that he had never experienced any similar disability or symptoms before, the Board affirmed the Office's decision. The Board clearly gave the deciding weight to the medical evidence, stating:

The reports identify appellant's nonoccupational, preexisting condition and therefore, tend to support that a personal nonoccupational pathology caused appellant to fall on July 8. . . None of the reports causally relate appellant's condition to any employment factors. Moreover, the factual evidence indicates he was standing by the time clocks on the second floor, his knees buckled and he fell backward and directly to the floor. There is no evidence indicating this fall was caused by intervention of or contribution by any employment-related factors, i.e., he did not strike any object, other than the floor, during the course of his fall at work on July, 1995.

In distinguishing this decision (Pelzer) from Werstler, above, the claimant did not lose consciousness, he described what caused his fall, and the medical evidence was unequivocal in confirming that the claimant's underlying, preexisting condition would cause his limbs to give way. Moreover, the claimant's work injury was fully explained by his idiopathic condition of myositis.

RESCISSION OF ACCEPTANCE - REVERSALS

Wiley Richey, Docket No. 94-2367, Issued November 7, 1997
William H. Nolan, Docket No. 95-1358, Issued October 17, 197

The Richey case was that of a claimant who alleged a myocardial infarction precipitated by physical exertion while at work in April of 1980. The Office originally denied the case in 1981 based on the opinion of an Office medical advisor that the claimant had not sustained a myocardial infarction and that his disability was the result of his nonemployment related atherosclerotic cardiovascular disease. The Board later directed the Office to resolve the conflict between the claimant's attending internist and the Office medical advisor by using a referee specialist. The case was subsequently approved and the claimant placed on the periodic roll as of May 1, 1984.

After many years had passed, the attending internist continued to support ongoing total disability as caused by the myocardial infarction of 1980. Instead of obtaining evidence to determine the extent and degree of continuing work related disability, if any, the Office again asked a second-opinion specialist questions regarding whether the claimant had in fact sustained a myocardial infarction in 1980. The second-opinion specialist, in reports of June 1993, found that the claimant did not sustain a myocardial infarction in 1980, and that the claimant's disability was related to his nonemployment related coronary artery disease. Another cardiologist was asked to act as referee specialist to resolve the conflict between the claimant's physician and the second-opinion specialist. The impartial specialist found that the claimant had not suffered a myocardial infarction in 1980 and that his current disability was caused by his preexisting atherosclerotic cardiovascular disease. She stated that her opinion was based on review of the medical records from 1980 and the notes from her examination of the claimant. The Office terminated benefits effective May 1, 1994.

The Board found that the Office's decision was improper on two grounds, 1) it constituted a termination without sufficient medical evidence to meet the Office's burden, and 2) it constituted a rescission of an acceptance without meeting the criteria for rescinding an acceptance. With regard to the termination, the Board found that the Office had improperly sought a referee examination to resolve a conflict it had addressed ten years before with a referee examination. The Board also pointed out that there could not possibly be a conflict between the previous referee specialist and the current second-opinion physician in the sense described in the FECA, as neither of these physicians was a physician for the appellant (both were engaged by the Office). Therefore, the Board stated that the physician that had been contracted was not acting as an impartial specialist on the question of whether the claimant suffered a myocardial infarction, and her report was not entitled to special weight. As such the referee specialist's reports were insufficient to meet the Office's burden to terminate benefits. In addition the Office's decision constituted a rescission of an acceptance without sufficient justification. The Board pointed out that in order to rescind the acceptance of a claim, the Office must show that its decision was based on new evidence, legal argument, or rationale. In this case the referee acknowledged that she had used the April30, 1980 report of the attending physician to arrive at her conclusion that the claimant did not suffer a myocardial infarction, and that his present medical condition was not related to his federal employment. In essence, no new evidence was available, and no new legal argument or rationale had been provided to justify rescission of the acceptance. The Board pointed out that the referee examiner had stated that she relied on medical evidence which was in the record when the Office initially resolved this question, and noted that the referee specialist had merely arrived at a different conclusion looking at the same evidence. The Board, therefore, reversed the Office decision in Richey.

In Nolan, the case had been accepted in 1989 for the condition of cold injury to the left foot (frostbite). In March of 1990 two second-opinion physicians reported that they found no organic disease, and the Office medical advisor reported that there was no evidence that the claimant had ever had a frostbite, speculating that his neurologic findings were suggestive of a neuropathy, nerve entrapment, or even lumbosacral disease. The Office declared a conflict in medical opinion necessitating a referral to a board-certified impartial specialist in Neurology in June 1990. The Neurologist found little evidence of a "significant" frostbite injury but stated that "he may have had a mild degree of cold injury," and recommended an electromyogram with nerve conduction studies. An associate neurologist who performed the diagnostic studies indicated that his findings were consistent with mild lateral tarsal tunnel syndrome, but in regard to the frostbite offered that there was "no apparent residual damage from the episode of frostbite" occurring back in January of 1989. The Office subsequently rescinded the acceptance of the case.

The Board reversed the Office's decision holding that it had improperly rescinded the acceptance of the claim.

To justify rescinding its acceptance of a claim, the Office must show that it based its rescission on new evidence, legal argument or rationale.

In this instance, the Office based its decision on new evidence. However, the new evidence failed to justify the Office action. Neither the physician whom the Office engaged to resolve the conflict in medical opinion, nor his associate made any statement in their reports which indicated that the original decision to accept the case was in error. They both acknowledged that the claimant may have had a mild frostbite initially, but stated that there was currently no evidence of residual damage from this previous injury. The Board pointed out that even though these reports would have constituted the weight of the medical opinion evidence, it did not support or justify the action of rescinding the claim. As such, the Office failed to meet its burden of proof to rescind the acceptance of the claim.

SUICIDE: CHAIN-OF-CAUSATION TEST

Sharon Yonak, widow of Nicholas Yonak, Docket no. 96-471, Issued December 23, 1997

In this case, the Board found that the evidence of record was insufficient to establish the suicide was causally related to the decedent's federal employment, or to his employment injury sustained some eight years earlier. The Board discussed the type of evidence needed in order to establish a suicide as work-related.

In support of her claim that her husband's suicide was caused by his employment injury or its residuals, the widow submitted a letter from her attorney, reports from the decedent's treating physical medicine and rehabilitation specialist, statements from two of the decedent's coworkers (written 3 years after the suicide), and a suicide note. Earlier, the coroner's report had stated that the employee had been depressed over the past two weeks because of problems at work and severe back pain. The police report indicated that the decedent had told his wife that he felt goofy and wanted to go to the hospital, and that he had previously considered suicide but could not do it. All of the documentation submitted was supportive of the idea that the decedent had been unhappy with his work situation, stating that he was forced to work outside of his prescribed work limitations, and that this caused him to experience increased pain. Also, it was learned from the suicide note that the employee had suggested to his widow that she file a suit against the Postal Service for the way they treated people and kept "fooling" with his job. In the note he claimed that his back hurt him whenever he overdid anything and that the Post Office did not care.

On the other hand, there was a statement from the decedent's supervisor written the same month as his death. This statement indicated that the supervisor had been aware of the decedent's complaints of back pain after standing too long, that he remembered that the decedent's work prior to his injury had been excellent and highly productive, that he had advised the employee that he could do a sit-down job of repairing damaged mail for as long as he needed the rest from standing, and that the decedent essentially had "carte blanche" to rest or sit down for "periods up to his discretion" whenever the floor work became too much for him.

On affirming the Office's decision, the Board noted that Section8102(a) of the FECA provides that death resulting from an injury while in the performance of duty shall be afforded coverage, unless the death or injury is caused by the employee's intention to bring about harm to himself. Even though the statute seems to automatically preclude compensation for suicide, the Board pointed out that the Office has adopted the chain-of-causation test for determining whether an employee's suicide is compensable under the Act. The chain-of-causation test makes a suicide compensable when a work injury produces mental derangement and the mental derangement produces the suicide. According to Larson's Workmen's Compensation Law, the suicide must be traced directly to the work injury. If there is no work-related injury that eventually leads to the suicide, or if the death can be attributed to nonemployment influences, the suicide is not compensable. The FECA Procedure Manual's guidelines for the development of evidence in suicide claims state that for a suicide to be compensable, the chain of causation from the work injury to the suicide must be unbroken. Thus, if the evidence suggests the existence of other factors in the employee's life such as personal problems (e.g., addiction or substance abuse), family problems (e.g., marital or financial difficulties), or non work-related injuries, the Office must develop such factors to determine what effect, if any, they had in causing the suicide, and whether they constitute independent intervening factors sufficient to break the direct chain of causation from the injury to the suicide. According to Larson:

If the sole motivation controlling the will of the employee when he knowingly decides to kill himself is the pain and despair caused by the injury and if the will itself is deranged and disordered by the consequences of the injury, then the employee's exercise of will in taking his life seems to be in the direct line of causation.

In the instant case the Board held that the claimant-widow failed to establish that the employment injury, in a natural and continuous sequence, unbroken by any new or independent causes, produced the employee's death and that without the injury, the death would not have occurred. The Board stated that in fact it was the claimant's burden to prove that her husband's death by suicide was causally related to factors of his federal employment. In addressing the evidence, the Board pointed out that the decedent's specialist's opinion was provided some three years after the suicide and was speculative. The opinion stated that the decedent's increased work activity in excess of his physical restrictions would certainly have increased his pain and could certainly lead to psychological stress and depression resulting in suicide. However, this specialist had last seen the employee some four months prior to the suicide, at which time he approved the limited duty job the claimant was to start working, and found the physical examination to be normal. Furthermore, during the period that the decedent allegedly suffered the increased pain due to overdoing it at work, he never sought medical treatment for his symptoms, nor is there any evidence that the employee was ever treated for stress or depression. The Board also noted that the statements provided by the decedent's coworkers were some 3 years after the incident and described severe pain in the base of the decedent's neck, with no explanation of how this could be related to the accepted lumbar disc condition.

The Board held that the decedent's supervisor's statement describing the conditions of the work situation and the suicide note itself were far more contemporaneous and, therefore, more probative than the affidavits of coworkers or a medical opinion provided three years after his death. In affirming the Office's decision, the Board found that, overall, the evidence of record did not substantiate that the employee killed himself because of his work-related condition.

REFUSAL OF SUITABLE WORK - PENALTY PROVISION FECA 8106(c)

Gerald R. Willman, Docket No. 95-2810, Issued October 9, 1997

This case is an example of what the Office must do to meet its burden to terminate benefits for refusal of suitable employment.

The employing agency offered the job of office clerk to an employee who had formerly been an aircraft mechanic. The employer advised the claimant of the duties and physical requirements of the position, while advising him that if the Office found the position offered to be suitable, he would have to accept the job or lose his compensation benefits. The claimant advised the employer within the 15 days allotted that he was refusing the job. He stated that his refusal was because he had heard that the job would not last any longer than a year, and that the only benefits provided would be sick leave. The following day the claimant's physician prepared a report indicating that the claimant could perform the work of the position offered and that the requirements were fully within his physical restrictions.

Subsequently, the Office advised the claimant in writing that it found the position to be suitable, that the position was still available, and that he had 30 days to accept the position or to provide valid reasons justifying his refusal to do so. Within a week the claimant responded that he would not accept the offer because he needed to learn whether the job was temporary and whether it offered any benefits. He also offered that his specialist was having him get an MRI. The Office let the claimant know that his reasons for refusal were not valid and that he had not substantiated that his medical condition had worsened or that he was not able to perform the duties of the job offered. The Office again advised that the job was still available and that this time he had 15 days to respond. The claimant subsequently refused the job again stating that a job that lasted only a year was temporary. The Office terminated the claimant's benefits on the grounds that he had refused suitable work.

The Board noted that the Office has a specific burden to discharge when it terminates benefits under Section 8106(c) of the FECA for refusal to accept suitable employment. It found that the Office had properly discharged its burden before terminating compensation in this case by affording the claimant due process. At the same time the Board noted that the Regulations at 20 CFR 10.124(c) provide that the claimant also has a burden to show that his failure to work after suitable work is offered was reasonable or justified. However, the description above clearly indicates that the claimant failed to show that the reasons given justified his refusal. A position which will last one year or more cannot be considered temporary, and the medical evidence of record supported that the duties were well within the claimant's physical limitations.

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