2001 FECA Circulars Archive

2001 FECA Circulars which have previously been issued by the DFEC but have since been superseded by another Circular or inclusion in the FECA Procedure Manual.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 2001
Circular	Subject
FECA Circular No. 01-01	DUAL BENEFITS - FERS COLA
FECA Circular No. 01-02	Current Interest Rates for Prompt Payment Bills and Debt Collection
FECA Circular No. 01-03	Code changes for the Departments of Agriculture, Defense, Justice, Labor, State, and Veterans Affairs, and the Federal Judiciary and the U.S. Postal Service, Case Management Users' Manual, Appendix 4-7
FECA Circular No. 01-04	Selected ECAB Decisions for April – June 2000
FECA Circular No. 01-05	Selected ECAB Decisions for July - September, 2000
FECA Circular No. 01-06	Current Interest Rates for Prompt Payment Bills and Debt Collection

Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 01-01

January 9, 2001

SUBJECT: DUAL BENEFITS – FERS COLA

Effective December 1, 2000, Social Security Benefits will increase by 3.5%. 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 4, 2000. No adjustment will be made for the period December 1, 2000 through December 3, 2000.

If there are any cases currently being adjusted for FERS Dual Benefits that have not been entered correctly, please ensure that all necessary corrections have been made.

The National Office will provide a notice to each beneficiary affected. A copy will be provided for each case file.

SSA COLA's are as follows:

Effective December 1, 2000: 3.5%
Effective December 1, 1999: 2.4%
Effective December 1, 1998: 1.3%
Effective December 1, 1997: 2.1%
Effective December 1, 1996: 2.9%
Effective December 1, 1995: 2.6%
Effective December 1, 1994: 2.8%

DEBORAH B. SANFORD
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, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 01-02

January 9, 2001

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

The interest rate to be assessed for the prompt payment bills is 6.375 percent for the period January 1, 2001 through June 30, 2001.

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 also changed. The interest rate for assessing interest charges on debts due the Government is 6.0 percent for the period of January 1, 2001 through December 31, 2001.

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

DEBORAH B. SANFORD
Acting 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)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 01-03

March 30, 2001

SUBJECT: Code changes for the Departments of Agriculture, Defense, Justice, Labor, State, and Veterans Affairs, and the Federal Judiciary and the U.S. Postal Service, Case Management Users' Manual, Appendix 4-7

The Case Management Users' Manual is being updated and revised to reflect multiple changes, including the addition of several new codes. For the Department of Agriculture, two new codes have been added to reflect Farm Service Agency County Offices and employment by certain colleges in the Cooperative Extension Service. For the Department of Defense, three agencies have been renamed, including one agency which was formerly part of the Defense Logistics Agency but is now an independent Defense agency. For the Department of Justice, chargeback code 1542 has been added to reflect the creation of the National Drug Intelligence Center. For the Department of Labor, four new chargeback codes have been added, and three existing agencies have been re-named, all within the Department of Labor's Employment and Training Administration. For the Department of State, three agencies have different names, and four new chargeback codes have been added to reflect injuries reported by separate Bureaus in the Department of State. For the Department of Veterans Affairs, two current chargeback codes have been changed to reflect the move or expansion of a VA Medical Center. For the Federal Judiciary, the name of the U.S. Claims Court has been changed to reflect the new title of the Court of Federal Claims, and a new chargeback code has been added to reflect coverage for employees of the Court Services and Offender Supervision Agency, part of the District of Columbia Court system covered under FECA. Finally, for the U.S. Postal Service, 11 new chargeback codes have been added to reflect injuries reported by employees of 10 separate Area Offices and 1 Remote Encoding Center.

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.

DEBORAH B. SANFORD
Director for
Federal Employees' Compensation

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.

_________________________________________________________________

Chargeback Codes
Trans-action type	Code	Dept.	Agency

Add	8508	Agric	Farm Service Agency County Offices
" "	8510	" "	Cooperative Extension Service - 1890 Colleges

Add	1542	Justice	National Drug Intelligence Center

Add	1102	Labor	ETA - Office of the Assistant Secretary
" "	1132	" "	ETA - Office of Financial & Administrative Mgmt
" "	1133	" "	ETA - Office of Technology & Information Services
" "	1134	" "	ETA - Office of Adult Services

Add	1337	State	Nonproliferation Bureau
" "	1338	" "	Office of the Chief of Protocol
" "	1339	" "	Bureau of Western Hemisphere Affairs
" "	1340	" "	Bureau of South Asian Affairs

Add	1372	Judiciary	Court Services & Offender Supervision Agency

Add	5106	USPS	Allegheny Area Office, Cleveland, OH
" "	5107	" "	Capitol Metro Area Office, Gaithersburg, MD
" "	5108	" "	Great Lakes Area Office. Bloomingdale, IL
" "	5110	" "	Midwest Area Office, Kansas City, MO
" "	5111	" "	New York Area Office, New York, NY
" "	5112	" "	West-Denver Area Office, Denver, CO
" "	5113	" "	Pacific Area Office, San Francisco, CA
" "	5114	" "	Southeast Area Office, Jacksonville, FL
" "	5115	" "	Southwest Area Office, Dallas, TX
" "	5117	" "	West-Seattle Area Office, Seattle, WA
" "	5120	" "	Glendale, AZ Remote Encoding Center (REC)

Change	3012	Defense	from: NIMA North Annex to: NIMA Geographically Separate Units

" "	3069	" "	from: Defense Systems Management College to: Defense Acquisition University

" "	3037	" "	from: Defense Contract Mgmt Cmmd, West District to: Defense Contract Mgmt Agency, West District

" "	3073	" "	from: Defense Contract Mgmt Cmmd, Northeast Dist to: Defense Contract Mgmt Agency, Northeast Dist

" "	3074	" "	from: Defense Contract Mgmt Cmmd, Mid-Atl Dist to: Defense Contract Mgmt Agency, Mid-Atl Dist

" "	3075	" "	from: Defense Contract Mgmt Cmmd, N Central Dist to: Defense Contract Mgmt Agency, N Central Dist
_________________________________________________________________
Trans-action type	Code	Dept.	Agency

Change	3076	Defense	from: Defense Contract Mgmt Cmmd, South Dist to: Defense Contract Mgmt Agency, South Dist

" "	3077	" "	from: Defense Contract Mgmt Command, All Other to: Defense Contract Mgmt Agency, All Other

Change	1103	Labor	from: Bureau of Apprenticeship & Training to: Ofc of Apprenticeship Trng, Empl & Labor Svcs

" "	1115	" "	from: Ofc of Strategic Planning and Policy Devel to: Office of Policy Research

" "	1125	" "	from: U. S. Employment Service to: Office of Workforce Security

" "	1128	" "	from: Office of Job Corps to: Office of Youth Services

Change	1307	State	from: Bureau of Near Eastern & S Asian Affairs to: Bureau of Near Eastern Affairs

" "	1329	" "	from: Bureau of Intl Narcotics Matters to: Bureau of Intl Narcotics & Law Enforcement

" "	1332	" "	from: Bur of Oceans & Intl Envir & Scientif Aff to: Bur of Oceans, Environment & Science

Change	4150	VA	from: Allen Park VA Hospital to: Detroit VA Medical Center

" "	4186	" "	from: Las Vegas Clinic To: Las Vegas VA Medical Center
Change	1363	Judiciary	from: U. S. Claims Court to: Court of Federal Claims

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 01-04

June 2000

SUBJECT: Selected ECAB Decisions for April – June 2000

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 of the following: four decisions on loss of wage-earning capacity; one decision involving performance of duty; a decision involving the use of an affirmative defense by the Office upon rescinding an acceptance; two decisions addressing refusal of suitable work; and others. If you find, upon reviewing a decision summary, that it affords guidance in a topic that you are addressing, you should obtain the ECAB decision in its entirety for your thorough review.

DEBORAH B. SANFORD
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)

LOSS OF WAGE-EARNING CAPACITY

Lucretia D. Jones, Docket No. 98-991, issued April 20, 2000; Seldon H. Swartz, Docket No. 98-48, issued April 17, 2000; and Francisco Bermudez, Docket 98-1395, issued May 11, 2000

These three decisions concerned whether the LWEC determination fairly and reasonably represented the claimant's wage-earning capacity.

In Lucretia D. Jones, the issue was whether the Office properly determined that the claimant's actual earnings as a modified distribution clerk represented her wage-earning capacity. The claimant's accepted condition was aggravation of osteoarthritis bilaterally. She returned to work after having total knee replacement surgery as a modified clerk for six hours per day.

The Board noted that among the considerations to be made in determining whether a position fairly and reasonably represents the claimant's wage-earning capacity are: 1) whether the job is part-time or full-time; 2) whether or not the job is seasonal; and, 3) whether the job is permanent or temporary. In this case, the Board stated that since the claimant had the ability to work a maximum of six hours per day, five days per week, and she was provided with a permanent position within those guidelines, the position fairly and reasonably represented her wage-earning capacity. It therefore found that the finding of suitability by the Office was proper.

The Board affirmed the Office's decision, noting that it had properly determined that the modified clerk position fairly and reasonably represented the claimant's wage-earning capacity.

In Seldon H. Swartz, the claimant was employed as a service technician for the Forest Service and suffered an injury which resulted in a herniated disc at L5-S1. The claimant did not return to employment with the employing agency, but obtained a position as an Education Services Director at an area health education center. The Office used this information to terminate compensation on the basis that his actual earnings exceeded those of his date-of-injury job. When the claimant's place of employment closed down 16 months later, he requested that his compensation be reinstated.

Thereafter, the Office rated the claimant as an MRI technician; however, that decision was remanded by Hearings and Review on the basis that that position was not shown to be reasonably available in the claimant's area. Subsequently, the Office found that the claimant's earnings in the position of Education Services Director fairly and reasonably represented his wage-earning capacity, and that he was not entitled to compensation since his earnings in that capacity would exceed his date-of-injury position.

The claimant contested the decision on the following grounds: 1) that he did not have the experience required for the position; 2) that he never actually performed the duties of the position when he had that job title; and 3) that when the position description and the claimant's experience were compared, he did not meet the qualifications listed. The Board noted that the claimant's contentions suggest that the duties he performed may have been makeshift work, and as such would clearly not have been representative of his wage-earning capacity.

The Board remanded the case, holding that the Office may not use a possible makeshift position to represent a claimant's wage-earning capacity, unless it demonstrates that this question has been investigated. It also noted that this question will be more closely scrutinized when the Office applies the LWEC determination to a period after the employee no longer works in the position selected. The Board directed remand for the Office to address the claimant's contention that the position of education services did not fairly and reasonably his wage-earning capacity.

In Francisco Bermudez, the Office determined the claimant's WEC was represented by the position of cashier. The claimant had been a 57-year-old emergency firefighter in 1990 when he sustained a facial contusion, laceration of the eyebrow, and left shoulder strain in the course of his employment. He incurred permanent residuals due to his work injury from musculoligamentous strain affecting the left shoulder.

Approximately a year later the Office initiated vocational rehabilitation efforts. However, this was hampered due to the claimant's inability to speak or understand English, his intelligence quotient on psychological testing, and his extremely limited education (one year of formal schooling in Mexico). The claimant was enrolled in a one-year English as a Second Language (ESL) course. The period of the claimant's English training was extended for an extra 4 months due to his poor progress. Subsequently, the claimant was enrolled in a cashiering training course which also included ESL.

Six years later the Office reduced compensation based on the determination that the position of cashier/checker fairly and reasonably represented the claimant's wage-earning capacity. He had not performed or progressed well according to his instructor at the training center, who also indicated that she did not think that further training would make any difference.

Upon review, the Board found that the WEC determination was improper, stating that the Office had failed to meet its burden to justify reduction of benefits. The Board also noted that the medical evidence the Office had relied on to show that the claimant was capable of performing the duties of cashier was nearly three years old, and that the position description provided to the doctor at that time was not consistent with the description used to reduce compensation. The Board concluded that the Office had failed to give due regard to the factors enumerated under §8115 of the FECA in determining the claimant's wage-earning capacity. The Board reversed the decision and remanded the case, directing that the Office clarify the claimant's employment status and pay rate for compensation purposes.

These three decisions emphasize the following points: 1) WEC determinations should be made with due regard to the claimant's maximum ability to work and the permanency of the position offered; 2) if the position description upon which the WEC is based in not consistent with the actual duties of the position, the Office should consider whether the position was makeshift; 3) due consideration should be given to the claimant's education and experience when selecting a position for a WEC determination; and 4) the selected DOT position must be consistent with the medical restrictions.

LOSS OF WAGE-EARNING CAPACITY

Darryl Leggett, Docket No. 98-1531, issued April 4, 2000

In this case the claimant had been a 42-year-old motor vehicle operator when he sustained a work-related injury that was accepted for lumbar sprain/strain.

After several courses of physical therapy and more than a year later, the case was referred to vocational rehabilitation. When it was found that the employing agency had no limited duty for the claimant, assistance in a job search was initiated. Vocational and psychological testing indicated that the claimant could perform the duties of the position of cashier I and II. After approximately seven months, the rehabilitation counselor stated that the placement effort had been unsuccessful and closed the file, indicating that the job of cashier was reasonably available in the Philadelphia commuting area. Thereafter, the Office computed the claimant's constructed wage-earning capacity as a part-time cashier and proposed reduction of benefits accordingly. In the final decision, the Office weighed the medical evidence and noted that the position fairly and reasonably represented the claimant's wage-earning capacity.

On affirming the decision, the Board found that the Office had met its burden to reduce benefits, and had made a proper LWEC determination. The Board noted that the Office had followed its own procedures by, first, contacting the employing agency to attempt returning the claimant to a limited capacity in his prior employment. When that was unsuccessful the claimant was referred to rehab, was given psychological and vocational testing, and was assisted in a job search. When the foregoing was unsuccessful, the Office had proposed reduction of compensation via a constructed LWEC based on the weight of the medical evidence indicating that the claimant could perform the duties of the selected position.

DETERMINING PAY RATE

Walter L. Neitzel, Docket No. 98-1442, issued April 26, 2000

In this case, the Board remanded decision with respect to the claimant's pay rate for compensation purposes.

The claimant had been a 58-year-old field representative when he sustained a work-related neck strain and left shoulder impingement. In determining the claimant's pay rate, the Office initially noted that he was a permanent part-time employee who had worked 27 weeks in the year prior to the employment injury. The information had been obtained from a CA-1030 partially completed by the employing agency; the employer had failed to complete the portion of the CA-1030 which provided the annual earnings of a similar employee in the same kind of appointment. The Office derived the claimant's average earnings by dividing 52 into the total wages earned for the 27 weeks.

The Board stated that the FECA provides for different methods of computation of the average annual earnings depending on the circumstances of the case. Section 8114(d) of the Act provides three methods for determining average earnings. The first subsection, 8114(d)(1), is to be used when the employee had worked substantially the whole year preceding the injury in the date-of-injury job. If the salary was fixed, the average annual earnings are the actual rate of pay. However, if the salary was not fixed the average annual earnings is derived by multiplying the daily wage by 300, 280 or 260, depending on whether the claimant worked a 6-day, 5½-day or 5-day workweek.

The second method, described in subsection 8114(d)(2), applies when the claimant had not worked for substantially the whole year, but when the job held would have afforded employment for the whole year, had it not been for the injury. In this situation, the average annual earnings are equal to those of an employee of the same class working in the same or similar employment for substantially the whole year.

The Board also described the method applied in the third subsection, 8114(d)(3), to be used when neither (1) nor (2) could be applied reasonably and fairly. In such a situation the Board stated:

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

On review of the case, the Board held that the Office had not adequately applied the standards of section 8114(d) of the FECA in determining the claimant's pay rate. The Board stated that, given the circumstances of the case, the Office should have applied section 8114(d)(3) to determine the claimant's pay rate. The Board noted that if the Office had considered any of the factors delineated in 8114(d)(3), it would have pursued getting the employer to complete the portion of form CA-1030 which requests information regarding the annual earnings of another employee with the same kind of appointment and working in a job with the same or similar duties. The Board added that the Office did not fully comply with its procedural requirements to obtain adequate information concerning the factors delineated in section 8114(d) of the Act.1 In addition, the Board found that the Office failed to consider previous earnings, prior non-federal employment, and possible full-time work with another employer.

PAY RATE FOR COMPENSATION PURPOSES – LEARNER'S CAPACITY

Carolyn M. Bosley, Docket No. 99-28, issued April 20, 2000

In this case, the claimant's work injury resulted in a left trapezoid strain and a cervical spine strain, and compensation was paid based on her date-of-injury pay rate. The employing agency terminated her employment four months after the injury on the basis that she was unable to perform the duties of the position.

Subsequently, the claimant contended that the Office should have based compensation on the salary she received upon her career appointment as a Mail Processor, which occurred on June 29, 1991, since she was in a learner's capacity at the time of her work injury. Thereafter, the Office found that the claimant had not been in a learner's capacity at the time of her injury, as she was not enrolled in a formal training program with a specified period for completion followed by an automatic promotion.

The district office decision, which had been affirmed by Hearings and Review, was also upheld by the Board. The Board noted that the Act, in Section 8113(a), provides as follows:

"If an individual – (1) was a minor or employed in a learner's capacity at the time of injury; and (2) was not physically or mentally handicapped before the injury; the Secretary of Labor, on review under section 8128 of this title after the time the wage-earning capacity of the individual would probably have increased but for the injury, shall recompute prospectively the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to the probable wage-earning capacity."

The Board also described the circumstances delineated in its prior decisions, which include the following: 1) whether the employee was in a formal training program; 2) whether the job classification described an "in-training" or learning position; 3) whether the position held was one in which the employee could have remained indefinitely; and 4) whether any advancement would have been automatic, or contingent upon ability, past experience or other qualifications.

The Board found that the claimant had not established that she was in a formal training program at the time of her injury, and pointed out that the employer had not offered her the casual appointment as training, but instead as an opportunity for her to demonstrate her rehabilitation. Furthermore, the Board stated that 8113(a) contemplates an increase in compensation in the event that the work injury prevents the employee from obtaining a higher-paying position at the end of a training program. In the present case, the claimant was not prevented from obtaining higher pay by her employment injury, and for that reason alone, the Board stated that § 8113(a) of the Act does not apply to her situation.

SCHEDULE AWARD – INCLUDING PRE-EXISTING IMPAIRMENT TO VISION

Mike Reid, Docket No. 98-2593, issued June 9, 2000

This claim was accepted for a corneal abrasion with scarring in the left eye. Payment was issued for 100% permanent impairment to the left eye, based on an uncorrected visual acuity of 20/200.

After payment of the schedule award, new evidence was submitted that showed the claimant's low visual acuity pre-existed the work injury and remained unchanged. The Office modified the prior award, granting 10% impairment due to injury-related ocular deformity interfering with visual function, based on page 209 of the AMA Guides to the Evaluation of Permanent Impairment (fourth edition 1993).

The Board found that the Guides require combining the 10% injury-related impairment in visual function with the claimant's pre-existing impairment of visual acuity to determine the total percentage of loss of function of the eye. The Board reversed the award modification, noting that the initial calculation of 100% permanent impairment was correct.

PERFORMANCE OF DUTY – IMPACT OF STATE DECISION REGARDING TERMINATION

Lynda Moore, Docket No. 99-771, issued June 22, 2000

A claim for an emotional condition was filed, alleging overwork, discrimination, and employer abuse in administrative and personnel matters. The claim was denied on the basis that no compensable factor of employment was established. An Office hearing representative upheld the decision.

To support an allegation of wrongful termination, the claimant submitted a decision from the Illinois Department of Employment Security regarding her entitlement to unemployment insurance benefits. The decision found that she was not fired for "misconduct" as defined under the applicable state statutory authority.

The Board found that the state agency's decision did not establish that the termination action itself was erroneous or abusive. Rather, the Board found that the state standard of "misconduct" was limited to the issue of entitlement to unemployment benefits and did not constitute probative evidence of error or abuse. The Office's prior decisions were affirmed.

AFFIRMATIVE DEFENSE – USE IN RESCINDING ACCEPTANCE

Patricia McKibben (widow of Jimmy McKibben), Docket No. 00-452, issued June 9, 2000

A claim for death benefits was filed, contending that the employee's death in a one-car motor vehicle accident while traveling to an employment-related meeting was work related. The claim was accepted.

New evidence was later submitted to show that the employee was intoxicated when the accident occurred. The Office rescinded acceptance of the claim on the basis that the employee's intoxication removed him from performance of duty at the time of the accident.

The Board reversed this decision, stating that intoxication can only be invoked as an affirmative defense under section 8102(a) during the original adjudication of the claim. As the Office did not invoke an affirmative defense at the time of initial adjudication, it is precluded from doing so at a later time. The Board held that the employee's death occurred in the performance of duty.

PENALTY PROVISION § 8106(C) – REFUSAL OF SUITABLE WORK

Alfredo Mata, Docket No. 98-1269, issued May 19, 2000

In this case, the issue was whether the Office's termination of compensation for refusal of suitable work was proper.

The claimant was a 37-year-old letter carrier who suffered contusions to his head and back, and sprains to his neck and right wrist when he slipped in a soap spill in the employees' bathroom. The Office paid compensation on the basis of TTD for a period and then paid compensation for the hours not worked once the claimant returned to work at four hours per day. Four years thereafter, the claimant's treating physician found that he had permanent restrictions which included working no more than four hours a day.

The employing agency offered the claimant a permanent position that was within the restrictions imposed by his treating orthopedic surgeon, but on returning to work, he claimed increased pain and work related stress. The employing agency revised the duties several times to comply with new job restrictions imposed by the claimant's physician, but he refused to sign the job offer. Due to the claimant's relocation four years earlier, his physician found that the commuting distance of 80 miles one-way would be too great. Subsequently, the Office proposed to terminate TTD for the period commencing June 10, 1992, holding that the claimant had not shown a worsening of his condition during that period. The claimant was allowed 30 days to accept the position or provide reasonable justification for his refusal. When the claimant subsequently provided the reason that three physicians had restricted him from traveling more than 20 miles to work, the Office advised him that his reason for refusal was not justified, and allowed him another 15 days to accept the offer without penalty. When the claimant offered substantially the same reason for refusing the position, the Office terminated his benefits accordingly.

On affirming the termination, the Board pointed out that the distance of the drive to the offered position was not considered, since the commute would have been by the claimant's choice.2 The Board noted that the only relevant factors were that the claimant remained on the rolls of the employing agency and that he moved away from the commuting area after his employment injury. It added that a move, even to seek less expensive housing, is not sufficient reason for refusal of suitable work. The Board has held on numerous occasions that an employee's move out of the commuting area is not an acceptable reason for refusal.3 In this instance, the Board ruled that the Office properly terminated compensation in accordance with the provisions of § 8106(c)(2).

PENALTY PROVISION § 8106(C) – REFUSAL OF SUITABLE WORK

Ruggiero A. Pignotti, Docket No 99-190, issued May 15, 2000

In this case, the claimant was a 67-year-old retired motor vehicle operator who had sustained an employment injury which resulted in a torn right rotator cuff and two shoulder surgeries.

Six months following the second surgery, the employing agency offered the claimant a limited-duty position as a modified motor vehicle operator based on the physical restrictions imposed by his treating physician. When the claimant refused the position, he stated that he had decided to retire and that his physician had found him to be permanently disabled.

Upon review of the case, the Board found that the Office had properly terminated the claimant's benefits under the penalty provisions of § 8106(c) for refusing an offer of suitable work. The Board noted that under those provisions, the Office must justify termination by 1) demonstrating through medical evidence that the position is suitable, 2) advising the claimant of its finding that the work offered is suitable and offering the claimant an opportunity to show that the refusal of such work was reasonable or justified, and 3) advising the claimant that the reasons given for failure to accept the offer were not considered justification. The Board added that once the above is done, the claimant must be given another opportunity to accept the offer of employment, i.e., the position must remain open and available to the claimant for at least 15 more days. On the basis that the Office had satisfied all the requirements of due process, the Board affirmed the decision noting that it had properly terminated the claimant's wage-loss compensation. The Board further stated that a claimant's election to receive retirement benefits was not a reasonable justification for refusal of the job.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 01-05

October, 2001

SUBJECT: SELECTED ECAB DECISIONS FOR JULY - SEPTEMBER, 2000

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

The subjects addressed include: timely filing of an appeal; reconsideration - non-merit review; refusal of suitable employment; schedule award - hearing loss; schedule award - maximum medical improvement; wage-earning capacity - constructed position.

DEBORAH B. SANFORD
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, Rehabilitation Specialists and Staff Nurses)

APPEALS - TIMELY FILING

Curtis A. Hobbs, Docket No. 1997-1776, Issued August 24, 2000

The issue in this case was whether the Office properly found that the claimant's request for reconsideration was not timely filed and failed to present clear evidence of error.

On April 2, 1997, the claimant filed a claim for occupational disease for a bilateral hearing loss. By decision dated September 19, 1997, the Office denied the claim on the grounds that the claimant had not submitted medical evidence sufficient to establish that his hearing loss was caused by factors of his federal employment. In a letter received by the Office on Monday, September 21, 1998, the claimant requested reconsideration and submitted a copy of an October 15, 1997 report from a physician who opined that the claimant's hearing loss was consistent with noise exposure during his federal employment. By decision dated March 15, 1999, the Office found that the claimant's request for reconsideration was untimely and that the evidence submitted did not establish clear evidence of error.

The Board noted that the Office's most recent merit decision was issued on September 19, 1997 and the claimant was required to file his request for reconsideration by September 19, 1998. However, because that date fell on a Saturday, a non-business day, the claimant's one-year deadline for requesting reconsideration was extended to the next business day, i.e. Monday, September 21, 1998.

Consequently, the Board set aside the Office's decision and remanded the case for proper consideration of the claimant's timely filed reconsideration request.

RECONSIDERATION - NON-MERIT REVIEW

Granville O. Allen Docket No. 1998-0735, Issued August 4, 2000

In this case, the issue under consideration by the Board is whether the Office abused its discretion in refusing to reopen the claimant's case for a merit review. In an October 24, 1997 letter, the claimant inquired about the status of his request for reconsideration submitted on July 24, 1997. He indicated that he had submitted documentation that established his claim when he submitted the July 1997 request for reconsideration, ninety (90) days had elapsed since his request and he had not received a decision. In support of his status request the claimant submitted a postal express mail receipt showing that he had sent something to the Office in July 1997. The Office treated the October 1997 letter as a request for reconsideration. The Office denied the request without a merit review of the record on the grounds that it neither raised substantive legal questions nor included new and relevant medical evidence and, thus, was insufficient to warrant review of the prior decision.

The Board remanded this case for additional development ruling that the Office erred by issuing its findings based on an incomplete record. The evidence allegedly submitted by the claimant in July 1997 was not present in the case at the time of the decision and the Office failed to request this information prior to issuing its decision.

Since the claimant had submitted evidence in support of his allegation that he had previously requested reconsideration that included additional evidence in support of his claim, the Office was obligated to solicit that additional evidence prior to issuing its decision on the claimant's request for reconsideration.

REFUSAL OF SUITABLE EMPLOYMENT

Veronica L. Fiorentino, Docket No. 1999-1252, Issued August 3, 2000

There are two issues before the Board in this claim. However, the issue of interest pertains to the decision of whether the Office properly terminated the claimant's entitlement to compensation on the grounds that she refused an offer of suitable work. The claimant sustained a work related injury on January 25, 1998. The Office accepted that the claimant sustained lumbosacral, left shoulder, left ankle and bilateral knee sprains, and contusions to the abdomen and chest.

On June 1, 1998, the claimant's attending physician released her to work with restrictions. On July 1, 1998, the employing agency offered the claimant employment within the restrictions set forth by her attending physician. On July 2, 1998, the Office found the position suitable and advised the claimant that she had thirty (30) days to accept the position or show good reason for not doing so. On July 15, 1998, the claimant notified the employing agency that she was refusing the offered position. In support of the refusal, the claimant provided a medical report from her attending physician indicating that she was totally incapacitated due to a "herniated disc, L5-S1".

By decision dated August 18, 1998, the Office terminated the claimant's compensation benefits finding that she had failed to respond to the Office's July 2, 1998 letter and that the medical evidence provided to the employing establishment was insufficient to justify her refusal of the position based on the fact that the physician provided no rationale for his conclusions and a herniated disc was not an accepted employment condition.

The Board reversed the Office's decision in this case stating that, the Office's procedures provide that if medical reports in the file document a condition which has arisen since the compensable injury and this condition disables the claimant from the offered job, the job will be considered unsuitable, even if the subsequently acquired condition is not work related.

SCHEDULE AWARD - HEARING LOSS

Jeffrey J. Stickney, Docket No. 1999-1659, Issued August 7, 2000

In this case, the issue under consideration by the Board is whether the Office properly calculated the claimant's entitlement to a schedule award for a 7% binaural hearing loss.

The Office accepted that the claimant sustained an employment-related binaural hearing loss. The medical evidence established that the claimant has a 43% monaural hearing loss in his left ear, a 0% monaural hearing loss in his right ear and a 7% binaural hearing loss.

The Board cited FECA Program Memorandum No. 181 (issued November 26, 1974) which provides "On occasion, the allowances for loss of hearing in each ear, if computed separately, may be greater than the combined value of bilateral hearing loss." In such cases, the claimant should be given the benefit of the more favorable allowance.

In this case, the claimant's monaural hearing loss, when calculated separately, equates to 22 weeks of compensation as opposed to 14 weeks of compensation for the 7% combined binaural loss.

The Board modified the Office's decision to reflect the claimant's entitlement to the additional eight (8) weeks of compensation based on the monaural hearing loss calculation.

SCHEDULE AWARD - MAXIMUM MEDICAL IMPROVEMENT/AUGMENTED COMPENSATION RATE

Mark P. Brown, Docket No. 1999-0585, Issued August 2, 2000

There are two issues before the Board in this claim. However, the issue of interest pertains to the decision of whether the claimant is entitled to payment of his schedule award at the augmented rate.

On August 27, 1997 the claimant filed a claim for a schedule award, listing his dependent as his "girlfriend". An August 6, 1997 medical report provided an impairment rating and found that the claimant reached maximum medical improvement on August 6, 1997. The Office medical adviser, in a report dated August 19, 1997 concurred with the finding of August 6, 1997 as the date of maximum medical improvement.

In a letter dated January 5, 1998, the claimant advised the Office that his son had been his dependent until June 1997. He requested augmented compensation on the grounds that he would have filed for a schedule award while his son was still a dependent had he known that he was entitled to an award.

By decision dated February 12, 1998, the Office found that the claimant was not entitled to the augmented compensation rate because his son was not his dependent on August 6, 1997, the date he reached maximum medical improvement.

In July 1998, the claimant requested reconsideration and resubmitted an April 6, 1995 work capacity evaluation from his attending physician who listed the date of maximum medical improvement as April 6, 1995. The Office denied the claimant's request for reconsideration on the grounds that the evidence submitted was irrelevant and insufficient to warrant review of the prior decision.

In the instant case, the claimant had a dependent son until June 1997. His schedule award began on August 6, 1997, the date the Office determined that the medical evidence established that he had reached maximum medical improvement. On appeal, the claimant contended that the Office incorrectly set the date of maximum medical improvement.

The Board affirmed the Office's decision stating

The Office generally establishes the date of maximum improvement as the date that appellant was medically evaluated for purposes of making a schedule award. In the instant case, the Office set the date of maximum medical improvement and thereby the date on which the period of the schedule award would begin, as August 6, 1997, the date of appellant's impairment evaluation. Both Dr. Boehle, appellant's physician who evaluated him for schedule award purposes, and the Office medical adviser, who reviewed Dr. Boehle's report, found that appellant had reached maximum medical improvement on August 6, 1997. While Dr. Taylor, another attending physician, indicated in a work restriction evaluation dated April 6, 1995 that appellant reached maximum medical improvement on that date, he did not evaluate appellant for purposes of determining impairment for a schedule award. Therefore, the opinions of Dr. Boehle and the Office medical adviser constitute the weight of the medical evidence and establish that appellant reached maximum improvement on August 6, 1997. As appellant did not have a dependent on that date, he is not entitled to compensation at the augmented rate.

WAGE EARNING CAPACITY - CONSTRUCTED POSITION

Beverly A. Berry, Docket No. 1999-1691, Issued August 11, 2000

In this case, there are two issues under consideration by the Board. The issue of interest is whether the Office properly reduced the claimant's compensation based on its determination that the selected position of receptionist represented her wage-earning capacity.

The Office accepted that the claimant sustained a work related injury on June 21, 1996, resulting in a cervical and lumbar strain as well as herniated discs at C3-7. The Office denied the claim that her depression and anxiety conditions were related to the June 21, 1996 work injury. The Office noted that the claimant had pre-existing asthma and bipolar disorder and was involved in a non-work related motor vehicle accident in February 1997.

The Office determined that the position of receptionist represented the claimant's wage-earning capacity as of April 26, 1998. The Board reversed this decision.

The Board noted that, while the Office acknowledged that the claimant had a pre-existing condition of bipolar disorder, the Office knowingly excluded this information from consideration when selecting a position that ostensibly reflected appellants' vocational wage-earning capacity. The record indicates that the Office specifically instructed the rehabilitation specialist to identify appropriate positions that were based solely on appellant's orthopedic limitations. This directive was clearly contrary to the Office's procedure manual.

When the evidence of record supports that a medical condition pre-existed the work injury, the Office must establish work restrictions for that condition as well as any of the medical conditions accepted as resulting from the work injury.

In this case, although the claimant failed to establish that her depression and anxiety conditions were related to the work injury, the bipolar disorder pre-existed the work injury. Therefore, the Office was obligated to establish, not only orthopedic work restrictions, but also psychiatric work restrictions based solely on the bipolar disorder.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 01-06

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

The interest rate to be assessed for prompt payment bills is 5.875 percent for the period July 1, 2001 through December 31, 2001.

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 interest rate for assessing interest charges on debts due the Government remains 6.0 percent for the period from January 1, 2001 through December 31, 2001.

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

DEBORAH B. SANFORD
Director for
Federal Employees' Compensation

Attachments

PROMPT PAYMENT INTEREST RATES
Date	Percentage
7/1/01 - 12/31/01	5 7/8%
1/1/01 - 6/30/01	6 3/8%
7/1/00 - 12/31/00	7 1/4%
1/1/00 - 6/30/00	6 3/4%

7/1/99 - 12/31/99	6 1/2%
1/1/99 - 6/30/99	5.0%
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%

DMS INTEREST RATES
Date	Percentage
1/1/01 - 12/31/01	6%
1/1/00 - 12/31/00	5%

1/1/99 - 12/31/99	5%
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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