Active FECA Bulletins (1996-2000)

Division of Federal Employees' Compensation (DFEC)

FECA Bulletins have been divided into five-year groups to make it easier for you to search and find the information you are looking for. Active War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.

Table of Contents

1999, 1998, 1997

**Fiscal Year 1999**
Bulletin	Subject
FECA Bulletin No. 99-10	New Regulations - Continuing Benefits (02/99A)
FECA Bulletin No. 99-11	New Regulations - Compensation and Related Benefits (02/99A)
FECA Bulletin No. 99-13	New Regulations - Medical and Related Benefits (02/99A)
FECA Bulletin No. 99-16	New Regulations - Filing Notices and Claims; Submitting Evidence (03/99A)
FECA Bulletin No. 99-30	Third Party--Claims from Certain Census Workers (08/99B)

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**Fiscal Year 1998**
Bulletin	Subject
FECA Bulletin No. 98-09	Performance of Duty--Alternative Worksites (05/98)

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**Fiscal Year 1997**
Bulletin	Subject
FECA Bulletin No. 97-01	Comp Pay--Direct Deposit

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FECA BULLETIN NO. 99-10

Issue Date: January 4, 1999

Expiration Date: January 3, 2000

Subject: New Regulations--Continuing Benefits

Background: The new regulations governing claims under the FECA contain a subpart headed "Continuing Benefits" that codifies several OWCP procedures and marks some changes in those procedures.

For the first time, the regulations at 10.502 explain how OWCP weighs medical evidence in reaching final decisions. This section codifies the long-held practice of weighing medical reports, including those of a second opinion and a treating physician, to determine whether a referee examination is warranted or whether a decision on ongoing compensation entitlement may be made without further medical opinion.

Section 10.505 clarifies that OPM, not OWCP, is responsible for ensuring that employing agencies make all reasonable efforts to re-employ injured workers who have fully recovered after more than one year.

Section 10.506 contains a change from the previous regulations to indicate that while employers may contact employees' treating physicians for periodic medical progress reports, this should be done only in writing. All such correspondence must also be forwarded to OWCP for inclusion in the file. Employers are also given permission to contact injured workers directly at reasonable intervals to obtain periodic medical reports addressing return to work.

OWCP's handling of reduction in force (RIF) situations is outlined in Section 10.509. This section indicates that elimination of a light-duty position via RIF or downsizing is not prima facie evidence of recurrence. Instead, OWCP must determine the injured worker's wage earning capacity based on his or her actual earnings in the light-duty job if such earnings fairly and reasonably represent his or her wage-earning capacity and no wage earning capacity decision has previously been issued. This section also indicates that, in order for an actual earnings wage earning capacity rating to be issued, the position must formally be classified by occupational series and grade level and include a written position description. Otherwise, OWCP assumes that the injured worker was employed in a non-competitive position not representative of his or her wage-earning capacity.

Section 10.516 codifies the decision of the Employees' Compensation Appeals Board in the case of Maggie Moore. It is now part of the regulations that, in order to terminate compensation based on refusal of a suitable position, OWCP must first give a 30-day notice that the job was found suitable and request reasons for refusal and then, if a response is received and found to be invalid, the injured worker must be given an additional 15 days to accept the position without penalty. If an injured worker does not respond to the 30 day letter, no further action is required prior to termination of benefits, as has been OWCP procedure.

On the same topic, section 10.517 notes that although compensation is terminated under 5 U.S.C. 8105, 8106 and 8107 in the case of refusal of suitable employment, entitlement to medical benefits continues.

Section 10.518 affords OWCP nurse intervention services the same status as vocational rehabilitation services under 5 U.S.C. 8104. This also allows the same penalty provisions for non-compliance with vocational rehabilitation services to apply to non-compliance with nurse intervention. The section, in part (b), also formally makes Functional Capacity Evaluations (FCE's) part of vocational rehabilitation services, in effect giving the current Occupational Rehabilitation Program (ORP) procedures the force of regulation.

Section 10.526 provides that individuals receiving compensation for partial or total disability are required to report volunteer activity when reporting all work activity. This will be incorporated into the new version of the CA-1032 effective January 4, 1999.

Section 10.527 provides notice that OWCP may use computer matching with various Federal and state agencies to verify wage information.

Reference: 20 CFR 10.500 through 10 CFR 10.541

Purpose: To inform OWCP staff of significant regulatory changes regarding continuing benefits.

Applicability: Claims Examiners, Senior Claims Examiners, Supervisors, Fiscal Personnel, Technical Assistants and Systems Personnel, and Hearing Representatives

Action:

1. Claims Examiners should continue basing decisions on the weight of medical evidence, only utilizing referee examinations when the weight of the medical evidence of record is truly equal, and a conflict exists therein.

2. In cases where a recurrence is claimed due to the removal of light duty, determine whether the removal was due to RIF or downsizing. If not, as has been the current practice, the claimant has established a recurrence of disability.

If the recurrence claim is due to RIF or downsizing and an actual earnings LWEC decision is in place, the claims examiner must determine whether the position utilized for that LWEC determination was classified as outlined above. If the LWEC determination was in fact based on a classified position the LWEC remains in force and the recurrence should be denied. If not, the claimant's entitlement to compensation is based upon the compensable recurrence.

If no LWEC decision is in place, the claims examiner must determine whether the light duty position the claimant was performing is appropriate for an actual earnings LWEC. To be appropriate, the position must have been classified as indicated above. If this is the case, an actual earnings LWEC should be issued. As in the case of previously issued LWEC decisions, if the position the claimant worked until the RIF is not classified, he or she is entitled to compensation due to the claimed recurrence.

3. In cases where an injured worker has refused a job offer deemed suitable, be certain to allow the full due process now required by regulation. This means that a 30-day response period must be provided initially, followed by a 15-day period to accept the job if the employee provides reasons for his or her refusal.

Note that injured workers are now required to undergo nurse intervention services, or face sanctions for non-compliance as outlined at 20 CFR 10.519. Refusal to participate at the nurse intervention stage would most generally be construed as early-stage refusal. Therefore, non-compliance with nurse intervention services would result in the assumption that participation would have resulted in employment with no loss of wage-earning capacity, and OWCP will reduce compensation to zero until the employee acts in good faith to comply with nurse intervention services. A new letter is being added to Forms Correspondence to outline the penalties for non-compliance with nurse intervention. The number of this letter will be made available separately. A copy of the letter is attached, however, so that claims examiners may begin to use it effective January 4, 1999 in appropriate situations.

5. The CA-1657, applying to early non-cooperation with vocational rehabilitation efforts, has been altered to reflect the new regulatory sections from which the authority for sanctions stem. This letter will also be made available via forms correspondence.

Disposition: Retain until incorporated in the Federal (FECA) Procedure Manual.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 3--Folioviews Groups A, B, C, and D
(All FECA Employees)

Attachment: Sample Letter--Cooperation with nurse services

File #

DATE

ADDRESS
ADDRESS
ADDRESS

Dear :

A Registered Nurse has attempted to contact you in relation to your claim under the Federal Employees' Compensation Act. The main purpose of this contact is to assist you in returning to gainful employment. Nurse services include (but are not limited to) important steps toward reemployment such as work evaluations, coordination of medical efforts, and facilitation of efforts between you and your employer. Your refusal without good cause to meet with the nurse and assist in these efforts may be seen as refusal to undergo vocational rehabilitation.

The following specific circumstances support a finding that you are refusing to cooperate with the nurse intervention, and by association, the vocational rehabilitation efforts of the Office of Workers' Compensation Programs (OWCP):

FREEFLOW TEXT

PROVISIONS OF THE LAW AND REGULATIONS

The Federal Employees' Compensation Act (FECA) at Section 5 U.S.C. 8113(b), states that a claimant must undergo vocational rehabilitation when OWCP so directs, unless there is a good reason not to do so. Therefore, if you do not undergo vocational rehabilitation as directed, including nurse services, and OWCP finds that your wage-earning capacity would likely have increased a great deal, OWCP may reduce your compensation. The amount of the reduction will be based on what you would probably have earned had you undergone nurse intervention and/or vocational rehabilitation.

Also, the Code of Federal Regulations at 20 CFR 10.518 and 20 CFR 10.519 states that an injured worker must take the steps described above to prepare for reemployment, unless there is a good reason not to do so. Therefore, unless you produce evidence to the contrary, OWCP will assume that nurse intervention would have resulted in return to work with no loss of wage-earning capacity, and will reduce your compensation accordingly--that is, to zero. This reduction will continue until you comply in good faith with OWCP's directions concerning nursing services. If you do comply, compensation will then be paid to you, except for the period when you did not comply.

If your compensation is reduced to zero under the provisions of Section 20 CFR 10.518 and 10.519, any deductions which OWCP is making for health benefits (HB) and/or optional life insurance (OLI) premiums will cease and any HB/OLI coverage will be terminated. If you later comply with OWCP's instructions, OWCP will reinstate HB/OLI coverage and deduct any past due premiums from continuing compensation.

REQUIREMENTS FOR RESPONSE

You are hereby directed to contact me within 30 days from the date of this letter to make a good faith effort to participate in the Registered Nurse's efforts to return you to gainful employment.

If you believe you have good reason for not participating in this effort, so advise this office within 30 days from the date of this letter. Give your reasons and submit any evidence to support your position. Also, if you believe that nursing services would not reduce your wage-earning capacity to zero, submit evidence to support your position within 30 days.

If you do not comply with the instructions contained in this letter within 30 days, we will end the rehabilitation effort and reduce your compensation under the provisions of Section 8113(b) and Section 20 CFR 10.519 as described above.

If you have any questions, please contact this office using the address or telephone number shown on the previous page.

Sincerely,

CLAIMS EXAMINER

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FECA BULLETIN NO. 99-11

Issue Date: January 4, 1999

Expiration Date: January 3, 2000

Subject: New Regulations: Compensation and Related Benefits

Background: Subpart E of the Regulations includes sections 10.400 through 10.441, and addresses the payment of compensation and overpayments. This subpart includes several revisions which formalize current practice. There are no new procedures related to these revisions.

COMPENSATION PAYMENTS

Section 10.400, in defining total disability, now includes a statement that OWCP expects that most employees will eventually return to work.

Section 10.404 formalizes the fact that OWCP uses the AMA Guides to the Evaluation of Permanent Impairment as its frame of reference for calculating schedule awards.

In sections 10.406 and 10.411, which concern maximum and minimum rates of compensation, the word "basic" has been prefixed to "monthly pay" to make clear that locality adjustments are not included in these determinations. Statements have also been added to recognize that compensation paid due to an assault which occurred during an attempted or actual assassination of a federal official in the performance of duty is exempted from the maximum rates.

Section 10.417, provides that OWCP may, at least twice each year, request reports to verify student status or the inability of a child over 18 to support himself or herself. This is consistent with most school enrollment schedules, and reminds recipients that a child over 18, not enrolled in school for a semester, is not eligible for survivor benefits for that semester.

New Section 10.421(c) formalizes the fact that a claimant cannot receive benefits for total disability and severance or separation pay for the same period. A schedule award or an LWEC can be paid concurrently with separation or severance pay.

New section 10.421(d) includes changes made to the FECA when the Federal Employees' Retirement System (FERS) was instituted. The relevant procedures are outlined in FECA Bulletin 97-9.

Section 10.423 reflects changes to various federal laws, making it clear that compensation payments can be garnished to collect overdue alimony and child support payments, upon presentation of a State agency or court order.

Section 10.424 condenses the material regarding representative payees into one paragraph, as the detailed guidance previously given was largely procedural rather than regulatory.

LEAVE BUY-BACK

The only reference in the revised regulations to the leave buy-back process is found in section 10.425. This section states only that an employee may claim compensation for restorable leave in accordance with the rules of the employing agency. Leave buy-back is not authorized or required by the FECA, and is not controlled by OWCP. It is controlled by each employing agency. The only relationship between those rules and the FECA is the general prohibition against paying wage-loss benefits for a period where leave was used. The previous regulatory reference to the repurchase of leave inadvertently gave the impression that OWCP controlled leave buy-back.

OVERPAYMENTS

The regulations concerning overpayments have been extensively rewritten to make it clear that a FECA beneficiary is obligated to be aware of the period for which benefits are paid and the manner in which overpayments are declared, contested and collected. The revised overpayment regulations are in sections 10.430 through 10.441.

New section 10.430 describes the method by which OWCP notifies recipients of payments. In the absence of evidence to the contrary, it will be presumed that the beneficiary received the notice. Once put on notice of a payment and the amount, the recipient is responsible for notifying OWCP of any discrepancies.

Sections 10.436 and 10.437 discuss the two circumstances under which an overpayment can be waived, and makes it clear that the equity and good conscience test for waiver applies to all individuals who are without fault regardless of whether they are present or former beneficiaries under the Act. This restores the statutory distinction between the application of the two tests for waiver, which was unintentionally removed as a result of the 1987 revision of the regulations.

Section 10.441 clarifies the fact that an overpayment is a debt subject to the Debt Collection Act of 1982, and if not paid, OWCP will recover the debt by any available means.

Reference: 20 CFR 10.400 through 10.441, FECA Bulletin 97-9

Purpose: To inform all claims staff of the revisions to the Regulations as they pertain to the payment of compensation and overpayments

Applicability: Claims Examiners, Senior Claims Examiners, Supervisors, Hearing Representatives, Fiscal Personnel, Technical Assistants and Systems Personnel

Action:

The District Offices should conduct training on this bulletin within 30 days of the date that this bulletin is received.

Disposition: This Bulletin should be retained until incorporated in the Federal (FECA) Procedure Manual.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

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

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FECA BULLETIN NO. 99-13

Issue Date: January 4, 1999

Expiration Date: January 3, 2000

Subject: New Regulations: Medical and Related Benefits

Background: Subpart D of the Regulations, which includes sections 10.300 through 10.337, has been substantially revised. This bulletin discusses the revisions to subpart D.

FORMALIZING CURRENT PRACTICE

Most of the additions merely formalize current practice. Those are as follows.

In 10.300, the statement that the employer need not issue a Form CA-16 more than one week after the occurrence of the claimed injury has been added. The purpose of the issuance of this form is to ensure that necessary immediate medical care is not hindered through uncertainty by the provider of who is responsible for payment.

Sections 10.301 and 10.316 address physician referrals. 10.301 now states that the physician designated on the CA-16 may refer a claimant for additional treatment and OWCP will pay the associated costs. 10.316 clarifies that an employee need not consult OWCP for approval when the physician initially selected refers the employee to a specialist appropriate to the nature of the injury.

Section 10.312 concerns the services of clinical psychologists. It specifies that a clinical psychologist may treat a FECA claimant within the scope of practice allowed by applicable state law.

Section 10.313 reflects OWCP policy as stated in internal procedures that preventive treatment may only be authorized where a verifiable work-related injury is present.

Sections 10.320 and 10.321 address medical referrals initiated by OWCP. A statement has been added to make clear that the claimant is not entitled to have anyone attend such examinations (except for a physician of his or her choice, at a second opinion examination) unless OWCP finds that exceptional circumstances, such as the need for having an interpreter for a hearing-impaired claimant, exist. A statement has also been added that a case file may be sent for second opinion or referee review where an actual examination is not needed, or where the employee is deceased.

Section 10.330 now includes "extent of disability" and "prognosis" in the list of items that a medical report from the attending physician should include.

To reduce confusion, a statement that the use of form reports is not required has been added to section 10.331. This section also makes it clear that medical reports must have signatures. OWCP recognizes that many medical providers use signature stamps, but reserves the right to request an original signature on any medical report.

Section 10.324 formalizes the long-standing position of OWCP that any authority that an employing agency has to require an employee to undergo a medical examination does not come from the FECA, and nothing in the FECA or the regulations affects such authority. In addition, no agency-required medical examination or related activity shall interfere with the employee's initial choice of physician or the issuance of Form CA-16.

NEW PROCEDURES

A few revisions represent new procedure. There are two significant new procedures added to this subpart. One is in section 10.314, which changes the way attendant allowances are paid. The revised procedures for attendant allowances are the subject of FECA Bulletin 99-09, and will not be repeated here.

The other significant revision is to section 10.337, regarding the reimbursement of claimants for medical expenses. When a claimant pays for medical services directly, and then applies to OWCP for reimbursement, the amount payable by OWCP will be limited by the fee schedule. The claimant may be only partially reimbursed because the amount paid to the provider exceeds the maximum allowable charge.

It is then the claimant's responsibility to ask the provider to refund to the claimant, or credit to the claimant's account, the amount he or she paid which exceeds the maximum allowable charge. If the provider does not refund or credit the excess amount paid, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may reimburse the employee the difference after reviewing the facts of the case.

A notice, which will accompany all bill payments, is currently under development. The notice will advise providers and claimants of the provisions of the fee schedule, and the prohibition of a provider seeking additional charges from the patient. It will also provide instructions to the provider and the claimant in this regard.

In addition to the two significant revisions noted above, there are a few less significant revisions that represent new procedures. They are as follows.

Section 10.303 instructs employers not to use a Form CA-16 to authorize medical testing for an employee who has merely been exposed to a workplace hazard, unless the employee has sustained an identifiable injury or medial condition as a result of that exposure.

Section 10.310 includes new references to cost effectiveness with respect to appliances and supplies, and to generic equivalents of prescribed medications. It states that OWCP will not approve an elaborate appliance or service where a more basic one is suitable. This section also gives OWCP the authority to require the use of generic medications where they are available. District office personnel are not to make determinations regarding generic medications at this time. When guidelines are developed by the National Office, you will be advised.

A statement has been added to section 10.311, which addresses the services of chiropractors, that OWCP will not necessarily require the x-ray or the report of the x-ray before adjudication. It may be requested if there is any indication in the factual or medical evidence of file that there may not be a subluxation present.

A sentence has been added to section 10.323 providing that the actions of an employee's representative will be considered the actions of the employee for the purposes of determining whether a claimant refused to submit to or in any way obstructed an examination required by OWCP.

Reference: 20 CFR 10.300 through 10.337

Purpose: To inform all claims staff of the revisions to the Regulations as they pertain to medical and related benefits

Applicability: Claims Examiners, Senior Claims Examiners, Supervisors, Hearing Representatives, Fiscal Personnel, Technical Assistants and Systems Personnel

Action:

1. The claims examiner will evaluate claims for medical and related benefits according to the provisions of the new regulations outlined above.

2. When OWCP receives documentation from a claimant that they requested refund or credit from the provider, and the provider failed to refund or credit the claimant's account, the claims examiner should review the facts of the case and make any reasonable reimbursement to the employee. The CE should also advise the claimant that they may not be reimbursed the excess amount in the future. Once such a payment is made, and the employee is aware of the monetary costs of continuing to seek treatment with such a provider, the claims examiner should consider not reimbursing the employee for any subsequent excess charges.

3. In claims where a medical report is received from a chiropractor indicating that x-rays demonstrate a subluxation, other factual and medical evidence in file should be carefully evaluated for consistency with this diagnosis. Where the evidence is consistent with the diagnosis of subluxation, that condition should be accepted, and appropriate benefits paid, without requiring the submission of the x-ray or the report of x-ray upon which the diagnosis is based. Where either factual or medical evidence of file suggests that the diagnosis of subluxation may not be accurate, the claims examiner should request that the x-ray or the report of the x-ray upon which the diagnosis was based be submitted for review prior to accepting this diagnosis.

4. The District Offices should conduct training on this bulletin within 30 days of the date that this bulletin is received.

Disposition: This Bulletin should be retained until incorporated in the Federal (FECA) Procedure Manual.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

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FECA BULLETIN NO. 99-16

Issue Date: January 4, 1999

Expiration Date: January 3, 2000

Subject: New Regulations - Filing Notices and Claims; Submitting Evidence

Background: With regard to this subject matter, the filing of notices and claims for compensation and the submission of evidence, the new regulations have organized the information differently. This involved moving some of the sections previously included in Subpart B (topics related to the appeals process) to other subparts (Subparts G and H). The new regulations have divided the topics relating to giving notice and filing claims into actions required of the claimant (§§10.100 to 10.105), and actions required of the employer (§§10.110 to 10.113).

A change that has occurred with respect to the filing of notices is referred to in §§ 10.100, 10.101, and 10.105. It is now mentioned in those sections that an employer may file a notice of injury, occupational disease or death if the employee or survivor cannot do so. Another change that is noted in the above-mentioned sections is the fact that a claimant may withdraw his or her claim for traumatic injury, occupational disease, or survivor's benefits at any time prior to the determination of eligibility for FECA benefits. However, such withdrawal must be in writing and may not include withdrawal of the notice of injury, occupational disease, or death. This will be addressed further in FECA Bulletin 99-15.

The sections which discuss the Notice of Traumatic Injury (Form CA-1) and the Notice of Occupational Disease (Form CA-2), §§10.100 and 10.101, respectively, explain how to file these forms and provide the applicable time requirements for filing. These sections also provide the web site address (www.dol.gov./dol/esa/owcp.htm) for obtaining these forms. It is also important to note that §10.102, which describes the process for filing a wage-loss claim, contains several references to Form CA-8 for claiming additional wage loss, and to Form CA-20a as the supplemental medical report form. As these forms are no longer to be used, all references to them are to be deleted and the appropriate FECA forms (CA-7 and CA-20, respectively) are to be used instead. (FECA Bulletin 99-18 discusses the CA-7 form and its uses in greater detail.) The Correction to the Final Rule, published December 23, 1998, explains exactly how all of the deletions and insertions should occur.

Section 10.102 describes the process for filing a wage-loss claim, and § 10.103 the filing process for permanent impairment (Schedule Award) claims. Section 10.104 describes situations in which it is, or is not, appropriate to file a notice and claim for recurrence of disability, along with the type of evidence required to have a recurrence claim approved. Section 10.105 gives examples for the dependent survivor of the situations in which it is appropriate, and describes how to file a claim for survivor's benefits.

The actions to be taken by the employer with regard to the filing of notices and claims for traumatic injury, occupational disease or death are addressed in §§ 10.110 through 10.113. Sections 10.115 through 10.121 of this subpart address the evidence needed to establish the claimant's burden of proof, or OWCP's burden with regard to justifying a formal decision. The basic evidence necessary to establish a claim, and the additional evidence needed for submission by the claimant in occupational disease claims are described in §§ 10.115 and 10.116. Sections 10.120 and 10.121 discuss the claimant's opportunity to submit additional evidence if desired, and OWCP's burden to request additional evidence when necessary, allowing 30 days for the submission.

The information contained in §§ 10.117, 10.118, and 10.119 pertains to the employer's responsibility to provide requested evidence in order to assist in the claims process, and opportunities for the employer to participate by submitting factual and/or medical evidence when there is disagreement as to the validity of the claim and the employer wishes to contest it.

The last few sections of this subpart, §§ 10.125 through 10.127, discuss determinations on entitlement to benefits under the FECA, or formal decisions. There is a brief discussion of how OWCP arrives at the decision, what information a decision must contain, and advice as to whom the decision is sent.

Reference: FECA Circular 99-04; 5 U.S.C. §§ 8107, 8119, 8121, 8122(b); CA-1; CA-2; CA-5 and CA-5b; CA-2a; CA-7; and CA-20.

Purpose: To focus attention on this portion of the new regulations, especially with respect to the substantive changes and to the organization of Subpart B.

Applicability: Regional Directors, District Directors, Claims Examiners, Supervisory Claims Examiners, and appropriate National Office personnel.

Action:

Training by the district offices on the subject matter of this FECA Bulletin should be incorporated into other training scheduled pertaining to the new regulations. This training should be accomplished within 30 days of receipt of this bulletin.

Disposition: This Bulletin should be retained until incorporated into the Federal (FECA) Procedure Manual, or otherwise superseded.

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, Rehabilitation Specialists, and Staff Nurses)

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FECA BULLETIN NO. 99-30

Issue Date: August 30, 1999

Expiration Date: August 29, 2000

Subject: Third Party--Claims from Certain Census Workers

Background: To conduct the Decennial Census and other kinds of census surveys, the Bureau of the Census employs enumerators and field representatives who visit private properties and interview residents of the properties to gather statistical data.

Section 5 U.S.C. 8131(a) states in part that:

If an injury or death for which compensation is payable...is caused under circumstances creating a legal liability on a person other than the United States to pay damages, the Secretary of Labor may require the beneficiary to-- (1) assign to the United States any right of action he may have...; or (2) prosecute the action in his own name.

If the beneficiary does not do so, he or she is not entitled to benefits under the Federal Employees' Compensation Act.

However, 13 U.S.C. 9(a)(2) prohibits employees of the Bureau of the Census from releasing or allowing "any publication whereby the data furnished by any particular establishment or individual under this title can be identified...." Furthermore, under 13 U.S.C. 214, anyone who releases information protected by 13 U.S.C. 9 "shall be fined not more than $5,000 or imprisoned not more than five years, or both".

Given these provisions of the law, an enumerator or field representative injured while on private property for the purpose of gathering data through an interview with a resident would either have to breach confidentiality, thus risking discipline by the Bureau of the Census and possible prosecution, or lose his or her compensation benefits.

It has therefore been determined that, except where the injury is the result of a deliberate act by the resident, OWCP claims staff should not pursue the third party aspect of a claim for injury or death filed by an enumerator or field representative of the Bureau of the Census.

Reference: 5 U.S.C. 8131(a); 13 U.S.C. 9(a)(2); 13 U.S.C. 214; and Federal (FECA) Procedure Manual Chapter 2-1100

Applicability: Supervisors, Claims Examiners, and Technical Assistants

Action:

1. For cases where an enumerator or field representative is injured while on private property for the purpose of interviewing a resident, the National Office has advised the Bureau of the Census to answer "no" to the question on Form CA-1 which asks whether the injury was caused by a third party. Doing so will allow short form closure if the claim is otherwise eligible for this action, and it will ensure that the case is coded properly for third party tracking purposes.

2. Except as stated in item 3 below, the RCE should not send Form CA-1045 to an enumerator or field representative who is injured while on private property for the purpose of interviewing a resident. Also, the RCE should not refer the case to the designated third party Claims Examiner (DCE).

3. Only if the Bureau of the Census has determined that a deliberate act of a resident caused the injury should the RCE send a CA-1045 and refer the case to the DCE. If it appears to the RCE that a deliberate act of a resident was the proximate cause of the injury, illness or death, and the Bureau of the Census has not made such a determination, the RCE should contact the Bureau of the Census for clarification before taking any third party action.

4. Claims staff should continue to take third party actions on any claim filed by an enumerator or field representative which indicates a potential third party liability due to other activities within performance of duty. For instance, an enumerator traveling from one interview site to another may be involved in an automobile accident on a public street. Here, the provisions of 13 U.S.C. 9 and 13 U.S.C. 214 would not apply, and it would be proper to pursue the third party aspect of the claim.

Disposition: Retain until the indicated expiration date.

SHEILA M. WILLIAMS
Director for
Federal Employees' Compensation

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FECA BULLETIN NO. 98-09

Issue Date: June 5, 1998

Expiration Date: June 6, 1999

Subject: Performance of Duty--Alternative Worksites

Background: For some time now, federal agencies have experimented with programs which allow employees to work from locations other than the federal agency's premises. Such locations include "satellite" offices in outlying areas as well as individual employees' homes. The performance of duty issues with respect to "satellite" offices are straightforward, since these sites are in fact regular offices, though employees from a variety of agencies may work there. However, for employees working at home, performance of duty issues are less clear.

While OWCP has received very few claims from employees in such programs (sometimes called "telecommuting" or "flexiplace"), we anticipate more in the future due to the growth of such programs, and we need to ensure that such claims are handled uniformly in all district offices.

Purpose: To provide guidance for determining whether employees injured while working at alternative worksites meet the "performance of duty" criterion for coverage under the FECA

Applicability: Claims Examiners, Senior Claims Examiners, Supervisors, Rehabilitation Specialists, Staff Nurses, and Technical Assistants

Actions:

1. Employees who are directly engaged in performing the duties of their jobs are covered by the FECA, regardless of whether the work is performed on the agency's premises or at an alternative worksite. There is no statement (such as a "safety checklist") that can be signed by the employee to negate this coverage. As always, any affirmative defense of "willful misconduct" must be substantiated by evidence that the employee disobeyed an order that was routinely enforced.

2. However, when an employee is on property under his or her own control, activities which are not immediately directed toward the actual performance of regular duties do not arise out of employment. An employee who works at a desk at home removes himself or herself from the performance of regular duties as soon as he or she walks away from that desk to use the bathroom, get a cup of coffee, or seek fresh air. The "Personal Comfort Doctrine" does not apply, and coverage cannot be extended for injuries which result from such activities.

This point is illustrated by two actual cases:

a. An employee (who already used a wheelchair) was injured when he reached to answer the telephone while working at home. Coverage was found because he was required to answer the telephone as part of his official duties.

b. An employee was injured while walking downstairs at home to check her furnace, which was malfunctioning. Maintenance of the furnace was not a requirement of her official duties. Once she left her immediate work area, she removed herself from coverage under the FECA.

3. By extension of the rule described in item 2, a chronic illness that developed due to environmental exposure at home would not be covered under the FECA. The environment in an employee's home is not under the employer's control, and the "premises rule" that applies when an employee is on property owned or maintained by the employer is not relevant. The employee would be exposed to the home environment whether working for the government or not. Therefore, he or she would not be exposed to any risk inherent to employment while working at home.

4. Apart from alternative worksite programs, an employer may allow an employee who is recuperating from an illness to perform work at home. If the illness has resulted from a work-related injury, the work performed at home may be a light-duty job. The effect on workers' compensation benefits of returning to work at home is no different from that of returning to any other light-duty job. The employee is entitled to compensation for any loss of wage-earning capacity resulting from a compensable injury.

5. If an employee cannot continue to work at home because of injury-related residuals, he or she is entitled to compensation. This situation is no different from that of an employee who attempts to return to light duty on the employer's premises.

6. If an employee cannot continue to work at home because the home environment is not conducive to performance of his or her duties, the situation represents a withdrawal of light duty, since an employer cannot usually dictate an employee's home environment or require an employee to use personal resources to perform official duties.

7. If the employer can no longer provide the employee with work at home, the situation represents a withdrawal of light duty.

Disposition: Retain until the indicated expiration date.

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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FECA BULLETIN NO. 97-01

Issue Date: October 1, 1996

Expiration Date: September 30, 1997

Subject: Comp Pay--Direct Deposit

Background: On July 26, 1996 the Treasury Department published interim regulations stating that, in general, Federal agencies are to use electronic funds transfer (direct deposit) when making payments to beneficiaries who first become eligible for benefits after that date. The regulations also note that by January 1, 1999, all federal payments are to be made by electronic funds transfer. This provision would include beneficiaries who were receiving benefits before July 26, 1996.

While we intend to comply with this regulation, we do not believe that payments to claimants who have not signed up for direct deposit should be delayed to obtain such authorization. However, district office staffs should encourage claimants to sign up for direct deposit to receive all payments, whether on the daily or periodic roll. Forms CA-7 and CA-1049 will be modified to request this information.

In August, the National Office advised all check recipients on the periodic roll that direct deposit is available and asked them to adopt this method of receipt, and many beneficiaries did so.

In the near future, we will publish further guidance concerning the effect of this regulation on the bill pay process.

Purpose: To describe the OWCP's policy concerning electronic transfer of funds and the actions needed to implement it more widely

Applicability: Claims Examiners, Senior Claims Examiners, Technical Assistants, Staff Nurses, Rehabilitation Specialists, Fiscal Staff, and Supervisors

Action:

1. When setting up a payment, the Claims Examiner must use the direct deposit address whenever possible. The authorization may already appear in the file, or it may be newly submitted.

2. The forms which may be used to sign up for direct deposit are the Direct Deposit Sign-Up Form (SF-1199A) and the Fast Start Direct Deposit Form (FMS 2231). Either is acceptable, but Form SF-1199A is preferable because the financial institution completes the check routing information, and because this form makes no reference to allotments. Form SF-1199A can be ordered from GPO using stock number 7540-01-058-0224 and control number 1199-207.

Disposition: Retain until the indicated expiration date.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

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

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