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Division of Federal Employees' Compensation (DFEC)

FECA Circulars

Table of Contents

 


Fiscal Year 2013

FECA Circular No. 13-01

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 13-02

Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately-Owned Automobiles Necessary to Secure Medical Examination and Treatment

FECA Circular No. 13-03

Employees' Compensation and Management Portal (ECOMP)

FECA Circular No. 13-04

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 13-05

Offsets as the result of the receipt of lump-sum incentive payments made by the United States Postal Service

FECA Circular No. 13-06

Employees' Compensation and Management Portal (ECOMP) Agency Reviewer Imaging (ARi)

FECA Circular No. 13-07

Improper Document Submissions

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Fiscal Year 2012

FECA Circular No. 12-01

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 12-02

Agency Query System (AQS) Access for Agency Employees, Contractors and Inspector General Offices

FECA Circular No. 12-03

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 12-04

Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately-Owned Automobiles Necessary to Secure Medical Examination and Treatment

FECA Circular No. 12-05

Insurance Deductions

FECA Circular No. 12-06

Bill Payment Practices and Restrictions

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Fiscal Year 2011

FECA Circular No. 11-01

Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately Owned Automobiles Necessary to Secure Medical Examination and Treatment

FECA Circular No. 11-02

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 11-03

Current Interest Rates for Prompt Payment Bills and Debt Collection

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Fiscal Year 2010

FECA Circular No. 10-01

Guidance for claims filed as a result of the 2010 Decennial Census

FECA Circular No. 10-02

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 10-03

Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately Owned Automobiles Necessary to Secure Medical Examination and Treatment

FECA Circular No. 10-04

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 10-05

Early disability management in 2010 Decennial Census claims

FECA Circular No. 10-06

Overpayments in cases where lesser impairment is established after a schedule award has been paid for greater impairment

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Fiscal Year 2009

FECA Circular No. 09-01

Current Interest Rates for Prompt Payment Bills and Debt Collect

FECA Circular No. 09-02

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 09-03

Fees for Representatives' Services - Contingency Fees

FECA Circular No. 09-04

Health Benefits Insurance and Life Insurance - General Guidance

FECA Circular No. 09-05

Release of Documents from Federal Employees' Compensation (FECA) Files

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Fiscal Year 2008

FECA Circular No. 08-01

Debt Collection – Classification of Aged Delinquent Debts as Currently Not Collectable (CNC)

FECA Circular No. 08-02

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 08-03

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 08-04

DFEC Protocol Statement- OIG Audits, Evaluations, And Investigations

FECA Circular No. 08-05

Current Interest Rates for Prompt Payment Bills and Debt Collection

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Fiscal Year 2007

FECA Circular No. 07-01

Dual Benefits - FERS

FECA Circular No. 07-02

Current Interest Rates for Prompt Payment Bills and Debt Collection

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Fiscal Year 2006

FECA Circular No. 06-01

Dual Benefits - FERS Cost of Living Adjustments

FECA Circular No. 06-02

Fiscal - Current Interest Rates for Prompt Payment Bills And Debt Collection

FECA Circular No. 06-03

Loss of Wage Earning Capacity Calculations Under Performance Based Alternative Pay Systems

FECA Circular No. 06-04

Case Management and Coding of Beryllium Claims

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Fiscal Year 2005

FECA Circular No. 05-01

Dual Benefits - FERS COLA

FECA Circular No. 05-02

Fiscal - Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 05-03

Adjudication of Claims - Claims Related to Beryllium Exposure

FECA Circular No. 05-04

Bill Pay – Revised Form CA-16

FECA Circular No. 05-05

Due Process - Revised Appeal Rights

FECA Circular No. 05-06

Imaged FECA Cases to Be Provided in Portable Document Format (PDF) on CD-ROM

FECA Circular No. 05-07

Dual Benefits - FERS

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Fiscal Year 2004

FECA Circular No. 04-01

Forms - Electronic Submission

FECA Circular No. 04-02

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 04-03

DUAL BENEFITS - FERS COLA

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Fiscal Year 2003

FECA Circular No. 03-01

DUAL BENEFITS - FERS COLA

FECA Circular No. 03-02

SELECTED ECAB DECISIONS FOR JANUARY – MARCH, 2002

FECA Circular No. 03-03

SELECTED ECAB DECISIONS FOR JULY - SEPTEMBER, 2001

FECA Circular No. 03-04

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 03-05

SELECTED ECAB DECISIONS FOR OCTOBER – DECEMBER, 2001

FECA Circular No. 03-07

Forms – Appeal Rights

FECA Circular No. 03-08

Forms Correspondence - Deletion of Letters

FECA Circular No. 03-09

Selected ECAB Decisions for July - September, 2002

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Fiscal Year 2002

FECA Circular No. 02-01

DUAL BENEFITS - FERS COLA

FECA Circular No. 02-02

FECA Circular 02-02 (not published)

FECA Circular No. 02-03

SELECTED ECAB DECISIONS FOR OCTOBER – DECEMBER, 2000

FECA Circular No. 02-04

SUBJECT: SELECTED ECAB DECISIONS FOR JANUARY - MARCH, 2001

FECA Circular No. 02-05

SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE, 2001

FECA Circular No. 02-06

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 02-07

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 02-08

Statement of Accepted Facts (SOAF)

FECA Circular No. 02-09

Code changes for the Departments of the Air Force, Army, Defense, Health and Human Services, Navy, State, Treasury, and Veterans Affairs, and Other Establishments, Case Management Users' Manual, Appendix 4-7

FECA Circular No. 02-10

Code changes for the Departments of Labor, Transportation, and Veterans Affairs, Case Management Users' Manual, Appendix 4-7

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Fiscal Year 2001

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

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Fiscal Year 2000

FECA Circular No. 00-01

Folio VIEWS Job Aid

FECA Circular No. 00-02

Representative Fee Petitions (12/99A)

FECA Circular No. 00-03

Dual Benefits – FERS COLA (11/99B)

FECA Circular No. 00-04

Selected ECAB Decisions for April - June, 1999 (11/99B)

FECA Circular No. 00-06

Current Interest Rates for Prompt Payment Bills and Debt Collection (02/00A)

FECA Circular No. 00-07

Code changes for the Departments of the Army, Defense, Labor, State, Transportation, and Veterans Affairs, and the U.S. Postal Service and Other Establishments, Case Management Users' Manual, Appendix 4-7 (03/00A)

FECA Circular No. 00-08

Referee Evaluations--Claims of Bias (03/00B)

FECA Circular No. 00-09

Compensation Payments--2000 Census (04/00A)

FECA Circular No. 00-10

Selected ECAB desisions for July - September 1999

FECA Circular No. 00-11

Selected ECAB desisions for October - December, 1999

FECA Circular No. 00-12

Current Interest Rates for Prompt Payment Bills and Debt Collection (08/00B)

FECA Circular No. 00-13

Dual Benefits – Authorization and Earnings Information from Social Security Administration (09/00A)

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Fiscal Year 1999

FECA Circular No. 99-01

Reconsiderations - Correct Appeal Rights (10/98B)

FECA Circular No. 99-02

Dual Benefits - FERS COLA (11/98B)

FECA Circular No. 99-03

Loss of Wage Earning Capacity - USPS and Reassignment to Part Time Flexible Positions (11/98B)

FECA Circular No. 99-04

New Regulations Governing Claims under the FECA (01/99A)

FECA Circular No. 99-05

Selected ECAB Decisions for April - June, 1997 (01/99B)

FECA Circular No. 99-06

Selected ECAB Decisions for July - September, 1997 (01/99B)

FECA Circular No. 99-07

Code changes for the Departments of the Air Force, Army, Defense, Transportation, Treasury, and Veterans Affairs, and the U.S. Postal Service and the Federal Judiciary, Case Management Users' Manual, Appendix 4-7 (01/99A)

FECA Circular No. 99-08

Current Interest Rates for Prompt Payment Bills and Debt Collection (02/99A)

FECA Circular No. 99-09

Selected ECAB Decisions for January-March, 1998 (04/99A)

FECA Circular No. 99-10

Seclected ECAB Decisions for April-June, 1998 (04/99A)

FECA Circular No. 99-11

Selected ECAB Decisions for July-September, 1998 (04/99B)

FECA Circular No. 99-12

Revised CA-7 (04/99B)

FECA Circular No. 99-13

Current Interest Rates for Prompt Payment Bills and Debt Collection (08/99A)

FECA Circular No. 99-14

Loss of Wage Earning Capacity--Actual Earnings from Temporary Positions (08/99B)

FECA Circular No. 99-15

Selected ECAB Decisions for October - December 1998 (09/99A)

FECA Circular No. 99-16

Revised Form CA-1 (09/99A)

FECA Circular No. 99-17

Selected ECAB Decisions for January - March, 1999 (09/99A)

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Fiscal Year 1998

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)

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Fiscal Year 1997

FECA Circular No. 97-01

ADP--Access to OWCP Material on the World Wide Web

FECA Circular No. 97-02

Cost of Living Increase to SSA Benefits in FERS Cases

FECA Circular No. 97-03

Selected ECAB Decisions for July - September, 1996

FECA Circular No. 97-04

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 97-05

Code Changes (0297A)

FECA Circular No. 97-06

Bill Pay--OWCP Liability for Sales Taxes - (0797B)

FECA Circular No. 97-07

Current Interest Rates for Prompt Payment Bills and Debt Collection-(0797B)

FECA Circular No. 97-08

Comp Pay--ACPS Reports (07/97A)

FECA Circular No. 97-09

Revised Forms OWCP-5a, OWCP-5b, OWCP-5c(August 25, 1997)

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Fiscal Year 1996

FECA Circular No. 96-01

Selected ECAB Decisions for April Through June 1995

FECA Circular No. 96-02

Increases in the Reimbursement Rate for OWCP Contract Field Nurses

FECA Circular No. 96-03

Current Interest Rates for Prompt Payment Bills and Debt Collection

FECA Circular No. 96-04

Selected ECAB Decisions for October - December 1995

FECA Circular No. 96-05

Selected ECAB Decisions for July - September 1995

FECA Circular No. 96-06

Current Interest Rates for Prompt Payment Bills

FECA Circular No. 96-07

Computation of Compensation for Rural Letter Carriers (09/96A)

FECA Circular No. 96-08

Selected ECAB Decisions for April - June 1996 (09/96B)


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FECA CIRCULAR NO. 13-01

November 27, 2012


SUBJECT: Dual Benefits - FERS Cost of Living Adjustments


Effective December 31, 2012, benefits issued by the Social Security Administration (SSA) will be increased by 1.7%. This requires the amount of the Federal Employees' Retirement System (FERS) Dual Benefits deduction to be increased by the same amount, to ensure the dollar-for-dollar offset remains current.

This adjustment will be made from the National Office for all cases that were correctly entered into the iFECS Compensation program. The adjustment will be effective with the periodic roll cycle beginning December 16, 2012. There will be no adjustment or overpayment declared for the period of December 1, 2012 through December 15, 2012.

The historical SSA cost of living adjustments are as follows:

12/01/2012 - 11/30/2013
12/01/2011 - 11/30/2012
12/01/2010 - 11/30/2011
12/01/2009 - 11/30/2010
12/01/2008 - 11/30/2009
12/01/2007 - 11/30/2008
12/01/2006 - 11/30/2007
12/01/2005 - 11/30/2006
12/01/2004 - 11/30/2005
12/01/2003 - 11/30/2004
12/01/2002 - 11/30/2003
12/01/2001 - 11/30/2002
12/01/2000 - 11/30/2001
12/01/1999 - 11/30/2000
12/01/1998 - 11/30/1999
12/01/1997 - 11/30/1998
12/01/1996 - 11/30/1997
12/01/1995 - 11/30/1996
12/01/1994 - 11/30/1995

1.7%
3.6%
0.0%
0.0%
5.8%
2.3%
3.3%
4.1%
2.7%
2.1%
1.4%
2.6%
3.5%
2.4%
1.3%
2.1%
2.9%
2.6%
2.8%

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: All Claims Staff and Fiscal Personnel

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FECA CIRCULAR NO. 13-02

Issue Date: February 14, 2013

 


Expiration Date: Date of Next Rate Change


Subject: Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately-Owned Automobiles Necessary to Secure Medical Examination and Treatment.

Background: Effective January 1, 2013, the mileage rate for reimbursement to Federal employees traveling by privately-owned automobile was increased to 56.5 cents per mile by GSA. No restriction is made as to the number of miles that can be traveled. As in the past, a determination has been made to apply the applicable rate to disabled FECA beneficiaries traveling to secure necessary medical examination and treatment.

Applicability: Appropriate National Office and District Office personnel.

Reference: Chapter 5-0204, Principles of Bill Adjudication, Part 5, Benefit Payments, Federal (FECA) Procedure Manual and 5 U.S.C. § 8103.

Action: The Central Bill Pay (CBP) facility has updated its system to reflect the new rates. Since there is no action required at the District Office level, the rates are being provided for informational purposes only.

The following is a list of the historical mileage rates used to reimburse claimant travel expense:

01/01/1995 – 06/06/1996
06/07/1996 – 09/07/1998
09/08/1998 – 03/31/1999
04/01/1999 – 01/13/2000

30.0 cents per mile
31.0 cents per mile
32.5 cents per mile
31.0 cents per mile

01/14/2000 – 01/21/2001
01/22/2001 – 01/20/2002
01/21/2002 – 12/31/2002
01/01/2003 – 12/31/2003
01/01/2004 – 02/03/2005
02/04/2005 – 08/31/2005
09/01/2005 – 12/31/2005

32.5 cents per mile
34.5 cents per mile
36.5 cents per mile
36.0 cents per mile
37.5 cents per mile
40.5 cents per mile
48.5 cents per mile

01/01/2006 – 01/31/2007
02/01/2007 – 03/18/2008
03/19/2008 – 07/31/2008
08/01/2008 – 12/31/2008
01/01/2009 – 12/31/2009
01/01/2010 – 12/31/2010
01/01/2011 – 04/16/2012
04/17/2012 – 12/31/2012
01/01/2013 to Present

44.5 cents per mile
48.5 cents per mile
50.5 cents per mile
58.5 cents per mile
55.0 cents per mile
50.0 cents per mile
51.0 cents per mile
55.5 cents per mile
56.5 cents per mile

Disposition: This Bulletin should be retained in Chapter 5-0204, Principles of Bill Adjudication, Federal (FECA) Procedure Manual.

 

Douglas Fitzgerald
Director for
Federal Employees' Compensation

 

Distribution: All Claims Staff and Fiscal Personnel

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FECA CIRCULAR NO. 13-03

February 14, 2013


SUBJECT: Employees' Compensation and Management Portal (ECOMP)

PURPOSE: To announce the Office of Workers' Compensation Programs' (OWCP) web-based portal for the electronic submission of Federal Employees' Compensation Act (FECA) claim forms and case related documents.

BACKGROUND: The OWCP completed a comprehensive update of the FECA regulations in 20 C.F.R. Part 10, effective August 29, 2011. 20 CFR §§ 10.100, 10.101, 10.102 and 10.103 (Claims for traumatic injury, occupational disease, wage loss compensation, and schedule awards respectively) direct that all such notices should be submitted electronically wherever feasible to facilitate processing of such claims. Each of these regulations also explicitly requires that, "All employers that currently do not have such capability should create such a method by December 31, 2012."

To facilitate electronic form filing, the OWCP has created its own web-based application (ECOMP), with a comprehensive electronic system for recording workplace injuries and illnesses, and processing claims under the FECA. ECOMP is available to all federal agencies who wish to use it for electronic form filing free of charge.

ECOMP, which was released to the public on November 2, 2011, can be accessed directly at the following url: https://www.ecomp.dol.gov. The site currently contains two different types of functionality – electronic submission of documents and electronic submission of FECA claim forms.

1. Web-Enabled Electronic Document Submission (WEEDS). At the time of initial release, the only available component was the electronic submission of documents. This component, WEEDS, enables all stakeholders to upload documents directly into a FECA case file. Utilizing WEEDS provides numerous important advantages: a) the document is viewable in the OWCP case file by the Claims Examiner usually within 4 hours of submission - thus the time it takes for documents to travel via mail or fax is eliminated; b) ECOMP provides a Document Control Number (DCN) when a document is uploaded so the user can track when it has been uploaded into the case file; and c) upon receipt of a claim number for a new injury, documents can be uploaded into the claim record right away rather than mailing or faxing them, which can facilitate and speed processing and adjudication of claims.

2. Electronic Form Filing. On February 27, 2012, the second component of ECOMP was made available. This component allows injured workers (employed by an enrolled federal agency) to electronically file specified FECA claim forms. Some employing agencies already provide an electronic means for form submission, and the OWCP will continue to accept forms submitted via those existing, currently approved employing agency electronic submission platforms.

ACTIONS:

A. Web-Enabled Electronic Document Submission (WEEDS)

1. This feature enables all stakeholders to upload documents directly into a FECA case file. Stakeholders include, but are not limited to, injured workers (and their representatives), employing agencies, contract field nurses and rehabilitation counselors, and medical providers. Many of the letters used by the Division of Federal Employees' Compensation (DFEC) contain language referencing this option for document submission.

2. A user does not have to register or enroll with ECOMP to use this feature. Rather, any stakeholder with an internet connection and specific information about a FECA claim can upload documents directly into the case file. Before attempting to upload documents via ECOMP, a user needs to have the following pieces of information: claim number, claimant's last name, claimant's date of birth, and the date of injury. If these pieces of information do not match the OWCP case data exactly, submission of a document is not allowed.

3. Once a document has been uploaded to the case file, ECOMP can only be used to verify that the OWCP received the document, not when or if a response has been provided. Any stakeholder having a question about a document that has been submitted must contact the servicing District Office.

4. Some specific documents should NOT be uploaded through the WEEDS component of ECOMP. The ECOMP interface and associated documentation clearly note these exceptions, which include the following:

a)

CA-1 (Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation)
CA-2 (Notice of Occupational Disease and Claim for Compensation)
CA-7 (Claim for Compensation)

These forms should all be sent to DFEC's Consolidated Case Create Facility (US Department of Labor, OWCP/DFEC, 400 West Bay Street, Room 827, Jacksonville, FL 32202), if not electronically filed through ECOMP (see next section) or other approved electronic forms submission platforms.

b)

CA-16 (Authorization for Examination and/or Treatment)
CA-2a (Notice of Recurrence)
CA-5 (Claim for Compensation by Widow, Widower, and/or Children)

These forms should be sent to the DFEC Consolidated Case Create Facility.

c)

OWCP-915 (Claim for Medical Reimbursement)
OWCP-957 (Medical Travel Refund Request)

These forms should be submitted to the DFEC's central mailroom (US Department of Labor, OWCP/DFEC, PO Box 8300, London, KY 40742-8300).

d)

Medical bills and requests for authorization of medical procedures from medical providers

These should be submitted through the OWCP's Central Billing and Authorization Facility (see the DFEC website for more information).

e)

Appellate requests for the Branch of Hearings and Review and the Employees' Compensation Appeals Board

Each should be sent to the specific address outlined in the appeal rights that accompany any formal decision.

B. Electronic Submission of Claims Forms

1. Employing Agency Enrollment

a)

Unlike the WEEDS feature for electronic document submission, registration and enrollment is required before claim forms can be electronically filed.

b)

An employing agency must enroll through the OWCP/DFEC. Once the agency is enrolled in ECOMP, an injured worker can register and create an account in order to file a claim. When creating an account, the injured worker selects his/her agency from a drop-down menu during the registration process. All federal agencies are listed in the drop-down menu but remain inactive until such time that an agency is enrolled.

c)

In order to enroll in ECOMP, each agency must sign a Memorandum of Understanding (MOU). The MOU is a template that sets forth the expectations and responsibilities of the agency with respect to the sharing and transmittal of data via ECOMP. The MOU is signed by the employing agency's Designated Approval Authority (DAA), and then countersigned by the OWCP's DAA.

d)

Once the MOU has been signed by both the employing agency and the OWCP, the agency designates its Agency Maintenance User (AMU) for ECOMP. This AMU then works directly with the OWCP to implement the agency's structure into the ECOMP platform. This structure includes a breakdown by Department, Agency-Group, Agency, Division and Duty Station. Specificity down to the Duty Station level is used so that the injured worker can more easily identify his/her workplace when filing a claim, and the appropriate charge back code can be associated with the claim.

e)

After verifying the agency's structure in ECOMP, the employing agency must then decide whether to allow submission of all forms or only certain forms. An agency may limit ECOMP form submission to new injury claims only (CA-1, Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, and CA-2, Notice of Occupational Disease and Claim for Compensation), or to compensation claims only (CA-7, Claim for Compensation), or allow submission of all form types. This decision is entirely the employing agency's decision. If an agency chooses to limit submission by form type, the injured worker will be so notified if he/she attempts to file a claim form via ECOMP that is not currently permitted by the employing agency.

f)

For more information on enrolling in ECOMP, agencies may contact the DFEC's Branch of Technical Assistance.

2. Injured Worker (Claimant) Registration

a)

When the injured worker registers and creates an account with ECOMP, he/she must identify the employing agency as noted above.

b)

A new user must enter his/her Social Security Number (SSN) as part of the account creation process. When filing any claim form, the user must enter his/her SSN, which will be verified against the account information. If the information does not match, the user will be unable to file a claim. Also, when filing a CA-7, the SSN entered must match the SSN associated with the existing OWCP case file in order to proceed.

c)

The claimant must provide an email address that is to be used for communication from the ECOMP system. Note that ECOMP will not generate any email to an injured worker or agency user that contains sensitive Personally Identifiable Information (PII). Instead, ECOMP primarily uses the individual's initials, employing agency name, and the ECOMP Control Number (ECN) to identify the form in question. As explained below, this system may not be used by injured workers or agencies to communicate by email.

d)

The claimant must also provide answers to security questions to help safeguard the usage of the account.

3. Reporting an Injury or Illness

a)

The OSHA Form 301, Injury and Illness Incident Report, is completed by agencies when a recordable work-related injury or illness has occurred. This form helps the employer and OSHA develop a picture of the extent and severity of work-related incidents.

b)

For new injury claims, some agencies may require the injured worker to first file an OSHA Form 301 before filing a FECA form, while others may not. This is an employing agency decision, and ECOMP supports both options. The injured worker will be led through the process, step by step, regardless of the requirement selected by the agency. If an OSHA Form 301 is not required by a particular agency, the process begins with a CA-1 or CA-2 form – see Item 4 below.

c)

If required, the OSHA-301 is electronically routed to the Supervisor (based on the Supervisor's email address input by the user) and on to the agency's designated OSHA Record Keeper. It is then stored in the ECOMP database. The data can then be used to produce an OSHA-300, Log of Work-Related Injuries and Illnesses, and/or form OSHA-300A, Summary of Work-Related Injuries and Illnesses.

d)

Note that a contractor who is employed by an agency can also file an OSHA-301, but will not file a corresponding FECA claim form. (In the vast majority of situations, such contractors will not be considered employees for FECA purposes and may be covered under state workers' compensation law.)

4. Claims for Traumatic Injury and Occupational Disease

a)

Usually, the first step for a Federal employee who has sustained an injury or occupational disease is to file a CA-1 or CA-2 form. As noted above in Item 3, some agencies first require the completion of an OSHA Form 301. If an OSHA Form 301 is completed, some of the pertinent information will be pre-populated in the CA-1 or CA-2 form based upon the information input by the injured worker on the OSHA Form 301. However, the information can always be edited and/or updated by the injured worker when filing the FECA claim.

b)

The data required by ECOMP is the same as the data requested on the existing CA-1 and 2 forms; ECOMP only guides the user through the form's completion. The form is then electronically routed to the employee's supervisor (based on the Supervisor's email address input by the user), and then on to the agency's designated Agency Reviewer (usually an injury compensation or human resources specialist). Once completed, the form is then forwarded to the OWCP for case creation. See Item 6 below for signature requirements.

» If, however, the injury was designated as a First Aid or No Lost Time/No Medical Expense injury, it is stored in the ECOMP database unless or until it is reactivated by the Agency Reviewer.

c)

When initiating the claim, the injured worker can upload documents pertaining to that claim for submission to the OWCP, e.g. medical reports, witness statements, etc. Likewise, the supervisor and the Agency Reviewer can also upload pertinent documents. When the claim is submitted to the OWCP, the uploaded documents travel with the claim to the OWCP.

d)

As the form moves through the various review stages and is submitted to the OWCP, the injured worker and employing agency receive emails pertaining to that form each time it moves and/or the review status changes. When it is submitted to the OWCP and a case number is assigned, the injured worker receives one final email with the assigned case number. There is no further communication via ECOMP after the claim has been submitted and the case has been created.

e)

Once a case has been created by the OWCP, ECOMP no longer tracks the status of that case. ECOMP can only be used to submit the claim form to the OWCP. If the injured worker or employing agency has any questions about the claim after it has been assigned a case number, he/she must contact the servicing District Office in writing by either uploading a letter into ECOMP using the WEEDS application or mailing a printed letter using the U.S. Postal Service, or by phone. For certain "self-help" inquiries, certain stakeholders may use one of the following web-based options:

» The injured worker can view his/her case and compensation claim status, billing updates (including reimbursements), coverage limitations, and other information via the Claimant Query System (CQS) by clicking on the word "Claimant" next to the FECA photo online at: http://owcp.dol.acs-inc.com.

» Employing agencies can use the Agency Query System (AQS), a secure internet site that provides access to similar information for authorized personnel from federal agencies. There is a link to the AQS site on the ECOMP home page.

5. Claims for Wage Loss and Schedule Award

a)

CA-7 forms for wage loss or schedule award are submitted in a similar manner. Like the CA-1 and CA-2, the data required by ECOMP is the same as the data requested on the existing CA-7 form; ECOMP only guides the user through the form's completion. The form is then electronically routed to the employee's supervisor (based on the Supervisor's email address input by the user) and then on to the Agency Reviewer. Once completed, the form is then forwarded on to the OWCP.

b)

CA-7 forms can be filed for all injuries, including new injury claims filed through ECOMP and any existing claims previously filed with the OWCP using other approved forms filing methods. In order to file a CA-7 for an existing OWCP case, the user will need to have the following pieces of information: claim number, claimant's last name, claimant's date of birth, and the date of injury. If these pieces of information do not match the OWCP case data exactly, electronic submission of a CA-7 is not allowed. The user must also input his/her SSN, which must match the SSN of the case for which the form is being filed.

c)

When initiating the CA-7, the injured worker can upload documents pertaining to that claim for submission to the OWCP, e.g. supporting medical documentation. Likewise, the supervisor and the Agency Reviewer can also upload pertinent documents. When the claim is submitted to the OWCP, the uploaded documents travel with the claim to the OWCP. Form CA-7a (Time Analysis Form) can also be submitted through ECOMP when a CA-7 is filed by the injured worker.

d)

As the CA-7 moves through the various review stages within ECOMP, the injured worker and employing agency receive emails pertaining to that form each time it moves and/or the review status changes. When the form is submitted to the OWCP, the injured worker receives one final email indicating that the form has been received. There is no further communication via ECOMP after the claim has been received by the OWCP.

e)

Once the CA-7 has been received by the OWCP, ECOMP no longer tracks the status of that form. ECOMP can only be used to submit the claim form to the OWCP. If the injured worker or employing agency has any questions about the claim after it has been received by the OWCP, he/she must contact the servicing District Office or use one of the electronic methods outlined in 4e, above.

6. Signatures on Claim Forms

a)

Since these claim forms are submitted electronically, they will not bear an actual signature from the injured worker or the Supervisor. As required by the OWCP and explicitly set forth in the MOU, however, the employing agency must retain signed hard copies.

b)

The MOU provides that, "To the extent that any forms containing the signature of an employee are submitted electronically, including, but not limited to, Form CA-1, CA-2, CA-7, CA-7a, [AGENCY NAME] agrees that it will retain the original form(s) submitted by the employee, bearing original signatures, and make such forms available for inspection by the DFEC. Although the signed copies of such forms are physically maintained by the employing agency, they remain covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1."

c)

DFEC claims staff will be able to ascertain whether a claim form was submitted via ECOMP by checking the marking on the top right corner of the form. If the claim has been submitted via ECOMP, a black box will appear showing the ECOMP Control Number and the email address/user name of the various individuals who initiated and reviewed the form (e.g. injured worker, supervisor and Agency Reviewer).

d)

If a designated Agency Reviewer submits a claim on behalf of an employee, his/her name will appear in the signature block on the claim form.

7. Training and Assistance

a)

Training modules and videos for the various filing functions are available on the ECOMP site. These include specific instructions for how to file the various forms as an injured worker, how to review the forms as a Supervisor, and how to review the forms as an OSHA Record Keeper or Agency Reviewer. These training modules are available on the ECOMP site to any user, whether registered with ECOMP or not.

b)

Once an employing agency signs the required MOU, the DFEC's Branch of Technical Assistance will provide training for designated agency officials, as needed, on the use of ECOMP.

8. Time Requirements for Claims Submission

Reminder: The OWCP's regulations prescribe employing agency time limitations for the submission of claims for traumatic injury and occupational disease, as well as claims for compensation. ECOMP has several features that allow an employing agency to actively manage the timely submission of claim forms, including automatic and manual reminders for the supervisor and Agency Reviewer.

a)

Claims for traumatic injury and occupational disease should be filed no more than 10 working days after receipt of the notice from the employee. See 20 CFR § 10.110.

b)

Claims for compensation due to disability or permanent impairment should be filed no more than 5 working days after receipt from the employee. See 20 CFR § 10.111.

 

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Distribution: All DFEC Staff; Employing Agencies

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FECA CIRCULAR NO. 13-04

March 21, 2013

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


The interest rate to be assessed for the prompt payment bills is 1.375 percent for the period of January 1, 2013 through December 31, 2013. This new rate has been updated in the Central Bill Payment system tables.

The rate for assessing interest charges on debts due the government has not been changed. The interest rate for assessing interest charges on debts due the government remains 1.0 percent for the period of January 1, 2013 through December 31, 2013.

Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rate will be reviewed on July 1, 2013 to determine if the Treasury has changed the rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

 

Attachments

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

FC 13-04 EXHIBIT 1 –

PROMPT PAYMENT INTEREST RATES

01/1/13 - 12/31/13
07/1/12 - 12/31/12
01/1/12 - 06/30/12
07/1/11 - 12/31/11
01/1/11 - 12/31/11
01/1/10 - 12/31/10
07/1/09 - 12/31/09
01/1/09 - 06/30/09
07/1/08 - 12/31/08
01/1/08 - 06/30/08
07/1/07 - 12/31/07
01/1/07 - 06/30/07
07/1/06 - 12/31/06
01/1/06 - 06/30/06
07/1/05 - 12/31/05
01/1/05 - 06/30/05
07/1/04 - 12/31/04
01/1/04 - 06/30/04
07/1/03 - 12/31/03
01/1/03 - 06/30/03
07/1/02 - 12/31/02
01/1/02 - 06/30/02
07/1/01 - 12/31/01
01/1/01 - 06/30/01
07/1/00 - 12/31/00
01/1/00 - 06/30/00
07/1/99 - 12/31/99
01/1/99 - 06/30/99

1 ⅜ %
1 ¾ %
2.0 %
2 ½ %
2 ⅝ %
3 ¼ %
4 ⅞ %
5 ⅝ %
5 ⅛ %
4 ¾ %
5 ¾ %
5 ¼ %
5 ¾ %
5 ⅛ %
4 ½ %
4 ¼ %
4 ½ %
4.0 %
3 ⅛ %
4 ¼ %
5 ¼ %
5 ½ %
5 ⅞ %
6 ⅜ %
7 ¼ %
6 ¾ %
6 ½ %
5.0 %

07/1/98 - 12/31/98
01/1/98 - 06/30/98
07/1/97 - 12/31/97
01/1/97 - 06/30/97
07/1/96 - 12/31/96
01/1/96 - 06/30/96
07/1/95 - 12/31/95
01/1/95 - 06/30/95
07/1/94 - 12/31/94
01/1/94 - 06/30/94
07/1/93 - 12/31/93
01/1/93 - 06/30/93
07/1/92 - 12/31/92
01/1/92 - 06/30/92
07/1/91 - 12/31/91
01/1/91 - 06/30/91
07/1/90 - 12/31/90
01/1/90 - 06/30/90
07/1/89 - 12/31/89
01/1/89 - 06/30/89
07/1/88 - 12/31/88
01/1/88 - 06/30/88
07/1/87 - 12/31/87
01/1/87 - 06/30/87
07/1/86 - 12/31/86
01/1/86 - 06/30/86
07/1/85 - 12/31/85
01/1/85 - 06/30/85

6.0 %
6 ¼ %
6 ¾ %
6 ⅜ %
7.0 %
5 ⅞ %
6 ⅜ %
8 ⅛ %
7.0 %
5 ½ %
5 ⅝ %
6 ½ %
7.0 %
6 ⅞ %
8 ½ %
8 ⅜ %
9.0 %
8 ½ %
9 ⅛ %
9 ¾ %
9 ¼ %
9 ⅜ %
8 ⅞ %
7 ⅝ %
8 ½ %
9 ¾ %
10 ⅜ %
12 ⅛ %

Prior to 01/01/85 Not Applicable

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FC 13-04 EXHIBIT 2 –

DEBT MANAGEMENT INTEREST RATES

01/1/13 - 12/31/13

1%

01/1/12 - 12/31/12

1%

01/1/11 - 12/31/11

1%

1/1/10 – 12/31/10

1%

 

 

1/1/09 - 12/31/09

3%

7/1/08 - 12/31/08

3%

1/1/08 - 6/30/08

5%

1/1/07 - 12/31/07

4%

7/1/06 - 12/31/06

4%

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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 01/01/84

Not applicable

 

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FECA CIRCULAR 13-05

April 10, 2013

SUBJECT: Offsets as the result of the receipt of lump-sum incentive payments made by the United States Postal Service


PURPOSE: This circular is being issued to provide supplemental guidance on the necessary claims actions when a claimant in receipt of disability compensation receives a lump-sum incentive payment from the United States Postal Service (USPS) as the result of (1) choosing optional retirement pursuant to a Voluntary Early Retirement Authority (VERA), or (2) voluntarily resigning.

BACKGROUND: Certain eligible full-time employees of the USPS who voluntarily elected to retire or resign by December 2012 qualified for a $15,000 lump-sum incentive, with $10,000 to be paid on or about May 24, 2013, and $5,000 to be paid on or about May 23, 2014. Part-time employees were also eligible for the incentive, with the amount to be prorated based upon hours worked.

An offset is required only where the claimant receives an incentive payment when in receipt of (or eligible to receive) compensation for temporary total disability (TTD). No offset is required when the claimant is in receipt of compensation for loss of wage-earning capacity (LWEC), schedule award, etc.

ACTIONS: Upon receipt of documentation (e.g. personnel action form or other documentation from the USPS) that a claimant in receipt of compensation for TTD has received a separation incentive payment, the claims examiner (CE) should take the following steps:

(1) Review PM 2-1000.17 with respect to separation pay. For purposes of this offset, TTD compensation should be suspended effective the date of each lump-sum incentive payment.

(2) Determine the claimant's weekly salary at the time of separation.

(3) Divide the amount of the incentive payment by the weekly salary amount.

(4) The resulting number is the number of weeks that the claimant is not entitled to compensation. If the resulting number is a decimal, use the following to calculate the number of days equivalent to the decimal.

.1

=

1 day

.6

=

4 days

.2

=

1 day

.7

=

5 days

.3

=

2 days

.8

=

6 days

.4

=

3 days

.9

=

6 days

.5

=

4 days


(5) Determine the correct time period (weeks plus days) that the claimant is not entitled to compensation.

(6) Complete a memo for the file outlining the offset calculation and period.

(7) Terminate compensation effective the date of the incentive payment. Send the claimant a letter outlining the period of ineligibility for FECA benefits. This letter should advise the claimant to submit a Form CA-7 at the expiration of the period if he/she wishes to resume FECA benefits in an effort to verify employment status and payment eligibility to avoid improper payments.

8) If a CA-7 is received at the end of the period (and the claimant is not working or in receipt of retirement benefits), the claimant should be placed back on the periodic roll as long as new medical evidence has not been received in the interim period indicating that the claimant's condition has resolved or he/she can return to full duty.

• If the claimant is in receipt of retirement benefits, an election of benefits is required, and compensation should not be paid until OPM confirms annuity payments have stopped.

(9) If TTD compensation resumes at the expiration of the offset period, send the claimant a CA-1049. In the first payment, HB/LI deductions should be made retroactive to the date compensation was suspended (if applicable and if not made by OPM). This should be explained in the CA-1049.

(10) Set a reminder for early May, 2014 to check the case to ascertain whether the second incentive payment is still scheduled to be made on May 23, 2014 as planned so that appropriate actions can be taken.

Note - A claimant, if eligible, may elect to receive benefits from OPM on or before the date of the incentive payment. Such an election should be processed consistent with established procedure.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation


 

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

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FECA CIRCULAR NO. 13-06

May 13, 2013


Subject: Employees' Compensation and Management Portal (ECOMP) Agency Reviewer Imaging (ARi)


PURPOSE: To announce a new component of ECOMP that allows Agency Reviewers to securely view documents in the Office of Workers' Compensation (OWCP) case file concerning claims under the Federal Employees' Compensation Act (FECA).

BACKGROUND: ECOMP was released to the public on November 2, 2011 and can be accessed directly at the following url: https://www.ecomp.dol.gov. The site originally contained two different types of functionality – electronic submission of documents and electronic submission of Federal Employees' Compensation Act (FECA) claim forms. See FECA Circular 13-03, Employees' Compensation and Management Portal (ECOMP), for more detail on those features.

Effective April 9, 2013, ECOMP was enhanced to create a third functionality to allow designated ECOMP Agency Reviewers (AR) the ability to view imaged documents for cases assigned to their agency. The new functionality is called Agency Reviewer Imaging (ARi). Initially, only a few specific agencies were granted such access; however, after this initial deployment phase, ARi access will be provided to other enrolled agencies on a rolling basis.

Employing Agencies can currently review/obtain case file documents, but must do so by other means, such as submitting a written request to the OWCP or by visiting the district office and reviewing/printing documents on a kiosk. Deployment of ARi allows the OWCP and Employing Agencies to contain costs and increase program efficiencies by providing ARs access to the case documents without generation and submission of a written request or scheduling a visit with the district office, and by eliminating the time and expense it takes the OWCP to respond to such requests. Allowing the ARs to view case file documents also facilitates better Employing Agency collaboration with the OWCP in regard to disability management and return-to-work efforts. For example, the Employing Agency can view work restrictions in a case and craft a job offer for the injured worker without first making a request to the OWCP for such medical evidence and waiting for the OWCP's response. This allows the injured workers to return to work as soon as possible, which furthers the OWCP's mission to facilitate reemployment of injured workers who are able to work.

STATUTORY AND REGULATORY PROVISIONS: FECA claim file information is covered by the Privacy Act of 1974. See 5 U.S.C. 552a. The FECA regulations at 20 C.F.R. §10.11 provide in part that "All records relating to claims for benefits filed under the FECA, including any copies of such records maintained by an employing agency, are covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal Employees' Compensation Act File). This system of records is maintained by and under the control of the OWCP, and, as such, all records covered by DOL/GOVT-1 are official records of the OWCP." DOL/GOVT-1 provides that federal agencies that employed the claimant at the time of the occurrence or recurrence of the injury or occupational illness can access OWCP case file information in order to verify billing, to assist in administering the FECA, to answer questions about the status of the claim, to consider rehire, retention or other actions the agency may be required to take with regard to the claim, or to permit the agency to evaluate its safety and health program. 77 Fed. Reg. 1728, at 1738-41 (January 11, 2012), viewable at http://www.gpo.gov/fdsys/pkg/FR-2012-01-11/pdf/2012-345.pdf.

ACTIONS:

A. Intended Use

1. Each time an AR accesses a case, he/she receives a Privacy Act warning consistent with DOL/GOVT-1, which is referenced above:

Access to this case file and data must be restricted to only those authorized employees who need it to perform their official duties, and confidentiality of the records should be protected in such a way that unauthorized persons do not have access to any such records.

Case documentation and data contained in this system is and remains Department of Labor data that is subject to the Privacy Act (5 U.S.C. 552a) and to the Systems Notice for DOL/GOVT-1. Absent a court order from a court of competent jurisdiction or a written release from the individual FECA claimant, such data may only be used pursuant to DOL's OWCP interpretation of a routine use published in DOL/GOVT-1 and in a manner that is compatible with the purpose for which the record was created; that purpose is the administration and payment of FECA compensation. Before any data from DOL/GOVT-1 can be used in a personnel or similar action, there must be a written release from the claimant or an order from a court of competent jurisdiction, or agreement by DFEC management that disclosure of the information is permitted under the Privacy Act. For further information see http://www.dol.gov/sol/privacy/dol-govt-1.htm.

2. By proceeding with the retrieval of the case after having received such warning, the AR is certifying that he/she is accessing the case file information for a reason consistent with a published routine use.

B. Access

1. ARi is a feature granted only to agencies that have executed a Memorandum of Understanding (MOU) with the OWCP relative to ECOMP (see FECA Circular 13-03), and are actively using ECOMP to electronically file workers' compensation forms (CA-1/2s and/or CA-7s).

2. ARi functionality is limited to users granted access to a Digital Rights Management (DRM) license. A specific number of licenses is provided to agencies actively using ECOMP for forms filing.

3. DRM licenses are granted to an agency's ECOMP Agency Maintenance User (AMU) by the ECOMP DFEC Administrator. These licenses are then assigned to specific AR users under that AMU's jurisdiction. When providing ARi access to an AR, the AMU is required to instruct each user that only that single user may utilize his/her license in accordance with this guidance. The DFEC Administrator and the AMU can verify who has access to ARi for a specific agency at any time via a specific application in ECOMP.

4. The assignment of a DRM license activates the ARi feature enabling designated ARs to view imaged workers compensation cases assigned to chargeback codes to which that AR is already assigned.

C. Reviewing Cases

1. The ARi user must have the following pieces of information: claim number, claimant's last name, claimant's date of birth, and the date of injury. If these pieces of information do not match the OWCP case data exactly, or if the case is not assigned to a chargeback code to which the AR has been granted access in ECOMP, viewing of the requested case will not be permitted.

2. ARi users may download up to 5 cases to their Review Cases Dashboard. It takes approximately 24 hours from the time the request is made to the time the imaged case becomes available to the ARi user.

3. Cases may be viewed for up to 5 calendar days, but an ARi user may release a case at any time to free-up a slot on the Dashboard. The user can only see documents available at the time the case is requested; there is no refresh option.

4. ARi users can view all imaged documents in a case that have been received within the last 3 years, as well as all other imaged documents beyond 3 years old that are indexed in the OWCP case file as a decision, a form, or as outgoing correspondence.

D. Saving and Printing Documents

1. ARi users may download/save any or all documents in a case on their dashboard.

2. When the user chooses to download a document, he/she must first indicate why the documents are being saved. An available list of the "routine uses" is provided, but there is no default. The ARi user must choose an available option before ECOMP will download the documents. Available choices are:

  • To answer questions about the status of the claim
  • To consider return-to-work opportunities
  • To evaluate the agency's safety and health program
  • To assess continuing eligibility for FECA benefits
  • To verify billing

3. Documents are downloaded via a secure PDF document. This PDF document is encrypted using DRM and is accessible only to the ARi user who created the document.

4. Each time the secure PDF document is accessed, the ARi user is required to enter his/her ECOMP user ID and password. If the user ID and password for the document are not valid, the user will not be granted access to that document.

5. Each page of every document downloaded from ECOMP by an ARi user will be marked with an annotation atop the document that indicates it was "Printed from ECOMP," with the user's ECOMP user ID and the date it was printed.

E. Documentation of Case File Review and Record of Saved/Printed Documents

1. The fact that a case was reviewed in ARi is recorded in the OWCP case file via an automated memo uploaded directly to the case by the ECOMP system. This memo denotes when a case was accessed and who accessed it.

2. The memo for the OWCP case file also details any documents that the ARi user saved/printed and the reason for such action. See D2 above.

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Distribution: All DFEC Staff; Employing Agencies

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FECA CIRCULAR NO. 13-07

September 6, 2013


Subject: Improper Document Submissions


PURPOSE: This circular is being issued to clarify the policy of the Office of Workers' Compensation Programs (OWCP) Division of Federal Employees' Compensation (DFEC) with respect to the submission of case file records of another injured worker as evidence in support of a claim for compensation under the Federal Employees' Compensation Act (FECA).ACTIONS:  OWCP has determined it will not permit the inclusion of case file records about another individual in the FECA claim file maintained under the name and personal identifier of the claimant who is the subject of the case file in question.

The provisions of the Privacy Act are meant to assure the private citizen's right to confidentiality of personal information, including financial and medical history, in records filed in a system of records under the individual's own name.  This law sets forth the government's responsibility to properly maintain and restrict access to these records. The contents of an employee's case file, to include medical records (including District Medical Advisor reports), decisions of the Branch of Hearings and Review, etc. are protected under the Privacy Act.  More specifically, 5 U.S.C. 552a(e)(5) requires a federal agency to "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination."

OWCP has concluded that, absent unusual circumstances such as group injuries (where such information would be relevant but the names and personal identifiers of the other individuals would be redacted), it is not consistent with the Privacy Act to permit the inclusion of documents from one case file in the case file of another individual.

In addition to OWCP's Privacy Act responsibilities, such submissions interfere with and are inconsistent with OWCP's adjudicatory responsibilities under the FECA.

MEDICAL REPORTS FROM OTHER CLAIMANTS - As medical reports about other individuals are not relevant to any determination in another FECA case and do not serve as precedent, the inclusion of such medical reports serves only to confuse the individual physicians reviewing the record, agency workers' compensation specialists reviewing documents for return to work, Office of Inspector General agents, as well as any individuals within the Department of Labor who exercise review authority over FECA determinations (such as an OWCP Hearing Representatives and Employees' Compensation Appeals Board judges).

DECISIONS OF OWCP'S BRANCH OF HEARINGS AND REVIEW - OWCP formal decisions (including decisions of Hearing Representatives from the OWCP Branch of Hearings & Review) are limited to the facts in each specific case, are Privacy Act protected, are not published, and are not considered to be precedential.  Because these decisions are not precedential, they are not relevant, probative, or material in any way to OWCP's adjudication of a different claim.

The above restrictions on document submission apply regardless of whether (1) the personally identifiable information (PII) of the other individual is redacted (except in extraordinary circumstances such as group injuries as addressed above), or (2) a waiver or release has been obtained from the other individual authorizing use of his or her case file records.

ECAB DECISIONS - Decisions of the Employees' Compensation Appeals Board (ECAB) may of course continue to be submitted as precedent in support of a claim for FECA compensation.  The full name or OWCP case file number of the corresponding injured worker should not be used or otherwise appear in the submission.  ECAB decisions should be properly cited by using their caption such as D.F., Docket No. 2013-xxxx (issued July 1, 2013).

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Distribution: DFEC Staff

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FECA CIRCULAR NO. 12-01

Issue Date: February 24, 2012

 


SUBJECT: Dual Benefits - FERS Cost of Living Adjustments


Effective December 1, 2011, benefits issued by the Social Security Administration (SSA) were increased by 3.6%. This requires the amount of the Federal Employees' Retirement System (FERS) Dual Benefits deduction to be increased by the same amount, to ensure the dollar-for-dollar offset remains current.

This adjustment will be made from the National Office for all cases that were correctly entered into the Compensation application of the Integrated Federal Employees Compensation System (iFECS). The adjustment will be effective with the periodic roll cycle beginning December 18, 2011. There will be no adjustment or overpayment declared for the period of December 1, 2011 through December 17, 2011.

The historical SSA cost of living adjustments are as follows:

12/01/2011 - 11/30/2012
12/01/2010 - 11/30/2011
12/01/2009 - 11/30/2010
12/01/2008 - 11/30/2009
12/01/2007 - 11/30/2008
12/01/2006 - 11/30/2007
12/01/2005 - 11/30/2006
12/01/2004 - 11/30/2005
12/01/2003 - 11/30/2004
12/01/2002 - 11/30/2003
12/01/2001 - 11/30/2002
12/01/2000 - 11/30/2001
12/01/1999 - 11/30/2000
12/01/1998 - 11/30/1999
12/01/1997 - 11/30/1998
12/01/1996 - 11/30/1997
12/01/1995 - 11/30/1996
12/01/1994 - 11/30/1995

3.6%
0.0%
0.0%
5.8%
2.3%
3.3%
4.1%
2.7%
2.1%
1.4%
2.6%
3.5%
2.4%
1.3%
2.1%
2.9%
2.6%
2.8%

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Distribution: All Claims Staff and Fiscal Personnel

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FECA CIRCULAR NO. 12-02

Issue Date: February 24, 2012

 


SUBJECT: Agency Query System (AQS) Access for Agency Employees, Contractors and Inspector General Offices

PURPOSE: Because of continued heightened concerns over disclosure of personal information, the Office of Workers' Compensation Programs (OWCP) is instituting this formal policy on AQS access.

While OWCP realizes that AQS information could be useful to other entities such as pharmacy providers, OWCP believes that the very limited information needed by these entities is available through other means, such as the bill pay portal.

BACKGROUND:

1. AQS is a secure internet site that provides access to certain information on Federal Employees' Compensation Act (FECA) claims to authorized personnel from federal agencies. The information available includes the claimant's name, social security number, home address, current claim status, compensation payment history, medical bill payment history, and COP Nurse assignment information.

2. Within each federal agency, there is a designated Intra-Agency Coordinator (IAC) recognized by DFEC as the sole point of contact for AQS user access within that particular agency. Any employing agency personnel who contact DFEC directly for AQS access are routed to the applicable IAC. The IAC then contacts the Division of Federal Employees' Compensation (DFEC) to gain permission for that user. A specific user name is assigned to that user; access is password protected.

3. Access to AQS cannot be granted on a case-by-case basis, nor can AQS data fields be limited by user. Access is granted based on employing agency chargeback codes.

4. All records relating to claims for FECA benefits are covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1. Information from the FECA file may only be released pursuant to a need to know (applicable only to disclosures within the Department of Labor), a published routine use, a signed Privacy Act waiver, or a court order from a court of competent jurisdiction. Release of information in accordance with a routine use must be consistent with the purpose for which the file was created; that purpose is the administration of the FECA claim. The FECA regulations at 20 C.F.R. §10.11 make clear that the protection, release, inspection, and copying of records covered by DOL/GOVT-1 should be carried out in accordance with the rules, guidelines, and provisions of Subpart A of the FECA regulations, as well as those contained in 29 C.F.R. parts 70 and 71, which are the Department of Labor's regulations implementing the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a) respectively, as well as with the notice of system of records and routine uses published in the Federal Register.

5. A "routine use" authorizes disclosing information from the FECA claim file without first obtaining the claimant's permission. Such disclosure is acceptable because the routine use is listed and published in the Privacy Act Systems Notice for DOL/GOVT-1; because OWCP has concluded that disclosure in the particular circumstance is compatible with the routine use; and because the anticipated use of the information is consistent with the purpose for which the information was collected. A listing of the universal routine uses which apply to all Department of Labor (DOL) systems of records can be found at http://www.dol.gov/sol/privacy/intro.htm. A listing of the routine uses specific to DOL/GOVT-1 can be found at http://www.dol.gov/sol/privacy/dol-govt-1.htm. [See DOL Privacy Act System of Record Notices, 67 FR 16825, at 16827-16828 (April 8, 2002).] Further guidance can also be found at http://www.dol.gov/sol/privacy/intro.htm.

A. Access for Employing Agency Personnel and Certain Agency Contractors

1. A routine use published in the Federal Register permits disclosure to "federal agencies that employed the claimant at the time of the occurrence or recurrence of the injury or occupational illness in order to verify billing, to assist in administering the FECA, to answer questions about the status of the claim, to consider rehire, retention or other actions the agency may be required to take with regard to the claim, or to permit the agency to evaluate its safety and health program." This, combined with another routine use, permits access to contractors performing workers' compensation functions for agencies, e.g. federal contractors retained to provide claims filing, case management and return to work services. In limited circumstances, other individuals may be granted access based on a particular routine use.

2. Based on DOL OWCP's responsibility to protect the information that resides in a Privacy Act System of Records, AQS access must be limited to authorized users in federal agencies (and, where appropriate, contractor employees) who are performing activities authorized by the language in the routine use above. Examples of such authorized users include agency injury compensation specialists. Other employing agency personnel (such as immediate supervisors, safety and health officials without any workers' compensation duties, and Accident Review Panels) generally do not have a sufficient business reason for access to this level of personal information and will not qualify as authorized users.

3. DOL does not consider medical providers and entities that perform ancillary functions (for example, pharmacy billing and management) authorized users, as AQS provides a level of detail and personal information far beyond what is needed by those entities. If such providers and entities need information on a particular claim, other methods for accessing the more limited information needed by them are available through the billing portal or from the agency, but direct access to AQS will not be authorized.

4. Agencies may wish to encourage their employees to utilize the Claimant Query System as an additional resource to meet their needs.

B. Access for Employing Agency Inspector general Offices

1. FECA Circular 08-04 (DFEC Protocol Statement - OIG Audits, Evaluations and Investigations) was released in response to the increased number of requests for information received from the Office of Inspector General (OIG) community as they performed audits, evaluations, inspections and investigations. DFEC recognizes that employing agencies and their respective OIG offices have an interest in reducing costs, returning people to work, and identifying and preventing fraud. In an effort to fully cooperate with the OIG community, while simultaneously coordinating the interaction in a way that would not interfere with our ability to perform our mission, DFEC outlined a specific protocol that would be used to respond to such requests that would preserve program resources and avoid duplication of effort. This circular detailed that when an employing agency OIG investigator requests to view a case record, he/she will be required to sign a brief statement prior to gaining access to the file indicating that access to the file is being requested based on an investigation into a potential violation of law. The guidance provided in FECA Circular 08-04 has not changed.

2. FECA Circular 09-05 (Release of Documents from Federal Employees' Compensation Act (FECA) Files) was released to provide District Offices guidance in situations where information or copies of documents are requested from a claimant's FECA case file. The circular focused on such requests made by employing agencies and clearly outlined that all records relating to claims for FECA benefits are covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1. Specifically, this circular provided that DFEC may grant requests from employing agencies for records pertaining to their employees as a permitted routine use, but that blanket release of the entire case record is not appropriate, except to an investigative body. This circular also outlined that a request from the employing agency for copies of documents contained in the FECA case record must contain a reason for the request, and that the use of these copies must be consistent with the reason the information was collected (connected in some way with the compensation claim). The guidance provided in FECA Circular 09-05 has not changed.

3. Employing agency OIG access to information in the FECA file is permitted by the first sentence of routine use b of DOL/GOVT-1- the same routine use that permits the employing agency to receive information about specific cases of its own employees. However, DFEC's experience with providing employing agencies access to the AQS system has demonstrated that the current structure, which establishes the use of the agency IAC to provide the appropriate level of access to AQS for each individual within that agency who seeks access, has worked effectively and efficiently. For this reason, any request for independent AQS access received from a non-DOL employing agency OIG, or other investigative body, will not be granted. Access to the AQS system for any agency personnel, including any OIG offices or other agency investigative body, must be coordinated with and channeled through the agency IAC who has been recognized by DFEC. Separate access, outside that designated IAC channel, will not be granted by DFEC.

4. Upon receipt and review of a written request delineating in detail the need for such access and the specific timeframe requested, an exception to the access procedure in #3 above may be granted only by the Deputy Director for Federal Employees' Compensation.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff; Employing Agencies

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FECA CIRCULAR NO. 12-03

Issue Date: April 6, 2012

 


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


The interest rate to be assessed for the prompt payment bills is 2.0 percent for the period of January 1, 2012 through December 31, 2012. This new rate has been updated in the Central Bill Payment system tables.

The rate for assessing interest charges on debts due the government has not been changed. The interest rate for assessing interest charges on debts due the government remains 1.0 percent for the period of January 1, 2012 through December 31, 2012.

Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rate will be reviewed on July 1, 2012 to determine if the Treasury has changed the rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments

Distribution: All Claims Staff and Fiscal Personnel

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FC 12-03 EXHIBIT 1 - PROMPT PAYMENT INTEREST RATES

01/1/12 - 12/31/12
07/1/11 - 12/31/11
01/1/11 - 12/31/11
01/1/10 - 12/31/10
07/1/09 - 12/31/09
01/1/09 - 06/30/09
07/1/08 - 12/31/08
01/1/08 - 06/30/08
07/1/07 - 12/31/07
01/1/07 - 06/30/07
07/1/06 - 12/31/06
01/1/06 - 06/30/06
07/1/05 - 12/31/05
01/1/05 - 06/30/05
07/1/04 - 12/31/04
01/1/04 - 06/30/04
07/1/03 - 12/31/03
01/1/03 - 06/30/03
07/1/02 - 12/31/02
01/1/02 - 06/30/02
07/1/01 - 12/31/01
01/1/01 - 06/30/01
07/1/00 - 12/31/00
01/1/00 - 06/30/00
07/1/99 - 12/31/99
01/1/99 - 06/30/99
07/1/98 - 12/31/98

2.0 %
2 ½ %
2 ⅝ %
3 ¼ %
4 ⅞ %
5 ⅝ %
5 ⅛ %
4 ¾ %
5 ¾ %
5 ¼ %
5 ¾ %
5 ⅛ %
4 ½ %
4 ¼ %
4 ½ %
4.0 %
3 ⅛ %
4 ¼ %
5 ¼ %
5 ½ %
5 ⅞ %
6 ⅜ %
7 ¼ %
6 ¾ %
6 ½ %
5.0 %
6.0 %

01/1/98 - 06/30/98
07/1/97 - 12/31/97
01/1/97 - 06/30/97
07/1/96 - 12/31/96
01/1/96 - 06/30/96
07/1/95 - 12/31/95
01/1/95 - 06/30/95
07/1/94 - 12/31/94
01/1/94 - 06/30/94
07/1/93 - 12/31/93
01/1/93 - 06/30/93
07/1/92 - 12/31/92
01/1/92 - 06/30/92
07/1/91 - 12/31/91
01/1/91 - 06/30/91
07/1/90 - 12/31/90
01/1/90 - 06/30/90
07/1/89 - 12/31/89
01/1/89 - 06/30/89
07/1/88 - 12/31/88
01/1/88 - 06/30/88
07/1/87 - 12/31/87
01/1/87 - 06/30/87
07/1/86 - 12/31/86
01/1/86 - 06/30/86
07/1/85 - 12/31/85
01/1/85 - 06/30/85

6 ¼ %
6 ¾ %
6 ⅜ %
7.0 %
5 ⅞ %
6 ⅜ %
8 ⅛ %
7.0 %
5 ½ %
5 ⅝ %
6 ½ %
7.0 %
6 ⅞ %
8 ½ %
8 ⅜ %
9.0 %
8 ½ %
9 ⅛ %
9 ¾ %
9 ¼ %
9 ⅜ %
8 ⅞ %
7 ⅝ %
8 ½ %
9 ¾ %
10 ⅜ %
12 ⅛ %

Prior to 01/01/85 Not Applicable

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FC 12-03 EXHIBIT 2 - DEBT MANAGEMENT INTEREST RATES

01/1/12 - 12/31/12

1%

01/1/11 - 12/31/11

1%

1/1/10 – 12/31/10

1%

 

 

1/1/09 - 12/31/09

3%

7/1/08 - 12/31/08

3%

1/1/08 - 6/30/08

5%

1/1/07 - 12/31/07

4%

7/1/06 - 12/31/06

4%

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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 01/01/84

Not applicable

Prior to 01/01/85 Not Applicable

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FECA CIRCULAR NO. 12-04

Issue Date: May 14, 2012

 


EXPIRATION DATE: Date of Next Rate Change


SUBJECT: Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately-Owned Automobiles Necessary to Secure Medical Examination and Treatment.


Background: Effective April 17, 2012, the mileage rate for reimbursement to Federal employees traveling by privately-owned automobile was increased to 55.5 cents per mile by GSA. No restriction is made as to the number of miles that can be traveled. As in the past, determination has been made to apply the applicable rate to disabled FECA beneficiaries traveling to secure necessary medical examination and treatment.

Applicability: Appropriate National Office and District Office personnel.

Reference: Chapter 5-0204, Principles of Bill Adjudication, Part 5, Benefit Payments, Federal (FECA) Procedure Manual and 5 U.S.C. 8103.

Action: The Central Bill Pay (CBP) facility has updated its system to reflect the new rates. Since there is no action required at the District Office level, the rates are being provided for informational purposes only.

The following is a list of the historical mileage rates used to reimburse claimant travel expense:

01/01/1995 - 06/06/1996
06/07/1996 - 09/07/1998
09/08/1998 - 03/31/1999
04/01/1999 - 01/13/2000
01/14/2000 - 01/21/2001
01/22/2001 - 01/20/2002
01/21/2002 - 12/31/2002
01/01/2003 - 12/31/2003
01/01/2004 - 02/03/2005
02/04/2005 - 08/31/2005
09/01/2005 - 12/31/2005
01/01/2006 - 01/31/2007
02/01/2007 - 03/18/2008
03/19/2008 - 07/31/2008
08/01/2008 - 12/31/2008
01/01/2009 - 12/31/2009
01/01/2010 - 12/31/2010
01/01/2011 - 04/16/2012
04/17/2012 to Present

30.0 cents per mile
31.0 cents per mile
32.5 cents per mile
31.0 cents per mile
32.5 cents per mile
34.5 cents per mile
36.5 cents per mile
36.0 cents per mile
37.5 cents per mile
40.5 cents per mile
48.5 cents per mile
44.5 cents per mile
48.5 cents per mile
50.5 cents per mile
58.5 cents per mile
55.0 cents per mile
50.0 cents per mile
51.0 cents per mile
55.5 cents per mile

DispositionThis Bulletin should be retained in Chapter 5-0204, Principles of Bill Adjudication, Federal (FECA) Procedure Manual.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: All Claims Staff and Fiscal Personnel

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FECA CIRCULAR NO. 12-05

Issue Date: May 14, 2012

 

SUBJECT: Insurance Deductions


This circular is being issued to provide supplemental guidance on the effective date of insurance deductions. It updates the information previously contained in Federal Employees' Compensation Act (FECA) Circular 09 - 04 (Health Benefits Insurance and Life Insurance - General Guidance), issued June 1, 2009.

When a Federal employee enters a leave without pay (LWOP) status, the employing agency is no longer able to deduct for health benefits and life insurance premiums. If compensation for wage loss is payable under the FECA, the responsibility for making those deductions transfers to the Office of Workers' Compensation Programs (OWCP).

As noted in Circular 09-04, OWCP deductions for health benefits and life insurance become effective on the first day of LWOP status. Historically, OWCP did not actually begin making the deductions until the claimant has been in receipt of compensation for 28 days. Once the claimant had received compensation for more than 28 days, deductions were made retroactively to the date compensation began.

Beginning in August, 2010, OWCP discontinued the practice of delaying deductions for that 28-day period and instead began the deductions effective the first day of LWOP. Beginning deductions promptly, rather than making a retroactive deduction at a later date, enables OWCP to provide continuity of payment for the injured worker with no interruptions in insurance deductions.

Note - Insurance deductions are not made for intermittent hours or days within a pay period.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: All Claims Staff and Fiscal Personnel

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FECA CIRCULAR 12-06

June 26, 2012

SUBJECT: Bill Payment Practices and Restrictions


This circular is being issued to document certain current billing practices and restrictions for the Division of Federal Employees' Compensation (DFEC) under the Federal Employees' Compensation Act (FECA). See 5 U.S.C. 8103. 20 C.F.R. Part 10, in particular Subpart I, also provides additional details concerning the responsibilities of claimants and providers in regard to medical billing and reimbursement.

I. Medication Dispensed by a Provider

20 CFR §10.809, which was updated effective August 29, 2011, outlines how payments are made for medication. This regulation specifically states that, "Payment for medicinal drugs prescribed by physicians shall not exceed the amount derived by multiplying the average wholesale price, or as otherwise specified by OWCP, of the medication by the quantity or amount provided, plus a dispensing fee."

Effective June 17, 2012, any bill submitted on a Form OWCP-1500 for the payment of medications dispensed in the office using one of the unlisted HCPC "J" codes (J3490, J8499, J8999 and J9999) will be paid based on the Average Wholesale Price or the Medispan Average Wholesale Price. The reimbursement will be determined based on the date of service and the price for the National Drug Code (NDC), which accompanied the unlisted drug code, as outlined below.

1. Providers submit bills for payment of medications dispensed in the office on an OWCP-1500 billing form. The bills for these services contain one of the following unlisted HCPC "J" codes: J3490, J8499, J8999, and/or J9999. These codes are accompanied with an NDC code and the day's supply, which are key factors for determining the payment amount.

2. The pharmacy system, using the billed diagnosis, will validate the appropriateness of the NDC with the claimant's accepted condition. If the medication is not payable in accordance with the claimant's accepted conditions, the bill will be denied. If the NDC code is payable and appropriate for the claimant's accepted condition, the bill will be paid.

3. The pharmacy system, based on the date of service, will systematically perform the pricing of the medication based on the date of service. If the date of service is prior to 09/30/2011, the pharmacy system will calculate the payment using the Average Wholesale Price (AWP). If the date of service is after 09/30/2011, the pharmacy system will calculate the payment using the Medispan Average Wholesale Price (MAW).

4. Similarly, if a bill is received with procedure code 99070 and the description of services is equal to "Dispensing Fee" and/or "Discount" (or any other description that represents a charge associated with the payment of medication), the line will be denied. If this procedure code is billed with a valid and appropriate supply description (tray, bandages, etc.), the line will be paid. Additionally, if the provider bills an NDC under this procedure code (99070), the NDC will be evaluated to determine payment just like the "J" code.

II. Generic Medication

20 CFR §10.809(c) provides that, "With respect to prescribed medications, OWCP may require the use of generic equivalents where they are available." This regulation was effective August 29, 2011. As the prior regulations already provided full authority for OWCP to require the use of generics, the most recent regulatory update did not alter DFEC's policy regarding generic medication. The regulatory update only moved the language referenced to a different section, as the same exact language now found in 20 CFR §10.809(c) was previously found in 20 CFR §10.310(b).

Effective November 01, 2008, DFEC revised the criteria for dispensing brand medication versus generic medication. As of that date, DFEC added an edit to review the Dispense as Written (DAW) field for all medication bills and claims for reimbursement. Brand medications process for payment only if the DAW is equal to one of the following:

DAW 1 (Brand selected when requested by physician)
DAW 8 (Brand dispensed as a result of generic not being available by the manufacturer)
DAW 0 (Brand drug selected when no generic available on the market)

Generic drugs will be selected automatically even when brand is available unless one of these DAW codes is present.

DFEC continues to use these criteria for medication authorizations.

III. Parenteral Fentanyl Products

On May 3, 2011, DFEC implemented a new policy and program to monitor and closely manage the use of fast-acting fentanyl products such as Actiq and Fentora and the prescribing of parenteral fentanyl products. An automatic processing rule was implemented whereby new prescriptions for fast-acting fentanyl products would be denied unless the claimant had an accepted work-related condition of cancer. See FECA Bulletin 11-05.

IV. Bills for Expenses Related to Medical Travel

Pursuant to 5 U.S.C. 8103 and 20 CFR §10.315, the employee is entitled to reimbursement of reasonable and necessary expenses, including transportation needed to obtain authorized medical services, appliances or supplies. In reviewing requests for reimbursement, OWCP considers the availability of services, the employee's condition, and the means of transportation. See also 3-0400 of the FECA Procedure Manual. Effective October 30, 2011, a new bill payment restriction was added such that any single claim in excess of 200 miles is rejected by the automated system so that it can be reviewed manually for approval. Prior to this change, the restriction was for any travel greater than 500 miles. Other restrictions, as outlined below, are also active.

A. Claimant Requests for Reimbursement

1. Claimants submit claims for reimbursement for travel expenses on Form OWCP-957. Items 5, 6 and 7 of this form are used to claim reimbursement for specific dates of travel. Data required to process such reimbursement is designated by specific alpha designated blocks for each date of service.

2. Only one date of travel will be accepted in block A (Date of Travel). Date ranges will not be accepted and will be returned to the claimant.

3. A Trip Code (one way or round trip) must be checked in block B. If not present, it will be returned to the claimant.

4. A departure and destination must be checked in elected blocks C (Travel From) and D (Travel To). If not present, it will be returned to the claimant.

5. The complete address of the facility to which the claimant traveled must be present in block E (Medical Facility Name and Address). If not present, the bill will be returned to the claimant. Note, however, this information is not required for travel to a pharmacy/medical supply facility.

6. Block F (Total Expenses/Cost) is used to claim reimbursement for items related to travel, other than the mileage. These items are listed below with applicable codes.

A0100 – Non-Emergency Transportation – Taxi
A0110 – Non-Emergency Transportation and Bus, Intra- or Inter-State Carrier
A0120 – Non Emergency Transportation Mini-Bus, Mountain Area Transportation or other Transportation System
A0170 – Transport Parking Fees/Tolls
A0180 – Non-Emergency Transport Lodging Recipient
A0200 – Non-Emergency Transport Lodging Escort
A0190 – Non-Emergency Transport Meals Recipient
A0210 – Non-Emergency Transport Meals Escort
A0130 – Non-Emergency Transportation Wheelchair Van
A0140 – Non-Emergency Transportation and Air Travel (Private or Commercial Intra- or Inter-State)

If the claimant requests reimbursement for any of these services, and the charges exceed $75.00, a receipt must accompany the reimbursement claim. Manual review is also required, and the Central Bill Payment Facility will seek approval and authorization to pay the services from the Claims Examiner. If the claim is less than or equal to $75.00, receipts are not required, and the service will pay without any manual review.

7. Block G (Private Auto Only Miles Traveled) is used to specify the number of miles claimed for reimbursement. Applicable codes are A0080 and A0090. If the mileage billed in block G is greater than 200 miles per day, manual review is required, and the Central Bill Payment Facility will seek approval from the Claims Examiner. If the mileage billed in block G is less than or equal to 200 miles per day, the reimbursement claim will be paid without manual review.

8. Reminder – Reimbursement for travel expenses related to medical treatment/evaluation in DFEC claims is generally based on GSA requirements for travel. As such, DFEC will not pay for meals or lodging unless the travel requires more than 12 hours to complete.

B. Provider Bills

1. Providers submit bills for travel-related expenses on Form OWCP-1500.

2. Providers billing for mileage (codes A0080 and A0090) will be paid based on the General Services Administration (GSA) mileage rate. Payment will be calculated based on the number of units billed in Block 24-G of the OWCP-1500 billing form.

3. If the service exceeds 200 miles per day, prior authorization is required. If there is no such authorization on file when the bill is received, the bill will be denied and the provider will be directed to complete the Medical Authorization – Transportation and Travel Authorization template, which can be found on the Central Bill Payment contractor's website. If the service is billed at 200 miles or less, the service will pay without prior approval.

4. A provider may also use Block 24-D of the OWCP-1500 to bill for services related to travel, other than the mileage. These items are listed below with applicable codes.

A0100 – Non-Emergency Transportation – Taxi
A0110 – Non-Emergency Transportation and Bus, Intra- or Inter-State Carrier
A0120 – Non Emergency Transportation Mini-Bus, Mountain Area Transportation or other Transportation Systems
A0170 – Transport Parking Fees/Tolls
A0130 – Non-Emergency Transportation Wheelchair Van
A0140 – Non-Emergency Transportation and Air Travel (Private or Commercial Intra- or Inter-State)

Prior authorization for any of these services is required if the charge will be more than $75.00. If the provider submits a bill for any of these services, and the charges exceed $75.00, prior authorization is required, and an invoice showing the Departure and Destination of the trip must accompany the bill or be reflected on the bill when submitted. If there is no attachment showing proof of the trip, or the information is not contained within the bill, it will be denied. If the bill does contain sufficient detail regarding the trip, and prior authorization is not on record, the bill will be denied, requesting the submission of the Medical Authorization – Transportation and Travel template. If the bill is for less than or equal to $75.00, documentation of the trip details is not required, and the service will pay without any manual review.

V. Anesthesia Fee Schedule

Effective 12/05/10, updates were made to the anesthesia fee schedule. Effective this date, the fee schedule allowance for anesthesia services was based upon the formula: (Time Units + Base Units) x Conversion Factor. In addition, every anesthesia procedure billed to OWCP required one of the following modifiers: AA, QY, QK, AD, QX, or QZ.

When multiple procedures are performed during a single anesthetic administration, reimbursement is based on the line item representing the most complex procedure.

VI. Procedure Codes

A. RP100

Effective 07/01/2010, DFEC no longer utilized DOL homegrown procedure code RP100 (Pain Management). Effective that date, when rendering pain management services, providers were required to bill and/or submit for prior authorizations the appropriate HCPCS/CPT codes applicable for the services.

B. Consultation Codes

Effective March 1, 2010 DFEC no longer accepted the use of the AMA/CPT consultation codes ranges 99241-99245 and 99251-99255 for outpatient and office settings. This policy adhered to the decision made by the Center of Medicare and Medicaid (CMS) announced in MLN Matters, #MM6740.

VII. Place of Service on OWCP-1500

Effective 07/15/2010, DFEC required the place of service to be present on the OWCP-1500 (Box 24b). This requirement, however, did not affect any facility services billed on a Form UB04 or professional services billed for third party carriers, billing agents, contract nurses, second opinion contractors, and vocational rehabilitation services.

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Distribution: DFEC Staff

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FECA CIRCULAR NO. 11-01

February 2, 2011


Subject: Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately Owned Automobiles Necessary to Secure Medical Examination and Treatment.

Background: Effective January 1, 2011, the mileage rate for reimbursement to Federal employees traveling by privately-owned automobile increased to 51 cents per mile by GSA. No restriction is made as to the number of miles that can be traveled. As in the past, a determination has been made to apply the applicable rate to disabled FECA beneficiaries traveling to secure necessary medical examination and treatment.

Applicability: Appropriate National Office and District Office personnel.

Reference: Chapter 5-0204, Principles of Bill Adjudication, Part 5, Benefit Payments, Federal (FECA) Procedure Manual and 5 USC 8103.

Action: The Central Bill Pay (CBP) facility has updated its system to reflect the new rates. Since there is no action required at the District Office level, the rates are being provided for informational purposes only.

The following is a list of the historical mileage rates used to reimburse claimant travel expense:

01/01/1995 - 06/06/1996

30.0 cents per mile

06/07/1996 - 09/07/1998

31.0 cents per mile

09/08/1998 - 03/31/1999

32.5 cents per mile

04/01/1999 - 01/13/2000

31.0 cents per mile

 

 

01/14/2000 - 01/21/2001

32.5 cents per mile

01/22/2001 - 01/20/2002

34.5 cents per mile

01/21/2002 - 12/31/2002

36.5 cents per mile

01/01/2003 - 12/31/2003

36.0 cents per mile

01/01/2004 - 02/03/2005

37.5 cents per mile

02/04/2005 - 08/31/2005

40.5 cents per mile

09/01/2005 - 12/31/2005

48.5 cents per mile

 

 

01/01/2006 - 01/31/2007

44.5 cents per mile

02/01/2007 - 03/18/2008

48.5 cents per mile

03/19/2008 - 07/31/2008

50.5 cents per mile

08/01/2008 - 12/31/2008

58.5 cents per mile

01/01/2009 - 12/31/2009

55.0 cents per mile

01/01/2010 - 12/31/2010

50.0 cents per mile

01/01/2011 - Current

51.0 cents per mile


Disposition: This Bulletin should be retained in Chapter 5-0204, Principles of Bill Adjudication, Federal (FECA) Procedure Manual.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 11-02

February 2, 2011


SUBJECT: Dual Benefits - FERS Cost of Living Adjustments

For the second year in a row, there will not be a raise in the Social Security Administration (SSA) benefits for 2011. This is due to the fact that there was no increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of 2008 to the third quarter of 2010, as reported by the Bureau of Labor Statistics. The CPI-W percentage of increase sets the amount of the SSA COLA, so the lack of increase results in no increase to SSA benefits.

Since there is no increase to account for, there will be no change to the amounts currently being offset for Federal Employees' Retirement System (FERS) Dual Benefits deductions.

The historical SSA cost of living adjustments are as follows:

12/01/2010 - 11/30/2011

0.0%

12/01/2009 - 11/30/2010

0.0%

12/01/2008 - 11/30/2009

5.8%

12/01/2007 - 11/30/2008

2.3%

12/01/2006 - 11/30/2007

3.3%

12/01/2005 - 11/30/2006

4.1%

12/01/2004 - 11/30/2005

2.7%

12/01/2003 - 11/30/2004

2.1%

12/01/2002 - 11/30/2003

1.4%

12/01/2001 - 11/30/2002

2.6%

12/01/2000 - 11/30/2001

3.5%

12/01/1999 - 11/30/2000

2.4%

12/01/1998 - 11/30/1999

1.3%

12/01/1997 - 11/30/1998

2.1%

12/01/1996 - 11/30/1997

2.9%

12/01/1995 - 11/30/1996

2.6%

12/01/1994 - 11/30/1995

2.8%


DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 11-03

March 3, 2011


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

The interest rate to be assessed for the prompt payment bills is 2.625 percent for the period of January 1, 2011 through December 31, 2011. This new rate has been updated in the Central Bill Payment system tables. 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 1.0 percent for the period of January 1, 2011 through December 31, 2011. Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rate will be reviewed on July 1, 2011 to determine if the Treasury has changed the rate. Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

Periodically, a question is raised as to whether the Prompt Payment Act (PPA) applies to situations where a request for payment is submitted by medical providers seeking reimbursement for services provided to federal employees under the Federal Employees' Compensation Act (FECA). The answer is no, as the PPA applies only to federal procurement contracts. It does not extend to the government's financial obligations that are statutory or regulatory in nature. 5 C.F.R. §§ 1315.1(a) - 1315.2(g); New York Guardian Mortgagee Corp. v. United States, 916 F.2d 1558 (Fed. Cir. 1990) (declining to award interest to mortgage company seeking interest on delayed payments made under VA mortgage-guarantee program); see also Boers v. United States, 243 F.3d 561, 2000 WL 1475538 at *3 (Fed. Cir. 2000) (unpublished) (declining to award interest on benefits under the Dairy Indemnity Payment Program administered by the Agriculture Department). The Prompt Payment Act does not apply to medical providers' invoices under FECA because the agency's obligation to pay arises not out of an enforceable procurement contract between medical providers and the agency, but rather out of a statutory obligation to injured federal employees. See 5 U.S.C. § 8103. The relationship between OWCP and treating medical providers under FECA is not contractual. The enrollment process does not result in any sort of agreement between the medical provider and OWCP; it merely informs medical providers of the procedures for seeking payment for services rendered to injured federal employees.

 

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Attachments

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


Attachment to FECA Circular NO. 11-03 - PROMPT PAYMENT INTEREST RATES

01/1/11 - 12/31/11
01/1/10 - 12/31/10
07/1/09 - 12/31/09
01/1/09 - 06/30/09
07/1/08 - 12/31/08
01/1/08 - 06/30/08
07/1/07 - 12/31/07
01/1/07 - 06/30/07
07/1/06 - 12/31/06
01/1/06 - 06/30/06
07/1/05 - 12/31/05
01/1/05 - 06/30/05
07/1/04 - 12/31/04
01/1/04 - 06/30/04
07/1/03 - 12/31/03
01/1/03 - 06/30/03
07/1/02 - 12/31/02
01/1/02 - 06/30/02
07/1/01 - 12/31/01
01/1/01 - 06/30/01
07/1/00 - 12/31/00
01/1/00 - 06/30/00
07/1/99 - 12/31/99
01/1/99 - 06/30/99
07/1/98 - 12/31/98
01/1/98 - 06/30/98

2 5/8 %
3 1/4 %
4 7/8 %
5 5/8 %
5 1/8 %
4 3/4 %
5 3/4 %
5 1/4 %
5 3/4 %
5 1/8 %
4 1/2 %
4 1/4 %
4 1/2 %
4.0 %
3 1/8 %
4 1/4 %
5 1/4 %
5 1/2 %
5 7/8 %
6 3/8 %
7 1/4 %
6 3/4 %
6 1/2 %
5.0 %
6.0 %
6 1/4 %

07/1/97 - 12/31/97
01/1/97 - 06/30/97
07/1/96 - 12/31/96
01/1/96 - 06/30/96
07/1/95 - 12/31/95
01/1/95 - 06/30/95
07/1/94 - 12/31/94
01/1/94 - 06/30/94
07/1/93 - 12/31/93
01/1/93 - 06/30/93
07/1/92 - 12/31/92
01/1/92 - 06/30/92
07/1/91 - 12/31/91
01/1/91 - 06/30/91
07/1/90 - 12/31/90
01/1/90 - 06/30/90
07/1/89 - 12/31/89
01/1/89 - 06/30/89
07/1/88 - 12/31/88
01/1/88 - 06/30/88
07/1/87 - 12/31/87
01/1/87 - 06/30/87
07/1/86 - 12/31/86
01/1/86 - 06/30/86
07/1/85 - 12/31/85
01/1/85 - 06/30/85

6 3/4 %
6 3/8 %
7.0 %
5 7/8 %
6 3/8 %
8 1/8 %
7.0 %
5 1/2 %
5 5/8 %
6 1/2 %
7.0 %
6 7/8 %
8 1/2 %
8 3/8 %
9.0 %
8 1/2 %
9 1/8 %
9 3/4 %
9 1/4 %
9 3/8 %
8 7/8 %
7 5/8 %
8 1/2 %
9 3/4 %
10 3/8 %
12 1/8 %



Back to FECA Circular No. 11-03Back to Top of FECA Circular No. 11-03

Attachment to FECA Circular NO. 11-03 - DEBT MANAGEMENT INTEREST RATES

01/1/11 - 12/31/11

1%

01/1/10 - 12/31/10

1%

 

 

01/1/09 - 12/31/09

3%

07/1/08 - 12/31/08

3%

01/1/08 - 06/30/08

5%

01/1/07 - 12/31/07

4%

07/1/06 - 12/31/06

4%

01/1/06 - 06/30/06

2%

01/1/05 - 12/31/05

1%

 

 

01/1/04 - 12/31/04

1%

01/1/03 - 12/31/03

2%

07/1/02 - 12/31/02

3%

01/1/02 - 06/30/02

5%

01/1/01 - 12/31/01

6%

01/1/00 - 12/31/00

5%

 

 

01/1/99 - 12/31/99

5%

01/1/98 - 12/31/98

5%

01/1/97 - 12/31/97

5%

01/1/96 - 12/31/96

5%

07/1/95 - 12/31/95

5%

01/1/95 - 06/30/95

3%

 

 

01/1/94 - 12/31/94

3%

01/1/93 - 12/31/93

4%

01/1/92 - 12/31/92

6%

01/1/91 - 12/31/91

8%

01/1/90 - 12/31/90

9%

 

 

01/1/89 - 12/31/89

7%

01/1/88 - 12/31/88

6%

01/1/87 - 12/31/87

7%

01/1/86 - 12/31/86

8%

01/1/85 - 12/31/85

9%

 

 

Prior to 01/01/85

Not Applicable


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FECA CIRCULAR NO. 10-01

January 15, 2010


SUBJECT: Guidance for claims filed as a result of the 2010 Decennial Census

This circular is intended to provide instructions for calculating pay rates, determining Continuation of Pay (COP) entitlement, and understanding third party subrogation for claims filed by employees of the Department of Commerce as a result of the 2010 Decennial Census. While this information is not new, it is being provided so that claims staff can consistently apply the rules and regulations in these cases.

Background:
The Department of Commerce is responsible for conducting the Decennial Census and employs enumerators and crew leaders to gather statistical data through interviews with property residents. The Bureau of the Census expects to hire approximately one million individuals with temporary appointments not to exceed 180 days. These employees will work an average of 84 hours during a four to five week period, one week of which will be training. The peak employment period is April through June 2010.

Pay Rates:
Information pertaining to the 2010 Decennial Census has been updated in FECA PM Chapter 2-0900-12 and Chapter 2-0901-9 to reflect current work patterns. The current work schedule has been determined to be 4.5 hours per day, 4 days per week.

All positions, including enumerators, crew leaders and clerks are paid on an hourly basis. Below are the hourly wage rates for enumerators, crew leaders and clerks:

Enumerator:

$10.93 to $22.10

Crew Leader:

$12.43 to $23.60

Clerk:

$ 8.20 to $15.82


Where disability does not exceed 90 days, compensation should be paid on a daily basis in accordance with section 5 U.S.C. 8114(c).

Where disability extends beyond 90 days and the claimant had similar employment during the year prior to the injury, compensation should be paid in accordance with section 5 U.S.C. 8114(d)(1) and (2). If this is not applicable, compensation should be paid on a weekly basis using the following formula: 150 x the actual daily wage divided by 52 (the actual daily wage should be determined by multiplying the hourly pay rate by 4.5 hours).

Any questions regarding pay rates may be referred to the Bureau of Census, Demographic and Decennial Staff, at (301) 763-9620.

COP:
Census workers are civil employees of the Federal government and are included under the COP provisions of 5 U.S.C. 8118; therefore, COP should be determined and calculated in the usual fashion in most instances. However, due to the shorter period of employment for most of these employees, there are a few regulatory provisions to keep in mind.

20 C.F.R. 10.220(d) provides that "an employer shall continue the regular pay of an eligible employee without a break in time for up to 45 calendar days, except when, and only when...the injury was not reported until after employment has been terminated." The employment termination date must be supported by official documentation in the file, such as an SF-50 (or equivalent).

20 C.F.R. 10.222(a)(5) provides that "where the employer has continued the pay of the employee, it may be stopped only when at least one of the following circumstances is present...(5) The employee's period of employment expires or employment is otherwise terminated (as established prior to the date of injury)." The Census Bureau can therefore terminate COP if an SF-50 (dated prior to the date of injury) reflects that the employment would end on a specific date. The key here though is that the SF-50 (or equivalent) must be dated prior to the date of injury.

Also, the Census Bureau sometimes enters into contracts with state, county and city governments to conduct various types of surveys. Most of the workers are hired for very short periods of time, and they are paid directly by the local entity conducting the study. It has been determined that they are not eligible for COP.

Third Party:
Because of statutory confidentiality requirements, Census workers (enumerators and field representatives) cannot file third party claims against home owners or the owners of business establishments unless there is a deliberate act by the resident or owner. Census workers are required by 13 U.S.C. 9(a)(2) to maintain the confidentiality of information provided by a resident or establishment, and are subject to criminal penalties including imprisonment under 13 U.S.C. 214 for the release of information protected by 13 U.S.C. 9. For this reason, it has been determined that OWCP will not require a Census enumerator or field representative who is injured on the private property of the resident or interviewee to pursue a third party claim against the resident or owner. The Bureau of Census has therefore been instructed to answer "no" on the Form CA-1 in response to the question regarding third party liability. The CE should therefore not release the CA-1045 in most instances.

There are only a few exceptions to this rule. If the CE confirms with the Bureau of the Census that the injury was the result of a deliberate act by a resident, or the injury was sustained in transit between interview sites in such a way that the Census worker can maintain confidentiality, the CE should proceed with the release of the CA-1045. For a more detailed discussion, see Federal FECA Procedure Manual at 2-1100-7(a)(3) and FECA Bulletin 99-30, issued August 30, 1999.

Pilot Programs:
Because of the intensive effort involved in the 2010 Census and the need to facilitate quick action on these cases, DFEC and the Bureau of Census are piloting expedited case file access and early nurse referral on a limited basis in order to assess the efficacy of such efforts in improving outcomes for injured employees.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 10-02

January 29, 2010


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

The interest rate to be assessed for the prompt payment bills is 3.25 percent for the period of January 1, 2010 through December 31, 2010. This new rate has been updated in the Central Bill Payment system tables.

The rate for assessing interest charges on debts due the government has also been changed. The interest rate for assessing interest charges on debts due the government is now 1.0 percent for the period of January 1, 2010 through December 31, 2010.

Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rate will be reviewed on July 1, 2010 to determine if the Treasury has changed the rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments

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

 

PROMPT PAYMENT INTEREST RATES

01/1/10 - 12/31/10

3¼%

 

 

7/1/09 - 12/31/09

4 7/8%

7/1/99 - 12/31/99

6½%

1/1/09 - 12/31/09

5%

1/1/99 - 6/30/99

5.0%

7/1/08 - 12/31/08

5

7/1/98 - 12/31/98

6.0%

1/1/08 - 6/30/08

4¾%

1/1/98 - 6/30/98

6¼%

7/1/07 - 12/31/07

5¾%

7/1/97 - 12/31/97

6¾%

1/1/07 - 6/30/07

5¼%

1/1/97 - 6/30/97

6%

7/1/06 - 12/31/06

5¾%

7/1/96 - 12/31/96

7.0%

1/1/06 - 6/30/06

5%

1/1/96 - 6/30/96

5%

7/1/05 - 12/31/05

4½%

7/1/95 - 12/31/95

6%

1/1/05 - 6/30/05

4¼%

1/1/95 - 6/30/95

8%

7/1/04 - 12/31/04

4½%

7/1/94 - 12/31/94

7.0%

1/1/04 - 6/30/04

4.0%

1/1/94 - 6/30/94

5½%

7/1/03 - 12/31/03

3%

7/1/93 - 12/31/93

5%

1/1/03 - 6/30/03

4¼%

1/1/93 - 6/30/93

6½%

7/1/02 - 12/31/02

5¼%

7/1/92 - 12/31/92

7.0%

1/1/02 - 6/30/02

5½%

1/1/92 - 6/30/92

6%

7/1/01 - 12/31/01

5%

7/1/91 - 12/31/91

8½%

1/1/01 - 6/30/01

6%

1/1/91 - 6/30/91

8%

7/1/00 - 12/31/00

7¼%

7/1/90 - 12/31/90

9.0%

1/1/00 - 6/30/00

6¾%

1/1/90 - 6/30/90

8½%

7/1/89 - 12/31/89

9%

1/1/89 - 6/30/89

9¾%

7/1/88 - 12/31/88

9¼%

1/1/88 - 6/30/88

9%

7/1/87 - 12/31/87

8%

1/1/87 - 6/30/87

7%

7/1/86 - 12/31/86

8½%

1/1/86 - 6/30/86

9¾%

7/1/85 - 12/31/85

10%

1/1/85 - 6/30/85

12%


ATTACHMENT TO FECA CIRCULAR NO. 10 – 02

Back to FECA Circular No. 10-02Back to Top of FECA Circular No. 10-02

DEBT MANAGEMENT INTEREST RATES

1/1/10 – 12/31/10

1%

 

 

1/1/09 - 12/31/09

3%

7/1/08 - 12/31/08

3%

1/1/08 - 6/30/08

5%

1/1/07 - 12/31/07

4%

7/1/06 - 12/31/06

4%

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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 01/01/84

Not applicable


ATTACHMENT TO FECA CIRCULAR NO. 10 – 02

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FECA CIRCULAR NO. 10-03

Issue Date: January 29, 2010


Expiration Date: December 31, 2010


Subject: Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately Owned Automobiles Necessary to Secure Medical Examination and Treatment.

Background: Effective January 1, 2010, the mileage rate for reimbursement to Federal employees traveling by privately-owned automobile reduced to 50 cents per mile by GSA. No restriction is made as to the number of miles that can be traveled. As in the past, determination has been made to apply the applicable rate to disabled FECA beneficiaries traveling to secure necessary medical examination and treatment.

Applicability: Appropriate National Office and District Office personnel.

Reference: Chapter 5-0204, Principles of Bill Adjudication, Part5, Benefit Payments, Federal (FECA) Procedure Manual and 5 USC 8103.

Action: The Central Bill Pay (CBP) facility has updated their system to reflect the new rates. Since there is no action required at the District Office level, the rates are being provided for informational purposes only.

 

The following is a list of the historical mileage rates used to reimburse claimant travel expense:

01/01/1995 - 06/06/1996
06/07/1996 - 09/07/1998
09/08/1998 - 03/31/1999
04/01/1999 - 01/13/2000

01/14/2000 - 01/21/2001
01/22/2001 - 01/20/2002
01/21/2002 - 12/31/2002
01/01/2003 - 12/31/2003
01/01/2004 - 02/03/2005
02/04/2005 - 08/31/2005
09/01/2005 - 12/31/2005

01/01/2006 - 01/31/2007
02/01/2007 - 03/18/2008
03/19/2008 - 07/31/2008
08/01/2008 - 12/31/2008
01/01/2009 - 12/31/2009
01/01/2010 - Current

30.0 cents per mile
31.0 cents per mile
32.5 cents per mile
31.0 cents per mile

32.5 cents per mile
34.5 cents per mile
36.5 cents per mile
36.0 cents per mile
37.5 cents per mile
40.5 cents per mile
48.5 cents per mile

44.5 cents per mile
48.5 cents per mile
50.5 cents per mile
58.5 cents per mile
55.0 cents per mile
50.0 cents per mile

Disposition: This Bulletin should be retained in Chapter 5-0204, Principles of Bill Adjudication, Federal (FECA) Procedure Manual.

 

Douglas Fitzgerald
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 10-04

January 29, 2010


SUBJECT: Dual Benefits - FERS Cost of Living Adjustments


For the first time since the enactment of Cost-of-Living (COLA) increases in 1975, there will not be a raise in the benefits issued by the Social Security Administration (SSA) for 2010. This is due to the fact that there was no increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of 2008 to the third quarter of 2009, as reported by the Bureau of Labor Statistics. The CPI-W percentage of increase sets the amount of the SSA COLA, so the lack of increase results in no increase to SSA benefits.

Since there is no increase to account for, there will be no change to the amounts currently being offset for Federal Employees' Retirement System (FERS) Dual Benefits deductions.

The historical SSA cost of living adjustments are as follows:

12/01/2009 - 11/30/2010
12/01/2008 - 11/30/2009
12/01/2007 - 11/30/2008
12/01/2006 - 11/30/2007
12/01/2005 - 11/30/2006
12/01/2004 - 11/30/2005
12/01/2003 - 11/30/2004
12/01/2002 - 11/30/2003
12/01/2001 - 11/30/2002
12/01/2000 - 11/30/2001
12/01/1999 - 11/30/2000
12/01/1998 - 11/30/1999
12/01/1997 - 11/30/1998
12/01/1996 - 11/30/1997
12/01/1995 - 11/30/1996
12/01/1994 - 11/30/1995

0.0%
5.8%
2.3%
3.3%
4.1%
2.7%
2.1%
1.4%
2.6%
3.5%
2.4%
1.3%
2.1%
2.9%
2.6%
2.8%

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 10-05

Issue Date: March 24, 2010


Expiration Date: March 24, 2011


Subject: Early disability management in 2010 Decennial Census claims.

Background: The Department of Commerce is responsible for conducting the Decennial Census and employs enumerators and crew leaders to gather statistical data through interviews with property residents. The Bureau of the Census expects to hire approximately one million individuals with temporary appointments not to exceed 180 days. These employees will work an average of 84 hours during a four to five week period, one week of which will be training. The peak employment period is April through June 2010. Because of the large number of temporary workers being hired, there will not necessarily be limited duty positions available for those who are injured on the job. OWCP is therefore piloting a new early disability management process that will attempt to return these temporary employees to suitable work quickly and appropriately.

Purpose: To provide guidance to claims staff, Staff Nurses and Rehabilitation Specialists on early disability management in Census claims under the pilot project.

Applicability: All National Office staff and District Office claims personnel, Staff Nurses and Rehabilitation Specialists.

Actions:

1. The assignment of nurses will be handled differently under this pilot project. COP nurses will be assigned earlier and have a more in-depth role in the management of the Census claims. Currently, a case does not automatically become eligible for a COP nurse assignment unless the claimant has stopped work for at least 15 days and has not returned to work. Beginning with the iFECS release on March 29, 2010, Census cases will be eligible for automatic assignment 7 days after the claimant stops work. The case will actually show up for assignment on day 8. The Staff Nurse (SN) should assign all COP cases on a daily basis.

Census will not be using the CA-3 to report a return to work (RTW); therefore, if a claimant returns to work after the CA-1 has already been submitted, Census will call the appropriate district office to report the RTW. The person taking the call should immediately update the RTW field in iFECS so that a COP nurse is not assigned. A telephone message (CA-110) should not be sent since the information needs to be entered on the day it is received; however, a closed CA-110 should be created documenting the call and return to work date. Entering a RTW date (prior to the data run on the night of day 7) will prevent the case from showing up as eligible for assignment on day 8.

Beginning with the March 29, 2010 iFECS release, agencies will be able to see that a COP nurse has been assigned to one of their cases by checking for a new flag in the Agency Query System (AQS).

It is possible that a claimant may stop work after the CA-1 has already been submitted, which makes that case ineligible for automatic COP nurse assignment. In these cases, Census can request that a nurse be assigned (after checking AQS to verify that a COP nurse has not already been assigned). The Field Nurse (FN) [or Telephonic Case Manager (TCM) if a FN cannot be assigned] is the available option at that point, if the case has been or can be accepted.

If the following criteria are met, Census may ask for a nurse assignment:

  • The claimant is currently out of work and there is no projected RTW date, or the projected RTW date is at least 1 week into the future; or
  • The claimant has been released to light duty but no light duty is available.

If these criteria have been met, Census will contact the applicable office via fax with a standardized request. The request submitted by the Census will contain the following information:

  • Claimant information to include name, case number and date of injury (DOI);
  • RTW information – date stopped work and anticipated RTW date, or an indication that no anticipated RTW date has been provided;
  • Agency contact person and telephone number; and
  • Whether light duty is available and if so how many hours and the type.

Each district office will determine the best way to channel these requests for the most effective use of resources in that particular office, but one contact person will be established for each office. That contact person will receive the faxed requests and track them to be sure that appropriate actions are taken.

The first step is to expedite adjudication.

2. COP Nurses will be expected to do more than just obtain RTW dates and close the case. In these cases, the COP nurse will be expected to take the following actions:

a) Make contact with the claimant, employing agency and physician's office.

b) From the claimant, obtain a brief history of injury, history of treatment and current work status, as well as attending physician contact information.

c) From the agency, confirm work status, find out if light duty is available, and confirm the date the claimant's position was expected to end.

d) From the attending physician's office, obtain verbal history of treatment and expected treatment plan, and provide OWCP address for submission of reports and ACS contact information to be used should the claim be approved. The nurse should also advise whether job modifications can be made, and, if appropriate, fax a CA-20 requesting that it be completed and submitted to OWCP.

e) The COP nurse will also make recommendations about assignment of a FN.

Once a COP nurse has been assigned, he or she will have 7 days to submit a closure report. Two new Census COP reports will be used for this purpose (one for RTW cases and one for cases with no RTW). These reports contain fields for information that the COP nurse is expected to obtain.

After obtaining this information, the COP Nurse should close the case, complete the report, and submit it to OWCP within 7 days of assignment. Upon receipt of a COP nurse report indicating no RTW, only partial RTW, or some other pending issue, OWCP will take two primary actions: 1) Claims will expedite adjudication of the case, and 2) The SN will assign a FN earlier than usual.

Each district office must determine the most effective way of communicating the COP nurse report findings to the assigned Claims Examiner (CE) so that appropriate action can be taken.

3. Case adjudication will need to be expedited in these claims so that a FN can be assigned as early as possible (when appropriate). If the claim cannot be accepted upon first review, development should be undertaken immediately. The claimant will be afforded the normal 30 day period to submit evidence but the claim should be monitored during that 30 day period so that an acceptance can be issued as soon as the supporting documentation is received. The CE should not wait until the 30 days have elapsed to review any evidence that has been submitted. However, if the claimant fails to submit evidence sufficient to warrant acceptance of the claim, the full 30 day period must be provided.

4. Field Nurses will be assigned once the claim has been accepted and continued disability is indicated. During this pilot project, FN assignment will occur within 7 days of acceptance even if the COP period has not elapsed. The FN will have the usual instructions regarding facilitating medical management and return to work, but she will also be expected to make recommendations for the assignment of a Vocational Rehabilitation Counselor (RC). On occasion, the FN and RC may be working on a claim at the same time. See below for more details on this process.

If the FN is assigned after a COP nurse assignment, the DM record will already exist. Once 45 days from DOI have elapsed, if no RTW full-time code has been entered in DM, the status code TCQ (QCM-Triage to QCM-Open) is auto populated via a nightly run and the category changes to QCM Open. The Start date and Track date are populated with the date the record is changed to QCM Open. If the claimant returns to work before the 45 days from DOI have elapsed, entry of the RTW information in DM tracking inputs the TRC status code (Closed -Triage with RTW during COP) in DM and changes the category to QCM Resolved Triage. Offices will either need to close the FN or open a new DM record if they follow Light Duty RTW with a nurse.

If the FN is assigned in a case with no prior COP nurse assignment (via a fax request from Census), the DM record should be created with a Track date equal to day 46 after the DOI for traumatic injuries (unless the case is accepted before day 46, then the Track date equals the current/start date). If the case is an occupational disease claim, the Track date should equal the date disability began.

5. Rehabilitation Counselors will be assigned earlier than usual and may, in some instances, be assigned prior to the FN concluding intervention, leading to a dual-track intervention. Dual intervention of FNs and RCs is not routinely utilized outside of catastrophic claims, but the unique circumstances and short term nature of Census employment will likely result in more disability due to limited availability of modified duty with the agency. Since private industry employment will be more common in these cases, dual tracking will lead to efficient disability management and an earlier return to work.

Dual assignment of FNs and RCs should be considered if both of the following criteria apply:

  • The claimant has a condition that will likely lead to permanent work related restrictions, which would prohibit a return to the date of injury position. The medical evidence should reflect expectations for when the restrictions will likely be permanent and the kinds of restrictions that are expected.
  • There will likely be no Census employment opportunities for an individual with the expected restrictions.

The FN will already be assigned to the case in most instances and he or she can make the recommendation to the CE when these circumstances are present. OWCP staff [the CE, SN or Rehabilitation Specialist (RS)] may also make this determination.

If these conditions exist, a rehabilitation referral should be considered. Part time referrals can be made in these cases even for placement with a new employer (since most Census workers are not full time), but the labor market survey has to support that any targeted jobs are reasonably available on a part-time basis.

  • The FN's focus in this situation is on the claimant's medical condition (obtaining permanent work tolerance limitations).
  • The RC's focus is on the early stages of plan development, to include an initial interview to gather the background information for a transferable skills analysis, a labor market survey, and perhaps vocational testing. A plan would typically not be finalized until the restrictions are considered stable and well defined.
  • To avoid any confusion with the medical providers, the FN would continue to communicate with the physician – providing information as necessary to the CE and RC. Any needed RC communication with the physician, while the FN is still assigned to the case, would flow through or be coordinated with the FN.

The FN should communicate with the SN and CE, and the RC should communicate with the RS and the CE. However, the FN and RC should also communicate with each other during this process to facilitate the best possible outcome. For example, if the RC has questions about the medical restrictions being imposed by the physician, he or she may contact the FN. This communication should be documented in both the FN and RC reports.

Once a case has been identified for dual tracking purposes, the CE should complete a referral to rehabilitation with an indication that Medical Rehabilitation is needed concurrently with FN services. When this referral is completed in iFECS, the CE should notify the SN and RS of the dual tracking.

Upon receipt of the referral, the RS should assign the case to a RC and place an M status in NRTS. The OWCP-35 to the RC will authorize 3 months and $1500 in services. The initial OWCP-3 to the RC will explain that a FN is on the claim and provide the nurse's contact information. It will explain the types of services that should be offered concurrently with the nurse services and indicate when the case should move forward in Plan Development. After the referral has been made to the RC, the CE and SN will be provided with the referral date and the RC's name and contact information. Rehabilitation Screeners are not to be utilized in these claims.

When the CE receives confirmation of the RC assignment, a letter should be sent to the claimant explaining that both a FN and RC are assigned to the claim. The letter will define the roles that each of these individuals will take as well as the claimant's responsibility to cooperate. The letter "Dual Track-Census" (in Correspondence Library) should be used for this purpose.

Any cases assigned for dual tracking must be reported monthly to the National Office.

Once the FN has obtained stable, well defined work restrictions, the nurse portion of disability management will cease and the RC will continue with the rehabilitation process.

Once the claim is in posture for plan development (i.e. stable and well defined medical restrictions are established), the RS should change the case status to D and notify the RC of the status change and applicable time frames. If this has not occurred by the end of the 3 month period allowed on the initial OWCP-3, then the case should likely be closed. Extensions are not allowed unless there is a pending work hardening or functional capacity evaluation or stable well defined work restrictions are imminently expected.

6. Closure Codes for Dual Tracking Cases

  • If the claimant happens to RTW with Census while both the FN and RC are on the case, the successful closure code will be entered in the nurse record as a successful nurse RTW.
  • If the claimant happens to RTW with a new employer while both the FN and RC are on the case, the successful closure code will be entered in the rehab record as a successful rehabilitation.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
Attachments:

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 CIRCULAR NO. 10-06

Issue Date: May 14, 2010

Expiration Date: March 24, 2011


Subject: Overpayments in cases where lesser impairment is established after a schedule award has been paid for greater impairment.

Background: On May 1, 2009, the Office began using the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), instead of the Fifth Edition. When this change occurred, FECA Bulletin 09-03 was issued. That bulletin addressed situations of lesser impairment of a schedule member after a greater award has been paid if the ratings were based on different editions of the AMA Guides. Specifically, where a calculation under the Sixth Edition results in a lower impairment rating to a schedule member than the original award under the Fifth Edition, the Office (consistent with past practice) will make the finding that the claimant has no more than the percentage of impairment originally awarded; that the evidence does not establish an increased impairment; and that an overpayment will not be declared. That bulletin has since been incorporated into the Procedure Manual.

This circular is being issued to clarify what actions are appropriate when a lesser impairment is found after a greater award has been paid when the different impairment ratings are based on the same edition of the AMA Guides.

Purpose: To provide guidance on actions to be taken in cases where a schedule award has been paid based on a certain percentage of impairment, but a later determination based on the same edition of the AMA Guides substantiates a lesser degree of impairment of the schedule member.

Actions:

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

2. In the case of Michael Reed, Docket No. 04-734 (issued October 5, 2004), the ECAB stated:

"If a claimant receives a schedule award and the medical evidence does not support the degree of permanent impairment awarded, an overpayment may be created."

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

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

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

 

DOUGLAS C. FITZGERALD
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 CIRCULAR NO. 09-01

February 15, 2009


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

The interest rate to be assessed for the prompt payment bills is 5.625 percent for the period of January 1, 2009 through June 30, 2009. This new rate has been updated in the Central Bill Payment system tables.

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 at 3.0 percent for the period of January 1, 2009 through December 31, 2009.

Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rate will be reviewed on July 1, 2009 to determine if the Treasury has changed the rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments

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

PROMPT PAYMENT INTEREST RATES

       

 

7/1/99 - 12/31/99

6½%

1/1/09 - 12/31/09

5%

1/1/99 - 6/30/99

5.0%

7/1/08 - 12/31/08

5

7/1/98 - 12/31/98

6.0%

1/1/08 - 6/30/08

4¾%

1/1/98 - 6/30/98

6¼%

7/1/07 - 12/31/07

5¾%

7/1/97 - 12/31/97

6¾%

1/1/07 - 6/30/07

5¼%

1/1/97 - 6/30/97

6%

7/1/06 - 12/31/06

5¾%

7/1/96 - 12/31/96

7.0%

1/1/06 - 6/30/06

5%

1/1/96 - 6/30/96

5%

7/1/05 - 12/31/05

4½%

7/1/95 - 12/31/95

6%

1/1/05 - 6/30/05

4¼%

1/1/95 - 6/30/95

8%

7/1/04 - 12/31/04

4½%

7/1/94 - 12/31/94

7.0%

1/1/04 - 6/30/04

4.0%

1/1/94 - 6/30/94

5½%

7/1/03 - 12/31/03

3%

7/1/93 - 12/31/93

5%

1/1/03 - 6/30/03

4¼%

1/1/93 - 6/30/93

6½%

7/1/02 - 12/31/02

5¼%

7/1/92 - 12/31/92

7.0%

1/1/02 - 6/30/02

5½%

1/1/92 - 6/30/92

6%

7/1/01 - 12/31/01

5%

7/1/91 - 12/31/91

8½%

1/1/01 - 6/30/01

6%

1/1/91 - 6/30/91

8%

7/1/00 - 12/31/00

7¼%

7/1/90 - 12/31/90

9.0%

1/1/00 - 6/30/00

6¾%

1/1/90 - 6/30/90

8½%

       

7/1/89 - 12/31/89

9%

1/1/89 - 6/30/89

9¾%

7/1/88 - 12/31/88

9¼%

1/1/88 - 6/30/88

9%

7/1/87 - 12/31/87

8%

1/1/87 - 6/30/87

7%

7/1/86 - 12/31/86

8½%

1/1/86 - 6/30/86

9¾%

7/1/85 - 12/31/85

10%

1/1/85 - 6/30/85

12%


ATTACHMENT TO FECA CIRCULAR NO. 09 – 01

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DEBT MANAGEMENT INTEREST RATES

1/1/09 - 12/31/09

3%

7/1/08 - 12/31/08

3%

1/1/08 - 6/30/08

5%

1/1/07 - 12/31/07

4%

7/1/06 - 12/31/06

4%

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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 01/01/84

Not applicable

 

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FECA CIRCULAR NO. 09-02

February 15, 2009

Subject: Dual Benefits - FERS Cost of Living Adjustments

Effective December 1, 2008, benefits issued by the Social Security Administration (SSA) will be increased by 5.8%. This requires the amount of the Federal Employees' Retirement System (FERS) Dual Benefits deduction to be increased by the same amount, to ensure the dollar-for-dollar offset remains current.

This adjustment will be made from the National Office for all cases that were correctly entered into the iFECS Compensation program. The adjustment will be effective with the periodic roll cycle beginning December 21, 2008. There will be no adjustment or overpayment declared for the period of December 1, 2008 through December 20, 2008.

The historical SSA cost of living adjustments are as follows:

12/01/2008 - 11/30/2009
12/01/2007 - 11/30/2008
12/01/2006 - 11/30/2007
12/01/2005 - 11/30/2006
12/01/2004 - 11/30/2005
12/01/2003 - 11/30/2004
12/01/2002 - 11/30/2003
12/01/2001 - 11/30/2002
12/01/2000 - 11/30/2001
12/01/1999 - 11/30/2000
12/01/1998 - 11/30/1999
12/01/1997 - 11/30/1998
12/01/1996 - 11/30/1997
12/01/1995 - 11/30/1996
12/01/1994 - 11/30/1995

5.8%
2.3%
3.3%
4.1%
2.7%
2.1%
1.4%
2.6%
3.5%
2.4%
1.3%
2.1%
2.9%
2.6%
2.8%

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 09-03

June 1, 2009


Subject: Fees for Representatives' Services - Contingency Fees

Questions have continued to arise concerning the representative fee approval process under the Federal Employees' Compensation Act (FECA). Based on 5 U.S.C. § 8127 of the FECA, its implementing regulations and procedures as well as the precedent of the Employees' Compensation Appeals Board (ECAB), the fee application approval process for representatives of FECA claimants is within the discretion of the Department of Labor's Office of Workers' Compensation Programs (OWCP) which has been delegated the responsibility of administering the FECA program. The FECA regulations at 20 CFR Part 10, Subpart H describe procedures for designating a representative as well as the fee approval process before OWCP. See 20 C.F.R. §§ 10.701-703. Pursuant to 20 C.F.R. §10.703, a fee application must be in the form of an itemized statement showing the representative's hourly rate, the number of hours worked, and specifically identifying the work performed and a total amount charged for the representation (excluding administrative costs).

Contingency fee arrangements are not permitted. OWCP considers it unacceptable for a representative to create what amounts to a contingency fee in regard to any FECA matter including schedule awards or to manipulate extremely high hourly rates after the fact in a manner that guarantees a certain percentage fee. As such arrangements essentially amount to contingency fee agreements, they do not comport with OWCP's requirements and thus are not subject to the deemed approved process. While OWCP's current FECA regulations set forth a "deemed approved" method for streamlining the fee approval process and do not specifically prohibit contingency fees, the FECA regulations clearly anticipate use of an hourly rate. In order for the deemed approved process to apply, the claimant must specifically concur with a fee request that comports with the FECA regulatory requirement of an itemized statement and a specified hourly rate.

OWCP's requirement of an itemized statement and an hourly rate in its published regulations at 20 C.F.R. 10.703 makes it apparent that OWCP does not recognize any contract or agreement between representatives and clients for payment of a fee on a contingency basis (any agreement where a client agrees to pay a representative a percentage of any monies paid or recovered as part of an OWCP claim). As noted, OWCP's current regulations anticipate use of an hourly rate. Any question of whether contingency fees were allowable was resolved when ECAB held in Angela M. Sanden, Docket No. 04-1632 (issued September 4, 2004), in a case involving fees for services before OWCP, that contingency fee arrangements are not recognized under FECA, further noting that "the attorney's contingency fee arrangement is illegal under the laws applicable to this case." Section 2-1200-5(b) of the Federal (FECA) Procedure Manual reflects ECAB's holding against the use of contingency fees in the FECA process and describes how a fee may be approved.

ECAB more recently stated in its final rule on changes in the ECAB Rules of Procedure (in rejecting a commenter's urging contingency fees be allowed in fee applications on ECAB appeals in response to ECAB's Notice of Proposed Rulemaking in the Federal Register) that "The Board has found that the use of contingency fees by attorneys handling FECA claims before OWCP is not in keeping with section 8127." ECAB cited Sanden in support of that proposition in their final rule which appears at: http://www.dol.gov/ecab/welcome.html. See F.R. Vol. 73 at 62192 (October 20, 2008). ECAB further noted in its final rule that a representative's failure to follow the statutory approval process may subject that individual to criminal sanctions. See 18 U.S.C. § 292. As ECAB's fee approval process is also based on section 8127 of FECA and the representative fee approvals for work before OWCP may be appealed to ECAB, OWCP follows ECAB's clear guidance in this matter.

Representatives utilizing retainer agreements that amount to contingency fee agreements should be advised to revise their fee agreement in accordance with these instructions. Such cases should be handled as follows:

1. Any fee application submitted by a representative in the form of a contingency fee must be returned to the representative with instructions to calculate the money owed for services rendered on an hourly basis and resubmit the fee application in the proper format as described in 20 C.F.R. §10.703.

2. When the representative resubmits the fee request, the attorney must submit a contemporaneously dated statement from the claimant that acknowledges concurrence with the fee and lists the hourly rate being charged in order for the deemed approved process to apply.

3. Any request by a claimant or representative for OWCP to issue a formal decision in order to allow an appeal should be promptly granted.

If a claims examiner receives an inquiry from a state bar association concerning OWCP's procedures on representative fee approvals (this occurs with increasing frequency), the claims examiner may provide links to the applicable statutory language, regulations and procedures but should refer further questions to the District Director who may consult with OWCP's Division of Federal Employees' Compensation (DFEC) National Office as needed in responding to such requests.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 09-04

June 1, 2009


SUBJECT: Health Benefits Insurance and Life Insurance - General Guidance

Health Benefits

When a Federal employee enters a leave without pay (LWOP) status, the employing agency is no longer able to deduct for health and life insurance premiums. If compensation for wage loss benefits is payable under the Federal Employees' Compensation Act (FECA), the responsibility for making those deductions transfers to the Office of Workers' Compensation Programs (OWCP).

Health Benefit Insurance (HBI) Enrollment Requirements

Claims with health benefit deductions should not be on the daily roll for more than 90 consecutive days. Generally, claimants who are disabled for more than 90 days should be placed on the Periodic Roll and their health benefits enrollment should be transferred-in to the servicing district office in a timely manner. The sole exception would be when the evidence in the case record clearly indicates a return to work (RTW) in the near future. Please note that timely transfer-in of health benefits (HBs) is critical, as the information entered in the Integrated Federal Employees' Compensation System (iFECS) is used to report to the Office of Personnel Management's (OPM) Centralized Enrollment Clearinghouse (CLER) system. OPM/CLER reconciles the health benefits enrollment between iFECS and the HB carriers, matching up deductions with enrollment codes. The Division of Federal Employees' Compensation (DFEC) sends information to OPM on those periodic roll/death roll (PR/DE) cases that have been transferred-in. Cases without a transfer-in will not be reported even though DFEC is making deductions for the HB premiums.

Continued discrepancies due to the lack of a transfer-in will result in the claimant's HBI being terminated by the carrier. This problem can be compounded if/when the claimant's employment is terminated by the employing agency, as it will appear to OPM/CLER that the claimant has no entitlement to health benefits and this will be transmitted to the health benefit provider. Claimants who contact the district office with concerns that their right to health benefit coverage has been terminated must receive a prompt and substantive response given that any inability to confirm health benefit eligibility may have an adverse impact on their and/or their families' ability to receive medical services. If the district office is unable to resolve any issues of entitlement promptly, the district office Fiscal Operations Officer (FOS) should contact the Chief of the Branch of Fiscal Operations, National Office for assistance.

As soon as a claimant has been placed on the periodic roll, claims staff must notify the responsible fiscal personnel in the district office. The claims staff may use the CA-73 or the iFECS referral system to notify the appropriate fiscal personnel and advise them to initiate the transfer-in action. Once the transfer-in process is complete, the HB transfer flag in iFECS should be changed to "Y" and certified. The effective date for this action is the date that the deductions began.

Circumstances other than on-going disability may also trigger the need for a transfer-in of the HB enrollment, including the following:

- If the claimant elects OWCP benefits in lieu of OPM benefits, the servicing district office should request copies of the enrollment documents (SF-2809 forms) from OPM in order to accomplish the transfer-in.

- If FECA death benefits are approved for survivors and the enrollment has already been transferred to OPM, the district office should request copies of the enrollment documents from OPM to complete the transfer-in.

- If the claimant moves and the case record is transferred to a different district office, the new district office should complete the transfer-in process since the claimant is now the responsibility of the new "payroll" office, as that term is used by OPM.

Changes to the health benefits enrollment (the HB Plan) are only made during the annual Open Season period. The exception to this rule is generally due to a "life event" such as birth, marriage, divorce, etc. See the instructions to the SF-2809 for a full listing of all exceptions. (See PM 5-0400.8)

If the claimant is in receipt of compensation for a loss of wage-earning capacity (LWEC) and the periodic payment does not cover the amount of the HB premium, the claimant should be notified and offered a plan that will cost less. If the claimant wants to continue with his/her current plan, the claimant will be required to submit the difference between the LWEC and the HB premium on a quarterly or yearly basis to maintain coverage.

Making HBI Deductions

To authorize and set up these deductions in a compensation payment, the following steps need to be taken:

Determine the code for HBI and/or Life Insurance (LI) from Section 10 on the CA-7 claim form. If the Optional Life Insurance (OLI) code is not provided, but the agency provides information detailing the level of coverage, there is an OLI chart available to determine the correct code to enter. The chart is located on the Department of Labor's website at (http://esa/owcp/dfec/jac/oli.htm). It may also be found at the OPM website, which is http://www.opm.gov/insure/life/reference/handbook/sf50tbl.asp

Determine the date on which DFEC deductions become effective. Generally, the employing agency will make deductions through the last date for which the claimant received pay. Although OWCP deductions for HBI and LI become effective on the first day of LWOP status, DFEC does not actually begin making the HBI and LI deductions until the claimant has been in receipt of compensation for 28 days. Once the claimant has received compensation for more than 28 days, deductions should be made retroactively to the date compensation started. From that point on deductions should begin on the day immediately following the ending date of the last deduction.

The iFECS Compensation system has the ability to deduct partial premiums on a daily basis or for periods of compensation less than a full pay period, but the effective date of the deductions is dependent upon the employing agency. The deductions by the employing agency may occasionally run through the end of the pay period (rather than the first day of LWOP) in which the claimant last worked. If that is the case, DFEC deductions for HBI and LI become effective the next calendar day. If this date is not apparent from the CA-7 or from other documentation in file, the employing agency should be contacted to determine the date of last deduction. Once verified, the appropriate date should be documented in the case record.

Termination of HBI Enrollment

A claimant's health benefit enrollment can be terminated if:

- the claimant returns to work in the private sector, with no LWEC. (If there is some LWEC and OWCP is continuing to pay partial benefits, the deductions can be maintained if the claimant chooses to do so unless there is a return to work with the USPS. In those cases the USPS will always make the HBI/LI deductions.)

- the claimant is no longer eligible for compensation benefits.

- the claimant/beneficiary dies. (If the claimant dies and we are accepting the widow/er's claim for death benefits, request that the name of the enrollee be CHANGED to that of the widow/er, and ensure the coverage level is appropriate.)

If a claimant requests termination of his/her health insurance it is usually irrevocable and they may not re-enroll in the Federal Employees Health Benefits (FEHB) Program. Consult the SF-2809 instructions for all of the allowable reasons for reinstatement. Note that suspension of HBI (rather than termination) is possible if the claimant is enrolling in a Medicare/Medicaid based plan such as TRICARE or CHAMPVA. In these instances a letter is sent to the claimant advising them of the actions needed to suspend or reinstate coverage.

Life Insurance

Since DFEC does not enroll claimants in life insurance or make any changes to existing enrollments, any inquiries about enrollment should be referred to the claimant's employing agency, OPM, or the Office of Federal Employees Group Life Insurance (OFEGLI).

Basic Life Insurance (BLI)

Federal employees are automatically enrolled in BLI on the date employment begins unless they waive the coverage. However it cannot be assumed that every employee has BLI coverage. Deductions should only be made for BLI if DFEC receives verification that the claimant does in fact have the coverage. Note that premiums for BLI are free for all claimants with a date of injury prior to January 1, 1990. Deductions should be made for any claim with a date of injury after this date. Lastly, BLI premium deductions automatically stop at age 65. The BLI coverage then begins to reduce at a rate of 2% per month, until it reaches 25% of its value. Though the claimant is not paying premiums, they will always maintain that 25% coverage. Should the claimant die after the BLI coverage is reduced, the beneficiary/survivor will be entitled to whatever reduction level the BLI has reached at the time of death.

Optional Life Insurance (OLI)

In order to be eligible for OLI, the claimant must also be enrolled in BLI, unless the date of injury is prior to January 1, 1990. In that case the BLI coverage is free, so there is no need to key the deduction. The premiums for OLI are withheld until the claimant reaches age 65, and then they will automatically stop at the first full periodic roll payment after the claimant's 65th birthday. However, the claimant can elect to continue their Option B and/or Option C coverage past age 65. This is a "Post 65 Election" and it is open to all claimants who currently have Option B and/or C life insurance coverage. Note that this is not an opportunity to enroll in life insurance and elect coverage. A notice is sent to the claimant by DFEC two months prior to their 65th birthday warning them that their coverage will stop unless they contact OPM and elect to continue it. Should they elect to continue coverage past age 65, OPM will notify DFEC of the election and the level of coverage that is being maintained. Currently it is only possible to elect to continue Options B and C; Option A will always stop at age 65.

Post Retirement Basic Life Insurance (PRBLI)

At age 65, BLI coverage reduces by 75% in increments of 2% per month. Federal employees who retired or separated from Federal employment and continue to receive benefits from either DFEC or OPM on or after December 9, 1980, have the option of paying an extra premium for No Reduction or 50% Reduction in BLI, which is PRBLI. If the claimant selects a 50% reduction, coverage will reduce in 2% increments per month to the coverage option chosen. Claimants must elect this coverage when separated or retired from federal employment (usually after twelve months in LWOP status). DFEC is notified of this election via Form RI 76-13 from OPM and coverage is effective immediately. The deductions and coverage will continue until death or the claimant elects to reduce coverage. Note that prior to age 65, the claimant must pay for BOTH BLI and PRBLI if they elect it. At age 65 the BLI deduction will stop, though the PRBLI deductions will continue.

Upon notification of a PRBLI election, the claims examiner should adjust the periodic roll payment to include PRBLI and have the adjustment certified. The "75% reduction" option is free, and the "50% Reduction" and "No Reduction" options are calculated by iFECS. You must use the annual salary provided by OPM on the RI 76-13 form for PRBLI. This is considered the "final" annual salary for life insurance purposes. That figure should always be used when keying LI deductions, even if it is different from the annual salary used to calculate compensation.

Dental and Vision Insurance (FEDVIP)

Unlike health benefits and life insurance deductions, there is currently no process for Dental and Vision deductions to be added into the existing periodic roll payment by the claims examiner. This action must be taken by the National Office, and it is done when notified of coverage via a monthly update from OPM. Once notified, the National Office will add the deductions to the claimant's periodic roll payment and no action is required by the district office.

As with life insurance, DFEC does not enroll claimants in Dental/Vision benefits or make any changes to existing enrollments. Should the claims examiner receive a question from a claimant concerning this coverage, they should be advised to contact the FEDVIP program directly at (877) 888-3337. The claimant should indicate that they receive workers' compensation benefits so that their coverage can be added to the monthly update process noted above.

If the periodic roll payment is deleted and later re-entered for some reason, the Dental/Vision deduction will not be saved during the re-entry of the plate. Since it cannot be entered locally, the Chief of the Branch of Fiscal Operations, National Office must be contacted for assistance. Seek local guidance on your point of contact to initiate this communication with the National Office.

 

DOUGLAS C. FITZGERALD
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 CIRCULAR NO. 09-05

August 26, 2009


SUBJECT: Release of Documents from Federal Employees' Compensation (FECA) Files

This circular is intended to provide guidance in situations where information or copies of information are requested from a claimant's FECA case file. While such requests may come from the claimant or his/her authorized representative, the Department of Labor or employing agency Office of Inspector General, claimant's former spouse or other entity, this circular focuses primarily on what information may be requested by the employing agency and when it may be provided. Because FECA case files are governed by the Privacy Act of 1974 and because FECA case file documents contain Personally Identifiable Information (PII), great care must be taken in handling requests for information. The extent to which information may be released out of a FECA case file is governed by the Privacy Act. Descriptions of the agency's role in the claims process are set forth in the FECA statute, its implementing regulations, and guidance such as the program Procedure Manuals and the Agency Handbook, CA-810. While the agency is not a party to the claim, the agency plays a critical role in the FECA process, particularly in return to work; it may request and receive documentation, including medical reports, to fulfill its role in the claims process.

Background:

All records relating to claims for FECA benefits are covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1. Information from the FECA file may only be released pursuant to a need to know within DOL, a published routine use, a signed Privacy Act waiver, or a court order from a court of competent jurisdiction. Release of information in accordance with a routine use must be consistent with the purpose for which the file was created, which is the administration of the FECA case.

The FECA regulations at 20 C.F.R. § 10.11 make clear that the protection, release, inspection and copying of records covered by DOL/GOVT-1 should be carried out in accordance with the rules, guidelines and provisions of Subpart A of the FECA regulations, as well as those contained in 29 C.F.R. parts 70 and 71, which are the Department's regulations implementing the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a) respectively, as well as with the notice of system of records and routine uses published in the Federal Register. The Office of Workers' Compensation Programs (OWCP) has determined that records covered by DOL/GOVT-1 may not be used in connection with a personnel action absent consent of the subject of the record. It is not permissible to use or release FECA documents in connection with personnel matters unless they have first obtained the claimant's written consent. Any questions an agency has concerning the disclosure of FECA-related documents or uses of such documents by the agency should be referred to the OWCP for resolution. 63 Federal Register 56752, 56753 (October 22, 1998).

A "routine use" authorizes disclosing information from the FECA claim file without first obtaining the claimant's permission—such disclosure is acceptable because the routine use is listed and published in the Privacy Act Systems Notice for DOL/GOVT-1, and because OWCP has concluded that the anticipated use of the document is consistent with the purpose for which the information was collected. These routine uses include: sending the record to medical providers asked by OWCP to examine or treat the claimant; providing relevant information about the nature and mechanism of the injury or illness to health and safety officials within the employing agency1; providing relevant documents to nurses and rehabilitation counselors assigned by OWCP to work on the case; providing documents to employing agency personnel (but only for purposes related to the claim, and not for other reasons such as personnel actions); providing documents pertaining to the factual circumstances of the case to credit bureaus; and others. A listing of the universal routine uses which apply to all Department of Labor (DOL) system of records can be found at http://www.dol.gov/sol/privacy/intro.htm. A listing of the routine uses specific to DOL/GOVT-1 can be found at http://www.dol.gov/sol/privacy/dol-govt-1.htm. [See DOL Privacy Act System of Record Notices, 67 FR 16825, at 16827-16828 (April 8, 2002).] Routine use b for DOL/GOVT-1 authorizes release of case file information "To federal agencies that employed the claimant at the time of the occurrence or recurrence of the injury or occupational illness in order to verify billing, to assist in administering the FECA, to answer questions about the status of the claim, to consider rehire, retention or other actions the agency may be required to take with regard to the claim or to permit the agency to evaluate its safety and health program."

Handling requests:

1. Regarding general requests from employing agencies, OWCP's Division of Federal Employees' Compensation (DFEC) may grant requests from agencies for records pertaining to their employees. If records are to be released, Claims Examiners (CEs) should ensure that the requestor is agency-authorized, and should require proper identification before releasing only that information directly relevant to the request. For example, if an agency needs to formulate a job offer and needs to know a claimant's medical restrictions, relevant medical reports may be released. Blanket release of the entire case record is not appropriate, except to an investigative body (DOL Office of Inspector General (OIG) or Employing Agency OIG), or to an Agency Injury Compensation Specialist who must understand that indiscriminate or widespread further release of the FECA record within the employing agency is not authorized or permitted by OWCP/DFEC.2

2. Employing agency personnel who inquire about releasing claims-related material from their files should be referred to 20 C.F.R. 10.10-10.13, as well as paragraph 9-2 of Injury Compensation for Federal Employees (Publication CA-810).

3. An agency representative may ask to inspect files at the district office. OWCP will accommodate all such requests subject to logistical and physical limitations, including reasonable advance notice of the visit and a list of cases to be reviewed. Once the agency representative has presented satisfactory identification, requested documents from the FECA claim file may be released. However, the agency representative must provide a separate statement regarding the reason for any requested documents for each FECA claim for which copies of documents are requested. Release of complete case records to employing agencies will occur very infrequently and the employing agency must establish a reasonable need for such a request.

4. Release of documents within the FECA case record to employing agencies is a permitted routine use. However, the Office may decline to release information not pertinent to the investigation or audit or may request the agency to provide additional rationale for requesting the information.

5. While documents within the FECA case record may be released to employing agencies, the use of these copies must be consistent with the reason the information was collected. In practice, this means that the use must be connected in some way with the compensation claim. Absent truly unusual circumstances (such as a FECA claimant's improper actions in the FECA claim forming the basis of a disciplinary action and with explicit DOL permission), agencies may not use copies of information from claim files in connection with EEO complaints, disciplinary actions or other administrative actions without the employee's consent.

6. A request for copies of documents contained in the FECA case record received from an employing agency must contain a reason for the request. If the reason stated is consistent with the purpose for which the information was collected, such copy requests will generally be honored. The CE is not required to determine whether the evidence of record indicates the claimant is currently capable of returning to work before providing the employing agency injury compensation specialist (or an individual performing those duties) with current medical reports for the stated purpose of attempting re-employment of the injured worker.

7. Whether in writing or in person, the agency representative may make a copy request using a standard request form attached to this Circular, or may use any signed statement which includes the required information. All such copy requests will be included in the FECA case record.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

 

Attachement 09-05

EMPLOYING AGENCY REQUEST FOR COPIES OF DOCUMENTS FROM FECA CASE RECORDS (place in case file)

Claim Number: __________________________________

Claimant Name: _________________________________

As an authorized representative of ___________________ I am requesting a copy of the following documents from the above noted FECA claim record:

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

These copies are being requested for the following reason(s):

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

I understand that the use of these document copies must be consistent with the reason for which they were collected and may not be used in connection with personnel actions without the employee's consent.

 

Signature: ________________________________________

Date: ____________________________________________

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FECA CIRCULAR NO. 08-01

December 15, 2007


SUBJECT: Debt Collection – Classification of Aged Delinquent Debts as Currently Not Collectable (CNC)

Pursuant to Office of Management and Budget (OMB) Circular No. A-129, and recent policy released by the Department's Office of the Chief Financial Officer (OCFO), the iFECS Debt System will re-classify aged delinquent debts. Specifically, all debts which remain delinquent for two years or more, including those referred to the U.S. Treasury, will be re-classified as "Currently Not Collectable" or "CNC". While this re-classification will remove the debts from the active debt balance that the Program maintains, per OMB and OCFO guidance, the debts will remain eligible for recoupment.

It will be the responsibility of the DFEC National Office to re-classify these debts as they become eligible for CNC status. Debts in CNC status will continue to be reported in the Receivables Report, under a separately defined reporting category. In addition, these debts remain eligible for both Treasury offset and cross-servicing. Should funds be recovered by Treasury on a CNC debt, monies will be applied to the debt in the same manner as all delinquent debts.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 08-02

December 31, 2007


SUBJECT: Dual Benefits - FERS Cost of Living Adjustments

Effective December 1, 2007, benefits issued by the Social Security Administration (SSA) will be increased by 2.3%. This requires the amount of the Federal Employee Retirement System (FERS) Dual Benefits deduction to be increased by the same amount, to ensure the dollar-for-dollar offset remains current.

This adjustment will be made from the National Office for all cases that were correctly entered into the iFECS Compensation program. The adjustment will be effective with the periodic roll cycle beginning December 23, 2007. There will be no adjustment or overpayment declared for the period of December 1, 2007 through December 22, 2007.

The historical SSA cost of living adjustments are as follows:

12/01/2006 - 11/30/2007
12/01/2005 - 11/30/2006
12/01/2004 - 11/30/2005
12/01/2003 - 11/30/2004
12/01/2002 - 11/30/2003
12/01/2001 - 11/30/2002
12/01/2000 - 11/30/2001
12/01/1999 - 11/30/2000
12/01/1998 - 11/30/1999
12/01/1997 - 11/30/1998
12/01/1996 - 11/30/1997
12/01/1995 - 11/30/1996
12/01/1994 - 11/30/1995

3.3%
4.1%
2.7%
2.1%
1.4%
2.6%
3.5%
2.4%
1.3%
2.1%
2.9%
2.6%
2.8%

 

DOUGLAS C. FITZGERALD
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 CIRCULAR NO. 08-03

January 31, 2008


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

The interest rate to be assessed for the prompt payment bills is 4.75 percent for the period of January 1, 2008 through June 30, 2008. This new rate has already been updated in the Central Bill Payment tables.

The rate for assessing interest charges on debts due the government has also changed effective January 1, 2008. The interest rate for assessing interest charges on debts due the government is now 5.0 percent for the period of January 1, 2008 through December 31, 2008. The interest rate tables in the iFECS Debt System have been updated to reflect these changes.

Ordinarily, the rate of interest charged on debts due the government is only changed in January and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rates are reviewed each June and if the rate has changed another Circular will be published to advise all appropriate personnel of the new rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

 

Attachments

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

PROMPT PAYMENT INTEREST RATES

7/1/07 - 12/31/07

5¾%

1/1/07 - 6/30/07

5¼%

7/1/06 - 12/31/06

5¾%

1/1/06 - 6/30/06

5%

7/1/05 - 12/31/05

4½%

1/1/05 - 6/30/05

4¼%

7/1/04 - 12/31/04

4½%

1/1/04 - 6/30/04

4.0%

7/1/03 - 12/31/03

3%

1/1/03 - 6/30/03

4¼%

7/1/02 - 12/31/02

5¼%

1/1/02 - 6/30/02

5½%

7/1/01 - 12/31/01

5%

1/1/01 - 6/30/01

6%

7/1/00 - 12/31/00

7¼%

1/1/00 - 6/30/00

6¾%

 

 

7/1/99 - 12/31/99

6½%

1/1/99 - 6/30/99

5.0%

7/1/98 - 12/31/98

6.0%

1/1/98 - 6/30/98

6¼%

7/1/97 - 12/31/97

6¾%

1/1/97 - 6/30/97

6%

7/1/96 - 12/31/96

7.0%

1/1/96 - 6/30/96

5%

7/1/95 - 12/31/95

6%

1/1/95 - 6/30/95

8%

7/1/94 - 12/31/94

7.0%

1/1/94 - 6/30/94

5½%

7/1/93 - 12/31/93

5%

1/1/93 - 6/30/93

6½%

7/1/92 - 12/31/92

7.0%

1/1/92 - 6/30/92

6%

7/1/91 - 12/31/91

8½%

1/1/91 - 6/30/91

8%

7/1/90 - 12/31/90

9.0%

1/1/90 - 6/30/90

8½%

   

7/1/89 - 12/31/89

9%

1/1/89 - 6/30/89

9¾%

7/1/88 - 12/31/88

9¼%

1/1/88 - 6/30/88

9%

7/1/87 - 12/31/87

8%

1/1/87 - 6/30/87

7%

7/1/86 - 12/31/86

8½%

1/1/86 - 6/30/86

9¾%

7/1/85 - 12/31/85

10%

1/1/85 - 6/30/85

12%


Back to FECA Circular No. 08-03Back to Top of FECA Circular No. 08-03

DEBT MANAGEMENT INTEREST RATES

1/1/07 - 12/31/07

4%

7/1/06 - 12/31/06

4%

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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 01/01/84

not applicable

Back to FECA Circular No. 08-03Back to Top of FECA Circular No. 08-03


Back to FECA Circulars Table of ContentsBack to FECA Circulars Table of Contents


FECA CIRCULAR NO. 08-04

March 31, 2008


SUBJECT: DFEC PROTOCOL STATEMENT – OIG AUDITS, EVALUATIONS AND INVESTIGATIONS

Federal agencies' increased awareness of the monies spent on workplace injuries under the Federal Employees' Compensation Act (FECA) has prompted agencies and their respective Office of Inspectors General (OIG) to look for ways to reduce costs, return more people to work and increase identification and prevention of fraud in the program. Consequently the Division of Federal Employees' Compensation (DFEC) is receiving an increasing number of requests for information from the OIG community as they perform audits, evaluations, inspections and investigations. While, as a program, we want to be fully cooperative with the OIGs, OIG projects must be coordinated in a way that does not interfere with our ability to perform our mission. It is important that DFEC approach these requests with a consistent and coherent process that ensures that DFEC coordinates, cooperates and supports these requests in a manner that preserves program resources and avoids duplication of effort.

Each district office will designate a point of contact (POC) for all OIG requests. The designee should be easily accessible and readily available to the OIG representative. These names will be provided to the OIG community for use solely for this purpose.

It is important to differentiate between types of IG requests such as:

1) Investigations of a single case or medical provider.
Such investigations are normally directed toward a single case or a single medical provider where a potential violation of law is under investigation. Agency IG investigate fraud cases involving their own agency employees/former employees and may also investigate related medical provider fraud in such cases.

2) Audits and evaluations
Audits and evaluations tend to review a specific process or processes. Data mining is an audit function. An IG is permitted to audit only its own agency's processes. The only data that could be made available would pertain solely to the requesting agency's cases; the primary focus of such an evaluation is the agency's part in the FECA process. (The Department of Labor Office of Inspector General has overall audit responsibility for the FECA program, as FECA is a DOL administered program.)

Single case investigations

The OIG should provide advance notice to the district's POC when coming into the office to review cases. The necessary lead time will be dependent on local usage of the viewing kiosk and may be as much as three weeks for a non-emergency review. Case records may also be supplied on encrypted CD-ROM if the case is fully imaged. When an employing agency IG investigator requests to view a case record, he/she will be required to sign a brief statement prior to gaining access to the file to the effect that access to the file is being requested based on an investigation into a potential violation of law. These statements will not be placed in the individual case records but should be maintained by the district's POC in a separate file.

Investigative memoranda (IM) and supporting documentation should not be placed in the DFEC case record until the investigation is completed. However, a decision cannot be rendered that considers evidence in an IM until the IM and any supporting documentation is included in the case record. Our longstanding policy, as set forth in the OWCP Procedure Manual, Part 1-0400.7(a)(1)(b), states that "Most documents that originate with an investigative agency and are given to OWCP with the expectation that OWCP act on them, become releasable as a part of the case file. The only exception would be for witness statements that would jeopardize the privacy of the witness." As the Privacy Act requires that a FECA claimant is entitled to a copy of his/her case record upon request, it follows that a claimant is entitled to receive the investigative materials (including videotapes) that are part of the case file.

Of course, not all investigations will lead to criminal prosecution. When IMs are referred to the district office, a designated individual should review each IM to determine if the investigation establishes inconsistencies or calls into question the validity of the medical evidence, the severity of the employment injury or the reported work restrictions or whether it establishes unreported work activity. Such documentation of misrepresentation of physical disability does not result in immediate termination of compensation. However, it will be placed in the file and used for future case management actions such as an amendment to the Statement of Accepted Facts or second opinion medical examination. (See FECA PM 2-0402.6.) The Employees' Compensation Appeals Board now requires that a claimant be notified if a videotape is being provided to a doctor performing an OWCP-directed medical examination. See J.M., ECAB Docket No. 2006-0661 (April 25, 2007) (OWCP "has the responsibility to make the claimant aware that it is providing videotape evidence to a medical expert.")

OIGs may be asked to differentiate between questionable physical disability and unreported work activity. Memoranda reflecting possible questionable physical disability will be considered a Report of Investigation rather than an IM. IMs will be specifically assigned and tracked in each district office. However, Reports of Investigation will not be tracked, although the district office may expect the OIG to confirm with the POC that the Report of Investigation was fully reviewed for possible claims action. Physical evidence of investigations submitted to DFEC should be in an easily viewable format; currently Windows Media Player compatible. DFEC will maintain the security of the physical evidence.

Should the claims examiner discover actual or suspected abuse or fraud in FECA claims, an OWCP referral to OIG will be made based on instructions contained in the FECA Procedure Manual at PM 2-0402.7 and PM 2-0402.8.

Audit and evaluation processes

An IG is permitted to audit its own agency's processes. Much of the information necessary for official investigative purposes should be contained in the weekly, monthly and quarterly extracts provided to each agency's compensation management office. The weekly extracts contain case management, bill payment and compensation payment detail data; monthly extracts contain new case-create data; quarterly extracts contain agency chargeback data. We will not duplicate our efforts to reproduce these data runs. The OIG should be referred to their agency's injury compensation management program coordinator. However, if the audit requires data that is not routinely sent by OWCP to the employer, the agency OIG should schedule a meeting with the DFEC Deputy Director to discuss the request. The discussion will cover the project's objectives, clarify the types of data needed and identify the format for receiving them. This initial meeting is intended to pinpoint data needs and availability, thereby reducing additional data requests to OWCP and preserving program resources while supporting these requests. The OIG should also notify DOL OIG Assistant Inspector General for Audit (AIGA) of the planned work.

Any single case investigation requests received by the district office's POC that cross district office jurisdictional lines must be forwarded to the DFEC Deputy Director for review in order to avoid repetition of data runs and to pinpoint the OIG needs. Additionally, any data requests for audit or evaluation purposes should be forwarded to the DFEC Deputy Director for review and response. This allows DFEC to track these requests closely and to explain fully to the various OIG offices what information is available in the system and what the information means.

All OWCP records relating to claims for benefits, including copies of such records maintained by an employer, are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act (5 U.S.C. § 552) and the Privacy Act of 1974 (5 U.S.C. § 552a). OWCP information is available to be used by employing agencies only for purposes consistent with the routine uses in OWCP's system of records for FECA information, DOL/GOVT-1. Requests from an agency for materials in a case file should include the specific reason for requesting the information.

 

DOUGLAS C. FITZGERALD
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)

Back to FECA Circular No. 08-04Back to Top of FECA Circular No. 08-04


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FECA CIRCULAR NO. 08-05

August 15, 2008


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

The interest rate to be assessed for the prompt payment bills is 5.125 percent for the period of July 1, 2008 through December 31, 2008. This new rate has already been updated in the Central Bill Payment tables.

The rate for assessing interest charges on debts due the government has also changed effective July 1, 2008. The interest rate for assessing interest charges on debts due the government is now 3.0 percent for the period of July 1, 2008 through December 31, 2008. The interest rate tables in the iFECS Debt System have been updated to reflect these changes.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments

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

PROMPT PAYMENT INTEREST RATES

7/1/08 – 12/31/08

5%

1/1/08 – 6/30/08

4¾%

7/1/07 - 12/31/07

5¾%

1/1/07 - 6/30/07

5¼%

7/1/06 - 12/31/06

5¾%

1/1/06 - 6/30/06

5%

7/1/05 - 12/31/05

4½%

1/1/05 - 6/30/05

4¼%

7/1/04 - 12/31/04

4½%

1/1/04 - 6/30/04

4.00%

7/1/03 - 12/31/03

3%

1/1/03 - 6/30/03

4¼%

7/1/02 - 12/31/02

5¼%

1/1/02 - 6/30/02

5½%

7/1/01 - 12/31/01

5%

1/1/01 - 6/30/01

6%

7/1/00 - 12/31/00

7¼%

1/1/00 - 6/30/00

6¾%

 

 

7/1/99 - 12/31/99

6½%

1/1/99 - 6/30/99

5.00%

7/1/98 - 12/31/98

6.00%

1/1/98 - 6/30/98

6¼%

7/1/97 - 12/31/97

6¾%

1/1/97 - 6/30/97

6%

7/1/96 - 12/31/96

7.00%

1/1/96 - 6/30/96

5%

7/1/95 - 12/31/95

6%

1/1/95 - 6/30/95

8%

7/1/94 - 12/31/94

7.00%

1/1/94 - 6/30/94

5½%

7/1/93 - 12/31/93

5%

1/1/93 - 6/30/93

6½%

7/1/92 - 12/31/92

7.00%

1/1/92 - 6/30/92

6%

7/1/91 - 12/31/91

8½%

1/1/91 - 6/30/91

8%

7/1/90 - 12/31/90

9.00%

1/1/90 - 6/30/90

8½%

   

7/1/89 - 12/31/89

9%

1/1/89 - 6/30/89

9¾%

7/1/88 - 12/31/88

9¼%

1/1/88 - 6/30/88

9%

7/1/87 - 12/31/87

8%

1/1/87 - 6/30/87

7%

7/1/86 - 12/31/86

8½%

1/1/86 - 6/30/86

9¾%

7/1/85 - 12/31/85

10%

1/1/85 - 6/30/85

12%


ATTACHMENT TO FECA CIRCULAR NO. 08 – 05


Back to FECA Circular No. 08-05Back to Top of FECA Circular No. 08-05

DEBT MANAGEMENT INTEREST RATES

7/1/08 - 12/31/08

3%

1/1/08 - 6/30/08

5%

1/1/07 - 12/31/07

4%

7/1/06 - 12/31/06

4%

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

1/1/01 - 12/31/01

6%

1/1/00 - 12/31/00

5%

 

 

1/01/99 - 12/31/99

5%

1/01/98 - 12/31/98

5%

1/01/97 - 12/31/97

5%

1/01/96 - 12/31/96

5%

7/01/95 - 12/31/95

5%

1/01/95 - 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 01/01/84

not applicable


ATTACHMENT TO FECA CIRCULAR NO. 08 – 05


Back to FECA Circular No. 08-05Back to Top of FECA Circular No. 08-05


Back to FECA Circulars Table of ContentsBack to FECA Circulars Table of Contents


FECA CIRCULAR NO. 07-01

February 1, 2007


SUBJECT: Dual Benefits - FERS

Reference is made to FECA Bulletin 97-9, where the procedures for computing FERS Dual Benefits are outlined. Action item 3 indicates a point of contact at SSA who was performing the necessary computations for OWCP. These computations are currently assigned to a number of modules based on the last two digits of the SSN as follows:

Phone

FAX

Module 1

00-16

Pat Shahverdian

410-965-9388

410-597-0498

Module 2

17-32

Zorita Shivers

410-965-8063

410-966-6782

Module 3

33-49

Dennis Profili

410-966-5566

410-965-8054

Module 4

50-66

Shirley Davis

410-965-9425

410-965-9409

410-965-6030

Module 5

67-82

Wanda Russell

410-965-5255

410-966-5552

410-965-6539

Back to FECA Circular No. 07-01Back to Top of FECA Circular No. 07-01


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FECA CIRCULAR NO. 07-02

August 1, 2007


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

The interest rate to be assessed for the prompt payment bills is 5.25 percent for the period of January 1, 2007 through December 31, 2007. This new rate has already been updated in the Central Bill Payment tables.

The rate for assessing interest charges on debts due the U.S. Government changed in June 2006, despite the increase in January 2006. The interest rate for assessing interest charges on debts due the U.S. Government is now 4.0 percent for the period of July 1, 2006 through December 31, 2007. The interest rate tables in the iFECS Debt System have been updated to reflect these changes.

Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rates are reviewed each June, and if the rate has changed another Circular will be published to advise all appropriate personnel of the new rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

Douglas Fitzgerald
Director for
Federal Employees' Compensation

Attachments

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

PROMPT PAYMENT INTEREST RATES

7/01/07 - 12/31/07

5.750%

1/01/07 - 6/30/07

5.250%

7/01/06 - 12/31/06

5.750%

1/01/06 - 6/30/06

5.125%

7/01/05 - 12/31/05

4.500%

1/01/05 - 6/30/05

4.250%

   

7/01/04 - 12/31/04

4.500%

1/01/04 - 6/30/04

4.000%

7/01/03 - 12/31/03

3.125%

1/01/03 - 6/30/03

4.250%

7/01/02 - 12/31/02

5.250%

1/01/02 - 6/30/02

5.500%

7/01/01 - 12/31/01

5.875%

1/01/01 - 6/30/01

6.375%

7/01/00 - 12/31/00

7.250%

1/01/00 - 6/30/00

6.750%

 

 

7/01/99 - 12/31/99

6.500%

1/01/99 - 6/30/99

5.000%

7/01/98 - 12/31/98

6.000%

1/01/98 - 6/30/98

6.250%

7/01/97 - 12/31/97

6.750%

1/01/97 - 6/30/97

6.375%

7/01/96 - 12/31/96

7.000%

1/01/96 - 6/30/96

5.875%

7/01/95 - 12/31/95

6.375%

1/01/95 - 6/30/95

8.125%

 

 

7/01/94 - 12/31/94

7.000%

1/01/94 - 6/30/94

5.500%

7/01/93 - 12/31/93

5.625%

1/01/93 - 6/30/93

6.500%

7/01/92 - 12/31/92

7.000%

1/01/92 - 6/30/92

6.875%

7/01/91 - 12/31/91

8.500%

1/01/91 - 6/30/91

8.375%

7/01/90 - 12/31/90

9.000%

1/01/90 - 6/30/90

8.500%

 

 

7/01/89 - 12/31/89

9.125%

1/01/89 - 6/30/89

9.750%

7/01/88 - 12/31/88

9.250%

1/01/88 - 6/30/88

9.375%

7/01/87 - 12/31/87

8.875%

1/01/87 - 6/30/87

7.625%

7/01/86 - 12/31/86

8.500%

1/01/86 - 6/30/86

9.750%

7/01/85 - 12/31/85

10.375%

1/01/85 - 6/30/85

12.125%

Back to FECA Circular No. 07-02Back to Top of FECA Circular No. 07-02

DEBT MANAGEMENT INTEREST RATES

1/01/07 - 12/31/07

4%

7/01/06 - 12/31/06

4%

1/01/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

   

1/01/04 - 12/31/04

1%

1/01/03 - 12/31/03

2%

7/01/02 - 12/31/02

3%

1/01/02 - 06/30/02

5%

1/01/01 - 12/31/01

6%

1/01/00 - 12/31/00

5%

 

 

1/01/99 - 12/31/99

5%

1/01/98 - 12/31/98

5%

1/01/97 - 12/31/97

5%

1/01/96 - 12/31/96

5%

7/01/95 - 12/31/95

5%

1/01/95 - 06/30/95

3%

 

 

1/01/94 - 12/31/94

3%

1/01/93 - 12/31/93

4%

1/01/92 - 12/31/92

6%

1/01/91 - 12/31/91

8%

1/01/90 - 12/31/90

9%

   

1/01/89 - 12/31/89

7%

1/01/88 - 12/31/88

6%

1/01/87 - 12/31/87

7%

1/01/86 - 12/31/86

8%

1/01/85 - 12/31/85

9%

 

 

Prior to 01/01/84

not applicable

Back to FECA Circular No. 07-02Back to Top of FECA Circular No. 07-02


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FECA CIRCULAR NO. 06-01

March 1, 2006


SUBJECT: Dual Benefits - FERS Cost of Living Adjustments

Effective December 1, 2005, benefits issued by the Social Security Administration (SSA) will be increased by 4.1%. This requires the amount of the Federal Employee Retirement System (FERS) Dual Benefits deduction to be increased by the same amount, to ensure the dollar-for-dollar offset remains current.

This adjustment will be made from the National Office for all cases that were correctly entered into the iFECS Compensation application. The adjustment will be effective with the periodic roll cycle beginning January 22, 2006. There will be no adjustment or overpayment declared for the period of December 1, 2005 through January 21, 2006.

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

The historical SSA cost of living adjustments are as follows:

12/01/2004 - 11/30/2005
12/01/2003 - 11/30/2004
12/01/2002 - 11/30/2003
12/01/2001 - 11/30/2002
12/01/2000 - 11/30/2001
12/01/1999 - 11/30/2000

12/01/1998 - 11/30/1999
12/01/1997 - 11/30/1998
12/01/1996 - 11/30/1997
12/01/1995 - 11/30/1996
12/01/1994 - 11/30/1995

2.7%
2.1%
1.4%
2.6%
3.5%
2.4%

1.3%
2.1%
2.9%
2.6%
2.8%

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 06-02

March 1, 2006


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

The interest rate to be assessed for the prompt payment bills is 4.5 percent for the period of January 1, 2006 through December 31, 2006.

The rate for assessing interest charges on debts due the U.S. Government has changed this year, for the first time since January 2004. The interest rate for assessing interest charges on debts due the U.S. Government is now 2.0 percent for the period of January 1, 2006 through December 31, 2006.

Ordinarily, the rate of interest charged on debts due the U.S. Government is only changed in January and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of more than two percent. The rates are reviewed each June and if the rate has changed another Circular will be published to advise all appropriate personnel of the new rate.

Attached to this Circular is an updated listing of both the Prompt Payment and Debt Management interest rates from January 1, 1985 through the current date.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments

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

ATTACHMENT TO FECA CIRCULAR NO. 06-02

PROMPT PAYMENT INTEREST RATES

1/1/06 - 12/31/06

4 1/2%

   

1/1/05 - 12/31/05

4 1/4%

1/1/04 - 12/31/04

4.0%

7/1/03 - 12/31/03

3 1/8%

1/1/03 - 6/30/03

4 1/4%

7/1/02 - 12/31/02

5 1/4%

1/1/02 - 6/30/02

5 1/2%

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%


Back to FECA Circular No. 06-02Back to Top of FECA Circular No. 06-02

DEBT MANAGEMENT INTEREST RATES

1/1/06 - 12/31/06

2%

1/1/05 - 12/31/05

1%

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

 

 

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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FECA CIRCULAR NO. 06-03

July 1, 2006


SUBJECT: Loss of Wage Earning Capacity Calculations Under Performance Based Alternative Pay Systems

While there have been alternative personnel systems in the federal government for over 20 years, the Department of Homeland Security's use of performance based alternative pay systems for several of their occupational series has raised the possibility that more federal employees will be moving out of the General Schedule and into alternative pay systems.

There are numerous performance-based pay systems but they all link individual base pay and bonuses to performance. Most options do not provide for any automatic pay increases. These pay systems give managers more flexibility in setting the pay for new hires as well as current employees.

In performance based pay systems (also known as pay banding), agencies may collapse the 15 General Schedule grades into a smaller number of pay ranges. For example, the GS grades could be collapsed into 4 bands which cover GS 1-5, GS 6-11, GS 12-13 and GS 14-15. Once the bands are defined, the agency may hire an employee at any pay amount within a band and determine how employees move within and across bands.

In calculating wage earning capacity, if the date of injury (DOI) position was paid based on a specific grade and step, there is no change in the process for determining the current pay rate for the date of injury position. However, as a result of the fluidity of pay rates within pay bands, there may not be a definitive grade and step for the date of injury pay rate. When calculating a loss of wage earning capacity in cases where a specific grade and step were not assigned to the date of injury position, the Claims Examiner (CE) will first need to determine the injured employee's DOI pay rate as a percentage of the appropriate band.

Once that percentage has been established, the current pay rate for the date of injury job (as entered in the Shadrick formula) will be the same percentage of the current pay range for the band in which the employee was being paid on the DOI. For example, if the employee was hired in the second band (with a range of $28,085 through $60,049) at a salary of $50,000, then they earn 69% of the total range. If the current range of the band in which they were being paid on the DOI is $35,000 through $72,000, then $60,530 will be the current salary since it is 69% of the new range. When calculating the percentage of the pay band range, normal rounding rules apply.

The steps for determining the percentage of the band on the date of injury are as follows:

1) Determine the range of the DOI pay band by deducting the lowest salary from the highest salary within that band.
2) Deduct the salary at the low end of the band from the actual salary paid to the claimant.
3) Take the amount from step 2 and divide it by the amount from step 1. This will give you the percentage of the salary range that the claimant earned on the date of injury.

The steps for determining the current salary for the date of injury job are as follows:

1) Determine the range of the current salaries for the DOI pay band by deducting the lowest salary from the highest salary within that band.
2) Multiply the amount from step 1 by the percentage of the band that the employee was earning at the date of injury.
3) Add the number obtained in the second step to the lowest salary in the current range for the appropriate band. This will give you the current pay rate for the job held when injured.

Once the current pay rate for the job held when injured is calculated according to the above instructions, it can be entered into the Shadrick formula so that a loss of wage earning capacity can be paid to the claimant.

References: FECA Procedure Manual Chapters 2-0814, 2-0900 and 2-0901

 

DOUGLAS C. FITZGERALD
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 CIRCULAR NO. 06-04

August 28, 2006


SUBJECT: Case Management and Coding of Beryllium Claims

As noted in the MEDGUIDE as well as FECA Circular 05-03, there are several medical conditions which may result from exposure to beryllium, the more common being the pulmonary form or Chronic Beryllium Disease (CBD). These resources provide guidance on the initial adjudication of beryllium related claims, including medical facilities that provide the necessary objective testing.

Beryllium sensitization occurs in a subset of the people exposed to beryllium. In some of the workforce studies, the rate of CBD among those individuals with Beryllium Sensitivity (BeS) varied from 14 to 100%. The course of CBD is variable, ranging from a stable condition controllable with or without prescription medications to a poorly controlled, progressive condition that is debilitating and can be fatal. Because beryllium sensitization can progress to CBD in the presence or absence of added exposure, and, additionally, CBD can be treated, it is important to detect the pathologic changes in the lungs as early as possible. As a result, medical care will include the costs of periodic monitoring for the development of CBD where the accepted diagnosis is BeS.

Medical monitoring for patients with BeS includes:

Physical examination (CPT codes 99241 - 99245)
Chest x-ray (CPT codes 71010 - 71030)
CAT scan of the thorax (CPT codes 71250 - 71260)
Pulmonary function studies (CPT codes 94010, 94060-94070, 94375)
Diffusing capacity studies (CPT codes 94720 - 94725)
Exercise tolerance test (CPT codes 94620 - 94621)
Complete blood count (CPT codes 85004 - 85032)
Multiple blood chemistries (CPT codes 80048 - 80053)
Arterial blood gases (CPT codes 82800 - 82820)
Bronchoscopy (CPT codes 31622 - 31629, 31632-31633)
     w/trans bronchial lung biopsy w/wo fluoroscopic guidance
     w/trans bronchial needle aspiration biopsy
     w/biopsy (rigid or flexible)
Serum neopterin

These tests are usually performed on a yearly basis when the claimants are stable and symptom-free. However, if changes in the clinical condition of a claimant are noted, the treating physician may want to perform some or all of these tests at shorter intervals. A definitive diagnosis of CBD hinges on the presence of granulomas and/or mononuclear cell infiltrates in a lung biopsy, so a bronchoscopy and bronchial lung biopsy are the most important tests.

Unlike a more common condition, there are a limited number of physicians who specialize in the testing and treatment of beryllium related illnesses. When a request for authorization of testing or treatment is received (to include travel authorization when necessary), it should be reviewed and approved when reasonable. In order to insure that bills are paid correctly, please use the following acceptance codes:

Beryllium Sensitivity - V81.4
Chronic Beryllium Disease (Berylliosis) - 503

These codes are active in Code It Fast and should be utilized on all beryllium claims. The related objective testing and treatment authorizations are a part of the treatment suites for these codes, simplifying claims management.

 

DOUGLAS FITZGERALD
Director for
Federal Employees' Compensation

Distribution: List 1 (Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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FECA CIRCULAR NO. 05-01

November 19, 2004


SUBJECT: DUAL BENEFITS - FERS COLA

Effective December 1, 2004, Social Security Benefits will be increased by 2.7%. This 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 for all cases that were correctly entered into the ACPS Program. The adjustment will be effective with the periodic roll cycle beginning January 23, 2005. There will be no adjustment or overpayment declared for the period December 1, 2004 through January 22, 2005.

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

SSA COLA's are as follows:

Effective December 1, 2004

2.7%

Effective December 1, 2003

2.1%

Effective December 1, 2002

1.4%

Effective December 1, 2001

2.6%

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%

 

E. MARTIN WALKER
Acting 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 CIRCULAR NO. 05-02

January 16, 2005


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

The interest rate to be assessed for the prompt payment bills is 4.25 percent for the period of January 1, 2005 through December 31, 2005.

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 1.0 percent for the period of January 1, 2005 through December 31, 2005.

Ordinarily, the rate of interest charged on debts due the government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of 2.0 percent or more. The rates are reviewed each June, and if the rate has changed another Circular will be published to advise all appropriate personnel of the new rate.

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

 

JAMES L. DEMARCE
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)

PROMPT PAYMENT INTEREST RATES

1/1/05 - 12/31/05

4 1/4%

1/1/04 - 12/31/04

4.0%

7/1/03 - 12/31/03

3 1/8%

1/1/03 - 6/30/03

4 1/4%

7/1/02 - 12/31/02

5 1/4%

1/1/02 - 6/30/02

5 1/2%

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%


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DMS INTEREST RATES

1/1/05 - 12/31/05

1%

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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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FECA CIRCULAR NO. 05-03

March 1, 2005


SUBJECT: Adjudication of Claims - Claims Related to Beryllium Exposure

It has come to the attention of OWCP that there is likely to be an increase in claims filed under the FECA for illness and disability resulting from work-related exposure to beryllium. The Occupational Safety and Health Administration (OSHA) has provided extensive information regarding this issue in its OSHA Hazard Information Bulletins and pamphlets. The most likely federal employees to claim FECA coverage due to industrial exposure to beryllium are those of the Department of Energy and certain categories of employees at OSHA.

When OWCP receives claims for beryllium sensitivity, chronic beryllium disease (CBD) or other illnesses related to industrial exposure to beryllium, claims examiners (CEs) should note that even minimal or one instance of exposure can result in beryllium sensitization. The Med Guide (available in FolioViews) has been updated with information that will assist CEs in the adjudication of these cases. In addition, CEs are reminded that the 5 basic requirements necessary to establish entitlement under the FECA apply to these claims. Guidance for adjudicating occupational disease cases as set forth in the FECA Procedure Manual, Chapter 2-0806, should be used to establish the period, length, and levels of exposure in beryllium claims. Claims for schedule awards should also be processed in accordance with established regulations and procedures. It should be noted, however, that because this disease is closely connected to industrial exposure, CEs need not be concerned with possible non-work-related exposure if exposure during Federal employment is documented.

Although receipt of benefits under the Energy Employees' Occupational Illness Compensation Program Act (EEOICPA) does not affect a claimant's entitlement to benefits under the FECA, 42 U.S.C. § 7385c(c), the EEOICPA should serve as the primary payer of medical benefits for these FECA cases.

 

DOUGLAS FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 05-04

April 18, 2005


SUBJECT: Bill Pay – Revised Form CA-16

To better inform medical providers and streamline our billing process, Form CA-16 now includes language outlining the specific types of services it covers and those it excludes. Under the heading "Information for Physician," the following three sentences were added to the subsection "Your Authorization":

This form covers office visits and consultations, laboratory work, hospital services (including inpatient), x-rays, MRIs, CT scans, physical therapy, emergency services (including surgery) and chiropractic services. Chiropractic services are limited to charges for physical examinations and x-rays to diagnose a subluxation of the spine and treatment consisting of manual manipulation of the spine to correct a subluxation demonstrated by x-ray.

This form does not cover elective and non-emergency surgery, home exercise equipment, whirlpools, mattresses, spa/gym membership and work hardening programs.

Although Form CA-16 was revised in February of this year, OWCP will continue to accept both versions of the form through June 30, 2005. However, effective July 1, all bills submitted under a Form CA-16 will be processed by ACS in accordance with the new coverage policy outlined above.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 05-05

March 18, 2005


SUBJECT: Due Process – Revised Appeal Rights

As a part of our ongoing efforts to improve customer service, the Appeal Request Form has been updated in order to clarify the hearing options that are available to potential appellants. Specifically, under "ORAL HEARING," the revised form advises potential appellants of the following:

Depending on your geographical location, the issue involved in your case, the number of hearing requests in your area, and at the discretion of the hearing representative, we may be able to expedite your appeal by offering you a telephone hearing. If OWCP deems your case suitable for teleconference and you are open to this option, please check here. _____

This policy affords claimants who reside in areas where hearings are not frequently held the opportunity to receive an expedited hearing. It should be noted, however, that this option is granted solely at the Office's discretion.

 

DOUGLAS FITZGERALD
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 CIRCULAR NO. 05-06

July 1, 2005


SUBJECT: Imaged FECA Cases to Be Provided in Portable Document Format (PDF) on CD-ROM

In accordance with the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Privacy Act, with implementing regulations at 29 C.F.R. Parts 70 (FOIA) and 71 (Privacy) governing the production or disclosure of information or materials, it has been the practice of OWCP to provide copies of FECA case files to claimants and/or their authorized representatives. Up to the present time, this has involved the provision of paper copies only. However, with the recent use and proliferation of electronic media for access, research, documentation, and storage of records, it has become reasonable to expect and request access to one's records in an electronic format. In response to such requests from claimants or their representatives, OWCP has considered the issue and determined that FECA case records that are already in an imaged format can be readily reproduced at a reasonable cost in portable document format (PDF) on CD-ROM.

Regarding the provision of case records on CD-ROM, it was necessary to develop a consistent policy as well as a method for handling them expeditiously. To that end, this circular provides guidance for the uniform handling of requests for copies of imaged case records on CD-ROM. The procedures described below will be effective within thirty (30) days of the release of this circular. Please ensure that proper notification/training is provided to all district office personnel that are affected.

When a written request for a copy of a FECA case record on CD-ROM under the FOIA/Privacy Act is received, the responsible claims examiner (RCE) should first determine whether the case record contains sensitive documents that should not be released directly to the claimant. Where the RCE determines that the case file contains such evidence, a paper copy without the sensitive documents will be provided in lieu of a CD-ROM in order to preserve the integrity of the electronic record. The RCE should follow established procedures for releasing the redacted medical evidence to the physician designated by the claimant. This policy applies regardless of whether it is the claimant or his/her representative who makes the copy request.

As a consequence of the regulations found at 29 C.F.R. § 71.6(a) and 20 C.F.R. § 70.40(c)(4), the OWCP may only charge claimants for a CD-ROM copy of the case record where the following two conditions exist: (1) the claimant has recently received a printed copy of his or her entire file and (2) the cost of providing a CD-ROM copy will exceed $15.00.

The ability to create CD-ROM copies of electronic case records within iFECS will be restricted to only two DFEC employees per district office. The local iFECS Site Manager (ISM) will provide the authorized individuals with access to the appropriate function (i.e., Imaging Allow Printing to any Printer - No Bulk Printer Restriction) once the DFEC iFECS Supplemental Privileges Request Forms have been completed. (The authorized individuals must have Adobe® Acrobat® 6.0 or later installed on their computers in order to create case record copies in PDF format.)

In those instances where it is appropriate to release a CD-ROM copy, the RCE should refer the matter, in writing, to the designated district office staff dedicated to handling such requests. The referral from the RCE will also instruct this person to indicate both the appropriate file number and date the case record copy was created on the CD label template prior to printing it.

The designated staff person for case records production on CD-ROM will, upon receiving the instructions from the RCE, proceed to create a copy of the case record by way of a secure PDF file, and then copy it onto a CD-ROM.

For the purposes of security, privacy, and quality assurance, the completed CD-ROM copy should be returned to the RCE for inspection before release to the requestor. The RCE should ensure that the PDF file is password protected, and the appropriate file number and date appear on the CD label. Along with the CD-ROM copy, the RCE will send the appropriate Privacy Act-response form letter (located in the Correspondence Library) to the requestor, which includes instructions on how to access the secure PDF file.

 

DOUGLAS C. FITZGERALD
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 CIRCULAR NO. 05-07

August 9, 2005


SUBJECT: Dual Benefits - FERS

Reference is made to FECA Bulletin 97-9, where the procedures for computing FERS Dual Benefits are outlined. Action item 3 indicates a point of contact at SSA who was performing the necessary computations for OWCP. These computations are currently assigned to a number of modules based on the last 2 digits of the SSN as follows:

MOD

SSN RANGE

MGR

FAX #

01

00-16

JOHN WIGGINS

410-965-5882

02

17-32

ZORITA SHIVERS

410-966-6782

03

33-49

WANDA RUSSELL

410-965-8054

04

50-66

SHIRLEY DAVIS

410-965-6030

05

67-82

JOHN REUISING

410-966-5552

06

83-99

PINA CULOTTA

410-965-6029


Please change the SSA contact information in Bulletin 97-9 to reflect these assignments.

 

DOUGLAS C. FITZGERALD
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 CIRCULAR NO. 04-01

November 28, 2003


Subject: Forms - Electronic Submission

The 2003 Government Paperwork Elimination Act (GPEA) requires that federal government agencies make submissions of information from members of the public electronically-interactive where practical. The Division of Federal Employees Compensation (DFEC) has developed a process for electronic submission of certain forms from members of the public to DFEC. At this time, the only forms that can be electronically submitted are those that are submitted directly to the office by the initiator, and require only one signature.

The forms that have been identified for electronic submission to DFEC include the CA-20, Attending Physicians Report; OWCP-5a, Work Capacity Evaluation Psychiatric/Psychological Conditions; OWCP-5b, Work Capacity Evaluation Cardiovascular/Pulmonary Conditions; OWCP-5c, Work Capacity Evaluation for Musculoskeletal Conditions; and OWCP-44, Rehabilitation Action Report.

Effective immediately, when an initiator accesses one of the forms identified above on the DFEC web site they will be asked whether they want to submit the form electronically. The initiator will be advised that a digital signature is required for electronic submission. The initiator will be provided the opportunity to apply for a digital signature at no cost if they do not already have a signature registered to their PC.

The initiator will be directed to the digital signature trust (DST) site to register for a digital signature certificate. Obtaining a digital signature certificate will take 5-10 business days. Once the certificate is received, the user can go back to the forms page, fill in the form on-line and submit it electronically to DFEC.

After passing a validation process, the form will be forwarded to a shared email address monitored by National Office staff. It will be received by DITMS, copied to an archive database, and forwarded to the central mailroom facility for imaging.

Forms submitted electronically will contain the submitter's name with small text annotating DST validation. District office staff should treat the electronic signature as a valid signature.

 

DEBORAH B. SANFORD
Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 04-02

January 27, 2004


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

The interest rate to be assessed for the prompt payment bills is 4.0 percent for the period of January 1, 2004 through December 31, 2004.

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 1.0 percent for the period of January 1, 2004 through December 31, 2004.

Ordinarily, the rate of interest charged on debts due the government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of 2.0 percent or more. The rates are reviewed each June, and if the rate has changed another Circular will be published to advise all appropriate personnel of the new rate.

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

 

DEBORAH B. SANFORD
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)

Attachments

PROMPT PAYMENT INTEREST RATES

1/1/04 - 12/31/04

4.0%

7/1/03 - 12/31/03

3 1/8%

1/1/03 - 6/30/03

4 1/4%

7/1/02 - 12/31/02

5 1/4%

1/1/02 - 6/30/02

5 1/2%

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%


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DMS INTEREST RATES

1/1/04 - 12/31/04

1%

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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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FECA CIRCULAR NO. 04-03

February 9, 2004


SUBJECT: DUAL BENEFITS - FERS COLA

Effective December 1, 2003, Social Security Benefits were increased by 2.1%. That required the amount of the FERS Dual Benefits Deduction to be increased by the same amount.

This adjustment was made from the National Office for all cases that were correctly entered into the ACPS Program. The adjustment was made effective with the periodic roll cycle beginning January 25, 2004. There will be no adjustment or overpayment declared for the period December 1, 2003 through January 24, 2004.

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

SSA COLA's are as follows:

Effective December 1, 2003

2.1%

Effective December 1, 2002

1.4%

Effective December 1, 2001

2.6%

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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FECA CIRCULAR NO. 03-01

December 2, 2002


SUBJECT: DUAL BENEFITS - FERS COLA

Effective December 1, 2002, Social Security Benefits were increased by 1.4%. This required the amount of the FERS Dual Benefits Deduction to be increased by the same amount.

This adjustment was made from the National Office for all cases that were correctly entered into the ACPS Program. The adjustment was made effective with the periodic roll cycle beginning December 1, 2002.

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

SSA COLA's are as follows:

Effective December 1, 2002

1.4%

Effective December 1, 2001

2.6%

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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FECA CIRCULAR NO. 03-02

September 5, 2003


SUBJECT: SELECTED ECAB DECISIONS FOR JANUARY – MARCH, 2002

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

The subjects addressed include: forfeiture of compensation – effective date; performance of duty – premises doctrine; performance of duty – recreational and/or social activities; performance of duty – travel, special mission, or temporary duty; reconsideration – one-year time limitation

 

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)

 

FORFEITURE OF COMPENSATION – EFFECTIVE DATE

Brady L. Fowler, Docket No. 00-850, Issued January 11, 2002

In this case, the Office properly determined that the claimant had forfeited his right to compensation under section 5 U.S.C. § 8148. The interesting issue, however, was whether the Office had terminated the claimant's compensation on the proper effective date.

The Office terminated the claimant's compensation effective January 20, 1999, which was the date the claimant formally entered his plea of guilty to violating 18 U.S.C. § 1920. In its decision, the Board determined that the Office had improperly set the effective date of termination, explaining:

"Section 8148 specifically states that the forfeiture shall be effective as of the date of the conviction. The Office's regulation, found at 20 C.F.R. § 10.17, states that when a beneficiary under the Act pleads guilty to defrauding the government in connection with a claim for benefits, "the beneficiary's entitlement will terminate effective the date... the guilty plea is accepted...." In this case, the Office used January 20, 1999 as the effective date of the forfeiture. However, the record shows that, while appellant entered his plea of guilty on January 20, 1999, the plea was not accepted by the judge until April 8, 1999 and guilt was adjudicated at that time. The date of the conviction is not the date appellant entered his guilty plea but the date that the plea was accepted and guilt adjudicated. The effective date of forfeiture of compensation, therefore, was April 8, 1999."

Consequently, it is imperative to remember that when terminating compensation under 5 U.S.C. § 8148, the claimant does not forfeit his or her right to compensation until the actual date of conviction.

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PERFORMANCE OF DUTY – PREMISES DOCTRINE

Londa Lee, Docket No. 01-1183, Issued January 22,2002

The issue in this case was whether the claimant had sustained an injury while in the performance of duty.

The claimant filed a notice of traumatic injury alleging that she injured her right elbow and arm after tripping over a parking block. She indicated that the injury occurred at her duty station address. By letter, the Office requested that the claimant's employing agency indicate whether or not she was on premises that were owned and operated by the agency at the time of the alleged work injury. The employing agency never responded to the Office's request. By decision dated March 12, 2001, the Office denied her claim on the basis that she had failed to establish that she had sustained an injury while in the performance of duty.

In its decision, the Board detailed the Office's responsibilities when adjudicating a claim:

"In this case, the Office requested information from the employing establishment to ascertain whether the parking lot where appellant was injured was in its control. The employing establishment, however, did not respond to the Office's inquiry. Appellant should not be penalized for the failure of the Office to develop the evidence. Proceedings under the Act are not adversarial in nature nor is the Office a disinterested arbiter. While appellant has the burden to establish entitlement to compensation, the Office shares the responsibility in the development of the evidence, particularly when such evidence is of the character normally obtained from the employing establishment or other governmental source.

The Board finds that the Office must make a determination on where the injury occurred and whether that location was considered to be on the employing establishment premises. The Office may not simply conclude, in light of the employing establishment's failure to respond, that appellant has not met her burden."

Accordingly, the Board found that the case was not in posture for a decision. The Office's decision was vacated and the case was remanded.

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PERFORMANCE OF DUTY – RECREATIONAL/SOCIAL ACTIVITIES

James W. Hockaday, Docket No. 01-152, Issued March 25, 2002

The issue was whether the claimant sustained an injury in the performance of duty.

The claimant filed a traumatic injury claim alleging that on August 18, 1999 he tore his left anterior cruciate ligament and left lateral meniscus while playing basketball at a training seminar. At the time of his injury, the claimant was attending a weeklong training course at Virginia Tech University. The Office denied the claim on the basis that the claimant had not sustained an injury while in the performance of duty.

The Board found that the claimant sustained an injury while in the performance of duty, and remanded the case for further development. The Board's decision is important because of its explication of issues concerning workers injured while at employer-sponsored events:

"When the degree of employer involvement descends from compulsion to mere sponsorship or encouragement, the questions become closer and it is necessary to conduct further inquiry. This inquiry focuses on the issues of whether the employing establishment sponsored the event and whether attendance was voluntary and whether the employing establishment financed the event. The record indicates that appellant's attendance at the training course was sponsored and paid for by the employing establishment and that the costs of the picnic, including the food and the rental on August 18, 1999 of the entire Blacksburg Recreational Center and all its associated facilities and equipment, were covered by the course fees paid by the employing establishments of the participants. In addition, the picnic was included in the course schedule as a regular meal activity and a special shuttle bus was arranged to carry course attendees to and from the picnic site, which was reserved for their exclusive use. Separately, each of these factors might not support that appellant was in the course of employment. However, under the circumstances, taking all of these factors together, the employing establishment can be said to have encouraged participation through sufficient financial control to bring the picnic within the course of employment sponsorship. In addition, these factors further support a finding that the basketball game during which appellant was injured was reasonably incidental to the assigned activities of the training seminar itself and that, therefore, appellant's participation in the basketball game did not constitute the type of voluntary deviation from his regular activities which would remove him from the protection of the Act."

Accordingly, the Board ruled that the injury occurred in the performance of duty and remanded the case for further development.

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PERFORMANCE OF DUTY – TRAVEL, SPECIAL MISSION, OR TEMPORARY DUTY

Trina Bornejko, Docket No. 01-1118, Issued February 27, 2002

The claimant filed a notice of traumatic injury alleging that she injured her ankle after slipping on ice while on the way to the airport for a temporary duty assignment. On two separate occasions, the claimant indicated that the injury occurred at her son's school, where she had stopped to drop him off while on the way to the airport. The Office denied the claim on the basis that the claimant had taken herself out of the performance of duty.

The Board affirmed the Office's decision, on the basis that the claimant's actions were not "reasonably incidental" to her work activities or travel assignment, explaining:

"The Board has recognized the rule that the Act covers an employee 24 hours a day when he or she is on travel status, a temporary duty assignment, or a special mission and engaged in activities essential or reasonably incidental to such duties. However, when the employee deviates from the normal incidents of his or her trip and engages in activities, personal or otherwise, which are not reasonably incidental to the duties of the temporary assignment contemplated by the employer, the employee ceases to be under the protection of the Act and any injury occurring during these deviations is not compensable.

At the time of her February 14, 2000 injury, appellant was on travel status, on her way to the airport, away from her regular place of employment. While on travel status she is covered 24 hours a day with respect to any injury that results from activities incidental to such duties. In this case, however, appellant acknowledged to her physician on February 14, 2000 that she hurt her ankle while dropping her son off at his school. She also stated this same fact in the March 23, 2000 conference call. Taking her son to school is personal in nature and does not constitute a normal activity reasonably incidental to her employment or travel assignment. As a purely personal pursuit, such activity constitutes a deviation from the performance of duty of an individual on travel status or on a temporary duty assignment, such that the 24 hour-a-day coverage under the Act does not apply."

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RECONSIDERATION – ONE-YEAR TIME LIMITATION

Gwendolyn Thomas, Docket No. 01-1513, Issued January 18, 2002

In this case, the Office denied the claimant's request for reconsideration on the basis that the request had not been timely filed.

The Board remanded the case, holding that the Office had improperly determined that the claimant's request for reconsideration had been untimely. In its decision, the Board provides an excellent explanation of how to determine the timeliness of a reconsideration request:

"In this case, by letter dated April 12, 2001, appellant requested reconsideration of the Office hearing representative's decision dated April 12, 2000. The postmark of appellant's reconsideration request was not retained in the record. The date stamp indicates that appellant's letter was received on April 16, 2001.

It is well established under the Office's procedures that the timeliness of a reconsideration request is determined by the postmark of the envelope, but if the envelope is not available, the date of the letter itself is used. Thus, the date of appellant's letter, April 12, 2001, will be used to determine the timeliness of her request. The Board has also held that in computing a time period, the date of the event from which the designated period of time begins to run shall not be included, while the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal holiday. As such, the one-year time period for appellant's reconsideration request began to run on the day after the Office's April 12, 2000 merit decision, or April 13, 2000. Since appellant's request for reconsideration was dated April 12, 2001, her request was timely."

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FECA CIRCULAR NO. 03-03

January 15, 2003


SUBJECT: SELECTED ECAB DECISIONS FOR JULY - SEPTEMBER, 2001

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

The subjects addressed include: chiropractors – reimbursable services – transportation and incidental expenses; compensation – basic/augmented compensation – dependents; continuation of pay; idiopathic falls; medical expenses and treatment – services, appliances and supplies; medical expenses and treatment – transportation and incidental expenses; overpayments – waiver – defeat the purpose of the Act; performance of duty – deviation from duty; performance of duty – off-premises workers; performance of duty – premises doctrine; performance of duty – travel, special mission or temporary duty – deviation from duty; procedure on appeal to or review by the Board – jurisdiction of the Board; reconsideration under section 8128 – one-year time limitation; recurrences of disability – following return to light duty; time limitation (section 8122) – pre-1974, one year/five year; schedule awards – hearing loss; schedule awards – hearing loss – audiograms; termination of compensation – abandonment of suitable work.

 

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)

 

CHIROPRACTORS – REIMBURSABLE SERVICES – TRANSPORTATION AND INCIDENTAL EXPENSES

Dennis W. Johnson, Docket No. 99-1808, Issued August 22, 2001

The issue in this case was whether the Office abused its discretion in denying the claimant's request for travel reimbursement for specialized chiropractic care.

The Office accepted that the claimant sustained subluxations at C2 and T2 and chronic thoracic myofascitis and strain as a result of a March 2, 1983 work injury.

Subsequent to the acceptance of his claim, the claimant submitted travel vouchers requesting reimbursement of $7,965.04 and annotating the mileage he had incurred in obtaining treatment from the date of injury through January 1998.

By decision dated July 27, 1998, the Office authorized mileage only for a 25-mile round trip to Harvey, ND. Consequently, only $598.12 of the requested reimbursement was authorized.

The claimant argued that the local chiropractor could not provide the specialized treatment he required and the nearest chiropractor who could provide that treatment, Dr. Torson, was located in Moorehead, MN, a distance of 396 miles per treatment.

The Board noted:

"Medical expenses, along with transportation and other expenses incidental to securing medical care, are covered by section 8103 of the Act. This section provides that the United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances, and supplies likely to cure, give relief, reduce the degree or the period of any disability or aid in lessening the amount of any monthly compensation. These services, appliances and supplies shall be furnished by, or on the order of physicians and hospitals designated or approved by the Secretary.

The employee may be furnished necessary and reasonable transportation and expenses incident to securing of such services, appliances, and supplies. However, the Office has the general objective of ensuring that an employee recovers from an injury to the fullest extent possible in the shortest amount of time. The Office therefore has broad administrative discretion in choosing the means to achieve this goal. The only limitation on the Office's authority is it (sic) that of reasonableness."

The Board noted that the claimant chose to visit several chiropractors for treatment of his back condition. The closest treating chiropractor, geographically, to the claimant's home did not diagnose a subluxation as demonstrated by x-ray. Consequently, she could not be considered a physician under the Act and could not provide a valid referral to Dr. Torson. Dr. Torson, also, did not diagnose a subluxation as demonstrated by x-ray and, thus, also cannot be considered a physician under the Act. Moreover, since Dr. Torson performed services other than manual manipulation of the spine such as acupuncture, these services did not constitute reimbursable treatment.

The Board explained:

"The Act states that an employee may be furnished with necessary and reasonable transportation costs and other expenses incident to the securing of medical services. However, the determination of what is reasonable rests within the sound discretion of the Office. Reimbursable chiropractic expenses are limited to manual manipulation of the spine to correct subluxations. Thus, only chiropractors providing those services qualify for reimbursement, and any person trained as a chiropractor can provide that service. Therefore, the most reasonable chiropractic care could be obtained in the nearest town that has a chiropractor. In this case, that town would be Harvey, ND, up until February 1995 and after that the town would be Bismarck, ND. Therefore, it was reasonable that the Office reimburse only the travel costs to Harvey, ND up through January 1998."

The Board affirmed the Office's decision to reimburse mileage for a 25-mile round trip to Harvey, ND.

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COMPENSATION – BASIC/AUGMENTED COMPENSATION – DEPENDENTS

Nancy J. Masterson, Docket No. 00-1434, Issued September 11, 2001

The issue in this case was whether the claimant was entitled to augmented compensation.

The Office accepted that the claimant sustained a right fifth metatarsal fracture in the performance of duty on May 4, 1998. She was paid compensation at the 66 2/3% rate based on no dependents.

By decision dated June 18, 1999, the Office determined that the claimant's husband did not constitute a dependent and, therefore, the claimant was not entitled to augmented compensation.

As the claimant's husband was not a member of the same household and there was no indication the claimant was ordered by a court to pay support, the issue was whether the claimant was providing regular contributions to her husband's support.

The claimant paid health insurance premiums for a plan that covered both her and her husband. This amounted to approximately $75.00 per month. (The difference between the family coverage and individual coverage.) The claimant also indicated that she made monthly payments for storage rental units that included property of her husband and she had contributed to her husband's health costs on an as needed basis.

"The Board has held that, the test for determining dependency under the Act is whether the person claimed as a dependent, 'looked to and relied, in whole or in part, upon the contributions of the employee as a means of maintaining or helping to maintain a customary standard of living'. In the case of Sam Ekovich, the Board considered the situation where a spouse makes regular contributions for health insurance by paying for a health plan that covers both the employee and the spouse. In Ekovich the Board found that the spouse was not a dependent, but the decision is based on the factual finding in that case that the employee had never told his spouse that he had maintained health insurance coverage, and in addition the spouse had purchased her own coverage. Therefore the Board reasoned that the spouse could not have looked to and relied upon the contribution."

The Board remanded the case finding:

"The record requires further factual development before a determination can be made as to whether regular contributions for health insurance are sufficient to establish the husband as a dependent. There is little evidence in the record as to the financial situation of appellant's husband. Appellant indicated that her husband had surgery in 1996 and was unable to get health insurance on his own, without further explanation. Additional relevant factual information would include the husband's current employment (if any), the amount of his income and monthly expenses (including medical expenses), and opportunities to purchase health insurance on his own. Such information is necessary in order to make an appropriate determination as to whether the husband relied on the health insurance contributions to a degree sufficient to establish him as a dependent in this case."

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CONTINUATION OF PAY

Laura L. Harrison, Docket No. 01-150, Issued September 27, 2001

The issue in this case was whether the claimant was entitled to continuation of pay. The decision contains an interesting discussion of the distinction between the requirement of section 8118(a) of the Act and section 8122 of the Act.

The claimant filed a form CA-1 on July 30, 1999 for an injury that occurred on June 14, 1999. The claimant stopped work effective June 15, 1999. The Office accepted the claim for right shoulder sprain and paid compensation for wage loss. However, by decision dated August 20, 1999, the Office denied the claim for continuation of pay as the claimant "failed to give written notice of injury within 30 days of the date of injury".

The claimant argued that she filed an AFMC Form 12 within 30 days of the injury and that form satisfied all the statutory requirements of section 8119 and that her immediate supervisor had sufficient written notice of injury within 30 days of the injury.

The Board noted that, while the claimant was correct in her argument, there is a critical distinction between notice of injury and a claim for compensation:

"Section 8122 of the Act, entitled 'Time for making claim', provides that original claims for compensation for disability or death must be filed within 3 years after the injury or death unless the immediate superior had actual knowledge of the injury or death within 30 days or written notice of injury or death, as specified in section 8119, was given within 30 days. Actual knowledge and written notice of injury under section 8119 thereby serve to satisfy the statutory period for filing an original claim for compensation. This is not an issue in appellant's case because she filed her claim for compensation approximately 46 days after the injury. The Office accepted the claim as timely and paid compensation. Had appellant waited more than three years to file her claim for compensation, the AFMC Form 12 would be relevant to whether her claim was timely under section 8122.

Claims that are timely under section 8122 are not necessarily timely under section 8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a claim within 30 days of the injury. When an injured employee makes no claim for a period of wage loss within 30 days, she is not entitled to continuation of pay, notwithstanding prompt notice of injury. Appellant's AFMC Form 12 is not a claim for a period of wage loss and is not a form approved by the Secretary of Labor for purposes of claiming compensation. It provided notice of injury but is irrelevant to whether appellant is entitled to continuation of pay under 8118(a)."

The Board affirmed the Office's denial of continuation of pay. However, the Board noted that the Office's decision was misleading as it denied continuation of pay for failure to provide "notice of injury" within 30 days. The more precise wording should have been that continuation of pay was denied for failure to file a "claim" within 30 days.

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IDIOPATHIC FALLS

Adam Dumot, Docket No. 00-2317, Issued September 13, 2001

The issue in this case was whether the claimant was injured in the performance of duty.

The claimant alleged that he fractured his left hip on September 9, 1998 while getting out of his car. He alleged that he was reaching into the back of his vehicle for his canes when his left leg twisted under him and he fell to the ground. The claimant had a history of polio, colitis and left total knee replacement in 1989.

By decision dated November 6, 1998, the Office denied the claim finding that the injury was a result of a personal, non-occupational pathology and the claimant struck only the ground.

The evidence of record established that the claimant's duties required him to drive to many facilities in the course of his employment. On the date of the injury, the claimant had parked in his handicap parking space on the employing agency's premises.

The Board cited Larson:

"(A) preexisting disease or infirmity of the employee does not disqualify a claim under the 'arising out of employment' requirement if the employment aggravated the disease or infirmity to produce the death or disability for which compensation is sought. This is sometimes expressed by saying that the employer takes the employee as it finds that employee."

The Board reversed the Office's decision opining:

"Thus, the issue in this case becomes whether appellant's work duties aggravated his infirmity to produce the disability for which he is claiming compensation. Appellant was in the performance of duty when he reached for his canes while getting out of his vehicle to perform his employment duties. He fell and fractured his left hip as a result of this work activity. Therefore, the fall did not occur solely as a result of a non-occupational pathology, since there was contribution by the reaching into the back of the truck for his crutch. A review of the record shows that there is no credible evidence, either medical or factual, attributing appellant's condition to anything other than his employment. Both Drs. Bell and Anderson attributed appellant's injury to his fall at work. The evidence establishes that appellant's preexisting condition was aggravated by work factors and, thus, appellant sustained an injury while in the performance of duty."

Thus, the decision was reversed and the case remanded to the Office to determine the nature and extent of any disability causally related to the September 9, 1998 fall.

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MEDICAL EXPENSES AND TREATMENT – SERVICES, APPLIANCES AND SUPPLIES

James R. Bell, Docket No. 99-2133, Issued July 2, 2001

The issue of interest in this case was whether the Office abused its discretion in denying the claimant's request to pay for electricity and water for an authorized whirlpool spa.

The Board affirmed the Office's decision.

"As found in the Board's decision on appellant's prior appeal, the standard for the Office to apply in determining whether 'incidental' expenses, such as electricity and water for the authorized whirlpool spa in the present case is whether such expenses are necessary and reasonable. Regarding appellant's electricity and water expenses for operation of the authorized whirlpool spa, the Board stated, 'the payment of such costs as 'reasonable and necessary' for treatment of a job-related injury remains in the discretion of the Office'.

In its most recent decision on the merits of appellant's claim, issued on April 29, 1999 the Office finally acknowledged that it is 'clearly true' that water and power are necessary for the operation of the authorized whirlpool spa. The Office found that the expenses for these utilities were not reasonable on the basis that persons other than appellant could use the whirlpool spa and appellant could use it recreationally in addition to therapeutically.

The Board has recognized that the Office has broad discretion in approving services provided under section 8103 of the Federal Employees' Compensation Act, with the only limitation on the Office's authority being that of reasonableness. The Board finds that it was not unreasonable for the Office to deny appellant's request for (sic) pay for electricity and water for his authorized whirlpool spa. Although the Board on the prior appeal noted that appellant had not fully documented the costs of electricity and water, this was not the grounds on which the Board affirmed the Office's decision denying payment of these expenses. The Board found, 'While the facts in this case are such that a contrary factual conclusion might be reached, that alone does not establish that the Office abused its discretion.' This finding remains unchanged by the evidence appellant submitted subsequent to the prior appeal."

The Office's decision was affirmed.

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MEDICAL EXPENSES AND TREATMENT – TRANSPORTATION AND INCIDENTAL EXPENSES

Dennis L. Jarzomkowske, Docket No. 00-913, Issued August 7, 2001

The issue in this case was whether the Office abused its discretion in denying the claimant's requests for reimbursement of medical treatment expenses.

By letter dated June 30, 1999, the claimant requested reimbursement of $1,393.41 for expenses related to medical treatment for the period May 23 through 25, 1999 and June 20 through 22, 1999. The expenses included $284.18 for prescriptions, $10.45 for telephone calls, $16.36 for fax service, $5.96 for special delivery by certified mail and $1,076.46 for miscellaneous. The latter amount constituted payment for his daughter as she drove him from Almoquedo, New Mexico to Phoenix, Arizona and back. He claimed 120.78 hours at $7.00 an hour for his daughter's time for a total of $845.46, car maintenance of $15.00 and the daughter's meal expenses at $36.00 a day for six days for a total of $216.00. In addition, the claimant filed a travel voucher for the same period claiming total reimbursement of $1,280.52 that represented $803.52 for mileage, $465.00 in total costs for food and lodging for him and $2.00 a day for six days as an other expense.

By letter dated June 30, 1999, the Office advised the claimant that his travel voucher had been reduced to $1,104.28 for actual travel expenses including food and lodging for the claimant at the per diem rate and mileage calculated at 31¢ per mile. The Office further advised that reimbursement for telephone calls, postage or fax service was not allowed. Further, there was no medical evidence to indicate that the claimant was unable to drive as a result of his accepted skin condition and, therefore, no attendant allowance was payable.

The Board found that the Office acted within its discretion in determining the amount of the allowable reimbursement and properly calculated the amount payable for food, lodging and mileage.

The Board further stated:

"The Board has held that an attendant's allowance is appropriate when a claimant is so helpless that he is in need of constant care, as in being totally blind or being paralyzed and unable to walk. An attendant's allowance is not intended to pay an attendant for domestic and housekeeping chores such as cooking, cleaning, doing the laundry or providing transportation. In this case, there is no medical evidence that appellant is unable to care for himself or that his accepted skin condition has rendered him unable to drive. His personal decision to have his daughter accompany him to Phoenix for medical treatment is insufficient to entitle him to an allowance for this service.

The Office properly determined that appellant was not entitled to reimbursement for telephone calls, fax service and certified-mail expenses made during the trip. Section 10.401(a) provides in part that a claimant is 'entitled to reimbursement of reasonable and necessary expenses, including transportation incident to obtaining authorized medical services, appliances or supplies'. The Board has held that incidental expenses are allowable only when incurred in the course of securing medical services and supplies. The telephone calls, fax service and certified-mail expense in this case were not part of the process of securing medical services and supplies."

The Office's decision was affirmed.

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OVERPAYMENTS – WAIVER – DEFEAT THE PURPOSE OF THE ACT

Dee Egbert, Docket No. 00-994, Issued September 27, 2001

There were several issues in this case. However, the issue of interest was whether the Office abused its discretion by denying waiver of the overpayment.

The Office determined that the claimant received an overpayment in the amount of $10,869.94 because an incorrect pay rate was used for compensation payments. The Office determined that the claimant was without fault in the creation of the overpayment. By decision dated January 5, 2000, the Office found that waiver of the overpayment was not warranted as the claimant and his wife had $82,230.00 in assets and that the claimant's income exceeded expenses by more than $50.00 because his clothing expense was excessive.

The Board found that the Office abused its discretion in denying waiver of the overpayment. The Board noted that the Office failed to consider any of the claimant's alleged $400.00 per month clothing expense and did not explain their reasons for excluding the entire amount.

In addition, the Board found that the Office erred in determining that the claimant's assets exceeded the resource base set forth in the FECA Procedure Manual by improperly including the separate property of his wife.

"The definition of 'assets' in the Office's procedure manual, when compared to appellant's overpayment recovery questionnaire, shows that appellant's assets exceed this resource base only if his wife's checking, credit union accounts and stocks are included. However, appellant's wife kept her assets as separate property as they were part of an inheritance and thus retained the character of separate property under California law.

The Board finds that the Office erred in determining that appellant's assets exceeded the resource base set forth in the Office's procedure manual by improperly including the separate property of his wife. The Board has held that a spouse's assets which are separately held and which are not normally considered reasonably available to meet ordinary and necessary living expenses are not available for purposes of determining the assets of an overpaid claimant. The Office could not recover appellant's overpayment from his wife's separate property under California law or Board precedents. (Earl C. Poppel, note 15; Yolanda Librera, 37 ECAB 388 (1986); Marty Jocewicz, 37 ECAB 233 (1985)) Thus, appellant's assets do not exceed the resource base of $5,000.00 set forth in the Office's procedure manual."

The Board affirmed the Office with regard to the fact and amount of the overpayment but remanded the case for additional development on the issue of waiver.

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PERFORMANCE OF DUTY – DEVIATION FROM DUTY

Ronnie E. Banks, Docket No. 01-96, Issued July 19, 2001

The issue in this case was whether the claimant sustained an injury in the performance of duty.

The claimant, a city carrier, alleged that he was involved in a motor vehicle accident on May 6, 1999, and sustained a cervical strain and cephalgia.

The employing agency indicated that at the time of the accident the claimant was finishing his lunch break at a location that was not authorized by management. It was further noted that the accident occurred at a time other than the claimant's authorized lunch break.

The claimant advised that, at the time of the accident, he had finished his lunch and was on his way back to deliver mail. He noted that he had been eating at this particular restaurant on and off for the past three years. He further explained that he stopped for lunch late as he left the office for his route later than usual. His supervisor was aware that he took his lunch after he finished his business deliveries.

By decision dated October 28, 1999, the Office denied the claim on the grounds that the injury did not occur in the performance of duty.

The Board affirmed the Office's decision. The Board indicated:

"In the present case, the evidence of record establishes the traffic accident involving appellant, a letter carrier, occurred on May 6, 1999 at 1:55 p.m. and that appellant sustained an injury as a result. At the time of the accident, appellant was returning to his route after eating lunch at an A & W restaurant. Appellant alleges that the accident occurred at a time when he was seeking personal comfort and, therefore, the deviation from his route was insubstantial and his injury occurred in the performance of duty...

In the instant case, the employing establishment established appellant's authorized lunch stop at the Burger King restaurant. Rather than eating his lunch at Burger King, appellant deviated from his route and ate at an A & W restaurant, which was not an approved lunch spot. This case is similar to both Johnson (35 ECAB 695 1984) and Bonilla (37 ECAB 598 1986) in that appellant deviated from his accepted postal route, which removed him from being in the performance of duty at the time of the accident. Whether the employing establishment subsequently approved the A & W restaurant as an approved lunch spot is immaterial to the issue in this case. Because appellant was engaged in a deviation from his authorized route, his injury did not occur in the performance of duty."

The Office's decision was affirmed.

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PERFORMANCE OF DUTY – OFF-PREMISES WORKERS

Kathryn A. Tuel-Gillem, Docket No. 00-2124, Issued July 18, 2001

The issue in this case was whether the claimant sustained an injury in the performance of duty.

On February 1, 2000, the claimant, a rural carrier, filed a notice of traumatic injury alleging that, on that day she fractured her right ankle when she slipped on ice in her driveway while walking to her private motor vehicle.

Based on a telephone conference, the Office established that the claimant was required to use her own vehicle in her job as a rural carrier. She drove to the employing agency each morning, cased mail from three to five hours, delivered mail on her route using her vehicle, returned to the employing agency and unloaded her car, then returned home. On the morning in question, the claimant was walking on the driveway in front of her residence approaching her vehicle when she slipped on ice and fell.

By decision dated May 5, 2000, the Office denied the claim on the grounds that the injury did not occur in the performance of duty.

The Board affirmed the Office's decision.

"It is a well-settled principle of workers' compensation law that where 'the employee as part of his or her job is required to bring along his or her own car, truck or motorcycle for use during the working day, the trip to and from work is by that fact alone embraced within the course of employment'. Accordingly, an injury sustained while traveling to and from work may be within the performance of duty for that employee...

Accordingly, because rural carriers may use their own transportation to deliver their routes, which is a benefit to the employer, they may be deemed to be in the performance of their duties when they are driving their vehicles to and from their route when they are required by the employing establishment to provide their own transportation. In this case, appellant was leaving her residence and approaching her vehicle to leave for work at the time of her injury. Regardless of whether she used her private vehicle in the course of her employment, the act of leaving one's residence to get to work would remain the same and is an activity that all employees engage in. There is a presumption that the trip to work of an employee with fixed hours and place of work is no different from that of any other employee with fixed hours and place of work. However, in the case of employees furnishing their own conveyance, such as rural carriers, coverage is extended when the employee is in the vehicle and driving to and from work because she is required to take her vehicle with her to perform her regularly assigned duties. It is at the point that she enters her vehicle that she would be considered to be in the performance of her duties."

The Board affirmed the Office's decision.

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PERFORMANCE OF DUTY – PREMISES DOCTRINE

Norma H. Godier, Docket No. 01-78, Issued July 17, 2001

This decision contained a concise discussion of the premises doctrine for employees with a "fixed premises".

On October 27, 1999, the claimant was walking to her place of employment when she tripped on an uneven sidewalk and fell, sustaining fractures of both patellae, an injury to her arm and contusions to her face. The employing agency was located in three floors of a building that were leased from a private owner. After appropriate development, the Office denied the claim finding that the claimant was not injured on the premises of the employing agency and therefore was not in the performance of duty at the time of the fall.

The Board affirmed the Office's decision explaining:

"The evidence of record shows that appellant has fixed hours of work and was walking to the employing establishment when she fell. Her status, therefore, was that of a 'fixed premises' employee who is subject to the 'going and coming' rule generally applicable to such employees."

The Board further explained:

"Under the facts of the case, it also cannot be said that appellant's injury occurred on the constructive premises of the employing establishment. The Board has determined that under certain circumstances, the employment premises may be constructively extended to hazardous conditions, which are proximately located to the premises and, therefore, may be considered as hazards of the employing establishment. The main consideration in applying this rule is whether the conditions giving rise to the injury are causally connected to the employment. In this case, appellant has not shown that the sidewalk was used exclusively or principally by employees of the employing establishment for the convenience of the employer. The employing establishment did not own the sidewalk and was not responsible for the maintenance of the sidewalk. Thus appellant's injury is considered to be an ordinary, nonemployment hazard of the journey to work itself, shared by all travelers. The case record does not establish that the sidewalk used by appellant was so connected with the employing establishment as to be considered part of the premises of the employing establishment. Therefore, appellant has not established that she sustained an injury in the performance of duty."

The Office's decision was affirmed.

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PERFORMANCE OF DUTY – TRAVEL, SPECIAL MISSION OR TEMPORARY DUTY – DEVIATION FROM DUTY

William T. Bodily, Docket No. 00-1954, Issued September 25, 2001

The issue in this case was whether the claimant sustained an emotional condition in the performance of duty.

The claimant alleged post-traumatic stress as a result of being robbed at gunpoint while on travel status. The employing agency controverted the claim, indicating that the claimant and his immediate supervisor left the vicinity of their hotel and went to a nightclub and were subsequently robbed at gunpoint during a personal deviation.

"The record establishes that appellant and his supervisor, Donnie Benfield, were on temporary duty in Dallas, Texas from May 27 to 30, 1997 from their permanent duty station in Memphis, Tennessee. The men had completed their work duties on May 28, 1997 at approximately 4:00 p.m. and returned to their hotel. They left the hotel at 8:30 p.m. to find a restaurant recommended by a Dallas coworker. After driving for approximately an hour, they were unable to locate the restaurant. During this period, they made a stop at a convenience store and Mr. Benfield purchased a six pack of beer and cigarettes for their consumption 'in some of the shops on Deep Ellum'. After arriving in an area of Dallas identified by Mr. Benfield as Deep Ellum, the two men parked the car and started looking for a place to eat. After some time, they found a dining place at approximately 9:30 p.m."

Appellant and Mr. Benfield alleged that they ate dinner, had several beers and stayed to listen to music until 11:30 p.m. As they prepared to leave, appellant went to the restroom and Mr. Benfield went outside to wait. A man, later identified as Tracy Gray, approached Mr. Benfield and stated that he was having car trouble. Mr. Gray mentioned that he was originally from Memphis and Mr. Benfield discussed being on temporary duty from that city. Mr. Gray told Mr. Benfield that he had a sister or cousin who lived nearby and asked for a ride. Mr. Benfield decided to help Mr. Gray, as he indicated the house was on the way back to the hotel. At 11:40 p.m., appellant joined Mr. Benfield outside, who related Mr. Gray's situation. Appellant and Mr. Benfield indicated that they spent 20 minutes talking to Mr. Gray before getting into the car.

The men got into the car at 12:10 a.m. with appellant driving while Mr. Gray gave directions. Mr. Gray initially directed them towards Interstate 30, however, any discernable route is not available from the statement in evidence. They drove in various directions until 12:45 a.m. when Mr. Gray directed appellant to pull over. Mr. Gray produced a small handgun and demanded money from appellant and Mr. Benfield. He took $2,460.00 in cash and $100.00 in a traveler's check from appellant and $80.00 in cash from Mr. Benfield. Mr. Gray ordered the men outside the car and then drove off with the vehicle. Appellant and Mr. Benfield stated that they walked around until they found a telephone booth at 1:20 a.m. and called the police. Statements were taken and the men were subsequently escorted back to their hotel, arriving at 2:40 a.m.

The report of the Dallas police indicates that the location of the robbery was the 1700 block of South Oakland Street. The police narrative states that at approximately 2:00 a.m., appellant and Mr. Benfield were at the corner of Elm and Walton Streets when they were approached by Mr. Gray, who asked for help to jump his car. When informed they did not have jumper cables, Mr. Gray asked them to take him to get some. They got into the rental vehicle and Mr. Gray directed them south on Oakland. Mr. Gray then produced a small black handgun and demanded their money. Mr. Gray then made the two men get out of the vehicle and took the rental vehicle. Appellant and Mr. Benfield then called the police. The report notes that at approximately 9:00 a.m. Mr. Gray was apprehended in the stolen rental car along with a female passenger. The police recovered a black .380 automatic, cash in the amounts of $1,150.00 and $646.00, appellant's wallet and traveler's check and a controlled substance."

By decision dated February 19, 1998, the Office denied the claim on the grounds that the claimant was not in the performance of duty at the time of the robbery.

The Board noted:

It is not disputed that when appellant was in Dallas he was on a business trip. He was directed by his employer to be in Dallas and was clearly serving his employer's interest in making the trip. The issue is whether appellant deviated from the business trip for personal reasons.

It is well established that 'an identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial'. The initial question, therefore, is whether appellant deviated from a business trip for 'personal reasons'.

The claimant argued that, while driving with Mr. Gray they were traveling towards Interstate 30, thereby resuming the route to their hotel and completing any personal deviation.

The Board did not agree with the appellant's argument:

"The general rule is that, once a personal deviation has been completed and the main business route resumed, an employee is once again in the performance of duty. As Larson points out, 'the first step in a clear analysis of any deviation case is to draw a picture of the entire trip'. In this case, the picture drawn by appellant and Mr. Benfield is not one of clarity. The facts establish that appellant and Mr. Benfield were on a temporary duty assignment in Dallas and that they last performed duties related to their employment at 4:00 p.m. on May 28, 1997. Following their departure from the hotel for dinner, the time, place and location of their activities is not ascertainable from the record. After they left a restaurant at 11:30 p.m., appellant and Mr. Benfield met Mr. Gray, were robbed and left stranded in an unknown neighborhood. The record does not account for the approximately one and one-half hours between their departure at 12:10 a.m. with Mr. Gray and the arrival of the police at 1:35 a.m. Appellant and Mr. Benfield allege that they walked until they found a public telephone and they called the police at approximately 1:20 a.m. on May 29, 1997. Statements from appellant and Mr. Benfield further allege that the police told appellant that they were in a bad area, to remain on the street where the telephone was located and that the police would pick them up. The police arrived at approximately 1:35 a.m. on May 29, 1997, took statements and drove appellant and Mr. Benfield to their hotel.

The Board finds that appellant did not complete his personal deviation and resume the main business route until the police drove him back to his hotel. The personal deviation ceased only when the police arrived to take appellant back to the hotel. Since the aggravated robbery occurred during a deviation for purposes that were personal in nature, appellant cannot be found to have been in the performance of duty when the incident occurred. Appellant was not engaged in activities reasonably incidental to his temporary duty assignment or to any activity directed by his employer."

The Board affirmed the Office's decision.

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PROCEDURE ON APPEAL TO OR REVIEW BY THE BOARD – JURISDICTION OF THE BOARD

Anu Gupta (claiming as administrator of the estate of Krishan C. Shori), Docket No. 99-2326, Issued August 17, 2001

The Board dismissed this appeal and provided an interesting explanation of "adverse affect".

By decision dated June 8, 1999, the Office found that the position of library technician fairly and reasonably represented the claimant's wage earning capacity. The claimant appealed this decision and, subsequent to the docketing of the appeal, the claimant died.

The Board noted:

"The Board has jurisdiction to consider and decide appeals from a final decision issued by the Office. The Board further notes that, pursuant to section 501.3, any person 'adversely affected' by a final decision of the Director, or his duly authorized representative, may file an application for review of such decision by the Board. In this case, the employee died prior to the adjudication of his appeal by the Board. The record reflects that the employee was being paid compensation under a schedule award that will expire on April 10, 2002. While the Office's June 8, 1999 decision contains findings which the employee considered to be adverse, the Board notes that, under the June 8, 1999 decision, the wage-earning capacity determination would not be effective until April 10, 2002, the date the employee's schedule award will expire. The Office so informed the employee in a letter dated June 17, 1999. As the employee died prior to the expiration of his schedule award, he would not be 'adversely affected' by the June 9, 1999 wage-earning capacity determination as it never became effective prior to his death. In light of these circumstances, there remains no adverse final decision over which the Board may take jurisdiction under 20 CFR section 501.3."

The appeal was dismissed.

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RECONSIDERATION UNDER SECTION 8128 – ONE-YEAR TIME LIMITATION

Laureen Wall, Docket No. 00-2810, Issued July 19, 2001

This decision contains an explanation of when to consider the Board's decision as a merit review of the claim.

By decision dated April 15, 1996, the Office found that the weight of the medical evidence established that the claimant had no condition or disability after May 31, 1995, that was causally related to her accepted employment injury.

The Office denied a merit review of the claim as the claimant's June 25, 1997 request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

By decision issued June 1, 1999, the Board found that the claimant's June 25, 1997 request for reconsideration was untimely filed and that she failed to support her untimely request with clear evidence of error.

On May 17, 2000 the claimant again requested reconsideration. The Office again denied a merit review of the claim as the request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

The Board affirmed the Office decision noting:

"As the Board noted in its prior decision, the last merit decision issued by the Office was its April 15, 1996 decision denying appellant's claim of recurrence. The Office subsequently denied appellant's June 25, 1997 request for reconsideration, but that decision, together with the Board's June 1, 1999 review thereof, were not decisions on the merits of appellant's claim for recurrence. Rather, they were decisions on whether the Office should reopen appellant's claim for a merit review of the recurrence issue, given the untimeliness of her request. Appellant had one year from the Office's April 15, 1996 decision to request reconsideration, and just as her June 25, 1997 request for reconsideration was untimely, so too is her May 16, 2000 request for reconsideration untimely."

The Office's decision was affirmed.

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RECURRENCES OF DISABILITY – FOLLOWING RETURN TO LIGHT DUTY

Janelle Cali, Docket No. 00-402, Issued September 19, 2001

The issue in this case was whether the claimant had any continuing disability after March 17, 1997, causally related to the December 30, 1988 employment injury.

The Office accepted that the claimant sustained lumbar myositis and right knee sprain as a result of the December 30, 1988 work injury. The claimant stopped work on December 30, 1988, and returned to limited-duty work on March 26, 1990. She stopped work again on March 30, 1990.

On September 24, 1996, the employing agency offered the claimant a permanent modified general clerk position based on the results of an Office referred functional capacity evaluation and second opinion examination. The claimant accepted the position on March 6, 1997, and returned to work on March 17, 1997, for one shift. She called in sick on the following day and subsequently informed the Office that she planned to elect disability retirement. The claimant did not return to work.

On May 13, 1997, the claimant filed a recurrence of disability alleging that her disability on or after March 18, 1997, was causally related to the December 30, 1988 employment injury.

By decision dated March 16, 1988, the Office denied the claimant's recurrence of disability claim on the grounds that the evidence failed to establish that the claimant's current condition was due to the December 30, 1988 work injury based on a referee medical opinion that the Office obtained on November 17, 1997.

The Board affirmed the Office's decision noting:

"When an employee, who is disabled from the job she held when injured on account of employment-related residuals, returns to a light-duty position or the medical evidence of record establishes that she can perform the light-duty position, the employee has the burden to establish by the weight of the reliable, probative and substantial evidence a recurrence of total disability and show that she cannot perform such light duty. As part of this burden, the employee must show a change in the nature and extent of the injury-related condition or a change in the nature and extent of the light-duty job requirements.

In this case, appellant has not shown a change in the nature and extent of her modified-duty job requirements, nor has she submitted sufficient medical evidence to show a change in the nature and extent of her injury-related condition."

The Board further noted:

"Appellant has the burden of proof to establish that her disability for work commencing March 17, 1997 and continuing was causally related to her accepted December 30, 1988 employment injury. Appellant has not met that burden of proof."

The Office's decision was affirmed.

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TIME LIMITATION (SECTION 8122) – PRE-1974, ONE YEAR/FIVE YEAR

David G. Evans, Docket No. 00-2788, Issued August 1, 2001

This decision contained a discussion of the timely filing requirements prior to 1974 as compared to the requirements after the 1974 amendments to the Act.

On December 12, 1998, a retired engineer filed an occupational disease claim alleging that he sustained employment-related hearing loss due to a two-week period of intermittent noise exposure in 1957.

The Office found that the claim for compensation benefits was barred by the time limitations of the Act. (The Office used the post-1974 time limitations in making their determination, however.)

The Board noted that the alleged injury occurred in 1957, prior to September 7, 1994, the effective date of the amendments that provided a three-year rather than a five-year time limitation. Therefore, the pre-1974 requirements should have been considered.

"The Act, as applicable to this case, provides that a claim for compensation must be filed within five years from the date when the period of limitations begins to run. This provision is a maximum, mandatory requirement which may not be waived regardless of the reasons for, or the circumstances surrounding, the failure to file a claim within the prescribed time."

The Board went on to compare the pre- and post-1974 requirements:

"The Act was amended in 1974 to provide a three year rather than a five-year maximum limitation period and to allow a claim not filed within that time if 'the immediate superior had actual knowledge of the injury or death within 30 days. The knowledge must be such to put the immediate superior reasonably on notice of an on-the-job injury'. The statute, however, specifically provides that the amendment to the time-limitation provision shall be applicable only to injuries occurring on or after the effective date of the amendments, September 7, 1974. As appellant's injury occurred over a period of time in 1957, the 1974 amendments do not apply to his case. Therefore, such knowledge by a supervisor would not fulfill the statutory requirement placed on appellant to file a claim so as to entitle him to compensation benefits. However, timely knowledge by appellant's superior would satisfy the notice requirement of the Act and entitle appellant to medical benefits for employment-related hearing loss."

Although the district office requested additional factual information from the employing agency, including noise levels, source of exposure, period of exposure, types of hearing protection provided and copies of all medical examinations pertaining to hearing or ear problems, no response was received from the employing agency. The claim was remanded to the district office for additional development to determine whether this information could be obtained in order to determine whether the claimant met the notice requirement of the Act for entitlement to medical benefits.

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SCHEDULE AWARDS – HEARING LOSS

Reynaldo R. Lichtenberger, Docket No. 01-381, Issued August 1, 2001

The issue in this case was whether the claimant had more than a 4% binaural hearing loss.

The Board found that the claimant was entitled to a schedule award for a 2% loss of hearing in his left ear and a 17% loss of hearing in his right ear.

"Under the Act, the maximum award for binaural hearing loss is 200 weeks of compensation. Since the binaural hearing loss in this case is 4 percent, appellant would be entitled to 4 percent of 200 weeks or 8 weeks of compensation. The Office's October 26, 2000 decision awarded appellant eight weeks of compensation for a four percent binaural hearing loss.

It is well established, however, that if calculations based on the monaural hearing loss would result in greater compensation, then the monaural hearing loss calculations should be used. (FECA Program Memorandum No. 49 issued November 26, 1974.) The maximum number of weeks of compensation for hearing loss in one ear is 52 weeks. The Office medical adviser found that the hearing loss in the right ear was 1.9 percent and in the left ear was 16.9 percent. Using the Office procedure of rounding to the next whole number (FECA Program Memorandum No. 49 issued May 1, 1967), the monaural losses are 2 percent and 17 percent. Two percent of 52 weeks is 1.04 weeks of compensation and 17 percent of 52 weeks is 8.84 weeks of compensation, resulting in a total of 9.88 weeks of compensation. As this is more than the 8 weeks of compensation for binaural hearing loss, the Office should have issued the schedule award for a 2 percent hearing loss in the left ear and a 17 percent hearing loss in the right ear. The Board, therefore, finds that appellant is entitled to an additional 1.88 weeks of compensation."

The Office's decision was affirmed as modified and returned to the Office for payment of the additional 1.88 weeks of compensation.

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SCHEDULE AWARDS – HEARING LOSS - AUDIOGRAMS

John P. Ibanez, Docket No. 00-1369, Issued September 24, 2001

George M. Tomko, Docket No. 00-1991, Issued August 16, 2001

In the case of John Ibanez, the issue was whether the claimant established that he sustained more than a 17% binaural hearing loss.

On May 14, 1998, the claimant filed a notice of occupational disease alleging bilateral hearing loss as a result of his federal employment as a coal mine safety and health inspector. In additional to factual evidence, the claimant also submitted audiograms from 1975 to 1998.

The Office arranged for the claimant to be examined by a Board-certified otolaryngologist for a second opinion. Dr. Cullum found a binaural hearing loss of 25.625%. However, the Office's DMA found that Dr. Cullum's assessment of the claimant's hearing loss was worse than any previous reporting source and that his findings were unreliable. He recommended that the claimant be referred for another evaluation.

Consequently, the claimant was referred to Dr. Vongvises, a Board-certified otolaryngologist, for a second opinion. Dr. Vongvises found a binaural hearing loss of 17%. The Office's DMA agreed with Dr. Vongvises' evaluation and the claimant was awarded a 17% binaural hearing loss.

The Board found that the case was not in posture for a decision opining:

"In the present case, Dr. Cullum's July 22, 1998 report and audiogram supported a hearing loss of 10 to 15 dBs higher than previous sources. The Office medical adviser stated that Dr. Cullum's report and audiogram could not be used to adjudicate appellant's claim because Dr. Cullum found a higher impairment than previous medical sources, in this case as well as other cases, therefore, Dr. Cullum's findings were not creditable. However, the medical adviser failed to provide sufficient explanation or evidence to support his allegation, such as the significance of a 10 to 15 dBs difference. The medical adviser did not suggest that Dr. Cullum's findings did not meet all the Office's standards, e.g., the medical adviser did not suggest that there was anything wrong with the equipment used, or the testing procedures.

Dr. Cullum's findings appear to be premised on his examination and testing of appellant and review of the record. A medical adviser may review any audiogram of record in determining which one most accurately reflects appellant's hearing loss, but must provide a rationalized explanation for his selection. When the only explanation given is a conclusion that a higher impairment of hearing loss was found, this is not sufficient to show that a report and audiogram do not constitute probative, reliable evidence. In this case, the medical adviser's statement concerning Dr. Cullum's creditability is unsubstantiated."

The Board remanded the case for the Office to determine which audiogram most accurately reflected the claimant's employment-related hearing loss.

In the case of George Tomko, the issue again hinged on the failure of the district medical advisor to explain why some audiograms should not be considered.

The Office arranged for the claimant to be seen by a Board-certified otolaryngologist on January 7, 1999. Based on the audiogram performed on behalf of the second opinion examiner, the Office accepted a work-related hearing loss but found that it was not severe enough to be considered ratable.

At an oral hearing, the claimant submitted an audiogram performed by a different Board-certified otolaryngologist on April 20, 1999. The case was remanded for clarification of what levels of hearing loss were related to the claimant's employment and which were related to non-occupational ear pathology.

The Office arranged for the claimant to again be examined by the second opinion examiner. Another audiogram was performed at that time which essentially duplicated the previous findings.

The Office again denied payment of a schedule award as the hearing loss was not ratable.

The Board noted that the Office failed to consider the April 20, 1999 audiogram, relying only on the two audiograms performed for the second opinion examiner.

The Board remanded the case for further development stating:

"In cases where there were several audiograms of record, all made within approximately two years of each other, and submitted by more than one specialist, the Board has held that the Office must have all such audiograms evaluated to determine the percentage loss of each. The Office should not arbitrarily select one audiogram without explanation, even if the one selected is the most recent of record."

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TERMINATION OF COMPENSATION – ABANDONMENT OF SUITABLE WORK

Manolo U. Mejia, Docket No. 00-759, Issued September 19, 2001

This decision contains an interesting discussion of abandonment of suitable employment.

The Office initially accepted that the claimant sustained a lumbosacral strain and a left shoulder strain as a result of a work-related injury.

On March 7, 1995, the Office advised the claimant that the position of cook, offered by the employing agency, was suitable and currently available. On May 1, 1995, the claimant accepted the offer of employment with no penalty. He began work on May 8, 1995, but stopped work after two or three days, filing a claim for continuing compensation on account of disability.

By decision dated July 18, 1995, the Office denied compensation for wage loss on the grounds that the medical evidence of record established that the claimant was capable of performing the duties of the position of cook.

On December 18, 1997, the claimant filed a notice of recurrence of disability alleging that he sustained a recurrence of disability on May 10, 1995, and stopped work on May 11, 1995, as a result of his accepted employment injury.

By decision dated April 3, 1998, the Office denied the claim for recurrence of disability.

On February 12, 1998, the claimant requested reconsideration of the July 18, 1995 decision. Following a merit review of the record, the Office issued a decision dated April 15, 1998, modifying the July 18, 1995 decision to find that the claimant's entitlement to compensation was denied under 5 U.S.C. § 8106(c)(2) because he abandoned the job.

The Board noted that the April 15, 1998 decision effectively superceded the earlier denials of the claim for continuing compensation and claim for recurrence of disability by changing the basis for denial to neglect of suitable work. The Board found that the Office improperly terminated compensation benefits based on the April 15, 1998 decision.

The Board noted:

"In this case, the Office failed to provide appellant with the due process protections set forth in (Maggie L.) Moore and (Tobey) Rael. Although the Office provided due process protections prior to appellant's acceptance of the offered employment on May 1, 1995, those protections did not justify the Office's decision on April 15, 1998 to terminate compensation benefits for subsequent neglect of suitable work. When it invoked 5 U.S.C. § 8106(c)(2), the Office reminded appellant of the penalty provision on January 9, 1998 but failed to notify him that the position in question remained available and that he could still return to the position without penalty. Further, the Office extended no period of time for appellant either to return to the position or to provide reasons for not returning. The Office's March 7, 1996 notice and opportunity to respond related to the initial acceptance or refusal of the offered employment and afforded no due process protection against the April 15, 1998 termination for neglect."

The Office's decision was, consequently, reversed.

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FECA CIRCULAR NO. 03-04


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

The interest rate to be assessed for the prompt payment bills is 4.25 percent for the period of January 1, 2003 through December 31, 2003.

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 2.0 percent for the period of January 1, 2003 through December 31, 2003.

Ordinarily, the rate of interest charged on debts due the government is only changed in January, and is effective for the entire year. However, the rate may be changed in July if there is a difference in the Current Value of Funds (CVF) interest rate of 2.0 percent or more. The rates are reviewed each June, and if the rate has changed another Circular will be published to advise all appropriate personnel of the new rate.

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

 

DEBORAH B. SANFORD
Director, 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

1/1/03 - 12/31/03

4 1/4%

7/1/02 - 12/31/02

5 1/4%

1/1/02 - 6/30/02

5 1/2%

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%


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DMS INTEREST RATES

1/1/03 - 12/31/03

2%

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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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FECA CIRCULAR NO. 03-05

September 5, 2003


SUBJECT: SELECTED ECAB DECISIONS FOR OCTOBER – DECEMBER, 2001

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

The subjects addressed include: compensation – entitlement during administrative suspension; emotional conditions – performance of duty – employment factors alleged - investigations; forfeiture – doctrine of res judicata; forfeiture of compensation – provisions of 5.U.S.C. 8148(a); suspension of compensation – provisions of 5 U.S.C. 8148(b).

 

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)

 

COMPENSATION – ENTITLEMENT DURING ADMINISTRATIVE SUSPENSION

Mary Ann Shumaker, Docket No. 01-528, Issued October 1, 2001

The issue in this case was whether the claimant was entitled to compensation after December 2, 1999 during a period of administrative suspension.

The claim was accepted for herniated nucleus pulposus, L5-S1. The claimant returned to work on December 2, 1999 and worked a half day of limited duty with specified work restrictions. However, later that same day, she was suspended without pay pending an investigation due to administrative reasons.

On December 14, 1999, the claimant filed Form CA-7 requesting wage-loss compensation from December 3, 1999 to the present. By decision dated January 24, 2000, the Office denied her compensation claim for the reason that she was no longer totally disabled and could resume full-time, restricted employment.

The Board affirmed the Office's decision finding that the claimant failed to establish that her disability for work after December 2, 1999 was causally related to the accepted work injury of November 16, 1999, reasoning that:

"In this case, the evidence of record does not show that appellant was disabled from work after December 2, 1999 because of her accepted condition of herniated nucleus pulposus at L5-S1. Appellant returned to work for a half day on December 2, 1999 following medical release before filing a claim for wage-loss compensation. The record indicates that appellant was suspended without pay pending investigation of her activity while in continuation of pay status and notwithstanding her administrative suspension beginning December 2, 1999 limited-duty work conforming to her medical restrictions was accommodated and remained available to appellant."

The claimant was not allowed to use her employment injury to shield her from wage loss that resulted from an unrelated matter. The Board's ruling emphasizes the fact that entitlement to compensation arises from injury-related disability.

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EMOTIONAL CONDITIONS – PERFORMANCE OF DUTY – EMPLOYMENT FACTORS ALLEGED – INVESTIGATIONS

Gail L. Friedl, Docket No. 00-2600, Issued October 4, 2001

The issue in this case was whether the claimant established that she developed an emotional condition due to factors of her federal employment.

The claimant attributed her emotional condition to her participation in an investigation of her supervisor by postal inspectors.

The Office issued a decision which denied the claim for the reason that the evidence of record failed to establish a compensable factor of employment.

The Board upheld the Office's decision, finding that the claimant failed to establish that she developed an emotional condition due to factors of her employment. With respect to the issue of participation in an investigation, the Board explained:

"The record establishes that appellant took part in the investigation; however, the postal inspector indicated that appellant volunteered to supply information regarding wrongdoing by her supervisor after a request for a report. There is no evidence that appellant was required to participate in the investigation such that it became a specially assigned task. Generally, investigations are related to the performance of an administrative function of the employer and are not compensable factors of employment unless (the investigations) are affirmative evidence that the employer either erred or acted abusively in the administration of the matter. Appellant has not established any error by the employing establishment in conducting the investigation. Therefore this is not a compensable factor of employment as there was no evidence of error or abuse on the part of the employing establishment in the conduct of the investigation."

A key point to take from this decision is that the claimant's participation in the investigation was voluntary, and as such, cannot be considered to have become a specially assigned task.

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FORFEITURE – DOCTRINE OF RES JUDICATA

Robert Ringo, Docket No. 99-2281, Issued December 11, 2001

The issue of interest in this case was whether the overpayment of compensation was "extinguished" by a February 18, 1995 settlement of a lawsuit brought by the employing agency against the claimant under the Program Fraud Civil Remedies Act (PFCRA).

The Office had declared an overpayment in the amount of $80,320.61, finding that the claimant forfeited his right to compensation from March 7, 1988 to August 4, 1992 as a result of failing to properly notify the Office of earnings.

In a December 1994 complaint, the employing agency accused the claimant of four counts of filing a false affidavit of earnings and employment in violation of the PFCRA. In a February 18, 1995 settlement agreement between himself and the employing agency, the claimant agreed to pay the agency $5,000 pertaining to Count 1. Counts 2 through 4 were subsequently dismissed.

By decision dated August 14, 1995, an Office hearing representative determined that the claimant was liable for repayment of the $80,320.61, with interest. The hearing representative further found that the claimant had knowingly failed to report his employment activities from November 1987 to May 1992 and that those duties fairly and reasonably represented his wage-earning capacity.

The claimant filed an appeal before ECAB contending that the overpayment was "extinguished" under the doctrine of res judicata under the PFCRA settlement and dismissal.

The Board affirmed the Office's decision finding that the overpayment of compensation was not "extinguished" under the doctrine of res judicata, explaining:

"The common-law doctrine of res judicata, also known as claim preclusion, may apply to adjudicatory determinations of administrative bodies that have attained finality. In Leopoldo Sandoval [42 ECAB 282, 1990], the Board stated that a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. The doctrine of res judicata seeks to 'avoid multiple suits on identical entitlements or obligations between the same parties, accompanied, as they would be, by the redetermination of identical issues of duty and breach. A later administrative proceeding would be precluded by res judicata in the same circumstances as would a second court proceeding.'

In this case, the February 18, 1995 settlement agreement was between appellant and the employing establishment. The Office was not involved in the settlement in any way and, therefore, cannot be considered a party or privy to that action. Thus, there is no identity of parties. Further, the February 18, 1995 agreement was entered into pursuant to the PFCRA and not the Act. Thus, there is no identity of duty or breach of duty and res judicata cannot apply."

As the Board noted, the Office was not party to the original settlement agreement, nor did the settlement involve the FECA, as such, the doctrine of res judicata is not applicable.

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FORFEITURE OF COMPENSATION – PROVISIONS OF 5 U.S.C. 8148(a)

Lawrence M. Morris, Docket No. 99-1250, Issued December 12, 2001

The issue in this case was whether the Office properly determined that the claimant had forfeited his right to compensation under the provisions of 5 U.S.C. § 8148(a).

Public Law No. 103-333, enacted on September 30, 1994, amended the FECA by adding section 8148, which provides for forfeiture of compensation benefits by an individual convicted of fraud with respect to receipt of compensation, and prohibits the payment of compensation benefits to an individual while incarcerated pursuant to a felony conviction.

On February 17, 1995 the claimant signed a plea agreement in which he pleaded guilty to a violation of 18 U.S.C. § 1920. The agreement specified that this was a misdemeanor offense. The agreement was accepted and signed by the District Court judge on February 17, 1995.

The claimant argued that section 8148(a) may only be applied to a felony violation of 18 U.S.C. § 1920, and was, therefore, not applicable to the claimant. He further argued that because section 8148 does not specifically state that the violation must be a misdemeanor or a felony, the Board should look to the heading of section 8148 for guidance.

The Board was not persuaded by this argument stating, "There is no ambiguity in these words [section 8148(a)] that would require guidance from language outside section 8148(a) and there is no justification for the use of general heading to restrict the scope of section 8148(a)."

The Board affirmed the Office's decision finding that "the conviction for a misdemeanor violation of 18 U.S.C. § 1920 requires a forfeiture of compensation pursuant to 5 U.S.C. § 8148(a). The date the guilty plea was accepted in this case is February 17, 1995, and therefore, appellant forfeits entitlement to compensation after that date."

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SUSPENSION OF COMPENSATION - PROVISIONS OF 5 U.S.C. 8148(b)

Ralph C. Spivey, Docket No. 01-263, Issued December 4, 2001

The issue of interest in this decision was whether an overpayment occurred when the claimant received disability compensation while he was incarcerated.

The claimant was imprisoned for a period of 30 days for operating a motor vehicle after his license had been suspended pursuant to a conviction for driving under the influence, in violation of section 18.2-272 of the Code of Virginia. The Office declared an overpayment in the amount of $827.29 for the period during which the claimant was incarcerated.

The Board noted that the Code of Virginia section 18.2-272 titled "Driving after forfeiture of license" provided, "If any person so convicted shall, during the time for which he is deprived of his right so to do, drive or operate any motor vehicle, engine or train in this Commonwealth, he shall be guilty of a Class 1 misdemeanor."

The Board also noted that Section 8148(b)(1) of the Federal Employees' Compensation Act provides as follows:

"Notwithstanding any other provision of this chapter (except as provided under paragraph (3)), no benefits under this subchapter or subchapter III of this chapter shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison or other penal institution or correctional facility, pursuant to that individual's conviction of an offense that constituted a felony under applicable law."

Consequently, the Board found that the evidence of record failed to establish that the offense for which the claimant was convicted "constituted a felony under applicable law," as is required under the provisions of 5 U.S.C. 8148(b).

As the record did not establish that the incarceration was as a result of a felony conviction, the Board reversed the Office's decision with respect to the fact of overpayment.

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FECA CIRCULAR NO. 03-07


SUBJECT: Forms – Appeal Rights

Revised appeal rights have been attached to all decisions and letters requiring appeal rights currently found in the National Letter Generation System (LGS). The claimant's rights to appeal have not changed, but the format is different.

The new appeal rights include a check-list. The claimant is instructed to detach, fill out, and mail the checklist to the appropriate address, if they wish to appeal the decision. The revised appeal rights are easier to understand and more user-friendly. They should also assist in the proper identification of reconsideration requests upon receipt.

Effective immediately, for any decisions that are not generated through the National LGS, the claims examiner must attach a copy of the revised appeal rights. Full appeal rights are available as a stand-alone document in the National LGS. All earlier versions are obsolete and should be replaced with the appropriate revision.

 

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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FECA CIRCULAR NO. 03-08

June 23, 2003


SUBJECT: FORMS CORRESPONDENCE - DELETION OF LETTERS

In preparation for the new "Correspondence Library" that will be implemented with iFECS, the following 71 letters have been identified for deletion from Forms Correspondence. The letters noted are either obsolete or there are now letters in the National LGS that serve the same purpose.

CA-180 - in LGS
CA-181 - in LGS
CA-1006 - obsolete
CA-1008 - in LGS
CA-1011 - in LGS
CA-1020 - in LGS
CA-1021 - obsolete
CA-1024 - obsolete
CA-1025 - obsolete
CA-1037 - obsolete
CA-1038 - in LGS
CA-1041 - obsolete
CA-1042 - in LGS
CA-1047 - in LGS
CA-1048 - in LGS
CA-1049 - in LGS
CA-1050 - in LGS
CA-1058 - obsolete
CA-1059 - in LGS
CA-1063 - in LGS
CA-1064 - in LGS
CA-1074 - in LGS
CA-1079 - obsolete
CA-1081 - in LGS
CA-1082 - in LGS
CA-1086 - in LGS
CA-1090 - in LGS
CA-1123 - obsolete
CA-1207 - in LGS
CA-1208 - in LGS
CA-1302 - in LGS
CA-1303 - in LGS
CA-1306 - obsolete
CA-1309 - in LGS
CA-1311 - obsolete
CA-1312 - obsolete
CA-1314 - obsolete
CA-1316 - in LGS
CA-1328 - in LGS
CA-1330 - obsolete
CA-1336 - in LGS
CA-1342 - obsolete
CA-1343 - obsolete
CA-1653 - obsolete
CA-1655 - in LGS
CA-1656 - in LGS
CA-1657 - in LGS
CA-2201 - in LGS
CA-2202 - in LGS
CA-2209 - obsolete
CA-2211 - obsolete
CA-2212 - obsolete
CA-2217 - in LGS
CA-2218 - obsolete
CA-2223 - in LGS
CA-2224 - in LGS
CA-2226 - in LGS
CA-6001 - in LGS
CA-6004 - in LGS
CA-6005 - in LGS
CA-6007 - in LGS
CA-6018 - obsolete
CA-9000 - obsolete
CA-9001 - in LGS
CA-9002 - in LGS
CA-9003 - in LGS
CA-9006 - in LGS
CA-9007 - in LGS
CA-9008 - in LGS
CA-9800 - obsolete
CA-9995 - obsolete

 

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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FECA CIRCULAR NO. 03-09

September 23, 2003


SUBJECT: SELECTED ECAB DECISIONS FOR JULY – SEPTEMBER, 2002

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

The subjects addressed include: medical opinions – impartial medical examinations – clarification of impartial reports; medical opinions – impartial medical examinations – impartiality – close association of medical practices; medical opinion – impartial medical examinations – impartiality – IME who performs fitness-for-duty exams; medical opinions – impartial medical examinations – scheduling appointments.

 

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)

 

MEDICAL OPINIONS – IMPARTIAL MEDICAL EXAMINATIONS -CLARIFICATION OF IMPARTIAL REPORTS

Frank J. Argentieri, Docket No. 02-594, Issued September 3, 2002

The issue in this case was whether the Office properly reduced the claimant's compensation benefits on the basis of an impartial medical specialist's report.

The case was accepted in September of 1990 for a lumbosacral sprain and strain. The claimant was able to return to half-time, light-duty in July of 1991; however, he again stopped all work on July 30, 1991, due to a recurrence of injury. On March 20, 1998, the claimant was referred for a second opinion examination with a board-certified orthopedic surgeon. The referral physician opined that the claimant had no residuals of his 1990 work-related condition, but remained partially disabled due to prior spine surgery and resultant degenerative disc disease. He also stated that the claimant could perform full-time, light-duty work with restrictions.

In a report dated May 11, 1999, the claimant's treating orthopedic surgeon stated that the claimant's 1990 employment injury had aggravated the underlying degenerative changes of his spine, and that he was only capable of working four hours per day with restrictions. The Office determined that a conflict of medical opinion existed concerning the claimant's ability to perform work, so he was referred to Dr. Parviz Kambin, a Board-certified orthopedic surgeon, for an impartial medical examination.

In his report of May 30, 2000, Dr. Kambin stated that because the claimant "has not been able to work for nine years, it is my opinion that his present disability will remain permanent." However, Dr. Kambin also stated that "sedentary type of work is within his capability, [although] I am doubtful that he will accept or sustain this type of occupation."

The Office subsequently submitted Dr. Kambin's report to an Office medical adviser, who used it as the basis for completing a work capacity evaluation form dated June 15, 2000. The Office medical adviser opined that the claimant could work eight hours a day, with specific physical restrictions. An Office rehabilitation counselor subsequently identified the job of Dispatcher as within the claimant's physical limitations and reasonably available to him. In a notice of proposed reduction of compensation dated July 9, 2001, the Office determined that Dr. Kambin's opinion carried the weight of the medical evidence and that the claimant could perform the sedentary position of Dispatcher. The Office also determined that the claimant already possessed the experience to perform the identified position, and that the job remained reasonably available to him. In a decision dated August 27, 2001, the Office reduced the claimant's compensation on the grounds that the position of Dispatcher fairly and reasonably represented his wage-earning capacity.

The Board overturned the Office's decision, noting:

"In the present case, the Office selected Dr. Kambin as an impartial specialist to resolve the conflict in the medical evidence on whether appellant could return to some form of work. The Office cited his May 30, 2000 report as a basis for its decision to reduce appellant's compensation based on his ability to earn wages as a full-time dispatcher. Dr. Kambin's report, however, failed to establish that appellant actually had the physical capability to perform his job, and the Office asked an Office medical adviser, rather that Dr. Kambin himself, to elaborate on appellant's physical capabilities.

The August 27, 2001 decision of the Office of Workers' Compensation Programs is hereby reversed."

In order to resolve a conflict of medical opinion, the Office must rely solely on the well-reasoned, unequivocal report of the impartial examiner.

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MEDICAL OPINIONS – IMPARTIAL MEDICAL EXAMINATIONS – IMPARTIALITY – CLOSE ASSOCIATION OF MEDICAL PRACTICES

Ronald Santos, Docket No. 02-624, Issued August 19, 2002

The issue in this case was whether the close association of the medical practices of the second opinion and impartial referral physicians created an appearance of impropriety.

The Office terminated the claimant's compensation benefits on the basis of the March 31, 1999 second opinion report of Dr. James McLennan, who found that the claimant displayed no objective evidence of a neurological or orthopedic condition. The claimant disagreed with the Office's decision and requested a hearing.

The Office hearing representative reversed the termination decision, finding that a conflict in the medical evidence existed between Dr. McLennan and the claimant's treating neurologist, Dr. Eugene Russo. The Office subsequently referred the claimant to Dr. Michael Olin for an impartial medical examination. In his report of December 13, 2000, Dr. Olin opined that the claimant was no longer disabled. On the basis of Dr. Olin's report, the Office again terminated the claimant's compensation benefits by decision dated April 2, 2001. As the claimant disagreed with the Office's decision, he again requested a hearing.

At the hearing, the claimant argued that the Office had not met its burden of proof because Dr. Olin was associated with Dr. McLennan. In support of his argument, the claimant testified that Drs. Olin and McLennan have the same address, their names appear together on the door, they share a waiting room and the same support personnel, and both the second opinion and impartial examinations took place in the same room. In a decision dated December 20, 2001, the Office hearing representative found that the weight of the evidence rested with Dr. Olin and affirmed the termination of compensation benefits.

The Board reversed the Office's decision, with the following discussion:

"A physician serving as an impartial medical specialist should be one who is wholly free to make a completely independent evaluation and judgment, untrammeled by a conclusion rendered on a prior examination. An opinion of an associate who has already rendered an opinion on the claim cannot be considered completely independent and, therefore, his report cannot be used by the Office to resolve the conflict in the medical evidence. The Board has held that a physician selected as an impartial medical specialist cannot be considered completely independent when an associate has previously served as an Office referral physician in the case.

The importance of safeguarding the independence of impartial medical specialists is also recognized in the Office's procedures. Under the Office's procedures, 'physicians previously connected with the claim or the claimant or physicians in partnership with those already so connected' may not be used as impartial specialists.

In the present case, Dr. Olin shared the same address, suite number, waiting area and examination room as Dr. McLennan, whose opinion was part of the conflict. While there is no evidence in the record to indicate that the two doctors were in a medical partnership there exists an appearance of impropriety due to the close association of the medical practices of Dr. Olin with Dr. McLennan.

Accordingly, the Board finds that Dr. Olin cannot serve as an impartial medical specialist in this case and his report does not resolve the conflict in the medical evidence. Since it is the Office's burden to terminate appellant's compensation, the Board finds the Office has not met its burden of proof in this case."

It should be noted that it is incumbent upon the Office to determine and maintain the appearance of impartiality of any physician selected to serve as an impartial medical examiner.

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MEDICAL OPINIONS – IMPARTIAL MEDICAL EXAMINATIONS – IMPARTIALITY – IME WHO PERFORMS FITNESS-FOR-DUTY EXAMS

Steve A. Williams, Docket No. 02-784, Issued August 27, 2002

The issue of interest in this case was whether performance of regular fitness-for-duty exams by the impartial medical examiner for the claimant's employing agency undermined his appearance of impartiality.

In the Steve A. Williams case, the Office determined that a conflict existed between the claimant's treating physician, Dr. J. Davis Pitcher, Jr., and the second opinion referral physician Dr. Thomas Miskovsky, with regard to whether the claimant had continuing, injury-related residuals. To resolve the conflict, the Office referred the claimant to Dr. Richard McCollum for an impartial medical examination. On the basis of Dr. McCollum's July 17, 1998 report, the Office terminated the claimant's compensation benefits for the reason that his employment-related residuals had ceased. The claimant disagreed with the Office's decision and requested a hearing.

By decision dated January 13, 1999, the Office hearing representative found that Dr. McCollum's July 17, 1998 report was insufficient to resolve the conflict in the medical evidence. The hearing representative directed the Office to obtain a supplemental report from Dr. McCollum to determine whether the claimant's work-related residuals had ceased and whether his April 23, 1998 surgery was employment-related. On the basis of Dr. McCollum's supplemental report dated February 9, 1999, the Office denied authorization of the surgery and terminated the claimant's wage-loss and medical benefits by decision dated April 16, 1999. As the claimant disagreed with the Office's decision, he again requested a hearing.

By decision dated March 21, 2000, the Office hearing representative set aside the prior decision, and directed the Office to further develop the record on whether Dr. McCollum was performing duties as an Office medical advisor at the time of his supplemental report—which would make him ineligible to serve as an impartial medical specialist.

In a decision dated June 20, 2000, the Office again denied authorization of the claimant's prior surgery and terminated his compensation benefits on the basis that all injury-related residuals had ceased by April 16, 1999. In a decision dated February 23, 2001, an Office hearing representative affirmed the Office's decision.

The Board reversed this decision, noting:

"The Board has long recognized the importance of the impartiality of the physician selected as an impartial medical specialist. In selecting an impartial medical specialist, the physician so designated should be one who is wholly free to make a completely independent evaluation and judgment. A physician performing fitness-for-duty examinations for the employing establishment may undermine the appearance of impartiality and disqualify the physician from serving as an impartial medical specialist. The Office's Procedure Manual acknowledges that medical evidence must be excluded when 'the physician selected for referee examination is regularly involved in performing fitness-for-duty examinations for the claimant's employing establishment.'

The Office hearing representative found that Dr. McCollum did not demonstrate any bias in the case, noting his unequivocal opinions in both the July 17, 1998 and February 9, 1999 reports. The issue, with respect to Dr. McCollum's ability to serve as an impartial specialist, cannot be resolved by reference to the content of the reports submitted. Since the Office relied on the February 9, 1999 report, the issue is whether at that time Dr. McCollum was 'regularly involved' in fitness-for-duty examinations or otherwise had an association with the employing establishment that undermined the appearance of impartiality.

A very limited involvement with the employing establishment may not disqualify a physician from serving as an impartial medical specialist.

The record in this case, indicates that Dr. McCollum performed 13 examinations, at least three of which were fitness-for-duty examinations, in a 4-month period preceding the February 9, 1999 report. This clearly suggests that he was regularly performing examinations for the employing establishment. Such an association with the employing establishment does undermine the appearance of impartiality that is vital to 5 U.S.C. § 8123(a). Accordingly, the Board finds that Dr. McCollum's February 9, 1999 report must be excluded and cannot resolve the conflict in the medical evidence. The Office must select another impartial medical specialist to resolve the medical issues presented."

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MEDICAL OPINIONS – IMPARTIAL MEDICAL EXAMINATIONS - SCHEDULING APPOINTMENTS

Leonard R. Popham, Docket No. 01-1624, Issued August 9, 2002

The Board found that the Office's suspension of the claimant's compensation for his refusal to undergo an impartial medical examination was improper.

In order to determine the nature and extent of the claimant's work-related conditions, the Office referred him to a Board-certified orthopedic surgeon who opined that the claimant did not suffer from active lumbar, thoracic, or cervical strains. However, he indicated that due to functional overlay and chronic pain syndrome "clouding his ability to work," the claimant could not return to his date-of-injury position. Nonetheless, the second opinion physician also opined that the claimant could return to sedentary or light-duty work for four hours per day, while slowly progressing to an eight-hour day. On the basis of this report, the Office determined that a conflict of medical opinion existed in the claimant's case.

To resolve the conflict, the Office referred the claimant to another Board-certified orthopedic surgeon for an impartial medical examination. The June 2, 2000 referral letter advised the claimant of the date of the examination and that, under section 8123(d) of the FECA, an employee's right to compensation is subject to suspension if the employee refuses to submit or obstructs a medical examination. When the claimant failed to appear for two scheduled examinations, the Office subsequently issued a notice of proposed suspension of compensation. The Office advised the claimant that he had 14 days to explain why he failed to keep the appointment, and advised him that if he failed to respond, or if his reasons for failing to keep the appointment were found to be unacceptable, then his entitlement to compensation would be suspended until he agreed to submit to the examination.

The claimant responded, by letter dated July 21, 2000, that he had been visiting his father in the surgical intensive care unit at the time of the July 11, 2000 appointment. In a letter dated August 7, 2000, the Office informed the appellant that he could reschedule his appointment with Dr. Arredondo at either of two locations. The Office afforded the claimant an additional 14 days within which to respond. The Office did not receive a response within the allotted time. By decision dated August 28, 2000, the Office suspended the claimant's right to compensation effective September 10, 2000, for the reason that he refused to attend a medical examination as instructed.

The Board found that the Office acted improperly when it suspended the claimant's compensation, explaining:

"Pursuant to the Federal (FECA) Procedure Manual, Part 3 -- Medical Examinations, Chapter 3.500.3 (April 1993), after contacting the physician and setting the date and time of the appointment, the Office must notify the claimant in writing as to the name and address of the physician to whom he or she is being referred as well as the date and time of the appointment. In this case, however, no date or time for examination by the impartial specialist was set at the time of the suspension of compensation. Appellant's July 21, 2000 letter explained that he had missed the July 11, 2000 appointment to attend to his father. Thereafter, the Office advised appellant to reschedule the examination rather than contacting the physician's office to set a new time and date for examination. Thus, the Office acted improperly in suspending the appellant's compensation."

The key point to take from this decision is that it is the Office's responsibility to schedule second opinion (through the Office contractor) and impartial examinations, and then to duly notify the claimant of the time, date, and location of the scheduled appointment.

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FECA CIRCULAR NO. 02-01


SUBJECT: DUAL BENEFITS - FERS COLA

Effective December 1, 2001, Social Security Benefits will increase by 2.6%. 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 ACPS Program. The adjustment will be made effective with the periodic roll cycle beginning December 2, 2001. No adjustment will be made for December 1, 2001.

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, 2001

2.6%

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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FECA CIRCULAR NO. 02-03

November 30, 2001


SUBJECT: SELECTED ECAB DECISIONS FOR OCTOBER – DECEMBER, 2000

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

The subjects addressed include: compensation – reinstatement of benefits; earnings – self-employment; fact of injury – inconsistent facts; medical opinions – clarification and impartial medical examination; overpayments; performance of duty – altercations and deviation from route; reconsideration – merit review, non-merit review and timely filing; recision of acceptance; recurrence; time limitation – occupational disease; wage earning capacity – actual earnings and medical evidence.

 

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)

 

COMPENSATION - REINSTATEMENT OF BENEFITS

Emanuel J. Piturro, Docket No. 99-345, Issued November 29, 2000

In this case, the Office terminated the claimant's compensation and medical benefits because he no longer had any continuing disability due to his accepted employment injury. The Office determined that the medical evidence of record supported the basis for termination.

The claimant subsequently requested reconsideration of this decision and submitted additional medical evidence in support of that request. The Office determined that this additional medical evidence created a conflict in the medical evidence and arranged for the claimant to be examined by an impartial medical examiner. Relying upon the medical opinion of the impartial medical examiner, the Office found that the claimant no longer had any disability due to his accepted employment injury.

The Office did not re-instate compensation or medical benefits at the point that a conflict of medical evidence was determined to exist.

The Board affirmed this decision stating that "Once the Office accepts a claim and pays compensation, it has the burden of justifying modification or termination... of compensation benefits. The Office may not terminate compensation without establishing that the disability ceased or that it was no longer related to the employment. The Office's burden includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background." The Board found that the initial termination decision was proper based on the evidence of record at the time the decision was issued.

The Board further noted that "After termination or modification of compensation benefits, clearly warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail, appellant must establish by the weight of the reliable, probative and substantial evidence that he had an employment-related disability, which continued after termination of compensation benefits." The Board found that the Office properly identified a conflict of medical evidence subsequent to the original termination of benefits. Based on the impartial medical examiner, any subsequent disability was properly denied.

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EARNINGS - SELF-EMPLOYMENT

Kyu Kelly, Docket No. 99-1636, Issued October 4, 2000

The issue in this case was whether the Office properly determined the claimant's loss of wage-earning capacity for the period beginning February 18, 1997.

The Office found the claimant's earnings as a self-employed accounting service business owner fairly and reasonably represented her wage-earning capacity.

The Board notes, however, that the Office "did not use appellant's earnings in this position, which appellant had occupied since December 1994, as the basis of her wage-earning capacity. Instead, the Office used the amount appellant estimated it would have cost her to hire someone to perform her position, $10.00 per hour. Even though an Office rehabilitation specialist indicated that $10.00 per hour was in the range of salaries for the position of office manager or administrative assistant and that these positions were available in appellant's commuting area, the Office's decision was erroneous."

The Board went on to explain "Under section 8115 of the Act, wage-earning capacity must be determined either by using actual earnings or by selecting an available position in the open labor market that the claimant is physically and occupationally able to perform. The Office cannot make a wage-earning determination based on what another person would have earned if he or she had worked the hours that the claimant did in his or her actual position. Although the Office's decisions in the present case purported to use appellant's actual earnings as the basis of her wage-earning capacity beginning February 18, 1997, appellant's actual earnings, as reflected by her income tax return from 1997, appear less than the $400.00 per week used by the Office."

The Office's decision was reversed.

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EMOTIONAL CONDITIONS - PERFORMANCE OF DUTY - CHANGE IN DUTY SHIFT

Mark Kapanowski, Docket No. 99-1975, Issued October 2, 2000

The issue in this case was whether the claimant met his burden of proof in establishing that he developed an emotional condition due to factors of his federal employment. This decision contains an interesting discussion of 'change' in existing duty shift.

"In this case, appellant attributed his emotional condition to a proposed change in his work schedule. On January 30, 1998 the employing establishment provided appellant with notice that on January 31, 1998 he would be converted to a full-time flexible clerk with a schedule of 8:30 a.m. to 5:00 p.m. with regular days off of Wednesday and Thursday. Appellant stated that his normal work hours were Monday through Friday from 7:00 a.m. to 3:30 p.m. with Saturday and Sunday as regular days off.

The Board notes that the present case does not involve 'change' in appellant's existing duty shift. The Board has recognized that working a rotating or fluctuating shift or a reassignment made to a different shift schedule may constitute a factor of employment in determining whether an injury has been sustained in the performance of duty. However, a proposed shift change that has not been implemented is not compensable under the Federal Employees' Compensation Act. In this instance, appellant's shift was not altered from a day to night shift such that his sleep patterns would be disturbed. Instead the employing establishment proposed to promote appellant and consequently alter his work schedule by an hour and a half per day. Furthermore, appellant did not actually attempt the change in work hours prior to filing his claim. For these reasons, the Board finds that appellant has not establish (sic) that his change in work hours constituted a compensable factor of employment."

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FACT OF INJURY - INCONSISTENT FACTS

Ellerton Spruiell, Docket No. 00-136, Issued December 21, 2000

The issue in this case was whether the claimant sustained an injury in the performance of duty as alleged.

The claimant filed a notice of traumatic injury, alleging that he injured his back when he fell at work. The employing agency controverted the claim on the grounds that the fall was idiopathic.

The claimant was assigned to clean out a walk-in storage box that was filled with various materials including hazmat, clothing, wooden pallets, tires, etc. He alleged that he caught his foot on something, probably a pallet, and fell. He did not remember much until the rescue squad began giving him oxygen. The narrative statement from the claimant's supervisor supported the essential elements of the claimant's allegations.

The Office denied the claim for failure to establish the factual elements of fact of injury noting that the medical evidence contained three different histories of injury, none of which coincided with the history provided by the claimant on the CA-1, Notice of Traumatic Injury.

The Board found that the factual evidence of record was sufficient to establish that the claimant experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. The Board noted that "While appellant's account of the events of June 4, 1998 is largely confirmed by his supervisor, the physicians who treated appellant on the day of the incident and thereafter, have provided quite differing explanations of the manner in which appellant injured his back. These inconsistencies are not sufficient to impugn the validity of appellant's claim, but they do diminish the probative value of the physicians' opinions relating appellant's injury to his work."

The Board remanded the case for further medical development based on the accepted mechanism of the fall.

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MEDICAL OPINIONS - CLARIFICATION

Billy R. Cooksey, Docket No. 99-317, Issued October 3, 2000

The issue in this case was whether the Office properly determined that the selected position of information clerk represented the claimant's wage-earning capacity.

The Board reversed the Office's decision, finding that the impartial medical opinion on which the decision was based, was not sufficiently detailed to establish that the claimant was capable of performing the selected position.

The Board specifically noted that the Office recognized the deficiencies in the referee medical report and requested clarification. However, no additional explanation was received from the referee physician and there was no indication that any physician of record reviewed the job description for information clerk and opined that the claimant was capable of performing the position.

If the Office requests clarification of a medical opinion, it is obligated to obtain that clarification. If the physician from whom the clarification is requested is either unwilling or unable to provide the requested clarification, a new medical examination must be arranged.

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MEDICAL OPINIONS - IMPARTIAL MEDICAL EXAMINATION

Marie Niwore, Docket No. 99-2280, Issued October 11, 2000

The issue in this case was whether the claimant sustained more than a 4% impairment of her right upper extremity.

The Office determined that a conflict in medical opinion existed in this case. The claimant and entire case file were referred to an impartial medical examiner to resolve the conflict.

The Board found that the case was not in posture for a decision due to an unresolved conflict in the medical opinion. They found that the impartial medical opinion of record was improperly obtained and must be excluded from the record.

Specifically, the case file contained evidence of a telephone conversation between the Office medical advisor and the impartial medical examiner, regarding the calculation of the schedule award.

The Board noted that in Carlton Owens, 36 ECAB 608, 616 (1985), it held that oral communication or conversations between the Office and the impartial medical examiner on disputed issues should not occur as it undermines the appearance of impartiality that is crucial to a referee opinion.

In this case, the Board found that the telephone conversation between the Office medical advisor and the impartial examiner raised an appearance of impropriety because disputed issues were discussed. The Office medical advisor "attempted to have the doctor eliminate his evaluation of appellant's index finger, which was part of appellant's claim for a schedule award. As the issue in this case is whether appellant had a permanent impairment of her right upper extremity, a discussion concerning it involves a disputed issue."

The case was remanded for a resolution of the conflict in medical opinion.

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OVERPAYMENTS

Lillian Hasz, Docket No. 99-1088, Issued December 7, 2000

The issue of interest in this decision was whether the Office properly denied the claimant's request for waiver of recovery of the overpayment.

In this case, the Board found that the Office correctly determined that the claimant had a $24,472.11 overpayment of compensation. In calculating the total income of the household, the claimant included the wages of her son but asked that those wages not be included in the Office's calculations as he would not continue to work if his grades declined. The Office based its denial of waiver on calculations that included the son's income.

The regulations define income for overpayment calculation purposes as:

The individual's total income includes any funds, which may be reasonably considered available for his or her use, regardless of the source. Income to a spouse will not be considered available to the individual unless the spouse was living in the household at the time the overpayment was incurred and at the time waiver is considered.

The Board noted that the Office failed to consider whether the income of the claimant's son (or any other children) was reasonably available to the claimant for her use. If the son's income was not expected to be used to meet any part of her household expenses, then that income should not be considered reasonably available to the claimant.

The Board affirmed the fact and amount of the overpayment but remanded the case for further development as to the amount of income the claimant had available for living expenses. The Board specifically instructed the Office to ask whether any of the claimant's children had income, and if so, whether their income was used to pay the ordinary and necessary living expenses of the household.

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PERFORMANCE OF DUTY - ALTERCATION

Leslie C. Moore, Docket No. 00-126, Issued November 1, 2000

The issue in this case was whether the claimant established that he sustained an emotional condition in the performance of duty.

In this case, the claimant filed a claim for a traumatic injury alleging that he was assaulted in the parking lot of his place of employment by a coworker's spouse. The claimant's account of this assault was corroborated by a number of witnesses.

The Office denied the claim, finding that the reason for the attack was due to the claimant's inappropriate comments to his female coworker that had occurred during the workday and, therefore, the resulting incident was not a covered work event.

The Board found that the assault occurred in the course of the claimant's employment. The Board noted that, "The parking lot where the assault occurred is considered to be a part of the employment premises and appellant has, therefore, satisfied the 'course of employment' portion of the performance of duty test. The Board notes, however, that appellant still has to satisfy 'arising out of' portion of the performance of duty test before his injury would be deemed to have occurred in the performance of duty. 'Arising out of the employment' requires that a factor of employment caused the injury."

The Board noted that the "record contains evidence that appellant and Ms. Jackson (coworker) engaged in a quarrel over the performance of employment duties which contributed to the assault. The evidence also establishes that appellant was reasonably fulfilling the duties of his employment at the time of the verbal altercation..." The Board further noted that the Office invoked the affirmative defense of willful misconduct in conjunction with the original adjudication of the claim. The Board noted however, that "such defense will not serve to remove appellant from the performance of duty barring compensation in this case. Although appellant's responses to his coworker during their exchange were indeed inappropriate, appellant was approached by Ms. Jackson whereby she initiated an altercation due to his response to a question posed by his supervisor who sought to staff an upcoming shift." The Board has previously held that there is no provision in the Act authorizing the denial of compensation because the employee was an aggressor, or the initiator, or otherwise did something "imputing culpability or fault on his part".

The Board, therefore, found that, "as the assault on appellant on employment premises resulted from a dispute, which occurred during appellant's tour of duty and regarded work issues, the assault bears a sufficient relationship with his employment to afford coverage. There is no evidence that the basis for the altercation was imported to the work environment."

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PERFORMANCE OF DUTY – DEVIATION FROM ROUTE

Karen Cepec, Docket No. 00-346, Issued December 7, 2000

The issue in this case was whether the claimant's injury arose in the performance of duty and whether the injury resulted from willful misconduct.

The claimant was involved in a motor vehicle accident during working hours. The accident occurred when, following her last delivery, the claimant decided to check out a street on a new route that was to be assigned to her in the near future. The street was approximately two blocks from her current route and the claimant counted houses and tried to find a good place to park her vehicle when the new route began.

The employing agency contended that this unauthorized deviation from her established route removed the claimant from performance of duty. The agency further contended that such deviation was in violation of agency rules and that the claimant was fully aware that such unauthorized deviation from her route was not permitted.

The Office denied the claim finding that the claimant had deliberately violated a known rule and intentionally deviated from her route without permission. The Office further found that this deviation was for personal reasons as her presence in the area was not a condition of her employment, was not required by the employing agency and was not needed to prepare her for her future assignment. In addition, the Office found that the claimant's willful misconduct led to the injury.

The Board reversed the Office's decision. The Board noted that the standard to be used in determining whether an employee has deviated is that, in addition to a person taking a somewhat roundabout route or not taking the most direct route between the place of origin and the point of destination, it must be shown that the deviation was aimed at reaching some specific personal objective.

In this case, the Board found that "it was not established that appellant's deviation from the normal line of travel was aimed at reaching some specific personal objective. Following her last delivery of the day, the appellant decided to check out the new street on her future route, to count the houses and to find a good place to park her vehicle when the new route began. However unnecessary or even prohibited this conduct may have been, however poor her judgement, the purpose of appellant's conduct was unquestionably related to work. Her departure from the normal line of travel was not such that she can fairly be said to have engaged in personal activities unrelated to her employment." Consequently, the Board found that the claimant's injury arose in the course of her employment.

With respect to the issue of willful misconduct, the Board noted that willful misconduct "is generally regarded as deliberate conduct, involving premeditation, obstinacy or intentional wrongdoing with the knowledge that it is likely to result in serious injury, or conduct which is in wanton or reckless disregard of probable injurious consequences. In the present case, appellant was driving her postal vehicle when the accident occurred. This activity was not different in nature from that in which she was normally engaged and required to perform. The Office has made no showing that appellant knew that her conduct was likely to result in serious injury or that she wantonly or recklessly disregarded probable injurious consequences. For this reason the Board finds that the Office has not met its burden of proving the affirmative defense of willful misconduct."

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RECONSIDERATION - MERIT REVIEW

Robert M. Brown, Docket No. 00-653, Issued December 7, 2000

The Office granted the claimant a schedule award for 8% loss of the right ring finger, which amounted to two weeks of compensation.

The claimant's attorney requested reconsideration of the decision arguing that an 8% loss should have been granted and the two weeks of compensation did not accurately represent the findings of the doctor. While the argument of the claimant's attorney was not clearly stated, a review of the medical evidence of record confirmed that the schedule award should have been based on permanent impairment of the right hand rather than solely the right ring finger.

The Office denied the request for review finding that the contention of the claimant's representative was immaterial and insufficient to warrant review.

The Board found that the claimant's representative had advanced a relevant legal argument not previously considered by the Office. Essentially, the Board found that the medical evidence of record included consideration of a permanent impairment to the hand as well as the right ring finger. The schedule award was based solely on the impairment to the right ring finger. Consequently, the argument advanced in support of reconsideration constituted a relevant legal argument requiring a merit review.

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RECONSIDERATION - NON-MERIT REVIEW

David Lee Sanders, Docket No. 99-1785, Issued October 24, 2000

The issue in this case was whether the Office abused its discretion in refusing to reopen the claimant's case for further consideration of the merits of his claim.

The claim was accepted for a July 15, 1991 aggravation of epididymitis. The claimant alleged a recurrence of the accepted medical condition effective August 1, 1994. This claim for recurrence was denied because the medical evidence of record failed to support a causal relationship between the accepted July 15, 1991 employment injury and the claimed recurrence. This decision was affirmed by the hearing representative who noted that Dr Schwartzwald, the claimant's treating physician, provided no opinion that the employment-related aggravation became permanent.

In November 1998, the claimant requested reconsideration of this decision and submitted a new report from Dr. Schwartzwald. The Office declined to review the merits of the case finding that the evidence submitted in support of the request for review was cumulative in nature and not sufficient to warrant a merit review of its prior decision.

The Board noted that the requirement for reopening a claim for merit review does not include the requirement that a claimant submit all evidence necessary to discharge his burden of proof. The requirement specifies only that the evidence be relevant and pertinent and not previously considered by the Office. A claimant has the right to secure a review of the merits of his case when he presents new evidence relevant to his contention that the decision of the Office is erroneous. The presentation of such new and relevant evidence creates a necessity for review of the full case record, i.e. of all of the evidence, in order to properly determine whether the newly supplied evidence, considered with that previously in the record, shifts the weight of the evidence in such a manner as to require modification of the earlier decision. If the Office determines that new evidence lacks substantive probative value, it may deny modification of the prior decision, but only after the case has been reviewed on its merits.

In this case, the Board found that the new report from Dr. Schwartzwald provided a level of explanation regarding causal relationship that was not in his prior reports. This rendered the new report relevant and not merely repetitious of prior reports. As such, the evidence warranted a review of the case on its merits.

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RECONSIDERATION - TIMELY FILING

Mary Ann P. DeGuzman, Docket No. 99-2319, Issued October 13, 2000

The salient discussion in this decision pertains to when the Board's decision represents a merit review of the case.

The Board noted that, in this case, the Office improperly assumed that the Board's order denying the claimant's petition for reconsideration constituted the last merit decision in the case. While a claimant is allowed an opportunity, by regulation, to petition the Board for reconsideration, such petition for reconsideration, unless granted by the Board, does not constitute a merit review of the case. In addressing the finality of the Board's decisions, the regulation provides:

The decision of the Board shall be final upon the expiration of 30 days from the date of filing of the order, unless the Board shall in its order fix a different period of time or reconsideration by the Board is granted.

The Board's decision becomes final unless the Board grants a petition for reconsideration and reopens the case. An order by the Board merely denying a petition for reconsideration, which does not grant reopening of the case, does not constitute a merit decision.

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RECISION OF ACCEPTANCE

Lavenia E. Bell, Docket No. 98-1813, Issued October 6, 2000

The issue in this case was whether the Office properly rescinded its acceptance of a claim for major depression.

The Board notes that, once the Office has accepted that the claimant's emotional condition arose in the performance of duty, in order to justify rescinding that acceptance, the Office must establish, through new evidence, legal argument or rationale, that the claimant's injury did not arise in the course of employment.

The Office initially denied the claim, finding that the evidence of record failed to establish an injury in the performance of duty. On appeal, the hearing representative found a number of covered factors of employment, namely that the claimant had not been allowed to train others as an on-the-job instructor, that negative statements concerning the claimant's performance were not supported by evidence and that the claimant reacted to events she deemed discriminatory. The hearing representative further found that the medical evidence of record supported that work factors caused her to become depressed and anxious. Consequently, the claim was accepted for major depression.

The claimant then filed a claim for recurrence of disability. The employing agency offered new evidence denying the factors of employment found in performance of duty. The Office reopened the claim for further review and found that the claimant failed to substantiate her allegations of discrimination and the evidence failed to establish that the employing agency erred or acted abusively in performing administrative matters. On appeal, the hearing representative found that the claimant had not submitted sufficient evidence to establish discrimination by employing agency personnel, that management mishandled the EAP referral or that the employing agency acted unreasonably in the administration of personnel matters.

The Board found that the evidence demonstrated that the employing agency had adequate reasons for not allowing the claimant to train others on-the-job, that the claimant's referral to EAP was an administrative matter and the claimant failed to establish error or abuse on the part of the employing agency

Consequently, the Board found that the Office met its burden to rescind acceptance of the claim based on new evidence submitted to the record.

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RECURRENCE

Donald O. Cundiff, Docket No. 99-2370, Issued October 16, 2000

The issue in this case was whether the claimant had met his burden of proof in establishing that he sustained a recurrence of disability causally related to his employment injury.

The Office accepted that the claimant acquired pleural thickening as a result of his twenty-seven years of federal employment as an asbestos worker and insulator. He was last exposed in 1987 when he resigned his position with the employing agency. Effective January 1988, the claimant was elected as business manager of an asbestos union and performed administrative duties for approximately nine years until he lost an election for another term in January 1997.

The claimant alleged a recurrence of disability effective January 1997, and filed a claim for continuing compensation due to his accepted condition. He submitted medical reports indicating that he could work, with restrictions against strenuous physical exertion, exposure to temperature extremes, airborne particles, fumes or fibrosing agents such as asbestos.

The Office denied the claimant's request for compensation for lost wages as the evidence of record did not support disability from work. The claimant requested an oral hearing where his representative argued that, if the claimant had not had a breathing impairment, he would have been able to go back to work for the employing establishment for a couple of years before retirement after he lost the election with the union. He argued that the claimant filed a claim for lost wages because he could not go back to work for the employing agency. The hearing representative affirmed the Office's decision denying compensation for lost wages.

The Board noted that the issue in this case was medical in nature. The claimant must establish that he was totally disabled as of January 1997 due to his accepted medical condition. The medical evidence of record indicated that the claimant could not perform exertional duties and outlined the claimant's previously evaluated restrictions when he worked for the employing agency.

The Board further noted that the claimant's work duties were restricted while at the employing agency due to his lung condition. However, there was no evidence that he resigned from this position because he was incapable of performing his assigned duties due to the accepted employment injury. Moreover, there was no evidence that the claimant was medically incapable of performing his assigned duties as a business manager with the union at any time during his tenure, or incapable of work after he left employment on January 1, 1997, due to his employment related condition. The Office's decision was affirmed.

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TIME LIMITATION - OCCUPATIONAL DISEASE

Duet Brinson, Docket No. 00-94, Issued December 13, 2000

The issue in this case was whether the claim for an occupational disease was barred by the applicable time limitation provisions of the Federal Employees' Compensation Act.

In this case, the claimant filed a claim for compensation on August 21, 1997 alleging that on February 8, 1985 he became aware that he had developed a skin condition caused or aggravated by his exposure to PCB in his federal employment. The case file contained evidence that the claimant's last exposure to PCB was prior to 1994 when he was placed in a light duty position with the employing agency where exposure would be nonexistent. Since the claimant did not file his claim for compensation until August 21, 1997, he was clearly outside the three-year time limitation period and his claim was therefore untimely.

However, the Board further noted that "appellant's claim would still be regarded as timely under section 8122(a)(1) of the Act if his immediate supervisor had actual knowledge of his alleged employment-related injury within 30 days. The knowledge must be such as to put the immediate superior reasonably on notice of appellant's injury. An employee must show not only that his immediate superior knew that he was injured, but also knew or reasonably should have known that it was an on-the-job injury. In the instant case, appellant's supervisor, Mr. Bakke submitted an April 29, 1994 statement indicating that he had knowledge of appellant's exposure to PCB throughout late 1984 and issued him a dispensary note by February 1985 for appellant to confirm exposure to PCB. The Board notes that Mr. Bakke's statement establishes that appellant's immediate supervisor had actual knowledge of injury. Consequently, the exception to the statute is met, and appellant's claim for compensation is timely."

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WAGE-EARNING CAPACITY - ACTUAL EARNINGS

Redrick T. Hobby, Docket No. 98-1826, Issued October 13, 2000

The notable issue in this case was whether the Office properly determined the claimant's loss of wage-earning capacity.

In this instance, the Office accepted that a traumatic injury of June 23, 1993 resulted in contusions of the neck, back and right ankle and a herniated nucleus pulposus at C5-6.

In August 1997, through vocational rehabilitation intervention, the claimant completed a course of studies that qualified him to work as a paralegal. On October 20, 1997, he began work as a paralegal for a law firm with wages of $280.00 per week. By decision dated November 10, 1997, the Office noted that the claimant had been re-employed as a paralegal effective October 20, 1997, and advised him that his compensation benefits would be reduced based upon his capacity to earn wages of $280.00 per week.

The Board reversed this decision finding that the claimant had been employed in this position for only 20 days when the Office made the wage-earning capacity determination.

The Board noted that wage-earning capacity is the measure of the employee's ability to earn wages in the open labor market under normal employment conditions. Generally, wages actually earned are the best measure of wage-earning capacity and, in the absence of evidence showing that they do not fairly and reasonably represent the injured employee's capacity, they must be accepted as such measure. Office procedures provide that a determination regarding whether actual earnings fairly and reasonably represent wage-earning capacity will be made after an employee has been working in a given position for more than 60 days.

Consequently, while it is appropriate to reduce a claimant's compensation benefits immediately upon his receipt of wages, the determination of whether those wages represent his wage earning capacity cannot be made until the employee has worked in that capacity for at least 60 days.

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WAGE-EARNING CAPACITY - MEDICAL EVIDENCE

Douglas W. Lenton, Docket No. 99-899, Issued December 15, 2000

The issue in this case was whether the Office met its burden of proof to establish that the position of hotel clerk represented the claimant's wage-earning capacity.

Vocational rehabilitation efforts were not successful and the Office proceeded to determine the claimant's wage-earning capacity in a selected position. By decision dated October 16, 1998, the Office found that the position of hotel clerk represented the claimant's wage-earning capacity and reduced compensation payments accordingly. In this decision, the Office granted the weight of the medical evidence to a referee medical specialist's reports from 1991 and 1992. The Office also noted that an October 5, 1995 work restriction evaluation by the claimant's treating physician supported the physical limitations and work restrictions found by the referee medical specialist.

Prior to the Office's October 16, 1998 decision, the claimant's attorney submitted medical reports from the claimant's treating physician dated April 15, 1997 and September 14, 1998 that supported total disability causally related to the accepted employment injury.

The Board reversed the Office's decision and benefits were reinstated retroactively. The Board noted that the referee specialist's reports were over six years old at the time of the Office's determination and the 1995 report from the treating physician was over 3 years old. These reports were, therefore, of limited probative value in determining the claimant's wage-earning capacity as of October 16, 1998. The Board held that the Office cannot modify compensation benefits without first obtaining a detailed current description of the claimant's disability and ability to perform work.

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FECA CIRCULAR NO. 02-04

December 2001


SUBJECT: SELECTED ECAB DECISIONS FOR JANUARY - MARCH, 2001

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

The subjects addressed include: attendant's allowance; compensation – basic/augmented compensation – dependents; emotional conditions – performance of duty – administrative/personnel actions – error or abuse; mailbox rule; medical opinions – clarification of second opinion report; medical examination – obstruction or refusal to undergo; medical expenses and treatment – statutory provision; medical expenses and treatment – termination of; medical opinions – conflict in medical opinion; overpayments – amount; performance of duty – consequential injuries; performance of duty – premises doctrine; reconsideration under section 8128 – basis for merit review; reconsideration under section 8128 – one year time limitation; schedule award – factors in calculating impairment; termination of compensation – abandonment of suitable work; termination of compensation – refusal of suitable work; wage-earning capacity – actual earnings.

 

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)

 

ATTENDANT'S ALLOWANCE

Michael W. Dombrowski, Docket No. 99-200, Issued January 12, 2001

The issue in this case was whether the Office properly determined the claimant's entitlement to an attendant's allowance. The Board upheld the Office's decision to approve fewer hours necessary for an attendant than requested by the claimant.

"Under this provision, the Office may pay an attendant's allowance upon finding that a claimant is so helpless that he or she is in need of constant care. A claimant is not required to need around-the-clock care, but only has to have a continually recurring need for assistance in personal matters. An attendant's allowance, however, is not intended to pay an attendant for performing domestic and housekeeping chores such as cooking, cleaning, doing the laundry or providing transportation services. It is intended to pay an attendant for assisting the claimant in personal needs, such as dressing, bathing or using the toilet. In requesting an attendant's allowance, the claimant bears the burden of proof in establishing by competent medical evidence that he or she needs attendant care within the meaning of the Act. An attendant's allowance is not granted simply upon request of a disabled employee or upon request of the employee's physicians. The need for attendant care must be established through rationalized medical opinion evidence. The Office, in turn, may pay up to $1,500.00 a month for full-time services, but it is not required to pay the maximum amount if not found to be necessary and reasonable for an attendant's services.

In this case, appellant sustained injury to his right shoulder on April 28, 1993 resulting in a dislocation and multiple surgeries and resections of the right shoulder joint. To support his request for an attendant's allowance, appellant provided a statement in which he estimated the amount of time required for care from individuals, including his daughters and ex-wife, to consist of approximately six hours a day. The Board notes that the Office specifically requested that Dr. Paxon, appellant's attending physician, review his medical records and comment regarding the necessity of an attendant's allowance; if determined to be necessary, the date an attendant was first required; and the hours of daily care required. Dr. Paxon was requested to comment on the hours of estimated attendant care listed by appellant.

In a report of July 16, 1997, Dr. Paxon noted his concurrence that attendant care was necessary for residuals of appellant's right shoulder condition, providing a review of the surgical procedures performed. However, he was not fully responsive to the Office's request as to the number of hours required for attendant care and how such care pertained to the accepted right shoulder condition. Dr. Paxon noted that appellant had listed long bathing times, but noted that such was due to a nonemployment-related perspiration dysfunction and to a 'plethora' of other orthopedic conditions besides those pertaining to the accepted right shoulder employment injury for which appellant soaked in heated water. He acknowledged that the six hours per day appellant provided in listed daily activities appeared excessive but did not provide any independent assessment or estimate of the time required for necessary attendant care to assist in dressing, bathing or using the toilet.

The Board finds, after review of appellant's statement and the medical evidence of record, that the Office properly allowed four hours a day of attendant care from April 23, 1993 to April 7, 1997 for 136 hours. As the Office is only required to pay an attendant as much as it finds reasonable and necessary, the Office did not err in authorizing the attendant's allowance for two hours of bathing, one hour for feeding, and one-half hour respectively for dressing and using the toilet. Appellant has failed to submit any evidence to establish that he is entitled to a greater attendant's allowance than that he has received."

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COMPENSATION - BASIC/AUGMENTED COMPENSATION - DEPENDENTS

Lois Masengale, Docket No. 99-1206, Issued February 22, 2001

The issue in this case involved an overpayment of compensation based on the Office's determination that a child over age 18 was not in full-time student status.

The Board reversed the Office's decision and provided the following discussion of student status:

"Section 8133(b) (of the Federal Employees' Compensation Act) provides in pertinent part that the compensation payable under subsection (a) is paid from the time of death until a child dies, marries or becomes 18 years of age. Notwithstanding, compensation that would otherwise end because the child has reached 18 years of age shall continue if he is a student as defined by section 8101 for as long as he continues to be a student, up until age 23 or he marries.

Section 8101(17) provides that student means an individual under 23 years of age who has not completed four years of education beyond the high school level and who is regularly pursuing a full-time course of study or training at an accredited institution...

Section 10.5(a)(25) of the Code of Federal Regulations, defining 'student' states: 'An individual continues to be a student during any interim between school years if the interim does not exceed four months and the individual shows to the satisfaction of the Office that he or she has a bona fide intention of continuing to pursue a full-time course of education or training during the semester or other enrollment period immediately after the interim, or during periods of reasonable duration during which, in the judgement of the Office, the individual is prevented by factors beyond his or her control from pursuing his or her education.'

The Federal (FECA) Procedure Manual states: 'Where a student is prevented by reasons beyond his or her control (such as a brief but serious illness) from continuing in school, compensation may be continued for a period of reasonable duration. However, any such period would be counted toward the four years of entitlement. The claims examiner will determine what constitutes 'reason beyond the control' of the beneficiary and decide what may be considered a period of reasonable duration during which compensation may be continued. The claims examiner will also place a memorandum in the file outlining the circumstances of the case and the reasons for the decision.'

The record establishes that throughout the overpayment period, Larry provided no indication that he did not want to pursue his education. Larry never dropped a course because he decided that he did not want to attend school. Rather, when appellant suggested that Larry take a semester off, he said he did not want to give up. In addition, appellant testified that there was not a time since August 1994 that Larry did not attend summer school.

Larry switched from full-time to half-time status on several occasions because he was unable to manage his courseload due to his learning disability, depression and alcoholism. His difficulties are well documented in the record. Also, he was advised by Washington State University to drop courses so he would not fail. Up until March 1996, when Larry experienced alcoholism, two of the three half-time periods, November 18 through December 23, 1994 and April 14 through May 12, 1995, lasted only one month, and the other period October 27 through December 22, 1995, lasted almost two months. During the overpayment period the record establishes that there was not a period of four months when Larry did not attend school.

Contrary to the hearing representative's finding that Larry's conditions were chronic according to Dr. Hones, a licensed psychologist, Larry overcame his emotional and learning disability condition in high school and achieved high grades until his father's death.

Based on the factual circumstances of this case, the Board finds that Larry was prevented from factors beyond his control from keeping up with a full course load, but was going to school as full time as he could manage up through June 30, 1997. Moreover, the record establishes a bona fide intent on his part to pursue his education full time. Inasmuch as the evidence of record establishes that Larry was a student under the Act from November 19, 1994 through June 30, 1997, the Board finds that the Office improperly determined that appellant received an overpayment in the amount of $7,876.99 during this period."

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EMOTIONAL CONDITIONS - PERFORMANCE OF DUTY - ADMINISTRATIVE/PERSONNEL ACTIONS - ERROR OR ABUSE

Jacqueline E. Brown, Docket No. 99-1720, Issued January 29, 2001

The issue in this case was whether the claimant sustained an emotional condition in the performance of duty. The interesting discussion involves erroneous administrative or personnel actions taken by the employing agency where there was no intentional wrongdoing.

The Board stated: "Most of the employment incidents and conditions to which appellant attributes her emotional condition concern administrative or personnel actions by the employing establishment. Appellant's primary contention is that she experienced stress due to the employing establishment's 'tampering' with her paychecks. The employing establishment acknowledged that it paid appellant incorrectly following a December 1, 1993 settlement agreement that afforded appellant pay retention effective May 30, 1993, and that the error in her retained pay was not corrected until June 1997. In her February 11, 1999 decision, an Office hearing representative found that the mistakes and miscalculations in appellant's back pay were not compensable because they were not intentional. However, intentional wrongdoing is not required under the Act; an error from a misunderstanding at the employing establishment may be compensable. Appellant has established that the employing establishment erred by paying her at the wrong rate and also in sending her letters in February 1998 erroneously indicating that certain amounts would be deducted from her salary to pay for appellant's health benefits during her period of leave without pay from June 1997 to January 1998."

Although the Board found that the claimant had established compensable factors of employment, the Office's decision was modified but affirmed as the medical evidence was insufficient.

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MAILBOX RULE

Ethel Walker-Anderson, Docket No. 99-1284, Issued March 15, 2001

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

The Office accepted a work related medical condition of mild, chronic, low back strain. By decision dated May 13, 1996, the Office found that the evidence failed to demonstrate that the claimant's current condition was causally related to her August 3, 1984 work injury. The claimant requested reconsideration and, by decision dated November 25, 1996, the Office denied modification of its prior decision.

By letter dated November 24, 1998, the claimant, through her authorized union representative, requested reconsideration, stating that a previous request for reconsideration dated November 24, 1997 had been mailed to the Office but no response had been received. The claimant also submitted a copy of the November 24, 1997 letter.

By decision dated December 23, 1998, the Office found the claimant's request for reconsideration was not timely filed within the one-year limit and that it did not present clear evidence of error. The Office noted that the November 24, 1997 request did not appear in the case file but the request had been reviewed and noted that no new evidence was submitted with this request for reconsideration.

The Board found that the request was timely filed noting that "While the original of appellant's representative's November 24, 1997 request for reconsideration does not appear in the case record, the copy submitted with the November 24, 1998 letter reflects a proper address and mailing in the ordinary course of business. The copy of the November 24, 1997 letter is on the letterhead of a business organization, the National Association of Letter Carriers, that has a mailing custom or practice. Through the application of the 'mailbox rule' this creates a presumption that the Office received the November 24, 1997 request for reconsideration. Corroborating the existence and mailing of the November 24, 1997 request for reconsideration are medical reports dated January 10, February 24 and October 24, 1997, all of which are date-stamped as received by the Office on November 25, 1997."

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MEDICAL EXAMINATION - OBSTRUCTION OR REFUSAL TO UNDERGO

Judy R. Tomlin, Docket No. 99-759, Issued February 15, 2001

This decision contains an interesting discussion of obstruction of a medical examination.

The Office initially accepted that the claimant sustained a temporary aggravation of adjustment and dysthymic disorder as a result of factors of her employment. By decision dated November 14, 1995, the Office determined that the temporary aggravation had ceased.

Subsequently, the Office advised the claimant that, based upon submission of additional medical evidence, a conflict existed in the medical opinion evidence between the claimant's treating physician and a second opinion physician. The claimant advised that she could not see "another strange" doctor and would not attend any future examinations by the second opinion physician. The Office, therefore, denied modification following a merit review of the record.

The claimant again requested reconsideration. The Office notified the claimant that she was scheduled for a medical appointment with a Board-certified psychiatrist and that the impartial medical evaluation was required to resolve a conflict in the medical opinion evidence.

The claimant indicated that her illness precluded her from seeing any new physicians stating: "I am not refusing the examination, rather my mental limitation precludes me from going...I get severe emotional reactions even thinking about doing these things."

After providing appropriate notification of proposed suspension of compensation and consideration of additional medical evidence submitted, the Office found that the claimant had obstructed the impartial medical examination and had failed to establish good cause for refusing to undergo the medical evaluation. The Office further determined that the evidence of record was in conflict and therefore insufficient to modify the Office decision that the accepted temporary aggravation had ceased.

The Board found that the Office properly suspended the claimant's eligibility to compensation on the grounds that she obstructed a medical examination. The Board noted that the claimant submitted a report from her attending physician that stated she was precluded from attending any further medical evaluations scheduled by the Office. The Office medical adviser reviewed this report and opined that the attending physician's "conclusion was unreasonable and reinforced the need for another opinion from a psychiatrist".

The Board concluded: "Because appellant's refusal to attend an impartial medical evaluation appears from the record to result from her own subjective fears and there is no reasoned medical opinion to establish that such an evaluation would aggravate appellant's emotional condition, the Board concludes that appellant has not shown good cause for her refusal to attend an impartial medical evaluation."

In addition, the Board found that the Office properly denied modification of the prior decision for the reason that, until the claimant "undergoes an impartial medical evaluation, the medical evidence remains insufficient to warrant modification of her claim to reflect that she was disabled from a work-related condition on or after October 25, 1994".

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MEDICAL EXAMINATION - OBSTRUCTION OR REFUSAL TO UNDERGO

Lula Jones, Docket No. 00-1472, Issued March 27, 2001

The issue in this case was whether the Office properly determined that the claimant's request for reconsideration was untimely filed. However, the interesting discussion centered on the Office's suspension of compensation benefits due to obstruction of a medical examination.

The Office accepted that the claimant developed right DeQuervain's tenosynovitis due to factors of her federal employment. The employing agency subsequently offered the claimant a modified job that she accepted on August 12, 1998.

The Office notified the claimant that she had been scheduled for a functional capacity evaluation to determine the extent and degree of her remaining disability. The claimant declined to submit to the functional capacity evaluation. After appropriate development and notification, the Office suspended her compensation effective September 24, 1998, because she obstructed a medical examination.

By letter dated September 8, 1999, the claimant requested reconsideration, stated that she would comply with further requests and asked that her compensation be reinstated as soon as possible. The Office determined that, "although the word reconsideration was used in appellant's September 8, 1999 letter, appellant had actually indicated her willingness to cooperate and requested reinstatement. The claims examiner determined therefore that a new medical evaluation should be scheduled and the case should not be assigned as a 'reconsideration'."

The Office then rescheduled the claimant for a functional capacity evaluation on October 25, 1999, and advised her of the consequences of failing to cooperate or refusing to submit to the evaluation.

The claimant appeared for the functional capacity evaluation on October 25, 1999. The rehabilitation counselor indicated that, "appellant's scores taken from pain questionnaires were compared to observed behavior and movement patterns during the evaluation tasks and it was determined that her perception of pain and disability was disproportionate to impairment. It was also determined that appellant exhibited signs of exaggeration and that the test results were invalid, which indicated that appellant gave a submaximal effort throughout the entire evaluation."

By letter dated November 18, 1999, the Office advised the claimant that the September 24, 1999 decision suspending compensation remained in effect since she did not fully cooperate with the October 25, 1999 evaluation. By letter dated December 2, 1999, the claimant requested reconsideration of the November 18, 1999 letter. By decision dated December 23, 1999, the Office denied the request for reconsideration on the basis that it was not timely filed, explaining that the November 18, 1999 letter was not a decision but an explanation that the September 24, 1998 decision remained in effect. The claimant's right to reconsideration had, therefore, expired one year from the September 24, 1998 decision.

The Board remanded the case stating:

"The record indicates that the Office's September 24, 1998 decision properly suspended appellant's compensation, effective July 24, 1994, as she had refused to appear at a medical examination ordered pursuant to section 8123. The Board finds, however, that in its December 23, 1999 decision, the Office improperly determined the matter of her compensation through the appeal process of a reconsideration and not on the issue regarding her suspension of compensation.

Appellant indicated in her September 8, 1999 request letter that she was willing to cooperate with future requests and asked that her benefits be reinstated as soon as possible. Pursuant to 20 C.F.R. § 10.323, there is no time limit on a claimant expressing a willingness to comply. Following an October 25, 1999 evaluation which indicated that she failed to fully cooperate with testing, the Office notified her that its prior decision dated September 24, 1998 remained in effect and did not issue a separate suspension decision that would afford appellant new appeal rights. In its December 23, 1999 decision, the Office did not determine whether appellant's compensation should be reinstated but that appellant's December 2, 1999 reconsideration request was untimely with respect to the September 24, 1998 decision. The Board therefore vacates the Office's December 23, 1999 decision and remands the case for the Office to properly address the issue of whether appellant's compensation should be reinstated pursuant to her September 8, 1999 requests, pursuant to 20 C.F.R. § 10.323."

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MEDICAL EXPENSES AND TREATMENT - STATUTORY PROVISION

William C. Chase, III, Docket No. 99-865, Issued January 4, 2001

This decision contains an interesting discussion by the Board of section 8103 of the Federal Employees' Compensation Act. The issue before the Board was whether the Office met its burden of proof in terminating authorization for chiropractic treatment after January 8, 1996 for an accepted back injury of January 12, 1988.

The Board's discussion is as follows:

"Section 8103(3) of the Federal Employee's (sic) Act, defining services and supplies, states: 'Reimbursable chiropractic services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist, and subject to regulation by the Secretary.' The diagnosis of subluxation must, however, also be established as employment related for chiropractic treatment to be reimbursable.

In this case, the Office relied on the failure of chiropractic treatment to cure, provide relief, reduce the degree or period of disability, or aid in lessening the amount of compensation to terminate chiropractic benefits.

Under section 8103 of the Act, the Office has the authority to provide medical services, appliances and supplies to an employee injured while in the performance of duty which the Office considers likely to cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of monthly compensation. In interpreting section 8103, the Board has recognized that the Office has broad discretion in approving services provided under the Act.

The Office has the general objective of ensuring that an employee recovers from his or her injury to the fullest extent possible in the shortest amount of time. The Office, therefore, has broad administrative discretion in choosing the means to achieve this goal. The only limitation on the Office's authority is that of reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probably (sic) deductions from know (sic) facts.

In its prior decision, the Board found that the Office failed to give adequate notice to appellant of its proposal to terminate chiropractic treatment under section 8103. The evidence has not changed since the Board made this determination. There is still no indication in the medical evidence that the continuing chiropractic treatment was furthering the objectives of section 8103. The only relevant evidence submitted was an opinion by Dr. Hepner (the Office's second opinion examiner) that appellant had little change in his symptoms and that there was nothing else he had to offer him. This opinion does not indicate that further chiropractic treatment would further the goals under section 8103."

The Office's decision was affirmed.

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MEDICAL EXPENSES AND TREATMENT - TERMINATION OF

John C. Knecht, Docket No. 99-742, Issued January 17, 2001
Dorothy Reese, Docket No. 98-1412, Issued January 29, 2001

In both of these cases, the Board found that the Office failed to consider the termination of medical benefits and the termination of compensation as separate issues. The resolution of the issue of ongoing compensation does not necessarily resolve the issue of ongoing entitlement to medical benefits.

In the case of John Knecht, the Office terminated compensation for wage loss and medical benefits based on a second opinion examination. The Board upheld the termination of compensation for wage loss but reversed the termination of medical benefits. The Board noted that the Office terminated compensation and medical benefits by decision dated January 9, 1997. However, there was no indication that a pre-termination notice for on-going medical benefits was sent to the claimant prior to termination. The Board, therefore, upheld the Office's termination of compensation but reversed the Office's termination of medical benefits.

In the case of Dorothy Reese, the Office finalized a proposed termination of compensation by decision dated January 23, 1997 finding that the well-rationalized report of the impartial medical examiner was entitled to special weight and, therefore, constituted the weight of the medical opinion evidence. The Board upheld the Office's termination of compensation finding that the impartial medical opinion was sufficiently well rationalized and based on a proper factual and medical background to entitle the report to special weight. However, the Board reversed the Office's termination of medical benefits stating: "Because Dr. Wert's impartial medical report did not address whether appellant had any nondisabling residuals of her accepted employment-related conditions, it does not constitute the weight of the medical opinion evidence on this issue and a conflict remains unresolved."

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MEDICAL OPINIONS - CLARIFICATION OF SECOND OPINION REPORT

Jessie M. Littleford, Docket No. 00-675, Issued March 7, 2001
Tamarra E. Espeut, Docket No. 99-672, Issued March 15, 2001
Richard F. Bequette, Docket No. 00-1145, Issued March 8, 2001

In the Jessie M. Littleford case, the Office directed the claimant to undergo a second opinion examination to clarify whether her claimed condition of toxic polyneuropathy was causally related to exposure to various solvents and chemicals during her federal employment. The second opinion physician requested authorization to perform a number of tests to rule out organic cause for the claimant's medical condition. The Office authorized these tests but stated that the second opinion physician had 30 days to submit his test results. When the results were not forthcoming in 30 days, the Office denied the claim.

In the Tamarra Espeut case, the Office referred the claim to its medical advisor for an opinion as to the appropriateness of a recommended right knee surgical procedure. The medical advisor noted that the indications for surgery were unclear and recommended a second opinion surgical consultation to obtain a proper diagnosis of the claimant's right knee condition and to ascertain whether surgery was required. The Office did not refer the claimant for further medical evaluation as recommended but instead denied authorization of the recommended surgical procedure.

In the Richard Bequette case, the Office referred a medical report to its medical advisor for a determination on the percentage of permanent impairment based on the A.M.A. Guides, 4th edition. The medical advisor's calculations were then forwarded to the claimant's attending physician for concurrence. The attending physician indicated that the calculations did not consider the claimant's pain or weakness. The Office medical advisor, when asked why these were not included, indicated that the attending physician did not provide information for specific weakness, atrophy or nerve impairment. He suggested that the Office should send the attending physician the appropriate pages of the A.M.A. Guides to document the permanent partial impairment for muscle and nerve impairment. The Office did not pursue its medical advisor's recommendation but paid a schedule award based on the medical advisor's initial calculations.

In all three cases the Board remanded the claim for additional medical development noting that: "Once the Office undertakes to develop the medical evidence, it has the responsibility to do so in a proper manner". If the Office requests a medical opinion from a medical advisor, SECOP or referee, it has the obligation to follow through on the physician's recommendations or provide an explanation of why those recommendations were not followed.

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MEDICAL OPINIONS - CONFLICT IN MEDICAL OPINION

Johnny L. Sammons, Docket No. 00-524, Issued January 5, 2001

The issue in this case was whether the Office properly terminated the claimant's compensation. However, the issue hinges on whether the second opinion examiner's report was sufficient to establish a conflict in medical opinion.

The Board's discussion is as follows:

"The Office referred appellant to Dr. Thomas Whitesides, a Board-certified orthopedic surgeon, for an examination and second opinion. In an October 14, 1997 report, Dr. Whitesides indicated that appellant had low thoracic pain and tenderness to palpation. In a November 25, 1997 report, Dr. Whitesides reported that a second CT scan and a bone scan were within normal limits, showing no lesions or fracture. An Office claims examiner, in a January 28, 1998 letter, asked whether appellant had any objective evidence of disability and whether the strain appellant had sustained on January 8, 1997 had resolved. In a February 2, 1998 memorandum, the claims examiner noted that Dr. Whitesides had called her in reference to the January 28, 1998 letter. He indicated that he had been unaware that the Office had requested a second opinion from him regarding appellant, noting that he apparently had not received the Office's letter requesting such an examination. The claims examiner reported that Dr. Whitesides stated appellant only had subjective complaints of pain with no objective evidence of disability. She related that the doctor indicated that appellant had no objective evidence to show any residuals from the strain he had sustained a year previously. The Office subsequently received a copy of the January 28, 1998 letter from Dr. Whitesides who answered 'no' to the question of whether appellant had any objective evidence of disability and 'probably' to the question of whether the strain appellant had sustained had resolved."

The Office determined that a conflict of medical opinion existed between the claimant's attending physician and Dr. Whitesides. The claimant was, therefore, referred for an impartial medical examination.

The Board reversed the Office's decision to terminate compensation stating: "The Office's decision was based on the conclusion that the report of Dr. James, acting as an impartial medical specialist, resolved a conflict in the medical evidence between Drs. Whitesides and Earls. A review of the record, however, shows that Dr. Whitesides' written report on the issues of whether appellant had any objective evidence of disability and whether the effects of the employment injury had resolved consisted of one word answers on a copy of the letter sent to him by the Office. The only report of Dr. Whitesides' rationale for his opinion was cited in a memorandum of a telephone conversation he had with an Office claims examiner. A report of an oral conversation of medical rationale is not sufficiently reliable to find that the written report of this case was adequate to cause a conflict in the medical evidence. Such a medical report, with rationale, must be in writing before it can be considered as probative, reliable medical evidence. The description of Dr. Whitesides' oral report, therefore, was insufficient to cause a conflict in the medical evidence. As a result, Dr. James cannot be considered an impartial medical specialist."

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OVERPAYMENTS - AMOUNT

Jessie M. Banks, Docket No. 00-481, Issued March 16, 2001

The issue of interest before the Board in this case was whether the Office properly determined that the claimant received an overpayment of compensation in the amount of $4,996.40.

The Office accepted lumbosacral and cervical sprains and a contusion of the left thigh as resulting from a work-related incident on April 26, 1995.

By decision dated September 17, 1998, the Office terminated compensation benefits as the weight of the medical evidence failed to show ongoing residuals of the accepted work injury. However, compensation benefits were not terminated as of the date of the decision.

By decision dated February 3, 1999, the Office found that the claimant had been overpaid benefits in the amount of $6,718.44. The overpayment occurred because the claimant's compensation was terminated by decision dated September 17, 1998 but benefit checks continued through January 1, 1999. The Office further found that the claimant was not without fault in the creation of the overpayment. By decision dated April 7, 1999, the Office finalized its preliminary overpayment decision.

The claimant requested reconsideration of the overpayment decision, arguing that she had actually returned to work on September 28, 1998 and not September 17, 1998 and that she cashed only two of the four checks she received after the latter date. The Office agreed that one of the checks had been returned and adjusted the amount of the overpayment accordingly.

The Board found that the Office improperly determined that the claimant received an overpayment of compensation in the amount of $4,996.40 for the period September 17, 1998 to January 1, 1999.

The Board specifically noted that the claimant alleged that she did not cash two of the four benefit checks she received during the period in question. The Office determined that one of the four checks was returned. However, the record contains no evidence that the claimant cashed the check covering December 6, 1998 through January 1, 1999.

The case was remanded for further development to determine if the check in question was actually cashed prior to a determination of the amount of the overpayment.

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PERFORMANCE OF DUTY - CONSEQUENTIAL INJURIES

Pamela G. Gilmore, Docket No. 00-318, Issued March 16, 2001

The issue in this case was whether the claimant sustained an injury while in the performance of duty.

The claimant filed a Notice of Traumatic Injury alleging that on February 18, 1997, she injured her right hip, buttock, shoulder and knee when she fell on a wet parking lot after stepping off the walkway from the Bainbridge Ferry Terminal. The claimant further alleged that, at the time of the February 18, 1997 injury, she was returning from a visit to her physician for treatment of her February 13, 1997 employment related injury. The employing agency confirmed that the claimant was receiving continuation of pay during this visit to her physician.

The Office initially denied the claim on the grounds that the evidence of record failed to establish that the claimant sustained an injury as a result of the incident on February 18, 1997.

Following an oral hearing, the Office's decision was affirmed but modified to reflect that the February 18, 1997 incident did not occur in the performance of duty.

The Board found that the February 18, 1997 incident did occur in the performance of duty. "The Board has held that when an employee suffers additional injuries because of an accident in the course of a journey to a doctor's office occasioned by a compensable injury, the additional injuries are generally held compensable. There are exceptions in cases where there is an added factor weakening the causal connection such as doubt about whether the trip was really authorized, when the purpose of the trip was not treatment but examination for purposes of meeting the employing establishment's requirement of a physical fitness certificate or when the original injury was not work related."

In this case, the evidence clearly indicated that the claimant was returning from a visit to her physician for treatment of an accepted work related injury. Consequently, the February 18, 1997 incident occurred in the performance of duty.

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PERFORMANCE OF DUTY - PREMISES DOCTRINE

Eileen R. Gibbons, Docket No. 99-2517, Issued January 10, 2001

The issue in this case was whether the claimant was injured in the performance of duty when she slipped on wet pavement in the employing agency's parking lot.

The incident occurred during the claimant's morning break. She had experienced a flat tire on the way to work and had returned to the parking lot during her morning break to check the tire for appropriate size for a replacement tire. The claimant slipped and fell in the parking lot while she was engaged in this activity.

The Office denied the claim finding that the incident did not occur in the performance of duty.

The Board reversed the Office's decision, finding that the claimant had established that an injury occurred in the performance of duty.

"In the present case, appellant fell on the employing establishment premises while walking to her personal vehicle located on the employing establishment parking lot. Appellant's supervisor confirmed that the employing establishment controlled and owned the parking lot. At the time of her fall, appellant was on an authorized break, going to inspect the size of her tire so as to replace it after experiencing a flat on the way to work that morning. The evidence establishes that appellant was at a place she would be expected to be in connection with her employment, walking to her personal vehicle while on employing establishment property and thus the incident occurred at a place where appellant was reasonably expected to be as a result of her employment.

Further, appellant was engaged in an activity which may be characterized as reasonably incidental to the conditions of her employment. Although appellant's activity of inspecting the size of her tire from her personal vehicle was not required by the employing establishment, the Board finds that it can be characterized as an activity reasonably incidental to her employment. Appellant's action of walking to her personal vehicle, while on an authorized break, was connected to the work she was employed to perform because it is reasonable that appellant might leave the building on her break, to walk to her vehicle parked on employing establishment property. The record also indicated other employees apparently took smoking breaks in the same area where appellant fell and there is no evidence that employees were prohibited from this area during breaks. Therefore, appellant was engaged in an action incidental to the duties of her employment."


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RECONSIDERATION UNDER SECTION 8128 - BASIS FOR MERIT REVIEW

Cheryl L. Bryant, Docket No. 00-781, Issued March 1, 2001

The issue before the Board in this case was whether the Office properly denied the claimant's request for reconsideration.

In September 1992, the claimant was injured in the performance of duty. The claim was accepted for the conditions of lumbar strain, contusion to the left hip and abrasions to both feet.

On June 16, 1996, the claimant filed a notice of recurrence, alleging that she had sustained a recurrence of disability on July 1, 1993 as a result of the September 2, 1992 employment injury. The Office denied this claim on the grounds that the evidence of record failed to demonstrate a causal relationship between the work incident of September 15, 1992 and the claimed recurrence.

Subsequent to a request for reconsideration, the Office performed a merit review of the file but denied modification of the prior decision. The Office noted that the claimant had sustained three automobile accidents and the medical opinions submitted to support the claim were of limited probative value because it was not known whether the physicians were privy to any medical records for prior injuries or were aware of all the intervening injuries.

The claimant again requested reconsideration of her claim in July 1999. In support of this request she submitted physical therapy records, treatment records and medical notes from 1993, as well as treatment records from June 17, 1991. In October 1999, the Office denied the claimant's request for reconsideration without reviewing the merits of her claim. The Office found that the claimant presented no argument for error and that the evidence was not relevant to the employment injury of September 2, 1992.

The Board upheld this decision noting: "In its July 17, 1998 decision on the merits of appellant's claim, the Office explained that the medical opinion evidence was deficient because it was not known whether the physicians who rendered the opinions were knowledgeable about appellant's other injuries. The point was that medical records relating to these other injuries should be made available to the opining physicians so that they may base their opinions on a sufficiently complete and accurate factual and medical background. It is the opinion of these physicians, not the background records themselves, that is relevant to the issue of causal relationship."

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RECONSIDERATION UNDER SECTION 8128 - ONE YEAR TIME LIMITATION

Ellis Hadnot, Docket No. 99-1495, Issued February 16, 2001
Darrell Stovall, Docket No. 99-2562, Issued March 14, 2001
Howard Y. Miyashiro, Docket No. 01-313, Issued March 19, 2001

The issue in all of these cases centers on the Office's handling of reconsideration requests particularly with respect to determining whether the request was timely filed.

In the case of Ellis Hadnot, the hearing representative's decision was dated November 26, 1997 and was accompanied by a cover letter dated December 1, 1997. By letter dated December 2, 1998 (but date-stamped as received by the Office on December 1, 1998) the claimant requested reconsideration. The request was denied as not timely filed. The Board remanded the case for consideration of a timely filed request for reconsideration, noting: "Where an Office hearing representative prepares his decision on one date, which appears on the decision, but does not mail it to appellant until a later date appearing on a cover letter accompanying the decision, the date of issuance, for purposes of computing when time begins to run to file a request for reconsideration, will be considered the date of mailing. This is consistent with the Office's regulation in place at the time of the Office's December 7, 1998 decision, which stated that the Office hearing representative 'shall terminate the hearing by mailing a copy of the decision, setting forth the basis therefor, to the claimant's last known address and to the claimant's representative, if any'. It is also consistent with Board decisions finding that an Office decision was not properly issued where it was sent to an incorrect address or where the decision was not sent to the claimant's authorized representative."

In the case of Darrell Stovall, the claimant filed a CA-2a dated January 19, 1999 on which he indicated that he was submitting new medical evidence and requested that the Office "please look at" this new evidence and "reopen" his case. On June 25, 1999, the claimant submitted a reconsideration request and resubmitted some of the new medical evidence. The Office denied the June 25, 1999 reconsideration request as not timely filed. The Board remanded the case stating: "The Board has held that a request for reconsideration need not be on any particular form but must be in writing, identify the decision and the specific issue or issues for which reconsideration is being requested and be accompanied by relevant and pertinent new evidence or argument not previously considered. Appellant's submission of the January 19, 1999 recurrence claim form in which he indicated that he sought request for reconsideration of the Office's decision and was submitting new evidence in support of his request is sufficient to constitute a valid request for reconsideration."

In the case of Howard Miyashiro, on October 23, 2000 he filed an application for review of an August 1, 2000 non-merit review decision. This request was denied on the grounds that the request had not been filed within one year of Office merit decisions dated March 25, 1996 and January 16, 1997 and did not establish clear evidence of error. On January 11, 2001, the Director of the Office filed a motion to remand the case. "The Director advised that, as the Board issued a merit decision on December 23, 1999, appellant's request for reconsideration received by the Office on July 26, 2000 had been timely filed and, therefore, the August 1, 2000 decision of the Office was incorrect." The Board concurred with the Director's request and the case was remanded. While decisions issued by the Board are not subject to review by the Office, a right to reconsideration within one year accompanies any merit decision on the issues. This includes any hearing or review of the written record decision, any denial of modification following a reconsideration, any merit decision by the Employees' Compensation Appeals Board (ECAB) and any merit decision following action by the ECAB.

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SCHEDULE AWARD - FACTORS IN CALCULATING IMPAIRMENT

John T. Hanoumis, Docket No. 00-1205, Issued March 13, 2001

The issue is whether the claimant is entitled to more than 100% loss of his left fourth finger.

The Office accepted the claim for fracture of the left "pinky" finger (with subsequent hardware removal) and amputation of the left fourth finger.

Subsequent to appropriate development, the Office determined that the claimant had sustained a 100% loss of the left fourth finger and issued an award based on that finding.

The Board found that the case was not in posture for a decision. The Board noted that: "When the residuals of an injury to a member of the body specified in the schedule award provisions of the Act extend into an adjoining area of a member also enumerated in the schedule, such as an injury of a finger into the hand, of a hand into the arm or of a foot into the leg, the schedule award should be made on the basis of the percentage loss of use of the larger member."

In this case, the Board found that the medical evidence of record noted not only the 100% loss of use of the left fourth finger but also diminished grip strength of the left hand. The case was, therefore, remanded for further development to determine whether the left fourth finger impairment extended into the left hand.

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TERMINATION OF COMPENSATION - ABANDONMENT OF SUITABLE WORK

Ronald D. Blackburn, Docket No. 00-540, Issued March 9, 2001

The issue before the Board in this case was whether the Office properly denied the claimant's request for vocational rehabilitation services. However, the interesting discussion hinged on whether the Office properly invoked section 8106(c)(2), finding that the claimant had abandoned suitable work.

The claim was accepted for a right wrist carpal scaphoid fracture with delayed union. In January 1997, the claimant was released by his treating physician to return to light duty work. The employing agency provided a light duty assignment within those restrictions and the claimant returned to work in January 1997.

Effective August 1, 1997, the claimant was removed from the employing agency for cause. He had a series of unauthorized absences, had attempted to falsify time and attendance records and failed to follow procedures for requesting leave.

In July 1998, the Office awarded the claimant a schedule award for 18% permanent impairment of the right upper extremity. Following the end of the schedule award, the Office undertook development to determine whether the claimant was entitled to vocational rehabilitation services.

By decision dated July 12, 1999, the Office denied vocational rehabilitation services on the grounds that the claimant had abandoned suitable work and, thus, forfeited all future entitlement to compensation.

The Board found that the Office did not appropriately invoke the penalty provisions of section 8106(c). The Board noted that: "The threshold issue is whether appellant did in fact abandon suitable work...To establish that appellant has refused or abandoned suitable work, the Office must first substantiate that the position offered was consistent with appellant's physical limitations, provide notice to the claimant of the penalty provision under section 8106(c)(2) and give the claimant a reasonable period to accept or reject the position or submit evidence or reasons why the position is not suitable and determine whether the reasons for declining or refusing the position were justified."

In this case, the Board found that the Office failed to give notice that the position he began performing in January 1997 was considered suitable work, or of the penalties for refusing or abandoning such employment. Therefore, "appellant cannot be found to have 'constructively' abandoned suitable work".

The Board, however, upheld the Office's decision to deny vocational rehabilitation services. It was noted that the Office exercised its discretion and denied the claimant's request for vocational rehabilitation services based upon an accurate reading of the facts of the case. "The Board finds that this exercise of discretion stands independently of the Office's erroneous invocation of section 8106(c) standards, which thus constitutes harmless error on the issue of denial of vocational rehabilitation services."

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TERMINATION OF COMPENSATION - REFUSAL OF SUITABLE WORK

Ronald J. Harper, Docket No. 99-1875, Issued March 27, 2001

The issue is whether the Office properly terminated the claimant's compensation benefits for refusal to accept a suitable job offer.

The Office accepted a claim for left knee sprain and authorized partial lateral meniscectomy surgery on March 17, 1997.

On June 1, 1997, the claimant's attending orthopedic surgeon approved a limited-duty job offer provided by the employing agency. On June 10, 1997, the claimant rejected the job offer based on his attending psychiatrist's orders that he could not work at the employing agency.

On June 19, 1997, the Office found the limited-duty position to be suitable, informed him of the penalty provisions of 5 U.S.C. § 8106(c) and allowed him 30 days to accept the position or offer his reasons for refusal.

The claimant, through counsel, contended that he was unable to perform the offered limited-duty position due to his emotional condition, which rendered him totally disabled, and his knee injury that prevented him from performing even sedentary duty. The claimant submitted medical evidence in support of these contentions.

Following pertinent development, the Office informed the claimant that his reasons for refusing the job offer were not acceptable and allowed him 15 additional days to accept the position. By decision dated September 31, 1997, the Office terminated the claimant's compensation benefits as he refused an offer of suitable work. "The Office found that evidence of record failed to establish that appellant's psychiatric condition was due to his October 15, 1996 employment injury and that appellant had a long history of psychiatric illness related to his military service." The claimant, through counsel, argued on appeal that the disabling psychiatric condition was a subsequently acquired medical condition.

The Board found that the Office failed to meet its burden of proof in terminating the claimant's compensation benefits for refusal to accept suitable employment.

The Board noted, "under the Office's procedures pertaining to suitable work, if the file documents a medical 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." The Board found that, once the issue of the claimant's disability due to his depression was raised by his attending physicians, the Office erred by not obtaining a medical opinion that the claimant could perform his duties as described in the offered position despite his emotional condition.

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WAGE-EARNING CAPACITY - ACTUAL EARNINGS

Catherine K. Grabowski, Docket No. 00-1056, Issued March 6, 2001

This decision is similar to a number of decisions issued by the Board. The issue in all of these cases was whether the Office properly determined the claimant's wage-earning capacity based on actual earnings in a part-time position.

In this case, the claimant's attending physician found the claimant capable of working four hours per day intermittently with physical limitations. He did not anticipate an increase in the number of hours per day the claimant would be able to work.

The claimant returned to work within the physical restrictions established by her treating physician. After working in this position for eleven months, the Office determined that this position fairly and reasonably represented the claimant's wage-earning capacity.

The Board found that the Office improperly determined the claimant's wage-earning capacity based on her actual earnings in a part-time position. Citing FECA PM 2-0814.7.a, the Board found that the claimant's date of injury job was full time but she was currently working only four hours per day.

The Board noted: "Because Office procedures for determining wage-earning capacity based on actual earnings require that the tour of duty be at least equivalent to that of the job held on the date of injury and because the record fails to show that appellant's tours of duty were at least equivalent, the Office abused its discretion in finding that appellant's actual earnings in this part-time reemployment fairly and reasonably represented her wage-earning capacity."

In cases where the claimant has returned to part-time employment and the date of injury job was full-time employment, the Office must consider all of the factors cited in FECA PM 2-0814.7.a and explain why the job fairly and reasonably represents the claimant's wage-earning capacity in spite of the tour of duty not being equivalent to the date of injury employment.

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FECA CIRCULAR NO. 02-05

December 31, 2001


SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE, 2001

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

The subjects addressed include: chiropractic treatment -necessary and reasonable treatment; chiropractic treatment - monitored by a qualified physician; reconsideration - non-merit review; performance of duty - employer intrusion into private life; performance of duty - personal activity; termination of compensation - importance of preparing the statement of accepted facts when developing the medical evidence; wage-earning capacity - availability of position with previous employer; obstruction of medical examination - failure to provide requested medical records; impartial medical examiner - proper method of selection; reconsideration - advancing a relevant legal argument; overpayment - waiver when claimant is without fault; overpayment - without fault/not without fault; termination - proper pre-termination notice.

 

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)

 

CHIROPRATIC TREATMENT - REASONABLE AND NECESSARY TREATMENT

Jean D. Terry, Docket No. 00-39, Issued June 21, 2001

The issue in this case was whether the Office properly denied reimbursement of payment for chiropractic services.

On November 8, 1995, the claimant filed a claim for traumatic injury for a low back injury. By decision dated November 3, 1998, the Office denied the claim for payment of chiropractic treatment as the treatment was not authorized by the Office nor done at the referral of the attending physician. In a letter dated November 5, 1998, from the claimant's attorney the claimant requested an oral hearing and submitted copies of medical reports from Drs. Show and Frank who opined that the claimant's diagnostic tests were consistent with subluxation in connection with her federal employment. By decision dated July 1, 1999 the Office hearing representative found that the record failed to support that the claimant's change of physician and services provided by the chiropractor were reimbursable under the Act.

The Board found that the Office did not exercise its discretion to determine whether Dr. Frank's or Dr. Show's unauthorized chiropractic care was necessary and reasonable. The Board opined that the Office must review the treatment conducted by Dr. Frank and Dr. Show, as well as the medical evidence of record, and make a determination on whether the treatment was necessary and reasonable.

Consequently, the Board set aside the Office's decision and remanded the case for further proceedings to determine the reasonableness and necessity of chiropractic treatment.

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CHIROPRACTIC TREATMENT - MONITORED BY A QUALIFIED PHYSICIAN

Susan P. Pastorino Docket No. 00-562, Issued May 16, 2001

The issue in this case was whether the Office properly denied reimbursement of payment for chiropractic services.

On December 4, 1993, the claimant filed a claim for traumatic injury for strained back muscles and left shoulder strain. By decision dated March 30, 1994, the Office denied the claim for continuing work-related residuals. In a letter dated April 8, 1994, the claimant requested an oral hearing. By decision dated February 2, 1995, the Office hearing representative determined that the record failed to support that the services provided by the chiropractor were reimbursable under the Act.

By letter dated October 6, 1998 the Office denied the claim for chiropractic care based on the fact that it never accepted the claim for a work-related subluxation. By decision dated February 25, 1999 the Office denied a request for reconsideration because the chiropractic care was not obtained as a form of physical therapy under the "direction and supervision" of the attending physician. An additional request for reconsideration was denied on August 25, 1999.

The Board found that the Office correctly terminated the chiropractic treatment. The Board determined that the attending physician was not "monitoring" the chiropractor's treatment sufficiently enough to control the direction of treatment.

The Board opined that the evidence of record failed to demonstrate how medical benefits for physical therapy and chiropractic treatment were related the accepted medical condition.

The Board affirmed the Office decisions dated August 25, 1999 and February 25, 1999. The medical evidence failed to demonstrate the nature of the chiropractic treatment and show how the attending physician was monitoring the claimant's progression under the chiropractor's physical therapy treatment.

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RECONSIDERATION - NON-MERIT REVIEW

James R. Camps Docket No. 2000-1235, Issued April 18, 2001

In this case, the issue under consideration by the Board was whether the Office abused its discretion in refusing to reopen the claimant's case for a merit review.

By decision dated December 12, 1999 the Office denied a request for reconsideration 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 found that the Office properly denied reconsideration. The claimant had merely resubmitted medical evidence that was in file and had been considered prior to the Office's January 14, 1999 decision. The Board cited Title 5 U.S.C. sec. 8128 (a) and 20 CFR sec. 10.606 (b) (2) in making the determination. The Act places the burden for opening a case for reconsideration upon the claimant. The claimant must provide evidence that an error was made by the Office in its interpretation of a point of law, advance a legal argument not previously considered, or submit relevant and pertinent evidence not previously considered by the Office.

Since the claimant merely submitted a medical report, which the Office considered in its previous decision, the Board found that the Office properly denied the claimant's request for reconsideration. Thus, the Board affirmed the December12, 1999 decision.

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PERFORMANCE OF DUTY - EMPLOYER INTRUSION INTO PRIVATE LIFE

Dixie L. Booth, Docket No. 2000-1200, Issued May 7, 2001

The issue before the Board in this claim was whether the claimant sustained an emotional condition in the performance of duty.

The claimant made several unsubstantiated allegations that the Office found did not occur. However, she was able to establish that working in the box section, distributing mail and working the window, many times alone, were compensable factors of employment.

By decision dated June 10, 1998 the Office denied the claim for failure to establish that the claimed medical condition was causally related to a compensable factor of employment.

The Board found that the case was not in posture for a decision. One of the allegations, proven to have occurred but found not to be a compensable factor of employment, was not fully investigated by the Office. Thus, the Office could not make an accurate analysis of whether or not the incident was a compensable factor of employment.

The Board stated, "The Office erred, however, in summarily determining that appellant being escorted to the doctor by the nurse, Ms. Hayes, on her time off from work without her consent or permission was an administrative matter within management's discretion".

Further investigation by the Office was needed to determine the employing agency's reasons for the nurse's action. The Office should have requested a statement from the employing agency outlining the reasons for its "intrusion" into the claimant's personal ("private") life. There is no evidence that the nurse was following up on a work-related issue.

The Office, in this instance, is obligated to assist the claimant by obtaining an explanation from the employing agency as to the exact reasons for its intrusion into her private life. Once the Office receives the explanation it can then provide "full rationale for its determination".

The case was remanded to the Office for a complete investigation into the reason(s) why the employing agency sent a nurse to accompany the claimant to a doctor's appointment while she was on her own private time (off duty) with no apparent connection to work.

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PERFORMANCE OF DUTY - PERSONAL ACTIVITY

Cynthia Greene, Docket No. 2000-1445, Issued May 4, 2001

The issue under consideration by the Board was whether the claimant sustained an injury in the performance of duty.

On December 17, 1999 the claimant filed a traumatic injury claim for an alleged November 5, 1999 incident at work. The claimant stated that she received first-degree burns to her neck and upper back when she plugged her portable television/radio with headphones into an adapter at work. She also claimed to have second-degree burns on her ear and burnt hair.

The Office denied the claim by decision dated February 15, 2000 based on the claimant's failure to provide evidence sufficient to establish that the injury occurred in the performance of duty within the meaning of the Act.

The Board found that the claimant "was not engaged in an activity contributing to the accomplishment of her assigned duties." The Board explains further that there is no evidence "to suggest that the employing establishment by custom or practice encouraged the use of such equipment by employees while performing their postal duties. Further, the use of portable television/radios does not fall into a class of activity closely related to personal ministrations considered to be incidental to employment."

In its May 4, 2001 decision affirming the Office's February15, 2000 decision, the Board made a distinction between allowable activities such as a bathroom break or a coffee break and the use of entertainment equipment (i.e. televisions, radios). The Board has also put forth a standard for the Office to evaluate and gather evidence in order to determine what is and is not considered to be an encouraged custom or practice in a specific employing agency.

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TERMINATION OF COMPENSATION - IMPORTANCE OF PREPARING THE STATEMENT OF ACCEPTED FACTS WHEN DEVELOPING THE MEDICAL EVIDENCE

Geneva Sheppert, Docket No. 2000-1964, Issued May 14, 2001

There were two issues before the Board in this case. However, the issue of interest pertains to the decision to terminate compensation benefits on October 12, 1999 for no continuing work-related residuals/disability.

The Office accepted a work-injury for a lumbosacral strain that occurred on February 21, 1994. The claimant left work on February 23, 1994 and returned to light duty on July 5, 1994. She returned to full time/light duty on October17, 1994.

On April 14, 1997 the claimant filed a claim for a recurrence of disability beginning on April 4, 1997. The attending physician, Dr. Robert W. Morrison, M.D. (Board-certified orthopedic surgeon) supported the claim for recurrence by his medical report dated April 9, 1997. The doctor stated that the claimant had suffered a "new" lumbosacral strain and left sciatica because the light duty assignment was changed and the claimant was moved to a new work area that required heavy lifting.

The Office accepted a recurrence due to a change in the, "nature of her limited-duty assignment". Dr. Morrison filed several further medical reports providing results of diagnostic tests and diagnoses. Dr. Morrison now diagnosed spondylolisthesis at L3-4 and a disc bulge at L4-5. By his medical report dated January 27, 1998 the doctor opined that the claimant could not return to her full time regular duties as a nurse.

Based on the doctor's reports dated January 27, 1998 and February 9, 1998 the employing agency decided it could not accommodate the claimant's work restrictions. She was placed on the periodic rolls effective November 12, 1997.

On June 21, 1999 the Office initiated a second opinion specialist examination for the claimant with Dr. Albert Thrower, M.D. (Board-certified orthopedic surgeon). Dr. Thrower was provided with the case record and statement of accepted facts. Dr. Thrower's initial report, dated June29, 1999 stated that the claimant did not have residuals of the lumbosacral strain and the current condition of lumbar strain was "likely related" to a motor vehicle accident that the claimant was recently involved in.

In a follow-up report dated August 15, 1999 Dr. Thrower, "opined that appellant had 'fully recovered from the lumbosacral strain' and that her injury did not affect her `underlying spondyloisthesis and degenerative disc disease".

As a result of Dr. Thrower's report the Office issued a proposed notice of termination on September 10, 1999. The Office found that the weight of medical evidence rested with his medical reports. The Office found that the claimant's work-related medical condition had ceased and there was no further condition or disability that was causally related to the work injury.

The claimant's attending physician responded by report dated September 22, 1999 wherein he found the lumbosacral strain, along with disc disease, was still active in the spine. Although the claimant continued to suffer from continuing work-related residuals, the attending physician felt she could return to work with the proper restrictions.

On October 12, 1999 the Office wrote a final decision to terminate compensation and medical benefits. The claimant requested a reconsideration on January 4, 2000, which was denied on March 18, 2000.

The Board found that Dr. Thrower's reports were not based on a complete and accurate history. The statement of accepted facts provided to the doctor left out several details concerning the claimant's return to work and recurrence of disability. Dr. Thrower's report stated the claimant returned to regular duty in October of 1997 when it was only a return to light duty.

The Board stated that:

The statement of accepted facts also is ambiguous regarding whether, after her initial employment injury, appellant returned to eight hours of regular or limited-duty employment and specifies that she resumed full-time work in October 1997 rather than October 1994. Therefore, Dr.Thrower's report is based on an incomplete factual history as he believed that appellant returned to her regular employment flowing her February 21, 1994 employment injury rather than limited-duty employment.

Dr. Thrower also failed to discuss the accepted work-related recurrence of disability beginning on April 5, 1997. It is never addressed as to whether the claimant made a recovery from this recurrence. The Board found his opinion to be "seriously diminished" in it's probative value.

The Board makes it clear that the statement of accepted fact is to include complete and accurate accounts of return to work issues and distinguish between light and full duty returns to work. The lack of an accurate explanation of the return to work issues will adversely affect the results of second opinion and IME reports.

As a result, the Office's decision dated October 12, 1999, which was based on Dr. Thrower's opinion, was reversed and the case remanded back to the Office.

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WAGE-EARNING CAPACITY - AVAILABILITY OF POSITION WITH PREVIOUS EMPLOYER

David Rundell, Docket No. 1999-1974, Issued May 22, 2001

The issue was whether the Office properly reduced the claimant's compensation based on its determination that he had actual earnings as a supply clerk for thirty hours a week and whether this position reasonably represents the claimant's wage-earning capacity.

In a previous appeal involving this case the Board originally set aside the Office's March 9 and April 12, 1994 decisions denying modification of an Office decision dated March 4, 1992 for loss of wage-earning capacity.

The March 4, 1992 WEC decision found that the claimant had actual earnings as a supply clerk for eight hours a day. Although the Office denied modification of the decision on March 9 and April 12, 1994 the record contains a second opinion specialist report from Robert Po, M.D., a Board-certified orthopedic surgeon, that shows a change in the claimant's work-related medical condition. This had a direct impact on the claimant's work restrictions. Dr. Po reported that the claimant could only work in the position of a supply clerk four to six hours a day.

The Board found that this constituted a change in the claimant's medical condition and the March 4, 1992 WEC decision was subject to review and modification.

The Office modified the March 4, 1992 decision on August 15, 1996. The August 15, 1996 decision, which was effective February 7, 1994, stated that the position of supply clerk working six hours a day "fairly and reasonably" represented the claimant's wage-earning capacity.

The claimant requested a reconsideration of the August 15, 1996 decision that was issued following the initial remand. The Office denied the request on October 3, 1996. The claimant then appealed to the Board. The Board had to remand the case on November 27, 1997 for "reassemblage". The Office issued another decision on May 4, 1999. This decision, written in response to the Board's remand, again denied modification of the August 15, 1996 decision.

The Office did not account for the fact that its decision of August 15, 1996 was based the claimant's wage earning capacity for actual earnings. The claimant retired on December 17, 1993; therefore, he did not have actual earnings on February 7, 1994 (the effective date of the WEC). The second problem is that the Office did not verify the position for part-time work. There is no evidence that the claimant's employing agency had such work available for the claimant to perform.

The Board stated:

Additionally, there is no indication in the record that the Office sought information from the employing establishment regarding whether a position as a part-time clerk was available, as of the time the medical evidence established that appellant could no longer work eight hours a day and that appellant actually performed such position. As appellant did not have actual wages as a supply clerk at the time of the Office's redetermination of this wage-earning capacity determination, the Office cannot establish his wage-earning capacity using the actual earnings method.

The decision was reversed and remanded back to the Office with instructions to use procedures set forth for a constructed LWEC determination.

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OBSTRUCTION OF MEDICAL EXAMINATION - FAILURE TO PROVIDE REQUESTED MEDICAL RECORDS

Raul Meyers, Docket No. 2000-1839, Issued June 25, 2001

The issue in this case was whether the Office properly suspended the claimant's compensation for obstruction of a medical examination.

The claimant has experienced three separate traumatic incidents at work. An injury was claimed on March 5, 1991, on August 7, 1991, and on July 29, 1993. The immediate case concerns the work-injury of July 29, 1993. On that day the claimant was responsible for opening up the employment establishment for business. While doing this, the claimant set off the silent alarm at the police station. The police approached the facility with guns drawn and a confrontation developed between the claimant and the police over access to the facility. The Office accepted the claim for post-traumatic stress disorder.

The case has been to the Branch of Hearings and Review twice with the latest decision issued on August 26, 1999. The case was remanded with the Office's April 28, 1999 decision set-aside for further development before the Office could terminate the claimant's compensation benefits.

As part of the hearing representative's remand order, the district office instructed the claimant to complete a release of medical information form so the Office could obtain medical records from the treating physicians. The Office was planning to conduct a second opinion specialist examination after the requested medical reports/notes were received from the treating physicians. Letter dated October1, 1999 told the claimant that it was his responsibility for ensuring that the Office received the requested documentation. Since the Office did not receive the requested information, it issued a December 15, 1999 decision that suspended the claimant's compensation based on obstruction of a required medical examination.

The Board found that the sanction decision was issued improperly. The Office cannot invoke the sanction identified in the Act under Title 5 U.S.C. sec. 8123 (d) unless the claimant has been directed to attend a scheduled medical examination. In the immediate case the Office was merely requesting documentation from the claimant's attending physician. No appointment had been scheduled. Therefore, an obstruction of a medical examination could not have occurred. Also, the Office issued the decision without first providing the claimant with a 14-day letter. The Office is required to give the claimant an opportunity to explain his obstruction before a decision suspending compensation under Title 5 U.S.C. Sec. 8123 (d) is issued.

The Board reversed the Office's suspension and ordered that compensation be "reinstated retroactively".

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IMPARTIAL MEDICAL EXAMINER - PROPER METHOD OF SELECTION

Lazarus E. Jackson, Docket No. 2000-1881, Issued June 19, 2001

The issue of interest for this case was whether the claimant was entitled to more than seven-percent permanent partial impairment of the left lower extremity.

On December 10, 1998 the Office denied any additional schedule award. The Office hearing representative, by decision dated September 21, 1999, issued a decision that increased the total schedule award to seven-percent PPI of the left lower extremity.

The Office issued a new decision on October 6, 1999 granting an increase of the 1994 award from five-percent to seven-percent. The claimant's attorney requested a hearing that was denied on January 13, 2000.

The Board found that the case was not in posture for an appeal.

The Board determined that the Office failed to properly select an Impartial Medical Examiner when making its decision to resolve a conflict of medical opinion between the second opinion specialist and the attending physician.

The Board reviewed the MARQUIS Directory for a listing of Dr. Lawrence L. Barr, M.D. Dr. Barr was chosen as the IME. However, the Board could not find Dr. Barr listed in the MARQUIS Directory, thus Dr. Barr could not have been identified by the Office through the PDS rotational system. The reason for this is that the PDS software only included doctors that had been included in the MARQUIS Directory. Since Dr. Barr was not in the MARQIUS Directory, he could not have possibly been in the PDS system used by the Office to chose IME doctors. Thus, he was not part of the rotational system and could not be used by the Office for an IME examination.

The case was remanded for referral to a new IME to resolve the conflict. The decisions of January 13, 2000, October 6, 2000, and September 21, 1999 were set-aside.

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RECONSIDERATION - ADVANCING A RELEVANT LEGAL ARGUMENT

Pamela L. MacKenzie, Docket No. 2000-2251, Issued June 4, 2001

This issue for before the Board was whether the Office properly denied the claimant's request for reconsideration.

By decision dated August 17, 1998 the claimant's compensation was terminated, effective September 12, 1998 based on the fact that she refused a suitable job offer without good reason. There was no rationalized medical evidence to support the claimant's claim that she was restricted to working only on the day shift due to her work-related injury.

The claimant requested a hearing. In a hearing decision dated March 1, 1999, the Office hearing representative found that the job offer was suitable and that there was no rationalized medical opinion from the attending physician to support the claimant's contention that she had to work on the day shift because of work-related medical restrictions.

On September 10, 1999 the claimant filed a request for reconsideration. The claimant's legal argument consisted of her belief that the Office and her employer were in violation of the Rehabilitation Act of 1973. She claimed entitlement to "reasonable accommodation" under this statute.

The Board made it clear that OWCP is not an open venue for claimants to advance legal claims/arguments concerning issues and/or statutes outside of Title 5. U.S.C. 8101 et seq.

The Board reiterated the three criteria, which a claimant must meet, in order to proceed with a request for reconsideration by having the Office reopen the case for merit review. The claimant failed to meet any of the criteria. See, 20 C.F.R. sec. 10.606(b).

The Board stated:

The Office previously addressed her argument concerning the restriction to day work. Whether she is entitled to reasonable accommodation under another statue is irrelevant or immaterial to whether she is entitled to continuing compensation under section 8106 (c) of the Federal Employees' Compensation Act. The Board affirmed the Office's decision dated March 20, 2000.

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OVERPAYMENT - WAIVER WHEN CLAIMANT IS WITHOUT FAULT

Ralph W. Kastla, Docket No. 2000-1538, Issued April 19, 2001

The issue before the Board was whether the Office made a proper finding of an overpayment in the amount of $21,144.90 and whether the Office's refusal of a waiver for the overpayment constituted an abuse of discretion.

The overpayment resulted from an incorrect payrate used to pay the claimant's schedule award for 39% permanent partial impairment for the period of November 25, 1997 to December 5, 1998. The Office "improperly" used a payrate that included cost-of-living increases since 1979. The claimant was entitled to a payrate of $319.84 per week with an increase to $325.00 per week for cost-of-living on March 1, 1999.

The schedule award was paid using $426.45 per week as the payrate because of the incorrect CPI effective date beginning in 1979. The claimant was found without fault in the creation of the overpayment in the amount of $22,272.29. However, the Office determined that the overpayment must be repaid in full.

Based on information dated December 2, 1999 the Office reduced the amount of the overpayment due to the claimant's increased charitable donations. The overpayment was recalculated in the amount of $21,144.90.

The claimant argued that the Office should not collect the overpayment due to the belief it would be detrimental to his financial status under the Office's regulations for recovery of overpayment that "would defeat the purpose of the Act or would be against equity and good conscience".

The Board determined that the evidence of record failed to establish the Office abused its discretion or acted against equity and good conscience in denying a waiver.

The claimant's monthly income exceeded his expenditures by more than $100.00 dollars, and his assets totaled at least $35,003.20. The Board used C.F.R. 20. Sec. 10.437 that provided the defining elements of equity and good conscience rule for evaluating wavier of overpayments.

The claimant claimed that his financial position changed for the worse when he increased his charitable contribution by $3.900.00 and made home improvements in the amount of $18,112.94. The Board stated that, "The regulations provide that in order to establish that an individual's position has changed for the worse, it must be shown that the decision made would not otherwise have been made but for the receipt of benefits, and that this decision resulted in a loss".

The Office determined that the home improvements could not be considered a loss. The claimant had increased the value and/or comfort of his home and the cost of the improvements could be recovered if the home was sold. However, the Office correctly determined that the claimant's increase of charitable contributions, based on the incorrect schedule award payments, did meet the criteria for a loss.

Since the Office made this finding, the claimant's overpayment was recalculated in the amount of $1,128.00. Therefore, the total overpayment debt was decreased from $22,272.29 to $21,144.90.

The Board found that the Office did not abuse its discretion of recovery of the overpayment. Since the claimant was not in receipt of compensation benefits, the Board found that it had no jurisdiction, in this case, to determine the method of collection.

The Board affirmed the Office's February 3, 2000 decision.

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OVERPAYMENT - WITHOUT FAULT/NOT WITHOUT FAULT

Robert D. Kerley, Docket No. 2000-791, Issued May 22, 2001

There were several issues before the Board; however, the issue of interest is the Office's finding that the claimant was not without fault in the creation of an overpayment.

The decision is significant for the Board affirming the Office's September 13, 1999 WEC decision. The Office properly reduced the claimant's compensation benefits for actual earnings as a purchasing agent.

The Office properly found that an overpayment had been created in the case, too. However, the Board found that the Office improperly determined that the claimant was not without fault in creation of the overpayment.

The overpayment occurred because the claimant had a "greater wage-earning capacity than previously calculated". The Board found that the period identified in the overpayment of February 20, 1995 to August 14, 1999 was correct and the amount of $4,849.02 also was correct.

However the case was remanded to the Office in order to evaluate a waiver for recovery of the overpayment.

The Board reviewed C.F.R. 20 sec. 10.433 (a) in its decision. "An individual is with fault in the creation of an overpayment who:

(1)Made an incorrect statement as to a material fact which the individual knew or should have know to be incorrect; or
(2)Failed to furnish information which the individual knew or should have known to be material; or
(3)With respect to the overpaid individual only, accepted a payment which the individual knew or should have been expected to know was incorrect."

The Board found that the Office mis-applied the third standard in its evaluation of finding the claimant not without fault. The Board's reason is that the claimant could not have known nor been expected to have known that the money received during the period cited was incorrect. The Office supplied the original payment information in a wage-earning capacity decision. Thus, the claimant had every reason to believe that the monitory compensation payments were correct. The Office did not discover the error until the Board remanded the original wage-earning capacity decision and the Office issued a new wage-earning capacity decision on September 13, 1999. The Board determined that it is illogical for the Office to expect the claimant to know that he was being overpaid beginning in 1995 when the final decision, which brought to the overpayment to light, was not issued until September 13, 1999.

Since the claimant was not at fault in the creation of the overpayment, the Board remanded the case to the Office so that a determination could be made on the issue for a waiver of the recovery of the overpayment.

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TERMINATION - NOTICE OF PRE-TERMINATION

Winton A. Miller, Docket No. 1999-2559, Issued June 19, 2001

The issue was whether the Office properly terminated the claimant's compensation benefits.

This is the third Board decision on this case. The case had been previously remanded to the Office in order to develop medical evidence and later the Board found that a suitability ruling by the Office on a job offered by the employer was incorrect.

The immediate issues are the Office's April 1, 1999 decision terminating compensation and the May 13, 1999 decision denying modification of that decision.

The Board's decision dated August 25, 1998 reversed the Office's decision of October 11, 1995, and the Office was instructed to reinstate the claimant's benefits retroactive to the date of termination. The Office then issued a decision dated April 1, 1999 determining that the medical evidence in file established that the claimant no longer suffered from a work-related medical condition based on a medical report from 1996, which pre-dated the Board's August 25, 1998 decision.

The Board stated:

The Office's procedures provide that notice is required prior to termination in all cases where benefits are being paid on the periodic rolls. In the present case, appellant should have been reinstated on the periodic rolls and should have received compensation retroactively from the date of termination. He does not fall within one of the exceptions to pre-termination notice as he did not die, did not return to work, was not convicted of defrauding the government and did not forfeit his compensation benefits.

It is also important to note that the Office did not provide any further development of the medical evidence in file but relied upon a medical report issued in 1996.

Nevertheless, the Office did not follow its procedures, which require that a pre-termination notice be issued prior to termination of compensation benefits when a claimant is receiving periodic roll payments.

The Board continued:

Furthermore, as appellant had no indication in any form that the Office was again considering termination of his compensation benefits prior to the April 1, 1999 decision, the Board finds that it violated due process and elementary fairness to terminate appellant's compensation benefits.

The Board reversed the Office's May 13 and April 1, 1999 decisions based on the above stated findings.

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FECA CIRCULAR NO. 02-06


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

The interest rate to be assessed for the prompt payment bills is 5.25 percent for the period of July 1, 2002 through December 31, 2002.

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 3.0 percent for the period of July 1, 2002 through December 31, 2002. Ordinarily, the rate of interest charged on debts to the Government is changed in January. However, this rate is changed in July if there is a difference of 2.0 percent or more, which is the case this year.

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

 

DEBORAH B. SANFORD
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)

PROMPT PAYMENT INTEREST RATES

7/1/02 - 12/31/02

5 1/4%

1/1/02 - 6/30/02

5 1/2%

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%


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DMS INTEREST RATES

7/1/02 - 12/31/02

3%

1/1/02 - 06/30/02

5%

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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FECA CIRCULAR NO. 02-07


SUBJECT: CURRENT INTREST RATES FOR PROMPT PAYMENT BILLS AND DEBT COLLECTION

The interest rate to be assessed for the prompt payment bills is 5.5 percent for the period January 1, 2002 through June 30, 2002.

The rate for assessing interest charges on debts due the Government has changed. The interest rate for assessing interest charges on debts due the Government is 5.0 percent for the period of January 1, 2002 through December 31, 2002.

Attached to this Circular is an updated listing of both the Prompt Pay and DMS interest rates from January 1, 1985 through current date.

 

DEBORAH B. SANFORD
Director, 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)

PROMPT PAYMENT INTEREST RATES

1/1/02 - 6/30/02

5 1/2%

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%


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DMS INTEREST RATES

1/1/02 - 12/31/02

5%

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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FECA CIRCULAR NO. 02-08

February 26, 2002


SUBJECT: Statement of Accepted Facts

Claims staff are reminded that the procedure manual requires specific language concerning additional elements of a Statement of Accepted Facts (SOAF). Such language addresses how to divide a SOAF when both work-related and non-work-related elements are evaluated.

Chapter 2-0809-13(c) specifically states that:

"To aid the physician, the CE should divide any SOAF containing both work-related and non-work-related elements into three parts labeled as follows:

(1) Incidents Which Occurred in Performance of Duty.

(2) Incidents Which Occurred That Are Not Factors of Employment.

(3) Incidents Alleged Which the Office Finds Did Not Occur.

Each incident should be numbered consecutively within the section to which it belongs."

Headings such as 'compensable' and 'non-compensable' should not be used to divide the elements of a SOAF, especially in stress claims.

 

DEBORAH B. SANFORD Director for Federal Employees' Compensation

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

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FECA CIRCULAR NO. 02-09


SUBJECT: Code changes for the Departments of the Air Force, Army, Defense, Health and Human Services, Navy, State, Treasury, and Veterans Affairs, and Other Establishments, 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 the Air Force, the Air Training Command is now called the Air Education and Training Command. For the Department of the Army, the Army Health Services Command is now called the Army Medical Command, while the Army Ballistics Missile Defense Systems Command is now called the Army Space and Missile Defense Command. For the Department of Defense, two agencies have been renamed, and separate codes are established to reflect four different Department of Defense organizations. For the Department of Health and Human Services, the Health Care Financing Administration is now called the Centers for Medicare and Medicaid Services. For the Department of the Navy, the Naval Oceanography Command is now called the Naval Meteorology and Oceanographic Command. For the Department of State, the Bureau of European and Canadian Affairs is now called the Bureau of European Affairs. For the Department of the Treasury, a new chargeback code has been added for claims filed by employees of the Financial Crimes Enforcement Network. For the Department of Veterans Affairs, four chargeback codes have been added to reflect the creation of four VA National Cemeteries. Finally, in the Other Establishments section, a new chargeback code has been added to reflect injury claims filed by employees of the Office of Special Counsel.

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. 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.

_________________________________________________________________

Trans-
action
type

Code

Dept.

Agency

Add
" "
" "
" "

3080
3081
3082
3083

Defense
" "
" "
" "

Ballistic Missile Defense Organization
Court of Appeals for the Armed Forces
Defense Prisoner of War/Missing Personnel Office
Defense Office of Economic Adjustment

Add

2145

Treasury

Financial Crimes Enforcement Network

Add
" "
" "
" "

4397
4445
4455
4472

VA
" "
" "
" "

Abraham Lincoln National Cemetery, Elwood, IL
Saratoga National Cemetery
Ohio Western Reserve National Cemetery
Dallas Fort Worth National Cemetery

Add

1431

Other Est

Office of Special Counsel

Change

3704

Air Force

from: Air Training Command
to: Air Education and Training Command

Change

3310

Army

from: Army Health Services Command
to: Army Medical Command

" "

3324

" "

from: Army Ballistics Missile Defense Command
to: Space and Missile Defense Command

Change

3013

Defense

from: CHAMPUS
to: TRICARE Management Activity

" "

3060

" "

from: Defense Civilian Personnel Center
to: Defense Human Resource Activity

Change

1231

HHS

from: Health Care Financing Administration
to: Centers for Medicare & Medicaid Services

Change

655x

Navy

from: Naval Oceanography Command
to: Naval Meteorology & Oceanography Command

Change

1305

State

from: Bureau of European & Canadian Affairs
to: Bureau of European Affairs

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FECA CIRCULAR NO. 02-10


SUBJECT: Code changes for the Departments of Labor, Transportation, and Veterans Affairs, Case Management Users' Manual, Appendix 4-7

The Case Management Users' Manual is being updated and revised to reflect the addition of several new codes. For the Department of Labor, new code 1110 has been added to reflect the creation of the Division of Energy Employees Compensation Program. For the Department of Transportation, new code 2540 has been added to reflect the creation of the Transportation Security Administration. For the Department of Veterans Affairs, new code 4459 has been added to reflect the creation of Fort Sill National Cemetery.

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. 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.

_________________________________________________________________

Trans-
action
type

Code

Dept.

Agency

Add

1110

Labor

OWCP - Division of Energy Employees Compensation

Add

2540

Transprtn

Transportation Security Administration

Add

4459

VA

Fort Sill National Cemetery

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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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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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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.

_________________________________________________________________

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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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.

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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.

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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.

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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.

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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.

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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.

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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.

Back to FECA Circular No. 01-04Back to Top of FECA Circular No. 01-04


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).

Back to FECA Circular No. 01-04Back to Top of FECA Circular No. 01-04


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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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.

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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.

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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.

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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.

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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.

Back to FECA Circular No. 01-05Back to Top of FECA Circular No. 01-05


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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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

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

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%


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DMS INTEREST RATES

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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FECA CIRCULAR NO. 00-01

October 5, 1999


SUBJECT: FolioVIEWS Job Aid

Recently we have received several questions about the use of FolioVIEWS. Since the Job Aid currently in use has not been updated in some time, we have decided to revise and reissue it.

 

NANCY L. RICKER
Acting Director for
Federal Employees' Compensation

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

 

Folio VIEWS 3.11 Quick Start Job Aid

Folio VIEWS 3.11 operates under Windows 95 and uses many Windows conventions for file access, editing, viewing, formatting, etc. And, like other Windows applications, Folio VIEWS gives you multiple ways of doing the same thing. For example, to display the Query window, you may 1) Click on the Query button on the Toolbelt, or 2) Press the F2 key, or 3) you may press Alt+S, followed by Q, or 4) use the Menu Bar by clicking on Search, then on Query. It is advisable, when first using Folio VIEWS, to walk through each of the functions below.

To OPEN an infobase ~ Double-click on the desired infobase name in the Infobase Directory listing. You may open more than one infobase, and search on one or all open infobases. (See To SEARCH, below.) You may also click on the Open button on the Toolbelt, scroll through the filenames, and double-click on the infobase you want to open.

To CLOSE an infobase ~ Click on the Close button on the Toolbelt.

To EXIT Folio VIEWS ~ Click on the x in the upper right corner of the application window, or press Alt+F4.

To use HELP ~ Position the cursor on Help option on the Menu Bar at the top of the screen and click once. Click on Contents to get fast access to Tutorials, the Menu Bar, Quick Keys, Using the Help system, and a Glossary.

To SEARCH ~ Click on the Query button on the Toolbelt (or you may press F2; or press Alt+S followed by Q; or use the Search menu on the Menu Bar). When the Query window is displayed, enter the query text and click on OK to search the infobase. If you have more than one infobase open and wish to search against all of them, click on Apply to All.

LINK TO IMAGE ~ to see the image, double-click on the link. This will display the image in a viewer window. To return to the infobase text, click once on the x in the upper right corner of the viewer window (the lower set of window-sizing boxes).

To BLOCK & COPY TEXT to a Word document ~

Open a Word document and toggle back to Folio VIEWS.
Position the cursor at the beginning of the infobase text you wish to copy.
Hold down the left mouse button and move the mouse (or use Shift +arrow keys) to highlight all text to be copied.
Click on the Copy button on the Folio VIEWS Toolbelt.
Toggle back to the Word document. Place the cursor where you want to paste the text.
Click on Edit on the Menu Bar at the top of the Word document window.
Click on Paste.

To BLOCK & PRINT text ~

Position the cursor at the beginning of the text you wish to print.
Hold down the left mouse button and move the mouse (or use Shift +arrow keys) to highlight all text to be printed.
Click on File on the Menu Bar at the top of the window.
Click on Print.
Click on OK.

To PRINT image objects (Link to Image) ~

Double-click on an object labeled Link to Image to display it.
Click on File on the Menu Bar.
Click on Print. The Print Object window will appear.
In the Options box you may adjust the number of copies.
Click on OK.

If you get a message that says the object is too large to fit, click on Yes, and the size of the image will be decreased so that it will fit on a page. You may need to go to Print Setup to select legal sized paper in order to get a legible printout.

 

Standard Toolbelt Buttons

OPEN ~ Displays an Open dialog box. Double-click on an infobase name to open it. You may also double-click on an infobase name in the Infobase Directory to open an infobase.

CLOSE ~ Closes the infobase.

COPY ~ Copies highlighted text or selected in-line images to the clipboard, ready to be pasted into MS Word or another Windows application.

QUERY ~ Opens the Query dialog to search the infobase. Click on the Query button on the Toolbelt. Enter your query in the Query window and click on OK. (See To SEARCH, on p. 1.)

CLEAR QUERY ~ Clears the current query (highlighted words).

NEXT ~ While viewing results of a query, click on Next to advance the cursor to the next occurrence of the query text.

PREVIOUS ~ While viewing results of a query, click on Previous to return the cursor to the last prior occurrence of the query text.

BACKTRACK ~ Takes you back, in reverse order, through the links you have followed and the searches you have performed.

TRAIL ~ Click once on the Trail button to get a map of those links you have followed within the infobase. Double-click on any line in the trail to return to that location.

CONTENTS ~ Displays the infobase internal Table of Contents from the current position in the text. The TOC is a navigational tool designed to help you easily browse through the infobase.

GO TO ~ Permits you to jump from the current record (paragraph) in an infobase to another record in the file (by record number).

INFO ~ Shows you the last time the infobase was modified and a history of modifications.

 

Selected Quick Key Keystrokes

File Options

Ctrl+O

Open

Alt+F4

Exit Folio VIEWS

Ctrl+F4

Close current infobase

 

 

Navigating

Ctrl+Home

Top of Infobase

Ctrl+End

End of Infobase

Ctrl+Enter

Activate Link

Ctrl+Tab

Next Window (i.e., move between open infobases)

Ctrl+Shift+Tab

Previous Window

Ctrl+G

Go To

F1

Help

F2

Search

F3

Find Next

F4

Find Previous

F5

Backtrack

Alt+S+Q

Search

Ctrl+F6

Next Window (i.e., move between open infobases)

Ctrl+Shift+F6

Previous Window

Ctrl+T

Table of Contents Window/Document Window toggle

 

 

Table of Contents Window

+

Expand Branch One Level

-

Contract Branch One Level

*

Expand Entire Branch

1-9

Expand All Branches to a specific level

Alt+S+C

Contract Branch One Level

Alt+S+R

Clear Query

Ctrl+T

Return to the Document Window

 

 

Other

Alt+S+Q

Search

Alt+S+R

Clear Query

Ctrl+C

Copy

Ctrl+Insert

Copy

F1

Help

F6

Tag Record/Clear Tag

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FECA CIRCULAR NO. 00-02

December 20, 1999


SUBJECT: Representative Fee Petitions

The FECA Regulations at 20 CFR 10.703(a)(1) discuss the requirement that representatives submit their fee applications "to the district office and/or the Branch of Hearings and Review, according to where the work for which the fee is charged was performed." This provision has caused some confusion, as it is sometimes the case that services have been provided both before the custodial district office and the Branch of Hearings and Review during the life of the claim. Often representatives will present one application for fee approval containing services performed before both the district office and the Branch. It is not uncommon that the application will be presented to either or both of these offices.

In light of this, the location of the case file at the time the fee petition is received will determine who should consider the request and issue the decision. There is no need to split fee charges based upon where services were provided. There is also no need to request the case file from the custodial office to consider a portion of services performed before another office. If, however, questions arise regarding the propriety of any contested charge for services performed before another office, that office should be consulted.

Therefore, it is necessary that any fee petition presented to an office for a case over which that office does not have jurisdiction be routed promptly to the custodial office so that it may be considered.

 

DENNIS M. MANKIN
Acting 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 CIRCULAR NO. 00-03

November 5, 1999


SUBJECT: DUAL BENEFITS – FERS COLA

Effective December 1, 1999, Social Security Benefits will increase by 2.4%. 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 ACPS Program. The adjustment will be made effective with the periodic roll cycle beginning December 5, 1999. No adjustment will be made for the period December 1, 1999 through December 4, 1999.

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, 1999.

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, 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%

 

NANCY L. RICKER
Acting 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 CIRCULAR NO. 00-04

November 23, 1999


SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE, 1999

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

Several decisions involving termination under 5 U.S.C. 8106(c) for failure to accept suitable employment are included. There have been a large number of reversals in this area for a variety of reasons. Other subjects include performance of duty, pay rate for a court reporter, grandchildren as dependents for purposes of augmented compensation, consequential injury, schedule awards, loss of wage-earning capacity, forfeiture for failure to report earnings, weight of an impartial examination when there is no conflict, and notification of impartial case reviews in death claims.

 

NANCY L. RICKER
Acting 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)

 

CONSEQUENTIAL INJURY

Billy T. McNatt, Docket No. 97-804, Issued April 14, 1999

This decision provides an interesting discussion of the basis for determining when an injury can be considered consequential.

In this case, the claimant sustained a traumatic injury on November 6, 1990 that was accepted as resulting in an acute back strain. The Office subsequently accepted a herniated nucleus pulposus (HNP) at C5-6, with a C5-6 and C6-7 diskectomy/fusion, and pain in the right shoulder.

The Office additionally authorized a June 8, 1994 surgery to repair a torn rotator cuff of the right shoulder.

A subsequent recurrence was claimed commencing July 3, 1995. This period of disability occurred when the claimant was attempting to lift an empty propane tank out of the back seat of his truck while away from work. The Office denied this recurrence claim noting that this constituted a new, non-work-related injury.

The Board stated, "It is an accepted principle of workers' compensation law, and the Board has so recognized, that when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury is deemed to arise out of the employment, unless it is the result of an independent intervening cause which is attributable to the employee's own intentional conduct."

The Board then cites Larson:

When the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of 'direct and natural results' and of claimant's own conduct as an independent intervening cause.

The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.

The Board goes on to opine, "Thus it is accepted that once the work-connected character of any condition is established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. If a member weakened by an employment injury contributes to a later fall or other injury, the subsequent injury will be compensable as a consequential injury. If further complication flows from the compensable injury, i.e. so long as it is clear that the real operative factor is the progression of the compensable injury, with an exertion that in itself would not be unreasonable under the circumstances, the condition is compensable."

The Board remanded the case, directing the Office to discuss whether the claimant's activity in reaching behind the seat of his car to lift a propane can was reasonable in light of his preexisting condition. The Office was further directed to provide reasons for the finding of an independent intervening cause for the July 3, 1995 disability.

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DEPENDENT GRANDCHILDREN - AUGMENTED COMPENSATION

Barbara J. Hill, Docket No. 97-871, Issued April 20, 1999
Lill Rollins, Docket No. 97-2780, Issued June 16, 1999

The decisions in these cases contrast with the decision in Clyde Stevenson (Docket No. 95-3016, issued February 4, 1998), which was summarized in FECA Circular 99-9. The Stevenson decision dealt with dependent grandchildren in a death claim. In the Hill and Rollins decisions, the appellants claimed augmented compensation on the basis that they had legal custody of their minor grandchildren.

Section 8110 of the FECA provides that a "dependent" for purposes of augmented compensation includes an unmarried child "while living with the employee or receiving regular contributions from the employee towards his support." In section 8101(9), a "child" is defined as one "who is under 18 years of age or over that age and incapable of self-support, and includes stepchildren, adopted children, and posthumous children, but does not include married children."

The Board found that a "grandchild" was not a "child" as defined in the Act, and therefore did not qualify a claimant for augmented compensation. These decisions serve to illustrate the differences in dependent status between disability and death cases.

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FORFEITURE FOR FAILURE TO REPORT EARNINGS

Daniel A. Mashe, Docket No. 97-2115, Issued June 11, 1999

A forfeiture of compensation was declared for the period September 10, 1990 through June 27, 1992 on the grounds that the claimant concealed his employment at a liquor store during that time and did not report the employment as required under 5 U.S.C. 8106(b). The Office found that the claimant had failed to report his employment on Form CA-1032.

The claimant contended that he had performed no work, had no duties, and was not employed. A postal inspection report for the period in question reported that the claimant was observed many times working behind the counter, waiting on customers, working the register, and at times, minding the store by himself. The store had no records for the claimant, and the owner stated that he was not an employee, but that he did serve a security function, and would sometimes be in the store alone, waiting on customers. The claimant himself stated that he was at the store to pass time, and that he had known the owner for many years. He stated that he was at the store six days per week, four hours per day. He admitted that he did help out when needed. However, he also stated that he was not employed in the store, and received no remuneration, and that if he stopped going to the store, the owner would not hire anyone to replace him.

The Board found that the Office improperly declared a forfeiture for failure to report employment. They found that the claimant received no wages, tips, or other advantage in exchange for his activities at the store. They found that the evidence clearly established that the claimant was engaged in work activities for which he was not paid, and that his failure to report what it would have cost the store owner to hire someone to perform the work he performed might make him liable for criminal prosecution, and his compensation could be reduced to reflect his wage-earning capacity. However, without evidence of earnings or other remuneration, invoking the penalty provisions of section 8106(b)(2) was improper. The Board also noted that this situation was different from invoking the forfeiture penalty in cases where the claimant has been self-employed in a family-owned business. In this claim, the employee had no financial interest in the store.

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IMPARTIAL EXAMINATION - NOTIFICATION REQUIRED IN DEATH CLAIMS

Rosita Mahana, claiming as widow of Wayne Mahana, Docket No. 97-92, Issued April 13, 1999

A claim for death benefits was filed, contending that the death of the employee by suicide was related to employment factors. The widow submitted medical evidence that supported the claim. The Office referred to case record to a specialist for a second opinion review. The second opinion reviewer did not support a causal relationship between the employee's work and his death, and the Office determined that there was a conflict of medical opinion, necessitating review by an impartial specialist. The case record was referred to an impartial psychiatrist, but a copy of the referral letter was not sent to the widow or to her representative. Following the review, the Office advised the widow that the claim had been reviewed by an impartial specialist, who stated that the employee's death was not due to his employment.

The widow's attorney objected to the referral of the case record for impartial review without notification to either the widow or himself. The Office responded that since only a review of the record was required, they did not notify the widow or her representative. The claim for survivor's benefits was rejected on the basis that the employee's death was not related to employment factors.

The Board found that the case was not in posture for a decision. They noted that the Office properly determined that there was a conflict of medical opinion. They cited the Federal (FECA) Procedure Manual, Chapter 3.500.4d, which states, "Notification that the examination is being arranged under the provisions of 5 U.S.C. 8123 will give the claimant an opportunity to raise any objections to the selected physician prior to the examination." The Board found that this provision applies equally to death and disability claims, and that by failing to notify the widow in the instant claim, she was deprived of the opportunity to present reasons for participating in the selection of the impartial examiner. The Board remanded the claim for a new impartial review, with proper notification to the interested parties.

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IMPARTIAL OPINIONS - NO SPECIAL WEIGHT IF NO CONFLICT OF MEDICAL OPINION

Rochelle Wenkowsky, Docket No. 97-2253, Issued May 19, 1999

In this case, the claimant returned to work in a light-duty capacity for four hours per day. By decision dated May 18, 1995, the Office determined that the claimant's earnings in this light-duty position fairly and reasonably represented her wage earning capacity.

The Office subsequently terminated all compensation on the grounds that the weight of the evidence established that the claimant did not have a continuing employment-related disability.

The Board noted that, although the Office based their decision to terminate compensation on the medical opinion of an impartial medical specialist, Dr. Mulle, no unresolved conflict existed on the issue of whether the claimant's employment-related condition had resolved.

A second opinion referral physician, Dr. Infranca, had stated that the claimant was capable of initially returning to work for four hours per day with restrictions. The claimant's treating physician, Dr. Goldberg, also released the claimant to return to work initially four hours per day with restrictions.

The Board further noted "While there may have been minor differences between Drs. Goldberg and Infranca as to the specific restrictions in a light-duty job, both of the physicians appear to agree that appellant continued to have an employment-related disability. Dr. Infranca's suggestion that appellant could return to full-time light duty after one week does not provide a reasoned opinion that appellant's employment-related disability or condition had ceased, and therefore his report cannot create a conflict on these issues under section 8123(a). Dr. Mulle is therefore not considered an impartial medical specialist whose opinion may be entitled to special weight, but rather a second opinion physician."

The Office's decision, with respect to the issue of continuing employment-related disability, was reversed.

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LOSS OF WAGE-EARNING CAPACITY BASED UPON CONCURRENT EMPLOYMENT

Dim Njaka, Docket No. 96-1950, Issued June 18, 1999

The claimant, a mailhandler for the Postal Service, injured his upper back in September 1988, in the performance of duty. His claim was accepted for left shoulder and neck strain, and several herniated discs. He worked light duty until stopping work on December 19, 1988, and returned to work on January 21, 1989. Prior to the date of his injury, and until September 5, 1990, the claimant was also employed as a programmer analyst in a bank, with earnings of $20,000 per year. Beginning in January 1989, he was also self-employed as a computer consultant, with no reported earnings. Between an unknown date in 1990 and November of 1992, he worked for General Mills, with an annual salary of $37,000. He apparently continued his concurrent employment after November 1992, but the nature of that employment is not detailed in the decision.

The claimant stopped working for the Postal Service altogether on February 2, 1990, due to partial disability. A temporary job offer was made, and the Office terminated wage loss benefits after February 16, 1990, based on failure to demonstrate total disability. A hearings representative found that the job offered was only available for a short time, the claimant was still partially disabled, and he was entitled to compensation for a loss of wage-earning capacity based on actual earnings as of February 5, 1990, pending a formal LWEC decision. After confirming partial disability through a second opinion evaluation, the National Office modified the hearing representative's decision, and directed the District Office to pay compensation beginning February 5, 1990, using a constructed LWEC, considering the earnings in private industry.

After referral to the rehabilitation specialist, the District Office issued a decision finding no loss of wage-earning capacity as of February 5, 1990, based upon potential earnings for the selected position of programmer/analyst being higher than the contemporaneous salary for the Postal job held on date of injury. The claimant requested a hearing, and cited the Board's decision in Irwin E. Goldman (23 ECAB 6[1971]) as support for his argument that his concurrent employment could not be used as the basis for an LWEC. The hearing representative affirmed the Office's determination that the claimant had no loss of wage-earning capacity based on the constructed position of programmer/analyst, but that the Office should have reinstated compensation for total disability pending its determination, and provided due process through a prereduction notice. The hearing representative stated that the hearing decision would represent the prereduction notice. The District Office subsequently issued the final decision to reduce compensation to zero as of March 14, 1995. The claimant again requested a hearing, and the hearing representative affirmed the decision.

The claimant then requested an appeal, and the Board also affirmed the decision. They noted that the Goldman decision established the principle that earnings from dissimilar concurrent employment could not be included in the pay rate for compensation purposes, and consequently for establishing a wage-earning capacity. In this instance, the Office did not rely upon the actual earnings, but pursuant to section 8115 of the Act, chose a general position that represented his wage-earning capacity. Although the selected position was basically similar to the work he performed in private industry, it was selected in accordance with the factors outlined in section 8115, namely, the degree of impairment, usual employment, age, qualifications, and availability.

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LOSS OF WAGE-EARNING CAPACITY BASED ON POTENTIAL COMMISSIONS

Barbara Pargament, Docket No. 97-1144, Issued June 7, 1999

The Office accepted the claimant's case, and she was placed in a six-month on-the-job training program for work as a real estate agent, property manager, and leasing agent. At the end of the training program, she started working full-time on a commissions-only basis. The rehabilitation counselor stated that expected earnings from commission for a real estate agent were $25,000 to $32,000 per year.

Using the $25,000 per year figure, the Office determined that the position of real estate salesperson fairly and reasonably represented her wage-earning capacity, and reduced compensation accordingly. In addition, they computed an overpayment based on that same amount for the period between when she started working and when the reduction in benefits was made. The claimant did not respond to the initial overpayment notification, and so the finding that claimant was with fault was made final, and the overpayment was withheld from continuing compensation at the rate of $300 each 28 days.

The Board found that basing the claimant's wage-earning capacity on the $25,000 figure was improper, as was the overpayment. They found that the Office did not follow the procedures outlined in FECA Program Memorandum No. 128 and the case of Donald R. Shively (22 ECAB 34 [1970]) for determining wage-earning capacity based solely on commission. In Shively, the Board stated:

Where a wage-earning capacity rating is to be made on the basis of commissions only, the claims examiner should obtain information as to the average number of weeks, or months it takes for a starting person to reach the level of commissions used as the basis of wage-earning capacity rating. Compensation should then be paid on the basis of the claimant's actual wage loss for that period of time. Thereafter, compensation should be paid on the wage-earning capacity rating which is predicated on the commission.

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LOSS OF WAGE-EARNING CAPACITY - RETROACTIVE

Bridgett T. Davis, Docket No. 96-1951, Issued June 23, 1999

The claimant's injury occurred in 1983, and a recurrence beginning in May 1985 was accepted as related to the original injury. Although medical expenses were paid, no claim for compensation due to the recurrence was made until 1990. The claimant had several jobs as teacher and instructor on an intermittent basis beginning in August 1985. Her yearly earnings ranged from a low of $598.66 in 1989 to a high of $11,212.20 in 1991.

The Office issued a decision finding no loss of wages based on the selected position of secondary school teacher, for which the claimant was certified in the state of Florida. The salary for a secondary school teacher in the claimant's area of residence exceeded the concurrent wages for the job she held on date of injury.

The Board found that the case was not in posture for a decision, and remanded the case for further development and a de novo decision. When making a retroactive loss of wage-earning capacity determination, the Office must first determine whether there are actual earnings, and if so, must follow the procedures for determining loss of wage-earning capacity based on actual earnings, found in the Federal (FECA) Procedure Manual, Chapter 2-0814. In this case, the claimant had actual earnings, but these earnings were not discussed, nor was there a finding made that the earnings did not represent the claimant's wage-earning capacity, prior to proceeding with a rating based on a selected position.

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MERIT REVIEW - ABUSE OF DISCRETION

Ronald H. Lunsford, Docket No. 97-1178, Issued April 26, 1999

In this case, a claim was filed for work-related aggravation of a preexisting emotional condition. After development, the office denied the claim on the basis that causal relationship was not established. Reconsideration was requested on the basis that the Office failed to clearly delineate whether fact of injury was accepted, and which elements of the employment were accepted as compensable. The request for modification was denied on the basis that the arguments submitted were not sufficient to warrant modification of the prior decision. The Office did state that it was accepted that the claimant experienced stress due to the volume of work.

The claimant again requested reconsideration, and described his fear and anxiety regarding his ability to carry out his duties, overwork, understaffing, overtime, and deadlines. The reconsideration was denied on the basis that the submitted evidence was cumulative in nature and insufficient to warrant a merit review. The claimant appealed the decision.

The Director filed a motion recommending that the case be remanded to the District Office for further development, because the claimant had established fact of injury and submitted medical evidence in support of causal relationship sufficient to require the Office to undertake further development. The Board remanded the case for further development, to be followed by a de novo decision.

The Office referred the case out for a second opinion evaluation. The statement of accepted facts listed understaffing (with no staff counselor) and a heavy caseload as compensable work factors. The second opinion physician examined the claimant and the records, and submitted a report to the Office in which he stated that the claimant's underlying condition had been aggravated "a little bit by his work-related condition," and that the aggravation had ceased.

The Office wrote to the second opinion physician regarding the duration of the temporary aggravation. They pointed out that there were a number of work-related incidents which were not considered to be compensable factors of employment, and asked the physician to clarify "whether the condition was aggravated solely by the two compensable factors of employment that were set forth in the statement of accepted facts." They also asked that if "the condition was aggravated solely by the two compensable factors of employment," he should state when the aggravation ceased.

The physician responded that the condition was not due to the two compensable employment factors, but that the death of a coworker seemed to be a much greater stress than overwork or understaffing. The Office affirmed their prior decision, denying the claim for lack of causal relationship.

The claimant requested reconsideration, asserting that the statement of accepted facts was incomplete, misleading, and contained improper and irrelevant material, and that the Office used an incorrect legal standard when they asked whether the claimed condition was based solely on the two accepted work factors. The claimant also stated that there was an unresolved conflict of medical opinion, and submitted another medical report from his attending physician. The Office denied reconsideration on the basis that the evidence submitted was immaterial, and that the new medical evidence was "vague" and "speculative" and therefore insufficient to create a conflict of opinion.

An appeal was filed, and the case was remanded to the Office for reconstruction and issuance of an appropriate decision. The Office subsequently again denied the request for merit review on the basis that the evidence submitted was repetitious and insufficient to warrant a merit review.

The Board found that the Office abused its discretion in denying the request for a merit review, and remanded the case for merit review. The Board found that the claimant had submitted new legal arguments with respect to the second opinion physician's report, and had also submitted new, relevant medical evidence. The Board noted also that the Office used an incorrect legal standard when they requested the supplemental report from the second opinion physician, because a claimant is not required to prove that work factors are the sole cause of a claimed condition. The Office had incorrectly asked the second opinion physician to state whether the condition was aggravated solely by the two accepted work factors.

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PAY RATE FOR COMPENSATION PURPOSES - INCLUSION OF TRANSCRIPTION FEES

Daniel Shaw, Docket No. 97-1680, Issued April 14, 1999

The claimant in this decision was a court reporter whose claim was accepted, and who was entitled to compensation for loss of wages. The reported annual salary was $46,518 per year, but as much as an additional $60,000 per year was paid to the claimant for court transcriptions. He was required to provide transcripts in certain categories of cases, for which he was paid at rates set by the administrative body for the employing agency. The employee claimed that these additional amounts for transcripts should be included in his rate of pay for compensation purposes. The Office rejected the claim for inclusion of the transcription fees in his pay rate for compensation purposes on the basis that Office procedures did not provide for inclusion of such services.

The Board reversed the Office's decision. The claimant received payment for transcripts from both the Federal government and private individuals, and was permitted to receive such payment as part of his duties, in addition to his salary. Payments for the transcripts were for the product of duties he performed while in his salaried position.

The Board pointed out that even if one tried to argue that the claimant received payment for the transcripts though self-employment, not his regular duties, the "concurrent" earnings should be included in the rate of pay for compensation purposes because producing transcripts for private parties was similar to his regular duties of producing transcripts for the court (see Irwin E. Goldman, 23 ECAB 6 [1971]). The earnings from producing transcripts during the year prior to when his disability began should be included in his pay for compensation purposes.

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PERFORMANCE OF DUTY - DEVIATION FROM ANTICIPATED ROUTE

Samuel Clay, Docket No. 97-2181, Issued May 11, 1999

In this case, the claimant was employed in a limited-duty assignment delivering mail to certain outlying employing establishment branches. He was involved in a motor vehicle accident on January 16, 1997, as he was returning to the main post office after delivering mail to a branch office.

The claimant initially explained that, due to traffic, he was not able to move into the appropriate lane to take the closest exit to the employing establishment so he continued on to the next exit. The claimant later alleged that he was hungry and had intentionally taken the second exit. He was in the wrong lane after he exited due to traffic.

On appeal, the claimant's attorney argued that he was never given a specific route to travel and had the discretion to use whatever route was most familiar to him and the most economical. The claimant's representative argued that the route taken by the claimant was the most familiar to him and he was, consequently, in the performance of his duties at the time of the motor vehicle accident.

The Board affirmed the Office's decision, stating, "The record in this case is clear that appellant had deviated from his anticipated route between Montgomery and Alexandria as he did not take the most direct route and did not take the appropriate exit for the route he chose. His reasons for being where he was, were inconsistent and unsupported by the facts of record. Because appellant deviated from the course of his employment for personal reasons and failed to regain his anticipated work route before sustaining his injury on January 16, 1997, his injury did not arise in the course of employment."

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PERFORMANCE OF DUTY - "SPECIAL ERRAND" EXCEPTION

Asia Lynn Doster, Docket No. 96-688, Issued April 20, 1999

In this case, the claimant was involved in an motor vehicle accident which occurred on June 7, 1995, while she was driving to another "government building" to investigate a personal threat made against her.

Prior to adjudicating the claim, the district office conducted conferences with both the claimant and an employing agency supervisor. The supervisor indicated the claimant had received an anonymous threatening letter that was considered sufficiently serious to have the FBI and the employing agency investigate. The claimant was in leave status at the time of the motor vehicle accident and, to the best of the supervisor's knowledge, was not conducting any official business. The claim was denied on the grounds that the evidence of record failed to establish that the claimant had sustained an injury while in the performance of duty.

On appeal, the claimant's attorney argued that the claimant did not go directly to work on the date of the motor vehicle accident. Instead, she had contacted a colleague who was working as a law enforcement employee in a government building a short distance from her home. She met the employee, drove around the parking lot, and discussed the letter. She did not exit the vehicle due to her fear. After this conversation, the claimant proceeded to drive toward her home. However, she was hit broadside by a driver prior to her reaching her home. She assumed this incident was related to the threat made against her. The colleague from whom she sought guidance was the husband of the person scheduled to assume the position of manager of the facility where the claimant worked. The attorney contended that the claimant's actions could reasonably be interpreted as in furtherance of her employer's business.

The Board affirmed the Office's decision, finding, "The evidence of record does not establish that appellant was engaged on any special errand when she left her home. There is no evidence which would establish that appellant's journey on the date of injury was an integral part of any errand or special task either expressly or impliedly agreed to by her employer."

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PERFORMANCE OF DUTY - WILLFUL MISCONDUCT

MaryAnn Battista, Docket No. 96-2501, Issued April 16, 1999

In this case, the claimant alleged that she injured herself on January 30, 1996, when she fell down a step and landed on both knees in the secured area of the mini-commissary. The employing agency controverted the claim, stating the claimant departed from her designated duty site without supervisory approval, and had entered an unauthorized office while conducting personal business at the time of the injury.

The evidence of record indicated that the claimant had been verbally advised on January 18, 1996, that she was not authorized to go in the mini-commissary. The record further indicated that the claimant was dropping off her daughter for work and looking for cigarettes in the mini-commissary. The claim was denied for the reason that the evidence of record failed to establish that the injury was sustained in the performance of duty.

The claimant requested reconsideration and submitted statements from herself and three witnesses which supported that on the date of injury, when she mentioned that she was going to the mini-commissary for a few minutes, she was asked to deliver several work-related items. She also stated that she was going to check on the availability of an item in response to a customer's telephone inquiry. After additional inquiry into the facts, the Office denied modification of the prior decision.

The Board found that the claimant was injured while in the performance of duty. The Board noted that the claimant had presented credible evidence in the form of witness statements that showed, at the time of the injury, she was engaged in activities which could be characterized as reasonably incidental to the conditions of her employment.

In addition, the Board held that the fact that the claimant entered an area where she was not authorized to go does not remove her from the performance of duty. "The mere act of disobedience of a rule or order does not necessarily place an employee outside the sphere of his employment so that he loses the benefits of the Act...the defense of willful misconduct has been used successfully in a narrow field of intentional violation of safety regulations. There is no evidence of record that the appellant's entry into the 'secured area' of the mini-commissary violated a specific safety rule of the employing establishment."

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SCHEDULE AWARD - INCLUDING PREEXISTING IMPAIRMENT

Phillip R. Brueck, Docket No. 97-2487, Issued June 14, 1999

This claimant has an accepted partial meniscus tear. A prior schedule award decision for nine percent impairment of the left leg was remanded by the Board for further development. As part of that prior decision, the Board stated that Office should take into account the preexisting impairment of the left ankle when redetermining the award, even though the claim was not accepted for an ankle injury.

Upon receipt of the case from the Board, the office obtained a report from a Board-certified orthopedic surgeon. The report was referred to the Office medical advisor for review. The medical advisor found that the claimant had nine percent impairment of the leg, and that the orthopedic surgeon's calculation of 34 percent impairment incorrectly included 21 impairment for the non-work-related ankle condition, and a collateral ligament injury, which did not exist. The office denied the claim for an award above the nine percent that had already been awarded.

The Board set aside the decision and remanded the case for further action. They noted that there was a discrepancy between the examining orthopedist and the Office medical advisor regarding whether the ligament laxity was mild or moderate, and what role, if any, the collateral ligament played in this determination. The Board also noted that the Office had failed to heed their previous instruction to include the preexisting impairment of the ankle in the rating. The FECA does not provide for a schedule award of the knee alone, but of the leg. All impairments of the leg must be considered in determining a schedule award.

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SUITABLE EMPLOYMENT - TERMINATION OF BENEFITS

Robert J. Cook, Jr., Docket No. 97-2171, Issued May 13, 1999
Nathaniel Davis, Docket Nos. 97-1565 & 97-2368, Issued May 13, 1999
Alicia A. Diaz, Docket No. 96-2414, Issued May 17, 1999
Regina F. Holt-Anderson, Docket No. 97-2084, Issued May 25, 1999
Kewel S. Khalsa, Docket No. 97-2404, Issued June 15, 1999
Laura Penzo, Docket No. 97-1842, Issued May 11, 1999
Onnie Pickens, Docket No. 97-1637, Issued May 14, 1999
Deborah E. Scott, Docket No. 97-2236, Issued May 12, 1999

In all of these decisions, the Board reversed the Office's decisions to terminate benefits due to refusal of suitable employment, and in most instances, benefits for total disability were reinstated retroactively.

Section 8106(c) of the FECA provides:

A partially disabled employee who-

(1) refuses to seek suitable work; or
(2) refuses or neglects to work after suitable work is offered to, procured by, or secured for him;

is not entitled to compensation.

Section 8106(c) permits the Office to terminate compensation benefits when a suitable job offer is refused. The process of determining a job's suitability is complex, and involves coordination with the employing agency and the treating or examining physicians. Because termination of compensation is such a severe penalty, application of sanctions under section 8106(c) must be performed with utmost care and consideration for the employee's rights.

The Office's errors in the decisions noted above fall into two broad categories. In the first group, which includes the decisions in Cook, Holt-Anderson, Khalsa, and Pickens, the Office notified the claimant that the job was suitable, and allowed 30 days for acceptance of the job or explanation of reasons for refusing the job. When the claimants responded within 30 days of the initial notification, giving reasons for refusing the job, the Office proceeded to find the reasons unacceptable and erroneously terminated benefits without notifying the claimant that the reasons for refusal were not accepted, and giving them an additional period of time within which to accept the job without penalty. Once the Office has made a final decision on the suitability of the job (i.e. after the claimant's reasons for refusing the job have been received and considered), the claimant must be so notified, and afforded a final chance to accept the job.

The other grouping of errors involved deficiencies in the medical evidence. In both Davis and Penzo, there were conflicts in the medical evidence concerning the claimant's ability to perform the offered job. These conflicts should have been resolved prior to finding the job suitable and terminating benefits. Additionally in Davis, the description of the physical requirements of the offered job were not sufficiently detailed to make a suitability determination. In Scott, medical evidence from several physicians supported that the claimant was able to work, but not with her previous employer, the Postal Service, and yet the offered job was with the Postal Service. In Holt-Anderson, the medical evidence that was alleged to support the suitability of the job was either speculative, or recommended further evaluation prior to a return to work. In Diaz, the claim was accepted for both orthopedic and psychiatric conditions, but the job suitability determination was made based upon orthopedic limitations only. The medical evidence of record contained a second opinion psychiatric report outlining work-related job restrictions that were more severe than those contained in the offered job, and no psychiatric specialist had found the offered job suitable.

Please note that during the period in which the Board reversed so many section 8106(c) terminations, there were also many decisions that were affirmed on the same issue.

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FECA CIRCULAR NO. 00-06

January 14, 2000


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

The interest rate to be assessed for the prompt payment bills is 6.75 percent for the period January 1, 2000 through June 30, 2000.

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, 2000.

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

 

DENNIS M. MANKIN
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)

ATTACHMENT 1 - Prompt Payment Interest Rates

PROMPT PAYMENT INTEREST RATES

1/1/00 - 6/30/00

6.75%

7/1/99 - 12/31/99

6.5%

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%


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ATTACHMENT 2 - DMS Interest Rates

DMS INTEREST RATES

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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FECA CIRCULAR NO. 00-07

Feburary 25, 2000


SUBJECT: Code changes for the Departments of the Army, Defense, Labor, State, Transportation, and Veterans Affairs, and the U.S. Postal Service and Other Establishments, 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 the Army, new code 3335 has been added to reflect the creation of a newly separate Army Test and Evaluation Command, formerly part of an existing command. For the Department of Defense, two agencies have been renamed, and a different name has also been given to a Department of Labor agency. For the Department of State, chargeback codes 1335 and 1336 have been added to reflect injuries reported by employees of two newly created Bureaus of the Department of State. For the Department of Transportation, chargeback code 2538 has been added to reflect injuries sustained by employees of the newly created Federal Motor Carrier Safety Administration. For the Department of Veterans Affairs, chargeback code 4281 have been added to reflect injuries reported by employees of the Charleston, South Carolina Consolidated Mail Order Pharmacy (CMOP). For the U.S. Postal Service, chargeback code 5109 has been added to reflect injuries reported by employees of the Mid-Atlantic Area office. Finally, in the Other Establishments, chargeback code 1409 has been added to reflect the establishment of the Presidio Trust in San Francisco, California, chargeback code 1492 has been added to reflect a request that U.S. Capitol Police Senate cases be listed separately from U.S. Capitol Police House cases, the listing for the U.S. Information Agency (USIA) has been replaced by a listing for the International Broadcasting Bureau (IBB) to reflect the abolition of USIA in October, 1999, and a reference to the Arms Control and Disarmament Agency has been deleted to reflect the recent abolition of that agency.

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.

 

DENNIS M. MANKIN
Acting Director for
Federal Employees' Compensation

_________________________________________________________________

Trans-
action
type

Code

Dept.

Agency

Add

3335

Army

Test and Evaluation Command

Add
" "

1335
1336

State
" "

Bureau of Arms Control & Intl Security
Bureau for Public Diplomacy & Public Affairs

Add

2538

DOT

Federal Motor Carrier Safety Administration

Add

4281

VA

Charleston (SC) CMOP

Add

5109

USPS

Mid-Atlantic Area Office

Add
" "

1409
1492

Other Est
" "

Presidio Trust
U.S. Capitol Police - Senate

Change

3015

Defense

from: Defense Investigative Service
to: Defense Security Service

" "

3016

" "

from: Defense Security Assistance Agency
to: Defense Security Cooperation Agency

Change

1122

Labor

from: Office of the American Workplace
to: Office of Labor-Management Standards

Change

1449

Other Est

from: U.S. Information Agency
to: International Broadcasting Bureau

Change

1488

" "

from: U.S. Capitol Police
To: U.S. Capitol Police - House

Delete

1483

Other Est

Arms Control and Disarmament Agency

 

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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FECA CIRCULAR NO. 00-08

March 14, 2000


SUBJECT: Referee Evaluations--Claims of Bias

A number of complaints of bias on the part of certain physicians selected to perform referee examinations have recently been received. Because we want to ensure a consistent, uniform response to all such complaints, we are providing this summary of existing procedures on how to handle complaints regarding OWCP selection of or use of physicians.

The FECA Procedure Manual describes the processes for responding to various types of complaints relating to medical evaluations and reports. These include: complaints concerning physical examinations (see FECA PM Ch. 3-900-14); the process for excluding medical reports from impartial medical examinations (IMEs) (see Ch. 20810-13); suspending the use of physicians in the Physician Directory System (PDS) (FECA Bulletin 00-01; issued November 5, 1999); exclusion of medical providers from payment (see 20 CFR 10.815-826 and PM Ch. 3-800). If the claimant or representative objects to the use of a particular IME physician prior to the examination and presents documented evidence of bias or unprofessional conduct on the part of that physician, see the FECA PM at Ch. 3-550-4.

Credible, reliable medical evidence is vital to the claims process and it is particularly important that OWCP-directed medical examinations are not compromised in any way. Where a complaint is received concerning a physician and/or challenging a medical report, the claims examiner should, enerally, address the complaint in the context of the specific FECA case. The CE should first evaluate the charge and supporting evidence to determine how to proceed. In evaluating any corroborating evidence, the CE may take note of such evidence as public statements made about a physician's credibility, but such evidence (such as derogatory newspaper articles or negative statements about a physician's credibility made in other forums) would not by itself be sufficient to conclude that the physician's report cannot be considered by OWCP. The mere fact that a physician's testimony has been discredited or criticized in another forum does not necessarily discredit the report by the same physician in the OWCP claim. Rather, credibility of the physician must be based on all the facts and circumstances, and the action by OWCP must follow the appropriate procedure manual sections cited above.

If OWCP receives a written complaint concerning a physician's professional conduct (which includes allegations concerning veracity, discrimination or bias) before or following an OWCP-directed medical examination, and that complaint is supported by credible evidence of the type detailed in the procedure manual, the CE may ask the DO manager or district medical director to help develop the evidence. In accordance with FECA Bulletin 00-01 (issued November 5, 1999), OWCP may provide the physician an opportunity to respond to the allegations. OWCP's determination concerning the physician must, however, be based on credible, reliable and objective evidence. Such evidence may include the findings of other administrative bodies where the physician is a party (as opposed to a witness) in the action. Depending on the nature of the allegations, OWCP may also contact the state medical licensing agency to determine whether the physician has had his or her license suspended or revoked.

All offices should note that the memorandum from Acting Director Nancy Ricker to Robert Barnes, Chief of the Branch of Hearings and Review, dated November 3, 1999, concerning this issue is hereby rescinded. It should not be relied upon in making determinations regarding bias.

 

DENNIS M. MANKIN
Acting 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 CIRCULAR NO. 00-09

April 15, 2000


SUBJECT: Compensation Payments--2000 Census

For the 2000 Census, the Bureau of the Census is employing approximately 650,000 individuals in 476 Local Census Offices (LCOs) throughout the U.S. Most of the employees in the LCOs are enumerators and crew leaders on temporary not-to-exceed 180-day appointments.

All employees are paid on an hourly basis. Wages in the Regional Census Centers and the LCOs vary by geographical area. Information about computing compensation for these employees may be found in FECA PM 2-0901.9a.

Claims staff are reminded that special procedures apply to third party injuries sustained by certain Census workers, as described in FECA Bulletin 99-30.

Any questions about pay rates may be referred to the Department of Commerce, Workers' Compensation Center, at (202) 273-3325, ext. 141 or 151.

 

DENNIS M. MANKIN
Acting Director for
Federal Employees' Compensation

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

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FECA CIRCULAR NO. 00-10

May 30, 2000


SUBJECT: Selected ECAB Decisions for July - September 1999

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 a decision terminating benefits under § 8148(a); three decisions on performance of duty (one in which the issue was the application of "the personal comfort doctrine" to flexiplace working arrangements); three decisions on loss of wage-earning capacity; several decisions addressing refusal of suitable work; and others. Should you find, upon reviewing a decision summary, that it affords guidance in a topic that you are addressing, do not fail to obtain the ECAB decision in its entirety for your thorough review.

 

DEBORAH B. SANFORD
Acting 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)

 

IMPARTIAL OPINIONS - OPINION BASED ON AN INCORRECT STANDARD

George Ralston, Docket No. 97-1939, Issued July 21, 1999

The Board's decision in this claim is unusual in that they remanded the case for a fifth impartial medical opinion.

The claimed condition was a myocardial infarction. The Office denied the claim, based on the opinion of the first impartial medical examiner (IME), Dr. Turkel. The claimant appealed the decision, and the Board remanded the case for a second IME, finding that the Dr. Turkel's report was insufficiently rationalized to represent the weight of the medical opinion in the case.

The Office referred the claimant and case to a second IME, Dr. Beaver. Dr. Beaver stated that the claimant's myocardial infarction "was not caused by, precipitated by, or aggravated by his employment." He attributed the development of claimant's cardiac problems to his hypertension, gender, high cholesterol, family history, diabetes and use of tobacco. He stated that the claimant had trouble understanding the internal versus external nature of stress, and that his job demands were not unusual or excessive, but that his ability to cope with the job demands was an issue.

The Office again denied the claim, based on Dr. Beaver's report. The claimant requested an oral hearing, and stated that Dr. Beaver's report was based on an incorrect legal standard and could not represent the weight of the medical evidence. The hearing representative agreed that Dr. Beaver applied an incorrect legal standard by requiring unusual job stresses, and remanded the case for a third IME.

The Office obtained a third IME from Dr. Abovich. Dr. Abovich concluded that the claimant's risk factors of smoking, hypertension and hyperlipidemia were "overwhelmingly...more important than the stress suffered at his work although there is a possibility that work-related stress aggravated or exacerbated cardiovascular problems." The Office denied the claim based on Dr. Abovich's report.

The claimant requested a review of the written record. The hearing represented directed the Office to obtain a supplemental report from Dr. Abovich, because his opinion on causal relationship was speculative. If the supplemental report was not sufficiently clear, the Office was to obtain another IME. The Office obtained a supplemental report from Dr. Abovich, which still not clear on the issue of causal relationship, and so a fourth IME from Dr. Alagona was obtained. Dr. Alagona attributed the claimant's myocardial infarction to nonoccupational factors because his "employment status did not appear to be excessive with regard to either physical or emotional demands or concerns." The Office again denied the claim.

The claimant requested another hearing, and again asserted that the IME (this time, Dr. Alagona) based his opinion on an incorrect legal standard that his job demands be physically or emotionally excessive. The hearing representative affirmed the Office's decision, and found that Dr. Alagona did not base his opinion on an incorrect legal standard.

The Board disagreed, and remanded the case for a fifth IME. They reiterated the principle that there is no requirement for work conditions to be unusual or excessive in order to establish compensability. If ordinary and normal working conditions cause or aggravate a condition, they are sufficient to satisfy the causal relationship test. Dr. Alagona's report suffered from the same defect as those of Drs. Beaver and Abovich.

Obtaining impartial medical opinions is a time-consuming process. When it is necessary to obtain more than one such examination, every effort should be made to ensure that subsequent IMEs do not repeat the errors of the first, and if the errors are repeated, they should not be overlooked or discounted.

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LOSS OF WAGE-EARNING CAPACITY - MODIFICATION

Mildred Alder-Johnson, Docket No. 97-1972, Issued July 19, 1999

In this claim, the Office accepted low back injury and surgery as work-related. The claimant, a former distribution clerk, underwent vocational rehabilitation, earned a master's degree in social work, and obtained work as a counselor for a county agency. On July 27, 1979, the Office found that her actual earnings fairly and reasonably represented her wage-earning capacity and reduced her compensation accordingly.

The claimant received MSWR certification after a period of six years, and also obtained further training in public speaking. She opened her own private practice in 1991. On January 11, 1996, the Office modified the loss of wage-earning capacity determination to reflect no additional loss of wage-earning capacity. This decision was based on the claimant's having undergone additional rehabilitation, and her demonstrated ability to work full-time as a social worker/therapist. Because she was self-employed, the Office based the calculation of her wage-earning capacity on a labor market survey of social worker/therapists in her area, rather than her earnings.

The Board found that the case was not in posture for a decision. The Board agreed with the Office that the claimant was further vocationally rehabilitated after 1979. They also noted that she was employed in a different job, and the Office was required by its own procedures (FECA PM 2.814.11) to determine whether the new job paid at least 25 percent more than the concurrent pay of the job in which she was rated. In this case, the Office did make such a comparison, but found that the earnings in the new position did not exceed the earnings of the previous position by more than 25 percent. They then proceeded to use earnings derived from a labor market survey of similar positions. This approach is not in accordance with existing procedures. In addition, where a loss of wage-earning capacity is based on earnings from self-employment, deductions should be made from the gross earnings for direct expenses, such as cost of equipment and maintenance, insurance, taxes, wages of other employees, and other office expenses. The case was remanded for a recalculation of the claimant's adjusted actual earnings, and a determination of whether those adjusted earnings represented more than a 25 percent increase over her previous earning capacity.

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LOSS OF WAGE-EARNING CAPACITY - SELF-EMPLOYMENT

Louis F. Bertoncini, Docket No. 97-2165, Issued July 12, 1999

The Board's decision in this case illustrates another instance in which a loss of wage-earning capacity based on self-employment was calculated incorrectly.

The claimant received an overpayment of compensation because he worked as a real-estate agent while continuing to receive compensation for total disability. When the Office calculated the amount of the overpayment, they used an incorrect rate of pay, and also computed the loss of wage-earning capacity based on the claimant's gross earnings from self-employment. The Board quoted from their prior decision in Thomas F. Jordan, 47 ECAB 382 (1996), stating, "A self-employed claimant has expenses associated with conducting business which must be paid from the receipts of the business. It, therefore, would be inequitable to calculate a loss of wage-earning capacity on the basis of a claimant's gross earnings from self-employment as that would not allow for the costs of conducting the business."

The case was remanded for recalculation of the overpayment.

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LOSS OF WAGE-EARNING CAPACITY – MODIFICATION

Penny L. Baggett, Docket No. 97-2190, issued September 28, 1999

In the above case, the Board found that the Office's reduction of the claimant's benefits based on a Loss of Wage-earning Capacity (LWEC) was properly computed in June 1996. However, it held that modification of the LWEC in February 1997 was erroneous, as the Office had not discharged its burden of proof to take such action.

The claimant was a part-time relief rural carrier who was in a vehicle collision that resulted in an aggravation of her degenerative disc disease. Three and a half years later, the claimant returned to work as a part-time limited duty casual clerk. Five years later the claimant accepted a temporary rehabilitation position of modified casual clerk, working approximately 25 hours a week for $11.83 per hour. The Office compared the new job with her date of injury position in which she had worked 33.88 hours per week and was paid $9.36 per hour and thus obtained the claimant's loss of wage-earning capacity using the Shadrick formula (method adopted from Albert C. Shadrick, 5 ECAB 376 [1953]). The Office determined that the position fairly and reasonably represented her wage-earning capacity and reduced her benefits accordingly.

However, six months thereafter, the employing agency retroactively raised the claimant's pay rate to $16.07 per hour based upon a special exception, and asked the Office to modify its LWEC determination based on the corrected salary. On recomputation of the WEC determination, the claimant was found to have no loss of wage-earning capacity. The Board found that Office failed to discharge its burden of proof to modify the claimant's wage-earning capacity. The Board referred to a similar decision, Ronald M. Yakota,1 in which it reiterated the established conditions for modifying an LWEC:

"Once the wage-earning capacity of an injured employee is properly determined, it remains undisturbed regardless of actual earnings or lack of earnings. A modification of such determination is not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original determination was in fact erroneous. The burden is on the Office to establish that there has been a change so as to affect the employee's capacity to earn wages in the job (previously) determined to represent his earning capacity..." The Board explained that an increase in pay by itself, is not sufficient to support that there has been a change in the employee's capacity to earn wages. It stressed that, absent a showing of additional qualifications obtained by the employee through training, it is improper to make a new LWEC determination based on increased earnings. Furthermore, the Board pointed to the Office's own procedures which specifically provide guidelines for the Office meeting its burden for modification of a loss of wage-earning capacity.2 The Board pointed out that the Office noted that the claimant's pay rate had increased but failed to determine whether she had undergone training or vocational rehabilitation to warrant the current salary. The decision by the Office which modified the LWEC resulting in a loss of entitlement to monetary benefits was reversed by the Board.

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RECONSIDERATION - TIMELINESS FOR SUSPENSIONS UNDER SECTION 8123(D)

Frank W. Manning, Docket No. 97-1505, Issued August 4, 1999

In this claim, after unsuccessful attempts to obtain updated medical information, the claimant was scheduled for a second opinion evaluation on July 1, 1994. The claimant was notified that refusal to submit to or obstruction of the examination would result in suspension of compensation until the obstruction stopped. The claimant did not go for examination, and did not respond to the notification, and the Office suspended compensation by a decision dated August 9, 1994 on the basis of the provisions of 5 U.S.C. 8123(d).

The claimant requested reconsideration by letter dated July 20, 1996, stating that he had no knowledge of the August 9, 1994 decision until July 5, 1996, when his wife notified him that they were in financial difficulty because he had not received compensation since August 1994. The claimant submitted a medical report from his physician dated July 22, 1996, and indicated that he would be willing to comply with any OWCP requests necessary to remove the obstruction. The Office denied reconsideration on the basis that the request was not timely filed, and the evidence submitted did not present clear evidence of error.

The Board found that the Office's suspension of benefits was proper, but that the Office improperly neglected to act on the claimant's willingness to comply with the direction to undergo a second opinion evaluation. Pursuant to the regulations at 20 C.F.R. 10.323, there is no time limitation on a claimant's willingness to comply with the provisions of 5 U.S.C. 8123(d). The Board vacated the Office's reconsideration decision and remanded the case so the Office could address whether compensation should be reinstated.

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SUITABLE EMPLOYMENT - REFUSAL FOR RELIGIOUS REASONS

Marvin L. Wyatt, Docket No. 97-2118, Issued August 19, 1999

The claimant, who had an accepted knee condition, was receiving compensation benefits for total disability. The employer offered a job as a modified carrier, which was approved by his attending physician. The Office notified the claimant that the offered job had been found to be suitable, and was given 30 days to accept the job or provide reasons for refusing it. The claimant did not respond, and the Office subsequently terminated compensation on the basis that he refused an offer of suitable work.

The claimant's representative requested reconsideration of the termination, stating that the work hours of the offered job (9:30 p.m. to 6:00 a.m. with Wednesday and Thursday nights off) would "interfere with the practice of his religion." The claimant was a minister in his church. The Office denied the request for reconsideration on the basis that that the evidence submitted in support of the application for review was irrelevant, and therefore insufficient to warrant merit review of the prior decision.

In affirming the Office's decision, the Board reiterated the three acceptable reasons for refusing an offer of work: (1) withdrawal of the offered position; (2) medical evidence establishes that the claimant's condition has worsened to the point where he or she can no longer perform the duties of the offered job; and (3) the claimant has accepted other work that fairly and reasonably represents his or her wage-earning capacity. The Board cited two previous decisions in which religious beliefs were discounted as the basis for overturning Office decisions. In Frank Braxton McElroy, 29 ECAB 806, 812 (1978), the claimant's failure to file a timely claim was not excused by his religious belief that prayer would cure his hearing loss. In Robert Gray, 39 ECAB 1239, 1244 (1988), the claimant's inability to fulfill religious responsibilities due to a conflict with scheduled work hours was not a compensable factor of employment in a psychiatric claim.

It should also be noted that the situation in this claim differed from those in a group of decisions discussed in FECA Circular 00-4, in that the claimant did not respond to the initial notification of suitability, and so termination without providing an additional period of time for the claimant to accept the job was appropriate.

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SUITABLE EMPLOYMENT - CLAIMANT ALREADY WORKING

Dorothy L. Gatson, Docket No. 99-260, Issued July 20, 1999

This claim was accepted for lumbar radiculopathy. The claimant returned to a limited-duty job for four hours per day on July 5, 1995. In November 1995, she increased her hours to five per day. In November 1996, her hours increased to six per day.

The medical evidence supported that the claimant could work six hours per day, with restrictions. On February 4, 1997, the employer offered the claimant a permanent light-duty job as a modified city carrier, six hours per day. The Office found the job suitable, and so notified the claimant, allowing 30 days for acceptance of the job or reasons for refusal.

The claimant refused the job on the basis that it would require her to continually drive and to enter and exit the vehicle. She also stated that the routes involved were not such that they allowed sitting while casing. She noted that her current position allowed her to sit with a back support while casing, and that beginning March 1, 1997, she would be able to work 8 hours per day in her current position. On February 24, 1997, her attending physician released her to work eight hours per day, with restrictions. The claimant returned to full-time work on March 8, 1997.

The Office notified the claimant that her reasons for refusing the job offer were not acceptable, and gave her an additional 15 days to accept the position. The Office subsequently terminated compensation benefits for failure to accept suitable employment. A hearing representative affirmed the Office's decision.

The Board found that the claimant had not shown that the offered job was not suitable. However, the claimant also refused the job offer on the basis that she was already working, and that she was increasing her work hours to eight per day, rather than the six noted in the job offer. The Office did not consider whether the job that the claimant was already performing represented her wage-earning capacity. Due to the Office's failure to consider this reason for refusing the job offer, termination of compensation was not justified, as the record does not establish that the claimant refused to perform suitable work. The office's decision was reversed.

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REFUSAL OF SUITABLE WORK, § 8106(c) PENALTY PROVISION REVERSAL

James T. Johnson, Docket No. 99-276, issued September 24, 1999;

In this case, the Office had terminated benefits in view of the claimant's refusal to accept "suitable employment," and the decision had been affirmed by the Branch of Hearings and Review. The Board ruled that the Office had failed to discharge its burden to terminate benefits, because it had not clearly resolved the question of whether the claimant could perform the job offered in view of his work injury-related restrictions.

The case had been accepted for cervical strain, mild cerebral concussion, contusion of the scalp, and post-traumatic headache syndrome. The claimant's attending physician was not in favor of the location of the position offered due to the excessive light, noise and fumes, and the inappropriate length of the time needed to commute. A second-opinion specialist felt that the job should be tried, and that the claimant's inability to travel was subjective, and could be remedied by engaging an addiction specialist who could assist in reducing the claimant's narcotic medications. The claimant accepted the job offer in December 1993, but failed to report in January 1994 when expected to do so.

The Office reiterated its finding of suitability on May 30, 1996. Then the claimant explained that he had been hospitalized in 1994 and 1995 to accommodate the change in his medications. Since he would again be hospitalized in July 1996, his attorney proposed that the Office re-evaluate the claimant after that hospitalization. Subsequently, the Office notified the claimant that his refusal was not justified, allowed him an additional 15 days to accept the position, and then terminated compensation in October 1996. That decision was affirmed by Hearings and Review in October 1997.

The Board reversed the decisions, returning the claimant to the rolls, on the grounds that the Office had failed to meet its burden to terminate compensation. The issue was not whether the claimant had been allowed due process, but rather whether the weight of the medical evidence established that the job offered was suitable, considering the work restrictions imposed by the claimant's accepted condition.

The Board pointed out that, in view of section 8106(c) functioning as a penalty provision, barring further entitlement to compensation when an employee refuses an offer of suitable work; it should be narrowly construed. That is, the question of whether or not the claimant has refused suitable work must be clearly settled. Moreover, whether an employee has the physical ability to perform the job offered is a medical issue which must be resolved by medical evidence. Therefore, where a conflict in the medical evidence exists, the Office's burden includes resolving the conflict by referring the claimant to a qualified impartial medical specialist. On remand of the case, the Board directed that the conflict in medical opinion between the claimant's treating psychiatrist and the second opinion specialist be resolved through referral of the claimant to an appropriate impartial specialist.

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TERMINATION FOR REFUSAL OF SUITABLE WORK UNDER 8106(C) AFFIRMED

Yvonne M. Gibson, Docket 99-389, issued September 27, 1999; Terry L. Edmonds, Docket 98-1970, issued September 23, 1999; Linda Musick, Docket 98-19, issued September 15, 1999; Dennis G. Merrill, Docket 97-24, issued September 16, 1999

The above cases involved situations in which the Office terminated benefits due to the claimant's refusal to accept an offer of suitable employment, and where the Board affirmed the Office's decision. In the case of Gibson, the claimant's attending physician's reports supported that she could not return to work at the Postal Service in any capacity due her inability to stand or sit for prolonged periods. The Office initially found that the second-opinion specialist's opinion outweighed that of the attending physician, and advised the claimant that the offered position was found to be suitable. When the claimant failed to accept the position within 30 days, compensation for wage loss and permanent impairment was denied. Subsequently, a hearing representative found that the second-opinion referral by the Office had resulted in a conflict in the medical evidence. The conflict was properly resolved by an examination and review of the case by a board-certified impartial specialist in Orthopedics.

The Merrill case was another in which referral to a second-opinion specialist led to a conflict in the medical evidence as to whether the claimant was capable of performing the duties of the offered position. The job offered by the employing agency was based on the restrictions outlined by the referee medical specialist that had been obtained. In both Gibson and Merrill, the Board emphasized that the question of whether an employee is physically capable of performing the job is one that must be resolved by medical evidence. In settling the question of suitability satisfactorily, the Board found that the Office had discharged its burden to terminate benefits in both of these cases.

In the Musick case, the claimant advised that she was unable to perform the duties of the modified light duty position offered due to a deterioration in her condition. The duties of the position offered were in direct correspondence to the restrictions previously outlined by the claimant's physician, and the Office advised the claimant that it was considered suitable. Also, the Office indicated that in view of the claimant having moved more than 50 miles away since her separation from her former employment, relocation expenses would be covered by OWCP. The claimant declined to accept the offer and, consequently, her benefits were terminated. When the ECAB affirmed the decision, it pointed out that the question of whether the claimant was able to perform the duties of the position was a medical one; that the claimant's statement that she could not tolerate the duties was not sufficient; and that she had failed to provide an opinion from her attending physician which supported that she could not perform the duties of the offered position. It was noted that the Office had met its burden to establish the work offered was suitable.

In Edmonds, the claimant used the medical reports of his treating osteopath to support his claims that he was neither physically nor emotionally capable of the modified postal carrier position offered to him by his former employer. The treating physician also recommended that the claimant be treated at a pain clinic and that he participate in a work hardening program. Her reports, however, failed to adequately detail the claimant's findings upon examination or diagnostic testing, or to explain the need for work hardening or for treatment at a pain clinic. Similarly, her reports failed to establish that the claimant was physically incapable of performing the modified carrier position, which was essentially sedentary with the option to stand as necessary.

The Office relied on the opinion of a board-certified specialist in physical medicine and rehabilitation to help determine whether the claimant was physically capable of performing the job offered. The opinion of a board-certified psychiatrist was used to establish that the claimant's emotional state did not prevent him from performing the duties of the position. Even the claimant's treating psychiatrist agreed that while returning the claimant to work would increase his anger and frustration, this did not mean that he was psychiatrically disabled from performing the duties of the modified carrier position.

In all of the four decisions above, the Board ruled that the Office had discharged its burden satisfactorily by clearly settling the question of suitability, and by affording the claimant due process prior to termination of compensation.

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CAUSAL RELATIONSHIP - APPORTIONMENT OF CAUSAL FACTORS

James M. Taylor, Docket No. 97-2497, Issued July 22, 1999

The Board's decision in this case serves as a reminder that in claims where both work-related and non-work-related factors are contributory, there is no requirement that the degree of disability attributable to each set of factors be delineated.

The claimant, a letter carrier, claimed a right elbow and shoulder condition, for which he required surgery on December 30, 1996. He attributed his condition to repetitive movements required case mail and deliver mail. The Office denied the claim on the basis that the evidence failed to establish that his condition was causally related to employment factors. They noted that the medical evidence did not support the relationship of the diagnosed conditions to work factors, and that the claimant had noted the onset of right shoulder pain in July after painting his entire house.

The claimant requested reconsideration, and submitted a report from his physician, Dr. Curtis. In this report, Dr. Curtis stated that when surgery was performed, he found that a chronic tear of the rotator cuff. He associated this finding with frequent use of the arm at or above shoulder level. He stated that changes found on the pathology report indicated that the process has been ongoing for a long time, and he related the changes to the claimant's casing mail at work. He stated that the condition predated the house painting in July, and that "the overuse in July 1996 simply made the discomfort refractory to conservative treatment."

The Office denied modification of prior decision, stating that the claimant sought no treatment for his condition until October 1996, which was after he painted his house. They stated that even if the claimant did have a degenerative condition of the shoulder attributable to his work, it was of no clinical significance until after he painted his house, and that the need for treatment was occasioned by the non-work factors only.

The Board found that the case was not in posture for a decision, as there was an uncontroverted inference of causal relationship, and remanded the case to seek clarification from Dr. Curtis. They stated that Dr. Curtis provided two reasons for the claimant's shoulder condition: frequent use of the arm at or above shoulder level while working; and house painting in July, 1996. Dr. Curtis did not state which of the two factors contributed to the condition more. Causal relationship does not denote a single causal factor, and does not preclude aggravation of preexisting condition by employment factors. The Office stated that Dr. Curtis noted a mix of work and non-work factors, but did not apportion the degree of contribution made by the work factors. The Board has previously held that this type of apportionment is inappropriate; if work factors contribute in any way to the development of the condition, the condition would be considered employment-related.

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PERFORMANCE OF DUTY - APPLICATION OF THE PERSONAL COMFORT DOCTRINE TO FLEXIPLACE WORKING ARRANGEMENTS

Julietta M. Reynolds, Docket No. 97-695, Issued August 13, 1999

This claimant in this case was injured while working at home while under a flexiplace agreement with her employer. While she was working at home, it started getting cold, and the heat failed to come on when she adjusted the thermostat. She contacted her husband, who advised her to contact the oil company. She called the oil company and received instructions on how to restart the furnace. She then went to the basement where the furnace was located. While going back up the stairs, she fell and injured her right leg and left foot.

The employer controverted the claim on the basis that she was not in the performance of duty at the time of injury. She did not notify her supervisor when her workday was interrupted by an emergency. She was not directed to repair the furnace, and the furnace repair did not relate to her official duties or the mission of the employer.

The Office denied the claim, finding that the claimant had deviated from the course of her employment for personal reasons. A hearing representative subsequently found that the claimant's injury was covered under the personal comfort doctrine, in that she was injured while trying to raise the temperature of her work environment to a comfortable level. The Office was directed to accept the claim.

The Office Assistant Branch Chief reopened the claim under 5 U.S.C. 8128(a) and vacated the decision of the hearing representative. He noted that the personal comfort doctrine pertains to injuries that occur on the employer's premises. He further stated:

In the traditional type of workplace situation where work is performed on the employer's premises, the employer can exercise complete control of the work environment and can maintain it in a safe manner so as to reduce the likelihood of workplace injuries. One of the legal consequences of providing employment under these circumstances is the "personal comfort doctrine," which has evolved to provide coverage under workers' compensation statutes for injuries that occur on the employer's premises while the employee is ministering to his or her personal comfort instead of engaging in activities that further the employer's business.

However, some modern workplace situations, such as the flexiplace agreement by which the claimant in this case performed at least some of her work at home, are so radically different from the traditional workplace situation described above that legal concepts like the "personal comfort doctrine" cannot be fairly applied to find coverage for injuries that occur under these circumstances due to the fact that it is the employee, not the employer, who is directly responsible for maintaining the work environment in a safe manner. As such, an injury sustained while the employee is maintaining the workplace environment at home instead of performing his or her actual work duties should not be considered the responsibility of the employer.

...the majority rule in the states is that only those injuries which occur while an employee is actually performing his or her work at home will be found to occur "in the course of employment." Accordingly, there is no flexiplace equivalent to the "personal comfort doctrine" that can be used to extend coverage under the FECA to the claimant's...injury sustained as a result of repairing her furnace at home.

The Board affirmed the rescission of the acceptance, and quoted extensively from FECA Bulletin No. 98-9, issued June 5, 1998. They found that the Office's exercise of discretion in this case, to exclude the personal comfort doctrine from flexiplace situations, did not conflict with the intent of the FECA.

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PERFORMANCE OF DUTY

George Patrick Semonco, Docket No. 97-1760, issued September 22, 1999; Janet R. Landesberg, Docket No. 98-1812, issued September 10, 1999

In the Semonco decision, which the Board set aside stating it was not in posture for a decision, the claimant (a letter carrier) alleged that he had been intimidated by a postal patron and suffered an emotional condition. This patron had previously assaulted him with a gun, and the claimant had agreed to testify at the postal patron's sentencing hearing. The Office initially denied the case due the claimant's failure to timely submit requested evidence, and a subsequent decision rejected the claim for the appellant's failure to submit sufficient evidence to support his claim of intimidation.

However, the Board pointed out in its decision that the claimant's participation in the sentencing hearing constituted a specially assigned work duty arising out of his federal employment. The Board added that this case was distinct from Blondell Blassingame (48 ECAB__[Docket No. 95-2779, issued October 9, 1996]), and similar cases in which an employee's participation in EEOC proceedings will not generally afford coverage under the Act. It emphasized that such proceedings as EEOC hearings are generally for the benefit of the employee, while the legal hearing in which the claimant had participated actually provided a benefit to the employer in securing the safety of its employees while on their assigned postal routes. The Board ordered that upon return of the case to the district office, further medical development be pursued; specifically, that a Statement of Accepted Facts be prepared and the case referred to an appropriate specialist to consider the issue of causal relationship.

The Landesberg case involved a motor vehicle accident of an administrative law judge who had been authorized eight hours of official time to attend a seminar. The seminar was to be held in a city that was away from her place of employment and her weekday residence, but within commuting distance of her townhome that she owned with her husband. The employee was paying the cost for the seminar, and the employer was not reimbursing her for travel or any other expenses. The case was denied on the basis that the injury did not occur in the performance of duty, and modification was denied in two subsequent decisions.

The claimant argued that she was in a travel status from the time she left her duty station on the day before the seminar she had planned to attend. The location where the auto accident occurred was in a parking lot of a take-out restaurant in the same town as her townhome. Also, the accident occurred shortly after a brief stop at the townhome, and the day before the seminar was to take place. The Board ruled that the claimant's injury was not sustained while in the performance of duty.

The Board noted that:

"Under workers' compensation laws, an employee whose work entails travel away from the employer's premises is within the course of employment continuously during the trip, except when a distinct departure on a personal errand is shown.3 ...The FECA covers an employee 24 hours a day when he or she is on a travel status, or on a temporary-duty assignment or a special mission and engaged in activities essential or incidental to such duties.4

The Board further explained that the general rule with respect to attendance at conventions, seminars and professional meetings states that compensability turns on "whether the claimant's contract of employment contemplated attendance as an incident of his work."5 It quoted Larson's Workers Compensation Law wherein it states: "It is not enough that the employer would benefit indirectly through the employee's increased knowledge and experience." The Board added that in a case where the employer required the employee to attend a seminar or conference, this would be considered probative evidence that attendance was contemplated as an incident of work.

The Board affirmed the Office's decision in this case, noting that the claimant was not in the performance of duty at the time that she was involved in the motor vehicle accident at the restaurant parking lot. However, it added that the claimant still would not have been in the performance of duty if she had actually attended the seminar. The Board emphasized that the connection of the seminar to the employment was simply not sufficient to bring the claimant's attendance at the seminar within the scope of her employment.

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TERMINATION OF BENEFITS UNDER 5 U.S.C. 8148(A)

Kenneth E. Fenner, Docket No. 97-2543, Issued July 27, 1999

The Office terminated benefits in this claim pursuant to the provisions of 5 U.S.C. 8128(a), which provide:

Any individual convicted of a violation of section 1920 of title 18, or any other federal or state criminal statute relating to fraud in the application for [or] receipt of any benefit under [the Act] shall forfeit (as of the date of such conviction) any entitlement to any benefits such individual would otherwise be entitled to under [the Act] for any injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take under section 8106 or 8129.

The claimant pled guilty to a charge of theft of U.S. government funds, a violation of 18 U.S.C. 641. With the guilty plea, additional charges of fraud to obtain federal employees' compensation and false demands for payment were dropped. The claimant had altered 29 prescription receipts to show that he had paid a greater amount than he was actually charged, which resulted in an overpayment to him in the amount of $1,940.00.

The Board affirmed the Office's decision. They stated that while the violation for which the claimant was convicted was theft, rather than fraud, the facts clearly established that the theft occurred in an attempt to defraud the government, and termination of benefits as of the date of his conviction was appropriate.

The claimant also attempted to argue that he had made full restitution, and that he would suffer hardship as a result of the termination of benefits. The Board stated that the terms of 5 U.S.C. 8148(a) were clear and unambiguous, and that neither the Office nor the Board had the authority to enlarge the terms of the Act.

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FECA CIRCULAR NO. 00-11

June 30, 2000


SUBJECT: SELECTED ECAB DECISIONS FOR OCTOBER - DECEMBER, 1999

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject. Covered topics include suitable employment, performance of duty, reducing loss of wage-earning capacity to zero, claims for increased schedule awards, the effect of health benefits deductions on overpayment calculations, and timely filing based on the employer's actual knowledge.

 

DEBORAH B. SANFORD Acting 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)

 

OVERPAYMENTS

Kenneth E. Rush, Docket No. 98-321, Issued October 6, 1999

This case involves an overpayment created due to the continuation of compensation after a return to work without wage loss. The original overpayment was calculated as the gross amount paid to the claimant during the period between the return to work and the cessation of compensation.

The Board, relying on Sandra K. Neil, 40 ECAB 924 (1989), noted that if a claimant does not derive the benefit of deductions made on his or her behalf, he or she should not be charged for those deductions. In the case at issue, the Office deducted for both health benefits and optional life insurance during the same period that the claimant's employer was doing so on his behalf. As such, the amount of the debt was found to have been calculated improperly; the debt amount should have been the net compensation received during the period in question.

This should serve as a reminder to take health benefit and optional life insurance deductions, along with the reason for the creation of the overpayment, into account when computing an overpayment.

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PERFORMANCE OF DUTY

Yvonne L. McCoy, Docket No. 98-580, Issued October 14, 1999

The claimant in this case claimed to have been injured when she fell at her desk. At the time of the injury, she was suspended from her position due to conduct issues. She arrived at work despite the suspension, and was asked to leave. She left, but then returned, and the Federal Protective Service was called to escort her out. During this escort, the claimed injury occurred. The Office denied her claim as not having occurred in the performance of duty, as her presence in the workplace was in direct contravention of her suspension.

The Board affirmed this denial, finding that Ms. McCoy's presence at the workplace was "not for the fulfillment of her employment duties." The Board also found that the refusal to leave until the Federal Protective Service was called was misconduct (although not of the level of statutorily willful misconduct).

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PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT

Ylanda Y. Dugay, Docket No. 97-1912, Issued December 2, 1999

The employee filed an occupational disease claim for sleep dysfunction and stress due to working at night. She had been working on the night shift (12:50 am to 9:00 am) for ten years, and found that she was increasingly tired, forgetful, unable to meet deadlines, nervous, and depressed. She did not request a change of shift. Considerable medical evidence was submitted to support that working the night shift caused her condition. The Office denied the claim, finding that she failed to establish a compensable factor of employment, and her condition was not sustained in the performance of duty.

The Board found that the case was not in posture for a decision, and remanded the case for preparation of a statement of accepted facts and further development of the medical evidence. The Board noted, "Compensability does not arise with frustration over not being able to work in a particular environment, but rather it arises from performance of regular or specially assigned duties." The employee's working the night shift constituted a compensable employment factor, because such work related to the performance of her regular duties.

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PERFORMANCE OF DUTY - PERSONAL ERRAND

Amy Ureel, claiming as widow of Michael Ureel, Docket No. 97-1752, Issued December 28, 1999

The employee in this decision was killed in a motor vehicle accident. He and a co-worker had worked at one employer location, Slocum Annex, during the morning, and were instructed to return back to the main post office, located two and one-half miles away. As the two employees left Slocum Annex, Mr. Ureel stated his intent to stop at his apartment to pick up a leave slip. The apartment was located off of Grand River Avenue. Mr. Ureel stopped at his apartment and retrieved the leave slip. As his vehicle was leaving the private street where the apartment complex was located and turning on to Grand River Avenue, a westbound motorist struck his vehicle, and he was killed. There was no finding as to whether the employee was attempting to turn left or right. The Office denied the claim on the basis that the employee deviated from his main business route to attend to a personal errand, and had not regained the main business route at the time of the accident, and was therefore not in the performance of duty.

Initially, the Board considered whether the employee was on a personal errand or not at the time of injury. The employee's retrieving a leave slip did not further the employer's business, and was of benefit to the employee, not the employer, and was therefore personal in nature. The Board also considered whether the deviation in this instance would be considered insubstantial, such as momentary diversions needed to administer to one's personal comfort. The Board found that the deviation in this case did not minister to a personal comfort need.

The Board then considered whether, at the time of the accident, the employee had completed his personal errand and resumed his business route. Testimony and statements from coworkers indicated that there were several possible reasonable routes between the two work sites. The employer did not direct employees to take one specific route. A review of a map of the area revealed that there were several possible routes that involved travelling on Grand River Avenue.

The employee apparently left the Slocum Annex and traveled west on Grand River Avenue, passing Drake Road, then turning right into the private drive that led to his apartment complex. The Director argued that the point of deviation from the business route was the intersection of Grand River Avenue and Drake Road. This was based in part on an observation that the employee was attempting to turn left (east) onto Grand River Avenue at the time of the accident, and must have been returning to Drake Road to resume the business route. The Board found, however, that the location where the accident occurred on Grand Avenue was part of an accepted business route between Slocum Annex and the main post office. Whether he intended to turn right or left onto Grand River Avenue did not matter, because the personal deviation ceased as soon as he entered Grand River Avenue. The Office's decision was reversed.

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PERFORMANCE OF DUTY - PREMISES

Denise A. Curry, Docket No. 97-2579, Issued November 3, 1999

The claimant in this decision was injured when she slipped and fell on a sidewalk adjacent to the employer's premises, just prior to her usual starting time. The sidewalk was snow-covered, and was a public city-owned sidewalk. Under local ordinances, the owner or person in possession of the property abutting a public sidewalk was liable for any injury caused by the presence of ice or snow. The Office denied the claim as not having occurred in the performance of duty.

An Office hearing representative found that the sidewalk on which the claimant fell was not reserved exclusively or even primarily for employees of the employing establishment, and that responsibility for snow removal did not confer ownership or control of the sidewalk to the employer, or the status of premises upon the sidewalk. In subsequent requests for reconsideration, the claimant's attorney argued that employees of the employing agency removed snow from the sidewalk, and that town code required timely removal of snow and ice. Modification of the prior decision was denied.

The Board affirmed the Office's decisions. They found that the injury took place on a public sidewalk, and was not part of the employer's premises. The proximity rule did not apply in this instance, because the ice and snow were a hazard common to anyone using the sidewalk, and not specifically related to the employment. The Board also noted that the employer's responsibility to clear the sidewalk might subject the agency to tort liability under the Federal Tort Claims Act.

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REFUSAL OF SUITABLE WORK

Ronald B. Jackson, Docket No. 97-2524, Issued December 13, 1999

The employee in this decision was a postal clerk who sustained a back injury. After several periods of intermittent leave, return to light duty, and recurrences, he began to work as a part-time community service officer at $8.00 per hour, at a location within a few minutes of his home. Prior to his paid employment, he performed volunteer work for the same employer.

The Federal employing establishment offered the employee a full-time modified rehabilitation clerk position. The employee refused the job, stating that it would require a ninety-minute commute each way. The office found that the job was suitable and so informed the employee. The employee again refused the job, stating that the commute was too long, and that his current job, in which he performed similar duties, was only four and one-half minutes from his home. After giving the employee an additional 15 days within which to accept the position, the Office terminated compensation for failure to accept suitable work, finding that the job he currently held did not represent his wage-earning capacity because he would earn more from the offered position.

The Board found that the Office had improperly found that the employee refused suitable work. If an employee already has a job at the time the Federal employer offers another job, the office must first consider whether the actual earnings fairly and reasonably represent the individual's wage-earning capacity. This determination must be based on full consideration of all the factors involved in the particular case. In this instance, the only reason offered for finding that the employee's actual earnings did not represent his wage-earning capacity was that he would receive higher wages in the offered position. The mere fact that a higher-paying position is offered does not mean that an employee has a higher wage-earning capacity. Actual earnings in a job in the private sector cannot be compared with earnings from an offered federal job. The Office must consider whether the actual earnings fairly and reasonable represent what the claimant could be expected to earn in the general labor market in the commuting area. The Office did not conduct an open labor market survey prior to finding that the actual job did not represent the employee's wage-earning capacity, and the Board reversed their decision.

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REFUSAL TO ACCEPT SUITABLE EMPLOYMENT - RELOCATION

Oliver E. Chambers, Docket No. 99-683, Issued November 4, 1999

The issue in this claim was whether the claimant refused an offer of suitable work. The claimant, an MSHA safety specialist who lived in Tennessee, sustained a work-related back injury in 1986. In 1996, the claimant's attending Board-certified orthopedic surgeon released him for work, with certain physical restrictions.

The employer offered him a job as a mine safety health specialist, in Birmingham, Alabama, with relocation expenses. The claimant refused the job, stating that he was not physically capable of performing the job. The Office found the job suitable, and informed him that he had 30 days to accept the job offer or explain why he refused it. When the claimant did not respond, the Office terminated monetary compensation for refusing an offer of suitable work.

The claimant requested a hearing, and submitted notes from his physician stating that the physician had left the number of hours the claimant was able to work per day blank, and that the claimant could perform the offered job at a local office, but was not able to drive a car for any length of time, or travel to other states. The hearing representative affirmed the Office's decision.

The Board also affirmed the Office's decision, finding that the physical requirements of the offered job were in accordance with the attending physician's restrictions. Although the claimant preferred not to relocate to Birmingham, Alabama, he was still being carried on the employing agency's rolls, and thus the agency was required to find him suitable work. He was not justified in refusing the job offer, which included relocation expenses.

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REHABILITATION - REDUCTION TO ZERO FOR FAILURE TO COOPERATE

Jacquelyn V. Pearsall, Docket No. 98-111, Issued December 6, 1999
Kenneth A. Watson, Docket No. 98-763, Issued December 17, 1999

In both of these decisions, the Board reversed the Office's decision to reduce compensation to zero based on the employee's failure to cooperate with vocational rehabilitation efforts without good cause.

In Pearsall, the employee actively participated in the rehabilitation process from 1994 through 1996, when services were interrupted due to the need for post-surgical therapy. In 1997, the attending physician released the employee for work, with restrictions, and rehabilitation efforts were resumed. Vocational testing had been performed previously, and job categories were identified which were appropriate for the employee and available in her geographic area.

The employee refused to resume rehabilitation efforts due to back pain, even though the medical evidence supported her ability to work. After advising her that her compensation would be reduced to zero for failure to cooperate with the rehabilitation effort, the Office terminated compensation. A subsequent review of the written record resulted in an affirmation of the Office's decision.

The Board found that the Office improperly reduced the employee's compensation to zero. Section 8113(b) of the FECA provides for reduction of monetary compensation in accordance with what would have been the wage-earning capacity if an individual does not cooperate in the rehabilitation effort. The Regulations in effect at the time of the Office's decision state at 20 CFR 10.124(f), in part:

If an employee without good cause fails or refuses to apply for, undergo, participate in, or continue participation in the early but necessary stages of a vocational rehabilitation effort (i.e., interviews, testing, counseling, and work evaluations), the Office cannot determine what would have been the employee's wage-earning capacity had there not been such failure or refusal. It will be assumed, therefore, in the absence of evidence to the contrary, that the vocational rehabilitation effort would have resulted in a return to work with no loss of wage-earning capacity and the Office will reduce the employee's monetary compensation accordingly.

The Office erred in assuming a loss of wage-earning capacity of zero, because the claimant's refusal to participate did not occur in the early stages of rehabilitation. She had participated in testing and counseling, and appropriate jobs had been identified. The Office had sufficient information to determine her wage-earning capacity, and was not justified in assuming a zero loss of wage-earning capacity.

In Watson, the employee met with his rehabilitation counselor, underwent testing, and cooperated to the extent that an appropriate job training opportunity was identified. As in Pearsall, the assumption of a zero loss of wage-earning capacity could not be made because the employee did cooperate in the early states of vocational rehabilitation. Rather, in both of these cases, a loss of wage-earning capacity should have been established based on the identified positions, which may or may not have resulted in a reduction to zero.

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SCHEDULE AWARD--CLAIM FOR INCREASE

Linda T. Brown, Docket No. 98-498, Issued October 1, 1999

The claimant in this case was denied a schedule award in August of 1995 due to a lack of ratable impairment. On September 2, 1997, she requested that the office reconsider; she also submitted a new medical report from her treating physician noting both that her condition had stabilized and that she had a permanent impairment. The Office denied her request for reconsideration as untimely and without clear evidence of error.

The Board, citing Paul R. Reedy, 45 ECAB 488 (1994), found that this denial of the request for reconsideration was not correct because she was not truly requesting reconsideration of the 1995 decision. All of the new information provided noted her current (1997) condition, not her condition at the time of the decision. The Board found that the claimant was really requesting an increased schedule award, and was entitled to a decision regarding that request.

Claims staff should note this decision when considering reconsideration requests on schedule awards.

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TIMELY FILING - TREATMENT AT EMPLOYEE ASSISTANCE PROGRAM

Delmont L. Thompson, Docket No. 97-988, Issued November 1, 1999

In this decision, the claimant filed a claim on March 16, 1996 for depression, panic anxiety, and memory loss that he first realized was related to his employment on November 15, 1990. He attributed his condition to harassment by his supervisor (and a coworker), who first referred him to the Civilian Employee Assistance Program (CEAP) in 1988. He retired on November 30, 1990, but continued to work as a reemployed annuitant through January 18, 1991. The Office denied the claim as not timely filed within three years of the last exposure, or when the claimant should reasonably been aware of a relationship between his employment and his condition.

The claimant made an argument that the employer had actual knowledge of his condition, because he was referred to the CEAP in 1988. In prior decisions, the Board has noted that when a claimant seeks treatment at an employing agency health unit, the supervisor is deemed to have actual knowledge of the injury as of the date of treatment. In this instance, however, the claimant sought treatment with CEAP, which is not under control of the employing agency, and does not make treatment records available to the employer, unlike a health unit. Therefore his treatment with CEAP did not confer actual knowledge of his injury upon his supervisor. The Board affirmed the Office's decision.

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FECA CIRCULAR NO. 00-12

July 20, 2000


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

The interest rate to be assessed for the prompt payment bills is 7.25 percent for the period July 1, 2000 through December 31, 2000.

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, 2000.

Attached to this Circular is an updated listing of the 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)

PROMPT PAYMENT INTEREST RATES

7/1/00 - 12/31/00

7.25%

1/1/00 - 6/30/00

6.75%

7/1/99 - 12/31/99

6.5%

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%


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DMS INTEREST RATES

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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FECA CIRCULAR NO. 00-13

August 9, 2000


SUBJECT: DUAL BENEFITS – AUTHORIZATION AND EARNINGSINFORMATION FROM SOCIAL SECURITY ADMINISTRATION

Effective immediately, Forms CA-936 and CA-1036 are obsolete. Their use is replaced by new Form SSA-581, which is now required by the Social Security Administration for use in obtaining social security detailed earnings information. Form CA-935 has been revised to accommodate the use of this form. A copy of the revised CA-935 and new SSA-581 are attached for your reference.

The system will automatically enter the claimant's name, Social Security Number, Date of Birth, Date of Death (if applicable), the claims examiner's telephone and FAX numbers, and the claimant's address, telephone number and Social Security Number. As is currently done with Form CA-936, the claims examiner then enters the period requested and forwards 2 copies of the SSA-581 to the claimant. The claimant then makes any necessary corrections and signs and dates both copies of the SSA-581. Upon receipt of the two signed forms, the claims examiner then forwards one copy to the Social Security Administration, and retains the other copy in the case file, as is currently done with Form CA-1036.

There is no change in procedures. The only change is that the SSA-581 replaces both the CA-936 and CA-1036.

This form is not used for requests for SSA FERS dual benefits. For these requests, continue to use the FERS SSA Dual Benefits Calculations FAX Transmittal.

 

DEBORAH B. SANFORD
Acting 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)

 

Dear CLAIMANT NAME:

This is a request for certain information concerning any wages you may have earned during the period <01/01/1901> to <01/01/1901>.

Therefore, please do the following:

1. Review the information that is pre-printed on the two copies of Form SSA-581 enclosed. Correct any preprinted information by drawing a line through the incorrect information and writing the correct information above it. Be sure to correct both copies of the form.

2. Add any other last name ever used by you or the deceased (if applicable) on the appropriate line on both copies of the form.

3. Sign and date both copies of the form.

4. Please return BOTH copies of the completed form to the OWCP District Office address noted at the top right side of the form within 30 days. DO NOT SEND THE FORMS TO THE SOCIAL SECURITY ADMINISTRATION.

Sincerely,

NAME OF SIGNER
TITLE

Enclosure: SSA-58
Attachment Form SSA-581

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FECA CIRCULAR NO. 99-01

October 12, 1998


SUBJECT: Reconsiderations - Correct Appeal Rights

It has come to our attention that full appeal rights are being issued with a certain number of merit reconsideration decisions.

As stated in FECA Procedure Manual Chapter 2-1602.8c, a claimant who receives a merit decision on reconsideration is entitled to review by the Employees' Compensation Appeals Board or to another reconsideration, but not to a hearing. When the right to a hearing is included in the description of appeal rights, and the claimant requests a hearing, the Branch of Hearings and Review must honor the request even if the "right" was included in error. This results in an additional and unwarranted workload for the Branch of Hearings and Review.

Senior Claims Examiners are reminded to ensure that proper appeal rights are appended to reconsideration decisions.

 

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 CIRCULAR NO. 99-02

November 18, 1998


SUBJECT: DUAL BENEFITS – FERS COLA

Effective December 1, 1998, Social Security Benefits will increase by 1.3%. 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 6, 1998. No adjustment will be made for the period December 1, 1998 through December 5, 1998.

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, 1998.

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, 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%

 

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 CIRCULAR NO. 99-03

November 20, 1998


SUBJECT: LOSS OF WAGE EARNING CAPACITY – USPS AND REASSIGNMENT TO PART TIME FLEXIBLE POSITIONS

The purpose of this Circular is to acquaint claims staff with the Snow Arbitration Decision and the impact of this decision on reassignments within the Postal Service.

Sometimes, the Postal Service, in finding a position for a partially disabled employee, reassigns the injured employee to a position that is in a different craft than the position held when injured. The Snow Arbitration Decision requires the Postal Service, when placing an employee in a different craft, to follow the rules of the receiving craft, so that the placed employee does not adversely impact other current craft employees. Therefore, if there are Part Time Flexible (PTF) employees in the receiving craft, the employee must be placed in a PTF job.

The Procedure Manual at 2-814.7,a(1) states that a part-time job is not suitable employment for an employee who was full time at the time of the injury.

The Postal Service guarantees the reassigned employee 40 hours of work per week. The reassignment is therefore viewed by OWCP as a full-time position.

Also, when placing an injured worker in a PTF position in another craft, the Postal Service converts the employee at a saved rate that guarantees the employee's salary as of the date of injury. The hourly rate of pay is computed by dividing the annual salary by 2000, rather the 2080 used for full-time employees. The 80 hour difference represents the 10 Federal holidays. The employee makes more per hour to accommodate the missing holiday pay. If, in fact, the employee then works a holiday, they are paid again for the holiday. Therefore, there is no loss of wage earning capacity associated with the reassignment.

In claims where the Postal Service has reassigned a partially disabled employee, who had full time career status on the date of injury, to a position that is classified as Part Time Flexible, the claims examiner must look at the terms of the reassignment to determine whether the reassignment represents suitable employment. If the position guarantees 40 hours of work per week, it is considered a full-time position, even though it is categorized as PTF administratively. If it meets the physical requirements of the employee, it is a suitable job. If the conversion to PTF is at a saved rate of pay, there is no Loss of Wage Earning Capacity. A zero LWEC decision should be issued in these cases based upon the reassignment.

Complaints of loss of advanced annual leave, seniority, bidding rights and other privileges are not covered by the FECA and are not relevant to a decision on LWEC. These are labor management issues that should be resolved in that arena.

 

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 CIRCULAR NO. 99-04

December 24, 1998


SUBJECT: New Regulations Governing Claims under the FECA

On November 25, new regulations for claims under the FECA were published in the Federal Register. They take effect on January 4, 1999. Copies have been shipped to each district office. They will also be available in FolioVIEWS on January 4, and from the program's home page very soon thereafter.

The regulations have been completely rewritten, so all claims staff should familiarize themselves with the new organization and contents. The reasons for the substantive changes are addressed in the Preamble to the regulations themselves. A series of FECA bulletins addressing the various changes will be issued shortly.

Citations to the regulations in letters in the Forms Correspondence and Letter Generator systems are being updated to reflect the new regulations, and these changes should also be in place by January 4. While the printed version of Form CA-1032 is being revised, copies will not be available until after January 4. Copies of Form CA-1032 citing § 10.125 will be legally unenforceable after that date, and they should be discarded.

Publications CA-810, "Injury Compensation for Federal Employees," and CA-550, "Federal Injury Compensation", are also being revised.

A brief description of the major changes is as follows:

Subpart A--General Provisions

1. A description of "recurrence of medical condition" now appears (§ 10.5).

2. A new provision requires employing agencies to treat records collected in claims under the FECA, including copies of records maintained by the employing agency, as official records of OWCP (§ 10.10, § 10.11, § 10.12).

3. Provisions addressing suspension of benefits during incarceration and termination of benefits for conviction of fraud against the program now appear(§ 10.17, § 10.18).

Subpart B--Filing Notices and Claims; Submitting Evidence

1. The employer may file a notice of injury, occupational disease, or death if the employee or survivor cannot do so (§ 10.100, § 10.101, § 10.105).

2. A claim may be withdrawn before adjudication (§ 10.100, § 10.101, § 10.105).

Subpart C--Continuation of Pay

1. Use of COP must begin within 45 days after the injury. For a recurrence, use of any remaining days must begin within 45 days of the time when the employee first returned to work after the initial period of disability (§ 10.205, § 10.207).

2. The employer may terminate COP when a preliminary notice of a disciplinary action has been issued (§ 10.222).

3. The employer may obtain medical evidence only in writing, not by telephone, during the COP period (and afterward as well) § 10.506).

4. On account of separate legislation, Sunday premium pay for time not actually worked may no longer be included in COP.

Subpart D--Medical and Related Benefits

1. The employer need not issue a Form CA-16 more than one week after injury has occurred (§ 10.300). This statement has appeared in Publication CA-810, but it has not been part of the regulations previously.

2. New guidance is provided concerning medical testing for exposures to workplace hazards (§ 10.303).

3. Attendants' allowances will now be paid as medical expenses, up to $1500 per month. This method of payment will allow for better monitoring of services and accounting of costs (§ 10.314).

4. Misbehavior of a representative is considered misbehavior of a claimant, for purposes of determining whether a medical examination has been obstructed (§ 10.323).

5. OWCP may (but will not always) require an original signature on a medical report (§ 10.330).

6. Form CA-17 is to be used only for traumatic injuries, since the form is not designed for use with occupational disease cases (§ 10.331).

7. OWCP will not always require submittal of an x-ray or the report of x-ray to support a claim for subluxation of the spine (§ 10.331).

8. OWCP uses the AMA Guides for determining schedule awards; the kinds of measurements usually used to make such determinations are described (§ 10.333).

9. The claimant may be reimbursed if a provider does not refund the balance of a partially paid bill to the claimant (§ 10.337).

Subpart E--Compensation and Related Benefits

1. Maximum and minimum compensation rates do not include locality pay (§ 10.406).

2. A new section addresses concurrent receipt of compensation and separation or severance pay (§ 10.421).

3. A new section addresses elections between FECA and FERS (reduction of FECA benefits to reflect SSA entitlement due to federal service) (§ 10.421).

4. The detailed material concerning representative payees has been condensed to one paragraph. Specific procedures will be added to the Procedure Manual.

5. Although the proposed regulations excluded any mention of leave buy-back, a brief paragraph which recognizes this kind of transaction has been added to the final rule (§ 10.425).

6. Language addressing how claimants are put on notice of an overpayment has been made more specific. The existence of EFT payments is also recognized (§ 10.430).

7. The manner in which OWCP applies the "against equity and good conscience" test for waiver of an overpayment is revised to correct an inadvertent error in the 1987 regulations (§ 10.437).

Subpart F--Continuing Benefits

1. A new section addresses how OWCP evaluates medical evidence (§ 10.502).

2. The new rule recognizes that the Office of Personnel Management, not OWCP, administers 5 U.S.C. 8151 (§ 10.505).

3. A new provision allows employers to contact employees at reasonable intervals to request medical reports addressing return to work (§ 10.506).

4. A new provision addresses reductions-in-force (RIFs) of employees performing light-duty work. Loss of a job in this way is not considered a recurrence of disability (§ 10.509).

5. A job must be classified for a formal rating to be done (§ 10.509).

6. OWCP nurse services are now included in the definition of vocational rehabilitation services, and sanctions may be applied for refusal to cooperate (§ 10.518).

8. A new section addresses volunteer activities (§ 10.526).

9. Computer matching may be used to verify reports of earnings (§ 10.527).

Subpart G--Appeals Process

1. The claimant cannot request review on the Director's own motion (§ 10.610).

2. Subpoenas are only to be issued in connection with a hearing, and only as a last resort (§ 10.619).

3. A Hearing Representative may deny a claimant's request that an employing agency representative testify, if the testimony would not be relevant or the employing agency representative does not have the information in question (§ 10.621).

4. Postponement of an oral hearing must be requested before the hearing is scheduled; otherwise, it may be requested only for non-elective hospitalization or death of immediate family member (§ 10.622).

Subpart H--Special Provisions

1. Federal employees may serve as representatives only under certain limited circumstances (§ 10.701).

2. The standards for review of representatives' fees have been streamlined. Where a claimant does not dispute the amount of the fee, OWCP will deem it approved (§ 10.703).

3. The rules for third-party claims more fully interpret and clarify the duties of FECA claimants and their counsel pursuant to sections 8131 and 8132 of the FECA (§ 10.704 to § 10.719).

Subpart I--Information for Medical Providers

1. OWCP's medical fee schedule has been expanded to include pharmacy and inpatient hospital bills (§ 10.809, § 10.810).

After you have received and studied the various bulletins addressing these changes in more detail, you may have further questions. They should be referred to the National Office through a manager or supervisor in your office.

 

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 CIRCULAR NO. 99-05

January 6, 1999


SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE, 1997

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

Several decisions which deal with performance of duty/compensable employment factors are included. Four decisions which address refusal/abandonment of suitable employment are also summarized. Additional topics included in the summaries are schedule awards and impartial examiners.

Two decisions are included in their entirety. The first, Kenneth H. Wiggins, Docket No. 95-1581, issued June 5, 1997, deals with recurrence of disability claimed after a loss of wage-earning capacity determination had been made. The second, Amit Mashall, Docket No. 95-1224, issued April 28, 1997, addresses termination of compensation on the basis of "prophylactic restrictions."

 

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)

 

IMPARTIAL EXAMINATIONS - BOARD CERTIFICATION

Charles M. David, Docket No. 95-1239, Issued June 12, 1997

In this claim, a conflict of opinion was found to exist between the claimant's treating physician, a Board-certified internist, and a second opinion physician, a Board-certified orthopedic surgeon, concerning whether the claimant continued to suffer from a disabling knee condition. To resolve the conflict, the claimant was referred to a physician who was not Board-certified for an impartial examination. The Office found that this impartial physician's report constituted the weight of the medical evidence and terminated compensation. The Office's decision was affirmed by a hearing representative, who also found that the impartial examiner's opinion was entitled to special weight.

The Board found that the office had not met its burden of proof to terminate benefits. They quoted Chapter 3.500.4(b) of the Federal (FECA) Procedure Manual, wherein it is stated, "The services of all available and qualified Board-certified specialists will be used as far as possible to eliminate any inference of bias or partiality." Because the selected impartial physician was not Board-certified, the Board found that he could not be considered as an impartial specialist whose report was entitled to special weight, and the Office's decisions dated October 19, 1993 and September 20, 1994 were reversed.

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PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT

Joseph F. Coyle, Docket No. 95-1465, Issued April 18, 1997
Ellis Jones, Jr., Docket No. 95-1810, Issued June 13, 1997
Ronald B. Sheckler, Docket No. 95-1144, Issued June 25, 1997
Ruby B. Kendall, Docket No. 95-1991, Issued June 2, 1997
Diane Smith, Docket No, 95-2039, Issued May 23, 1997
Rosemary M. Wasem, Docket No. 95-1420, Issued May 21, 1997
Gregory S. Lammers, Docket No. 95-1482, Issued June 3, 1997
Gareth D. Allen, Docket No. 95-1184, Issued April 15, 1997

A number of interesting decisions were issued by the Board during this quarter which concerned emotional conditions allegedly due to various compensable and non-compensable factors of employment.

In Coyle, the claimant, a letter-sorting machine clerk, attributed his "nervousness, muscle spasms, tension headaches, nausea, diarrhea, confusion, disorientation, sleeplessness and depression" to the high noise levels he encountered while working. He stated that the music played on the public address system was loud, that individual workers also played their personal radios loudly at times, and that they also engaged in loud yelling, singing, and noise making. He complained about the noise to managers on several occasions. Sometimes corrective actions were taken, and other times they were not. The Office denied the claim after requesting additional medical and factual information, on the basis that the claimant did not establish that he had sustained an injury as alleged. The claimant subsequently requested reconsideration and submitted a more detailed statement of the employment factors which he believed caused his condition. Modification of the prior decision was denied. The claimant again requested reconsideration and submitted a medical report from a psychologist, which supported the claim with some rationale. Modification of the prior decisions was again denied. The accompanying memorandum stated that the Office accepted as factual that the claimant's supervisor took appropriate steps to control the noise from the radio and coworkers, and that the incidents therefore did not occur in the performance of duty.

The Board found that the case was not in posture for decision. They stated that everyday noise encountered as part of a claimant's regular and assigned duties would constitute a compensable employment factor. The claimant submitted evidence to support that he was exposed to noise during his employment, which was supported by a medical officer having offered him noise-reduction devices, and by his supervisor having agreed that noise in the workplace was a problem. The case was remanded to the district office for preparation of a statement of accepted facts and referral to an appropriate medical specialist.

In Jones, the claimant alleged that he developed stress when he was transferred from his job as a safety specialist to a new job as a mail processing supervisor. He stated that his working hours changed, he did not know how to adjust to his new life, he was being forced to retire, he lacked the experience to perform the duties of the new job, and he received inadequate training for the new job. He submitted medical evidence from a Board-certified specialist that detailed the recent job transfers, and stated that without sufficient notice, he had been put in a job he could not perform adequately, which had led to diminished confidence, fear, insecurity, suspicion, and paranoia. The Office denied the claim on the basis that the evidence failed to establish that an injury was sustained. They found that some [compensable] employment factors occurred, without specifying those employment factors, but that a medical condition resulting from those factors was not demonstrated by the evidence of record.

The Board remanded the case for creation of a statement of accepted facts to include delineation of compensable and non-compensable employment factors. The attending physician was to be provided with the SOAF and asked to provide an opinion on causal relationship, after which further necessary development was to take place. The Board noted that stress attributed to the change in his work schedule and his inability to perform the new job would be compensable, while stress due to perceived fear of losing his job or being forced into retirement, or from the transfer itself (absent any evidence of error or abuse on the agency's part in making the transfer) would not be compensable. The Office is responsible for making a findings of fact concerning compensable and non-compensable employment factors.

The claimant in Sheckler was an industrial engineer who claimed that his depression was due to ongoing investigations by the CIA and the FBI, as well as other work factors. The Office denied the claim on the basis that he did not establish that he sustained an emotional condition in the performance of duty. A hearing representative affirmed the Office's decision, finding that the claimant failed to establish any compensable factors of employment. The Board remanded the case for the Office to make a findings of fact on all of the alleged factors, write a SOAF, and refer the claimant for examination by an appropriate medical specialist. In evaluating factors of employment, the Board found that the following events were not compensable employment factors: alleged employer harassment due to arrangements having been made for him to meet the man who had previously investigated him (for time and attendance violations) on his first day at a new job (the employer stated the meeting was purely coincidental); alleged employer harassment due to a "spy" having been sent to overhear a private telephone conversation (the employer denied this allegation); poor management at the employing establishment and the claimant's overqualification for his position (these relate to the claimant's frustration at not being permitted to work in a particular environment); a letter of reprimand for putting up union signs and a suspension for statements he made regarding a superior (these involve the administration of personnel matters, and there was no evidence of employer error or abuse); and investigation for time and attendance matters (no evidence of employer error or abuse). They found that investigation of the claimant for alleged computer theft did constitute a compensable factor of employment, because the claimant's position required him to transport computer hardware and software, and in performing these duties he had twice been stopped by security and had his car searched. The Board also directed the Office to make findings regarding the allegations that the employer did not provide the claimant with the proper licensing for his computer software, adequate software to perform his work, or appropriate manuals for the software, where the evidence of record was contradictory.

In Kendall, the claimant attributed her illness to a coworker's having spread a rumor that she was suffering from a serious medical condition. She overheard this coworker and another coworker talking about her condition on the workroom floor. The Office denied the case, finding that the subject of the alleged harassment was not a result of the day-to-day work activities, a special assignment, or a requirement imposed by the employment, or by the nature of the claimant's work, but rather, was personal in nature, and therefore did not arise in and out of the course of employment. The Board remanded the case for further factual development, stating:

To the extent that disputes and incidents alleged as constituting harassment by coworkers are established as occurring and arising from appellant's performance of his regular duties, these could constitute employment factors. Even if the subject of the alleged harassment is personal in nature rather than work related, this is not dispositive of its connection to work. Even if the alleged harassment arose from a nonwork topic, the Board has held that such matters may be compensable if the employment brought appellant and the coworker together and created the conditions which resulted in the harassment. There is no evidence that appellant and her coworker had any relationship outside of the one at work. Their work brought them together and created the conditions that resulted in the alleged harassment.

In Smith, the claimant alleged stress caused by an incident with a coworker. While she was on break, the coworker who relieved her received a telephone call from her husband, but did not have her paged. When she returned from her break and found out what had happened, she said that in the future, she should be paged when she received a telephone call. The coworker then began to speak loudly and abusively toward her. The Office denied the claim on the basis that the incident did not arise in the performance of duty. The Board remanded the case for creation of a SOAF and development of the medical evidence. They stated that the claimant's description of the incident was supported by statements from two supervisors, and that given the nature of the verbal altercation, the claimant's perception could not be considered self-generated. Although the incident did not bear directly upon the claimant's regular assigned duties, it was not imported into the work due to a relationship outside the workplace, and bore sufficient relationship to the employment to afford coverage.

In contrast to Smith, in Wasem, the claimant also alleged stress due to incidents with coworkers, but with a different outcome. While having a conversation with a coworker, another coworker asked whether it was the first coworker's wife's "time of the month." The claimant asked the second coworker what he meant by the remark, to which he responded, "don't worry about it, you know what I mean, unless it's your time of the month." The claimant stated that she was humiliated by this remark. Later that day she overheard another coworker arguing with her supervisor and a union steward about whether she should be sent out on the street, and her light duty status. She told her supervisor that she was upset over the comments she had overheard, and both he and the union steward attempted to calm her down. She left work shortly thereafter. The Office denied the claim, finding that with respect to the first incident, the comments directed to her were not made as a threat, as harassment, or in a sexually abusive manner, and that with respect to the second incident, the supervisor took immediate action to control the coworker's profanity and tone of voice, and therefore there were no compensable factors of employment. Modification was denied in a subsequent reconsideration, on the basis that there was no evidence to support the allegation of harassment. The Board affirmed the Office's decisions, finding that neither incident constituted harassment.

In Lammers, the claimant alleged psychological stress due to the employer's requirement that he wear a uniform made of synthetic fibers, which was against his personal health and safety standards. The Office denied the claim on the grounds that the claimant failed to establish an emotional condition in the performance of duty. The Board affirmed the decision. They found that the employer's requirement that he wear a certain uniform did not relate to the duties the claimant was hired to perform, but rather was an administrative or personnel matter, and non-compensable. The claimant did not establish error or abuse on the part of the employer in administering this requirement.

The Allen decision involved rescinding a previous acceptance, based upon new legal argument. The claim was accepted for an adjustment disorder due to the claimant having worked in remote areas as far as 1000 miles from family and friends. A hearing representative rescinded the acceptance, stating that the location of the work, not the work itself caused the disability, and that this represented a desire to work in a particular environment, which is not compensable. The Board found that the Office had not met its burden of proof to rescind the acceptance, and reversed the decision. They agreed that an emotional reaction resulting from a desire to work in a different environment or at a different job does not constitute a personal injury in the performance of duty, and that an emotional reaction due to separation from one's family and friends does not arise in the performance of duty. In this case, however, the claimant also implicated the dormitory situations and the surrounding environment of the remote assignments, which reminded him of his past imprisonment. Assignment to the remote areas itself is not a compensable work factor, but the working conditions of the assignment can be compensable.

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REFUSAL/ABANDONMENT OF SUITABLE EMPLOYMENT

Gail Barrick, Docket No. 95-1183, Issued April 18, 1997
Robert W. Velon, Docket No. 95-864, Issued May 16, 1997
Leonard W. Larson, Docket No. 95-1102, Issued May 12,1997
Robert M. O'Donnell, Docket No. 95-795, Issued June 20, 1997

Several decisions by the Board this quarter involved cases in which the Office invoked the provisions of section 8106[c](2) of the FECA, whereby: "A partially disabled employee who€ (2) refuses or neglects to work after suitable work is offered€ is not entitled to compensation."

In Barrick, the claim was accepted for bilateral carpal tunnel syndrome. Her physician, a Board-certified orthopedic surgeon, released her for light work following surgery, and approved a light duty position offered by her employer, but said that it would be in the claimant's best interest to work from 6:30 am to 3:00 pm so that she could be driven to work, since she was no longer able to drive herself to work. The employer stated that the job was not available during hours specified by the attending physician. The claimant was notified that the job was found to be suitable, and that she would be reimbursed for round-trip transportation to the job, by either taxi or public transportation. The claimant requested a hearing, and forwarded a medical report from another physician, a Board-certified family practitioner, which stated that the claimant could not tolerate the night shift because it caused a lack of sleep which exacerbated her medical condition. The claimant accepted the job offer on the condition that she could work the day shift. She requested in writing that she be placed in a clerk position which she had formerly held. The request for hearing was denied, as no final decision had been issued. The employer advised the office that the clerk position did not exist for the claimant, and that even if it did, it would involve extensive use of both hands, which was prohibited by her physicians. The claimant was informed that the second physician's note was not sufficient to support that she was unable to perform the offered job. The Office reiterated that the job was suitable, and that reimbursement for transportation would be provided, and was given 15 days to respond to the offer or benefits would be terminated. The claimant responded that her physicians recommended the day shift. The Office terminated benefits, finding that the claimant had refused suitable work. The claimant returned to work for a few days, then filed a new claim for occupational disease and stopped working. The office stated that the new claim would be treated as a recurrence of the old claim. A hearing was requested, and Office's decision was affirmed. The Board also affirmed the office's termination of benefits, finding that the evidence supported the suitability of the job, and that the family physician's opinion that working at night would aggravate the claimant's condition was not sufficiently rationalized. The Board also noted that the new claim had not been adjudicated, and that the Office should undertake development of that claim.

In both Velon and Larson, the Office's termination of benefits for refusing suitable employment was deemed improper by the Board because the offered positions were temporary. In Velon, the claimant was offered an office clerk position that was being made available through temporary Pipeline funding for a period of one year to eighteen months. The employer stated that their goal would be to place the employee in a permanent position as one became available. The claimant refused the job on the basis that it was temporary, and because he wished to continue vocational rehabilitation. The Office terminated benefits because he refused an offer of suitable work. The Board reversed the decision, finding that the job was unsuitable because it was temporary, and the claimant was a permanent employee at the time of injury. In Larson, the claimant was a respiratory therapist who was offered a temporary position as a medical service administrative support person. The claimant objected to offered job for several reasons, including the fact that it was temporary or unfunded. The agency stated that they would look for a permanent position. The Office found the job suitable, and terminated benefits. The Board found that the job offered was not suitable because it was temporary, and the claimant was a permanent employee.

The situation in O'Donnell is somewhat different, in that it involves termination of benefits for abandonment of suitable work, rather than refusal of suitable employment. The claimant had returned to light-duty work as a clerk on March 2, 1993. The Office determined his loss of wage-earning capacity based upon his earnings as a clerk on May 11, 1993. After that, the claimant filed claims for recurrences of disability for the periods March 21 through April 6, 1993, and May 14, 1993 and continuing. These recurrence claims were denied. In the meanwhile, the claimant was discharged from his employment on September 3, 1993, based upon his absence from work. By decision dated January 11, 1994, the Office terminated his compensation for loss of wage-earning capacity on the basis that he was terminated from his employment for cause, and thus has abandoned suitable work under 5 U.S.C. 8106. The Board found that the Office had properly terminated compensation for wage loss, because the medical evidence did not support that he was unable to perform his light-duty work.

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SCHEDULE AWARD - FECA BULLETIN 95-17

Marguerita B. Younger, Docket No. 95-1892, Issued June 10, 1997

In this case, a claim was made for a schedule award due to impairment of the right lower extremity due to a knee condition. The claimant's treating physician stated that the claimant had 40 percent impairment of the knee, based upon the 4th edition of the AMA Guides. An office medical adviser found on March 4, 1995 that the claimant had 12 percent impairment of the knee. He based this figure on AMA Guides, page 78, Table 41, and page 85, Table 64. The Office made an award for 12 percent impairment of the right lower extremity, based upon the office medical adviser's opinion.

The Board remanded the case for further clarification by the office medical adviser. In doing so, they noted that FECA Bulletin 95-17, issued March 23, 1995, stated that certain tables in Chapter 3 of the AMA Guides could not be used together because such usage would lead to "overlapping applications, leading to percentages which greatly overstated the impairment." Tables 41 and 64 were specifically noted as examples of tables that should not be used together. The office medical adviser used those tables in arriving at the 12 percent impairment, and so the Board remanded the case for the office medical adviser to clarify his or her opinion, using the appropriate tables from the Guides.

This decision by the Board is another example of the extreme care that must be taken when assessing the degree of permanent impairment for schedule award purposes. It is noted that in this instance, the office medical adviser's opinion predated the issuance of the relevant FECA Bulletin. However, in any case where the treating physician's percentage of impairment is higher than that of an office reviewer's, an award based upon the lower percentage must be well-supported, inasmuch as there is a high likelihood of an appeal.

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SCHEDULE AWARD - PAY RATE WHEN EXPOSURE CONTINUES

Barbara A. Dunnavant, Docket No. 97-58, Issued May 14, 1997

The accepted conditions in this case were aggravation of right and left carpal tunnel syndrome, due to occupational disease. The claimant was disabled for work November 9-24, 1993, when she was off work for a surgical right carpal tunnel release. She used leave for the time she was off from work, but did not claim a leave buy-back.

On June 28, 1994, the claimant's treating physician reported that she had reached maximum medical improvement, and that she had a 20 percent impairment of the right upper extremity. On March 10, 1995, the physician indicated that she had a 15 percent impairment of the left upper extremity. On May 31, 1995, the Office awarded the claimant 20 percent impairment of the right upper extemity and 15 percent impairment of the left upper extremity, and used the claimant's rate of pay as of the date disability began, November 9, 1993, to compute the award. A later Hearings and Review decision increased the award for the left upper extremity to 21 percent, and affirmed the rate of pay used for the calculation of the award.

On appeal, the claimant did not contest the degree of disability awarded, but contended that since she was exposed to work factors until the award was issued, her award should be paid based upon the rate of pay in effect when the award was issued, which would be the "date of injury." The Office maintained that if there is no disability, the pay rate should be calculated using the date of injury, and that if there is a period of disability, the pay rate should be calculated using the rate in effect when disability began, without further consideration of the date of injury rate of pay.

The Board cited Section 8101(4) of the Act, which defines "monthly pay" as:

The monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than six months after the injured employee resumes regular full-time employment with the United States, whichever is greater€

In schedule award claims for injuries that occur over a period of time, the Office must determine the date of last exposure to injurious work factors, as well as the date of the medical evaluation which is used to document the degree of permanent impairment. In this case, the claimant continued to be exposed to injurious work factors well after her brief period of disability, as well as up to and after the date when she was examined for schedule award purposes. The Board found that the office erred in using the pay rate in effect when disability began, without considering her additional exposure to injurious work factors after that date. The additional exposure is considered to be part of the injury, and so the "date of injury", for purposes of determining pay rate, is after the date of disability. The Office did not consider whether the "date of injury" rate of pay was greater than the "date of disability" rate of pay.

With respect to the claimant's position that the rate of pay in effect as of the date the schedule award was issued should be used, the Board found that the "date of injury" would be the date of last exposure prior to the medical evaluation upon which the award was based. If the claimant claims further impairment due to additional exposure after the medical evaluation, a claim for an increased award should be filed.

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FECA CIRCULAR NO. 99-06

January 6, 1999


SUBJECT: SELECTED ECAB DECISIONS FOR JULY - SEPTEMBER, 1997

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

The subjects addressed include: case doubling, forfeiture of compensation due to failure to report earnings, performance of duty (factors of employment and premises issues), timeliness of reconsideration requests (one in which application of the mailbox rule to the claimant was considered), changes in shift causing recurrence, refusal/abandonment of suitable employment, and timeliness in occupational disease claims.

 

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)

 

CASE DOUBLING

James C. Small, Docket No. 95-2716, Issued September 24, 1997

In this case, the claimant alleged that weakness in his legs caused his left knee to buckle. No medical evidence was submitted, and the claim was denied. An oral hearing was conducted, during which the claimant testified that he had a prior injury which was accepted by the office, and for which he received schedule awards for both legs. Medical evidence was also submitted which was supportive of the claim, but not sufficient to meet the claimant's burden of proof. The hearing representative affirmed the Office's denial.

The Board found that given the absence of opposing medical evidence, further development of the record was needed. They remanded the case for doubling with the prior injury case, in accordance with FECA Bulletin No. 97-10, preparation of a statement of accepted facts, and referral to an appropriate Board-certified medical specialist for evaluation.

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FORFEITURE OF COMPENSATION - FAILURE TO REPORT EARNINGS

Ruth Moreno Rios, Docket No. 94-1977, Issued July 14, 1997

This case is interesting because of the unusual circumstances involved. Forfeiture of compensation was declared for the period July 7, 1987 through February 1991 due to failure to report earnings. The claimant was found to be at fault in the creation of the resulting overpayment, on the basis that she had knowingly failed to report earnings on forms CA-1032 covering the period of time.

The claimant had worked using two different names and social security numbers. Medical evidence dated July 24, 1990 from her attending Board-certified psychiatrist indicated that the claimant suffered from a form of mental illness in which two personalities were present, each using a different name. The claimant was totally divorced from one personality when she was in the other, and could not remember anything about the other personality.

The Board found that the Office did not establish that the claimant knowingly omitted earnings for a portion of the period that was declared subject to forfeiture. During one of the reporting periods covered by the CA-1032 forms, the claimant was suffering from two personalities, and therefore, a finding that she had "knowingly" omitted earnings could not be made for that period of time. The Board did affirm that periods of time covered by CA-1032 forms signed prior to the July 24, 1990 medical report were subject to forfeiture, since the medical evidence did not specify when the two separate personalities began to manifest themselves.

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PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT

Ana L. Leishman, Docket No. 95-2007, Issued July 3, 1997
Earl D. Smith, Docket No. 95-2749, Issued August 13, 1997

Both of these decisions contain some interesting distinctions between compensable and non-compensable work factors in claims for emotional conditions.

In Leishman, the claimant described several incidents which she claimed caused stress on her job. The district office denied the claim on the basis of failure to establish an injury in the performance of duty. In a subsequent hearing decision, the district office decision was affirmed. The Board, however, reversed the decisions. The work factors cited included the following:

The claimant stated that her supervisor and general supervisor continuously stood close to, observed, and harassed her on a specific date, which led to a verbal altercation with her general supervisor. The supervisor responded that he watched employees at random, and if they were not working, he approached and asked why they were not working. He stated that this had happened with the claimant, and that she argued with him in a loud voice. Several witness statements were submitted which supported the claimant's position that she was unfairly watched and badgered in a hostile manner while attempting to perform her job duties. The Board found that the incident was related to factors of employment.

The claimant posted a newspaper article related to postal killings on the bulletin board, on which some one wrote that she (the claimant) was next. The claimant stated that the postal inspector and supervisor to whom she reported the incident did nothing. However, statements were submitted which reflected that the postal inspector told the supervisor that the claimant just wanted to put the incident on record, and that the supervisor was prepared to give a service talk but was told by the shop steward not to have a service talk because it would alert the individual who wrote the note. The Board found that there was no evidence that the employer erred or acted abusively, and therefore this was not a compensable work factor.

The claimant did not submit support for her allegation of ongoing supervisory observation for extended periods of time, and the Board found that this was not a compensable factor of employment.

The claimant reported a verbal altercation with a co-worker, in which she was called a name but to which she responded in kind. Both she and the co-worker were reprimanded. The Board found that the incident did not arise out of the claimant's regular or specially assigned duties. She had engaged in name calling, and the agency did not err or act abusively in handling the matter, therefore, the incident did not constitute a factor of employment.

Another incident was reported in which a fellow employee made an obscene gesture. There was a history of disagreement between the claimant and this co-worker. This particular incident arose out of a disagreement between them concerning the volume of a communal radio. Since use of the radio was part of the claimant's day to day duties, the Board found that this incident was a factor of employment. The claimant stated that she was unfairly given a disciplinary action for a nosebleed. The supervisor stated that he called the claimant into his office to discuss other incidents. The Board found that that there was no evidence of employer error or abuse.

Based on the two compensable work factors noted above, and the sufficiency of the medical evidence submitted in support of the claim, the Board remanded the case for the preparation of a statement of accepted facts and referral to an appropriate medical specialist.

In Smith, the claimant was a profoundly deaf city letter carrier who claimed stress due to not receiving timely reasonable accommodations requested under the Americans with Disability Act (ADA). The claimant had been working in another (larger) postal facility, where there were other hearing impaired employees, while there were none at the new facility. The claimant requested the job transfer. During his pre-employment interview, he communicated by using a note pad, and did not request an interpreter. After he began working at the new job, he requested a translator for work-related meetings, a visual fire alarm and other visually-oriented safety devices, and a means of communicating with coworkers and supervisors at work and with the employer while he was on his delivery route. He did not have these items at his former location. He stated that communication had been good at the former location because there was another employee there who knew sign language and could act as an interpreter. It took the employer two months to get a T.D.D. translating machine, and five months for the visual safety devices to be installed, which were installed in places that the claimant could not see. He complained that other clerks would get in front of his face and wave their hands to get his attention. He also claimed that he had not received safety training, had not been trained as a carrier in his new area, or as a clerk, could not call for help when he had truck trouble, advise his employer that he was running late, or attend required meetings because he had no T.D.D. machine or interpreter.

The supervisors responded that the employee had received safety training at his former location, that he received the same clerk training as other individuals, that the T.D.D. machine and other devices had been difficult to obtain because they did not know where to get them, and difficult to install because of the need to hire a contractor and codes. They stated that they were not sure how the claimant wished to be dealt with, since all of his communication was through the shop stewards, rather than directly. They were not aware that people were getting in his face, and prior to his arrival had suggested methods other than touching should be used to get his attention. In a Step 2 Grievance Decision/Settlement, the employer agreed to provide a sign language interpreter at safety meetings, and a portable T.D.D. machine for claimant's use while he was on his route. The employer also stated that when the claimant interviewed for the job, he did not request special accommodations, and that if he had expressed his needs earlier, they would have accommodated him sooner.

The district office denied the claim, finding that the claimant's condition was not due to compensable employment factors. The Board affirmed the decision. They found that the claimant's job transfer was voluntary, and that he did not make his needs known before he started working on the new job. He had not required special accommodations in the former job. The employer met his needs after they were communicated. The time lag in providing the accommodations was due to the claimant's failure to advise his employer, rather than employer neglect. They stated that the disabling condition arose from not being permitted to work in a particular environment, which is not compensable under the Act, particularly where no advance notice of special needs was given.

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PERFORMANCE OF DUTY - ON THE PREMISES

Patrick Dunn, Docket No. 95-2319, Issued July 2, 1997
Diane Bensmiller, Docket No. 95-3108, Issued September 15, 1997

Both of these decisions deal with performance of duty issues.

In Dunn, the claimant requested and was granted leave to consult with his union representative concerning a previous work injury. After speaking with the union representative, he went to the medical records office to obtain copies of the medical reports from his prior injury, for which he had been treated at the employing establishment. He was injured as he left the medical records office. The Office rejected the claim on the basis that fact of injury was not established. Modification of the decision was also denied.

The Board found that the claimant was injured in the performance of duty. "Performance of duty" is interpreted as "arising out of and in the course of employment." When the hours and place of work of an employee are fixed, there is a strong presumption that an employee who is injured on the premises during working hours is in the performance of duty. The claimant was injured while on administrative leave, on the premises, obtaining copies of records for an accepted work-related injury. Copies of the records were needed so that the claimant could obtain treatment for the work-related injury, as the employer was no longer going to provide treatment on the premises. The Board found that this activity was reasonably incidental to his employment, and that he was therefore in the performance of duty.

In Bensmiller, the claimant was injured when she tripped on a metal post while walking in a parking lot which was adjacent to the employing establishment. In response to an Office inquiry, the employer stated that the parking lot was provided for employees, but was not owned, maintained, or controlled by the employer. They stated that parking was provided for all employees because no public transportation was available. Based on this information, the Office rescinded a prior acceptance of the claim, and found that the injury did not occur in the performance of duty, as she was not on the premises.

Following the Office's decision, the claimant sent a letter to the Office, in which she related that on the date of injury, when she attempted to park her car in the employer-owned parking lot, she was blocked due to construction, and was redirected to an adjacent (non-employer) lot. At the time she was injured, she had gone to pick up her lunch and move the car to the regular (employer) parking lot, when she tripped on a protruding post and fell.

The Board found that although the injury did not occur on the employer's premises, the facts of the case brought it into the proximity exception to the premises rule. Under the proximity rule, special circumstances may extend the industrial premises to include hazardous conditions which are proximately located to the premises. In this case, all employees were provided with parking space on the premises, but due to the special circumstances on the date of injury, the claimant was forced to use an adjacent lot, which contained a hazardous condition, the protruding post. She was in a pay status and was involved in an activity related to her employment (obtaining her lunch and moving her car to the employer's lot) when she was injured. The Board reversed the Office's decision.

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RECONSIDERATION - TIMELINESS

Linda F. Anderson, Docket No. 96-2121, Issued September 18, 1997
Maria Puente, Docket No. 95-2240, Issued July 15, 1997
Christine Marcelle, Docket No. 95-2147, Issued August 8, 1997

In Anderson, the Office denied the claimant's request for a schedule award on June 14, 1994. On June 2, 1995, a request for reconsideration and additional medical evidence was received from an attorney, who stated that he represented the claimant. On August 25, 1995, the claimant was informed that the attorney's request for reconsideration was invalid, because there was no written notification from the claimant, appointing the attorney as her representative. On January 9, 1996, the attorney again requested reconsideration, and submitted additional medical evidence, as well as written authorization from the claimant. The claimant contended that the June 2 request for reconsideration was timely, as she did not know that written notice of authorization was required.

On June 5, 1996, the Office found that the request for reconsideration was not timely (not filed within one year), and that the request did not present clear evidence of error.

The Board found that the request for reconsideration was timely, and set aside the Office's denial of reconsideration. They stated, "There is no requirement that the Office actually have the authorization in hand at the time an authorized representative acts on behalf of a claimant. The representative only needs to show that he was authorized at the time such action was undertaken."

The injury was accepted in the Puente case, but the claim of compensation for a specific period of disability was denied on April 7, 1993. In a letter dated May 7, 1993, an appeal was requested. On July 22, 1993, the claimant requested a hearing. She again requested a hearing on October 7, 1993, January 10, 1994, and December 21, 1994. On February 27, 1995, the request for a hearing was denied because it was first requested (on July 22, 1993) more than 30 days after the April 1993 decision. The Office considered the matter further in relation to the issue and denied the request because the issue could be resolved by requesting reconsideration and submitting additional evidence.

A reconsideration of the April 1993 decision was requested on March 20, 1995. The request was denied as untimely and lacking in clear evidence of error.

The Board found that the Office properly denied the request for a hearing, but improperly denied the request for reconsideration as untimely. A hearing had been requested three months after the Office's April 1993 decision. However, the denial of the hearing was not issued until February 27, 1995. The delay in addressing the request for a hearing deprived the claimant of the opportunity to make a timely request for reconsideration. The case was remanded for a de novo decision on the issue of disability for the period that was previously denied, so as to protect the claimant's rights of appeal.

In Marcelle, a claim was filed for stress due to harassment on the job, which was denied on June 1, 1993 for failure to establish injury in the performance of duty. On February 3, 1994, a hearing representative affirmed the district office's decision, and instructed the claimant to direct any request for reconsideration to the district office in Jacksonville, Florida.

In a February 9, 1995 letter, addressed to the Washington, D.C. office and received on March 6, 1995, the claimant stated that she was still waiting for a response to her letter dated April 20, 1994, in which she requested reconsideration. On May 9, 1995, the Office rejected her claim for reconsideration as untimely, and found that it did not establish clear evidence of error. They stated that there was no evidence that the April 20, 1994 letter was actually received in either the Washington, D.C. or Jacksonville offices within one year of the last merit decision in the case, which was issued on February 3, 1994.

The Board considered whether the mailbox rule was applicable in this case. Under this rule, a letter mailed in the ordinary course of business is presumed to have been received. The rule can be applied to communications sent both to and from the Office. However, the rule cannot be invoked unless the sender can show that mail is sent consistently in the course of business. The claimant in this case did not present evidence that she routinely sends correspondence in the course of business, therefore the mailbox rule could not be applied. The Board agreed that the request for reconsideration was not timely, and affirmed the Office's decision.

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RECURRENCE - CHANGE IN SHIFT

Fallon Bush, Docket No. 95-2237, Issued July 15, 1997

This claim was accepted for aggravation of arthritis of the left hip, and hip replacement surgery. The office paid compensation for total disability until the claimant returned to light duty work. Shortly after returning to work, the claimant was changed to a daytime shift on the recommendation of his physician, who stated that his arthritic condition was worse later in the day. The claimant continued to work for 20 months, until he was reassigned to an evening shift. He stopped working and filed a claim for total disability, which was denied by the Office.

The Board found that when an employee on light duty stops working, they must show a change in the nature and extent of disability, or a change in the light-duty job requirements. In this instance, the requirements of the job (that he work an evening shift rather than a daytime shift) had changed so that they were no longer within the restrictions specified by his physician. The Board reversed the Office's decision and remanded the case for payment of compensation.

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REFUSAL/ABANDONMENT OF SUITABLE EMPLOYMENT

Sandra J. Corson, Docket No. 95-1933, Issued July 2, 1998

In this case, benefits were terminated by the Office on the basis of Section 8106 (c)(2) of the Act.

The claimant was offered a temporary, light-duty nursing job, for five hours per day. The restrictions of the job were in accordance with those recommended by a second opinion specialist and agreed to by the claimant's own attending physician. The claimant was advised by the Office that the job was suitable, and that she had 30 days to accept the job, or provide reasons for refusing it. She was advised that if she failed to accept the position, her reasons for refusing the job would be considered prior to determining whether the reasons for refusal were justified. She was also advised that a claimant who refused an offer of suitable work was not entitled to compensation.

The claimant returned to work, but stated that her left leg was giving out and was causing her to fall. She stopped working that same day. She completed the job offer form by refusing the job, stating that she had a tendency to fall and was at risk for further injury.

The Office advised the claimant that the light-duty job remained suitable and available. The Office did not indicate that it had considered her reasons for refusing the job, and did not advise her whether her reasons for refusal were accepted or rejected. She was given an additional 15 days to report to work or provide additional evidence.

The claimant responded by reiterating that she had refused the job due to left sciatica, and that she was unable to provide additional medical evidence because she had been discharged from treatment by her former physician, and had been unable to locate a new physician.

The Office terminated compensation benefits on the basis of refusing suitable work, and stated that no evidence had been received in response to the job offer. The Office did not advise the claimant that her work stoppage (on the day she returned) was unjustified, did not consider her explanation of why she stopped work, and did not explain why her work stoppage was unjustified. The Board reversed the Office's decision. In doing so, they reiterated the concept that a claimant has a property interest in not having benefits terminated, and a vested interest in not being coerced into accepting a job which may worsen his or her condition. To ensure regularity and impartiality, the Office must not only inform the claimant of the penalty provisions of 5 U.S.C. 8106(c)(2), but must inform him or her that the job is suitable, the consequences of refusing the job, and allow a reasonable period of time for them to accept the job or provide reasons for refusing it. If the claimant provides reasons for refusing a job, the Office must consider those reasons and inform the claimant whether the reasons are accepted or rejected.

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TIMELINESS - OCCUPATIONAL DISEASE CLAIM

George W. Blackmon, Docket No. 95-1872, Issued July 9, 1997

On February 3, 1993, an occupational disease claim was filed for hypertension, coronary artery disease, and stroke. The claimant stated that he first became aware of the conditions on January 17, 1990, and was first aware that the conditions were work-related on February 1, 1993. The claimant had been diagnosed with hypertension as early as 1973. His last exposure to the work factors that were thought to have contributed to the condition was no later than January 31, 1990. He was off from work for diagnostic testing and coronary bypass surgery from January 3 through May 16, 1990, and returned to limited duty. The office denied the claim on the basis that it was not timely filed, stating that he should have been aware that the condition was work-related on January 16, 1990, when he was given the results of diagnostic tests, but did not file a claim for more than three years.

A hearing was requested. The claimant stated that he did not immediately relate his chest pain to his work because he was more concerned with the condition itself than with the cause. The hearing representative affirmed the Office's decision.

The claimant requested reconsideration. He stated that the physician who treated him in 1990 had indicated that his job was not a factor, and submitted reports from 1990 in which the physician indicated that the conditions were not caused or aggravated by employment activity. The claimant stated that he did not realize that his condition was work-related until another physician so informed him on February 1, 1993. Modification of the prior decision was denied. The claimant again requested reconsideration, and submitted a note from his original physician which stated that he had advised the claimant in 1990 that the conditions were not work-related. Modification was again denied.

The Board found that the claim was timely filed. The three-year period for filing a claim did not begin to run until February 1, 1993, when the claimant was first advised that his condition was work-related.

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FECA CIRCULAR NO. 99-07

January 7, 1999


SUBJECT: Code changes for the Departments of the Air Force, Army, Defense, Transportation, Treasury, and Veterans Affairs, and the U.S. Postal Service and the Federal Judiciary, 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 the Air Force, new codes have been added to reflect the establishment of the Air Force Research Laboratory and the Air Force Services Agency. For the Department of the Army, new code 3893 has been added for the National Guard to reflect coverage for the National Guard Youth Challenge Program. For the Department of Defense, several agencies, including the Defense Special Weapons Agency, have combined to form the Defense Threat Reduction Agency, and chargeback code 3004 (formerly assigned to the Defense Special Weapons Agency) is now assigned to this new agency. Certain printing functions have also been assigned to the Defense Logistics Agency, and chargeback code 3034 will henceforth be used for employees of the Defense Automated Printing Service. For the Department of Transportation, a new chargeback code has been added to reflect injuries sustained by cadets at the State Maritime Academies, coverage noted in Chapter 2-0802.18 of the FECA Procedure Manual. For the Department of the Treasury, chargeback code 2150 has been expanded to include not only IRS National Office employees but also employees of IRS Computer Centers in Martinsburg, WV and Detroit, MI and IRS Service Centers in 10 separate cities. For the Department of Veterans Affairs, 4 new codes have been added to reflect injuries reported by employees of newly created offices, and name changes for 2 VA facilities in Indiana have been made. For the U.S. Postal Service, a previously existing code has been changed to reflect injuries reported by employees of the newly created Office of the Inspector General, an organization separate from the Postal Inspection Service. Finally, in the Federal Judiciary, two new chargeback codes has been added to reflect coverage under FECA beginning in October, 1997 for employees of the D.C. Superior Court (code 1370) and the D.C. Court of Appeals (code 1371).

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

_________________________________________________________________

Trans-action
type

Code

Dept.

Agency

 

 

 

 

Add

3773

Air Force

Air Force Research Laboratory (AFRL)

" "

3774

" "

Air Force Services Agency (AFSVA)

 

 

 

 

Add

3893

Army

Natl Guard Youth Challenge Program

 

 

 

 

Add

2535

DOT

State Maritime Academy Cadets

 

 

 

 

Add

4508

VA

Chief Information Officer

" "

4522

" "

Office of Resolution Management

" "

4523

" "

Office of Employee Education

" "

4524

" "

Health Eligibility Center

 

 

 

 

Add

1370

Fed Judic

D.C. Superior Court

" "

1371

""

D.C. Court of Appeals

 

 

 

 

Change

3004

Defense

from: Defense Special Weapons Agency
to: Defense Threat Reduction Agency

 

 

 

 

" "

3034

" "

from: Defense Subsistence Supply Center
to: Defense Automated Printing Service

 

 

 

 

Change

2150

Treasury

from: IRS National Office, Washington, D.C.
to: IRS National Office and Service Centers [Includes the Martinsburg, WV and Detroit, MI Computer Centers, and IRS S