DEPARTMENT OF LABOR

 

Office of Workers’ Compensation Programs

 

20 CFR Part 30

 

SUBCHAPTER C—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000

 

PART 30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES

OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

 

Subpart A—General Provisions

 

Introduction

 

Sec.

30.0   What are the provisions of EEOICPA, in general?

30.1   What rules govern the administration of EEOICPA and this chapter?

30.2   In general, how have the tasks associated with the administration of the EEOICPA claims process been assigned?

30.3   What do these regulations contain?

 

Definitions

 

30.5   What are the definitions used in this part?

 

Information in Program Records

 

30.10   Are all OWCP records relating to claims filed under EEOICPA considered confidential?

30.11   Who maintains custody and control of claim records?

30.12   What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?

 

Rights and Penalties

 

30.15   May EEOICPA benefits be assigned, transferred or garnished?

30.16   What penalties may be imposed in connection with a claim under the Act?

30.17   Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?

 


 

Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims

 

Filing Claims for Benefits Under EEOICPA

 

30.100   In general, how does an employee file an initial claim for benefits?

30.101   In general, how is a survivor’s claim filed?

30.102   In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?

30.103   How does a claimant make sure that OWCP has the evidence necessary to process the claim?

 

Verification of Alleged Employment

 

30.105   What must DOE do after an employee or survivor files a claim?

30.106   Can OWCP request employment verification from other sources?

 

Evidence and Burden of Proof

 

30.110   Who is entitled to compensation under the Act?

30.111   What is the claimant’s responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?

30.112   What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?

30.113   What are the requirements for written medical documentation, contemporaneous records, and other records or documents?

30.114   What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?

 

Special Procedures for Certain Radiogenic Cancer Claims

 

30.115   For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?

 

Subpart C--Eligibility Criteria

 

General Provisions

 

30.200   What is the scope of this subpart?

 

Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA

 

30.205   What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B?

30.206   How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?

30.207   How does a claimant prove a diagnosis of a beryllium disease covered under Part B?

 

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA

 

30.210   What are the criteria for eligibility for benefits relating to radiogenic cancer?

30.211   How does a claimant establish that the employee has or had contracted cancer?

30.212   How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility?

30.213   How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility?

30.214   How does a claimant establish that the employee is a member of the Special Exposure Cohort?

30.215   How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?

 

Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA

 

30.220   What are the criteria for eligibility for benefits relating to chronic silicosis?

30.221   How does a claimant prove exposure to silica in the performance of duty?

30.222   How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease?

 

Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA

 

30.225   What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees?

30.226   How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease?

 

Eligibility Criteria for Other Claims Under Part E of EEOICPA

 

30.230   What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA?

30.231   How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?

30.232   How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?

 

Subpart D—Adjudicatory Process

 

General Provisions

 

30.300   What administrative process will OWCP use to decide claims for entitlement, and how can claimants obtain judicial review of final decisions on their claims?

30.301   May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?

30.302   Who pays the costs associated with subpoenas?

30.303   What information may OWCP request in connection with a claim under Part E of EEOICPA?

 

Recommended Decisions on Claims

 

30.305   How does OWCP determine entitlement to EEOICPA compensation?

30.306   What does the recommended decision include?

30.307   Can one recommended decision address the entitlement of multiple claimants?

30.308   To whom is the recommended decision sent?

 

Hearings and Final Decisions on Claims

 

30.310   What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?

30.311   What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?

30.312   What will the FAB do if the claimant objects to the recommended decision but does not request a hearing?

30.313   How is a review of the written record conducted?

30.314   How is a hearing conducted?

30.315   May a claimant postpone a hearing?

30.316   How does the FAB issue a final decision on a claim?

30.317   Can the FAB request a further response from the claimant or return a claim to the district office?

30.318   How will FAB consider objections to NIOSH’s reconstruction of a radiation dose, or to OWCP’s calculation of the recommended probability of causation, in a Part B claim for radiogenic cancer?

30.319   May a claimant request reconsideration of a final decision of the FAB?

 

Reopening Claims

 

30.320   Can a claim be reopened after the FAB has issued a final decision?

 

Subpart E—Medical and Related Benefits

 

Medical Treatment and Related Issues

 

30.400   What are the basic rules for obtaining medical treatment?

30.401   What are the special rules for the services of chiropractors?

30.402   What are the special rules for the services of clinical psychologists?

30.403   Will OWCP pay for home health care, nursing home, and assisted living services?

30.404   Will OWCP pay for transportation to obtain medical treatment?

30.405   After selecting a treating physician, may an employee choose to be treated by another physician instead?

30.406   Are there any exceptions to these procedures for obtaining medical care?

 

Directed Medical Examinations

 

30.410   Can OWCP require an employee to be examined by another physician?

30.411   What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?

30.412   Who pays for second opinion and referee examinations?

 

Medical Reports

 

30.415   What are the requirements for medical reports?

30.416   How and when should medical reports be submitted?

30.417   What additional medical information may OWCP require to support continuing payment of benefits?

 

Medical Bills

 

30.420   How should medical bills and reimbursement requests be submitted?

30.421   What are the time frames for submitting bills and reimbursement requests?

30.422   If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee?

 

Subpart F—Survivors; Payments and Offsets; Overpayments

 

Survivors

 

30.500   What special statutory definitions apply to survivors under EEOICPA?

30.501   What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?

30.502   When is entitlement for survivors determined for purposes of EEOICPA?

 

Payment of Claims and Offset for Certain Payments

 

30.505   What procedures will OWCP follow before it pays any compensation?

30.506   To whom and in what manner will OWCP pay compensation?

30.507   What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA?

30.508   What is beryllium sensitivity monitoring?

30.509   Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?

 

Overpayments

 

30.510   How does OWCP notify an individual of a payment made on a claim?

30.511   What is an “overpayment” for purposes of EEOICPA?

30.512   What does OWCP do when an overpayment is identified?

30.513   Under what circumstances may OWCP waive recovery of an overpayment?

30.514   If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it?

30.515   Is a recipient responsible for an overpayment that resulted from an error made by OWCP?

30.516   Under what circumstances would recovery of an overpayment defeat the purpose of the Act?

30.517   Under what circumstances would recovery of an overpayment be against equity and good conscience?

30.518   Can OWCP require the recipient of the overpayment to submit additional financial information?

30.519   How does OWCP communicate its final decision concerning recovery of an overpayment?

30.520   How are overpayments collected?

 

Subpart G—Special Provisions

 

Representation

 

30.600   May a claimant designate a representative?

30.601   Who may serve as a representative?

30.602   Who is responsible for paying the representative’s fee?

30.603   Are there any limitations on what the representative may charge the claimant for his or her services?

 

Third Party Liability

 

30.605   What rights does the United States have upon payment of compensation under EEOICPA?

30.606   Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP?

30.607   How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery?

30.608   How does the United States calculate the amount to which it is subrogated?

30.609   Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP?

30.610   Are payments to a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?

30.611   If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?

 

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers

 

30.615   What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA?

30.616   What happens if this type of tort suit was filed prior to October 30, 2000?

30.617   What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?

30.618   What happens if this type of tort suit was filed after December 28, 2001?

30.619   Do all the parties to this type of tort suit have to take these actions?

30.620   How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of EEOICPA?

 

Coordination of Part E Benefits with State Workers’ Compensation Benefits

 

30.625   What does “coordination of benefits” mean under Part E of EEOICPA?

30.626   How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers’ compensation programs?

30.627   Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits?

 

Subpart H—Information for Medical Providers

 

Medical Records and Bills

 

30.700   In general, what responsibilities do providers have with respect to enrolling with OWCP, seeking authorization to provide services, billing, and retaining medical records?

30.701   How are medical bills to be submitted?

30.702   How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?

30.703   What are the time limitations on OWCP’s payment of bills?

 

Medical Fee Schedule

 

30.705   What services are covered by the OWCP fee schedule?

30.706   How are the maximum fees for professional medical services defined?

30.707   How are payments to providers calculated?

30.708   Does the fee schedule apply to every kind of procedure?

30.709   How are payments for medicinal drugs determined?

30.710   How are payments for inpatient medical services determined?

30.711   How are payments for outpatient medical services determined?

30.712   When and how are fees reduced?

30.713   If OWCP reduces a fee, may a provider request reconsideration of the reduction?

30.714   If OWCP reduces a fee, may a provider bill the employee for the balance?

 

Exclusion of Providers

 

30.715   What are the grounds for excluding a provider for payment under this part?

30.716   What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?

30.717   When are OWCP’s exclusion procedures initiated?

30.718   How is a provider notified of OWCP’s intent to exclude him or her?

30.719   What requirements must the provider’s response and OWCP’s decision meet?

30.720   How can an excluded provider request a hearing?

30.721   How are hearings assigned and scheduled?

30.722   How are subpoenas or advisory opinions obtained?

30.723   How will the administrative law judge conduct the hearing and issue the recommended decision?

30.724   How does a recommended decision become final?

30.725   What are the effects of non-automatic exclusion?

30.726   How can an excluded provider be reinstated?

 

Subpart I—Wage-Loss Determinations Under Part E of EEOICPA

 

General Provisions

 

30.800   What types of wage-loss are compensable under Part E of EEOICPA?

30.801   What special definitions does OWCP use in connection with Part E wage-loss determinations?

 

Evidence of Wage-Loss

 

30.805   What are the criteria for eligibility for wage-loss benefits under Part E?

30.806   What kind of medical evidence must the claimant submit to prove that he or she lost wages due to a covered illness?

30.807   What factual evidence does OWCP use to determine a covered Part E employee’s average annual wage?

 

Determinations of Average Annual Wage and Percentages of Loss

 

30.810   How will OWCP calculate the average annual wage of a covered Part E employee?

30.811   How will OWCP calculate the duration and extent of a covered Part E employee’s initial period of compensable wage-loss?

30.812   May a covered Part E employee claim for subsequent periods of compensable wage-loss?

 

Special Rules for Certain Survivor Claims Under Part E of EEOICPA

 

30.815   Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee’s compensable wage-loss?

 

Subpart J—Impairment Benefits Under Part E of EEOICPA

 

General Provisions

 

30.900   Who can receive impairment benefits under Part E?

30.901   How does OWCP determine the extent of an employee’s impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?

30.902   How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E?

 

Medical Evidence of Impairment

 

30.905   How may an impairment evaluation be obtained?

30.906   Who will pay for an impairment evaluation?

30.907   Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?

30.908   How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?

 

Ratable Impairments

 

30.910   Will an impairment that cannot be assigned a numerical percentage using the AMA’s Guides be included in the impairment rating?

30.911   Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?

30.912   Can a covered Part E employee receive benefits for additional impairment  following an award of such benefits by OWCP?

 

Authority:  5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor’s Order No. 10-2009, 74 FR 58834.

 

Subpart A—General Provisions

 

Introduction

 

§ 30.0  What are the provisions of EEOICPA, in general?

 

    Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et seq., provides for the payment of compensation benefits to covered Part B employees and, where applicable, survivors of such employees, of the United States Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors.  Part B also provides for the payment of supplemental compensation benefits to other covered Part B employees who have already been found eligible for benefits under section 5 of the Radiation Exposure Compensation Act, as amended (RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such persons.  Part E of the Act provides for the payment of compensation benefits to covered Part E employees and, where applicable, survivors of such employees.  The regulations in this part describe the rules governing filing, processing, and paying claims for benefits under both Part B and Part E of EEOICPA.

 

    (a)  Part B of EEOICPA provides for the payment of either lump-sum monetary compensation for the disability of a covered Part B employee due to an occupational illness or for monitoring for beryllium sensitivity, as well as for medical and related benefits for such illness.  Part B also provides for the payment of monetary compensation for the disability of a covered Part B employee to specified survivors if the employee is deceased at the time of payment.

 

    (b)  Part E of EEOICPA provides for the payment of monetary compensation for the established wage-loss and/or impairment of a covered Part E employee due to a covered illness, and for medical and related benefits for such covered illness.  Part E also provides for the payment of monetary compensation for the death (and established wage-loss, where applicable) of a covered Part E employee to specified survivors if the covered Part E employee is deceased at the time of payment.

 

    (c)  All types of benefits and conditions of eligibility listed in this section are subject to the provisions of EEOICPA and this part.

 

§ 30.1  What rules govern the administration of EEOICPA and this chapter?

 

    In accordance with EEOICPA, Executive Order 13179 and Secretary’s Order No. 10-2009, the primary responsibility for administering the Act, except for those activities assigned to the Secretary of Health and Human Services (HHS), the Secretary of Energy and the Attorney General, has been delegated to the Director of the Office of Workers’ Compensation Programs (OWCP).  Except as otherwise provided by law, the Director of OWCP and his or her designees have the exclusive authority to administer, interpret and enforce the provisions of the Act.

 

§ 30.2  In general, how have the tasks associated with the administration of EEOICPA claims process been assigned?

 

    (a)  In E.O. 13179, the President assigned the tasks associated with administration of the EEOICPA claims process among the Secretaries of Labor, HHS and Energy, and the Attorney General.  In light of the fact that the Secretary of Labor has been assigned primary responsibility for administering EEOICPA, almost the entire claims process is within the exclusive control of OWCP.  This means that all claimants file their claims with OWCP, and OWCP is responsible for granting or denying compensation under the Act (see §§ 30.100 through 30.102).  OWCP also provides assistance to claimants and potential claimants by providing information regarding eligibility and other program requirements, including information on completing claim forms and the types and availability of medical testing and diagnostic services related to occupational illnesses under Part B of the Act and covered illnesses under Part E of the Act.  In addition, OWCP provides an administrative review process for claimants who disagree with its recommended and final adverse decisions on claims of entitlement (see §§ 30.300 through 30.320).

 

    (b)  However, HHS has exclusive control of the portion of the claims process under which it provides reconstructed doses for certain radiogenic cancer claims (see § 30.115), which it delegated to the National Institute for Occupational Safety and Health (NIOSH) in 42 CFR part 82.  HHS also has exclusive control of the process for designating classes of employees to be added to the Special Exposure Cohort under Part B of the Act, and has promulgated regulations governing that process at 42 CFR part 83.  Finally, HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee’s radiogenic cancer (see § 30.213).  DOE and DOJ must, among other things, notify potential claimants and submit evidence that OWCP deems necessary for its adjudication of claims under EEOICPA (see §§ 30.105, 30.112, 30.206, 30.212 and 30.221).

 

§ 30.3  What do these regulations contain?

 

    This part 30 sets forth the regulations governing administration of all claims that are filed with OWCP, except to the extent specified in certain provisions.  Its provisions are intended to assist persons seeking benefits under EEOICPA, as well as personnel in the various federal agencies and DOL who process claims filed under EEOICPA or who perform administrative functions with respect to EEOICPA.  The various subparts of this part contain the following:

 

    (a)  Subpart A:  the general statutory and administrative framework for processing claims under both Parts B and E of EEOICPA.  It contains a statement of purpose and scope, together with definitions of terms, information regarding the disclosure of OWCP records, and a description of rights and penalties involving EEOICPA claims, including convictions for fraud.

 

    (b)  Subpart B:  the rules for filing claims for entitlement under EEOICPA.  It also addresses general standards regarding necessary evidence and the burden of proof, descriptions of basic forms and special procedures for certain cancer claims.

 

    (c)  Subpart C:  the eligibility criteria for occupational illnesses and covered illnesses compensable under Parts B and E of EEOICPA, respectively.

 

    (d)  Subpart D:  the rules governing the adjudication process leading to recommended and final decisions on claims for entitlement filed under Parts B and E of EEOICPA.  It also describes the hearing and reopening processes.

 

    (e)  Subpart E:  the rules governing medical care, second opinion and referee medical examinations and impairment evaluations directed by OWCP as part of its adjudication of entitlement, and medical reports and records in general.  It also addresses the kinds of medical treatment that may be authorized and how medical bills are paid.

 

    (f)  Subpart F:  the rules relating to the payment of monetary compensation available under Parts B and E of EEOICPA.  It includes provisions on medical monitoring for beryllium sensitivity, on the identification, processing and recovery of overpayments of compensation, and on the maximum aggregate amount of compensation payable under Part E.

 

    (g)  Subpart G:  the rules concerning the representation of claimants in connection with the administrative adjudication of claims before OWCP, subrogation of the United States, the effect of tort suits against beryllium vendors and atomic weapons employers, and the coordination of benefits under Part E of EEOICPA with state workers’ compensation benefits for the same covered illness.

 

    (h)  Subpart H:  information for medical providers.  It includes rules for medical reports, medical bills, and the OWCP medical fee schedule, as well as the provisions for exclusion of medical providers.

 

    (i)  Subpart I:  the rules relating to the adjudication of alleged periods of wage-loss of covered Part E employees.  It also includes provisions on the use by OWCP of Social Security Administration earnings information and certain medical evidence to establish compensable wage-loss.

 

    (j)  Subpart J:  the rules relating to the adjudication of alleged permanent impairment due to the exposure of covered Part E employees to toxic substances.  It includes provisions relating to the medical evaluation of ratable impairments, the rating of progressive conditions, and qualifications of physicians.

 

Definitions

 

§ 30.5  What are the definitions used in this part?

 

    (a)  Act or EEOICPA means the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 et seq.).

 

    (b)  Atomic weapon means any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device), the principle purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapon test device.

 

    (c)  Atomic weapons employee means:

    (1)  An individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; or

    (2)(i)  An individual employed at a facility that NIOSH reported had a potential for significant residual contamination outside of the period described in paragraph (c)(1) of this section;

    (ii)  By the atomic weapons employer that owned the facility referred to in paragraph (c)(2)(i) of this section, or a subsequent owner or operator of such facility; and

    (iii)  During a period reported by NIOSH, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, to have a potential for significant residual radioactive contamination.

 

    (d)  Atomic weapons employer means any entity, other than the United States, that:

    (1)  Processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

    (2)  Is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

 

    (e)  Atomic weapons employer facility means any facility, owned by an atomic weapons employer, that:

    (1)  Is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling; and

    (2)  Is designated as such in the list periodically published in the Federal Register by DOE.

 

    (f)  Attorney General means the Attorney General of the United States or the United States Department of Justice (DOJ).

 

    (g)  Benefit or Compensation means the money the Department pays to or on behalf of either a covered Part B employee under Part B, or a covered Part E employee under Part E, from the Energy Employees Occupational Illness Compensation Fund.  However, the term “compensation” used in section 7385f(b) of EEOICPA (restricting entitlement to only one payment of compensation under Part B) means only the payments specified in section 7384s(a)(1) and in section 7384u(a).  Except as used in section 7385f(b), these two terms also include any other amounts paid out of the Fund for such things as medical treatment, monitoring, examinations, services, appliances and supplies as well as for transportation and expenses incident to the securing of such medical treatment, monitoring, examinations, services, appliances, and supplies.

 

    (h)  Beryllium sensitization or sensitivity means that the individual has an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.

 

    (i)  Beryllium vendor means the specific corporations and named predecessor corporations listed in section 7384l(6) of the Act and any other entities designated as such by DOE on December 27, 2002.

 

    (j)  Beryllium vendor facility means a facility owned and operated by a beryllium vendor.

 

    (k)  Chronic silicosis means a non-malignant lung disease if:

    (1)  The initial occupational exposure to silica dust preceded the onset of silicosis by at least 10 years; and

    (2)  A written diagnosis of silicosis is made by a licensed physician and is accompanied by:

    (i)  A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or

    (ii)  Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or

    (iii)  Lung biopsy findings consistent with silicosis.

 

    (l)  Claim means a written assertion to OWCP of an individual’s entitlement to benefits under EEOICPA, submitted in a manner authorized by this part.

 

    (m)  Claimant means the individual who is alleged to satisfy the criteria for compensation under the Act.

 

    (n)  Compensation fund or fund means the fund established on the books of the Treasury for payment of benefits and compensation under the Act.

 

    (o)  Contemporaneous record means any document created at or around the time of the event that is recorded in the document.

 

    (p)  Covered beryllium illness means any of the following:

    (1)  Beryllium sensitivity as established by an abnormal LPT performed on either blood or lung lavage cells.

    (2)  Established chronic beryllium disease (see § 30.207(c)).

    (3)  Any injury, illness, impairment, or disability sustained as a consequence of a covered beryllium illness referred to in paragraphs (o)(1) or (2) of this section.

 

    (q)  Covered Part E employee means, under Part E of the Act, a Department of Energy contractor employee or a RECA section 5 uranium worker who has been determined by OWCP to have contracted a covered illness (see paragraph (r) of this section) through exposure at a Department of Energy facility or a RECA section 5 facility, as appropriate.

 

    (r)  Covered Part B employee means, under Part B of the Act, a covered beryllium employee (see § 30.205), a covered employee with cancer (see § 30.210(a)), a covered employee with chronic silicosis (see § 30.220), or a covered uranium employee (see paragraph (s) of this section).

 

    (s)  Covered illness means, under Part E of the Act relating to exposures at a DOE facility or a RECA section 5 facility, an illness or death resulting from exposure to a toxic substance.

 

    (t)  Covered uranium employee means, under Part B of the Act, an individual who has been determined by DOJ to be entitled to an award under section 5 of RECA, whether or not the individual was the employee or the deceased employee’s survivor.

 

    (u)  Current or former employee as defined in 5 U.S.C. 8101(1) as used in § 30.205(a)(1) means an individual who fits within one of the following listed groups:

    (1)  A civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States;

    (2)  An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;

    (3)  An individual, other than an independent contractor or individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;

    (4)  An individual appointed to a position on the office staff of a former President; or

    (5)  An individual selected and serving as a Federal petit or grand juror.

 

    (v)  Department means the United States Department of Labor (DOL).

 

    (w)  Department of Energy or DOE includes the predecessor agencies of DOE back to the establishment of the Manhattan Engineer District on August 13, 1942.

 

    (x)  Department of Energy contractor employee means any of the following:

    (1)  An individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months.

    (2)  An individual who is or was employed at a DOE facility by:

    (i)  An entity that contracted with the DOE to provide management and operating, management and integration, or environmental remediation at the facility;

    (ii)  A contractor or subcontractor that provided services, including construction and maintenance, at the facility; or

    (iii)  A civilian employee of a state or federal government agency if the agency employing that individual is found to have entered into a contract with DOE for the provision of one or more services it was not statutorily obligated to perform, and DOE compensated the agency for those services.  The delivery or removal of goods from the premises of a DOE facility does not constitute a service for the purposes of determining a worker’s coverage under this paragraph (x).

 

    (y)(1)  Department of Energy facility means, as determined by the Director of OWCP, any building, structure, or premise, including the grounds upon which such building, structure, or premise is located:

    (i)  In which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by E.O. 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and

    (ii)  With regard to which the DOE has or had:

    (A)  A proprietary interest; or

    (B)  Entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

    (2)  DOL has adopted the determinations of the Department of Energy regarding Department of Energy facilities that were contained in the list of facilities published in the Federal Register on August 23, 2004 (69 FR 51825).  DOL will periodically update this list as it deems appropriate in its sole discretion by publishing a revised list of Department of Energy facilities in the Federal Register.

 

    (z)  Disability means, for purposes of determining entitlement to payment of Part B benefits under section 7384s(a)(1) of the Act, having been determined by OWCP to have or have had established chronic beryllium disease, cancer, or chronic silicosis.

 

    (aa)  Eligible surviving beneficiary means any individual who is entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of the Act to receive a payment on behalf of a deceased covered Part B employee or a deceased covered Part E employee.

 

    (bb)  Employee means either a current or former employee.

 

    (cc)  Occupational illness means, under Part B of the Act, a covered beryllium illness, cancer sustained in the performance of duty as defined in § 30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has awarded compensation under section 5 of RECA.

 

    (dd)  OWCP means the Office of Workers’ Compensation Programs, United States Department of Labor.  One of the four divisions of OWCP is the Division of Energy Employees Occupational Illness Compensation.

 

    (ee)  Physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners, within the scope of their practice as defined by state law.  Physician assistants and nurse practitioners are excluded from this definition.  The services of chiropractors that may be reimbursed are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.

 

    (ff)  Qualified physician means any physician who has not been excluded under the provisions of subpart H of this part.  Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP.

 

    (gg)  Specified cancer means:   

    (1)  Leukemia (other than chronic lymphocytic leukemia) provided that the onset of the disease was at least 2 years after first exposure;

    (2)  Lung cancer (other than in situ lung cancer that is discovered during or after a post-mortem exam);

    (3)  Bone cancer;

    (4)  Renal cancers; or

    (5)  The following diseases, provided onset was at least 5 years after first exposure:

    (i)  Multiple myeloma;

    (ii)  Lymphomas (other than Hodgkin’s disease); and

    (iii)  Primary cancer of the:

    (A)  Thyroid;

    (B)  Male or female breast;

    (C)  Esophagus;

    (D)  Stomach;

    (E)  Pharynx;

    (F)  Small intestine;

    (G)  Pancreas;

    (H)  Bile ducts;

    (I)  Gall bladder;

    (J)  Salivary gland;

    (K)  Urinary bladder;

    (L)  Brain;

    (M)  Colon;

    (N)  Ovary; or

    (O)  Liver (except if cirrhosis or hepatitis B is indicated).

    (6)  The specified diseases designated in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.

 

    (hh)  Survivor means:

    (1)  For claims under Part B of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse, child, parent, grandchild and grandparent of a deceased covered Part B employee.

    (2)  For claims under Part E of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse and child of a deceased covered Part E employee.

    (3)  Those individuals listed in paragraphs (gg)(1) and (gg)(2) of this section do not include any individuals not living as of the time OWCP makes a lump-sum payment or payments to an eligible surviving beneficiary or beneficiaries.

 

    (ii)  Time of injury is defined as follows:

    (1)  For an employee’s claim, this term means:

    (i)  In regard to a claim arising out of exposure to beryllium or silica, the last date on which a covered Part B employee was exposed to such substance in the performance of duty in accordance with sections 7384n(a) or 7384r(c) of the Act;

    (ii)  In regard to a claim arising out of exposure to radiation under Part B, the last date on which a covered Part B employee was exposed to radiation in the performance of duty in accordance with section 7384n(b) of the Act or, in the case of a member of the Special Exposure Cohort, the last date on which the member of the Special Exposure Cohort was employed at the Department of Energy facility or the atomic weapons employer facility at which the member was exposed to radiation; or

    (iii)  In regard to a claim arising out of exposure to a toxic substance, the last date on which a covered Part E employee was employed at the Department of Energy facility or RECA section 5 facility, as appropriate, at which the exposure took place.

    (2)  For a survivor’s claim, the date of the employee’s death is the time of injury.

 

    (jj)  Time of payment or payment means the date that a paper check issued by the Department of the Treasury was received by the payee or by someone who was legally able to act for the payee, or the date the Department of the Treasury made an Electronic Funds Transfer to the payee’s financial institution. 

 

    (kk)  Toxic substance means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.

 

    (ll)  Workday means a single workshift whether or not it occurred on more than one calendar day.

 

Information in Program Records

 

§ 30.10  Are all OWCP records relating to claims filed under EEOICPA considered confidential?

 

    All OWCP records relating to claims for benefits under EEOICPA are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act and the Privacy Act of 1974.

 

§ 30.11  Who maintains custody and control of claim records?

 

    All OWCP records relating to claims for benefits filed under the Act are covered by the Privacy Act system of records entitled DOL/ESA-49 (Office of Workers’ Compensation Programs, Energy Employees Occupational Illness Compensation Program Act File).  This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/ESA-49 are official records of OWCP.  The protection, release, inspection and copying of records covered by DOL/ESA-49 shall be accomplished in accordance with the rules, guidelines and provisions of this part, as well as those contained in 29 CFR parts 70 and 71, and with the notice of the system of records and routine uses published in the Federal Register.  All questions relating to access, disclosure, and/or amendment of claims records maintained by OWCP are to be resolved in accordance with this section.

 

§ 30.12  What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?

 

    (a)  A claimant seeking copies of his or her official EEOICPA file should address a request to the District Director of the OWCP district office having custody of the file.

 

    (b)  Any request to amend a record covered by DOL/ESA-49 should be directed to the district office having custody of the official file.

 

    (c)  Any administrative appeal taken from a denial issued by OWCP under this section shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.

 

Rights and Penalties

 

§ 30.15  May EEOICPA benefits be assigned, transferred or garnished?

 

    (a)  Pursuant to section 7385f(a) of the Act, no claim for EEOICPA benefits may be assigned or transferred.

 

    (b)  Provisions of the Social Security Act (42 U.S.C. 659) and regulations issued by the Office of Personnel Management at 5 CFR part 581 permit the garnishment of payments of EEOICPA monetary benefits to collect overdue alimony and child support.  A request to garnish a payment for either of these purposes should be submitted to the district office that is handling the EEOICPA claim, and must be accompanied by a copy of the pertinent state agency or court order.

 

§ 30.16  What penalties may be imposed in connection with a claim under the Act?

 

    (a)  Other statutory provisions make it a crime to file a false or fraudulent claim or statement with the federal government in connection with a claim under the Act.  Included among these provisions is 18 U.S.C. 1001.  Enforcement of criminal provisions that may apply to claims under the Act is within the jurisdiction of the Department of Justice.

 

    (b)  In addition, administrative proceedings may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801 et seq., to impose civil penalties and assessments against persons or entities who make, submit or present, or cause to be made, submitted or presented, false, fictitious or fraudulent claims or written statements to OWCP in connection with a claim under EEOICPA.  The Departments regulations implementing PFCRA are found at 29 CFR part 22.

 

§ 30.17  Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?

 

    When a beneficiary either pleads guilty to or is found guilty on either federal or state criminal charges of defrauding the federal or a state government in connection with a claim for benefits under the Act or any other federal or state workers’ compensation law, the beneficiary forfeits (effective the date either the guilty plea is accepted or a verdict of guilty is returned after trial) any entitlement to any further benefits for any injury, illness or death covered by this part for which the time of injury was on or before the date of such guilty plea or verdict.  Any subsequent change in or recurrence of the beneficiary’s medical condition does not affect termination of entitlement under this section.

 

Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims

 

Filing Claims for Benefits Under EEOICPA

 

§ 30.100  In general, how does an employee file an initial claim for benefits?

 

    (a)  To claim benefits under EEOICPA, an employee must file a claim in writing with OWCP.  Form EE-1 should be used for this purpose, but any written communication that requests benefits under EEOICPA will be considered a claim.  It will, however, be necessary for an employee to submit a Form EE-1 for OWCP to fully develop the claim.  Copies of Form EE-1 may be obtained from OWCP or on the Internet at http://www.dol.gov/owcp/energy/index.htmThe employee must sign the written claim that is filed with OWCP, but another person may present the claim to OWCP on the employee’s behalf. 

 

    (b)  The employee may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (e.g., the employee may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations).  The employee may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.

 

    (c)  Except as provided in paragraph (d) of this section, a claim is considered to be “filed” on the date that the employee mails his or her claim to OWCP, as determined by postmark or other carrier’s date marking, or on the date that the claim is received by OWCP, whichever is the earliest determinable date.  However, in no event will a claim under Part B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor will a claim under Part E of  EEOICPA be considered to be “filed” earlier than October 30, 2000.

    (1)  The employee shall affirm that the information provided on the Form EE-1 is true, and must inform OWCP of any subsequent changes to that information.

    (2)  Except for a covered uranium employee filing a claim under Part B of the Act, the employee is responsible for submitting with his or her claim, or arranging for the submission of, medical evidence to OWCP that establishes that he or she sustained an occupational illness and/or a covered illness.  This required medical evidence is described in § 30.114 and does not refer to mere recitations of symptoms the employee experienced that the employee believes indicate that he or she sustained an occupational illness or a covered illness.

 

    (d)  For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the employee mailed his or her claim to DOE, as determined by postmark or other carrier’s date marking, or on the date that the claim was received by DOE, whichever is the earliest determinable date.  However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.

 

§ 30.101  In general, how is a survivor’s claim filed?

 

    (a)  A survivor of an employee must file a claim for compensation in writing with OWCP.  Form EE-2 should be used for this purpose, but any written communication that requests survivor benefits under the Act will be considered a claim.  It will, however, be necessary for a survivor to submit a Form EE-2 for OWCP to fully develop the claim.  Copies of Form EE-2 may be obtained from OWCP or on the Internet at http://www.dol.gov/owcp/energy/index.htm.  The survivor must sign the written claim that is filed with OWCP, but another person may present the claim to OWCP on the survivor’s behalf.  Although only one survivor needs to file a claim under this section to initiate the development process, OWCP will distribute any monetary benefits payable on the claim among all eligible surviving beneficiaries who have filed claims with OWCP.

 

    (b)  A survivor may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (e.g., the survivor may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations).  The survivor may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.

 

    (c)  A survivor must be alive to receive any payment under EEOICPA; there is no vested right to such payment.

 

    (d)  Except as provided in paragraph (e) of this section, a survivor’s claim is considered to be “filed” on the date that the survivor mails his or her claim to OWCP, as determined by postmark or other carrier’s date marking, or the date that the claim is received by OWCP, whichever is the earliest determinable date.  However, in no event will a survivor’s claim under Part B of the Act be considered to be “filed” earlier than July 31, 2001, nor will a survivor’s claim under Part E of the Act be considered to be “filed” earlier than October 30, 2000.

    (1)  The survivor shall affirm that the information provided on the Form EE-2 is true, and must inform OWCP of any subsequent changes to that information.

    (2)  Except for the survivor of a covered uranium employee claiming under Part B of the Act, the survivor is responsible for submitting, or arranging for the submission of, evidence to OWCP that establishes that the employee upon whom the survivor’s claim is based was eligible for such benefits, including medical evidence that establishes that the employee sustained an occupational illness or a covered illness.  This required medical evidence is described in § 30.114 and does not refer to mere recitations by the survivor of symptoms the employee experienced that the survivor believes indicate that the employee sustained an occupational illness or a covered illness.

 

    (e)  For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the survivor mailed his or her claim to DOE, as determined by postmark or other carrier’s date marking, or on the date that the claim was received by DOE, whichever is the earliest determinable date.  However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.

 

    (f)  A spouse or a child of a deceased DOE contractor employee or RECA section 5 uranium worker, who is not a covered spouse or covered child under Part E, may submit a written request to OWCP for a determination of whether that deceased DOE contractor employee or RECA section 5 uranium worker contracted a covered illness under section 7385s-4(d) of EEOICPA.

    (1)  Any such request submitted pursuant to paragraph (f) of this section will not be considered a survivor’s claim for benefits under Part E of the Act.

    (2)  As part of its consideration of any request submitted pursuant to paragraph (f) of this section, OWCP will apply the eligibility criteria in subpart C of this part.  However, the adjudicatory procedures contained in subpart D of this part will not apply to OWCP’s consideration of such a request, and OWCP’s response to the request will not constitute a final agency decision on entitlement to any benefits under EEOICPA.

 

§ 30.102  In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?

 

    (a)  An employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits.  Such claim must be based on an increase in the employee’s impairment rating attributable to the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP.  OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits.  However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness.

 

    (b)  An employee previously awarded wage-loss benefits by OWCP may be eligible for additional wage-loss benefits for periods of wage-loss that were not addressed in a prior claim only if the employee had not reached his or her Social Security retirement age at the time of the prior award.  OWCP will adjudicate claims filed on a yearly basis in connection with each succeeding calendar year for which qualifying wage-loss under Part E is alleged, as well as claims that aggregate calendar years for which qualifying wage-loss is alleged.

 

    (c)  Employees should use Form EE-10 to claim for additional impairment or wage-loss benefits under Part E of EEOICPA.

    (1)  The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on Form EE-10 is true, and must inform OWCP of any subsequent changes to that information.

    (2)  The employee is responsible for submitting with any claim filed under this section, or arranging for the submission of, factual and medical evidence establishing that he or she experienced another calendar year of qualifying wage-loss, and/or medical evidence establishing that he or she has an increased minimum impairment rating, as appropriate.

 

§ 30.103  How does a claimant make sure that OWCP has the evidence necessary to process the claim?

 

    (a)  Claims and certain required submissions should be made on forms prescribed by OWCP.  Persons submitting forms shall not modify these forms or use substitute forms.

 

------------------------------------------------------------------------

              Form No.                               Title

------------------------------------------------------------------------

(1)  EE-1............................  Claim for Benefits Under the Energy

                                             Employees Occupational Illness

                                             Compensation Program Act

(2)  EE-2............................  Claim for Survivor Benefits Under

                                             the Energy Employees Occupational

                                             Illness Compensation Program Act.

(3)  EE-3............................  Employment History for a Claim Under

                                             the Energy Employees Occupational

                                             Illness Compensation Program Act

(4)  EE-4............................  Employment History Affidavit for a

                                             Claim Under the Energy Employees

                                             Occupational Illness Compensation

                                             Program Act

------------------------------------------------------------------------

 

    (b)  Copies of the forms listed in this section are available for public inspection at the U.S. Department of Labor, Office of Workers’ Compensation Programs, Washington, D.C. 20210.  They may also be obtained from OWCP district offices and on the Internet at http://www.dol.gov/owcp/energy/index.htm.

 

Verification of Alleged Employment

 

§ 30.105  What must DOE do after an employee or survivor files a claim?

 

    (a)  After it receives a claim for benefits described in §§ 30.100 or 30.101, OWCP may request that DOE verify the employment history provided by the claimant.  Upon receipt of such a request, DOE will complete Form EE-5 as soon as possible and transmit the completed form to OWCP.  On this form, DOE will certify either that it concurs with the employment history provided by the claimant, that it disagrees with such history, or that it can neither concur nor disagree after making a reasonable search of its records and also making a reasonable effort to locate pertinent records not already in its possession.

 

    (b)  Claims for additional impairment or wage-loss benefits under Part E of the Act described in § 30.102 will not require any verification of employment by DOE, since OWCP will have made any required findings on this particular issue when it adjudicated the employee’s initial claim for benefits.

 

§ 30.106  Can OWCP request employment verification from other sources?

 

    (a)  For most claims filed under EEOICPA, DOE has access to sufficient factual information to enable it to fulfill its obligations described in § 30.105(a).  However, in instances where it lacks such information, DOE may arrange for other entities to provide OWCP with the information necessary to verify an employment history submitted as part of a claim.  These other entities may consist of either current or former DOE contractors and subcontractors, atomic weapons employers, beryllium vendors, or other entities with access to relevant employment information.

 

    (b)  On its own initiative, OWCP may also arrange for entities other than DOE to perform the employment verification duties described in § 30.105(a).

 

Evidence and Burden of Proof

 

§ 30.110  Who is entitled to compensation under the Act?

 

    (a)  Under Part B of EEOICPA, compensation is payable to the following covered Part B employees, or their survivors:

    (1)  A “covered beryllium employee” (as described in § 30.205(a)) with a covered beryllium illness (as defined in § 30.5(p)) who was exposed to beryllium in the performance of duty (in accordance with § 30.206).

    (2)  A “covered Part B employee with cancer” (as described in § 30.210(a)).

    (3)  A “covered Part B employee with chronic silicosis” (as described in § 30.220).

    (4)  A “covered uranium employee” (as defined in § 30.5(t)).

 

    (b)  Under Part E of EEOICPA, compensation is payable to a “covered Part E employee” (as defined in § 30.5(q)), or his or her survivors.

 

    (c)  Any claim that does not meet all of the criteria for at least one of these categories, as set forth in the regulations in this part, must be denied.

 

    (d)  All claims for benefits under the Act must comply with the claims procedures and requirements set forth in subpart B of this part before any payment can be made from the Fund.

 

§ 30.111  What is the claimant’s responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?

 

    (a)  Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and the regulations in this part, the claimant also bears the burden of providing to OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.

 

    (b)  In the event that the claim lacks required information or supporting documentation, OWCP will notify the claimant of the deficiencies and provide him or her an opportunity for correction of the deficiencies.

 

    (c)  Written affidavits or declarations, subject to penalty for perjury, by the employee, survivor or any other person, will be accepted as evidence of employment history and survivor relationship for purposes of establishing eligibility and may be relied on in determining whether a claim meets the requirements of the Act for benefits if, and only if, such person attests that due diligence was used to obtain records in support of the claim, but that no records exist.

 

    (d)  A claimant will not be entitled to any presumption otherwise provided for in these regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption.  Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  When such evidence exists, the claimant shall be notified and afforded the opportunity to submit additional written medical documentation or records.

 

§ 30.112  What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?

 

    (a)  Evidence of covered employment may include:  employment records; pay stubs; tax returns; Social Security records; and written affidavits or declarations, subject to penalty of perjury, by the employee, survivor or any other person.  However, no one document is required to establish covered employment and a claimant is not required to submit all of the evidence listed above.  A claimant may submit other evidence not listed above to establish covered employment.  To be acceptable as evidence, all documents and records must be legible.  OWCP will accept photocopies, certified copies, and original documents and records.

 

    (b)  Pursuant to §§ 30.105 and/or 30.106, DOE or another entity verifying alleged employment shall certify that it concurs with the employment information provided by the claimant, that it disagrees with the information provided by the claimant, or, after a reasonable search of its records and a reasonable effort to locate pertinent records not already in its possession, it can neither concur nor disagree with the information provided by the claimant.

    (1)  If DOE or another entity certifies that it concurs with the employment information provided by the claimant, then the criterion for covered employment will be established.

    (2)  If DOE or another entity certifies that it disagrees with the information provided by the claimant or that after a reasonable search of its records and a reasonable effort to locate pertinent records not already in its possession it can neither concur nor disagree with the information provided by the claimant, OWCP will evaluate the evidence submitted by the claimant to determine whether the claimant has established covered employment by a preponderance of the evidence.  OWCP may request additional evidence from the claimant to demonstrate that the claimant has met the criterion for covered employment.  Nothing in this section shall be construed to limit OWCP’s ability to require additional documentation.

    (3)  If the only evidence of covered employment submitted by the claimant is a written affidavit or declaration subject to penalty of perjury by the employee, survivor or any other person, and DOE or another entity either disagrees with the assertion of covered employment or cannot concur or disagree with the assertion of covered employment, then OWCP will evaluate the probative value of the affidavit in conjunction with the other evidence of employment, and may determine that the claimant has not met his or her burden of proof under § 30.111.

 

§ 30.113  What are the requirements for written medical documentation, contemporaneous records, and other records or documents?

 

    (a)  All written medical documentation, contemporaneous records, and other records or documents submitted by an employee or his or her survivor to prove any criteria provided for in these regulations must be legible.  OWCP will accept photocopies, certified copies, and original documents and records.

 

    (b)  To establish eligibility, the employee or his or her survivor may be required to provide, where appropriate, additional contemporaneous records to the extent they exist or an authorization to release additional contemporaneous records or a statement by the custodian(s) of the record(s) certifying that the requested record(s) no longer exist.  Nothing in this section shall be construed to limit OWCP’s ability to require additional documentation.

 

    (c)  If a claimant submits a certified statement, by a person with knowledge of the facts, that the medical records containing a diagnosis and date of diagnosis of a covered medical condition no longer exist, then OWCP may consider other evidence to establish a diagnosis and date of diagnosis of a covered medical condition.  However, OWCP will evaluate the probative value of such other evidence to determine whether it is sufficient proof of a covered medical condition.

 

§ 30.114  What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?

 

    (a)  Evidence of a compensable medical condition may include:  a physician’s report, laboratory reports, hospital records, death certificates, x-rays, magnetic resonance images or reports, computer axial tomography or other imaging reports, lymphocyte proliferation testings, beryllium patch tests, pulmonary function or exercise testing results, pathology reports including biopsy results and other medical records.  A claimant is not required to submit all of the evidence listed in this paragraph.  A claimant may submit other evidence that is not listed in this paragraph to establish a compensable medical condition.  Nothing in this section shall be construed to limit OWCP’s ability to require additional documentation.

 

    (b)  The medical evidence submitted will be used to establish the diagnosis and the date of diagnosis of the compensable medical condition.

    (1)  For covered beryllium illnesses under Part B of EEOICPA, additional medical evidence, as set forth in § 30.207, is required to establish a beryllium illness.

    (2)  For chronic silicosis under Part B of EEOICPA, additional medical evidence, as set forth in § 30.222, is required to establish chronic silicosis.

    (3)  For covered illnesses under Part E of EEOICPA, additional medical evidence, as set forth in § 30.232, is required to establish a covered illness.

    (i) For impairment benefits under Part E of EEOICPA, additional medical evidence, as set forth in § 30.901, is required to establish an impairment that is the result of a covered illness referred to in § 30.900.

    (ii)  For wage-loss benefits under Part E of EEOICPA, additional medical evidence, as set forth in § 30.806, is required to establish wage-loss that is the result of a covered illness referred to in § 30.800.

 

    (c)  OWCP will evaluate the medical evidence in accordance with recognized and accepted diagnostic criteria used by physicians to determine whether the claimant has established the medical condition for which compensation is sought in accordance with the requirements of the Act.

 

Special Procedures for Certain Radiogenic Cancer Claims

 

§ 30.115  For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?

 

    (a)  Other than claims seeking benefits under Part E of the Act that have previously been accepted under section 7384u of the Act or claims previously accepted under Part B pursuant to the Special Exposure Cohort provisions, OWCP will forward the claim package (including, but not limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) to NIOSH for dose reconstruction.  At that point in time, development of the claim by OWCP may be suspended.

    (1)  This package will include OWCP’s initial findings in regard to the diagnosis and date of diagnosis of the employee, as well as any employment history compiled by OWCP (including information such as dates and locations worked, and job titles).  The package, however, will not constitute either a recommended or final decision by OWCP on the claim.

    (2)  NIOSH will then reconstruct the radiation dose of the employee and provide the claimant and OWCP with the final dose reconstruction report.  The final dose reconstruction record will be delivered to OWCP with the final dose reconstruction report and to the claimant upon request.

 

    (b)  Following its receipt of the final dose reconstruction report from NIOSH, OWCP will resume its adjudication of the cancer claim and consider whether the claimant has met the eligibility criteria set forth in subpart C of this part.  However, during the period before it receives a reconstructed dose from NIOSH, OWCP may continue to develop other aspects of a claim, to the extent that it deems such development to be appropriate.

 

Subpart C--Eligibility Criteria

 

General Provisions

 

§ 30.200  What is the scope of this subpart?

 

    The regulations in this subpart describe the criteria for eligibility for benefits for claims under Part B of EEOICPA relating to covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t of the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and 7384t of the Act; and for claims relating to covered uranium employees under sections 7384t and 7384u of the Act.  These regulations also describe the criteria for eligibility for benefits for claims under Part E of EEOICPA relating to covered illnesses under sections 7385s-4 and 7385s-5 of the Act.  This subpart describes the type and extent of evidence that will be necessary to establish the criteria for eligibility for compensation for these illnesses.

 

Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA

 

§ 30.205  What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B of EEOICPA?

 

    To establish eligibility for benefits under this section, the claimant must establish the criteria set forth in both paragraphs (a) and (b) of this section:

 

    (a)  The employee is a covered beryllium employee only if the criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and (a)(3) of this section, are established:

    (1)  The employee is a “current or former employee as defined in 5 U.S.C. 8101(1)” (see § 30.5(u)) who may have been exposed to beryllium at a DOE facility or at a facility owned, operated or occupied by a beryllium vendor; or

    (2)  The employee is a current or former civilian employee of:

    (i)  Any entity that contracted with the DOE to provide management and operation, management and integration, or environmental remediation of a DOE facility; or

    (ii)  Any contractor or subcontractor that provided services, including construction and maintenance, at such a facility; or

    (iii)  A beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the DOE, including periods during which environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE; and

    (3)  The civilian employee was exposed to beryllium in the performance of duty by establishing that he or she was, during a period when beryllium dust, particles, or vapor may have been present at such a facility:

    (i)  Employed at a DOE facility (as defined in § 30.5(y)); or

    (ii)  Present at a DOE facility, or at a facility owned, operated, or occupied by a beryllium vendor, because of his or her employment by the United States, a beryllium vendor, a contractor or subcontractor of a beryllium vendor, or a contractor or subcontractor of the DOE.  Under this paragraph, exposure to beryllium in the performance of duty can be established whether or not the beryllium that may have been present at such facility was produced or processed for sale to, or use by, DOE.

 

    (b)  The employee has one of the following:

    (1)  Beryllium sensitivity as established by an abnormal beryllium LPT performed on either blood or lung lavage cells.

    (2)  Established chronic beryllium disease.

    (3)  Any injury, illness, impairment, or disability sustained as a consequence of the conditions specified in paragraphs (b)(1) and (2) of this section.

 

§ 30.206  How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?

 

    (a)  Proof of employment or physical presence at a DOE facility, or a beryllium vendor facility as defined in § 30.5(j)  , because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of a beryllium vendor during a period when beryllium dust, particles or vapor may have been present at such facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was employed or present at a covered facility and the time period of such employment or presence.

 

    (b)  If the evidence shows that exposure occurred while the employee was employed or present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility.  OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.

 

    (c)  If the evidence shows that exposure occurred while the employee was employed or present at a facility that would have to be designated by DOE as a beryllium vendor under section 7384m of the Act to be a covered facility, and that the facility has not been so designated, OWCP will deny the claim on the ground that the facility is not a covered facility. 

 

    (d)  Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:

    (1)  Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.

    (2)  Records or documents created by any vendor, processor, or producer of beryllium or related products designated as a beryllium vendor by the DOE in accordance with section 7384m of the Act.

    (3)  Records or documents created as a by product of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.

 

§ 30.207  How does a claimant prove a diagnosis of a beryllium disease covered under Part B?

 

    (a)  Written medical documentation is required in all cases to prove that the employee developed a covered beryllium illness.  Proof that the employee developed a covered beryllium illness must be made by using the procedures outlined in paragraph (b), (c), (d) or (e) of this section.

 

    (b)  Beryllium sensitivity or sensitization is established with an abnormal LPT performed on either blood or lung lavage cells.

 

    (c)  Chronic beryllium disease is established in the following manner:

    (1)  For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (b) of this section), together with lung pathology consistent with chronic beryllium disease, including the following:

    (i)  A lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

    (ii)  A computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

    (iii)  Pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

    (2)  For diagnoses before January 1, 1993, the presence of the following:

    (i)  Occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

    (ii)  Any three of the following criteria:

    (A)  Characteristic chest radiographic (or computed tomography (CT)) abnormalities.

    (B)  Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.

    (C)  Lung pathology consistent with chronic beryllium disease.

    (D)  Clinical course consistent with a chronic respiratory disorder.

    (E)  Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

    (d)  OWCP will use the criteria in either paragraph (c)(1) or (2) of this section to establish that the employee developed chronic beryllium disease as follows:

    (1)  If the earliest dated medical evidence shows that the employee was either treated for, tested positive for, or diagnosed with a chronic respiratory disorder before January 1, 1993, the criteria set forth in paragraph (c)(2) of this section may be used;

    (2)  If the earliest dated medical evidence shows that the employee was either treated for, tested positive for, or diagnosed with a chronic respiratory disorder on or after January 1, 1993, the criteria set forth in paragraph (c)(1) of this section must be used; and

    (3)  If the employee was treated for a chronic respiratory disorder before January 1, 1993 and medical evidence verifies that such treatment was performed before January 1, 1993, but the medical evidence is dated on or after January 1, 1993, the criteria set forth in paragraph (c)(2) of this section may be used.

 

    (e)  An injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disability and the beryllium sensitivity or established chronic beryllium disease.  Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease, is sufficient in itself to prove a causal relationship.

 

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA

 

§ 30.210  What are the criteria for eligibility for benefits relating to radiogenic cancer?

 

    (a)  To establish eligibility for benefits for radiogenic cancer under Part B of  EEOICPA, an employee or his or her survivor must show that:

    (1)  The employee has been diagnosed with one of the forms of cancer specified in § 30.5(gg); and

 

    (i)  Is a member of the Special Exposure Cohort (as described in § 30.214(a) of this subpart) who, as a civilian DOE employee or civilian DOE contractor employee, contracted the specified cancer after beginning employment at a DOE facility; or

    (ii)  Is a member of the Special Exposure Cohort (as described in § 30.214(a) of this subpart) who, as a civilian atomic weapons employee, contracted the specified cancer after beginning employment at an atomic weapons employer facility (as defined in § 30.5(e)); or

    (2)  The employee has been diagnosed with cancer; and

    (i)(A)  Is/was a civilian DOE employee who contracted that cancer after beginning employment at a DOE facility; or

    (B)  Is/was a civilian DOE contractor employee who contracted that cancer after beginning employment at a DOE facility; or

    (C)  Is/was a civilian atomic weapons employee who contracted that cancer after beginning employment at an atomic weapons employer facility; and

    (ii)  The cancer was at least as likely as not related to the employment at the DOE facility or atomic weapons employer facility; or

    (3)  The employee has been diagnosed with an injury, illness, impairment or disease  that arose as a consequence of the accepted cancer.

 

    (b)(1)  To establish eligibility for benefits for radiogenic cancer under Part E of  EEOICPA, an employee or his or her survivor must show that:

    (i)  The employee has been diagnosed with cancer; and

    (A)  Is/was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and

    (B)  The cancer was at least as likely as not related to exposure to a toxic substance of a radioactive nature at a DOE facility or a RECA section 5 facility; and

    (C)  It is at least as likely as not that the exposure to such toxic substance(s) was related to employment at a DOE facility or a RECA section 5 facility; or

    (ii)  The employee has been diagnosed with an injury, illness, impairment or disease  that arose as a consequence of the accepted cancer.

    (2)  Eligibility for benefits for radiogenic cancer under Part E in a claim that has previously been accepted under Part B pursuant to the Special Exposure Cohort provisions is described in § 30.230(a) of these regulations.

 

§ 30.211  How does a claimant establish that the employee has or had contracted cancer?

 

    A claimant establishes that the employee has or had contracted a specified cancer (as defined in § 30.5(gg)) or other cancer with medical evidence that sets forth an explicit diagnosis of cancer and the date on which that diagnosis was first made.

 

§ 30.212  How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility?

 

    (a)  Proof of employment by the DOE or a DOE contractor at a DOE facility, or by an atomic weapons employer at an atomic weapons employer facility, or at a RECA section 5 facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment.

 

    (b)(1)  Except as provided in paragraph (b)(2) of this section, if the evidence shows that exposure occurred while the employee was employed at a facility during a time frame that is outside the relevant period indicated for that facility, OWCP may request that DOE provide additional information on the facility.  OWCP will determine whether the evidence of record supports enlarging the relevant period for that facility.

    (2)  OWCP may choose not to request that DOE provide additional information on an atomic weapons employer facility that NIOSH reported had a potential for significant residual radiation contamination in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, if the evidence referred to in paragraph (a) of this section establishes that the employee was employed at that facility during a period when NIOSH reported that it had a potential for significant residual radiation contamination.

 

    (c)  If the evidence shows that exposure occurred while the employee was employed by an employer that would have to be designated by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a covered employer, and that the employer has not been so designated, OWCP will deny the claim on the ground that the employer is not a covered atomic weapons employer.

 

    (d)  Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:

    (1)  Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.

    (2)  Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.

 

§ 30.213  How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility?

 

    (a)  HHS, with the advice of the Advisory Board on Radiation and Worker Health, has issued regulatory guidelines at 42 CFR part 81 that OWCP uses to determine whether radiogenic cancers claimed under Parts B and E were at least as likely as not related to employment at a DOE facility, an atomic weapons employer facility, or a RECA section 5 facility.  Persons should consult HHS’s regulations for information regarding the factual evidence that will be considered by OWCP, in addition to the employee’s final dose reconstruction report that will be provided to OWCP by NIOSH, in making this particular factual determination.

 

    (b)  HHS’s regulations satisfy the legal requirements in section 7384n(c) of the Act, which also sets out OWCP’s obligation to use them in its adjudication of claims for radiogenic cancer filed under Part B of the Act, and provide the factual basis for OWCP to determine if the “probability of causation” (PoC) that an employee’s cancer was sustained in the performance of duty is 50% or greater (i.e., it is “at least as likely as not” causally related to employment), as required under section 7384n(b).

 

    (c)  OWCP also uses HHS’s regulations when it makes the determination required by section 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if “it is at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the employee’s radiogenic cancer claimed under Part E.  For cancer claims under Part E, if the PoC is less than 50% and the claimant alleges that the employee was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part. 

 

§ 30.214  How does a claimant establish that the employee is a member of the Special Exposure Cohort?

 

    (a)  For purposes of establishing eligibility as a member of the Special Exposure Cohort (SEC) under § 30.210(a)(1), the employee must have been a DOE employee, a DOE contractor employee, or an atomic weapons employee who meets any of the following requirements:

    (1)  The employee was so employed for a number of workdays aggregating at least 250 workdays before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak Ridge, Tennessee; and during such employment:

    (i)  Was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee’s body to radiation; or

    (ii)  Worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

    (2)  The employee was so employed before January 1, 1974, by DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

    (3)  The employee is a member of a group or class of employees subsequently designated as additional members of the SEC by HHS.

 

    (b)  For purposes of satisfying the 250 workday requirement of paragraph (a)(1) of this section, the claimant may aggregate the days of service at more than one gaseous diffusion plant.

 

    (c)  Proof of employment by the DOE or a DOE contractor, or an atomic weapons employer, for the requisite time periods set forth in paragraph (a) of this section, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment.  If the evidence shows that exposure occurred while the employee was employed by an employer that would have to be designated by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a covered employer, and that the employer has not been so designated, OWCP will deny the claim on the ground that the employer is not a covered atomic weapons employer.

 

    (d)  Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:

    (1)  Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.

    (2)  Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.

 

§ 30.215  How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?

 

    An injury, illness, impairment or disease sustained as a consequence of a diagnosed cancer covered by the provisions of § 30.210 must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the cancer.  Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a cancer, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the cancer, is sufficient in itself to prove a causal relationship.

 

Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA

 

§ 30.220  What are the criteria for eligibility for benefits relating to chronic silicosis?

 

    To establish eligibility for benefits for chronic silicosis under Part B of EEOICPA, an employee or his or her survivor must show that:

 

    (a)  The employee is a civilian DOE employee, or a civilian DOE contractor employee, who was present for a number of workdays aggregating at least 250 workdays during the mining of tunnels at a DOE facility (as defined in § 30.5(y)) located in Nevada or Alaska for tests or experiments related to an atomic weapon, and has been diagnosed with chronic silicosis (as defined in § 30.5(k)); or

 

    (b)  The employee has been diagnosed with an injury, illness, impairment or disease  that arose as a consequence of the accepted chronic silicosis.

 

§ 30.221  How does a claimant prove exposure to silica in the performance of duty?

 

    (a)  Proof of the employee’s employment and presence for the requisite days during the mining of tunnels at a DOE facility located in Nevada or Alaska for tests or experiments related to an atomic weapon may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and present at these sites and the time period(s) of such employment and presence.

 

    (b)  If the evidence shows that exposure occurred while the employee was employed and present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility.  OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.

 

    (c)  Records from the following sources may be considered as evidence for purposes of establishing proof of employment or presence at a covered facility:

    (1)  Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.

    (2)  Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.

 

    (d)  For purposes of satisfying the 250 workday requirement of § 30.220(a), the claimant may aggregate the days of service at more than one qualifying site.

 

§ 30.222  How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease?

 

    (a)  A written diagnosis of the employee’s chronic silicosis (as defined in § 30.5(k)) shall be made by a licensed physician and accompanied by one of the following:

    (1)  A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or

    (2)  Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or

    (3)  Lung biopsy findings consistent with silicosis.

 

    (b)  An injury, illness, impairment or disease sustained as a consequence of accepted chronic silicosis covered by the provisions of § 30.220(a) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the accepted chronic silicosis.  Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of accepted chronic silicosis, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the accepted chronic silicosis, is sufficient in itself to prove a causal relationship.

 

Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA

 

§ 30.225  What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees?

 

    In order to be eligible for benefits under this section, the claimant must establish the criteria set forth in either paragraph (a) or paragraph (b) of this section:

 

    (a)  The Attorney General has determined that the claimant is a covered uranium employee who is entitled to payment of $100,000 as compensation due under section 5 of  RECA for a claim made under that statute (there is, however, no requirement that the claimant or surviving eligible beneficiary has actually received payment pursuant to RECA).  If a deceased employee’s survivor(s) has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to EEOICPA compensation in accordance with section 7384u(e) of the Act.

 

    (b)  The covered uranium employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the medical condition for which he or she was determined to be entitled to payment of $100,000 as compensation due under section 5 of RECA.

 

§ 30.226  How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease?

 

    An injury, illness, impairment or disease sustained as a consequence of a medical condition covered by the provisions of § 30.225(a) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the accepted medical condition.  Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a medical condition covered by the provisions of § 30.225(a), nor the belief of the claimant that the injury, illness, impairment or disease was caused by such a condition, is sufficient in itself to prove a causal relationship.

 

Eligibility Criteria for Other Claims Under Part E of EEOICPA

 

§ 30.230  What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA?

 

    To establish that an employee contracted a covered illness under Part E of the Act, the employee, or his or her survivor, must show one of the following:

 

    (a)  That OWCP has determined under Part B of EEOICPA that the employee is a DOE contractor employee as defined in § 30.5(x), and that he or she has been awarded compensation under that Part of the Act for an occupational illness;

 

    (b)  That the Attorney General has determined that the employee is entitled to payment of $100,000 as compensation due under section 5 of RECA for a claim made under that statute (however, if a deceased employee’s survivor has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to benefits under Part E of EEOICPA in accordance with section 7385s-3 of the Act);


    (c)  That the Secretary of Energy has accepted a positive determination of a Physicians Panel that the employee sustained an illness or died due to exposure to a toxic substance at a DOE facility under former section 7385o of EEOICPA, or that the Secretary of Energy has found significant evidence contrary to a negative determination of a Physicians Panel; or

 

    (d)(1)  That the employee is a civilian DOE contractor employee as defined in § 30.5(x), or a civilian who was employed in a uranium mine or mill located in Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or Texas at any time during the period from January 1, 1942 through December 31, 1971, or was employed in the transport of uranium ore or vanadium-uranium ore from such a mine or mill during that same period, and that he or she:

    (i)  Has been diagnosed with an illness; and

    (ii)  That it is at least as likely as not that exposure to a toxic substance at a Department of Energy facility or at a RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the illness; and

    (iii)  That it is at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility or a RECA section 5 facility, as appropriate.

    (2)  In making the determination under paragraph (d)(1)(ii) of this section, OWCP will consider:

    (i)  The nature, frequency and duration of exposure of the covered employee to the substance alleged to be toxic;

    (ii)  Evidence of the carcinogenic or pathogenic properties of the alleged toxic substance to which the employee was exposed;

    (iii)  An opinion of a qualified physician with expertise in treating, diagnosing or researching the illness claimed to be caused or aggravated by the alleged exposure; and

    (iv)  Any other evidence that OWCP determines to have demonstrated relevance to the relation between a particular toxic substance and the claimed illness.

 

§ 30.231  How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?

 

    To establish employment-related exposure to a toxic substance at a Department of Energy facility or RECA section 5 facility as required by § 30.230(d), an employee, or his or her survivor(s), must prove that the employee was employed at such facility and that he or she was exposed to a toxic substance in the course of that employment.

 

    (a)  Proof of employment may be established by any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employmentIf the only evidence of covered employment submitted by the claimant is a written affidavit or declaration subject to penalty of perjury by the employee, survivor or any other person, and DOE or another entity either disagrees with the assertion of covered employment or cannot concur or disagree with the assertion of covered employment, then OWCP will evaluate the probative value of the affidavit in conjunction with the other evidence of employment, and may determine that the claimant has not met his or her burden of proof under § 30.111.

    (b)  For claimants who have established proof of employment, proof of exposure to a toxic substance may be established by the submission of any appropriate document or information that is evidence that such substance was present at the facility where the employee was employed and that the employee came into contact with such substance.  Information from the following sources may be considered as probative factual evidence for purposes of establishing an employee’s exposure to a toxic substance at a DOE facility or a RECA section 5 facility: 

    (1)  To the extent practicable and appropriate, from DOE, a DOE-sponsored Former Worker Program, or an entity that acted as a contractor or subcontractor to DOE;

    (2)  OWCP’s Site Exposure Matrices; or

    (3)  Any other entity deemed by OWCP to be a reliable source of information necessary to establish that the employee was exposed to a toxic substance at a DOE facility or RECA section 5 facility.

 

§ 30.232  How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?

 

    (a)  To establish that the employee has been diagnosed with a covered illness as required by § 30.230(d), the employee, or his or her survivor(s), must provide the following:

    (1)  Written medical evidence containing a physician’s diagnosis of the employee’s covered illness (as that term is defined in § 30.5(s)), and the physician’s reasoning for his or her opinion regarding causation; and

    (2)  Any other evidence OWCP may deem necessary to show that the employee has or had an illness that resulted from an exposure to a toxic substance while working at either a DOE facility or a RECA section 5 facility.

 

    (b)  An injury, illness, impairment or disease sustained as a consequence of a covered illness (as defined in § 30.5(s)) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the covered illness.  Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a covered illness, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the covered illness, is sufficient in itself to prove a causal relationship.


Subpart D--Adjudicatory Process

 

General Provisions

 

§ 30.300  What administrative process will OWCP use to decide claims for entitlement, and how can claimants obtain judicial review of final decisions on their claims?

 

    OWCP district offices will issue recommended decisions with respect to most claims for entitlement under Part B and/or Part E of EEOICPA that are filed pursuant to the regulations set forth in subpart B of this part.  In circumstances where a claim is made for more than one benefit available under Part B and/or Part E of the Act, OWCP may issue a recommended decision on only part of that particular claim in order to adjudicate that portion of the claim as quickly as possible.  Should this occur, OWCP will issue one or more recommended decisions on the deferred portions of the claim when the adjudication of those portions is completed.  All recommended decisions granting and/or denying claims for entitlement under Part B and/or Part E of the Act will be forwarded to the Final Adjudication Branch (FAB).  Claimants will be given an opportunity to object to all or part of the recommended decision before the FAB.  The FAB will consider objections filed by a claimant and conduct a hearing, if requested to do so by the claimant, before issuing a final decision on the claim for entitlement.  Claimants may request judicial review of a final decision of FAB by filing an action in federal district court. 

 

§ 30.301  May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?

 

    (a)  In connection with the adjudication of a claim under Part B of EEOICPA, an OWCP district office and/or a FAB reviewer may, at their own initiative, issue subpoenas for the attendance and testimony of witnesses, and for the production of books, electronic records, correspondence, papers or other relevant documents.  Subpoenas will only be issued for documents if they are relevant and cannot be obtained by other means, and for witnesses only where oral testimony is the best way to ascertain the facts.

 

    (b)  A claimant may also request a subpoena in connection with his or her claim under Part B of the Act, but such request may only be made to a FAB reviewer.  No subpoenas will be issued at the request of the claimant under any other portion of the claims process.  The decision to grant or deny such request is within the discretion of the FAB reviewer.  To request a subpoena under this section, the requestor must:

    (1)  Submit the request in writing and send it to the FAB reviewer as early as possible, but no later than 30 days (as evidenced by postmark or other carrier’s date marking) after the date of the original hearing request;

    (2)  Explain why the testimony or evidence is directly relevant and material to the issues in the case; and

    (3)  Establish that a subpoena is the best method or opportunity to obtain such evidence because there are no other means by which the documents or testimony could have been obtained.

 

    (c)  No subpoena will be issued for attendance of employees or contractors of OWCP or NIOSH acting in their official capacities as decision-makers or policy administrators.  For hearings taking the form of a review of the written record, no subpoena for the appearance of witnesses will be considered.

 

    (d)  The FAB reviewer will issue the subpoena under his or her own name.  It may be served in person or by certified mail, return receipt requested, addressed to the person to be served at his or her last known principal place of business or residence.  A decision to deny a subpoena requested by a claimant can only be challenged as part of a request for reconsideration of any adverse decision of the FAB which results from the hearing.

 

§ 30.302  Who pays the costs associated with subpoenas?

 

    (a)  Witnesses who are not employees or former employees of the federal government shall be paid the same fees and mileage as paid for like services in the District Court of the United States where the subpoena is returnable, except that expert witnesses shall be paid a fee not to exceed the local customary fee for such services.

 

    (b)  Where OWCP asked that the witness submit evidence into the case record or asked that the witness attend, OWCP shall pay the fees and mileage.  Where the claimant asked for the subpoena, and where the witness submitted evidence into the record at the request of the claimant, the claimant shall pay the fees and mileage.

 

§ 30.303  What information may OWCP request in connection with a claim under Part E of EEOICPA?

 

    At any time during the course of development of a claim for benefits under Part E, OWCP may determine that it needs relevant information to adjudicate the claim.  When this occurs, and at the request of OWCP, DOE and/or any contractor who employed a Department of Energy contractor employee must provide to OWCP information or documents in response to the request in connection with a claim under Part E of EEOICPA.

 

    (a)  The party to whom the request is made must respond to OWCP within 90 days of the request with either:

    (1)  The requested information or documents; or

    (2)  A sworn statement that a good faith search for the requested information or documents was conducted, and that the information or documents could not be located.

 

    (b)  DOE and/or the DOE contractor who employed a Department of Energy contractor employee must query third parties under its control to acquire the requested information or documents.

 

    (c)  In providing the requested information or documents, DOE and/or the DOE contractor who employed a DOE contractor employee must preserve the current organization of the requested information or documents, and must provide such description and indexing of the requested information or documents as OWCP considers appropriate to facilitate their use by OWCP.

 

    (d)  Information or document requests may include, but are not limited to, requests for records, files and other data, whether paper, electronic, imaged or otherwise, developed, acquired or maintained by DOE or the DOE contractor who employed a DOE contractor employee.  Such information or documents may include records, files and data on facility industrial hygiene, employment of individuals or groups, exposure and medical records, and claims applications.

 

Recommended Decisions on Claims

 

§ 30.305  How does OWCP determine entitlement to EEOICPA compensation?

 

    (a)  In reaching a recommended decision with respect to EEOICPA compensation, OWCP considers the claim presented by the claimant, the factual and medical evidence of record, the dose reconstruction report prepared by NIOSH (if any), any report submitted by DOE and the results of such investigation as OWCP may deem necessary.

 

    (b)  The OWCP claims staff applies the law, the regulations and its procedures when it evaluates the medical evidence and the facts as reported or obtained upon investigation.

 

§ 30.306  What does the recommended decision include?

 

    The recommended decision shall include a discussion of the district office’s findings of fact and conclusions of law in support of the recommendation.  The recommended decision may recommend acceptance or rejection of the claim in its entirety, or of a portion of the claim presented.  It is accompanied by a notice of the claimant’s right to file objections with, and request a hearing before, the FAB.

 

§ 30.307  Can one recommended decision address the entitlement of multiple claimants?

 

    (a)  When multiple individuals have filed survivor claims under Part B and/or Part E of EEOICPA relating to the same deceased employee, the entitlement of all of those individuals shall be determined in the same recommended decision, except as described in paragraph (b) of this section.

 

    (b)  If another individual subsequently files a survivor claim for the same award, the recommended decision on that claim will not address the entitlement of the earlier claimants if the district office recommended that the later survivor claim be denied.

 

§ 30.308  To whom is the recommended decision sent?

 

    (a)  A copy of the recommended decision will be mailed to the claimant’s last known address and to the claimant’s designated representative before OWCP, if any.  Notification to either the claimant or the representative will be considered notification to both parties.

 

    (b)  At the same time it issues a recommended decision on a claim, the OWCP district office will forward the record of such claim to the FAB.  Any new evidence submitted to the district office following the issuance of the recommended decision will also be forwarded to the FAB for consideration.

 

Hearings and Final Decisions on Claims

 

§ 30.310  What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?

 

    (a)  Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law discussed in such decision, including NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.  This written statement should be filed with the FAB at the address indicated in the notice accompanying the recommended decision.

 

    (b)  For purposes of determining whether the written statement referred to in paragraph (a) of this section has been timely filed with the FAB, the statement will be considered to be “filed” on the date that the claimant mails it to the FAB, as determined by postmark or other carrier’s date marking, or on the date that such written statement is actually received, whichever is the earliest determinable date.

 

§ 30.311  What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?

 

    (a)  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, the FAB may issue a final decision accepting the recommendation of the district office as provided in § 30.316.

 

    (b)  If the recommended decision accepts all or part of a claim for compensation, the FAB may issue a final decision at any time after receiving written notice from the claimant that he or she waives any objection to all or part of the recommended decision.

 

§ 30.312  What will the FAB do if the claimant objects to the recommended decision but does not request a hearing?

 

    If the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record.  If the claimant only objects to part of the recommended decision, the FAB may issue a final decision accepting the remaining part of the recommendation of the district office without first reviewing the written record (see § 30.316).

 

§ 30.313  How is a review of the written record conducted?

 

    (a)  The FAB reviewer will consider the written record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  The reviewer may also conduct whatever investigation is deemed necessary.

 

    (b)  The claimant should submit, with his or her written statement that objects to the recommended decision, all evidence or argument that he or she wants to present to the reviewer.  However, evidence or argument may be submitted at any time up to the date specified by the reviewer for the submission of such evidence or argument.

 

    (c)  Any objection that is not presented to the FAB reviewer, including any objection to NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), whether or not the pertinent issue was previously presented to the district office, is deemed waived for all purposes.

 

§ 30.314  How is a hearing conducted?

 

    (a)  The FAB reviewer retains complete discretion to set the time and place of the hearing, including the amount of time allotted for the hearing, considering the issues to be resolved.  At the discretion of the reviewer, the hearing may be conducted by telephone, teleconference, videoconference or other electronic means.  As part of the hearing process, the FAB reviewer will consider the written record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  The reviewer may also conduct whatever investigation is deemed necessary.

    (1)  The FAB reviewer will try to set the hearing at a place that is within commuting distance of the claimant’s residence, but will not be able to do so in all cases.  Therefore, for reasons of economy, the claimant may be required to travel a roundtrip distance of up to 200 miles to attend the hearing.

    (2)  In unusual circumstances, the FAB reviewer may set a place for the hearing that is more than 200 miles roundtrip from the claimant’s residence.  However, in that situation, OWCP will reimburse the claimant for reasonable and necessary travel expenses incurred to attend the hearing if he or she submits a written reimbursement request that documents such expenses.

 

    (b)  The FAB reviewer will mail a notice of the time and place of the hearing to the claimant and any representative at least 30 days before the scheduled hearing date.  The FAB reviewer may mail a hearing notice less than 30 days prior to the hearing if the claimant and/or representative waives the above 30-day notice period in writing.  If the claimant only objects to part of the recommended decision, the FAB reviewer may issue a final decision accepting the remaining part of the recommendation of the district office without first holding a hearing (see § 30.316).  Any objection that is not presented to the FAB reviewer, including any objection to NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), whether or not the pertinent issue was previously presented to the district office, is deemed waived for all purposes.

 

    (c)  The hearing is an informal process, and the reviewer is not bound by common law or statutory rules of evidence, or by technical or formal rules of procedure.  The reviewer may conduct the hearing in such manner as to best ascertain the rights of the claimant.  During the hearing process, the claimant may state his or her arguments and present new written evidence and/or testimony in support of the claim.

 

    (d)  Testimony at hearings is recorded, then transcribed and placed in the record.  Oral testimony shall be made under oath.

 

    (e)  The FAB reviewer will furnish a transcript of the hearing to the claimant, who has 20 days from the date it is sent to submit any comments to the reviewer.

 

    (f)  The claimant will have 30 days after the hearing is held to submit additional evidence or argument, unless the reviewer, in his or her sole discretion, grants an extension.  Only one such extension may be granted.

 

    (g)  The reviewer determines the conduct of the hearing and may terminate the hearing at any time he or she determines that all relevant evidence has been obtained, or because of misbehavior on the part of the claimant and/or representative at or near the place of the oral presentation.

 

§ 30.315  May a claimant postpone a hearing?

 

    (a)  The FAB will entertain any reasonable request for scheduling the time and place of the hearing, but such requests should be made at the time that the hearing is requested.  Scheduling is at the discretion of the FAB, and is not reviewable.  In most instances, once the hearing has been scheduled and appropriate written notice has been mailed, it cannot be postponed at the claimant’s request for any reason except those stated in paragraph (b) of this section, unless the FAB reviewer can reschedule the hearing on the same docket (that is, during the same hearing trip).  If a request to postpone a scheduled hearing does not meet one of the tests of paragraph (b) and cannot be accommodated on the same docket, or if the claimant and/or representative cancels or fails to attend a scheduled hearing, no further opportunity for a hearing will be provided.  Instead, the FAB will consider the claimant’s objections by means of a review of the written record.  In the alternative, a teleconference may be substituted for the hearing at the discretion of the reviewer.

 

    (b)  Where the claimant or the representative appointed by the claimant in accordance with § 30.600 of this part has a medical reason that prevents attendance at the hearing, or where the death or illness of  the claimant’s parent , spouse, or child prevents the claimant from attending the hearing as scheduled, a postponement may be granted in the discretion of the FAB if the claimant or the representative provides at least 24 hours notice and a reasonable explanation supporting his or her inability to attend the scheduled hearing.

 

    (c)  At any time after requesting a hearing, the claimant can request a change to a review of the written record by making a written request to the FAB.  Once such a change is made, no further opportunity for a hearing will be provided.

 

§ 30.316  How does the FAB issue a final decision on a claim?

 

    (a)  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part (see §§ 30.311, 30.312 and 30.314(b)).

 

    (b)  If the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.

 

    (c)  Any recommended decision (or part thereof) that is pending either a hearing or a review of the written record for more than one year from the date the FAB received the written statement described in § 30.310(a), or the date the Director reopened the claim for issuance of a new final decision pursuant to § 30.320(a), shall be considered a final decision of the FAB on the one-year anniversary of such date.  Any recommended decision described in § 30.311 that is pending at the FAB for more than one year from the date that the period of time described in § 30.310 expired shall be considered a final decision of the FAB on the one-year anniversary of such date.

 

    (d)  The decision of the FAB, whether issued pursuant to paragraph (a), (b) or (c) of this section, shall be final upon the date of issuance of such decision, unless a timely request for reconsideration under § 30.319 has been filed.

 

    (e)  A copy of the final decision of the FAB will be mailed to the claimant’s last known address and to the claimant’s designated representative before OWCP, if any.  Notification to either the claimant or the representative will be considered notification to both parties.

 

§ 30.317  Can the FAB request a further response from the claimant or return a claim to the district office?

 

    At any time before the issuance of its final decision, the FAB may request that the claimant submit additional evidence or argument, or return the claim to the district office for further development and/or issuance of a new recommended decision without issuing a final decision, whether or not requested to do so by the claimant.

 

 

§ 30.318  How will FAB consider objections to NIOSH’s reconstruction of a radiation dose, or to OWCP’s calculation of the recommended probability of causation, in a Part B claim for radiogenic cancer?

 

    (a)  If the claimant objects to NIOSH’s reconstruction of the radiation dose to which the employee was exposed, either in writing or at the oral hearing, the FAB reviewer has the discretion to consult with NIOSH as part of his or her consideration of any objection.  However, the HHS dose reconstruction regulation, which provides guidance for the technical methods developed and used by NIOSH to provide a reasonable estimate of the radiation dose received by an employee, is binding on FAB.  Should this consultation take place, the FAB reviewer will properly document it in the case.  Whether or not NIOSH is consulted, and as provided for in § 30.317, the FAB reviewer may decide to return the case to the district office for referral to NIOSH for such further action as may be appropriate.

 

    (b)  If the claimant objects to OWCP’s calculation of the recommended probability of causation in a Part B radiogenic cancer claim, the FAB reviewer has the discretion to consider if OWCP used incorrect factual information when it performed this calculation.  However, the statute requires that OWCP use a particular methodology, established by regulations issued by HHS at 42 CFR part 81, when it calculates the recommended probability of causation.

 

§ 30.319  May a claimant request reconsideration of a final decision of the FAB?

 

    (a)  A claimant may request reconsideration of a final decision of the FAB by filing a written request with the FAB within 30 days from the date of issuance of such decision.  If a timely request for reconsideration is made, the decision in question will no longer be considered “final” under § 30.316(d).

 

    (b)  For purposes of determining whether the written request referred to in paragraph (a) of this section has been timely filed with the FAB, the request will be considered to be “filed” on the date that the claimant mails it to the FAB, as determined by postmark or other carrier’s date marking, or on the date that such written request is actually received, whichever is the earliest determinable date.

 

    (c)  A hearing is not available as part of the reconsideration process.  If the FAB grants the request for reconsideration, it will consider the written record of the claim again and issue a new final decision on the claim.  A new final decision that is issued after the FAB grants a request for reconsideration will be “final” upon the date of issuance of such new decision.

    (1)  Instead of issuing a new final decision after granting a request for reconsideration, the FAB may return the claim to the district office for further development as provided in § 30.317.

    (2)  If the FAB denies the request for reconsideration, the FAB decision that formed the basis for the request will be considered “final” upon the date the request is denied, and no further requests for reconsideration of that particular final decision of the FAB will be entertained.

 

    (d)  A claimant may not seek judicial review of a decision on his or her claim under  EEOICPA until OWCP’s decision on the claim is final pursuant to either § 30.316(d) (for claims in which no request for reconsideration was filed with the FAB) or paragraph (c) of this section (for claims in which a request for reconsideration was filed with the FAB).

 

Reopening Claims

 

§ 30.320  Can a claim be reopened after the FAB has issued a final decision?

 

    (a)  At any time after the FAB has issued a final decision pursuant to § 30.316, and without regard to whether new evidence or information is presented or obtained, the Director for Energy Employees Occupational Illness Compensation may reopen a claim and return it to the FAB for issuance of a new final decision, or to the district office for such further development as may be necessary, to be followed by a new recommended decision.  The Director may also vacate any other type of decision issued by the FAB.

 

    (b)  At any time after the FAB has issued a final decision pursuant to § 30.316, a claimant may file a written request that the Director for Energy Employees Occupational Illness Compensation reopen his or her claim, provided that the claimant also submits new evidence of a diagnosed medical condition, covered employment, or exposure to a toxic substance.  A written request to reopen a claim may also be supported by identifying either a change in the PoC guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort.  If the Director concludes that the evidence submitted or matter identified in support of the claimant’s request is material to the claim, the Director will reopen the claim and return it to the district office for such further development as may be necessary, to be followed by a new recommended decision.

    (1)  If the Director concludes that the evidence submitted or matter identified in support of the claimant’s request is material to the claim, the Director will reopen the claim and return it to the district office for such further development as may be necessary, to be followed by a new recommended decision.

    (2)  New evidence of a medical condition described in subpart C of these regulations is not sufficient to support a written request to reopen a claim for such a condition under paragraph (b) of this section.

 

    (c)  The decision whether or not to reopen a claim under this section is solely within the discretion of the Director for Energy Employees Occupational Illness Compensation and is not reviewable.  If the Director reopens a claim pursuant to paragraphs (a) or (b) of this section and returns it to the district office, the resulting new recommended decision will be subject to the adjudicatory process described in this subpart.  However, neither the district office nor the FAB can consider any objection concerning the Director’s decision to reopen a claim under this section.

 

Subpart E--Medical and Related Benefits

 

Medical Treatment and Related Issues

 

§ 30.400  What are the basic rules for obtaining medical treatment?

 

    (a)  A covered Part B employee or a covered Part E employee who fits into at least one of the compensable claim categories described in subpart C of this part is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness or covered illness, retroactive to the date the claim for benefits for that occupational illness or covered illness under Part B or Part E of EEOICPA was filed.  The employee need not be disabled to receive such treatment.  If there is any doubt as to whether a specific service, appliance or supply is necessary to treat the occupational illness or covered illness, the employee should consult OWCP prior to obtaining it through the automated authorization process described in § 30.700.  In situations where the occupational illness or covered illness is a secondary cancer, such treatment may include treatment of the underlying primary cancer when it is medically necessary or related to treatment of the secondary cancer; however, payment for medical treatment of the underlying primary cancer under these circumstances does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of EEOICPA. 

 

    (b)  If a claimant disagrees with the decision of OWCP that medical benefits provided under paragraph (a) of this section are not necessary to treat an occupational illness or covered illness, he or she may choose to utilize the adjudicatory process described in subpart D of this part.

 

    (c)  Any qualified physician may provide medical services, appliances and supplies to the covered Part B employee or the covered Part E employee.  A hospital or a provider of medical services or supplies may furnish appropriate services, drugs, supplies and appliances, so long as such provider possesses all applicable licenses required under State law and has not been excluded from participation in the program under subpart H of this part.  OWCP may apply a test of cost-effectiveness when it decides if appliances and supplies are necessary to treat an occupational illness or covered illness, may offset the cost of prior rental payments against a future purchase price, and may provide refurbished appliances where appropriate.  Also, OWCP may authorize payment for durable medical equipment and modifications to a home or vehicle, to the extent that OWCP deems it necessary and reasonable.  With respect to prescribed medications, OWCP may require the use of generic equivalents where they are available.  OWCP may contract with a specific provider or providers to supply non-physician medical services or supplies.

 

    (d)  In circumstances when a covered employee dies after filing a claim but before such claim is accepted, OWCP will pay for medical treatment for all accepted illnesses, retroactive to the date that the employee filed the claim, if the deceased employee’s survivor(s) files a claim that is accepted under Part B and/or Part E of EEOICPA.  If this occurs, OWCP shall only pay either the provider(s) or the employee’s estate for medical treatment that the employee obtained after filing his or her claim.

 

§ 30.401  What are the special rules for the services of chiropractors?

 

    (a)  The services of chiropractors that may be reimbursed by OWCP are limited to treatment to correct a spinal subluxation.  The costs of physical and related laboratory tests performed by or required by a chiropractor to diagnose such a subluxation are also payable.

 

    (b)  A diagnosis of spinal subluxation as demonstrated by x-ray to exist must appear in the chiropractor’s report before OWCP can consider payment of a chiropractor’s bill.

 

    (c)  A chiropractor may interpret his or her x-rays to the same extent as any other physician.  To be given any weight, the medical report must state that x-rays support the finding of spinal subluxation.  OWCP will not necessarily require submission of the x-ray, or a report of the x-ray, but the report must be available for submission on request.

 

    (d)  A chiropractor may also provide services in the nature of physical therapy under the direction of a qualified physician.

 

§ 30.402  What are the special rules for the services of clinical psychologists?

 

    A clinical psychologist may serve as a physician within the scope of his or her practice as defined by state law.  Therefore, a clinical psychologist may not serve as a physician for conditions that include a physical component unless the applicable state law allows clinical psychologists to treat physical conditions.  A clinical psychologist may also perform testing, evaluation, and other services under the direction of a qualified physician.

 

§ 30.403  Will OWCP pay for home health care, nursing home, and assisted living services?

 

    (a)  OWCP will authorize and pay for home health care claimed under section 7384t of the Act, whether or not such care constitutes skilled nursing care, so long as the care has been determined to be medically necessary.  OWCP will pay for approved periods of care by a registered nurse, licensed practical nurse, home health aide or similarly trained individual, subject to the pre-authorization requirements described in paragraph (c) of this section.

 

    (b)  OWCP will also authorize and pay for periods of nursing home and assisted living services claimed under section 7384t of the Act, so long as such services have been determined to be medically necessary, subject to the pre-authorization requirements described in paragraph (c) of this section.

 

    (c)  To file an initial claim for home health care, nursing home, or assisted living services, the beneficiary must submit Form EE-17A to OWCP and identify his or her treating physician.  OWCP then provides the treating physician with Form EE-17B, which asks the physician to submit a letter of medical necessity and verify that a timely face-to-face physical examination of the beneficiary took place.  This particular pre-authorization process must be followed only for the initial claim for home health care, nursing home, and assisted living services; any subsequent request for pre-authorization must satisfy OWCP’s usual medical necessity requirements.  If a claimant disagrees with the decision of OWCP that the claimed services are not medically necessary, he or she may utilize the adjudicatory process described in subpart D of this part.

 

§ 30.404  Will OWCP pay for transportation to obtain medical treatment?

 

    (a)  The employee is entitled to reimbursement for reasonable and necessary expenses, including transportation, incident to obtaining authorized medical services, appliances or supplies.  To determine what is a reasonable distance to travel, OWCP will consider the availability of services, the employee’s condition, and the means of transportation.  Generally, a roundtrip distance of up to 200 miles is considered a reasonable distance to travel.

 

    (b)  If travel of more than 200 miles is contemplated, or air transportation or overnight accommodations will be needed, the employee must submit a written request to OWCP for prior authorization with information describing the circumstances and necessity for such travel expenses.  OWCP will approve the request if it determines that the travel expenses are reasonable and necessary, and are incident to obtaining authorized medical services, appliances or supplies.  Requests for travel expenses that are often approved include those resulting from referrals to a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited local medical services.

 

    (c)  If a claimant disagrees with the decision of OWCP that requested travel expenses are either not reasonable or necessary, or are not incident to obtaining authorized medical services, appliances or supplies, he or she may utilize the adjudicatory process described in subpart D of this part.

 

    (d)  The standard form designated for medical travel refund requests is Form OWCP-957 and must be used to seek reimbursement under this section.  This form can be obtained from OWCP.

 

§ 30.405  After selecting a treating physician, may an employee choose to be treated by another physician instead?

 

    (a)  OWCP will provide the employee with an opportunity to designate a treating physician when it accepts the claim.  When the physician originally selected to provide treatment for an occupational illness or a covered illness refers the employee to a specialist for further medical care, the employee need not consult OWCP for approval.  In all other instances, however, the employee must submit a written request to OWCP with his or her reasons for desiring a change of physician.

 

    (b)  OWCP will approve the request if it determines that the reasons submitted are credible and supported by probative factual and/or medical evidence, as appropriate.  Requests that are often approved include those for transfer of care from a general practitioner to a physician who specializes in treating the occupational illnesses or covered illnesses covered by EEOICPA, or the need for a new physician when an employee has moved.

   

    (c)  OWCP may deny a requested change of physician if it determines that the reasons submitted are not both credible and supported by probative evidence.  If a claimant disagrees with such an informal denial, he or she may utilize the adjudicatory process described in subpart D of this part. 

 

§ 30.406  Are there any exceptions to these procedures for obtaining medical care?

 

    In cases involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart.

 

Directed Medical Examinations

 

§ 30.410  Can OWCP require an employee to be examined by another physician?

 

    (a)  OWCP sometimes needs a second opinion from a medical specialist.  The employee must submit to examination by a qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP as often and at such times and places as OWCP considers reasonably necessary.  Also, OWCP may send a case file for second opinion review to a qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP where an actual examination is not needed, or where the employee is deceased.

 

    (b)  If the initial examination is disrupted by someone accompanying the employee, OWCP will schedule another examination with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP.  The employee will not be entitled to have anyone else present at the subsequent examination unless OWCP decides that exceptional circumstances exist.  For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed.

 

    (c)  OWCP may administratively close the claim and suspend adjudication of any pending matters if the employee refuses to attend a second opinion examination.

 

§ 30.411  What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?

 

    (a)  If one medical opinion holds more probative value than the other, OWCP will base its determination of coverage on the medical opinion with the greatest probative value.  A difference in medical opinion sufficient to be considered a conflict only occurs when two reports of virtually equal weight and rationale reach opposing conclusions.

 

    (b)  If a conflict exists between the medical opinion of the employee’s physician and the medical opinion of a second opinion physician, an OWCP medical adviser or consultant, or a physician submitting an impairment evaluation that meets the criteria set out in § 30.905 of this part, OWCP shall appoint a third physician who conforms to the standards regarding conflicts of interest adopted by OWCP to make an examination or an impairment evaluation.  This is called a referee examination or a referee impairment evaluation.  OWCP will select a physician who is qualified in the appropriate specialty and who has had no prior connection with the case.  Also, a case file may be sent to a physician who conforms to the standards regarding conflicts of interest adopted by OWCP for a referee medical review where there is no need for an actual examination, or where the employee is deceased.

 

    (c)  If the initial referee examination or referee impairment evaluation is disrupted by someone accompanying the employee, OWCP will schedule another examination or impairment evaluation with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP.  The employee will not be entitled to have anyone else present at the subsequent referee examination or referee impairment evaluation unless OWCP decides that exceptional circumstances exist.  For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed.

 

    (d)  OWCP may administratively close the claim and suspend adjudication of any pending matters if the employee refuses to attend a referee medical examination.

 

§ 30.412  Who pays for second opinion and referee examinations?

 

    OWCP will pay second opinion and referee medical specialists directly.  OWCP will also reimburse the employee for all necessary and reasonable expenses incident to such an examination, including transportation costs and actual wages the employee lost for the time needed to submit to an examination required by OWCP.

 

Medical Reports

 

§ 30.415  What are the requirements for medical reports?

 

    In general, medical reports from the employee’s attending physician should include the following:

 

    (a)  Dates of examination and treatment;

 

    (b)  History given by the employee;

 

    (c)  Physical findings;

 

    (d)  Results of diagnostic tests;

 

    (e)  Diagnosis;

 

    (f)  Course of treatment;

 

    (g)  A description of any other conditions found due to the claimed occupational illness or covered illness;

 

    (h)  The treatment given or recommended for the claimed occupational illness or covered illness; and

 

    (i)  All other material findings.

 

§ 30.416  How and when should medical reports be submitted?

 

    (a)  The initial medical report (and any subsequent reports) should be made in narrative form on the physician’s letterhead stationery.  The physician should use the Form EE-7 as a guide for the preparation of his or her initial medical report in support of a claim under Part B and/or Part E of EEOICPA.  The report should bear the physician’s handwritten or electronic signature.  OWCP may require an original signature on the report.

 

    (b)  The report shall be submitted directly to OWCP as soon as possible after medical examination or treatment is received, either by the employee or the physician.

 

§ 30.417  What additional medical information may OWCP require to support continuing payment of benefits?

 

    In all cases requiring hospital treatment or prolonged care, OWCP will request detailed narrative reports from the attending physician at periodic intervals.  The physician will be asked to describe continuing medical treatment for the occupational illness or covered illness accepted by OWCP, a prognosis, and the physician’s opinion as to the continuing causal relationship between the need for additional treatment and the occupational illness or covered illness.

 

Medical Bills

 

§ 30.420  How should medical bills and reimbursement requests be submitted?

 

    Usually, medical providers submit their bills directly for processing.  The rules for submitting and processing provider bills and reimbursement requests are stated in subpart H of this part.  An employee requesting reimbursement for out-of-pocket medical expenses must submit a Form OWCP-915 and meet the requirements described in § 30.702.

 

§ 30.421  What are the time frames for submitting bills and reimbursement requests?

 

    To be considered for payment, bills and reimbursement requests must be submitted by the end of the calendar year after the year when the expense was incurred, or by the end of the calendar year after the year when OWCP first accepted the claim as compensable under subpart D of this part, whichever is later.

 

§ 30.422  If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee?

 

    (a)  The OWCP fee schedule sets maximum limits on the amounts payable for many services.  The employee may be only partially reimbursed for out-of-pocket medical expenses because the amount he or she paid to the medical provider for a service exceeds the maximum allowable charge set by the OWCP fee schedule.

 

    (b)  If this happens, the employee will be advised of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee’s account, the amount he or she paid that exceeds the maximum allowable charge.  The provider that the employee paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.

 

    (c)  If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the charge that OWCP allows, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP.  OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances of the case.

 

Subpart F--Survivors; Payments and Offsets; Overpayments

 

Survivors

 

§ 30.500  What special statutory definitions apply to survivors under EEOICPA?

 

    (a)  For the purposes of paying compensation to survivors under both Parts B and E of EEOICPA, OWCP will use the following definitions:

    (1)  Surviving spouse means the wife or husband of a deceased covered Part B employee or deceased covered Part E employee who was married to that individual for the 365 consecutive days immediately prior to the death of that individual.

    (2)  Child of a deceased covered Part B employee or deceased covered Part E employee means only a biological child, a stepchild or an adopted child of that individual. 

 

    (b)  For the purposes of paying compensation to survivors only under Part B of  EEOICPA, OWCP will use the following additional definitions:

    (1)  Parent includes fathers and mothers of a deceased covered Part B employee through adoption.

    (2)  Grandchild means a child of a child of a deceased covered Part B employee.

    (3)  Grandparent means a parent of a parent of a deceased covered Part B employee.

 

    (c)  For the purposes of paying compensation to survivors under Part E of EEOICPA, OWCP will use the following additional definitions:

    (1)  Covered child means a child that is, as of the date of the deceased covered Part E employee’s death, either under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in one or more educational institutions since attaining the age of 18 years, or any age and incapable of self-support.  A child’s marital status or dependency on the covered employee for support is irrelevant to his or her eligibility for benefits as a covered child under Part E.

    (2)  Incapable of self-support means that the child must have been physically and/or mentally incapable of self-support at the time of the covered employee’s death.

 

§ 30.501  What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?

 

    (a)  Under Part B of the Act, if OWCP determines that a survivor or survivors are entitled to receive compensation under EEOICPA because a covered Part B employee who would otherwise have been entitled to benefits is deceased, that compensation will be disbursed as follows, subject to the qualifications set forth in § 30.5(hh)(3):

    (1)  If there is a surviving spouse, the compensation shall be paid to that individual.

    (2)  If there is no surviving spouse, the compensation shall be paid in equal shares to all children of the deceased covered Part B employee.

    (3)  If there is no surviving spouse and no children, the compensation shall be paid in equal shares to the parents of the deceased covered Part B employee.

    (4)  If there is no surviving spouse, no children and no parents, the compensation shall be paid in equal shares to all grandchildren of the deceased covered Part B employee.

    (5)  If there is no surviving spouse, no children, no parents and no grandchildren, the compensation shall be paid in equal shares to the grandparents of the deceased covered Part B employee.

    (6)  Notwithstanding paragraphs (a)(1) through (a)(5) of this section, if there is a surviving spouse and at least one child of the deceased covered Part B employee who is a minor at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, half of the compensation shall be paid to the surviving spouse, and the other half of the compensation shall be paid in equal shares to each child of the deceased covered Part B employee who is a minor at the time of payment.

 

    (b)  Under Part E of the Act, if OWCP determines that a survivor or survivors are entitled to receive compensation under EEOICPA because a covered Part E employee who would otherwise have been entitled to benefits is deceased, that compensation will be disbursed as follows, subject to the qualifications set forth in § 30.5(hh)(3):

    (1)  If there is a surviving spouse, the compensation shall be paid to that individual.

    (2)  If there is no surviving spouse, the compensation shall be paid in equal shares to all “covered” children of the deceased covered Part E employee.

    (3)  Notwithstanding paragraphs (b)(1) and (b)(2) of this section, if there is a surviving spouse and at least one “covered” child of the deceased covered Part E employee who is living at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, then half of such payment shall be made to such surviving spouse, and the other half of such payment shall be made in equal shares to each “covered” child of the employee who is living at the time of payment.

 

§ 30.502  When is entitlement for survivors determined for purposes of EEOICPA?

 

    Entitlement to any lump-sum payment for survivors under the EEOICPA, other than for “covered” children under Part E, will be determined as of the time OWCP makes such a payment.  As noted in § 30.500(c)(1), a child of a deceased Part E employee will only qualify as a “covered” child of that individual if he or she satisfied one of the additional statutory criteria for a “covered” child as of the date of the deceased Part E employee’s death.

 

Payment of Claims and Offset for Certain Payments

 

§ 30.505  What procedures will OWCP follow before it pays any compensation?

 

    (a)  In cases involving the approval of a claim, whether in whole or in part, OWCP shall take all necessary steps to determine the amount of any offset or coordination of EEOICPA benefits before paying any benefits, and to verify the identity of the covered Part B employee, the covered Part E employee, or the eligible surviving beneficiary or beneficiaries.  To perform these tasks, OWCP may conduct any investigation, require any claimant to provide or execute any affidavit, record or document, or authorize the release of any information as OWCP deems necessary to ensure that the compensation payment is made in the correct amount and to the correct person or persons.  OWCP shall also require every claimant under Part B of the Act to execute and provide any necessary affidavit described in § 30.620 of these regulations.  Should a claimant fail or refuse to execute an affidavit or release of information, or fail or refuse to provide a requested document or record or to provide access to information, such failure or refusal may be deemed to be a rejection of the payment, unless the claimant does not have and cannot obtain the legal authority to provide, release, or authorize access to the required information, records, or documents.

 

    (b)  To determine the amount of any offset, OWCP shall require the covered Part B employee, covered Part E employee or each eligible surviving beneficiary filing a claim under this part to execute and provide an affidavit (or declaration made under oath on Form EE-1 or EE-2) reporting the amount of any payment made pursuant to a final judgment or settlement in litigation seeking damages.  Even if someone other than the covered Part B employee or the covered Part E employee receives a payment pursuant to a final judgment or settlement in litigation seeking damages (e.g., the surviving spouse of a deceased covered Part B employee or a deceased covered Part E employee), the receipt of any such payment must be reported.

    (1)  For the purposes of this paragraph (b) only, “litigation seeking damages” refers to any request or demand for money (other than for workers’ compensation) by the covered Part B employee or the covered Part E employee, or by another individual if the covered Part B employee or the covered Part E employee is deceased, made or sought in a civil action or in anticipation of the filing of a civil action, for injuries incurred on account of an exposure for which compensation is payable under EEOICPA.  This term does not also include any request or demand for money made or sought pursuant to a life insurance or health insurance contract, or any request or demand for money made or sought by an individual other than the covered Part B employee or the covered Part E employee in that individual’s own right (e.g., a spouse’s claim for loss of consortium), or any request or demand for money made or sought by the covered Part B employee or the covered Part E employee (or the estate of a deceased covered Part B employee or deceased covered Part E employee) not for injuries incurred on account of an exposure for which compensation is payable under the EEOICPA (e.g., a covered Part B employee’s or a covered Part E employee’s claim for damage to real or personal property).

    (2)  If a payment has been made pursuant to a final judgment or settlement in litigation seeking damages, OWCP shall subtract a portion of the dollar amount of such payment from the benefit payments to be made under EEOICPA.  OWCP will calculate the amount to be subtracted from the benefit payments in the following manner:

    (i)  OWCP will first determine the value of the payment made pursuant to either a final judgment or settlement in litigation seeking damages by adding the dollar amount of any monetary damages (excluding contingent awards) and any medical expenses for treatment provided on or after the date the covered Part B employee or the covered Part E employee filed a claim for EEOICPA benefits that were paid for under the final judgment or settlement.  In the event that these payments include a “structured” settlement (where a  party makes an initial cash payment and also arranges, usually through the purchase of an annuity, for payments in the future), OWCP will usually accept the cost of the annuity to the purchaser as the dollar amount of the right to receive the future payments.

    (ii)  OWCP will then make certain deductions from the above dollar amount to arrive at the dollar amount to be subtracted from any unpaid EEOICPA benefits.  Allowable deductions consist of attorney’s fees OWCP deems reasonable, and itemized costs of suit (out-of-pocket expenditures not part of the normal overhead of a law firm’s operation like filing fees, travel expenses, witness fees, and court reporter costs for transcripts) provided that adequate supporting documentation is submitted to OWCP.

    (iii)  The EEOICPA benefits that will be reduced will consist of any unpaid lump-sum payments payable in the future and medical benefits payable in the future.  In those cases where it has not yet paid EEOICPA benefits, OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the lump-sum payments first.  If the amount to be subtracted exceeds the lump-sum payments, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus.  This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part B employee or the covered Part E employee for any ongoing EEOICPA medical treatment to the remaining surplus until it is absorbed.  In addition to this reduction of ongoing EEOICPA medical benefits, OWCP will not be the first payer for any medical expenses that are the responsibility of another party (who will instead be the first payer) as part of a final judgment or settlement in litigation seeking damages.

    (3)  The above reduction of EEOICPA benefits will not occur if an EEOICPA claimant had his or her award under section 5 of RECA reduced by the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages.  It will also not occur if an EEOICPA claimant’s prior payment of EEOICPA benefits, or his or her workers’ compensation benefits, were offset to reflect the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages.  However, if the prior reduction or offset of the above benefits did not reflect the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages, OWCP will reduce currently payable EEOICPA benefits by the amount of any surplus final judgment or settlement payment that remains.

 

    (c)  Except as provided in § 30.506(b) of these regulations, when OWCP has verified the identity of every claimant who is entitled to the compensation payment, or to a share of the compensation payment, and has determined the correct amount of the payment or the share of the payment, OWCP shall notify every claimant, every duly appointed guardian or conservator of a claimant, or every person with power of attorney for a claimant, and require such person or persons to complete a Form EN-20 providing  payment information.  Such form shall be signed and returned to OWCP within sixty days of the date of the form or within such greater period as may be allowed by OWCP.  Failure to sign and return the form within the required time may be deemed to be a rejection of the payment.  If the claimant dies before the payment is received, the person who receives the payment shall return it to OWCP for redetermination of the correct disbursement of the payment.  No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.

 

    (d)  The total amount of compensation (other than medical benefits) under Part E that can be paid to all claimants as a result of the exposure of a covered Part E employee shall not be more than $250,000 in any circumstances.

 

§ 30.506  To whom and in what manner will OWCP pay compensation?

 

    (a)  Except with respect to claims under Part B of the Act for beryllium sensitivity, payment shall be made to the covered Part B employee or the covered Part E employee, to the duly appointed guardian or conservator of that individual, or to the person with power of attorney for that individual, unless the covered Part B employee or covered Part E employee is deceased at the time of the payment.  In all cases involving a deceased covered Part B employee or deceased covered Part E employee, payment shall be made to the eligible surviving beneficiary or beneficiaries, to the duly appointed guardian or conservator of the eligible surviving beneficiary or beneficiaries, or to every person with power of attorney for an eligible surviving beneficiary, in accordance with the terms and conditions specified in sections 7384s(e), 7384u(e), and 7385s-3(c) and (d) of EEOICPA.

 

    (b)  Under Part B of the Act, compensation for any consequential injury, illness, impairment or disease is limited to payment of medical benefits for that injury, illness, impairment or disease.  Under Part E of the Act, compensation for any consequential injury, illness, impairment or disease consists of medical benefits for that injury, illness, impairment or disease, as well as any additional monetary benefits that are consistent with the terms of § 30.505(d).

 

    (c)  Rejected compensation payments, or shares of compensation payments, shall not be distributed to other eligible surviving beneficiaries, but shall be returned to the Fund.

 

    (d)  No covered Part B employee may receive more than one lump-sum payment under Part B of EEOICPA for any occupational illnesses he or she contracted.  However, any individual, including a covered Part B employee who has received a lump-sum payment for his or her own occupational illness or illnesses, may receive one lump-sum payment for each deceased covered Part B employee for whom he or she qualifies as an eligible surviving beneficiary under Part B of the Act.

 

§ 30.507  What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA?

 

    The establishment of beryllium sensitivity does not entitle a covered Part B employee, or the eligible surviving beneficiary or beneficiaries of a deceased covered Part B employee, to any lump-sum payment provided for under Part B.  Instead, a covered Part B employee whose sole accepted occupational illness is beryllium sensitivity shall receive beryllium sensitivity monitoring, as well as medical benefits for the treatment of this occupational illness in accordance with § 30.400 of these regulations.

 

§ 30.508  What is beryllium sensitivity monitoring?

 

    Beryllium sensitivity monitoring shall consist of medical examinations to confirm and monitor the extent and nature of a covered Part B employee’s beryllium sensitivity.  Monitoring shall also include regular medical examinations, with diagnostic testing, to determine if the covered Part B employee has established chronic beryllium disease.

 

§ 30.509  Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?

 

    (a)  If a covered Part E employee dies after filing a claim but before monetary benefits are paid under Part E of the Act, and his or her death is from a cause other than a covered illness, his or her survivor can choose to receive either the survivor benefits payable on account of the death of that covered Part E employee, or the monetary benefits that would otherwise have been payable to the covered Part E employee.

 

    (b)  For the purposes of this section only, a death “from a cause other than a covered illness” refers only to a death that was solely caused by a non-covered illness or illnesses.  Therefore, the choice referred to in paragraph (a) of this section will not be available if a covered illness contributed to the death of the covered Part E employee in any manner.  In those instances, survivor benefits will still be payable to the claimant, but he or she cannot choose to receive the monetary benefits that would have otherwise been payable to the deceased covered Part E employee in lieu of survivor benefits.

 

    (c)  OWCP only makes impairment determinations based on rationalized medical evidence in the case file that is sufficiently detailed and meets the various requirements for the many different types of impairment determinations possible under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides).  Therefore, OWCP will only make an impairment determination for a deceased covered Part E employee pursuant to this section if the medical evidence of record is sufficient to satisfy the pertinent requirements in the AMA’s Guides and subpart J of this part.

 

Overpayments

 

§ 30.510  How does OWCP notify an individual of a payment made on a claim?

 

    (a)  In addition to providing narrative descriptions to recipients of benefits paid or payable, OWCP includes on each check a clear indication of the reason the payment is being made.  For payments sent by electronic funds transfer, a notification of the date and amount of payment appears on the statement from the recipient’s financial institution.

 

    (b)  By these means, OWCP puts the recipient on notice that a payment was made and the amount of the payment.  If the amount received differs from the amount indicated on the written notice or bank statement, the recipient is responsible for notifying OWCP of the difference.  Absent affirmative evidence to the contrary, the recipient will be presumed to have received the notice of payment, whether mailed or transmitted electronically.

 

§ 30.511  What is an “overpayment” for purposes of EEOICPA?

 

    An “overpayment” is any amount of compensation paid under sections 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the EEOICPA to a recipient that constitutes, as of the time OWCP makes such payment:

 

    (a)  Payment where no amount is payable under this part; or

 

    (b)  Payment in excess of the correct amount determined by OWCP.

 

§ 30.512  What does OWCP do when an overpayment is identified?

 

    Before seeking to recover an overpayment or adjust benefits, OWCP will advise the recipient of the overpayment in writing that:

 

    (a)  The overpayment exists, and the amount of overpayment;

 

    (b)  A preliminary finding shows either that the recipient was or was not at fault in the creation of the overpayment;

 

    (c)  He or she has the right to inspect and copy OWCP records relating to the overpayment; and

 

    (d)  He or she has the right to present written evidence which challenges the fact or amount of the overpayment, and/or challenges the preliminary finding that he or she was at fault in the creation of the overpayment.  He or she may also request that recovery of the overpayment be waived.  Any submission of evidence or request that recovery of the overpayment be waived must be presented to OWCP within 30 days of the date of the written notice of overpayment.

 

§ 30.513  Under what circumstances may OWCP waive recovery of an overpayment?

 

    (a)  OWCP may consider waiving recovery of an overpayment only if the recipient was not at fault in accepting or creating the overpayment.  Recipients of benefits paid under  EEOICPA are responsible for taking all reasonable measures to ensure that payments received from OWCP are proper.  The recipient must show good faith and exercise a high degree of care in reporting events which may affect entitlement to or the amount of benefits.  A recipient who has done any of the following will be found to be at fault with respect to creating an overpayment:

    (1)  Made an incorrect statement as to a material fact which he or she knew or should have known to be incorrect; or

    (2)  Failed to provide information which he or she knew or should have known to be material; or

    (3)  Accepted a payment which he or she knew or should have known to be incorrect.  (This provision applies only to the overpaid individual.)

 

    (b)  Whether or not OWCP determines that a recipient was at fault with respect to the creation of an overpayment depends on the circumstances surrounding the overpayment.  The degree of care expected may vary with the complexity of those circumstances and the recipient’s capacity to realize that he or she is being overpaid.

 

§ 30.514  If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it?

 

    If OWCP finds that the recipient of an overpayment was not at fault, repayment will still be required unless:

 

    (a)  Adjustment or recovery of the overpayment would defeat the purpose of the Act (see § 30.516); or

 

    (b)  Adjustment or recovery of the overpayment would be against equity and good conscience (see § 30.517).

 

§ 30.515  Is a recipient responsible for an overpayment that resulted from an error made by OWCP?

 

    (a)  The fact that OWCP may have erred in making the overpayment does not by itself relieve the recipient of the overpayment from liability for repayment if the recipient also was at fault in accepting the overpayment.

 

    (b)  However, OWCP may find that the recipient was not at fault if failure to report an event affecting compensation benefits, or acceptance of an incorrect payment, occurred because:

    (1)  The recipient relied on misinformation given in writing by OWCP regarding the interpretation of a pertinent provision or EEOICPA of this part; or   

    (2)  OWCP erred in calculating either the percentage of impairment or wage-loss under Part E of EEOICPA.

 

§ 30.516  Under what circumstances would recovery of an overpayment defeat the purpose of the Act?

 

    Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to the recipient because:

 

    (a)  The recipient from whom OWCP seeks recovery needs substantially all of his or her current income to meet current ordinary and necessary living expenses; and

 

    (b)  The recipient’s assets do not exceed two months’ expenditures as determined by OWCP using the Bureau of Labor Statistics Consumer Expenditure Survey tables.

 

§ 30.517  Under what circumstances would recovery of an overpayment be against equity and good conscience?

 

    (a)  Recovery of an overpayment is considered to be against equity and good conscience when the recipient would experience severe financial hardship in attempting to repay the debt.

 

    (b)  Recovery of an overpayment is also considered to be against equity and good conscience when the recipient, in reliance on such payments or on notice that such payments would be made, gives up a valuable right or changes his or her position for the worse.  In making such a decision, OWCP does not consider the recipient’s current ability to repay the overpayment.

    (1)  To establish that a valuable right has been relinquished, it must be shown that the right was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in reliance on the payments or on the notice of payment.  Gratuitous transfers of funds to other individuals are not considered relinquishments of valuable rights.

    (2)  To establish that a recipient’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.

 

§ 30.518  Can OWCP require the recipient of the overpayment to submit additional financial information?

 

    (a)  The recipient of the overpayment is responsible for providing information about income, expenses and assets as specified by OWCP.  This information is needed to determine whether or not recovery of an overpayment would defeat the purpose of the Act, or would be against equity and good conscience.  This information will also be used to determine the repayment schedule, if necessary.

 

    (b)  Failure to submit this requested information within 30 days of the request shall result in denial of waiver, and no further request for waiver shall be considered until the requested information is furnished.

 

§ 30.519  How does OWCP communicate its final decision concerning recovery of an overpayment?

 

    (a)  After considering any written documentation or argument submitted to OWCP within the 30-day period set out in § 30.512(d), OWCP will issue a final decision on the overpayment.  OWCP will send a copy of the final decision to the individual from whom recovery is sought and his or her representative, if any.

 

    (b)  The provisions of subpart D of this part do not apply to any decision regarding the recovery of an overpayment.

 

§ 30.520  How are overpayments collected?

 

    (a)  When an overpayment has been made to a recipient who is entitled to further payments, the recipient shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is called to same.  If no refund is made, OWCP shall recover the overpayment by reducing any further lump-sum payments due currently or in the future, taking into account the financial circumstances of the recipient, and any other relevant factors, so as to minimize any hardship.  Should the recipient die before collection has been completed, further collection shall be made by decreasing later payments, if any, payable under EEOICPA with respect to the underlying occupational illness or covered illness.

 

    (b)  When an overpayment has been made to a recipient and OWCP is unable to recover the overpayment by reducing compensation due currently, the recipient shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is called to same.  The overpayment is subject to the provisions of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et seq.), and may be reported to the Internal Revenue Service as income.  If the recipient fails to make such refund, OWCP may recover the overpayment through any available means, including offset of salary, annuity benefits, or other Federal payments, including tax refunds as authorized by the Tax Refund Offset Program, or referral of the debt to a collection agency or to the Department of Justice.

 

Subpart G--Special Provisions

 

Representation

 

§ 30.600  May a claimant designate a representative?

 

    (a)  The claims process under this part is informal, and OWCP acts as an impartial evaluator of the evidence.  A claimant need not be represented to file a claim or receive a payment.  Nevertheless, a claimant may appoint one individual to represent his or her interests, but the appointment must be in writing.

 

    (b)  There can be only one representative at any one time, so after one representative has been properly appointed, OWCP will not recognize another individual as a representative until the claimant withdraws the authorization of the first individual.  In addition, OWCP will recognize only certain types of individuals (see § 30.601).  For the purposes of paragraph (b) of this section, a “representative” does not include a person who only has a power of attorney to act on behalf of a claimant.

 

    (c)  A properly appointed representative who is recognized by OWCP may make a request or give direction to OWCP regarding the claims process, including a hearing.  This authority includes presenting or eliciting evidence, making arguments on facts or the law, and obtaining information from the case file, to the same extent as the claimant.

    (1)  Any notice requirement contained in this part or EEOICPA is fully satisfied if served on the representative, and has the same force and effect as if sent to the claimant.

    (2)  A representative does not have authority to sign the Form EE-1 (described in § 30.100(a)) or the Form EE-2 (described in § 30.101(a)) for his or her client.  A representative also does not have authority to sign the Form EN-20 (described in § 30.505(c)) for his or her client.

 

§ 30.601  Who may serve as a representative?

 

    A claimant may authorize any individual to represent him or her in regard to a claim under EEOICPA, unless that individual’s service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208) or the standards regarding conflicts of interest adopted by OWCP.  Under those standards, authorized representatives are prohibited from having private, non-representational financial interests with respect to their client’s EEOICPA claims.  This does not include their fee for serving as a representative.  A federal employee may act as a representative only:

 

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

 

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

 

§ 30.602  Who is responsible for paying the representative’s fee?

 

    A representative may charge the claimant a fee for services and for costs associated with the representation before OWCP.  The claimant is solely responsible for paying the fee and other costs.  OWCP will not reimburse the claimant, nor is it in any way liable for the amount of the fee and costs.

 

§ 30.603  Are there any limitations on what the representative may charge the claimant for his or her services?

 

    (a)  Notwithstanding any contract, the representative may not receive, for services rendered in connection with a claim pending before OWCP, more than the percentages of the lump-sum payment made to the claimant set out in paragraph (b) of this section, exclusive of costs and expenses.

 

    (b)  The percentages referred to in paragraph (a) of this section are:

    (1)  2 percent for the filing of an initial claim with OWCP, provided that the representative was retained prior to the filing of the initial claim; plus

    (2)  10 percent of the difference between the lump-sum payment made to the claimant and the amount proposed in the recommended decision with respect to objections to a recommended decision.

 

    (c)(1)  Any representative who violates this section shall be fined not more than $5,000.

    (2)  The authority to prosecute violations of this limitation lies with the Department of Justice.

 

    (d)  The fee limitations described in this section shall not apply with respect to representative services that are rendered in connection with a petition filed with a U.S. District Court seeking review of an OWCP decision that is final pursuant to § 30.316(d), or with respect to any subsequent appeal in such a proceeding.

 

Third Party Liability

 

§ 30.605  What rights does the United States have upon payment of compensation under  EEOICPA?

 

    If an occupational illness or covered illness for which compensation is payable under  EEOICPA is caused, wholly or partially, by someone other than a federal employee acting within the scope of his or her employment, a DOE contractor or subcontractor, a beryllium vendor, an atomic weapons employer or a RECA section 5 mine or mill, the United States is subrogated for the full amount of any payment of compensation under EEOICPA to any right or claim that the individual to whom the payment was made may have against any person or entity on account of such occupational illness or covered illness.

 

§ 30.606  Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP?

 

    Any person who has filed an EEOICPA claim that has been accepted by OWCP (whether or not compensation has been paid), or who has received EEOICPA benefits in connection with a claim filed by another, is required to notify OWCP of the receipt of money or other property as a result of a settlement or judgment in connection with the circumstances of that claim.

 

§ 30.607  How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery?

 

    In this situation, the recovery to be reported is the present value of the right to receive all of the payments included in the structured settlement, allocated in the case of multiple recipients in the same manner as single payment recoveries.

 

§ 30.608  How does the United States calculate the amount to which it is subrogated?

 

    The subrogated amount of a specific claim consists of the total money paid by OWCP from the Energy Employees Occupational Illness Compensation Fund with respect to that claim to or on behalf of a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary, less charges for any medical file review (i.e., the physician did not examine the employee) done at the request of OWCP.  Charges for medical examinations also may be subtracted if the covered Part B employee, covered Part E employee or an eligible surviving beneficiary establishes that the examinations were required to be made available to the covered Part B employee or covered Part E employee under a statute other than EEOICPA.

 

§ 30.609  Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP?

 

    Since an injury caused by medical malpractice in treating an occupational illness or covered illness compensable under EEOICPA is also covered under EEOICPA, any recovery in a suit alleging such an injury is treated as a recovery that must be reported to OWCP.

 

§ 30.610  Are payments to a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?

 

    Since payments received by a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary pursuant to an insurance policy purchased by someone other than a liable third party are not payments in satisfaction of liability for causing an occupational illness or covered illness compensable under the Act, they are not considered a recovery that must be reported to OWCP.

 

§ 30.611  If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?

 

    (a)  All medical conditions accepted by OWCP in connection with a single claim are treated as the same illness for the purpose of computing the amount which the United States is entitled to offset in connection with the receipt of a recovery from a third party, except that an injury caused by medical malpractice in treating an illness covered under  EEOICPA will be treated as a separate injury.

 

    (b)  If an illness covered under EEOICPA is caused under circumstances creating a legal liability in more than one person, other than the United States, a DOE contractor or subcontractor, a beryllium vendor or an atomic weapons employer, to pay damages, OWCP will determine whether recoveries received from one or more third parties should be attributed to separate conditions for which compensation is payable in connection with a single EEOICPA claim.  If such an attribution is both practicable and equitable, as determined by OWCP, in its discretion, the conditions will be treated as separate injuries for purposes of calculating the amount to which the United States is subrogated.

 

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers

 

§ 30.615  What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA?

 

    (a)  A tort suit (other than an administrative or judicial proceeding for workers’ compensation) that includes a claim arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation, filed against a beryllium vendor or an atomic weapons employer, by a covered Part B employee or an eligible surviving beneficiary or beneficiaries of a deceased covered Part B employee, will disqualify that otherwise eligible individual or individuals from receiving benefits under Part B of EEOICPA unless such claim is terminated in accordance with the requirements of §§ 30.616 through 30.619 of these regulations.

 

    (b)  The term “claim arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation” used in paragraph (a) of this section includes a claim that is derivative of a covered Part B employee’s employment-related exposure to beryllium or radiation, such as a claim for loss of consortium raised by a covered Part B employee’s spouse.

 

    (c)  If all claims arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation are terminated in accordance with the requirements of §§ 30.616 through 30.619 of these regulations, proceeding with the remaining portion of the tort suit filed against a beryllium vendor or an atomic weapons employer will not disqualify an otherwise eligible individual or individuals from receiving benefits under Part B of EEOICPA.

 

§ 30.616  What happens if this type of tort suit was filed prior to October 30, 2000?

 

    (a)  If a tort suit described in § 30.615 was filed prior to October 30, 2000, the claimant or claimants will not be disqualified from receiving any EEOICPA benefits to which they may be found entitled if the tort suit was terminated in any manner prior to December 28, 2001.

 

    (b)  If a tort suit described in § 30.615 was filed prior to October 30, 2000 and was pending as of December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA unless they dismissed all claims arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation that were included in the tort suit prior to December 31, 2003.

 

§ 30.617  What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?

 

    (a)  If a tort suit described in § 30.615 was filed during the period from October 30, 2000 through December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA unless they dismiss all claims arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation that are included in the tort suit on or before the last permissible date described in paragraph (b) of this section.

 

    (b)  The last permissible date is the later of:

    (1)  April 30, 2003; or

    (2)  The date that is 30 months after the date the claimant or claimants first became aware that an illness of the covered Part B employee may be connected to his or her exposure to beryllium or radiation covered by EEOICPA.  For purposes of determining when this 30-month period begins, “the date the claimant or claimants first became aware” will be deemed to be the date they received either a reconstructed dose from NIOSH, or a diagnosis of a covered beryllium illness, as applicable.

 

§ 30.618  What happens if this type of tort suit was filed after December 28, 2001?

 

    (a)  If a tort suit described in § 30.615 was filed after December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA if a judgment is entered against them.

 

    (b)  If a tort suit described in § 30.615 was filed after December 28, 2001 and a judgment has not yet been entered against the claimant or claimants, they will also be disqualified from receiving any benefits under Part B of EEOICPA unless, prior to entry of any judgment, they dismiss all claims arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation that are included in the tort suit on or before the last permissible date described in paragraph (c) of this section.

 

    (c)  The last permissible date is the later of:

    (1)  April 30, 2003; or

    (2)  The date that is 30 months after the date the claimant or claimants first became aware that an illness of the covered Part B employee may be connected to his or her exposure to beryllium or radiation covered by EEOICPA.  For purposes of determining when this 30-month period begins, “the date the claimant or claimants first became aware” will be deemed to be the date they received either a reconstructed dose from NIOSH, or a diagnosis of a covered beryllium illness, as applicable.

 

§ 30.619  Do all the parties to this type of tort suit have to take these actions?

 

    The type of tort suits described in § 30.615 may be filed by more than one individual, each with a different cause of action.  For example, a tort suit may be filed against a beryllium vendor by both a covered Part B employee and his or her spouse, with the covered Part B employee claiming for chronic beryllium disease and the spouse claiming for loss of consortium due to the covered Part B employee’s exposure to beryllium.  However, since the spouse of a living covered Part B employee could not be an eligible surviving beneficiary under Part B of  EEOICPA, the spouse would not have to comply with the termination requirements of §§ 30.616 through 30.618.  A similar result would occur if a tort suit were filed by both the spouse of a deceased covered Part B employee and other family members (such as children of the deceased covered part B employee).  In this case, the spouse would be the only eligible surviving beneficiary of the deceased covered Part B employee under Part B of the EEOICPA because the other family members could not be eligible for benefits while he or she was alive.  As a result, the spouse would be the only party to the tort suit who would have to comply with the termination requirements of §§ 30.616 through 30.618.

 

§ 30.620  How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of  EEOICPA?

 

    Prior to authorizing payment on a claim under Part B of EEOICPA, OWCP will require each claimant to execute and provide an affidavit stating if he or she filed a tort suit (other than an administrative or judicial proceeding for workers’ compensation) against either a beryllium vendor or an atomic weapons employer that included a claim arising out of a covered Part B employee’s employment-related exposure to beryllium or radiation, and if so, the current status of such tort suit.  OWCP may also require the submission of any supporting evidence necessary to confirm the particulars of any affidavit provided under this section.

 

Coordination of Part E Benefits with State Workers’ Compensation Benefits

 

§ 30.625  What does “coordination of benefits” mean under Part E of EEOICPA?

 

    In general, “coordination of benefits” under Part E of the Act occurs when compensation to be received under Part E is reduced by OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect certain benefits the beneficiary receives under a state workers’ compensation program for the same covered illness.

 

§ 30.626  How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers’ compensation programs?

 

    (a)  OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits.

 

    (b)  To determine the amount of any reduction of EEOICPA compensation, OWCP shall require the covered Part E employee or each eligible surviving beneficiary filing a claim under Part E to execute and provide affidavits reporting the amount of any benefit received pursuant to a claim filed in a state workers’ compensation program for the same covered illness.

 

    (c)  If a covered Part E employee or a survivor of such employee receives benefits through a state workers’ compensation program pursuant to a claim for the same covered illness, OWCP shall reduce a portion of the dollar amount of such state workers’ benefit from the compensation payable under Part E.  OWCP will calculate the net amount of the state workers’ compensation benefit amount to be subtracted from the compensation payment under Part E in the following manner:

    (1)  OWCP will first determine the dollar value of the benefits received by that individual from a state workers’ compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness.

    (2)  OWCP will then make certain deductions from the above dollar benefit received under a state workers’ compensation program to arrive at the dollar amount that will be subtracted from any compensation payable under Part E of EEOICPA.

    (i)  Allowable deductions consist of reasonable costs in obtaining state workers’ compensation benefits incurred by that individual, including but not limited to attorney’s fees OWCP deems reasonable and itemized costs of suit (out-of-pocket expenditures not part of the normal overhead of a law firm’s operation like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to OWCP for its consideration.

    (ii)  The EEOICPA benefits that will be reduced will consist of any unpaid monetary payments payable in the future and medical benefits payable in the future.  In those cases where it has not yet paid EEOICPA benefits under Part E, OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first.  If the amount to be subtracted exceeds the monetary payments currently payable, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus.  This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing EEOICPA medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).

    (3)  The above coordination of benefits will not occur if the beneficiary under a state workers’ compensation program receives state workers’ compensation benefits for both a covered and a non-covered illness arising out of and in the course of the same work-related incident.

 

§ 30.627  Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits?

 

    A waiver to the requirement to coordinate Part E benefits with benefits paid under a state workers’ compensation program may be granted if OWCP determines that the administrative costs and burdens of coordinating benefits in a particular case or class of cases justifies the waiver.  This decision is exclusively within the discretion of OWCP.

 

Subpart H--Information for Medical Providers

 

Medical Records and Bills

 

§ 30.700  In general, what responsibilities do providers have with respect to enrolling with OWCP, seeking authorization to provide services, billing, and retaining medical records?

 

    (a)  All providers must enroll with OWCP or its designated bill processing agent (hereinafter OWCP in this subpart) to have access to the automated authorization system and to submit medical bills to OWCP.  To enroll, the provider must complete and submit a Form OWCP-1168 to the appropriate location noted on that form.  By completing and submitting this form, providers certify that they satisfy all applicable federal and state licensure and regulatory requirements that apply to their specific provider or supplier type.  The provider must maintain documentary evidence indicating that it satisfies those requirements.  The provider is also required to notify OWCP immediately if any information provided to OWCP in the enrollment process changes.  Federal government medical officers, private physicians and hospitals are also required to keep records of all cases treated by them under EEOICPA so they can supply OWCP with a history of the claimed occupational illness or covered illness, a description of the nature and extent of the claimed occupational illness or covered illness, the results of any diagnostic studies performed and the nature of the treatment rendered.  This requirement terminates after a provider has supplied OWCP with the above-noted information, and otherwise terminates ten years after the record was created.

 

    (b)  Where a medical provider intends to bill for a procedure where prior authorization is required, authorization must be requested from OWCP.

 

    (c)  After enrollment, a provider must submit all medical bills to OWCP through its bill processing portal and include the Provider Number/ID obtained through enrollment or other identifying number required by OWCP.

 

§ 30.701  How are medical bills to be submitted?

 

    (a)  All charges for medical and surgical treatment, appliances or supplies furnished to employees, except for treatment and supplies provided by nursing homes, shall be supported by medical evidence as provided in § 30.700.  OWCP may withhold payment for services until such report or evidence is provided.  The physician or provider shall itemize the charges on Form OWCP-1500 or CMS-1500 (for professional charges or medicinal drugs dispensed in the office), Form OWCP-04 or UB-04 (for hospitals), an electronic or paper-based bill that includes required data elements (for pharmacies) or other form as warranted, and submit the form or bill promptly to OWCP.

   

    (b)  The provider shall identify each service performed using the Physician’s Current Procedural Terminology (CPT) code, the Healthcare Common Procedure Coding System (HCPCS) code, the National Drug Code (NDC) number, or the Revenue Center Code (RCC), with a brief narrative description.  OWCP has discretion to determine which of these codes may be utilized in the billing process.  OWCP also has the authority to create and supply specific procedure codes that will be used by OWCP to better describe and allow specific payments for special services.  These OWCP-created codes will be issued to providers by OWCP as appropriate and may only be used as authorized by OWCP.  For example, a physician conducting a referee or second opinion examination as described in §§ 30.410 through 30.412 will be furnished an OWCP-created code.  A provider may not use an OWCP-created code for other types of medical examinations or services.  When no code is submitted to identify the services performed, the bill will be returned to the provider and/or denied.

 

    (c)  For professional charges billed on Form OWCP-1500 or CMS-1500, the provider shall also state each diagnosed condition and furnish the corresponding diagnostic code using the “International Classification of Disease, 9th Edition, Clinical Modification” (ICD-9-CM), or as revised.  A separate bill shall be submitted when the employee is discharged from treatment or monthly, if treatment for the occupational illness or covered illness is necessary for more than 30 days.

    (1)(i)  Hospitals shall submit charges for both inpatient and outpatient medical and surgical treatment or supplies promptly to OWCP on Form OWCP-04 or UB-04.

    (ii)  OWCP may adopt a Home Health Prospective Payment System (HHPPS), as developed and implemented by the Centers for Medicare and Medicaid Services (CMS) within HHS for Medicare, while modifying the allowable costs under Medicare to account for deductibles and other additional costs that are covered by EEOICPA.  If adopted, home health care providers will be required to submit bills on Form OWCP-04 or UB-04 and to use Health Insurance Prospective Payment System codes and other coding schemes. 

    (2)  Pharmacies shall itemize charges for prescription medications, appliances or supplies on electronic or paper-based bills and submit them promptly to OWCP.  Bills for prescription medications must include all required data elements, including the NDC number assigned to the product, the generic or trade name of the drug provided, the prescription number, the quantity provided, and the date the prescription was filled.

    (3)  Nursing homes shall itemize charges for appliances, supplies or services on the provider’s billhead stationery and submit them promptly to OWCP.  Such charges shall be subject to any applicable OWCP fee schedule.

 

    (d)  By submitting a bill and/or accepting payment, the provider signifies that the service for which payment is sought was performed as described and was necessary, appropriate and properly billed in accordance with accepted industry standards.  For example, accepted industry standards preclude upcoding billed services for extended medical appointments when the employee actually had a brief routine appointment, or charging for the services of a professional when a paraprofessional or aide performed the service.  Also, industry standards prohibit unbundling services to charge separately for services that should be billed as a single charge.  In addition, the provider thereby agrees to comply with all regulations set forth in this subpart concerning the rendering of treatment and/or the process for seeking payment for medical services, including the limitation imposed on the amount to be paid for such services.

 

    (e)  In summary, bills submitted by providers must:  be itemized on Form OWCP-1500 or CMS-1500 (for physicians), Form OWCP-04 or UB-04 (for hospitals), or an electronic or paper-based bill that includes required data elements (for pharmacies); contain the handwritten or electronic signature of the provider when required; and identify the procedures using HCPCS/CPT codes, RCCs or NDC numbers.  Otherwise, OWCP may deny the bill, and the provider must correct and resubmit the bill.  The decision of OWCP whether to pay a provider’s bill is final when issued and is not subject to the adjudicatory process described in subpart D of this part.

 

§ 30.702  How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?

 

    (a)  If an employee has paid bills for medical, surgical or other services, supplies or appliances provided by a professional due to an occupational illness or a covered illness, he or she must submit a request for reimbursement on Form OWCP-915, together with an itemized bill on Form OWCP-1500 or CMS-1500 prepared by the provider, or Form OWCP-04 or UB-04 prepared by the provider, and a medical report as provided in § 30.700, to OWCP for consideration.

    (1)  The provider of such service shall state each diagnosed condition and furnish the applicable ICD-9-CM code, or as revised, and identify each service performed using the applicable HCPCS/CPT code, with a brief narrative description of the service performed, or, where no code is applicable, a detailed description of that service.  If no code or description is received, OWCP will deny the reimbursement request, and correction and resubmission will be required.

    (2)  The reimbursement request must be accompanied by evidence that the provider received payment for the service from the employee and a statement of the amount paid.  Acceptable evidence that payment was received includes, but is not limited to, a signed statement by the provider, a mechanical stamp or other device showing receipt of payment, a copy of the employee’s canceled check (both front and back), a copy of the employee’s credit card receipt or a provider billing form indicating a zero balance due

 

    (b)  If a pharmacy or nursing home provided services for which the employee paid, the employee must also use Form OWCP-915 to request reimbursement and should submit the request in accordance with the provisions of § 30.701(a).  Any such request for reimbursement must be accompanied by evidence, as described in paragraph (a)(2) of this section, that the provider received payment for the service from the employee and a statement of the amount paid.

 

    (c)  OWCP may waive the requirements of paragraphs (a) and (b) of this section if

extensive delays in the filing or the adjudication of a claim make it unusually difficult for the employee to obtain the required information.

 

    (d)  Copies of bills submitted for reimbursement must bear the handwritten or electronic signature of the provider when required, with evidence of payment.  Payment for medical and surgical treatment, appliances or supplies shall in general be no greater than the maximum allowable charge for such service determined by OWCP, as set forth in § 30.705.  OWCP will issue a letter decision on whether to reimburse an employee for out-of-pocket medical expenses, and the amount of any reimbursement.  A claimant who disagrees with OWCP’s letter decision may request a formal recommended decision and utilize the adjudicatory process described in subpart D of this part.

 

    (e)  An employee will be only partially reimbursed for a medical expense if the amount he or she paid to a provider for the service exceeds the maximum allowable charge set by OWCP’s schedule.  If this happens, OWCP shall advise the employee of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee’s account, the amount he or she paid which exceeds the maximum allowable charge.  The provider that the employee paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.

 

    (f)  If the provider fails to make appropriate refund to the employee, or to credit the employee’s account, within 60 days after the employee requests a refund of any excess amount, or the date of a subsequent reconsideration decision which continues to disallow all or a portion of the disputed amount, OWCP will initiate exclusion procedures as provided by § 30.715.

 

    (g)  If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the charge which OWCP allows, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP.  OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances of the case.

 

§ 30.703  What are the time limitations on OWCP’s payment of bills?

 

    OWCP will pay providers and reimburse employees promptly for all bills received on an approved form and in a timely manner.  However, no bill will be paid for expenses incurred if the bill is submitted more than one year beyond the end of the calendar year in which the expense was incurred or the service or supply was provided, or more than one year beyond the end of the calendar year in which the claim was first accepted as compensable by OWCP, whichever is later.

 

Medical Fee Schedule

 

§ 30.705  What services are covered by the OWCP fee schedule?

 

    (a)  Payment for medical and other health services, devices and supplies furnished by physicians, hospitals and other providers for occupational illnesses or covered illnesses shall not exceed a maximum allowable charge for such service as determined by OWCP, except as provided in this section.

 

    (b)  The schedule of maximum allowable charges does not apply to charges for services provided in nursing homes, but it does apply to charges for treatment furnished in a nursing home by a physician or other medical professional.  In the future, OWCP may also decide to implement a fee schedule for services provided in nursing homes.

 

    (c)  The schedule of maximum allowable charges also does not apply to charges for appliances, supplies, services or treatment furnished by medical facilities of the U.S. Public Health Service or the Departments of the Army, Navy, Air Force and Veterans Affairs.

 

§ 30.706  How are the maximum fees for professional medical services defined?

 

    For professional medical services, OWCP shall maintain a schedule of maximum allowable fees for procedures performed in a given locality.  The schedule shall consist of:  an assignment of a Relative Value Unit (RVU) to procedures identified by HCPCS/CPT code which represents the relative skill, effort, risk and time required to perform the procedure, as compared to other procedures of the same general class; an assignment of Geographic Practice Cost Index (GPCI) values which represent the relative work, practice expenses and malpractice expenses relative to other localities throughout the country; and a monetary value assignment (conversion factor) for one unit of value for each coded service.

 

§ 30.707  How are payments to providers calculated?

 

   Payment for a procedure, service or device identified by a HCPCS/CPT code shall not exceed the amount derived by multiplying the RVU values for that procedure by the GPCI values for services in that area and by the conversion factor to arrive at a dollar amount assigned to one unit in that category of service.

 

    (a)  The “locality” which serves as a basis for the determination of cost is defined by the Bureau of Census Metropolitan Statistical Areas.  OWCP shall base the determination of the relative per capita cost of medical care in a locality using information about enrollment and medical cost per county, provided by CMS.

 

    (b)  OWCP shall assign the RVUs published by CMS to all services for which CMS has made assignments, using the most recent revision.  Where there are no RVUs assigned to a procedure, OWCP may develop and assign any RVUs it considers appropriate.  The geographic adjustment factor shall be that designated by GPCI values for Metropolitan Statistical Areas as devised for CMS and as updated or revised by CMS from time to time.  OWCP will devise conversion factors for each category of service as appropriate using OWCP’s processing experience and internal data.

 

    (c)  For example, if the RVUs for a particular surgical procedure are 2.48 for physician’s work (W), 3.63 for practice expense (PE), and 0.48 for malpractice insurance (M), and the conversion factor assigned to one unit in that category of service (surgery) is $61.20, then the maximum allowable charge for one performance of that procedure is the product of the three RVUs times the corresponding GPCI values for the locality times the conversion factor.  If the GPCI values for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then the maximum payment calculation is:

 

[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20

[2.45 + 3.44 + 0.56] x $61.20

6.45 x $61.20 = $394.74

 

§ 30.708  Does the fee schedule apply to every kind of procedure?

 

    Where the time, effort and skill required to perform a particular procedure vary widely from one occasion to the next, OWCP may choose not to assign a relative value to that procedure.  In this case the allowable charge for the procedure will be set individually based on consideration of a detailed medical report and other evidence.  At its discretion, OWCP may set fees without regard to schedule limits for specially authorized consultant examinations, for directed medical examinations, and for other specially authorized services.

 

§ 30.709  How are payments for medicinal drugs determined?

 

    Unless otherwise specified by OWCP, payment for medicinal drugs prescribed by physicians shall not exceed the amount derived by multiplying the average wholesale price of the medication by the quantity or amount provided, plus a dispensing fee.  OWCP may, in its discretion, contract for or require the use of specific providers for certain medications.

 

    (a)  All prescription medications identified by NDC number will be assigned an average wholesale price representing the product’s nationally recognized wholesale price as determined by surveys of manufacturers and wholesalers.  OWCP will establish the dispensing fee, which will not be affected by the location or type of provider dispensing the medication.

 

    (b)  The NDC numbers, the average wholesale prices, and the dispensing fee shall be reviewed from time to time and updated as necessary.

 

    (c)  With respect to prescribed medications, OWCP may require the use of generic equivalents where they are available.

 

§ 30.710  How are payments for inpatient medical services determined?

 

    (a)  OWCP will pay for inpatient medical services according to pre-determined, condition-specific rates based on the Inpatient Prospective Payment System (IPPS) devised by CMS.  Using this system, payment is derived by multiplying the diagnosis-related group (DRG) weight assigned to the hospital discharge by the provider-specific factors.

    (1)  All inpatient hospital discharges will be classified according to the DRGs prescribed by CMS in the form of the DRG Grouper software program.  On this list, each DRG represents the average resources necessary to provide care in a case in that DRG relative to the national average of resources consumed per case.

    (2)  The provider-specific factors will be provided by CMS in the form of their IPPS Pricer software program.  The software takes into consideration the type of facility, census division, actual geographic location of the hospital, case mix cost per discharge, number of hospital beds, intern/beds ratio, operating cost to charge ratio, and other factors used by CMS to determine the specific rate for a hospital discharge under their IPPS.  OWCP may devise price adjustment factors as appropriate using OWCP’s processing experience and internal data.

    (3)  OWCP will base payments to facilities excluded from CMS’s IPPS on consideration of detailed medical reports and other evidence.

    (4)  OWCP shall review the pre-determined hospital rates at least once a year, and may adjust any or all components when OWCP deems it necessary or appropriate.

 

    (b)  OWCP shall review the schedule of fees at least once a year, and may adjust the schedule or any of its components when OWCP deems it necessary or appropriate.

 

§ 30.711  How are payments for outpatient medical services determined?

 

    (a)  OWCP will pay for outpatient medical services according to Ambulatory Payment Classifications (APC) based on the Outpatient Prospective Payment System devised by CMS. 

 

    (b)  All outpatient medical services will be classified according to the APC prescribed by CMS for that service in the form of the Outpatient Prospective Payment System Grouper software program.  Each payment is derived by multiplying the prospectively established scaled relative weight for the service’s clinical APC by a conversion factor to arrive at a national unadjusted payment rate for the APC.  The labor portion of the national unadjusted payment rate is further adjusted by the hospital wage index for the area where payment is being made.

 

    (c)  If a payable service has no assigned APC, the payment will be derived from the OWCP Medical Fee Schedule.

 

    (d)  OWCP shall review the pre-determined outpatient hospital rates at least once a year, and may adjust any or all components when OWCP deems it necessary or appropriate.

 

§ 30.712  When and how are fees reduced?

 

    (a)  OWCP shall accept a provider’s designation of the code to identify a billed procedure or service if the code is consistent with medical reports and other evidence, and will pay no more than the maximum allowable fee for that procedure.  If the code is not consistent with the medical and other evidence or where no code is supplied, the bill will be returned to the provider for correction and resubmission. 

 

    (b)  If the charge submitted for a service supplied to an employee exceeds the maximum amount determined to be reasonable according to the schedule, OWCP shall pay the amount allowed by the schedule for that service and shall notify the provider in writing that payment was reduced for that service in accordance with the schedule.  OWCP shall also notify the provider of the method for requesting reconsideration of the balance of the charge.  The decision of OWCP to pay less than the charged amount is final when issued and is not subject to the adjudicatory process described in subpart D of this part.

 

§ 30.713  If OWCP reduces a fee, may a provider request reconsideration of the reduction?

 

    (a)  A physician or other provider whose charge for service is only partially paid because it exceeds a maximum allowable amount set by OWCP may, within 30 days, request reconsideration of the fee determination.

    (1)  The provider should make such a request to the district office with jurisdiction over the employee’s claim.  The request must be accompanied by documentary evidence that the procedure performed was either incorrectly identified by the original code, that the presence of a severe or concomitant medical condition made treatment especially difficult, or that the provider possessed unusual qualifications.  In itself, board certification in a specialty is not sufficient evidence of unusual qualifications to justify a charge in excess of the maximum allowable amount set by OWCP.  These are the only three circumstances that will justify reevaluation of the paid amount.

    (2)  A list of district offices and their respective areas of jurisdiction is available upon request from the U.S. Department of Labor, Office of Workers’ Compensation Programs, Washington, DC  20210, or at http://www.dol.gov/owcp/energy/index.htm.  Within 30 days of receiving the request for reconsideration, the district office shall respond in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted.

 

    (b)  If the district office issues a decision that continues to disallow a contested amount, the provider may apply to the Regional Director of the region with jurisdiction over the district office.  The application must be filed within 30 days of the date of such decision, and it may be accompanied by additional evidence.  Within 60 days of receipt of such application, the Regional Director shall issue a decision in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted.  This decision is final, and shall not be subject to further review.

 

§ 30.714  If OWCP reduces a fee, may a provider bill the employee for the balance?

 

    A provider whose fee for service is partially paid by OWCP as a result of the application of its fee schedule or other tests for reasonableness in accordance with this part shall not request payment from the employee for the unpaid amount of the provider’s bill.

 

    (a)  Where a provider’s fee for a particular service or procedure is lower to the general public than as provided by the schedule of maximum allowable charges, the provider shall bill at the lower rate.  A fee for a particular service or procedure which is higher than the provider’s fee to the general public for that same service or procedure will be considered a charge “substantially in excess of such provider’s customary charges” for the purposes of § 30.715(d).

 

    (b)  A provider whose fee for service is partially paid by OWCP as the result of the application of the schedule of maximum allowable charges and who collects or attempts to collect from the employee, either directly or through a collection agent, any amount in excess of the charge allowed by OWCP, and who does not cease such action or make appropriate refund to the employee within 60 days of the date of the decision of OWCP, shall be subject to the exclusion procedures provided by § 30.715(h).

 

Exclusion of Providers

 

§ 30.715  What are the grounds for excluding a provider from payment under this part?

 

    A physician, hospital, or provider of medical services or supplies shall be excluded from payment under this part if such physician, hospital or provider has:

 

    (a)  Been convicted under any criminal statute of fraudulent activities in connection with any federal or state program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies;

 

    (b)  Been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any federal or state program referred to in paragraph (a) of this section;

 

    (c)  Knowingly made, or caused to be made, any false statement or misrepresentation of a material fact in connection with a determination of the right to reimbursement under this part, or in connection with a request for payment;

 

    (d)  Submitted, or caused to be submitted, three or more bills or requests for payment within a 12-month period under this subpart containing charges which OWCP finds to be substantially in excess of such provider’s customary charges, unless OWCP finds there is good cause for the bills or requests containing such charges;

 

    (e)  Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this subpart and paid for by OWCP;

 

    (f)  Failed, neglected or refused on three or more occasions during a 12-month period to submit full and accurate medical reports, or to respond to requests by OWCP for additional reports or information, as required by § 30.700;

 

    (g)  Knowingly furnished treatment, services or supplies which are substantially in excess of the employee’s needs, or of a quality which fails to meet professionally recognized standards;

 

    (h)  Collected or attempted to collect from the employee, either directly or through a collection agent, an amount in excess of the charge allowed by OWCP for the procedure performed, and has failed or refused to make appropriate refund to the employee, or to cease such collection attempts, within 60 days of the date of the decision of OWCP;

 

    (i)  Failed to inform OWCP of any change in their provider status as required in § 30.700; or

 

    (j)  Engaged in conduct related to care of an employee’s occupational illness or covered illness that OWCP finds to be misleading, deceptive or unfair.

 

§ 30.716  What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?

 

    (a)  OWCP shall automatically exclude a physician, hospital, or provider of medical services or supplies who:

    (1)  Has been convicted of a crime described in § 30.715(a); or

    (2)  Has been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any federal or state program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies.

 

    (b)  The exclusion applies to participating in the program and to seeking payment under this part for services performed after the date of the entry of the judgment of conviction or order of exclusion, suspension or resignation, as the case may be, by the court or agency concerned.  Proof of the conviction, exclusion, suspension or resignation may consist of a copy thereof authenticated by the seal of the court or agency concerned.

 

    (c)  A provider may be excluded on a voluntary basis at any time.

 

§ 30.717  When are OWCP’s exclusion procedures initiated?

 

    (a)  Upon receipt of information indicating that a physician, hospital or provider of medical services or supplies (hereinafter the provider) has or may have engaged in activities enumerated in paragraphs (c) through (j) of § 30.715, OWCP will forward that information to the Department of Labor’s Office of Inspector General (DOL OIG) for its consideration.  If the information was provided directly to DOL OIG, DOL OIG will notify OWCP of its receipt and implement the appropriate action within its authority, unless such notification will or may compromise the identity of confidential sources, or compromise or prejudice an ongoing or potential criminal investigation.

 

    (b)  DOL OIG will conduct such action as it deems necessary, and, when appropriate, provide a written report as described in paragraph (c) of this section to OWCP.  OWCP will then determine whether to initiate procedures to exclude the provider from participation in the EEOICPA program.  If DOL OIG determines not to take any further action, it will promptly notify OWCP of such determination.

 

    (c)  If DOL OIG discovers reasonable cause to believe that violations of § 30.715 have occurred, it shall, when appropriate, prepare a written report, i.e., investigative memorandum, and forward the report along with supporting evidence to OWCP.  The report shall be in the form of a single memorandum in narrative form with attachments.

    (1)  The report should contain all of the following elements:

    (i)  A brief description and explanation of the subject provider or providers;

    (ii)  A concise statement of the DOL OIG’s findings upon which exclusion may be based;

    (iii)  A summary of the events that make up the DOL OIG’s findings;

    (iv)  A discussion of the documentation supporting DOL OIG’s findings;

    (v)  A discussion of any other information that may have bearing upon the exclusion process; and

    (vi)  The supporting documentary evidence including any expert opinion rendered in the case.

    (2)  The attachments to the report should be provided in a manner that they may be easily referenced from the report.

 

§ 30.718  How is a provider notified of OWCP’s intent to exclude him or her?

 

    Following receipt of the investigative report, OWCP will determine if there exists a reasonable basis to exclude the provider or providers.  If OWCP determines that such a basis exists, OWCP shall initiate the exclusion process by sending the provider a letter, by certified mail and with return receipt requested (or equivalent services from a commercial carrier), which shall contain the following:

 

    (a)  A concise statement of the grounds upon which exclusion shall be based;

 

    (b)  A summary of the information, with supporting documentation, upon which OWCP has relied in reaching an initial decision that exclusion proceedings should begin;

 

    (c)  An invitation to the provider to:

    (1)  Resign voluntarily from participation in the EEOICPA program without admitting or denying the allegations presented in the letter; or

    (2)  Request a decision on exclusion based upon the existing record and any additional documentary information the provider may wish to furnish;

 

    (d)  A notice of the provider’s right, in the event of an adverse ruling by the deciding official, to request a formal hearing before an administrative law judge;

 

    (e)  A notice that should the provider fail to respond (as described in § 30.719) the letter of intent within 60 days of receipt, the deciding official may deem the allegations made therein to be true and may order exclusion of the provider without conducting any further proceedings; and

 

    (f)  The address to where the response from the provider should be sent.

 

§ 30.719  What requirements must the provider’s response and OWCP’s decision meet?

 

    (a)  The provider’s response shall be in writing and shall include an answer to OWCP’s invitation to resign voluntarily.  If the provider does not offer to resign, he or she shall request that a determination be made upon the existing record and any additional information provided.

 

    (b)  Should the provider fail to respond to the letter of intent within 60 days of receipt, the deciding official may deem the allegations made therein to be true and may order exclusion of the provider.

 

    (c)  The provider may inspect or request copies of information in the record at any time prior to the deciding official’s decision by making such request to OWCP within 20 days of receipt of the letter of intent.

 

   (d)  OWCP shall have 30 days to answer the provider’s response.  That answer will be forwarded to the provider, who shall then have 15 days to reply.  Any response from the provider may be forwarded to DOL OIG, should OWCP deem it appropriate, to obtain additional information which may be relevant to the provider’s response.

 

    (e)  The deciding official shall be the Regional Director in the region in which the provider is located unless otherwise specified by the Director for Energy Employees Occupational Illness Compensation.

 

    (f)  The deciding official shall issue his or her decision in writing, and shall send a copy of the decision to the provider by certified mail, return receipt requested (or equivalent service from a commercial carrier).  The decision shall advise the provider of his or her right to request, within 30 days of the date of the adverse decision, a formal hearing before an administrative law judge under the procedures set forth in § 30.720.  The filing of a request for a hearing within the time specified shall stay the effectiveness of the decision to exclude.

 

§ 30.720  How can an excluded provider request a hearing?

 

    A request for a hearing shall be sent to the deciding official and shall contain:

 

    (a)  A concise notice of the issues on which the provider desires to give evidence at the hearing;

 

    (b)  Any request for the presentation of oral argument or evidence; and

 

    (c)  Any request for a certification of questions concerning professional medical standards, medical ethics or medical regulation for an advisory opinion from a competent recognized professional organization or federal, state or local regulatory body.

 

§ 30.721  How are hearings assigned and scheduled?

 

    (a)  If the deciding official receives a timely request for hearing, he or she shall refer the matter to the Chief Administrative Law Judge of the Department of Labor, who shall assign it for an expedited hearing.  The administrative law judge assigned to the matter shall consider the request for hearing, act on all requests therein, and issue a Notice of Hearing and schedule for the conduct of the hearing.  A copy of the hearing notice shall be served on the provider by certified mail, return receipt requested.  The Notice of Hearing and schedule shall include:

    (1)  A ruling on each item raised in the request for hearing;

    (2)  A schedule for the prompt disposition of all preliminary matters, including requests for the certification of questions to advisory bodies; and

    (3)  A scheduled hearing date not less than 30 days after the date the schedule is issued, and not less than 15 days after the scheduled conclusion of preliminary matters, provided that the specific time and place of the hearing may be set on 10 days’ notice.

 

    (b)  The provider is entitled to be heard on any matter placed in issue by his or her response to the notice of intent to exclude, and may designate “all issues” for purposes of hearing.  However, a specific designation of issues is required if the provider wishes to interpose affirmative defenses, or request the certification of questions for an advisory opinion.

 

§ 30.722  How are subpoenas or advisory opinions obtained?

 

    (a)  In exclusion proceedings involving medical services provided under Part B of the Act only, the provider may apply to the administrative law judge for the issuance of subpoenas upon a showing of good cause therefore.

 

    (b)  A certification of a request for an advisory opinion concerning professional medical standards, medical ethics or medical regulation to a competent recognized or professional organization or federal, state or local regulatory agency may be made:

    (1)  As to an issue properly designated by the provider, in the sound discretion of the administrative law judge, provided that the request will not unduly delay the proceedings;

    (2)  By OWCP on its own motion either before or after the institution of proceedings, and the results thereof shall be made available to the provider at the time that proceedings are instituted or, if after the proceedings are instituted, within a reasonable time after receipt.  The opinion, if rendered by the organization or agency, is advisory only and not binding on the administrative law judge.

 

§ 30.723  How will the administrative law judge conduct the hearing and issue the recommended decision?

 

    (a)  To the extent appropriate, proceedings before the administrative law judge shall be governed by 29 CFR part 18.

 

    (b)  The administrative law judge shall receive such relevant evidence as may be adduced at the hearing.  Parties to the hearing are the provider and OWCP.  Evidence shall be presented under oath, orally or in the form of written statements.  The administrative law judge shall consider the notice and response, including all pertinent documents accompanying them, and may also consider any evidence which refers to the provider or to any claim with respect to which the provider has provided medical services, hospital services, or medical services and supplies, and such other evidence as the administrative law judge may determine to be necessary or useful in evaluating the matter.

 

    (c)  All hearings shall be recorded and the original of the complete transcript shall become a permanent part of the official record of the proceedings.

 

    (d)  In conjunction with the hearing, the administrative law judge may:

    (1)  Administer oaths; and

    (2)  Examine witnesses.

 

    (e)  At the conclusion of the hearing, the administrative law judge shall issue a written decision and cause it to be served on all parties to the proceeding, their representatives and OWCP.

 

§ 30.724  How does a recommended decision become final?

 

    (a)  Within 30 days from the date the recommended decision is issued, the provider may state, in writing, any objections to the recommended decision.  This written statement should be filed with the Director for Energy Employees Occupational Illness Compensation.

 

    (b)  For the purposes of determining whether the written statement referred to in paragraph (a) of this section has been timely filed with the Director for Energy Employees Occupational Illness Compensation, the statement will be considered to be “filed” on the date that the provider mails it to the Director, as determined by postmark or other carrier’s date marking, or the date that such written statement is actually received by the Director, whichever is earlier.

 

    (c)  Written statements objecting to the recommended decision may be filed upon one or more of the following grounds:

    (1)  A finding or conclusion of material fact is not supported by substantial evidence;

    (2)  A necessary legal conclusion is erroneous;

    (3)  The decision is contrary to law or to the duly promulgated rules or decisions of the Director;

    (4)  A substantial question of law, policy, or discretion is involved; or

    (5)  A prejudicial error of procedure was committed.

 

    (d)  Each issue shall be separately numbered and plainly and concisely stated, and shall be supported by detailed citations to the record when assignments of error are based on the record, and by statutes, regulations or principal authorities relied upon.  Except for good cause shown, no assignment of error by the provider shall rely on any question of fact or law upon which the administrative law judge had not been afforded an opportunity to pass.

 

    (e)  If a written statement of objection is filed within the allotted period of time, the Director for Energy Employees Occupational Illness Compensation will review the objection.  The Director will forward the written objection to DOL OIG, which will have 14 calendar days from that date to respond.  Any response from DOL OIG will be forwarded to the provider, which will have 14 calendar days from that date to reply.

 

    (f)  The Director for Energy Employees Occupational Illness Compensation will consider the recommended decision, the written record and any response or reply received and will then issue a written, final decision either upholding or reversing the exclusion.

 

    (g)  If no written statement of objection is filed within the allotted period of time, the Director for Energy Employees Occupational Illness Compensation will issue a written, final decision accepting the recommendation of the administrative law judge.

 

    (h)  The decision of the Director for Energy Employees Occupational Illness Compensation shall be final with respect to the provider’s participation in the program, and shall not be subject to further review.

 

§ 30.725  What are the effects of non-automatic exclusion?

   

    (a)  OWCP shall give notice of the exclusion of a physician, hospital or provider of medical services or supplies to:

    (1)  All OWCP district offices;

    (2)  CMS;

    (3)  All employees who are known to have had treatment, services or supplies from the excluded provider within the six-month period immediately preceding the order of exclusion; and

    (4)  The state or local authority responsible for licensing or certifying the excluded provider.

 

    (b)  Notwithstanding any exclusion of a physician, hospital, or provider of medical services or supplies under this subpart, OWCP shall not refuse an employee reimbursement for any otherwise reimbursable medical treatment, service or supply if:

    (1)  Such treatment, service or supply was rendered in an emergency by an excluded physician; or

    (2)  The employee could not reasonably have been expected to know of such exclusion.

 

    (c)  An employee who is notified that his or her attending physician has been excluded shall have a new right to select a qualified physician.

 

§ 30.726  How can an excluded provider be reinstated?

 

    (a)  If a physician, hospital, or provider of medical services or supplies has been automatically excluded pursuant to § 30.716, the provider excluded will automatically be reinstated upon notice to OWCP that the conviction or exclusion which formed the basis of the automatic exclusion has been reversed or withdrawn.  However, an automatic reinstatement shall not preclude OWCP from instituting exclusion proceedings based upon the underlying facts of the matter.

 

    (b)  A physician, hospital, or provider of medical services or supplies excluded from participation as a result of an order issued pursuant to this subpart may apply for reinstatement one year after the entry of the order of exclusion, unless the order expressly provides for a shorter period.  An application for reinstatement shall be addressed to the Director for Energy Employees Occupational Illness Compensation, and shall contain a concise statement of the basis for the application.  The application should be accompanied by supporting documents and affidavits.

 

    (c)  A request for reinstatement may be accompanied by a request for oral presentation.  Oral presentations will be allowed only in unusual circumstances where it will materially aid the decision process.

 

    (d)  The Director for Energy Employees Occupational Illness Compensation shall order reinstatement only in instances where such reinstatement is clearly consistent with the goal of this subpart to protect the EEOICPA program against fraud and abuse.  To satisfy this requirement the provider must provide reasonable assurances that the basis for the exclusion will not be repeated.

 

Subpart I—Wage-Loss Determinations Under Part E of EEOICPA

 

General Provisions

 

§ 30.800  What types of wage-loss are compensable under Part E of EEOICPA?

 

    Years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a Department of Energy facility or a RECA section 5 facility, as appropriate, may be compensable under Part E of the Act.  Whether years of wage-loss are compensable depends on determinations with respect to:

 

    (a)  The average annual wage of the employee as determined by OWCP in accordance with § 30.810;

 

    (b)  The percentage of his or her average annual wage that the employee was able to earn during the calendar year(s) in question as determined by OWCP in accordance with § 30.811; and

   

    (c)  Whether the employee’s inability to earn at least as much as his or her average annual wage was due to a covered illness as defined in § 30.5(s).

 

§ 30.801  What special definitions does OWCP use in connection with Part E wage-loss determinations?

 

    For the purposes of paying compensation based on wage-loss under Part E of the Act, OWCP will apply the following definitions:

 

    (a)  Average annual wage means 12 times the average monthly wage of a covered Part E employee for the 36 months preceding the month during which he or she first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility (referred to as the “trigger month”), excluding any months during which the employee was unemployed.  Because being “retired” is not equivalent to being “unemployed,” months during which an employee had no wages because he or she was retired will not be excluded from this calculation.

 

    (b)  Normal retirement age means the age at which a covered Part E employee first became eligible for unreduced retirement benefits under the Old-Age, Survivors and Disability Insurance (OASDI) provisions of the Social Security Act.  In general, persons born during or before 1937 are eligible for unreduced OASDI retirement benefits at age 65, and that age increases in monthly increments until it reaches 67, which is the age at which persons born during or after 1960 become eligible for unreduced OASDI retirement benefits.

 

    (c)  Month during which the employee was unemployed means any month during which the covered Part E employee had $250 (in constant 2013 dollars) or less in wages unless the month is one during which the employee was retired.

 

    (d)  Quarter means the three-month period January through March, April through June, July through September, or October through December.

 

    (e)  Quarter during which the employee was unemployed means any quarter during which the covered Part E employee had $750 (in constant 2013 dollars) or less in wages unless the quarter is one during which the employee was retired.

 

    (f)  Trigger month means the calendar month during which the employee first experienced a loss in wages due to exposure to a toxic substance at a DOE facility or RECA section 5 facility.

 

    (g)  Wages mean all monetary payments that the covered Part E employee earns from his or her regular employment or services that are taxed as income by the Internal Revenue Service.  Salaries, overtime compensation, sick leave, vacation leave, tips, and bonuses received for employment services are considered wages under this subpart.  However, capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers’ compensation benefits, medical retirement benefits, and Social Security benefits are not considered wages. 

 

    (h)  Year of wage-loss means a calendar year during which the covered Part E employee’s earnings were less than his or her average annual wage, after such earnings have been adjusted using the Consumer Price Index for All Urban Consumers (CPI-U), as produced by the Bureau of Labor Statistics, to reflect their value in the year during which the employee first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility.

 

Evidence of Wage-Loss

 

§ 30.805  What are the criteria for eligibility for wage-loss benefits under Part E?

   

    (a)  In addition to satisfying the general eligibility requirements applicable to all Part E claims, a claimant seeking benefits for calendar years of qualifying wage-loss has the burden of proof to establish each of the following criteria:

    (1)  He or she held a job at which he or she earned wages;

    (2)  He or she experienced a loss in those wages in a particular month (referred to as the “trigger month” in this section);

    (3)  The wage-loss in the trigger month was caused by the covered Part E employee’s covered illness, i.e., that he or she would have continued to earn wages in the trigger month from that employment but for the covered illness;

    (4)  His or her average annual wage;

    (5)  His or her normal retirement age and the calendar year in which he or she would reach that age;

    (6)  Beginning with the calendar year of the trigger month, the percentage of the average annual wage that was earned in each calendar year up to and including the retirement year;

    (7)  The number of those calendar years in which the covered illness caused the covered Part E employee to earn 50% or less of his or her average annual wage; and

    (8)  The number of those calendar years in which the covered illness caused him or her to earn more than 50% but not more than 75% of his or her average annual wage.

 

    (b)  OWCP will discontinue development of a request for wage-loss benefits, during which the claimant must meet his or her burden of proof to establish each of the criteria listed in paragraph (a) of this section, at any point when the claimant is unable to meet such burden and proceed to issue a recommended decision to deny the request.

 

§ 30.806  What kind of medical evidence must the claimant submit to prove that he or she lost wages due to a covered illness?     

    OWCP requires the submission of rationalized medical evidence of sufficient probative value to convince the fact-finder that the covered Part E employee experienced a loss in wages in his or her trigger month due to a covered illness, i.e., medical evidence based on a physician’s fully explained and reasoned decision (see § 30.805(a)(3)).  A loss in wages in the trigger month due solely to non-covered illness matters, such as a reduction in force or voluntary retirement, is not proof of compensable wage-loss under Part E.

 

§ 30.807  What factual evidence does OWCP use to determine a covered Part E employee’s average annual wage?

 

    (a)  OWCP may rely on annual or quarterly wage information reported to the Social Security Administration to establish a covered Part E employee’s presumed average annual wage (see § 30.810) and the duration and extent of any years of wage-loss that are compensable under Part E of the Act (see § 30.811).  OWCP may also rely on other probative evidence of a covered Part E employee’s wages, and may ask the claimant for additional evidence needed to make this determination, if necessary.  For the purposes of making these two types of determinations, OWCP will consider all monetary payments that the covered Part E employee received as wages (see § 30.801(g)).

 

    (b)  A claimant who disagrees with the evidence OWCP has obtained under paragraph (a) of this section and alleges a different average annual wage for the covered Part E employee, or that there was a greater duration or extent of wage-loss, may submit records that were produced in the ordinary course of business due to the employee’s employment to rebut that evidence, to the extent that such records are determined to be authentic by OWCP.  The average annual wage and/or wage-loss of the covered Part E employee will then be determined by OWCP in the exercise of its discretion.

 

Determinations of Average Annual Wage and Percentages of Loss

 

§ 30.810  How will OWCP calculate the average annual wage of a covered Part E employee?

 

    To calculate the average annual wage of a covered Part E employee as defined in § 30.801(a), OWCP will:

 

    (a)  Aggregate the wages for the 36 months that preceded the trigger month, excluding any month during which the employee was unemployed;

 

    (b)  Add any additional wages earned by the employee during those same months as evidenced by records described in § 30.807; 

    (c)  Divide the sum of paragraphs (a) and (b) of this section by 36, less the number of months during which the employee was unemployed; and

    (d)  Multiply this figure by 12 to calculate the covered Part E employee’s average annual wage.

 

§ 30.811  How will OWCP calculate the duration and extent of a covered Part E employee’s initial period of compensable wage-loss?

 

    (a)  To determine the initial calendar years of wage-loss, OWCP will use the evidence it receives under §§ 30.805 through 30.807 to compare the calendar-year wages for the covered Part E employee, as adjusted, with the average annual wage determined under § 30.810 for each calendar year beginning with the calendar year that includes the trigger month, and concluding with the last calendar year of wage-loss prior to the submission of the claim or the calendar year in which the employee reached normal retirement age (as defined in § 30.801(b)), whichever occurred first.

 

    (b)  OWCP will then aggregate separately the number of calendar years of wage-loss in which the employee’s wages, as adjusted, did not exceed 50 percent of the average annual wage determined under § 30.810, and the number of calendar years of wage-loss in which the employee’s wages, as adjusted, exceeded 50 percent of such average annual wage, but did not exceed 75 percent of such average annual wage.

 

    (c)  For each calendar year of wage-loss determined under paragraph (c) of this section during which the employee’s wages did not exceed 50 percent of his or her average annual wage, OWCP will pay the employee $15,000 as compensation for wage-loss.  For each calendar year of wage-loss determined under paragraph (c) of this section during which the employee’s calendar-year wages exceeded 50 percent of his or her average annual wage but did not exceed 75 percent of such average annual wage, OWCP will pay the employee $10,000 as compensation for wage-loss.

 

§ 30.812  May a covered Part E employee claim for subsequent periods of compensable wage-loss?

 

    A covered Part E employee previously awarded compensation for wage-loss under § 30.811 may file for additional compensation for wage-loss suffered by the employee during periods subsequent to a period for which a wage-loss claim for the employee has already been adjudicated by OWCP.  However, no compensation for wage-loss shall be awarded for any period following the year during which the covered Part E employee attained normal retirement age for purposes of the Social Security Act as described in § 30.801(b).

 

Special Rules for Certain Survivor Claims Under Part E of EEOICPA

 

§ 30.815  Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee’s compensable wage-loss?

 

    (a)  For purposes of adjudicating a claim of a survivor of a deceased covered Part E employee only, OWCP will presume that such employee experienced wage-loss for each calendar year subsequent to the calendar year of his or her death through and including the calendar year in which the employee would have reached normal retirement age under the Social Security Act.  During these particular calendar years, OWCP will also presume that the deceased covered Part E employee’s subsequent calendar-year wages did not exceed 50 percent of his or her average annual wage as determined under § 30.810.

 

    (b)  Except as provided in paragraph (a) of this section, OWCP will calculate the wage-loss of a deceased covered Part E employee in conformance with the provisions of §§ 30.800 through 30.811.

 

    (c)  If OWCP determines that a deceased covered Part E employee had an aggregate of not less than ten calendar years of adjusted earnings that did not exceed 50 percent of his or her average annual earnings, it will pay the eligible surviving beneficiary(s) additional compensation (the basic survivor award payable under section 7385s-3(a)(1) is $125,000) in the amount of $25,000 pursuant to section 7385s-3(a)(2) of the Act.  In the alternative, if OWCP determines that the aggregate number of such years is not less than 20 years, it will pay the eligible surviving beneficiary(s) additional compensation in the amount of $50,000 pursuant to section 7385s-3(a)(3).

 

Subpart J—Impairment Benefits Under Part E of EEOICPA

 

General Provisions

 

§ 30.900  Who can receive impairment benefits under Part E?

 

    In order to receive impairment benefits under Part E, the employee must show that:

 

    (a)  He or she is a covered Part E employee who has been determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate, pursuant to either §§ 30.210 through 30.215 or §§ 30.230 through 30.232 of these regulations; and

 

    (b)  He or she has been determined to have an impairment, pursuant to the regulations set out in this subpart, that is the result of the covered illness referred to in paragraph (a) of this section.

 

§ 30.901  How does OWCP determine the extent of an employee’s impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?

 

    (a)  OWCP will determine the amount of impairment benefits to which an employee is entitled based on one or more impairment evaluations submitted by physicians.  An impairment evaluation shall contain the physician’s opinion on the extent of whole person impairment of all organs and body functions of the employee that are compromised or otherwise affected by the employee’s covered illness or illnesses, which shall be referred to as an “impairment rating.”

 

    (b)  In making impairment benefit determinations, OWCP will only consider medical reports from physicians who are certified by the relevant medical board and who satisfy any additional criteria determined by OWCP to be necessary to qualify to perform impairment evaluations under Part E, including any specific training and experience related to particular conditions and other objective factors.

 

    (c)  OWCP will establish criteria based upon objective factors such as training and certification that must be met by physicians preparing impairment evaluations in order for an impairment evaluation to be considered in determining an impairment award.  Such criteria shall be made available to claimants and the public by OWCP.

 

§ 30.902  How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E?

 

    (a)  OWCP will multiply the percentage points of the impairment rating by $2,500 to calculate the amount of the award.

 

     (b)  An employee’s impairment rating may be comprised of multiple impairments of organs and body functions due to multiple covered illnesses.  If an impairment award is payable based on a whole person impairment rating in which at least one of the impairments is subject to a reduction under §§ 30.505(b) and/or 30.626, OWCP will reduce the impairment award proportionately.

 

Medical Evidence of Impairment

 

§ 30.905  How may an impairment evaluation be obtained?

 

    (a)  Except as provided in paragraph (b) of this section, OWCP may request that an employee undergo an evaluation of his or her permanent impairment that specifies the percentage points that are the result of the employee’s covered illness or illnesses.  To be of any probative value, such evaluation must be performed by a physician who meets the criteria OWCP has identified for physicians performing impairment evaluations for the pertinent covered illness or illnesses in accordance with the AMA’s Guides.

 

    (b)  In lieu of submitting an evaluation requested by OWCP under paragraph (a) of this section, an employee may obtain an impairment evaluation at his own initiative and submit it to OWCP for consideration.  Such an evaluation will be deemed to have sufficient probative value to be considered in the adjudication of impairment benefits by OWCP only if:

    (1)  The evaluation was performed by a physician who meets the criteria identified by OWCP for the covered illness or illnesses in question;

    (2)  The evaluation was performed no more than one year before the date that it was received by OWCP; and

    (3)  The evaluation conforms to all applicable requirements set out in this part.

 

§ 30.906  Who will pay for an impairment evaluation?

 

    (a)  OWCP will pay for one impairment evaluation obtained by an employee if it meets the criteria set out in § 30.905(b), unless it was performed by a physician prior to the date that the claim for Part E benefits is filed, or obtained for a claim in which OWCP finds that the employee did not contract a covered illness.  At its discretion, OWCP may direct that the employee undergo additional evaluations.  OWCP will pay for any such additional evaluations and will reimburse the employee for any reasonable and necessary costs incident to the evaluations, as described in §§ 30.404 and 30.412 of this part.

 

    (b)  Except for one impairment evaluation obtained pursuant to § 30.905(b) and meeting the criteria set out in § 30.905(b)(1), (2) and (3), the employee must pay for any impairment evaluations not directed by OWCP.

 

§ 30.907  Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?

 

    (a)  An employee may submit arguments challenging an impairment evaluation, and/or additional medical evidence of impairment, before the district office issues a recommended decision on his or her claim.  However, the district office will not consider an additional impairment evaluation, even if it differs from the impairment evaluation obtained under §§ 30.905 or 30.906, if it does not meet the criteria listed in § 30.905(b)(1), (2) and (3).

 

    (b)  If the district office obtains an additional impairment evaluation that differs from the impairment evaluation obtained under §§ 30.905 or 30.906, the district office will base its recommended determinations regarding impairment upon the evidence it considers to have the greatest probative value, after evaluating all relevant evidence of impairment in the record, including evidence from directed impairment evaluations and referee impairment evaluations, if any, that it deems necessary pursuant to §§ 30.410 and 30.411 of this part.

 

§ 30.908   How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?

 

    (a)  If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will not consider the additional impairment evaluation if it does not meet the criteria listed in § 30.905(b)(1), (2) and (3).

 

    (b)  The employee shall bear the burden of proving that the additional impairment evaluation submitted is more probative than the evaluation relied upon by the district office to determine the employee’s recommended impairment rating.

 

    (c)  If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative.  The FAB will determine the impairment rating after it has evaluated all relevant evidence and argument in the record.

 

Ratable Impairments

 

§ 30.910  Will an impairment that cannot be assigned a numerical percentage using the AMA’s Guides be included in the impairment rating?

 

    (a)  An impairment of an organ or body function that cannot be assigned a numerical impairment percentage using the AMA’s Guides will not be included in the employee’s impairment rating. 

 

    (b)  A mental impairment that does not originate from a documented physical dysfunction of the nervous system, and cannot be assigned a numerical percentage using the AMA’s Guides, will not be included in the impairment rating for the employee.  Mental impairments that are due to documented physical dysfunctions of the nervous system can be assigned numerical percentages using the AMA’s Guides and will be included in the rating.

 

§ 30.911  Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?

 

    (a)  An impairment that is the result of a covered illness will be included in the employee’s impairment rating determined by OWCP under § 30.901 only if OWCP concludes that the impairment has reached maximum medical improvement, which means that it is well-stabilized and unlikely to improve substantially with or without medical treatment.

   

    (b)  Notwithstanding paragraph (a) of this section, if OWCP finds that an employee’s covered illness is in the terminal stages, based upon probative medical evidence, an impairment that results from such covered illness will be included in the impairment rating for the employee even if it has not reached maximum medical improvement.

 

§ 30.912  Can a covered Part E employee receive benefits for additional impairment  following an award of such benefits by OWCP?

 

    A covered Part E employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits.  Such claim must be based on an increase in the impairment rating that is the result of the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP.  OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits.  However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness.

 

* * * * *