[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78520-78568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21839]
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Part II
Department of Labor
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Office of Workers' Compensation Programs
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20 CFR Parts 1 and 30
Performance of Functions; Claims for Compensation Under the Energy
Employees Occupational Illness Compensation Program Act of 2000, as
Amended; Final Rule
Federal Register / Vol. 71, No. 250 / Friday, December 29, 2006 /
Rules and Regulations
[[Page 78520]]
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 1 and 30
RIN 1215-AB51
Performance of Functions; Claims for Compensation Under the
Energy Employees Occupational Illness Compensation Program Act of 2000,
as Amended
AGENCY: Office of Workers' Compensation Programs, Employment Standards
Administration, Labor.
ACTION: Final rule.
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SUMMARY: On June 8, 2005, the Department of Labor (DOL) published
interim final regulations that govern its responsibilities under the
Energy Employees Occupational Illness Compensation Program Act of 2000,
as amended (EEOICPA or Act). Part B of the Act provides lump-sum
payments of $150,000 and medical benefits to covered employees and,
where applicable, to survivors of such employees, of the Department of
Energy (DOE), its predecessor agencies and certain of its vendors,
contractors and subcontractors. Part B also provides lump-sum payments
of $50,000 and medical benefits to individuals found eligible by the
Department of Justice (DOJ) for $100,000 under section 5 of the
Radiation Exposure Compensation Act (RECA) and, where applicable, to
their survivors. Part E of the Act provides variable lump-sum payments
(based on a worker's permanent impairment and/or calendar years of
qualifying wage-loss) and medical benefits for covered DOE contractor
employees and, where applicable, provides variable lump-sum payments to
survivors of such employees (based on a worker's death due to a covered
illness and any calendar years of qualifying wage-loss). Part E also
provides these same payments and benefits to uranium miners, millers
and ore transporters covered by section 5 of RECA and, where
applicable, to survivors of such employees.
At the same time the Department published the interim final
regulations, it also invited written comments and advice from
interested parties regarding possible changes to those regulations.
This document amends the interim final regulations based on comments
that the Department received.
DATES: Effective Date: This rule will be effective on February 27,
2007, and will apply to all claims filed on or after that date. This
rule will also apply to any claims that are pending on February 27,
2007.
FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of
Workers' Compensation Programs, Employment Standards Administration,
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW.,
Washington, DC 20210, Telephone: 202-693-0031 (this is not a toll-free
number).
SUPPLEMENTARY INFORMATION: The Department of Labor's interim final
regulations implementing its responsibilities under the Energy
Employees Occupational Illness Compensation Program Act of 2000, as
amended (42 U.S.C. 7384 et seq.), were published in the Federal
Register on June 8, 2005 (70 FR 33590). They took effect immediately
and included a 60-day period for comment. During the comment period,
the Department received 533 timely comments: two joint comments from 39
congressional representatives; two from labor organizations; four from
attorneys; four from advocacy groups; one from a lay representative;
one from DOE; one from a DOE contractor; and 518 from individuals. The
Department also received untimely comments from one physician, one
attorney, one advocacy group, the Coconino County (Arizona) Board of
Supervisors, one labor organization, the Navajo Nation and 23
individuals; all of the points they raised were also raised by the
timely comments. Almost all of the timely comments (521) addressed the
issue of eligibility for survivor benefits under Part E of EEOICPA; 494
of the comments addressed this issue alone. They also addressed a
number of other issues, including the administrative claims process
used to adjudicate claims under EEOICPA, entitlement qualifications,
and the extent of coverage provided under Part E. The Department's
section-by-section analysis of the timely comments it received is set
forth below (see sections I and II).
Some minor changes have been made to the interim final regulations
that did not result from any comments. One such change is the addition
of new language to Sec. 30.112(b) to recognize that pursuant to Sec.
30.106, entities other than DOE may be verifying alleged periods of
employment that claimants have reported to OWCP. A second change is the
addition of language to Sec. 30.301(c) clarifying that OWCP will also
not issue a subpoena for the testimony of employees of the National
Institute for Occupational Safety and Health (NIOSH) or contractors of
either OWCP or NIOSH acting in their official capacities with respect
to the EEOICPA claims adjudication process. In addition, the existing
language of Sec. 30.316(c) has been modified so that a recommended
decision on a claim that is pending for more than one year after the
date it was reopened for issuance of a new final decision will be
considered a final decision on that claim as of that date, and Sec.
30.400(a) has been modified to reflect the current practice of OWCP to
pay for medically necessary treatment of a primary cancer in claims
where the accepted occupational illness or covered illness is a
secondary cancer.
When publishing a final rule following a comment period, it is
customary to publish only the changes that have been made to the rule;
however, in order to be more user-friendly, the Department is
publishing the entire rule, including the parts that have not been
changed. By doing so, only one document containing all of the
regulations and commentary needs to be consulted rather than multiple
documents.
I. Comments on the Interim Final Regulations
The section numbers used in the headings of the following analysis
are those that were used in the interim final regulations. Unless
otherwise stated, the section numbers in the text of the analysis refer
to the numbering used for the final regulations. No comments were
received with respect to part 1.
Section 30.5
One individual suggested that the definition for the statutory term
``Department of Energy facility'' be modified to more clearly identify
the ``list of facilities established by the Department of Energy''
referred to in the interim final regulation. To eliminate any confusion
with respect to this list, and as suggested by the comment, Sec.
30.5(x) has been amended in this final rule to specify which list of
facilities the Department has adopted. Another individual believed that
the five-year latency period requirement for specified cancers listed
in Sec. 30.5(ff)(5) was ``in error'' and suggested that it be deleted.
However, the latency period requirement is contained within section
7384l(17)(A) of the Act and cannot be modified in these regulations.
Therefore, the suggested change was not made. A third individual
suggested that Sec. 30.5(gg) be modified to more clearly describe the
requirements for eligibility of survivors under Part E. Section
30.5(gg) is only intended to inform readers that survivors must be
alive to receive a payment. Because complete descriptions of the
requirements for
[[Page 78521]]
eligibility of survivors under Part B and Part E of EEOICPA already
appear at Sec. 30.500, the suggested change is unnecessary and was not
made.
Sections 30.100, 30.101, 30.102 and 30.103
One attorney pointed out that while employees and survivors can use
Forms EE-1 and EE-2 to file their initial claims with OWCP, there was
no form provided for filing a claim for an alleged consequential
illness or injury. The absence of a specific form for claiming an
alleged consequential illness or injury is intentional since in those
situations, OWCP would already have all of the necessary factual
information that could be requested by a form. Claimants need only
submit written ``words of claim'' to OWCP, together with the type of
supporting medical evidence described in Sec. Sec. 30.207(d), 30.215,
30.222(b), 30.226 or 30.232(c), to file a claim for a consequential
illness or injury. Therefore, no new form has been designed and the
suggested changes to Sec. Sec. 30.100 and 30.101 were not made.
Two individuals disputed the provision in Sec. 30.101(c) that a
survivor must be alive to receive a payment under the Act and noted
that if all of the eligible survivors die before payment can be made,
no payment can be made to any other individual as the heir of a
deceased eligible survivor. However, this result is required under both
Parts B and E of EEOICPA pursuant to sections 7384s(e)(1) and 7385s-
3(c), which require that survivors under both Part B and Part E must be
alive at the time of payment, and cannot be altered by regulation.
Therefore, the requested change to Sec. 30.101(c) was not made.
Three advocacy groups suggested that the provision in Sec. 30.102
that OWCP will only adjudicate a claim for an increased impairment
rating if it is filed at least two years from the date of the last
award of impairment benefits is unreasonable and proposed that the
waiting period to be reduced to either one year or six months. The
claim development process that OWCP uses when it determines a covered
Part E employee's minimum impairment rating is necessarily complex and
usually takes a considerable amount of time to complete. For example,
the medical evidence submitted in support of an alleged rating may not
contain all of the information that OWCP will need to determine an
impairment rating. OWCP would then have to seek that information from
another source, or obtain an impairment evaluation by another physician
before it would be able to determine the extent of the alleged
permanent impairment based on the evidence in the case record. If
claimants were permitted to apply for an increased impairment rating
sooner than two years after their prior award for impairment benefits,
the claims processing system would inevitably become less efficient and
claimants who have not had their initial impairment claims adjudicated
and who have not received benefits for their compensable permanent
impairments would necessarily have to wait even longer to receive a
decision from OWCP. Therefore, in order to maintain an efficient system
of adjudication for all claimants and to best use its limited
resources, OWCP concludes that the two-year waiting period should
remain in place and none of the suggested changes to this section have
been adopted.
One of these same advocacy groups also noted that while Sec.
30.103 requires claimants to use approved forms when filing claims
under Part E of EEOICPA, ``the present forms do not allow for claiming
diseases other than cancer, berylliosis or silicosis.'' On June 20,
2005, the Office of Management and Budget approved new versions of
Forms EE-1 and EE-2 that allow claimants to file for all illnesses
potentially compensable under Part E. As noted in Sec. 30.103(b),
these forms are available on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. Therefore, the suggested change
to Sec. 30.103 is unnecessary and has not been made.
Section 30.106
One individual questioned whether DOE was in possession of
sufficient employment data to enable it to verify alleged periods of
employment for ``most'' claims. OWCP does not dispute that there are a
number of facilities for which DOE does not have access to any
employment data. However, OWCP has developed a number of alternative
methods to be used for verifying alleged employment at those
facilities. In acknowledgement of this situation, Sec. 30.106
describes the various alternative methods by which OWCP may seek to
verify alleged periods of employment at those facilities for which DOE
has no employment data, and no change to this section was made in the
final rule.
Sections 30.111, 30.113 and 30.114
One individual and two labor organizations questioned the
description of the general burden of proof that all claimants must meet
in order to establish their entitlement to any compensation under
either Parts B or E of EEOICPA. Section 30.111(a) describes the general
burden of proof that claimants must meet, ``[e]xcept where otherwise
provided in the Act and these regulations,'' with respect to all of the
required elements involved in a claim. As one of these labor
organizations noted, there are differing burdens of proof between Parts
B and E, as well as between different claimed illnesses within a single
Part of the Act. This fact, however, does not mean that the description
of the general burden of proof in Sec. 30.111(a) is incorrect. OWCP is
committed to helping claimants meet their burden of proof and is aware
that some claimants may have difficulty proving both the presence of
and their exposure to a toxic substance at a particular facility under
Part E. In an effort to remedy this situation, OWCP is currently
developing exposure matrices that will compile information provided by
a variety of sources, including DOE, former worker medical survey
programs, and epidemiological studies. For all of the DOE facilities,
extensive documentation exists covering thousands of toxic materials.
The matrices now being developed will be posted on our Web site and
will be available to claimants and their representatives. While it is
not possible to define precisely in a regulation how these complex
matrices will be used in each case, OWCP's procedural guidance
documents will provide additional clarity in this regard, and those
documents will also be available to the public on our Web site.
Nevertheless, it would not be appropriate to relieve claimants of their
ultimate obligation to prove their claims, which is a standard
requirement of all state and federal workers' compensation programs.
Since Part E was intended to substitute for the state workers'
compensation benefits that claimants could have sought DOE's assistance
in obtaining under former Part D of EEOICPA, OWCP's application of
standard workers' compensation principles is appropriate and no changes
were made to Sec. 30.111(a).
Another individual suggested that OWCP amend Sec. 30.111(c) to
state that an affidavit submitted by a claimant is not, in and of
itself, sufficient to establish a period of alleged employment. Section
30.111(c) currently states that such affidavits ``may be relied on in
determining whether a claim meets the requirements of the Act. * * *''
However, since Sec. 30.112(b)(3) already makes clear that OWCP may
reject a claim when the only evidence of covered employment is a
``self-serving affidavit,'' the suggested change is unnecessary and was
not adopted in the
[[Page 78522]]
final rule. A third individual suggested that language be added to
Sec. 30.111 stating that when OWCP requests a second opinion from a
medical specialist, it will only provide such specialist with copies of
the ``medical'' evidence in the case file to review instead of all
``relevant'' evidence in the file. This suggestion ignores the fact
that factual evidence from a case file may be highly relevant (e.g.,
evidence of exposure levels, environmental assessments, etc.) to the
probative value of the specialist's medical opinion and as a result,
the requested change was not made.
A third individual requested that Sec. 30.113(a) be changed to
indicate that OWCP will accept various types of ``electronic''
submissions in support of claims for compensation under EEOICPA, while
an advocacy group suggested that Sec. 30.113(c) be changed due to its
belief that all statements regarding the substance of lost or destroyed
factual or medical evidence would be ``self-serving'' and therefore not
acceptable. Both of these provisions have been in effect since the
issuance of the first final rule on December 26, 2002, and have not
proved problematic in practice. Therefore, the requested changes were
not made in this final rule.
A fourth individual disagreed with the general requirement in Sec.
30.114 that claims for compensation under EEOICPA be supported with
medical evidence that establishes the existence of the alleged
occupational illness under Part B or covered illness under Part E.
However, these medical requirements are derived from the statutory
requirements in the Act itself and cannot be altered through the
rulemaking process. Therefore, the requested change to Sec. 30.114 was
not made.
Section 30.115
Two individuals asserted that application of the dose
reconstruction process discussed in Sec. 30.115 of the interim final
regulations to Part E cancer claims would be neither just nor fair, and
one advocacy group asked how OWCP planned to adjudicate the claims of
employees with non-specified cancers (those not listed at Sec.
30.5(ff)) at newly designated Special Exposure Cohort worksites. With
respect to the first of these two concerns, the discussion of Sec.
30.213 in the preamble to the interim final rule described the
scientific and administrative reasons why OWCP decided to use the
existing dose reconstruction process from Part B to adjudicate certain
radiogenic cancer claims filed under Part E, and the two commenters
have not presented any arguments challenging the underlying bases for
that decision. As for the comment regarding OWCP's adjudication of non-
specified cancer claims following an administrative addition of a class
of employees to the Special Exposure Cohort, this question involves the
manner in which the Department of Health and Human Services (HHS)
defines the new class of employees and the unique factual basis for its
addition to the Special Exposure Cohort. However, since neither of
these matters are within the jurisdiction of OWCP, they cannot be
addressed in the context of this rulemaking (see Sec. 30.2(b)). For
the above reasons, no changes were made to Sec. 30.115 in the final
rule based on these three comments.
Section 30.213
OWCP received 19 comments regarding the operation of Sec. 30.213
with respect to the 50 percent compensable level of probability of
causation (PoC) it will use to adjudicate claims for radiogenic cancer
under Part E of EEOICPA (three comments were received from advocacy
groups, 11 from individuals, two from congressional representatives,
one from a lay representative, and two from a single labor
organization). These comments requested that OWCP lower the
compensability level below the 50 percent level that is used for Part B
claims, but gave no scientific or other rationale for setting the
compensability level at any particular point below 50 percent. Rather,
the commenters base their arguments on the fact that the statutory
causation standard for Part E uses language that differs from the
language used for Part B. For the reasons set forth below, OWCP has
determined that it is more consistent with congressional intent and
current science to continue to use HHS's regulations in making the
determination required by section 7385s-4(c)(1)(A) of the Act because
those regulations provide the only reasonable factual basis upon which
OWCP can determine if it is ``at least as likely as not'' that exposure
to radiation at a DOE facility or RECA section 5 facility was a
``significant factor in aggravating, contributing to, or causing''
radiogenic cancer for which compensation is claimed under Part E.
It is clear from the scientific literature that it is not possible
to definitively attribute any individual's cancer to any particular
cause, and no commenter identified a method of attribution. As noted in
Science Panel Report No. 6, Use of Probability of Causation by the
Veterans Administration in the Adjudication of Claims of Injury Due to
Ionizing Radiation, issued by the Committee on Interagency Radiation
Research and Policy Coordination of the Office of Science and
Technology Policy, Executive Office of the President (August 1988),
``[a]nalysis of medical findings cannot separate the `radiogenic cases'
from those unrelated to radiation exposure; no `biological markers'
have yet been identified that can unequivocally point to radiogenic
cancers as distinct from non-radiogenic cancers. An excess incidence of
cancer is identifiable in a statistical sense only.''
It is, thus, not surprising that Congress required the use of
statistical probability in the determination whether to compensate an
individual with a claimed cancer under Part B. Under Part B, an
individual will be determined to have sustained ``cancer in the
performance of duty for purposes of the compensation program if, and
only if, the cancer [at issue] was at least as likely as not related to
employment at the facility'' (emphasis added), determined pursuant to
guidelines based upon radiation dose and ``the upper 99 percent
confidence interval of the probability of causation in the
radioepidemiological tables published under section 7(b) of the Orphan
Drug Act (42 U.S.C. 241 note),'' as well as a number of other factors.
The technical documentation prepared by HHS to explain the computer
program used to make this calculation similarly notes that ``it is not
possible to determine, for a given individual, whether his or her
cancer resulted from workplace exposure to ionizing radiation.''
(NIOSH--Interactive RadioEpidemiological Program (IREP) Technical
Documentation, June 18, 2002). Part B, thus, requires that a claimed
cancer be determined to be ``related to'' employment at a covered
facility if the radiation dose and other factors combined indicate that
there is a statistical probability that the cancer would not have
occurred in the absence of work-related exposure to radiation. In other
words, the PoC determination made for purposes of Part B is actually a
determination that there is a 50 percent or better chance that
radiation was a factor, however slight, ``in aggravating, contributing
to, or causing'' a claimed cancer because, in the absence of work-
related exposure to radiation, the cancer would not have occurred at
all.
Because it is impossible to determine the extent to which any
individual factor contributed to the development of cancer, OWCP has
concluded that the only way to comply with the statutory
[[Page 78523]]
mandate in Part E is, in effect, to interpret ``a significant factor''
as including any factor. Accordingly, the determination made pursuant
to HHS regulations issued under Part B whether there is a 50 percent
probability that radiation was a factor in the development of cancer
(i.e., that in the absence of work-related exposure to radiation, the
cancer would not have occurred at all) will be deemed sufficient to
establish that radiation was not only a factor, but was also a
significant factor ``in aggravating, contributing to, or causing'' the
cancer in question.
The position taken by the commenters appears to be based on a
misunderstanding of the test used by Congress in Part B of EEOICPA for
determining coverage for cancer due to exposure to radiation. The
standard used is whether a cancer suffered by a worker is ``related
to'' his or her employment at a covered facility. The commenters
suggest that Part B awards benefits only for cancers caused by exposure
to radiation, while Part E was intended to award benefits where the
cancer was either caused by or contributed to by exposure to radiation.
This misunderstanding may well stem from use of the term ``probability
of causation'' to describe the results of the statistical determination
made by the radioepidemiological tables used in the process. By using
the term ``related to'' in Part B, however, Congress encompassed all
cancers for which there is a statistical probability that exposure to
radiation was a factor in the development of the cancer. Despite the
use of the word ``causation'' in the term ``probability of causation,''
the determination reached is not an individual determination of the
mechanism of cause and effect leading to a particular cancer, which as
explained above is not scientifically possible, but a statistical
prediction of the probability that the cancer would not have occurred
in the absence of exposure to radiation. Thus, the HHS technical
documentation describes PoC as ``the likelihood that an existing cancer
resulted from that [workplace radiation] exposure.'' (NIOSH-IREP
Technical Documentation, June 18, 2002). Scientific analysis does not
distinguish between cancers that are caused or contributed to by
radiation. Since the actual mechanisms of cause (or contribution) for a
given cancer are not known, only probabilistic assertions can be made,
and they address only whether the cancer is more or less likely not to
have occurred absent the exposure. The IREP approach identifies all
conceivable cancers that might have resulted from the radiation
exposure. This probabilistic approach is the only generally accepted
scientific means of assigning responsibility for cancers in relation to
radiation exposure. The Department of Veterans Affairs and the Defense
Department also utilize essentially the same statistical probability
test to adjudicate benefits for potentially radiogenic cancer cases
incurred by veterans exposed to radiation.
Further, it should be noted that the epidemiological method
utilized in this determination is actually far more favorable towards
claimants than merely requiring a determination that radiation exposure
was ``at least as likely as not'' a significant factor. The method
specified by Congress for Part B and adopted by OWCP for Part E
requires that OWCP use the upper 99 percent confidence interval to
determine whether cancers of employees are to be compensable. In
essence, a confidence interval indicates the likelihood that a
statistical sample will reflect actual results and is often
demonstrated in terms of a margin of error (e.g., 5
percentage points in a poll). The precise statistical definition of the
99 percent confidence interval is that if a study or poll were
conducted 100 times, the results would be within the sample's margin of
error 99 times and one time the results would be either higher or
lower. For purposes of the calculations performed under Parts B and/or
E of EEOICPA, an upper 99 percent confidence interval establishes a
significant margin of error in favor of claimants for whether the
exposures that appeared at least as likely as not to cause cancer
actually did. That is, use of this confidence interval means that there
is only a one percent chance that the exposure level has been
underestimated and a 99 percent chance that it has been overestimated.
Because of this extremely claimant-favorable margin of error, we
believe that it is reasonable to conclude that the use of this method
for adjudicating radiogenic cancer claims under Part E will provide
compensation in any case in which it is at least as likely as not that
an employee would not have suffered cancer absent his or her
employment-related exposure to radiation.
This conclusion finds further support in the Report of the NCI-CDC
Working Group to Revise the 1985 NIH Radioepidemiological Tables
(September 2003), which found that the PoC model was a viable method to
adjudicate claims for radiation-related instances of cancer that
appropriately summarized ``the likelihood that prior radiation exposure
might be causally related to cancer occurrence.'' The report described
the Department of Veterans Affairs' use of PoC calculated at the 99
percent credibility limit (the term used in that report for confidence
interval) as ``highly unlikely to exclude persons with meritorious
claims. However it is likely to award many persons whose true [PoC's]
are very much less than 50 percent.'' For example, as noted in that
report, because of the substantial margin for error established by use
of the 99 percent confidence level, a cancer that is actually nine
percent likely to have been caused by the alleged exposure, but for
which data is limited, could yield a PoC of 82 percent under the HHS
PoC guidelines.
OWCP also believes that utilizing the 50 percent PoC process for
Part E is more likely to result in a scientifically valid and
consistent determination process than attempting to reach a
determination based on medical opinions from physicians that inevitably
contain a significant speculative component. Use of the PoC guidelines
for claims under both Part B and Part E allows OWCP to adjudicate the
entitlement of radiogenic cancers that are potentially compensable
under both Part B and Part E in a uniform manner. Any process for
determining coverage of claims for radiogenic cancers that would yield
inconsistent results as to whether that cancer is compensable under
Parts B and E is unlikely to be understood or accepted by claimants and
other stakeholders.
The commenters' argument that eligibility for a radiogenic cancer
under Part E should be based on a lower than 50 percent PoC level
apparently is based on their interpretation of the language of section
7385s-4(c)(1)(A), which requires a determination that it is ``at least
as likely as not that exposure to a toxic substance at a Department of
Energy facility was a significant factor in aggravating, contributing
to, or causing'' the claimed cancer. While Congress utilized different
terminology to establish the test for compensation in Part E and Part
B, the differences reflect the fact that Part B was intended to
establish narrowly drawn tests for specific medical conditions, such as
radiogenic cancer or chronic beryllium disease. Part E, on the other
hand, sets forth a broad test that must be used to determine the
compensability of a virtually unlimited array of illnesses potentially
caused by exposure to the tens of thousands of toxic substances present
at Department of Energy facilities. While there is no way to
distinguish between causation and
[[Page 78524]]
contribution in regard to cancer related to exposure to radiation
(because it is only possible to determine the statistical probability
that, absent work-related exposure to radiation, the employee in
question would not have incurred the cancer or cancers from which he or
she suffered), Part E applies to other types of illnesses for which the
concept of ``contribution'' may be highly relevant. Indeed, unlike the
case of radiogenic cancer, it is possible to determine that toxic
exposure contributed to a number of other illnesses or that other pre-
existing illnesses were aggravated by toxic exposure. Therefore, the
difference in the statutory language between the standard in Part B and
the standard in Part E does not indicate that Part E was intended to
establish a more lenient test, but can be explained by the fact that it
was designed to cover a wide variety of situations and circumstances,
as opposed to the more narrowly drawn Part B radiogenic cancer
standard, where no difference existed between causation and
contribution.
It should also be noted that the regulation specifies that the PoC
model will be determinative under Part E only with respect to claims
where the sole alleged condition is radiogenic cancer. When a claim for
cancer under Part E cannot be accepted based on exposure to radiation
alone because the PoC was determined to be less than 50 percent, the
claimant is provided the opportunity to establish that the cancer was
caused by a combination of exposure to radiation and exposure to one or
more other toxic substances. OWCP will adjudicate those claims for
cancer allegedly due to exposure to radiation combined with exposure to
one or more other toxic substances using the eligibility criteria for
other covered illnesses in Sec. Sec. 30.230 through 30.232. As a
result, no changes were made to Sec. 30.213(c) in the final rule.
Sections 30.230, 30.231 and 30.232
One labor organization suggested that the statutory terms
``aggravated,'' ``contributed to'' and ``caused'' from one portion of
the Part E causation standard appearing in section 7385s-4(c)(1)(A) of
EEOICPA be defined in Sec. 30.230 of the final rule so it will be
``possible to determine how DOL will adjudicate claims.'' However,
these statutory terms have a long and settled history in workers'
compensation law, and OWCP believes any attempt to further define those
terms (which involve matters of administrative discretion and
professional medical opinion) would only lead to increased confusion.
As a result, Sec. 30.230 has not been amended in the final rule.
Two comments from congressional representatives, three from
advocacy groups and one from an individual asserted that it would be
extremely difficult for claimants to satisfy their burden of proof
under Sec. 30.231 to establish both the presence of a toxic substance
and the employee's exposure to the substance without the development of
site exposure assessments of toxic substances. OWCP shares this concern
and is committed to studying all of the available information
pertaining to these sites and making publicly available a listing of
the toxic substances present at such sites. The information compiled
from these studies will be accepted as probative evidence in
determining the eligibility of claimants, barring extraordinary and
unusual circumstances, and Sec. 30.231(b) has been modified to clarify
OWCP's policies regarding this matter. However, the remainder of the
suggested changes to the burden of proof described in Sec. 30.231 have
not been adopted.
One advocacy group objected to the requirement in Sec.
30.232(a)(2) that each claimant under Part E provide a signed medical
release authorizing the release of any diagnosis, medical opinion or
medical records documenting the employee's alleged covered illness and
that it resulted from exposure to a toxic substance. The advocacy group
is concerned that in some cases such documents may no longer exist.
OWCP is aware of this problem and has established procedures in Sec.
30.113 by which a claimant can nevertheless meet this requirement
through the submission of affidavits attesting to medical evidence that
was contained in documents that no longer exist. However, a signed
medical release is needed in all Part E claims so OWCP may thoroughly
investigate the claim. Thus, the suggestion to drop this requirement
was not adopted. The same advocacy group and another advocacy group
suggested that the requirement contained in Sec. 30.232(c) that a
claimant establish that a covered Part E employee suffered an injury,
illness, impairment or disease as a consequence of a covered illness be
deleted. These commenters feel that OWCP claims examiners should have
enough documentation and medical evidence in the case file to made
these determinations without requiring the submission of additional
medical evidence. However, the nature of these consequential conditions
is that they only arise subsequent to the development of an underlying
condition, thus necessitating the submission of more recent medical
evidence establishing their causal relationship to an existing covered
illness. Accordingly, the suggestion was not adopted in the final rule.
Section 30.300
Two comments from individuals, two from congressional
representatives and one from an advocacy group suggested that OWCP use
Physicians Panels to make determinations when there is a dispute with
regard to issues of causation or the degree of impairment. After
considering the use of Physicians Panels in the adjudication of Part E
claims, OWCP decided in the interim final rule to base the formal
adjudicatory and review structure for those claims on the same
successful and streamlined structure that has been used for Part B
claims since 2001. The use of Physicians Panels as deciding bodies for
claims submitted to DOE under former Part D of EEOICPA proved to be
both inefficient and extremely time-consuming. Nevertheless, OWCP will
use a full range of qualified medical specialists to assist in the
development of claims, especially the kind of complex cases these
comments discuss. When a claim involves extreme complexity and multiple
medical disciplines, OWCP may refer the claimant to a panel of
physicians for a medical evaluation. Once a report is received, OWCP's
adjudicatory staff will then consider it when they make a decision on
the claim. OWCP continues to believe that this type of claims
adjudication process provides for a more efficient and expeditious
handling of medical disputes and the application of more uniform
criteria to resolve such disputes. Thus, the suggested changes have not
been adopted.
The same advocacy group suggested that OWCP state in the
regulations the processes it will follow with respect to classified
information that may be pertinent to a claim under EEOICPA, and urged
that in situations where the claimant or his or her representative
lacked the requisite security clearances, OWCP should ask the Ombudsman
to provide a properly cleared lawyer or qualified technical expert to
evaluate the factual evidence and advocate on behalf of the claimant
during the claims adjudication process. OWCP is also concerned about
the impact of using classified information to adjudicate claims under
the Act. However, since it is not the classifying agency with respect
to such information, it cannot allow greater access to the information
than is currently permitted. As for the suggestion that OWCP should ask
the Ombudsman to nominate or otherwise provide a person with the
requisite security clearance to advocate for
[[Page 78525]]
claimants, the Ombudsman is not authorized to perform that function by
either the statute or Secretary's Order 1-2005 (70 FR 33328), which
established the Office of the Ombudsman within the Department. The
Ombudsman does not have any role in the claims adjudication process
administered by OWCP. Thus, the suggestions were not adopted in the
final rule.
Another advocacy group suggested that the claims adjudication
processes described in Sec. 30.300 be altered to include a review by
an ``independent entity'' like an administrative law judge. This same
suggestion was made by several commenters with respect to this section
as it appeared in the first interim final rule governing its
administration of the Act that OWCP published on May 25, 2001 (66 FR
28948). As it noted when it subsequently published the first final rule
governing its administration of EEOICPA on December 26, 2002 (67 FR
78874), OWCP believed that utilizing administrative law judges or
another type of independent review body would unnecessarily complicate
and delay the claims adjudication process to the detriment of
claimants. The commenter did not present any new reason not previously
considered by OWCP when it originally decided to retain the
adjudicatory structure described in Sec. 30.300, or any evidence of
problems with it since its inception in 2001. Therefore, the suggested
change to this section of the regulations was not adopted.
Sections 30.301 and 30.302
One advocacy group suggested that OWCP extend the ability to
request issuance of a subpoena to include Part E claims as well as Part
B claims, and that this ability should be extended to all stages of the
claims adjudication process. Section 30.301 indicates that a claimant
may request that a Final Adjudication Branch (FAB) reviewer issue a
subpoena in connection with a claim under Part B of EEOICPA. The
statutory authority underlying this section is derived from section
7384w, which only applies to claims filed under Part B; Part E does not
contain a similar provision. Therefore, OWCP does not have authority to
extend the ability to request a subpoena to claimants under Part E.
Further, OWCP has found it to be more efficient to limit the use of
subpoenas by claimants to the portion of the claims adjudication
process that includes the right to request an oral hearing, i.e., the
portion before the FAB. OWCP claims examiners regularly assist
claimants in obtaining relevant documents and information in the early
development of claims under EEOICPA, and adding subpoena requests to
this assistance would not appear to be either efficient or productive.
Therefore, the suggested changes to Sec. 30.301 have not been adopted.
One attorney suggested that Sec. 30.302 be modified so that
claimants will be relieved of their obligation to pay the costs
associated with subpoenas they have requested when the subpoenaed
witness submits evidence into the case record that is relevant to the
claimant's case and where the witness failed before the hearing to
provide written evidence after being requested to provide such evidence
by the claimant. OWCP believes that the suggested modification
erroneously presumes that there will likely be situations where a
witness will refuse to provide requested evidence without issuance of a
subpoena by a FAB reviewer. This has not been the experience of OWCP in
other benefit programs it administers, and OWCP does not contemplate
that it will occur in its future administration of Part B. Up to the
present time, OWCP has not encountered significant difficulty obtaining
the factual or medical evidence necessary for it to adjudicate these
claims, and there is no reason to think that these sorts of
difficulties will occur in the future. Therefore, the suggestion to
modify Sec. 30.302 was not adopted in the final rule.
Section 30.303
DOE commented that the 60-day period within which it was required
to respond to a request from OWCP for information or documents relevant
to a claim under Part E of the Act in Sec. 30.303 was unreasonable,
and noted that it would not be able to respond to such a request in a
timely manner if the evidence needed to be reviewed for
declassification purposes. As an alternative, DOE proposed that the
standard for compliance with such a request be ``as soon as possible.''
While it does not dispute the validity of this concern, OWCP believes
that the suggested proposal would effectively remove the time period
for response from Sec. 30.303. However, in order to accommodate DOE's
belief that it requires additional time to comply with these necessary
requests, OWCP has amended Sec. 30.303(a) to provide DOE with 90 days
within which to respond.
Sections 30.307 and 30.316
One attorney suggested that Sec. Sec. 30.307(a) and 30.316(e) be
amended to provide that a copy of the recommended decision and the
final decision be sent to both the claimant and the claimant's
representative. These sections currently provide that the recommended
decision and final decision be sent to the claimant, unless he or she
has a representative. In such a case, the recommended decision and
final decision are to be sent only to the representative. OWCP believes
that these suggestions have merit, and also notes that this has been
the administrative practice of the program for some time. Thus,
Sec. Sec. 30.307(a) and 30.316(e) have been amended in the final rule
to provide that OWCP will send a copy of the recommended decision and
the final decision on a claim to both the claimant and the claimant's
representative, if any.
Section 30.315
One attorney suggested that Sec. 30.315 be amended to permit, at
the discretion of the FAB reviewer, a postponement of a hearing if the
claimant's representative provides reasonable notice that the
representative has a medical reason that prevents his or her attendance
at the claimant's hearing. The interim final rule permits such a
postponement where the claimant is prevented from attending the hearing
for medical reasons, and it is the current practice of OWCP to permit
such postponements for representatives whose attendance is prevented
for the same reasons. Thus, Sec. 30.315(b) has been amended as
suggested by the commenter.
Section 30.320
One attorney suggested that Sec. 30.320(b) be amended to require
the reopening of a final adverse decision on a claim if the claimant
submits new evidence of a medical condition or discovers additional
medical reports. The section currently requires the Director for Energy
Employees Occupational Illness Compensation to a reopen a final
decision on a claim if he concludes that the claimant has submitted new
and material evidence with regard to either covered employment or
exposure to a toxic substance, or identifies either a material change
in the PoC guidelines, a material change in the dose reconstruction
methods or a material addition of a class of employees to the Special
Exposure Cohort. The experience of OWCP with respect to the processing
and adjudicating of claims based on occupational or covered illnesses
is that new medical evidence of a condition is easily obtained and,
upon consideration, rarely sufficient to warrant the reversal of an
earlier determination regarding a claimed condition. To permit an
automatic reopening of a final decision based on such evidence would
inevitably lead to
[[Page 78526]]
numerous frivolous reopenings and the attendant administrative
inefficiencies would deprive claimants with meritorious claims of the
opportunity to have those claims adjudicated in a timely manner. It
should be noted, however, that claims may be reopened on the basis of
new medical evidence by the Director under Sec. 30.320(a), which
permits the Director, at his discretion, to reopen a final decision at
any time. For these reasons, the suggestion regarding Sec. 30.320(b)
has not been adopted.
Sections 30.400, 30.403, 30.404 and 30.405
OWCP received three comments from advocacy groups, one from an
attorney and two from congressional representatives objecting to the
wording in Sec. Sec. 30.400, 30.403, 30.404 and 30.405 that suggested
that there was no way for a claimant to administratively challenge a
denial of a particular medical benefit. The wording in question was
intended to describe the process that OWCP's medical billing contractor
uses to inform claimants of decisions on medical bills that are
submitted for payment. However, this wording incorrectly suggested that
there was no administrative method by which a claimant could challenge
an adverse medical billing determination by OWCP's contractor. To
rectify this situation, and as suggested by the commenters, Sec. Sec.
30.400, 30.403, 30.404 and 30.405 have been changed to indicate that a
claimant may administratively challenge an adverse medical billing
determination by utilizing the internal adjudicatory processes
described in subpart D of the regulations.
Sections 30.410 and 30.411
One advocacy group asked that OWCP clarify the provisions in
Sec. Sec. 30.410(b) and 30.411(c) regarding disruptions of directed
medical examinations. The provisions in question are intended to remind
employees and their representatives that these medical examinations are
under the control of medical professionals and are not, therefore, a
proper forum for disputing aspects of individual claim adjudications.
These physicians have been asked to conduct an examination at the
request of OWCP in order to further clarify aspects of an employee's
alleged medical condition, not to treat the employee, and therefore
they do not have the type of ethical obligations regarding the employee
that would otherwise naturally arise with a normal ``doctor-patient''
relationship. Since any attempt to interfere with a directed
examination would disrupt the purpose of the examination, Sec.
30.410(b) and Sec. 30.411(c) set out the consequences of taking such
actions, and have not been altered in the final rule.
This same advocacy group disagreed with Sec. 30.411(b), which
states that when OWCP finds that a conflict in the medical evidence
exists, OWCP will select a third physician to conduct a referee
examination that resolves such conflict. This process has been in place
since the inception of OWCP's administration of Part B, and was not
altered in any way with the promulgation of the interim final rule.
Further, this same process has been used successfully in other benefit
programs administered by OWCP. Accordingly, Sec. 30.411(b) was not
modified in the final rule.
The same advocacy group and another advocacy group criticized the
absence of any ``conflict of interest'' provisions with respect to
physicians in the interim final rule. These comments asserted that it
was important that OWCP indicate that physicians involved in the claims
adjudication process who submitted medical evidence upon which OWCP
claims examiners would make determinations on claims would be subject
to some sort of constraints regarding such matters as prior involvement
with a claimant, former work for a claimant's employer, etc. OWCP
agrees with the general thrust of these comments, and has added
provisions to Sec. Sec. 30.410 and 30.411 that indicate that
physicians who perform directed medical examinations at the request of
OWCP in connection with the claims adjudication process will be subject
to ``conflict of interest'' standards devised by OWCP to ensure their
compliance with ethical standards of professional conduct.
Sections 30.500 and 30.501
A total of 521 comments objecting to the definitions of ``covered''
child and ``surviving spouse'' for the purposes of Part E in Sec.
30.500(a) were received from 502 individuals and one lay representative
(several individual commenters submitted multiple comments on this
issue). While the definition of a ``surviving spouse'' is the same one
that applies to Part B claims, a ``covered'' child under Part E must
meet the same definition of a ``child'' used in Part B and, as of the
date of the covered Part E employee's death, be either under the age of
18, under the age of 23 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. These
definitions merely follow, as they must, the definitions for these two
terms that appear in section 7385s-3(d). Since these terms cannot be
altered through the rulemaking process, the suggestions were not
adopted and no changes were made to Sec. 30.500(a).
The same lay representative and two of the same individuals also
objected to the order of precedence for survivors under Part E that is
set out in Sec. 30.501(b) and argued that a surviving spouse should
not be required to share an award with children of a deceased Part E
employee under any circumstances. This section states that if there is
a surviving spouse and at least one ``covered'' child of a 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, half of the payment is made to the surviving spouse and the
other half is shared equally among all ``covered'' children of the
employee who are living at the time of payment. As was the case with
the survivor definitions discussed in the preceding paragraph, the
regulatory order of precedence for survivors under Part E of the Act
merely tracks the statutory order of precedence contained in section
7385s-3(c)(3) of EEOICPA. Since the order of precedence for survivors
under Part E cannot be modified by regulation, the suggestion was not
adopted.
Section 30.505
Two advocacy groups suggested that the unified benefit payment
processes for both Parts B and E described in Sec. 30.505(a) be
amended to require OWCP to issue a ``partial'' award of $12,500 to
covered Part E employees at the time it determines that they have
contracted a covered illness, and to determine the balance of any
compensation due them within another six months. Unlike Part B of
EEOICPA, which compensates individuals upon a finding that a covered
Part B employee contracted an occupational illness, Part E monetary
compensation can only be awarded if OWCP further determines that a
covered Part E employee's wage-loss, impairment or death was due to his
or her covered illness. Thus, this suggestion would result in the
issuance of a monetary award to a claimant before OWCP has determined
that the statutory entitlement criteria established by Part E have been
met, and that a payment is due after any required offsets have been
calculated. Shortening the monetary benefit payment processes for Part
E as suggested by these two commenters would violate the explicit terms
of EEOICPA, and therefore the
[[Page 78527]]
suggestions to change Sec. 30.505(a) have not been adopted.
One labor organization suggested that Sec. 30.505(d) be amended to
permit a claimant to receive up to the $250,000 maximum aggregate
compensation payable under Part E for both wage-loss and impairment,
for each of his or her covered illnesses. As OWCP noted in the preamble
discussion of this provision of the interim final rule, 42 U.S.C.
7385s-12 ``limits the aggregate compensation (other than medical
benefits) that OWCP may pay under Part E to all claimants for each
individual whose illness or death serves as a basis for compensation or
benefits under Part E to a total of $250,000. This is the only reading
of the statutory language that is consistent with the statutory
requirement that the computation of both impairment benefits and wage-
loss benefits under [section] 7385s-2 be based upon impairment or wage-
loss that is 'the result of any covered illness.' This reading is also
consistent with congressional intent, as reflected in the Conference
Report for Public Law 108-375, which states that the `maximum aggregate
benefit available under [Part] E of EEOICPA is $250,000.' See H.R.
Conf. Rep. No. 108-767, at 894 (2004).'' Thus, the suggested changes
have not been adopted.
Section 30.509
Two advocacy groups asked why Sec. 30.509(c) indicates that OWCP
will only make an impairment determination for a deceased Part E
employee if an eligible survivor makes an election to receive the
compensation of the employee as permitted by section 7385s-1(2)(B) of
EEOICPA, when the Conference Report states that survivors under Part E
are to receive a minimum lump-sum payment of $125,000. These comments
are based on a misunderstanding of the operation of Sec. 30.509, which
describes the very limited universe of survivors who are eligible to
make the election described in section 7385s-1(2)(B), and the fact that
the only survivors entitled to utilize this election provision would
not be entitled to survivor benefits because the election is only
available to survivors of a covered Part E employee who died ``from a
cause other than the covered illness of the employee.'' Survivors who
make this election will therefore not be eligible to receive any other
compensation (such as the $125,000 lump-sum payment) under the terms of
section 7385s-3. Accordingly, the provision discussed in Sec.
30.509(c) is correct, and no changes were made to this section in the
final rule.
Sections 30.513 Through 30.517
One lay representative suggested that in Sec. 30.517, OWCP should
more specifically describe the circumstances under which it would
decide to waive its statutory right to recover an overpayment pursuant
to section 7385j-2 of EEOICPA. While Sec. 30.513 of the interim final
regulations notes the general authority of OWCP to waive recovery of an
overpayment of EEOICPA benefits, Sec. Sec. 30.514 through 30.517
elaborate on that authority with a substantial amount of detail. In
light of the variety of factual circumstances and fairness
considerations that may apply in any specific case, it is not possible
to identify particular circumstances rather than general principles
concerning how this authority is to be exercised. Therefore, since
Sec. Sec. 30.513 through 30.517 in the interim final regulations
adequately identify the standards that OWCP will use to make these
determinations without depriving OWCP of sufficient flexibility to
administer this aspect of the program, the suggested changes have not
been adopted.
Section 30.600
One individual suggested that Sec. 30.600(b) make it clearer that
a claimant can grant a person a ``power of attorney'' to act on his or
her behalf, and that such person can then designate a representative to
pursue the claim under EEOICPA. OWCP believes there is merit in this
suggestion. Thus, additional language was added to Sec. 30.600(b) to
clarify that a person who has been granted a power of attorney by a
claimant under EEOICPA may designate a representative to pursue that
claim before OWCP. Also, one attorney suggested that OWCP change Sec.
30.600(c)(2) to allow an attorney or representative to complete, but
not sign, a Form EN-20. OWCP believes that this suggestion has merit,
and Sec. 30.600(c)(2) has been amended as requested.
Section 30.603
One attorney suggested that the 10 percent limit for attorney fees
for filing objections to a recommended decision should apply to the
amount of the lump-sum awarded in the final decision. The interim final
rule currently applies this limit to the amount by which the lump-sum
award is increased as a result of the objections, and is consistent
with the mandate in section 7385s-9 to limit such fees in Part E cases
in the same manner as Part B cases. Since Part B claimants either
receive a full lump-sum award or no award at all, successful objections
to a recommended decision provide a claimant with an ``increased''
lump-sum award equal to the entire amount payable under Part B. Section
30.603(b)(2) in the interim final rule merely applies this same
principle to Part E cases as required by the explicit terms of the Act.
Since lump-sum awards to covered Part E employees may vary according to
their level of impairment and the extent of their wage-loss, there may
be instances where an objection to a recommended decision proposing to
award benefits under Part E may result in a final decision awarding
greater benefits. In such a case, the gain to the covered Part E
employee from the filing of the objection will not be the entire lump-
sum award; the gain will the difference between the lump-sum payment
and the amount proposed in the recommended decision. To be consistent
with Part B, as required by the statute, the attorney fees under Part E
have to be limited to the difference in lump-sum amounts. Thus, the
suggested change has not been adopted.
This attorney and two other attorneys also objected to the
provision in Sec. 30.603(b)(1) that does not permit a representative
to charge a two percent fee unless he or she was retained prior to the
initial filing of the claim. This provision, however, is based on the
limitation contained in 42 U.S.C. 7385g(b)(1), which states that a
representative may only charge a two percent fee ``for the filing of an
initial claim for payment of lump-sum compensation. * * *'' OWCP
believes that it would violate the statute to permit a representative
to charge a fee of two percent of the lump-sum award if the
representative was retained after the claim was filed. One of these two
other attorneys also suggested that the term ``initial claim'' be
defined to include the filing of amended claim forms, the submission of
additional documents or data, or the reopening of the claim following
the issuance of a final decision by the FAB; in the alternative, he
also suggested that the limitations described in the interim final rule
not apply to claims that were filed prior to the effective date of that
rule, i.e., June 8, 2005. OWCP believes that an expansive definition of
the term ``initial claim'' would be inconsistent with the plain meaning
of the statute, which has not changed in this regard since section
7385g was amended on December 28, 2001. For this same reason, OWCP also
believes that there would be no justification for applying the fee
limitations described in Sec. 30.603 only to claims filed on or after
June 8,
[[Page 78528]]
2005. Thus, none of these suggested changes were adopted in the final
rule.
Section 30.609
Two advocacy groups disagreed with the requirement in Sec. 30.609
that claimants must report (for offset purposes) any payments that they
receive due to medical malpractice resulting from treatment of their
occupational illness or covered illness. Such medical malpractice
payments have as their genesis exposures for which compensation is
payable under Part B or Part E of EEOICPA. Under section 7385 of
EEOICPA, benefits payable under Part B or Part E must be offset to
reflect these types of payments. Thus, OWCP must be informed of these
types of payments so it can perform the statutorily mandated offset of
EEOICPA benefits, and the suggestion to eliminate this section has not
been adopted in the final rule.
Section 30.626
One lay representative and five individuals objected to Sec.
30.626, which describes the required coordination of payments under
Part E of EEOICPA with benefits from state workers' compensation
programs for the same covered illness or illnesses. However, OWCP is
required to coordinate Part E benefits in this manner by section 7385s-
11 of the Act. Thus, the suggestion to eliminate this section has not
been adopted.
Sections 30.801, 30.805, 30.806 and 30.815
One individual suggested that Sec. 30.801 indicate that
compensation will be provided to employees who have suffered occasional
days of lost pay due to their covered illnesses. However, Part E is not
a program that provides compensation for any wage-loss, regardless of
amount, that a covered Part E employee may experience due to his or her
covered illness. Instead, Part E only provides compensation under a
specific formula in section 7385s-2(a)(2)(A) based on a qualifying
amount of wage-loss sustained in a given calendar year, and this
formula cannot be altered in this final rule. Thus, the suggestion has
not been adopted.
One labor organization asserted that it is more difficult for
employees who worked intermittently at DOE facilities to establish
their average annual wage and their alleged calendar years of wage-loss
through reliance on wage data received from the Social Security
Administration, and that this will result in employees having to use
the methods of Sec. 30.806 to convince OWCP to determine a different
average annual wage and/or the extent of compensable calendar years of
wage-loss than it determined using Sec. 30.805. However, the labor
organization did not put forward any discernable proposal to address
the purported problem it raised in its comment. While it is possible
that some employees may incur difficulties in securing the type of
records described as acceptable to OWCP in Sec. 30.806, these
difficulties alone should not relieve them of their burden to produce
records that show a level of wage-loss sufficient to make them eligible
for an award. OWCP claims examiners are instructed to accept tax
returns, pay stubs, union records and pension records as evidence of
earnings. In addition, claims examiners can request earning records
from employers. Therefore, no change has been made to Sec. 30.806 in
the final rule. However, because of these concerns, Sec. 30.805 has
been amended in the final rule to more precisely define the term
``wages.'' Another labor organization asserted that some occupations
are more likely to be affected by the business cycle than others, and
asked that the wages of employees in these occupations be determined by
looking to the average wages of their ``peer group'' rather than to
their own individual wages. OWCP does not believe that adjustments for
fluctuations in demand for labor in certain occupations can be made
fairly or efficiently, nor does it believe that it has the authority to
make this type of change to the statutory formulae for determining
these matters by regulation. As a result, this suggested change has
also not been adopted.
One individual suggested a stylistic change for the wording of
Sec. 30.815(b), which he felt was too confusing. Section 30.815(b) is
merely intended to inform readers that in most situations, OWCP will
determine the number of compensable years of wage-loss in accordance
with the procedures described in Sec. Sec. 30.800 through 30.811. The
suggested change is not substantive in nature and would be, in OWCP's
opinion, more confusing than the language that currently appears in
Sec. 30.815(b). Therefore, the suggested change to this section has
not been adopted in the final rule.
Section 30.901
One labor organization questioned OWCP's ability to make the type
of apportionment determinations described in Sec. 30.901(a) of the
interim final rule and asserted that there was no reasoned basis for
allocating the cause of a permanent impairment of an organ or body
function among both compensable and non-compensable exposures. This
provision was based on the somewhat ambiguous language of section
7385s-2(a)(1)(A) of the Act, which can be read in such a way as to
require the apportionment described in Sec. 30.901(a) of the interim
final rule. However, after carefully considering both the dearth of
support for such apportionments in the medical literature and the
practical difficulties that claims examiners would be faced with if
they were required to make these particular types of determinations,
OWCP agrees with the commenter and has decided to interpret the
statutory provision in question as not requiring such an apportionment.
Thus, OWCP has modified Sec. 30.901(a) in the final rule to remove
this requirement. Conforming changes have also been made to Sec. Sec.
30.901(d), 30.902, and 30.908(b) and (c).
One lay representative, four individuals and the same labor
organization also criticized the description of the criteria for
physicians to perform impairment evaluations set out in Sec.
30.901(b), and suggested that OWCP modify that description to make the
criteria less restrictive so as to increase the potential pool of
physicians who can perform impairment evaluations acceptable to OWCP.
After considering several different potential criteria since the
issuance of the interim final rule, OWCP believes that it has developed
criteria that will satisfy the commenters' concern that there will be
few physicians who meet the criteria in a given locality, or that
claimants will not be able to use their local physicians to perform the
testing and measurements upon which an impairment evaluation under Part
E can be performed by a physician who meets the criteria. As changed,
these criteria will now provide that a physician has to establish (to
OWCP's satisfaction) that he or she possesses knowledge and experience
in using the American Medical Association's Guides to the Evaluation of
Permanent Impairment (AMA's Guides) and/or possesses the requisite
professional background and work experience to conduct acceptable
impairment evaluations. Further, while a claimant's local physician may
not be able to satisfy all of the criteria described in Sec. 30.901(b)
and perform the impairment evaluation itself, the claimant can still
elect to have such a physician perform the underlying objective testing
and other procedures that another physician who does satisfy the
criteria could rely upon in arriving at an evaluation of his or her
impairment. Since OWCP has changed the policy to which the commenters
[[Page 78529]]
objected, no changes were made to Sec. 30.901(b) in the final rule.
Sections 30.905 and 30.906
One individual objected to the provision in Sec. 30.905(b)(1) that
only impairment evaluations performed by physicians who meet the
criteria identified by OWCP will be considered probative. The comment
suggests that impairment evaluations performed by physicians of the
Radiation Exposure Screening and Education Program (RESEP) that is
administered by the Health Resources and Services Administration within
HHS be considered probative under Part E of EEOICPA. OWCP has no
objection to claimants submitting impairment evaluations performed by a
RESEP physician, so long as that physician meets the qualifications set
forth by OWCP. The same would be true for physicians who are affiliated
with other government-sponsored health clinics. Not all physicians,
however, have the necessary training to perform impairment evaluations
(as noted above, claimants can utilize any physician to perform the
testing and measurements upon which an impairment evaluation can be
performed by a physician who meets OWCP's criteria). Thus, OWCP must
put into place certain criteria to identify those physicians who are
qualified to perform impairment evaluations upon which it can base its
ratings. As a result, no changes to Sec. 30.905(b)(1) were made in the
final rule. Two other individuals objected to the requirement found in
Sec. 30.905(b)(2) that an impairment evaluation must have been
performed within one year of its submission to OWCP for it to be
considered probative in determining the permanent impairment of a
covered Part E employee and suggested that this requirement be deleted.
OWCP does not find any merit to this objection because the Act requires
OWCP to determine the minimum impairment rating of the employee as of
the time it is adjudicating the claim for the award. In light of this
requirement, OWCP believes that it is reasonable to insist that the
rating be based on an impairment evaluation that is no more than one
year old. Two advocacy groups also suggested that this same requirement
be deleted because covered Part E employees with previous temporary
impairments from which they have recovered would not receive
compensation. OWCP believes that the reasoning behind these latter
comments ignores the mandate in the Act to compensate covered Part E
employees for their permanent impairment rather than their temporary
impairment. Thus, the suggestions to delete the requirement in Sec.
30.905(b)(2) were not adopted.
Two attorneys suggested that Sec. 30.906 be amended to provide
that OWCP will pay for the cost of any additional impairment evaluation
if such impairment evaluation increases the minimum impairment rating.
In the interim final rule, this section states that OWCP will pay for
one evaluation if it meets the criteria set forth in Sec. 30.905(b),
and that it will also pay for any additional impairment evaluations
that it directs the employee to undergo (and reimburse the employee for
reasonable expenses, as defined in the rule, that are associated with
such an evaluation). OWCP is not persuaded that there is a reasonable
basis for paying for additional impairment evaluations beyond those
already described in Sec. 30.906, and therefore the suggestion was not
adopted in the final rule.
Sections 30.907 and 30.908
Two advocacy groups asserted that Sec. 30.907(b) did not provide a
process whereby a dispute regarding a covered Part E employee's
impairment evaluation could be resolved. While Sec. 30.907(b) in the
interim final rule noted that the procedures for ``directed medical
examinations'' set out in Sec. Sec. 30.410 and 30.411 of the
regulations applied to these types of disputes, OWCP acknowledges that
it did not explicitly note that such procedures include the process by
which OWCP resolves medical disputes in general. Therefore, in order to
make this provision more clear, Sec. 30.907(b) has been modified
slightly in the final rule to explicitly note that OWCP will resolve
medical disputes regarding impairment through the ``referee
examination'' process set out in Sec. 30.411.
One labor organization objected to the provisions in Sec. 30.908
requiring that medical evidence of impairment submitted to the FAB in
opposition to the impairment evaluation that was relied upon in a
recommended decision conform to the requirements set out in Sec.
30.905(b) in order to be afforded any probative value, and noted that
claimants have the burden of proving that the new medical evidence has
greater probative value than the impairment evaluation relied upon in
the recommended decision. Requirements of this sort that set out
minimum standards for new evidence and the assumption of the burden of
proof when challenging a determination made below are standard features
of any adjudicative system, and are necessary to conserve scarce
administrative resources. OWCP does not agree that their use in this
context is either unduly burdensome on claimants or inherently unfair
in a system such as Part E. Therefore, no changes were made to Sec.
30.908 as a result of the comment.
Section 30.910
Two comments from congressional representatives, four from advocacy
groups and two from individuals objected to the provision in Sec.
30.910(a) of the interim final rule that an impairment that cannot be
assigned a numerical percentage using the AMA's Guides will not be
included in a covered Part E employee's impairment rating, and noted
that the Conference Report for Public Law 108-375 suggests that for
those illnesses for which the AMA's Guides do not provide a method to
assign a numerical percentage, the Department should devise another
method to determine the amount of an impairment award to a covered Part
E employee. See H.R. Conf. Rep. No. 108-767, at 893 (2004). However, as
the Department pointed out when it promulgated Sec. 30.910, the plain
language of section 7385s-2(b) requires OWCP to determine the amount of
an impairment award to a covered Part E employee in accordance with the
AMA's Guides and does not contain the exception referred to in the
Conference Report for ``an illness for which the [AMA's Guides] do not
provide an impairment rating. * * *'' It should be noted that this
suggestion appears to be based on the assumption that the AMA's Guides
cannot be used to determine an impairment rating for an illness unless
they explicitly provide a method to evaluate that particular illness.
However, because the Guides evaluate the impairment of organs and body
functions rather than illnesses per se, even a newly identified illness
can be evaluated using the Guides so long as its effects on those
organs and/or body functions are known and quantifiable.
As noted above, section 7385s-2(b) of EEOICPA requires that
impairment ratings ``shall be determined in accordance with the
American Medical Association's Guides to the Evaluation of Permanent
Impairment.'' The discussion of mental impairments that do not
originate from documented physical dysfunctions of the nervous system
in Chapter 14 (Mental and Behavioral Disorders) of the AMA's Guides
states that ``there are no precise measures of impairment in mental
disorders. The use of percentages implies a certainty that does not
exist.'' Chapter 14 then explains that the authors of the current
(fifth) edition of
[[Page 78530]]
the AMA's Guides are ``unaware of data that show the reliability'' of
any percentages for these particular types of impairments and that
``the Committee on Disability and Rehabilitation of the American
Psychiatric Association advised Guides contributors against the use of
percentages in the chapter on mental and behavioral disorders of the
fourth edition, and that remains the opinion of the authors of the
present chapter.'' In support of their decision not to assign numerical
percentages to mental impairments that do not originate from documented
physical dysfunctions of the nervous system, the authors point out that
``[n]o available empirical evidence supports any method for assigning a
percentage of impairment of the whole person'' to these disorders.
Since the AMA's Guides clearly takes the position that there is no
basis to calculate numerical percentages of mental impairment due to
mental disorders, attempting to do so by devising a rating mechanism
independent of the AMA's Guides would violate EEOICPA's requirement
that impairment ratings be determined ``in accordance with'' the AMA's
Guides. Thus, Sec. 30.910(b) indicates that these types of mental
impairments will not be included in an impairment rating; no change was
made to this section in the final rule.
Section 30.911
Two comments from individuals, two from congressional
representatives, two from advocacy groups and two from attorneys
questioned the appropriateness of the provision in Sec. 30.911(a) in
light of the progressive nature of the covered illnesses that would be
compensable under Part E of EEOICPA. OWCP's intent in the interim final
rule was to apply the requirement that an individual reach ``maximum
medical improvement'' in order for an impairment rating to be
determined in a manner that is appropriate for the conditions covered
by EEOICPA. OWCP recognizes that many of these covered illnesses are
progressive, and that many employees may find themselves in a situation
where their accepted condition is not likely to improve but can be
expected to gradually deteriorate. The intent in the interim final rule
was to allow for minimum impairment ratings to be calculated and
compensated in such circumstances. However, since the wording of Sec.
30.911(a) in the interim final rule did not convey this intent as
clearly as it could have, this provision has been modified slightly in
the final rule by changing the word ``change'' to ``improve'' in the
final rule.
II. Miscellaneous Comments
Several of the 533 timely comments the Department received raised
issues that either were not addressed in the interim final regulations
or involved extraneous matters. The Department's analysis of these
miscellaneous comments follows:
The Ombudsman
OWCP received one comment from an advocacy group pointing out that
the interim final regulations did not address the role and functions of
the Ombudsman provided for in section 7385s-15 of EEOICPA. However,
this omission was intentional and required by the terms of section
7385s-15(d), which requires that the Ombudsman be independent ``from
other officers and employees of the Department [of Labor] engaged in
activities relating to the administration of the provisions of'' Part E
of EEOICPA. Instead, the role and the functions of the Ombudsman are
set out in Secretary's Order 1-2005. Therefore, the final rule also
does not address either the role or the functions of the Ombudsman.
The Rulemaking Process
OWCP received one comment from an attorney on a specific aspect of
the rulemaking process. Without identifying any particular provision of
the regulations, the commenter opined that at least some of them would
not be comprehensible to some members of the public and should be
rewritten in ``plain English.'' OWCP acknowledges that some of the
regulations for Part E involve complex medical matters or complicated
arithmetic calculations. However, while these concepts can be difficult
to comprehend, OWCP went to great lengths in an effort to ensure that
the corresponding regulations in subparts I and J were written in a
clear and understandable manner. Since the commenter neither identified
a particularly incomprehensible provision of the regulations nor
provided any suggested improvements, no additional changes were made to
the regulations based on this comment.
Coverage
One DOE contractor and four individuals made suggestions about
which workers or survivors should be covered by Part E of EEOICPA.
However, the Act mandates the categories of workers and survivors
covered under Part B and Part E and the regulations cannot be changed
to either expand or restrict these categories unless the Act is
amended. Therefore, the suggested changes have not been made in this
final rule.
III. Publication in Final
The Department of Labor has determined, pursuant to 5 U.S.C.
553(b)(B), that good cause exists for waiving public comment on this
final rule with respect to the following changes: (1) Corrections of
typographical errors; and (2) minor wording changes and clarifications
that do not affect the substance of the regulations. For these changes,
publication of a proposed rule and solicitation of comments would be
neither necessary nor fruitful.
IV. Statutory Authority
Section 7384d of EEOICPA provides general statutory authority,
which E.O. 13179 allocates to the Secretary, to prescribe rules and
regulations necessary for administration of Part B of the Act. Section
7385s-10(e) also provides the Secretary with the general statutory
authority to prescribe regulations necessary for administration of Part
E of the Act. Sections 7384t, 7384u and 7385s-8 provide the specific
authority regarding medical treatment and care, including authority to
determine the appropriateness of charges. The Federal Claims Collection
Act of 1966, as amended (31 U.S.C. 3701 et seq.), authorizes imposition
of interest charges and collection of debts by withholding funds due
the debtor.
V. Paperwork Reduction Act
This final rule contains information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et
seq. The requirements set out in Sec. Sec. 30.401, 30.404, 30.420,
30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule were
both submitted to and approved by OMB under the PRA in OMB Control Nos.
1215-0054 (expires June 30, 2007), 1215-0055 (expires October 31,
2009), 1215-0137 (expires March 31, 2007), 1215-0144 (expires October
31, 2009), 1215-0176 (expires January 31, 2007), 1215-0193 (expires
March 31, 2007) and 1215-0194 (expires March 31, 2007). The
requirements in Sec. Sec. 30.100, 30.101, 30.102, 30.103, 30.111,
30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215,
30.221, 30.222, 30.226, 30.231, 30.232, 30.415, 30.416, 30.417, 30.505,
30.620, 30.806, 30.905 and 30.907of this rule were also both submitted
to and approved by OMB under the PRA in OMB Control No. 1215-0197
(expires August 31, 2007).
Following publication of this final rule, the Department plans to
seek OMB approval of two new information collections under the PRA and
will issue 60-day Federal Register notices
[[Page 78531]]
seeking public comment on (1) a collection that will annually request
updated information relating to state workers' compensation benefits
received by EEOICPA Part E beneficiaries; and (2) a collection annually
requesting verifying information on state workers' compensation
benefits from state authorities. These collections will implement the
Department's responsibilities under section 7385s-11 of EEOICPA.
VI. Executive Order 12866
This rule is being treated as a ``significant regulatory action,''
within the meaning of E.O. 12866, because it is ``economically
significant'' as defined by section 3(f)(1) of that Order. The payment
of the benefits provided for by EEOICPA through the program
administered pursuant to this regulatory action has an annual effect on
the economy of $100 million or more. However, this rule does not
adversely affect in a material way the economy, a sector of the
economy, productivity, jobs, the environment, public health or safety,
or State, local, or tribal governments or communities, as defined by
section 3(f)(1) of E.O. 12866. This rule is also a ``significant
regulatory action'' because it meets the criterion of section 3(f)(4)
of that Order in that it raises novel or legal policy issues arising
out of the legal mandate established by EEOICPA.
Based on the factors and assumptions set forth below, DOL's
estimate of the aggregate cost of benefits and administrative expenses
of this regulatory action implementing Part B and Part E of EEOICPA is,
in millions of dollars:
----------------------------------------------------------------------------------------------------------------
FY2007 FY2008 FY2009 FY2010 FY2011
----------------------------------------------------------------------------------------------------------------
Admin.......................................... $162 $163 $147 $127 $111
Benefits....................................... 1,123 861 752 656 579
----------------------------------------------------------------------------------------------------------------
The Department's estimate of the benefits to be paid pursuant to
EEOICPA and of the administrative costs of providing those benefits is
based on program experience to date, data collected from other federal
agencies, assumptions about the incidence of cancer, covered beryllium
disease, chronic silicosis and other covered illnesses in the claimant
population, life expectancy tables, dose reconstruction acceptance
rates, Physicians Panel acceptances under the former Part D of the Act,
the anticipated distribution of benefit amounts, and its experience in
estimating administrative and medical costs of workers' compensation
programs. The Department's benefit estimates are not based on any
projections regarding the number of future additions to the Special
Exposure Cohort (SEC).
For Part B benefits, estimates for cancer claims are based on the
actual number of claims received by OWCP, the anticipated number of
future claims, and the historical approval rates for both SEC and non-
SEC claims. Part B benefit estimates for beryllium exposure are based
on the actual number of such claims received by OWCP, anticipated
future claims, and the historical approval rate. Benefit estimates for
chronic silicosis are based on similar factors. Benefit estimates for
claims that require receipt of an award from DOJ under section 5 of
RECA are based on historical claim receipts and include the amounts
awarded by DOJ under RECA but paid from the compensation fund. Medical
benefits for living employees eligible under Part B are computed using
an average of $10,000 per year.
Part E benefit estimates for Part E cases are based on cases
received by OWCP to date, future expected receipts, and the average
Part B approval rate. The benefit amounts for Part E are calculated
based on an estimated distribution of approved claims with varying
degrees of compensable impairment and wage-loss, with an average
benefit amount of $135,000 and average medical costs of $10,000 per
year for each eligible living employee. Additional Part E benefits for
individuals who are determined to be eligible RECA section 5 uranium
workers are computed based upon the number of such claims received to
date and the expected number of such claims in the future.
Administrative cost estimates were developed based upon OWCP's
experience to date in administering Part B and the other workers'
compensation programs that fall within its area of administrative
responsibility, using calculations of the number of incoming claims and
forecasting the necessary full-time equivalents and other resources
that are necessary to efficiently administer the program.
No more extensive economic impact analysis of this rule is
necessary because this regulatory action only addresses the transfer of
funds from the federal government to individuals who qualify under
EEOICPA and to providers of medical services in that program. This
regulatory action has no affect on the functioning of the economy and
private markets, on the health and safety of the general population, or
on the natural environment. In addition, because this rule implements a
statutory mandate, there are no feasible alternatives to this
regulatory action. Finally, to the extent that policy choices have been
made in interpreting statutory terms, those choices have no significant
impact on the cost of this regulatory action. Such policy choices may
affect who will be entitled to receive benefits (such as covered Part E
employees with unratable impairments due to a covered illness), but
will not have a significant impact on the number of eligible Part B or
E beneficiaries or the level of benefits to which they are entitled.
OMB has reviewed the rule for consistency with the President's
priorities and the principles set forth in E.O. 12866.
VII. Small Business Regulatory Enforcement Fairness Act
As required by Congress under the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department
will report to Congress promulgation of this final rule prior to its
effective date. The report will state that the Department has concluded
that this final rule is a ``major rule'' because it will likely result
in an annual effect on the economy of $100 million or more.
VIII. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
et seq.) directs agencies to assess the effects of federal regulatory
actions on state, local, and tribal governments, and the private
sector, ``other than to the extent that such regulations incorporate
requirements specifically set forth in law.'' For purposes of the
Unfunded Mandates Reform Act, this final rule does not include any
federal mandate that may result in increased annual expenditures in
excess of $100 million by state, local or tribal governments in the
aggregate, or by the private sector.
[[Page 78532]]
IX. Regulatory Flexibility Act
The Department believes that this rule has ``no significant
economic impact upon a substantial number of small entities'' within
the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The provisions of this rule that apply cost-control measures to
payments for medical expenses are the only ones that could have a
monetary effect on small businesses, and have been in effect since OWCP
began administration of Part B of EEOICPA on July 31, 2001. The
economic effect of these cost-control measures are not significant for
a substantial number of those businesses who participate in the program
under Parts B and E of EEOICPA, however, because no one business bills
a significant amount to OWCP for EEOICPA-related services, and the
monetary effect on bills that are submitted, while a worthwhile savings
for the Government in the aggregate, are not significant for any
individual business affected.
The cost-control provisions are: (1) A set schedule of maximum
allowable fees for professional medical services; (2) a set schedule
for payment of pharmacy bills; and (3) a prospective payment system for
hospital inpatient services. The methodologies used for the first two
of these provisions were explained in the text of the preamble to two
earlier regulatory actions that implemented EEOICPA in 2001 (66 FR
28948) and 2002 (67 FR 78874), which essentially adopted payment
systems that are prevalent in the industry. Their adoption for use in
connection with OWCP's administration of Part E of the Act results in
continued efficiencies for the Government and providers. The Government
benefits because OWCP did not develop new cost containment measures for
Part E claims, but rather adopted existing and well-recognized measures
that were already in place. The providers benefit because submitting a
bill and receiving a payment is almost the same as submitting it to
Medicare, a program with which they are already familiar and have
existing systems in place for billing--they do not have to incur
unnecessary administrative costs to learn a new process because the
EEOICPA bill process for Part E claims is identical to the bill process
that applies to Part B claims, and is not readily distinguishable from
the Medicare billing process. Similarly, pharmacies are familiar with
billing through clearing houses and having their charges subject to
limits by private insurance carriers. By adopting private sector
uniform billing requirements and a familiar cost control methodology,
OWCP has not altered the billing environment with which pharmacies are
already familiar. The methods chosen, therefore, represent systems
familiar to the providers. The third of these three provisions does not
have an effect on a substantial number of ``small entities'' under
Small Business Administration (SBA) standards, since most hospitals
providing services for medical conditions covered by EEOICPA have
annual receipts that exceed the set maximum.
The implementation of these cost-control methods does not have a
significant effect on any single medical professional or pharmacy since
they are already used by Medicare, CHAMPUS, and the Departments of
Labor and Veterans Affairs, among Government entities, and by private
insurance carriers. In actual terms, the amount by which these provider
bills are reduced does not have a significant impact on any one small
entity since these charges are currently being processed by other
payers applying similar cost-control provisions. The costs to providers
whose charges are reduced also are relatively small because EEOICPA
bills simply do not represent a large share of any single provider's
total business. Since the small universe of potential claimants is
spread across the United States and this bill processing system covers
only those employees who have sustained an occupational illness or a
covered illness and require medical treatment on or after October 30,
2000, the number of bills submitted by any one small entity which may
be subject to these provisions is likely to be very small. Therefore,
the ``cost'' of this rule to any one pharmacy or medical professional
is negligible. On the other hand, OWCP reaps substantial aggregate cost
savings that benefit both OWCP (by strengthening the integrity of the
program) and the taxpayers to whom the costs of the program are
eventually charged.
The Assistant Secretary for Employment Standards has certified to
the Chief Counsel for Advocacy of the SBA that this rule does not have
a significant impact on a substantial number of small entities. The
factual basis for this certification has been provided above.
Accordingly, no regulatory impact analysis is required.
X. Executive Order 12988 (Civil Justice Reform)
This final rule has been drafted and reviewed in accordance with
E.O. 12988 and will not unduly burden the federal court system. While
Part B of EEOICPA does not provide any specific procedures that
claimants under that Part must follow in order to seek review of
decisions on their claims, Part E specifies that claimants under that
Part have 60 days to file petitions for review of decisions on their
claims in the United States district courts, and mandates the use of an
``arbitrary and capricious'' standard of review. It is reasonably
likely that some EEOICPA claimants will seek review of adverse
decisions in United States district courts pursuant to 28 U.S.C. 1331
(for claims under Part B of EEOICPA) or the EEOICPA itself (for claims
under Part E). This rule should help minimize the burden placed on
courts by litigation seeking to challenge decisions under EEOICPA by
providing claimants with an opportunity to seek administrative review
of adverse decisions prior to resorting to the court system, and by
providing a clear legal standard for affected conduct. The rule has
been reviewed carefully to eliminate drafting errors and ambiguities.
XI. Executive Order 13045 (Protection of Children From Environmental,
Health Risks and Safety Risks)
In accordance with E.O. 13045, the Department has evaluated the
environmental health and safety effects of this rule on children. The
Department has determined that the final rule will have no effect on
children.
XII. Executive Order 13132 (Federalism)
The Department has reviewed this final rule in accordance with E.O.
13132 and has determined that it does not have any ``federalism
implications.'' The final rule does not ``have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
XIII. Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)
In accordance with E.O. 13211, the Department has evaluated the
effects of this final rule on energy supply, distribution or use, and
has determined that this rule is not likely to have a significant
adverse effect on them.
XIV. Submission to Congress and the General Accountability Office
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the Department will submit to each House of the
Congress and to the Comptroller General
[[Page 78533]]
a report regarding the issuance of this final rule prior to the
effective date set forth at the outset of this notice. The report will
note that this rule constitutes a ``major rule'' as defined by 5 U.S.C.
804(2).
XV. Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance as No. 17.310.
List of Subjects
20 CFR Part 1
Organization and functions (Government agencies).
20 CFR Part 30
Administrative practice and procedure, Cancer, Claims, Kidney
diseases, Leukemia, Lung diseases, Miners, Radioactive materials, Tort
claims, Underground mining, Uranium, Workers' compensation.
Text of the Rule
0
For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended
as follows:
Subchapter A--Organization and Procedures
0
1. Part 1 is revised to read as follows:
PART 1--PERFORMANCE OF FUNCTIONS
Sec.
1.1 Under what authority was the Office of Workers' Compensation
Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the
past?
Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No.
6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat.
1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-
71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.
Sec. 1.1 Under what authority was the Office of Workers' Compensation
Programs established?
The Assistant Secretary of Labor for Employment Standards, by
authority vested in him by the Secretary of Labor in Secretary's Order
No. 13-71 (36 FR 8755), established in the Employment Standards
Administration an Office of Workers' Compensation Programs (OWCP) by
Employment Standards Order No. 2-74 (39 FR 34722). The Assistant
Secretary subsequently designated as the head thereof a Director who,
under the general supervision of the Assistant Secretary, administers
the programs assigned to OWCP by the Assistant Secretary.
Sec. 1.2 What functions are assigned to OWCP?
The Assistant Secretary of Labor for Employment Standards has
delegated authority and assigned responsibility to the Director of OWCP
for the Department of Labor's programs under the following statutes:
(a) The Federal Employees' Compensation Act, as amended and
extended (5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains
to the Employees' Compensation Appeals Board.
(b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
(c) The War Claims Act (50 U.S.C. App. 2003).
(d) The Energy Employees Occupational Illness Compensation Program
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities,
pursuant to Executive Order 13179 (``Providing Compensation to
America's Nuclear Weapons Workers'') of December 7, 2000, assigned to
the Secretary of Health and Human Services, the Secretary of Energy and
the Attorney General.
(e) The Longshore and Harbor Workers' Compensation Act, as amended
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with
respect to administrative law judges in the Office of Administrative
Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review
Board; and activities, pursuant to 33 U.S.C. 941, assigned to the
Assistant Secretary of Labor for Occupational Safety and Health.
(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et
seq.).
Sec. 1.3 What rules are contained in this chapter?
The rules in this chapter are those governing the OWCP functions
under the Federal Employees' Compensation Act, the War Hazards
Compensation Act, the War Claims Act and the Energy Employees
Occupational Illness Compensation Program Act of 2000.
Sec. 1.4 Where are other rules concerning OWCP functions found?
(a) The rules of the OWCP governing its functions under the
Longshore and Harbor Workers' Compensation Act and its extensions are
set forth in subchapter A of chapter VI of this title.
(b) The rules of the OWCP governing its functions under the Black
Lung Benefits Act program are set forth in subchapter B of chapter VI
of this title.
(c) The rules and regulations of the Employees' Compensation
Appeals Board are set forth in chapter IV of this title.
(d) The rules and regulations of the Benefits Review Board are set
forth in Chapter VII of this title.
Sec. 1.5 When was the former Bureau of Employees' Compensation
abolished?
By Secretary of Labor's Order issued September 23, 1974 (39 FR
34723), issued concurrently with Employment Standards Order 2-74 (39 FR
34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32
FR 12979), which had delegated authority and assigned responsibility
for the various workers' compensation programs enumerated in Sec. 1.2,
except the Black Lung Benefits Program and the Energy Employees
Occupational Illness Compensation Program not then in existence, to the
Director of the former Bureau of Employees' Compensation.
Sec. 1.6 How were many of OWCP's current functions administered in
the past?
(a) Administration of the Federal Employees' Compensation Act and
the Longshore and Harbor Workers' Compensation Act was initially vested
in an independent establishment known as the U.S. Employees'
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR,
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the
Commission was abolished and its functions were transferred to the
Federal Security Agency to be performed by a newly created Bureau of
Employees' Compensation within such Agency. By Reorganization Plan No.
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat.
1271), said Bureau was transferred to the Department of Labor (DOL),
and the authority formerly vested in the Administrator, Federal
Security Agency, was vested in the Secretary of Labor. By
Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp.,
page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to
make from time to time such provisions as he shall deem appropriate,
authorizing the performance of any of his functions by any other
officer, agency, or employee of the DOL.
(b) In 1972, two separate organizational units were established
within the Bureau: an Office of Workmen's Compensation Programs (37 FR
20533) and an Office of Federal Employees' Compensation (37 FR 22979).
In 1974, these two units were
[[Page 78534]]
abolished and one organizational unit, the Office of Workers'
Compensation Programs, was established in lieu of the Bureau of
Employees' Compensation (39 FR 34722).
0
2. Subchapter C consisting of part 30 is revised to read as follows:
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
30.300 What process will OWCP use to decide claims for entitlement
and to provide for administrative review of those decisions?
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 contain?
30.307 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?
[[Page 78535]]
30.317 Can the FAB request a further response from the claimant or
return a claim to the district office?
30.318 Can the FAB consider objections to HHS's reconstruction of a
radiation dose or to the guidelines OWCP uses to determine if a
claimed cancer was at least as likely as not related to employment?
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 the services of an attendant?
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 What kind of medical records must providers keep?
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?
[[Page 78536]]
30.706 How are the maximum fees defined?
30.707 How are payments for particular services 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 When and how are fees reduced?
30.712 If OWCP reduces a fee, may a provider request reconsideration
of the reduction?
30.713 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 reply 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 can a party request review by OWCP of the administrative
law judge's recommended decision?
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 evidence does OWCP use to determine a covered Part E
employee's average annual wage and whether he or she experienced
compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence in support of a
different determination of average annual wage and/or wage-loss than
that found by OWCP?
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. 4-
2001, 66 FR 29656.
Subpart A--General Provisions
Introduction
Sec. 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.
Sec. 30.1 What rules govern the administration of EEOICPA and this
chapter?
In accordance with EEOICPA, Executive Order 13179 and Secretary's
Order No. 4-2001, 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 Assistant Secretary of Labor for Employment
Standards. The Assistant Secretary, in turn, has delegated the
responsibility for administering the Act to the Director of the Office
of Workers' Compensation Programs (OWCP). Except as otherwise
[[Page 78537]]
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.
Sec. 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 Sec. Sec. 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
Sec. Sec. 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 Sec. 30.115). 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 Sec. 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
Sec. Sec. 30.105, 30.112, 30.206, 30.212 and 30.221).
Sec. 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
Sec. 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 the National
Institute for Occupational Safety and Health (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.
[[Page 78538]]
(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
of the facilities designated as such in the list periodically published
in the Federal Register by DOE.
(j) 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 medical doctor
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.
(k) Claim means a written assertion to OWCP of an individual's
entitlement to benefits under EEOICPA, submitted in a manner authorized
by this part.
(l) Claimant means the individual who is alleged to satisfy the
criteria for compensation under the Act.
(m) Compensation fund or fund means the fund established on the
books of the Treasury for payment of benefits and compensation under
the Act.
(n) Contemporaneous record means any document created at or around
the time of the event that is recorded in the document.
(o) 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 Sec. 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.
(p) 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.
(q) Covered Part B employee means, under Part B of the Act, a
covered beryllium employee (see Sec. 30.205), a covered employee with
cancer (see Sec. 30.210(a)), a covered employee with chronic silicosis
(see Sec. 30.220), or a covered uranium employee (see paragraph (s) of
this section).
(r) 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.
(s) 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.
(t) Current or former employee as defined in 5 U.S.C. 8101(1) as
used in Sec. 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.
(u) Department means the United States Department of Labor (DOL).
(v) Department of Energy or DOE includes the predecessor agencies
of the DOE, including the Manhattan Engineering District.
(w) 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; or
(ii) A contractor or subcontractor that provided services,
including construction and maintenance, at the facility.
(x)(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
[[Page 78539]]
(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.
(y) 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.
(z) 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.
(aa) Employee means either a current or former employee.
(bb) Occupational illness means, under Part B of the Act, a covered
beryllium illness, cancer sustained in the performance of duty as
defined in Sec. 30.210(a), specified cancer, chronic silicosis, or an
illness for which DOJ has awarded compensation under section 5 of RECA.
(cc) 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.
(dd) Physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state
law. The term ``physician'' includes chiropractors only to the extent
that their reimbursable services are limited to treatment consisting of
manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.
(ee) 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.
(ff) Specified cancer (as defined in section 4(b)(2) of RECA and in
EEOICPA) 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.
(gg) 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.
(hh) Time of injury means:
(1) 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; or
(2) 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
(3) 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.
(ii) Toxic substance means any material that has the potential to
cause illness or death because of its radioactive, chemical, or
biological nature.
(jj) Workday means a single workshift whether or not it occurred on
more than one calendar day.
Information in Program Records
Sec. 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.
Sec. 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.
[[Page 78540]]
Sec. 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
Sec. 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.
Sec. 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 Department's
regulations implementing PFCRA are found at 29 CFR part 22.
Sec. 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
Sec. 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. 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/esa/regs/compliance/owcp/eeoicp/main.htm. The employee's claim must be filed
with OWCP, but another person may do so 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 Sec. 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 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, or the person filing the claim on behalf of 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
Sec. 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 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.
Sec. 30.101 In general, how is a survivor's claim filed?
(a) A survivor of an employee who sustained an occupational illness
or a covered illness must file a claim for compensation in writing.
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/esa/regs/compliance/owcp/eeoicp/main.htm. The survivor's
claim must be filed with OWCP, but another person may do so 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
[[Page 78541]]
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 Sec. 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
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, or the person filing the claim on behalf of 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 Sec. 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 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.
Sec. 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 minimum 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.
Sec. 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 Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor,
Washington, DC 20210. They may also be obtained from OWCP district
offices and on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.
Verification of Alleged Employment
Sec. 30.105 What must DOE do after an employee or survivor files a
claim?
(a) After it receives a claim for benefits described in Sec. Sec.
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
[[Page 78542]]
pertinent records not already in its possession.
(b) Claims for additional impairment or wage-loss benefits under
Part E of the Act described in Sec. 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.
Sec. 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 Sec. 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
Sec. 30.105(a).
Evidence and Burden of Proof
Sec. 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 Sec.
30.205(a)) with a covered beryllium illness (as defined in Sec.
30.5(o)) who was exposed to beryllium in the performance of duty (in
accordance with Sec. 30.206).
(2) A ``covered Part B employee with cancer'' (as described in
Sec. 30.210(a)).
(3) A ``covered Part B employee with chronic silicosis'' (as
described in Sec. 30.220).
(4) A ``covered uranium employee'' (as defined in Sec. 30.5(s)).
(b) Under Part E of EEOICPA, compensation is payable to a ``covered
Part E employee'' (as defined in Sec. 30.5(p)), 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.
Sec. 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 Sec. 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.
Sec. 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 Sec. Sec. 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 is a self-serving
affidavit 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 may reject the claim based upon a lack
of evidence of covered employment.
Sec. 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.
[[Page 78543]]
(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, if the certified
statement is a self-serving document, OWCP may reject the claim based
upon a lack of evidence of a covered medical condition.
Sec. 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, additional medical evidence,
as set forth in Sec. 30.207, is required to establish a beryllium
illness.
(2) For chronic silicosis, additional medical evidence, as set
forth in Sec. 30.222, is required to establish chronic silicosis.
(3) For consequential injuries, illnesses, impairments or diseases,
the claimant must also submit a physician's fully rationalized medical
report showing a causal relationship between the resulting injury,
illness, impairment or disease and the compensable medical condition.
(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
Sec. 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 for a non-radiogenic cancer listed by HHS at
42 CFR 81.30, or 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 HHS 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) HHS will then reconstruct the radiation dose of the employee,
after such further development of the employment history as it may deem
necessary, and provide OWCP, DOE and the claimant 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 reconstructed dose from HHS, 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 HHS, 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
Sec. 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
Sec. 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 Sec. 30.5(t) of this part) 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
[[Page 78544]]
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 Sec. 30.5(x) of this
part); 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.
Sec. 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 at or physical presence at a DOE facility,
or a facility owned, operated, or occupied by a beryllium vendor,
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 a
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.
Sec. 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 paragraphs (b), (c), or (d) 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) 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
Sec. 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 Sec. 30.5(ff) of this part; and
(i) Is a member of the Special Exposure Cohort (as described in
Sec. 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
Sec. 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 Sec. 30.5(e)); or
(2) The employee has been diagnosed with cancer; and
[[Page 78545]]
(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 Sec. 30.230(a) of
these regulations.
Sec. 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 Sec. 30.5(ff)) or other cancer with
medical evidence that sets forth an explicit diagnosis of cancer and
the date on which that diagnosis was first made.
Sec. 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.
Sec. 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, as appropriate. Persons should consult HHS's regulations for
information regarding the factual evidence that will be considered by
OWCP, in addition to the employee's radiation dose reconstruction that
will be provided to OWCP by HHS, 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 Sec. 30.230(d) of this
part.
Sec. 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 Sec. 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
[[Page 78546]]
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.
Sec. 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 Sec.
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
Sec. 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 Sec. 30.5(x)) located in Nevada or Alaska for
tests or experiments related to an atomic weapon, and has been
diagnosed with chronic silicosis (as defined in Sec. 30.5(j)); or
(b) The employee has been diagnosed with an injury, illness,
impairment or disease that arose as a consequence of the accepted
chronic silicosis.
Sec. 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 Sec.
30.220(a), the claimant may aggregate the days of service at more than
one qualifying site.
Sec. 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 Sec. 30.5(j)) shall be made by a medical doctor 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
Sec. 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.
[[Page 78547]]
Eligibility Criteria for Certain Uranium Employees Under Part B of
EEOICPA
Sec. 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.
Sec. 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 Sec.
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
Sec. 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
Sec. 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 Department of Energy contractor employee as defined in
Sec. 30.5(w), 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 Department of Energy
contractor employee as defined in Sec. 30.5(w), 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.
Sec. 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
Sec. 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 employment.
(b) 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 in which the
employee was employed and that the employee came into contact with such
substance. OWCP site exposure matrices may be used to provide probative
factual evidence that a particular substance was present at either a
DOE facility or a RECA section 5 facility.
Sec. 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 Sec. 30.230(d), the employee, or his or
her survivor(s), must provide the following:
(1) The name and address of any licensed physician who is the
source of a diagnosis based upon documented medical information that
the employee has or had an illness and that the illness may have
resulted from exposure to a toxic substance while the employee was
employed at a DOE facility or a RECA section 5 facility, as
appropriate, and, to the extent practicable, a copy of the diagnosis
and a summary of the information upon which the diagnosis is based; and
(2) A signed medical release, authorizing the release of any
diagnosis,
[[Page 78548]]
medical opinion and medical records documenting the diagnosis or
opinion that the employee has or had an illness and that the illness
may have resulted from exposure to a toxic substance while the employee
was employed at a DOE facility or RECA section 5 facility, as
appropriate; and
(3) To the extent practicable and appropriate, an occupational
history obtained by a physician, an occupational health professional,
or a DOE-sponsored Former Worker Program (if such an occupational
history is not reasonably available or is inadequate, and such history
is deemed by OWCP to be needed for the fair adjudication of the claim,
then OWCP may assist the claimant in developing this history); and
(4) Any other information or materials deemed by OWCP to be
necessary to provide reasonable evidence that the employee has or had
an illness that may have arisen from exposure to a toxic substance
while employed at a DOE facility or RECA section 5 facility, as
appropriate.
(b) The employee, or his or her survivor(s), may also submit to
OWCP other evidence not described in paragraph (a) of this section
showing that the employee has or had an illness that resulted from an
exposure to a toxic substance during the course of employment at either
a DOE facility or a RECA section 5 facility, as appropriate.
(c) An injury, illness, impairment or disease sustained as a
consequence of a covered illness (as defined in Sec. 30.5(r)) 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
Sec. 30.300 What process will OWCP use to decide claims for
entitlement and to provide for administrative review of those
decisions?
OWCP district offices will issue recommended decisions with respect
to 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
benefits 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.
Sec. 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, electronic marker or other objective date mark) 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.
Sec. 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.
Sec. 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.
[[Page 78549]]
(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
Sec. 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
calculated by HHS (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.
Sec. 30.306 What does the recommended decision contain?
The recommended decision shall contain findings of fact and
conclusions of law. The recommended decision may accept or reject the
claim in its entirety, or it may accept or reject 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.
Sec. 30.307 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
Sec. 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 contained in
such decision, including HHS'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 on
the date that such written statement is actually received by the FAB,
whichever is the earliest determinable date.
Sec. 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 Sec. 30.310, the FAB may issue a final decision
accepting the recommendation of the district office as provided in
Sec. 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.
Sec. 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 Sec. 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 Sec. 30.316).
Sec. 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 HHS'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.
Sec. 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 or
teleconference. 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) Unless otherwise directed in writing by the claimant, the FAB
[[Page 78550]]
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. 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 Sec. 30.316). Any objection that is not
presented to the FAB reviewer, including any objection to HHS'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.
Sec. 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) of this section and cannot be
accommodated on the same docket, 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 Sec. 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.
Sec. 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 Sec. 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 Sec. Sec. 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
Sec. 30.310(a), or the date the Director reopened the claim for
issuance of a new final decision pursuant to Sec. 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 Sec. 30.311 that is
pending at the FAB for more than one year from the date that the period
of time described in Sec. 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 Sec. 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.
Sec. 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 newly recommended decision without issuing a final
decision, whether or not requested to do so by the claimant.
Sec. 30.318 Can the FAB consider objections to HHS's reconstruction
of a radiation dose or to the guidelines OWCP uses to determine if a
claimed cancer was at least as likely as not related to employment?
(a) If the claimant objects to HHS's reconstruction of the
radiation dose to which the employee was exposed, the FAB will evaluate
the factual findings upon which HHS based its dose reconstruction. If
these factual findings do not appear to be supported by substantial
evidence, the claim will be returned to the district office for
referral to HHS for further consideration.
(b) The methodology used by HHS in arriving at reasonable estimates
of the radiation doses received by an employee, established by
regulations issued by HHS at 42 CFR part 82, is binding on the FAB. The
FAB reviewer may determine, however, that objections concerning the
application of that methodology should be considered by HHS and may
return the case to the district office for referral to HHS for such
consideration.
(c) The methodology that OWCP uses to determine if a claimed cancer
was at least as likely as not related to employment at a DOE facility,
an atomic weapons employer facility, or a RECA section 5 facility,
established by
[[Page 78551]]
regulations issued by HHS at 42 CFR part 81, is also binding on the FAB
(see Sec. 30.213). However, since OWCP applies this methodology when
it makes these determinations, the FAB reviewer may consider objections
to the manner in which OWCP applied HHS's regulatory guidelines.
Sec. 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 Sec. 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 on
the date that such written request is actually received by the FAB,
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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 either covered employment or exposure to a toxic substance, or
identifies 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.
(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
Sec. 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. 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. The employee need not be disabled to receive
such treatment. When a survivor receives payment, OWCP will pay for
such treatment if the employee died before the claim was paid. 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.
(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 or qualified hospital may provide
medical services, appliances and supplies to the covered Part B
employee or the covered Part E employee. A qualified provider of
medical support services may also furnish appropriate services,
appliances, and supplies. 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. With respect to prescribed
medications, OWCP may require the use of generic equivalents where they
are available.
Sec. 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.
[[Page 78552]]
(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.
Sec. 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.
Sec. 30.403 Will OWCP pay for the services of an attendant?
OWCP will authorize payment for personal care services under
section 7384t of the Act, whether or not such care includes medical
services, so long as the personal care services have been determined to
be medically necessary and are provided by a home health aide, licensed
practical nurse, or similarly trained individual. If a claimant
disagrees with the decision of OWCP that personal care services are not
medically necessary, he or she may utilize the adjudicatory process
described in subpart D of this part.
Sec. 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.
Sec. 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 sufficient. 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) If a claimant disagrees with the decision of OWCP that
insufficient reasons for a change of physician have been submitted, he
or she may utilize the adjudicatory process described in subpart D of
this part.
Sec. 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
Sec. 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.
Sec. 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
Sec. 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
[[Page 78553]]
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.
Sec. 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
Sec. 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.
Sec. 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
signature or signature stamp. 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.
Sec. 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
Sec. 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
Sec. 30.702.
Sec. 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.
Sec. 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 Sec. 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
Sec. 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 or children includes a recognized natural child of a
deceased covered Part B employee or deceased covered Part E employee, a
stepchild who lived with that individual in a regular parent-child
relationship, and an adopted child of that individual. However, to be a
``covered'' child under Part E only, such child must have been, 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.
(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.
[[Page 78554]]
Sec. 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 Sec. 30.5(gg)(3) of these
regulations:
(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 Sec. 30.5(gg)(3) of these
regulations:
(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.
Sec. 30.502 When is entitlement for survivors determined for purposes
of EEOICPA?
Entitlement to any lump-sum payment for survivors under EEOICPA,
other than for ``covered'' children under Part E, will be determined as
of the time OWCP makes such a payment. As noted in Sec. 30.500(a)(2)
of these regulations, 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
Sec. 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 Sec.
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
[[Page 78555]]
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 Sec. 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.
Sec. 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 Sec. 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.
Sec. 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 Sec.
30.400 of these regulations.
Sec. 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.
[[Page 78556]]
Sec. 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 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
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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 Sec. 30.516); or
(b) Adjustment or recovery of the overpayment would be against
equity and good conscience (see Sec. 30.517).
Sec. 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.
Sec. 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.
[[Page 78557]]
Sec. 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.
Sec. 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.
Sec. 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 Sec. 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.
Sec. 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
Sec. 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 Sec. 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 EN-
20, described in Sec. 30.505(c) of these regulations, which collects
information necessary for issuance of a compensation payment.
Sec. 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). 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.
Sec. 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.
Sec. 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
[[Page 78558]]
payment made to the claimant set out in paragraph (b) of this section.
(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 Sec. 30.316(d), or with
respect to any subsequent appeal in such a proceeding.
Third Party Liability
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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 Sec. Sec. 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
[[Page 78559]]
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 Sec. Sec. 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.
Sec. 30.616 What happens if this type of tort suit was filed prior to
October 30, 2000?
(a) If a tort suit described in Sec. 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 Sec. 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.
Sec. 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 Sec. 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 HHS, or a diagnosis of a covered beryllium
illness, as applicable.
Sec. 30.618 What happens if this type of tort suit was filed after
December 28, 2001?
(a) If a tort suit described in Sec. 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 Sec. 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 HHS, or a diagnosis of a covered beryllium
illness, as applicable.
Sec. 30.619 Do all the parties to this type of tort suit have to take
these actions?
The type of tort suits described in Sec. 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 Sec. Sec. 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 Sec. Sec. 30.616
through 30.618.
Sec. 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
Sec. 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.
Sec. 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.
[[Page 78560]]
(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.
Sec. 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
Sec. 30.700 What kinds of medical records must providers keep?
Federal Government medical officers, private physicians and
hospitals are 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.
Sec. 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 Sec. 30.700. The physician or provider shall itemize the
charges on Form OWCP-1500 or CMS-1500 (for professional charges), 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 for processing.
(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. Where no code is applicable, a detailed description of
services performed should be provided.
(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 is necessary for more than 30 days.
(1)(i) Hospitals shall submit charges for medical and surgical
treatment or supplies promptly on Form OWCP-04 or UB-04. The provider
shall identify each outpatient radiology service, outpatient pathology
service and physical therapy service performed, using HCPCS/CPT codes
with a brief narrative description. The charge for each individual
service, or the total charge for all identical services, should also
appear on the form.
(ii) Other outpatient hospital services for which HCPCS/CPT codes
exist shall also be coded individually using the coding scheme noted in
this section. Services for which there are no HCPCS/CPT codes available
can be presented using the RCCs described in the ``National Uniform
Billing Data Elements Specifications,'' current edition. The provider
shall also furnish the diagnostic code using the ICD-9-CM. If the
outpatient hospital services include surgical and/or invasive
procedures, the provider shall code each procedure using the proper
HCPCS/CPT codes and furnishing the corresponding diagnostic codes using
the ICD-9-CM.
(2) Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on electronic or paper-based bills and submit
them promptly for processing. 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
for processing.
(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. 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
[[Page 78561]]
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 signature or signature
stamp of the provider; and identify the procedures using HCPCS/CPT
codes, RCCs, or NDC numbers. Otherwise, the bill may be returned to the
provider for correction and resubmission. 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.
Sec. 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 and a
medical report as provided in Sec. 30.700, for consideration.
(1) The provider of such service shall state each diagnosed
condition and furnish the applicable ICD-9-CM code 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.
(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)
or a copy of the employee's credit card receipt.
(b) If a hospital, 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 Sec. 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) The requirements of paragraphs (a) and (b) of this section may
be waived 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 will not be
accepted unless they bear the original signature of the provider and
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
Sec. 30.705. The decision of OWCP whether to reimburse an employee for
out-of-pocket medical expenses, and the amount of any reimbursement, is
final when issued and is not subject to 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, 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 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 Sec.
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 Sec. 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 allowed
charge, 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.
Sec. 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
Sec. 30.705 What services are covered by the OWCP fee schedule?
(a) Payment for medical and other health services 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.
(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.
Sec. 30.706 How are the maximum fees 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 value 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 index based on a
relative value scale that considers skill, labor, overhead, malpractice
insurance and other related costs; and a monetary value assignment
(conversion factor) for one unit of value in each of the categories of
service.
Sec. 30.707 How are payments for particular services calculated?
Payment for a procedure identified by a HCPCS/CPT code shall not
exceed the amount derived by multiplying the relative values for that
procedure by the geographic indices for services in that area and by
the dollar amount assigned to one unit in that category of service.
(a) The ``locality'' which serves as a basis for the determination
of average cost is defined by the Bureau of Census Metropolitan
Statistical Areas. OWCP
[[Page 78562]]
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 the Centers for Medicare and Medicaid Services
(CMS).
(b) OWCP shall assign the relative value units (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 considered appropriate. The geographic
adjustment factor shall be that designated by Geographic Practice Cost
Indices 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, and in doing so may
adapt CMS conversion factors as appropriate using OWCP's processing
experience and internal data.
(c) For example, if the unit values 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 dollar value
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 geographical
indices for the locality times the conversion factor. If the geographic
indices 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 + .56] x $61.20
6.45 x $61.20 = $394.74
Sec. 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.
Sec. 30.709 How are payments for medicinal drugs determined?
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.
(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.
(b) The NDC numbers, the average wholesale prices, and the
dispensing fee shall be reviewed from time to time and updated as
necessary.
Sec. 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 Prospective Payment
System (PPS) devised by CMS (42 CFR parts 412, 413, 424, 485, and 489).
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 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 PPS 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 PPS. 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 PPS
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.
Sec. 30.711 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. Where no code is supplied, OWCP may
determine the code based on the narrative description of the procedure
on the billing form and in associated medical reports. OWCP will pay no
more than the maximum allowable fee for that procedure.
(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.
Sec. 30.712 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) Any such request will be considered by 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 on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.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
[[Page 78563]]
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.
Sec. 30.713 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 Sec. 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 Sec. 30.715(h).
Exclusion of Providers
Sec. 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 Sec. 30.700 of this part;
(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; or
(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.
Sec. 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 Sec. 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.
Sec. 30.717 When are OWCP's exclusion procedures initiated?
Upon receipt of information indicating that a physician, hospital
or provider of medical services or supplies (hereinafter the provider)
has engaged in activities enumerated in paragraphs (c) through (h) of
Sec. 30.715, the Regional Director, after completion of inquiries he
or she deems appropriate, may initiate procedures to exclude the
provider from participation in the EEOICPA program. For the purposes of
these procedures, ``Regional Director'' may include any officer
designated to act on his or her behalf.
Sec. 30.718 How is a provider notified of OWCP's intent to exclude
him or her?
The Regional Director shall initiate the exclusion process by
sending the provider a letter, by certified mail and with return
receipt requested, 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 the Regional Director 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 that the decision on exclusion be 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 Regional Director, to request a formal hearing before an
administrative law judge;
(e) A notice that should the provider fail to answer (as described
in Sec. 30.719) the letter of intent within 30 calendar days of
receipt, the Regional Director may deem the allegations made therein to
be true and may order exclusion of the provider without conducting any
further proceedings; and
(f) The name and address of the OWCP representative who shall be
responsible for receiving the answer from the provider.
[[Page 78564]]
Sec. 30.719 What requirements must the provider's reply and OWCP's
decision meet?
(a) The provider's answer 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 answer the letter of intent within
30 calendar days of receipt, the Regional Director may deem the
allegations made therein to be true and may order exclusion of the
provider.
(c) By arrangement with the OWCP representative, the provider may
inspect or request copies of information in the record at any time
prior to the Regional Director's decision.
(d) The Regional Director 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. 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 Sec. 30.720. The filing of a
request for a hearing within the time specified shall stay the
effectiveness of the decision to exclude.
Sec. 30.720 How can an excluded provider request a hearing?
A request for a hearing shall be sent to the OWCP representative
named pursuant to Sec. 30.718(f) 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 a more definite statement by OWCP;
(c) Any request for the presentation of oral argument or evidence;
and
(d) 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.
Sec. 30.721 How are hearings assigned and scheduled?
(a) If the designated OWCP representative receives a timely request
for hearing, the OWCP representative 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 Hearing
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 Hearing 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 more definite statements and 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 purpose of the designation of issues is to provide for an
effective hearing process. 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.
Sec. 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.
Sec. 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. 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.
Sec. 30.724 How can a party request review by OWCP of the
administrative law judge's recommended decision?
(a) Any party adversely affected or aggrieved by the decision of
the administrative law judge may file a petition for discretionary
review with the Director for Energy Employees Occupational Illness
Compensation within 30 days after issuance of such decision. The
administrative law judge's decision, however, shall be effective on the
date issued and shall not be stayed except upon order of the Director.
(b) Review by the Director for Energy Employees Occupational
Illness Compensation shall not be a matter of right but of the sound
discretion of the Director.
(c) Petitions for discretionary review shall be filed only 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 OWCP;
(4) A substantial question of law, policy, or discretion is
involved; or
[[Page 78565]]
(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 any party shall rely on any
question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass.
(e) A statement in opposition to the petition for discretionary
review may be filed, but such filing shall in no way delay action on
the petition.
(f) If a petition is granted, review shall be limited to the
questions raised by the petition.
(g) A petition not granted within 20 days after receipt of the
petition is deemed denied.
Sec. 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; and
(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.
(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.
Sec. 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 Sec. 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 argument. Oral argument 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
Sec. 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 Sec. 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 Sec. 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 Sec. 30.5(r).
Sec. 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 four times the average quarterly
wages of a covered Part E employee for the 12 quarters preceding the
quarter 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, excluding any quarters during which the employee was
unemployed. Because being ``retired'' is not equivalent to being
``unemployed,'' quarters 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) Quarter means the three-month period January through March,
April through June, July through September, or October through
December.
(d) Quarter during which the employee was unemployed means any
quarter during which the covered Part E employee had $700 (in constant
2005 dollars) or less in wages unless the quarter is one during which
the employee was retired.
(e) 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
Sec. 30.805 What evidence does OWCP use to determine a covered Part E
employee's average annual wage and whether he or she experienced
compensable wage-loss under Part E of EEOICPA?
(a) OWCP may rely on quarterly wages information reported to the
Social
[[Page 78566]]
Security Administration to establish a covered Part E employee's
presumed average annual wage (see Sec. 30.810) and the duration and
extent of any years of wage-loss that are compensable under Part E of
the Act (see Sec. 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 necessary 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 in a quarter from employment or
services, except for monetary payments that were not taxable as income
during that quarter under the Internal Revenue Code, to be ``wages.''
(b) OWCP also requires the submission of rationalized medical
evidence of sufficient probative value to establish that the period of
wage-loss at issue is causally related to the covered Part E employee's
covered illness.
Sec. 30.806 May a claimant submit factual evidence in support of a
different determination of average annual wage and/or wage-loss than
that found by OWCP?
A claimant who disagrees with the evidence OWCP has obtained under
Sec. 30.805(a) 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 by a preponderance of the evidence. 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
Sec. 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 Sec. 30.801(a), OWCP will:
(a) Aggregate the wages for the twelve quarters that preceded the
quarter during which the covered Part E employee first experienced
wage-loss due to exposure to a toxic substance at a DOE facility or a
RECA section 5 facility, excluding any quarter during which the
employee was unemployed;
(b) Add any additional wages earned by the employee during those
same quarters as evidenced by records described in Sec. Sec. 30.805(a)
and 30.806;
(c) Divide the sum of paragraphs (a) and (b) of this section by 12
less the number of quarters during which the employee was unemployed;
and
(d) Multiply this figure by four to calculate the covered Part E
employee's average annual wage.
Sec. 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 Sec. Sec. 30.805 and 30.806 to
determine the quarter in which a covered Part E employee first
sustained wage-loss due to exposure to a toxic substance while engaged
in employment at a DOE facility or a RECA section 5 facility, as
appropriate.
(b) OWCP will then compare the calendar-year wages for that
employee, as adjusted, with the average annual wage determined under
Sec. 30.810 for each calendar year beginning with the calendar year
that includes the quarter in which the wage-loss commenced, 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 Sec. 30.801(b)),
whichever occurred first.
(c) 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 Sec.
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.
(d) 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.
Sec. 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 Sec. 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 Sec. 30.801(b).
Special Rules for Certain Survivor Claims Under Part E of EEOICPA
Sec. 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 Sec. 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 Sec. Sec. 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
Sec. 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
[[Page 78567]]
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 Sec. Sec. 30.210 through 30.215 or Sec. Sec.
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.
Sec. 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 a ``minimum impairment rating.''
(b) The minimum impairment rating shall be determined in accordance
with the current edition of the American Medical Association's Guides
to the Evaluation of Permanent Impairment (AMA's Guides). 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 in use of the AMA's Guides, 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.
Sec. 30.902 How will OWCP calculate the amount of the award of
impairment benefits that is payable under Part E?
OWCP will multiply the percentage points of the minimum impairment
rating by $2,500 to calculate the amount of the award.
Medical Evidence of Impairment
Sec. 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.
Sec. 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 Sec. 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 Sec. Sec. 30.404 and 30.412 of this part.
(b) Except for one impairment evaluation obtained pursuant to Sec.
30.905(b) and meeting the criteria set out in Sec. 30.905(b)(1), (2)
and (3), the employee must pay for any impairment evaluations not
directed by OWCP.
Sec. 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 Sec. Sec. 30.905 or 30.906, if it does not meet the criteria
listed in Sec. 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
Sec. Sec. 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 Sec. Sec. 30.410 and 30.411
of this part.
Sec. 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 Sec. 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 minimum 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
minimum impairment rating after it has evaluated all relevant evidence
and argument in the record.
Ratable Impairments
Sec. 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.
[[Page 78568]]
(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.
Sec. 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
Sec. 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.
Sec. 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.
Signed at Washington, DC, this 15th day of December, 2006.
Victoria A. Lipnic,
Assistant Secretary of Labor for Employment Standards.
Signed at Washington, DC, this 15th day of December, 2006.
Shelby Hallmark,
Director, Office of Workers' Compensation Programs, Employment
Standards Administration.
[FR Doc. E6-21839 Filed 12-28-06; 8:45 am]
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