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PART 702—ADMINISTRATION AND PROCEDURE

Section Contents

Subpart
A—General Provisions

Administration
§ 702.101   [Reserved]
§ 702.102   Establishment
and modification of compensation districts, establishment of suboffices
and jurisdictional areas.
§ 702.103   Effect
of establishment of suboffices and jurisdictional
areas.
§ 702.104   Transfer
of individual case file.
§ 702.105   Use
of the title District Director in place of Deputy
Commissioner.

Records
§ 702.111   Employer's
records.
§ 702.112   Records
of the OWCP.
§ 702.113   Inspection
of records of the OWCP.
§ 702.114   Copying
of records of OWCP.

Forms
§ 702.121   Forms.

Representation
§ 702.131   Representation
of parties in interest.
§ 702.132   Fees
for services.
§ 702.133   Unapproved
fees; solicitation of claimants; penalties.
§ 702.134   Payment
of claimant's attorney's fees in disputed claims.
§ 702.135   Payment
of claimant's witness fees and mileage in disputed
claims.

Information
and Assistance for Claimants
§ 702.136   Requests
for information and assistance.

Commutation
of Payments and Special Fund
§ 702.142   Commutation
of payments; aliens not residents or about to become
nonresidents.
§ 702.143   Establishment
of special fund.
§ 702.144   Purpose
of the special fund.
§ 702.145   Use
of the special fund.
§ 702.146   Source
of the special fund.
§ 702.147   Enforcement
of special fund provisions.
§ 702.148   Insurance
carriers' and self-insured employers'
responsibilities.

Liens
on Compensation
§ 702.161   Liens
against assets of insurance carriers and employers.
§ 702.162   Liens
on compensation authorized under special
circumstances.

Certification
of Exemption
§ 702.171   Certification
of exemption, general.
§ 702.172   Certification;
definitions.
§ 702.173   Exemptions;
requirements, limitations.
§ 702.174   Exemptions;
necessary information.
§ 702.175   Effect
of work on excluded vessels; reinstatement of
certification.

Subpart
B—Claims Procedures

Employer's
Reports
§ 702.201   Reports
from employers of employee's injury or death.
§ 702.202   Employer's
report; form and contents.
§ 702.203   Employer's
report; how given.
§ 702.204   Employer's
report; penalty for failure to furnish and or
falsifying.
§ 702.205   Employer's
report; effect of failure to report upon time
limitations.

Notice
§ 702.211   Notice
of employee's injury or death; designation of responsible
official.
§ 702.212   Notice;
when given; when given for certain occupational
diseases.
§ 702.213   Notice;
by whom given.
§ 702.214   Notice;
form and content.
§ 702.215   Notice;
how given.
§ 702.216   Effect
of failure to give notice.
§ 702.217   Penalty
for false statement, misrepresentation.

Claims
§ 702.221   Claims
for compensation; time limitations.
§ 702.222   Claims;
exceptions to time limitations.
§ 702.223   Claims;
time limitations; time to object.
§ 702.224   Claims;
notification of employer of filing by employee.
§ 702.225   Withdrawal
of a claim.

Noncontroverted
Claims
§ 702.231   Noncontroverted
claims; payment of compensation without an award.
§ 702.232   Payments
without an award; when; how paid.
§ 702.233   Penalty
for failure to pay without an award.
§ 702.234   Report
by employer of commencement and suspension of
payments.
§ 702.235   Report
by employer of final payment of compensation.
§ 702.236   Penalty
for failure to report termination of payments.

Agreed
Settlements
§ 702.241   Definitions
and supplementary information.
§ 702.242   Information
necessary for a complete settlement application.
§ 702.243   Settlement
application; how submitted, how approved, how disapproved,
criteria.

Controverted
Claims
§ 702.251   Employer's
controversion of the right to compensation.
§ 702.252   Action
by district director upon receipt of notice of
controversion.

Contested
Claims
§ 702.261   Claimant's
contest of actions taken by employer or carrier with respect to the
claim.
§ 702.262   Action
by district director upon receipt of notice of
contest.

Discrimination
§ 702.271   Discrimination;
against employees who bring proceedings, prohibition and
penalty.
§ 702.272   Informal
recommendation by district director.
§ 702.273   Adjudication
by Office of the Chief Administrative Law Judge.
§ 702.274   Employer's
refusal to pay penalty.

Third
Party
§ 702.281   Third
party action.

Report
of Earnings
§ 702.285   Report
of earnings.
§ 702.286   Report
of earnings; forfeiture of compensation.

Subpart
C—Adjudication Procedures

General
§ 702.301   Scope
of this subpart.

Action
by District Directors
§ 702.311   Handling
of claims matters by district directors; informal
conferences.
§ 702.312   Informal
conferences; called by and held before whom.
§ 702.313   Informal
conferences; how called; when called.
§ 702.314   Informal
conferences; how conducted; where held.
§ 702.315   Conclusion
of conference; agreement on all matters with respect to the
claim.
§ 702.316   Conclusion
of conference; no agreement on all matters with respect to the
claim.
§ 702.317   Preparation
and transfer of the case for hearing.
§ 702.318   The
record; what constitutes; nontransferability of the administrative
file.
§ 702.319   Obtaining
documents from the administrative file for reintroduction at formal
hearings.

Special
Fund
§ 702.321   Procedures
for determining applicability of section 8(f) of the
Act.

Formal
Hearings
§ 702.331   Formal
hearings; procedure initiating.
§ 702.332   Formal
hearings; how conducted.
§ 702.333   Formal
hearings; parties.
§ 702.334   Formal
hearings; representatives of parties.
§ 702.335   Formal
hearings; notice.
§ 702.336   Formal
hearings; new issues.
§ 702.337   Formal
hearings; change of time or place for hearings;
postponements.
§ 702.338   Formal
hearings; general procedures.
§ 702.339   Formal
hearings; evidence.
§ 702.340   Formal
hearings; witnesses.
§ 702.341   Formal
hearings; depositions; interrogatories.
§ 702.342   Formal
hearings; witness fees.
§ 702.343   Formal
hearings; oral argument and written allegations.
§ 702.344   Formal
hearings; record of hearing.
§ 702.345   Formal
hearings; consolidated issues; consolidated cases.
§ 702.346   Formal
hearings; waiver of right to appear.
§ 702.347   Formal
hearings; termination.
§ 702.348   Formal
hearings; preparation of final decision and order;
content.
§ 702.349   Formal
hearings; filing and mailing of compensation orders; disposition of
transcripts.
§ 702.350   Finality
of compensation orders.
§ 702.351   Withdrawal
of controversion of issues set for formal hearing;
effect.

Interlocutory
Matters, Supplementary Orders, and
Modifications
§ 702.371   Interlocutory
matters.
§ 702.372   Supplementary
compensation orders.
§ 702.373   Modification
of awards.

Appeals
§ 702.391   Appeals;
where.
§ 702.392   Appeals;
what may be appealed.
§ 702.393   Appeals;
time limitations.
§ 702.394   Appeals;
procedure.

Subpart
D—Medical Care and Supervision
§ 702.401   Medical
care defined.
§ 702.402   Employer's
duty to furnish; duration.
§ 702.403   Employee's
right to choose physician; limitations.
§ 702.404   Physician
defined.
§ 702.405   Selection
of physician; emergencies.
§ 702.406   Change
of physicians; non-emergencies.
§ 702.407   Supervision
of medical care.
§ 702.408   Evaluation
of medical questions; impartial specialists.
§ 702.409   Evaluation
of medical questions; results disputed.
§ 702.410   Duties
of employees with respect to special examinations.
§ 702.411   Special
examinations; nature of impartiality of specialists.
§ 702.412   Special
examinations; costs chargeable to employer or carrier.
§ 702.413   Fees
for medical services; prevailing community charges.
§ 702.414   Fees
for medical services; unresolved disputes on prevailing
charges.
§ 702.415   Fees
for medical services; unresolved disputes on charges;
procedure.
§ 702.416   Fees
for medical services; disputes; hearings; necessary
parties.
§ 702.417   Fees
for medical services; disputes; effect of adverse
decision.

Medical
Procedures
§ 702.418   Procedure
for requesting medical care; employee's duty to notify
employer.
§ 702.419   Action
by employer upon acquiring knowledge or being given notice of
injury.
§ 702.420   Issuance
of authorization; binding effect upon insurance
carrier.
§ 702.421   Effect
of failure to obtain initial authorization.
§ 702.422   Effect
of failure to report on medical care after initial
authorization.

Debarment
of Physicians and Other Providers of Medical Services and Suppliers and
Claims Representatives
§ 702.431   Grounds
for debarment.
§ 702.432   Debarment
process.
§ 702.433   Requests
for hearing.
§ 702.434   Judicial
review.
§ 702.435   Effects
of debarment.
§ 702.436   Reinstatement.

Hearing
Loss Claims
§ 702.441   Claims
for loss of hearing.

Subpart
E—Vocational Rehabilitation
§ 702.501   Vocational
rehabilitation; objective.
§ 702.502   Vocational
rehabilitation; action by district directors.
§ 702.503   Vocational
rehabilitation; action by adviser.
§ 702.504   Vocational
rehabilitation; referrals to State Employment
Agencies.
§ 702.505   Vocational
rehabilitation; referrals to other public and private
agencies.
§ 702.506   Vocational
rehabilitation; training.
§ 702.507   Vocational
rehabilitation; maintenance allowance.
§ 702.508   Vocational
rehabilitation; confidentiality of information.

Subpart
F—Occupational Disease Which Does Not Immediately Result in Death or
Disability
§ 702.601   Definitions.
§ 702.602   Notice
and claims.
§ 702.603   Determining
the payrate for compensating occupational disease claims which become
manifest after retirement.
§ 702.604   Determining
the amount of compensation for occupational disease claims which become
manifest after retirement.

Authority:   5 U.S.C. 301, 8171 et
seq., Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR 1949–1953,
Comp., p. 1004, 64 Stat. 1263; 28 U.S.C. 2461, 33 U.S.C. 930, 36 D.C. Code
501 et seq., 42 U.S.C. 1651 et seq., 43 U.S.C. 1331;
Secretary's Order 5–96, 62 FR 107.

Source:   38 FR 26861, Sept. 26, 1973,
unless otherwise noted.

Subpart A—General Provisions

top

Administration

top

§ 702.101   [Reserved]

top

§ 702.102   Establishment and modification of
compensation districts, establishment of suboffices and jurisdictional
areas.

top

(a) The Director has, pursuant to section 39(b) of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 939(b), established
compensation districts as required for improved administration or as
otherwise determined by the Director (see 51 FR 4282, Feb. 3, 1986). The
boundaries of the compensation districts may be modified at any time, and
the Director shall notify all interested parties directly by mail of the
modifications.

(b) As administrative exigencies from time to time may require, the
Director may, by administrative order, establish special areas outside the
continental United States, Alaska, and Hawaii, or change or modify any
areas so established, notwithstanding their inclusion within an
established compensation district. Such areas shall be designated
“jurisdictional areas.” The Director shall also designate which of his
district directors shall be in charge thereof.

(c) To further aid in the efficient administration of the OWCP, the
Director may from time to time establish suboffices within compensation
districts or jurisdictional areas, and shall designate a person to be in
charge thereof.

[38 FR 26861, Sept. 26, 1973, as amended at 60 FR 51348, Oct. 2,
1995]

§ 702.103   Effect of establishment of suboffices
and jurisdictional areas.

top

Whenever the Director establishes a suboffice or jurisdictional area,
those reports, records, or other documents with respect to processing of
claims that are required to be filed with the district director of the
compensation district in which the injury or death occurred, may instead
be required to be filed at the suboffice, or office established for the
jurisdictional area.

§ 702.104   Transfer of individual case
file.

top

(a) At any time after a claim is filed, the district director having
jurisdiction thereof may, with the prior or subsequent approval of the
Director, transfer such case to the district director in another
compensation district for the purpose of making an investigation, ordering
medical examinations, or taking such other action as may be necessary or
appropriate to further develop the claim. If, after filing a claim, the
claimant moves to another compensation district, the district director
may, upon request by the claimant or the employer and with the approval of
the Director, transfer the case to such other compensation district.

(b) The district director making the transfer may by letter or
memorandum to the district director to whom the case is transferred give
advice, comments, suggestions, or directions if appropriate to the
particular case. The transfer of cases shall be by registered or certified
mail. All interested parties shall be advised of the transfer.

[42 FR 45301, Sept. 9, 1977]

§ 702.105   Use of the title District Director in
place of Deputy Commissioner.

top

Wherever the statute refers to Deputy Commissioner, these regulations
have substituted the term District Director. The substitution is purely an
administrative one, and in no way effects the authority of or the powers
granted and responsibilities imposed by the statute on that position.

[55 FR 28606, July 12, 1990]

Records

top

§ 702.111   Employer's records.

top

Every employer shall maintain adequate records of injury sustained by
employees while in his employ, and which shall also contain information of
disease, other impairments or disabilities, or death relating to said
injury. Such records shall be available for inspection by the OWCP or by
any State authority. Records required by this section shall be retained by
the employer for three years following the date of injury; this applies to
records for lost-time and no-lost-time injuries.
(Approved by the
Office of Management and Budget under control number 1215–0160)

(Pub. L. No. 96–511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.
))

[38 FR 26861, Sept. 26, 1973, as amended at 47 FR 145, Jan. 5, 1982; 50
FR 393, Jan. 3, 1985]

§ 702.112   Records of the OWCP.

top

All reports, records, or other documents filed with the OWCP with
respect to claims are the records of the OWCP. The Director shall be the
official custodian of those records maintained by the OWCP at its national
office, and the district director shall be the official custodian of those
records maintained at the headquarters office in each compensation
district.

§ 702.113   Inspection of records of the
OWCP.

top

Any party in interest may be permitted to examine the record of the
case in which he is interested. The official custodian of the record
sought to be inspected shall permit or deny inspection in accordance with
the Department of Labor's regulations pertaining thereto (see 29 CFR part
70). The original record in any such case shall not be removed from the
office of the custodian for such inspection. The custodian may, in his
discretion, deny inspection of any record or part thereof which is of a
character specified in 5 U.S.C. 552(b) if in his opinion such inspection
may result in damage, harm, or harassment to the beneficiary or to any
other person. For special provisions concerning release of information
regarding injured employees undergoing vocational rehabilitation, see
§702.508.

§ 702.114   Copying of records of OWCP.

top

Any party in interest may request copies of records he has been
permitted to inspect. Such requests shall be addressed to the official
custodian of the records sought to be copied. The official custodian shall
provide the requested copies under the terms and conditions specified in
the Department of Labor's regulations relating thereto (see 29 CFR part
70).

Forms

top

§ 702.121   Forms.

top

The Director may from time to time prescribe, and require the use of,
forms for the reporting of any information required to be reported by the
regulations in this subchapter, or by the Act or any of its
extensions.

Representation

top

§ 702.131   Representation of parties in
interest.

top

(a) Claimants, employers and insurance carriers may be represented in
any proceeding under the Act by an attorney or other person previously
authorized in writing by such claimant, employer or carrier to so act.

(b) The Secretary shall annually publish a list of individuals who are
disqualified from representing claimants under the Act. Individuals on
this list are not authorized to represent claimants under the Act subject
to the provision of section 31(b)(2)(C) of the Act, 33 U.S.C.
931(b)(2)(C), and they shall not have their representation fee approved as
provided in section 28(e), 33 U.S.C. 928(e).

(c) Individuals shall be included on the list mentioned in (b) if the
Secretary determines, after proceedings under §§702.432(b) through
702.434, that such individual:

(1) Has been convicted (without regard to pending appeal) of any crime
in connection with the representation of a claimant under this Act or any
workers' compensation statute;

(2) Has engaged in fraud in connection with the presentation of a claim
under this or any workers' compensation statute, including, but not
limited to, knowingly making false representations, concealing or
attempting to conceal material facts with respect to a claim, or
soliciting or otherwise procuring false testimony;

(3) Has been prohibited from representing claimants before any other
workers' compensation agency for reasons of professional misconduct which
are similar in nature to those which would be grounds for disqualification
under this section; or

(4) Has accepted fees for representing claimants under the Act which
were not approved, or which were in excess of the amount approved pursuant
to section 28 of the Act, 33 U.S.C. 928.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 394, Jan. 3,
1985]

§ 702.132   Fees for services.

top

(a) Any person seeking a fee for services performed on behalf of a
claimant with respect to claims filed under the Act shall make application
therefor to the district director, administrative law judge, Board, or
court, as the case may be, before whom the services were performed (See 33
U.S.C. 928(c)). The application shall be filed and serviced upon the other
parties within the time limits specified by such district director,
administrative law judge, Board, or court. The application shall be
supported by a complete statement of the extent and character of the
necessary work done, described with particularity as to the professional
status (e.g., attorney, paralegal, law clerk, or other person assisting an
attorney) of each person performing such work, the normal billing rate for
each such person, and the hours devoted by each such person to each
category of work. Any fee approved shall be reasonably commensurate with
the necessary work done and shall take into account the quality of the
representation, the complexity of the legal issues involved, and the
amount of benefits awarded, and when the fee is to be assessed against the
claimant, shall also take into account the financial circumstances of the
claimant. No contract pertaining to the amount of a fee shall be
recognized.

(b) No fee shall be approved for a representative whose name appears on
the Secretary's list of disqualified representatives under
§702.131(b).

(c) Where fees are included in a settlement agreement submitted under
§702.241, et seq. approval of that agreement shall be deemed
approval of attorney fees for purposes of this subsection for work
performed before the Administrative Law Judge or district director
approving the settlement.

[50 FR 394, Jan. 3, 1985]

§ 702.133   Unapproved fees; solicitation of
claimants; penalties.

top

Under the provisions of section 28(e) of the Act, 33 U.S.C. 928(e), any
person who receives any fees, other consideration, or any gratuity on
account of services rendered as a representative of a claimant, unless
such consideration or gratuity is approved under §702.132, or who makes it
a business to solicit employment for an attorney, or for himself in
respect of any claim under the Act, shall upon conviction thereof, for
each offense be punished by a fine of not more than $1,000 or by
imprisonment for not more than 1 year, or by both fine and
imprisonment.

§ 702.134   Payment of claimant's attorney's fees
in disputed claims.

top

(a) If the employer or carrier declines to pay any compensation on or
before the 30th day after receiving written notice from the district
director of a claim for compensation having been filed, on the ground that
there is no liability for compensation within the provisions of this Act,
and the person seeking benefits shall thereafter have utilized the
services of an attorney at law in the successful prosecution of his claim,
there shall be awarded, in addition to the award of compensation, in a
compensation order, a reasonable attorney's fee against the employer or
carrier in an amount approved by the person, administrative body or court
before whom the service was performed, which shall be paid directly by the
employer or carrier to the attorney for the claimant in a lump sum after
the compensation order becomes final (Act, section 28(a)).

(b) If the employer or carrier pays or tenders payment of compensation
without an award pursuant to §702.231 and section 14 (a) and (b) of this
Act, and thereafter a controversy develops over the amount of additional
compensation, if any, to which the employee may be entitled, the district
director, administrative law judge, or Board shall set the matter for an
informal conference and following such conference the district director,
administrative law judge, or Board shall recommend in writing a
disposition of the controversy. If the employer or carrier refuses to
accept such written recommendation, within 14 days after its receipt by
them, they shall pay or tender to the employee in writing the additional
compensation, if any, to which they believe the employee is entitled. If
the employee refuses to accept such payment or tender of compensation, and
thereafter utilizes the services of an attorney at law, and if the
compensation thereafter awarded is greater than the amount paid or
tendered by the employer or carrier, a reasonable attorney's fee based
solely upon the difference between the amount awarded and the amount
tendered or paid shall be awarded in addition to the amount of
compensation. The foregoing sentence shall not apply if the controversy
relates to degree or length of disability, and if the employer or carrier
offers to submit the case for evaluation by physicians employed or
selected by the district director, as authorized by section 7(e) of the
Act and §702.408, and offers to tender an amount of compensation based
upon the degree or length of disability found by the independent medical
report at such time as an evaluation of disability can be made. If the
claimant is successful in review proceedings before the Board or court in
any such case an award may be made in favor of the claimant and against
the employer or carrier for a reasonable attorney's fee for claimant's
counsel in accord with the above provisions. In all other cases any claim
for legal services shall not be assessed against the employer or carrier
(see Act, section 28(b)).

§ 702.135   Payment of claimant's witness fees and
mileage in disputed claims.

top

In cases where an attorney's fee is awarded against an employer or
carrier there may be further assessed against such employer or carrier as
costs, fees and mileage for necessary witnesses attending the hearing at
the instance of claimant. Both the necessity for the witness and the
reasonableness of the fees of expert witnesses must be approved by the
hearing officer, the Board, or the court, as the case may be. The amounts
awarded against an employer or carrier as attorney's fees, costs, fees and
mileage for witnesses shall not in any respect affect or diminish the
compensation payable under this Act (see Act, section 28 (d)).

Information and Assistance for Claimants

top

§ 702.136   Requests for information and
assistance.

top

(a) General assistance. The Director shall, upon request,
provide persons covered by the Act with information and assistance
relating to the Act's coverage and compensation and the procedures for
obtaining such compensation including assistance in processing a
claim.

(b) Legal assistance to claimants. The Secretary may, upon
request, provide a claimant with legal assistance in processing a claim
under the Act. Such assistance may be made available to a claimant in the
discretion of the Solicitor of Labor or his designee at any time prior to
or during which the claim is being processed and shall be furnished
without charge to the claimant. Legal representation of the claimant in
adjudicatory proceedings may be furnished in cases in which the
Secretary's interest in the case is not adverse to that of the
claimant.

(c) Other assistance. The district directors and their staff, as
designees of the Director, shall promptly and fully comply with the
request of a claimant receiving compensation for information about, and
assistance in obtaining, medical, manpower, and vocational rehabilitation
services (see also subparts D and E of this part).

Commutation of Payments and Special Fund

top

§ 702.142   Commutation of payments; aliens not
residents or about to become nonresidents.

top

(a) Pursuant to section 9(g) of the Act, 33 U.S.C. 909(g), compensation
paid to aliens not residents, or about to become nonresidents, of the
United States or Canada shall be in the same amount as provided for
residents except that dependents in any foreign country shall be limited
to surviving spouse and child or children, or if there be no surviving
spouse or child or children, to surviving father or mother whom the
employee has supported, either wholly or in part, for the period of 1 year
prior to the date of injury, and except that the Director, OWCP, may, at
his option, or upon the application of the insurance carrier he shall,
commute all future installments of compensation to be paid to such aliens
by paying or causing to be paid to them one-half of the commuted amount of
such future installments of compensation as determined by the
Director.

(b) Applications for commutation under this section shall be made in
writing to the district director having jurisdiction, and forwarded by the
district director to the Director, for final action.

(c) Applications for commutations shall be made effective, if approved
by the Director, on the date received by the district director, or on a
later date if shown to be appropriate on the application.

(d) Commutations shall not be made with respect to a person journeying
abroad for a visit who has previously declared an intention to return and
has stated a time for returning, nor shall any commutation be made except
upon the basis of a compensation order fixing the right of the beneficiary
to compensation.

[50 FR 394, Jan. 3, 1985]

§ 702.143   Establishment of special
fund.

top

Congress, by section 44 of the Act, 33 U.S.C. 944, established in the
U.S. Treasury a special fund, to be administered by the Secretary. The
Treasurer of the United States is the custodian of such fund, and all
monies and securities in such fund shall be held in trust by the Treasurer
and shall not be money or property of the United States. The Treasurer
shall make disbursements from such funds only upon the order of the
Director, OWCP, as delegatee of the Secretary. The Act requires that the
Treasurer give bond, in an amount to be fixed and with securities to be
approved by the Secretary of the Treasury and the Comptroller General of
the United States, conditioned upon the faithful performance of his duty
as custodian of such fund.

§ 702.144   Purpose of the special
fund.

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This special fund was established to give effect to a congressional
policy determination that, under certain circumstances, the employer of a
particular employee should not be required to bear the entire burden of
paying for the compensation benefits due that employee under the Act.
Instead, a substantial portion of such burden should be borne by the
industry generally. Section 702.145 describes this special circumstance
under which the particular employer is relieved of some of his burden.
Section 702.146 describes the manner and circumstances of the input into
the fund.

§ 702.145   Use of the special fund.

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(a) Under section 10 of the Act. This section provides for
initial and subsequent annual adjustments in compensation and continuing
payments to beneficiaries in cases of permanent total disability or death
which commenced or occurred prior to enactment of the 1972 Amendments to
this Act (Pub. L. 92–576, approved Oct. 27, 1972). At the discretion of
the Director, such payments may be paid directly by him to eligible
beneficiaries as the obligation accrues, one-half from the special fund
and one-half from appropriations, or he may require insurance carriers or
self-insured employers already making payments to such beneficiaries to
pay such additional compensation as the amended Act requires. In the
latter case such carriers and self-insurers shall be reimbursed by the
Director for such additional amounts paid, in the proportion of one-half
the amount from the special fund and one-half the amount from
appropriations. To obtain reimbursement, the carriers and self-insurers
shall submit claims for payments made by them during previous periods at
intervals of not less than 6 months. A form has been prescribed for such
purpose and shall be used. No administrative claims service expense
incurred by the carrier or self-insurer shall be included in the claim and
no such expense shall be allowed. The amounts reimbursed to such carrier
or self-insurer shall be limited to amounts actually due and previously
paid to beneficiaries.

(b) Under section 8(f) of the Act (Second Injuries). In any case in
which an employee having an existing permanent partial disability suffers
injury, the employer shall provide compensation for such disability as is
found to be attributable to that injury based upon the average weekly
wages of the employee at the time of injury. If, following an injury
falling within the provisions of section 8(c)(1)–(20), the employee with
the pre-existing permanent partial disability becomes permanently and
totally disabled after the second injury, but such total disability is
found not to be due solely to his second injury, the employer (or carrier)
shall be liable for compensation as provided by the provisions of section
8(c)(1)–(20) of the Act, 33 U.S.C. 908(c)(1)–(20) or for 104 weeks,
whichever is greater. However, if the injury is a loss of hearing covered
by section 8(c)(13), 33 U.S.C. 908(c)(13), the liability shall be the
lesser of these periods. In all other cases of a second injury causing
permanent total disability (or death), wherein it is found that such
disability (or death) is not due solely to the second injury, and wherein
the employee had a pre-existing permanent partial disability, the employer
(or carrier) shall first pay compensation under section 8(b) or (e) of the
Act, 33 U.S.C. 908(b) or (e), if any is payable thereunder, and shall then
pay 104 weeks compensation for such total disability or death, and none
otherwise. If the second injury results in permanent partial disability,
and if such disability is compensable under section 8(c)(1)–(20) of the
Act, 33 U.S.C. 908(c)(1)–(20), but the disability so compensable did not
result solely from such second injury, and the disability so compensable
is materially and substantially greater than that which would have
resulted from the second injury alone, then the employer (or carrier)
shall only be liable for the amount of compensation provided for in
section 8(c)(1)–(20) that is attributable to such second injury, or for
104 weeks, whichever is greater. However, if the injury is a loss of
hearing covered by section 8(c)(13), 33 U.S.C. 908(c)(13), the liability
shall be the lesser of these periods. In all other cases wherein the
employee is permanently and partially disabled following a second injury,
and wherein such disability is not attributable solely to that second
injury, and wherein such disability is materially and substantially
greater than that which would have resulted from the second injury alone,
and wherein such disability following the second injury is not compensable
under section 8(c)(1)–(20) of the Act, then the employer (or carrier)
shall be liable for such compensation as may be appropriate under section
8(b) or (e) of the Act, 33 U.S.C. 908(b) or (e), if any, to be followed by
a payment of compensation for 104 weeks, and none other. The term
“compensation” herein means money benefits only, and does not include
medical benefits. The procedure for determining the extent of the
employer's (or carrier's) liability under this paragraph shall be as
provided for in the adjudication of claims in subpart C of this part 702.
Thereafter, upon cessation of payments which the employer is required to
make under this paragraph, if any additional compensation is payable in
the case, the district director shall forward such case to the Director
for consideration of an award to the person or persons entitled thereto
out of the special fund. Any such award from the special fund shall be by
order of the Director or Acting Director.

(c) Under sections 8 ( g ) and 39 ( c )(
2 ) of the Act. These sections, 33 U.S.C. 908(g) and
939(c)(2), respectively, provide for vocational rehabilitation of disabled
employees, and authorize, under appropriate circumstances, a maintenance
allowance for the employee (not to exceed $25 a week) in additional to
other compensation benefits otherwise payable for his injury-related
disability. Awards under these sections are made from the special fund
upon order of the Director or his designee. The district directors may be
required to make investigations with respect to any case and forward to
the Director their recommendations as to the propriety and need for such
maintenance.

(d) Under section 39 ( c )( 2 ) of the Act.
In addition to the maintenance allowance for the employee discussed in
paragraph (c) of this section, the Director is further authorized to use
the fund in such amounts as may be necessary to procure the vocational
training services.

(e) Under section 7 ( e ) of the Act. This
provision, 33 U.S.C. 907(e), authorizes payment by the Director from the
special fund for special medical examinations, i.e. , those
obtained from impartial specialists to resolve disputes, when such special
examinations are deemed necessary under that statutory provision. The
Director has the discretionary power, however, to charge the cost of such
examination to the insurance carrier or self-insured employer.

(f) Under section 18 ( b ) of the Act. This
section, 33 U.S.C. 918(b), provides a source for payment of compensation
benefits in cases where the employer is insolvent, or other circumstances
preclude the payment of benefits due in any case. In such situations, the
district director shall forward the case to the Director for consideration
of an award from the special fund, together with evidence with respect to
the employer's insolvency or other reasons for nonpayment of benefits due.
Benefits, as herein used, means medical care or supplies within the
meaning of section 7 of the Act, 33 U.S.C. 907, and subpart D of this part
702, as well as monetary benefits. Upon receipt of the case, the Director
shall promptly determine whether an award from the special fund is
appropriate and advisable in the case, having due regard for all other
current commitments from the special fund. If such an award is made, the
employer shall be liable for the repayment into the fund of the amounts
paid therefrom, as provided in 33 U.S.C. 918(b).
(The information
collection requirements contained in paragraph (a) were approved by the
Office of Management and Budget under control number 1215–0065. The
information collection requirements contained in paragraph (b) were
approved by the Office of Management and Budget under control number
1215–0073)

(Pub. L. No. 96–511)

[38 FR 26861, Sept. 26, 1973, as amended at 49 FR 18294, Apr. 30, 1984;
51 FR 4282, Feb. 3, 1986]

§ 702.146   Source of the special fund.

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(a) All amounts collected as fines and penalties under the several
provisions of the Act shall be paid into the special fund (33 U.S.C.
44(c)(3)).

(b) Whenever an employee dies under circumstances creating a liability
on an employer to pay death benefits to the employee's beneficiaries, and
whenever there are no such beneficiaries entitled to such payments, the
employer shall pay $5,000 into the special fund (Act, section 44(c)(1)).
In such cases, the compensation order entered in the case shall
specifically find that there is such liability and that there are no
beneficiaries entitled to death benefits, and shall order payment by the
employer into the fund. Compensation orders shall be made and filed in
accordance with the regulations in subpart C of this part 702, except that
for this purpose the district director settling the case under §702.315
shall formalize the memorandum of conference in a compensation order, and
shall file such order as provided for in §702.349.

(c) The Director annually shall assess an amount against insurance
carriers and self-insured employers authorized under the Act and part 703
of this subchapter to replenish the fund. That total amount to be charged
all carriers and self-insurers to be assessed shall be based upon an
estimate of the probable expenses of the fund during the calendar year.
The assessment against each carrier and self-insurer shall be based upon
(1) the ratio of the amount each paid during the prior calendar year for
compensation in relation to the amount all such carriers of self-insurers
paid during that period for compensation, and (2) the ratio of the amount
of payments made by the special fund for all cases being paid under
section 8(f) of the Act, 33 U.S.C. 908(f), during the preceding calendar
year which are attributable to the carrier or self-insurer in relation to
the total of such payments during such year attributable to all carriers
and self-insurers. The resulting sum of the percentages from paragraphs
(c) (1) and (2) of this section will be divided by two, and the resulting
percentage multiplied by the probable expenses of the fund. The Director
may, in his or her discretion, condition continuance or renewal of
authorization under part 703 upon prompt payment of the assessment.
However, no action suspending or revoking such authorization shall be
taken without affording such carrier or self-insurer a hearing before the
Director or his/her designee.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 395, Jan. 3, 1985; 51
FR 4282, Feb. 3, 1986]

§ 702.147   Enforcement of special fund
provisions.

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(a) As provided in section 44(d)(1) of the Act, 33 U.S.C. 944(d)(1),
for the purpose of making rules, regulations, and determinations under the
special fund provisions in section 44 and for providing enforcement
thereof, the Director may investigate and gather appropriate data from
each carrier and self-insured employer, and may enter and inspect such
places and records (and make such transcriptions of records), question
such employees, and investigate such facts, conditions, practices, or
other matters as he may deem necessary or appropriate. The Director may
require the employer to have audits performed of claims activity relating
to this Act. The Director may also require detailed reports of payments
made under the Act, and of estimated future liabilities under the Act,
from any or all carriers of self-insurers. The Director may require that
such reports be certified and verified in whatever manner is considered
appropriate.

(b) Pursuant to section 44(d)(3) of the Act, 33 U.S.C. 944(d)(3), for
the purpose of any hearing or investigation related to determinations or
the enforcement of the provisions of section 44 with respect to the
special fund, the provisions of 15 U.S.C. 49 and 50 as amended (the
Federal Trade Commission Act provisions relating to attendance of
witnesses and the production of books, papers, and documents) are made
applicable to the jurisdiction, powers, and duties of the Director, OWCP,
as the Secretary's delegatee.

(c) Civil penalties and unpaid assessments shall be collected by civil
suits brought by and in the name of the Secretary.
(Approved by the
Office of Management and Budget under control number 1215–0160)

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 395, Jan. 3,
1985]

§ 702.148   Insurance carriers' and self-insured
employers' responsibilities.

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(a) Each carrier and self-insured employer shall make, keep, and
preserve such records, and make such reports and provide such additional
information as the Director prescribes or orders, which he considers
necessary or appropriate to effectively carry out his
responsibilities.

(b) Consistent with their greater direct liability stemming from the
amended assessment formula, employers and insurance carriers are given the
authority to monitor their claims in the special fund as outlined in
paragraph (c) of this section. For purposes of monitoring these claims,
employers and insurance carriers remain parties in interest to the claim
and are allowed access to all records relating to the claim. Similarly,
employers and insurance carriers can initiate proceeding to modify an
award of compensation after the special fund has assumed the liability to
pay benefits. It is intended that employers and insurance carriers have
neither a greater nor a lesser responsibility in this new role that they
not have with regard to cases that remain their sole liability. (See
§702.373(d).)

(c) An employer or insurance carrier may conduct any reasonable
investigation regarding cases placed into the special fund by the employer
or insurance carrier. Such investigation may include, but shall not be
limited to, a semi-annual request for earnings information pursuant to
section 8(j) of the Act, 33 U.S.C. 908(j) (See §702.285) periodic medical
examinations, vocational rehabilitation evaluations, and requests for any
additional information needed to effectively monitor such a
case.
(Approved by the Office of Management and Budget under control
number 1215–0118)

(Pub. L. No. 96–511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.
))

[38 FR 26861, Sept. 26, 1973, as amended at 47 FR 145, Jan. 5, 1982; 50
FR 395, Jan. 3, 1985]

Liens on Compensation

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§ 702.161   Liens against assets of insurance
carriers and employers.

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Where payments have been made from the special fund pursuant to section
18(b) of the Act, 33 U.S.C. 918(b) and §704.145(f) the Secretary of Labor
shall, for the benefit of the fund, be subrogated to all the rights of the
person receiving such payments. The Secretary may institute proceedings
under either section 18 or 21(d) of the Act, 33 U.S.C. 918 or 921(d), or
both, to recover the amount expended by the fund or so much as in the
judgement of the Secretary is possible, or the Secretary may settle or
compromise any such claim.

[50 FR 395, Jan. 3, 1985]

§ 702.162   Liens on compensation authorized under
special circumstances.

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(a) Pursuant to section 17 of the Act, 33 U.S.C. 917, when a trust fund
which complies with section 302(c) of the Labor-Management Relations Act
of 1947, 29 U.S.C. 186(c) [LMRA], established pursuant to a collective
bargaining agreement in effect between an employer and an employee
entitled to compensation under this Act, has paid disability benefits to
an employee which the employee is legally obligated to repay by reason of
his entitlement to compensation under this Act, a lien shall be authorized
on such compensation in favor of the trust fund for the amount of such
payments.

(b)(1) An application for such a lien shall be filed on behalf of the
trust fund with the district director for the compensation district where
the claim for compensation has been filed, 20 CFR 702.101. Such
application shall include a certified statement by an authorized official
of the trust fund that:

(i) The trust fund is entitled to a lien in its favor by reason of its
payment of disability payments to a claimant-employee (including his name
therein);

(ii) The trust fund was created pursuant to a collective bargaining
agreement covering the claimant-employee;

(iii) The trust fund complies with section 302(c) of the
Labor-Management Relations Act of 1947, 29 U.S.C. 186(c);

(iv) The trust agreement contains a subrogation provision entitling the
fund to reimbursement for disability benefits paid to the
claimant-employee who is entitled to compensation under the Longshoremen's
Act;

(2) The statement shall also state the amount paid to the named
claimant-employee and whether such disability benefit payments are
continuing to be paid.

(3) If the claimant has signed a statement acknowledging receipt of
disability benefits from the trust fund and/or a statement recognizing the
trust fund's entitlement to a lien against compensation payments which may
be received under the Longshoremen's and Harbor Worker's Compensation Act
as a result of his present claim and for which the fund is providing
disability payments, such statement(s) shall also be included with or
attached to the application.

(c) Upon receipt of this application, the district director shall,
within a reasonable time, notify the claimant, the employer and/or its
compensation insurance carrier that the request for a lien has been filed
and each shall be provided with a copy of the application. If the claimant
disputes the right of the trust fund to the lien or the amount stated, if
any, he shall, within 30 days after receipt of the application or such
other longer period as the district director may set, notify the district
director and he shall be given an opportunity to challenge the right of
the trust fund to, or the amount of, the asserted lien; notice to either
the employer or its compensation insurance carrier shall constitute notice
to both of them.

(d) If the claim for compensation benefits is resolved without a formal
hearing and if there is no dispute over the amount of the lien or the
right of the trust fund to the lien, the district director may order and
impose the lien and he shall notify all parties of the amount of the lien
and manner in which it is to be paid.

(e) If the claimant's claim for compensation cannot be resolved
informally, the district director shall transfer the case to the Office of
the Chief Administrative Law Judge for a formal hearing, pursuant to
section 19(d) of the Act, 33 U.S.C. 919(d), and 20 CFR 702.317. The
district director shall also submit therewith the application for the lien
and all documents relating thereto.

(f) If the administrative law judge issues a compensation order in
favor of the claimant, such order shall establish a lien in favor of the
trust fund if it is determined that the trust fund has satisfied all of
the requirements of the Act and regulations.

(g) If the claim for compensation is not in dispute, but there is a
dispute as to the right of the trust fund to a lien, or the amount of the
lien, the district director shall transfer the matter together with all
documents relating thereto to the Office of the Chief Administrative Law
Judge for a formal hearing pursuant to section 19(d) of the Act, 33 U.S.C.
919(d), and 20 CFR 702.317.

(h) In the event that either the district director or the
administrative law judge is not satisfied that the trust fund qualifies
for a lien under section 17, the district director or administrative law
judge may require further evidence including but not limited to the
production of the collective bargaining agreement, trust agreement or
portions thereof.

(i) Before any such lien is approved, if the trust fund has provided
continued disability payments after the application for a lien has been
filed, the trust fund shall submit a further certified statement showing
the total amount paid to the claimant as disability payments. The claimant
shall likewise be given an opportunity to contest the amount alleged in
this subsequent statement.

(j) In approving a lien on compensation, the district director or
administrative law judge shall not order an initial payment to the trust
fund in excess of the amount of the past due compensation. The remaining
amount to which the trust fund is entitled shall thereafter be deducted
from the affected employee's subsequent compensation payments and paid to
the trust fund, but any such payment to the trust fund shall not exceed 10
percent of the claimant-employee's bi-weekly compensation
payments.
(Approved by the Office of Management and Budget under
control number 1215–0160)

[42 FR 45301, Sept. 9, 1977, as amended at 50 FR 395, Jan. 3, 1985; 51
FR 4282, Feb. 3, 1986]

Certification of Exemption

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§ 702.171   Certification of exemption,
general.

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An employer may apply to the Director or his/her designee to certify a
particular facility as one engaged in the building, repairing or
dismantling of exclusively small vessels, as defined. Once certified,
injuries sustained at that facility would not be covered under the Act
except for injuries which occur over the navigable waters of the United
States including any adjoining pier, wharf, dock, facility over land for
launching vessels or for hauling, lifting or drydocking vessels. A
facility otherwise covered under the Act remains covered until
certification of exemption is issued; a certification will be granted only
upon submission of a complete application (described in §702.174), and
only for as long as a facility meets the requirements detailed in section
3(d) of the Act, 33 U.S.C. 903(d). This exemption from coverage is not
intended to be used by employers whose facilities from time to time may
temporarily meet the criteria for qualification but only for facilities
which work on exclusively small vessels, as defined.

[50 FR 396, Jan. 3, 1985]

§ 702.172   Certification; definitions.

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For purposes of §§702.171 through 702.175 dealing with certification of
small vessel facilities, the following definitions are applicable.

(a)(1) “Small vessel” means only those vessels described in section
3(d)(3) of the Act, 33 U.S.C. 903(d)(3), that is:

(i) A commercial barge which is under 900 lightship displacement tons
(long); or

(ii) A commercial tugboat, towboat, crewboat, supply boat, fishing
vessel or other work vessel which is under 1,600 tons gross.

(2) For these purposes: (i) One gross ton equals 100 cubic feet, as
measured by the current formula contained in the Act of May 6, 1894 as
amended through 1974 (46 U.S.C. 77); (ii) one long ton equals 2,240 lbs;
and (iii) “Commercial” as it applies to “vessel” means any vessel engaged
in commerce but does not include military vessels or Coast Guard
vessels.

(b) “Federal Maritime Subsidy” means the construction differential
subsidy (CDS) or operating differential subsidy under the Merchant Marine
Act of 1936 (46 U.S.C. 1101 et seq. ).

(c) facility means an operation of an employer at a particular
contiguous geographic location.

[51 FR 4283, Feb. 3, 1986]

§ 702.173   Exemptions; requirements,
limitations.

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(a) Injuries at a facility otherwise covered by the Act are exempted
only upon certification that the facility is: (1) Engaged in the building,
repairing or dismantling of exclusively small commercial vessels; and (2)
does not receive a Federal maritime subsidy.

(b) The exemption does not apply to: (1) Injuries at any facility which
occur over the navigable waters of the United States or upon any adjoining
pier, wharf, dock, facility over land for launching vessels or for
hauling, lifting or drydocking vessels; or (2) where the employee at such
facility is not subject to a State workers' compensation law.

[50 FR 396, Jan. 3, 1985]

§ 702.174   Exemptions; necessary
information.

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(a) Application. Before any facility is exempt from coverage
under the Act, the facility must apply for and receive a certificate of
exemption from the Director or his/her designee. The application must be
made by the owner of the facility; where the owner is a partnership it
shall be made by a partner and where a corporation by an officer of the
corporation or the manager in charge of the facility for which an
exemption is sought. The information submitted shall include the
following:

(1) Name, location, physical description and a site plan or aerial
photograph of the facility for which an exemption is sought.

(2) Description of the nature of the business.

(3) An affidavit (signed by a partner if the facility is owned by a
partnership or an officer if owned by a corporation) vertifying and/or
acknowledging that:

(i) the facility is, as of the date of the application, engaged in the
business of building, repairing or dismantling exclusively small
commercial vessels and that it does not then nor foreseeably will it
engage in the building, repairing or dismantling of other than small
vessels.

(ii) The facility does not receive any Federal maritime subsidy.

(iii) The signator has the duty to immediately inform the district
director of any change in these or other conditions likely to result in a
termination of an exemption.

(iv) the employer has secured appropriate compensation liability under
a State workers' compensation law.

(v) Any false, relevant statements relating to the application or the
failure to notify the district director of any changes in circumstances
likely to result in termination of the exemption will be grounds for
revocation of the exemption certificate and will subject the employer to
all provisions of the Act, including all duties, responsibilities and
penalties, retroactive to the date of application or date of change in
circumstances, as appropriate.

(b) Action by the Director. The Director or his/her designee
shall review the application within thirty (30) days of its receipt.

(1) Where the application is complete and shows that all requirements
under §702.173 are met, the Director shall promptly notify the employer by
certified mail, return receipt requested, that certification has been
approved and will be effective on the date specified. The employer is
required to post notice of the exemption at a conspicuous location.

(2) Where the application is incomplete or does not substantiate that
all requirements of section 3(d) of the Act, 33 U.S.C. 903(d), have been
met, or evidence shows the facility is not eligible for exemption, the
Director shall issue a letter which details the reasons for the deficiency
or the rejection. The employer/applicant may reapply for certification,
correcting deficiencies and/or responding to the reasons for the
Director's denial. The Director or his/her designee shall issue a new
decision within a reasonable time of reapplication following denial. Such
action will be the final administrative review and is not appealable to
the Administrative Law Judge or the Benefits Review Board.

(c) The Director or another designated individual at any time has the
right to enter on and inspect any facility seeking exemption for purposes
of verifying information provided on the application form.

(d) Action by the employer. Immediately upon receipt of the
certificate of exemption from coverage under the Act the employer shall
post:

(1) A general notice in a conspicuous place that the Act does not cover
injuries sustained at the facility in question, the basis of the
exemption, the effective date of the exemption and grounds for termination
of the exemption.

(2) A notice, where applicable, at the entrances to all areas to which
the exemption does not apply.
(Approved by the Office of Management and
Budget under control number 1215–0160)

[50 FR 396, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, 1986]

§ 702.175   Effect of work on excluded vessels;
reinstatement of certification.

top

(a) When a vessel other than a small commercial vessel, as defined in
§702.172, enters a facility which has been certified as exempt from
coverage, the exemption shall automatically terminate as of the date such
a vessel enters the facility. The exemption shall also terminate on the
date a contract for a Federal maritime subsidy is entered into, and, in
the situation where the facility undertakes to build a vessel other than a
small vessel, when the construction first takes on the characteristics of
a vessel, i.e. , when the keel is laid. All duties, obligations and
requirements imposed by the Act, including the duty to secure compensation
liability as required by sections 4 and 32 of the Act, 33 U.S.C. 904 and
932, and to keep records and forward reports, are effective immediately.
The employer shall notify the Director or his/her designee immediately
where this occurs.

(b) Where an exemption certification is terminated because of
circumstances described in (a), the employer may apply for reinstatement
of the exemption once the event resulting in termination of the exemption
ends. The reapplication shall consist of a reaffirmation of the nature of
the business, an explanation of the circumstances leading to the
termination of exemption, and an affidavit by the appropriate person
affirming that the circumstances prompting the termination no longer
exists nor will they reoccur in the forseeable future and that the
facility is engaged in building, repairing or dismantling exclusively
small vessels. The Director or the Director's designee shall respond to
the complete reapplication within ten working days of receipt.

[50 FR 397, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, 1986]

Subpart B—Claims Procedures

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Employer's Reports

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§ 702.201   Reports from employers of employee's
injury or death.

top

(a) Within 10 days from the date of an employee's injury or death, or
10 days from the date an employer has knowledge of an employee's injury or
death, including any disease or death proximately caused by the
employment, the employer shall furnish a report thereof to the district
director for the compensation district in which the injury or death
occurred, and shall thereafter furnish such additional or supplemental
reports as the district director may request.

(b) No report shall be filed unless the injury causes the employee to
lose one or more shifts from work. However, the employer shall keep a
record containing the information specified in §702.202. Compliance with
the current OSHA injury record keeping requirements at 29 CFR part 1904
will satisfy the record keeping requirements of this section for no lost
time injuries.
(Approved by the Office of Management and Budget under
control number 1215–0160)

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 397, Jan. 3, 1985; 51
FR 4283, Feb. 3, 1986]

§ 702.202   Employer's report; form and
contents.

top

The employer's report of an employee's injury or death shall be in
writing and on a form prescribed by the Director for this purpose, and
shall contain:

(a) The name, address and business of the employer;

(b) The name, address, occupation and Social Security Number (SSN) of
the employee;

(c) The cause, nature, and other relevant circumstances of the injury
or death;

(d) The year, month, day, and hour when, and the particular locality
where, the injury or death occurred;

(e) Such other information as the Director may require.
(Approved by
the Office of Management and Budget under control numbers 1215–0031 and
1215–0063)

[58 FR 68032, Dec. 23, 1993]

§ 702.203   Employer's report; how
given.

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The employer's report, an original and one copy, may be furnished by
delivering it to the appropriate office of the district director, or by
mailing it to said office.

§ 702.204   Employer's report; penalty for failure
to furnish and or falsifying.

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Any employer, insurance carrier, or self-insured employer who knowingly
and willfully fails or refuses to send any report required by §702.201, or
who knowingly or willfully makes a false statement or misrepresentation in
any report, shall be subject to a civil penalty not to exceed $10,000.00
for each such failure, refusal, false statement, or misrepresentation.
Provided, however, that for any violations occurring on or after
November 17, 1997 the maximum civil penalty may not exceed $11,000.00. The
district director has the authority and responsibility for assessing a
civil penalty under this section.

[62 FR 53956, Oct. 17, 1997]

§ 702.205   Employer's report; effect of failure
to report upon time limitations.

top

Where the employer, or agent in charge of the business, or carrier has
been given notice or has knowledge of an employee's injury or death, and
fails, neglects, or refuses to file a report thereof as required by
§702.201, the time limitations provisions with respect to the filing of
claims for compensation for disability or death (33 U.S.C. 913(a), and see
§702.221) shall not begin to run until such report shall have been
furnished as required herein.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 397, Jan. 3,
1985]

Notice

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§ 702.211   Notice of employee's injury or death;
designation of responsible official.

top

(a) In order to claim compensation under the Act, an employee or
claimant must first give notice of the fact of an injury or death to the
employer and also may give notice to the district director for the
compensation district in which the injury or death occurred. Notice to the
employer must be given to that individual whom the employer has designated
to receive such notices. If no individual has been so designated notice
may be given to: (1) The first line supervisor (including foreman,
hatchboss or timekeeper), local plant manager or personnel office
official; (2) to any partner if the employer is a partnership; or (3) if
the employer is a corporation, to any authorized agent, to an officer or
to the person in charge of the business at the place where the injury
occurred. In the case of a retired employee, the employee/claimant may
submit the notice to any of the above persons, whether or not the employer
has designated an official to receive such notice.

(b) In order to facilitate the filing of notices, each employer shall
designate at least one individual responsible for receiving notices of
injury or death; this requirement applies to all employers. The
designation shall be by position and the employer shall provide the name
and/or position, exact location and telephone number of the individual to
all employees by the appropriate method described below.

(1) Type of individual. Designees must be a first line
supervisor (including a foreman, hatchboss or timekeeper), local plant
manager, personnel office official, company nurse or other individual
traditionally entrusted with this duty, who is located full-time on the
premises of the covered facility. The employer must designate at least one
individual at each place of employment or one individual for each work
crew where there is no fixed place of employment (in that case, the
designation should always be the same position for all work crews).

(2) How designated. The name and/or title, the location and
telephone number of the individual who is selected by the employer to
receive all notices shall be given to the district director for the
compensation district in which the facility is located; posting on the
worksite in a conspicuous place shall fulfill this requirement. A
redesignation shall be effected by a change in posting.

(3) Publication. Every employer shall post the name and/or
position, the exact location and telephone number of the designated
official. The posting shall be part of the general posting requirement,
done on a form prescribed by the Director, and placed in a conspicuous
location. Posting must be done at each worksite.

(4) Effect of failure to designate. Where an employer fails to
properly designate and to properly publish the name and/or position of the
individual authorized to receive notices of injury or death, such failure
shall constitute satisfactory reasons for excusing the employee/claimant's
failure to give notice as authorized by section 12(d)(3)(ii) of the Act,
33 U.S.C. 912(d)(3)(ii).
(Approved by the Office of Management and
Budget under control number 1215–0160)

[50 FR 397, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, 1986]

§ 702.212   Notice; when given; when given for
certain occupational diseases.

top

(a) For other than occupational diseases described in (b), the employee
must give notice within thirty (30) days of the date of the injury or
death. For this purpose the date of injury or death is:

(1) The day on which a traumatic injury occurs;

(2) The date on which the employee or claimant is or by the exercise of
reasonable diligence or by reason of medical advice, should have been
aware of a relationship between the injury or death and the employment;
or

(3) In the case of claims for loss of hearing, the date the employee
receives an audiogram, with the accompanying report which indicates the
employee has suffered a loss of hearing that is related to his or her
employment. (See §702.441).

(b) In the case of an occupational disease which does not immediately
result in disability or death, notice must be given within one year after
the employee or claimant becomes aware, or in the exercise of reasonable
diligence or by reason of medical advice, should have been aware, of the
relationship between the employment, the disease and the death or
disability. For purposes of these occupational diseases, therefore, the
notice period does not begin to run until the employee is disabled, or in
the case of a retired employee, until a permanent impairment exists.

(c) For purposes of workers whose coverage under this Act is dependent
on denial of coverage under a State compensation program, as described in
§701.401, the time limitations set forth above do not begin to run until a
final decision denying State coverage is issued under the State
compensation act.
(Approved by the Office of Management and Budget
under control number 1215–0160)

[50 FR 397, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, 1986]

§ 702.213   Notice; by whom given.

top

Notice shall be given by the injured employee or someone on his behalf,
or in the case of death, by the deceased employee's beneficiary or someone
on his behalf.

[38 FR 26861, Sept. 26, 1973. Redesignated at 50 FR 397, Jan. 3,
1985]

§ 702.214   Notice; form and content.

top

Notice shall be in writing on a form prescribed by the Director for
this purpose; such form shall be made available to the employee or
beneficiary by the employer. The notice shall be signed by the person
authorized to give notice, and shall contain the name, address and Social
Security Number (SSN) of the employee and, in death cases, also the SSN of
the person seeking survivor benefits, and a statement of the time, place,
nature and cause of the injury or death.

[58 FR 68032, Dec. 23, 1993]

§ 702.215   Notice; how given.

top

Notice shall be effected by delivering it—by hand or by mail at the
address posted by the employer—to the individual designated to receive
such notices. Notice when given to the district director, may be by hand
or by mail on a form supplied by the Secretary, or orally in person or by
telephone.
(Approved by the Office of Management and Budget under
control number 1215–0160)

[50 FR 398, Jan. 3, 1985]

§ 702.216   Effect of failure to give
notice.

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Failure to give timely notice to the employer's designated official
shall not bar any claim for compensation if: (a) The employer, carrier, or
designated official had actual knowledge of the injury or death; or (b)
the district director or ALJ determines the employer or carrier has not
been prejudiced: or (c) the district director excuses failure to file
notice. For purposes of this subsection, actual knowledge shall be deemed
to exist if the employee's immediate supervisor was aware of the injury
and/or in the case of a hearing loss, where the employer has furnished to
the employee an audiogram and report which indicates a loss of hearing.
Failure to give notice shall be excused by the district director if: a)
Notice, while not given to the designated official, was given to an
official of the employer or carrier, and no prejudice resulted; or b) for
some other satisfactory reason, notice could not be given. Failure to
properly designate and post the individual so designated shall be
considered a satisfactory reason. In any event, such defense to a claim
must be raised by the employer/carrier at the first hearing on the
claim.

[51 FR 4283, Feb. 3, 1986]

§ 702.217   Penalty for false statement,
misrepresentation.

top

(a) Any claimant or representative of a claimant who knowingly and
willfully makes a false statement or representation for the purpose of
obtaining a benefit or payment under this Act shall be guilty of a felony,
and on conviction thereof shall be punished by a fine not to exceed
$10,000, by imprisonment not to exceed five years, or by both.

(b) Any person including, but not limited to, an employer, its duly
authorized agent or an employee of an insurance carrier, who knowingly and
willingly makes a false statement or representation for the purpose of
reducing, denying or terminating benefits to an injured employee, or his
dependents pursuant to section 9, 33 U.S.C. 909, if the injury results in
death, shall be punished by a fine not to exceed $10,000, by imprisonment
not to exceed five years, or both.

[50 FR 398, Jan. 3, 1985]

Claims

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§ 702.221   Claims for compensation; time
limitations.

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(a) Claims for compensation for disability or death shall be in writing
and filed with the district director for the compensation district in
which the injury or death occurred. The Social Security Number (SSN) of
the injured employee and, in cases of death, the SSN of the person seeking
survivor benefits shall also be set forth on each claim. Claims may be
filed anytime after the seventh day of disability or anytime following the
death of the employee. Except as provided below, the right to compensation
is barred unless a claim is filed within one year of the injury or death,
or (where payment is made without an award) within one year of the date on
which the last compensation payment was made.

(b) In the case of a hearing loss claim, the time for filing a claim
does not begin to run until the employee receives an audiogram with the
accompanying report which indicates the employee has sustained a hearing
loss that is related to his or her employment. (See
§702.441).
(Approved by the Office of Management and Budget under
control number 1215–0160)

[50 FR 398, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, 1986; 58 FR
68032, Dec. 23, 1993]

§ 702.222   Claims; exceptions to time
limitations.

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(a) Where a person entitled to compensation under the Act is mentally
incompetent or a minor, the time limitation provision of §702.221 shall
not apply to a mentally incompetent person so long as such person has no
guardian or other authorized representative, but §702.221 shall be
applicable from the date of appointment of such guardian or other
representative. In the case of minor who has no guardian before he or she
becomes of age, time begins to run from the date he or she becomes of
age.

(b) Where a person brings a suit at law or in admiralty to recover
damages in respect of an injury or death, or files a claim under a State
workers' compensation act because such person is excluded from this Act's
coverage by reason of section 2(3) or 3(d) of the Act (33 U.S.C. 902(3) or
903(d)), and recovery is denied because the person was an employee and
defendant was an employer within the meaning of the Act, and such employer
had secured compensation to such employee under the Act, the time
limitation in §702.221 shall not begin to run until the date of
termination of such suit or proceeding.

(c) Notwithstanding the provisions in paragraph (a) of this section,
where the claim is one based on disability or death due to an occupational
disease which does not immediately result in death or disability, it must
be filed within two years after the employee or claimant becomes aware, or
in the exercise of reasonable diligence or by reason of medical advice,
should have been aware of the relationship between the employment, the
disease and the death or disability, or within one year of the date of
last payment of compensation, whichever is later. For purposes of
occupational disease, therefore, the time limitation for filing a claim
does not begin to run until the employee is disabled, or in the case of a
retired employee, where a permanent impairment exists.

(d) The time limitations set forth above do not apply to claims filed
under section 49 of the Act, 33 U.S.C. 949.
(Approved by the Office of
Management and Budget under control number 1215–0160)

[50 FR 398, Jan. 3, 1985]

§ 702.223   Claims; time limitations; time to
object.

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Notwithstanding the requirements of §702.221, failure to file a claim
within the period prescribed in such section shall not be a bar to such
right unless objection to such failure is made at the first hearing of
such claim in which all parties in interest are given reasonable notice
and opportunity to be heard.

[38 FR 26861, Sept. 26, 1973. Redesignated and amended at 50 FR 397,
Jan. 3, 1985]

§ 702.224   Claims; notification of employer of
filing by employee.

top

Within 10 days after the filing of a claim for compensation for injury
or death under the Act, the district director shall give written notice
thereof to the employer or carrier, served personally or by mail.

[38 FR 26861, Sept. 26, 1973. Redesignated at 50 FR 397, Jan. 3, 1985,
as amended at 60 FR 51348, Oct. 2, 1995]

§ 702.225   Withdrawal of a claim.

top

(a) Before adjudication of claim. A claimant (or an individual
who is authorized to execute a claim on his behalf) may withdraw his
previously filed claim: Provided, That:

(1) He files with the district director with whom the claim was filed a
written request stating the reasons for withdrawal;

(2) The claimant is alive at the time his request for withdrawal is
filed;

(3) The district director approves the request for withdrawal as being
for a proper purpose and in the claimant's best interest; and

(4) The request for withdrawal is filed, on or before the date the OWCP
makes a determination on the claim.

(b) After adjudication of claim. A claim for benefits may be
withdrawn by a written request filed after the date the OWCP makes a
determination on the claim: Provided, That:

(1) The conditions enumerated in paragraphs (a) (1) through (3) of this
section are met; and

(2) There is repayment of the amount of benefits previously paid
because of the claim that is being withdrawn or it can be established to
the satisfaction of the Office that repayment of any such amount is
assured.

(c) Effect of withdrawal of claim. Where a request for
withdrawal of a claim is filed and such request for withdrawal is
approved, such withdrawal shall be without prejudice to the filing of
another claim, subject to the time limitation provisions of section 13 of
the Act and of the regulations in this part.

[38 FR 26861, Sept. 26, 1973. Redesignated at 50 FR 397, Jan. 3,
1985]

Noncontroverted Claims

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§ 702.231   Noncontroverted claims; payment of
compensation without an award.

top

Unless the employer controverts its liability to pay compensation under
this Act, the employer or insurance carrier shall pay periodically,
promptly and directly to the person entitled thereto benefits prescribed
by the Act. For this purpose, where the employer furnishes to an employee
a copy of an audiogram with a report thereon, which indicates the employee
has sustained a hearing loss causally related to factors of that
employment, the employer or insurance carrier shall pay appropriate
compensation or at that time controvert the liability to pay compensation
under this Act.

[50 FR 399, Jan. 3, 1985]

§ 702.232   Payments without an award; when; how
paid.

top

The first installment of compensation shall become due by the
fourteenth (14th) day after the employer has been notified, through the
designated official or by any other means described in §702.211 et
seq., or has actual knowledge of the injury or death. All compensation
due on that fourteenth (14th) day shall be paid then and appropriate
compensation due thereafter must be paid in semi-monthly installments,
unless the district director determines otherwise.

[50 FR 399, Jan. 3, 1985]

§ 702.233   Penalty for failure to pay without an
award.

top

If any installment of compensation payable without an award is not paid
within 14 days after it becomes due, there shall be added to such unpaid
installment an amount equal to 10 per centum thereof which shall be paid
at the same time as, but in addition to, such installment unless the
employer files notice of controversion in accordance with §702.261, or
unless such nonpayment is excused by the district director after a showing
by the employer that owing to conditions over which he had no control such
installment could not be paid within the period prescribed for the
payment.

§ 702.234   Report by employer of commencement and
suspension of payments.

top

Immediately upon making the first payment of compensation, and upon the
suspension of payments once begun, the employer shall notify the district
director having jurisdiction over the place where the injury or death
occurred of the commencement or suspension of payments, as the case may
be.

§ 702.235   Report by employer of final payment of
compensation.

top

(a) Within 16 days after the final payment of compensation has been
made, the employer, the insurance carrier, or where the employer is
self-insured, the employer shall notify the district director on a form
prescribed by the Secretary, stating that such final payment has been
made, the total amount of compensation paid, the name and address of the
person(s) to whom payments were made, the date of the injury or death and
the name of the injured or deceased employee, and the inclusive dates
during which compensation was paid.

(b) A “final payment of compensation” for the purpose of applying the
penalty provision of §702.236 shall be deemed any one of the
following:

(1) The last payment of compensation made in accordance with a
compensation order awarding disability or death benefits, issued by either
a district director or an administrative law judge;

(2) The payment of an agreed settlement approved under section 8(i) (A)
or (B), of the Act, 33 U.S.C. 908(i);

(3) The last payment made pursuant to an agreement reached by the
parties through informal proceedings;

(4) Any other payment of compensation which anticipates no further
payments under the Act.
(Approved by the Office of Management and
Budget under control number 1215–0024)

(Pub. L. No. 96–511)

[42 FR 45302, Sept. 9, 1977, as amended at 49 FR 18294, Apr. 30, 1984;
50 FR 399, Jan. 3, 1985]

§ 702.236   Penalty for failure to report
termination of payments.

top

Any employer failing to notify the district director that the final
payment of compensation has been made as required by §702.235 shall be
assessed a civil penalty in the amount of $100.00. Provided, however,
that for any violation occurring on or after November 17, 1997 the
civil penalty will be $110.00. The district director has the authority and
responsibility for assessing a civil penalty under this section.

[62 FR 53956, Oct. 17, 1997]

Agreed Settlements

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§ 702.241   Definitions and supplementary
information.

top

(a) As used hereinafter, the term adjudicator shall mean
district director or administrative law judge (ALJ).

(b) If a settlement application is submitted to an adjudicator and the
case is pending at the Office of Administrative Law Judges, the Benefits
Review Board, or any Federal circuit court of appeals, the parties may
request that the case be remanded to the adjudicator for consideration of
the application. The thirty day period as described in paragraph (f) of
this section begins when the remanded case is received by the
adjudicator.

(c) If a settlement application is first submitted to an ALJ, the
thirty day period mentioned in paragraph (f) of this section does not
begin until five days before the date the formal hearing is set. This rule
does not preclude the parties from submitting the application at any other
time such as (1) after the case is referred for hearing, (2) at the
hearing, or (3) after the hearing but before the ALJ issues a decision and
order. Where a case is pending before the ALJ but not set for a hearing,
the parties may request the case be remanded to the district director for
consideration of the settlement.

(d) A settlement agreement between parties represented by counsel,
which is deemed approved when not disapproved within thirty days, as
described in paragraph (f) of this section, shall be considered to have
been filed in the office of the district director on the thirtieth day for
purposes of sections 14 and 21 of the Act, 33 U.S.C. 914 and 921.

(e) A fee for representation which is included in an agreement that is
approved in the manner described in paragraph (d) of this section, shall
also be considered approved within the meaning of section 28(e) of the
Act, 33 U.S.C. 928(e).

(f) The thirty day period for consideration of a settlement agreement
shall be calculated from the day after receipt unless the parties are
advised otherwise by the adjudicator. (See §702.243(b)). If the last day
of this period is a holiday or occurs during a weekend, the next business
day shall be considered the thirtieth day.

(g) An agreement among the parties to settle a claim is limited to the
rights of the parties and to claims then in existence; settlement of
disability compensation or medical benefits shall not be a settlement of
survivor benefits nor shall the settlement affect, in any way, the right
of survivors to file a claim for survivor's benefits.

(h) For purposes of this section and §702.243 the term counsel
means any attorney admitted to the bar of any State, territory or the
District of Columbia.

[50 FR 399, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, 1986]

§ 702.242   Information necessary for a complete
settlement application.

top

(a) The settlement application shall be a self-sufficient document
which can be evaluated without further reference to the administrative
file. The application shall be in the form of a stipulation signed by all
parties and shall contain a brief summary of the facts of the case to
include: a description of the incident, a description of the nature of the
injury to include the degree of impairment and/or disability, a
description of the medical care rendered to date of settlement, and a
summary of compensation paid and the compensation rate or, where benefits
have not been paid, the claimant's average weekly wage.

(b) The settlement application shall contain the following:

(1) A full description of the terms of the settlement which clearly
indicates, where appropriate, the amounts to be paid for compensation,
medical benefits, survivor benefits and representative's fees which shall
be itemized as required by §702.132.

(2) The reason for the settlement, and the issues which are in dispute,
if any.

(3) The claimant's date of birth and, in death claims, the names and
birth dates of all dependents.

(4) Information on whether or not the claimant is working or is capable
of working. This should include, but not be limited to, a description of
the claimant's educational background and work history, as well as other
factors which could impact, either favorably or unfavorably, on future
employability.

(5) A current medical report which fully describes any injury related
impairment as well as any unrelated conditions. This report shall indicate
whether maximum medical improvement has been reached and whether further
disability or medical treatment is anticipated. If the claimant has
already reached maximum medical improvement, a medical report prepared at
the time the employee's condition stabilized will satisfy the requirement
for a current medical report. A medical report need not be submitted with
agreements to settle survivor benefits unless the circumstances warrant
it.

(6) A statement explaining how the settlement amount is considered
adequate.

(7) If the settlement application covers medical benefits an
itemization of the amount paid for medical expenses by year for the three
years prior to the date of the application. An estimate of the claimant's
need for future medical treatment as well as an estimate of the cost of
such medical treatment shall also be submitted which indicates the
inflation factor and/or the discount rate used, if any. The adjudicator
may waive these requirements for good cause.

(8) Information on any collateral source available for the payment of
medical expenses.
(Approved by the Office of Management and Budget
under control number 1215–0160)

[50 FR 399, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, 1986]

§ 702.243   Settlement application; how submitted,
how approved, how disapproved, criteria.

top

(a) When the parties to a claim for compensation, including survivor
benefits and medical benefits, agree to a settlement they shall submit a
complete application to the adjudicator. The application shall contain all
the information outlined in §702.242 and shall be sent by certified mail,
return receipt requested or submitted in person, or by any other delivery
service with proof of delivery to the adjudicator. Failure to submit a
complete application shall toll the thirty day period mentioned in section
8(i) of the Act, 33 U.S.C. 908(i), until a complete application is
received.

(b) The adjudicator shall consider the settlement application within
thirty days and either approve or disapprove the application. The
liability of an employer/insurance carrier is not discharged until the
settlement is specifically approved by a compensation order issued by the
adjudicator. However, if the parties are represented by counsel, the
settlement shall be deemed approved unless specifically disapproved within
thirty days after receipt of a complete application. This thirty day
period does not begin until all the information described in §702.242 has
been submitted. The adjudicator shall examine the settlement application
within thirty days and shall immediately serve on all parties notice of
any deficiency. This notice shall also indicate that the thirty day period
will not commence until the deficiency is corrected.

(c) If the adjudicator disapproves a settlement application, the
adjudicator shall serve on all parties a written statement or order
containing the reasons for disapproval. This statement shall be served by
certified mail within thirty days of receipt of a complete application (as
described in §702.242.) if the parties are represented by counsel. If the
disapproval was made by a district director, any party to the settlement
may request a hearing before an ALJ as provided in sections 8 and 19 of
the Act, 33 U.S.C. 908 and 919, or an amended application may be submitted
to the district director. If, following the hearing, the ALJ disapproves
the settlement, the parties may: (1) Submit a new application, (2) file an
appeal with the Benefits Review Board as provided in section 21 of the
Act, 33 U.S.C. 921, or (3) proceed with a hearing on the merits of the
claim. If the application is initially disapproved by an ALJ, the parties
may (1) submit a new application or (2) proceed with a hearing on the
merits of the claim.

(d) The parties may submit a settlement application solely for
compensation, or solely for medical benefits or for compensation and
medical benefits combined.

(e) If either portion of a combined compensation and medical benefits
settlement application is disapproved the entire application is
disapproved unless the parties indicate on the face of the application
that they agree to settle either portion independently.

(f) When presented with a settlement, the adjudicator shall review the
application and determine whether, considering all of the circumstances,
including, where appropriate, the probability of success if the case were
formally litigated, the amount is adequate. The criteria for determining
the adequacy of the settlement application shall include, but not be
limited to:

(1) The claimant's age, education and work history;

(2) The degree of the claimant's disability or impairment;

(3) The availability of the type of work the claimant can do;

(4) The cost and necessity of future medical treatment (where the
settlement includes medical benefits).

(g) In cases being paid pursuant to a final compensation order, where
no substantive issues are in dispute, a settlement amount which does not
equal the present value of future compensation payments commuted, computed
at the discount rate specified below, shall be considered inadequate
unless the parties to the settlement show that the amount is adequate. The
probability of the death of the beneficiary before the expiration of the
period during which he or she is entitled to compensation shall be
determined according to the most current United States Life Table, as
developed by the United States Department of Health and Human Services,
which shall be updated from time to time. The discount rate shall be equal
to the coupon issue yield equivalent (as determined by the Secretary of
the Treasury) of the average accepted auction price for the last auction
of 52 weeks U.S. Treasury Bills settled immediately prior to the date of
the submission of the settlement application.

[50 FR 399, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, 1986; 60 FR
51348, Oct. 2, 1995]

Controverted Claims

top

§ 702.251   Employer's controversion of the right
to compensation.

top

Where the employer controverts the right to compensation after notice
or knowledge of the injury or death, or after receipt of a written claim,
he shall give notice thereof, stating the reasons for controverting the
right to compensation, using the form prescribed by the Director. Such
notice, or answer to the claim, shall be filed with the district director
within 14 days from the date the employer receives notice or has knowledge
of the injury or death. The original notice shall be sent to the district
director having jurisdiction, and a copy thereof shall be given or mailed
to the claimant.
(Approved by the Office of Management and Budget under
control number 1215–0023)

(Pub. L. No. 96–511)

[38 FR 26861, Sept. 26, 1973, as amended at 49 FR 18294, Apr. 30,
1984]

§ 702.252   Action by district director upon
receipt of notice of controversion.

top

Upon receiving the employer's notice of controversion, the district
director shall forthwith commence proceedings for the adjudication of the
claim in accordance with the procedures set forth in subpart C of this
part.

Contested Claims

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§ 702.261   Claimant's contest of actions taken by
employer or carrier with respect to the claim.

top

Where the claimant contests an action by the employer or carrier
reducing, suspending, or terminating benefits, including medical care, he
should immediately notify the office of the district director having
jurisdiction, in person or in writing, and set forth the facts pertinent
to his complaint.

§ 702.262   Action by district director upon
receipt of notice of contest.

top

Upon receipt of the claimant's notice of contest, the district director
shall forthwith commence proceedings for adjudication of the claim in
accordance with the procedures set forth in subpart C of this part.

Discrimination

top

§ 702.271   Discrimination; against employees who
bring proceedings, prohibition and penalty.

top

(a)(1) No employer or its duly authorized agent may discharge or in any
manner discriminate against an employee as to his/her employment because
that employee: (i) Has claimed or attempted to claim compensation under
this Act; or (ii) has testified or is about to testify in a proceeding
under this Act. To discharge or refuse to employ a person who has been
adjudicated to have filed a fraudulent claim for compensation or otherwise
made a false statement or misrepresentation under section 31(a)(1) of the
Act, 33 U.S.C. 931(a)(1), is not a violation of this section.

(2) Any employer who violates this section shall be liable to a penalty
of not less that $1,000.00 or more than $5,000.00 to be paid (by the
employer alone, and not by a carrier) to the district director for deposit
in the special fund described in section 44 of the Act, 33 U.S.C. 944; and
shall restore the employee to his or her employment along with all wages
lost due to the discrimination unless the employee has ceased to be
qualified to perform the duties of employment. Provided however,
that for any violation occurring on or after November 17, 1997 the
employer shall be liable to a penalty of not less than $1,100.00 or more
than $5,500.00.

(b) When a district director receives a complaint from an employee
alleging discrimination as defined under section 49, he or she shall
notify the employer, and within five working days, initiate specific
inquiry to determine all the facts and circumstances pertaining thereto.
This may be accomplished by interviewing the employee, employer
representatives and other parties who may have information about the
matter. Interviews may be conducted by written correspondence, telephone
or personal interview.

(c) If circumstances warrant, the district director may also conduct an
informal conference on the issue as described in §§702.312 through
702.314.

(d) Any employee discriminated against is entitled to be restored to
his employment and to be compensated by the employer for any loss of wages
arising out of such discrimination provided that the employee is qualified
to perform the duties of the employment. If it is determined that the
employee has been discriminated against, the district director shall also
determine whether the employee is qualified to perform the duties of the
employment. The district director may use medical evidence submitted by
the parties or he may arrange to have the employee examined by a physician
selected by the district director. The cost of the medical examination
arranged for by the district director may be charged to the special fund
established by section 44, 33 U.S.C. 944.

[42 FR 45302, Sept. 9, 1977, as amended at 50 FR 400, Jan. 3, 1985; 62
FR 53956, Oct. 17, 1997]

§ 702.272   Informal recommendation by district
director.

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(a) If the district director determines that the employee has been
discharged or suffered discrimination and is able to resume his or her
duties, the district director will recommend that the employer reinstate
the employee and/or make such restitution as is indicated by the
circumstances of the case, including compensation for any wage loss
suffered as the result of the discharge or discrimination. The district
director may also assess the employer an appropriate penalty, as
determined under authority vested in the district director by the Act. If
the district director determines that no violation occurred he shall
notify the partries of his findings and the reasons for recommending that
the complaint be denied. If the employer and employee accept the district
director's recommendation, it will be incorporated in an order and mailed
to each party within 10 days.

(b) If the parties do not agree to the recommendation, the district
director shall, within 10 days after receipt of the rejection, prepare a
memorandum summarizing the disagreement, mail a copy to all interested
parties, and shall within 14 days thereafter refer the case to the Office
of the Chief Administrative Law Judge for hearing pursuant to
§702.317.

[42 FR 45302, Sept. 9, 1977]

§ 702.273   Adjudication by Office of the Chief
Administrative Law Judge.

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The Office of Administrative Law Judges is responsible for final
determinations of all disputed issues connected with the discrimination
complaint, including the amount of penalty to be assessed, and shall
proceed with a formal hearing as described in §§702.331 to 702.394.

[42 FR 45302, Sept. 9, 1977]

§ 702.274   Employer's refusal to pay
penalty.

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In the event the employer refuses to pay the penalty assessed, the
district director shall refer the complete administrative file to the
Associate Director, Division of Longshore and Harbor Workers'
Compensation, for subsequent transmittal to the Associate Solicitor for
Employee Benefits, with the request that appropriate legal action be taken
to recover the penalty.

[42 FR 45302, Sept. 9, 1977]

Third Party

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§ 702.281   Third party action.

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(a) Every person claiming benefits under this Act (or the
representative) shall promptly notify the employer and the district
director when:

(1) A claim is made that someone other than the employer or person or
persons in its employ, is liable in damages to the claimant because of the
injury or death and identify such party by name and address.

(2) Legal action is instituted by the claimant or the representative
against some person or party other than the employer or a person or
persons in his employ, on the ground that such other person is liable in
damages to the claimant on account of the compensable injury and/or death;
specify the amount of damages claimed and identify the person or party by
name and address.

(3) Any settlement, compromise or any adjudication of such claim has
been effected and report the terms, conditions and amounts of such
resolution of claim.

(b) Where the claim or legal action instituted against a third party
results in a settlement agreement which is for an amount less than the
compensation to which a person would be entitled under this Act, the
person (or the person's representative) must obtain the prior, written
approval of the settlement from the employer and the employer's carrier
before the settlement is executed. Failure to do so relieves the employer
and/or carrier of liability for compensation described in section 33(f) of
Act, 33 U.S.C. 933(f) and for medical benefits otherwise due under section
7 of the Act, 33 U.S.C. 907, regardless of whether the employer or carrier
has made payments of acknowledged entitlement to benefits under the Act.
The approval shall be on a form provided by the Director and filed, within
thirty days after the settlement is entered into, with the district
director who has jurisdiction in the district where the injury
occurred.

[42 FR 45303, Sept. 9, 1977, as amended at 50 FR 400, Jan. 3, 1985; 51
FR 4284, Feb. 3, 1986]

Report of Earnings

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§ 702.285   Report of earnings.

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(a) An employer, carrier or the Director (for those cases being paid
from the Special Fund) may require an employee to whom it is paying
compensation to submit a report on earnings from employment or
self-employment. This report may not be required any more frequently than
semi-annually. The report shall be made on a form prescribed by the
Director and shall include all earnings from employment and
self-employment and the periods for which the earnings apply. The employee
must return the complete report on earnings even where he or she has no
earnings to report.

(b) For these purposes the term “earnings” is defined as all monies
received from any employment and includes but is not limited to wages,
salaries, tips, sales commissions, fees for services provided, piecework
and all revenue received from self-employment even if the business or
enterprise operated at a loss of if the profits were
reinvested.
(Approved by the Office of Management and Budget under
control number 1215–0160)

[50 FR 400, Jan. 3, 1985]

§ 702.286   Report of earnings; forfeiture of
compensation.

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(a) Any employee who fails to submit the report on earnings from
employment or self-employment under §702.285 or, who knowingly and
willingly omits or understates any part of such earnings, shall upon a
determination by the district director forfeit all right to compensation
with respect to any period during which the employee was required to file
such a report. The employee must return the completed report on earnings
(even where he or she reports no earnings) within thirty (30) days of the
date of receipt; this period may be extended for good cause, by the
district director, in determining whether a violation of this requirement
has occurred.

(b) Any employer or carrier who believes that a violation of paragraph
(a) of this section has occurred may file a charge with the district
director. The allegation shall be accompanied by evidence which includes a
copy of the report, with proof of service requesting the information from
the employee and clearly stating the dates for which the employee was
required to report income. Where the employer/carrier is alleging an
omission or understatement of earnings, it shall, in addition, present
evidence of earnings by the employee during that period, including copies
of checks, affidavits from employers who paid the employee earnings,
receipts of income from self-employment or any other evidence showing
earnings not reported or underreported for the period in question. Where
the district director finds the evidence sufficient to support the charge
he or she shall convene an informal conference as described in subpart C
and shall issue a compensation order affiming or denying the charge and
setting forth the amount of compensation for the specified period. If
there is a conflict over any issue relating to this matter any party may
request a formal hearing before an Administrative Law Judge as described
in subpart C.

(c) Compensation forfeited under paragraph (b) of this section, if
already paid, shall be recovered by a deduction from the compensation
payable to the employee if any, on such schedule as determined by the
district director. The district director's discretion in such cases
extends only to rescheduling repayment by crediting future compensation
and not to whether and in what amounts compensation is forfeited. For this
purpose, the district director shall consider the employee's essential
expenses for living, income from whatever source, and assets, including
cash, savings and checking accounts, stocks, bonds, and other
securities.

[50 FR 400, Jan. 3, 1985]

Subpart C—Adjudication Procedures

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General

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§ 702.301   Scope of this subpart.

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The regulations in this subpart govern the adjudication of claims in
which the employer has filed a notice of controversion under §702.251, or
the employee has filed notice of contest under §702.261. In the vast
majority of cases, the problem giving rise to the controversy results from
misunderstandings, clerical or mechanical errors, or mistakes of fact or
law. Such problems seldom require resolution through formal hearings, with
the attendant production of expert witnesses. Accordingly, by §702.311
et seq., the district directors are empowered to amicably and
promptly resolve such problems by informal procedures. Where there is a
genuine dispute of fact or law which cannot be so disposed of informally,
resort must be had to the formal hearing procedures as set forth beginning
at §702.331. Supplementary compensation orders, modifications, and
interlocutory matters are governed by regulations beginning with §702.371.
Thereafter, appeals from compensation orders are discussed beginning with
§702.391 (the regulations of the Benefits Review Board are set forth in
full in part 802 of this title).

Action by District Directors

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§ 702.311   Handling of claims matters by district
directors; informal conferences.

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The district director is empowered to resolve disputes with respect to
claims in a manner designed to protect the rights of the parties and also
to resolve such disputes at the earliest practicable date. This will
generally be accomplished by informal discussions by telephone or by
conferences at the district director's office. Some cases will be handled
by written correspondence. The regulations governing informal conferences
at the district director's office with all parties present are set forth
below. When handling claims by telephone, or at the office with only one
of the parties, the district director and his staff shall make certain
that a full written record be made of the matters discussed and that such
record be placed in the administrative file. When claims are handled by
correspondence, copies of all communications shall constitute the
administrative file.

§ 702.312   Informal conferences; called by and
held before whom.

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Informal conferences shall be called by the district director or his
designee assigned or reassigned the case and held before that same person,
unless such person is absent or unavailable. When so assigned, the
designee shall perform the duties set forth below assigned to the district
director, except that a compenstion order following an agreement shall be
issued only by a person so designated by the Director to perform such
duty.

[42 FR 45303, Sept. 9, 1977]

§ 702.313   Informal conferences; how called; when
called.

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Informal conferences may be called upon not less than 10 days' notice
to the parties, unless the parties agree to meet at an earlier date. The
notice may be given by telephone, but shall be confirmed by use of a
written notice on a form prescribed by the Director. The notice shall
indicate the date, time and place of the conference, and shall also
specify the matters to be discussed. For good cause shown conferences may
be rescheduled. A copy of such notice shall be placed in the
administrative file.

§ 702.314   Informal conferences; how conducted;
where held.

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(a) No stenographic report shall be taken at informal conferences and
no witnesses shall be called. The district director shall guide the
discussion toward the achievement of the purpose of such conference,
recommending courses of action where there are disputed issues, and giving
the parties the benefit of his experience and specialized knowledge in the
field of workmen's compensation.

(b) Conferences generally shall be held at the district director's
office. However, such conferences may be held at any place which, in the
opinion of the district director, will be of greater convenience to the
parties or to their representatives.

§ 702.315   Conclusion of conference; agreement on
all matters with respect to the claim.

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(a) Following an informal conference at which agreement is reached on
all issues, the district director shall (within 10 days after conclusion
of the conference), embody the agreement in a memorandum or within 30 days
issue a formal compensation order, to be filed and mailed in accordance
with §702.349. If either party requests that a formal compensation order
be issued the district director shall, within 30 days of such request,
prepare, file, and serve such order in accordance with §702.349. Where the
problem was of such nature that it was resolved by telephone discussion or
by exchange of written correspondence, the parties shall be notified by
the same means that agreement was reached and the district director shall
prepare a memorandum or order setting forth the terms agreed upon. In
either instance, when the employer or carrier has agreed to pay, reinstate
or increase monetary compensation benefits, or to restore or appropriately
change medical care benefits, such action shall be commenced immediately
upon becoming aware of the agreement, and without awaiting receipt of the
memorandum or the formal compensation order.

(b) Where there are several conferences or discussions, the provisions
of paragraph (a) of this section do not apply until the last conference.
The district director shall, however, prepare and place in his
administrative file a short, succinct memorandum of each preceding
conference or discussion.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 45303, Sept. 9,
1977]

§ 702.316   Conclusion of conference; no agreement
on all matters with respect to the claim.

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When it becomes apparent during the course of the informal conference
that agreement on all issues cannot be reached, the district director
shall bring the conference to a close, shall evaluate all evidence
available to him or her, and after such evaluation shall prepare a
memorandum of conference setting forth all outstanding issues, such facts
or allegations as appear material and his or her recommendations and
rationale for resolution of such issues. Copies of this memorandum shall
then be sent to each of the parties or their representatives, who shall
then have 14 days within which to signify in writing to the district
director whether they agree or disagree with his or her recommendations.
If they agree, the district director shall proceed as in §702.315(a). If
they disagree (Caution: See §702.134), then the district director may
schedule such further conference or conferences as, in his or her opinion,
may bring about agreement; if he or she is satisfied that any further
conference would be unproductive, or if any party has requested a hearing,
the district director shall prepare the case for transfer to the Office of
the Chief Administrative Law Judge (See §702.317, §§702.331–702.351).

[42 FR 42551, Aug. 23, 1977, as amended at 60 FR 51348, Oct. 2,
1995]

§ 702.317   Preparation and transfer of the case
for hearing.

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A case is prepared for transfer in the following manner:

(a) The district director shall furnish each of the parties or their
representatives with a copy of a prehearing statement form.

(b) Each party shall, within 21 days after receipt of such form,
complete it and return it to the district director and serve copies on all
other parties. Extensions of time for good cause may be granted by the
district director.

(c) Upon receipt of the completed forms, the district director, after
checking them for completeness and after any further conferences that, in
his or her opinion, are warranted, shall transmit them to the Office of
the Chief Administrative Law Judge by letter of transmittal together with
all available evidence which the parties intend to submit at the hearing
(exclusive of X-rays, slides and other materials not suitable for mailing
which may be offered into evidence at the time of hearing); the materials
transmitted shall not include any recommendations expressed or memoranda
prepared by the district director pursuant to §702.316.

(d) If the completed pre-hearing statement forms raise new or
additional issues not previously considered by the district director or
indicate that material evidence will be submitted that could reasonably
have been made available to the district director before he or she
prepared the last memorandum of conference, the district director shall
transfer the case to the Office of the Chief Administrative Law Judge only
after having considered such issues or evaluated such evidence or both and
having issued an additional memorandum of conference in conformance with
§702.316.

(e) If a party fails to complete or return his or her pre-hearing
statement form within the time allowed, the district director may, at his
or her discretion, transmit the case without that party's form. However,
such transmittal shall include a statement from the district director
setting forth the circumstanes causing the failure to include the form,
and such party's failure to submit a pre-hearing statement form may,
subject to rebuttal at the formal hearing, be considered by the
administrative law judge, to the extent intransigence is relevant, in
subsequent rulings on motions which may be made in the course of the
formal hearing.
(Approved by the Office of Management and Budget under
control number 1215–0085)

(Pub. L. No. 96–511)

[42 FR 42551, Aug. 23, 1977, as amended at 49 FR 18295, Apr. 30,
1984]

§ 702.318   The record; what constitutes;
nontransferability of the administrative file.

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For the purpose of any further proceedings under the Act, the formal
record of proceedings shall consist of the hearing record made before the
administrative law judge (see §702.344). When transferring the case for
hearing pursuant to §702.317, the district director shall not transfer the
administrative file under any circumstances.

§ 702.319   Obtaining documents from the
administrative file for reintroduction at formal hearings.

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Whenever any party considers any document in the administrative file
essential to any further proceedings under the Act, it is the
responsibility of such party to obtain such document from the district
director and reintroduce it for the record before the administrative law
judge. The type of document that may be obtained shall be limited to
documents previously submitted to the district director, including
documents or forms with respect to notices, claims, controversions,
contests, progress reports, medical services or supplies, etc. The work
products of the district director or his staff shall not be subject to
retrieval. The procedure for obtaining documents shall be for the
requesting party to inform the district director in writing of the
documents he wishes to obtain, specifying them with particularity. Upon
receipt, the district director shall cause copies of the requested
documents to be made and then:

(a) Place the copies in the file together with the letter of request,
and (b) promptly forward the originals to the requesting party. The
handling of multiple requests for the same document shall be within the
discretion of the district director and with the cooperation of the
requesting parties.

Special Fund

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§ 702.321   Procedures for determining
applicability of section 8(f) of the Act.

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(a) Application: filing, service, contents. (1) An employer or
insurance carrier which seeks to invoke the provisions of section 8(f) of
the Act must request limitation of its liability and file, in duplicate,
with the district director a fully documented application. A fully
documented application shall contain the following information: (i) A
specific description of the pre-existing condition relied upon as
constituting an existing permanent partial disability; (ii) the reasons
for believing that the claimant's permanent disability after the injury
would be less were it not for the pre-existing permanent partial
disability or that the death would not have ensued but for that
disability. These reasons must be supported by medical evidence as
specified in paragraph (a)(1)(iv) of this section; (iii) the basis for the
assertion that the pre-existing condition relied upon was manifest in the
employer; and (iv) documentary medical evidence relied upon in support of
the request for section 8(f) relief. This medical evidence shall include,
but not be limited to, a current medical report establishing the extent of
all impairments and the date of maximum medical improvement. If the
claimant has already reached maximum medical improvement, a report
prepared at that time will satisfy the requirement for a current medical
report. If the current disability is total, the medical report must
explain why the disability is not due solely to the second injury. If the
current disability is partial, the medical report must explain why the
disability is not due solely to the second injury and why the resulting
disability is materially and substantially greater than that which would
have resulted from the subsequent injury alone. If the injury is loss of
hearing, the pre-existing hearing loss must be documented by an audiogram
which complies with the requirements of §702.441. If the claim is for
survivor's benefits, the medical report must establish that the death was
not due solely to the second injury. Any other evidence considered
necessary for consideration of the request for section 8(f) relief must be
submitted when requested by the district director or Director.

(2) If claim is being paid by the special fund and the claimant dies,
an employer need not reapply for section 8(f) relief. However, survivor
benefits will not be paid until it has been established that the death was
due to the accepted injury and the eligible survivors have been
identified. The district director will issue a compensation order after a
claim has been filed and entitlement of the survivors has been verified.
Since the employer remains a party in interest to the claim, a
compensation order will not be issued without the agreement of the
employer.

(b) Application: Time for filing. (1) A request for section 8(f)
relief should be made as soon as the permanency of the claimant's
condition becomes known or is an issue in dispute. This could be when
benefits are first paid for permanent disability, or at an informal
conference held to discuss the permanency of the claimant's condition.
Where the claim is for death benefits, the request should be made as soon
as possible after the date of death. Along with the request for section
8(f) relief, the applicant must also submit all the supporting
documentation required by this section, described in paragraph (a), of
this section. Where possible, this documentation should accompany the
request, but may be submitted separately, in which case the district
director shall, at the time of the request, fix a date for submission of
the fully documented application. The date shall be fixed as follows:

(i) Where notice is given to all parties that permanency shall be an
issue at an informal conference, the fully documented application must be
submitted at or before the conference. For these purposes, notice shall
mean when the issues of permanency is noted on the form LS–141, Notice of
Informal Conference. All parties are required to list issue reasonably
anticipated to be discussed at the conference when the initial request for
a conference is made and to notify all parties of additional issues which
arise during the period before the conference is actually held.

(ii) Where the issue of permanency is first raised at the informal
conference and could not have reasonably been anticipated by the parties
prior to the conference, the district director shall adjourn the
conference and establish the date by which the fully documented
application must be submitted and so notify the employer/carrier. The date
shall be set by the district director after reviewing the circumstances of
the case.

(2) At the request of the employer or insurance carrier, and for good
cause, the district director, at his/her discretion, may grant an
extension of the date for submission of the fully documented application.
In fixing the date for submission of the application under circumstances
other than described above or in considering any request for an extension
of the date for submitting the application, the district director shall
consider all the circumstances of the case, including but not limited to:
Whether the claimant is being paid compensation and the hardship to the
claimant of delaying referral of the case to the Office of Administrative
Law Judges (OALJ); the complexity of the issues and the availability of
medical and other evidence to the employer; the length of time the
employer was or should have been aware that permanency is an issue; and,
the reasons listed in support of the request. If the employer/carrier
requested a specific date, the reasons for selection of that date will
also be considered. Neither the date selected for submission of the fully
documented application nor any extension therefrom can go beyond the date
the case is referred to the OALJ for formal hearing.

(3) Where the claimant's condition has not reached maximum medical
improvement and no claim for permanency is raised by the date the case is
referred to the OALJ, an application need not be submitted to the district
director to preserve the employer's right to later seek relief under
section 8(f) of the Act. In all other cases, failure to submit a fully
documented application by the date established by the district director
shall be an absolute defense to the liability of the special fund. This
defense is an affirmative defense which must be raised and pleaded by the
Director. The absolute defense will not be raised where permanency was not
an issue before the district director. In all other cases, where
permanency has been raised, the failure of an employer to submit a timely
and fully documented application for section 8(f) relief shall not prevent
the district director, at his/her discretion, from considering the claim
for compensation and transmitting the case for formal hearing. The failure
of an employer to present a timely and fully documented application for
section 8(f) relief may be excused only where the employer could not have
reasonably anticipated the liability of the special fund prior to the
consideration of the claim by the district director. Relief under section
8(f) is not available to an employer who fails to comply with section
32(a) of the Act, 33 U.S.C. 932(a).

(c) Application: Approval, disapproval. If all the evidence
required by paragraph (a) was submitted with the application for section
8(f) relief and the facts warrant relief under this section, the district
director shall award such relief after concurrence by the Associate
Director, DLHWC, or his or her designee. If the district director or the
Associate Director or his or her designee finds that the facts do not
warrant relief under section 8(f) the district director shall advise the
employer of the grounds for the denial. The application for section 8(f)
relief may then be considered by an administrative law judge. When a case
is transmitted to the Office of Administrative Law Judges the district
director shall also attach a copy of the application for section 8(f)
relief submitted by the employer, and notwithstanding §702.317(c), the
district director's denial of the application.
(Approved by the Office
of Management and Budget under control number 1215–0160)

[51 FR 4285, Feb. 3, 1986]

Formal Hearings

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§ 702.331   Formal hearings; procedure
initiating.

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Formal hearings are initiated by transmitting to the Office of the
Chief Administrative Law Judge the pre-hearing statement forms, the
available evidence which the parties intend to submit at the formal
hearing, and the letter of transmittal from the district director as
provided in §702.316 and §702.317.

[42 FR 42552, Aug. 23, 1977]

§ 702.332   Formal hearings; how
conducted.

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Formal hearings shall be conducted by the administrative law judge
assigned the case by the Office of the Chief Administrative Law Judge in
accordance with the provisions of the Administrative Procedure Act, 5
U.S.C. 554 et seq. All hearings shall be transcribed.

§ 702.333   Formal hearings; parties.

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(a) The necessary parties for a formal hearing are the claimant and the
employer or insurance carrier, and the administrative law judge assigned
the case.

(b) The Solicitor of Labor or his designee may appear and participate
in any formal hearing held pursuant to these regulations on behalf of the
Director as an interested party.

§ 702.334   Formal hearings; representatives of
parties.

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The claimant and the employer or carrier may be represented by persons
of their choice.

§ 702.335   Formal hearings; notice.

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On a form prescribed for this purpose, the Office of the Chief
Administrative Law Judge shall notify the parties (See §702.333) of the
place and time of the formal hearing not less than 30 days in advance
thereof.

[42 FR 42552, Aug. 23, 1977]

§ 702.336   Formal hearings; new
issues.

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(a) If, during the course of the formal hearing, the evidence presented
warrants consideration of an issue or issues not previously considered,
the hearing may be expanded to include the new issue. If in the opinion of
the administrative law judge the new issue requires additional time for
preparation, the parties shall be given a reasonable time within which to
prepare for it. If the new issue arises from evidence that has not been
considered by the district director, and such evidence is likely to
resolve the case without the need for a formal hearing, the administrative
law judge may remand the case to the district director for his or her
evaluation and recommendation pursuant to, §702.316.

(b) At any time prior to the filing of the compensation order in the
case, the administrative law judge may in his discretion, upon the
application of a party or upon his own motion, give notice that he will
consider any new issue. The parties shall be given not less than 10 days'
notice of the hearing on such new issue. The parties may stipulate that
the issue may be heard at an earlier time and shall proceed to a hearing
on the new issue in the same manner as on an issue initially
considered.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 42552, Aug. 23,
1977]

§ 702.337   Formal hearings; change of time or
place for hearings; postponements.

top

(a) Except for good cause shown, hearings shall be held at convenient
locations not more than 75 miles from the claimant's residence.

(b) Once a formal hearing has been scheduled, continuances shall not be
granted except in cases of extreme hardship or where attendance of a party
or his or her representative is mandated at a previously scheduled
judicial proceeding. Unless the ground for the request arises thereafter,
requests for continuances must be received by the Chief Administrative Law
Judge at least 10 days before the scheduled hearing date, must be served
upon the other parties and must specify the extreme hardship or previously
scheduled judicial proceeding claimed.

(c) The Chief Administrative Law Judge or the administrative law judge
assigned to the case may change the time and place of the hearing, or
temporarily adjourn a hearing, on his own motion or for good cause shown
by a party. The parties shall be given not less than 10 days' notice of
the new time and place of the hearing, unless they agree to such change
without notice.

[42 FR 42552, Aug. 23, 1977]

§ 702.338   Formal hearings; general
procedures.

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All hearings shall be attended by the parties or their representatives
and such other persons as the administrative law judge deems necessary and
proper. The administrative law judge shall inquire fully into the matters
at issue and shall receive in evidence the testimony of witnesses and any
documents which are relevant and material to such matters. If the
administrative law judge believes that there is relevant and material
evidence available which has not been presented at the hearing, he may
adjourn the hearing or, at any time, prior to the filing of the
compensation order, reopen the hearing for the receipt of such evidence.
The order in which evidence and allegations shall be presented and the
procedures at the hearings generally, except as these regulations
otherwise expressly provide, shall be in the discretion of the
administrative law judge and of such nature as to afford the parties a
reasonable opportunity for a fair hearing.

§ 702.339   Formal hearings; evidence.

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In making an investigation or inquiry or conducting a hearing, the
administrative law judge shall not be bound by common law or statutory
rules of evidence or by technical or formal rules of procedure, except as
provided by 5 U.S.C. 554 and these regulations; but may make such
investigation or inquiry or conduct such hearing in such a manner as to
best ascertain the rights of the parties.

§ 702.340   Formal hearings; witnesses.

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(a) Witnesses at the hearing shall testify under oath or affirmation.
The administrative law judge may examine the witnesses and shall allow the
parties or their representatives to do so.

(b) No person shall be required to attend as a witness in any
proceeding before an administrative law judge at a place more than 100
miles from his place of residence, unless his lawful mileage and fees for
one day's attendance shall be paid or tendered to him in advance of the
hearing date.

§ 702.341   Formal hearings; depositions;
interrogatories.

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The testimony of any witness, including any party represented by
counsel, may be taken by deposition or interrogatory according to the
Federal Rules of Civil Procedure as supplemented by local rules of
practice for the Federal district court for the judicial district in which
the case is pending. However, such depositions or interrogatories must be
completed within reasonable times to be fixed by the Chief Administrative
Law Judge or the administrative law judge assigned to the case.

[42 FR 42552, Aug. 23, 1977]

§ 702.342   Formal hearings; witness
fees.

top

Witnesses summoned in a formal hearing before an administrative law
judge or whose depositions are taken shall receive the same fees and
mileage as witnesses in courts of the United States (33 U.S.C. 925).

§ 702.343   Formal hearings; oral argument and
written allegations.

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Any party upon request shall be allowed a reasonable time for
presentation of oral argument and shall be permitted to file a pre-hearing
brief or other written statement of fact or law. A copy of any such
pre-hearing brief or other written statement shall be filed with the Chief
Administrative Law Judge or the administrative law judge assigned to the
case before or during the proceeding at which evidence is submitted to the
administrative law judge and shall be served upon each other party.
Post-hearing briefs will not be permitted except at the request of the
administrative law judge or upon averment on the record of a party that
the case presents a specific novel or difficult legal or factual issue (or
issues) that cannot be adequately addressed in oral summation. When
permitted, any such brief shall be limited to the issue or issues
specified by the administrative law judge or by the party in his or her
averment and shall be due from any party desiring to address such issue or
issues within 15 days of the conclusion of the proceeding at which
evidence is submitted to the administrative law judge. Enlargement of the
time for filing such briefs shall be granted only if the administrative
law judge is persuaded that the brief will be helpful to him or her and
that the enlargement granted will not delay decision of the case.

[42 FR 42552, Aug. 23, 1977]

§ 702.344   Formal hearings; record of
hearing.

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All formal hearings shall be open to the public and shall be
stenographically reported. All evidence upon which the administrative law
judge relies for his final decision shall be contained in the transcript
of testimony either directly or by appropriate reference. All medical
reports, exhibits, and any other pertinent document or record, in whole or
in material part, shall be incorporated into the record either by
reference or as an appendix.

§ 702.345   Formal hearings; consolidated issues;
consolidated cases.

top

(a) When one or more additional issues are raised by the administrative
law judge pursuant to §702.336, such issues may, in the discretion of the
administrative law judge, be consolidated for hearing and decision with
other issues pending before him.

(b) When two or more cases are transferred for formal hearings and have
common questions of law or which arose out of a common accident, the Chief
Administrative Law Judge may consolidate such cases for hearing.

§ 702.346   Formal hearings; waiver of right to
appear.

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If all parties waive their right to appear before the administrative
law judge or to present evidence or argument personally or by
representative, it shall not be necessary for the administrative law judge
to give notice of and conduct an oral hearing. A waiver of the right to
appear and present evidence and allegations as to facts and law shall be
made in writing and filed with the Chief Administrative Law Judge or the
administrative law judge. Where such a waiver has been filed by all
parties, and they do not appear before the administrative law judge
personally or by representative, the administrative law judge shall make a
record of the relevant written evidence submitted by the parties, together
with any pleadings they may submit with respect to the issues in the case.
Such documents shall be considered as all of the evidence in the case and
the decision shall be based on them.

§ 702.347   Formal hearings;
termination.

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(a) Formal hearings are normally terminated upon the conclusion of the
proceeding at which evidence is submitted to the administrative law
judge.

(b) In exceptional cases the Chief Administrative Law Judge or the
administrative law judge assigned to the case may, in his or her
discretion, extend the time for official termination of the hearing.

[42 FR 42552, Aug. 23, 1977]

§ 702.348   Formal hearings; preparation of final
decision and order; content.

top

Within 20 days after the official termination of the hearing as defined
by §702.347, the administrative law judge shall have prepared a final
decision and order, in the form of a compensation order, with respect to
the claim, making an award to the claimant or rejecting the claim. The
compensation order shall contain appropriate findings of facts and
conclusions of law with respect thereto, and shall be concluded with one
or more paragraphs containing the order of the administrative law judge,
his signature, and the date of issuance.

§ 702.349   Formal hearings; filing and mailing of
compensation orders; disposition of transcripts.

top

The administrative law judge shall, within 20 days after the official
termination of the hearing, deliver by mail, or otherwise, to the office
of the district director having original jurisdiction, the transcript of
the hearing, other documents or pleadings filed with him with respect to
the claim, together with his signed compensation order. Upon receipt
thereof, the district director, being the official custodian of all
records with respect to such claims within his jurisdiction, shall
formally date and file the transcript, pleadings, and compensation order
(original) in his office. Such filing shall be accomplished by the close
of business on the next succeeding working day, and the district director
shall, on the same day as the filing was accomplished, send by certified
mail a copy of the compensation order to the parties and to
representatives of the parties, if any. Appended to each such copy shall
be a paragraph entitled “proof of service” containing the certification of
the district director that the copies were mailed on the date stated, to
each of the parties and their representatives, as shown in such
paragraph.

§ 702.350   Finality of compensation
orders.

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Compensation orders shall become effective when filed in the office of
the district director, and unless proceedings for suspension or setting
aside of such orders are instituted within 30 days of such filing, shall
become final at the expiration of the 30th day after such filing, as
provided in section 21 of the Act 33 U.S.C. 921. If any compensation
payable under the terms of such order is not paid within 10 days after it
becomes due, section 14(f) of the Act requires that there be added to such
unpaid compensation an amount equal to 20 percent thereof which shall be
paid at the same time as, but in addition to, such compensation unless
review of the compensation order is had as provided in such section 21 and
an order staying payment has been issued by the Benefits Review Board or
the reviewing court.

§ 702.351   Withdrawal of controversion of issues
set for formal hearing; effect.

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Whenever a party withdraws his controversion of the issues set for a
formal hearing, the administrative law judge shall halt the proceedings
upon receipt from said party of a signed statement to that effect and
forthwith notify the district director who shall then proceed to dispose
of the case as provided for in §702.315.

Interlocutory Matters, Supplementary Orders, and
Modifications

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§ 702.371   Interlocutory matters.

top

Compensation orders shall not be made or filed with respect to
interlocutory matters of a procedural nature arising during the pendency
of a compensation case.

§ 702.372   Supplementary compensation
orders.

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(a) In any case in which the employer or insurance carrier is in
default in the payment of compensation due under any award of
compensation, for a period of 30 days after the compensation is due and
payable, the person to whom such compensation is payable may, within 1
year after such default, apply in writing to the district director for a
supplementary compensation order declaring the amount of the default. Upon
receipt of such application, the district director shall institute
proceedings with respect to such application as if such application were
an original claim for compensation, and the matter shall be disposed of as
provided for in §702.315, or if agreement on the issue is not reached,
then as in §702.316 et seq.

(b) If, after disposition of the application as provided for in
paragraph (a) of this section, a supplementary compensation order is
entered declaring the amount of the default, which amount may be the whole
of the award notwithstanding that only one or more installments is in
default, a copy of such supplementary order shall be forthwith sent by
certified mail to each of the parties and their representatives.
Thereafter, the applicant may obtain and file with the clerk of the
Federal district court for the judicial district where the injury occurred
or the district in which the employed has his principal place of business
or maintains an office, a certified copy of said order and may seek
enforcement thereof as provided for by section 18 of the Act, 33 U.S.C.
918.

§ 702.373   Modification of awards.

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(a) Upon his/her own initiative, or upon application of any party in
interest (including an employer or carrier which has been granted relief
under section 8(f) of the Act, 33 U.S.C. 908(f)), the district director
may review any compensation case (including a case under which payments
are made pursuant to section 44(i) of the Act, 33 U.S.C. 944(i)) in
accordance with the procedure in subpart C of this part, and after such
review of the case under §702.315, or review at formal hearings under the
regulations governing formal hearings in subpart C of this part, file a
new compensation order terminating, continuing, reinstating, increasing or
decreasing such compensation, or awarding compensation. Such new order
shall not affect any compensation previously paid, except that an award
increasing the compensation rate may be made retroactive from the date of
injury, and if any part of the compensation due or to become due is
unpaid, an award decreasing the compensation rate may be made effective
from the date of the injury, and any payment made prior thereto in excess
of such decreased rate shall be deducted from any unpaid compensation, in
such manner and by such method as may be determined by the district
director or the administrative law judge. Settlements cannot be
modified.

(b) Review of a compensation case under this section may be made at any
time prior to 1 year after the date of the last payment of compensation,
whether or not a compensation order has been issued, or at any time prior
to 1 year after the rejection of a claim.

(c) Review of a compensation case may be had only for the reason that
there is a change in conditions or that there was a mistake in the
determination of facts.

(d) If the investigation, described in §702.148(c), discloses a change
in conditions and the employer or insurance carrier intends to pursue
modification of the award of compensation the district director and
claimant shall be notified through an informal conference. At the
conclusion of the informal conference the district director shall issue a
recommendation either for or against the modification. This recommendation
shall also be sent to the Associate Director, Division of Longshoremen's
and Harbor Workers' Compensation (DLHWC) for a determination on whether or
not to participate in the modification proceeding on behalf of the special
fund. Lack of concurrence of the Associate Director, DLHWC or lack of
participation by a representative of the special fund shall not be a bar
to the modification proceeding.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 401, Jan. 3,
1985]

Appeals

top

§ 702.391   Appeals; where.

top

Appeals may be taken to the Benefits Review Board, U.S. Department of
Labor, Washington, D.C. 20210, by filing a notice of appeals with the
office of the district director for the compensation district in which the
decision or order appealed from was filed and by submitting to the Board a
petition for review of such decision or order, in accordance with the
provisions of part 802 of this title 20.

§ 702.392   Appeals; what may be
appealed.

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An appeal raising a substantial question of law or fact may be taken
from a decision with respect to a claim under the Act. Such appeals may be
taken from compensation orders when they have been filed as provided for
in §702.349.

§ 702.393   Appeals; time limitations.

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The notice of appeal (see §702.391) shall be filed with the district
director within 30 days of the filing of the decision or order complained
of, as defined and described in §§802.205 and 802.206 of this title. A
petition for review of the decision or order is required to be filed
within 30 days after receipt of the Board's acknowledgment of the notice
of appeal, as provided in §802.210 of this title.

§ 702.394   Appeals; procedure.

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The procedure for appeals to the Benefits Review Board shall be as
provided by the Board in its Rules of Practice and Procedure, set forth in
part 802 of this title.

Subpart D—Medical Care and Supervision

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§ 702.401   Medical care defined.

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(a) Medical care shall include medical, surgical, and other attendance
or treatment, nursing and hospital services, laboratory, X-ray and other
technical services, medicines, crutches, or other apparatus and prosthetic
devices, and any other medical service or supply, including the reasonable
and necessary cost of travel incident thereto, which is recognized as
appropriate by the medical profession for the care and treatment of the
injury or disease.

(b) An employee may rely on treatment by prayer or spiritual means
alone, in accordance with the tenets and practice of a recognized church
or religious denomination, by an accredited practitioner of such
recognized church or religious denomination, and nursing services rendered
in accordance with such tenets and practice without loss or diminution of
compensation or benefits under the Act. For purposes of this section, a
recognized church or religious denomination shall be any religious
organization: (1) That is recognized by the Social Security Administration
for purposes of reimbursements for treatment under Medicare and Medicaid
or (2) that is recognized by the Internal Revenue Service for purposes of
tax exempt status.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,
1985]

§ 702.402   Employer's duty to furnish;
duration.

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It is the duty of the employer to furnish appropriate medical care (as
defined in §702.401(a)) for the employee's injury, and for such period as
the nature of the injury or the process of recovery may require.

[50 FR 402, Jan. 3, 1985]

§ 702.403   Employee's right to choose physician;
limitations.

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The employee shall have the right to choose his/her attending physician
from among those authorized by the Director, OWCP, to furnish such care
and treatment, except those physicians included on the Secretary's list of
debarred physicians. In determining the choice of a physician,
consideration must be given to availability, the employee's condition and
the method and means of transportation. Generally 25 miles from the place
of injury, or the employee's home is a reasonable distance to travel, but
other pertinent factors must also be taken into consideration.

[50 FR 402, Jan. 3, 1985]

§ 702.404   Physician defined.

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The term physician includes doctors of medicine (MD), surgeons,
podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their
practice as defined by State law. The term 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
shown by X-ray or clinical findings. Physicians defined in this part may
interpret their own X-rays. All physicians in these categories are
authorized by the Director to render medical care under the Act.
Naturopaths, faith healers, and other practitioners of the healing arts
which are not listed herein are not included within the term “physician”
as used in this part.

[42 FR 45303, Sept. 9, 1977]

§ 702.405   Selection of physician;
emergencies.

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Whenever the nature of the injury is such that immediate medical care
is required and the injured employee is unable to select a physician, the
employer shall select a physician. Thereafter the employee may change
physicians when he is able to make a selection. Such changes shall be made
upon obtaining written authorization from the employer or, if consent is
withheld, from the district director. The Director will direct
reimbursement of medical claims for services rendered by physicians or
health care providers who are on the list of those excluded from providing
care under the Act, if such services were rendered in an emergency. (See
§§702.417 and 702.435(b)).

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,
1985]

§ 702.406   Change of physicians;
non-emergencies.

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(a) Whenever the employee has made his initial, free choice of an
attending physician, he may not thereafter change physicians without the
prior written consent of the employer (or carrier) or the district
director. Such consent shall be given in cases where an employee's initial
choice was not of a specialist whose services are necessary for, and
appropriate to, the proper care and treatment of the compensable injury or
disease. In all other cases, consent may be given upon a showing of good
cause for change.

(b) The district director for the appropriate compensation district may
order a change of physicians or hospitals when such a change is found to
be necessary or desirable or where the fees charged exceed those
prevailing within the community for the same or similar services or exceed
the provider's customary charges.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,
1985]

§ 702.407   Supervision of medical
care.

top

The Director, OWCP, through the district directors and their designees,
shall actively supervise the medical care of an injured employee covered
by the Act. Such supervision shall include:

(a) The requirement that periodic reports on the medical care being
rendered be filed in the office of the district director, the frequency
thereof being determined by order of the district director or sound
judgment of the attending physician as the nature of the injury may
dictate;

(b) The determination of the necessity, character and sufficiency of
any medical care furnished or to be furnished the employee, including
whether the charges made by any medical care provider exceed those
permitted under the Act;

(c) The determination of whether a change of physicians, hospitals or
other persons or locales providing treatment should be made or is
necessary;

(d) The further evaluation of medical questions arising in any case
under the Act, with respect to the nature and extent of the covered
injury, and the medical care required therefor.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,
1985]

§ 702.408   Evaluation of medical questions;
impartial specialists.

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In any case in which medical questions arise with respect to the
appropriate diagnosis, extent, effect of, appropriate treatment, and the
duration of any such care or treatment, for an injury covered by the Act,
the Director, OWCP, through the district directors having jurisdiction,
shall have the power to evaluate such questions by appointing one or more
especially qualified physicians to examine the employee, or in the case of
death to make such inquiry as may be appropriate to the facts and
circumstances of the case. The physician or physicians, including
appropriate consultants, should report their findings with respect to the
questions raised as expeditiously as possible. Upon receipt of such
report, action appropriate therewith shall be taken.

§ 702.409   Evaluation of medical questions;
results disputed.

top

Any party who is dissatisfied with such report may request a review or
reexamination of the employee by one or more different physicians employed
by or selected by the Director, and such review or reexamination shall be
granted unless it is found that it is clearly unwarranted. Such review
shall be completed within 2 weeks from the date ordered unless it is
impossible to complete the review and render a report thereon within such
time period. Upon receipt of the report of this additional review and
reexamination, such action as may be appropriate shall forthwith be
taken.

§ 702.410   Duties of employees with respect to
special examinations.

top

(a) For any special examination required of an employee by §§702.408
and 702.409, the employee shall submit to such examination at such place
as is designated in the order to report, but the place so selected shall
be reasonably convenient for the employee.

(b) Where an employee fails to submit to an examination required by
§§702.408 and 702.409, the district director or administrative law judge
may order that no compensation otherwise payable shall be paid for any
period during which the employee refuses to submit to such examination
unless circumstances justified the refusal.

(c) Where an employee unreasonably refuses to submit to medical or
surgical treatment, or to an examination by a physician selected by the
employer, the district director or administrative law judge may by order
suspend the payment of further compensation during such time as the
refusal continues. Except that refusal to submit to medical treatment
because of adherence to the tenets of a recognized church or religious
denomination as described in §702.401(b) shall not cause the suspension of
compensation.

[42 FR 45303, Sept. 9, 1977, as amended at 50 FR 402, Jan. 3, 1985; 51
FR 4286, Feb. 3, 1986]

§ 702.411   Special examinations; nature of
impartiality of specialists.

top

(a) The special examinations required by §702.408 shall be accomplished
in a manner designed to preclude prejudgment by the impartial examiner. No
physician previously connected with the case shall be present, nor may any
other physician selected by the employer, carrier, or employee be present.
The impartial examiner may be made aware, by any party or by the OWCP, of
the opinions, reports, or conclusions of any prior examining physician
with respect to the nature and extent of the impairment, its cause, or its
effect upon the wage-earning capacity of the injured employee, if the
district director determines that, for good cause, such opinions, reports,
or conclusions shall be made available. Upon request, any party shall be
given a copy of all materials made available to the impartial
examiner.

(b) The impartiality of the specialists shall not be considered to have
been compromised if the district director deems it advisable to, and does,
apprise the specialist by memorandum of those undisputed facts pertaining
to the nature of the employee's employment, of the nature of the injury,
of the post-injury employment activity, if any, and of any other facts
which are not disputed and are deemed pertinent to the type of injury
and/or the type of examination being conducted.

(c) No physician selected to perform impartial examinations shall be,
or shall have been for a period of 2 years prior to the examination, an
employee of an insurance carrier or self-insured employer, or who has
accepted or participated in any fee from an insurance carrier or
self-insured employer, unless the parties in interest agree thereto.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 45303, Sept. 9,
1977]

§ 702.412   Special examinations; costs chargeable
to employer or carrier.

top

(a) The Director or his designee ordering the special examination shall
have the power, in the exercise of his discretion, to charge the cost of
the examination or review to the employer, to the insurance carrier, or to
the special fund established by section 44 of the Act, 33 U.S.C. 944.

(b) The Director or his designee may also order the employer or the
insurance carrier to provide the employee with the services of an
attendant, where the district director considers such services necessary,
because the employee is totally blind, has lost the use of both hands, or
both feet or is paralyzed and unable to walk, or because of other
disability making the employee so helpless as to require constant
attendance in the discretion of the district director. Fees payable for
such services shall be in accord with the provisions of §702.413.

[42 FR 45303, Sept. 9, 1977]

§ 702.413   Fees for medical services; prevailing
community charges.

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All fees charged by medical care providers for persons covered by this
Act shall be limited to such charges for the same or similar care
(including supplies) as prevails in the community in which the medical
care provider is located and shall not exceed the customary charges of the
medical care provider for the same or similar services. Where a dispute
arises concerning the amount of a medical bill, the Director shall
determine the prevailing community rate using the OWCP Medical Fee
Schedule (as described in 20 CFR 10.411) to the extent appropriate, and
where not appropriate, may use other state or federal fee schedules. The
opinion of the Director that a charge by a medical care provider disputed
under the provisions of section 702.414 exceeds the charge which prevails
in the community in which said medical care provider is located shall
constitute sufficient evidence to warrant further proceedings pursuant to
section 702.414 and to permit the Director to direct the claimant to
select another medical provider for care to the claimant.

[60 FR 51348, Oct. 2, 1995]

§ 702.414   Fees for medical services; unresolved
disputes on prevailing charges.

top

(a) The Director may, upon written complaint of an interested party, or
upon the Director's own initiative, investigate any medical care provider
or any fee for medical treatment, services, or supplies that appears to
exceed prevailing community charges for similar treatment, services or
supplies or the provider's customary charges. The OWCP medical fee
schedule (see section 702.413) shall be used by the Director, where
appropriate, to determine the prevailing community charges for a medical
procedure by a physician or hospital (to the extent such procedure is
covered by the OWCP fee schedule). The Director's investigation may
initially be conducted informally through contact of the medical care
provider by the district director. If this informal investigation is
unsuccessful further proceedings may be undertaken. These proceedings may
include, but not be limited to: an informal conference involving all
interested parties; agency interrogatories to the pertinent medical care
provider; and issuance of subpoenas duces tecum for documents having a
bearing on the dispute.

(1) A claim by the provider that the OWCP fee schedule does not
represent the prevailing community rate will be considered only where the
following circumstances are presented:

(i) where the actual procedure performed was incorrectly identified by
medical procedure code;

(ii) that the presence of a severe or concomitant medical condition
made treatment especially difficult;

(iii) the provider possessed unusual qualifications (board
certification in a specialty is not sufficient evidence in itself of
unusual qualifications); or

(iv) the provider or service is not one covered by the OWCP fee
schedule as described by 20 CFR 10.411(d)(1).

(2) The circumstances listed in paragraph (a)(1) of this section are
the only ones which will justify reevaluation of the amount calculated
under the OWCP fee schedule.

(b) The failure of any medical care provider to present any evidence
required by the Director pursuant to this section without good cause shall
not prevent the Director from making findings of fact.

(c) After any proceeding under this section the Director shall make
specific findings on whether the fee exceeded the prevailing community
charges (as established by the OWCP fee schedule, where appropriate) or
the provider's customary charges and provide notice of these findings to
the affected parties.

(d) The Director may suspend any such proceedings if after receipt of
the written complaint the affected parties agree to withdraw the
controversy from agency consideration on the basis that such controversy
has been resolved by the affected parties. Such suspension, however, shall
be at the discretion of the Director.

[51 FR 4286, Feb. 3, 1986, as amended at 60 FR 51348, Oct. 2,
1995]

§ 702.415   Fees for medical services; unresolved
disputes on charges; procedure.

top

After issuance of specific findings of fact and proposed action by the
Director as provided in §702.414 any affected provider employer or other
interested party has the right to seek a hearing pursuant to section 556
of title 5, United States Code. Upon written request for such a hearing,
the matter shall be referred by the District Director to the OALJ for
formal hearing in accordance with the procedures in subpart C of this
part. If no such request for a hearing is filed with the district director
within thirty (30) days the findings issued pursuant to §702.414 shall be
final.

[51 FR 4286, Feb. 3, 1986]

§ 702.416   Fees for medical services; disputes;
hearings; necessary parties.

top

At formal hearings held pursuant to §702.415, the necessary parties
shall be the person whose fee or cost charge is in question and the
Director, or their representatives. The employer or carrier may also be
represented, and other parties, or associations having an interest in the
proceedings, may be heard, in the discretion of the administrative law
judge.

§ 702.417   Fees for medical services; disputes;
effect of adverse decision.

top

If the final decision and order upholds the finding of the Director
that the fee or charge in dispute was not in accordance with prevailing
community charges or the provider's customary charges, the person claiming
such fee or cost charge shall be given thirty (30) days after filing of
such decision and order to make the necessary adjustment. If such person
still refuses to make the required readjustment, such person shall not be
authorized to conduct any further treatments or examinations (if a
physician) or to provide any other services or supplies (if by other than
a physician). Any fee or cost charge subsequently incurred for services
performed or supplies furnished shall not be a reimbursable medical
expense under this subpart. This prohibition shall apply notwithstanding
the fact that the services performed or supplies furnished were in all
other respects necessary and appropriate within the provision of these
regulations. However, the Director may direct reimbursement of medical
claims for services rendered if such services were rendered in an
emergency (see §702.435(b)). At the termination of the proceedings
provided for in this section the district director shall determine whether
further proceedings under §702.432 should be initiated.

[50 FR 403, Jan. 3, 1985]

Medical Procedures

top

§ 702.418   Procedure for requesting medical care;
employee's duty to notify employer.

top

(a) As soon as practicable, but within 30 days after occurrence of an
injury covered by the Act, or within 30 days after an employee becomes
aware, or in the exercise of reasonable diligence should be aware, of the
relationship between an injury or disease and his employment, the injured
employee or someone on his behalf shall give written notice thereof to the
district director having jurisdiction over the place where the injury
occurred and to the employer. If a form has been prescribed for such
purpose it shall be used, if available and practicable under the
circumstances. Notices filed under subpart B of this part, if on the form
prescribed by the Director for such purpose, satisfy the written notice
requirements of this subpart.

(b) In the case of an occupational disease which does not immediately
result in a disability or death, such notice shall be given within one
year after the employee becomes aware, or in the exercise of reasonable
diligence or by reason of medical advice should have been aware, of the
relationship between the employment, the disease, and the death or
disability. Notice shall be given: (1) To the district director in the
compensation district in which the injury or death occurred, and (2) to
the employer.
(Approved by the Office of Management and Budget under
control number 1215–0160)

[50 FR 403, Jan. 3, 1985]

§ 702.419   Action by employer upon acquiring
knowledge or being given notice of injury.

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Whenever an employer acquires knowledge of an employee's injury,
through receipt of a written notice or otherwise, said employer shall
forthwith authorize, in writing, appropriate medical care. If a form is
prescribed for this purpose it shall be used whenever practicable.
Authorization shall also be given in cases where an employee's initial
choice was not of a specialist whose services are necessary for and
appropriate to the proper care and treatment of the compensable injury or
disease. In all other cases, consent may be given upon a showing of good
cause for change.

[50 FR 403, Jan. 3, 1985]

§ 702.420   Issuance of authorization; binding
effect upon insurance carrier.

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The issuance of an authorization for treatment by the employer shall
bind his insurance carrier to furnish and pay for such care and
services.

§ 702.421   Effect of failure to obtain initial
authorization.

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An employee shall not be entitled to recover for medical services and
supplies unless:

(a) The employer shall have refused or neglected a request to furnish
such services and the employee has complied with sections 7 (b) and (c) of
the Act, 33 U.S.C. 907 (b) and (c) and these regulations; or

(b) The nature of the injury required such treatment and services and
the employer or his superintendent or foreman having knowledge of such
injury shall have neglected to provide or authorize same.

[50 FR 403, Jan. 3, 1985]

§ 702.422   Effect of failure to report on medical
care after initial authorization.

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(a) Notwithstanding that medical care is properly obtained in
accordance with these regulations, a finding by the Director that a
medical care provider has failed to comply with the reporting requirements
of the Act shall operate as a mandatory revocation of authorization of
such medical care provider. The effect of a final finding to this effect
operates to release the employer/carrier from liability of the expenses of
such care. In addition to this, when such a finding is made by the
Director, the claimant receiving treatment will be directed by the
district director to seek authorization for medical care from another
source.

(b) For good cause shown, the Director may excuse the failure to comply
with the reporting requirements of the Act and further, may make an award
for the reasonable value of such medical care.

[50 FR 403, Jan. 3, 1985]

Debarment of Physicians and Other Providers of Medical Services and
Suppliers and Claims Representatives

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§ 702.431   Grounds for debarment.

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A physician or health care provider shall be debarred if it is found,
after appropriate investigation as described in §702.414 and proceedings
under §§702.432 and 702.433, that such physician or health care provider
has:

(a) Knowingly and willfully made, or caused to be made, any false
statement or misrepresentation of a material fact for use in a claim for
compensation or claim for reimbursement of medical expenses under this
Act;

(b) Knowingly and willfully submitted, or caused to be submitted, a
bill or request for payment under this Act containing a charge which the
Director finds to be substantially in excess of the charge for the
service, appliance, or supply prevailing within the community or in excess
of the provider's customary charges, unless the Director finds there is
good cause for the bill or request containing the charge;

(c) Knowingly and willfully furnished a service, appliance, or supply
which is determined by the Director to be substantially in excess of the
need of the recipient thereof or to be of a quality which substantially
fails to meet professionally recognized standards;

(d) Been convicted under any criminal statute, without regard to
pending appeal thereof, for fraudulent activities in connection with
federal or state program for which payments are made to physicians or
providers of similar services, appliances, or supplies; or has otherwise
been excluded from participation in such program.

(e) The fact that a physician or health care provider has been
convicted of a crime previously described in (d), or excluded or
suspended, or has resigned in lieu of exclusion or suspension, from
participation in any program as described in (d), shall be a prima facie
finding of fact for purposes of section 7(j)(2) of the Act, 33 U.S.C.
907(j)(2).

[50 FR 404, Jan. 3, 1985]

§ 702.432   Debarment process.

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(a) Pertaining to health care providers. Upon receipt of
information indicating that a physician or health care provider has
engaged in activities enumerated in subparagraphs (a) through (c) of
§702.431, the Director, through the Director's designees, may evaluate the
information (as described in §702.414) to ascertain whether proceedings
should be initiated against the physician or health care provider to
remove authorization to render medical care or service under the Longshore
and Harbor Workers' Compensation Act.

(b) Pertaining to health care providers and claims representatives.
If after appropriate investigation the Director determines that
proceedings should be initiated, written notice thereof sent certified
mail, return receipt requested, shall be provided to the physician, health
care provider or claims representative containing the following:

(1) A concise statement of the grounds upon which debarment will be
based;

(2) A summary of the information upon which the director has relied in
reaching an initial decision that debarment proceedings should be
initiated;

(3) An invitation to the physician, health care provider or claims
representative to: (i) Resign voluntarily from participation in the
program without admitting or denying the allegations presented in the
written notice; or (ii) request a decision on debarment to be based upon
the existing agency record and any other information the physician, health
care provider or claims representative may wish to provide;

(4) A notice of the physician's, health care provider's or claims
representative's right, in the event of an adverse ruling by the Director,
to request a formal hearing before an administrative law judge;

(5) A notice that should the physician, health care provider or claims
representative fail to provide written answer to the written notice
described in this section within thirty (30) days of receipt, the Director
may deem the allegations made therein to be true and may order exclusion
of the physician, health care provider or claims representative without
conducting any further proceedings; and

(6) The name and address of the district director who shall be
responsible for receiving the answer from the physician, health care
provider or claims representative.

(c) Should the physician, health care provider or claims representative
fail to file a written answer to the notice described in this section
within thirty (30) days of receipt thereof, the Director may deem the
allegations made therein to be true and may order debarment of the
physician, health care provider or claims representative.

(d) The physician, health care provider or claims representative may
inspect or request copies of information in the agency records at any time
prior to the Director's decision.

(e) The Director shall issue a decision in writing, and shall send a
copy of the decision to the physician, health care provider or claims
representative by certified mail, return receipt requested. The decision
shall advise the physician, health care provider or claims representative
of the right to request, within thirty (30) days of the date of an adverse
decision, a formal hearing before an administrative law judge under the
procedures set forth herein. The filing of such a request for hearing
within the time specified shall operate to stay the effectiveness of the
decision to debar.

[50 FR 404, Jan. 3, 1985]

§ 702.433   Requests for hearing.

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(a) A request for hearing shall be sent to the district director and
contain a concise notice of the issues on which the physician, health care
provider or claims representative desires to give evidence at the hearing
with identification of witnesses and documents to be submitted at the
hearing.

(b) If a request for hearing is timely received by the district
director, the matter shall be referred to the Chief Administrative Law
Judge who shall assign it for hearing with the assigned administrative law
judge issuing a notice of hearing for the conduct of the hearing. A copy
of the hearing notice shall be served on the physician, health care
provider or claims representative by certified mail, return receipt
requested.

(c) If a request for hearing contains identification of witnesses or
documents not previously considered by the Director, the Director may make
application to the assigned administrative law judge for an offer of proof
from the physician, health care provider or claims representative for the
purpose of discovery prior to hearing. If the offer of proof indicates
injection of new issues or new material evidence not previously considered
by the Director, the Director may request a remand order for purposes of
reconsideration of the decision made pursuant to §702.432 of these
regulations.

(d) The parties may make application for the issuance of subpoenas upon
a showing of good cause therefore to the administrative law judge.

(e) The administrative law judge shall issue a recommended decision
after the termination of the hearing. The recommended decision shall
contain appropriate findings, conclusions and a recommended order and be
forwarded, together with the record of the hearing, to the Administrative
Review Board for a final decision. The recommended decision shall be
served upon all parties to the proceeding.

(f) Based upon a review of the record and the recommended decision of
the administrative law judge, the Administrative Review Board shall issue
a final decision.

[50 FR 404, Jan. 3, 1985, as amended at 55 FR 28606, July 12, 1990; 61
FR 19984, May 3, 1996]

§ 702.434   Judicial review.

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(a) Any physician, health care provider or claims representative, after
any final decision of the Administrative Review Board made after a hearing
to which such person was a party, irrespective of the amount of
controversy, may obtain a review of such decision by a civil action
commenced within sixty (60) days after the mailing to him or her of notice
of such decision, but the pendency of such review shall not operate as a
stay upon the effect of such decision. Such action shall be brought in the
Court of Appeals of the United States for the judicial circuit in which
the plaintiff resides or has his or her principal place of business, or
the Court of Appeals for the District of Columbia pursuant to section
7(j)(4) of the Act, 33 U.S.C. 907(j)(4).

(b) As part of the Administrative Review Board answer, he or she shall
file a certified copy of the transcript of the record of the hearing,
including all evidence submitted in connection therewith.

(c) The findings of fact of the Administrative Review Board, if based
on substantial evidence in the record as a whole, shall be conclusive.

[50 FR 405, Jan. 3, 1985, as amended at 55 FR 28606, July 12, 1990; 61
FR 19984, May 3, 1996]

§ 702.435   Effects of debarment.

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(a) The Director shall give notice of the debarment of a physician,
hospital, or provider of medical support services or supplies to:

(1) All OWCP district offices;

(2) The Health Care Financing Administration;

(3) The State or Local authority responsible for licensing or
certifying the debarred party;

(4) The employers and authorized insurers under the Act by means of an
annual bulletin sent to them by the Director; and

(5) The general public by posting in the district office in the
jurisdiction where the debarred party maintains a place of business.

If a claims representative is debarred, the Director shall give notice
to those groups listed in paragraphs (a) (1), (3), (4), and (5) of this
section.

(b) Notwithstanding any debarment under this subpart, the Director
shall not refuse a claimant reimbursement for any otherwise reimbursable
medical expense if the treatment, service or supply was rendered by
debarred provider in an emergency situation. However, such claimant will
be directed by the Director to select a duly qualified provider upon the
earliest opportunity.

[50 FR 405, Jan. 3, 1985]

§ 702.436   Reinstatement.

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(a) If a physician or health care provider has been debarred or
pursuant to §702.431(d) or if a claims representative has been debarred
pursuant to §702.131(c) (1) or (3) the person debarred will be
automatically reinstated upon notice to the Director that the conviction
or exclusion has been reversed or withdrawn. However, such reinstatement
will not preclude the Director from instituting debarment proceedings
based upon the subject matter involved.

(b) A physician, health care provider or claims representative
otherwise debarred by the Director may apply for reinstatement to
participate in the program by application to the Director after three
years from the date of entry of the order of exclusion. Such application
for reinstatement shall be addressed to the Associate Director for the
Longshore program, and shall contain a statement of the basis of the
application along with any supporting documentation.

(c) The Director may further investigate the merits of the
reinstatement application by requiring special reporting procedures from
the applicant for a probationary period not to exceed six months to be
monitored by the district office where the provider maintains a place of
business.

(d) At the end of aforesaid probationary period, the Director may order
full reinstatement of the physician, health care provider or claims
representative if such reinstatement is clearly consistent with the
program goal to protect itself against fraud and abuse and, further, if
the physician, health care provider or claims representative has given
reasonable assurances that the basis for the debarment will not be
repeated.

[50 FR 405, Jan. 3, 1985]

Hearing Loss Claims

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§ 702.441   Claims for loss of hearing.

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(a) Claims for hearing loss pending on or filed after September 28,
1984 (the date of enactment of Pub. L. 98–426) shall be adjudicated with
respect to the determination of the degree of hearing impairment in
accordance with these regulations.

(b) An audiogram shall be presumptive evidence of the amount of hearing
loss on the date administered if the following requirements are met:

(1) The audiogram was administered by a licensed or certified
audiologist, by a physician certified by the American Board of
Otolaryngology, or by a technician, under an audiologist's or physician's
supervision, certified by the Council of Accreditation on Occupational
Hearing Conservation, or by any other person considered qualified by a
hearing conservation program authorized pursuant to 29 CFR 1910.95(g)(3)
promulgated under the Occupational Safety and Health Act of 1970 (29
U.S.C. 667). Thus, either a professional or trained technician may conduct
audiometric testing. However, to be acceptable under this subsection, a
licensed or certified audiologist or otolaryngologist, as defined, must
ultimately interpret and certify the results of the audiogram. The
accompanying report must set forth the testing standards used and describe
the method of evaluating the hearing loss as well as providing an
evaluation of the reliability of the test results.

(2) The employee was provided the audiogram and a report thereon at the
time it was administered or within thirty (30) days thereafter.

(3) No one produces a contrary audiogram of equal probative value
(meaning one performed using the standards described herein) made at the
same time. “Same time” means within thirty (30) days thereof where noise
exposure continues or within six (6) months where exposure to excessive
noise levels does not continue. Audiometric tests performed prior to the
enactment of Public Law 98–426 will be considered presumptively valid if
the employer complied with the procedures in this section for
administering audiograms.

(c) In determining the amount of pre-employment hearing loss, an
audiogram must be submitted which was performed prior to employment or
within thirty (30) days of the date of the first employment-related noise
exposure. Audiograms performed after December 27, 1984 must comply with
the standards described in paragraph (d) of this section.

(d) In determining the loss of hearing under the Act, the evaluators
shall use the criteria for measuring and calculating hearing impairment as
published and modified from time-to-time by the American Medical
Association in the Guides to the Evaluation of Permanent Impairment,
using the most currently revised edition of this publication. In
addition, the audiometer used for testing the individual's threshold of
hearing must be calibrated according to current American National Standard
Specifications for Audiometers. Audiometer testing procedures required by
hearing conservation programs pursuant to the Occupational Safety and
Health Act of 1970 should be followed (as described at 29 CFR 1910.95 and
appendices).
(Approved by the Office of Management and Budget under
control number 1215–0160)

[50 FR 405, Jan. 3, 1985]

Subpart E—Vocational Rehabilitation

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§ 702.501   Vocational rehabilitation;
objective.

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The objective of vocational rehabilitation is the return of permanently
disabled persons to gainful employment commensurate with their physical or
mental impairments, or both, through a program of reevaluation or
redirection of their abilities, or retraining in another occupation, or
selective job placement assistance.

§ 702.502   Vocational rehabilitation; action by
district directors.

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All injury cases which are likely to result in, or have resulted in,
permanent disability, and which are of a character likely to require
review by a vocational rehabilitation adviser on the staff of the
Director, shall promptly be referred to such adviser by the district
director or his designee having charge of the case. A form has been
prescribed for such purpose and shall be used. Medical data and other
pertinent information shall accompany the referral.
(Approved by the
Office of Management and Budget under control number 1215–0051)

(Pub. L. No. 96–511)

[38 FR 26861, Sept. 26, 1973, as amended at 49 FR 18294, Apr. 30,
1984]

§ 702.503   Vocational rehabilitation; action by
adviser.

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The vocational rehabilitation adviser, upon receipt of the referral,
shall promptly consider the feasibility of a vocational referral or
request for cooperative services from available resources or facilities,
to include counseling, vocational survey, selective job placement
assistance, and retraining. Public or private agencies may be utilized in
arranging necessary vocational rehabilitation services under the Federal
Vocational Rehabilitation Act, 29 U.S.C. 31 et seq.

§ 702.504   Vocational rehabilitation; referrals
to State Employment Agencies.

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Vocational rehabilitation advisers will arrange referral procedures
with State Employment Service units within their assigned geographical
districts for the purpose of securing employment counseling, job
classification, and selective placement assistance. Referrals shall be
made to State Employment Offices based upon the following:

(a) Vocational rehabilitation advisers will screen cases so as to refer
only those disabled employees who are considered to have employment
potential;

(b) Only employees will be referred who have permanent, compensable
disabilities resulting in a significant vocational handicap and loss of
wage earning capacity;

(c) Disabled employees, whose initial referral to former private
employers did not result in a job reassignment or in a job retention,
shall be referred for employment counseling and/or selective placement
unless retraining services consideration is requested;

(d) The vocational rehabilitation advisers shall arrange for employees'
referrals if it is ascertained that they may benefit from registering with
the State Employment Service;

(e) Referrals will be made to appropriate State Employment Offices by
letter, including all necessary information and a request for a report on
the services provided the employee when he registers;

(f) The injured employee shall be advised of available job counseling
services and informed that he is being referred for employment and
selective placement;

(g) A followup shall be made within 60 days on all referrals to assure
uniform reporting by State agencies on cases referred for a vocational
survey.

§ 702.505   Vocational rehabilitation; referrals
to other public and private agencies.

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Referrals to such other public and private agencies providing
assistance to disabled persons such as public welfare agencies, Public
Health Services facilities, social services units of the Veterans
Administration, the Social Security Administration, and other such
agencies, shall be made by the vocational rehabilitation adviser, where
appropriate, on an individual basis when requested by disabled employees.
Such referrals do not provide for a service cost reimbursement by the
Department of Labor.

§ 702.506   Vocational rehabilitation;
training.

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Vocational rehabilitation training shall be planned in anticipation of
a short, realistic, attainable vocational objective terminating in
remunerable employment, and in restoring wage-earning capacity or
increasing it materially. The following procedures shall apply in
arranging for or providing training:

(a) The vocational rehabilitation adviser shall arrange for and develop
all vocational training programs.

(b) Training programs shall be developed to meet the varying needs of
eligible beneficiaries, and may include courses at colleges, technical
schools, training at rehabilitation centers, on-the-job training, or
tutorial courses. The courses shall be pertinent to the occupation for
which the employee is being trained.

(c) Training may be terminated if the injured employee fails to
cooperate with the Department of Labor or with the agency supervising his
course of training. The employee shall be counseled before training is
terminated.

(d) Reports shall be required at periodic intervals on all persons in
approved training programs.

§ 702.507   Vocational rehabilitation; maintenance
allowance.

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(a) An injured employee who, as a result of injury, is or may be
expected to be totally or partially incapacitated for a remunerative
occupation and who, under the direction of the Director is being rendered
fit to engage in a remunerative occupation, shall be paid additional
compensation necessary for this maintenance, not exceeding $25 a week. The
expense shall be paid out of the special fund established in section 44 of
the Act, 33 U.S.C. 944. The maximum maintenance allowance shall not be
provided on an automatic basis, but shall be based on the recommendation
of a State agency that a claimant is unable to meet additional costs by
reason of being in training.

(b) When required by reason of personal illness or hardship, limited
periods of absence from training may be allowed without terminating the
maintenance allowance. A maintenance allowance shall be terminated when it
is shown to the satisfaction of the Director that a trainee is not
complying reasonably with the terms of the training plan or is absenting
himself without good cause from training so as to materially interfere
with the accomplishment of the training objective.

§ 702.508   Vocational rehabilitation;
confidentiality of information.

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The following safeguards will be observed to protect the confidential
character of information released regarding an individual undergoing
rehabilitation:

(a) Information will be released to other agencies from which an
injured employee has requested services only if such agencies have
established regulations assuring that such information will be considered
confidential and will be used only for the purpose for which it is
provided;

(b) Interested persons and agencies have been advised that any
information concerning rehabilitation program employees is to be held
confidential;

(c) A rehabilitation employee's written consent is secured for release
of information regarding disability to a person, agency, or establishment
seeking the information for purposes other than the approved
rehabilitation planning with such employee.

Subpart F—Occupational Disease Which Does Not Immediately Result in
Death or Disability

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Source:   50 FR 406, Jan. 3, 1985,
unless otherwise noted.

§ 702.601   Definitions.

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(a) Time of injury. For purposes of this subpart and with
respect to an occupational disease which does not immediately result in
death or disability, the time of injury shall be deemed to be the date on
which the employee or claimant becomes aware, or in the exercise of
reasonable diligence or by reason of medical advice should have been
aware, of the relationship between the employment, the disease, and the
death or disability.

(b) Disability. With regard to an occupational disease for which
the time of injury, as defined in §702.601(a), occurs after the employee
was retired, disability shall mean permanent impairment as determined
according to the Guides to the Evaluation of Permanent Impairment
which is prepared and modified from time-to-time by the American
Medical Association, using the most currently revised edition of this
publication. If this guide does not evaluate the impairment, other
professionally recognized standards may be utilized. The disability
described in this paragraph shall be limited to permanent partial
disability. For that reason they are not subject to adjustments under
section 10(f) of the Act, 33 U.S.C. 910(f).

(c) Retirement. For purposes of this subpart, retirement shall
mean that the claimant, or decedent in cases involving survivor's
benefits, has voluntarily withdrawn from the workforce and that there is
no realistic expectation that such person will return to the
workforce.

[50 FR 406, Jan. 3, 1985, as amended at 51 FR 4286, Feb. 3, 1986]

§ 702.602   Notice and claims.

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(a) Time for giving notice of injury or death. Refer to
§702.207.

(b) Time for filing of claims. Refer to §702.212.

§ 702.603   Determining the payrate for
compensating occupational disease claims which become manifest after
retirement.

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(a) If the time of injury occurs within the first year after the
employee has retired, the payrate for compensation purposes shall be one
fifty-second part of the employee's average annual earnings during the
fifty-two week period preceding retirement.

(b) If the time of injury occurs more than one year after the employee
has retired the payrate for compensation purposes shall be the national
average weekly wage, determined according to section 6(b)(3) of the Act,
33 U.S.C. 906(b)(3), at the time of injury.

§ 702.604   Determining the amount of compensation
for occupational disease claims which become manifest after
retirement.

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(a) If the claim is for disability benefits and the time of injury
occurs after the employee has retired, compensation shall be
662/3percent of the payrate, as determined under §702.603, times
the disability, as determined according to §702.601(b).

(b) If the claim is for death benefits and the time of injury occurs
after the decedent has retired, compensation shall be the percent
specified in section 9 of the Act, 33 U.S.C. 909, times the payrate
determined according to §702.603. Total weekly death benefits shall not
exceed one fifty-second part of the decedent's average annual earnings
during the fifty-two week period preceding retirement, such benefits shall
be subject to the limitation provided for in section 6(b)(1) of the Act,
33 U.S.C. 906(b)(1).

[50 FR 406, Jan. 3, 1985, as amended at 51 FR 4286, Feb. 3, 1986]

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