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pdfSUBCHAPTER C—ENERGY EMPLOYEES OCCUPATIONAL
ILLNESS COMPENSATION PROGRAM ACT OF 2000
30.103 How does a claimant make sure that
OWCP has the evidence necessary to
process the claim?
PART 30—CLAIMS FOR COMPENSATION UNDER THE ENERGY
EMPLOYEES OCCUPATIONAL ILLNESS
COMPENSATION
PROGRAM ACT OF 2000, AS AMENDED
VERIFICATION OF ALLEGED EMPLOYMENT
30.105 What must DOE do after an employee
or survivor files a claim?
30.106 Can OWCP request employment
verification from other sources?
Subpart A—General Provisions
INTRODUCTION
EVIDENCE AND BURDEN OF PROOF
Sec.
30.0 What are the provisions of EEOICPA, in
general?
30.1 What rules govern the administration
of EEOICPA and this chapter?
30.2 In general, how have the tasks associated with the administration of the
EEOICPA claims process been assigned?
30.3 What do these regulations contain?
30.110 Who is entitled to compensation
under the Act?
30.111 What is the claimant’s responsibility
with respect to burden of proof, production of documents, presumptions, and affidavits?
30.112 What kind of evidence is needed to establish covered employment and how will
that evidence be evaluated?
30.113 What are the requirements for written medical documentation, contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish a compensable medical condition
and how will that evidence be evaluated?
DEFINITIONS
30.5
What are the definitions used in this
part?
INFORMATION IN PROGRAM RECORDS
30.10 Are all OWCP records relating to
claims filed under EEOICPA considered
confidential?
30.11 Who maintains custody and control of
claim records?
30.12 What process is used by a person who
wants to obtain copies of or amend
EEOICPA claim records?
SPECIAL PROCEDURES FOR CERTAIN
RADIOGENIC CANCER CLAIMS
30.115 For those radiogenic cancer claims
that do not seek benefits under Part B of
the Act pursuant to the Special Exposure
Cohort provisions, what will OWCP do
once it determines that an employee contracted cancer?
RIGHTS AND PENALTIES
30.15 May EEOICPA benefits be assigned,
transferred or garnished?
30.16 What penalties may be imposed in connection with a claim under the Act?
30.17 Is a beneficiary who defrauds the government in connection with a claim for
EEOICPA benefits still entitled to those
benefits?
Subpart C—Eligibility Criteria
GENERAL PROVISIONS
30.200
Subpart B—Filing Claims; Evidence and
Burden of Proof; Special Procedures for
Certain Cancer Claims
30.205 What are the criteria for eligibility
for benefits relating to beryllium illnesses covered under Part B?
30.206 How does a claimant prove that the
employee was a ‘‘covered beryllium employee’’ exposed to beryllium dust, particles or vapor in the performance of
duty?
30.207 How does a claimant prove a diagnosis of a beryllium disease covered
under Part B?
FILING CLAIMS FOR BENEFITS UNDER
EEOICPA
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What is the scope of this subpart?
ELIGIBILITY CRITERIA FOR CLAIMS RELATING
TO COVERED BERYLLIUM ILLNESS UNDER
PART B OF EEOICPA
30.100 In general, how does an employee file
an initial claim for benefits?
30.101 In general, how is a survivor’s claim
filed?
30.102 In general, how does an employee file
a claim for additional impairment or
wage-loss under Part E of EEOICPA?
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Pt. 30
20 CFR Ch. I (4–1–20 Edition)
ELIGIBILITY CRITERIA FOR CLAIMS RELATING
TO RADIOGENIC CANCER UNDER PARTS B AND
E OF EEOICPA
Subpart D—Adjudicatory Process
30.210 What are the criteria for eligibility
for benefits relating to radiogenic cancer?
30.211 How does a claimant establish that
the employee has or had contracted cancer?
30.212 How does a claimant establish that
the employee contracted cancer after beginning employment at a DOE facility,
an atomic weapons employer facility or a
RECA section 5 facility?
30.213 How does a claimant establish that
the radiogenic cancer was at least as
likely as not related to employment at
the DOE facility, the atomic weapons
employer facility, or the RECA section 5
facility?
30.214 How does a claimant establish that
the employee is a member of the Special
Exposure Cohort?
30.215 How does a claimant establish that
the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?
30.300 What administrative process will
OWCP use to decide claims for entitlement, and how can claimants obtain judicial review of final decisions on their
claims?
30.301 May subpoenas be issued for witnesses and documents in connection with
a claim under Part B of EEOICPA?
30.302 Who pays the costs associated with
subpoenas?
30.303 What information may OWCP request
in connection with a claim under Part E
of EEOICPA?
GENERAL PROVISIONS
RECOMMENDED DECISIONS ON CLAIMS
30.305 How does OWCP determine entitlement to EEOICPA compensation?
30.306 What does the recommended decision
contain?
30.307 Can one recommended decision address the entitlement of multiple claimants?
30.308 To whom is the recommended decision sent?
ELIGIBILITY CRITERIA FOR CLAIMS RELATING
TO CHRONIC SILICOSIS UNDER PART B OF
EEOICPA
HEARINGS AND FINAL DECISIONS ON CLAIMS
30.310 What must the claimant do if he or
she objects to the recommended decision
or wants to request a hearing?
30.311 What happens if the claimant does
not object to the recommended decision
or request a hearing within 60 days?
30.312 What will the FAB do if the claimant
objects to the recommended decision but
does not request a hearing?
30.313 How is a review of the written record
conducted?
30.314 How is a hearing conducted?
30.315 May a claimant postpone a hearing?
30.316 How does the FAB issue a final decision on a claim?
30.317 Can the FAB request a further response from the claimant or return a
claim to the district office?
30.318 How will FAB consider objections to
NIOSH’s reconstruction of a radiation
dose, or to OWCP’s calculation of the
recommended probability of causation,
in a Part B claim for radiogenic cancer?
30.319 May a claimant request reconsideration of a final decision of the FAB?
30.220 What are the criteria for eligibility
for benefits relating to chronic silicosis?
30.221 How does a claimant prove exposure
to silica in the performance of duty?
30.222 How does a claimant establish that
the employee has been diagnosed with
chronic silicosis or has sustained a consequential injury, illness, impairment or
disease?
ELIGIBILITY CRITERIA FOR CERTAIN URANIUM
EMPLOYEES UNDER PART B OF EEOICPA
30.225 What are the criteria for eligibility
for benefits under Part B of EEOICPA for
certain uranium employees?
30.226 How does a claimant establish that a
covered uranium employee has sustained
a consequential injury, illness, impairment or disease?
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ELIGIBILITY CRITERIA FOR OTHER CLAIMS
UNDER PART E OF EEOICPA
30.230 What are the criteria necessary to establish that an employee contracted a
covered illness under Part E of
EEOICPA?
30.231 How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that
the employee has been diagnosed with a
covered illness, or sustained an injury,
illness, impairment or disease as a consequence of a covered illness?
REOPENING CLAIMS
30.320 Can a claim be reopened after the
FAB has issued a final decision?
Subpart E—Medical and Related Benefits
MEDICAL TREATMENT AND RELATED ISSUES
30.400 What are the basic rules for obtaining
medical treatment?
30.401 What are the special rules for the
services of chiropractors?
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Office of Workers’ Compensation Programs, Labor
30.402 What are the special rules for the
services of clinical psychologists?
30.403 Will OWCP pay for home health care,
nursing home, and assisted living services?
30.404 Will OWCP pay for transportation to
obtain medical treatment?
30.405 After selecting a treating physician,
may an employee choose to be treated by
another physician instead?
30.406 Are there any exceptions to these
procedures for obtaining medical care?
30.508 What is beryllium sensitivity monitoring?
30.509 Under what circumstances may a survivor claiming under Part E of the Act
choose to receive the benefits that would
otherwise be payable to a covered Part E
employee who is deceased?
OVERPAYMENTS
30.510 How does OWCP notify an individual
of a payment made on a claim?
30.511 What is an ‘‘overpayment’’ for purposes of EEOICPA?
30.512 What does OWCP do when an overpayment is identified?
30.513 Under what circumstances may
OWCP waive recovery of an overpayment?
30.514 If OWCP finds that the recipient of an
overpayment was not at fault, what criteria are used to decide whether to waive
recovery of it?
30.515 Is a recipient responsible for an overpayment that resulted from an error
made by OWCP?
30.516 Under what circumstances would recovery of an overpayment defeat the purpose of the Act?
30.517 Under what circumstances would recovery of an overpayment be against equity and good conscience?
30.518 Can OWCP require the recipient of
the overpayment to submit additional financial information?
30.519 How does OWCP communicate its
final decision concerning recovery of an
overpayment?
30.520 How are overpayments collected?
DIRECTED MEDICAL EXAMINATIONS
30.410 Can OWCP require an employee to be
examined by another physician?
30.411 What happens if the opinion of the
physician selected by OWCP differs from
the opinion of the physician selected by
the employee?
30.412 Who pays for second opinion and referee examinations?
MEDICAL REPORTS
30.415 What are the requirements for medical reports?
30.416 How and when should medical reports
be submitted?
30.417 What additional medical information
may OWCP require to support continuing
payment of benefits?
MEDICAL BILLS
30.420 How should medical bills and reimbursement requests be submitted?
30.421 What are the time frames for submitting bills and reimbursement requests?
30.422 If an employee is only partially reimbursed for a medical expense, must the
provider refund the balance of the
amount paid to the employee?
Subpart G—Special Provisions
REPRESENTATION
Subpart F—Survivors; Payments and
Offsets; Overpayments
30.600 May a claimant designate a representative?
30.601 Who may serve as a representative?
30.602 Who is responsible for paying the representative’s fee?
30.603 Are there any limitations on what
the representative may charge the claimant for his or her services?
SURVIVORS
30.500 What special statutory definitions
apply to survivors under EEOICPA?
30.501 What order of precedence will OWCP
use to determine which survivors are entitled to receive compensation under
EEOICPA?
30.502 When is entitlement for survivors determined for purposes of EEOICPA?
THIRD PARTY LIABILITY
30.605 What rights does the United States
have upon payment of compensation
under EEOICPA?
30.606 Under what circumstances must a recovery of money or other property in
connection with an illness for which benefits are payable under EEOICPA be reported to OWCP?
30.607 How is a structured settlement (that
is, a settlement providing for receipt of
funds over a specified period of time)
treated for purposes of reporting the recovery?
PAYMENT OF CLAIMS AND OFFSET FOR CERTAIN
PAYMENTS
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Pt. 30
30.505 What procedures will OWCP follow
before it pays any compensation?
30.506 To whom and in what manner will
OWCP pay compensation?
30.507 What compensation will be provided
to covered Part B employees who only
establish beryllium sensitivity under
Part B of EEOICPA?
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Pt. 30
20 CFR Ch. I (4–1–20 Edition)
30.608 How does the United States calculate
the amount to which it is subrogated?
30.609 Is a settlement or judgment received
as a result of allegations of medical malpractice in treating an illness covered by
EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to a covered Part B
employee, a covered Part E employee or
an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary
has purchased a recovery that must be
reported to OWCP?
30.611 If a settlement or judgment is received for more than one medical condition, can the amount paid on a single
EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United
States is subrogated?
30.701 How are medical bills to be submitted?
30.702 How should an employee prepare and
submit requests for reimbursement for
medical expenses, transportation costs,
loss of wages, and incidental expenses?
30.703 What are the time limitations on
OWCP’s payment of bills?
MEDICAL FEE SCHEDULE
30.705 What services are covered by the
OWCP fee schedule?
30.706 How are the maximum fees for professional medical services defined?
30.707 How are payments to providers calculated?
30.708 Does the fee schedule apply to every
kind of procedure?
30.709 How are payments for medicinal
drugs determined?
30.710 How are payments for inpatient medical services determined?
30.711 How are payments for outpatient
medical services determined?
30.712 When and how are fees reduced?
30.713 If OWCP reduces a fee, may a provider request reconsideration of the reduction?
30.714 If OWCP reduces a fee, may a provider bill the employee for the balance?
EFFECT OF TORT SUITS AGAINST BERYLLIUM
VENDORS AND ATOMIC WEAPONS EMPLOYERS
30.615 What type of tort suits filed against
beryllium vendors or atomic weapons
employers may disqualify certain claimants from receiving benefits under Part
B of EEOICPA?
30.616 What happens if this type of tort suit
was filed prior to October 30, 2000?
30.617 What happens if this type of tort suit
was filed during the period from October
30, 2000 through December 28, 2001?
30.618 What happens if this type of tort suit
was filed after December 28, 2001?
30.619 Do all the parties to this type of tort
suit have to take these actions?
30.620 How will OWCP ascertain whether a
claimant filed this type of tort suit and
if he or she has been disqualified from receiving any benefits under Part B of
EEOICPA?
EXCLUSION OF PROVIDERS
30.715 What are the grounds for excluding a
provider for payment under this part?
30.716 What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?
30.717 When are OWCP’s exclusion procedures initiated?
30.718 How is a provider notified of OWCP’s
intent to exclude him or her?
30.719 What requirements must the provider’s reply and OWCP’s decision meet?
30.720 How can an excluded provider request
a hearing?
30.721 How are hearings assigned and scheduled?
30.722 How are subpoenas or advisory opinions obtained?
30.723 How will the administrative law
judge conduct the hearing and issue the
recommended decision?
30.724 How does a recommended decision become final?
30.725 What are the effects of non-automatic
exclusion?
30.726 How can an excluded provider be reinstated?
COORDINATION OF PART E BENEFITS WITH
STATE WORKERS’ COMPENSATION BENEFITS
30.625 What does ‘‘coordination of benefits’’
mean under Part E of EEOICPA?
30.626 How will OWCP coordinate compensation payable under Part E of EEOICPA
with benefits from state workers’ compensation programs?
30.627 Under what circumstances will OWCP
waive the statutory requirement to coordinate these benefits?
Subpart H—Information for Medical
Providers
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MEDICAL RECORDS AND BILLS
Subpart I—Wage-Loss Determinations
Under Part E of EEOICPA
30.700 In general, what responsibilities do
providers have with respect to enrolling
with OWCP, seeking authorization to
provide services, billing, and retaining
medical records?
GENERAL PROVISIONS
30.800 What types of wage-loss are compensable under Part E of EEOICPA?
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Office of Workers’ Compensation Programs, Labor
RATABLE IMPAIRMENTS
30.801 What special definitions does OWCP
use in connection with Part E wage-loss
determinations?
30.910 Will an impairment that cannot be
assigned a numerical percentage using
the AMA’s Guides be included in the impairment rating?
30.911 Does maximum medical improvement
always have to be reached for an impairment to be included in the impairment
rating?
30.912 Can a covered Part E employee receive benefits for additional impairment
following an award of such benefits by
OWCP?
EVIDENCE OF WAGE-LOSS
30.805 What are the criteria for eligibility
for wage-loss benefits under Part E?
30.806 What kind of medical evidence must
the claimant submit to prove that he or
she lost wages due to a covered illness?
30.807 What factual evidence does OWCP use
to determine a covered Part E employee’s average annual wage?
AUTHORITY: 5 U.S.C. 301; 31 U.S.C. 3716 and
3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s–10;
Executive Order 13179, 65 FR 77487, 3 CFR,
2000 Comp., p. 321; Secretary of Labor’s Order
No. 10–2009, 74 FR 58834.
DETERMINATIONS OF AVERAGE ANNUAL WAGE
AND PERCENTAGES OF LOSS
30.810 How will OWCP calculate the average
annual wage of a covered Part E employee?
30.811 How will OWCP calculate the duration and extent of a covered Part E employee’s initial period of compensable
wage-loss?
30.812 May a covered Part E employee claim
for subsequent periods of compensable
wage-loss?
SOURCE: 71 FR 78534, Dec. 29, 2006, unless
otherwise noted.
Subpart A—General Provisions
INTRODUCTION
§ 30.0 What are the provisions of
EEOICPA, in general?
Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended
(EEOICPA or Act), 42 U.S.C. 7384 et seq.,
provides for the payment of compensation benefits to covered Part B employees and, where applicable, survivors of
such employees, of the United States
Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors. Part B
also provides for the payment of supplemental compensation benefits to
other covered Part B employees who
have already been found eligible for
benefits under section 5 of the Radiation Exposure Compensation Act, as
amended (RECA), 42 U.S.C. 2210 note,
and where applicable, survivors of such
persons. Part E of the Act provides for
the payment of compensation benefits
to covered Part E employees and,
where applicable, survivors of such employees. The regulations in this part
describe the rules governing filing,
processing, and paying claims for benefits under both Part B and Part E of
EEOICPA.
(a) Part B of EEOICPA provides for
the payment of either lump-sum monetary compensation for the disability of
a covered Part B employee due to an
occupational illness or for monitoring
SPECIAL RULES FOR CERTAIN SURVIVOR
CLAIMS UNDER PART E OF EEOICPA
30.815 Are there special rules that OWCP
will use to determine the extent of a deceased covered Part E employee’s compensable wage-loss?
Subpart J—Impairment Benefits Under Part
E of EEOICPA
GENERAL PROVISIONS
30.900 Who can receive impairment benefits
under Part E?
30.901 How does OWCP determine the extent
of an employee’s impairment that is due
to a covered illness contracted through
exposure to a toxic substance at a DOE
facility or a RECA section 5 facility, as
appropriate?
30.902 How will OWCP calculate the amount
of the award of impairment benefits that
is payable under Part E?
MEDICAL EVIDENCE OF IMPAIRMENT
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§ 30.0
30.905 How may an impairment evaluation
be obtained?
30.906 Who will pay for an impairment evaluation?
30.907 Can an impairment evaluation obtained by OWCP be challenged prior to
issuance of the recommended decision?
30.908 How will the FAB evaluate new medical evidence submitted to challenge the
impairment determination in the recommended decision?
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§ 30.1
20 CFR Ch. I (4–1–20 Edition)
for beryllium sensitivity, as well as for
medical and related benefits for such
illness. Part B also provides for the
payment of monetary compensation for
the disability of a covered Part B employee to specified survivors if the employee is deceased at the time of payment.
(b) Part E of EEOICPA provides for
the payment of monetary compensation for the established wage-loss and/
or impairment of a covered Part E employee due to a covered illness, and for
medical and related benefits for such
covered illness. Part E also provides for
the payment of monetary compensation for the death (and established
wage-loss, where applicable) of a covered Part E employee to specified survivors if the covered Part E employee
is deceased at the time of payment.
(c) All types of benefits and conditions of eligibility listed in this section
are subject to the provisions of
EEOICPA and this part.
tire claims process is within the exclusive control of OWCP. This means that
all claimants file their claims with
OWCP, and OWCP is responsible for
granting or denying compensation
under the Act (see §§ 30.100 through
30.102). OWCP also provides assistance
to claimants and potential claimants
by providing information regarding eligibility and other program requirements, including information on completing claim forms and the types and
availability of medical testing and diagnostic services related to occupational illnesses under Part B of the Act
and covered illnesses under Part E of
the Act. In addition, OWCP provides an
administrative review process for
claimants who disagree with its recommended and final adverse decisions
on claims of entitlement (see §§ 30.300
through 30.320).
(b) However, HHS has exclusive control of the portion of the claims process under which it provides reconstructed doses for certain radiogenic
cancer claims (see § 30.115), which it
delegated to the National Institute for
Occupational
Safety
and
Health
(NIOSH) in 42 CFR part 82. HHS also
has exclusive control of the process for
designating classes of employees to be
added to the Special Exposure Cohort
under Part B of the Act, and has promulgated regulations governing that
process at 42 CFR part 83. Finally, HHS
has promulgated regulations at 42 CFR
part 81 that set out guidelines that
OWCP follows when it assesses the
compensability
of
an
employee’s
radiogenic cancer (see § 30.213). DOE
and DOJ must, among other things, notify potential claimants and submit
evidence that OWCP deems necessary
for its adjudication of claims under
EEOICPA (see §§ 30.105, 30.112, 30.206,
30.212 and 30.221).
§ 30.1 What rules govern the administration of EEOICPA and this chapter?
In accordance with EEOICPA, Executive Order 13179 and Secretary’s Order
No. 10–2009, the primary responsibility
for administering the Act, except for
those activities assigned to the Secretary of Health and Human Services
(HHS), the Secretary of Energy and the
Attorney General, has been delegated
to the Director of the Office of Workers’ Compensation Programs (OWCP).
Except as otherwise provided by law,
the Director of OWCP and his or her
designees have the exclusive authority
to administer, interpret and enforce
the provisions of the Act.
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[84 FR 3046, Feb. 8, 2019]
§ 30.2 In general, how have the tasks
associated with the administration
of EEOICPA claims process been assigned?
(a) In E.O. 13179, the President assigned the tasks associated with administration of the EEOICPA claims
process among the Secretaries of
Labor, HHS and Energy, and the Attorney General. In light of the fact that
the Secretary of Labor has been assigned primary responsibility for administering EEOICPA, almost the en-
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3046, Feb. 8, 2019]
§ 30.3 What do these regulations contain?
This part 30 sets forth the regulations governing administration of all
claims that are filed with OWCP, except to the extent specified in certain
provisions. Its provisions are intended
to assist persons seeking benefits under
EEOICPA, as well as personnel in the
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Office of Workers’ Compensation Programs, Labor
various federal agencies and DOL who
process claims filed under EEOICPA or
who perform administrative functions
with respect to EEOICPA. The various
subparts of this part contain the following:
(a) Subpart A. The general statutory
and administrative framework for
processing claims under both Parts B
and E of EEOICPA. It contains a statement of purpose and scope, together
with definitions of terms, information
regarding the disclosure of OWCP
records, and a description of rights and
penalties involving EEOICPA claims,
including convictions for fraud.
(b) Subpart B. The rules for filing
claims
for
entitlement
under
EEOICPA. It also addresses general
standards regarding necessary evidence
and the burden of proof, descriptions of
basic forms and special procedures for
certain cancer claims.
(c) Subpart C. The eligibility criteria
for occupational illnesses and covered
illnesses compensable under Parts B
and E of EEOICPA, respectively.
(d) Subpart D. The rules governing
the adjudication process leading to recommended and final decisions on
claims for entitlement filed under
Parts B and E of EEOICPA. It also describes the hearing and reopening processes.
(e) Subpart E. The rules governing
medical care, second opinion and referee medical examinations and impairment evaluations directed by OWCP as
part of its adjudication of entitlement,
and medical reports and records in general. It also addresses the kinds of medical treatment that may be authorized
and how medical bills are paid.
(f) Subpart F. The rules relating to
the payment of monetary compensation available under Parts B and E of
EEOICPA. It includes provisions on
medical monitoring for beryllium sensitivity, on the identification, processing and recovery of overpayments of
compensation, and on the maximum
aggregate amount of compensation
payable under Part E.
(g) Subpart G. The rules concerning
the representation of claimants in connection with the administrative adjudication of claims before OWCP, subrogation of the United States, the effect of tort suits against beryllium
§ 30.5
vendors and atomic weapons employers, and the coordination of benefits
under Part E of EEOICPA with state
workers’ compensation benefits for the
same covered illness.
(h) Subpart H. Information for medical providers. It includes rules for
medical reports, medical bills, and the
OWCP medical fee schedule, as well as
the provisions for exclusion of medical
providers.
(i) Subpart I. The rules relating to the
adjudication of alleged periods of wageloss of covered Part E employees. It
also includes provisions on the use by
OWCP of Social Security Administration earnings information and certain
medical evidence to establish compensable wage-loss.
(j) Subpart J. The rules relating to the
adjudication of alleged permanent impairment due to the exposure of covered Part E employees to toxic substances. It includes provisions relating
to the medical evaluation of ratable
impairments, the rating of progressive
conditions, and qualifications of physicians.
DEFINITIONS
§ 30.5 What are the definitions used in
this part?
(a) Act or EEOICPA means the Energy Employees Occupational Illness
Compensation Program Act of 2000, as
amended (42 U.S.C. 7384 et seq.).
(b) Atomic weapon means any device
utilizing atomic energy, exclusive of
the means for transporting or propelling the device (where such means is a
separable and divisible part of the device), the principle purpose of which is
for use as, or for development of, a
weapon, a weapon prototype, or a
weapon test device.
(c) Atomic weapons employee means:
(1) An individual employed by an
atomic weapons employer during a period when the employer was processing
or producing, for the use by the United
States, material that emitted radiation
and was used in the production of an
atomic weapon, excluding uranium
mining and milling; or
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§ 30.5
20 CFR Ch. I (4–1–20 Edition)
(2)(i) An individual employed at a facility that NIOSH reported had a potential for significant residual contamination outside of the period described in paragraph (c)(1) of this section;
(ii) By the atomic weapons employer
that owned the facility referred to in
paragraph (c)(2)(i) of this section, or a
subsequent owner or operator of such
facility; and
(iii) During a period reported by
NIOSH, in its report dated October 2003
and titled ‘‘Report on Residual Radioactive and Beryllium Contamination at
Atomic Weapons Employer Facilities
and Beryllium Vendor Facilities,’’ or
any update to that report, to have a potential for significant residual radioactive contamination.
(d) Atomic weapons employer means
any entity, other than the United
States, that:
(1) Processed or produced, for use by
the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding
uranium mining and milling; and
(2) Is designated by the Secretary of
Energy as an atomic weapons employer
for purposes of the compensation program.
(e) Atomic weapons employer facility
means any facility, owned by an atomic weapons employer, that:
(1) Is or was used to process or
produce, for use by the United States,
material that emitted radiation and
was used in the production of an atomic weapon, excluding uranium mining
or milling; and
(2) Is designated as such in the list
periodically published in the FEDERAL
REGISTER by DOE.
(f) Attorney General means the Attorney General of the United States or the
United States Department of Justice
(DOJ).
(g) Benefit or Compensation means the
money the Department pays to or on
behalf of either a covered Part B employee under Part B, or a covered Part
E employee under Part E, from the Energy Employees Occupational Illness
Compensation Fund. However, the
term ‘‘compensation’’ used in section
7385f(b) of EEOICPA (restricting entitlement to only one payment of compensation under Part B) means only
the payments specified in section
7384s(a)(1) and in section 7384u(a). Except as used in section 7385f(b), these
two terms also include any other
amounts paid out of the Fund for such
things as medical treatment, monitoring, examinations, services, appliances and supplies as well as for transportation and expenses incident to the
securing of such medical treatment,
monitoring, examinations, services, appliances, and supplies.
(h) Beryllium sensitization or sensitivity
means that the individual has an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.
(i) Beryllium vendor means the specific corporations and named predecessor corporations listed in section
7384l(6) of the Act and any other entities designated as such by DOE on December 27, 2002.
(j) Beryllium vendor facility means a
facility owned and operated by a beryllium vendor.
(k) Chronic silicosis means a non-malignant lung disease if:
(1) The initial occupational exposure
to silica dust preceded the onset of silicosis by at least 10 years; and
(2) A written diagnosis of silicosis is
made by a licensed physician and is accompanied by:
(i) A chest radiograph, interpreted by
an individual certified by NIOSH as a B
reader, classifying the existence of
pneumoconioses of category 1/0 or higher; or
(ii) Results from a computer assisted
tomograph or other imaging technique
that are consistent with silicosis; or
(iii) Lung biopsy findings consistent
with silicosis.
(l) Claim means a written assertion to
OWCP of an individual’s entitlement to
benefits under EEOICPA, submitted in
a manner authorized by this part.
(m) Claimant means the individual
who is alleged to satisfy the criteria
for compensation under the Act.
(n) Compensation fund or fund means
the fund established on the books of
the Treasury for payment of benefits
and compensation under the Act.
(o) Contemporaneous record means any
document created at or around the
time of the event that is recorded in
the document.
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Office of Workers’ Compensation Programs, Labor
(p) Covered beryllium illness means any
of the following:
(1) Beryllium sensitivity as established by an abnormal LPT performed
on either blood or lung lavage cells.
(2) Established chronic beryllium disease (see § 30.207(c)).
(3) Any injury, illness, impairment,
or disability sustained as a consequence of a covered beryllium illness
referred to in paragraphs (o)(1) or (2) of
this section.
(q) Covered Part E employee means,
under Part E of the Act, a Department
of Energy contractor employee or a
RECA section 5 uranium worker who
has been determined by OWCP to have
contracted a covered illness (see paragraph (r) of this section) through exposure at a Department of Energy facility or a RECA section 5 facility, as appropriate.
(r) Covered Part B employee means,
under Part B of the Act, a covered beryllium employee (see § 30.205), a covered employee with cancer (see
§ 30.210(a)), a covered employee with
chronic silicosis (see § 30.220), or a covered uranium employee (see paragraph
(s) of this section).
(s) Covered illness means, under Part
E of the Act relating to exposures at a
DOE facility or a RECA section 5 facility, an illness or death resulting from
exposure to a toxic substance.
(t) Covered uranium employee means,
under Part B of the Act, an individual
who has been determined by DOJ to be
entitled to an award under section 5 of
RECA, whether or not the individual
was the employee or the deceased employee’s survivor.
(u) Current or former employee as defined in 5 U.S.C. 8101(1) as used in
§ 30.205(a)(1) means an individual who
fits within one of the following listed
groups:
(1) A civil officer or employee in any
branch of the Government of the
United States, including an officer or
employee of an instrumentality wholly
owned by the United States;
(2) An individual rendering personal
service to the United States similar to
the service of a civil officer or employee of the United States, without
pay or for nominal pay, when a statute
authorizes the acceptance or use of the
§ 30.5
service, or authorizes payment of travel or other expenses of the individual;
(3) An individual, other than an independent contractor or individual employed by an independent contractor,
employed on the Menominee Indian
Reservation in Wisconsin in operations
conducted under a statute relating to
tribal timber and logging operations on
that reservation;
(4) An individual appointed to a position on the office staff of a former
President; or
(5) An individual selected and serving
as a Federal petit or grand juror.
(v) Department means the United
States Department of Labor (DOL).
(w) Department of Energy or DOE includes the predecessor agencies of DOE
back to the establishment of the Manhattan Engineer District on August 13,
1942.
(x) Department of Energy contractor
employee means any of the following:
(1) An individual who is or was in residence at a DOE facility as a researcher
for one or more periods aggregating at
least 24 months.
(2) An individual who is or was employed at a DOE facility by:
(i) An entity that contracted with
the DOE to provide management and
operating, management and integration, or environmental remediation at
the facility;
(ii) A contractor or subcontractor
that provided services, including construction and maintenance, at the facility; or
(iii) A civilian employee of a state or
Federal government agency if the
agency employing that individual is
found to have entered into a contract
with DOE for the provision of one or
more services it was not statutorily obligated to perform, and DOE compensated the agency for those services.
The delivery or removal of goods from
the premises of a DOE facility does not
constitute a service for the purposes of
determining a worker’s coverage under
this paragraph (x).
(y)(1) Department of Energy facility
means, as determined by the Director
of OWCP, any building, structure, or
premise, including the grounds upon
which such building, structure, or
premise is located:
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§ 30.5
20 CFR Ch. I (4–1–20 Edition)
(i) In which operations are, or have
been, conducted by, or on behalf of, the
DOE (except for buildings, structures,
premises, grounds, or operations covered by E.O. 12344, dated February 1,
1982, pertaining to the Naval Nuclear
Propulsion Program); and
(ii) With regard to which the DOE
has or had:
(A) A proprietary interest; or
(B) Entered into a contract with an
entity to provide management and operation, management and integration,
environmental remediation services,
construction, or maintenance services.
(2) DOL has adopted the determinations of the Department of Energy regarding Department of Energy facilities that were contained in the list of
facilities published in the FEDERAL
REGISTER on August 23, 2004 (69 FR
51825). DOL will periodically update
this list as it deems appropriate in its
sole discretion by publishing a revised
list of Department of Energy facilities
in the FEDERAL REGISTER.
(z) Disability means, for purposes of
determining entitlement to payment of
Part
B
benefits
under
section
7384s(a)(1) of the Act, having been determined by OWCP to have or have had
established chronic beryllium disease,
cancer, or chronic silicosis.
(aa) Eligible surviving beneficiary
means any individual who is entitled
under sections 7384s(e), 7384u(e), or
7385s–3(c) and (d) of the Act to receive
a payment on behalf of a deceased covered Part B employee or a deceased
covered Part E employee.
(bb) Employee means either a current
or former employee.
(cc) Occupational illness means, under
Part B of the Act, a covered beryllium
illness, cancer sustained in the performance of duty as defined in
§ 30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has
awarded compensation under section 5
of RECA.
(dd) OWCP means the Office of Workers’ Compensation Programs, United
States Department of Labor. One of the
four divisions of OWCP is the Division
of Energy Employees Occupational Illness Compensation.
(ee) Physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners, within the
scope of their practice as defined by
state law. Physician assistants and
nurse practitioners are excluded from
this definition. The services of chiropractors that may be reimbursed are
limited to treatment consisting of
manual manipulation of the spine to
correct a subluxation as demonstrated
by x-ray to exist.
(ff) Qualified physician means any
physician who has not been excluded
under the provisions of subpart H of
this part. Except as otherwise provided
by regulation, a qualified physician
shall be deemed to be designated or approved by OWCP.
(gg) Specified cancer means:
(1) Leukemia (other than chronic
lymphocytic leukemia) provided that
the onset of the disease was at least 2
years after first exposure;
(2) Lung cancer (other than in situ
lung cancer that is discovered during
or after a post-mortem exam);
(3) Bone cancer;
(4) Renal cancers; or
(5) The following diseases, provided
onset was at least 5 years after first exposure:
(i) Multiple myeloma;
(ii) Lymphomas (other than Hodgkin’s disease); and
(iii) Primary cancer of the:
(A) Thyroid;
(B) Male or female breast;
(C) Esophagus;
(D) Stomach;
(E) Pharynx;
(F) Small intestine;
(G) Pancreas;
(H) Bile ducts;
(I) Gall bladder;
(J) Salivary gland;
(K) Urinary bladder;
(L) Brain;
(M) Colon;
(N) Ovary; or
(O) Liver (except if cirrhosis or hepatitis B is indicated).
(6) The specified diseases designated
in this section mean the physiological
condition or conditions that are recognized by the National Cancer Institute
under those names or nomenclature, or
under any previously accepted or commonly used names or nomenclature.
(hh) Survivor means:
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Office of Workers’ Compensation Programs, Labor
(1) For claims under Part B of the
Act, and subject to paragraph (gg)(3) of
this section, a surviving spouse, child,
parent, grandchild and grandparent of
a deceased covered Part B employee.
(2) For claims under Part E of the
Act, and subject to paragraph (gg)(3) of
this section, a surviving spouse and
child of a deceased covered Part E employee.
(3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) of this section
do not include any individuals not living as of the time OWCP makes a
lump-sum payment or payments to an
eligible surviving beneficiary or beneficiaries.
(ii) Time of injury is defined as follows:
(1) For an employee’s claim, this
term means:
(i) In regard to a claim arising out of
exposure to beryllium or silica, the last
date on which a covered Part B employee was exposed to such substance
in the performance of duty in accordance with sections 7384n(a) or 7384r(c)
of the Act;
(ii) In regard to a claim arising out of
exposure to radiation under Part B, the
last date on which a covered Part B
employee was exposed to radiation in
the performance of duty in accordance
with section 7384n(b) of the Act or, in
the case of a member of the Special Exposure Cohort, the last date on which
the member of the Special Exposure
Cohort was employed at the Department of Energy facility or the atomic
weapons employer facility at which the
member was exposed to radiation; or
(iii) In regard to a claim arising out
of exposure to a toxic substance, the
last date on which a covered Part E
employee was employed at the Department of Energy facility or RECA section 5 facility, as appropriate, at which
the exposure took place.
(2) For a survivor’s claim, the date of
the employee’s death is the time of injury.
(jj) Time of payment or payment means
the date that a paper check issued by
the Department of the Treasury was
received by the payee or by someone
who was legally able to act for the
payee, or the date the Department of
the Treasury made an Electronic
§ 30.12
Funds Transfer to the payee’s financial
institution.
(kk) Toxic substance means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.
(ll) Workday means a single workshift
whether or not it occurred on more
than one calendar day.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3046, Feb. 8, 2019]
INFORMATION IN PROGRAM RECORDS
§ 30.10 Are all OWCP records relating
to claims filed under EEOICPA considered confidential?
All OWCP records relating to claims
for benefits under EEOICPA are considered confidential and may not be released, inspected, copied or otherwise
disclosed except as provided in the
Freedom of Information Act and the
Privacy Act of 1974.
§ 30.11 Who maintains custody
control of claim records?
All OWCP records relating to claims
for benefits filed under the Act are covered by the Privacy Act system of
records entitled DOL/ESA–49 (Office of
Workers’ Compensation Programs, Energy Employees Occupational Illness
Compensation Program Act File). This
system of records is maintained by and
under the control of OWCP, and, as
such, all records covered by DOL/ESA–
49 are official records of OWCP. The
protection, release, inspection and
copying of records covered by DOL/
ESA–49 shall be accomplished in accordance with the rules, guidelines and
provisions of this part, as well as those
contained in 29 CFR parts 70 and 71,
and with the notice of the system of
records and routine uses published in
the FEDERAL REGISTER. All questions
relating to access, disclosure, and/or
amendment of claims records maintained by OWCP are to be resolved in
accordance with this section.
§ 30.12 What process is used by a person who wants to obtain copies of
or amend EEOICPA claim records?
(a) A claimant seeking copies of his
or her official EEOICPA file should address a request to the District Director
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§ 30.15
20 CFR Ch. I (4–1–20 Edition)
of the OWCP district office having custody of the file.
(b) Any request to amend a record
covered by DOL/ESA–49 should be directed to the district office having custody of the official file.
(c) Any administrative appeal taken
from a denial issued by OWCP under
this section shall be filed with the Solicitor of Labor in accordance with 29
CFR 71.7 and 71.9.
RIGHTS AND PENALTIES
§ 30.15 May EEOICPA benefits be assigned, transferred or garnished?
(a) Pursuant to section 7385f(a) of the
Act, no claim for EEOICPA benefits
may be assigned or transferred.
(b) Provisions of the Social Security
Act (42 U.S.C. 659) and regulations
issued by the Office of Personnel Management at 5 CFR part 581 permit the
garnishment of payments of EEOICPA
monetary benefits to collect overdue
alimony and child support. A request
to garnish a payment for either of
these purposes should be submitted to
the district office that is handling the
EEOICPA claim, and must be accompanied by a copy of the pertinent state
agency or court order.
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§ 30.16 What penalties may be imposed
in connection with a claim under
the Act?
(a) Other statutory provisions make
it a crime to file a false or fraudulent
claim or statement with the federal
government in connection with a claim
under the Act. Included among these
provisions is 18 U.S.C. 1001. Enforcement of criminal provisions that may
apply to claims under the Act is within
the jurisdiction of the Department of
Justice.
(b) In addition, administrative proceedings may be initiated under the
Program Fraud Civil Remedies Act of
1986 (PFCRA), 31 U.S.C. 3801 et seq., to
impose civil penalties and assessments
against persons or entities who make,
submit or present, or cause to be made,
submitted or presented, false, fictitious
or fraudulent claims or written statements to OWCP in connection with a
claim under EEOICPA. The Department’s
regulations
implementing
PFCRA are found at 29 CFR part 22.
§ 30.17 Is a beneficiary who defrauds
the government in connection with
a claim for EEOICPA benefits still
entitled to those benefits?
When a beneficiary either pleads
guilty to or is found guilty on either
federal or state criminal charges of defrauding the federal or a state government in connection with a claim for
benefits under the Act or any other
federal or state workers’ compensation
law, the beneficiary forfeits (effective
the date either the guilty plea is accepted or a verdict of guilty is returned
after trial) any entitlement to any further benefits for any injury, illness or
death covered by this part for which
the time of injury was on or before the
date of such guilty plea or verdict. Any
subsequent change in or recurrence of
the beneficiary’s medical condition
does not affect termination of entitlement under this section.
Subpart B—Filing Claims; Evidence and Burden of Proof;
Special Procedures for Certain Cancer Claims
FILING CLAIMS FOR BENEFITS UNDER
EEOICPA
§ 30.100 In general, how does an employee file an initial claim for benefits?
(a)
To
claim
benefits
under
EEOICPA, an employee must file a
claim in writing with OWCP. Form EE–
1 should be used for this purpose, but
any written communication that requests benefits under EEOICPA will be
considered a claim. It will, however, be
necessary for an employee to submit a
Form EE–1 for OWCP to fully develop
the claim. Copies of Form EE–1 may be
obtained from OWCP or on the internet
at
http://www.dol.gov/owcp/energy/
index.htm. The employee must sign the
written claim that is filed with OWCP,
but another person may present the
claim to OWCP on the employee’s behalf.
(b) The employee may choose, at his
or her own option, to file for benefits
for only certain conditions that are potentially compensable under the Act
(e.g., the employee may not want to
claim for an occupational illness or a
covered illness for which a payment
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Office of Workers’ Compensation Programs, Labor
has been received that would necessitate an offset of EEOICPA benefits
under the provisions of § 30.505(b) of
these regulations). The employee may
withdraw his or her claim by so requesting in writing to OWCP at any
time before OWCP determines his or
her eligibility for benefits.
(c) Except as provided in paragraph
(d) of this section, a claim is considered to be ‘‘filed’’ on the date that the
employee mails his or her claim to
OWCP, as determined by postmark or
other carrier’s date marking, or on the
date that the claim is received by
OWCP, whichever is the earliest determinable date. However, in no event will
a claim under Part B of EEOICPA be
considered to be ‘‘filed’’ earlier than
July 31, 2001, nor will a claim under
Part E of EEOICPA be considered to be
‘‘filed’’ earlier than October 30, 2000.
(1) The employee shall affirm that
the information provided on the Form
EE–1 is true, and must inform OWCP of
any subsequent changes to that information.
(2) Except for a covered uranium employee filing a claim under Part B of
the Act, the employee is responsible for
submitting with his or her claim, or arranging for the submission of, medical
evidence to OWCP that establishes that
he or she sustained an occupational illness and/or a covered illness. This required medical evidence is described in
§ 30.114 and does not refer to mere recitations of symptoms the employee experienced that the employee believes
indicate that he or she sustained an occupational illness or a covered illness.
(d) For those claims under Part E of
EEOICPA that were originally filed
with DOE as claims for assistance
under former section 7385o of EEOICPA
(which was repealed on October 28,
2004), a claim is considered to be
‘‘filed’’ on the date that the employee
mailed his or her claim to DOE, as determined by postmark or other carrier’s date marking, or on the date that
the claim was received by DOE, whichever is the earliest determinable date.
However, in no event will a claim referred to in this paragraph be considered to be ‘‘filed’’ earlier than October
30, 2000.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3047, Feb. 8, 2019]
§ 30.101
§ 30.101 In general, how is a survivor’s
claim filed?
(a) A survivor of an employee must
file a claim for compensation in writing with OWCP. Form EE–2 should be
used for this purpose, but any written
communication that requests survivor
benefits under the Act will be considered a claim. It will, however, be necessary for a survivor to submit a Form
EE–2 for OWCP to fully develop the
claim. Copies of Form EE–2 may be obtained from OWCP or on the internet
at
http://www.dol.gov/owcp/energy/
index.htm. The survivor must sign the
written claim that is filed with OWCP,
but another person may present the
claim to OWCP on the survivor’s behalf. Although only one survivor needs
to file a claim under this section to initiate the development process, OWCP
will distribute any monetary benefits
payable on the claim among all eligible
surviving beneficiaries who have filed
claims with OWCP.
(b) A survivor may choose, at his or
her own option, to file for benefits for
only certain conditions that are potentially compensable under the Act (e.g.,
the survivor may not want to claim for
an occupational illness or a covered illness for which a payment has been received that would necessitate an offset
of EEOICPA benefits under the provisions of § 30.505(b) of these regulations).
The survivor may withdraw his or her
claim by so requesting in writing to
OWCP at any time before OWCP determines his or her eligibility for benefits.
(c) A survivor must be alive to receive any payment under EEOICPA;
there is no vested right to such payment.
(d) Except as provided in paragraph
(e) of this section, a survivor’s claim is
considered to be ‘‘filed’’ on the date
that the survivor mails his or her
claim to OWCP, as determined by postmark or other carrier’s date marking,
or the date that the claim is received
by OWCP, whichever is the earliest determinable date. However, in no event
will a survivor’s claim under Part B of
the Act be considered to be ‘‘filed’’ earlier than July 31, 2001, nor will a survivor’s claim under Part E of the Act
be considered to be ‘‘filed’’ earlier than
October 30, 2000.
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§ 30.102
20 CFR Ch. I (4–1–20 Edition)
(1) The survivor shall affirm that the
information provided on the Form EE–
2 is true, and must inform OWCP of
any subsequent changes to that information.
(2) Except for the survivor of a covered uranium employee claiming under
Part B of the Act, the survivor is responsible for submitting, or arranging
for the submission of, evidence to
OWCP that establishes that the employee upon whom the survivor’s claim
is based was eligible for such benefits,
including medical evidence that establishes that the employee sustained an
occupational illness or a covered illness. This required medical evidence is
described in § 30.114 and does not refer
to mere recitations by the survivor of
symptoms the employee experienced
that the survivor believes indicate that
the employee sustained an occupational illness or a covered illness.
(e) For those claims under Part E of
EEOICPA that were originally filed
with DOE as claims for assistance
under former section 7385o of EEOICPA
(which was repealed on October 28,
2004), a claim is considered to be
‘‘filed’’ on the date that the survivor
mailed his or her claim to DOE, as determined by postmark or other carrier’s date marking, or on the date that
the claim was received by DOE, whichever is the earliest determinable date.
However, in no event will a claim referred to in this paragraph be considered to be ‘‘filed’’ earlier than October
30, 2000.
(f) A spouse or a child of a deceased
DOE contractor employee or RECA section 5 uranium worker, who is not a
covered spouse or covered child under
Part E, may submit a written request
to OWCP for a determination of whether that deceased DOE contractor employee or RECA section 5 uranium
worker contracted a covered illness
under section 7385s–4(d) of EEOICPA.
(1) Any such request submitted pursuant to paragraph (f) of this section
will not be considered a survivor’s
claim for benefits under Part E of the
Act.
(2) As part of its consideration of any
request submitted pursuant to paragraph (f) of this section, OWCP will
apply the eligibility criteria in subpart
C of this part. However, the adjudica-
tory procedures contained in subpart D
of this part will not apply to OWCP’s
consideration of such a request, and
OWCP’s response to the request will
not constitute a final agency decision
on entitlement to any benefits under
EEOICPA.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3047, Feb. 8, 2019]
§ 30.102 In general, how does an employee file a claim for additional
impairment or wage-loss under
Part E of EEOICPA?
(a) An employee previously awarded
impairment benefits by OWCP may file
a claim for additional impairment benefits. Such claim must be based on an
increase in the employee’s impairment
rating attributable to the covered illness or illnesses from the impairment
rating that formed the basis for the
last award of such benefits by OWCP.
OWCP will only adjudicate claims for
such an increased rating that are filed
at least two years from the date of the
last award of impairment benefits.
However, OWCP will not wait two
years before it will adjudicate a claim
for additional impairment that is based
on an allegation that the employee sustained a new covered illness.
(b) An employee previously awarded
wage-loss benefits by OWCP may be eligible for additional wage-loss benefits
for periods of wage-loss that were not
addressed in a prior claim only if the
employee had not reached his or her
Social Security retirement age at the
time of the prior award. OWCP will adjudicate claims filed on a yearly basis
in connection with each succeeding
calendar year for which qualifying
wage-loss under Part E is alleged, as
well as claims that aggregate calendar
years for which qualifying wage-loss is
alleged.
(c) Employees should use Form EE–10
to claim for additional impairment or
wage-loss benefits under Part E of
EEOICPA.
(1) The employee, or the person filing
the claim on behalf of the employee,
shall affirm that the information provided on Form EE–10 is true, and must
inform OWCP of any subsequent
changes to that information.
(2) The employee is responsible for
submitting with any claim filed under
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Office of Workers’ Compensation Programs, Labor
this section, or arranging for the submission of, factual and medical evidence establishing that he or she experienced another calendar year of qualifying wage-loss, and/or medical evidence establishing that he or she has
an increased minimum impairment
rating, as appropriate.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3047, Feb. 8, 2019]
§ 30.103 How does a claimant make
sure that OWCP has the evidence
necessary to process the claim?
(a) Claims and certain required submissions should be made on forms prescribed by OWCP. Persons submitting
forms shall not modify these forms or
use substitute forms.
Form No.
Title
(1) EE–1 ..
Claim for Benefits Under the Energy Employees
Occupational Illness Compensation Program
Act.
Claim for Survivor Benefits Under the Energy
Employees Occupational Illness Compensation Program Act.
Employment History for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.
Employment History Affidavit for a Claim Under
the Energy Employees Occupational Illness
Compensation Program Act.
(2) EE–2 ..
(3) EE–3 ..
(4) EE–4 ..
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(b) Copies of the forms listed in this
section are available for public inspection at the U.S. Department of Labor,
Office of Workers’ Compensation Programs, Washington, DC 20210. They
may also be obtained from OWCP district offices and on the internet at
http://www.dol.gov/owcp/energy/
index.htm.
§ 30.110
agrees with such history, or that it can
neither concur nor disagree after making a reasonable search of its records
and also making a reasonable effort to
locate pertinent records not already in
its possession.
(b) Claims for additional impairment
or wage-loss benefits under Part E of
the Act described in § 30.102 will not require any verification of employment
by DOE, since OWCP will have made
any required findings on this particular
issue when it adjudicated the employee’s initial claim for benefits.
§ 30.106 Can OWCP request employment
verification
from
other
sources?
(a) For most claims filed under
EEOICPA, DOE has access to sufficient
factual information to enable it to fulfill
its
obligations
described
in
§ 30.105(a). However, in instances where
it lacks such information, DOE may arrange for other entities to provide
OWCP with the information necessary
to verify an employment history submitted as part of a claim. These other
entities may consist of either current
or former DOE contractors and subcontractors, atomic weapons employers, beryllium vendors, or other entities with access to relevant employment information.
(b) On its own initiative, OWCP may
also arrange for entities other than
DOE to perform the employment
verification
duties
described
in
§ 30.105(a).
EVIDENCE AND BURDEN OF PROOF
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3047, Feb. 8, 2019]
§ 30.110 Who is entitled to compensation under the Act?
VERIFICATION OF ALLEGED EMPLOYMENT
(a) Under Part B of EEOICPA, compensation is payable to the following
covered Part B employees, or their survivors:
(1) A ‘‘covered beryllium employee’’
(as described in § 30.205(a)) with a covered beryllium illness (as defined in
§ 30.5(p)) who was exposed to beryllium
in the performance of duty (in accordance with § 30.206).
(2) A ‘‘covered Part B employee with
cancer’’ (as described in § 30.210(a)).
(3) A ‘‘covered Part B employee with
chronic silicosis’’ (as described in
§ 30.220).
§ 30.105 What must DOE do after an
employee or survivor files a claim?
(a) After it receives a claim for benefits described in § 30.100 or § 30.101,
OWCP may request that DOE verify
the employment history provided by
the claimant. Upon receipt of such a
request, DOE will complete Form EE–5
as soon as possible and transmit the
completed form to OWCP. On this
form, DOE will certify either that it
concurs with the employment history
provided by the claimant, that it dis-
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§ 30.111
20 CFR Ch. I (4–1–20 Edition)
(4) A ‘‘covered uranium employee’’
(as defined in § 30.5(t)).
(b) Under Part E of EEOICPA, compensation is payable to a ‘‘covered Part
E employee’’ (as defined in § 30.5(q)), or
his or her survivors.
(c) Any claim that does not meet all
of the criteria for at least one of these
categories, as set forth in the regulations in this part, must be denied.
(d) All claims for benefits under the
Act must comply with the claims procedures and requirements set forth in
subpart B of this part before any payment can be made from the Fund.
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[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3047, Feb. 8, 2019]
§ 30.111 What is the claimant’s responsibility with respect to burden of
proof, production of documents,
presumptions, and affidavits?
(a) Except where otherwise provided
in the Act and these regulations, the
claimant bears the burden of proving
by a preponderance of the evidence the
existence of each and every criterion
necessary to establish eligibility under
any compensable claim category set
forth in § 30.110. Proof by a preponderance of the evidence means that it is
more likely than not that the proposition to be proved is true. Subject to
the exceptions expressly provided in
the Act and the regulations in this
part, the claimant also bears the burden of providing to OWCP all written
medical documentation, contemporaneous records, or other records and
documents necessary to establish any
and all criteria for benefits set forth in
these regulations.
(b) In the event that the claim lacks
required information or supporting
documentation, OWCP will notify the
claimant of the deficiencies and provide him or her an opportunity for correction of the deficiencies.
(c) Written affidavits or declarations,
subject to penalty for perjury, by the
employee, survivor or any other person, will be accepted as evidence of employment history and survivor relationship for purposes of establishing
eligibility and may be relied on in determining whether a claim meets the
requirements of the Act for benefits if,
and only if, such person attests that
due diligence was used to obtain
records in support of the claim, but
that no records exist.
(d) A claimant will not be entitled to
any presumption otherwise provided
for in these regulations if substantial
evidence exists that rebuts the existence of the fact that is the subject of
the presumption. Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. When such evidence exists, the claimant shall be notified and afforded the opportunity to
submit additional written medical documentation or records.
§ 30.112 What kind of evidence is needed to establish covered employment
and how will that evidence be evaluated?
(a) Evidence of covered employment
may include: employment records; pay
stubs; tax returns; Social Security
records; and written affidavits or declarations, subject to penalty of perjury,
by the employee, survivor or any other
person. However, no one document is
required to establish covered employment and a claimant is not required to
submit all of the evidence listed above.
A claimant may submit other evidence
not listed above to establish covered
employment. To be acceptable as evidence, all documents and records must
be legible. OWCP will accept photocopies, certified copies, and original
documents and records.
(b) Pursuant to §§ 30.105 and/or 30.106,
DOE or another entity verifying alleged employment shall certify that it
concurs with the employment information provided by the claimant, that it
disagrees with the information provided by the claimant, or, after a reasonable search of its records and a reasonable effort to locate pertinent
records not already in its possession, it
can neither concur nor disagree with
the information provided by the claimant.
(1) If DOE or another entity certifies
that it concurs with the employment
information provided by the claimant,
then the criterion for covered employment will be established.
(2) If DOE or another entity certifies
that it disagrees with the information
provided by the claimant or that after
a reasonable search of its records and a
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Office of Workers’ Compensation Programs, Labor
reasonable effort to locate pertinent
records not already in its possession it
can neither concur nor disagree with
the information provided by the claimant, OWCP will evaluate the evidence
submitted by the claimant to determine whether the claimant has established covered employment by a preponderance of the evidence. OWCP may
request additional evidence from the
claimant to demonstrate that the
claimant has met the criterion for covered employment. Nothing in this section shall be construed to limit
OWCP’s ability to require additional
documentation.
(3) If the only evidence of covered
employment submitted by the claimant is a written affidavit or declaration
subject to penalty of perjury by the
employee, survivor or any other person, and DOE or another entity either
disagrees with the assertion of covered
employment or cannot concur or disagree with the assertion of covered employment, then OWCP will evaluate the
probative value of the affidavit in conjunction with the other evidence of employment, and may determine that the
claimant has not met his or her burden
of proof under § 30.111.
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[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
§ 30.113 What are the requirements for
written medical documentation,
contemporaneous
records,
and
other records or documents?
(a) All written medical documentation, contemporaneous records, and
other records or documents submitted
by an employee or his or her survivor
to prove any criteria provided for in
these regulations must be legible.
OWCP will accept photocopies, certified copies, and original documents
and records.
(b) To establish eligibility, the employee or his or her survivor may be required to provide, where appropriate,
additional contemporaneous records to
the extent they exist or an authorization to release additional contemporaneous records or a statement by the
custodian(s) of the record(s) certifying
that the requested record(s) no longer
exist. Nothing in this section shall be
construed to limit OWCP’s ability to
require additional documentation.
§ 30.114
(c) If a claimant submits a certified
statement, by a person with knowledge
of the facts, that the medical records
containing a diagnosis and date of diagnosis of a covered medical condition
no longer exist, then OWCP may consider other evidence to establish a diagnosis and date of diagnosis of a covered medical condition. However,
OWCP will evaluate the probative
value of such other evidence to determine whether it is sufficient proof of a
covered medical condition.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
§ 30.114 What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?
(a) Evidence of a compensable medical condition may include: a physician’s report, laboratory reports, hospital records, death certificates, x-rays,
magnetic resonance images or reports,
computer axial tomography or other
imaging reports, lymphocyte proliferation testings, beryllium patch tests,
pulmonary function or exercise testing
results, pathology reports including biopsy results and other medical records.
A claimant is not required to submit
all of the evidence listed in this paragraph. A claimant may submit other
evidence that is not listed in this paragraph to establish a compensable medical condition. Nothing in this section
shall be construed to limit OWCP’s
ability to require additional documentation.
(b) The medical evidence submitted
will be used to establish the diagnosis
and the date of diagnosis of the compensable medical condition.
(1) For covered beryllium illnesses
under Part B of EEOICPA, additional
medical evidence, as set forth in
§ 30.207, is required to establish a beryllium illness.
(2) For chronic silicosis under Part B
of EEOICPA, additional medical evidence, as set forth in § 30.222, is required to establish chronic silicosis.
(3) For covered illnesses under Part E
of EEOICPA, additional medical evidence, as set forth in § 30.232, is required to establish a covered illness.
(i) For impairment benefits under
Part E of EEOICPA, additional medical
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§ 30.115
20 CFR Ch. I (4–1–20 Edition)
evidence, as set forth in § 30.901, is required to establish an impairment that
is the result of a covered illness referred to in § 30.900.
(ii) For wage-loss benefits under Part
E of EEOICPA, additional medical evidence, as set forth in § 30.806, is required to establish wage-loss that is
the result of a covered illness referred
to in § 30.800.
(4) For consequential injuries, illnesses, impairments or diseases, the
claimant must also submit a physician’s fully rationalized medical report
showing a causal relationship between
the resulting injury, illness, impairment or disease and the compensable
medical condition.
(c) OWCP will evaluate the medical
evidence in accordance with recognized
and accepted diagnostic criteria used
by physicians to determine whether
the claimant has established the medical condition for which compensation
is sought in accordance with the requirements of the Act.
however, will not constitute either a
recommended or final decision by
OWCP on the claim.
(2) NIOSH will then reconstruct the
radiation dose of the employee and provide the claimant and OWCP with the
final dose reconstruction report. The
final dose reconstruction record will be
delivered to OWCP with the final dose
reconstruction report and to the claimant upon request.
(b) Following its receipt of the final
dose
reconstruction
report
from
NIOSH, OWCP will resume its adjudication of the cancer claim and consider
whether the claimant has met the eligibility criteria set forth in subpart C
of this part. However, during the period
before it receives a reconstructed dose
from NIOSH, OWCP may continue to
develop other aspects of a claim, to the
extent that it deems such development
to be appropriate.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
Subpart C—Eligibility Criteria
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SPECIAL PROCEDURES FOR CERTAIN
RADIOGENIC CANCER CLAIMS
GENERAL PROVISIONS
§ 30.115 For those radiogenic cancer
claims that do not seek benefits
under Part B of the Act pursuant to
the Special Exposure Cohort provisions, what will OWCP do once it
determines that an employee contracted cancer?
(a) Other than claims seeking benefits under Part E of the Act that have
previously been accepted under section
7384u of the Act or claims previously
accepted under Part B pursuant to the
Special Exposure Cohort provisions,
OWCP will forward the claim package
(including, but not limited to, Forms
EE–1, EE–2, EE–3, EE–4 and EE–5, as
appropriate) to NIOSH for dose reconstruction. At that point in time, development of the claim by OWCP may be
suspended.
(1) This package will include OWCP’s
initial findings in regard to the diagnosis and date of diagnosis of the employee, as well as any employment history compiled by OWCP (including information such as dates and locations
worked, and job titles). The package,
§ 30.200 What is the scope of this subpart?
The regulations in this subpart describe the criteria for eligibility for
benefits for claims under Part B of
EEOICPA relating to covered beryllium illness under sections 7384l, 7384n,
7384s and 7384t of the Act; for cancer
under sections 7384l, 7384n, 7384q and
7384t of the Act; for chronic silicosis
under sections 7384l, 7384r, 7384s and
7384t of the Act; and for claims relating
to covered uranium employees under
sections 7384t and 7384u of the Act.
These regulations also describe the criteria for eligibility for benefits for
claims under Part E of EEOICPA relating to covered illnesses under sections
7385s–4 and 7385s–5 of the Act. This subpart describes the type and extent of
evidence that will be necessary to establish the criteria for eligibility for
compensation for these illnesses.
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Office of Workers’ Compensation Programs, Labor
ELIGIBILITY CRITERIA FOR CLAIMS RELATING TO COVERED BERYLLIUM ILLNESS UNDER PART B OF EEOICPA
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§ 30.205 What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B
of EEOICPA?
To establish eligibility for benefits
under this section, the claimant must
establish the criteria set forth in both
paragraphs (a) and (b) of this section:
(a) The employee is a covered beryllium employee only if the criteria in
paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and (a)(3) of this section,
are established:
(1) The employee is a ‘‘current or
former employee as defined in 5 U.S.C.
8101(1)’’ (see § 30.5(u)) who may have
been exposed to beryllium at a DOE facility or at a facility owned, operated
or occupied by a beryllium vendor; or
(2) The employee is a current or
former civilian employee of:
(i) Any entity that contracted with
the DOE to provide management and
operation, management and integration, or environmental remediation of
a DOE facility; or
(ii) Any contractor or subcontractor
that provided services, including construction and maintenance, at such a
facility; or
(iii) A beryllium vendor, or of a contractor or subcontractor of a beryllium
vendor, during a period when the vendor was engaged in activities related to
the production or processing of beryllium for sale to, or use by, the DOE, including periods during which environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE; and
(3) The civilian employee was exposed to beryllium in the performance
of duty by establishing that he or she
was, during a period when beryllium
dust, particles, or vapor may have been
present at such a facility:
(i) Employed at a DOE facility (as defined in § 30.5(y)); or
(ii) Present at a DOE facility, or at a
facility owned, operated, or occupied
by a beryllium vendor, because of his
or her employment by the United
States, a beryllium vendor, a contractor or subcontractor of a beryllium
vendor, or a contractor or subcon-
§ 30.206
tractor of the DOE. Under this paragraph, exposure to beryllium in the
performance of duty can be established
whether or not the beryllium that may
have been present at such facility was
produced or processed for sale to, or
use by, DOE.
(b) The employee has one of the following:
(1) Beryllium sensitivity as established by an abnormal beryllium LPT
performed on either blood or lung lavage cells.
(2) Established chronic beryllium disease.
(3) Any injury, illness, impairment,
or disability sustained as a consequence of the conditions specified in
paragraphs (b)(1) and (2) of this section.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
§ 30.206 How does a claimant prove
that the employee was a ‘‘covered
beryllium employee’’ exposed to beryllium dust, particles or vapor in
the performance of duty?
(a) Proof of employment or physical
presence at a DOE facility, or a beryllium vendor facility as defined in
§ 30.5(j), because of employment by the
United States, a beryllium vendor, or a
contractor or subcontractor of a beryllium vendor during a period when beryllium dust, particles or vapor may
have been present at such facility, may
be made by the submission of any
trustworthy records that, on their face
or in conjunction with other such
records, establish that the employee
was employed or present at a covered
facility and the time period of such
employment or presence.
(b) If the evidence shows that exposure occurred while the employee was
employed or present at a facility during a time frame that is outside the
relevant time frame indicated for that
facility, OWCP may request that DOE
provide additional information on the
facility. OWCP will determine whether
the evidence of record supports enlarging the relevant time frame for that facility.
(c) If the evidence shows that exposure occurred while the employee was
employed or present at a facility that
would have to be designated by DOE as
a beryllium vendor under section 7384m
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§ 30.207
20 CFR Ch. I (4–1–20 Edition)
of the Act to be a covered facility, and
that the facility has not been so designated, OWCP will deny the claim on
the ground that the facility is not a
covered facility.
(d) Records from the following
sources may be considered as evidence
for purposes of establishing employment or presence at a covered facility:
(1) Records or documents created by
any federal government agency (including verified information submitted
for security clearance), any tribal government, or any state, county, city or
local government office, agency, department, board or other entity, or
other public agency or office.
(2) Records or documents created by
any vendor, processor, or producer of
beryllium or related products designated as a beryllium vendor by the
DOE in accordance with section 7384m
of the Act.
(3) Records or documents created as a
by product of any regularly conducted
business activity or by an entity that
acted as a contractor or subcontractor
to the DOE.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
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§ 30.207 How does a claimant prove a
diagnosis of a beryllium disease
covered under Part B?
(a) Written medical documentation is
required in all cases to prove that the
employee developed a covered beryllium illness. Proof that the employee
developed a covered beryllium illness
must be made by using the procedures
outlined in paragraph (b), (c), (d) or (e)
of this section.
(b) Beryllium sensitivity or sensitization is established with an abnormal
LPT performed on either blood or lung
lavage cells.
(c) Chronic beryllium disease is established in the following manner:
(1) For diagnoses on or after January
1, 1993, beryllium sensitivity (as established in accordance with paragraph (b)
of this section), together with lung pathology consistent with chronic beryllium disease, including the following:
(i) A lung biopsy showing granulomas
or a lymphocytic process consistent
with chronic beryllium disease;
(ii) A computerized axial tomography
scan showing changes consistent with
chronic beryllium disease; or
(iii) Pulmonary function or exercise
testing showing pulmonary deficits
consistent with chronic beryllium disease.
(2) For diagnoses before January 1,
1993, the presence of the following:
(i) Occupational or environmental
history, or epidemiologic evidence of
beryllium exposure; and
(ii) Any three of the following criteria:
(A) Characteristic chest radiographic
(or computed tomography (CT)) abnormalities.
(B) Restrictive or obstructive lung
physiology testing or diffusing lung capacity defect.
(C) Lung pathology consistent with
chronic beryllium disease.
(D) Clinical course consistent with a
chronic respiratory disorder.
(E) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).
(d) OWCP will use the criteria in either paragraph (c)(1) or (2) of this section to establish that the employee developed chronic beryllium disease as
follows:
(1) If the earliest dated medical evidence shows that the employee was either treated for, tested positive for, or
diagnosed with a chronic respiratory
disorder before January 1, 1993, the criteria set forth in paragraph (c)(2) of
this section may be used;
(2) If the earliest dated medical evidence shows that the employee was either treated for, tested positive for, or
diagnosed with a chronic respiratory
disorder on or after January 1, 1993, the
criteria set forth in paragraph (c)(1) of
this section must be used; and
(3) If the employee was treated for a
chronic respiratory disorder before
January 1, 1993 and medical evidence
verifies that such treatment was performed before January 1, 1993, but the
medical evidence is dated on or after
January 1, 1993, the criteria set forth in
paragraph (c)(2) of this section may be
used.
(e) An injury, illness, impairment or
disability sustained as a consequence
of beryllium sensitivity or established
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Office of Workers’ Compensation Programs, Labor
chronic beryllium disease must be established with a fully rationalized
medical report by a physician that
shows the relationship between the injury, illness, impairment or disability
and the beryllium sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness,
impairment or disability manifests
itself after a diagnosis of beryllium
sensitivity or established chronic beryllium disease, nor the belief of the
claimant that the injury, illness, impairment or disability was caused by
the beryllium sensitivity or established chronic beryllium disease, is sufficient in itself to prove a causal relationship.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3048, Feb. 8, 2019]
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ELIGIBILITY CRITERIA FOR CLAIMS RELATING TO RADIOGENIC CANCER UNDER
PARTS B AND E OF EEOICPA
§ 30.210 What are the criteria for eligibility for benefits relating to
radiogenic cancer?
(a) To establish eligibility for benefits for radiogenic cancer under Part B
of EEOICPA, an employee or his or her
survivor must show that:
(1) The employee has been diagnosed
with one of the forms of cancer specified in § 30.5(gg); and
(2) The employee has been diagnosed
with cancer; and
(i)(A) Is/was a civilian DOE employee
who contracted that cancer after beginning employment at a DOE facility;
or
(B) Is/was a civilian DOE contractor
employee who contracted that cancer
after beginning employment at a DOE
facility; or
(C) Is/was a civilian atomic weapons
employee who contracted that cancer
after beginning employment at an
atomic weapons employer facility; and
(ii) The cancer was at least as likely
as not related to the employment at
the DOE facility or atomic weapons
employer facility; or
(3) The employee has been diagnosed
with an injury, illness, impairment or
disease that arose as a consequence of
the accepted cancer.
(b)(1) To establish eligibility for benefits for radiogenic cancer under Part
§ 30.212
E of EEOICPA, an employee or his or
her survivor must show that:
(i) The employee has been diagnosed
with cancer; and
(A) Is/was a civilian DOE contractor
employee or a civilian RECA section 5
uranium worker who contracted that
cancer after beginning employment at
a DOE facility or a RECA section 5 facility; and
(B) The cancer was at least as likely
as not related to exposure to a toxic
substance of a radioactive nature at a
DOE facility or a RECA section 5 facility; and
(C) It is at least as likely as not that
the exposure to such toxic substance(s)
was related to employment at a DOE
facility or a RECA section 5 facility; or
(ii) The employee has been diagnosed
with an injury, illness, impairment or
disease that arose as a consequence of
the accepted cancer.
(2) Eligibility for benefits for
radiogenic cancer under Part E in a
claim that has previously been accepted under Part B pursuant to the Special Exposure Cohort provisions is described in § 30.230(a) of these regulations.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
§ 30.211 How does a claimant establish
that the employee has or had contracted cancer?
A claimant establishes that the employee has or had contracted a specified cancer (as defined in § 30.5(gg)) or
other cancer with medical evidence
that sets forth an explicit diagnosis of
cancer and the date on which that diagnosis was first made.
[84 FR 3049, Feb. 8, 2019]
§ 30.212 How does a claimant establish
that the employee contracted cancer after beginning employment at
a DOE facility, an atomic weapons
employer facility or a RECA section
5 facility?
(a) Proof of employment by the DOE
or a DOE contractor at a DOE facility,
or by an atomic weapons employer at
an atomic weapons employer facility,
or at a RECA section 5 facility, may be
made by the submission of any trustworthy records that, on their face or in
conjunction with other such records,
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§ 30.213
20 CFR Ch. I (4–1–20 Edition)
establish that the employee was so employed and the time period(s) of such
employment.
(b)(1) Except as provided in paragraph (b)(2) of this section, if the evidence shows that exposure occurred
while the employee was employed at a
facility during a time frame that is
outside the relevant period indicated
for that facility, OWCP may request
that DOE provide additional information on the facility. OWCP will determine whether the evidence of record
supports enlarging the relevant period
for that facility.
(2) OWCP may choose not to request
that DOE provide additional information on an atomic weapons employer
facility that NIOSH reported had a potential for significant residual radiation contamination in its report dated
October 2003 and titled ‘‘Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor
Facilities,’’ or any update to that report, if the evidence referred to in
paragraph (a) of this section establishes that the employee was employed
at that facility during a period when
NIOSH reported that it had a potential
for significant residual radiation contamination.
(c) If the evidence shows that exposure occurred while the employee was
employed by an employer that would
have to be designated by DOE as an
atomic weapons employer under section 7384l(4) of the Act to be a covered
employer, and that the employer has
not been so designated, OWCP will
deny the claim on the ground that the
employer is not a covered atomic weapons employer.
(d) Records from the following
sources may be considered as evidence
for purposes of establishing employment or presence at a covered facility:
(1) Records or documents created by
any federal government agency (including verified information submitted
for security clearance), any tribal government, or any state, county, city or
local government office, agency, department, board or other entity, or
other public agency or office.
(2) Records or documents created as a
byproduct of any regularly conducted
business activity or by an entity that
acted as a contractor or subcontractor
to the DOE.
§ 30.213 How does a claimant establish
that the radiogenic cancer was at
least as likely as not related to employment at the DOE facility, the
atomic weapons employer facility,
or the RECA section 5 facility?
(a) HHS, with the advice of the Advisory Board on Radiation and Worker
Health, has issued regulatory guidelines at 42 CFR part 81 that OWCP uses
to determine whether radiogenic cancers claimed under Parts B and E were
at least as likely as not related to employment at a DOE facility, an atomic
weapons employer facility, or a RECA
section 5 facility. Persons should consult HHS’s regulations for information
regarding the factual evidence that
will be considered by OWCP, in addition to the employee’s final dose reconstruction report that will be provided
to OWCP by NIOSH, in making this
particular factual determination.
(b) HHS’s regulations satisfy the
legal requirements in section 7384n(c)
of the Act, which also sets out OWCP’s
obligation to use them in its adjudication of claims for radiogenic cancer
filed under Part B of the Act, and provide the factual basis for OWCP to determine if the ‘‘probability of causation’’ (PoC) that an employee’s cancer
was sustained in the performance of
duty is 50% or greater (i.e., it is ‘‘at
least as likely as not’’ causally related
to employment), as required under section 7384n(b).
(c) OWCP also uses HHS’s regulations
when it makes the determination required by section 7385s–4(c)(1)(A) of the
Act, since those regulations provide
the factual basis for OWCP to determine if ‘‘it is at least as likely as not’’
that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in
aggravating, contributing to, or causing the employee’s radiogenic cancer
claimed under Part E. For cancer
claims under Part E, if the PoC is less
than 50% and the claimant alleges that
the employee was exposed to additional
toxic substances, OWCP will determine
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Office of Workers’ Compensation Programs, Labor
if the claim is otherwise compensable
pursuant to § 30.230(d) of this part.
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[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
§ 30.214 How does a claimant establish
that the employee is a member of
the Special Exposure Cohort?
(a) For purposes of establishing eligibility as a member of the Special Exposure Cohort (SEC) under § 30.210(a)(1),
the employee must have been a DOE
employee, a DOE contractor employee,
or an atomic weapons employee who
meets any of the following requirements:
(1) The employee was so employed for
a number of workdays aggregating at
least 250 workdays before February 1,
1992, at a gaseous diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak Ridge, Tennessee;
and during such employment:
(i) Was monitored through the use of
dosimetry badges for exposure at the
plant of the external parts of the employee’s body to radiation; or
(ii) Worked in a job that had exposures comparable to a job that is or
was monitored through the use of dosimetry badges.
(2) The employee was so employed before January 1, 1974, by DOE or a DOE
contractor or subcontractor on Amchitka Island, Alaska, and was exposed
to ionizing radiation in the performance of duty related to the Long Shot,
Milrow, or Cannikin underground nuclear tests.
(3) The employee is a member of a
group or class of employees subsequently designated as additional members of the SEC by HHS.
(b) For purposes of satisfying the 250
workday requirement of paragraph
(a)(1) of this section, the claimant may
aggregate the days of service at more
than one gaseous diffusion plant.
(c) Proof of employment by the DOE
or a DOE contractor, or an atomic
weapons employer, for the requisite
time periods set forth in paragraph (a)
of this section, may be made by the
submission of any trustworthy records
that, on their face or in conjunction
with other such records, establish that
the employee was so employed and the
time period(s) of such employment. If
the evidence shows that exposure oc-
§ 30.220
curred while the employee was employed by an employer that would have
to be designated by DOE as an atomic
weapons
employer
under
section
7384l(4) of the Act to be a covered employer, and that the employer has not
been so designated, OWCP will deny
the claim on the ground that the employer is not a covered atomic weapons
employer.
(d) Records from the following
sources may be considered as evidence
for purposes of establishing employment or presence at a covered facility:
(1) Records or documents created by
any federal government agency (including verified information submitted
for security clearance), any tribal government, or any state, county, city or
local government office, agency, department, board or other entity, or
other public agency or office.
(2) Records or documents created as a
byproduct of any regularly conducted
business activity or by an entity that
acted as a contractor or subcontractor
to the DOE.
§ 30.215 How does a claimant establish
that the employee has sustained an
injury, illness, impairment or disease as a consequence of a diagnosed cancer?
An injury, illness, impairment or disease sustained as a consequence of a diagnosed cancer covered by the provisions of § 30.210 must be established
with a fully rationalized medical report by a physician that shows the relationship between the injury, illness,
impairment or disease and the cancer.
Neither the fact that the injury, illness, impairment or disease manifests
itself after a diagnosis of a cancer, nor
the belief of the claimant that the injury, illness, impairment or disease
was caused by the cancer, is sufficient
in itself to prove a causal relationship.
ELIGIBILITY CRITERIA FOR CLAIMS RELATING TO CHRONIC SILICOSIS UNDER
PART B OF EEOICPA
§ 30.220 What are the criteria for eligibility for benefits relating to chronic silicosis?
To establish eligibility for benefits
for chronic silicosis under Part B of
EEOICPA, an employee or his or her
survivor must show that:
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§ 30.221
20 CFR Ch. I (4–1–20 Edition)
(a) The employee is a civilian DOE
employee, or a civilian DOE contractor
employee, who was present for a number of workdays aggregating at least
250 workdays during the mining of tunnels at a DOE facility (as defined in
§ 30.5(y)) located in Nevada or Alaska
for tests or experiments related to an
atomic weapon, and has been diagnosed
with chronic silicosis (as defined in
§ 30.5(k)); or
(b) The employee has been diagnosed
with an injury, illness, impairment or
disease that arose as a consequence of
the accepted chronic silicosis.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
§ 30.221 How does a claimant prove exposure to silica in the performance
of duty?
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(a) Proof of the employee’s employment and presence for the requisite
days during the mining of tunnels at a
DOE facility located in Nevada or Alaska for tests or experiments related to
an atomic weapon may be made by the
submission of any trustworthy records
that, on their face or in conjunction
with other such records, establish that
the employee was so employed and
present at these sites and the time period(s) of such employment and presence.
(b) If the evidence shows that exposure occurred while the employee was
employed and present at a facility during a time frame that is outside the
relevant time frame indicated for that
facility, OWCP may request that DOE
provide additional information on the
facility. OWCP will determine whether
the evidence of record supports enlarging the relevant time frame for that facility.
(c) Records from the following
sources may be considered as evidence
for purposes of establishing proof of
employment or presence at a covered
facility:
(1) Records or documents created by
any federal government agency (including verified information submitted
for security clearance), any tribal gov-
ernment, or any state, county, city or
local government office, agency, department, board or other entity, or
other public agency or office.
(2) Records or documents created as a
byproduct of any regularly conducted
business activity or by an entity that
acted as a contractor or subcontractor
to the DOE.
(d) For purposes of satisfying the 250
workday requirement of § 30.220(a), the
claimant may aggregate the days of
service at more than one qualifying
site.
§ 30.222 How does a claimant establish
that the employee has been diagnosed with chronic silicosis or has
sustained a consequential injury,
illness, impairment or disease?
(a) A written diagnosis of the employee’s chronic silicosis (as defined in
§ 30.5(k)) shall be made by a licensed
physician and accompanied by one of
the following:
(1) A chest radiograph, interpreted by
an individual certified by NIOSH as a B
reader, classifying the existence of
pneumoconioses of category 1/0 or higher; or
(2) Results from a computer assisted
tomograph or other imaging technique
that are consistent with silicosis; or
(3) Lung biopsy findings consistent
with silicosis.
(b) An injury, illness, impairment or
disease sustained as a consequence of
accepted chronic silicosis covered by
the provisions of § 30.220(a) must be established with a fully rationalized
medical report by a physician that
shows the relationship between the injury, illness, impairment or disease and
the accepted chronic silicosis. Neither
the fact that the injury, illness, impairment or disease manifests itself
after a diagnosis of accepted chronic
silicosis, nor the belief of the claimant
that the injury, illness, impairment or
disease was caused by the accepted
chronic silicosis, is sufficient in itself
to prove a causal relationship.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
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Office of Workers’ Compensation Programs, Labor
ELIGIBILITY CRITERIA FOR CERTAIN URANIUM EMPLOYEES UNDER PART B OF
EEOICPA
§ 30.225 What are the criteria for eligibility for benefits under Part B of
EEOICPA for certain uranium employees?
In order to be eligible for benefits
under this section, the claimant must
establish the criteria set forth in either
paragraph (a) or paragraph (b) of this
section:
(a) The Attorney General has determined that the claimant is a covered
uranium employee who is entitled to
payment of $100,000 as compensation
due under section 5 of RECA for a
claim made under that statute (there
is, however, no requirement that the
claimant or surviving eligible beneficiary has actually received payment
pursuant to RECA). If a deceased employee’s survivor(s) has been determined to be entitled to such an award,
his or her survivor(s), if any, will only
be entitled to EEOICPA compensation
in accordance with section 7384u(e) of
the Act.
(b) The covered uranium employee
has been diagnosed with an injury, illness, impairment or disease that arose
as a consequence of the medical condition for which he or she was determined to be entitled to payment of
$100,000 as compensation due under section 5 of RECA.
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§ 30.226 How does a claimant establish
that a covered uranium employee
has sustained a consequential injury, illness, impairment or disease?
An injury, illness, impairment or disease sustained as a consequence of a
medical condition covered by the provisions of § 30.225(a) must be established
with a fully rationalized medical report by a physician that shows the relationship between the injury, illness,
impairment or disease and the accepted medical condition. Neither the fact
that the injury, illness, impairment or
disease manifests itself after a diagnosis of a medical condition covered by
the provisions of § 30.225(a), nor the belief of the claimant that the injury, illness, impairment or disease was caused
by such a condition, is sufficient in
itself to prove a causal relationship.
§ 30.230
ELIGIBILITY CRITERIA FOR OTHER
CLAIMS UNDER PART E OF EEOICPA
§ 30.230 What are the criteria necessary to establish that an employee contracted a covered illness
under Part E of EEOICPA?
To establish that an employee contracted a covered illness under Part E
of the Act, the employee, or his or her
survivor, must show one of the following:
(a) That OWCP has determined under
Part B of EEOICPA that the employee
is a DOE contractor employee as defined in § 30.5(x), and that he or she has
been awarded compensation under that
Part of the Act for an occupational illness;
(b) That the Attorney General has
determined that the employee is entitled to payment of $100,000 as compensation due under section 5 of RECA
for a claim made under that statute
(however, if a deceased employee’s survivor has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to
benefits under Part E of EEOICPA in
accordance with section 7385s–3 of the
Act);
(c) That the Secretary of Energy has
accepted a positive determination of a
Physicians Panel that the employee
sustained an illness or died due to exposure to a toxic substance at a DOE
facility under former section 7385o of
EEOICPA, or that the Secretary of Energy has found significant evidence
contrary to a negative determination
of a Physicians Panel; or
(d)(1) That the employee is a civilian
DOE contractor employee as defined in
§ 30.5(x), or a civilian who was employed in a uranium mine or mill located in Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or Texas at any time during the
period from January 1, 1942 through
December 31, 1971, or was employed in
the transport of uranium ore or vanadium-uranium ore from such a mine or
mill during that same period, and that
he or she:
(i) Has been diagnosed with an illness; and
(ii) That it is at least as likely as not
that exposure to a toxic substance at a
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§ 30.231
20 CFR Ch. I (4–1–20 Edition)
Department of Energy facility or at a
RECA section 5 facility, as appropriate,
was a significant factor in aggravating,
contributing to, or causing the illness;
and
(iii) That it is at least as likely as
not that the exposure to such toxic
substance was related to employment
at a Department of Energy facility or a
RECA section 5 facility, as appropriate.
(2) In making the determination
under paragraph (d)(1)(ii) of this section, OWCP will consider:
(i) The nature, frequency and duration of exposure of the covered employee to the substance alleged to be
toxic;
(ii) Evidence of the carcinogenic or
pathogenic properties of the alleged
toxic substance to which the employee
was exposed;
(iii) An opinion of a qualified physician with expertise in treating, diagnosing or researching the illness
claimed to be caused or aggravated by
the alleged exposure; and
(iv) Any other evidence that OWCP
determines to have demonstrated relevance to the relation between a particular toxic substance and the claimed
illness.
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[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
§ 30.231 How does a claimant prove
employment-related exposure to a
toxic substance at a DOE facility or
a RECA section 5 facility?
To establish employment-related exposure to a toxic substance at a Department of Energy facility or RECA
section 5 facility as required by
§ 30.230(d), an employee, or his or her
survivor(s), must prove that the employee was employed at such facility
and that he or she was exposed to a
toxic substance in the course of that
employment.
(a) Proof of employment may be established by any trustworthy records
that, on their face or in conjunction
with other such records, establish that
the employee was so employed and the
time period(s) of such employment. If
the only evidence of covered employment submitted by the claimant is a
written affidavit or declaration subject
to penalty of perjury by the employee,
survivor or any other person, and DOE
or another entity either disagrees with
the assertion of covered employment or
cannot concur or disagree with the assertion of covered employment, then
OWCP will evaluate the probative
value of the affidavit in conjunction
with the other evidence of employment, and may determine that the
claimant has not met his or her burden
of proof under § 30.111.
(b) For claimants who have established proof of employment, proof of
exposure to a toxic substance may be
established by the submission of any
appropriate document or information
that is evidence that such substance
was present at the facility where the
employee was employed and that the
employee came into contact with such
substance. Information from the following sources may be considered as
probative factual evidence for purposes
of establishing an employee’s exposure
to a toxic substance at a DOE facility
or a RECA section 5 facility:
(1) To the extent practicable and appropriate, from DOE, a DOE-sponsored
Former Worker Program, or an entity
that acted as a contractor or subcontractor to DOE;
(2) OWCP’s Site Exposure Matrices;
or
(3) Any other entity deemed by
OWCP to be a reliable source of information necessary to establish that the
employee was exposed to a toxic substance at a DOE facility or RECA section 5 facility.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
§ 30.232 How does a claimant establish
that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of
a covered illness?
(a) To establish that the employee
has been diagnosed with a covered illness as required by § 30.230(d), the employee, or his or her survivor(s), must
provide the following:
(1) Written medical evidence containing a physician’s diagnosis of the
employee’s covered illness (as that
term is defined in § 30.5(s)), and the
physician’s reasoning for his or her
opinion regarding causation; and
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Office of Workers’ Compensation Programs, Labor
(2) Any other evidence OWCP may
deem necessary to show that the employee has or had an illness that resulted from an exposure to a toxic substance while working at either a DOE
facility or a RECA section 5 facility.
(b) An injury, illness, impairment or
disease sustained as a consequence of a
covered illness (as defined in § 30.5(s))
must be established with a fully rationalized medical report by a physician
that shows the relationship between
the injury, illness, impairment or disease and the covered illness. Neither
the fact that the injury, illness, impairment or disease manifests itself
after a diagnosis of a covered illness,
nor the belief of the claimant that the
injury, illness, impairment or disease
was caused by the covered illness, is
sufficient in itself to prove a causal relationship.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3049, Feb. 8, 2019]
Subpart D—Adjudicatory Process
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GENERAL PROVISIONS
§ 30.300 What administrative process
will OWCP use to decide claims for
entitlement, and how can claimants
obtain judicial review of final decisions on their claims?
OWCP district offices will issue recommended decisions with respect to
most claims for entitlement under Part
B and/or Part E of EEOICPA that are
filed pursuant to the regulations set
forth in subpart B of this part. In circumstances where a claim is made for
more than one benefit available under
Part B and/or Part E of the Act, OWCP
may issue a recommended decision on
only part of that particular claim in
order to adjudicate that portion of the
claim as quickly as possible. Should
this occur, OWCP will issue one or
more recommended decisions on the
deferred portions of the claim when the
adjudication of those portions is completed. All recommended decisions
granting and/or denying claims for entitlement under Part B and/or Part E
of the Act will be forwarded to the
Final Adjudication Branch (FAB).
Claimants will be given an opportunity
to object to all or part of the recommended decision before the FAB.
§ 30.301
The FAB will consider objections filed
by a claimant and conduct a hearing, if
requested to do so by the claimant, before issuing a final decision on the
claim for entitlement. Claimants may
request judicial review of a final decision of FAB by filing an action in Federal district court.
[84 FR 3050, Feb. 8, 2019]
§ 30.301 May subpoenas be issued for
witnesses and documents in connection with a claim under Part B
of EEOICPA?
(a) In connection with the adjudication of a claim under Part B of
EEOICPA, an OWCP district office and/
or a FAB reviewer may, at their own
initiative, issue subpoenas for the attendance and testimony of witnesses,
and for the production of books, electronic records, correspondence, papers
or other relevant documents. Subpoenas will only be issued for documents if they are relevant and cannot
be obtained by other means, and for
witnesses only where oral testimony is
the best way to ascertain the facts.
(b) A claimant may also request a
subpoena in connection with his or her
claim under Part B of the Act, but such
request may only be made to a FAB reviewer. No subpoenas will be issued at
the request of the claimant under any
other portion of the claims process.
The decision to grant or deny such request is within the discretion of the
FAB reviewer. To request a subpoena
under this section, the requestor must:
(1) Submit the request in writing and
send it to the FAB reviewer as early as
possible, but no later than 30 days (as
evidenced by postmark or other carrier’s date marking) after the date of
the original hearing request;
(2) Explain why the testimony or evidence is directly relevant and material
to the issues in the case; and
(3) Establish that a subpoena is the
best method or opportunity to obtain
such evidence because there are no
other means by which the documents
or testimony could have been obtained.
(c) No subpoena will be issued for attendance of employees or contractors
of OWCP or NIOSH acting in their official capacities as decision-makers or
policy administrators. For hearings
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§ 30.302
20 CFR Ch. I (4–1–20 Edition)
taking the form of a review of the written record, no subpoena for the appearance of witnesses will be considered.
(d) The FAB reviewer will issue the
subpoena under his or her own name. It
may be served in person or by certified
mail, return receipt requested, addressed to the person to be served at
his or her last known principal place of
business or residence. A decision to
deny a subpoena requested by a claimant can only be challenged as part of a
request for reconsideration of any adverse decision of the FAB which results
from the hearing.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3050, Feb. 8, 2019]
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§ 30.302 Who pays the costs associated
with subpoenas?
(a) Witnesses who are not employees
or former employees of the federal government shall be paid the same fees
and mileage as paid for like services in
the District Court of the United States
where the subpoena is returnable, except that expert witnesses shall be paid
a fee not to exceed the local customary
fee for such services.
(b) Where OWCP asked that the witness submit evidence into the case
record or asked that the witness attend, OWCP shall pay the fees and
mileage. Where the claimant asked for
the subpoena, and where the witness
submitted evidence into the record at
the request of the claimant, the claimant shall pay the fees and mileage.
§ 30.303 What information may OWCP
request in connection with a claim
under Part E of EEOICPA?
At any time during the course of development of a claim for benefits under
Part E, OWCP may determine that it
needs relevant information to adjudicate the claim. When this occurs, and
at the request of OWCP, DOE and/or
any contractor who employed a Department of Energy contractor employee must provide to OWCP information or documents in response to the
request in connection with a claim
under Part E of EEOICPA.
(a) The party to whom the request is
made must respond to OWCP within 90
days of the request with either:
(1) The requested information or documents; or
(2) A sworn statement that a good
faith search for the requested information or documents was conducted, and
that the information or documents
could not be located.
(b) DOE and/or the DOE contractor
who employed a Department of Energy
contractor employee must query third
parties under its control to acquire the
requested information or documents.
(c) In providing the requested information or documents, DOE and/or the
DOE contractor who employed a DOE
contractor employee must preserve the
current organization of the requested
information or documents, and must
provide such description and indexing
of the requested information or documents as OWCP considers appropriate
to facilitate their use by OWCP.
(d) Information or document requests
may include, but are not limited to, requests for records, files and other data,
whether paper, electronic, imaged or
otherwise, developed, acquired or
maintained by DOE or the DOE contractor who employed a DOE contractor employee. Such information or
documents may include records, files
and data on facility industrial hygiene,
employment of individuals or groups,
exposure and medical records, and
claims applications.
RECOMMENDED DECISIONS ON CLAIMS
§ 30.305 How does OWCP determine
entitlement to EEOICPA compensation?
(a) In reaching a recommended decision with respect to EEOICPA compensation, OWCP considers the claim
presented by the claimant, the factual
and medical evidence of record, the
dose reconstruction report prepared by
NIOSH (if any), any report submitted
by DOE and the results of such investigation as OWCP may deem necessary.
(b) The OWCP claims staff applies
the law, the regulations and its procedures when it evaluates the medical
evidence and the facts as reported or
obtained upon investigation.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3050, Feb. 8, 2019]
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Office of Workers’ Compensation Programs, Labor
§ 30.306 What does the recommended
decision include?
HEARINGS AND FINAL DECISIONS ON
CLAIMS
The recommended decision shall include a discussion of the district office’s findings of fact and conclusions
of law in support of the recommendation. The recommended decision may
recommend acceptance or rejection of
the claim in its entirety, or of a portion of the claim presented. It is accompanied by a notice of the claimant’s right to file objections with, and
request a hearing before, the FAB.
§ 30.310 What must the claimant do if
he or she objects to the recommended decision or wants to request a hearing?
[84 FR 3050, Feb. 8, 2019]
§ 30.307 Can one recommended decision address the entitlement of multiple claimants?
(a) When multiple individuals have
filed survivor claims under Part B and/
or Part E of EEOICPA relating to the
same deceased employee, the entitlement of all of those individuals shall be
determined in the same recommended
decision, except as described in paragraph (b) of this section.
(b) If another individual subsequently
files a survivor claim for the same
award, the recommended decision on
that claim will not address the entitlement of the earlier claimants if the
district office recommended that the
later survivor claim be denied.
[84 FR 3050, Feb. 8, 2019]
§ 30.308 To whom is the recommended
decision sent?
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§ 30.312
(a) A copy of the recommended decision will be mailed to the claimant’s
last known address and to the claimant’s designated representative before
OWCP, if any. Notification to either
the claimant or the representative will
be considered notification to both parties.
(b) At the same time it issues a recommended decision on a claim, the
OWCP district office will forward the
record of such claim to the FAB. Any
new evidence submitted to the district
office following the issuance of the recommended decision will also be forwarded to the FAB for consideration.
[71 FR 78534, Dec. 29, 2006. Redesignated at 84
FR 3050, Feb. 8, 2019]
(a) Within 60 days from the date the
recommended decision is issued, the
claimant must state, in writing,
whether he or she objects to any of the
findings of fact and/or conclusions of
law discussed in such decision, including NIOSH’s reconstruction of the radiation dose to which the employee was
exposed (if any), and whether a hearing
is desired. This written statement
should be filed with the FAB at the address indicated in the notice accompanying the recommended decision.
(b) For purposes of determining
whether the written statement referred
to in paragraph (a) of this section has
been timely filed with the FAB, the
statement will be considered to be
‘‘filed’’ on the date that the claimant
mails it to the FAB, as determined by
postmark or other carrier’s date marking, or on the date that such written
statement is actually received, whichever is the earliest determinable date.
[84 FR 3050, Feb. 8, 2019]
§ 30.311 What happens if the claimant
does not object to the recommended
decision or request a hearing within 60 days?
(a) If the claimant does not file a
written statement that objects to the
recommended decision and/or requests
a hearing within the period of time allotted in § 30.310, the FAB may issue a
final decision accepting the recommendation of the district office as
provided in § 30.316.
(b) If the recommended decision accepts all or part of a claim for compensation, the FAB may issue a final
decision at any time after receiving
written notice from the claimant that
he or she waives any objection to all or
part of the recommended decision.
§ 30.312 What will the FAB do if the
claimant
objects
to
the
recommended decision but does not request a hearing?
If the claimant files a written statement that objects to the recommended
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§ 30.313
20 CFR Ch. I (4–1–20 Edition)
decision within the period of time allotted in § 30.310 but does not request a
hearing, the FAB will consider any objections by means of a review of the
written record. If the claimant only objects to part of the recommended decision, the FAB may issue a final decision accepting the remaining part of
the recommendation of the district office without first reviewing the written
record (see § 30.316).
§ 30.313 How is a review of the written
record conducted?
(a) The FAB reviewer will consider
the written record forwarded by the
district office and any additional evidence and/or argument submitted by
the claimant. The reviewer may also
conduct whatever investigation is
deemed necessary.
(b) The claimant should submit, with
his or her written statement that objects to the recommended decision, all
evidence or argument that he or she
wants to present to the reviewer. However, evidence or argument may be submitted at any time up to the date specified by the reviewer for the submission
of such evidence or argument.
(c) Any objection that is not presented to the FAB reviewer, including
any objection to NIOSH’s reconstruction of the radiation dose to which the
employee was exposed (if any), whether
or not the pertinent issue was previously presented to the district office,
is deemed waived for all purposes.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3050, Feb. 8, 2019]
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§ 30.314
How is a hearing conducted?
(a) The FAB reviewer retains complete discretion to set the time and
place of the hearing, including the
amount of time allotted for the hearing, considering the issues to be resolved. At the discretion of the reviewer, the hearing may be conducted
by telephone, teleconference, videoconference or other electronic means.
As part of the hearing process, the FAB
reviewer will consider the written
record forwarded by the district office
and any additional evidence and/or argument submitted by the claimant.
The reviewer may also conduct whatever investigation is deemed necessary.
(1) The FAB reviewer will try to set
the hearing at a place that is within
commuting distance of the claimant’s
residence, but will not be able to do so
in all cases. Therefore, for reasons of
economy, the claimant may be required to travel a roundtrip distance of
up to 200 miles to attend the hearing.
(2) In unusual circumstances, the
FAB reviewer may set a place for the
hearing that is more than 200 miles
roundtrip from the claimant’s residence. However, in that situation,
OWCP will reimburse the claimant for
reasonable and necessary travel expenses incurred to attend the hearing if
he or she submits a written reimbursement request that documents such expenses.
(b) The FAB reviewer will mail a notice of the time and place of the hearing to the claimant and any representative at least 30 days before the scheduled hearing date. The FAB reviewer
may mail a hearing notice less than 30
days prior to the hearing if the claimant and/or representative waives the
above 30-day notice period in writing.
If the claimant only objects to part of
the recommended decision, the FAB reviewer may issue a final decision accepting the remaining part of the recommendation of the district office
without first holding a hearing (see
§ 30.316). Any objection that is not presented to the FAB reviewer, including
any objection to NIOSH’s reconstruction of the radiation dose to which the
employee was exposed (if any), whether
or not the pertinent issue was previously presented to the district office,
is deemed waived for all purposes.
(c) The hearing is an informal process, and the reviewer is not bound by
common law or statutory rules of evidence, or by technical or formal rules
of procedure. The reviewer may conduct the hearing in such manner as to
best ascertain the rights of the claimant. During the hearing process, the
claimant may state his or her arguments and present new written evidence and/or testimony in support of
the claim.
(d) Testimony at hearings is recorded, then transcribed and placed in
the record. Oral testimony shall be
made under oath.
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Office of Workers’ Compensation Programs, Labor
§ 30.316
(e) The FAB reviewer will furnish a
transcript of the hearing to the claimant, who has 20 days from the date it is
sent to submit any comments to the
reviewer.
(f) The claimant will have 30 days
after the hearing is held to submit additional evidence or argument, unless
the reviewer, in his or her sole discretion, grants an extension. Only one
such extension may be granted.
(g) The reviewer determines the conduct of the hearing and may terminate
the hearing at any time he or she determines that all relevant evidence has
been obtained, or because of misbehavior on the part of the claimant
and/or representative at or near the
place of the oral presentation.
ent, spouse, or child prevents the
claimant from attending the hearing as
scheduled, a postponement may be
granted in the discretion of the FAB if
the claimant or the representative provides at least 24 hours notice and a reasonable explanation supporting his or
her inability to attend the scheduled
hearing.
(c) At any time after requesting a
hearing, the claimant can request a
change to a review of the written
record by making a written request to
the FAB. Once such a change is made,
no further opportunity for a hearing
will be provided.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3050, Feb. 8, 2019]
§ 30.316 How does the FAB issue a
final decision on a claim?
§ 30.315 May a claimant postpone a
hearing?
(a) The FAB will entertain any reasonable request for scheduling the time
and place of the hearing, but such requests should be made at the time that
the hearing is requested. Scheduling is
at the discretion of the FAB, and is not
reviewable. In most instances, once the
hearing has been scheduled and appropriate written notice has been mailed,
it cannot be postponed at the claimant’s request for any reason except
those stated in paragraph (b) of this
section, unless the FAB reviewer can
reschedule the hearing on the same
docket (that is, during the same hearing trip). If a request to postpone a
scheduled hearing does not meet one of
the tests of paragraph (b) of this section and cannot be accommodated on
the same docket, or if the claimant
and/or representative cancels or fails to
attend a scheduled hearing, no further
opportunity for a hearing will be provided. Instead, the FAB will consider
the claimant’s objections by means of a
review of the written record. In the alternative, a teleconference may be substituted for the hearing at the discretion of the reviewer.
(b) Where the claimant or the representative appointed by the claimant
in accordance with § 30.600 of this part
has a medical reason that prevents attendance at the hearing, or where the
death or illness of the claimant’s par-
(a) If the claimant does not file a
written statement that objects to the
recommended decision and/or requests
a hearing within the period of time allotted in § 30.310, or if the claimant
waives any objections to all or part of
the recommended decision, the FAB
may issue a final decision accepting
the recommendation of the district office, either in whole or in part (see
§§ 30.311, 30.312 and 30.314(b)).
(b) If the claimant objects to all or
part of the recommended decision, the
FAB reviewer will issue a final decision
on the claim after either the hearing or
the review of the written record, and
after completing such further development of the case as he or she may deem
necessary.
(c) Any recommended decision (or
part thereof) that is pending either a
hearing or a review of the written
record for more than one year from the
date the FAB received the written
statement described in § 30.310(a), or
the date the Director reopened the
claim for issuance of a new final decision pursuant to § 30.320(a), shall be
considered a final decision of the FAB
on the one-year anniversary of such
date. Any recommended decision described in § 30.311 that is pending at the
FAB for more than one year from the
date that the period of time described
in § 30.310 expired shall be considered a
final decision of the FAB on the oneyear anniversary of such date.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3051, Feb. 8, 2019]
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§ 30.317
20 CFR Ch. I (4–1–20 Edition)
(d) The decision of the FAB, whether
issued pursuant to paragraph (a), (b) or
(c) of this section, shall be final upon
the date of issuance of such decision,
unless a timely request for reconsideration under § 30.319 has been filed.
(e) A copy of the final decision of the
FAB will be mailed to the claimant’s
last known address and to the claimant’s designated representative before
OWCP, if any. Notification to either
the claimant or the representative will
be considered notification to both parties.
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§ 30.317 Can the FAB request a further
response from the claimant or return a claim to the district office?
At any time before the issuance of its
final decision, the FAB may request
that the claimant submit additional
evidence or argument, or return the
claim to the district office for further
development and/or issuance of a newly
recommended decision without issuing
a final decision, whether or not requested to do so by the claimant.
§ 30.318 How will FAB consider objections to NIOSH’s reconstruction of a
radiation dose, or to OWCP’s calculation of the recommended probability of causation, in a Part B
claim for radiogenic cancer?
(a) If the claimant objects to
NIOSH’s reconstruction of the radiation dose to which the employee was
exposed, either in writing or at the oral
hearing, the FAB reviewer has the discretion to consult with NIOSH as part
of his or her consideration of any objection. However, the HHS dose reconstruction regulation, which provides
guidance for the technical methods developed and used by NIOSH to provide
a reasonable estimate of the radiation
dose received by an employee, is binding on FAB. Should this consultation
take place, the FAB reviewer will properly document it in the case. Whether
or not NIOSH is consulted, and as provided for in § 30.317, the FAB reviewer
may decide to return the case to the
district office for referral to NIOSH for
such further action as may be appropriate.
(b) If the claimant objects to OWCP’s
calculation of the recommended probability of causation in a Part B
radiogenic cancer claim, the FAB re-
viewer has the discretion to consider if
OWCP used incorrect factual information when it performed this calculation. However, the statute requires
that OWCP use a particular methodology,
established
by
regulations
issued by HHS at 42 CFR part 81, when
it calculates the recommended probability of causation.
[84 FR 3051, Feb. 8, 2019]
§ 30.319 May a claimant request reconsideration of a final decision of the
FAB?
(a) A claimant may request reconsideration of a final decision of the FAB
by filing a written request with the
FAB within 30 days from the date of
issuance of such decision. If a timely
request for reconsideration is made,
the decision in question will no longer
be considered ‘‘final’’ under § 30.316(d).
(b) For purposes of determining
whether the written request referred to
in paragraph (a) of this section has
been timely filed with the FAB, the request will be considered to be ‘‘filed’’
on the date that the claimant mails it
to the FAB, as determined by postmark or other carrier’s date marking,
or on the date that such written request is actually received, whichever is
the earliest determinable date.
(c) A hearing is not available as part
of the reconsideration process. If the
FAB grants the request for reconsideration, it will consider the written
record of the claim again and issue a
new final decision on the claim. A new
final decision that is issued after the
FAB grants a request for reconsideration will be ‘‘final’’ upon the date of
issuance of such new decision.
(1) Instead of issuing a new final decision after granting a request for reconsideration, the FAB may return the
claim to the district office for further
development as provided in § 30.317.
(2) If the FAB denies the request for
reconsideration, the FAB decision that
formed the basis for the request will be
considered ‘‘final’’ upon the date the
request is denied, and no further requests for reconsideration of that particular final decision of the FAB will
be entertained.
(d) A claimant may not seek judicial
review of a decision on his or her claim
under EEOICPA until OWCP’s decision
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Office of Workers’ Compensation Programs, Labor
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on the claim is final pursuant to either
§ 30.316(d) (for claims in which no request for reconsideration was filed with
the FAB) or paragraph (c) of this section (for claims in which a request for
reconsideration was filed with the
FAB).
§ 30.400
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3051, Feb. 8, 2019]
this section and returns it to the district office, the resulting new recommended decision will be subject to
the adjudicatory process described in
this subpart. However, neither the district office nor the FAB can consider
any objection concerning the Director’s decision to reopen a claim under
this section.
REOPENING CLAIMS
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3051, Feb. 8, 2019]
§ 30.320 Can a claim be reopened after
the FAB has issued a final decision?
(a) At any time after the FAB has
issued a final decision pursuant to
§ 30.316, and without regard to whether
new evidence or information is presented or obtained, the Director for Energy Employees Occupational Illness
Compensation may reopen a claim and
return it to the FAB for issuance of a
new final decision, or to the district office for such further development as
may be necessary, to be followed by a
new recommended decision. The Director may also vacate any other type of
decision issued by the FAB.
(b) At any time after the FAB has
issued a final decision pursuant to
§ 30.316, a claimant may file a written
request that the Director for Energy
Employees Occupational Illness Compensation reopen his or her claim, provided that the claimant also submits
new evidence of a diagnosed medical
condition, covered employment, or exposure to a toxic substance. A written
request to reopen a claim may also be
supported by identifying either a
change in the PoC guidelines, a change
in the dose reconstruction methods or
an addition of a class of employees to
the Special Exposure Cohort. If the Director concludes that the evidence submitted or matter identified in support
of the claimant’s request is material to
the claim, the Director will reopen the
claim and return it to the district office for such further development as
may be necessary, to be followed by a
new recommended decision.
(c) The decision whether or not to reopen a claim under this section is solely within the discretion of the Director
for Energy Employees Occupational Illness Compensation and is not reviewable. If the Director reopens a claim
pursuant to paragraphs (a) or (b) of
Subpart E—Medical and Related
Benefits
MEDICAL TREATMENT AND RELATED
ISSUES
§ 30.400 What are the basic rules for
obtaining medical treatment?
(a) A covered Part B employee or a
covered Part E employee who fits into
at least one of the compensable claim
categories described in subpart C of
this part is entitled to receive all medical services, appliances or supplies
that a qualified physician prescribes or
recommends and that OWCP considers
necessary to treat his or her occupational illness or covered illness, retroactive to the date the claim for benefits for that occupational illness or
covered illness under Part B or Part E
of EEOICPA was filed. The employee
need not be disabled to receive such
treatment. If there is any doubt as to
whether a specific service, appliance or
supply is necessary to treat the occupational illness or covered illness, the
employee should consult OWCP prior
to obtaining it through the automated
authorization process described in
§ 30.700. In situations where the occupational illness or covered illness is a
secondary cancer, such treatment may
include treatment of the underlying
primary cancer when it is medically
necessary or related to treatment of
the secondary cancer; however, payment for medical treatment of the underlying primary cancer under these
circumstances does not constitute a determination by OWCP that the primary
cancer is a covered illness under Part E
of EEOICPA.
(b) If a claimant disagrees with the
decision of OWCP that medical benefits
provided under paragraph (a) of this
section are not necessary to treat an
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§ 30.401
20 CFR Ch. I (4–1–20 Edition)
occupational illness or covered illness,
he or she may choose to utilize the adjudicatory process described in subpart
D of this part.
(c) Any qualified physician may provide medical services, appliances and
supplies to the covered Part B employee or the covered Part E employee.
A hospital or a provider of medical
services or supplies may furnish appropriate services, drugs, supplies and appliances, so long as such provider possesses all applicable licenses required
under State law and has not been excluded from participation in the program under subpart H of this part.
OWCP may apply a test of cost-effectiveness when it decides if appliances
and supplies are necessary to treat an
occupational illness or covered illness,
may offset the cost of prior rental payments against a future purchase price,
and may provide refurbished appliances
where appropriate. Also, OWCP may
authorize payment for durable medical
equipment and modifications to a
home or vehicle, to the extent that
OWCP deems it necessary and reasonable. With respect to prescribed medications, OWCP may require the use of
generic equivalents where they are
available. OWCP may contract with a
specific provider or providers to supply
non-physician medical services or supplies.
(d) In circumstances when a covered
employee dies after filing a claim but
before such claim is accepted, OWCP
will pay for medical treatment for all
accepted illnesses, retroactive to the
date that the employee filed the claim,
if the deceased employee’s survivor(s)
files a claim that is accepted under
Part B and/or Part E of EEOICPA. If
this occurs, OWCP shall only pay either the provider(s) or the employee’s
estate for medical treatment that the
employee obtained after filing his or
her claim.
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[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3051, Feb. 8, 2019]
§ 30.401 What are the special rules for
the services of chiropractors?
(a) The services of chiropractors that
may be reimbursed by OWCP are limited to treatment to correct a spinal
subluxation. The costs of physical and
related laboratory tests performed by
or required by a chiropractor to diagnose such a subluxation are also payable.
(b) A diagnosis of spinal subluxation
as demonstrated by x-ray to exist must
appear in the chiropractor’s report before OWCP can consider payment of a
chiropractor’s bill.
(c) A chiropractor may interpret his
or her x-rays to the same extent as any
other physician. To be given any
weight, the medical report must state
that x-rays support the finding of spinal subluxation. OWCP will not necessarily require submission of the xray, or a report of the x-ray, but the report must be available for submission
on request.
(d) A chiropractor may also provide
services in the nature of physical therapy under the direction of a qualified
physician.
§ 30.402 What are the special rules for
the services of clinical psychologists?
A clinical psychologist may serve as
a physician within the scope of his or
her practice as defined by state law.
Therefore, a clinical psychologist may
not serve as a physician for conditions
that include a physical component unless the applicable state law allows
clinical psychologists to treat physical
conditions. A clinical psychologist may
also perform testing, evaluation, and
other services under the direction of a
qualified physician.
§ 30.403 Will OWCP pay for home
health care, nursing home, and assisted living services?
(a) OWCP will authorize and pay for
home health care claimed under section 7384t of the Act, whether or not
such care constitutes skilled nursing
care, so long as the care has been determined to be medically necessary.
OWCP will pay for approved periods of
care by a registered nurse, licensed
practical nurse, home health aide or
similarly trained individual, subject to
the pre-authorization requirements described in paragraph (c) of this section.
(b) OWCP will also authorize and pay
for periods of nursing home and assisted living services claimed under
section 7384t of the Act, so long as such
services have been determined to be
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Office of Workers’ Compensation Programs, Labor
medically necessary, subject to the
pre-authorization
requirements
described in paragraph (c) of this section.
(c) To file an initial claim for home
health care, nursing home, or assisted
living services, the beneficiary must
submit Form EE–17A to OWCP and
identify his or her treating physician.
OWCP then provides the treating physician with Form EE–17B, which asks
the physician to submit a letter of
medical necessity and verify that a
timely face-to-face physical examination of the beneficiary took place. This
particular pre-authorization process
must be followed only for the initial
claim for home health care, nursing
home, and assisted living services; any
subsequent request for pre-authorization must satisfy OWCP’s usual medical necessity requirements. If a claimant disagrees with the decision of
OWCP that the claimed services are
not medically necessary, he or she may
utilize the adjudicatory process described in subpart D of this part.
(c) Any qualified physician may provide medical services, appliances and
supplies to the covered Part B employee or the covered Part E employee.
A hospital or a provider of medical
services or supplies may furnish appropriate services, drugs, supplies and appliances, so long as such provider possesses all applicable licenses required
under State law and has not been excluded from participation in the program under subpart H of this part.
OWCP may apply a test of cost-effectiveness when it decides if appliances
and supplies are necessary to treat an
occupational illness or covered illness,
may offset the cost of prior rental payments against a future purchase price,
and may provide refurbished appliances
where appropriate. Also, OWCP may
authorize payment for durable medical
equipment and modifications to a
home or vehicle, to the extent that
OWCP deems it necessary and reasonable. With respect to prescribed medications, OWCP may require the use of
generic equivalents where they are
available. OWCP may contract with a
specific provider or providers to supply
non-physician medical services or supplies.
(d) In circumstances when a covered
employee dies after filing a claim but
§ 30.404
before such claim is accepted, OWCP
will pay for medical treatment for all
accepted illnesses, retroactive to the
date that the employee filed the claim,
if the deceased employee’s survivor(s)
files a claim that is accepted under
Part B and/or Part E of EEOICPA. If
this occurs, OWCP shall only pay either the provider(s) or the employee’s
estate for medical treatment that the
employee obtained after filing his or
her claim.
[84 FR 3052, Feb. 8, 2019]
§ 30.404 Will OWCP pay for transportation to obtain medical treatment?
(a) The employee is entitled to reimbursement for reasonable and necessary expenses, including transportation, incident to obtaining authorized medical services, appliances or
supplies. To determine what is a reasonable distance to travel, OWCP will
consider the availability of services,
the employee’s condition, and the
means of transportation. Generally, a
roundtrip distance of up to 200 miles is
considered a reasonable distance to
travel.
(b) If travel of more than 200 miles is
contemplated, or air transportation or
overnight accommodations will be
needed, the employee must submit a
written request to OWCP for prior authorization with information describing the circumstances and necessity for
such travel expenses. OWCP will approve the request if it determines that
the travel expenses are reasonable and
necessary, and are incident to obtaining authorized medical services, appliances or supplies. Requests for travel
expenses that are often approved include those resulting from referrals to
a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited
local medical services.
(c) If a claimant disagrees with the
decision of OWCP that requested travel
expenses are either not reasonable or
necessary, or are not incident to obtaining authorized medical services,
appliances or supplies, he or she may
utilize the adjudicatory process described in subpart D of this part.
(d) The standard form designated for
medical travel refund requests is Form
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§ 30.405
20 CFR Ch. I (4–1–20 Edition)
OWCP–957 and must be used to seek reimbursement under this section. This
form can be obtained from OWCP.
§ 30.405 After selecting a treating physician, may an employee choose to
be treated by another physician instead?
(a) OWCP will provide the employee
with an opportunity to designate a
treating physician when it accepts the
claim. When the physician originally
selected to provide treatment for an
occupational illness or a covered illness refers the employee to a specialist
for further medical care, the employee
need not consult OWCP for approval. In
all other instances, however, the employee must submit a written request
to OWCP with his or her reasons for desiring a change of physician.
(b) OWCP will approve the request if
it determines that the reasons submitted are credible and supported by
probative factual and/or medical evidence, as appropriate. Requests that
are often approved include those for
transfer of care from a general practitioner to a physician who specializes in
treating the occupational illnesses or
covered illnesses covered by EEOICPA,
or the need for a new physician when
an employee has moved.
(c) OWCP may deny a requested
change of physician if it determines
that the reasons submitted are not
both credible and supported by probative evidence. If a claimant disagrees
with such an informal denial, he or she
may utilize the adjudicatory process
described in subpart D of this part.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3052, Feb. 8, 2019]
§ 30.406 Are there any exceptions to
these procedures for obtaining
medical care?
In cases involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner other
than as stated in this subpart.
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DIRECTED MEDICAL EXAMINATIONS
§ 30.410 Can OWCP require an employee to be examined by another
physician?
(a) OWCP sometimes needs a second
opinion from a medical specialist. The
employee must submit to examination
by a qualified physician who conforms
to the standards regarding conflicts of
interest adopted by OWCP as often and
at such times and places as OWCP considers reasonably necessary. Also,
OWCP may send a case file for second
opinion review to a qualified physician
who conforms to the standards regarding conflicts of interest adopted by
OWCP where an actual examination is
not needed, or where the employee is
deceased.
(b) If the initial examination is disrupted by someone accompanying the
employee, OWCP will schedule another
examination with a different qualified
physician who conforms to the standards regarding conflicts of interest
adopted by OWCP. The employee will
not be entitled to have anyone else
present at the subsequent examination
unless OWCP decides that exceptional
circumstances exist. For example,
where a hearing-impaired employee
needs an interpreter, the presence of an
interpreter would be allowed.
(c) OWCP may administratively close
the claim and suspend adjudication of
any pending matters if the employee
refuses to attend a second opinion examination.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3052, Feb. 8, 2019]
§ 30.411 What happens if the opinion of
the physician selected by OWCP differs from the opinion of the physician selected by the employee?
(a) If one medical opinion holds more
probative value than the other, OWCP
will base its determination of coverage
on the medical opinion with the greatest probative value. A difference in
medical opinion sufficient to be considered a conflict only occurs when two
reports of virtually equal weight and
rationale reach opposing conclusions.
(b) If a conflict exists between the
medical opinion of the employee’s physician and the medical opinion of a second opinion physician, an OWCP medical adviser or consultant, or a physician submitting an impairment evaluation that meets the criteria set out in
§ 30.905 of this part, OWCP shall appoint
a third physician who conforms to the
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Office of Workers’ Compensation Programs, Labor
standards regarding conflicts of interest adopted by OWCP to make an examination or an impairment evaluation. This is called a referee examination or a referee impairment evaluation. OWCP will select a physician who
is qualified in the appropriate specialty
and who has had no prior connection
with the case. Also, a case file may be
sent to a physician who conforms to
the standards regarding conflicts of interest adopted by OWCP for a referee
medical review where there is no need
for an actual examination, or where
the employee is deceased.
(c) If the initial referee examination
or referee impairment evaluation is
disrupted by someone accompanying
the employee, OWCP will schedule another examination or impairment evaluation with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by
OWCP. The employee will not be entitled to have anyone else present at the
subsequent referee examination or referee impairment evaluation unless
OWCP decides that exceptional circumstances exist. For example, where
a hearing-impaired employee needs an
interpreter, the presence of an interpreter would be allowed.
(d) OWCP may administratively close
the claim and suspend adjudication of
any pending matters if the employee
refuses to attend a referee medical examination.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3052, Feb. 8, 2019]
§ 30.412 Who pays for second opinion
and referee examinations?
OWCP will pay second opinion and
referee medical specialists directly.
OWCP will also reimburse the employee for all necessary and reasonable
expenses incident to such an examination, including transportation costs
and actual wages the employee lost for
the time needed to submit to an examination required by OWCP.
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MEDICAL REPORTS
§ 30.415 What are the requirements for
medical reports?
In general, medical reports from the
employee’s attending physician should
include the following:
§ 30.417
(a) Dates of examination and treatment;
(b) History given by the employee;
(c) Physical findings;
(d) Results of diagnostic tests;
(e) Diagnosis;
(f) Course of treatment;
(g) A description of any other conditions found due to the claimed occupational illness or covered illness;
(h) The treatment given or recommended for the claimed occupational illness or covered illness; and
(i) All other material findings.
§ 30.416 How and when should medical
reports be submitted?
(a) The initial medical report (and
any subsequent reports) should be
made in narrative form on the physician’s letterhead stationery. The physician should use the Form EE–7 as a
guide for the preparation of his or her
initial medical report in support of a
claim under Part B and/or Part E of
EEOICPA. The report should bear the
physician’s handwritten or electronic
signature. OWCP may require an original signature on the report.
(b) The report shall be submitted directly to OWCP as soon as possible
after medical examination or treatment is received, either by the employee or the physician.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3052, Feb. 8, 2019]
§ 30.417 What additional medical information may OWCP require to support continuing payment of benefits?
In all cases requiring hospital treatment or prolonged care, OWCP will request detailed narrative reports from
the attending physician at periodic intervals. The physician will be asked to
describe continuing medical treatment
for the occupational illness or covered
illness accepted by OWCP, a prognosis,
and the physician’s opinion as to the
continuing causal relationship between
the need for additional treatment and
the occupational illness or covered illness.
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§ 30.420
20 CFR Ch. I (4–1–20 Edition)
MEDICAL BILLS
§ 30.420 How should medical bills and
reimbursement requests be submitted?
Usually, medical providers submit
their bills directly for processing. The
rules for submitting and processing
provider bills and reimbursement requests are stated in subpart H of this
part. An employee requesting reimbursement for out-of-pocket medical
expenses must submit a Form OWCP–
915 and meet the requirements described in § 30.702.
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§ 30.421 What are the time frames for
submitting bills and reimbursement
requests?
To be considered for payment, bills
and reimbursement requests must be
submitted by the end of the calendar
year after the year when the expense
was incurred, or by the end of the calendar year after the year when OWCP
first accepted the claim as compensable under subpart D of this part,
whichever is later.
§ 30.422 If an employee is only partially reimbursed for a medical expense, must the provider refund the
balance of the amount paid to the
employee?
(a) The OWCP fee schedule sets maximum limits on the amounts payable
for many services. The employee may
be only partially reimbursed for out-ofpocket medical expenses because the
amount he or she paid to the medical
provider for a service exceeds the maximum allowable charge set by the
OWCP fee schedule.
(b) If this happens, the employee will
be advised of the maximum allowable
charge for the service in question and
of his or her responsibility to ask the
provider to refund to the employee, or
credit to the employee’s account, the
amount he or she paid that exceeds the
maximum allowable charge. The provider that the employee paid, but not
the employee, may request reconsideration of the fee determination as set
forth in § 30.712.
(c) If the provider does not refund to
the employee or credit to his or her account the amount of money paid in excess of the charge that OWCP allows,
the employee should submit docu-
mentation of the attempt to obtain
such refund or credit to OWCP. OWCP
may authorize reasonable reimbursement to the employee after reviewing
the facts and circumstances of the
case.
Subpart F—Survivors; Payments
and Offsets; Overpayments
SURVIVORS
§ 30.500 What special statutory definitions apply to survivors under
EEOICPA?
(a) For the purposes of paying compensation to survivors under both
Parts B and E of EEOICPA, OWCP will
use the following definitions:
(1) Surviving spouse means the wife or
husband of a deceased covered Part B
employee or deceased covered Part E
employee who was married to that individual for the 365 consecutive days
immediately prior to the death of that
individual.
(2) Child of a deceased covered Part B
employee or deceased covered Part E
employee means only a biological
child, a stepchild or an adopted child of
that individual.
(b) For the purposes of paying compensation to survivors only under Part
B of EEOICPA, OWCP will use the following additional definitions:
(1) Parent includes fathers and mothers of a deceased covered Part B employee through adoption.
(2) Grandchild means a child of a
child of a deceased covered Part B employee.
(3) Grandparent means a parent of a
parent of a deceased covered Part B
employee.
(c) For the purposes of paying compensation to survivors under Part E of
EEOICPA, OWCP will use the following
additional definitions:
(1) Covered child means a child that
is, as of the date of the deceased covered Part E employee’s death, either
under the age of 18 years, or under the
age of 23 years and a full-time student
who was continuously enrolled in one
or more educational institutions since
attaining the age of 18 years, or any
age and incapable of self-support. A
child’s marital status or dependency on
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Office of Workers’ Compensation Programs, Labor
the covered employee for support is irrelevant to his or her eligibility for
benefits as a covered child under Part
E.
(2) Incapable of self-support means
that the child must have been physically and/or mentally incapable of
self-support at the time of the covered
employee’s death.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3052, Feb. 8, 2019]
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§ 30.501 What order of precedence will
OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?
(a) Under Part B of the Act, if OWCP
determines that a survivor or survivors
are entitled to receive compensation
under EEOICPA because a covered Part
B employee who would otherwise have
been entitled to benefits is deceased,
that compensation will be disbursed as
follows, subject to the qualifications
set forth in § 30.5(hh)(3):
(1) If there is a surviving spouse, the
compensation shall be paid to that individual.
(2) If there is no surviving spouse, the
compensation shall be paid in equal
shares to all children of the deceased
covered Part B employee.
(3) If there is no surviving spouse and
no children, the compensation shall be
paid in equal shares to the parents of
the deceased covered Part B employee.
(4) If there is no surviving spouse, no
children and no parents, the compensation shall be paid in equal shares to all
grandchildren of the deceased covered
Part B employee.
(5) If there is no surviving spouse, no
children, no parents and no grandchildren, the compensation shall be
paid in equal shares to the grandparents of the deceased covered Part B
employee.
(6) Notwithstanding paragraphs (a)(1)
through (a)(5) of this section, if there is
a surviving spouse and at least one
child of the deceased covered Part B
employee who is a minor at the time of
payment and who is not a recognized
natural child or adopted child of such
surviving spouse, half of the compensation shall be paid to the surviving
spouse, and the other half of the compensation shall be paid in equal shares
§ 30.502
to each child of the deceased covered
Part B employee who is a minor at the
time of payment.
(b) Under Part E of the Act, if OWCP
determines that a survivor or survivors
are entitled to receive compensation
under EEOICPA because a covered Part
E employee who would otherwise have
been entitled to benefits is deceased,
that compensation will be disbursed as
follows, subject to the qualifications
set forth in § 30.5(hh)(3):
(1) If there is a surviving spouse, the
compensation shall be paid to that individual.
(2) If there is no surviving spouse, the
compensation shall be paid in equal
shares to all ‘‘covered’’ children of the
deceased covered Part E employee.
(3) Notwithstanding paragraphs (b)(1)
and (b)(2) of this section, if there is a
surviving spouse and at least one
‘‘covered’’ child of the deceased covered Part E employee who is living at
the time of payment and who is not a
recognized natural child or adopted
child of such surviving spouse, then
half of such payment shall be made to
such surviving spouse, and the other
half of such payment shall be made in
equal shares to each ‘‘covered’’ child of
the employee who is living at the time
of payment.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3052, Feb. 8, 2019]
§ 30.502 When is entitlement for survivors determined for purposes of
EEOICPA?
Entitlement to any lump-sum payment
for
survivors
under
the
EEOICPA, other than for ‘‘covered’’
children under Part E, will be determined as of the time OWCP makes such
a payment. As noted in § 30.500(c)(1), a
child of a deceased Part E employee
will only qualify as a ‘‘covered’’ child
of that individual if he or she satisfied
one of the additional statutory criteria
for a ‘‘covered’’ child as of the date of
the deceased Part E employee’s death.
[84 FR 3053, Feb. 8, 2019]
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§ 30.505
20 CFR Ch. I (4–1–20 Edition)
PAYMENT OF CLAIMS AND OFFSET FOR
CERTAIN PAYMENTS
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§ 30.505 What procedures will OWCP
follow before it pays any compensation?
(a) In cases involving the approval of
a claim, whether in whole or in part,
OWCP shall take all necessary steps to
determine the amount of any offset or
coordination of EEOICPA benefits before paying any benefits, and to verify
the identity of the covered Part B employee, the covered Part E employee,
or the eligible surviving beneficiary or
beneficiaries. To perform these tasks,
OWCP may conduct any investigation,
require any claimant to provide or execute any affidavit, record or document,
or authorize the release of any information as OWCP deems necessary to
ensure that the compensation payment
is made in the correct amount and to
the correct person or persons. OWCP
shall also require every claimant under
Part B of the Act to execute and provide any necessary affidavit described
in § 30.620 of these regulations. Should a
claimant fail or refuse to execute an
affidavit or release of information, or
fail or refuse to provide a requested
document or record or to provide access to information, such failure or refusal may be deemed to be a rejection
of the payment, unless the claimant
does not have and cannot obtain the
legal authority to provide, release, or
authorize access to the required information, records, or documents.
(b) To determine the amount of any
offset, OWCP shall require the covered
Part B employee, covered Part E employee or each eligible surviving beneficiary filing a claim under this part to
execute and provide an affidavit (or
declaration made under oath on Form
EE–1 or EE–2) reporting the amount of
any payment made pursuant to a final
judgment or settlement in litigation
seeking damages. Even if someone
other than the covered Part B employee or the covered Part E employee
receives a payment pursuant to a final
judgment or settlement in litigation
seeking damages (e.g., the surviving
spouse of a deceased covered Part B
employee or a deceased covered Part E
employee), the receipt of any such payment must be reported.
(1) For the purposes of this paragraph
(b) only, ‘‘litigation seeking damages’’
refers to any request or demand for
money (other than for workers’ compensation) by the covered Part B employee or the covered Part E employee,
or by another individual if the covered
Part B employee or the covered Part E
employee is deceased, made or sought
in a civil action or in anticipation of
the filing of a civil action, for injuries
incurred on account of an exposure for
which compensation is payable under
EEOICPA. This term does not also include any request or demand for money
made or sought pursuant to a life insurance or health insurance contract,
or any request or demand for money
made or sought by an individual other
than the covered Part B employee or
the covered Part E employee in that
individual’s own right (e.g., a spouse’s
claim for loss of consortium), or any
request or demand for money made or
sought by the covered Part B employee
or the covered Part E employee (or the
estate of a deceased covered Part B employee or deceased covered Part E employee) not for injuries incurred on account of an exposure for which compensation
is
payable
under
the
EEOICPA (e.g., a covered Part B employee’s or a covered Part E employee’s
claim for damage to real or personal
property).
(2) If a payment has been made pursuant to a final judgment or settlement in litigation seeking damages,
OWCP shall subtract a portion of the
dollar amount of such payment from
the benefit payments to be made under
EEOICPA. OWCP will calculate the
amount to be subtracted from the benefit payments in the following manner:
(i) OWCP will first determine the
value of the payment made pursuant to
either a final judgment or settlement
in litigation seeking damages by adding the dollar amount of any monetary
damages (excluding contingent awards)
and any medical expenses for treatment provided on or after the date the
covered Part B employee or the covered Part E employee filed a claim for
EEOICPA benefits that were paid for
under the final judgment or settlement. In the event that these payments include a ‘‘structured’’ settlement (where a party makes an initial
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Office of Workers’ Compensation Programs, Labor
cash payment and also arranges, usually through the purchase of an annuity, for payments in the future), OWCP
will usually accept the cost of the annuity to the purchaser as the dollar
amount of the right to receive the future payments.
(ii) OWCP will then make certain deductions from the above dollar amount
to arrive at the dollar amount to be
subtracted from any unpaid EEOICPA
benefits. Allowable deductions consist
of attorney’s fees OWCP deems reasonable, and itemized costs of suit (out-ofpocket expenditures not part of the
normal overhead of a law firm’s operation like filing fees, travel expenses,
witness fees, and court reporter costs
for transcripts) provided that adequate
supporting documentation is submitted
to OWCP.
(iii) The EEOICPA benefits that will
be reduced will consist of any unpaid
lump-sum payments payable in the future and medical benefits payable in
the future. In those cases where it has
not yet paid EEOICPA benefits, OWCP
will reduce such benefits on a dollarfor-dollar basis, beginning with the
lump-sum payments first. If the
amount to be subtracted exceeds the
lump-sum payments, OWCP will reduce
ongoing EEOICPA medical benefits
payable in the future by the amount of
any remaining surplus. This means
that OWCP will apply the amount it
would otherwise pay to reimburse the
covered Part B employee or the covered Part E employee for any ongoing
EEOICPA medical treatment to the remaining surplus until it is absorbed. In
addition to this reduction of ongoing
EEOICPA medical benefits, OWCP will
not be the first payer for any medical
expenses that are the responsibility of
another party (who will instead be the
first payer) as part of a final judgment
or settlement in litigation seeking
damages.
(3) The above reduction of EEOICPA
benefits will not occur if an EEOICPA
claimant had his or her award under
section 5 of RECA reduced by the full
amount of the payment made pursuant
to a final judgment or settlement in
litigation seeking damages. It will also
not occur if an EEOICPA claimant’s
prior payment of EEOICPA benefits, or
his or her workers’ compensation bene-
§ 30.506
fits, were offset to reflect the full
amount of the payment made pursuant
to a final judgment or settlement in
litigation seeking damages. However, if
the prior reduction or offset of the
above benefits did not reflect the full
amount of the payment made pursuant
to a final judgment or settlement in
litigation seeking damages, OWCP will
reduce currently payable EEOICPA
benefits by the amount of any surplus
final judgment or settlement payment
that remains.
(c) Except as provided in § 30.506(b) of
these regulations, when OWCP has
verified the identity of every claimant
who is entitled to the compensation
payment, or to a share of the compensation payment, and has determined the correct amount of the payment or the share of the payment,
OWCP shall notify every claimant,
every duly appointed guardian or conservator of a claimant, or every person
with power of attorney for a claimant,
and require such person or persons to
complete a Form EN–20 providing payment information. Such form shall be
signed and returned to OWCP within
sixty days of the date of the form or
within such greater period as may be
allowed by OWCP. Failure to sign and
return the form within the required
time may be deemed to be a rejection
of the payment. If the claimant dies before the payment is received, the person who receives the payment shall return it to OWCP for redetermination of
the correct disbursement of the payment. No payment shall be made until
OWCP has made a determination concerning the survivors related to a respective claim for benefits.
(d) The total amount of compensation (other than medical benefits)
under Part E that can be paid to all
claimants as a result of the exposure of
a covered Part E employee shall not be
more than $250,000 in any circumstances.
§ 30.506 To whom and in what manner
will OWCP pay compensation?
(a) Except with respect to claims
under Part B of the Act for beryllium
sensitivity, payment shall be made to
the covered Part B employee or the
covered Part E employee, to the duly
appointed guardian or conservator of
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§ 30.507
20 CFR Ch. I (4–1–20 Edition)
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that individual, or to the person with
power of attorney for that individual,
unless the covered Part B employee or
covered Part E employee is deceased at
the time of the payment. In all cases
involving a deceased covered Part B
employee or deceased covered Part E
employee, payment shall be made to
the eligible surviving beneficiary or
beneficiaries, to the duly appointed
guardian or conservator of the eligible
surviving beneficiary or beneficiaries,
or to every person with power of attorney for an eligible surviving beneficiary, in accordance with the terms
and conditions specified in sections
7384s(e), 7384u(e), and 7385s–3(c) and (d)
of EEOICPA.
(b) Under Part B of the Act, compensation for any consequential injury,
illness, impairment or disease is limited to payment of medical benefits for
that injury, illness, impairment or disease. Under Part E of the Act, compensation for any consequential injury,
illness, impairment or disease consists
of medical benefits for that injury, illness, impairment or disease, as well as
any additional monetary benefits that
are consistent with the terms of
§ 30.505(d).
(c) Rejected compensation payments,
or shares of compensation payments,
shall not be distributed to other eligible surviving beneficiaries, but shall be
returned to the Fund.
(d) No covered Part B employee may
receive more than one lump-sum payment under Part B of EEOICPA for any
occupational illnesses he or she contracted. However, any individual, including a covered Part B employee who
has received a lump-sum payment for
his or her own occupational illness or
illnesses, may receive one lump-sum
payment for each deceased covered
Part B employee for whom he or she
qualifies as an eligible surviving beneficiary under Part B of the Act.
§ 30.507 What compensation will be
provided to covered Part B employees who only establish beryllium
sensitivity
under
Part
B
of
EEOICPA?
The establishment of beryllium sensitivity does not entitle a covered Part
B employee, or the eligible surviving
beneficiary or beneficiaries of a deceased covered Part B employee, to any
lump-sum payment provided for under
Part B. Instead, a covered Part B employee whose sole accepted occupational illness is beryllium sensitivity
shall receive beryllium sensitivity
monitoring, as well as medical benefits
for the treatment of this occupational
illness in accordance with § 30.400 of
these regulations.
§ 30.508 What is beryllium sensitivity
monitoring?
Beryllium sensitivity monitoring
shall consist of medical examinations
to confirm and monitor the extent and
nature of a covered Part B employee’s
beryllium sensitivity. Monitoring shall
also include regular medical examinations, with diagnostic testing, to determine if the covered Part B employee
has established chronic beryllium disease.
§ 30.509 Under what circumstances
may a survivor claiming under Part
E of the Act choose to receive the
benefits that would otherwise be
payable to a covered Part E employee who is deceased?
(a) If a covered Part E employee dies
after filing a claim but before monetary benefits are paid under Part E of
the Act, and his or her death is from a
cause other than a covered illness, his
or her survivor can choose to receive
either the survivor benefits payable on
account of the death of that covered
Part E employee, or the monetary benefits that would otherwise have been
payable to the covered Part E employee.
(b) For the purposes of this section
only, a death ‘‘from a cause other than
a covered illness’’ refers only to a
death that was solely caused by a noncovered illness or illnesses. Therefore,
the choice referred to in paragraph (a)
of this section will not be available if a
covered illness contributed to the
death of the covered Part E employee
in any manner. In those instances, survivor benefits will still be payable to
the claimant, but he or she cannot
choose to receive the monetary benefits that would have otherwise been
payable to the deceased covered Part E
employee in lieu of survivor benefits.
(c) OWCP only makes impairment determinations based on rationalized
medical evidence in the case file that is
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sufficiently detailed and meets the various requirements for the many different types of impairment determinations possible under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s
Guides). Therefore, OWCP will only
make an impairment determination for
a deceased covered Part E employee
pursuant to this section if the medical
evidence of record is sufficient to satisfy the pertinent requirements in the
AMA’s Guides and subpart J of this
part.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3053, Feb. 8, 2019]
OVERPAYMENTS
§ 30.510 How does OWCP notify an individual of a payment made on a
claim?
(a) In addition to providing narrative
descriptions to recipients of benefits
paid or payable, OWCP includes on
each check a clear indication of the
reason the payment is being made. For
payments sent by electronic funds
transfer, a notification of the date and
amount of payment appears on the
statement from the recipient’s financial institution.
(b) By these means, OWCP puts the
recipient on notice that a payment was
made and the amount of the payment.
If the amount received differs from the
amount indicated on the written notice
or bank statement, the recipient is responsible for notifying OWCP of the
difference. Absent affirmative evidence
to the contrary, the recipient will be
presumed to have received the notice
of payment, whether mailed or transmitted electronically.
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§ 30.511 What is an ‘‘overpayment’’ for
purposes of EEOICPA?
An ‘‘overpayment’’ is any amount of
compensation paid under sections
7384s, 7384t, 7384u, 7385s–2 or 7385s–3 of
the EEOICPA to a recipient that constitutes, as of the time OWCP makes
such payment:
(a) Payment where no amount is payable under this part; or
(b) Payment in excess of the correct
amount determined by OWCP.
§ 30.513
§ 30.512 What does OWCP do when an
overpayment is identified?
Before seeking to recover an overpayment or adjust benefits, OWCP will advise the recipient of the overpayment
in writing that:
(a) The overpayment exists, and the
amount of overpayment;
(b) A preliminary finding shows either that the recipient was or was not
at fault in the creation of the overpayment;
(c) He or she has the right to inspect
and copy OWCP records relating to the
overpayment; and
(d) He or she has the right to present
written evidence which challenges the
fact or amount of the overpayment,
and/or challenges the preliminary finding that he or she was at fault in the
creation of the overpayment. He or she
may also request that recovery of the
overpayment be waived. Any submission of evidence or request that recovery of the overpayment be waived must
be presented to OWCP within 30 days of
the date of the written notice of overpayment.
§ 30.513 Under what circumstances
may OWCP waive recovery of an
overpayment?
(a) OWCP may consider waiving recovery of an overpayment only if the
recipient was not at fault in accepting
or creating the overpayment. Recipients of benefits paid under EEOICPA
are responsible for taking all reasonable measures to ensure that payments
received from OWCP are proper. The
recipient must show good faith and exercise a high degree of care in reporting events which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to
a material fact which he or she knew
or should have known to be incorrect;
or
(2) Failed to provide information
which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or
she knew or should have known to be
incorrect. (This provision applies only
to the overpaid individual.)
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§ 30.514
20 CFR Ch. I (4–1–20 Edition)
(b) Whether or not OWCP determines
that a recipient was at fault with respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with
the complexity of those circumstances
and the recipient’s capacity to realize
that he or she is being overpaid.
§ 30.514 If OWCP finds that the recipient of an overpayment was not at
fault, what criteria are used to decide whether to waive recovery of
it?
If OWCP finds that the recipient of
an overpayment was not at fault, repayment will still be required unless:
(a) Adjustment or recovery of the
overpayment would defeat the purpose
of the Act (see § 30.516); or
(b) Adjustment or recovery of the
overpayment would be against equity
and good conscience (see § 30.517).
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§ 30.515 Is a recipient responsible for
an overpayment that resulted from
an error made by OWCP?
(a) The fact that OWCP may have
erred in making the overpayment does
not by itself relieve the recipient of the
overpayment from liability for repayment if the recipient also was at fault
in accepting the overpayment.
(b) However, OWCP may find that the
recipient was not at fault if failure to
report an event affecting compensation
benefits, or acceptance of an incorrect
payment, occurred because:
(1) The recipient relied on misinformation given in writing by OWCP
regarding the interpretation of a pertinent provision or EEOICPA of this
part; or
(2) OWCP erred in calculating either
the percentage of impairment or wageloss under Part E of EEOICPA.
§ 30.516 Under what circumstances
would recovery of an overpayment
defeat the purpose of the Act?
Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to the recipient because:
(a) The recipient from whom OWCP
seeks recovery needs substantially all
of his or her current income to meet
current ordinary and necessary living
expenses; and
(b) The recipient’s assets do not exceed two months’ expenditures as determined by OWCP using the Bureau of
Labor Statistics Consumer Expenditure Survey tables.
§ 30.517 Under what circumstances
would recovery of an overpayment
be against equity and good conscience?
(a) Recovery of an overpayment is
considered to be against equity and
good conscience when the recipient
would experience severe financial hardship in attempting to repay the debt.
(b) Recovery of an overpayment is
also considered to be against equity
and good conscience when the recipient, in reliance on such payments or on
notice that such payments would be
made, gives up a valuable right or
changes his or her position for the
worse. In making such a decision,
OWCP does not consider the recipient’s
current ability to repay the overpayment.
(1) To establish that a valuable right
has been relinquished, it must be
shown that the right was in fact valuable, that it cannot be regained, and
that the action was based chiefly or
solely in reliance on the payments or
on the notice of payment. Gratuitous
transfers of funds to other individuals
are not considered relinquishments of
valuable rights.
(2) To establish that a recipient’s position has changed for the worse, it
must be shown that the decision made
would not otherwise have been made
but for the receipt of benefits, and that
this decision resulted in a loss.
§ 30.518 Can OWCP require the recipient of the overpayment to submit
additional financial information?
(a) The recipient of the overpayment
is responsible for providing information about income, expenses and assets
as specified by OWCP. This information
is needed to determine whether or not
recovery of an overpayment would defeat the purpose of the Act, or would be
against equity and good conscience.
This information will also be used to
determine the repayment schedule, if
necessary.
(b) Failure to submit this requested
information within 30 days of the request shall result in denial of waiver,
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and no further request for waiver shall
be considered until the requested information is furnished.
§ 30.519 How does OWCP communicate
its final decision concerning recovery of an overpayment?
(a) After considering any written
documentation or argument submitted
to OWCP within the 30-day period set
out in § 30.512(d), OWCP will issue a
final decision on the overpayment.
OWCP will send a copy of the final decision to the individual from whom recovery is sought and his or her representative, if any.
(b) The provisions of subpart D of
this part do not apply to any decision
regarding the recovery of an overpayment.
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§ 30.520 How are overpayments collected?
(a) When an overpayment has been
made to a recipient who is entitled to
further payments, the recipient shall
refund to OWCP the amount of the
overpayment as soon as the error is
discovered or his or her attention is
called to same. If no refund is made,
OWCP shall recover the overpayment
by reducing any further lump-sum payments due currently or in the future,
taking into account the financial circumstances of the recipient, and any
other relevant factors, so as to minimize any hardship. Should the recipient die before collection has been completed, further collection shall be made
by decreasing later payments, if any,
payable under EEOICPA with respect
to the underlying occupational illness
or covered illness.
(b) When an overpayment has been
made to a recipient and OWCP is unable to recover the overpayment by reducing compensation due currently,
the recipient shall refund to OWCP the
amount of the overpayment as soon as
the error is discovered or his or her attention is called to same. The overpayment is subject to the provisions of the
Federal Claims Collection Act of 1966,
as amended (31 U.S.C. 3701 et seq.), and
may be reported to the Internal Revenue Service as income. If the recipient
fails to make such refund, OWCP may
recover the overpayment through any
available means, including offset of
§ 30.600
salary, annuity benefits, or other Federal payments, including tax refunds as
authorized by the Tax Refund Offset
Program, or referral of the debt to a
collection agency or to the Department
of Justice.
Subpart G—Special Provisions
REPRESENTATION
§ 30.600 May a claimant designate a
representative?
(a) The claims process under this
part is informal, and OWCP acts as an
impartial evaluator of the evidence. A
claimant need not be represented to
file a claim or receive a payment. Nevertheless, a claimant may appoint one
individual to represent his or her interests, but the appointment must be in
writing.
(b) There can be only one representative at any one time, so after one representative has been properly appointed, OWCP will not recognize another individual as a representative
until the claimant withdraws the authorization of the first individual. In
addition, OWCP will recognize only
certain types of individuals (see
§ 30.601). For the purposes of paragraph
(b) of this section, a ‘‘representative’’
does not include a person who only has
a power of attorney to act on behalf of
a claimant.
(c) A properly appointed representative who is recognized by OWCP may
make a request or give direction to
OWCP regarding the claims process, including a hearing. This authority includes presenting or eliciting evidence,
making arguments on facts or the law,
and obtaining information from the
case file, to the same extent as the
claimant.
(1) Any notice requirement contained
in this part or EEOICPA is fully satisfied if served on the representative, and
has the same force and effect as if sent
to the claimant.
(2) A representative does not have authority to sign the Form EE–1 (described in § 30.100(a)) or the Form EE–2
(described in § 30.101(a)) for his or her
client. A representative also does not
have authority to sign the Form EN–20
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§ 30.601
20 CFR Ch. I (4–1–20 Edition)
(described in § 30.505(c)) for his or her
client
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3053, Feb. 8, 2019]
§ 30.601 Who may serve as a representative?
A claimant may authorize any individual to represent him or her in regard to a claim under EEOICPA, unless
that individual’s service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and
208) or the standards regarding conflicts of interest adopted by OWCP.
Under those standards, authorized representatives are prohibited from having private, non-representational financial interests with respect to their
client’s EEOICPA claims. This does not
include their fee for serving as a representative. A Federal employee may
act as a representative only:
(a) On behalf of immediate family
members, defined as a spouse, children,
parents, and siblings of the representative, provided no fee or gratuity is
charged; or
(b) While acting as a union representative, defined as any officially sanctioned union official, and no fee or gratuity is charged.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3053, Feb. 8, 2019]
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§ 30.602 Who is responsible for paying
the representative’s fee?
A representative may charge the
claimant a fee for services and for costs
associated with the representation before OWCP. The claimant is solely responsible for paying the fee and other
costs. OWCP will not reimburse the
claimant, nor is it in any way liable for
the amount of the fee and costs.
§ 30.603 Are there any limitations on
what the representative may charge
the claimant for his or her services?
(a) Notwithstanding any contract,
the representative may not receive, for
services rendered in connection with a
claim pending before OWCP, more than
the percentages of the lump-sum payment made to the claimant set out in
paragraph (b) of this section, exclusive
of costs and expenses.
(b) The percentages referred to in
paragraph (a) of this section are:
(1) 2 percent for the filing of an initial claim with OWCP, provided that
the representative was retained prior
to the filing of the initial claim; plus
(2) 10 percent of the difference between the lump-sum payment made to
the claimant and the amount proposed
in the recommended decision with respect to objections to a recommended
decision.
(c)(1) Any representative who violates this section shall be fined not
more than $5,000.
(2) The authority to prosecute violations of this limitation lies with the
Department of Justice.
(d) The fee limitations described in
this section shall not apply with respect to representative services that
are rendered in connection with a petition filed with a U.S. District Court
seeking review of an OWCP decision
that is final pursuant to § 30.316(d), or
with respect to any subsequent appeal
in such a proceeding.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3053, Feb. 8, 2019]
THIRD PARTY LIABILITY
§ 30.605 What rights does the United
States have upon payment of compensation under EEOICPA?
If an occupational illness or covered
illness for which compensation is payable under EEOICPA is caused, wholly
or partially, by someone other than a
federal employee acting within the
scope of his or her employment, a DOE
contractor or subcontractor, a beryllium vendor, an atomic weapons employer or a RECA section 5 mine or
mill, the United States is subrogated
for the full amount of any payment of
compensation under EEOICPA to any
right or claim that the individual to
whom the payment was made may have
against any person or entity on account of such occupational illness or
covered illness.
§ 30.606 Under what circumstances
must a recovery of money or other
property in connection with an illness for which benefits are payable
under EEOICPA be reported to
OWCP?
Any person who has filed an
EEOICPA claim that has been accepted
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Office of Workers’ Compensation Programs, Labor
by OWCP (whether or not compensation has been paid), or who has received EEOICPA benefits in connection
with a claim filed by another, is required to notify OWCP of the receipt of
money or other property as a result of
a settlement or judgment in connection with the circumstances of that
claim.
§ 30.607 How is a structured settlement (that is, a settlement providing for receipt of funds over a
specified period of time) treated for
purposes of reporting the recovery?
In this situation, the recovery to be
reported is the present value of the
right to receive all of the payments included in the structured settlement, allocated in the case of multiple recipients in the same manner as single payment recoveries.
§ 30.608 How does the United States
calculate the amount to which it is
subrogated?
The subrogated amount of a specific
claim consists of the total money paid
by OWCP from the Energy Employees
Occupational
Illness
Compensation
Fund with respect to that claim to or
on behalf of a covered Part B employee,
a covered Part E employee or an eligible surviving beneficiary, less charges
for any medical file review (i.e., the
physician did not examine the employee) done at the request of OWCP.
Charges for medical examinations also
may be subtracted if the covered Part
B employee, covered Part E employee
or an eligible surviving beneficiary establishes that the examinations were
required to be made available to the
covered Part B employee or covered
Part E employee under a statute other
than EEOICPA.
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§ 30.609 Is a settlement or judgment
received as a result of allegations of
medical malpractice in treating an
illness covered by EEOICPA a recovery that must be reported to
OWCP?
Since an injury caused by medical
malpractice in treating an occupational illness or covered illness compensable under EEOICPA is also covered under EEOICPA, any recovery in a
suit alleging such an injury is treated
§ 30.611
as a recovery that must be reported to
OWCP.
§ 30.610 Are payments to a covered
Part B employee, a covered Part E
employee or an eligible surviving
beneficiary as a result of an insurance policy which the employee or
eligible surviving beneficiary has
purchased a recovery that must be
reported to OWCP?
Since payments received by a covered Part B employee, a covered Part E
employee or an eligible surviving beneficiary pursuant to an insurance policy
purchased by someone other than a liable third party are not payments in
satisfaction of liability for causing an
occupational illness or covered illness
compensable under the Act, they are
not considered a recovery that must be
reported to OWCP.
§ 30.611 If a settlement or judgment is
received for more than one medical
condition, can the amount paid on a
single EEOICPA claim be attributed
to different conditions for purposes
of calculating the amount to which
the United States is subrogated?
(a) All medical conditions accepted
by OWCP in connection with a single
claim are treated as the same illness
for the purpose of computing the
amount which the United States is entitled to offset in connection with the
receipt of a recovery from a third
party, except that an injury caused by
medical malpractice in treating an illness covered under EEOICPA will be
treated as a separate injury.
(b) If an illness covered under
EEOICPA
is
caused
under
circumstances creating a legal liability in
more than one person, other than the
United States, a DOE contractor or
subcontractor, a beryllium vendor or
an atomic weapons employer, to pay
damages, OWCP will determine whether recoveries received from one or more
third parties should be attributed to
separate conditions for which compensation is payable in connection
with a single EEOICPA claim. If such
an attribution is both practicable and
equitable, as determined by OWCP, in
its discretion, the conditions will be
treated as separate injuries for purposes of calculating the amount to
which the United States is subrogated.
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§ 30.615
20 CFR Ch. I (4–1–20 Edition)
EFFECT OF TORT SUITS AGAINST BERYLLIUM VENDORS AND ATOMIC WEAPONS
EMPLOYERS
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§ 30.615 What type of tort suits filed
against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of
EEOICPA?
(a) A tort suit (other than an administrative or judicial proceeding for
workers’ compensation) that includes a
claim arising out of a covered Part B
employee’s employment-related exposure to beryllium or radiation, filed
against a beryllium vendor or an atomic weapons employer, by a covered Part
B employee or an eligible surviving
beneficiary or beneficiaries of a deceased covered Part B employee, will
disqualify that otherwise eligible individual or individuals from receiving
benefits under Part B of EEOICPA unless such claim is terminated in accordance with the requirements of
§§ 30.616 through 30.619 of these regulations.
(b) The term ‘‘claim arising out of a
covered Part B employee’s employment-related exposure to beryllium or
radiation’’ used in paragraph (a) of this
section includes a claim that is derivative of a covered Part B employee’s
employment-related exposure to beryllium or radiation, such as a claim for
loss of consortium raised by a covered
Part B employee’s spouse.
(c) If all claims arising out of a covered Part B employee’s employmentrelated exposure to beryllium or radiation are terminated in accordance
with the requirements of §§ 30.616
through 30.619 of these regulations,
proceeding with the remaining portion
of the tort suit filed against a beryllium vendor or an atomic weapons employer will not disqualify an otherwise
eligible individual or individuals from
receiving benefits under Part B of
EEOICPA.
§ 30.616 What happens if this type of
tort suit was filed prior to October
30, 2000?
(a) If a tort suit described in § 30.615
was filed prior to October 30, 2000, the
claimant or claimants will not be disqualified from receiving any EEOICPA
benefits to which they may be found
entitled if the tort suit was terminated
in any manner prior to December 28,
2001.
(b) If a tort suit described in § 30.615
was filed prior to October 30, 2000 and
was pending as of December 28, 2001,
the claimant or claimants will be disqualified from receiving any benefits
under Part B of EEOICPA unless they
dismissed all claims arising out of a
covered Part B employee’s employment-related exposure to beryllium or
radiation that were included in the
tort suit prior to December 31, 2003.
§ 30.617 What happens if this type of
tort suit was filed during the period
from October 30, 2000 through December 28, 2001?
(a) If a tort suit described in § 30.615
was filed during the period from October 30, 2000 through December 28, 2001,
the claimant or claimants will be disqualified from receiving any benefits
under Part B of EEOICPA unless they
dismiss all claims arising out of a covered Part B employee’s employmentrelated exposure to beryllium or radiation that are included in the tort suit
on or before the last permissible date
described in paragraph (b) of this section.
(b) The last permissible date is the
later of:
(1) April 30, 2003; or
(2) The date that is 30 months after
the date the claimant or claimants
first became aware that an illness of
the covered Part B employee may be
connected to his or her exposure to beryllium or radiation covered by
EEOICPA. For purposes of determining
when this 30-month period begins, ‘‘the
date the claimant or claimants first became aware’’ will be deemed to be the
date they received either a reconstructed dose from NIOSH, or a diagnosis of a covered beryllium illness, as
applicable.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3053, Feb. 8, 2019]
§ 30.618 What happens if this type of
tort suit was filed after December
28, 2001?
(a) If a tort suit described in § 30.615
was filed after December 28, 2001, the
claimant or claimants will be disqualified from receiving any benefits under
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Office of Workers’ Compensation Programs, Labor
Part B of EEOICPA if a judgment is entered against them.
(b) If a tort suit described in § 30.615
was filed after December 28, 2001 and a
judgment has not yet been entered
against the claimant or claimants,
they will also be disqualified from receiving any benefits under Part B of
EEOICPA unless, prior to entry of any
judgment, they dismiss all claims arising out of a covered Part B employee’s
employment-related exposure to beryllium or radiation that are included in
the tort suit on or before the last permissible date described in paragraph
(c) of this section.
(c) The last permissible date is the
later of:
(1) April 30, 2003; or
(2) The date that is 30 months after
the date the claimant or claimants
first became aware that an illness of
the covered Part B employee may be
connected to his or her exposure to beryllium or radiation covered by
EEOICPA. For purposes of determining
when this 30-month period begins, ‘‘the
date the claimant or claimants first became aware’’ will be deemed to be the
date they received either a reconstructed dose from NIOSH, or a diagnosis of a covered beryllium illness, as
applicable.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3053, Feb. 8, 2019]
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§ 30.619 Do all the parties to this type
of tort suit have to take these actions?
The type of tort suits described in
§ 30.615 may be filed by more than one
individual, each with a different cause
of action. For example, a tort suit may
be filed against a beryllium vendor by
both a covered Part B employee and his
or her spouse, with the covered Part B
employee claiming for chronic beryllium disease and the spouse claiming
for loss of consortium due to the covered Part B employee’s exposure to beryllium. However, since the spouse of a
living covered Part B employee could
not be an eligible surviving beneficiary
under Part B of EEOICPA, the spouse
would not have to comply with the termination requirements of §§ 30.616
through 30.618. A similar result would
occur if a tort suit were filed by both
§ 30.625
the spouse of a deceased covered Part B
employee and other family members
(such as children of the deceased covered part B employee). In this case, the
spouse would be the only eligible surviving beneficiary of the deceased covered Part B employee under Part B of
the EEOICPA because the other family
members could not be eligible for benefits while he or she was alive. As a result, the spouse would be the only
party to the tort suit who would have
to comply with the termination requirements of §§ 30.616 through 30.618.
§ 30.620 How will OWCP ascertain
whether a claimant filed this type
of tort suit and if he or she has
been disqualified from receiving
any benefits under Part B of
EEOICPA?
Prior to authorizing payment on a
claim under Part B of EEOICPA, OWCP
will require each claimant to execute
and provide an affidavit stating if he or
she filed a tort suit (other than an administrative or judicial proceeding for
workers’ compensation) against either
a beryllium vendor or an atomic weapons employer that included a claim
arising out of a covered Part B employee’s employment-related exposure to
beryllium or radiation, and if so, the
current status of such tort suit. OWCP
may also require the submission of any
supporting evidence necessary to confirm the particulars of any affidavit
provided under this section.
COORDINATION OF PART E BENEFITS
WITH STATE WORKERS’ COMPENSATION
BENEFITS
§ 30.625 What does ‘‘coordination of
benefits’’ mean under Part E of
EEOICPA?
In general, ‘‘coordination of benefits’’
under Part E of the Act occurs when
compensation to be received under
Part E is reduced by OWCP, pursuant
to section 7385s–11 of EEOICPA, to reflect certain benefits the beneficiary
receives under a state workers’ compensation program for the same covered illness.
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§ 30.626
20 CFR Ch. I (4–1–20 Edition)
§ 30.626 How will OWCP coordinate
compensation payable under Part E
of EEOICPA with benefits from
state workers’ compensation programs?
(a) OWCP will reduce the compensation payable under Part E by the
amount of benefits the claimant receives from a state workers’ compensation program by reason of the same
covered illness, after deducting the
reasonable costs to the claimant of obtaining those benefits.
(b) To determine the amount of any
reduction of EEOICPA compensation,
OWCP shall require the covered Part E
employee or each eligible surviving
beneficiary filing a claim under Part E
to execute and provide affidavits reporting the amount of any benefit received pursuant to a claim filed in a
state workers’ compensation program
for the same covered illness.
(c) If a covered Part E employee or a
survivor of such employee receives benefits through a state workers’ compensation program pursuant to a claim
for the same covered illness, OWCP
shall reduce a portion of the dollar
amount of such state workers’ benefit
from the compensation payable under
Part E. OWCP will calculate the net
amount of the state workers’ compensation benefit amount to be subtracted from the compensation payment under Part E in the following
manner:
(1) OWCP will first determine the
dollar value of the benefits received by
that individual from a state workers’
compensation program by including all
benefits, other than medical and vocational rehabilitation benefits, received
for the same covered illness or injury
sustained as a consequence of a covered
illness.
(2) OWCP will then make certain deductions from the above dollar benefit
received under a state workers’ compensation program to arrive at the dollar amount that will be subtracted
from any compensation payable under
Part E of EEOICPA.
(i) Allowable deductions consist of
reasonable costs in obtaining state
workers’ compensation benefits incurred by that individual, including
but not limited to attorney’s fees
OWCP deems reasonable and itemized
costs of suit (out-of-pocket expenditures not part of the normal overhead
of a law firm’s operation like filing,
travel expenses, witness fees, and court
reporter costs for transcripts), provided
that adequate supporting documentation is submitted to OWCP for its consideration.
(ii) The EEOICPA benefits that will
be reduced will consist of any unpaid
monetary payments payable in the future and medical benefits payable in
the future. In those cases where it has
not yet paid EEOICPA benefits under
Part E, OWCP will reduce such benefits
on a dollar-for-dollar basis, beginning
with the current monetary payments
first. If the amount to be subtracted
exceeds the monetary payments currently payable, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any
remaining surplus. This means that
OWCP will apply the amount it would
otherwise pay to reimburse the covered
Part E employee for any ongoing
EEOICPA medical treatment to the remaining surplus until it is absorbed (or
until further monetary benefits become
payable that are sufficient to absorb
the surplus).
(3) The above coordination of benefits
will not occur if the beneficiary under
a state workers’ compensation program
receives state workers’ compensation
benefits for both a covered and a noncovered illness arising out of and in the
course of the same work-related incident.
§ 30.627 Under what circumstances
will OWCP waive the statutory requirement to coordinate these benefits?
A waiver to the requirement to coordinate Part E benefits with benefits
paid under a state workers’ compensation program may be granted if OWCP
determines that the administrative
costs and burdens of coordinating benefits in a particular case or class of
cases justifies the waiver. This decision
is exclusively within the discretion of
OWCP.
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Office of Workers’ Compensation Programs, Labor
Subpart H—Information for
Medical Providers
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MEDICAL RECORDS AND BILLS
§ 30.700 In general, what responsibilities do providers have with respect
to enrolling with OWCP, seeking
authorization to provide services,
billing, and retaining medical
records?
(a) All providers must enroll with
OWCP or its designated bill processing
agent (hereinafter OWCP in this subpart) to have access to the automated
authorization system and to submit
medical bills to OWCP. To enroll, the
provider must complete and submit a
Form OWCP–1168 to the appropriate location noted on that form. By completing and submitting this form, providers certify that they satisfy all applicable Federal and state licensure
and regulatory requirements that
apply to their specific provider or supplier type. The provider must maintain
documentary evidence indicating that
it satisfies those requirements. The
provider is also required to notify
OWCP immediately if any information
provided to OWCP in the enrollment
process changes. Federal government
medical officers, private physicians
and hospitals are also required to keep
records of all cases treated by them
under EEOICPA so they can supply
OWCP with a history of the claimed occupational illness or covered illness, a
description of the nature and extent of
the claimed occupational illness or
covered illness, the results of any diagnostic studies performed and the nature of the treatment rendered. This
requirement terminates after a provider has supplied OWCP with the
above-noted information, and otherwise terminates ten years after the
record was created.
(b) Where a medical provider intends
to bill for a procedure where prior authorization is required, authorization
must be requested from OWCP.
(c) After enrollment, a provider must
submit all medical bills to OWCP
through its bill processing portal and
include the Provider Number/ID obtained through enrollment or other
identifying number required by OWCP.
[84 FR 3053, Feb. 8, 2019]
§ 30.701
§ 30.701 How are medical bills to be
submitted?
(a) All charges for medical and surgical treatment, appliances or supplies
furnished to employees, except for
treatment and supplies provided by
nursing homes, shall be supported by
medical evidence as provided in § 30.700.
OWCP may withhold payment for services until such report or evidence is
provided. The physician or provider
shall itemize the charges on Form
OWCP–1500 or CMS–1500 (for professional charges or medicinal drugs dispensed in the office), Form OWCP–04 or
UB–04 (for hospitals), an electronic or
paper-based bill that includes required
data elements (for pharmacies) or
other form as warranted, and submit
the form or bill promptly to OWCP.
(b) The provider shall identify each
service performed using the Physician’s Current Procedural Terminology
(CPT) code, the Healthcare Common
Procedure Coding System (HCPCS)
code, the National Drug Code (NDC)
number, or the Revenue Center Code
(RCC), with a brief narrative description. OWCP has discretion to determine which of these codes may be utilized in the billing process. OWCP also
has the authority to create and supply
specific procedure codes that will be
used by OWCP to better describe and
allow specific payments for special
services. These OWCP-created codes
will be issued to providers by OWCP as
appropriate and may only be used as
authorized by OWCP. For example, a
physician conducting a referee or second opinion examination as described
in §§ 30.410 through 30.412 will be furnished an OWCP-created code. A provider may not use an OWCP-created
code for other types of medical examinations or services. When no code is
submitted to identify the services performed, the bill will be returned to the
provider and/or denied.
(c) For professional charges billed on
Form OWCP–1500 or CMS–1500, the provider shall also state each diagnosed
condition
and
furnish
the
corresponding diagnostic code using the
‘‘International Classification of Disease, 9th Edition, Clinical Modification’’ (ICD–9–CM), or as revised. A separate bill shall be submitted when the
employee is discharged from treatment
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§ 30.702
20 CFR Ch. I (4–1–20 Edition)
or monthly, if treatment for the occupational illness or covered illness is
necessary for more than 30 days.
(1)(i) Hospitals shall submit charges
for both inpatient and outpatient medical and surgical treatment or supplies
promptly to OWCP on Form OWCP–04
or UB–04.
(ii) OWCP may adopt a Home Health
Prospective
Payment
System
(HHPPS), as developed and implemented by the Centers for Medicare
and Medicaid Services (CMS) within
HHS for Medicare, while modifying the
allowable costs under Medicare to account for deductibles and other additional costs that are covered by
EEOICPA. If adopted, home health care
providers will be required to submit
bills on Form OWCP–04 or UB–04 and to
use Health Insurance Prospective Payment System codes and other coding
schemes.
(2) Pharmacies shall itemize charges
for prescription medications, appliances or supplies on electronic or
paper-based bills and submit them
promptly to OWCP. Bills for prescription medications must include all required data elements, including the
NDC number assigned to the product,
the generic or trade name of the drug
provided, the prescription number, the
quantity provided, and the date the
prescription was filled.
(3) Nursing homes shall itemize
charges for appliances, supplies or services on the provider’s billhead stationery and submit them promptly to
OWCP. Such charges shall be subject to
any applicable OWCP fee schedule.
(d) By submitting a bill and/or accepting payment, the provider signifies
that the service for which payment is
sought was performed as described and
was necessary, appropriate and properly billed in accordance with accepted
industry standards. For example, accepted industry standards preclude
upcoding billed services for extended
medical appointments when the employee actually had a brief routine appointment, or charging for the services
of a professional when a paraprofessional or aide performed the service.
Also, industry standards prohibit
unbundling services to charge separately for services that should be billed
as a single charge. In addition, the pro-
vider thereby agrees to comply with all
regulations set forth in this subpart
concerning the rendering of treatment
and/or the process for seeking payment
for medical services, including the limitation imposed on the amount to be
paid for such services.
(e) In summary, bills submitted by
providers must: Be itemized on Form
OWCP–1500 or CMS–1500 (for physicians), Form OWCP–04 or UB–04 (for
hospitals), or an electronic or paperbased bill that includes required data
elements (for pharmacies); contain the
handwritten or electronic signature of
the provider when required; and identify the procedures using HCPCS/CPT
codes, RCCs or NDC numbers. Otherwise, OWCP may deny the bill, and the
provider must correct and resubmit the
bill. The decision of OWCP whether to
pay a provider’s bill is final when
issued and is not subject to the adjudicatory process described in subpart D
of this part.
[84 FR 3053, Feb. 8, 2019]
§ 30.702 How should an employee prepare and submit requests for reimbursement for medical expenses,
transportation costs, loss of wages,
and incidental expenses?
(a) If an employee has paid bills for
medical, surgical or other services,
supplies or appliances provided by a
professional due to an occupational illness or a covered illness, he or she
must submit a request for reimbursement on Form OWCP–915, together
with an itemized bill on Form OWCP–
1500 or CMS–1500 prepared by the provider, or Form OWCP–04 or UB–04 prepared by the provider, and a medical
report as provided in § 30.700, to OWCP
for consideration.
(1) The provider of such service shall
state each diagnosed condition and furnish the applicable ICD–9–CM code, or
as revised, and identify each service
performed using the applicable HCPCS/
CPT code, with a brief narrative description of the service performed, or,
where no code is applicable, a detailed
description of that service. If no code
or description is received, OWCP will
deny the reimbursement request, and
correction and resubmission will be required.
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Office of Workers’ Compensation Programs, Labor
(2) The reimbursement request must
be accompanied by evidence that the
provider received payment for the service from the employee and a statement
of the amount paid. Acceptable evidence that payment was received includes, but is not limited to, a signed
statement by the provider, a mechanical stamp or other device showing receipt of payment, a copy of the employee’s canceled check (both front and
back), a copy of the employee’s credit
card receipt or a provider billing form
indicating a zero balance due.
(b) If a pharmacy or nursing home
provided services for which the employee paid, the employee must also
use Form OWCP–915 to request reimbursement and should submit the request in accordance with the provisions
of § 30.701(a). Any such request for reimbursement must be accompanied by
evidence, as described in paragraph
(a)(2) of this section, that the provider
received payment for the service from
the employee and a statement of the
amount paid.
(c) OWCP may waive the requirements of paragraphs (a) and (b) of this
section if extensive delays in the filing
or the adjudication of a claim make it
unusually difficult for the employee to
obtain the required information.
(d) Copies of bills submitted for reimbursement must bear the handwritten
or electronic signature of the provider
when required, with evidence of payment. Payment for medical and surgical treatment, appliances or supplies
shall in general be no greater than the
maximum allowable charge for such
service determined by OWCP, as set
forth in § 30.705. OWCP will issue a letter decision on whether to reimburse
an employee for out-of-pocket medical
expenses, and the amount of any reimbursement. A claimant who disagrees
with OWCP’s letter decision may request a formal recommended decision
and utilize the adjudicatory process described in subpart D of this part.
(e) An employee will be only partially reimbursed for a medical expense
if the amount he or she paid to a provider for the service exceeds the maximum allowable charge set by OWCP’s
schedule. If this happens, OWCP shall
advise the employee of the maximum
allowable charge for the service in
§ 30.705
question and of his or her responsibility to ask the provider to refund to
the employee, or credit to the employee’s account, the amount he or she paid
which exceeds the maximum allowable
charge. The provider that the employee
paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.
(f) If the provider fails to make appropriate refund to the employee, or to
credit the employee’s account, within
60 days after the employee requests a
refund of any excess amount, or the
date of a subsequent reconsideration
decision which continues to disallow
all or a portion of the disputed amount,
OWCP will initiate exclusion procedures as provided by § 30.715.
(g) If the provider does not refund to
the employee or credit to his or her account the amount of money paid in excess of the charge which OWCP allows,
the employee should submit documentation of the attempt to obtain
such refund or credit to OWCP. OWCP
may authorize reasonable reimbursement to the employee after reviewing
the facts and circumstances of the
case.
[84 FR 3053, Feb. 8, 2019]
§ 30.703 What are the time limitations
on OWCP’s payment of bills?
OWCP will pay providers and reimburse employees promptly for all bills
received on an approved form and in a
timely manner. However, no bill will be
paid for expenses incurred if the bill is
submitted more than one year beyond
the end of the calendar year in which
the expense was incurred or the service
or supply was provided, or more than
one year beyond the end of the calendar year in which the claim was first
accepted as compensable by OWCP,
whichever is later.
MEDICAL FEE SCHEDULE
§ 30.705 What services are covered by
the OWCP fee schedule?
(a) Payment for medical and other
health services, devices and supplies
furnished by physicians, hospitals and
other providers for occupational illnesses or covered illnesses shall not exceed a maximum allowable charge for
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§ 30.706
20 CFR Ch. I (4–1–20 Edition)
such service as determined by OWCP,
except as provided in this section.
(b) The schedule of maximum allowable charges does not apply to charges
for services provided in nursing homes,
but it does apply to charges for treatment furnished in a nursing home by a
physician or other medical professional. In the future, OWCP may also
decide to implement a fee schedule for
services provided in nursing homes.
(c) The schedule of maximum allowable charges also does not apply to
charges for appliances, supplies, services or treatment furnished by medical
facilities of the U.S. Public Health
Service or the Departments of the
Army, Navy, Air Force and Veterans
Affairs.
[84 FR 3055, Feb. 8, 2019]
§ 30.706 How are the maximum fees for
professional medical services defined?
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For professional medical services,
OWCP shall maintain a schedule of
maximum allowable fees for procedures
performed in a given locality. The
schedule shall consist of: An assignment of a Relative Value Unit (RVU)
to procedures identified by HCPCS/CPT
code which represents the relative
skill, effort, risk and time required to
perform the procedure, as compared to
other procedures of the same general
class; an assignment of Geographic
Practice Cost Index (GPCI) values
which represent the relative work,
practice expenses and malpractice expenses relative to other localities
throughout the country; and a monetary value assignment (conversion factor) for one unit of value for each coded
service.
(a) The ‘‘locality’’ which serves as a
basis for the determination of cost is
defined by the Bureau of Census Metropolitan Statistical Areas. OWCP shall
base the determination of the relative
per capita cost of medical care in a locality using information about enrollment and medical cost per county, provided by CMS.
(b) OWCP shall assign the RVUs published by CMS to all services for which
CMS has made assignments, using the
most recent revision. Where there are
no RVUs assigned to a procedure,
OWCP may develop and assign any
RVUs it considers appropriate. The geographic adjustment factor shall be
that designated by GPCI values for
Metropolitan Statistical Areas as devised for CMS and as updated or revised by CMS from time to time. OWCP
will devise conversion factors for each
category of service as appropriate
using OWCP’s processing experience
and internal data.
(c) For example, if the RVUs for a
particular surgical procedure are 2.48
for physician’s work (W), 3.63 for practice expense (PE), and 0.48 for malpractice insurance (M), and the conversion factor assigned to one unit in that
category of service (surgery) is $61.20,
then the maximum allowable charge
for one performance of that procedure
is the product of the three RVUs times
the corresponding GPCI values for the
locality times the conversion factor. If
the GPCI values for the locality are
0.988(W), 0.948 (PE), and 1.174 (M), then
the maximum payment calculation is:
[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)]
× $61.20
[2.45 + 3.44 + .56] × $61.20
6.45 × $61.20 = $394.74
[84 FR 3055, Feb. 8, 2019]
[84 FR 3055, Feb. 8, 2019]
§ 30.707 How are payments to providers calculated?
§ 30.708 Does the fee schedule apply to
every kind of procedure?
Payment for a procedure, service or
device identified by a HCPCS/CPT code
shall not exceed the amount derived by
multiplying the RVU values for that
procedure by the GPCI values for services in that area and by the conversion
factor to arrive at a dollar amount assigned to one unit in that category of
service.
Where the time, effort and skill required to perform a particular procedure vary widely from one occasion to
the next, OWCP may choose not to assign a relative value to that procedure.
In this case the allowable charge for
the procedure will be set individually
based on consideration of a detailed
medical report and other evidence. At
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Office of Workers’ Compensation Programs, Labor
its discretion, OWCP may set fees without regard to schedule limits for specially authorized consultant examinations, for directed medical examinations, and for other specially authorized services.
§ 30.709 How are payments for medicinal drugs determined?
Unless otherwise specified by OWCP,
payment for medicinal drugs prescribed by physicians shall not exceed
the amount derived by multiplying the
average wholesale price of the medication by the quantity or amount provided, plus a dispensing fee. OWCP
may, in its discretion, contract for or
require the use of specific providers for
certain medications.
(a) All prescription medications identified by NDC number will be assigned
an average wholesale price representing the product’s nationally recognized wholesale price as determined
by surveys of manufacturers and
wholesalers. OWCP will establish the
dispensing fee, which will not be affected by the location or type of provider dispensing the medication.
(b) The NDC numbers, the average
wholesale prices, and the dispensing fee
shall be reviewed from time to time
and updated as necessary.
(c) With respect to prescribed medications, OWCP may require the use of
generic equivalents where they are
available.
[84 FR 3055, Feb. 8, 2019]
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§ 30.710 How are payments for inpatient medical services determined?
(a) OWCP will pay for inpatient medical services according to pre-determined, condition-specific rates based
on the Inpatient Prospective Payment
System (IPPS) devised by CMS. Using
this system, payment is derived by
multiplying
the
diagnosis-related
group (DRG) weight assigned to the
hospital discharge by the provider-specific factors.
(1) All inpatient hospital discharges
will be classified according to the
DRGs prescribed by CMS in the form of
the DRG Grouper software program. On
this list, each DRG represents the average resources necessary to provide care
in a case in that DRG relative to the
§ 30.711
national average of resources consumed per case.
(2) The provider-specific factors will
be provided by CMS in the form of
their IPPS Pricer software program.
The software takes into consideration
the type of facility, census division, actual geographic location of the hospital, case mix cost per discharge,
number of hospital beds, intern/beds
ratio, operating cost to charge ratio,
and other factors used by CMS to determine the specific rate for a hospital
discharge under their IPPS. OWCP may
devise price adjustment factors as appropriate using OWCP’s processing experience and internal data.
(3) OWCP will base payments to facilities excluded from CMS’s IPPS on
consideration of detailed medical reports and other evidence.
(4) OWCP shall review the pre-determined hospital rates at least once a
year, and may adjust any or all components when OWCP deems it necessary
or appropriate.
(b) OWCP shall review the schedule of
fees at least once a year, and may adjust the schedule or any of its components when OWCP deems it necessary
or appropriate.
[84 FR 3055, Feb. 8, 2019]
§ 30.711 How are payments for outpatient medical services determined?
(a) OWCP will pay for outpatient
medical services according to Ambulatory Payment Classifications (APC)
based on the Outpatient Prospective
Payment System devised by CMS.
(b) All outpatient medical services
will be classified according to the APC
prescribed by CMS for that service in
the form of the Outpatient Prospective
Payment System Grouper software
program. Each payment is derived by
multiplying the prospectively established scaled relative weight for the
service’s clinical APC by a conversion
factor to arrive at a national
unadjusted payment rate for the APC.
The labor portion of the national
unadjusted payment rate is further adjusted by the hospital wage index for
the area where payment is being made.
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§ 30.712
20 CFR Ch. I (4–1–20 Edition)
(c) If a payable service has no assigned APC, the payment will be derived from the OWCP Medical Fee
Schedule.
(d) OWCP shall review the pre-determined outpatient hospital rates at
least once a year, and may adjust any
or all components when OWCP deems it
necessary or appropriate.
[84 FR 3056, Feb. 8, 2019]
§ 30.712 When and how are fees reduced?
(a) OWCP shall accept a provider’s
designation of the code to identify a
billed procedure or service if the code
is consistent with medical reports and
other evidence, and will pay no more
than the maximum allowable fee for
that procedure. If the code is not consistent with the medical and other evidence or where no code is supplied, the
bill will be returned to the provider for
correction and resubmission.
(b) If the charge submitted for a service supplied to an employee exceeds the
maximum amount determined to be
reasonable according to the schedule,
OWCP shall pay the amount allowed by
the schedule for that service and shall
notify the provider in writing that payment was reduced for that service in
accordance with the schedule. OWCP
shall also notify the provider of the
method for requesting reconsideration
of the balance of the charge. The decision of OWCP to pay less than the
charged amount is final when issued
and is not subject to the adjudicatory
process described in subpart D of this
part.
tified by the original code, that the
presence of a severe or concomitant
medical condition made treatment especially difficult, or that the provider
possessed unusual qualifications. In
itself, board certification in a specialty
is not sufficient evidence of unusual
qualifications to justify a charge in excess of the maximum allowable amount
set by OWCP. These are the only three
circumstances that will justify reevaluation of the paid amount.
(2) A list of district offices and their
respective areas of jurisdiction is available upon request from the U.S. Department of Labor, Office of Workers’
Compensation Programs, Washington,
DC 20210, or at http://www.dol.gov/owcp/
energy/index.htm. Within 30 days of receiving the request for reconsideration,
the district office shall respond in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted.
(b) If the district office issues a decision that continues to disallow a contested amount, the provider may apply
to the Regional Director of the region
with jurisdiction over the district office. The application must be filed
within 30 days of the date of such decision, and it may be accompanied by additional evidence. Within 60 days of receipt of such application, the Regional
Director shall issue a decision in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted. This decision is final, and shall
not be subject to further review.
[84 FR 3056, Feb. 8, 2019]
[84 FR 3056, Feb. 8, 2019]
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§ 30.713 If OWCP reduces a fee, may a
provider request reconsideration of
the reduction?
(a) A physician or other provider
whose charge for service is only partially paid because it exceeds a maximum allowable amount set by OWCP
may, within 30 days, request reconsideration of the fee determination.
(1) The provider should make such a
request to the district office with jurisdiction over the employee’s claim. The
request must be accompanied by documentary evidence that the procedure
performed was either incorrectly iden-
§ 30.714 If OWCP reduces a fee, may a
provider bill the employee for the
balance?
A provider whose fee for service is
partially paid by OWCP as a result of
the application of its fee schedule or
other tests for reasonableness in accordance with this part shall not request payment from the employee for
the unpaid amount of the provider’s
bill.
(a) Where a provider’s fee for a particular service or procedure is lower to
the general public than as provided by
the schedule of maximum allowable
charges, the provider shall bill at the
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lower rate. A fee for a particular service or procedure which is higher than
the provider’s fee to the general public
for that same service or procedure will
be considered a charge ‘‘substantially
in excess of such provider’s customary
charges’’ for the purposes of § 30.715(d).
(b) A provider whose fee for service is
partially paid by OWCP as the result of
the application of the schedule of maximum allowable charges and who collects or attempts to collect from the
employee, either directly or through a
collection agent, any amount in excess
of the charge allowed by OWCP, and
who does not cease such action or
make appropriate refund to the employee within 60 days of the date of the
decision of OWCP, shall be subject to
the exclusion procedures provided by
§ 30.715(h).
[71 FR 78534, Dec. 29, 2006. Redesignated at 84
FR 3056, Feb. 8, 2019]
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EXCLUSION OF PROVIDERS
§ 30.715 What are the grounds for excluding a provider from payment
under this part?
A physician, hospital, or provider of
medical services or supplies shall be
excluded from payment under this part
if such physician, hospital or provider
has:
(a) Been convicted under any criminal statute of fraudulent activities in
connection with any Federal or state
program for which payments are made
to providers for similar medical, surgical or hospital services, appliances or
supplies;
(b) Been excluded or suspended, or
has resigned in lieu of exclusion or suspension, from participation in any Federal or state program referred to in
paragraph (a) of this section;
(c) Knowingly made, or caused to be
made, any false statement or misrepresentation of a material fact in connection with a determination of the right
to reimbursement under this part, or in
connection with a request for payment;
(d) Submitted, or caused to be submitted, three or more bills or requests
for payment within a 12-month period
under this subpart containing charges
which OWCP finds to be substantially
in excess of such provider’s customary
charges, unless OWCP finds there is
§ 30.716
good cause for the bills or requests containing such charges;
(e) Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this
subpart and paid for by OWCP;
(f) Failed, neglected or refused on
three or more occasions during a 12month period to submit full and accurate medical reports, or to respond to
requests by OWCP for additional reports or information, as required by
§ 30.700;
(g) Knowingly furnished treatment,
services or supplies which are substantially in excess of the employee’s
needs, or of a quality which fails to
meet professionally recognized standards;
(h) Collected or attempted to collect
from the employee, either directly or
through a collection agent, an amount
in excess of the charge allowed by
OWCP for the procedure performed, and
has failed or refused to make appropriate refund to the employee, or to
cease such collection attempts, within
60 days of the date of the decision of
OWCP;
(i) Failed to inform OWCP of any
change in their provider status as required in § 30.700; or
(j) Engaged in conduct related to care
of an employee’s occupational illness
or covered illness that OWCP finds to
be misleading, deceptive or unfair.
[84 FR 3056, Feb. 8, 2019]
§ 30.716 What will cause OWCP to
automatically exclude a physician
or other provider of medical services and supplies?
(a) OWCP shall automatically exclude a physician, hospital, or provider
of medical services or supplies who:
(1) Has been convicted of a crime described in § 30.715(a); or
(2) Has been excluded or suspended,
or has resigned in lieu of exclusion or
suspension, from participation in any
federal or state program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies.
(b) The exclusion applies to participating in the program and to seeking
payment under this part for services
performed after the date of the entry of
the judgment of conviction or order of
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§ 30.717
20 CFR Ch. I (4–1–20 Edition)
exclusion, suspension or resignation, as
the case may be, by the court or agency concerned. Proof of the conviction,
exclusion, suspension or resignation
may consist of a copy thereof authenticated by the seal of the court or agency
concerned.
(c) A provider may be excluded on a
voluntary basis at any time.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3057, Feb. 8, 2019]
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§ 30.717 When are OWCP’s exclusion
procedures initiated?
(a) Upon receipt of information indicating that a physician, hospital or
provider of medical services or supplies
(hereinafter the provider) has or may
have engaged in activities enumerated
in paragraphs (c) through (j) of § 30.715,
OWCP will forward that information to
the Department of Labor’s Office of Inspector General (DOL OIG) for its consideration. If the information was provided directly to DOL OIG, DOL OIG
will notify OWCP of its receipt and implement the appropriate action within
its authority, unless such notification
will or may compromise the identity of
confidential sources, or compromise or
prejudice an ongoing or potential
criminal investigation.
(b) DOL OIG will conduct such action
as it deems necessary, and, when appropriate, provide a written report as
described in paragraph (c) of this section to OWCP. OWCP will then determine whether to initiate procedures to
exclude the provider from participation
in the EEOICPA program. If DOL OIG
determines not to take any further action, it will promptly notify OWCP of
such determination.
(c) If DOL OIG discovers reasonable
cause to believe that violations of
§ 30.715 have occurred, it shall, when appropriate, prepare a written report, i.e.,
investigative memorandum, and forward the report along with supporting
evidence to OWCP. The report shall be
in the form of a single memorandum in
narrative form with attachments.
(1) The report should contain all of
the following elements:
(i) A brief description and explanation of the subject provider or providers;
(ii) A concise statement of the DOL
OIG’s findings upon which exclusion
may be based;
(iii) A summary of the events that
make up the DOL OIG’s findings;
(iv) A discussion of the documentation supporting DOL OIG’s findings;
(v) A discussion of any other information that may have bearing upon
the exclusion process; and
(vi) The supporting documentary evidence including any expert opinion rendered in the case.
(2) The attachments to the report
should be provided in a manner that
they may be easily referenced from the
report.
[84 FR 3057, Feb. 8, 2019]
§ 30.718 How is a provider notified of
OWCP’s intent to exclude him or
her?
Following receipt of the investigative report, OWCP will determine if
there exists a reasonable basis to exclude the provider or providers. If
OWCP determines that such a basis exists, OWCP shall initiate the exclusion
process by sending the provider a letter, by certified mail and with return
receipt requested (or equivalent services from a commercial carrier), which
shall contain the following:
(a) A concise statement of the
grounds upon which exclusion shall be
based;
(b) A summary of the information,
with supporting documentation, upon
which OWCP has relied in reaching an
initial decision that exclusion proceedings should begin;
(c) An invitation to the provider to:
(1) Resign voluntarily from participation in the EEOICPA program without
admitting or denying the allegations
presented in the letter; or
(2) Request a decision on exclusion
based upon the existing record and any
additional documentary information
the provider may wish to furnish;
(d) A notice of the provider’s right, in
the event of an adverse ruling by the
deciding official, to request a formal
hearing before an administrative law
judge;
(e) A notice that should the provider
fail to respond (as described in § 30.719)
the letter of intent within 60 days of
receipt, the deciding official may deem
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§ 30.721
the allegations made therein to be true
and may order exclusion of the provider without conducting any further
proceedings; and
(f) The address to where the response
from the provider should be sent.
stay the effectiveness of the decision to
exclude.
[84 FR 3057, Feb. 8, 2019]
A request for a hearing shall be sent
to the deciding official and shall contain:
(a) A concise notice of the issues on
which the provider desires to give evidence at the hearing;
(b) Any request for the presentation
of oral argument or evidence; and
(c) Any request for a certification of
questions concerning professional medical standards, medical ethics or medical regulation for an advisory opinion
from a competent recognized professional organization or Federal, state or
local regulatory body.
§ 30.719 What requirements must the
provider’s response and OWCP’s decision meet?
(a) The provider’s response shall be in
writing and shall include an answer to
OWCP’s invitation to resign voluntarily. If the provider does not offer to
resign, he or she shall request that a
determination be made upon the existing record and any additional information provided.
(b) Should the provider fail to respond to the letter of intent within 60
days of receipt, the deciding official
may deem the allegations made therein
to be true and may order exclusion of
the provider.
(c) The provider may inspect or request copies of information in the
record at any time prior to the deciding official’s decision by making such
request to OWCP within 20 days of receipt of the letter of intent.
(d) OWCP shall have 30 days to answer the provider’s response. That answer will be forwarded to the provider,
who shall then have 15 days to reply.
Any response from the provider may be
forwarded to DOL OIG, should OWCP
deem it appropriate, to obtain additional information which may be relevant to the provider’s response.
(e) The deciding official shall be the
Regional Director in the region in
which the provider is located unless
otherwise specified by the Director for
Energy Employees Occupational Illness
Compensation.
(f) The deciding official shall issue
his or her decision in writing, and shall
send a copy of the decision to the provider by certified mail, return receipt
requested (or equivalent service from a
commercial carrier). The decision shall
advise the provider of his or her right
to request, within 30 days of the date of
the adverse decision, a formal hearing
before an administrative law judge
under the procedures set forth in
§ 30.720. The filing of a request for a
hearing within the time specified shall
[84 FR 3057, Feb. 8, 2019]
§ 30.720 How can an excluded provider
request a hearing?
[84 FR 3057, Feb. 8, 2019]
§ 30.721 How are hearings
and scheduled?
(a) If the deciding official receives a
timely request for hearing, he or she
shall refer the matter to the Chief Administrative Law Judge of the Department of Labor, who shall assign it for
an expedited hearing. The administrative law judge assigned to the matter
shall consider the request for hearing,
act on all requests therein, and issue a
Notice of Hearing and schedule for the
conduct of the hearing. A copy of the
hearing notice shall be served on the
provider by certified mail, return receipt requested. The Notice of Hearing
and schedule shall include:
(1) A ruling on each item raised in
the request for hearing;
(2) A schedule for the prompt disposition of all preliminary matters, including requests for the certification of
questions to advisory bodies; and
(3) A scheduled hearing date not less
than 30 days after the date the schedule is issued, and not less than 15 days
after the scheduled conclusion of preliminary matters, provided that the
specific time and place of the hearing
may be set on 10 days’ notice.
(b) The provider is entitled to be
heard on any matter placed in issue by
his or her response to the notice of intent to exclude, and may designate ‘‘all
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§ 30.722
20 CFR Ch. I (4–1–20 Edition)
issues’’ for purposes of hearing. However, a specific designation of issues is
required if the provider wishes to interpose affirmative defenses, or request
the certification of questions for an advisory opinion.
[84 FR 3057, Feb. 8, 2019]
kpayne on VMOFRWIN702 with $$_JOB
§ 30.722 How are subpoenas or advisory opinions obtained?
(a) In exclusion proceedings involving medical services provided under
Part B of the Act only, the provider
may apply to the administrative law
judge for the issuance of subpoenas
upon a showing of good cause therefore.
(b) A certification of a request for an
advisory opinion concerning professional medical standards, medical ethics or medical regulation to a competent recognized or professional organization or federal, state or local regulatory agency may be made:
(1) As to an issue properly designated
by the provider, in the sound discretion
of the administrative law judge, provided that the request will not unduly
delay the proceedings;
(2) By OWCP on its own motion either before or after the institution of
proceedings, and the results thereof
shall be made available to the provider
at the time that proceedings are instituted or, if after the proceedings are
instituted, within a reasonable time
after receipt. The opinion, if rendered
by the organization or agency, is advisory only and not binding on the administrative law judge.
§ 30.723 How will the administrative
law judge conduct the hearing and
issue the recommended decision?
(a) To the extent appropriate, proceedings before the administrative law
judge shall be governed by 29 CFR part
18.
(b) The administrative law judge
shall receive such relevant evidence as
may be adduced at the hearing. Parties
to the hearing are the provider and
OWCP. Evidence shall be presented
under oath, orally or in the form of
written statements. The administrative law judge shall consider the notice
and response, including all pertinent
documents accompanying them, and
may also consider any evidence which
refers to the provider or to any claim
with respect to which the provider has
provided medical services, hospital
services, or medical services and supplies, and such other evidence as the
administrative law judge may determine to be necessary or useful in evaluating the matter.
(c) All hearings shall be recorded and
the original of the complete transcript
shall become a permanent part of the
official record of the proceedings.
(d) In conjunction with the hearing,
the administrative law judge may:
(1) Administer oaths; and
(2) Examine witnesses.
(e) At the conclusion of the hearing,
the administrative law judge shall
issue a written decision and cause it to
be served on all parties to the proceeding, their representatives and
OWCP.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3058, Feb. 8, 2019]
§ 30.724 How does a recommended decision become final?
(a) Within 30 days from the date the
recommended decision is issued, the
provider may state, in writing, any objections to the recommended decision.
This written statement should be filed
with the Director for Energy Employees Occupational Illness Compensation.
(b) For the purposes of determining
whether the written statement referred
to in paragraph (a) of this section has
been timely filed with the Director for
Energy Employees Occupational Illness
Compensation, the statement will be
considered to be ‘‘filed’’ on the date
that the provider mails it to the Director, as determined by postmark or
other carrier’s date marking, or the
date that such written statement is actually received by the Director, whichever is earlier.
(c) Written statements objecting to
the recommended decision may be filed
upon one or more of the following
grounds:
(1) A finding or conclusion of material fact is not supported by substantial evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law or
to the duly promulgated rules or decisions of the Director;
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Office of Workers’ Compensation Programs, Labor
(4) A substantial question of law, policy, or discretion is involved; or
(5) A prejudicial error of procedure
was committed.
(d) Each issue shall be separately
numbered and plainly and concisely
stated, and shall be supported by detailed citations to the record when assignments of error are based on the
record, and by statutes, regulations or
principal authorities relied upon. Except for good cause shown, no assignment of error by the provider shall rely
on any question of fact or law upon
which the administrative law judge had
not been afforded an opportunity to
pass.
(e) If a written statement of objection is filed within the allotted period
of time, the Director for Energy Employees Occupational Illness Compensation will review the objection.
The Director will forward the written
objection to DOL OIG, which will have
14 calendar days from that date to respond. Any response from DOL OIG
will be forwarded to the provider,
which will have 14 calendar days from
that date to reply.
(f) The Director for Energy Employees Occupational Illness Compensation
will consider the recommended decision, the written record and any response or reply received and will then
issue a written, final decision either
upholding or reversing the exclusion.
(g) If no written statement of objection is filed within the allotted period
of time, the Director for Energy Employees Occupational Illness Compensation will issue a written, final decision accepting the recommendation
of the administrative law judge.
(h) The decision of the Director for
Energy Employees Occupational Illness
Compensation shall be final with respect to the provider’s participation in
the program, and shall not be subject
to further review.
[84 FR 3058, Feb. 8, 2019]
kpayne on VMOFRWIN702 with $$_JOB
§ 30.725 What are the effects of nonautomatic exclusion?
(a) OWCP shall give notice of the exclusion of a physician, hospital or provider of medical services or supplies to:
(1) All OWCP district offices;
(2) CMS;
§ 30.726
(3) All employees who are known to
have had treatment, services or supplies from the excluded provider within
the six-month period immediately preceding the order of exclusion; and
(4) The state or local authority responsible for licensing or certifying the
excluded provider.
(b) Notwithstanding any exclusion of
a physician, hospital, or provider of
medical services or supplies under this
subpart, OWCP shall not refuse an employee reimbursement for any otherwise reimbursable medical treatment,
service or supply if:
(1) Such treatment, service or supply
was rendered in an emergency by an
excluded physician; or
(2) The employee could not reasonably have been expected to know of
such exclusion.
(c) An employee who is notified that
his or her attending physician has been
excluded shall have a new right to select a qualified physician.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3058, Feb. 8, 2019]
§ 30.726 How can an excluded provider
be reinstated?
(a) If a physician, hospital, or provider of medical services or supplies
has been automatically excluded pursuant to § 30.716, the provider excluded
will automatically be reinstated upon
notice to OWCP that the conviction or
exclusion which formed the basis of the
automatic exclusion has been reversed
or withdrawn. However, an automatic
reinstatement shall not preclude OWCP
from instituting exclusion proceedings
based upon the underlying facts of the
matter.
(b) A physician, hospital, or provider
of medical services or supplies excluded
from participation as a result of an
order issued pursuant to this subpart
may apply for reinstatement one year
after the entry of the order of exclusion, unless the order expressly provides for a shorter period. An application for reinstatement shall be addressed to the Director for Energy Employees Occupational Illness Compensation, and shall contain a concise
statement of the basis for the application. The application should be accompanied by supporting documents and
affidavits.
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§ 30.800
20 CFR Ch. I (4–1–20 Edition)
(c) A request for reinstatement may
be accompanied by a request for oral
presentation. Oral presentations will
be allowed only in unusual circumstances where it will materially
aid the decision process.
(d) The Director for Energy Employees Occupational Illness Compensation
shall order reinstatement only in instances where such reinstatement is
clearly consistent with the goal of this
subpart to protect the EEOICPA program against fraud and abuse. To satisfy this requirement the provider
must provide reasonable assurances
that the basis for the exclusion will not
be repeated.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3059, Feb. 8, 2019]
Subpart I—Wage-Loss Determinations
Under
Part
E
of
EEOICPA
GENERAL PROVISIONS
§ 30.800 What types of wage-loss are
compensable under Part E of
EEOICPA?
kpayne on VMOFRWIN702 with $$_JOB
Years of wage-loss occurring prior to
normal retirement age that are the result of a covered illness contracted by
a covered Part E employee through
work-related exposure to a toxic substance at a Department of Energy facility or a RECA section 5 facility, as
appropriate, may be compensable under
Part E of the Act. Whether years of
wage-loss are compensable depends on
determinations with respect to:
(a) The average annual wage of the
employee as determined by OWCP in
accordance with § 30.810;
(b) The percentage of his or her average annual wage that the employee was
able to earn during the calendar year(s)
in question as determined by OWCP in
accordance with § 30.811; and
(c) Whether the employee’s inability
to earn at least as much as his or her
average annual wage was due to a covered illness as defined in § 30.5(s).
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3059, Feb. 8, 2019]
§ 30.801 What special definitions does
OWCP use in connection with Part
E wage-loss determinations?
For the purposes of paying compensation based on wage-loss under Part E of
the Act, OWCP will apply the following
definitions:
(a) Average annual wage means 12
times the average monthly wage of a
covered Part E employee for the 36
months preceding the month during
which he or she first experienced wageloss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility (referred to as the ‘‘trigger month’’), excluding any months
during which the employee was unemployed. Because being ‘‘retired’’ is not
equivalent to being ‘‘unemployed,’’
months during which an employee had
no wages because he or she was retired
will not be excluded from this calculation.
(b) Normal retirement age means the
age at which a covered Part E employee first became eligible for unreduced retirement benefits under the
Old-Age, Survivors and Disability Insurance (OASDI) provisions of the Social Security Act. In general, persons
born during or before 1937 are eligible
for unreduced OASDI retirement benefits at age 65, and that age increases in
monthly increments until it reaches 67,
which is the age at which persons born
during or after 1960 become eligible for
unreduced OASDI retirement benefits.
(c) Month during which the employee
was unemployed means any month during which the covered Part E employee
had $250 (in constant 2013 dollars) or
less in wages unless the month is one
during which the employee was retired.
(d) Quarter means the three-month
period January through March, April
through June, July through September, or October through December.
(e) Quarter during which the employee
was unemployed means any quarter during which the covered Part E employee
had $750 (in constant 2013 dollars) or
less in wages unless the quarter is one
during which the employee was retired.
(f) Trigger month means the calendar
month during which the employee first
experienced a loss in wages due to exposure to a toxic substance at a DOE
facility or RECA section 5 facility.
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Office of Workers’ Compensation Programs, Labor
(g) Wages mean all monetary payments that the covered Part E employee earns from his or her regular
employment or services that are taxed
as income by the Internal Revenue
Service. Salaries, overtime compensation, sick leave, vacation leave, tips,
and bonuses received for employment
services are considered wages under
this subpart. However, capital gains,
IRA distributions, pensions, annuities,
unemployment compensation, state
workers’ compensation benefits, medical retirement benefits, and Social Security benefits are not considered
wages.
(h) Year of wage-loss means a calendar
year during which the covered Part E
employee’s earnings were less than his
or her average annual wage, after such
earnings have been adjusted using the
Consumer Price Index for All Urban
Consumers (CPI–U), as produced by the
Bureau of Labor Statistics, to reflect
their value in the year during which
the employee first experienced wageloss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3059, Feb. 8, 2019]
EVIDENCE OF WAGE-LOSS
kpayne on VMOFRWIN702 with $$_JOB
§ 30.805 What are the criteria for eligibility for wage-loss benefits under
Part E?
(a) In addition to satisfying the general eligibility requirements applicable
to all Part E claims, a claimant seeking benefits for calendar years of qualifying wage-loss has the burden of proof
to establish each of the following criteria:
(1) He or she held a job at which he or
she earned wages;
(2) He or she experienced a loss in
those wages in a particular month (referred to as the ‘‘trigger month’’ in
this section);
(3) The wage-loss in the trigger
month was caused by the covered Part
E employee’s covered illness, i.e., that
he or she would have continued to earn
wages in the trigger month from that
employment but for the covered illness;
(4) His or her average annual wage;
§ 30.807
(5) His or her normal retirement age
and the calendar year in which he or
she would reach that age;
(6) Beginning with the calendar year
of the trigger month, the percentage of
the average annual wage that was
earned in each calendar year up to and
including the retirement year;
(7) The number of those calendar
years in which the covered illness
caused the covered Part E employee to
earn 50% or less of his or her average
annual wage; and
(8) The number of those calendar
years in which the covered illness
caused him or her to earn more than
50% but not more than 75% of his or
her average annual wage.
(b) OWCP will discontinue development of a request for wage-loss benefits, during which the claimant must
meet his or her burden of proof to establish each of the criteria listed in
paragraph (a) of this section, at any
point when the claimant is unable to
meet such burden and proceed to issue
a recommended decision to deny the
request.
[84 FR 3059, Feb. 8, 2019]
§ 30.806 What kind of medical evidence
must the claimant submit to prove
that he or she lost wages due to a
covered illness?
OWCP requires the submission of
rationalized medical evidence of sufficient probative value to convince the
fact-finder that the covered Part E employee experienced a loss in wages in
his or her trigger month due to a covered illness, i.e., medical evidence
based on a physician’s fully explained
and
reasoned
decision
(see
§ 30.805(a)(3)). A loss in wages in the
trigger month due solely to non-covered illness matters, such as a reduction in force or voluntary retirement,
is not proof of compensable wage-loss
under Part E.
[84 FR 3059, Feb. 8, 2019]
§ 30.807 What factual evidence does
OWCP use to determine a covered
Part E employee’s average annual
wage?
(a) OWCP may rely on annual or
quarterly wage information reported to
the Social Security Administration to
establish a covered Part E employee’s
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§ 30.810
20 CFR Ch. I (4–1–20 Edition)
presumed average annual wage (see
§ 30.810) and the duration and extent of
any years of wage-loss that are compensable under Part E of the Act (see
§ 30.811). OWCP may also rely on other
probative evidence of a covered Part E
employee’s wages, and may ask the
claimant for additional evidence needed to make this determination, if necessary. For the purposes of making
these two types of determinations,
OWCP will consider all monetary payments that the covered Part E employee
received
as
wages
(see
§ 30.801(g)).
(b) A claimant who disagrees with
the evidence OWCP has obtained under
paragraph (a) of this section and alleges a different average annual wage
for the covered Part E employee, or
that there was a greater duration or
extent of wage-loss, may submit
records that were produced in the ordinary course of business due to the employee’s employment to rebut that evidence, to the extent that such records
are determined to be authentic by
OWCP. The average annual wage and/or
wage-loss of the covered Part E employee will then be determined by
OWCP in the exercise of its discretion.
[84 FR 3059, Feb. 8, 2019]
kpayne on VMOFRWIN702 with $$_JOB
DETERMINATIONS OF AVERAGE ANNUAL
WAGE AND PERCENTAGES OF LOSS
§ 30.810 How will OWCP calculate the
average annual wage of a covered
Part E employee?
To calculate the average annual wage
of a covered Part E employee as defined in § 30.801(a), OWCP will:
(a) Aggregate the wages for the 36
months that preceded the trigger
month, excluding any month during
which the employee was unemployed;
(b) Add any additional wages earned
by the employee during those same
months as evidenced by records described in § 30.807;
(c) Divide the sum of paragraphs (a)
and (b) of this section by 36, less the
number of months during which the
employee was unemployed; and
(d) Multiply this figure by 12 to calculate the covered Part E employee’s
average annual wage.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3060, Feb. 8, 2019]
§ 30.811 How will OWCP calculate the
duration and extent of a covered
Part E employee’s initial period of
compensable wage-loss?
(a) To determine the initial calendar
years of wage-loss, OWCP will use the
evidence it receives under §§ 30.805
through 30.807 to compare the calendaryear wages for the covered Part E employee, as adjusted, with the average
annual wage determined under § 30.810
for each calendar year beginning with
the calendar year that includes the
trigger month, and concluding with the
last calendar year of wage-loss prior to
the submission of the claim or the calendar year in which the employee
reached normal retirement age (as defined in § 30.801(b)), whichever occurred
first.
(b) OWCP will then aggregate separately the number of calendar years of
wage-loss in which the employee’s
wages, as adjusted, did not exceed 50
percent of the average annual wage determined under § 30.810, and the number
of calendar years of wage-loss in which
the employee’s wages, as adjusted, exceeded 50 percent of such average annual wage, but did not exceed 75 percent of such average annual wage.
(c) For each calendar year of wageloss determined under paragraph (c) of
this section during which the employee’s wages did not exceed 50 percent of
his or her average annual wage, OWCP
will pay the employee $15,000 as compensation for wage-loss. For each calendar year of wage-loss determined
under paragraph (c) of this section during which the employee’s calendar-year
wages exceeded 50 percent of his or her
average annual wage but did not exceed
75 percent of such average annual
wage, OWCP will pay the employee
$10,000 as compensation for wage-loss.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3060, Feb. 8, 2019]
§ 30.812 May a covered Part E employee claim for subsequent periods
of compensable wage-loss?
A covered Part E employee previously awarded compensation for
wage-loss under § 30.811 may file for additional compensation for wage-loss
suffered by the employee during periods subsequent to a period for which a
wage-loss claim for the employee has
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Office of Workers’ Compensation Programs, Labor
already been adjudicated by OWCP.
However, no compensation for wageloss shall be awarded for any period following the year during which the covered Part E employee attained normal
retirement age for purposes of the Social Security Act as described in
§ 30.801(b).
SPECIAL RULES FOR CERTAIN SURVIVOR
CLAIMS UNDER PART E OF EEOICPA
kpayne on VMOFRWIN702 with $$_JOB
§ 30.815 Are there special rules that
OWCP will use to determine the extent of a deceased covered Part E
employee’s compensable wage-loss?
(a) For purposes of adjudicating a
claim of a survivor of a deceased covered Part E employee only, OWCP will
presume that such employee experienced wage-loss for each calendar year
subsequent to the calendar year of his
or her death through and including the
calendar year in which the employee
would have reached normal retirement
age under the Social Security Act.
During these particular calendar years,
OWCP will also presume that the deceased covered Part E employee’s subsequent calendar-year wages did not
exceed 50 percent of his or her average
annual wage as determined under
§ 30.810.
(b) Except as provided in paragraph
(a) of this section, OWCP will calculate
the wage-loss of a deceased covered
Part E employee in conformance with
the provisions of §§ 30.800 through
30.811.
(c) If OWCP determines that a deceased covered Part E employee had an
aggregate of not less than ten calendar
years of adjusted earnings that did not
exceed 50 percent of his or her average
annual earnings, it will pay the eligible
surviving
beneficiary(s)
additional
compensation (the basic survivor
award payable under section 7385s–
3(a)(1) is $125,000) in the amount of
$25,000 pursuant to section 7385s–3(a)(2)
of the Act. In the alternative, if OWCP
determines that the aggregate number
of such years is not less than 20 years,
it will pay the eligible surviving beneficiary(s) additional compensation in
the amount of $50,000 pursuant to section 7385s–3(a)(3).
§ 30.901
Subpart J—Impairment Benefits
Under Part E of EEOICPA
GENERAL PROVISIONS
§ 30.900 Who can receive impairment
benefits under Part E?
In order to receive impairment benefits under Part E, the employee must
show that:
(a) He or she is a covered Part E employee who has been determined to
have contracted a covered illness
through exposure to a toxic substance
at a DOE facility or a RECA section 5
facility, as appropriate, pursuant to either §§ 30.210 through 30.215 or §§ 30.230
through 30.232 of these regulations; and
(b) He or she has been determined to
have an impairment, pursuant to the
regulations set out in this subpart,
that is the result of the covered illness
referred to in paragraph (a) of this section.
§ 30.901 How does OWCP determine
the extent of an employee’s impairment that is due to a covered illness
contracted through exposure to a
toxic substance at a DOE facility or
a RECA section 5 facility, as appropriate?
(a) OWCP will determine the amount
of impairment benefits to which an employee is entitled based on one or more
impairment evaluations submitted by
physicians. An impairment evaluation
shall contain the physician’s opinion
on the extent of whole person impairment of all organs and body functions
of the employee that are compromised
or otherwise affected by the employee’s
covered illness or illnesses, which shall
be referred to as an ‘‘impairment rating.’’
(b) In making impairment benefit determinations, OWCP will only consider
medical reports from physicians who
are certified by the relevant medical
board and who satisfy any additional
criteria determined by OWCP to be
necessary to qualify to perform impairment evaluations under Part E, including any specific training and experience related to particular conditions
and other objective factors.
(c) OWCP will establish criteria
based upon objective factors such as
training and certification that must be
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§ 30.902
20 CFR Ch. I (4–1–20 Edition)
met by physicians preparing impairment evaluations in order for an impairment evaluation to be considered
in determining an impairment award.
Such criteria shall be made available
to claimants and the public by OWCP.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3060, Feb. 8, 2019]
§ 30.902 How will OWCP calculate the
amount of the award of impairment
benefits that is payable under Part
E?
(a) OWCP will multiply the percentage points of the impairment rating by
$2,500 to calculate the amount of the
award.
(b) An employee’s impairment rating
may be comprised of multiple impairments of organs and body functions due
to multiple covered illnesses. If an impairment award is payable based on a
whole person impairment rating in
which at least one of the impairments
is subject to a reduction under
§§ 30.505(b) and/or 30.626, OWCP will reduce the impairment award proportionately.
[84 FR 3060, Feb. 8, 2019]
MEDICAL EVIDENCE OF IMPAIRMENT
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§ 30.905 How may an impairment evaluation be obtained?
(a) Except as provided in paragraph
(b) of this section, OWCP may request
that an employee undergo an evaluation of his or her permanent impairment that specifies the percentage
points that are the result of the employee’s covered illness or illnesses. To
be of any probative value, such evaluation must be performed by a physician
who meets the criteria OWCP has identified for physicians performing impairment evaluations for the pertinent
covered illness or illnesses in accordance with the AMA’s Guides.
(b) In lieu of submitting an evaluation requested by OWCP under paragraph (a) of this section, an employee
may obtain an impairment evaluation
at his own initiative and submit it to
OWCP for consideration. Such an evaluation will be deemed to have sufficient probative value to be considered
in the adjudication of impairment benefits by OWCP only if:
(1) The evaluation was performed by
a physician who meets the criteria
identified by OWCP for the covered illness or illnesses in question;
(2) The evaluation was performed no
more than one year before the date
that it was received by OWCP; and
(3) The evaluation conforms to all applicable requirements set out in this
part.
§ 30.906 Who will pay for an impairment evaluation?
(a) OWCP will pay for one impairment evaluation obtained by an employee if it meets the criteria set out
in § 30.905(b), unless it was performed
by a physician prior to the date that
the claim for Part E benefits is filed, or
obtained for a claim in which OWCP
finds that the employee did not contract a covered illness. At its discretion, OWCP may direct that the employee undergo additional evaluations.
OWCP will pay for any such additional
evaluations and will reimburse the employee for any reasonable and necessary costs incident to the evaluations, as described in §§ 30.404 and 30.412
of this part.
(b) Except for one impairment evaluation obtained pursuant to § 30.905(b)
and meeting the criteria set out in
§ 30.905(b)(1), (2) and (3), the employee
must pay for any impairment evaluations not directed by OWCP.
§ 30.907 Can an impairment evaluation
obtained by OWCP be challenged
prior to issuance of the recommended decision?
(a) An employee may submit arguments challenging an impairment evaluation, and/or additional medical evidence of impairment, before the district office issues a recommended decision on his or her claim. However, the
district office will not consider an additional impairment evaluation, even if
it differs from the impairment evaluation obtained under § 30.905 or § 30.906, if
it does not meet the criteria listed in
§ 30.905(b)(1), (2) and (3).
(b) If the district office obtains an additional impairment evaluation that
differs from the impairment evaluation
obtained under § 30.905 or § 30.906, the
district office will base its recommended determinations regarding
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Office of Workers’ Compensation Programs, Labor
impairment upon the evidence it considers to have the greatest probative
value, after evaluating all relevant evidence of impairment in the record, including evidence from directed impairment evaluations and referee impairment evaluations, if any, that it deems
necessary pursuant to §§ 30.410 and
30.411 of this part.
§ 30.908 How will the FAB evaluate
new medical evidence submitted to
challenge the impairment determination in the recommended decision?
(a) If an employee submits an additional impairment evaluation that differs from the impairment evaluation
relied upon by the district office, the
FAB will not consider the additional
impairment evaluation if it does not
meet the criteria listed in § 30.905(b)(1),
(2) and (3).
(b) The employee shall bear the burden of proving that the additional impairment evaluation submitted is more
probative than the evaluation relied
upon by the district office to determine
the employee’s recommended impairment rating.
(c) If an employee submits an additional impairment evaluation that differs from the impairment evaluation
relied upon by the district office, the
FAB will review all relevant evidence
of impairment in the record, and will
base its determinations regarding impairment upon the evidence it considers to be most probative. The FAB
will determine the impairment rating
after it has evaluated all relevant evidence and argument in the record.
[71 FR 78534, Dec. 29, 2006, as amended at 84
FR 3060, Feb. 8, 2019]
kpayne on VMOFRWIN702 with $$_JOB
RATABLE IMPAIRMENTS
§ 30.910 Will an impairment that cannot be assigned a numerical percentage using the AMA’s Guides be
included in the impairment rating?
(a) An impairment of an organ or
body function that cannot be assigned
a numerical impairment percentage
using the AMA’s Guides will not be included in the employee’s impairment
rating.
(b) A mental impairment that does
not originate from a documented physical dysfunction of the nervous system,
§ 30.912
and cannot be assigned a numerical
percentage using the AMA’s Guides,
will not be included in the impairment
rating for the employee. Mental impairments that are due to documented
physical dysfunctions of the nervous
system can be assigned numerical percentages using the AMA’s Guides and
will be included in the rating.
§ 30.911 Does maximum medical improvement always have to be
reached for an impairment to be included in the impairment rating?
(a) An impairment that is the result
of a covered illness will be included in
the employee’s impairment rating determined by OWCP under § 30.901 only if
OWCP concludes that the impairment
has reached maximum medical improvement, which means that it is
well-stabilized and unlikely to improve
substantially with or without medical
treatment.
(b) Notwithstanding paragraph (a) of
this section, if OWCP finds that an employee’s covered illness is in the terminal stages, based upon probative
medical evidence, an impairment that
results from such covered illness will
be included in the impairment rating
for the employee even if it has not
reached maximum medical improvement.
§ 30.912 Can a covered Part E employee receive benefits for additional impairment following an
award of such benefits by OWCP?
A covered Part E employee previously awarded impairment benefits
by OWCP may file a claim for additional impairment benefits. Such claim
must be based on an increase in the impairment rating that is the result of
the covered illness or illnesses from
the impairment rating that formed the
basis for the last award of such benefits
by OWCP. OWCP will only adjudicate
claims for such an increased rating
that are filed at least two years from
the date of the last award of impairment benefits. However, OWCP will not
wait two years before it will adjudicate
a claim for additional impairment that
is based on an allegation that the employee sustained a new covered illness.
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| File Type | application/pdf |
| File Modified | 2020-09-18 |
| File Created | 2020-09-18 |