An individual shall be deemed to be in an employment relation to an employer on the enactment date if he was absent from the service of an employer on that date by reason of a discharge which was protested as being wrongful to an apropriate labor representative, or to the employer, within one year of the effective date of the discharge, and within 10 years of such effective date he was reinstated in good faith to his former service with restoration of all his seniority rights. If the reinstatement was in good faith it is immaterial whether he received pay for time lost or whether he reentered the active service of the employer following the reinstatement. It is immaterial whether the discharge was wrongful; it is sufficient that it was protested as being wrongful. If the employee did not reenter the active service of an employer following his reinstatement, it must be shown that the reinstatement was made in contemplation of a return to active service. If an individual is required to pass a physical test as a condition of the reinstatement and does not do so, the reinstatement will not have occurred. However, if the individual is first reinstated and then fails to pass the required mental or physical examination as a prerequisite to return to active service his failure in this respect is not construed as evidencing any lack of good faith on the part of either the employee or the employer. § 204.11 Evidence of disability. The term "physical or mental disability" as used in this part relates to the ability of the individual to perform the duties of his regular occupation in accordance with the standards customarily recognized within the industry. Determinations of disability will be made on the basis of medical evidence furnished by the employer and by the employee as well as by other circumstances which are indicative of the individual's ability to render service in his usual occupation. [Board Order 55-89, 20 FR. 8706, May 27, 1955] 205.2 Definition of employee representative. 205.3 Reports of employee representatives. 205.4 Service of employee representatives. AUTHORITY: The provisions of this Part 205 issued under secs. 1, 10, 50 Stat. 307, as amended, 314, as amended; 45 U.S.C. 2288, 2281. SOURCE: The provisions of this Part 205 appear at 4 F.R. 1482, Apr. 7, 1939, unless otherwise noted. The term "employee representative" means any officer or official representative of a railway labor organization other than a labor organization included in the term "employer" as defined in section 1 (a) who before or after the enactment date was in the service of an employer as defined in section 1 (a) and who is duly authorized and designated to represent employees in accordance with the Railway Labor Act, as amended, and any individual who is regularly assigned to or regularly employed by such officer or official representative in connection with the duties of his office. § 205.2 Definition of employee repre sentative. An individual shall be an employee representative within the meaning of the act (a) if he is an officer or official representative of a railway labor organization not an employer, as defined in the act, and is duly authorized and designated to represent employees in accordance with the Railway Labor Act, as amended: Provided, however, That before or after August 29, 1935, and before the time in question he must have been in the service of an employer; or (b) if he is regularly assigned to or regularly employed by an employee representative as described in (a) above in connection with the duties of the office of such employee representative, irrespective of whether he possesses the qualifications described in (a). § 205.3 Reports of employee representatives. PART 208-ELIGIBILITY FOR AN ANNUITY Sec. 208.1 208.2 208.5 208.7 208.9 Statutory provisions. Current connection with the rail- Annuities for employees. Regular occupation defined. 208.10 Permanent physical or mental condition defined. 208.11 Establishment of permanent disability for work in the applicant's "regular occupation". 208.17 Establishment of permanent disability for any regular employment. 208.25 Proof of continuance of disability. 208.27 Disability annuitant to notify of recovery from disability and of employment or self-employment. 208.29 Cessation of disability annuities. 208.31 Cessation of disability annuity not prejudicial to further eligibility. AUTHORITY: The provisions of this Part 208 issued under secs. 2, 10, 50 Stat. 309, as amended, 314, as amended; 45 U.S.C. 228b, 228j, unless otherwise noted. § 208.1 Statutory provisions. (a) The following-described individuals, if they shall have been employees on or after the enactment date, and shall have completed ten years of service, shall, subject to the conditions set forth in subsections (b), (c), and (d), be eligible for annuities after they shall have ceased to render compensated service to any person, whether or not an employer as defined in section 1 (a) (but with the right to engage in other employment to the extent not prohibited by subsection (d)): (1) Individuals who on or after the enactment date shall be sixty-five years of age or over. (2) Women who will have attained the age of sixty and will have completed thirty years of service. (3) Men who will have attained the age of sixty and will have completed thirty years of service, or individuals who will have attained the age of sixty-two and will have completed less than thirty years of service, but the annuity of such men or such individuals shall be reduced by 180 for each calendar month that he or she is under age sixty-five when the annuity begins to accrue. (4) Individuals having a current connection with the railroad industry, and whose permanent physical or mental condition is such as to be disabling for work in their regular occupation, and who (1) will have completed twenty years of service or (ii) will have attained the age of sixty. The Board, with the cooperation of employers and employees, shall secure the establishment of standards determining the physical and mental conditions which permanently disqualify employees for work in the several occupations in the railroad industry, and the Board, employers, and employees shall cooperate in the promotion of the greatest practicable degree of uniformity in the standards applied by the several employers. An individual's condition shall be deemed to be disabling for work in his regular occupation if he will have been disqualified by his employer because of disability for service in his regular occupation in accordance with the applicable standards so established; if the employee will not have been so disqualified by his employer, the Board shall determine whether his condition is disabling for work in his regular occupation in accordance with the standards generally established; and, if the employee's regular occupation is not one with respect to which standards will have been established, the standards relating to a reasonably comparable occupation shall be used. If there is no such comparable occupation, the Board shall determine whether the employee's condition is disabling for work in his regular occupation by determining whether under the practices generally prevailing in industries in which such Occupation exists such condition is a permanent disqualification for work in such occupation. For the purposes of this section, an employee's "regular occupation" shall be deemed to be the occupation in which he will have been engaged in more calendar months than the calendar months in which he will have been engaged in any other occupation during the last preceding five calendar years, whether or not consecutive, in each of which years he will have earned wages or salary, except that, if an employee establishes that during the last fifteen consecutive calendar years he will have been engaged in another occupation in one-half or more of all the months in which he will have earned wages or salary, he may claim such other occupation as his regular occupation; or (5) Individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment. Such satisfactory proof shall be made from time to time as prescribed by the Board, of the disability provided for in paragraph 4 or 5 and of the continuance of such disability (according to the standards applied in the establishment of such disability) until the employee attains the age of sixty-five. If the individual fails to comply with the requirements prescribed by the Board as to proof of the continuance of the disability until he attains the age of sixty-five years, his right to an annuity by reason of such disability shall, except for good cause shown to the Board, cease, but without prejudice to his rights to any subsequent annuity to which he may be entitled. If before attaining the age of sixty-five an employee in receipt of an annuity under paragraph 4 or 5 is found by the Board to be no longer disabled as provided in said paragraphs his annuity shall cease upon the last day of the month in which he ceases to be so disabled. If after cessation of his disability annuity the employee will have acquired additional years of service, such additional years of service may be credited to him with the same effect as if no annuity had previously been awarded to him. (b) An annuity shall be paid only if the applicant shall have relinquished such rights as he may have to return to the service of an employer and of the person by whom he was last employed; but this requirement shall not apply to the individuals mentioned in subdivision 4 and subdivision 5 of subsection (a) prior to attaining age sixty-five. (c) An annuity shall begin to accrue as of a date to be specified in a written application (to be made in such manner and form as may be prescribed by the Board and to be signed by the individual entitled thereto), but: (1) not before the date following the last day of compensated service of the applicant, and (2) Not more than twelve months before the filing of the application. (Sec. 2, 50 Stat. 309, 310, as amended; 45 U. S. C. 228b.) [12 F.R. 859, Feb. 6, 1947, as amended by Board Order 55-89, 20 F.R. 3706, May 27, 1955; Board Order 60-8. 25 F.R. 720, Jan. 28, 1960; Board Order 62-33, 27 F.R. 3321, Apr. 7, 1962] § 208.2 Employee status. To be eligible for an annuity an individual, in addition to other qualifications, must have been an employee on August 29, 1935, or, if not an employee on that date, he must have rendered service subsequent to December 31, 1936, as an employee. (Sec. 1, 50 Stat. 307, as amended; 45 U.S.C. 228a) [12 F.R. 861, Feb. 6, 1947] § 208.5 Current connection with the railroad industry. (a) An individual will have had a current connection with the railroad industry at the time an annuity begins to accrue to him if he will have had a period of 30 consecutive calendar months which meets the following requirements: First, that period must have ended before an annuity begins to accure to him in accordance with Part 214 of this chapter. Second, during that period he must have been in service as an employee in at least 12 calendar months. Third, if there was any interval between the end of the 30-month period and the month in which an annuity begins to accrue to him, he must not, in that interval, have been engaged in any regular employment other than service for an employer. (For statutory provisions, see § 237.101 of this chapter.) (b) For the purposes of this part and § 225.5 of this chapter, "regular employment" shall mean full- or part-time employment for remuneration by an individual for a person (as defined in § 201.1 (j) of this chapter) on a continuing or recurring basis. Self-employment shall not be considered "regular employment." An individual performing employment for remuneration, whether or not under a contract, shall be deemed to be in the employ of a person unless such employment is performed as a part of his independently established trade, business or occupation. An individual shall be deemed to have been engaged in "regular employment" in the interval between the end of the last 30-month period in which he had been in service as an employee in 12 calendar months and the month in which an annuity begins to accrue to him if he worked for one or more persons in any three consecutive calendar quarters wholly or partially within such interval and earned wages of at least $300 for work in each of any two consecutive calendar quarters wholly or partially within such interval even though such two quarters do not fall within a three-consecutive-calendar-quarter pe riod of work. (c) A determination as to whether or not an individual will have had a current connection with the railroad industry made on or after June 8, 1960, shall be made under the provisions of this section. In any case in which a disability annuity under § 208.7(a) (3), a minimum annuity under § 225.5 of this chapter, or a spouse's annuity under § 232.202(c) of this chapter has previously been denied because the individual did not have a current connection with the railroad industry under the provisions of this section as in effect prior to June 8, 1960, the decision denying the claim in whole or in part may be reopened and reconsidered under the provisions of this section: Provided, however, That any annuity or increase in annuity for which an individual may be found entitled shall not be retroactive more than 12 months before the date of such reopening. [Board Order 60-99, 25 FR. 5764, June 28, 1960] § 208.7 Annuities for employees. (a) Subject to the provisions of paragraphs (b) and (c) of this section, an individual who has been an employee on or after August 29, 1935, has completed 10 years of service, and has ceased to render service for compensation to any person, whether or not an employer under the act, is eligible for an annuity if: (1) The individual has attained the age of 65, or the individual is a woman, and (i) has attained the age of 60 and (ii) has completed at least 354 months of service, or (2) The individual is a man who has attained age 60 and has completed at least 354 months of service, or the individual is a man or woman who has attained age 62 and has completed less than 354 months of service, but the annuity of such an individual shall be reduced by 180 for each calendar month during all of which he or she is under age 65 when the annuity begins to accrue, or (3) The individual has a current connection with the railroad industry and his permanent physical or mental condition, as that term is defined in § 208.10, is such as to be disabling for work in his regular occupation, and (1) has completed at least 234 months of service, or (ii) has attained the age of 60, or (4) The individual's permanent physical or mental condition, as that term is defined in § 208.10, is such as to be disabling for work in any regular employment. (b) No annuity shall be certified for payment to an individual until such time as he has filed with the Board a duly executed application form, has established by proof satisfactory to the Board that he possesses all the qualifications therefor, and, except for an individual whose eligibility for an annuity is determined in accordance with paragraph (a) (3) or (4) of this section, has relinquished rights to return to service as required by Part 216 of this chapter. In no case shall an annuity begin to accrue earlier than (1) twelve months prior to the date upon which the application therefor was filed with the Board, or (2) the day following the last day of the applicant's compensated service: Provided, however, That where such date falls on the thirty-first day of any month An the annuity shall begin to accrue on the first day of the following month. individual whose eligibility for an annuity is determined in accordance with paragraph (a) (3) or (4) of this section, shall relinquish rights to return to service as required by Part 216 of this chapter upon his attainment of age 65. (c) Except as provided in § 208.31 and § 210.11 or § 210.12 of this chapter, after an annuity has been awarded to an individual under this part, he shall not be entitled to another kind of annuity under this part even though he was eligible at the time of the award, or subsequently became eligible, for another kind of annuity. [12 F.R. 861, Feb. 6, 1947, as amended by Board Order 55-89, 20 F.R. 3706, May 27, 1955; Board Order 62-33, 27 F.R. 3321, Apr. 7, 1962; Board Order 65-36, 30 F.R. 4061, Mar. 27, 1965; Board Order 66-15, 31 F.R. 3177, Feb. 26, 1966] § 208.9 Regular occupation defined. For the purpose of an annuity under § 208.7(a) (3), an individual's regular occupation shall be his occupation in the railroad industry in which (a) he has been engaged in service for hire, including service for hire outside the railroad industry, in more calendar months than the calendar months in which he has been engaged in service for hire in any other occupation, whether or not in the railroad industry, during the last preceding five calendar years, whether or not consecutive, or (b) he has been engaged in service for hire, including service for hire outside the railroad industry, in not less than one-half of all the months in which he has been engaged in service for hire, whether or not in the railroad industry, during the last preceding 15 consecutive calendar years. [12 F.R. 861, Feb. 6, 1947] § 208.10 Permanent physical or mental condition defined. (a) For the purpose of an annuity under §§ 208.7(a) (3) and 208.7(a) (4), and § 237.409 of this chapter, the term "permanent physical or mental condition" means a physical or mental impairment that can be expected to result in death or has lasted, or can be expected to last, for a continuous period of not less than 12 months. (b) A determination as to whether or not an individual's permanent physical or mental condition is such as to be dis abling for work in his regular occupation or in any regular employment made on or after February 10, 1966, shall be made under the provisions of this section: Provided, however, That any annuity for which an individual may be found entitled solely by reason of this section shall not accrue before September 1, 1965. (c) In any case in which an annuity under the provisions of §§ 208.7(a) (3) or 208.7(a) (4), or § 237.409 of this chapter has previously been denied because the determination of disability for work in the applicant's regular occupation or in any regular employment was made under the provisions of this chapter in effect prior to February 10, 1966, the decision denying the claim in whole or in part may be reopened and reconsidered under the provisions of this section: Provided, however, That any annuity for which an individual may be found entitled solely by reason of this section shall not accrue before September 1, 1965, or more than 12 months before the date of such reopening whichever is later. [Board Order 66-15, 31 F.R. 8177, Feb. 26, 1966] § 208.11 Establishment of permanent disability for work in the applicant's "regular occupation". (a) An individual shall be deemed to be permanently disabled for work in his regular occupation, whether or not he has been disqualified for such work by his employer, if he has a permanent physical or mental condition, as that term is defined in § 208.10, and he is, in accordance with the occupational disability standards established by the Board, because of such condition physically or mentally unable to perform the duties of such occupation. The cause of the disabling physical or mental condition is immaterial. If the employee's regular occupation is one with respect to which occupational disability standards have not been established by the Board, the occupational disability standards established by the Board for a reasonably comparable occupation in the railroad industry shall govern the determination of the individual's inability to work in his regular occupation; and in the absence of such comparable occupation, such determination shall be made by as certaining whether under the practices generally prevailing in other industries having such occupation, the individual's physical or mental condition is a permanent disqualification for work in his regular occupation. The condition of permanent disability for work in the individual's regular occupation must be established in each particular case in the manner and to the extent prescribed by the Board. (b) In the case of an individual whose last employment was as an officer or employee of a railway labor organization, including a subordinate unit "employer" and to whom continuance in such employment is not available, the disability standards to be applied shall be those applicable to the position to which the individual holds seniority rights or from which he left to assume a position with a railway labor organization. [Board Order 58-85, 18 F. R. 2385, Apr. 22, 1953, as amended by Board Order 66-15, 81 F.R. 3177, Feb. 26, 1966] § 208.17 Establishment of permanent disability for work in any regular employment. (a) An individual shall be deemed to be permanently disabled for work in any regular employment if he has a permanent physical or mental condition, as that term is defined in § 208.10, and he is because of such condition unable to perform regularly, in the usual and customary manner, the substantial and material duties of any regular and gainful employment which is substantial and not trifling, with any employer, whether or not subject to the act. (b) The condition of permanent disability for any regular employment must be established in each particular case in the manner and to the extent prescribed by the Board. The following disabilities, while not an exclusive or exhaustive catalogue of conditions under which an individual may be considered permanently disabled from engaging in any regular employment are disabilities from which the Board will presume, in the absence of facts to the contrary, that an individual is so disabled: (1) Loss of, or permanent loss of use of, both feet. (2) Loss of, or permanent loss of use of both hands, |