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(b) Individuals whose eligibility is based upon permanent disability for regular employment. (1) If such an individual renders compensated service to any person, whether or not an employer, through or after the designated beginning date, such fact must be reconciled with the claim of permanent disability for any regular and gainful employment before eligibility for such a disability annuity is established. Where, however, it is shown that the individual, notwithstanding his rendition of compensated service is disabled, the following shall apply:

(2) If all the individual's compensated service ended before the filing date of his annuity application or if the individual's compensated service continued through such filing date, the annuity cannot begin to accrue earlier than the date following the last day of such compensated service: Provided, however, That if the individual relinquished rights to all compensated service before the filing date of his application, his annuity may begin to accrue as early as the day after that on which he ceased such service. (For the effect of a return to service after accrual, see Part 217 of this chapter.)

(c) An individual whose eligibility is based upon permanent disability for work in his regular occupation. (1) If an individual renders compensated service through or after the designated beginning date to any person, whether or not an employer, in his regular occupation or in any occupation for which the same occupational disability standards have been established, such fact must be reconciled with the claim of permanent disability for work in his regular occupation. Where, however, it is shown that an individual, notwithstanding his rendition of compensated service in any occupation, is permanently disabled for work in his regular occupation the following shall apply:

(2) If all the individual's compensated service to any person, whether or not an employer, ended before the filing date of his annuity application or if the individual's compensated service to any person, whether or not an employer, continued through such filing date, the annuity cannot begin to accrue earlier than the date following the last day of compensated service to any such person: Provided, however, That if the individual relinquished rights to all compensated service before the filing date of his application. his annuity may begin to ac

crue as early as the day after that on which he ceased such service. (For the effect of a return to service after accrual, see Part 217 of this chapter.)

[12 F.R. 1136, Feb. 19, 1947, as amended at 12 F.R. 5610, Aug. 21, 1947; Board Order 60–7, 25 F.R. 865, Feb. 2, 1960]

§ 214.8 Applicant's general right to change date.

In any case where a change of beginning date is not inconsistent with other provisions of the act or the regulations in this chapter, the applicant shall have the right, prior to the date upon which his claim is certified for payment, to change the annuity beginning date: Provided, however, That no such change shall be effective unless and until a request or designation in writing signed by the applicant is received by the Board on or before the date of his death.

[4 F.R. 1487, Apr. 7, 1939]

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division 4 and subdivision 5 of subsection (a) prior to attaining age sixty-five. [12 F.R. 1137, Feb. 19, 1947]

§ 216.2

Relinquishment of rights as condition for payment.

No annuity other than a disability annuity shall be certified for payment until the applicant has established in accordance with this part that he has relinquished all rights which he may have had to return to the service of (a) any employer; and (b) the person, whether or not an employer, by whom he was most recently employed when the annuity began to accrue; and (c) any person with whom he holds, at the time the annuity begins to accrue, any rights to return to service; and (d) any person with whom he ceased service in order to have his annuity begin to

accrue.

[4 F.R. 1487, Apr. 7, 1939]

216.3

Relinquishment of rights in case

of disability annuity.

In the case of an individual whose eligibility for an annuity is based upon permanent disability for any regular and gainful employment or upon permanent disability for work in his regular occupation, an annuity is payable prior to age 65 even though he retains rights to return to service until age 65: Provided, however, That such individual shall upon attainment of age 65 establish that he has in accordance with this part relinquished in the manner and to the extent required in the case of an age annuity any rights which he may have to return to service; otherwise payment of his annuity shall not be made for any calendar month in which he becomes or is 65 years of age or over until such individual so relinquishes such rights. [12 F.R. 1137, Feb. 19, 1947]

§ 216.4 What constitutes relinquishment of rights.

An individual shall be deemed to have relinquished his rights to return to the service of any employer, whether or not under the act, whenever it is established to the satisfaction of the Board:

(a) That the records of such employer evidence that, because of some action taken by the employer, all rights which the individual may have had no longer exist; or

(b) That such individual has by a written or oral notice communicated to the employer a clear and unambiguous

intention thereby to terminate any and all rights to return to the service of such employer (such relinquishment of rights shall be presumed to have occurred whenever such individual has certified to the Board that he has relinquished his rights to return to service, the employer has been notified by the Board of such certification, and the employer has expressly confirmed such certification or has failed to reply within ten days following the mailing of the notification);

or

(c) That there has been communicated to the employer by a duly authorized agent of the individual a clear and unambiguous intention on the part of the individual thereby to terminate any and all rights to return to the service of such employer; or

(d) That the individual has died; or

(e) That some events have occurred which under the established rules or practices in effect on the employer automatically terminate all rights to return to service; or

(f) That some cognizable action has been taken by the individual or his employer or by both which when considered in the light of the facts and circumstances of the particular case clearly and unambiguously manifest a termination of all rights to return to service; or

(g) That the individual has permanently ceased service in the event no rights to return to the position exist.

[4 F.R. 1487, Apr. 7, 1939, as amended by Board Order 60-7, 25 F.R. 865, Feb. 2, 1960]

PART 217 MONTHS ANNUITIES NOT PAYABLE BY REASON OF WORK

Sec. 217.1

217.2

217.3

217.4

217.5

Statutory provisions.

Loss of annuity for month in which compensated service is rendered. Loss of disability annuity because of earnings and penalties.

Limit of loss of disability annuity because of earnings and penalties. Exception concerning service to a local lodge or division.

AUTHORITY: The provisions of this Part 217 issued under secs. 2, 10, 50 Stat. 309, as amended, 314, as amended; 45 U.S.C. 228b, 2281.

§ 217.1 Statutory provisions.

No annuity shall be paid with respect to any month in which an individual in receipt of an annuity hereunder shall render compensated service to an employer or to the last person by whom he was employed

prior to the date on which the annuity began to accrue. Individuals receiving annuities shall report to the Board immediately all such compensated service. No annuity under paragraph 4 or 5 of subsection (a) of this section shall be paid to an individual with respect to any month in which the individual is under age sixty-five and is paid more than $100 in earnings from employment or self-employment of any form: Provided, That for purposes of this paragraph, if a payment in any one calendar month is for accruals in more than one calendar month, such payment shall be deemed to have been paid in each of the months in which accrued to the extent accrued in such month. Any such individual under the age of sixty-five shall report to the Board any such payment of earnings for such employment or self-employment before receipt and acceptance of an annuity for the second month following the month of such payment. A deduction shall be imposed, with respect to any such individual who fails to make such report, in the annuity or annuities otherwise due the individual, in an amount equal to the amount of the annuity for each month in which he is paid such earnings in such employment or self-employment, except that the first deduction imposed pursuant to this sentence shall in no case exceed an amount equal to the amount of the annuity otherwise due for the first month with respect to which the deduction is imposed. If pursuant to the third sentence of this subsection an annuity was not paid to an individual with respect to one or more months in any calendar year, and it is subsequently established that the total amount of such individual's earnings during such year as determined in accordance with that sentence (but exclusive of earnings for services described in the first sentence of this subsection) did not exceed $1,200, the annuity with respect to such month or months, and any deduction imposed by reason of the failure to report earnings for such month or months under the fifth sentence of this subsection, shall then be payable. If the total amount of such individual's earnings during such year (exclusive of earnings for services described in the first sentence of this subsection) is in excess of $1,200, the number of months in such year with respect to which an annuity is not payable by reason of such third and fifth sentences shall not exceed one month for each $100 of such excess, treating the last $50 or more of such excess as $100; and if the amount of the annuity has changed during such year, any payments of annuity which become payable solely by reason of the limitation contained in this sentence shall be made first with respect to the month or months for which the annuity is larger. (Section 2(d) of the act.)

[Board Order 60-2, 25 F.R. 593, Jan. 23, 1960]

§ 217.2 Loss of annuity for month in which compensated service is rendered.

If an individual in receipt of an annuity renders compensated service, he shall not be paid an annuity with respect to any month in which such service is rendered to:

(a) An employer;

(b) Any person whether or not an employer by whom he was most recently employed when his annuity begins to accrue;

(c) Any person with whom he held, at the time the annuity begins to accrue, any rights to return to service;

(d) Any person with whom he ceased service in order to have his annuity begin to accrue.

[Board Order 60–2, 25 F.R. 593, Jan. 23, 1960; 25 F.R. 1074, Feb. 6, 1960]

§ 217.3 Loss of disability annuity because of earnings and penalties.

(a) The annuity of an individual based upon either the disability described in § 208.7(a) (3) or (4) of this chapter shall not be paid with respect to any month in which the individual is under age 65 and earns more than $100 in employment or self-employment of any form. Any such individual under the age of 65 shall report to the Board any such earnings from employment or selfemployment before receipt and acceptance of an annuity for the second month following the month of such payment.

(b) If such report is not made in accordance with paragraph (a) of this section, a deduction equal to one month's annuity shall be imposed as a penalty for a first failure to report as required. For any subsequent failure, a penalty deduction shall be equal to the individual's annuity for the months in which he had excess earnings and for which his report was not timely.

[Board Order 60-2, 25 F.R. 593, Jan. 23, 1960] § 217.4 Limit of loss of disability an

nuity because of earnings and penalties.

(a) If an individual in receipt of a disability annuity has earnings of not more than $1,200 in a calendar year after 1958 (exclusive of earnings from an employer and from the person by whom he was last employed), his annuities, if any, withheld during such year because of excess earnings or as penalties for failure to make timely report shall

become payable to him. If such earnings of such individual are in excess of $1,200 in such year, his loss of annuity in the year shall be limited to one month's annuity for each $100 of the excess over $1,200, treating the last $50 or more of the excess as $100.

(b) If an individual in receipt of a disability annuity has earnings of over $100 in a calendar month of any calendar year after 1958 and fails to report such earnings before receiving the annuity payable to him for the second month following the month of such earnings, his penalties for failure to make timely report in such year shall be limited to an amount equal to not more than one month's annuity for each $100 of earnings in excess of $1,200 in such calendar year (exclusive of earnings from an employer and from the person by whom he was last employed), treating the last $50 or more of such excess as $100.

(c) Any annuities withheld in a calendar year after 1958 in excess of the amount provided by this section shall become payable at the end of the calendar year and shall be made first with respect to the month or months in such year for which the annuity is larger. [Board Order 60-2, 25 F.R. 594, Jan. 23, 1960]

§ 217.5 Exception concerning service to a local lodge or division.

In determining whether an annuity is subject to the provisions of this part the Board shall disregard any compensated service rendered after December 31, 1936, to a local lodge or division of a railwaylabor-organization employer if the compensation for such service is required to be disregarded under the provisions of § 222.3 (f) of this chapter.

[Board Order 40-742, 6 F.R. 298, Jan. 14, 1941]

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§ 220.1 Meaning of service.

Service shall consist of time devoted to active service as an employee for compensation or time with respect to which remuneration is paid for time lost as an employee. Such service shall be computed in accordance with § 220.2 and the creditability thereof shall be determined in accordance with § 220.3, and shall be verified in accordance with § 220.4. (See also § 203.3 of this chapter.)

[4 F.R. 1488, Apr. 7, 1989]

§ 220.2 What constitutes a month and a year of service.

Any calendar month in which an individual renders service for compensation or for which he receives remuneration for time lost as an employee constitutes a month of service, irrespective of the amount of such service or of the amount of time for which such remuneration is received. Twelve such months, consecutive or otherwise, shall be a year of service: Provided, however, That in totaling the service of an employee who has performed 126 months or more of creditable service, an ultimate fraction of 6 months or more shall constitute a year of service. In all other cases, ultimate fractions shall be taken at their actual value.

[Board Order 55-89, 20 F.R. 3708, May 27, 1955]

§ 220.3 Creditability of service.

(a) When a company is not an employer. Service rendered to any person or company other than an employer shall not be creditable except as follows: (1) Service rendered prior to August 29, 1935, for a person or company which was an employer on August 29, 1935, shall be creditable even though such person or company was not an employer at the time the service was rendered; (2) service rendered to any person or company which was at some time during its existence an express company, sleeping-car company or carrier by railroad and which was a predecessor of an express company, sleeping-car company or carrier by railroad subject to the act on August 29, 1935, shall be creditable even though such person or company was not an employer at the time such service was rendered and (3) service rendered prior to August 29, 1935, to any person or company in the performance of operations involving the use of standard railroad equipment provided such opera

tions were performed by an employer on August 29, 1935.

(b) Place of performance of service. Service performed for an employer shall be creditable whether rendered within or without the United States, if such employer conducts the principal part of its business within the United States; but if an employer other than a local lodge or division or a general committee of a railway labor organization, does not conduct the principal part of its business within the United States, service to such an employer shall be creditable only when performed by the employee within the United States. Service performed for a local lodge or division or for a general committee of a railway labor organization shall be creditable in accordance with § 203.5 (b) and (c) of this chapter. Service rendered outside the United States by an individual not a citizen or resident of the United States to an employer who is required under the laws applicable in the place where the service is rendered to employ therein, in whole or in part, citizens or residents thereof is not creditable.

(c) Service based on time lost. Any month during which an individual performs no active creditable service, but for all or part of which he received remuneration as an employee, which remuneration is creditable as compensation within the meaning of Part 222 of this chapter shall be creditable in the same manner as active service.

(d) Service prior to January 1, 1937. If an individual was not an employee on August 29, 1935, no service prior to January 1, 1937, shall be creditable.

(e) Service prior to January 1, 1937, where individual was employee on August 29, 1935. Service performed prior to January 1, 1937, by an individual who was an employee on August 29, 1935, shall be creditable in the manner and to the extent provided in paragraph (f) of this section but not so as to cause the total years of service to exceed 30: Provided, however, That with respect to any such individual who rendered service to any employer after January 1, 1937, and who on August 29, 1935, was not an employee of an employer conducting the principal part of its business in the United States no greater proportion of his service rendered prior to January 1, 1937, shall be included in his "years of service" than the proportion which his total compensation (without regard to any limitation on the amount of com

pensation otherwise provided in the act) for service after January 1, 1937, rendered anywhere to an employer conducting the principal part of its business in the United States or rendered in the United States to any other employer bears to his total compensation (without regard to any limitation on the amount of compensation otherwise provided in the act) for service rendered anywhere to an employer after January 1, 1937.

(f) Service subsequent to December 31, 1936. All service rendered as an employee after December 31, 1936, including service performed after age 65 is attained, shall be creditable even in excess of 30 years: Provided, however, That in any case in which both service prior to January 1, 1937, and service subsequent to December 31, 1936, are to be credited, all service subsequent to December 31, 1936. shall first be credited, and if it be less than 30 years, then service prior to January 1, 1937, shall be included, but only to an extent sufficient to bring the total of all years of service to 30: Provided further, That whenever service prior to January 1, 1937, is to be included it shall be taken in reverse order.

(g) Service performed subsequent to the beginning date of an annuity. Service rendered as an employee after the beginning date of an annuity shall be creditable toward any annuity under Part 208 of this chapter, and such annuity may be recomputed because of such additional service: Provided, That an application for recomputation is filed as prescribed in § 225.11 (a) of this chapter: Provided further, That such recomputation will not result in a decrease in such annuity. If such annuity was granted upon the basis of disability and the disability annuity ceased before the annuitant attained age 65, an application for recomputation shall not be required.

(h) Service as employee representative. Service rendered as an employee representative, as defined in § 205.2 of this chapter, shall be creditable in the same manner and to the same extent as though the organization by which he was employed were an employer.

(i) Service after December 31, 1936, to a local lodge or division. Service rendered in any month after December 31, 1936, to a local lodge or division of a railway-labor-organization employer with respect to which service an individual would be an employee within the

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