§ 10.202 Controversion by employing

agency.

(a) The employing agency may, on the basis of the information submitted by the employee, or secured on investigation, controvert a claim and terminate an employee's pay only if:

(1) The disability is a result of an occupational disease or illness; or

(2) The employee falls within the exclusions of 5 U.S.C. 8101(1)(B) or (E);

or

(3) The employee is neither a citizen nor resident of the United States or Canada (i.e., a foreign national employed outside of the United States or Canada); or

(4) The injury occurred off the employing agency's premises and the employee was not engaged in official "off premise" duties; or

(5) The injury was caused by the employee's willful misconduct, the employee intended to bring about the injury or death on himself or herself or another person or the employee's intoxication was the proximate cause of the injury; or

(6) The injury was not reported on Form CA-1, within 30 days following the injury; or

(7) Work stoppage first occurred six months or more following the injury;

or

(8) The employee initially reports the injury after his or her employment has terminated; or

(9) The employee is enrolled in the Civil Air Patrol, Peace Corps, Job Corps, Youth Conservation Corps, Work Study Programs, or other similar groups.

(b) In all other cases, the employing agency may controvert an employee's right to continuation of pay, however, such employee's regular pay shall not be interrupted during the 45 day period unless the controversion is sustained by the Office and until the employing Agency is so notified.

§ 10.203 Manner of controversion.

An employing agency may controvert a claim for purposes of this subpart by completing the indicated portion on Form CA-1, Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, and submitting detailed in

formation in support of the controversion to the Office.

§ 10.204 Termination of continuation of pay.

(a) Where pay is continued after an employee stops work due to a disabling traumatic injury, such pay shall not be terminated until:

(1) The agency receives medical information from the attending physician to the effect that the employee is no longer disabled; or

(2) The agency receives notification from the Office that pay should be terminated; or

(3) The expiration of 45 days.

(b) The 45 days during which pay may be continued pursuant to this subpart are calendar days and if the employee has stopped work due to the disabling effects of the injury, the period starts at the beginning of the first full day or first full shift during which the disability begins provided such disability began within six months of the occurrence of the injury. The agency will keep the employee in a pay status for any fraction of a day or shift on which the disability begins with no "charge" to the 45 day period. If the employee stops work for only a portion of a day or shift (other than the day or shift when disability begins), such day or shift will be considered as one calendar day. If the employee is not immediately disabled due to the injury, the 45 days will begin on the first full day or the first full shift when disability begins.

(c) Where pay is continued at a rate subsequently determined by the Office to be incorrect, the Office shall notify the agency of the correct pay rate and the agency will make the necessary adjustment.

§ 10.205 Regular pay defined.

(a) For a regular full-time or parttime worker in the regular work force of the agency who works the same number of hours per week, the weekly pay rate shall be equal to the number of hours regularly worked each week times the hourly pay rate on the date of injury, exclusive of overtime.

(b) For a regular part-time worker in the regular work force of the agency who does not work the same number

of hours per week the weekly pay rate shall be the average weekly earnings for the one year period prior to the date of injury, exclusive of overtime.

(c) For an irregular WAE, intermittent, etc., worker who is not a part of the agency's regular full or part-time work force, the weekly pay rate shall be the average of the employee's weekly earnings during the one year prior to the injury, but the average annual earnings may not be less than 150 times the average daily wage earned within one year prior to the date of injury. (The daily wage rate shall be the hourly rate times 8.) Premium, night or shift differential, Sunday or holiday pay, or other extra pay should be included in all instances; however, overtime pay must not in any instance (i.e., either regular or irregular employment) be made a part of the continuation of pay rate.

§ 10.206 Agency accounting and reporting of continuation of pay.

(a) Pending development of a system within the Office for directly capturing and tabulating data on continuing payments to employees under 5 U.S.C. 8118, each agency and instrumentality of the United States having an employee who was in a continuation of pay status during the calendar quarter shall submit a report to the Office within 30 days after the end of each quarter (address: Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, D.C. 20211).

(b) Quarterly reports are to include data on all continuation of pay cases paid in the quarter for only those employees who have returned to work or exceeded the 45-day period by the last pay date of the reporting agency or instrumentality during the quarter (employees who have not returned to work or exceeded the 45-day period by the last pay date of the quarter are to be reported in the following quarter).

(c) Reported summary data for employees returning to work during the quarter is to include:

(1) Total number of employees provided such continuation of pay.

(2) Total number of workdays or shifts (full workdays) for which these employees were paid during the quar

ter (and the earlier quarter if return to work did not occur during such earlier quarter).

(3) Total amount paid to all employees during the quarter (and the earlier quarter if return to work did not occur during such earlier quarter).

OFFICIAL SUPERIOR'S AND
BENEFICIARIES' RESPONSIBILITIES

§ 10.207 Official superior's responsibility in continuation of pay case.

(a) Upon receiving notice that an employee has suffered an employment related traumatic injury an official superior shall:

(1) Promptly authorize medical care in accordance with Subpart E of this part;

(2) Provide the employee with Form CA-1 for reporting the injury and upon receipt of the completed form, return to the employee the "Receipt of Notice of Injury.";

(3) Advise the employee of the right to elect continuation of regular pay or use annual or sick leave, if the injury is disabling;

(4) Inform the employee whether continuation of pay will be controverted, and if so, whether pay will be terminated, and the basis for such action;

(5) Promptly submit Form CA-1 fully completed by both employee and official superior together with all other pertinent information and documents to the Office within two working days following the official superior's receipt of such completed form from the employee.

(6) If the official superior controverts the claim (whether or not pay is terminated), explanation for the controversion will be submitted to the OWCP on the official superior's portion of Form CA-1 and/or by separate narrative report.

(7) In addition, such official superior shall report to the Office any injury resulting in probable disability or death in accordance with this part, and thereafter make any additional reports as the Office may require.

(b) In the case of a traumatic injury for which the continuation of pay may be appropriate, the injured employee's official superior shall to the best of his or her ability inform such employee of

employee of his or her rights under the Act.

(d) Claims for compensation for permanent disability which involve the loss, or loss of use, of a member or function of the body, or loss, or loss of use of any other important external or internal organ of the body excluding the heart, brain, and back, as listed in 5 U.S.C. 8107 (see § 10.304), shall be filed on Form CA-4 or CA-7 as appropriate which the official superior shall furnish.

(e) Claims for serious disfigurement of the face, head, or neck shall be made on Form CA-4 or CA-7 as appropriate (which shall be furnished by the official superior). If any compensation has been paid or is payable for any such prior disfigurement the date of such prior injury, the amount of compensation and the source thereof shall be stated in the said CA-4 or CA7.

(f) Form CA-4 shall be filed with the Office upon termination of disability if the duration of disability should be less than 10 calendar days, or at the expiration of 10 calendar days from the date pay stops if disability continues beyond that date.

§ 10.107 Application for augmented compensation for disability.

(a) While the disabled employee has one or more dependents as defined in 5 U.S.C. 8110 such employee's basic compensation for disability shall be augmented as provided in said section. Form CA-4 includes an application for such augmented compensation.

(b) Augmented compensation payable while a disabled employee has an unmarried child as defined by 5 U.S.C. 8110 which would otherwise terminate because the child reaches the age of 18, may be continued while the child is a student regularly pursuing a fulltime course of study or training as defined by the above said section of the Act.

(c) The disabled employee claiming augmented compensation under this section shall furnish, when so required by the Office, proof of continuing entitlement to augmented compensation as set forth in paragraph (a) of this section.

(d) The disabled employee receiving augmented compensation under this section shall promptly notify the Office of the happening of any event which would terminate an employee's continued entitlement to augmented compensation under the provisions of 5 U.S.C. 8110. Any checks or payments received after the occurrence of such event shall be returned promptly to the Office.

§ 10.108 How to file an original claim for death benefits.

An original claim for death benefits may be filed by any survivor of a deceased employee (see section 8133 of the Act) or any other person acting on behalf of such survivor. Form CA-5 is provided by the Office for this purpose, and should be executed as provided therein. An original death claim may be filed by delivering a completed Form CA-5 to the Office, or to any person designated by the Office to receive such claim. The deceased employee's former official superior is so designated to receive such claims on behalf of the Office, and the person claiming benefits should submit the claim to such former official superior, unless special circumstances require a different procedure. The official superior shall, when it is practicable, furnish to all persons likely to be entitled to compensation for death of an employee, a Form CA-5 or CA-5b with information as to the use of the form for making claim for compensation and procedure in respect of filing such form. The furnishing of assistance in preparing such form or in obtaining evidence relating to the claim shall be without charge by the official superior. Any claim or paper purporting to claim compensation on account of death, submitted to the deceased employee's former official superior, shall be transmitted promptly to the Office. § 10.109 Claims for balance of schedule due at death from other causes.

(a) If an employee files a valid claim for a scheduled loss (permanent disability which involves the loss or loss of use of a member or function of the body as provided in 5 U.S.C. 8107) in his or her lifetime and dies from causes other than the injury, before

the entire amount due for such schedule is paid, claim for such unpaid balance may be made on an application form approved by the Office as follows: By the widow, widower, or child in the proportions and upon the conditions and in the order named in 5 U.S.C. 8109(a)(3)(D). If there is no surviving widow, widower, or child, then a claim for such unpaid balance may be made pursuant to § 10.108 in the proportions and upon the conditions and in the order as follows: To the parent or parents wholly dependent for support upon the decedent. If there is no parent wholly dependent then to a partially dependent parent or parents in equal shares with any partially dependent brother, sister, grandparent or grandchild. If one or more of the brothers, sisters, grandparents, or grandchildren are wholly dependent and a parent or parents and other brothers, sisters, grandparent, or grandchildren are partially dependent, then 75 percent will be awarded to such wholly dependent person or persons equally and the balance divided equally among such partially dependent persons. In the event there is no surviving widow, widower, child, or wholly dependent parent, and the foregoing apportionment of such compensation would result in injustice, the Office may, in its discretion, make such other apportionment as justice would require.

(b) The right of any survivor referred to in paragraph (a) of this section shall be conditioned upon his or her being alive to receive any payment and any such survivor shall not have a vested right to any such payment. Claims for continuation of payments under 5 U.S.C. 8109 shall be made in like manner and governed by § 10.124.

(c) The entitlement of any survivor to payments under 5 U.S.C. 8109 shall cease upon the happening of any event which would terminate such right under 5 U.S.C. 8133. The termination of such right shall be governed by § 10.125. In the event of any reapportionment made necessary by such termination prompt notification shall be made to the Office in accordance with § 10.126.

(d) As to the disposition of any balance not paid under the foregoing paragraphs see § 10.306.

EVIDENCE

§ 10.110 Affidavit or report by employee of employment and earnings.

The Office may require a partially disabled employee to submit an affidavit or other report as to his or her earnings either from employment or self-employment. If such individual, when required, fails within a reasonable time to submit such affidavit or report or if in such affidavit or report the employee knowingly omits or understates any part of such earnings or remuneration such employee shall forfeit his or her right to compensation with respect to any period for which such affidavit or report was required to be made, and any compensation already paid may be recovered by deducting the amount thereof from compensation payable to him or her or otherwise according to law. Earnings from employment referred to in this section or elsewhere in this part means gross earnings or wages before any deductions whatsoever have been taken out of such wages, and include the value of subsistence, quarters, or other advantages received in kind as part of the wage or remuneration. In general, earnings from self-employment means the rate of pay the employee estimates it would cost him or her to have someone else perform the work the employee is performing.

the injured employee returns to work or when his or her disability ceases. Form CA-3, Report of Termination of Disability and/or Payment, is provided for this purpose. It shall be used unless a report of termination of disability is made to the Office on Form CA-1 or CA-2, or CA-4, or CA-7 as appropriate, or in some other manner.

§ 10.121 Recurrence of disability for work. (a) The official superior shall notify the Office if, after the employee returns to work, the same injury causes such employee to stop work again. This report shall be made on Form CA-2a, Notice of Employee's Recurrence of Disability and Claim for Pay/ Compensation. If the injured employee does not return to duty prior to the date this form is submitted to the Office, an additional report shall be made on Form CA-3 or in a similar manner when the employee returns to work or his/her disability ceases.

(b) If the employee wishes to claim compensation as a result of the recurrence, a Form CA-4, CA-7, or CA-8 is required as appropriate. All parts of the appropriate form plus a medical report on Form CA-20 (or in narrative form), must be completed.

§ 10.122 Claims for continued compensation for disability.

Form CA-8, Claim for Continuing Compensation on Account of Disability, is provided to claim compensation for additional periods of time after Form CA-4 is submitted to the Office. While disability continues, claim on this form shall be submitted every 2 weeks until the employee is otherwise instructed by the Office. The employee shall complete and sign the face of the form, and the official superior shall complete the reverse side. The official superior also shall complete items 1-6 on the front of the attached Form CA-20a and insert the appropriate Office address on the back thereof, and then detach the Form CA-20a and send it to the attending physician for completion and submission to the Office. The official superior will forward the completed Form CA-8 to the Office within 2 working days.

§ 10.123 Employee's obligation to return to work or to seek work when able. When total disability to perform work ceases and the employee is able to perform a part of his usual duties, or to perform work of a different nature, the employee must seek such suitable work as he or she is able to perform, either in Government or private employment, unless it has already been provided for such employee, and shall accept such work or offer of work secured for him or her. An employee who has not been regularly employed during the period covered by such employee's claim, and who is only partially disabled, shall state in his or her claim what efforts he or she has made to obtain suitable employment giving the names and addresses of persons or concerns to whom the employee has applied for work. If the employee has not been offered or has not been able to secure work which he or she is able to do, he or she shall so state. If a partially disabled employee refuses to seek suitable work or refuses or neglects to work after suitable work is offered to, procured by, or secured for the employee, he or she shall not be entitled to any compensation.

[40 FR 6877, Feb. 14, 1975; 40 FR 14750, Apr. 2, 1975]

§ 10.124 Continuance of compensation on account of death.

(a) A beneficiary to whom an award of compensation has been made on account of an employee's death, pursuant to his or her original claim, shall submit to the Office additional claims for continuance of compensation to the Office once each year. Form CA12 is provided by the Office for this purpose, and will be sent to the beneficiary when an additional claim is required. Failure to submit the form may result in suspension of compensation.

(b) A beneficiary to whom an award of compensation has been made for a child, brother or sister, or grandchild after he or she has reached the age of 18 because he or she continues to regularly pursue a full-time course of study or training shall furnish, when so required by the Office, proof of con