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tinuing entitlement to such compensation. Failure to submit the proof may result in suspension of compensation.

(c) Compensation payable on behalf of a child, brother or sister, or grandchild under 5 U.S.C. 8133, which would otherwise be terminated because such individual reached 18 years of age, shall be continued if he or she is a student at the time he or she reaches age 18 for so long a period as he or she continues as a student or marries. An individual shall be considered a student while regularly pursuing a fulltime course of study or training at an institution which is

(1) A school or college or university operated or directly supported by the United States, or by any State and local government or political subdivision thereof, or

(2) A school or college or university which has been accredited by a State or by a State-recognized or nationally recognized accrediting agency or body,

or

(3) A school or college or university not so accredited but whose credits are accepted, on transfer, by not less than three institutions which are so accredited, for credit on the same basis as if transferred from an institution so accredited, or

(4) A technical, trade, vocational, business, or professional school accredited or licensed by the Federal, or a State government or any political subdivision thereof providing courses of not less than 3 months duration, that prepare the child for a livelihood in a trade, industry, vocation, or profession; but not after he or she reaches the age of 23 or has completed 4 years of education beyond the high school level, except that, where the child's 23rd birthday occurs during a semester or other enrollment period, he or she shall continue to be considered a student until the end of such semester or other enrollment period. A child shall not be deemed to have ceased to be a student (1) during any interim between school years if the interim does not exceed 4 months and the child shows to the satisfaction of the Office that he or she has a bona fide intention of continuing to pursue a fulltime course of education or training during the semester or other enrollment

period immediately following the interim or (2) during periods of reasonable duration during which, in the judgment of the Office the child is prevented by factors beyond his or her control from pursuing his or her education.

§ 10.125 Termination of right to compensation for death.

When a beneficiary who is receiving compensation on account of death ceases to be entitled to such compensation, by reason of remarrying before age 60, marrying, reaching the age of 18, ceasing to be dependent, or ceasing to be a student, or becoming capable of self-support, the beneficiary or someone in his or her behalf shall immediately notify the Office of such fact. If such beneficiary receives a check which includes payment of compensation for any period after the date when he or she ceased to be entitled to it, for any of the above reasons, he shall promptly return it to the Office. On remarriage before reaching age 60, a widow or widower entitled to compensation under 5 U.S.C. 8133, shall be paid a lump sum equal to twenty-four times the monthly compensation payments (excluding compensation on account of another individual) to which he or she was entitled immediately before the remarriage.

§ 10.126 Change in status of beneficiaries affecting compensation for death.

When two or more beneficiaries are receiving compensation on account of the death of an employee and any event occurs which may require a reapportionment of the amount of compensation payable to one or more of them, such beneficiary, or someone on his or her behalf, shall promptly notify the Office giving the date of the event and all essential facts. Such reapportionment may become necessary when any such beneficiary dies or marries, when a child, grandchild, brother, or sister of the decedent becomes 18 years old or if over 18, becomes capable of self-support or ceases to be a student, or when a parent or grandparent of the decedent ceases to be dependent, or when a posthumous child of the decedent is born.

DETERMINATIONS OF CLAIMS, HEARING AND REVIEW PROCEDURES

§ 10.130 Processing of claims.

Claims for compensation for disability and death are processed by claims examiners of the Office, whose duty it is to apply the law to the facts as reported, received, or obtained upon investigation. The Federal Employees' Compensation Act, as amended, requires determination of a claim, with findings of fact and a decision for or against the payment of compensation, upon consideration of the claim presented by the claimant, the report by his or her immediate official superior, and the completion of such investigation as the Office may deem necessary. There is no required procedure for the production of evidence, and evidence in written form is accepted. The final authority in the Office in the determination of a claim is vested in the Director of the Office. The decision shall contain findings of fact and a statement of reasons. A copy of the decision, together with information as to the right to a hearing, to a review, and to an appeal to the Employees' Compensation Appeals Board, shall be mailed to the claimant at his or her last known address.

§ 10.131 Request for a hearing.

Any claimant not satisfied with a decision of the Office shall, upon written request made within 30 days after the date of issuance of such decision, be afforded an opportunity for a hearing before an Office representative designated by the Director. The request for hearing shall be made to the Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, D.C. 20211. At such hearing, the claimant shall be afforded an opportunity to present evidence in further support of his or her claim.

§ 10.132 Time and place of hearing; prehearing conference.

(a) The Office representative shall set the time and place of the hearing, and shall mail written notice thereof to the claimant at least 10 days prior to the hearing. The hearing will, when practicable, be set at a time and place convenient for the claimant. The

Office representative may, and when so requested by the claimant shall, afford the claimant a prehearing conference to clarify the issues in his or her claim and, when necessary, shall postpone the hearing for this purpose. Request for such conference may be made to the Office representative orally or in writing.

(b) A hearing may be postponed or cancelled upon the request of the claimant if such request is received by the Office or official of the Office assigned to conduct the hearing at least 48 hours prior to the time of the hearing or at the option of the Office. The unexcused failure of a claimant to appear at a hearing or late notice may result in the assessment of costs against such claimant.

§ 10.133 Conduct of hearing.

(a) In conducting the hearing, the Office representative shall not be bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by section 5 of the Administrative Procedure Act, but may conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose the representative shall receive such relevant evidence as may be adduced by the claimant and shall, in addition, receive such other evidence as such representative may determine to be necessary or useful in evaluating the claim. Evidence may be presented orally or in the form of written statements and exhibits. The hearing shall be recorded, and the original of the complete transcript shall be made a part of the claims record.

(b) Pursuant to 5 U.S.C. 8126 the Office may whenever necessary: (1) Issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles; (2) administer oaths; (3) examine witnesses; and (4) require the production of books, papers, documents, and other evidence, with respect to proceedings conducted for the purpose of determining the validity of any claim under this part.

§ 10.134 Termination of hearing; decision; review of decision.

The Office representative shall fix the time within which he or she will

receive evidence, and shall terminate the hearing by mailing a copy of his tentative decision, setting forth the basis therefor, to the claimant at his or her last known address. Such tentative decision shall become the final decision unless revised within 30 days. A copy of any revision of the tentative decision, setting forth the basis therefor, shall be mailed to the claimant at his or her last known address within such 30 day period.

§ 10.135 Withdrawal of request for hearing; abandonment.

A claimant may withdraw his or her request for a hearing at any time prior to the mailing of the decision, by written notice to the Office representative so stating, or by orally so stating at the hearing. A claimant shall be deemed to have abandoned his or her request for a hearing if he or she fails to appear at the time and place set for the hearing and does not within 10 days after the time set for the hearing, show good cause for such failure to appear.

§ 10.136 Review of decision.

An award for or against the payment of compensation may be reviewed by the Office under 5 U.S.C. 8128(a) at any time, on its own motion or on application of the claimant. No formal application for review is required, but a written request for review, stating reasons why the decision should be changed and accompanied by evidence not previously submitted to the Office, is necessary to invoke action. Such request shall be made to the Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, D.C. 20211.

§ 10.137 Review by Employees' Compensation Appeals Board.

Final decisions of the Office are subject to review by the Employees' Compensation Appeals Board (ECAB), U.S. Department of Labor, under the rules of procedure set forth in Part 501 of this title.

§ 10.138 [Reserved]

§ 10.139 [Reserved]

§ 10.140 Participation in claims process by employing agency.

Procedures conducted with respect to claims filed under the Act are intended to be nonadversary in character. Accordingly, a claimant's employing agency shall not have the right, except as provided in Subpart C of this part, to actively participate in the claims adjudication process. An employing agency may, however, in its discretion, submit affidavits and other relevant and probative statements regarding any particular claim. Such evidence shall be reviewed by the Office and acted upon as appropriate.

§ 10.141 Representation of the Director.

The Director shall be represented in proceedings with respect to any claim conducted before the Employees' Compensation Appeals Board by attorneys from the Office of the Solicitor of Labor. The Office of the Solicitor may, pursuant to the Secretary of Labor's Order of September 23, 1974 (39 FR 34723), refuse to represent the Director with respect to any particular case or matter as appropriate.

§ 10.142 Representation of Claimants.

Any claimant may appoint an individual to represent his or her interest in any proceeding for determination of a claim under this part. Such appointment shall be made in writing or on the record at the hearing. A written notice appointing a representative shall be signed by the claimant or his or her legal guardian and shall be sent to the Office. In any case such representative must be qualified under § 10.143.

§ 10.143 Qualification of representative.

(a) Attorney. Any attorney in good standing who is admitted to practice before a court of a State, territory, district, or insular possession or before the Supreme Court of the United States or other Federal court and is not, pursuant to any provision of law, prohibited from acting as a representative may be appointed as a representative.

(b) Other person. Any other person with the approval of the Office may be appointed as a representative so long as that person is not, pursuant to any provision of law, prohibited from acting as a representative.

and

§ 10.144 Authority of representative. A representative, appointed qualified as provided in this part may make or give, on behalf of the claimant he or she represents, any request or notice relative to any proceeding before the Office under the Act, including formal hearing and review. A representative shall be entitled to present or elicit evidence and make allegations as to facts and law in any proceeding affecting the claimant he or she represents and to obtain information with respect to the claim of such claimant to the same extent as such party. Notice to any claimant of any administrative action, determination, or decision, or request to any party for the production of evidence may be sent to the representative of such claimant, and such notice or request shall have the same force and effect as if it has been sent to the claimant.

§ 10.145 Fees for services.

(a) No fee for representation services rendered in respect to a claim under this part shall be valid, unless prior approval of such fee has been obtained from the Office.

(b) The fee approved by the Office will be determined on the basis of the actual necessary work performed and will generally include but are not limited to the following factors:

(1) Usefulness of the representative's services to the claimant.

(2) The nature and complexity of the claim.

(3) The actual time spent on development and presentation of the claim.

(4) The amount of compensation accrued and potential future payments. (5) Customary local charges for similar services.

(6) Professional qualifications of the representative.

(c) In every case where a representative's fee is desired, an application for approval of the fee shall be made to the Office. Each request for approval

of a fee shall be accompanied by a complete itemized statement, in duplicate, describing the services rendered. Such itemization shall contain the following information:

(1) The dates that services began and ended in addition to all dates on which conferences were held, documents or letters prepared, telephone calls made, etc.

(2) A description of each service rendered with the amount of time spent on each type of service.

(3) The amount of the fee which the representative desires for services performed.

(4) The amount of fees requested, charged or received for services rendered on behalf of the claimant before any State or Federal court or agency, in a similar or related matter.

(5) A statement explaining the basis for the amount of the fee requested.

(d) The Office will arrange for the claimant to review the request for a fee and to comment as to the services provided and as to the reasonableness of the fee.

(e) In considering any request for such a fee, the Office will not recognize such items as:

(1) Work performed before any other State or Federal agency or court including the Employees' Compensation Appeals Board, and any State or Federal Court.

(2) Any contract for the payment of an agreed sum or any contingent contract.

(3) Expenses incurred by the representative for services performed.

(f) The Office will not pay or assist in the collection of any representative fee. Neither will compensation payments be routinely forwarded to the representative with or without the claimant's approval.

(g) Any claimant aggrieved or adversely affected by an award of a fee, may request a hearing or reconsideration by the Office. Thereafter, the appeals procedure described in this subpart may be utilized by the claimant.

(h) A representative aggrieved or adversely affected by an award of a fee, may utilize the appeals procedure described in this subpart.

(i) Any person who receives a fee, other consideration or gratuity on account of services rendered with respect to a claim under this part, unless approved by the Office, or who solicits employment for himself or another in respect to a case or claim, under (or to be brought under) this Act shall be guilty of a misdemeanor and upon conviction of each offense, will be punished by a fine of not more than $1,000 or imprisioned not to exceed 1 year or both such fine and imprisonment.

§ 10.146 [Reserved]

§ 10.147 [Reserved]

§ 10.148 [Reserved]

§ 10.149 [Reserved]

§ 10.150 Statement relative to substantive rules.

(a) The principal function of the Office and its subordinate parts is that of adjudicating claims for workers' compensation. This function is quasijudicial in character and involves the application of statutes and principles of law to resolve factual situations. This field of activity is within the specialized branch of the law generally referred to as "workers' compensation," and has its own particularized principles which have general applicability to workers' compensation statutes (State and Federal), as such statutes have certain common or underlying similarity in respect to the meaning of terms and phrases, and in respect to scope, jurisdiction, and general basic concepts of employer liability.

(b) In the administration of the Act, the Office has one general policy, which is to follow and to adhere to the principles of workers' compensation law as stated in the opinions of the Supreme Court, the Federal Circuit Courts of Appeal, and the District Courts of the United States, as they may appropriately be applied or have been determined by the Employees' Compensation Appeals Board (ECAB) to apply in like situations arising under the Act. In addition, decisions and opinions of the judicial tribunals of the several States furnish principles of law of general applicability in the

specialized field of workers' compensation, which form parts of the foundation of general principles relied upon in the application and interpretation of the Act. The Office applies the provision of the Act applicable in respect to a particular case or situation, to the extent that such provision can readily be applied without extrinsic aid, but where such aid is necessary the source thereof is the body of principles embodied in authoritative decisions of the courts and the ECAB within such well-recognized branch of the law.

Subpart C-Continuation of Pay

GENERAL

§ 10.200 Statutory provisions.

(a) Pub. L. 93-416, approved September 7, 1974, significantly revised 5 U.S.C. 8118 to provide that an employee ["Employee" for the purposes of this subpart means only such employees as are enumerated in § 10.5(a)(11) (i), (iii), (iv), (vi)] who has filed a claim for a period of wage loss due to a traumatic injury shall be entitled under certain circumstances, to have his regular pay continued for a period not to exceed 45 days pending the OWCP's determination of such employee's claim for compensation under the Act.

(b) Pursuant to 5 U.S.C. 8118(e), pay continued under this subpart shall not be considered compensation and shall be subject to all applicable taxes and other payroll deductions.

PROCEDURES

§ 10.201 Right to continuation of pay.

(a) An employee who sustains a disabling, job-related traumatic injury is entitled to the continuation of his or her regular pay for a period not to exceed 45 days without a break in time unless such right is controverted by the employee's employing agency.

(b) The entitlement to compensation of any person excluded from the continuation of pay provisions of the Act shall begin from the date of pay loss, subject to other applicable sections of the Act.

60-048 0-80--3

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