employment occurs away from his home office or outside the United States, and if the relatives desire that the body be embalmed and transported in a hermetically sealed casket to the home of the employee, the Bureau may upon application pay the reasonable and necessary expenses of such embalming and transportation, in addition to the allowance for burial expense.

(b) When the death of an employee results from causes other than the injury and the employee is away from his home or official station for the purpose of receiving medical or other services, appliances, or supplies under 5 U.S.C. 8103 or examination under 5 U.S.C. 8123 if so desired by his relatives the body shall, in the discretion of the Bureau, be embalmed and transported in a hermetically sealed casket to the home or last place of residence of the employee at the expense of the Employee's Compensation Fund. If no request is made for the return of the body by decedent's relatives, the Bureau should be notified immediately by telegram, reporting all pertinent details, with request for instructions concerning arrangements for disposition of the remains.

[14 F.R. 7376, Dec. 9, 1949, as amended at 25 F.R. 1285, Jan. 31, 1970]

§ 1.19

Overpayments by mistake.

(a) Whenever by reason of an error of fact or law an overpayment has been made to an individual who is entitled to further payments, proper adjustment shall be made by decreasing subsequent payments of compensation, having due regard to the probable extent of future payments, the rate of compensation, the financial circumstances of the individual, and any other relevant factors, so as to minimize any resulting hardship upon such individual. In the event such individual dies before such adjustment has been completed a similar adjustment shall be made by decreasing subsequent payments, if any, payable under this act with respect to such individual's death.

(b) Where there are no further payments due and an overpayment has been made to an individual by reason of an error of fact or law such individual, as soon as the mistake is discovered or his attention is called to the same, shall refund to the Bureau any amount so paid, or upon failure to make such refund the Bureau may proceed to recover the same.

(c) There shall be no adjustment or recovery, under paragraphs (a) or (b), of this section, by the United States in any case where incorrect payment has been made to an individual who is without fault and where adjustment or recovery would defeat the purpose of this act or would be against equity and good conscience.

[14 F.R. 7376, Dec. 9, 1949]

§ 1.20

§ 1.21

[Reserved]

Records relating to Federal Employees' Compensation Act matters as records of Bureau of Employees' Compensation.

All records, medical and other reports, statements of witnesses and other papers relating to the disability or death of a civil employee of the United States or other person entitled to compensation benefits from the United States under said act and all amendments or extensions thereof, are the official records of the Bureau and are not records of the agency, establishment or department making or having the care or use of such records. Such records and papers pertaining to any such injury or death are confidential and no official or employee of a Government establishment who has investigated or secured statements from witnesses and others pertaining to a claim for compensation, or any person having the care or use of such reports, shall disclose information from or pertaining to such records to any person, except upon the written approval of the Bureau.

[35 F.R. 1286, Jan. 31, 1970]

§ 1.22 Inspection of records of Bureau relating to FECA matters.

(a) Confidentiality of Records. Records of the Bureau pertaining to an injury or death are confidential, and are generally exempt from disclosure to the public under section 552(b) (6) of Title 5 U.S.C., the terms of which are applied in this section. (See also Part 70 of Title 29, Code of Federal Regulations regarding Department of Labor documents exempt from disclosure.)

(b) Release to the employee or to his beneficiary. If an employee or, in the case of death, his beneficiary or the authorized representative of an employee or beneficiary requests information from the Bureau's records, he shall at the discretion of the Bureau be permitted to examine the records of the case in which

he is an interested party. In considering any request for such information the Bureau shall judge the reasonableness thereof, and may in its discretion permit inspection of such record or part thereof, which in its opinion, will not result in damage or harm to the employee or beneficiary. Where the Bureau determines the release of information to the employee or to his beneficiary is not in the best interest of the employee or his beneficiary, the Bureau may release the information to the employee's or beneficiary's representative or personal physician upon receipt of written authorization from the employee or his beneficiary. If the individual concerned is mentally incompetent, insane or deceased, the next of kin or legal representative must authorize in writing the release of records to the representative.

(c) Release to other government departments and agencies. Information shall be released, upon request, to other departments and agencies which have proper need for the information.

(1) Should the Bureau have doubts as to whether the requesting department has a proper need for the information, the latter will be requested to specify the purpose for which the information will be used. In appropriate cases, the requesting department will be advised that the information will be withheld until the department obtains the written request of the employee or beneficiary concerned.

(2) In honoring requests, the Bureau shall disclose only that information which is germane to the request.

(d) Release to medical research or scientific organizations. Information shall be released, upon the request of medical research, or scientific organizations or other qualified researchers when the Bureau finds that the release of the requested information will not constitute a clearly unwarranted invasion of personal privacy. Where feasible, the Bureau shall delete identifying detail to prevent a clearly unwarranted invasion of personal privacy. The requesting organization or individual shall be advised that the information must be held in confidence and that any published reports resulting from such study shall not identify in any way the individuals whose records were examined.

(e) Release to Federal or State courts or other administrative bodies-(1) Procedure. Any officer or employee of the

United States who is served with a demand for records or information relating to Federal Employees' Compensation Act matters, the disclosure of which has not been authorized, regardless of whether it may or may not be authorized by this section or Part 70 of Title 29, Code of Federal Regulations, shall promptly, and without awaiting appearance before the court or other authority, communicate through established channels the contents of the demand to the Under Secretary of Labor. Such officer or employee shall await instructions concerning the response to the demand. If it is determined that the demand should be opposed, the U.S. attorney, his assistant or other appropriate legal representative shall be requested respectfully to inform the court or other authority that the Secretary of Labor has instructed the officer or employee to refuse to disclose the records or information sought. If instructions have not been received at the time when the officer or employee is required to appear before the court or other authority in response to the demand, the U.S. attorney, his assistant, or other appropriate legal representative shall be requested to appear with the officer or employee upon whom the demand has been served and request additional time in which to receive such instructions.

(2) Action in event of adverse ruling. If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with subparagraph (1) of this paragraph pending receipt of instructions from the Secretary of Labor, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the Secretary of Labor not to produce the material or disclose the information sought, the employee upon whom the demand has been made shall respectfully decline to comply with the demand (United States ex rel Touhy v. Ragen, 340 U.S. 462). This paragraph shall not apply to final decisions requiring production of records pursuant to 5 U.S.C. 552(a) (3), as the foregoing limitations are not intended to preclude compliance with lawful court orders calling for the production of records in connection with civil litigation or criminal proceedings, nor to preclude release of information from records when required by law.

[35 F.R. 1286, Jan. 31, 1970]

§ 1.23

Waiver not authorized.

No official superior is authorized to require an employee to enter into any agreement, either before or after an injury, to waive his right to claim compensation.

[Regulations under the United States Employees' Compensation Act, June 1, 1938. Redesignated at 14 F.R. 7375, Dec. 9, 1949] § 1.24 Representation of claimants and approval of claims for legal and other services.

(a) A claimant may be represented before the Bureau in any proceeding under the act by any duly authorized person. (A former member of the Employees' Compensation Appeals Board or a former Director of the Bureau shall not be considered a duly authorized person within the meaning of this section for a period of two years following termination of his services as a Board member or as Directors. The Bureau shall require satisfactory proof of the representative's authorization.

(b) No claim for legal services or for other services rendered in respect of a case, claim, or award for compensation, to or on account of any person shall be valid unless approved by the Bureau. Any person who receives any fee, other consideration, or gratuity on account of services so rendered, unless such fee, consideration or gratuity is approved by the Bureau, or who solicits employment for himself or another in respect of any case, claim, or award for compensation under (or to be brought under) this act shall be guilty of a misdemeanor and upon conviction thereof, for each offense, be punished by a fine of not more than $1,000 or by imprisonment not to exceed one year, or by both such fine and imprisonment. The Bureau cannot pay any claim so approved by it nor can it assist in the collection of any sum so approved.

(c) No fee for services shall be approved except upon an application to the Bureau supported by an itemized statement of the necessary work done on behalf of a claimant. Should such statement be deemed insufficient by the Bureau, further details may be required and the Bureau may require the person for whom such services were rendered to certify to the correctness thereof. Except where it has been established that representation was to be rendered gratuitously, the fee approved by the Bureau shall be reasonably commensurate with

the actual necessary work performed by such representative. The Bureau will consider for approval only the necessary services performed by applicant on behalf of the claimant, taking into account the capacity in which the representative has served and the circumstances of the claimant.

(d) The Bureau will not recognize any contract for the payment of an agreed sum, or any contingent contract, with respect to legal or other services rendered in respect of a claim or award for compensation.

[14 F.R. 7376, Dec. 9, 1949, as amended at 24 F.R. 1157, Feb. 14, 1959]

§ 1.25 Retroactive effective dates and procedures under Federal Employees' Compensation Act Amendments of 1949.

(a) The amendments classifying the loss or loss of use of both hands, or both arms, or both feet or both legs or both eyes, or the sight thereof, as prima facie constituting permanent total disability, is applicable to injuries sustained before October 14, 1949, but only with respect to any period of disability beginning on or after the first of November 1949.

(b) The amendments apply retroactively for injuries which occurred on or after January 1, 1940, involving the total loss or loss of use of an arm, leg, hand, foot or eye or total and permanent loss of hearing of both ears or serious disfigurement of the face, head or neck, on or after January 1, 1940.

(c) If an employee has sustained the permanent partial loss or loss of use of an arm, leg, foot, hand, eye or hearing or the total or partial loss or loss of use of any other member of the body on or after October 14, 1948, he is required to make an election as provided in 5 U.S.C. 8116(b)

(d) Whenever a disabled person is entitled to augmented compensation because he has a dependent as set forth in 5 U.S.C. 8110 such person may receive augmented benefits irrespective of the date of his injury. However, such payments shall not commence prior to November 1, 1949; see § 1.5.

(e) The amendments with respect to increasing the rate of compensation are applicable to cases of injury or death which occurred before enactment of these amendments but only with respect to any period beginning the first of November 1949.

(f) Whenever a person is entitled to compensation by virtue of the amendment broadening the scope of the term "employee", such entitlement shall apply to injuries or deaths which occurred on or after December 7, 1941: Provided, however, That no payments for medical expenses or compensation shall be payable for any period prior to November 1, 1949, and shall be limited to cases involving permanent partial or permanent total disability or death; see §§ 1.4, 1.5 and 1.12. [14 F.R. 7376, Dec. 9, 1949, as amended at 35 F.R. 1286, Jan. 31, 1970]

2.9

Furnishing of orthopedic and prosthetic appliances, and dental work. 2.10 Recording and submission of medical reports.

2.11 Submission of bills for medical services, appliances and supplies. 2.12 Reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses.

AUTHORITY: The provisions of this Part 2 issued under 5 U.S.C. 8145, 8149; 1946 Reorganization Plan No. 2, sec. 3, 3 CFR, 19431948 Comp., p. 1064; 60 Stat. 1095; 1950 Reorganization Plan No. 19, sec. 1, 3 CFR, 1949-1953 Comp., p. 1010; 64 Stat. 1271.

SOURCE: The provisions of this Part 2 appear at 35 F.R. 1287, Jan. 31, 1970, unless otherwise noted.

§ 2.1 Medical treatment, hospital services, transportation, etc.

(a) All medical services, appliances, drugs, and supplies which in the opinion of the Bureau of Employees' Compensation (hereinafter referred to as the Bureau) are necessary for treatment of an injury as provided by 5 U.S.C. 8103 shall be furnished to employees of the United States and to others entitled by law to medical and other benefits by or upon the order of U.S. medical officers and hospitals, when available and practicable, for injuries sustained while in the performance of duty, including diseases proximately caused by the conditions of employment, whether resulting

in loss of time or not, as well as the necessary means of transportation incident to the securing of such services, appliances, drugs, and supplies. An injured employee will be furnished transportation or be reimbursed for transportation expense, and shall be reimbursed for expenses incident to the securing of services, appliances and supplies necessary in the treatment of an injury related condition, when authorized by the Bureau or by his official superior. If there should be no U.S. medical officer or hospital available, medical services shall be furnished by private physicians designated by the Bureau.

(b) The Bureau's Pamphlet BEC-576, Medical Facilities, lists the U.S. medical officers and hospitals and designated physicians normally available for the care of BEC beneficiaries. Also, the medical facilities of the Army, Navy, Air Force, and Veterans Administration may be used when previous arrangements have been made on a case-by-case basis with the director of the hospital or clinic.

(c) Federal health service units or other occupational health service facilities established under the provisions of the Act of August 8, 1946, as amended (5 U.S.C. 7901), are not U.S. medical officers and hospitals as used in this part. Under criteria established by the Bureau of the Budget (now Office of Management and Budget) in Circular No. A-72 of June 18, 1965, these health service units or occupational health service facilities can only provide emergency diagnosis and first (initial) treatment of injury or illness that become necessary during working hours and that are within the competence of the professional staff and facilities of the health service unit or facility [see paragraph 4.a of OMB Circular]. Any other treatment and medical care by these units or facilities in instances of injury or illness sustained in the performance of duty must be specifically authorized by a physician providing medical care under the specific authorization of the Bureau of Employees' Compensation [see paragraph 4.d of OMB Circular].

(d) In localities where there are no U.S. medical officers and hospitals available, or their use is not practicable, the injured employee shall be referred to one of the designated physicians in the locality as listed in Pamphlet BEC-576 (when authorizing the services of a designated physician the official superior