Federal Register: May 25, 2001 (Volume 66, Number 102)

DOCID: FR Doc 01-13113

DEPARTMENT OF LABOR

Workers’ Compensation Programs Office

CFR Citation: 20 CFR Parts 1 and 30

RIN ID: RIN 1215-AB32

NOTICE: Part II

DOCUMENT ACTION: Interim final rule; request for comments.

SUBJECT CATEGORY:

Performance of Functions Under This Chapter; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act

DATES: Effective Date: This interim final rule is effective July 24, 2001.
Compliance Dates: Affected parties do not have to comply with the information collection requirements in Secs. 30.100, 30.101, 30.102, 30.111, 30.112, 30.206, 30.207, 30.213, 30.214, 30.216, 30.217, 30.401, 30.415, 30.416, 30.417, 30.420, 30.421, 30.505, 30.617, 30.700, 30.701 and 30.702 until the Department publishes in the Federal Register the control numbers assigned by the Office of Management and Budget (OMB) to these information collection requirements. Publication of the control numbers notifies the public that OMB has approved these information collection requirements under the Paperwork Reduction Act of 1995.
Comments: The Department invites written comments on the interim final rule from interested parties. Comments on the interim final rule must be received by August 23, 2001. Written comments on collections of information subject to the Paperwork Reduction Act must be received by July 24, 2001.

DOCUMENT SUMMARY:

This document contains the interim final regulations governing the administration of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or Act), that provides lumpsum payments and medical benefits to covered employees and, where applicable, survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. The Act also provides for the payment of smaller lumpsum payments and medical benefits to individuals already found eligible for benefits under section 5 of the Radiation Exposure Compensation Act and, where applicable, their survivors. The Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) administers the adjudication of claims and payment of benefits under the EEOICPA, with the Department of Health and Human Services (HHS) calculating the amounts of radiation received by employees alleged to have sustained cancer as a result of such exposure and establishing guidelines to be followed in determining whether such cancers are at least as likely as not related to employment. The Department of Energy (DOE) and the Department of Justice (DOJ) are responsible for notifying potential claimants and submitting evidence necessary for DOL's adjudication of claims under the EEOICPA.

SUMMARY:

Department of Labor, Workers Compensation Programs Office,

SUPPLEMENTAL INFORMATION

I. What Is the Energy Employees Occupational Illness Compensation Program?

The Energy Employees Occupational Illness Compensation Program Act (EEOICPA), Public Law 106398, 114 Stat. 1654, 1654A1231 (October 30, 2000), was enacted as Title XXXVI of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001. The EEOICPA established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to covered employees suffering from designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for DOE and certain of its vendors, contractors and subcontractors. This legislation also provided for payment of compensation to certain survivors of these covered employees, as well as for payment of a smaller lump sum ($50,000) to individuals (who would also receive medical benefits), or their survivor(s), who were determined to be eligible for compensation under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note).

The EEOICPA further instructed the President to designate one or more Federal agencies or officials to carry out the compensation program. Pursuant to this statutory provision, the President issued Executive Order 13179 (``Providing Compensation to America's Nuclear Weapons Workers'') of December 7, 2000 (65 FR 77487) which assigned primary responsibility for administering the compensation program to DOL. This executive order also directed HHS to, among other things, develop guidelines to assess the likelihood that an employee with cancer developed that cancer in the performance of duty at a DOE facility or atomic weapons facility, to establish methods for calculating radiation dose estimates for individuals applying for benefits under this program for whom there are inadequate records of radiation exposure, and perform such calculations. The President's order instructed DOE to provide DOL and HHS all relevant information to which it may have access, and to assist in the development of claims under the EEOICPA and state workers' compensation programs. Finally, the executive order directed DOJ to identify and notify RECA beneficiaries of their possible entitlement to benefits under the EEOICPA and to assist DOL in the adjudication of those claims. II. Issuance of Interim Final Rule

Section 3611(a) of the EEOICPA both establishes the Energy Employees Occupational Illness Compensation Program and provides that ``[t]he President shall carry out the compensation program through one or more Federal agencies or officials, as designated by the President.'' Pursuant to this statutory provision, the President issued Executive Order 13179 section 2(a)(ii) of which directed the Secretary of Labor to ``promulgate regulations for the administration of the Program, except for functions assigned to other agencies pursuant to the Act or this order;'' no later than May 31, 2001. The Act further stipulates that its provisions for both lumpsum payments and medical benefits shall take effect ``on July 31, 2001, unless Congress otherwise provides in an Act enacted before that date.'' The Department believes that Congress's explicit mandate in the Act that the provisions for both lumpsum payments and medical benefits take effect on July 31, 2001 contemplates displacement of Administrative [[Page 28949]]
Procedure Act (APA) notice and comment procedures and requires the publication of an Interim Final Rule as an initial matter.

Therefore, the Department believes that the ``good cause'' exception to APA notice and comment rulemaking applies to this rule. Under that exception, no preadoption procedures are required ``when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(b)(B). The EEOICPA was enacted to provide efficient, uniform and adequate compensation for radiation, beryllium, and silica related health conditions to the civilian men and women who, over the past 50 years, performed duties uniquely associated with the nuclear weapons production and testing programs of DOE and its predecessor agencies. The enactment of EEOICPA was, in part, the result of the failure of existing state workers' compensation programs to provide uniform and adequate compensation for these types of occupational illnesses. DOL cannot begin to accept and process claims under the EEOICPA until these regulations are promulgated. The steps necessary for the usual notice and comment under the APA could not be completed in time for the program to become effective by July 31, 2001: approval of the notice of proposed rulemaking by the Secretary and OMB; publication in the Federal Register; receipt of, consideration of, and response to the comments submitted by interested parties; modification of the proposed rules, if appropriate; final approval by the Secretary; clearance by OMB; and publication in the Federal Register. Moreover, completion of these steps will further delay the implementation of the program. Accordingly, the Department believes that under 5 U.S.C. 553(b)(B), good cause exists for waiver of Notice of Proposed Rulemaking since issuance of proposed rules would be impracticable and contrary to the public interest.

While notice of proposed rulemaking is being waived, the Department is interested in comments and advice regarding changes that should be made to these interim rules. We will fully consider any comments on these rules that we receive on or before August 23, 2001, and will publish the Final Rule with any necessary changes.
III. What Are the Paperwork Requirements (Subject to the Paperwork Reduction Act) Imposed Under EEOICPA and the Department's

Regulations, and How Are Comments Submitted?

The new collections of information contained in this rulemaking have been submitted for review to OMB in accordance with the Paperwork Reduction Act of 1995. No person is required to respond to a collection of information request unless the collection of information displays a valid OMB control number. The new information collection requirements are in Secs. 30.100, 30.101, 30.102, 30.111, 30.112, 30.206, 30.207, 30.213, 30.214, 30.216, 30.217, 30.415, 30.416, 30.417, 30.505, 30.617 and 30.702, and they relate to information required to be submitted by claimants, medical providers, and witnesses as part of the claims adjudication process, as well as to information required to be submitted by claimants in connection with the processing of bills. To implement all but one of these new collections, the Department is proposing to create eight new forms (see sections A through E and sections G through I below). One new collection will be implemented without any specific form (see section F below).

In addition, this rulemaking contains currently approved collections of information in Secs. 30.401, 30.420, 30.421, 30.700, 30.701 and 30.702, which relate to information required to be submitted by claimants and medical providers in connection with the processing of bills (see OMB12150055, OMB12150176, and OMB12150194). These collections (Forms OWCP1500, UB92 and 791A) will be revised to include EEOICPA respondents.

A. Employee's Claim: Form EE1 (Secs. 30.100 and 30.102)

Summary: The claims adjudication process for employees begins with a requirement that they file a written claim for benefits with the Department on or after July 31, 2001. Employees do not need to use the ``Claim For Benefits Under Energy Employees Occupational Illness Compensation Program Act'' (Form EE1) to initiate this process since any written communication that requests benefits under the EEOICPA will be considered a claim. They will, however, be required to submit a Form EE1 to insure that OWCP has the basic factual information necessary to begin adjudicating the claim. In Form EE1, the employee is requested to provide information with respect to his or her identity, contact information, the type of illness being claimed (with date of diagnosis), the location or type of employment, whether he or she is a member of the Special Exposure Cohort, and whether he or she received an award letter under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or filed a lawsuit regarding the claimed illness. OWCP may also require employees to provide factual information in support of any responses made on Form EE1. All employees will be required to swear or affirm that the information provided on the Form EE1 is true.

Need: Pursuant to the EEOICPA, a claim for benefits is necessary to both initiate the claims adjudication process and to establish a commencement date for any possible entitlement to medical benefits.

Respondents and proposed frequency of response: It is estimated that 43,140 employees annually will file one Form EE1.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE1 is estimated to take an average of 15 minutes per employee for a total annual burden of 10,785 hours. B. Survivor's Claim: Form EE2 (Secs. 30.101 and 30.102)

Summary: The claims adjudication process for survivors begins with a requirement that they file a written claim for survivor benefits with the Department on or after July 31, 2001. Survivors do not need to use the ``Claim For Survivors Benefits Under Energy Employees Occupational Illness Compensation Program Act'' (Form EE2) to initiate this process since any written communication that requests benefits under the EEOICPA will be considered a claim. They will, however, be required to submit Form EE2 to insure that OWCP has the basic factual information necessary to begin adjudicating the claim. In Form EE2, the survivor is asked to provide information with respect to both his or her identity and the identity of the deceased employee, contact information, the type of illness being claimed (with date of diagnosis), the location or type of employment, whether the deceased employee was a member of the Special Exposure Cohort, and whether he or she (or the deceased employee) received an award letter under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or filed a lawsuit regarding the claimed illness. OWCP may also require survivors to provide factual information
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in support of any responses made on Form EE2. All survivors will be required to swear or affirm that the information provided on the Form EE2 is true.

Need: Pursuant to the EEOICPA, a claim for survivor's benefits is necessary to initiate the claims adjudication process.

Respondents and proposed frequency of response: It is estimated that 28,760 survivors annually will file one Form EE2.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE2 is estimated to take an average of 15 minutes per survivor for a total annual burden of 7,190 hours. C. Employment History: Form EE3 (Secs. 30.102, 30.111, 30.112, 30.206, 30.213 and 30.216)

Summary: Employees and/or survivors claiming benefits under the EEOICPA must establish, among other things, an employment history that includes at least one period of covered employment. Form EE3 has been devised to elicit the basic factual information necessary to enable OWCP to make this particular finding of fact. In Form EE3, the respondent (the employee or survivor) is asked to provide information with respect to his or her identity and contact information, the employee's identity, and the employee's complete employment history that includes dates of employment, the name and location of employers, position titles and descriptions of work performed, and information regarding any dosimetry badges worn. All respondents will be required to swear or affirm that the information provided on the Form EE3 is true. Further, the employment history provided on Form EE3 will be provided to DOE for verification.

Need: Documentation of a history of covered employment is one of the elements that must be met to establish entitlement to benefits under the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 68,584 employees and/or survivors annually will file one Form EE 3.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE3 is estimated to take an average of 1 hour per response for a total annual burden of 68,584 hours. D. Employment History Affidavit: Form EE4 (Secs. 30.102, 30.111, 30.112, 30.206, 30.213 and 30.216)

Summary: As noted in section C above, employees and/or survivors claiming benefits under the EEOICPA must establish, among other things, an employment history that includes at least one period of covered employment. In situations where the use of Form EE3 may not be practicable (e.g., due to a lack of available information), Form EE4 may be used as an alternate method to provide OWCP with a basic employment history by affidavit. In Form EE4, the respondent (someone other than the employee or survivor) is asked to provide information as to his or her identity and relationship to the employee, the employee's identity, and the employee's employment history that includes dates of employment, name and location of employers, descriptions of work performed, and an explanation of the basis for the employment history provided. All respondents will be required to swear or affirm that the factual information provided on the Form EE4 is true. Further, the employment history provided on Form EE4 will be provided to DOE for verification.

Need: Documentation of a history of covered employment is one of the elements that must be met to establish entitlement to benefits under the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 17,146 respondents annually will file one Form EE4.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE4 is estimated to take an average of 30 minutes per response for a total annual burden of 8,573 hours. E. Medical Requirements: Form EE7 (Secs. 30.102, 30.207, 30.214, 30.217, 30.415, 30.416 and 30.417)

Summary: Employees and/or survivors claiming benefits under the EEOICPA (except for those who have received an award under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note)) must also establish, among other things, that the employee sustained a compensable occupational illness. Form EE7 has been devised to elicit the type of medical evidence (prepared by medical providers) needed to enable OWCP to make this particular finding of fact. Claimants may also be required to submit additional medical evidence (prepared by medical providers) as necessary. Form EE7 describes, in checklist format, both the general and specific requirements for medical evidence submitted in support of a claim for each of the occupational illnesses covered by the EEOICPA.

Need: Documentation of a covered occupational illness is one of the elements that must be met to establish entitlement to benefits under the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 68,584 respondents annually will file one response to Form EE7.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each collection of this information is estimated to take an average of 15 minutes per response for a total annual burden of 17,146 hours.

F. Supplemental Medical Evidence (Sec. 30.214)

Summary: Employees and/or survivors claiming that an injury, illness or disability was sustained as a consequence of a covered cancer must submit a narrative medical report from a medical provider which shows a causal relationship between the claimed injury, illness or disability and the covered cancer. A standardized form or format will not be used for the submission of this information, which will be collected on an asneeded basis.

Need: Documentation of a consequential injury is one of the elements that must be met to establish entitlement to benefits for such a condition under the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 4,500 respondents annually will submit this collection of information once.

Summary: Once the claims adjudication process has been completed and a final decision finding coverage under the EEOICPA has been made, the claimant must still provide information to determine if he or she is entitled to receive a lumpsum payment, and if so, the amount of such lumpsum payment. In Form EE/EN15, the claimant is requested to provide
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information about any tort suits they may have filed against a beryllium vendor or atomic weapons employer, and whether they have been convicted on fraud charges in connection with the EEOICPA or another federal or state workers' compensation law. Form EE/EN15 also requests information on third party settlements, other eligible survivors and corrections. All respondents will be required to certify that the information provided on Form EE/EN15 is true.

Need: Documentation of entitlement to a lumpsum payment and the level of any such payment is required under the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 10,926 employees and/or survivors annually will file one Form EE/ EN15.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE/EN15 is estimated to take an average of 40 minutes per response for a total annual burden of 7,284 hours. H. Acceptance of Payment: Form EE/EN20 (Secs. 30.505 and 30.617)

Summary: After Form EE/EN15 is returned (and a determination that the claimant is entitled to a lumpsum payment is made and the amount of such entitlement has been calculated), the claimant will be informed of the award payable under the EEOICPA and that his or her acceptance of such payment will be in full satisfaction of all claims arising out of an occupational illness covered by the EEOICPA. The ``Acceptance of Payment'' (Form EE/EN20) has been devised for this purpose, and requests that the claimant indicate whether he or she accepts or rejects the offered payment within 60 days.

Need: Documentation of a claimant's acceptance of a lumpsum payment is necessary to establish the full satisfaction of all claims arising out of an occupational illness covered by the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 10,926 employees and/or survivors annually will file one Form EE/ EN20.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE/EN20 is estimated to take an average of 5 minutes per response for a total annual burden of 911 hours. I. Medical Reimbursement: Form EE915 (Sec. 30.702)

Summary: Once a claim has been accepted, the Department will pay medical benefits retroactive to the date the claim was filed. The ``Claim For Medical Reimbursement Under Energy Employees Occupational Illness Compensation Program Act'' (Form EE915) has been devised to enable claimants to seek reimbursement for outofpocket expenses pertaining to the medical treatment, prescription medication, and medical supplies obtained due to an accepted occupational illness or consequential injury.

Need: Documentation of a claimant's outofpocket expenses is necessary to establish the amount that is payable as medical benefits for an occupational illness or consequential injury covered by the EEOICPA.

Respondents and proposed frequency of response: It is estimated that 5,095 respondents annually will file four Forms EE915.

Estimated total annual burden: The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE915 is estimated to take an average of 15 minutes per response for a total annual burden of 5,096 hours.

Total public burden: The above information collections have a total public burden hour estimate of 126,693. Using the current National minimum wage of $5.15 per hour, the total annual public cost estimate for all new information collections is estimated to be $652,469.00. There are no recordkeeping or collection costs associated with the information collected on the EE1, EE2, EE3, EE4, EE/EN15, EE/EN20 or EE915. Because the medical information requested by the other two information collections is kept as a usual and customary business practice, there is no additional recordkeeping or collection cost associated with those collections. The only operation and maintenance cost will be for postage and mailing. An estimated 50% of the EE1 and EE2 forms will involve postage and mailing costs; the remainder will be received directly by either DOL or DOE personnel. The EE3 form always accompanies the EE1 or EE2, therefore no additional postage or mailing is required. An estimated annual total of 167,612 mailed responses at $0.34 (postage) + $0.03 (envelope) per response would be $62,016.44.

Request for comments: The public is invited to provide comments on the abovenoted new information collection requirements so that the Department may:
(1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimates of the burdens of the collections of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Send comments regarding this burden estimate, or any other aspect of this new collection of information, including suggestions for reducing this burden, to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Employment Standards Administration, Washington, DC 20503 no later than July 24, 2001.

IV. What Matters Do the Regulations Address?

Congress, in enacting the EEOICPA, created a new Energy Employees Occupational Illness Compensation Program to ensure an efficient, uniform, and adequate compensation system for certain employees of DOE, its vendors, contractors, and subcontractors, who contracted beryllium, silica, and radiation related health conditions as a result of their employment in the development of nuclear weapons. These regulations describe the process that DOL will use so that these employees, and, when applicable, their survivors, will receive the benefits provided by the EEOICPA in the efficient and uniform manner intended by Congress. The following discussion describes the regulations that will appear as 20 CFR parts 1 and 30.

20 CFR Part 1

This part is substantially the same as current part 1 (Secs. 1.1 through 1.6), with the exception of the updated list of assigned functions contained in Sec. 1.2, and is reprinted in full for the ease of the reader. This updated list of functions reflects that the Assistant Secretary for Employment Standards
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has assigned the Department's responsibilities under the EEOICPA and E.O. 13179 to the Deputy Assistant Secretary for Workers' Compensation Programs.
20 CFR Part 30

Subpart AGeneral Provisions

This subpart briefly describes the types of benefits available under the EEOICPA and provides a summary of how the Department's regulations under the Act are organized. It also describes the effect of other general criminal and civil provisions on the EEOICPA claims process.

Introduction

Sections 30.1 and 30.2 briefly describe how the tasks involved in administering the EEOICPA have been assigned, both within the Department and among the Secretaries of Labor, Health and Human Services, and Energy, and the Attorney General, while Sec. 30.3 summarizes how the regulations in this part are organized by subject area.

Definitions

This section of the regulation defines the principal terms used in this part. It includes terms specifically defined in the EEOICPA that, for the convenience of the user of this part, are repeated in this section. The Department seeks comments on all of the definitions used in the regulation, including, in particular, those addressed in the following paragraphs.

The Sec. 30.5(g) definition of benefit or compensation includes the money DOL pays to or on behalf of a claimant as well as any other amounts paid for such things as medical treatment, monitoring, examinations, services and supplies and the transportation and other expenses incurred in securing such medical treatment. This section also distinguishes the meaning of the term ``compensation'' as it is used in EEOICPA section 3628(a)(1)the $150,000 lump sum paymentand as it is used in EEOICPA section 3630(a)the $50,000 lump sum payment to covered employees or their survivor(s) under section 5 of the RECA.

EEOICPA section 3630(a) describes a covered uranium employee as ``an individual who receives, or has received, $100,000 under section 5 of the RECA for a claim made under that Act.'' Because either an eligible employee or that eligible employee's survivor(s) may receive $100,000 under section 5 of the RECA, interpreting the word ``individual'' in the section 3630(a) definition of ``covered uranium employee'' as either an employee or that employee's survivor(s) results in having to award $50,000 to the survivor of a deceased survivor. This would create a result that does not appear to have been intended by Congress and is inconsistent with the definitions of covered beryllium employees, covered employees with cancer, and covered employees with chronic silicosis under the EEOICPA. These definitions of covered employee include only persons who are or were employees, they do not include survivors as covered employees. Such an overly literal definition of ``covered uranium employee'' in the EEOICPA is inconsistent with the purpose of the EEOICPA ``to provide for timely, uniform, and adequate compensation of covered employees and, where applicable, survivors of such employees suffering from illnesses incurred by such employees in the performance of duty * * *.'' (see EEOICPA section 3611(b)). Furthermore, the conference report on the EEOICPA also notes that section 3630 establishes ``an additional entitlement for certain uranium miners, millers, and transporters, or the survivor of any such employee if the employee is deceased, who receives, or has received, payment of a claim under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note).'' H.R. Conf. Rep. No. 96945, at 982 (2000). To avoid compensation of survivors of survivors, the Department has defined a ``covered uranium employee'' as an employee who has been determined to be entitled to compensation under section 5 of the Radiation Exposure Compensation Act, as amended, (42 U.S.C. 2210 note) for a claim made under that Act.

The EEOICPA does not define disability but uses that term in section 3628(a) as a qualification for entitlement to the $150,000 lump sum payment. While other federally administered workers' compensation programs define ``disability'' to require a claimant to establish a loss of wage earning capacity or permanent impairment, it is clear from Congress' description of this compensation program in EEOICPA section 3611(b), that an employee need only establish, to OWCP's satisfaction, that he or she has or has had one of the covered occupational illnesses, without establishing a loss of wage earning capacity or permanent impairment as a result of that illness. The definition of ``disability'' in Sec. 30.5(w) reflects this Congressional intent.

The EEOICPA defines survivor as any individual or individuals entitled to compensation under the survivor provisions of the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8133. Therefore, the definition of survivor in Sec. 30.5(dd) identifies those individuals who would qualify as survivors of a deceased covered employee under section 8133 of the FECA. A significant feature of the FECA survivor provision is the limitation that the list of eligible individuals does not include a child over the age of 18 unless that child is a ``student'' as defined in section 8101(17) of the FECA, or is incapable of selfsupport. Similarly, nondependent parents, siblings, grandparents and grandchildren do not qualify as survivors. Information in Program Records

Sections 30.10 and 30.11 describe the Privacy Act system of records entitled DOL/ESA49 that covers all OWCP records relating to claims filed under the EEOICPA. This system of records is both maintained by and under the control of OWCP. The records contained in DOL/ESA49 are considered confidential and may not be disclosed except as provided by the Privacy Act of 1974. Section 30.12 describes the process that must be used to either obtain copies of or amend records contained in DOL/ ESA49.

Rights and Penalties

Section 30.16 makes reference to some of the criminal and civil proceedings that can result from filing a fraudulent or false claim or statement with OWCP in connection with a claim under the EEOICPA, and notes that the Department of Justice has the sole authority to initiate criminal proceedings. Section 30.17 sets out the Act's statutory requirement for permanent forfeiture of all benefits whenever a claimant defrauds the federal government in connection with a claim under the EEOICPA or any other federal or state workers' compensation law.
Subpart BFiling Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims

This subpart describes the early steps in OWCP's claims adjudication process and includes a general description of the evidence an employee or survivor must submit to meet his or her burden of proof. It also explains the special procedures used in the early adjudication of claims for cancer that do not involve members of the Special Exposure Cohort, which includes HHS's responsibility for calculating a reconstructed dose.
Claims for Occupational IllnessEmployee or Survivor's Actions

Section 30.100 describes how an employee can file (or withdraw) a [[Page 28953]]
written claim for benefits under the Act, and explains the three alternate methods that can be used to ``file'' such a claim for the purpose of establishing a commencement date for any possible entitlement to medical benefits should the claim ultimately be approved by OWCP. Since an employee's possible entitlement to any medical benefits under the Act commences on the date the written claim is filed, OWCP will choose the earliest filing date from among the three alternate methodsthe date the claim is mailed to OWCP (as determined by postmark), the date the claim is actually received by OWCP, or the date the claim is actually received by DOE. Section 30.101 addresses these same topics in the context of claims of survivors.

Although use of the claim forms that appear in the list of forms contained in Sec. 30.102 is not required to file a claim (a simple letter that contains words of claim is legally sufficient), claims should be filed using OWCP's official claim forms to ensure that all information necessary for the early stages of the claims adjudication process has been submitted. Form EE1 (for an employee claiming for his or her own occupational illness) and Form EE2 (for a survivor of such a deceased employee) are provided for these purposes.

Claims for Occupational IllnessActions of DOE

In light of the broad range of employment situations that could lead to an exposure that might result in an occupational illness compensable under the Act, the Department has decided to seek the type of basic factual information that an employer would otherwise provide to OWCP from DOE. Therefore, Sec. 30.105 indicates that DOE will have the responsibility to either concur or disagree (or indicate that it lacks sufficient information to either concur or disagree) with the employment history submitted by the employee in support of his or her claim. DOE will also be responsible for helping employees establish, through alternate methods, the necessary factual basis to support their employment histories when the usual documentary evidence is not available. Section 30.106 addresses these same DOE responsibilities in the context of claims of survivors.

Evidence and Burden of Proof

Section 30.110 lists the four classes of individuals who are entitled to compensation under sections 3623, 3627 and 3630 of the EEOICPA, and Sec. 30.111 describes the burden of proof on these individuals to establish their entitlement to benefits under the Act. While every claimant must establish eligibility by a preponderance of the evidence, section 30.111(c) permits the use of written affidavits or declarations as evidence of employment history or survivor relationship where the claimant attests that actual records on these matters do not exist. DOL further assists claimants in the development of their claims by notifying the claimant of any deficiency and providing an opportunity for correction of the deficiency (section 30.111(b)).

Special Procedures for Certain Cancer Claims

E.O. 13179 assigns the ``primary responsibility for administering'' the compensation program to the Secretary of Labor. However, a portion of the adjudication process of claims for cancer that do not involve employees who are members of the Special Exposure Cohort (or a survivor of such an employee) is assigned to HHS. Accordingly, Sec. 30.115 indicates that if OWCP determines that such an employee (or a survivor of such an employee) has established that he or she contracted cancer after beginning covered employment, OWCP will refer the claim to HHS for dose reconstruction. This package will include, among other things, any employment history compiled by OWCP. It will not, however, constitute a recommended or final decision by OWCP on the claim.

After completing such further development of the employment history as it may deem necessary, HHS will reconstruct the radiation dose and notify the claimant directly of its findings. At the same time, HHS will also inform OWCP of its findings regarding the radiation dose, at which point OWCP will resume adjudication of the claim (based on the reconstructed dose calculated by HHS) and determine whether the claimant has met the eligibility criteria set forth in subpart C. Subpart CEligibility Criteria
Eligibility Criteria for Claims Relating to Covered Beryllium Illness

Section 30.205 describes the criteria, set forth in sections 3621(7) and 3621(8) of the EEOICPA, that a claimant must satisfy to qualify for compensation for a covered beryllium illnessthat he or she was (or is a survivor of) a ``covered beryllium employee'' who has a covered beryllium illness. Consistent with other federally administered workers' compensation laws, this section also provides compensation (medical benefits only) for any injury, illness, impairment, or disability sustained as a consequence of a covered beryllium illness.

To establish the status as a ``covered beryllium employee,'' a claimant may submit any trustworthy contemporaneous record that establishes proof of employment or presence at a covered facility during a period when beryllium dust, particles or vapor was present (Sec. 30.206(a)). Section 30.206(b) describes the type of records that may be considered as evidence of employment or presence at a covered facility. Section 30.207 describes the type of medical evidence required to establish beryllium sensitivity and chronic beryllium disease as set forth in sections 3621(8) and 3621(13) of the EEOICPA, and explains the claimant's burden in establishing a consequential injury or illness.

Eligibility Criteria for Claims Relating to Cancer

Section 30.210 describes the two types of employees with cancer for whom the EEOICPA provides compensation. To be eligible for compensation for cancer, an employee either must be: (1) A member of the Special Exposure Cohort (SEC) who was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted a specified cancer after beginning such employment; or (2) a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted cancer (that has been determined, pursuant to guidelines promulgated by HHS, ``to be at least as likely as not related to such employment''), after beginning such employment. Consistent with other federally administered workers' compensation laws, this section also provides compensation (medical benefits only) for any injury, illness, impairment, or disability sustained as a consequence of a covered cancer.

Section 30.213(a) describes the criteria set out in section 3621(14) of the EEOICPA for establishing eligibility as a member of the SEC. To satisfy the EEOICPA requirement that an eligible employee must have worked at a designated gaseous diffusion plant for a number of workdays aggregating at least 250 workdays before February 1, 1992, Sec. 30.213(b) allows the claimant to aggregate the days of service at more than one gaseous diffusion plant. Section 30.213(c) describes the type of evidence a claimant may submit to establish his employment with a covered employer under this section. A written medical report that includes a
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diagnosis and the date of diagnosis is sufficient to establish either a specified cancer, in the case of SEC members, or cancer for other covered employees, under Sec. 30.214(a). Section 30.214(b) describes the medical evidence required to establish an injury or disease that occurs as a consequence of a covered cancer.

Eligibility Criteria for Chronic Silicosis

Section 30.215 sets forth the EEOICPA section 3627 requirements for entitlement to compensation for chronic silicosis. To be eligible for benefits, the employee must establish employment with the DOE or with a DOE contractor and presence for a number of work days aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska, which were used for atomic weapon tests or experiments. Section 30.216(c) allows the claimant to aggregate the days of service at more than one qualifying site. The employee must have been diagnosed with chronic silicosis, supported by medical evidence set forth in Sec. 30.217.

Eligibility of Certain Uranium Employees

Section 30.220 describes how beneficiaries of $100,000 under section 5 of the RECA establish entitlement to an additional $50,000 and medical benefits provided by section 3630 of the EEOICPA. Since RECA claimants may receive payment under RECA in the form of a promise to pay at a future date, the Department has interpreted the requirement in section 3630 of the Act that a claimant ``receives or has received $100,000'' under RECA to include claimants who receive or have received a promise of subsequent payment.

Subpart DAdjudicatory Process

This subpart describes the adjudicatory process OWCP will follow when it issues decisions on claims under the Act. It contains information about filing objections following a recommended decision and requesting a hearing before OWCP's Final Adjudication Branch (FAB), and describes the manner in which the FAB will issue decisions on claims after a hearing, a review of the written record, or on a summary basis. This subpart also indicates when decisions of the FAB will become final, and describes the process whereby OWCP may exercise its discretion to modify a final decision, either on its own motion or upon the motion of a claimant.

Recommended Decisions on Claims

Sections 30.305 through 30.307 contain a basic description of a ``recommended'' decision on a claim, which will contain both findings of fact and conclusions of law, as appropriate. These sections also describe the general process OWCP will use when it issues a recommended decision, and indicate to whom OWCP will send the recommended decision. It is important to recognize that a recommended decision does not constitute a final decision by OWCP on a claim; instead, it only represents an initial recommendation made by an OWCP claims examiner. Therefore, since a recommended decision will not be OWCP's final decision on a claim under the EEOICPA, a claimant may not seek review of such decision in federal court.

Hearings and Final Decisions on Claims

Section 30.310 indicates that when the district office issues a recommended decision on a claim, it will also forward the record of such claim to the FAB, whether the recommended decision was favorable or unfavorable to the claimant. Within 60 days of the date the district office issues the recommended decision (unless this period is extended by the FAB), the claimant must object to specific findings of fact and/ or conclusions of law contained in the recommended decision to trigger either a hearing (upon specific request) or a review of the written record by the FAB. In the absence of any specific objections, Sec. 30.311(a) provides that the FAB will summarily affirm the recommended decision without conducting any further review of such decision. The Department believes that bringing the claims adjudication process to an end when a claimant does not raise any specific objections is appropriate, even if the claimant asks for a hearing, since the expenditure of administrative resources needed to conduct further review of a claim under these circumstances will most likely serve no useful purpose given the nonadversarial nature of the claims adjudication process. Section 30.311(b) provides that the FAB will also summarily affirm the recommended decision, in whole or in part, if the claimant waives any objection to all or part of such decision.

If a claimant files specific objections to a recommended decision with the FAB, but does not request a hearing on his or her claim, Sec. 30.312 states that the FAB will consider the objections by means of a review of the written record of the claim. If the claimant only objects to a part of the recommended decision (for example, the claimant objects to OWCP's rejection of the claim with respect to one occupational disease, but does not object to OWCP's acceptance of the claim for a different occupational disease), this section notes that the FAB has the discretionary authority to issue a decision summarily affirming the uncontested part, if such action is appropriate. Section 30.313 describes the process a FAB reviewer will follow when he or she conducts a written review of the record, which provides for the submission of additional evidence or argument from the claimant, or at the request of the FAB reviewer.

If the claimant files objections and requests a hearing within the 60day period referred to above, Sec. 30.314 sets out the general procedural framework that a FAB reviewer will follow through the completion of the informal hearing process. This section describes a FAB reviewer's wide discretion in matters of scheduling and in the conduct of the hearing itself. Consistent with the provision in Sec. 30.312 allowing partial decisions, Sec. 30.314 also provides that if the claimant only objects to a part of the recommended decision, a FAB reviewer has the discretionary authority to issue a decision that summarily affirms the uncontested part. Section 30.315 completes the description of the hearing process by indicating that a claimant may only postpone a scheduled hearing in certain limited circumstances, and if the hearing cannot be rescheduled in such a way as to prevent delay, a review of the written record will be conducted instead. It also indicates that a claimant may request a change to a review of the written record at any time after requesting a hearing, and that once such a change is made, no further opportunity for a hearing will be provided.

The varied processes by which the FAB issues decisions on claims (or parts of claims) are described in Sec. 30.316. Subsection (a) provides for summary affirmance (in whole or in part) of a recommended decision when no specified objections have been raised, subsection (b) provides for the issuance of a decision on a claim at the conclusion of either a hearing or a review of the written record, and subsection (c) provides for the automatic affirmance of any recommended decision that is pending either a hearing or a review of the written record at the FAB for more than one year. Subsection (d) indicates that decisions of the FAB issued pursuant to Sec. 30.316(a), (b) or (c) will become final upon expiration of 30 days from the date they are issued, unless the claimant files a timely request for reconsideration
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under Sec. 30.319, and subsection (e) indicates to whom the FAB will send its decision. Section 30.317 further provides that at any point in time prior to issuing a decision on a claim, the FAB may request that a claimant submit additional evidence or argument and may, in the exercise of its discretion, remand a claim to the district office for further development without issuing a decision under Sec. 30.316.

Finally, Sec. 30.319 sets out the process whereby a claimant may request reconsideration of a decision of the FAB before such decision becomes final, and notes that if the request is granted, the FAB will review the district office's recommended decision again and issue a new decision on the claim without holding a hearing. This section also points out that if the FAB denies the request for reconsideration, the decision at issue will become final on the date the request is denied. In Sec. 30.319(c), the Department describes the point at which a decision on a claim under the EEOICPA becomes final for purposes of seeking judicial review, which occurs when all administrative review opportunities have been exhausted.

Modification

In order to accommodate those rare instances when OWCP may wish to reopen a final decision of the FAB, Sec. 30.320 describes OWCP's discretionary authority to modify such a decision at any time on its own motion. This section also provides that a claimant can move for modification within one year of the date the FAB decision became final, provided that he or she can establish a mistake of fact in the final decision or changed circumstances. If OWCP determines that modification is warranted, this section notes that it may issue a new recommended decision modifying the prior final decision on a claim. It also notes that while any new recommended decision issued on modification will be subject to the adjudicatory process described in subpart D, the scope of review at the FAB will be limited to the merits of the new recommended decision; OWCP's discretionary determination to modify the prior final decision will not be reviewable. Subsection (c) completes the description of the adjudicatory process by noting that the time limitations in Sec. 30.320 will not prevent a claimant from filing another claim for a new occupational disease or consequential injury not already considered by OWCP, and that regardless of the number of claims OWCP accepts, no claimant can receive more than one award of monetary compensation under sections 3628(a)(1) or 3630(a) of the Act. Subpart EMedical and Related Benefits

This subpart contains a description of the medical benefits that are provided to employees under the EEOICPA, the general rules for obtaining medical care, and information regarding an employee's initial choice of physician. It also describes the manner in which OWCP may direct an employee to be examined by another physician of its choosing, and how OWCP resolves conflicts in the medical evidence that may arise as a result of such an examination. Finally, subpart E describes the general requirements for medical reports to be submitted to OWCP, and the process to be used by employees to seek reimbursement for medical expenses they have paid.

Medical Treatment and Related Issues

Section 30.400 reflects the basic entitlement to medical benefits contained in section 3629 of the Act, including the provision that an employee's entitlement to such benefits commences upon the date the claim is filed. This section also indicates that medical treatment that was provided to an employee who dies before the claim is accepted will be paid for if the claim is accepted, as long as such treatment was provided on or after the date the employee filed his or her claim. Section 30.400 indicates that any qualified medical provider may provide appropriate services, appliances and supplies.

Consistent with OWCP's definition of ``physician'' set out in subpart A, which is the same as the definition set forth in section 8101(2) of the FECA, Secs. 30.401 and 30.402 describe the special rules that will apply to medical services provided by chiropractors and clinical psychologists. Generally, chiropractors are limited to providing treatment to correct a spinal subluxation, and a diagnosis of spinal subluxation as demonstrated by xray to exist must appear in the chiropractors report before payment of the bill will be considered. Clinical psychologists cannot serve as physicians for conditions that include a physical component unless they are authorized to do so under the applicable state law.

Section 30.403 indicates that the personal care services of a home health aide, licensed practical nurse or similarly trained individual will be paid for as a medical benefit, so long as such services are medically necessary. In addition, Sec. 30.404 indicates that transportation and other reasonable and necessary expenses needed to obtain authorized medical treatment will be paid for as a medical benefit.

Since section 3629(b)(2) of the Act specifically provides employees with the right to select an initial treating physician, Sec. 30.405 indicates that OWCP will provide them with an opportunity to designate a treating physician when it accepts the claim. The physician so selected can refer the employee to a specialist without first seeking approval from OWCP, but in all other situations the employee must make a written request to OWCP before he or she changes treating physicians. Directed Medical Examinations

On occasion, OWCP may need to have an employee examined by a physician of its own choosing for a second opinion. Section 30.410 addresses this need (in a manner consistent with OWCP's practices under section 8123 of the FECA) and indicates that an employee may not have anyone else present at the examination, other than a physician paid by him or her, unless OWCP decides that exceptional circumstances exist. This section also indicates that where an actual examination is not needed, OWCP may send the case file for a second opinion review.

Also consistent with section 8123 of the FECA, Sec. 30.411 describes what OWCP will do once it receives the report from the second opinion physician. OWCP will base its determination on entitlement on the report that has greater probative value, unless there is a conflict in the medical evidence between the second opinion physician and the employee's physician. A conflict only occurs when two reports of virtually equal weight and rationale reach opposing conclusions. When this occurs, OWCP will appoint a third physician to make a referee examination, and the report of this physician will be entitled to special weight sufficient to resolve the conflict if it has sufficient probative value. An employee may not have anyone else present at the referee examination, unless OWCP decides that exceptional circumstances exist, and OWCP may send the case file for review by a referee physician if an actual examination is not needed.

Section 30.412 indicates that the costs of the directed medical examinations described in Secs. 30.410 and 30.411 will be paid for out of the fund as medical benefits. In addition, OWCP will reimburse the employee for necessary and reasonable expenses incident to such directed medical examinations out of the fund.
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Medical Reports

Section 30.415 contains a general description of what a medical report submitted to OWCP from an attending physician should contain, and Sec. 30.416 indicates that Form EE7 should be used as a guide in the preparation of medical reports. For cases requiring hospital treatment or prolonged care, Sec. 30.417 indicates that periodic narrative reports from the attending physician are required, and that OWCP may ask the physician to respond to questions regarding continuing medical treatment for the accepted occupational illness.

Medical Bills

Medical providers should submit medical bills directly for payment out of the compensation fund. However, in those instances where an employee pays a medical bill and claims for reimbursement out of the fund, Sec. 30.420 refers the employee to the itemized bill procedures described in Sec. 30.702, while Sec. 30.421 sets out the standard industry practice of requiring submission of medical bills by the later of the end of the calendar year after the year the expense was incurred, or the end of the calendar year after the year OWCP accepted the claim.

Since the OWCP fee schedule sets maximum limits on amounts payable for many medical services, Sec. 30.422 notes that an employee may be only partially reimbursed for medical expenses because the amount he or she paid exceeds the maximum allowable charge. When this happens, OWCP will advise the employee of his or her responsibility to ask the provider to refund the excess charge paid to the employee, or to credit the employee's account. If the provider refuses to do so, OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances involved.
Subpart FSurvivors; Payments and Offsets; Overpayments

Survivors

Sections 30.500 through 30.502 address the identification of persons entitled to receive monetary compensation based on their relationship to a deceased covered employee under the Act. The class of persons who may be a ``survivor'' under the EEOICPA is taken from section 8133 of the FECA, as required by section 3621(18) of the EEOICPA. Any reference to section 8133 of the FECA is solely for the purpose of identifying the individuals who may be survivors under EEOICPA. Section 8109 of the FECA provides the order of precedence and proportion of monetary compensation to be paid to the eligible surviving beneficiaries, if any, under sections 3628(e)(2) and 3630(e)(2) of the EEOICPA. These regulations specifically detail who may be entitled to receive compensation based upon their survivor status. It should be noted that widows, widowers and minor children are the only persons who need not be dependent upon the deceased covered employee to receive monetary compensation as a survivor. The remaining persons, who may be survivors under section 8133 of FECA, must have been ``dependent'' upon the deceased covered employee at his or her time of death. The result of this provision is that adult children of deceased covered employees, as well as other remaining family members, such as ``nondependent'' parents, siblings, grandparents or grandchildren, will not be eligible to receive any monetary compensation under this Act. Finally, OWCP will take all necessary steps to determine the identity and correct amount of compensation to be paid to each and every eligible surviving beneficiary.

Payments and Offsets

Sections 30.505 through 30.507 address the rules for the payment of monetary compensation to claimants under the EEOICPA. No vested right exists to receive compensation under the EEOICPA, thus claimants must be alive to receive the compensation for which they filed a claim. In cases where the claimant is deceased, OWCP will pay the eligible surviving beneficiaries or their legal guardian, if any. In making payment on a claim OWCP will take all necessary and reasonable steps in determining the entitlement and identity of the claimant and/or the eligible surviving beneficiaries related to a claim for benefits, as well as any offset required by section 3641 of the EEOICPA to such an amount awarded. OWCP will attempt to ensure that the correct person will receive payment in the correct amount by reserving the right to conduct any investigation, including requiring any claimant or eligible surviving beneficiary to provide or execute an affidavit, record or document, or authorize the release of any information deemed necessary for purposes of payment. No payment will be processed unless an ``Acceptance of Payment'' form is signed and returned by the beneficiary. Furthermore, any failure by the claimant or eligible surviving beneficiary to cooperate with an investigation or provide information to OWCP may be deemed a rejection of the payment, unless the claimant or eligible surviving beneficiary does not have the legal authority to provide, release or authorize access to the requested information or documents. Any rejected compensation payment, or shares of compensation payment, will not be distributed to the remaining eligible surviving beneficiaries, rather, the payment will be returned to the Fund. With respect to the ``offset'' provisions within Sec. 30.505, OWCP is requiring claimants and eligible surviving beneficiaries who receive money awards or settlements based on injuries suffered, for which they have also filed a claim under the EEOICPA, to declare such amounts received for purposes of subtracting that amount from the total award to be paid on the EEOICPA claim. For purposes of OWCP's offset calculations, such claims as state workers' compensation benefits, life insurance or health insurance contracts will not be included in the analysis. The provisions in this section concerning multiple payments are set forth to provide notice to claimants and survivors that a covered employee's injuries due to any of the occupational illnesses recognized under the EEOICPA give rise to only one lumpsum payment of monetary compensation per covered employee. However, a claimant who is a covered employee and who also qualifies as an eligible surviving beneficiary may receive more than one payment; similarly, an eligible surviving beneficiary may receive payment or a portion of a payment each time he or she qualifies as an eligible surviving beneficiary.

Finally, the provisions in Secs. 30.505 and 30.506 regarding ``beryllium sensitivity'' make clear that no lumpsum monetary compensation will be paid for such illness, rather ``monitoring'' will be the form of compensation afforded to such covered employees in accordance with section 3628(a)(2) of the Act. Monitoring shall consist of regular medical examinations and diagnostic testing to determine if the covered employee has developed ``established chronic beryllium disease.'' Once the individual develops and has diagnosed the established chronic beryllium disease, he or she may then submit evidence of such diagnosis to OWCP and request appropriate benefits under the EEOICPA.

Overpayments

Sections 30.510 through 30.513 detail the process of how OWCP will identify and pursue collection of overpayments of compensation for purposes of the EEOICPA. These sections have been written to highlight and clarify OWCP's
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process to identify, notify, resolve and collect any overpayments made to EEOICPA beneficiaries. Specifically, OWCP will notify each recipient of any compensation payment by including with each check a narrative description indicating the reasons for payment. For those payments sent via electronic funds transfer (EFT) clear notification of the date and amount of payment will appear on the recipient's bank statement. When OWCP initially identifies an overpayment it will notify the recipient of its existence and attempt to clarify and resolve the dispute through an informal process. Specifically, OWCP will notify the beneficiary of the overpayment and allow the beneficiary 30 days to submit comments in writing and documentation contesting the overpayment. Upon the end of that 30day period, OWCP will notify the beneficiary of its determination of whether a debt is owed to OWCP. If this informal process fails to resolve the dispute, OWCP will then advise the recipient of its intentions to collect the overpayment using the Department's debt collection procedures set forth in 29 CFR part 20. Finally, if the Department's own procedures fail to procure the repayment of the debt, such overpayment is subject to the provisions of the Federal Claims Collection Act of 1996 (as amended) and the debt may be referred to the Department of Justice, or a debt collection agency. Subpart GSpecial Provisions

This subpart addresses some additional matters that can arise in connection with a claim under the EEOICPA. It contains provisions describing representation of claimants before OWCP and also describes the subrogation rights the United States has upon payment of compensation under the Act, as well as the statutory election of remedies for claimants who file tort suits against beryllium vendors or atomic weapons employers.

Representation

Section 30.600 notes that while the claims process established by this part is informal and nonadversarial, a claimant may appoint one individual at a time to represent his or her interests before OWCP. Such appointments must be in writing, and OWCP will only recognize one individual at a time as the duly appointed representative for the claimant. Section 30.601 sets out the legal restrictions on who may serve as a representative, and when a federal employee can be appointed to act as a claimant's representative. Finally, Sec. 30.602 indicates that the claimant is solely responsible for paying any representative's fee for services and costs associated with the representation; OWCP is in no way liable for any portion of the representative's fee. EEOICPA section 3648 limits the attorneys fees that can be charged a claimant and provides a $5000 fine for exceeding those limits. Since DOJ is responsible for deciding whether to seek the imposition of a fine, the Department defers to DOJ's interpretation of the statutory limitation. Third Party Liability

Section 3642 of the Act provides that upon payment of compensation to a claimant, the United States is subrogated to any right or claim that the claimant may have on account of his or her injuries, for the amount of such payment of compensation. Sections 30.605 through 30.611 describe the manner in which the United States will exercise this statutory authority. These sections require claimants who have received EEOICPA benefits to inform OWCP if they receive money or other property as a result of a settlement or judgment related to their claims, and provide advice regarding the method of valuing structured settlements and the amount to which the United States is subrogated. These sections also note that a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by the EEOICPA is a recovery that must be reported to OWCP, while payments to an employee or eligible surviving beneficiary as a result of an insur

FOR FURTHER INFORMATION CONTACT

Shelby S. Hallmark, Acting Director, Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S3524, 200 Constitution Avenue, N.W., Washington, D.C. 20210, Telephone: 2026930036 (this is not a tollfree number).

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