[Federal Register Volume 70, Number 109 (Wednesday, June 8, 2005)]
[Rules and Regulations]
[Pages 33590-33639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10936]



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Part II





Department of Labor





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Office of Workers' Compensation Programs



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20 CFR Parts 1 and 30



Performance of Functions; Claims for Compensation Under the Energy 
Employees Occupational Illness Compensation Program Act; Interim Rule

  Federal Register / Vol. 70, No. 109 / Wednesday, June 8, 2005 / Rules 
and Regulations  

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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB51


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

AGENCY: Office of Workers' Compensation Programs, Employment Standards 
Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document contains the interim final regulations governing 
the administration of the Energy Employees Occupational Illness 
Compensation Program Act of 2000, as amended (EEOICPA or Act) by the 
Department of Labor (Department or DOL). Part B of the Act provides 
uniform lump-sum payments and medical benefits to covered employees 
and, where applicable, to survivors of such employees, of the 
Department of Energy (DOE), its predecessor agencies and certain of its 
vendors, contractors and subcontractors. Part B of the Act also 
provides smaller uniform lump-sum payments and medical benefits to 
individuals found eligible by the Department of Justice (DOJ) for 
benefits under section 5 of the Radiation Exposure Compensation Act 
(RECA) and, where applicable, to their survivors. Part E of the Act 
provides variable lump-sum payments (based on a worker's permanent 
impairment and/or years of established wage-loss) and medical benefits 
for covered DOE contractor employees and, where applicable, provides 
variable lump-sum payments to survivors of such employees (based on a 
worker's death due to a covered illness and any years of established 
wage-loss). Part E of the Act also provides these same payments and 
benefits to uranium miners, millers and ore transporters covered by 
section 5 of the RECA and, where applicable, to survivors of such 
employees. The Office of Workers' Compensation Programs (OWCP) 
administers the adjudication of claims and the payment of benefits 
under EEOICPA, with the Department of Health and Human Services (HHS) 
estimating the amounts of radiation received by employees alleged to 
have sustained cancer as a result of such exposure and establishing 
guidelines to be followed by OWCP in determining whether such cancers 
are at least as likely as not related to employment. Both DOE and DOJ 
are responsible for notifying potential claimants and for submitting 
evidence necessary for OWCP's adjudication of claims under EEOICPA.

DATES: Effective Date: This interim final rule is effective on June 8, 
2005.
    Applicability date: This interim final rule applies to all claims 
filed on or after June 8, 2005. This rule also applies to any claims 
that are pending before OWCP on June 8, 2005.
    Compliance Date: Affected parties do not have to comply with the 
new information collection requirements in Sec. Sec.  30.102, 30.231, 
30.232, 30.806, 30.905 and 30.907 until DOL publishes in the Federal 
Register the control number assigned by the Office of Management and 
Budget (OMB) to these information collection requirements. Publication 
of the control number will notify the public that OMB has approved the 
new information collection requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). It should be noted that OMB 
approval of the new information collection requirements will be a 
revision to the currently approved collection in OMB Control No. 1215-
0197.
    Comments: The Department invites comments on the interim final rule 
from interested parties. Comments on the interim final rule must be 
received by August 8, 2005. Written comments on the new information 
collection requirements in this rule must be received by July 8, 2005.

ADDRESSES: You may submit comments on the interim final rule, 
identified by Regulatory Information Number (RIN) 1215-AB51, by any ONE 
of the following methods:
    Federal e-Rulemaking Portal: The Internet address to submit 
comments on the rule is http://www.regulations.gov. Follow the Web site 
instructions for submitting comments.
    E-mail: Comments on the rule may be submitted by e-mail to [email protected]. You must include ``RIN 1215-AB51'' in the 
subject line of the e-mail containing your comments.
    Mail: Submit written comments to Shelby Hallmark, Director, Office 
of Workers' Compensation Programs, Employment Standards Administration, 
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., 
Washington, DC 20210. Because of security measures, mail directed to 
Washington, DC is sometimes delayed. We will only consider comments 
postmarked by the U.S. Postal Service or other delivery service on or 
before the deadline for comments.
    Instructions: All comments must include the RIN 1215-AB51 for this 
rulemaking. Receipt of any comments, whether by mail, Internet, or e-
mail, will not be acknowledged. Because DOL continues to experience 
delays in receiving postal mail in the Washington, DC area, commenters 
are encouraged to submit any comments by mail early.
    Comments on the interim final rule will be available for public 
inspection during normal business hours at the address listed above for 
mailed comments. Persons who need assistance to review the comments 
will be provided with appropriate aids such as readers or print 
magnifiers. Copies of this interim final rule may be obtained in 
alternative formats (e.g., large print, audiotape or disk) upon 
request. To schedule an appointment to review the comments and/or to 
obtain the interim final rule in an alternative format, contact OWCP at 
202-693-0031 (this is not a toll-free number).
    Written comments on the new information collection requirements 
described in this interim final rule should be sent to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Attention: Desk Officer for Employment Standards Administration, 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of 
Workers' Compensation Programs, Employment Standards Administration, 
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., 
Washington, DC 20210, Telephone: 202-693-0031 (this is not a toll-free 
number).
    Individuals with hearing or speech impairments may access this 
telephone number via TTY by calling the toll-free Federal Information 
Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Energy Employees Occupational Illness Compensation Program Act 
of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et seq., was 
originally enacted on October 30, 2000. The initial version of EEOICPA 
established a compensation program (known as Part B of the Act) to 
provide a uniform lump-sum payment of $150,000 and medical benefits as 
compensation to covered employees who had sustained designated 
illnesses due to their exposure to radiation, beryllium, or silica 
while in the performance of duty for DOE and certain of its vendors,

[[Page 33591]]

contractors and subcontractors. Part B of the Act also provided for 
payment of compensation to certain survivors of these covered 
employees, and for payment of a smaller uniform lump-sum ($50,000) to 
individuals (who would also receive medical benefits), or their 
survivors, who were determined to be eligible for compensation under 
section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 
2210 note, by DOJ. Primary responsibility for the administration of 
Part B of the Act was assigned to DOL by Executive Order 13179 
(``Providing Compensation to America's Nuclear Weapons Workers'') of 
December 7, 2000 (65 FR 77487). On May 25, 2001, the Department issued 
interim final regulations (66 FR 28948) governing its administration of 
Part B of the Act, commenced administration of Part B of the Act on 
July 31, 2001, and issued final regulations on December 26, 2002 (67 FR 
78874) that went into effect on February 24, 2003.
    The initial version of EEOICPA also created a second program (known 
as Part D of the Act) that required DOE to establish a system by which 
DOE contractor employees (and their eligible survivors) could seek 
assistance from DOE in obtaining state workers' compensation benefits 
if a Physicians Panel determined that the employee in question had 
sustained a covered illness as a result of work-related exposure to a 
toxic substance at a DOE facility. A positive panel finding that was 
accepted by DOE required DOE, to the extent permitted by law, to order 
its contractor not to contest the claim for state workers' compensation 
benefits. However, Congress amended EEOICPA in Subtitle E of Title XXXI 
of the Ronald W. Reagan National Defense Authorization Act for Fiscal 
Year 2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004), 
by abolishing Part D of the Act and creating a new Part E (codified at 
42 U.S.C. 7385s through 7385s-15) that it assigned to DOL for 
administration. Part E establishes a new system of variable federal 
payments for DOE contractor employees, uranium workers covered by 
section 5 of RECA, and eligible survivors of such employees. Congress 
also amended several of the other provisions contained in EEOICPA that 
applied to Part B and specified that DOL was to prescribe regulations 
implementing the amendments to EEOICPA and commence administration of 
Part E within 210 days of its enactment.

II. Administrative Procedure Act Issues

    Section 7385s-10(e) of EEOICPA clearly directs the Secretary of 
Labor to ``prescribe regulations necessary for the administration of 
[Part E] * * * not later than 210 days after the date'' the Ronald W. 
Reagan National Defense Authorization Act for Fiscal Year 2005 was 
enacted, and further authorizes the Secretary to ``prescribe interim 
final regulations necessary to meet'' this 210-day deadline. The 
Department believes that this grant of authority to the Secretary to 
prescribe interim final regulations by May 26, 2005 contemplates 
displacement of Administrative Procedure Act (APA) notice and comment 
procedures and allows the publication of interim final regulations 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, pre-adoption procedures are not 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). DOL cannot fully 
adjudicate claims under Part E of 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 Department of Labor to 
commence administration of Part E by the deadline of May 26, 2005: 
approval of the notice of proposed rulemaking by the Secretary and OMB; 
publication in the Federal Register; receipt of, consideration of, and 
response to 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. Accordingly, 
the Department believes that under 5 U.S.C. 553(b)(B), good cause 
exists for waiver of notice and comment rulemaking procedures because 
issuance of proposed rules would be impracticable and contrary to the 
public interest.
    While notice and comment rulemaking is being waived, the Department 
is interested in comments and advice regarding changes that should be 
made to these interim regulations. The Department will carefully 
consider all comments on the regulations contained in this interim 
final rule received on or before August 8, 2005, and will publish the 
final regulations with any necessary changes.
    Under the APA, substantive rules generally cannot take effect until 
30 days after the rule is published in the Federal Register. However, 
section 553(d)(3) of the APA states that agencies may waive this 30-day 
requirement for ``good cause'' and establish an earlier effective date. 
As explained above, the Department believes that there is ``good 
cause'' for waiver of the APA requirement for notice and comment 
rulemaking because it would be both impractical and contrary to the 
public interest for the Department to fulfill that requirement. 
Similarly, the Department believes that the ``good cause'' exception to 
the 30-day effective date requirement for substantive rules in the APA 
applies to this rule, because observing this requirement would be both 
impractical and contrary to the public interest. As noted above, DOL 
will not be able to fully adjudicate claims under Part E of EEOICPA 
until the regulations in this rule are in effect. Since Congress has 
directed DOL to commence administration of Part E no later than May 26, 
2005 in section 7385s-10(f)(1) of EEOICPA, the Department believes that 
``good cause'' exists for waiver of the usual 30-day effective date 
requirement for substantive rules and for this rule to become effective 
immediately upon the date of its publication in the Federal Register.

III. Overview of Regulatory Changes

    Congress, in enacting Part B of EEOICPA, created a 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. When it amended EEOICPA to create Part E, Congress 
established a second program in an effort to also ensure an equally 
efficient, uniform, and adequate compensation system for DOE contractor 
employees and RECA section 5 workers who contracted illnesses due to 
their exposures to toxic substances as a result of employment at a DOE 
facility or a RECA section 5 facility, as appropriate. These 
regulations describe the processes that OWCP will use so that 
employees, and, when applicable, their survivors, will receive the 
benefits provided by Part B and Part E of EEOICPA in the efficient and 
uniform manner intended by Congress. The following discussion describes 
the many significant changes to the regulations that currently appear 
as 20 CFR parts 1 and 30, but does not include any discussion of 
corrections of typographical errors, or minor wording changes and 
clarifications that do not affect the substance of the existing 
regulations.

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20 CFR Part 1

    This part is the same as current part 1 (Sec. Sec.  1.1 through 
1.6), with the exception of the authority citation, and is reprinted in 
full for the ease of the reader. The authority citation has been 
updated to reflect that Congress assigned responsibility for 
administration of the new Part E of EEOICPA established by Public Law 
108-375 to DOL.

20 CFR Part 30

Subpart A--General Provisions

    This subpart is substantially the same as the current subpart A 
(Sec. Sec.  30.0 through 30.17). The amended subpart adds material 
describing the expanded responsibilities of DOL under EEOICPA, as well 
as definitions necessary for administration of Part E of the Act.
Introduction
    Section 30.0 now describes, in general terms, the types of 
compensation available under both Parts B and E of EEOICPA, the persons 
to whom this compensation may be paid, and the differing eligibility 
requirements that apply to claimants under Part B and Part E. Section 
30.2 has been updated to briefly describe how the tasks involved in 
administering Part B and Part E of EEOICPA have been assigned, both 
within DOL and among the Secretaries of Labor, Health and Human 
Services, and Energy, and the Attorney General, following the 
amendments enacted on October 28, 2004, while Sec.  30.3 summarizes how 
the existing and new regulations in this part are organized by subject 
area.
Definitions
    Amended Sec.  30.5 compiles the definitions for the principal terms 
used in this part and is substantially unchanged from the existing 
section. It includes terms specifically defined in 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 provided in 
Sec.  30.5, including, in particular, those addressed in the following 
paragraphs.
    Section 3168 of Public Law 108-375 amended the prior statutory 
definition of atomic weapons employee at 42 U.S.C. 7384l(3) to add 
employees who did not work during the period their employer had a 
contract with DOE and were instead only employed during a period of 
residual radioactive contamination as determined by the National 
Institute for Occupational Safety and Health (NIOSH). Thus, the 
regulatory definition of this term in Sec.  30.5(c) has been modified 
to reflect this amendment.
    The Sec.  30.5(p) definition of covered Part E employee is intended 
to serve as a shorthand term and refers to both DOE contractor 
employees (defined in section 7385s(1) of the Act) and RECA section 5 
uranium workers (defined in section 7385s-5(b)(3) of the Act) who have 
been determined by OWCP to have contracted covered illnesses through an 
exposure to toxic substances at a DOE facility or a RECA section 5 
facility, as appropriate. In order to make it consistent with (and also 
distinguish it from) Sec.  30.5(p), the definition of covered employee 
in existing Sec.  30.5(p) has been amended to read as covered Part B 
employee and has been moved to amended Sec.  30.5(q).
    In order to allow readers of this rule to readily distinguish 
between the illnesses that are compensable under Parts B and E, this 
section also includes regulatory definitions of covered illness in 
amended Sec.  30.5(r) and occupational illness in amended Sec.  
30.5(bb). While neither of these terms is altered in any fashion in 
this rule, they are both defined in this section to highlight the need 
to differentiate between an occupational illness that is compensable 
under Part B of the Act, and a covered illness that is compensable 
under Part E.
    The Department defines Department of Energy facility in Sec.  
30.5(v) by repeating the definition found in section 7384l(12) of the 
Act. As noted in amended Sec.  30.5(x)(2), DOL adopts the list of 
facilities established by the Department of Energy that is in effect on 
the date of publication of this Interim Final Rule (69 FR 51825). DOL 
will periodically update this list as it deems appropriate in its sole 
discretion by publishing a revised list of covered facilities in the 
Federal Register. Determinations of the Director that a facility is a 
Department of Energy facility is solely for the purpose of 
administering the EEOICPA.
    As noted above, Public Law 108-375 abolished Part D of the Act and, 
at the same time, established a new Part E that maintained the former 
Part D's focus on covered illnesses of employees who were exposed to a 
``toxic substance'' at a DOE facility. Because section 7385s-4(c) of 
EEOICPA requires DOL to use the causation standard from DOE's former 
Part D regulations when it determines if an employee has sustained a 
covered illness due to exposure to a toxic substance at a DOE facility, 
Sec.  30.5(ii) sets out the same definition for toxic substance that 
originally appeared in DOE's regulations for former Part D at 10 CFR 
852.2 for use under Part E. As DOE explicitly indicated when it 
published its final regulations on August 14, 2002 (67 FR 52843), noise 
is not considered to be a ``toxic substance'' for purposes of the 
compensation program.
Information in Program Records
    Existing Sec.  30.11 describes how all records relating to claims 
for benefits filed under the Act are covered by the Privacy Act and are 
described in a system of records entitled DOL/ESA-49. This system of 
records is maintained by and under the control of OWCP. All records 
relating to a claim obtained by OWCP from the claimant or any other 
source are maintained by OWCP in a case record. A claimant may obtain, 
without charge, one complete copy of the records in the case record. 
This will allow a claimant to obtain a copy of any medical, employment, 
exposure or other evidence that might be of use to a physician of the 
claimant's choosing in providing medical evidence to OWCP necessary to 
establish a claimant's entitlement to benefits available under the Act. 
Should OWCP obtain further records after furnishing a free copy of a 
case record to a claimant, the claimant can obtain one copy of those 
further records, without charge, by requesting them from OWCP.

Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

    This subpart is substantially similar to the current subpart B, 
which 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 under Parts B 
and E of the Act. As explained in Sec.  30.111, the claimant bears the 
burden of proving by a preponderance of the evidence the existence of 
each and every criterion necessary to establish eligibility under any 
claim category in Part B or Part E. It also explains the special 
procedures used in the adjudication of claims for radiogenic cancer 
under Parts B and E that do not involve members of the Special Exposure 
Cohort.
Filing Claims for Benefits Under Part B and Part E of EEOICPA
    Current Sec. Sec.  30.100, 30.101 and 30.102 (renumbered as Sec.  
30.103 in this rule) have been revised to accommodate the addition of 
Part E claims to the existing claims adjudication process. Sections 
30.100 and 30.101 now include new language that a claim for benefits 
under Part E, including a claim originally filed with DOE as a claim 
for assistance under former Part D (which was

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repealed on October 28, 2004), will not be considered to be ``filed'' 
earlier than October 30, 2000. Also, the language in these same two 
sections that employees or survivors can choose to file a claim for 
benefits for only certain potentially compensable conditions and forgo 
filing for a condition for which a payment has been received that would 
necessitate an offset of EEOICPA benefits is new, although it describes 
the current policy of OWCP. New Sec.  30.102 describes how covered Part 
E employees who have previously been awarded impairment or wage-loss 
benefits under Part E of the Act can file claims for additional periods 
of wage-loss and/or an increased percentage of permanent impairment.
Verification of Alleged Employment
    Current Sec.  30.106, which describes DOE's employment verification 
responsibilities in the context of claims of survivors, is consolidated 
into Sec.  30.105 in this rule, which now describes these 
responsibilities in the context of both survivors' and employees' 
claims. New Sec.  30.106 sets out the current practice of OWCP and DOE 
of arranging for other entities to provide OWCP with information needed 
to verify alleged employment, when necessary.
Evidence and Burden of Proof
    Existing Sec.  30.111 describes how a claimant bears the burden of 
proving by a preponderance of the evidence the existence of each and 
every criterion necessary to establish eligibility under any 
compensable claim category. OWCP collects a variety of evidence that 
will assist a claimant in meeting his or her burden of proof. In 
addition to employment verification information obtained by OWCP, 
discussed above, in the course of developing a case OWCP obtains from 
DOE and its contractors and subcontractors and other sources a variety 
of medical, environmental, exposure and other information relevant to 
individual employees or the facilities in general.
    When a claims examiner reviews a submission by a claimant and 
determines that the medical evidence is insufficient to meet the 
claimant's burden of proof, the claimant can be referred to one or more 
physicians with appropriate expertise for an opinion on any issue or 
issues relevant to adjudication of the claim. When OWCP makes these 
referrals, the physician will be asked relevant questions and provided 
with a Statement of Accepted Facts prepared by OWCP and all relevant 
records from the case file. Alternatively, and in the case of a claim 
by a survivor, a Statement of Accepted Facts prepared by OWCP and all 
relevant records can be forwarded to one or more physicians for their 
review without the necessity of an examination. Thus, in a case where 
the claimant is unable to provide sufficient medical evidence from a 
physician with the necessary expertise, OWCP can, at its expense, 
obtain the opinion of a physician with the appropriate expertise.
Special Procedures for Certain Radiogenic Cancer Claims
    Section 30.115, which explains the special procedures used in the 
early adjudication of claims for radiogenic cancers that do not seek 
Part B benefits under the Special Exposure Cohort provisions, has been 
modified slightly to include new language stating that except for Part 
B claims previously accepted under section 7384u of the Act, all claims 
seeking benefits under Part E for radiogenic cancers will be forwarded 
to HHS for dose reconstruction.

Subpart C--Eligibility Criteria

    This subpart is substantially the same as current subpart C 
(Sec. Sec.  30.200 through 30.226), with a number of small changes in 
language to reflect the new responsibilities of DOL under EEOICPA that 
have resulted from the enactment of Part E. In addition to these small 
changes (and other changes to reflect existing administrative 
practices), subpart C has been amended to include the substantive 
changes discussed below.
Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E
    Current Sec.  30.210 sets forth the criteria for eligibility for 
claims relating to radiogenic cancer under Part B of EEOICPA; these 
criteria are quite specific and reflect Part B's focus on a narrowly 
defined list of occupational illnesses. The criteria for claims 
relating to radiogenic cancer under Part E of EEOICPA differ (due to 
differences between Parts B and E) from the more specific eligibility 
criteria for radiogenic cancer claims under Part B and describe a 
particular subset of the broad range of covered illnesses that may be 
compensated under Part E. However, both Part B and Part E provide 
coverage for radiogenic cancer. Therefore, current Sec.  30.210 has 
been designated as subsection (a) of amended Sec.  30.210, and new 
subsection (b) sets forth the statutory eligibility criteria for claims 
relating to radiogenic cancer under new Part E. Under Part E, a claim 
for radiogenic cancer will be compensable if it is ``at least as likely 
as not'' that the cancer is due to an employee's work-related exposure 
to radiation; thus, using the ``probability of causation'' (PoC) 
guidelines established by HHS, this type of claim will be compensable 
if the probability of causation is 50% or higher.
    Current Sec.  30.213, which describes how OWCP makes a finding 
whether a radiogenic cancer claimed under Part B was sustained in the 
performance of duty under section 7384n of the Act, has been modified 
slightly to more fully describe OWCP's required use of HHS's regulatory 
PoC guidelines in its adjudication of those questions. OWCP has also 
decided to utilize the same HHS PoC guidelines to determine whether 
exposure to radiation at a DOE facility or a RECA section 5 facility 
was at least as likely as not a significant factor in causing or 
contributing to a cancer for the purposes of Part E.
    The radioepidemiological tables upon which the PoC guidelines are 
based were originally developed in response to a 1983 congressional 
directive in the Orphan Drug Act (Pub. L. 97-414, 42 U.S.C. 241 note), 
which required HHS to ``devise and publish radioepidemiological tables 
that estimate the likelihood that persons who have or have had any of 
the radiation-developed cancers and who have received specific doses 
prior to the onset of such disease developed cancer as a result of such 
doses.'' Congress required determinations whether radiogenic cancers 
were to be considered sustained in the performance of duty for the 
purposes of Part B to be based upon those tables in section 7384n(c) of 
EEOICPA.
    OWCP has decided to use those same HHS regulatory PoC guidelines in 
its adjudication of claims for radiogenic cancer under Part E for 
several reasons. First, it recognizes that while it is not practical to 
legislate specific mechanisms to determine causation for the numerous 
medical conditions that exposure to tens of thousands of toxic 
substances at covered facilities could potentially cause, Congress has 
acknowledged that use of HHS's PoC guidelines is an appropriate 
mechanism to determine whether a cancer was at least as likely as not 
caused by work-related radiation exposure. In view of the lack of a 
scientific basis for attributing any particular case of cancer to any 
cause, the epidemiological approach taken by Congress in Part B, and 
now to be utilized by OWCP for Part E, is more likely to result in a 
scientifically valid and consistent determination process than merely 
attempting to reach a determination

[[Page 33594]]

based on opinions likely to contain a substantial speculative 
component. Thus, the requirement in amended Sec.  30.213 that OWCP use 
HHS's PoC guidelines to adjudicate claims for radiogenic cancer under 
Part E is both appropriate and rational.
    This conclusion finds further support in the Report of the NCI-CDC 
Working Group to Revise the 1985 NIH Radioepidemiological Tables 
(September 2003), which found that the PoC model was a viable method to 
adjudicate claims for radiation-related instances of cancer that 
appropriately summarized ``the likelihood that prior radiation exposure 
might be causally related to cancer occurrence.'' Use of the PoC 
guidelines for claims under both Part B and Part E will allow OWCP to 
adjudicate the entitlement of radiogenic cancers that are potentially 
compensable under Part B and Part E in a uniform manner. Any process 
for determining coverage of claims for radiogenic cancers that would 
yield inconsistent results as to whether that cancer is covered under 
Parts B and E is unlikely to be understood or accepted by claimants and 
other stakeholders.
    The determination by OWCP to utilize the HHS PoC guidelines will 
only apply to a determination whether a cancer was contracted solely 
through exposure to radiation at a DOE facility or a RECA section 5 
facility, as appropriate. The HHS PoC guidelines will not be used to 
determine if a cancer claimed under Part E was contracted through 
exposure to radiation combined with exposure to one or more other toxic 
substances because the risk models that were used by HHS to develop the 
PoC guidelines for cancer at 42 CFR part 81 only address radiation 
exposure. When it issued those regulations on May 2, 2002 (67 FR 22297-
22298), HHS expressly noted that ``[n]one of the risk models explicitly 
accounts for exposure to other occupational, environmental, or dietary 
carcinogens. Models accounting for these factors have not been 
developed and may not be possible to develop based on existing 
research.''
    Thus, when a claim for cancer under Part E cannot be accepted based 
on exposure to radiation alone, because the PoC was found to be less 
than 50%, the claimant will be given an opportunity to establish that 
the cancer was caused by a combination of exposure to radiation and 
exposure to one or more other toxic substances. OWCP will adjudicate 
those claims for cancer allegedly due to exposures to radiation 
combined with exposure to one or more other toxic substances using the 
eligibility criteria for other covered illnesses in new Sec. Sec.  
30.230 through 30.232 discussed below.
Eligibility Criteria for Other Claims Under Part E
    New Sec.  30.230 sets forth the criteria established by section 
7385s-4 of EEOICPA that OWCP uses to determine if an employee 
contracted a covered illness. In addition, this new section also states 
that these criteria are satisfied by showing that the covered illness 
at issue was accepted in a prior claim under Part B of EEOICPA or 
section 5 of RECA, or that the Secretary of Energy under the former 
Part D accepted a Physicians Panel positive determination regarding the 
existence of the covered illness prior to the effective date of this 
rule. Section 30.230(d)(2) is included for the purpose of informing 
claimants of the kinds of information that OWCP will consider in 
determining whether it is ``at least as likely as not'' that exposure 
to a toxic substance at a Department of Energy facility or at a RECA 
section 5 facility, as appropriate, was a significant factor in 
aggravating, contributing to, or causing the illness. OWCP will make 
that determination after carefully weighing all of the evidence 
supplied by the claimant or obtained by OWCP from other sources.
    Two of the elements that a claimant must establish before OWCP can 
determine that an employee contracted a covered illness are that the 
employee was employed at either a DOE facility or a RECA section 5 
facility, and that he or she was exposed to a toxic substance at work. 
New Sec.  30.231 describes how to prove employment at either a DOE 
facility or a RECA section 5 facility, as well as how to prove that the 
employee was exposed to a toxic substance while so employed.
    New Sec.  30.232 sets forth how a claimant can prove that the 
employee was diagnosed with a covered illness, or has sustained an 
injury, illness, impairment or disease as a consequence of a covered 
illness. This section describes the type of medical information, 
releases, and work histories that must be submitted to enable OWCP to 
make this finding. The section also makes it clear that the claimant 
may present other evidence deemed necessary by OWCP to establish the 
diagnosis or prove the existence of an injury, illness, impairment or 
disease.

Subpart D--Adjudicatory Process

    This subpart is substantially the same as current subpart D 
(Sec. Sec.  30.300 through 30.320), with a number of small changes in 
language to emphasize that this subpart only applies when OWCP 
adjudicates claims for entitlement under the Act; certain other 
decisions are made using other administrative processes (such as those 
used to resolve medical billing disputes). In addition to these small 
changes, subpart D has been amended to include new Sec.  30.301, which 
implements new section 7384w in Part B of the Act, providing that an 
OWCP district office claims examiner and/or a Final Adjudication Branch 
(FAB) reviewer may, in the exercise of their discretion, issue 
subpoenas for persons and documents when adjudicating a Part B claim. A 
subpoena will be issued at the request of a claimant only by a FAB 
reviewer in connection with FAB's adjudication process for Part B 
claims. Section 30.301 also sets forth the methods for requesting 
issuance of the subpoenas.
    Section 30.302 is also new and contains information about the fees 
and costs payable to lay and expert witnesses who are subpoenaed by 
OWCP. The section explains who is responsible for making the payment to 
the witness, and the factors that will govern this determination. New 
Sec.  30.303 is intended to clarify the duties of both DOE and/or DOE 
contractors to provide information or documents in response to a 
request from OWCP under Part E of EEOICPA.
Hearings and Final Decisions on Claims
    Section 30.317 has been rewritten to better describe the FAB's 
discretion to return a claim to the district office for the issuance of 
a new recommended decision before issuing a final decision. This new 
language is being added so the regulations reflect OWCP's current 
administrative practice and is not intended to change the substance of 
the current regulation. Similar minor edits of a non-substantive nature 
were made to Sec.  30.318(a) and (b). Section 30.318(c) is new and is 
being added to more fully explain OWCP's existing policy regarding 
objections to the PoC methodology established by HHS regulations, and 
to OWCP's application of that methodology. Section 30.319(c), regarding 
requests for reconsideration of FAB decisions, has been revised to 
describe current procedures for reviewing these requests, granting or 
denying them, and determining the effective date of a resulting new 
final decision. This revision reflects current OWCP practice with no 
substantive changes intended.

Subpart E--Medical and Related Benefits

    This subpart is substantially the same as current subpart E 
(Sec. Sec.  30.400 through 30.422), since only minor modifications

[[Page 33595]]

were necessary in order to accommodate the addition of approved claims 
under Part E of EEOICPA to OWCP's existing processes for providing 
authorized medical benefits and treatment. No changes were made to the 
sections that describe the processes OWCP uses to refer employees for 
directed medical examinations, which will also occur in the 
adjudication of claims under Part E.

Subpart F--Survivors; Payments and Offsets; Overpayments

    The overall organization of this subpart is substantially the same 
as the current subpart F (Sec. Sec.  30.500 through 30.513), other than 
the slight modifications that were necessary throughout the subpart to 
accommodate the addition of approved claims under Part E of EEOICPA to 
OWCP's existing claims payment processes. The amended subpart also 
contains regulatory language implementing OWCP's newly granted 
statutory authority to waive the required recovery of such benefits.
Survivors
    The amended versions of Sec. Sec.  30.500 through 30.502 now 
identify those persons who may be potentially eligible to receive 
monetary compensation under Part B and/or Part E, based on their 
relationship to a deceased covered Part B employee or a deceased 
covered Part E employee. These sections also highlight the differences 
in the order of precedence that OWCP must use to determine which 
eligible surviving beneficiary or beneficiaries to pay under Parts B 
and E of EEOICPA.
    Section 30.500(a)(2) contains the statutory definition of a 
``child'' and also includes the more restrictive statutory criteria 
that an individual must satisfy to be a ``covered'' child under Part E. 
These criteria for Part E of the Act include the same statutory 
definition of a ``child'' used in Part B of the Act, as well as 
specific age, educational or self-sufficiency criteria that must be met 
as of the date of the deceased Part E employee's death. As amended by 
this rule, Sec.  30.501 still describes the order of precedence among 
survivors under EEOICPA; the order of precedence that OWCP must use 
under Part B now appears without substantive change as Sec.  30.501(a), 
while new Sec.  30.501(b) describes the order of precedence for Part E 
survivor claims. It should be noted that survivors who are either 
grandparents, grandchildren or parents of a deceased Part E employee 
are not considered eligible surviving beneficiaries of that individual 
under Part E. Also, the comparable alternative order of precedence 
provisions in Sec.  30.501(a)(6) for Part B and Sec.  30.501(b)(3) for 
Part E, which describe those statutorily mandated instances when a 
surviving spouse must share a lump-sum payment with minor children of 
the deceased employee, are not triggered under the exact same 
circumstances--Sec.  30.501(a)(6) requires that the child of the 
deceased Part B employee be a minor at the time benefits are paid by 
OWCP, while Sec.  30.501(b)(3) only requires that the child of the 
deceased Part E employee satisfy the additional criteria for a 
``covered'' child (as described above) as of the time of the death of 
the employee, not also at the time of payment of benefits by OWCP.
Payments and Offsets
    Amended Sec. Sec.  30.505 through 30.507 and newly added Sec.  
30.509 set out the rules for the payment of monetary compensation to 
claimants under EEOICPA for both Part B and Part E. Although the 
process for paying claims under both parts of the Act is similar, there 
are some differences that are reflected in these amended sections. New 
Sec.  30.505(d) describes the maximum aggregate compensation that is 
payable under Part E (exclusive of medical benefits), as set forth in 
42 U.S.C. 7385s-12. The statute limits the aggregate compensation 
(other than medical benefits) that OWCP may pay under Part E to all 
claimants for each individual whose illness or death serves as a basis 
for compensation or benefits under Part E to a total of $250,000. This 
is the only reading of the statutory language that is consistent with 
the statutory requirement that the computation of both impairment 
benefits and wage-loss benefits under Sec.  7385s-2 be based upon 
impairment or wage-loss that is ``the result of any covered illness.'' 
This reading is also consistent with congressional intent, as reflected 
in the Conference Report for Public Law 108-375, which states that the 
``maximum aggregate benefit available under [Part] E of EEOICPA is 
$250,000.'' See H.R. Conf. Rep. No. 108-767, at 894 (2004).
    Newly added Sec.  30.509 describes the option that certain 
claimants under Part E have to choose between receiving the benefits 
payable to them as a survivor, and the benefits that would have been 
payable to the deceased covered Part E employee if he or she were still 
living at the time of payment. This option is contained in 42 U.S.C. 
7385s-1(2)(B), and new Sec.  30.509 notes that claimants will only have 
the opportunity to make this choice in certain limited circumstances. 
First, a survivor of a covered Part E employee may choose to exercise 
this option only if the employee died after filing his or her Part E 
claim (or a claim under former Part D), but prior to receiving any 
compensation under the Act. In addition, the covered Part E employee's 
death must have been solely caused by a non-covered illness or 
illnesses for this option to be available to the survivor. If both of 
these requirements are met, it is likely that a survivor would choose 
to receive the benefits that the deceased covered Part E employee would 
have received since, in that situation, no survivor benefits would be 
payable for the death. Section 30.509(c) points out, however, that 
since impairment determinations can only be made in conformance with 
subpart J of these regulations, and therefore can only be made if the 
case record contains rationalized medical evidence that is sufficiently 
detailed to meet the pertinent requirements of the American Medical 
Association's Guides to the Evaluation of Permanent Impairment (AMA's 
Guides), OWCP will not make an impairment determination for a deceased 
covered Part E employee if the medical evidence in the case record does 
not satisfy those requirements.
Overpayments
    Amended Sec. Sec.  30.510 through 30.512 are substantially the same 
as the current versions of these sections and continue to describe how 
OWCP identifies overpayments, notifies individuals that they were 
overpaid, and together with new Sec. Sec.  30.513 through 30.520, 
considers requests by individuals to waive recovery of such 
overpayments under the new statutory authority granted DOL by Congress 
in section 7385j-2 of EEOICPA.
    New Sec.  30.513 sets out the initial requirement in 42 U.S.C. 
7385j-2(b) that only those individuals who were ``without fault'' in 
the creation of an overpayment of EEOICPA benefits may request waiver 
of recovery of the overpayment. If the individual satisfies this 
threshold requirement, new Sec.  30.514 describes the two statutory 
criteria, also found in section 7385j-2(b), that OWCP will use to 
evaluate the individual's request for waiver. Waiver of recovery may be 
granted by OWCP if either: (1) Recovery of the overpayment would defeat 
the purpose of the EEOICPA; or (2) recovery of the overpayment would be 
against equity and good conscience. These two criteria are discussed in 
greater detail in new Sec. Sec.  30.516 and 30.517, respectively, which 
set out the general parameters that OWCP will observe when it decides 
if a request for waiver satisfies either of the two statutory criteria. 
New Sec.  30.515 also notes that OWCP will not automatically find the 
individual to be

[[Page 33596]]

``without fault'' in the creation of an overpayment simply because OWCP 
erred in making the payment. Any such error on OWCP's part cannot 
vitiate the statutory criteria for eligibility to any benefits payable 
out of the fund established by Congress in section 7384e(d) of the Act.
    To enable OWCP to consider requests for waiver of recovery of 
overpayments, and to set a reasonable schedule for repayment of the 
overpayment if waiver is denied, new Sec.  30.518 notes that OWCP may 
require the recipient of an overpayment of compensation to submit 
pertinent information relating to his or her income, expenses and 
assets. This same section also notes that a failure to submit this 
requested information within 30 days of the request from OWCP will 
result in the denial of any request for waiver of recovery, and that no 
further requests for waiver will be considered until the requested 
information is provided to OWCP. New Sec.  30.519 notes that after 
considering any such evidence or argument submitted in support of a 
waiver request, OWCP will issue a final decision on the matter of the 
overpayment, and that the adjudicatory processes described in subpart D 
will not be used to issue these particular decisions. Since a decision 
whether to waive recovery of an overpayment is not a decision on an 
individual's underlying entitlement under the Act and is similar to 
certain other decisions that OWCP issues (like decisions on medical 
billing disputes) without using the adjudicatory processes described in 
subpart D, any such decision will be issued by the OWCP district office 
with jurisdiction over the claim.
    Existing Sec.  30.513 has been modified and now appears as new 
Sec.  30.520 in this rule. As the former Sec.  30.513 did, this new 
section notes the statutory authority, independent from EEOICPA, that 
OWCP has to recover overpayments of EEOICPA benefits. It also notes 
OWCP's new authority, derived from 42 U.S.C. 7385j-2(a), to recover an 
overpayment of EEOICPA benefits by decreasing any later benefit 
payments to which the overpaid individual is entitled.

Subpart G--Special Provisions

    This subpart is substantially the same as current subpart G 
(Sec. Sec.  30.600 through 30.620), other than the slight modifications 
that were necessary in order to accommodate the addition of claims 
under Part E of the Act to the existing regulations governing third 
party liability, and some minor clarifications of the regulations 
describing the effect of tort suits against beryllium vendors and 
atomic weapons employers on claims under Part B of the Act. This 
subpart also contains a fuller regulatory description of the 
restrictions on representative fees in sections 7385g and 7385s-9 of 
EEOICPA, as well as several new sections that describe how OWCP will 
``coordinate'' its payment of Part E benefits with benefits received 
under a state workers' compensation system for the same covered illness 
or illnesses.
Representation
    While Sec. Sec.  30.600, 30.601 and 30.602 remain substantially the 
same as in the current rule, Sec.  30.603 has been amended to better 
describe the fees that may be collected by a representative who assists 
with an EEOICPA claim. This section also identifies DOJ as the 
executive branch department with the authority for prosecuting 
violations of the fee-for-service limitations in the Act. Lastly, 
amended Sec.  30.603 clarifies the statement in existing Sec.  30.603 
that the fee limitations do not apply to representative services 
rendered in connection with a petition filed with a U.S. District Court 
or any subsequent appeal.
Coordination of Part E Benefits With State Workers' Compensation 
Benefits
    Section 7385s-11 of EEOICPA requires that Part E benefits be 
coordinated with state workers' compensation benefits. This reduces the 
possibility of claimants receiving duplicate payments for the same 
covered illness. While this provision appears to create tension between 
it and section 7385 of EEOICPA (now applicable to both Parts B and E), 
which excludes workers' compensation benefits from the general offset 
required by that section, OWCP is implementing the provisions of 
section 7385s-11 in order to effectuate all of the provisions of the 
recent amendments. Section 7385s-11 provides specific authority to 
coordinate Part E benefits and amounts received under state workers' 
compensation laws. OWCP views the more specific authority in that 
section as taking precedence over the general exclusion in section 
7385, because failing to do so would, in effect, negate the enactment 
of section 7385s-11. New Sec. Sec.  30.625, 30.626 and 30.627 thus 
briefly describe how OWCP may coordinate benefits payable under Part E 
with certain payments the claimant receives under a state workers' 
compensation program for the same covered illness. Section 30.625 
generally discusses what ``coordination of benefits'' means for 
purposes of administering Part E. Section 30.626 discusses how OWCP 
will perform this required coordination of benefits, including how it 
will calculate the amount of any coordination. Section 30.627 indicates 
that OWCP has sole authority to waive the coordination of benefits, in 
accordance with the explicit terms of section 7385s-11(b) of the Act, 
and discusses circumstances that might warrant such a waiver.

Subpart H--Information for Medical Providers

    This subpart is substantially the same as current subpart H 
(Sec. Sec.  30.700 through 30.726), modified slightly throughout to 
reflect current forms and billing terminology, and also to accommodate 
minor changes to OWCP's medical bill processing system. It also 
contains one change of a substantive nature in Sec.  30.722, which is 
one of the sections that describes the process OWCP uses to exclude 
medical providers from participation in the EEOICPA program. The 
substance of current Sec.  30.722 now appears as subsection (b) of 
amended Sec.  30.722, and a new subsection (a) has been added to permit 
medical providers to request subpoenas upon a showing of good cause in 
exclusion proceedings that involve medical services provided under Part 
B of EEOICPA. Subpoenas are now available under those particular 
circumstances, pursuant to the authority granted by new section 7384w 
in Part B of EEOICPA.

Subpart I--Wage-Loss Determinations Under Part E

    Subpart I is new and sets forth the procedures that OWCP uses to 
determine whether a covered Part E employee sustained wage-loss as a 
result of contracting a covered illness, and the amount of any such 
wage-loss that is compensable under Part E of EEOICPA to covered Part E 
employees, and survivors of deceased covered Part E employees.
General Provisions
    Section 30.800 indicates that pursuant to section 7385s-2(a)(2) of 
EEOICPA, years of wage-loss occurring up to and including the calendar 
year that a covered Part E employee reaches ``normal retirement age'' 
may be compensable under Part E. This section further notes that in 
making these determinations, OWCP is required to make findings 
regarding the ``average annual wage'' of the covered Part E employee 
prior to contracting a covered illness, the percentage of such average 
annual wage the covered Part E employee earned during the alleged 
subsequent calendar years of wage-loss, and whether the wage-loss 
during the

[[Page 33597]]

years in question was due to the covered illness.
    Certain terms used in determining compensation based on wage-loss 
are defined in the statute or these regulations, and are compiled in 
Sec.  30.801. Average annual wage refers to the baseline wage against 
which OWCP will measure a subsequent calendar-year wage earned by a 
covered Part E employee, and is defined in Sec.  30.801(a) the same way 
that the term is defined in section 7385s-2(a)(2)(A)(ii) of EEOICPA. 
Given the specific language used in that section of the Act, OWCP will 
determine that the average annual wage of a covered Part E employee is 
$0 if he or she was retired during the 12 quarters immediately 
preceding the quarter during which he or she first experienced wage-
loss due to exposure to a toxic substance at a DOE facility or RECA 
section 5 facility, as appropriate. Section 30.801(b) defines normal 
retirement age as the age at which an employee may receive an unreduced 
Social Security retirement benefit, which is the same way this 
statutory term is described in section 7385s-2(a)(2)(A)(iii). That age 
varies (by date of birth) and is set by section 216(l) of the Social 
Security Act, 42 U.S.C. 416(l). Because OWCP will make its 
determinations under this subpart using quarterly periods, many of the 
regulatory terms used in subpart I refer to quarters of years rather 
than months. Section 30.801(c) thus defines quarter as the three-month 
period January through March, April through June, July through 
September, or October through December. Section 30.801(d) indicates 
that a quarter during which the employee was unemployed means any 
quarter during which the covered Part E employee had $700 (in constant 
2005 dollars) or less in wages, unless the quarter is one during which 
the employee was retired. However, claimants have the opportunity to 
submit probative factual evidence that the employee was actually 
unemployed during a time period other than a quarter as defined in 
Sec.  30.801(c). If probative evidence of unemployment using a time 
period other than a quarter is submitted, OWCP will decide if, in the 
sole exercise of its discretion, it should modify its finding regarding 
the average annual wage of the covered Part E employee.
    Finally, Sec.  30.801(e) defines a year of wage-loss as a calendar 
year in which the employee's earnings were less than what OWCP found to 
be his or her average annual wage, after such earnings have been 
adjusted by the Consumer Price Index for All Urban Consumers (CPI-U), 
as established by the Bureau of Labor Statistics, to reflect their 
value in the year in which the employee first experienced wage-loss due 
to exposure to a toxic substance at a facility covered by the program. 
As an example of how this wage adjustment will be made, assume that a 
covered Part E employee's average annual wage is found to be $50,000 
(averaging his wages for the twelve quarters from the last quarter of 
1984 through the third quarter of 1987), and that for the calendar year 
1987 (the year in which he first experienced wage-loss due to a covered 
illness during the fourth quarter) the CPI-U is 100. If the employee's 
subsequent wages in calendar year 1988 did not rise because medical 
restrictions due to his covered illness forced him to transfer to a 
lower paying position that paid $45,000 in 1987 and $50,000 in 1988, 
and the CPI-U for 1988 was 105, OWCP will adjust the employee's 1988 
earnings to reflect their value in 1987 by performing the following 
calculation: $50,000 (in 1988 dollars) /1.05 = $47,619 (in 1987 
dollars). In that instance, OWCP would conclude that the covered Part E 
employee had sustained a year of wage-loss in 1988 as defined by Sec.  
30.801(e) because he earned less in adjusted dollars in 1988 than his 
average annual wage determined by Sec.  30.801(a), despite the fact 
that his earnings in 1988 equaled his average annual wage.
Evidence of Wage-Loss
    Section 30.805 describes the factual evidence of earnings that OWCP 
will rely upon to determine the average annual wage of a covered Part E 
employee, and the duration and extent of such employee's compensable 
wage-loss. In some situations, OWCP may rely upon earnings information 
that has been reported to the Social Security Administration, but may 
also rely upon additional earnings information submitted by or 
requested from a claimant as described below in connection with Sec.  
30.806. Subsection (b) of Sec.  30.805 also indicates that in addition 
to factual evidence of a covered Part E employee's earnings, the 
claimant must submit rationalized medical evidence that is of 
sufficient probative value to establish, to the satisfaction of OWCP, 
that the period of wage-loss at issue is causally related to the 
covered Part E employee's covered illness. These two types of evidence 
are necessary to establish compensable wage-loss under the explicit 
language of section 7385s-2(a)(2)(A)(iii) of EEOICPA.
    As noted in the preceding paragraph, Sec.  30.806 provides 
claimants with the opportunity to submit factual evidence of earnings 
from another source that, if it is found by OWCP to be both authentic 
and acceptable as evidence that was produced in the ordinary course of 
business due to the covered Part E employee's employment, may be used 
to support an assertion of a different average annual wage for the 
covered Part E employee, or a greater duration or extent of wage-loss, 
than the evidence described in Sec.  30.805(a) would support. If OWCP 
receives this evidence from a claimant, Sec.  30.806 indicates that 
OWCP will consider it when it determines, in the exercise of its 
discretion, the average annual wage and/or wage-loss of the covered 
Part E employee in accordance with Sec. Sec.  30.811 and 30.812.

Determinations of Average Annual Wage and Percentages of Loss

    After it receives the factual and medical evidence described in 
Sec. Sec.  30.805 and 30.806, OWCP will calculate the average annual 
wage of a covered Part E employee pursuant to the method described in 
Sec.  30.810. In general, that section notes that OWCP will add up the 
covered Part E employee's earnings during the 12 quarters prior to the 
quarter in which the employee first experienced wage-loss due to a 
covered illness, excluding any quarters during which the employee was 
unemployed (unless the claimant has submitted sufficient earnings 
information from a different source), divide that figure by the number 
of quarters during which the employee was not unemployed, and multiply 
the result by four to derive his or her average annual wage.
    Subsections (a) and (b) of Sec.  30.811 indicate that OWCP will 
then compare the average annual wage of a covered Part E employee with 
his or her earnings in later calendar years (after adjusting those 
earnings in accordance with Sec.  30.801(e)) to ascertain the calendar 
years during which the employee experienced wage-loss. Subsections (c) 
and (d) of Sec.  30.811 then provide that OWCP will aggregate the 
number of calendar years of wage-loss in which the employee's adjusted 
earnings did not exceed 50 percent of his or her average annual wage, 
and the number of calendar years of wage-loss in which those earnings 
exceeded 50 percent but not more than 75 percent of such average annual 
wage, and will pay the employee $15,000 or $10,000 per calendar year, 
respectively.
    Section 30.812 explains that a covered Part E employee who has been 
previously awarded compensation for wage-loss may file claims for 
additional calendar years of wage-loss subsequent to any calendar years 
for which he or she has already been paid

[[Page 33598]]

compensation. Consistent with the statute, this section provides that 
no compensation for wage-loss will be payable for any calendar year of 
wage-loss beyond the calendar year in which the employee reached his or 
her normal retirement age set forth in section 216(l) of the Social 
Security Act, 42 U.S.C. 416(l).

Special Rules for Certain Survivor Claims Under Part E

    Section 30.815 contains the special rules that apply to survivor 
claims involving wage-loss under Part E of EEOICPA. Subsection (a) 
indicates that for each calendar year after the calendar year in which 
a covered Part E employee died, through and including the calendar year 
in which the employee would have reached his or her normal retirement 
age, OWCP will presume that the employee earned wages that did not 
exceed 50 percent of his or her average annual wage. Subsection (b) 
indicates that except as provided in Sec.  30.815(a), OWCP will 
calculate the wage-loss of a deceased covered Part E employee in 
accordance with the provisions of Sec. Sec.  30.800 through 30.811. 
Finally, subsection (c) of Sec.  30.815 describes how OWCP will 
determine if the eligible surviving beneficiary(s) of a deceased 
covered Part E employee is entitled to receive additional compensation 
in the amount of either $25,000 or $50,000 based on either ten or 20 
aggregate calendar years of wage-loss experienced by the employee, as 
provided by section 7385s-3(a)(2) or (3) of the Act.

Subpart J--Impairment Benefits Under Part E

    This new subpart sets forth the procedures that OWCP uses to 
determine if a covered Part E employee is entitled to compensation 
under Part E based on impairment that is the result of a covered 
illness. It includes provisions describing how OWCP determines the 
extent of an employee's impairment that is attributable to a covered 
illness, the submission of medical evidence of impairment, what OWCP 
considers to be a ratable permanent impairment in certain defined 
situations, and the potential eligibility of covered Part E employees 
for additional impairment benefits following an award of impairment 
benefits by OWCP.
General Provisions
    Section 30.900 describes the criteria, set forth in sections 7385s, 
7385s-2, 7385s-4 and 7385s-5 of EEOICPA, that an employee must satisfy 
to qualify for an impairment award under Part E: (1) That he or she is 
a covered Part E employee found to have contracted a covered illness 
through exposure to a toxic substance at a DOE facility or RECA section 
5 facility, as appropriate; and (2) that he or she has been found by 
OWCP to have an impairment that is the result of the accepted covered 
illness.
    Section 30.901 describes the general process that OWCP uses, based 
on section 7385s-2 of the Act, to determine if a covered Part E 
employee's claim for an alleged impairment attributable to a covered 
illness is compensable. Subsection (a) indicates that OWCP will 
consider medical reports from physicians that include opinions 
regarding the extent of whole person impairment of all organs and body 
functions compromised by a covered illness, and the extent of such 
impairment attributable to the employee's covered illness. Subsection 
(b) provides that OWCP will determine the employee's minimum impairment 
rating in accordance with the AMA's Guides, based on medical reports 
from physicians trained to perform these impairment evaluations, and 
subsection (c) of Sec.  30.901 notes that OWCP will specify criteria 
that physicians must meet to perform impairment evaluations. Those 
criteria, which will include certification by a relevant medical board 
and other objective factors necessary to qualify a physician to perform 
an impairment evaluation under Part E, will be available to claimants, 
physicians and members of the public on OWCP's website. Finally, 
subsection (d) of Sec.  30.901 provides that if one or more percentage 
points of the minimum impairment rating are found by OWCP to be the 
result of a covered illness, the employee is entitled to an award based 
on those percentage points. Section 30.902 describes the formula that 
OWCP uses to calculate impairment awards, from section 7385s-2(a)(1) of 
the Act.
Medical Evidence of Impairment
    There are two ways that OWCP can obtain an impairment evaluation of 
a covered Part E employee that is sufficient to permit OWCP to 
adjudicate impairment benefits. Section 30.905(a) indicates that OWCP 
can ask the employee to undergo an impairment evaluation performed by a 
physician who meets the criteria OWCP has identified. Alternatively, 
subsection (b) of Sec.  30.905 provides that an employee can obtain an 
impairment evaluation at his or her own initiative and submit it to 
OWCP for consideration, but notes that OWCP will only deem it 
appropriate to consider if it satisfies three criteria indicative of 
probative value: (1) It was performed by a physician who meets the 
criteria identified by OWCP relating to the covered illness or 
illnesses in question; (2) it was performed no more than one year prior 
to the date it was received by OWCP; and (3) it also conforms to all 
other applicable requirements set out in the regulations in this part.
    OWCP will pay for impairment evaluations, except in certain defined 
circumstances, as indicated in Sec.  30.906. That section also notes 
that while OWCP will only pay for one impairment evaluation obtained by 
an employee, it may direct the employee to undergo additional 
evaluations at its expense if such evaluations are warranted in its 
discretion.
    Section 30.907 describes how the district office evaluates the 
evidence of impairment in the case record. Subsection (a) notes that 
the employee may submit arguments and/or additional medical evidence of 
impairment to challenge an impairment evaluation in the case file at 
any time before the district office issues a recommended decision on 
the claim. However, subsection (a) also states that the district office 
will not consider an additional impairment evaluation, even if it 
differs from the impairment evaluation provided under Sec. Sec.  30.905 
or 30.906, if the report fails to conform to the criteria listed in 
Sec.  30.905(b).
    Section 30.907(b) notes that in those situations where the district 
office obtains an additional impairment evaluation of a covered Part E 
employee that differs from the impairment evaluation that was provided 
under Sec. Sec.  30.905 or 30.906, the district office will base the 
recommended decision on the alleged impairment on the impairment 
evaluation it considers to have the greatest probative value, including 
any obtained through a directed examination deemed necessary under 
Sec. Sec.  30.410 or 30.411. Section 30.908 addresses the FAB's 
evaluation of the evidence of impairment in the case record. Consistent 
with Sec.  30.907(a), which describes how the district office considers 
medical evidence of impairment, Sec.  30.908(a) notes that if a 
claimant submits an additional impairment evaluation to the FAB that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will not consider the additional impairment evaluation 
if it fails to satisfy the criteria listed in Sec.  30.905(b). 
Subsection (b) provides that the claimant has the burden of proving 
that the additional impairment evaluation submitted is more probative 
than the evaluation relied upon by the district

[[Page 33599]]

office. Subsection (c) of Sec.  30.908 indicates that if a claimant 
submits an additional impairment evaluation that differs from the 
impairment evaluation relied upon by the district office, the FAB will 
review all relevant evidence of impairment in the case record and base 
its final decision regarding impairment on the evidence it considers 
most probative.
Ratable Medical Impairments
    The Conference Report for Public Law 108-375 suggests that for 
those impairments for which the AMA's Guides do not provide a method to 
assign a numerical percentage, the Department should devise another 
method to determine the amount of an impairment award to a covered Part 
E employee. See H.R. Conf. Rep. No. 108-767, at 893 (2004). The 
language of section 7385s-2(b), however, requires that a minimum 
impairment rating be determined in accordance with the AMA's Guides. In 
view of the inconsistency between that statutory language and the 
Conference Report, and the absence of any accepted system for 
calculating numerical impairment ratings for impairments that the AMA's 
Guides do not provide a method for calculating, OWCP is not doing so in 
this rulemaking. Thus, Sec.  30.901(a) indicates that an impairment 
that cannot be assessed quantitatively as a percentage using the AMA's 
Guides will not be included in the impairment award. As an example of 
when this will occur, subsection (b) of Sec.  30.910 specifically notes 
that a mental impairment that does not originate from a documented 
physical dysfunction of the nervous system, and thus cannot be assigned 
a numerical percentage using the AMA's Guides, will not be included in 
the minimum impairment rating.
    Section 30.911(a) is derived from the AMA's Guides and indicates 
that only those impairments that are considered permanent are 
``ratable.'' Subsection (a) provides that an impairment resulting from 
a covered illness will be included in the minimum impairment rating of 
the covered Part E employee only if OWCP finds that it has reached 
maximum medical improvement, meaning that the impairment is well-
stabilized and thus unlikely to change substantially, with or without 
additional medical treatment. Subsection (b) of Sec.  30.911, however, 
indicates that notwithstanding Sec.  30.911(a), if OWCP finds that an 
employee's covered illness is in the terminal stages based on medical 
evidence contained in the case record, it will include an impairment 
that results from such covered illness in the minimum impairment rating 
of the employee, even if the impairment has not reached maximum medical 
improvement. OWCP has determined that in such situations, it is not 
likely that an impairment will undergo any significant improvement, and 
that the interest of awarding impairment benefits promptly to such 
employees outweighs the possibility that on occasion, an employee might 
receive compensation for an impairment resulting from a covered illness 
in the terminal stages that unexpectedly improves significantly.
    Section 30.912 notes that a covered Part E employee who has 
previously been awarded impairment benefits by OWCP may file a claim 
for additional impairment benefits based on an increase in the minimum 
impairment rating attributable to the covered illness or illnesses from 
the impairment rating that formed the basis for the previous award of 
such benefits by OWCP. However, this section indicates that OWCP will 
only adjudicate claims for an increased rating that are filed at least 
two years from the date of the last award of impairment benefits, since 
to do otherwise would lead to obvious administrative inefficiencies. 
However, this waiting period will not apply to a claim for additional 
impairment that is based on an allegation that the employee contracted 
a new covered illness.

IV. Paperwork Reduction Act

    This interim final rule contains information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA). The 
information collection requirements set out in Sec. Sec.  30.401, 
30.404, 30.420, 30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of 
this rule, which relate to information required to be submitted by 
claimants and medical providers in connection with processing of bills, 
and overpaid individuals in connection with overpayments of EEOICPA 
benefits, were both submitted to and approved by OMB under the PRA, and 
the currently approved collections in OMB Control Nos. 1215-0054 
(expires June 30, 2007), 1215-0055 (expires November 30, 2006), 1215-
0137 (expires March 31, 2007), 1215-0144 (expires November 30, 2006), 
1215-0176 (expires January 31, 2007), 1215-0193 (expires March 31, 
2007) and 1215-0194 (expires March 31, 2007) will be revised to include 
new respondents added by this rule. The information collection 
requirements in this first group were not affected by any of the 
substantive changes that have been made in this rule.
    The information collection requirements in Sec. Sec.  30.100, 
30.101, 30.103, 30.111, 30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 
30.213, 30.214, 30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 
30.505 and 30.620 of this rule were also previously submitted to and 
approved by OMB under the PRA, and were assigned OMB Control No. 1215-
0197 (expires August 31, 2007). The information collection requirements 
in this second group were also not affected by any of the substantive 
changes that have been made in this rule. However, this rule revises 
the currently approved collection in OMB Control No. 1215-0197 by 
adding six new information collection requirements, and also by 
incorporating the existing requirements in the currently approved 
collection in OMB Control No. 1215-0199 (expires January 31, 2006); 
this revision of a currently approved collection will be submitted to 
OMB for review under the PRA on the date of publication of this rule. 
The new information collection requirements in this rule are in 
Sec. Sec.  30.102, 30.231, 30.232, 30.806, 30.905 and 30.907, and 
relate to information required to be submitted by either claimants or 
physicians as part of the EEOICPA claims adjudication process. While 
the information collection requirements in Sec.  30.106 relating to 
information to be submitted by current and former DOE contractors and 
subcontractors, atomic weapons employers, beryllium vendors and other 
entities in possession of employment data for claimants are not new, 
they appear for the first time in this rule and will be incorporated 
into OMB Control No. 1215-0197 in this revision. The Department is 
proposing to create one new form to implement one of the new 
collections (see section A below). The remaining new and incorporated 
collections will be implemented without any specific form, or with a 
form currently in use in OMB Control No. 1215-0197 (see sections B 
through I below).

A. Claim for Additional Wage-Loss/Impairment: Form EE-10 (Sec.  30.102)

    Summary: Covered Part E employees who have previously been awarded 
benefits for wage-loss and/or impairment by OWCP may file claims for 
additional wage-loss and/or impairment benefits, if they experience 
another calendar year of wage-loss or an increase in their minimum 
impairment rating. Claims filed using Form EE-10 must be supported by 
sufficient factual and/or medical evidence to establish that the 
claimant is entitled to the benefits at issue, either factual evidence 
of another calendar year of compensable wage-loss or medical evidence 
of an

[[Page 33600]]

increased minimum impairment rating due to a covered illness or 
illnesses. All claimants filing Form EE-10 are required to swear or 
affirm that the information provided on that form is true, and are 
obligated to inform OWCP of any subsequent changes to that information.
    Need: A Form EE-10 claiming for additional wage-loss and/or 
impairment benefits is necessary to initiate OWCP's adjudication 
process for these additional claims filed by covered Part E employees.
    Respondents and proposed frequency of response: It is estimated 
that 1,877 respondents annually will file one Form EE-10.
    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-10 is estimated to take an average of 
five minutes per respondent for a total annual burden of 156 hours.

B. Alternate Employment Verification Response (Sec.  30.106)

    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. To do so, claimants 
submit either a Form EE-3 listing periods of alleged covered 
employment, or a Form EE-4 containing basic employment information in 
situations where specific employment information is not available. If 
DOE is unable to verify the alleged employment history after reviewing 
records in its possession, but the alleged history identifies: (1) a 
beryllium vendor or DOE contractor or subcontractor that has been 
required by DOE to respond pursuant to 42 U.S.C. 7384v(c); or (2) some 
other entity in possession of pertinent employment data that has 
voluntarily agreed to respond, OWCP will ask the beryllium vendor, DOE 
contractor or subcontractor, or other entity to review data in its 
files regarding the employee and indicate if that data substantiates 
any periods of alleged covered employment listed on Form EE-3 or EE-4. 
This requirement is currently approved in OMB Control No. 1215-0199, 
and is being incorporated into this revision to an existing collection 
of information.
    Need: A documented 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 100 respondents annually will submit this collection of 
information a total of 20 times.
    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 30 minutes per response for a total annual burden of 
1,000 hours.

C. Employment History: Form EE-3 (Sec.  30.231)

    Summary: Employees and/or survivors claiming benefits under Part E 
of EEOICPA must establish, among other things, an employment history 
that includes at least one period of covered employment. Form EE-3 has 
been devised to elicit the basic factual information necessary to 
enable OWCP to make this particular finding of fact. In Form EE-3, 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 EE-3 is 
true. Further, the employment history provided on Form EE-3 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 Part E of EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 8,176 Part E respondents 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 EE-3 is estimated to take an average of 1 
hour per response for a total added annual burden of 8,176 hours.

D. Employment History Affidavit: Form EE-4 (Sec.  30.231)

    Summary: As noted in section C above, employees and/or survivors 
claiming benefits under Part E of 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 EE-3 may not be 
practicable (e.g., due to a lack of available information), Form EE-4 
may be used as an alternate method to provide OWCP with a basic 
employment history by affidavit. In Form EE-4, 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 EE-4 is true. Further, the 
employment history provided on Form EE-4 will be provided to DOE or 
other entities 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 Part E of EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 2,044 Part E respondents annually will file one Form EE-4.
    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-4 is estimated to take an average of 
30 minutes per response for a total added annual burden of 1,022 hours.

E. Medical Requirements: Form EE-7 (Sec.  30.232(a) and (b))

    Summary: Employees and/or survivors claiming benefits under Part E 
of EEOICPA (except for those who have received an award under section 5 
of RECA) must establish, among other things, that the employee 
sustained a covered illness. Form EE-7 has been devised to elicit the 
type of medical and occupational 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 and 
occupational evidence (prepared by medical providers) as necessary. 
Form EE-7 describes the general requirements for medical evidence 
submitted in support of a claim for a covered illness under Part E of 
EEOICPA.
    Need: Documentation of a covered illness is one of the elements 
that must be met to establish entitlement to benefits under Part E of 
EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 8,176 Part E respondents annually will file one response to Form 
EE-7.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the

[[Page 33601]]

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 added annual burden of 2,044 hours.

F. Supplemental Medical Evidence (Sec.  30.232(c))

    Summary: Employees and/or survivors claiming that an injury, 
illness, impairment or disability was sustained as a consequence of a 
covered illness under Part E must submit a narrative medical report 
from a physician that shows a causal relationship between the claimed 
consequential injury, illness, impairment or disability and the covered 
illness. A standardized form or format will not be used to request 
submission of this information, which will be collected on an as-needed 
basis.
    Need: Medical evidence of causal relationship is necessary to 
establish entitlement to benefits for a consequential injury, illness, 
impairment or disability under EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 1,500 Part E respondents annually will submit this collection of 
information once.
    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 added annual 
burden of 375 hours.

G. Alternative Wage-Loss Evidence (Sec.  30.806)

    Summary: OWCP may use wage data from the Social Security 
Administration and/or other third parties to make findings regarding 
the average annual wage and the nature and extent of compensable wage-
loss of a covered Part E employee. If a claimant disagrees with the use 
of that data to make these findings, he or she may voluntarily submit 
records that were produced in the ordinary course of business due to 
the employee's employment and try to persuade OWCP that Social Security 
Administration or other wage data should not be used to make the 
findings in question. A standardized form or format will not be used to 
collect this information, which will vary widely among respondents and 
occur only occasionally.
    Need: OWCP must have alternative wage-loss evidence of sufficient 
probative value before it can calculate benefits payable for wage-loss 
experienced by a covered Part E employee.
    Respondents and proposed frequency of response: It is estimated 
that 800 respondents annually will submit this collection of 
information once.
    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 30 minutes per response for a total annual burden of 
400 hours.

H. Medical Evidence of Impairment (Sec.  30.905)

    Summary: OWCP must obtain contemporaneous medical evidence from a 
physician experienced in evaluating permanent impairment before it can 
determine the impairment rating of a covered Part E employee. If the 
medical evidence that is already in the case record does not meet these 
criteria when this stage in the claims adjudication process is reached, 
OWCP will inform the claimant of this deficiency and request that he 
submit medical evidence sufficient for it to determine his overall 
impairment rating, and the number of percentage points of his rating 
that are attributable to his covered illness or illnesses. Since 
requests for an impairment evaluation will necessarily be illness-
specific, a standardized form or format cannot be used to request this 
information.
    Need: An impairment evaluation that meets OWCP's criteria must be 
in the case record before OWCP can determine the number of percentage 
points that are payable.
    Respondents and proposed frequency of response: It is estimated 
that 1,453 respondents annually will submit this collection of 
information once.
    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 
363 hours.

I. Additional Medical Evidence of Impairment (Sec.  30.907)

    Summary: After the district office receives an impairment 
evaluation that meets its criteria for compensating covered Part E 
employees, but before it issues a recommended decision on a claimant's 
impairment rating, the claimant may, on his own initiative and at his 
own cost, obtain additional medical impairment evidence supporting a 
higher rating and submit it to the district office for its 
consideration if it too meets the same criteria. A standardized form or 
format cannot be used to request this particular type of information 
because the impairment evaluation that it seeks to rebut will 
necessarily be specific to a particular employee.
    Need: Claimants may wish to submit additional impairment evidence 
that shows a higher rating before OWCP determines the number of 
compensable percentage points that are payable.
    Respondents and proposed frequency of response: It is estimated 
that 218 respondents annually will submit this collection of 
information once.
    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 
55 hours.

J. Total Annual Burden and Request for Comments

    Total public burden: The information collection requirements being 
either added to or incorporated into OMB Control No. 1215-0197 
(described above in sections A through I) have a total public burden 
hour estimate of 13,591. Using the latest National average hourly 
earnings $15.95 (from the Bureau of Labor Statistics), the total added 
annual public cost for these information collection requirements is 
estimated to be $216,776. There are no recordkeeping or collection 
costs associated with Form EE-10. Because the information requested by 
the collections described in sections B through I 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 EE-10 forms will involve postage and mailing 
costs; the remainder will be received directly by DOL personnel or 
contractors. The EE-3 form always accompanies the initial claim form 
filed, therefore no additional postage or mailing is required. An 
estimated annual total of 17,130 mailed responses to these information 
collection requirements, at $0.37 (for postage) + $0.03 (for an 
envelope) per response, would be $6,852.
    Request for comments: The public is invited to provide comments on 
the above-noted revision to the currently approved collection in OMB 
Control No. 1215-0197 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

[[Page 33602]]

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 revision to the currently approved collection in OMB Control 
No. 1215-0197, 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 8, 2005.

V. Statutory Authority

    Section 7384d of EEOICPA provides general statutory authority, 
which E.O. 13179 allocates to the Secretary, to prescribe rules and 
regulations necessary for administration of Part B of the Act. Section 
7385s-10 provides the Secretary with the general statutory authority to 
administer Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide 
the specific authority regarding medical treatment and care, including 
authority to determine the appropriateness of charges. The Federal 
Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et seq.), 
authorizes imposition of interest charges and collection of debts by 
withholding funds due the debtor.

VI. Executive Order 12866

    This rule is being treated as a ``significant regulatory action,'' 
within the meaning of E.O. 12866, because it is ``economically 
significant'' as defined by section 3(f)(1) of that Order. The payment 
of the benefits provided for by EEOICPA through the program 
administered pursuant to this regulatory action has an annual effect on 
the economy of $100 million or more. However, this rule does not 
adversely affect in a material way the economy, a sector of the 
economy, productivity, jobs, the environment, public health or safety, 
or State, local, or tribal governments or communities, as defined by 
section 3(f)(1) of E.O. 12866. This rule is also a ``significant 
regulatory action'' because it meets the criteria of section 3(f)(4) of 
that Order in that it raises novel or legal policy issues arising out 
of the legal mandate established by EEOICPA. The Department of Labor 
has also concluded that this rule constitutes a ``major rule,'' as that 
term is defined in the Small Business Regulatory Enforcement Fairness 
Act of 1996 (5 U.S.C. 804(2)), because of the effect on the economy 
noted above.
    Based on the factors and assumptions set forth below, DOL's 
estimate of the aggregate cost of benefits and administrative expenses 
of this regulatory action implementing Part B and Part E of EEOICPA is, 
in millions of dollars:

----------------------------------------------------------------------------------------------------------------
                                                             FY2005     FY2006     FY2007     FY2008     FY2009
----------------------------------------------------------------------------------------------------------------
Admin....................................................        $90       $156       $102        $77        $63
Benefits.................................................      1,025        760        593        468        424
----------------------------------------------------------------------------------------------------------------

    The Department's estimate of the benefits to be paid pursuant to 
EEOICPA and of the administrative costs of providing those benefits is 
based on program experience to date, data collected from other federal 
agencies, assumptions about the incidence of cancer, covered beryllium 
disease, chronic silicosis and other covered illnesses in the claimant 
population, life expectancy tables, dose reconstruction acceptance 
rates, Physician Panel acceptances under the former Part D of the Act, 
the anticipated distribution of benefit amounts, and its experience in 
estimating administrative and medical costs of workers' compensation 
programs.
    For Part B benefits, estimates for cancer claims are based in part 
on figures provided by DOE concerning the number of DOE and DOE 
contractor employees (estimated by DOE to be approximately 654,000 
since 1942), known cancer incidence rates in the general population 
obtained from the National Cancer Institute (the lifetime risk of being 
diagnosed with cancer is 45.67% for men and 38.09% for women for all 
body locations \1\), and the proportion of these claims likely to be 
accepted by OWCP. These benefit estimates include anticipated medical 
costs of $1,500 per year for 90% of the covered Part B employees, and 
$125,000 per year for the remaining 10% because they are undergoing 
intensive in-hospital medical treatment.
---------------------------------------------------------------------------

    \1\ From Table I-14, Lifetime Risk (Percent) of Being Diagnosed 
with Cancer by Site, Race and Sex, in the SEER Cancer Statistics 
Review 1975-2000, published by the National Cancer Institute.
---------------------------------------------------------------------------

    Part B benefit estimates for beryllium exposure are based on known 
incidence rates, known numbers of claimants with beryllium diseases, 
exposed population estimates (approximately 45,000 beryllium vendor 
employees, and several hundred thousand additional employees at DOE 
facilities), and medical costs of $3,000 per year for beryllium 
sensitivity, $4,000 per year for mild chronic beryllium disease, and 
$9,000 per year for severe chronic beryllium disease. Benefit estimates 
for chronic silicosis are based on figures obtained from DOE relating 
to the number of exposed employees (approximately 15,000 miners were 
employed digging tunnels in either Nevada or Alaska related to nuclear 
testing) and the expected incidence of chronic silicosis, and medical 
costs of $4,000 per year for mild chronic silicosis, and $9,000 per 
year for severe chronic silicosis. Benefit estimates for claims that 
require receipt of an award pursuant to section 5 of RECA are based on 
figures for the number of claims provided by DOJ, and $4,800 per year 
in medical costs.
    Part E benefit estimates for covered Part E employees are based on 
the proportion of overlap between Part B and Part E claims (95% of Part 
E claimants also have filed a Part B claim), the historical dose 
reconstruction approval rate (since the inception of Part B, OWCP has 
accepted 23% of the 5,658 non-SEC cancer cases adjudicated to date), 
the historical Physician Panel approval rate under the former Part D 
(35%) and the number of Special Exposure Cohort claims approved by 
OWCP. The benefit amounts (which are not uniform as is the case in Part 
B awards) are calculated based on an estimated distribution of claims 
with varying degrees of compensable impairment and wage-loss. 
Additional Part E benefits for individuals who are considered to be 
eligible RECA section

[[Page 33603]]

5 uranium workers are computed based upon the number of such claims 
received to date and the expected number of such claims in the future.
    Administrative cost estimates were developed based upon OWCP's 
experience to date in administering Part B and the other workers' 
compensation programs that fall within its area of administrative 
responsibility, using calculations of the number of incoming claims and 
forecasting the necessary full-time equivalents and other resources 
that are necessary to efficiently administer the program.
    No more extensive economic impact analysis of this rule is 
necessary because this regulatory action only addresses the transfer of 
funds from the federal government to individuals who qualify under 
EEOICPA and to providers of medical services in that program. This 
regulatory action has no affect on the functioning of the economy and 
private markets, on the health and safety of the general population, or 
on the natural environment. In addition, because this rule implements a 
statutory mandate, there are no feasible alternatives to this 
regulatory action. Finally, to the extent that policy choices have been 
made in interpreting statutory terms, those choices have no significant 
impact on the cost of this regulatory action. Such policy choices may 
affect who will be entitled to receive benefits (such as covered Part E 
employees with unratable impairments due to a covered illness), but 
will not have a significant impact on the number of eligible Part B or 
E beneficiaries or the level of benefits to which they are entitled.
    OMB has reviewed the rule for consistency with the President's 
priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department 
will report to Congress promulgation of this Interim Final Rule on the 
date of its publication in the Federal Register. The report will state 
that DOL has concluded that this rule is a ``major rule'' because it 
will likely result in an annual effect on the economy of $100 million 
or more.

VIII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of federal regulatory 
actions on state, local, and tribal governments, and the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' For purposes of the 
Unfunded Mandates Reform Act, this rule does not include any federal 
mandate that may result in increased annual expenditures in excess of 
$100 million by state, local or tribal governments in the aggregate, or 
by the private sector.

IX. Regulatory Flexibility Act

    The Department believes that this rule will have ``no significant 
economic impact upon a substantial number of small entities'' within 
the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The provisions of this rule that apply cost-control measures to 
payments for medical expenses are the only ones that could have a 
monetary effect on small businesses, and have been in effect since OWCP 
began administration of Part B of EEOICPA on July 31, 2001. The 
economic effect of these cost-control measures will not be significant 
for a substantial number of those businesses who will now participate 
in the program under Part E of EEOICPA, however, because no one 
business bills a significant amount to OWCP for EEOICPA-related 
services, and the monetary effect on bills that are submitted, while a 
worthwhile savings for the Government in the aggregate, will not be 
significant for any individual business affected.
    The cost-control provisions are: (1) A set schedule of maximum 
allowable fees for professional medical services; (2) A set schedule 
for payment of pharmacy bills; and (3) a prospective payment system for 
hospital inpatient services. The methodologies used for the first two 
of these provisions were explained in the text of the preamble to the 
earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 
28948) and 2002 (67 FR 78874), which essentially adopted payment 
systems that are prevalent in the industry. Their adoption for use in 
connection with OWCP's administration of Part E of the Act will 
therefore result in continued efficiencies for the Government and 
providers. The Government will benefit because OWCP did not develop new 
cost containment measures for Part E claims, but rather adopted 
existing and well-recognized measures that were already in place. The 
providers benefit because submitting a bill and receiving a payment 
will be almost the same as submitting it to Medicare, a program with 
which they are already familiar and have existing systems in place for 
billing--they will not have to incur unnecessary administrative costs 
to learn a new process because the EEOICPA bill process for Part E 
claims will be identical to the bill process that applies to Part B 
claims, and will not be readily distinguishable from the Medicare 
billing process. Similarly, pharmacies are familiar with billing 
through clearing houses and having their charges subject to limits by 
private insurance carriers. By adopting private sector uniform billing 
requirements and a familiar cost control methodology, OWCP has not 
altered the billing environment with which pharmacies are already 
familiar. The methods chosen, therefore, represent systems familiar to 
the providers. The third of these three provisions will not have an 
effect on a substantial number of ``small entities'' under Small 
Business Administration (SBA) standards, since most hospitals providing 
services for medical conditions covered by EEOICPA will have annual 
receipts that exceed the set maximum.
    The implementation of these cost-control methods will have no 
significant effect on any single medical professional or pharmacy since 
they are already used by Medicare, CHAMPUS, and the Departments of 
Labor and Veterans Affairs, among Government entities, and by private 
insurance carriers. In actual terms, the amount by which these provider 
bills might be reduced will not have a significant impact on any one 
small entity since these charges are currently being processed by other 
payers applying similar cost-control provisions. The costs to providers 
whose charges may be reduced also will be relatively small because 
EEOICPA bills simply will not represent a large share of any single 
provider's total business. Since the small universe of potential 
claimants is spread across the United States and this bill processing 
system will cover only those employees who have sustained an 
occupational illness or a covered illness and required medical 
treatment on or after October 30, 2000, the number of bills submitted 
by any one small entity which may be subject to these provisions is 
likely to be very small. Therefore, the ``cost'' of this rule to any 
one pharmacy or medical professional will be negligible. On the other 
hand, OWCP will see substantial aggregate cost savings that will 
benefit both OWCP (by strengthening the integrity of the program) and 
the taxpayers to whom the costs of the program are eventually charged.
    The Assistant Secretary for Employment Standards has certified to 
the Chief Counsel for Advocacy of the SBA that this rule will not have 
a significant impact on a substantial number of small entities. The 
factual basis for this certification has been

[[Page 33604]]

provided above. Accordingly, no regulatory impact analysis is required.

X. Executive Order 12988 (Civil Justice Reform)

    This rule has been drafted and reviewed in accordance with E.O. 
12988 and will not unduly burden the federal court system. While Part B 
of EEOICPA does not provide any specific procedures that claimants 
under that Part must follow in order to seek review of decisions on 
their claims, Part E specifies that claimants under that Part have 60 
days to file petitions for review of decisions on their claims in the 
United States district courts, and mandates the use of an ``arbitrary 
and capricious'' standard of review. It is reasonably likely that some 
EEOICPA claimants will seek review of adverse decisions in United 
States district courts pursuant to the APA (for claims under Part B of 
EEOICPA) or the EEOICPA itself (for claims under Part E). This rule 
should help minimize the burden placed on the courts by litigation 
seeking to challenge decisions under EEOICPA by providing claimants 
with an opportunity to seek administrative review of adverse decisions 
prior to resorting to the court system, and by providing a clear legal 
standard for affected conduct. The rule has been reviewed carefully to 
eliminate drafting errors and ambiguities.

XI. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with E.O. 13132 
regarding federalism, and has determined that it does not have 
``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

XII. Executive Order 13045 (Protection of Children From Environmental, 
Health Risks and Safety Risks)

    In accordance with E.O. 13045, the Department has evaluated the 
environmental health and safety effects of this rule on children, and 
has determined that it will have no effect on children.

XIII. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with E.O. 13211, the Department has evaluated the 
effects of this rule on energy supply, distribution or use, and has 
determined that it is not likely to have a significant adverse effect 
on them.

XIV. Submission to Congress and the General Accountability Office

    In accordance with the Congressional Review Act provisions of the 
Small Business Regulatory Enforcement Fairness Act, the Department will 
submit to each House of the Congress and to the Comptroller General a 
report regarding the issuance of this interim final rule on the date of 
its publication in the Federal Register. The report will note that this 
rule constitutes a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under the Congressional Review Act, major rules generally cannot 
take effect until 60 days after the rule is published in the Federal 
Register. However, section 808(2) of the Congressional Review Act 
states that agencies may waive this 60-day requirement for ``good 
cause'' and establish an earlier effective date. As explained above, 
the Department believes that there is ``good cause'' for waiver of the 
APA requirement for notice and comment rulemaking because it would be 
both impractical and contrary to the public interest for the Department 
to fulfill that requirement. Similarly, the Department believes that 
the ``good cause'' exception to the 60-day effective date requirement 
for major rules in the Congressional Review Act applies to this rule, 
because observing this requirement would be both impractical and 
contrary to the public interest. As noted above, DOL will not be able 
to fully adjudicate claims under Part E of EEOICPA until the 
regulations in this rule are in effect. Since Congress has directed DOL 
to commence administration of Part E no later than May 26, 2005 in 
section 7385-10(f)(1) of EEOICPA, DOL believes that ``good cause'' 
exists for waiver of the usual 60-day effective date requirement for 
all ``major'' rules, and for this rule to become effective immediately 
upon the date of its publication in the Federal Register.

XV. Catalog of Federal Domestic Assistance Number

    This program is not listed in the Catalog of Federal Domestic 
Assistance.

List of Subjects

20 CFR Part 1

    Administrative practice and procedure, Claims, Government 
employees, Labor, Workers' compensation.

20 CFR Part 30

    Administrative practice and procedure, Cancer, Chemicals, Claims, 
Kidney diseases, Leukemia, Lung diseases, Miners, Radioactive 
materials, Tort claims, Underground mining, Uranium, Workers' 
compensation.

Text of the Rule

0
For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended 
as follows:

SUBCHAPTER A--ORGANIZATION AND PROCEDURES

0
1. Part 1 is revised to read as follows:

PART 1--PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER

Sec.
1.1 Under what authority was the Office of Workers' Compensation 
Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the 
past?

    Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 
6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 
1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-
71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.


Sec.  1.1  Under what authority was the Office of Workers' Compensation 
Programs established?

    The Assistant Secretary of Labor for Employment Standards, by 
authority vested in him by the Secretary of Labor in Secretary's Order 
No. 13-71, 36 FR 8755, established in the Employment Standards 
Administration an Office of Workers' Compensation Programs (OWCP) by 
Employment Standards Order No. 2-74, 39 FR 34722. The Assistant 
Secretary subsequently designated as the head thereof a Director who, 
under the general supervision of the Assistant Secretary, administers 
the programs assigned to OWCP by the Assistant Secretary.


Sec.  1.2  What functions are assigned to OWCP?

    The Assistant Secretary of Labor for Employment Standards has 
delegated authority and assigned responsibility to the Director of OWCP 
for the Department of Labor's programs under the following statutes:
    (a) The Federal Employees' Compensation Act, as amended and 
extended (5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains 
to the Employees' Compensation Appeals Board.

[[Page 33605]]

    (b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
    (c) The War Claims Act (50 U.S.C. App. 2003).
    (d) The Energy Employees Occupational Illness Compensation Program 
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities, 
pursuant to Executive Order 13179 (``Providing Compensation to 
America's Nuclear Weapons Workers'') of December 7, 2000, assigned to 
the Secretary of Health and Human Services, the Secretary of Energy and 
the Attorney General.
    (e) The Longshore and Harbor Workers' Compensation Act, as amended 
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with 
respect to administrative law judges in the Office of Administrative 
Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review 
Board; and activities, pursuant to 33 U.S.C. 941, assigned to the 
Assistant Secretary of Labor for Occupational Safety and Health.
    (f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et 
seq.).


Sec.  1.3  What rules are contained in this chapter?

    The rules in this chapter are those governing the OWCP functions 
under the Federal Employees' Compensation Act, the War Hazards 
Compensation Act, the War Claims Act and the Energy Employees 
Occupational Illness Compensation Program Act of 2000.


Sec.  1.4  Where are other rules concerning OWCP functions found?

    (a) The rules of the OWCP governing its functions under the 
Longshore and Harbor Workers' Compensation Act and its extensions are 
set forth in subchapter A of chapter VI of this title.
    (b) The rules of the OWCP governing its functions under the Black 
Lung Benefits Act program are set forth in subchapter B of chapter VI 
of this title.
    (c) The rules and regulations of the Employees' Compensation 
Appeals Board are set forth in chapter IV of this title.
    (d) The rules and regulations of the Benefits Review Board are set 
forth in chapter VII of this title.


Sec.  1.5  When was the former Bureau of Employees' Compensation 
abolished?

    By Secretary of Labor's Order issued September 23, 1974, 39 FR 
34723, issued concurrently with Employment Standards Order 2-74, 39 FR 
34722, the Secretary revoked the prior Secretary's Order No. 18-67, 32 
FR 12979, which had delegated authority and assigned responsibility for 
the various workers' compensation programs enumerated in Sec.  1.2, 
except the Black Lung Benefits Program and the Energy Employees 
Occupational Illness Compensation Program not then in existence, to the 
Director of the former Bureau of Employees' Compensation.


Sec.  1.6  How were many of OWCP's current functions administered in 
the past?

    (a) Administration of the Federal Employees' Compensation Act and 
the Longshore and Harbor Workers' Compensation Act was initially vested 
in an independent establishment known as the U.S. Employees' 
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the 
Commission was abolished and its functions were transferred to the 
Federal Security Agency to be performed by a newly created Bureau of 
Employees' Compensation within such Agency. By Reorganization Plan No. 
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 
1271), said Bureau was transferred to the Department of Labor (DOL), 
and the authority formerly vested in the Administrator, Federal 
Security Agency, was vested in the Secretary of Labor. By 
Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., 
page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to 
make from time to time such provisions as he shall deem appropriate, 
authorizing the performance of any of his functions by any other 
officer, agency, or employee of the DOL.
    (b) In 1972, two separate organizational units were established 
within the Bureau: an Office of Workmen's Compensation Programs (37 FR 
20533) and an Office of Federal Employees' Compensation (37 FR 22979). 
In 1974, these two units were abolished and one organizational unit, 
the Office of Workers' Compensation Programs, was established in lieu 
of the Bureau of Employees' Compensation (39 FR 34722).

0
2. Subchapter C consisting of Part 30 is revised to read as follows:

SUBCHAPTER C--ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION 
PROGRAM ACT OF 2000

PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES 
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

Subpart A--General Provisions

Introduction

Sec.
30.0 What are the provisions of the EEOICPA, in general?
30.1 What rules govern the administration of the EEOICPA and this 
chapter?
30.2 In general, how have the tasks associated with the 
administration of the EEOICPA claims process been assigned?
30.3 What do these regulations contain?

Definitions

30.5 What are the definitions used in this part?

Information in Program Records

30.10 Are all OWCP records relating to claims filed under the 
EEOICPA considered confidential?
30.11 Who maintains custody and control of claim records?
30.12 What process is used by a person who wants to obtain copies of 
or amend EEOICPA claim records?

Rights and Penalties

30.15 May EEOICPA benefits be assigned, transferred or garnished?
30.16 What penalties may be imposed in connection with a claim under 
the Act?
30.17 Is a beneficiary who defrauds the government in connection 
with a claim for EEOICPA benefits still entitled to those benefits?
Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

Filing Claims for Benefits Under EEOICPA

30.100 In general, how does an employee file an initial claim for 
benefits?
30.101 In general, how is a survivor's claim filed?
30.102 In general, how does an employee file a claim for additional 
impairment or wage-loss under Part E of EEOICPA?
30.103 How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

Verification of Alleged Employment

30.105 What must DOE do after an employee or survivor files a claim?
30.106 Can OWCP request employment verification from other sources?

Evidence and Burden of Proof

30.110 Who is entitled to compensation under the Act?
30.111 What is the claimant's responsibility with respect to burden 
of proof, production of documents, presumptions, and affidavits?
30.112 What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?
30.113 What are the requirements for written medical documentation, 
contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish a covered 
medical condition and how will that evidence be evaluated?

Special Procedures for Certain Radiogenic Cancer Claims

30.115 For those radiogenic cancer claims that do not seek benefits 
under Part B of the Act pursuant to the Special Exposure

[[Page 33606]]

Cohort provisions, what will OWCP do once it determines that an 
employee contracted cancer?
Subpart C--Eligibility Criteria

General Provisions

30.200 What is the scope of this subpart?

Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
Under Part B of EEOICPA

30.205 What are the criteria for eligibility for benefits relating 
to beryllium illnesses covered under Part B of EEOICPA?
30.206 How does a claimant prove that the employee was a ``covered 
beryllium employee'' exposed to beryllium dust, particles or vapor 
in the performance of duty?
30.207 How does a claimant prove a diagnosis of a beryllium disease 
covered under Part B?

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E of EEOICPA

30.210 What are the criteria for eligibility for benefits relating 
to radiogenic cancer?
30.211 How does a claimant establish that the employee has or had 
contracted cancer?
30.212 How does a claimant establish that the employee contracted 
cancer after beginning employment at a DOE facility, an atomic 
weapons employer facility or a RECA section 5 facility?
30.213 How does a claimant establish that the radiogenic cancer was 
at least as likely as not related to employment at the DOE facility, 
the atomic weapons employer facility, or the RECA section 5 
facility?
30.214 How does a claimant establish that the employee is a member 
of the Special Exposure Cohort?
30.215 How does a claimant establish that the employee has sustained 
an injury, illness, impairment or disease as a consequence of a 
diagnosed cancer?

Eligibility Criteria for Claims Relating to Chronic Silicosis Under 
Part B of EEOICPA

30.220 What are the criteria for eligibility for benefits relating 
to chronic silicosis?
30.221 How does a claimant prove exposure to silica in the 
performance of duty?
30.222 How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential 
injury, illness, impairment or disease?

Eligibility Criteria for Certain Uranium Employees Under Part B of 
EEOICPA

30.225 What are the criteria for eligibility for benefits under Part 
B of EEOICPA for certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee 
has sustained a consequential injury, illness, impairment or 
disease?

Eligibility Criteria for Other Claims Under Part E of EEOICPA

30.230 What are the criteria necessary to establish that an employee 
contracted a covered illness under Part E of EEOICPA?
30.231 How does a claimant prove employment-related exposure to a 
toxic substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?
Subpart D--Adjudicatory Process
30.300 What process will OWCP use to decide claims for entitlement 
and to provide for administrative review of those decisions?
30.301 May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?
30.302 Who pays the costs associated with subpoenas?
30.303 What information may OWCP request in connection with a claim 
under Part E of EEOICPA?

Recommended Decisions on Claims

30.305 How does OWCP determine entitlement to EEOICPA compensation?
30.306 What does the recommended decision contain?
30.307 To whom is the recommended decision sent?

Hearings and Final Decisions on Claims

30.310 What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?
30.311 What happens if the claimant does not object to the 
recommended decision or request a hearing within 60 days?
30.312 What will the FAB do if the claimant objects to the 
recommended decision but does not request a hearing?
30.313 How is a review of the written record conducted?
30.314 How is a hearing conducted?
30.315 May a claimant postpone a hearing?
30.316 How does the FAB issue a final decision on a claim?
30.317 Can the FAB request a further response from the claimant or 
return a claim to the district office?
30.318 Can the FAB consider objections to HHS's reconstruction of a 
radiation dose or to the guidelines OWCP uses to determine if a 
claimed cancer was at least as likely as not related to employment?
30.319 May a claimant request reconsideration of a final decision of 
the FAB?

Reopening Claims

30.320 Can a claim be reopened after the FAB has issued a final 
decision?
Subpart E--Medical and Related Benefits

Medical Treatment and Related Issues

30.400 What are the basic rules for obtaining medical treatment?
30.401 What are the special rules for the services of chiropractors?
30.402 What are the special rules for the services of clinical 
psychologists?
30.403 Will OWCP pay for the services of an attendant?
30.404 Will OWCP pay for transportation to obtain medical treatment?
30.405 After selecting a treating physician, may an employee choose 
to be treated by another physician instead?
30.406 Are there any exceptions to these procedures for obtaining 
medical care?

Directed Medical Examinations

30.410 Can OWCP require an employee to be examined by another 
physician?
30.411 What happens if the opinion of the physician selected by OWCP 
differs from the opinion of the physician selected by the employee?
30.412 Who pays for second opinion and referee examinations?

Medical Reports

30.415 What are the requirements for medical reports?
30.416 How and when should medical reports be submitted?
30.417 What additional medical information may OWCP require to 
support continuing payment of benefits?

Medical Bills

30.420 How should medical bills and reimbursement requests be 
submitted?
30.421 What are the time frames for submitting bills and 
reimbursement requests?
30.422 If an employee is only partially reimbursed for a medical 
expense, must the provider refund the balance of the amount paid to 
the employee?
Subpart F--Survivors; Payments and Offsets; Overpayments

Survivors

30.500 What special statutory definitions apply to survivors under 
EEOICPA?
30.501 What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under EEOICPA?
30.502 When is entitlement for survivors determined for purposes of 
EEOICPA?

Payment of Claims and Offset for Certain Payments

30.505 What procedures will OWCP follow before it pays any 
compensation?
30.506 To whom and in what manner will OWCP pay compensation?
30.507 What compensation will be provided to covered Part B 
employees who only establish beryllium sensitivity under Part B of 
EEOICPA?
30.508 What is beryllium sensitivity monitoring?
30.509 Under what circumstances may a survivor claiming under Part E 
of the Act choose to receive the benefits that would otherwise be 
payable to a covered Part E employee who is deceased?

Overpayments

30.510 How does OWCP notify an individual of a payment made on a 
claim?
30.511 What is an ``overpayment'' for purposes of EEOICPA?
30.512 What does OWCP do when an overpayment is identified?

[[Page 33607]]

30.513 Under what circumstances may OWCP waive recovery of an 
overpayment?
30.514 If OWCP finds that the recipient of an overpayment was not at 
fault, what criteria are used to decide whether to waive recovery of 
it?
30.515 Is a recipient responsible for an overpayment that resulted 
from an error made by OWCP?
30.516 Under what circumstances would recovery of an overpayment 
defeat the purpose of the Act?
30.517 Under what circumstances would recovery of an overpayment be 
against equity and good conscience?
30.518 Can OWCP require the recipient of the overpayment to submit 
additional financial information?
30.519 How does OWCP communicate its final decision concerning 
recovery of an overpayment?
30.520 How are overpayments collected?
Subpart G--Special Provisions

Representation

30.600 May a claimant designate a representative?
30.601 Who may serve as a representative?
30.602 Who is responsible for paying the representative's fee?
30.603 Are there any limitations on what the representative may 
charge the claimant for his or her services?

Third Party Liability

30.605 What rights does the United States have upon payment of 
compensation under EEOICPA?
30.606 Under what circumstances must a recovery of money or other 
property in connection with an illness for which benefits are 
payable under EEOICPA be reported to OWCP?
30.607 How is a structured settlement (that is, a settlement 
providing for receipt of funds over a specified period of time) 
treated for purposes of reporting the recovery?
30.608 How does the United States calculate the amount to which it 
is subrogated?
30.609 Is a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered by 
EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to a covered Part B employee, a covered Part E 
employee or an eligible surviving beneficiary as a result of an 
insurance policy which the employee or eligible surviving 
beneficiary has purchased a recovery that must be reported to OWCP?
30.611 If a settlement or judgment is received for more than one 
medical condition, can the amount paid on a single EEOICPA claim be 
attributed to different conditions for purposes of calculating the 
amount to which the United States is subrogated?

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons 
Employers

30.615 What type of tort suits filed against beryllium vendors or 
atomic weapons employers may disqualify certain claimants from 
receiving benefits under Part B of EEOICPA?
30.616 What happens if this type of tort suit was filed prior to 
October 30, 2000?
30.617 What happens if this type of tort suit was filed during the 
period from October 30, 2000 through December 28, 2001?
30.618 What happens if this type of tort suit was filed after 
December 28, 2001?
30.619 Do all the parties to this type of tort suit have to take 
these actions?
30.620 How will OWCP ascertain whether a claimant filed this type of 
tort suit and if he or she has been disqualified from receiving any 
benefits under Part B of EEOICPA?

Coordination of Part E Benefits With State Workers' Compensation 
Benefits

30.625 What does ``coordination of benefits'' mean under Part E of 
EEOICPA?
30.626 How will OWCP coordinate compensation payable under Part E of 
EEOICPA with benefits from state workers' compensation programs?
30.627 Under what circumstances will OWCP waive the statutory 
requirement to coordinate these benefits?
Subpart H--Information for Medical Providers

Medical Records and Bills

30.700 What kind of medical records must providers keep?
30.701 How are medical bills to be submitted?
30.702 How should an employee prepare and submit requests for 
reimbursement for medical expenses, transportation costs, loss of 
wages, and incidental expenses?
30.703 What are the time limitations on OWCP's payment of bills?

Medical Fee Schedule

30.705 What services are covered by the OWCP fee schedule?
30.706 How are the maximum fees defined?
30.707 How are payments for particular services calculated?
30.708 Does the fee schedule apply to every kind of procedure?
30.709 How are payments for medicinal drugs determined?
30.710 How are payments for inpatient medical services determined?
30.711 When and how are fees reduced?
30.712 If OWCP reduces a fee, may a provider request reconsideration 
of the reduction?
30.713 If OWCP reduces a fee, may a provider bill the employee for 
the balance?

Exclusion of Providers

30.715 What are the grounds for excluding a provider for payment 
under this part?
30.716 What will cause OWCP to automatically exclude a physician or 
other provider of medical services and supplies?
30.717 When are OWCP's exclusion procedures initiated?
30.718 How is a provider notified of OWCP's intent to exclude him or 
her?
30.719 What requirements must the provider's reply and OWCP's 
decision meet?
30.720 How can an excluded provider request a hearing?
30.721 How are hearings assigned and scheduled?
30.722 How are subpoenas or advisory opinions obtained?
30.723 How will the administrative law judge conduct the hearing and 
issue the recommended decision?
30.724 How can a party request review by OWCP of the administrative 
law judge's recommended decision?
30.725 What are the effects of non-automatic exclusion?
30.726 How can an excluded provider be reinstated?
Subpart I--Wage-Loss Determinations Under Part E of EEOICPA

General Provisions

30.800 What types of wage-loss are compensable under Part E of 
EEOICPA?
30.801 What special definitions does OWCP use in connection with 
Part E wage-loss determinations?

Evidence of Wage-Loss

30.805 What evidence does OWCP use to determine a covered Part E 
employee's average annual wage and whether he or she experienced 
compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence in support of a 
different determination of average annual wage and/or wage-loss than 
that found by OWCP?

Determinations of Average Annual Wage and Percentages of Loss

30.810 How will OWCP calculate the average annual wage of a covered 
Part E employee?
30.811 How will OWCP calculate the duration and extent of a covered 
Part E employee's initial period of compensable wage-loss?
30.812 May a covered Part E employee claim for subsequent periods of 
compensable wage-loss?

Special Rules for Certain Survivor Claims Under Part E of EEOICPA

30.815 Are there special rules that OWCP will use to determine the 
extent of a deceased covered Part E employee's compensable wage-
loss?
Subpart J--Impairment Benefits Under Part E of EEOICPA

General Provisions

30.900 Who can receive impairment benefits under Part E of EEOICPA?
30.901 How does OWCP determine the extent of an employee's 
impairment that is due to a covered illness contracted through 
exposure to a toxic substance at a DOE facility or a RECA section 5 
facility, as appropriate?
30.902 How will OWCP calculate the amount of the award of impairment 
benefits that is payable under Part E?

[[Page 33608]]

Medical Evidence of Impairment

30.905 How may an impairment evaluation be obtained?
30.906 Who will pay for an impairment evaluation?
30.907 Can an impairment evaluation obtained by OWCP be challenged 
prior to issuance of the recommended decision?
30.908 How will the FAB evaluate new medical evidence submitted to 
challenge the impairment determination in the recommended decision?

Ratable Medical Impairments

30.910 Will an impairment that cannot be assigned a numerical 
percentage using the AMA's Guides be included in the impairment 
rating?
30.911 Does maximum medical improvement always have to be reached 
for an impairment to be included in the impairment rating?
30.912 Can a covered Part E employee receive benefits for additional 
impairment following an award of such benefits by OWCP?

    Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 
7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 4-
2001, 66 FR 29656.

Subpart A--General Provisions

Introduction


Sec.  30.0  What are the provisions of the EEOICPA, in general?

    Part B of the Energy Employees Occupational Illness Compensation 
Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et 
seq., provides for the payment of compensation benefits to covered Part 
B employees and, where applicable, survivors of such employees, of the 
United States Department of Energy (DOE), its predecessor agencies and 
certain of its contractors and subcontractors. Part B also provides for 
the payment of supplemental compensation benefits to other covered Part 
B employees who have already been found eligible for benefits under 
section 5 of the Radiation Exposure Compensation Act, as amended 
(RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such 
persons. Part E of the Act provides for the payment of compensation 
benefits to covered Part E employees and, where applicable, survivors 
of such employees. The regulations in this part describe the rules 
governing filing, processing, and paying claims for benefits under both 
Part B and Part E of EEOICPA.
    (a) Part B of EEOICPA provides for the payment of either lump-sum 
monetary compensation for the disability of a covered Part B employee 
due to an occupational illness or for monitoring for beryllium 
sensitivity, as well as for medical and related benefits for such 
illness. Part B also provides for the payment of monetary compensation 
for the disability of a covered Part B employee to specified survivors 
if the employee is deceased at the time of payment.
    (b) Part E of EEOICPA provides for the payment of monetary 
compensation for the established wage-loss and/or impairment of a 
covered Part E employee due to a covered illness, and for medical and 
related benefits for such covered illness. Part E also provides for the 
payment of monetary compensation for the death (and established wage-
loss, where applicable) of a covered Part E employee to specified 
survivors if the covered Part E employee is deceased at the time of 
payment.
    (c) All types of benefits and conditions of eligibility listed in 
this section are subject to the provisions of EEOICPA and this part.


Sec.  30.1  What rules govern the administration of the EEOICPA and 
this chapter?

    In accordance with EEOICPA, Executive Order 13179 and Secretary's 
Order No. 4-2001, the primary responsibility for administering the Act, 
except for those activities assigned to the Secretary of Health and 
Human Services, the Secretary of Energy and the Attorney General, has 
been delegated to the Assistant Secretary of Labor for Employment 
Standards. The Assistant Secretary, in turn, has delegated the 
responsibility for administering the Act to the Director of the Office 
of Workers' Compensation Programs (OWCP). Except as otherwise provided 
by law, the Director of OWCP and his or her designees have the 
exclusive authority to administer, interpret and enforce the provisions 
of the Act.


Sec.  30.2  In general, how have the tasks associated with the 
administration of the EEOICPA claims process been assigned?

    (a) In E.O. 13179, the President assigned the tasks associated with 
administration of the EEOICPA claims process among the Secretaries of 
Labor, Health and Human Services and Energy, and the Attorney General. 
In light of the fact that the Secretary of Labor has been assigned 
primary responsibility for administering the EEOICPA, almost the entire 
claims process is within the exclusive control of OWCP. This means that 
all claimants file their claims with OWCP, and OWCP is responsible for 
granting or denying compensation under the Act (see Sec. Sec.  30.100 
through 30.102). OWCP also provides assistance to claimants and 
potential claimants by providing information regarding eligibility and 
other program requirements, including information on completing claim 
forms and the types and availability of medical testing and diagnostic 
services related to occupational illnesses under Part B of the Act and 
covered illnesses under Part E of the Act. In addition, OWCP provides 
an administrative review process for claimants who disagree with its 
recommended and final adverse decisions on claims of entitlement (see 
Sec. Sec.  30.300 through 30.320).
    (b) However, HHS has exclusive control of the portion of the claims 
process under which it provides reconstructed doses for certain 
radiogenic cancer claims (see Sec.  30.115). HHS also has exclusive 
control of the process for designating classes of employees to be added 
to the Special Exposure Cohort under Part B of the Act, and has 
promulgated regulations governing that process at 42 CFR part 83. 
Finally, HHS has promulgated regulations at 42 CFR part 81 that set out 
guidelines that OWCP follows when it assesses the compensability of an 
employee's radiogenic cancer (see Sec.  30.213). DOE and DOJ must, 
among other things, notify potential claimants and submit evidence that 
OWCP deems necessary for its adjudication of claims under EEOICPA (see 
Sec. Sec.  30.105, 30.112, 30.206, 30.212 and 30.221).


Sec.  30.3  What do these regulations contain?

    This part 30 sets forth the regulations governing administration of 
all claims that are filed with OWCP, except to the extent specified in 
certain provisions. Its provisions are intended to assist persons 
seeking benefits under EEOICPA, as well as personnel in the various 
federal agencies and DOL who process claims filed under EEOICPA or who 
perform administrative functions with respect to EEOICPA. The various 
subparts of this part contain the following:
    (a) Subpart A: The general statutory and administrative framework 
for processing claims under both Parts B and E of EEOICPA. It contains 
a statement of purpose and scope, together with definitions of terms, 
information regarding the disclosure of OWCP records, and a description 
of rights and penalties involving EEOICPA claims, including convictions 
for fraud.
    (b) Subpart B: The rules for filing claims for entitlement under 
EEOICPA. It also addresses general standards regarding necessary 
evidence and the burden of proof, descriptions of basic forms and 
special procedures for certain cancer claims.

[[Page 33609]]

    (c) Subpart C: The eligibility criteria for occupational illnesses 
and covered illnesses compensable under Parts B and E of EEOICPA.
    (d) Subpart D: The rules governing the adjudication process leading 
to recommended and final decisions on claims for entitlement filed 
under Parts B and E of EEOICPA. It also describes the hearing and 
reopening processes.
    (e) Subpart E: The rules governing medical care, second opinion and 
referee medical examinations directed by OWCP as part of its 
adjudication of entitlement, and medical reports and records in 
general. It also addresses the kinds of medical treatment that may be 
authorized and how medical bills are paid.
    (f) Subpart F: The rules relating to the payment of monetary 
compensation available under Parts B and E of EEOICPA. It includes 
provisions on medical monitoring for beryllium sensitivity, on the 
identification, processing and recovery of overpayments of 
compensation, and on the maximum aggregate amount of compensation 
payable under Part E.
    (g) Subpart G: The rules concerning the representation of claimants 
in connection with the administrative adjudication of claims before 
OWCP, subrogation of the United States, the effect of tort suits 
against beryllium vendors and atomic weapons employers, and the 
coordination of benefits under Part E of EEOICPA with state workers' 
compensation benefits for the same covered illness.
    (h) Subpart H: Information for medical providers. It includes rules 
for medical reports, medical bills, and the OWCP medical fee schedule, 
as well as the provisions for exclusion of medical providers.
    (i) Subpart I: The rules relating to the adjudication of alleged 
periods of wage-loss of covered Part E employees. It also includes 
provisions on the use by OWCP of Social Security Administration 
earnings information and certain medical evidence to establish 
compensable wage-loss.
    (j) Subpart J: The rules relating to the adjudication of alleged 
impairment due to the exposure of covered Part E employees to toxic 
substances. It includes provisions relating to the medical evaluation 
of ratable impairments, the rating of progressive conditions, 
apportionment, and qualifications of physicians.

Definitions


Sec.  30.5  What are the definitions used in this part?

    (a) Act or EEOICPA means the Energy Employees Occupational Illness 
Compensation Program Act of 2000, as amended (42 U.S.C. 7384 et seq.).
    (b) Atomic weapon means any device utilizing atomic energy, 
exclusive of the means for transporting or propelling the device (where 
such means is a separable and divisible part of the device), the 
principle purpose of which is for use as, or for development of, a 
weapon, a weapon prototype, or a weapon test device.
    (c) Atomic weapons employee means:
    (1) An individual employed by an atomic weapons employer during a 
period when the employer was processing or producing, for the use by 
the United States, material that emitted radiation and was used in the 
production of an atomic weapon, excluding uranium mining and milling; 
or
    (2)(i) An individual employed at a facility that the National 
Institute for Occupational Safety and Health reported had a potential 
for significant residual contamination outside of the period described 
in paragraph (c)(1) of this section;
    (ii) By the atomic weapons employer that owned the facility 
referred to in paragraph (c)(2)(i) of this section, or a subsequent 
owner or operator of such facility; and
    (iii) During a period reported by the National Institute for 
Occupational Safety and Health (NIOSH), in its report dated October 
2003 and titled ``Report on Residual Radioactive and Beryllium 
Contamination at Atomic Weapons Employer Facilities and Beryllium 
Vendor Facilities,'' or any update to that report, to have a potential 
for significant residual radioactive contamination.
    (d) Atomic weapons employer means any entity, other than the United 
States, that:
    (1) Processed or produced, for use by the United States, material 
that emitted radiation and was used in the production of an atomic 
weapon, excluding uranium mining and milling; and
    (2) Is designated by the Secretary of Energy as an atomic weapons 
employer for purposes of the compensation program.
    (e) Atomic weapons employer facility means any facility, owned by 
an atomic weapons employer, that:
    (1) Is or was used to process or produce, for use by the United 
States, material that emitted radiation and was used in the production 
of an atomic weapon, excluding uranium mining or milling; and
    (2) Is designated as such in the list periodically published in the 
Federal Register by DOE.
    (f) Attorney General means the Attorney General of the United 
States or the United States Department of Justice (DOJ).
    (g) Benefit or Compensation means the money the Department pays to 
or on behalf of either a covered Part B employee under Part B, or a 
covered Part E employee under Part E, from the Energy Employees 
Occupational Illness Compensation Fund. However, the term 
``compensation'' used in section 7385f(b) of EEOICPA (restricting 
entitlement to only one payment of compensation under Part B) means 
only the payments specified in section 7384s(a)(1) and in section 
7384u(a). Except as used in section 7385f(b), these two terms also 
include any other amounts paid out of the Fund for such things as 
medical treatment, monitoring, examinations, services, appliances and 
supplies as well as for transportation and expenses incident to the 
securing of such medical treatment, monitoring, examinations, services, 
appliances, and supplies.
    (h) Beryllium sensitization or sensitivity means that the 
individual has an abnormal beryllium lymphocyte proliferation test 
(LPT) performed on either blood or lung lavage cells.
    (i) Beryllium vendor means the specific corporations and named 
predecessor corporations listed in section 7384l(6) of the Act and any 
of the facilities designated as such in the list periodically published 
in the Federal Register by DOE.
    (j) Chronic silicosis means a non-malignant lung disease if:
    (1) The initial occupational exposure to silica dust preceded the 
onset of silicosis by at least 10 years; and
    (2) A written diagnosis of silicosis is made by a medical doctor 
and is accompanied by:
    (i) A chest radiograph, interpreted by an individual certified by 
the National Institute for Occupational Safety and Health as a B 
reader, classifying the existence of pneumoconioses of category 1/0 or 
higher; or
    (ii) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (iii) Lung biopsy findings consistent with silicosis.
    (k) Claim means a written assertion to OWCP of an individual's 
entitlement to benefits under EEOICPA, submitted in a manner authorized 
by this part.
    (l) Claimant means the individual who is alleged to satisfy the 
criteria for compensation under the Act.
    (m) Compensation fund or fund means the fund established on the 
books of the Treasury for payment of benefits and compensation under 
the Act.

[[Page 33610]]

    (n) Contemporaneous record means any document created at or around 
the time of the event that is recorded in the document.
    (o) Covered beryllium illness means any of the following:
    (1) Beryllium sensitivity as established by an abnormal LPT 
performed on either blood or lung lavage cells.
    (2) Established chronic beryllium disease (see Sec.  30.207(c)).
    (3) Any injury, illness, impairment, or disability sustained as a 
consequence of a covered beryllium illness referred to in paragraphs 
(o)(1) or (2) of this section.
    (p) Covered Part E employee means, under Part E of the Act, a 
Department of Energy contractor employee or a RECA section 5 uranium 
worker who has been determined by OWCP to have contracted a covered 
illness (see paragraph (r) of this section) through exposure at a 
Department of Energy facility or a RECA section 5 facility, as 
appropriate.
    (q) Covered Part B employee means, under Part B of the Act, a 
covered beryllium employee (see Sec.  30.205), a covered employee with 
cancer (see Sec.  30.210(a)), a covered employee with chronic silicosis 
(see Sec.  30.220), or a covered uranium employee (see paragraph (s) of 
this section).
    (r) Covered illness means, under Part E of the Act relating to 
exposures at a DOE facility or a RECA section 5 facility, an illness or 
death resulting from exposure to a toxic substance.
    (s) Covered uranium employee means, under Part B of the Act, an 
individual who has been determined by DOJ to be entitled to an award 
under section 5 of the RECA, whether or not the individual was the 
employee or the deceased employee's survivor.
    (t) Current or former employee as defined in 5 U.S.C. 8101(1) as 
used in Sec.  30.205(a)(1) means an individual who fits within one of 
the following listed groups:
    (1) A civil officer or employee in any branch of the Government of 
the United States, including an officer or employee of an 
instrumentality wholly owned by the United States;
    (2) An individual rendering personal service to the United States 
similar to the service of a civil officer or employee of the United 
States, without pay or for nominal pay, when a statute authorizes the 
acceptance or use of the service, or authorizes payment of travel or 
other expenses of the individual;
    (3) An individual, other than an independent contractor or 
individual employed by an independent contractor, employed on the 
Menominee Indian Reservation in Wisconsin in operations conducted under 
a statute relating to tribal timber and logging operations on that 
reservation;
    (4) An individual appointed to a position on the office staff of a 
former President; or
    (5) An individual selected and serving as a Federal petit or grand 
juror.
    (u) Department means the United States Department of Labor (DOL).
    (v) Department of Energy or DOE includes the predecessor agencies 
of the DOE, including the Manhattan Engineering District.
    (w) Department of Energy contractor employee means any of the 
following:
    (1) An individual who is or was in residence at a DOE facility as a 
researcher for one or more periods aggregating at least 24 months.
    (2) An individual who is or was employed at a DOE facility by:
    (i) An entity that contracted with the DOE to provide management 
and operating, management and integration, or environmental remediation 
at the facility; or
    (ii) A contractor or subcontractor that provided services, 
including construction and maintenance, at the facility.
    (x)(1) Department of Energy facility means, as determined by the 
Director of OWCP, any building, structure, or premise, including the 
grounds upon which such building, structure, or premise is located:
    (i) In which operations are, or have been, conducted by, or on 
behalf of, the DOE (except for buildings, structures, premises, 
grounds, or operations covered by E.O. 12344, dated February 1, 1982, 
pertaining to the Naval Nuclear Propulsion Program); and
    (ii) With regard to which the DOE has or had:
    (A) A proprietary interest; or
    (B) Entered into a contract with an entity to provide management 
and operation, management and integration, environmental remediation 
services, construction, or maintenance services.
    (2) DOL hereby adopts the list of facilities established by the 
Department of Energy that is in effect on the date of the publication 
of this Interim Final Rule. DOL will periodically update this list as 
it deems appropriate in its sole discretion by publishing a revised 
list of covered facilities in the Federal Register.
    (y) Disability means, for purposes of determining entitlement to 
payment of Part B benefits under section 7384s(a)(1) of the Act, having 
been determined by OWCP to have or have had established chronic 
beryllium disease, cancer, or chronic silicosis.
    (z) Eligible surviving beneficiary means any individual who is 
entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of 
the Act to receive a payment on behalf of a deceased covered Part B 
employee or a deceased covered Part E employee.
    (aa) Employee means either a current or former employee.
    (bb) Occupational illness means, under Part B of the Act, a covered 
beryllium illness, cancer sustained in the performance of duty as 
defined in Sec.  30.210(a), specified cancer, chronic silicosis, or an 
illness for which DOJ has awarded compensation under section 5 of RECA.
    (cc) OWCP means the Office of Workers' Compensation Programs, 
United States Department of Labor. One of the four divisions of OWCP is 
the Division of Energy Employees Occupational Illness Compensation.
    (dd) Physician includes surgeons, podiatrists, dentists, clinical 
psychologists, optometrists, chiropractors, and osteopathic 
practitioners within the scope of their practice as defined by state 
law. The term ``physician'' includes chiropractors only to the extent 
that their reimbursable services are limited to treatment consisting of 
manual manipulation of the spine to correct a subluxation as 
demonstrated by x-ray to exist.
    (ee) Qualified physician means any physician who has not been 
excluded under the provisions of subpart H of this part. Except as 
otherwise provided by regulation, a qualified physician shall be deemed 
to be designated or approved by OWCP.
    (ff) Specified cancer (as defined in section 4(b)(2) of RECA and in 
the EEOICPA) means:
    (1) Leukemia (other than chronic lymphocytic leukemia) provided 
that the onset of the disease was at least 2 years after first 
exposure;
    (2) Lung cancer (other than in situ lung cancer that is discovered 
during or after a post-mortem exam);
    (3) Bone cancer;
    (4) Renal cancers; or
    (5) The following diseases, provided onset was at least 5 years 
after first exposure:
    (i) Multiple myeloma;
    (ii) Lymphomas (other than Hodgkin's disease); and
    (iii) Primary cancer of the:
    (A) Thyroid;
    (B) Male or female breast;
    (C) Esophagus;
    (D) Stomach;
    (E) Pharynx;
    (F) Small intestine;
    (G) Pancreas;

[[Page 33611]]

    (H) Bile ducts;
    (I) Gall bladder;
    (J) Salivary gland;
    (K) Urinary bladder;
    (L) Brain;
    (M) Colon;
    (N) Ovary; or
    (O) Liver (except if cirrhosis or hepatitis B is indicated).
    (6) The specified diseases designated in this section mean the 
physiological condition or conditions that are recognized by the 
National Cancer Institute under those names or nomenclature, or under 
any previously accepted or commonly used names or nomenclature.
    (gg) Survivor means:
    (1) For claims under Part B of the Act, and subject to paragraph 
(gg)(3) of this section, a surviving spouse, child, parent, grandchild 
and grandparent of a deceased covered Part B employee.
    (2) For claims under Part E of the Act, and subject to paragraph 
(gg)(3) of this section, a surviving spouse and child of a deceased 
covered Part E employee.
    (3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) of 
this section do not include any individuals not living as of the time 
OWCP makes a lump-sum payment or payments to an eligible surviving 
beneficiary or beneficiaries.
    (hh) Time of injury means:
    (1) In regard to a claim arising out of exposure to beryllium or 
silica, the last date on which a covered Part B employee was exposed to 
such substance in the performance of duty in accordance with sections 
7384n(a) or 7384r(c) of the Act; or
    (2) In regard to a claim arising out of exposure to radiation under 
Part B, the last date on which a covered Part B employee was exposed to 
radiation in the performance of duty in accordance with section 
7384n(b) of the Act or, in the case of a member of the Special Exposure 
Cohort, the last date on which the member of the Special Exposure 
Cohort was employed at the Department of Energy facility or the atomic 
weapons employer facility at which the member was exposed to radiation; 
or
    (3) In regard to a claim arising out of exposure to a toxic 
substance, the last date on which a covered Part E employee was 
employed at the Department of Energy facility or RECA section 5 
facility, as appropriate, at which the exposure took place.
    (ii) Toxic substance means any material that has the potential to 
cause illness or death because of its radioactive, chemical, or 
biological nature.
    (jj) Workday means a single workshift whether or not it occurred on 
more than one calendar day.

Information in Program Records


Sec.  30.10  Are all OWCP records relating to claims filed under the 
EEOICPA considered confidential?

    All OWCP records relating to claims for benefits under the EEOICPA 
are considered confidential and may not be released, inspected, copied 
or otherwise disclosed except as provided in the Freedom of Information 
Act and the Privacy Act of 1974.


Sec.  30.11  Who maintains custody and control of claim records?

    All OWCP records relating to claims for benefits filed under the 
Act are covered by the Privacy Act system of records entitled DOL/ESA-
49 (Office of Workers' Compensation Programs, Energy Employees 
Occupational Illness Compensation Program Act File). This system of 
records is maintained by and under the control of OWCP, and, as such, 
all records covered by DOL/ESA-49 are official records of OWCP. The 
protection, release, inspection and copying of records covered by DOL/
ESA-49 shall be accomplished in accordance with the rules, guidelines 
and provisions of this part, as well as those contained in 29 CFR parts 
70 and 71, and with the notice of the system of records and routine 
uses published in the Federal Register. All questions relating to 
access, disclosure, and/or amendment of claims records maintained by 
OWCP are to be resolved in accordance with this section.


Sec.  30.12  What process is used by a person who wants to obtain 
copies of or amend EEOICPA claim records?

    (a) A claimant seeking copies of his or her official EEOICPA file 
should address a request to the District Director of the OWCP district 
office having custody of the file.
    (b) Any request to amend a record covered by DOL/ESA-49 should be 
directed to the district office having custody of the official file.
    (c) Any administrative appeal taken from a denial issued by OWCP 
under this section shall be filed with the Solicitor of Labor in 
accordance with 29 CFR 71.7 and 71.9.

Rights and Penalties


Sec.  30.15  May EEOICPA benefits be assigned, transferred or 
garnished?

    (a) Pursuant to section 7385f(a) of the Act, no claim for EEOICPA 
benefits may be assigned or transferred.
    (b) Provisions of the Social Security Act (42 U.S.C. 659) and 
regulations issued by the Office of Personnel Management at 5 CFR part 
581 permit the garnishment of payments of EEOICPA monetary benefits to 
collect overdue alimony and child support. A request to garnish a 
payment for either of these purposes should be submitted to the 
district office that is handling the EEOICPA claim, and must be 
accompanied by a copy of the pertinent state agency or court order.


Sec.  30.16  What penalties may be imposed in connection with a claim 
under the Act?

    (a) Other statutory provisions make it a crime to file a false or 
fraudulent claim or statement with the federal government in connection 
with a claim under the Act. Included among these provisions is 18 
U.S.C. 1001. Enforcement of criminal provisions that may apply to 
claims under the Act is within the jurisdiction of the Department of 
Justice.
    (b) In addition, administrative proceedings may be initiated under 
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801 et 
seq., to impose civil penalties and assessments against persons or 
entities who make, submit or present, or cause to be made, submitted or 
presented, false, fictitious or fraudulent claims or written statements 
to OWCP in connection with a claim under EEOICPA. The Department's 
regulations implementing PFCRA are found at 29 CFR part 22.


Sec.  30.17  Is a beneficiary who defrauds the government in connection 
with a claim for EEOICPA benefits still entitled to those benefits?

    When a beneficiary either pleads guilty to or is found guilty on 
either Federal or State criminal charges of defrauding the federal or a 
state government in connection with a claim for benefits under the Act 
or any other federal or state workers' compensation law, the 
beneficiary forfeits (effective the date either the guilty plea is 
accepted or a verdict of guilty is returned after trial) any 
entitlement to any further benefits for any injury, illness or death 
covered by this part for which the time of injury was on or before the 
date of such guilty plea or verdict. Any subsequent change in or 
recurrence of the beneficiary's medical condition does not affect 
termination of entitlement under this section.

Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

Filing Claims for Benefits Under EEOICPA


Sec.  30.100  In general, how does an employee file an initial claim 
for benefits?

    (a) To claim benefits under EEOICPA, an employee must file a claim 
in writing. Form EE-1 should be used for

[[Page 33612]]

this purpose, but any written communication that requests benefits 
under EEOICPA will be considered a claim. It will, however, be 
necessary for an employee to submit a Form EE-1 for OWCP to fully 
develop the claim. Copies of Form EE-1 may be obtained from OWCP or on 
the Internet at www.dol.gov/esa/regs/ compliance/owcp/eeoicp/main.htm. 
The employee's claim must be filed with OWCP, but another person may do 
so on the employee's behalf.
    (b) The employee may choose, at his or her own option, to file for 
benefits for only certain conditions that are potentially compensable 
under the Act (e.g., the employee may not want to claim for an 
occupational illness or a covered illness for which a payment has been 
received that would necessitate an offset of EEOICPA benefits under the 
provisions of Sec.  30.505(b)). The employee may withdraw his or her 
claim by so requesting in writing to OWCP at any time before OWCP 
determines his or her eligibility for benefits.
    (c) Except as provided in paragraph (d) of this section, a claim is 
considered to be ``filed'' on the date that the employee mails his or 
her claim to OWCP, as determined by postmark, or on the date that the 
claim is received by OWCP, whichever is the earliest determinable date. 
However, in no event will a claim under Part B of EEOICPA be considered 
to be ``filed'' earlier than July 31, 2001, nor will a claim under Part 
E of EEOICPA be considered to be ``filed'' earlier than October 30, 
2000.
    (1) The employee, or the person filing the claim on behalf of the 
employee, shall affirm that the information provided on the Form EE-1 
is true, and must inform OWCP of any subsequent changes to that 
information.
    (2) Except for a covered uranium employee filing a claim under Part 
B of the Act, the employee is responsible for submitting with his or 
her claim, or arranging for the submission of, medical evidence to OWCP 
that establishes that he or she sustained an occupational illness and/
or a covered illness. This required medical evidence is described in 
Sec.  30.114 and does not refer to mere recitations of symptoms the 
employee experienced that the employee believes indicate that he or she 
sustained an occupational illness or a covered illness.
    (d) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the employee mailed his or her claim 
to DOE, as determined by postmark, or on the date that the claim was 
received by DOE, whichever is the earliest determinable date. However, 
in no event will a claim referred to in this paragraph be considered to 
be ``filed'' earlier than October 30, 2000.


Sec.  30.101  In general, how is a survivor's claim filed?

    (a) A survivor of an employee who sustained an occupational illness 
or a covered illness must file a claim for compensation in writing. 
Form EE-2 should be used for this purpose, but any written 
communication that requests survivor benefits under the Act will be 
considered a claim. It will, however, be necessary for a survivor to 
submit a Form EE-2 for OWCP to fully develop the claim. Copies of Form 
EE-2 may be obtained from OWCP or on the Internet at www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. The survivor's claim must be 
filed with OWCP, but another person may do so on the survivor's behalf. 
Although only one survivor needs to file a claim under this section to 
initiate the development process, OWCP will distribute any monetary 
benefits payable on the claim among all eligible surviving 
beneficiaries who have filed claims with OWCP.
    (b) A survivor may choose, at his or her own option, to file for 
benefits for only certain conditions that are potentially compensable 
under the Act (e.g., the survivor may not want to claim for an 
occupational illness or a covered illness for which a payment has been 
received that would necessitate an offset of EEOICPA benefits under the 
provisions of Sec.  30.505(b)). The survivor may withdraw his or her 
claim by so requesting in writing to OWCP at any time before OWCP 
determines his or her eligibility for benefits.
    (c) A survivor must be alive to receive any payment under the 
EEOICPA; there is no vested right to such payment.
    (d) Except as provided in paragraph (e) of this section, a 
survivor's claim is considered to be ``filed'' on the date that the 
survivor mails his or her claim to OWCP, as determined by postmark, or 
the date that the claim is received by OWCP, whichever is the earliest 
determinable date. However, in no event will a survivor's claim under 
Part B of the Act be considered to be ``filed'' earlier than July 31, 
2001, nor will a survivor's claim under Part E of the Act be considered 
to be ``filed'' earlier than October 30, 2000.
    (1) The survivor, or the person filing the claim on behalf of the 
survivor, shall affirm that the information provided on the Form EE-2 
is true, and must inform OWCP of any subsequent changes to that 
information.
    (2) Except for the survivor of a covered uranium employee claiming 
under Part B of the Act, the survivor is responsible for submitting, or 
arranging for the submission of, evidence to OWCP that establishes that 
the employee upon whom the survivor's claim is based was eligible for 
such benefits, including medical evidence that establishes that the 
employee sustained an occupational illness or a covered illness. This 
required medical evidence is described in Sec.  30.114 and does not 
refer to mere recitations by the survivor of symptoms the employee 
experienced that the survivor believes indicate that the employee 
sustained an occupational illness or a covered illness.
    (e) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the survivor mailed his or her claim 
to DOE, as determined by postmark, or on the date that the claim was 
received by DOE, whichever is the earliest determinable date. However, 
in no event will a claim referred to in this paragraph be considered to 
be ``filed'' earlier than October 30, 2000.
    (f) A spouse or a child of a deceased DOE contractor employee or 
RECA section 5 uranium worker, who is not a covered spouse or covered 
child under Part E, may submit a written request to OWCP for a 
determination of whether that deceased DOE contractor employee or RECA 
section 5 uranium worker contracted a covered illness under section 
7385s-4(d) of EEOICPA.
    (1) Any such request submitted pursuant to paragraph (f) of this 
section will not be considered a survivor's claim for benefits under 
Part E of the Act.
    (2) As part of its consideration of any request submitted pursuant 
to paragraph (f) of this section, OWCP will apply the eligibility 
criteria in Sec. Sec.  30.230 and 30.231. However, the adjudicatory 
procedures contained in subpart D of this part will not apply to OWCP's 
consideration of such a request, and OWCP's response to the request 
will not constitute a final agency decision on entitlement to any 
benefits under EEOICPA.


Sec.  30.102  In general, how does an employee file a claim for 
additional impairment or wage-loss under Part E of EEOICPA?

    (a) An employee previously awarded impairment benefits by OWCP may 
file a claim for additional impairment

[[Page 33613]]

benefits. Such claim must be based on an increase in the employee's 
minimum impairment rating attributable to the covered illness or 
illnesses from the impairment rating that formed the basis for the last 
award of such benefits by OWCP. OWCP will only adjudicate claims for 
such an increased rating that are filed at least two years from the 
date of the last award of impairment benefits. However, OWCP will not 
wait two years before it will adjudicate a claim for additional 
impairment that is based on an allegation that the employee sustained a 
new covered illness.
    (b) An employee previously awarded wage-loss benefits by OWCP may 
be eligible for additional wage-loss benefits for periods of wage-loss 
that were not addressed in a prior claim only if the employee had not 
reached his or her Social Security retirement age at the time of the 
prior award. OWCP will adjudicate claims filed on a yearly basis in 
connection with each succeeding calendar year for which qualifying 
wage-loss under Part E is alleged, as well as claims that aggregate 
calendar years for which qualifying wage-loss is alleged.
    (c) Employees should use Form EE-10 to claim for additional 
impairment or wage-loss benefits under Part E of EEOICPA.
    (1) The employee, or the person filing the claim on behalf of the 
employee, shall affirm that the information provided on Form EE-10 is 
true, and must inform OWCP of any subsequent changes to that 
information.
    (2) The employee is responsible for submitting with any claim filed 
under this section, or arranging for the submission of, factual and 
medical evidence establishing that he or she experienced another 
calendar year of qualifying wage-loss, and/or medical evidence 
establishing that he or she has an increased minimum impairment rating, 
as appropriate.


Sec.  30.103  How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

    (a) Claims and certain required submissions should be made on forms 
prescribed by OWCP. Persons submitting forms shall not modify these 
forms or use substitute forms.

------------------------------------------------------------------------
            Form No.                               Title
------------------------------------------------------------------------
(1) EE-1........................  Claim for Benefits Under the Energy
                                   Employees Occupational Illness
                                   Compensation Program Act.
(2) EE-2........................  Claim for Survivor Benefits Under the
                                   Energy Employees Occupational Illness
                                   Compensation Program Act.
(3) EE-3........................  Employment History for a Claim Under
                                   the Energy Employees Occupational
                                   Illness Compensation Program Act.
(4) EE-4........................  Employment History Affidavit for a
                                   Claim Under the Energy Employees
                                   Occupational Illness Compensation
                                   Program Act.
------------------------------------------------------------------------

    (b) Copies of the forms listed in this section are available for 
public inspection at the Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, 
Washington, DC 20210. They may also be obtained from OWCP district 
offices and on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.

Verification of Alleged Employment


Sec.  30.105  What must DOE do after an employee or survivor files a 
claim?

    (a) After it receives a claim for benefits described in Sec. Sec.  
30.100 or 30.101, OWCP may request that DOE verify the employment 
history provided by the claimant. Upon receipt of such a request, DOE 
will complete Form EE-5 as soon as possible and transmit the completed 
form to OWCP. On this form, DOE will certify either that it concurs 
with the employment history provided by the claimant, that it disagrees 
with such history, or that it can neither concur nor disagree after 
making a reasonable search of its records and also making a reasonable 
effort to locate pertinent records not already in its possession.
    (b) Claims for additional impairment or wage-loss benefits under 
Part E of the Act described in Sec.  30.102 will not require any 
verification of employment by DOE, since OWCP will have made any 
required findings on this particular issue when it adjudicated the 
employee's initial claim for benefits.


Sec.  30.106  Can OWCP request employment verification from other 
sources?

    (a) For most claims filed under EEOICPA, DOE has access to 
sufficient factual information to enable it to fulfill its obligations 
described in Sec.  30.105(a). However, in instances where it lacks such 
information, DOE may arrange for other entities to provide OWCP with 
the information necessary to verify an employment history submitted as 
part of a claim. These other entities may consist of either current or 
former DOE contractors and subcontractors, atomic weapons employers, 
beryllium vendors, or other entities with access to relevant employment 
information.
    (b) On its own initiative, OWCP may also arrange for entities other 
than DOE to perform the employment verification duties described in 
Sec.  30.105(a).

Evidence and Burden of Proof


Sec.  30.110  Who is entitled to compensation under the Act?

    (a) Under Part B of EEOICPA, compensation is payable to the 
following covered Part B employees, or their survivors:
    (1) A ``covered beryllium employee'' (as described in Sec.  
30.205(a)) with a covered beryllium illness (as defined in Sec.  
30.5(o)) who was exposed to beryllium in the performance of duty (in 
accordance with Sec.  30.206).
    (2) A ``covered Part B employee with cancer'' (as described in 
Sec.  30.210(a)).
    (3) A ``covered Part B employee with chronic silicosis'' (as 
described in Sec.  30.220).
    (4) A ``covered uranium employee'' (as defined in Sec.  30.5(s)).
    (b) Under Part E of EEOICPA, compensation is payable to a ``covered 
Part E employee'' (as defined in Sec.  30.5(p)), or his or her 
survivors.
    (c) Any claim that does not meet all of the criteria for at least 
one of these categories, as set forth in the regulations in this part, 
must be denied.
    (d) All claims for benefits under the Act must comply with the 
claims procedures and requirements set forth in subpart B of this part 
before any payment can be made from the Fund.


Sec.  30.111  What is the claimant's responsibility with respect to 
burden of proof, production of documents, presumptions, and affidavits?

    (a) Except where otherwise provided in the Act and these 
regulations, the claimant bears the burden of proving by a 
preponderance of the evidence the existence of each and every criterion 
necessary to establish eligibility under any compensable claim category 
set forth in Sec.  30.110. Proof by a preponderance of the evidence 
means that it is more likely than not that the proposition to be proved 
is true. Subject to the exceptions expressly provided in the Act and 
the regulations in this part, the claimant also bears the burden of 
providing to OWCP all written medical documentation, contemporaneous 
records, or other records and documents necessary to establish any and 
all criteria for benefits set forth in these regulations.
    (b) In the event that the claim lacks required information or 
supporting documentation, OWCP will notify the claimant of the 
deficiencies and provide him or her an opportunity for correction of 
the deficiencies.

[[Page 33614]]

    (c) Written affidavits or declarations, subject to penalty for 
perjury, by the employee, survivor or any other person, will be 
accepted as evidence of employment history and survivor relationship 
for purposes of establishing eligibility and may be relied on in 
determining whether a claim meets the requirements of the Act for 
benefits if, and only if, such person attests that due diligence was 
used to obtain records in support of the claim, but that no records 
exist.
    (d) A claimant will not be entitled to any presumption otherwise 
provided for in these regulations if substantial evidence exists that 
rebuts the existence of the fact that is the subject of the 
presumption. Substantial evidence means such relevant evidence as a 
reasonable mind might accept as adequate to support a conclusion. When 
such evidence exists, the claimant shall be notified and afforded the 
opportunity to submit additional written medical documentation or 
records.


Sec.  30.112  What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?

    (a) Evidence of covered employment may include: Employment records; 
pay stubs; tax returns; Social Security records; and written affidavits 
or declarations, subject to penalty of perjury, by the employee, 
survivor or any other person. However, no one document is required to 
establish covered employment and a claimant is not required to submit 
all of the evidence listed above. A claimant may submit other evidence 
not listed above to establish covered employment. To be acceptable as 
evidence, all documents and records must be legible. OWCP will accept 
photocopies, certified copies, and original documents and records.
    (b) Pursuant to Sec.  30.105, DOE shall certify that it concurs 
with the employment information provided by the claimant, that it 
disagrees with the information provided by the claimant, or, after a 
reasonable search of its records and a reasonable effort to locate 
pertinent records not already in its possession, it can neither concur 
nor disagree with the information provided by the claimant.
    (1) If DOE certifies that it concurs with the employment 
information provided by the claimant, then the criterion for covered 
employment will be established.
    (2) If DOE certifies that it disagrees with the information 
provided by the claimant or that after a reasonable search of its 
records and a reasonable effort to locate pertinent records not already 
in its possession it can neither concur nor disagree with the 
information provided by the claimant, OWCP will evaluate the evidence 
submitted by the claimant to determine whether the claimant has 
established covered employment by a preponderance of the evidence. OWCP 
may request additional evidence from the claimant to demonstrate that 
the claimant has met the criterion for covered employment. Nothing in 
this section shall be construed to limit OWCP's ability to require 
additional documentation.
    (3) If the only evidence of covered employment is a self-serving 
affidavit and DOE either disagrees with the assertion of covered 
employment or cannot concur or disagree with the assertion of covered 
employment, then OWCP may reject the claim based upon a lack of 
evidence of covered employment.


Sec.  30.113  What are the requirements for written medical 
documentation, contemporaneous records, and other records or documents?

    (a) All written medical documentation, contemporaneous records, and 
other records or documents submitted by an employee or his or her 
survivor to prove any criteria provided for in these regulations must 
be legible. OWCP will accept photocopies, certified copies, and 
original documents and records.
    (b) To establish eligibility, the employee or his or her survivor 
may be required to provide, where appropriate, additional 
contemporaneous records to the extent they exist or an authorization to 
release additional contemporaneous records or a statement by the 
custodian(s) of the record(s) certifying that the requested record(s) 
no longer exist. Nothing in this section shall be construed to limit 
OWCP's ability to require additional documentation.
    (c) If a claimant submits a certified statement, by a person with 
knowledge of the facts, that the medical records containing a diagnosis 
and date of diagnosis of a covered medical condition no longer exist, 
then OWCP may consider other evidence to establish a diagnosis and date 
of diagnosis of a covered medical condition. However, if the certified 
statement is a self-serving document, OWCP may reject the claim based 
upon a lack of evidence of a covered medical condition.


Sec.  30.114  What kind of evidence is needed to establish a covered 
medical condition and how will that evidence be evaluated?

    (a) Evidence of a covered medical condition may include: a 
physician's report, laboratory reports, hospital records, death 
certificates, x-rays, magnetic resonance images or reports, computer 
axial tomography or other imaging reports, lymphocyte proliferation 
testings, beryllium patch tests, pulmonary function or exercise testing 
results, pathology reports including biopsy results and other medical 
records. A claimant is not required to submit all of the evidence 
listed in this paragraph. A claimant may submit other evidence that is 
not listed in this paragraph to establish a covered medical condition. 
Nothing in this section shall be construed to limit OWCP's ability to 
require additional documentation.
    (b) The medical evidence submitted will be used to establish the 
diagnosis and the date of diagnosis of the covered medical condition.
    (1) For covered beryllium illnesses, additional medical evidence, 
as set forth in Sec.  30.207, is required to establish a beryllium 
illness.
    (2) For chronic silicosis, additional medical evidence, as set 
forth in Sec.  30.222, is required to establish chronic silicosis.
    (3) For consequential injuries, illnesses, impairments or diseases, 
the claimant must also submit a physician's fully rationalized medical 
report showing a causal relationship between the resulting injury, 
illness, impairment or disease and the covered medical condition.
    (c) OWCP will evaluate the medical evidence in accordance with 
recognized and accepted diagnostic criteria used by physicians to 
determine whether the claimant has established the medical condition 
for which compensation is sought in accordance with the requirements of 
the Act.

Special Procedures for Certain Radiogenic Cancer Claims


Sec.  30.115  For those radiogenic cancer claims that do not seek 
benefits under Part B of the Act pursuant to the Special Exposure 
Cohort provisions, what will OWCP do once it determines that an 
employee contracted cancer?

    (a) Other than claims for a non-radiogenic cancer listed by HHS at 
42 CFR 81.30, or claims seeking benefits under Part E of the Act that 
have previously been accepted under section 7384u of the Act, or claims 
previously accepted under Part B pursuant to the Special Exposure 
Cohort provisions, OWCP will forward the claim package (including, but 
not limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) 
to HHS for dose reconstruction. At that point in time, development of 
the claim by OWCP may be suspended.

[[Page 33615]]

    (1) This package will include OWCP's initial findings in regard to 
the diagnosis and date of diagnosis of the employee, as well as any 
employment history compiled by OWCP (including information such as 
dates and locations worked, and job titles). The package, however, will 
not constitute either a recommended or final decision by OWCP on the 
claim.
    (2) HHS will then reconstruct the radiation dose of the employee, 
after such further development of the employment history as it may deem 
necessary, and provide OWCP, DOE and the claimant with the final dose 
reconstruction report. The final dose reconstruction record will be 
delivered to OWCP with the final dose reconstruction report and to the 
claimant upon request.
    (b) Following its receipt of the reconstructed dose from HHS, OWCP 
will resume its adjudication of the cancer claim and consider whether 
the claimant has met the eligibility criteria set forth in subpart C of 
this part. However, during the period before it receives a 
reconstructed dose from HHS, OWCP may continue to develop other aspects 
of a claim, to the extent that it deems such development to be 
appropriate.

Subpart C--Eligibility Criteria

General Provisions


Sec.  30.200  What is the scope of this subpart?

    The regulations in this subpart describe the criteria for 
eligibility for benefits for claims under Part B of EEOICPA relating to 
covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t 
of the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of 
the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and 
7384t of the Act; and for claims relating to covered uranium employees 
under sections 7384t and 7384u of the Act. These regulations also 
describe the criteria for eligibility for benefits for claims under 
Part E of EEOICPA relating to covered illnesses under sections 7385s-4 
and 7385s-5 of the Act. This subpart describes the type and extent of 
evidence that will be necessary to establish the criteria for 
eligibility for compensation for these illnesses.

Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
Under Part B of EEOICPA


Sec.  30.205  What are the criteria for eligibility for benefits 
relating to beryllium illnesses covered under Part B of EEOICPA?

    To establish eligibility for benefits under this section, the 
claimant must establish the criteria set forth in both paragraphs (a) 
and (b) of this section:
    (a) The employee is a covered beryllium employee only if the 
criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and 
(a)(3) of this section, are established:
    (1) The employee is a ``current or former employee as defined in 5 
U.S.C. 8101(1)'' (see Sec.  30.5(t) of this part) who may have been 
exposed to beryllium at a DOE facility or at a facility owned, 
operated, or occupied by a beryllium vendor; or
    (2) The employee is a current or former civilian employee of:
    (i) Any entity that contracted with the DOE to provide management 
and operation, management and integration, or environmental remediation 
of a DOE facility; or
    (ii) Any contractor or subcontractor that provided services, 
including construction and maintenance, at such a facility; or
    (iii) A beryllium vendor, or of a contractor or subcontractor of a 
beryllium vendor, during a period when the vendor was engaged in 
activities related to the production or processing of beryllium for 
sale to, or use by, the DOE, including periods during which 
environmental remediation of a vendor's facility was undertaken 
pursuant to a contract between the vendor and DOE; and
    (3) The civilian employee was exposed to beryllium in the 
performance of duty by establishing that he or she was, during a period 
when beryllium dust, particles, or vapor may have been present at such 
a facility:
    (i) Employed at a DOE facility (as defined in Sec.  30.5(x) of this 
part); or
    (ii) Present at a DOE facility, or at a facility owned, operated, 
or occupied by a beryllium vendor, because of his or her employment by 
the United States, a beryllium vendor, a contractor or subcontractor of 
a beryllium vendor, or a contractor or subcontractor of the DOE. Under 
this paragraph, exposure to beryllium in the performance of duty can be 
established whether or not the beryllium that may have been present at 
such facility was produced or processed for sale to, or use by, DOE.
    (b) The employee has one of the following:
    (1) Beryllium sensitivity as established by an abnormal beryllium 
LPT performed on either blood or lung lavage cells.
    (2) Established chronic beryllium disease.
    (3) Any injury, illness, impairment, or disability sustained as a 
consequence of the conditions specified in paragraphs (b)(1) and (2) of 
this section.


Sec.  30.206  How does a claimant prove that the employee was a 
``covered beryllium employee'' exposed to beryllium dust, particles or 
vapor in the performance of duty?

    (a) Proof of employment at or physical presence at a DOE facility, 
or a facility owned, operated, or occupied by a beryllium vendor, 
because of employment by the United States, a beryllium vendor, or a 
contractor or subcontractor of a beryllium vendor during a period when 
beryllium dust, particles, or vapor may have been present at such a 
facility, may be made by the submission of any trustworthy records 
that, on their face or in conjunction with other such records, 
establish that the employee was employed or present at a covered 
facility and the time period of such employment or presence.
    (b) If the evidence shows that exposure occurred while the employee 
was employed or present at a facility during a time frame that is 
outside the relevant time frame indicated for that facility by DOE, 
OWCP may request that DOE provide additional information on the 
facility. OWCP will determine whether the evidence of record supports 
enlarging the relevant time frame for that facility.
    (c) If the evidence shows that exposure occurred while the employee 
was employed or present at a facility that would have to be designated 
by DOE as a beryllium vendor under section 7384m of the Act to be a 
covered facility, and that the facility has not been so designated, 
OWCP will deny the claim on the ground that the facility is not a 
covered facility.
    (d) Records from the following sources may be considered as 
evidence for purposes of establishing employment or presence at a 
covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created by any vendor, processor, or 
producer of beryllium or related products designated as a beryllium 
vendor by the

[[Page 33616]]

DOE in accordance with section 7384m of the Act.
    (3) Records or documents created as a by product of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.


Sec.  30.207  How does a claimant prove a diagnosis of a beryllium 
disease covered under Part B?

    (a) Written medical documentation is required in all cases to prove 
that the employee developed a covered beryllium illness. Proof that the 
employee developed a covered beryllium illness must be made by using 
the procedures outlined in paragraphs (b), (c), or (d) of this section.
    (b) Beryllium sensitivity or sensitization is established with an 
abnormal LPT performed on either blood or lung lavage cells.
    (c) Chronic beryllium disease is established in the following 
manner:
    (1) For diagnoses on or after January 1, 1993, beryllium 
sensitivity (as established in accordance with paragraph (b) of this 
section), together with lung pathology consistent with chronic 
beryllium disease, including the following:
    (i) A lung biopsy showing granulomas or a lymphocytic process 
consistent with chronic beryllium disease;
    (ii) A computerized axial tomography scan showing changes 
consistent with chronic beryllium disease; or
    (iii) Pulmonary function or exercise testing showing pulmonary 
deficits consistent with chronic beryllium disease.
    (2) For diagnoses before January 1, 1993, the presence of the 
following:
    (i) Occupational or environmental history, or epidemiologic 
evidence of beryllium exposure; and
    (ii) Any three of the following criteria:
    (A) Characteristic chest radiographic (or computed tomography (CT)) 
abnormalities.
    (B) Restrictive or obstructive lung physiology testing or diffusing 
lung capacity defect.
    (C) Lung pathology consistent with chronic beryllium disease.
    (D) Clinical course consistent with a chronic respiratory disorder.
    (E) Immunologic tests showing beryllium sensitivity (skin patch 
test or beryllium blood test preferred).
    (d) An injury, illness, impairment or disability sustained as a 
consequence of beryllium sensitivity or established chronic beryllium 
disease must be established with a fully rationalized medical report by 
a physician that shows the relationship between the injury, illness, 
impairment or disability and the beryllium sensitivity or established 
chronic beryllium disease. Neither the fact that the injury, illness, 
impairment or disability manifests itself after a diagnosis of 
beryllium sensitivity or established chronic beryllium disease, nor the 
belief of the claimant that the injury, illness, impairment or 
disability was caused by the beryllium sensitivity or established 
chronic beryllium disease, is sufficient in itself to prove a causal 
relationship.

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E of EEOICPA


Sec.  30.210  What are the criteria for eligibility for benefits 
relating to radiogenic cancer?

    (a) To establish eligibility for benefits for radiogenic cancer 
under Part B of EEOICPA, an employee or his or her survivor must show 
that:
    (1) The employee has been diagnosed with one of the forms of cancer 
specified in Sec.  30.5(ff) of this part; and
    (i) Is a member of the Special Exposure Cohort (as described in 
Sec.  30.214(a) of this subpart) who, as a civilian DOE employee or 
civilian DOE contractor employee, contracted the specified cancer after 
beginning employment at a DOE facility; or
    (ii) Is a member of the Special Exposure Cohort (as described in 
Sec.  30.214(a) of this subpart) who, as a civilian atomic weapons 
employee, contracted the specified cancer after beginning employment at 
an atomic weapons employer facility (as defined in Sec.  30.5(e)); or
    (2) The employee has been diagnosed with cancer; and
    (i)(A) Is/was a civilian DOE employee who contracted that cancer 
after beginning employment at a DOE facility; or
    (B) Is/was a civilian DOE contractor employee who contracted that 
cancer after beginning employment at a DOE facility; or
    (C) Is/was a civilian atomic weapons employee who contracted that 
cancer after beginning employment at an atomic weapons employer 
facility; and
    (ii) The cancer was at least as likely as not related to the 
employment at the DOE facility or atomic weapons employer facility; or
    (3) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
cancer.
    (b)(1) To establish eligibility for benefits for radiogenic cancer 
under Part E of EEOICPA, an employee or his or her survivor must show 
that:
    (i) The employee has been diagnosed with cancer; and
    (A) Is/was a civilian DOE contractor employee or a civilian RECA 
section 5 uranium worker who contracted that cancer after beginning 
employment at a DOE facility or a RECA section 5 facility; and
    (B) The cancer was at least as likely as not related to exposure to 
a toxic substance of a radioactive nature at a DOE facility or a RECA 
section 5 facility; and
    (C) It is at least as likely as not that the exposure to such toxic 
substance(s) was related to employment at a DOE facility or a RECA 
section 5 facility; or
    (ii) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
cancer.
    (2) Eligibility for benefits for radiogenic cancer under Part E in 
a claim that has previously been accepted under Part B pursuant to the 
Special Exposure Cohort provisions is described in Sec.  30.230(a).


Sec.  30.211  How does a claimant establish that the employee has or 
had contracted cancer?

    A claimant establishes that the employee has or had contracted a 
specified cancer (as defined in Sec.  30.5(ff)) or other cancer with 
medical evidence that sets forth an explicit diagnosis of cancer and 
the date on which that diagnosis was first made.


Sec.  30.212  How does a claimant establish that the employee 
contracted cancer after beginning employment at a DOE facility, an 
atomic weapons employer facility or a RECA section 5 facility?

    (a) Proof of employment by the DOE or a DOE contractor at a DOE 
facility, or by an atomic weapons employer at an atomic weapons 
employer facility, or at a RECA section 5 facility, may be made by the 
submission of any trustworthy records that, on their face or in 
conjunction with other such records, establish that the employee was so 
employed and the time period(s) of such employment.
    (b)(1) Except as provided in paragraph (b)(2) of this section, if 
the evidence shows that exposure occurred while the employee was 
employed at a facility during a time frame that is outside the relevant 
period indicated for that facility by DOE, OWCP may request that DOE 
provide additional information on the facility. OWCP will determine 
whether the evidence of record supports enlarging the relevant period 
for that facility.
    (2) OWCP may choose not to request that DOE provide additional 
information on an atomic weapons employer facility that NIOSH reported 
had a potential for significant residual

[[Page 33617]]

radiation contamination in its report dated October 2003 and titled 
``Report on Residual Radioactive and Beryllium Contamination at Atomic 
Weapons Employer Facilities and Beryllium Vendor Facilities,'' or any 
update to that report, if the evidence referred to in paragraph (a) of 
this section establishes that the employee was employed at that 
facility during a period when NIOSH reported that it had a potential 
for significant residual radiation contamination.
    (c) If the evidence shows that exposure occurred while the employee 
was employed by an employer that would have to be designated by DOE as 
an atomic weapons employer under section 7384l(4) of the Act to be a 
covered employer, and that the employer has not been so designated, 
OWCP will deny the claim on the ground that the employer is not a 
covered atomic weapons employer.
    (d) Records from the following sources may be considered as 
evidence for purposes of establishing employment or presence at a 
covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.


Sec.  30.213  How does a claimant establish that the radiogenic cancer 
was at least as likely as not related to employment at the DOE 
facility, the atomic weapons employer facility, or the RECA section 5 
facility?

    (a) HHS, with the advice of the Advisory Board on Radiation and 
Worker Health, has issued regulatory guidelines at 42 CFR part 81 that 
OWCP uses to determine whether radiogenic cancers claimed under Parts B 
and E of EEOICPA were at least as likely as not related to employment 
at a DOE facility, an atomic weapons employer facility, or a RECA 
section 5 facility, as appropriate. Persons should consult HHS's 
regulations for information regarding the factual evidence that will be 
considered by OWCP, in addition to the employee's radiation dose 
reconstruction that will be provided to OWCP by HHS, in making this 
particular factual determination.
    (b) HHS's regulations satisfy the legal requirements in section 
7384n(c) of the Act, which also sets out OWCP's obligation to use them 
in its adjudication of claims for radiogenic cancer filed under Part B 
of the Act, and provide the factual basis for OWCP to determine if the 
``probability of causation'' (PoC) that an employee's cancer was 
sustained in the performance of duty is 50% or greater (i.e., it is 
``at least as likely as not'' causally related to employment), as 
required under section 7384n(b).
    (c) OWCP also uses HHS's regulations when it makes the 
determination required by section 7385s-4(c)(1)(A) of the Act, since 
those regulations provide the factual basis for OWCP to determine if 
``it is at least as likely as not'' that exposure to radiation at a DOE 
facility or RECA section 5 facility, as appropriate, was a significant 
factor in aggravating, contributing to, or causing the employee's 
radiogenic cancer claimed under Part E of EEOICPA. For cancer claims 
under Part E, if the PoC is less than 50% and the claimant alleges that 
the employee was exposed to additional toxic substances, OWCP will 
determine if the claim is otherwise compensable pursuant to Sec.  
30.230(d) of this part.


Sec.  30.214  How does a claimant establish that the employee is a 
member of the Special Exposure Cohort?

    (a) For purposes of establishing eligibility as a member of the 
Special Exposure Cohort (SEC) under Sec.  30.210(a)(1), the employee 
must have been a DOE employee, a DOE contractor employee, or an atomic 
weapons employee who meets any of the following requirements:
    (1) The employee was so employed for a number of workdays 
aggregating at least 250 workdays before February 1, 1992, at a gaseous 
diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak 
Ridge, Tennessee; and during such employment:
    (i) Was monitored through the use of dosimetry badges for exposure 
at the plant of the external parts of the employee's body to radiation; 
or
    (ii) Worked in a job that had exposures comparable to a job that is 
or was monitored through the use of dosimetry badges.
    (2) The employee was so employed before January 1, 1974, by DOE or 
a DOE contractor or subcontractor on Amchitka Island, Alaska, and was 
exposed to ionizing radiation in the performance of duty related to the 
Long Shot, Milrow, or Cannikin underground nuclear tests.
    (3) The employee is a member of a group or class of employees 
subsequently designated as additional members of the SEC by HHS.
    (b) For purposes of satisfying the 250 workday requirement of 
paragraph (a)(1) of this section, the claimant may aggregate the days 
of service at more than one gaseous diffusion plant.
    (c) Proof of employment by the DOE or a DOE contractor, or an 
atomic weapons employer, for the requisite time periods set forth in 
paragraph (a) of this section, may be made by the submission of any 
trustworthy records that, on their face or in conjunction with other 
such records, establish that the employee was so employed and the time 
period(s) of such employment. If the evidence shows that exposure 
occurred while the employee was employed by an employer that would have 
to be designated by DOE as an atomic weapons employer under section 
7384l(4) of the Act to be a covered employer, and that the employer has 
not been so designated, OWCP will deny the claim on the ground that the 
employer is not a covered atomic weapons employer.
    (d) Records from the following sources may be considered as 
evidence for purposes of establishing employment or presence at a 
covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.


Sec.  30.215  How does a claimant establish that the employee has 
sustained an injury, illness, impairment or disease as a consequence of 
a diagnosed cancer?

    An injury, illness, impairment or disease sustained as a 
consequence of a diagnosed cancer covered by the provisions of Sec.  
30.210 must be established with a fully rationalized medical report by 
a physician that shows the relationship between the injury, illness, 
impairment or disease and the cancer. Neither the fact that the injury, 
illness, impairment or disease manifests itself after a diagnosis of a 
cancer, nor the belief of the claimant that the injury, illness, 
impairment or disease was caused by the cancer, is sufficient in itself 
to prove a causal relationship.

[[Page 33618]]

Eligibility Criteria for Claims Relating to Chronic Silicosis Under 
Part B of EEOICPA


Sec.  30.220  What are the criteria for eligibility for benefits 
relating to chronic silicosis?

    To establish eligibility for benefits for chronic silicosis under 
Part B of EEOICPA, an employee or his or her survivor must show that:
    (a) The employee is a civilian DOE employee, or a civilian DOE 
contractor employee, who was present for a number of workdays 
aggregating at least 250 workdays during the mining of tunnels at a DOE 
facility (as defined in Sec.  30.5(x)) located in Nevada or Alaska for 
tests or experiments related to an atomic weapon, and has been 
diagnosed with chronic silicosis (as defined in Sec.  30.5(j)); or
    (b) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
chronic silicosis.


Sec.  30.221  How does a claimant prove exposure to silica in the 
performance of duty?

    (a) Proof of the employee's employment and presence for the 
requisite days during the mining of tunnels at a DOE facility located 
in Nevada or Alaska for tests or experiments related to an atomic 
weapon may be made by the submission of any trustworthy records that, 
on their face or in conjunction with other such records, establish that 
the employee was so employed and present at these sites and the time 
period(s) of such employment and presence.
    (b) If the evidence shows that exposure occurred while the employee 
was employed and present at a facility during a time frame that is 
outside the relevant time frame indicated for that facility by DOE, 
OWCP may request that DOE provide additional information on the 
facility. OWCP will determine whether the evidence of record supports 
enlarging the relevant time frame for that facility.
    (c) Records from the following sources may be considered as 
evidence for purposes of establishing proof of employment or presence 
at a covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.
    (d) For purposes of satisfying the 250 workday requirement of Sec.  
30.220(a), the claimant may aggregate the days of service at more than 
one qualifying site.


Sec.  30.222  How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential 
injury, illness, impairment or disease?

    (a) A written diagnosis of the employee's chronic silicosis (as 
defined in Sec.  30.5(j)) shall be made by a medical doctor and 
accompanied by one of the following:
    (1) A chest radiograph, interpreted by an individual certified by 
NIOSH as a B reader, classifying the existence of pneumoconioses of 
category 1/0 or higher; or
    (2) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (3) Lung biopsy findings consistent with silicosis.
    (b) An injury, illness, impairment or disease sustained as a 
consequence of accepted chronic silicosis covered by the provisions of 
Sec.  30.220(a) must be established with a fully rationalized medical 
report by a physician that shows the relationship between the injury, 
illness, impairment or disease and the accepted chronic silicosis. 
Neither the fact that the injury, illness, impairment or disease 
manifests itself after a diagnosis of accepted chronic silicosis, nor 
the belief of the claimant that the injury, illness, impairment or 
disease was caused by the accepted chronic silicosis, is sufficient in 
itself to prove a causal relationship.

Eligibility Criteria for Certain Uranium Employees Under Part B of 
EEOICPA


Sec.  30.225  What are the criteria for eligibility for benefits under 
Part B of EEOICPA for certain uranium employees?

    In order to be eligible for benefits under this section, the 
claimant must establish the criteria set forth in either paragraph (a) 
or paragraph (b) of this section:
    (a) The Attorney General has determined that the claimant is a 
covered uranium employee who is entitled to payment of $100,000 as 
compensation due under section 5 of RECA for a claim made under that 
statute (there is, however, no requirement that the claimant or 
surviving eligible beneficiary has actually received payment pursuant 
to RECA). If a deceased employee's survivor has been determined to be 
entitled to such an award, his or her survivor(s), if any, will only be 
entitled to EEOICPA compensation in accordance with section 7384u(e) of 
the Act.
    (b) The covered uranium employee has been diagnosed with an injury, 
illness, impairment or disease that arose as a consequence of the 
medical condition for which he or she was determined to be entitled to 
payment of $100,000 as compensation due under section 5 of RECA.


Sec.  30.226  How does a claimant establish that a covered uranium 
employee has sustained a consequential injury, illness, impairment or 
disease?

    An injury, illness, impairment or disease sustained as a 
consequence of a medical condition covered by the provisions of Sec.  
30.225(a) must be established with a fully rationalized medical report 
by a physician that shows the relationship between the injury, illness, 
impairment or disease and the accepted medical condition. Neither the 
fact that the injury, illness, impairment or disease manifests itself 
after a diagnosis of a medical condition covered by the provisions of 
Sec.  30.225(a), nor the belief of the claimant that the injury, 
illness, impairment or disease was caused by such a condition, is 
sufficient in itself to prove a causal relationship.

Eligibility Criteria for Other Claims Under Part E of EEOICPA


Sec.  30.230  What are the criteria necessary to establish that an 
employee contracted a covered illness under Part E of EEOICPA?

    To establish that an employee contracted a covered illness under 
Part E of the Act, the employee, or his or her survivor, must show one 
of the following:
    (a) That OWCP has determined under Part B of EEOICPA that the 
employee is a Department of Energy contractor employee as defined in 
Sec.  30.5(w), and that he or she has been awarded compensation under 
that Part of the Act for an occupational illness;
    (b) That the Attorney General has determined that the employee is 
entitled to payment of $100,000 as compensation due under section 5 of 
RECA for a claim made under that statute (however, if a deceased 
employee's survivor has been determined to be entitled to such an 
award, his or her survivor(s), if any, will only be entitled to 
benefits under Part E of EEOICPA in accordance with section 7385s-3 of 
the Act);
    (c) That the Secretary of Energy has accepted a positive 
determination of a Physicians Panel that the employee sustained an 
illness or died due to exposure to a toxic substance at a DOE

[[Page 33619]]

facility under former section 7385o of EEOICPA, or that the Secretary 
of Energy has found significant evidence contrary to a negative 
determination of a Physicians Panel; or
    (d)(1) That the employee is a Department of Energy contractor 
employee as defined in Sec.  30.5(w), or an individual who was employed 
in a uranium mine or mill located in Colorado, New Mexico, Arizona, 
Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or 
Texas at any time during the period from January 1, 1942 through 
December 31, 1971, or was employed in the transport of uranium ore or 
vanadium-uranium ore from such a mine or mill during that same period, 
and that he or she:
    (i) Has been diagnosed with an illness; and
    (ii) That it is at least as likely as not that exposure to a toxic 
substance at a Department of Energy facility or at a RECA section 5 
facility, as appropriate, was a significant factor in aggravating, 
contributing to, or causing the illness; and
    (iii) That it is at least as likely as not that the exposure to 
such toxic substance was related to employment at a Department of 
Energy facility or a RECA section 5 facility, as appropriate.
    (2) In making the determination under paragraph (d)(1)(ii) of this 
section, OWCP will consider:
    (i) The nature, frequency and duration of exposure of the covered 
employee to the substance alleged to be toxic;
    (ii) Evidence of the carcinogenic or pathogenic properties of the 
alleged toxic substance to which the employee was exposed;
    (iii) An opinion of a qualified physician with expertise in 
treating, diagnosing or researching the illness claimed to be caused or 
aggravated by the alleged exposure; and
    (iv) Any other evidence that OWCP determines to have demonstrated 
relevance to the relation between a particular toxic substance and the 
claimed illness.


Sec.  30.231  How does a claimant prove employment-related exposure to 
a toxic substance at a DOE facility or a RECA section 5 facility?

    To establish employment-related exposure to a toxic substance at a 
Department of Energy facility or RECA section 5 facility as required by 
Sec.  30.230(d), an employee, or his or her survivor(s), must prove 
that the employee was employed at such facility and that he or she was 
exposed to a toxic substance in the course of that employment.
    (a) Proof of employment may be established by any trustworthy 
records that, on their face or in conjunction with other such records, 
establish that the employee was so employed and the time period(s) of 
such employment.
    (b) Proof of exposure to a toxic substance may be established by 
the submission of any appropriate document or information that is 
evidence that such substance was present at the facility in which the 
employee was employed and that the employee came into contact with such 
substance.


Sec.  30.232  How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?

    (a) To establish that the employee has been diagnosed with a 
covered illness as required by Sec.  30.230(d), the employee, or his or 
her survivor(s), must provide the following:
    (1) The name and address of any licensed physician who is the 
source of a diagnosis based upon documented medical information that 
the employee has or had an illness and that the illness may have 
resulted from exposure to a toxic substance while the employee was 
employed at a DOE facility or a RECA section 5 facility, as 
appropriate, and, to the extent practicable, a copy of the diagnosis 
and a summary of the information upon which the diagnosis is based; and
    (2) A signed medical release, authorizing the release of any 
diagnosis, medical opinion and medical records documenting the 
diagnosis or opinion that the employee has or had an illness and that 
the illness may have resulted from exposure to a toxic substance while 
the employee was employed at a DOE facility or RECA section 5 facility, 
as appropriate; and
    (3) To the extent practicable and appropriate, an occupational 
history obtained by a physician, an occupational health professional, 
or a DOE-sponsored Former Worker Program (if such an occupational 
history is not reasonably available or is inadequate, and such history 
is deemed by OWCP to be needed for the fair adjudication of the claim, 
then OWCP may assist the claimant in developing this history); and
    (4) Any other information or materials deemed by OWCP to be 
necessary to provide reasonable evidence that the employee has or had 
an illness that may have arisen from exposure to a toxic substance 
while employed at a DOE facility or RECA section 5 facility, as 
appropriate.
    (b) The employee, or his or her survivor(s), may also submit to 
OWCP other evidence not described in paragraph (a) of this section 
showing that the employee has or had an illness that resulted from an 
exposure to a toxic substance during the course of employment at either 
a DOE facility or a RECA section 5 facility, as appropriate.
    (c) An injury, illness, impairment or disease sustained as a 
consequence of a covered illness (as defined in Sec.  30.5(r)) must be 
established with a fully rationalized medical report by a physician 
that shows the relationship between the injury, illness, impairment or 
disease and the covered illness. Neither the fact that the injury, 
illness, impairment or disease manifests itself after a diagnosis of a 
covered illness, nor the belief of the claimant that the injury, 
illness, impairment or disease was caused by the covered illness, is 
sufficient in itself to prove a causal relationship.

Subpart D--Adjudicatory Process


Sec.  30.300  What process will OWCP use to decide claims for 
entitlement and to provide for administrative review of those 
decisions?

    OWCP district offices will issue recommended decisions with respect 
to claims for entitlement under Part B and/or Part E of EEOICPA that 
are filed pursuant to the regulations set forth in subpart B of this 
part. In circumstances where a claim is made for more than one benefit 
available under Part B and/or Part E of the Act, OWCP may issue a 
recommended decision on only part of that particular claim in order to 
adjudicate that portion of the claim as quickly as possible. Should 
this occur, OWCP will issue one or more recommended decisions on the 
deferred portions of the claim when the adjudication of those portions 
is completed. All recommended decisions granting and/or denying 
benefits under Part B and/or Part E of the Act will be forwarded to the 
Final Adjudication Branch (FAB). Claimants will be given an opportunity 
to object to all or part of the recommended decision before the FAB. 
The FAB will consider objections filed by a claimant and conduct a 
hearing, if requested to do so by the claimant, before issuing a final 
decision on the claim for entitlement.


Sec.  30.301  May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?

    (a) In connection with the adjudication of a claim under Part B of 
EEOICPA, an OWCP district office and/or a FAB reviewer may, at their 
own

[[Page 33620]]

initiative, issue subpoenas for the attendance and testimony of 
witnesses, and for the production of books, electronic records, 
correspondence, papers or other relevant documents. Subpoenas will only 
be issued for documents if they are relevant and cannot be obtained by 
other means, and for witnesses only where oral testimony is the best 
way to ascertain the facts.
    (b) A claimant may also request a subpoena in connection with his 
or her claim under Part B of the Act, but such request may only be made 
to a FAB reviewer. No subpoenas will be issued at the request of the 
claimant under any other portion of the claims process. The decision to 
grant or deny such request is within the discretion of the FAB 
reviewer. To request a subpoena under this section, the requestor must:
    (1) Submit the request in writing and send it to the FAB reviewer 
as early as possible, but no later than 30 days (as evidenced by 
postmark, electronic marker or other objective date mark) after the 
date of the original hearing request;
    (2) Explain why the testimony or evidence is directly relevant and 
material to the issues in the case; and
    (3) Establish that a subpoena is the best method or opportunity to 
obtain such evidence because there are no other means by which the 
documents or testimony could have been obtained.
    (c) No subpoena will be issued for attendance of employees of OWCP 
acting in their official capacities as decision-makers or policy 
administrators. For hearings taking the form of a review of the written 
record, no subpoena for the appearance of witnesses will be considered.
    (d) The FAB reviewer will issue the subpoena under his or her own 
name. It may be served in person or by certified mail, return receipt 
requested, addressed to the person to be served at his or her last 
known principal place of business or residence. A decision to deny a 
subpoena requested by a claimant can only be challenged as part of a 
request for reconsideration of any adverse decision of the FAB which 
results from the hearing.


Sec.  30.302  Who pays the costs associated with subpoenas?

    (a) Witnesses who are not employees or former employees of the 
federal government shall be paid the same fees and mileage as paid for 
like services in the District Court of the United States where the 
subpoena is returnable, except that expert witnesses shall be paid a 
fee not to exceed the local customary fee for such services.
    (b) Where OWCP asked that the witness submit evidence into the case 
record or asked that the witness attend, OWCP shall pay the fees and 
mileage. Where the claimant asked for the subpoena, and where the 
witness submitted evidence into the record at the request of the 
claimant, the claimant shall pay the fees and mileage.


Sec.  30.303  What information may OWCP request in connection with a 
claim under Part E of EEOICPA?

    At any time during the course of development of a claim for 
benefits under Part E, OWCP may determine that it needs relevant 
information to adjudicate the claim. When this occurs, and at the 
request of OWCP, DOE and/or any contractor who employed a Department of 
Energy contractor employee must provide to OWCP information or 
documents in response to the request in connection with a claim under 
Part E of EEOICPA.
    (a) The party to whom the request is made must respond to OWCP 
within 60 days of the request with either:
    (1) The requested information or documents; or
    (2) A sworn statement that a good faith search for the requested 
information or documents was conducted, and that the information or 
documents could not be located.
    (b) DOE and/or the DOE contractor who employed a Department of 
Energy contractor employee must query third parties under its control 
to acquire the requested information or documents.
    (c) In providing the requested information or documents, DOE and/or 
the DOE contractor who employed a DOE contractor employee must preserve 
the current organization of the requested information or documents, and 
must provide such description and indexing of the requested information 
or documents as OWCP considers appropriate to facilitate their use by 
OWCP.
    (d) Information or document requests may include, but are not 
limited to, requests for records, files and other data, whether paper, 
electronic, imaged or otherwise, developed, acquired or maintained by 
DOE or the DOE contractor who employed a DOE contractor employee. Such 
information or documents may include records, files and data on 
facility industrial hygiene, employment of individuals or groups, 
exposure and medical records, and claims applications.

Recommended Decisions on Claims


Sec.  30.305  How does OWCP determine entitlement to EEOICPA 
compensation?

    (a) In reaching a recommended decision with respect to EEOICPA 
compensation, OWCP considers the claim presented by the claimant, the 
factual and medical evidence of record, the dose reconstruction report 
calculated by HHS (if any), any report submitted by DOE and the results 
of such investigation as OWCP may deem necessary.
    (b) The OWCP claims staff applies the law, the regulations and its 
procedures when it evaluates the medical evidence and the facts as 
reported or obtained upon investigation.


Sec.  30.306  What does the recommended decision contain?

    The recommended decision shall contain findings of fact and 
conclusions of law. The recommended decision may accept or reject the 
claim in its entirety, or it may accept or reject a portion of the 
claim presented. It is accompanied by a notice of the claimant's right 
to file objections with, and request a hearing before, the FAB.


Sec.  30.307  To whom is the recommended decision sent?

    (a) A copy of the recommended decision will be mailed to the 
claimant's last known address. However, if the claimant has a 
designated representative before OWCP, the copy of the recommended 
decision will be mailed to the representative. Notification to either 
the claimant or the representative will be considered notification to 
both parties.
    (b) At the same time it issues a recommended decision on a claim, 
the OWCP district office will forward the record of such claim to the 
FAB. Any new evidence submitted to the district office following the 
issuance of the recommended decision will also be forwarded to the FAB 
for consideration.

Hearings and Final Decisions on Claims


Sec.  30.310  What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?

    (a) Within 60 days from the date the recommended decision is 
issued, the claimant must state, in writing, whether he or she objects 
to any of the findings of fact and/or conclusions of law contained in 
such decision, including HHS's reconstruction of the radiation dose to 
which the employee was exposed (if any), and whether a hearing is 
desired. This written statement should be filed with the FAB at the 
address indicated in the notice

[[Page 33621]]

accompanying the recommended decision.
    (b) For purposes of determining whether the written statement 
referred to in paragraph (a) of this section has been timely filed with 
the FAB, the statement will be considered to be ``filed'' on the date 
that the claimant mails it to the FAB, as determined by postmark, or on 
the date that such written statement is actually received by the FAB, 
whichever is the earliest determinable date.


Sec.  30.311  What happens if the claimant does not object to the 
recommended decision or request a hearing within 60 days?

    (a) If the claimant does not file a written statement that objects 
to the recommended decision and/or requests a hearing within the period 
of time allotted in Sec.  30.310, the FAB may issue a final decision 
accepting the recommendation of the district office as provided in 
Sec.  30.316.
    (b) If the recommended decision accepts all or part of a claim for 
compensation, the FAB may issue a final decision at any time after 
receiving written notice from the claimant that he or she waives any 
objection to all or part of the recommended decision.


Sec.  30.312  What will the FAB do if the claimant objects to the 
recommended decision but does not request a hearing?

    If the claimant files a written statement that objects to the 
recommended decision within the period of time allotted in Sec.  30.310 
but does not request a hearing, the FAB will consider any objections by 
means of a review of the written record. If the claimant only objects 
to part of the recommended decision, the FAB may issue a final decision 
accepting the remaining part of the recommendation of the district 
office without first reviewing the written record (see Sec.  30.316).


Sec.  30.313  How is a review of the written record conducted?

    (a) The FAB reviewer will consider the written record forwarded by 
the district office and any additional evidence and/or argument 
submitted by the claimant. The reviewer may also conduct whatever 
investigation is deemed necessary.
    (b) The claimant should submit, with his or her written statement 
that objects to the recommended decision, all evidence or argument that 
he or she wants to present to the reviewer. However, evidence or 
argument may be submitted at any time up to the date specified by the 
reviewer for the submission of such evidence or argument.
    (c) Any objection that is not presented to the FAB reviewer, 
including any objection to HHS's reconstruction of the radiation dose 
to which the employee was exposed (if any), whether or not the 
pertinent issue was previously presented to the district office, is 
deemed waived for all purposes.


Sec.  30.314  How is a hearing conducted?

    (a) The FAB reviewer retains complete discretion to set the time 
and place of the hearing, including the amount of time allotted for the 
hearing, considering the issues to be resolved. At the discretion of 
the reviewer, the hearing may be conducted by telephone or 
teleconference. As part of the hearing process, the FAB reviewer will 
consider the written record forwarded by the district office and any 
additional evidence and/or argument submitted by the claimant. The 
reviewer may also conduct whatever investigation is deemed necessary.
    (1) The FAB reviewer will try to set the hearing at a place that is 
within commuting distance of the claimant's residence, but will not be 
able to do so in all cases. Therefore, for reasons of economy, the 
claimant may be required to travel a roundtrip distance of up to 200 
miles to attend the hearing.
    (2) In unusual circumstances, the FAB reviewer may set a place for 
the hearing that is more than 200 miles roundtrip from the claimant's 
residence. However, in that situation, OWCP will reimburse the claimant 
for reasonable and necessary travel expenses incurred to attend the 
hearing if he or she submits a written reimbursement request that 
documents such expenses.
    (b) Unless otherwise directed in writing by the claimant, the FAB 
reviewer will mail a notice of the time and place of the hearing to the 
claimant and any representative at least 30 days before the scheduled 
hearing date. If the claimant only objects to part of the recommended 
decision, the FAB reviewer may issue a final decision accepting the 
remaining part of the recommendation of the district office without 
first holding a hearing (see Sec.  30.316). Any objection that is not 
presented to the FAB reviewer, including any objection to HHS's 
reconstruction of the radiation dose to which the employee was exposed 
(if any), whether or not the pertinent issue was previously presented 
to the district office, is deemed waived for all purposes.
    (c) The hearing is an informal process, and the reviewer is not 
bound by common law or statutory rules of evidence, or by technical or 
formal rules of procedure. The reviewer may conduct the hearing in such 
manner as to best ascertain the rights of the claimant. During the 
hearing process, the claimant may state his or her arguments and 
present new written evidence and/or testimony in support of the claim.
    (d) Testimony at hearings is recorded, then transcribed and placed 
in the record. Oral testimony shall be made under oath.
    (e) The FAB reviewer will furnish a transcript of the hearing to 
the claimant, who has 20 days from the date it is sent to submit any 
comments to the reviewer.
    (f) The claimant will have 30 days after the hearing is held to 
submit additional evidence or argument, unless the reviewer, in his or 
her sole discretion, grants an extension. Only one such extension may 
be granted.
    (g) The reviewer determines the conduct of the hearing and may 
terminate the hearing at any time he or she determines that all 
relevant evidence has been obtained, or because of misbehavior on the 
part of the claimant and/or representative at or near the place of the 
oral presentation.


Sec.  30.315  May a claimant postpone a hearing?

    (a) The FAB will entertain any reasonable request for scheduling 
the time and place of the hearing, but such requests should be made at 
the time that the hearing is requested. Scheduling is at the discretion 
of the FAB, and is not reviewable. In most instances, once the hearing 
has been scheduled and appropriate written notice has been mailed, it 
cannot be postponed at the claimant's request for any reason except 
those stated in paragraph (b) of this section, unless the FAB reviewer 
can reschedule the hearing on the same docket (that is, during the same 
hearing trip). If a request to postpone a scheduled hearing does not 
meet one of the tests of paragraph (b) of this section and cannot be 
accommodated on the same docket, no further opportunity for a hearing 
will be provided. Instead, the FAB will consider the claimant's 
objections by means of a review of the written record. In the 
alternative, a teleconference may be substituted for the hearing at the 
discretion of the reviewer.
    (b) Where the claimant has a medical reason that prevents 
attendance at the hearing, or where the death or illness of the 
claimant's parent, spouse, or child prevents the claimant from 
attending the hearing as scheduled, a postponement may be granted in 
the discretion of the FAB if the claimant

[[Page 33622]]

provides at least 24 hours notice and a reasonable explanation 
supporting his or her inability to attend the scheduled hearing.
    (c) At any time after requesting a hearing, the claimant can 
request a change to a review of the written record by making a written 
request to the FAB. Once such a change is made, no further opportunity 
for a hearing will be provided.


Sec.  30.316  How does the FAB issue a final decision on a claim?

    (a) If the claimant does not file a written statement that objects 
to the recommended decision and/or requests a hearing within the period 
of time allotted in Sec.  30.310, or if the claimant waives any 
objections to all or part of the recommended decision, the FAB may 
issue a final decision accepting the recommendation of the district 
office, either in whole or in part (see Sec. Sec.  30.311, 30.312 and 
30.314(b)).
    (b) If the claimant objects to all or part of the recommended 
decision, the FAB reviewer will issue a final decision on the claim 
after either the hearing or the review of the written record, and after 
completing such further development of the case as he or she may deem 
necessary.
    (c) Any recommended decision (or part thereof) that is pending 
either a hearing or a review of the written record for more than one 
year from the date the FAB received the written statement that objected 
to the recommended decision and/or requested a hearing shall be 
considered a final decision of the FAB on the one-year anniversary of 
such date. Any recommended decision described in Sec.  30.311 that is 
pending at the FAB for more than one year from the date that the period 
of time described in Sec.  30.310 expired shall be considered a final 
decision of the FAB on the one-year anniversary of such date.
    (d) The decision of the FAB, whether issued pursuant to paragraph 
(a), (b) or (c) of this section, shall be final upon the date of 
issuance of such decision, unless a timely request for reconsideration 
under Sec.  30.319 has been filed.
    (e) A copy of the final decision of the FAB will be mailed to the 
claimant's last known address. However, if the claimant has a 
designated representative before OWCP, the copy of the final decision 
will be mailed to the representative. Notification to either the 
claimant or the representative will be considered notification to both 
parties.


Sec.  30.317  Can the FAB request a further response from the claimant 
or return a claim to the district office?

    At any time before the issuance of its final decision, the FAB may 
request that the claimant submit additional evidence or argument, or 
return the claim to the district office for further development and/or 
issuance of a new recommended decision without issuing a final 
decision, whether or not requested to do so by the claimant.


Sec.  30.318  Can the FAB consider objections to HHS's reconstruction 
of a radiation dose or to the guidelines OWCP uses to determine if a 
claimed cancer was at least as likely as not related to employment?

    (a) If the claimant objects to HHS's reconstruction of the 
radiation dose to which the employee was exposed, the FAB will evaluate 
the factual findings upon which HHS based its dose reconstruction. If 
these factual findings do not appear to be supported by substantial 
evidence, the claim will be returned to the district office for 
referral to HHS for further consideration.
    (b) The methodology used by HHS in arriving at reasonable estimates 
of the radiation doses received by an employee, established by 
regulations issued by HHS at 42 CFR part 82, is binding on the FAB. The 
FAB reviewer may determine, however, that objections concerning the 
application of that methodology should be considered by HHS and may 
return the case to the district office for referral to HHS for such 
consideration.
    (c) The methodology that OWCP uses to determine if a claimed cancer 
was at least as likely as not related to employment at a DOE facility, 
an atomic weapons employer facility, or a RECA section 5 facility, 
established by regulations issued by HHS at 42 CFR part 81, is also 
binding on the FAB (see Sec.  30.213). However, since OWCP applies this 
methodology when it makes these determinations, the FAB reviewer may 
consider objections to the manner in which OWCP applied HHS's 
regulatory guidelines.


Sec.  30.319  May a claimant request reconsideration of a final 
decision of the FAB?

    (a) A claimant may request reconsideration of a final decision of 
the FAB by filing a written request with the FAB within 30 days from 
the date of issuance of such decision. If a timely request for 
reconsideration is made, the decision in question will no longer be 
considered ``final'' under Sec.  30.316(d).
    (b) For purposes of determining whether the written request 
referred to in paragraph (a) of this section has been timely filed with 
the FAB, the request will be considered to be ``filed'' on the date 
that the claimant mails it to the FAB, as determined by postmark, or on 
the date that such written request is actually received by the FAB, 
whichever is the earliest determinable date.
    (c) A hearing is not available as part of the reconsideration 
process. If the FAB grants the request for reconsideration, it will 
consider the written record of the claim again and issue a new final 
decision on the claim. A new final decision that is issued after the 
FAB grants a request for reconsideration will be ``final'' upon the 
date of issuance of such new decision.
    (1) Instead of issuing a new final decision after granting a 
request for reconsideration, the FAB may return the claim to the 
district office for further development as provided in Sec.  30.317.
    (2) If the FAB denies the request for reconsideration, the FAB 
decision that formed the basis for the request will be considered 
``final'' upon the date the request is denied, and no further requests 
for reconsideration of that particular final decision of the FAB will 
be entertained.
    (d) A claimant may not seek judicial review of a decision on his or 
her claim under EEOICPA until OWCP's decision on the claim is final 
pursuant to either Sec.  30.316(d) (for claims in which no request for 
reconsideration was filed with the FAB) or paragraph (c) of this 
section (for claims in which a request for reconsideration was filed 
with the FAB).

Reopening Claims


Sec.  30.320  Can a claim be reopened after the FAB has issued a final 
decision?

    (a) At any time after the FAB has issued a final decision pursuant 
to Sec.  30.316, and without regard to whether new evidence or 
information is presented or obtained, the Director for Energy Employees 
Occupational Illness Compensation may reopen a claim and return it to 
the FAB for issuance of a new final decision, or to the district office 
for such further development as may be necessary, to be followed by a 
new recommended decision. The Director may also vacate any other type 
of decision issued by the FAB.
    (b) At any time after the FAB has issued a final decision pursuant 
to Sec.  30.316, a claimant may file a written request that the 
Director for Energy Employees Occupational Illness Compensation reopen 
his or her claim, provided that the claimant also submits new evidence 
of either covered employment or exposure to a toxic substance, or 
identifies either a change in the PoC guidelines, a change in the

[[Page 33623]]

dose reconstruction methods or an addition of a class of employees to 
the Special Exposure Cohort.
    (1) If the Director concludes that the evidence submitted or matter 
identified in support of the claimant's request is material to the 
claim, the Director will reopen the claim and return it to the district 
office for such further development as may be necessary, to be followed 
by a new recommended decision.
    (2) New evidence of a medical condition described in subpart C of 
these regulations is not sufficient to support a written request to 
reopen a claim for such a condition under paragraph (b) of this 
section.
    (c) The decision whether or not to reopen a claim under this 
section is solely within the discretion of the Director for Energy 
Employees Occupational Illness Compensation and is not reviewable. If 
the Director reopens a claim pursuant to paragraphs (a) or (b) of this 
section and returns it to the district office, the resulting new 
recommended decision will be subject to the adjudicatory process 
described in this subpart. However, neither the district office nor the 
FAB can consider any objection concerning the Director's decision to 
reopen a claim under this section.

Subpart E--Medical and Related Benefits

Medical Treatment and Related Issues


Sec.  30.400  What are the basic rules for obtaining medical treatment?

    (a) A covered Part B employee or a covered Part E employee who fits 
into at least one of the compensable claim categories described in 
subpart C of this part is entitled to receive all medical services, 
appliances or supplies that a qualified physician prescribes or 
recommends and that OWCP considers necessary to treat his or her 
occupational illness or covered illness, retroactive to the date the 
claim for benefits for that occupational illness or covered illness 
under Part B or Part E of EEOICPA was filed. The employee need not be 
disabled to receive such treatment. When a survivor receives payment, 
OWCP will pay for such treatment if the employee died before the claim 
was paid. If there is any doubt as to whether a specific service, 
appliance or supply is necessary to treat the occupational illness or 
covered illness, the employee should consult OWCP prior to obtaining 
it.
    (b) The decision of OWCP that medical benefits provided under 
paragraph (a) of this section are not necessary to treat an 
occupational illness or covered illness is final when issued and is not 
subject to the adjudicatory process described in subpart D of this 
part.
    (c) Any qualified physician or qualified hospital may provide 
medical services, appliances and supplies to the covered Part B 
employee or the covered Part E employee. A qualified provider of 
medical support services may also furnish appropriate services, 
appliances, and supplies. OWCP may apply a test of cost-effectiveness 
when it decides if appliances and supplies are necessary to treat an 
occupational illness or covered illness. With respect to prescribed 
medications, OWCP may require the use of generic equivalents where they 
are available.


Sec.  30.401  What are the special rules for the services of 
chiropractors?

    (a) The services of chiropractors that may be reimbursed by OWCP 
are limited to treatment to correct a spinal subluxation. The costs of 
physical and related laboratory tests performed by or required by a 
chiropractor to diagnose such a subluxation are also payable.
    (b) A diagnosis of spinal subluxation as demonstrated by x-ray to 
exist must appear in the chiropractor's report before OWCP can consider 
payment of a chiropractor's bill.
    (c) A chiropractor may interpret his or her x-rays to the same 
extent as any other physician. To be given any weight, the medical 
report must state that x-rays support the finding of spinal 
subluxation. OWCP will not necessarily require submission of the x-ray, 
or a report of the x-ray, but the report must be available for 
submission on request.
    (d) A chiropractor may also provide services in the nature of 
physical therapy under the direction of a qualified physician.


Sec.  30.402  What are the special rules for the services of clinical 
psychologists?

    A clinical psychologist may serve as a physician within the scope 
of his or her practice as defined by state law. Therefore, a clinical 
psychologist may not serve as a physician for conditions that include a 
physical component unless the applicable state law allows clinical 
psychologists to treat physical conditions. A clinical psychologist may 
also perform testing, evaluation, and other services under the 
direction of a qualified physician.


Sec.  30.403  Will OWCP pay for the services of an attendant?

    OWCP will authorize payment for personal care services under 
section 7384t of the Act, whether or not such care includes medical 
services, so long as the personal care services have been determined to 
be medically necessary and are provided by a home health aide, licensed 
practical nurse, or similarly trained individual. The decision of OWCP 
that personal care services are not medically necessary is final when 
issued and is not subject to the adjudicatory process described in 
subpart D of this part.


Sec.  30.404  Will OWCP pay for transportation to obtain medical 
treatment?

    (a) The employee is entitled to reimbursement for reasonable and 
necessary expenses, including transportation, incident to obtaining 
authorized medical services, appliances or supplies. To determine what 
is a reasonable distance to travel, OWCP will consider the availability 
of services, the employee's condition, and the means of transportation. 
Generally, a roundtrip distance of up to 200 miles is considered a 
reasonable distance to travel.
    (b) If travel of more than 200 miles is contemplated, or air 
transportation or overnight accommodations will be needed, the employee 
must submit a written request to OWCP for prior authorization with 
information describing the circumstances and necessity for such travel 
expenses. OWCP will approve the request if it determines that the 
travel expenses are reasonable and necessary, and are incident to 
obtaining authorized medical services, appliances or supplies. Requests 
for travel expenses that are often approved include those resulting 
from referrals to a specialist for further medical treatment, and those 
involving air transportation of an employee who lives in a remote 
geographical area with limited local medical services.
    (c) The decision of OWCP that requested travel expenses are either 
not reasonable or necessary, or are not incident to obtaining 
authorized medical services, appliances or supplies, is final when 
issued and is not subject to the adjudicatory process described in 
subpart D of this part.
    (d) The standard form designated for medical travel refund requests 
is Form OWCP-957 and must be used to seek reimbursement under this 
section. This form can be obtained from OWCP.


Sec.  30.405  After selecting a treating physician, may an employee 
choose to be treated by another physician instead?

    (a) OWCP will provide the employee with an opportunity to designate 
a treating physician when it accepts the claim. When the physician 
originally selected to provide treatment for an occupational illness or 
a covered illness

[[Page 33624]]

refers the employee to a specialist for further medical care, the 
employee need not consult OWCP for approval. In all other instances, 
however, the employee must submit a written request to OWCP with his or 
her reasons for desiring a change of physician.
    (b) OWCP will approve the request if it determines that the reasons 
submitted are sufficient. Requests that are often approved include 
those for transfer of care from a general practitioner to a physician 
who specializes in treating the occupational illnesses or covered 
illnesses covered by EEOICPA, or the need for a new physician when an 
employee has moved.
    (c) The decision of OWCP that insufficient reasons for a change of 
physician have been submitted is final when issued and is not subject 
to the adjudicatory process described in subpart D of this part.


Sec.  30.406  Are there any exceptions to these procedures for 
obtaining medical care?

    In cases involving emergencies or unusual circumstances, OWCP may 
authorize treatment in a manner other than as stated in this subpart.

Directed Medical Examinations


Sec.  30.410  Can OWCP require an employee to be examined by another 
physician?

    (a) OWCP sometimes needs a second opinion from a medical 
specialist. The employee must submit to examination by a qualified 
physician as often and at such times and places as OWCP considers 
reasonably necessary. Also, OWCP may send a case file for second 
opinion review where an actual examination is not needed, or where the 
employee is deceased.
    (b) If the initial examination is disrupted by someone accompanying 
the employee, OWCP will schedule another examination with a different 
qualified physician. The employee will not be entitled to have anyone 
else present at the subsequent examination unless OWCP decides that 
exceptional circumstances exist. For example, where a hearing-impaired 
employee needs an interpreter, the presence of an interpreter would be 
allowed.


Sec.  30.411  What happens if the opinion of the physician selected by 
OWCP differs from the opinion of the physician selected by the 
employee?

    (a) If one medical opinion holds more probative value than the 
other, OWCP will base its determination of coverage on the medical 
opinion with the greatest probative value. A difference in medical 
opinion sufficient to be considered a conflict only occurs when two 
reports of virtually equal weight and rationale reach opposing 
conclusions.
    (b) If a conflict exists between the medical opinion of the 
employee's physician and the medical opinion of a second opinion 
physician, an OWCP medical adviser or consultant, or a physician 
submitting an impairment evaluation that meets the criteria set out in 
Sec.  30.905 of this part, OWCP shall appoint a third physician to make 
an examination. This is called a referee examination. OWCP will select 
a physician who is qualified in the appropriate specialty and who has 
had no prior connection with the case. Also, a case file may be sent 
for referee medical review where there is no need for an actual 
examination, or where the employee is deceased.
    (c) If the initial referee examination is disrupted by someone 
accompanying the employee, OWCP will schedule another examination with 
a different qualified physician. The employee will not be entitled to 
have anyone else present at the subsequent referee examination unless 
OWCP decides that exceptional circumstances exist. For example, where a 
hearing-impaired employee needs an interpreter, the presence of an 
interpreter would be allowed.


Sec.  30.412  Who pays for second opinion and referee examinations?

    OWCP will pay second opinion and referee medical specialists 
directly. OWCP will also reimburse the employee for all necessary and 
reasonable expenses incident to such an examination, including 
transportation costs and actual wages the employee lost for the time 
needed to submit to an examination required by OWCP.

Medical Reports


Sec.  30.415  What are the requirements for medical reports?

    In general, medical reports from the employee's attending physician 
should include the following:
    (a) Dates of examination and treatment;
    (b) History given by the employee;
    (c) Physical findings;
    (d) Results of diagnostic tests;
    (e) Diagnosis;
    (f) Course of treatment;
    (g) A description of any other conditions found due to the claimed 
occupational illness or covered illness;
    (h) The treatment given or recommended for the claimed occupational 
illness or covered illness; and
    (i) All other material findings.


Sec.  30.416  How and when should medical reports be submitted?

    (a) The initial medical report (and any subsequent reports) should 
be made in narrative form on the physician's letterhead stationery. The 
physician should use Form EE-7 as a guide for the preparation of his or 
her initial medical report in support of a claim under Part B and/or 
Part E of EEOICPA. The report should bear the physician's signature or 
signature stamp. OWCP may require an original signature on the report.
    (b) The report shall be submitted directly to OWCP as soon as 
possible after medical examination or treatment is received, either by 
the employee or the physician.


Sec.  30.417  What additional medical information may OWCP require to 
support continuing payment of benefits?

    In all cases requiring hospital treatment or prolonged care, OWCP 
will request detailed narrative reports from the attending physician at 
periodic intervals. The physician will be asked to describe continuing 
medical treatment for the occupational illness or covered illness 
accepted by OWCP, a prognosis, and the physician's opinion as to the 
continuing causal relationship between the need for additional 
treatment and the occupational illness or covered illness.

Medical Bills


Sec.  30.420  How should medical bills and reimbursement requests be 
submitted?

    Usually, medical providers submit their bills directly for 
processing. The rules for submitting and processing provider bills and 
reimbursement requests are stated in subpart H of this part. An 
employee requesting reimbursement for out-of-pocket medical expenses 
must submit a Form OWCP-915 and meet the requirements described in 
Sec.  30.702.


Sec.  30.421  What are the time frames for submitting bills and 
reimbursement requests?

    To be considered for payment, bills and reimbursement requests must 
be submitted by the end of the calendar year after the year when the 
expense was incurred, or by the end of the calendar year after the year 
when OWCP first accepted the claim as compensable under subpart D of 
this part, whichever is later.


Sec.  30.422  If an employee is only partially reimbursed for a medical 
expense, must the provider refund the balance of the amount paid to the 
employee?

    (a) The OWCP fee schedule sets maximum limits on the amounts 
payable for many services. The

[[Page 33625]]

employee may be only partially reimbursed for out-of-pocket medical 
expenses because the amount he or she paid to the medical provider for 
a service exceeds the maximum allowable charge set by the OWCP fee 
schedule.
    (b) If this happens, the employee will be advised of the maximum 
allowable charge for the service in question and of his or her 
responsibility to ask the provider to refund to the employee, or credit 
to the employee's account, the amount he or she paid that exceeds the 
maximum allowable charge. The provider that the employee paid, but not 
the employee, may request reconsideration of the fee determination as 
set forth in Sec.  30.712.
    (c) If the provider does not refund to the employee or credit to 
his or her account the amount of money paid in excess of the charge 
that OWCP allows, the employee should submit documentation of the 
attempt to obtain such refund or credit to OWCP. OWCP may authorize 
reasonable reimbursement to the employee after reviewing the facts and 
circumstances of the case.

Subpart F--Survivors; Payments and Offsets; Overpayments

Survivors


Sec.  30.500  What special statutory definitions apply to survivors 
under EEOICPA?

    (a) For the purposes of paying compensation to survivors under both 
Parts B and E of EEOICPA, OWCP will use the following definitions:
    (1) Surviving spouse means the wife or husband of a deceased 
covered Part B employee or deceased covered Part E employee who was 
married to that individual for the 365 consecutive days immediately 
prior to the death of that individual.
    (2) Child or children includes a recognized natural child of a 
deceased covered Part B employee or deceased covered Part E employee, a 
stepchild who lived with that individual in a regular parent-child 
relationship, and an adopted child of that individual. However, to be a 
``covered'' child under Part E only, such child must have been, as of 
the date of the deceased covered Part E employee's death, either under 
the age of 18 years, or under the age of 23 years and a full-time 
student who was continuously enrolled in one or more educational 
institutions since attaining the age of 18 years, or any age and 
incapable of self-support.
    (b) For the purposes of paying compensation to survivors only under 
Part B of EEOICPA, OWCP will use the following additional definitions:
    (1) Parent includes fathers and mothers of a deceased covered Part 
B employee through adoption.
    (2) Grandchild means a child of a child of a deceased covered Part 
B employee.
    (3) Grandparent means a parent of a parent of a deceased covered 
Part B employee.


Sec.  30.501  What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under EEOICPA?

    (a) Under Part B of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part B employee who would otherwise have been entitled to 
benefits is deceased, that compensation will be disbursed as follows, 
subject to the qualifications set forth in Sec.  30.5(gg)(3):
    (1) If there is a surviving spouse, the compensation shall be paid 
to that individual.
    (2) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all children of the deceased covered Part B 
employee.
    (3) If there is no surviving spouse and no children, the 
compensation shall be paid in equal shares to the parents of the 
deceased covered Part B employee.
    (4) If there is no surviving spouse, no children and no parents, 
the compensation shall be paid in equal shares to all grandchildren of 
the deceased covered Part B employee.
    (5) If there is no surviving spouse, no children, no parents and no 
grandchildren, the compensation shall be paid in equal shares to the 
grandparents of the deceased covered Part B employee.
    (6) Notwithstanding paragraphs (a)(1) through (a)(5) of this 
section, if there is a surviving spouse and at least one child of the 
deceased covered Part B employee who is a minor at the time of payment 
and who is not a recognized natural child or adopted child of such 
surviving spouse, half of the compensation shall be paid to the 
surviving spouse, and the other half of the compensation shall be paid 
in equal shares to each child of the deceased covered Part B employee 
who is a minor at the time of payment.
    (b) Under Part E of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part E employee who would otherwise have been entitled to 
benefits is deceased, that compensation will be disbursed as follows, 
subject to the qualifications set forth in Sec.  30.5(gg)(3):
    (1) If there is a surviving spouse, the compensation shall be paid 
to that individual.
    (2) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all ``covered'' children of the deceased covered 
Part E employee.
    (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, 
if there is a surviving spouse and at least one ``covered'' child of 
the deceased covered Part E employee who is living at the time of 
payment and who is not a recognized natural child or adopted child of 
such surviving spouse, then half of such payment shall be made to such 
surviving spouse, and the other half of such payment shall be made in 
equal shares to each ``covered'' child of the employee who is living at 
the time of payment.


Sec.  30.502  When is entitlement for survivors determined for purposes 
of EEOICPA?

    Entitlement to any lump-sum payment for survivors under EEOICPA, 
other than for ``covered'' children under Part E, will be determined as 
of the time OWCP makes such a payment. As noted in Sec.  30.500(a)(2), 
a child of a deceased Part E employee will only qualify as a 
``covered'' child of that individual if he or she satisfied one of the 
additional statutory criteria for a ``covered'' child as of the date of 
the deceased Part E employee's death.

Payment of Claims and Offset for Certain Payments


Sec.  30.505  What procedures will OWCP follow before it pays any 
compensation?

    (a) In cases involving the approval of a claim, whether in whole or 
in part, OWCP shall take all necessary steps to determine the amount of 
any offset or coordination of EEOICPA benefits before paying any 
benefits, and to verify the identity of the covered Part B employee, 
the covered Part E employee, or the eligible surviving beneficiary or 
beneficiaries. To perform these tasks, OWCP may conduct any 
investigation, require any claimant to provide or execute any 
affidavit, record or document, or authorize the release of any 
information as OWCP deems necessary to ensure that the compensation 
payment is made in the correct amount and to the correct person or 
persons. OWCP shall also require every claimant under Part B of the Act 
to execute and provide any necessary affidavit described in Sec.  
30.620. Should a claimant fail or refuse to execute an affidavit or 
release of information, or fail or refuse to provide a requested 
document or record or to provide access to information, such failure or 
refusal may be deemed to be a rejection of the

[[Page 33626]]

payment, unless the claimant does not have and cannot obtain the legal 
authority to provide, release, or authorize access to the required 
information, records, or documents.
    (b) To determine the amount of any offset, OWCP shall require the 
covered Part B employee, covered Part E employee or each eligible 
surviving beneficiary filing a claim under this part to execute and 
provide an affidavit (or declaration made under oath on Form EE-1 or 
EE-2) reporting the amount of any payment made pursuant to a final 
judgment or settlement in litigation seeking damages for any 
occupational illness or covered illness for which benefits are payable 
under EEOICPA. Even if someone other than the covered Part B employee 
or the covered Part E employee receives a payment pursuant to a final 
judgment or settlement in litigation seeking damages for any 
occupational illness or covered illness for which benefits are payable 
under EEOICPA (e.g., the surviving spouse of a deceased covered Part B 
employee or a deceased covered Part E employee), the receipt of any 
such payment must be reported since it may constitute a payment solely 
for an occupational illness or covered illness for which benefits are 
payable under EEOICPA.
    (1) For the purposes of this paragraph (b) only, ``litigation 
seeking damages'' refers to any request or demand for money by the 
covered Part B employee or the covered Part E employee, or by another 
individual if the covered Part B employee or the covered Part E 
employee is deceased, made or sought in a civil action or in 
anticipation of the filing of a civil action, for any occupational 
illness or covered illness for which benefits are payable under 
EEOICPA. This term does not also include any request or demand for 
money made or sought pursuant to a life insurance or health insurance 
contract, or any request or demand for money made or sought by an 
individual other than the covered Part B employee or the covered Part E 
employee in that individual's own right (e.g., a spouse's claim for 
loss of consortium), or any request or demand for money made or sought 
by the covered Part B employee or the covered Part E employee (or the 
estate of a deceased covered Part B employee or deceased covered Part E 
employee) not for any occupational illness or covered illness for which 
benefits are payable under the EEOICPA (e.g., a covered Part B 
employee's or a covered Part E employee's claim for damage to real or 
personal property).
    (2) If a payment has been made pursuant to a final judgment or 
settlement in litigation seeking damages, OWCP shall subtract a portion 
of the dollar amount of such payment from the benefit payments to be 
made under EEOICPA. OWCP will calculate the amount to be subtracted 
from the benefit payments in the following manner:
    (i) OWCP will first determine the value of the payment made 
pursuant to either a final judgment or settlement in litigation seeking 
damages by adding the dollar amount of any monetary damages (excluding 
contingent awards) and any medical expenses for treatment provided on 
or after the date the covered Part B employee or the covered Part E 
employee filed a claim for EEOICPA benefits that were paid for under 
the final judgment or settlement. In the event that these payments 
include a ``structured'' settlement (where a party makes an initial 
cash payment and also arranges, usually through the purchase of an 
annuity, for payments in the future), OWCP will usually accept the cost 
of the annuity to the purchaser as the dollar amount of the right to 
receive the future payments.
    (ii) OWCP will then make certain deductions from the above dollar 
amount to arrive at the dollar amount to be subtracted from any unpaid 
EEOICPA benefits. Allowable deductions consist of attorney's fees OWCP 
deems reasonable, and itemized costs of suit (out-of-pocket 
expenditures not part of the normal overhead of a law firm's operation 
like filing fees, travel expenses, witness fees, and court reporter 
costs for transcripts) provided that adequate supporting documentation 
is submitted to OWCP.
    (iii) The EEOICPA benefits that will be reduced will consist of any 
unpaid lump-sum payments payable in the future and medical benefits 
payable in the future. In those cases where it has not yet paid EEOICPA 
benefits, OWCP will reduce such benefits on a dollar-for-dollar basis, 
beginning with the lump-sum payments first. If the amount to be 
subtracted exceeds the lump-sum payments, OWCP will reduce ongoing 
EEOICPA medical benefits payable in the future by the amount of any 
remaining surplus. This means that OWCP will apply the amount it would 
otherwise pay to reimburse the covered Part B employee or the covered 
Part E employee for any ongoing EEOICPA medical treatment to the 
remaining surplus until it is absorbed. In addition to this reduction 
of ongoing EEOICPA medical benefits, OWCP will not be the first payer 
for any medical expenses that are the responsibility of another party 
(who will instead be the first payer) as part of a final judgment or 
settlement in litigation seeking damages.
    (3) The above reduction of EEOICPA benefits will not occur if an 
EEOICPA claimant has had his or her workers' compensation benefits or 
award under section 5 of RECA reduced by the full amount of a payment 
made pursuant to a final judgment or settlement in litigation seeking 
damages. The above reduction will also not occur if an EEOICPA 
claimant's prior payment of EEOICPA benefits was offset to reflect the 
full amount of a payment made pursuant to a final judgment or 
settlement in litigation seeking damages. In those situations, OWCP 
will not reduce currently payable EEOICPA benefits by the same amount 
(but will reduce those benefits by the amount of any surplus final 
judgment or settlement payment that remains).
    (c) Except as provided in Sec.  30.506(b), when OWCP has verified 
the identity of every claimant who is entitled to the compensation 
payment, or to a share of the compensation payment, and has determined 
the correct amount of the payment or the share of the payment, OWCP 
shall notify every claimant, every duly appointed guardian or 
conservator of a claimant, or every person with power of attorney for a 
claimant, and require such person or persons to complete a Form EN-20 
providing payment information. Such form shall be signed and returned 
to OWCP within sixty days of the date of the form or within such 
greater period as may be allowed by OWCP. Failure to sign and return 
the form within the required time may be deemed to be a rejection of 
the payment. If the claimant dies before the payment is received, the 
person who receives the payment shall return it to OWCP for 
redetermination of the correct disbursement of the payment. No payment 
shall be made until OWCP has made a determination concerning the 
survivors related to a respective claim for benefits.
    (d) The total amount of compensation (other than medical benefits) 
under Part E that can be paid to all claimants as a result of the 
exposure of a covered Part E employee shall not be more than $250,000 
in any circumstances.


Sec.  30.506  To whom and in what manner will OWCP pay compensation?

    (a) Except with respect to claims under Part B of the Act for 
beryllium sensitivity, payment shall be made to the covered Part B 
employee or the covered Part E employee, to the duly appointed guardian 
or conservator of that individual, or to the person with power of 
attorney for that individual, unless the covered Part B employee or 
covered Part E employee is deceased at the time of the payment. In all 
cases

[[Page 33627]]

involving a deceased covered Part B employee or deceased covered Part E 
employee, payment shall be made to the eligible surviving beneficiary 
or beneficiaries, to the duly appointed guardian or conservator of the 
eligible surviving beneficiary or beneficiaries, or to every person 
with power of attorney for an eligible surviving beneficiary, in 
accordance with the terms and conditions specified in sections 
7384s(e), 7384u(e), and 7385s-3(c) and (d) of EEOICPA.
    (b) Under Part B of the Act, compensation for any consequential 
injury, illness, impairment or disease is limited to payment of medical 
benefits for that injury, illness, impairment or disease. Under Part E 
of the Act, compensation for any consequential injury, illness, 
impairment or disease consists of medical benefits for that injury, 
illness, impairment or disease, as well as any additional monetary 
benefits that are consistent with the terms of Sec.  30.505(d).
    (c) Rejected compensation payments, or shares of compensation 
payments, shall not be distributed to other eligible surviving 
beneficiaries, but shall be returned to the Fund.
    (d) No covered Part B employee may receive more than one lump-sum 
payment under Part B of EEOICPA for any occupational illnesses he or 
she contracted. However, any individual, including a covered Part B 
employee who has received a lump-sum payment for his or her own 
occupational illness or illnesses, may receive one lump-sum payment for 
each deceased covered Part B employee for whom he or she qualifies as 
an eligible surviving beneficiary under Part B of the Act.


Sec.  30.507  What compensation will be provided to covered Part B 
employees who only establish beryllium sensitivity under Part B of 
EEOICPA?

    The establishment of beryllium sensitivity does not entitle a 
covered Part B employee, or the eligible surviving beneficiary or 
beneficiaries of a deceased covered Part B employee, to any lump-sum 
payment provided for under Part B. Instead, a covered Part B employee 
whose sole accepted occupational illness is beryllium sensitivity shall 
receive beryllium sensitivity monitoring, as well as medical benefits 
for the treatment of this occupational illness in accordance with Sec.  
30.400.


Sec.  30.508  What is beryllium sensitivity monitoring?

    Beryllium sensitivity monitoring shall consist of medical 
examinations to confirm and monitor the extent and nature of a covered 
Part B employee's beryllium sensitivity. Monitoring shall also include 
regular medical examinations, with diagnostic testing, to determine if 
the covered Part B employee has established chronic beryllium disease.


Sec.  30.509  Under what circumstances may a survivor claiming under 
Part E of the Act choose to receive the benefits that would otherwise 
be payable to a covered Part E employee who is deceased?

    (a) If a covered Part E employee dies after filing a claim but 
before monetary benefits are paid under Part E of the Act, and his or 
her death is from a cause other than a covered illness, his or her 
survivor can choose to receive either the survivor benefits payable on 
account of the death of that covered Part E employee, or the monetary 
benefits that would otherwise have been payable to the covered Part E 
employee.
    (b) For the purposes of this section only, a death ``from a cause 
other than a covered illness'' refers only to a death that was solely 
caused by a non-covered illness or illnesses. Therefore, the choice 
referred to in paragraph (a) of this section will not be available if a 
covered illness contributed to the death of the covered Part E employee 
in any manner. In those instances, survivor benefits will still be 
payable to the claimant, but he or she cannot choose to receive the 
monetary benefits that would have otherwise been payable to the 
deceased covered Part E employee in lieu of survivor benefits.
    (c) OWCP only makes impairment determinations based on rationalized 
medical evidence in the case file that is sufficiently detailed and 
meets the various requirements for the many different types of 
impairment determinations possible under the AMA's Guides. Therefore, 
OWCP will only make an impairment determination for a deceased covered 
Part E employee pursuant to this section if the medical evidence of 
record is sufficient to satisfy the pertinent requirements in the AMA's 
Guides and subpart J of this part.

Overpayments


Sec.  30.510  How does OWCP notify an individual of a payment made on a 
claim?

    (a) In addition to providing narrative descriptions to recipients 
of benefits paid or payable, OWCP includes on each check a clear 
indication of the reason the payment is being made. For payments sent 
by electronic funds transfer, a notification of the date and amount of 
payment appears on the statement from the recipient's financial 
institution.
    (b) By these means, OWCP puts the recipient on notice that a 
payment was made and the amount of the payment. If the amount received 
differs from the amount indicated on the written notice or bank 
statement, the recipient is responsible for notifying OWCP of the 
difference. Absent affirmative evidence to the contrary, the recipient 
will be presumed to have received the notice of payment, whether mailed 
or transmitted electronically.


Sec.  30.511  What is an ``overpayment'' for purposes of EEOICPA?

    An ``overpayment'' is any amount of compensation paid under 
sections 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the EEOICPA to a 
recipient that constitutes, as of the time OWCP makes such payment:
    (a) Payment where no amount is payable under this part; or
    (b) Payment in excess of the correct amount determined by OWCP.


Sec.  30.512  What does OWCP do when an overpayment is identified?

    Before seeking to recover an overpayment or adjust benefits, OWCP 
will advise the recipient of the overpayment in writing that:
    (a) The overpayment exists, and the amount of overpayment;
    (b) A preliminary finding shows either that the recipient was or 
was not at fault in the creation of the overpayment;
    (c) He or she has the right to inspect and copy OWCP records 
relating to the overpayment; and
    (d) He or she has the right to present written evidence which 
challenges the fact or amount of the overpayment, and/or challenges the 
preliminary finding that he or she was at fault in the creation of the 
overpayment. He or she may also request that recovery of the 
overpayment be waived. Any submission of evidence or request that 
recovery of the overpayment be waived must be presented to OWCP within 
30 days of the date of the written notice of overpayment.


Sec.  30.513  Under what circumstances may OWCP waive recovery of an 
overpayment?

    (a) OWCP may consider waiving recovery of an overpayment only if 
the recipient was not at fault in accepting or creating the 
overpayment. Recipients of benefits paid under EEOICPA are responsible 
for taking all reasonable measures to ensure that payments received 
from OWCP are proper. The recipient must show good faith and exercise a 
high degree of care in reporting events which may affect entitlement to 
or the amount of benefits. A recipient who has done any of the

[[Page 33628]]

following will be found to be at fault with respect to creating an 
overpayment:
    (1) Made an incorrect statement as to a material fact which he or 
she knew or should have known to be incorrect; or
    (2) Failed to provide information which he or she knew or should 
have known to be material; or
    (3) Accepted a payment which he or she knew or should have known to 
be incorrect. (This provision applies only to the overpaid individual.)
    (b) Whether or not OWCP determines that a recipient was at fault 
with respect to the creation of an overpayment depends on the 
circumstances surrounding the overpayment. The degree of care expected 
may vary with the complexity of those circumstances and the recipient's 
capacity to realize that he or she is being overpaid.


Sec.  30.514  If OWCP finds that the recipient of an overpayment was 
not at fault, what criteria are used to decide whether to waive 
recovery of it?

    If OWCP finds that the recipient of an overpayment was not at 
fault, repayment will still be required unless:
    (a) Adjustment or recovery of the overpayment would defeat the 
purpose of the Act (see Sec.  30.516); or
    (b) Adjustment or recovery of the overpayment would be against 
equity and good conscience (see Sec.  30.517).


Sec.  30.515  Is a recipient responsible for an overpayment that 
resulted from an error made by OWCP?

    (a) The fact that OWCP may have erred in making the overpayment 
does not by itself relieve the recipient of the overpayment from 
liability for repayment if the recipient also was at fault in accepting 
the overpayment.
    (b) However, OWCP may find that the recipient was not at fault if 
failure to report an event affecting compensation benefits, or 
acceptance of an incorrect payment, occurred because:
    (1) The recipient relied on misinformation given in writing by OWCP 
regarding the interpretation of a pertinent provision of EEOICPA or 
this part; or
    (2) OWCP erred in calculating either the percentage of impairment 
or wage-loss under Part E of EEOICPA.


Sec.  30.516  Under what circumstances would recovery of an overpayment 
defeat the purpose of the Act?

    Recovery of an overpayment will defeat the purpose of the Act if 
such recovery would cause hardship to the recipient because:
    (a) The recipient from whom OWCP seeks recovery needs substantially 
all of his or her current income to meet current ordinary and necessary 
living expenses; and
    (b) The recipient's assets do not exceed two months' expenditures 
as determined by OWCP using the Bureau of Labor Statistics Consumer 
Expenditure Survey tables.


Sec.  30.517  Under what circumstances would recovery of an overpayment 
be against equity and good conscience?

    (a) Recovery of an overpayment is considered to be against equity 
and good conscience when the recipient would experience severe 
financial hardship in attempting to repay the debt.
    (b) Recovery of an overpayment is also considered to be against 
equity and good conscience when the recipient, in reliance on such 
payments or on notice that such payments would be made, gives up a 
valuable right or changes his or her position for the worse. In making 
such a decision, OWCP does not consider the recipient's current ability 
to repay the overpayment.
    (1) To establish that a valuable right has been relinquished, it 
must be shown that the right was in fact valuable, that it cannot be 
regained, and that the action was based chiefly or solely in reliance 
on the payments or on the notice of payment. Gratuitous transfers of 
funds to other individuals are not considered relinquishments of 
valuable rights.
    (2) To establish that a recipient's position has changed for the 
worse, it must be shown that the decision made would not otherwise have 
been made but for the receipt of benefits, and that this decision 
resulted in a loss.


Sec.  30.518  Can OWCP require the recipient of the overpayment to 
submit additional financial information?

    (a) The recipient of the overpayment is responsible for providing 
information about income, expenses and assets as specified by OWCP. 
This information is needed to determine whether or not recovery of an 
overpayment would defeat the purpose of the Act, or would be against 
equity and good conscience. This information will also be used to 
determine the repayment schedule, if necessary.
    (b) Failure to submit this requested information within 30 days of 
the request shall result in denial of waiver, and no further request 
for waiver shall be considered until the requested information is 
furnished.


Sec.  30.519  How does OWCP communicate its final decision concerning 
recovery of an overpayment?

    (a) After considering any written documentation or argument 
submitted to OWCP within the 30-day period set out in Sec.  30.512(d), 
OWCP will issue a final decision on the overpayment. OWCP will send a 
copy of the final decision to the individual from whom recovery is 
sought and his or her representative, if any.
    (b) The provisions of subpart D of this part do not apply to any 
decision regarding the recovery of an overpayment.


Sec.  30.520  How are overpayments collected?

    (a) When an overpayment has been made to a recipient who is 
entitled to further payments, the recipient shall refund to OWCP the 
amount of the overpayment as soon as the error is discovered or his or 
her attention is called to same. If no refund is made, OWCP shall 
recover the overpayment by reducing any further lump-sum payments due 
currently or in the future, taking into account the financial 
circumstances of the recipient, and any other relevant factors, so as 
to minimize any hardship. Should the recipient die before collection 
has been completed, further collection shall be made by decreasing 
later payments, if any, payable under EEOICPA with respect to the 
underlying occupational illness or covered illness.
    (b) When an overpayment has been made to a recipient and OWCP is 
unable to recover the overpayment by reducing compensation due 
currently, the recipient shall refund to OWCP the amount of the 
overpayment as soon as the error is discovered or his or her attention 
is called to same. The overpayment is subject to the provisions of the 
Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et 
seq.), and may be reported to the Internal Revenue Service as income. 
If the recipient fails to make such refund, OWCP may recover the 
overpayment through any available means, including offset of salary, 
annuity benefits, or other Federal payments, including tax refunds as 
authorized by the Tax Refund Offset Program, or referral of the debt to 
a collection agency or to the Department of Justice.

Subpart G--Special Provisions

Representation


Sec.  30.600  May a claimant designate a representative?

    (a) The claims process under this part is informal, and OWCP acts 
as an impartial evaluator of the evidence. A claimant need not be 
represented to file a claim or receive a payment. Nevertheless, a 
claimant may appoint one individual to represent his or her

[[Page 33629]]

interests, but the appointment must be in writing.
    (b) There can be only one representative at any one time, so after 
one representative has been properly appointed, OWCP will not recognize 
another individual as a representative until the claimant withdraws the 
authorization of the first individual. In addition, OWCP will recognize 
only certain types of individuals (see Sec.  30.601).
    (c) A properly appointed representative who is recognized by OWCP 
may make a request or give direction to OWCP regarding the claims 
process, including a hearing. This authority includes presenting or 
eliciting evidence, making arguments on facts or the law, and obtaining 
information from the case file, to the same extent as the claimant.
    (1) Any notice requirement contained in this part or EEOICPA is 
fully satisfied if served on the representative, and has the same force 
and effect as if sent to the claimant.
    (2) A representative does not have authority to complete and sign 
the Form EN-20, described in Sec.  30.505(c), which collects 
information necessary for issuance of a compensation payment.


Sec.  30.601  Who may serve as a representative?

    A claimant may authorize any individual to represent him or her in 
regard to a claim under EEOICPA, unless that individual's service as a 
representative would violate any applicable provision of law (such as 
18 U.S.C. 205 and 208). A federal employee may act as a representative 
only:
    (a) On behalf of immediate family members, defined as a spouse, 
children, parents, and siblings of the representative, provided no fee 
or gratuity is charged; or
    (b) While acting as a union representative, defined as any 
officially sanctioned union official, and no fee or gratuity is 
charged.


Sec.  30.602  Who is responsible for paying the representative's fee?

    A representative may charge the claimant a fee for services and for 
costs associated with the representation before OWCP. The claimant is 
solely responsible for paying the fee and other costs. OWCP will not 
reimburse the claimant, nor is it in any way liable for the amount of 
the fee and costs.


Sec.  30.603  Are there any limitations on what the representative may 
charge the claimant for his or her services?

    (a) Notwithstanding any contract, the representative may not 
receive, for services rendered in connection with a claim pending 
before OWCP, more than the percentages of the lump-sum payment made to 
the claimant set out in paragraph (b) of this section.
    (b) The percentages referred to in paragraph (a) of this section 
are:
    (1) 2 percent for the filing of an initial claim with OWCP, 
provided that the representative was retained prior to the filing of 
the initial claim; plus
    (2) 10 percent of the difference between the lump-sum payment made 
to the claimant and the amount proposed in the recommended decision 
with respect to objections to a recommended decision.
    (c)(1) Any representative who violates this section shall be fined 
not more than $5,000.
    (2) The authority to prosecute violations of this limitation lies 
with the Department of Justice.
    (d) The fee limitations described in this section shall not apply 
with respect to representative services that are rendered in connection 
with a petition filed with a U.S. District Court seeking review of an 
OWCP decision that is final pursuant to Sec.  30.316(d), or with 
respect to any subsequent appeal in such a proceeding.

Third Party Liability


Sec.  30.605  What rights does the United States have upon payment of 
compensation under EEOICPA?

    If an occupational illness or covered illness for which 
compensation is payable under EEOICPA is caused, wholly or partially, 
by someone other than a federal employee acting within the scope of his 
or her employment, a DOE contractor or subcontractor, a beryllium 
vendor or atomic weapons employer, the United States is subrogated for 
the full amount of any payment of compensation under EEOICPA to any 
right or claim that the individual to whom the payment was made may 
have against any person or entity on account of such occupational 
illness or covered illness.


Sec.  30.606  Under what circumstances must a recovery of money or 
other property in connection with an illness for which benefits are 
payable under EEOICPA be reported to OWCP?

    Any person who has filed an EEOICPA claim that has been accepted by 
OWCP (whether or not compensation has been paid), or who has received 
EEOICPA benefits in connection with a claim filed by another, is 
required to notify OWCP of the receipt of money or other property as a 
result of a settlement or judgment in connection with the circumstances 
of that claim.


Sec.  30.607  How is a structured settlement (that is, a settlement 
providing for receipt of funds over a specified period of time) treated 
for purposes of reporting the recovery?

    In this situation, the recovery to be reported is the present value 
of the right to receive all of the payments included in the structured 
settlement, allocated in the case of multiple recipients in the same 
manner as single payment recoveries.


Sec.  30.608  How does the United States calculate the amount to which 
it is subrogated?

    The subrogated amount of a specific claim consists of the total 
money paid by OWCP from the Energy Employees Occupational Illness 
Compensation Fund with respect to that claim to or on behalf of a 
covered Part B employee, a covered Part E employee or an eligible 
surviving beneficiary, less charges for any medical file review (i.e., 
the physician did not examine the employee) done at the request of 
OWCP. Charges for medical examinations also may be subtracted if the 
covered Part B employee, covered Part E employee or an eligible 
surviving beneficiary establishes that the examinations were required 
to be made available to the covered Part B employee or covered Part E 
employee under a statute other than EEOICPA.


Sec.  30.609  Is a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered by 
EEOICPA a recovery that must be reported to OWCP?

    Since an injury caused by medical malpractice in treating an 
occupational illness or covered illness compensable under EEOICPA is 
also covered under EEOICPA, any recovery in a suit alleging such an 
injury is treated as a recovery that must be reported to OWCP.


Sec.  30.610  Are payments to a covered Part B employee, a covered Part 
E employee or an eligible surviving beneficiary as a result of an 
insurance policy which the employee or eligible surviving beneficiary 
has purchased a recovery that must be reported to OWCP?

    Since payments received by a covered Part B employee, a covered 
Part E employee or an eligible surviving beneficiary pursuant to an 
insurance policy purchased by someone other than a liable third party 
are not payments in satisfaction of liability for causing an 
occupational illness or covered illness compensable under the Act, they 
are not considered a recovery that must be reported to OWCP.

[[Page 33630]]

Sec.  30.611  If a settlement or judgment is received for more than one 
medical condition, can the amount paid on a single EEOICPA claim be 
attributed to different conditions for purposes of calculating the 
amount to which the United States is subrogated?

    (a) All medical conditions accepted by OWCP in connection with a 
single claim are treated as the same illness for the purpose of 
computing the amount which the United States is entitled to offset in 
connection with the receipt of a recovery from a third party, except 
that an injury caused by medical malpractice in treating an illness 
covered under EEOICPA will be treated as a separate injury.
    (b) If an illness covered under EEOICPA is caused under 
circumstances creating a legal liability in more than one person, other 
than the United States, a DOE contractor or subcontractor, a beryllium 
vendor or an atomic weapons employer, to pay damages, OWCP will 
determine whether recoveries received from one or more third parties 
should be attributed to separate conditions for which compensation is 
payable in connection with a single EEOICPA claim. If such an 
attribution is both practicable and equitable, as determined by OWCP, 
in its discretion, the conditions will be treated as separate injuries 
for purposes of calculating the amount to which the United States is 
subrogated.

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons 
Employers


Sec.  30.615  What type of tort suits filed against beryllium vendors 
or atomic weapons employers may disqualify certain claimants from 
receiving benefits under Part B of EEOICPA?

    (a) A tort suit (other than an administrative or judicial 
proceeding for workers' compensation) that includes a claim arising out 
of a covered Part B employee's employment-related exposure to beryllium 
or radiation, filed against a beryllium vendor or an atomic weapons 
employer, by a covered Part B employee or an eligible surviving 
beneficiary or beneficiaries of a deceased covered Part B employee, 
will disqualify that otherwise eligible individual or individuals from 
receiving benefits under Part B of EEOICPA unless such claim is 
terminated in accordance with the requirements of Sec. Sec.  30.616 
through 30.619.
    (b) The term ``claim arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation'' used in 
paragraph (a) of this section includes a claim that is derivative of a 
covered Part B employee's employment-related exposure to beryllium or 
radiation, such as a claim for loss of consortium raised by a covered 
Part B employee's spouse.
    (c) If all claims arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation are terminated in 
accordance with the requirements of Sec. Sec.  30.616 through 30.619 of 
these regulations, proceeding with the remaining portion of the tort 
suit filed against a beryllium vendor or an atomic weapons employer 
will not disqualify an otherwise eligible individual or individuals 
from receiving benefits under Part B of EEOICPA.


Sec.  30.616  What happens if this type of tort suit was filed prior to 
October 30, 2000?

    (a) If a tort suit described in Sec.  30.615 was filed prior to 
October 30, 2000, the claimant or claimants will not be disqualified 
from receiving any EEOICPA benefits to which they may be found entitled 
if the tort suit was terminated in any manner prior to December 28, 
2001.
    (b) If a tort suit described in Sec.  30.615 was filed prior to 
October 30, 2000 and was pending as of December 28, 2001, the claimant 
or claimants will be disqualified from receiving any benefits under 
Part B of EEOICPA unless they dismissed all claims arising out of a 
covered Part B employee's employment-related exposure to beryllium or 
radiation that were included in the tort suit prior to December 31, 
2003.


Sec.  30.617  What happens if this type of tort suit was filed during 
the period from October 30, 2000 through December 28, 2001?

    (a) If a tort suit described in Sec.  30.615 was filed during the 
period from October 30, 2000 through December 28, 2001, the claimant or 
claimants will be disqualified from receiving any benefits under Part B 
of EEOICPA unless they dismiss all claims arising out of a covered Part 
B employee's employment-related exposure to beryllium or radiation that 
are included in the tort suit on or before the last permissible date 
described in paragraph (b) of this section.
    (b) The last permissible date is the later of:
    (1) April 30, 2003; or
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by EEOICPA. For purposes of determining when this 30-
month period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from HHS, or a diagnosis of a covered beryllium 
illness, as applicable.


Sec.  30.618  What happens if this type of tort suit was filed after 
December 28, 2001?

    (a) If a tort suit described in Sec.  30.615 was filed after 
December 28, 2001, the claimant or claimants will be disqualified from 
receiving any benefits under Part B of EEOICPA if a judgment is entered 
against them.
    (b) If a tort suit described in Sec.  30.615 was filed after 
December 28, 2001 and a judgment has not yet been entered against the 
claimant or claimants, they will also be disqualified from receiving 
any benefits under Part B of EEOICPA unless, prior to entry of any 
judgment, they dismiss all claims arising out of a covered Part B 
employee's employment-related exposure to beryllium or radiation that 
are included in the tort suit on or before the last permissible date 
described in paragraph (c) of this section.
    (c) The last permissible date is the later of:
    (1) April 30, 2003; or
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by EEOICPA. For purposes of determining when this 30-
month period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from HHS, or a diagnosis of a covered beryllium 
illness, as applicable.


Sec.  30.619  Do all the parties to this type of tort suit have to take 
these actions?

    The type of tort suits described in Sec.  30.615 may be filed by 
more than one individual, each with a different cause of action. For 
example, a tort suit may be filed against a beryllium vendor by both a 
covered Part B employee and his or her spouse, with the covered Part B 
employee claiming for chronic beryllium disease and the spouse claiming 
for loss of consortium due to the covered Part B employee's exposure to 
beryllium. However, since the spouse of a living covered Part B 
employee could not be an eligible surviving beneficiary under Part B of 
EEOICPA, the spouse would not have to comply with the termination 
requirements of Sec. Sec.  30.616 through 30.618. A similar result 
would occur if a tort suit were filed by both the spouse of a deceased 
covered Part B employee and other family members (such as children of 
the deceased covered part B employee). In this case, the spouse would 
be the only

[[Page 33631]]

eligible surviving beneficiary of the deceased covered Part B employee 
under Part B of the EEOICPA because the other family members could not 
be eligible for benefits while he or she was alive. As a result, the 
spouse would be the only party to the tort suit who would have to 
comply with the termination requirements of Sec. Sec.  30.616 through 
30.618.


Sec.  30.620  How will OWCP ascertain whether a claimant filed this 
type of tort suit and if he or she has been disqualified from receiving 
any benefits under Part B of EEOICPA?

    Prior to authorizing payment on a claim under Part B of EEOICPA, 
OWCP will require each claimant to execute and provide an affidavit 
stating if he or she filed a tort suit (other than an administrative or 
judicial proceeding for workers' compensation) against either a 
beryllium vendor or an atomic weapons employer that included a claim 
arising out of a covered Part B employee's employment-related exposure 
to beryllium or radiation, and if so, the current status of such tort 
suit. OWCP may also require the submission of any supporting evidence 
necessary to confirm the particulars of any affidavit provided under 
this section.

Coordination of Part E Benefits With State Workers' Compensation 
Benefits


Sec.  30.625  What does ``coordination of benefits'' mean under Part E 
of EEOICPA?

    In general, ``coordination of benefits'' under Part E of the Act 
occurs when compensation to be received under Part E is reduced by 
OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect certain 
benefits the beneficiary receives under a state workers' compensation 
program for the same covered illness.


Sec.  30.626  How will OWCP coordinate compensation payable under Part 
E of EEOICPA with benefits from state workers' compensation programs?

    (a) OWCP will reduce the compensation payable under Part E by the 
amount of benefits the claimant receives from a state workers' 
compensation program by reason of the same covered illness, after 
deducting the reasonable costs to the claimant of obtaining those 
benefits.
    (b) To determine the amount of any reduction of EEOICPA 
compensation, OWCP shall require the covered Part E employee or each 
eligible surviving beneficiary filing a claim under Part E to execute 
and provide an affidavit reporting the amount of any benefit received 
pursuant to a claim filed in a state workers' compensation program for 
the same covered illness.
    (c) If a covered Part E employee or a survivor of such employee 
receives benefits through a state workers' compensation program 
pursuant to a claim for the same covered illness, OWCP shall reduce a 
portion of the dollar amount of such state workers' benefit from the 
compensation payable under Part E. OWCP will calculate the net amount 
of the state workers' compensation benefit amount to be subtracted from 
the compensation payment under Part E in the following manner:
    (1) OWCP will first determine the dollar value of the benefits 
received by that individual from a state workers' compensation program 
by including all benefits, other than medical and vocational 
rehabilitation benefits, received for the same covered illness or 
injury sustained as a consequence of a covered illness.
    (2) OWCP will then make certain deductions from the above dollar 
benefit received under a state workers' compensation program to arrive 
at the dollar amount that will be subtracted from any compensation 
payable under Part E of EEOICPA.
    (i) Allowable deductions consist of reasonable costs in obtaining 
state workers' compensation benefits incurred by that individual, 
including but not limited to attorney's fees OWCP deems reasonable and 
itemized costs of suit (out-of-pocket expenditures not part of the 
normal overhead of a law firm's operation like filing, travel expenses, 
witness fees, and court reporter costs for transcripts), provided that 
adequate supporting documentation is submitted to OWCP for its 
consideration.
    (ii) The EEOICPA benefits that will be reduced will consist of any 
unpaid monetary payments payable in the future and medical benefits 
payable in the future. In those cases where it has not yet paid EEOICPA 
benefits under Part E, OWCP will reduce such benefits on a dollar-for-
dollar basis, beginning with the current monetary payments first. If 
the amount to be subtracted exceeds the monetary payments currently 
payable, OWCP will reduce ongoing EEOICPA medical benefits payable in 
the future by the amount of any remaining surplus. This means that OWCP 
will apply the amount it would otherwise pay to reimburse the covered 
Part E employee for any ongoing EEOICPA medical treatment to the 
remaining surplus until it is absorbed (or until further monetary 
benefits become payable that are sufficient to absorb the surplus).
    (3) The above coordination of benefits will not occur if the 
beneficiary under a state workers' compensation program receives state 
workers' compensation benefits for both a covered and a non-covered 
illness arising out of and in the course of the same work-related 
incident.


Sec.  30.627  Under what circumstances will OWCP waive the statutory 
requirement to coordinate these benefits?

    A waiver to the requirement to coordinate Part E benefits with 
benefits paid under a state workers' compensation program may be 
granted if OWCP determines that the administrative costs and burdens of 
coordinating benefits in a particular case or class of cases justifies 
the waiver. This decision is exclusively within the discretion of OWCP.

Subpart H--Information for Medical Providers

Medical Records and Bills


Sec.  30.700  What kinds of medical records must providers keep?

    Federal government medical officers, private physicians and 
hospitals are required to keep records of all cases treated by them 
under EEOICPA so they can supply OWCP with a history of the claimed 
occupational illness or covered illness, a description of the nature 
and extent of the claimed occupational illness or covered illness, the 
results of any diagnostic studies performed, and the nature of the 
treatment rendered. This requirement terminates after a provider has 
supplied OWCP with the above-noted information, and otherwise 
terminates ten years after the record was created.


Sec.  30.701  How are medical bills to be submitted?

    (a) All charges for medical and surgical treatment, appliances or 
supplies furnished to employees, except for treatment and supplies 
provided by nursing homes, shall be supported by medical evidence as 
provided in Sec.  30.700. The physician or provider shall itemize the 
charges on Form OWCP-1500 or CMS-1500 (for professional charges), Form 
OWCP-92 or UB-92 (for hospitals), an electronic or paper-based bill 
that includes required data elements (for pharmacies), or other form as 
warranted, and submit the form or bill promptly for processing.
    (b) The provider shall identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the Healthcare 
Common Procedure Coding System (HCPCS) code, the National Drug Code 
(NDC) number, or the Revenue Center Code (RCC), with a brief narrative 
description. Where no code is applicable, a detailed

[[Page 33632]]

description of services performed should be provided.
    (c) For professional charges billed on Form OWCP-1500 or CMS-1500, 
the provider shall also state each diagnosed condition and furnish the 
corresponding diagnostic code using the ``International Classification 
of Disease, 9th Edition, Clinical Modification'' (ICD-9-CM), or as 
revised. A separate bill shall be submitted when the employee is 
discharged from treatment or monthly, if treatment for the occupational 
illness is necessary for more than 30 days.
    (1)(i) Hospitals shall submit charges for medical and surgical 
treatment or supplies promptly on Form OWCP-92 or UB-92. The provider 
shall identify each outpatient radiology service, outpatient pathology 
service and physical therapy service performed, using HCPCS/CPT codes 
with a brief narrative description. The charge for each individual 
service, or the total charge for all identical services, should also 
appear on the form.
    (ii) Other outpatient hospital services for which HCPCS/CPT codes 
exist shall also be coded individually using the coding scheme noted in 
this section. Services for which there are no HCPCS/CPT codes available 
can be presented using the RCCs described in the ``National Uniform 
Billing Data Elements Specifications,'' current edition. The provider 
shall also furnish the diagnostic code using the ICD-9-CM. If the 
outpatient hospital services include surgical and/or invasive 
procedures, the provider shall code each procedure using the proper 
HCPCS/CPT codes and furnishing the corresponding diagnostic codes using 
the ICD-9-CM.
    (2) Pharmacies shall itemize charges for prescription medications, 
appliances, or supplies on electronic or paper-based bills and submit 
them promptly for processing. Bills for prescription medications must 
include all required data elements, including the NDC number assigned 
to the product, the generic or trade name of the drug provided, the 
prescription number, the quantity provided, and the date the 
prescription was filled.
    (3) Nursing homes shall itemize charges for appliances, supplies or 
services on the provider's billhead stationery and submit them promptly 
for processing.
    (d) By submitting a bill and/or accepting payment, the provider 
signifies that the service for which payment is sought was performed as 
described and was necessary. In addition, the provider thereby agrees 
to comply with all regulations set forth in this subpart concerning the 
rendering of treatment and/or the process for seeking payment for 
medical services, including the limitation imposed on the amount to be 
paid for such services.
    (e) In summary, bills submitted by providers must: be itemized on 
Form OWCP-1500 or CMS-1500 (for physicians), Form OWCP-92 or UB-92 (for 
hospitals), or an electronic or paper-based bill that includes required 
data elements (for pharmacies); contain the signature or signature 
stamp of the provider; and identify the procedures using HCPCS/CPT 
codes, RCCs, or NDC numbers. Otherwise, the bill may be returned to the 
provider for correction and resubmission. The decision of OWCP whether 
to pay a provider's bill is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.


Sec.  30.702  How should an employee prepare and submit requests for 
reimbursement for medical expenses, transportation costs, loss of 
wages, and incidental expenses?

    (a) If an employee has paid bills for medical, surgical or other 
services, supplies or appliances provided by a professional due to an 
occupational illness or a covered illness, he or she must submit a 
request for reimbursement on Form OWCP-915, together with an itemized 
bill on Form OWCP-1500 or CMS-1500 prepared by the provider and a 
medical report as provided in Sec.  30.700, for consideration.
    (1) The provider of such service shall state each diagnosed 
condition and furnish the applicable ICD-9-CM code and identify each 
service performed using the applicable HCPCS/CPT code, with a brief 
narrative description of the service performed, or, where no code is 
applicable, a detailed description of that service.
    (2) The reimbursement request must be accompanied by evidence that 
the provider received payment for the service from the employee and a 
statement of the amount paid. Acceptable evidence that payment was 
received includes, but is not limited to, a signed statement by the 
provider, a mechanical stamp or other device showing receipt of 
payment, a copy of the employee's canceled check (both front and back) 
or a copy of the employee's credit card receipt.
    (b) If a hospital, pharmacy or nursing home provided services for 
which the employee paid, the employee must also use Form OWCP-915 to 
request reimbursement and should submit the request in accordance with 
the provisions of Sec.  30.701(a). Any such request for reimbursement 
must be accompanied by evidence, as described in paragraph (a)(2) of 
this section, that the provider received payment for the service from 
the employee and a statement of the amount paid.
    (c) The requirements of paragraphs (a) and (b) of this section may 
be waived if extensive delays in the filing or the adjudication of a 
claim make it unusually difficult for the employee to obtain the 
required information.
    (d) Copies of bills submitted for reimbursement will not be 
accepted unless they bear the original signature of the provider and 
evidence of payment. Payment for medical and surgical treatment, 
appliances or supplies shall in general be no greater than the maximum 
allowable charge for such service determined by OWCP, as set forth in 
Sec.  30.705. The decision of OWCP whether to reimburse an employee for 
out-of-pocket medical expenses, and the amount of any reimbursement, is 
final when issued and is not subject to the adjudicatory process 
described in subpart D of this part.
    (e) An employee will be only partially reimbursed for a medical 
expense if the amount he or she paid to a provider for the service 
exceeds the maximum allowable charge set by OWCP's schedule. If this 
happens, the employee will be advised of the maximum allowable charge 
for the service in question and of his or her responsibility to ask the 
provider to refund to the employee, or credit to the employee's 
account, the amount he or she paid which exceeds the maximum allowable 
charge. The provider that the employee paid, but not the employee, may 
request reconsideration of the fee determination as set forth in Sec.  
30.712.
    (f) If the provider fails to make appropriate refund to the 
employee, or to credit the employee's account, within 60 days after the 
employee requests a refund of any excess amount, or the date of a 
subsequent reconsideration decision which continues to disallow all or 
a portion of the disputed amount, OWCP will initiate exclusion 
procedures as provided by Sec.  30.715.
    (g) If the provider does not refund to the employee or credit to 
his or her account the amount of money paid in excess of the allowed 
charge, the employee should submit documentation of the attempt to 
obtain such refund or credit to OWCP. OWCP may authorize reasonable 
reimbursement to the employee after reviewing the facts and 
circumstances of the case.


Sec.  30.703  What are the time limitations on OWCP's payment of bills?

    OWCP will pay providers and reimburse employees promptly for all 
bills received on an approved form and in a timely manner. However, no 
bill will be paid for expenses incurred if the

[[Page 33633]]

bill is submitted more than one year beyond the end of the calendar 
year in which the expense was incurred or the service or supply was 
provided, or more than one year beyond the end of the calendar year in 
which the claim was first accepted as compensable by OWCP, whichever is 
later.

Medical Fee Schedule


Sec.  30.705  What services are covered by the OWCP fee schedule?

    (a) Payment for medical and other health services furnished by 
physicians, hospitals and other providers for occupational illnesses or 
covered illnesses shall not exceed a maximum allowable charge for such 
service as determined by OWCP, except as provided in this section.
    (b) The schedule of maximum allowable charges does not apply to 
charges for services provided in nursing homes, but it does apply to 
charges for treatment furnished in a nursing home by a physician or 
other medical professional.
    (c) The schedule of maximum allowable charges also does not apply 
to charges for appliances, supplies, services or treatment furnished by 
medical facilities of the U.S. Public Health Service or the Departments 
of the Army, Navy, Air Force and Veterans Affairs.


Sec.  30.706  How are the maximum fees defined?

    For professional medical services, OWCP shall maintain a schedule 
of maximum allowable fees for procedures performed in a given locality. 
The schedule shall consist of: an assignment of a value to procedures 
identified by HCPCS/CPT code which represents the relative skill, 
effort, risk and time required to perform the procedure, as compared to 
other procedures of the same general class; an index based on a 
relative value scale that considers skill, labor, overhead, malpractice 
insurance and other related costs; and a monetary value assignment 
(conversion factor) for one unit of value in each of the categories of 
service.


Sec.  30.707  How are payments for particular services calculated?

    Payment for a procedure identified by a HCPCS/CPT code shall not 
exceed the amount derived by multiplying the relative values for that 
procedure by the geographic indices for services in that area and by 
the dollar amount assigned to one unit in that category of service.
    (a) The ``locality'' which serves as a basis for the determination 
of average cost is defined by the Bureau of Census Metropolitan 
Statistical Areas. OWCP shall base the determination of the relative 
per capita cost of medical care in a locality using information about 
enrollment and medical cost per county, provided by the Centers for 
Medicare and Medicaid Services (CMS).
    (b) OWCP shall assign the relative value units (RVUs) published by 
CMS to all services for which CMS has made assignments, using the most 
recent revision. Where there are no RVUs assigned to a procedure, OWCP 
may develop and assign any RVUs considered appropriate. The geographic 
adjustment factor shall be that designated by Geographic Practice Cost 
Indices for Metropolitan Statistical Areas as devised for CMS and as 
updated or revised by CMS from time to time. OWCP will devise 
conversion factors for each category of service, and in doing so may 
adapt CMS conversion factors as appropriate using OWCP's processing 
experience and internal data.
    (c) For example, if the unit values for a particular surgical 
procedure are 2.48 for physician's work (W), 3.63 for practice expense 
(PE), and 0.48 for malpractice insurance (M), and the dollar value 
assigned to one unit in that category of service (surgery) is $61.20, 
then the maximum allowable charge for one performance of that procedure 
is the product of the three RVUs times the corresponding geographical 
indices for the locality times the conversion factor. If the geographic 
indices for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then 
the maximum payment calculation is:

[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20
2.45 + 3.44 + .56] x $61.20
6.45 x $61.20 = $394.74


Sec.  30.708  Does the fee schedule apply to every kind of procedure?

    Where the time, effort and skill required to perform a particular 
procedure vary widely from one occasion to the next, OWCP may choose 
not to assign a relative value to that procedure. In this case the 
allowable charge for the procedure will be set individually based on 
consideration of a detailed medical report and other evidence. At its 
discretion, OWCP may set fees without regard to schedule limits for 
specially authorized consultant examinations, for directed medical 
examinations, and for other specially authorized services.


Sec.  30.709  How are payments for medicinal drugs determined?

    Payment for medicinal drugs prescribed by physicians shall not 
exceed the amount derived by multiplying the average wholesale price of 
the medication by the quantity or amount provided, plus a dispensing 
fee.
    (a) All prescription medications identified by NDC number will be 
assigned an average wholesale price representing the product's 
nationally recognized wholesale price as determined by surveys of 
manufacturers and wholesalers. OWCP will establish the dispensing fee.
    (b) The NDC numbers, the average wholesale prices, and the 
dispensing fee shall be reviewed from time to time and updated as 
necessary.


Sec.  30.710  How are payments for inpatient medical services 
determined?

    (a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Prospective Payment 
System (PPS) devised by CMS (42 CFR parts 412, 413, 424, 485, and 489). 
Using this system, payment is derived by multiplying the diagnosis-
related group (DRG) weight assigned to the hospital discharge by the 
provider-specific factors.
    (1) All hospital discharges will be classified according to the 
DRGs prescribed by CMS in the form of the DRG Grouper software program. 
On this list, each DRG represents the average resources necessary to 
provide care in a case in that DRG relative to the national average of 
resources consumed per case.
    (2) The provider-specific factors will be provided by CMS in the 
form of their PPS Pricer software program. The software takes into 
consideration the type of facility, census division, actual geographic 
location of the hospital, case mix cost per discharge, number of 
hospital beds, intern/beds ratio, operating cost to charge ratio, and 
other factors used by CMS to determine the specific rate for a hospital 
discharge under their PPS. OWCP may devise price adjustment factors as 
appropriate using OWCP's processing experience and internal data.
    (3) OWCP will base payments to facilities excluded from CMS's PPS 
on consideration of detailed medical reports and other evidence.
    (4) OWCP shall review the pre-determined hospital rates at least 
once a year, and may adjust any or all components when OWCP deems it 
necessary or appropriate.
    (b) OWCP shall review the schedule of fees at least once a year, 
and may adjust the schedule or any of its components when OWCP deems it 
necessary or appropriate.


Sec.  30.711  When and how are fees reduced?

    (a) OWCP shall accept a provider's designation of the code to 
identify a

[[Page 33634]]

billed procedure or service if the code is consistent with medical 
reports and other evidence. Where no code is supplied, OWCP may 
determine the code based on the narrative description of the procedure 
on the billing form and in associated medical reports. OWCP will pay no 
more than the maximum allowable fee for that procedure.
    (b) If the charge submitted for a service supplied to an employee 
exceeds the maximum amount determined to be reasonable according to the 
schedule, OWCP shall pay the amount allowed by the schedule for that 
service and shall notify the provider in writing that payment was 
reduced for that service in accordance with the schedule. OWCP shall 
also notify the provider of the method for requesting reconsideration 
of the balance of the charge. The decision of OWCP to pay less than the 
charged amount is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.


Sec.  30.712  If OWCP reduces a fee, may a provider request 
reconsideration of the reduction?

    (a) A physician or other provider whose charge for service is only 
partially paid because it exceeds a maximum allowable amount set by 
OWCP may, within 30 days, request reconsideration of the fee 
determination.
    (1) Any such request will be considered by the district office with 
jurisdiction over the employee's claim. The request must be accompanied 
by documentary evidence that the procedure performed was either 
incorrectly identified by the original code, that the presence of a 
severe or concomitant medical condition made treatment especially 
difficult, or that the provider possessed unusual qualifications. In 
itself, board certification in a specialty is not sufficient evidence 
of unusual qualifications to justify a charge in excess of the maximum 
allowable amount set by OWCP. These are the only three circumstances 
that will justify reevaluation of the paid amount.
    (2) A list of district offices and their respective areas of 
jurisdiction is available upon request from the U.S. Department of 
Labor, Office of Workers' Compensation Programs, Washington, DC 20210, 
or on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. Within 30 days of receiving the request for 
reconsideration, the district office shall respond in writing stating 
whether or not an additional amount will be allowed as reasonable, 
considering the evidence submitted.
    (b) If the district office issues a decision that continues to 
disallow a contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office. The 
application must be filed within 30 days of the date of such decision, 
and it may be accompanied by additional evidence. Within 60 days of 
receipt of such application, the Regional Director shall issue a 
decision in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted.


Sec.  30.713  If OWCP reduces a fee, may a provider bill the employee 
for the balance?

    A provider whose fee for service is partially paid by OWCP as a 
result of the application of its fee schedule or other tests for 
reasonableness in accordance with this part shall not request payment 
from the employee for the unpaid amount of the provider's bill.
    (a) Where a provider's fee for a particular service or procedure is 
lower to the general public than as provided by the schedule of maximum 
allowable charges, the provider shall bill at the lower rate. A fee for 
a particular service or procedure which is higher than the provider's 
fee to the general public for that same service or procedure will be 
considered a charge ``substantially in excess of such provider's 
customary charges'' for the purposes of Sec.  30.715(d).
    (b) A provider whose fee for service is partially paid by OWCP as 
the result of the application of the schedule of maximum allowable 
charges and who collects or attempts to collect from the employee, 
either directly or through a collection agent, any amount in excess of 
the charge allowed by OWCP, and who does not cease such action or make 
appropriate refund to the employee within 60 days of the date of the 
decision of OWCP, shall be subject to the exclusion procedures provided 
by Sec.  30.715(h).

Exclusion of Providers


Sec.  30.715  What are the grounds for excluding a provider from 
payment under this part?

    A physician, hospital, or provider of medical services or supplies 
shall be excluded from payment under this part if such physician, 
hospital or provider has:
    (a) Been convicted under any criminal statute of fraudulent 
activities in connection with any federal or state program for which 
payments are made to providers for similar medical, surgical or 
hospital services, appliances or supplies;
    (b) Been excluded or suspended, or has resigned in lieu of 
exclusion or suspension, from participation in any federal or state 
program referred to in paragraph (a) of this section;
    (c) Knowingly made, or caused to be made, any false statement or 
misrepresentation of a material fact in connection with a determination 
of the right to reimbursement under this part, or in connection with a 
request for payment;
    (d) Submitted, or caused to be submitted, three or more bills or 
requests for payment within a 12-month period under this subpart 
containing charges which OWCP finds to be substantially in excess of 
such provider's customary charges, unless OWCP finds there is good 
cause for the bills or requests containing such charges;
    (e) Knowingly failed to timely reimburse employees for treatment, 
services or supplies furnished under this subpart and paid for by OWCP;
    (f) Failed, neglected or refused on three or more occasions during 
a 12-month period to submit full and accurate medical reports, or to 
respond to requests by OWCP for additional reports or information, as 
required by Sec.  30.700 of this part;
    (g) Knowingly furnished treatment, services or supplies which are 
substantially in excess of the employee's needs, or of a quality which 
fails to meet professionally recognized standards; or
    (h) Collected or attempted to collect from the employee, either 
directly or through a collection agent, an amount in excess of the 
charge allowed by OWCP for the procedure performed, and has failed or 
refused to make appropriate refund to the employee, or to cease such 
collection attempts, within 60 days of the date of the decision of 
OWCP.


Sec.  30.716  What will cause OWCP to automatically exclude a physician 
or other provider of medical services and supplies?

    (a) OWCP shall automatically exclude a physician, hospital, or 
provider of medical services or supplies who:
    (1) Has been convicted of a crime described in Sec.  30.715(a); or
    (2) Has been excluded or suspended, or has resigned in lieu of 
exclusion or suspension, from participation in any federal or state 
program for which payments are made to providers for similar medical, 
surgical or hospital services, appliances or supplies.
    (b) The exclusion applies to participating in the program and to 
seeking payment under this part for services performed after the date 
of the

[[Page 33635]]

entry of the judgment of conviction or order of exclusion, suspension 
or resignation, as the case may be, by the court or agency concerned. 
Proof of the conviction, exclusion, suspension or resignation may 
consist of a copy thereof authenticated by the seal of the court or 
agency concerned.


Sec.  30.717  When are OWCP's exclusion procedures initiated?

    Upon receipt of information indicating that a physician, hospital 
or provider of medical services or supplies (hereinafter the provider) 
has engaged in activities enumerated in paragraphs (c) through (h) of 
Sec.  30.715, the Regional Director, after completion of inquiries he 
or she deems appropriate, may initiate procedures to exclude the 
provider from participation in the EEOICPA program. For the purposes of 
these procedures, ``Regional Director'' may include any officer 
designated to act on his or her behalf.


Sec.  30.718  How is a provider notified of OWCP's intent to exclude 
him or her?

    The Regional Director shall initiate the exclusion process by 
sending the provider a letter, by certified mail and with return 
receipt requested, which shall contain the following:
    (a) A concise statement of the grounds upon which exclusion shall 
be based;
    (b) A summary of the information, with supporting documentation, 
upon which the Regional Director has relied in reaching an initial 
decision that exclusion proceedings should begin;
    (c) An invitation to the provider to:
    (1) Resign voluntarily from participation in the EEOICPA program 
without admitting or denying the allegations presented in the letter; 
or
    (2) Request that the decision on exclusion be based upon the 
existing record and any additional documentary information the provider 
may wish to furnish;
    (d) A notice of the provider's right, in the event of an adverse 
ruling by the Regional Director, to request a formal hearing before an 
administrative law judge;
    (e) A notice that should the provider fail to answer (as described 
in Sec.  30.719) the letter of intent within 30 calendar days of 
receipt, the Regional Director may deem the allegations made therein to 
be true and may order exclusion of the provider without conducting any 
further proceedings; and
    (f) The name and address of the OWCP representative who shall be 
responsible for receiving the answer from the provider.


Sec.  30.719  What requirements must the provider's reply and OWCP's 
decision meet?

    (a) The provider's answer shall be in writing and shall include an 
answer to OWCP's invitation to resign voluntarily. If the provider does 
not offer to resign, he or she shall request that a determination be 
made upon the existing record and any additional information provided.
    (b) Should the provider fail to answer the letter of intent within 
30 calendar days of receipt, the Regional Director may deem the 
allegations made therein to be true and may order exclusion of the 
provider.
    (c) By arrangement with the OWCP representative, the provider may 
inspect or request copies of information in the record at any time 
prior to the Regional Director's decision.
    (d) The Regional Director shall issue his or her decision in 
writing, and shall send a copy of the decision to the provider by 
certified mail, return receipt requested. The decision shall advise the 
provider of his or her right to request, within 30 days of the date of 
the adverse decision, a formal hearing before an administrative law 
judge under the procedures set forth in Sec.  30.720. The filing of a 
request for a hearing within the time specified shall stay the 
effectiveness of the decision to exclude.


Sec.  30.720  How can an excluded provider request a hearing?

    A request for a hearing shall be sent to the OWCP representative 
named pursuant to Sec.  30.718(f) and shall contain:
    (a) A concise notice of the issues on which the provider desires to 
give evidence at the hearing;
    (b) Any request for a more definite statement by OWCP;
    (c) Any request for the presentation of oral argument or evidence; 
and
    (d) Any request for a certification of questions concerning 
professional medical standards, medical ethics or medical regulation 
for an advisory opinion from a competent recognized professional 
organization or federal, state or local regulatory body.


Sec.  30.721  How are hearings assigned and scheduled?

    (a) If the designated OWCP representative receives a timely request 
for hearing, the OWCP representative shall refer the matter to the 
Chief Administrative Law Judge of the Department of Labor, who shall 
assign it for an expedited hearing. The administrative law judge 
assigned to the matter shall consider the request for hearing, act on 
all requests therein, and issue a Notice of Hearing and Hearing 
Schedule for the conduct of the hearing. A copy of the hearing notice 
shall be served on the provider by certified mail, return receipt 
requested. The Notice of Hearing and Hearing Schedule shall include:
    (1) A ruling on each item raised in the request for hearing;
    (2) A schedule for the prompt disposition of all preliminary 
matters, including requests for more definite statements and for the 
certification of questions to advisory bodies; and
    (3) A scheduled hearing date not less than 30 days after the date 
the schedule is issued, and not less than 15 days after the scheduled 
conclusion of preliminary matters, provided that the specific time and 
place of the hearing may be set on 10 days' notice.
    (b) The purpose of the designation of issues is to provide for an 
effective hearing process. The provider is entitled to be heard on any 
matter placed in issue by his or her response to the Notice of Intent 
to Exclude, and may designate ``all issues'' for purposes of hearing. 
However, a specific designation of issues is required if the provider 
wishes to interpose affirmative defenses or request the certification 
of questions for an advisory opinion.


Sec.  30.722  How are subpoenas or advisory opinions obtained?

    (a) In exclusion proceedings involving medical services provided 
under Part B of the Act only, the provider may apply to the 
administrative law judge for the issuance of subpoenas upon a showing 
of good cause therefore.
    (b) A certification of a request for an advisory opinion concerning 
professional medical standards, medical ethics or medical regulation to 
a competent recognized or professional organization or federal, state 
or local regulatory agency may be made:
    (1) As to an issue properly designated by the provider, in the 
sound discretion of the administrative law judge, provided that the 
request will not unduly delay the proceedings;
    (2) By OWCP on its own motion either before or after the 
institution of proceedings, and the results thereof shall be made 
available to the provider at the time that proceedings are instituted 
or, if after the proceedings are instituted, within a reasonable time 
after receipt. The opinion, if rendered by the organization or agency, 
is advisory only and not binding on the administrative law judge.

[[Page 33636]]

Sec.  30.723  How will the administrative law judge conduct the hearing 
and issue the recommended decision?

    (a) To the extent appropriate, proceedings before the 
administrative law judge shall be governed by 29 CFR part 18.
    (b) The administrative law judge shall receive such relevant 
evidence as may be adduced at the hearing. Evidence shall be presented 
under oath, orally or in the form of written statements. The 
administrative law judge shall consider the Notice and Response, 
including all pertinent documents accompanying them, and may also 
consider any evidence which refers to the provider or to any claim with 
respect to which the provider has provided medical services, hospital 
services, or medical services and supplies, and such other evidence as 
the administrative law judge may determine to be necessary or useful in 
evaluating the matter.
    (c) All hearings shall be recorded and the original of the complete 
transcript shall become a permanent part of the official record of the 
proceedings.
    (d) In conjunction with the hearing, the administrative law judge 
may:
    (1) Administer oaths; and
    (2) Examine witnesses.
    (e) At the conclusion of the hearing, the administrative law judge 
shall issue a written decision and cause it to be served on all parties 
to the proceeding, their representatives and OWCP.


Sec.  30.724  How can a party request review by OWCP of the 
administrative law judge's recommended decision?

    (a) Any party adversely affected or aggrieved by the decision of 
the administrative law judge may file a petition for discretionary 
review with the Director for Energy Employees Occupational Illness 
Compensation within 30 days after issuance of such decision. The 
administrative law judge's decision, however, shall be effective on the 
date issued and shall not be stayed except upon order of the Director.
    (b) Review by the Director for Energy Employees Occupational 
Illness Compensation shall not be a matter of right but of the sound 
discretion of the Director.
    (c) Petitions for discretionary review shall be filed only upon one 
or more of the following grounds:
    (1) A finding or conclusion of material fact is not supported by 
substantial evidence;
    (2) A necessary legal conclusion is erroneous;
    (3) The decision is contrary to law or to the duly promulgated 
rules or decisions of OWCP;
    (4) A substantial question of law, policy, or discretion is 
involved; or
    (5) A prejudicial error of procedure was committed.
    (d) Each issue shall be separately numbered and plainly and 
concisely stated, and shall be supported by detailed citations to the 
record when assignments of error are based on the record, and by 
statutes, regulations or principal authorities relied upon. Except for 
good cause shown, no assignment of error by any party shall rely on any 
question of fact or law upon which the administrative law judge had not 
been afforded an opportunity to pass.
    (e) A statement in opposition to the petition for discretionary 
review may be filed, but such filing shall in no way delay action on 
the petition.
    (f) If a petition is granted, review shall be limited to the 
questions raised by the petition.
    (g) A petition not granted within 20 days after receipt of the 
petition is deemed denied.


Sec.  30.725  What are the effects of non-automatic exclusion?

    (a) OWCP shall give notice of the exclusion of a physician, 
hospital or provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) CMS; and
    (3) All employees who are known to have had treatment, services or 
supplies from the excluded provider within the six-month period 
immediately preceding the order of exclusion.
    (b) Notwithstanding any exclusion of a physician, hospital, or 
provider of medical services or supplies under this subpart, OWCP shall 
not refuse an employee reimbursement for any otherwise reimbursable 
medical treatment, service or supply if:
    (1) Such treatment, service or supply was rendered in an emergency 
by an excluded physician; or
    (2) The employee could not reasonably have been expected to know of 
such exclusion.
    (c) An employee who is notified that his or her attending physician 
has been excluded shall have a new right to select a qualified 
physician.


Sec.  30.726  How can an excluded provider be reinstated?

    (a) If a physician, hospital, or provider of medical services or 
supplies has been automatically excluded pursuant to Sec.  30.716, the 
provider excluded will automatically be reinstated upon notice to OWCP 
that the conviction or exclusion which formed the basis of the 
automatic exclusion has been reversed or withdrawn. However, an 
automatic reinstatement shall not preclude OWCP from instituting 
exclusion proceedings based upon the underlying facts of the matter.
    (b) A physician, hospital, or provider of medical services or 
supplies excluded from participation as a result of an order issued 
pursuant to this subpart may apply for reinstatement one year after the 
entry of the order of exclusion, unless the order expressly provides 
for a shorter period. An application for reinstatement shall be 
addressed to the Director for Energy Employees Occupational Illness 
Compensation, and shall contain a concise statement of the basis for 
the application. The application should be accompanied by supporting 
documents and affidavits.
    (c) A request for reinstatement may be accompanied by a request for 
oral argument. Oral argument will be allowed only in unusual 
circumstances where it will materially aid the decision process.
    (d) The Director for Energy Employees Occupational Illness 
Compensation shall order reinstatement only in instances where such 
reinstatement is clearly consistent with the goal of this subpart to 
protect the EEOICPA program against fraud and abuse. To satisfy this 
requirement the provider must provide reasonable assurances that the 
basis for the exclusion will not be repeated.

Subpart I--Wage-Loss Determinations Under Part E of EEOICPA

General Provisions


Sec.  30.800  What types of wage-loss are compensable under Part E of 
EEOICPA?

    Years of wage-loss occurring prior to normal retirement age that 
are the result of a covered illness contracted by a covered Part E 
employee through work-related exposure to a toxic substance at a 
Department of Energy facility or a RECA section 5 facility, as 
appropriate, may be compensable under Part E of the Act. Whether years 
of wage-loss are compensable depends on determinations with respect to:
    (a) The average annual wage of the employee as determined by OWCP 
in accordance with Sec.  30.810;
    (b) The percentage of his or her average annual wage that the 
employee was able to earn during the calendar year(s) in question as 
determined by OWCP in accordance with Sec.  30.811; and
    (c) Whether the employee's inability to earn at least as much as 
his or her average annual wage was due to a covered illness as defined 
in Sec.  30.5(r).

[[Page 33637]]

Sec.  30.801  What special definitions does OWCP use in connection with 
Part E wage-loss determinations?

    For the purposes of paying compensation based on wage-loss under 
Part E of the Act, OWCP will apply the following definitions:
    (a) Average annual wage means four times the average quarterly 
wages of a covered Part E employee for the 12 quarters preceding the 
quarter during which he or she first experienced wage-loss due to 
exposure to a toxic substance at a DOE facility or RECA section 5 
facility, excluding any quarters during which the employee was 
unemployed. Because being ``retired'' is not equivalent to being 
``unemployed,'' quarters during which an employee had no wages because 
he or she was retired will not be excluded from this calculation.
    (b) Normal retirement age means the age at which a covered Part E 
employee first became eligible for unreduced retirement benefits under 
the Old-Age, Survivors and Disability Insurance (OASDI) provisions of 
the Social Security Act. In general, persons born during or before 1937 
are eligible for unreduced OASDI retirement benefits at age 65, and 
that age increases in monthly increments until it reaches 67, which is 
the age at which persons born during or after 1960 become eligible for 
unreduced OASDI retirement benefits.
    (c) Quarter means the three-month period January through March, 
April through June, July through September, or October through 
December.
    (d) Quarter during which the employee was unemployed means any 
quarter during which the covered Part E employee had $700 (in constant 
2005 dollars) or less in wages unless the quarter is one during which 
the employee was retired.
    (e) Year of wage-loss means a calendar year during which the 
covered Part E employee's earnings were less than his or her average 
annual wage, after such earnings have been adjusted using the Consumer 
Price Index for All Urban Consumers (CPI-U), as produced by the Bureau 
of Labor Statistics, to reflect their value in the year during which 
the employee first experienced wage-loss due to exposure to a toxic 
substance at a DOE facility or RECA section 5 facility.

Evidence of Wage-Loss


Sec.  30.805  What evidence does OWCP use to determine a covered Part E 
employee's average annual wage and whether he or she experienced 
compensable wage-loss under Part E of EEOICPA?

    (a) OWCP may rely on quarterly wages information reported to the 
Social Security Administration to establish a covered Part E employee's 
presumed average annual wage (see Sec.  30.810) and the duration and 
extent of any years of wage-loss that are compensable under Part E of 
the Act (see Sec.  30.811). OWCP may also rely on other probative 
evidence of a covered Part E employee's wages, and may ask the claimant 
for additional evidence necessary to make this determination, if 
necessary.
    (b) OWCP also requires the submission of rationalized medical 
evidence of sufficient probative value to establish that the period of 
wage-loss at issue is causally related to the covered Part E employee's 
covered illness.


Sec.  30.806  May a claimant submit factual evidence in support of a 
different determination of average annual wage and/or wage-loss than 
that found by OWCP?

    A claimant who disagrees with the evidence OWCP has obtained under 
Sec.  30.805(a) and alleges a different average annual wage for the 
covered Part E employee, or that there was a greater duration or extent 
of wage-loss, may submit records that were produced in the ordinary 
course of business due to the employee's employment to rebut that 
evidence, to the extent that such records are determined to be 
authentic by OWCP by a preponderance of the evidence. The average 
annual wage and/or wage-loss of the covered Part E employee will then 
be determined by OWCP in the exercise of its discretion.

Determinations of Average Annual Wage and Percentages of Loss


Sec.  30.810  How will OWCP calculate the average annual wage of a 
covered Part E employee?

    To calculate the average annual wage of a covered Part E employee 
as defined in Sec.  30.801(a), OWCP will:
    (a) Aggregate the wages for the twelve quarters that preceded the 
quarter during which the covered Part E employee first experienced 
wage-loss due to exposure to a toxic substance at a DOE facility or a 
RECA section 5 facility, excluding any quarter during which the 
employee was unemployed;
    (b) Add any additional wages earned by the employee during those 
same quarters as evidenced by records described in Sec. Sec.  30.805(a) 
and 30.806;
    (c) Divide the sum of paragraphs (a) and (b) of this section by 12 
less the number of quarters during which the employee was unemployed; 
and
    (d) Multiply this figure by four to calculate the covered Part E 
employee's average annual wage.


Sec.  30.811  How will OWCP calculate the duration and extent of a 
covered Part E employee's initial period of compensable wage-loss?

    (a) To determine the initial calendar years of wage-loss, OWCP will 
use the evidence it receives under Sec. Sec.  30.805 and 30.806 to 
determine the quarter in which a covered Part E employee first 
sustained wage-loss due to exposure to a toxic substance while engaged 
in employment at a DOE facility or a RECA section 5 facility, as 
appropriate.
    (b) OWCP will then compare the calendar-year wages for that 
employee, as adjusted, with the average annual wage determined under 
Sec.  30.810 for each calendar year beginning with the calendar year 
that includes the quarter in which the wage-loss commenced, and 
concluding with the last calendar year of wage-loss prior to the 
submission of the claim or the calendar year in which the employee 
reached normal retirement age (as defined in Sec.  30.801(b), whichever 
occurred first.
    (c) OWCP will then aggregate separately the number of calendar 
years of wage-loss in which the employee's wages, as adjusted, did not 
exceed 50 percent of the average annual wage determined under Sec.  
30.810, and the number of calendar years of wage-loss in which the 
employee's wages, as adjusted, exceeded 50 percent of such average 
annual wage, but did not exceed 75 percent of such average annual wage.
    (d) For each calendar year of wage-loss determined under paragraph 
(c) of this section during which the employee's wages did not exceed 50 
percent of his or her average annual wage, OWCP will pay the employee 
$15,000 as compensation for wage-loss. For each calendar year of wage-
loss determined under paragraph (c) of this section during which the 
employee's calendar-year wages exceeded 50 percent of his or her 
average annual wage but did not exceed 75 percent of such average 
annual wage, OWCP will pay the employee $10,000 as compensation for 
wage-loss.


Sec.  30.812  May a covered Part E employee claim for subsequent 
periods of compensable wage-loss?

    A covered Part E employee previously awarded compensation for wage-
loss under Sec.  30.811 may file for additional compensation for wage-
loss suffered by the employee during periods subsequent to a period for 
which a wage-loss claim for the employee has already been adjudicated 
by OWCP. However, no compensation for wage-loss shall be awarded for 
any period following the year during which the covered Part E employee 
attained normal retirement

[[Page 33638]]

age for purposes of the Social Security Act as described in Sec.  
30.801(b).

Special Rules for Certain Survivor Claims Under Part E of EEOICPA


Sec.  30.815  Are there special rules that OWCP will use to determine 
the extent of a deceased covered Part E employee's compensable wage-
loss?

    (a) For purposes of adjudicating a claim of a survivor of a 
deceased covered Part E employee only, OWCP will presume that such 
employee experienced wage-loss for each calendar year subsequent to the 
calendar year of his or her death through and including the calendar 
year in which the employee would have reached normal retirement age 
under the Social Security Act. During these particular calendar years, 
OWCP will also presume that the deceased covered Part E employee's 
subsequent calendar-year wages did not exceed 50 percent of his or her 
average annual wage as determined under Sec.  30.810.
    (b) Except as provided in paragraph (a) of this section, OWCP will 
calculate the wage-loss of a deceased covered Part E employee in 
conformance with the provisions of Sec. Sec.  30.800 through 30.811.
    (c) If OWCP determines that a deceased covered Part E employee had 
an aggregate of not less than ten calendar years of adjusted earnings 
that did not exceed 50 percent of his or her average annual earnings, 
it will pay the eligible surviving beneficiary(s) additional 
compensation (the basic survivor award payable under section 7385s-
3(a)(1) is $125,000) in the amount of $25,000 pursuant to section 
7385s-3(a)(2) of the Act. In the alternative, if OWCP determines that 
the aggregate number of such years is not less than 20 years, it will 
pay the eligible surviving beneficiary(s) additional compensation in 
the amount of $50,000 pursuant to section 7385s-3(a)(3).

Subpart J--Impairment Benefits Under Part E of EEOICPA

General Provisions


Sec.  30.900  Who can receive impairment benefits under Part E of 
EEOICPA?

    In order to receive impairment benefits under Part E, the employee 
must show that:
    (a) He or she is a covered Part E employee who has been determined 
to have contracted a covered illness through exposure to a toxic 
substance at a DOE facility or a RECA section 5 facility, as 
appropriate, pursuant to either Sec. Sec.  30.210 through 30.215 or 
Sec. Sec.  30.230 through 30.232 of these regulations; and
    (b) He or she has been determined to have an impairment, pursuant 
to the regulations set out in this subpart, that is the result of the 
covered illness referred to in paragraph (a) of this section.


Sec.  30.901  How does OWCP determine the extent of an employee's 
impairment that is due to a covered illness contracted through exposure 
to a toxic substance at a DOE facility or a RECA section 5 facility, as 
appropriate?

    (a) OWCP will determine the amount of impairment benefits to which 
an employee is entitled based on one or more impairment evaluations 
submitted by physicians. An impairment evaluation shall contain the 
physician's opinion of:
    (1) The extent of whole person impairment of all organs and body 
functions of the employee that are compromised or otherwise affected by 
the employee's covered illness or illnesses, which shall be referred to 
as a ``minimum impairment rating''; and
    (2) the extent of such impairment attributable to an employee's 
covered illness or illnesses.
    (b) The minimum impairment rating shall be determined in accordance 
with the current edition of the American Medical Association's Guides 
to the Evaluation of Permanent Impairment (AMA's Guides). In making 
impairment benefit determinations, OWCP will only consider medical 
reports from physicians who are certified by the relevant medical board 
and who satisfy any additional criteria determined by OWCP to be 
necessary to qualify to perform impairment evaluations under Part E, 
including any specific training in use of the AMA's Guides, specific 
training and experience related to particular conditions and other 
objective factors.
    (c) OWCP will establish criteria based upon objective factors such 
as training and certification that must be met by physicians preparing 
impairment evaluations in order for an impairment evaluation to be 
considered in determining an impairment award. Such criteria shall be 
made available to claimants and the public by OWCP.
    (d) If one or more percentage points of the minimum impairment 
rating are found by OWCP to be the result of a covered illness, the 
employee is entitled to an award of impairment benefits.


Sec.  30.902  How will OWCP calculate the amount of the award of 
impairment benefits that is payable under Part E?

    OWCP will multiply the percentage points of the minimum impairment 
rating that are the result of the employee's covered illness or 
illnesses by $2,500 to calculate the amount of the award.

Medical Evidence of Impairment


Sec.  30.905  How may an impairment evaluation be obtained?

    (a) Except as provided in paragraph (b) of this section, OWCP may 
request that an employee undergo an evaluation of his or her impairment 
that specifies the percentage points that are the result of the 
employee's covered illness or illnesses. To be of any probative value, 
such evaluation must be performed by a physician who meets the criteria 
OWCP has identified for physicians performing impairment evaluations 
for the pertinent covered illness or illnesses in accordance with the 
AMA's Guides.
    (b) In lieu of submitting an evaluation requested by OWCP under 
paragraph (a) of this section, an employee may obtain an impairment 
evaluation at his own initiative and submit it to OWCP for 
consideration. Such an evaluation will be deemed to have sufficient 
probative value to be considered in the adjudication of impairment 
benefits by OWCP only if:
    (1) It was performed by a physician who meets the criteria 
identified by OWCP for the covered illness or illnesses in question;
    (2) It was performed no more than one year before the date that it 
was received by OWCP; and
    (3) It conforms to all applicable requirements set out in this 
part.


Sec.  30.906  Who will pay for an impairment evaluation?

    (a) OWCP will pay for one impairment evaluation obtained by an 
employee if it meets the criteria set out in Sec.  30.905(b), unless it 
was performed by a physician prior to the date that the claim for Part 
E benefits is filed, or obtained for a claim in which OWCP finds that 
the employee did not contract a covered illness. At its discretion, 
OWCP may direct that the employee undergo additional evaluations at its 
expense. OWCP will pay for any such additional evaluations and will 
reimburse the employee for any reasonable and necessary costs incident 
to the evaluations, as described in Sec. Sec.  30.404 and 30.412 of 
this part.
    (b) Except for one impairment evaluation obtained pursuant to Sec.  
30.905(b) and meeting the criteria set out in Sec.  30.905(b)(1), (2) 
and (3), the employee must pay for any impairment evaluations not 
directed by OWCP.

[[Page 33639]]

Sec.  30.907  Can an impairment evaluation obtained by OWCP be 
challenged prior to issuance of the recommended decision?

    (a) An employee may submit arguments challenging an impairment 
evaluation, and/or additional medical evidence of impairment, before 
the district office issues a recommended decision on his or her claim. 
However, the district office will not consider an additional impairment 
evaluation, even if it differs from the impairment evaluation obtained 
under Sec. Sec.  30.905 or 30.906, if it does not meet the criteria 
listed in Sec.  30.905(b)(1), (2) and (3).
    (b) If the district office obtains an additional impairment 
evaluation that differs from the impairment evaluation obtained under 
Sec. Sec.  30.905 or 30.906, the district office will base its 
recommended determinations regarding impairment upon the evidence it 
considers to have the greatest probative value, after evaluating all 
relevant evidence of impairment in the record, including evidence from 
directed medical examinations that it deems necessary pursuant to 
Sec. Sec.  30.410 and 30.411 of this part.


Sec.  30.908  How will the FAB evaluate new medical evidence submitted 
to challenge the impairment determination in the recommended decision?

    (a) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will not consider the additional impairment evaluation 
if it does not meet the criteria listed in Sec.  30.905(b)(1), (2) and 
(3).
    (b) The employee shall bear the burden of proving that the 
additional impairment evaluation submitted is more probative than the 
evaluation relied upon by the district office to determine the 
employee's recommended minimum impairment rating and the percentage 
points of such rating that are the result of the employee's covered 
illness or illnesses.
    (c) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will review all relevant evidence of impairment in the 
record, and will base its determinations regarding impairment upon the 
evidence it considers to be most probative. The FAB will determine the 
minimum impairment rating and the percentage points of the rating that 
are the result of the employee's covered illness or illnesses after it 
has evaluated all relevant evidence and argument in the record.

Ratable Medical Impairments


Sec.  30.910  Will an impairment that cannot be assigned a numerical 
percentage using the AMA's Guides be included in the impairment rating?

    (a) An impairment that cannot be assigned a numerical impairment 
percentage using the AMA's Guides will not be included in the 
employee's impairment rating.
    (b) A mental impairment that does not originate from a documented 
physical dysfunction of the nervous system, and cannot be assigned a 
numerical percentage using the AMA's Guides, will not be included in 
the impairment rating for the employee. Mental impairments that are due 
to documented physical dysfunctions of the nervous system can be 
assigned numerical percentages using the AMA's Guides and will be 
included in the rating.


Sec.  30.911  Does maximum medical improvement always have to be 
reached for an impairment to be included in the impairment rating?

    (a) An impairment that is the result of a covered illness will be 
included in the employee's impairment rating determined by OWCP under 
Sec.  30.901 only if OWCP concludes that the impairment has reached 
maximum medical improvement, which means that it is well-stabilized and 
unlikely to change substantially with or without medical treatment.
    (b) Notwithstanding paragraph (a) of this section, if OWCP finds 
that an employee's covered illness is in the terminal stages, based 
upon probative medical evidence, an impairment that results from such 
covered illness will be included in the impairment rating for the 
employee even if it has not reached maximum medical improvement.


Sec.  30.912  Can a covered Part E employee receive benefits for 
additional impairment following an award of such benefits by OWCP?

    A covered Part E employee previously awarded impairment benefits by 
OWCP may file a claim for additional impairment benefits. Such claim 
must be based on an increase in the impairment rating that is the 
result of the covered illness or illnesses from the impairment rating 
that formed the basis for the last award of such benefits by OWCP. OWCP 
will only adjudicate claims for such an increased rating that are filed 
at least two years from the date of the last award of impairment 
benefits. However, OWCP will not wait two years before it will 
adjudicate a claim for additional impairment that is based on an 
allegation that the employee sustained a new covered illness.

    Signed at Washington, DC, this 26th day of May 2005.
Victoria A. Lipnic,
Assistant Secretary of Labor for Employment Standards.
[FR Doc. 05-10936 Filed 6-7-05; 8:45 am]
BILLING CODE 4510-CR-P