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e-CFR=20 Data is current as of February 7, 2011


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PART 702=97ADMINISTRATION AND PROCEDURE
Section Contents

Subpart=20 A=97General Provisions


Administration=
=A7 702.101 &nb= sp; [Reserved]
=A7 702.102 &nb= sp; Establishment=20 and modification of compensation districts, establishment of = suboffices=20 and jurisdictional areas.
=A7 702.103 &nb= sp; Effect=20 of establishment of suboffices and jurisdictional=20 areas.
=A7 702.104 &nb= sp; Transfer=20 of individual case file.
=A7 702.105 &nb= sp; Use=20 of the title District Director in place of Deputy=20 Commissioner.

Records=
=A7 702.111 &nb= sp; Employer's=20 records.
=A7 702.112 &nb= sp; Records=20 of the OWCP.
=A7 702.113 &nb= sp; Inspection=20 of records of the OWCP.
=A7 702.114 &nb= sp; Copying=20 of records of OWCP.

Forms=A7 702.121 &n= bsp; Forms.

Representation=
=A7 702.131 &n= bsp; Representation=20 of parties in interest.
=A7 702.132 &n= bsp; Fees=20 for services.
=A7 702.133 &n= bsp; Unapproved=20 fees; solicitation of claimants; penalties.
=A7 702.134 &n= bsp; Payment=20 of claimant's attorney's fees in disputed = claims.
=A7 702.135 &n= bsp; Payment=20 of claimant's witness fees and mileage in disputed=20 claims.

Information=20 and Assistance for Claimants
=A7 702.136 &n= bsp; Requests=20 for information and assistance.

Commutation=20 of Payments and Special Fund
=A7 702.142 &n= bsp; Commutation=20 of payments; aliens not residents or about to become=20 nonresidents.
=A7 702.143 &n= bsp; Establishment=20 of special fund.
=A7 702.144 &n= bsp; Purpose=20 of the special fund.
=A7 702.145 &n= bsp; Use=20 of the special fund.
=A7 702.146 &n= bsp; Source=20 of the special fund.
=A7 702.147 &n= bsp; Enforcement=20 of special fund provisions.
=A7 702.148 &n= bsp; Insurance=20 carriers' and self-insured employers'=20 responsibilities.

Liens=20 on Compensation
=A7 702.161 &n= bsp; Liens=20 against assets of insurance carriers and = employers.
=A7 702.162 &n= bsp; Liens=20 on compensation authorized under special=20 circumstances.

Certification=20 of Exemption
=A7 702.171 &n= bsp; Certification=20 of exemption, general.
=A7 702.172 &n= bsp; Certification;=20 definitions.
=A7 702.173 &n= bsp; Exemptions;=20 requirements, limitations.
=A7 702.174 &n= bsp; Exemptions;=20 necessary information.
=A7 702.175 &n= bsp; Effect=20 of work on excluded vessels; reinstatement of=20 certification.

Subpart=20 B=97Claims Procedures


Employer's=20 Reports
=A7 702.201 &nb= sp; Reports=20 from employers of employee's injury or death.
=A7 702.202 &nb= sp; Employer's=20 report; form and contents.
=A7 702.203 &nb= sp; Employer's=20 report; how given.
=A7 702.204 &nb= sp; Employer's=20 report; penalty for failure to furnish and or=20 falsifying.
=A7 702.205 &nb= sp; Employer's=20 report; effect of failure to report upon time=20 limitations.

Notice<= BR>=A7 702.211 &nb= sp; Notice=20 of employee's injury or death; designation of responsible=20 official.
=A7 702.212 &nb= sp; Notice;=20 when given; when given for certain occupational=20 diseases.
=A7 702.213 &nb= sp; Notice;=20 by whom given.
=A7 702.214 &nb= sp; Notice;=20 form and content.
=A7 702.215 &n= bsp; Notice;=20 how given.
=A7 702.216 &n= bsp; Effect=20 of failure to give notice.
=A7 702.217 &n= bsp; Penalty=20 for false statement, misrepresentation.

Claims<= BR>=A7 702.221 &n= bsp; Claims=20 for compensation; time limitations.
=A7 702.222 &n= bsp; Claims;=20 exceptions to time limitations.
=A7 702.223 &n= bsp; Claims;=20 time limitations; time to object.
=A7 702.224 &n= bsp; Claims;=20 notification of employer of filing by = employee.
=A7 702.225 &n= bsp; Withdrawal=20 of a claim.

Noncontroverted=20 Claims
=A7 702.231 &n= bsp; Noncontroverted=20 claims; payment of compensation without an = award.
=A7 702.232 &n= bsp; Payments=20 without an award; when; how paid.
=A7 702.233 &n= bsp; Penalty=20 for failure to pay without an award.
=A7 702.234 &n= bsp; Report=20 by employer of commencement and suspension of=20 payments.
=A7 702.235 &n= bsp; Report=20 by employer of final payment of compensation.
=A7 702.236 &n= bsp; Penalty=20 for failure to report termination of payments.

Agreed=20 Settlements
=A7 702.241 &n= bsp; Definitions=20 and supplementary information.
=A7 702.242 &n= bsp; Information=20 necessary for a complete settlement = application.
=A7 702.243 &n= bsp; Settlement=20 application; how submitted, how approved, how disapproved,=20 criteria.

Controverted=20 Claims
=A7 702.251 &n= bsp; Employer's=20 controversion of the right to compensation.
=A7 702.252 &n= bsp; Action=20 by district director upon receipt of notice of=20 controversion.

Contested=20 Claims
=A7 702.261 &n= bsp; Claimant's=20 contest of actions taken by employer or carrier with respect to = the=20 claim.
=A7 702.262 &n= bsp; Action=20 by district director upon receipt of notice of=20 contest.

Discrimination=
=A7 702.271 &n= bsp; Discrimination;=20 against employees who bring proceedings, prohibition and=20 penalty.
=A7 702.272 &n= bsp; Informal=20 recommendation by district director.
=A7 702.273 &n= bsp; Adjudication=20 by Office of the Chief Administrative Law = Judge.
=A7 702.274 &n= bsp; Employer's=20 refusal to pay penalty.

Third=20 Party
=A7 702.281 &n= bsp; Third=20 party action.

Report=20 of Earnings
=A7 702.285 &n= bsp; Report=20 of earnings.
=A7 702.286 &n= bsp; Report=20 of earnings; forfeiture of compensation.

Subpart=20 C=97Adjudication Procedures


General=
=A7 702.301 &nb= sp; Scope=20 of this subpart.

Action=20 by District Directors
=A7 702.311 &nb= sp; Handling=20 of claims matters by district directors; informal=20 conferences.
=A7 702.312 &nb= sp; Informal=20 conferences; called by and held before whom.
=A7 702.313 &nb= sp; Informal=20 conferences; how called; when called.
=A7 702.314 &nb= sp; Informal=20 conferences; how conducted; where held.
=A7 702.315 &nb= sp; Conclusion=20 of conference; agreement on all matters with respect to the=20 claim.
=A7 702.316 &nb= sp; Conclusion=20 of conference; no agreement on all matters with respect to the=20 claim.
=A7 702.317 &nb= sp; Preparation=20 and transfer of the case for hearing.
=A7 702.318 &nb= sp; The=20 record; what constitutes; nontransferability of the administrative = file.
=A7 702.319 &n= bsp; Obtaining=20 documents from the administrative file for reintroduction at = formal=20 hearings.

Special=20 Fund
=A7 702.321 &n= bsp; Procedures=20 for determining applicability of section 8(f) of the=20 Act.

Formal=20 Hearings
=A7 702.331 &n= bsp; Formal=20 hearings; procedure initiating.
=A7 702.332 &n= bsp; Formal=20 hearings; how conducted.
=A7 702.333 &n= bsp; Formal=20 hearings; parties.
=A7 702.334 &n= bsp; Formal=20 hearings; representatives of parties.
=A7 702.335 &n= bsp; Formal=20 hearings; notice.
=A7 702.336 &n= bsp; Formal=20 hearings; new issues.
=A7 702.337 &n= bsp; Formal=20 hearings; change of time or place for hearings;=20 postponements.
=A7 702.338 &n= bsp; Formal=20 hearings; general procedures.
=A7 702.339 &n= bsp; Formal=20 hearings; evidence.
=A7 702.340 &n= bsp; Formal=20 hearings; witnesses.
=A7 702.341 &n= bsp; Formal=20 hearings; depositions; interrogatories.
=A7 702.342 &n= bsp; Formal=20 hearings; witness fees.
=A7 702.343 &n= bsp; Formal=20 hearings; oral argument and written = allegations.
=A7 702.344 &n= bsp; Formal=20 hearings; record of hearing.
=A7 702.345 &n= bsp; Formal=20 hearings; consolidated issues; consolidated = cases.
=A7 702.346 &n= bsp; Formal=20 hearings; waiver of right to appear.
=A7 702.347 &n= bsp; Formal=20 hearings; termination.
=A7 702.348 &n= bsp; Formal=20 hearings; preparation of final decision and order;=20 content.
=A7 702.349 &n= bsp; Formal=20 hearings; filing and mailing of compensation orders; disposition = of=20 transcripts.
=A7 702.350 &n= bsp; Finality=20 of compensation orders.
=A7 702.351 &n= bsp; Withdrawal=20 of controversion of issues set for formal hearing;=20 effect.

Interlocutory=20 Matters, Supplementary Orders, and=20 Modifications
=A7 702.371 &n= bsp; Interlocutory=20 matters.
=A7 702.372 &n= bsp; Supplementary=20 compensation orders.
=A7 702.373 &n= bsp; Modification=20 of awards.

Appeals=
=A7 702.391 &n= bsp; Appeals;=20 where.
=A7 702.392 &n= bsp; Appeals;=20 what may be appealed.
=A7 702.393 &n= bsp; Appeals;=20 time limitations.
=A7 702.394 &n= bsp; Appeals;=20 procedure.

Subpart=20 D=97Medical Care and = Supervision

=A7 702.401 &nb= sp; Medical=20 care defined.
=A7 702.402 &nb= sp; Employer's=20 duty to furnish; duration.
=A7 702.403 &nb= sp; Employee's=20 right to choose physician; limitations.
=A7 702.404 &nb= sp; Physician=20 defined.
=A7 702.405 &nb= sp; Selection=20 of physician; emergencies.
=A7 702.406 &nb= sp; Change=20 of physicians; non-emergencies.
=A7 702.407 &nb= sp; Supervision=20 of medical care.
=A7 702.408 &nb= sp; Evaluation=20 of medical questions; impartial specialists.
=A7 702.409 &nb= sp; Evaluation=20 of medical questions; results disputed.
=A7 702.410 &n= bsp; Duties=20 of employees with respect to special = examinations.
=A7 702.411 &n= bsp; Special=20 examinations; nature of impartiality of = specialists.
=A7 702.412 &n= bsp; Special=20 examinations; costs chargeable to employer or = carrier.
=A7 702.413 &n= bsp; Fees=20 for medical services; prevailing community = charges.
=A7 702.414 &n= bsp; Fees=20 for medical services; unresolved disputes on prevailing=20 charges.
=A7 702.415 &n= bsp; Fees=20 for medical services; unresolved disputes on charges;=20 procedure.
=A7 702.416 &n= bsp; Fees=20 for medical services; disputes; hearings; necessary=20 parties.
=A7 702.417 &n= bsp; Fees=20 for medical services; disputes; effect of adverse=20 decision.

Medical=20 Procedures
=A7 702.418 &n= bsp; Procedure=20 for requesting medical care; employee's duty to notify=20 employer.
=A7 702.419 &n= bsp; Action=20 by employer upon acquiring knowledge or being given notice of=20 injury.
=A7 702.420 &n= bsp; Issuance=20 of authorization; binding effect upon insurance=20 carrier.
=A7 702.421 &n= bsp; Effect=20 of failure to obtain initial authorization.
=A7 702.422 &n= bsp; Effect=20 of failure to report on medical care after initial=20 authorization.

Debarment=20 of Physicians and Other Providers of Medical Services and = Suppliers and=20 Claims Representatives
=A7 702.431 &n= bsp; Grounds=20 for debarment.
=A7 702.432 &n= bsp; Debarment=20 process.
=A7 702.433 &n= bsp; Requests=20 for hearing.
=A7 702.434 &n= bsp; Judicial=20 review.
=A7 702.435 &n= bsp; Effects=20 of debarment.
=A7 702.436 &n= bsp; Reinstatement.

Hearing=20 Loss Claims
=A7 702.441 &n= bsp; Claims=20 for loss of hearing.

Subpart=20 E=97Vocational = Rehabilitation

=A7 702.501 &nb= sp; Vocational=20 rehabilitation; objective.
=A7 702.502 &nb= sp; Vocational=20 rehabilitation; action by district directors.
=A7 702.503 &nb= sp; Vocational=20 rehabilitation; action by adviser.
=A7 702.504 &nb= sp; Vocational=20 rehabilitation; referrals to State Employment=20 Agencies.
=A7 702.505 &nb= sp; Vocational=20 rehabilitation; referrals to other public and private=20 agencies.
=A7 702.506 &nb= sp; Vocational=20 rehabilitation; training.
=A7 702.507 &nb= sp; Vocational=20 rehabilitation; maintenance allowance.
=A7 702.508 &nb= sp; Vocational=20 rehabilitation; confidentiality of = information.

Subpart=20 F=97Occupational Disease Which Does Not Immediately Result in = Death or=20 Disability

=A7 702.601 &nb= sp; Definitions.
=A7 702.602 &nb= sp; Notice=20 and claims.
=A7 702.603 &nb= sp; Determining=20 the payrate for compensating occupational disease claims which = become=20 manifest after retirement.
=A7 702.604 &nb= sp; Determining=20 the amount of compensation for occupational disease claims which = become=20 manifest after retirement.

Authority:   5 U.S.C. 301, = 8171 et=20 seq., Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR = 1949=961953,=20 Comp., p. 1004, 64 Stat. 1263; 28 U.S.C. 2461, 33 U.S.C. 930, 36 = D.C. Code=20 501 et seq., 42 U.S.C. 1651 et seq., 43 U.S.C. 1331; = Secretary's Order 5=9696, 62 FR 107.

Source:   38 FR 26861, Sept. = 26, 1973,=20 unless otherwise noted.

Subpart A=97General Provisions
=20 top
Administration
=20 top
=A7 702.101   [Reserved]
=20 top
=A7 702.102   Establishment and = modification of=20 compensation districts, establishment of suboffices and = jurisdictional=20 areas.
=20 top

(a) The Director has, pursuant to section 39(b) of the = Longshore and=20 Harbor Workers' Compensation Act, 33 U.S.C. 939(b), established=20 compensation districts as required for improved administration or = as=20 otherwise determined by the Director (see 51 FR 4282, Feb. 3, = 1986). The=20 boundaries of the compensation districts may be modified at any = time, and=20 the Director shall notify all interested parties directly by mail = of the=20 modifications.

(b) As administrative exigencies from time to time may require, = the=20 Director may, by administrative order, establish special areas = outside the=20 continental United States, Alaska, and Hawaii, or change or modify = any=20 areas so established, notwithstanding their inclusion within an=20 established compensation district. Such areas shall be designated=20 =93jurisdictional areas.=94 The Director shall also designate = which of his=20 district directors shall be in charge thereof.

(c) To further aid in the efficient administration of the OWCP, = the=20 Director may from time to time establish suboffices within = compensation=20 districts or jurisdictional areas, and shall designate a person to = be in=20 charge thereof.

[38 FR 26861, Sept. 26, 1973, as amended at 60 FR 51348, Oct. = 2,=20 1995]

=A7 702.103   Effect of establishment of = suboffices=20 and jurisdictional areas.
=20 top

Whenever the Director establishes a suboffice or jurisdictional = area,=20 those reports, records, or other documents with respect to = processing of=20 claims that are required to be filed with the district director of = the=20 compensation district in which the injury or death occurred, may = instead=20 be required to be filed at the suboffice, or office established = for the=20 jurisdictional area.

=A7 702.104   Transfer of individual case=20 file.
=20 top

(a) At any time after a claim is filed, the district director = having=20 jurisdiction thereof may, with the prior or subsequent approval of = the=20 Director, transfer such case to the district director in another=20 compensation district for the purpose of making an investigation, = ordering=20 medical examinations, or taking such other action as may be = necessary or=20 appropriate to further develop the claim. If, after filing a = claim, the=20 claimant moves to another compensation district, the district = director=20 may, upon request by the claimant or the employer and with the = approval of=20 the Director, transfer the case to such other compensation = district.

(b) The district director making the transfer may by letter or=20 memorandum to the district director to whom the case is = transferred give=20 advice, comments, suggestions, or directions if appropriate to the = particular case. The transfer of cases shall be by registered or = certified=20 mail. All interested parties shall be advised of the transfer.

[42 FR 45301, Sept. 9, 1977]

=A7 702.105   Use of the title District = Director in=20 place of Deputy Commissioner.
=20 top

Wherever the statute refers to Deputy Commissioner, these = regulations=20 have substituted the term District Director. The substitution is = purely an=20 administrative one, and in no way effects the authority of or the = powers=20 granted and responsibilities imposed by the statute on that = position.

[55 FR 28606, July 12, 1990]

Records
=20 top
=A7 702.111   Employer's = records.
=20 top

Every employer shall maintain adequate records of injury = sustained by=20 employees while in his employ, and which shall also contain = information of=20 disease, other impairments or disabilities, or death relating to = said=20 injury. Such records shall be available for inspection by the OWCP = or by=20 any State authority. Records required by this section shall be = retained by=20 the employer for three years following the date of injury; this = applies to=20 records for lost-time and no-lost-time injuries.

(Approved by = the=20 Office of Management and Budget under control number 1215=960160)

(Pub. L. No. 96=96511, 94 Stat. 2812 (44 U.S.C. 3501 et seq. = ))

[38 FR 26861, Sept. 26, 1973, as amended at 47 FR 145, Jan. 5, = 1982; 50=20 FR 393, Jan. 3, 1985]

=A7 702.112   Records of the = OWCP.
=20 top

All reports, records, or other documents filed with the OWCP = with=20 respect to claims are the records of the OWCP. The Director shall = be the=20 official custodian of those records maintained by the OWCP at its = national=20 office, and the district director shall be the official custodian = of those=20 records maintained at the headquarters office in each compensation = district.

=A7 702.113   Inspection of records of the = OWCP.
=20 top

Any party in interest may be permitted to examine the record of = the=20 case in which he is interested. The official custodian of the = record=20 sought to be inspected shall permit or deny inspection in = accordance with=20 the Department of Labor's regulations pertaining thereto (see 29 = CFR part=20 70). The original record in any such case shall not be removed = from the=20 office of the custodian for such inspection. The custodian may, in = his=20 discretion, deny inspection of any record or part thereof which is = of a=20 character specified in 5 U.S.C. 552(b) if in his opinion such = inspection=20 may result in damage, harm, or harassment to the beneficiary or to = any=20 other person. For special provisions concerning release of = information=20 regarding injured employees undergoing vocational rehabilitation, = see=20 =A7702.508.

=A7 702.114   Copying of records of = OWCP.
=20 top

Any party in interest may request copies of records he has been = permitted to inspect. Such requests shall be addressed to the = official=20 custodian of the records sought to be copied. The official = custodian shall=20 provide the requested copies under the terms and conditions = specified in=20 the Department of Labor's regulations relating thereto (see 29 CFR = part=20 70).

Forms
=20 top
=A7 702.121   Forms.
=20 top

The Director may from time to time prescribe, and require the = use of,=20 forms for the reporting of any information required to be reported = by the=20 regulations in this subchapter, or by the Act or any of its=20 extensions.

Representation
=20 top
=A7 702.131   Representation of parties in = interest.
=20 top

(a) Claimants, employers and insurance carriers may be = represented in=20 any proceeding under the Act by an attorney or other person = previously=20 authorized in writing by such claimant, employer or carrier to so = act.

(b) The Secretary shall annually publish a list of individuals = who are=20 disqualified from representing claimants under the Act. = Individuals on=20 this list are not authorized to represent claimants under the Act = subject=20 to the provision of section 31(b)(2)(C) of the Act, 33 U.S.C.=20 931(b)(2)(C), and they shall not have their representation fee = approved as=20 provided in section 28(e), 33 U.S.C. 928(e).

(c) Individuals shall be included on the list mentioned in (b) = if the=20 Secretary determines, after proceedings under =A7=A7702.432(b) = through=20 702.434, that such individual:

(1) Has been convicted (without regard to pending appeal) of = any crime=20 in connection with the representation of a claimant under this Act = or any=20 workers' compensation statute;

(2) Has engaged in fraud in connection with the presentation of = a claim=20 under this or any workers' compensation statute, including, but = not=20 limited to, knowingly making false representations, concealing or=20 attempting to conceal material facts with respect to a claim, or=20 soliciting or otherwise procuring false testimony;

(3) Has been prohibited from representing claimants before any = other=20 workers' compensation agency for reasons of professional = misconduct which=20 are similar in nature to those which would be grounds for = disqualification=20 under this section; or

(4) Has accepted fees for representing claimants under the Act = which=20 were not approved, or which were in excess of the amount approved = pursuant=20 to section 28 of the Act, 33 U.S.C. 928.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 394, Jan. 3,=20 1985]

=A7 702.132   Fees for = services.
=20 top

(a) Any person seeking a fee for services performed on behalf = of a=20 claimant with respect to claims filed under the Act shall make = application=20 therefor to the district director, administrative law judge, = Board, or=20 court, as the case may be, before whom the services were performed = (See 33=20 U.S.C. 928(c)). The application shall be filed and serviced upon = the other=20 parties within the time limits specified by such district = director,=20 administrative law judge, Board, or court. The application shall = be=20 supported by a complete statement of the extent and character of = the=20 necessary work done, described with particularity as to the = professional=20 status (e.g., attorney, paralegal, law clerk, or other person = assisting an=20 attorney) of each person performing such work, the normal billing = rate for=20 each such person, and the hours devoted by each such person to = each=20 category of work. Any fee approved shall be reasonably = commensurate with=20 the necessary work done and shall take into account the quality of = the=20 representation, the complexity of the legal issues involved, and = the=20 amount of benefits awarded, and when the fee is to be assessed = against the=20 claimant, shall also take into account the financial circumstances = of the=20 claimant. No contract pertaining to the amount of a fee shall be=20 recognized.

(b) No fee shall be approved for a representative whose name = appears on=20 the Secretary's list of disqualified representatives under=20 =A7702.131(b).

(c) Where fees are included in a settlement agreement submitted = under=20 =A7702.241, et seq. approval of that agreement shall be = deemed=20 approval of attorney fees for purposes of this subsection for work = performed before the Administrative Law Judge or district director = approving the settlement.

[50 FR 394, Jan. 3, 1985]

=A7 702.133   Unapproved fees; = solicitation of=20 claimants; penalties.
=20 top

Under the provisions of section 28(e) of the Act, 33 U.S.C. = 928(e), any=20 person who receives any fees, other consideration, or any gratuity = on=20 account of services rendered as a representative of a claimant, = unless=20 such consideration or gratuity is approved under =A7702.132, or = who makes it=20 a business to solicit employment for an attorney, or for himself = in=20 respect of any claim under the Act, shall upon conviction thereof, = for=20 each offense be punished by a fine of not more than $1,000 or by=20 imprisonment for not more than 1 year, or by both fine and=20 imprisonment.

=A7 702.134   Payment of claimant's = attorney's fees=20 in disputed claims.
=20 top

(a) If the employer or carrier declines to pay any compensation = on or=20 before the 30th day after receiving written notice from the = district=20 director of a claim for compensation having been filed, on the = ground that=20 there is no liability for compensation within the provisions of = this Act,=20 and the person seeking benefits shall thereafter have utilized the = services of an attorney at law in the successful prosecution of = his claim,=20 there shall be awarded, in addition to the award of compensation, = in a=20 compensation order, a reasonable attorney's fee against the = employer or=20 carrier in an amount approved by the person, administrative body = or court=20 before whom the service was performed, which shall be paid = directly by the=20 employer or carrier to the attorney for the claimant in a lump sum = after=20 the compensation order becomes final (Act, section 28(a)).

(b) If the employer or carrier pays or tenders payment of = compensation=20 without an award pursuant to =A7702.231 and section 14 (a) and (b) = of this=20 Act, and thereafter a controversy develops over the amount of = additional=20 compensation, if any, to which the employee may be entitled, the = district=20 director, administrative law judge, or Board shall set the matter = for an=20 informal conference and following such conference the district = director,=20 administrative law judge, or Board shall recommend in writing a=20 disposition of the controversy. If the employer or carrier refuses = to=20 accept such written recommendation, within 14 days after its = receipt by=20 them, they shall pay or tender to the employee in writing the = additional=20 compensation, if any, to which they believe the employee is = entitled. If=20 the employee refuses to accept such payment or tender of = compensation, and=20 thereafter utilizes the services of an attorney at law, and if the = compensation thereafter awarded is greater than the amount paid or = tendered by the employer or carrier, a reasonable attorney's fee = based=20 solely upon the difference between the amount awarded and the = amount=20 tendered or paid shall be awarded in addition to the amount of=20 compensation. The foregoing sentence shall not apply if the = controversy=20 relates to degree or length of disability, and if the employer or = carrier=20 offers to submit the case for evaluation by physicians employed or = selected by the district director, as authorized by section 7(e) = of the=20 Act and =A7702.408, and offers to tender an amount of compensation = based=20 upon the degree or length of disability found by the independent = medical=20 report at such time as an evaluation of disability can be made. If = the=20 claimant is successful in review proceedings before the Board or = court in=20 any such case an award may be made in favor of the claimant and = against=20 the employer or carrier for a reasonable attorney's fee for = claimant's=20 counsel in accord with the above provisions. In all other cases = any claim=20 for legal services shall not be assessed against the employer or = carrier=20 (see Act, section 28(b)).

=A7 702.135   Payment of claimant's = witness fees and=20 mileage in disputed claims.
=20 top

In cases where an attorney's fee is awarded against an employer = or=20 carrier there may be further assessed against such employer or = carrier as=20 costs, fees and mileage for necessary witnesses attending the = hearing at=20 the instance of claimant. Both the necessity for the witness and = the=20 reasonableness of the fees of expert witnesses must be approved by = the=20 hearing officer, the Board, or the court, as the case may be. The = amounts=20 awarded against an employer or carrier as attorney's fees, costs, = fees and=20 mileage for witnesses shall not in any respect affect or diminish = the=20 compensation payable under this Act (see Act, section 28 = (d)).

Information and Assistance for Claimants
=20 top
=A7 702.136   Requests for information and = assistance.
=20 top

(a) General assistance. The Director shall, upon = request,=20 provide persons covered by the Act with information and assistance = relating to the Act's coverage and compensation and the procedures = for=20 obtaining such compensation including assistance in processing a=20 claim.

(b) Legal assistance to claimants. The Secretary may, = upon=20 request, provide a claimant with legal assistance in processing a = claim=20 under the Act. Such assistance may be made available to a claimant = in the=20 discretion of the Solicitor of Labor or his designee at any time = prior to=20 or during which the claim is being processed and shall be = furnished=20 without charge to the claimant. Legal representation of the = claimant in=20 adjudicatory proceedings may be furnished in cases in which the=20 Secretary's interest in the case is not adverse to that of the=20 claimant.

(c) Other assistance. The district directors and their = staff, as=20 designees of the Director, shall promptly and fully comply with = the=20 request of a claimant receiving compensation for information = about, and=20 assistance in obtaining, medical, manpower, and vocational = rehabilitation=20 services (see also subparts D and E of this part).

Commutation of Payments and Special Fund
=20 top
=A7 702.142   Commutation of payments; = aliens not=20 residents or about to become nonresidents.
=20 top

(a) Pursuant to section 9(g) of the Act, 33 U.S.C. 909(g), = compensation=20 paid to aliens not residents, or about to become nonresidents, of = the=20 United States or Canada shall be in the same amount as provided = for=20 residents except that dependents in any foreign country shall be = limited=20 to surviving spouse and child or children, or if there be no = surviving=20 spouse or child or children, to surviving father or mother whom = the=20 employee has supported, either wholly or in part, for the period = of 1 year=20 prior to the date of injury, and except that the Director, OWCP, = may, at=20 his option, or upon the application of the insurance carrier he = shall,=20 commute all future installments of compensation to be paid to such = aliens=20 by paying or causing to be paid to them one-half of the commuted = amount of=20 such future installments of compensation as determined by the=20 Director.

(b) Applications for commutation under this section shall be = made in=20 writing to the district director having jurisdiction, and = forwarded by the=20 district director to the Director, for final action.

(c) Applications for commutations shall be made effective, if = approved=20 by the Director, on the date received by the district director, or = on a=20 later date if shown to be appropriate on the application.

(d) Commutations shall not be made with respect to a person = journeying=20 abroad for a visit who has previously declared an intention to = return and=20 has stated a time for returning, nor shall any commutation be made = except=20 upon the basis of a compensation order fixing the right of the = beneficiary=20 to compensation.

[50 FR 394, Jan. 3, 1985]

=A7 702.143   Establishment of special=20 fund.
=20 top

Congress, by section 44 of the Act, 33 U.S.C. 944, established = in the=20 U.S. Treasury a special fund, to be administered by the Secretary. = The=20 Treasurer of the United States is the custodian of such fund, and = all=20 monies and securities in such fund shall be held in trust by the = Treasurer=20 and shall not be money or property of the United States. The = Treasurer=20 shall make disbursements from such funds only upon the order of = the=20 Director, OWCP, as delegatee of the Secretary. The Act requires = that the=20 Treasurer give bond, in an amount to be fixed and with securities = to be=20 approved by the Secretary of the Treasury and the Comptroller = General of=20 the United States, conditioned upon the faithful performance of = his duty=20 as custodian of such fund.

=A7 702.144   Purpose of the special=20 fund.
=20 top

This special fund was established to give effect to a = congressional=20 policy determination that, under certain circumstances, the = employer of a=20 particular employee should not be required to bear the entire = burden of=20 paying for the compensation benefits due that employee under the = Act.=20 Instead, a substantial portion of such burden should be borne by = the=20 industry generally. Section 702.145 describes this special = circumstance=20 under which the particular employer is relieved of some of his = burden.=20 Section 702.146 describes the manner and circumstances of the = input into=20 the fund.

=A7 702.145   Use of the special = fund.
=20 top

(a) Under section 10 of the Act. This section provides = for=20 initial and subsequent annual adjustments in compensation and = continuing=20 payments to beneficiaries in cases of permanent total disability = or death=20 which commenced or occurred prior to enactment of the 1972 = Amendments to=20 this Act (Pub. L. 92=96576, approved Oct. 27, 1972). At the = discretion of=20 the Director, such payments may be paid directly by him to = eligible=20 beneficiaries as the obligation accrues, one-half from the special = fund=20 and one-half from appropriations, or he may require insurance = carriers or=20 self-insured employers already making payments to such = beneficiaries to=20 pay such additional compensation as the amended Act requires. In = the=20 latter case such carriers and self-insurers shall be reimbursed by = the=20 Director for such additional amounts paid, in the proportion of = one-half=20 the amount from the special fund and one-half the amount from=20 appropriations. To obtain reimbursement, the carriers and = self-insurers=20 shall submit claims for payments made by them during previous = periods at=20 intervals of not less than 6 months. A form has been prescribed = for such=20 purpose and shall be used. No administrative claims service = expense=20 incurred by the carrier or self-insurer shall be included in the = claim and=20 no such expense shall be allowed. The amounts reimbursed to such = carrier=20 or self-insurer shall be limited to amounts actually due and = previously=20 paid to beneficiaries.

(b) Under section 8(f) of the Act (Second Injuries). In any = case in=20 which an employee having an existing permanent partial disability = suffers=20 injury, the employer shall provide compensation for such = disability as is=20 found to be attributable to that injury based upon the average = weekly=20 wages of the employee at the time of injury. If, following an = injury=20 falling within the provisions of section 8(c)(1)=96(20), the = employee with=20 the pre-existing permanent partial disability becomes permanently = and=20 totally disabled after the second injury, but such total = disability is=20 found not to be due solely to his second injury, the employer (or = carrier)=20 shall be liable for compensation as provided by the provisions of = section=20 8(c)(1)=96(20) of the Act, 33 U.S.C. 908(c)(1)=96(20) or for 104 = weeks,=20 whichever is greater. However, if the injury is a loss of hearing = covered=20 by section 8(c)(13), 33 U.S.C. 908(c)(13), the liability shall be = the=20 lesser of these periods. In all other cases of a second injury = causing=20 permanent total disability (or death), wherein it is found that = such=20 disability (or death) is not due solely to the second injury, and = wherein=20 the employee had a pre-existing permanent partial disability, the = employer=20 (or carrier) shall first pay compensation under section 8(b) or = (e) of the=20 Act, 33 U.S.C. 908(b) or (e), if any is payable thereunder, and = shall then=20 pay 104 weeks compensation for such total disability or death, and = none=20 otherwise. If the second injury results in permanent partial = disability,=20 and if such disability is compensable under section 8(c)(1)=96(20) = of the=20 Act, 33 U.S.C. 908(c)(1)=96(20), but the disability so compensable = did not=20 result solely from such second injury, and the disability so = compensable=20 is materially and substantially greater than that which would have = resulted from the second injury alone, then the employer (or = carrier)=20 shall only be liable for the amount of compensation provided for = in=20 section 8(c)(1)=96(20) that is attributable to such second injury, = or for=20 104 weeks, whichever is greater. However, if the injury is a loss = of=20 hearing covered by section 8(c)(13), 33 U.S.C. 908(c)(13), the = liability=20 shall be the lesser of these periods. In all other cases wherein = the=20 employee is permanently and partially disabled following a second = injury,=20 and wherein such disability is not attributable solely to that = second=20 injury, and wherein such disability is materially and = substantially=20 greater than that which would have resulted from the second injury = alone,=20 and wherein such disability following the second injury is not = compensable=20 under section 8(c)(1)=96(20) of the Act, then the employer (or = carrier)=20 shall be liable for such compensation as may be appropriate under = section=20 8(b) or (e) of the Act, 33 U.S.C. 908(b) or (e), if any, to be = followed by=20 a payment of compensation for 104 weeks, and none other. The term=20 =93compensation=94 herein means money benefits only, and does not = include=20 medical benefits. The procedure for determining the extent of the=20 employer's (or carrier's) liability under this paragraph shall be = as=20 provided for in the adjudication of claims in subpart C of this = part 702.=20 Thereafter, upon cessation of payments which the employer is = required to=20 make under this paragraph, if any additional compensation is = payable in=20 the case, the district director shall forward such case to the = Director=20 for consideration of an award to the person or persons entitled = thereto=20 out of the special fund. Any such award from the special fund = shall be by=20 order of the Director or Acting Director.

(c) Under sections 8 ( g ) and 39 ( c = )(=20 2 ) of the Act. These sections, 33 U.S.C. 908(g) and = 939(c)(2), respectively, provide for vocational rehabilitation of = disabled=20 employees, and authorize, under appropriate circumstances, a = maintenance=20 allowance for the employee (not to exceed $25 a week) in = additional to=20 other compensation benefits otherwise payable for his = injury-related=20 disability. Awards under these sections are made from the special = fund=20 upon order of the Director or his designee. The district directors = may be=20 required to make investigations with respect to any case and = forward to=20 the Director their recommendations as to the propriety and need = for such=20 maintenance.

(d) Under section 39 ( c )( 2 ) of the = Act.=20 In addition to the maintenance allowance for the employee = discussed in=20 paragraph (c) of this section, the Director is further authorized = to use=20 the fund in such amounts as may be necessary to procure the = vocational=20 training services.

(e) Under section 7 ( e ) of the Act. This = provision, 33 U.S.C. 907(e), authorizes payment by the Director = from the=20 special fund for special medical examinations, i.e. , those = obtained from impartial specialists to resolve disputes, when such = special=20 examinations are deemed necessary under that statutory provision. = The=20 Director has the discretionary power, however, to charge the cost = of such=20 examination to the insurance carrier or self-insured employer.

(f) Under section 18 ( b ) of the Act. = This=20 section, 33 U.S.C. 918(b), provides a source for payment of = compensation=20 benefits in cases where the employer is insolvent, or other = circumstances=20 preclude the payment of benefits due in any case. In such = situations, the=20 district director shall forward the case to the Director for = consideration=20 of an award from the special fund, together with evidence with = respect to=20 the employer's insolvency or other reasons for nonpayment of = benefits due.=20 Benefits, as herein used, means medical care or supplies within = the=20 meaning of section 7 of the Act, 33 U.S.C. 907, and subpart D of = this part=20 702, as well as monetary benefits. Upon receipt of the case, the = Director=20 shall promptly determine whether an award from the special fund is = appropriate and advisable in the case, having due regard for all = other=20 current commitments from the special fund. If such an award is = made, the=20 employer shall be liable for the repayment into the fund of the = amounts=20 paid therefrom, as provided in 33 U.S.C. 918(b).

(The = information=20 collection requirements contained in paragraph (a) were approved = by the=20 Office of Management and Budget under control number 1215=960065. = The=20 information collection requirements contained in paragraph (b) = were=20 approved by the Office of Management and Budget under control = number=20 1215=960073)

(Pub. L. No. 96=96511)

[38 FR 26861, Sept. 26, 1973, as amended at 49 FR 18294, Apr. = 30, 1984;=20 51 FR 4282, Feb. 3, 1986]

=A7 702.146   Source of the special = fund.
=20 top

(a) All amounts collected as fines and penalties under the = several=20 provisions of the Act shall be paid into the special fund (33 = U.S.C.=20 44(c)(3)).

(b) Whenever an employee dies under circumstances creating a = liability=20 on an employer to pay death benefits to the employee's = beneficiaries, and=20 whenever there are no such beneficiaries entitled to such = payments, the=20 employer shall pay $5,000 into the special fund (Act, section = 44(c)(1)).=20 In such cases, the compensation order entered in the case shall=20 specifically find that there is such liability and that there are = no=20 beneficiaries entitled to death benefits, and shall order payment = by the=20 employer into the fund. Compensation orders shall be made and = filed in=20 accordance with the regulations in subpart C of this part 702, = except that=20 for this purpose the district director settling the case under = =A7702.315=20 shall formalize the memorandum of conference in a compensation = order, and=20 shall file such order as provided for in =A7702.349.

(c) The Director annually shall assess an amount against = insurance=20 carriers and self-insured employers authorized under the Act and = part 703=20 of this subchapter to replenish the fund. That total amount to be = charged=20 all carriers and self-insurers to be assessed shall be based upon = an=20 estimate of the probable expenses of the fund during the calendar = year.=20 The assessment against each carrier and self-insurer shall be = based upon=20 (1) the ratio of the amount each paid during the prior calendar = year for=20 compensation in relation to the amount all such carriers of = self-insurers=20 paid during that period for compensation, and (2) the ratio of the = amount=20 of payments made by the special fund for all cases being paid = under=20 section 8(f) of the Act, 33 U.S.C. 908(f), during the preceding = calendar=20 year which are attributable to the carrier or self-insurer in = relation to=20 the total of such payments during such year attributable to all = carriers=20 and self-insurers. The resulting sum of the percentages from = paragraphs=20 (c) (1) and (2) of this section will be divided by two, and the = resulting=20 percentage multiplied by the probable expenses of the fund. The = Director=20 may, in his or her discretion, condition continuance or renewal of = authorization under part 703 upon prompt payment of the = assessment.=20 However, no action suspending or revoking such authorization shall = be=20 taken without affording such carrier or self-insurer a hearing = before the=20 Director or his/her designee.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 395, Jan. 3, = 1985; 51=20 FR 4282, Feb. 3, 1986]

=A7 702.147   Enforcement of special fund=20 provisions.
=20 top

(a) As provided in section 44(d)(1) of the Act, 33 U.S.C. = 944(d)(1),=20 for the purpose of making rules, regulations, and determinations = under the=20 special fund provisions in section 44 and for providing = enforcement=20 thereof, the Director may investigate and gather appropriate data = from=20 each carrier and self-insured employer, and may enter and inspect = such=20 places and records (and make such transcriptions of records), = question=20 such employees, and investigate such facts, conditions, practices, = or=20 other matters as he may deem necessary or appropriate. The = Director may=20 require the employer to have audits performed of claims activity = relating=20 to this Act. The Director may also require detailed reports of = payments=20 made under the Act, and of estimated future liabilities under the = Act,=20 from any or all carriers of self-insurers. The Director may = require that=20 such reports be certified and verified in whatever manner is = considered=20 appropriate.

(b) Pursuant to section 44(d)(3) of the Act, 33 U.S.C. = 944(d)(3), for=20 the purpose of any hearing or investigation related to = determinations or=20 the enforcement of the provisions of section 44 with respect to = the=20 special fund, the provisions of 15 U.S.C. 49 and 50 as amended = (the=20 Federal Trade Commission Act provisions relating to attendance of=20 witnesses and the production of books, papers, and documents) are = made=20 applicable to the jurisdiction, powers, and duties of the = Director, OWCP,=20 as the Secretary's delegatee.

(c) Civil penalties and unpaid assessments shall be collected = by civil=20 suits brought by and in the name of the Secretary.

(Approved by = the=20 Office of Management and Budget under control number 1215=960160)

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 395, Jan. 3,=20 1985]

=A7 702.148   Insurance carriers' and = self-insured=20 employers' responsibilities.
=20 top

(a) Each carrier and self-insured employer shall make, keep, = and=20 preserve such records, and make such reports and provide such = additional=20 information as the Director prescribes or orders, which he = considers=20 necessary or appropriate to effectively carry out his=20 responsibilities.

(b) Consistent with their greater direct liability stemming = from the=20 amended assessment formula, employers and insurance carriers are = given the=20 authority to monitor their claims in the special fund as outlined = in=20 paragraph (c) of this section. For purposes of monitoring these = claims,=20 employers and insurance carriers remain parties in interest to the = claim=20 and are allowed access to all records relating to the claim. = Similarly,=20 employers and insurance carriers can initiate proceeding to modify = an=20 award of compensation after the special fund has assumed the = liability to=20 pay benefits. It is intended that employers and insurance carriers = have=20 neither a greater nor a lesser responsibility in this new role = that they=20 not have with regard to cases that remain their sole liability. = (See=20 =A7702.373(d).)

(c) An employer or insurance carrier may conduct any reasonable = investigation regarding cases placed into the special fund by the = employer=20 or insurance carrier. Such investigation may include, but shall = not be=20 limited to, a semi-annual request for earnings information = pursuant to=20 section 8(j) of the Act, 33 U.S.C. 908(j) (See =A7702.285) = periodic medical=20 examinations, vocational rehabilitation evaluations, and requests = for any=20 additional information needed to effectively monitor such a=20 case.

(Approved by the Office of Management and Budget under = control=20 number 1215=960118)

(Pub. L. No. 96=96511, 94 Stat. 2812 (44 U.S.C. 3501 et seq. = ))

[38 FR 26861, Sept. 26, 1973, as amended at 47 FR 145, Jan. 5, = 1982; 50=20 FR 395, Jan. 3, 1985]

Liens on Compensation
=20 top
=A7 702.161   Liens against assets of = insurance=20 carriers and employers.
=20 top

Where payments have been made from the special fund pursuant to = section=20 18(b) of the Act, 33 U.S.C. 918(b) and =A7704.145(f) the Secretary = of Labor=20 shall, for the benefit of the fund, be subrogated to all the = rights of the=20 person receiving such payments. The Secretary may institute = proceedings=20 under either section 18 or 21(d) of the Act, 33 U.S.C. 918 or = 921(d), or=20 both, to recover the amount expended by the fund or so much as in = the=20 judgement of the Secretary is possible, or the Secretary may = settle or=20 compromise any such claim.

[50 FR 395, Jan. 3, 1985]

=A7 702.162   Liens on compensation = authorized under=20 special circumstances.
=20 top

(a) Pursuant to section 17 of the Act, 33 U.S.C. 917, when a = trust fund=20 which complies with section 302(c) of the Labor-Management = Relations Act=20 of 1947, 29 U.S.C. 186(c) [LMRA], established pursuant to a = collective=20 bargaining agreement in effect between an employer and an employee = entitled to compensation under this Act, has paid disability = benefits to=20 an employee which the employee is legally obligated to repay by = reason of=20 his entitlement to compensation under this Act, a lien shall be = authorized=20 on such compensation in favor of the trust fund for the amount of = such=20 payments.

(b)(1) An application for such a lien shall be filed on behalf = of the=20 trust fund with the district director for the compensation = district where=20 the claim for compensation has been filed, 20 CFR 702.101. Such=20 application shall include a certified statement by an authorized = official=20 of the trust fund that:

(i) The trust fund is entitled to a lien in its favor by reason = of its=20 payment of disability payments to a claimant-employee (including = his name=20 therein);

(ii) The trust fund was created pursuant to a collective = bargaining=20 agreement covering the claimant-employee;

(iii) The trust fund complies with section 302(c) of the=20 Labor-Management Relations Act of 1947, 29 U.S.C. 186(c);

(iv) The trust agreement contains a subrogation provision = entitling the=20 fund to reimbursement for disability benefits paid to the=20 claimant-employee who is entitled to compensation under the = Longshoremen's=20 Act;

(2) The statement shall also state the amount paid to the named = claimant-employee and whether such disability benefit payments are = continuing to be paid.

(3) If the claimant has signed a statement acknowledging = receipt of=20 disability benefits from the trust fund and/or a statement = recognizing the=20 trust fund's entitlement to a lien against compensation payments = which may=20 be received under the Longshoremen's and Harbor Worker's = Compensation Act=20 as a result of his present claim and for which the fund is = providing=20 disability payments, such statement(s) shall also be included with = or=20 attached to the application.

(c) Upon receipt of this application, the district director = shall,=20 within a reasonable time, notify the claimant, the employer and/or = its=20 compensation insurance carrier that the request for a lien has = been filed=20 and each shall be provided with a copy of the application. If the = claimant=20 disputes the right of the trust fund to the lien or the amount = stated, if=20 any, he shall, within 30 days after receipt of the application or = such=20 other longer period as the district director may set, notify the = district=20 director and he shall be given an opportunity to challenge the = right of=20 the trust fund to, or the amount of, the asserted lien; notice to = either=20 the employer or its compensation insurance carrier shall = constitute notice=20 to both of them.

(d) If the claim for compensation benefits is resolved without = a formal=20 hearing and if there is no dispute over the amount of the lien or = the=20 right of the trust fund to the lien, the district director may = order and=20 impose the lien and he shall notify all parties of the amount of = the lien=20 and manner in which it is to be paid.

(e) If the claimant's claim for compensation cannot be resolved = informally, the district director shall transfer the case to the = Office of=20 the Chief Administrative Law Judge for a formal hearing, pursuant = to=20 section 19(d) of the Act, 33 U.S.C. 919(d), and 20 CFR 702.317. = The=20 district director shall also submit therewith the application for = the lien=20 and all documents relating thereto.

(f) If the administrative law judge issues a compensation order = in=20 favor of the claimant, such order shall establish a lien in favor = of the=20 trust fund if it is determined that the trust fund has satisfied = all of=20 the requirements of the Act and regulations.

(g) If the claim for compensation is not in dispute, but there = is a=20 dispute as to the right of the trust fund to a lien, or the amount = of the=20 lien, the district director shall transfer the matter together = with all=20 documents relating thereto to the Office of the Chief = Administrative Law=20 Judge for a formal hearing pursuant to section 19(d) of the Act, = 33 U.S.C.=20 919(d), and 20 CFR 702.317.

(h) In the event that either the district director or the=20 administrative law judge is not satisfied that the trust fund = qualifies=20 for a lien under section 17, the district director or = administrative law=20 judge may require further evidence including but not limited to = the=20 production of the collective bargaining agreement, trust agreement = or=20 portions thereof.

(i) Before any such lien is approved, if the trust fund has = provided=20 continued disability payments after the application for a lien has = been=20 filed, the trust fund shall submit a further certified statement = showing=20 the total amount paid to the claimant as disability payments. The = claimant=20 shall likewise be given an opportunity to contest the amount = alleged in=20 this subsequent statement.

(j) In approving a lien on compensation, the district director = or=20 administrative law judge shall not order an initial payment to the = trust=20 fund in excess of the amount of the past due compensation. The = remaining=20 amount to which the trust fund is entitled shall thereafter be = deducted=20 from the affected employee's subsequent compensation payments and = paid to=20 the trust fund, but any such payment to the trust fund shall not = exceed 10=20 percent of the claimant-employee's bi-weekly compensation=20 payments.

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[42 FR 45301, Sept. 9, 1977, as amended at 50 FR 395, Jan. 3, = 1985; 51=20 FR 4282, Feb. 3, 1986]

Certification of Exemption
=20 top
=A7 702.171   Certification of exemption,=20 general.
=20 top

An employer may apply to the Director or his/her designee to = certify a=20 particular facility as one engaged in the building, repairing or=20 dismantling of exclusively small vessels, as defined. Once = certified,=20 injuries sustained at that facility would not be covered under the = Act=20 except for injuries which occur over the navigable waters of the = United=20 States including any adjoining pier, wharf, dock, facility over = land for=20 launching vessels or for hauling, lifting or drydocking vessels. A = facility otherwise covered under the Act remains covered until=20 certification of exemption is issued; a certification will be = granted only=20 upon submission of a complete application (described in = =A7702.174), and=20 only for as long as a facility meets the requirements detailed in = section=20 3(d) of the Act, 33 U.S.C. 903(d). This exemption from coverage is = not=20 intended to be used by employers whose facilities from time to = time may=20 temporarily meet the criteria for qualification but only for = facilities=20 which work on exclusively small vessels, as defined.

[50 FR 396, Jan. 3, 1985]

=A7 702.172   Certification; = definitions.
=20 top

For purposes of =A7=A7702.171 through 702.175 dealing with = certification of=20 small vessel facilities, the following definitions are = applicable.

(a)(1) =93Small vessel=94 means only those vessels described in = section=20 3(d)(3) of the Act, 33 U.S.C. 903(d)(3), that is:

(i) A commercial barge which is under 900 lightship = displacement tons=20 (long); or

(ii) A commercial tugboat, towboat, crewboat, supply boat, = fishing=20 vessel or other work vessel which is under 1,600 tons gross.

(2) For these purposes: (i) One gross ton equals 100 cubic = feet, as=20 measured by the current formula contained in the Act of May 6, = 1894 as=20 amended through 1974 (46 U.S.C. 77); (ii) one long ton equals = 2,240 lbs;=20 and (iii) =93Commercial=94 as it applies to =93vessel=94 means any = vessel engaged=20 in commerce but does not include military vessels or Coast Guard=20 vessels.

(b) =93Federal Maritime Subsidy=94 means the construction = differential=20 subsidy (CDS) or operating differential subsidy under the Merchant = Marine=20 Act of 1936 (46 U.S.C. 1101 et seq. ).

(c) facility means an operation of an employer at a = particular=20 contiguous geographic location.

[51 FR 4283, Feb. 3, 1986]

=A7 702.173   Exemptions; requirements,=20 limitations.
=20 top

(a) Injuries at a facility otherwise covered by the Act are = exempted=20 only upon certification that the facility is: (1) Engaged in the = building,=20 repairing or dismantling of exclusively small commercial vessels; = and (2)=20 does not receive a Federal maritime subsidy.

(b) The exemption does not apply to: (1) Injuries at any = facility which=20 occur over the navigable waters of the United States or upon any = adjoining=20 pier, wharf, dock, facility over land for launching vessels or for = hauling, lifting or drydocking vessels; or (2) where the employee = at such=20 facility is not subject to a State workers' compensation law.

[50 FR 396, Jan. 3, 1985]

=A7 702.174   Exemptions; necessary=20 information.
=20 top

(a) Application. Before any facility is exempt from = coverage=20 under the Act, the facility must apply for and receive a = certificate of=20 exemption from the Director or his/her designee. The application = must be=20 made by the owner of the facility; where the owner is a = partnership it=20 shall be made by a partner and where a corporation by an officer = of the=20 corporation or the manager in charge of the facility for which an=20 exemption is sought. The information submitted shall include the=20 following:

(1) Name, location, physical description and a site plan or = aerial=20 photograph of the facility for which an exemption is sought.

(2) Description of the nature of the business.

(3) An affidavit (signed by a partner if the facility is owned = by a=20 partnership or an officer if owned by a corporation) vertifying = and/or=20 acknowledging that:

(i) the facility is, as of the date of the application, engaged = in the=20 business of building, repairing or dismantling exclusively small=20 commercial vessels and that it does not then nor foreseeably will = it=20 engage in the building, repairing or dismantling of other than = small=20 vessels.

(ii) The facility does not receive any Federal maritime = subsidy.

(iii) The signator has the duty to immediately inform the = district=20 director of any change in these or other conditions likely to = result in a=20 termination of an exemption.

(iv) the employer has secured appropriate compensation = liability under=20 a State workers' compensation law.

(v) Any false, relevant statements relating to the application = or the=20 failure to notify the district director of any changes in = circumstances=20 likely to result in termination of the exemption will be grounds = for=20 revocation of the exemption certificate and will subject the = employer to=20 all provisions of the Act, including all duties, responsibilities = and=20 penalties, retroactive to the date of application or date of = change in=20 circumstances, as appropriate.

(b) Action by the Director. The Director or his/her = designee=20 shall review the application within thirty (30) days of its = receipt.

(1) Where the application is complete and shows that all = requirements=20 under =A7702.173 are met, the Director shall promptly notify the = employer by=20 certified mail, return receipt requested, that certification has = been=20 approved and will be effective on the date specified. The employer = is=20 required to post notice of the exemption at a conspicuous = location.

(2) Where the application is incomplete or does not = substantiate that=20 all requirements of section 3(d) of the Act, 33 U.S.C. 903(d), = have been=20 met, or evidence shows the facility is not eligible for exemption, = the=20 Director shall issue a letter which details the reasons for the = deficiency=20 or the rejection. The employer/applicant may reapply for = certification,=20 correcting deficiencies and/or responding to the reasons for the=20 Director's denial. The Director or his/her designee shall issue a = new=20 decision within a reasonable time of reapplication following = denial. Such=20 action will be the final administrative review and is not = appealable to=20 the Administrative Law Judge or the Benefits Review Board.

(c) The Director or another designated individual at any time = has the=20 right to enter on and inspect any facility seeking exemption for = purposes=20 of verifying information provided on the application form.

(d) Action by the employer. Immediately upon receipt of = the=20 certificate of exemption from coverage under the Act the employer = shall=20 post:

(1) A general notice in a conspicuous place that the Act does = not cover=20 injuries sustained at the facility in question, the basis of the=20 exemption, the effective date of the exemption and grounds for = termination=20 of the exemption.

(2) A notice, where applicable, at the entrances to all areas = to which=20 the exemption does not apply.

(Approved by the Office of = Management and=20 Budget under control number 1215=960160)

[50 FR 396, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, = 1986]

=A7 702.175   Effect of work on excluded = vessels;=20 reinstatement of certification.
=20 top

(a) When a vessel other than a small commercial vessel, as = defined in=20 =A7702.172, enters a facility which has been certified as exempt = from=20 coverage, the exemption shall automatically terminate as of the = date such=20 a vessel enters the facility. The exemption shall also terminate = on the=20 date a contract for a Federal maritime subsidy is entered into, = and, in=20 the situation where the facility undertakes to build a vessel = other than a=20 small vessel, when the construction first takes on the = characteristics of=20 a vessel, i.e. , when the keel is laid. All duties, = obligations and=20 requirements imposed by the Act, including the duty to secure = compensation=20 liability as required by sections 4 and 32 of the Act, 33 U.S.C. = 904 and=20 932, and to keep records and forward reports, are effective = immediately.=20 The employer shall notify the Director or his/her designee = immediately=20 where this occurs.

(b) Where an exemption certification is terminated because of=20 circumstances described in (a), the employer may apply for = reinstatement=20 of the exemption once the event resulting in termination of the = exemption=20 ends. The reapplication shall consist of a reaffirmation of the = nature of=20 the business, an explanation of the circumstances leading to the=20 termination of exemption, and an affidavit by the appropriate = person=20 affirming that the circumstances prompting the termination no = longer=20 exists nor will they reoccur in the forseeable future and that the = facility is engaged in building, repairing or dismantling = exclusively=20 small vessels. The Director or the Director's designee shall = respond to=20 the complete reapplication within ten working days of receipt.

[50 FR 397, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, = 1986]

Subpart B=97Claims Procedures
=20 top
Employer's Reports
=20 top
=A7 702.201   Reports from employers of = employee's=20 injury or death.
=20 top

(a) Within 10 days from the date of an employee's injury or = death, or=20 10 days from the date an employer has knowledge of an employee's = injury or=20 death, including any disease or death proximately caused by the=20 employment, the employer shall furnish a report thereof to the = district=20 director for the compensation district in which the injury or = death=20 occurred, and shall thereafter furnish such additional or = supplemental=20 reports as the district director may request.

(b) No report shall be filed unless the injury causes the = employee to=20 lose one or more shifts from work. However, the employer shall = keep a=20 record containing the information specified in =A7702.202. = Compliance with=20 the current OSHA injury record keeping requirements at 29 CFR part = 1904=20 will satisfy the record keeping requirements of this section for = no lost=20 time injuries.

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 397, Jan. 3, = 1985; 51=20 FR 4283, Feb. 3, 1986]

=A7 702.202   Employer's report; form and=20 contents.
=20 top

The employer's report of an employee's injury or death shall be = in=20 writing and on a form prescribed by the Director for this purpose, = and=20 shall contain:

(a) The name, address and business of the employer;

(b) The name, address, occupation and Social Security Number = (SSN) of=20 the employee;

(c) The cause, nature, and other relevant circumstances of the = injury=20 or death;

(d) The year, month, day, and hour when, and the particular = locality=20 where, the injury or death occurred;

(e) Such other information as the Director may = require.

(Approved by=20 the Office of Management and Budget under control numbers = 1215=960031 and=20 1215=960063)

[58 FR 68032, Dec. 23, 1993]

=A7 702.203   Employer's report; how=20 given.
=20 top

The employer's report, an original and one copy, may be = furnished by=20 delivering it to the appropriate office of the district director, = or by=20 mailing it to said office.

=A7 702.204   Employer's report; penalty = for failure=20 to furnish and or falsifying.
=20 top

Any employer, insurance carrier, or self-insured employer who = knowingly=20 and willfully fails or refuses to send any report required by = =A7702.201, or=20 who knowingly or willfully makes a false statement or = misrepresentation in=20 any report, shall be subject to a civil penalty not to exceed = $10,000.00=20 for each such failure, refusal, false statement, or = misrepresentation.=20 Provided, however, that for any violations occurring on or = after=20 November 17, 1997 the maximum civil penalty may not exceed = $11,000.00. The=20 district director has the authority and responsibility for = assessing a=20 civil penalty under this section.

[62 FR 53956, Oct. 17, 1997]

=A7 702.205   Employer's report; effect of = failure=20 to report upon time limitations.
=20 top

Where the employer, or agent in charge of the business, or = carrier has=20 been given notice or has knowledge of an employee's injury or = death, and=20 fails, neglects, or refuses to file a report thereof as required = by=20 =A7702.201, the time limitations provisions with respect to the = filing of=20 claims for compensation for disability or death (33 U.S.C. 913(a), = and see=20 =A7702.221) shall not begin to run until such report shall have = been=20 furnished as required herein.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 397, Jan. 3,=20 1985]

Notice
=20 top
=A7 702.211   Notice of employee's injury = or death;=20 designation of responsible official.
=20 top

(a) In order to claim compensation under the Act, an employee = or=20 claimant must first give notice of the fact of an injury or death = to the=20 employer and also may give notice to the district director for the = compensation district in which the injury or death occurred. = Notice to the=20 employer must be given to that individual whom the employer has = designated=20 to receive such notices. If no individual has been so designated = notice=20 may be given to: (1) The first line supervisor (including foreman, = hatchboss or timekeeper), local plant manager or personnel office=20 official; (2) to any partner if the employer is a partnership; or = (3) if=20 the employer is a corporation, to any authorized agent, to an = officer or=20 to the person in charge of the business at the place where the = injury=20 occurred. In the case of a retired employee, the employee/claimant = may=20 submit the notice to any of the above persons, whether or not the = employer=20 has designated an official to receive such notice.

(b) In order to facilitate the filing of notices, each employer = shall=20 designate at least one individual responsible for receiving = notices of=20 injury or death; this requirement applies to all employers. The=20 designation shall be by position and the employer shall provide = the name=20 and/or position, exact location and telephone number of the = individual to=20 all employees by the appropriate method described below.

(1) Type of individual. Designees must be a first line=20 supervisor (including a foreman, hatchboss or timekeeper), local = plant=20 manager, personnel office official, company nurse or other = individual=20 traditionally entrusted with this duty, who is located full-time = on the=20 premises of the covered facility. The employer must designate at = least one=20 individual at each place of employment or one individual for each = work=20 crew where there is no fixed place of employment (in that case, = the=20 designation should always be the same position for all work = crews).

(2) How designated. The name and/or title, the location = and=20 telephone number of the individual who is selected by the employer = to=20 receive all notices shall be given to the district director for = the=20 compensation district in which the facility is located; posting on = the=20 worksite in a conspicuous place shall fulfill this requirement. A=20 redesignation shall be effected by a change in posting.

(3) Publication. Every employer shall post the name = and/or=20 position, the exact location and telephone number of the = designated=20 official. The posting shall be part of the general posting = requirement,=20 done on a form prescribed by the Director, and placed in a = conspicuous=20 location. Posting must be done at each worksite.

(4) Effect of failure to designate. Where an employer = fails to=20 properly designate and to properly publish the name and/or = position of the=20 individual authorized to receive notices of injury or death, such = failure=20 shall constitute satisfactory reasons for excusing the = employee/claimant's=20 failure to give notice as authorized by section 12(d)(3)(ii) of = the Act,=20 33 U.S.C. 912(d)(3)(ii).

(Approved by the Office of Management = and=20 Budget under control number 1215=960160)

[50 FR 397, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, = 1986]

=A7 702.212   Notice; when given; when = given for=20 certain occupational diseases.
=20 top

(a) For other than occupational diseases described in (b), the = employee=20 must give notice within thirty (30) days of the date of the injury = or=20 death. For this purpose the date of injury or death is:

(1) The day on which a traumatic injury occurs;

(2) The date on which the employee or claimant is or by the = exercise of=20 reasonable diligence or by reason of medical advice, should have = been=20 aware of a relationship between the injury or death and the = employment;=20 or

(3) In the case of claims for loss of hearing, the date the = employee=20 receives an audiogram, with the accompanying report which = indicates the=20 employee has suffered a loss of hearing that is related to his or = her=20 employment. (See =A7702.441).

(b) In the case of an occupational disease which does not = immediately=20 result in disability or death, notice must be given within one = year after=20 the employee or claimant becomes aware, or in the exercise of = reasonable=20 diligence or by reason of medical advice, should have been aware, = of the=20 relationship between the employment, the disease and the death or=20 disability. For purposes of these occupational diseases, = therefore, the=20 notice period does not begin to run until the employee is = disabled, or in=20 the case of a retired employee, until a permanent impairment = exists.

(c) For purposes of workers whose coverage under this Act is = dependent=20 on denial of coverage under a State compensation program, as = described in=20 =A7701.401, the time limitations set forth above do not begin to = run until a=20 final decision denying State coverage is issued under the State=20 compensation act.

(Approved by the Office of Management and = Budget=20 under control number 1215=960160)

[50 FR 397, Jan. 3, 1985, as amended at 51 FR 4283, Feb. 3, = 1986]

=A7 702.213   Notice; by whom = given.
=20 top

Notice shall be given by the injured employee or someone on his = behalf,=20 or in the case of death, by the deceased employee's beneficiary or = someone=20 on his behalf.

[38 FR 26861, Sept. 26, 1973. Redesignated at 50 FR 397, Jan. = 3,=20 1985]

=A7 702.214   Notice; form and = content.
=20 top

Notice shall be in writing on a form prescribed by the Director = for=20 this purpose; such form shall be made available to the employee or = beneficiary by the employer. The notice shall be signed by the = person=20 authorized to give notice, and shall contain the name, address and = Social=20 Security Number (SSN) of the employee and, in death cases, also = the SSN of=20 the person seeking survivor benefits, and a statement of the time, = place,=20 nature and cause of the injury or death.

[58 FR 68032, Dec. 23, 1993]

=A7 702.215   Notice; how = given.
=20 top

Notice shall be effected by delivering it=97by hand or by mail = at the=20 address posted by the employer=97to the individual designated to = receive=20 such notices. Notice when given to the district director, may be = by hand=20 or by mail on a form supplied by the Secretary, or orally in = person or by=20 telephone.

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[50 FR 398, Jan. 3, 1985]

=A7 702.216   Effect of failure to give=20 notice.
=20 top

Failure to give timely notice to the employer's designated = official=20 shall not bar any claim for compensation if: (a) The employer, = carrier, or=20 designated official had actual knowledge of the injury or death; = or (b)=20 the district director or ALJ determines the employer or carrier = has not=20 been prejudiced: or (c) the district director excuses failure to = file=20 notice. For purposes of this subsection, actual knowledge shall be = deemed=20 to exist if the employee's immediate supervisor was aware of the = injury=20 and/or in the case of a hearing loss, where the employer has = furnished to=20 the employee an audiogram and report which indicates a loss of = hearing.=20 Failure to give notice shall be excused by the district director = if: a)=20 Notice, while not given to the designated official, was given to = an=20 official of the employer or carrier, and no prejudice resulted; or = b) for=20 some other satisfactory reason, notice could not be given. Failure = to=20 properly designate and post the individual so designated shall be=20 considered a satisfactory reason. In any event, such defense to a = claim=20 must be raised by the employer/carrier at the first hearing on the = claim.

[51 FR 4283, Feb. 3, 1986]

=A7 702.217   Penalty for false statement, = misrepresentation.
=20 top

(a) Any claimant or representative of a claimant who knowingly = and=20 willfully makes a false statement or representation for the = purpose of=20 obtaining a benefit or payment under this Act shall be guilty of a = felony,=20 and on conviction thereof shall be punished by a fine not to = exceed=20 $10,000, by imprisonment not to exceed five years, or by both.

(b) Any person including, but not limited to, an employer, its = duly=20 authorized agent or an employee of an insurance carrier, who = knowingly and=20 willingly makes a false statement or representation for the = purpose of=20 reducing, denying or terminating benefits to an injured employee, = or his=20 dependents pursuant to section 9, 33 U.S.C. 909, if the injury = results in=20 death, shall be punished by a fine not to exceed $10,000, by = imprisonment=20 not to exceed five years, or both.

[50 FR 398, Jan. 3, 1985]

Claims
=20 top
=A7 702.221   Claims for compensation; = time=20 limitations.
=20 top

(a) Claims for compensation for disability or death shall be in = writing=20 and filed with the district director for the compensation district = in=20 which the injury or death occurred. The Social Security Number = (SSN) of=20 the injured employee and, in cases of death, the SSN of the person = seeking=20 survivor benefits shall also be set forth on each claim. Claims = may be=20 filed anytime after the seventh day of disability or anytime = following the=20 death of the employee. Except as provided below, the right to = compensation=20 is barred unless a claim is filed within one year of the injury or = death,=20 or (where payment is made without an award) within one year of the = date on=20 which the last compensation payment was made.

(b) In the case of a hearing loss claim, the time for filing a = claim=20 does not begin to run until the employee receives an audiogram = with the=20 accompanying report which indicates the employee has sustained a = hearing=20 loss that is related to his or her employment. (See=20 =A7702.441).

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[50 FR 398, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, = 1986; 58 FR=20 68032, Dec. 23, 1993]

=A7 702.222   Claims; exceptions to time=20 limitations.
=20 top

(a) Where a person entitled to compensation under the Act is = mentally=20 incompetent or a minor, the time limitation provision of = =A7702.221 shall=20 not apply to a mentally incompetent person so long as such person = has no=20 guardian or other authorized representative, but =A7702.221 shall = be=20 applicable from the date of appointment of such guardian or other=20 representative. In the case of minor who has no guardian before he = or she=20 becomes of age, time begins to run from the date he or she becomes = of=20 age.

(b) Where a person brings a suit at law or in admiralty to = recover=20 damages in respect of an injury or death, or files a claim under a = State=20 workers' compensation act because such person is excluded from = this Act's=20 coverage by reason of section 2(3) or 3(d) of the Act (33 U.S.C. = 902(3) or=20 903(d)), and recovery is denied because the person was an employee = and=20 defendant was an employer within the meaning of the Act, and such = employer=20 had secured compensation to such employee under the Act, the time=20 limitation in =A7702.221 shall not begin to run until the date of=20 termination of such suit or proceeding.

(c) Notwithstanding the provisions in paragraph (a) of this = section,=20 where the claim is one based on disability or death due to an = occupational=20 disease which does not immediately result in death or disability, = it must=20 be filed within two years after the employee or claimant becomes = aware, or=20 in the exercise of reasonable diligence or by reason of medical = advice,=20 should have been aware of the relationship between the employment, = the=20 disease and the death or disability, or within one year of the = date of=20 last payment of compensation, whichever is later. For purposes of=20 occupational disease, therefore, the time limitation for filing a = claim=20 does not begin to run until the employee is disabled, or in the = case of a=20 retired employee, where a permanent impairment exists.

(d) The time limitations set forth above do not apply to claims = filed=20 under section 49 of the Act, 33 U.S.C. 949.

(Approved by the = Office of=20 Management and Budget under control number 1215=960160)

[50 FR 398, Jan. 3, 1985]

=A7 702.223   Claims; time limitations; = time to=20 object.
=20 top

Notwithstanding the requirements of =A7702.221, failure to file = a claim=20 within the period prescribed in such section shall not be a bar to = such=20 right unless objection to such failure is made at the first = hearing of=20 such claim in which all parties in interest are given reasonable = notice=20 and opportunity to be heard.

[38 FR 26861, Sept. 26, 1973. Redesignated and amended at 50 FR = 397,=20 Jan. 3, 1985]

=A7 702.224   Claims; notification of = employer of=20 filing by employee.
=20 top

Within 10 days after the filing of a claim for compensation for = injury=20 or death under the Act, the district director shall give written = notice=20 thereof to the employer or carrier, served personally or by = mail.

[38 FR 26861, Sept. 26, 1973. Redesignated at 50 FR 397, Jan. = 3, 1985,=20 as amended at 60 FR 51348, Oct. 2, 1995]

=A7 702.225   Withdrawal of a = claim.
=20 top

(a) Before adjudication of claim. A claimant (or an = individual=20 who is authorized to execute a claim on his behalf) may withdraw = his=20 previously filed claim: Provided, That:

(1) He files with the district director with whom the claim was = filed a=20 written request stating the reasons for withdrawal;

(2) The claimant is alive at the time his request for = withdrawal is=20 filed;

(3) The district director approves the request for withdrawal = as being=20 for a proper purpose and in the claimant's best interest; and

(4) The request for withdrawal is filed, on or before the date = the OWCP=20 makes a determination on the claim.

(b) After adjudication of claim. A claim for benefits = may be=20 withdrawn by a written request filed after the date the OWCP makes = a=20 determination on the claim: Provided, That:

(1) The conditions enumerated in paragraphs (a) (1) through (3) = of this=20 section are met; and

(2) There is repayment of the amount of benefits previously = paid=20 because of the claim that is being withdrawn or it can be = established to=20 the satisfaction of the Office that repayment of any such amount = is=20 assured.

(c) Effect of withdrawal of claim. Where a request for=20 withdrawal of a claim is filed and such request for withdrawal is=20 approved, such withdrawal shall be without prejudice to the filing = of=20 another claim, subject to the time limitation provisions of = section 13 of=20 the Act and of the regulations in this part.

[38 FR 26861, Sept. 26, 1973. Redesignated at 50 FR 397, Jan. = 3,=20 1985]

Noncontroverted Claims
=20 top
=A7 702.231   Noncontroverted claims; = payment of=20 compensation without an award.
=20 top

Unless the employer controverts its liability to pay = compensation under=20 this Act, the employer or insurance carrier shall pay = periodically,=20 promptly and directly to the person entitled thereto benefits = prescribed=20 by the Act. For this purpose, where the employer furnishes to an = employee=20 a copy of an audiogram with a report thereon, which indicates the = employee=20 has sustained a hearing loss causally related to factors of that=20 employment, the employer or insurance carrier shall pay = appropriate=20 compensation or at that time controvert the liability to pay = compensation=20 under this Act.

[50 FR 399, Jan. 3, 1985]

=A7 702.232   Payments without an award; = when; how=20 paid.
=20 top

The first installment of compensation shall become due by the=20 fourteenth (14th) day after the employer has been notified, = through the=20 designated official or by any other means described in =A7702.211 = et=20 seq., or has actual knowledge of the injury or death. All = compensation=20 due on that fourteenth (14th) day shall be paid then and = appropriate=20 compensation due thereafter must be paid in semi-monthly = installments,=20 unless the district director determines otherwise.

[50 FR 399, Jan. 3, 1985]

=A7 702.233   Penalty for failure to pay = without an=20 award.
=20 top

If any installment of compensation payable without an award is = not paid=20 within 14 days after it becomes due, there shall be added to such = unpaid=20 installment an amount equal to 10 per centum thereof which shall = be paid=20 at the same time as, but in addition to, such installment unless = the=20 employer files notice of controversion in accordance with = =A7702.261, or=20 unless such nonpayment is excused by the district director after a = showing=20 by the employer that owing to conditions over which he had no = control such=20 installment could not be paid within the period prescribed for the = payment.

=A7 702.234   Report by employer of = commencement and=20 suspension of payments.
=20 top

Immediately upon making the first payment of compensation, and = upon the=20 suspension of payments once begun, the employer shall notify the = district=20 director having jurisdiction over the place where the injury or = death=20 occurred of the commencement or suspension of payments, as the = case may=20 be.

=A7 702.235   Report by employer of final = payment of=20 compensation.
=20 top

(a) Within 16 days after the final payment of compensation has = been=20 made, the employer, the insurance carrier, or where the employer = is=20 self-insured, the employer shall notify the district director on a = form=20 prescribed by the Secretary, stating that such final payment has = been=20 made, the total amount of compensation paid, the name and address = of the=20 person(s) to whom payments were made, the date of the injury or = death and=20 the name of the injured or deceased employee, and the inclusive = dates=20 during which compensation was paid.

(b) A =93final payment of compensation=94 for the purpose of = applying the=20 penalty provision of =A7702.236 shall be deemed any one of the=20 following:

(1) The last payment of compensation made in accordance with a=20 compensation order awarding disability or death benefits, issued = by either=20 a district director or an administrative law judge;

(2) The payment of an agreed settlement approved under section = 8(i) (A)=20 or (B), of the Act, 33 U.S.C. 908(i);

(3) The last payment made pursuant to an agreement reached by = the=20 parties through informal proceedings;

(4) Any other payment of compensation which anticipates no = further=20 payments under the Act.

(Approved by the Office of Management = and=20 Budget under control number 1215=960024)

(Pub. L. No. 96=96511)

[42 FR 45302, Sept. 9, 1977, as amended at 49 FR 18294, Apr. = 30, 1984;=20 50 FR 399, Jan. 3, 1985]

=A7 702.236   Penalty for failure to = report=20 termination of payments.
=20 top

Any employer failing to notify the district director that the = final=20 payment of compensation has been made as required by =A7702.235 = shall be=20 assessed a civil penalty in the amount of $100.00. Provided, = however,=20 that for any violation occurring on or after November 17, 1997 = the=20 civil penalty will be $110.00. The district director has the = authority and=20 responsibility for assessing a civil penalty under this = section.

[62 FR 53956, Oct. 17, 1997]

Agreed Settlements
=20 top
=A7 702.241   Definitions and = supplementary=20 information.
=20 top

(a) As used hereinafter, the term adjudicator shall mean = district director or administrative law judge (ALJ).

(b) If a settlement application is submitted to an adjudicator = and the=20 case is pending at the Office of Administrative Law Judges, the = Benefits=20 Review Board, or any Federal circuit court of appeals, the parties = may=20 request that the case be remanded to the adjudicator for = consideration of=20 the application. The thirty day period as described in paragraph = (f) of=20 this section begins when the remanded case is received by the=20 adjudicator.

(c) If a settlement application is first submitted to an ALJ, = the=20 thirty day period mentioned in paragraph (f) of this section does = not=20 begin until five days before the date the formal hearing is set. = This rule=20 does not preclude the parties from submitting the application at = any other=20 time such as (1) after the case is referred for hearing, (2) at = the=20 hearing, or (3) after the hearing but before the ALJ issues a = decision and=20 order. Where a case is pending before the ALJ but not set for a = hearing,=20 the parties may request the case be remanded to the district = director for=20 consideration of the settlement.

(d) A settlement agreement between parties represented by = counsel,=20 which is deemed approved when not disapproved within thirty days, = as=20 described in paragraph (f) of this section, shall be considered to = have=20 been filed in the office of the district director on the thirtieth = day for=20 purposes of sections 14 and 21 of the Act, 33 U.S.C. 914 and = 921.

(e) A fee for representation which is included in an agreement = that is=20 approved in the manner described in paragraph (d) of this section, = shall=20 also be considered approved within the meaning of section 28(e) of = the=20 Act, 33 U.S.C. 928(e).

(f) The thirty day period for consideration of a settlement = agreement=20 shall be calculated from the day after receipt unless the parties = are=20 advised otherwise by the adjudicator. (See =A7702.243(b)). If the = last day=20 of this period is a holiday or occurs during a weekend, the next = business=20 day shall be considered the thirtieth day.

(g) An agreement among the parties to settle a claim is limited = to the=20 rights of the parties and to claims then in existence; settlement = of=20 disability compensation or medical benefits shall not be a = settlement of=20 survivor benefits nor shall the settlement affect, in any way, the = right=20 of survivors to file a claim for survivor's benefits.

(h) For purposes of this section and =A7702.243 the term = counsel=20 means any attorney admitted to the bar of any State, territory = or the=20 District of Columbia.

[50 FR 399, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, = 1986]

=A7 702.242   Information necessary for a = complete=20 settlement application.
=20 top

(a) The settlement application shall be a self-sufficient = document=20 which can be evaluated without further reference to the = administrative=20 file. The application shall be in the form of a stipulation signed = by all=20 parties and shall contain a brief summary of the facts of the case = to=20 include: a description of the incident, a description of the = nature of the=20 injury to include the degree of impairment and/or disability, a=20 description of the medical care rendered to date of settlement, = and a=20 summary of compensation paid and the compensation rate or, where = benefits=20 have not been paid, the claimant's average weekly wage.

(b) The settlement application shall contain the following:

(1) A full description of the terms of the settlement which = clearly=20 indicates, where appropriate, the amounts to be paid for = compensation,=20 medical benefits, survivor benefits and representative's fees = which shall=20 be itemized as required by =A7702.132.

(2) The reason for the settlement, and the issues which are in = dispute,=20 if any.

(3) The claimant's date of birth and, in death claims, the = names and=20 birth dates of all dependents.

(4) Information on whether or not the claimant is working or is = capable=20 of working. This should include, but not be limited to, a = description of=20 the claimant's educational background and work history, as well as = other=20 factors which could impact, either favorably or unfavorably, on = future=20 employability.

(5) A current medical report which fully describes any injury = related=20 impairment as well as any unrelated conditions. This report shall = indicate=20 whether maximum medical improvement has been reached and whether = further=20 disability or medical treatment is anticipated. If the claimant = has=20 already reached maximum medical improvement, a medical report = prepared at=20 the time the employee's condition stabilized will satisfy the = requirement=20 for a current medical report. A medical report need not be = submitted with=20 agreements to settle survivor benefits unless the circumstances = warrant=20 it.

(6) A statement explaining how the settlement amount is = considered=20 adequate.

(7) If the settlement application covers medical benefits an=20 itemization of the amount paid for medical expenses by year for = the three=20 years prior to the date of the application. An estimate of the = claimant's=20 need for future medical treatment as well as an estimate of the = cost of=20 such medical treatment shall also be submitted which indicates the = inflation factor and/or the discount rate used, if any. The = adjudicator=20 may waive these requirements for good cause.

(8) Information on any collateral source available for the = payment of=20 medical expenses.

(Approved by the Office of Management and = Budget=20 under control number 1215=960160)

[50 FR 399, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, = 1986]

=A7 702.243   Settlement application; how = submitted,=20 how approved, how disapproved, criteria.
=20 top

(a) When the parties to a claim for compensation, including = survivor=20 benefits and medical benefits, agree to a settlement they shall = submit a=20 complete application to the adjudicator. The application shall = contain all=20 the information outlined in =A7702.242 and shall be sent by = certified mail,=20 return receipt requested or submitted in person, or by any other = delivery=20 service with proof of delivery to the adjudicator. Failure to = submit a=20 complete application shall toll the thirty day period mentioned in = section=20 8(i) of the Act, 33 U.S.C. 908(i), until a complete application is = received.

(b) The adjudicator shall consider the settlement application = within=20 thirty days and either approve or disapprove the application. The=20 liability of an employer/insurance carrier is not discharged until = the=20 settlement is specifically approved by a compensation order issued = by the=20 adjudicator. However, if the parties are represented by counsel, = the=20 settlement shall be deemed approved unless specifically = disapproved within=20 thirty days after receipt of a complete application. This thirty = day=20 period does not begin until all the information described in = =A7702.242 has=20 been submitted. The adjudicator shall examine the settlement = application=20 within thirty days and shall immediately serve on all parties = notice of=20 any deficiency. This notice shall also indicate that the thirty = day period=20 will not commence until the deficiency is corrected.

(c) If the adjudicator disapproves a settlement application, = the=20 adjudicator shall serve on all parties a written statement or = order=20 containing the reasons for disapproval. This statement shall be = served by=20 certified mail within thirty days of receipt of a complete = application (as=20 described in =A7702.242.) if the parties are represented by = counsel. If the=20 disapproval was made by a district director, any party to the = settlement=20 may request a hearing before an ALJ as provided in sections 8 and = 19 of=20 the Act, 33 U.S.C. 908 and 919, or an amended application may be = submitted=20 to the district director. If, following the hearing, the ALJ = disapproves=20 the settlement, the parties may: (1) Submit a new application, (2) = file an=20 appeal with the Benefits Review Board as provided in section 21 of = the=20 Act, 33 U.S.C. 921, or (3) proceed with a hearing on the merits of = the=20 claim. If the application is initially disapproved by an ALJ, the = parties=20 may (1) submit a new application or (2) proceed with a hearing on = the=20 merits of the claim.

(d) The parties may submit a settlement application solely for=20 compensation, or solely for medical benefits or for compensation = and=20 medical benefits combined.

(e) If either portion of a combined compensation and medical = benefits=20 settlement application is disapproved the entire application is=20 disapproved unless the parties indicate on the face of the = application=20 that they agree to settle either portion independently.

(f) When presented with a settlement, the adjudicator shall = review the=20 application and determine whether, considering all of the = circumstances,=20 including, where appropriate, the probability of success if the = case were=20 formally litigated, the amount is adequate. The criteria for = determining=20 the adequacy of the settlement application shall include, but not = be=20 limited to:

(1) The claimant's age, education and work history;

(2) The degree of the claimant's disability or impairment;

(3) The availability of the type of work the claimant can = do;

(4) The cost and necessity of future medical treatment (where = the=20 settlement includes medical benefits).

(g) In cases being paid pursuant to a final compensation order, = where=20 no substantive issues are in dispute, a settlement amount which = does not=20 equal the present value of future compensation payments commuted, = computed=20 at the discount rate specified below, shall be considered = inadequate=20 unless the parties to the settlement show that the amount is = adequate. The=20 probability of the death of the beneficiary before the expiration = of the=20 period during which he or she is entitled to compensation shall be = determined according to the most current United States Life Table, = as=20 developed by the United States Department of Health and Human = Services,=20 which shall be updated from time to time. The discount rate shall = be equal=20 to the coupon issue yield equivalent (as determined by the = Secretary of=20 the Treasury) of the average accepted auction price for the last = auction=20 of 52 weeks U.S. Treasury Bills settled immediately prior to the = date of=20 the submission of the settlement application.

[50 FR 399, Jan. 3, 1985, as amended at 51 FR 4284, Feb. 3, = 1986; 60 FR=20 51348, Oct. 2, 1995]

Controverted Claims
=20 top
=A7 702.251   Employer's controversion of = the right=20 to compensation.
=20 top

Where the employer controverts the right to compensation after = notice=20 or knowledge of the injury or death, or after receipt of a written = claim,=20 he shall give notice thereof, stating the reasons for = controverting the=20 right to compensation, using the form prescribed by the Director. = Such=20 notice, or answer to the claim, shall be filed with the district = director=20 within 14 days from the date the employer receives notice or has = knowledge=20 of the injury or death. The original notice shall be sent to the = district=20 director having jurisdiction, and a copy thereof shall be given or = mailed=20 to the claimant.

(Approved by the Office of Management and = Budget under=20 control number 1215=960023)

(Pub. L. No. 96=96511)

[38 FR 26861, Sept. 26, 1973, as amended at 49 FR 18294, Apr. = 30,=20 1984]

=A7 702.252   Action by district director = upon=20 receipt of notice of controversion.
=20 top

Upon receiving the employer's notice of controversion, the = district=20 director shall forthwith commence proceedings for the adjudication = of the=20 claim in accordance with the procedures set forth in subpart C of = this=20 part.

Contested Claims
=20 top
=A7 702.261   Claimant's contest of = actions taken by=20 employer or carrier with respect to the claim.
=20 top

Where the claimant contests an action by the employer or = carrier=20 reducing, suspending, or terminating benefits, including medical = care, he=20 should immediately notify the office of the district director = having=20 jurisdiction, in person or in writing, and set forth the facts = pertinent=20 to his complaint.

=A7 702.262   Action by district director = upon=20 receipt of notice of contest.
=20 top

Upon receipt of the claimant's notice of contest, the district = director=20 shall forthwith commence proceedings for adjudication of the claim = in=20 accordance with the procedures set forth in subpart C of this = part.

Discrimination
=20 top
=A7 702.271   Discrimination; against = employees who=20 bring proceedings, prohibition and penalty.
=20 top

(a)(1) No employer or its duly authorized agent may discharge = or in any=20 manner discriminate against an employee as to his/her employment = because=20 that employee: (i) Has claimed or attempted to claim compensation = under=20 this Act; or (ii) has testified or is about to testify in a = proceeding=20 under this Act. To discharge or refuse to employ a person who has = been=20 adjudicated to have filed a fraudulent claim for compensation or = otherwise=20 made a false statement or misrepresentation under section 31(a)(1) = of the=20 Act, 33 U.S.C. 931(a)(1), is not a violation of this section.

(2) Any employer who violates this section shall be liable to a = penalty=20 of not less that $1,000.00 or more than $5,000.00 to be paid (by = the=20 employer alone, and not by a carrier) to the district director for = deposit=20 in the special fund described in section 44 of the Act, 33 U.S.C. = 944; and=20 shall restore the employee to his or her employment along with all = wages=20 lost due to the discrimination unless the employee has ceased to = be=20 qualified to perform the duties of employment. Provided = however,=20 that for any violation occurring on or after November 17, 1997 = the=20 employer shall be liable to a penalty of not less than $1,100.00 = or more=20 than $5,500.00.

(b) When a district director receives a complaint from an = employee=20 alleging discrimination as defined under section 49, he or she = shall=20 notify the employer, and within five working days, initiate = specific=20 inquiry to determine all the facts and circumstances pertaining = thereto.=20 This may be accomplished by interviewing the employee, employer=20 representatives and other parties who may have information about = the=20 matter. Interviews may be conducted by written correspondence, = telephone=20 or personal interview.

(c) If circumstances warrant, the district director may also = conduct an=20 informal conference on the issue as described in =A7=A7702.312 = through=20 702.314.

(d) Any employee discriminated against is entitled to be = restored to=20 his employment and to be compensated by the employer for any loss = of wages=20 arising out of such discrimination provided that the employee is = qualified=20 to perform the duties of the employment. If it is determined that = the=20 employee has been discriminated against, the district director = shall also=20 determine whether the employee is qualified to perform the duties = of the=20 employment. The district director may use medical evidence = submitted by=20 the parties or he may arrange to have the employee examined by a = physician=20 selected by the district director. The cost of the medical = examination=20 arranged for by the district director may be charged to the = special fund=20 established by section 44, 33 U.S.C. 944.

[42 FR 45302, Sept. 9, 1977, as amended at 50 FR 400, Jan. 3, = 1985; 62=20 FR 53956, Oct. 17, 1997]

=A7 702.272   Informal recommendation by = district=20 director.
=20 top

(a) If the district director determines that the employee has = been=20 discharged or suffered discrimination and is able to resume his or = her=20 duties, the district director will recommend that the employer = reinstate=20 the employee and/or make such restitution as is indicated by the=20 circumstances of the case, including compensation for any wage = loss=20 suffered as the result of the discharge or discrimination. The = district=20 director may also assess the employer an appropriate penalty, as=20 determined under authority vested in the district director by the = Act. If=20 the district director determines that no violation occurred he = shall=20 notify the partries of his findings and the reasons for = recommending that=20 the complaint be denied. If the employer and employee accept the = district=20 director's recommendation, it will be incorporated in an order and = mailed=20 to each party within 10 days.

(b) If the parties do not agree to the recommendation, the = district=20 director shall, within 10 days after receipt of the rejection, = prepare a=20 memorandum summarizing the disagreement, mail a copy to all = interested=20 parties, and shall within 14 days thereafter refer the case to the = Office=20 of the Chief Administrative Law Judge for hearing pursuant to=20 =A7702.317.

[42 FR 45302, Sept. 9, 1977]

=A7 702.273   Adjudication by Office of = the Chief=20 Administrative Law Judge.
=20 top

The Office of Administrative Law Judges is responsible for = final=20 determinations of all disputed issues connected with the = discrimination=20 complaint, including the amount of penalty to be assessed, and = shall=20 proceed with a formal hearing as described in =A7=A7702.331 to = 702.394.

[42 FR 45302, Sept. 9, 1977]

=A7 702.274   Employer's refusal to pay=20 penalty.
=20 top

In the event the employer refuses to pay the penalty assessed, = the=20 district director shall refer the complete administrative file to = the=20 Associate Director, Division of Longshore and Harbor Workers'=20 Compensation, for subsequent transmittal to the Associate = Solicitor for=20 Employee Benefits, with the request that appropriate legal action = be taken=20 to recover the penalty.

[42 FR 45302, Sept. 9, 1977]

Third Party
=20 top
=A7 702.281   Third party = action.
=20 top

(a) Every person claiming benefits under this Act (or the=20 representative) shall promptly notify the employer and the = district=20 director when:

(1) A claim is made that someone other than the employer or = person or=20 persons in its employ, is liable in damages to the claimant = because of the=20 injury or death and identify such party by name and address.

(2) Legal action is instituted by the claimant or the = representative=20 against some person or party other than the employer or a person = or=20 persons in his employ, on the ground that such other person is = liable in=20 damages to the claimant on account of the compensable injury = and/or death;=20 specify the amount of damages claimed and identify the person or = party by=20 name and address.

(3) Any settlement, compromise or any adjudication of such = claim has=20 been effected and report the terms, conditions and amounts of such = resolution of claim.

(b) Where the claim or legal action instituted against a third = party=20 results in a settlement agreement which is for an amount less than = the=20 compensation to which a person would be entitled under this Act, = the=20 person (or the person's representative) must obtain the prior, = written=20 approval of the settlement from the employer and the employer's = carrier=20 before the settlement is executed. Failure to do so relieves the = employer=20 and/or carrier of liability for compensation described in section = 33(f) of=20 Act, 33 U.S.C. 933(f) and for medical benefits otherwise due under = section=20 7 of the Act, 33 U.S.C. 907, regardless of whether the employer or = carrier=20 has made payments of acknowledged entitlement to benefits under = the Act.=20 The approval shall be on a form provided by the Director and = filed, within=20 thirty days after the settlement is entered into, with the = district=20 director who has jurisdiction in the district where the injury=20 occurred.

[42 FR 45303, Sept. 9, 1977, as amended at 50 FR 400, Jan. 3, = 1985; 51=20 FR 4284, Feb. 3, 1986]

Report of Earnings
=20 top
=A7 702.285   Report of = earnings.
=20 top

(a) An employer, carrier or the Director (for those cases being = paid=20 from the Special Fund) may require an employee to whom it is = paying=20 compensation to submit a report on earnings from employment or=20 self-employment. This report may not be required any more = frequently than=20 semi-annually. The report shall be made on a form prescribed by = the=20 Director and shall include all earnings from employment and=20 self-employment and the periods for which the earnings apply. The = employee=20 must return the complete report on earnings even where he or she = has no=20 earnings to report.

(b) For these purposes the term =93earnings=94 is defined as = all monies=20 received from any employment and includes but is not limited to = wages,=20 salaries, tips, sales commissions, fees for services provided, = piecework=20 and all revenue received from self-employment even if the business = or=20 enterprise operated at a loss of if the profits were=20 reinvested.

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[50 FR 400, Jan. 3, 1985]

=A7 702.286   Report of earnings; = forfeiture of=20 compensation.
=20 top

(a) Any employee who fails to submit the report on earnings = from=20 employment or self-employment under =A7702.285 or, who knowingly = and=20 willingly omits or understates any part of such earnings, shall = upon a=20 determination by the district director forfeit all right to = compensation=20 with respect to any period during which the employee was required = to file=20 such a report. The employee must return the completed report on = earnings=20 (even where he or she reports no earnings) within thirty (30) days = of the=20 date of receipt; this period may be extended for good cause, by = the=20 district director, in determining whether a violation of this = requirement=20 has occurred.

(b) Any employer or carrier who believes that a violation of = paragraph=20 (a) of this section has occurred may file a charge with the = district=20 director. The allegation shall be accompanied by evidence which = includes a=20 copy of the report, with proof of service requesting the = information from=20 the employee and clearly stating the dates for which the employee = was=20 required to report income. Where the employer/carrier is alleging = an=20 omission or understatement of earnings, it shall, in addition, = present=20 evidence of earnings by the employee during that period, including = copies=20 of checks, affidavits from employers who paid the employee = earnings,=20 receipts of income from self-employment or any other evidence = showing=20 earnings not reported or underreported for the period in question. = Where=20 the district director finds the evidence sufficient to support the = charge=20 he or she shall convene an informal conference as described in = subpart C=20 and shall issue a compensation order affiming or denying the = charge and=20 setting forth the amount of compensation for the specified period. = If=20 there is a conflict over any issue relating to this matter any = party may=20 request a formal hearing before an Administrative Law Judge as = described=20 in subpart C.

(c) Compensation forfeited under paragraph (b) of this section, = if=20 already paid, shall be recovered by a deduction from the = compensation=20 payable to the employee if any, on such schedule as determined by = the=20 district director. The district director's discretion in such = cases=20 extends only to rescheduling repayment by crediting future = compensation=20 and not to whether and in what amounts compensation is forfeited. = For this=20 purpose, the district director shall consider the employee's = essential=20 expenses for living, income from whatever source, and assets, = including=20 cash, savings and checking accounts, stocks, bonds, and other=20 securities.

[50 FR 400, Jan. 3, 1985]

Subpart C=97Adjudication Procedures
=20 top
General
=20 top
=A7 702.301   Scope of this = subpart.
=20 top

The regulations in this subpart govern the adjudication of = claims in=20 which the employer has filed a notice of controversion under = =A7702.251, or=20 the employee has filed notice of contest under =A7702.261. In the = vast=20 majority of cases, the problem giving rise to the controversy = results from=20 misunderstandings, clerical or mechanical errors, or mistakes of = fact or=20 law. Such problems seldom require resolution through formal = hearings, with=20 the attendant production of expert witnesses. Accordingly, by = =A7702.311=20 et seq., the district directors are empowered to amicably = and=20 promptly resolve such problems by informal procedures. Where there = is a=20 genuine dispute of fact or law which cannot be so disposed of = informally,=20 resort must be had to the formal hearing procedures as set forth = beginning=20 at =A7702.331. Supplementary compensation orders, modifications, = and=20 interlocutory matters are governed by regulations beginning with = =A7702.371.=20 Thereafter, appeals from compensation orders are discussed = beginning with=20 =A7702.391 (the regulations of the Benefits Review Board are set = forth in=20 full in part 802 of this title).

Action by District Directors
=20 top
=A7 702.311   Handling of claims matters = by district=20 directors; informal conferences.
=20 top

The district director is empowered to resolve disputes with = respect to=20 claims in a manner designed to protect the rights of the parties = and also=20 to resolve such disputes at the earliest practicable date. This = will=20 generally be accomplished by informal discussions by telephone or = by=20 conferences at the district director's office. Some cases will be = handled=20 by written correspondence. The regulations governing informal = conferences=20 at the district director's office with all parties present are set = forth=20 below. When handling claims by telephone, or at the office with = only one=20 of the parties, the district director and his staff shall make = certain=20 that a full written record be made of the matters discussed and = that such=20 record be placed in the administrative file. When claims are = handled by=20 correspondence, copies of all communications shall constitute the=20 administrative file.

=A7 702.312   Informal conferences; called = by and=20 held before whom.
=20 top

Informal conferences shall be called by the district director = or his=20 designee assigned or reassigned the case and held before that same = person,=20 unless such person is absent or unavailable. When so assigned, the = designee shall perform the duties set forth below assigned to the = district=20 director, except that a compenstion order following an agreement = shall be=20 issued only by a person so designated by the Director to perform = such=20 duty.

[42 FR 45303, Sept. 9, 1977]

=A7 702.313   Informal conferences; how = called; when=20 called.
=20 top

Informal conferences may be called upon not less than 10 days' = notice=20 to the parties, unless the parties agree to meet at an earlier = date. The=20 notice may be given by telephone, but shall be confirmed by use of = a=20 written notice on a form prescribed by the Director. The notice = shall=20 indicate the date, time and place of the conference, and shall = also=20 specify the matters to be discussed. For good cause shown = conferences may=20 be rescheduled. A copy of such notice shall be placed in the=20 administrative file.

=A7 702.314   Informal conferences; how = conducted;=20 where held.
=20 top

(a) No stenographic report shall be taken at informal = conferences and=20 no witnesses shall be called. The district director shall guide = the=20 discussion toward the achievement of the purpose of such = conference,=20 recommending courses of action where there are disputed issues, = and giving=20 the parties the benefit of his experience and specialized = knowledge in the=20 field of workmen's compensation.

(b) Conferences generally shall be held at the district = director's=20 office. However, such conferences may be held at any place which, = in the=20 opinion of the district director, will be of greater convenience = to the=20 parties or to their representatives.

=A7 702.315   Conclusion of conference; = agreement on=20 all matters with respect to the claim.
=20 top

(a) Following an informal conference at which agreement is = reached on=20 all issues, the district director shall (within 10 days after = conclusion=20 of the conference), embody the agreement in a memorandum or within = 30 days=20 issue a formal compensation order, to be filed and mailed in = accordance=20 with =A7702.349. If either party requests that a formal = compensation order=20 be issued the district director shall, within 30 days of such = request,=20 prepare, file, and serve such order in accordance with =A7702.349. = Where the=20 problem was of such nature that it was resolved by telephone = discussion or=20 by exchange of written correspondence, the parties shall be = notified by=20 the same means that agreement was reached and the district = director shall=20 prepare a memorandum or order setting forth the terms agreed upon. = In=20 either instance, when the employer or carrier has agreed to pay, = reinstate=20 or increase monetary compensation benefits, or to restore or = appropriately=20 change medical care benefits, such action shall be commenced = immediately=20 upon becoming aware of the agreement, and without awaiting receipt = of the=20 memorandum or the formal compensation order.

(b) Where there are several conferences or discussions, the = provisions=20 of paragraph (a) of this section do not apply until the last = conference.=20 The district director shall, however, prepare and place in his=20 administrative file a short, succinct memorandum of each preceding = conference or discussion.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 45303, Sept. = 9,=20 1977]

=A7 702.316   Conclusion of conference; no = agreement=20 on all matters with respect to the claim.
=20 top

When it becomes apparent during the course of the informal = conference=20 that agreement on all issues cannot be reached, the district = director=20 shall bring the conference to a close, shall evaluate all evidence = available to him or her, and after such evaluation shall prepare a = memorandum of conference setting forth all outstanding issues, = such facts=20 or allegations as appear material and his or her recommendations = and=20 rationale for resolution of such issues. Copies of this memorandum = shall=20 then be sent to each of the parties or their representatives, who = shall=20 then have 14 days within which to signify in writing to the = district=20 director whether they agree or disagree with his or her = recommendations.=20 If they agree, the district director shall proceed as in = =A7702.315(a). If=20 they disagree (Caution: See =A7702.134), then the district = director may=20 schedule such further conference or conferences as, in his or her = opinion,=20 may bring about agreement; if he or she is satisfied that any = further=20 conference would be unproductive, or if any party has requested a = hearing,=20 the district director shall prepare the case for transfer to the = Office of=20 the Chief Administrative Law Judge (See =A7702.317, = =A7=A7702.331=96702.351).

[42 FR 42551, Aug. 23, 1977, as amended at 60 FR 51348, Oct. 2, = 1995]

=A7 702.317   Preparation and transfer of = the case=20 for hearing.
=20 top

A case is prepared for transfer in the following manner:

(a) The district director shall furnish each of the parties or = their=20 representatives with a copy of a prehearing statement form.

(b) Each party shall, within 21 days after receipt of such = form,=20 complete it and return it to the district director and serve = copies on all=20 other parties. Extensions of time for good cause may be granted by = the=20 district director.

(c) Upon receipt of the completed forms, the district director, = after=20 checking them for completeness and after any further conferences = that, in=20 his or her opinion, are warranted, shall transmit them to the = Office of=20 the Chief Administrative Law Judge by letter of transmittal = together with=20 all available evidence which the parties intend to submit at the = hearing=20 (exclusive of X-rays, slides and other materials not suitable for = mailing=20 which may be offered into evidence at the time of hearing); the = materials=20 transmitted shall not include any recommendations expressed or = memoranda=20 prepared by the district director pursuant to =A7702.316.

(d) If the completed pre-hearing statement forms raise new or=20 additional issues not previously considered by the district = director or=20 indicate that material evidence will be submitted that could = reasonably=20 have been made available to the district director before he or she = prepared the last memorandum of conference, the district director = shall=20 transfer the case to the Office of the Chief Administrative Law = Judge only=20 after having considered such issues or evaluated such evidence or = both and=20 having issued an additional memorandum of conference in = conformance with=20 =A7702.316.

(e) If a party fails to complete or return his or her = pre-hearing=20 statement form within the time allowed, the district director may, = at his=20 or her discretion, transmit the case without that party's form. = However,=20 such transmittal shall include a statement from the district = director=20 setting forth the circumstanes causing the failure to include the = form,=20 and such party's failure to submit a pre-hearing statement form = may,=20 subject to rebuttal at the formal hearing, be considered by the=20 administrative law judge, to the extent intransigence is relevant, = in=20 subsequent rulings on motions which may be made in the course of = the=20 formal hearing.

(Approved by the Office of Management and = Budget under=20 control number 1215=960085)

(Pub. L. No. 96=96511)

[42 FR 42551, Aug. 23, 1977, as amended at 49 FR 18295, Apr. = 30,=20 1984]

=A7 702.318   The record; what = constitutes;=20 nontransferability of the administrative file.
=20 top

For the purpose of any further proceedings under the Act, the = formal=20 record of proceedings shall consist of the hearing record made = before the=20 administrative law judge (see =A7702.344). When transferring the = case for=20 hearing pursuant to =A7702.317, the district director shall not = transfer the=20 administrative file under any circumstances.

=A7 702.319   Obtaining documents from the = administrative file for reintroduction at formal = hearings.
=20 top

Whenever any party considers any document in the administrative = file=20 essential to any further proceedings under the Act, it is the=20 responsibility of such party to obtain such document from the = district=20 director and reintroduce it for the record before the = administrative law=20 judge. The type of document that may be obtained shall be limited = to=20 documents previously submitted to the district director, including = documents or forms with respect to notices, claims, = controversions,=20 contests, progress reports, medical services or supplies, etc. The = work=20 products of the district director or his staff shall not be = subject to=20 retrieval. The procedure for obtaining documents shall be for the=20 requesting party to inform the district director in writing of the = documents he wishes to obtain, specifying them with particularity. = Upon=20 receipt, the district director shall cause copies of the requested = documents to be made and then:

(a) Place the copies in the file together with the letter of = request,=20 and (b) promptly forward the originals to the requesting party. = The=20 handling of multiple requests for the same document shall be = within the=20 discretion of the district director and with the cooperation of = the=20 requesting parties.

Special Fund
=20 top
=A7 702.321   Procedures for determining=20 applicability of section 8(f) of the Act.
=20 top

(a) Application: filing, service, contents. (1) An = employer or=20 insurance carrier which seeks to invoke the provisions of section = 8(f) of=20 the Act must request limitation of its liability and file, in = duplicate,=20 with the district director a fully documented application. A fully = documented application shall contain the following information: = (i) A=20 specific description of the pre-existing condition relied upon as=20 constituting an existing permanent partial disability; (ii) the = reasons=20 for believing that the claimant's permanent disability after the = injury=20 would be less were it not for the pre-existing permanent partial=20 disability or that the death would not have ensued but for that=20 disability. These reasons must be supported by medical evidence as = specified in paragraph (a)(1)(iv) of this section; (iii) the basis = for the=20 assertion that the pre-existing condition relied upon was manifest = in the=20 employer; and (iv) documentary medical evidence relied upon in = support of=20 the request for section 8(f) relief. This medical evidence shall = include,=20 but not be limited to, a current medical report establishing the = extent of=20 all impairments and the date of maximum medical improvement. If = the=20 claimant has already reached maximum medical improvement, a report = prepared at that time will satisfy the requirement for a current = medical=20 report. If the current disability is total, the medical report = must=20 explain why the disability is not due solely to the second injury. = If the=20 current disability is partial, the medical report must explain why = the=20 disability is not due solely to the second injury and why the = resulting=20 disability is materially and substantially greater than that which = would=20 have resulted from the subsequent injury alone. If the injury is = loss of=20 hearing, the pre-existing hearing loss must be documented by an = audiogram=20 which complies with the requirements of =A7702.441. If the claim = is for=20 survivor's benefits, the medical report must establish that the = death was=20 not due solely to the second injury. Any other evidence considered = necessary for consideration of the request for section 8(f) relief = must be=20 submitted when requested by the district director or Director.

(2) If claim is being paid by the special fund and the claimant = dies,=20 an employer need not reapply for section 8(f) relief. However, = survivor=20 benefits will not be paid until it has been established that the = death was=20 due to the accepted injury and the eligible survivors have been=20 identified. The district director will issue a compensation order = after a=20 claim has been filed and entitlement of the survivors has been = verified.=20 Since the employer remains a party in interest to the claim, a=20 compensation order will not be issued without the agreement of the = employer.

(b) Application: Time for filing. (1) A request for = section 8(f)=20 relief should be made as soon as the permanency of the claimant's=20 condition becomes known or is an issue in dispute. This could be = when=20 benefits are first paid for permanent disability, or at an = informal=20 conference held to discuss the permanency of the claimant's = condition.=20 Where the claim is for death benefits, the request should be made = as soon=20 as possible after the date of death. Along with the request for = section=20 8(f) relief, the applicant must also submit all the supporting=20 documentation required by this section, described in paragraph = (a), of=20 this section. Where possible, this documentation should accompany = the=20 request, but may be submitted separately, in which case the = district=20 director shall, at the time of the request, fix a date for = submission of=20 the fully documented application. The date shall be fixed as = follows:

(i) Where notice is given to all parties that permanency shall = be an=20 issue at an informal conference, the fully documented application = must be=20 submitted at or before the conference. For these purposes, notice = shall=20 mean when the issues of permanency is noted on the form LS=96141, = Notice of=20 Informal Conference. All parties are required to list issue = reasonably=20 anticipated to be discussed at the conference when the initial = request for=20 a conference is made and to notify all parties of additional = issues which=20 arise during the period before the conference is actually = held.

(ii) Where the issue of permanency is first raised at the = informal=20 conference and could not have reasonably been anticipated by the = parties=20 prior to the conference, the district director shall adjourn the=20 conference and establish the date by which the fully documented=20 application must be submitted and so notify the employer/carrier. = The date=20 shall be set by the district director after reviewing the = circumstances of=20 the case.

(2) At the request of the employer or insurance carrier, and = for good=20 cause, the district director, at his/her discretion, may grant an=20 extension of the date for submission of the fully documented = application.=20 In fixing the date for submission of the application under = circumstances=20 other than described above or in considering any request for an = extension=20 of the date for submitting the application, the district director = shall=20 consider all the circumstances of the case, including but not = limited to:=20 Whether the claimant is being paid compensation and the hardship = to the=20 claimant of delaying referral of the case to the Office of = Administrative=20 Law Judges (OALJ); the complexity of the issues and the = availability of=20 medical and other evidence to the employer; the length of time the = employer was or should have been aware that permanency is an = issue; and,=20 the reasons listed in support of the request. If the = employer/carrier=20 requested a specific date, the reasons for selection of that date = will=20 also be considered. Neither the date selected for submission of = the fully=20 documented application nor any extension therefrom can go beyond = the date=20 the case is referred to the OALJ for formal hearing.

(3) Where the claimant's condition has not reached maximum = medical=20 improvement and no claim for permanency is raised by the date the = case is=20 referred to the OALJ, an application need not be submitted to the = district=20 director to preserve the employer's right to later seek relief = under=20 section 8(f) of the Act. In all other cases, failure to submit a = fully=20 documented application by the date established by the district = director=20 shall be an absolute defense to the liability of the special fund. = This=20 defense is an affirmative defense which must be raised and pleaded = by the=20 Director. The absolute defense will not be raised where permanency = was not=20 an issue before the district director. In all other cases, where=20 permanency has been raised, the failure of an employer to submit a = timely=20 and fully documented application for section 8(f) relief shall not = prevent=20 the district director, at his/her discretion, from considering the = claim=20 for compensation and transmitting the case for formal hearing. The = failure=20 of an employer to present a timely and fully documented = application for=20 section 8(f) relief may be excused only where the employer could = not have=20 reasonably anticipated the liability of the special fund prior to = the=20 consideration of the claim by the district director. Relief under = section=20 8(f) is not available to an employer who fails to comply with = section=20 32(a) of the Act, 33 U.S.C. 932(a).

(c) Application: Approval, disapproval. If all the = evidence=20 required by paragraph (a) was submitted with the application for = section=20 8(f) relief and the facts warrant relief under this section, the = district=20 director shall award such relief after concurrence by the = Associate=20 Director, DLHWC, or his or her designee. If the district director = or the=20 Associate Director or his or her designee finds that the facts do = not=20 warrant relief under section 8(f) the district director shall = advise the=20 employer of the grounds for the denial. The application for = section 8(f)=20 relief may then be considered by an administrative law judge. When = a case=20 is transmitted to the Office of Administrative Law Judges the = district=20 director shall also attach a copy of the application for section = 8(f)=20 relief submitted by the employer, and notwithstanding = =A7702.317(c), the=20 district director's denial of the application.

(Approved by the = Office=20 of Management and Budget under control number 1215=960160)

[51 FR 4285, Feb. 3, 1986]

Formal Hearings
=20 top
=A7 702.331   Formal hearings; procedure=20 initiating.
=20 top

Formal hearings are initiated by transmitting to the Office of = the=20 Chief Administrative Law Judge the pre-hearing statement forms, = the=20 available evidence which the parties intend to submit at the = formal=20 hearing, and the letter of transmittal from the district director = as=20 provided in =A7702.316 and =A7702.317.

[42 FR 42552, Aug. 23, 1977]

=A7 702.332   Formal hearings; how=20 conducted.
=20 top

Formal hearings shall be conducted by the administrative law = judge=20 assigned the case by the Office of the Chief Administrative Law = Judge in=20 accordance with the provisions of the Administrative Procedure = Act, 5=20 U.S.C. 554 et seq. All hearings shall be transcribed.

=A7 702.333   Formal hearings; = parties.
=20 top

(a) The necessary parties for a formal hearing are the claimant = and the=20 employer or insurance carrier, and the administrative law judge = assigned=20 the case.

(b) The Solicitor of Labor or his designee may appear and = participate=20 in any formal hearing held pursuant to these regulations on behalf = of the=20 Director as an interested party.

=A7 702.334   Formal hearings; = representatives of=20 parties.
=20 top

The claimant and the employer or carrier may be represented by = persons=20 of their choice.

=A7 702.335   Formal hearings; = notice.
=20 top

On a form prescribed for this purpose, the Office of the Chief=20 Administrative Law Judge shall notify the parties (See =A7702.333) = of the=20 place and time of the formal hearing not less than 30 days in = advance=20 thereof.

[42 FR 42552, Aug. 23, 1977]

=A7 702.336   Formal hearings; new=20 issues.
=20 top

(a) If, during the course of the formal hearing, the evidence = presented=20 warrants consideration of an issue or issues not previously = considered,=20 the hearing may be expanded to include the new issue. If in the = opinion of=20 the administrative law judge the new issue requires additional = time for=20 preparation, the parties shall be given a reasonable time within = which to=20 prepare for it. If the new issue arises from evidence that has not = been=20 considered by the district director, and such evidence is likely = to=20 resolve the case without the need for a formal hearing, the = administrative=20 law judge may remand the case to the district director for his or = her=20 evaluation and recommendation pursuant to, =A7702.316.

(b) At any time prior to the filing of the compensation order = in the=20 case, the administrative law judge may in his discretion, upon the = application of a party or upon his own motion, give notice that he = will=20 consider any new issue. The parties shall be given not less than = 10 days'=20 notice of the hearing on such new issue. The parties may stipulate = that=20 the issue may be heard at an earlier time and shall proceed to a = hearing=20 on the new issue in the same manner as on an issue initially=20 considered.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 42552, Aug. = 23,=20 1977]

=A7 702.337   Formal hearings; change of = time or=20 place for hearings; postponements.
=20 top

(a) Except for good cause shown, hearings shall be held at = convenient=20 locations not more than 75 miles from the claimant's = residence.

(b) Once a formal hearing has been scheduled, continuances = shall not be=20 granted except in cases of extreme hardship or where attendance of = a party=20 or his or her representative is mandated at a previously scheduled = judicial proceeding. Unless the ground for the request arises = thereafter,=20 requests for continuances must be received by the Chief = Administrative Law=20 Judge at least 10 days before the scheduled hearing date, must be = served=20 upon the other parties and must specify the extreme hardship or = previously=20 scheduled judicial proceeding claimed.

(c) The Chief Administrative Law Judge or the administrative = law judge=20 assigned to the case may change the time and place of the hearing, = or=20 temporarily adjourn a hearing, on his own motion or for good cause = shown=20 by a party. The parties shall be given not less than 10 days' = notice of=20 the new time and place of the hearing, unless they agree to such = change=20 without notice.

[42 FR 42552, Aug. 23, 1977]

=A7 702.338   Formal hearings; general=20 procedures.
=20 top

All hearings shall be attended by the parties or their = representatives=20 and such other persons as the administrative law judge deems = necessary and=20 proper. The administrative law judge shall inquire fully into the = matters=20 at issue and shall receive in evidence the testimony of witnesses = and any=20 documents which are relevant and material to such matters. If the=20 administrative law judge believes that there is relevant and = material=20 evidence available which has not been presented at the hearing, he = may=20 adjourn the hearing or, at any time, prior to the filing of the=20 compensation order, reopen the hearing for the receipt of such = evidence.=20 The order in which evidence and allegations shall be presented and = the=20 procedures at the hearings generally, except as these regulations=20 otherwise expressly provide, shall be in the discretion of the=20 administrative law judge and of such nature as to afford the = parties a=20 reasonable opportunity for a fair hearing.

=A7 702.339   Formal hearings; = evidence.
=20 top

In making an investigation or inquiry or conducting a hearing, = the=20 administrative law judge shall not be bound by common law or = statutory=20 rules of evidence or by technical or formal rules of procedure, = except as=20 provided by 5 U.S.C. 554 and these regulations; but may make such=20 investigation or inquiry or conduct such hearing in such a manner = as to=20 best ascertain the rights of the parties.

=A7 702.340   Formal hearings; = witnesses.
=20 top

(a) Witnesses at the hearing shall testify under oath or = affirmation.=20 The administrative law judge may examine the witnesses and shall = allow the=20 parties or their representatives to do so.

(b) No person shall be required to attend as a witness in any=20 proceeding before an administrative law judge at a place more than = 100=20 miles from his place of residence, unless his lawful mileage and = fees for=20 one day's attendance shall be paid or tendered to him in advance = of the=20 hearing date.

=A7 702.341   Formal hearings; = depositions;=20 interrogatories.
=20 top

The testimony of any witness, including any party represented = by=20 counsel, may be taken by deposition or interrogatory according to = the=20 Federal Rules of Civil Procedure as supplemented by local rules of = practice for the Federal district court for the judicial district = in which=20 the case is pending. However, such depositions or interrogatories = must be=20 completed within reasonable times to be fixed by the Chief = Administrative=20 Law Judge or the administrative law judge assigned to the = case.

[42 FR 42552, Aug. 23, 1977]

=A7 702.342   Formal hearings; witness=20 fees.
=20 top

Witnesses summoned in a formal hearing before an administrative = law=20 judge or whose depositions are taken shall receive the same fees = and=20 mileage as witnesses in courts of the United States (33 U.S.C. = 925).

=A7 702.343   Formal hearings; oral = argument and=20 written allegations.
=20 top

Any party upon request shall be allowed a reasonable time for=20 presentation of oral argument and shall be permitted to file a = pre-hearing=20 brief or other written statement of fact or law. A copy of any = such=20 pre-hearing brief or other written statement shall be filed with = the Chief=20 Administrative Law Judge or the administrative law judge assigned = to the=20 case before or during the proceeding at which evidence is = submitted to the=20 administrative law judge and shall be served upon each other = party.=20 Post-hearing briefs will not be permitted except at the request of = the=20 administrative law judge or upon averment on the record of a party = that=20 the case presents a specific novel or difficult legal or factual = issue (or=20 issues) that cannot be adequately addressed in oral summation. = When=20 permitted, any such brief shall be limited to the issue or issues=20 specified by the administrative law judge or by the party in his = or her=20 averment and shall be due from any party desiring to address such = issue or=20 issues within 15 days of the conclusion of the proceeding at which = evidence is submitted to the administrative law judge. Enlargement = of the=20 time for filing such briefs shall be granted only if the = administrative=20 law judge is persuaded that the brief will be helpful to him or = her and=20 that the enlargement granted will not delay decision of the = case.

[42 FR 42552, Aug. 23, 1977]

=A7 702.344   Formal hearings; record of=20 hearing.
=20 top

All formal hearings shall be open to the public and shall be=20 stenographically reported. All evidence upon which the = administrative law=20 judge relies for his final decision shall be contained in the = transcript=20 of testimony either directly or by appropriate reference. All = medical=20 reports, exhibits, and any other pertinent document or record, in = whole or=20 in material part, shall be incorporated into the record either by=20 reference or as an appendix.

=A7 702.345   Formal hearings; = consolidated issues;=20 consolidated cases.
=20 top

(a) When one or more additional issues are raised by the = administrative=20 law judge pursuant to =A7702.336, such issues may, in the = discretion of the=20 administrative law judge, be consolidated for hearing and decision = with=20 other issues pending before him.

(b) When two or more cases are transferred for formal hearings = and have=20 common questions of law or which arose out of a common accident, = the Chief=20 Administrative Law Judge may consolidate such cases for = hearing.

=A7 702.346   Formal hearings; waiver of = right to=20 appear.
=20 top

If all parties waive their right to appear before the = administrative=20 law judge or to present evidence or argument personally or by=20 representative, it shall not be necessary for the administrative = law judge=20 to give notice of and conduct an oral hearing. A waiver of the = right to=20 appear and present evidence and allegations as to facts and law = shall be=20 made in writing and filed with the Chief Administrative Law Judge = or the=20 administrative law judge. Where such a waiver has been filed by = all=20 parties, and they do not appear before the administrative law = judge=20 personally or by representative, the administrative law judge = shall make a=20 record of the relevant written evidence submitted by the parties, = together=20 with any pleadings they may submit with respect to the issues in = the case.=20 Such documents shall be considered as all of the evidence in the = case and=20 the decision shall be based on them.

=A7 702.347   Formal hearings;=20 termination.
=20 top

(a) Formal hearings are normally terminated upon the conclusion = of the=20 proceeding at which evidence is submitted to the administrative = law=20 judge.

(b) In exceptional cases the Chief Administrative Law Judge or = the=20 administrative law judge assigned to the case may, in his or her=20 discretion, extend the time for official termination of the = hearing.

[42 FR 42552, Aug. 23, 1977]

=A7 702.348   Formal hearings; preparation = of final=20 decision and order; content.
=20 top

Within 20 days after the official termination of the hearing as = defined=20 by =A7702.347, the administrative law judge shall have prepared a = final=20 decision and order, in the form of a compensation order, with = respect to=20 the claim, making an award to the claimant or rejecting the claim. = The=20 compensation order shall contain appropriate findings of facts and = conclusions of law with respect thereto, and shall be concluded = with one=20 or more paragraphs containing the order of the administrative law = judge,=20 his signature, and the date of issuance.

=A7 702.349   Formal hearings; filing and = mailing of=20 compensation orders; disposition of transcripts.
=20 top

The administrative law judge shall, within 20 days after the = official=20 termination of the hearing, deliver by mail, or otherwise, to the = office=20 of the district director having original jurisdiction, the = transcript of=20 the hearing, other documents or pleadings filed with him with = respect to=20 the claim, together with his signed compensation order. Upon = receipt=20 thereof, the district director, being the official custodian of = all=20 records with respect to such claims within his jurisdiction, shall = formally date and file the transcript, pleadings, and compensation = order=20 (original) in his office. Such filing shall be accomplished by the = close=20 of business on the next succeeding working day, and the district = director=20 shall, on the same day as the filing was accomplished, send by = certified=20 mail a copy of the compensation order to the parties and to=20 representatives of the parties, if any. Appended to each such copy = shall=20 be a paragraph entitled =93proof of service=94 containing the = certification of=20 the district director that the copies were mailed on the date = stated, to=20 each of the parties and their representatives, as shown in such=20 paragraph.

=A7 702.350   Finality of compensation=20 orders.
=20 top

Compensation orders shall become effective when filed in the = office of=20 the district director, and unless proceedings for suspension or = setting=20 aside of such orders are instituted within 30 days of such filing, = shall=20 become final at the expiration of the 30th day after such filing, = as=20 provided in section 21 of the Act 33 U.S.C. 921. If any = compensation=20 payable under the terms of such order is not paid within 10 days = after it=20 becomes due, section 14(f) of the Act requires that there be added = to such=20 unpaid compensation an amount equal to 20 percent thereof which = shall be=20 paid at the same time as, but in addition to, such compensation = unless=20 review of the compensation order is had as provided in such = section 21 and=20 an order staying payment has been issued by the Benefits Review = Board or=20 the reviewing court.

=A7 702.351   Withdrawal of controversion = of issues=20 set for formal hearing; effect.
=20 top

Whenever a party withdraws his controversion of the issues set = for a=20 formal hearing, the administrative law judge shall halt the = proceedings=20 upon receipt from said party of a signed statement to that effect = and=20 forthwith notify the district director who shall then proceed to = dispose=20 of the case as provided for in =A7702.315.

Interlocutory Matters, Supplementary Orders, and=20 Modifications
=20 top
=A7 702.371   Interlocutory = matters.
=20 top

Compensation orders shall not be made or filed with respect to=20 interlocutory matters of a procedural nature arising during the = pendency=20 of a compensation case.

=A7 702.372   Supplementary compensation=20 orders.
=20 top

(a) In any case in which the employer or insurance carrier is = in=20 default in the payment of compensation due under any award of=20 compensation, for a period of 30 days after the compensation is = due and=20 payable, the person to whom such compensation is payable may, = within 1=20 year after such default, apply in writing to the district director = for a=20 supplementary compensation order declaring the amount of the = default. Upon=20 receipt of such application, the district director shall institute = proceedings with respect to such application as if such = application were=20 an original claim for compensation, and the matter shall be = disposed of as=20 provided for in =A7702.315, or if agreement on the issue is not = reached,=20 then as in =A7702.316 et seq.

(b) If, after disposition of the application as provided for in = paragraph (a) of this section, a supplementary compensation order = is=20 entered declaring the amount of the default, which amount may be = the whole=20 of the award notwithstanding that only one or more installments is = in=20 default, a copy of such supplementary order shall be forthwith = sent by=20 certified mail to each of the parties and their representatives.=20 Thereafter, the applicant may obtain and file with the clerk of = the=20 Federal district court for the judicial district where the injury = occurred=20 or the district in which the employed has his principal place of = business=20 or maintains an office, a certified copy of said order and may = seek=20 enforcement thereof as provided for by section 18 of the Act, 33 = U.S.C.=20 918.

=A7 702.373   Modification of = awards.
=20 top

(a) Upon his/her own initiative, or upon application of any = party in=20 interest (including an employer or carrier which has been granted = relief=20 under section 8(f) of the Act, 33 U.S.C. 908(f)), the district = director=20 may review any compensation case (including a case under which = payments=20 are made pursuant to section 44(i) of the Act, 33 U.S.C. 944(i)) = in=20 accordance with the procedure in subpart C of this part, and after = such=20 review of the case under =A7702.315, or review at formal hearings = under the=20 regulations governing formal hearings in subpart C of this part, = file a=20 new compensation order terminating, continuing, reinstating, = increasing or=20 decreasing such compensation, or awarding compensation. Such new = order=20 shall not affect any compensation previously paid, except that an = award=20 increasing the compensation rate may be made retroactive from the = date of=20 injury, and if any part of the compensation due or to become due = is=20 unpaid, an award decreasing the compensation rate may be made = effective=20 from the date of the injury, and any payment made prior thereto in = excess=20 of such decreased rate shall be deducted from any unpaid = compensation, in=20 such manner and by such method as may be determined by the = district=20 director or the administrative law judge. Settlements cannot be=20 modified.

(b) Review of a compensation case under this section may be = made at any=20 time prior to 1 year after the date of the last payment of = compensation,=20 whether or not a compensation order has been issued, or at any = time prior=20 to 1 year after the rejection of a claim.

(c) Review of a compensation case may be had only for the = reason that=20 there is a change in conditions or that there was a mistake in the = determination of facts.

(d) If the investigation, described in =A7702.148(c), discloses = a change=20 in conditions and the employer or insurance carrier intends to = pursue=20 modification of the award of compensation the district director = and=20 claimant shall be notified through an informal conference. At the=20 conclusion of the informal conference the district director shall = issue a=20 recommendation either for or against the modification. This = recommendation=20 shall also be sent to the Associate Director, Division of = Longshoremen's=20 and Harbor Workers' Compensation (DLHWC) for a determination on = whether or=20 not to participate in the modification proceeding on behalf of the = special=20 fund. Lack of concurrence of the Associate Director, DLHWC or lack = of=20 participation by a representative of the special fund shall not be = a bar=20 to the modification proceeding.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 401, Jan. 3,=20 1985]

Appeals
=20 top
=A7 702.391   Appeals; where.
=20 top

Appeals may be taken to the Benefits Review Board, U.S. = Department of=20 Labor, Washington, D.C. 20210, by filing a notice of appeals with = the=20 office of the district director for the compensation district in = which the=20 decision or order appealed from was filed and by submitting to the = Board a=20 petition for review of such decision or order, in accordance with = the=20 provisions of part 802 of this title 20.

=A7 702.392   Appeals; what may be=20 appealed.
=20 top

An appeal raising a substantial question of law or fact may be = taken=20 from a decision with respect to a claim under the Act. Such = appeals may be=20 taken from compensation orders when they have been filed as = provided for=20 in =A7702.349.

=A7 702.393   Appeals; time = limitations.
=20 top

The notice of appeal (see =A7702.391) shall be filed with the = district=20 director within 30 days of the filing of the decision or order = complained=20 of, as defined and described in =A7=A7802.205 and 802.206 of this = title. A=20 petition for review of the decision or order is required to be = filed=20 within 30 days after receipt of the Board's acknowledgment of the = notice=20 of appeal, as provided in =A7802.210 of this title.

=A7 702.394   Appeals; = procedure.
=20 top

The procedure for appeals to the Benefits Review Board shall be = as=20 provided by the Board in its Rules of Practice and Procedure, set = forth in=20 part 802 of this title.

Subpart D=97Medical Care and Supervision
=20 top
=A7 702.401   Medical care = defined.
=20 top

(a) Medical care shall include medical, surgical, and other = attendance=20 or treatment, nursing and hospital services, laboratory, X-ray and = other=20 technical services, medicines, crutches, or other apparatus and = prosthetic=20 devices, and any other medical service or supply, including the = reasonable=20 and necessary cost of travel incident thereto, which is recognized = as=20 appropriate by the medical profession for the care and treatment = of the=20 injury or disease.

(b) An employee may rely on treatment by prayer or spiritual = means=20 alone, in accordance with the tenets and practice of a recognized = church=20 or religious denomination, by an accredited practitioner of such=20 recognized church or religious denomination, and nursing services = rendered=20 in accordance with such tenets and practice without loss or = diminution of=20 compensation or benefits under the Act. For purposes of this = section, a=20 recognized church or religious denomination shall be any religious = organization: (1) That is recognized by the Social Security = Administration=20 for purposes of reimbursements for treatment under Medicare and = Medicaid=20 or (2) that is recognized by the Internal Revenue Service for = purposes of=20 tax exempt status.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,=20 1985]

=A7 702.402   Employer's duty to furnish;=20 duration.
=20 top

It is the duty of the employer to furnish appropriate medical = care (as=20 defined in =A7702.401(a)) for the employee's injury, and for such = period as=20 the nature of the injury or the process of recovery may = require.

[50 FR 402, Jan. 3, 1985]

=A7 702.403   Employee's right to choose = physician;=20 limitations.
=20 top

The employee shall have the right to choose his/her attending = physician=20 from among those authorized by the Director, OWCP, to furnish such = care=20 and treatment, except those physicians included on the Secretary's = list of=20 debarred physicians. In determining the choice of a physician,=20 consideration must be given to availability, the employee's = condition and=20 the method and means of transportation. Generally 25 miles from = the place=20 of injury, or the employee's home is a reasonable distance to = travel, but=20 other pertinent factors must also be taken into consideration.

[50 FR 402, Jan. 3, 1985]

=A7 702.404   Physician = defined.
=20 top

The term physician includes doctors of medicine (MD), = surgeons,=20 podiatrists, dentists, clinical psychologists, optometrists,=20 chiropractors, and osteopathic practitioners within the scope of = their=20 practice as defined by State law. The term includes chiropractors = only to=20 the extent that their reimbursable services are limited to = treatment=20 consisting of manual manipulation of the spine to correct a = subluxation=20 shown by X-ray or clinical findings. Physicians defined in this = part may=20 interpret their own X-rays. All physicians in these categories are = authorized by the Director to render medical care under the Act.=20 Naturopaths, faith healers, and other practitioners of the healing = arts=20 which are not listed herein are not included within the term = =93physician=94=20 as used in this part.

[42 FR 45303, Sept. 9, 1977]

=A7 702.405   Selection of physician;=20 emergencies.
=20 top

Whenever the nature of the injury is such that immediate = medical care=20 is required and the injured employee is unable to select a = physician, the=20 employer shall select a physician. Thereafter the employee may = change=20 physicians when he is able to make a selection. Such changes shall = be made=20 upon obtaining written authorization from the employer or, if = consent is=20 withheld, from the district director. The Director will direct=20 reimbursement of medical claims for services rendered by = physicians or=20 health care providers who are on the list of those excluded from = providing=20 care under the Act, if such services were rendered in an = emergency. (See=20 =A7=A7702.417 and 702.435(b)).

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,=20 1985]

=A7 702.406   Change of physicians;=20 non-emergencies.
=20 top

(a) Whenever the employee has made his initial, free choice of = an=20 attending physician, he may not thereafter change physicians = without the=20 prior written consent of the employer (or carrier) or the district = director. Such consent shall be given in cases where an employee's = initial=20 choice was not of a specialist whose services are necessary for, = and=20 appropriate to, the proper care and treatment of the compensable = injury or=20 disease. In all other cases, consent may be given upon a showing = of good=20 cause for change.

(b) The district director for the appropriate compensation = district may=20 order a change of physicians or hospitals when such a change is = found to=20 be necessary or desirable or where the fees charged exceed those=20 prevailing within the community for the same or similar services = or exceed=20 the provider's customary charges.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,=20 1985]

=A7 702.407   Supervision of medical=20 care.
=20 top

The Director, OWCP, through the district directors and their = designees,=20 shall actively supervise the medical care of an injured employee = covered=20 by the Act. Such supervision shall include:

(a) The requirement that periodic reports on the medical care = being=20 rendered be filed in the office of the district director, the = frequency=20 thereof being determined by order of the district director or = sound=20 judgment of the attending physician as the nature of the injury = may=20 dictate;

(b) The determination of the necessity, character and = sufficiency of=20 any medical care furnished or to be furnished the employee, = including=20 whether the charges made by any medical care provider exceed those = permitted under the Act;

(c) The determination of whether a change of physicians, = hospitals or=20 other persons or locales providing treatment should be made or is=20 necessary;

(d) The further evaluation of medical questions arising in any = case=20 under the Act, with respect to the nature and extent of the = covered=20 injury, and the medical care required therefor.

[38 FR 26861, Sept. 26, 1973, as amended at 50 FR 402, Jan. 3,=20 1985]

=A7 702.408   Evaluation of medical = questions;=20 impartial specialists.
=20 top

In any case in which medical questions arise with respect to = the=20 appropriate diagnosis, extent, effect of, appropriate treatment, = and the=20 duration of any such care or treatment, for an injury covered by = the Act,=20 the Director, OWCP, through the district directors having = jurisdiction,=20 shall have the power to evaluate such questions by appointing one = or more=20 especially qualified physicians to examine the employee, or in the = case of=20 death to make such inquiry as may be appropriate to the facts and=20 circumstances of the case. The physician or physicians, including=20 appropriate consultants, should report their findings with respect = to the=20 questions raised as expeditiously as possible. Upon receipt of = such=20 report, action appropriate therewith shall be taken.

=A7 702.409   Evaluation of medical = questions;=20 results disputed.
=20 top

Any party who is dissatisfied with such report may request a = review or=20 reexamination of the employee by one or more different physicians = employed=20 by or selected by the Director, and such review or reexamination = shall be=20 granted unless it is found that it is clearly unwarranted. Such = review=20 shall be completed within 2 weeks from the date ordered unless it = is=20 impossible to complete the review and render a report thereon = within such=20 time period. Upon receipt of the report of this additional review = and=20 reexamination, such action as may be appropriate shall forthwith = be=20 taken.

=A7 702.410   Duties of employees with = respect to=20 special examinations.
=20 top

(a) For any special examination required of an employee by = =A7=A7702.408=20 and 702.409, the employee shall submit to such examination at such = place=20 as is designated in the order to report, but the place so selected = shall=20 be reasonably convenient for the employee.

(b) Where an employee fails to submit to an examination = required by=20 =A7=A7702.408 and 702.409, the district director or administrative = law judge=20 may order that no compensation otherwise payable shall be paid for = any=20 period during which the employee refuses to submit to such = examination=20 unless circumstances justified the refusal.

(c) Where an employee unreasonably refuses to submit to medical = or=20 surgical treatment, or to an examination by a physician selected = by the=20 employer, the district director or administrative law judge may by = order=20 suspend the payment of further compensation during such time as = the=20 refusal continues. Except that refusal to submit to medical = treatment=20 because of adherence to the tenets of a recognized church or = religious=20 denomination as described in =A7702.401(b) shall not cause the = suspension of=20 compensation.

[42 FR 45303, Sept. 9, 1977, as amended at 50 FR 402, Jan. 3, = 1985; 51=20 FR 4286, Feb. 3, 1986]

=A7 702.411   Special examinations; nature = of=20 impartiality of specialists.
=20 top

(a) The special examinations required by =A7702.408 shall be = accomplished=20 in a manner designed to preclude prejudgment by the impartial = examiner. No=20 physician previously connected with the case shall be present, nor = may any=20 other physician selected by the employer, carrier, or employee be = present.=20 The impartial examiner may be made aware, by any party or by the = OWCP, of=20 the opinions, reports, or conclusions of any prior examining = physician=20 with respect to the nature and extent of the impairment, its = cause, or its=20 effect upon the wage-earning capacity of the injured employee, if = the=20 district director determines that, for good cause, such opinions, = reports,=20 or conclusions shall be made available. Upon request, any party = shall be=20 given a copy of all materials made available to the impartial=20 examiner.

(b) The impartiality of the specialists shall not be considered = to have=20 been compromised if the district director deems it advisable to, = and does,=20 apprise the specialist by memorandum of those undisputed facts = pertaining=20 to the nature of the employee's employment, of the nature of the = injury,=20 of the post-injury employment activity, if any, and of any other = facts=20 which are not disputed and are deemed pertinent to the type of = injury=20 and/or the type of examination being conducted.

(c) No physician selected to perform impartial examinations = shall be,=20 or shall have been for a period of 2 years prior to the = examination, an=20 employee of an insurance carrier or self-insured employer, or who = has=20 accepted or participated in any fee from an insurance carrier or=20 self-insured employer, unless the parties in interest agree = thereto.

[38 FR 26861, Sept. 26, 1973, as amended at 42 FR 45303, Sept. = 9,=20 1977]

=A7 702.412   Special examinations; costs = chargeable=20 to employer or carrier.
=20 top

(a) The Director or his designee ordering the special = examination shall=20 have the power, in the exercise of his discretion, to charge the = cost of=20 the examination or review to the employer, to the insurance = carrier, or to=20 the special fund established by section 44 of the Act, 33 U.S.C. = 944.

(b) The Director or his designee may also order the employer or = the=20 insurance carrier to provide the employee with the services of an=20 attendant, where the district director considers such services = necessary,=20 because the employee is totally blind, has lost the use of both = hands, or=20 both feet or is paralyzed and unable to walk, or because of other=20 disability making the employee so helpless as to require constant=20 attendance in the discretion of the district director. Fees = payable for=20 such services shall be in accord with the provisions of = =A7702.413.

[42 FR 45303, Sept. 9, 1977]

=A7 702.413   Fees for medical services; = prevailing=20 community charges.
=20 top

All fees charged by medical care providers for persons covered = by this=20 Act shall be limited to such charges for the same or similar care=20 (including supplies) as prevails in the community in which the = medical=20 care provider is located and shall not exceed the customary = charges of the=20 medical care provider for the same or similar services. Where a = dispute=20 arises concerning the amount of a medical bill, the Director shall = determine the prevailing community rate using the OWCP Medical Fee = Schedule (as described in 20 CFR 10.411) to the extent = appropriate, and=20 where not appropriate, may use other state or federal fee = schedules. The=20 opinion of the Director that a charge by a medical care provider = disputed=20 under the provisions of section 702.414 exceeds the charge which = prevails=20 in the community in which said medical care provider is located = shall=20 constitute sufficient evidence to warrant further proceedings = pursuant to=20 section 702.414 and to permit the Director to direct the claimant = to=20 select another medical provider for care to the claimant.

[60 FR 51348, Oct. 2, 1995]

=A7 702.414   Fees for medical services; = unresolved=20 disputes on prevailing charges.
=20 top

(a) The Director may, upon written complaint of an interested = party, or=20 upon the Director's own initiative, investigate any medical care = provider=20 or any fee for medical treatment, services, or supplies that = appears to=20 exceed prevailing community charges for similar treatment, = services or=20 supplies or the provider's customary charges. The OWCP medical fee = schedule (see section 702.413) shall be used by the Director, = where=20 appropriate, to determine the prevailing community charges for a = medical=20 procedure by a physician or hospital (to the extent such procedure = is=20 covered by the OWCP fee schedule). The Director's investigation = may=20 initially be conducted informally through contact of the medical = care=20 provider by the district director. If this informal investigation = is=20 unsuccessful further proceedings may be undertaken. These = proceedings may=20 include, but not be limited to: an informal conference involving = all=20 interested parties; agency interrogatories to the pertinent = medical care=20 provider; and issuance of subpoenas duces tecum for documents = having a=20 bearing on the dispute.

(1) A claim by the provider that the OWCP fee schedule does not = represent the prevailing community rate will be considered only = where the=20 following circumstances are presented:

(i) where the actual procedure performed was incorrectly = identified by=20 medical procedure code;

(ii) that the presence of a severe or concomitant medical = condition=20 made treatment especially difficult;

(iii) the provider possessed unusual qualifications (board=20 certification in a specialty is not sufficient evidence in itself = of=20 unusual qualifications); or

(iv) the provider or service is not one covered by the OWCP fee = schedule as described by 20 CFR 10.411(d)(1).

(2) The circumstances listed in paragraph (a)(1) of this = section are=20 the only ones which will justify reevaluation of the amount = calculated=20 under the OWCP fee schedule.

(b) The failure of any medical care provider to present any = evidence=20 required by the Director pursuant to this section without good = cause shall=20 not prevent the Director from making findings of fact.

(c) After any proceeding under this section the Director shall = make=20 specific findings on whether the fee exceeded the prevailing = community=20 charges (as established by the OWCP fee schedule, where = appropriate) or=20 the provider's customary charges and provide notice of these = findings to=20 the affected parties.

(d) The Director may suspend any such proceedings if after = receipt of=20 the written complaint the affected parties agree to withdraw the=20 controversy from agency consideration on the basis that such = controversy=20 has been resolved by the affected parties. Such suspension, = however, shall=20 be at the discretion of the Director.

[51 FR 4286, Feb. 3, 1986, as amended at 60 FR 51348, Oct. 2,=20 1995]

=A7 702.415   Fees for medical services; = unresolved=20 disputes on charges; procedure.
=20 top

After issuance of specific findings of fact and proposed action = by the=20 Director as provided in =A7702.414 any affected provider employer = or other=20 interested party has the right to seek a hearing pursuant to = section 556=20 of title 5, United States Code. Upon written request for such a = hearing,=20 the matter shall be referred by the District Director to the OALJ = for=20 formal hearing in accordance with the procedures in subpart C of = this=20 part. If no such request for a hearing is filed with the district = director=20 within thirty (30) days the findings issued pursuant to =A7702.414 = shall be=20 final.

[51 FR 4286, Feb. 3, 1986]

=A7 702.416   Fees for medical services; = disputes;=20 hearings; necessary parties.
=20 top

At formal hearings held pursuant to =A7702.415, the necessary = parties=20 shall be the person whose fee or cost charge is in question and = the=20 Director, or their representatives. The employer or carrier may = also be=20 represented, and other parties, or associations having an interest = in the=20 proceedings, may be heard, in the discretion of the administrative = law=20 judge.

=A7 702.417   Fees for medical services; = disputes;=20 effect of adverse decision.
=20 top

If the final decision and order upholds the finding of the = Director=20 that the fee or charge in dispute was not in accordance with = prevailing=20 community charges or the provider's customary charges, the person = claiming=20 such fee or cost charge shall be given thirty (30) days after = filing of=20 such decision and order to make the necessary adjustment. If such = person=20 still refuses to make the required readjustment, such person shall = not be=20 authorized to conduct any further treatments or examinations (if a = physician) or to provide any other services or supplies (if by = other than=20 a physician). Any fee or cost charge subsequently incurred for = services=20 performed or supplies furnished shall not be a reimbursable = medical=20 expense under this subpart. This prohibition shall apply = notwithstanding=20 the fact that the services performed or supplies furnished were in = all=20 other respects necessary and appropriate within the provision of = these=20 regulations. However, the Director may direct reimbursement of = medical=20 claims for services rendered if such services were rendered in an=20 emergency (see =A7702.435(b)). At the termination of the = proceedings=20 provided for in this section the district director shall determine = whether=20 further proceedings under =A7702.432 should be initiated.

[50 FR 403, Jan. 3, 1985]

Medical Procedures
=20 top
=A7 702.418   Procedure for requesting = medical care;=20 employee's duty to notify employer.
=20 top

(a) As soon as practicable, but within 30 days after occurrence = of an=20 injury covered by the Act, or within 30 days after an employee = becomes=20 aware, or in the exercise of reasonable diligence should be aware, = of the=20 relationship between an injury or disease and his employment, the = injured=20 employee or someone on his behalf shall give written notice = thereof to the=20 district director having jurisdiction over the place where the = injury=20 occurred and to the employer. If a form has been prescribed for = such=20 purpose it shall be used, if available and practicable under the=20 circumstances. Notices filed under subpart B of this part, if on = the form=20 prescribed by the Director for such purpose, satisfy the written = notice=20 requirements of this subpart.

(b) In the case of an occupational disease which does not = immediately=20 result in a disability or death, such notice shall be given within = one=20 year after the employee becomes aware, or in the exercise of = reasonable=20 diligence or by reason of medical advice should have been aware, = of the=20 relationship between the employment, the disease, and the death or = disability. Notice shall be given: (1) To the district director in = the=20 compensation district in which the injury or death occurred, and = (2) to=20 the employer.

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[50 FR 403, Jan. 3, 1985]

=A7 702.419   Action by employer upon = acquiring=20 knowledge or being given notice of injury.
=20 top

Whenever an employer acquires knowledge of an employee's = injury,=20 through receipt of a written notice or otherwise, said employer = shall=20 forthwith authorize, in writing, appropriate medical care. If a = form is=20 prescribed for this purpose it shall be used whenever practicable. = Authorization shall also be given in cases where an employee's = initial=20 choice was not of a specialist whose services are necessary for = and=20 appropriate to the proper care and treatment of the compensable = injury or=20 disease. In all other cases, consent may be given upon a showing = of good=20 cause for change.

[50 FR 403, Jan. 3, 1985]

=A7 702.420   Issuance of authorization; = binding=20 effect upon insurance carrier.
=20 top

The issuance of an authorization for treatment by the employer = shall=20 bind his insurance carrier to furnish and pay for such care and=20 services.

=A7 702.421   Effect of failure to obtain = initial=20 authorization.
=20 top

An employee shall not be entitled to recover for medical = services and=20 supplies unless:

(a) The employer shall have refused or neglected a request to = furnish=20 such services and the employee has complied with sections 7 (b) = and (c) of=20 the Act, 33 U.S.C. 907 (b) and (c) and these regulations; or

(b) The nature of the injury required such treatment and = services and=20 the employer or his superintendent or foreman having knowledge of = such=20 injury shall have neglected to provide or authorize same.

[50 FR 403, Jan. 3, 1985]

=A7 702.422   Effect of failure to report = on medical=20 care after initial authorization.
=20 top

(a) Notwithstanding that medical care is properly obtained in=20 accordance with these regulations, a finding by the Director that = a=20 medical care provider has failed to comply with the reporting = requirements=20 of the Act shall operate as a mandatory revocation of = authorization of=20 such medical care provider. The effect of a final finding to this = effect=20 operates to release the employer/carrier from liability of the = expenses of=20 such care. In addition to this, when such a finding is made by the = Director, the claimant receiving treatment will be directed by the = district director to seek authorization for medical care from = another=20 source.

(b) For good cause shown, the Director may excuse the failure = to comply=20 with the reporting requirements of the Act and further, may make = an award=20 for the reasonable value of such medical care.

[50 FR 403, Jan. 3, 1985]

Debarment of Physicians and Other Providers of Medical = Services and=20 Suppliers and Claims Representatives
=20 top
=A7 702.431   Grounds for = debarment.
=20 top

A physician or health care provider shall be debarred if it is = found,=20 after appropriate investigation as described in =A7702.414 and = proceedings=20 under =A7=A7702.432 and 702.433, that such physician or health = care provider=20 has:

(a) Knowingly and willfully made, or caused to be made, any = false=20 statement or misrepresentation of a material fact for use in a = claim for=20 compensation or claim for reimbursement of medical expenses under = this=20 Act;

(b) Knowingly and willfully submitted, or caused to be = submitted, a=20 bill or request for payment under this Act containing a charge = which the=20 Director finds to be substantially in excess of the charge for the = service, appliance, or supply prevailing within the community or = in excess=20 of the provider's customary charges, unless the Director finds = there is=20 good cause for the bill or request containing the charge;

(c) Knowingly and willfully furnished a service, appliance, or = supply=20 which is determined by the Director to be substantially in excess = of the=20 need of the recipient thereof or to be of a quality which = substantially=20 fails to meet professionally recognized standards;

(d) Been convicted under any criminal statute, without regard = to=20 pending appeal thereof, for fraudulent activities in connection = with=20 federal or state program for which payments are made to physicians = or=20 providers of similar services, appliances, or supplies; or has = otherwise=20 been excluded from participation in such program.

(e) The fact that a physician or health care provider has been=20 convicted of a crime previously described in (d), or excluded or=20 suspended, or has resigned in lieu of exclusion or suspension, = from=20 participation in any program as described in (d), shall be a prima = facie=20 finding of fact for purposes of section 7(j)(2) of the Act, 33 = U.S.C.=20 907(j)(2).

[50 FR 404, Jan. 3, 1985]

=A7 702.432   Debarment = process.
=20 top

(a) Pertaining to health care providers. Upon receipt of = information indicating that a physician or health care provider = has=20 engaged in activities enumerated in subparagraphs (a) through (c) = of=20 =A7702.431, the Director, through the Director's designees, may = evaluate the=20 information (as described in =A7702.414) to ascertain whether = proceedings=20 should be initiated against the physician or health care provider = to=20 remove authorization to render medical care or service under the = Longshore=20 and Harbor Workers' Compensation Act.

(b) Pertaining to health care providers and claims = representatives.=20 If after appropriate investigation the Director determines = that=20 proceedings should be initiated, written notice thereof sent = certified=20 mail, return receipt requested, shall be provided to the = physician, health=20 care provider or claims representative containing the = following:

(1) A concise statement of the grounds upon which debarment = will be=20 based;

(2) A summary of the information upon which the director has = relied in=20 reaching an initial decision that debarment proceedings should be=20 initiated;

(3) An invitation to the physician, health care provider or = claims=20 representative to: (i) Resign voluntarily from participation in = the=20 program without admitting or denying the allegations presented in = the=20 written notice; or (ii) request a decision on debarment to be = based upon=20 the existing agency record and any other information the = physician, health=20 care provider or claims representative may wish to provide;

(4) A notice of the physician's, health care provider's or = claims=20 representative's right, in the event of an adverse ruling by the = Director,=20 to request a formal hearing before an administrative law = judge;

(5) A notice that should the physician, health care provider or = claims=20 representative fail to provide written answer to the written = notice=20 described in this section within thirty (30) days of receipt, the = Director=20 may deem the allegations made therein to be true and may order = exclusion=20 of the physician, health care provider or claims representative = without=20 conducting any further proceedings; and

(6) The name and address of the district director who shall be=20 responsible for receiving the answer from the physician, health = care=20 provider or claims representative.

(c) Should the physician, health care provider or claims = representative=20 fail to file a written answer to the notice described in this = section=20 within thirty (30) days of receipt thereof, the Director may deem = the=20 allegations made therein to be true and may order debarment of the = physician, health care provider or claims representative.

(d) The physician, health care provider or claims = representative may=20 inspect or request copies of information in the agency records at = any time=20 prior to the Director's decision.

(e) The Director shall issue a decision in writing, and shall = send a=20 copy of the decision to the physician, health care provider or = claims=20 representative by certified mail, return receipt requested. The = decision=20 shall advise the physician, health care provider or claims = representative=20 of the right to request, within thirty (30) days of the date of an = adverse=20 decision, a formal hearing before an administrative law judge = under the=20 procedures set forth herein. The filing of such a request for = hearing=20 within the time specified shall operate to stay the effectiveness = of the=20 decision to debar.

[50 FR 404, Jan. 3, 1985]

=A7 702.433   Requests for = hearing.
=20 top

(a) A request for hearing shall be sent to the district = director and=20 contain a concise notice of the issues on which the physician, = health care=20 provider or claims representative desires to give evidence at the = hearing=20 with identification of witnesses and documents to be submitted at = the=20 hearing.

(b) If a request for hearing is timely received by the district = director, the matter shall be referred to the Chief Administrative = Law=20 Judge who shall assign it for hearing with the assigned = administrative law=20 judge issuing a notice of hearing for the conduct of the hearing. = A copy=20 of the hearing notice shall be served on the physician, health = care=20 provider or claims representative by certified mail, return = receipt=20 requested.

(c) If a request for hearing contains identification of = witnesses or=20 documents not previously considered by the Director, the Director = may make=20 application to the assigned administrative law judge for an offer = of proof=20 from the physician, health care provider or claims representative = for the=20 purpose of discovery prior to hearing. If the offer of proof = indicates=20 injection of new issues or new material evidence not previously = considered=20 by the Director, the Director may request a remand order for = purposes of=20 reconsideration of the decision made pursuant to =A7702.432 of = these=20 regulations.

(d) The parties may make application for the issuance of = subpoenas upon=20 a showing of good cause therefore to the administrative law = judge.

(e) The administrative law judge shall issue a recommended = decision=20 after the termination of the hearing. The recommended decision = shall=20 contain appropriate findings, conclusions and a recommended order = and be=20 forwarded, together with the record of the hearing, to the = Administrative=20 Review Board for a final decision. The recommended decision shall = be=20 served upon all parties to the proceeding.

(f) Based upon a review of the record and the recommended = decision of=20 the administrative law judge, the Administrative Review Board = shall issue=20 a final decision.

[50 FR 404, Jan. 3, 1985, as amended at 55 FR 28606, July 12, = 1990; 61=20 FR 19984, May 3, 1996]

=A7 702.434   Judicial review.
=20 top

(a) Any physician, health care provider or claims = representative, after=20 any final decision of the Administrative Review Board made after a = hearing=20 to which such person was a party, irrespective of the amount of=20 controversy, may obtain a review of such decision by a civil = action=20 commenced within sixty (60) days after the mailing to him or her = of notice=20 of such decision, but the pendency of such review shall not = operate as a=20 stay upon the effect of such decision. Such action shall be = brought in the=20 Court of Appeals of the United States for the judicial circuit in = which=20 the plaintiff resides or has his or her principal place of = business, or=20 the Court of Appeals for the District of Columbia pursuant to = section=20 7(j)(4) of the Act, 33 U.S.C. 907(j)(4).

(b) As part of the Administrative Review Board answer, he or = she shall=20 file a certified copy of the transcript of the record of the = hearing,=20 including all evidence submitted in connection therewith.

(c) The findings of fact of the Administrative Review Board, if = based=20 on substantial evidence in the record as a whole, shall be = conclusive.

[50 FR 405, Jan. 3, 1985, as amended at 55 FR 28606, July 12, = 1990; 61=20 FR 19984, May 3, 1996]

=A7 702.435   Effects of = debarment.
=20 top

(a) The Director shall give notice of the debarment of a = physician,=20 hospital, or provider of medical support services or supplies = to:

(1) All OWCP district offices;

(2) The Health Care Financing Administration;

(3) The State or Local authority responsible for licensing or=20 certifying the debarred party;

(4) The employers and authorized insurers under the Act by = means of an=20 annual bulletin sent to them by the Director; and

(5) The general public by posting in the district office in the = jurisdiction where the debarred party maintains a place of = business.

If a claims representative is debarred, the Director shall give = notice=20 to those groups listed in paragraphs (a) (1), (3), (4), and (5) of = this=20 section.

(b) Notwithstanding any debarment under this subpart, the = Director=20 shall not refuse a claimant reimbursement for any otherwise = reimbursable=20 medical expense if the treatment, service or supply was rendered = by=20 debarred provider in an emergency situation. However, such = claimant will=20 be directed by the Director to select a duly qualified provider = upon the=20 earliest opportunity.

[50 FR 405, Jan. 3, 1985]

=A7 702.436   Reinstatement.
=20 top

(a) If a physician or health care provider has been debarred or = pursuant to =A7702.431(d) or if a claims representative has been = debarred=20 pursuant to =A7702.131(c) (1) or (3) the person debarred will be=20 automatically reinstated upon notice to the Director that the = conviction=20 or exclusion has been reversed or withdrawn. However, such = reinstatement=20 will not preclude the Director from instituting debarment = proceedings=20 based upon the subject matter involved.

(b) A physician, health care provider or claims representative=20 otherwise debarred by the Director may apply for reinstatement to=20 participate in the program by application to the Director after = three=20 years from the date of entry of the order of exclusion. Such = application=20 for reinstatement shall be addressed to the Associate Director for = the=20 Longshore program, and shall contain a statement of the basis of = the=20 application along with any supporting documentation.

(c) The Director may further investigate the merits of the=20 reinstatement application by requiring special reporting = procedures from=20 the applicant for a probationary period not to exceed six months = to be=20 monitored by the district office where the provider maintains a = place of=20 business.

(d) At the end of aforesaid probationary period, the Director = may order=20 full reinstatement of the physician, health care provider or = claims=20 representative if such reinstatement is clearly consistent with = the=20 program goal to protect itself against fraud and abuse and, = further, if=20 the physician, health care provider or claims representative has = given=20 reasonable assurances that the basis for the debarment will not be = repeated.

[50 FR 405, Jan. 3, 1985]

Hearing Loss Claims
=20 top
=A7 702.441   Claims for loss of = hearing.
=20 top

(a) Claims for hearing loss pending on or filed after September = 28,=20 1984 (the date of enactment of Pub. L. 98=96426) shall be = adjudicated with=20 respect to the determination of the degree of hearing impairment = in=20 accordance with these regulations.

(b) An audiogram shall be presumptive evidence of the amount of = hearing=20 loss on the date administered if the following requirements are = met:

(1) The audiogram was administered by a licensed or certified=20 audiologist, by a physician certified by the American Board of=20 Otolaryngology, or by a technician, under an audiologist's or = physician's=20 supervision, certified by the Council of Accreditation on = Occupational=20 Hearing Conservation, or by any other person considered qualified = by a=20 hearing conservation program authorized pursuant to 29 CFR = 1910.95(g)(3)=20 promulgated under the Occupational Safety and Health Act of 1970 = (29=20 U.S.C. 667). Thus, either a professional or trained technician may = conduct=20 audiometric testing. However, to be acceptable under this = subsection, a=20 licensed or certified audiologist or otolaryngologist, as defined, = must=20 ultimately interpret and certify the results of the audiogram. The = accompanying report must set forth the testing standards used and = describe=20 the method of evaluating the hearing loss as well as providing an=20 evaluation of the reliability of the test results.

(2) The employee was provided the audiogram and a report = thereon at the=20 time it was administered or within thirty (30) days = thereafter.

(3) No one produces a contrary audiogram of equal probative = value=20 (meaning one performed using the standards described herein) made = at the=20 same time. =93Same time=94 means within thirty (30) days thereof = where noise=20 exposure continues or within six (6) months where exposure to = excessive=20 noise levels does not continue. Audiometric tests performed prior = to the=20 enactment of Public Law 98=96426 will be considered presumptively = valid if=20 the employer complied with the procedures in this section for=20 administering audiograms.

(c) In determining the amount of pre-employment hearing loss, = an=20 audiogram must be submitted which was performed prior to = employment or=20 within thirty (30) days of the date of the first = employment-related noise=20 exposure. Audiograms performed after December 27, 1984 must comply = with=20 the standards described in paragraph (d) of this section.

(d) In determining the loss of hearing under the Act, the = evaluators=20 shall use the criteria for measuring and calculating hearing = impairment as=20 published and modified from time-to-time by the American Medical=20 Association in the Guides to the Evaluation of Permanent = Impairment,=20 using the most currently revised edition of this publication. = In=20 addition, the audiometer used for testing the individual's = threshold of=20 hearing must be calibrated according to current American National = Standard=20 Specifications for Audiometers. Audiometer testing procedures = required by=20 hearing conservation programs pursuant to the Occupational Safety = and=20 Health Act of 1970 should be followed (as described at 29 CFR = 1910.95 and=20 appendices).

(Approved by the Office of Management and Budget = under=20 control number 1215=960160)

[50 FR 405, Jan. 3, 1985]

Subpart E=97Vocational Rehabilitation
=20 top
=A7 702.501   Vocational rehabilitation;=20 objective.
=20 top

The objective of vocational rehabilitation is the return of = permanently=20 disabled persons to gainful employment commensurate with their = physical or=20 mental impairments, or both, through a program of reevaluation or=20 redirection of their abilities, or retraining in another = occupation, or=20 selective job placement assistance.

=A7 702.502   Vocational rehabilitation; = action by=20 district directors.
=20 top

All injury cases which are likely to result in, or have = resulted in,=20 permanent disability, and which are of a character likely to = require=20 review by a vocational rehabilitation adviser on the staff of the=20 Director, shall promptly be referred to such adviser by the = district=20 director or his designee having charge of the case. A form has = been=20 prescribed for such purpose and shall be used. Medical data and = other=20 pertinent information shall accompany the referral.

(Approved = by the=20 Office of Management and Budget under control number 1215=960051)

(Pub. L. No. 96=96511)

[38 FR 26861, Sept. 26, 1973, as amended at 49 FR 18294, Apr. = 30,=20 1984]

=A7 702.503   Vocational rehabilitation; = action by=20 adviser.
=20 top

The vocational rehabilitation adviser, upon receipt of the = referral,=20 shall promptly consider the feasibility of a vocational referral = or=20 request for cooperative services from available resources or = facilities,=20 to include counseling, vocational survey, selective job placement=20 assistance, and retraining. Public or private agencies may be = utilized in=20 arranging necessary vocational rehabilitation services under the = Federal=20 Vocational Rehabilitation Act, 29 U.S.C. 31 et seq.

=A7 702.504   Vocational rehabilitation; = referrals=20 to State Employment Agencies.
=20 top

Vocational rehabilitation advisers will arrange referral = procedures=20 with State Employment Service units within their assigned = geographical=20 districts for the purpose of securing employment counseling, job=20 classification, and selective placement assistance. Referrals = shall be=20 made to State Employment Offices based upon the following:

(a) Vocational rehabilitation advisers will screen cases so as = to refer=20 only those disabled employees who are considered to have = employment=20 potential;

(b) Only employees will be referred who have permanent, = compensable=20 disabilities resulting in a significant vocational handicap and = loss of=20 wage earning capacity;

(c) Disabled employees, whose initial referral to former = private=20 employers did not result in a job reassignment or in a job = retention,=20 shall be referred for employment counseling and/or selective = placement=20 unless retraining services consideration is requested;

(d) The vocational rehabilitation advisers shall arrange for = employees'=20 referrals if it is ascertained that they may benefit from = registering with=20 the State Employment Service;

(e) Referrals will be made to appropriate State Employment = Offices by=20 letter, including all necessary information and a request for a = report on=20 the services provided the employee when he registers;

(f) The injured employee shall be advised of available job = counseling=20 services and informed that he is being referred for employment and = selective placement;

(g) A followup shall be made within 60 days on all referrals to = assure=20 uniform reporting by State agencies on cases referred for a = vocational=20 survey.

=A7 702.505   Vocational rehabilitation; = referrals=20 to other public and private agencies.
=20 top

Referrals to such other public and private agencies providing=20 assistance to disabled persons such as public welfare agencies, = Public=20 Health Services facilities, social services units of the Veterans=20 Administration, the Social Security Administration, and other such = agencies, shall be made by the vocational rehabilitation adviser, = where=20 appropriate, on an individual basis when requested by disabled = employees.=20 Such referrals do not provide for a service cost reimbursement by = the=20 Department of Labor.

=A7 702.506   Vocational rehabilitation;=20 training.
=20 top

Vocational rehabilitation training shall be planned in = anticipation of=20 a short, realistic, attainable vocational objective terminating in = remunerable employment, and in restoring wage-earning capacity or=20 increasing it materially. The following procedures shall apply in=20 arranging for or providing training:

(a) The vocational rehabilitation adviser shall arrange for and = develop=20 all vocational training programs.

(b) Training programs shall be developed to meet the varying = needs of=20 eligible beneficiaries, and may include courses at colleges, = technical=20 schools, training at rehabilitation centers, on-the-job training, = or=20 tutorial courses. The courses shall be pertinent to the occupation = for=20 which the employee is being trained.

(c) Training may be terminated if the injured employee fails to = cooperate with the Department of Labor or with the agency = supervising his=20 course of training. The employee shall be counseled before = training is=20 terminated.

(d) Reports shall be required at periodic intervals on all = persons in=20 approved training programs.

=A7 702.507   Vocational rehabilitation; = maintenance=20 allowance.
=20 top

(a) An injured employee who, as a result of injury, is or may = be=20 expected to be totally or partially incapacitated for a = remunerative=20 occupation and who, under the direction of the Director is being = rendered=20 fit to engage in a remunerative occupation, shall be paid = additional=20 compensation necessary for this maintenance, not exceeding $25 a = week. The=20 expense shall be paid out of the special fund established in = section 44 of=20 the Act, 33 U.S.C. 944. The maximum maintenance allowance shall = not be=20 provided on an automatic basis, but shall be based on the = recommendation=20 of a State agency that a claimant is unable to meet additional = costs by=20 reason of being in training.

(b) When required by reason of personal illness or hardship, = limited=20 periods of absence from training may be allowed without = terminating the=20 maintenance allowance. A maintenance allowance shall be terminated = when it=20 is shown to the satisfaction of the Director that a trainee is not = complying reasonably with the terms of the training plan or is = absenting=20 himself without good cause from training so as to materially = interfere=20 with the accomplishment of the training objective.

=A7 702.508   Vocational rehabilitation;=20 confidentiality of information.
=20 top

The following safeguards will be observed to protect the = confidential=20 character of information released regarding an individual = undergoing=20 rehabilitation:

(a) Information will be released to other agencies from which = an=20 injured employee has requested services only if such agencies have = established regulations assuring that such information will be = considered=20 confidential and will be used only for the purpose for which it is = provided;

(b) Interested persons and agencies have been advised that any=20 information concerning rehabilitation program employees is to be = held=20 confidential;

(c) A rehabilitation employee's written consent is secured for = release=20 of information regarding disability to a person, agency, or = establishment=20 seeking the information for purposes other than the approved=20 rehabilitation planning with such employee.

Subpart F=97Occupational Disease Which Does Not Immediately = Result in=20 Death or Disability
=20 top

Source:   50 FR 406, Jan. 3, = 1985,=20 unless otherwise noted.

=A7 702.601   Definitions.
=20 top

(a) Time of injury. For purposes of this subpart and = with=20 respect to an occupational disease which does not immediately = result in=20 death or disability, the time of injury shall be deemed to be the = date on=20 which the employee or claimant becomes aware, or in the exercise = of=20 reasonable diligence or by reason of medical advice should have = been=20 aware, of the relationship between the employment, the disease, = and the=20 death or disability.

(b) Disability. With regard to an occupational disease = for which=20 the time of injury, as defined in =A7702.601(a), occurs after the = employee=20 was retired, disability shall mean permanent impairment as = determined=20 according to the Guides to the Evaluation of Permanent = Impairment=20 which is prepared and modified from time-to-time by the = American=20 Medical Association, using the most currently revised edition of = this=20 publication. If this guide does not evaluate the impairment, other = professionally recognized standards may be utilized. The = disability=20 described in this paragraph shall be limited to permanent partial=20 disability. For that reason they are not subject to adjustments = under=20 section 10(f) of the Act, 33 U.S.C. 910(f).

(c) Retirement. For purposes of this subpart, retirement = shall=20 mean that the claimant, or decedent in cases involving survivor's=20 benefits, has voluntarily withdrawn from the workforce and that = there is=20 no realistic expectation that such person will return to the=20 workforce.

[50 FR 406, Jan. 3, 1985, as amended at 51 FR 4286, Feb. 3, = 1986]

=A7 702.602   Notice and = claims.
=20 top

(a) Time for giving notice of injury or death. Refer to=20 =A7702.207.

(b) Time for filing of claims. Refer to = =A7702.212.

=A7 702.603   Determining the payrate for=20 compensating occupational disease claims which become manifest = after=20 retirement.
=20 top

(a) If the time of injury occurs within the first year after = the=20 employee has retired, the payrate for compensation purposes shall = be one=20 fifty-second part of the employee's average annual earnings during = the=20 fifty-two week period preceding retirement.

(b) If the time of injury occurs more than one year after the = employee=20 has retired the payrate for compensation purposes shall be the = national=20 average weekly wage, determined according to section 6(b)(3) of = the Act,=20 33 U.S.C. 906(b)(3), at the time of injury.

=A7 702.604   Determining the amount of = compensation=20 for occupational disease claims which become manifest after=20 retirement.
=20 top

(a) If the claim is for disability benefits and the time of = injury=20 occurs after the employee has retired, compensation shall be=20 662/3percent of the payrate, as determined under = =A7702.603, times=20 the disability, as determined according to =A7702.601(b).

(b) If the claim is for death benefits and the time of injury = occurs=20 after the decedent has retired, compensation shall be the percent=20 specified in section 9 of the Act, 33 U.S.C. 909, times the = payrate=20 determined according to =A7702.603. Total weekly death benefits = shall not=20 exceed one fifty-second part of the decedent's average annual = earnings=20 during the fifty-two week period preceding retirement, such = benefits shall=20 be subject to the limitation provided for in section 6(b)(1) of = the Act,=20 33 U.S.C. 906(b)(1).

[50 FR 406, Jan. 3, 1985, as amended at 51 FR 4286, Feb. 3, = 1986]

Browse=20 Previous | Browse=20 Next

For questions or comments = regarding e-CFR=20 editorial content, features, or design, email ecfr@nara.gov.

For = questions=20 concerning e-CFR programming and delivery issues, email webteam@gpo.gov.

Section = 508 / Accessibility

 

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