OWCP will in fact provide written explanation of an acceptance if the agency contested the claim within 30 days of receiving the notice from the claimant, even if the claim was not contested on the notice itself.

Sec. 10.119 What action will OWCP take with respect to information submitted by the employer?

OWCP will consider all evidence submitted appropriately, and OWCP will inform the employee, the employee's representative, if any, and the employer of any action taken. Where an employer contests a claim within 30 days of the initial submittal and the claim is later approved, OWCP will notify the employer of the rationale for approving the claim.

Additional language has been added to Sec. 10.220 and Sec. 10.222(c), clarifying that the agency cannot stop COP to which the employee is otherwise entitled except for the reasons set out in these two sections, or unless OWCP directs COP to stop, or unless the individual has returned to work.

Sec. 10.222 When may an employer terminate COP which has already begun?

(c) An employer cannot otherwise stop COP unless it does so for one of the reasons found in this section or Sec. 10.220. Where an employer stops COP, it must file a controversion with OWCP, setting forth the basis on which it terminated COP, no later than the effective date of the termination.

Calculating COP.

One agency noted with respect to paragraph (d) that there appeared to be a change in how COP days are calculated in this section as proposed. The section states that days off are counted toward COP if COP was used in the days immediately before and after the days off. The comment pointed to an inadvertent modification in how days are calculated and the final version has been changed to read that if COP is used on the day before or the day after days off and disability is supported by medical evidence, the days off are counted toward COP.

Two Federal agencies noted that the inclusion of differential and/or Sunday premium pay in the pay rate for COP was contrary to provisions in two appropriation bills passed by Congress

"Employee's Responsibilities'' to emphasize that return-to-work efforts are required by employees as well as employers and OWCP. Certainly the employee, who has chosen his or her physician, has the most leverage over the physician at this crucial time and can best ensure that such medical evidence is submitted. The new language requiring the report to contain a statement as to when the employee can return to work is consistent with and essential to this goal.

Sec. 10.210 What are the employee's responsibilities in COP cases?

An employee who sustains a traumatic injury which he or she considers disabling, or someone authorized to act on his or her behalf, must take the following actions to ensure continuing eligibility for COP. The employee must:

(a) Complete and submit Form CA-1 to the employing agency as soon as possible, but no later than 30 days from the date the traumatic injury occurred.

(b) Ensure that medical evidence supporting disability resulting from the claimed traumatic injury, including a statement as to when the employee can return to his or her date of injury job, is provided to the employer within 10 calendar days after filing the claim for COP.

(c) Ensure that relevant medical evidence is submitted to OWCP, and cooperate with OWCP in developing the claim.

(d) Ensure that the treating physician specifies work limitations and provides them to the employer and/or representatives of OWCP.

(e) Provide to the treating physician a description of any specific alternative positions offered the employee, and ensure that the treating physician responds promptly to the employer and/or OWCP, with an opinion as to whether and how soon the employee could perform that or any other specific position.

Where an employee returns to work but takes intermittent COP for medical appointments only, and it suggested that a new section be added to specifically allow for this. COP is appropriately used for medical appointments, and while OWCP does not believe a separate section is needed, a phrase to this effect has been added to Sec. 10.205(a)(1).

Sec. 10.205 What conditions must be met to receive COP?

(a) To be eligible for COP, a person must:

(1) Have a ``traumatic injury'' as defined at Sec. 10.5(ee) which is job-related and the cause of the disability, and/or the cause of lost time due to the need for medical examination and treatment;

(2) File Form CA-1 within 30 days of the date of the injury (but if that form is not available, using another form would not alone preclude receipt); and

(3) Begin losing time from work due to the traumatic injury within 45 days of the injury.

(b) OWCP may find that the employee is not entitled to COP for other reasons consistent with the statute (see Sec. 10.220).One agency asked about the type of medical evidence necessary to support the continued payment of COP and requested further guidance from OWCP. The evaluation of medical evidence by the employing agency is limited to a determination of whether, on its face, the medical report supports disability. Agencies do not properly consider medical rationale.

One labor organization urged that Sec. 10.216 include a reference to paid leave in determining how COP is calculated, for fear that agencies would exclude it from their calculations. Certainly, paid leave must be included in the calculation of COP. While neither OWCP's regulations issued since 1975 nor the Federal (FECA) Procedure Manual make reference to paid leave, there is no indication that this absence has caused the feared exclusions to occur. Therefore, OWCP sees no need to add the requested reference.

Sec. 10.216 How is the pay rate for COP calculated?

The employer shall calculate COP using the period of time and the weekly pay rate.

(a) The pay rate for COP purposes is equal to the employee's regular ``weekly'' pay (the average of the weekly pay over the preceding 52 weeks).

(1) The pay rate excludes overtime pay, but includes other applicable extra pay except to the extent prohibited by law.

(2) Changes in pay or salary (for example, promotion, demotion, within-grade increases, termination of a temporary detail, etc.) which would have otherwise occurred during the 45-day period are to be reflected in the weekly pay determination.

(b) The weekly pay for COP purposes is determined according to the following formulas:

(1) For full or part-time workers (permanent or temporary) who work the same number of hours each week of the year (or of the appointment), the weekly pay rate is the hourly pay rate (A) in effect on the date of injury multiplied by ( x ) the number of hours worked each week (B): A x B = Weekly Pay Rate.

(2) For part-time workers (permanent or temporary) who do not work the same number of hours each week, but who do work each week of the year (or period of appointment), the weekly pay rate is an average of the weekly earnings, established by dividing (<divide>) the total earnings (excluding overtime) from the year immediately preceding the injury (A) by the number of weeks (or partial weeks) worked in that year (B): A <divide> B = Weekly Pay Rate.

(3) For intermittent, seasonal and on-call workers, whether permanent or temporary, who do not work either the same number of hours or every week of the year (or period of appointment), the weekly pay rate is the average weekly earnings established by dividing (<divide>) the total earnings during the full 12-month period immediately preceding the date of injury (excluding overtime) (A), by the number of weeks (or partial weeks) worked during that year (B) (that is, A <divide> B); or 150 times the average daily wage earned in the employment during the days employed within the full year immediately preceding the date of injury divided by 52 weeks, whichever is greater.

 One agency expressed concern with the retroactive election of COP in those cases OWCP terms ``short form closure'' cases, that is, cases where there is no wage loss claim and the medical bills do not exceed a certain dollar amount. In these cases, no formal acceptance is issued. The agency points out that in such cases, the wording in Sec. 10.206(a) should be revised to reflect this by adding the parenthetical clause``(if written approval is issued).''

Sec. 10.206 May an employee who uses leave after an injury later decide to use COP instead?

On Form CA-1, an employee may elect to use accumulated sick or annual leave, or leave advanced by the agency, instead of electing COP. The employee can change the election between leave and COP for prospective periods at any point while eligibility for COP remains. The employee may also change the election for past periods and request COP in lieu of leave already taken for the same period. In either situation, the following provisions apply:

(a) The request must be made to the employer within one year of the date the leave was used or the date of the written approval of the claim by OWCP (if written approval is issued), whichever is later.

Another labor organization objected to the change allowing the termination of COP when a personnel action--initiated before the injury and including a removal action--becomes final following the injury and during the COP period. No reason was offered for the objection, however, and the program believes that this clarification is necessary to ensure that employees who would otherwise not have received salary do not receive it merely because of the COP provisions.

Termination of COP regarding refusal of a written offer

An agency noted that Sec. 10.222(a)(3), regarding refusal of a written offer of suitable work, appears to change the current authority for an agency to stop COP. Such a change was not intended, and so new language has been added to this section which makes it clear that an agency can stop COP when an employee refuses a written offer of suitable work, but that OWCP has final authority to determine whether the termination was appropriate and can order retroactive restoration of COP benefits improperly terminated.

Sec. 10.222 When may an employer terminate COP which has already begun?

(3) Medical evidence from the treating physician shows that the employee is not totally disabled, and the employee refuses a written offer of a suitable alternative position which is approved by the attending physician. If OWCP later determines that the position was not suitable, OWCP will direct the employer to grant the employee COP retroactive to the termination date. 

There are no circumstances under which an agency can refuse to pay COP, except for those listed in Sec. 10.220 and Sec. 10.221

Sec. 10.220 When is an employer not required to pay COP?

An employer shall continue the regular pay of an eligible employee without a break in time for up to 45 calendar days, except when, and only when:

(a) The disability was not caused by a traumatic injury;

(b) The employee is not a citizen of the United States or Canada;

(c) No written claim was filed within 30 days from the date of injury;

(d) The injury was not reported until after employment has been terminated;

(e) The injury occurred off the employing agency's premises and was otherwise not within the performance of official duties;

(f) The injury was caused by the employee's willful misconduct, intent to injure or kill himself or herself or another person, or was proximately caused by intoxication by alcohol or illegal drugs; or

(g) Work did not stop until more than 30 days following the injury.

Sec. 10.221 How is a claim for COP controverted?

When the employer stops an employee's pay for one of the reasons cited in Sec. 10.220, the employer must controvert the claim for COP on Form CA-1, explaining in detail the basis for the refusal. The final determination on entitlement to COP always rests with OWCP.the existing rules direct agencies to retroactively reinstate COP which it had stopped because medical evidence showing disability had not been received within 10 days, when that medical report is received. The language has been added to Sec. 10.222(a)(1).

Sec. 10.222 When may an employer terminate COP which has already begun?

(a) Where the employer has continued the pay of the employee, it may be stopped only when at least one of the following circumstances is present:

(1) Medical evidence which on its face supports disability due to a work-related injury is not received within 10 calendar days after the claim is submitted (unless the employer's own investigation shows disability to exist). Where the medical evidence is later provided, however, COP shall be reinstated retroactive to the date of termination;

 Submitting medical evidence

Supporting disability must be submitted to the employer from 10 working days to 10 calendar days. This change was made because it is important to obtain this evidence as soon as possible. Using working days, which do not include Saturdays, Sundays and Federal government holidays, can easily result in a period of 15 or more calendar days elapsing before a medical report is received, a period during which the employee continues to be absent from work. OWCP has discussed the importance of early intervention, and the earlier the submittal, the better.

45-day maximum time frame for beginning to use COP

Sec. 10.205 What conditions must be met to receive COP?

(a) To be eligible for COP, a person must:

(1) Have a ``traumatic injury'' as defined at Sec. 10.5(ee) which is job-related and the cause of the disability, and/or the cause of lost time due to the need for medical examination and treatment;(2) File Form CA-1 within 30 days of the date of the injury (but if that form is not available, using another form would not alone preclude receipt); and

(3) Begin losing time from work due to the traumatic injury within 45 days of the injury.

(b) OWCP may find that the employee is not entitled to COP for other reasons consistent with the statute (see Sec. 10.220).

Qualifying to use COP:

Disability must either (1) begin within 30 days after the date of injury (Sec. 10.205(a)(3)); or (2) recur within 30 days after the first return to work (Sec. 10.207(c)).