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| Compensation payable in death cases Section 10.410 One labor organization requested that OWCP restore the partial description of the compensation payable in death cases that was set out at Sec. 10.306 of the 1987 regulations (the organization was apparently unaware that the FECA was amended in 1990 to change the age of remarriage noted in section 8133(b)(1) to 55). Since the proposed rule was published in the Federal Register on December 23, 1997, the ECAB issued a decision construing section 8133(a)(5) of the FECA for the first time. That decision is Clyde Stevenson (Donna R. Stevenson), Docket No. 95-3016 (issued February 4, 1998). In light of the authoritative construction of this section of the FECA provided by the ECAB in Stevenson, and to address the concerns of the labor organization, the heading and text of Sec. 10.410 are revised consistent with the request. Sec. 10.410 Who is entitled to compensation in case of death, and what are the rates of compensation payable in death cases? (a) If there is no child entitled to compensation, the employee's surviving spouse will receive compensation equal to 50 percent of the employee's monthly pay until death or remarriage before reaching age 55. Upon remarriage, the surviving spouse will be paid a lump sum equal to 24 times the monthly compensation payment (excluding compensation payable on account of another individual) to which the surviving spousewas entitled immediately before the remarriage. If remarriage occurs at age 55 or older, the lump-sum payment will not be paid and compensation will continue until death. (b) If there is a child entitled to compensation, the compensation for the surviving spouse will equal 45 percent of the employee's monthly pay plus 15 percent for each child, but the total percentage may not exceed 75 percent. (c) If there is a child entitled to compensation and no surviving spouse, compensation for one child will equal 40 percent of the employee's monthly pay. Fifteen percent will be awarded for each additional child, not to exceed 75 percent, the total amount to be shared equally among all children. (d) If there is no child or surviving spouse entitled to compensation, the parents will receive compensation equal to 25 percent of the employee's monthly pay if one parent was wholly dependent on the employee at the time of death and the other was not dependent to any extent, or 20 percent each if both were wholly dependent on the employee, or a proportionate amount in the discretion of the Director if one or both were partially dependent on the employee. If there is a child or surviving spouse entitled to compensation, the parents will receive so much of the compensation described in the preceding sentence as, when added to the total percentages payable to the surviving spouse and children, will not exceed a total of 75 percent of the employee's monthly pay. (e) If there is no child, surviving spouse or dependent parent entitled to compensation, the brothers, sisters, grandparents and grandchildren will receive compensation equal to 20 percent of the employee's monthly pay to such dependent if one was wholly dependent on the employee at the time of death; or 30 percent if more than one was wholly dependent, divided among such dependents equally; or 10 percent if no one was wholly dependent but one or more was partly dependent, divided among such dependents equally. If there is a child, surviving spouse or dependent parent entitled to compensation, the brothers, sisters, grandparents and grandchildren will receive so much of the compensation described in the preceding sentence as, when added to the total percentages payable to the children, surviving spouse and dependent parents, will not exceed a total of 75 percent of the employee's monthly pay. (f) A child, brother, sister or grandchild may be entitled to receive death benefits until death, marriage, or reaching age 18. Regarding entitlement after reaching age 18, refer to Sec. 10.417 of these regulations. The organization also asked what
provision of the FECA bars a claim for disability which is not filed while the employee is
alive. In Anna Palestro (Vincent Palestro), 15 ECAB 241 (1964), the Employees'
Compensation Appeals Board established that an individual must be alive to claim benefits
for disability. The only provision for payments to carry over from a disability claim
after death is found in section 8109 |
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