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(3) bonus or premium pay for extraordinary service including bonus or pay for particularly hazardous service in time of war. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 540, amended Pub. L. 89-737, §1(1), Nov. 2, 1966, 80 Stat. 1164.)

88115. Determination of wage-earning capacity

(a) In determining compensation for partial disability, except permanent partial disability compensable under sections 8107-8109 of this title, the wage-earning capacity of an employee is determined by his actual earnings if his actual earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings of the employee do not fairly and reasonably represent his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity as appears reasonable under the circumstances is determined with due regard to(1) the nature of his injury;

(2) the degree of physical impairment;
(3) his usual employment;

(4) his age;

(5) his qualifications for other employment;
(6) the availability of suitable employment;

and

(7) other factors or circumstances which may affect his wageearning capacity in his disabled condition.

(b) Section 8114(d) of this title is applicable in determining the wage-earning capacity of an employee after the beginning of partial disability. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 542.)

§8116. Limitations on right to receive compensation

(a) While an employee is receiving compensation under this subchapter, or if he has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, he may not receive salary, pay, or remuneration of any type from the United States, except(1) in return for service actually performed;

(2) pension for service in the Army, Navy, or Air Force; (3) other benefits administered by the Veterans' Administration unless such benefits are payable for the same injury or the same death; and

(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed services, subject to the reduction of such pay in accordance with section 5532(b) of title 5, United States Code.

However, eligibility for or receipt of benefits under subchapter III of chapter 83 of this title, or another retirement system for employees of the Government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 (c) of this

title.

(b) An individual entitled to benefits under this subchapter because of his injury, or because of the death of an employee, who also is entitled to receive from the United States under a provision of statute other than this subchapter payments or benefits for that injury or death (except proceeds of an insurance policy), because of service by him (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits he will receive. The individual

shall make the election within 1 year after the injury or death or within a further time allowed for good cause by the Secretary of Labor. The election when made is irrevocable, except as otherwise provided by statute.

(c) The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statutes or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 542, amended Pub. L. 90-83; § 1(56), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93-416, § 9, Sept. 7, 1974, 88 Stat. 1145.)

§ 8117. Time of accrual of right

An employee is not entitled to compensation for the first 3 days of temporary disability, except

(1) when the disability exceeds 14 days;

(2) when the disability is followed by permanent disability; or (3) as provided by sections 8103 and 8104 of this title.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 543; amended Pub. L. 93–416, § 10, Sept. 7, 1974, 88 Stat. 1145.)

§ 8118. Continuation of pay; election to use annual or sick leave

(a) The United States shall authorize the continuation of pay of an employee, as defined in section 8101 (1) of this title (other than those referred to in clause (B) or (E)), who has filed a claim for a period of wage loss due to a traumatic injury with his immediate superior on a form approved by the Secretary of Labor within the time specified in section 8122 (a) (2) of this title.

(b) Continuation of pay under this subchapter shall be furnished(1) without a break in time unless controverted under regulations of the Secretary;

(2) for a period not to exceed 45 days; and

(3) under accounting procedures and such other regulations as the Secretary may require.

(c) An employee may use annual or sick leave to his credit at the time the disability begins, but his compensation for disability does not begin, and the time periods specified by section 8117 of this title do, not begin to run, until termination of pay as set forth in subsections (a) and (b) or the use of annual or sick leave ends.

(d) If a claim under subsection (a) is denied by the Secretary, payments under this section shall, at the option of the employee, be charged to sick or annual leave or shall be deemed overpayments of pay within the meaning of section 5584 of title 5, United States Code.

(e) Payments under this section shall not be considered as compensation as defined by section 8101 (12) of this title.

(Pub. 89-554, Sept. 6, 1966, 80 Stat. 543; amended Pub. L. 93-416, § 11, Sept. 7, 1974, 88 Stat. 1146.)

§8119. Notice of injury or death

An employee injured in the performance of his duty, or someone on his behalf, shall give notice thereof. Notice of a death believed to be related to the employment shall be given by an eligible beneficiary specified in section 8133 of this title, or somone on his behalf. A notice of injury or death shall

(a) be given within 30 days after the injury or death;

(b) be given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly stamped and addressed;

(c) be in writing;

(d) state the name and address of the employee;

(e) state the year, month, day, and hour when and the particular locality where the injury or death occurred;

(f) state the cause and nature of the injury, or, in the case of death, the employment factors believed to be the cause; and

(g) be signed by and contain the address of the individual giving the notice.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 543; amended Pub. L. 93-416, Sept. 7, 1974, 88 Stat. 1146.)

$8120. Report of injury

Immediately after an injury to an employee which results in his death or probable disability, his immediate superior shall report to the Secretary of Labor. The Secretary may

(1) prescribe the information that the report shall contain; (2) require the immediate superior to make supplemental reports; and

(3) obtain such additional reports and information from employees as are agreed on by the Secretary and the head of the employing agency.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 543.)

$8121. Claim

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Compensation under this subchapter may be allowed only if an individual or someone on his behalf makes claim therefor. The claim shall

(1) be made in writing within the time specified by section 8122 of this title;

(2) be delivered to the office of the Secretary of Labor or to an individual whom the Secretary may designate by regulation, or deposited in the mail properly stamped and addressed to the Secretary or his designee;

(3) be on a form approved by the Secretary;

(4) contain all information required by the Secretary;

(5) be sworn to by the individual entitled to compensation or someone on his behalf; and

(6) except in case of death, be accompanied by a certificate of the physician of the employee stating the nature of the injury and the nature and probable extent of the disability.

The Secretary may waive paragraphs (3)-(6) of this section for reasonable cause shown. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 543; amended Pub. L. 93-416, § 13, Sept. 7, 1974, 88 Stat. 1147.)

§ 8122. Time for making claim

(a) An original claim for compensation for disability or dea must be filed within 3 years after the injury or death. Compensati for disability or death, including medical care in disability cas may not be allowed if claim is not filed within that time unless

(1) the immediate superior had actual knowledge of the i jury or death within 30 days. The knowledge must be such put the immediate superior reasonably on notice of an on-the-j injury or death; or

(2) written notice of injury or death as specified in secti 8119 of this title was given within 30 days.

(b) In a case of latent disability, the time for filing claim does n begin to run until the employee has a compensable disability and aware, or by the exercise of reasonable diligence should have be aware, of the causal relationship of the compensable disability to employment. In such a case, the time for giving notice of injury begi to run when the employee is aware, or by the exercise of reasonab diligence should have been aware, that his condition is causally relat to his employment, whether or not there is a compensable disability. (c) The timely filing of a disability claim because of injury w satisfy the time requirements for a death claim based on the san injury.

(d) The time limitations in subsections (a) and (b) of this sectio do not

(1) begin to run against a minor until he reaches 21 years age or has had a legal representative appointed; or

(2) run against an incompetent individual while he is incomp tent and has no duly appointed legal representative; or

(3) run against any individual whose failure to comply excused by the Secretary on the ground that such notice coul not be given because of exceptional circumstances.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 544, amended Pub. L. 90-8 § 1(57), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93-416, § 14, Sept. 7, 197 88 Stat. 1147.)

§ 8123. Physical examinations

(a) An employee shall submit to examination by a medical office of the United States, or by a physician designated or approved by th Secretary of Labor, after the injury and as frequently and at the time and places as may be reasonably required. The employee may have physician designated and paid by him present to participate in th examination. If there is disagreement between the physician makin the examination for the United States and the physician of the em ployee, the Secretary shall appoint a third physician who shall mak an examination.

(b) An employee is entitled to be paid expenses incident to an ex amination required by the Secretary which in the opinion of the Sec retary are necessary and reasonable, including transportation and los of wages incurred in order to be examined. The expenses, when au thorized or approved by the Secretary, are paid from the Employees Compensation Fund.

(c) The Secretary shall fix the fees for examinations held under this section by physicians not employed by or under contract to the United States to furnish medical services to employees. The fees, when authorized or approved by the Secretary, are paid from the Employees' Compensation Fund.

(d) If an employee refuses to submit to or obstructs an examination, his right to compensation under this subchapter is suspended until the refusal or obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the period of the refusal or obstruction is deducted from the period for which compensation is payable to the employee. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 544.)

1 $8124. Findings and award; hearings

(a) The Secretary of Labor shall determine and make a finding of facts and make an award for or against payment of compensation under this subchapter after

for

(1) considering the claim presented by the beneficiary and the report furnished by the immediate superior; and

(2) completing such investigation as he considers necessary. (b) (1) Before review under section 8128 (a) of this title, a claimant compensation not satisfied with a decision of the Secretary under subsection (a) of this section is entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a representative of the Secretary. At the hearing, the claimant is entitled to present evidence in further support of his claim. Within 30 days after the hearing ends, the Secretary shall notify the claimant in writing of his further decision and any modifications of the award he may make and of the basis of his decision.

(2) In conducting the hearing, the representative of the Secretary is not bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by section 554 of this title except as provided by this subchapter, but may conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose, he shall receive such relevant evidence as the claimant adduces and such other evidence as he determines necessary or useful in evaluating the claim. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 545, amended Pub. L. 90-83, § 1(58), Sept. 11, 1967, 81 Stat. 210.)

8125. Misbehavior at proceedings

If an individual

(1) disobeys or resists a lawful order or process in proceedings under this subchapter before the Secretary of Labor or his representative; or

(2) misbehaves during a hearing or so near the place of hearing as to obstruct it;

the Secretary or his representative shall certify the facts to the district ourt having jurisdiction in the place where he is sitting. The court, in a summary manner, shall hear the evidence as to the acts complained of and if the evidence warrants, punish the individual in the same. manner and to the same extent as for a contempt committed before the court, or commit the individual on the same conditions as if the forbidden act had occurred with reference to the process of or in the presence of the court. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 545.)

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