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5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 10-2009, 74 FR 58834.
71 FR 78534, Dec. 29, 2006, unless otherwise noted.
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Years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a Department of Energy facility or a RECA section 5 facility, as appropriate, may be compensable under Part E of the Act. Whether years of wage-loss are compensable depends on determinations with respect to:
(a) The average annual wage of the employee as determined by OWCP in accordance with § 30.810;
(b) The percentage of his or her average annual wage that the employee was able to earn during the calendar year(s) in question as determined by OWCP in accordance with § 30.811; and
(c) Whether the employee's inability to earn at least as much as his or her average annual wage was due to a covered illness as defined in § 30.5(s).
[71 FR 78534, Dec. 29, 2006, as amended at 84 FR 3059, Feb. 8, 2019]
For the purposes of paying compensation based on wage-loss under Part E of the Act, OWCP will apply the following definitions:
(a) Average annual wage means 12 times the average monthly wage of a covered Part E employee for the 36 months preceding the month during which he or she first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility (referred to as the “trigger month”), excluding any months during which the employee was unemployed. Because being “retired” is not equivalent to being “unemployed,” months during which an employee had no wages because he or she was retired will not be excluded from this calculation.
(b) Normal retirement age means the age at which a covered Part E employee first became eligible for unreduced retirement benefits under the Old-Age, Survivors and Disability Insurance (OASDI) provisions of the Social Security Act. In general, persons born during or before 1937 are eligible for unreduced OASDI retirement benefits at age 65, and that age increases in monthly increments until it reaches 67, which is the age at which persons born during or after 1960 become eligible for unreduced OASDI retirement benefits.
(c) Month during which the employee was unemployed means any month during which the covered Part E employee had $250 (in constant 2013 dollars) or less in wages unless the month is one during which the employee was retired.
(d) Quarter means the three-month period January through March, April through June, July through September, or October through December.
(e) Quarter during which the employee was unemployed means any quarter during which the covered Part E employee had $750 (in constant 2013 dollars) or less in wages unless the quarter is one during which the employee was retired.
(f) Trigger month means the calendar month during which the employee first experienced a loss in wages due to exposure to a toxic substance at a DOE facility or RECA section 5 facility.
(g) Wages mean all monetary payments that the covered Part E employee earns from his or her regular employment or services that are taxed as income by the Internal Revenue Service. Salaries, overtime compensation, sick leave, vacation leave, tips, and bonuses received for employment services are considered wages under this subpart. However, capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers' compensation benefits, medical retirement benefits, and Social Security benefits are not considered wages.
(h) Year of wage-loss means a calendar year during which the covered Part E employee's earnings were less than his or her average annual wage, after such earnings have been adjusted using the Consumer Price Index for All Urban Consumers (CPI-U), as produced by the Bureau of Labor Statistics, to reflect their value in the year during which the employee first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility.
[71 FR 78534, Dec. 29, 2006, as amended at 84 FR 3059, Feb. 8, 2019]