5 U.S.C. § 8124 — Findings and award; hearings

Page 945 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8124 agreement between the physician making the examination for the United States and the phy- sician of the employee, the Secretary shall ap- point a third physician who shall make an ex- amination. (b) An employee is entitled to be paid expenses incident to an examination required by the Sec- retary which in the opinion of the Secretary are necessary and reasonable, including transpor- tation and loss of wages incurred in order to be examined. The expenses, when authorized or ap- proved by the Secretary, are paid from the Em- ployees’ Compensation Fund. (c) The Secretary shall fix the fees for exami- nations 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’ Com- pensation Fund. (d) If an employee refuses to submit to or ob- structs an examination, his right to compensa- tion 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 ob- struction is deducted from the period for which compensation is payable to the employee. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 544.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 771. Sept. 7, 1916, ch. 458, § 21, 39 Stat. 747. June 26, 1926, ch. 695, § 2, 44 Stat. 772. .................. 5 U.S.C. 772. Sept. 7, 1916, ch. 458, § 22, 39 Stat. 747. .................. 5 U.S.C. 773(a). Sept. 7, 1916, ch. 458, § 23, 39 Stat. 747. June 26, 1926, ch. 695, § 3, 44 Stat. 772. Oct. 14, 1949, ch. 691, § 208 ‘‘Sec. 23(a)’’, 63 Stat. 865. In subsections (a) and (c), the words ‘‘duly qualified’’ in former sections 771 and 772 are omitted as unneces- sary in view of the definition of ‘‘physician’’ in section 8101. In subsection (c) the words ‘‘fees for examinations’’ in former section 773(a) are substituted for ‘‘fees or exami- nations’’ since the word ‘‘or’’ was erroneously in the 1949 amendment. The words ‘‘any sum payable to the employee under section 771 of this title’’ in former sec- tion 773(a) are omitted as unnecessary because the same provision appeared in former section 771, which is carried into subsection (b). Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 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— (1) considering the claim presented by the beneficiary and the report furnished by the immediate superior; and (2) completing such investigation as he con- siders necessary. (b)(1) Before review under section 8128(a) of this title, a claimant for compensation not sat- isfied with a decision of the Secretary under subsection (a) of this section is entitled, on re- quest 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 Sec- retary 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 deci- sion. (2) In conducting the hearing, the representa- tive 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 evi- dence 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; Pub. L. 90–83, § 1(58), Sept. 11, 1967, 81 Stat. 210.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 786. Sept. 7, 1916, ch. 458, § 36, 39 Stat. 749. The last sentence of former section 786 is omitted as surplusage because it is covered by section 8147. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. 1967 ACT Section of title 5 Source (U.S. Code) Source (Statutes at Large) 8124(b) ....... 5 App.: 786(b). July 4, 1966, Pub. L. 89–488, § 11(b), 80 Stat. 255. In subsection (b)(1), the words ‘‘section 8128(a) of this title’’ are substituted for ‘‘section 37’’ to reflect the codification of section 37 in title 5, United States Code. The words ‘‘a claimant * * * is entitled * * * to a hear- ing’’ are substituted for ‘‘any claimant * * * shall * * * be afforded an opportunity for a hearing’’. The words ‘‘under subsection (a) of this section’’ are substituted for ‘‘under this section’’ for clarity. In the second sen- tence, the words ‘‘is entitled to present evidence’’ are substituted for ‘‘shall be afforded an opportunity to present evidence’’. In subsection (b)(2), the words ‘‘section 554 of this title * * * this subchapter’’ are substituted for ‘‘section 5 of the Administrative Procedure Act * * * this Act’’ to reflect the codification of the cited section and act in title 5. In the second sentence, the words ‘‘shall, in addition, receive’’ are omitted as unnecessary. Statutory Notes and Related Subsidiaries PERSONNEL NOT AFFECTED BY 1967 INCREASE Increases authorized under amendment by section 1(58) of Pub. L. 90–83 not applicable to specified per- sonnel, see section 7 of Pub. L. 90–83, set out as a note under section 8103 of this title. Page 946 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8125 § 8125. Misbehavior at proceedings If an individual— (1) disobeys or resists a lawful order or proc- ess in proceedings under this subchapter be- fore the Secretary of Labor or his representa- tive; 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 court having jurisdic- tion 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 con- tempt 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.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 773(c). Oct. 14, 1949, ch. 691, § 208 ‘‘Sec. 23(c)’’, 63 Stat. 865. The words ‘‘the district court of the United States for the District of Columbia’’ are omitted as included in ‘‘district court’’. The words ‘‘under this subchapter’’ are added for clarity since this section which was for- merly a subsection referred to the subsection preceding it which identified the proceedings. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 8126. Subpenas; oaths; examination of witnesses The Secretary of Labor, on any matter within his jurisdiction under this subchapter, may— (1) issue subpenas for and compel the attend- ance of witnesses within a radius of 100 miles; (2) administer oaths; (3) examine witnesses; and (4) require the production of books, papers, documents, and other evidence. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 780. Sept. 7, 1916, ch. 458, § 29, 39 Stat. 748. Oct. 14, 1949, ch. 691, § 205(c)(2), 63 Stat. 864. The words ‘‘under this subchapter’’ are added to pre- serve the original grant of power in the Act of Sept. 7, 1916. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 8127. Representation; attorneys’ fees (a) A claimant may authorize an individual to represent him in any proceeding under this sub- chapter before the Secretary of Labor. (b) A claim for legal or other services fur- nished in respect to a case, claim, or award for compensation under this subchapter is valid only if approved by the Secretary. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 773(b) (less last sentence). Oct. 14, 1949, ch. 691, § 208 ‘‘Sec. 23(b) (less last sen- tence)’’, 63 Stat. 865. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 8128. Review of award (a) The Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on applica- tion. The Secretary, in accordance with the facts found on review, may— (1) end, decrease, or increase the compensa- tion previously awarded; or (2) award compensation previously refused or discontinued. (b) The action of the Secretary or his designee in allowing or denying a payment under this subchapter is— (1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by man- damus or otherwise. Credit shall be allowed in the accounts of a cer- tifying or disbursing official for payments in ac- cordance with that action. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large (a) ............. 5 U.S.C. 787. Sept. 7, 1916, ch. 458, § 37, 39 Stat. 749. June 5, 1924, ch. 261, § 1, 43 Stat. 389. (b) ............. 5 U.S.C. 793 (penul- timate sentence of 5th par.). July 28, 1945, ch. 328, § 4 (pe- nultimate sentence), 59 Stat. 504. In subsection (a), the words ‘‘If the original claim for compensation has been made within the time specified in section 770 of this title’’ are omitted as surplusage. The words ‘‘an award for or against payment of com- pensation’’ are coextensive with and, for clarity and consistency with section 8124, substituted for ‘‘the award’’. The second sentence of former section 787 is omitted as included in the penultimate sentence of former section 793, which is carried into subsection (b). The last sentence of former section 787 is omitted as ex- ecuted. In subsection (b), the word ‘‘official’’ is substituted for ‘‘officer’’ because of the definition of ‘‘officer’’ in section 2104 which excludes a member of a uniformed service. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145).