vide for the disposition of the remains and incur, and cause payment from the employees' compensation fund of, such necessary transportation, funeral, and burial expenses as under the circumstances shall be reasonable. (As amended Feb. 12, 1927, ch. 110, § 4, 44 Stat. 1087; July 28, 1945, ch. 328, § 2, 59 Stat. 503; 1946 Reorg. Plan No. 2, § 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095; Oct. 14, 1949, ch. 691, Title I, § 107, 63 Stat. 860.)

Amendments.-Act Oct. 14, 1949, cited to text, amended section to increase payment of funeral expenses from $200 to $400.

Act July 28, 1945, cited to text, amended section by striking out "within six years" following "from the injury", and last sentence beginning "such funeral

expenses

Retroactive effect of 1949 amendment.-Section 303 (e) of Act Oct. 14, 1949, cited to text, provided that: "Section 107 of this Act, amending section 11 of the Federal Employees' Compensation Act [this section], shall apply only to deaths occurring after the enactment of this Act [Oct. 14, 1949].”’

Retroactive effect of 1945 amendment.-Subsec. (a) (2) of section 5 of Aet July 28, 1945, cited to text, provided: "The amendment in section 2 [Act July 28, 1945, cited to text] shall be applicable in any case of death following injury where the injury occurred prior to the date of approval of this Act [July 28, 1945] and the employee is receiving or is entitled to receive compensation for injury on or after such date."

Transfer of functions.-"Administrator" was substituted for "Commission' by the 1946 Reorg. Plan No. 2, § 3, cited to text. See note under section 778 of this title.

§762. Computation of monthly pay; elements of pay considered; method of computation.-(a) In computing monetary compensation for disability or death upon the basis of monthly pay, such pay shall be determined in accordance with the provisions of this section.

(b) The value of subsistence and quarters, and of any other form of remuneration in kind for services if its value can be estimated in money, shall be included as part of the pay. Overtime pay, or additional pay or allowance authorized outside the United States because of differential in cost of living or other special circumstance, or bonus or premium pay for extraordinary service (including amounts paid as bonus for particularly hazardous service in time of war) shall not be taken into account. The term "overtime pay," as used in this subsection, means pay for hours of service in excess of those of a statutory or other basic workweek, or other basic unit of work time. as observed by the establishment in which the employee is employed. (c) (1) The monthly pay at the time of injury shall be deemed to be one-twelfth of the employee's average annual earnings at that time, except that when compensation is paid upon a weekly basis, the weekly equivalent of such monthly pay shall be deemed to be one-fifty-second of such average annual earnings: Provided, That, for so much of the period of total disability as does not exceed ninety calendar days from the date of the beginning of compensable disability, the compensation may, in the discretion of the Administrator, be computed on the basis of the employee's actual daily wage at the time of injury and in that event he may be paid compensation for such days as he would have worked but for the injury.

(2) Average annual earnings shall be determined as follows:

(A) If the employee worked in the employment in which he was working at the time of his injury during substantially the whole of the year immediately preceding such injury, his average annual earnings

shall consist of the product obtained by multiplying his daily wage for the particular employment, or the average thereof if the daily wage has fluctuated, by three hundred if he was employed on the basis of a six-day workweek, two hundred and eighty if employed on the basis of a five-and-one-half-day week, and two hundred and sixty if employed on the basis of a five-day week, except that if the employment was in a position for which an annual rate of compensation was fixed, such average annual earnings shall consist of such annual rate of compensation.

(B) If the injured employee did not work in such employment during substantially the whole of such year, but the position was such as would have afforded employment for substantially a whole year, then the average annual earnings of such employee shall be equal to the average annual earnings of an employee of the same class working substantially the whole of such immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as determined in accordance with clause (A) of this subsection.

(C) If either of the foregoing methods of determining the average annual earnings of an injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in Federal employment, and of other employees of the United States in the same or most similar class working in the same or most similar employment in the same or neighboring locality, or to other previous employment of such employee, or to any other relevant factors, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury: Provided, That his average annual earnings shall consist of not less than one hundred and fifty times the average daily wage which he shall have earned in such employment during the days when so employed within the period of one year immediately preceding his injury.

(D) Such rules shall, so far as practicable, be also applied in the case of an employee serving without pay or at nominal pay: Provided, That (i) the average annual earnings of such employee shall in no event exceed the basic rate of annual compensation specified under the Classification Act of 1923, as amended, for positions in grade CAF-15 or P-8 at the bottom of such grade, and (ii) if his average annual earnings cannot reasonably and fairly be determined in the manner otherwise provided in this section, such average annual earnings shall be determined at the reasonable value of the service rendered but not in excess of $3,600 per annum.

(d) As used in this section the term "year" means a period of twelve calendar months, or the equivalent thereof as specified in regulations issued by the Administrator. (As amended Oct. 14, 1949, ch. 691, Title II, § 203, 63 Stat. 862.)

References in text.-The Classification Act of 1923, as amended, referred to in the text of subsection (b) is classified to sections 661–663, 664–669, 670–672, 673, and 674 of this title.

1949 amendment.-Act Oct. 14, 1949, cited to text, amended section generally to define the elements of pay to be considered and to regulate the method of computation.

Retroactive effect of 1949 amendment.-Section 303 (h) of Act Oct. 14, 1949,

cited to text, provided that: "The amendments made by sections 203 and 204 of this Act to sections 12 and 13 of the Federal Employees' Compensation Act [sections 762 and 763 of this title], pertaining to the determination of the employee's pay or his wage-earning capacity, may, in the interest of justice and in the discretion of the Administrator, be applied in any case, irrespective of the date of injury or death, so as to cause payments of compensation, with respect to any period not earlier than the first day of the first month after enactment of this Act [Oct. 14, 1949], to be consistent with such amendments."

§ 763. Determination of wage-earning capacity after injury.-(a) In the determination of an employee's wage-earning capacity after the beginning of partial disability, the rules specified in section 762 (b) of this title shall apply.

(b) The wage-earning capacity of an injured employee, in determining compensation for partial disability other than permanent partial disability compensable under section 755 of this title, shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings, or his actual earnings do not fairly and reasonably represent his wage-earning capacity, such wageearning capacity as shall appear reasonable under the circumstances of the case shall be determined, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition. (As amended Oct. 14, 1949, ch. 691, Title II, § 204, 63 Stat. 864.)

1949 amendment.-Act Oct. 14, 1949, cited to text, amended section generally to take into consideration in determining the wage-earning capacity after injury as were used to determine monthly compensation payments.

Retroactive effect of 1949 amendment.—Amendment by section 204 of Act Oct. 14, 1949, cited to text, to apply retroactively see note set out under section 762 of this title.

§ 764. Payment of lump sum; determination of amount.

Transfer of functions.-Commission and the words "it" or "its" whenever they refer to the commission were struck out and the Administrator and "he" or "his" were inserted in lieu thereof by Act Oct. 14, 1949, ch. 691, Title II, § 205(c) (1), 63 Stat. 864, to give effect to section 778 of this title.

The United States Employees' Compensation Commission was abolished and its functions transferred to the Federal Security Administrator by 1946 Reorg. Plan No. 2, 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095. See note under section 778 of this title.

§ 765. Notice of injury.

Cases brought under 1949 amendments.-Section 303 (f) (2) of Act Oct. 14, 1949, ch. 691, 63 Stat. 867, provided that: "The time limitations of the Federal Employees' Compensation Act with respect to the giving of notice of injury and the filing of a claim for compensation, in any case brought within the purview of section 40 of such Act by this Act [section 790 of this title], shall not begin to run until the date of enactment of this Act [Oct. 14, 1949]."'

§ 767. Same; failure to give.

Transfer of functions.-Commission and the words "it" or "its" whenever they refer to the commission were struck out and the Administrator and "he" or "his" were inserted in lieu thereof by Act Oct. 14, 1949, ch. 691, Title II, 205(c) (1), 63 Stat., to give effect to section 778 of this title.

The United States Employees' Compensation Commission was abolished and its functions transferred to the Federal Security Administrator by 1946 Reorg. Plan No. 2, 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095. See note under section 778 of this title.

§ 768. Written claim.

Words "this chapter" in line 1 of this section should read "sections 751-791 and 793 of this title."

Transfer of functions.-Commission and the words "it" or "its" whenever they refer to the commission were struck out and the Administrator and "he" or "his" were inserted in lieu thereof by Act Oct. 14, 1949, ch. 691, Title II, 205(c) (1), 63 Stat. - to give effect to section 778 of this title.

The United State Employees' Compensation Commission was abolished and its functions transferred to the Federal Security Administrator by 1946 Reorg. Plan No. 2, 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095. See note under section 778 of this title.

§ 769. Same; form and requisites; waiver.

Transfer of functions.-Commission and the words "it" or "its" whenever they refer to the commission were struck out and the Administrator and "he" or "his" were inserted in lieu thereof by Act Oct. 14, 1949, ch. 691, Title II, 205 (c) (1), 63 Stat., to give effect to section 778 of this title.

The United State Employees' Compensation Commission was abolished and its functions transferred to the Federal Security Administrator by 1946 Reorg. Plan No. 2, 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095. See note under section 778 of this title.

§ 770. Time for making claims.-All original claims for compensation for disability shall be made within sixty days after the injury. All original claims for compensation for death shall be made within one year after the death. For any reasonable cause shown the Administrator may allow original claims for compensation for disability to be made at any time within one year. Failure to give notice of injury or to file claim for compensation for disability or death within the time and in the manner prescribed by sections 751-791 and 793 of this title shall not bar the claim of any person thereunder if such claim is filed within five years after the injury or death and if the Administrator shall find (1) that such failure was due to circumstances beyond the control of the person claiming benefits, or (2) that such person has shown sufficient cause or reason in explanation thereof, and material prejudice to the interest of the United States has not resulted from such failure; and upon such finding the Administrator may waive compliance with the applicable provisions of sections 751791 and 793 of this title. (As amended July 28, 1945, ch. 328, § 1, 59 Stat. 503; 1946 Reorg. Plan No. 2, § 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095.)

Act July 28, 1945, cited to text, amended section by adding last sentence. Retroactive effect of 1945 amendment.-Subsec. (a) (1) of section 5 of Act July 28, 1945, cited to text, provided: "The amendment in section 1 of this Act [Act July 28, 1945, cited to text] shall apply to injury and death cases, whether or not reported or acted upon, where the injury (or injury causing death) occurred on or after December 7, 1940."'

Cases brought under 1949 amendments.-Section 303 (f) (2) of Act Oct. 14, 1949, ch. 691, 63 Stat., provided that: "The time limitations of the Federal Employees' Compensation Act with respect to the giving of notice of injury and the filing of a claim for compensation, in any case brought within the purview of section 40 of such Act by this Act [section 790 of this title], shall not begin to run until the date of enactment of this Act [Oct. 14, 1949].'

Transfer of functions.-"Administrator" was substituted for "Commission" by 1946 Reorg. Plan No. 2, § 3, cited to text. See note under section 778 of this title.

§ 771. Physical examinations; refusal to submit to.-After the injury, the employee shall, as frequently and at such times and places as may be reasonably required, submit himself to examination by a medical officer of the United States or by a duly qualified physician

designated or approved by the Administrator. The employee may have a duly qualified physician designated and paid by him present to participate in such examination. If the employee refuses to submit himself for or in any way obstructs any examination, his right to claim compensation under sections 751-791 and 793 of this title shall be suspended until such refusal or obstruction ceases. No compensation shall be payable while such refusal or obstruction continues, and the period of such refusal or obstruction shall be deducted from the period for which compensation is payable to him.

For any examination required by the Administrator the employee shall be paid all expenses incident to such examination which, in the opinion of the commission, are necessary and reasonable, including transportation and loss of wages incurred in order to submit to examination. All such expenses when authorized or approved by the Administrator shall be paid from the employees' compensation fund. (As amended June 26, 1926, ch. 695, § 2, 44 Stat. 772; 1946 Reorg. Plan No. 2, § 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095; Oct. 14, 1949, ch. 691, Title II, § 205 (c) (1), 63 Stat. -.)

Transfer of functions.-Commission and the words "it" or "its" whenever they refer to the commission were struck out and the Administrator and "he" or "his" were inserted in lieu thereof by Act Oct. 14, 1949, cited in text, to give effect to section 778 of this title.

"Administrator" was substituted for "Commission" by 1946 Reorg. Plan No. 23, cited to text. See note under section 778 of this title.

§ 772. Same; disagreement between physicians.

Transfer of functions.-Commission and the words "it" or "its" whenever they refer to the commission were struck out and the Administrator and "he" or "his" were inserted in lieu thereof by Act Oct. 14, 1949, ch. 691, Title II, 205(c) (1), 63 Stat., to give effect to section 778 of this title.

The United States Employees' Compensation Commission was abolished and its functions transferred to the Federal Security Administrator by 1946 Reorg. Plan No. 2, 3, eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095. See note under section 778 of this title.

§ 773. Physicians' and attorneys' fees.--(a) Fees or examinations made on the part of the United States under sections 771 and 772 of this title by physicians who are not officers or employees of the United States and not under contract to the United States to render medical services to its employees shall be fixed by the Administrator. Such fees, and any sum payable to the employee under section 771 of this title, which authorized or approved by the Administrator, shall be paid from the Employees' Compensation Fund.

(b) A claimant may be represented before the Administrator in any proceeding under sections 751-756, 757-791, and 793 of this title by any person duly authorized by such claimant. No claim for legal services or for any other services rendered in respect of a case, claim, or award for compensation under said sections, to or on account of any person, shall be valid unless approved by the Administrator. Any person who receives any fee or other consideration, or any gratuity on account of services so rendered, unless such fee, consideration, or gratuity, is so approved, or who solicits employment for himself or another in respect of any case, claim, or award for compensation under (or to be brought under) said sections shall be guilty of a misdemeanor and upon conviction thereof shall, for each offense, be punished by a