Division of Federal Employees' Compensation (DFEC)
Part 2 of the Procedure Manual has been divided into groups to make it easier for you to search and find the information you are looking for.
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06/97 |
97-12 |
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97-12 |
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20-05 |
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Back to Chapter 2-1600 Table of Contents
1. Purpose and Scope. This chapter outlines the appeal rights of claimants who have been issued formal decisions by OWCP. These rights include hearing, reconsideration, and review by the Employees' Compensation Appeals Board (ECAB). This chapter summarizes the authority, responsibilities and definitions which apply generally to hearings, reconsiderations and appeals.
Applications for hearings are processed by the Branch of Hearings and Review within the National Office, and the applicable procedures are discussed in Chapter 2-1601. Applications for reconsideration are handled by Claims Office personnel as outlined in Chapter 2-1602. Applications for review by the ECAB, which is an entirely separate entity from OWCP within the Department of Labor, are discussed in Chapter 2-1603.
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2. Authority.
a. Decision. 5 U.S.C. 8124(a) provides that the Director of the OWCP, under delegation from the Secretary of Labor, shall determine and make a finding of facts and make an award for or against payment of compensation after:
(1) Considering the claim presented by the beneficiary and the report submitted by the immediate superior; and
(2) Completing such investigation as is considered necessary. In this connection, see FECA PM 2-1400.
b. Hearing. Section 5 U.S.C. 8124(b) states that a claimant not satisfied with a formal decision is entitled to a hearing by an OWCP representative if the request is made within 30 days of the date of the decision. This provision, which applies to injuries occurring on and after July 4, 1966, includes the stipulation that any such request must be made before reconsideration under Section 5 U.S.C. 8128(a) is undertaken.
Apart from the hearing provided under 5 U.S.C. 8124(b), OWCP also provides the opportunity for an oral pre-recoupment hearing on the issues of fault and waiver, to anyone who is notified of an overpayment of benefits and requests a hearing within 30 days. See FECA PM Part 6.
c. Reconsideration. Section 5 U.S.C. 8128(a) provides that OWCP may review and reconsider an award for or against payment of compensation at any time on the Director's own motion or on application from the claimant and may:
(1) End, decrease, or increase the compensation previously awarded; or
(2) Award compensation previously refused or discontinued.
d. Appeal. Effective July 14, 1946, the ECAB was established by Federal Security Order No. 58 and given "all necessary and appropriate powers" to hear and decide appeals taken from determinations made in claims filed under the FECA. The ECAB and its function were transferred to the Department of Labor by Reorganization Plan No. 19 of 1950 (39 Stat. 742). Formal decisions of OWCP, except decisions concerning the amounts payable for medical services and decisions concerning exclusion and reinstatement of medical providers, are subject to review by the ECAB (20 C.F.R. 10.137).
e. Finality of Review. Section 5 U.S.C. 8128 provides that the action of the OWCP in allowing or denying a payment under the FECA is:
(1) Final and conclusive for all purposes and with respect to questions of law and fact; and
(2) Not subject to review by another official of the United States or by a court of mandamus or otherwise. (OWCP is required, however, to respond to any writs of mandamus which may be issued. Such writs direct that action be taken within a specified period of time without directing the particular action to be taken.)
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3. Definitions.
a. Claimant. This term includes any individual who has applied directly for benefits under the FECA. Attorneys, physicians, and other parties who have provided services or supplies to an individual applying for such benefits are not claimants within the meaning of the FECA.
b. Application. This term includes any written communication from a claimant or representative which requests a hearing, reconsideration or appeal of a formal decision; no special form is necessary.
(1) A claimant who expresses or implies disagreement with a formal decision without requesting a specific action should be advised of the basis of the decision and reminded to exercise rights of appeal if further action is desired.
(2) Any file in which a complaint about a formal decision is received should be reviewed informally to assess whether the action leading to the complaint was correct. The CE should determine through correspondence with the claimant whether the inquiry in effect constitutes a request for exercise of appeal rights.
c. Formal Decision. Chapter 2-1400 discusses disallowances in detail. To be considered a formal decision, any notice of decision or compensation order must:
(1) Notify the claimant of the action and the reasons for it;
(2) Comply with the statutory requirements of 5 U.S.C. 8124(a); and
(3) Be released at the appropriate level of authority.
All notices of decision, compensation orders, Letters CA-1048, CA-1066, and CA-1050, and Forms CA-180 and CA-181 are considered formal decisions on claims for monetary compensation, and may be appealed. Letters or compensation orders denying review of a prior decision, or denying modification of a prior decision, may be appealed to the Employees' Compensation Appeals Board. The office must notify the claimant in each case of his or her further rights.
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4. Order and Number of Appeals. Appeals may be requested in any order, except that a hearing may not be held after the case has been reconsidered. There is no limit to the number of times a claimant may request reconsideration and submit additional evidence.
In providing information to claimants concerning their rights, the CE should refrain from suggesting that one form of appeal is appropriate in a given case, either as part of the decision or in any later conversation or correspondence.
Back to Chapter 2-1600 Table of Contents
| Paragraph and Subject | Date | Trans. No. |
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| Table of Contents | 09/20 | 20-05 |
| 1. Purpose and Scope | 10/11 | 12-02 |
| 2. Policy | 02/24 | 24-04 |
| 3. Applications | 09/20 | 20-05 |
| 4. Initial Review of the Case | 02/24 | 24-04 |
| 5. Review of the Written Record | 02/24 | 24-04 |
| 6. Arranging for Hearings | 09/20 | 20-05 |
| 7. Conduct of Hearings | 02/24 | 24-04 |
| 8. Reaching a Determination | 02/24 | 24-04 |
| 9. Claims Office Actions | 02/24 | 24-04 |
Back to Chapter 2-1601 Table of Contents
1. Purpose and Scope. This chapter describes the processing of requests for hearings. The procedures include review of the case file, arrangements for the hearing, conduct of the hearing, and issuance of the decision. Additionally, procedures are described for handling requests for review of the written record. These functions, along with pre-recoupment hearings in overpayment cases (see FECA PM Part 6), are the responsibility of the Branch of Hearings and Review (H&R) within DFELHWC's National Office.
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2. Policy. This paragraph describes the scope of claimants' entitlement to hearings and reviews of the written record.
a. Right to a Hearing. Where the injury or death occurred on or after July 4, 1966, the claimant is entitled to a hearing before an Office representative after a final decision and before reconsideration under Section 5 U.S.C. 8128. For injuries or diseases prior to that date, the Employees' Compensation Appeals Board (ECAB) has ruled that claimants are not entitled to a hearing as a matter of right but that the OWCP has the discretionary authority to grant a claimant's request for a hearing regardless of the date of injury or death (See R.L., Docket No. 15-1481 (2015). A claimant is also entitled to a pre-recoupment hearing following a preliminary determination that an overpayment of compensation has occurred. However, the claimant is not entitled to a hearing under 5 U.S.C. 8124(b) after a final decision concerning an overpayment is issued.
b. Right to a Review of the Written Record. In place of an oral hearing, a claimant is entitled to a review of the written record (subsequently referred to as "review") by an Office representative. Such review will not involve oral testimony or attendance by the claimant, but the claimant may submit any written evidence or argument deemed relevant.
c. Issues for Consideration. The hearing or review will usually be limited to those issues which were addressed by the claims office (Office) in the contested decision. Other issues may be addressed at the discretion of the Office representative.
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3. Applications. Requests for hearings and reviews should be mailed directly to the appropriate address clearly outlined in the appeal rights provided to claimants. Claimants may also electronically file their hearing request via ECOMP, an OWCP-hosted free web-based application.
While all requests should be directed to H&R, some improperly indexed may be received in the case file. They should be handled as follows:
a. Central Mail Room (CMR). When the request for a hearing or review is sent to CMR, the envelope and request will be scanned into the case file.
b. Claims File and/or ECOMP. If a request is received in the case file and was not properly indexed as a request for hearing or review, H&R shall be notified as soon as possible so that an H&R record can be created and the request can be tracked. The Office should notify H&R by advising the Branch Chief and Assistant Chief via e-mail of the untracked hearing request.
c. Acknowledgment. H&R will acknowledge receipt of the request by computer-generated letter, providing the claimant and representative of general information about the hearing process.
d. Assignments. The Branch will assign multiple pending appeals on the same case to the same Hearing Representative for efficiency and consistency in handling.
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4. Initial Review of the Case. Upon receipt of the hearing or review request, H&R staff will review it to determine whether a reconsideration preceded the request for a hearing or review, whether the request is timely, whether all necessary evidence is on record, and, if so, whether it supports the decision of the Office.
a. Timeliness. The request is timely if it was mailed (as determined by the postmark or other carrier's date marking) or received in ECOMP within 30 days of the date of the office's decision. 20 C.F.R. § 10.616. If the postmark is not legible, the request will be deemed timely unless the Office has kept evidence of date of delivery on the record reflecting that the request is untimely. In cases where the instructions on the appeal rights that accompanied the decision were not followed and the hearing request was received by ECAB and then forwarded to H&R, H&R will review the available evidence and determine the timeliness of the request.
b. Simultaneous ECAB Appeal. Only one avenue of appeal per decision on a particular issue can be pursued at one time. See S.K., Docket No. 20-1049 (2021). In instances where a claimant requests a hearing or review through H&R and the ECAB on the same issue simultaneously, the Board will take precedence and have jurisdiction over the issue. In these cases, the Hearing Representative will contact the claimant and inform them (and authorized representative, if applicable) that H&R is precluded from reviewing the issue currently before the Board. If the claimant wishes to proceed through H&R, they will have to contact the Board and request to withdraw the appeal. Once the Board has accepted the withdrawal request and dismissed the appeal, H&R will proceed with the review or the hearing. The Hearing Representative will document all communications relating to these instances in the record.
c. Entitlement.
(1) Hearing. If preliminary study shows that the decision was reached in accordance with established policies and is supported by the evidence of record, the case will be scheduled for a hearing as described in paragraph 6 below. If a review has been requested, the procedures described in paragraph 5 below will be followed.
Note on Claimants Requiring Reasonable Accommodations: In the event that the case record contains a purple border, the Branch will arrange for the documented communication assistance. In some instances the communication assistance provided by the Office (such as email) before the hearing may not be effective in terms of claimant/other participation in the hearing; it may then be necessary to consult with the claimant prior to the hearing to arrive at an effective communication aid or service /accommodation for the hearing. In the event a qualified sign language interpreter is documented in the file as the requested communication assistance, the Branch will arrange for that assistance when scheduling the hearing. No additional request is necessary.
(2) Remand. If the decision is not supported by the evidence of record, or if new evidence warrants it, H&R will prepare a remand order setting the office decision aside. This order will include the reasons for the decision to remand and will outline the further action needed. A formal decision vacating the contested decision and a cover letter will also be prepared.
(3) Reverse. If the decision is not supported by the evidence of record, or if new evidence warrants it, H&R will prepare a reversal order setting aside the office decision. This order will include the reasons for the decision to reverse and will outline the further action needed. A formal decision reversing the contested decision and a cover letter will also be prepared.
(4) Remands/Reversals Before Hearing. Examples of issues that may be in posture for remand/reversal before hearing include:
a. Primary Adjudication cases denied on Fact of Injury Medical or Causal Relationship, and sufficient medical documentation is presented upon initial review of the file or the Office’s decision was clearly incorrect.
b. Schedule Award denials for no evidence of impairment, and an impairment rating is presented upon initial review of the file or the Office’s decision was clearly incorrect.
c. Wage loss denials, and sufficient medical documentation is presented upon initial review of the file or the Office’s decision was clearly incorrect.
d. Termination decisions, and sufficient medical documentation is presented upon initial review of the file or the Office’s decision was clearly incorrect.
e. Expansion/Consequential Claim denials, and sufficient medical documentation is presented upon initial review of the file or the Office’s decision was clearly incorrect.
(5) Upon initial review of the file and hearing request, if the evidence needed to reverse or remand a claim can be obtained through telephonic communication, the Hearing Representative may attempt to contact the claimant, employing agency, and/or authorized representative by telephone conference to obtain the documentation needed. This record of the telephone call and information discussed should be documented in the case file via CA-110.
(6) Examples of cases where proactive telephone contact is appropriate include:
a. Fact of Injury (Factual) issues where the description of injury is vague or general, or there is a minor discrepancy between the date of injury annotated on the form and the date referenced in the medical evidence, and there is no dispute or challenge from the employing agency.
b. Clear-cut traumatic injury claims where an affirmative statement on causal relationship is lacking.
c. Performance of Duty denials where a simple supplemental statement may clarify the issue.
d. Any decision where medical documentation is not countersigned by a licensed physician.
(7) If the evidence needed to reverse the case is in the file after the initial review but prior to the scheduled hearing, the Hearing Representative will follow the Summary Decision procedures in paragraph 7(f) below.
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5. Review of the Written Record. This paragraph discusses the steps involved in processing requests for review of the written record. Initial review of the request will follow the procedures described in paragraph 4(a)(b) above.
a. Entitlement.
(1) Formal Review. If preliminary study shows that the decision was reached in accordance with established policies and is supported by the evidence of record, the case will proceed to a formal review. H&R will furnish the employing agency with a copy of the claimant's request for review of the written record, together with any pertinent factual documentation submitted. (Medical evidence is not considered "pertinent" for review and comment by the agency and will therefore not be furnished to the agency. The OWCP has sole responsibility for evaluating medical evidence.)
a. The agency will be allowed 20 days to submit any comments and/or documents believed relevant and material to the issue in question. H&R will furnish any comments or documents submitted by the agency to the claimant and allow 20 days for review and comment by the claimant. 20 C.F.R. § 10.618(b).
b. Following a review of the record and any evidence submitted, the Hearing Representative and/or Special Claims Examiner shall decide the claim and inform the claimant, the claimant's representative, and the employing agency of the decision. Appeal rights will be attached to any adverse decision.
(2) Remand. If the decision is not supported by the evidence of record, or if new evidence warrants it, H&R will prepare a remand order setting the office decision aside. This order will include the reasons for the decision to remand and will outline the further action needed. A formal decision vacating the contested decision and a cover letter will also be prepared.
(3) Reverse. If the decision is not supported by the evidence of record, or if new evidence warrants it, H&R will prepare a reversal order setting the office decision aside. This order will include the reasons for the decision to reverse and will outline the further action needed. A formal decision reversing the contested decision and a cover letter will also be prepared.
(4) Remands/Reversals Before Formal Review. Issues that may be in posture for remand/reversal before a formal review is conducted are similar to the examples outlined in paragraph 4(c)(4) above.
(5) Upon initial review of the file and hearing request, if the evidence needed to reverse or remand a claim can be obtained through telephonic communication, the Hearing Representative may attempt to contact the claimant, employing agency and/or authorized representative by telephone conference to obtain the documentation needed. This record of the telephone call and information discussed should be documented in the case file via CA-110.
(6) Examples of cases where proactive telephone contact is appropriate are outlined in paragraph 4c(6) above.
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6. Arranging for Hearings. This paragraph addresses the steps involved in arranging for a hearing and discusses some of the issues which may arise in obtaining evidence.
a. OWCP Discretion. For timeliness and efficiency, all hearings will be scheduled by teleconference by default unless it is determined that it is necessary that a hearing be conducted in person or via videoconference (or other electronic means). Reasons that would necessitate scheduling a hearing by means other than a teleconference include:
(1) A reasonable accommodation request for which an in-person or videoconference hearing is required.
(2) A request by the claimant or authorized representative, including evidence and/or argument that supports that an in-person or videoconference hearing is critical to ascertain the facts of the case and supporting why a teleconference would not serve the interests of justice.
(3) If the hearing representative determines that an in person or videoconference would allow the hearing representative to better assess the merits of the claim including the credibility of witnesses.
If a hearing will not be conducted telephonically, the hearing representative will mail a notice that reflects the format of the hearing.
b. Scheduling. A written notice specifying the exact date, time, format, and place for the hearing will be mailed at least 30 days prior to the scheduled hearing. The claimant, the claimant's authorized representative, and the employing agency will be provided with such written notice.
In instances where a claimant requests an appeal through H&R and the ECAB simultaneously, the Hearing Representative will advise all parties that although a hearing will be scheduled, if the Board does not release the case prior to the hearing date, said hearing will be cancelled and rescheduled once the Board releases the record.
c. Employing Agency Participation. When the hearing is scheduled, the employing agency will be advised that its representative may be present at the proceedings and/or receive a copy of the hearing transcript. The agency may, in the discretion of the Hearing Representative, send more than one representative. 20 C.F.R. § 10.621(a). Agency representatives attend primarily as observers and may not participate in the hearing unless the claimant or the Hearing Representative specifically requests them to do so. A notice to the employing agency will accompany the agency's copy of the letter to the claimant scheduling the hearing.
d. Record of the Hearing. H&R will arrange to record the testimony provided at the hearing, and it will then be transcribed. The transcript of the hearing is the official record of the hearing. (20 C.F.R. § 10.616(d)). Audiovisual coverage of hearings is not permitted, and claimants may not use their own recording equipment.
e. Withdrawal of Hearing Requests. The claimant may withdraw the request for hearing at any time by written notice, or on the record at the hearing. If the request is withdrawn, no further requests for a hearing on the decision at issue will be considered.
f. Postponement of Hearing Requests. Once an oral hearing is scheduled and H&R has mailed appropriate written notice to the claimant and representative, H&R will, upon submission of proper written documentation of unavoidable serious scheduling conflicts (such as court-ordered appearances/trials, jury duty, or previously scheduled outpatient procedures), entertain requests from a claimant or his representative for rescheduling as long as the hearing can be rescheduled on the same monthly docket, generally no more than 7 days after the originally scheduled time. In these instances, rescheduled hearings will usually be held via teleconference, and the Hearing Representative will ensure that the file accurately reflects any action taken to reschedule the hearing. When a request to postpone a scheduled hearing cannot be accommodated on the docket, no further opportunity for an oral hearing will be provided. Instead, the hearing will take the form of a review of the written record and a decision issued accordingly. 20 C.F.R. §10.622(c).
Where the claimant or representative is hospitalized for a non-elective reason, or where the death of the claimant's or representative's parent, spouse, child, or other immediate family member prevents attendance at the hearing, the OWCP will, upon submission of proper documentation, grant a postponement beyond one monthly docket. 20 C.F.R. § 10.622(d)
All decisions regarding rescheduling of hearings as described under Section 10.622 of the CFR, subsections (b) through (d), are within H&R's sole discretion.
g. Abandonment of Hearing Requests. A claimant who fails to appear at a scheduled hearing may request in writing within 10 days after the date set for the hearing that another hearing be scheduled. Where good cause for failure to appear is shown, another hearing will be scheduled and conducted by teleconference. The second hearing will be scheduled as soon as possible but usually no later than 35 days from the date it is requested unless good cause is shown to reschedule at a later date.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant to appear at the second scheduled hearing without good cause shown, shall constitute abandonment of the request for a hearing.
Where good cause is shown for failure to appear at the second scheduled hearing, review of the matter will proceed as a review of the written record. Hearing Representatives will ensure that the record is properly documented to reflect all changes made concerning rescheduling and changes in format.
Where it has been determined that a claimant has abandoned his/her right to a hearing, H&R will issue a formal decision finding that the claimant has abandoned his or her request for a hearing. In cases involving pre-recoupment hearings, H&R will issue a final decision on the overpayment based on the available evidence before returning the case to the Office. 20 C.F.R. §10.622(f).
h. Subpoenas. A claimant may request a subpoena for documents and/or the attendance and testimony of a witness; however, the decision to grant or deny such a request is within the discretion of the hearing representative. See 20 C.F.R. §10.619.
(1) Subpoenas for documents are issued only if such evidence is relevant and cannot be obtained by other means (e.g. where the agency has factual evidence necessary for the adjudication of the claim that it has not disclosed). Subpoenas for the attendance and testimony of a witness are issued only where oral testimony is the best way to ascertain the facts.
(2) A subpoena request must be made in writing no later than 60 days (as evidenced by postmark, electronic marker, or other objective date marker) after the original hearing request.
(3) The subpoena request must designate the witness or documents to be produced, and clearly describe the address and location of the witness or documents to be subpoenaed. The request must also explain why the testimony or evidence is directly relevant to the issues at hand, and must demonstrate that a subpoena is the best and only method or opportunity to obtain such evidence. The Hearing Representative has the discretion to decide that such facts could be established by other evidence without the issuance of a subpoena.
(4) If H&R determines that issuance of a subpoena is reasonably necessary for the full presentation of the case, a subpoena will be issued in the name of the Hearing Representative which compels the attendance of witnesses.
(5) The OWCP shall pay fees requested by witnesses who have submitted evidence into the case record at the request of the Office. The claimant shall pay fees requested by witnesses who have submitted evidence into the case record at the request of the claimant. In order to reduce reimbursement costs to either party, H&R will, at its discretion, change the hearing format so that witnesses whose attendance is compelled by subpoena can participate by telephone.
(6) If H&R determines that issuance of a subpoena is not reasonably necessary to present the case fully, a formal denial of the request for subpoena, with an explanation for such denial, will be included with the final decision (see paragraph 8d below). The decision must explain to the claimant the other available means which are reasonably likely to allow discovery of the information or why the information requested is not necessary for the adjudication of the claim.
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7. Conduct of Hearings. This paragraph describes the steps involved in the hearing itself.
a. Nature of Proceedings. Hearings will be open to claimants, their representatives, witnesses, designated agency officials, and any other persons whose presence the Hearing Representative deems necessary. The proceedings are informal and are not limited by legal rules of evidence or procedures. The proceedings are limited to one hour; however, this limitation may be extended in the discretion of the Hearing Representative. The testimony will be taken under oath and recorded verbatim.
b. Preliminary Matters. Before opening the proceedings, the Hearing Representative will explain to all parties present that hearings are non-adversarial in nature and that the claimant will have the opportunity to present any written or verbal evidence desired. In the event that communication assistance (such as a qualified sign language interpreter) is utilized at the hearing, the hearing representative will confirm that the requested assistance is available and working effectively prior to starting the hearing. In addition, the hearing representative will permit the hearing to proceed more slowly, or take into account any other needs, in order for the individual with a disability to fully understand the proceedings.
c. Opening the Hearing. At the beginning of the proceedings, the Hearing Representative will:
(1) Note the date and time;
(2) Identify all persons present by name;
(3) Administer an oath to all persons testifying;
(4) Make an opening statement which outlines the issues in question and ask the claimant if they concur; and
(5) Afford the claimant (or their representative) an opportunity to make an opening statement.
d. Presentation. The claimant may offer evidence in any manner desired. Written evidence offered should be acknowledged and made a part of the record. If the hearing is conducted via telephone or video, the claimant will be asked to discuss the evidence that they wish to make part of the record. The hearing representative will then inform the claimant that the evidence discussed should be forwarded to the Office for inclusion into the file. If the hearing is conducted in person, the claimant will be asked to discuss the evidence that they wish to make part of the record, and the Hearing Representative will mark such evidence and introduce it into the record. The Hearing Representative will ensure that the evidence handed to them at the hearing is scanned into the case file. During the presentation, the Hearing Representative should note any additional questions or areas for exploration and make appropriate inquiries before terminating the hearing.
e. Conclusion. When all witnesses have spoken, and the Hearing Representative has obtained all necessary clarification, the Hearing Representative will close the proceedings by noting the time of completion. The record will remain open for the submission of additional evidence for 30 days after the hearing is held. At the sole discretion of the Hearing Representative, one brief extension may be granted after the initial 30 days.
f. Summary Decisions. If evidence is presented on or before the date of the hearing, and such evidence is sufficient to warrant a remand or reversal of the Office’s decision, the Hearing Representative should cancel the hearing with all parties in attendance at that time, and issue a Summary Decision by taking the following actions:
(1) The Hearing Representative should first enter into the record an opening statement summarizing the facts of the case. The Hearing Representative will then go off the record and confer with all participants, including the employing agency representative (if in attendance), that the case is in posture for a remand or reversal at the hearing.
(2) The Hearing Representative will consult all participants in attendance prior to the issuance of a Summary Decision and obtain concurrence from the claimant and/or representative.
(3) The Hearing Representative will go back on the record, acknowledge that the claimant and/or representative is in agreement with the Summary Decision, announce that the hearing has been cancelled and provide the employing agency representative (if in attendance) the opportunity to comment on the record, prior to issuing the Summary Decision. If the employing agency representative is not in attendance at the hearing, the Hearing Representative will proceed with the issuance of the Summary Decision.
(4) The Hearing Representative will announce the decision into the record, describe the evidence that is found sufficient to warrant a remand or reversal of the Office’s decision, and may cite at their discretion any appropriate decisions from the Employees’ Compensation Appeals Board, regulations, and/or Procedures to support the decision.
(5) The Hearing Representative will explain that the Summary Decision will be transcribed by the court reporter and that transcript will constitute the formal hearing decision which is made final upon receipt of the transcript.
(6) Upon receipt of the transcript into the case file, the Hearing Representative will issue a Summary Decision Letter to all required participants that includes the date of the hearing, the outcome, and the specific page and line in the transcript for the Summary Decision. As the hearing was cancelled and all parties in attendance agreed with Summary Decision, no further opportunity to provide comments in response to the transcript or decision will be afforded to any party.
(7) Examples of issues that may be in posture for a Summary Decision include:
a. Primary Adjudication Cases denied on Fact of Injury Medical or Causal Relationship and sufficient medical documentation is presented prior to hearing.
b. Schedule Award denials for no evidence of impairment and an impairment rating is presented prior to hearing.
c. Wage loss denials and sufficient medical documentation is presented prior to hearing.
d. Termination decisions and sufficient medical documentation is presented prior to hearing.
e. Expansion of Claims/Consequential Condition denials and sufficient medical documentation is presented prior to hearing.
(8) Under no circumstances may a summary decision be used to issue an affirmation.
Back to Chapter 2-1601 Table of Contents8. Reaching a Determination. In this paragraph, the actions taken after the hearing are described.
a. Comments. The claimant (or the authorized representative) and the employing agency will be provided with a copy of the transcript. The employing agency will be allowed 20 days from the release of the transcript to submit any comments and/or documents believed relevant to the issue in question. Any comments or documents submitted by the agency will be forwarded to the claimant or his/her representative with the opportunity to submit written comments within 20 days.
b. Further Development. If additional development is needed, the case may be remanded to the Office. However, if the issue can be resolved readily, the Hearing Representative will undertake the additional development and incorporate the results into the decision.
c. Schedule Awards. The OWCP adopted the Third Edition of the AMA Guides to the Evaluation of Permanent Impairment effective March 8, 1989; the revised Third Edition of the Guides effective September 1, 1991; the Fourth Edition effective November 1, 1993; the Fifth Edition effective February 1, 2001; and the Sixth Edition effective May 1, 2009. Any recalculations of previous awards which result from Hearings and Review decisions issued on or after May 1, 2009, should be based on the Sixth Edition of the Guides. However, if the percentage of the award is affirmed but the case is remanded for further development of some other issue, e.g. pay rate, recalculation of the percentage of the award under the Sixth Edition is not required.
Where a calculation under the Sixth Edition results in a lower impairment rating to a schedule member than the original award under the Fifth Edition, the Office (consistent with past practice) will make the finding that the claimant has no more than the percentage of impairment originally awarded; that the evidence does not establish an increased impairment; and that an overpayment will not be declared.
Similarly, if a claimant requests an increased schedule award due to a belief that his or her medical condition has deteriorated since the original award was issued, and additional development is undertaken to address this claim for an increased award, a new schedule award decision should be issued that addresses and substantiates the newly determined impairment rating. If a lesser degree of impairment than previously awarded is substantiated, the Office also will make the finding that the claimant has no more than the percentage of impairment originally awarded; that the evidence does not establish an increased impairment; and that an overpayment will not be declared.
If, during the course of the appeals process, it is determined that the initial schedule award decision must be set aside, a new schedule award decision should be issued that fully addresses the reasons for the change in rating. Declaring an overpayment thereafter is appropriate if the de novo decision substantiates a lesser degree of impairment than previously awarded, so long as both ratings are based on the same edition of the AMA Guides. The resulting overpayment should have a finding of without fault.
d. Final Decision. When all evidence and testimony has been evaluated, the Hearing Representative will issue a decision which affirms, reverses, remands, or modifies the Office decision. If ECAB citations are used, they should be relevant to the specific issue and contain a string citation and should generally include a current cite not less than five years since issuance if possible. If the issuance of a subpoena was in question, the final decision should include formal findings on this matter. If the decision is adverse to the claimant, the claimant's appeal rights will be noted.
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9. Claims Office Actions. Any case requiring further action based on a decision issued by H&R should be promptly assigned to a CE for the required action.
a. Timeliness of Action. Substantive action should be taken within prescribed timeframes following return of the case file.
b. Reinstatement of Benefits. If the hearing decision concludes that the Office did not meet its burden of proof before reducing or terminating benefits, the following actions will be taken:
(1) The Hearing Representative will instruct the claimant or representative of his/her right to file Form CA-7 (or, in the case of death benefits, Form CA-12) to claim compensation.
(2) Upon receipt of the completed form, the office should promptly reinstate benefits to the claimant at the previous level, including retroactive payment to the date of reduction or termination.
(3) If the completed form shows earnings, employment, or receipt of an annuity, the CE should obtain an election or additional information, including a Form CA-1032 as necessary.
(4) The Form CA-7 is intended to cover the entire period during which benefits were terminated or reduced. Only one Form CA-7 need be completed. In general, further payments should be made on the periodic roll.
c. Review of the Remand Decision. If the Office, upon careful review, believes the remand decision issued by the Branch of Hearings and Review contains a serious error of fact or law, the Office Director should contact the Deputy Director, Operations and FECA Claims Management, within 15 days of receipt of the decision outlining the basis for the disagreement. This review process, rarely employed, should be reserved for cases where there is a material factual error or a misinterpretation of the statute, regulations, or procedures that is critical to the decision. If, upon review of the decision, the Deputy Director determines that the decision issued was in error, the decision may be vacated through 5 U.S.C. 8128, which provides for review of a decision allowing or denying compensation "at any time." If, upon review of the decision, the Deputy Director determines that the decision issued was appropriate, no action will be taken. This process does not apply to Employing Agencies.
This process also does not apply to claimants or their authorized representatives, since appeal rights are issued with every affirmation decision issued by the Branch of Hearings and Review.
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Back to Chapter 2-1602 Table of Contents
1. Purpose. This chapter outlines procedures for handling reconsideration requests. It describes the filing requirements, the tests for sufficiency of applications, and the actions required to process them. All such requests are handled within the office having jurisdiction of the case.
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2. Policy. The following policy considerations pertain to all requests for reconsideration:
a. Requirements. A claimant may apply for reconsideration of a final decision regardless of the date of injury or death. While no special form is required, the request must be in writing, be signed and dated by the claimant or the authorized representative and be accompanied by relevant new evidence or argument not considered previously. The request should also identify the decision and the specific issue(s) for which reconsideration is being requested. The request must be received within one year of the date of the contested decision if that date was after June 1, 1987 (see paragraphs 4d and 4e below).
b. Assignment and Signature Level. Each request for reconsideration must be handled by a Quality Assurance and Mentoring Examiner (QAM) or higher authority who was not involved in making the contested decision (with one exception, described in paragraph 3c below). All reconsideration decisions, whether affirmative or negative, must be issued by a QAM or higher authority.
c. Timeliness for Issuing Decisions. The goal for issuing reconsideration decisions is 90 days from receipt of the request. To meet this goal, a final decision must be issued. In a case requiring further development it is not sufficient to vacate the previous decision and return the case to the responsible Claims Examiner (CE) for further action.
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3. Preliminary Processing.
a. Review of Request. The CE will receive a reconsideration request in the incoming mail. Upon receipt of a request, the CE should refer the request to the designated individual who assigns reconsiderations. That individual will assign the reconsideration request to a QAM who was not previously involved in the contested decision.
(1) The request does not have to be submitted on the appeal request form; letter format is acceptable.
(2) The word "reconsideration" does not need to be stated in the request for it to be considered valid, but sufficient detail should be provided to discern the decision being contested and to ensure that another form of appeal is not being requested.
(a) If the claimant does not state the date of the specific decision contested, the CE, QAM, or the designated individual should review the reconsideration request and determine whether a final decision has been released on the issue for which reconsideration is requested.
(b) If no final decision has been released on the issue or the contested decision cannot be reasonably determined from the claimant's request, the CE, QAM, or designated individual should return a copy of the application to the claimant for clarification and inform the claimant that OWCP will take no further action on the request unless clarification is submitted. (This action is not a denial of application and should not be reported as a reconsideration decision; if such a request had been entered into the tracking system it should be deleted.)
(c) An example of "reasonably determined" includes an instance where only one final decision was issued in the case file so it can be reasonably determined that the one denial decision is the one being contested.
b. If a claimant is seeking an increased schedule award due to increased impairment and/or additional exposure, but not contesting the decision or prior award, this should not be treated as a reconsideration request. The responsible CE should develop entitlement to an additional award.
c. Non-receipt of a completed CA-1032 or CA-12. When compensation has been suspended for failure to submit a CA-1032 or CA-12 form, the claimant or beneficiary may request a reconsideration accompanied by a completed Form CA-1032 or CA-12. In this case, the CE currently assigned to the case may act on the reconsideration request and restore benefits since submission of the form itself satisfies the requirement for reinstatement. No reconsideration assignment to a QAM is necessary, but the CE should notify the claimant or beneficiary that benefits have been reinstated.
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4. Time Limitations. OWCP's regulations at 20 CFR §10.607(a) establish a one-year time limit for requesting reconsideration. The one-year period begins on the next day after the date of the original contested decision. For merit decisions issued on or after August 29, 2011, an application for reconsideration must be received by OWCP within one year of the OWCP decision for which review is sought.
Reference W.H., Docket No. 14-92, issued April 28, 2014. In its April 29, 2013 decision, OWCP determined that the appellant filed an untimely request for reconsideration of its April 4, 2012 decision. The appellant's reconsideration was received by OWCP on April 4, 2013, a period of 365 days after the April 4, 2012 decision. The Employees' Compensation Appeals Board (ECAB) held that the request was received precisely within one year and was therefore timely.
See also, C.B., Docket No. 13-1732, issued January 28, 2014. The ECAB held that for OWCP decisions issued on or after August 29, 2011, the date of the application for reconsideration is the "received date" as recorded in the Integrated Federal Employee's Compensation System (IFECS). In this case, the received date of the application was January 24, 2013, one year after the January 24, 2012 OWCP decision. Since the application for reconsideration was within one year of OWCP's decision for which review is sought, it was found to be timely.
In addition, when determining the one-year period for requesting reconsideration, the last day of the period should be included unless it is a Saturday, a Sunday or a legal holiday. See M.A., Docket No. 13-1783, issued January 2, 2014. In this case, OWCP's denial decision was issued on October 26, 2011. A merit decision was subsequently issued on February 10, 2012. The appellant then requested reconsideration on February 11, 2013. In a February 27, 2013 decision, OWCP denied his request for reconsideration finding that it was not timely filed. The ECAB held that in computing the time for requesting reconsideration, the last day of the period shall be included unless it is a Saturday, a Sunday or a legal holiday. The merit decision was dated February 10, 2012 and the appellant's request for reconsideration was received by OWCP on Monday, February 11, 2013. The ECAB held that because February 10, 2013 was a Sunday, the appellant had until Monday, February 11, 2013 to request reconsideration and therefore his request was timely received by OWCP.
a. A right to reconsideration within one year accompanies any subsequent merit decision. This includes any decision issued by the Branch of Hearings and Review (H&R) after a hearing or review of the written record, any denial of modification following a reconsideration, any merit decision by the ECAB, and any merit decision following a remand from H&R or the ECAB, but does not include pre-recoupment hearing decisions.
b. The QAM should review the file to determine whether the application for reconsideration was received within one year of a merit decision. Timeliness is determined by the document receipt date (the "received date" in iFECS). If the request for reconsideration has a document received date greater than one year, the request must be considered untimely.
c. The one-year time limit to file a reconsideration request does not include any time following the decision that the claimant can establish (through medical evidence) an inability to communicate and that his testimony would be necessary. (See 20 CFR. §10.607(c); J.H., Docket No. 14-118 (issued April 28, 2014) (ECAB held that to the extent that appellant asserted that her depression prevented her from filing a timely reconsideration request, "the Board finds this argument to be without merit. Appellant did not provide medical evidence to support that her depression or other condition rendered her unable to communicate in any way such that she could not timely request reconsideration."); John Crawford, 52 ECAB 395 (2001).
d. Decisions Issued Before June 1, 1987. No time limit applies to requests for reconsideration of these decisions because there was no regulatory time limit for requesting reconsideration prior to June 1, 1987. Therefore, a request for reconsideration may not be denied as untimely unless the claimant was advised of the one-year filing requirement in a later decision denying an application for reconsideration or denying modification of the contested decision. In these cases, the one-year time limit begins on the next day after the date of the decision that includes notice of the time limitation.
e. Decisions Issued on or after June 1, 1987 through August 28, 2011. For decisions issued during this period, there is still a one-year time limit for requesting reconsideration. The one-year period begins on the next day after the date of the original decision, and the application for reconsideration must be mailed to OWCP within one year of the OWCP decision for which review is sought.
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5. Untimely Applications. The regulations at 20 CFR §10.607(b) provide that OWCP will consider an untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.
a. Clear Evidence of Error. The term "clear evidence of error" is intended to represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. Evidence such as a detailed, well-rationalized medical report which, if submitted before the denial was issued would have created a conflict in medical opinion requiring further development, is not clear evidence of error. (Dean D. Beets, 43 ECAB 1153 (1992); Leona N. Travis, 43 ECAB 227 (1991)). Compare J.H. Docket No. 15-280 (issued November 18, 2015 (Where review of the file demonstrated OWCP had received documentation prior to its 2012 termination of compensation that the employing agency could no longer accommodate the employee's work restrictions, ECAB found clear evidence of error in denying appellant's untimely request for reconsideration.)
b. If clear evidence of error has not been presented, the request should be denied according to 20 CFR §10.608(b). The QAM should deny the application by letter decision, which includes a brief evaluation of the evidence submitted and a finding that clear evidence of error has not been shown. The claimant's only right of appeal from this decision is to ECAB.
c. If clear evidence of error has been presented with an untimely application, the QAM should issue two separate formal decisions. The first decision will deny the application due to timeliness; this can be a letter decision. The second is a merit review on the Director's own motion. Section 8128 of the Federal Employees Compensation Act provides the authority for the Secretary of Labor to review an award for or against payment of compensation at any time on the Director's own motion. This review may be made without regard to whether there is new evidence or information. See 20 CFR. §10.610.
(1) If the Director, or a designated person acting on the Director's behalf, determines that a review of the award is warranted (including, but not limited to circumstances indicating a mistake of fact or law or changed conditions), the Director or designee, (at any time and on the basis of existing evidence) may modify, rescind, decrease, or increase compensation previously awarded, or award compensation previously denied. A review on the Director's own motion is not subject to a request or petition and none shall be entertained.
(2) The decision whether or not to review an award under this section is solely within the discretion of the Director. The Director's exercise of this discretion is not subject to review by the ECAB, nor can it be the subject of a reconsideration or hearing request.
(3) Where the Director reviews an award on his or her own motion, any resulting decision is subject as appropriate to reconsideration, a hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal to ECAB is limited to a review of the merits of the resulting decision. The Director's determination to review or not to review an award is not reviewable, i.e., is not subject to appeal.
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6. Timely Applications. In accordance with the regulations set forth in 20 CFR 10.606, a timely application for reconsideration must be accompanied by specific evidence or argument.
a. Evidence or Argument Required. All requests for timely reconsideration should be accompanied by one of the following:
(1) Argument that the OWCP erroneously applied or interpreted a point of law. 20 CFR 606(b)(3)(i). For example, the CE failing to use the Shadrick formula when calculating a loss of wage earning capacity (LWEC), or failing to include all appropriate elements of pay when determining a pay rate for compensation purposes.
(2) Relevant legal argument not previously considered by OWCP. 20 CFR 606(b)(3)(ii). A statement from the claimant that he or she simply does not agree with basis of the decision does not constitute relevant legal argument. The statements or documentation submitted by the claimant would need to be accompanied by a legal premise material to the denied issue in order to have a reasonable color of validity for reopening of the case for further review on the merits.
For example, in a case that was denied on the basis of a medical opinion of a referee specialist, the introduction of evidence to support a prior connection between the referee physician and the employing agency would be sufficient to require the Office to reopen the case for a review of the merits. While a reopening of a case may be predicated solely on a legal premise not previously considered, such reopening for further review on the merits is not required where the legal contention does not have a reasonable color of validity. See Cleopatra McDougal-Saddler, 50 ECAB 367 (1999), which indicates that an application should contain at least the assertion of an adequate legal premise, or the proffer of proof, or the attachment of a report or other form of written evidence, material to the kind of decision which the applicant expects to receive as the result of his application for reconsideration. See also Thomas D. Joy, Docket No. 98-1086 (issued March 16, 2000) (ECAB found appellant's arguments concerning procedural flaws in the hearing (including bias) lacked sufficient color of validity and did not warrant a reopening of his case for a review of the merits of his claim.)
(3) New evidence (not previously considered by OWCP) which is relevant to the issue upon denial. 20 CFR 606(b)(3)(iii). For example, the submission of a witness statement would be considered relevant if the claim had been denied because fact of injury had not been established. Such a statement would not be relevant if the claim had been denied because the claimant had not submitted medical evidence addressing causal relationship. See Matthew Diekemper, 31 ECAB 224 (1979) (new evidence which is submitted but is irrelevant to the pertinent issue is not sufficient to reopen the case on the merits). If the new medical reports are repetitious and cumulative of evidence previously submitted, they have no evidentiary value and do not constitute a basis for reopening the claimant's case. (Bruce E. Martin, 35 ECAB 1090, 1093-94; Eugene F. Butler, 36 ECAB 393 (1984). Evidence that is essentially duplicative (such as a duplicative narrative) does not form a basis for reopening a claim.) (See James W. Scott, 55 ECAB 606 (2004).)
b. Evaluating Sufficiency of Evidence. When the request for reconsideration is accompanied by new evidence, the QAM must determine whether it is sufficient to review the case on its merits. This step requires careful review of the file to assess what material it already contains. Such examination should not be confused with a merit review of the case.
(1) Nature of Evidence. The following kinds of evidence are not sufficient to reopen the claim for merit review:
(a) Cumulative evidence, which is substantially similar to material on file and has already been considered. For example, chart notes from the attending physician with new dates but similar content to those already of record and considered previously. See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000) (Physician reports were similar to previously submitted reports).
(b) Repetitious evidence, which consists of copies of previously submitted evidence which was already considered in the contested decision. For example, a duplicate medical report that was already considered. See David J. McDonald, 50 ECAB 185, 190 (1998) (Documents previously considered by the Office).
(c) Irrelevant or immaterial evidence which has no bearing on the issue or which is frivolous or inconsequential in regard to the issue. For example, a knee injury was claimed but the medical submitted pertains to a back condition or a case was denied on Fact of Injury (FOI)-factual but medical evidence is submitted. See Linda I. Sprague, 49 ECAB 386 (1997).
(2) The QAM should use caution in characterizing medical evidence as "cumulative" or "irrelevant." A rationalized supporting statement from a physician not previously of record requires a merit review when the denial rested on medical issues. However, a checked "yes" on a form report would not require a merit review just because it was from a new physician.
c. Based on review of the evidence submitted in conjunction with the case file, the QAM must then decide whether a merit review should be performed, or whether the application for such a review should be denied.
Where the application is accompanied by new and relevant evidence or by an arguable case for error, the QAM should conduct a merit review of the case to determine whether the prior decision should be modified. See paragraph 8. If the only evidence submitted is cumulative, repetitious or irrelevant, or no evidence is submitted, a non-merit decision should be issued. See paragraph 7.
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7. Non Merit Decisions. A timely application for review that is not supported by additional evidence or argument for error in fact or law is insufficient to warrant a merit review of the case.
For example, if a claimant submits a letter or appeal request form identifying the contested decision but provides no accompanying statement or additional evidence, or provides only cumulative, repetitious or irrelevant evidence, a non-merit review decision should be issued. See 20 CFR 10.608(b).
a. Protecting Claimant's Further Appeal Rights. The ECAB will accept appeals filed up to 180 days from the date of the last merit decision. If a reconsideration decision is delayed beyond 90 days, the claimant's right to review of the original decision by the ECAB is abrogated.
When a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the claimant's right to review of the merits of the case by the Board, OWCP should conduct a merit review. That is, the basis of the original decision and any new evidence should be considered and, if there is no basis to change the original decision, an order denying modification (rather than denying the application for review) should be prepared. There is no obligation to conduct a merit review on insufficient evidence if the maximum 180 day time limit for requesting review by the Board will have expired within the 90 day period following the OWCP's receipt of the claimant's reconsideration request. See C.L., Docket No. 10-1483 (May 12, 2011).
b. Decision. If the evidence submitted is not sufficient to require a merit review, the QAM should issue a decision which discusses the evidence submitted, or lack thereof, and explicitly state the basis for the finding of insufficiency. The decision should explain that the application for reconsideration is denied on the basis that the evidence submitted in support of the application is not sufficient to warrant review.
(1) The QAM should be careful not to include any language suggesting that a review on the merits of the claim was undertaken. Statements about whether an identical or similar document or opinion was found in the file are appropriate. Evaluative statements regarding new or old evidence, such as "the evidence lacks substantial probative value," are not appropriate.
(2) If no evidence is submitted with the application for reconsideration, a letter decision is adequate.
(3) If evidence is submitted, a Notice of Decision in addition to the cover letter should usually be provided in order to adequately discuss the deficiencies in the evidence.
(4) The claimant's only appeal from this decision is to request review by the ECAB.
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8. Merit Reviews. Where the application is accompanied by new and relevant evidence or by an arguable case for error, the QAM should conduct a merit review of the case to determine whether the prior decision should be modified.
a. Notice to Employing Agency. As soon as the QAM decides that an application is sufficient to warrant a merit review of the case, the employing agency should be notified; however, the requirement to provide a copy of the application and the evidence received differs depending on whether the issue for determination is medical in nature. See 20 CFR 10.609(a).
(1) Where there is a legal argument or factual basis for the merit review, the application together with copies of pertinent supporting documentation should be sent to the employing agency. The cover letter should explain that the employing agency may submit comments and/or documents but that any evidence must be received within 20 days. The employing agency should also be advised that any comment or evidence received is subject to review by the claimant.
Medical evidence submitted with the request shall not be furnished to the employing agency, since it does not constitute documentation that is "pertinent" for review and comment by the employing agency.
(2) Where a reconsideration request pertains only to a medical issue (such as disability or a schedule award), the employing agency should be notified that a request for reconsideration has been received, but no comments should be solicited from the employing agency if medical evidence is the sole basis for the review.
(a) OWCP is not required to wait 20 days for comment before reaching a determination, except when the claimant is deployed in an area of armed conflict.
(b) The QAM may provide notification of such a reconsideration request via the telephone. In this instance, the QAM should document the file with a CA-110 noting the agency representative who was provided with the notification.
(3) Any evidence submitted by the employing agency should be forwarded to the claimant with a letter allowing 20 days for comment before a final decision is issued on the reconsideration request.
(4) The QAM must ensure that the final decision addresses any additional evidence submitted and its disposition.
b. Development. The QAM should investigate the evidence independently of any previous determination, as follows:
(1) If the evidence submitted is sufficient to reopen the claim but not sufficient to reach a new decision, the QAM should develop the issue and maintain jurisdiction over it until a final decision is reached. A QAM has no authority to remand or return a case to a CE for further development actions.
(a) If an initial stress claim is received on reconsideration, the QAM should handle all appropriate adjudicatory actions pertaining to that particular claim. For example, if new evidence is submitted supporting a factor(s) of employment as work-related and causal relationship is now at issue, the QAM should prepare a Statement of Accepted Facts (SOAF) and refer the claimant for a second opinion examination.
(b) If a schedule award claim is received on reconsideration, the QAM should handle the case until a determination is made regarding the percentage of impairment. For example, if the claimant is disputing the percentage of award and submits new evidence, the case should be referred back to the DMA if appropriate, or for further examination if needed.
Note - OWCP adopted the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment effective May 1, 2009. Any recalculations of previous awards based on a prior edition of the Guides, which result from a reconsideration decision issued on or after May 1, 2009, should be based on the Sixth Edition of the Guides. See PM 2-808 for further discussion of appropriate actions after recalculation of a previous award.
(2) Any party from whom additional evidence is required should be asked to submit it within 20 days, so that the reconsideration request may be adjudicated within the 90-day time frame. If information requested from a claimant is not submitted in a timely manner, modification may be denied on the basis that the evidence is insufficient.
c. Decisions. After any necessary development, the QAM should issue one of the following formal decisions:
(1) Deny modification of the prior decision. If the evidence submitted is insufficient to alter the prior decision, the QAM should deny modification of the prior decision. To deny modification of the prior decision, the QAM should prepare a formal decision discussing the evidence received and include a detailed explanation why the evidence is not sufficient to modify the prior decision rendered. Such a denial does not carry the right to a hearing/review but does carry the right to request reconsideration again, or review by the ECAB.
(2) Vacate the prior decision. If a previous decision is to be vacated and a condition, period of disability, etc. is to be newly accepted, the QAM should prepare a decision to vacate and a cover letter which describes the acceptance in specific terms. The decision should explicitly point to the evidence used to vacate the denial and provide a brief discussion as to how it is sufficient to overturn the prior decision. If this decision represents the initial acceptance for the claim, an acceptance letter with the attachment "Now That Your Claim Has Been Accepted" should be sent with the decision.
(3) Modification of the prior decision. Such a decision does not carry the right to a hearing/review but does carry the right to again request reconsideration or review by the ECAB.
(a) To modify an initial denial from one of the five basic elements to another, the QAM should prepare a decision explaining why the evidence is now sufficient to meet the prior element denied, but still insufficient to meet the next element(s). For example, if a case was previously denied on FOI-Factual for the reason that the claimant had not sufficiently explained how the injury occurred, and the claimant submitted a detailed factual statement with his/her reconsideration request that now meets FOI-Factual, but the case file remains devoid of a valid diagnosis, then the decision needs to explain that OWCP is modifying the prior decision to now meet FOI-Factual but the case remains denied on FOI-Medical.
(b) If a prior decision is to be affirmed in part and modified/vacated in part, the QAM will need to prepare a decision which incorporates both the previous and new findings. The cover letter to the claimant should describe in detail the elements of the new decision, explicitly stating which findings and/or conclusions are affirmed and which findings and/or conclusions are being modified. For example, all benefits, both compensation and medical, were terminated and upon reconsideration, the claimant submitted supportive medical evidence that indicates further medical treatment is still required. The termination of compensation benefits is affirmed but the decision to terminate all medical benefits is vacated. The reconsideration decision should explicitly explain that the evidence still supports that the work-related disability has resolved and therefore compensation benefits remain terminated. However, the new evidence submitted upon reconsideration now supports the work-related condition has not resolved and the claimant remains entitled to medical benefits.
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Chapter 2-1603, Appeals |
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Back to Chapter 2-1603 Table of Contents
1. Purpose and Scope. This chapter describes the procedures for handling cases which have been requested by the Employees' Compensation Appeals Board (ECAB) for review of a final decision of the OWCP.
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2. Function of the ECAB.
a. Origins. The ECAB was created as an entity separate from OWCP to give Federal employees the same administrative due process of law and right of appellate review which most non-Federal workers have under the various state workers' compensation laws. The Board consists of three members, one of whom is designated as Chairman of the Board and administrative officer.
b. Jurisdiction. The ECAB may consider and decide appeals from the final decisions of the OWCP in any case arising under the FECA. The Board may review all relevant questions of law, fact, and exercise of discretion in such cases, except decisions concerning the amounts payable for medical services and decisions concerning exclusion and reinstatement of medical providers.
c. Evidence. Only the evidence in the case record as it stood at the time of OWCP's final decision will be reviewed, and the ECAB will not consider new evidence. The Board may hear oral argument upon request, though any such argument must be based on the evidence of record.
d. Timeliness of Filing. The claimant must file application for review by the Board within 180 days from the date of OWCP's decision.
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3. Requests for Appeal and Information about Board Procedures. Requests for appeal must either be in writing and sent directly to the Board in accordance with the instructions that accompany formal OWCP decisions or may be filed electronically through ECAB's Electronic Filing System.
Occasionally, a written request for appeal to ECAB will be addressed to OWCP. When the office receives such a request, the Claims Examiner will release a letter informing the requestor that their request is being returned to them, and that all correspondence relating to an appeal should be sent directly to the Board.
If a final decision has not been issued, the requestor should be advised that the Board will review only final decisions and informed of the requirements for obtaining such a determination.
Persons requesting information about Board procedures should be informed that the Board is a separate entity from the OWCP and operates under its own explicit rules of procedure, and that any inquiries about those procedures must be directed to the Board. The ECAB is responsible for providing replies to all inquiries concerning the rules and procedures under which it operates.
Once an appeal is docketed, the office no longer has jurisdiction over the issue appealed. This is so even though the claims office maintains electronic access to the case record. However, in accordance with Douglas E. Billings, 41 ECAB 880, the office shall issue decisions on matters which do not relate to or affect the issue on appeal.
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4. Processing of Cases on Appeal.
a. Preliminary Review. Appeals are reviewed by an attorney from the Office of the Solicitor (SOL). Following SOL review, the case may be either submitted to the Board "on the record" without a pleading or with a pleading prepared by SOL on behalf of the Director. The pleadings take various forms such as a Memorandum in Justification, a Motion to Remand, or a Motion to Dismiss. SOL files pleadings and may represent the Director in oral argument before the Board, however no pleading is required and the failure to submit any such pleading does not prejudice the rights of either the claimant or the Director.
Once received, and after conducting a preliminary review, the ECAB notifies OWCP via nightly transmission that the case has been docketed. The transmission populates the docket number, docket date, ECAB and Claimant Request date in the Case Appeals – ECAB Application in iFECS. The claimant, and his or her representative, receive written notification from the Board that their case has been docketed, and a copy is bronzed into the case record.
b. Case Maintenance. Claims examiners reply to correspondence and telephone inquiries received in cases before the Board, and authorize medical care, bill payments, daily roll compensation payments and any other issues not before the Board.
c. Return of Case Record following ECAB's decision. After the Board issues its decision, no action should be taken until the decision is final, usually 30 days after decision.
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5. Cases Returned to the Office. Any case requiring further action should be immediately assigned to a CE to take the action.
a. Timeliness of Action. Substantive action should be taken within prescribed timeframes following receipt of the case record.
b. Reinstatement of Benefits. If the Board has held that the Office did not meet is burden of proof before reducing or terminating benefits, the following actions will be taken as appropriate:
(1) National Office staff will release a letter to the claimant or representative enclosing a Form CA-1032 (or Form CA-12 in the case of death benefits) with instructions to complete the form and submit it to the office.
(2) On receipt of the completed form, the office should promptly reinstate benefits to the claimant at the previous level following any development necessitated by the responses to the form, including retroactive payment to the date of reduction or termination.
(3) If the completed form shows earnings, employment, or receipt of an annuity, the CE should obtain an election of benefits and other necessary information.
(4) The Form CA-1032 is intended to cover the entire period during which benefits were terminated or reduced. Only one Form CA-1032 need be completed. In general, further payments should be made on the periodic roll.
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6. Representative's Fee. The Board must approve all fees for work done before it. The Board does not need the OWCP case file for fee approval. The Board's docket file contains the necessary information.