|November 3, 2008|
Information for Federal Employees
The Employees' Compensation Appeals Board (ECAB) was created under Reorganization Plan No. 2 of 1946, effective July 16, 1946. The Board is a three member quasi-judicial body which has been delegated exclusive jurisdiction by Congress to hear and make final decisions on appeals of Federal employees from final decisions of the Office of Workers' Compensation Programs (OWCP) in claims arising under the Federal Employees' Compensation Act (5 U.S.C. §§ 8101 et seq.). The Board is independent of the Office and its jurisdiction is strictly appellate and extends to questions of fact and law and the exercise of discretion. The Board's decisions are binding upon the Office and must be accepted and acted upon by the Director.
Board review is limited to that evidence in the case record upon which the OWCP rendered its decision; new or additional evidence may not be submitted to the Board. The decision of the Board is final as to the subject matter appealed, and is not subject to court review.
Any claimant who has received a final decision from the OWCP has the right to file an appeal with the Board. An application for review should be filed within 90 days from the date of the OWCP decision (180 days for persons residing outside the continental United States or Canada). If good cause is shown for the delay in filing, the Board may accept an application after the 90 (or 180) day period, provided it is received by the Board within one year of the date of the OWCP's decision.
An application for Board review should be filed on the Board's Form AB-1(Application for Review), but the Board will accept an informal application if it gives (1) the applicant's full name, (2) the OWCP's case file number, (3) the date and place of injury, (4) the date of the most recent OWCP decision, and (5) the reason for disagreement with the decision. The application must be signed by the person adversely affected by the OWCP decision.
An appellant may designate a representative for purposes of the appeal but it is not required that an appellant be represented before the Board. An appellant may be represented before the Board by an attorney, union representative, or other individual. The appellant must submit a signed statement authorizing his/her representation before the Board, either by completing items number 8 and 9 on the Application for Review (AB-1) form or submitting a separate signed statement of authorization. All fees for legal services performed require approval of the Board. The payment of any fee approved by the Board is the responsibility of the appellant.
The Board does not have authority to authorize requests for medical treatment or other matters relating to the claim during the processing of the appeal. The Board strives to process appeals in the order in which they are filed and as expeditiously as possible.
AFTER AN APPEAL IS DOCKETED
When the appeal is docketed, a docket number will be assigned to the appeal and a copy of the application is served upon the Director of the OWCP, who is permitted time within which to forward the case record to the Board and a pleading, which is usually a memorandum in justification of the OWCP decision. After the appeal is docketed, a request is made by the Board to the Office to forward the case record. The Board's review of a case is limited to that evidence which was in the case record at the time the Office issued it's final decision. New or additional evidence may not be submitted for consideration by the Board. Should you have new evidence you wish to have considered by the Office, a written request for reconsideration may be addressed to the district office of the Office for the area in which you reside.
Either the Director or the appellant may request oral argument. The Board will mail a copy of the Director's memorandum to the appellant and will allow adequate time to file a reply, or to request oral argument if desired. If neither party requests oral argument, the case is submitted to the Board for decision on the record.
If the appellant or the Director requests oral argument, the case is scheduled for oral argument before the Board. Oral Arguments are held only in Washington, D.C. The Board does not pay for travel or incidental expenses. The Board will set the issues to be heard at argument and send notice to all parties at least 10 days prior to the date of the scheduled argument. The appellant or his designated representative may appear before the Board to present argument. Failure to appear will cause the case to be reviewed on the record.
The scheduling of the date for oral argument can be expected to add to the time in which the appeal is processed. Oral argument before the Board should not be confused with a hearing before an Office hearing representative. There is no provision for the introduction of new evidence or testimony or questioning of witnesses. Oral argument is appellate in nature and must be confined to the evidence in the case record and the issues raised.
The procedure at oral argument is informal. Argument is first presented by the appellant or his representative, then the Director's representative makes a statement, following which the appellant is given an opportunity for rebuttal. As the Board's jurisdiction is appellate, new or additional evidence may not be introduced. Oral argument must be confined to the evidence in the case record or to the legal issue raised. There is no provision for introduction of testimony or interrogation of witnesses.
The Board strives to process appeals in the order in which they are filed and as expeditiously as possible. The only difference in procedure between cases submitted on the record and oral argument cases is that, in the latter, the parties have an opportunity to argue points which they consider significant. Every appeal is reviewed by a panel of Board members, who review the case record and the contentions raised on appeal. All evidence is carefully considered before a decision is reached. The Board endeavors to maintain a high standard of appellate review and to achieve, through its procedures, a just decision in every appeal. The Board's decision includes a written opinion setting forth the relevant facts, conclusions reached, and the applicable law and analysis upon which the Board based its decision. A copy of the Board's decision is sent on the day it is issued.
The Board will issue a written decision or order in every appeal which sets forth the relevant facts of the case, the applicable law, and the reasoning upon which the Board based its action. A copy of the Board's final decision will be sent to the appellant and any duly authorized representative. Please notify the Board of any change of address during the pendency of an appeal.
Decisions of the Board are comprehensive and constitute a valuable source of precedent which serves to guide the OWCP in the adjudication of claims and as reference for injured employees' attorneys, and others concerned with issues in the field of workers' compensation. At the end of each fiscal year the Board selects decisions to be assembled and printed in volumes. Volumes of Decisions of the Employees' Compensation Appeals Board and the Index Digest may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. They are also distributed by the Printing Office to depository libraries of each State (university and law school libraries; local and state bar association libraries), all district offices of the OWCP and certain other offices of the Department of Labor throughout the United States. The decisions are also posted on the web.
Although most appeals are processed to conclusion by a decision of the Board, following complete review of the case, other types of action may be taken during the preliminary processing of the appeal. For example, an appellant may request permission to withdraw the appeal at any stage in the proceedings in order to reopen the claim and submit new or additional evidence to the OWCP. The Director of the OWCP may file a motion to dismiss the appeal, for reasons fully stated; or file a motion to remand the case to the OWCP for further appropriate proceedings. A copy of any motion filed by the Director is mailed to the appellant, who is given an opportunity to reply. In such cases, after due consideration, the Board will issue a formal order and furnish a copy to each party in interest.
CASE RECORD INSPECTION
Within the discretion of the Board, at any stage of the appeal, an appellant or the designated representative may inspect the case record in the office of the Clerk of the Board in Washington, D.C. Arrangements may also be made for inspection of the case record in offices of the U.S. Department of Labor in other cities.
All fees for legal services performed in connection with an appeal require the approval of the Board. Receipt of any fee or other consideration for such legal services without approval is a misdemeanor. Disbursements for such items as travel, telephone calls, postage, etc. do not require approval; they are a matter for adjustment between attorney and client. An application for approval of a fee for legal services should not be submitted to the Board until after an appeal is closed. Once the appeal is closed, the fee application should be forwarded to the Board for approval. It must be accompanied by an itemized statement of the time and character of the work performed solely in connection with the appeal, and must state the amount of the fee requested. The Board will mail a copy of the fee application to the appellant, who is given the opportunity to comment. The Board then reviews the application and will approve a fee in the amount which it considers fair and reasonable. The payment of any fee approved by the Board is the responsibility of the appellant. Legal services performed before the OWCP require a separate fee application to be submitted to the OWCP for approval.
If you are not satisfied with the decision of the Board, a petition for reconsideration may be filed within 30 days from the date of the Board's decision. The petition should set forth the error of fact or law that you think the Board made; not just that you disagree with the decision. If no petition for reconsideration is filed, the decision of the Board becomes final after 30 days. A decision of the Board is final as to the subject matter appealed and is not subject to court review. After a decision of the Board becomes final, any further request to reopen the claim must be submitted to the district office of the Office for the area in which you reside.