|November 4, 2008|
ECAB - Processing an Appeal
The Rules of Procedure of the Employees’ Compensation Appeals Board (Board), codified at 20 C.F.R. Part 501, govern the processing of appeals before the judges. The Rules have been recently revised and apply to appeals from decisions of the Office of Workers’ Compensation Programs (Office or OWCP) issued on or after November 19, 2008. Click here for HTML or PDF version of the new regulations. These are the first substantial revisions to the Board’s Rules of Procedure in 46 years. For all decisions issued prior to that date, the old regulations will apply. Click here for HTML version of the old regulations.
APPEALS The Employees’ Compensation Appeals Board is an appellate body with jurisdiction to consider and decide appeals from the final decisions of the Office of Workers’ Compensation Programs. The Board is independent of and a separate agency distinct from the Office. Once a final decision has been issued by the Office, an appeal may be filed with the Board. The Rules of Procedure establish the general procedures for filing and processing appeals from final decisions of OWCP. The Board may not take jurisdiction from a decision of the Office unless an appeal is made by the individual adversely affected by the decision (appellant). The Rules require that, as of November 19, 2008, an appeal must be filed within 180 days following the date of the Office’s final decision. Any Office decision issued prior to November 19, 2008 will be subject to the old Rules of Procedure which, in practice, permit an appeal up to one year from the OWCP decision. Please note how these time limitations may apply to your case.
NO NEW EVIDENCE The Board’s jurisdiction is limited to a consideration of the evidence of record at the time of the OWCP final decision. The Board may not take jurisdiction over informational or other routine letters sent by OWCP pertaining to your claim. The judges may not consider new evidence on appeal. Should you have new evidence, you may submit it to OWCP with a request for reconsideration of your claim. If you are satisfied that the relevant information was submitted and considered by the Office, your appeal may proceed. You should clearly state your disagreement with the OWCP decision and any factual or legal matter you want considered. Proceedings before the Board are informal and there is no requirement to file a pleading.
Please be aware that the Board and the Office may not have simultaneous jurisdiction over the same issue in a case. Following the docketing of an appeal, the Office does not have jurisdiction regarding the issue on appeal to the Board. For example, you may appeal to the Board from a schedule award decision by OWCP, which would retain jurisdiction to develop other aspects that may arise in your claim.
DOCKET NUMBER When your appeal is filed with the Board, a docket number will be assigned. Please refer to your assigned docket number in all correspondence with the Board. Every appeal is reviewed by a panel of judges who consider the case record and the arguments raised. All evidence is carefully considered before a decision is reached. The judges who consider your appeal will issue either a written decision explaining the action taken or an order disposing of the case. The Board strives to process appeals in the order in which they are filed and as expeditiously as possible.
PETITION FOR RECONSIDERATION Decisions of the Board are final and are not subject to review, except they may be reconsidered by the Board. If you are not satisfied with the Board’s decision, a petition for reconsideration must be filed within 30 days from the date of issuance of the Board’s decision or order. After 30 days, the decision of the Board becomes final. Thereafter, any request to reopen the claim must be submitted to OWCP.
ORAL ARGUMENT Oral argument is held in the discretion of the Board in appeals from OWCP decisions issued on or after November 19, 2008. Any request for oral argument must be submitted in writing to the Clerk’s office and specify the issue(s) to be argued. Your request must be made no later than 60 days after filing the appeal. An appeal in which oral argument is not granted will proceed to a written decision based on the case record. If oral argument is granted, the Clerk’s office will notify you at least 30 days prior to the argument as to the date set and issues determined for argument. In such situation, 30 minutes is allowed for argument. Under the old Rules, you may request oral argument anytime prior to issuance of the Board’s decision. Please note that under both the old and new Rules:
* Oral argument is held before the Board only in Washington, D.C.
* The Board does not reimburse any costs associated with attending oral argument.
* The Board exercises appellate review of the OWCP’s final decision and new evidence may not be introduced at argument.
* Oral argument must be confined to the evidence of record. There is no provision for the introduction of testimony, questioning of witnesses or a transcription of the argument.
REPRESENTATION You may proceed with an appeal to the Board without the assistance of an attorney or other representative. However, should you elect to have an attorney, union representative or other representative appear on your behalf, you must authorize such representation in writing, either by completing the relevant portions of the Appeal Form AB-1, or submitting a separate signed statement of authorization.
All fees for representative services performed in connection with an appeal before the Board require prior approval by the Board. Disbursements for such items as travel, telephone calls, postage, etc. do not require approval; they are a matter for adjustment between the representative and client. An application for approval of a fee for services should not be submitted to the Board until after the appeal is closed. The fee application must be accompanied by an itemized statement of the time and character of work performed solely in connection with the appeal and 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 for comment. The payment of any fee approved by the Board is the responsibility of the appellant. For services performed for work before the OWCP, a separate fee application must be submitted to OWCP for approval.
ASSISTANCE OF THE CLERK’S OFFICE Please be aware that the Clerk’s office cannot assist you with any legal research, advice as to the issues on appeal or arguments that you may want considered by the judges or date when a decision will be issued. The assistance of the Clerk’s office is limited to procedural matters. You may find copies of Board decisions online, through various reporting services or at depository libraries.