|November 4, 2008|
U.S. DEPARTMENT OF LABOR
Employees' Compensation Appeals Board
Washington, D.C. 20210
The Employees' Compensation Appeals Board (Board) 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.
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. An application for Board review should be filed on the Board’s AB-1 (Application for Review), but the Board will accept an informal application if it gives the applicant’s full name, the OWCP’s case file number, the date and place of injury, the date of the most recent OWCP decision, and 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.
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. Either the Director or the appellant may request 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 and for appeals from OWCP decisions issued prior to November 19, 2008, you may request oral argument anytime prior to issuance of the Board’s decision.
Please note that under both the old and new Rules: (1) Oral argument is held before the Board only in Washington, D.C.; (2) the Board does not reimburse any costs associated with attending oral argument; (3) the Board exercises appellate review of the OWCP’s final decision and new evidence may not be introduced at argument; (4) oral argument must be confined to the evidence of record; and (5) there is no provision for the introduction of testimony, questioning of witnesses or a transcription of the argument.
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 read the case record and review 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.
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.
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.
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. 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.