One agency objected to the proposal that a hearing representative may direct that the hearing be conducted by telephone or teleconference. A labor organization said that this should be a recommendation but not done at the hearing representative's option. Neither the agency nor the labor organization gives a basis for its objection.OWCP believes that this option will allow it to better control an ever-increasing workload and to provide hearings at an earlier time than it otherwise could, without limiting claimants' rights in any way.

Sec. 10.615 What is a hearing?

One commenter noted that the claimant could ask for a change to an oral hearing after the case was far along in the written review process, thus undercutting efficiency and allowing for purposeful delays. The point is well taken, and the time frame for such requests has been shortened to 30 days after the Branch of Hearings and Review acknowledges the request.

Several comments about time frames were received. One commenter noted that the time frames set forth in Sec. 10.617(f) for submitting evidence were confusing and potentially never-ending, because they would allow new evidence to be submitted up to the date of the decision, which in turn would require comments by the agency or the employee, and so forth. The final rules have been changed to clarify that evidence in cases where oral hearings are held is to be submitted up to 30 days after the date on which the hearing is held (unless the hearing representative specifically grants an extension of time).

Sec. 10.617 How is an oral hearing conducted?

(a) The hearing representative retains complete discretion to set the time and place of the hearing, including the amount of time allotted for the hearing, considering the issues to be resolved.

(b) Unless otherwise directed in writing by the claimant, the hearing representative will mail a notice of the time and place of the oral hearing to the claimant and any representative at least 30 days before the scheduled date. The employer will also be mailed a notice at least 30 days before the scheduled date.

(c) The hearing is an informal process, and the hearing representative is not bound by common law or statutory rules of evidence, by technical or formal rules of procedure or by section 5 of the Administrative Procedure Act, but the hearing representative may conduct the hearing in such manner as to best ascertain the rights of the claimant. During the hearing process, the claimant may state his or her arguments and present new written evidence in support of the claim.

(d) Testimony at oral hearings is recorded, then transcribed and placed in the record. Oral testimony shall be made under oath.

(e) OWCP will furnish a transcript of the oral hearing to the claimant and the employer, who have 20 days from the date it is sent to comment. Any comments received from the employer shall be sent to the claimant, who will be given an additional 20 days to comment from the date OWCP sends any agency comments.

(f) The hearing remains open for the submittal of additional evidence until 30 days after the hearing is held, unless the hearing representative, in his or her sole discretion, grants an extension.

Only one such extension may be granted. A copy of the decision will be mailed to the claimant's last known address, to any representative, and to the employer.

(g) The hearing representative determines the conduct of the oral hearing and may terminate the hearing at any time he or she determines that all relevant evidence has been obtained, or because of misbehavior on the part of the claimant and/or representative at or near the place of the oral presentation.

With respect to the agencies' comments that 15 days is not enough time to adequately review and analyze the transcript (Sec. 10.617(e)), OWCP recognizes that this time frame has been problematical and has therefore extended the period for response to 20 days. For consistency, the time frame for claimants to respond to agency comments has also been changed to 20 days.

One employing agency noted that the agency's role in teleconferenced hearings and the number of representatives an agency may send to the hearing needed to be clarified (another agency made the latter point as well). Section 10.621 has been changed to allow more than one representative, where appropriate.

Sec. 10.621 What is the employer's role when an oral hearing has been requested?

(a) The employer may send one (or more, where appropriate) representative(s) to observe the proceeding, but the agency representative cannot give testimony or argument or otherwise participate in the hearing, except where the claimant or the hearing representative specifically asks the agency representative to testify.

The provision prohibiting cancellations of hearings drew considerable criticism from four labor organizations and three commenters, and support from one Federal agency. Most of the comments suggested that the blanket prohibition against postponements was too harsh and suggested that postponements be allowed under ``exceptional circumstances.''

OWCP is concerned about providing any opportunity to further delay the hearing process or to add yet another issue for potential review. Nevertheless, it is recognized that very narrow circumstances exist which are truly out of the control of the claimant and would justify a postponement. Accordingly, Sec. 10.622(b) has been changed to allow a postponement for exceptional circumstances, defined in Sec. 10.622(c) as medically documented non-elective hospitalization of the claimant, or death of the claimant's parent, spouse or child.

One labor organization commented on the period for rescheduling a hearing. However, nothing in this section of the regulations refers to time periods.

Sec. 10.622 May a claimant withdraw a request for or postpone a hearing?

(a) The claimant and/or representative may withdraw the hearing request at any time up to and including the day the hearing is held, or the decision issued. Withdrawing the hearing request means the record is returned to the jurisdiction of the district office and no further requests for a hearing on the underlying decision will be considered.

(b) OWCP will entertain any reasonable request for scheduling the oral hearing, but such requests should be made at the time of the original application for hearing. Scheduling is at the sole discretion of the hearing representative, and is not reviewable. Once the oral hearing is scheduled and OWCP has mailed appropriate written notice to

the claimant, the oral hearing cannot be postponed at the claimant's request for any reason except those stated in paragraph (c) of this section, unless the hearing representative can reschedule the hearing on the same docket (that is, during the same hearing trip). When the request to postpone a scheduled hearing does not meet the test of

paragraph (c) of this section and 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. In the alternative, a teleconference may be substituted for the oral hearing at the discretion of the hearing representative.

(c) Where the claimant is hospitalized for a reason which is not elective, or where the death of the claimant's parent, spouse, or child prevents attendance at the hearing, a postponement may be granted upon proper documentati

Sec. 10.609 How does OWCP decide whether new evidence requires modification of the prior decision?

When application for reconsideration is granted, OWCP will review the decision for which reconsideration is sought on the merits and determine whether the new evidence or argument requires modification of the prior decision.

(a) After OWCP decides to grant reconsideration, but before undertaking the review, OWCP will send a copy of the reconsideration application to the employer, which will have 20 days from the date sent to comment or submit relevant documents. OWCP will provide any such comments to the employee, who will have 20 days from the date the comments are sent to him or her within which to comment. If no comments are received from the employer, OWCP will proceed with the merit review of the case.

(b) A claims examiner who did not participate in making the contested decision will conduct the merit review of the claim. When all evidence has been reviewed, OWCP will issue a new merit decision, based on all the evidence in the record. A copy of the decision will be provided to the agency.

The existing rule, unchanged in the proposal, is that the claimant has a right to reconsideration of any decision if requested within one year of the date of the last merit decision. Three labor organizations noted that the proposal does not reflect OWCP's practice of including ECAB decisions among the ``merit decisions'' the date from which the one year begins to run.

Any suggestion that OWCP should review or reconsider an ECAB decision is inappropriate. OWCP and ECAB are separate and distinct entities. The ECAB is the highest appellate authority under the FECA and its decisions are binding on OWCP. Since OWCP has no authority to review decisions of the ECAB, OWCP has interpreted its limitation provision as liberally as possible, such that a merit decision of the ECAB will renew the one-year time period within which a claimant may request reconsideration before OWCP, with the date of the ECAB's merit decision serving as the new starting point from which the one-year period will run. OWCP will continue to do so, but because ECAB decisions cannot be reviewed by anyone, including OWCP, the language in this section has not been changed.

Sec. 10.607 What is the time limit for requesting reconsideration?

(a) An application for reconsideration must be sent within one year of the date of the OWCP decision for which review is sought. If submitted by mail, the application will be deemed timely if postmarked by the U.S. Postal Service within the time period allowed. If there is no such postmark, or it is not legible, other evidence such as (but not limited to) certified mail receipts, certificate of service, and affidavits, may be used to establish the mailing date.

(b) 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. The application must establish, on its face, that such decision was erroneous.

(c) The year in which a claimant has to timely request reconsideration shall not include any period subsequent to an OWCP decision for which the claimant can establish through probative medical evidence that he or she is unable to communicate in any way and that his or her testimony is necessary in order to obtain modification of the decision.

Sec. 10.618 How is a review of the written record conducted?

(a) The hearing representative will review the official record and any additional evidence submitted by the claimant and by the agency. The hearing representative may also conduct whatever investigation is deemed necessary. New evidence and arguments are to be submitted at any time up to the time specified by OWCP, but they should be submitted as soon as possible to avoid delaying the hearing process.

(b) The claimant should submit, with his or her application for review, all evidence or argument that he or she wants to present to the hearing representative. A copy of all pertinent material will be sent to the employer, which will have 20 days from the date it is sent to comment. (Medical evidence is not considered ``pertinent'' for review and comment by the agency, and it will therefore not be furnished to the agency. OWCP has sole responsibility for evaluating medical evidence.) The employer shall send any comments to the claimant, who will have 20 more days from the date of the agency's certificate of service to comment.  Another commenter noted that the service provisions in Sec. 10.618(b) represent a change from the current practice of having the agency serve their comments directly on the claimant (or the claimant's representative, if any) and provide OWCP with a certification of service. That section has been slightly modified to reflect this practice.

Representative

Sec. 10.701 Who may serve as a representative?A claimant may authorize any individual to represent him or her in regard to a claim under the FECA, unless that individual's service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208). A Federal employee may act as a representative only:

(a) On behalf of immediate family members, defined as a spouse, children, parents, and siblings of the representative, provided no fee or gratuity is charged; or

(b) While acting as a union representative, defined as any officially sanctioned union official, and no fee or gratuity is charged.

Sec. 10.702 How are fees for services paid?

A representative may charge the claimant a fee and other costs associated with the representation before OWCP. The claimant is solely responsible for paying the fee and other charges. The claimant will not be reimbursed by OWCP, nor is OWCP in any way liable for the amount of the fee.

Administrative costs (mailing, copying, messenger services, travel and the like, but not including secretarial services, paralegal and other activities) need not be approved before the representative collects them. Before any fee for services can be collected, however, the fee must be approved by the Secretary. (Collecting a fee without this approval may constitute a misdemeanor under 18 U.S.C. 292.)

Sec. 10.703 How are fee applications approved?

(a) Fee Application. (1) The representative must submit the fee application to the district office and/or the Branch of Hearings and Review, according to where the work for which the fee is charged was performed. The application shall contain the following:

(i) An itemized statement showing the representative's hourly rate, the number of hours worked and specifically identifying the work performed and a total amount charged for the representation (excluding administrative costs).

(ii) A statement of agreement or disagreement with the amount charge, signed by the claimant. The statement must also acknowledge that the claimant is aware that he or she must pay the fees and that OWCP is not responsible for paying the fee or other costs.

(2) An incomplete application will be returned with no further comment.

(b) Approval where there is no dispute. Where a fee application is accompanied by a signed statement indicating the claimant's agreement with the fee as described in paragraph (a)(1)(ii) of this section, the application is deemed approved.

(c) Disputed requests. (1) Where the claimant disagrees with the amount of the fee, as indicated in the statement accompanying the submittal, OWCP will evaluate the objection and decide whether or not to approve the request. OWCP will provide a copy of the request to the claimant and ask him or her to submit any further information in support of the objection within 15 days from the date the request is forwarded. After that period has passed, OWCP will evaluate the information received to determine whether the amount of the fee is substantially in excess of the value of services received by looking at the following factors:

(i) Usefulness of the representative's services;
(ii) The nature and complexity of the claim;
(iii) The actual time spent on development and presentation of the claim; and
(iv) Customary local charges for similar services.
(2) Where the claimant disputes the representative's request and files an objection with OWCP, an appealable decision will be issued.

A labor organization objected to the removal of the language found at current Sec. 10.110(a) concerning the employee's burden of proof, and suggested that it be restored. Most of the material in the current rule is covered in proposed Sec. 10.115, but the sentences pertaining to the belief of the claimant and emergence of a condition during a period of Federal employment with respect to causal relationship have been added to proposed Sec. 10.115(e), and the latter part of that paragraph as proposed has been relettered (f).

Sec. 10.115 What evidence is needed to establish a claim?

(e) The medical condition for which compensation or medical benefits is claimed is causally related to the claimed injury, disease or death. Neither the fact that the condition manifests itself during a period of Federal employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship.