FECA BULLETIN NO. 99-12 New Regulations - Reconsiderations and Reviews by the Director; Reviews by the Employees' Compensation Appeals Board

FECA BULLETIN NO. 99-12 Issue Date: January 4, 1999 _________________________________________________ Expiration Date: January 3, 2000 _________________________________________________ Subject: New Regulations - Reconsiderations and Reviews by the Director; Reviews by the Employees' Compensation Appeals Board Background: The changes to the regulations included additional information regarding the reconsideration process and reviews by the Director on his or her own motion under § 8128 of the FECA. The major substantive change implemented in this area concerns the merit review on the Director's own motion. The new regulations state at § 10.610 that a decision to review on this basis is not subject to a request or petition and that none shall be entertained. That is, the Office has full discretionary authority in these matters, and the claimant cannot request review on the Director’s own motion. In § 10.610(a) the regulations point out that a decision to review or not to review on the Director’s own motion is also not subject to review by the ECAB, nor can it be the subject of a reconsideration or a hearing request. On the other hand, any decision which results from a review on the Director’s own motion can be subject to whichever of the three avenues of appeal the claimant selects, including reconsideration, hearing or review by the Employees’ Compensation Appeals Board. Other changes include an extension of the period (from 15 to 20 days) for comment by the employer on the claimant’s application for reconsideration and any additional evidence the claimant submits in support of his or her application. This is balanced by allowing the claimant 20 days (instead of 15) to respond to any comments on his or her application made by the employer. The only other substantive change is the fact that the new regulations on the reconsideration process and review by the Director are explained in six sections [§10.605 through §10.610] of Subpart G - Appeals Process, making the discussion more thorough. Comparatively, the previous regulations included these topics in one section [§10.138] of Subpart B - Notice of Injury and Claim for Compensation, Administrative Procedures. The six sections provide much greater detail concerning the definition of reconsideration by the Office [§10.605], the procedure for requesting a reconsideration [§10.606] along with the time limits for doing so [§10.607]. These sections go on to explain how the Office evaluates the evidence submitted by the claimant to determine whether it warrants a merit review [§10.608], and if so, whether, upon review, the evidence or arguments presented are sufficient to warrant modification of the previous merit decision [§10.609]. The last of the six sections [§10.610] addresses the process of review on the Director’s own motion and is discussed above. With regard to requests for review by the Employees' Compensation Appeals Board, the changes include a more in-depth discussion of appeals to the Board. Specifically, at §10.625 the new regulations address the types of decisions which may be appealed to the Board. Also in Subpart G at §10.626, the new regulations specify which entity has jurisdiction (the Board or the district office) over the cases while they are on appeal based on the issue(s) being addressed by ECAB in its review. Reference: 20 CFR Part 10, Subpart G, Sections 10.605 through 10.610; Sections 10.625 and 10.626; Federal (FECA) Procedure Manual, Chapters 2-1600 (paragraphs 2.c. and 2.d.), 2-1602 and 2-1603; FECA Circular 99-04 Purpose: To focus on the part of the new regulations which addresses the reconsideration process and reviews on the Director's motion, and to point out that the deadline has been extended for the employing agency to submit comments on the application for review, and for the claimant to respond to any comments submitted. Applicability: Regional Directors, District Directors, Claims Examiners, Supervisory Claims Examiners, and appropriate National Office personnel. Action: 1. The training on the new regulations should include emphasis on the discussion in §10.610 which addresses reviews on the Director’s own motion. Most importantly, the CEs should be clear on the point that pursuant to this section a claimant may not request review on the Director’s own motion. 2. The district offices should also ensure that any pre-formatted letters used for requesting comments or responses to comments are amended to reflect the changes from 15 to 20 days for submission of comments and responses. 3. Attachments 1, 2, and 3 correspond to Exhibits 2, 3, and 4 of Chapter 2-1602 and are replacements until such time as the FECA Procedure Manual is updated to incorporate these changes. They contain the corrected address for the Employees’ Compensation Appeals Board and a corrected reference to the new regulations at 20 CFR 10.607(a) pertaining to timely requests for reconsideration. 4. Training for all claims personnel which focuses on Subpart G-Appeals Process (changes in the appeals process pursuant to the new regulations) should be accomplished within 30 days of receipt of this FECA Bulletin. Disposition: This Bulletin should be retained until incorporated into the Federal (FECA) Procedure Manual, or otherwise superseded. THOMAS M. MARKEY Director for Federal Employees’ Compensation Distribution: List No. 1--Folioviews Groups A and D (Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses) Attachment 1 SAMPLE LETTER DENYING AN UNTIMELY REQUEST FOR RECONSIDERATION Dear CLAIMANT NAME: This is in reference to your letter dated DATE OF LETTER requesting reconsideration of our decision dated DATE OF LAST MERIT DECISION. Your letter was postmarked [OR dated] on DATE. As provided by 20 CFR 10.607(a), we will not review a decision unless the request to do so is filed within one year of the date of that decision. Accordingly, your request for reconsideration is hereby denied because it was not postmarked [OR dated] within the one-year time limit. We have evaluated the evidence you submitted in support of your request to see if it constitutes clear evidence of error [as described in § 10.607(b)] in OWCP's original decision. Such error would require the OWCP to reopen the case even though your request for reconsideration is untimely. However, an evaluation of the evidence you submitted does not show clear evidence of error on the part of OWCP. If you disagree with this decision, you have the right to appeal to the Employees' Compensation Appeals Board for review of the decision. This is your only right of appeal. No new evidence may be submitted to the Board. Request for review by the Appeals Board should be made within 90 days from the date of this decision and should be addressed to Employees' Compensation Appeals Board, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2609, Washington, D.C. 20210. For good cause shown, the Appeals Board may waive the failure to file within 90 days if application is made within one year from the date of the decision being appealed. Sincerely, SENIOR CLAIMS EXAMINER Attachment 2 SAMPLE LETTER DENYING AN APPLICATION WHICH IS PRIMA FACIE INSUFFICIENT TO WARRANT REVIEW OF THE CASE Dear CLAIMANT NAME: We have reviewed your letter of DATE OF LETTER requesting reconsideration of our decision dated DATE OF DECISION. Please refer to the information which accompanied the original decision. To require the Office to reopen your case, you must clearly identify the grounds upon which reconsideration is being requested. In addition, you must either submit relevant evidence not previously considered, or present legal arguments not previously considered. Because your letter did not include new and relevant evidence or new legal arguments, it is insufficient to warrant a review of our prior decision at this time. Any future request for reconsideration must be made within one year from the original decision and must be accompanied by statements or evidence as described above. If you disagree with this specific decision, namely, our denial to review our prior decision, you have the right to appeal to the Employees' Compensation Appeals Board for review of the decision. This is your only right of appeal. No new evidence may be submitted to the Appeals Board. A request for review by the Appeals Board should be made within 90 days from the date of this decision. It should be addressed to Employees' Compensation Appeals Board, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2609, Washington. D.C. 20210. For good cause shown, the Appeals Board may waive the failure to file within 90 days if application is made within one year from the date of the decision being appealed. Sincerely, SENIOR CLAIMS EXAMINER Attachment 3 SAMPLE NOTICE OF THE ONE-YEAR TIME LIMITATION FOR REQUESTING RECONSIDERATION FEDERAL EMPLOYEES' COMPENSATION ACT APPEAL RIGHTS If you disagree with this decision denying reconsideration of your case, you may request review by the Employees' Compensation Appeals Board. No new evidence may be submitted to the Board. Request for review by the Appeals Board should be made within 90 days from the date of this decision and should be addressed to Employees' Compensation Appeals Board, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2609, Washington, D.C. 20210. For good cause shown, the Appeals Board may waive the failure to file within 90 days if application is made within one year from the date of the decision being appealed. NOTICE Section 10.607(a) of Title 20 of the Code of Federal Regulations, which concerns the reconsideration of a decision by the Office of Workers' Compensation Programs (OWCP), provides that OWCP will not review a decision denying or terminating a benefit unless the claimant's request for review is filed within one year of that decision. This provision of the earlier regulations became effective June 1, 1987. Therefore, even if the decision in your case was issued prior to June 1, 1987 and included the right to reconsideration, without specifying a time limit, a request for reconsideration of that decision will be denied if it is not made within one year from the date of this notice.

All pages  © Copyright 1997-99 FedupFeds,  http://fedupfeds.org  ALLRIGHTS RESERVED.    All pages in this website may be freely printed, copied, and distributed only so long as all pages are complete as is with all FedupFeds logos, copyrights, and website addresses included intact on the copies.  FedupFeds  Box 810864  Dallas, TX 75381-0864.  Include SASE if reply requested .