FECA
BULLETIN NO. 99-14 (click on that to go to original Infobase site, difficult to
navigate)
Issue Date: January 4, 1999
_________________________________________________
Expiration Date: Janaury 3, 2000
_________________________________________________
Subject: New Regulations--Representative Fees
Background: On January 4, 1999, the new Federal Employees'
Compensation Act Regulations became final. Subpart H of these
regulations contains a discussion concerning who may serve as a
representative and how fees will be paid.
The regulations now specify that federal employees may not serve as
representatives except in instances where the person they are
representing is an immediate family member, or where the representative
is an officially sanctioned union official charging no fee or gratuity for his
or her services.
Additionally, attorney fee applications have been streamlined. Any fee
application accompanied by a signed statement from the claimant
agreeing to the fee will be approved. Only where a claimant disagrees
with the amount of the fee will further action be taken.
Reference: 20 CFR 10.700 through 10.703
Purpose: To inform OWCP staff of new regulations regarding
representatives.
Applicability: Claims Examiners, Senior Claims Examiners, Supervisors,
Fiscal Personnel, Technical Assistants and Systems Personnel, and
Hearing Representatives
Action:
1. All claimants and the representatives they retain will now be advised
via newly revised form CA-0143 (Attachment 1) of procedures relating
to fee applications.
2. Claims Examiners must now be alert for any federal employee
functioning as a representative. Should any documentation be received
identifying a representative as a federal employee, the claims examiner
should draft correspondence inquiring as to the nature of the relationship
between the claimant and representative, and whether remuneration is
involved for the representative’s services. Attachment 2 is a sample letter
for this purpose.
3. In cases where a representative has submitted an itemized
billing and the fees have been agreed to, the fee should be approved.
Note that to be approvable, the fee application must contain:
a. the representative’s hourly rate
b. the number of hours worked
c. the specific work performed
d. a total of charges exclusive of administrative costs
e. concurrence from the claimant
While this is substantially similar to the requirements prior to the
regulatory change effective January 4, 1999, OWCP staff are no longer
required to evaluate services provided or the hourly rate at which they
were charged in order to determine the propriety of the charges where a
claimant has concurred with them. Instead, the fees should be approved,
and this should be noted via use of form CA-1066, which has been
newly revised to reflect these regulatory changes. A copy of this letter is
at Attachment 3 for your reference. Note that this is a formal decision,
and must be completed at an appropriate signature level as per current
procedure and within current limits (up to $10,000 may be issued by
claims examiners or senior claims examiners, over $10,000 must be
issued by the District Director).
4. Should an application be submitted which does not contain any item
cited in action item 3(a) through (e), above, it will be returned as
incomplete without comment. Attachment 4 is a sample letter for this
purpose.
5. If a representative submits a fee request with which his or her client
does not concur, OWCP must review the request and issue a decision
either approving or denying it. In order to reach this decision, you must
provide a copy of the request to the claimant and ask him or her to
provide any additional information in support of his or her objection to
the fee within 15 days. After those 15 days, OWCP must evaluate the
fee request to determine whether the amount of the fee is substantially in
excess of the value of services received. To do this, you must consider:
a. the usefulness of the representative’s services
b. the nature and complexity of the claim
c. the actual time spent by the representative
d. customary local charges for similar services.
After fully considering these items, a formal decision must be issued
outlining the fee approved and the reasons for denial of any portion of the
fee as requested. This decision should be issued at the Senior Claims
Examiner level.
Training on these items should be conducted within 30 days of receipt of
this bulletin.
Disposition: Retain until incorporated into the Federal (FECA) Procedure
Manual.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution:List No. 3--Folioviews Groups A, B, C, and D
(All FECA Employees)
Attachment 1: Form CA-0143 and Form CA-1055
File Number:
Date of Injury:
Employee:
Dear :
This will acknowledge the receipt of a statement from the above-named
employee designating you to pursue his/her case before the Office of
Workers' Compensation Programs (OWCP).
The OWCP's procedures relative to representatives' fee applications,
copy enclosed are designed to reduce or eliminate the timelag between
case approval/payment and the decision in respect to the fee request. If
a representative submits a fee application in accordance with the
enclosed instructions, it will be acted upon at the same time the case is
adjudicated.
Sincerely,
Claims Examiner
CA0143
INSTRUCTIONS RELATING TO REPRESENTATIVE FEE
APPLICATIONS
The Federal Employees' Compensation Act, 5 U.S.C. 8101 et seq.,
provides that “A claim for legal or other services furnished in respect to a
case, claim, or award for compensation under this subchapter is valid
only if approved by the secretary.” (5 U.S.C. 8127(b))
In each case where a representative's fee is desired, an application for
approval of the fee must be submitted to the Office of Workers'
Compensation Programs (OWCP). In order to eliminate the time lag
between case approval/payment or disallowance and a formal ruling on
the fee application, representatives should submit requests for fee
approval at the time they submit the final evidence necessary for
adjudication of their client's claim. Each fee application must include a
complete itemized statement describing the necessary services rendered,
including an estimate of the time required to review the award and
communicate with the client. The itemization shall include the following:
(a) The dates that services began and ended, in addition to all dates
conferences were held, documents or letters prepared, telephone calls
made, etc.
(b) A description of each service rendered with the amount of time
spent on each type of service.
(c) The total amount of the fee which the representative desires for
services performed
(d) The hourly rate at which services were provided.
(e) The amount, if any, of the fee already collected or placed on
escrow. If any portion of the requested fee has been placed on escrow,
a copy of the escrow agreement must accompany the application for fee
approval.
In addition, the representative is responsible for submitting a statement
from the client, commenting on the application and the reasonableness
and appropriateness of the fee requested. These comments are to be
based upon the claimant's review of the fee request and itemization,
which should be supplied to the client. The representative should submit
this statement with the fee request. In those instances where this is not
possible, the representative must advise of the manner and date on which
the client was requested to submit such a statement. The representative
should submit with the fee application, a copy of the communication sent
to the client.
Where the representative has submitted a fee request in accordance with
these requirements, a decision relative to the fee request will be issued.
If any information as listed above is not provided, the fee request will be
returned for proper completion. The collection of the fee is a matter
between the representative and the claimant.
No claim for a fee for services is valid unless prior approval is obtained
from the OWCP. (20 CFR 10.702) Collection of a fee prior to such
approval is a violation of 18 U.S.C. 292.
CA0155 Page 1
Public Burden Statement
You do not have to respond to this collection unless it displays a currently
valid OMB number. We estimate that it will take an average of 1-1/2
hours to complete this information collection including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
information. If you have any comments regarding these estimates or any
other aspect of this survey, including suggestions for reducing this burden,
send them to the Office of Workers’ Compensation Programs,
Department of Labor, Room S-3229, 200 Constitution Avenue, NW,
Washington, DC 20210.
DO NOT SEND THE COMPLETED FORM TO THIS OFFICE.
CA0155 Page 2
Attachment 2: Sample Letter
File Number:
Employee:
Dear :
We have received information that you are currently represented by
REPRESENTATIVE’S NAME. It appears that this person may be a
Federal employee. If this is the case, please note that under 18 U.S.C.
205 and 208, a Federal employee may only represent another injured
Federal worker in regard to that worker’s claim under the Federal
Employees’ Compensation Act (FECA) if the representative is either:
a. an immediate family member, defined as a spouse, child, parent,
or sibling, and then only if no fee is charged, or
b. a union representative, and then only if an officially sanctioned
union official also charging no fee or gratuity.
In light of this, it is necessary for you to provide a statement as to the
nature of your relationship with your representative, so that his/her ability
to represent you in relation to your FECA claim may be determined. If
your representative is not a Federal employee, please provide a signed
statement to that effect.
We will be unable to correspond with your representative regarding your
case until we receive this information and reach a decision as to the
appropriateness of this representative relationship. Should you have any
questions, please feel free to contact me.
Sincerely,
Claims Examiner
Attachment 3: Form CA-1066
File Number:
Date of Injury:
Employee:
Dear :
This is in reference to your application for approval of a fee for services
rendered in the compensation case of CLAIMANT NAME.
We have approved your fee of $XXXX.XX as requested for services
rendered from 00/00/0000 to 00/00/0000. This fee has been approved
because the claimant has not contested the reasonableness of the amount
of the fee. Payment of the approved fee is the claimant’s responsibility
and HE/SHE is so advised by copy of this letter.
Pursuant to 5 U.S.C. 8127 and 20 CFR 10.702, a claimant is legally
liable for only those fees for service that have been approved by this
office. With respect to services rendered in this claim, any person who
requests or receives a fee, gratuity, or other consideration which has not
been approved by this office, may be subject to criminal prosecution.
If either party disagrees with this decision, either or both have the right to
appeal to the Employees’ Compensation Appeals Board (ECAB) for
review of the decision. The claimant may also request hearing or
reconsideration. These appeal rights are described on the attached sheet.
Sincerely,
Claims Examiner
Enclosure: ENAPPC
CA1066
FEDERAL EMPLOYEES' COMPENSATION ACT
APPEAL RIGHTS
READ THIS NOTICE CAREFULLY AND DECIDE WHAT
ACTION YOU WISH TO REQUEST: REVIEW BY THE
EMPLOYEES’ COMPENSATION APPEALS BOARD (ECAB);
HEARING (Oral or Written); or RECONSIDERATION.
Be sure to send your request to the right address.
You may not request more than one form of appeal at a time.
REVIEW BY EMPLOYEES’ COMPENSATION APPEALS
BOARD (ECAB)
CLAIMANT AND REPRESENTATIVE
If you believe that all available evidence has been submitted, you have the
right to appeal to the Employees' Compensation Appeals Board for
review of the decision. The ECAB will review only the evidence of
record, and no new evidence may be submitted.
Any request for review by the ECAB should be made within 90 days
from the date of this decision. Send it to:
Employees’ Compensation Appeals Board
U.S. Department of Labor
200 Constitution Ave., N.W., Room N-2609
Washington, D. C. 20210
The ECAB may waive the failure to file within 90 days if you request
review within one year from the date of this decision and show a good
reason for the delay.
If you (the claimant) should request a hearing or reconsideration as
described below, you may still request review by the ECAB. The
90-day period for requesting review by the ECAB will begin on the date
of the hearing or reconsideration decision.
HEARING (CLAIMANT ONLY)
If your injury occurred on or after July 4, 1966, and you have not
requested reconsideration (see below), you may request one of the
following actions:
Oral hearing. You will be able to present oral and written
evidence in further support of your claim. The hearing will be informal
and will be held in your area. You may authorize a representative for this
hearing in writing should you choose.
Review of the written record. You may submit written evidence,
but you will not be asked to attend or give oral testimony. You will have
this review instead of an oral hearing. Any additional written evidence
you want to submit must be sent with your request for review.
ENAPPC Page 1
OWCP hearing representatives conduct both oral hearings and reviews
of the written record. To request an oral hearing or a review of the
written record, you must write to:
Branch of Hearings and Review
Office of Workers' Compensation Programs
P. O. Box 37117
Washington, D. C. 20013-7117
State clearly whether you want an oral hearing or a review of the written
record. Your request must be postmarked within 30 days of the date of
this decision.
You will have the right to request reconsideration or ECAB review of the
hearing representative’s decision if you disagree with it.
You are not required to request a hearing as the first step in the appeal
process. However, if you request reconsideration, you will not be
entitled to an oral hearing or review of the written record (see 5 U.S.C.
8124(b)(1)).
RECONSIDERATION (CLAIMANT ONLY)
If you have more evidence or legal arguments which you believe apply to
your case, you may ask the OWCP district office to reconsider this
decision. Such a request must be made within one year of the date of this
decision. The request should clearly state your grounds for requesting
reconsideration. It should also include evidence not submitted before,
such as medical reports or sworn statements, or legal arguments. The
new evidence or legal argument should apply directly to the issue
addressed by this decision.
Send your request for reconsideration and your new evidence or
argument to the district office at the address shown on the letter
conveying this decision. So that your new evidence is independently
evaluated, your case will be reconsidered by OWCP staff other than
those who made this decision.
ENAPPC Page 2
Attachment 4: Sample Letter
File Number:
Date of Injury:
Employee:
Dear :
We have received your recent submission of a fee request for services
provided to CLAIMANT NAME.
Upon review of this package, it is noted that it is incomplete because it
does not contain LIST MISSING ITEM(S).
Per 20 CFR 10. 703(a)(2), the Office of Workers’ Compensation
Programs cannot consider an incomplete fee request. As such, your
submission is being returned to you. Please provide the missing item(s)
and resubmit this request.
Should you have any questions regarding this matter, please contact me.
Sincerely,
Claims Examiner
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