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CHAPTER 4-700 - APPEALS

1. Purpose and Scope. This Chapter describes DLHWC procedures and responsibilities with respect to appeals to the Benefits Review Board (BRB) and to the court of appeals.

2. Authority. The regulations governing appeals to the BRB may be found at 20 C.F.R. sections 802.201 to .411. Section 21(b) of the Act pertains to the establishment and authority of the BRB. Section 21(c) of the Act relates to review of the order of the BRB.

3. Time Limitations. Appeals may be taken directly to the BRB by filing a notice of appeal directly with the BRB and by submitting to the BRB a petition for review of a decision or order. The notice of appeal must be filed with the BRB within thirty days of the filing of the decision or order which has been filed in the office of the DD. (20 C.F.R. section 802.205.) (But see, Nealon v. California Stevedore & Ballast Co., 996 F.2d 966, 27 BRBS 31(CRT) (9th Cir. 1993) wherein the court found that a compensation order must be served on the parties before it may be considered filed.)

4. Procedures.

a. Notice of Appeal. Notice of appeal shall be sent by mail or otherwise directly to the Clerk of the Board, Benefits Review Board, U.S. Department of Labor, Washington, DC. A copy of the appeal shall be served on the DD who filed the decision or order, and upon all other parties in interest. Proof of service of the notice of appeal shall be included with the notice sent to the BRB (20 C.F.R. section 802.204).

b. Transmittal of Record. After receipt of the notice of appeal, the DD having custody of the record shall, upon request of the BRB, send it to the Clerk of the Board. Such record shall include the transcript(s) of all formal proceedings with exhibits, and decisions, and orders in the case. (20 C.F.R. section 802.209.)

5. Decision of the Board.

a. The BRB shall issue a written decision after the completion of review proceedings before the Board. The transmittal of the decision of the BRB shall indicate the availability of judicial review of such decisions under section 21(c) of the Act.

b. The original of the decision shall be filed with the Clerk of the Board. A copy of the Board's decision shall be sent by certified mail or served personally on all parties to the appeal and the Director, OWCP. The record on appeal, together with a transcript of any oral proceedings, any briefs or documents filed with the BRB, and a copy of the decision shall be returned to the appropriate DD for filing.

c. Proof of service of Board decisions shall be certified by the Clerk of the Board.

d. A case may be remanded by the BRB or by a court to a DD with instructions to take such action as is ordered. (20 C.F.R. section 802.404.)

e. Reconsideration of the BRB decision may be initiated by submitting a request in writing in accordance with 20 C.F.R. section 802.406.

6. Judicial Review.

a. Within sixty days after a final order has been filed by the BRB pursuant to 20 C.F.R. section 802.403(b), any party adversely affected or aggrieved by such decision may take an appeal to the appropriate U.S. Court of Appeals pursuant to section 21(c) of the Act.

b. The Director, OWCP, as designee of the Secretary of Labor, is responsible for the administration and enforcement of the statutes listed in 20 C.F.R. section 802.101(b), and shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings conducted to section 21(c) of the Act.

7. Action by the DD. Control of referred cases, filing and service of compensation orders, follow-up, and recording shall be in accordance with PM 4-600.7 to .9; inquiries regarding cases pending before the BRB should be acknowledged and forwarded to the Clerk of the BRB for response.