TABLE OF CONTENTS
Paragraph and Subject Page Date Trans. No.
Chapter 2-1800 FAB Decisions
Table of Contents. . . . . . . . i 01/13 13-02
1 Purpose and Scope. . . . . . . . 1 01/13 13-02
2 Final Decisions. . . . . . . . . 1 01/13 13-02
3 Preparation of Final Decisions . 4 01/13 13-02
4 Remand Orders. . . . . . . . . . 8 01/13 13-02
5 Administrative Closure 12 01/13 13-02
6 Claimant Rights Following the
Issuance of FAB Final Decisions 14 01/13 13-02
7 Alternative Filing, Part E . . . 19 01/13 13-02
1 Sample Final Decision . . . . .
2 Medical Benefits Letter . . . .
3 Sample Remand Order. . . . . .
4 Sample Denial of Request for
Reconsideration (No New
Evidence or Argument Submitted)
5 Sample Denial of Request for
Reconsideration (New Evidence
and/or New Argument Submitted)
6 Sample Cover Letter,
Alternative Filing . . . . .
1. Purpose and Scope. The Act and its implementing regulations provide for administrative review of all recommended decisions (RDs). This Chapter describes the process by which the Final Adjudication Branch (FAB) performs that review and issues a Final Decision (FD) or Remand Order on claims filed pursuant to the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). This chapter also describes the FAB process following a claimant’s request for reconsideration of a FD.
2. Final Decisions. The FAB CE/HR reviews all evidence of record and the RD. Based upon that review, the FAB CE/HR issues an independent written decision addressing the appropriateness of the RD outcome. A final decision of FAB may accept the findings presented in the RD, whether the RD awards or denies benefits, or reverse the RD if it denies the claim and the FAB CE/HR determines that the claim should be accepted. If FAB disagrees with the outcome of the RD, but there is insufficient basis to warrant a reversal, it issues a separate type of decision called a Remand Order. Guidance relating to the issuance of Remand Orders comes later in the chapter. As part of the content of a final decision, the FAB CE/HR makes findings of fact and conclusions of law that support his or her position. There are several types of FDs:
a. Acceptances. When FAB receives a RD accepting a claim for benefits, the assigned CE/HR evaluates the evidence, and the written content of the RD to validate that the RD outcome is appropriate given the circumstances of the claim. In particular, the assigned FAB CE/HR is to determine whether the conclusion described in the RD is based on the proper application of EEOICPA legal, regulatory, or procedural standards to the facts of the case. Once the FAB CE/HR has determined the RD to accept was decided properly, he or she is to prepare a final decision listing the findings of fact and conclusions of law that permit the final approval of the claim.
(1) If the district office (DO) issued a RD accepting the claim in full and independent review by FAB concludes the acceptance is correct, FAB issues the FD awarding benefits in full.
(2) If the DO has issued a RD accepting one or more claim element(s) while denying and/or deferring other elements, the FAB issues the FD on the accepted portion of the claim as soon as possible to expedite the claimant’s receipt of benefits. The FAB does not wait to issue the FD until the elements under development at the DO, or under contention due to denial, are decided.
b. Denials. When FAB receives a RD in which the DO denies the claim in full or in part, FAB reviews the RD and independently reviews the case to ensure that appropriate development has occurred, the case has been adjudicated consistent with the law, regulations, policies and procedures and that the assessment of evidence has been interpreted reasonably to allow for a negative outcome. Provided no technical or procedural errors exist, FAB issues a FD to deny the claim.
If the RD denies one claim element and defers another claim element pending further development, the designated CE2 continues to develop the claim element that is not before the FAB.
(1) For non-contested denials, absent any technical or procedural error, the FAB issues a FD accepting the RD findings and denying the claim for benefits in cases where no timely objection is filed or a waiver is received.
(2) For contested denials, the FAB considers the timely filed written objection by either conducting a hearing, if requested, or a review of the written record before a FD is issued, as appropriate.
c. Decisions Issued in Response to an Objection. After considering a timely filed written objection by conducting a hearing that has been requested or, in those cases in which no hearing has been requested, by reviewing the written record, FAB issues a decision based upon its review of the record, consideration of the objections, and any new evidence. The FAB can issue a FD, a remand order returning the case file to the DO for further development or some other action, or a FD reversing a RD denying benefits. Remand orders and FD reversals are discussed below and can be issued on both contested and non-contested claims.
(1) A review of the written record (RWR) is performed after a claimant has objected to the findings of a RD without requesting an oral hearing. The FAB will review the written record, the claimant’s objection, and any additional evidence submitted to determine whether the RD findings can be adopted, reversed to accept the claim or remanded for further development. The FAB CE/HR must review all objections raised in the RWR objection letter and respond to each objection clearly and comprehensively. Once this review is complete, the FAB issues a decision based on its independent review.
(2) If the FAB conducts a hearing and satisfies all of the requirements of the hearing process (see Chapter 2-1700), a decision is issued. While the HR may entertain objections raised from several RDs at the hearing itself, one FAB decision will be issued that addresses each contested RD after the resolution of the entire hearing process.
(3) In the decision following a hearing, the HR outlines the facts of the case, lists and comprehensively addresses all of the objection(s)(whether raised in the hearing request letter, subsequent letters, hearing testimony, or hearing exhibits) and thoroughly discusses the findings and/or conclusions of the FAB.
d. Reversal. A reversal is a FD issued when the evidence shows that either the RD denied benefits in error or new and compelling evidence warrants overturning a RD denial and accepting a claim for benefits.
If there is evidence in the case that warrants a reversal, the FAB CE/HR reverses the decision with approval from the FAB Chief and issues a decision to the claimant without delay. If the claimant submits additional evidence, the FAB CE/HR reviews such evidence and determines whether it is sufficient to accept the case. If it is sufficient, and there are no outstanding development issues (such as SWC/Tort information), the FAB CE/HR may reverse the decision immediately and accept the case. If the evidence is sufficient to warrant further development, FAB remands the case.
(1) A reversal can be issued when a case is denied in full or in part. In partial denials, the FAB may reverse to accept if the portion of the claim denied by the RD is found to be in posture for acceptance, a DO error is identified, or new evidence is received that warrants a reversal.
(2) A decision reversing the RD is used only where a denial is reversed to accept benefits. The FAB may not issue a reversal to deny benefits. The rationale for reversals must be clearly stated in the body of the decision and forwarded with the case file to the FAB Chief for review and approval. A reversal cannot be issued without such approval.
(3) When considering a reversal, FAB must be mindful of tort offset/SWC coordination and determine whether anyone received a settlement that might reduce the EEOICPA benefit.
3. Preparation of FDs. As with RDs, multiple FAB decisions are possible on one case. Given the requirement that any RD in which the DO decides the eligibility of any one claimant to receive benefits must include all claimants’ party to the decision, a FD cannot be issued deciding any one claimant’s eligibility to receive benefits without including all claimants with an interest in the claim as party to the decision. Accordingly, it is the responsibility of the FAB to remand any RD which does not comply with these procedures and instruct the DO to issue a new RD to address the eligibility of each party to the claim. This may require the reopening of certain claims, except in certain limited circumstances (see EEOICPA PM 2-1900).
FAB decisions are plainly written and provide the claimant with a descriptive explanation regarding the basis for the outcome. This ensures that the decision-making process is transparent. The FAB clearly identifies the Part of the Act under which benefits are awarded or denied so that the claimant clearly understands the decision. They include statutory/regulatory language in the conclusions of law when outlining the benefits being awarded or denied.
a. Three Components. The FAB representative must prepare three components before issuing a FD (a sample of a complete FD is shown as Exhibit 1):
(1) A cover letter explaining that a final decision has been reached. The cover letter must clearly identify what is being accepted or denied and under what Part of the Act. This letter provides general information about the FD process and the administrative review available to the claimant.
(2) The FD. The FD contains a Statement of the Case, Findings of Fact and Conclusions of Law.
(3) Certificates of Service certify that each listed claimant and his or her authorized representative was mailed a copy of the FD and the date it was placed in the U.S. mail. A separate certificate of service is created for each claimant, but a claimant and his or her authorized representative may appear on the same certificate of service.
An acceptance may include two other components: (1) a medical benefits letter explaining entitlement to medical benefits for an accepted condition (Exhibit 2); and/or (2) an Acceptance of Payment form (EN-20), which is required before payment can be issued.
b. Formatting and Content, FD for Acceptances, Contested Decisions, Denials, and Reversals. Where a FD is prepared for an acceptance, contested decision, denial or reversal, it must contain the following sections in the following sequence:
(1) Statement of the Case. This section sets out the case history, relevant to the issue for determination, up to the point of the issuance of the FD, including FAB actions and other pertinent information in a clear, concise narrative. No analysis of the facts or law and no citations should appear in this section.
(2) Findings of Fact. This section is a recitation of all facts needed to reach the conclusions of law and the ultimate decision rendered by the FAB. The findings of fact are the most significant findings from the Statement of the Case that are needed to support the FD ruling. Each finding is numbered sequentially. The findings should draw conclusions from the evidence of record, and must not simply recite the statement of the case.
(3) Objections. This section contains a summary of any timely objection brought up by the claimant or authorized representative in connection with the recommended decision(s) before FAB, as well as FAB’s response to these objections. The summary should mention all timely objections in a clear and orderly manner, but the summary does not need to be numbered and it may combine similar objections. All summarized objections must be responded to, with a discussion of FAB’s analysis of the objections in respect to entitlement requirements and an explanation of whether the objections have an impact on the adjudication of the claim. In most situations, to fully respond to the objections, the Objections section will need to make reference to the Act, regulations, or procedures. Therefore, citations are necessary and appropriate in this section.
(a) Objections to NIOSH Dose Reconstruction Decisions. Detailed procedures for objections to the NIOSH process and referrals to the DEEOIC Health Physicist are found in EEOICPA PM 2-1700.
(1) Factual objections in FD. If the claimant submits a factual objection and the factual findings reported to NIOSH are supported by the evidence of record, the FAB CE/HR addresses the objections in the FD. No referral to the DEEOIC Health Physicist is necessary. If the factual findings reported to NIOSH do not appear to be supported by the evidence of record the FAB CE/HR refers the case to the health physicist for review. If the health physicist determines that a rework of the dose reconstruction is not necessary, the FAB CE/HR addresses the objection in the FD by outlining the findings of the health physicist. However, if the health physicist determines that a rework of the dose reconstruction is necessary, the FAB CE/HR remands the case to the DO.
(2) Technical Objections in FD. A technical objection involving either methodology or application must be referred to the DEEOIC Health Physicist. If the DEEOIC Health Physicist deems none of the technical objections plausible, the FAB CE/HR incorporates the findings on these technical issues into the FD.
However, if the DEEOIC Health Physicist determines that there is substantial factual evidence that NIOSH had not previously considered and/or that NIOSH should consider an issue relating to application of methodology, he or she notifies the FAB CE/HR, who then remands the case, after supervisory approval, to the DO with instructions to refer the case back to NIOSH. In most cases, NIOSH will perform a new dose reconstruction based on circumstances of the remand.
(3) Objections to Methodology in FD. When an objection is directed at NIOSH’s methodology, the FAB CE/HR states in the decision that the objection cannot be addressed based on 20 CFR § 30.318(b) (methodology that NIOSH uses in arriving at reasonable estimates of radiation doses is binding on the FAB). The FAB CE/HR makes this statement only if so advised by the DEEOIC Health Physicist. Objections related to the content of NIOSH-IREP software are also related to methodology. However, the calculation of the probability of causation using the IREP software is the responsibility of the DEEOIC; therefore, FAB must address these objections in the FD.
(4) Conclusions of Law. This section contains the statutory and regulatory analysis used by the FAB reviewer to support his or her decision, referencing the findings of facts that support the conclusions of law. This section must be well-reasoned and provide appropriate legal citations. It should not, however, consist of a list of statutory and regulatory references without any explanation. This section also discusses any objection raised by the claimant in writing or through an oral hearing and includes FAB’s response to the objection based on FAB’s analysis of the objections and evidence of file. Finally, an overall legal conclusion supporting the decision must be reached. The conclusions of law must specifically identify whether or not benefits are being awarded or denied and under which Part of the Act.
c. Return of FD by Postal Service. Should FAB receive a returned FD, the FAB CE/HR will attempt to obtain the new or updated address for the claimant and re-mail the decision. More details regarding the handling of a returned FD are outlined in PM Chapter 2-1700.
4. Remand Orders. If the FAB determines that the claim(s) addressed in the recommended decision are not in posture for final decision, 20 C.F.R. § 30.317 gives FAB the authority to return cases to the DO without issuing a FD. A Remand Order is a written directive to the district office issued in lieu of a FD.
A Remand Order is written in narrative format to the claimant(s), but does not contain the normal sections of a FD (Statement of Case, Findings of Fact, and Conclusions of Law). However, where objections have been filed or a hearing has been held, the remand order should discuss and respond to the objections raised.
A Remand Order may instruct the DO to perform further development, address an error or other deficiency contained in a RD, address new evidence or a new claim received prior to the issuance of the FD, or address a change in the law, regulations, policies or procedures. A Remand Order can be warranted at any point during a review of the written record, before or after a hearing, or during the review of a RD.
FAB is to use reasonable discretion when assessing a case for remand. If the RD provides sound reasoning and thorough discussion of how it reached its conclusions and does not include material factual errors or erroneous application of law, the FAB must respect the DOs adjudicatory function. If FAB can make a reasonable determination that the outcome of the case would not be materially affected regardless of further development, FAB should exercise its discretion and not issue a Remand Order.
Should the FAB find a technical, procedural, or some other error requiring a remand order, the FAB returns the case file to the DO with specific instructions in the remand order as to how to proceed further. Remand orders are largely issued in instances where further development is required at the DO level. FAB does not issue a remand order where FAB personnel can conduct minor development to resolve the issue at hand.
a. Change in Law, Regulations or Policies. If FAB determines that a RD outcome is erroneous in light of a recent change in the law, regulations, or policy, FAB may remand the case. When this occurs, the Remand Order is to include specific narrative content explaining the basis for returning the case to the district office. For example, newly designated Special Exposure Cohort class, changes to Department of Energy facility or atomic weapon employer facility coverage, date or facility changes to the list of residually contaminated sites, modified program information on toxic substance or occupational health effects data or other regulatory or policy changes that could affect the claim outcome.
b. Erroneous Application of Law, Regulations, Policies or Procedures. If FAB determines that the recommended determination in the RD resulted from a misapplication of the law, regulations, policies or procedures, FAB may remand the case. The Remand Order identifies the misapplication of law, regulations, policies or procedures and describes how it effects the adjudication of the case. To expedite a favorable decision, the FAB CE/HR can reverse the decision without issuing a Remand Order, following procedures set forth in subpart 2.d of this chapter.
c. Receipt of New Medical Evidence or a New Claim for a Previously Unclaimed Illness. If while the case is at FAB, new medical evidence or a new claim for a new illness is received that is material to the recommended denial, FAB may remand or reverse to accept the claim, as applicable.
For example, if the RD denies a claim for chronic beryllium disease (CBD) on the basis of a lack of medical evidence and the claimant later submits medical evidence establishing CBD, the FAB may remand the claim or reverse the RD if all elements of the adjudicatory process are complete.
If a claim for a new illness is received, the case will be remanded for development of the newly claimed illness if it will affect the outcome of the issue before the FAB. If filing of the new claim will not affect the issue before the FAB, the FAB can issue a FD and return the new claim to the DO for further development. If the FAB is not immediately ready to issue the FD, then the Co-Located Unit (CE2) should create the new claim and begin development while the case is at FAB.
d. Receipt of Other New Evidence. If FAB receives new evidence that was not a part of the file when the RD was issued and that is material to the recommended determination (such as employment evidence, survivorship evidence, or evidence of a SWC/tort suit); FAB may remand the case or reverse the RD if it is advantageous to the claimant. The Remand Order will describe the new evidence and its possible effect on the adjudication of the case.
e. Evidence Already in File. If the RD fails to properly address material evidence in the file and the failure could have an effect on the adjudication of the claim, FAB may remand the case. The Remand Order will describe the evidence and its possible effect on the adjudication of the case. If advantageous to the claimant, and all adjudicatory issues are complete, FAB may reverse the RD and accept the claim.
For example, if evidence in the file sufficiently supports a diagnosis of a claimed cancer but the cancer was not included in the dose reconstruction, FAB may remand the case for a re-work of the dose reconstruction.
f. Miscalculation of Tort Offset or SWC Coordination. If FAB determines that the RD contains a finding of fact or conclusion of law that is based on a material miscalculation of the offset arising from a tort lawsuit or SWC coordination, FAB may remand the case.
(1) If a case is remanded for this reason, FAB includes its calculation worksheet in the file and a supplemental explanation of what FAB considers the evidentiary basis for its calculation.
(2) If FAB determines that the miscalculation was relatively minor and was not favorable to the claimant, FAB may exercise its discretion and issue a FD which corrects the calculation in the claimant’s favor, without a remand.
g. Where a case is at FAB for review of one claim element and a remand order is issued on another claim element; the designated CE2 addresses the remand order. If there are no outstanding issues before FAB, the remand order and case file is returned to the DO that issued the RD. FAB may also issue remand orders in part, returning one portion of the claim to the DO for further action and issuing a FD on other portions of the claim.
h. Format of Remand Order. A Remand Order follows a narrative format and is directed to the district office which issued the RD. It includes a brief discussion of the claim’s adjudicatory history when pertinent to the matter at hand, the basis for the remand, any explanation and supplemental documentation required and an explanation of the actions to be undertaken by the DO. A sample Remand Order is shown in Exhibit 3.
i. Notification and Transfer of File. When a Remand Order is issued, FAB inserts into the case file a copy of the Remand Order, certificate of service, and any supporting calculations or supplementary documentation. FAB sends a copy of the Remand Order, certificate of service, and cover letter to the claimant and the authorized representative, if any.
(1) The cover letter explains the Remand Order and the DOs responsibility for preparing a new RD after further development. Additionally, the cover letter advises the claimant to which office the case file is being forwarded, and provides the address and telephone number of that office. See Exhibit 3.
(2) A certificate of service, which certifies the Remand Order was mailed on a certain date, is also prepared for each individual recipient, attesting to the date the remand order is sent, and is also included in Exhibit 3.
(3) Upon issuance of a Remand Order, FAB transfers the case file to the DO that issued the RD.
j. Challenging a Remand Order. No procedure allows a claimant to directly challenge a Remand Order, but each District Director (DD) has the authority to formally challenge a FAB Remand Order with the DEEOIC Director if sufficient cause exists to do so. In such instances, the DD prepares a memorandum to the Director of the DEEOIC outlining his or her concerns and the case file is transferred to the Office of the Director for review.
5. Administrative Closure. If FAB determines that an individual claim requires administrative closure, a Remand Order is not necessary. These situations include:
a. Claimant Withdraws Claim. If a claimant advises the DEEOIC that he or she wishes to withdraw the claim, the FAB administratively closes the claim and drafts a memo to the file explaining the reason for the closure. Additionally, the FAB is to send a letter to the claimant advising him/her of the administrative closure.
b. Claimant Dies. If the claimant dies after the issuance of a RD but prior to issuance of the FD, the decedent’s claim is administratively closed by the FAB. In the case of a single claimant, the FAB returns the claim to the DO to pursue survivor claims. In situations involving multiple claimants, the case is remanded to the DO for the issuance of a new recommended decision which reallocates benefits. However, if the RD is recommending denial of all claims, the FAB may issue a FD to the remaining survivors, denoting the administrative closure of the decedent’s claim.
c. Claimant Cannot be Located. When a RD is returned by the Postal Service and a current address for the claimant cannot be obtained by the Co-Located Unit within a reasonable period of time, the FAB administratively closes the claim and returns the case file to the DO. In situations involving multiple claimants, the FAB issues a FD to the remaining survivors, denoting the administrative closure of the claimant whose address could not be determined, and outlining that the share of compensation of the claimant whose claim has been administratively closed will be held in abeyance.
d. State Workers’ Compensation (SWC)/Tort/Fraud Statements (EN-16) Not Obtained. Where signed statements are required regarding tort lawsuits, SWC claims and any possible fraud committed in connection with an application for or receipt of any federal or state workers’ compensation benefit, and the claimant has not submitted such statements within 30 days of the issuance of the RD, the FAB administratively closes the claim. A memo to the file is drafted explaining the reason for the closure, and a letter is sent to the claimant advising him/her of the administrative closure.
In instances involving multiple claimants and one or more claimants have not submitted the required EN-16, the FAB issues a FD to the claimants who have submitted a signed EN-16, denoting the administrative closure of the claimant(s) who failed to submit an EN-16. The share of compensation of the claimant(s) whose claim(s) has been administratively closed will be held in abeyance.
When a consequential injury is to be accepted, the CE must get a new signed EN-16 SWC/Tort/Fraud affidavit from the claimant for that consequential injury.
FAB’s responsibilities in obtaining the appropriate EN-16 forms are described in further detail in Chapter 3-400.3(b) and 3-500.6(c).
6. Claimant Rights Following the Issuance of FAB FDs. A claimant may seek review of a FD by filing a request for reconsideration or by filing a request for reopening of the claim. This section discusses requests for reconsideration and provides guidance relating to the initial receipt of requests for reopening.
a. Receipt of a Request for Review.
(1) A request for reconsideration will be considered timely if it was filed within 30 calendar days of the date of issuance of the FD. Pursuant to 20 C.F.R. § 30.319(b), the request will be considered to be
“filed” on the date the claimant mails it to the FAB, as determined by the postmark, or on the date the written request is actually received by the DO or FAB, whichever is the earliest determinable date. A request for reopening may be filed at any time after the FD is issued.
(2) Any correspondence from a claimant or authorized representative which is received in the DO or FAB within 30 calendar days after the FD is issued, and which contains either an explicit request for reconsideration or language which could be reasonably interpreted as intent to disagree with the FD will be considered a timely request for reconsideration. If new evidence is received in the DO or FAB within 30 calendar days after the FD issuance, and the new evidence relates to an issue which was adjudicated and denied in the FD, this new evidence will be considered a timely request for reconsideration. If the DO receives the request for reconsideration, it must be sent to National Office (NO) FAB for handling.
(3) Upon receipt of correspondence or new evidence which constitutes a timely filed request for reconsideration, FAB will send a letter to the claimant acknowledging receipt of the correspondence or evidence and advising that such receipt is considered a timely filed request for reconsideration.
(4) If correspondence received within 30 calendar days of the FD specifically requests a reopening instead of reconsideration, it will be handled as a reopening request by the DO. If both reconsideration and reopening are requested, FAB will process the reconsideration request first and then forward the claim to the DO to process the reopening request.
(5) A request for reopening may take several forms:
(a) Any correspondence or evidence containing or accompanied by a specific request for reopening, which is received at any time after the issuance of the FD, will be treated as a reopening request.
(b) If correspondence or evidence is received without a specific request for reopening after the deadline for a timely reconsideration request, and the FD denied the claim to which the correspondence or evidence relates, the evidence is reviewed for possible reopening.
If FAB determines that such correspondence or evidence meets the evidentiary requirements set forth in 20 C.F.R. § 30.320(b), the FAB-DO district manager or the FAB-NO Branch Chief will prepare a memorandum to the EEOICP Director outlining the relevant claim history and the nature of the evidence and forward the case file to the EEOICP Director for review for possible reopening.
Should the evidentiary requirements not be met, FAB will associate the correspondence or evidence with the case file. In either case the claimant will not be notified of the actions taken by the FAB, because the claimant has not requested a specific action.
(6) Upon receipt of a request for review:
(a) Any request for reconsideration, along with the case file, is forwarded to FAB and assigned to a FAB CE/HR for review. A reconsideration request will not be assigned to a FAB CE/HR who issued the FD for the specific claim element being addressed in the reconsideration request. Additionally, should the claimant specifically request that the reconsideration be addressed by a different FAB office, every effort should be made to accommodate the claimant.
The FAB CE/HR will screen the case to determine if the correspondence constitutes a request for reconsideration and, if so, if the request was timely filed.
(b) All requests for reopening received in the DO are initially reviewed by the DD. If a reopening request is received in FAB, the FAB-DO district manager or FAB-NO Branch Chief will transfer the request, any supporting evidence, and the case file to the DD for review.
(7) Upon receipt of a timely request for reconsideration, the FD in question will no longer be deemed “final” until a decision is reached on the reconsideration request. Receipt of a request for reopening does not have a similar effect and the subject FD remains “final” until such time as the EEOICP Director issues an order reopening the claim.
(8) A reconsideration request does not come with further reconsideration rights but only reopening rights or right to file suit in District Court. Therefore, if FAB denied a request for reconsideration and the claimant subsequently files another request for reconsideration of the same FD, FAB will not entertain the subsequent request. A letter explaining to the claimant that reconsideration rights attach only once to a FD is signed by the FAB chief.
b. Processing an Untimely Request for Reconsideration.
(1) Any initial reconsideration request which is filed after the above-noted deadline is an untimely filed request for reconsideration.
(a) No letter is sent to acknowledge receipt of an untimely request for reconsideration. FAB issues a Denial of Request for Reconsideration advising the claimant that the request for reconsideration was not filed within 30 days of the issuance of the FD and must be denied.
(b) If FAB concludes that any evidence received with an untimely request for reconsideration may warrant a reopening, FAB may forward the request to the District Director of the DO with jurisdiction over the claim for review.
(2) If an untimely filed request for reconsideration is accompanied by a specific request for reopening, FAB issues a Denial of Request for Reconsideration based on the untimely filing. The FAB CE/HR then forwards the reopening request with the case file to the DD of the office with jurisdiction over the claim for review for possible reopening.
c. Adjudicating a Timely Request for Reconsideration. Requests for reconsideration typically come in a number of different forms. To determine the appropriate action to be taken in response to the request, the FAB CE/HR must review the request and, if appropriate, any accompanying argument or evidence.
(1) If the request for reconsideration simply states that the claimant disagrees with the FD and provides no new argument or evidence in support of their request, the CE/HR may simply deny the request for reconsideration on the grounds that no argument or evidence was submitted that would alter the FD. See Exhibit 4.
(2) If the request for reconsideration raises new legal arguments with respect to the FD but includes no new evidence, the CE/HR reviews the FD and considers the arguments made by the claimant. The reviewer must examine the evidence of record and the FD challenged by the claimant. See Exhibit 5.
(a) If the arguments do not change the outcome of the FD under review, the request for reconsideration is denied with appropriate and specific response to the arguments made in the request. FAB does not make any factual findings.
(b) If the arguments made in the request for reconsideration support a conclusion that there was a misapplication of the law, regulations or procedures in the FD, the request for reconsideration may be granted, and the case remanded to the district office or a new FD issued by the FAB reversing to accept the claim.
(3) If the request for reconsideration includes evidence which is duplicative, or essentially duplicates that which is already in the file and was previously considered in the FD, the request is denied with an explanation of how the new evidence does not change the outcome of the claim.
(4) If the request for reconsideration includes new, probative evidence which would alter the outcome of the FD, the request for reconsideration is granted.
d. Effect of denial or grant of reconsideration on finality.
(1) If the FAB denies the request, the FAB decision which was the subject of the request will be considered “final” on the date the request is denied. No further requests for reconsideration of that particular FD of the FAB will be considered.
(2) If the FAB grants the request for reconsideration and issues a new FD, that decision will become final on the date of its issuance. Accordingly, the FAB will consider subsequent requests for reconsideration pertaining to that decision.
(3) If the FAB grants the request for reconsideration and remands the case to the district office for further development, the claimant(s) will receive a new RD with the full rights that go with a RD and a new FD.
7. Alternative Filing, Part E. If a claimant is denied as an ineligible survivor under Part E, he or she has the right to alternatively receive a non-decision determination regarding the employee’s claimed illness (es). FAB advises the claimant of this right in the cover letter of the FD (see Exhibit 6 for a sample cover letter). Additional information regarding Alternative Filing can be found in PM Chapter 2-1200, Establishing Survivorship.