review of the written record as provided by paragraph (b) of this section has been obtained. At an oral hearing, the claimant shall be afforded the opportunity to present oral testimony and/ or written evidence in further support of the claim. A claimant may change his or her selection of an oral hearing to a review of the written record as provided by paragraph (b) of this section; however, such written request for change must be made within 30 days after the date of the Office's acknowledgment of receipt of the initial request.

(b) In lieu of an oral hearing, a claimant shall be afforded an opportunity for a review of the written record by an Office representative designated by the Director. Such review will not involve oral testimony or attendance of the claimant; however, the claimant may submit any written evidence or argument which he or she believes relevant. A review of the written record must be requested in writing within 30 days of the date of issuance of the decision, specify the decision and/or issue which is the subject of the request, and be made to the Office as set forth in the decision. A claimant is not entitled to a review of the written record if the request is not made within 30 days of the date of issuance of the decision as determined by the postmark of the request, or if a request for reconsideration of the decision is made pursuant to 5 U.S.C. 8128(a) and § 10.138(b) of this subpart prior to requesting a review of the written record, or if an oral hearing has been obtained as provided by paragraph (a) of this section. A claimant may change his or her selection of a review of the written record to an oral hearing as provided by paragraph (a) of this section; however, such written request for change must be made within 30 days after the date of the Office's acknowledgment of receipt of the initial request. Where timely request for a review of the written record is received, the Office shall furnish the employing agency with a copy of the claimant's request and allow 15 days for the agency to submit any comments and/or documents which it believes relevant and material to the issue in question. Any comments or

documents submitted by the agency are subject to review and comment by the claimant within 15 days following the date the Office sends any such agency submission to the claimant. Following a review of the record and any evidence submitted, the Office representative shall decide the claim and inform the claimant, the claimant's representative and the employing agency of the decision.

[52 FR 10511, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.131 was revised at 52 FR 10511, Apr. 1, 1987, effective June 1, 1987. For the convenience of the user, the superseded text is set forth below.

§ 10.131 Request for a hearing.

Any claimant not satisfied with a decision of the Office shall, upon written request made within 30 days after the date of issuance of such decision, be afforded an opportunity for a hearing before an Office representative designated by the Director. The request for hearing shall be made to the Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, D.C. 20211. At such hearing, the claimant shall be afforded an opportunity to present evidence in further support of his or her claim.

§ 10.132 Time and place of hearing; prehearing conference.

The Office representative shall set the time and place of the hearing and shall mail written notice thereof to the claimant, the claimant's representative, and the employing agency at least 15 days prior to the hearing. When practicable, the hearing will be set at a time and place convenient for the claimant. At the request of the claimant, the Office representative may schedule a prehearing conference to further define or clarify the issues. Request for such a conference must be made to the Office representative in writing at least 5 days prior to the scheduled date of the hearing. The decision whether or not to schedule a prehearing conference shall be solely within the discretion of the Office representative.

[52 FR 105011, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.132 was revised at 52 FR 10511, Apr. 1, 1987, effective June 1, 1987. For the convenience of

the user, the superseded text is set forth below.

§ 10.132 Time and place of hearing; prehearing conference.

(a) The Office representative shall set the time and place of the hearing, and shall mail written notice thereof to the claimant at least 10 days prior to the hearing. The hearing will, when practicable, be set at a time and place convenient for the claimant. The Office representative may, and when so requested by the claimant shall, afford the claimant a prehearing conference to clarify the issues in his or her claim and, when necessary, shall postpone the hearing for this purpose. Request for such conference may be made to the Office representative orally or in writing.

(b) A hearing may be postponed or cancelled upon the request of the claimant if such request is received by the Office or official of the Office assigned to conduct the hearing at least 48 hours prior to the time of the hearing or at the option of the Office. The unexcused failure of a claimant to appear at a hearing or late notice may result in the assessment of costs against such claimant.

§ 10.133 Conduct of hearing.

or

(a) In conducting the hearing, the Office representative shall not be bound by common law or statutory rules of evidence, by technical formal rules of procedure, or by section 5 of the Administrative Procedure Act, but may conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose, the representative shall receive such relevant evidence as may be adduced by the claimant and shall, in addition, receive such other evidence as the representative may determine to be necessary or useful in evaluating the claim. Evidence may be presented orally or in the form of written statements and exhibits. The hearing shall be recorded. The recording, either by magnetic tape or by transcription, shall be made a part of the case record.

(b) Pursuant to 5 U.S.C. 8126 the Office may whenever necessary: (1) Issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles; (2) administer oaths; (3) examine witnesses; and (4) require the production of books, papers, documents, and other evidence, with respect to proceedings conducted for the

purpose of determining the validity of any claim under this part.

[40 FR 6877, Feb. 14, 1975, as amended at 52 FR 10512, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.133 paragraph (a) was revised at 52 FR 10512, Apr. 1, 1987, effective June 1, 1987. For the convenience of the user, the superseded text is set forth below.

§ 10.133 Conduct of hearing.

(a) In conducting the hearing, the Office representative shall not be 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 may conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose the representative shall receive such relevant evidence as may be adduced by the claimant and shall, in addition, receive such other evidence as such representative may determine to be necessary or useful in evaluating the claim. Evidence may be presented orally or in the form of written statements and exhibits. The hearing shall be recorded, and the original of the complete transcript shall be made a part of the claims record.

§ 10.134 Subpoenas; witness fees.

(a) When reasonably necessary for full presentation of a case, an Office hearing representative may upon his or her own motion, or upon request of the claimant, issue subpoenas for the attendance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents which are relevant and material to any matter in issue at the hearing. A claimant who desires the issuance of a subpoena shall, not less than 20 days prior to the date fixed for the hearing, file with the Office representative a written request therefor, designating the witness or documents to be produced, and describing the address and location thereof with sufficient particularity to permit such witness or documents to be found. The request for a subpoena shall state the pertinent facts which the claimant expects to establish by such witnesses or documents and whether such facts could be established by other evidence without the use of a subpoena. A subpoena issued

under the provisions of this section Ishall be issued in the name of the Office hearing representative, and shall be served either in person by an authorized representative of the Office or by certified mail, return receipt requested, addressed to the person to be served at his or her last known principal place of business or residence. Where service is made in person by an authorized Office representative, such representative shall make an affidavit stating that he or she personally served a copy of the subpoena upon the person named therein. Where service is by certified mail, the signed returned post office receipt shall serve as proof of service.

(b) Non-government witnesses subpoenaed under this section who have submitted evidence into the case record at the request of the Office shall be paid the same fees and mileage as are paid for like services in the District Court of the United States where the subpoena was returnable. However, in the case of an expert witness, the witness fee shall not exceed the local customary fee for such service. Fees and mileage requested by such witnesses shall be paid by the Office.

(c) Non-government witnesses subpoenaed under this section who have submitted evidence into the case record at the request of the claimant or who have not submitted evidence into the case record but have testimony which is relevant and material to the issue in question and were subpoenaed at the request of the claimant, shall be paid the same fees and mileage as are paid for like services in the District Court of the United States where the subpoena was returnable. However, in the case of an expert witness, the witness fee shall not exceed the local customary fee for such service. Fees and mileage requested by such witnesses shall be paid by the claimant.

[52 FR 10513, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Former § 10.134 was redesignated as § 10.136 and a new § 10.134 was added at 52 FR 10513, Apr. 1, 1987, effective June 1, 1987.

§ 10.135 Employing agency attendance at hearings and submission of evidence. The employing agency does not have the right to request a hearing pursuant to 5 U.S.C. 8124. However, the employing agency has an interest in the outcome of the hearing and frequently possesses information pertinent to issues raised at the hearing. Therefore, the employing agency shall be afforded the opportunity to have an agency representative in attendance at the hearing and/or to request that it receive a copy of the hearing transcript. Where the employing agency sends a representative, the representative will attend primarily in the role of an observer without the right to question the claimant or make any argument. However, since the claimant is entitled to present evidence in support of the claim, the agency representative may, upon the specific request of the claimant, be called upon by the Office representative to give oral testimony. Where the employing agency requests that it receive a copy of the hearing transcript, the agency will be allowed 15 days following release of the transcript to submit comments or additional material for inclusion in the record. Any comments or materials submitted by the agency are subject to review and comment by the claimant within 15 days following the date the Office sends any such agency submission to the claimant.

[52 FR 10512, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Former § 10.135 was redesignated as § 10.137 and a new § 10.135 was added at 52 FR 10512, Apr. 1, 1987, effective June 1, 1987.

§ 10.136 Termination of hearing; release of decision.

The Office representative shall fix the time within which evidence will be received and shall terminate the hearing by mailing a copy of the decision, setting forth the basis therefor, to the claimant's last known address and to the claimant's representative, if any. A copy of the decision will also be mailed to the employing agency.

[52 FR 10512, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.136 was redesignated from § 10.134 and revised at 52

The Office representative shall fix the time within which he or she will receive evidence, and shall terminate the hearing by mailing a copy of his tentative decision, setting forth the basis therefor, to the claimant at his or her last known address. Such tentative decision shall become the final decision unless revised within 30 days. A copy of any revision of the tentative decision, setting forth the basis therefor, shall be mailed to the claimant at his or her last known address within such 30 day period.

(a) A scheduled hearing may be postponed or cancelled at the option of the Office, or upon written request of the claimant if the request is received by the Office at least 3 days prior to the scheduled date of the hearing and good cause for the postponement is shown. The unexcused failure of a claimant to appear at a hearing or late notice may result in the assessment of costs against such claimant.

(b) A claimant may withdraw a request for a hearing at any time by written notice to the Office representative before the hearing is held, or on the record at the hearing.

(c) A claimant who fails to appear at a scheduled hearing may request in writing within 10 days after the date set for the hearing that another hearing be scheduled. Where good cause for failure to appear is shown, another hearing will be scheduled. The failure of the claimant to request another hearing within 10 days, or the failure of the claimant to appear at the second scheduled hearing without good cause shown, shall constitute abandonment of the request for a hearing. Where good cause is shown for failure to appear at the second scheduled hearing, another hearing will be scheduled. Unless extraordinary circumstances such as hospitalization, a death in the family, or similar circumstances which prevent the claimant from appearing are demonstrated, failure of the claimant to appear at the third scheduled hearing

shall constitute abandonment of the request for a hearing.

[52 FR 10512, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.137 was redesignated from § 10.135 and revised at 52 FR 10512, Apr. 1, 1987, effective June 1, 1987. For the convenience of the user, the text of former § 10.135 is set forth below.

§ 10.135 Withdrawal of request for hearing; abandonment.

A claimant may withdraw his or her request for a hearing at any time prior to the mailing of the decision, by written notice to the Office representative so stating, or by orally so stating at the hearing. A claimant shall be deemed to have abandoned his or her request for a hearing if he or she fails to appear at the time and place set for the hearing and does not within 10 days after the time set for the hearing, show good cause for such failure to appear.

(a) Under the discretionary authority granted by 5 U.S.C. 8128(a), the Office may review an award for or against the payment of compensation at any time on its own motion and may, as a result of that review, affirm, reverse or modify the previous decision and inform the claimant, the claimant's representative and the employing agency of the decision.

(b)(1) Under the discretionary authority granted by 5 U.S.C. 8128(a), the Office may review an award for or against the payment of compensation on application of the claimant. No formal application for review is required, but the claimant must make a written request identifying the decision and the specific issue(s) within the decision which the claimant wishes the Office to reconsider, and give the reasons why the decision should be changed. Where the decision or issue cannot be reasonably determined from the claimant's application for review, the application will be returned to the claimant for clarification without further action by the Office with respect to the application. The claimant may obtain review of the merits of the claim by

(i) Showing that the Office erroneously applied or interpreted a point of law, or

(ii) Advancing a point of law or a fact not previously considered by the Office, or

(iii) Submitting relevant and pertinent evidence not previously considered by the Office.

(2) Any application for review of the merits of the claim which does not meet at least one of the requirements listed in paragraphs (b)(1) (i) through (iii) of this section will be denied by the Office without review of the merits of the claim. Such a denial of application is not subject to review under this section or to hearing under § 10.131. Further, the Office will not review under this paragraph a decision denying or terminating a benefit unless the application is filed within one year of the date of that decision. Where proper application is submitted and the Office finds that merit review of the claim is warranted, the Office shall furnish the employing agency with a copy of the claimant's application for reconsideration and allow 15 days for the agency to submit any comments and/or documents which it believes relevant and material to the issue in question. Any comments or materials submitted by the agency are subject to review and comment by the claimant within 15 days following the date the Office sends any such agency submission to the claimant. The Office shall then review the decision and any agency submission, decide the claim, and inform the claimant, the claimant's representative and the employing agency of the decision.

[52 FR 10512, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.138 was redesignated from § 10.136 and revised at 52 FR 10512, Apr. 1, 1987, effective June 1, 1987. For the convenience of the user, the text of former § 10.136 is set forth below.

§ 10.136 Review of decision.

An award for or against the payment of compensation may be reviewed by the Office under 5 U.S.C. 8128(a) at any time, on its own motion or on application of the claimant. No formal application for review is required, but a written request for review, stating reasons why the decision should be changed and accompanied by evidence not previously submitted to the Office, is necessary to invoke action. Such request shall be made to the Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, D.C. 20211.

§ 10.139 Review by the Employee's Compensation Appeals Board.

Final decisions of the Office, except decisions concerning the amounts payable for medical services, and decisions concerning exclusion and reinstatement of medical providers, are subject to review by the Employees Compensation Appeals Board (ECAB), U.S. Department of Labor, under rules of procedure set forth in Part 501 of this title.

[49 FR 18978, May 3, 1984. Redesignated at 52 FR 10512, Apr. 1, 1987]

EFFECTIVE DATE NOTE: Section 10.139 was redesignated from § 10.137 without revision at 52 FR 10512, Apr. 1, 1987, effective June 1, 1987. For the convenience of the user, the text of former § 10.137 is set forth below.

§ 10.137 Review by the Employee's Compensation Appeals Board.

Final decisions of the Office, except decisions concerning the amounts payable for medical services, and decisions concerning exclusion and reinstatement of medical providers, are subject to review by the Employees Compensation Appeals Board (ECAB), U.S. Department of Labor, under rules of procedure set forth in Part 501 of this title.

§ 10.140 Participation in claims process by employing agency.

Proceedings conducted with respect to claims filed under the Act are nonadversary in character. Accordingly, a claimant's employing agency shall not have the right, except as provided in Subpart C of this part, to actively participate in the claims adjudication process. However, the employing agency may, under circumstances other than that described in § 10.102(b), investigate the circumstances surrounding an injury to an employee and the extent of disability (e.g., an agency may investigate an employee's activities where it appears the employee alleging total disability may be performing other employment or may be engaging in activities which would indicate less than total disability). Further, the agency has the responsibility to submit to the Office at any time all relevant and probative factual and medical evidence in its possession or which it may acquire through investigation or other means. All evidence submitted will be consid