C.W. and U.S. Postal Service, Post Office, Philadelphia, PA (Board decision, October 19, 2010)

ECAB remand decision; the reconsideration request and underlying recurrence claim remain unresolved. The Board set aside OWCP’s December 10, 2009 denial of an oral hearing and remanded for OWCP to address C.W.’s request for reconsideration. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

C.W., a postal maintenance worker with an accepted back injury, wrote to OWCP years after it denied a recurrence claim. OWCP treated his letter as a late request for an oral hearing and denied it. The Board read the letter as a request for reconsideration because C.W. explicitly asked OWCP to reconsider its earlier decision. It noted that he had already received an oral hearing in the case. The Board set aside the hearing denial and directed OWCP to address the reconsideration request. It did not decide the recurrence claim.

Decision snapshot

• Authority: FECA hearing requests under 5 U.S.C. § 8124(b)(1) and reconsideration under 5 U.S.C. § 8128(a).
• Outcome: December 10, 2009 hearing denial set aside; reconsideration request remanded for a decision.
• Key point: OWCP had to address the request the claimant actually made, despite its receipt by the hearing branch.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.W., Appellant
)
)
and ) Docket No. 10-484
) Issued: October 19, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 15, 2009 appellant filed a timely appeal from the December 10, 2009 nonmerit decision of the Office of Workers’ Compensation Programs denying an oral hearing request. As more than one year has elapsed between the most recent merit decision of the Office issued on November 6, 2000 and the filing of the appeal on December 15, 2009, the Board lacks jurisdiction to review the merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1

ISSUE

The issue is whether the Office’s Branch of Hearings and Review properly denied appellant’s request for a hearing as untimely.

On appeal, appellant contends that the Office “withheld his diagnosis, prognosis and capacity to properly adjudicate the claim, which led to a government false indictment.”

1
See 20 C.F.R. § 501.3(d)(2). For final decisions issued by the Office on and after November 19, 2008, the Board’s authority is limited to appeals which are filed within 180 days from the date of issuance of the Office’s decision. See 20 C.F.R. § 501.3(e). FACTUAL HISTORY

On July 23, 1992 appellant, then a 35-year-old maintenance laborer, filed a traumatic injury claim alleging that on that date he got on the elevator at work and injured his upper and lower back when the elevator missed the 4th floor and jammed between floors. By letter dated October 27, 1992, the Office accepted appellant’s claim for thoracic and lumbar strain and sprain and paid wage-loss compensation for temporary disability from September 10, 1992 to May 3, 1993. Appellant returned to work full time in a light-duty capacity on May 4, 1993. The Office accepted appellant’s claim for a recurrence of disability for intermittent periods in June and July 1993. Appellant returned to light-duty work full time on May 23, 1994.

On September 10, 1999 appellant filed a claim alleging a recurrence of the accepted injury on August 25, 1999. By decision dated December 6, 1999, the Office denied appellant’s claim for a recurrence. By decision dated November 1, 2000 finalized November 6, 2000, the Office hearing representative affirmed the Office’s December 6, 1999 decision denying the recurrence claim. Additionally, it found that appellant failed to establish a new injury.

In an undated letter to the Office’s Branch of Hearings and Review received on September 9, 2009, appellant stated that he “would like to exercise” his appeal rights in the November 6, 2000 decision. He requested that it “reconsider the Dec[ember] 6, 1999 decision appeal and consider it as the timely appeal wa[i]ving all statutory limits in the November 6, 2000 decision....” Appellant reiterated his request “for reconsideration” and argued, inter alia, that there were due process violations and that there was illegal removal information in his government record, citing examples.

By decision dated December 10, 2009, the Office treated appellant’s letter as a request for an oral hearing or review of the written record. It then denied appellant’s request as it was untimely filed and further found that the issue could be resolved via reconsideration.

LEGAL PRECEDENT

Section 8124(b) of the Act,2 concerning a claimant’s entitlement to a hearing before an Office representative, states: Before review under section 8128(a) of this title, a claimant ... not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after the date of issuance of the decision, to a hearing on his claim before a representative of the Secretary.3

The Board has held that section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting hearings. A claimant is entitled to a hearing as a matter of right only if

2
5 U.S.C. §§ 8101-8193.
3
Id. at § 8124(b)(1).

2 the request is filed within the requisite 30 days.4 Even where the hearing request is not timely filed, the Office may within its discretion, grant a hearing and must exercise this discretion.5

ANALYSIS

The Board finds that this case is not in posture for decision. In its December 10, 2009 decision, the Office denied appellant’s request for an oral hearing. However, after review of the appellant’s request, the Board finds that he was not requesting an oral hearing. In fact, he had already had an oral hearing before the hearing representative on July 19, 2000. In his letter to the Branch of Hearings and Review, appellant specifically stated that he wished the Office “to reconsider the Dec[ember] 6, 1999 decision.” Additionally, prior to listing what he contended were due process violations, etc., appellant again requested “reconsideration.” The Board concludes that appellant’s undated letter to the Office, received on September 9, 2009, is a request for reconsideration. Thus, the Office should have treated appellant’s letter as a request for reconsideration of the Office’s decision of November 6, 2000.6 Accordingly, this case is remanded for the Office to address his request for reconsideration, to be followed by any further development and the issuance of an appropriate decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

4
Tammy J. Kenow, 44 ECAB 619 (1993).
5
Id.
6
See e.g., Lovell Sims, Docket No. 05-1044 (issued September 15, 2005) wherein the Board set aside the Office’s decision denying a request for review of the written record as untimely and remanded the case for proper consideration of appellant’s reconsideration request. The Board found that although appellant’s request was addressed to the Office’s Branch of Hearings and Review, was mischaracterized by the Office and was indeed a request for reconsideration.

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 10, 2009 is set aside and the case remanded for further consideration consistent with this opinion.

Issued: October 19, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4