S.S. and U.S. Postal Service, Post Office, City of Industry, CA (Board decision, June 23, 2010)

ECAB final decision. The Board dismissed the appeal of OWCP's May 6, 2009 decision as untimely and did not review the underlying claim. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

S.S. appealed an OWCP claim denial more than 180 days after its May 6, 2009 issuance. She asked the Board to extend the filing period because she had been diagnosed with breast cancer and underwent treatment. The Board found that her evidence did not establish that she was incapacitated or unable to manage her affairs during the filing period. It dismissed the appeal without deciding the underlying compensation claim.

Decision snapshot

• Authority: 180-day appeal period and compelling-circumstances exception under 20 C.F.R. § 501.3(e).
• Outcome: Appeal dismissed as untimely; claim merits not reviewed.
• Key point: The submitted evidence did not establish incapacitation that would justify a filing extension.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.S., Appellant
)
)
and ) Docket No. 10-1135
) Issued: June 23, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
City of Industry, CA, Employer
)
__________ )

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

ORDER DISMISSING APPEAL

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

On March 17, 2010 appellant filed an appeal from a May 6, 2009 decision of the Office of Workers’ Compensation Programs denying her claim. The appeal was docketed as No. 10-1135.

The Board has duly considered the matter and notes that, under its implementing federal regulations, an appeal from an Office decision issued on or after November 19, 2008 must be filed within 180 days of the decision.1 As appellant did not file an application for review of the May 6, 2009 decision until March 17, 2010, the Board does not have jurisdiction to review that decision.

Appellant noted that, for good cause shown, the Board may in its discretion extend the time to file an appeal if an applicant demonstrates compelling circumstances.2 She stated that three months prior to the May 6, 2009 Office decision, she was diagnosed and treated for breast cancer. Appellant underwent chemotherapy and a bilateral mastectomy on December 8, 2009. 1 20 C.F.R. § 501.3(e) (2008).
2
Id. Compelling circumstances means circumstances beyond appellant’s control that prevent the timely filing of an appeal and does not include any delay caused by the failure of an individual to exercise due diligence in submitting a notice of appeal. She requested extending the time to file her appeal due to the unexpected diagnosis of breast cancer on February 25, 2009.

In the October 20, 2008 notice of final rule making, the Board noted that compelling circumstances could include a medical condition that rendered an appellant incompetent or military service in a war zone that prevented timely filing of an appeal. The Board finds that the evidence submitted with appellant’s application for review is not sufficient to establish that she was incompetent to manage her affairs at any time after the February 25, 2009 diagnosis.3 She has not submitted evidence to establish that she became incapacitated as contemplated by the Board’s implementing regulation. For this reason, she did not timely file her application seeking review of the May 6, 2009 Office decision and the appeal will be dismissed.

IT IS HEREBY ORDERED THAT the appeal docketed as No. 10-1135 be dismissed.

Issued: June 23, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3
Compare Aurora L. Palalay, 35 ECAB 1078, 1081 (1984); Lillian H. O’Connor (Cornelius F. O’Connor, Sr.), 13 ECAB 568 (1962).

2