E.C. and U.S. Postal Service, Post Office, New Orleans, LA (Board decision, April 6, 2011)

ECAB remand decision (order). The Board set aside OWCP's November 12, 2009 denial of E.C.'s reconsideration request and remanded for review under the standard for timely requests. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance unless the Board fixed a different period in it, but it does not decide E.C.'s underlying wage-loss claim. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.C., a Postal Service employee, sought reconsideration of OWCP's denial of wage-loss compensation. OWCP treated her request as late and denied it under the stricter clear-error standard. The record showed that OWCP received her written request within one year of the June 17, 2008 merits decision. The Board held that the request was timely, set aside OWCP's denial, and returned the matter for review under the standard for timely reconsideration requests. It did not decide whether E.C. was entitled to wage-loss compensation.

Decision snapshot

• Authority: Timely reconsideration standard, 20 C.F.R. § 10.606(b)(2).
• Outcome: November 12, 2009 reconsideration denial set aside; request remanded for review under the timely standard.
• Key point: OWCP's own record showed receipt of E.C.'s request within one year of its merits decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.C., Appellant
)
)
and ) Docket No. 10-1363
) Issued: April 6, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
New Orleans, LA, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On April 20, 2010 appellant filed for review of a November 12, 2009 decision of the Office of Workers’ Compensation Programs that denied her request for reconsideration as untimely and not establishing clear evidence of error.1 The appeal was docketed as No. 10-1363.

The Board has duly considered the matter and finds that appellant’s reconsideration request was timely filed. On appeal, appellant contended that she submitted a timely request for reconsideration. She mailed her request packet on May 12, 2009 within one year of the June 17, 2008 Office decision denying her claim.2 Appellant cited to a signed return receipt that documented the Office received her request on May 14, 2009 at 10:41 a.m.3 The Board notes

1
The most recent merit decision was issued by the Office on June 17, 2008. For final adverse decisions issued prior to November 19, 2008 a claimant had up to one year to file and appeal to the Board. See 20 C.F.R.
§ 501.3(d)(2) (2008). For final adverse Office decisions issued on or after November 19, 2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e) (2009). 2 The Office denied appellant’s claim for wage-loss commencing January 23, 2008.
3
Appellant submitted new evidence with her appeal. The Board’s review of a case is limited to the evidence of record at the time of the Office’s final decision from which an appeal is made. See 20 C.F.R. § 501.2(c)(1). that the record reflects that on May 15, 2009 the Office scanned appellant’s letter of May 11, 2009 requesting reconsideration into evidence.

As the record establishes that the Office timely received appellant’s request for reconsideration within one year of the June 17, 2008, it erroneously applied the standard for clear evidence of error to the consideration of her request. The case will be remanded to the Office to proceed with a review of appellant’s reconsideration application under the legal standard applicable to a timely request.4

IT IS HEREBY ORDERED THAT the November 12, 2009 decision of the Office of Workers’ Compensation Programs be set aside. The case is remanded for further action in conformance with this order and an appropriate decision on appellant’s request for reconsideration.

Issued: April 6, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

4
20 C.F.R. § 10.606(b)(2). See Donald M. Campbell, 55 ECAB 241 (2004).

2