B.B. and U.S. Postal Service, Post Office, Plainfield, NJ (Board decision, May 9, 2012)

ECAB remand decision. The Board set aside OWCP's March 25, 2011 refusal to consider B.B.'s request as timely and remanded for a proper decision on that request. The underlying compensation claim remains unresolved in this order. 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

B.B., a postal employee, requested reconsideration of an OWCP compensation decision. OWCP treated a March 2011 letter as the request and denied it as more than a year late. The Board found that the record contained an earlier request received in November 2010, within a year of the January 2010 merits decision. It set aside OWCP's untimeliness ruling and returned the matter for a decision applying the timely-request standard. The order did not decide the underlying compensation claim.

Decision snapshot

• Authority: One-year reconsideration period under 20 C.F.R. § 10.607(a).
• Outcome: March 25, 2011 untimeliness decision set aside; case remanded.
• Key point: OWCP had received a written reconsideration request within the permitted year.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.B., Appellant
)
)
and ) Docket No. 11-2133
) Issued: May 9, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Plainfield, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Aaron Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 21, 2011 appellant filed a timely appeal of a March 25, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), finding that her application for reconsideration was untimely and failed to show clear evidence of error. The appeal was docketed as No. 11-2133.

In the March 25, 2011 decision, OWCP states that appellant, through her representative, submitted a reconsideration request dated March 9, 2011, which was more than one year after the last final decision on the merits of the claim for compensation dated January 20, 2010. It stated that although the representative asserted in the March 9, 2011 letter that he had requested reconsideration on November 17, 2010, the only documentation received on that date was a change of address request.

But the record contains a November 9, 2010 letter from appellant’s representative, received by OWCP on November 15, 2010 entitled “request for reconsideration.” Appellant indicated that in support of reconsideration of the January 20, 2010 decision she was submitting evidence from Dr. Michael Bercik, an orthopedic surgeon, and on November 15, 2010 OWCP received an October 5, 2009 report from Dr. Bercik.
The Board finds that appellant submitted a timely application for reconsideration of the January 20, 2010 OWCP decision.1 Since OWCP incorrectly found the application for reconsideration was untimely, the case will be remanded to OWCP for a proper decision regarding the timely reconsideration request. After such development as OWCP deems necessary, it should issue an appropriate decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated March 25, 2011 is set aside and the case remanded for further action consistent with this order of the Board.

Issued: May 9, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1
A claimant has one year from the date of an adverse final decision to timely request reconsideration. 20 C.F.R.
§ 10.607(a).

2