D.W. and Department of Veterans Affairs, Cheyenne Veterans Administration Medical Center, Cheyenne, WY (Board decision, September 13, 2012)

ECAB remand decision. The Board set aside OWCP's October 18, 2011 refusal to review D.W.'s claim. Her reconsideration request was filed within one year of the last merits decision, and OWCP must evaluate it under its procedures. The underlying wage-loss claim remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

D.W., a Veterans Affairs nurse, received an accepted thumb injury and sought compensation for a later period of missed work. OWCP denied total disability benefits but allowed four hours for each date she received medical treatment. D.W. requested reconsideration on October 3, 2011, and OWCP rejected the request as late. The Board found that the last merits decision was issued October 4, 2010, making her request timely within the one-year window. It set aside the refusal and remanded for OWCP to review her request under the applicable rules.

Decision snapshot

• Authority: OWCP reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.607(b).
• Outcome: OWCP's October 18, 2011 refusal set aside and remanded for review of the timely request.
• Key point: The one-year period ran through October 4, 2011, so the request received October 3 was timely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.W., Appellant
)
)
and ) Docket No. 12-1005
) Issued: September 13, 2012
DEPARTMENT OF VETERANS AFFAIRS,
)
CHEYENNE VETERANS ADMINISTRATION
)
MEDICAL CENTER, Cheyenne, WY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Gregory A. Hall, for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On April 4, 2012 appellant, through her representative, filed a timely appeal from an October 18, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) which denied her reconsideration request on the grounds that it was untimely filed and failed to establish clear evidence of error. Because more than one year elapsed between the last merit decision dated October 4, 2010 to the filing of this appeal on April 4, 2012, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE

The issue is whether OWCP properly determined that appellant’s October 3, 2011 request for reconsideration was untimely filed and did not demonstrate clear evidence of error.

1
5 U.S.C. §§ 8101-8193.
 FACTUAL HISTORY

On July 22, 2009 appellant, then a 56-year-old nurse, sustained a hand injury when the privacy screen of the computer fell on her hand while she was at work. OWCP accepted appellant’s claim on September 17, 2009 for a right thumb contusion.

Appellant filed a series of CA-7 forms seeking wage-loss compensation for the period August 30 to October 24, 2009.

OWCP denied appellant’s claims for wage loss, by decision dated February 17, 2010, on the grounds that she had not submitted the required medical evidence to establish total disability.

Appellant requested an oral hearing on March 10, 2010 which was held on August 11, 2010.

By decision dated October 4, 2010, the hearing representative partially modified its prior decision and granted appellant four hours of compensation for each date that appellant received medical treatment during the period August 30 to October 24, 2009; however, it still denied her compensation for total disability on the grounds that the medical evidence she submitted did not support a finding of total disability.

On October 3, 2011 OWCP received appellant’s reconsideration request. In support of her reconsideration request, appellant submitted her own affidavit, a report from a Dr. Peckham dated September 28, 2011 addressing her period of total disability, as well as a progress note dated October 19, 2009.

On October 18, 2011 OWCP declined to perform a merit review of appellant’s case on the grounds that her request for reconsideration was untimely filed.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle an employee to a review of OWCP’s decision as a matter of right.2 This section, vesting OWCP with discretionary authority to determine whether it will review an award for or against compensation, provides:

“The Secretary of Labor may review an award for or against payment of compensation at any time on [her] own motion or on application. The Secretary, in accordance with the facts found on review, may--

(1) end, decrease or increase the compensation previously awarded; or

(2) award compensation previously refused or discontinued.”

2
Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied, 41 ECAB 458 (1990).

2
 OWCP, through its regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).3 As one such limitation, it has stated that it will not review a decision denying or terminating a benefit unless the application for review is filed within one year of the date of that decision.4 The Board has found that the imposition of this one-year time limitation does not constitute an abuse of the discretionary authority granted by OWCP under 5 U.S.C. § 8128(a).5

In computing the time for requesting reconsideration, the date of the event from which the designated period of time begins to run shall not be included when computing the time period. However, the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal holiday.6

ANALYSIS

OWCP improperly determined that appellant failed to file a timely application for review.
It issued its last merit decision in this case on October 4, 2010. Appellant requested reconsideration on October 3, 2011.

In the October 4, 2010 decision, OWCP denied appellant’s claim for compensation for the period August 30 to October 24, 2009. The appeal rights accompanying that decision advised appellant that he could request reconsideration within one year of the date of the decision. Counsel submitted a reconsideration request which the record reflects was received by OWCP on October 3, 2011. As the one-year time period began to run on October 5, 2010, the last day of the one-year time period was October 4, 2011. Therefore, appellant’s request was timely pursuant to section 10.607 of OWCP regulations.7

The Board also notes that appellant did submit additional medical evidence with her timely request for reconsideration, which addressed appellant’s claim of total disability. The case will be remanded for OWCP to further review her October 3, 2011 reconsideration request in accordance with its regulations and procedures.

CONCLUSION

The Board finds that OWCP erred in finding appellant’s October 3, 2011 reconsideration request was untimely filed.

3
Although it is a matter of discretion on the part of OWCP whether to review an award for or against payment of compensation, it has stated that a claimant may obtain review of the merits of a claim by: (1) showing that OWCP erroneously applied or interpreted a point of law; or (2) advancing a relevant legal argument not previously considered by OWCP; or (3) constituting relevant and pertinent new evidence not previously considered by OWCP. See 20 C.F.R. § 10.606(b). 4 Id. at § 10.607(b).
5
See cases cited supra note 2.
6
David McDavid, 57 ECAB 149 (2005).
7
See supra note 5.

3
 ORDER

IT IS HEREBY ORDERED THAT the October 18, 2011 decision of the Office of Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further proceedings consistent with this decision of the Board.

Issued: September 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4