B.B. and U.S. Postal Service, Post Office, Detroit, MI (Board decision, November 29, 2012)

ECAB remand decision. The Board set aside OWCP's March 21, 2012 refusal to reconsider B.B.'s claim and remanded to reconstruct the missing record. The reconsideration question remains open. 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

B.B., a postal employee, appealed a ruling that her reconsideration request was late and lacked clear evidence of error. The Board found that the record omitted the prior merits decision used to measure timeliness and most of a hearing transcript. It could not fairly review the appeal. It set aside the decision and ordered reconstruction and a new ruling.

Decision snapshot

• Authority: FECA reconsideration and complete record.
• Outcome: March 21, 2012 decision set aside and remanded.
• Key point: The missing prior decision and transcript prevented review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.B., Appellant
)
)
and ) Docket No. 12-1132
) Issued: November 29, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Detroit, MI, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 30, 2012 appellant filed an application for review with the Board of a March 21, 2012 decision of the Office of Workers’ Compensation Programs (OWCP). The March 21, 2012 decision found that appellant’s reconsideration request was not timely filed within one year of its October 14, 2003 decision and that the request also did not present clear evidence of error. The appeal was docketed as No. 12-1132.

The Board has duly considered the matter and notes that a portion of the record is missing.
As noted, the record indicates that on March 21, 2012 OWCP found that appellant’s February 14, 2012 request for reconsideration was untimely filed and failed to present clear evidence of error. It noted that the last merit decision was October 14, 2003. However, the record does not contain an October 14, 2003 decision. The Board also notes that the record indicates that a hearing was held on July 15, 2003, but only the first page of the hearing transcript is in the record. Accordingly, the Board cannot conduct a full and fair adjudication of appellant’s claim as the record is incomplete. The Board, therefore, finds that the appeal docketed as 12-1132 is not in posture for a decision. The case must be remanded to OWCP for reconstruction of the record and issuance of an appropriate decision in order to preserve her right to appeal to the Board.
IT IS HEREBY ORDERED THAT the March 21, 2012 decision of Office of Workers’ Compensation Programs be set aside and the case be remanded to OWCP for further proceedings consistent with this order.

Issued: November 29, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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