J.N. and Department of Justice, Federal Bureau of Investigation, Records Management Division, Winchester, VA (Board decision, February 12, 2013)

ECAB remand decision. The Board set aside OWCP's May 7, 2012 refusal to reconsider and remanded for review under the standard for a timely request. The underlying injury claim remains unresolved on reconsideration. 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).

Plain-English summary

J.N., an FBI supervisory research analyst, requested reconsideration of an earlier denial of a claim involving an incident at work. OWCP treated her request as late and applied the clear-error standard. A date stamp showed OWCP received it on the last day of the applicable one-year period. The Board found the request timely, set aside the refusal, and directed OWCP to apply the proper reconsideration standard.

Decision snapshot

• Authority: Reconsideration timeliness under 20 C.F.R. § 10.607 and review under § 10.606(b)(2).
• Outcome: May 7, 2012 reconsideration refusal set aside; case remanded.
• Key point: The receipt date placed the request within one year of the prior merits decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.N., Appellant
)
)
and
)
) Docket No. 12-1543
DEPARTMENT OF JUSTICE, FEDERAL ) Issued: February 12, 2013
BUREAU OF INVESTIGATION, RECORDS
)
MANAGEMENT DIVISION, Winchester, VA,
)
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 July 9, 2012 appellant filed a timely appeal from a nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) dated May 7, 2012 that denied her request for reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of error.1 The Board docketed the appeal as No. 12-1543.

The Board has reviewed the record on appeal and finds that the case must be remanded to OWCP for application of the appropriate standard of review because appellant’s request for reconsideration was timely submitted.

The most recent merit decision of OWCP was issued on February 7, 2011. As shown by a date stamp on a letter requesting reconsideration dated February 6, 2012, appellant submitted

1
On July 15, 2010 appellant, a supervisory research analyst, filed a claim alleging post-traumatic stress disorder (PTSD), cervical disc syndrome, and facial pain syndrome caused by a May 25, 2010 incident when a security officer asked her to check a women’s restroom at the employing establishment to see if there was any obvious fecal matter; appellant complied and observed feces on a toilet seat. In a September 15, 2010 decision, OWCP found the claimed incident established but denied the claim. In a February 7, 2011 decision, an OWCP hearing representative denied the claim because the medical evidence was insufficient to establish that appellant sustained an emotional or physical condition due to the compensable work factor. her reconsideration request to OWCP on February 7, 2012. She also submitted new evidence, including medical evidence from two physicians. By decision dated May 7, 2012, OWCP denied appellant’s reconsideration request on the grounds that it was untimely filed and failed to establish clear evidence of error.

OWCP’s regulations in effect at the time that OWCP issued the February 7, 2011 decision provided:

“An application for reconsideration must be sent within one year of the date of the OWCP decision for which review is sought. If submitted by mail, the application will be deemed timely if postmarked by the U.S. Postal Service within the time period allowed. If there is no such postmark, or it is not legible, other evidence such as (but not limited to) certified mail receipts, certificate of service, and affidavits, may be used to establish the mailing date.”2

The Board has long held that the one-year time limitation begins to run on the date following the date of the original OWCP decision.3 Thus, in the instant case, appellant’s reconsideration request would be considered timely if submitted on February 7, 2012. On appeal she indicated that she hand-delivered her reconsideration request to OWCP, and as shown by the date-stamp on her reconsideration letter dated February 6, 2012, it was received by OWCP on February 7, 2012.

As appellant’s reconsideration request dated February 6, 2012 and stamped received on February 7, 2012 was made within one year of the Board’s merit decision dated February 7, 2011, the Board concludes that the request was timely. In its May 7, 2012 decision denying appellant’s reconsideration request, OWCP applied the clear evidence of error legal standard. This standard is the appropriate standard only for cases in which a reconsideration request is untimely filed.4 Since OWCP erroneously reviewed the evidence submitted by appellant in support of her reconsideration request under the clear evidence of error standard, the Board will remand the case to OWCP for application of the standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R. § 10.606(b)(2).

2
20 C.F.R. § 10.607 (1999). Current OWCP regulations provide that application for reconsideration must be received within one year of the date of OWCP decision for which review is sought. 20 C.F.R. § 10.607(a) (2012). 3 Darletha Coleman, 55 ECAB 143 (2003).
4
See Donna M. Campbell, 55 ECAB 241 (2004).

2
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 7, 2012 is set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: February 12, 2013
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

3