N.D. and U.S. Postal Service, Post Office, East Brunswick, NJ (Board decision, July 22, 2014)

ECAB interlocutory order. The Board granted reconsideration of its earlier dismissal and reinstated N.D.’s appeal for a full decision. This order does not decide the underlying compensation appeal. The release contains conflicting dates for the mailing and dismissal, so its timeliness calculation cannot be reconciled from the stated dates.

Plain-English summary

The Board had dismissed N.D.’s appeal of an OWCP decision as untimely. N.D. sought reconsideration and submitted a certified mail receipt and counsel’s affidavit about when the appeal was mailed. The Board found the appeal timely, set aside its dismissal, and ordered the appeal to go forward for a full decision. It did not decide whether OWCP’s underlying decision was correct. The release’s stated mailing date is later than the dismissal date and more than 180 days after the stated OWCP decision date; the full text preserves those dates as published.

Decision snapshot

• Authority: Board appeal filing rule, 20 C.F.R. § 501.3(e), as cited in the order.
• Outcome: Reconsideration granted; dismissal set aside and appeal reinstated.
• Key point: The Board restored the appeal for a later merits decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.D., Appellant
)
)
and ) Docket No. 13-108
) Issued: July 22, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
East Brunswick, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

ORDER GRANTING PETITION FOR RECONSIDERATION

Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1 COLLEEN DUFFY KIKO, Judge

On February 12, 2013 the Board issued an order dismissing appeal in the above entitled case. By that order, the Board dismissed appellant’s appeal of an April 16, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), docketed as No. 13-108, on the grounds that the appeal was not filed within 180 days from the date of issuance of OWCP’s decision.2

On February 25, 2014 appellant, through counsel, filed a petition for reconsideration.

On March 18, 2014 the Director of OWCP filed an answer to the petition for reconsideration, requesting the Board to deny the petition. The Clerk of the Board served appellant a copy of the Director’s response on March 25, 2014.

The Board has carefully considered the matter and concludes that the petition should be granted and the Board’s February 12, 2013 order dismissing appellant’s appeal be set aside.

In the petition for reconsideration, appellant’s counsel contended that the appeal request was timely and submitted supporting evidence, including a copy of a certified mail receipt from 1 Effective May 20, 2014, Patricia Howard Fitzgerald, was appointed Acting Chief Judge.
2
20 C.F.R. § 501.3(e) (2008). the U.S. Postal Service dated October 15, 2013 and counsel’s affidavit stating that he had mailed appellant’s appeal request with the Board on October 15, 2013. The Board has reviewed the evidence submitted by appellant and finds it establishes that her request was mailed on October 15, 2013, which was within 180 days of the April 16, 2012 OWCP decision. Thus, the Board finds that the appeal docketed as 13-108 is timely filed, sets aside the February 12, 2013 Board’s dismissal order and reinstates the appeal for a full decision and order by the Board.

IT IS HEREBY ORDERED THAT appellant’s February 25, 2014 petition for reconsideration is granted. The appeal docketed as No. 13-108 shall go forward.3

Issued: July 22, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3
Richard J. Daschbach, Chief Judge, who participated in the preparation of the order, was no longer a member of the Board after May 16, 2014.

2