F.H. and Department of Veterans Affairs, Veterans Administration Medical Center, Los Angeles, CA (Board decision, August 12, 2013)

ECAB remand decision. The Board set aside OWCP’s December 11, 2012 denial of reconsideration and remanded for a merits decision. Whether F.H. remains entitled to compensation or medical treatment remains unresolved. 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

OWCP terminated F.H.’s compensation and medical treatment after finding that his accepted work injury no longer caused disability or required treatment. He sought reconsideration the next month, but OWCP waited five months before denying review without reaching the merits. The Board found that this delay effectively deprived him of an opportunity to appeal the termination decision within the 180-day deadline. It set aside the reconsideration denial and required OWCP to issue a merits decision that preserves his appeal rights. The Board did not decide whether the termination was correct.

Decision snapshot

• Authority: Board appeal timing under 20 C.F.R. § 501.3.
• Outcome: December 11, 2012 reconsideration denial set aside; merits review ordered on remand.
• Key point: OWCP’s delayed response to a reconsideration request had foreclosed timely Board review of the prior merits decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.H., Appellant
)
)
and ) Docket No. 13-966
) Issued: August 12, 2013
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Los Angeles, CA, 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 March 18, 2013 appellant filed a timely appeal from a December 11, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration. The Board docketed the appeal as No. 13-966.

The Board notes that the most recent decision issued by OWCP is a June 7, 2012 decision terminating appellant’s compensation and authorization for medical treatment on the grounds that he had no further employment-related disability or condition causally related to his June 5, 2001 employment injury. By an Appeal Request Form dated July 3, 2012, received by OWCP on July 10, 2012, appellant requested reconsideration of the June 7, 2012 termination decision. OWCP did not issue a decision on appellant’s request for reconsideration until December 11, 2012, five months after the request was made. OWCP’s procedures manual provides:

“When a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the claimant’s right to review of the merits of the case by the Board, OWCP should conduct a merit review. That is, the basis of the original decision and any new evidence should be considered and, if there is no basis to change the original decision, an order denying modification (rather than denying the application for review) should be prepared. There is no obligation to conduct a merit review on insufficient evidence if the maximum 180-day time limit for requesting review by the Board will have expired within the 90-day period following the OWCP’s receipt of the claimants’ reconsideration request….”1

The Board finds that OWCP’s delay of five months in issuing a decision on appellant’s reconsideration request effectively precluded him from appealing OWCP’s most recent merit decision to the Board.2 Had OWCP acted upon his request within 90 days, he would have been able to seek review of OWCP’s June 7, 2012 merit decision before the Board.3

Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the merits of the claim in order to preserve appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the December 11, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: August 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

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011).
2
See 20 C.F.R. §§ 501.2(c) and 501.3. For OWCP decision issued on or after November 19, 2008, the Board has jurisdiction to consider an appeal form a final decision of OWCP that is filed within 180 days of such OWCP decision. 3 See Geoma R. Munn, 50 ECAB 242 (1999); Debra E. Stoler, 43 ECAB 561 (1992) (remanding cases for merit review where OWCP delayed issuance of reconsideration decisions).

2