F.N. and Department of Veterans Affairs, Veterans Health Administration, New Jersey Health Care System, Lyons, NJ (Board decision, February 7, 2014)

ECAB remand decision. The Board set aside OWCP’s January 14 and July 1, 2013 decisions and returned the timely reconsideration request for review. The underlying claim remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

F.N. asked OWCP to reconsider a December 15, 2011 occupational disease denial. OWCP rejected the request as late because it received it more than a year after the denial. The Board held that the deadline extended to the next business day, when the request was received. It set aside both 2013 denials and remanded for review under the timely-request standard.

Decision snapshot

• Authority: FECA, 5 U.S.C. § 8101 et seq.
• Outcome: January 14 and July 1, 2013 reconsideration denials set aside and remanded.
• Key point: A deadline falling on Sunday extended to Monday, making the request timely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.N., Appellant
)
)
and
)
) Docket No. 13-1601
DEPARTMENT OF VETERANS AFFAIRS, ) Issued: February 7, 2014
VETERANS HEALTH ADMINISTRATION,
)
NEW JERSEY HEALTH CARE SYSTEM,
)
Lyons, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
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 2, 2013 appellant filed an application for review of the Office of Workers’ Compensation Programs’ (OWCP) nonmerit decisions dated January 14 and July 1, 2013. The appeal was docketed as No. 13-1601.

In a merit decision dated December 15, 2011, OWCP denied appellant’s occupational disease claim. In a letter dated December 13, 2012, received by OWCP on December 16, 2012, appellant’s attorney requested reconsideration of the December 15, 2011 decision. By decision dated January 14, 2013, OWCP denied appellant’s request for reconsideration without a merit review, finding the request was untimely and that appellant had not established clear evidence of error. It stated in the decision that appellant’s request was untimely because it was received more than one year after the decision was issued; therefore, she was not entitled to a merit review of the December 15, 2011 decision.

In a letter dated June 12, 2013, received by OWCP on June 20, 2013, appellant’s attorney requested reconsideration of the December 15, 2011 decision. He provided an Express Mail receipt demonstrating that appellant’s December 13, 2012 request for reconsideration failed upon attempted delivery on December 16, 2012 at 4:00 a.m. and was delivered on December 17, 2012 at 12:45 p.m. By decision dated July 1, 2013, OWCP again denied appellant’s request for reconsideration without a merit review, finding the request was untimely and that appellant had not established clear evidence of error. It noted in the decision that, per the Express Mail receipt provided by appellant’s attorney, her first reconsideration request was not received until December 16, 2012. OWCP stated that December 16, 2012 was not within one year of the December 15, 2011 decision, and therefore the request was untimely.

The Board finds that OWCP improperly determined in this case that appellant failed to file a timely application for review. 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.1 The time for requesting reconsideration of OWCP’s December 15, 2011 decision began to run on December 16, 2011, and thus would have expired on December 16, 2012, had this date not been a Sunday. The next business day was Monday, December 17, 2012. As appellant’s request for reconsideration was received on that date, it was timely. The case will thus be remanded to OWCP for application of the standard for reviewing timely requests for reconsideration.2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated July 1 and January 14, 2013 and are set aside. The case is remanded to OWCP for further proceedings consistent with this decision of the Board.

Issued: February 7, 2014
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
Angel M. Lebron, Jr., 51 ECAB 488 (2000); John B. Montoya, 43 ECAB 1148 (1992).
2
See Debra McDavid, 57 ECAB 149 (2005).

2