E.R. and U.S. Postal Service, Post Office, San Juan, PR (Board decision, February 21, 2014)

ECAB remand decision. The Board set aside OWCP’s May 9, 2013 decision and returned the reconsideration request for review under the timely-request standard. 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

E.R. challenged OWCP’s denial of an emotional condition claim in a letter sent within one year of the last merit decision. OWCP later treated a separate appeal form as the request and denied reconsideration as untimely. The Board found that the earlier letter sufficiently identified the challenged decision even without using the word reconsideration. It set aside the May 9, 2013 decision and remanded for review of the timely request.

Decision snapshot

• Authority: FECA, 5 U.S.C. § 8101 et seq.
• Outcome: May 9, 2013 reconsideration denial set aside and remanded.
• Key point: A letter can be a reconsideration request when it identifies the contested decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.R., Appellant
)
)
and ) Docket No. 13-1800
) Issued: February 21, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
San Juan, PR, 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 29, 2013 appellant filed an application for review of a May 9, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which denied his February 24, 2012 request for reconsideration on the grounds that the request was untimely filed and the evidence failed to establish clear evidence of error. The appeal was docketed as No. 13-1800.

In a September 23, 2011 decision, OWCP denied modification of an August 30, 2010 decision which denied appellant’s claim for an emotional condition. In a February 24, 2012 letter, received by OWCP on March 6, 2012, appellant stated, “I feel my case should be approved and I be placed on the periodic rolls” and submitted evidence in support of his claim from his treating physician, Dr. Luis Polo, who performed a psychiatric evaluation, that he hoped “clears the record.” The letter was sent to the address that OWCP’s September 23, 2011 decision provided for reconsideration requests. In an appeal request form dated February 2, 2012 and received on May 2, 2013, appellant requested reconsideration of OWCP’s decision dated August 30, 2010. In a May 9, 2013 decision, OWCP denied the request finding that appellant’s reconsideration request received on May 2, 2013 was not filed within one year of OWCP’s September 23, 2011 merit decision.

The Board has considered the matter and finds that the February 24, 2012 request constituted a timely request for reconsideration. OWCP regulations provide that an application for reconsideration must be received by OWCP within one year of the date of the OWCP decision for which review is sought.1 OWCP procedures note that the one-year time limit for requesting reconsideration begins on the date of the original decision and also accompanies any subsequent merit decision on the issues.2 The procedures further note that the “request does not have to be submitted on the appeal request form; letter format is acceptable” and “the word ‘reconsideration’ does not need to be stated in the request for it to be considered valid, but sufficient detail should be provided to discern the decision being contested.”3

As the September 23, 2011 OWCP decision was a merit decision, appellant had one year from September 23, 2011 to request reconsideration. The Board finds that appellant’s letter dated February 24, 2012 and received by OWCP on March 6, 2012 was a request for reconsideration of the September 23, 2011 OWCP decision. Although appellant did not use the word “reconsideration” he provided sufficient detail to discern that he was contesting the denial of his claim. The Board finds that appellant’s request was timely, as it was dated February 24, 2012 and received on March 6, 2012, and was clearly made within one year of the OWCP’s September 23, 2011 decision. Because appellant filed a timely reconsideration request, the case will be remanded to OWCP for application of the standard for reviewing timely requests for reconsideration.4 The “clear evidence of error” standard utilized by OWCP in its May 9, 2013 decision is appropriate only for untimely reconsideration requests. After such further development as OWCP deems necessary, it should issue an appropriate decision to protect appellant’s appeal rights.

1
20 C.F.R. § 10.607(a).
2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(a)(1-2) (October 2011). See Jack D. Johnson, 57 ECAB 593 (2006) (the Board has held that there may be a request for reconsideration in situations where a letter does not contain the word reconsideration). 4 See 20 C.F.R. § 10.606(b)(2).

2
 IT IS HEREBY ORDERED THAT the May 9, 2013 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further action consistent with this order of the Board.

Issued: February 21, 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

3