B.C. and U.S. Postal Service, Main Post Office, Chicago, IL (Board decision, May 16, 2014)

ECAB remand decision and order. The Board set aside OWCP’s March 18, 2013 decision and remanded the case because OWCP addressed recurrence of disability instead of B.C.’s request to reconsider termination of medical benefits. OWCP must decide whether that request was timely or established clear evidence of error. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a). B.C.’s eligibility for renewed medical benefits remains unresolved.

Plain-English summary

B.C., a Postal Service employee, asked OWCP to reconsider its termination of medical benefits for two earlier work injuries. OWCP instead ruled on whether she had sustained a recurrence of disability. The Board found that OWCP had addressed the wrong issue and declared its March 18, 2013 decision void from the start. It set aside that decision and returned the case for OWCP to determine whether her request for reconsideration was timely or showed clear evidence of error. The Board treated a later denial of an oral hearing as moot.

Decision snapshot

• Authority: Scope of reconsideration of an OWCP medical benefit termination.
• Outcome: March 18, 2013 decision set aside; case remanded for a decision on the reconsideration request.
• Key point: OWCP ruled on recurrence when B.C. had asked it to reconsider termination of medical benefits.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.C., Appellant
)
)
and ) Docket No. 13-1824
) Issued: May 16, 2014
U.S. POSTAL SERVICE, MAIN POST OFFICE,
)
Chicago, IL, 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 August 1, 2013 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ (OWCP) March 18, 2013 nonmerit decision denying her request for reconsideration and May 7, 2013 nonmerit decision denying her request for an oral hearing. The Board assigned Docket No. 13-1824.

This case has previously been before the Board with respect to the termination of appellant’s medical benefits.1 In a May 9, 2008 decision, the Board affirmed OWCP’s January 18 and November 15, 2007 decisions which terminated appellant’s medical benefits related to her May 7 and July 24, 1985 work injuries and found that she did not have any continuing employment-related residuals after January 18, 2007.2

1
Docket No. 08-571 (issued May 9, 2008).
2
In an August 21, 2013 decision, OWCP denied appellant’s June 12, 2013 request for reconsideration of the May 9, 2008 termination decision on the grounds that it was not timely filed and failed to establish clear evidence of error of the prior decision. It is well established that the Board and OWCP may not have concurrent jurisdiction over the same issue in a case. Consequently, any decision by OWCP on an issue pending before the Board is null and void. Douglas E. Billings, 41 ECAB 880, 895 (1990). As OWCP issued the August 21, 2013 decision after appellant filed her August 1, 2013 Board appeal and, as it is on the same issue pending before the Board, i.e., whether appellant’s request for reconsideration of the termination decision was timely filed or established clear evidence of error, it is null and void. See 20 C.F.R. § 501.2(c)(2). By letter dated September 20, 2012, appellant requested reconsideration “for the termination of my claim on January 18, 2007 for no residual of ongoing disability” and submitted evidence.

In the March 18, 2013 decision, OWCP failed to address the proper issue on reconsideration. OWCP stated that the request for reconsideration concerned whether appellant had sustained a recurrence of disability; yet the issue on reconsideration clearly was the termination of medical benefits.

The Board has duly considered the matter and finds that OWCP failed to address the relevant issue in this case. Appellant specifically requested reconsideration of OWCP’s decision terminating her medical benefits as of January 18, 2007 on the grounds that she no longer had any employment-related residuals or disability. Therefore, the decision is void ab initio, that is, void from its inception and of no force and effect3. OWCP should have adjudicated the issue of whether appellant’s September 20, 2012 request for reconsideration of the termination of her medical benefits was timely filed or established clear evidence of error. The Board finds that the case must be remanded to OWCP for a proper decision on this issue.4 Following this and such other development as deemed necessary, OWCP shall issue an appropriate decision on appellant’s September 20, 2012 request for reconsideration.

3
Cf. Donald E. Buckles, 43 ECAB 707 (1992), in which the Board found that its prior order remanding case was void ab initio where the Board had no authority, due to lack of jurisdiction, to issue the order at the time of issuance. In the instant case, OWCP improperly adjudicated a recurrence issue when appellant had requested reconsideration of the termination of her medical benefits. OWCP’s actions precluded appellant from a proper adjudication of her reconsideration request and, as such, it acted outside its authority when issuing the March 18, 2013 decision on the recurrence issue. 4 In light of the disposition of this case, the Board finds that the May 7, 2013 OWCP decision denying an oral hearing is moot.

2
 IT IS HEREBY ORDERED THAT the March 18, 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.

Issued: May 16, 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