P.R. and U.S. Postal Service, Post Office, Needham, MA (Board decision, May 12, 2014)

ECAB remand decision. The Board set aside OWCP's October 3, 2013 denial of reconsideration and sent the request back for review under the standard for a timely filing. OWCP still had to decide that request, so the underlying claim was unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. 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

P.R., a postal worker, sought reconsideration of OWCP's July 13, 2012 refusal to add a consequential back injury to his claim. OWCP received the request on July 15, 2013 and treated it as outside the one-year filing period. The Board held that the anniversary date fell on a Saturday, so the deadline extended to the next business day, Monday, July 15. It set aside the untimeliness ruling and sent the request back for review under the timely-request standard without deciding whether the back injury should be accepted.

Decision snapshot

• Authority: Reconsideration deadline, 20 C.F.R. § 10.607(a); timely-request standard, 20 C.F.R. § 10.606(b)(3).
• Outcome: October 3, 2013 untimeliness ruling set aside; OWCP to review the timely request.
• Key point: A one-year deadline ending on Saturday extended to the next business day.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.R., Appellant
)
)
and ) Docket No. 14-300
) Issued: May 12, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Needham, MA, Employer
)
__________ )

Appearances: Case Submitted on the Record
John L. Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On November 25, 2013 appellant, through his attorney, filed a timely appeal from the October 3, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration of a July 13, 2012 merit decision on the grounds that it was untimely filed and failed to establish clear evidence of error. On appeal, appellant’s attorney contends that appellant’s request for reconsideration was timely filed and that, therefore, OWCP improperly reviewed the reconsideration request under the standard for untimely requests. The Board docketed the appeal as No. 14-300.

The Board has reviewed the case record on appeal and finds that the case must be remanded to OWCP for application of the appropriate standard of review because appellant’s request for reconsideration was timely submitted.

OWCP accepted appellant’s claim for small plantar calcaneal spur of the left heel and left tibialis tendinitis. By decision dated May 16, 2011, it terminated his benefits effective June 4, 2011. In a decision dated December 15, 2011, OWCP’s hearing representative affirmed the termination of benefits, but remanded for OWCP to undertake further development of the evidence and to issue a de novo decision on the issue of whether the claim should be expanded for a consequential back injury and, if so, whether appellant was entitled to wage-loss compensation due to the disability caused by the consequential injury. In a decision dated July 13, 2012, OWCP denied his request for expansion of his claim to include a consequential injury. In an appeal request form dated July 5, 2013 and received by OWCP on July 15, 2013, appellant requested reconsideration. In a decision dated October 3, 2013, it denied his request for reconsideration on the grounds that it was untimely filed.

The Board has considered the matter and finds that the request for reconsideration received on July 15, 2013 constituted a timely request for reconsideration. Section 10.607(a) of the implementing regulations provide that an application for reconsideration must be received within one year of the date of OWCP’s decision for which review is sought.1 The Board has held that, in computing a time period, the date of the event from which the designated period of time begins to run shall not be included while the last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday.2 The last merit decision in this case is dated July 13, 2012 and appellant’s request for reconsideration was received by OWCP on July 15, 2013. Appellant had one year from the July 13, 2012 decision to request reconsideration. The Board notes, however, that July 13, 2013 fell on a Saturday. It is well established that when a time limitation expires on a nonbusiness day, the limitation is extended to include the next business day.3 Therefore, because the time limitation for filing a request for reconsideration fell on Saturday, the time period for filing a request for reconsideration did not expire until the next business day, which was Monday, July 15, 2013.

The Board concludes that appellant’s request for reconsideration was received by the close of business on July 15 2013, rendering it timely filed. The case will be remanded to OWCP for consideration of appellant’s request under the standard for reviewing a timely request for reconsideration.4

1
20 C.F.R. § 10.607(a).
2
John B. Montoya, 43 ECAB 1148, 1151 (1992); see Donna A. Christley, 41 ECAB 90, 91 (1989).
3
See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005); Angel M.
Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990); FECA Program No. 250 (issued January 29, 1979). 4 The standard is found at 20 C.F.R. § 10.606(b)(3).

2
IT IS HEREBY ORDERED THAT the October 3, 2013 decision of the Office of Workers’ Compensation Programs is set aside. The case is remanded to OWCP for application of the proper standard for reviewing a timely request for reconsideration.

Issued: May 12, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

3