C.C. and Department of Veterans Affairs, Veterans Health Administration, Topeka, KS (Board decision, July 29, 2014)

ECAB remand decision and order. The Board set aside OWCP’s November 29, 2013 decision rejecting C.C.’s request for review as late. OWCP must properly issue a new decision after having mailed earlier decisions to an outdated address; the injury claim remains unresolved.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 unless this 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

C.C. notified OWCP of a new address before it denied her injury claim. OWCP sent the denial and a later decision refusing written-record review to her old address. The Board held that she could not be expected to request review within a deadline measured from a decision she did not receive because it was sent incorrectly. It set aside the refusal and returned the case for OWCP to issue a new decision properly.

Decision snapshot

• Authority: 20 C.F.R. § 10.127, mailing a decision to the employee’s last known address.
• Outcome: Late-review refusal set aside; case remanded for a properly issued new decision.
• Key point: The presumption that mailed notice was received does not apply when OWCP used an incorrect address.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.C., Appellant
)
)
and ) Docket No. 14-745
) Issued: July 29, 2014
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Topeka, KS, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On February 18, 2014 appellant filed an appeal from a November 29, 2013 decision of the Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No. 14-745.

On April 10, 2013 appellant filed a traumatic injury claim (Form CA-1). On her Form CA-1 she listed her address. By letters dated April 22 and 30, 2013, OWCP informed appellant the case number assigned to her claim and advised her of the medical and factual evidence needed. It mailed these letters to the address noted on the Form CA-1.

Although properly addressed based on the information provided by appellant on her Form CA-1, the U.S. Post Office returned the April 22 and 30, 2013 letters to OWCP as undeliverable. It noted on the envelope: return to sender, not deliverable as addressed, unable to forward. OWCP received the nondelivered letters on May 7 and 28, 2013.

OWCP reissued the June 3, 2013 development letter to an updated address. In an undated letter received July 5, 2013, appellant responded to OWCP’s development letter. She also requested that her address be changed and provided a new address. By decision dated July 9, 2013, OWCP denied appellant’s claim finding that the evidence of record failed to establish fact of injury. The decision was addressed to the previous address of record.

In a telephone call dated August 7, 2013, a claims examiner advised appellant that her case had been denied and advised her to follow her appeal rights.

By letter dated August 7, 2013, appellant informed OWCP that she had not received her decision. She further noted her new address.

On October 7, 2013 appellant requested review of the written record before the Branch of Hearings and Review, again noting her new address.

By decision dated November 29, 2013, the Branch of Hearings and Review denied appellant’s request for a review of the written record finding that her request was not made within 30 days of the July 9, 2013 OWCP decision. This decision was also mailed to her previous address of record.

On December 30, 2013 the November 29, 2013 decision was returned to OWCP as being nondeliverable and unable to forward.

OWCP regulations provide that a copy of the decision shall be mailed to the employee’s last known address.1 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an individual in the ordinary course of business was received by that individual. This presumption arises when it appears from the record that the notice was properly addressed and duly mailed.2 However, as a rebuttable presumption, receipt will not be assumed when there is evidence of nondelivery.3 Also, it is axiomatic that the presumption of receipt does not apply where a notice is sent to an incorrect address.4

OWCP mailed the July 9 and November 29, 2013 decisions to an incorrect address.
Appellant had requested her address be changed, prior to the issuance of the July 9, 2013 decision, and again noted her new address on August 7 and October 7, 2013, yet the November 29, 2013 decision was again mailed to the incorrect address. Thus, appellant could not have timely requested an appeal from an OWCP decision that she did not receive.5

As OWCP mailed appellant’s decisions to an incorrect address, the Board finds that OWCP did not properly issue its July 9, 2013 decision.6 As the July 9, 2013 decision was

1
20 C.F.R. § 10.127.
2
See Michelle Lagana, 52 ECAB 187 (2000).
3
See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).
4
See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).
5
E.C., Docket No. 11-1774 (issued February 27, 2012).
6
See Tammy J. Kenow, 44 ECAB 619 (1993).

2 improperly issued, appellant could not have timely requested an appeal for review of the written record which was denied by OWCP in its November 29, 2013 decision. For these reasons, the case will be remanded to OWCP for proper issuance of a de novo decision.7 Accordingly,

IT IS HEREBY ORDERED THAT the November 29, 2013 nonmerit decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further action consistent with this order of the Board.

Issued: July 29, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7
M.C., Docket No. 12-1778 (issued April 12, 2013); J.M., Docket No. 12-543 (issued March 12, 2013).

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