M.J. and Department of Homeland Security, Emergency Preparedness & Response, Alexandria, VA (Board decision, October 1, 2014)

ECAB remand decision. The Board set aside OWCP’s refusal to reconsider M.J.’s injury claim and returned the request for review under the standard for timely filings. The underlying injury claim remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the appealed decision 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

OWCP denied M.J.’s traumatic injury claim on March 20, 2013. Her request for reconsideration reached OWCP on March 20, 2014, but OWCP treated it as more than one year late and declined a merits review. The Board held that the one-year period began the day after the original decision and ended on March 20, 2014, making her request timely. It set aside the refusal and directed OWCP to review the request under the rules for timely reconsideration. The Board did not decide whether M.J. was entitled to injury benefits.

Decision snapshot

• Authority: One-year reconsideration period, 20 C.F.R. § 10.607(a).
• Outcome: OWCP’s refusal to reconsider set aside; request remanded for review as timely.
• Key point: A request received on the anniversary of OWCP’s decision was within the one-year period calculated from the following day.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.J., Appellant
)
)
and
)
) Docket No. 14-1100
DEPARTMENT OF HOMELAND SECURITY, ) Issued: October 1, 2014
EMERGENCY PREPAREDNESS &
)
RESPONSE, Alexandria, VA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 16, 2014 appellant, through counsel, filed an application for review of an Office of Workers’ Compensation Programs’ (OWCP) nonmerit decision dated March 27, 2014. The appeal was docketed as No. 14-1100.

In a merit decision dated March 20, 2013, OWCP denied appellant’s traumatic injury claim. In a letter dated March 20, 2014, received by OWCP on March 20, 2014, appellant requested reconsideration of the March 20, 2013 decision. By decision dated March 27, 2014, 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 March 20, 2013 decision.

The Board finds that OWCP improperly determined in this case that appellant failed to file a timely application for reconsideration. 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. 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 March 20, 2013 decision began to run on March 21, 2013 and thus would have expired on March 20, 2014.

Pursuant to OWCP regulations at 20 C.F.R. § 10.607(a) an application for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought.

As appellant’s request for reconsideration was received on that date, March 20, 2014, it was timely. The case will thus be remanded to OWCP for application of the standard for reviewing timely requests for reconsideration.2

Accordingly, the Board finds that appellant has filed a timely appeal of the March 20, 2013 merit decision. The case will be remanded for OWCP to further review appellant’s March 20, 2014 reconsideration request in accordance with its regulations and procedures.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated March 20, 2014 is set aside. The case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: October 1, 2014
Washington, DC

Christopher J. Godfrey, 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