J.S. and U.S. Postal Service, Post Office, Denver, CO (Board decision, November 24, 2014)

ECAB final decision. The Board set aside OWCP’s April 9, 2014 decision and remanded J.S.’s case for an oral hearing. 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).

Plain-English summary

J.S. challenged OWCP's denial of his injury claim. His request for a hearing was postmarked within 30 days of the denial, but OWCP did not act on it. OWCP later rejected a reconsideration request as untimely. The Board held that J.S. had requested a hearing on time and that OWCP should address the hearing request before reconsideration. It set aside OWCP's later decision and directed OWCP to schedule an oral hearing.

Decision snapshot

• Authority: Hearing right under 5 U.S.C. § 8124(b).
• Outcome: April 9, 2014 decision set aside; case remanded for an oral hearing.
• Key point: A timely hearing request took priority over the later reconsideration requests.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 14-1203
) Issued: November 24, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Denver, CO, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 29, 2014 appellant filed a timely appeal from the April 9, 2014 decision of the Office of Workers’ Compensation Programs (OWCP), which found that his reconsideration request was untimely and did not present clear evidence of error. The appeal was docketed as No. 14-1203.

The Board has duly considered the matter and finds that the case is not in posture for decision. In a July 5, 2011 decision, OWCP denied appellant’s claim for a traumatic injury, finding that the medical evidence was insufficient to establish causal relationship. Appeal rights provided with this decision gave appellant an option to request a hearing within 30 days. Appellant subsequently requested a hearing in a letter received by OWCP on August 9 but postmarked on August 4, 2011.1 OWCP did not act on this request. In an appeal form dated March 16, 2014, appellant requested reconsideration. He indicated that he had previously requested reconsideration on March 16, 2012, but did not receive a response from OWCP. Appellant provided a copy of the request for reconsideration, which was received by OWCP on March 27, 2012. He submitted new arguments and new medical evidence in support of his

1
The postmark on the envelope was stamped August 4, 2011. OWCP regulations state that the timeliness of a hearing request is determined by postmark or other carrier’s date marking. 20 C.F.R. § 10.616(a). claim. In a decision dated April 9, 2014, OWCP found that the request was untimely filed and failed to present clear evidence of error.

Section 8124(b) of the Federal Employees’ Compensation Act states unequivocally that a claimant not satisfied with a decision of OWCP has a right, upon timely request, to a hearing before a representative of OWCP.2 Any claimant dissatisfied with a decision of OWCP shall be afforded an opportunity for an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral hearing or a review of the written record must be submitted, in writing, within 30 days (as determined by postmark or other carrier’s date marking) of the date of the decision for which a hearing is sought.3 If the request is not made within 30 days or if it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the written record as a matter of right.4

Appellant’s hearing request was postmarked August 4, 2011 and was within 30 days of the July 5, 2011 OWCP decision denying appellant’s claim. His hearing request was therefore timely. While appellant also requested reconsideration on March 27, 2012 and again on March 22, 2014, the Board has long held that, if there are simultaneous requests for a hearing and for reconsideration, OWCP is to proceed with adjudicating the hearing request before reconsideration.5 In this case, it was not proper for the claims examiner to exercise discretion that is within the purview of the Branch of Hearings and Review. Inasmuch as appellant’s hearing request was timely filed, the Board will set aside the April 9, 2014 decision and remand the case for OWCP to schedule an oral hearing.

2
5 U.S.C. § 8124(b); 20 C.F.R. § 10.616.
3
20 C.F.R. § 10.616(a).
4
Claudio Vazquez, 52 ECAB 496 (2001).
5
See D.M., Docket No. 10-2237 (issued June 28, 2011); See Eddie Franklin, 51 ECAB 223 (1999); Mary E.
Schipske, 43 ECAB 318 (1991); Mary G. Allen, 40 ECAB 190 (1988); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings & Review of the Written Record, Chapter 2.1601.3 (October 1992).

2
 IT IS HEREBY ORDERED THAT the April 9, 2014 decision is set aside and the case remanded for OWCP to schedule an oral hearing.

Issued: November 24, 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

3