S.P. and Department of Veterans Affairs, Veterans Administration Medical Center, East Orange, NJ (Board decision, October 21, 2014)

ECAB remand decision. The Board reversed OWCP’s April 11, 2014 refusal to reconsider S.P.’s claim and returned it for a merits decision. Whether she remained entitled to benefits for the accepted conditions remains unresolved. 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

S.P. sought reconsideration of OWCP’s decision that she no longer had continuing residuals from accepted work injuries. OWCP received her request within 39 days of its merits decision but waited until two days after her 180-day Board appeal period expired to deny it. The Board held that the delay deprived her of the chance to seek review of the merits. It reversed the reconsideration denial and ordered OWCP to review the claim on its merits and issue a new decision.

Decision snapshot

• Authority: 20 C.F.R. § 501.3(e), the Board appeal period; FECA Procedure Manual reconsideration timing rule.
• Outcome: April 11, 2014 reconsideration denial reversed; case remanded for a merits decision.
• Key point: OWCP’s delay in deciding reconsideration could not foreclose Board review of the underlying merits.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.P., Appellant
)
)
and ) Docket No. 14-1309
) Issued: October 21, 2014
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, East Orange, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
James D. Muirhead, 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 May 19, 2014 appellant, through her representative, filed a timely application for review of the April 11, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration. She argued that OWCP’s delay in denying her request jeopardized her right to appeal the merits of her case to the Board.

The most recent merit decision in this case is OWCP’s October 11, 2013 decision finding that the medical opinion evidence was insufficient to establish continuing residuals from the accepted medical conditions.1 On November 19, 2013 OWCP received appellant’s reconsideration request of the same date.

The Board finds that appellant is entitled to a merit review of her case. When a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the claimant’s

1
On May 17, 2011 a patient stepping off an examination table stumbled and fell into appellant’s left side as she sat at her desk. OWCP accepted her claim for aggravation of lumbar disc displacement with myelopathy and aggravation of lumbar postlaminectomy syndrome. Effective March 11, 2012, OWCP terminated benefits on the grounds that the weight of the medical evidence established that appellant had returned to her preinjury status. Thereafter, appellant filed several reconsideration requests seeking to reestablish benefits for the accepted aggravations. right to review of the merits of the case by the Board, OWCP should conduct a merit review.2 Appellant had 180 days, or until April 9, 2014, to appeal OWCP’s October 11, 2013 merit decision to the Board.3 OWCP received her reconsideration request within 39 days but did not issue its denial until April 11, 2014, two days after her appeal right had expired. Thus, OWCP’s delay jeopardized, indeed denied, appellant’s right to appeal the merits of her case.

Accordingly, the Board will reverse OWCP’s April 11, 2014 decision and remand the case for a merit review and an appropriate final decision on appellant’s claim for continuing benefits.4

IT IS HEREBY ORDERED THAT the April 11, 2014 decision of the Office of Workers’ Compensation Programs is reversed and the case remanded for further action.

Issued: October 21, 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

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.a, (October 2011).
3
20 C.F.R. § 501.3(e).
4
E.g., Joseph L. Cabral, 44 ECAB 152 (1992) (remanding the case for a merit decision where OWCP delayed more than 10 months in denying reconsideration).

2