J.R. and Department of the Air Force, Air Force Systems Command, Hill Air Force Base, Ogden, UT (Board decision, March 2, 2015)

ECAB remand decision. The Board set aside OWCP’s July 7, 2014 reconsideration denial and returned the matter for findings and reasons. Whether further reconsideration is warranted 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

J.R. asked OWCP to reconsider an earlier denial of a shoulder injury claim and submitted a disc of records. OWCP rejected the request as late and said it showed no clear error, but did not discuss the submitted evidence or explain why it failed that standard. The Board held that OWCP had to state its findings and reasons clearly enough to identify the defect and allow review. It set aside the reconsideration denial and ordered a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126.
• Outcome: Reconsideration denial set aside; case remanded for findings and reasons.
• Key point: OWCP had to explain why the submitted evidence did not justify reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.R., Appellant
)
)
Docket No. 14-2073
and ) Issued: March 2, 2015
)
DEPARTMENT OF THE AIR FORCE,
)
AIR FORCE SYSTEMS COMMAND, HILL AIR )
FORCE BASE, Ogden, UT, 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 September 30, 2014 appellant filed a timely appeal of a July 7, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration.1 The Board assigned Docket No. 14-2073.

This case has previously been before the Board. In a June 4, 2012 decision,2 the Board affirmed a November 22, 2011 OWCP decision finding that appellant failed to establish that he was a federal employee within the meaning of the Federal Employees’ Compensation Appeals (FECA) for purposes of receiving compensation for his alleged April 29, 2009 left shoulder injury.3 In an order dated June 17, 2013,4 the Board granted the motion of the Director of 1 Appellant stated that he was appealing a September 10, 2014 OWCP decision. The Board notes, however, that the record does not contain an adverse decision issued by OWCP on that date. 2 Docket No. 12-351 (issued June 4, 2012).
3
On April 5, 2011 OWCP received an unsigned traumatic injury claim alleging that appellant, then a 59-year-old nonfederal truck driver, sustained a torn rotator cuff in his left shoulder when he stumbled and fell while walking in his backyard on April 29, 2009. 4 Order Granting Motion to Dismiss Petition for Reconsideration, Docket No. 12-351 (issued June 17, 2013).
OWCP and dismissed appellant’s petition for reconsideration of the Board’s June 4, 2012 decision on the grounds that it was not timely filed.

By letter dated June 9, 2014, appellant requested reconsideration before OWCP. He submitted a computer disc which contained medical records regarding his claimed injury and the findings of a labor commission.

In a July 7, 2014 decision, OWCP denied appellant’s request for reconsideration without a merit review. It found that the request was not filed within one year of its November 22, 2011 merit decision and did not establish clear evidence of error.

The Board has duly considered the matter and finds that this case is not in posture for decision. Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation.5 Its regulations also state that the decision shall contain findings of fact and a statement of reasons.6 The reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it.7 In its July 7, 2014 decision, OWCP did not discharge its responsibility to provide appellant a statement explaining the disposition so that appellant could understand the basis for the decision as well as the precise defect and the evidence needed to overcome the denial of his claim. The Board notes that OWCP denied appellant’s June 9, 2014 request for reconsideration because it was untimely, but failed to provide any discussion of the evidence he submitted in support of his reconsideration request and to explain how the evidence failed to establish clear evidence of error.

Accordingly, the case must be returned to OWCP for a proper decision which includes findings of fact and a clear and precise statement regarding appellant’s request for reconsideration on the denial of his traumatic injury claim or why he is not entitled to further reconsideration. Following this and such further development as OWCP deems necessary, it shall issue an appropriate decision.

5
5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).
6
20 C.F.R. § 10.126; see also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket No. 09-956 (issued April 15, 2010).
7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013).

2
 IT IS HEREBY ORDERED THAT the July 7, 2014 decision of the Office of Workers’ Compensation Programs’ decision is set aside and the case remanded for further action consistent with this order of the Board.

Issued: March 2, 2015
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

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