S.T. and Department of Veterans Affairs, Central Arkansas Veterans Health Care System, Little Rock, AR (Board decision, April 3, 2015)

ECAB remand decision. June 10, 2014 refusal set aside and remanded. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

S.T., a Veterans Affairs nurse, asked OWCP to reconsider its denial of her neck and shoulder claim. OWCP treated an appeal form received after the one-year deadline as her request and applied the stricter test for late filings. The Board found that OWCP had already received her written reconsideration request on the deadline. It set aside the refusal and remanded for review under the proper timely-request standard.

Decision snapshot

• Authority: 20 C.F.R. § 10.607.
• Outcome: June 10, 2014 refusal set aside and remanded.
• Key point: A timely written request did not need to be on OWCP’s appeal form.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.T., Appellant
)
)
and ) Docket No. 15-382
) Issued: April 3, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
CENTRAL ARKANSAS VETERANS HEALTH
)
CARE SYSTEM, Little Rock, AR, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 5, 2014 appellant filed a timely appeal of a June 10, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA), the Board has jurisdiction over the June 10, 2014 nonmerit decision. The Board does not have jurisdiction over a decision on the merits of the claim.2

1
5 U.S.C. § 8101 et seq.
2
The last merit decision was an OWCP decision dated December 6, 2012. Under the Board’s Rules of Procedure an appeal must be filed within 180 days from the date of the last OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Board. One hundred and eighty days from June 10, 2014, the date of OWCP’s decision was December 8, 2014. Since using December 9, 2014, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is December 5, 2014, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
 ISSUE

The issue is whether OWCP properly determined that appellant’s request for reconsideration was untimely and failed to show clear evidence of error.

FACTUAL HISTORY

On September 7, 2012 appellant, then a 46-year-old nurse, filed an occupational disease claim (Form CA-2) alleging that she sustained a neck and shoulder injury as a result of her federal employment. On the claim form, she referred to work activity on June 30 and July 1, 2012.

By decision dated December 6, 2012, OWCP denied the claim for compensation. It found the medical evidence was insufficient to establish the claim.

On December 6, 2013 OWCP received a letter from appellant dated November 3, 2013 and additional evidence. Appellant noted that her claim had been denied on December 6, 2012 and she identified OWCP claim number. She stated that the letter and additional documents were “submitted in request for reconsideration” of her claim. The medical evidence submitted on December 6, 2013 included a July 11, 2013 report from Dr. Manuel Kelley, a Board-certified family practitioner, and an undated report from Dr. Obama Asemota, a surgeon.

On December 8, 2013 OWCP received an appeal request form dated December 5, 2013 from the December 6, 2012 decision. Appellant checked “reconsideration” on the form.

By decision dated June 10, 2014, OWCP found that appellant’s request for reconsideration was untimely. According to it, the request for reconsideration was not received until December 8, 2013. OWCP denied the request on the grounds that it did not show clear evidence of error.

LEGAL PRECEDENT

FECA provides that OWCP may review an award for or against compensation upon application by an employee (or his or her representative) who receives an adverse decision.3 The employee shall exercise this right through a request to the district office. The request, along with the supporting statements and evidence, is called the “application for reconsideration.”4

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP decision as a matter of right.5 This section vests OWCP with discretionary authority to determine whether it will review an award for or against compensation.6 OWCP, through 3 5 U.S.C. § 8128(a).
4
20 C.F.R. § 10.605.
5
Leon D. Faidley, Jr., 41 ECAB 104 (1989).
6
Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application.”

2 regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA. As one such limitation, 20 C.F.R. § 10.607 provides that an application for reconsideration must be received within one year of the date of OWCP’s decision for which review is sought.7 According to OWCP procedures, the date received is the determined by the document received date in the Integrated Federal Employees’ Compensation System (iFECS).8

ANALYSIS

In the present case, OWCP has made an improper finding that appellant’s application for reconsideration was untimely. The last merit decision was dated December 6, 2012. Appellant has one year to timely request reconsideration. The one-year time limitation begins to run on the date following the date of the original OWCP decision.9 Therefore, appellant had until December 6, 2013 to timely file an application for reconsideration.

On December 6, 2013 OWCP received a request dated November 13, 2013 for reconsideration of the December 6, 2012 decision. Appellant identified OWCP’s decision and its file number. She stated that she was requesting reconsideration and submitted additional evidence. Also received was a single appeal request form which was dated December 5, 2013 and received on December 8, 2013. As noted in OWCP procedures, an application for reconsideration does not have to be on an appeal request form.10 In this case, appellant’s reconsideration request was dated November 13, 2013 and received by OWCP on December 6, 2013 making the request timely.

The Board accordingly finds that appellant filed a timely application for reconsideration on December 6, 2013. OWCP reviewed the evidence under a clear evidence of error standard, which is appropriate only for untimely applications for reconsideration.11 The case will accordingly be remanded to OWCP for proper review of the timely application for reconsideration and issuance of an appropriate decision.12

CONCLUSION

The Board finds that OWCP improperly found appellant had submitted an untimely application for reconsideration.

7
20 C.F.R. § 10.607.
8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). This section provides that, for decisions prior to August 29, 2011, the application for reconsideration must be mailed within one year. 9 See C.K., Docket No. 10-1665 (issued May 25, 2011).
10
Supra note 8, Chapter 2.1602.3 (October 2011) (letter format is acceptable, and should contain sufficient detail to discern the decision being contested); see also E.R., Docket No. 13-1800 (issued February 21, 2014). 11 See J.P., Docket No. 12-1596 (issued March 27, 2013); 20 C.F.R. § 10.607(b).
12
See E.B., Docket No. 12-84 (issued May 15, 2012).

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 10, 2014 is set aside and the case remanded to OWCP for further action consistent with this decision of the Board.

Issued: April 3, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4