T.N. and Department of the Army, Anniston Army Depot, Anniston, AL (Board decision, September 14, 2015)

ECAB final decision. The Board set aside OWCP’s January 14, 2015 denial of reconsideration as null and void because OWCP issued it while the same issue was on appeal to the Board. The Board did not reach the underlying occupational disease claim in this decision. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

T.N., an Army Depot police officer, sought compensation for conditions he attributed to chemical paint exposure. After OWCP denied his claim and a later reconsideration request, he appealed the reconsideration issue to the Board. OWCP issued another decision on that same issue while the appeal remained pending. The Board found that OWCP lacked jurisdiction to decide it during the appeal. It set aside the January 14, 2015 decision as null and void without ruling on whether the underlying claim was timely or compensable.

Decision snapshot

• Authority: 20 C.F.R. § 10.626.
• Outcome: January 14, 2015 OWCP reconsideration decision set aside as null and void.
• Key point: OWCP could not decide an issue that was already before the Board on appeal.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.N., Appellant
)
)
and ) Docket No. 15-1258
) Issued: September 14, 2015
DEPARTMENT OF THE ARMY, ANNISTON
)
ARMY DEPOT, Anniston, AL, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 15, 2015 appellant timely appealed a January 14, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from the last merit decision of May 1, 2013 to the filing of the current appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.

ISSUE

The issue is whether OWCP properly refused to reopen appellant’s case for further review of the merits as his December 22, 2014 request for reconsideration was untimely filed and did not demonstrate clear evidence of error

FACTUAL HISTORY

This case was previously before the Board.2 On March 14, 2012 appellant, then a 32- year-old police officer, filed an occupational disease claim (Form CA-2) for neurological and 1 5 U.S.C. §§ 8101-8193 (2006).
2
Docket No. 15-0440 (issued April 14, 2015). respiratory disorders, which he attributed to exposure to chemical agent resistant coating (CARC) paint. He indicated that he first became aware of his illness on October 17, 2007, but it was not until October 14, 2011 that he first realized his illness was caused or aggravated by his employment.

By decision dated April 23, 2012, OWCP denied the claim because appellant had not factually established his claimed occupational exposure.3 However, the Branch of Hearings and Review set aside the April 23, 2012 decision and remanded the case to OWCP for further development regarding whether appellant timely filed his claim. In a November 15, 2012 decision, OWCP denied appellant’s claim because it was untimely filed. The Branch of Hearings and Review affirmed OWCP’s decision on May 1, 2013.

When the case was last before the Board, OWCP had issued a June 19, 2014 decision denying reconsideration. Appellant took issue with the denial of reconsideration and filed an appeal with the Board on December 15, 2014. He also filed a request for reconsideration with OWCP on December 22, 2014. While the case was pending before the Board, OWCP issued a January 14, 2015 decision denying reconsideration. It found that appellant’s latest request for reconsideration was untimely filed and failed to present clear evidence of error.

In a decision dated April 14, 2015, the Board set aside the June 19, 2014 nonmerit decision because OWCP neglected to consider evidence appellant submitted on reconsideration.4 Following the Board’s remand of the claim to OWCP, appellant filed the current appeal challenging OWCP’s January 14, 2015 decision denying reconsideration.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a matter of right.5 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.6 One such limitation is that the application for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.7 When a request for reconsideration is untimely, OWCP will undertake a limited review to determine whether the application presents clear evidence of error on the part of OWCP in its most recent merit decision.8

3
OWCP also found that the medical evidence did not contain a diagnosis related to appellant’s claimed occupational exposure.
4
The Board’s April 14, 2015 decision is incorporated herein by reference.
5
This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a). 6 20 C.F.R. § 10.607 (2014).
7
Id. at § 10.607(a).
8
Id. at § 10.607(b).

2
 ANALYSIS

While a case is on appeal to the Board, OWCP has no jurisdiction over the claim with respect to issues which directly relate to the issue or issues on appeal.9 Under Docket No. 15- 0440, the Board had jurisdiction over the claim beginning December 15, 2014, and did not issue its decision until April 14, 2015. The question before the Board at that time was whether appellant established a basis for further review of OWCP’s May 1, 2013 merit decision, which denied appellant’s claim as untimely. This is the same issue OWCP addressed in its January 14, 2015 decision. Accordingly, the Board finds that OWCP lacked jurisdiction when it issued the January 14, 2015 decision denying merit review. Therefore, OWCP’s January 14, 2015 decision is null and void.

CONCLUSION

The Board finds that OWCP did not have jurisdiction over appellant’s claim at the time it issued its January 14, 2015 nonmerit decision. Consequently, the January 14, 2015 OWCP decision is null and void.

ORDER

IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of Workers’ Compensation Programs is set aside as null and void.

Issued: September 14, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

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

9
Id. at § 10.626; see, e.g., Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).

3