S.Y. and U.S. Postal Service, Post Office, San Francisco, CA (Board decision, November 16, 2015)

ECAB remand decision. The Board set aside OWCP’s March 18, 2015 refusal to reconsider S.Y.’s claim and sent it back for a decision under the standard for timely requests. OWCP still must decide that request; this order does not resolve her entitlement to benefits. 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

S.Y., a postal mail clerk, had received benefits for accepted arm and wrist conditions until OWCP terminated them. She requested reconsideration of a later decision upholding that termination. OWCP treated her request as late because it arrived one year and two days after its February 21, 2014 decision. The Board found that the one-year deadline fell on a Saturday, extending the time to Monday, February 23, when OWCP received the request. It set aside the denial and directed OWCP to evaluate the request under the standard for timely reconsideration, leaving the benefit question unresolved.

Decision snapshot

• Authority: 20 C.F.R. §§ 10.606(b)(3), 10.607(a).
• Outcome: March 18, 2015 reconsideration denial set aside; case remanded to OWCP for a new decision.
• Key point: When the one-year deadline falls on a Saturday, a request received the following Monday is timely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.Y., Appellant
)
)
and ) Docket No. 15-1510
) Issued: November 16, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
San Francisco, CA, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On July 6, 2015 appellant filed a timely appeal from a March 18, 2015 decision of the Office of Workers’ Compensation Programs (OWCP), which found that her request for reconsideration was untimely filed and did not present clear evidence of error. The appeal was docketed as No. 15-1510.

On October 20, 2004 appellant, then a 50-year-old mail clerk, filed an occupational disease claim alleging that she developed bilateral epicondylitis, wrist tendinitis, and carpal tunnel syndrome as a result of her daily work activity. OWCP accepted her claim for bilateral tenosynovitis of the hand and wrist and bilateral lateral epicondylitis.

On November 26, 2012 OWCP terminated appellant’s wage-loss and medical compensation benefits. Appellant disagreed with the decision and requested an oral hearing. By decision dated June 12, 2013, an OWCP hearing representative affirmed the November 26, 2012 termination decision. On October 24, 2013 OWCP received appellant’s request for reconsideration. In a decision dated February 21, 2014, it affirmed the termination of her benefits. Appellant subsequently requested reconsideration of the February 21, 2014 OWCP decision on February 23, 2015 and submitted additional evidence. In a March 18, 2015 decision, OWCP denied her request for reconsideration on the grounds that it was not timely filed and failed to establish clear evidence of error.

The Board finds that appellant’s reconsideration request was timely. Section 10.607(a) of the implementing regulations provides that an application for reconsideration must be received within one year of the date of OWCP decision for which review is sought.1 In this case, the last OWCP merit decision was dated February 21, 2014 and one year elapsed on February 21, 2015. Appellant’s reconsideration request was received by OWCP on February 23, 2015. In computing the time for requesting reconsideration, however, the last day of the period shall be included unless it is a Saturday, a Sunday, or a legal holiday.2 As February 21, 2015 was a Saturday, appellant had until February 23, 2015 to request reconsideration. Thus, her request was timely received by OWCP.

Because appellant filed a timely reconsideration request, OWCP should have reviewed her request under the standard for a timely request,3 as opposed to the standard for untimely requests.4 The clear evidence of error standard utilized by OWCP in its March 18, 2015 decision is appropriate only for untimely reconsideration requests. The Board will set aside OWCP’s March 18, 2015 decision and remand the case for an appropriate final decision on appellant’s timely request for reconsideration.

1
20 C.F.R. § 10.607(a).
2
Debra McDavid, 57 ECAB 149 (2005); J.J., Docket No. 14-746 (October 17, 2014).
3
20 C.F.R. § 10.606(b)(3).
4
Section 10.607(b) states that OWCP will consider an untimely application for reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit decision. The reconsideration request must establish that OWCP’s decision was, on its face, erroneous. 20 C.F.R. § 10.607(b).

2
 IT IS HEREBY ORDERED THAT the March 18, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further proceedings consistent with this order.

Issued: November 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3