S.H. and U.S. Postal Service, Post Office, Bellmawr, NJ (Board decision, April 1, 2016)

ECAB remand decision. The Board reversed OWCP’s May 4, 2015 refusal to reconsider the claim and remanded for a merit review and a new decision. Entitlement to compensation 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.H., a Postal Service employee, asked OWCP to reconsider its denial of an expanded injury claim. OWCP received her request while she still had time to appeal the merits, but waited until after that appeal period expired to deny reconsideration. The Board held that the delay jeopardized her right to review of the merits. It reversed the refusal and sent the claim back for a merit review and an appropriate final decision.

Decision snapshot

• Authority: 20 C.F.R. § 501.3(e).
• Outcome: May 4, 2015 nonmerit decision reversed; claim remanded for merit review.
• Key point: OWCP's delay in ruling on reconsideration deprived the claimant of a timely chance to appeal the earlier merits decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.H., Appellant
)
)
and ) Docket No. 15-1693
) Issued: April 1, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Bellmawr, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
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 August 5, 2015 appellant, through counsel, filed a timely application for review of a May 4, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration.

OWCP accepted that appellant sustained a syncopal episode on December 13, 2012 while in the performance of duty. On February 4, 2014 appellant, through counsel, requested reconsideration and an expansion of her accepted conditions to include cervical radiculopathy. By decision dated July 31, 2014, OWCP denied appellant’s claim. On September 23, 2014 OWCP received appellant’s reconsideration request dated September 18, 2014 and on May 4, 2015 denied the reconsideration request without reviewing the merits of her claim.

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 right to review of the merits of the case by the Board, OWCP should conduct a merit review.1 Appellant had 180 days, or until January 27, 2015, to appeal OWCP’s July 31, 2014 merit

1
See S.P., Docket No. 14-1309 (issued October 21, 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.a (October 2011). decision to the Board.2 OWCP received her reconsideration request within 54 days on September 23, 2014, but did not issue its denial until May 4, 2015, well after her right to appeal the merit decision to the Board had expired. Thus, its delay jeopardized appellant’s right to appeal the merits of her case.

Accordingly, the Board will reverse OWCP’s May 4, 2015 decision and remand the case for a merit review and an appropriate final decision on appellant’s claim for compensation.3

IT IS HEREBY ORDERED THAT the May 4, 2015 decision of the Office of Workers’ Compensation Programs is reversed and the case remanded for further action.

Issued: April 1, 2016
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

2
20 C.F.R. § 501.3(e).
3
See 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