C.R. and U.S. Postal Service, Post Office, Bronx, NY (Board decision, May 2, 2016)

ECAB remand decision. The Board set aside OWCP’s October 28, 2015 refusal to review the claim on its merits and sent the matter back for a merits decision. The underlying claim remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the matter appealed 30 days after issuance. 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

C.R. asked OWCP to reconsider a February 2015 merits decision on her claim. OWCP waited more than seven months before refusing to conduct another merits review. The Board found that the delay kept C.R. from appealing the February decision to the Board within the 180-day period. It set aside OWCP’s refusal and directed OWCP to issue a decision on the merits, leaving the underlying claim for OWCP to decide.

Decision snapshot

• Authority: 20 C.F.R. § 501.3(e); FECA Procedure Manual, Chapter 2.1602.7.a.
• Outcome: October 28, 2015 refusal set aside; case remanded for a merits decision.
• Key point: OWCP’s delayed response to reconsideration deprived C.R. of the chance to appeal the earlier merits decision within 180 days.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.R., Appellant
)
)
and ) Docket No. 16-0250
) Issued: May 2, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Bronx, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Stephen Larkin, 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 November 29, 2015 appellant, through her representative, filed a timely application for review of an October 28, 2015 decision of the Office of Workers’ Compensation Programs (OWCP), which denied her request for reconsideration without conducting a merit review. In its October 28, 2015 decision, OWCP found that appellant’s reconsideration request, received on March 17, 2015, was insufficient to warrant a merit review of the claim.

The Board notes that most recent merit decision in this case is OWCP’s February 5, 2015 decision. On March 17, 2015 OWCP received appellant’s reconsideration request. It did not issue a decision on appellant’s request for reconsideration until October 28, 2015, over seven months after the request was made. 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 August 4, 2015, to appeal OWCP’s February 5, 2015 merit decision to the Board.2 The Board finds that OWCP’s delay of over seven months in issuing a decision on appellant’s reconsideration request effectively precluded

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.a (October 2011).
2
See 20 C.F.R. § 501.3(e). appellant from appealing OWCP’s most recent merit decision on her claim to the Board. Had OWCP acted upon appellant’s request within 90 days, appellant would have been able to seek review of OWCP’s February 5, 2015 merit decision before the Board.3

Accordingly, the Board will set aside OWCP’s October 28, 2015 decision and remand the case for OWCP to issue an appropriate decision on the merits of the claim in order to preserve appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order.

Issued: May 2, 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

3
See Geoma R. Munn, 50 ECAB 242 (1999); Joseph L. Cabral, 44 ECAB 152 (1992); Debra E. Stoler, 43 ECAB 561 (1992); Carlos Tola, 42 ECAB 337 (1991) (remanding cases for merit review where OWCP delayed issuance of reconsideration decisions).

2