A.M. and U.S. Postal Service, Post Office, New Orleans, LA (Board decision, December 20, 2016)

ECAB remand decision. The Board set aside OWCP’s April 11, 2016 denial and remanded for review under the timely reconsideration standard. The recurrence claim remains unresolved. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A Postal Service worker sought reconsideration exactly one year after the latest OWCP merit decision. OWCP treated the request as late and applied a clear evidence of error standard. The Board found it timely and required OWCP to decide it under the proper standard.

Decision snapshot

• Authority: FECA reconsideration deadline.
• Outcome: April 11, 2016 decision set aside; timely request to be reviewed.
• Key point: Receipt on the one year anniversary satisfied the deadline.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.M., Appellant
)
)
and ) Docket No. 16-1250
) Issued: December 20, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
New Orleans, LA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Lenin Perez, for the appellant1
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 May 25, 2016 appellant, through her representative, filed a timely appeal from an April 11, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which found that her request for reconsideration was untimely filed and failed to demonstrate clear evidence of error. The appeal was docketed as No. 16-1250.

The Board has duly considered the matter and finds that the case is not in posture for a decision. By decision dated May 21, 2014, OWCP denied appellant’s claim for a recurrence of disability commencing May 9, 2001. By decision dated March 2, 2015, an OWCP hearing representative affirmed OWCP’s May 21, 2014 decision.2

On March 2, 2016 appellant’s representative requested reconsideration and submitted additional evidence. By decision dated April 11, 2016, OWCP denied reconsideration because 1 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 Appellant subsequently requested reconsideration on July 15, 2015, which OWCP denied without merit review by decision dated July 27, 2015. She again requested reconsideration on November 7, 2015, which OWCP also denied without merit review in a November 16, 2015 decision. appellant’s request was untimely filed and failed to demonstrate clear evidence of error. It found that her March 2, 2016 letter and the additional evidence submitted were insufficient to raise a substantial question regarding the correctness of OWCP’s March 2, 2015 decision.

The Board however finds that appellant’s March 2, 2016 request for reconsideration was timely filed. 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’s decision for which review is sought.3 In this case, the last merit decision was dated March 2, 2015 and appellant’s request for reconsideration was received by OWCP on March 2, 2016. Thus, her request was timely received by OWCP.

Because appellant’s reconsideration request was timely filed, OWCP should have reviewed her request under the standard for timely reconsideration requests,4 as opposed to the standard for untimely reconsideration requests.5 The clear evidence of error standard utilized by OWCP in its April 11, 2016 decision is appropriate only for untimely reconsideration requests. The Board will therefore set aside OWCP’s April 11, 2016 decision and remand the case for an appropriate final decision on appellant’s timely request for reconsideration.

IT IS HEREBY ORDERED THAT the April 11, 2016 decision is set aside and remanded for further action consistent with this order of the Board.

Issued: December 20, 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
20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
4
Id. at § 10.606(b)(3).
5
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