K.A. and U.S. Postal Service, Processing & Distribution Center, Seattle, WA (Board decision, November 7, 2016)

ECAB remand decision. The Board set aside OWCP’s April 18, 2016 refusal to reopen for merit review and remanded for further proceedings; the remanded issue 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal employee sought reconsideration of a termination of benefits. OWCP waited more than four months before denying the request without a merits review, which caused the employee to lose the chance to appeal the recent merits decision to the Board. The Board set aside OWCP’s refusal and directed it to issue a merits decision preserving the employee’s appeal rights.

Decision snapshot

• Authority: FECA reconsideration delay and appeal rights.
• Outcome: April 18, 2016 refusal set aside and remanded for merit review.
• Key point: OWCP’s delay required a merits decision so the employee could seek Board review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.A., Appellant
)
)
and ) Docket No. 16-1392
) Issued: November 7, 2016
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Seattle, WA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Daniel M. Goodkin, Esq., 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

JURISDICTION

On June 23, 2016 appellant, through counsel, filed a timely appeal of an April 18, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration. The Board assigned Docket No. 16-1392.

OWCP accepted that appellant sustained a cervical strain, cervical and thoracic subluxations, and permanent aggravation of preexisting cervical spondylosis without myelopathy while in the performance of duty on June 3, 2011. Appellant was receiving wage-loss compensation. By decision dated October 30, 2014, OWCP terminated wage-loss compensation and medical benefits effective October 30, 2014.

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. On October 26, 2015 appellant, through counsel, requested reconsideration of the termination of her benefits. By decision dated November 25, 2015, OWCP denied modification. On December 30, 2015 it received appellant’s counsel’s request for reconsideration dated that day. OWCP did not issue its nonmerit decision on appellant’s request for reconsideration until April 18, 2016, approximately four months after the request was made. Its procedures provide:

“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. That is, the basis of the original decision and any new evidence should be considered and, if there is no basis to change the original decision, an order denying modification (rather than denying the application for review) should be prepared. There is no obligation to conduct a merit review on insufficient evidence if the maximum 180-day time limit for requesting review by the Board will have expired within the 90-day period following OWCP’s receipt of the claimant’s reconsideration request.”2

The Board, having duly considered the matter, finds that OWCP’s delay of more than four months in issuing a decision on appellant’s reconsideration request effectively precluded her from appealing OWCP’s most recent merit decision to the Board.3 Had OWCP acted upon her request within 90 days, she would have been able to seek review of the most recent merit decision dated November 25, 2015.4

Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the merits of the claim in order to preserve appellant’s appeal rights.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011).
3
See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decisions issued on or after November 19, 2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e). 4 See Geoma R. Munn, 50 ECAB 242 (1999); Debra E. Stoler, 43 ECAB 561 (1992) (remanding cases for merit review where OWCP delayed issuance of reconsideration decisions).

2
 IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with the above opinion.

Issued: November 7, 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