P.A. and Department of the Army, Civilian Personnel Advisory Center, Fort Drum, NY (Board decision, December 22, 2016)

ECAB remand decision. The Board set aside OWCP’s June 15, 2016 nonmerit decision and remanded for review under the timely reconsideration standard. The underlying knee claim remains unresolved. 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

An Army employee requested reconsideration of an occupational knee claim denial exactly one year after OWCP’s merit decision. OWCP overlooked the request’s actual receipt date and treated it as late. The Board found the request timely and required OWCP to apply the standard for timely reconsideration.

Decision snapshot

• Authority: FECA reconsideration deadline.
• Outcome: June 15, 2016 denial set aside; timely request to be reviewed.
• Key point: A request received on the one year anniversary met the filing deadline.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.A., Appellant
)
)
and ) Docket No. 16-1547
) Issued: December 22, 2016
DEPARTMENT OF THE ARMY, CIVILIAN
)
PERSONNEL ADVISORY CENTER,
)
Fort Drum, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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

On July 27, 2016 appellant, through counsel, filed a timely appeal from a June 15, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which found that her request for reconsideration was untimely and did not present clear evidence of error. The appeal was docketed as No. 16-1547.

The Board has duly considered the matter and finds that the case is not in posture for decision. By decision dated January 21, 2015, OWCP denied appellant’s occupational disease claim for bilateral knee conditions, finding that the claim was not timely filed under 5 U.S.C.
§ 8122. On January 21, 2016 appellant requested reconsideration. She submitted additional evidence. By decision dated June 15, 2016, OWCP denied her request for reconsideration, finding that it was not timely filed and failed to present clear evidence of error. In its decision, it referred only to documents received on January 26, 2016, but did not mention appellant’s reconsideration request received on January 21, 2016.

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. The Board finds that appellant’s 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 decision for which review is sought.2 In this case, the last merit decision was dated January 21, 2015 and appellant’s request for reconsideration was received by OWCP on January 21, 2016. Thus, her request was timely filed.

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 June 15, 2016 decision is appropriate only for untimely reconsideration requests. The Board will set aside OWCP’s June 15, 2016 decision and remand the case for an appropriate final decision on appellant’s timely request for reconsideration.

IT IS HEREBY ORDERED THAT the June 15, 2016 decision is set aside and remanded for further action consistent with this order of the Board.

Issued: December 22, 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. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
3
Id. at § 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. Id. at § 10.607(b).

2