C.M. and Department of Veterans Affairs, Captain James A. Lovell Federal Health Center, North Chicago, IL (Board decision, September 21, 2017)

ECAB remand decision. The Board set aside OWCP’s ruling and returned the unresolved claim or request for further action. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

C.M., a VA employee, sought reconsideration of an occupational disease denial more than a year after the decision. OWCP reviewed the request using the standard for timely petitions. The Board found that the request was late and that OWCP had to apply the clear evidence of error standard instead. It set aside the later ruling and remanded.

Decision snapshot

• Authority: 20 C.F.R. §§ 10.607(a)–(b), 10.606(b).
• Outcome: OWCP’s February 23, 2017 reconsideration decision set aside and remanded.
• Key point: The standard for a late reconsideration request differs from the timely request standard.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.M., Appellant
)
)
and ) Docket No. 17-0877
) Issued: September 21, 2017
DEPARTMENT OF VETERANS AFFAIRS,
)
CAPTAIN JAMES A. LOVELL FEDERAL
)
HEALTH CENTER, N. Chicago, IL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 13, 2017 appellant, filed a timely appeal from a February 23, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification of a February 5, 2015 decision denying her occupational disease claim. The Board docketed the appeal as No. 17-0877.

OWCP initially denied appellant’s occupational disease claim in a February 5, 2015 decision. In an undated appeal request form received on May 28, 2015 and postmarked May 18, 2015, appellant requested an oral hearing. In a June 17, 2015 decision, OWCP denied appellant’s request for an oral hearing because it was untimely filed. It also further denied the request as the issues in the case could be adequately addressed by requesting reconsideration and submitting new evidence. On October 13, 2015, appellant appealed to the Board. In a March 15, 2016 decision, the Board affirmed the June 17, 2015 decision of OWCP.1 In an appeal request form dated August 31, 2016 and received on November 28, 2016, appellant requested reconsideration of the February 5, 2015 OWCP merit decision which denied her occupational disease claim. In a decision dated February 23, 2017, OWCP denied modification of the decision dated February 5, 2015.

1
Docket 16-0046 (issued March 15, 2016).
 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.2 In this case, appellant sought review of the February 5, 2015 decision, but her request for reconsideration was not received until November 28, 2016. Thus, her request for reconsideration was received after the one-year time limitation from the date of the decision being appealed.

OWCP will consider an untimely application f o r r e c on s i d e r a t i o n only if the application demonstrates clear evidence of error on the part of OWCP in its most recent decision. The application must establish, on its face, that such decision was erroneous.3

The Board has duly considered the matter and finds that appellant’s request for reconsideration was untimely. Because appellant filed an untimely reconsideration request, the case will be remanded to OWCP for application of the correct standard for reviewing untimely reconsideration requests, the clear evidence of error standard.4 The standard utilized by OWCP in its February 23, 2017 decision is appropriate only for timely reconsideration requests.5 After such further development as OWCP deems necessary, it should issue an appropriate decision.

IT IS HEREBY ORDERED THAT the February 23, 2017 decision is set aside and the case is remanded for further action consistent with this order.

Issued: September 21, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

2
20 C.F.R. § 10.607(a).
3
Id. at § 10.607. See also A.B., Docket No. 15-0521 (issued June 13, 2016).
4
Id. at § 10.607(b).
5
Id. at § 10.606(b).

2