P.B. and U.S. Postal Service, Post Office, Scarborough, ME (Board decision, April 30, 2020)

ECAB remand decision. The Board set aside OWCP’s December 18, 2018 denial of reconsideration and ordered a reasoned decision. The underlying injury claim 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).

Plain-English summary

A postal worker sought reconsideration of a denied claim for wrist and thumb injuries after falling from a pallet jack. The Board agreed that his request came after the one year deadline, so the clear evidence of error standard applied. OWCP had not discussed the evidence submitted with the request or explained why it failed that standard. The Board set aside the summary denial and directed OWCP to address the evidence and give detailed reasons in a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. §§ 10.126, 10.607(a), (b).
• Outcome: December 18, 2018 reconsideration denial set aside and remanded.
• Key point: Even an untimely reconsideration request requires a decision that discusses the submitted evidence and explains the result.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.B., Appellant
)
)
and ) Docket No. 19-1396
) Issued: April 30, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Scarborough, ME, Employer
)
__________ )

Appearances: Case Submitted on the Record
Shawn C. Holt, for the Appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 12, 2019 appellant, through his representative, filed a timely appeal from a December 18, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1396.2

On August 31, 2017 appellant, then a 63-year-old mail handler/equipment operator, filed a traumatic injury claim (Form CA-1) alleging that on August 30, 2017 he fractured his left wrist

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 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. and left thumb when he lost his balance and fell from a pallet jack while in the performance of duty.

In an October 30, 2017 decision, OWCP accepted that the August 30, 2017 incident occurred, as alleged; however, it denied his claim, finding that the medical evidence of record was insufficient to establish that his diagnosed left wrist and left thumb fractures were causally related to the accepted August 30, 2017 employment incident.

On November 5, 2018 appellant requested reconsideration. He submitted arguments and forwarded additional evidence, which included operative reports, physical therapy reports, maintenance records, and witness statements.

By decision dated December 18, 2018, OWCP denied appellant’s request for reconsideration of the merits of his claim. It found the request was untimely filed and failed to demonstrate clear evidence of error.

The Board finds that OWCP properly determined that appellant’s November 5, 2018 request for reconsideration was untimely filed. The last merit decision was issued on October 30, 2017 and OWCP received appellant’s request for reconsideration on November 5, 2018. As appellant’s request for reconsideration was not received by OWCP within the one-year time limitation, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the claim. 3

The Board finds, however, that the case is not in posture for decision because OWCP did not make any findings regarding the evidence submitted in support of the reconsideration request. 4 OWCP summarily denied appellant’s request for reconsideration without complying with the review requirements of FECA and its implementing regulations.5 Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation. 6 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a statement of reasons. As well, OWCP ’s procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it.7

3
20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
4
C.R., Docket No. 17-0964 (issued September 9, 2019).
5
Id.; see also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (February 2016).
6
5 U.S.C. § 8124(a).
7
Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1400.5 (February 2013).

2
 The case must therefore be remanded to OWCP for an appropriate decision on appellant’s untimely reconsideration request, which describes the evidence submitted on reconsideration and provides detailed reasons for accepting or rejecting the reconsideration request.8

IT IS HEREBY ORDERED THAT the December 18, 2018 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for action consistent with this order of the Board.

Issued: April 30, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

8
C.R., supra note 4; see also M.L., Docket No. 09-0956 (issued April 15, 2010).

3