S.J. and Department of Veterans Affairs, Veterans Administration Medical Center, Birmingham, AL (Board decision, August 12, 2020)

ECAB remand decision. OWCP's July 24, 2019 reconsideration denial was set aside, and OWCP must review the request under the clear-evidence-of-error standard. The underlying benefits question remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

S.J., a Veterans Affairs food service worker, sought reconsideration after OWCP terminated benefits for an accepted knee and back injury. The Board found her latest request untimely but concluded that OWCP had applied the standard for a timely request rather than the clear-evidence-of-error standard for a late one. It set aside the denial and directed OWCP to review the request under the proper standard. The Board also instructed OWCP to assemble the claim record and consider whether related files should be combined. The order mentions June 21 once as the request date, while its factual discussion and timeliness analysis use June 28, 2019.

Decision snapshot

• Authority: Late reconsideration under 20 C.F.R. § 10.607(b).
• Outcome: July 24, 2019 denial set aside; request remanded for review under the correct standard.
• Key point: OWCP applied the wrong reconsideration standard to an untimely request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.J., Appellant
)
)
and ) Docket No. 19-1864
) Issued: August 12, 2020
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Birmingham, AL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Lauren Shine, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 3, 2019 appellant, through counsel, filed a timely appeal from a July 24, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the Appellate Boards assigned Docket No. 19-1864.

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 timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 7, 2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1864 (issued August 7, 2020). This case has previously been on appeal before the Board.3 The relevant facts are set forth below.

On February 3, 2014 appellant, then a 46-year-old food service worker, filed a traumatic injury claim (Form CA-1) alleging that she injured her right knee and lower back on January 24, 2014 when her left foot got caught on a drawer of her desk as she turned in her chair to get up causing her to fall while in the performance of duty. On April 29, 2014 OWCP accepted the claim for contusion of the right knee and sprain of the back, lumbar region.

In a letter dated January 8, 2015, the employing establishment noted that appellant was to resume regular-duty work as of January 12, 2015, as there was no medical evidence providing work restrictions.

On January 23, 2015 OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits as the weight of the medical evidence established that she no longer had residuals or disability due to the accepted January 24, 2014 employment injury.

By decision dated March 13, 2015, OWCP terminated appellant’s wage-loss compensation and medical benefits, effective that date.

On March 30, 2015 appellant requested a telephonic hearing, which was held before an OWCP hearing representative on November 18, 2015.

By decision dated January 28, 2016, OWCP’s hearing representative affirmed the March 13, 2015 decision.

On February 16, 2017 appellant, through counsel, requested reconsideration.

By decision dated February 27, 2017, OWCP denied appellant’s request for reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.

On August 24, 2017 appellant, through counsel, filed a timely appeal before the Board. By decision dated December 19, 2018, the Board found that OWCP properly denied appellant’s request for reconsideration of the merits of her claim finding that it was untimely filed and failed to demonstrate clear evidence of error.4

On June 28, 2019 appellant, through counsel, requested reconsideration. Counsel argued that appellant filed a timely reconsideration request, noting that a receipt reflected that the request was received on February 2, 2017 and the recorded document was received on February 16, 2017. Counsel noted that the certified mail receipt reflected that a package was delivered. Counsel further argued that the package included medical evidence from Dr. Kathleen Warner, an internist, which was not considered and that this was clear error. Counsel noted that the additional medical evidence challenged the findings of Dr. Todd Smith, Board-certified orthopedic surgeon, and that

3
Docket No. 17-1835 (issued December 19, 2018).
4
Id.

2
OWCP’s failure to consider the medical evidence from Dr. Warner was clear evidence of error in the issuance of the January 28, 2016 decision.

By decision dated July 24, 2019, OWCP denied appellant’s June 21, 2019 request for reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a). It found that her reconsideration request neither raised substantive legal questions nor included new and relevant evidence.

The Board notes that the most recent decision reviewing the merits of appellant’s case was OWCP’s January 28, 2016 decision. Appellant had one calendar year from the date of that decision, until January 27, 2017, to ensure receipt by OWCP of a reconsideration request.5 OWCP received her reconsideration request on June 28, 2019. As the received date was more than one year after the January 28, 2016 OWCP decision, the Board finds that appellant’s request must be considered untimely.

The proper standard of review for an untimely reconsideration request is the clear evidence of error standard.6 In denying appellant’s reconsideration request in its July 24, 2019 nonmerit decision OWCP applied the incorrect standard of review. Therefore, the Board will set aside OWCP’s July 24, 2019 decision and remand the case for proper review under the clear evidence of error standard.7

5
The Board notes that although counsel asserts that OWCP received the reconsideration request on February 2, 2017 that received date would still be considered untimely. 6 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).
7
Due to the appearance that appellant’s reconsideration request and/or supportive documentation was received into an incorrect file number, upon return of the case file OWCP shall properly assemble and reconstruct the case files to ensure that documents submitted in relation to the present file are contained in the proper claim file prior to issuance of a new decision. OWCP shall also consider whether his claim files should be administratively combined.

3
 IT IS HEREBY ORDERED THAT the July 24, 2019 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: August 12, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4