E.W. and Department of Veterans Affairs, Kansas City VA Medical Center, Kansas City, MO (Board decision, December 8, 2020)

ECAB remand decision. The Board set aside OWCP’s refusal to reconsider E.W.’s claim and directed proper issuance of a new decision. The underlying 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

E.W. told OWCP he had moved, but OWCP mailed its injury denial to his old address. The letter was returned undeliverable, and OWCP later rejected his reconsideration request as late. The Board found that the original decision had been improperly issued because it went to the wrong address. It set aside the later ruling and remanded for proper issuance of a new decision.

Decision snapshot

• Authority: Service of an OWCP decision at the employee’s last known address.
• Outcome: October 9, 2019 reconsideration denial set aside and remanded.
• Key point: A returned decision sent to an outdated address did not start a valid appeal period.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.W., Appellant
)
)
and
)
) Docket No. 20-0357
DEPARTMENT OF VETERANS AFFAIRS, ) Issued: December 8, 2020
KANSAS CITY VA MEDICAL CENTER,
)
Kansas City, MO, Employer
)
__________ ) )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge JANICE B. ASKIN, Judge

On December 3, 2019 appellant, through counsel, filed a timely appeal from an October 9, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-0357.

On April 18, 2017 appellant, then a 54-year-old supply technician, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2016 he sustained torn tendons and muscles of his right rotator cuff, as well as other damage to his right shoulder, due to repetitive lifting and stretching of his right arm above his head and outwardly while in the performance of duty.

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. In a June 5, 2018 development letter, OWCP informed appellant of the deficiencies in his claim, noting that he had not submitted sufficient evidence to establish that he actually experienced the alleged employment incident.2 The letter was mailed to the address noted on the Form CA-1.

An August 2, 2018 telephone memorandum (Form CA-110) indicates that appellant notified OWCP that he had moved and provided a new mailing address. He was advised that the June 11, 2018 development letter would be reissued using the new address. In a letter dated August 2, 2018, OWCP requested that appellant submit a written request to change his address. It further issued a new development letter of even date to his updated mailing address.

By decision dated September 5, 2018, OWCP denied appellant’s traumatic injury claim, finding that he had not established the factual component of his claim. The decision was mailed to the address previously of record and subsequently returned to OWCP as undeliverable and unable to forward on September 24, 2018. Despite receiving the September 5, 2018 as undeliverable, there is no indication that OWCP attempted to reissue the decision to the correct mailing address.

On October 3, 2019 appellant requested reconsideration of the September 5, 2018 decision.
He asserted that he had not received the decision until December 2018 as OWCP mailed it to his old address. Appellant again requested that his mailing address be updated and provided the new address.

By decision dated October 9, 2019, OWCP denied appellant’s request for reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.

OWCP regulations provide that a copy of a decision shall be mailed to the employee’s last known address.3 In the absence of evidence to the contrary, it is presumed that a notice mailed in the ordinary course of business was received in due course by the intended recipient.4 This presumption is commonly referred to as the “mailbox rule.”5 It arises when the record reflects that the notice was properly addressed and duly mailed.6 However, as a rebuttable presumption, receipt will not be assumed when there is evidence of nondelivery.7 Also, it is axiomatic that the presumption of receipt does not apply where a notice is sent to an incorrect address.8

2
On June 11, 2018 OWCP’s June 5, 2018 development letter was returned as undeliverable and unable to forward.
3
D.C., Docket No. 13-1503 (issued December 17, 2013); J.R., Docket No. 13-0313 (issued August 15, 2013); Newton D. Lashmett, 45 ECAB 181 (1993) (mailbox rule). 4 G.A., Docket No. 18-0266 (issued February 25, 2019); Kenneth E. Harris, 54 ECAB 502, 505 (2003).
5
See J.F., Docket No. 19-1893 (issued April 17, 2020); D.R., Docket No. 19-1899 (issued April 15, 2020);
Kenneth E. Harris, id.
6
Id.
7
M.C., Docket No. 12-1778 (issued April 12, 2013); see C.O., Docket No. 10-1796 (issued March 23, 2011).
8
M.C., id.

2
 OWCP’s September 5, 2018 decision was sent to an incorrect address, and returned to OWCP as undeliverable and unable to forward. Thus, appellant could not have timely requested an appeal from an OWCP decision that he did not receive.9

As OWCP mailed appellant’s decision to an incorrect address, the Board finds that OWCP improperly issued its September 5, 2018 decision.10 For this reason, the case will be remanded to OWCP for proper issuance of a de novo decision.

IT IS HEREBY ORDERED THAT the October 9, 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: December 8, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9
K.N., Docket No 16-1412 (issued December 20, 2016); E.C., Docket No. 11-1174 (issued February 27, 2012).
10
See D.C., supra note 3; Tammy J. Kenow, 44 ECAB 619 (1993).

3