J.K. and U.S. Postal Service, Post Office, Kailua-Kona, HI (Board decision, August 13, 2020)

ECAB remand decision. OWCP's November 14, 2019 reconsideration denial was set aside, and OWCP must issue a reasoned decision on the request. The underlying emotional condition claim 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

J.K., a postal carrier, sought reconsideration of a denied emotional condition claim arising from a dispute over official time to prepare for an employment discrimination meeting. The Board agreed that his request arrived after the one-year reconsideration deadline. It found, however, that OWCP had summarily rejected the request without evaluating whether his arguments and evidence showed clear error. The Board set aside the November 14, 2019 denial and remanded for an appropriate decision. The official order refers once to a November 1, 2019 decision while otherwise identifying and setting aside the November 14 decision.

Decision snapshot

• Authority: Findings and reasons requirements, 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126.
• Outcome: November 14, 2019 reconsideration denial set aside; request remanded for a reasoned decision.
• Key point: OWCP had to address clear error even though the reconsideration request was late.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.K., Appellant
)
)
and ) Docket No. 20-0556
) Issued: August 13, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Kailua-Kona, HI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 January 14, 2020 appellant filed a timely appeal from a November 14, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards docketed the appeal as No. 20-0556.2

On June 7, 2018 appellant, then a 43-year-old city letter carrier technician, filed a traumatic injury claim (Form CA-1) alleging that on June 6, 2018 he experienced stress and anxiety as a result of his supervisor’s unwillingness to allow more than two hours of official time for him to prepare for an Equal Employment Opportunity Commission (EEOC) conference meeting. He

1
Appellant also requested an appeal from an October 25, 2018 merit decision. For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(e). As appellant’s January 14, 2020 notice of appeal is more than 180 days from the October 25, 2018 decision, the Board is without jurisdiction to hear the appeal from this decision. 2 The Board notes that, following the November 14, 2019 decision, OWCP received additional evidence. However, the Board’s Rules of Procedures 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. stopped work on June 6, 2018. After initial development, OWCP converted appellant’s claim to an occupational disease claim.

By decision dated October 25, 2018, OWCP denied appellant’s claim. It accepted his employment duties as a letter carrier and diagnosis of a medical condition, but denied his claim finding that he had not established that he “sustained an emotional condition that arose during the course of employment and within the scope of compensable work factors as defined by FECA.”

OWCP subsequently received additional medical evidence in support of appellant’s claim.

On October 29, 2019 appellant requested reconsideration. In an October 22, 2019 statement, he argued that he was in the performance of duty on June 6, 2018 when his supervisor informed him that he was allowed only two hours of official time to prepare for his EEOC meeting.

Appellant also submitted various notes dated September 27 to October 11, 2019 in which he requested a union steward, witness statements, and additional documentation regarding his EEOC claim.

By decision dated November 14, 2019, OWCP denied appellant’s request for reconsideration of the merits of his claim finding that the request was untimely filed and failed to demonstrate clear evidence of error.

The Board finds that the case is not in posture for decision.

OWCP properly determined that appellant’s October 29, 2019 request for reconsideration was untimely filed. The last merit decision was issued on October 25, 2018 and OWCP received appellant’s reconsideration request on October 29, 2019.3 As his 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.4

The Board further finds that OWCP did not make any findings regarding the evidence submitted in support of the reconsideration request.5 OWCP summarily denied appellant’s request for reconsideration without complying with the review requirements of FECA and its implementing regulations.6 Section 8124(a) of FECA provides that OWCP shall determine and

3
Timeliness is determined by the document receipt date of the request for reconsideration as is indicated by the “received date” in the Integrated Federal Employees’ Compensation System (iFECS). If the request for reconsideration has a document received date greater than one year, the request must be considered untimely. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016). 4 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). 5 See C.D., Order Remanding Case, Docket No. 19-1962 (issued June 29, 2020); see also C.G., Order Remanding Case, Docket No. 20-0051 (issued June 29, 2020). 6 T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607.

2 make a finding of fact and make an award for or against payment of compensation.7 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.8 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.9

In denying appellant’s October 29, 2019 reconsideration request, OWCP failed to analyze the evidence or argument as to whether it was sufficient to demonstrate clear evidence of error. The November 1, 2019 decision simply noted: “we did consider your request under 20 C.F.R.
§ 10.607.” However, OWCP did not address the arguments made by appellant in his October 22, 2019 statement and provided no discussion relative to the new evidence submitted by appellant.10 The Board will therefore set aside OWCP’s November 14, 2019 decision and remand the case for an appropriate decision on appellant’s untimely reconsideration request.11 Accordingly,

7
5 U.S.C. § 8124(a).
8
20 C.F.R. § 10.126.
9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).
10
See R.T., Docket No. 19-0604 (issued September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).
11
5 U.S.C. § 8124(a).

3
 IT IS HEREBY ORDERED THAT the November 14, 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 13, 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