W.D. and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, NH (Board decision, November 20, 2020)

ECAB remand decision. The Board set aside OWCP’s denial of W.D.’s reconsideration request and remanded for a reasoned decision. 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

W.D. sought reconsideration of a claim involving additional conditions after an electrical shock injury. The Board agreed his request arrived after the one-year deadline. OWCP nonetheless had to explain whether the new medical evidence showed clear error, and its summary denial did not do so. The Board remanded for an appropriate decision.

Decision snapshot

• Authority: Reasoned review of evidence with an untimely reconsideration request.
• Outcome: September 10, 2019 nonmerit decision set aside and remanded.
• Key point: OWCP had to discuss the submitted medical evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.D., Appellant
)
)
and ) Docket No. 20-0859
) Issued: November 20, 2020
DEPARTMENT OF THE NAVY,
)
PORTSMOUTH NAVAL SHIPYARD,
)
Portsmouth, NH, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

On March 9, 2020 appellant filed a timely appeal from a September 10, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards docketed the appeal as No. 20-0859.2

On February 20, 2018 appellant, then a 53-year-old utility pipefitter, filed a traumatic injury claim (Form CA-1) alleging that on January 11, 2018 he experienced an electrical shock in his left hand and arm when working inside a manhole while in the performance of duty. He noted that he sustained elevated blood pressure, blurry vision, fresh wounds to the inner left bicep, right 1 Appellant also requested an appeal from a July 24, 2018 merit decision of OWCP. 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 March 9, 2020 appeal was filed more than 180 days from the July 24, 2018 decision, the Board is without jurisdiction to hear the appeal from this decision. 2 The Board notes that, following the September 10, 2019 decision, OWCP received additional evidence. 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. foot pain, and tinnitus. Appellant did not stop work. On April 10, 2018 OWCP accepted appellant’s claim for electrical shock and abrasions of the left upper arm from electrical shock. On May 17, 2018 it expanded the acceptance of appellant’s claim to include the additional conditions of dislocation of the second metatarsophalangeal joint of the right great toe and bilateral, traumatic acoustic tinnitus.

By decision dated May 18, 2018, OWCP denied appellant’s claim for additional conditions involving his eyes, ears, blood pressure, spasms to body parts, right foot/toes, and teeth. It found that the medical evidence of record was insufficient to establish a causal relationship between appellant’s diagnosed conditions and the accepted January 11, 2018 employment injury.

On May 24, 2018 appellant requested reconsideration and submitted additional evidence in support of his claim.

By decision dated July 24, 2018, OWCP denied modification of the May 18, 2018 decision.

OWCP subsequently received additional medical evidence in support of appellant’s claim including medical records from treating physicians noting appellant’s treatment history and ability to work.

On August 29, 2019 appellant requested reconsideration. He asserted that the medical evidence of record was sufficient to establish his claim for his dental and eye conditions.

By decision dated September 10, 2019, OWCP denied appellant’s reconsideration request finding that it was untimely filed and failed to demonstrate clear evidence of error.

The Board finds that this case is not in posture for decision because OWCP failed to make findings regarding the evidence submitted in support of appellant’s August 29, 2019 reconsideration request.

OWCP properly determined that appellant’s August 29, 2019 request for reconsideration was untimely filed. The last merit decision was issued on July 24, 2018 and OWCP received appellant’s reconsideration request on August 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 Board finds that the request for reconsideration was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the claim.4

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).

2
 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 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 August 29, 2019 reconsideration request, OWCP failed to analyze the medical evidence as to whether it was sufficient to demonstrate clear evidence of error. The September 10, 2019 decision simply noted: “[w]e did consider your request under 20 C.F.R.
§ 10.607(b).” However, OWCP provided no discussion relative to the new medical evidence submitted by appellant.10 The Board will therefore set aside OWCP’s September 10, 2019 decision and remand the case 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.11 Accordingly,

5
See J.K., Order Remanding Case, Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13, 2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020). 6 See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).
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
J.K., supra note 5.
11
5 U.S.C. § 8124(a).

3
 IT IS HEREBY ORDERED THAT the September 10, 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: November 20, 2020
Washington, DC

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

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

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

4