D.P. and Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Brooklyn, NY (Board decision, December 17, 2020)

ECAB remand decision. The Board set aside OWCP’s denial of reconsideration and directed it to apply the standard for a timely request. The underlying right-thumb 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

D.P. sought reconsideration of OWCP’s February 19, 2019 denial of his right-thumb injury claim. OWCP received his request on November 13, 2019, within the one-year period. It nevertheless rejected the request under the clear-evidence-of-error standard for late filings. The Board set that ruling aside and remanded for a decision under the standard for timely reconsideration requests.

Decision snapshot

• Authority: Timely reconsideration under 20 C.F.R. § 10.607(a).
• Outcome: March 6, 2020 nonmerit denial set aside and remanded.
• Key point: A request received within one year cannot be judged by the late-request standard.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.P., Appellant
)
)
and ) Docket No. 20-0928
) Issued: December 17, 2020
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF PRISONS, METROPOLITAN
)
DETENTION CENTER, Brooklyn, NY,
)
Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 16, 2020 appellant filed a timely appeal from a March 6, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 20-0928.

On January 16, 2019 appellant, then a 34-year-old lieutenant, filed a traumatic injury claim (Form CA-1) alleging that on January 15, 2019, he injured his right thumb when he restrained an inmate while in the performance of duty. He stopped work on the date of injury.

By decision dated February 19, 2019, OWCP denied appellant’s claim. It accepted that the January 15, 2019 employment incident occurred as alleged, but found that he had not established a diagnosed medical condition causally related to the accepted employment incident, and thus the requirements had not been met for establishing an injury as defined by FECA. On November 13, 2019 appellant requested reconsideration and submitted medical evidence including a copy of his Department of Veterans Affairs medical history.1

On March 2, 2020 appellant again requested reconsideration and submitted additional evidence. He noted that he had previously submitted a request for reconsideration, but OWCP had not processed it.

By decision dated March 6, 2020, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

The Board has duly considered the matter and finds that appellant’s November 13, 2019 request constituted a timely request for reconsideration. Section 10.607(a) of OWCP’s implementing regulations provides that a request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.2 When determining the one-year period for requesting reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a legal holiday.3 One year following OWCP’s February 19, 2019 merit decision was February 19, 2020. Because OWCP received appellant’s request on November 13, 2019, the Board finds that it was timely filed. The clear evidence of error standard utilized by OWCP in its March 6, 2020 decision is appropriate only for untimely reconsideration requests.4 Therefore, the Board will set aside OWCP’s March 6, 2020 decision and remand the case for an appropriate decision applying the correct standard for timely requests for reconsideration.

1
The record indicates that the employing establishment’s compensation specialist forwarded the request for reconsideration to OWCP on appellant’s behalf. The fax cover sheet noted that medical documentation was attached and that “[a]t this time [appellant’s] case has been denied and he wishes to get it approved. Please process accordingly. Special note: The aforementioned request is time sensitive.” 2 20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 3 Federal (FECA) Procedure Manual, id.
4
See 20 C.F.R. § 10.607(b).

2
 IT IS HEREBY ORDERED THAT the March 6, 2020 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 17, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3