D.P. and Department of Veterans Affairs, VA Connecticut Healthcare System, West Haven, CT (Board decision, January 28, 2021)

ECAB final decision. The Board dismissed D.P.’s appeal because it was filed after the time allowed to challenge OWCP’s April 28, 2020 decision. It did not review that decision’s merits. 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. appealed an OWCP decision dated April 28, 2020, but filed with the Board on December 14, 2020. The Board found that the 180-day period ended on October 25, 2020. It found his difficulty securing a physician during the COVID-19 pandemic insufficient to establish compelling circumstances for the late filing. The Board dismissed the appeal without reviewing the OWCP decision.

Decision snapshot

• Authority: ECAB appeal deadline under 20 C.F.R. § 501.3(e).
• Outcome: Appeal dismissed as untimely.
• Key point: The Board lacked jurisdiction because the appeal arrived more than 180 days after the OWCP decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.P., Appellant
)
)
and ) Docket No. 21-0275
) Issued: January 28, 2021
DEPARTMENT OF VETERANS AFFAIRS, VA,
)
CONNECTICUT HEALTHCARE SYSTEM,
)
West Haven, CT, Employer
)
__________ )

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

ORDER DISMISSING APPEAL

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 14, 2020 appellant filed an appeal from an April 28, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0275.

The Board has duly considered the matter and notes that the Board has jurisdiction to review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1 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.2

The 180th day following the April 28, 2020 decision was October 25, 2020. As appellant did not file an appeal with the Board until December 14, 2020, more than 180 days after the April 28, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0275 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant’s reason to

1
5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).
2
Id. at § 501.3(e). explain the failure to timely file an appeal, i.e., his inability to secure a physician during the COVID-19 pandemic, is insufficient to establish compelling circumstances.3

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”4

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0275 is dismissed.

Issued: January 28, 2021
Washington, DC

Alec J. Koromilas, Chief 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
Appellant submitted additional evidence on appeal. 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. 4 Id. at § 501.6(d).

2