M.H. and U.S. Postal Service, Post Office, San Antonio, TX (Board decision, November 4, 2022)

ECAB final decision dismissing appeal. The Board dismissed the appeal because OWCP issued its May 18, 2022 decision without jurisdiction while an earlier appeal on the same issue was pending. Under 20 C.F.R. § 501.6(d), this order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal mail handler appealed OWCP's May 18, 2022 decision about her injury claim. OWCP issued that decision while an earlier appeal on the same issue was already before the Board. The Board found that OWCP lacked jurisdiction to issue it, making it null and void. Without a valid final adverse OWCP decision to review, the Board dismissed the later appeal.

Decision snapshot

• Authority: 20 C.F.R. §§ 501.2(c)(3), 501.6(d), 501.7(a).
• Outcome: Appeal dismissed because the OWCP decision was void.
• Key point: OWCP could not decide the same issue while the earlier Board appeal remained pending.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.H., Appellant
)
)
and ) Docket No. 22-0880
) Issued: November 4, 2022
U.S. POSTAL SERVICE, POST OFFICE,
)
San Antonio, TX, Employer
)
__________ )

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

ORDER DISMISSING APPEAL

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On May 19, 2022 appellant filed a timely appeal from a May 18, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0880.

This case has previously been before the Board. 1 The facts and circumstances of the case as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth below.

On June 29, 2021 appellant, then a 52-year-old mail handler, filed a traumatic injury claim (Form CA-1) alleging that on May 6, 2021 she sustained injury to her left little finger when she experienced a sharp pain in her right leg when attempting to exit her employing establishment vehicle while in the performance of duty. She explained that she attempted to regain balance and struck her left little finger against a tray. Appellant stopped work on May 6, 2021 and returned to work on May 7, 2021.

By decision dated August 19, 2021, OWCP accepted that the May 6, 2021 employment incident had occurred, as alleged. However, it denied the claim, finding that the medical evidence

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Docket No. 22-0181 (issued May 19, 2022). of record was insufficient to establish a diagnosed medical condition causally related to the accepted employment incident. Thus, OWCP concluded that appellant had not met the requirements to establish an injury as defined by FECA.

On November 15, 2021 appellant appealed the August 19, 2021 decision to the Board. The Clerk of the Appellate Boards assigned that appeal Docket No. 22-0181.

During the pendency of the appeal in Docket No. 22-0181, on May 18, 2022 OWCP issued a merit decision, denying modification of its August 19, 2021 decision.

The Board finds that this appeal must be dismissed as the May 18, 2022 decision, which is the subject of this appeal, is null and void.

The Board’s Rules of Procedure, at section 501.2(c)(3), provides:

“The Board and OWCP may not exercise simultaneous jurisdiction over the same issue in a case on appeal. Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a further decision regarding the issue on appeal until after the Board relinquishes jurisdiction.”2

Similarly, section 10.626 of OWCP’s regulations provides in pertinent part:

“While a case is on appeal to the Board, OWCP has no jurisdiction over the claim with respect to issues which directly relate to the issue or issues on appeal. [It] continues to administer the claim and retains jurisdiction over issues unrelated to the issue or issues on appeal and issues which arise after the appeal as a result of ongoing administration of the case.”3

The Board, having duly considered the matter, notes that, in a May 18, 2022 decision on reconsideration, OWCP denied modification of its August 19, 2021 decision. However, once appellant filed the Board appeal on November 15, 2021 of the same August 19, 2021 decision, OWCP had no jurisdiction to issue its May 18, 2022 decision. 4 Consequently, the May 18, 2022 decision is null and void. 5

Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s jurisdiction is limited to the review of final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act (FECA). As the May 18, 2022 decision of OWCP is null and void, the appeal assigned Docket No. 22-0880 does not contain a final adverse decision over which the

2
20 C.F.R. §§ 501.2(c)(3). See also Order Dismissing Appeal, T.T., Docket No. 20-0864 (issued December 17, 2020); M.S., Docket Nos. 19-1090 & 20-0408 (issued April 20, 2020); J.W., Docket No. 19-1688 (issued March 18, 2020); George Simpson, Docket No. 93-0452 (issued February 18, 1994); Douglas E. Billings, 41 ECAB 880 (1990). 3 20 C.F.R. § 10.626.
4
Douglas E. Billings, supra note 2; see also D.F., Docket No. 19-1257 (issued July 14, 2020).
5
See also G.W., Docket No. 19-0260 (issued July 10, 2020); Cathy B. Millin, 51 ECAB 331 (2000).

2
Board may properly take jurisdiction. Therefore, the Board finds that the appeal docketed as No. 22-0880 is dismissed.6 Accordingly,

IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0880 is dismissed.

Issued: November 4, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

6
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20 C.F.R. § 501.6(d).

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