B.M. and Department of the Treasury, Internal Revenue Service (Board decision, November 29, 2023)

ECAB final decision dismissing appeal. The Board dismissed this appeal because OWCP issued the challenged decision while the same issue was already before the Board in another appeal. 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

An IRS employee appealed OWCP's denial of a recurrence of disability claim to the Board in January 2022. While that appeal was pending, OWCP issued another decision on the same issue in June 2022. The Board held that OWCP lacked jurisdiction to issue the later decision, making it null and void. With no valid OWCP decision to review in this second appeal, the Board dismissed it. This order did not decide the pending first appeal or the underlying benefits claim.

Decision snapshot

• Authority: 20 C.F.R. §§ 10.626, 501.2(c)(3), 501.3(a).
• Outcome: Second appeal dismissed because the appealed OWCP decision was null and void.
• Key point: OWCP cannot decide the same issue while an appeal of that issue is pending before the Board.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.M., Appellant
)
)
and ) Docket No. 22-1014
)
Issued: November 29, 2023
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Fresno, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER DISMISSING APPEAL

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

On June 21, 2022 appellant, through counsel, filed a timely appeal from a June 8, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-1014.

On October 9, 2018 OWCP accepted appellant’s traumatic injury claim (Form CA-1) for right trigger thumb, left shoulder bicipital tendinitis, and right forearm calcific tendinitis. On October 29, 2019 it expanded the acceptance of the claim to include unspecified rotator cuff tear or rupture of right shoulder, not specified as traumatic.

Appellant filed claims for compensation (Form CA-7) for disability from work commencing February 25, 2021. OWCP adjudicated appellant’s Form CA-7 claims for compensation as a claim for a recurrence of disability.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. By decision dated June 11, 2021, OWCP denied appellant’s recurrence claim, finding that the medical evidence of record was insufficient to establish causal relationship between the claimed disability and the accepted employment injury.

On June 22, 2021 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on October 6, 2021.

By decision dated December 16, 2021, OWCP’s hearing representative affirmed OWCP’s June 11, 2021 decision.

On January 25, 2022 appellant requested reconsideration of the December 16, 2021 decision.

On January 26, 2022 appellant, through counsel, appealed the December 16, 2021 decision to the Board. The Clerk of the Appellate Boards assigned that appeal Docket No. 22-0410.

During the pendency of the appeal in Docket No. 22-0410, on May 11, 2022 appellant requested reconsideration of the December 16, 2021 decision. On June 8, 2022 OWCP issued a merit decision, denying modification of its December 16, 2021 decision.

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 [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 on June 8, 2022 OWCP denied modification of its December 16, 2021 decision. However, once appellant, through counsel, filed the Board appeal on January 26, 2022 of OWCP’s December 16, 2021 merit decision, OWCP had

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.

2 no jurisdiction to issue its June 8, 2022 decision.4 Consequently, the June 8, 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 June 8, 2022 OWCP decision is null and void, there is no final adverse decision over which the Board may properly take jurisdiction. Therefore, the Board finds that the appeal docketed as No. 22-1014 is dismissed. Accordingly,

IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-1014 is dismissed.

Issued: November 29, 2023
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4
Douglas E. Billings, supra note 2; see also D.F., Docket No. 19-1257 (issued July 14, 2020).
5
Id. See also G.W., Docket No. 19-0260 (issued July 10, 2020); Cathy B. Millin, 51 ECAB 331 (2000).

3