S.M. and Department of Veterans Affairs (Board decision, August 15, 2024)

ECAB final decision. The Board dismissed the appeal because OWCP ruled while the same issue was pending before the Board. This dismissal ends the Board appeal; it does not decide the underlying compensation claim. Under 20 C.F.R. § 501.6(d), Board decisions and orders become final after 30 days. A party may petition the Board for reconsideration within 30 days unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A VA employee appealed an OWCP reconsideration ruling issued on July 27, 2022. The Board found it was already considering the same issue in a separate appeal when OWCP issued that ruling. The OWCP decision was therefore null and void, leaving no final adverse decision for this appeal. The Board dismissed the new docket without deciding the underlying claim.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Appeal dismissed; intervening OWCP decision held null and void.
• Key point: OWCP could not decide the same issue while it was before the Board.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.M., Appellant
)
)
and ) Docket No. 22-1151
)
Issued: August 15, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
ROCKY MOUNTAIN VA MEDICAL CENTER, )
Aurora, CO, Employer
)
__________ )

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

ORDER DISMISSING APPEAL

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On July 29, 2022 appellant filed a timely appeal from a July 27, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards assigned the appeal Docket No. 22-1151.

The Board, having duly considered this matter, notes that the Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s) in a case on appeal. 2 By the July 27, 2022 decision, OWCP found that OWCP properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. §8128(a). However, on July 15, 2022, appellant had filed an appeal with the Board from a September 21, 2021 OWCP decision, regarding the same underlying issue, to which the Clerk of the Appellate Boards assigned Docket No. 22 -1095. As the issue of whether appellant had sustained an injury in the performance of duty was pending

1
To the extent that appellant’s July 29, 2022 appeal may be construed as a petition for reconsideration of the Board’s July 29, 2022 final order in Docket No. 22-1095, the Board will consider the petition separately under Docket No. 22-1095. 2 20 C.F.R. §§ 10.501.2(c)(3), 10.626; Douglas E. Billings, 41 ECAB 880 (1990). See also Order Dismissing Appeal, M.B., Docket No. 23-0750 (issued July 20, 2023); Order Dismissing Appeal, A.J., Docket No. 22-1336 (issued May 15, 2023); Order Dismissing Appeal, M.H., Docket No. 22-0880 (issued November 4, 2022). before the Board in Docket No. 22-1095 when OWCP issued its July 27, 2022 decision, OWCP’s July 27, 2022 decision is null and void.3

As OWCP’s July 27, 2022 decision is null and void, there is no final adverse decision issued by OWCP over which the Board may properly exercise jurisdiction. The Board, therefore, concludes that the appeal docketed as No. 22-1151 must be dismissed. Accordingly,

IT IS HEREBY ORDERED THAT Docket No. 22-1151 is dismissed.

Issued: August 15, 2024
Washington, DC

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

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

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

3
Id.; see also G.W., Docket No. 19-0260 (issued July 10, 2020); Cathy B. Millin, 51 ECAB 331 (2000).

2