T.G. and U.S. Postal Service, Morgan Processing & Distribution Center, New York, NY (Board decision, November 7, 2023)

ECAB remand decision. The Board set aside OWCP's June 9, 2023 denial of T.G.'s reconsideration request because OWCP left its explanation blank and did not address the submitted evidence. It remanded for findings of fact, reasons, and a new decision on the request. The Board did not decide the underlying injury claim. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

T.G., a postal mail handler, sought to reopen a denied claim for injuries reported after a fall at work. OWCP rejected his later reconsideration request as untimely and said it did not show clear evidence of error, but its decision left the explanation for that finding blank. The Board held that OWCP had not explained its reasoning or addressed the new medical report. It set aside the denial and directed OWCP to issue a reasoned decision on the reconsideration request.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. §§ 10.126, 10.607.
• Outcome: Nonmerit reconsideration denial set aside and remanded for a reasoned decision.
• Key point: OWCP must explain why a reconsideration request fails, including how it treated the supporting evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.G., Appellant
)
)
and ) Docket No. 23-0964
)
Issued: November 7, 2023
U.S. POSTAL SERVICE, MORGAN
)
PROCESSING & DISTRIBUTION CENTER, )
New York, NY, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

On July 5, 2023 appellant filed a timely appeal from a June 9, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0964.

On March 4, 2020 appellant, a 57-year-old mail handler, filed a traumatic injury claim (Form CA-1) alleging that on July 26, 2017 he sustained left shoulder, knee, hip, and face injuries when he tripped and fell on a plastic banding strip on the floor of an elevator in the performance of duty. He did not stop work.

By decision dated April 6, 2020, OWCP accepted that appellant had established the occurrence of the July 26, 2018 employment incident, as alleged. However, it denied his claim, finding that he had not established the medical component of fact of injury, because he failed to submit medical evidence containing a diagnosis in connection with the July 26, 2017 employment incident. OWCP concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

On June 30, 2022 appellant requested an oral hearing before an OWCP hearing representative. By decision dated July 29, 2022, OWCP denied his hearing request as untimely filed. Following the July 29, 2022 decision, appellant submitted a February 28, 2022 report from Dr. David Shein, a Board-certified orthopedic surgeon. Dr. Shein noted that appellant had bilateral shoulder, left knee, and left hip conditions, which emanated from employment injuries. He concluded that appellant remained 100 percent disabled.

On May 18, 2023 appellant requested reconsideration.

By decision dated June 9, 2023, OWCP denied appellant’s May 18, 2023 request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. It found that he “did not present clear evidence of error.” OWCP related in a sentence fragment that “The basis for this decision is….” The explanation for the finding, however, was left blank.

The Board has duly considered the matter and finds that this case is not in posture for decision.

OWCP summarily denied appellant’s request for reconsideration without complying with the review requirements of FECA and its implementing regulations. 1 Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation. 2 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a statement of reasons.3 As well, OWCP’s procedures provide that the reasoning behind its evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it.4

In denying appellant’s reconsideration request, OWCP failed to analyze whether it was sufficient to demonstrate clear evidence of error. The June 9, 2023 decision simply noted in a sentence fragment “The basis for this decision is….” The explanation for the finding, however, was left blank. OWCP therefore did not address the evidence submitted in support of appellant’s reconsideration request.5

The Board finds that OWCP failed to properly explain the findings with respect to the issue presented so that appellant could understand the basis for the decision, i.e., whether he had demonstrated clear evidence that OWCP’s last merit decision was incorrect.6 The Board will,

1
Order Remanding Case, C.W., Docket No. 23-0142 (issued June 13, 2023); D.R., Docket No. 21-1229 (issued July 6, 2022); M.D., Docket No. 20-0868 (issued April 28, 2021); T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607. 2 5 U.S.C. § 8124(a).
3
20 C.F.R. § 10.126.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims Disallowances, Chapter 2.1400.5 (February 2013).
5
C.W., supra note 1; M.D., Docket No. 20-0868 (issued April 28, 2021); see also Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016). 6 OWCP’s regulations and procedures provide that OWCP will reopen a claimant ’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates clear evidence of error on the part of OWCP. Supra note 4 at Chapter 2.1602.5a (September 2020).

2 therefore, set aside OWCP’s June 9, 2023 decision and remand the case for findings of fact and a statement of reasons, to be followed by an appropriate decision regarding appellant’s reconsideration request. 7 Accordingly,

IT IS HEREBY ORDERED THAT the June 9, 2023 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: November 7, 2023
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

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

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

7
See C.W., supra note 1; Order Remanding Case, D.R., Docket No. 21-1229 (issued July 6, 2022); T.P., Docket No. 19-1533 (issued April 30, 2020); see also id. at § 10.607.

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