United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, East Orange, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1309 

Issued: October 21, 2014 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

On May 19, 2014 appellant, through her representative, filed a timely application for 

review of the April 11, 2014 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP), which denied reconsideration. She argued that OWCP’s delay in denying 

her request jeopardized her right to appeal the merits of her case to the Board. 

The most recent merit decision in this case is OWCP’s October 11, 2013 decision finding 

that the medical opinion evidence was insufficient to establish continuing residuals from the 

accepted medical conditions.1

 On November 19, 2013 OWCP received appellant’s 

reconsideration request of the same date. 

The Board finds that appellant is entitled to a merit review of her case. When a 

reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the claimant’s 

 1

 On May 17, 2011 a patient stepping off an examination table stumbled and fell into appellant’s left side as she 

sat at her desk. OWCP accepted her claim for aggravation of lumbar disc displacement with myelopathy and 

aggravation of lumbar postlaminectomy syndrome. Effective March 11, 2012, OWCP terminated benefits on the 

grounds that the weight of the medical evidence established that appellant had returned to her preinjury status. 

Thereafter, appellant filed several reconsideration requests seeking to reestablish benefits for the accepted 

aggravations. 
2

right to review of the merits of the case by the Board, OWCP should conduct a merit review.2 

Appellant had 180 days, or until April 9, 2014, to appeal OWCP’s October 11, 2013 merit 

decision to the Board.3

 OWCP received her reconsideration request within 39 days but did not 

issue its denial until April 11, 2014, two days after her appeal right had expired. Thus, OWCP’s 

delay jeopardized, indeed denied, appellant’s right to appeal the merits of her case. 

Accordingly, the Board will reverse OWCP’s April 11, 2014 decision and remand the 

case for a merit review and an appropriate final decision on appellant’s claim for continuing 

benefits.4

IT IS HEREBY ORDERED THAT the April 11, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed and the case remanded for further action. 

Issued: October 21, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 2

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.a, (October 2011). 

3

 20 C.F.R. § 501.3(e). 

4

 E.g., Joseph L. Cabral, 44 ECAB 152 (1992) (remanding the case for a merit decision where OWCP delayed 

more than 10 months in denying reconsideration).