United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.A., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Seattle, WA, 

Employer 

__________________________________________ 

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Docket No. 16-1392 

Issued: November 7, 2016 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 23, 2016 appellant, through counsel, filed a timely appeal of an April 18, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied 

reconsideration. The Board assigned Docket No. 16-1392. 

OWCP accepted that appellant sustained a cervical strain, cervical and thoracic 

subluxations, and permanent aggravation of preexisting cervical spondylosis without myelopathy 

while in the performance of duty on June 3, 2011. Appellant was receiving wage-loss 

compensation. By decision dated October 30, 2014, OWCP terminated wage-loss compensation 

and medical benefits effective October 30, 2014. 

 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. 
2

On October 26, 2015 appellant, through counsel, requested reconsideration of the 

termination of her benefits. By decision dated November 25, 2015, OWCP denied modification. 

On December 30, 2015 it received appellant’s counsel’s request for reconsideration dated that 

day. OWCP did not issue its nonmerit decision on appellant’s request for reconsideration until 

April 18, 2016, approximately four months after the request was made. Its procedures provide: 

“When a reconsideration decision is delayed beyond 90 days, and the delay 

jeopardizes the claimant’s right to review of the merits of the case by the Board, 

OWCP should conduct a merit review. That is, the basis of the original decision 

and any new evidence should be considered and, if there is no basis to change the 

original decision, an order denying modification (rather than denying the 

application for review) should be prepared. There is no obligation to conduct a 

merit review on insufficient evidence if the maximum 180-day time limit for 

requesting review by the Board will have expired within the 90-day period 

following OWCP’s receipt of the claimant’s reconsideration request.”2

 

The Board, having duly considered the matter, finds that OWCP’s delay of more than 

four months in issuing a decision on appellant’s reconsideration request effectively precluded her 

from appealing OWCP’s most recent merit decision to the Board.3

 Had OWCP acted upon her 

request within 90 days, she would have been able to seek review of the most recent merit 

decision dated November 25, 2015.4 

Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the 

merits of the claim in order to preserve appellant’s appeal rights. 

 

 2

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

3 See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decisions issued on or after November 19, 2008, 

a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e). 

4 See Geoma R. Munn, 50 ECAB 242 (1999); Debra E. Stoler, 43 ECAB 561 (1992) (remanding cases for merit 

review where OWCP delayed issuance of reconsideration decisions). 
3

IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action 

consistent with the above opinion. 

Issued: November 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board