United States Department of Labor

Employees’ Compensation Appeals Board

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M.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, MI, Employer

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Docket No. 18-0627

Issued: February 21, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On January 30, 2018 appellant filed a timely appeal from a January 5, 2018 nonmerit 

decision Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No. 

18-0627.

On September 1, 2015 appellant, then a 44-year-old mail carrier, filed a traumatic injury 

claim alleging that on August 31, 2015 he was attacked with a gun by three 17-year-old boys while 

in the performance of duty. He further alleged that this event caused an emotional condition.

By decision dated November 13, 2015, OWCP found that the evidence of record supported 

that the August 31, 2015 incident occurred as described, and that this incident constituted a 

compensable factor of employment. It denied appellant’s emotional condition claim, however,

finding that the medical component of fact or injury had not been met as there was no medical 

evidence from a psychiatrist or licensed psychologist diagnosing an emotional condition.

On January 19, 2016 appellant requested reconsideration of the November 13, 2015 merit 

decision. OWCP did not issue its nonmerit decision denying appellant’s request for 

reconsideration until January 5, 2018, approximately 24 months after the reconsideration 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, 
2

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.”

1

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

24 months in issuing a decision on denying appellant’s reconsideration request effectively

precluded him from appealing OWCP’s most recent merit decision to the Board.2 Had OWCP 

acted upon his request within 90 days, he would have still been able to seek Board review of the 

November 13, 2015 merit decision.

3

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. 

 

1 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (February 2016). 

The 180-day limit for requesting review by the Board of the November 13, 2015 merit decision expired on 

May 11, 2016. The 90-day period following appellant’s January 19, 2016 request for reconsideration expired on 

April 18, 2016 which was within the 180-day limit for requesting review by the Board.

2 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).

3 See K.A., Docket No. 16-1392 (issued November 7, 2016); 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

ORDER

IT IS HEREBY ORDERED THAT the January 5, 2018 decision of the Office of 

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

consistent with this order of the Board.

Issued: February 21, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board