United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.H., Appellant

and

U.S. POSTAL SERVICE, MCDONOUGH POST 

OFFICE, McDonough, GA, Employer

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Docket No. 20-1105

Issued: December 31, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On May 4, 2020 appellant, through counsel, filed a timely appeal from a March 31, 2020 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as Docket No. 20-1105.

On March 29, 2016 appellant, then a 36-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on March 22, 2016 she sustained neck, back, shoulder, 

wrist, and eye injuries when her employing establishment vehicle was struck by a garbage truck

while in the performance of duty.

By decision dated May 16, 2016, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence of record was insufficient to establish that appellant sustained an injury in the 

performance of duty, as alleged. 

 

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 June 17, 2016 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. By decision dated July 26, 2016, an OWCP hearing 

representative denied appellant’s oral hearing request, finding that the request was untimely and 

that the issue in this case could equally well be addressed by a request for reconsideration before 

OWCP along with the submission of new evidence. 

On May 16, 2017 appellant, through then-counsel, requested reconsideration. By decision 

dated August 9, 2017, OWCP denied modification of its July 26, 2016 decision. 

On February 6, 2018 appellant, through then-counsel, requested reconsideration.

By decision dated August 17, 2018, OWCP accepted appellant’s claim for a right eye injury 

of conjunctiva and corneal abrasion, a left shoulder joint sprain, and a left wrist sprain. However, 

it denied appellant’s claim for additional conditions, finding that the evidence of record was 

insufficient to establish causal relationship between the additional diagnosed conditions and the 

accepted March 22, 2016 employment incident.

On May 28, 2019 appellant filed a claim for compensation (Form CA-7) for disability from 

work commencing May 10, 2019 due to the accepted conditions. On the reverse side of the claim 

form, the employing establishment noted that appellant returned to work on April 16, 2016 and 

stopped work again on May 10, 2016. The employing establishment indicated that appellant did 

not return to work after May 10, 2016 and voluntarily resigned on May 9, 2018. An attached 

notice of personnel action (Form SF-50) dated May 9, 2018 documented that appellant voluntarily 

resigned on that day.

In a development letter dated June 5, 2019, OWCP informed appellant that additional 

evidence was needed in support of her claim for wage-loss compensation. It advised her of the 

type of factual and medical evidence necessary to establish her claim and afforded her 30 days to 

submit the necessary evidence.

By decision dated July 9, 2019, OWCP denied appellant’s claim for wage-loss

compensation for disability from work commencing May 10, 2019, finding that the evidence of 

record was insufficient to establish causal relationship between the claimed disability and the 

accepted employment injury.

On March 10, 2020 appellant, through counsel requested reconsideration of OWCP’s 

July 9, 2019 decision. Further evidence was submitted.

By decision dated March 31, 2020, OWCP denied appellant’s reconsideration request. It

noted that “[t]his refers to your letter requesting reconsideration of our decision dated 

August 9, 2017. Your letter was received February 6, 2018. According to the regulations in effect 

on the date the decision was issued, we will not review a decision unless the request is received 

within one year of that decision. We did consider your request under 20 C.F.R. § 10.607(b) to 

determine whether you presented clear evidence that the Office’s last merit decision was 

incorrect.”

The Board finds that this case is not in posture for decision. The preliminarily notes that 

OWCP incorrectly reviewed appellant’s prior request for reconsideration dated February 6, 2018. 
3

The correct reconsideration request that was subject to proper review was received on 

March 10, 2020.

The Board has duly considered the matter and finds that appellant’s March 10, 2020 request 

constituted a timely request for reconsideration of OWCP’s July 9, 2019 merit decision. Section 

10.607(a) of OWCP’s implementing regulations provides that a request for reconsideration must 

be received by OWCP within one year of the date of the decision for which review is sought.2 

Because OWCP received appellant’s reconsideration request on March 10, 2020, within one year 

of OWCP’s July 9, 2019 merit decision, the Board finds that it was timely filed. The clear evidence 

of error standard utilized by OWCP in its March 31, 2020 decision is appropriate only for untimely 

reconsideration requests.3 Therefore, the Board will set aside OWCP’s March 31, 2020 decision 

and remand the case for an appropriate decision applying the correct standard for timely requests 

for reconsideration. Following this and other such further development as OWCP deems 

necessary, it shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the March 31, 2020 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: December 31, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

2 20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (February 2016).

3 See id. at § 10.607(b).