United States Department of Labor

Employees’ Compensation Appeals Board

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B.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Elk Grove, CA, Employer

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Docket No. 20-1512

Issued: August 24, 2021

Appearances: Case Submitted on the Record

Brian M. Voigt, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On August 10, 2020 appellant, through counsel, filed a timely appeal from a March 26, 

2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards docketed the appeal as No. 20-1512.2

On September 25, 2018 appellant, then a 48-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she injured her left foot when a heavy parcel 

fell onto her foot while in the performance of duty. She stopped work that day.

 

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 The Board notes that, following the March 26, 2020 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

In an October 25, 2018 development letter, OWCP informed appellant that, when her claim 

was first received, it appeared to be a minor injury that resulted in minimal or no lost time for work 

and it had now reopened her claim for consideration of the merits. It advised her of the deficiencies 

of her claim and requested additional medical evidence. OWCP afforded appellant 30 days to 

respond.

Appellant submitted medical evidence in support of her claim.

By decision dated November 30, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish a valid medical diagnosis from a qualified 

physician in connection with the accepted September 25, 2018 employment incident. It concluded, 

therefore, that the requirements had not been met to establish an injury as defined by FECA. 

Appellant subsequently submitted additional evidence, including October 25 and

December 3, 2018 status reports from Dr. Ronald. T. Whitmore, a family medicine specialist, 

placing appellant on modified duty from October 25 to November 9, 2018 and releasing her to 

full-duty work beginning December 3, 2018. OWCP also received a September 25, 2019 left foot 

x-ray.

On November 12, 2019 appellant requested reconsideration via an appeal request form.

By letter dated December 12, 2019 OWCP confirmed that it had received appellant’s 

request for reconsideration on November 12, 2019, but noted that the form was unsigned. OWCP 

requested that appellant sign and return to the form. On December 31, 2019 OWCP received 

appellant’s signed appeal request form.

By decision dated March 26, 2020, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.

The Board has duly considered the matter and finds that appellant’s request for 

reconsideration was timely filed. 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.3 One year following OWCP’s November 30, 2018 

merit decision was November 30, 2019. As that fell on a Saturday, appellant had until Monday, 

December 2, 2019 to request reconsideration.4 Because OWCP initially received appellant’s 

reconsideration request on November 12, 2019, the Board finds that it was timely filed.5 The clear 

 

3 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(a) (February 2016).

4 When determining the one-year period for requesting reconsideration, the last day of the period should be included 

unless it is a Saturday, Sunday, or a legal holiday. Federal (FECA) Procedure Manual, id.

5 See L.T., Docket No. 21-0322 (issued June 28, 2021); J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., 

Docket No. 17-0473 (issued June 6, 2017); C.B., Docket No. 13-1732 (issued January 28, 2014). See also Steven E. 

Pratt Docket No. 93-443 (issued February 2, 1994) (the Board found that appellant’s reconsideration request was later 

perfected and therefore timely).
3

evidence of error standard utilized by OWCP in its March 26, 2020 decision is appropriate only 

for untimely reconsideration requests.6 Therefore, the Board will set aside OWCP’s March 26, 

2020 decision and remand the case for an appropriate decision applying the correct standard for 

timely requests for reconsideration.

IT IS HEREBY ORDERED THAT the March 26, 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: August 24, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

6 See 20 C.F.R. § 10.607(b).