United States Department of Labor

Employees’ Compensation Appeals Board

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J.H., Appellant

and

DEPARTMENT OF THE ARMY, CIVILIAN 

PERSONNEL ADVISORY OFFICE, 

Fort Stewart, GA, Employer

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Docket No. 18-1367

Issued: July 17, 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

JANICE B. ASKIN, Judge

On July 2, 2018 appellant filed an appeal from a June 11, 2018 nonmerit decision of the 

Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards

docketed the appeal as No. 18-1367.

On April 25, 2018 appellant, then a 39-year-old certified nursing assistant, filed an 

occupational disease claim (Form CA-2) alleging that she sustained a right foot injury when “she 

was not able to put pressure on it and stand without being in a lot of pain” due to her performance 

of employment duties. She first became aware of her condition and of its relationship to her 

employment on May 5, 2014. On the reverse side of the form, appellant’s supervisor indicated 

that she was first notified of the condition on May 5, 2014. 

By decision dated June 5, 2018, OWCP denied the occupational disease claim, finding that 

it was untimely filed. It advised appellant that the evidence submitted did not establish that she 

filed her April 25, 2018 claim within three years of the May 5, 2014 date of injury, or that her 

immediate supervisor had actual knowledge within 30 days of the date of injury.1

 

1 OWCP noted that appellant had timely filed a claim for the May 5, 2014 injury under OWCP File No. xxxxxx395. 
2

On June 7, 2018 appellant requested reconsideration of OWCP’s decision. She reported 

that while she first became aware of her condition on May 5, 2014, she did not realize that it was 

related to factors of her federal employment until May 15, 2016. 

By decision dated June 11, 2018, OWCP denied appellant’s June 7, 2018 reconsideration 

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

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

2

OWCP, by decision dated June 11, 2018, improperly denied appellant’s request for 

reconsideration. The last merit decision of record was OWCP’s June 5, 2018 decision. By letter 

dated June 7, 2018, appellant submitted a timely reconsideration request, which was within one 

year of the June 5, 2018 decision. OWCP should have applied the standard reserved for timely 

reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3). However, in its June 11, 2018 

decision, OWCP reviewed the evidence submitted in support of appellant’s reconsideration request 

under the more stringent clear evidence of error standard for untimely requests for reconsideration

found in 20 C.F.R. § 10.607(a). Since it erroneously reviewed the evidence submitted in support 

of appellant’s reconsideration request under the clear evidence of error standard, the Board will 

remand the case for review of this evidence under the proper standard of review for a timely 

reconsideration request.3

Thus, the Board finds that the case is remanded for proper adjudication and application of 

the appropriate standard of review, to be followed by an appropriate decision.4

 

2 See K.K., Docket No. 16-1187 (issued February 7, 2017); E.B., Docket No. 16-0746 (issued June 1, 2016).

3 E.S., Docket No. 17-0698 (issued July 14, 2017). 

4 W.R., Docket No. 16-0098 (issued May 26, 2016).
3

IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case remanded for further action consistent with this 

order of the Board.

Issued: July 17, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board