United States Department of Labor
Employees’ Compensation Appeals Board
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__________________________________________
JERRY W. WEST, Appellant
and
DEPARTMENT OF HEALTH & HUMAN SERVICES, Social Security Administration, Joplin, MO, Employer __________________________________________ |
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Docket No. 04-1628 Issued: December 9, 2004 |
Appearances: Case Submitted on the Record
Jerry W. West, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chairman
DAVID S. GERSON, Alternate Member
A. PETER KANJORSKI, Alternate Member
JURISDICTION
On June 14, 2004 appellant filed a timely appeal of a nonmerit decision of the Office of Workers’ Compensation Programs dated April 15, 2004, which denied appellant’s reconsideration request on the grounds that it was untimely filed and failed to establish clear evidence of error. The Board notes that the last merit Office decision of record is an October 30, 2002 decision, which the Board affirmed in a decision dated November 13, 2003.[1] Because more than one year has elapsed between the last Office merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). As the only decision filed within one year of the date of appeal is the nonmerit decision dated April 15, 2004, the Board only has jurisdiction to review this decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for reconsideration of the merits of his claim on the grounds that it was untimely filed and failed to show clear evidence of error.
FACTUAL HISTORY
The case is on appeal to the Board for the second time. In the prior appeal, by decision dated November 13, 2003,[2] the Board affirmed the denial of appellant’s claim for an emotional condition, finding that he had not established that it was sustained in the performance of duty. The Board found the evidence of record insufficient to establish appellant’s allegations of harassment and retaliation, but found the evidence sufficient to establish appellant’s allegations regarding his work duties and overwork. Next, the Board determined that the record did not contain any rationalized medical opinion evidence establishing a causal relationship between his emotional condition and the accepted employment factors. Accordingly, the Board affirmed the Office’s decisions of August 26 and October 30, 2002. The law and the facts surrounding these appeals are set forth in the Board’s prior decisions and are hereby incorporated by reference.
Following the Board’s November 13, 2003 decision, in a letter dated March 5, 2004, which the Office received on March 8, 2004, appellant requested reconsideration. By decision dated April 15, 2004, the Office denied further review of the merits of the claim on the grounds that appellant’s March 5, 2004 reconsideration request of the Office’s October 30, 2002 decision was untimely filed and did not establish clear evidence of error.[3]
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.[4] The Office will not review a decision denying or terminating a benefit unless the application for review is filed within one year of the date of that decision.[5] When an application for review is untimely, the Office undertakes a limited review to determine whether the application presents clear evidence that the Office’s final merit decision was in error.[6] Office procedures state that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows “clear evidence of error” on the part of the Office.[7] In this regard, the Office will limit its focus to a review of how the newly submitted evidence bears on the prior evidence of record.[8]
The Office’s procedures at Chapter 2.1602.3b(1) provide the following with regard to the time limitations for filing a reconsideration request:
“(1) Decisions. The [Office’s] regulations establish a one-year time limit for requesting reconsideration (20 C.F.R. § 10.607(a)). The one-year period begins on the date of the original decision. However, a right to reconsideration within one year accompanies any subsequent merit decision on the issues. This includes any hearing or review of the written record decision, any denial of modification following a reconsideration, any merit decision by the Employees’ Compensation Appeals Board (ECAB), and any merit decision following action by the ECAB.…”[9] (Emphasis in the original.)
ANALYSIS
In the instant case, the letter from appellant requesting reconsideration was dated March 5, 2004 and was received by the Office on March 8, 2004. The Office found that this was not within one-year of the October 30, 2002 decision and, therefore, concluded that it was not timely filed. However, the last merit decision was the Board’s November 13, 2003 decision. As appellant’s March 5, 2004 request for reconsideration was filed within one-year of this decision, pursuant to Chapter 2.1602.3b(1) of the Office’s own procedures, the request for reconsideration was timely filed and the Office erroneously reviewed the evidence submitted in support of appellant’s reconsideration request under the clear evidence of error standard. Therefore, the Board will remand the case to the Office for review of the request under the proper standard of review.
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 15, 2004 is set aside and the case is remanded for further action consistent with this decision.
Issued: December 9, 2004
Washington, DC
Alec J. Koromilas
Chairman
David S. Gerson
Alternate Member
A. Peter Kanjorski
Alternate Member
[2] Id. On April 1, 2001 appellant, then a 33-year-old claims representative, filed an occupational disease claim for an emotional condition resulting from harassment at work.
[3] On appeal to the Board, appellant submitted additional new evidence. This evidence had also been received by the Office on April 15, 2004, the date of its decision. As the Office did not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time on appeal. 20 C.F.R. § 501.2(c).
[7] See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its most recent merit decision. The application must establish, on its face, that such decision was erroneous.” 20 C.F.R. § 10.607(b).