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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

__________________________________________   DANIELLE L. SOLANO, Appellant   and   U.S. POSTAL SERVICE, POST OFFICE, MAIL FORWARDING OPERATIONS, Denver, CO, Employer __________________________________________

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Docket No. 04-702 Issued: July 2, 2004

Appearances:                                                                          Case Submitted on the Record

Danielle L. Solano, pro se

Office of Solicitor, for the Director

 

 

DECISION AND ORDER

 

Before:

ALEC J. KOROMILAS, Chairman

DAVID S. GERSON, Alternate Member

WILLIE T.C. THOMAS, Alternate Member

 

 

JURISDICTION

 

On January 20, 2004 appellant filed a timely appeal from an Office of Workers’ Compensation Programs’ decision dated December 8, 2003, denying her request for reconsideration.  Pursuant to 20 C.F.R §§ 10.501.2(c) and 501.3, the Board has jurisdiction over the request for reconsideration. 

 

ISSUE

 

The issue is whether the Office properly denied appellant’s request for reconsideration on the grounds that it was untimely filed and failed to show clear evidence of error.

 

FACTUAL HISTORY

 

On September 18, 2000 appellant, then a 27-year-old computerized forwarding system (CFS) clerk, filed an occupational disease claim alleging that on August 1, 2000 she injured her arms due to her typing duties.  The Office accepted appellant’s claim for bilateral radial tenosynovitis. 

            On October 1, 2001 appellant alleged that she sustained a recurrence of disability on September 22, 2001 causally related to her August 1, 2000 employment injury.[1] 

 

            By decision dated March  4, 2002, the Office denied appellant’s September 22, 2001 recurrence of disability on the grounds that the evidence of record did not establish that the recurrence of disability was causally related to her August 1, 2000 employment injury.  A copy of the Office’s decision was sent to appellant’s correct address of record.[2] 

 

            In an undated letter received by the Office on October 24, 2003, appellant requested reconsideration and submitted additional evidence.[3] 

 

            By decision dated December 8, 2003, the Office denied appellant’s request for reconsideration on the grounds that her request was not timely made within one year of the March  4, 2002 decision and failed to show clear evidence of error. 

           

LEGAL PRECEDENT

 

            The Board’s jurisdiction to consider and decide appeals from final Office decisions extends only to those final decisions issued within one year prior to the filing of the appeal.[4]  As appellant filed her appeal with the Board on January 20, 2004 the only decision properly before the Board is the Office’s December 8, 2003 decision denying her request for reconsideration.[5]

            Section 8128(a) of the Federal Employees’ Compensation Act[6] does not entitle a claimant to a review of an Office decision as a matter of right.[7]  This section vests the Office with discretionary authority to determine whether it will review an award for or against compensation.[8]

The Office, through regulation, has imposed limitations on the exercise of its discretionary authority under section 8128(a).[9]  The Office will not review a decision denying or terminating compensation benefits unless the application for review is filed within one year of the date of that decision.[10]  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.[11]

 

ANALYSIS

In this case, the Office denied appellant’s October 24, 2003 request for reconsideration on the grounds that the request was not timely filed within one year of its March 4, 2002 decision.  The record indicates that the Office mailed a copy of the March 4, 2002 decision to appellant’s correct address of record.  It is presumed, in the absence of evidence to the contrary, that a notice mailed to an individual in the ordinary course of business was received by the individual.[12]  This presumption arises when it appears from the record that the notice was properly addressed and duly mailed.[13]  The appearance of a properly addressed copy in the case record, together with the mailing custom or practice of the Office itself, will raise the presumption that the original was received by the addressee.[14]   

The record shows that the Office mailed its March 4, 2002 decision to appellant’s last known address.  There is no evidence that appellant notified the Office of any change in her address.  A presumption of receipt, therefore, arises in this case.[15]  Accordingly, the Office’s March 4, 2002 decision was properly issued on that date and appellant’s October 24, 2003 request for reconsideration was not timely filed within one year of that decision.

In support of her untimely request for reconsideration of the Office’s March  4, 2002 decision, appellant submitted numerous medical reports concerning her claim for an injury on September 30, 2002.  This evidence is not relevant to the issue of whether she sustained a recurrence of disability on September 22, 2001 causally related to her August 1, 2000 employment injury and does not show clear evidence of error in the Office’s March 4, 2002 decision.

Appellant also submitted duty status reports dated October 2 through November 22, 2002, from a family practitioner and Dr. Clarence E. Henke, who indicated that she had certain work restrictions.  These reports do not address the issue of causal relationship between appellant’s claimed recurrence of disability on September 22, 2001 and her August 1, 2000 employment injury and do not show clear evidence of error in the Office’s March  4, 2002 decision.

In a narrative report dated October 4, 2002, Dr. Henke noted that appellant’s recent computer work had caused pain in her wrists and left forearm.  However, he did not mention the September 22, 2001 date for which appellant claimed a recurrence of disability nor did he explain how her upper extremity problems in 2002, were causally related to her August 1, 2000 employment injury.  Therefore, this report does not show clear evidence of error in the Office’s March 4, 2002 decision.

On appeal, appellant states that her October 24, 2003 letter to the Office was a request for reconsideration of a denial of her alleged September 30, 2002 recurrence of disability.  However, as noted above, the Office has not yet issued a final decision on this issue and, therefore, it is not before the Board in this appeal.  

CONCLUSION

            The Board finds that appellant’s untimely request for reconsideration failed to show clear evidence of error in the Office’s March 4, 2002 decision.  On remand after such development as it deems necessary, the Office should issue a final decision regarding appellant’s claim for a September 30, 2002 recurrence of disability. 

ORDER

 

            IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 8, 2003 is affirmed.

 

Issued: July 2, 2004

Washington, DC

 

 

 

 

 

                                                                                                            Alec J. Koromilas

                                                                                                            Chairman

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member