In the Matter of DONNA A. CHRISTLEY and Docket No. 89-778; Issued October 12, 1989 ORDER GRANTING PETITION FOR RECONSIDERATION AND REVERSING PRIOR DECISION Before MICHAEL J. WALSH, GEORGE E. RIVERS, The Board issued its decision and order in the above-captioned matter on June 23, 1989. The Board found that the Office of Workers' Compensation Programs properly denied appellant's request for a hearing before an Office hearing representative and that the Office properly denied appellant's request for further merit review under 5 U.S.C. § 8128(a). On July 20, 1989 counsel for appellant filed a petition for reconsideration setting forth arguments he believed merited further consideration by the Board. Counsel noted that appellant's claim was denied by the Office on January 7, 1988 and that a March 22, 1988 decision of the Office Branch of Hearings and Review denied appellant's hearing request as untimely. Counsel indicated that 30 days from January 8, 1988, the first day following the January 7, 1988 decision, would have been on Saturday, February 6, 1988. He noted that the postmark on appellant's hearing request to the Office was dated Monday, February 8, 1988, the next regular business day.1 The Director of the Office of Workers' Compensation Programs was served with a copy of the petition and responded by answer filed August 4, 1989 noting that an appellant may not reargue his case in the guise of a petition for reconsideration.2 The Director stated that he had no comment on appellant's petition and requested that the Board rule properly. The Board, having considered appellant's petition, concludes that the petition should be granted and the Board's June 23, 1989 decision should be reversed. The Office's standard for processing hearing requests is set forth at 20 C.F.R. § 10.131 and provides, in part, that a claimant not sat 'The case record reveals that appellant's hearing request, addressed to the Office Branch of Hearings and Review, was postmarked February 8, 1988. 2 See Virginia Faye Gabbert, 21 ECAB 149 (1969). isfied with a decision of the Office shall be afforded an opportunity for a hearing before a representative of the Office provided the hearing request is made in writing within 30 days of the date of issuance of the Office decision. The regulations provide: "A claimant is not entitled to an oral hearing if the request is not made within 30 days of the date of issuance of the decision as determined by the postmark of the request.. Further, the Office's Federal (FECA) Procedure Manual provides: "[T]he request is timely if it is mailed (as determined by the postmark) within 30 days of issuance of the district office's decision. If the claimant sent the request to the [district office] (instead of the Branch of Hearings and Review) and the envelope has not been retained, then the request is timely filed if it is date-stamped by the [district office] within 30 days of issuance of the decision. The Branch of Hearings and Review may deny requests date-stamped by the [district office] more than 30 days after the decision was issued on the basis that the date stamp showed untimely receipt and the claimant's failure to send the request to the Branch of Hearings and Review, as specified in the appeal rights accompanying the decision, made it impossible to determine timeliness from the postmark." In the present case, the Office issued a letter decision on January 7, 1988 which denied appellant's claim on the ground that she failed to discharge her burden of proof in establishing the essential elements of her claim. As noted by counsel for appellant, the 30-day time period for determining the timeliness of appellant's hearing request would commence on January 8, 1988, the first day following the issuance of the Office's January 7, 1988 decision denying her claim. Thirty days, as counted from January 8, 1988, is February 6, 1988 which fell on a Saturday. The first regular business day following February 6, 1988 was Monday, February 8, 1988, the date on which appellant's hearing request was postmarked. The Board finds that the circumstances of this case indicate that appellant's hearing request was properly postmarked within 30 days of the Office's January 7, 1988 decision and that appellant is entitled to a hearing, as requested, before an Office hearing representative. For this reason, the March 22, 1988 decision of the Office which denied appellant's hearing request should be reversed together with that portion of the Board's prior June 23, 1989 decision which found that the Office properly denied appellant's hearing request. IT IS ORDERED that the petition for reconsideration be granted. The March 22, 1988 decision of the Office of Workers' Compensation Programs is hereby reversed together with that portion of the Board's June 23, 1989 decision which affirmed the Office's denial of appellant's hearing request. In the Matter of ROSEANNA BRENNAN and U.S. Docket No. 89-918; Submitted on the Record; Before GEORGE E. RIVERS, DAVID S. GERSON, The issues are: (1) whether the Office of Workers' Compensation Programs met its burden of proof in rescinding its acceptance of the recurrence of appellant's disability after June 26, 1987; (2) whether the Office properly determined that appellant was not entitled to continuation of pay following her recurrence of disability; and (3) whether the Office abused its discretion in refusing to reopen appellant's case for review on the merits pursuant to section 8128 of the Federal Employees' Compensation Act. On December 17, 1983, appellant, then a 20-year-old multi-position letter sorting machine operator, filed a notice of traumatic injury and claim for compensation (Form CA-1) alleging that on December 16, 1983 she turned from a water fountain too quickly and twisted her right knee. Appellant stopped work on December 17, 1983 and sought treatment at the Lucerne Hospital emergency room. Appellant was examined on December 20, 1983 by Dr. James C. Barnett, a Board-certified orthopedic surgeon. In his report, Dr. Barnett stated that appellant while at work on December 16, 1983 "sustained a twisting-type stress to the right knee and noted the immediate onset of pain medially with an associated pop." He noted that appellant could remember no significant prior history of trauma to the knee. Dr. Barnett indicated that the x-rays obtained at the Lucerne Hospital were negative for any evidence of acute bony injury. He diagnosed a probable tear of the right medial meniscus. In a December 28, 1983 report, Dr. Barnett stated: "There is no question in my mind that [appellant] has sustained a tear of the right medial meniscus in a job-related injury on December 16, 1983." He indicated that appellant had been unresponsive to conservative treatment and recommended arthroscopic surgery. Appellant underwent an arthroscopic surgery on January 5, 1984. In his report, Dr. Barnett indicated that appellant was found to have a pathologic medial plica. He noted that both menisci were completely normal. By letter dated July 11, 1984, the Office of Workers' Compensation Programs accepted "the traumatic right medial plica as employment related." On July 16, 1987, appellant filed a claim for a recurrence of disability. In an attached statement, appellant related that on June 26, 1987 while working her regular tour of duty, she experienced pain in her right knee. She stated that she asked to see the nurse, and eventually returned to duty. Appellant indicated that after she had rested on the weekend, the discomfort had increased, but she did not find it impossible to perform her assigned duties. She noted that on Tuesday, June 30, 1987 she saw the nurse, who put her on light duty. Appellant stated that on Wednesday, July 1, 1987 "the pain worsened, and I found it impossible to exert any pressure whatsoever on the knee." In support of her recurrence, appellant submitted a July 6, 1987 report of Dr. Barnett. He indicated that appellant had a recent history of increasing pain and stiffness in her right knee with no specific history of trauma. Dr. Barnett stated that appellant's x-rays revealed no evidence of significant degenerative arthritic process or acute bony injury. He diagnosed possible tear of the right medial meniscus. By letter dated September 29, 1987, the Office requested appellant to submit additional information in support of her claim, including a detailed narrative medical report containing the physician's opinion regarding causal relationship between appellant's condition and the original injury. By letter dated November 13, 1987, the Office accepted appellant's recurrence of disability as due to her post-operative traumatic plica. Appellant submitted a report from Dr. Barnett dated February 16, 1988. Dr. Barnett indicated that he had been treating appellant since December 8, 1987, "with a recurrence of right knee pain perhaps suggestive of medial meniscal pathology." He stated that appellant's condition had not been responsive to conservative management including rest and anti-inflammatory agents, and that a technetium scan had revealed no asymmetric uptake. Dr. Barnett recommended repeat arthroscopic surgery. On April 25, 1988, an Office medical adviser examined appellant's case record, and indicated that appellant did not have objective evidence of internal derangement of the right knee. He noted that previously on arthroscopy only a medial plica was found. The Office medical adviser recommended that appellant be referred to another doctor for a second opinion. By compensation order dated June 6, 1988, the Office rejected appellant's claim for the reason that appellant's disability on and after June 26, 1987 was not causally related to the employment injury sustained on December 16, 1983. In the accompanying memorandum, the Office noted that appellant had not submitted any medical evidence showing that her current problems were related to the December 16, 1983 injury, and that appellant had been inadvertently informed that the recurrence of disability had been accepted. By letter dated September 6, 1988, appellant's representative requested reconsideration of the claim. Appellant submitted treatment notes dated December 11, 1987 to August 26, 1988, and a September 27, 1988 narrative report from Dr. Barnett. In his report, Dr. Barnett indicated that appellant was initially treated on December 20, 1983, "with a history of a twisting-type injury to her right knee sustained at work on December 16, 1983." Dr. Barnett discussed appellant's course of treatment from then until September 22, 1988. He noted that during arthroscopic surgery on July 25, 1988, appellant "was found to have some amount of synovitis and adhesions along the area of the prior plica resection compatible with her prior surgery." Dr. Barnett stated that on that date he informed appellant that he "had nothing further to offer her from an orthopedic standpoint and was unable to explain her continued complaints based on objective physical findings other than the definite weakness in the right lower extremity." He noted that appellant's injury would represent a five percent impairment to the right lower extremity. By compensation order dated February 27, 1989, the Office denied appellant's application for review because the new evidence submitted with the reconsideration request was insufficient to warrant review of the claim. The Office noted that the evidence was substantially similar to material on file which had already been considered, and none of the reports addressed the causal relationship between appellant's condition and the December 16, 1983 injury. The Board finds that the Office has failed to satisfy its burden of establishing that it erroneously accepted appellant's recurrence of |