J.K. and U.S. Postal Service, Bainbridge Island Station, Bainbridge Island, WA (Board decision, May 25, 2011)

ECAB final decision. The Board set aside OWCP’s April 26, 2010 termination decision and remanded for review of J.K.’s timely response. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.K., a rural mail carrier, challenged the proposed termination of wage-loss benefits. OWCP issued the final termination decision stating that she had supplied no response, although it had received her letter disputing the medical basis three days earlier. The Board could not review that letter for the first time on appeal. It returned the case so OWCP could consider the submission and issue a new decision.

Decision snapshot

• Authority: Board review record under 20 C.F.R. § 501.2(c)(1).
• Outcome: April 26, 2010 wage-loss termination set aside; response to be considered on remand.
• Key point: OWCP had to consider the claimant’s letter received before its final decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.K., Appellant
)
)
and ) Docket No. 10-1421
) Issued: May 25, 2011
U.S. POSTAL SERVICE, BAINBRIDGE
)
ISLAND STATION, Bainbridge Island, WA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 28, 2010 appellant, through her attorney, filed a timely appeal of an April 26, 2010 decision of the Office of Workers’ Compensation Programs which terminated her wage- loss compensation on the grounds that she no longer had any disability causally related to her March 7, 2002 employment-related injuries.1 Citing William A. Couch,2 appellant’s attorney contends on appeal that the Office erred in failing to consider new evidence, an April 19, 2010 letter, submitted by appellant and received by the Office three days prior to the issuance of the April 26, 2010 termination decision. In the April 19, 2010 letter, appellant disagreed with the Office’s March 24, 2010 notice of proposed termination of her compensation benefits, contending that the February 20, 2009 medical report of Dr. Peter Wolff, a Board-certified surgeon and an Office referral physician, was insufficient to constitute the weight of the medical opinion evidence. Appellant further contended that she was physically incapable of returning to her regular work duties as a rural mail carrier. As the Office failed to consider this evidence, 1 In the April 26, 2010 decision, the Office advised appellant that she was still entitled to medical benefits for the accepted conditions which included left lower extremity superficial venus thrombosis and aggravation of left side plantar fasciitis. 2 41 ECAB 548 (1990) (the Office did not consider new evidence received four days prior to the date its decision was issued). counsel contends that the April 26, 2010 decision should be reversed and the case remanded to the Office to fully consider the evidence which was properly submitted by appellant prior to the issuance of the termination decision.

The Board has duly considered the matter and finds that this case is not in posture for decision. The Board notes that when the Office issued its termination decision on April 26, 2010 it found that appellant failed to submit any evidence or argument in response to its March 24, 2010 notice of proposed termination. However, on April 23, 2010 the Office received appellant’s April 19, 2010 letter disagreeing with its proposed action.

The Board’s jurisdiction of a case is limited to reviewing that evidence which is before the Office at the time of its final decision.3 Since the Board’s decisions are final as to the subject matter appealed,4 it is crucial that all evidence which was properly submitted to the Office prior to the time of issuance of its final decision be addressed.5 Board precedent requires the Office to review all evidence submitted by a claimant and received by the Office prior to the issuance of its final decision, including evidence received on the date of the decision.6 This is particularly important in this appeal where, as noted above, appellant submitted evidence contending that she continued to be totally disabled for work due to her accepted employment-related conditions, but there is no indication that this was considered by the Office before issuing its final decision. As the Office did not consider the evidence that it received on April 23, 2010 in reaching its April 26, 2010 decision, the Board cannot review such evidence for the first time on appeal.7 The Board finds that the case must be remanded for the Office to consider appellant’s April 19, 2010 letter.8 Following this and such other development as deemed necessary, the Office shall issue an appropriate merit decision.

3
20 C.F.R. § 501.2(c)(1).
4
Id. at § 501.6(d).
5
William A. Couch, supra note 2; see also Linda Johnson, 45 ECAB 439 (1994) (applying Couch where the Office did not consider a medical report received on the date of issuance of its decision). 6 Id.
7
Supra note 3.
8
The Board notes that appellant filed a timely request for oral argument, explaining the need to address the evidence of record before the Board. As the case is not in posture for a decision, the Board finds that oral argument is unnecessary in this instance. Consequently, the Board, in its discretion, denies appellant’s request for oral argument. See 20 C.F.R. § 501.5(a), (b).

2
 IT IS HEREBY ORDERED THAT the April 26, 2010 decision of the Office of Workers’ Compensation Programs be set aside and the case is remanded to the Office for further proceedings consistent with this order of the Board.

Issued: May 25, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3