R.G. and U.S. Postal Service, Post Office, Alliance, OH (Board decision, April 8, 2011)

ECAB remand decision and order. The Board set aside OWCP's May 13, 2010 schedule award decision and returned the case for review of evidence OWCP received before issuing that decision. R.G.'s entitlement to a larger award remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order 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 order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

R.G., a Postal Service employee, appealed a decision that left his left leg schedule award at one percent impairment. At a hearing, the representative kept the record open for additional medical evidence. OWCP received that evidence two days before issuing its decision, but the decision stated that none had arrived. The Board set the decision aside and directed OWCP to consider the timely evidence before deciding the merits again. The Board did not determine the correct impairment percentage.

Decision snapshot

• Authority: OWCP's duty to consider evidence received before its final decision.
• Outcome: May 13, 2010 decision set aside; schedule award case remanded.
• Key point: OWCP had to review medical evidence it received while the record was open.

Full text (ECAB public release)

-United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.G., Appellant
)
)
and ) Docket No. 10-1622
) Issued: April 8, 2011
U.S. POSTAL SERVICE, POST OFFICE,
)
Alliance, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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 June 3, 2010 appellant, through his attorney, filed a timely appeal of a May 13, 2010 Office of Workers’ Compensation Programs’ schedule award decision. The Board docketed the appeal as No.10-1622. By its May 13, 2010 decision, the Office hearing representative affirmed the Office’s October 15, 2009 decision, finding that appellant had no more than one percent impairment of his left lower extremity for which he received a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

The Board has duly considered the matter and notes that in the case of William A. Couch,1 the Board held that, when adjudicating a claim, the Office is obligated to consider all evidence properly submitted by a claimant and received by the Office before the final decision is issued. In the present case, the Office hearing representative, during the February 19, 2010 telephonic hearing, agreed to leave the record open for an unspecified time to allow appellant to submit additional medical evidence. The Office received the additional medical evidence on May 11, 2010. By decision dated May 13, 2010, the hearing representative affirmed the Office’s October 15, 2009 decision, finding that appellant had no more than one percent impairment of his left lower extremity. He noted that appellant’s attorney indicated at the telephonic hearing that he was attempting to obtain a new impairment rating from a physician and that the case record was held open for an additional period following the hearing to allow appellant to submit 1 41 ECAB 548 (1990). medical evidence in support of his claim. The hearing representative specifically stated, “To date no additional medical evidence or impairment rating has been received.”

It appears that the hearing representative in his May 13, 2010 decision did not review the additional evidence properly submitted by appellant and received by the Office on May 11, 2010, as no reference is made to the evidence in the decision. For this reason, the case will be remanded to the Branch of Hearings and Review to enable the Office to properly consider all the evidence submitted prior to the issuance of its May 13, 2010 decision. Following such further development as the Office deems necessary, it shall issue an appropriate decision on the merits.

IT IS HEREBY ORDERED THAT the May 13, 2010 decision of the Office of Workers’ Compensation Programs is set aside; the case record is remanded to the Office for further proceedings consistent with this order of the Board.

Issued: April 8, 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

2