D.A. and U.S. Postal Service, Processing & Distribution Center, Madison, WI (Board decision, May 12, 2011)

ECAB final decision. The Board set aside OWCP’s March 3, 2010 refusal to reconsider the occupational disease claim and remanded for review of evidence submitted before that decision. 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

D.A., a postal supervisor, claimed that work stress caused mental and physical symptoms. After OWCP denied the claim, he sought reconsideration and submitted medical reports, statements, and workplace records. OWCP said he had provided no new and relevant evidence. The Board found that OWCP had failed to consider the newly submitted material and set aside its refusal to reconsider. It remanded the case for OWCP to review the evidence and issue an appropriate decision.

Decision snapshot

• Authority: Review of submitted evidence under 20 C.F.R. § 501.6(c) and Board precedent.
• Outcome: March 3, 2010 reconsideration denial set aside; case remanded.
• Key point: OWCP must consider evidence received before issuing its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.A., Appellant
)
)
and ) Docket No. 10-1801
) Issued: May 12, 2011
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Madison, WI,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 28, 2010 appellant filed a timely appeal from the Office of Workers’ Compensation Programs March 3, 2010 nonmerit decision denying his request for reconsideration. The Board docketed the appeal as No. 10-1801.

The Board has duly considered the matter and notes that on September 15, 2008 appellant, then a 42-year-old supervisor of distribution services, filed an occupational disease claim alleging that on August 11, 2008 he first realized that his depression, panic attacks, chronic anxiety, vomiting, irritability and nausea were due to stress and disparate treatment at work. In a letter dated September 19, 2008, the Office advised appellant that the record was insufficient to establish his claim and advised him as to the type of medical and factual evidence to submit. It allotted him 30 days to provide the requested information. The Office denied his claim on February 26, 2009. Appellant requested reconsideration and submitted medical and factual evidence in support of his request including statements, medical reports from Dr. Jeffrey Schiffman, a treating Board-certified psychiatrist, and Dr. Anthony J. Braus, a treating psychiatrist; e-mails concerning his Family and Medical Leave Act requests, investigative reports; a February 25, 2009 grievance settlement agreement and disciplinary action evidence. However, in the March 3, 2010 decision denying reconsideration, the Office noted that appellant failed to submit any new and relevant evidence. Board precedent holds that the Office must review all the evidence submitted by a claimant and received by the Office prior to the issuance of a final decision.1 As the Board’s jurisdiction is final as to the subject matter, it is crucial that the Office accomplish this.2

Because the Office specifically found in its March 3, 2010 nonmerit decision that it had not received new and relevant evidence, it is clear to this Board that the Office did not consider the newly submitted evidence in reaching its decision. As such, the Board concludes that the case must be remanded for review of this evidence. Following any further necessary development, the Office shall issue an appropriate decision to protect appellant’s rights to future appeals.

IT IS HEREBY ORDERED THAT the March 3, 2010 nonmerit decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.

Issued: May 12, 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

1
See M.B., Docket No. 09-176 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of the Office’s decision); William A. Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c). 2 See id.

2