A.R. and U.S. Postal Service, Post Office, Manassas, VA (Board decision, June 25, 2012)

ECAB remand decision. The Board set aside OWCP's May 24, 2011 decision and returned the occupational disease claim for a new review. Whether A.R.'s claimed condition is work related remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A.R. sought reconsideration after OWCP denied his occupational disease claim. He submitted several reports from his treating physician before OWCP issued its May 24, 2011 decision. OWCP said the medical evidence was insufficient but did not acknowledge or discuss those reports. The Board found that OWCP had failed to review evidence it received before deciding the claim. It set aside the decision and directed OWCP to consider the full record and issue a new one.

Decision snapshot

• Authority: The Board's rule in William A. Couch requiring OWCP to consider timely submitted evidence.
• Outcome: OWCP's May 24, 2011 decision set aside; claim remanded for review of omitted medical reports.
• Key point: OWCP had to consider the treating physician's reports received before its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.R., Appellant
)
)
and ) Docket No. 12-250
) Issued: June 25, 2012
U.S.POSTAL SERVICE, POST OFFICE,
)
Manassas, VA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Stephen Scavuzzo, for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

On November 15, 2011 appellant, through his attorney, filed an application for review of an Office of Workers’ Compensation Programs’ (OWCP) decision dated May 24, 2011 which denied modification of a decision denying appellant’s claim for occupational disease.

The Board has duly considered the matter and finds that the case should be remanded to OWCP. In the case of William A. Couch1, the Board held that when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued. Following OWCP’s March 11, 2010 merit decision, appellant filed a request for reconsideration on February 23, 2011. He submitted medical reports dated October 28, November 12 and December 10, 2009, January 8 and 29, 2010 from Dr. Syed M. Ahmed, a treating physician, who addressed his disability. This evidence was received by OWCP on February 23, 2011. In its May 24, 2011 decision, OWCP denied appellant’s reconsideration request on the grounds that he failed to submit sufficient medical evidence to establish causal relationship between the factors of his employment and his medical condition. It did not note receipt or consideration of the medical reports. OWCP only acknowledged receipt of an award summary that appellant submitted on March 10, 2011.

1
41 ECAB 548 (1990).
 The Board finds that OWCP did not review the medical reports from Dr. Ahmed received on February 23, 2011. For this reason, the case will be remanded to OWCP to consider all the evidence of record at the time of the May 24, 2011 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate decision on the claim.

IT IS HEREBY ORDERED THAT the May 24, 2011 decision of the Office of Workers’ Compensation Programs be set aside. The case record is remanded for further proceedings consistent with this order of the Board.

Issued: June 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

2