R.F. and Department of the Navy, Puget Sound Naval Shipyard, Bainbridge Island, WA (Board decision, August 29, 2012)

ECAB final decision. The Board set aside OWCP's November 28, 2011 schedule award decision because OWCP did not send it to R.F.'s authorized representative. The case returns to OWCP for a properly issued merit decision; the Board did not resolve the hearing loss claim. 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).

Plain-English summary

R.F. appealed OWCP's denial of a schedule award for hearing loss. His attorney said he had not received the decision, even though OWCP had acknowledged him as R.F.'s authorized representative. The Board found that OWCP mailed the decision without sending a copy to the attorney. Because the governing rule requires service on both the claimant and designated representative, the decision was not properly issued. The Board set it aside and returned the case for a properly issued merit decision.

Decision snapshot

• Authority: FECA decision service under 20 C.F.R. § 10.127.
• Outcome: November 28, 2011 decision set aside; case remanded.
• Key point: OWCP must send its decision to the claimant's authorized representative for proper issuance.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.F., Appellant
)
)
and ) Docket No. 12-684
) Issued: August 29, 2012
DEPARTMENT OF THE NAVY, PUGET
)
SOUND NAVAL SHIPYARD,
)
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
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 6, 2012 appellant, through his attorney, filed a timely appeal from a November 28, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as No. 12-684.

The Board has considered the matter and finds that OWCP’s November 28, 2011 decision must be set aside. On appeal appellant’s attorney contends that he did not receive a copy of the November 28, 2011 decision. On April 18, 2011 OWCP received an April 11, 2011 signed statement from appellant designating John E. Goodwin, Esq., to represent him in proceedings before OWCP. By letter dated April 20, 2011, OWCP acknowledged John E. Goodwin, Esq., as appellant’s authorized representative. By decision dated November 28, 2011, OWCP denied appellant’s schedule award claim finding that his hearing loss was not severe enough to be considered ratable. A copy of that decision was not sent to appellant’s authorized representative. OWCP’s regulations and Board case law require OWCP to send a copy of its decision to the authorized representative.1 The Board has held that a decision under the Federal Employees Compensation Act2 (FECA) is not properly issued unless both appellant and the authorized representative have been sent copies of the decision.3 As the November 28, 2011 decision was not sent to appellant’s representative, the Board concludes that the decision was not properly issued. The Board will set aside the decision and remand the case for an appropriate and properly issued merit decision on the relevant issues. Accordingly,

IT IS HEREBY ORDERED THAT the November 28, 2011 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: August 29, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1
20 C.F.R. § 10.127 provides, a copy of the decision shall be mailed to the employee’s last known address. If the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the representative. See also M.R., Docket No. 11-632 (issued September 28, 2011). In George R. Bryant, Docket No. 03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when it did not send a copy of that decision to the authorized representative. In James Consentino, Docket No. 04-1774 (issued October 21, 2004), the Board found that OWCP improperly issued a decision terminating compensation because it did not mail the decision to appellant’s representative and declared the termination decision null and void. 2 5 U.S.C. § 8101 et seq.
3
See R.J., Docket No. 12-174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003).

2