C.D. and Department of Homeland Security, Customs & Border Protection, Baltimore, MD (Board decision, September 18, 2012)

ECAB remand decision. The Board set aside OWCP's January 10, 2012 decision and sent the claim back for reconstruction of the record and a new decision. Whether the additional medical conditions will be accepted remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

C.D., a Customs and Border Protection employee, sought acceptance of syncope and headaches after OWCP accepted a head contusion from an incident in which she lost consciousness at work and struck her head. OWCP denied the additional conditions. Both C.D. and OWCP's hearing representative referred to a November 2010 medical report, but the report was missing from the record sent to the Board. The Board could not decide the medical issue on that incomplete record. It set aside OWCP's denial and directed OWCP to obtain the report, reconstruct the record as needed, and issue a new decision on the merits.

Decision snapshot

• Authority: Review of OWCP's denial of additional conditions under the Federal Employees' Compensation Act.
• Outcome: January 10, 2012 denial set aside and remanded for a complete record and a new merits decision.
• Key point: A medical report cited in the denial was absent from the record submitted for Board review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.D., Appellant
)
)
and ) Docket No. 12-895
) Issued: September 18, 2012
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Baltimore, MD, 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
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 15, 2012 appellant filed a timely appeal from a January 10, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for the acceptance of additional medical conditions. The claim was docketed as No. 12-895.1

The Board has duly considered the matter and finds that this case is not in posture for decision. Upon review of the case record submitted by OWCP, the Board finds that the record before it is incomplete.

On February 9, 2011 OWCP accepted that appellant sustained a head contusion when she lost consciousness at work on July 7, 2010 and hit her head on her desk. Appellant requested reconsideration, requesting that the additional conditions of syncope and headache be accepted. In a May 12, 2011 decision, OWCP denied her claim for additional conditions. Appellant timely requested a hearing that was held on October 13, 2011. At the hearing, she described a 13-page medical history and a November 17, 2010 report from Dr. Robert E. Rosenthal, Board-certified

1
Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a continuing desire for an oral argument in Washington, D.C. No written confirmation was received; thus the Board has decided the appeal on the record. in emergency and internal medicine.2 Appellant maintained that Dr. Rosenthal’s opinion was supportive that the additional conditions of headache and syncope were caused by the July 7, 2010 employment incident. In a January 10, 2012 decision denying appellant’s claim, OWCP’s hearing representative referenced Dr. Rosenthal’s November 17, 2010 report.

Dr. Rosenthal’s November 17, 2010 report is not found in the imaged case record forwarded to the Board. Hence the Board finds this case is not in posture for decision as the record before the Board is incomplete and would not permit an informed adjudication of the case by the Board. The case must therefore be remanded to OWCP to obtain the aforementioned report and for further reconstruction and assemblage deemed necessary, to be followed by a de novo decision on the merits of appellant’s claim.

IT IS HEREBY ORDERED THAT the January 10, 2012 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: September 18, 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

2
The record contains an undated two-page “Emergency Physician Record” in which Dr. Rosenthal diagnosed vasovagal syncope.

2