H.G. and Department of Homeland Security, Customs and Border Protection, Brownsville, TX (Board decision, March 12, 2013)

ECAB remand decision. The Board set aside OWCP's June 14, 2012 schedule award decision and returned the case for reconstruction of the record and a new merits decision. H.G.'s proper hearing loss award remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. 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

H.G., a Customs and Border Protection employee, appealed an OWCP schedule award for six percent binaural hearing loss. The Board found that the record sent for appeal did not include the award decision itself. It could not fairly review the award on that incomplete record. The Board set aside the decision and directed OWCP to reconstruct the file and issue a new merits decision protecting H.G.'s appeal rights.

Decision snapshot

• Authority: FECA merit decision and review, 5 U.S.C. § 8128(b)(1).
• Outcome: June 14, 2012 award decision set aside; case remanded for a complete record and new decision.
• Key point: The missing OWCP decision prevented fair appellate review of the hearing loss award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.G., Appellant
)
)
and ) Docket No. 12-1922
) Issued: March 12, 2013
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Brownsville, TX, 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 September 19, 2012 appellant filed a timely appeal of a June 14, 2012 schedule award decision of the Office of Workers’ Compensation Programs (OWCP).1 The Board assigned Docket No. 12-1922.

The Board has duly considered the matter and concludes that the case is not in posture for decision. The record indicates that on June 14, 2012 OWCP issued a decision which granted appellant a schedule award for six percent binaural hearing loss. However, the record does not contain a copy of the June 14, 2012 schedule award decision. Accordingly, the Board cannot conduct a full and fair adjudication of appellant’s claim as the record is incomplete. The Board finds, therefore, that the appeal docketed as 12-1922 is not in posture for a decision. The June 14, 2012 OWCP decision must be set aside and the case remanded to OWCP for reconstruction and proper assemblage of the record, to be followed by issuance of an appropriate merit decision pursuant to 5 U.S.C. § 8128(b)(1) to protect appellant’s right to appeal to the Board.

1
The Board notes that appellant’s appeal request form indicated that he was appealing an April 26, 2012 OWCP decision. The record does not contain a final adverse decision issued by OWCP on that date.
IT IS HEREBY ORDERED THAT the June 14, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further action consistent with this order of the Board.

Issued: March 12, 2013
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