M.C. and Department of Veterans Affairs, Hudson Valley Health Care System, Castle Point, NY (Board decision, April 12, 2013)

ECAB final decision. The Board remanded M.C.’s emotional condition claim because OWCP did not review a statement it had received before deciding her reconsideration request. The order refers to a December 29, 2011 decision, while the discussion identifies the September 16, 2012 reconsideration denial; OWCP must issue a new merits 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

M.C. sought benefits for an emotional condition and later requested reconsideration. OWCP said it had received no new relevant evidence, although it had received her seven-page statement identifying claimed work factors. The Board held that OWCP had to consider evidence in its possession before issuing a decision. It remanded for OWCP to review the statement and issue an appropriate merits decision. The order’s date for the decision set aside differs from the reconsideration denial date described in its discussion.

Decision snapshot

• Authority: FECA, 5 U.S.C. § 8101 et seq.
• Outcome: Order sets aside a decision it dates December 29, 2011 and remands; discussion concerns the September 16, 2012 reconsideration denial.
• Key point: OWCP must consider a claimant statement received before its decision, even if its decision says no new evidence arrived.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.C., Appellant
)
)
and ) Docket No. 13-80
) Issued: April 12, 2013
DEPARTMENT OF VETERANS AFFAIRS,
)
HUDSON VALLEY HEALTH CARE SYSTEM,
)
Castle Point, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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 October 9, 2012 appellant filed a timely appeal of a September 16, 2012 Office of Workers’ Compensation Programs (OWCP) decision. The Board docketed the appeal as No. 13-

80. By its September 16, 2012 decision, OWCP denied merit review of a December 19, 2011
    decision denying benefits for an emotional condition. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

    The Board has duly considered the matter and notes that in the case of William A.
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    Couch, 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. In the present case, the last merit decision in this case was issued by an OWCP hearing representative on December 19, 2011. OWCP received a December 29, 2011 statement from appellant on February 10, 2012 in which she identified employment factors which allegedly caused or contributed to her alleged emotional condition. The statement was seven pages long

1
5 U.S.C. § 8101 et seq.
2
41 ECAB 548 (1990).
and presented several arguments relating to her claim for an emotional condition. Appellant thereafter requested reconsideration on June 13, 2012.

    In its September 16, 2012 decision, OWCP stated that it had not received any new and

relevant evidence in support of appellant’s request for reconsideration. While it is not required to list every piece of evidence submitted to the record, the record is clear that appellant’s December 29, 2011 statement, received by OWCP on February 10, 2012, was not reviewed, as OWCP specifically stated in its decisions that no additional evidence was received. For this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted prior to the issuance of the December 29, 2011 decision. Following such further development as the OWCP deems necessary, it shall issue an appropriate decision on the merits.

   IT IS HEREBY ORDERED THAT the December 29, 2011 decision of the Office of

Workers’ Compensation Programs is set aside; the case record is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: April 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

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