S.A. and Department of Defense, Yuma Proving Ground, Yuma, AZ (Board decision, April 25, 2013)

ECAB remand decision. The Board set aside OWCP’s September 14, 2012 denial of S.A.’s traumatic injury claim and returned the case for review of evidence received that day. Whether the claimed injury is compensable remains undecided. 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

S.A., a Defense Department mechanic, claimed he hurt his lower back while working on a tank. OWCP denied his claim after finding inconsistencies in the incident account and stating that he had not responded to its request for evidence. The Board found that OWCP had received his statement and medical and factual records on the day it issued the denial but had not reviewed them. It set aside the decision and directed OWCP to consider those materials before deciding the claim again. The Board did not determine whether the incident or injury was established.

Decision snapshot

• Authority: Board record review limit, 20 C.F.R. § 501.2(c)(1).
• Outcome: September 14, 2012 injury claim denial set aside; evidence review and new decision ordered.
• Key point: Evidence OWCP received on the day of its denial had to be considered in deciding the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.A., Appellant
)
)
and ) Docket No. 13-117
) Issued: April 25, 2013
DEPARTMENT OF DEFENSE, YUMA
)
PROVING GROUND, Yuma, AZ, 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 October 19, 2012 appellant filed a timely appeal of a September 14, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim. By that decision, OWCP denied his claim on the grounds that he failed to establish that the April 5, 2012 incident occurred as alleged and, thus, fact of injury was not established.1

The Board, having duly considered the matter, concludes that the case is not in posture for decision. In correspondence dated August 16, 2012, OWCP informed appellant that the evidence currently of record was insufficient to establish his claim. It advised as to the type of factual and medical evidence necessary to establish his claim and allotted him 30 days within which to submit the requested information. On September 14, 2012 OWCP received medical and factual evidence from appellant as set forth below. The evidence submitted included an April 19, 2012 certificate of medical examination, an April 19, 2012 report by Dr. Tamra L. Barker, an employing establishment physician, the second page of a traumatic injury claim form indicating an injury date of April 5, 2012 and date of notice as April 9, 2012, and an April 9,

1
On July 30, 2012 appellant, then a 33-year-old heavy mobile equipment mechanic, alleged that he injured his lower back in the performance of duty on April 5, 2012 while working on the hull of a tank lifting fire bottles. 2012 report from Kurt Fossum2 and appellant’s statement regarding the April 5, 2012 incident and actions he took following the incident.

By decision dated September 14, 2012, OWCP denied appellant’s claim on the grounds that he did not establish that the injury occurred as alleged. It found the evidence was insufficient to show that the claimed event occurred due to discrepancies in the evidence as to how and when the incident occurred. OWCP also found that appellant had not responded to the August 16, 2012 development letter.3

In William A. Couch, the Board explained that its jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.4 The Board found that, as its decisions are final with regard to the subject matter appealed, it is crucial that OWCP consider all evidence relevant to the subject matter that was properly submitted to OWCP prior to the issuance of its final decision is addressed by OWCP,5 even if received the same day of issuance.6

On September 14, 2012 the same day OWCP issued its decision rejecting appellant’s claim on the basis that the incident did not occur as alleged, it received appellant’s April 5, 2012 statement detailing the incident and actions he took following the incident and medical evidence dated April 19, 2012. By finding that no evidence was received in response to its August16, 2012 inquiry, OWCP’s September 14, 2012 decision makes clear that this evidence was not reviewed. Because this evidence was received but not reviewed by OWCP in rejecting appellant’s claim, the Board concludes that the case must be remanded for a proper review of the evidence and an appropriate final decision on appellant’s entitlement to compensation.7

2
The record is unclear whether Mr. Fossum is a physician, nurse, physician’s assistant or other medical professional.
3
The claims examiner mistakenly noted the date of the letter as September 16, 2012.
4
41 ECAB 548 (1990); 20 C.F.R. § 501.2(c)(1).
5
See William A. Couch, supra note 4; see also Kenneth R. Love, 50 ECAB 193 (1998).
6
See Linda Johnson, 45 ECAB 439 (1994).
7
See M.B., Docket No. 09-17 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, supra note 6 (evidence received the same day as the issuance of OWCP’s decision).

2
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated September 14, 2012 is set aside and the case remanded for further proceedings consistent with this decision of the Board.

Issued: April 25, 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

3