V.S. and U.S. Postal Service, Post Office, Bellmawr, NJ (Board decision, April 25, 2014)

ECAB remand decision. The Board set aside OWCP’s prior decision and directed further proceedings. The underlying claim remains unresolved. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

V.S. appealed OWCP’s denial of compensation for a period in 2011. The record sent to the Board omitted the challenged decision and months of case documents, even after an order to complete it. The Board could not review the claim on that incomplete record. It set aside OWCP’s decision and returned the case for reconstruction and a new merits decision. Entitlement remains unresolved.

Decision snapshot

• Authority: FECA, 5 U.S.C. § 8101 et seq.
• Outcome: October 19, 2012 decision set aside; OWCP directed to reconstruct the record and issue a new merits decision.
• Key point: The Board lacked the decision and months of underlying case material needed to review the appeal.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
V.S., Appellant
)
)
and ) Docket No. 13-156
) Issued: April 25, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Bellmawr, NJ, 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
ALEC J. KOROMILAS, Alternate Judge

On October 31, 2012 appellant filed a timely application for review of the Office of Workers’ Compensation Programs’ (OWCP) decision dated October 19, 2012 in OWCP file number xxxxxx858 denying his claim for compensation for the period August 8 through September 13, 2011. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

The Board, having duly considered the matter, concludes that the case is not in posture for decision. In this regard, the Board notes that the record before the Board is not complete. The record does not contain the October 19, 2012 decision1 or any other documents between January 25 and November 6, 2012. The Board issued an Order to Complete the Record within 30 days on June 18, 2013.2 However, upon inspection of the case record, the Board finds that the Director of OWCP did not produce the complete case record or show the reason why he cannot comply.3 As set forth in the June 18, 2013 Order to Complete the Record, the Board is issuing

1
Appellant submitted this decision to the Board with his appeal papers.
2
Docket No. 13-156 (issued June 18, 2013).
3
Following the June 18, 2013 Order to Complete the Record, OWCP issued two decisions on the merit issue, June 24, 2013 and November 5, 2013. However, the Board and OWCP may not simultaneously have jurisdiction over the same case. OWCP therefore did not have the authority to issue its June 24 and November 5, 2013 decisions and they are null and void. 20 C.F.R. § 501.2(c)(3); Arlonia B. Taylor, 44 ECAB 591, 597 (1993). this Order Remanding Case as it is unable to determine whether all of the pertinent evidence reviewed by OWCP in reaching appellant’s claim is in the record currently before the Board.

Section 501.2(c) of the Board’s Rules of Procedure,4 provides that the Board has jurisdiction “to consider and decide appeals from the final decision of OWCP in any case arising under the [Federal Employees’ Compensation] Act.”5 Additionally, the Board’s review of the case is limited to the evidence which was before OWCP at the issuance of the final decision.6

Since the record as transmitted to the Board does not contain evidence that OWCP relied upon in reaching its final decision or the final decision itself, the Board is unable to properly “consider and decide” appellant’s claim. The October 19, 2012 decision of OWCP must be set aside and the case remanded to OWCP for reconstruction and proper assemblage of the case record. Following this and such further development as OWCP deems necessary, it shall issue an appropriate merit decision pursuant to 5 U.S.C. § 8128(b)(1) to preserve appellant’s right to future appeals. Accordingly,

IT IS HEREBY ORDERED that the October 19, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: April 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

4
20 C.F.R. § 501.2(c).
5
5 U.S.C. §§ 8101-8193.
6
See 20 C.F.R. § 501.2(c)(1).

2