J.V. and U.S. Postal Service, Post Office, Paramus, NJ (Board decision, April 17, 2013)

ECAB final decision. The Board set aside OWCP’s October 25, 2012 injury denial and remanded the claim. OWCP ruled before the 30-day period it had given J.V. to supply missing evidence expired. 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

J.V. filed a traumatic injury claim with OWCP in September 2012. On October 3, OWCP requested additional factual and medical evidence and said it would hold the claim open for 30 days. It denied the claim on October 25, before that period ended. The Board held that this violated OWCP’s regulation requiring at least 30 days to submit the requested evidence. It set aside the denial and returned the case for further action without deciding whether J.V. had proved an injury.

Decision snapshot

• Authority: 20 C.F.R. § 10.121.
• Outcome: October 25, 2012 injury denial set aside and case remanded.
• Key point: OWCP must allow the full promised evidence period before denying an insufficient claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.V., Appellant
)
)
and ) Docket No. 13-295
) Issued: April 17, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Paramus, 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
PATRICIA HOWARD FITZGERALD, Judge

On November 20, 2012 appellant filed an application for review of the Office of Workers’ Compensation Programs’ (OWCP) decision dated October 25, 2012 that denied appellant’s claim for a traumatic injury. The appeal was docketed as 13-295.

In this case, appellant filed a traumatic injury claim on September 25, 2012. The Board notes that, prior to the October 25, 2012 decision, OWCP informed appellant on October 3, 2012 that the evidence submitted was insufficient to establish his claim. OWCP advised him of the type of factual and medical evidence needed to establish his claim and requested that he submit such evidence, particularly requesting that he submit a physician’s reasoned opinion addressing the relationship of his claimed condition and specific employment factors. It advised appellant that his case would be held open for 30 days to submit the requested information.

The Board finds that OWCP did not follow its regulations which requires that OWCP advise appellant of the additional evidence needed to support his claim and allow 30 days in which to submit such evidence. In this instance, OWCP issued a decision denying appellant’s claim on October 25, 2012, prior to the end of the 30-day period.

The Board has duly considered the matter and notes that the case is not in posture for a decision. Section 10.121 of OWCP’s regulation, states that, if a claimant submits factual evidence, medical evidence, or both in support of his or her claim, but OWCP determines that this evidence is not sufficient to meet the burden of proof, OWCP will inform the claimant of the additional evidence needed and provide the claimant at least 30 days to submit the evidence required.1 Proceedings under the Federal Employees’ Compensation Act2 (FECA) are not adversarial in nature. OWCP shares responsibility in the development of the evidence and has an obligation to see that justice is done.3 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations at section 10.121.4

As the 30-day period for submission of additional evidence had not expired at the time it issued its decision denying appellant’s claim, the Board finds that OWCP did not fulfill its responsibility under section 10.121 of its regulations.5

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated October 25, 2012 be set aside. The case is remanded to OWCP for further action consistent with this order.

Issued: April 17, 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

1
20 C.F.R. § 10.121.
2
5 U.S.C. §§ 8101-8193.
3
William B. Webb, 56 ECAB 156 (2004).
4
Id.
5
On December 6, 2012 OWCP issued a decision vacating the October 25, 2012 decision. However, this decision is null and void as the Board and OWCP may not simultaneously have jurisdiction over the same case. OWCP may not issue a decision regarding the same issue on appeal before the Board. See Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

2