L.L. and Department of Transportation, Federal Railroad Administration, Kansas City, MO (Board decision, September 26, 2014)

ECAB final decision on mootness. The Board set aside OWCP’s November 14, 2012 and March 13, 2013 denials after finding that OWCP had already accepted the claimed lumbar disc disease under another file. The Board did not decide the timeliness of this duplicate claim. 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 the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

L.L. filed a claim that work aggravated degenerative disc disease in his lower back. OWCP denied the claim as untimely, even after combining it with two earlier accepted back claim files. The Board found that OWCP had accepted the same lumbar disc disease as work related under one of those other files. Because L.L. was already receiving wage-loss and medical benefits for accepted conditions, the separate aggravation claim presented a moot issue. The Board set aside both timeliness denials without deciding their merits.

Decision snapshot

• Authority: FECA claim administration, 5 U.S.C. § 8101 et seq.
• Outcome: November 14, 2012 and March 13, 2013 denials set aside as moot.
• Key point: Acceptance of the same lumbar condition under another claim file resolved the issue raised in this file.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.L., Appellant
)
)
and ) Docket No. 13-1122
) Issued: September 26, 2014
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL RAILROAD ADMINISTRATION,
)
Kansas City, MO, 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 April 10, 2012 appellant filed a timely appeal from November 14, 2012 and March 13, 2013 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The claim was docket as No. 13-1122.

This claim has previously been before the Board. In an order dated August 13, 2012, the Board remanded the case to OWCP. The Board noted that appellant had two accepted claims for back conditions, one that occurred during a lifting incident in 1987, and one that occurred in a motor vehicle accident in 1988. These claims were adjudicated by OWCP under file numbers xxxxxx505 and xxxxxx534 respectively. The instant claim, for aggravation of preexisting degenerative disc disease, was filed on May 10, 2010 and was adjudicated by OWCP under file number xxxxxx789. The Board remanded the case for OWCP to combine the current claim with OWCP file numbers xxxxxx505 and xxxxxx534 and after any further development deemed necessary, to issue an appropriate de novo decision.

On remand, OWCP combined the three case files, and by decision dated November 14, 2012, it again denied the instant claim on the grounds that it was not timely filed. Appellant timely requested a review of the written record, and in a March 13, 2013 decision, an OWCP hearing representative affirmed the November 14, 2012 decision. The hearing representative noted that on July 8, 2010 OWCP accepted degenerative disc disease from L2-S1 under file number xxxxxx534.

The Board finds that the issue in the instant claim, xxxxxx789, whether employment factors aggravated appellant’s degenerative disc disease of the lumbar spine, is moot because under file number xxxxxx534, OWCP has accepted degenerative disc disease from L2-S1 as employment related. Appellant has been receiving wage-loss compensation for total disability since he retired in April 1989. He also receives medical benefits for his accepted conditions, which also include lumbosacral strain and L2-3 disc herniation.

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated March 13, 2013 and November 14, 2012 are set aside.1

Issued: September 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1
Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a member of the Board after May 16, 2014.

2