L.M. and Department of Homeland Security, Transportation Security Administration, Milwaukee, WI (Board decision, May 15, 2014)

ECAB remand decision and order. The Board set aside OWCP’s June 7, 2013 denial of L.M.’s schedule award claim. OWCP stated that it had received no additional evidence, although L.M. had submitted medical reports before the decision. OWCP must consider those reports and issue a new merits decision. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a). Entitlement to the schedule award remains unresolved.

Plain-English summary

L.M., a Transportation Security Administration employee, sought a schedule award for right-arm impairment related to accepted shoulder and arm conditions. OWCP denied the claim, stating that he had not submitted more evidence after its request. The Board found that L.M. had in fact submitted multiple medical reports in March and April 2013, before OWCP issued its decision. Because OWCP had not reviewed them, the Board set aside the denial and returned the case for consideration of the complete record.

Decision snapshot

• Authority: OWCP’s duty to consider evidence received before issuing a final decision.
• Outcome: Schedule award denial set aside; case remanded for review of submitted medical reports.
• Key point: OWCP overlooked timely submitted medical evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.M., Appellant
)
)
and ) Docket No. 13-1700
) Issued: May 15, 2014
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Milwaukee, WI, 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 July 1, 2013 appellant filed a timely appeal of a June 7, 2013 Office of Workers’ Compensation Programs’ (OWCP) decision. The Board docketed the appeal as No. 13-1700. By its June 7, 2013 decision, OWCP denied appellant’s claim for a schedule award, finding that he had no ratable impairment of the right upper extremity causally related to his accepted right shoulder and right arm conditions. Pursuant to the Federal Employees’ Compensation Act1 (FECA) 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.
Couch,2 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. OWCP stated in its June 7, 2013 decision that appellant had not submitted any evidence after the February 22, 2013 developmental letter in which it informed him that it required additional medical evidence in support of his schedule award claim. This was not correct;

1
5 U.S.C. § 8101 et seq.
2
41 ECAB 548 (1990). appellant submitted numerous medical reports in March and April 2013, including several reports containing examination findings. While OWCP is not required to list every piece of evidence submitted to the record, the record is clear that the evidence he submitted in March and April 2013 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 June 7, 2013 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate decision on the merits.

IT IS HEREBY ORDERED THAT the June 7, 2013 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: May 15, 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

2