L.K. and Department of the Air Force, Robins Air Force Base, GA (Board decision, May 22, 2014)

ECAB remand decision and order. The Board set aside OWCP’s June 10 and July 3, 2013 decisions. The record did not establish that L.K. had untimely filed a new injury claim, and OWCP must clarify the relationship to her earlier injury records before deciding the claim. 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). The claimed conditions remain unresolved.

Plain-English summary

L.K. reported vertigo, hearing loss and tinnitus that she said had progressed after a 1999 work head injury. OWCP treated her 2013 filing as a new injury claim and rejected it as untimely, then refused to reopen the case. The Board found that the filing appeared to concern consequences of the earlier injury, for which she had filed a timely claim. The record did not establish an untimely new claim. The Board directed OWCP to clarify the claim, combine relevant case records if appropriate, and decide the issues presented.

Decision snapshot

• Authority: Timeliness and proper characterization of the injury claim.
• Outcome: Both OWCP decisions set aside; claim remanded for clarification and adjudication.
• Key point: OWCP had treated a possible consequence of an earlier claimed injury as an untimely new claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.K., Appellant
)
)
and ) Docket No. 13-1775
) Issued: May 22, 2014
DEPARTMENT OF THE AIR FORCE, ROBINS
)
AIR FORCE BASE, GA, 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 22, 2013 appellant submitted an appeal of Office of Workers’ Compensation Programs’ (OWCP) decisions dated June 10 and July 3, 2013.1 The appeal was docketed as No. 13-1775.

On review of the case record the Board finds that the case must be remanded to OWCP.
The June 10, 2013 decision finds that the claim for compensation (Form CA-2) dated January 16, 2013 was untimely filed. OWCP found that the date of injury was November 11, 2002, the date appellant reported on the claim form that she was aware of an employment-related condition. The evidence of record does not establish an untimely claim for a new injury.

The January 16, 2013 claim identifies the conditions of vertigo, hearing loss and tinnitus.
According to the claim form, appellant sustained a head injury in 1999 at work and her conditions had “progressed slowly” since that injury. In a February 11, 2013 response to an OWCP request for information, she referred to an April 28, 1999 injury and another claim number, stating that this injury caused her hearing loss and ear problems.

1
The June 10, 2013 decision is a merit decision finding the claim filed on January 16, 2013 was untimely filed.
The July 3, 2013 decision finds that a request for reconsideration was insufficient to warrant merit review. Based on the evidence of record, appellant’s claim appeared to be a claim for consequential injuries resulting from a 1999 work injury. The record indicated that she filed a timely traumatic injury claim for an injury on April 28, 1999. OWCP also referred to a 2002 claim for vertigo and headaches, but the nature of this claim is not clear. If appellant is claiming consequential injuries from a 1999 injury, then the relevant case records should be combined and an appropriate decision issued based on all of the relevant evidence.

The Board notes that if appellant is claiming hearing loss or other conditions due to noise exposure in federal employment, she can submit evidence with respect to her allegation and OWCP can issue a proper decision on the issues presented.2 The current evidence of record does not establish an untimely filing of a claim for a new injury. The case will be remanded to OWCP for clarification, proper doubling of case records and appropriate adjudication of the issues presented.

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated July 3 and June 10, 2013 are set aside and the case remanded for further action consistent with this order of the Board.3

Issued: May 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2
With respect to the timeliness of a claim for hearing loss, OWCP would have to consider the date of last exposure to noise alleged to have contributed to the hearing loss. See Jose Salaz, 41 ECAB 743 (1990). 3 Richard J. Daschbach, Chief Judge, who participated in the preparation of this order, was no longer a member of the Board after May 16, 2014.

2