D.H. and Department of Homeland Security, Transportation Security Administration, La Guardia Airport, New York City, NY (Board decision, July 10, 2014)

ECAB remand decision. The Board set aside OWCP’s September 30, 2013 decision upholding rescission of D.H.’s accepted injury claim and remanded for a readable surveillance recording and a new decision. Whether OWCP can justify rescinding acceptance remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

D.H., an airport security officer, reported a shoulder and upper back injury after lifting bins. OWCP first accepted the claim, then rescinded acceptance after reviewing a workplace surveillance DVD. The copy supplied to the Board was encrypted and unreadable, leaving the Board unable to assess evidence on which OWCP relied. Because OWCP bears the burden to justify rescission, the Board set aside the hearing decision and ordered OWCP to supply a readable recording, complete the record, and decide the matter again. The Board did not decide the related recurrence claims at this stage.

Decision snapshot

• Authority: OWCP review of compensation awards under 5 U.S.C. § 8128.
• Outcome: September 30, 2013 rescission decision set aside; case remanded to OWCP.
• Key point: The Board could not review a rescission based on a surveillance recording that it could not read.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and
)
) Docket No. 14-244
DEPARTMENT OF HOMELAND SECURITY, ) Issued: July 10, 2014
TRANSPORTATION SECURITY
)
ADMINISTRATION, LA GUARDIA AIRPORT,
)
New York City, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On November 15, 2013 appellant filed a timely appeal from merit decisions of the Office of Workers’ Compensation Programs (OWCP) dated June 3 and September 30, 2013. The claim was docketed as No. 14-244.

On September 22, 2012 appellant, a transportation security officer, filed a traumatic injury claim alleging that at 11:30 a.m. on September 18, 2012 he sprained a trapezoid muscle lifting a stack of bins. On the claim form, an employing establishment supervisor indicated that a surveillance video was reviewed covering the time period 10:00 a.m. to 12:30 p.m. on the day in question, and that the injury described was not seen. Appellant left work at 12:30 p.m.

On November 7, 2012 OWCP accepted that on September 18, 2012 appellant sustained sprain of the back, thoracic region, and sprain of shoulder and upper arm, rotator cuff. In a June 3, 2013 decision, it rescinded acceptance of his claim, based on evidence submitted by the employing establishment, including a surveillance DVD.1 Following a July 16, 2013 hearing, by

1
The June 3, 2013 rescission decision incorporated an April 8, 2013 notice of proposed rescission. In the April 8, 2013 notice, OWCP indicated that it had reviewed a surveillance DVD. decision dated September 30, 2013, an OWCP hearing representative affirmed the June 13, 2013 decision.2

The Board has duly considered the matter and finds that this case is not in posture for decision. Upon review of the case record submitted by OWCP, the Board finds that the record before it is incomplete because the DVD covering appellant’s work area from 10:00 a.m. to 12:30 p.m. on September 18, 2012, that was furnished to OWCP by the employing establishment is not readable.3 The burden is on OWCP to rescind acceptance of a claim.4 In light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of this claim, the Board finds this case is not in posture for decision as the record before the Board is incomplete and would not permit an informed adjudication of the case by the Board. The case must therefore be remanded to OWCP to furnish a readable DVD5 and for further reconstruction and assemblage deemed necessary, to be followed by an appropriate de novo decision.6

2
OWCP’s hearing representative also affirmed a March 18, 2013 decision denying three recurrence claims. As resolution of the claimed recurrences rests on resolution of whether OWCP met its burden of proof to rescind acceptance of appellant’s claim, it would be premature for the Board to address the issue at this time. 3 The Board’s technical staff examined the DVD found it to be encrypted and unreadable.
4
Section 8128 of Federal Employees’ Compensation Act provides that the Secretary of Labor may review an award for or against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128. The Board has upheld OWCP’s authority to reopen a claim at any time on its own motion under section § 8128 and, where supported by the evidence, set aside or modify a prior decision and issue a new decision. The power to annul an award, however, is not an arbitrary one and an award for compensation can only be set aside in the manner provided by the compensation statute. OWCP’s burden of justifying termination or modification of compensation holds true where OWCP later decides that it has erroneously accepted a claim for compensation. In establishing that its prior acceptance was erroneous, OWCP is required to provide a clear explanation of its rationale for rescission. Amelia S. Jefferson, 57 ECAB 183 (2005). 5 The Board’s technical staff suggests that the DVD be in AVI or MPEG format.
6
On November 13, 2013 OWCP found that an overpayment of compensation in the amount of $3,904.21 had been created because the acceptance of appellant’s claimed injury was rescinded. Appellant did not file an appeal from the November 13, 2013 decision with the Board.

2
 IT IS HEREBY ORDERED THAT the September 30, 2013 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: July 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3