D.S. and Department of Justice, Federal Bureau of Investigation, Washington, DC (Board decision, June 4, 2014)

ECAB remand decision and order. The Board set aside OWCP’s November 7, 2013 refusal to reconsider D.S.’s hearing loss schedule award. OWCP must consider an audiology report it received before that decision and issue a merits decision; any larger award remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the issue decided 30 days after issuance. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.S., an FBI employee, requested reconsideration of a denied increase in his hearing loss schedule award. He submitted a new audiology report, and OWCP received it before issuing its decision. OWCP nevertheless said the report had not been enclosed and refused to reopen the claim. The Board held that OWCP had to consider evidence received before its final decision. It set aside the refusal and returned the claim for review of the report and a merits decision, without deciding the amount of any award.

Decision snapshot

• Authority: Federal Employees’ Compensation Act schedule award provision, 5 U.S.C. § 8107.
• Outcome: Refusal to reconsider set aside and remanded for review of an audiology report.
• Key point: OWCP had received the report before deciding the request and had to consider it.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.S., Appellant
)
)
and ) Docket No. 14-547
) Issued: June 4, 2014
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF INVESTIGATION,
)
Washington, DC, Employer
)
__________ )

Appearances: Case Submitted on the Record
J.C. Watson, 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 January 13, 2014 appellant, through his attorney, filed an application for review of an Office of Workers’ Compensation Programs’ (OWCP) decision dated November 7, 2013, which denied his request for reconsideration without conducting a merit review.

The Board has duly considered the matter and finds that the case is not in posture for decision and must be remanded to OWCP. In the case of William A. Couch, the Board held that, when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by it before the final decision is issued.1 Following a September 10, 2012 decision that denied an increased schedule award for appellant’s hearing loss, appellant requested reconsideration on August 9, 2013 and submitted additional medical evidence. This included a new audiological report, dated August 9, 2013, from Dr. Diane Markva, an audiologist. This report was received on August 12, 2013. In its November 7, 2013 decision, OWCP denied appellant’s reconsideration request. It noted that appellant’s request for reconsideration referenced an audiological report dated August 9, 2013, but stated that the report had not been enclosed and found that he had not submitted any new medical evidence or argument that had not been previously considered.

1
41 ECAB 548 (1990).
 The Board finds that OWCP, in its November 7, 2013 decision, did not review the August 9, 2013 report from Dr. Markva that was received by OWCP on August 12, 2013.2 For this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the November 7, 2013 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate merit decision on the claim.

IT IS HEREBY ORDERED THAT the November 7, 2013 decision of the Office of Workers’ Compensation Programs be set aside and the case record remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: June 4, 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

2
See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all evidence submitted by a claimant and received by OWCP prior to issuance of its final decision and noted that this principle applies with equal force when evidence is received by OWCP the same day a final decision is issued).

2