K.C. and U.S. Postal Service, Post Office, Bronx, NY (Board decision, August 4, 2014)

ECAB remand decision and order. The Board set aside OWCP’s October 3, 2013 refusal to review K.C.’s claim because OWCP had overlooked a medical report received before its decision. OWCP must consider the report and issue an appropriate decision; the underlying injury claim remains unresolved. 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 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

K.C. sought reconsideration of a denied injury claim and submitted a medical report clarifying the claimed injury history. OWCP declined a merit review, stating that it had not received the report. The Board found that OWCP had received it before issuing the refusal. It set aside the decision and directed OWCP to consider all evidence submitted at that time. The Board did not decide whether K.C. had proved the injury claim.

Decision snapshot

• Authority: OWCP duty to consider timely submitted evidence, as stated in the Board’s order.
• Outcome: Reconsideration refusal set aside; case remanded for consideration of the report.
• Key point: OWCP’s decision rested on an incorrect statement that the medical report had not arrived.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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K.C., Appellant
)
)
and ) Docket No. 14-819
)
Issued: August 4, 2014
U.S. POSTAL SERVICE, POST OFFICE, )
Bronx, NY, Employer
)
___________ )

Appearances: Case Submitted on the Record
Appellant, pro se,
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 February 27, 2014 appellant filed an application for review of an Office of Workers’ Compensation Programs’ (OWCP) decision dated October 3, 2013, which denied his reconsideration request on the grounds that the evidence and argument that he presented did not warrant a merit review.

The Board has duly considered the matter and finds that the case is not in posture for a decision and must be remanded to OWCP. In the case of William A. Couch,1 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.

In this case, in a decision dated March 15, 2013, an OWCP hearing representative found that appellant had not established his claim because the medical evidence was not sufficient to establish causal relationship between work activities and diagnosed conditions. On July 1, 2013 appellant requested reconsideration and he referenced additional medical evidence that he was submitting. The additional medical evidence included a May 7, 2013 report from Dr. Richard Memoli, an orthopedic surgeon, which clarified the history of the claimed injury. This evidence was received by OWCP on July 8, 2013. In its October 3, 2013 decision, OWCP denied 1 41 ECAB 548 (1990). appellant’s reconsideration request without a merit review. It particularly found that Dr. Memoli’s report was not received.

The Board finds that OWCP, in its October 3, 2013 decision, specifically found that the report from Dr. Memoli was not received. However, as noted above, this report was received by OWCP on July 8, 2013, prior to the October 3, 2013 decision. 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 October 3, 2013 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate decision on the claim.

IT IS HEREBY ORDERED THAT the October 3, 2013 decision of the Office of Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: August 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

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