W.S. and Department of the Navy, Naval Undersea Warfare Center, Keyport, WA (Board decision, July 29, 2014)

ECAB remand decision and order. The Board set aside OWCP’s December 18, 2013 schedule award decision because OWCP had not sent it to W.S.’s authorized representative. OWCP must issue an appropriate merits decision to both W.S. and his representative; the award issue remains before OWCP. 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

OWCP granted W.S. a schedule award for three percent binaural hearing loss. Before that decision, W.S. had designated an attorney to represent him, but OWCP did not send the attorney a copy. The Board held that a decision is not properly issued unless both the claimant and authorized representative receive it. It set aside the award decision and returned the case for OWCP to issue a proper merits decision.

Decision snapshot

• Authority: 20 C.F.R. § 10.127, mailing decisions to a claimant and designated representative.
• Outcome: Schedule award decision set aside; case remanded for proper issuance.
• Key point: OWCP must send its decision to an authorized representative as well as to the claimant.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.S., Appellant
)
)
and ) Docket No. 14-842
) Issued: July 29, 2014
DEPARTMENT OF THE NAVY, NAVAL
)
UNDERSEA WARFARE CENTER,
)
Keyport, WA, Employer
)
__________ )

Appearances: Case Submitted on the Record
John Eiler Goodwin, 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 March 5, 2014 appellant, through his attorney, filed a timely appeal from a December 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as No. 14-842.

The Board has considered the matter and finds that OWCP’s December 18, 2013 decision must be set aside. On appeal appellant’s attorney contends that he did not receive a copy of the December 18, 2013 decision. On October 21, 2013 OWCP received an October 17, 2013 signed statement from appellant designating John Eiler Goodwin, Esquire, to represent him in proceedings before OWCP. In a November 19, 2013 letter, Mr. Goodwin asked OWCP to send him a copy of appellant’s case file. By letter dated November 20, 2013, OWCP forwarded a copy of the case file to Mr. Goodwin. In a December 18, 2013 decision, it granted appellant a schedule award for three percent binaural hearing loss. A copy of that decision was not sent to appellant’s authorized representative. OWCP regulations and Board case law require OWCP to send a copy of its decision to the authorized representative.1 The Board has held that a decision under the Federal Employees’ Compensation Act2 is not properly issued unless both appellant and the authorized representative have been sent copies of the decision.3 As the December 18, 2013 OWCP decision was not sent to appellant’s representative, the Board concludes that the decision was not properly issued. The Board will set aside the decision and remand the case for an appropriate and properly issued merit decision on the relevant issues. Accordingly,

IT IS HEREBY ORDERED THAT the December 18, 2013 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: July 29, 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

1
20 C.F.R. § 10.127 provides, a copy of the decision shall be mailed to the employee’s last known address. If the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the representative. See also M.R., Docket No. 11-632 (issued September 28, 2011). In George R. Bryant, Docket No. 03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when it did not send a copy of that decision to the authorized representative. In James Consentino, Docket No. 04-1774 (issued October 21, 2004), the Board found that OWCP improperly issued a decision terminating compensation because it did not mail the decision to appellant’s representative and declared the termination decision null and void. 2 5 U.S.C. § 8101 et seq.
3
See R.J., Docket No. 12-174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003).

2