H.H. and Department of Veterans Affairs, Veterans Health Administration, New York, NY (Board decision, April 14, 2015)

ECAB remand decision. The Board set aside OWCP’s September 9, 2014 denial and remanded for consideration of the evidence. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

H.H., a Veterans Health Administration employee, appealed denial of a traumatic injury claim. The Board found that OWCP had not reviewed his response to its factual questions, which it received on the day it issued the denial. It set aside the decision and returned the claim so OWCP could consider the evidence and issue a new merit decision.

Decision snapshot

• Authority: OWCP duty to consider evidence received before its decision.
• Outcome: September 9, 2014 denial set aside and remanded.
• Key point: Evidence received on the decision date still required OWCP review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
)
H.H., Appellant
)
)
and ) Docket No. 14-2079
)
Issued: April 14, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
New York, NY, Employer
)
_______ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

On September 30, 2014, appellant filed an application for review of a September 9, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) which denied his claim for a traumatic injury.

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 September 9, 2014, OWCP denied appellant’s claim for a traumatic injury, finding that the evidence did not establish that the claimed events occurred as described. It found that he had not responded to its questions regarding the factual portion of his claim.

1
41 ECAB 548 (1990).
 The Board finds that OWCP did not review the evidence received on September 9, 2014.2 In that submission, appellant provided a response to OWCP’s request for factual information regarding his claim.

As OWCP did not review this evidence, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the September 9, 2014 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 September 9, 2014 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: April 14, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief 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