D.G. and U.S. Postal Service, East Liberty Station, East Liberty, PA (Board decision, July 29, 2015)

ECAB remand decision. The Board set aside OWCP's July 30, 2014 emotional-condition denial and remanded for consideration of omitted evidence. OWCP must decide the underlying claim after the ordered proceedings; the Board did not resolve entitlement to benefits. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days of issuance unless this decision 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.G. appealed denial of an emotional-condition claim. The hearing representative discussed submissions through June 19, 2014 but did not address documentation he provided on June 25. The Board held that OWCP must review all evidence received before its decision. It remanded for consideration of that material and a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq..
• Outcome: July 30, 2014 denial set aside; emotional-condition claim remanded.
• Key point: OWCP's decision omitted timely submitted evidence supporting the claimed workplace factors.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.G., Appellant
)
)
and ) Docket No. 15-0656
) Issued: July 29, 2015
U.S. POSTAL SERVICE, EAST LIBERTY
)
STATION, East Liberty, PA, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 24, 2015 appellant, through counsel, timely filed an application for review of a July 30, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied his claim for an emotional condition.1

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,2 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 the decision dated July 30, 2014, an OWCP hearing representative denied appellant’s claim for an emotional condition, finding that the evidence had failed to establish compensable factors of employment. She noted that following the oral hearing appellant submitted additional argument with a

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 30, 2014, the date of OWCP’s last decision was January 26, 2015. Since using January 30, 2015, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is January 24, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 2 41 ECAB 548 (1990).
June 16, 2014 brief and that the employing establishment submitted comments on June 18 and 19, 2014. The hearing representative did not, however, address the additional evidence submitted by appellant on June 25, 2014.

The Board finds that OWCP did not review the evidence received on June 25, 2014.3 In that submission, appellant provided supportive documentation of assertions made at the oral hearing. While the hearing representative specifically addressed appellant’s allegations made at the oral hearing as well as additional evidence submitted by appellant and the employing establishment through June 19, 2014, she did not mention any evidence submitted by either party after June 19, 2014. The Board finds that the record establishes that the hearing representative did not review the June 25, 2014 evidence in the July 30, 2014 decision.

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 July 30, 2014 decision. Following such further development as OWCP deems necessary, it shall issue a de novo decision on the claim.

IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: July 29, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3
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