D.G. and U.S. Postal Service, Post Office, Minneapolis, MN (Board decision, July 29, 2015)

ECAB remand decision. The Board set aside OWCP's December 12, 2014 injury denial and remanded for review of medical reports received that day. 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. submitted an emergency room report and an attending physician report for his injury claim. OWCP received them on the same day it denied the claim for lack of medical evidence but did not review them. The Board held that OWCP must consider evidence received by the time it issues a final decision. It remanded for review of those reports and a new merits decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq..
• Outcome: December 12, 2014 injury denial set aside; evidence review remanded.
• Key point: Evidence received on the decision date had to be considered before denying the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.G., Appellant
)
)
and ) Docket No. 15-0723
) Issued: July 29, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Minneapolis, MN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 February 2, 2015 appellant filed an application for review, from a December 12, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) which denied appellant’s 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 William A. Couch,1 the Board held that, when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by appellant and received before the final decision is issued. The Couch principle applies with equal force when evidence is received by OWCP the same day a final decision is issued.2 After appellant filed his traumatic injury claim, OWCP advised him on November 13, 2014 of the type of evidence needed to establish his claim. He was provided 30 days to submit the additional evidence. In response, on November 25, 2014 and received by OWCP on December 12, 2014 appellant submitted a June 23, 2014 emergency room treatment report and a November 25, 2014 attending physician’s report, prepared by Dr. Emily Binstadt, a Board-certified emergency

1
41 ECAB 548 (1990).
2
Linda Johnson, 45 ECAB 439 (1994). physician. In its December 12, 2014 decision, OWCP denied appellant’s claim because he had failed to submit any medical evidence to establish causal relationship.

The Board finds that OWCP, in its December 12, 2014 decision, did not review all the evidence of record at the time it issued the decision to deny appellant’s claim.3 Accordingly, the case will be remanded to permit OWCP to review all of the evidence. Following this and any further development deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.

IT IS HEREBY ORDERED THAT the December 12, 2014 decision of the Office of Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further action 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
The Board notes that OWCP did not follow its regulations which require that OWCP advise a claimant of the additional evidence needed to support his claim and allow 30 days in which to submit such evidence. In this case, OWCP’s November 13, 2014 letter advised appellant of the type of evidence needed to establish his claim and allowed his 30 days in which to respond. OWCP’s December 12, 2014 decision was issued prior to the end of the 30-day period. See 20 C.F.R. § 10.121; J.V., Docket No. 13-295 (issued April 17, 2013).

2