K.K. and Department of Health & Human Services, Gallup Indian Medical Center, Gallup, NM (Board decision, December 2, 2015)

ECAB remand decision. The Board set aside OWCP’s May 19, 2015 rescission decision and returned the case for consideration of evidence OWCP had received before issuing that decision. OWCP must issue a new merit decision; this order does not resolve the underlying injury claim. 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).

Plain-English summary

OWCP had accepted K.K.’s right hand sprain claim, then rescinded its acceptance and ended her benefits after concluding that the incident and medical connection had not been established. K.K. submitted factual and medical information that OWCP received on the same day it issued the rescission decision. The Board found that OWCP’s decision failed to consider this material. It set aside the rescission and directed OWCP to review the submitted evidence and issue a new merit decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.; Board decisions cited in the order on evidence received before a final OWCP decision.
• Outcome: May 19, 2015 rescission set aside; claim returned to OWCP for a new merit decision.
• Key point: OWCP had to consider evidence received on the day it issued its rescission decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.K., Appellant
)
) Docket No. 15-1662
and ) Issued: December 2, 2015
)
DEPARTMENT OF HEALTH & HUMAN
)
SERVICES, GALLUP INDIAN MEDICAL
)
CENTER, Gallup, NM, 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 COLLEEN DUFFY KIKO, Judge

On August 3, 2015 appellant filed an application for review, from a May 19, 2015 decision of the Office of Workers’ Compensation Programs (OWCP) which rescinded acceptance of her traumatic injury claim.

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 In this case, after OWCP accepted appellant’s traumatic injury claim for a right hand sprain, it advised her on April 13, 2015 of its proposal to rescind the acceptance of her claim and terminate her wage-loss compensation and medical benefits. OWCP found that the factual evidence had not established that she actually experienced the incident or employment factor alleged to have caused her injury and the medical evidence failed to establish a medical condition causally

1
41 ECAB 548 (1990).
2
Linda Johnson, 45 ECAB 439 (1994). related to the mechanism of injury. Appellant was allowed 30 days to submit additional evidence or argument. In response, she submitted medical records dated March 27 to June 20, 2014 and a December 22, 2014 letter, received by OWCP on May 19, 2015. In a May 19, 2015 decision, OWCP rescinded its acceptance of appellant’s claim and terminated her entitlement to benefits effective February 4, 2015, finding that she had not submitted any factual or medical evidence.

The Board finds that OWCP, in its May 19, 2015 rescission decision, did not review all the evidence received in the case. In that submission, appellant provided factual and medical information in response to OWCP’s notice of proposed rescission of her claim. Accordingly, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the May 19, 2015 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate merit decision on appellant’s claim.

IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded to OWCP for further proceedings consistent with this order.

Issued: December 2, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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