D.H. and Department of Homeland Security, Transportation Security Administration, New York City, NY (Board decision, January 20, 2016)

ECAB remand decision. The Board set aside OWCP’s rescission decision and returned the case for a readable copy of evidence OWCP relied on. Whether the accepted injury claim should be rescinded remains unresolved. 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).

Plain-English summary

D.H., a transportation security officer, challenged OWCP’s rescission of an accepted injury claim. OWCP had relied on surveillance video, but the copy sent to the Board was unreadable. The Board had already returned the case once for this problem, and the new record again contained an unreadable disc, possibly an older copy. It set aside OWCP’s latest decision and directed it to provide a readable video and issue a new decision. The Board did not decide whether rescission was justified.

Decision snapshot

• Authority: Board review requires a complete record of evidence relied on by OWCP.
• Outcome: June 3, 2015 rescission decision set aside; case remanded for a readable video and a new decision.
• Key point: The Board could not review a rescission grounded in video evidence it could not read.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and
)
) Docket No. 15-1863
DEPARTMENT OF HOMELAND SECURITY, ) Issued: January 20, 2016
TRANSPORTATION SECURITY
)
ADMINISTRATION, New York City, NY,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
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 September 15, 2015 appellant, through counsel, filed a timely appeal from a June 3, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 15-1863.1

This case has previously been before the Board. In a July 10, 2014 order, the Board found the case not in posture for decision because the record submitted included a DVD purported to cover appellant’s work area from 10:00 a.m. to 12:30 p.m. on September 18, 2012,

1
On September 22, 2012 appellant, a transportation security officer, filed a traumatic injury claim alleging that at 11:30 a.m. on September 18, 2012 he sprained a trapezoid muscle lifting a stack of bins. On the claim form an employing establishment supervisor indicated that a surveillance video was reviewed covering the time period 10:00 a.m. to 12:30 p.m. on the day in question, and that the injury described was not seen. Appellant left work at 12:30 p.m. On November 7, 2012 OWCP accepted that on September 18, 2012 he sustained sprain of the back, thoracic region, and sprain of shoulder and upper arm, rotator cuff. In a June 3, 2013 decision, that incorporated an April 8, 2013 notice of proposed rescission, OWCP rescinded acceptance of appellant’s claim, based on evidence submitted by the employing establishment. This included a surveillance digital video disc (DVD) that it had reviewed. Following a July 16, 2013 hearing, by decision dated September 30, 2013, an OWCP hearing representative affirmed the June 13, 2013 decision. She also affirmed a March 18, 2013 decision denying three recurrence claims. the date of injury. The DVD forwarded to the Board with the case record was not readable.2 The Board found that, in light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of the claim,3 the case was not in posture for decision as the record before the Board was incomplete. The Board remanded the case to OWCP to furnish a readable DVD and for further reconstruction and assemblage deemed necessary, to be followed by an appropriate de novo decision.4

Following remand, on August 13, 2014 OWCP asked the employing establishment to provide a readable DVD. In an August 21, 2014 decision, it rescinded acceptance of appellant’s claim. Appellant, through counsel, timely requested a hearing. On March 9 and 17, 2015 OWCP telephoned the employing establishment requesting that it forward a readable copy of the DVD. A hearing was held on March 17, 2015. OWCP indicated that it had received a readable DVD on March 31, 2015. On June 3, 2015 an OWCP hearing representative affirmed the August 21, 2014 decision.

The Board again finds the case not in posture for decision because the record submitted to the Board is again incomplete. The DVD provided to the Board is not readable. It was again examined by the Board’s technical staff who found it to be unreadable. The Board notes that documentation in the case record accompanying the DVD indicates that the evidence was received on March 19, 2013. As noted above, a readable DVD was provided to OWCP in March 2015. It is therefore unclear if the DVD in the case record before the Board at this time is the original DVD forwarded to OWCP in 2013 or a second DVD forwarded in 2015 and found readable by OWCP.

In light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of this claim,5 the Board finds this case is not in posture for decision. The Board, therefore, will again remand the case to OWCP to furnish a readable DVD6 and for further reconstruction and assemblage deemed necessary, to be followed by an appropriate de novo decision.

2
The Board’s technical staff reviewed the DVD and found it to be encrypted and unreadable.
3
Supra note 1.
4
Docket No. 14-244 (issued July 10, 2014).
5
Supra note 1.
6
Based on advice from of technical staff, the Board suggests that the DVD be in AVI or MPEG format.

2
 IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: January 20, 2016
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

3