S.D. and U.S. Postal Service, Post Office, Lakewood, NJ (Board decision, January 28, 2016)

ECAB remand decision. The Board set aside OWCP’s refusal of merit review and returned the claim for a complete record and a new decision. The underlying claim 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

S.D. appealed OWCP’s refusal to review his claim on the merits. His counsel said he had requested reconsideration and submitted more evidence, but those materials were absent from the record sent to the Board. A hearing transcript was also missing, making it unclear what other evidence had been omitted. The Board set aside OWCP’s decision and directed it to assemble and review the full record before issuing a new decision. It did not decide the underlying claim.

Decision snapshot

• Authority: Board review requires a complete record of relevant evidence.
• Outcome: July 21, 2015 OWCP decision set aside; case remanded for record assembly and a new decision.
• Key point: The Board could not review a merit-review denial on an incomplete case record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.D., Appellant
)
)
and ) Docket No. 15-1921
) Issued: January 28, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Lakewood, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, 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 22, 2015 appellant, through counsel, filed a timely appeal of a July 21, 2015 decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 15-1921.

The Board has duly considered the matter and finds that the case is not in posture for decision as the case record submitted to the Board is incomplete. The July 21, 2015 decision on appeal is a decision finding that appellant was not entitled to a merit review of his claim. In this regard, counsel had submitted a letter dated April 8, 2015 indicating that he had previously requested reconsideration of a July 8, 2014 hearing representative decision in October 2014.

The imaged record forwarded to the Board does not contain an October 2014 reconsideration request or additional medical evidence after the July 8, 2014 decision, but a review of the record clearly indicates that it is incomplete. The hearing representative indicated that an April 22, 2014 hearing was held, and yet the record contains no transcript or other evidence with respect to the hearing. It is not clear if additional evidence is missing. Since appellant’s counsel has claimed that he submitted additional evidence that is not in the imaged record, the case will be remanded to OWCP for proper assemblage of the case record. A proper review of the case and adjudication of the issues by the Board requires a complete record of the relevant evidence.1 After proper assemblage and review of all evidence associated with this claim, OWCP should issue an appropriate decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated July 21, 2015 is set aside and the case remanded for further action consistent with this order of the Board.

Issued: January 28, 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

1
See Terence M. Gore, Docket No. 94-0464 (issued June 26, 1995).

2