E.H. and U.S. Postal Service, Post Office, San Antonio, TX (Board decision, June 7, 2016)

ECAB remand decision. The Board set aside OWCP’s October 20, 2015 decision and remanded for reconstruction of the record. 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 unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.H. appealed a reduction of her wage-loss benefits to zero after OWCP found that she did not cooperate with vocational rehabilitation. The hearing representative relied on new medical reports when upholding that reduction, but those reports were missing from the record sent to the Board. The Board could not review the ruling on an incomplete record. It directed OWCP to add the missing reports and issue a new decision.

Decision snapshot

• Authority: No statute cited in this order.
• Outcome: October 20, 2015 reduction decision set aside; case remanded.
• Key point: The Board needed the medical reports relied on below to review the benefits reduction.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.H., Appellant
)
)
and ) Docket No. 16-0180
) Issued: June 7, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
San Antonio, TX, 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 November 10, 2015 appellant filed an application for review of a decision of the Office of Workers’ Compensation Programs (OWCP) dated October 20, 2015 reducing her wage-loss compensation to zero as she did not cooperate with the early stages of vocational rehabilitation.

OWCP accepted that on or before April 15, 2003 appellant, then a 39-year-old clerk, sustained bilateral rotator cuff sprains. She underwent a right rotator cuff repair on June 19, 2003. Appellant retired from the employing establishment effective July 28, 2004. She received total disability compensation. On July 16, 2014 OWCP referred appellant for vocational rehabilitation after the medical evidence demonstrated that she could perform light- duty work. Appellant advised OWCP on September 30, 2014 that she would not cooperate with vocational rehabilitation as she believed she was totally disabled. Following additional development, OWCP issued a November 25, 2014 decision reducing her wage-loss compensation to zero, based on her failure to cooperate with the preliminary stages of vocational rehabilitation. Following a telephonic hearing, appellant submitted additional medical evidence.

In the decision dated and finalized October 20, 2015, the OWCP hearing representative affirmed the November 25, 2014 decision, finding in part that the medical evidence, including new reports from Dr. Richard E. Duey, an attending Board-certified orthopedic surgeon, dated March 17 and September 4, 2015 and a new report from Dr. Ellen Duncan, an attending Board- certified anesthesiologist, did not establish good cause for refusal. However, the record as transmitted to the Board does not contain the new medical reports.

The Board finds that the case is not in posture for a decision as the record is incomplete and the case must be remanded for reconstruction of the record.

In order to perform a fully informed adjudication of the issues, the Board must be able to review the complete evidentiary basis for OWCP’s October 20, 2015 decision finding that appellant had not submitted sufficient evidence to establish good cause for her failure to cooperate with vocational rehabilitation. The hearing representative relied on relevant medical evidence that is not included in the electronic case record now before the Board. Therefore, the case must be remanded to OWCP for reconstruction of the record, including associating Dr. Duey’s March 17 and September 14, 2015 reports and Dr. Duncan’s September 11, 2015 report with the case record. Following this and all other development deemed necessary, OWCP shall issue an appropriate decision in the case.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 20, 2015 be set aside and the case remanded for further action consistent with this order.

Issued: June 7, 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

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