J.S. and Department of Justice, Bureau of Prisons, Atwater, CA (Board decision, July 18, 2016)

ECAB remand decision. The Board set aside OWCP’s December 1, 2015 reconsideration denial and remanded for review of a medical report submitted before that decision. Entitlement to benefits remains unresolved. 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

J.S., a correctional treatment specialist, sought reconsideration after OWCP terminated her wage-loss and medical benefits for an accepted lumbar sprain. Her lawyer submitted a May 26, 2015 medical report with the request. OWCP denied reconsideration without addressing that report. The Board set aside the denial and directed OWCP to review the evidence and issue an appropriate decision.

Decision snapshot

• Authority: Review of evidence before a final decision, 20 C.F.R. § 501.6(c).
• Outcome: Reconsideration denial set aside and case remanded.
• Key point: OWCP must consider evidence received before it issues a decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 16-0505
) Issued: July 18, 2016
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, Atwater, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 21, 2016 appellant, through counsel, filed a timely appeal of a December 1, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as No. 16-0505.

The Board has duly considered the matter and notes that on March 28, 2011 appellant, then a 50-year-old correctional treatment specialist (contract manager), filed a traumatic injury claim (Form CA-1) alleging that on February 24, 2011 she sustained herniated discs and nerve impingement due to her employment duties. OWCP accepted the claim for lumbar sprain. Appellant stopped work on March 2, 2011, was paid wage-loss compensation on the supplemental rolls before being placed on the periodic rolls for temporary total disability by letter dated February 23, 2012. By decision dated August 6, 2014, OWCP terminated appellant’s wage-loss compensation and medical benefits effective August 6, 2014.2 In a letter dated

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 On June 6, 2015 appellant elected to receive benefits from the Office of Personnel Management in lieu of FECA benefits effective August 6, 2014. June 11, 2015, appellant’s counsel requested reconsideration and submitted a May 26, 2015 medical report. By decision dated December 1, 2015, OWCP denied reconsideration without considering the report. It noted that the only evidence received on reconsideration was a letter from counsel.

Board precedent holds that OWCP must review all the evidence submitted by a claimant and received by OWCP prior to the issuance of a final decision.3 As the Board’s jurisdiction is final as to the subject matter, it is crucial that OWCP accomplish this.4

Because the OWCP made no mention of any new evidence in denying appellant’s request for a merit review, it is clear to this Board that OWCP did not consider the evidence submitted by appellant in reaching its decision denying merit review. The May 26, 2015 report was received by OWCP on June 11, 2015. As OWCP did not consider the May 26, 2015 report, the Board concludes that the case must be remanded for review of this evidence. Following any further necessary development, OWCP shall issue an appropriate decision to protect appellant’s rights to future appeals.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 1, 2015 is set aside and the case remanded for further action consistent with this order of the Board.

Issued: July 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

3
See M.B., Docket No. 09-176 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A. Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c). 4 See id.

2