N.A. and Department of Homeland Security, Customs & Border Protection, Calexico, CA (Board decision, December 1, 2016)

ECAB remand decision. The Board set aside OWCP’s May 5, 2016 denial and remanded for consideration of evidence received before that decision. The emotional condition claim remains unresolved. 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 order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A Customs and Border Protection employee sought benefits for an emotional condition linked to alleged supervisor harassment. OWCP denied the claim while stating she had not responded to its evidence request. The Board found that OWCP had received her response and several medical reports on the day of its decision but had not considered them. It set aside the denial and ordered a new merits decision after review of all timely evidence.

Decision snapshot

• Authority: FECA emotional condition and duty to consider timely evidence.
• Outcome: May 5, 2016 denial set aside; claim remanded.
• Key point: OWCP had to consider evidence it received before issuing its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.A., Appellant
)
)
and ) Docket No. 16-1298
) Issued: December 1, 2016
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Calexico, CA, 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 June 14, 2016 appellant filed an application for review of a May 5, 2016 decision of the Office of Workers’ Compensation Programs (OWCP), which denied appellant’s claim for an emotional condition.

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 the case of William A. Couch,1 the Board held that when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued. Following OWCP’s April 5, 2016 letter to appellant requesting additional evidence, including a detailed description of the work incidents that contributed to her claimed emotional condition, appellant submitted responsive factual and medical evidence. This responds to the April 5, 2016 OWCP questionnaire. In a May 5, 2016 statement, appellant addressed the particular matters at the employing establishment that gave rise to her claim. She also submitted medical reports from Dr. Jorge F. Robles dated March 8 to April 20, 2016, who treated appellant for stress and diagnosed anxiety disorder caused by harassment from her supervisors. These reports were received by OWCP on May 5, 2016. In its May 5, 2016 decision, OWCP denied appellant’s

1
41 ECAB 548 (1990). claim for an emotional condition as appellant had not established that the alleged events occurred, noting that she had not responded to the April 5, 2016 development letter and questionnaire. It noted receiving an April 20, 2016 report from Dr. Robles, but indicated that the medical evidence submitted did not contain diagnoses. OWCP did not note receipt or consideration of appellant’s response to OWCP’s questionnaire or medical reports from Dr. Robles dated March 8 to 22, 2016.

The Board finds that OWCP, in its May 5, 2016 decision, did not review appellant’s response to the questionnaire or the medical reports form Dr. Robles received on May 5, 2016.2 For this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the May 5, 2016 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate merit decision on the claim.

IT IS HEREBY ORDERED THAT the May 5, 2016 decision of the Office of Workers’ Compensation Programs set aside. The case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: December 1, 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

2
Supra note 1. See Linda Johnson, 45 ECAB 439 (1994) (where the case was remanded for consideration of the evidence received the same day as the issuance of OWCP’s decision).

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