R.B. and Department of the Interior, George Washington Memorial Park, McLean, VA (Board decision, January 23, 2018)

ECAB final decision. The Board set aside OWCP’s September 20, 2016 refusal of merit reconsideration and remanded for an adequately explained decision. The schedule award issue 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 decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

R.B. requested reconsideration of a denied schedule award. OWCP refused merit review without discussing the evidence she submitted or explaining why it failed to meet the reopening rule. The Board found that the decision did not state a clear factual and legal basis. It set the refusal aside and ordered OWCP to issue a proper decision.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126.
• Outcome: September 20, 2016 reconsideration refusal set aside; explanatory decision required.
• Key point: OWCP had to address the submitted evidence and explain why it did or did not warrant review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.B., Appellant
)
) Docket No. 17-0912
and ) Issued: January 23, 2018
)
DEPARTMENT OF THE INTERIOR, GEORGE
)
WASHINGTON MEMORIAL PARK,
)
McLean, VA, 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 March 20, 2017 appellant filed a timely application for review from a September 20, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for reconsideration. The Board docketed the appeal as No. 17-0912.

On July 30, 2011 appellant, then a 30-year-old park ranger, sustained a tibia/fibula fracture of the right leg and ankle when she slipped on a rock next to the Potomac River while trying to remove a visitor from an off-limit location. She stopped work on July 31, 2011. OWCP accepted the claim for closed fracture of the medial malleolus of the right ankle and authorized right ankle surgery which was performed on January 16, 2012. On October 15, 2015 appellant filed a claim for a schedule award (Form CA-7). She did not submit any additional evidence. In a January 14, 2016 decision, OWCP denied appellant’s claim for a schedule award as the evidence of record was insufficient to establish any permanent impairment to a scheduled member or function of the body.

On April 7, 2016 OWCP received an October 27, 2015 report from Richard A. Banton, a physical therapist, who diagnosed bilateral malleolar fractures and referenced a functional capacity evaluation addendum. In an appeal request form received September 12, 2016, appellant requested reconsideration. In a September 20, 2016 decision, OWCP denied further merit review of the claim. It found that her request for reconsideration neither raised substantive legal questions nor included new and relevant evidence.

The Board has duly considered the matter and finds that this case is not in posture for decision. Section 8124(a) of the Federal Employees’ Compensation Act provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation.1 Its regulations also state that the decision shall contain findings of fact and a statement of reasons.2 The reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the claim.3

In its September 20, 2016 decision, OWCP did not discharge its responsibility to provide appellant a statement explaining the disposition so that she could understand the basis for the decision as well as the precise defect. The Board notes that OWCP denied appellant’s September 12, 2016 request for reconsideration because it failed to raise substantive legal questions or include new and relevant evidence, but OWCP failed to provide any discussion of the evidence she submitted in support of her reconsideration request or to explain how the evidence was insufficient to warrant a merit review of her claim.

Accordingly, the case must be returned to OWCP for a proper decision which includes findings of fact and a clear and precise statement regarding appellant’s request for reconsideration of the denial of her claim for a schedule award or why she is not entitled to further reconsideration. Following this and such further development as OWCP deems necessary, it shall issue an appropriate decision.

1
5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).
2
20 C.F.R. § 10.126; see also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket No. 09-0956 (issued April 15, 2010).
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See also Federal (FECA) Procedure Manual, id. at Reconsiderations, Chapter 2.1600.7(b) (October 2011) (if the evidence submitted is not sufficient to require a merit review, OWCP should issue a decision which discusses the evidence submitted, or lack thereof, and explicitly state the basis for the finding of insufficiency).

2
 IT IS HEREBY ORDERED THAT the September 20, 2016 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.4

Issued: January 23, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

4
Colleen Duffy Kiko, Judge, participated in the preparation of this order, but was no longer a member of the Board effective December 11, 2017.

3