D.F. and Department of Transportation, Federal Aviation Administration, Fort Myers, FL (Board decision, September 13, 2018)

ECAB remand decision. The Board set aside OWCP’s decision and remanded for further proceedings. The underlying disability claim 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

D.F. appealed OWCP’s refusal to reconsider a disability claim. An earlier hearing representative had directed OWCP to obtain a current job description and compare its physical demands with D.F.’s restrictions, but OWCP did not fully comply before issuing its merit decision. The Board found that the merits and later nonmerit ruling remained in an interlocutory posture. It set aside the June 28, 2017 decision and remanded for the ordered development and a new merit decision.

Decision snapshot

• Authority: 20 C.F.R. § 501.2(c)(2).
• Outcome: June 28, 2017 nonmerit decision set aside and case remanded.
• Key point: OWCP had to complete the hearing representative’s development instructions before deciding disability.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.F., Appellant
)
)
and ) Docket No. 17-2027
) Issued: September 13, 2018
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
Fort Myers, FL, 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
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 29, 2017 appellant filed a timely appeal from a June 28, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed this appeal as No. 17-2027.

By decision dated November 10, 2015, OWCP terminated appellant’s wage-loss compensation effective November 15, 2015. Appellant requested an oral hearing with OWCP’s Branch of Hearings and Review and in an August 26, 2016 decision, OWCP’s hearing representative directed OWCP to obtain a current position description from the employing establishment with physical requirements and to compare the physical requirements of the current position description to the restrictions of appellant’s treating physician to determine whether appellant had established disability for work on or after November 5, 2015. OWCP did not fully comply with these directives prior to issuing its December 14, 2016 merit decision. Appellant requested reconsideration of the December 14, 2016 decision on June 12, 2017. By decision dated June 28, 2017, OWCP denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). Appellant appealed the June 28, 2017 decision to the Board.

The Board finds that as OWCP did not follow the August 26, 2016 directives of the hearing representative, the case was not in posture for a merit decision on the issue of whether appellant had established disability for work on or after November 5, 2015. As the December 14, 2016 merit decision remains in an interlocutory posture, the June 28, 2017 non-merit decision is also in an interlocutory posture. Thus, this case is not in posture for a decision by the Board.1 On return of the case record, OWCP should comply with the order of the hearing representative. Following this and such other development as deemed necessary, OWCP shall issue an appropriate merit decision on the claim.

IT IS HEREBY ORDERED THAT the June 28, 2017 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further action consistent with this decision of the Board.

Issued: September 13, 2018
Washington, DC

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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

1
Because OWCP has not appropriately developed the issue of whether appellant was capable of working full duty as directed by its hearing representative prior to issuing its December 14, 2016 merit decision that matter is in an interlocutory posture. See 20 C.F.R. § 501.2(c)(2) which provides, “The Board has jurisdiction to consider and decide appeals from final decisions of OWCP in any case arising under FECA. The Board may review all relevant questions of law, fact, and exercises of discretion (or failure to exercise discretion) in such cases…. There will be no appeal with respect to any interlocutory matter decided (or not decided) by OWCP during the pendency of a case.” See also C.D., Docket No. 17-1357 (issued May 4, 2018).

2