D.H. and Department of Homeland Security, Transportation Security Administration, New York City, NY (Board decision, June 11, 2018)

ECAB remand decision. The Board set aside OWCP’s September 5, 2017 decision and remanded D.H.’s claim for a readable surveillance recording and a new decision; the 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.H., a TSA officer, said he injured his shoulder and back lifting bins. OWCP rescinded its earlier acceptance after relying on a surveillance disc. On a third appeal, the Board again found that the disc sent with the record was unreadable and differed from the disc identified by the employer. Because OWCP relied on the recording, the Board ordered a readable copy, any needed reconstruction of the record, and a new decision.

Decision snapshot

• Authority: Prior Board remand orders in Dockets 14-244 and 15-1863.
• Outcome: September 5, 2017 rescission decision set aside; case remanded.
• Key point: The Board could not review evidence central to OWCP’s rescission because the disc was unreadable.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and
)
) Docket No. 18-0121
DEPARTMENT OF HOMELAND SECURITY, ) Issued: June 11, 2018
TRANSPORTATION SECURITY
)
ADMINISTRATION, New York City, NY,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

On October 23, 2017 appellant, through counsel, filed a timely appeal from a September 5, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 18-0121.2

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 September 22, 2012 appellant, then a 49-year-old transportation security officer, filed a traumatic injury claim alleging that at 11:30 a.m. on September 18, 2012 he sprained a trapezoid muscle lifting a stack of bins. On the claim form an employing establishment supervisor indicated that a surveillance video was reviewed covering the time period 10:00 a.m. to 12:30 p.m. on the day in question, and that the injury described was not seen. Appellant left work at 12:30 p.m. On November 7, 2012 OWCP accepted that on September 18, 2012 appellant sustained sprain of the back, thoracic region, and sprain of shoulder and upper arm, rotator cuff. In a June 3, 2013 decision, that incorporated an April 8, 2013 notice of proposed rescission, OWCP rescinded acceptance of appellant’s claim, based on evidence submitted by the employing establishment. This included the surveillance DVD that it had reviewed. Following a July 16, 2013 hearing, by decision dated September 30, 2013, an OWCP hearing representative affirmed the June 3, 2013 decision. The hearing representative also affirmed a March 18, 2013 decision denying three recurrence claims. This case has previously been before the Board. In a July 10, 2014 order, the Board found the case not in posture for decision because the record submitted included a DVD purported to cover appellant’s work area from 10:00 a.m. to 12:30 p.m. on September 18, 2012, the date of injury. The DVD forwarded to the Board with the case record was not readable.3 The Board found that, in light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of the claim,4 the case was not in posture for decision as the record before the Board was incomplete. The Board remanded the case to OWCP to furnish a readable DVD and for further reconstruction and assemblage deemed necessary, to be followed by an appropriate de novo decision.5

Following remand, on August 13, 2014 OWCP asked the employing establishment to provide a readable DVD. In an August 21, 2014 decision, it rescinded acceptance of appellant’s claim. Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings and Review. A hearing was held on March 17, 2015. On June 3, 2015, an OWCP hearing representative affirmed the August 21, 2014 decision, and appellant thereafter appealed to the Board. By order dated January 20, 2016, the Board again found the case not in posture for decision and remanded the case to OWCP because the DVD provided was not readable. The Board noted that the DVD was examined by the Board’s technical staff who found it to be unreadable. The Board also indicated that it appeared that OWCP had received two DVDs, one in 2013 and one in 2015, and it was unclear which had been forwarded to the Board. Upon remand OWCP was to obtain a readable DVD, to be followed by an appropriate de novo decision.6

Following remand, on March 14, 2016 OWCP asked the employing establishment to forward the surveillance DVD. In a July 8, 2016 decision, OWCP rescinded acceptance of appellant’s claim. OWCP noted that it had reviewed a clear copy of a surveillance DVD covering 10:00 a.m. to 12:30 p.m. on September 18, 2012 which did not demonstrate the truthfulness of appellant’s claim and did not support that an injury occurred as claimed. Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings and Review, that was held on March 15, 2017. On June 20, 2017 the employing establishment forwarded another surveillance DVD to OWCP. The transmittal documents included a photograph of the DVD that was forwarded which identified it as a Maxell DVD that had appellant’s name and OWCP file number affixed. By decision dated September 5, 2017, an OWCP hearing representative affirmed the July 8, 2016 decision. He noted his review of a surveillance DVD, indicating that it cast significant doubt that appellant experienced a work-related injury at the time, place, and in the manner alleged, and that the medical evidence submitted was insufficient to establish a medical condition caused by the claimed September 18, 2012 injury.

The Board again finds the case not in posture for decision because the record submitted to the Board continues to be incomplete. The DVD provided to the Board was examined by the Board’s technical staff who found it to be unreadable. The Board notes that the DVD furnished with appellant’s case record is a TDK DVD, and not a Maxell DVD, as was identified by the employing establishment with its June 20, 2017 transmittal. The Board’s technical staff indicated that the TDK DVD appeared to contain only an application file to be used to view content. There

3
The Board’s technical staff reviewed the DVD and found it to be encrypted and unreadable.
4
Supra note 2.
5
Docket No. 14-244 (issued July 10, 2014).
6
Docket No. 15-1863 (issued January 20, 2016).

2 was no content found on the DVD. In light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of this claim,7 the Board finds this case is not in posture for decision. The Board, therefore, will again remand the case to OWCP to furnish a readable DVD. After securing a readable DVD and for further reconstruction and assemblage deemed necessary, OWCP shall issue an appropriate de novo decision.

IT IS HEREBY ORDERED THAT the September 5, 2017 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: June 11, 2018
Washington, DC

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

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

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

7
Supra note 1.

3