D.S. and Department of Veterans Affairs, Veterans Health Administration, Atlanta Veterans Affairs Medical Center, Decatur GA (Board decision, November 10, 2020)

ECAB remand decision. The Board set aside OWCP’s nonmerit reconsideration denial and returned the claim for review of evidence; the underlying claim remained unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

D.S., a medical technician, claimed an emotional condition related to her federal employment. After OWCP denied the claim, she sought reconsideration and submitted additional documents, including a witness statement and material about an investigation. OWCP’s nonmerit denial discussed only her statement and counsel’s letter. The Board set aside that denial because OWCP had not addressed all evidence received before its decision, and remanded for an appropriate decision.

Decision snapshot

• Authority: OWCP must consider all properly submitted evidence before issuing its decision.
• Outcome: OWCP’s November 6, 2019 nonmerit decision set aside and remanded.
• Key point: The Board required OWCP to address the omitted evidence; it did not decide whether the claimed condition was compensable.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.S., Appellant
)
)
and ) Docket No. 20-0589
) Issued: November 10, 2020
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
ATLANTA VETERANS AFFAIRS MEDICAL
)
CENTER, Decatur GA, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On January 22, 2020 appellant, through counsel, filed a timely appeal from a November 6, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 20-0589.

On March 30, 2018 appellant, then a 63-year-old medical technician, filed an occupational disease claim (Form CA-2) alleging that she sustained stress, extreme anxiety, a mental disorder, and triggered an aggravation of preexisting post-traumatic stress disorder (PTSD), due to factors of her federal employment. She explained that job-related stress triggered her PTSD regarding sexual harassment she had experienced in 2008 at the employing establishment. Appellant indicated that she first became aware of her conditions on December 30, 2017 and realized that they were caused or aggravated by factors of her employment on January 10, 2018. On the reverse 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.

side of the claim form, the employing establishment indicated that she stopped work on February 1, 2018.

In an April 24, 2018 development letter, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested evidence.

In a separate April 24, 2018 development letter to the employing establishment, OWCP requested additional information about appellant’s claim. It afforded the employing establishment 30 days to submit the requested evidence.

By decision dated August 16, 2018, OWCP denied appellant’s emotional condition claim, finding that the evidence of record was insufficient to establish a compensable employment factor.

Appellant thereafter contacted OWCP on August 20, 2018 and advised that her medical provider would release her medical records and she disputed an investigative report of January 10, 2018.

On August 13, 2019 appellant, through counsel, requested reconsideration. Counsel submitted a letter brief in which he argued that appellant had established a compensable factor of employment related to stress from the performance of her employment duties.

Appellant subsequently submitted additional evidence, including a September 27, 2017 witness statement from L.O., an employee at the employing establishment, a July 3, 2018 letter from the Georgia Board of Nursing to appellant regarding an investigation, and documentation related to appellant’s alleged forged signature.

By decision dated November 6, 2019, OWCP denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It related that the evidence it reviewed in support of reconsideration included an August 13, 2019 reconsideration letter from appellant’s counsel and appellant’s August 20, 2018 statement.

The Board has duly considered the matter and finds that the case is not in posture for a decision. In the case of William A. Couch,2 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.

In its November 6, 2019 decision, OWCP indicated only that the evidence reviewed in support of appellant’s reconsideration request included an August 13, 2019 reconsideration letter from her counsel and appellant’s August 20, 2018 statement. However, appellant also submitted a September 27, 2017 witness statement from L.O., an employee at the employing establishment, a July 3, 2018 letter from the Georgia Board of Nursing to appellant regarding an investigation, and documentation related to appellant’s alleged forged signature.

2
41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

2

It is crucial that OWCP addresses all relevant evidence received prior to the issuance of its final decision, as the Board’s decisions are final with regard to the subject matter appealed.3 The Board finds that this case is not in posture for decision, as OWCP did not address the above-noted evidence in its November 6, 2019 decision.4 On remand, following any further development as deemed necessary, OWCP shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the November 6, 2019 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: November 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

3
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, id.
4
See V.C., Docket No. 16-0694 (issued August 19, 2016).

3