T.S. and Department of Transportation, Federal Highway Administration, Nashville, TN (Board decision, January 29, 2024)

ECAB remand decision. The Board set aside OWCP’s June 21, 2023 denial of reconsideration because OWCP did not explain how it evaluated the worker’s new medical evidence under the clear error standard. OWCP must make findings of fact, state its reasons, and issue a new decision on the reconsideration request; the Board did not decide the underlying injury claim. 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

A federal highway engineer sought compensation for neck and arm conditions he attributed to repeated typing and packing. OWCP denied the claim, and he later sought reconsideration with additional test and surgery records. OWCP called the request late and stated only that he had not shown clear evidence of error. The Board held that OWCP had not explained whether or how it evaluated the new records. It set aside the denial and sent the reconsideration request back for a reasoned decision.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. §§ 10.126, 10.607.
• Outcome: June 21, 2023 reconsideration denial set aside; case remanded for findings and a new decision.
• Key point: A conclusory denial did not explain whether the new medical evidence showed clear error in OWCP’s earlier decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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T.S., Appellant
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)
and ) Docket No. 23-0931
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Issued: January 29, 2024
DEPARTMENT OF TRANSPORTATION,
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FEDERAL HIGHWAY ADMINISTRATION,
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Nashville, TN, Employer
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__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On June 26, 2023 appellant filed a timely appeal from a June 21, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-0931.

On December 3, 2021 appellant, then a 46-year-old civil engineer, filed an occupational disease claim (Form CA-2) alleging that he developed neck and bilateral upper extremity and hand injuries due to factors of his federal employment, including repetitive typing and packing. He noted that he first became aware of his condition on November 12, 2021 and its relationship to his federal employment on December 3, 2021. Appellant did not stop work.

In support of his claim, appellant submitted various statements and a November 2, 2021 report of electromyography and nerve conduction velocity (EMG/NCV) study of the left upper extremity, which revealed carpal tunnel syndrome (CTS) on the left.

By decision dated January 13, 2022, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish a causal relationship between the accepted employment factors and his diagnosed medical conditions.
OWCP thereafter received a January 26, 2022 report of EMG/NCV of the bilateral lower extremities, which was read as normal. It also received an October 24, 2022 operative report by Dr. Donald H. Lee, a Board-certified orthopedic hand surgeon, who performed a right-sided carpal tunnel release.

On April 16, 2023 appellant requested reconsideration of OWCP’s January 13, 2022 decision.

By decision dated June 21, 2023, OWCP denied appellant’s request for reconsideration of the merits of his claim, finding that it was untimely filed, and failed to demonstrate clear evidence of error.

The Board finds that this case is not in posture for decision.

OWCP summarily denied appellant’s request for reconsideration without complying with the review requirements of FECA and its implementing regulations. 1 Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation.2 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a statement of reasons. 3 As well, OWCP’s procedures provide that the reasoning behind its evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it. 4

In support of his request for reconsideration, appellant submitted a January 26, 2022 report of EMG/NCV and an October 24, 2022 operative report from Dr. Lee. In denying his reconsideration request, OWCP failed to analyze whether this evidence was sufficient to demonstrate clear evidence of error. The June 21, 2023 decision simply noted: “You did not present clear evidence of error.” OWCP did not address the evidence submitted in support of appellant’s reconsideration request.5

The Board finds that OWCP failed to properly explain the findings with respect to the issue presented so that appellant could understand the basis for the decision, i.e., whether he had demonstrated clear evidence that OWCP’s last merit decision was incorrect. 6 The Board will, therefore, set aside OWCP’s June 21, 2023 decision and remand the case for findings of fact and

1
D.R., Docket No. 21-1229 (issued July 6, 2022); M.D., Docket No. 20-0868 (issued April 28, 2021); T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607. 2 5 U.S.C. § 8124(a).
3
20 C.F.R. § 10.126.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).
5
Order Remanding Case, P.W., Docket No. 21-1101 (issued March 30, 2023); M.D., Docket No. 20-0868 (issued April 28, 2021); see also Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016). 6 OWCP’s regulations and procedures provide that OWCP will reopen a claimant ’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimants request demonstrates clear evidence of error on the part of OWCP. Supra note 4 at Chapter 2.1602.5(a) (September 2020).

2 a statement of reasons, to be followed by an appropriate decision regarding appellant’s reconsideration request. 7 Accordingly,

IT IS HEREBY ORDERED THAT the June 21, 2023 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: January 29, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

7
See Order Remanding Case, D.R., supra note 1; T.P., supra note 1; see also id. at § 10.607.

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