B.J. and Department of the Army, Red River Army Depot (Board decision, November 17, 2023)

ECAB remand decision. The Board set aside OWCP's denial of reconsideration and ordered a decision with findings on the submitted evidence; the underlying injury 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

A retired Army depot forklift operator asked OWCP to reconsider an earlier denial of his occupational disease claim. OWCP found the request untimely and said it did not show clear error, but its decision did not address the medical and factual materials he submitted. The Board held that the decision lacked required findings and a clear explanation. It set the decision aside and directed OWCP to issue a proper response to the reconsideration request.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126.
• Outcome: Reconsideration denial set aside; case remanded for a reasoned decision.
• Key point: OWCP had to explain how it evaluated the evidence submitted with the request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.J., Appellant
)
)
and ) Docket No. 23-1002
)
Issued: November 17, 2023
DEPARTMENT OF THE ARMY, RED RIVER )
ARMY DEPOT, Texarkana, TX, Employer )
__________ )

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

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On July 21, 2023 appellant filed a timely appeal from a June 30, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-1002.1

This case has previously been before the Board. 2 The facts and circumstances as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts are as follows.

On December 2, 2013 appellant, then a 48-year-old forklift operator, filed an occupational disease claim (Form CA-2) alleging that he sustained a back injury and a detached retina due to factors of his federal employment including driving over potholes. He noted that he first became

1
The Board notes that, following the June 30, 2023 decision, appellant submitted additional evidence with her appeal to the Board. However, the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 2 Docket No. 14-1028 (issued September 17, 2014); Docket No. 15-795 (issued June 15, 2015); Docket Nos. 16-534 and 15-0795 (issued April 11, 2016). aware of his conditions and realized their relationship to his federal employment on April 11, 2012. Appellant retired from the employing establishment on April 8, 2013.

By decision dated January 31, 2014, OWCP denied appellant’s occupational disease claim, finding that he had not established the implicated factors of his employment; therefore, he had not met the requirements to establish an injury as defined by FECA. On February 21, 2014 appellant requested reconsideration. By decision dated March 18, 2014, OWCP denied reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a). On April 1, 2014 appellant appealed to the Board. By decision dated September 17, 2014, 3 the Board affirmed these decisions. On December 31, 2014 appellant again requested reconsideration before OWCP. By decision dated February 11, 2015, OWCP denied reconsideration of the merits of his claim, pursuant to 5 U.S.C.
§ 8128(a). On February 18, 2015 appellant appealed to the Board. By decision dated June 15, 2015,4 the Board affirmed OWCP’s February 11, 2015 decision. On January 28, 2016 appellant again appealed OWCP’s February 11, 2015 decision. The Board, by order dated April 11, 2016,5 dismissed the appeal in Docket No. 16-0534, finding that OWCP had not issued a final adverse decision since the Board affirmed its February 11, 2015 decision. The Board also dismissed appellant’s petition for reconsideration of its February 11, 2015 decision issued under Docket No. 15-0795, as untimely filed. On February 22, 2022 appellant requested reconsideration. OWCP, by decision dated June 14, 2022, denied his request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

On April 5, 2023 OWCP received an April 3, 2023 letter, wherein appellant requested reconsideration of the June 14, 2022 decision.

In support of his reconsideration request, appellant submitted additional evidence. In a December 21, 2014 letter, Dr. Roshan Sharma, a Board-certified physiatrist, noted appellant’s significant cervical and lumbar spine, eye conditions, and physical restrictions, and opined that appellant was permanently totally disabled from work due to his conditions and restrictions. In a March 25, 2023 prescription, he ordered appellant to medically retire from work.

In a June 15, 2018 report, Dr. Solomon C. Mogbo, an internist, provided range of motion measurements for the elbows, shoulders, hands, wrists, knees, hips, ankles, and feet, and findings on testing of deep tendon reflexes. On February 7, 2023 he reported appellant’s vital signs and active conditions, including blind left eye, and current medications.

An October 26, 2020 letter by Caitlin McVoy, an audiologist, noted a history that appellant first noted hearing difficulty after a work incident that caused multiple injuries, and diagnosed left ear hearing loss that was made in her office in April 2019, and indicated that a hearing aid was prescribed at that time. She explained that a hearing aid was prescribed due to a moderate sensorineural hearing loss in his left ear.

3
Docket No. 14-1028 (issued September 17, 2014).
4
Docket No. 15-795 (issued June 15, 2015).
5
Docket Nos. 16-534 and 15-0795 (issued April 11, 2016).

2
A November 14, 2022 progress note by Dr. Marco H. Ji, an ophthalmologist, provided assessments of open-angle glaucoma suspect; secondary glaucoma due to combination mechanisms, left, indeterminate stage; retinal detachment, old, total/subtotal, left; and neurotrophic keratopathy, left eye.

A January 31, 2023 after visit summary from Jones Eye Clinic provided diagnoses of vitreous detachment, right; floater vitreous, right; changes in vision; primary hypertension; and retinal detachment, old, total/subtotal, left.

A Notification of Personnel Action (Standard Form (SF) 50-B) dated April 11, 2013, indicated that appellant resigned from the employing establishment due to medical reasons, effective April 8, 2013.

In letters dated October 28, 2013, the Office of Personnel Management informed appellant that his application for disability retirement had been approved because he was found to be disabled from his forklift operator position due to thoracic spine degenerative disc disease and total retinal detachment of the left eye.

By decision dated June 30, 2023, OWCP denied appellant’s April 5, 2023 request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted, “We reviewed [appellant’s] statement dated [April 3, 2023] which includes statements of your employment history and your experience filing a claim. However, the statement does not include any clear explanation or argument of how the [June 15, 2015] decision was in error.”

The Board, having duly considered the matter, finds that this case is not in posture for decision.

Section 8124(a) of the Federal Employees’ Compensation Act6 (FECA) and section 10.126 of the implementing regulations 7 require that final decisions of OWCP contain findings of fact and a statement of reasons. The Board has held that the reasoning behind OWCP’s 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. 8 The Board finds that OWCP’s June 30, 2023 decision is incomplete as it did not make any findings regarding the medical and factual evidence appellant submitted.9 Because the June 30, 2023 decision does not fully explain the basis for the denial of his request for reconsideration or the findings of fact reached therein, the Board finds that OWCP has not

6
5 U.S.C. § 8124.
7
20 C.F.R. § 10.126.
8
Order Remanding Case, L.R., Docket No. 15-0235 (issued December 21, 2015); Patrick Michael Duffy, 43 ECAB 280 (1991); Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013). 9 See Order Remanding Case, R.S., Docket No. 23-0038 (issued June 15, 2023); Order Remanding Case, L.G., Docket No. 23-0282 (issued May 26, 2023); Order Remanding Case, S.G., Docket No. 22-1136 (issued January 17, 2023).

3 fulfilled its responsibility under section 8124 of FECA and section 10.126 of its implementing regulations.10

Accordingly, the case must be remanded to OWCP for a proper decision which includes findings of fact, and a clear and precise statement regarding appellant’s April 5, 2023 request for reconsideration. 11 Following further development as OWCP deems necessary, it shall issue an appropriate decision.12 Accordingly,

IT IS HEREBY ORDERED THAT the June 30, 2023 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 17, 2023
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10
Order Remanding Case, P.W., Docket No. 21-1101 (issued March 30, 2023); Order Remanding Case, X.F., Docket No. 22-0045 (issued April 14, 2023).
11
See supra note 8.
12
The record reveals that OWCP notified appellant on April 23, 2018 that it would combine the current file, OWCP File No. xxxxxx519, with OWCP File No. xxxxxx252. However, the Board notes that this has not been done.

4