O.W. and U.S. Postal Service, Urbana Post Office (Board decision, February 8, 2024)

ECAB remand decision. The Board set aside the denial and ordered the full evidence-response period. The underlying 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 postal janitor with an accepted back injury was asked to submit additional evidence for a later claim. OWCP’s development letter did not provide the 60 days required by the updated regulation. The Board set aside the denial and directed OWCP to give him the full response period before deciding again.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Claim denial set aside and remanded.
• Key point: OWCP had to allow 60 days for requested evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
O.W., Appellant
)
)
and ) Docket No. 24-0005
) Issued: February 8, 2024
U.S. POSTAL SERVICE, POST OFFICE,
)
Urbana, IL, Employer
)
__________ )

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 October 4, 2023 appellant filed a timely appeal from an August 10, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 24-0005.

This case has previously been before the Board on different issue s.1 The facts and circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth below.

On March 2, 1993 appellant, then a 32-year-old janitor, filed a traumatic injury claim (Form CA-1) alleging that on February 25, 1993 he injured his back when he fell when carrying a 50-pound bag of salt while in the performance of duty. OWCP accepted the claim for low back strain, an aggravation of preexisting spinal stenosis at L3 -4 and L4-5, and an aggravation of degenerative disc disease at L5-S1. In June 1995 appellant underwent a lumbar laminectomy at L3-4, L4-5, and L5-S1 and a discectomy at L5-S1. Appellant worked intermittently from July 1993 through 1997 when he stopped and did not return. OWCP paid him wage -loss compensation for total disability beginning January 19, 1994. By decision dated December 1, 2016, OWCP terminated appellant’s wage-loss compensation and medical benefits effective that

1
Docket No. 20-1343 (issued August 16, 2022); Docket No. 19-0316 (issued June 25, 2019); Docket No. 17-1881 (issued May 1, 2018); Docket No. 06-1607 (issued February 2, 2007). date. By decision dated May 1, 2018, the Board affirmed this termination. 2 Appellant continued to claim ongoing disability and medical residuals. By decision dated August 16, 2022, the Board found that appellant had not met his burden of proof to establish continuing disability or residuals on or after December 1, 2016 causally related to his accepted February 25, 1993 employment injury. 3

On July 4, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award.

In support of this claim, appellant provided documentation from the Veterans Administration listing his service-connected disability compensation and disabilities as bilateral carpal tunnel syndrome, major depression, hypertension, and low back pain.

In a July 10, 2023 development letter, OWCP requested that appellant submit an impairment calculation addressing whether he had reached maximum medical improvement (MMI) and to provide an impairment rating using the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It indicated that, to date, no medical evidence had been received in support of his claim for a schedule award. OWCP advised that, if appellant’s physician was unable or unwilling to provide the required report, to notify it in writing and, if his case met the essential elements for a schedule award claim, he would be scheduled to be seen by a second opinion specialist. It afforded him 30 days to submit the necessary medical evidence.

By decision dated August 10, 2023, OWCP denied appellant’s schedule award claim.

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

Section 10.121 of OWCP’s regulations previously provided that if a claimant submits factual evidence, medical evidence, or both in support of his or her claim, but OWCP determines that this evidence is not sufficient to meet the burden of proof, it will inform the claimant of the additional evidence needed and provide the claimant at least 30 days to submit the evidence required.5 Effective March 7, 2023, OWCP amended the minimum amount of time allowed to claimants to submit the evidence required in accordance with 20 C.F.R. § 10.121 from 30 days to 60 days.6 It is well established that proceedings under the Federal Employees’ Compensation Act7 (FECA) are not adversarial in nature. OWCP shares responsibility in the development of

2
Id.
3
Id.
4
A.M.A., Guides 6 th ed (2009).
5
20 C.F.R. § 10.121.
6
Id. Effective March 7, 2023, 20 C.F.R. § 10.121 was amended to allow a claimant 60 days, increased from the prior 30-day period, to submit supporting evidence on an initial claim. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.0800.4c(2) (November 2023). 7 5 U.S.C. § 8101 et seq.

2 the evidence and has an obligation to see that justice is done. 8 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations at section 10.121. 9

Since OWCP, in its July 10, 2023 development letter, did not afford appellant 60 days within which to submit the requested evidence, the Board finds that it did not fulfill its responsibility under section 10.121 of its regulations. 10

Thus, the Board finds that this case must be remanded for proper application of section 10.121 of OWCP’s regulations, allowing appellant 60 days to respond to the request for additional evidence, to be followed by a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the August 10, 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: February 8, 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

8
D.L., Docket No. 20-1299 (issued May 5, 2022); J.H., Docket No. 19-1476 (issued March 23, 20201); H.T., Docket No. 18-0979 (issued February 4, 2019); John J. Carlone, 41 ECAB 354, 358-60 (1989). 9 Supra note 5 and 6; D.L., id.
10
Supra note 5 and 6.

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