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Another Small Step in The Right Direction at ECAB

Daniel M. Goodkin Sept. 1, 2016

We recently received a decision issued by the Employees' Compensation Appeals Board (ECAB) that might signal its willingness to look more carefully and critically at how the Office of Workers' Compen-sation Programs (OWCP) makes decisions in Federal Employees' Compensation Act (FECA) cases.  The decision just sent the case back to OWCP for further action, but it stands for the proposition that OWCP has a duty to develop the record when the employer fails to respond to questions from OWCP about a claim. 

In the case, L.B., guardian of A.V., and U.S.D.O.J, Bureau of Prisons, Docket No. 15-0905 (September 19, 2016), the employee committed suicide in 2012 at the federal prison where he worked, following stressful events he suffered as a prison guard.  In one incident he was cornered in a jail cell by several inmates, one of whom had a home-made knife and who threatened to kill him.  We filed a claim for death benefits on behalf of the deceased employee's minor son.  In a September 2014 decision, OWCP denied the claim because "the specific incident of being cornered by inmates in October 2011 was not verified by any of the evidence received in file."  In fact, OWCP had written to the prison on two occasions about the claim, asking questions about the alleged incident(s), and got no reply to either letter.  So instead of insisting on a reply, OWCP just denied the claim.  The law is clear that, when information relevant to a claim is in possession of the employer, it must produce it in this "non-adversarial" system of workers' compensation.   Question: If you were the employer, and you knew that by simply ignoring OWCP's letters about an injured worker's claim it might just be denied, why would you ever respond?

We then filed an appeal with ECAB.  The appeal brief, written by my partner Daniel Goodkin, reviewed the evidence in support of the claim in detail, including contemporaneous medical evidence mentioning the prison incidents and showing the chain of causation linking the stressful work events and the suicide.

The Board's Decision Reviewed All the Facts in Detail and Re-Stated the Law, Namely that OWCP Must Develop the Record Rather than Just Denying the Claim Under Such Circumstances. 

The Board directed OWCP to "obtain additional information from the employing establishment, including information about the employee's alleged work and incidents or conditions that might have caused him stress prior to his death. ..."  The Board implied, by citing the OWCP Procedure Manual about making a decision when the employer does not respond to questions, that OWCP can accept the statements of the facts relayed to others by the deceased before his death when evaluating "the totality of the evidence".

While the Board did not award benefits, it made the right decision here since the record in this case was not fully developed. Is this a harbinger of good things the Board might do in the future?

NOTE: There is a continuing scandal involving FECA and compounded medications (personalized medications for patients), since these medical expenses have increased tremendously since 2013 and the costs are depleting the Employees' Compensation Fund with little oversight.  More on that later.