United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, New York City, NY, 

Employer 

__________________________________________ 

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Docket No. 15-1863 

Issued: January 20, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On September 15, 2015 appellant, through counsel, filed a timely appeal from a June 3, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal 

was docketed as No. 15-1863.1

This case has previously been before the Board. In a July 10, 2014 order, the Board 

found the case not in posture for decision because the record submitted included a DVD 

purported to cover appellant’s work area from 10:00 a.m. to 12:30 p.m. on September 18, 2012, 

 1

 On September 22, 2012 appellant, a transportation security officer, filed a traumatic injury claim alleging that at 

11:30 a.m. on September 18, 2012 he sprained a trapezoid muscle lifting a stack of bins. On the claim form an 

employing establishment supervisor indicated that a surveillance video was reviewed covering the time period 10:00 

a.m. to 12:30 p.m. on the day in question, and that the injury described was not seen. Appellant left work at 12:30 

p.m. On November 7, 2012 OWCP accepted that on September 18, 2012 he sustained sprain of the back, thoracic 

region, and sprain of shoulder and upper arm, rotator cuff. In a June 3, 2013 decision, that incorporated an April 8, 

2013 notice of proposed rescission, OWCP rescinded acceptance of appellant’s claim, based on evidence submitted 

by the employing establishment. This included a surveillance digital video disc (DVD) that it had reviewed. 

Following a July 16, 2013 hearing, by decision dated September 30, 2013, an OWCP hearing representative 

affirmed the June 13, 2013 decision. She also affirmed a March 18, 2013 decision denying three recurrence claims. 
2

the date of injury. The DVD forwarded to the Board with the case record was not readable.2

 

The Board found that, in light of OWCP’s reliance on the surveillance DVD as evidence to 

rescind acceptance of the claim,3

 the case was not in posture for decision as the record before the 

Board was incomplete. The Board remanded the case to OWCP to furnish a readable DVD and 

for further reconstruction and assemblage deemed necessary, to be followed by an appropriate de 

novo decision.4

Following remand, on August 13, 2014 OWCP asked the employing establishment to 

provide a readable DVD. In an August 21, 2014 decision, it rescinded acceptance of appellant’s 

claim. Appellant, through counsel, timely requested a hearing. On March 9 and 17, 2015 

OWCP telephoned the employing establishment requesting that it forward a readable copy of the 

DVD. A hearing was held on March 17, 2015. OWCP indicated that it had received a readable 

DVD on March 31, 2015. On June 3, 2015 an OWCP hearing representative affirmed the 

August 21, 2014 decision. 

The Board again finds the case not in posture for decision because the record submitted 

to the Board is again incomplete. The DVD provided to the Board is not readable. It was again 

examined by the Board’s technical staff who found it to be unreadable. The Board notes that 

documentation in the case record accompanying the DVD indicates that the evidence was 

received on March 19, 2013. As noted above, a readable DVD was provided to OWCP in 

March 2015. It is therefore unclear if the DVD in the case record before the Board at this time is 

the original DVD forwarded to OWCP in 2013 or a second DVD forwarded in 2015 and found 

readable by OWCP. 

In light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance 

of this claim,5

 the Board finds this case is not in posture for decision. The Board, therefore, will 

again remand the case to OWCP to furnish a readable DVD6 and for further reconstruction and 

assemblage deemed necessary, to be followed by an appropriate de novo decision. 

 2

 The Board’s technical staff reviewed the DVD and found it to be encrypted and unreadable. 

3 Supra note 1. 

4

 Docket No. 14-244 (issued July 10, 2014). 

5 Supra note 1. 

6

 Based on advice from of technical staff, the Board suggests that the DVD be in AVI or MPEG format. 
3

IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’ 

Compensation Programs is set aside and the case remanded to OWCP for further proceedings 

consistent with this order of the Board. 

Issued: January 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board