United States Department of Labor

Employees’ Compensation Appeals Board

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D.F., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Fort Myers, FL, Employer

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Docket No. 17-2027

Issued: September 13, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On September 29, 2017 appellant filed a timely appeal from a June 28, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed this 

appeal as No. 17-2027. 

By decision dated November 10, 2015, OWCP terminated appellant’s wage-loss 

compensation effective November 15, 2015. Appellant requested an oral hearing with OWCP’s 

Branch of Hearings and Review and in an August 26, 2016 decision, OWCP’s hearing 

representative directed OWCP to obtain a current position description from the employing 

establishment with physical requirements and to compare the physical requirements of the current 

position description to the restrictions of appellant’s treating physician to determine whether 

appellant had established disability for work on or after November 5, 2015. OWCP did not fully 

comply with these directives prior to issuing its December 14, 2016 merit decision. Appellant 

requested reconsideration of the December 14, 2016 decision on June 12, 2017. By decision dated 

June 28, 2017, OWCP denied appellant’s request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C. § 8128(a). Appellant appealed the June 28, 2017 decision to the Board.

The Board finds that as OWCP did not follow the August 26, 2016 directives of the hearing 

representative, the case was not in posture for a merit decision on the issue of whether appellant 

had established disability for work on or after November 5, 2015. As the December 14, 2016 merit 
2

decision remains in an interlocutory posture, the June 28, 2017 non-merit decision is also in an 

interlocutory posture. Thus, this case is not in posture for a decision by the Board.1 On return of 

the case record, OWCP should comply with the order of the hearing representative. Following 

this and such other development as deemed necessary, OWCP shall issue an appropriate merit 

decision on the claim.

IT IS HEREBY ORDERED THAT the June 28, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board.

Issued: September 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

1 Because OWCP has not appropriately developed the issue of whether appellant was capable of working full duty 

as directed by its hearing representative prior to issuing its December 14, 2016 merit decision that matter is in an 

interlocutory posture. See 20 C.F.R. § 501.2(c)(2) which provides, “The Board has jurisdiction to consider and decide 

appeals from final decisions of OWCP in any case arising under FECA. The Board may review all relevant questions 

of law, fact, and exercises of discretion (or failure to exercise discretion) in such cases.... There will be no appeal 

with respect to any interlocutory matter decided (or not decided) by OWCP during the pendency of a case.” See also

C.D., Docket No. 17-1357 (issued May 4, 2018).