L.A. and Department of Homeland Security, Transportation Security Administration, Chicago O’Hare Airport, Chicago, IL (Board decision, May 25, 2011)

ECAB final decision. The Board set aside OWCP’s June 10, 2010 knee injury denial and remanded for consideration of an omitted medical report. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

L.A., a transportation security officer, said she injured her knee after tripping on a rug at work. The work incident was accepted, but OWCP denied the claimed injury. On reconsideration she submitted an orthopedic surgeon’s report describing a knee sprain and aggravation of existing arthritis. OWCP did not address that report before denying modification. The Board returned the claim for review of all timely submitted evidence and a new decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act claim review, 5 U.S.C. § 8101 et seq.
• Outcome: June 10, 2010 denial set aside; knee injury claim remanded for a new decision.
• Key point: OWCP must consider a medical report received before it decides a claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.A., Appellant
)
)
and ) Docket No. 10-1872
) Issued: May 25, 2011
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORATION SAFETY
)
ADMINSTRATION, CHICAGO O’HARE
)
AIRPORT, Chicago, IL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 8, 2010 appellant, through counsel, filed a timely appeal from the June 10, 2010 decision of the Office of Workers’ Compensation Programs. By that decision, the Office denied her claim for an employment-related traumatic injury sustained in the performance of duty on November 27, 2008, as alleged.

The Board has duly considered the matter and notes that by decision dated August 28, 2009 the hearing representative modified the Office’s March 19, 2009 decision and found that the incident occurred as reported by appellant.1 However, she denied appellant’s claim because appellant did not submit sufficient medical evidence diagnosing that a condition resulted from the accepted incident.

By letter dated December 6, 2009, appellant, through her attorney, requested reconsideration. In support of the reconsideration request, she submitted reports detailing her

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Appellant, then a 49-year-old transportation security officer (screener), alleged that she sustained a pulled tendon in her knee on November 27, 2008 when she tripped on a taped down rug while rotating from the x-ray machine to a mat. treatment prior to the November 27, 2008 employment incident including a July 11, 2007 note from Dr. George Branovacki, a Board-certified orthopedic surgeon; and progress notes dated January 7 and August 11, 2008 by Dr. Beverlee A. Brisbin, a physician Board-certified in family practice with a subspecialty of sports medicine. Appellant also submitted a report dated November 13, 2009 wherein Dr. Nasim A. Rana, a Board-certified orthopedic surgeon, stated that he first saw appellant on December 10, 2008 in regards to her right knee pain, that at that time she was known to have arthritis of the knees but that she was able to work until she tripped over a rubber mat and aggravated her pain in the knee which already had arthritis. Dr. Rana noted that consequently appellant was not able to work when he saw her and that she had significant pain in the knee with advanced osteoarthritic changes. He indicated that he told her that nothing short of a total knee replacement was going to be helpful, and she underwent this surgery on December 17, 2008, and made good gradual recovery. Dr. Rana stated that the injury of November 27, 2008 was strain or sprain of the knee on top of her previously known osteoarthritis. He noted that the employment injury aggravated her pains and expedited her surgery. By decision dated June 10, 2010, the Office denied modification of its prior decisions. In reviewing the case on the merits, it listed and discussed every piece of evidence appellant submitted on reconsideration, noted above, with the exception of Dr. Rana’s November 13, 2009 report.

In the case of William A. Couch2 the Board held that, when adjudicating a claim, the Office is obligated to consider all evidence properly submitted by appellant and received by the Office before the final decision is issued. As the Office failed to consider Dr. Rana’s November 13, 2009 report, it did not consider all of the medical evidence of record prior to making its decision on June 10, 2010. Accordingly, the case will be remanded to the Office to enable it to properly consider all the evidence submitted at the time of its decision. Following this and any other development deemed necessary, the Office shall issue a de novo decision on appellant’s claim.

2
41 ECAB 548 (1990). See also Linda Johnson, 45 ECAB 439 (1994) (applying Couch in a situation where the Office did not consider evidence received on the date of its decision).

2
 IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 10, 2010 is set aside and the case is remanded for further action consistent with this order of the Board.

Issued: May 25, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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