R.J. and Department of Veterans Affairs, Veterans Administration Medical Center, Milwaukee, WI (Board decision, February 2, 2012)

ECAB remand decision. The Board set aside the appealed OWCP action and returned the matter for further proceedings. OWCP must combine the three related claim files and reconsider the schedule awards. The remaining compensation question awaits OWCP’s new decision. A party may petition the Board for reconsideration within 30 days unless the order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

R.J. appealed OWCP’s arm schedule awards. The Board found that key medical reports were absent because OWCP had considered several separate claim files without combining them for the appeal. In its February 2, 2012 remand order, it set aside two OWCP decisions and directed OWCP to combine the files and decide the awards anew.

Decision snapshot

• Authority: FECA Procedure Manual, Chapter 2.400.9, on combining related claim files.
• Outcome: November 12 and August 18, 2010 decisions set aside and remanded.
• Key point: OWCP must combine the three related claim files and reconsider the schedule awards.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.J., Appellant
)
)
and ) Docket No. 11-811
) Issued: February 2, 2012
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Milwaukee, WI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

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

On February 11, 2011 appellant filed a timely appeal from August 18 and November 12, 2010 merit decisions of the Office of Workers’ Compensation Programs (OWCP) granting him a schedule award. The Board docketed the appeal as No. 11-811.

The Board finds that the case is not in posture for decision. By decision dated December 15, 2009, OWCP granted appellant a schedule award for a four percent permanent impairment of the left upper extremity. In a decision dated March 29, 2010, it granted appellant’s request for reconsideration and determined that it should issue a new schedule award decision. OWCP discussed his injuries in file numbers xxxxxx676, xxxxxx089 and xxxxxx568. It noted that it had referred all three file numbers to an OWCP medical adviser for review. In another decision dated March 29, 2010, OWCP granted appellant a schedule award for a three percent permanent impairment of the right upper extremity. It further determined that he had no more than the previously awarded four percent permanent left upper extremity impairment. By decisions dated August 18 and November 12, 2010, OWCP denied modification of its schedule award decision.

In reaching its March 29, 2010 schedule award determination, OWCP relied upon a January 21, 2010 report from Dr. Rudolf R. Tecschan, Board-certified in family medicine, and March 3 and 17, 2010 reports from OWCP’s medical adviser. The case record, however, does not contain the reports of Dr. Tecschan or the medical adviser. As discussed, on March 29, 2010 OWCP indicated that it had referred all three file numbers to its medical adviser for review. It thus appears that Dr. Tecschan’s reports and the opinions of the medical adviser were associated with another file number. The absence of this evidence precludes the Board from properly reviewing OWCP’s schedule award determination as it relied upon evidence from other file numbers in reaching its conclusions.

As the case record submitted to the Board would not permit an informed adjudication of the case, the Board finds that the case is not in posture for decision and must be remanded to OWCP. On remand, OWCP should combine the present case record, file number xxxxxx568, with the case records for file numbers xxxxxx089 and xxxxxx676.1 Following this and any further necessary development, OWCP shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the November 12 and August 18, 2010 decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: February 2, 2012
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

1
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.9 (February 2000).

2