B.B. and Department of Energy, Vancouver, WA (Board decision, November 13, 2012)

ECAB remand decision. The Board set aside OWCP's November 3 and December 1, 2011 decisions because it had overlooked B.B.'s timely medical addendum. The underlying claim remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this 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

B.B. submitted a physician's addendum linking his condition to a work incident before OWCP ruled on his claim. OWCP's decisions listed other evidence but did not acknowledge or address that addendum. The Board held that OWCP must consider evidence received before its decision. It returned the claim for review of the report and a new ruling.

Decision snapshot

• Authority: FECA claim adjudication, 5 U.S.C. § 8101 et seq.
• Outcome: November 3 and December 1, 2011 decisions set aside; remanded to consider the addendum.
• Key point: A timely submitted report had to be considered before OWCP decided the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.B., Appellant
)
)
and ) Docket No. 12-657
) Issued: November 13, 2012
DEPARTMENT OF ENERGY, Vancouver, WA,
)
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
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 30, 2012 appellant timely filed an application for review of a nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) dated December 1, 2011 that denied his request for merit review, and a November 3, 2011 merit decision which denied his claim of compensation.

The Board has duly considered the matter and finds that the case is not in posture for decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued.

Following OWCP’s September 20, 2011 merit decision, appellant filed a request for reconsideration on October 24, 2011 and submitted evidence. This evidence included an October 6, 2011 addendum to a July 27, 2011 medical report issued by Dr. Daniel Randolph, a physician, in which he specifically attributed appellant’s physical condition to his work incident. He asserted that appellant’s physical examination findings demonstrated a symptom complex that required further evaluation. Dr. Randolph also stated that a more exact diagnosis of appellant’s condition could be made if OWCP authorized further evaluation. This report was received by OWCP on October 20, 2011.

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41 ECAB 548 (1990).
The Board notes that OWCP’s November 3, 2011 merit decision did not mention this addendum report. The decision listed the medical evidence OWCP received since the September 20, 2011 decision as follows: “chiropractor reports, ranging in dates from December 17, 2010 to July 19, 2011 (duplicates), and October 13, 2011; medical reports, dated July 27, 2011 (duplicate) and October 18, 2011; a diagnostic report, dated October 14, 2011; and your statement.” However, the report dated July 27, 2011 was not a duplicate, as it contained an addendum signed by Dr. Randolph on October 6, 2011. OWCP’s December 1, 2011 decision also did not mention the October 6, 2011 addendum report. This decision noted receipt of two statements from appellant, an accident report, third-party information, chiropractic notes from Dr. Valente, a CT of the lumbar spine, and treatment notes from Dr. Randolph dated July 27, 2011 and October 18, 2011.

OWCP has not acknowledged receipt of the October 6, 2011 addendum report from Dr. Randolph, or made any findings regarding this report.

The Board finds that OWCP, in the November 3 and December 1, 2011 decisions did not review the above noted medical report from Dr. Randolph. For this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted prior to these decisions. Following such further development as OWCP deems necessary, it shall issue an appropriate decision on the claim.

IT IS HEREBY ORDERED THAT the December 1 and November 3, 2011 decisions of the Office of Workers Compensation Programs are set aside. The case record is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: November 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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