R.S. and Department of Housing and Urban Development (Board decision, December 21, 2012)

ECAB remand decision. The Board set aside OWCP's February 3, 2012 denial of R.S.'s toe injury claim and remanded for review of medical reports received before issuance. Whether the fracture is compensable remains open. 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).

Plain-English summary

R.S., a federal real estate appraiser, claimed a right big toe fracture after falling on stairs at work. OWCP accepted the event but denied the injury claim. The Board found that OWCP had failed to review medical reports received on February 2 and 3, 2012 before it issued its decision. It set aside the denial and ordered a new decision based on all timely evidence.

Decision snapshot

• Authority: FECA traumatic injury and consideration of timely evidence.
• Outcome: February 3, 2012 denial set aside and remanded.
• Key point: OWCP had to review reports received before its final decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.S., Appellant
)
) Docket No. 12-805
and ) Issued: December 21, 2012
)
DEPARTMENT OF HOUSING & URBAN
)
DEVELOPMENT, Los Angeles, CA, 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 February 17, 2012 appellant filed a timely appeal of the February 3, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim. By that decision, OWCP denied her traumatic injury claim on the grounds that the medical evidence was insufficient to establish that the claimed condition, fractured right big toe, was causally related to the established work-related event.1

The Board has duly considered the matter and notes that in the case of William A.
Couch2, 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 it issues the final decision. This rule was extended by the Board to include evidence submitted to OWCP by a claimant on the same date as OWCP’s decision but prior to the actual issuance thereof.3

1
OWCP accepted as factual that on November 30, 2011 appellant, then a 59-year-old real estate appraiser, sustained an injury to her right toe when she lost her balance while walking downstairs, catching her toe in her pant leg causing her to fall down three stairs and land on her right leg in the performance of duty. 2 41 ECAB 548 (1990).
3
Linda Johnson, 45 ECAB 439 (1994); see also Patsy R. Tatum, 44 ECAB 490, 496 (1993).
On December 13, 2011 appellant filed a claim for a fractured right big toe due to her employment activities. In a letter dated January 5, 2012, OWCP requested additional factual and medical evidence in support of her claim. It allotted appellant 30 days within which to submit the requested evidence.

On January 6, 2012 appellant submitted a work status report dated December 2, 2011 by Dr. Arcelia Martin, a Board-certified internist, diagnosing appellant with closed fracture (fx) toe, phalanx and placing her off work from December 6 through 9, 2011.

On February 2, 2012 she submitted a Doctor’s First Report of Occupational Injury or Illness dated January 30, 2012. The report listed appellant’s description of the incident, her subjective complaints, and made an objective finding that she had pain in her right shin and big toe. It was signed by Dr. Thai T. Do, a Board-certified internist, who diagnosed fx toe, phalanx, Anserine Bursitis. On February 2, 2012 appellant also submitted a physical therapy/ occupational therapy authorization request signed by Dr. Do.

On February 3, 2012, the same date OWCP issued its final decision, appellant submitted a medical report from Kaiser Permanente that related her history of injury and diagnosis. On February 3, 2012 she also submitted an orthopedic clinic report, an authorization for use or disclosure of patient health information and a physical therapist report.

Nonetheless, in denying appellant’s claim, OWCP stated that appellant responded to the OWCP development letter with the work status report received January 6, 2012 and OWCP “did not receive any medical evidence indicating the cause of the medical condition.” It concluded, therefore, that she had not established that she sustained an injury in the performance of duty, as alleged.

OWCP, in its February 3, 2012 decision, did not review the additional evidence properly submitted by appellant and received by OWCP on February 2 and 3, 2012. For this reason, the case must be remanded for a proper review of the evidence and an appropriate final decision on her entitlement to compensation. Following such further development as OWCP deems necessary, it shall issue a de novo decision.

2
IT IS HEREBY ORDERED THAT the February 3, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.

Issued: December 21, 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

3