J.I. and Department of Defense, Tinker Air Force Base, OK (Board decision, December 21, 2012)

ECAB remand decision. The Board set aside OWCP's February 27, 2012 denial of J.I.'s elbow injury claim and remanded for consideration of medical evidence already in the record. Whether the elbow condition 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

J.I., an aircraft mechanic, reported striking his left elbow on shelves while working. OWCP denied the claim for lack of a medical diagnosis. The Board found that OWCP had overlooked a treating surgeon's report diagnosing elbow conditions that had been submitted before the decision. It set aside the denial and ordered a new decision considering that report.

Decision snapshot

• Authority: FECA traumatic injury and review of submitted evidence.
• Outcome: February 27, 2012 denial set aside and remanded.
• Key point: OWCP had to consider the timely submitted diagnostic report.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.I., Appellant
)
)
and ) Docket No. 12-1062
) Issued: December 21, 2012
DEPARTMENT OF DEFENSE, TINKER AIR
)
FORCE BASE, OK, 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 April 4, 2012 appellant filed a timely appeal from a February 27, 2012 decision of the Office of Workers’ Compensation Programs denying his claim. The Board docketed the appeal as No. 12-1062.

The Board has duly considered the matter and notes that on December 21, 2011 appellant, then a 57-year-old aircraft mechanic, filed a traumatic injury claim alleging that on December 1, 2011 he injured his left elbow after hitting his elbow on shelves while installing a cable pulley bracket. By decision dated February 27, 2012, OWCP denied his traumatic injury claim because he failed to establish fact of injury. In denying appellant’s claim, it found that he failed to submit any medical evidence containing a diagnosis. The evidence OWCP received was listed and reviewed, but no mention or review was made of the February 1, 2012 report by Dr. Michael J. Davoli, a treating Board-certified orthopedic surgeon, who noted that appellant sustained an employment injury in December 2011 and diagnosed left elbow osteoarthritis with synovitis and ulnar nerve symptoms.
Board precedent holds that OWCP must review all the evidence submitted by a claimant and received by OWCP prior to the issuance of a final decision.1 As the Board’s jurisdiction is final as to the subject matter, it is crucial that OWCP accomplish this.2

Because OWCP found that appellant failed to submit any medical evidence containing a diagnosis, it is clear to this Board that OWCP did not consider the new medical evidence submitted by appellant in reaching its decision denying his claim. Whether it receives relevant evidence on the date of the decision or several days prior, such evidence must be considered.3 As OWCP failed to address all the relevant evidence of record at the time it issued is February 27, 2012 decision, the case is remanded for a proper review of the evidence and issuance of an appropriate final decision.

IT IS HEREBY ORDERED THAT the February 27, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case is 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

1
See M.B., Docket No. 09-17(issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A. Couch, 41 ECAB 548 (1990). 2 See id.
3
Willard McKennon, 51 ECAB 145 (1999).

2