B.W. and Department of Veterans Affairs, Veterans Administration Medical Center, Murfreesboro, TN (Board decision, January 14, 2013)

ECAB remand decision and order. The Board set aside OWCP’s March 30, 2012 refusal to reopen B.W.’s claims and returned the case for reconstruction of the record and a new decision. His schedule award and wage-loss claims remain unresolved on this appeal. 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.W., a former Veterans Affairs nursing assistant, appealed OWCP’s refusal to reopen his schedule award and wage-loss claims. The Board found that the record sent by OWCP lacked medical reports underlying an earlier conflict in medical opinion and the referral to an impartial examiner. Without those reports, it could not review the appeal on an informed basis. It set aside the refusal and ordered OWCP to reconstruct and assemble the record, develop it further if needed, and issue a new decision.

Decision snapshot

• Authority: Board review of a complete OWCP case record.
• Outcome: March 30, 2012 refusal set aside; case remanded for record reconstruction and a new decision.
• Key point: Missing medical reports prevented an informed Board review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.W., Appellant
)
) Docket No. 12-1537
and ) Issued: January 14, 2013
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Murfreesboro, TN, 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
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

On July 9, 2012 appellant filed a timely appeal from a March 30, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration. The Board docketed the appeal as No. 12-1537.

OWCP accepted that appellant, then a 21-year-old nursing assistant, sustained an L5-S1 herniated nucleus pulposus as the result of a September 17, 1993 employment injury. By decision dated April 22, 2004, it denied his claim for a schedule award based on the opinion of the impartial medical examiner, Dr. Eston G. Norwood, a Board-certified neurologist. By decision dated October 21, 2004, OWCP denied appellant’s claim for wage-loss compensation for the period June 29, 1998 to May 10, 1999 on the grounds that the disability was unrelated to his accepted employment injury. In decisions dated March 10, 2011, it denied modification of the April 22 and October 21, 2004 decisions. By decision dated March 30, 2012, OWCP denied appellant’s request for merit review of the denial of his claim for a schedule award and the denial of wage-loss compensation for the period June 29, 1998 to May 10, 1999.

The Board, having reviewed the case record submitted by OWCP, finds that the record is incomplete as the medical reports identified by OWCP as creating a conflict in the medical opinion on the issue of appellant’s schedule award and subsequent referral to Dr. Norwood, as the impartial medical examiner. The Board, therefore, finds that the appeal docketed as No. 12- 1537 is not currently in posture for a decision as the missing evidence would not allow for an informed adjudication on the part of this Board. Because the record forwarded by OWCP would not allow the Board an opportunity for an informed adjudication of the appeal, the case record will be returned to OWCP for reconstruction and proper assemblage of the record and, following any necessary further development, the issuance of an appropriate decision.

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ March 30, 2012 decision be set aside and the case remanded for further action in conformance with this order of the Board to be followed by an appropriate decision.

Issued: January 14, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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