L.J. and Department of Justice, Bureau of Prisons, Medical Center for Federal Prisoners, Springfield, MO (Board decision, March 25, 2013)

ECAB remand decision. The Board set aside OWCP’s September 10, 2012 denial of L.J.’s facial disfigurement award claim because the record sent to the Board lacked photographs used in the medical assessment. Whether an award is due 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).

Plain-English summary

L.J., a Bureau of Prisons sports specialist, was injured when a softball bat struck his head at work. He later sought compensation for facial disfigurement. OWCP’s medical adviser reviewed three photographs and concluded that the visible scar did not warrant an award, but those photographs were absent from the case record sent to the Board. The Board set aside the denial and directed OWCP to reconstruct the record and decide the claim anew.

Decision snapshot

• Authority: FECA Procedure Manual requirements for facial disfigurement assessment and a complete record.
• Outcome: September 10, 2012 denial set aside; claim remanded for a complete record and new decision.
• Key point: The Board cannot review a disfigurement determination without the photographs on which the medical adviser relied.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.J., Appellant
)
)
and ) Docket No. 13-104
)
Issued: March 25, 2013
DEPARTMENT OF JUSTICE, BUREAU OF )
PRISONS, MEDICAL CENTER FOR FEDERAL )
PRISONERS, Springfield, MO, Employer )
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On October 18, 2012 appellant filed a timely appeal from a September 10, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) that denied his schedule award claim for facial disfigurement. The claim was docketed as No. 13-104.

The Board has duly considered the matter and finds that this case is not in posture for decision. Upon review of the case record submitted by OWCP, the Board finds that the record before it is incomplete. OWCP accepted that appellant, a sports specialist, sustained multiple injuries on April 26, 2008 when he was accidentally struck in the head by a softball bat.1 On October 1, 2009 appellant filed a schedule award claim. Following an initial denial and remand by an OWCP hearing representative, by decision dated November 8, 2010, appellant was granted a schedule award for 10 percent impairment of the right arm. In a May 4, 2011 decision, an OWCP hearing representative affirmed the November 8, 2010 decision regarding schedule award

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The accepted conditions are: fracture other facial bones, closed; periocular bruising; black eye, not otherwise specified; concussion with loss of consciousness of 30 minutes or less; closed fracture of C7 cervical vertebral without spinal cord injury; acute and subacute iridocyclitis, not otherwise specified, right; closed fracture of base of skull without intracranial injury; multiple closed fracture of skull without intracranial injury, with brief loss of consciousness; closed fracture of mandible; traumatic subarachnoid hemorrhage without open wound, brief coma. entitlement for the right arm and remanded the case to OWCP to determine to whether appellant was entitled to a schedule award for additional accepted conditions. In a July 18, 2011 decision, OWCP found that appellant was not entitled to a schedule award for additional conditions.

In July 2011 appellant claimed a schedule award for disfigurement. In an August 1, 2011 report, Dr. Carl Claxton, an osteopath, noted that appellant had a healed longitudinal right temporal bone fracture and fracture through the zygomatic arch and inferolateral orbital wall with fracture of the right mandibular sinus which resulted in permanent anatomic abnormalities and loss of function and an additional four centimeters healed surgical incision on the right anterior neck. In an October 10, 2011 report, Dr. Daniel D. Zimmerman, Board-certified in internal medicine and pediatrics and an OWCP medical adviser, opined that the accepted condition had not resulted in permanent disfigurement of a scheduled member. He indicated that he had reviewed photographs and that these did not show a facial disfigurement that would act as a hindrance to employability.

By decision dated October 17, 2011, OWCP denied appellant’s claim for a disfigurement award. Appellant timely requested hearings on both the July 18 and October 17, 2011 decisions. A hearing was held on November 10, 2011. On January 26, 2012 an OWCP hearing representative affirmed the July 18, 2011 decision. In a separate decision, the hearing representative set aside the October 17, 2011 decision regarding disfigurement on the grounds that OWCP had not followed its procedures because OWCP’s medical adviser did not address whether maximum medical improvement had been reached, and because there was no indication that the District Director had concurred with the medical adviser’s conclusion, as required by OWCP procedures.

In a February 28, 2012 report, Dr. Zimmerman, the medical adviser, indicated that maximum medical improvement was reached on July 27, 2011, the date of three photographs. He stated that the minimally visible scar was not sufficient to entitle a monetary award and that the August 1, 2011 report from Dr. Claxton provided no reason to consider a monetary award. On March 16, 2012 Lois Maxwell, the District Director, concurred with the medical adviser’s conclusion. In a March 22, 2012 decision, OWCP denied the claim for a schedule award for disfigurement. Appellant requested a hearing that was held on March 28, 2012. On September 10, 2012 an OWCP hearing representative affirmed the March 22, 2012 decision.

OWCP procedures indicate that payment of compensation not to exceed $3,500.00 may be made for disfigurement of the face, head or neck which is likely to handicap the claimant in securing or maintaining employment. The procedures further provide that the medical adviser will be asked to review such claims and to evaluate the employee’s disfigurement. If the medical adviser finds that maximum medical improvement has occurred, the medical adviser shall review the photographs submitted along with the medical evidence of record. The concurrence of the District Director or the Assistant District Director must be obtained.2

In the case at hand, Dr. Zimmerman, the medical adviser, indicated that he reviewed three photographs in reaching his conclusion that appellant was not entitled to a disfigurement award.

2
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see D.H., Docket No. 10-2095 (issued June 6, 2011).

2
These photographs, however, are not found in the imaged case record forwarded to the Board. Hence the Board finds this case is not in posture for decision as the record before the Board is incomplete and would not permit an informed adjudication of the case by the Board. The case must therefore be remanded to OWCP to obtain the aforementioned three photographs and for further reconstruction and assemblage deemed necessary, to be followed by a de novo decision on the merits of appellant’s claim for a monetary award for facial disfigurement due to the April 26, 2008 employment injury.

IT IS HEREBY ORDERED THAT the September 10, 2012 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: March 25, 2013
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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