K.M. and U.S. Postal Service, Gateway Performance Cluster, St. Louis, MO (Board decision, June 14, 2013)

ECAB remand decision. The Board set aside OWCP’s August 29, 2012 denial of K.M.’s recurrence claim and remanded for review of medical reports and a new decision. Whether she is entitled to compensation for the claimed period 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

K.M., a postal mail handler with an accepted lumbar strain, sought compensation for a claimed recurrence of disability from May 25 through June 8, 2012. OWCP denied the claim, saying she had not supplied medical evidence for that period. The Board found that OWCP had not discussed a chiropractor’s work release, duty status report, and treatment notes in the record. It also had not considered whether that chiropractor qualified as a physician for the services described under FECA. The Board set aside the denial and directed OWCP to review the relevant evidence and issue a new decision.

Decision snapshot

• Authority: Review of the record before OWCP under 20 C.F.R. § 501.2(c)(1); chiropractor status under 5 U.S.C. § 8101(2).
• Outcome: August 29, 2012 recurrence denial set aside and remanded for a new decision.
• Key point: OWCP must consider relevant medical reports received before its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.M., Appellant
)
)
and ) Docket No. 13-180
) Issued: June 14, 2013
U.S. POSTAL SERVICE, GATEWAY
)
PERFORMANCE CLUSTER, St. Louis, MO,
)
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 October 31, 2012 appellant filed a timely application for review of an August 29, 2012 decision by the Office of Workers’ Compensation Programs (OWCP) denying her claim for a recurrence of disability for the period May 25 through June 8, 2012.

Having reviewed the case record submitted by OWCP, the Board finds that this case is not in posture for decision. On October 15, 2002 OWCP accepted that appellant sustained a lumbar strain causally related to her federal employment as a mail handler. Appellant returned to limited-duty work for the employing establishment. On July 2, 2012 she filed a recurrence of disability claim alleging a recurrence of the aforementioned employment injury on May 25, 2012, and claimed compensation from that date through June 8, 2012. On August 29, 2012 OWCP denied appellant’s claim as it found that the evidence did not establish a recurrence of disability because she did not provide medical evidence of disability for the period May 25 through June 8, 2012.

As the Board’s jurisdiction of a case is limited to reviewing that evidence that was before OWCP at the time of its final decision,1 it is necessary that OWCP review all the evidence

1
20 C.F.R. § 501.2(c)(1). submitted by a claimant and received by OWCP prior to the issuance of its final decision.2 In its decision, OWCP mentioned that the medical evidence submitted by appellant on reconsideration preceded the period of recurrence. In making this determination, it failed to address the reports submitted by Dr. Xavier T. Tipler, a chiropractor. In support of her claim, her submitted a work release form signed by Dr. Tipler, indicating that he treated appellant from May 25 through June 8, 2012, and that she was expected to return to work on June 8, 2012 with restrictions of avoiding all lifting, pushing and pulling over 30 pounds. In addition, in a duty status report dated July 11, 2012, Dr. Tipler indicated that appellant injured her low back while performing her job duties and listed her restrictions. The record also contains extensive treatment notes by Dr. Tipler dated from May 29 through July 24, 2012. In these notes, Dr. Tipler discussed appellant’s x-rays. He also noted that vertebral subluxations were found to be present in appellant’s cervical thoracic, lumbar and pelvic reasons. Dr. Tipler further noted that chiropractic adjustments were performed and that the mid-term goal of his treatment was to correct the subluxation patterns that were found on x-ray, correct postural distortions, decrease muscle spasms, increase muscle tone, lengthen muscle fibers, increase flexibility, reduce adhesions, reduce scar tissue and to increase joint mobility and range of motion. A chiropractor is considered a physician to the extent that his reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.3 OWCP never mentioned Dr. Tipler’s reports or discussed whether he was a physician under FECA.4

The Board finds that this case is not in posture for decision as OWCP did not review all the relevant evidence before issuing its decision. Following any necessary further development, OWCP shall issue a de novo decision on appellant’s recurrence of disability claim.

2
See William A. Couch, 41 ECAB 548 (1990).
3
5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).
4
Id.

2
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated August 29, 2012 is set aside and the case is remanded for further development consistent with this order of the Board.

Issued: June 14, 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

3