K.F. and Department of Defense, Education Activity, Alexandria, VA (Board decision, January 2, 2014)

ECAB remand decision (order remanding case). The Board reversed OWCP’s June 7, 2013 refusal to reopen K.F.’s injury claim and sent the matter back for a merit decision. It did not decide whether the claimed back and leg injury was compensable. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the appealed refusal 30 days after issuance. A party may petition the Board for reconsideration within 30 days 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.F., a Defense Department custodial worker, claimed back and right leg injuries after lifting a trash can at work. OWCP denied the claim for insufficient medical evidence and later refused to reopen it, calling his reconsideration evidence repetitive. The Board found that a report first submitted on reconsideration had been countersigned by his orthopedic surgeon, making it new and relevant medical evidence. That was enough to require OWCP to review the claim on its merits. The Board remanded for a new decision and did not decide whether K.F. had proved the injury itself.

Decision snapshot

• Authority: OWCP reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
• Outcome: June 7, 2013 refusal to reopen reversed; injury claim remanded for merit review.
• Key point: The physician’s signature on a previously submitted assistant’s report made the reconsideration submission new and relevant evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.F., Appellant
)
)
and ) Docket No. 13-1662
) Issued: January 2, 2014
DEPARTMENT OF DEFENSE, EDUCATION
)
ACTIVITY, Alexandria, VA, 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 July 2, 2013 appellant filed a timely appeal from a June 7, 2013 nonmerit decision and a February 20, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No. 13-1662.

On November 8, 2012 appellant, then a 50-year-old custodial worker, filed a traumatic injury claim alleging an injury to his back and right leg when he lifted a heavy trash can at work on October 31, 2012. In support of his claim, appellant submitted reports of attending physician’s assistants. These included a report dated December 27, 2012 of a December 14, 2012 visit. Appellant also submitted reports of Dr. Brian J. Battersby, Jr., an attending Board- certified orthopedic surgeon, including a December 14, 2012 work capacity report. In a February 20, 2013 decision, OWCP denied appellant’s claim on the grounds that he had not submitted sufficient medical evidence in support of the claim.1

Appellant requested reconsideration in April 2013 and submitted additional documents, including the December 27, 2012 report now countersigned by Dr. Battersby and an April 13, 2013 addendum by Dr. Battersby. In its June 7, 2013 decision, OWCP denied appellant’s

1
Physicians assistants are not considered physicians under 5 U.S.C. § 8101(2). request for further review of the merits of his claim under 5 U.S.C. § 8128(a), finding the evidence submitted by appellant to be duplicative.

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 OWCP’s regulations provide that the evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a claimant also must file his application for review within one year of the date of that decision.4

The Board notes that OWCP failed to consider the new medical report dated December 27, 2012 by Dr. Battersby. This report now countersigned by Dr. Battersby and submitted for the first time with appellant’s reconsideration request, constituted new and relevant medical evidence. Therefore, the submission of this evidence requires reopening of appellant’s claim for merit review.5 The case shall be remanded to OWCP and, after any development deemed necessary, OWCP shall conduct a merit review of appellant’s claim, pursuant to 5 U.S.C. § 8128(a) and issue an appropriate merit decision.6

2
Under section 8128 of FECA, “The Secretary of Labor may review an award for or against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a). 3 20 C.F.R. § 10.606(b)(2).
4
Id. at § 10.607(a).
5
See D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).
6
Given the Board’s disposition of the nonmerit issue of this case (the denial of appellant’s merit review request), it is not necessary to consider the merit issue, i.e., whether appellant submitted sufficient medical evidence to establish that he sustained a work-related injury on October 31, 2012. See 20 C.F.R. § 501.2(c).

2
 IT IS HEREBY ORDERED THAT the June 7, 2013 decision of the Office of Workers’ Compensation Programs is reversed and the case remanded to OWCP for further proceedings consistent with decision of the Board.

Issued: January 2, 2014
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