M.K. and U.S. Postal Service, Post Office, Edmonds, WA (Board decision, December 10, 2014)

ECAB final decision. The Board set aside OWCP’s July 15, 2013 denial of M.K.’s schedule award claim and remanded for consideration of a medical report already in the record. Under 20 C.F.R. § 501.6(d), this Board order becomes final 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).

Plain-English summary

M.K., a postal city carrier, sought a schedule award after an accepted shoulder tear and surgery. His surgeon submitted an impairment report before OWCP denied the request, but OWCP said the report did not appear in its file until after the decision. The Board found that the report had been received three days before the denial. It set aside the decision and directed OWCP to review the evidence and decide the award claim again.

Decision snapshot

• Authority: Board review of the record under 20 C.F.R. § 501.2(c).
• Outcome: July 15, 2013 denial set aside and remanded; later reconsideration refusal became moot.
• Key point: OWCP had to consider the impairment report received before it issued its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.K., Appellant
)
)
and ) Docket No. 14-492
) Issued: December 10, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Edmonds, WA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On January 2, 2014 appellant filed a timely appeal from a July 15, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his schedule award claim. He also appealed an October 10, 2013 nonmerit decision which denied his request for reconsideration.

OWCP accepted that on February 11, 2012 appellant, then a 64-year-old city carrier, sustained a rotator cuff tear of the right shoulder while in the performance of duty. It authorized right shoulder arthroscopic surgery which was performed on April 4, 2012 by Dr. David K. Kuechle, an attending Board-certified orthopedic surgeon.

On May 21, 2013 appellant filed a claim for a schedule award.

In a June 13, 2013 medical report, received by OWCP on July 12, 2013, Dr. Kuechle advised that appellant had reached maximum medical improvement. He determined that appellant had 18 percent impairment of the right upper extremity based on the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). By decision dated July 15, 2013, OWCP denied appellant’s claim, finding the medical evidence insufficient to demonstrate a measurable impairment of a scheduled member due to his accepted February 11, 2012 work injury.

On July 17, 2013 OWCP informed appellant that Dr. Kuechle’s June 13, 2013 report was visible in the case file the day after it issued the July 15, 2013 decision. It advised him to file a request for reconsideration of its decision.

On July 17, 2013 appellant requested reconsideration and resubmitted Dr. Kuechle’s June 13, 2013 report.

In an October 10, 2013 decision, OWCP denied appellant’s request for reconsideration without a merit review. It found that Dr. Kuechle’s June 13, 2013 impairment rating was irrelevant or immaterial as it was based on the fifth edition rather than the sixth edition of the A.M.A., Guides.

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 submitted by a claimant and received by OWCP prior to the issuance of its final decision.2 While OWCP advised appellant that Dr. Kuechle’s June 13, 2013 report was only visible after it issued the July 15, 2013 decision, the imaged case record reveals that the medical report was received on July 12, 2013, prior to the issuance of its decision.

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. The case is remanded for consideration of the submitted evidence, to be followed by any necessary further development as deemed necessary and issuance of an appropriate final decision on appellant’s schedule award claim.

1
20 C.F.R. § 501.2(c).
2
William A. Couch, 41 ECAB 548 (1990) (OWCP did not consider new evidence received four days prior to the date of its decision; the Board remanded the case for consideration); see Linda Johnson, 45 ECAB 439 (1994) (the Board remanded, directing OWCP to consider evidence received the same date it issued its final decision).

2
 IT IS HEREBY ORDERED THAT the July 15, 2013 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.3

Issued: December 10, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

3
In light of the Board’s disposition in this case, the October 10, 2013 decision denying appellant’s request for reconsideration is moot.

3