E.S. and Department of Veterans Affairs, Veterans Administration Medical Center, Minneapolis, MN (Board decision, October 1, 2014)

ECAB remand decision. The Board set aside OWCP’s March 17, 2014 schedule award denial and returned the claim for the two related files to be combined and a new merits decision issued. Whether E.S. is entitled to an award remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the appealed decision 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.S. sought a schedule award for permanent impairment of his lower extremities. In an earlier appeal, the Board directed OWCP to combine two related claim files before deciding the award. OWCP cross-referenced the files but did not combine them, then denied the award after obtaining a medical adviser’s opinion. The Board held that OWCP had failed to carry out its binding prior order. It set aside the denial and directed OWCP to combine the files and issue a new decision.

Decision snapshot

• Authority: FECA claim administration, 5 U.S.C. § 8101 et seq.; binding Board remand order.
• Outcome: March 17, 2014 schedule award denial set aside and remanded.
• Key point: Cross-referencing related claim files did not satisfy the Board’s order to combine them.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.S., Appellant
)
)
and ) Docket No. 14-1004
) Issued: October 1, 2014
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Minneapolis, MN, 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
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On March 27, 2014 appellant filed an application for review of the Office of Workers’ Compensation Programs’ decision dated March 17, 2014 which denied his claim for a schedule award in file number xxxxxx121.

The Board has duly considered the matter and finds that the case is not in posture for a decision. In a prior appeal, the Board issued an October 24, 2013 order remanding case1 which set aside OWCP’s December 4, 2012 decision and directed OWCP to combine file numbers xxxxxx121 and xxxxxx791 pursuant to OWCP procedures.2 The Board noted that OWCP’s December 4, 2012 decision reviewed evidence and findings made in file number xxxxxx791, a file that was not part of the case record before the Board. In its March 17, 2014 decision, OWCP indicated that file numbers xxxxxx121 and xxxxxx791 were “cross referenced” and submitted to an OWCP medical adviser. It noted that on March 9, 2014 the medical adviser made an impairment evaluation based on medical evidence of record under file number xxxxxx121 and

1
Docket No. 13-671 (issued October 24, 2013).
2
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000). the “cross referenced case” xxxxxx791, finding that appellant did not have any ratable permanent impairment in the bilateral lower extremities. Based on this, OWCP denied appellant’s claim for a schedule award. It did not combine file numbers xxxxxx121 and xxxxxx791. File number xxxxxx791 is not presently before the Board.

The Board has final authority to determine questions of law and fact. The Board’s determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by the Director of OWCP. Otherwise, there could be no finality of decisions and the whole procedure would be nullified and questions would remain moot.3 In an October 24, 2013 order, the Board directed OWCP to combine file numbers xxxxxx121 and xxxxxx791. The Board finds that OWCP failed to take action as directed by the Board’s October 24, 2013 order. Although there is some indication in the record that the two file numbers were “cross referenced,” the file numbers were not combined in accordance with the Board’s October 24, 2013 order.

The case will be remanded to OWCP to combine file numbers xxxxxx121 and xxxxxx791. Following this and such other development as deemed necessary, it shall issue an appropriate merit decision on appellant’s claim.

IT IS HEREBY ORDERED THAT the March 17, 2014 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: October 1, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

3
See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949).

2