G.M. and U.S. Postal Service, Post Office, Appleton, WI (Board decision, September 29, 2014)

ECAB remand decision. The Board set aside OWCP’s February 28, 2014 denial of G.M.’s foot injury claim and returned it for consideration of her statement received on the decision date. Whether the claim is compensable 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

G.M., a postal carrier, reported right foot pain after walking her route and initially filed a traumatic injury claim. OWCP asked her to explain the work event and whether she meant to claim an occupational disease. She sent a statement describing the walking and explaining why she believed the claim should be treated as an occupational disease. OWCP received the statement on the day it denied her claim but did not address it. The Board set aside the denial and directed OWCP to review that evidence and issue a new decision.

Decision snapshot

• Authority: Board decision finality and complete-record review, 20 C.F.R. § 501.6(c).
• Outcome: February 28, 2014 denial set aside; claim remanded for review of G.M.’s statement.
• Key point: OWCP had to consider relevant evidence received on the same day it issued its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.M., Appellant
)
)
and ) Docket No. 14-1151
) Issued: September 29, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Appleton, WI, 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 April 21, 2014 appellant filed a timely appeal from a February 28, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).

Appellant, then a 62-year-old city mail carrier, filed a Form CA-1, claim for compensation for traumatic injury. The form did not contain a description of the injury for which she was claiming compensation, and noted that the cause of her injury was unknown. She stated that the injury occurred on December 9, 2013. The employing establishment noted that appellant stopped work on December 20, 2013. It also noted that this claim was not for a traumatic injury, and that the form submitted should have been a Form CA-2 claim for occupational disease.

With her claim, appellant submitted two documents containing recommendations on returning to work, signed by a nurse practitioner. She also submitted a report signed by a physical therapist.

By letter dated January 29, 2014, OWCP asked appellant to submit additional evidence in support of her claim. It noted that she had not submitted sufficient evidence to establish that she actually experienced an incident or employment factor alleged to have caused injury, and that she had not provided a diagnosis of a condition from a physician or a physician’s opinion as to how her injury resulted in the condition diagnosed. OWCP also requested that appellant clarify as to whether she was claiming an occupational disease or a traumatic injury.

Appellant submitted three reports signed by a nurse practitioner. She also submitted another document containing recommendations on returning to work and transcription notes dated January 28, 2014, signed by the same nurse.

In a report dated February 10, 2014, Dr. David C. Ritzow, a Board-certified orthopedist, diagnosed appellant with right foot plantar fasciitis. He stated that appellant was seen on that day for her right foot, and that she had noted improvement in her symptoms. Dr. Ritzow submitted a document containing his recommendations on appellant’s return to work, noting a date of injury of December 9, 2013. He checked a box indicating that the injury was work- related and provided diagnoses of right foot plantar fasciitis, mild tendinitis anterior to the tibial tendon, mild synovitis and an unnamed condition of the flexor halluces longus (FHL).

By letter dated February 24, 2014, appellant responded to OWCP’s inquiries. She explained that on December 9, 2013 she went to work at the employing establishment to perform her eight-mile walking route. Appellant noted that it was snowing on that day, and that she wore boots. After three hours of walking, her right foot began to hurt. She stated that she did not step incorrectly or fall, but that she had been walking in the same manner that she usually did. Appellant noted that she had never had any problems with her feet before other than that they were tired at the end of the day. She took her boots off and put on tennis shoes, which did not help with the pain. The next day, appellant stated that she saw a physician in order to determine the nature of the pain, who told her that she had a bone spur and to take over-the-counter pain medication. Appellant continued to work for the next two weeks. On December 19, 2013 her foot became so sore that she could not finish her route. The next day, she saw Dr. Ritzow, whose assistant told her that her injury appeared to be a stress fracture. Appellant stated that she had an magnetic resonance imaging scan, which determined that she had tendinitis, and attended physical therapy. She explained that her claim was originally filed as a traumatic injury because she thought it was a stress fracture, but that as her diagnosis was tendinitis, it should have been submitted as an occupational disease claim.

By decision dated February 28, 2014, OWCP denied appellant’s claim. It found that she had not identified a cause of injury, and that the medical evidence was insufficient to establish that a diagnosed condition was causally related to an injury. OWCP noted that the evidence received from appellant included return to work slips and a report signed by a nurse, physical therapy notes and Dr. Ritzow’s February 10, 2014 report.

The Board has held that OWCP must review all evidence submitted by a claimant and received by it prior to the issuance of a final decision, including evidence received on the date of the decision.1 Since Board decisions are final as to the subject matter appealed,2 it is crucial that all of the evidence relevant to that subject matter, which was properly submitted to OWCP prior

1
Linda Johnson, 45 ECAB 439 (1994).
2
20 C.F.R. § 501.6(c).

2 to the time of issuance of its final decision, be addressed by OWCP.3 In its February 28, 2014 decision, OWCP did not consider appellant’s February 24, 2014 statement responding to its inquiries, which was received on February 28, 2014. As OWCP failed to address all the relevant evidence of record at the time it issued its February 28, 2014 decision, the case is remanded for a proper review of the evidence and issuance of an appropriate final decision.4

IT IS HEREBY ORDERED THAT the February 28, 2014 decision of the Office of Workers’ Compensation Programs is set aside, and the case record remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: September 29, 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
William A. Couch, 41 ECAB 548 (1990).
4
See A.B., Docket No. 12-1907 (issued May 13, 2013).

3