S.B. and Department of Veterans Affairs, Northport Veterans Hospital, Northport, NY (Board decision, March 25, 2015)

ECAB remand decision. The Board set aside OWCP’s April 15, 2014 wage capacity ruling and remanded for a new decision. The wage capacity question was sent back to OWCP. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

S.B., a former VA respiratory therapist, sought modification of an earlier loss of wage earning capacity determination. The Board found that OWCP had not addressed two later reports from her treating surgeon before refusing modification. It set aside the ruling and directed OWCP to review the evidence and issue a new decision. The order did not resolve whether the earlier wage capacity determination should change.

Decision snapshot

• Authority: 20 C.F.R. § 501.6(c).
• Outcome: April 15, 2014 refusal to modify wage capacity set aside and remanded.
• Key point: OWCP had to consider relevant medical reports submitted before its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.B., Appellant
)
)
and ) Docket No. 14-1287
) Issued: March 25, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
NORTHPORT VETERANS HOSPITAL,
)
Northport, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On May 15, 2014 appellant, through counsel, filed a timely appeal of an April 15, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) concerning a loss of wage- earning capacity (LWEC) determination. The Board docketed the appeal as No. 14-1287.

The Board has duly considered the matter and notes that this case has previously been before the Board.1 In the most recent appeal, the Board set aside a nonmerit decision and remanded the case on October 25, 2013 for OWCP to perform a merit review on appellant’s request for modification of the November 22, 2006 LWEC determination.2 On remand, 1 On April 24, 1992 appellant, then a 26-year-old respiratory therapist, filed a traumatic injury claim alleging that she injured her back while lifting a patient on April 13, 1992. OWCP accepted the claim for cervical and lumbosacral sprains and herniated disc at L3-4 and L4-5. In Docket No. 95-619 (issued August 25, 1997) (the Board set aside and remanded the case for further development of the evidence); Docket No. 99-1516 (issued July 24, 2001) (the Board set aside and remanded the case for further development of the evidence); Docket No. 08- 1157 (issued June 16, 2009) (the Board affirmed an overpayment decision); Docket No. 09-1977 (issued June 10, 2010) (the Board set aside a nonmerit decision and remanded for consideration of whether the LWEC determination should be modified); and Docket Nos. 11-514 & 11-654 (issued November 9, 2011) (the Board reversed a termination decision pursuant to 5 U.S.C. § 8106(c) and affirmed a decision denying modification of an LWEC). 2 Docket No. 13-1441 (issued October 25, 2013). appellant submitted an October 17, 2013 progress note and February 10, 2014 report from Dr. Sanford A. Ratzan, appellant’s treating Board-certified orthopedic surgeon, who diagnosed lumbosacral sprain, herniated lumbar disc, post-traumatic degenerative disc disease, cervical sprain, cervical radiculitis, and left hip trochanteric tendinitis and bursitis. Physical examination findings of the lumbosacral spine included 10 degrees extension, 20 degrees lateral bending and rotation, less than 70 degrees flexion, and 1 to 2+ lumbosacral paraspinal muscle spasm with bend and rotation. Dr. Ratzan opined that appellant was unable to perform part-time sedentary work based on her restrictions. Appellant’s work restrictions included up to 2 hours standing; up to 30 minutes of sitting; no more than a total of 2 hours per day of sitting, standing, and walking; no more than 2 hours total of moving from a sitting to a standing position; no repetitive standing or sitting; carrying up to 10 pounds; and less than 5 pounds of repetitive carrying. In his February 10, 2014 report, Dr. Ratzan stated that magnetic resonance imaging scans and x-ray interpretations from August 2010 and current studies revealed a chronic L4 and L4-5 herniated lumbar disc and disability. Based on the objective data and findings from prior reports, he opined that appellant is permanently disabled due to her lumbosacral spine condition from performing her date-of-injury job and “sedentary activities as noted.”

By decision dated April 15, 2014, OWCP denied modification of the November 22, 2006 LWEC determination. It found that appellant’s counsel did not raise new legal arguments as they were “substantially the same objections” previously considered. OWCP also found the medical evidence submitted insufficient to warrant modification as it was duplicative and considered in the November 29, 2010 decision. It noted that all of appellant’s preexisting and work-related conditions were discussed in prior decisions and that subsequent conditions need not be considered.

Board precedent holds that OWCP must review all the evidence submitted by a claimant and received by OWCP prior to the issuance of a final decision.3 As the Board’s jurisdiction is final as to the subject matter, it is crucial that OWCP accomplish this process of review.4

Because OWCP only mentioned Dr. Ratzan’s August 2, 2010 report in its April 15, 2014 decision, it is clear to the Board that OWCP did not consider the two new medical reports dated February 10 and October 17, 2014 from Dr. Ratzan submitted by appellant in support of modification of the November 22, 2006 LWEC determination. Whether it receives relevant evidence on the date of the decision or several days prior, such evidence must be considered.5 As OWCP failed to address all the relevant evidence of record at the time it issued appellant’s April 15, 2014 decision it is set aside and the case is remanded for a proper review of the evidence and issuance of a de novo final decision as to the issue of whether appellant’s LWEC warrants modification.

3
See M.B., Docket No. 09-17 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A. Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c). 4 See id.
5
Willard McKennon, 51 ECAB 145 (1999).

2
 IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 15, 2014 is set aside and the case is remanded for further action consistent with this order of the Board.

Issued: March 25, 2015
Washington, DC

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

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

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

3