F.Y. and Department of Veterans Affairs, Veterans Administration Medical Center, Jackson, MS (Board decision, March 10, 2015)

ECAB remand decision. The Board set aside OWCP’s February 10, 2014 reconsideration denial and remanded for a merits decision on additional permanent impairment. Entitlement to a larger schedule award remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

F.Y. had received a schedule award for five percent right-arm impairment. She later submitted medical testing and sought an increased award. OWCP treated her filing as an untimely request to reconsider the earlier award. The Board found that she was seeking a new award based on later evidence and directed OWCP to develop the impairment issue and issue a merits decision.

Decision snapshot

• Authority: Board practice for increased schedule award claims based on new medical evidence.
• Outcome: Reconsideration denial set aside; additional-impairment claim remanded.
• Key point: New evidence of later impairment called for a merits decision on an increased award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.Y., Appellant
)
)
and ) Docket No. 14-1679
) Issued: March 10, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Jackson, MS, 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
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On July 29, 2014 appellant filed a timely appeal from a February 10, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for reconsideration as untimely filed and failing to demonstrate clear evidence of error. The Board assigned Docket No. 14-1679.

The Board has duly considered the matter and notes that the case is not in posture for a decision. OWCP’s February 10, 2014 decision denied reconsideration of its January 28, 2013 schedule award decision. In the January 28, 2013 decision, it found that appellant had five percent impairment of her right arm entitling her to a schedule award. In a letter and form dated January 22 and 23, 2014, respectively, appellant requested reconsideration of OWCP’s January 28, 2013 merit decision. She also submitted medical evidence including diagnostic testing. In a February 10, 2014 decision, OWCP denied appellant’s reconsideration request finding that it was untimely and did not present clear evidence of error.

The Board has held that where a claimant submits medical evidence regarding a permanent impairment at a date subsequent to a prior schedule award decision, she is entitled to a merit decision on the medical evidence.1 In the present appeal, appellant submitted argument, and electrodiagnostic testing asserting that she had additional impairment entitling her to an increased schedule award. It is evident from the record that she was not seeking reconsideration of the January 28, 2013 merit decision, but was seeking an increased schedule award based on new medical evidence.

The case will be remanded for further development on the issue of whether appellant has additional permanent impairment of her upper extremities entitling her to a schedule award. After this development is carried out, OWCP shall issue an appropriate merit decision on appellant’s claim.

IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: March 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1
See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); See also B.K., 59 ECAB 228 (2007)(where is was evidence that the claimant was seeking a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the schedule award claim rather than adjudicate an application for reconsideration). R.K., Docket No. 14-1227 (issued October 24, 2014).

2