D.L. and Department of Agriculture, National Agricultural Statistical Service, Washington, DC (Board decision, August 21, 2015)

ECAB remand decision. The Board set aside OWCP's August 25, 2014 schedule award denial and remanded for consideration of a medical report already in its file. OWCP must decide the underlying claim after the ordered proceedings; the Board did not resolve entitlement to benefits. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.L. sought an additional schedule award for accepted arm and hand conditions. OWCP received a July 24, 2014 impairment report before denying the claim but did not discuss that report in its decision. The Board held that OWCP must consider all evidence received before issuing a final decision. It remanded for review of the report and a new merit decision without deciding whether D.L. was entitled to a larger award.

Decision snapshot

• Authority: 5 U.S.C. § 8107.
• Outcome: August 25, 2014 denial set aside; schedule award claim remanded for review of the omitted report.
• Key point: OWCP had to consider the impairment report received before it issued the denial.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.L., Appellant
)
)
and ) Docket No. 15-0272
) Issued: August 21, 2015
DEPARTMENT OF AGRICULTURE,
)
NATIONAL AGRICULTURAL STATISTICAL
)
SERVICE, Washington, DC, Employer
)
__________ )

Appearances: Case Submitted on the Record
Archie Lyons, for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On November 18, 2014 appellant filed an application for review of an Office of Workers’ Compensation Programs (OWCP) decision dated August 25, 2014, which denied her claim for an additional schedule award.

The Board has duly considered the matter and finds that the case is not in posture for a decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued. Following a November 30, 2010 decision, which denied appellant’s claim for an additional schedule award, appellant filed another claim for a schedule award on February 7, 2014 and submitted additional medical evidence.2 This included a July 24, 2014 report from Dr. Daniel R. Ignacio, a Board-certified physiatrist. In the July 24, 2014 report, Dr. Ignacio responded to OWCP’s June 24, 2014 letter

1
41 ECAB 548 (1990).
2
OWCP accepted appellant’s claim for contusion of the right elbow and forearm, bilateral carpal tunnel syndrome, bilateral subacute thyroiditis, other tenosynovitis of the bilateral hand and wrist. Appellant was previously granted a schedule award for 16 percent impairment of the right arm and 12 percent impairment of the left arm. asking appellant submit medical evidence in support of her claim. He disagreed with an OWCP medical adviser’s assessment of permanent impairment. Dr. Ignacio explained how his rating was based upon particular provisions of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 OWCP received this report on August 8 and again on August 15, 2014. In the August 25, 2014 decision, it denied appellant’s claim for an additional schedule award on the basis of the medical adviser’s reports dated February 14, May 30 and August 13, 2014 which found that Dr. Ignacio had not properly used the A.M.A., Guides. OWCP noted receiving reports from Dr. Ignacio dated July 8, October 9 and 29, December 16, 2013, April 4 and August 13, 2014. It did not note receipt or consideration of Dr. Ignacio’s July 24, 2014 report.

The Board finds that OWCP, in its August 25, 2014 decision, did not review the report from Dr. Ignacio dated July 24, 2014 that was received by OWCP on August 8 and 15, 2014. For this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the August 25, 2014 decision. Following such further development as OWCP deems necessary, it shall issue an appropriate merit decision on the claim.

IT IS HEREBY ORDERED THAT the August 25, 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.

Issued: August 21, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3
A.M.A., Guides (6th ed. 2008).

2