R.S. and Department of the Army, McAlister Army Ammunition Plant, McAlister, OK (Board decision, February 9, 2016)

ECAB remand decision. The Board set aside OWCP’s October 23, 2014 refusal to modify a wage-earning capacity determination and returned the claim for review of medical reports received before the decision. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

R.S., an Army ammunition plant employee, sought modification of a wage-earning capacity determination based on his work as a tools and parts attendant. Before denying modification, OWCP received two physician reports that described worsening accepted neck conditions and additional symptoms affecting his ability to work. Its decision did not acknowledge or evaluate those reports. The Board set aside the ruling and directed OWCP to consider all evidence received before its decision and issue a new one. It did not decide whether modification was warranted.

Decision snapshot

• Authority: OWCP duty to consider evidence received before a final decision.
• Outcome: October 23, 2014 refusal to modify set aside and remanded.
• Key point: OWCP had the two physician reports before it ruled but did not review them.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.S., Appellant
)
)
and ) Docket No. 15-0502
) Issued: February 9, 2016
DEPARTMENT OF THE ARMY, McALISTER
)
ARMY AMMUNITION PLANT,
)
McAlister, OK, Employer
)
__________ )

Appearances: Case Submitted on the Record
Debra Hauser, Esq., 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 January 7, 2015 appellant filed an application for review of an Office of Workers’ Compensation Programs’ (OWCP) decision dated October 23, 2014, which denied modification of a wage-earning capacity determination dated May 9, 2013.1

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,2 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 the May 9, 2013 decision in which OWCP denied modification of a decision finding that appellant’s actual earnings as a tools and parts attendant represented his wage-earning capacity, appellant requested reconsideration. He also submitted additional evidence. This included new reports from Dr. Andrew Briggeman dated May 28 and July 23, 2014. In these reports Dr. Briggeman diagnosed cervical spondylosis, radiculitis, cervical stenosis with cord impingement, history of work-related cervical injury in 2009 with need for posterior fusion, severe chronic cervicothoracic myofascial spasm, chronic occipital neuralgia/tension cephalgia, and left and right-sided sensorimotor median mononeuropathy, which were a direct consequence of

1
OWCP accepted appellant’s claim for sprain of the neck, degeneration of cervical intervertebral disc, intervertebral disc disorder with myelopathy of the cervical region, spinal stenosis in the cervical region, and brachial neuritis or radiculitis. 2 41 ECAB 548 (1990). appellant’s original injury. He noted that appellant was in the performance of his regular duties as a carpenter when he was injured. Dr. Briggeman noted that appellant continued to have degeneration of cervical intervertebral disc, intervertebral disc disorder with myelopathy/cervical region, spinal stenosis in the cervical region, and radiculitis. He opined that appellant’s condition has materially worsened and he sustained several consequential injuries as a result of his work-related injury including cervical radiculopathy, neuralgia/neuritis/radiculitis, cervical stenosis at C3-7 with cord impingement and, chronic headaches, and right- and left-sided sensorimotor median mononeuropathy. Dr. Briggeman further opined that the resulting impact of appellant’s original workplace injury which occurred on February 23, 2009 caused the consequential conditions and has affected his ability to perform his job. These reports were received by OWCP on October 21, 2014. In its October 23, 2014 decision, OWCP denied modification of the wage-earning determination of May 9, 2013 on the grounds that the evidence presented was not sufficient to warrant modification. It did not note receipt or consideration of the reports from Dr. Briggeman dated May 28 and July 23, 2014.

The Board finds that OWCP, in its October 23, 2014 decision, did not review the reports from Dr. Briggeman dated May 28 and July 23, 2014.3 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 October 23, 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 October 23, 2014 decision of the Office of Workers’ Compensation Programs be set aside. The case recorded is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: February 9, 2016
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
See id.

2