B.C. and Department of Veterans Affairs, Veterans Health Administration, Lake City, FL (Board decision, October 20, 2015)

ECAB remand decision. The Board set aside OWCP’s April 20, 2015 denial of B.C.’s schedule award claim and remanded for review of a medical report received before that decision. Whether B.C. qualifies for an 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

B.C. sought a schedule award for permanent impairment after an accepted knee injury. OWCP denied the claim without considering an orthopedic surgeon’s report that it had received before issuing its decision. The surgeon rated 12 percent impairment of the left leg and described his method. The Board directed OWCP to review that report and the rest of the record, then issue a new decision.

Decision snapshot

• Authority: 20 C.F.R. § 501.6(d).
• Outcome: Schedule award denial set aside; case remanded for review of the omitted report.
• Key point: OWCP had to consider relevant evidence received before its final decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.C., Appellant
)
)
and ) Docket No. 15-1222
) Issued: October 20, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Lake City, FL, 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 H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On May 6, 2015 appellant filed a timely appeal from an April 20, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as number 15-1222.

By decision dated April 20, 2015, OWCP denied appellant’s claim for a schedule award as the evidence was insufficient to establish permanent impairment to a scheduled member due to her accepted December 31, 2005 work injury.1

The Board finds that, in denying appellant’s schedule award claim, OWCP failed to consider all the relevant medical evidence. OWCP based its decision on a memorandum from Dr. Bilal Khodr, a Board-certified pediatric physician, dated March 12, 2015, who did not respond to the questions in its development letter of March 5, 2015.2 However, it never considered the March 13, 2015 report of Dr. Richard M. Blecha, a Board-certified orthopedic 1 OWCP accepted appellant’s December 31, 2005 traumatic injury claim for the condition of old “disprt” left- sided anterior cruciate ligament. Appropriate benefits were paid. 2 In his March 12, 2015 letter, Dr. Khodr indicated that appellant reached maximum degree of medical improvement. surgeon, which had been submitted by letter dated April 14, 2005 by counsel at that time and received by OWCP on April 17, 2015, prior to the April 20, 2015 decision.

The Board notes that, in his March 13, 2015 report, Dr. Blecha noted the history of injury, his review of the medical record, and appellant’s medical treatment and presented examination findings. He diagnosed rupture anterior cruciate ligament (ACL), post ACL reconstruction, scoliosis, and lumbar spinal stenosis and spondylosis postinstrumented fusion, L4 to the sacrum. Under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Blecha opined that appellant had 12 percent left lower extremity impairment. Citations to the A.M.A., Guides as well as his methodology in calculating the schedule award were provided.

Because Board decisions are final with regard to the subject matter appealed,3 it is crucial that OWCP address all relevant evidence received prior to the issuance of its final decision.4 As OWCP did not review Dr. Blecha’s report, accordingly, the Board finds that this case is not in posture for decision.5 On remand, OWCP shall review all evidence of record and, following any further development of the medical evidence deemed necessary, it shall issue a de novo decision on appellant’s claim.6

3
20 C.F.R. § 501.6(d).
4
See William A. Couch, 41 ECAB 548, 553 (1990).
5
See H.H., Docket No. 14-1985 (issued June 26, 2015).
6
Due to the disposition of this case, appellant’s arguments will not be addressed. He also submitted new evidence on appeal. However, the Board lacks jurisdiction to review evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). Appellant may submit this evidence to OWCP on remand.

2
 IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 20, 2015 is set aside and the case is remanded for further consideration consistent with this order.

Issued: October 20, 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

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