L.S. and Department of Veterans Affairs, Veterans Health Administration, Buffalo, NY (Board decision, April 22, 2016)

ECAB final decision. The Board set aside OWCP’s July 31, 2015 refusal to reopen L.S.’s claim and remanded it for a decision on the merits. 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 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

L.S., a nursing assistant, sought benefits for a right shoulder injury after moving a bed at work. OWCP denied the claim and later refused to reopen it, reasoning that a new physician’s report lacked a valid signature. The Board found a handwritten physician signature on the report, along with letterhead and other signs of authorship. Because the report was relevant new medical evidence, OWCP had to review the merits of the claim again. The Board set aside the refusal and returned the case to OWCP without deciding whether the injury claim should ultimately be accepted.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606(b)(3).
• Outcome: July 31, 2015 refusal to reopen set aside; claim remanded for merits review.
• Key point: The physician’s signed report was new evidence sufficient to require OWCP to reopen the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 16-0375
) Issued: April 22, 2016
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Buffalo, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 28, 2015 appellant, through counsel, filed a timely appeal from a July 31, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed since the last merit decision dated February 23, 2015 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for further merit review pursuant to 5 U.S.C. § 8128(a).

Appellant, through counsel, contends on appeal that OWCP’s decision makes unfounded conclusions regarding the evidence and erred in concluding that a physician failed to sign a medical report.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On August 22, 2014 appellant, then a 54-year-old nursing assistant, filed a traumatic injury claim (Form CA-1) alleging that on July 29, 2014 she sustained a right shoulder injury after she unlocked a bed and felt burning pain in her right shoulder.

By letter dated October 2, 2014, OWCP notified appellant that her claim was initially administratively handled to allow medical payments as her claim appeared to involve a minor injury resulting in minimal or no lost time from work. However, the merits of her claim had not been formally considered and her claim had been reopened because she had not returned to work in a full-time capacity. OWCP notified appellant that the evidence of record was insufficient to support her claim. Appellant was advised of the medical and factual evidence needed and was afforded 30 days to respond.

In support of her claim, appellant submitted July 29 and August 12, 2014 medical notes, an August 24, 2014 magnetic resonance imaging (MRI) scan of the right shoulder, and September 15 and October 15, 2014 progress notes from a physician assistant.

By decision dated November 13, 2014, OWCP denied appellant’s claim finding that the medical evidence of record failed to establish a firm medical diagnosis which could be reasonably attributed to the July 29, 2014 employment incident.

By letter dated December 3, 2014, appellant requested reconsideration of OWCP’s decision and provided details pertaining to the July 29, 2014 employment incident and alleged employment injury.

In support of her claim, appellant submitted progress notes dated July 29 through October 3, 2014 from Dr. Caroline E. Fernandez, Board-certified in internal medicine. She also submitted a July 30, 2014 x-ray of the right shoulder and physical therapy notes dated October 7 through 23, 2014.

By decision dated February 23, 2015, OWCP affirmed the November 13, 2014 decision, as modified, finding that the evidence of record failed to establish that her diagnosed condition was causally related to the accepted July 29, 2014 employment incident.

By letter dated July 30, 2015, appellant, through counsel, requested reconsideration of the OWCP decision. Counsel noted submission of new medical evidence in the form of a June 30, 2015 medical report from Dr. Matthew Landfried, a Board-certified orthopedic surgeon, in support of appellant’s traumatic injury claim.

In a June 30, 2015 medical report, Dr. Landfried reported that he evaluated appellant on May 9, 2014 due to complaints of pain and discomfort in her shoulder after pushing a bed and experiencing a sudden onset of pain. He reported that appellant had been his patient since 2009 and had no history of shoulder problems. Dr. Landfried explained that it was not unusual for chronic syndrome and bursitis or acromioclavicular (AC) joint arthrosis to develop pain after an injury. He did not believe that appellant’s impingement syndrome was due to other problems as the onset of symptoms occurred after the workplace incident. Dr. Landfried diagnosed AC joint

2 arthritis with bursitis and partial rotator cuff tear. He opined that there was a direct relationship between the injury and the diagnosis.

By decision dated July 31, 2015, OWCP denied appellant’s request for reconsideration finding that she neither raised substantive legal questions nor included relevant and pertinent new evidence. It noted that Dr. Landfried’s June 30, 2015 medical report was of no probative value and could not be considered medical evidence. OWCP found that the report contained an electronic signature by “Joann” and provided no basis to assume that the report was signed and completed by the physician. In the July 31, 2015 decision, the senior claims examiner noted:

“Underneath the electronic signature on the note provided, it states, ‘electronically signed by agent of provider: Joann on [July 10, 2015] at 2:28.’ As such, there is no basis to assume that the report was indeed completed by the physician. It would appear that other persons have access to the physician’s electronic signature. Moreover, there is no indication that ‘Joann’ is a physician within the meaning of FECA. As such, the note cannot be regarded as medical evidence.”

LEGAL PRECEDENT

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP regulations at 20 C.F.R. § 10.606(b)(3) provide that the evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP regulations provides that when an application for reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration without reopening the case for a review on the merits.3

ANALYSIS

The Board finds that this case is not in posture for decision.

In its July 31, 2015 denial of appellant’s reconsideration request, OWCP noted that the only evidence submitted was a June 30, 2015 note from Dr. Landfried. It found that this report was irrelevant/immaterial and could not be regarded as medical evidence because it failed to contain a physician’s signature. Thus, OWCP denied merit review of her claim finding that she failed to submit any new and relevant medical evidence addressing causal relationship.4

Contrary to OWCP’s assertion, the Board finds that Dr. Landfried’s report contains a proper handwritten signature located directly above the signature line with his name. Moreover, the report was printed on the physician’s letterhead and contains sufficient indicia of

2
D.K., 59 ECAB 141 (2007).
3
K.H., 59 ECAB 495 (2008).
4
M.H., Docket No. 13-2051 (issued February 21, 2014).

3 identification concerning its author and authorship.5 An electronic signature, or e-signature, is any electronic means that indicates that a person adopts the contents of an electronic message.6 Given that the report was signed by the physician and contains proper identification, the report is of probative value as the evidence establishes that it was created by Dr. Landfried.7 Thus, the Board finds Dr. Landfried’s report to be relevant and pertinent new evidence not previously considered by OWCP and, therefore, sufficient to warrant further review of the case on the merits.8

The case will be remanded to OWCP for a decision on the merits of appellant’s claim.
On remand, OWCP should consider Dr. Landfried’s June 30, 2015 medical report, together with the previously submitted evidence of record, to determine if appellant has established that she sustained a right shoulder injury in the performance of duty causally related to the accepted July 29, 2014 employment incident.9

CONCLUSION

The Board finds that this case is not in posture for decision.

5
Cf. D.D., 57 ECAB 734-39 (2006); and Merton J. Sills, 39 ECAB 572, 575 (1988) (unsigned medical evidence with no adequate indication that it was completed by a physician is not considered probative medical evidence). 6 15 U.S.C. § 7001(a)(1) provides that a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form. 7 Id.
8
See R.M., Docket No. 08-734 (issued September 5, 2008); Donald T. Pippin, 54 ECAB 631 (2003); E.R., Docket No. 09-1655 (issued March 18, 2010). 9 As the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994). Because OWCP did not consider the new medical evidence submitted by appellant, the Board cannot review such evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

4
 ORDER

IT IS HEREBY ORDERED THAT the July 31, 2015 decision of the Office Workers’ Compensation Programs is set aside and the case is remanded for further action consistent with this decision of the Board.

Issued: April 22, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

5