J.S. and Department of Veterans Affairs, Central Texas Health Care System, Waco, TX (Board decision, July 19, 2016)

ECAB remand decision. The Board remanded J.S.’s increased-impairment claim for an OWCP merits decision; any additional 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

J.S. had received schedule awards for leg and arm impairment, then submitted more medical evidence and sought an increase. OWCP expanded the accepted conditions but declined to reopen the schedule award claim as an untimely reconsideration request. The Board held that she could seek an increased award based on later impairment and directed OWCP to decide that claim on its merits.

Decision snapshot

• Authority: S.B., Docket No. 15-1499; FECA Procedure Manual, ch. 2.808.7(b).
• Outcome: Increased schedule award claim remanded for a merits decision.
• Key point: A later increased-impairment claim required adjudication despite the older award decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 16-0576
) Issued: July 19, 2016
DEPARTMENT OF VETERANS AFFAIRS,
)
CENTRAL TEXAS HEALTH CARE SYSTEM,
)
Waco, TX, 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 February 1, 2016 appellant filed a timely appeal of a November 19, 2015 decision of the Office of Workers’ Compensation Programs (OWCP), which declined to review her claim for a schedule award. The Board docketed the appeal as No. 16-0576.

The Board has duly considered the matter and finds that this case is not in posture for a decision. On July 21, 2011 OWCP accepted appellant’s claim for a fracture of the right ankle, right shoulder conditions, and internal derangement of the right knee. It accepted the additional condition of tear of the left medial meniscus on October 14, 2011. By decision dated September 25, 2014, OWCP granted appellant a schedule award for 30 percent permanent impairment of the left leg, 5 percent of the right leg, and 1 percent of the right arm.

Following this decision, appellant submitted additional medical evidence regarding the extent of her permanent impairment. On December 17, 2014 and March 2, 2015 she requested reconsideration of the September 25, 2014 decision. By decision dated May 29, 2015, OWCP refused to reopen appellant’s claim for consideration of the merits. On September 30, 2015 appellant again requested reconsideration of the September 25, 2014 decision. She submitted additional medical evidence. By decision dated November 16, 2015, OWCP expanded appellant’s claim to include complete rotator cuff tear of the right shoulder and joint derangement of the left ankle. However, by decision dated November 19, 2015, it declined to reopen appellant’s schedule award claim finding that her request for reconsideration was untimely and did not establish clear evidence of error.

The Board finds that, in accordance with relevant case law and regulations, the case should be remanded for adjudication of appellant’s schedule award claim. A claimant may seek an increased schedule award if the evidence establishes that he or she sustained increased impairment at a later date causally related to the accepted employment injury.1

As appellant requested reconsideration of her schedule award decision and submitted new medical evidence in support of the claim, OWCP was incorrect in failing to adjudicate and process the claim. The Board will therefore remand the case for an appropriate decision which will address the medical evidence submitted in support of the employee’s claim of increased permanent impairment. Following such further development as OWCP deems necessary, it shall issue an appropriate decision on the merits.

IT IS HEREBY ORDERED THAT the case record is remanded to the Office of Workers’ Compensation Programs for further proceedings consistent with this order of the Board.

Issued: July 19, 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

1
See S.B., Docket No. 15-1499 (issued October 16, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(b) (January 2010).

2