K.B. and Department of Veterans Affairs, Veterans Administration Medical Center, Sioux Falls, SD (Board decision, March 13, 2018)

ECAB remand decision. The Board set aside OWCP’s March 8, 2017 decision and remanded the neck and shoulder claim; causation remains unresolved. 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).

Plain-English summary

K.B., a VA employee, claimed that her work through 2007 contributed to neck and shoulder conditions. The Board had already instructed OWCP to evaluate a physician’s report with those work years in view. OWCP instead rejected the report again because it discussed work from 2006 to 2007. The Board ordered OWCP to follow its prior direction and issue a new merit decision.

Decision snapshot

• Authority: 20 C.F.R. § 501.6(d).
• Outcome: March 8, 2017 decision set aside and remanded.
• Key point: OWCP had to evaluate the medical report under the Board’s binding prior instructions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.B., Appellant
)
)
and ) Docket No. 17-0969
) Issued: March 13, 2018
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Sioux Falls, SD, Employer
)
__________ )

Appearances: Case Submitted on the Record
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

On April 3, 2017 appellant filed a timely appeal from a March 8, 2017 decision of the Office of Workers’ Compensation Programs (OWCP). The Board assigned Docket No. 17-0969.2

The Board, having duly considered the matter, notes that the case must be remanded to OWCP.

This case has previously been before the Board. In its November 16, 2016 decision, the Board set aside OWCP’s June 25, October 7, and November 9, 2015 decisions and remanded the

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated December 8, 2017, the Board exercised its discretion and denied the request for oral argument as the issue on appeal could be fully addressed on the record. Order Denying Request for Oral Argument, Docket No. 17-0969 (issued December 8, 2017). case to OWCP for further development.3 The Board noted that appellant had claimed that her federal employment duties through 2007 had contributed to her neck and left shoulder conditions, and as such, discussion of those conditions in Dr. Rook’s April 2, 2015 report did not render the report “moot.” On remand, the Board ordered that OWCP properly review Dr. Rook’s April 2, 2015 report in light of these findings.

In its March 8, 2017 decision, OWCP found that appellant had not submitted sufficient evidence to establish causal relationship between factors of her federal employment post-2007 and her diagnosed neck and shoulder conditions. Its March 8, 2017 decision did not properly analyze Dr. Rook’s April 2, 2015 report in light of the Board’s finding that factors of appellant’s federal employment through 2007 were relevant to appellant’s claim. Instead, OWCP repeated its prior finding that Dr. Rook’s report was insufficient to modify the June 25, 2016 decision, because Dr. Rook reviewed appellant’s federal employment factors from 2006 to 2007.

The Board has final authority to determine questions of fact and law. The Board’s determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by the Director of OWCP.4 A decision of the Board is final upon the expiration of 30 days following the date of its order and, in the absence of new review by the Director, the subject matter is res judicata and not subject to further consideration by the Board.5 The Board has already found that Dr. Rook’s April 2, 2015 should be properly analyzed and that consideration of injuries from 2006 to 2007 did not render it insufficient. OWCP, in its March 8, 2017 decision, found that Dr. Rook’s April 2, 2015 report was insufficient because it listed employment factors from 2006 to 2007.

As such, OWCP has not issued a decision, which properly reviews Dr. Rook’s April 2, 2015 report as directed by the Board in its November 16, 2016 decision. The case is therefore remanded to OWCP for issuance of such a merit decision.

3
K.B., Docket No. 16-0203 (issued November 16, 2016).
4
See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also Frank W.
White, 42 ECAB 693 (1991) (the Board’s order in a prior appeal imposed an obligation on the Director to take particular actions as directed). See L.C., Docket No. 09-1816 (issued March 17, 2010) (OWCP did not follow the Board’s instructions); T.S., Docket No. 13-2135 (issued April 3, 2014). 5 See 20 C.F.R. § 501.6(d); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). There is no indication that a petition for reconsideration was filed within 30 days of the issuance of the Board’s November 16, 2016 decision and the decision became final after 30 days had elapsed. 20 C.F.R. § 501.6(d).

2
 IT IS HEREBY ORDERED THAT the March 8, 2017 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: March 13, 2018
Washington, DC

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

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

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

3