R.M. and Department of Agriculture, National Resources Conservation Service, Stillwater, OK (Board decision, December 27, 2017)

ECAB remand decision. The Board set aside OWCP’s March 2, 2017 denial of lumbar fusion authorization and remanded for consideration of medical reports received before the decision. The surgery request 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 of issuance unless this order 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

R.M. sought authorization for lumbar fusion surgery. OWCP said it had not received additional material from his physician and denied the request. The Board identified three physician reports that OWCP had received before issuing the denial but had not considered. It ordered OWCP to review the complete record and issue a new decision.

Decision snapshot

• Authority: William A. Couch, 41 ECAB 548 (1990).
• Outcome: March 2, 2017 surgery denial set aside; medical reports remanded for review.
• Key point: OWCP had to consider reports already in its possession before deciding the surgery request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.M., Appellant
)
)
and ) Docket No. 17-1162
) Issued: December 27, 2017
DEPARTMENT OF AGRICULTURE,
)
NATIONAL RESOURCES CONSERVATION
)
SERVICE, Stillwater, OK, 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 ALEC J. KOROMILAS, Alternate Judge

On May 5, 2017 appellant filed an application for review of a March 2, 2017 Office of Workers’ Compensation Programs (OWCP) decision which denied authorization for lumbar fusion surgery.

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,1 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 appellant’s request for approval of lumbar surgery, OWCP sent appellant’s physician, Dr. Robert L. Remondino, an August 18, 2016 letter requesting that the physician comment on the report of an OWCP medical adviser who recommended that the surgery request be denied. It subsequently received additional evidence from Dr. Remondino that included May 19 and July 21, 2016 and February 20, 2017 reports. These reports were received by OWCP on September 1 and 14, 2016 and March 1, 2017. In its March 2, 2017 decision, OWCP denied authorization for lumbar fusion surgery as appellant provided insufficient medical evidence to support authorization of the requested surgery. It noted that, in response to its August 18, 2016 letter, it had “not received

1
41 ECAB 548 (1990). any additional evidence.” OWCP did not note receipt or consideration of the additional reports from Dr. Remondino.

The Board finds that OWCP, in its March 2, 2017 decision, did not review the reports from Dr. Remondino dated May 19, July 21, 2016 and February 20, 2017. 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 March 2, 2017 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 March 2, 2017 decision of the Office of Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: December 27, 2017
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

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