L.A. and Defense Health Agency, National Capital Region Medical Directorate, Bethesda, MD (Board decision, May 26, 2020)

ECAB remand decision. The Board set aside OWCP’s January 31, 2018 decision and remanded the case. OWCP must consider the evidence received before its decision and issue a new decision. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

L.A., a medical technologist, claimed a left wrist injury from using a microscope and manual counter at work. She submitted several medical records with her reconsideration request. OWCP discussed only one report when it denied modification of its earlier decision. The Board set aside the denial because OWCP had failed to review all evidence received before its decision.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a)(2); 20 C.F.R. § 501.2(c).
• Outcome: January 31, 2018 decision set aside and remanded.
• Key point: OWCP had to address all timely submitted relevant evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.A., Appellant
)
)
and ) Docket No. 18-0816
) Issued: May 26, 2020
DEFENSE HEALTH AGENCY, NATIONAL
)
CAPITAL REGION MEDICAL
)
DIRECTORATE, Bethesda, MD, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 7, 2018 appellant, through counsel, filed a timely appeal from a January 31, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 18-0816.

This case has previously been before the Board.2 The facts and circumstances of the case as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

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 Docket No. 16-1352 (issued August 28, 2017).
 On September 29, 2015 appellant, a 46-year-old medical technologist, filed a traumatic injury claim (Form CA-1) alleging that she sustained a left wrist injury on July 21, 2015 due to using a microscope and manual counter while in the performance of duty.

By decision dated December 22, 2015, OWCP denied appellant’s claim, finding that the medical evidence of record was insufficient to establish causal relationship between her diagnosed conditions and the accepted July 21, 2015 employment incident.

On January 19, 2016 appellant requested reconsideration of the December 22, 2015 decision and submitted January 14 and February 18, 2016 reports from Dr. Akhil Chhatre, Board- certified in physical medicine and rehabilitation.

By decision dated April 13, 2016, OWCP denied modification of its December 22, 2015 decision. On June 14, 2016 appellant appealed OWCP’s April 13, 2016 decision to the Board. By decision dated August 28, 2017,3 the Board affirmed the April 13, 2016 decision.

On November 2, 2017 appellant, through counsel, requested reconsideration of her claim.
In support thereof, she submitted a November 24, 2015 report from Dr. Rodney Omron, Board- certified in family medicine, a January 22, 2016 operative note, a February 29, 2016 report of a February 11, 2016 examination jointly prepared by Dr. Chhatre and Dr. Christina Kokorelis, Board-certified in physical medicine and rehabilitation, an April 29, 2016 report (of an April 7, 2016 examination) jointly prepared by Dr. Chhatre and Dr. David Taftian, an osteopath Board- certified in physical medicine and rehabilitation, and a May 19, 2016 report from Dr. Chhatre.

By decision dated January 31, 2018, OWCP denied modification of its prior decisions. It noted that the evidence reviewed in support of appellant’s reconsideration request consisted of a report from Dr. Chhatre dated May 19, 2016, but found that it was insufficient to establish the claim as Dr. Chhatre failed to provide sufficient medical rationale as to how appellant’s work duties on July 21, 2015 caused or aggravated a medical condition. OWCP further noted that Dr. Chhatre’s May 19, 2016 report was repetitious of evidence previously of record and reviewed by OWCP and the Board.

FECA provides that OWCP shall determine and make findings of fact in making an award for or against payment of compensation after considering the claim presented by the employee and after completing such investigation as OWCP considers necessary with respect to the claim.4 Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before OWCP at the time of its final decision,5 it is necessary that OWCP review all evidence submitted by a claimant and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as to the subject matter appealed,6 it is crucial that all evidence relevant to that subject matter which

3
Supra note 2.
4
5 U.S.C. § 8124(a)(2).
5
20 C.F.R. § 501.2(c).
6
Id. at § 501.6(d).

2 was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by OWCP.7

In the present case, OWCP did not review all of the evidence of record received prior to the issuance of its January 31, 2018 decision. The Board, therefore, must set aside the January 31, 2018 decision of OWCP and remand the case so that it may fully consider the evidence that was properly submitted by appellant prior to the issuance of its decision. Following such further consideration and after any further development as it deems necessary, it shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: May 26, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7
See N.S., Docket No. 18-0759 (issued March 11, 2019); E.P., Docket No. 14-0278 (issued February 26, 2014). See also William A. Couch, 41 ECAB 548, 553 (1990).

3