V.B. and Department of Veterans Affairs, Bay Pines Medical Center, St. Petersburg, FL (Board decision, April 30, 2020)

ECAB remand decision. The Board set aside OWCP’s July 31, 2019 schedule award denial and ordered a new decision. The amount of any additional 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

A Veterans Affairs medical support assistant sought a schedule award after an accepted left knee injury and surgery. OWCP denied it because he had already received a six percent award for the same leg under an earlier claim. The Board found that the current record lacked the medical reports supporting the earlier rating and that comparing percentages alone could not show whether the impairments overlapped. It set aside the denial and directed OWCP to combine the claim files and issue a new decision.

Decision snapshot

• Authority: FECA Procedure Manual, Part 2, Chapter 2.400.8(c).
• Outcome: July 31, 2019 schedule award denial set aside and remanded.
• Key point: OWCP must compare the underlying impairments, not just the prior and current percentages, before denying an additional award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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V.B., Appellant
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and
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Docket No. 19-1942
DEPARTMENT OF VETERANS AFFAIRS, ) Issued: April 30, 2020 BAY PINES VETERANSA MEDICAL CENTER, )
St. Petersburg, FL, Employer
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__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 19, 2019 appellant filed a timely appeal from a July 31, 2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1942.1

On July 3, 2018 appellant, then a 55-year-old medical support assistant, filed a traumatic injury claim (Form CA-1) alleging that on February 14, 2018 he injured his left knee when he turned to stand up from his desk and his chair rolled out from under him, causing him to lose his balance and slip while in the performance of duty. On August 15, 2018 OWCP accepted the claim, assigned File No. xxxxxx661, for aggravation of derangement of other medial meniscus due to a

1
The Board notes that, following the July 31, 2019 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id. prior tear or injury of the left knee. 2 On November 28, 2018 appellant underwent left knee arthroscopic surgery.

On February 8, 2019 appellant filed a claim for a schedule award (Form CA-7). By decision dated July 31, 2019, OWCP denied appellant’s schedule award claim, finding that medical evidence of record failed to support an increase in the permanent impairment beyond the previously awarded six percent permanent impairment of the left lower extremity under OWCP File No. xxxxxx309.

While the record currently before the Board does contain appellant’s May 24, 2011 schedule award for six percent permanent impairment of the left lower extremity and a May 5, 2011 report by a district medical adviser (DMA) regarding appellant’s permanent impairment, it does not contain all of the relevant impairment rating medical reports under OWCP File No. xxxxxx309.3 The DMA’s May 5, 2011 report did not provide sufficient detail explaining the basis of the permanent impairment rating. The Board has previously held that simply comparing the prior percentage of permanent impairment awarded to the current impairment for the same member is not always sufficient to deny an increased schedule award claim. 4 The issue is not whether the current permanent impairment rating is greater than the prior impairment ratings, but whether it duplicates in whole or in part the prior impairment rating. 5

OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the issues depends on frequent cross-referencing between files. 6 For example, if a new injury case is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body, doubling is required.7 Because they both involve schedule awards for accepted injuries to appellant’s left lower extremity, for a full and fair adjudication, the claims in OWCP File Nos. xxxxxx661 and xxxxxx309 must be administratively combined. 8

Accordingly, the Board will remand the case to OWCP to administratively combine the case records for File Nos. xxxxxx661 and xxxxxx309. Following this and other such further

2
OWCP previously accepted that appellant sustained a left lower extremity impairment of six percent due to his accepted conditions of lateral collateral ligament knee sprain and left knee medial meniscus tear in OWCP File No. xxxxxx309. 3 The Board notes that the May 3, 2011 DMA report references an April 15, 2011 medical report from appellant’s attending physician received by OWCP in response to their development of his schedule award claim. 4 R.K., Docket No. 19-0247 (issued August 1, 2019).
5
Id.
6
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000). 7 Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018). 8 See B.O., Docket No. 18-1100 (issued February 24, 2020).

2 development, as deemed necessary, OWCP shall issue a de novo decision on appellant’s schedule award claim.

IT IS HEREBY ORDERED THAT the July 31, 2019 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: April 30, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

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