P.J. and Department of Veterans Affairs, Michael E. DeBakey VA Medical Center, Houston, TX (Board decision, August 19, 2020)

ECAB remand decision. December 6, 2019 wage loss decision set aside; evidence review remanded. 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

P.J. sought wage loss compensation for missed work in spring 2019. OWCP stated that it had not received medical evidence for the claimed period, although reports covering part of that period had arrived before its decision. The Board set aside OWCP’s December 6, 2019 decision and remanded for review of the reports.

Decision snapshot

• Authority: OWCP duty to consider all relevant evidence received before deciding a wage loss claim.
• Outcome: December 6, 2019 wage loss decision set aside; evidence review remanded.
• Key point: OWCP omitted timely received medical reports.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.J., Appellant
)
)
and ) Docket No. 20-0441
) Issued: August 19, 2020
DEPARTMENT OF VETERANS AFFAIRS,
)
MICHAEL E. DEBAKEY VA MEDICAL
)
CENTER, Houston, TX, Employer
)
__________ )

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 JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 19, 2019 appellant filed a timely appeal from a December 6, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 20-0441.

On December 28, 2018 appellant, then a 65-year-old medical technician, filed a traumatic injury claim (Form CA-1) alleging that on that date she injured her back, left shoulder, left eye, head, and both legs when she fell over a dolly in the cafeteria hallway while in the performance of duty. She stopped work on December 28, 2018 and did not return. Appellant received continuation of pay (COP) from December 31, 2018 to January 14, 2019. On March 11, 2019 OWCP accepted appellant’s claim for a strain of an unspecified muscle, fascia, and tendon at the shoulder and upper arm level in the left arm; contusion of the left knee; contusion of the right knee; strain of muscle, fascia, and tendon of the lower back; other injuries of the left eye and orbit; and other specified injuries in the head.

On April 3, 2019 appellant filed a wage-loss compensation claim (Form CA-7) for total disability from March 30 through May 6, 2019. On the reverse side of the claim form, the employing establishment indicated that appellant was placed off of work by her attending physician due to her December 28, 2018 employment-related injury.

In a development letter dated April 16, 2019, OWCP requested that appellant submit additional evidence in support of her claim for total disability compensation, including a medical report explaining how her employment-related condition worsened such that she was no longer able to perform the duties of her position when she stopped working on March 30, 2019. It afforded her 30 days to respond.

Appellant submitted medical evidence on April 29, 2019, including medical reports dated April 2 to 11, 2019 indicating that she was treated by Dr. Shahram Shakeri, a chiropractor, and An Suhyun, a nurse practitioner.

On June 27, 2019 OWCP denied appellant’s wage-loss compensation claim finding that the evidence of record was insufficient to establish total disability from work for the period March 30 through May 6, 2019 causally related to the accepted employment injury. It indicated that it had not received any medical evidence following receipt of the Form CA-7.

On November 20, 2019 appellant requested reconsideration and submitted additional evidence.

By decision dated December 6, 2019, OWCP denied modification of its June 27, 2019 decision. In its decision it indicated that aside from three duty status reports (Form CA-17) and work capacity evaluation (Form OWCP-5) reports dated March 27, April 1 and 2, and May 7, 2019, respectively, medical evidence for the period March 30 to May 6, 2019 was not received.

The Board has duly considered the matter and finds that the case is not in posture for a decision. 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.

In its December 6, 2019 decision, OWCP indicated that aside from the three reports it had previously noted, medical evidence from March 30 to May 6, 2019 had not been received in support of the wage-loss compensation claim. However, appellant submitted medical reports dated April 2 to 11, 2019 indicating that she was treated by Dr. Shakeri and Ms. Suhyun, which were received by OWCP on April 29, 2019.

It is crucial that OWCP address all relevant evidence received prior to the issuance of its final decision, as the Board’s decisions are final with regard to the subject matter appealed.2 The Board finds that this case is not in posture for decision, as OWCP did not address the above-noted evidence in its December 6, 2019 decision.3 On remand, following such further development as deemed necessary, OWCP shall review all evidence of record and shall issue a de novo decision.

1
41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
2
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, id.
3
See V.C., Docket No. 16-0694 (issued August 19, 2016).

2

IT IS HEREBY ORDERED THAT the December 6, 2019 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: August 19, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3