T.C. and Department of Justice, Federal Bureau of Investigation, Richmond, VA (Board decision, September 28, 2020)

ECAB remand decision. September 18, 2019 schedule award denial set aside; claim 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

T.C., an FBI special agent with an accepted right ankle sprain, sought a schedule award for permanent impairment. OWCP denied the award after relying on an opinion assigning zero percent impairment, but it failed to address a physician’s report supporting a seven percent rating. The Board set aside OWCP’s September 18, 2019 decision and remanded for review of all relevant evidence and a new decision.

Decision snapshot

• Authority: OWCP duty to consider all timely submitted medical evidence.
• Outcome: September 18, 2019 schedule award denial set aside; claim remanded.
• Key point: OWCP had not considered the physician supported seven percent impairment report.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.C., Appellant
)
)
and ) Docket No. 20-0618
)
Issued: September 28, 2020
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF INVESTIGATION, Richmond, VA, )
Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge JANICE B. ASKIN, Judge

On January 28, 2020 appellant filed a timely appeal from a September 18, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-0618.

On November 16, 2015 appellant, then a 32-year-old special agent, filed a traumatic injury claim (Form CA-1) alleging that on November 13, 2015 he injured his right ankle while in the performance of duty. He explained that he was running a trail on a Marine Corp base when he rolled his right ankle resulting in a popping sensation, pain, swelling, and bruising. Appellant did not stop work. On March 25, 2016 OWCP accepted his claim for a sprain of the right ankle.

In a March 16, 2016 medical report, Dr. Seth Cheatham, a Board-certified orthopedic surgeon, evaluated appellant for right ankle pain. He noted appellant’s November 13, 2015 right ankle sprain and that he was still experiencing intermittent pain. On evaluation Dr. Cheatham discussed a small effusion and opined that appellant may have some type of cartilage injury

On January 17, 2019 appellant filed a claim for a schedule award (Form CA-7).

In a letter dated January 18, 2019, OWCP requested that appellant submit an impairment evaluation from his attending physician in accordance with the sixth edition of the American

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1 It afforded him 30 days to submit additional evidence.

In a February 27, 2019 functional capacity evaluation Elliott Skorupa, a physical therapist, evaluated the residual functional capacity of appellant’s right ankle in relation to his November 13, 2015 right ankle sprain. He referenced Table 16-22 (Ankle Motion Impairments) at page 549 of the A.M.A., Guides to find seven percent impairment for maximum dorsiflexion measured at 10 degrees and zero percent impairment for maximum plantar flexion measured at 24 degrees, which combined to seven percent impairment of the right lower extremity. In a March 11, 2019 medical report, Dr. Cheatham reviewed Mr. Skorupa’s right ankle functional capacity evaluation and countersigned the results, opining that his findings were valid.

On May 22, 2019 OWCP referred the medical record and statement of accepted facts (SOAF) to Dr. Norman Marcus, a Board-certified orthopedic surgeon, for a second opinion examination and an opinion on permanent impairment in accordance with the A.M.A., Guides.

In his June 14, 2019 medical report, Dr. Marcus noted his review of the medical evidence of record and the SOAF, and his own examination findings. Dr. Marcus reasoned that the right ankle injury had not reached maximum medical improvement (MMI) and was therefore not suitable for an impairment rating.

In an August 14, 2019 addendum, Dr. Marcus noted his review of imaging scans. He provided an impairment rating of zero percent as status post ankle sprain.

By decision dated September 18, 2019, OWCP denied appellant’s request for a schedule award.

Having reviewed the case record submitted by OWCP, the Board finds that this case is not in posture for decision.2

In the case of William A. Couch,3 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 September 18, 2019 decision, OWCP denied appellant’s request for a schedule award. While the September 18, 2019 decision discussed Dr. Marcus’ opinion of zero percent permanent impairment, it failed to acknowledge Mr. Skorupa’s4 medical examination findings and Dr. Cheatham’s February 27, 2019 medical report which found seven percent impairment of the

1
A.M.A., Guides (6th ed. 2009).
2
See K.F., Docket No. 19-0888 (issued January 2, 2020); J.J., Docket No. 13-1666 (issued August 18, 2014).
3
41 ECAB 548, 553 (1990).
4
A report from a physician assistant, physical therapist or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

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right lower extremity. As OWCP did not note receipt or consideration of this medical report, it failed to follow its own procedures to properly discuss the relevant medical reports of record.5

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP.6 Because OWCP failed to consider Dr. Cheatham’s February 27 2019 medical report, the Board cannot review such evidence for the first time on appeal.7

For this reason, the case will be remanded to OWCP to properly consider8 all of the evidence of record.9 Following this and other such further development as deemed necessary, OWCP shall issue a decision de novo.10 Accordingly,

5
All evidence submitted should be reviewed and discussed in the decision. Evidence received following development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 2.1401.5(b)(2) (November 2012). 6 See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also Linda Johnson, 45 ECAB 439 (1994).
7
20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).
8
On remand OWCP should request that Dr. Marcus clarify and elaborate on his August 14, 2019 addendum in accordance with the sixth edition of the A.M.A., Guides.
9
M.J., Docket No. 18-0605 (issued April 12, 2019).
10
B.N., Docket No. 17-0787 (issued July 6, 2018).

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IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for proceedings consistent with this order of the Board.

Issued: September 28, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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