J.D. and U.S. Postal Service, Post Office, Chicago, IL (Board decision, February 24, 2021)

ECAB remand decision. The Board set aside OWCP’s decision and remanded J.D.’s case for further proceedings. It did not finally award compensation. 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

J.D. sought reconsideration of a denied upper extremity schedule award. OWCP discussed only two recent reports from her physician and overlooked reports from March 2017 through March 2018 that described her accepted conditions as active and disabling. Those reports were already in the record from a prior Board appeal. The Board set aside the reconsideration decision and ordered OWCP to review all relevant evidence.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: September 4, 2019 reconsideration decision set aside; case remanded.
• Key point: OWCP had to consider all relevant reports received before its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.D., Appellant
)
)
and ) Docket No. 20-0838
) Issued: February 24, 2021
U.S. POSTAL SERVICE, POST OFFICE,
)
Chicago, IL, 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
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 1, 20201 appellant filed a timely appeal from a September 4, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as Docket No. 20-0838.2

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 4, 2019, the date of OWCP’s decision, was March 2, 2020. Since using March 5, 2020, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R.
§ 501.3(f)(1). As appellant’s appeal request was postmarked March 1, 2020, the appeal is therefore timely. 2 The Board notes that, following the September 4, 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. This case has previously been before the Board.3 The facts and circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On November 14, 1985 appellant, then a 28-year-old distribution clerk, filed a traumatic injury claim (Form CA-1) alleging bilateral wrist injuries. OWCP accepted the claim for de Quervain’s tenosynovitis of the right wrist and right radial tenosynovitis. It subsequently expanded its acceptance of the claim to include bilateral carpal tunnel syndrome. Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon, performed a left median nerve release on April 20, 2006 and a right median nerve release on December 15, 2006.

On June 20, 2008 appellant filed a schedule award claim (Form CA-7). She provided a July 14, 2008 impairment evaluation by Dr. Chmell utilizing the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)4 then in effect. Following development of the medical evidence, OWCP denied the claim, by decisions dated August 14, 2014 and April 17, 2015, based on the opinion of Dr. Jaroslaw Dzwinyk, a Board-certified orthopedic surgeon and impartial medical examiner, who found no permanent impairment of either upper extremity. Appellant then appealed to the Board. By decision dated December 14, 2015,5 OWCP affirmed OWCP’s April 17, 2015 decision.

On December 6, 2016 appellant requested reconsideration, contending that OWCP did not consider neurologic impairment to her upper extremities originating in the spine. By decision dated February 27, 2017, OWCP denied modification of its April 17, 2015 decision. Appellant again appealed to the Board.

During the pendency of the prior appeal, appellant submitted additional medical reports from Dr. Chmell dated March 11, 2017 through March 22, 2018, opining that the accepted bilateral carpal tunnel syndrome and right radial tenosynovitis, as well as other accepted conditions affecting the lower extremities, remained active and disabling. In his March 22, 2018 report, Dr. Chmell noted that she complained of cervical radiculopathy with radiation into both upper extremities.

3
Docket No. 17-1800 (issued May 25, 2018); Docket No. 15-1286 (issued December 14, 2015); Docket No.
10-2126 (issued July 5, 2011). OWCP assigned the present claim OWCP File No. xxxxxx055. This claim is a master file and has been doubled with two other accepted claims. Under OWCP File No. xxxxxx273, on September 11, 1978 appellant filed a notice of traumatic injury (Form CA-1) alleging that she had sustained a right shoulder injury on September 8, 1978 when she fell out of a chair while she was performing her federal employment duties. OWCP accepted that claim for contusion of the right shoulder and upper arm, contusion of the face, scalp, neck, and headache. Under OWCP File No. xxxxxx862, appellant filed a notice of occupational disease (Form CA-1) on August 23, 2005 alleging that she sustained a right rotator cuff tear, herniated cervical disc with degenerative disc disease, and degenerative lumbar disease. OWCP accepted this claim for herniated cervical disc at C5-6, right rotator cuff tear, and lumbar strain. It subsequently expanded acceptance of the claim to include bilateral aggravation of osteoarthritis of the hips. 4 A.M.A., Guides (5th ed. 2001).
5
Docket No. 15-1286 (issued December 14, 2015).

2
 By decision dated May 25, 2018,6 the Board affirmed OWCP’s February 27, 2017 decision, denying appellant’s claim for a schedule award for permanent impairment of the bilateral upper extremities, as Dr. Chmell had not provided an updated impairment rating in accordance with the sixth edition of the A.M.A., Guides.7

On May 17, 2019 appellant requested reconsideration, contending that OWCP had not fully developed the medical evidence regarding cervical radiculopathy affecting her upper extremities.

In reports dated March 21, 2019, Dr. Chmell noted continued pain, paresthesias, and weakness in both hands. In a letter dated April 4, 2019, he contended that OWCP had not authorized him to perform an impairment rating.8

By decision dated September 4, 2019, OWCP denied appellant’s request for reconsideration as Dr. Chmell’s March 21 and April 4, 2019 reports were insufficient to warrant a review of the merits of the claim.9

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,10 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 4, 2019 decision, OWCP indicated that the only new medical evidence received were reports dated March 21 and April 4, 2019 by Dr. Chmell. However, during the pendency of the prior the Board appeal under Docket No. 17-1800, appellant had submitted reports from him dated March 11, 2017 through March 22, 2018. OWCP did not reference receipt nor provide any discussion of these reports, several of which addressed the accepted upper extremity conditions.

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. The Board finds, therefore, that this case is not in posture for decision, as OWCP did not address the above-noted evidence in its September 4, 2019 decision.11 On remand OWCP shall review all

6
Docket No. 17-1800 (issued May 25, 2018).
7
A.M.A., Guides (6th ed. 2009).
8
Appellant also submitted documents previously of record regarding grievances and a class action against the employing establishment. 9 OWCP actually referred to the Board’s May 25, 2018 decision. However, OWCP has no jurisdiction to review a Board decision. The decisions and orders of the Board are final as to the subject matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). Appellant had 30 days from the date of the Board’s June 14, 2018 decision to file a petition for reconsideration with this Board of its decision. Id. at § 501.7. See also C.M., Docket No. 19-1211 (issued August 5, 2020); B.B., Docket No. 14-0464 (issued June 4, 2014). 10 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
11
O.O., Docket No. 20-0142 (issued September 29, 2020); see also V.C., Docket No. 16-0694 (issued August 19, 2016).

3 evidence of record and, following any further development as it deems necessary, it shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the September 4, 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: February 24, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4