A.N. and Department of Veterans Affairs, Southern Arizona VA Health Care System, Tucson, AZ (Board decision, June 16, 2021)

ECAB final decision. The Board set aside OWCP’s decision and remanded the claim expansion request. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A.N. sought to add a cervical herniated disc to an accepted workplace injury claim. OWCP denied expansion without explaining why a second opinion physician’s report did not support it. The Board found the decision lacked the required findings and statement of reasons. It remanded for a properly explained new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126.
• Outcome: April 21, 2020 decision set aside; case remanded.
• Key point: OWCP had to explain its treatment of relevant medical evidence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.N., Appellant
)
)
and ) Docket No. 20-1603
) Issued: June 16, 2021
DEPARTMENT OF VETERANS AFFAIRS,
)
SOUTHERN ARIZONA VA HEALTH CARE
)
SYSTEM, Tucson, AZ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Kelley Craig, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

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

On September 8, 2020 appellant, through counsel, filed a timely appeal from an April 6, 2020 merit decision and from a purported April 21, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-1603.

On August 17, 2016 appellant, then a 59-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging on that date she developed a headache, neck pain, and spasms when pushing an overweight patient in a wheelchair and helping him to the restroom while in the performance of duty. She stopped work on August 25, 2016 and returned to work on September 19, 2016. On August 31, 2016 OWCP accepted appellant’s claim for cervical sprain.

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. Beginning October 24, 2016, appellant’s attending physicians, Drs. Ty Endean and Thomas Martens, osteopaths, reported the additional condition of herniated cervical disc.

On September 26, 2019 OWCP referred appellant, a statement of accepted facts, and a list of questions to Dr. Michael A. Steingart, an osteopath and sports medicine specialist, for a second opinion examination regarding her accepted cervical condition.

On October 16, 2019 appellant, through counsel, requested that the acceptance of her claim be expanded to include the additional condition of herniated cervical disc.

By decision dated April 6, 2020, OWCP denied appellant’s request to expand her claim to include herniated cervical disc.

On April 7, 2020 appellant, through counsel, requested that the acceptance of appellant’s claim be expanded to include the additional conditions of herniated cervical disc at C5-6 and aggravation of her herniated disc at C4-5.

OWCP received Dr. Steingart’s November 6, 2019 second opinion report on April 16, 2020. Dr. Steingart diagnosed chronic sprain/strain with central disc herniation at C5-6 with myofascial pain, finding that the conditions were causally related to the accepted employment injury.

In an April 21, 2020 letter, OWCP provided appellant with Dr. Steingart’s November 6, 2019 second opinion report and concluded that, “We do not find this report sufficient to overturn the [April 6, 2020] decision on our motion. If you disagree with the [April 6, 2020] decision report, please review the appeal rights attached.”

The Board’s Rules of Procedure provide that the Board has jurisdiction to consider and decide appeals from the final decision of OWCP in any case arising under FECA. In considering whether a document constitutes a final decision, it is not the form, but the content and the intention of OWCP that is determinative.2

The April 21, 2020 letter notes review of Dr. Steingart’s November 6, 2019 report by OWCP. It attached a copy of his report, but did not make findings regarding his conclusions and diagnoses.

The April 21, 2020 letter made an adverse finding with respect to appellant’s request for expansion of her claim and there is no indication that the finding was interlocutory or otherwise pending further development. Accordingly, the Board finds that the April 21, 2020 letter constitutes a final decision on the merits of appellant’s claim for expansion of her accepted conditions and is, therefore, an appealable decision pursuant to 20 C.F.R. §§ 501.2(c) and 502.3(a).

2
See Henry F. Dyer, Docket No. 05-452 (issued May 13, 2005) (the Board held that a July 22, 2004 letter with no appeal rights attached constituted a final decision. The letter noted that the medical evidence established 32 percent binaural hearing loss, but that appellant had previously received schedule awards for 53 percent binaural hearing loss and “there is not an increased hearing impairment documented at this time).” Ralph Edmond Zollars, 5 ECAB 617, 618 (1953) and the cases cited therein.

2
 Section 8124(a) of the Federal Employees’ Compensation Act (FECA) and section 10.126 of the implementing regulations3 require that final decisions of OWCP contain findings of fact and a statement of reasons. A decision denying a claim should contain a correct description of the basis for the denial in order that the parties of interest have a clear understanding of the precise defect of the claim and the kind of evidence which would overcome it.4 The Board finds that OWCP’s April 21, 2020 decision was incomplete as it did not contain findings regarding the medical evidence from Dr. Steingart, nor did it provide a statement of reasons as to why it determined that his report was not entitled to be accorded weight or probative value as it was based on a proper factual background and a physical examination. Appellant was, therefore, not apprised of the deficiencies OWCP had found in Dr. Steingart’s second opinion report. Because the April 21, 2020 decision does not explain the basis for the denial of expansion of her claim to include cervical herniated disc at C5-6 as diagnosed by him or the findings of fact reached therein, the Board finds that OWCP has not fulfilled its responsibility under section 8124 of FECA and section 10.126 of its implementing regulations in regard to her formal request for expansion of the acceptance of her claim to include additional diagnosed conditions.

Accordingly, the case must be remanded to OWCP for a proper decision, which includes findings of fact and a clear and precise statement regarding appellant’s request for expansion of her accepted conditions. Following further development as OWCP deems necessary, it shall issue a de novo decision.5

3
5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126, respectively.
4
K.K., Docket No. 19-0652 (issued September 19, 2019); L.R., Docket No. 15-0235 (issued December 21, 2015);
Patrick Michael Duffy, 43 ECAB 280 (1991).
5
Consequently, in view of the Board disposition of the April 21, 2020 decision, the Board will not address the April 6, 2020 decision.

3
 IT IS HEREBY ORDERED THAT the April 21, 2020 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: June 16, 2021
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

4