K.Y. and U.S. Postal Service, Mount Pleasant Post Office (Board decision, December 1, 2022)

ECAB remand decision. The Board set aside OWCP's February 17, 2022 claim denial and ordered it to review all evidence before issuing a new decision. Whether the reported condition is compensable 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

K.Y., a postal rural carrier, reported back pain after a motor vehicle accident while working. OWCP denied her injury claim, saying she had provided no medical evidence establishing a related diagnosis. The Board found that OWCP had failed to review a timely submitted emergency department summary that included an acute cervical strain diagnosis. It set aside the denial and directed OWCP to consider all the evidence and decide the claim anew. The Board did not determine whether the condition was work related.

Decision snapshot

• Authority: OWCP's duty to consider evidence received before its final decision, as described in the Board's William A. Couch precedent.
• Outcome: Injury claim denial set aside and remanded for a new decision.
• Key point: OWCP must consider timely medical evidence before denying a claim for lack of a diagnosis.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.Y., Appellant
)
)
and ) Docket No. 22-0743
) Issued: December 1, 2022
U.S. POSTAL SERVICE, MOUNT PLEASANT
)
POST OFFICE, Mount Pleasant, MI, 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
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On April 8, 2022 appellant filed a timely appeal from a February 17, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0743.1

On December 24, 2021 appellant, then a 59-year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on December 20, 2021 she was involved in a motor vehicle accident (MVA) while in the performance of duty. She claimed that her back was very sore due to the MVA. On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty, but noted that the documentation did not specify any work restriction or excuse. Appellant stopped work on December 21, 2021.2

1
The Board notes that, following the February 17, 2022 decision, appellant submitted additional evidence to OWCP and to the Board. 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 additional evidence for the first time on appeal. Id. 2 Appellant also submitted a copy of the Form CA-1 dated December 29, 2021.
 Appellant submitted evidence to OWCP. In a December 23, 2021 after visit summary, Dr. Amy R. Kuechenmeister, a Board-certified emergency medicine specialist, related that appellant was seen for a motor vehicle collision and underwent computerized tomography (CT) scans of the thoracic spine and cervical spine, as well as a CT angiogram of the head and neck. She diagnosed pulmonary nodule, MVA, and acute cervical strain and provided discharge instructions.

In a development letter dated January 12, 2022, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of evidence needed to establish her claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.

By decision dated February 17, 2022, OWCP denied appellant’s traumatic injury claim, finding that she did not submit any medical evidence to establish a diagnosed medical condition causally related to the accepted December 20, 2021 employment incident. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

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

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. While OWCP is not required to list every piece of evidence submitted to the record, the record is clear that the December 23, 2021 after visit summary from Dr. Kuechenmeister was not referenced or reviewed by OWCP in its February 17, 2022 decision.4

It is crucial that OWCP addresses and considers all evidence received prior to the issuance of its final decision, as the Board’s decisions are final with regard to the subject matter appealed. 5 The Board finds that this case is not in posture for decision as OWCP did not review the above- noted evidence in its February 17, 2022 decision.6

On remand, OWCP shall review all evidence of record and, following this and any other such further development as deemed necessary, it shall issue a de novo decision.7 Accordingly,

3
41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
4
See J.N., Docket No. 21-0086 (issued May 17, 2021); C.D., Docket No. 20-0168 (issued March 5, 2020).
5
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 3.
6
See V.C., Docket No. 16-0694 (issued August 19, 2016).
7
B.N., Docket No. 17-0787 (issued July 6, 2018).

2
 IT IS HEREBY ORDERED THAT the February 17, 2022 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: December 1, 2022
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

3