B.S. and Department of the Navy, Naval Air Systems Command, Fleet Readiness Center Southeast, Jacksonville, FL (Board decision, September 12, 2023)

ECAB remand decision. The Board set aside OWCP’s June 29, 2022 decision and returned the claim for review of medical reports received before that decision. Entitlement 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). This remand does not resolve benefits.

Plain-English summary

A Navy employee submitted several medical reports before OWCP decided the claim. OWCP’s decision acknowledged only one report and gave no indication that it considered the others. The Board held that OWCP must address relevant evidence already in the record. It set aside the decision and ordered a new review.

Decision snapshot

• Authority: FECA and OWCP’s duty to consider timely medical evidence.
• Outcome: Claim decision set aside; omitted reports remanded for review.
• Key point: OWCP must consider relevant reports received before its final decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.S., Appellant
)
)
and ) Docket No. 22-1145
)
Issued: September 12, 2023
DEPARTMENT OF THE NAVY, NAVAL AIR )
SYSTEMS COMMAND, FLEET READINESS )
CENTER SOUTHEAST, Jacksonville, FL, )
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
JAMES D. McGINLEY, Alternate Judge

On July 25, 2022 appellant filed a timely appeal from a June 29, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-1145.

On June 7, 2019 appellant, then a 53-year-old aircraft painter, filed a traumatic injury claim (Form CA-1) alleging that on June 3, 2019 he sustained left hip strain, left hip, leg and back pain, and left hip and leg contusions when he slipped and fell on a wet floor while in the performance of duty. He stopped work on June 3, 2019, and was released to return to full-time modified work on August 26, 2019. OWCP accepted the claim for left hip muscle, fascia, and tendon strain; strain of the fascia, muscle, and tendon of the posterior left thigh muscle group; left lower leg contusion; and lower back muscle, tendon, and fascia strain. It paid appellant wage-loss compensation on the supplemental rolls from July 19 to August 25, 2019.

The record contains a notification of personnel action (Form SF-50) from the Marine Maintenance Depot Command in Albany, GA, dated May 19, 2021 noting a termination -- expiration of appointment as painting worker effective June 2, 2021.
Appellant filed claims for compensation (Form CA-7) for wage-loss compensation for the periods June 4 to August 2, 2021 and October 16 to December 1, 2021.

By decision dated March 3, 2022, OWCP denied appellant’s claim for recurrence of disability for June 4 to August 2, 2021 and October 16 to December 1, 2021, finding the medical evidence insufficient to establish disability due to a material change/worsening of h is accepted employment-related conditions.

In reports dated March 10 and 18, 2022, Dr. Michael K. McFadden, a Board-certified physiatrist and pain medicine physician, noted that appellant had been referred by Dr. Wolgin for chronic lower back pain and bilateral lower extremity pain associated with moderate spinal stenosis. He found appellant disabled from work.

On April 1, 2022 appellant requested reconsideration.

In an April 12, 2022 letter, Dr. Wolgin noted his disagreement with OWCP’s denial of appellant’s claim, and attached a copy of his December 30, 2021 report. He found appellant totally disabled from performing any work.

Dr. Wolgin, in an April 28, 2022 report, reiterated findings from prior reports. He found appellant disabled from work until further notice.

In a report dated June 9, 2022, Dr. Marla Black Morgan, a Board-certified neurologist, noted appellant’s history of injury and his current complaints of pain and numbness with tingling in his legs. She reviewed appellant’s nerve conduction and electromyograph findings and related that appellant had findings of severe sensory motor polyneuropathy, and changes compatible with, but not indicative of, left mid lumbar polyradiculopathy.

A report dated June 14, 2022 from Dr. Wolgin reiterated that appellant was totally disabled from work at that time.

By decision dated June 29, 2022, OWCP denied modification finding Dr. Wolgin’s April 12, 2022 report insufficient to establish that appellant was disabled from work.

The Board, having duly considered this matter, finds that this case is not in posture for decision.

While OWCP is not required to list every piece of evidence submitted to the record, the record is clear that medical reports were not reviewed by OWCP in its June 29, 2022 decision.1 It only acknowledged receipt of Dr. Wolgin’s April 12, 2022 report. OWCP provided no indication that it had considered and addressed Dr. McFadden’s March 10 and 18, 2022 reports, Dr. Wolgin’s April 28, June 14, 2022 reports, or Dr. Morgan’s June 9, 2022 report, which were received prior to the issuance of OWCP’s June 29, 2022 decision.

1
See D.B., Docket No. 21-0984 (issued December 27, 2021); T.G., Docket No. 19-1930 (issued January 8, 2021).

2
Because Board decisions are final with regard to the subject matter appealed,2 it is crucial that OWCP consider all relevant evidence received prior to the issuance of its final decision.3 As OWCP did not consider relevant evidence, which was submitted prior to and on the day of OWCP’s April 8, 2021 decision, the Board finds that this case is not in posture for decision.4 On remand OWCP shall review all relevant evidence that was of record at the time of the June 29, 2022 decision. Following this and other such further development as deemed necessary, it shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the June 29, 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: September 12, 2023
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2
20 C.F.R. § 501.6(d).
3
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). See also E.D., Docket No. 20-0620 (issued November 18, 2020); Linda Johnson, 45 ECAB 439 (1994) (OWCP must review all evidence relevant to the subject matter and received by OWCP before issuance of its final decision including medical reports received on the same day it issues its decision); William A. Couch, 41 ECAB 548, 553 (1990). 4 See M.N., Docket No. 20-0110 (issued July 7, 2020); Y.B., Docket No. 20-0205 (issued July 7, 2020); H.H., Docket No. 14-1985 (issued June 26, 2015).

3