T.J. and Department of Homeland Security, U.S. Customs & Border Protection, U.S. Border Patrol, Douglas, AZ (Board decision, August 4, 2023)

ECAB remand decision. The Board set aside OWCP's November 8 and 16, 2022 decisions and remanded for review of the full medical record and a new decision. 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

A Border Patrol agent reported a head injury while on duty and submitted hospital records and a neurologist's report describing his symptoms. OWCP accepted that the incident occurred but denied the injury claim for lack of a medical causal link. The Board found that OWCP had not discussed the neurologist's report or several records from the agent's hospital stay before denying the claim. It set aside both the denial and a later refusal to reconsider, then ordered OWCP to review all the evidence and issue a new decision. Whether the injury qualifies for compensation remains unresolved.

Decision snapshot

• Authority: FECA evidence review in injury claims, 5 U.S.C. § 8101 et seq.
• Outcome: Two OWCP decisions set aside; case remanded for full evidence review.
• Key point: OWCP must address relevant medical evidence received before it decides a claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.J., Appellant
)
)
and ) Docket No. 23-0295
)
Issued: August 4, 2023
DEPARTMENT OF HOMELAND SECURITY, )
U.S. CUSTOMS & BORDER PROTECTION, )
U.S. BORDER PATROL, Douglas, AZ, Employer )
__________ )

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

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On December 16, 2022 appellant filed a timely appeal from a November 8, 2022 merit decision and a November 16, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0295.1

On September 20, 2022 appellant, then a 31-year-old border patrol agent, filed a traumatic injury claim (Form CA-1) alleging that on September 13, 2022 he sustained a head trauma leading to amnesia, right temple abrasion, right cheek bone abrasion, redness on the left back of his head, large bruise on the inside back of his arm, left lower back bruised bottom, and back pain when he was on patrol while in the performance of duty. On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty. Appellant stopped work on the date of injury. He submitted photographs documenting his head injury.

1
The Board notes that, following the November 16, 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. In a September 28, 2022 development letter, OWCP notified appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the requested evidence.

In support of his claim, appellant submitted emergency department medical and diagnostic reports dated September 13 through 16, 2022. The record reflects that on September 13, 2022 he was brought into the emergency department by his coworkers due to sudden memory loss and confusion. Appellant’s coworkers also noted a faint abrasion to appellant’s right temple and right shin. Appellant complained of a severe frontal headache and was experiencing memory issues. He was admitted to the hospital on September 13, 2022 for additional evaluation and testing, and subsequently discharged on September 16, 2022. Appellant also submitted various medical reports, physician consultations, and diagnostic studies dated September 13 through 16, 2022 documenting his inpatient hospital stay and treatment for his injuries.

In an October 20, 2022 medical report, Dr. George Wang, a Board-certified neurologist, reported that appellant was referred for a consultation due to headache, dizziness, and memory loss from an on-the-job injury. He reported that appellant complained of continued headache following a claimed September 13, 2022 employment incident when it was suspected that appellant was hit on the right side of the head as he reported experiencing loss of consciousness. Appellant complained of a headache on the right side of his head with throbbing and pressure. He also complained of nausea, dizziness, memory loss, slow motor function, visual disturbances, blurred vision, photophobia, and phonophobia with his headaches. Dr. Wang provided findings on physical examination and reviewed diagnostic testing. He diagnosed unspecified headache and concussion without loss of consciousness initial encounter. Dr. Wang opined that appellant’s injury was typical for postconcussive headache with a component of tension headache as appellant was also experiencing dizziness, memory loss, amnesia, and slow motor function. He explained that appellant was experiencing frequent headache attacks and neurological examinations revealed no focal findings. Dr. Wang noted no evidence of increased intracranial pressure and no evidence of pseudotumor cerebri and temporal arteritis.

In a duty status report (Form CA-17) dated October 20, 2022, Dr. Wang diagnosed postconcussive syndrome and restricted appellant from returning to work.

By decision dated November 8, 2022, OWCP accepted that the September 13, 2022 employment incident occurred, as alleged, but denied appellant’s claim, finding that the medical evidence of record was insufficient to establish that his diagnosed medical condition was causally related to the accepted employment incident.

On November 15, 2022 appellant, through his then-representative, requested reconsideration of the November 8, 2022 decision. The then-representative provided a description of the September 13, 2022 employment incident and argued that the employing establishment and hospital evidence was sufficient to establish appellant’s claim. He also referenced Dr. Wang’s October 20, 2022 medical report, as evidence of a work-related traumatic injury as the physician explained that the description of appellant’s headache was typical for postconcussive headache with a component of tension headache.

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 By decision dated November 16, 2022, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

The Board, having duly considered this matter, 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 and address 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 Dr. Wang’s October 20, 2022 medical report was not referenced or reviewed by OWCP in its November 8, 2022 decision. 4 The record also reflects submission of medical reports, physician consultations, and diagnostic studies dated September 13 through 16, 2022 during appellant’s inpatient hospital visit. However, OWCP’s November 8, 2022 decision failed to consider and address these reports, only briefly noting receipt of a September 13, 2022 medical report. As it did not consider and address these medical reports, it failed to follow its own procedures by properly discussing all the relevant medical reports of record.5

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. 6 The Board finds that this case is not in posture for decision as OWCP did not review the above- noted evidence in its November 8, 2022 decision. 7 On remand, OWCP shall review all evidence of record. Following this and any other such further development as deemed necessary, it shall issue a de novo decision.8 Accordingly,

2
Order Remanding Case, K.Y., Docket No. 22-0743 (issued December 1, 2022).
3
41 ECAB 548 (1990); see Order Remanding Case, J.R., Docket No. 21-1421 (issued April 20, 2022); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
4
See Order Remanding Case, J.N., Docket No. 21-0086 (issued May 17, 2021); Order Remanding Case, C.D., Docket No. 20-0168 (issued March 5, 2020). 5 E.P., Docket No. 20-0655 (issued March 17, 2021).
6
See Order Remanding Case, 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. 7 See V.C., Docket No. 16-0694 (issued August 19, 2016).
8
See Order Remanding Case, K.P., Docket No. 21-1065 (issued March 30, 2022); B.N., Docket No. 17-0787 (issued July 6, 2018).

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 IT IS HEREBY ORDERED THAT the November 8 and 16, 2022 decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings consistent with this order of the Board. 9

Issued: August 4, 2023
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9
As this case is remanded for further proceedings, the issue considered in the November 16, 2022 denial of appellant’s request for reconsideration of the merits of his claim is rendered moot.

4