V.G. and Department of Veterans Affairs, Northport VA Medical Center, Northport, NY (Board decision, October 4, 2023)

ECAB remand decision. The Board set aside OWCP’s February 27, 2023 denial of a lumbar occupational disease claim and returned it for review of a medical report OWCP had omitted. 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 VA pipefitter claimed that work had worsened his accepted lumbar condition. OWCP denied the occupational disease claim after combining related files, but its decision did not address a physician’s May 2021 report linking the condition to work. The Board held that OWCP must consider all timely submitted evidence. It set aside the denial and ordered a new decision after review of the full record.

Decision snapshot

• Authority: FECA and OWCP’s duty to address timely submitted evidence.
• Outcome: Denial set aside; claim remanded for review of omitted medical evidence.
• Key point: OWCP must address relevant evidence received before issuing its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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V.G., Appellant
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)
and ) Docket No. 23-0786
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Issued: October 4, 2023
DEPARTMENT OF VETERANS AFFAIRS,
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NORTHPORT VA MEDICAL CENTER,
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Northport, NY, Employer
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__________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

On May 3, 2023 appellant, through counsel, filed a timely appeal from a February 27, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-0786.

This case has previously been before the Board. 2 The facts and circumstances as presented in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.

On April 9, 2021 appellant, then a 56-year-old pipefitter, filed a notice of recurrence (Form CA-2a). alleging disability from work due to a material change/worsening of his accepted May 24,

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. 2 Order Remanding Case, Docket No. 22-0577 (issued August 22, 2022).
2018 lumbar injury under OWCP File No. xxxxxx542. 3 He related that his progressive symptoms were caused by his previously accepted 2018 lumbar injury and that his condition worsened following his return to work, as there was no intervening cause or new injury.

In a report dated May 25, 2021, Dr. Arjang Abbasi, an osteopathic Board-certified physiatrist, detailed appellant’s history of injury, noting an injury date of May 24, 2018 as appellant’s original injury, and his medical course since that time. He also related that appellant had experienced low back pain while working light duty for approximately four months. Dr. Abbasi diagnosed lumbar disc displacement without myelopathy, lumbar foraminal stenosis, and lumbar radiculopathy. He concluded that appellant’s spinal condition and disability were a direct result of his May 24, 2018 employment injury.

On August 6, 2021 OWCP controverted appellant’s recurrence claim to one for a new occupational disease and assigned OWCP File No. xxxxxx666.

By decision dated January 12, 2022, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish that a diagnosed medical condition causally related to the accepted factors of his federal employment. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

On February 28, 2022 appellant appealed to the Board. By order dated August 22, 2022, the Board set aside the January 12, 2022 decision and remanded the case to OWCP to administratively combine OWCP File Nos. xxxxxx672 and xxxxxx666, followed by a de novo decision.

Upon return of the case record, OWCP administratively combined OWCP File Nos. xxxxxx666 and xxxxxx672, with the latter serving as the master file.

By decision dated February 27, 2023, OWCP denied appellant’s occupational disease claim under OWCP File No. xxxxxx666, finding that the evidence of record was insufficient to establish causal relationship between his diagnosed lumbar conditions and the accepted employment factors. It did not reference Dr. Abassi’s May 25, 2021 report.

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

In the case of William A. Couch,4 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.

3
In OWCP File No. xxxxxx542 OWCP accepted that, on May 24, 2018, appellant sustained a lower back strain, right hip sprain, lumbar radiculopathy, and lumbar intervertebral disc disorder with myelopathy. 4 41 ECAB 548 (1990); see Order Remanding Case, D.Q., Docket No. (issued March 21, 2023); J.R., Docket No. 21-1421 (issued April 20, 2022); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

2
It is crucial that OWCP consider and address 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 consider and address Dr. Abassi’s May 25, 2021 report in its February 27, 2023 decision. 6 On remand, OWCP shall consider and address all relevant evidence of record . Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT that the February 27, 2023 decision of OWCP is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: October 4, 2023
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

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

5
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, id. 6 See Order Remanding Case, B.O., Docket No. 22-0870 (issued March 2, 2023); Order Remanding Case, V.C., Docket No. 16-0694 (issued August 19, 2016).

3