D.T. and Department of Veterans Affairs, VA Medical Center, Seattle, WA (Board decision, December 15, 2023)

ECAB remand decision. The Board set aside OWCP's April 21, 2023 denial of reconsideration and returned the case for findings of fact and reasons addressing the claimant's arguments and evidence. Her request for reconsideration 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).

Plain-English summary

A VA nurse sought compensation for time away from work after a right wrist injury sustained while repositioning a patient. OWCP denied compensation for the disputed period because it found that an offered light-duty assignment met her restrictions. The nurse later requested reconsideration and submitted a detailed memorandum and additional evidence. OWCP denied the request as untimely without analyzing whether her submissions showed clear evidence of error. The Board set aside that denial and ordered OWCP to explain its findings and issue a new decision on the reconsideration request. The Board did not decide whether she was entitled to compensation for the disputed period.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126.
• Outcome: Reconsideration denial set aside; case remanded for a reasoned new decision.
• Key point: OWCP must address the arguments and evidence submitted with the reconsideration request when explaining its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.T., Appellant
)
)
and ) Docket No. 23-0951
)
Issued: December 15, 2023
DEPARTMENT OF VETERANS AFFAIRS, VA )
MEDICAL CENTER, Seattle, WA, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

On July 9, 2023 appellant filed a timely appeal from an April 21, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0951.1

On August 3, 2020 appellant, then a 49-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on July 27, 2020 she sustained right wrist sprain when repositioning a patient in bed while in the performance of duty. OWCP initially accepted her claim for right wrist strain, later expanding the acceptance of her claim to include right wrist sprain, complex tear of the triangular fibrocartilage of the right wrist, right wrist and hand subluxation, right elbow lateral epicondylitis, and right shoulder adhesive capsulitis. It paid appellant on the supplemental rolls for intermittent disability commencing March 8, 2021.

By decision dated October 5, 2021, OWCP denied appellant’s claim for compensation for disability from work commencing July 26, 2021. It found that she was offered a temporary light- duty assignment beginning July 26, 2021, but she refused the assignment. OWCP found that the light-duty assignment accommodated appellant’s contemporaneous work restrictions. It also

1
The Board notes that, following the April 21, 2023 decision, appellant submitted additional evidence with her appeal 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. found that she would be paid compensation for the difference between her rate of pay in the light- duty position and her date-of-injury position.

Appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on February 15, 2022. By decision dated March 30, 2022, the hearing representative affirmed OWCP’s October 4, 2021 decision.

OWCP continued to receive medical evidence.

On March 31, 2023 OWCP scanned into iFECS appellant’s request for reconsideration of its March 30, 2022 decision. With her request, appellant enclosed a 15-page memorandum arguing that OWCP had erred in its March 30, 2022 decision, as it contained flawed findings of fact and law. She stated that the decision erroneously concluded that work restrictions from a physician would not have prevented her from using two hands to wash; that the offer of limited duty was not in accordance with OWCP requirements; that OWCP had ignored the “personal comfort doctrine”; that the offer of limited duty was subject to conditions not fulfilled by the employing establishment; that OWCP had incorrectly overlooked the medical necessity of provision of travel arrangements due to her conditions; that OWCP had improperly found that there was no corroborating evidence supporting her claim that she was not provided with assistance; that the information provided to OWCP by the employing establishment were provided with no supporting evidence; and that the offer of limited duty was misleading for someone unfamiliar with the employing establishment’s policies, protocols, and setting. Appellant submitted evidence on reconsideration including breakroom protocols; e-mail exchanges regarding her limited, light-duty assignment offer; an April 2019 memorandum regarding low-level standardization for noncritical reusable medical equipment; a March 29, 2021 memorandum regarding the donning and doffing of personal protective equipment for special isolation during the COVID-19 pandemic; an April 27, 2021 note detailing the employing establishment’s COVID-19 emergency operations standard operating procedures; a notification of personnel action dated August 6, 2021; January 4, 2022 COVID-19 personal protective equipment recommendations; and a May 23, 2023 work capacity evaluation for musculoskeletal conditions (Form OWCP-5c).

By decision dated April 21, 2023, OWCP summarily denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

The Board finds that this case is not in posture for decision.

OWCP summarily denied appellant’s request for reconsideration without complying with the review requirements of FECA and its implementing regulations. 2 Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation. 3 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a statement of reasons. 4 As well, OWCP’s

2
D.R., Docket No. 21-1229 (issued July 6, 2022); M.D., Docket No. 20-0868 (issued April 28, 2021); T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607. 3 5 U.S.C. § 8124(a).
4
20 C.F.R. § 10.126.

2 procedures provide that the reasoning behind its evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it. 5

In support of her request for reconsideration, appellant submitted a 15-page memorandum arguing that OWCP had erred in its March 30, 2022 decision, as it contained flawed findings of fact and law. She also submitted evidence as outlined above. In denying appellant’s reconsideration request, OWCP failed to analyze whether this argument and evidence submitted on reconsideration was sufficient to demonstrate clear evidence of error. It did not address the argument and evidence submitted in support of her reconsideration request. 6

The Board finds that OWCP failed to properly explain the findings with respect to the issue presented so that appellant could understand the basis for the decision. The Board will, therefore, set aside OWCP’s April 21, 2023 decision and remand the case for findings of fact and a statement of reasons, to be followed by an appropriate decision regarding her reconsideration request. 7 Accordingly,

IT IS HEREBY ORDERED THAT the April 21, 2023 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 15, 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
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).
6
M.D., Docket No. 20-0868 (issued April 28, 2021); see also Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016). 7 See Order Remanding Case, D.R., supra note 2; T.P., Docket No. 19-1533 (issued April 30, 2020).

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