S.G. and Department of Veterans Affairs, Ralph H. Johnson VA Medical Center (Board decision, March 24, 2025)

ECAB remand decision. The Board reversed OWCP's refusal to reconsider and returned the injury claim for a merits 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).

Plain-English summary

A VA worker sought reconsideration of a back injury claim and submitted new medical evidence. OWCP treated her filing as an attempt to reconsider its prior nonmerit denial. The Board found she had timely sought review of the underlying merits and directed OWCP to issue an appropriate decision.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Nonmerit denial reversed; merits review ordered.
• Key point: OWCP should have addressed the timely request concerning the underlying claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.G., Appellant
)
)
and ) Docket No. 23-1080
)
Issued: March 24, 2025
DEPARTMENT OF VETERANS AFFAIRS,
)
RALPH H. JOHNSON VA MEDICAL CENTER, )
Charleston, SC, Employer
)
__________ )

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

ORDER REVERSING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 10, 2023 appellant filed a timely appeal from a March 15, 2023 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-1080.

On February 14, 2022 appellant, then a 49-year-old food service worker, filed a traumatic injury claim (Form CA-1) alleging that on January 26, 2022 she sprained/strained her left hip, lower back, and left leg when she swung a food cart to clear the way for a patient to be transported to intensive care while in the performance of duty.

A magnetic resonance imaging (MRI) scan obtained on February 8, 2022 of appellant’s lumbar spine indicated discogenic degenerative changes at L4-5 with mild canal stenosis and moderate neural foraminal narrowing on the left. The diagnostic report noted that appellant underwent lumbar spine surgery in 2018.

In an undated letter, Dr. Zachary Hubbard, a neurosurgery resident at the employing establishment, diagnosed herniated lumbar disc at L4-5.
By decision dated April 19, 2022, OWCP denied appellant’s claim, finding that the medical evidence of record was insufficient to establish causal relationship between her diagnosed condition and the accepted January 26, 2022 employment incident.

On May 19, 2022 appellant requested reconsideration.

In progress notes dated May 31, 2022, Dr. Stephen Kalhorn, a Board-certified neurosurgeon, treated appellant for complaints of radicular pain and lower back pain. He noted that an MRI scan demonstrated disc herniation at L4-5, and that an electromyogram (EMG) demonstrated chronic neurogenic changes. On June 7, 2022 Dr. Kalhorn stated that appellant was being seen to follow up on a translaminar lumbar epidural steroid injection on May 28, 2022. He noted a known history of left-sided L4-5 discectomy in years past. Dr. Kalhorn further stated that appellant had an episode at work in January that led to severe lower back and left lower extremity pain. On physical examination, he observed severe pain limitation and left-sided foot drop, as well as numbness throughout the left lower extremity. Dr. Kalhorn recommended left-sided open microdiscectomy. On June 17, 2022 he opined that, within a reasonable degree of medical certainty, appellant’s diagnosed left-sided L4-5 disc herniation and leg pain were the result of the work-related incident of quickly pushing a large cart out of the way of ongoing medical staff in January 2022.

By decision dated July 22, 2022, OWCP denied modification of its April 19, 2022 decision.

Appellant submitted progress notes from Sarah Havers, a nurse practitioner, dated July 14, 2022.

On August 29, 2022 appellant requested reconsideration.

By decision dated November 23, 2022, OWCP denied modification of its July 22, 2022 decision.

On January 20, 2023 appellant requested reconsideration.

By decision dated January 30, 2023, OWCP denied appellant’s request for reconsideration, pursuant to 5 U.S.C.§ 8128(a).

OWCP subsequently received additional medical evidence, and on March 12, 2023, appellant again requested reconsideration of the merits of her claim .

By decision dated March 15, 2023, OWCP denied appellant’s March 12, 2023 request for reconsideration, noting that appellant requested reconsideration of the January 30, 2023 nonmerit decision and, therefore, the only appeal option was to the Board.

The Board, having duly considered this matter, finds that OWCP improperly denied appellant’s request for reconsideration of the merits of her claim.

Following OWCP’s January 30, 2023 nonmerit decision, appellant again requested reconsideration of the merits of her claim and submitted additional medical evidence. OWCP, however, inadvertently found that she had requested reconsideration of the January 30, 2023

2 nonmerit decision and, therefore, the only appeal option was to the Board. As appellant submitted additional medical evidence and requested reconsideration of the merits of her claim, the proper subject of modification was the November 23, 2023 merit decision. As appellant’s request for reconsideration was filed within one year of the November 23, 2023 merit decision, it was timely filed.1 The Board shall therefore remand the case for OWCP to issue an appropriate decision on the merits of her claim. Accordingly,

IT IS HEREBY ORDERED THAT the March 15, 2023 decision of the Office of Workers’ Compensation Programs is reversed and the case is remanded for further proceedings consistent with this order of the Board.

Issued: March 24, 2025
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

1
20 C.F.R. § 10.607(a); see also Order Remanding Case, B.E., Docket No. 22-0283 (issued February 10, 2023).

3