K.S. and U.S. Postal Service, New Orleans Post Office (Board decision, February 22, 2024)

ECAB remand decision. The Board set aside the medication denial because OWCP omitted a timely doctor’s submission. The underlying claim 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 postal employee sought continued coverage for Esgic tablets used to treat symptoms of an accepted injury. His doctor submitted a medication authorization request and supporting report before OWCP denied coverage. OWCP did not address those documents in its decision. The Board set the denial aside and ordered OWCP to review the full record and issue a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Medication authorization denial set aside and remanded.
• Key point: OWCP had to consider the doctor’s request received before its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.S., Appellant
)
)
and ) Docket No. 23-1085
)
Issued: February 22, 2024
U.S. POSTAL SERVICE, POST OFFICE, )
New Orleans, LA, 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
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 31, 2023 appellant filed a timely appeal from a February 9, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-1085.

On November 21, 1989 appellant, then a 32-year-old federal employee, sustained a traumatic injury while in the performance of duty. OWCP accepted the claim for neck sprain, intervertebral disc disorder with myelopathy of the cervical region, and tension headache.

By letter dated May 16, 2022, Optum, OWCP’s pharmacy benefits manager (PBM), advised appellant that it was managing pharmacy benefits for injured employees covered under the Federal Employees’ Compensation Act1 (FECA). It noted that a drug formulary, or list of medications that a claimant was eligible to receive under FECA, had gone into effect on December 9, 2021. The PBM informed appellant that his currently prescribed drug Esgic Tablets was not allowed under its formulary. It requested that he notify his physician to determine if there was an alternative medication available or, if not, to have his physician complete a Prior

1
5 U.S.C. § 8101 et seq.
Authorization Request Form (PARF) to request continued use of the nonformulary medicine. The PBM indicated that it would allow the Esgic Tablets until December 8, 2022.

On December 29, 2022 OWCP again notified appellant that he was receiving medication for his employment injury through its PBM. It indicated that it now used a drug formulary, or list of medications covered by FECA, to ensure the safe and effective use of medication. OWCP asserted that its PBM had notified appellant and his provider on May 16, July 6, and October 14, 2022 that Esgic Tablets were not covered under the formulary, and had requested a PARF if there were no appropriate alternative medications. It informed him that this was his final notice to allow time for his prescriber to transition him to an alternative medication covered by the formulary or submit a PARF if his prescriber believed that the medication was currently necessary. OWCP indicated that coverage for Esgic Tablets would continue until March 8, 2023.

On February 6, 2023 Dr. James N. Domingue, a Board-certified clinical neurophysiologist, submitted a PARF, completed on January 23, 2023, and attached documentation, including a February 6, 2023 report, requesting use of the brand name prescription, Esgic Tablets. He explained that Esgic Tablets had been effective in treating appellant’s symptoms. Moreover, appellant tried a generic brand, but the medication failed to treat his symptoms and tension-related migraines.

By decision dated February 9, 2023, OWCP denied authorization for the medication Esgic Tablets, effective March 9, 2023, finding that it was not covered by the FECA Drug Formulary effective November 23, 2021, and that all prescriptions were required to comply with FECA’s formulary by December 9, 2022. It noted that it had afforded appellant 30 days to respond or have his prescriber submit a PARF, however, he failed to submit any additional evidence in response to the December 29, 2022 development letter.

The Board, having duly considered this matter, finds that the 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 the submitted documents of Dr. Domingue, including a request for medication authorization and a February 6, 2023 report, were not reviewed by OWCP in its February 9, 2023 decision.4 As it did not consider and address these medical reports, it failed to follow its own procedures. 5

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).

2
 As the Board’s decisions are final as to the subject matter appealed, 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. 6 The Board finds that this case is not in posture for decision as OWCP did not review the above-noted evidence in its February 9, 2023 decision.7 On remand, OWCP shall review all evidence of record. Following this and other such further development as deemed necessary, it shall issue a de novo decision.8 Accordingly,

IT IS HEREBY ORDERED THAT the February 9, 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: February 22, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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 Order Remanding Case, 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).

3