P.B. and Department of Veterans Affairs, Audie L. Murphy Memorial Veterans’ Hospital (Board decision, May 22, 2024)

ECAB remand decision. The Board set aside OWCP’s denial of disability compensation because OWCP did not address medical reports and other evidence received before issuing its decision. The case was remanded for review of the complete record, any needed development, and a de novo 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).

Plain-English summary

A VA vocational rehabilitation specialist sought wage-loss compensation after a motor vehicle accident. OWCP’s denial discussed only one clinic note even though it had received reports addressing his diagnoses and disability, including reports from Dr. Scribbick and Dr. Allen. The Board found that OWCP had to consider and discuss all relevant evidence received before its decision, set the denial aside, and remanded for a complete review.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 501.2(c).
• Outcome: Disability compensation denial set aside and remanded for complete evidence review and a de novo decision.
• Key point: OWCP must address all relevant evidence properly submitted before issuing a final decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.B., Appellant
)
)
and ) Docket No. 24-0368
)
Issued: May 22, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
AUDIE L. MURPHY MEMORIAL VETERANS’ )
HOSPITAL, San Antonio, TX, Employer )
__________ )

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

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On February 19, 2024 appellant filed a timely appeal from an August 28, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards assigned the appeal Docket No. 24-0368.

On March 16, 2023 appellant, then a 58-year-old vocational rehabilitation specialist, filed a traumatic injury claim (Form CA-1) alleging that on February 15, 2023 he sustained multiple injuries during a motor vehicle accident (MVA) 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 February 15, 2023. OWCP accepted the claim for neck strain, right wrist and hand strain, head contusion, right ankle sprain, and right foot sprain.

In a report dated February 15, 2023, Dr. Arie T. Scribbick, a specialist in emergency medicine, noted that appellant had been involved in an MVA. Dr. Scribbick diagnosed muscle strain, and advised appellant to return to work on February 17, 2023.

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The Board notes that, following the August 28, 2023 decision, OWCP received additional evidence. 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.
A work status note from an emergency department with an illegible signature dated February 15, 2023 indicated that appellant was off work through February 18, 2023 for orthopedic musculoskeletal pain management.

An attending physician’s report (Form CA-20) by Dr. Rory Allen, an osteopathic family medicine specialist, dated May 19, 2023, indicated the following diagnoses: headache, cervical and lumbar injury, bilateral shoulder sprain, jaw sprain, bilateral foot sprain, bilateral wrist sprain, left hand sprain, sciatica, and “injury” to face and left ear. Dr. Allen checked a box marked “No” to the question of prior history or evidence of concurrent or preexisting injury, disease, or physical impairment. He further checked a box marked “Yes” to the question of whether he believed appellant’s condition was caused or aggravated by an employment activity. Dr. Allen noted a period of total disability from February 15 through June 19, 2023 and kept appellant off work.

In a report dated March 2, 2023, Dr. Eric Y. Baden, Board-certified in emergency medicine, noted that appellant was seen for what was thought to be multiple contusions and sprains of the jaw, right hand, right wrist, right foot, and right ankle. X-ray evaluation of the affected extremities did not show any evidence of fracture.

On May 19, 2023 appellant was seen by Philip Rodriguez, a chiropractic nurse practitioner, who diagnosed multiple sprains.

Appellant filed a claim for compensation (Form CA-7) on June 23, 2023, claiming leave without pay from February 16 through June 17, 2023.

In a July 11, 2023 development letter, OWCP informed appellant of the deficiencies of his claim for disability from work commencing February 16, 2023. It advised him of the type of additional evidence needed and afforded him 30 days to provide the necessary evidence. No response was received.

By decision dated August 28, 2023, OWCP denied appellant’s claim for disability compensation commencing February 16, 2023, finding that the medical evidence of record was insufficient to establish that he was disabled from work during the claimed period due to his accepted February 15, 2023 employment injury. It noted that the only medical evidence it had received in support of his claim was a clinic note dated February 15, 2023 from “Dr. Patel.”

The Board, having duly considered this matter, finds that th e case is not in posture for decision.

In the case of William A. Couch,2 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.

In its August 28, 2023 decision, OWCP only noted receipt of a clinic note dated February 15, 2023, from “Dr. Patel.” It failed to consider and address the February 15, 2023 reports from Dr. Scribbick and the May 19, 2023 report from Dr. Allen, received prior to the

2
41 ECAB 548 (1990); see also Order Remanding Case, A.D., Docket No. 22-0519 (issued January 11, 2023);
Order Remanding Case, A.B., Docket No. 22-0179 (issued June 28, 2022); Order Remanding Case, S.H., Docket No. 19-1582 (issued May 26, 2020); R.D., Docket No. 17-1818 (issued April 3, 2018).

2
August 28, 2023 decision, which addressed appellant’s diagnoses and disability status. The Board also notes that OWCP also did not note receipt of the additional reports received on May 19, 2023 which related appellant’s diagnoses. As such, it failed to follow its procedures by properly reviewing and discussing all of the evidence of record. 3 It is crucial that OWCP consider and address all evidence relevant to the subject matter properly submitted prior to the issuance of its final decision, as the Board’s decisions are final with regard to the subject matter appealed. 4

The Board thus finds that this case is not in posture for a decision as OWCP did not consider and address evidence submitted by appellant in support of h is claim for compensation. 5 On remand, the Board shall review all evidence of record and, following any further development as deemed necessary, it shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the August 28, 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: May 22, 2024
Washington, DC

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

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

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

3
OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 2.1401.5b(2) (November 2012). 4 See A.D., supra note 3; A.B., supra note 3; 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 2. 5 See A.B., supra note 3; V.C., Docket No. 16-0694 (issued August 19, 2016).

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