D.R. and Department of Veterans Affairs, Southern Arizona VA Health Care System (Board decision, November 26, 2024)

ECAB remand decision. The Board set aside OWCP’s treatment denial and remanded for a new 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA employee sought authorization for additional care following an accepted adverse reaction to a COVID-19 vaccine. OWCP denied the request while stating that no supporting evidence had been received, but it had received a physician's report addressing the requested treatment. The Board directed OWCP to consider that report and issue a new decision. Treatment authorization remains unresolved.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Treatment denial set aside; submitted report must be considered.
• Key point: OWCP must address relevant medical evidence received before its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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D.R., Appellant
)
)
and ) Docket No. 24-0667
)
Issued: November 26, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
SOUTHERN ARIZONA VA HEALTH CARE
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SYSTEM, Tucson, AZ, 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 JANICE B. ASKIN, Judge

On June 6, 2024 appellant filed a timely appeal from a May 9, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 24-0667.

On October 20, 2021 appellant, then a 41-year-old health aid and technician, filed a traumatic injury claim (Form CA-1) alleging that on that date, she sustained an allergic reaction to the COVID-19 vaccination she received in the performance of duty. She stopped work that same day. OWCP accepted the claim for adverse effect of viral vaccine. It paid appellant wage-loss compensation on the supplemental rolls as of November 22, 2021 and on the periodic rolls effective September 10, 2023.

In a March 20, 2024 report, Dr. John S. Townsend, IV, a family medicine specialist, noted appellant’s history of injury on October 7, 2021. He recounted that appellant had received a single dose of a COVID-19 vaccine. Within five minutes after receiving the vaccine, appellant’s face and chest turned red, and her throat closed so that she could not talk and could not breathe. She was seen in the employing establishment emergency department and was treated with allergy medication, a steroid shot, and epinephrine injection. Within the following five days, she was seen in the emergency room an additional three times and treated with essentially the same medications. Appellant also related that within five days of receiving the vaccine, her blood pressure was “super low,” requiring ambulance transport to a hospital, where she was again told that she had anaphylaxis. Dr. Townsend diagnosed history of adverse reaction to vaccine, history of recurrent anaphylaxis-type reaction of undetermined etiology, psychogenic dyspnea, idiopathic urticaria with angioedema, and history of laryngospasms, and concluded that as appellant’s symptoms began immediately after the vaccine, the vaccine was the cause of appellant’s conditions. He opined that appellant was an appropriate candidate for a trial of a Vecttor therapy system and recommended a 20 session Vecttor trial. It also received a document entitled Symbios Integrative Health Vecttor Therapy which described Vecttor therapy as neuromodulation administered via Vecttor.

By development letters dated April 2 and 3, 2024, addressed to Dr. Townsend, OWCP noted that it received a request for medical treatment to include noninvasive extremity arterial studies; testing of autonomic nervous system function and cardiovagal innervation, (parasympathetic); physical medicines or rehabilitative therapies; an integrated biopsychosocial assessment, including history, mental status, and recommendations; neurobehavioral status examinations; and neuropsychological evaluations.1 It explained that if he believed that a newly diagnosed condition was causally related to the accepted injury, he should submit a detailed narrative medical report that included an accurate history of injury and all prior industrial and nonindustrial injuries to similar parts of the body, and a firm diagnosis of the recent condition(s) resulting from the injury. OWCP afforded 30 days to submit the necessary evidence.

By decision dated May 9, 2024, OWCP denied authorization for the requested medical services. It explained that on April 1, 2024 it had received an authorization request from appellant’s medical provider, but that it had not received any evidence in support of the authorization request.

The Board finds that the 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 all evidence properly submitted by a claimant and received by OWCP before the final decision is issued. While in the May 9, 2024 decision, OWCP noted receipt of the authorization request for medical procedures, it did not specifically note receipt of Dr. Townsend’s March 20, 2024 report. The Board finds that Dr. Townsend’s March 20, 2024 report was not considered and addressed by OWCP in its May 9, 2024 decision. 3

1
The requested codes were listed as 93922, 95921, 97799, 90971, 96116, 96121, 96132, 96133, 96136, 96137, 93923, 95923, 95924, 96138, 96139, 95816, 95957, and 92653 2 41 ECAB 548 (1990); see J.R., Docket No. 21-1421 (issued April 20, 2022); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
3
See C.D., Docket No. 20-0168 (issued March 5, 2020).

2
It is crucial that OWCP consider and address all evidence received prior to the issuance of its final decision, as Board decisions are final with regard to the subject matter appealed. 4 The Board finds that this case is not in posture for decision as OWCP did not consider and address the above-noted evidence in its May 9, 2024 decision. 5 On remand OWCP shall review all of the evidence submitted in support of the request for authorization received on April 1, 2014. Following this, and other such further development as deemed necessary, it shall issue an appropriate decision. Accordingly,

IT IS HEREBY ORDERED THAT the May 9, 2024 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: November 26, 2024
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4
See 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
Id.

3