G.V. and U.S. Postal Service (Board decision, August 26, 2024)

ECAB remand decision. The Board set aside OWCP's reconsideration denial and remanded for consideration of an omitted medical report. OWCP must issue a new decision, so the underlying knee 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 mail processing clerk asked OWCP to reconsider denial of a knee injury claim after a workplace fall. OWCP denied the request as untimely and lacking clear error, but its decision did not address an August 2022 report from her treating orthopedist. The Board held that OWCP must consider all properly submitted evidence and set aside the denial. OWCP must issue a new decision after addressing the omitted report.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Reconsideration denial set aside; omitted medical report must be considered.
• Key point: OWCP did not address the treating physician’s August 2022 report.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.V., Appellant
)
)
and ) Docket No. 24-0781
)
Issued: August 26, 2024
U.S. POSTAL SERVICE, WEST PALM BEACH )
PROCESSING & DISTRIBUTION CENTER, )
West Palm Beach, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Christina Berrios, for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On July 22, 2024 appellant, through her representative, filed a timely appeal from an April 19, 2024 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 24 -0781.

On July 2, 2020 appellant, then a 50-year-old mail processing clerk, filed a traumatic injury claim (Form CA-1) alleging that on June 4, 2020 she sprained her right knee when she slipped and fell on a wet bathroom floor while in the performance of duty.

In reports dated June 11 through September 17, 2020, Dr. Graham Whitfield, a Board- certified orthopedic surgeon, described the June 4, 2020 employment incident and noted appellant’s complaints of bilateral knee pain, as well as lower back pain with muscle spasm, left ankle pain, and left shoulder pain. He reviewed her medical history and provided physical

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. examination findings. Regarding appellant’s right knee, Dr. Whitfield diagnosed right knee arthralgia with chondromalacia patella, pes anserinus bursitis, and patellar tendinitis. He completed duty status reports (Form CA-17) and work restriction notes dated June 11 and August 13, 2020, which indicated that appellant was unable to work.

By decision dated June 8, 2021, OWCP denied appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to establish a diagnosed medical condition in connection with the June 4, 2020 employment incident. It concluded, therefore, that the requirements had not been met to establish an injury as defined by the Federal Employees’ Compensation Act (FECA).

On June 30, 2021 appellant, through her representative, requested a review of the written record before a representative of OWCP’s Branch of Hearings and Review.

OWCP subsequently received additional evidence. In a May 20, 2021 report, Dr. Whitfield related appellant’s complaints of right knee pain. He reported that she was not working. Dr. Whitfield noted that examination findings of appellant’s right knee revealed tenderness to palpation in the anterolateral and anteromedial joint lines. He diagnosed right knee arthralgia with chondromalacia patella, pes anserinus bursitis, patellar tend initis, hamstring tendinitis, lumbosacral sprain and L4-5 posterior disc bulging.

In a report dated May 31, 2021, Dr. Whitfield indicated that he was responding to OWCP’s development letter. He provided his dates of examination and modalities of treatment, and referred to his June 11, 2020 report for examination findings and diagnosis. Dr. Whitfield opined that it was “clear that within reasonable medical probability [appellant] sustained injuries to her right knee at work [June 4, 2020].”

By decision dated August 24, 2021, OWCP’s hearing representative modified the June 8, 2021 decision to find that appellant had established right knee medical diagnoses in connection with the accepted June 4, 2020 employment incident. However, the claim remained denied as the medical evidence of record was insufficient to establish causal relationship between the diagnosed conditions and the accepted June 4, 2020 employment incident.

On August 29, 2022 appellant, through her representative, requested reconsideration. The representative indicated that appellant immediately reported her injury to her superv isor and was provided with an authorization for examination and/or treatment (Form CA-16) to take to the emergency room for treatment. Appellant alleged that Dr. Whitfield, her treating physician, had responded to OWCP’s request for additional information and his response clearly met the criteria of causal relationship.

Appellant submitted an August 15, 2022 report of Dr. Whitfield. He noted findings from his prior reports and concluded that “there was unequivocal evidence to demonstrate that [appellant] sustained injuries to her right knee on June 4, 2020 at work.” Appellant also resubmitted reports from Dr. Whitfield dated June 11, 2020, and May 20 and 31, 2021.

By decision dated March 3, 2023, OWCP summarily denied appellant’s reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence of error.

2
Appellant appealed to the Board. By decision dated February 15, 2024,2 the Board set aside OWCP’s March 3, 2023 decision, and remanded the case to OWCP to make findings of fact and provide a clear statement of reasons explaining the basis for the decision.

By decision dated April 19, 2024, OWCP denied appellant’s August 29, 2022 request for reconsideration, finding that it was untimely filed, and failed to demonstrate clear evidence of error. It noted appellant’s representative’s representations regarding Dr. Whitfield’s May 31, 2021 report, but did not mention receipt of the August 15, 2022 report from Dr. Whitfield.

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

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.

On prior appeal, by decision dated February 15, 2024, the Board set aside OWCP’s March 3, 2023 decision, and remanded the case to OWCP. It was to make findings of fact and provide a clear statement of reasons explaining whether or not the evidence appellant submitted with her untimely request for reconsideration established clear evidence of error.

By decision dated April 19, 2024, OWCP denied appellant’s August 29, 2022 request for reconsideration, finding that it was untimely filed, and failed to demonstrate clear evidence of error. It noted appellant’s representative’s representations regarding Dr. Whitfield’s May 31, 2021 report, but did not mention receipt of the August 15, 2022 report from Dr. Whitfield.

As such, OWCP failed to follow its procedures by properly reviewing and discussing all of the evidence of record.4 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 her untimely request for reconsideration. On remand, OWCP shall review all evidence of record and it shall issue an appropriate decision. Accordingly,

2
G.V., Docket No. 23-1005 (issued February 15, 2024).
3
41 ECAB 548 (1990); see also Order Remanding Case, P.B., Docket No. 24-0368 (issued May 22, 2024); 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). 4 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).

3
IT IS HEREBY ORDERED THAT the April 19, 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: August 26, 2024
Washington, DC

Alec J. Koromilas, 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

4