M.S. and Department of Transportation, Federal Aviation Administration (Board decision, October 8, 2024)

ECAB remand decision. The Board set aside OWCP's denial of total disability compensation and remanded for full record review. OWCP must issue a new decision on the claim, so benefit 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).

Plain-English summary

A federal transportation worker sought total disability compensation after an accepted 2018 injury. OWCP denied the claim despite receiving two treating neurologist reports before its decision. The Board found that OWCP had not considered and addressed those reports. It set aside the denial and directed OWCP to review all timely submitted evidence and issue a new decision. Total disability remains undecided.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: OWCP denial set aside; disability claim remanded for review of omitted reports.
• Key point: OWCP must consider relevant medical reports received before issuing its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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M.S., Appellant
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)
and ) Docket No. 24-0821
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Issued: October 8, 2024
DEPARTMENT OF TRANSPORTATION,
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FEDERAL AVIATION ADMINISTRATION, )
Flushing, NY, Employer
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__________ )

Appearances: Case Submitted on the Record
Paul Kalker, Esq., 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 August 8, 2024 appellant, through counsel, filed a timely appeal from an August 8, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 24 -0821.

This case has previously been before the Board. 2 The facts and circumstances of the case as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On September 18, 2018 appellant, then a 54-year-old transportation security officer, filed a traumatic injury claim (Form CA-1) alleging that on September 13, 2018 she injured her neck,

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. 2 Docket No. 23-0965 (issued April 15, 2024). back, and head when she was struck by a piece of luggage while in the performance of duty. She stopped work on the date of injury. OWCP accepted the claim for a back contusion and thoracic sprain. It paid appellant wage-loss compensation on the supplemental rolls for total disability, effective October 29, 2018.

Appellant returned to work on November 15, 2018 in a part-time, modified-duty clerical position. The requirements of the position included sitting, walking, and standing for up to eight hours per day. OWCP thereafter paid appellant on the supplemental rolls for partial disability, effective November 15, 2018.

On April 1, 2019 appellant filed a claim for compensation (Form CA-7) for total disability from work commencing February 3, 2019.

By decision dated May 3, 2019, OWCP denied appellant’s disability, finding that the medical evidence of record was insufficient to establish total disability from work commencing February 3, 2019 due to the accepted employment injury. It noted that she remained entitled to compensation for 16 hours of wage-loss compensation for partial disability.

Following requests for reconsideration on June 10 and 29, 2020, OWCP continued to deny appellant’s claim for wage-loss compensation by decisions dated August 15, 2019, and June 7, 2023, respectively.

In the interim, OWCP further developed the evidence by referring appellant to second opinion physicians.

OWCP also expanded its acceptance of the claim to include contusion of pelvis, right-sided L5 radiculopathy of the lumbar region, and sprain of the ligaments of the cervical and lumbar spine by decision dated May 8, 2023.

On July 5, 2023 appellant, through counsel, appealed to the Board. By decision dated April 15, 2024 3, the Board remanded the case for OWCP to refer appellant with an updated statement of accepted facts (SOAF) to a physician in the appropriate field of medicine to provide a fully rationalized opinion on whether she was disabled from work beginning February 3, 2019.

OWCP continued to receive evidence.

In an August 28, 2023 medical report, Dr. Ranga C. Krishna, a Board-certified neurologist, documented physical examination findings of diminished strength, tone, and mass of the muscles of the right upper and lower extremities, reduced range of motion in the lumbar spine, decreased sensation, and an antalgic gait. He diagnosed lumbosacral radiculopathy, thoracic radiculopathy, and right foot drop and recommended evaluations by a spine specialist and pain management. Dr. Krishna opined that appellant was totally disabled.

In a May 3, 2024 medical report, Dr. Krishna noted weakness in the muscles of the right upper and lower extremities, positive straight leg raise on the right, antalgic gait, allodynia of the

3
Id.

2 right foot, reduced range of motion of the spine, and reduced sensation on the right in the C5 -6 and L5-S1 dermatomal patterns. He diagnosed cervical and lumbar radiculopathy and right foot blunt injury trauma with swelling and allodynia. Dr. Krishna opined that appellant was unable to return to work.

OWCP also received physical therapy reports dated May 31, 2013 through May 22, 2024.

On May 29, 2024 OWCP prepared an updated SOAF.

On June 11, 2024 OWCP referred appellant and the May 29, 2024 SOAF to Dr. Sean Lager, a Board-certified orthopedic surgeon, for an updated second opinion evaluation.4 In a July 15, 2024 report, Dr. Lager documented physical examination findings and opined that appellant was “not disabled from work beginning February 3, 2019 from her accepted work-related medical conditions. The claimant could work in a sedentary position with a 10 -pound lifting restriction.”

By decision dated August 8, 2024, OWCP denied appellant’s claim for wage-loss compensation, finding that the medical evidence of record was insufficient to establish total disability from work commencing February 3, 2019 due to the accepted employment injury.

The Board finds that the case is not in posture for decision.

In the case of William A. Couch,5 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 OWCP is not required to list every piece of evidence submitted, the Board notes that the August 28, 2023 and May 3, 2024 reports by Dr. Krishna were not considered and addressed by OWCP in its August 8, 2024 decision.6

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. 7 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 August 8, 2024 decision.8 On remand, OWCP shall review all of the evidence submitted on reconsideration. Following this, and other such further development as deemed necessary, it shall issue an appropriate decision. Accordingly,

4
The Board notes that OWCP had previously referred appellant to Dr. Lager for a second opinion evaluation, which he performed on July 8, 2019.
5
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).
6
See C.D., Docket No. 20-0168 (issued March 5, 2020).
7
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 5.
8
See Order Remanding Case, L.G., Docket No. 23-0637 (issued September 15, 2023).

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IT IS HEREBY ORDERED THAT the August 8, 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: October 8, 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

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