N.D. and Office of Special Counsel, Headquarters, Washington, DC (Board decision, May 25, 2011)

ECAB final decision. The Board set aside OWCP’s March 31, 2010 denial and remanded for combined review of related claim files. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

N.D. filed separate claims concerning a workplace incident and longer term stress at the Office of Special Counsel. OWCP denied the incident claim without combining the related files, despite a hearing representative’s direction to do so. The Board found that the files needed to be considered together for a fair assessment and to avoid inconsistent results. It returned the matter for combined review and a new decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act claim adjudication, 5 U.S.C. § 8101 et seq.
• Outcome: March 31, 2010 denial set aside; related claim files to be combined on remand.
• Key point: Related stress claims required a combined record before OWCP decided the incident claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.D., Appellant
)
)
and ) Docket No. 10-1655
) Issued: May 25, 2011
OFFICE OF SPECIAL COUNSEL,
)
HEADQUARTERS, Washington, DC, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 8, 2010 appellant filed an application for review of a March 31, 2010 decision of the Office of Workers’ Compensation Programs finding that she did not establish that she sustained a stress-related condition in the performance of duty due to an incident alleged to have occurred on March 9, 2006. The appeal was docketed as No. 10-1655.

On April 21, 2006 appellant filed a Form CA-1, notice of traumatic injury, alleging that she sustained a stress-related condition in the performance of duty on March 9, 2006.1 The case file for this claim was given the number xxxxxx252.2

On February 8, 2006 appellant had filed a Form CA-2, notice of occupational disease, under a different case file, claiming that she sustained a stress-related condition due to a number of incidents and conditions at work to which she was exposed over an extended period. The case file for this claim was given the number xxxxxx775.

1
A traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992). 2 Case file number xxxxxx252 was created as a master file with case file number xxxxxx253 serving as a subsidiary file. Both of these files pertain to the April 21, 2006 occupational disease claim. In a May 4, 2009 decision, issued in connection with the present case files (numbers xxxxxx252 and xxxxxx253), the Office denied appellant’s claim that she sustained a stress- related occupational disease in the performance of duty. In a December 17, 2009 decision, an Office hearing representative affirmed the Office’s May 4, 2009 decision with respect to the finding that appellant had not established a stress-related occupational disease in the performance of duty. In both of these decisions, reference was made to documents contained in case file number xxxxxx775. In the December 17, 2009 decision, the Office hearing representative also found that the Office’s May 4, 2009 decision had not adequately considered appellant’s claim that she sustained a stress-related traumatic injury in the performance of duty on March 9, 2006. He remanded the case to the Office for this purpose and directed the Office to combine the case files for the traumatic injury claim (numbers xxxxxx252 and xxxxxx253) with the case file for the occupational disease claim (number xxxxxx775). In a March 31, 2010 decision, the Office denied appellant’s claim that she sustained a stress-related traumatic injury in the performance of duty on March 9, 2006. The Office did not combine the case files for the traumatic injury claim with the case file for the occupational disease claim as directed by the Office hearing representative.3

The Board has duly considered the matter and notes that the case is not in posture for a decision. Pursuant to Office procedures, it has determined that cases should be combined where correct adjudication depends on cross-referencing between files.4 Consequently, the Board finds that, for a full and fair adjudication in accordance with Office procedures, the case files pertaining to appellant’s claim for a stress-related traumatic injury should be combined with the case file pertaining to her claim for a stress-related occupational disease. This will allow the Office to consider all relevant claim files in evaluating appellant’s claims. Moreover, to consider appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in this case and raise the possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.5

The case will be remanded to the Office to combine case file numbers xxxxxx252 and xxxxxx253 with case file number xxxxxx775. Following this and such other development as deemed necessary, the Office shall issue an appropriate merit decision on appellant’s claim.

3
Moreover, the Office has not forwarded the case file for claim number xxxxxx775 to the Board.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).
5
See William T. McCracken, 33 ECAB 1197 (1982).

2
 IT IS HEREBY ORDERED THAT the March 31, 2010 decision of the Office of Workers’ Compensation Programs be set aside and the matter remanded to the Office for further proceedings consistent with this order of the Board.

Issued: May 25, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees' Compensation Appeals Board

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

3