H.S. and U.S. Postal Service, Post Office, Atlanta, GA (Board decision, November 26, 2012)

ECAB final decision on the merits. The Board affirmed OWCP's December 16, 2011 denial of modification because H.S.'s later occupational disease filing duplicated an earlier claim. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. 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

H.S., a postal distribution clerk, filed a later claim alleging back and neck problems from the same duties and onset date identified in an earlier claim. OWCP had denied the earlier claim and, after combining the related files, refused to change its denial of the later filing. The Board found that the later filing alleged no new claim. It affirmed OWCP's decision.

Decision snapshot

• Authority: FECA review of a duplicate occupational disease claim.
• Outcome: December 16, 2011 denial of modification affirmed.
• Key point: The later filing repeated the earlier claim's work duties and alleged injury date.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.S., Appellant
)
)
and ) Docket No. 12-629
) Issued: November 26, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Atlanta, GA, Employer
)
__________ )

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

ORDER AFFIRMING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 26, 2012 appellant filed a timely appeal from the December 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification of a decision denying his claim for compensation. The appeal was docketed as No. 12-629. The Board has duly considered the matter and finds that OWCP properly denied appellant’s claim.

Appellant has filed two other separate claims for low back conditions which allegedly resulted from performing his distribution clerk duties of culling mail, lifting, standing, walking and sitting. On January 26, 1988, he injured his back in a lifting incident at work. OWCP accepted appellant’s claim for low back strain, subluxation of the L4 vertebra and aggravation of lumbar disc disease, File No. xxxxxx361. Appellant returned to work on October 25, 1997. On November 25, 1997 he filed an occupational disease claim. Appellant alleged that, upon returning to work on October 25, 1997, he developed an aggravation of lumbar disc disease/lower back and neck pain when he was required to stand, walk and sit during an eight- hour work shift. He noted a date of injury of November 13, 1997. On February 17, 1998 his claim was denied for failure to establish fact of injury. On August 3, 1998, OWCP denied modification of the prior decision, File No. xxxxxx401.

On February 14, 2007 appellant filed the instant occupational disease claim alleging that he developed back and neck pain after returning to work on October 25, 1997 where he worked in the lockbox section and was required to perform repetitive lifting, bending, standing, walking and sitting, File No. xxxxxx657. He noted a November 13, 1997 date of injury. On June 4, 2007 OWCP denied the claim. On February 21, 2008 a hearing representative affirmed the June 4, 2007 denial. The hearing representative found that File No. xxxxxx657 was a duplicate of File No. xxxxxx401, specifically noting that appellant filed both claims stating that he became aware of his problems around November 13, 1997 after culling mail upon returning to work on October 25, 1997. In a May 18, 2010 order, the Board remanded the case for OWCP to consolidate File Nos. xxxxxx401, xxxxxx361 and xxxxxx657.1 On August 27, 2010 OWCP denied modification of the prior decision. Appellant again appealed to the Board. In a June 28, 2011 order, the Board found that OWCP did not submit the complete record for File No. xxxxxx401 and remanded the case for OWCP to consolidate the files.2 On December 16, 2011 OWCP noted consolidating the above cases and issued a decision denying modification of the prior decision.

The Board finds that appellant’s February 14, 2007 occupational disease claim, File No. xxxxxx657, is a duplicate of his November 25, 1997 claim, File No. xxxxxx401 and, therefore was properly denied. In File No. xxxxxx401, appellant alleged that after returning to work on October 25, 1997, he developed an aggravation of lower back and neck pain from work duties. He noted a date of injury of November 13, 1997. Appellant’s claim was denied for failing to establish that he sustained a work-related injury. In the case on appeal before the Board, File No xxxxxx657, appellant has again alleged that on November 13, 1997 he developed a low back and neck condition after returning to work on October 25, 1997. He has not alleged a new claim.

On appeal, appellant asserts that he developed a neck and back condition on November 13, 1997 causally related to his work duties. For reasons stated, the Board finds that he has not made a new claim.3

1
Docket No, 09-2010 (issued May 18, 2010).
2
Docket No. 10-2257 (issued June 28, 2011).
3
See W.M., Docket No. 09-1609 (issued April 5, 2010).

2
IT IS HEREBY ORDERED THAT the December 16, 2011 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 26, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3