B.C. and U.S. Postal Service (Board decision, October 25, 2012)

ECAB remand decision. The Board set aside OWCP's August 5, 2011 decision and remanded B.C.'s recurrence claim. The remanded issues remain unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

B.C., a postal employee, sought disability benefits for recurring back symptoms. OWCP considered a related occupational disease file, but that file's medical evidence was absent from the appeal record. The Board required the files to be combined and a new merits decision on a complete record.

Decision snapshot

• Authority: Completeness of recurrence record.
• Outcome: Decision set aside and remanded.
• Key point: The recurrence claim remains unresolved pending record reconstruction.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.C., Appellant
)
)
and ) Docket No. 12-635
) Issued: October 25, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Brooklyn, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas Harkins, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

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

On June 27, 2012 appellant filed an application for review of the Office of Workers’ Compensation Programs’ (OWCP) August 5, 2011 merit decision denying his recurrence claim. The appeal was docketed as No. 12-635. After considering the evidence of record, the Board finds this case is not in posture for a decision.

The present appeal involves appellant’s April 6, 2003 occupational disease claim (No. xxxxxx989), which was accepted for lumbar strain. Appellant filed a claim for recurrence of disability as of May 1, 2005, alleging that he experienced disabling pain in his lower back, neck and shoulders as a result of repetitive work activities. OWCP denied his claim by decision dated December 13, 2005.

The record indicates that OWCP considered appellant’s recurrence claim in File No. xxxxxx989 as a new claim for an occupational disease under File No. xxxxxx955. The claim was denied by decisions dated September 8, 2006 and November 14, 2007. In a decision dated September 10, 2010, the Board affirmed a January 25, 2010 decision denying reconsideration on the grounds that the request was untimely and failed to establish clear evidence of error.1

1
Docket No. 10-1886 (issued September 10, 2010).
Appellant subsequently filed another claim for recurrence of disability as of May 23, 2006 in File No. xxxxxx989. The recurrence claim was denied by decisions dated November 9, 2006, May 14 and August 22, 2007. In a decision dated January 14, 2011, the Board set aside OWCP’s September 18, 2009 decision denying appellant’s reconsideration request as untimely and failing to establish clear evidence of error and remanded the case for further consideration.2

In its August 5, 2011 decision, in File No. xxxxxx989, OWCP denied modification of its prior merit decisions. The decision reflects that the claims examiner reviewed the evidence in the instant case, File No. xxxxxx989, and in File No. xxxxxx955, both of which concern allegations relating to the same body part. The record in the instant case, however, does not contain any evidence relating to the development of the prior claim. The Board finds that the medical evidence contained in File No. xxxxxx955 will necessarily bear directly on appellant’s claim in File No. xxxxxx989. Because it is essential for the Board to review the medical evidence contained in File No. xxxxxx955 in order to render a full and fair adjudication of the present appeal, this case will be remanded for OWCP to consolidate case file numbers xxxxxx955 and xxxxxx989. Reconstruction of the record will be followed by a de novo decision on the merits of the claim, in order to protect appellant’s appeal rights.

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ August 5, 2011 decision be set aside and the case remanded for further development consistent with this order.

Issued: October 25, 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

2
Docket No. 10-1120 (issued January 14, 2011).

2