P.L. and U.S. Postal Service, Post Office, Detroit, MI (Board decision, August 15, 2012)

ECAB remand decision. The Board set aside OWCP's denial and remanded for a consolidated record and new decision. Entitlement to compensation on the occupational disease 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

P.L., a postal employee, had an accepted claim for neck and back strains after a water fountain fell and struck his head at work. He later claimed that work activities aggravated those injuries, and OWCP denied the later occupational disease claim. OWCP said it had reviewed evidence from the earlier injury file, but that complete file was missing from the record sent to the Board. The Board could not assess whether OWCP had considered all relevant medical evidence. It ordered OWCP to combine the two files, reconstruct the record, and decide the later claim again.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: August 24, 2011 occupational disease denial set aside; case remanded.
• Key point: The earlier accepted injury file was needed to review the later aggravation claim fairly.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.L., Appellant
)
) Docket No. 12-706
and ) Issued: August 15, 2012
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Detroit, MI, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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

Appellant filed an application for review of the Office of Workers’ Compensation Programs’ (OWCP) August 24, 2011 merit decision denying his occupational disease claim. The appeal was docketed as number 12-706. The Board finds that this case is not in posture for a decision.

Appellant filed a traumatic injury claim (File No. xxxxxx282) alleging that he sustained injuries to his back, neck and face at work on May 31, 2006 when a water fountain fell off the wall and struck him on the head. His claim was accepted for cervical and lumbosacral strains and contusions to the face, scalp and neck.

The present appeal involves appellant’s May 25, 2009 occupational disease claim (File No. xxxxxx946), in which he alleged aggravation of cervical and lumbar injuries sustained on May 31, 2006 due to employment activities during June and July 2006. Appellant identified the date of injury as May 31, 2006.

In OWCP’s August 24, 2011 decision denying appellant’s claim in the instant case, the claims examiner indicated that he had extensively reviewed the evidence of record in File No. xxxxxx282 to ensure that all pertinent evidence was considered and noted that he had copied relevant documents. Due to the overlapping nature of the claims, the medical evidence contained in File No. xxxxxx282 will necessarily bear directly on appellant’s claim for compensation in File No. xxxxxx946. Without reviewing the case record in File No. xxxxxx282, the Board is unable to determine whether OWCP properly considered all relevant evidence in rendering its final decision.

Because it is essential for the Board to review the medical evidence contained in File No. xxxxxx282 in order to render a full and fair adjudication of the present appeal, this case will be remanded for OWCP to consolidate case File No. xxxxxx282 with File No. xxxxxx946. 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 24, 2011 decision be set aside and the case remanded for further development consistent with this order.

Issued: August 15, 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

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