D.B. and U.S. Postal Service, Post Office, Bellmawr, NJ (Board decision, November 26, 2012)

ECAB remand decision. The Board set aside OWCP's December 19, 2011 schedule award ruling and remanded for a new merits decision after OWCP combines two related claim files. D.B.'s proper impairment rating 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

D.B., a postal worker, appealed a schedule award for impairment of both arms. An impartial physician had used records from a separate claim for a right shoulder injury, but that claim file was missing from the record before the Board. The Board found that the related files needed to be combined so OWCP could consider all relevant evidence. It set aside the award decision and directed OWCP to issue a new merits decision after further development.

Decision snapshot

• Authority: OWCP procedure for combining related claim files.
• Outcome: December 19, 2011 decision set aside and remanded.
• Key point: The Board could not assess an impairment rating that relied on records missing from the appeal file.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.B., Appellant
)
)
and ) Docket No. 12-1112
) Issued: November 26, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Bellmawr, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, 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 April 24, 2012 appellant filed an application for review of a December 19, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx426, which affirmed a May 20, 2011 schedule award decision granting her 13 percent impairment of the right upper extremity and 1 percent impairment of the left upper extremity.1 The appeal was docketed as number 12-1112.

In the December 19, 2011 decision, an OWCP hearing representative, in noting the history of the claim, advised that another hearing representative remanded the case on August 10, 2010, as records from an accepted January 1997 right shoulder injury were not considered by an impartial medical examiner. The hearing representative noted that the previous examiner directed that OWCP obtain all medical records regarding the upper extremities, amend its statement of accepted facts and arrange another impartial medical examination. The record reveals that on October 15, 2010 OWCP referred appellant to another referee physician along with the case file for the current claim before the Board, file number xxxxxx426 and the case file for the 1997 injury, file number xxxxxx656. The case record for file number xxxxxx656 is not

1
On March 27, 2003 appellant alleged that she developed bilateral carpal tunnel syndrome as a result of her employment duties. OWCP accepted her claim for bilateral carpal tunnel syndrome and adhesive capsulitis right shoulder. before the Board at this time. In his January 3, 2011 report, Dr. Thomas J. O’Dowd, the referee physician, noted reviewing the operative reports for the acromioclavicular resection in 1997 and based his impairment rating in part on the acromioclavicular joint resection which correlated to a 12 percent impairment rating under the under sixth edition of the A.M.A., Guides. An OWCP medical adviser concurred in this determination. OWCP’s May 20 and December 19, 2011 schedule award decisions found that Dr. O’Dowd represented the weight of the medical evidence.

The Board has duly considered the matter and notes that the case is not in posture for a decision. As noted, Dr. O’Dowd, an impartial specialist, considered records from file number xxxxxx656 in determining appellant’s impairment rating but these records are not presently before the Board. Pursuant to its procedures, OWCP has determined that cases should be combined where correct adjudication depends on cross-referencing between files or when there is more than one claim involving the same part of the body.2 In the instant appeal, it appears that, for a full and fair adjudication, OWCP claims pertaining to appellant’s upper extremities should be combined pursuant to OWCP procedures. This will allow OWCP to consider all relevant evidence in developing appellant’s claim.

The case will be remanded to OWCP to combine case file numbers xxxxxx426 and xxxxxx656. Following this and such other development as deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).

2
IT IS HEREBY ORDERED THAT the December 19, 2011 decision be set aside and the matter remanded to OWCP for further proceedings consistent with this order.

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