E.G. and U.S. Postal Service, Post Office, New York, NY (Board decision, April 12, 2013)

ECAB final decision. The Board set aside OWCP’s June 6 and October 3, 2012 injury denials and remanded for consolidation. The record omitted three earlier accepted knee claim files relevant to E.G.’s new claim. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

E.G., a postal employee with several accepted knee conditions, alleged that returning to limited duty in July 2011 worsened both knees. OWCP denied the new injury claim while referring to evidence from earlier accepted claims. The Board found that it could not assess the ruling without those related files. It ordered OWCP to combine all four claim records and issue a new merits decision. The Board did not decide whether the later work caused an additional injury.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq..
• Outcome: June 6 and October 3, 2012 denials set aside and case remanded.
• Key point: Records from related accepted injuries must be available for review of a claimed aggravation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.G., Appellant
)
)
and ) Docket No. 13-204
) Issued: April 12, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
New York, NY, 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

On November 2, 2012 appellant, through counsel, filed an application for review of the Office of Workers’ Compensation Programs’ (OWCP) June 6 and October 3, 2012 merit decisions denying his traumatic injury claim. The appeal was docketed as No. 13-204. After considering the evidence of record, the Board finds this case is not in posture for a decision.

Appellant’s August 7, 2008 occupational disease claim was accepted for bilateral medial meniscal tears in File No. xxxxxx570. His July 27, 2009 claim was accepted under File No. xxxxxx577 for traumatic arthropathy of both legs, bilateral medial and lateral meniscal tears. Appellant’s October 5, 2010 claim for an occupational disease was accepted under File No. xxxxxx710 for bilateral lower leg localized primary osteoarthritis and bilateral osteochondritis dissecans. He returned to work in a limited-duty capacity on July 20, 2011 and worked on that date and July 21, 2011.

This appeal involves appellant’s July 26, 2011 traumatic injury claim (File No. xxxxxx849), in which he alleged an exacerbation of his bilateral knee injuries when he returned to work on July 21 and 22, 2011. His claim was originally denied by decision dated September 9, 2011 finding that he had failed to establish that his medical condition was causally related to the accepted events. Appellant requested reconsideration.
In a decision dated June 6, 2012, OWCP denied modification of its September 9, 2011 decision. The claims examiner reviewed the medical evidence of record and referenced certain medical evidence contained in File No. xxxxxx710, which included a functional capacity examination and second opinion examination pertaining to appellant’s work capacity on the day he returned to work. In an October 3, 2012 decision, OWCP, in denying modification of its June 6, 2012 decision, discussed the history of appellant’s previously accepted injuries, as well as the medical evidence of record in the instant case as it related to appellant’s knee condition prior and subsequent to his return to work on July 21, 2011.

The Board finds that it is essential to review the medical evidence contained in File Nos. xxxxxx570, xxxxxx577 and xxxxxx710 in order to render a full and fair adjudication of the present appeal. Due to the overlapping nature of the claims, the evidence contained in those case records will necessarily bear directly on appellant’s claim for compensation in File No. xxxxxx849. Without reviewing the case records in File Nos. xxxxxx570, xxxxxx577 and xxxxxx710, the Board is unable to determine whether OWCP properly considered all relevant evidence in rendering its final decision. Accordingly, this case will be remanded for OWCP to consolidate case File Nos. xxxxxx849, xxxxxx570, xxxxxx577 and xxxxxx710. 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’ October 3 and June 6, 2012 decisions be set aside and the case remanded for further development consistent with this order of the Board.

Issued: April 12, 2013
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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