M.Z. and Department of Homeland Security, Transporation Security Administration, Newark, NJ (Board decision, June 26, 2013)

ECAB remand decision and order. The Board set aside OWCP’s August 2, 2012 decision and directed it to combine the related claim files and issue a new merits decision. Whether M.Z. had a recurrence of disability or a new work injury remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

M.Z. reported disability she linked to a prior work injury. OWCP treated her filing as a new injury claim, but the Board found that OWCP had not adequately explained that choice or included the earlier accepted-injury file in the record. The Board ordered OWCP to combine the files, decide whether the claim involved a recurrence or a new injury, and issue a new decision on the merits.

Decision snapshot

• Authority: OWCP procedure for combining related injury files and Board reconsideration rule, 20 C.F.R. § 501.7(a).
• Outcome: August 2, 2012 decision set aside; combined claim review remanded.
• Key point: OWCP needed the earlier accepted-claim file to resolve whether the later disability was a recurrence or a new injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.Z., Appellant
)
)
and ) Docket No. 13-414
) Issued: June 26, 2013
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORATION SECURITY
)
ADMINISTRATION, Newark, NJ, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On December 13, 2012 appellant filed a timely appeal from an August 2, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim. The Board docketed the appeal as No. 13-414.

On August 11, 2010 appellant filed a notice of recurrence of disability on July 6, 2010 due to an August 4, 2009 work injury; assigned OWCP File No. xxxxxx265. OWCP advised her, however, that it was adjudicating the alleged recurrence of disability as a claim for a new injury; assigned OWCP File No. xxxxxx323. In a November 12, 2010 statement, appellant questioned why it created a new claim and noted that she experienced pain immediately upon returning to work after her August 4, 2009 work injury. She submitted medical evidence attributing her condition to her August 4, 2009 employment injury.

In a January 5, 2011 decision, OWCP found that appellant had not established that she sustained an injury on July 6, 2010. It determined that the medical evidence did not show that she experienced any condition causally related to the July 6, 2010 work incident. OWCP noted that on September 20, 2010 it had issued a decision regarding appellant’s disability due to her August 4, 2009 work injury, assigned File No. xxxxxx265. In decisions dated May 5, 2011 and August 2, 2012, it denied modification of its January 5, 2011 decision.
The Board has duly considered the matter and finds that the case is not in posture for decision. The Board finds that OWCP did not adequately explain why it adjudicated appellant’s notice of recurrence of disability as a new injury given that she alleged that she experienced pain immediately upon returning to work rather than relating any condition or disability to new work factors. Further, OWCP procedures provide that cases should be doubled when a new injury is reported for an employee who previously filed an injury claim for a similar condition and further indicates that the cases should be doubled as soon as the need to do so becomes apparent.1 In its June 5, 2011 and August 2, 2012 decisions, OWCP referenced a decision dated September 2, 2010 in File No. xxxxxx265. The factual and medical evidence pertaining to appellant’s accepted claim in File No. xxxxxx265, however, is not contained in the case record. The Board will consequently remand the case for OWCP to combine the current case record with File No. xxxxxx265 and determine whether she sustained either a recurrence of disability due to her August 4, 2009 employment injury or a new work injury.2 Following this and any further development deemed necessary, it shall issue a de novo decision on the merits.

IT IS HEREBY ORDERED THAT the August 2, 2012 decision is set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: June 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000).
2
See L.Z., Docket No. 11-1415 (issued December 12, 2011).

2