M.M. and U.S. Postal Service, Post Office, Malcolm, IA (Board decision, September 25, 2015)

ECAB remand decision. The Board set aside OWCP’s December 3, 2013 denial of M.M.’s left shoulder claim and remanded to combine it with her accepted right shoulder injury file and issue a new decision. Whether the left shoulder condition is compensable remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. 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

M.M., a retired postmaster, claimed that reliance on her left arm while recovering from an accepted right shoulder injury contributed to a left shoulder condition. OWCP denied the new claim, but the prior right shoulder file was absent from the record sent to the Board. The Board held that the related files should have been combined because the claim depended on the accepted injury and its treatment. It set aside the denial and directed OWCP to review the combined record and issue a new decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Left shoulder claim denial set aside and remanded.
• Key point: The earlier accepted right shoulder file was needed to decide the claimed consequential left shoulder injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.M., Appellant
)
)
and ) Docket No. 14-0617
) Issued: September 25, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Malcolm, IA, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 24, 2014 appellant filed a timely appeal of a December 3, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease claim. The Board assigned Docket No. 14-0617.

On February 15, 2013 appellant, then a 61-year-old retired postmaster,1 filed an occupational disease claim alleging that on May 1, 2006 she first became aware of her left torn rotator cuff and other related issues. It was not until July 21, 2006 that she realized that this condition was due to employment duties as a postmaster. Appellant attributed her left shoulder condition to compensating for the loss of use of her accepted right shoulder condition. By decision dated June 27, 2013, OWCP denied her claim on the grounds that the medical evidence failed to establish a causal relationship between the diagnosed conditions and the identified work factors. By decision dated December 3, 2013, an OWCP hearing representative affirmed the June 27, 2013 decision. The hearing representative noted that OWCP had accepted the conditions of right shoulder and upper arm/rotator cuff sprain as of April 1, 2007 under OWCP File No. xxxxxx580. The record included medical reports from appellant’s treating physician, Dr. Kyle Galles, who suggested that the left shoulder degenerative conditions were accelerated because of the dependency on her left arm while recovering from right shoulder surgery. 1 Appellant retired from the employing establishment effective March 12, 2011.
 The Board has duly considered the matter and concludes that the case is not in posture for a decision. 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.2 As OWCP referenced a prior decision which had been accepted in denying appellant’s claim and she appears to be alleging a consequential injury from that claim, OWCP should have combined the case files in accordance with its procedures.

As the record before the Board does not contain the evidence from the prior claim, the Board is unable to properly address and adjudicate the issue of appellant’s occupational disease claim under OWCP File No. xxxxxx908.

On remand, OWCP should combine the present case record, OWCP File No. xxxxxx908, with OWCP File No. xxxxxx580. After combining these case records on remand, OWCP should consider the evidence contained in the combined case record and, following any necessary further development, issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 3, 2013 is set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: September 25, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2
Federal (FECA) Procedure Manual, Part 2 -- Claim, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000).

2