D.L. and U.S. Postal Service, Post Office, Islandia, NY (Board decision, September 25, 2015)

ECAB remand decision. The Board set aside OWCP’s January 2, 2014 denial of D.L.’s right shoulder claim and remanded to combine it with the earlier injury file and issue a new decision. Whether the current symptoms are 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

D.L., a postal letter carrier, reported renewed right shoulder problems after returning to work following an accepted shoulder injury. He filed a recurrence claim, but OWCP treated it as a new occupational disease and denied it. The Board found that the earlier injury file concerned the same body part and was needed to decide whether the symptoms represented a recurrence. It set aside the denial and directed OWCP to combine the files and issue a new merits decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Shoulder claim denial set aside and remanded.
• Key point: OWCP needed the related accepted injury file to assess the claimed recurrence.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.L., Appellant
)
)
and ) Docket No. 14-0897
) Issued: September 25, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Islandia, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas S. Harkins, Esq., for the appellant
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 March 11, 2014 appellant, through his attorney, filed a timely appeal from a January 2, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease claim for a right should condition. The Board docketed the appeal as No. 14-0897.

On January 28, 2013 appellant, then a 45-year-old letter carrier, filed a recurrence claim alleging that he sustained a recurrence of a previously accepted January 7, 2012 injury. OWCP determined that the recurrence claim should be adjudicated as a new occupational disease claim and assigned File No. xxxxxx857. The earlier claim for the January 7, 2012 injury, to which OWCP assigned File No. xxxxxx379, is not presently before the Board.

The Board has duly considered the matter and finds that the case is not in posture for a decision.

Appellant reported that since he returned to full duty on December 4, 2012 following the original injury he experienced increased soreness, stiffness, weakness, and decreased range of motion of his right shoulder and upper arm. He stated that all of his muscles and joints were aching, sore and tired from his job duties. Appellant explained that most of these discomforts subsided and diminished on the fourth week, except for his right shoulder and arm symptoms. He believed his current symptoms were related to the continuous and repetitive movements of the original right shoulder injury. Along with his claim, appellant submitted several medical reports dated January 18 to September 23, 2013 by Dr. Mark G. Grossman, a Board-certified orthopedic surgeon, who specializes in sports medicine, examined him for post status right should rotator cuff repair and revision and recommended modified duty. In a March 5, 2013 attending physician’s report, Dr. Grossman noted an original injury of January 7, 2012 and stated that appellant sustained a recurrence of right shoulder pain on January 8, 2013. By decisions dated October 16, 2013 and January 2, 2014, OWCP denied appellant’s claim finding insufficient medical evidence to establish that his right shoulder condition was causally related to factors of his employment.

OWCP procedures provide that cases should be combined when correct adjudication of the issues depends on frequent cross-reference between files. For example, if a new injury case is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body, doubling is required.1 In the instant case, appellant filed a recurrence of disability claim for a January 7, 2012 injury, which OWCP converted to an occupational disease claim and assigned File No. xxxxxx857. OWCP thereafter denied the claim, for failure to establish causal relationship, finding that appellant has not established that factors of his employment between January 7 and December 4, 2012 and caused his current diagnosed condition.

The record reveals that appellant’s previous January 7, 2012 traumatic injury was assigned File No. xxxxxx379 and that the injury was to the same part of the body. The factual and medical evidence pertaining to appellant’s January 7, 2012 employment injury in File No. xxxxxx379, however, is not contained in the case record. Furthermore, the record indicates that appellant attempted to file this claim as a recurrence claim of the January 7, 2012 employment injury. On appeal appellant’s attorney alleges that the current claim could be adjudicated as a recurrence of disability within 90 days or less of the January 7, 2012 injury. OWCP’s procedures provide that, if a claim of recurrence of disability, rather than causal relationship.2 OWCP, however, continued to adjudicate the claim as a new occupational disease claim, and deny the claim on the grounds of causal relationship, even though the evidence supports that appellant may have sustained a recurrence of the January 7, 2012 right shoulder injury. It failed to properly combine or request combination of the present case record with the record of the January 7, 2012 employment injury, which appellant implicated as the initial cause of his current right shoulder condition.3 The Board will consequently remand the case for OWCP to combine the current case record with File No. xxxxxx379 and determine whether he sustained either a

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).
2
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.1500(6)(a) (1995).
3
See C.B., Docket No. 13-1091 (issued September 16, 2013) (remanding the case to OWCP to combine case files where the record revealed that appellant attributed a March 2, 2012 left foot injury to a previous April 12, 2004 employment injury). See also M.Z., Docket No. 13-0414 (issued June 26, 2012) (remanding the case to OWCP to combine case files where it 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 her condition to new work factors).

2 recurrence of disability of his January 7, 2012 employment injury. Following this and any further development deemed necessary, it shall issue a de novo decision on the merits.

IT IS HEREBY ORDERED THAT the January 2, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action 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

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