K.W. and U.S. Postal Service, Post Office, Philadelphia, PA (Board decision, November 6, 2014)

ECAB final decision. The Board set aside OWCP’s January 29, 2014 schedule award decision and remanded K.W.’s claim for consolidation, further medical review, and a new decision. 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 the decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

K.W., a Postal Service custodian, had several accepted back injury claims and sought a larger schedule award for lower extremity impairment. OWCP considered the award under one claim file, while another file contained evidence and awards related to the same lumbar spine. The Board found that the files needed to be combined to avoid an incomplete and potentially inconsistent assessment. It directed OWCP to obtain a medical adviser’s review of the combined record, including whether K.W. had reached maximum medical improvement and the total permanent impairment. The Board set aside the earlier decision and returned the claim for a new merit decision.

Decision snapshot

• Authority: Federal (FECA) Procedure Manual, Chapter 2.400.8(c), combining related claim files.
• Outcome: January 29, 2014 schedule award decision set aside; claim remanded.
• Key point: Related injury files needed to be combined before determining total permanent impairment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.W., Appellant
)
)
and ) Docket No. 14-1325
) Issued: November 6, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 19, 2014 appellant, through counsel, filed a timely appeal from a January 29, 2014 schedule award decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as number 14-1325.

The Board has duly considered the matter and finds that the case is not in posture for decision.1

The record before the Board indicates that appellant has three separate claims pertaining to a work-related lumbar injury. On September 7, 2005 appellant filed a traumatic injury claim (Form CA-1) alleging that she sustained a back injury while lifting mail. By decision dated January 10, 2006, OWCP accepted the claim for sprain of back, lumbar region, claim File No. xxxxxx323. On July 8, 2006 appellant filed another Form CA-1 alleging that she sustained an injury while pushing a lawn mower. OWCP accepted the claim for aggravation of lumbar sprain, claim File No. xxxxxx973. The two claims, File Nos. xxxxxx973 and xxxxxx323, were administratively combined into master claim File No. xxxxxx323.

1
T.R., Docket No. 13-771 (issued June 25, 2013).
 On October 3, 2008 appellant, then a 45-year-old custodian, filed a Form CA-1 in this claim, File No. xxxxxx475, alleging that on that same date she sustained a back and left leg injury when she fell while lifting mail. By decision dated January 12, 2009, OWCP accepted the claim for sprain of back, lumbar region. By decision dated September 4, 2013, it expanded the claim to include left thoracic or lumbosacral neuritis or radiculitis.

On June 10, 2013 appellant filed a claim for a schedule award (Form CA-7).

By decision dated July 15, 2013, OWCP granted appellant a schedule award for 12 percent permanent impairment of the left lower extremity.

Appellant appealed the schedule award determination and submitted a June 21, 2013 report from Dr. Nicholas Diamond, a Doctor of Osteopathic Medicine, who opined 9 percent permanent impairment of the right lower extremity and 20 percent permanent impairment of the left lower extremity.

By decision dated January 29, 2014, the Branch of Hearings and Review found that appellant was not entitled to more than a 12 percent permanent impairment of the left lower extremity for which she received a schedule award.

The Board notes that, under master claim File No. xxxxxx323, OWCP granted appellant a schedule award for one-half percent permanent impairment of the left lower extremity and one- half percent impairment of the right lower extremity, totaling one percent bilateral lower extremity impairment. By decision dated July 7, 2014, the Branch of Hearings and Review found that appellant was not entitled to more than a one percent permanent impairment of the bilateral lower extremities for which she received a schedule award in claim File No. xxxxxx323.

As File No. xxxxxx323 involves injury to the same lumbar spine, the medical evidence contained in claim File No. xxxxxx323 will necessarily bear directly on appellant’s schedule award claim in File No. xxxxxx475.

Pursuant to its procedures, OWCP has determined that cases should be combined when correct adjudication of the issues depends on frequent cross-reference between files. It is important for OWCP to fully consolidate these claims to ensure that all evidence germane to the schedule award determination is properly considered. Moreover, to consider appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in this case and raise the possibility of inconsistent results.2 It is the Board’s policy to avoid such an outcome.3 Therefore, for a full and fair adjudication, appellant’s claims should be combined.4 On remand OWCP shall combine claim File No. xxxxxx475 with master claim File No. xxxxxx323 and its subfiles, and refer appellant, along with a combined statement of accepted facts, and the case file to an OWCP medical adviser for review of the record and determination on whether maximum

2
T.D., Docket No. 13-2130 (issued May 1, 2014).
3
See William T. McCracken, 33 ECAB 1197 (1982).
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).

2 medical improvement has been reached and the total percentage of permanent partial impairment.5

Following this and any other further development deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s schedule award claim.

IT IS HEREBY ORDERED THAT the January 29, 2014 decision of the Office of Workers’ Compensation Programs is set aside and remanded for further development consistent with this decision of the Board.

Issued: November 6, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter 2.810.8(i) (September 2010); J.G., Docket No. 09-1714 (issued April 7, 2010).

3