B.H. and U.S. Postal Service, Post Office, Cleveland, OH (Board decision, April 8, 2015)

ECAB remand decision. The Board set aside OWCP’s July 24, 2014 decision and remanded to combine the claim files. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

B.H., a Postal Service employee, challenged a reduction of compensation based on a constructed hospital admitting clerk job. OWCP considered restrictions from a separate accepted back injury, but that claim file was not before the Board. The Board found that the files should be combined so OWCP could assess all relevant medical limits in deciding whether the job represented his wage-earning capacity. It set aside the reduction decision and remanded.

Decision snapshot

• Authority: FECA, medical suitability of a constructed position.
• Outcome: July 24, 2014 wage-earning capacity decision set aside and remanded.
• Key point: The separate back injury file was needed to assess the selected job.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.H., Appellant
)
)
and ) Docket No. 14-1788
) Issued: April 8, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Cleveland, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

On August 11, 2014 appellant filed an application for review of a July 24, 2014 decision of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx897, which affirmed an October 24, 2013 decision finding that the position of hospital admitting clerk reflected his wage-earning capacity.1 The appeal was docketed as No. 14-1788.

In the July 24, 2014 decision, an OWCP hearing representative affirmed OWCP’s October 24, 2013 decision which reduced appellant’s compensation benefits based on the constructed position of hospital admitting clerk. OWCP had relief on the physical restrictions provided by Dr. Andre Wolanin on August 16, 2013 of occasional lifting overhead with his right shoulder limited to 10 pounds, and pushing, pulling, and lifting no greater than 10 pounds occasionally with the right upper extremity. She also noted that appellant had an accepted low back claim and had undergone spinal fusion surgery in November 2013, performed by Dr. Scott Miller, claim number xxxxxx123.2 The hearing representative noted reviewing claim number

1
On or before July 9, 2007 appellant, a mail processing clerk, injured his shoulders due to the repetitive nature of his job. OWCP accepted his claim for right shoulder labral tear, torn left rotator cuff and expanded his claim to include right shoulder biceps tendon rupture. It authorized a left shoulder cuff repair on July 13, 2007 and a right shoulder and biceps repair on February 26, 2008. 2 This claim is not before the Board on the present appeal. xxxxxx123 and the medical evidence therein and opined that the medical evidence supported that appellant was capable of performing the selected position of hospital admitting clerk. Appellant testified that he had limitations and difficulty with lifting, carrying, standing, bending, sitting, and walking due to the accepted low back condition, and spinal fusion in claim number xxxxxx123 which would affect his ability to perform the hospital admitting clerk position in claim number xxxxxx897.

The Board has duly considered the matter and notes that the case is not in posture for a decision. The claim before the Board, case file number xxxxxx897, pertains to a wage-earning capacity decision based on the constructed position of hospital admitting clerk. Case file number xxxxxx123, which pertains to an accepted low back condition, was reviewed by the hearing representative and he found no evidence in the record to document that appellant was incapable of performing the selected position as a result of his back condition.

The procedures of OWCP require that consideration must be given to medical conditions, “including those accepted under other claims” when determining the medical suitability of a constructed position for a wage-earning capacity.3 The evidence reflects that claim file number xxxxxx123 has evidence germane to whether the constructed position of hospital admitting clerk fairly and reasonably represents appellant’s wage earning capacity in claim number xxxxxx897.

As noted, claim file number xxxxxx123 is not presently before the Board. Pursuant to its procedures, OWCP has determined that cases should be combined where correct adjudication depends on cross-referencing between files.4 In the instant appeal, it appears that, for a full and fair adjudication, appellant’s OWCP claims should be combined pursuant to OWCP procedures. This will allow OWCP to consider all relevant claim files in determining whether the constructed position of hospital admitting clerk fairly and reasonably represents appellant’s wage-earning capacity and to avoid piecemeal adjudication5 that could raise the possibility of inconsistent results.

The case will be remanded to OWCP to combine case files numbers xxxxxx897 and xxxxxx123 pursuant to OWCP procedures. Following this and such other development as deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s schedule award claim.

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.816(4)(b) (June 2013).
4
Id. at 2.400.8(c) (February 2000).
5
See William T. McCracken, 33 ECAB 1197 (1982).

2
 IT IS HEREBY ORDERED THAT the July 24, 2014 decision be set aside and the matter remanded to the Office of Workers’ Compensation Programs for further proceedings consistent with this order.

Issued: April 8, 2015
Washington, DC

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

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

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

3