O.H. and U.S. Postal Service, Embarcadero Postal Center, San Francisco, CA (Board decision, May 13, 2015)

ECAB remand decision. The Board set aside OWCP’s December 9, 2014 decision and directed it to combine three injury claims before deciding the claimed disability. Whether O.H. is entitled to compensation for the disputed period remains unresolved. 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

O.H., a Postal Service mail handler, stopped working in November 2013 and sought compensation for total disability. OWCP denied the claim after reviewing her back injuries, but the record also discussed an accepted foot condition in a separate claim file. The Board found that the medical and factual questions in all three accepted injury claims were intertwined. It set aside the denial and directed OWCP to combine the files and issue a new decision on disability beginning November 4, 2013.

Decision snapshot

• Authority: Federal (FECA) Procedure Manual, Part 2, Chapter 2.400.8, on combining related claim files.
• Outcome: December 9, 2014 denial set aside; claims remanded for a new decision.
• Key point: OWCP must consider the combined injury record when deciding whether the claimed disability is work related.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
O.H., Appellant
)
)
and ) Docket No. 15-495
) Issued: May 13, 2015
U.S. POSTAL SERVICE, EMBARCADERO
)
POSTAL CENTER, San Francisco, CA,
)
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 COLLEEN DUFFY KIKO, Judge

On January 6, 2015 appellant, through counsel, filed a timely appeal from a December 9, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that appellant had not established periods of total disability beginning November 4, 2013. The Board docketed the appeal as No. 15-495.

The record before the Board indicates that appellant has three accepted employment injuries. In claim number xxxxxx670, appellant, on May 22, 2008, in her capacity as a mail handler, injured her back when opening an overhead mail container. OWCP accepted her claim for sprain of lumbosacral joint. In claim number xxxxxx781, appellant, on September 15, 2004, fell back injuring her right hand and back while attempting to unload a mail cage from a truck. OWCP accepted the claim for lumbar and neck sprain and contusion of the right hand. It combined claim numbers xxxxxx781 and xxxxxx670, which are both currently before the Board, with the latter as the master file.1

1
By decision dated July 18, 2012 under claim number xxxxxx670, the Board reversed a December 7, 2011 OWCP merit decision, finding that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation and medical benefits effective July 3, 2011 due to an unresolved conflict in medical evidence. Docket No. 12-609 (issued July 18, 2012). Appellant also had an accepted claim for a bilateral foot condition, claim number xxxxxx649, which is not currently available for review by the Board. The record indicates that appellant was performing light-duty work until November 3, 2013 in accordance with her restrictions under claim number xxxxxxx649. Appellant then stopped work on November 4, 2013 and has not returned. OWCP denied appellant’s claim for periods of disability beginning November 4, 2013 in its December 9, 2014 decision currently before the Board.

OWCP’s decision dated June 9, 2014 and the medical evidence in the record address appellant’s disability for work due to both her back injuries and her foot conditions accepted in claim number xxxxxx649. While OWCP stated that it was not making a finding of fact with respect to claim number xxxxxx649 in the December 9, 2004 decision, in the June 9, 2014 decision, OWCP stated that appellant’s physicians failed to reference which of her work duties under claim number xxxxxx649, caused her ongoing disability. Appellant’s attending physician, Dr. Michael E. Hebrard, a Board-certified physiatrist, has opined that appellant’s foot conditions resulted in consequential injuries to her spine and resulted in her alleged periods of total disability. OWCP included a description of the accepted conditions of her foot injury in the statement of accepted facts when referring her claim for a second opinion evaluation by Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon, and he addressed this claim in his report.

The Board, having reviewed the case record, finds that the case is not in posture for decision. The Board finds that the factual and medical issues regarding appellant’s current claims for disability are intertwined such that all three OWCP claims must be combined2 and a de novo decision issued regarding whether her claims for disability beginning November 4, 2013 and continuing are employment related.

2
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8 (February 2000).

2
 IT IS HEREBY ORDERED THAT the December 9, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: May 13, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3