D.B. and Department of Veterans Affairs, Veterans Administration Medical Center, Bronx, NY (Board decision, September 20, 2016)

ECAB remand decision. The Board set aside OWCP’s April 1, 2015 decision and remanded D.B.’s claim for review as a consequential injury claim. Whether she contracted hepatitis C from the accepted needle stick 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

D.B., a nursing assistant, had an accepted claim for a work-related needle stick to her hand. She later sought benefits for hepatitis C, which she said resulted from that incident. OWCP treated her application as a recurrence claim and denied it. The Board held that she alleged a consequential injury from the already accepted incident, a question OWCP had not considered. It set aside the denial and returned the case for OWCP to decide that question.

Decision snapshot

• Authority: FECA consequential injury principle applied by the Board.
• Outcome: April 1, 2015 OWCP decision set aside and remanded.
• Key point: OWCP must consider the alleged hepatitis C as a consequential injury claim, rather than a recurrence claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.B., Appellant
)
)
and ) Docket No. 15-1099
) Issued: September 20, 2016
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Bronx, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 April 17, 2015 appellant filed a timely appeal from an April 1, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a recurrence of disability. This appeal was docketed as No. 15-1099. The Board finds that this case is not in posture for decision.1

On September 24, 2004 appellant, then a 49-year-old nursing assistant, filed a claim noting that on July 11, 2001 after taking a patient’s blood, she stuck her right hand when disposing of the needle. On November 12, 2004 OWCP accepted appellant’s claim for “accident caused by hypodermic needle to right hand.” On August 1, 2014 appellant filed a claim alleging a recurrence of the July 11, 2001 injury, noting that from 2003 to present she has suffered from chronic Hepatitis C. By decision dated September 23, 2014, OWCP denied appellant’s claim as it found that the evidence did not establish that she had a recurrence or increased disability due to a change or worsening of the accepted work conditions because there was no factual proof that appellant was exposed to a patient positive for Hepatitis C, and that therefore the evidence was insufficient to establish that she contracted Hepatitis C due to the July 11, 2001 injury. By decision dated April 1, 2015, the hearing representative affirmed OWCP’s September 23, 2014 decision.

1
By decision dated September 13, 2016, the Board denied appellant’s request for oral argument.
 It is an accepted principle of workers’ compensation law that when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury is deemed to arise out of the employment, unless it is the result of an independent intervening cause which is attributable to the employee’s own intentional conduct.2 The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.3

Although OWCP and appellant discuss her claim as a claim for a recurrence of injury, the Board finds that this did not involve a recurrence of disability due to a spontaneous change in appellant’s medical condition. Rather, appellant is actually alleging that at the time she stuck herself with the needle on July 11, 2001, she contracted Hepatitis C. The Board notes that OWCP has already accepted appellant’s claim for this incident caused by a hypodermic needle stick to appellant’s right hand. Appellant now alleges that she developed Hepatitis C as a direct consequence of this accepted needle stick. Her allegation of a consequential injury has never been considered by OWCP.

Accordingly, appellant’s claim should be considered a claim for a consequential injury.
Therefore, the Board will remand this case, with instructions to OWCP that it consider appellant’s claim as a claim for a consequential injury.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 1, 2015 is set aside and the case is remanded for further action consistent with this order.

2
Albert F. Ranieri, 55 ECAB 598 (2004).
3
B.S., Docket No. 12-137 (issued June 19, 2012).

2
Issued: September 20, 2016
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