P.G. and U.S. Postal Service, Post Office, White Plains, NY (Board decision, October 4, 2016)

ECAB remand decision. The Board set aside OWCP’s March 30, 2015 claim denial and remanded for the earlier injury file to be combined with the current record and a new merits decision. The nature and compensability of the claimed condition remain unresolved. 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 this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

P.G., a postal automation clerk, sought compensation for renewed neck and shoulder symptoms after returning to work following an accepted 2007 injury. She filed a recurrence claim, which OWCP converted to a new occupational disease claim and denied. The Board found that the earlier injury file was missing from the record and that the evidence could support considering a recurrence. It set aside the denial and directed OWCP to combine the files, determine whether the claim involved a recurrence or a new occupational disease, and issue a new merits decision.

Decision snapshot

• Authority: OWCP file-combination procedure, FECA Procedure Manual, Part 2, Chapter 2.4000.8(c).
• Outcome: March 30, 2015 denial set aside and remanded.
• Key point: The earlier accepted injury file was needed to decide whether the later symptoms reflected a recurrence or a new disease claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
)
P.G., Appellant
)
) Docket No. 15-1806
and ) Issued: October 4, 2016
)
U.S. POSTAL SERVICE, POST OFFICE,
)
White Plains, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas S. Harkins, Esq., for the appellant1
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

JURISDICTION

On September 1, 2015 appellant, through counsel, filed an application for review of a March 30, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP), File No. xxxxxx438, which denied appellant’s occupational disease claim. The appeal was docketed as No. 15-1806.

On October 24, 2013 appellant, then a 50-year-old automation clerk, alleged that on September 29, 2013 she sustained a recurrence of a previously accepted August 23, 2007 employment injury. She stopped work on September 30, 2013. OWCP determined that her recurrence claim should be adjudicated as a new occupational disease claim and assigned File

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. No. xxxxxx438. The earlier claim for the August 23, 2007 injury, to which OWCP assigned File No. xxxxxx366, is not presently before the Board.

On her claim form, appellant explained that since she returned to work on September 7, 2013 following the August 23, 2007 injury, she believed that using her upper body differently aggravated the injuries to her neck and shoulder duty. She noted that she had not sustained any new traumatic injury relating to her neck or shoulder since returning to full duty. Along with her claim, appellant submitted several medical reports dated October 8, 2013 to January 17, 2014 by Dr. Jean Bachar, Board-certified in physical medicine and rehabilitation, who examined appellant for complaints of pain in the neck and left shoulder. In an August 8, 2013 report, she noted a date of injury of August 23, 2007. Dr. Bachar reported that appellant was out of work and returned on September 27, 2013. She related that upon returning to work appellant experienced severe pain in her cervical spine and left shoulder. Dr. Bachar provided physical examination findings and diagnosed cervicalgia and lumbosacral neuritis.

By decisions dated February 11, 2014 and March 30, 2015, OWCP denied appellant’s claim finding insufficient medical evidence to establish that her cervical and left shoulder conditions were causally related to factors of her employment.

The Board has duly considered the matter and notes that the case is not in posture for a decision. OWCP procedures provide for combining case files where correct adjudication depends on cross-referencing 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.2 In the instant case, appellant filed a recurrence of disability claim for an August 23, 2007 injury, which OWCP converted to an occupational disease claim and assigned File No. xxxxxx438. OWCP thereafter denied the claim, for failure to establish causal relationship.

The record reveals that appellant’s previous August 23, 2007 employment injury was assigned File No. xxxxxx366 and that the injury was to the same part of the body. The factual and medical evidence pertaining to appellant’s August 23, 2007 employment injury in File No. xxxxxx366, 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 August 23, 2007 employment injury. OWCP, however, adjudicated the claim as a new occupational disease claim, even though the evidence supports that appellant may have sustained a recurrence of the August 23, 2007 cervical and left shoulder injury. It failed to properly combine or request combination of the present case record with the record of the August 23, 2007 employment injury, which appellant asserted was the initial cause of his current conditions.3

The case will be remanded to OWCP to combine case files xxxxxx366 and xxxxxx438 and determine whether appellant sustained either a recurrence of disability of her August 23, 2007 employment injury or a new occupational disease injury. Following this and such other

2
Federal (FECA) Procedure Manual, Part 2 -- File Maintenance and Management, Doubling Case Files, Chapter 2.4000.8(c) (February 2000).
3
See D.L., Docket No. 14-0897 (issued September 25, 2015).

2 development as deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.

IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further action consistent with this order of the Board.

Issued: October 4, 2016
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

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