L.B. and Department of the Army, Army Depot, Red River, TX (Board decision, October 4, 2016)

ECAB remand decision. The Board set aside OWCP’s May 1 and August 19, 2015 decisions and remanded for the earlier claim file to be combined with the current record and a new merits decision. Entitlement to compensation remains 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

L.B., an Army depot painter, claimed disability related to an earlier knee injury. OWCP treated her recurrence filing as a new occupational disease claim and denied it, but the record sent to the Board did not include the file for the previously accepted injury. The Board found that the earlier file’s factual and medical evidence was needed to assess the claim. It set aside the denial and reconsideration decisions and ordered OWCP to combine the files, develop the record as needed, and issue a new merits decision.

Decision snapshot

• Authority: OWCP file-combination procedure, FECA Procedure Manual, Part 2, Chapter 2.400.8(c).
• Outcome: May 1 and August 19, 2015 decisions set aside and remanded.
• Key point: The Board could not resolve the current claim without the earlier accepted injury file.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
)
L.B., Appellant
)
)
and ) Docket No. 15-1838
) Issued: October 4, 2016
DEPARTMENT OF THE ARMY, ARMY
)
DEPOT, Red River, TX, 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 COLLEEN DUFFY KIKO, Judge

On September 8, 2015 appellant filed a timely appeal from a May 1, 2015 merit decision and an August 19, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied her occupational disease claim and an August 19, 2015 nonmerit decision which denied her June 1, 2015 request for reconsideration. The Board docketed the appeal as No. 15-1838

On May 27, 2014 appellant, then a 64-year-old painter, filed a claim for recurrence of disability (Form CA-2a) due to a March 31, 2009 employment injury. She explained that her knee condition never stopped hurting and that her calf never stopped swelling.

OWCP adjudicated the claim as a new occupational disease claim and converted the claim to an occupational disease claim (Form CA-2). In a March 25, 2015 memorandum to the file, the claims examiner directed that the claim be converted to a Form CA-2 claim and directed that the previously accepted claim, OWCP File No. xxxxxx168, be doubled with the new claim under OWCP File No. xxxxxx793. File No. xxxxxx168, however, is not presently available for review before the Board.

The Board has duly considered the matter and finds that the case is not in posture for a decision.
 OWCP procedures provide that the cases should be combined when correct adjudication of the issues depends on frequent cross-reference between files.1 In the instant case, OWCP determined that the recurrence claim should be adjudicated as a new occupational disease claim and requested that the previously accepted claim, File No. xxxxxx168, be doubled with the new occupational disease claim under number File No. xxxxxx793. Upon review of the record, however, it is clear that the record does not contain the factual and medical evidence pertaining to appellant’s March 31, 2009 employment injury in File No. xxxxxx168.

The Board will consequently remand the case for OWCP to combine the current case record with File No. xxxxxx168. Following this and any further development deemed necessary, it shall issue a de novo decision on the merits.

IT IS HEREBY ORDERED THAT the August 19 and May 1, 2015 decisions of the Office of Workers’ Compensation Programs be set aside and the case remanded 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

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).

2