B.H. and Department of the Air Force, Hill Air Force Base, Ogden, UT (Board decision, November 9, 2016)

ECAB remand decision. The Board set aside OWCP’s March 8, 2016 emotional condition decision and remanded for further proceedings; the remanded issue 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

An Air Force employee claimed emotional and physical symptoms and alleged errors in returning him to light duty after earlier right shoulder and lumbar injuries. OWCP had considered the new claim without combining the prior claim file, leaving the Board without the earlier evidence needed to review the decision. The Board set aside the ruling and directed OWCP to combine and reconstruct the records before issuing another decision.

Decision snapshot

• Authority: FECA consequential injury and complete case record.
• Outcome: March 8, 2016 decision set aside and remanded.
• Key point: The related injury file had to be available for an informed decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.H., Appellant
)
)
and ) Docket No. 16-0906
) Issued: November 9, 2016
DEPARTMENT OF THE AIR FORCE, HILL
)
AIR FORCE BASE, Ogden, UT, 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 March 25, 2016 appellant filed a timely appeal of a March 8, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s claim for compensation. The Board docketed the appeal as File No. 16-0906.

On August 10, 2015 appellant filed an occupational disease or illness claim (Form CA-2) alleging that he sustained emotional conditions, as well as headaches, nausea, dizziness, and balance problems, as a result of his federal employment. OWCP denied this claim by decision dated September 22, 2015, finding that appellant did not establish the alleged work factors. Appellant requested a review of the written record by an OWCP hearing representative. In a decision dated March 8, 2016, an OWCP hearing representative affirmed the September 22, 2015 decision.

The Board, having duly considered the matter, concludes that the case is not in posture for decision. OWCP procedures provide that cases should be combined when correct adjudication of the issues depends on frequent cross-reference between files.1 The record indicates appellant had a prior claim for right shoulder and lumbar injuries on January 24, 2013

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000). in OWCP File No. xxxxxx246. Appellant’s claim in the instant case is that there were errors in returning him to light-duty work following the January 24, 2013 injuries, and that an employing establishment physician altered his work restrictions. The September 22, 2015 OWCP decision indicates the prior claim was reviewed, without discussion of specific evidence, and then asserts that the current claim should be considered a consequential injury claim. It is well established that in situations where there is a consequential injury, case records should be combined.2

The case records have not been administratively combined. As the record before the Board does not contain the evidence from the prior claim, the Board is unable to properly adjudicate the issues presented. Appellant’s current claim is based on alleged actions and evidence from the prior claim, and is unclear what evidence from the prior claim may be relevant, or what evidence was reviewed by OWCP. The Board finds that the case is not in posture for a decision as the record before the Board is incomplete and would not permit an informed adjudication of the case by the Board. The case must be remanded to OWCP to combine the files and for further reconstruction and assemblage deemed necessary, to be followed by an appropriate decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated March 8, 2016 is set aside and the case remanded to OWCP for further action consistent with this order of the Board.

Issued: November 9, 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

2
See M.M., Docket No. 14-0617 (issued September 25, 2015); see also W.B., Docket No. 15-1751 (issued March 8, 2016).

2