J.D. and U.S. Postal Service, Post Office, Danville, VA (Board decision, August 26, 2016)

ECAB remand decision. The Board set aside OWCP’s denial and returned the claim for further proceedings; the requested benefit 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 of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.D., a postal employee, sought compensation for left shoulder and hand conditions. OWCP considered evidence from a separate claim file but did not include that file in the record sent to the Board. The Board set aside the denial and directed OWCP to combine the two files, review all relevant evidence, and issue a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101.
• Outcome: May 9, 2016 denial set aside; occupational disease claim remanded for combined-file review.
• Key point: The Board could not decide the claim while evidence relied upon by OWCP was missing from the appeal record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.D., Appellant
)
)
and ) Docket No. 16-1293
) Issued: August 26, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Danville, VA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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

On June 3, 2016 appellant, through counsel, filed a timely appeal from a May 9, 2016 decision of the Office of Workers’ Compensation Programs (OWCP) affirming the prior denial of an occupational disease claim. The appeal was docketed as No. 16-1293.

The Board has duly considered the matter and finds that this case is not in posture for decision. In this case, by decision dated August 27, 2015, OWCP denied appellant’s claim for a left shoulder condition and left carpal tunnel syndrome sustained on or before October 20, 2009. On September 4, 2015 counsel requested a telephonic hearing, conducted on March 30, 2016. He asserted that because OWCP accepted a left shoulder sprain under File No. xxxxxx076 due to the same work factors, OWCP should approve the present claim. OWCP issued the May 9, 2016 decision under the present claim. OWCP’s hearing representative explained that in adjudicating the present claim, she reviewed unspecified medical evidence in File No. xxxxxx076 “and copied a November 21, 2014 report into the instant claim.” She recommended that OWCP

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. consider doubling the present claim with File No. xxxxxx076. However, OWCP did not double the two files.

The record forwarded to the Board demonstrates that OWCP considered evidence from File No. xxxxxx076 in adjudicating the present claim, including adding a report from File No. xxxxxx076 to the present case record under File No. xxxxxx789. The Board does not have access to File No. xxxxxx076. The Board therefore finds this case is not in posture for a decision, as the record before the Board is incomplete and does not permit an informed adjudication of the case by the Board. Thus, the case must be remanded to OWCP to combine the claim files. OWCP procedures provide for doubling claims when correct adjudication of the issues depends on frequent cross-reference between files.2 Upon remand, it should combine File No. xxxxxx076 with the instant case, File No. xxxxxx789. After combining the two records, OWCP should consider all relevant evidence regarding whether appellant sustained left upper extremity conditions as claimed. It should then issue an appropriate merit decision.

IT IS HEREBY ORDERED THAT the May 9, 2016 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: August 26, 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

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

2