K.P. and U.S. Postal Service, Post Office, Philadelphia, PA (Board decision, April 20, 2018)

ECAB remand decision. The Board set aside OWCP’s August 25, 2016 decision and returned the case for a complete record and a new decision. The recurrence claim 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

K.P. claimed a recurrence of disability after an accepted 2014 injury. A prior accepted injury was documented in a separate OWCP file, which the Board did not have. The Board found that it could not decide the recurrence claim on the incomplete record. It set aside OWCP’s August 25, 2016 decision and ordered OWCP to combine and reconstruct the files, develop the record as needed, and issue a new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101.
• Outcome: August 25, 2016 decision set aside; case remanded for further development.
• Key point: The missing prior claim file prevented an informed decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.P., Appellant
)
)
and ) Docket No. 17-0403
) Issued: April 20, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas R. Uliase, 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 VALERIE D. EVANS-HARRELL, Alternate Judge

On December 14, 2016 appellant, through counsel, filed a timely appeal from an August 25, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his recurrence of disability on August 21, 2014 due to his accepted March 11, 2014 employment injury. The Board docketed the appeal as No. 17-0403.

On March 11, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that, on that same date, he sustained injury to his back and head when he drove a forklift into a metal column. He was working a full-time permanent light-duty assignment as a result of that injury on March 11, 2014. OWCP accepted the claim for contusion of face, scalp, and neck, except eye, sprain of back lumbar region, and sprain of back thoracic region. On October 27, 2014 appellant filed a recurrence claim (Form CA-2a) alleging a return/increase of disability beginning on August 21, 2014.

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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. The Board notes that appellant had a prior work-related injury on February 25, 1987 under OWCP File No. xxxxxx098, which occurred when he fell from a chair. The prior claim was accepted by OWCP for cervical and lumbar strains and herniated nucleus pulposus (HNP) at L4-5, L5-Sl, with related surgery in mid-1993.

By decision dated January 25, 2016, OWCP denied appellant’s recurrence claim (Form CA-2a), finding that the medical evidence of record failed to establish a recurrence of disability commencing August 21, 2014 due to a material change/worsening of his accepted work-related condition.

The Board, having duly considered the matter, concludes that the case is not in posture for decision. OWCP’s procedures provide that cases should be combined when correct adjudication of the issues depends on frequent cross-referencing between files. In the instant case, OWCP has recommended that appellant consider filing a recurrence claim in OWCP File No. xxxxxx098. As the record before the Board does not contain the evidence from the prior claim, the Board is unable to properly adjudicate the issue of appellant’s recurrence claim. The Board finds that the case is not is 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 files2 and for further reconstruction and proper assemblage of the case record, to be followed by any necessary further development and a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the August 25, 2016 decision of the Office of Workers’ Compensation Programs is set aside, and the case is remanded for further action consistent with this order of the Board.

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

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Issued: April 20, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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