F.D. and Department of Agriculture, Agricultural Marketing Service, Bronx, NY (Board decision, February 2, 2018)

ECAB final decision. The Board set aside OWCP’s November 2, 2016 and February 8, 2017 decisions and remanded for combined claim files and a new decision. The occupational disease claim 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 decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

F.D. sought benefits for neck and back conditions that he related to his work as an agricultural commodity grader. OWCP denied the occupational disease claim while referring to evidence in a separate accepted shoulder injury file. That other file was absent from the record before the Board. The Board could not determine whether OWCP had considered all pertinent evidence, so it ordered the files combined and a new decision after further development.

Decision snapshot

• Authority: FECA Procedure Manual, Chapter 2.400.8(c).
• Outcome: Both OWCP decisions set aside; related claim files to be combined and a new decision issued.
• Key point: OWCP had to assemble related files before the Board could review the claim on a complete record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F. D., Appellant
)
)
and
)
) Docket No. 17-0988
DEPARTMENT OF AGRICULTURE, ) Issued: February 2, 2018
AGRICULTURAL MARKETING SERVICE,
)
Bronx, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Capp Taylor, 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 April 3, 2017 appellant, through his attorney, filed a timely appeal from November 2, 2016 and February 8, 2017 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as No. 17-0988.

On January 2, 2014 appellant, an agricultural commodity grader, filed a recurrence of disability claim (Form CA-2a) under OWCP File No. xxxxxx474.2 He reported that, since a 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. 2 File No. xxxxxx474 is not before the Board in the present appeal. Under File No. xxxxxx474, OWCP accepted a right shoulder sprain that occurred on May 30, 2013 when appellant slipped while carrying a carton of grapes on his right shoulder. Under that claim, appellant filed a recurrence claim on January 13, 2014. On April 9, 2014 OWCP denied the recurrence. Appellant timely requested a hearing with OWCP’s Branch of Hearings and Review and, in a January 14, 2015 decision, an OWCP hearing representative affirmed the April 9, 2014 decision. He then requested reconsideration, and, in an August 11, 2015 decision, OWCP vacated prior decisions, finding that the January 2, 2014 recurrence claim would be adjudicated as a new occupational disease claim and would be assigned a new OWCP File No. May 30, 2013 injury, his back and neck continued to worsen, causing severe pain that limited his job performance. Appellant indicated that he had neck and spine damage, as well as numbness in his extremities with swelling, loss of balance, loss of range of motion, and intense neck and back pain. He stopped work on December 11, 2003. OWCP developed the recurrence claim as a new occupational disease claim under File No. xxxxxx795.3 On October 21, 2015 it informed appellant of the type of evidence needed to establish the claim. Appellant, through counsel, requested that OWCP review the medical records in File No. xxxxxx474. He submitted a September 9, 2015 report from Dr. Arnold B. Wilson, an attending Board-certified orthopedic surgeon, who noted seeing appellant in follow up for his neck, back, and right shoulder conditions. In a January 8, 2016 decision, issued under File No. xxxxxx795, OWCP denied the new occupational disease claim because the evidence provided was insufficient to establish that the claimed work factors occurred as alleged. Counsel timely requested a hearing. which was held on September 7, 2016. During the hearing, appellant testified regarding his employment duties and the May 30, 2013 employment injury.

In a November 2, 2016 decision, issued under File No. xxxxxx795, an OWCP hearing representative modified the January 8, 2016 decision to reflect that the factual component of appellant’s claim had been established, but denied the claim, finding the medical evidence of record insufficient to establish the claim. The decision referenced evidence found in File No. xxxxxx474. Counsel subsequently requested reconsideration. In a merit decision dated February 8, 2017, OWCP denied modification of the prior decisions.

The Board notes that there are no medical reports found in OWCP File No. xxxxxx795 dated between June 2013, when appellant returned to work following the May 30, 2013 employment injury, and December 13, 2013, when he stopped work and filed the recurrence claim, now adjudicated as an occupational disease claim. The medical evidence in File No. xxxxxx795 begins with a cervical spine magnetic resonance imaging (MRI) scan dated March 8, 2013 which demonstrated disc herniations at C3-4, C4-5, C5-6, and a disc bulge at C2-3. The next report is a treatment note dated December 19, 2013 in which Dr. John M. Olsewski, a Board-certified orthopedic surgeon, indicated that he was seeing appellant for the first time. Dr. Olsewski described the May 30, 2013 work injury, listed findings, noted cervical spine MRI scan findings, and diagnosed cervical radiculopathy.

The Board has duly considered the matter and concludes that this 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.4 Appellant has a claim, adjudicated by OWCP under File No. xxxxxx474, accepted for right shoulder sprain, caused by a May 30, 2013 employment injury. The medical evidence of record in File No. xxxxxx795, begins on December 19, 2013 and does not contain prior medical evidence contained in File No. xxxxxx474. As these two case files have not been administratively combined, the Board is unable to determine whether all pertinent evidence was reviewed prior to the denial of the instant occupational disease claim, and is unable to properly adjudicate this appeal. As the record before the Board is incomplete and would not permit an informed

3
File No. xxxxxx795 is the claim presently before the Board.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).

2 adjudication of the case by the Board, the case must be remanded to OWCP to administratively combine the files and for further reconstruction and development deemed necessary, to be followed by an appropriate de novo decision.5

IT IS HEREBY ORDERED THAT the February 8, 2017 and November 2, 2016 decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded for further proceedings consistent with this order of the Board.6

Issued: February 2, 2018
Washington, DC

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

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

5
See W.B., Docket No. 15-1751 (issued March 8, 2016).
6
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board effective December 11, 2017.

3