B.H. and U.S. Postal Service, Post Office, Elmer, NJ (Board decision, September 21, 2017)

ECAB remand decision. The Board set aside OWCP’s ruling and returned the unresolved claim or request for further action. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

B.H., a postal rural carrier, reported renewed hand pain after returning to work from an accepted bilateral wrist injury. OWCP treated her report as a new traumatic injury but also considered whether she had a recurrence. The Board found that the earlier accepted claim file was missing and had to be combined with the current file to decide either theory. It set aside the denial and sent the case back.

Decision snapshot

• Authority: FECA Procedure Manual, Chapter 2.400.8(c).
• Outcome: OWCP’s November 29, 2016 denial set aside and remanded.
• Key point: OWCP needed both claim files to decide new injury and recurrence questions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.H., Appellant
)
)
and ) Docket No. 17-1003
) Issued: September 21, 2017
U.S. POSTAL SERVICE, POST OFFICE,
)
Elmer, NJ, 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 COLLEEN DUFFY KIKO, Judge

On April 7, 2017 appellant, through counsel, filed a timely application for review from a November 29, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim. The Board docketed the appeal as No. 17-1003.

On August 11, 2015 appellant, then a 54-year-old rural carrier, filed a notice of recurrence (Form CA-2a) claiming that she sustained a recurrence of disability on August 10, 2015 due to a previous October 1, 2014 work injury. She explained that since she returned to full-duty work on August 3, 2015 following her prior injury, she had increased hand pain while performing her duties. Appellant submitted medical evidence attributing her claimed condition and resultant disability to her previous work injury. On August 20, 2015 OWCP determined that the recurrence claim should be adjudicated as a new traumatic injury claim (Form CA-1) and assigned File No. xxxxxx217. The claim for the previously accepted work injury, to which

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. OWCP assigned File No. xxxxxx656, is not presently before the Board.2 In a November 10, 2015 decision, OWCP denied appellant’s claim as the medical evidence did not establish causal relationship between a diagnosed condition and the accepted employment incident. In an April 21, 2016 decision, an OWCP hearing representative affirmed the November 10, 2015 decision. He found that the medical evidence of record was insufficient to establish either that appellant sustained a medical condition causally related to the August 10, 2015 work incident or a recurrence of disability on August 10, 2015 due to a worsening of her previous work injury. OWCP denied modification of this decision on November 29, 2016. The basis for the denial remained the same.

The Board has duly considered the matter and finds 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-referencing between files. For example, if a new injury case is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body, doubling is required.3 In the instant case, appellant had a previously accepted claim for a bilateral wrist condition, assigned File No. xxxxxx656. She then filed a recurrence claim for the same body part, which OWCP converted to a traumatic injury claim and assigned File No. xxxxxx217. OWCP denied the claim on November 10, 2015 as the medical evidence of record was insufficient to establish causal relationship. In subsequent decisions dated April 21 and November 29, 2016, it denied the claim on the same basis. OWCP also found that the medical evidence was insufficient to establish a recurrence of disability on August 10, 2015 with respect to the prior claim, File No. xxxxxx656. The evidence pertaining to File No. xxxxxx656, however, is not in the case record presently before the Board.

For a full and fair adjudication, the case must be returned to OWCP to combine the current case record with File No. xxxxxx656 and determine whether appellant sustained either a recurrence of disability due to her previously accepted employment injury or a new work injury.4 Following this and such further development as OWCP deems necessary, it shall issue a de novo decision.

2
OWCP indicated that it accepted the claim in File No. xxxxxx656 for bilateral carpal tunnel syndrome.
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).
4
See L.Z., Docket No. 11-1415 (issued December 12, 2011).

2
 IT IS HEREBY ORDERED THAT the November 29, 2016 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this decision of the Board.

Issued: September 21, 2017
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

3