T.S. and U.S. Postal Service, Post Office, White Plains, NY (Board decision, May 7, 2018)

ECAB remand decision. The Board set aside OWCP’s March 23, 2017 denial and returned T.S.’s occupational disease claim for combined-file review and a new merits decision. Compensation entitlement 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).

Plain-English summary

T.S., a postal clerk, claimed that her work worsened complex regional pain syndrome in her right leg. OWCP had accepted that condition in an earlier injury file, but relied on records from that file without placing them in the current claim file. The Board found the record incomplete for review. It ordered OWCP to combine the four related claim files and decide the occupational disease claim again.

Decision snapshot

• Authority: 20 C.F.R. § 501.2(c)(1).
• Outcome: March 23, 2017 denial set aside; related files to be combined on remand.
• Key point: Evidence from another claim file had to be placed in the file under review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.S., Appellant
)
)
and ) Docket No. 17-1709
) Issued: May 7, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
White Plains, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 5, 2017 appellant, through her representative, filed a timely appeal from a March 23, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as Docket No. 17-1709.

On February 1, 2016 appellant, then a 58-year-old clerk, filed an occupational disease claim (Form CA-2) alleging that she developed chronic regional pain syndrome (CRPS) as a result of her federal employment duties.1 She first became aware of her condition on April 25, 2008 and of its relationship to her federal employment on May 29, 2015. The record reflects that appellant stopped work on November 9, 2013 and did not return.

In an October 29, 2015 narrative statement, appellant explained that she had sustained an initial traumatic injury on November 29, 2007, which was accepted for contusion and sprain of the right knee/leg, and that she subsequently developed CRPS.2 She explained that her CRPS was caused by the repetitive motion of walking, standing, lifting, and carrying mail which contributed

1
The Board notes that the Form CA-2 was signed by appellant on October 30, 2015.
2
The record reflects that appellant had filed a traumatic injury claim (Form CA-1), under OWCP File No. xxxxxx176, for an injury sustained on November 29, 2007 when she was walking on the workroom floor and a plywood board that was leaning against a pole fell on her right leg. OWCP accepted the claim for right knee contusion and right knee sprain. On May 29, 2015 it expanded acceptance of the claim to include CRPS of the lower right limb. to excessive wear on her knee. Appellant reported that the condition of CRPS was not accepted by OWCP until Dr. Joseph Laico, a Board-certified orthopedic surgeon, in a March 23, 2015 second opinion examination, determined that the condition was causally related to her November 29, 2007 traumatic injury, under OWCP File No. xxxxxx176.3

By letter dated March 1, 2016, the employing establishment controverted the claim arguing that CRPS had already been accepted under OWCP File No. xxxxxx176. It further argued that appellant had not worked since September 9, 2013, and the modified assignment that she had worked was not physically demanding in nature and did not consist of the duties she had described.

Appellant submitted a June 21, 2013 medical report from Dr. Richard Dentico, Board- certified in physical medicine and rehabilitation, in support of her occupational disease claim. Dr. Dentico reported that appellant sustained a right knee injury on November 29, 2007 and was first evaluated by him on April 25, 2008. Over the course of her treatment, appellant was diagnosed with type 2 CRPS which was associated with a traumatic injury or accident. Dr. Dentico reported that appellant was totally disabled for a period of time and returned to work on March 1, 2010. However, appellant’s condition continued to worsen as she had been walking and carrying mail at her job. Dr. Dentico opined that appellant’s condition was causally related to her accepted work injury.

By decision dated May 12, 2016, OWCP denied appellant’s claim finding that the medical evidence of record failed to establish that her diagnosed condition was causally related to her accepted federal employment factors. It instructed that she had failed to provide a well-reasoned medical opinion supported by objective findings as to exactly how the claimed factors of her federal employment either directly caused or aggravated the diagnosed medical conditions of a right knee contusion and right knee sprain. OWCP further noted that the evidence of record showed that she had a preexisting medical condition to her right knee and therefore she needed to provide a detailed and well-rationalized medical report, based on a complete and accurate history, explaining the medical mechanism of her claimed right knee injury and how the diagnosed condition resulted from the claimed factors of her federal employment with differentiation shown between the claimed injury and the symptoms of the preexisting condition. In noting the evidence reviewed in its decision, OWCP noted that it has reviewed nine CA-17 forms dated from September 9, 2013 to April 14, 2015, along with 18 medical notes of Dr. Dentico dated from

3
Appellant also filed a claim for recurrence of disability (Form CA-2a) on February 11, 2009 when she experienced right knee pain while walking on the workroom floor. The claim was adjudicated by OWCP as a new traumatic injury under File No. xxxxxx382. By decision dated April 10, 2009, OWCP denied the claim for failing to establish the medical component of fact of injury. By decision dated September 30, 2009, an OWCP hearing representative affirmed the April 10, 2009 decision. By decision dated September 27, 2010, OWCP denied appellant’s request for reconsideration. On November 16, 2011 the Board affirmed the September 27, 2010 decision finding that OWCP properly refused to reopen appellant’s case for further review of the merits of her claim under 5 U.S.C. § 8128(a). Docket No. 11-0601 (issued November 16, 2011).

On May 4, 2013 appellant filed an occupational disease claim (Form CA-2) alleging an aggravation of CRPS in the right knee which she attributed to repetitive walking and standing while working her modified assignment, OWCP File No. xxxxxx160. By decision dated September 5, 2013, OWCP denied the claim as the medical evidence was insufficient to establish that the claimed condition was causally related to the identified work duties. By decision dated June 4, 2014, an OWCP hearing representative affirmed the September 5, 2013 decision.

2
September 9, 2013 through March 17, 2016. All of these reviewed documents were noted to be from File No. xxxxxx176, a claim in which CRPS had already been accepted.

On May 26, 2016 appellant, through counsel, requested an oral hearing before an OWCP hearing representative. A hearing was held on January 17, 2017 at which appellant testified in support of her occupational disease claim.

By decision dated March 23, 2017, an OWCP hearing representative affirmed the May 12, 2016 decision, finding that the medical evidence of record failed to establish that appellant’s diagnosed conditions, including CRPS, were causally related to her accepted factors of her federal employment. She noted that the issue for determination was whether the claimed CRPS condition is causally related to the identified federal employment. The hearing representative noted counsel’s argument that appellant had filed four claims which were interrelated and should be consolidated. She found, however, that the medical evidence was insufficient to establish causal relationship.

The Board finds that the case is not in posture for decision.4 Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Decisions on claims are based on the written record, which may include forms, reports, letters, and other evidence of various types such as photographs, videotapes, or drawings.5 Evidence may not be incorporated by reference, nor may evidence from a claimant’s other case file be used.6 Evidence contained in another of the claimant’s case files may be used, but a copy of that evidence should be placed into the case file being adjudicated.7 All evidence that forms the basis of a decision must be in that claimant’s case record.8 Furthermore, OWCP procedures provide for doubling case files when correct adjudication of the issues depends on frequent cross-reference between files such as when 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.9

The Board finds that the numerous CA-17 forms and the numerous medical notes signed by Dr. Dentico in File No. xxxxxx176 have not been incorporated into the current File No. xxxxxx739, nor have the files been doubled. This is especially important in light of the prior acceptance of appellant’s condition of CRPS in File No. xxxxxx176. In the instant appeal, for a full and fair adjudication, OWCP’s files pertaining to her accepted claims, including the condition of CRPS, should be combined. The case will therefore be remanded to OWCP to combine case File Nos. xxxxxx739, xxxxxx382, xxxxxx160, and xxxxxx176. Following this and such other

4
See C.R., Docket No. 17-1952 (issued February 9, 2018).
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1) (January 2000); Chapter 2.800.5a (June 2011).
6
Id.
7
Id.
8
Id.
9
Id.

3 development as deemed necessary, OWCP shall issue a de novo merit decision on appellant’s claim. Accordingly,

IT IS HEREBY ORDERED THAT the March 23, 2017 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: May 7, 2018
Washington, DC

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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

4