E.C. and Department of Veterans Affairs, Veterans Administration Medical Center, Canandaigua, NY (Board decision, May 2, 2018)

ECAB remand decision. The Board set aside OWCP’s May 25, 2017 denial and returned E.C.’s respiratory claim for combined-file review and a new decision. Whether the claim is a new injury or a recurrence 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

E.C., a VA worker, filed a respiratory condition claim after OWCP had accepted asthma from a prior chemical exposure. OWCP referred to evidence in the earlier file while denying the new claim, but that file was absent from the record before the Board. The Board ordered the related files combined. OWCP must then decide whether the condition is a new work injury or a recurrence.

Decision snapshot

• Authority: 5 U.S.C. § 8124(a).
• Outcome: May 25, 2017 respiratory claim denial set aside and remanded.
• Key point: The earlier accepted asthma file was necessary to review the new claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.C., Appellant
)
)
and ) Docket No. 18-0186
) Issued: May 2, 2018
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Canandaigua, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas S. Harkins, 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 ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 2, 2017 appellant, through counsel, filed a timely application for review from a May 25, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease claim. The Board docketed the appeal as No. 18-0186.

On July 20, 2015 appellant, then a 56-year-old recreation therapist, filed an occupational disease claim (Form CA-2), assigned File No. xxxxxx804, alleging an allergic reaction and respiratory distress due to factors of her federal employment. She alleged that she first became aware of these conditions and their relationship to her employment on July 2, 2015. Appellant

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. asserted that, following a December 14, 20142 injury, under File No. xxxxxx227, she returned to work in an alternate-duty assignment at an offsite facility when she experienced the same symptoms she had previously experienced while working at the employing establishment facility on December 14, 2014. She stopped work on July 13, 2015. The claim for this previously accepted work injury, to which OWCP assigned File No. xxxxxx227, is not presently before the Board.3

On November 18, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that she sustained a recurrence of disability on July 2, 2015 due to a previous December 14, 2014 injury. She explained that because she was unable to return to an employing establishment facility due to her reaction to chemicals used in her work area, she was assigned to off-site facilities where she was exposed to chemical cleaning products which caused her respiratory symptoms to recur. Appellant submitted medical evidence attributing her claimed condition and resultant disability to her previous work injury. On December 7, 2015 OWCP determined that the recurrence claim should be adjudicated as a new occupational disease claim and assigned File No. xxxxxx670. However, on March 18, 2016 it deleted the claim under File No. xxxxxx670 because it had created two separate cases for the same injury. OWCP moved the documents from File No. xxxxxx670 into the case record for File No. xxxxxx804. In a March 22, 2016 decision, OWCP denied appellant’s occupational disease claim under File No. xxxxxx804 as the medical evidence of record did not contain a medical diagnosis in connection with the accepted employment factors. By decisions dated March 9 and May 25, 2017, OWCP denied modification of its prior decisions denying appellant’s claim.

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.4 In the May 25, 2017 decision, OWCP found that “[u]pon review of the entirety of the medical evidence and also upon review of documents under [File No.] [xxxxxx]227, which was accepted by this Office for Extrinsic Asthma with Acute Exacerbation (Airway Hyperreactivity Syndrome Induced by Chemical Inhalation), your physicians do not specifically provide a valid medical condition in connection to your cited work factors.” The evidence pertaining to File No. xxxxxx227, however, is not in the case record presently before the Board.

For a full and fair adjudication, this case must be returned to OWCP to combine the current case record with File No. xxxxxx227. On remand OWCP shall determine whether appellant

2
The Board notes that on the claim form, appellant noted December 14, 2015. However, this appears to be a typographical error as it postdates the submission of the form. A list of appellant’s OWCP cases found in this case record indicates the date of injury in File No. xxxxxx227 as December 14, 2014. 3 OWCP indicated that it accepted the claim in File No. xxxxxx227 for extrinsic asthma with acute exacerbation (airway hyperreactivity syndrome induced by chemical inhalation).
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).

2 sustained either a new work injury or a recurrence of disability due to her previously accepted employment injury.5 Following this and such further development as OWCP deems necessary, it shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the May 25, 2017 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further action consistent with this decision.

Issued: May 2, 2018
Washington, DC

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

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

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

5
See L.Z., Docket No. 11-1415 (issued December 12, 2011).

3