D.B. and U.S. Postal Service, Pittsburgh Network Distribution Center, Pittsburgh, PA (Board decision, December 31, 2019)

ECAB final decision on this appeal. The Board set aside OWCP’s August 29, 2018 denial and remanded the hand claim. OWCP must still decide whether the bilateral hand condition is compensable after completing the case record. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal custodian claimed bilateral carpal tunnel syndrome and had an earlier accepted neck injury. OWCP denied the hand claim while relying on medical evidence from the neck injury file that it had not placed in the current record. The Board could not review that missing evidence and set aside the denial. It ordered OWCP to complete the record and issue a new decision.

Decision snapshot

• Authority: OWCP duty to keep relied-upon evidence in the case record.
• Outcome: August 29, 2018 decision set aside; claim remanded.
• Key point: Evidence from another file had to be copied into the claim record before OWCP relied on it.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.B., Appellant
)
)
and ) Docket No. 19-0262
) Issued: December 31, 2019
U.S. POSTAL SERVICE, PITTSBURGH
)
NETWORK DISTRIBUTION CENTER,
)
Pittsburgh, PA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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 JANICE B. ASKIN, Judge

On November 16, 2018 appellant, through counsel, filed a timely appeal from an August 29, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-0262.

On June 10, 2015 appellant, then a 47-year-old custodian, filed an occupational disease claim (Form CA-2) for a bilateral hand condition which allegedly arose on or about December 5, 2013 due to factors of her federal employment. On her claim form, she referenced a prior work- related neck injury under OWCP File No. xxxxxx139.2 Appellant indicated that her doctors were unsure whether her current bilateral hand condition was due to her prior work-related neck injury or due to a newly acquired carpal tunnel syndrome.

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 OWCP accepted appellant’s traumatic injury claim in File No. xxxxxx139 for neck sprain, which arose on September 18, 2013.
 After further development of the case record, OWCP denied appellant’s claim finding that the medical evidence of record was insufficient to establish that her diagnosed bilateral carpal tunnel syndrome was causally related to the accepted factors of her federal employment. However, by decision dated July 28, 2016, a hearing representative set aside the prior decision and remanded the case to OWCP for further development, which included referral for a second opinion evaluation.

On remand OWCP referred appellant to Dr. Victoria M. Langa, a Board-certified orthopedic surgeon, who examined appellant on December 30, 2016 and diagnosed bilateral carpal tunnel syndrome.3 Dr. Langa indicated that appellant’s carpal tunnel syndrome was not work related.

OWCP again denied appellant’s claim by decision dated January 12, 2017. By decision dated September 20, 2017, an OWCP hearing representative found there remained an unresolved conflict in the medical opinion evidence, and therefore, set aside the January 12, 2017 decision and remanded the case for referral to an impartial medical examiner (IME).

In a report dated March 22, 2018, Dr. Mark E. Baratz, a Board-certified orthopedic surgeon serving as an IME, determined that appellant’s bilateral carpal tunnel syndrome was not work related.

By decision dated April 9, 2018, OWCP again denied appellant’s claim. It accorded the special weight of the medical evidence to the March 22, 2018 report of IME Dr. Baratz.

Counsel timely requested a hearing before a representative of OWCP’s Branch of Hearings and Review, held on July 11, 2018. He challenged OWCP’s reliance on the IME’s opinion, noting that he had not offered an alternative cause for appellant’s carpal tunnel syndrome or adequately explained why her custodial duties were insufficient to have either caused or contributed to her bilateral carpal tunnel condition.

By decision dated August 29, 2018, an OWCP hearing representative affirmed the April 9, 2018 decision, finding that the medical reports submitted in the present claim, as well as medical reports contained in File No. xxxxxx139. In affirming the decision dated April 9, 2018, the hearing representative noted that, on September 18, 2013, appellant was involved in a work- related motor vehicle accident which had been accepted for cervical strain in File No. xxxxxx139. The hearing representative further noted that OWCP had continued to develop the medical record as to her cervical strain, including sending appellant for a second opinion orthopedic examination on February 18, 2015 by Dr. Langa, who reportedly addressed appellant’s cervical sprain and also diagnosed bilateral carpal tunnel syndrome. OWCP did not image these documents the referenced medical evidence into the present claim file.

The Board finds that the case is not in posture for decision. 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,

3
Dr. Langa noted that she had previously evaluated appellant on February 18, 2015 with respect to her September 18, 2013 work-related cervical sprain.

2 videotapes, or drawings.4 Evidence may not be incorporated by reference, nor may evidence from “another claimant’s case file” be used.5 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.6 All evidence that forms the basis of a decision must be in that claimant’s case record.7

As noted, OWCP’s August 29, 2018 decision referenced evidence associated with OWCP File No. xxxxxx139. It also discussed Dr. Langa’s February 18, 2015 second opinion examination, which reportedly diagnosed bilateral carpal tunnel syndrome which is the diagnosed condition in the present claim. Although OWCP relied upon the aforementioned report in denying appellant’s claim for FECA benefits, it neglected to include the referenced information in the current case file. Because of this oversight, the Board is not in a position to make an informed decision regarding appellant’s claim.8 Therefore, the case shall be remanded to OWCP for further development to be followed by a de novo decision regarding appellant’s entitlement to FECA benefits with respect to her June 10, 2015 occupational disease claim.

IT IS HEREBY ORDERED THAT the August 29, 2018 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.

4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a) (June 2011).
5
Id.
6
Id.
7
Id.
8
See O.R., Docket No. 18-0013 (issued April 9, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016); M.C., Docket No. 15-1706 (issued October 22, 2015).

3
Issued: December 31, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4