D.S. and U.S. Postal Service, Post Office, Absecon, NJ (Board decision, March 20, 2020)

ECAB remand decision. The Board set aside OWCP’s November 9, 2018 decision concerning terminated compensation and medical benefits. OWCP must combine the related claim files and issue a new decision; entitlement under those claims 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

A postal employee challenged the termination of wage loss compensation and medical benefits connected to two accepted back injury claims. OWCP had decided both claims, but the Board’s record omitted one of the claim files. The Board found that it could not assess the termination or continued entitlement without the related file. It set aside OWCP’s decision and directed the agency to combine the files, review disability and medical benefits under both claims, and issue a new decision.

Decision snapshot

• Authority: FECA record development and claim file combination.
• Outcome: OWCP’s November 9, 2018 decision set aside; claims remanded.
• Key point: The Board could not review both benefit claims without the missing related file.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.S., Appellant
)
)
and ) Docket No. 19-0279
) Issued: March 20, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Absecon, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge JANICE B. ASKIN, Judge

On November 19, 2018 appellant filed a timely appeal from a November 9, 2918 decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards docketed the appeal as 19-0279.2

This case has previously been before the Board.3 The facts and circumstances as set forth in the Board’s prior decision is incorporated herein by reference. The relevant facts are set forth below.

1
Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. § 501.5(b).
By order dated December 10, 2019, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0279 (issued December 10, 2019). 2 The Board notes that, following the November 9, 2018 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “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. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 3 Docket No. 13-0228 (issued July 12, 2013).
 On December 7, 2007 appellant, then a 40-year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that he injured his back, neck, and right shoulder that day when he slipped and fell in the parking lot while in the performance of duty. OWCP accepted the claim for sprain of back, lumbar region, and sprain of shoulder and upper arm, acromioclavicular, right. Appellant stopped work on the date of injury and received continuation of pay through January 20, 2008. He received wage-loss compensation on the supplemental rolls as of January 20, 2008 and on the periodic rolls as of April 12, 2009. OWCP assigned the claim File No. xxxxxx062.

By decision dated May 11, 2012, OWCP terminated appellant’s wage-loss compensation and medical benefits. By nonmerit decision dated September 14, 2012, it denied his August 16, 2012 reconsideration request. On November 6, 2012 appellant filed an appeal with the Board. By decision dated July 12, 2013, the Board found that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits for the accepted lumbar and right shoulder sprains, but that it did not meet its burden to terminate right shoulder tendinitis.4

OWCP thereafter paid retroactive wage-loss compensation to the date of termination, and returned appellant to the periodic rolls. Appellant returned to part-time modified duty work on September 12, 2014, and OWCP adjusted his monetary compensation accordingly.

On January 16, 2015 appellant was in a motor vehicle accident that was not employment related. He stopped work on that date.

In August 2015, OWCP referred appellant to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a second-opinion evaluation. The statement of accepted facts (SOAF) provided to Dr. Askin indicated that appellant had an additional claim for a May 22, 2003 injury, adjudicated by OWCP under File No. xxxxxx445, and accepted for lumbosacral sprain. The SOAF indicated that, following the 2003 injury, appellant had returned to full-time limited duty. OWCP instructed Dr. Askin to base his opinion on the SOAF.

Dr. Askin opined that appellant had no residuals of the accepted conditions, and as such, on February 1, 2016, OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits for both File No. xxxxxx445 and File No. xxxxxx062. By decision dated March 4, 2016, OWCP finalized the termination, concluding that appellant had no residuals or continuing disability as a result of either the May 22, 2003 or the December 7, 2007 accepted employment injuries.

Appellant requested a hearing with OWCP’s Branch of Hearings and Review on April 1, 2016. By decision dated September 2, 2016, a hearing representative affirmed the March 4, 2016 decision.5

4
Id.
5
Appellant was separated from the employing establishment due to disability effective July 10, 2016.

2
 By decisions dated December 16, 2016, and March 20, June 30, and November 21, 2017, OWCP denied modification of its prior decisions.6

Appellant next requested reconsideration on June 5, 2018. He maintained that his disability since the January 16, 2015 motor vehicle accident was employment related, that he had additional compensable conditions, and that File No. xxxxxx445 remained open, noting that low back surgery had been authorized. Appellant submitted additional medical evidence.

By decision dated November 9, 2018, OWCP found the evidence submitted of insufficient probative value to modify its prior decisions.

The Board has duly considered the matter and finds that this case is not in posture for decision. Upon review of the case record submitted by OWCP, the Board finds that the record before it is incomplete.

OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the issues depends on frequent cross-referencing between files.7 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.8 As noted, by decision dated March 4, 2016, OWCP terminated appellant’s wage-loss compensation and medical benefits under both File No. xxxxxx062 and File No. xxxxxx445. Both File No. xxxxxx445 and File No. xxxxxx062 are accepted for lumbar conditions. The case record before the Board, however, does not contain File No. xxxxxx445. As these two case files have not been administratively combined, the Board is unable to determine if OWCP properly terminated appellant’s wage-loss compensation and medical benefits under either or both files on March 4, 2016 and, if so, whether appellant has met his burden of proof to establish continuing disability and/or entitlement to medical benefits in either case after that date.9

For full and fair adjudication, the case must be returned to OWCP to administratively combine the current case record with OWCP File No. xxxxxx445 to determine appellant’s disability status and entitlement to medical benefits under both claims.10

Following this and such further development as it deems necessary, OWCP shall issue a de novo decision. Accordingly,

6
Appellant had requested reconsideration on October 3 and December 24, 2016, April 4 and August 31, 2017. He submitted medical evidence with each request. 7 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000); D.E., Docket No. 19-0880 (issued January 6, 2020). 8 D.E., id.
9
See T.M., Docket No. 19-1065 (issued December 17, 2019).
10
Id.

3
 IT IS HEREBY ORDERED THAT the November 9, 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.

Issued: March 20, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4