A.F. and U.S. Postal Service, Post Office, Sag Harbor, NY (Board decision, March 26, 2020)

ECAB remand decision. The Board set aside OWCP’s November 19, 2018 denial and returned the claim for a combined case record and a new decision. The left upper extremity claim 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 rural mail carrier claimed that years of handling and delivering mail caused left hand and arm conditions, including carpal tunnel syndrome. OWCP denied the claim after referring to medical reports from an earlier accepted left hand claim. The Board found that OWCP had neither combined the two claim files nor placed the referenced reports in the current record. It set aside the denial and directed OWCP to combine the files, undertake any needed development, and issue a new decision on the left upper extremity claim.

Decision snapshot

• Authority: 20 C.F.R. § 501.2(c)(1), limiting Board review to the record before OWCP.
• Outcome: OWCP’s November 19, 2018 denial set aside; left upper extremity claim remanded for a combined record and new decision.
• Key point: OWCP relied on medical reports from A.F.’s earlier claim without including them in the record the Board had to review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.F., Appellant
)
)
and ) Docket No. 19-0676
) Issued: March 26, 2020
U.S. POSTAL SERVICE, POST OFFICE,
)
Sag Harbor, NY, 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, Deputy Chief Judge JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On February 5, 2019 appellant, through counsel, filed an appeal from a November 19, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 19-0676.

On March 7, 2017 appellant, then a 53-year-old rural carrier, filed an occupational disease claim (Form CA-2) alleging that she sustained injury to her left upper extremity due to factors of her federal employment. She claimed that, for the past 25 years, she had used her hands to lift, hold, carry, and deliver mail. Appellant noted that she first became aware of her claimed condition and its relation to her employment on July 1, 2016.2 She had stopped work on February 3, 2016.

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 Appellant filed two Forms CA-2 on March 7, 2017 which contain substantially similar content, although one form lists left carpal tunnel syndrome as the claimed injury and the other lists left Dupuytren’s contracture. In an accompanying statement, appellant alleged that her present left upper extremity condition was also related to September 24, 2015 left hand surgery which was necessitated by a prior employment-related injury. Appellant submitted an August 24, 2016 report from Dr. James A. Brady, a Board-certified hand surgeon, who indicated that appellant presented with left thumb pain complaints and exhibited symptoms of left carpal tunnel syndrome and Dupuytren’s contracture of the left hand. On September 14, 2016 Dr. Brady advised that recent diagnostic testing showed bone spurs in appellant’s left thumb and that his examination confirmed left carpal tunnel syndrome.3 After OWCP requested, on March 16, 2017, that appellant submit additional evidence, she submitted an April 14, 2017 report from Dr. Juan J. Gargiulo, a Board-certified anesthesiologist, who diagnosed several conditions, including left carpal tunnel syndrome and chronic pain syndrome.

By decision dated April 26, 2017, OWCP denied appellant’s claim finding that she had not submitted medical evidence sufficient to establish causal relationship between the claimed conditions and the accepted employment duties. It noted that Dr. Brady failed to provide medical rationale regarding the present occupational disease claim given that appellant previously had a “similar case” under OWCP File No. xxxxxx863, which had been accepted for left hand osteoarthritis.4

On May 26, 2017 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on November 15, 2017.

By decision dated December 22, 2017, OWCP’s hearing representative affirmed OWCP’s April 26, 2017 decision. She advised that, in reaching her determination, she had reviewed medical reports associated with appellant’s prior left upper extremity claim under OWCP File No. xxxxxx863, including: reports dated between January 17 and June 29, 2016 from Dr. Teresa Habacker, a Board-certified hand surgeon; reports dated between July 18 and October 27, 2016 from Dr. Gargiulo; and an August 30, 2016 report from Dr. Elizabeth White-Fricker, a Board- certified family practitioner.5

On June 19, 2018 appellant, through counsel, requested reconsideration of the December 22, 2017 decision. She submitted a June 14, 2018 report from Dr. Brady who discussed her medical history, including surgery he performed on August 1, 2017 to remove left thumb bone spurs and to decompress her left carpal tunnel.

By decision dated November 19, 2018, OWCP denied modification of its December 22, 2017 decision.

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
Appellant submitted February 17, 2016 electromyogram and nerve conduction velocity studies showing left carpal tunnel syndrome and a September 14, 2016 computerized tomography scan of the left hand showing evidence of prior surgery, mild ulna subluxation, and small left thumb erosions. 4 OWCP advised that appellant’s previous claim had a “date of injury” of March 3, 2014.
5
The hearing representative asserted that none of these reports addressed appellant’s work duties or contained an opinion relating these duties to her current left upper extremity condition.

2 videotapes, or drawings.6 Evidence may not be incorporated by reference, nor may evidence from another claimant’s case file be used.7 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.8 All evidence that forms the basis of a decision must be in that claimant’s case record.9

In adjudicating appellant’s present claim, OWCP File No. xxxxxx910, OWCP specifically referenced medical evidence obtained from an earlier claim, OWCP File No. xxxxxx863. However, it did not combine the case records related to appellant’s left upper extremity claim or incorporate the referenced evidence into the current case record.10 As noted, all evidence that forms the basis of a decision must be included in the case record.11 Because OWCP neglected to include evidence that helped to form the basis for its determination regarding appellant’s left upper extremity claim in the current case record (i.e., evidence from OWCP File No. xxxxxx863), the Board is not in a position to make an informed decision regarding appellant’s entitlement to FECA benefits.12 Therefore, the case shall be remanded to OWCP to administratively combine OWCP File Nos. xxxxxx863 and xxxxxx910. After this and other further development deemed necessary, OWCP shall issue a de novo decision regarding appellant’s claim for a left upper extremity injury.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a (June 2011).
7
Id.
8
Id.
9
Id. See also G.O., Docket No. 18-1483 (issued June 20, 2019).
10
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000) (cases should be administratively combined when correct adjudication of the issues depends on frequent cross-reference between files). 11 See supra note 9.
12
See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016);
M.C., Docket No. 15-1706 (issued October 22, 2015).

3
 IT IS HEREBY ORDERED THAT the November 19, 2018 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further action consistent with this order of the Board.

Issued: March 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

4