L.S. and Department of the Air Force, McGuire Air Force Base, NJ (Board decision, October 15, 2020)

ECAB remand decision. April 2, 2019 denial set aside; claim remanded. 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

L.S., an Air Force child development educational technician, sought to add several conditions to an accepted injury claim after lifting and carrying a child at work. The Board found that her current claim and an earlier accepted claim both involved injuries to her back or shoulder. It directed OWCP to combine the files so it could consider all relevant evidence before deciding whether to expand the accepted conditions. The Board set aside OWCP’s April 2, 2019 denial and remanded.

Decision snapshot

• Authority: OWCP claim file combination when adjudication requires cross referencing related injuries.
• Outcome: April 2, 2019 denial set aside; claim remanded.
• Key point: Related back and shoulder claim files needed to be reviewed together.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 19-1216
) Issued: October 15, 2020
DEPARTMENT OF THE AIR FORCE,
)
McGUIRE AIR FORCE BASE, NJ, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 6, 2019 appellant filed a timely appeal from an April 2, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1216.1

On June 11, 2018 appellant, then a 55-year-old educational technician (child development), filed a traumatic injury claim (Form CA-1) alleging that on that date she injured her right arm and low back when she lifted and carried a disruptive child out of the classroom, while in the performance of duty. On July 23, 2018 OWCP accepted the claim, assigned OWCP File No. xxxxxx772, for lumbar strain and right shoulder sprain. By decision dated July 25, 2018, it denied expansion of the acceptance of appellant’s claim to include the additional conditions of left middle finger contusion, lumbosacral arthritis, cervical arthritis, lumbar degenerative disc disease (DDD), spondylolisthesis at L4-L5, lumbar radiculopathy, and right shoulder bursitis, finding that the medical evidence of record was insufficient to establish causal relationship between those

1
The Board notes that, following the April 2, 2019 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.

conditions and the accepted employment injury. OWCP subsequently received additional medical evidence in support of the request for expansion and on December 19, 2018 appellant requested reconsideration.2 By decision dated April 2, 2019, OWCP denied modification of its July 25, 2018 decision.3

The Board, having duly considered the matter, finds that this case is not in posture for decision. Appellant has a prior claim for a November 21, 2005 traumatic injury, assigned OWCP File No. xxxxxx817. That claim was accepted for lumbar and thoracic back sprains. OWCP’s procedures provide that cases should be administratively combined when correct adjudication depends on cross-referencing between files and when two or more injuries occur to the same part of the body.4 As the instant claim under OWCP File No. xxxxxx772 and the claim under OWCP File No. xxxxxx817 both involve injuries to appellant’s back/shoulder, these claims must be administratively combined for a full and fair adjudication of her present claim. This will allow OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s request to expand the acceptance of her claim to include the additional conditions of left middle finger contusion, lumbosacral arthritis, cervical arthritis, lumbar DDD, spondylolisthesis at L4- L5, lumbar radiculopathy, and right shoulder bursitis.

Accordingly, the Board will remand the case to OWCP to administratively combine OWCP File Nos. xxxxxx772 and 817. Additional OWCP files involving appellant’s back and/or shoulder, if any, should also be administratively combined with the aforementioned OWCP files. Following this and other such further development as deemed necessary, OWCP shall issue a de novo merit decision.

2
Appellant had also requested payment of wage-loss compensation, which OWCP denied on September 28, 2018. OWCP, however, has not issued a new decision regarding appellant’s request for reconsideration of the September 28, 2018 decision. 3 Id.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000); see also S.D., Docket No. 19-0590 (issued August 28, 2020).

2

IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’ Compensation Programs is set aside and this case is remanded for further proceedings consistent with this order of the Board.

Issued: October 15, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3