R.G. and Department of Justice, Drug Enforcement Administration, Newark, NJ (Board decision, July 7, 2020)

ECAB remand decision. The Board set aside OWCP's March 25, 2019 injury denial and remanded for combined-file review. 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

R.G., a DEA special agent, claimed neck and back conditions from years of work duties. OWCP had several earlier injury files involving the same body areas but had not combined them in the record sent to the Board. The Board found that full review required those claim histories together. It directed OWCP to combine the files and issue a new merits decision.

Decision snapshot

• Authority: Federal Employees' Compensation Act and Board review procedures.
• Outcome: March 25, 2019 injury denial set aside; remanded to combine related claim files.
• Key point: Prior neck, back, and upper-extremity claims had to be considered together.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.G., Appellant
)
)
and ) Docket No. 19-1755
) Issued: July 7, 2020
DEPARTMENT OF JUSTICE, DRUG
)
ENFORCEMENT ADMINISTRATION,
)
Newark, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
Michael D. Overman, 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 August 20, 2019 appellant, through counsel, filed a timely appeal from a March 25, 2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1755.

On October 4, 2016 appellant, then a 56-year-old special agent, filed an occupational disease claim (Form CA-2) alleging that he sustained neck and back conditions due to factors of his federal employment including training in a variety of environments, hand to hand combat, long periods of sitting in a government vehicle while performing surveillance, walking, running, apprehending “defendants,” and firearm training. He noted that he first became aware of his conditions on March 6, 2009 and first realized that his conditions were caused or aggravated by his employment on August 8, 2016. This claim was assigned by OWCP as File No. xxxxxx122.

In an August 11, 2015 personal narrative statement, appellant noted that in November 1986 he had filed a traumatic injury claim, assigned by OWCP as File No. xxxxxx428, when he hit his

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. head on a metal pipe while executing a search warrant; that on August 1, 1994 he filed a traumatic injury claim, assigned by OWCP as File No. xxxxxx488, for hurting his back while moving a file cabinet in the office; that in September 1999, he filed a traumatic injury claim for back pain from executing a search warrant in May 19962; that on March 6, 2009 he filed a traumatic injury claim, assigned by OWCP as File No. xxxxxx808, for upper extremity pain due to reaching into the back seat area while in a government vehicle; and that on October 4, 2012 he filed a traumatic injury claim, assigned by OWCP as File No. xxxxxx658, regarding back pain he developed from sitting in a government vehicle for an extended period of time.

By decision dated April 20, 2017, OWCP denied appellant’s occupational disease claim in File No. xxxxxx122, finding that the medical evidence of record was insufficient to establish causal relationship between appellant’s diagnosed conditions and the accepted factors of his federal employment.3

On May 19, 2017 appellant, through counsel, requested an oral hearing which was held on August 17, 2017.

By decision dated October 30, 2017, a hearing representative set aside the May 12, 2017 OWCP decision and remanded the case for further development of the medical record.

Following further development, by decision dated February 6, 2018, OWCP again denied appellant’s occupational disease claim, finding that the medical evidence of record was insufficient to establish causal relationship between appellant’s diagnosed conditions and his accepted factors of federal employment.

On February 13, 2018 appellant, through counsel, requested an oral hearing. By decision dated April 18, 2018, a hearing representative set aside and remanded the case for further development of the medical record. The hearing representative also instructed that on remand OWCP should administratively combine File Nos. xxxxxx122, xxxxxx658, and xxxxxx808.4

By decision dated August 14, 2018, OWCP denied appellant’s occupational disease claim finding that the medical evidence of record was insufficient to establish causal relationship between his diagnosed conditions and the accepted factors of his federal employment.

On August 21, 2018 appellant, through counsel, requested an oral hearing which was held on January 15, 2019.

By decision dated March 25, 2019, a hearing representative affirmed the August 14, 2018 decision.

The Board, having duly considered the matter, finds that the case is not in posture for decision. 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

2
The Board notes that no OWCP file could be located for this claim.
3
On May 12, 2017 OWCP reissued its April 20, 2017 decision, as it had not been mailed to appellant.
4
The case record as presented to the Board does not contain a combined case record.

2 occur to the same part of the body.5 As the claims in the following OWCP files all involve appellant’s back and neck/upper extremities, OWCP File Nos. xxxxxx428, xxxxxx488, xxxxxx808, xxxxxx658, and xxxxxx122 must be administratively combined for a full and fair adjudication of appellant’s present claim. This will allow OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s current occupational disease claim.

Accordingly, the Board will remand the case to OWCP to administratively combine the case records for OWCP File Nos. xxxxxx428, xxxxxx488, xxxxxx808, xxxxxx658, and xxxxxx122. Additional OWCP files involving appellant’s back and neck/upper extremities, if any, should also be administratively combined with the aforementioned OWCP files. Following this and other such development as deemed necessary, OWCP shall issue a de novo merit decision.

IT IS HEREBY ORDERED THAT the March 25, 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: July 7, 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

5
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).

3