G.D. and U.S. Postal Service, Chicago Loop Clark Street Post Office, Chicago, IL (Board decision, May 4, 2020)

ECAB remand decision. The Board set aside OWCP’s June 14 and September 6, 2019 decisions and remanded the case. OWCP must consolidate the related injury records and issue a new decision. 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

G.D. claimed that increased use of her left arm caused injury while a prior right arm condition limited her. OWCP denied the current claim without combining several earlier accepted shoulder and arm injury files. The Board found that relevant medical evidence in those files needed to be part of the record. It set aside the claim and reconsideration decisions for consolidation and a new decision.

Decision snapshot

• Authority: 20 C.F.R. § 501.2(c)(1).
• Outcome: June 14 and September 6, 2019 decisions set aside and remanded.
• Key point: OWCP had to consolidate the related upper extremity injury files.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.D., Appellant
)
)
and ) Docket No. 19-1969
) Issued: May 4, 2020
U.S. POSTAL SERVICE, CHICAGO LOOP
)
CLARK STREET POST OFFICE, Chicago, IL,
)
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 September 26, 2019 appellant filed a timely appeal from June 14 and September 6, 2019 decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 19-1969.

On April 11, 2019 appellant, then a 52-year-old city carrier, filed an occupational disease claim (Form CA-2) alleging that she injured her left arm due to factors of her federal employment while casing mail. She noted that she first became aware of her condition and realized its relationship to her federal employment on February 5, 2019. Appellant attributed her condition to an inability to use her right arm as a result of a prior upper right extremity injury and overcompensating with the left arm. OWCP assigned File No. xxxxxx268.

OWCP has previously accepted appellant’s upper extremity claims in File No. xxxxxx341 for a left rotator cuff tear, sprain, and tendinitis, File No. xxxxxx919 for bilateral rotator cuff conditions, File No. xxxxxx288 for cervical spine conditions, and File No. xxxxxx926 for a recurrence of the right rotator cuff condition.

In a statement dated April 8 2019, appellant noted that beginning August 26, 2018 she experienced pain in her left arm, on a daily basis, due to overcompensation for her right arm, which had been surgically treated for a rotator cuff tear on October 22, 2018. She indicated that she returned to limited-duty work on January 3, 2019 and that her modified employment duties included preparing, handling, and inspecting mail, which required her to reach into tubs, bend down, and finger each piece of mail with her left arm.

In a May 15, 2019 statement, appellant noted that she had been over utilizing her left arm following recent authorized right shoulder surgery which had been performed contemporaneously with her claimed injury. She also noted that she previously had a traumatic injury claim accepted for a left shoulder rotator cuff tear under OWCP File No. xxxxxx341. Appellant explained that her attending physician was awaiting authorization from OWCP to proceed with further treatment.

By decision dated Juned 14, 2019, OWCP denied appellant’s claim finding that no medical evidence had been submitted in support of her claim and therefore she had not established a diagnosed medical condition in relation to her factors of employment.

On July 30, 2019 appellant requested reconsideration. No further evidence was received.

By decision dated September 6, 2019, OWCP denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

The Board finds that this 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, videotapes, or drawings.1 Evidence may not be incorporated by reference.2 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.3 All evidence that forms the basis of a decision must be in that claimant’s case record.4

In adjudicating appellant’s current left shoulder claim in OWCP File No. xxxxxx268, appellant has referenced her previously accepted shoulder claims which are found in OWCP File Nos. xxxxxx288, xxxxxx341, xxxxxx919, and xxxxxx926, in which she had accepted shoulder injuries and ongoing medical treatment. OWCP has not, however, administratively combined the case records for her previously accepted shoulder claims, or incorporated the relevant and contemporaneous medical evidence into the current case record.5 The Board has previously held

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a (June 2011).
2
Id.
3
Id.
4
Id.
5
See id. at 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). that 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, administratively combining the files is required.6

For a full and fair adjudication the case must be returned to OWCP to combine the current case record with OWCP File Nos. xxxxxx341, xxxxxx919, and xxxxxx926 as well as other attendant claims of relevance to her current alleged injury.7 Therefore, the case shall be remanded to OWCP for proper consolidation of case files. After OWCP has developed the record consistent with the above-noted directive, it shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the September 6 and June 14, 2019 decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: May 4, 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

6
D.L., Docket No. 17-1588 (issued January 28, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).
7
See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016).