D.F. and U.S. Postal Service, Jamaica Main Post Office, Jamaica, NY (Board decision, August 4, 2020)

ECAB remand decision. The Board set aside OWCP's October 23, 2019 decision and ordered it to combine D.F.'s related claim files before deciding her shoulder claim again. Whether the February 2019 incident caused a compensable injury 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

D.F., a mail carrier, sought compensation for a left shoulder condition after reporting a new work incident in February 2019. OWCP denied the claim, and its hearing representative relied on other shoulder injury files while affirming the denial. The Board found that those related files had not been combined, leaving the record it could review incomplete. It set aside the denial and directed OWCP to combine the files and issue a new decision. The order does not decide whether the shoulder condition is work related.

Decision snapshot

• Authority: FECA procedures for combining related claim files and maintaining the decision record.
• Outcome: October 23, 2019 decision set aside; claim remanded for file combination and a new decision.
• Key point: The Board could not review a decision based on related claim files absent from the adjudicated record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.F., Appellant
)
)
and ) Docket No. 20-0354
) Issued: August 4, 2020
U.S. POSTAL SERVICE, JAMAICA MAIN
)
POST OFFICE, Jamaica, 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:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

On December 3, 2019 appellant, through counsel, filed a timely appeal from an October 23, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 20-0354.

On February 11, 2019 appellant, then a 39-year-old mail carrier, filed an occupational disease claim (Form CA-2)2 alleging that she aggravated her preexisting left shoulder condition which initially occurred from a slip and fall at work in 2015, and developed bursitis of the left shoulder due to factors of federal employment, including driving long periods on February 8, 2019.

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 originally filed an occupational disease claim on February 11, 2019, but at an oral hearing held on September 4, 2019 she clarified that she sustained a new traumatic injury on February 8, 2019. By decision dated May 16, 2019, OWCP denied this claim finding that she had not established the factual component and therefore the requirements had not been met to establish an injury as defined by FECA. On May 29. 2019 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated October 23, 2019, OWCP’s hearing representative affirmed the denial of the February 8, 2019 claim with modification noting that appellant had previously filed a series of claims for left shoulder injuries. The hearing representative indicated that OWCP File Nos. xxxxxx948, xxxxxx550, xxxxxx521, and xxxxxxx299 should be administratively combined.

The Board has duly considered the matter and concludes that this case is not in posture for decision. OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the issue(s) depends on frequent cross-referencing between files.3 For example, if a new injury is reported for an employee who previously filed a claim for a similar condition or the same part of the body, doubling is required.4 OWCP’s hearing representative indicated in the October 23, 2019 decision in the current file, OWCP File No. xxxxxx948, that she reviewed OWCP File No. xxxxxx550 in which appellant claimed a left shoulder injury, OWCP File No. xxxxxx521 which appellant claimed a left shoulder sprain, and OWCP File No. xxxxxxx299 in which appellant claimed a traumatic shoulder injury on May 19, 2016 in reaching her decision and recommending that the claims be combined. However, the claims were not combined at the time of the hearing and have yet to be combined. Therefore, the Board is unable to review the necessary information upon which the hearing representative relied.5

For a full and fair adjudication, the case must be returned to OWCP to administratively combine File Nos. Nos. xxxxxx948, xxxxxx550, xxxxxx521, and xxxxxxx299. Following this and such further development as it deems necessary, OWCP shall issue a de novo decision. Accordingly,

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000); R.S., Docket No. 19-0416 (issued November 26, 2019). 4 Id.; E.P., Docket No. 18-1333 (issued March 22, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).
5
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. Evidence may not be incorporated by reference, nor may evidence from another individual’s case file be used. Evidence contained in another of the claimant’s case file(s) may be used, but a copy of that evidence should be placed into the case file being adjudicated. All evidence that forms the basis of a decision must be in that claimant’s case record. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a (June 2011).

2
 IT IS HEREBY ORDERED THAT the October 23, 2019 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: August 4, 2020
Washington, DC

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

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

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

3