T.H. and U.S. Postal Service, Main Post Office, Corning, NY (Board decision, October 6, 2022)

ECAB remand decision. The Board set aside OWCP’s December 26, 2019 decision and directed OWCP to issue a new decision on the worker’s recurrence claim. Entitlement to compensation 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 sought compensation after her right shoulder symptoms returned following an accepted work injury. The Board had previously ordered OWCP to develop her filing as a recurrence claim and issue a new decision. OWCP combined the claim files and sent a development letter, but it issued another decision on the occupational disease claim instead of deciding the recurrence claim. The Board set that decision aside and ordered OWCP to decide the recurrence claim. It did not decide whether the carrier was entitled to compensation.

Decision snapshot

• Authority: The Board’s earlier remand required a new OWCP decision on the recurrence claim.
• Outcome: OWCP decision set aside; recurrence claim remanded for a new decision.
• Key point: Combining files and sending a development letter did not satisfy the earlier order to decide the recurrence claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.H., Appellant
)
)
and ) Docket No. 20-0861
) Issued: October 6, 2022
U.S. POSTAL SERVICE, MAIN POST OFFICE,
)
Corning, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Lonnie L. Boylan, for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

On March 6, 2020 appellant, through her representative, filed a timely appeal from a December 26, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-0861.

On September 12, 2017 appellant, then a 48-year-old rural mail carrier, filed a notice of recurrence (Form CA-2a) alleging that, on September 7, 2017, she sustained a recurrence of disability due to a July 18, 2017 employment-related right shoulder injury. 2 OWCP converted

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 previously filed a traumatic injury claim (Form CA-1), alleging that on July 18, 2017 she sustained a right shoulder strain when she lost her balance on uneven pavement and fell forward onto her outstretched right arm while delivering a package in the performance of duty. OWCP assigned th at claim OWCP File No. xxxxxx871 and accepted it for right shoulder sprain. It subsequently expanded the acceptance of her claim to include right acromioclavicular (AC) joint strain. Appellant returned to full, unrestricted duty on July 22, 2017. However, she stopped work again and filed wage-loss compensation claims (Form CA-7) for total disability from work commencing September 7, 2017. appellant’s recurrence claim to a new occupational disease claim and assigned the present claim OWCP File No. xxxxxx128.

Appellant submitted medical evidence from Dr. Joel C. McClurg, an orthopedic surgeon.

In a development letter dated February 26, 2018, OWCP informed appellant of the deficiencies of her occupational disease claim. It advised her of the type of additional factual and medical evidence required and provided a questionnaire for her completion. By separate development letter of even date, OWCP also requested additional information from the employing establishment, including comments from a knowledgeable supervisor regarding the accuracy of appellant’s statements and a copy of her position description. It afforded both parties 30 days to respond.

In narrative statements dated March 4 and 19, 2018, appellant described the circumstances surrounding her July 18, 2017 work-related injury and subsequent medical treatment.

Appellant submitted additional medical evidence.

In a letter dated March 19, 2018, Postmaster B.C., acknowledged that appellant’s narrative was accurate. Postmaster B.C. submitted a copy of appellant’s official position description and listed the physical requirements of the position.

By decision dated April 4, 2018, OWCP denied appellant’s occupational disease claim, finding that she had not submitted a rationalized medical opinion explaining how her diagnosed right shoulder conditions were causally related to the accepted factors of her federal employment.

On October 1, 2018 appellant, through her representative, requested reconsideration and submitted additional evidence.

By decision dated December 27, 2018, OWCP denied modification of its April 4, 2018 decision.

Appellant, through her representative, appealed to the Board.

By decision dated September 9, 2019,3 the Board set aside OWCP’s December 27, 2018 decision and remanded the case for OWCP to develop appellant’s occupational disease claim under OWCP File No. xxxxxx128 as a claim for recurrence of disability under OWCP File No. xxxxxx871 pursuant to OWCP’s procedures for a claimed recurrence within 90 days of a return to work.4 The Board also directed OWCP to administratively combine OWCP File Nos. xxxxxx871 and xxxxxx128, followed by the issuance of a de novo decision.

On September 17, 2019 OWCP administratively combined OWCP File Nos. xxxxxx871 and xxxxxx128, with OWCP File No. xxxxxx871 designated as the master file.

3
Id.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013).

2
 In a development letter dated October 30, 2019 under OWCP File No. xxxxxx128, OWCP informed appellant that in accordance with the September 9, 2019 Board decision it had issued a development letter dated September 17, 2019, regarding appellant’s recurrence claim under OWCP File No. xxxxxx871. The September 17, 2019 development letter indicated that OWCP had received her Form CA-2a signed on September 12, 2017. It advised appellant of the definition of a recurrence of disability and the type of evidence required to establish her claim. OWCP afforded her 30 days to submit additional evidence.

By decision dated December 26, 2019, OWCP denied modification of the April 4, 2018 decision in OWCP File No. xxxxxx128, finding that appellant had not established a medical condition causally related to the accepted factors of her employment.

The Board, having duly considered this matter, finds this case not in posture for decision.
As noted, by decision dated September 9, 2019,5 the Board set aside OWCP’s December 27, 2018 decision and remanded the case to OWCP to develop appellant’s occupational disease claim under OWCP File No. xxxxxx128 as a claim for recurrence of disability under OWCP File No. xxxxxx871. As appellant filed a notice of recurrence within 90 days of her return to work, and because she continued to note right shoulder conditions following her return to work, the claim should have been developed pursuant to OWCP’s procedures for a claimed recurrence within 90 days of a return to work. 6 The Board also directed OWCP to administratively combine OWCP File Nos. xxxxxx871 and xxxxxx128, followed by the issuance of a de novo decision. While OWCP administratively combined appellant’s claims and issued a recurrence claim development letter dated September 17, 2019, it failed to issue a de novo decision on appellant’s recurrence claim under OWCP File No. xxxxxx871, pursuant to OWCP’s procedures for a claimed recurrence within 90 days of a return to work as ordered in the September 9, 2019 Board decision.

The case must therefore be remanded. On remand, OWCP shall adjudicate appellant’s recurrence claim as previously ordered by the Board. Following any further development as deemed necessary it shall issue a de novo decision regarding appellant’s recurrence claim under OWCP File No. xxxxxx871. Accordingly,

5
Id.
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013).

3
 IT IS HEREBY ORDERED THAT the December 26, 2019 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: October 6, 2022
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4