K.R. and Department of Agriculture, Food & Safety Inspection Service, Seguin, TX (Board decision, October 30, 2020)

ECAB remand decision. December 20, 2019 decision set aside; claim 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

K.R., a federal veterinarian, sought compensation for conditions involving her limbs and back after workplace incidents. An OWCP hearing representative had ordered related injury files combined, but OWCP decided the present claim without doing so. The Board set aside OWCP’s December 20, 2019 decision and directed it to combine the relevant files before issuing a new merit decision.

Decision snapshot

• Authority: OWCP duty to combine related claim files for a full review.
• Outcome: December 20, 2019 decision set aside; claim remanded for combined file review.
• Key point: The related medical and claim records were needed to decide the present claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.R., Appellant
)
)
and ) Docket No. 20-0911
) Issued: October 30, 2020
DEPARTMENT OF AGRICULTURE, FOOD &
)
SAFETY INSPECTION SERVICE, Seguin, TX,
)
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
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 23, 2020 appellant, through counsel, filed a timely appeal from a December 20, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 20-0911.

On May 29, 2018 appellant, then a 63-year-old supervisory public health veterinarian, filed a traumatic injury claim (Form CA-1) indicating May 29 2018 as the date of injury. She alleged that on “last night at work on May 28, 2018,” she injured her left leg when a private facility employee accidently hit her left calf with a metal stool while in the performance of duty. The next day, when she attempted to rise from her desk, her left leg cramped and she fell. Appellant explained that she tried to brace, but lost her footing and fell onto her hands and the impact caused her neck to jerk backwards and her shoulders to jam. On the reverse side of the claim form the employing establishment indicated that she was injured in the performance of duty on “May 28, 2018” and stopped work on May 30, 2018. OWCP assigned the claim OWCP File No. xxxxxx302.

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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.

In an attached narrative statement dated May 29, 2018, appellant related that on May 28, 2018 she experienced pain, bruising, swelling, and cramping when her leg was hit with a metal stool. She indicated that she filed a separate traumatic injury claim (Form CA-1) for this incident.

Appellant also submitted a second narrative statement dated May 29, 2018 in which she further related that she injured her back when she fell that day.

In a June 8, 2018 development letter, OWCP advised appellant that, when her claim was first received, it appeared to be a minor injury that resulted in minimal or no lost time from work and it was administratively approved to allow payment of a limited amount of medical expenses. The merits of the claim, however, had not been formally adjudicated. OWCP informed appellant that because she had requested authorization for further medical treatment her claim would be formally adjudicated. It advised her of the deficiencies of her claim and requested additional medical evidence. OWCP afforded appellant 30 days to respond.

OWCP subsequently received medical evidence in response to the June 8, 2018 development letter.

By decision dated August 16, 2018, OWCP denied appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to establish causal relationship between appellant’s diagnosed conditions and the accepted May 29, 2018 employment incident.

On August 30, 2018 appellant, through counsel, requested an oral hearing before an OWCP hearing representative, which was held on January 9, 2019. By decision dated March 8, 2019, OWCP’s hearing representative converted appellant’s traumatic injury claim to an occupational disease claim, but denied it finding that the evidence of record was insufficient to establish causal relationship between appellant’s diagnosed conditions and the accepted factors of her federal employment. He additionally ordered that OWCP administratively combine the current claim, File No. xxxxxx302, with OWCP File No. xxxxxx090 wherein OWCP accepted traumatic left shoulder and arm conditions; OWCP File No. xxxxxx976 wherein OWCP accepted traumatic right shoulder and wrist conditions; OWCP File No. xxxxxx806 wherein OWCP accepted a traumatic left shoulder condition; and OWCP File No. xxxxxx570 wherein OWCP accepted an additional traumatic left shoulder condition. The case files have not been combined by OWCP.

On September 24, 2019 appellant, through counsel, requested reconsideration and submitted additional medical evidence.

By decision dated December 20, 2019, OWCP denied modification of OWCP’s hearing representative’s March 8, 2019 decision.

The Board, having duly considered the matter, finds that this case is not in posture for decision. OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the issues depends on frequent cross-referencing between case files.2 For example, 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, doubling is required.3 In addition to the files

2
R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c (February 2000). 3 Id.

2

listed in OWCP hearing representative’s decision, on November 16, 2015 appellant filed a traumatic injury claim (Form CA-1) alleging that on July 22, 2015 she injured her left shoulder and forearm in the performance of duty, and OWCP assigned OWCP File No. xxxxxx078.

As the claims in the following OWCP files all involve appellant’s upper extremities, OWCP File Nos. xxxxxxx302, xxxxxx090, xxxxxx976, xxxxxx806, xxxxxx570, and xxxxxx078, they 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 previously cited OWCP files. Additional OWCP files involving appellant’s shoulders, upper extremities, left lower extremity and back, 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 December 20, 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 30, 2020
Washington, DC

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

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

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

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