R.S. and U.S. Postal Service, South Suburban Processing & Distribution Center, Bedford Park, IL (Board decision, April 28, 2021)

ECAB remand decision. The Board set aside OWCP's April 23, 2020 decision and returned the request for an increased schedule award for combined review with an earlier claim and a new decision. Entitlement to an increased award 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

R.S., a postal distribution supervisor, sought an increased schedule award after receiving an award for four percent permanent impairment of her right leg. She also had an earlier accepted back injury claim. The Board found that OWCP had not combined the two files despite an earlier direction to do so, leaving the record incomplete for the award decision. It set aside the denial and directed OWCP to combine the files and issue a new decision. The Board did not decide whether a larger award is due.

Decision snapshot

• Authority: OWCP procedures for combining related injury claim files.
• Outcome: Denial of an increased schedule award set aside; claim remanded for combined file review.
• Key point: OWCP needed both injury files before deciding the impairment claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.S., Appellant
)
) Docket No. 20-1232
and ) Issued: April 28, 2021
)
U.S. POSTAL SERVICE, SOUTH SUBURBAN
)
PROCESSING & DISTRIBUTION CENTER,
)
Bedford Park, IL, 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
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On June 1, 2020 appellant, through counsel, filed a timely appeal from an April 23, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 20-1232.

On July 31, 2014 appellant, then a 49-year-old distribution operations supervisor, filed an occupational disease claim (Form CA-2) alleging that, since her prior April 2, 2014 work-related back injury,2 she experienced lumbar radiculopathy and severe pain and cramping in her right foot. She stopped work on April 2, 2014. OWCP accepted appellant’s claim for tenosynovitis of the

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 had a prior claim for an April 2, 2014 traumatic injury which OWCP accepted for lumbosacral spondylolisthesis, lumbar spinal stenosis, lumbar spine sprain, and left hip enthesopathy, under OWCP File No. xxxxxx798. right foot and ankle and right idiopathic peripheral neuropathy, and assigned the claim OWCP File No. xxxxxx755.

On June 24, 2016 appellant filed a claim for a schedule award (Form CA-7).

By decision dated March 8, 2017, OWCP granted appellant a schedule award for four percent permanent impairment of the right lower extremity due to her accepted right foot and ankle injuries. The period of the award ran for 11.52 weeks from June 2 to August 21, 2016. On March 17, 2017 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on August 30, 2017.

By decision dated October 19, 2017, OWCP’s hearing representative affirmed the March 8, 2017 decision. Because of cross-referencing between the files, she directed OWCP to administratively combine appellant’s prior claim under OWCP File No. xxxxxx798 with the present claim, OWCP File No. xxxxxx755, to provide a complete and accurate factual and medical history.

OWCP, by decision dated November 25, 2019, denied appellant’s claim for an increased schedule award. On December 2, 2019 appellant, through counsel, again requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on March 10, 2020.

By decision dated April 23, 2020, the hearing representative affirmed the November 25, 2019 decision.

The Board has duly considered the matter and finds that this case is not in posture for decision. OWCP’s procedures provide that cases should be administratively combined where correct adjudication depends on cross-referencing between files and where two or more injuries occur to the same part of the body.3 The medical evidence of record indicates that appellant’s alleged left foot conditions in the present claim may be causally related to her accepted back conditions in OWCP File No. xxxxxx798. Although directed by the hearings representative to combine the files, the electronic case record as transmitted to the Board, however, indicates that they had not been combined. Due to frequent cross-referencing of the claims, for a full and fair adjudication, the case must be returned to OWCP to administratively combine the current case record, OWCP File No. xxxxxx755, with OWCP File No. xxxxxx798. This will allow OWCP to consider all relevant claim files in developing appellant’s schedule award claim.4

Accordingly, the Board will remand the case to OWCP to administratively combine OWCP File Nos. xxxxxx755 and xxxxxx798. Following this and other such development as deemed necessary, OWCP shall issue a de novo decision on appellant’s increased schedule award claim.

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).
4
Id.

2
 IT IS HEREBY ORDERED THAT the April 23, 2020 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: April 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3