M.E. and Department of Defense, Defense Logistics Agency, New Cumberland, PA (Board decision, May 27, 2021)

ECAB remand decision. The Board set aside OWCP's April 21, 2020 denial and remanded for a new decision after related injury files are combined. The underlying claim remained 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

M.E., a distribution process worker, claimed injuries after tripping over a pallet at work. OWCP accepted that the incident occurred and that she had a diagnosed condition, but denied the claim because it found insufficient evidence connecting the condition to the incident. The Board noted that OWCP had previously accepted claims involving some of the same body parts but had not combined those claim files with the current record. It set aside the denial and ordered OWCP to combine the files, develop the record as needed, and issue a new decision. The order's opening paragraph prints the appeal date as October 19, 2019, while its footnote identifies an October 19, 2020 postmark; the full text preserves both dates.

Decision snapshot

• Authority: OWCP's procedure for combining related injury claim files.
• Outcome: April 21, 2020 denial set aside; claim remanded for a new OWCP decision.
• Key point: Prior accepted injury files involving the same body parts needed to be considered with the new claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.E., Appellant
)
)
and ) Docket No. 21-0094
) Issued: May 27, 2021
DEPARTMENT OF DEFENSE, DEFENSE
)
LOGISTICS AGENCY, New Cumberland, PA,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Aaron B. Aumiller, 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 October 19, 20192 appellant, through counsel, filed a timely appeal from an April 21, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 21-0094.3

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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)- (f). One hundred and eighty days from April 21, 2020, the date of OWCP’s last decision, was October 18, 2020. As this date fell on a Sunday, appellant had until the following business day, Monday, October 19, 2020, to file the appeal. Since using October 23, 2020, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R. § 501.3(f)(1). As appellant’s appeal request was postmarked October 19, 2020, the appeal is therefore timely. 3 The record provided to the Board includes evidence received after OWCP issued its April 21, 2020 decision.
However, the Board’s Rules of Procedure provides: “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. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
On February 14, 2019 appellant, then a 58-year-old distribution process worker, filed a traumatic injury claim (Form CA-1) alleging that, on that date, at approximately 8:50 a.m., she injured her left hip, chin, left shoulder, and right side of her body down to her hip and upper leg, when she caught her left foot on the pallet, causing her to lose balance, trip and fall while in the performance of duty. She stopped work that day. OWCP assigned the claim OWCP File No. xxxxxx5378. On the reverse side of the claim form, the employing establishment indicated that appellant was scheduled for surgery the following week under appellant’s prior claim under OWCP File No. xxxxx9378.4

In support of the claim, appellant submitted medical evidence and a position description for a distribution process worker.

In a March 15, 2019 development letter, OWCP advised appellant of the type of factual and medical evidence necessary to support her claim and provided a questionnaire for completion. It afforded her 30 days to respond.

Appellant submitted additional medical evidence. She also submitted an illegible statement.

By decision dated April 18, 2019, OWCP denied appellant’s claim, finding that she had not established the factual component of her claim as she had not responded to its March 15, 2019 development letter. It concluded therefore that the requirements had not been met to establish an injury as defined by FECA.

On April 30, 2019 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated October 31, 2019, OWCP’s hearing representative modified OWCP’s April 18, 2019 decision, finding that appellant had established that the February 14, 2019 employment incident had occurred as alleged and that the medical evidence of record established a diagnosed medical condition. However, the claim remained denied as the medical evidence of record was insufficient to establish causal relationship between the diagnosed condition and the accepted February 14, 2019 employment incident. The Hearing representative also noted that appellant underwent right shoulder surgery on July 15, 2019 under OWCP File No. xxxxx9378.

On January 23, 2020 appellant, through counsel, requested reconsideration and submitted additional medical evidence. By decision dated April 21, 2020, OWCP denied modification of its October 31, 2019 decision.

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 issues depends on frequent cross-referencing between files.5 For example, if a new injury case is reported for an employee who previously filed an injury claim for

4
The record reflects that appellant has previously accepted claims for right hip and thigh strain under OWCP File No. xxxxxx151, disorder of bursae and tendons in the right shoulder (right rotator cuff syndrome/tendinopathy) under OWCP File No. xxxxxx989, and aggravation of rotator cuff muscle/tendon strain of the right shoulder under OWCP File No. xxxxx9378. 5 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).

2 a similar condition or the same part of the body, doubling is required.6 In the present claim, appellant alleged injuries to her right shoulder, lower back, and right hip. OWCP had previously accepted that she sustained right hip strain under OWCP File No. xxxxxx151, disorder of bursae and tendons in the right shoulder (right rotator cuff syndrome/tendinopathy) under OWCP File No. xxxxxx989, and aggravation of rotator cuff muscle/tendon strain of the right shoulder under OWCP File No. xxxxx9378. However, it has not administratively combined the present claim with her previously accepted claims pertaining to right shoulder and hip conditions.

For a full and fair adjudication of appellant’s current claim, the case must be returned to OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx151, xxxxxx989, and xxxxx9378.7 Following this and other such further development as OWCP deems necessary, it shall issue a de novo decision.8

IT IS HEREBY ORDERED THAT the April 21, 2020 decision of the Office of Workers’ Compensation Programs is set aside and this case is remanded for further proceedings consistent with this order of the Board.

Issued: May 27, 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

6
Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).
7
Id.
8
R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., supra note 6.

3