M.H. and Department of Veterans Affairs, VA Medical Center, New York, NY (Board decision, January 11, 2022)

ECAB remand decision. The Board set aside OWCP's September 15, 2020 denial of M.H.'s right shoulder injury claim. OWCP must combine her related claim files and issue a new decision after reviewing their evidence. Whether the claimed aggravation is compensable 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 VA nurse said that pushing a wheelchair at work aggravated a preexisting right shoulder condition. OWCP denied the claim for lack of medical evidence linking the condition to that incident. The Board found that two earlier claim files also involved her shoulder or neck and had not been combined with the current file. It held that a full review required OWCP to combine and consider the related files. The Board set aside the denial and returned the matter for a new decision without resolving causation itself.

Decision snapshot

• Authority: OWCP file management procedure for related injury claims.
• Outcome: Shoulder injury claim denial set aside; related files to be combined and reconsidered.
• Key point: Related shoulder and neck claim files had to be reviewed together for a fair decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.H., Appellant
)
)
and ) Docket No. 21-0250
) Issued: January 11, 2022
DEPARTMENT OF VETERANS AFFAIRS, VA
)
MEDICAL CENTER, New York, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Paul Kalker, 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 December 8, 2020 appellant filed a timely appeal from a September 15, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 21-0250.

On November 13, 2018 appellant, then a 70-year-old registered nurse, filed a traumatic injury claim (Form CA-1) alleging that on October 5, 2018 she aggravated a preexisting right shoulder condition when pushing a wheelchair while in the performance of duty. 2 She did not stop work.

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 has a previously accepted February 14, 2000 traumatic injury claim for cervical strain with radiculopathy under OWCP File No. xxxxxx610. She also filed a prior claim for a December 10, 2014 traumatic injury to her right shoulder and chest under OWCP File No. xxxxxx009, which OWCP denied. Appellant’s claims have not been administratively combined. By decision dated September 17, 2019, OWCP accepted that the October 5, 2018 incident occurred as described. However, it denied appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to establish a causal relationship between the accepted employment incident and her diagnosed medical conditions.

On July 2, 2020 appellant, through counsel, requested reconsideration of the September 17, 2019 decision.

By decision dated September 15, 2020, OWCP denied modification of its prior 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. 3 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. 4 Herein, appellant’s claims under OWCP File Nos. xxxxxx610 and xxxxxx009 also involved injuries to the right shoulder and/or neck, which are at issue in the present claim under OWCP File No. xxxxxx615. For a full and fair adjudication, this case must be returned to OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx610 and xxxxxx009, so it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s current traumatic injury claim.5

Following this and other such further development as OWCP deems necessary, it shall issue a de novo decision.

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).
4
Id.; M.L., Docket No. 20-1176 (issued April 29, 2021); L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019). 5 Supra note 3 at Chapter 2.400.8(c)(1); W.D., Docket No. 19-0961 (issued March 31, 2021); L.P., Docket Nos.
18-1558, 18-1568 (issued June 21, 2019).

2
 IT IS HEREBY ORDERED THAT the September 15, 2020 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: January 11, 2022
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