S.G. and U.S. Postal Service, Post Office, Irvine, CA (Board decision, September 27, 2021)

ECAB final decision. The Board set aside OWCP’s denial and remanded to combine related arm injury files. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

S.G. sought reconsideration of a denied occupational disease claim involving her hands and arms. She also had an earlier accepted carpal tunnel and ulnar tunnel claim, but that file was absent from the record under review. The Board held that the related files had to be combined to assess whether the reconsideration evidence showed clear error. It set aside OWCP’s denial and remanded.

Decision snapshot

• Authority: FECA Procedure Manual, Chapter 2.400.8(c), on combining related claim files.
• Outcome: Reconsideration denial set aside; related arm injury files must be combined.
• Key point: OWCP must assemble related claim records before resolving clear-error reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.G., Appellant
)
)
and ) Docket No. 21-0396
) Issued: September 27, 2021
U.S. POSTAL SERVICE, POST OFFICE,
)
Irvine, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Sarah Holder, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 28, 2021 appellant, through counsel, filed a timely appeal from an August 3, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 21-0396.2

On November 19, 2018 appellant, then a 52-year-old city carrier, filed an occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to factors of her federal employment, including delivering mail and parcels for seven hours a day, casing mail for approximately an hour to an hour and a half each day, lifting tubs and trays of mail

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 The Board notes that, following the August 3, 2020 decision, appellant submitted additional evidence to OWCP.
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. weighing approximately 25 pounds, and pushing hampers of mail since she began working with the employing establishment in 1984. She also noted that she had a previously accepted claim for carpal tunnel syndrome. 3 Appellant stopped work on October 22, 2018.

OWCP subsequently received a January 18, 2019 narrative medical report in which Dr. Edward Mittleman, Board-certified in family medicine. Dr. Mittleman evaluated appellant for pain in her hands, wrists and arms in relation to her repetitive employment duties and noted her previous diagnosis of bilateral carpal tunnel syndrome accepted under OWCP File No. xxxxxx391.

By decision dated February 21, 2019, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish that her diagnosed medical condition was causally related to the accepted factors of her federal employment.

On March 5, 2019 appellant requested reconsideration of OWCP’s February 21, 2019 decision and submitted additional evidence, including medical reports dated February 12 and February 26, 2019 in which Dr. Charles Herring, a Board-certified orthopedic surgeon, opined that appellant’s employment duties clearly contributed to the development of her diagnosed conditions .

On April 15, 2019 OWCP referred appellant, the case file, a statement of accepted facts (SOAF) and a series of questions to Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA), for an opinion on appellant’s employment-related condition. In a medical report of even date, Dr. Fellars reviewed the SOAF and medical evidence of record. He disagreed with Drs. Mittleman and Herring’s opinion that appellant had bilateral carpal tunnel syndrome, reasoning that the electrodiagnostic studies were negative and that her subjective complaints were not supported by objective findings.

On April 17, 2019 OWCP referred appellant to Dr. Steven Ma, a Board-certified orthopedic surgeon, for second opinion evaluation. In a June 4, 2019 medical report, Dr. Ma reviewed the SOAF and evidence of record. He noted her previously accepted claim for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx391. Dr. Ma opined that, based on the medical evidence of record and his examination, there were no diagnoses caused by appellant’s employment duties.

By decision dated July 23, 2019, OWCP denied modification of its February 21, 2019 decision. It found that the weight of the medical evidence rested with the June 4, 2019 report of Dr. Ma.

On July 29, 2020 appellant, through counsel, requested reconsideration of OWCP’s July 23, 2019 decision and submitted additional medical evidence.

By decision dated August 3, 2020, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

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

3
OWCP previously accepted appellant’s April 21, 2008 occupational disease claim under OWCP File No. xxxxxx391 for bilateral carpal tunnel syndrome and bilateral ulnar tunnel syndrome.

2 correct adjudication of the issues depend on frequent cross-referencing between the files.4 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. 5 Herein, appellant has an accepted claim for bilateral carpal tunnel syndrome, assigned OWCP File No. xxxxxx391. She subsequently filed an occupational disease claim for the same region of the body on November 19, 2018, assigned OWCP File No. xxxxxx019, which is the claim presently before the Board. The evidence pertaining to OWCP File No. xxxxxx391, however, is not part of the case record presently before the Board.

For a full and fair adjudication, the case must be returned to OWCP to administrative ly combine the current case record with OWCP File No. xxxxxx391 so it can determine whether appellant has submitted sufficient evidence to demonstrate clear evidence of error. Following this and such further development as OWCP deems necessary, it shall issue an appropriate decision. Accordingly,

IT IS HEREBY ORDERED THAT the August 3, 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: September 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).
5
Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

3